text:
    JOHN ROCHEL et al. v. STATE.
    No. A-3709.
    Opinion Filed Feb. 25, 1922.
    (204 Pac. 466.)
    (Syllabus.)
    1. Trial — Instructions—When Refusal of Instruction on Circumstantial Evidence not Error. Where part of the evidence is direct and part circumstantial, it is not error to refuse to give an instruction on circumstantial evidence.
    2. Trial — Instruction on Alibi and Reasonable Doubt not Misleading. Instruction on the subject of alibi examined, and held not such as to operate in a reversal of the judgment, and not misleading when considered with another instruction given.
    3. Robbery — Evidence Sustaining Conviction. Evidence examined, and held sufficient to support the verdict and judgment.
    Appeal from District Court, Bryau County; George S. March, Judge.
    John Eoehel, Walter Rochel, and Cecil Turnbull were convicted of the crime of conjoint robbery, and each sentenced to serve a term of five years’ imprisonment in the state penitentiary, and each appeals.
    Affirmed.

      This prosecution was instituted by information filed in the district court of Bryan county by the county attorney thereof on the 18th day of November,- 1918.
    The information jointly charged John Rochel, Walter Rochel, and Cecil Turnbull) with the crime of conjoint robbery alleged to have been committed in said county on the 27th day of -October, 193 9. The person alleged to have been robbed was Carl Simmons. The trial occurred in October, 1919, and resulted in the conviction of all of said defendants with punishment of each assessed- at five years’ imprisonment in the state penitentiary at McAlester.
    The alleged robbery occurred on a public highway on Sunday the 27th of October, 1918, at about 8 o’clock p. m. According to the state’s theory, the robbery was the result of a conspiracy entered into between these defendants. Carl Simmons, the young man robbed, had come to the town of Achille that afternoon about 5 o’clock on the train from Den-ison, Tex. He testified that his intention was to make a visit to some friends at the town of Tuba, a village about 10 or 11 miles east of Achille; that he made inquiry to procure a service car for that purpose, and was introduced to Walter Ro-chel, who was at that, time running a Ford car in public service at the town of Achille. Simmons testified that Rochel wanted to charge him more than he was willing to pay to make the trip, at first asking him $15 and thereafter claiming that he (Rochel) had received a telephone communication from somebody close to the town of Yuba, and that he would make the trip for $7.50. The testimony showed, however, that the telephone line between Achille and Yuba was not in working order that day, and that no phone calls had come in over it. After Simmons and Walter Rochel had failed to reach an agreement between them as to the taxi fare to be charged Simmons, and after some conversation between them Walter Rochel wanted Simmons to go out and see some girls with Mm, and when Simmons refused he asked Simmons to take a ride with him, wMch Simmons consented to do* .It was then 7■ 30 in the evening, and, according to Simmons, he and Walter Rochel got into Roehel’s car and started to take a ride in an easterly direction from the town of Aehille. It had drizzled rain that day, and the roads were muddy and slippery. Simmons testified that the ear was going along nicely until they had got about a quarter of a mile east of Aehille when Walter Rochel commenced choking the feed of the gas to the engine, and the car then began to miss fire and pop; that when they got about a half mile from town where there was a place in the road they could turn around, instead of turning around, Walter Rochel turned on a public Mghway leading to the south; that the ear was then going 2% or 3 miles an hour; that they drove south on this road 300 or 400 yards, when two men appeared in front of them with their faces partially masked with handkerchiefs; that Walter Rochel drove the car up to these two men and stopped; that they had not been ordered to stop at that time; that] as soon as the car stopped one of the men threw a pistol down on them, and said, “Throw up your hands.” Thereupon Simmons testified that he got out of the car with his hands up, and that Walter Rochel followed him out of the car, but did not put his hands up until after he got out of the ear; that the person who held the pistol on Mm was Cecil Turnbull,' and that the other person in the road was John Rochel; that John Rochel searched the witness Simmons and took from his person at that time a sum approximately $20 in silver and currency, also a gold watch and chain and a fountain pen; that they searched a couple of the pockets in the clothing of Walter Rochel, and then told them, “Get in that car and go on to Durant, you s-of b’s.”
    That they then drove south a little ways and turned around and started back to Aehille, and on the way back Walter Rochel said: “That was a hell of a come-off, wasn’t it?” Atad afterwards, when they had gotten pretty close to the town of Achille, Walter Rochel said: “Now, you wait. I will get the law. I know them and you don’t.” That thereafter the witness got out of Rochel’s car in the town of Achille, ¡and that Walter Rochel drove around and put his car up. The witness then reported the robbery to the officers, and immediately swore out warrants of arrest against each of these defendants. That after Walter Rochel had gone away with the car he (Rochel) came back to town, and went into the telephone office. That shortly thereafter he saw both John Rochel and Cecil Turnbull at different times go into the telephone office. This was about 30 minutes after they had returned to town. Thereafter, while witness ^vas in the drug store of the town talking to the officers, John Rochel came in, and witness said, “There is the fellow that went through my pockets,” and John Rochel replied, “You are a lying s-of b-.” Witness further testified that after the examining trial in the town of Achille Walter Rochel said to him: “You s-of b-, we will get you after the trial.”
    On cross-examination, as to the identity of Cecil Turn-bull, the witness testified that he had seen Cecil Turnbull sitting in front of a store in the town that afternoon; that he was not positive that he could identify Cecil Turnbull; that he had seen Cecil Turnbull with Walter and John Rochel that afternoon when he first came to town, and that he judged it to be Cecil Turnbull from his size; that the motor of the car was left running when they got out at the time of the robbery and that the parties who did the robbing were up pretty close to them; that it was a dark night, and the only light at the scene of the robbery came from the headlights in the car.
    A. M. McPherson testified, in substance: That he was a deputy sheriff at Achille. That he arrested the defendants that night for the robbery of Carl Simmons; that Carl Simmons accused John Roehel of being the man who went through his pockets, and that Roehel said, “Yon are a lying s- of b-That he searched the defendant John Rochel immediately after his arrest, and found $4 or $5 in his left-hand outside coat pocket. (This wa¡á the pocket that Simmons said that Roehel put part of his money in.) That when Turnbull was arrested Simmons said he looked to be about the size of the man that was with Rochel, but he could not identify him positively; that when Walter Rochel was arrested he said that he was robbed too; that they had got his wrist watch; that he had the strap around his- wrist; that they had taken his watch out of it and thrown the strap back into the ear. But the witness further testified that afterwards Walter Ro-chel had told him that he had left his watch with Miss Carrie Dobbins, the operator at the telephone station; that the next morning after the robbery the witness made two trips out to the scene of the robbery; that Mr. Simmons had showed him where the robbery had taken place; that he found some tracks “like where a man had been standing; some where they had been walking away from there; also walking up that way”; that he made measurements of these tracks, and also meas-ments of the shoes of the defendants John Rochel and Cecil Turnbull, and that the tracks and shoes measured to be the same size; that afterwards John Rochel and Cecil Turnbull were taken to the scene of the crime, and placed their feet in the tracks found there, and that their feet fit these tracks; that one of the tracks was made by a new pair of shoes, and one by a pair of shoes that had been worn considerably; that Céeil Turnbull was wearing a new pair of shoes, and John Rochel was wearing an old pair of shoes.
    J. W. Barnett, a justice of the peace at Aehille, testified that he was present when John Roehel was searched after the robbery, and was also present when Walter Rochel and Cecil Turnbull were brought in. This witness heard what was said and saw wbat was done at those; times, and Ms testimony tends to corroborate that of the' Witness McPherson.
    D. B. Yerdery testified, in substance: That he lived at Achille; was the agent for the Missouri, Oklahoma & Gulf Railroad. That he worked at the depot until after the train came in from the south on the afternoon of October 27, 1918, and then went over to the bank and did some, work there and then started to go home. This was between 5 and 6 o’clock in the evening. That when he left the bank and came back towards the depot he saw John Roehel and Cecil Turnbull and Walter Roehel and Carl Simmons. Walter Roehel and Carl Simmons were immediately across the street, sitting on some seats, in front of a store, and Cecil Turnbull and John Roehel were on the depot platform, standing.by the side of the baggage truck, and they walked off south down the railroad track.
    Ella McBride testified: That she was 24 years old and lived in Achille. That she remembered the occasion of the robbery. That she lived southeast of the depot; that she saw two boys that she took to be John Roehel and Cecil Turnbull walking south along the railroad on the afternoon of the robbery after the train had gone north, but before sundown. That they were not very far south of the depot, and were walking in the direction of Cecil Turnbull’s home, which was south from there and east of the railroad track. That she did not watch them to see which way they went. The last, time she saw them they were on the track.
    Demie Baldwin testified: That she was 17 years old, and. lived at Achille. That on the night of the robbery she was at Mrs. Scribner’s house about three-quarters of a mile north: of that town. That Mrs. Scribner was sick, and that she had gone out there to stay with them. That John Roehel and his little brother Hewey came to the house that night, and that John Roehel had a watch in the inside lining of his coat and pulled it out to see what time it was. This was 20 minutes after 1 o’clock. That the watch was a little round gold watch something like a lady’s watch. The witness did not know whether it was an open-face or a hunting case watch, or whether he had a chain on it or not. That John Bochel stayed there .about an hour and talked to Lelah Scribner, who was his sweetheart. That John Bochel and Lelah Scribner had a private conversation together, and John Bochel was pale and seemed to be nervous.
    Annie Baldwin, a sister of Demie Baldwin, testified that she was 18 years old and was also at the Scribner home that night. Her testimony corroborates that of Demie Baldwin.
    Carrie Dobbins testified: That she was running a telephone switchboard, and had charge of the long-distance calls at Aehille on the day of the robbery. That the long distance line between Aehille and Yuba was out of order on the day of the robbery, and that no calls came over it that day. That the first call that came over the line was on the evening of the next day. That John Bochel was the lineman and night operator for the telephone company. That she remembered seeing Walter Bochel in the telephone office that afternoon between the hours of 4 and 8 o’clock. That the line between Aehille and Yuba was not down that day, but simply out of order. That it had been raining that day. That Walter Bo-chel was the first person to tell her about the robbery. That Cecil Turnbull and John Bochel came into the telephone office after Walter was up there, and just at the time that the witness started to leave. That Walter Bochel owned a wrist watch.- That he did not have it that evening. He first said that John had his watch, and then he said he had left it at home. That Walter’s watch was an open-face gold wrist watch.

      W. M. Kemp testified in behalf of the defendants that he was acquainted with the roads and section lines east of Achille, and knew where the gin was located. Witness identified a map or diagram of these roads. And the substance of his testimony was that it was something like a mile from the Palace Drug Store in Achille to the point where the robbery took place.
    H. G. Grinsley, for the defendants, testified in substance the same as the witness Kemp.
    Wade Grimes testified in substance that he was acquainted with the defendants, and was working in the Wilkins Drug Store in Achille-^on the day that the robbery took place. That the drug store is located about a block and a half west of the depot on the',north side of the street. That the restaurant is opposite on the south side of the street. That the last icustomers he waited on in the drug store that evening were Cecil Turnbull, Bob Ozment, Clyde McPherson, and somebody else. He did not remember who the fifth person was. That he would have judged it to have been about 7 o’clock in the evening.
    Clyde McPherson testified substantially the same as the witness Grimes, as did also Bob Ozment.
    W. F. Maxwell tetified, in substance: That he lived at Achille, and had been living there four years. That he was acquainted with the defendants. That he lived with his father and mother and was in the mercantile business. That on the Sunday of the robbery he had been to Durant, and returned home about 3 o’clock in the afternoon. That between 7 and 8 o’clock that evening he went down town to get a lunch. That after he ate his lunch he went back to his store, which was in the first block west of the depot on the north side of the street. That he passed Wilkins Drug Store and saw Bob Ozment, Wade Grimes, Clyde McPherson, Cecil Turnbull, and somebody else in there. Witness did not know wbo tbe other person was. That as he was going to his store he saw an automobile pass, a Ford ear. That he took it to be Walter Rochel driving the ear, and there was somebody with him, and they were going east towards the depot.
    Walter Rochel, one of the defendants, testified: He was 18 years old, and lived at Achille. That in October, 1918, he was running a service ear at Achille; had been running it since June of that year. That he first met the prosecuting witness Simmons about 5 oclock on October 27th, 1918. That Simmons wanted him to take him to Yuba in his service car, and said maybe he would want to go on to Denison, and asked what the charges would be. Witness told him $7.50 to Yuba and $15 if he went on to Denison. Simmons said, “I¡ don’t know whether I will go on or not. I will see you directly,” and walked off. Rochel then went up to the telephone office to tell his brother, John, that he couldn’t work for him that night; that he was going to make a drive in his service car. That John was not up there, and he told Miss Carrie Dobbins to tell him. That he afterwards saw his brother John and later also saw Simmons again. Simmons was out in front of the restaurant, “ and I told Mr. Simmons, ‘Let’s go,’ and he came out and got into the car, and we started on our way to Yuba. It was dark, and the lights were burning in the car. It had been drizzling rain,' and the roads were muddy.” Witness said: He did not have his watch with him that night; but had on the leather strap that the watch was: carried in. That he had left his watch on the dresser at home, and later found out that his brother John had the watch. That he had since traded the watch to Steve Dwight for another watch and $12.50 in money. That he thinks Dwight now lives in Fort Worth, Tex. That when they started out on the trip to Yuba the car was not running well. The engine was popping. That he reached over and adjusted the carbureter when they got ■out to about where the gin was. That after that it ran all right. That he was driving about ten miles an hour. That when he got to the corner to turn south there were some weeds •on the right hand side of the road and he honked the horn just before turning the curve. That in crossing the mud holes he had to drive his car in low. That after they had turned ■south and gone a quarter of a mile two fellows came up to them and one of them took out a gun and held it in their faces and said: “You Dukant s— of b’s, get out of it.” Witness -then said that he reached down and pulled up the emergency brake and left the motor running and the lights burning, and held his hands up, and got out on the side of the car the steering wheel was on. That Simmons got out on the other side. That he (Roehel) walked around in front of the car to the side where Simmons was, and some one searched them. That it was not the -fellow with the gun. That these fellows had handkerchiefs partly over their faces. That it was a dark night. That they took a pocketbook off of him. That he could not tell exactly how they were dressed. That he was positive that the man that searched him was not his brother John, although he was about the same height as his brother John. That he got $19 ..and some odd cents off of him, some of which was currency in a black bill fold; a $10 bill, a $5 and two $1 bills. That they took the silver out of his trousers pocket. That the fellow that held the gun seemed to be a little, short, chunky fellow. That he was not Cecil Turnbull. That they searched Simmons first and witness afterwards, and then told them to ■:get in the car. They they got back into the car and these fellows were standing on the side of the road, and told them to go on .and not come back that way. That they went on down the .road and Simmons said: “You take me over to Yuba. I .haven’t got the money, but I will give you a check.” Witness replied, “Let’s go back and report to the law.” Then they rturned around and went back by the place where they had been robbed. Witness told Simmons be would report to “the law,” after they got back to town. That witness let Simmons out of the car and went down to his home and told his father and mother that he had been robbed. That he did not tell Simmons that they had taken a watch off of him nor show him the empty watch ease. That he did tell Simmons that this was the second time that he had been robbed, and did tell him that the first time he was robbed they took his watch. That after he had gone home and put his ear up he came back up town to the telephone office, about four blocks away. That he went up there to tell his brother that he had been robbed. That his brother was not there, but came in in about five minutes. But before his brother came in he had told Carrie Dobbins that he had been robbed. That when he told his brother John that he had been robbed John said, “I will go down to the drug store and see.” And John went away, and then Cecil Turnbull came up to the telephone office, and then “Milt McPherson came up there and arrested Cecil Turnbull and me.” That Milt McPherson left them in John’s? room, in the telephone office' after arresting them, with the understanding that they were not to leave there. That John Rochel afterwards left the room that night, and was gone something like an hour and a half. Witness also denied telling Carl Simmons that he had received a phone message from out about Yuba that day, and that he would take him for half price after that. Witness denied that he and his brother and Cecil Turnbull had planned this robbery. That before he left with Simmons he did not know where Cecil Turnbull and John Rochel were. That he had seen Cecil at the drug store about five minutes before he left to go to Yuba.
    On cross-examination the witness admitted that after he got back to town, after the robbery and after putting his car up, instead of notifying the officers of the robbery, he went up to the telephone office where he said Miss Dobbins was, and that she stepped out, and that several calls came in over the long-distance phone. That he did not remember where these calls came from or who. put them in, but that he commenced to make out tickets for them, and was writing when the officers ■arrested him. Witness also admitted that he asked the Simmons boy on the way back from the robbery to lef liim report it to the officers. Witness denied telling Mr. McPherson that ■the robbers had gotten his wrist watch. Witness said he did not remember telling the officers the next day after the robbery that the robbers had gotten thirty odd dollars off of him instead of nineteen. Witness said his brother John did not ■own a watch; that John had the witness’ watch on the day of the robbery.
    Carrie Dobbins, in rebuttal for the state, testified that Walter Rochel did not tell her anything about his brother, nor tell her that he was going to the country.
    Jim Kersey, in rebuttal, testified in substance that he lived at Durant, that he was sheriff of Bryan county in October, 1918, went down to Aehille on the day after the robbery, heard ■a conversation Walter Rochel had with the assistant county attorney, in which Walter said the robbers had "taken thirty some odd dollars off of him.
    A. W. Barnett, J. M. Bamer, L. F. Elliott, and F. M. Elrod all testified that the general reputation of Waller Rochel in the community of Aehille was bad for truth and veracity.
    Utterback & McDonald, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. ‘Gen., for the state.
   MATSON, J.

(after stating the facts as above). It is •first contended that the trial court erred in failing and refusing to give an instruction on the law of circumstantial evidence as applied to the guilt of the defendant Cecil Turnbull.

Counsel for the defendant requested the following instruction on this subject:

“In this case the state relies upon circumstantial evidence to convict the defendant, Cecil Turnbull, and in this connection you are instructed that to warrant a conviction, the facts necessary to establish the guilt of the said Cecil Turnbull must be proved by competent evidence beyond a reasonable doubt, and the facts and circumstances proven should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of guilt to produce in your minds a moral certainty that the accused committed the offense; and if they fail to so establish the guilt of the accused, then you should acquit him. ”

The foregoing instruction was refused and proper exceptions saved, and the trial court failed to give an instruction on the question of circumstantial evidence as applied to the defendant Cecil Turnbull.

The prosecuting witness testified, in chief, that one of the men who robbed him and who threw the gun down on him was Cecil Turnbull. Further, prosecuting witness testified that about his only means of identifying Turnbull was by his size; that he couldn’t swear positively about Turnbull; that he had seen him that afternoon, but had not spoken to him or heard him talk. In addition to the foregoing testimony of the prosecuting witness, the state introduced a number of circumstances tending strongly to connect defendant Turnbull with the commission of the crime.

In support of the contention that it was error for the trial court to refuse to give the foregoing instruction, it is argued that the direct evidence of the prosecuting witness, as to the identification of Turnbull, is so weak and unsatisfactory that, unsupported by tbe circumstantial evidence in tbe case, it practically amounts to no incriminating evidence against Turn-bull, and tbe court should have, for that reason, given tbe requested instruction.

Tbe fact remains, however, that part of the evidence was direct and part circumstantial. This court has never held it to be reversible error to refuse to give instruction on circumstantial evidence unless tbe prosecution was based solely upon circumstantial evidence. Had tbe trial court instructed tbe jury that tbe evidence against Turnbull was wholly circumstantial, it would have been an incorrect statement; and, while the direct evidence as to bis identification may not have been as positive and convincing as it was to the identity of tbe defendant John Rochel, yet tbe weight of this evidence was exclusively for the jury, and we do not concur in the view entertained by counsel for tbe defendant that tbe unconvincing nature of tbe direct evidence against Turnbull required tbe trial court to give an instruction on circumstantial evidence as to him. This was a joint trial and tbe evidence as to each of tbe defendants was to a considerable extent based upon circumstances. As we view it, it would have been unfair to tbe other defendants to have singled | out either of the defendants and told tbe jury that as to him tbe evidence was wholly circumstantial.

It is also contended that the court erred in giving tbe following instruction:

"The defendants John Rochel and Cecil Turnbull contend as a part of their defense herein that they were not present at the time and place of the alleged robbery in question, and that they were at other and different places, and that therefore they could not have been and were not the parties who robbed the witness Simmons, if you find he was robbed. You are therefore charged that if you believe from the evidence that these two defendants were at other and different places than the place of the alleged robbery at the time thereof, or if you have a reasonable doubt thereof, then and in that event you. should find said defendants not guilty, and so say by your verdict.”

In support of this assignment the following argument is advanced:

“Instruction No. 7, heretofore quoted, was incorrect. The court was requested, as shown in the record at pages 299 and 300, to instruct the jury as to the alibi of Cecil Turnbull, and as to the alibi of John Rochel, and each one was entitled to a separate and distinct instruction on this proposition; or if combined, as the court attempted to do, then the jury should have been told that this applied to each of the said defendants.
“Under instruction No. 7 the first error we wish to call attention to is that the defendants are joined so that the jury was not advised that they could acquit Cecil Turnbull, if they had a reasonable doubt of his presence at the commission of the offense, and convict Rochel. Neither were they told that they could acquit Rochel and convict Turnbull; but the instruction states emphatically that they must be considered together, and if the alibi failed as to one, it failed as to both. This is the only conclusion you can reach after carefully reading paragraph 7 of the court’s charge. They are referred to as ‘they,’ ‘these two defendants,’ and ‘said defendants,’ using the plural all the way through the instruction's. This was done in the face of the fact that each of said defendants had requested a separate instruction. The injury done by this charge can readily be seen by reading the evidence of the defendant’s witnesses, Grimes, McPherson, Ozmont, and Maxwell, all shown in this record, pages 194 to 223, inclusive. Of these witnesses every one was positive that Turnbull was in the drug store at the time Maxwell saw Walter Rochel and the prosecuting witness drive out of town. None of these witnesses named John Rochel as having been present at that time. However, the court’s charge required the jury to find that John Rochel was with. Cecil Turnbull at that time and place, otherwise they could not acquit Cecil Turnbull.”

We think the instruction is not open to the criticism lodged against it. Apparently the court did not tell the jury that these two defendants, claimed to have been together at another place at the time of the commission of the robbery, but “that they were at other and different places.” Neither the defendant John Rochel nor the defendant Cecil Turnbull took the witness stand in his own behalf. There is some evidence by three or four witnesses that Cecil Turnbull was in the town of Achille about 7 or 7:30 o’clock in the evening prior to the commission of the robbery, about three-quarters of a mile southeast of that town about 8 o ’clock that evening. This is the only evidence on the question of alibi as to the defendant Turnbull. It was not such as to preclude his presence at the time and place of the robbery, neither was there any evidence of alibi as to John Rochel such as would preclude his presence at the time and place of the robbery. Walter Rochel, the other defendant, was in the automobile with the prosecuting witness at the time the robbery took place, and claims that he was also robbed. His testimony in many respects corroborates that of the prosecuting witness, especially as to the circumstances under which the robbery was committed;- and, while he says that it was not Cecil Turnbull and John Rochel who robbed the prosecuting witness, he did admit on cross-examination that the two parties who held up the prosecuting witness answered the description of John Rochel and Cecil Turnbull as to height and general appearance. And the acts and conduct of the defendant Walter Rochel immediately before, at the time of, and immediately subsequent to the robbery were such as to convince an unprejudiced person that he had knowledge that the robbery was going to take -place, and knew who would execute it.

Further, we believe it is apparent from a consideration of tbe court’s instructions as a whole the jury could not have •been misled into believing that the alleged alibi of Cecil Turn-bull depended upon that of John Rochel, or vice versa, and that they could not acquit one of such defendants without acquitting the other, because, subsequently, the trial court in his general charge gave the following instruction:

“The defendants, and each of them, are presumed to be innocent until his guilt is established by the evidence beyond a reasonable doubt, and the burden is upon the state to so establish their guilt. If, therefore, after a careful consideration of all the evidence in the case you believe beyond a reasonable doubt that the defendants, or either of them, are guilty, then you should so say by your verdict, but if after such consideration of the evidence you entertain a reasonable doubt as to their guilt, or either of them, you should acquit him or them.”

The instruction given on the subject of alibi was not such as to operate in a reversal of the judgment. Spess v. State, 20 Okla. 94, 201 Pac. 395. And the instructions as a whole were sufficient to inform the jury that they could acquit either of the defendants as to whom they might entertain a reasonable doubt.

If Walter Rochel was a conspirator in the commission of this robbery, and the jury so found by the verdict, and it is practically admitted in the brief of counsel for plaintiff in error that as to Walter Rochel and John Rochel the evidence is sufficient to convict, there can be no doubt but that a third party was also involved in it. The jury reached the conclusion from the evidence that this third person was Cecil Turn-bull. We are impressed with the belief, from an impartial consideration of all the evidence in this ease, that as to the guilt of Turnbull the jury reached the right conclusion. We find no error committed against either defendant sufficiently prejudicial to authorize a reversal of the judgment, and the same is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: PER OURIAM.

license: Public Domain

text:
    Ex parte WALTER DODDS.
    No. A-4200.
    Opinion Filed March 2, 1922.
    (204 Pac. 653.)
    Original application by Walter Dodds for writ of habeas corpus to be admitted to bail.
    Bail allowed.
    S. M. Rutherford and O. BO. Tully, for petitioner.
    Geo. F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER OURIAM.

The petitioner, Walter Dodds, was charged with the murder of John Sellers at Eufaula, in McIntosh county, on the 28th day of January, 1922, and was committed without bail to answer this charge by the examining magistrate. Later the petitioner made application to the district judge of McIntosh county to be admitted to bail, and the district judge upon a hearing denied the application.

There is a direct conflict between the evidence for the state and the evidence for the petitioner as to the circumstances attending the homicide.

Testifying for the first time on his own behalf upon the hearing of this application, petitioner stated:

‘ “I was stopping at the Sellers Hotel; Alex Sellers and his son, John Sellers, the deceased, being the proprietors. On the day of the homicide I went to the kitchen to get some hot wat.er for my car, and the deceased insulted me. I did not answer him. Later I came back to the hotel, and the deceased said he would stamp me to death and made"for me. He kicked me on tbe leg. My brother was there, and stopped him. I walked out the door to my car. I decided to. check out of the hotel. I went to get my grip, which was in my room. I went up the rear stairway to the third floor to my brother’s room and got his pistol for my protection. I then started down to the second floor to my room to get my belongings, and met the deceased and his father at the foot of the stairs. They made a dash for me and I put my hand in my pocket and said to the deceased, ‘Don’t you come towards me, or I will kill you-’ He hit me in the eye; then they both came at me and knocked me down, and I pulled the trigger. It was a double action pistol. They were both right over me, and I was down when I fired the shots. I didn’t make any threats against the deceased.”

After a careful consideration of all the evidence in the case we are inclined to think that the petitioner is entitled to bail pending his final trial, when the good faith of his defense will be passed on by a jury with the witnesses before them. It is therefore adjudged and ordered that the petitioner be allowed bail in the sum of $20,000. Said bond to be conditioned as by law required, and to be approved by the court clerk of McIntosh county.


author: PER CURIAM.

text:
    Ex parte W. E. ROBERTS.
    No. A-4216.
    Opinion Filed March 3, 1922.
    (204 Pac. 653.)
    Original application by W. E. Roberts for writ of habeas corpus, directed to George Frampton, Sheriff of Comanche County, Okla. On demurrer to the petition.
    Sustained, and petition dismissed.
    C. R. Reeves, for petitioner.
    The Attorney General, opposed.
   PER CURIAM.

This is an application for a writ of ha-beas corpus by petitioner, W. E. Roberts, in which he represents that he is unlawfully restrained of his liberty and imprisoned by George Frampton, sheriff of Comanche county, Okla.; that the cause of said restraint is that petitioner was arrested on the 20th day of February on a warrant issued on a complaint by M. T. Perkins, justice of the peace, charging the defendant with feloniously deserting a minor child. The petition then sets up alleged facts attempting to show that there is no legal obligation on the petitioner to support the said child. No copy of any commitment is attached to the petition.

The Attorney General demurred to the petition on the ground that same did not contain facts sufficient to entitle petitioner to the relief prayed for, and on a hearing of the same it was ordered by the court that the demurrer be sustained and the petition dismissed.


author: BESSEY, J.

text:
    Ex parte MRS. CHARLES DAUGHERTY et al.
    No. A-4165.
    Opinion Filed March 8, 1922.
    (204 Pac. 937.)
    (Syllabus.)
    1. Statutes — Subjects and Titles — Invalidity of Provision for Trial of Municipal Offenses by Justice' of the Peace or County Court. Section 1 of chapter 147, Session Laws of 1915, as amended by the Session Laws of 1917, p. 190, providing for the trial of municipal offenses before a justice of the peace or the county court, is inoperative, as being in conflict with section 57, art. 5, of our Constitution, providing that every act shall embrace but one subject, which shall be clearly expressed in the title.
    2. Same- — Original or Concurrent Jurisdiction of Municipal Offenses or Means of Taking Change of Venue not Conferred by Act, Held, that this section of the statute, as amended, does not in terms, or by implication, confer, original or concurrent jurisdiction of municipal offenses upon a justice of the peace court or the county court.

      (a) This amendment is not germane to the subject of appeals and cannot be construed as providing a means of taking a change of venue from a municipal court to. any other court.
    3. Municipal Corporations — Police Courts — Penalties Exceeding $20 Fine not Enforceable. It is bieyond the power of a police magistrate, as the law now exists in this state, to! enforce a penalty for the violation of an ordinance, where the' punishment may be a fine in excess of $20, for the nonpayment of which the accused may be imprisoned.
    4. Same — Summary Punishment Without Jury for “Petty Offense/' as Distinguished from “Crime,” Authorized. Police magistrates may punish summarily without a jury one convicted of the violation of a municipal ordinance amounting to a mere “petty offense,” as distinguished from an offense amounting to a “crime” within the meaning of the Constitution.
    (a) As to the meaning and application of the term “petty offense” and “crime,” see the text of the opinion.
    In the matter of the application of Mrs. Charles Daugherty and J. E. Seed for a writ of habeas corpus.
    Writ allowed, and petitioners ordered discharged.
    John S. Burger and M. L. Opperud, for petitioners.
    Eoy W. Cox, City Atty., for the State.
   BESSEY, J.

On the 17th day of December, 1921, a complaint was filed in the municipal court of the city of Blackwell, charging the petitioners, Mrs. Charles Daugherty and J. E. Eeed, with occupying a room for immoral purposes, in violation of Ordinance No. 210 and' amendments' thereto, of the city of Blackwell. On the same day a warrant was issued out of the municipal court, upon authority of which the petitioners were arrested and brought before the municipal court, where they were duly arraigned and pleaded not guilty. On that day the petitioners demanded a trial by jury, whereupon the municipal court made the following order:

“Now, on this 3d day of January, 1922, defendants demanded a trial by jury, and the above cause, remanded to the justice court of E. S. Foster, justice of tbe peace for the city of Blackwell, county of Kay, state of Oklahoma. R. W. Park-Hurst, Police Judge.”

The cause was set down for trial in the justice court on January 3, 1922, at 5 o’clock p. m. The police judge required the petitioners to give bond in the sum of $50 each for their appearance in the justice court. These bonds were accordingly made and approved. The cause was docketed in the justice court, entitled:

“City of Blackwell v. Mrs. Charles Daugherty and J. R. Reed, Defendants.”

Following the caption it is recited:

“This cause received from city police force by change of venue on demand of jury trial.”

The cause then proceeded to trial before a jury of six men, resulting in a verdict of guilty, assessing the penalty at a fine of $100 each and the costs of the action, and judgment was rendered accordingly. Upon the failure of the petitioners to pay the fine and costs, in accordance with this judgment, a commitment was issued by the justice of the peace, pursuant to which the petitioners were incarcerated in the city jail of Blackwell. The petitioners thereupon applied to this court for a writ of habeas corpus, setting up, among other things, that Ordinance No. 210, under which they were convicted, was void, and that E. S. Foster, justice of the peace, had no jurisdiction to try the cause.

Doubtless it was the intention of the police magistrate and the city attorney to carry on this prosecution in compliance with the provisions of chapter 147, Session Laws of 1915, entitled “An act to regulate appeals from judgments of municipal courts, prescribing the procedure thereof, and repealing all laws in conflict herewith,” as amended by House Bill No. 428, Session Laws 1917, p. 190. Section 1 of tbe original act defines tbe term “municipal courts,” and defines an “offense” as “tbe doing of some act, or tbe failure to perform some duty, commanded by some municipal ordinance, * * * for tbe violation of wbicb a penalty” is imposed. Section 2 provides for an appeal from tbe municipal court to tbe county court. All tbe balance of tbe 16 sections of tbe act relate to tbe method and procedure of taking an appeal to tbe county court and tbe mode and procedure of trial on appeal in tbe county court. Section 8 of tbe original act provides that tbe case shall be tried on appeal in tbe same manner that it should have been tried before tbe municipal court, except that upon demand of either party a jury shall be called to try tbe issues. Section 14 of tbe original act provides that any person convicted upon appeal shall be punished by such fine or imprisonment, or both, as may be prescribed by ordinance, including tbe costs in all courts, and that it shall be a part of tbe judgment that tbe defendant stand committed to the city jail until tbe judgment be complied with, and that tbe defendant, when so committed, shall be credited at tbe rate of $1 per day upon tbe fine and costs so assessed against him.

Section 1 of tbe amendatory act (Session Laws 1917, p. 190) is as follows ;■

“Tbe term ‘municipal courts,’ as herein used, is hereby defined to mean and include all courts of tbe state of Oklahoma, organized and existing in tbe various towns and cities thereof, that shall have and possess under tbe Constitution and laws of tbe state, original jurisdiction to bear and determine offenses against ordinances of municipalities, and ‘offense’ is hereby defined to mean tbe doing of some act prohibited, or failure to perform some duty commanded by tbe municipal ordinances, and for tbe violation of wbicb a penalty or punishment is provided. It is further provided that in tbe trial of all cases in said municipal court where tbe offense as defined by the city ordinances is punishable by a fine only, the defendant shall be tried without a jury, but in all cases where the defendant is charged with the violation of a city ordinance, and where said offense may be punishable by imprisonment, the defendant shall be entitled to a trial by a jury in the justice of the peace court within said city, or in the county court of said county, as the case may be, and it shall be the duty of the city attorney to prosecute said offense in such justice of the peace or the county court in the name of the city, said jury to be drawn and selected in the justice court in the same manner as provided by law for juries in said justice of the peace courts, and each juryman shall receive fifty (50) cents per day for each trial, same to be taxed as costs in the ease and jury trials in the county court to be conducted in all respects the same as now provided therein. All fines collected by the justice of the. peace or county court in the trial of such eases shall be paid to the city treasurer and his receipt taken therefor, and all such fines shall be credited to the general fund of such city: And, provided further, that when any person is arrested, charged with an offense, as herein defined, he shall be taken forthwith before the municipal judge, the county judge or some justice of the peace having jurisdiction, and the amount of his bail shall be fixed and an opportunity given him to make such bail and such judge or justice of the peace shall admit said defendant to bail in the amount and manner provided by the ordinance of said city.”

Section 1 of article 5 of the special charter of the city of Blackwell, effective December, 1917, is, in part, as follows:

“A municipal court is hereby established for the city of Blackwell, and to preside over said court there is hereby created one municipal judge; and all proceedings coming before the municipal court in said city shall be heard and determined by the municipal judge. Such court shall have jurisdiction as follows: (1) To have original jurisdiction to hear and determine all violations of the ordinances of said city and violations of this charter; (2) jurisdiction in proceedings had for the collection of licenses, fees, and other revenues as provided by ordinance, except such actions as may fall within the ex-elusive jurisdiction of other courts, or such other actions for violation of city ordinances as may be made triable before other courts by the Constitution and laws of the state.”

Section 4 of the same article is as follows:

“It is hereby made the duty of the city attorney in all cases of arrest for violation of the city ordinances and this charter to immediately cause to be filed before the municipal judge a complaint in writing against such accused person, and the accused person must thereupon be arraigned forthwith before! the municipal judge for his plea; and if the plea be ‘not guilty’ a' trial of the accused must then.be had at once, or at such time as the case may be continued by order of the municipal judge. All fines, collected in criminal actions shall be' turned into the city treasury. ’ ’

By the ordinances of the city of Blackwell it is provided that one found guilty of occupying a room for immoral purposes is guilty of a misdemeanor, and shall be fined in any sum not exceeding $100 and the costs of prosecution. By statute one convicted of a misdemeanor may, upon failure to pay the fine imposed, be imprisoned one day for every dollar of the fine and costs so imposed. Under the circumstances here, there is no statute lodging original or concurrent jurisdiction of municipal offenses with a justice of the peace or county court, unless the amendatory statute (section 1, Session Laws, 1917, p. 190), above quoted, confers such jurisdiction on these courts.

The petitioners attack the validity of the ordinance under which this prosecution was brought and the validity of this statute for the following reasons:

(1) That this section of the statute is unconstitutional, void, and ineffectual, because the subject-matter treated is foreign to and not germane to the title of the act, and has no connection with the object of the balance of its provisions, in violation of section 57, article 5, of the Constitution, providing that every act shall embrace but one subject, which shall be clearly expressed in the title.

(2) That this section of the statute is in violation of section 6, article 2, of our Constitution, providing that justice shall be administered without sale or prejudice.

(3) That the act neither by its terms nor'diy implication confers original or concurrent jurisdiction of municipal offenses upon a justice of the peace or county court.

(4) That if it was the intent of the Legislature, by the passage of this amendment, to provide a method of taking a change of venue or transfer of the cause from the municipal court to a justice of the peace court or the county court, the statute is ineffectual for that purpose, because it provides for no. method of authenticating and transferring the record from one court to another, and that it does not operate to modify or enlarge the jurisdiction of either eourt.

(5) That it was beyond the power of the police magistrate of the city of Blackwell to enforce an ordinance providing for a fine of $100, with imprisonment.

The object of this law, as expressed in the title, is:

“An act to regulate appeals from judgments of municipal courts, prescribing the procedure thereof.”

Section 1 of the act as amended, above quoted, in no way relates to appeals. As has been stated, all of the other sections of the act are germane to that subject. Section 57 of article 5 of our Constitution is, in part, as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title; * * * if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof. ’ ’

To give the above constitutional limitation any effect whatever, it seems clear that it must be made to apply to this section of the statute, the object of which, by no implication or process of reasoning, can be construed as affecting appeals from municipal courts. Pottawatomie County v. Alexander, 68 Okla. 126, 172 Pac. 436; Smith v. Bd. of Com. of Garvin County, 62 Okla. 120, 162 Pac. 463; Lusk v. Starkey, 53 Okla. 794, 158 Pac. 918; Johnson v. Grady County, 50 Okla. 188, 150 Pac. 497; In re County Com’rs, 22 Okla. 435, 98 Pac. 557.

Assuming, for this argument, that this section does not come within the constitutional limitation as stated above, if it was the intention of the Legislature to exact from the accused, as a condition precedent to a trial by jury, that the accused first pay the jury fees, it might be an open question whether that would not be in violation of section 6 of article 2 of the Constitution, providing that justice shall be administered without sale or prejudice. This provision is broader than most constitutional provisions, and was doubtless designed, among other things, to accord to poor persons accused of an offense every right and advantage possessed by those who have money or property. Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823. But since this record does- not disclose that these petitioners were paupers, or that because of their poverty they were deprived of any constitutional right, the constitutionality of this feature of the statute need not here be decided.

The proceedings had in the municipal court and in the justice of the peace court show that it was the theory of both these magistrates and the city attorney that the municipal court alone had original jurisdiction of the offense. If that be true, how, then, did the justice of the peace acquire jurisdiction? The act nowhere, in terms or by implication, confers appellate jurisdiction or secondary jurisdiction upon a justice of the peace. If the act confers any jurisdiction at all upon a justice of the peace, it must be original jurisdiction. We cannot assume that the Legislature intended to lodge with these magistrates a kind of split or divided jurisdiction, in the absence of an express declaration to that effect. The language of the act indicates that it was the purpose of the Legislature that in all cases where the accused could be tried summarily without a jury the action should be commenced and prosecuted to final judgment in the municipal court, but if the action was one in which the accused had a right to a trial by jury the action should be commenced and prosecuted to final judgment before a justice of the peace or county court. The language of the amendment does not justify a conclusion that there was an attempt made here to authorize a change of venue from one court to another. If there was, we think it was an abortive attempt. There is no method provided for authenticating the record, and conveying it to the justice or county court, as a basis for jurisdiction. Ordinarily, changes of venue are taken from one court or district to another having concurrent jurisdiction. The jurisdiction of these magistrates is in no sense concurrent. In cities having special charters, a justice of the peace or the county court is not primarily charged with or responsible for the enforcement of municipal regulations. Both are officers of different subdivisions of the state government.

Viewing this statute from the standpoint of the police magistrate and the city attorney, they seem to assume that the police magistrate had original jurisdiction of the offense, and that later he was empowered to deputize a justice of the peace as a kind of assistant or referee to conclude the proceedings. The jurisdiction of county courts and justice of the peace courts are well and specifically defined by the Constitution and the statutes, and this section of the statute does not operate to modify or repeal the laws defining the jurisdiction of county courts or justice of tbe peace courts. An act of tbe Legislature in wbicb both tbe title and tbe text of tbe act pertain to matters in no way germane to tbe jurisdiction of courts, will not, by implication or judicial construction, operate to modify tbe jurisdiction of established courts. 25 R. C. L. "Statutes — Matters Germane to Subject,” § 90; also sections 170 and 171.

Another statutory incongruity appears here. Both tbe original act and tbe amendment thereto provide for appeals from tbe municipal court to the county court, and tbe amendment attempts to lodge in a state court both original and appellate jurisdiction of municipal offenses. In this case, if the justice of tbe peace bad original jurisdiction only, and not concurrent jurisdiction with tbe police magistrate, tbe appearance of tbe petitioners in the justice court was not in pursuance of original process issued out of such court, but was in pursuance of tbe conditions of a bond exacted by the police magistrate. Such involuntary appearance would not, in our judgment, be sufficient to give tbe justice court original jurisdiction. Onr Constitution and statutes provide that such jurisdiction is predicated upon a verified complaint and warrant issued by the justice, and such coercive involuntary appearance cannot be substituted for these constitutional and statutory requirements. Considering this section of tbe statute from all of its several angles, we hold that it is in conflict with the Con-sitution, because its provisions are not germane to its subject or tbe general purpose of the act, and it contains inconsistent and irreconcilable provisions, incapable of being enforced, and that it is impossible to breathe into it tbe breath of life by any means of rational judicial construction.

Tbe punishment prescribed by this ordinance was beyond the power of tbe police magistrate to enforce. Under the law as it then stood, and now stands, tbe police magistrate was tbe only magistrate with original jurisdiction to try municipal offenses, and since tbe punishment prescribed for the violation of this particular ordinance may be a fine of $100 and costs, with imprisonment, under the former rulings of this court the accused had a constitutional right to a trial by jury in the court of original jurisdiction. Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233; Ex parte Doza, 13 Okla. Cr. 287, 164 Pac. 130; Ex parte Gownlock, 13 Okla. Cr. 293, 164 Pac. 130; Ed Franks v. City of Muskogee, 14 Okla. Cr. 391, 166 Pac. 492; Miller v. State, 17 Okla. Cr. 734, 191 Pac. 1119; City of Blackwell v. Burgett, 14 Okla. Cr. 682, 166 Pac. 442; Ex parte Joe King, 13 Okla. Cr. 51, 161 Pac. 1102. It was held by this court, in the case of Ex parte Johnson, supra:

“The test as to whether or not the accused is entitled to a jury is whether or not the punishment will or might be imprisonment, or a fine and costs in excess of $20 for the nonpayment of which the accused may be imprisoned. The dividing line between mere petty offenses that can be tried summarily without a jury and the graver offenses of a criminal character, where the accused is entitled to a jury, must be 'arbitrarily made at some point. The federal Constitution, the statutes of this state, and decisions of this court have fixed this dividing line at a penalty of $20, including costs.”

The Supreme Court of the United States, the highest court of the land, has spoken in no uncertain terms on this question, and its interpretation of this constitutional question is binding on all law-making bodies and should be followed by this and all other courts. The ease of Rasmussen v. U. S. (decided by the United States Supreme Court in 1905) 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862, was a case involving the right to trial by jury of one charged with keeping a disorderly house in the territory of Alaska, where the punishment prescribed by law was fine or imprisonment in the county jail. The justices all concurred in tbe conclusion that in trials for misdemeanors', in Alaska the accused had a constitutional right to a trial by-jury. This was a well-considered ease, in which three of the justices, Mr. Justice White, Mr. Justice Harlan, and Mr. Justice Brown, wrote separate opinions, giving their separate reasons for the conclusions reached. A part of the opinion of Mr. Justice. Harlan follows:

“The proposition that a people subject to the full authority of the United States for purposes of government may, under any circumstances, or for any period of time, long or short, be governed * * * without regard to the Constitution, is, in my judgment, inconsistent with the whole theory of our institutions.” “No tribunal or person can exercise authority involving life or liberty, in any territory of the United States, organized or unorganized, except in harmony with the Constitution.”

In the ease of Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223, James C. Callan was charged, along with others, in the police court of the District of Columbia with conspiracy. Upon the trial Callán demanded a jury, which was refused, and, having been found guilty by the police magistrate he was sentenced to pay a fine of $25, and in default of payment to suffer imprisonment for a period of thirty days. Callan was released by the United States Supreme Court on a writ of habeas corpus. Mr. Justice Harlan, speaking for the court, said:

“The third article of the Constitution provides for a jury in the trial of ‘all crimes, except in cases of impeachment.’ The word ‘crime,’ in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. In our opinion, the provision is to be interpreted: in the light of the principles, which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offenses punishable by confinement, in tbe penitentiary. It embraces as well some classes of misdemeanors, tbe punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a 'crime’ within the meaning of the third article, or a 'criminal prosecution’ within the meaning of the Sixth Amendment.”

We have not overlooked the fact that in the case of In re Simmons, 4 Okla. Cr. 662, 112 Pac. 951, the court made the declaration that, where an act committed by a person may constitute a crime against the state and a different petty offense against the city ordinance, the two offenses being different, the offender may be proceeded against under either the city ordinance or the state law, or both. This court has no intention of departing from the rule as thus stated in the Simmons Case, but the question of what constitutes a “petty offense” was not well considered in that ease, and this court has subsequently refused to follow the declaration made in that case and in the case of Oklahoma City v. Spence, 8 Okla. Cr. 121, 126 Pac. 701, to the effect that, where the ordinance provides a penalty imposing a fine in excess of $20, with imprisonment, one violating it could be punished summarily by a police magistrate, without a jury. On the contrary, it was held in Ex parte Tom Johnson, 13 Okla. Cr. 30, 161 Pac. 1097, in an opinion written by Presiding Judge Doyle, that an offense under a city ordinance which is also made a misdemeanor by statute, the punishment for which is a fine in excess of $20, with imprisonment for the nonpayment of the fine, or carrying with it a penalty of imprisonment, is not a “petty offense,” and that the accused in such a case has a right to be tried by a jury in the court taking original cognizance of the offense.

We know of no certain method of distinguishing the meaning of the word “crime” in its restricted sense from the term “petty offense,” except by tbe severity of tbe punishment prescribed. There are many grades of assault, ranging from simple assault to murder or rape, and while a police magistrate may have the authority to punish summarily for simple assault, no one would have the temerity to claim that a policé judge, as such, could determine the guilt of one charged with an assault to kill or assault to commit rape. Until the Legislature makes other adequate provisions directing otherwise, in accordance with the Constitution, petty offenses only, within the meaning of the federal Constitution and our Constitution and our general scheme of police regulations, must be tried in municipal courts.

The writ is therefore allowed, and the petitioners ordered discharged.

DOYLE, P. J., and MATSON, J., concur.


text:
    Ex parte MARTHA BLACK.
    No. A-4227.
    Opinion Filed March 10, 1922.
    (204 Pac. 937.)
    Application by Martha Black, for writ of habeas corpus, for discharge from custody on bail.
    Writ allowed, and bail fixed.
    H. Tom Kight, for petitioner.
    Edgar Anderson, Co. Atty., for respondent.
   PER CURIAM.

The petitioner, Martha Black, filed in this court on the 4th day of March, 1922, her petition, praying that a writ of habeas corpus issue for the purpose of admitting her to bail from the custody of J. W. Green, sheriff of Rogers county, Okla., in whose custody she is by order of a commitment of an examining magistrate of said county on the charge of having murdered one Ed Ardinger.

Petitioner avers that she is not guilty of the crime of murder as charged, and that the proof of her guilt of the crime of murder is not evident nor the presumption thereof great, all of which appears from the transcript of the evidence taken at the preliminary examination, a true, correct, and certified copy of which is attached to the petition. As a further ground for relief, petitioner avers that she is a frail, weak, and very nervous woman; that the court fund of Rogers county is virtually exhausted at this time; that no funds are available, nor will any be available, until after the 1st day of July, 1922, for the purpose of impaneling a trial jury in the district court of said county; and that the first opportunity that can be afforded the petitioner for a trial will be the 1st of September, 1922.

As a return to the writ J. W. Green, sheriff of Rogers county, states that the petitioner was placed in his custody on the 23d day of February, 1922, on a commitment issued out of the justice of the peace court of J. E. Long of said Rogers county after a preliminary examination before said justice wherein the petitioner was charged with the murder of one Ed Ardinger, and a copy of the commitment is attached to the return.

The cause was submitted on the 6th day of March, 1922, at which time both counsel for the petitioner and for the respondent appeared and presented able arguments on the facts, and in addition thereto the court heard statements of counsel concerning the condition of the court fund of Rogers county and the likelihood of affording this petitioner an early trial. The county attorney stated that the court fund was practically exhausted, and that the .petitioner could not be afforded a jury trial prior to the beginning of the next fiscal year, July 1, 1922.

Considering tbe evidence before ns and the admitted fact that petitioner cannot be accorded a trial in Rogers county prior to July 1, 1922, also the further statements that the jail of said county is not constructed in a manner to seclude the female from the male prisoners in said jail, and that petitioner is a delicate woman, the conclusion is reached that under the circumstances she is entitled to be admitted to bail on the charge; and for reasons stated writ is allowed and bail fixed in the sum of $25,000, conditioned according to law for her appearance to answer said charge in the district, court of Rogers county, to be approved by the court clerk of Rogers county, and upon the execution of said appearance bond and notification thereof by the court clerk the sheriff shall discharge the petitioner, Martha Black, from his custody on said charge.


text:
    C. D. FULLER v. STATE.
    No. A-3871.
    Opinion Filed March 11, 1922.
    (204 Pac. 535.)
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    C. D. Fuller was convicted of manslaughter in the first degree, and appeals.
    Dismissed.
    T; L. Brown, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Cen., for the State.
   PER CURIAM.

Plaintiff in error, C. D. Fuller, was informed against for the murder of one James Morris, alleged to have been committed in Tulsa county on the 26th day of December, A. D. 1919, by shooting with a pistol. On Ms trial the jury found him guilty of manslaughter in the first degree and fixed bis punishment at four years in the penitentiary. From the judgment rendered on the verdict on April 27, 1920, an appeal was perfected by filing in this court on October 21, 1920, a petition in error with case-made.

His counsel of record has filed a motion to dismiss the appeal, stating that the governor of the state has granted a parole to said plaintiff in error.

The motion to dismiss is sustained, the appeal herein is dismissed and the case remanded to the trial court'.


text:
    ORA DANIELS v. STATE.
    No. A-3899.
    Opinion Filed March 14, 1922.
    (204 Pac. 936.)
    Appeal from County Court, Tulsa County; W. B. Williams, Judge.
    Ora Daniels was convicted of a violation of the prohibitory law, and she appeals.
    Affirmed.
    O. A. Morton, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsa county, wherein Ora Daniels, plaintiff in error, was convicted on a charge that she did have in herí possession intoxicating liquors, to wit, 40 gallons of Choctaw beer, and her punishment fixed at a fine of $100 and confinement for 60 days in the county jail. The judgment was rendered October 14,1920, and the appeal filed in this court January 20, 1920.

No brief has been filed in behalf of the plaintiff in error, and when the ease was called for final submission it was submitted on tbe motion of tbe Attorney General to affirm for failure to prosecute tbe appeal. An examination of tbe record discloses that tbe proof on tbe part of tbe state fully sustains tbe allegations of tbe information, and, finding no prejudicial error, tbe judgment of the lower court is affirmed.


text:
    B. GARLAND v. STATE.
    No. A-3910.
    Opinion Filed March 16, 1922.
    (204 Pac. 535.)
    Appeal from County Court, Tulsa County; W. B. Williams, Judge.
    B. Garland was convicted of a- violation of tbe prohibitory law, and appeals.
    Dismissed.
    Luther James, for plaintiff in error.
    R. E. Wood, Asst. Atty. Gen., for tbe State.
   PER CURIAM.

Plaintiff in error, B. Garland, was convicted in tbe county court of Tulsa county upon a charge that be did unlawfully manufacture intoxicating liquor, to wit: six gallons of whisky, and bis punishment fixed at a fine of $500, and imprisonment in tbe county jail for 180 days. From tbe judgment rendered on tbe verdict on tbe 14th day of October, 1920, be appealed by filing in this court on January 24, 1921, a petition in error with case-made.

On March; 11, 1922, his counsel of record filed motion to dismiss said appeal, which motion is sustained. The appeal herein is therefore dismissed and tbe cause remanded to tbe lower court.


author: MATSON, J.

text:
    E. E. CONKRIGHT v. STATE.
    No. A-3565.
    Opinion Filed March 18, 1922.
    (204 Pac. 1113.)
    (Syllabus.)
    1. Larceny — Grand Larceny — Sufficiency of Evidence. Evidence examined, and held sufficient in law to sustain a verdict and judgment of guilty of grand larceny as charged in the information.
    2. Indictment and Information — Joint Information Against Two— Allegation of Acting Together Unnecessary. When two persons, by the same information, are charged with the larceny of one piece of property, at one time, from one owner, further allegations that they were acting together in the commission of the crime, or statements of fact showing that they were acting together, are unnecessary.
    Appeal from District Court, Nowata County; W. J. Campbell, Judge.
    E. E. Conkright was convicted of grand larceny, and be appeals.
    Affirmed.
    F. B. Hanlon, Bert Van Lenven, George, Campbell & Ray, and Howard & Beets, for plaintiff in error.,
    Tbe Attorney General and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   MATSON, J.

On tbe 8tb day of March, 1919, plaintiff in error, E. E. Conkright, hereafter referred to as defendant, was convicted in tbe district court of Nowata county of tbe crime of grand larceny and sentenced to serve a term of five years’ imprisonment in tbe state penitentiary. Defendant was. charged with hairing stolen a Ford automobile from S. A. Taylor in the city of Nowata on tbe night of November 27 or tbe morning of November 28, 1918-

Three able and exhaustive briefs have been filed in this court in tbe behalf of tbe defendant, each urging that tbe evi-deuce is insufficient to sustain the conviction. The evidence against the defendant is wholly circumstantial, and it is contended in each of the briefs that as a matter of law the evidence is not sufficient to exclude every reasonable hypothesis but that of the guilt of the defendant.

It will be necessary in giving due consideration to this contention to unfold and discuss at considerable length the various circumstances as disclosed by the transcript of the evidence establishing the guilt of this defendant.

About 5 or 6 o’clock in the afternoon of November 27, 1918, S. A. Taylor, who resides on North Elm street in the city of Nowata, Okla., and who was the owner-of a Ford touring car with wheels painted white and with a partition under the rear seat thereof made by a two by four and a two by six pieces of wood, drove the said car into the garage out on the back part of the lot at his residence.

Between 6 and 7 o’clock on the morning of November 28, 1918, the said Taylor went to his garage to get his car and found the garage door open and the car gone. He immediately notified the sheriff of Nowata county, and together with the sheriff the car was tracked for several miles north of Nowata in the direction of Coffeyville, Kan. This was on the 28th day of November, 1918 (Thanksgiving Day). There had been a rain during the night, and owing to the peculiar tread on the tires of the car the same- was easily tracked. Because of a break-down' in the automobile which the parties were using to track the stolen car, the parties were compelled to and did return to the city of Nowata by street car and abandoned the search for the stolen car in the afternoon of November 28, 1918.

On the Saturday immediately following, S. A. Taylor was called to the town of Oswego, Kan., to look at a Ford car which bad been captured by the sheriff of Labatte county, Kan., and there identified the car so seized as his own. He took the car into his possession and returned with it to Nowata, Okla.

The following facts are admitted as true: (1) That S. A. Taylor was the owner of the car. (2) That said car was stolen from his garage in the city of Nowata, Nowata county, on the night of November 27 or early morning of the 28, 1918. (3) That said car was recovered by him from the sheriff of Labatte county, Kan., at the town of Oswego, Kan., on Saturday November 30, 1918. (4) That said ear was taken without the knowledge and consent of the said S. A. Taylor and without his connivance. (5) That said ear exceeded in value the sum of $20.

Succinctly stated, it is admitted that all the elements necessary to sustain larceny were present in the taking of this automobile from Taylor. The only contention urged is that the evidence is insufficient to connect the said defendant with such felonious taking.

While the jury is the exclusive judge of the weight of the evidence and of the credibility of the witnesses, and where there is credible evidence in the record which, if believed, is sufficient to authorize the jury to conclude that the defendant is guilty of .the offense charged this court will not. disturb the judgment, still, it is the duty of this court to set aside a judgment of conviction if as a matter of law the evidence is wholly insufficient to sustain the verdict and judgment.

The system of trial by jury is the greatest method ever devised or conceived by the mind of man for the discovery of the truth on controverted issues of fact and for safe-guarding the rights of parties litigant. The unanimous verdict of twelve peers of. the defendant who saw the witnesses face to face, observed their demeanor upon the witness stand, had full opportunity to investigate tbeir credit, concurred in by the judgment of the trial judge, must of necessity carry great weight with this court in giving consideration to questions of fact.

In this court the presumption does not obtain that the appellant is innocent of the crime. On the contrary, the presumption is that he is guilty where a conviction has resulted in the trial court. The presumption also is that such a conviction is based upon competent, sufficient, and credible evidence, and the burden rests upon the defendant in the appellate court to establish the contrary. . With these observations, let us revert again to the evidence, directing our attention to the defendant’s connection with the alleged crime.

Defendant admits that he was in the city of Nowata on the 27th of November, 1918, but he says that he left there on a street car which left Nowata at 8 o’clock on that afternoon, and went to the town of Coffeyville, Kan., and there stayed until 8 or 9 o’clock on the morning of the 28th of November, 1918, when he and two other parties left Coffeyville, Kan., and went several miles east of that city'on a hunting expedition.

Defendant is first connected with the stolen automobile on the 28th of November, 1918,, at! about noon. At that time the automobile was in a public highway headed north near the home of Bill Morris, a friend of the defendant, who lived some three or four miles east from the town of Edna, Kan. Defendant was seen and recognized by some persons who were hunting in that neighborhood that day. The road was extremely muddy, and no vehicle had passed along it since the day before. No other car was seen in thaf vicinity at that time except this stolen car. Besides the defendant, a young man, Glen Roy, was in the car. The defendant was not seen in the car, but when first seen was walking along the public highway from the direction where the car stood towards the 'bouse of Bill Morris. He was seen to walk up to the bouse of Bill Morris and knock on the door and shortly after return along the public highway toward where the automobile was .■standing. One of the persons who was- out hunting spoke to the defendant, and defendant told him that he had brought a bunch of fellows out from Coffeyville hunting and had gone to Bill Morris’ to get some gasoline for his car. The stolen -ear was the only car in sight at that time and was the only car ’that had come along that public highway that day. The parties to whom the defendant was then talking had heard the car .as it labored along the muddy road for an hour or more before they saw the defendant. That this was the stolen car is not •disputed, but it is contended that such facts do not show that -the defendant was in possession of said car for the reason that -no witness saw him in the actual physical possession of the car. We think such circumstances, together with what w'ill be hereafter detailed, show conclusively that the defendant was exercising dominion and control over that stolen automobile at that time and did so exercise it up until the time of his arrest ■on the day following.

At this time let us revert to the alleged hunting trip of ►.defendant, for it was by reason of such excursion that defendant says that he was found in the vicinity where the stolen car -was seen on the morning after its theft.

Defendant says that he and the two parties with him left *Coff eyvillje about 8 or 9 o ’clock on that Thursday morning and proceeded east from that city and hunted along the road as they drove in an automobile, that they got out in the country .-.about two miles south of where the stolen car was first seen .-.and there separated. Why they separated is not disclosed by the record. Why the defendant took a sudden notion to ¿abandon his hunting trip and go and see his friend Bill Morris, uninvited and unannounced, is also not disclosed. Why the defendant should abandon the automobile and walk over two miles through the slippery, muddy roads of that vicinity is not explained. In making the opening statement to fife Jury, counsel for the defendant announced that his purpose was to secure gasoline for the car in which these parties had been riding as it had gotten out of gasoline, and an inner tube also needed fixing, and defendant was going up to Billie Morris’, his friend, to get it fixed; and that on the way to Billie Morris’ defendant ran across this stolen car. But defendant in his testimony failed to give any explanation of why he left his friends, abandoned the hunting trip, and went on foot over two miles through' the muddy roads to Bill Morris’ house. Certainly, if his purpose was to get gasoline for a car that was then out of gasoline and also to get an inner tube fixed for that ear, he would have returned with the gasoline and the repaired inner tube; but defendant did not do either. Instead, he was found at Bill Morris’ on the afternoon of the next day, Friday, and the stolen ear was also found there hidden behind the barn with the license number off of it and with steel dust under the engine number on the car and a file close by. But defendant says that his connection with the car was purely 'that of an accommodation for the young man who was .stuck in the mud. It may be here remarked that, had the defendant displayed half as much concern about his friends whom he claimed to have taken in a car that day hunting, he surely would not have abandoned them without gasoline and with an inner tube that needed fixing. The jury evidently believed, as it had a right to believe, that the defendant’s story about his hunting expedition that day was a myth and that the defendant was one of the persons in possession of the stolen automobile. We think sueh are the rational deductions from such circumstances and conduct. While the defendant claimed to have been in the ■city of Coffeyville on the night of November 27th and 28th, all of that night, and produced soiñe witnesses who claimed to .have seen him there on that occasion, none of the persons whom defendant claims went with him on the hunting trip were present in court. The defendant introduced, however, ■the deposition of one of said parties which is as follows:

On the 27th day of November, 1918, he resided in Coffey-ville, Kan.; that he was acquainted with the defendant E. E. ‘Conkright; that they were together in Coffeyville, Kan., from ;5 o’clock in the evening on the 27th day of November, 1918, all night that night, and during the evening planned a hunting ■trip over east of Coffeyville, and the next morning about 9 «o’clock, the defendant E. E. Conkright, and Wallie Gaverick and the witness, Sam Blake, started on said trip going about three miles east of Edna, Kan., and a mile north of said place, ■reaching there shortly after noon hunting along the way; that witness and defendant Conkright were together practically all the time from 5 o’clock in the evening of November 27, 1918, to about noon of the 28th. That neither of the parties, to wit, «defendant Conkright or witness Blake, were in Nowata, Okla., ■either the night of November 27th, or up. to noon of the 28th; that defendant Cronkright was in Coffeyville from 5 o’clock in the afternoon of November 27, 1918, all night that night, and went on said hunting trip to the point named above with ;said parties the forenoon of the 28th, and was with witness all that forenoon.

It will be noted that this witness said nothing about the defendant separating from the others while on the hunting trip. And another peculiar circumstance in connection with -this witness’ deposition is the fact that he claims the defend.ant slept all night with him in the town of Coffeyville on the night the car was stolén, while the defendant testified that he 'had a wife and four children living in the town of Coffeyville ¡at that time. In considering the circumstantial evidence and ■the weight to be given it and the conclusiveness of it, the jury has a right also to consider the defense interposed. Had the defendant interposed no defense, but had left the state’s case as the only evidence against him, he would be in a much better position to contend that the evidence was insufficient to¡ convict. But where the defendant does interpose a defense, and that defense is apparently based upon falsehood, the jury then necessarily and! properly so resolve all inferences from the circumstances disclosed most strongly] against the' defendant. This is a natural consequence of a fabricated defense. We think without question that the defendant and his codefend-ant, Glen Roy, fabricated) this defense. Glen Roy testified for the defendant, waived immunity, and his evidence was substantially as follows: That he lived about seven miles east of Nowata and had lived there four years. That the first time he ever saw defendant Conkright was on Thanksgiving Day, 1918. That at that time witness was about seven miles south of Altamont, Kan. That he had driven a car through up there for a fellow — a Ford car. That the fellow turned the ear over to him between Nowata and Delaware. That when he met Conkright about seven miles south of Altamont, Conkright was walking along the road, and witness was stuck in a mud hole with the car and asked Conkright to help him. That there was a casing down on the car, and he couldn’t get any farther. That Conkright helped him out of the mud hole. That he saw a couple or three fellows along there about noon or 1 o’clock that day. That when he first got the car between Nowata and Delaware that he went from there to Delaware, from Delaware to Lenapah, and from Lenapah to South Cof-feyville. That Conkright was never in the car, and that he never told Conkright the car was a stolen car.

On cross-examination witness testified that he was arrested at Bill Morris’ house about 4 o’clock on Friday evening after Thanksgiving. That he had stayed at Bill Morris’ all night the night before. That Conkright stayed at Bill Morris’ on Thanksgiving night. That ilie car was delivered to him near California Creen between Nowata and Delaware. That he did not know who delivered it to him. That the fellow instructed him to take the car to Parsons, Kan., and to deliver it. But witness could not remember the name of the person to whom he was to deliver the car. That he did not give him any street address, but witness was to see if he could find the fellow. That he got out of the mud hole about 4 o’clock on Thanksgiving afternoon and then drove the car up to Bill Morris’ house and put it in behind the bam, and ate supper there and went to bed about 8 or 9 o’clock, and ate breakfast and dinner there the next day, and went to bed again after dinner about! o’clock, and was found in bed by the sheriff when arrested about 4 o’clock. That he and Conkright did not stay in the same room. Conkright was arrested downstairs and witness upstairs. That Conkright was not in bed’ when witness came downstairs. That he was to deliver the car at Parsons on Saturday, and at the time of his arrest was about 25 or 30 miles from Parsons. Witness was then asked the following questions:

Q. Didn’t you tell him, the county attorney, that you had come up to Coffeyville to get some money from Dave Btchens, to gd over to the Kansas oil fields and go to work, and didn’t find Dave Etchens at Coffeyville, and started to walk back to Nowata, and that Conkright overtook you driving this Ford car at the creek south of Coffeyville, and offered you a job, and you got in the car and went on with him; isn’t that what you told the county attorney in the presence of under sheriff Cansdale? A. Yes, sir.

Q. Which is the facts that you told, the conditions you told the undersheriff and county attorney, or the one you now say was where Conkright was never in the car? A. Why, Conkright never was in the car.

Q. Never was in the ear? A. Yes, sir.

Q. Yon are the only fellow that was in the ear at any time? A. Yes, sir; after—

Q. Conkright didn’t even ride with yon where he helped yon ont of the mnd np to Bill Morris’ house? A. No, sir.

Q. He walked? A. Yes, sir.

Q. Behind the ear or in front of it? A. Behind the car.

Q. He stayed with yon until yon got ont of the mnd hole, and then yon went on np to Bill Morris’ house. A. I stopped' just before I got to Bill Morris’ house.

Q. And he caught np with yon? A. Yes, sir.

Q. And then told yon how to get into Bill’s? A. He said he would get me some gasoline.

Q. Oh, yon had to have some more gasoline, did yon? A. Yes, sir.

Q. And yon drove the car yourself? A. Yes, sir.

Further, witness testified it was about a half-mile or a mile from the mnd hole np to Bill Morris’ house; that he did not know just exactly how far it was; that when he drove the car up to Bill’s that evening he intended to go to Parsons the next day, but afterwards decided he would wait until Saturday; that he put the car behind the barn because it was dry back there; that they were not in the habit of driving cars around behind the barn; that if he had left the car on the other side of the barn, it would have been in front of the house where Morris drove in and ont; that Conkright was not watching him when he put the car behind the barn; that he did not suppose Conkright knew that he was working on the engine numbers of the car; that the stranger from whom he got the car told him it would be necessary to work on the numbers; that the stranger, did not tell him to stop and get Bill Morris and Conkright to help him; that he never knew Bill Morris before that time; that he never told Conkright where he was going to take the car; that Conkright asked him, bnt he told Conkright he was “going np the line a ways”; that the file he nsed on the numbers was found in the ear; that he did the filing there at Morris’ behind the barn; that he thinks that Conk-right was in the house at the time. Thinks Conkright was carrying a Winchester gun when he met him; that he took a casing off the car and put another one on there at Bill Morris’; that) the casing he took off was rim cut. Witness denied that he told the county attorney and C'ansdale and Charley Heady that the first time he met Conkright was in Sam Cobbs’ rooming house at Nowata the evening before Thanksgiving.

In rebuttal the state offered the witness J. A. Cansdale, who testified that Glen Roy, in a conversation with him,, stated that the first time he had met Conkright was at Sam Cobbs’ place in Nowata. Also several witnesses were introduced from the vicinity of Centralia, Okla., who testified the defendant Conkright had lived there for about twelve or thirteen years up until about two years prior to that time, and that his general reputation for truth and veracity in the neighborhood of Centralia was bad. Conkright also admitted that he had served a term in the penitentiary on a plea of guilty to a felony.

It appears that the codefendant Glen Roy was impeached by his admissions made out of court contrary to his testimony in court. The story he first told about his connection with the ear was that the defendant Conkright overtook him between the city of Nowata and Delaware, Okla., and that Conkright was at that time driving the stolen car. On the witness stand Roy changed this statement and testified that a total stranger to him overtook him between the city of Nowata and Delaware, Okla., driving this stolen ear, and without further ceremony turned tbe car oyer to him: to deliver to some unknown person in the city of Parsons, Kan. The latter story is so unreasonable and so contrary to human nature as to be absolutely unbelievable. Certainly no sane and intelligent jury would be bound to believe as true a story so incredible as that detailed by Roy. Roy afterwards pleaded guilty to the larceny, yet under his statement he had nothing to do with the original taking. Conkright admits that he was in Nowata on the day of November 27th, that he was at Sam Cobb’s rooming house, that he may have seen his codefendariE Roy there on that occasion, and probably did talk to Roy “in a general way.”

Summarizing the circumstances and admissions by these defendants, we have the following state of facts: Conkright and Roy were together in the city of Nowata on the afternoon of the day that the car was stolen. On the next day after the ear was stolen, Conkright and Roy are together on a public highway not far from the town of Edna, Kan., and the stolen ear is there. Together they took this car to the home of Bill Morris near where it was first seen after its larceny. They stay together at the home of Bill Morris for 24 hours and were both there at the time of their arrest. From the time the stolen ear is first seen after the larceny until its recovery by the sheriff neither Conkright nor Roy abandon it; where the car goes there also go Conkright and Roy. Some time between the commission of the larceny and the arrest of these parties somebody had attempted to file the engine numbers off of this car. As heretofore stated, the explanation Roy makes concerning the manner in which he came into the possession of this car is absolutely incredible and unbelievable. We think that the same may be said of the explanation that Conkright makes concerning his presence at the car and at Bill Morris’. From all these circumstances, contradictory statements, admissions, and impeachments, we think it clear that the jury was authorized to infer and to conclude that these defendants stole the car in question on the night of November 27, 1918, from the garage of S. A. Taylor in the city of Nowata and together drove it to the place where they were found on the morning of the next day. Their possession was very recent after the car was stolen, and their explanations of that possession are not consistent with their innocence but lead clearly to the inference that each was guilty of the larceny. We think this evidence, with the proper inferences and deductions, is such as to exclude every reasonable hypothesis except that of the guilt of this defendant, and for that reason we decline to disturb the verdict and judgment on the ground of the insufficiency of the evidence.

One of the briefs contains an additional ground for a reversal of the judgment, to wit, that the court erred in overruling the demurrer to the information. The information charges in substance that—

On or about the 28th day of November, 1918, “E. E. Conk-right and Glen Roy, then and there being did then and there feloniously ánd by stealth take, steal and carry away from the premises of S. A. Taylor in the city of Nowata, Nowata county, Okla., the personal property, to wit, one Ford touring car of the value of $400.00, then and there the personal property of S. A. Taylor and in the possession of the said S. A. Taylor. The said taking, stealing and carrying away of said property being then and there without the knowledge or consent of the said S. A. Taylor and against his will and consent and with the intent then and there existing in the minds of the said E. E. Conkright and Glen Roy to deprive the said S. A. Taylor thereof and to convert the same to their own use. ’ ’

It is contended that because the information does not charge that the defendants Conkright and Roy were acting togéther in the said larceny, it is necessary that the information go further and state the facts showing that the parties acted together in the commission of the offense. We think sneh allegations of fact unnecessary. The information jointly charges these defendants with the larceny of one piece of property, at one time, from one owner, and under such circumstances an allegation that they were acting together, or statements of fact showing that they were acting together, would be unnecessary and surplusage. The¡ acts constituting the offense are stated in ordinary and' concise language and in such a manner as to enable a person of common understanding to know that the pleader intended to charge both Conkright and Roy with.the joint commission of but one larceny. The information was sufficient to apprise the defendant Conkright of the nature of the offense charged and the particular circumstances of its commission, and was sufficient to authorize the court to pronounce judgment on a conviction according to the right of the case.

For reasons stated, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


author: DOYLE, P. J.

text:
    ALVIN ODUM v. STATE.
    No. A-3836.
    Opinion Filed March 22, 1922.
    (204 Pac 1118.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. In a homicide case the evidence considered, and held sufficient to sustain the verdict and judgment of conviction for manslaughter in the first degree.
    Appeal from District Court, McCurtain County; G. M. Barrett, Judge.
    Alvin Odum was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Jeff D. McLendon, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Alvin Odum, was informed against for the murder of A. 0. Whala, and upon trial was convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of seven years. He has appealed from the judgment rendere'd upon such conviction, but there has been no appearance on his behalf in this court. When the case was called on the assignment, it was submitted on the record.

The appellant shot and killed A. 0. Whala in the town of Bokhoma about 6 o ’clock in the evening- of the 22d day of November, 1919. The evidence for the state shows that the decedent conducted a barber shop in Bokhoma. The defendant went to the barber shop about an hour before the shooting, and a difficulty arose over the payment for pressing a pair of pants, epithets were exchanged, and the defendant invited the' decedent to come out of the shop. The decedent went out and grabbed the defendant and made him retract what he had said. The defendant- then went to the place where he was boarding ,-and secured a Winchester rifle, loaded it as he returned, and passed through a lumber yard and stood behind the lumber company’s office. In a short time the decedent and his wife passed along the street, and after passing the lumber office the defendant fired two shots at the decedent, each taking effect. The decedent ran behind a church near, by and then to the back porch of a house near by and took from there a Winchester rifle and returned to the scene of the shooting, at which time the defendant fired another shot, striking the decedent, from the effect of which wound he died three or four hours later.

Six or seven witnesses testified to' these facts on the part of the state.

The defendant, as a witness in his own behalf, testified:

“The trouble started there in the barber shop. I told him I wouldn’t pay for the pressing of my trousers; that they lacked a hell of a lot of being pressed. He cussed me and told me to get out. I walked out. He called me God damn son of a bitch. I walked off the end of the porch, and I said, ‘You are another one. ’ I did not invite him out of the barber shop. He followed me out. He caught me by the collar and drew his razor on me. He said, ‘God damn you; take it back or I will cut your head off.’ I took it back, and he let loose of my collar. He said, ‘Go get your gun; I have got a good one in the shop,’ and he turned and walked back into the shop. I walked straight to the house, laid the trousers down, and picked up a rifle. I turned and walked back, and didn’t stop until I ran behind Wilson Lumber Company’s office. I was watching him. He came right up the walk with his wife. When he got up even with me I shot in the air, just to make him kinda go on and to scare him. I fired two shots. He ran around back of the church, and I turned and walked out to an old boiler that was laying there near the depot platform. Whala was southeast of the depot and was looking for me, and I shot him from the depot. He fell. Whala fired first.”

The errors assigned are:

“First, that said verdict was and is contrary to the law and the evidence; second, because the court erred in neglecting to instruct the jury on the law of ‘cooling time.’ ”

Viewing appellant’s testimony from the standpoint most favorable to him, it leaves no doubt of the fact that he armed himself with a Winchester repeating rifle for the purpose of engaging in mutual mortal combat with the decedent, which made the homicide at least manslaughter in the first degree, and the testimony on the part of the state is ample to have sustained a verdict against the defendant for murder.

The court in its instructions covered every phase of the law of the case, and no objection was made or exception taken to the instructions given, which, it appears, were more favorable to the defendant than he had any right to expect.

Finding that no material error was committed in the trial of this case, the judgment is affirmed.

MATSON and BESSEY, JJ., concur.