source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    MRS. W. L. PENDLEY v. STATE.
    No. A-10286.
    Sept. 1, 1943.
    (141 P. 2d 118.)

      Stephenson & Stephenson, of Okemah, and Hayden C. Covington, of Brooklyn, N. Y,, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Mrs. W. L. Pendley, was charged in the court of Common pleas of Tulsa county with unlawfully hindering and forbidding the carrying out of the ceremonial for saluting the American flag, formulated according to law by the State Superintendent of Public Instruction, was tried, convicted, the "punishment left to the court, who thereupon sentenced the defendant to serve 60 days in the county jail, from which judgment and sentence an appeal has been taken to this court.

70 O.S. 1941' §§ 1091 and 1092 provide:

“The pupils of every public, private, parochial and denominational school in the State of Oklahoma, shall by appropriate ceremonial, to be formulated by the State Superintendent of Public Instruction, be taught the proper reverence and respect for the American Flag.”
“Any teacher neglecting to display said flag or carry out said ceremonial and any person forbidding or hindering the display of said flag or the carrying out of said ceremonial .shall be subject to discharge or removal and shall also be punished by a fine of not less than one hundred dollars or more than five hundred dollars, or by imprisonment in the county jail for not less than sixty days and not more than six months or both.”

The proof of the state showed that the State Superintendent of Public Instruction, pursuant to the authority vested in him under 70 O. :S. 1941 § 1091, supra., had prescribed a proper salute for the American flag as a ceremonial to be used in all of the public schools in Oklahoma. In describing this ceremonial and the salute by the school children, the-citv superintendent of schools at Tulsia testified:

“The flag, is generally brought in by a member of the Boy Scouts and the Girl Scouts, and the leader holds his hand over his heart, and the children repeat the pledge which says: I pledge allegiance to the flag of the United States of America, and to the Bepublic for which it -stands, one Nation indivisible, with liberty and justice for -all.”

The proof further showed that a seven-year-old child of the defendant, who was in the public school of Tulsa, refused to participate in the salute to the flag, giving as her objection that she was one of Jehovah’s Witnesses and that because of her religious belief she could not participate in the flag salute because of the scriptural admonition forbidding her to bow down to-any graven image.

In lieu of the ceremonial prescribed by the State Superintendent, the defendant appeared before the board! of education of the city of Tulsa and asked that her child, and others of her faith, be permitted to make the following' pledge:

“I pledge my unqualified allegiance to Almighty God, I respect the flag of the United States and acknowledge it as a symbol of freedom and justice to all. I pledge allegiance to the laws of the State of Oklahoma that are consistent with God’s law.”

Because of the refusal of the seven-year-old daughter of defendant to salute the flag, in accordance with the ceremonial prescribed by the State Superintendent, she was expelled from school and these charges filed against defendant.

Proof on behalf of defendant showed that she was an ordained minister of Jehovah’s Witnesses; that she had tried to teach her' child the word of the Bible. The witness quoted from the Book of Exodus, wherein it is stated, according to- her testimony:

“Thou shalt have no other gods before me.
“Thou shalt not make untoi thee a graven image, nor any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself unto them, nor serve them; for I, Jehovah thy God am a jealous God, visiting the iniquity of the fathers upon the children upon the third and upon the fourth generation of them that hate me, and showing loving kindness unto thousands of them that love me and keep my commandments.”

It is the contention of the defendant that the statute in question is being construed and applied in this case so as to deprive her of her constitutional rights of freedom of speech and freedom of religious worship.

The specific question here presented was decided by the Supreme Court of the United States on June 14, 194B, in the case of West Virginia State Board of Education et al. v. Barnette, 63 S. Ct. 1178, 87 L. Ed. —. Tbe law of that opinion is set forth in the first two syllabi, as follows:

“1. The action of a State Board of Education in requiring public school pupils to salute the flag of thel United States while reciting a pledge of allegiance, under penalty of expulsion entailing a liability of both pupil and parents to be proceeded against for unlawful absence, transcends constitutional limitations and invades the sphere of intellect and spirit of which it is the purpose of the First and Fourteenth Amendments of the Constitution to reserve from all official control.
“2. Freedoms of speech and of press, and of assembly, and of worship, are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”

The same flag ceremonial was prescribed in West Virginia, pursuant to a statute similar to the Oklahoma statute. We quote from some of the language used by Mr. Justice Jackson in disposing of that case:

“The freedom asserted by these respondents does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the state to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The state asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters-that touch individual opinion and personal attitude.
“* * * Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute ‘and slogan. * * *
“There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties', lodges and ecclesiastical groups seek to knit the loyalty of their followings to' a flag or banner, a color or design. The state announces rank, function, and authority through crowns: and maces, uniforms and black robes; the church) speaks through the Cross, the Crucifix, the altar and! shrine, and clerical raiment. Symbols of state often convey political ideas just as religious symbols: come to convey theological ones. . Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn. . . .
“It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even: more immediate and urgent grounds .than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to muffle expression. Toi sustain the compulsory flag salute we are required to say that a Bill of Eights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter wha,t is not in his mind. . . .
“National unity as an end which officials! may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means, for its achievement.
“Struggles to coerce uniformity of sentiment in support' of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As. first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increásing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necesary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. . . .
“The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.”

This decision of the Supreme Court of the United States, being expressly in point, controls in the disposition of the instant case. Regardless of any personal views this court may entertain concerning the reasonableness or unreasonableness of the defendant’s views, we shall adhere to the ruling of the highest court of the land. It is sound in principle and consonant with constitutional provisions.

We are advised that since the rendition of this opinion the .State Superintendent of Public Instruction has entered an order rescinding that part of his former regulation subjecting a child to expulsion from school for failure to participate in the flag ceremonial.

For the reasons hereinabove given, the judgment of the court of common pleas of Tulsa county is reversed and remanded with instructions to dismiss.

BAREFOOT, J., concurs. DOYLE, J., absent.


text:
    A. G. ZIMMERMAN et al. v. STATE.
    No. A-10299.
    Sept. 1, 1943.
    (141 P. 2d 123.)

      Stephenson & Stephenson, of Okemah, and Hayden C. Covington, of Brooklyn, N. Y., for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

A. G. Zimmerman and J. W. Mc-Curley, members of the school hoard of school district No. 36 in Woods county, and both being Jehovah’s Witnesses, were charged by information filed in the county court of Woods county with unlawfully hindering and refusing to assist the teacher of said school district in the enforcement of an appropriate flag ceremonial in said public school, by reinstating certain pupils after they were suspended from said public school by the teacher for persistent violation of the school regulation in respect to the flag ceremonial as formulated by the State Superintendent of Public Instruction in Bulletin Not 146. The defendants were tried, convicted and sentenced to- pay a fine of $150 each.

Certain pupils of the school district of which the defendants were respectively the director and clerk of the school board were suspended from school for refusing to participate in the flag salute ceremony. The children refused to salute the flag because it conflicted with their religious beliefs. A controversy arose and the teacher, according to Ms testimony, submitted the matter to the school board “to decide whether I was right in suspending the children, or whether the children were right.” The two defendants, constituting a majority of the school board, decided to reinstate the pupils in school who had been expelled for refusing to salute the flag and instructed the teacher' to proceed with the flag ceremonial for those who wished to participate, but to excuse those children from participating who did not wish to do so- because it conflicted with their religious beliefs:.

Although this conviction arises in a different manner from the convictions discussed by this court in the cases of Pendley v. State, 77 Okla Cr. 259, 141 P. 2d 118, and Carter-Mort v. State, 77 Okla. Cr. 269, 141 P. 2d 122, they are all dependent upon a construction of the statute empowering the State Superintendent to prescribe a proper ceremonial for teaching respect to the American flag. If, as has been held by us in two decisions above referred to, pupils with conscientious religious- beliefs could not be lawfully expelled from school because of their failure to-participate in the flag ceremonial, then the actions of the two defendants in reinstating those pupils were proper and a conviction of them should be set aside.

The views of this court expressed in Pendley v. State, supra, therefore control in the disposition of this case.

It is therefore ordered that the judgment of the county court of Woods county be reversed and remanded with instructions to dismiss.

BAREFOOT, J., concurs. DOYLE, J., absent.


text:
    BEULAH CARTER-MORT v. STATE.
    No. A-10293.
    Sept. 1, 1943.
    (141 P. 2d 122.)
    C. E. Wilhite, of Alva., and Hayden C. Covington, of Brooklyn, N.Y., for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Beulah Carter-Mort, was convicted in the county court of Woods county of refusing to observe the appropriate flag ceremonial in school, was tried, convicted and sentenced to pay a fine of $250 and costs.

The defendant was a member of Jehovah’s Witnesses and conducted a private school at her residence for 10 or 12 children who were members of that religious sect. The defendant, as teacher of that school had refused to conduct the flag ceremonial prescribed by the State Superintendent, giving as her reasons religions grounds such as were quoted by the defendant in the case of Pendley v. State, 77 Okla. Cr. 259, 141 P. 2d 118, this date decided.

It is not necessary to discuss this case at length. The same constitutional principles and reasoning govern in the disposition of this case as were cited in the disposition of the case of Pendley v. State, supra.

It is therefore ordered that the judgment of the county court of Woods county be reversed and remanded with! instructions to dismiss the case against defendant.

BAREFOOT, J., concurs. DOYLE, J., absent.


text:
    BENNY PARTAIN v. STATE.
    No. A-10303.
    Sept. 1, 1943.
    (141 P. 2d 124.)

      C. E. Castle, of Wagoner, and Hayden C. Covington, of Brooklyn, N. Y., for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Benny Partain, was charged in the. county court of Delaware county with the crime of contributing to the delinquency of a minor, was! tried, convicted and sentenced to pay a fine of $250 and has appealed.

The defendant and his daughter, Imogene Partain, age 12, are Jehovah’s Witnesses. The daughter refused to participate in the flag ceremonial at her school for the reason that to do so would be to bow down to a graven image, which was contrary to her religious instruction and belief. The father was charged in the instant case with contributing to the delinquency of a minor child in that he did aid and abet and encourage the said child to not participate in the flag ceremonial.

There are many interesting questions raised in this case, particularly with reference to whether or not the statutes on contributing to the delinquency of a minor child, 21 O. S. 1941 §§ 856 and 857, under which defendant is charged, are susceptible to the construction sought to be placed on them by the state. It is not necessary that we discuss the merits of this contention as the state’s case rests entirely upon the assumption that the statute authorizing" the State Superintendent of Public Instruction to prescribe an appropriate flag ceremonial for observance in the public schools of the state may be enforced by compelling all pupils to participate, irrespective of their religious beliefs.

This court, in the cases of Pendley v. State, 77 Okla. Cr. 259, 141 P. 2d 118; Carter-Mort v. State, 77 Okla. Cr. 269, 141 P. 2d 122; and Zimmerman v. State, 77 Okla. Cr. 266, 141 P. 2d 123, followed the opinion of the Supreme Court of the United States in the case of West Virginia State Board of Education et al. v. Barnette, 63 S. Ct. 1178, 87 L. Ed. —, and held that the statute, 70 O.S. 1941 § 1091, when applied in such a manner as to expel a pupil from school for refusing to participate in the flag ceremonial because of conscientious religious beliefs, is unconstitutional in its application. For this reason the basis of the state’s case herein fall®.

It is not necessary to again recite the reasoning in support of this conclusion. It is fully stated in the cases hereinabove cited.

The judgment of the county court of Delaware county is therefore reversed and remanded with instructions to dismiss.

BAREFOOT, J., concurs. DOYLE, J., absent.


author: BAREFOOT, J.

text:
    JACK COUCH v. STATE.
    No. A-10187.
    Sept. 1, 1943.
    (141 P. 2d 125.)

      Tillman & Tillman, of Pawhuska, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Jack Couch, Avas charged in the district court of Washington county with the crime of larceny of livestock, to Avit, one spotted red two year-old heifer, the property of one Lee Sturm; was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed.

The only contention for reversal of this case is that the judgment and sentence is contrary to the law and evidence. This is based upon the contention that the evidence of an accomplice is not corroborated. A short statement of the evidence is necessary.

Lee Sturm, a farmer who resided in Washington .county, had a spotted. tAvo-year-old heifer stolen from his premises on the night of October 10, 1940. He and the sheriff of Washington county found tracks of a truck, and also of two persons, one wearing boots and the other shoes, at a place where the fence had been taken down, and the animal loaded in the truck. Upon investigation they found that the heifer had been sold by the defendant at the stockyards in Tulsa the following morning, October 11th, through the Blackwell Commission Company, to D. B. Jones, a butcher at Sapulpa. At his place of business they found the hide of the animal, which Mr. Sturm identified by his brands thereon.

Melvin Tyner testified for the state. He had theretofore pleaded guilty of the theft of the identical heifer defendant ivas charged with stealing, and had been sentenced to serve a term of six years in the penitentiary. He was sentenced on November 29, 1940, and had not been sent to the penitentiary, but had been kept in jail in Washington county, evidently to be used as a -witness by the state against this defendant. The evidence revealed that he had been given many liberties as a trusty while in jail, and prior to the trial of defendant. He testified that he and the defendant Jack Couch and his brother Chet Couch had at different times worked for the Blackwell Commission Company a,t the stockyards in Tulsa. That he had knqwn them for several years, and that the three of them had entered into a conspiracy for the purpose of stealing cattle, selling them on the market, and dividing the money three ways. That in pursuance of said conspiracy, he and the defendant, using a truck belonging to the brother Chet Couch, went to the farm of Lee Sturm on the night in question, stole the heifer, then proceeded to the home of Jack Cranor where they stole two- calves, took them to the stockyards in Tuls-a, unloaded them, and went to the Rogers Hotel, where they spent the remainder o-f the night. That the next morning the cattle were sold in the name of Jack Couch through the Blackwell Commission Company, for the sum of $51.16, and that he was given half o-f the money by the defendant, who retained the other half. At that time the witness was working for the Blackwell Commission Company, and after he got off wo-rk on the day the cattle were sold, he and the defendant went to the home of defendant’s father in Nowata, defendant secured some clothes and they then went to- McAlester, where they attended a rodeo, and defendant visited at the penitentiary. The witness then returned to Oklahoma City.

The bookkeeper of the Blackwell Commission Company testified to drawing the check in payment for the three head of cattle and giving the same to the defendant, with whom she was personally acquainted, and the check was introduced.

The register of the Bogers Hotel was produced to corroborate the testimony of the witness Tyner.

The defendant admitted the sale of the heifer and of the two calves that were sold at the same time, and admitted receiving the check from the Commission Company and cashing the same at the Sand Springs bank. His defense was that he had purchased the three head of cattle in the town of Collinsville on the night of October 10, 1940, from the witness Melvin Tyner, who had them there in a truck, and that he paid him $45 in cash for the three head. He testified that after purchasing the cattle he went with Tyner from Collinsville to Tulsa in the truck, unloaded the cattle at the stockyards, went to the Bogers Hotel and the next morning sold the cattle in his own name. He testified to going to McAlester with Tyner, and that after leaving McAlester he went into Arkansas, then to Texas, New Mexico and to Arizona, where he was arrested in December, 1940, and returned to this state to answer the charge filed against him. There was evidence with reference to the defendant not telling of his intention to go to Arizona, and other evidence tending to' corroborate the witness Tyner, which it is unnecessary to' set out in detail.

Defendant, in corroboration of his testimony, offered two witnesses, Tom Bradshaw and Tom Bradshaw, Jr., both of whom testified to- being with the defendant at a carnival in the town of Collinsville on the nig'ht of October 10, 1940, the night the cattle were stolen, and that they saw the witness Tyner drive up in the street in a truck with cattle therein. They testified to seeing the defendant and Tyner talking together, and Tom Bradshaw, Jr., testified that he saw defendant buy the cattle from the witness Tyner, and saw him,pay him in cash the sum of $45, and saw the defendant count the money out to him.

The witness Tyner denied being in the town of Collins-ville, and that he sold any cattle to the defendant, or that he paid him any money, as was testified to’ by the junior Bradshaw. He testified that he and the defendant went straight to- the Blackwell Commission Company at the stockyards in Tulsa, after they had stolen the calves.

A number of prominent citizens of Washington and Nowata counties, some of them public officers, testified to the good character of the defendant.

From the above, which we think is a, fair statement of the evidence, it will be readily observed that there is a direct conflict therein. We have so- often held that in cases of this character, where there is a conflict in the evidence, and the jury has- seen and heard the witnesses with an opportunity to judge their appearance and demeanor upon the witness stand, the verdict will not be set aside on appeal. Townsend v. State, 36 Okla. Cr. 155, 253 P. 108; Jackson v. State, 72 Okla. Cr. 226, 114 P. 2d 953; Petree v. State, 72 Okla. Cr. 323, 115 P. 2d 921; Darnell v. State, 74 Okla. Cr. 33, 118 P. 2d 1040, 122 P. 2d 395; Herren v. State, 74 Okla. Cr. 424, 127 P. 2d 215.

It is only Avhen the evidence is insufficient to sustain the judgment and sentence that the same will be set aside. Palmer v. State, 36 Okla. Cr. 169, 252 P. 1114; Wheeler v. State, 67 Okla. Cr. 291, 94 P. 2d 9.

Of course, if the evidence was such that it did not properly corroborate the witness Tyner, as a matter of law, then it would be our duty to reverse the case. But from the above statement of the evidence, it is clearly seen that his evidence was corroborated in many instances, and also by the evidence of the defendant himself. The only conflict was with reference to the purchasing of the cattle by the defendant from the witness Tyner, and his being on the streets of Collinsville with the cattle on the truck the night they were stolen. This evidence was properly presented to the jury under proper instructions, to which no exception was taken, and the jury found the issues in favor of the state, and against the defendant.

A case recently decided by this court, which has many similar facts to the instant case, was that of Mills v. State, 73 Okla. Cr. 98, 118 P. 2d 259. The first three paragraphs of the syllabus in that case read:

“Whether there is sufficient evidence corroborating testimony of an accomplice to justify submission of the case to the jury is a question of law for the trial court; but the weight to be given to such corroborating testimony is a question solely for the determination of the jury.
“The verdict of a jury upon disputed questions of fact will not be disturbed on appeal where there is any competent evidence in the record reasonably tending to support the same.
“In a case of larceny of domestic animals, independent evidence showing that defendant had transported the stolen animals and sold them is sufficient corroborating evidence of accomplices’ testimony to require submission of the case to the jury.”

And in Darnell v. State, supra [74 Okla. Cr. 33, 118 P. 2d 1041], it is said:

“An accomplice may be corroborated by the evidence of the defendant, as well as by others.”

Defendant complains of the evidence of the witness Tyner by reason of the fact that he was sentenced to the penitentiary on a plea of guilty on N ovember 29, 1940, and on the 3rd day of June, 1941, the date of the trial of this defendant, he was still in the Washington county jail, and had not been sent to the penitentiary, and that he had been given liberties by the sheriff, and permitted to attend public dances and functions with women, and witness Tyner admitted on the witness stand that this was true. We quote from his testimony:

“Q. Haven’t you been down to Ochelata to a beer joint — (interrupted) A. No, sir. Q. —you and this married woman you have been running around with? I don’t know her name so I will identify her that way. It’s the same girl you went to Oklahoma City with. I may put it this way: In a drugstore in Ochelata? A. Yes, sir. Q. Where they sell beer? A. Yes, sir. Q. You have been there, haven’t you? A. Yes, sir. Q. You have been with this girl, haven’t you? A. Yes, sir. Q. And you didn’t have an officer with you? A. No, sir. Q. How long did you stay out of jail on that trip. A. Saturday and Sunday. Q. Drank beer, didn’t you? A. No. Q. You have been down to a Bob' Wills’ dance in Tulsa, haven’t you? A. No., sir. Q. Since you have been sentenced to the State Penitentiary, I mean ? A. Yes, sir. Q. You have been, 'haven’t you? A. Yes, sir. Q. With this same girl, haven’t you? A. Yes, sir. Q. You have been up and down the streets of the Bartlesville with your mother and this girl frequently since you were sentenced to the penitentiary, haven’t you? A. Yes, sir. Q. In other words., you don’t expect ever to go. to the penitentiary for giving this testimony, do you? A. Yes, sir. Q. You do? A. Yes, sir. Q. Will you tell the jury, please, how many times the former sheriff of this; county, Mr. Eagle, let you go out and run around with this married woman over the country, in Tulsa and out to Bob Wills’ dances since you were sentenced to the penitentiary? Tell about how many times you have run free and large since you promised to testify against this boy? A. None. Q. I beg your pardon? A. None. Q. You haven’t been out at all? A. Not while Jim Eagle was in, no. Q. Have you been out since Ford was in? A. Yes, sir. * * * Q. You have been a virtual trusty since you were sentenced, haven’t you, Mr. Tyner? A. Yes, sir. Q. You go where you want, when you want, and with whom you want. That’s true, isn’t it? A. Yes, sir.”

The record does not reveal, nor do we know the reason for this, and it certainly cannot be condoned. When a defendant is sentenced to the penitentiary, the officers should-see that he is transported there within a reasonable time for the serving of his sentence. Section 3152, O.S. 1931, •22 O.S. 1941 § 980. If he is to be used as a witness in other criminal trials, he can be brought back from the penitentiary to testify. To permit a prisoner to- be held in jail for the length of time above indicated, is to place in the hands of the sheriff the pardon and parole power which is granted exclusively by the Constitution to the Governor of this state. However, these facts were presented' to the jury in this case. They went to the credibility of the witness, of which the jury is the judge. If the jury had determined that the witness was testifying falsely by reason of the favors shown him, they would have so- said by their verdict and rendered a verdict of not guilty. This was a question exclusively for the jury to decide. By this decision we are undertaking to say that this court approves the entertaining- of prisoners who have been sentenced to the penitentiary by permitting them to attend public dances with women companions, pending their transportation to- the penitentiary. If this witness- had been promised any immunity by reason of liis appearance as a witness for the state, this fact should have been presented to the jury for the purpose of affecting hisi credibility as a witness.

Finding no error, and that the defendant had a fair and impartial trial, the judgment and sentence of the district court of Washington county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    KALLIE MAY HALLEY v. HILBERT, Chief of Police, et al.
    No. A-10436.
    Sept. 1, 1943.
    (141P. 2d 303.)

    Sid White, of Oklahoma City, for petitioner.
    Granville Scanland, Asst. Municipal Counselor, of Oklahoma City, for respondent.
   BAREFOOT, J.

Petitioner Kallie May Halley filed in this court a petition for writ of habeas corpus, on the 28t.h day of August 1943, alleging that she was unlawfully restrained of her liberty by L. J. Hilbert, chief of police of the city of Oklahoma City, Olcla., Walter Acord, captain of the vice bureau, and Lula Caldwell, matron of the clinic, all of Oklahoma City, Okla. A writ to show cause was issued by this court, and a hearing thereon was set for the 1st day of September, 1943, at 10 a.m. before this, court.

On tlie 31st day of August, 1943, a response to the petition for writ of habeas corpus was: filed by the respondents, as follows:

“Comes now the respondents, L. F. Hilbert, Walter Acord and Lula Caldwell, and for tbeir response to the application for writ of habeas corpus, herein confess the issuance of said writ of habeas corpus.”

The writ of habeas corpus is: therefore granted, and the respondents are ordered to discharge the petitioner, and the bail bond ordered in this case is exonerated, and the sureties released.


text:
    ROY McAMIS v. STATE.
    No. A-10179.
    Sept. 8, 1943.
    (141 P. 2d 301.)
    H. C. Ivester, of Sayre, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst.-A tty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal from a conviction in the county court of Beckham county, Okla., wherein the defendant, Roy Me Amis, was sentenced to serve 30 days in the county jail and pay a fine of $50 for unlawful possession of intoxicating liquor.

Only one issue is presented. It is contended that the court erred in overruling the motion to suppress the evidence filed by the defendant for the reason that the description in the search warrant is insufficient because it does not state in what county or state the property to be searched is located, and further, in describing the township and range, the word “North” was omitted and does not appear in the description.

That part of the search warrant at which complaint is directed reads:

“Proof by affidavit having been made this day before me by Earl Francis showing that there is probable cause to believe that on the 7 day of May, 1941, in Beckham County, State of Oklahoma, at Sayre, in the County of Beckham in a certain building, described as follows:
“Beginning at a point on the West Bine of U. S. Highway #68 75 feet north and east of the point where the west line of U. S. Highway #68 intersects the south line of the North East % of Section 8, twp 9, Range 23 W. I. M. Thence west 220 feet, thence north 330 feet, thence east to the west line of the right of way of said U. S. #66 Highway, then following said line to point of beginning * *

In the heartng- on the motion to suppress only one witness was introduced and she was placed upon the witness stand by the state. In connection with the question as to whether or not the failure to insert the word. “North”, in referring to the township, rendered the search warrant fatally defective, this witness, who was an abstracter in the city of Sayre, testified:

“Q. With reference to section 8, township 9, range 23, would that be in Beckham county, Oklahoma? A. Yes, sir that would be in Beckham county. Q. Could there be section 8, township 9, range 23 W. I. M. south? A. No. Q. For what reason? A. Because it only runs, I think, to about 3,1 could look and see. Q. I hand you this map of the State of Oklahoma.. A. There would be one and part of two south. Q. Therefore, there could only be one section 8, township 9, range 23 W. I. M. A. Yes, sir, there! would just be one.”

This court, in Seick v. State, 57 Okla. Cr. 364, 48 P. 2d 355, reversed a conviction for omission of the designation of the range in the description. The reversal, however, was based upon the fact that in Cleveland county, where the case arose, the legal description would have fitted either east or west range. A similar situation does not exist in this case. According to the testimony of the abstracter, there could not be a section 8, township 9 south, range 23 W. I. M.

it is further insisted that there is a material variance from the description named in the search warrant from that set forth in the affidavit, and that the statement in the search warrant, as follows: “Proof by affidavit having been made this day before me by Earl Francis showing that there is probable cause to believe that on the 7 day of May, 1941, in Beckham County, State of Oklahoma, at 'Sayre, in the County of Beckham in a certain building, described as follows: * '* *” is ’an insertion by the justice of the peace and not based upon any factsl before him set forth in the affidavit for a search warrant.

The particular description of the premises, including! the name of the defendant, as set forth in the search warrant, is identical to that in the complaint, including the description of the premises by metes and bounds and by section, township and range.

The affidavit did not mention that the premises were located in Beckham county, although all of the rest of the description is specific and it is sworn to before G. H. Hedick, justice of the peace for Sayre city, district No. 1 in Beckham county.

In the closing prayer of the affidavit we find the following:

“Affiant prays that a search warrant be issued to the sheriff or any constable of Beckham County commanding him to search the premises and seize all liquors therein and otherwise proceed according to law.”

We think this closing paragraph, when considered together with the very particular description set forth in the affidavit, is sufficient to justify the justice of the peace in issuing a search warrant for 'the premises described in the affidavit and further stating that they are located in Beckham county, State of Oklahoma. It would be a very technical and strained construction if we should hold otherwise.

An examination of th record discloses that the sheriff and other officers of Beckham county went to the premises Avhere defendant’s tavern was located, and there in a box at the side of defendant’s house found 14 pints of whisky and 3 pints of gin. No testimony was offered on behalf of defendant.

It is our conclusion that defendant had a fair and impartial trial and that the judgment of conviction should be affirmed.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    BURL JONES v. STATE.
    No. A-10234.
    Sept. 8, 1943.
    (141 P. 2d 109.)

      Streeter Speakman and Moraul Bosonetto-, both of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for defendant in error.
   BAREFOOT, J.

Defendant, Burl Jones, was charged in the superior court of Okmulgee county with the crime of murder, was tried, convicted and sentenced to- serve a term of life imprisonment in the penitentiary, and had appealed.

The charge against this defendant was the outgrowth of the killing of John Howard Evans, on January 26, 1933. The body of deceased was found under a culvert near Eufaula, in McIntosh county, a distance of about 50 miles from the town of Mounds, in Okmulgee county, a day or two folio-wing the alleged date of the killing.

It may be noted that the preliminary complaint charging this defendant with the crime of murder was filed on January 2-1, 1941, almost eight years after the body of deceased was found. The information upon which he was tried was filed February 1, 1941. Defendant was first tried upon this- information on February 19, 1941, and the trial resulted in a hung jury. Defendant was again tried on November 17, 1941, with the result as- above stated. The defendant is now in the State Penitentiary, ■pending a decision of this case, and for this reason his case has been advanced.

Por a reversal of this case, it is contended:

“I. The evidence adduced by the state is not sufficient to* sustain the conviction, for the following reasons:
“1. The evidence of the state, aside from the admissions against interest, is not sufficient to sustain a conviction.
“2. The evidence reciting admissions against interest is so discredited by the circumstances that it is not sufficient to sustain a conviction in view of the rule of law that this class of evidence is recognized as the weakest kind of evidence known to the law.
“II. The trial court 'erred in admitting incompetent and prejudicial evidence.
“HI. The court erred in instruction No. 10, on the subject of alibi in that the court instructed the jury that the defense of alibi was not available if the jury should find that the defendant aided, abetted, advised, assisted or encouraged another in the commission of the crime, whereas there is nO' evidence nor theory advanced by the state upon the issue of aiding or abetting by the defendant :”

A consideration of the first assignment of error necessitates a short review of the evidence, and especially by reason of the length of time between the killing of deceased and the filing of charges against this defendant, a period of almost eight years.

On Saturday morning, January 28, 1933, it was reported to* the office of the sheriff of McIntosh county that a dead man, Avhich proved to be John Howard Evans, had been found under a culvert, approximately five miles north of Eufaula. There was a bullet hole in his, head. The sheriffs of McIntosh and Okmulgee counties made extensive investigations in their efforts to- find who had committed the crime, and on January 31, 1933, the defendant and Joe Wills were arrested and a complaint filed in the justice court of Okmulgee county, charging them with murder. A preliminary examination was had on February 17, 1933, and Joe Wills was released, and the defendant held. An information was filed against the defendant in the superior court, and some time later the case was dismissed on the recommendation of the county attorney of Okmulgee county.

While these charges were pending against the defendant, he and Joe Wills were charged with the crime of counterfeiting, entered pleas of guilty, and were sentenced to the Federal Penitentiary at Leavenworth for la term of ten years. The defendant entered the Penitentiary on December 20, 1933, and was released on January 3, 1940.

After his release from the Federal Penitentiary, Joe Wills made a statement to' the sheriff of Okmulgee county directly implicating the defendant with the murder of the deceased John Howard Evans, in Okmulgee county, on January 26, 1933, and this led to the refiling of the murder charge against this defendant.

Wills testified at the first trial when there was a hung jury, and also at the second trial when the defendant was convicted. His evidence was that he was working for defendant at his garage in Mounds prior to January 26, 1933. That defendant sold a Chevrolet car to John Howard Evans some two or three months before he ivas killed, and that witness was present when the deal iva.s made. That Evans paid cash for the car, in the sum of $714, but at his own suggestion gave the defendant a mortgage on the same, so that if he should be caught with liquor therein, defendant could claim the car, and it would not be confiscated. That this plan was carried out, and Evans and his wife left soon thereafter in the car for California. They mortgaged the car while in California. In the meantime, the note and mortgage given to defendant had been transferred to the Liberty Investment Company of Muskogee, headed by a Mr. Board. (Defendant testified that Evans did not pay cash for the car, and after making two payments permitted the payments to become delinquent.) Wills further testified that after Evans returned from California, he and the witness went to Dallas, Tex., where they were arrested upon a warrant sworn out by Mr. Board, and that the defendant and Mr. Board went to Texas and secured their release. The Evans car was turned over to the finance company, and a few days thereafter he secured another car, a Ford coupe, from a dealer in Tulsa. Wills testified that Mr. Jones bought the Evans car when.it was sold under the mortgage, and that Jones procured the Ford for Evans.

Wills further testified that on January 26, 1933, Evans came to his. home in Mounds and told him that he had been to. Sapulpa, to see a lawyer, and was going to bring suit against Jones on the car deal. That he and Jones and Evans met about 9 o’clock in the morning, and Jones told Evans he would go to Muskogee with him and get his car back,'and they were getting ready to gO'. Wills asked Evans to take a package for him from the garage where they were talking to his home. He testified :

* * I asked them if they would take this package down to the house in this car. I rode down with him — - Herb (John Howard Evans) drove me down, taken the package out and Herb drove off. That is the last time I ever saw him alive.. Q. Do you know what kind of car he was driving? A. Yes, sir; Ford coupe that Burl got at Tulsa.”

This was on the day Evans was murdered. Wills then testified that about 11 or 11:30 in the morning, this same day, the defendant returned to his home in Mounds, driving a Nash car. That Avitness got in the car, and the defendant drove out in the country about a mile or a mile and a half north of Mounds, and there told him 'that he had killed Evans. His testimony was as follows:

“Q. What kind of Nash was it, do- you remember? A. Sedan. So Ave Avent out about a mile, or mile and a half north of Mounds, pulled out side of the. road, and he asked me if I was a good friend of his. ‘Well,’ I said, ‘Always have been.’ ‘Well,’ he said, ‘Going to tell you I just bumped that big son of a bitch off.’ I said, ‘Wha.t?’ ‘Yes,’ he said ‘I killed that big son of a bitch, blowed his brains out.’ ”

Wills further testified that he had an appointment Avith his laAvyer, R. C. Clark, at Tulsa, at the Mayo Hotel, and so told the defendant, and that defendant siaid: “I will go AAÚth you. I have this Ford coupe at the house and got to get rid of it.” That the Avitness drove the Nash belonging to dones, and Jones drove the Ford to Sapulpa, left it parked on the street, and got in the car with the AAdtaess, and they Avent on to Tulsa. That they left Tulsa about 1 or 2 o’clock in the afternoon. That at 4 o’clock in the afternoon Jones came to- his house and Avanted him to help him get rid of the body, testifying:

“A. Well, along about 4 o’clock, I judge, right at it, Burl hé comes back down to the house. He said, ‘Joe, you got to come help me load the son of a bitch, he is a heavy son" of a gun.’ ‘Well,’ I told him, ‘I wouldn’t even look at the man tor a thousand dollars, let alone-help you load him.’ Q.. Did he tell you Avhere he killed him? A. He told me Avhere he killed him Q. Where did he tell you? A. Out at the farm.”

On cross-examination lie testified that he immediately told his wife and his sister and “Boy Oreen” that Jones told him he had killed Evans.

It is unnecessary to go' at length into the cross-examination of this witness. It was the contention of the state that defendant killed the deceased, Evans., to keep him from giving him trouble about the automobile. It Avas the defendant’s contention that he had nothing- to do with killing Evans, and that certain other parties had procured Wills to tell this story.

We shall not go into the details of the testimony of other witnesses Avhich gave circumstances tending to corroborate the eAddence of the Avitness Wills, The defendant oAvned a farm four miles from Mounds. He had taken possession of this farm about the 1st of January, 1933. His brother-in-law and Avife Avere living on the premises. Their testimony Avas damaging to the defendant. They testified to his coming to the farm on the morning of January 26th in a Ford coupe, and having a man in the car with him. That defendant and this unknown man were near the bam Avhere the state contends the murder Avas committed. That just before he left, defendant asked his brother-in-law to “kinda keep your eye on the barn.” They testified that he returned to the farm in the afternoon, and that they left the premises Avhile he was there. This was the afternoon that the body of the deceased was supposed to have been taken to McIntosh county, a distance of some 50 miles, and placed under a culvert.

It was also proven that a bin in the barn contained oa.ts, and Avhen the body of the deceased was found, oats were found in the clothing and hair. The sheriff of Ok-mulge county testified that an examination of the bin disclosed blood stains. Boards Avitli the blood stains were removed and sent to the State Chemist, who did not make a report thereon, but explained to Sheriff Lenox that “it was pretty hard to make a determination between human and animal blood.” Other circumstances were proven, which it is unnecessary to state.

The defendant’s defense was that of an alibi. His contention was that on the morning of January 26, 1983, he went to town (Mounds) for breakfast about 7 o’clock, and talked with certain parties whom he mentions, and then Avent to Tulsa to attend a meeting' of Chevrolet dealers at the Mayo Hotel. That about 11:30 in the morning he left the meeting, and met R. C. Clark, an attorney of Okmulgee, and Joe Wills in the lobby of the Mayo Hotel. That he talked with them about Joe Wills’ counterfeiting case, and returned to Mounds about three or 3 :30 and stayed at his garage Avhile Otis Glenn, an employee, went to- Sapulpa to get a deed recorded. He was at the garage until about 6 or 6:30. He gave the names of parties who saw him, and testified to paying Mr. Raymond some money after four o’clock. About 8:30 he went to the hotel and asked about bridge players, bought a magazine and went home. He remained there reading until his wife and children returned from a recital they had attended at a church. He was corroborated in this testimony by other witnesses.

He testified that the first time he heard of or saw the deceased Evans after his return from California Avas when Wills called him to come to his house, saying that Evans was there and wanted to talk with him about his car. The next he heard was that Evans and Wills Avere in jail in Dallas, Tex., on a “hot car” charge. That he went to Muskogee and Avith Mr. Board of the finance company Avent to Dallas and helped to secure the release of Wills and Evans. He denied buying the Ford car for the deceased, as testified by Wills, but said that he had recommended Evans to a Mr. Chowning at Tulsa, who handled his second-hand cars, and that Evans bought the Ford from Chowning. He denied being at his farm on January 26, 1933, and denied telling the witness Wills, or anyone else, that he had killed Evans, or that he tried to get Wills to assist in disposing of the body. He produced a number of witnesses to corroborate different points of his evidence, and especially as to his whereabouts on January 26, 1933.

There was also much evidence of the activities of one 'Warren, with reference to> having the charge of murder refiled against the defendant. The defendant Jones had purchased a lumberyard from Warren after his release from the Federal Penitentiary, and was paying it out. The evidence revealed that he had paid a substantial sum on the indebtedness, and that Warren was trying to get the lumberyard back. It was contended by the defense that Warren had influenced the witness Joe Wills to testify as he did against the defendant, and that Warren had offered to compensate him for so testifying. The testimony of the witness Wills was:

“Q. Did Warren ever promise you anything? A. No. Q. Ever give you anything? A. No, sir. Q. Or help you in any wa.y? A. He told me if I got a chance buy a butcher shop in Mounds, he would raise the money.”

On cross-examination he testified:

“Q. That is the same time he wanted you to go down to Okmulgee, and be a witness against Burl Jones? A. Well, I expect I talked to Mr. Warren a dozen timesi, Q. That is the time he offered to fix you up, buy a butcher shop, if you would be a witness against Burl Jones? A. After Burl was tried at the preliminary. Q. All I want to know is just the facts. That was what Warren came down for, to fix you against Burl Jones, wasn’t it? A. Well, in a way, I guess it was, Q. Offered to fix you up with a butcher shop> sometime? A. Yes, he offered to.”

Defendant also produced a number of substantial witnesses who testified as to his good character and reputation prior to' his being charged with this murder.

After a careful examination of the record, we find that the evidence offered by the state is not insufficient to sustain the judgment and sentence. It is true that it is conflicting; that close questions of time are involved as to whether defendant could have been present at the place where it was necessary for him to be in order to have committed the crime, and that the proof at time depends upon circumstantial evidence. Gregg v. State, 69 Okla, Or, 103’, 101 P. 2d 289. But, taken as a whole, we are of the opinion that we would not be justified in holding that it was insufficient to sustain the judgment and sentence.

In saying this, we have taken into consideration the testimony of the witness -Joe Wills, a part of which consists of statements made by the defendant, and which are known in the law as statements against interest. It is true that this evidence is received and considered with caution. 22 C. J. S., Criminal Law, § 730, p. 1248; People v. Christocakos, 357 Ill. 599, 192 N.E. 677; People v. Gibbs, 349 Ill. 83, 181 N.E. 628; Herbert v. Lankershim, 9 Cal. 2d 409, 71 P. 2d 220. But there is sufficient direct and circumstantial evidence to justify the submission of the question of guilt to- the jury, as shown by the foregoing statement of the evidence. The other questions raised by the defendant will be hereinafter discussed.

The second contention of defendant is that incompetent, hearsay and prejudicial evidence was admitted. This contention is based upon the evidence of John Mc-Quillan, sheriff of McIntosh county. He testified that soon after finding the body in McIntosh county, he went to Muskogee and got a party from the office of the finance company to go with him to Sapulpa, where he made certain investigations., and later went to the farm of defendant in Okmulgee county, where he found a Nash car belonging to defendant. His testimony was as follows:

“Q. What did vour investigation disclose out there, Sheriff? A. I found the kind of car I was looking for. Q. What was it? A. Nash, four-door sedan. Q. Why were you looking for a Nash? A. In my investigation I learned there was a Nash car, old-like car— Mr. Eaton: Whatever he learned is hearsay. The Court: Unless it is connected up it wouldn’t be material. Overruled. Mr. Eaton: Exception. A. Shall I go. ahead? Q. Yes. A. I learned there was a Nash car something like — well, the early model car was larger than they are now, must have been a ‘28 or ‘27 Nash from the way they described it. This car was parked on- the side of the road, something like 50 or 60 yards from this culvert, on the night the body was supposed to have been left there. Mr. Board had those finance papers — handled some of Jones’ paper, I don’t know whether all of it. I went there and found they had that kind of a car. Mr. Eaton: We object as incompetent, irrelevant and immaterial. The Court: Tell what you did. Did you see the car? A. I did, I went to the garage. Q. Which garage? A. Jones’ garage in Mounds, asked about a car of this description, and the boy — I didn’t know who he was, told me— Q. Did you find the car? A. I found the car at Jones’ farm, which turned out to be in Okmulgee county.”

And on cross-examination, he testified as follows :

“Q. Where did you first learn about this Nash car? A. Just a day or so> probably a couple of days after I found the body. Q. You never brought that Nash down where the body was? A. No, sir. Q. Somebody told you all you knew about the Nash car? A. A fellow told me he seen that kind of a car that night. Q. What was his name? A. His name? Q. Is he here? Mr. Pitchford: He was subpoenaed. A. I know him well, but the name slips my mind — Sweeney, something- like that. Q. You ¡based your further investigation on what he told you, whoever he was? A. What was it? Q. You based your further investigation on what he told you? A. I wouldn’t have looked for this car that had been here — it was out there on that particular night, but I ivas looking* for that kind of a car. Q. They were things somebody told you?' A. Sure. Q. You didn’t know a thing about that car being down there except from hearsay? A. That’s all. Mr. Eaton: We move to strike all that, based upon hearsay, incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Eaton: We except.”

We are of the opinion that a. part of this evidence ivas incompetent. That part in which the Avitness testified : “This- car was parked on the side of the road, something like 50 or 60 yards from this culvert, on the night the body was supposed to- be left there,” is clearly incompetent and hearsay testimony. This Avitness did not see the car: there, and could only have been testifying to what others told him, and not in the presence of the defendant. But AAdien taken into consideration Avith the testimony of the Avitness Sweeney, who testified to seeing a Nash car parked by the roadside near the culvert Avhere the body of deceased was- found, on the date charged, we cannot say that the admission of this evidence, although incompetent, Avould be sufficient error alone for the reversal of this case.

There Avas also evidence with reference to the finding of the shoes of deceased some distance from where the body Avasi found. This evidence would be with reference to the Aveiglit to- be given same by the jury, rather than to- the competency of the same.

The witness Bond was asked by the state if defendant kept whisky in the barn. He answered, “not continuously, no”; but said he had kept it there two or three times, in small amounts he had taken on trades. This evidence was incompetent, and should not be permitted if this case is retried.

It is next contended, by the defendant that the court erred in giving to the jury instruction No. 10, which was as follows:

“The defendant has interposed in this case as one of the defenses, what is known in law as an alibi, that is, that the defendant was at another and different place at the time of the commission of the crime. The law is that such a defense is proper and legitimate and that the jury should consider all of the evidence bearing upon his point, whether introduced by the state or the defendant, and if after a careful consideration of all the evidence in the case, the jury entertain a reasonable doubt as to whether the defendant was in such other place when the crime was committed, then and in that event, the jury should give the defendant the benefit of such doubt and acquit him, unless you should further find, beyond a, reasonable doubt, that at or before the crime was committed, the defendant had- aided, abetted, advised, assisted or encouraged some other person in the commission thereof

It is admitted by the defendant that no exception ■was taken to the giving of this instruction, but it contends that the last part of this- instruction, which states: “unless you should further find, beyond a reasonable dcu-bt, that at or before the crime was committed, the defendant had aided, abetted, advised, assisted or encouraged some other person in the commission thereof ,” is so fundamentally wrong and prejudicial, in view’' of the charge and the evidence in this case, that the same should be considered, although an exception was not taken to the giving of the same.

We have carefully examined the many authorities cited in the briefs of both parties, and we are familiar with the rule that has so- often been announced with reference to the consideration by this court of instructions where no exception was taken at the time of the trial.

This rule was early announced by this court in the case of Dooling v. State, 3 Okla. Cr. 491, 106 P. 982, when it was said:

“An error, not excepted to during the trial or in the motion for new trial, and urged for the first time in this court, will not be reviewed unless fundamental and clearly deprived the accused of a substantial right.”

This doctrine has been closely adhered to since that time. Rogers v State, 8 Okla. Cr. 226, 127 P. 365; Humphrey v. State, 8 Okla. Cr. 449, 128 P. 742; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685; Morrison v. State, 37 Okla. Cr. 359, 258 P. 1050; Walkenhorst v. State, 38 Okla. 180, 259 P. 663; Williams v. State, 40 Okla. Cr. 303, 268 P. 329; Stribbling v. State, 41 Okla. Cr. 252, 272 P. 488; Callahan v. State, 42 Okla. Cr, 425, 276 P. 494; Jarman v. State, 57 Okla. Cr. 226, 47 P. 2d 220; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Knight v. State, 73 Okla. Cr. 107, 118 P. 2d 255, 256; Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387; Tyler v. State, 74 Okla. Cr. 39, 122 P. 2d 826.

In many of the cases cited and - decided by this court, the judgment has been reversed for the reason that the error in the given instruction was “fundamental and clearly deprived the accused of a substantial right.” In others the instruction has been held as harmless, and especially in view of the other instructions given and a consideration of the whole record in the case.

As to- the above rule, both parties in their briefs- are in accord as to the true rule of this court as above announced. It therefore resolves itself into the question as to whether the instruction given in the instant case, and in view of the whole record, is so fundamentally wrong and prejudicial that it deprived the defendant of a substantial right, and that it will therefore be considered, although no exception was taken thereto.

The state in its brief, in answer to the contention of the defendant, says:

“In order to clarify the issue, we shall confine our argument to two* propositions:
“First: Due to the state of the record showing that no exception or objection was taken to the instruction, the trial court did not- commit a fundamental error of such character that is subject to review on appeal.
“Second: If the assignment is subject to review, the instruction did not materially injure the defendant in the way of depriving him of a right essential to his alibi defense, and, therefore, the trial court did not commit reversible error by giving said instruction.”'

These two propositions may well be considered together in view of the rule heretofore stated.

In the instant case, the defendant Burl Jones alone was charged in the information with the murder of the deceased, John Howard Evans*. There was no* charge that any party was connected with the killing, other than the defendant. He Ayas not charged Avith “aiding or abetting” anyone in the planning or commission of this crime. The state in presenting its evidence gave no testimony that in any Avay connected any person Avitk the killing other than the defendant. From the record as a whole, the jury could have surmised that some one other than the defendant assisted in the commission of the crime, and for this very reason the giving of that part of the instruction on “hiding and abetting” Avas damaging to the defendant. His defense was that of an alibi. This instruction deprived him of that defense if the jury believed that he “aided or abetted” someone else in the charge against him, and the evidence did not justify this belief.

It is urged by the defendant in his. brief that the jury in this case could have come to the conclusion that the witness Joe Wills, who testified against the defendant, or others who were associated Avith him, committed this crime, and that the defendant “aided and abetted” them in its commissiontherefore, under this instruction, if they so believed, he would be deprived of the defense made by him — that of an alibi. We can easily see how this might be true.

We have examined the authorities cited by defendant, and. find that they support the contention which he makes, as applied to the record and evidence.

The general rule is laid down in 23 C.J.S., Criminal Law, p. 9.06, § 1312, where it is. said:

“However, an instruction must be based on and applicable to the issues supported by the evidence, and although an instruction may state a correct principle of law, if it. is. not based upon or in conformity with the issues or facts raised or supported by the evidence it is erroneous * *

Also in 14' R.C.L. p. 790:

“If an instruction is not thus based on the evidence it is erroneous in that it introduces, before the jury facts not presented thereby, and is well calculated to mislead and induce them to suppose that such a state of facts in the opinion of the court AVas possible under the evidence, and might be considered by them. * * *
“The courts, however*, ordinarily regard the giving! of an instruction having no basis, or foundation in the evidence in the case in which it is given as prejudicial, unless it is clearly apparent the jury could not have been misled by it.”

The following cases clearly support the text above quoted, and are directly in point: State v. Byrd, 278 Mo. 426, 213 S.W. 35; State v. Baum, 47 Utah, 7, 151 P. 518; State v. Marasco, 81 Utah, 325, 17 P. 2d 919; People v. Rongetti, 331 Ill. 581, 163 N.E. 373; and People v. Sheffield, 108 Cal. App. 721, 293 P. 72.

In the Byrd Case, supra [278 Mo. 426, 213 S.W. 37], it is said:

“Instruction numbered 2, given by the court, is based on the assumption that there was testimony that another than the defendant had fired the fatal shot, and the jury' is told that, if they believe the defendant was present, aiding and abetting, they may find him guilty. The error in the giving of this instruction consisted in the fact that there was no evidence to sustain it. The only inference on which the assumption could be based was that there were other shots fired at about the time the defendant was pursuing and shooting at the deceased; that such other shots were fired at the latter there is no. evidence; nor is there any other fact to sustain the assumption that any one was acting in conjunction with the defendant. There, was no authority therefore, for the hypothesis in the instruction of a common design or a community of purpose as existed in State v. Murray, 193 S.W. [830] loe. cit. 832, and other cases of like type cited in respondent’s brief. While in the abstract, the instruction may not be subject to criticism, it rests upon nothing more substantial than that it may have been possible for the fatal shot to have been fired by another than the defendant. This will not suffice to sustain a. conviction. While it is not to be questioned that proof of an aiding and abetting in the commission of a crime may be shown by circumstantial evidence, none was adduced of sufficient probative force to justify the giving of this instruction.”

In the Baum case, supra [47 Utah 7, 151 P. 519] it is said:

“Complaint also is made of this: charge:
“ ‘All persons concerned in the commission of a crime, whether it he a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals in any crime so committed.’
“Such a charge may be proper enough, in a proper base; but the court had no such case before it. There were neither pleadings nor evidence to render such a charge pertinent. What the state charged was that the defendant directly entered the building and took the goods therefrom; and what it claimed by its evidence was that he, with two others, directly entered and took the goods —directly committed the offense. There was no evidence to show, and no one claimed, that the defendant but aided or abetted in the commission of the offense, or, not being present, advised or encouraged its commission. There, hence, was no occasion to< give that kind of a charge. Under the circumstances, we think it was misleading and harmful.”

In the Sheffield Case, supra [108 Cal. App. 721, 293 P. 73], the court says:

'“The law is well settled that instructions given to a jury must be adapted to- the evidence and circumstances of the case on trial. To give instructions, even though they contain a correct statement of abstract legal principles, which are prejudicial will warrant a reversal of a judgment of conviction, and constitutes error. See People v. Savinovich, 59 Cal. App. 240, 210 P. 526, involving a prosecution for arson, yet quite parallel to- the case at bar.”

We also call attention to the case of Whisnant v. State, 39 Okla. Cr. 214, 264 P. 837; Forrester v. State, 45 Okla. Cr. 205, 282 P. 682; and Dyer v. State, 58 Okla. Cr. 345, 53 P. 2d 700.

This court had occasion to discuss what constitutes fundamental error in the case of Morrison v. State, 37 Okla. Cr. 359, 258 P. 1050, where Judge Edwards says:

' “Fundamental error is error which goes to' the foundation of the case, or which takes from a defendant a right essential to his defense. Where it appears and justice requires, this court will consider it whether or not exceptions are taken in the court below or whether or not it be assigned as error on appeal.”

See, also, Tyler v. State, supra.

The rule which should apply to the facts in the instant ease and the reasons therefor are so well stated in the case of People v. Roe, 189 Cal. 548, 209 P. 560, we quote it:

“While there may be exceptional cases in which an inapplicable instruction will not prejudice defendant, when it is clear that such instructions are well calculated to mislead the jury, and in all likelihood affected their conclusion to defendant’s prejudice on the only issue in the. case, the giving thereof, though correct in principle, is prejudicial error.” And in the body of the opinion, the court said:
“The error of inapplicable instructions rests in the fact that they pertain to points not ‘pertinent to the issue,’ and contain matters of law for the jury’s consideration not ‘necessary for their information,’ and therefore, instead of enlightening, tend to confuse and mislead the jury. This is so because such instructions, in effect, either create a false issue or constitute a misstatement of the real issue, thereby distracting the attention of the jury from and befogging the real issue.
“There may be, of course, exceptional cases in which an inapplicable, instruction will not operate to the prejudice of a- defendant in a criminal case, but when it is clear, as it seems to us in tbe instant case, that such instructions are well calculated to- mislead a jury, and in all likelihood affected their conclusion to the prejudice of the defendant upon the only issue in the case, the giving thereof, even though correct in principle, constitutes error equally as grave as would be the giving of instructions fundamentally wrong. People v. Devine, 95 Cal. 227, 30 P. 378.”

See, also, La Shar v. People, 74 Colo. 503, 223 P. 59, and People v. Barton, 72 Cal. App. 431, 237 P. 767.

From what has heretofore been stated, it will be observed that we are of the opinion that the giving of the instruction above quoted was fundamental error, and that by the giving of the same this defendant was deprived of a substantial right, and from an examination of the whole record, that the harmless error doctrine should not prevail in this case.

We refrain from a further discussion of the facts.

The record discloses that this defendant is now confined in the State Penitentiary at McAlester. The warden of the penitentiary is hereby directed to release this defendant to the custody of the sheriff of Okmulgee county, pending the further order of the superior court of that county; and the judgment and sentence of the superior court of Okmulgee county is reversed, and the case remanded.

JONES, P. J., concurs. DOYDE, J., dissents.