text:
    LILLIE RIDGEWAY v. STATE.
    No. A-4129.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 900.)
    (Syllabus.)
    1. Witnesses — Court not to Question Defendant so as to Indicate Belief in Guilt. Trial courts should carefully refrain from propounding questions to defendants on trial that may be construed as indicating that the court believes the accused is guilty, or from making any other statement susceptible of like import.
    2. Trial — Instruction not Erroneous as- Raising Inference of Guilt. Instructions examined and held sufficient.
    3. False Pret|e!nses — Evidence of Reimbursement to Aggrieved Person Admissible in Mitigation. In a false pretense case where evidence is offered to show that the aggrieved person has been fully reimbursed for all pecuniary losses, such evidence should be admitted, not to be considered in justification of the act, but to be taken into consideration in mitiga-ton of the punishment.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.

      Lillie Ridgeway was convicted of obtaining money by means of a bogus draft, and sbe appeals.
    Modified and affirmed.
    Champion & George, for plaintiff in error.
    The Attorney General, and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Lillie Ridgeway, plaintiff in error, in this opinion referred to as the defendant, was by information charged with the violation of section 2146, Comp. Stat. 1921, wherein it was charged that the defendant, with the intent to cheat and defraud the City State Bank of Ardmore, by means and use of a certain false, and bogus bank draft of the sum of $1,010, executed by the Magnolia Petroleum Company, and payable to Ruby Ridgeway, falsely representing that she was the payee of said draft, did receive and accept payment of the amount named in said draft by means of such false representation.

The record discloses that Will Ridgeway, the husband of the defendant, was jointly informed against, and placed on trial with her; that in the course of the trial it was shown that Will Ridgeway had been adjudged incompetent, and that his mother had been appointed guardian of his person and estate, and the charge as to him was dismissed. The evidence shows that Will Ridgeway was an Indian, who had received an allotment, consisting of 320 acres near the Heald-ton oil field; that Will Ridgeway was married to the defendant on the 22di day of July, 1919, and that at the time of the alleged offense they were, living in a home belonging to him in the city of Ardmore; that before he was adjudged incompetent he leased his lands to some oil company, from whom he was to receive advance royalties of $1,000 every six months. That a few days prior to the offense the draft from the Magnolia Petroleum Company described in the information was delivered at defendant’s residence' through the mail; that the defendant took this draft to the City National Bank of Ardmore, and indorsed the name of Ruby Ridgeway thereon, and received from the bank the amount named in the draft. She was identified at the teller’s window as “Mrs. Ridgeway” by a physician of Ardmore.

The defendant says that she assumed that this draft was ■in payment of the advance royalties due her husband from ■the oil company; that her husband was sick at the time, and she thought she had1 a right to cash the draft; that she knew that her husband’s mother was his guardian, but that the guardian had refused to advance them any money, and that she cashed this draft in order to buy furniture and meet other expenses; that her name was Lillie Ridgeway, but that she assumed' that the. draft was intended for her.

The Monday following the cashing of this draft on Saturday, defendant and her husband purchased an automobile and drove to McAlester, where they remained with relatives for a period of about two weeks; from there they went to Ranger, Tex., and later to El Paso, where they sold the automobile, and were about to purchase railway tickets to return to Ardmore, when they were apprehended and arrested by the officers who brought them back to Ardmore.

Defendant says the judgment of the trial court should be reversed for the following reasons: First. Because she was prevented1 from having a fair trial by reason of the conduct of the trial judge in making certain interrogations in the presence of the jury, indicating that he was of the opinion that the defendant was guilty as charged; second, that the court erred in his instructions to the jury; third, that the court erred in refusing to give an instruction offered by the defendant relating to her motive in cashing this draft; fourth, that the punishment assessed by the jury was excessive.

The part of defendant’s testimony in connection with which the judge’s remarks are complained of is as follows:

“Q. You and your husband, Will, lived together? A. Yes, sir; and the baby.
“Q. Prior to that time I will get you to state whether or not any one had been appointed guardian for Will?
“Mr. Mathers, County Attorney: Objected to for the reason that Will is out of the case.
“Mr. George: She signed the check, but if she did it without any criminal intent she isn’t guilty of the crime charged. If the court rules that whether she signed the check is the only issue in this case, then she is guilty.
“The Court: Proceed, gentlemen. . The court will rule as we get to it.
“Q. What was your answer to the last question about the guardian?
“Mr. Mathers: The court sustained the objection.
“The Court: That matter is immaterial. Gentlemen of the jury, this boy Will Ridgeway has a guardian, but he is out of the case.
“Q. Who is his guardian. A. His mother.
“Mr. Mathers: Objected to.
“The Court: Sustained.
“Mr. George: Exceptions.
“Q. About when was it you received this check? A. I don’t know, I forget when I got it.
“Q. It was somewhere about the date shown here? A. It was in the spring.
“Q. You mean last fall? A. Yes,' sir.
“Q. Now, where was your husband when you received this check? A. He was in bed; sick.
“Q. What did you do with the cheek when it came? A. He was due lease rent for six months, and I thought it was for that. I took the checks down and cashed them.
‘ ‘ Q. Why did you take these cheeks down and cash them? A, To get some money.
“Q. Why? A. Because his mother was guardian, and they wouldn’t let me and Will draw checks.
“Q. You knew he had oil royalty and rentals coming in? A. Yes, sir.
“Q. Who collected them at that time? A. His mother.
“Q. As his guardian A. Yes, sir.
“Q. Were you and his mother on friendly terms at that time? A. No, sir.
“Q. State whether or not she was—
“Mr. Mathers: Objected to.
“The Court: Sustained.
“Mr. George: Exception. We expect to prove by this witness that she and Mrs. Ridgeway were at outs, not on good terms, and that Mrs. Ridgeway wouldn’t, let them have any money and that when this check came, in order to keep Mrs. Ridgeway from getting the money—
“The Court: Mrs. Ridgeway couldn’t have let her have any money except by order of the county judge, you know that as a lawyer. Objection sustained.
“Mr. George: Note our exceptions, and exceptions to the remarks of the court. * * *”

Recross-examination:

“Mr. Mathers: The Magnolia Petroleum Company did-n’t owe you any money? A. He leased to the Magnolia in some way.
“Q. They didn’t owe your husband any'money for any oil? A. I don’t know, he drew cheeks every six months.
“Q. Was that for rental on this lease? A. I don’t know, he drew $1,000 every six months.
“Q. The Prairie didn’t owe him any money? A. I don’t know anything about that; I just know I thought it was our checks.
“Mr. George: You say you did get $1,000 every six months? A. Yes, sir; that come to our house.
“By the Court: You knew that was not your money, and not your husband’s money at the time you cashed that check? A. No, sir.
“Mr. George: Defendant excepts- to the remarks of the court.”

• Defendant complains that at the time the court asked the question, “You knew that was not your money and not your husband’s money at the time you cashed that check?” the attitude and facial expression of the court was such as to leave the impression with the jury that the court believed that she cashed the draft with a felonious intent to defraud. The facial expression and the emphasis placed upon this question by the court are not in the record; we think the question propounded by the court was of doubtful propriety, but upon consideration of the other portions of the record we are constrained to hold that such conduct of the trial judge did not operate to the prejudice of the defendant. In passing,, it may be proper to remark that trial judges should refrain from intimating to a jury, by word or action, their belief as to the guilt or innocence of the accused on trial. Jones v. State, 20 Okla. Cr. 233, 202 Pac. 187; Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236.

If this case were a close question upon the facts, and the question of criminal intent was in doubt from the whole record, the court might hold otherwise, but other testimony in the. record indicates that the defendant at the time the draft was presented for payment and cashed knew that she had no right to this money.

The court instructed the jury in part as follows:

“To the information filed against the defendants charging them with said crime they have entered their plea of not guilty, and the court has sustained a demurrer to the evidence as against the defendant Bill Ridgeway, for the reason that the testimony introduced by the state does not show he had anything to do with the passing of said bogus check. Whether he did or not I do not know; but that is not developed in the evidence. The defendant Lillie Ridgeway pleads not guilty, and you are instructed that this defendant, as are defendants in all criminal cases, is presumed to be innocent of the offense charged against, her, until her guilt has been established by legal and competent testimony to your satisfaction beyond a reasonable doubt.”

The defendant complains of the expression in this instruction that “The court has sustained a demurrer to the evidence as- against the defendant Bill Ridgeway, for the reason that the testimony introduced by the state does not show he had anything to do with the passing of said bogus check,” thereby raising an inference that the defendant there on trial did cash a “bogus check,” within the meaning of the statute.

Instruction No. 5, following the above, is as- follows:

“You are therefore instructed, gentlemen of the jury, that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant Lillie Ridgeway did in Carter county, and in the state of Oklahoma, on or about the - day of October, 1920, willfully, unlawfully, fraudulently, and feloniously, with the fraudulent and felonious intent then and there to cheat and defraud, and by means and use of a certain false and! bogus bank draft, which she, the said Lillie Ridgeway, then and there well knew to be false and bogus, receive and obtain from the City State Bank at Ard-more, Okla., the sum of $1,010.90, or any other sum, good and lawful money of the United States of America, with intent to cheat and defraud said bank out of said money, then it will be your duty as jurors to convict the defendant of the crime charged against her, and fix her punishment at confinement in the state penitentiary for a term not exceeding seven years. ’

In this connection the defendant requested and was refused the following instruction:

“Gentlemen of the jury, you are instructed that if you find from the evidence, or have a reasonable doubt thereof, that at the time the defendant Lillie Ridgeway indorsed and cashed the cheek mentioned in the information, that said defendant at the time in good faith believed that the check was the property of her husband, and that in so doing she acted without any intent of cheating and defrauding the City State Bank of Ardmore, or any other person or corporation in any way, then and in that event your verdict should be in favor of the defendant.”

Construing the instructions given as a whole, we hold that the court committed no error in refusing the instruction requested. The jury were admonished that they must find and believe from the evidence, beyond a reasonable doubt, that the defendant, with intent to cheat and defraud, cashed the bogus draft, knowing the same to be false and bogus. This, in our judgment, was sufficient, and the refusal to give the instruction requested did not amount to a denial of the submission to the jury of defendant’s theory of defense, namely that she cashed this draft without any evil or criminal intent.

The defendant next urges that the punishment assessed by the jury was excessive. The testimony of one of the bankers indicates that the defendants reimbursed or made good to the bank its losses growing out of this transaction. Quoting again from the record:

“Q. This money has all been refunded to your bank, hasn’t it?
“Mr. Mathers: Objected to.
“The Court: Let him answer.
“A. I can’t say it has.
“Q. You can’t say it has been paid? A. I can’t say the money has been refunded; no, sir.
“Q. Your bank has been paid, hasn’t it? A. So far as our records are concerned it has.
“Q. They also paid all expenses, court costs, and sheriff’s costs and attorney’s fees to Brown and Williams, $75?
“Mr. Mathers: Objected to.
“The Court: Sustained.
“Mr. George: Exceptions.”

The court should have permitted the defendant to show that the bank had been fully reimbursed. Under our statutes the jury may, and in some instances are required to, fix the penalty. In doing so it would be proper for the jury to consider the nature of offense and the attending circumstances. Where the jury has a wide discretion in fixing the punishment, as in this ease from one to seven years, they would be justified in taking into consideration the gravity of the offense, and the pecuniary loss- suffered by the person aggrieved — not as justification for the offense, but in mitigation of punishment. 16 C. J. 1363; Dobbins v. State, 21 Okla. Cr. 403, 208 Pac. 1056; Williams v. State, 19 Okla. Cr. 307, 199 Pac. 400.

There were some extenuating circumstances connected with the commission of this offense, which considered together with the fact that the bank may have been reimbursed for its losses growing out of its commission, lead us to conclude that the judgment should be modified to the minimum of one year in the penitentiary, and the judgment of the trial court, as so modified, is affirmed.

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


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    Ex parte CHARLIE SAFARIK.
    No. A-4880.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 1112.)
    Habeas corpus by Charlie Safarik, alias Charlie Safarki, for discharge from the penitentiary.
    Writ allowed, and petitioner discharged.
    Lewis Paullin and E. C. Patton, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   MATSON, P. J.

This is a petition for writ of habeas corpus for the discharge of Charlie Safarik, alias Charlie Safarki, from the penitentiary at MeAlester, Okla., wherein it is alleged that he is unlawfully restrained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a judgment issued upon a conviction in the district court of Grant county, Okla., on a charge of having in his possession mash, wort, and wash, rendered on the 1st day of September, 1923, to serve a term of one year and to pay a fine of $100, and alleging that said' restraint is illegal and unauthorized, for the reason that the law under which he was convicted and is now serving a sentence, to wit, chapter 1, Session Laws of Oklahoma 1923, making it a felony to have in one’s possession a still, still worm, or mash, wort, or wash, etc., was held unconstitutional and void, as determined by this court in Ex parte Smith, 24 Okla. Cr. 415, 218' Pac. 708. The Assistant Attorney General appeared in open court and conceded that the writ should issue and the petitioner be discharged. In the case of Ex parte Smith, supra, the statute upon which this prosecution was based was held unconstitutional and void. It follows that the petitioner is illegally restrained of his liberty by the respondent, and that he is entitled to be discharged from the prison of which he complains, and that he is therefore by the judgment of this court 'discharged therefrom.

The clerk of this court will forward forthwith to the warden of the penitentiary at McAlester a duly certified copy of this opinion, and upon receipt of the same said warden is authorized to discharge said petitioner, Charlie Safar-ik, alias Charlie Safarki.

BESSEY and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    MRS. J. E. CASTEEL v. STATE.
    No. A-4238.
    Opinion Filed Oct. 20, 1923.
    (218 Pac. 1111.)
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    Mrs. J. E. Casteel was convicted of keeping a bawdy house, and she appeals.
    Reversed.
    Armstrong & Hill, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Appeal from the county court of Kay county. Conviction for keeping a bawdy house. Punishment assessed at fine of $500 and costs. Judgment rendered November 19, 1921.

The overcrowded condition of the docket of this court at this time is such that it is impossible to prepare extended written opinions in misdemeanor cases pending before the court. By express provision of statute (section 3054, Compiled Statutes 1921) written opinions in misdemeanor cases are left to the discretion of this court when in its judgment the public interest may be subserved by rendering a written opinion. Tucker v. State, 7 Okla. Cr. 634, 124 Pac. 1134, 125 Pac. 1089.

Plaintiff in error was jointly charged, tried, and convicted with her husband, J. E. Casteel, who was also fined in the sum of $500. J. E. Casteel paid the fine assessed against him, with costs of the prosecution.

An examination of the petition in error and case-made, including the transcript of the evidence, discloses that no new questions of law are presented by this appeal. The court is convinced, however, that several errors occurred during the progress of the trial prejudicial to the substantial rights of this plaintiff in error.

The judgment of the trial court is therefore reversed.


text:
    W. C. GOODNIGHT v. STATE.
    No. A-4733.
    Opinion Filed Oct. 22, 1923.
    (218 Pac. 1111.)
    (Syllabus.)
    Appeal and Error — Pardon Ground for Dismissal. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.

      W. C. Goodnight was convicted of felonious assault, and he appeals.
    Appeal dismissed and cause remanded.
    White & Reid, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Le Flore county on an information charging that in said county on or about the 9th day of June'; 1922, he did commit an assault upon one W. S. Harbinson by shooting him with a pistol, with the felonious intent the said Harbinson to kill. The jury fixed his punishment at imprisonment in the penitentiary for the term of three years. To reverse the judgment rendered in pursuance of the verdict on the 23d day of January, 1923, an appeal was duly perfected by filing in this court on June 19, 1923, a petition in error with case-made.

The plaintiff in error by his counsel of record has this day filed a motion to dismiss the appeal on the ground that the Governor has granted to the plaintiff in error and he has accepted a pardon on the 15th day of October, 1923.

By numerous decisions of this- court it is held when an appeal from a judgment of conviction is pending in this court, and plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered, adjudged, and ordered that this appeal be and the same is hereby dismissed, and the cause remanded to the district court of Le Flore county.

MATSON, P. J., and BESSEY, J., concur.


text:
    JOHN MOORE v. STATE.
    No. A-3939.
    Opinion Filed March 10, 1923.
    Rehearing Denied Oct. 27, 1923.
    (218 Pac. 1106.)
    (Syllabus.)
    1. Homicide — Assault with Intent to Kill — Elements of Crime. Under section 1756, Compiled Statutes 1921, defining certain assaults with intent to kill, it is not necessary to prove the elements of murder, but the charge is sustained if the defendant would have been guilty of any grade of felonious homicide had death ensued.
    2. Same — When Design to Kill Presumed. Where one mutually enters into a combat with another and in the course of the conflict which ensues he assaults such other person with means or force likely to produce death, the design to kill is presumed and the conviction is justified under the statute.
    3. Same — Conviction not' Reversed Where, Evidence of Accused Shows He Was not Without Fault'. Under section 2822, Compiled Statutes 1921, this court is not authorized to reverse a judgment of conviction because of minor errors in the court’s charge, where the testimony of the defendant is such as to show that he was not without fault in bringing on a combat between himself and the prosecuting witness.
    4. Instructions Sufficient. Instructions examined, and held sufficient to cover the law of the case and not prejudicially erroneous.
    Appeal from District Court, Cherokee County; A. C. Brewster, Judge.
    John Moore was convicted of an assault with intent to kill, and he appeals.
    Affirmed.
    This is an appeal from a judgment of conviction a,gainst the plaintiff in error, John Moore, hereinafter referred to as defendant, rendered in the district court of Cherokee county on the 16th day of September, 1920, wherein defendant was charged with the crime of assault with intent to kill one Henry Cannon, and his punishment fixed as above stated.
    Defendant, John Moore, and his brother, Claude Moore, were jointly charged with the offense, and, a severance having been requested by the defendants and granted by the court, John Moore was first tried.
    The trouble between the defendant, John Moore, and the prosecuting witness, Henry Cannon, commonly called Jerry Cannon, occurred at the home of the witness Bob Thomas, who lived in the neighborhood of Cannon and about six or seven miles from where the Moores then lived, while a musical or dance was being given at the Thomas residence, and while the house was crowded with persons attending such dance.
    It appears that the defendant, John Moore, and the prosecuting witness, Cannon, had had a previous difficulty, in which difficulty Cannon had called Moore a bowlegged s— of a b — , after which Moore instituted a prosecution against Cannon, and for which Cannon had been fined. This previous difficulty seems to have engendered considerable ill feeling • between Moore and Cannon, which culminated in the trouble at the dance at Thomas’ some two weeks later, out of which this prosecution arose.
    There is considerable conflict between the testimony of the state’s witnesses and that of the defendants. While several witnesses were called on behalf of the state in addition to the prosecuting witness, no one of them seems to have seen the actual beginning of this difficulty. On behalf of the defendant, it may be said that he is the only witness who pretends to have witnessed the beginning of this difficulty. The issues, therefore, on which the law of this case rests, were made out almost exclusively by the testimony, on the one hand, by the prosecuting witness, and, on the other hand, by that of this defendant. In view of the fact that this court is urged to reverse the judgment as to the defendant, John Moore, solely because of the giving of erroneous instructions, it becomes apparent that so much of the testimony of these two witnesses as discloses the state’s and defendant’s respective theories should be incorporated in this statement. For that purpose, therefore, the following excerpts from the testimony of these two witnesses are deemed sufficient:
    “Q. Now, standing where? A. Standing over there close to a bed and close to a. dresser, and Heavy McDaniel wrote my name down to dance the next set, and I paid for that number — done had me a partner, and before I got her, before I got her number to dance, why John Moore jumped out in the floor and daneed a little jig and said he was a fighting son of a bitch. Well, I never said nothing, nor he never said anything. He walked out of the door and got his brother Claude, and they came back in the house, and Claude had a rock in his hand and John had his knife open, standing by the door, and John says, ‘Must I hit him?’ and Claude reached him a rock and says, ‘Beef him.’ So he throwed the rock. I didn’t know who he was going to throw it at, wasn’t paying any attention to him much, and he throwed the rock and hit me. Q. Where did he hit you? A. Hit me right up there in the head. I just kind of sat back on the bed, and I got up, and we just met halfway of the room. I hooked my arm around his neck, and he throwed his arm over my back and commenced cutting me in the back. I throwed him on the bed, and when I throwed him on the bed he hollered for Claude then, and he was cutting me all the time with the knife. So Claude, he jumped on then, and went to beating me in the face, Claude did. So I just — I had an automatic just right under my coat, 32 Savage automatic, and I just pulled that out of my scabbard and shoved it down on him; thought that I had it right_on him, but I didn’t. The gun hung the first shot, never did shoot any more — never did shoot any more, so I got up off of the bed then, and we fought around and fought around there a long time over the house, around and around, and we finally ran over a bench and fell, and John Moore, he was on top, cutting me up with the knife on the arms and on the back, and Claude, he cut me right over the eye there, a five-inch gash between here and the ear. Q. I will ask you whether or not he cut your ear in two there? A. No, just cut a little place through my ear there. He ran to the door then, and some of them started in there. Ellis Keteher started in there, and Claude ran to the door and said: ‘Don’t any — any fellow come in here. I will shoot his brains out. I will shoot his brains out.’ So they just went on cutting on me, just cutting me up. They twisted the gun out of my hand, and then they jumped up and ran out of the door. I got up and hunted my hat up and walked on out through the other room and came back around from the back way, and they was out on the front yard, and so they was standing there talking to Bob Thomas, telling him they was fighting sons of bitches. Sometimes they would run and sometimes they wouldn’t run. They was fighting sons of bitches, and so I just went on out, got on my horse, and, bleeding right smart, went on out and got on my horse and rode off. Q. In how many places did they cut you, Henry, do you know? A. About 13 places; 13 places; 13 gashes. Q. Will you state what that is? A. This here is the coat I had on when we had the fight. Never has been changed a bit, just like it was, $37.50 suit; first time I had ever wore it.
    “By Mr. Vance: We desire to offer this coat in evidence, state’s Exhibit A. (There is here prof erred a blue serge coat, which has much blood on it, and many cuts in the back and arms thereof, which is identified as state’s Exhibit A.)
    “Q. Henry, tell the jury as nearly as you can the different places where you were cut? A. Well, I was cut once about over the eye here (indicating), cut twice on the arm (indicating), and several gashes in my back there (indicating), and I was told there was about 8 gashes in my back, but some of them — they were just kind of scratches. There is just one pretty bad scar, about that long (indicating). They reached 8 inches. The doctor said the gashes reached 8 inches right down across my back here (indicating) and once right over my eye there (indicating). Q. Had you made any demonstration toward John or Claude Moore that nigbt to offer to do them hurt or violence in any way! A. Had not offered to bother them either one of them. Wasn?t aiming to bother neither one of them. Q. Why did you have a gun with you? A. Well, I had this gun because John Moore said that he would get me — made his brags to me, says, ‘I will get you.’ I told him, ‘Teh,’ I says, 'you will get me.’ They have been in the habit of knocking fellows in the head with rocks and bottles all up there where they live.
    “By Mr. Keenan: Well, that—
    “A. Running their bluff around, so I didn’t want them to hurt me, and I just put the gun on.
    “By Mr. Vance: I believe you can take the witness.”
    On cross-examination:
    “Q. You say he had a knife in his hand when he came in, open? A. In his right hand; yes, sir. Q. And you say that Claude handed him a rock and said, 'Beef him,’ or something to that effect? A. ‘Beef him.’ Q. ‘Beef him?’ A. Yes, sir. Q. Did you see what he did with the knife? A. Kept the knife in his hand and throwed the rock and kept that knife in his hand too. Q. Did he throw the roek while he had the knife in his right hand? A. He throwed the rock — I believe he changed the knife in his left hand. Q. Now, are you sure he changed his knife from his right hand to his left hand? A. He throwed the rock with his right hand. Q. Where was the knife when he throwed the rock? A. In his left hand. Q. Now, you are sure he changed his knife from his right hand to his left hand? A. Yes, sir. Q. Then you had him around the neck and he was cutting you, was he? A. Cutting me right down across the back; yes, sir. Q. With his right hand? A. With his left hand. Q. With his left hand? A. I had him hooked around the neck with my right hand, and he was just kind of in behind me, and I just kind of — > backwards in under me, and I just gave him a slam and throwed him over the bed. Q. How did you get hold of your gun? You had him with your right hand? A. When we got on the bed, I. was- fighting, him, holding him there and fighting him. Q. Holding him with your right hand? A. Holding him with my left band, beating him with the right fist. Q. I thought you said you had him by— A. When we went to the bed, I turned him loose with my right hand and got him with the left hand. Q. Where was the gun? A. Right on the right side, in the scabbard. Q. When did you think— A. When he called for Claude — I was aiming to whip him in a fair fight right there on the bed, and when he called for Claude I just thought, well, they just aim to do me up, so I will just get them first. Q. So you thought you would get them first, and then you got your gun? A. Yes, sir. Q. Where did you shoot? A. Well, I thought I had it right onto John, right, in his stomach here (indicating), but I didn’t. He was down on the bed, and I just reached in and got the gun and kind of pointed it out towards him, and thought I had it in his stomach here (indicating), and the gun hung. Q. Hung on the second shot? A. First shot. Q. Didn’t shoot at all? A. Shot once. Q. Next shot, it hung? A. Yes, sir; shot once, and reversed back, and hung. Q. Did you hit him with the gun? A. No, sir; I didn’t hit him with the gun until after we got up off the bed. Q. You did strike him with the gun then? A. Yes, sir; I hit him right up beside the head with it. Q. Didn’t you hit him with the gun before you went down on the bed? A. No, sir; I didn’t. Q. Didn’t you have that gun in your hand when he threw that rock? A. I didn’t. Q. Have your hand on your gun? A. I did not.
    “John Moore.
    “Q. What did he say to you? A. He came out of the gate— Well, you mean the first fuss? Q. Yes. A. He came out to the gate when me and the girl was passing there and invited me down to fight, and I asked him what about, and he said I had been lying on him, and I asked him what I had told, and he would not tell me. I told this Fowler girl to ride on out to the road and I would try to get him to tell me what she had told him, what he had heard; and she would not ride on, and. said if I wanted to fight him she would stay there till it was over with. We rode off then, and after I got started off a little piece he said, ‘You God damned, bowlegged son of a bitch, you cannot lie on me!’ I stopped my horse and turned him about halfway around* and I says, ‘You big son of a bitch, you, I will see you again about that.’ We went on then. Q. When'did you see him again after that? A. At Bob Thomas’ at a dance. Q. At Bob Thomas’? ' A. Yes, sir. Q. Was he there when you went there? A. I don’t think he was. I never saw him until after I had went out of the room they was dancing in into the other room. I had been in that room before I went in there where we was dancing. Q. What was he doing? A. He was standing there looking around and seen me and made a step or two kinda towards me, and I went on out doors. He made as if he was going to jump on me, had his right hand in his right pocket.. Q. What did you do? A. I went on out doors thinking I would go home. After that I decided I would get me a rock and come back in and maybe he would not bother me any more. When I went back in, he saw me and had his hat kinda pulled down and was looking out from under the brim at me, and he came walking towards me with his gun just about half out of his right coat pocket as if he was going to hit me or shoot me, and when I seen that gun I hit him with a rock. Q. Then what happened? A. Well, we went together. He hit me. with the gun right on the top of the head while I was getting my knife out. Then we fell on the bed, and the gun went off while we was on the bed. Q. Well, when did you get your knife out ? A. While we was on the floor before we fell on the bed. Q. What kind of a knife was that? A. A little single-bladed knife. Q. What became of it? A. I lost it, that night. Q. Then did you see it after that night? A. No, sir; he clinched me around the neck with his left arm and was hitting at me with the gun, and I went to cutting at him under this way (indicating), coming under that way after we got up off the bed. Q. Did you go there with the intention of fighting him? A. No, sir; I did not. Q. How did you come to go to the dance ? A. Well, I was in Hulburt, and Charley Freeman was there, and told us about the dance and wanted us to go, and me and my brother went with him. Q. What became of the gun? A. My brother brought it up here and turned it over to you, he said; I don’t know. I was not here. Q. Were you here at the time of the preliminary? A. Yes, sir. Q. Do you know where the gun was at that time, don’t you? A. You had it, you said. I don’t believe that I saw it that I remember. Q. How many times did he hit you with the gun? A. Hit me one time. Q. Where did you go after the trouble? A. We went home. Q. Where did you go then? A. We started to Missouri. Q. What made you go to Missouri? A. I did not know what might happen, and I wanted to get away. I was kinda seared. Q. Kinda scared and went away. When did you come back? A. Came back in November, I think. Q. What did you do in Missouri? A. Made a crop. Q. Made a crop. Did you make any demonstration before Henry Cannon before the time that you claim he seemed to be coming toward you? A. No, sir. Q. You heard some witness testify that you danced a jig in there? A. Yes, sir; I did. Q. Did you make any demonstration of that kind to excite his attention. A. No, sir; I did not.

      ‘ ‘ Cross-examination:
    “Q. Your feeling toward Cannon was pretty bitter, wasn’t it, when you went there? A. Well, not so bad; I didn’t like him a bit after he done like he did. I didn’t aim to have any trouble with him unless he started it. Q. You were willing to fight him just any time he wanted to fight? A. I don’t know; I was not that day. Q. How? A. I didn’t want to fight him that first time. Q. I mean after that first day down there after he had give you this cursing you are talking about. You were willing to fight him then just any time he wanted to fight? A. I could not say. Q. How? A. I don’t know whether I was or not. Q. Well, you know how you were feeling toward him; that is what the jury wants to know, how you were feeling towards Cannon after he gave you that cursing down there. A. I didn’t like him. Q. Anybody invite you over there? A. Well, they never that night, only what Charley Freeman asked us to go with him. Q. You had been in there in the side room dancing, had you? A. No, sir; I had been in there watching them dance. Q. You had not danced any? A. No, sir. Q. When did you first find out that Cannon was there? A. After I went in from the side room into the front room, after they started to dance. Q. What was it he did? A. Why he had his hand in his right coat pocket and commenced walking over towards me as though he made to jump on me and hit me. Q. How far away from him were you? A. I was not very far; about as far as to that white hat (indicating). Q. You went out there and got you a rock, did you not? A. I got a rock. Q. Where was Claude at that time? A. I don’t know where he was; in the house, I suppose, somewhere. Q. Then you went .back? A. Yes, sir. Q. Where did you get your rock? A. Out there in the yard. Q. How far away from the house? A. Not very far. Q. How many rocks did you get? A. Got one. Q. Pretty good one? A. Yes, pretty good rock. Q. You mean you just went out of the' room once from the time you first saw him until the time you had the fight? A. Yes, sir; the one time. Q. Bent on having a fight with him when you found out he was there? A. I was if he jumped on me or acted like he was going to raise any trouble, after I got my rock and went back in there I figured on if I had to I was going to do the best I could. Q. You knew he had paid a fine for cursing you before? A. I did not know he had; I heard something about it; I did not know how true it was. Q. You knew you filed a complaint against him? A. I told you I did not care whether you made him pay a fine or not. Q. You also said he wasn’t going to do you that way any more? A. Yes, sir; I did. I told him I didn’t want him to do that way any more. Q, You know as a matter of fact you did file a com,plaint against him, did not you? A. Yes, didn’t I tell you I did not care what you done about it? Q. Yes; you talked about like you would just as soon fight with him as law it out with him; I admit that. The truth is when you found out he was there you were going to have a fight with him? A. I know if he jumped on me we would; I wasn’t going to bother him unless he bothered me. Q. You went in there and hit him with this rock? A. Yes, I hit him with the rock. Q. And you went to him? A. We both went to one another. Q. Where was this gun then? A. He had it in his hand. Q. Did he put it back in his pocket? A. He had it in his hand with about half of the barrel in his right coat pocket. When I seen that, I hit him with the rock, and when we went together, he hit me with the gun. Then I got my knife. About that time we fell on the bed. Q. He just hit you once before you could get your knife? A. Just hit me one lick. Q. You never did holler for Claude? A. No, sir. Q. Claude never did come to you? A. I guess he did; he was there when I fell over the bench in the floor; had his arm— Q. What made you quit fighting? A. Because I seen Claude had the gun. Q. Did not some fellow tell you to quit? A. Thompson Ticker told me to quit; I had done quit when he said that. Q. What 'did Jerry do when you quit? A. He .was laying there hollowing. Q. You just cut him any place you could cut him, did not you? A. I did before he fell over the bench. I never hit him another lick after we fell over the bench. I never hit him another lick after we fell over the bench. After Claude had the gun, I did not hit him another lick. Q. Did Claude tell those fellows, ‘The first son of a bitch stuck his head in there he would shoot it off’? A. I don’t know whether he did or not. Q. You got out and went home and stayed about 20 minutes? A. Something like that. Q. Did you go to Missouri on a visit, too? A. No, sir. Q. What did you go for? A. I went because I was kinda scared. Q. Afraid of Cannon or afraid of the law? A. Well, afraid of both. Q. You never saw the day you was afraid of Cannon, did you? A. I did not want to fight him that day we came by there from the pasture. Q. Was you afraid to? A. I was kinda afraid to when I thought about what you told me. Q. Never been afraid to fight him since then? A. I was not afraid to that night. Q. What was it I told you? A. Told me if anybody raised a racket with me to go off and leave them and you would see into it. Q. What was the occasion of my telling you that? A. Because I was up there and made him pay a fine, I guess. I had heard about Jerry Cannon running his brother off from home with the shotgun. Q. That did not make you afraid of him that night down there at the dance? A. I just figured I would just as leave fight him that night; I wasn’t very much afraid of him. Q. Just make that statement again. A. I said I had heard about him running his brother off from home with the shotgun. Q. That last statement you made, you figured out some way— A. I just figured out I would just as leave fight him that night as any other time; I would have to some time, I guessed.”
    Bruce L. Keenan, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating facts as above). This prosecution is based on that portion of section 1756, Compiled Statutes 1921, which reads as follows:

“Any person who intentionally and wrongfully * * * commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, * * # is punishable by imprisonment in the penitentiary not exceeding.ten years.”

To sustain a charge under such statute it is not necessary to prove the elements of murder, but the charge is sustained if the defendant would have been guilty of any grade of felonious homicide had death ensued. Such is the construction given by this court to a statute similar in terms. Tyner v. U. S., 2 Okla. Cr. 689, 103 Pac. 1057.

The foregoing observation is made because of comments contained in the brief of counsel for defendant against certain of the trial court’s instructions which lead this court to believe that it was the contention of defendant’s counsel that, before a conviction under the foregoing statute should be allowed to stand, the evidence against the defendant should be such as to have warranted his conviction of murder had death resulted. We do not so understand the statute.

The instructions given and complained of are as follows:

“In this ease, the defendant, John Moore, as his plea and for his defense, says that the striking, assaulting, cutting, bruising, and beating of the prosecuting witness was justifiable, and that in doing so he was acting in his own necessary self-defense. The law gives to every person the right to fight in self-defense, to protect himself from the unlawful attack of his adversary, and where a person is unlawfully attacked he is not required to retreat, but has a right to stand his ground and use whatever force is necessary to repel the attack, in order to prevent great bodily injury to himself. The law of self-defense was given to the citizen for his protection, but it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty armed with a deadly or dangerous weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent his peril may become.
“You are instructed that if you find from the evidence in this case that the defendant left the room or house and armed himself with a dangerous and deadly weapon, to wit, with rock or knife, or with rocks and knives, and that he returned to the place where the prosecuting witness was, and voluntarily entered into a fight with the prosecuting witness, and with such deadly weapon or weapons did strike and beat and bruise and cut the prosecuting witness, he would be guilty, and under such circumstances cannot plead the right of self-defense, unless it was shown that before the assaulting, beating, cutting, and bruising of the prosecuting witness the defendant had refused any further combat and had, in good faith, withdrawn, and sought to avoid further conflict; and that the cutting, bruising, striking, and beating was then done in necessary self-defense.
“You are instructed that if you find from the evidence in this case that the defendant left the room or house where the combat had already been begun, and then armed himself with a dangerous and deadly weapon, to wit, with a rock or a knife, or with a rock and knife, and that he returned to the plaee where the prosecuting witness was, and voluntarily entered into a fight with the prosecuting witness, and with such deadly weapon or weapons he struck, beat, bruised, and cut the prosecuting witness, he would be guilty under such circumstances and cannot plead the right of self-defense; unless it was shown that before the assaulting, cutting, beating, and bruising of the prosecuting witness the defendant was not at fault in any further combat, and only used such force as was necessary in such combat with the prosecuting witness.”

It is urged that the first of the foregoing instructions is erroneous for the following reasons :

(1) “It does not tell the jury clearly that if they are satisfied from the evidence beyond a reasonable doubt that defendant sought, provoked, or occasioned the difficulty with the prosecuting witness, or they so find that he was the aggressor and voluntarily entered into the difficulty armed with a deadly or dangerous weapon with the intention of killing him or inflicting serious bodily harm upon him, that only then would he be deprived of the right of self-defense.”
(2) “It authorizes the jury to assume that the defendant was the aggressor, or that he voluntarily entered into the difficulty armed, and that he could not plead self-defense unless it was shown (by the defendant) that before assaulting, beating, cutting, and bruising the prosecuting witness the defendant had refused, any further combat and had in good faith' withdrawn and sought to avoid further . conflict. In other words, it ‘tells the jury.too plainly that the defendant cannot plead self-defense because he is one who is the aggressor.’ ”

The theory of the state in this case, and there is evidence to support it, is that the defendant, John Moore, was the aggressor throughput the entire difficulty, and that everything done by the prosecuting witness, Cannon, was done in his appárently necessary self-defense.

"We believe the testimony of the defendant, John Moore, does not entitle'him to an acquittal. At most, his testimony shows a perfect willingness on his part to enter into a “mutual combat” with Cannon, and it is immaterial whether Moore’s intention was, at the time he entered such combat, to, with premeditated design, kill the said Cannon, or not, provided in the course of the conflict, whicli he had reason- ■ able cause to believe would ensue, he assaulted said Cannon with such “means or force likely to produce death.” In the latter evént the design to kill is presumed and a conviction is justified under the statute.

Under the theory of the state that defendant was the aggressor and provoked the difficulty, the instruction was authorized, and under defendant’s testimony it cannot be held to be prejudicially erroneous in this case because the intent with which he entered the difficulty becomes immaterial under the statute, as in either event had death resulted he would have been guilty of murder or manslaughter.

We do not construe section 2822, Compiled Statutes, 1921, to authorize this court to reverse judgments of conviction because of minor errors in the court’s charge where the testimony of the defendant is such as in this case.

Further, under the following decisions, where the the law of “mutual combat ’’ was presented by the evidence’ the law of necessity to withdraw in good faith from the conflict is stated, in language at least as forceful as that employed by the trial court in the instant case: Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937; Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586; Johns v. State, 8 Okla. Cr. 585, 129 Pac. 451; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915.

The latter of the foregoing instructions complained of was given in the form requested by defendant’s counsel, and it is here contended that the two instructions are misleading, confusing, contradictory, and prejudicially erroneous when considered together, and that the instructions when considered as a whole do not cure such apparent contradiction, in the charge.

However true this may be, the conflict or contradiction arose because of defendant’s requested charge. Without it there is no'conflict, no contradictions in the general charge. This court has repeatedly held. that a defendant will not be heard to complain of an error invited by him in the trial or occasioned by his own conduct or at his request. Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564; Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

And further it has been held that where a conflicting instruction is given at the request of the defendant, the error occasioned is harmless, where the other instructions are sufficient. People v. Hower, 151 Cal. 638, 91 Pac. 507.

By what has been said in this opinion the court wants to be understood not to condone, or in any particular approve of, the conduct and demeanor of the prosecuting witness on the occasion of this difficulty. He was not entirely blameless, but that fact cannot operate to justify or excuse this defendant who entered willingly and voluntarily into a conflict, with one whom he had every reason to believe was armed, after having first armed himself with a heavy boulder and also a knife, both of which he used with telling effect upon his adversary. Defendant knew that such a conflict could end in none but serious results to one or the other of them, and himself stated, “I just figured I would just as leave fight him that night as any other time.”

The judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


text:
    GEORGE KILGORE v. STATE.
    No. A-4152.
    Opinion Filed Oct. 17, 1923.
    (219 Pac. 160.)
    (Syllabus.)
    1. Evidence — False Pratenses — Proof of Nonexistence of Funds or Credit with Bank Essential to Conviction for Giving "False and Bogus Check” — Hearsay Evidence Insufficient. In a prosecution for giving a “false and bogus’’ bank check with intent to defraud under chapter 72, Session Laws 1913 (section 2146, Compiled Statutes 1921), it is essential for the state, as part of the corpus delicti of the crime, to prove the "false and bogus’’ character of the check; that is the nonexistence of funds or credit with the bank by the drawer of the check. Since the Legislature made proof of such negative proposition an essential element of the crime, a conviction is not authorized by proof of such element' by hearsay testimony.
    2. Trial — False Pretenses — Right to Affirmative Instruction Covering Defense. The defendant is entitled to an affirmative instruction covering the defense interposed where such defense relates to a material element of the crime, and there is evidence to support it. For instructions given over defendant’s objection held to be too limited in scope to afford such affirmative submission see body of opinion.
    Appeal from Superior Court, Okmulgee County, H. R. Christopher, Judge.
    George Kilgore was convicted of passing a bogus check, and he appeals.
    Reversed and remanded.
    L. A. Wallace, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the superior court of Okmulgee county from a judgment and sentence rendered on the 8th day of July, 1921, based upon the verdict of a jury finding the defendant guilty of the crime of obtaining money by means of a certain false and bogus check, and assessing his punishment at three years and six months in the state penitentiary. The information charges, in substance, that on November 29, 1920, the defendant made, executed, and delivered to the prosecuting witness, Jim Nance, a certain check in writing (setting out said check), representing that the said check would be honored and paid •by the said First National Bank of Beggs, Okla., when the ■defendant well knew that at the time he made, executed, and delivered said check it would not be honored, but defendant made, executed, and'delivered the same to Jim-Nance, for which the said Jim Nance paid the said defendant $15, the amount named in said check, for the -purpose of cheating and defrauding the said Jim Nance, of the value of said $15, and appropriating the same to his own use and benefit.

The evidence on the part of the state proved the execution of such -check by the- defendant, the delivery of the same to Jim Nance, and the obtaining by the defendant of said Nance the sum of $15, and, further, that on presentation the said cheek was dishonored by the First National Bank of Beggs, Okla., with the notation thereon “no funds,” and there is evidence further to the effect that on the same day another check was given by the defendant to another person in the city of Okmulgee, Okla., on the .same bank, in the same amount, and that this check was also dishonored and went to protest when presented, and was returned' “no funds.” -

The defendant admitted the execution and the delivery of the check to ■ the prosecuting witness, Jim Nance, and the obtaining of the $15 thereon. His defense was, however, that hé and his brother, Sam Kilgore, were partners in the -restaurant business in the town of Beggs, Oklá.,-and that they kept their money on deposit in the First National Bank of Beggs, Okla., in the name óf Sam Kilgore, and that prior to the giving of the cheek here in controversy arrangement had been made with the First National Bank of Beggs, Okla., to , honor cheeks -drawn against said account in the name of this defendant, George Kilgore, and that the said bank had in the past so honored the checks of this defendant against said account, and that the defendant gave the check here in question in good faith, believing that it would be so honored and paid by the bank when presented, and that there was no intent on the part of defendant at the time he gave said check to the prosecuting witness, Jim' Nance, and procured $15 thereon, to defraud the said Nance of such money.

The defendant testified that he was a resident of Beggs, Okla., and that on the day- in question he had taken- the morning train from Beggs, Okla., to Okmulgee, Okla-., and that before leaving the town of Beggs he, on that morning, deposited to the account in the name of Sam Kilgore the sum of $100 in the First National' Bank at Beggs. Defendant testified also that he took some money with him to the city of Okmulgee, but that he ran out of funds,- and procured these additional sums of money for the. purpose of having “a good time” while he was at the city of Okmulgee. Defendant also introduced the evidence of Joseph D. Moore, assistant cashier of the First National Bank at Beggs, Okla., who testified that he was acquainted with the defendant, George Kilgore,' and that defendant’s brother, Sam Kilgore, transacted business with the First National Bank at Beggs, and had an account there in the name of Sam Kilgore, and that the bank had instructions to pay any checks signed by George Kilgore on the Sam Kilgore account if he had the money, and if not to turn them down; that on the 29th day of November, 1920, there was a balance of $9.43 to the credit of the Sam Kilgore account, and that on said date there was a deposit of $100 made, but witness did not know who made the deposit; that the cheek,to Nance reached the bank December 4, 1920, and on that date the Sam Kilgore account had a balance of $5.43.

Among other instructions given, the trial court gave the following:

“No. 4. You are instructed that under the law of this state any person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by use of any trick, or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called the ‘confidence game,’ or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding seven years.
“No. 5. You are therefore instructed that, if you believe and find from the evidence in this case, beyond a reasonable doubt, that the defendant, George Kilgore, at and in the county of Okmulgee, state of Oklahoma, on or about the 29th day of November, 1920, did unlawfully, willfully, feloniously, and fraudulently, with intent to cheat and defraud, made, executed, and delivered to one Jim Nance, his certain check, representing to the said Jim Nance that said check would be honored and paid by the First National Bank of Beggs, Okla., the bank on which said check was drawn; and if you further believe and find beyond a reasonable doubt that the said George Kilgore received of the said Jim Nance the sum of $15 good and lawful money of the United States, and of the value of $15, and that the said George Kilgore then and there well knew at the time he delivered said check and obtained the money thereon that said cheek was false and bogus, and would not be honored by said bank, then, in that event, the defendant is guilty, as charged in the information, and you should so find. On the other hand, after a careful consideration of the whole case, if you entertain a reasonable doubt as to the defendant’s guilt, then the law says you must acquit him.
“No. 6. The court instructs the jury that, if you believe and find from the evidence in this case that the defendant, George Kilgore, at the time of making and delivering said check, had funds or a credit with the First National Bank of Beggs, and that he gave said check in good faith, believing that same would be honored and paid by said bank when presented, then your verdict should be one finding the defendant not guilty.
“No. 7. The court instructs the jury that the legal construction of the term ‘credit’ is that it must represent money, or some other tangible substance of equal value; and you are further instructed, before you can find from the evidence that the defendant, George Kilgore, at the time he gave the check to the witness, Jim Nance, had credit at the First National Bank of Beggs, you must find that the defendant, George Kilgore, at the time, had property of value in the possession and on deposit at the First National Bank at Beggs out of which the bank could, and would pay said cheek when delivered to them by the holder thereof.”

The errors assigned are as follows:

“First. The court erred in overruling the motion of plaintiff in error for a directed verdict of not guilty.
“Second. The court erred in admitting incompetent, irrelevant, and immaterial evidence on the part of the state and over the objection of plaintiff in error.
“Third. The court erred in refusing and ruling out competent and legal evidence offered by plaintiff in error.
“Fourth. The court erred in giving instruction No. 7 over the objection of plaintiff in error.
“Fifth. The court erred in overruling the motion of plaintiff in error for a new trial.”

When the state rested its ease in chief the defendant requested the court to direct a verdict of not guilty, which motion is as follows:

“Comes now the defendant and demurs to the evidence offered and introduced by the state, for the reason it is not sufficient to sustain a conviction, and upon the ground there has been no proof that the check was dishonored for want of funds' or lack of credit, and the defendant moves the court to request the jury to return a verdict of not guilty.
“The Court: Demurrer overruled.
“Mr. Wallace: Allow the defendant an exception.”

The position of counsel for defendant is that the motion should have been sustained because the state wholly failed to prove the false and bogus character of the check as alleged in the information. Thé burden was upon the state to prove beyond a reasonable doubt that the. defendant, at the time of making and delivering the cheek, gave it with knowledge of the fact that it-was “false and bogus,” and that it would not be paid when presented. The staté did not produce ás a, witness' any officer or' employee of the First National Bank of Beggs do prove the status of, the account on the date the check was given. The only evidence offered by the prosecution on this point was that the check was deposited for collection with the Citizens’ National Bank of Okmulgee, and forwarded by it through the regular' channels to the bank on which it was drawn, and was later returned unpaid, with.a notation on the check “No account,” but no positive proof as to which bank made the notation.

Counsel for plaintiff-in error contends that this evidence was not sufficient to make out a case under the provisions of chapter 72, Session Laws' of 1913 (section 2146, Compiled Statutes 1921). That part of the . act applicable to the case at bar reads as follows:

Section Í. „“ Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or váluable thing, * # # by means or by use of any false or bogus check * * * shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding seven .years. ”

The phrase “by means or by use of any false or bogus, check,” is descriptive of the offense, and is an essential element of the crime for the state to allege .and prove. This position is supported by the comparatively recent case of Douglas v. State, 15 Okla. Cr. 648, 179 Pac. 947. The effect of the decision is that the state must allege and prove the false and bogus character of the check, and that it was well known to the defendant at the time he used the same for a.fraudulent purpose. This is in substance the allegation of the information in the present case. The identical statute here under consideration was. construed in Williams v. Territory, 13 Ariz. 27, 108 Pac. 243, 27 L. R. A. (N. S.) 1032, wherein it was held:

“That a cheek given by a person upon a bank in which he has no funds, and which he has no reason to suppose will be' honored, is bogus within the statute.”

•This case was cited with approval in the Douglas Case, supra.

There was no testimony on the part of any one. connected with the First National Bank of Beggs that the words “no account” were,written on said check by. any person connected with that bank who had personal knowledge of that fact, if it were a fact. The only proof'on the part of the state that such words were, written on such check was by an officer of the forwarding bank, who testified that it was not the custom of the forwarding bank to make such in-dorsement, and that it was the rule of .the bank on which the check was drawn to • make it. Such proof amounted merely to hearsay evidence. The statute makes the giving of a “false and bogus cheek” with intent to defraud the very essence of the crime, and it is essential in order to prove the “false and bogus” character of the check for the state to prove as a part of the corpus delicti of the crime the nonexistence of funds or credit with the bank by the drawer of the check. Since the Legislature has seen fit to make proof of such negative proposition an essential element of the crime, a conviction is not authorized by proof of such element on hearsay evidence. Realizing the practical difficulties of making such proof the Legislature has sinee by chapter 33, Session Laws of 1923, p. 47, amended the act by defining the term “false and bogus check,” and making refusal of payment of a check by the drawee prima facie evidence of intent to defraud and the knowledge of insufficient funds in or credit with such bank if the drawer shall not have paid drawee thereof the amount thereon with protest fees within five days after the same is presented for payment. Under the amended statute the proof adduced by the state in this case would have made out a prima facie case if the drawer had not paid the drawee the amount of the cheek within five days after presentment. Thus the Legislature by the amendment has obviated the practical difficulties of directly proving the nonexistence of funds or credit encountered under the statutes here under consideration.

We think, therefore, that the motion for a directed verdict should have been sustained, as the proof of the essential elements of the bogus character of this check on the part of the state was merely hearsay, and the proof by the defendant's witness tends to support the defense interposed that he had credit with the bank and believed the check would be honored by the bank upon presentation to it.

Instruction No. 7, defining the term “credit,” we think, is too limited. That word should receive a liberal construetion in favor of the defendant where the statute defines a crime, and should be considered to mean that the Legislative intent was such as is contained in the amended act, chapter 33, supra, where the term is defined not only to mean funds on deposit, but “an arrangement or understanding with the bank or depository for the payment of such check, draft, or order.” If the defendant in good faith believed that he had a general arrangement and understanding with the bank to pay checks drawn by him against the account in the name of his brother, Sam Kilgore, and that previous to the giving of such check repeated payments had been made of such cheeks against such account, the defendant was entitled to an instruction more clearly and broadly defining the term “credit” than the one given by the trial court in instruction No. 7, supra; otherwise the intent to defraud would be presumed if defendant had no money or its equivalent on deposit at the time such check was presented for payment. There was ample evidence in the record to support the contention of defendant’s counsel that such an arrangement and understanding was in existence at the time this check was given and presented.

Instructions No. 6 and No. 7 were evidently intended to afford the defendant an affirmative instruction covering the defense interposed, and it has been repeatedly held that the defendant is entitled to have an affirmative submission of his defense if there is evidence tending to support the same. Crittenden v. State, 13 Okla. Cr. 351, 164 Pac. 675, and authorities cited. Instructions No. 6 and No. 7, construed together, do not afford the defendant the benefit of an affirmative instruction applicable to his testimony and that of his witness based upon the hypothesis that it is true. Instructions No. 6 and No. 7, construed together, are too limited in scope, and, considered with the fact that the state failed to prove by competent evidence the false and bogus character of the check, we think it is apparent that defendant did not have a fair and impartial trial according to the law that existed at the time of the commission of the offense, and for such reasons the cause is reversed and remanded for further proceedings not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.