text:
    J. H. BECK v. STATE.
    No. A-4225.
    Opinion Filed Feb. 21, 1925.
    (233 Pac. 495.)
    (Syllabus.)
    Parent anti Child — Refusal of Parent to Provide Medical Treatment for Child Suffering from Lockjaw Held Criminal Offense. Where a boy 11 years of age has for hours suffered intense pain from lockjaw, a parent in charge is guilty of a violation of section 1855, Comp. Stat. 1921, in failing or refusing to provide medical treatment for the relief or cure of the child so afflicted.
    Appeal from County Court, Grady County; J. E. Shelton, Judge.
    J. H. Beck was convicted of failing to furnish medical aid to his son, and he appeals.
    Modified and affirmed.
    Bond, Melton & Melton, for plaintiff in error.

      The Attorney General and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

J. H. Beck, plaintiff in error, in this opinion referred to as the defendant, was by verdict of a jury found guilty of omitting to furnish medical aid to his child, Johnnie Beck, without lawful excuse. His punishment was assessed at confinement in the county jail for a period of 6 months and to pay a fine of $50 and costs.

The record in this case is more remarkablei for what it does not contain than for what it really does show. It seems that an 11 year old son of the defendant had for some hours been ill from tetanus or lockjaw, from which he was suffering intense pain and rigidity of the muscles which caused his head and other portions of his body to be drawn in an unnatural condition. Some neighbors, together with meimbers of defendant’s family at his home where the boy lay ill, sought to relieve the child’s suffering by prayer and appeals for divine aid; other neighbors intervened and advised the calling of a physician, which was at first refused and the suggestion repulsed. Finally, under pressure, consent was given by the defendant, to the administering of medical treatment. Accordingly a serum treatment was administered by two physicians, but the boy expired six or eight hours later. In the opinion of these physicians the treatment was administered too late. From their testimony the inference may be drawn that, if the treatment had been administered earlier, the boy’s life might have been saved.

There were no witnesses called or evidence introduced at the trial on behalf of the defendant.

The record does not disclose that the defendant sought to justify under his constitutional right to the free exercise of his religious opinions and mode of worship. Although the question is therefore not directly at issue-here, this court will adhere to the rule announced in Owen v. State, 6 Okla. Cr. 110, 116 P. 345, 36 L. R. A. (N. S.) 633, Ann. Cas. 1913B, 1218; McMasters v. State, 21 Okla. Cr. 318, 207 P. 566, 29 A. L. R. 292.

This prosecution is based upon the provisions of section 1855, Comp. Stat. 1921, as follows:

“Any parent of any child who wilfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such child is guilty of a misdemeanor.”

The provisions of this section should be reasonably construed. A fair amount of discretion is vested in parents charged with the duty of maintaining and bringing up infant children, and this statute will not be construed to mean that a physician must be called for every trifling complaint with which a child might be afflicted, such as may be overcome by ordinary household nursing by members of the family. But where, as in this case, a child is suffering intense pain, and where the muscles of the body have become drawn and rigid, it would seem that an ordinarily kind or prudent parent, solicitous for the welfare of his child and anxious to promote its recovery, would call in medical aid. A humane desire to give at least temporary relief from suffering should alone be sufficient to impel a parent to call a physician where his child is in intense pain during a prolonged convulsion. Under such circumstances it would seem that a parent is guilty of a violation of the provisions of this statute where he fails to furnish medical attendance.

To sustain a conviction in a case of this character the evidence should show a wilful neglect of duty under all the circumstances. The defendant claims, on appeal, that the evidence does not show that he was neglecting a plain duty imposed by law; that the evidence does not show that he knew the gravity of the malady, but does show that, so soon as he was apprised of its gravity and probable fatal results, he consented to the administering of the serum; and that, if he made a mistake in deferring action until it was too late, it was an honest mistake, for which he should not be held criminally liable.

These were questions primarily for the jury. While the testimony in this case as to the length of time this boy had suffered before the serum was administered and the attitude of the defendant in neglecting and refusing to call a physician or in discouraging medical treatment is not as definite as it might be, the weight of the testimony was for the jury. From the testimony it evidently appeared to the jury, and it appears to us, that the defendant was grossly remiss in his duty towards his child in not calling a physician earlier, and that the evidence as a whole is sufficient to support the verdict.

Considering the fact that the defendant seems to have been a member of a religious sect which believes in faith or divine healing, and that he may have been influenced by other members of the sect there assembled, we believe that the punishment was excessive, and should be modified by expunging the jail sentence. It is therefore ordered that the judgment be and the same is hereby modified to the payment of a fine of $50 and costs of this action, without imprisonment, and the judgment as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    ELMER CLARK v. STATE.
    No. A-4630.
    Opinion Filed Jan. 17, 1925.
    On Rehearing, Feb. 21, 1925.
    (232 Pac. 953.)
    (Syllabus.)
    Appeal and Error — Error Must Affirmatively Appear1 from Record. Error is not presumed, but must affirmatively appear from tbe record. Every presumption favors tbe regularity of tbe proceedings bad upon the trial, and, in order to procure a reversal, a plaintiff in error must affirmatively show error, which deprived him of some substantial right.
    Appeal from'County Court, Pawnee County; Charles Yerne, Judge.
    Elmer Clark was convicted of a misdemeanor, and he appeals.
    Affirmed.
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty, Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted of the violation of Section 2287, Comp. Stats. 1921, which section reiads as follows:

“Any person who willfully and wrongfully commits any act which * * * openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor.”

Upon the trial the plaintiff in error was convicted and sentenced to serve a term of 60 days in jail and to pay a fine of $100.

Numerous errors are assigned in the petition in error and brief of the plaintiff in error, one of which challenges the sufficiency of the information. The information in this case is not a model pleading, but, under the previous holding of this court in the case of Fessler v. State, 12 Okla. Cr. 579, 160 P. 1129, it is, we think, sufficient.

Again it is urged that the evidence is not sufficient to sustain the verdict of the jury. No good purpose would be served by setting out the evidence, but we have examined the same with care and believe that it amply sup-

It is also assigned as error that the judge who tried the case did not pass on the motion for new trial, but, having died, such motion was passed on by his successor in office. Counsel for plaintiff in error state as their opinion that such fact constitutes reversible error, but assign no reason nor cite any authority therefor; and such assignment might properly be considered as waived. However, precedents are not wanting for such procedure. 20 R. C. L. p. 302; note 12, 29 Cyc. 923, note 25.

It is also contended that the trial jury was not selected in the manner required by law. The record is not complete, and we cannot say that the jury was not duly and properly selected.

The most serious question raised is, that upon arraignment, the plaintiff in error was not given 24 hours to plead, as provided in section. 2595, Compiled Stat. 1921. The record upon this point is in such shape that we are not able to gather clearly just what proceedings were had. On page 19 appears a statement from the trial court to the effect that the defendant, on the 27th of May, appeared in court in person and pleaded not guilty to the “complaint” and demanded a jury, which statement is un-contradicted. A like statement appears at page 26 of the record; and at the time of the trial on the 29th of May, as shown by the record at page 21, a demurrer was presented and overruled. Again at page 10 in the record appears the recital that both the state and the defendant announced ready for trial. In this condition of the record we believe that if there was any eirror in the proceedings it was cured by thei filing and ruling ón the demurrer and by the announcement of the defendant that hei was ready for trial. Schlumbohn v. State, 5 Okla. Cr. 36, 113 P. 235; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685; Johnson v. State, 5 Okla. Cr. 1, 112 P. 760.

It is also assigned as error the giving of instruction No. 3 as follows:

“To this information the defendants stand mute and refuse to plead, and the court, under the law, enters for them a plea of not guilty, which has the same force and effect as if the plea were entered by them in their own behalf.”

This -instruction should not have been given, but, whether or not the defendant stood mute -or pleaded not guilty, the ordinary charge as on a plea of not guilty should have been given. But we think no material -injury could result from the giving of the charge quoted.

Under the well-settled rule of this court that error is not presumed, but must be made to affirmatively appear from the record, there is nothing shown in this case which would warrant a reversal, and, upon the incomplete record before us, the case will be affirmed.

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

On Rehearing.

The plaintiff in error having filed a petition for rehearing, the same was orally argued to the court, and it was urged that on the record the punishment assessed was excessive. It was thereupon confessed by the Attorney General that the punishment was in fact excessive, and the judgment in that particular should be modified. Thereupon the judgment is modified, from a fine of $100 and costs and 60 days in the county jail, to the payment of a fine of $100 and all costs, and, as so modified, thé judgment is affirmed.

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


author: BESSEY, P. J.

text:
    GEORGE LIVINGSTON v. STATE.
    No. A-4658.
    Opinion Filed Feb. 23, 1925.
    (233 Pac. 235.)
    (Syllabus.)
    Evidence — Essentials of Corroboration of Accomplice — Robbery. Where a witness for tbe state admits that be participated in tbe robbery of a bank, and implicates tbe defendant, bis testimony is not sufficiently corroborated by merely showing that tbe defendant was near the scene of the robbery. Tbe corroboration of an accomplice must show more than tbe mere commission of tbe offense. It must show some fact or circumstance implicating the accused in tbe perpetration of tbe crime.
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    George Livingston was convicted of robbery, and he appeals.
    Reversed and remanded.
    Tracy & Minton, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

George Livingston, plaintiff in error, here denominated the defendant, was convicted of conjoint robbery, with his punishment fixed by the jury at confinement in the penitentiary for a term of 10 years.

Eliminating many of the details of the preparations leading up to this robbery, the evidence on the part of the state shows that on August 22, 1922, Walter Woods and Doyce Bohannon, aged respectively 17 and 16 years, at about 12:20 or 12:30 o’clock, entered the Beckham County National Bank at Sayre through a rear door, with their faces partly covered with cloth masks, and, by means of threats, subdued the employes in charge, and forcibly took and carried away approximately $2,000 in currency and coin. These boys then, without being recognized by any one, made their escape through the rear entrance of the bank into some weeds and a plum thicket, and werei not seen for some time thereafter.

For some days the identity of all-the persons implicated in this bank robbery remained a profound mystery. The 17-year old boy, Walter Woods, lived in Sayre with his mother, who had been separated from her husband for a number of years. The mother, while straightening Walter’s bed a few days after the robbery, found hidden under thei mattress $641 in coin and currency. This good woman immediately interrogated her son as to how and where he had obtained this money, and the boy finally confessed to her that it was a part of the loot taken from the bank. Shei thereupon took him to the bank, and made him return the money to the bank officials, and then turned him over to the officers. To them he made a confession implicating this defendant, who up to this time had not been suspected of having taken part in the affair.

At the trial this boy, Walter Woods, testified that Doyce Bohannon and he weire school mates; that he, Bo-hannon, and this defendant, George Livingston, had a number of times before the robbery conferred together and laid the plans to commit this robbeiry; that, pursuant to the plans finally agreed upon, Woods and Bohannon went into the bank through a rear door, shortly after noon; that they each wore blue overalls and black hats, with their faces covered with cloth masks, and were each armed with Colt revolvers; that Bohannon covered the cashier with his gun, and made him throw up his hands and kneel down next to the window, so as not to be seen from thei ■outside; that he (Woods) covered the assistant cashier, the only other person in the bank, with his gun and compelled, him to stoop down and go to thei vault and help him put into a sack which the boys had brought with them approximately $2,000 in currency and coin; that they then locked the two men in the vault, and made their escape through the rear door into some weeds and plum bushes near the rear of the bank, to a point about 75 yards from the rear of the bank, where they entered a waiting Dodge car driven by George Livingston, this defendant; that he and Bohannon crouched down between the front and rear seats and covered themselves with a blanket while the car was being driven to the home of the defendant; that, while in this position, he and Bohannon took out of the sack such currency as they could and had it on their persons; that, when they arrived at the home of Livingston, they divided equally what money remained in the sack, Livingston receiving $249; that Livingston then furnished Woods and Bohannon with a horse, which they rode away into some brush or a thicket not far away, and there discarded the outer clothes which they had worn during the robbery, and that they then walked back into Sayre.

Woods further testtified that Sunday night, before the robbery on Monday, they spent the night at Livingston’s in a garret room, and that Livingston carried their breakfast to them in this room; that at about 11:30 Sunday night they drove with the defendant and a Mr. Burns from Sayre to a place near the river bridge, where they got a sack of clothes which they had previously hidden there.

On cross-examination Woods testified that his attorney had informed him that, if he would testify to the facts, as outlined in his testimony, he (Woods) would receive a suspended sentence; and that he would not have so testified except for this understanding.

Neither Burns nor Bohannon testified and nothing appears in the record explanatory of this omission. In defendant’s motion for a new trial, a supporting affidavit by Burns was attached, in which he states that the portion of Wood’s testimony relativa to his going to the place near the river bridge where the clothes were said to have been hidden was false; that he never at any time saw Walter Woods or Doyce Bohannon in a car with George Livingston, nor ever at any time drove a car in which any of them rode with him.

We have carefully examined this entire record for some evidence corroborating the accomplice Woods, of the kind and character defined by section 2701, Comp. Stat. 1921, which reads as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The state produced no witness who saw the defendant with this self-confessed robber or his companion in crime at any time during the different steps of the preparation of the robbery, qr afterwards. No witness assumed to have seen the defendant in flight with the robbers after its commission. Mr. Burns, the only person mentioned by the accomplice as having been with or seen them together at any time before or after the robbery, was available but was not called by the state'.

The state did show that Livingston was in Sayre with a Dodge car at or about 12 o’clock, noon, and that he left town alone, passing along the road near the weed patch and plum thicket at the rear of the bank, but that was the extent of the testimony corroborating the accomplice Woods.

On cross-examination the defendant admitted' that he was 21 years of age and unmarried. It was further developed that he was what is sometimes termed a social “rounder;” that he sometimes indulged in the use of intoxicating liquor, and was a number of times a member of joy-riding parties with other men and women; and that, while in the army, he was once incarcerated for absence without leave.

Without the testimony of the accomplice Woods, the presence of this defendant in Sayre, at or near the time of the robbery, would not, of itself, raise even a suspicion against him. Indeed, for several days he was not suspected — not until the Woods boy made his confession implicating him.

The defendant established a perfect alibi by 10 disinterested witnesses at 12:20 to 12:30 o’clock, fixed by the blowing of the roundhouse whistle. These witnesses were all permanent residents of Sayre and vicinity, whose evidence the state did not attempt to impeach. But disregarding the evidence establishing an alibi, and relying wholly upon the evidence of the state, the defendant’s mere presence in Sayre with a Dodge car, at or near the time of the robbery, is not sufficient corroboration of the accomplice, as defined by our statute. The story of the Woods boy may be true, or partly true, but neither Burns nor any other witness was produced to corroborate a single incident of the elaborate preparations made for the robbery or the incidents following, as detailed by the accomplice.

felt would be dangerous and contrary to a well-established principle of law to permit this conviction to stand without some more substantial corroboration than appears in the record. The judgment of the trial court is therefore reversed, and the cause remanded for a new trial.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    STATE v. JOHN S. CHESNEY.
    No. A-4773.
    Opinion Filed Feb. 24, 1925.
    (233 Pac. 236.)
    (Syllabus.)
    1. Sunday — -Power of Legislature to Impose Observance of One Day in Seven as Day of Rest, but not Observance of Sunday as Religious Duty. The Legislature has power to impose upon the public the civil duty of observing one day in seven as a day of rest, but it is beyond its power to impose the observance of Sunday as a religious duty.
    2. Same — Defense to Prosecution for Work on Sunday. In a prosecution under sections 1825, 1826, Comp. Stats, 1921, prohibiting servile labor on the first day of the week, with certain exceptions, it is a sufficient defense that the defendant uniformly keeps another day of the. week as holy time, and does not labor upon that day, and that the labor complained of was done in . such manner as not to interrupt or disturb other persons in observing the first of the week as holy time.
    Appeal from County Court, Oklahoma County; James C. Cheek, Judge.
    John S. Chesney was prosecuted for Sabbath breaking. On question reversed on exception to judgment for finding accused not guilty, the state appeals.
    Dismissed.
    , George F. Short, Atty. Gen., and G. B. Fulton, Asst Átty. Gen., for the State.
    Everest, Vaught & Brewer, and Brett & Brett, for defendant in error.
   DOYLE, J.

In this case the state appeals on question reserved upon exception taken by the prosecuting attorney to the judgment of the trial court finding the defendant not guilty of the crime of Sabbath breaking.

The Attorney General has filed a motion to dismiss the appeals, as follows:

“This is an appeal from the county court of Oklahoma county, wherein the defendant in error, John S. Chesney, was charged with Sabbath breaking. Both the defendant and the state requested immediate trial. The cause was submitted to the court and a jury waived by the defendant. The court made findings of fact and conclusions of law, and rendered a verdict of not guilty, to which the state excepted.
“No briefs have been filed by either side in this case.
“The record discloses that the defendant, John H. Chesney, resided at 307 South Harvey street, Oklahoma City, and was engaged in the grocery 'business, and had; been engaged in the grocery business at that place for a considerable length of' time, and that the store was operated by himself and his wife.
“He testified that he belonged to the religious denomination commonly called the Seventh Day Adventist Church, and that that church habitually recognizes Saturday as the Sabbath Day, and that he habitually observed Saturday as his Sabbath Day; that he closed his store on Friday evening at sundown and kept his store closed until Saturday evening at sundown; that on June 4, 1923, he had his store open and doing business in the usual manner by selling groceries and meats over the counter and continuing his operations during the day until Mr. Wright, the county attorney of Oklahoma county, entered his place of business and closed it up. He testified that he was conducting his business in a common, ordinary, usual, and orderly manner, without any unusual noise or confusion, and that on the day previous, which was Saturday, he had his store closed all day until sundown as was his usual custom and habit.
“He further testified according to his religious beliefs that the Sabbath Day is the Seventh Day of the week and begins at sundown on Friday and ends at sundown on Saturday, and that according to his faith and the tenets of his church it was necessary to keep his store closed during that period.
“This question is governed by statutes in this state, which are as follows (sections 1825 and 1826, Comp. Stats. 1921):
“ ‘The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:
“ ‘First. Servile; labor, except works of necessity or charity.
“ ‘Second. Trades, manufactures and mechanical employment.
“ ‘Third. All shooting, horse racing or gaming.
“ ‘Fourth. All manner of public selling, or offering or exposing for sale publicly of any commodities, except that meats, bread, and fish may be sold at any time before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.’
“ ‘It is sufficient defense in proceedings for servile labor on the first day of the week, to show that the accused uniformly keeps another day of the week as holy time, and does not labor upon that day, and that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.’
“These sections have been construed by this court, and the question in the case at bar passed upon by this court in the case of Krieger v. State, 12 Okla. Cr. 566, 160 P. 36. The syllabus of the Krieger Case is as follows:
“ T. Our Sabbath law proceeds upon the theory, entertained by most of those who have investigated the subject, that the physical, intellectual and moral welfare of mankind requires a periodical day of rest from labor, and, as some particular day must be fixed, the one most naturally selected is that which is regarded as sacred by the greatest number of citizens, and which by custom is generally devoted to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.
“ ‘2. Our Legislature has wisely and properly, however, refrained from interfering with or coercing the conscience of those who uniformly, conscientiously, and religiously keep another than the first day of the week as holy time, by exempting them from the penalties of the law; provided they work on the first day of the week in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.
“ ‘3. In exempting persons who uniformly and conscientiously keep another than the first day of the week as holy time from the penalties of the statute, the Legislature intended to give them a substance and not a shadow; hence we hold the term “servile labor,” as used in our Sunday statutes, to be used as synonymous with the term “secular labor.”
“ ‘4. Courts which hold that to require Sabbatarians to keep our Sunday does not prevent them from also keeping the seventh day overlook the fact that under the divine commandment, that these people are striving to obey, it is as imperative that they work six days as that they rest on the seventh, and that, if their conscience compels them to rest one day, and the law also forces them to rest another, they will thus be forced to violate the first provisions of the commandment they are consciously attempting to keep.’
“Under the ruling of this court in the above-cited case, we think that the judgment of the lower court should be affirmed.
“We therefore respectfully submit to this honorable court that the judgment of the lower court in dismissing this cause should be affirmed, and that the appeal taken by the county attorney was not well founded, and that this case now in this court should therefore be dismissed.”

The Attorney General’s motion to dismiss, we think, is well founded, and for the reasons stated the appeal is dismissed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    A. J. HUNT v. STATE.
    No. A-4761.
    Opinion Filed Feb. 24, 1925.
    (233 Pac. 506.)
    (Syllabus.)
    L Homicide — Manslaughter in First Degree — Evidence Sufficient. In a prosecution for murder, evidence examined, and held sufficient to sustain the verdict of manslaughter in the first degree.
    2. Homicide — Self-Defense—Apprehension of Danger — Reasonable Grounds for Fear. The bare belief of one assaulted that be is about to suffier death or great personal injury will not of itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury.
    Appeal from District Court, Tillman County; Frank Mathews, Judge.
    A. J. Hunt, was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Hiles Hamilton, Wilson & Roe, P. Mounts, and W. M. Howenstein, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case, filed in the district court of Tillman county, A. J. Hunt was charged with the crimei of murder, alleged to have been committed in said county on or about the 27th day of November, 1922, by killing one J. R. Hughes. On the trial the jury returned a verdict finding- him guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for the term of seven years. He has appealed from thei judgment rendered in pursuance of the verdict, but no brief has been filed, and no appearance made on his behalf in this court. The case was submitted on the record.

Wei shall first consider the assignment of error that the evidence was insufficient to sustain the verdict. It appears that the deceased, commonly known as “Jack" Hughes, lived at Grandfield, his wife and their child living with him until a few months before his death, when, owing to domestic trouble between the deceased and his wife, a separation took place. The defendant, a deputy sheriff, following this separation, took the wife of the deceased on several trips around the country.

Three or four days before the fatal affray, W. A. Roberson went to the home of defendant, about seven miles from Grandfield, and told defendant’s wife that Mr. Hughes sent him there to talk to her, and see if she could get her husband to quit running around with his wife. The next day Mr. Roberson was talking to the county judge in the postoffice. Defendant came in and said to Roberson, “You are the damn son of a bitch that went out to my house and told that pack of lies.” Roberson told him he had the wrong man, and defendant said, “Well, who ever went out there told a damn pack of lies, and it is going to wind up in a shooting or killing.” The shooting occurred about 10 o’clock, in front of the Tillman County Bank.

Seven or eight witnesses testified that the defendant came_ out of the Tillman County Bank and walked up to where the deceased was talking to .another man; some words passed between them, and one or two blows were struck; then the defendant pulled his gun, and the deceased caught him around the waist. The defendant, holding him with one hand, shot him, and he fell on the sidewalk. He was taken to a doctor’s office, and remained conscious for about three hours, and died a few hours later.

Dr. Harper Wright testified:

“I was inside of the bank and saw them when they clinched in front of the window, and the shot was fired. I ran out, and Hunt said, ‘Doc, you take him around and fix him up.’ I called three or four other men, and we carried him around to my office. I dressed his wounds. The bullet entered the lower portion of the abdomen, and ranged downward; the intestines were badly torn, and the larger arteries were cut.”

Several witnesses testified that after firing the shot the defendant put his gun in the holster, kicked Hughes’ hat off the sidewalk, saying, “The son of a bitch,” then walked away, and returning took out a day book and asked who picked up the hammer. Some one said, “T. J. Tubbs,” and after writing the name said:

“The God damn son of a bitch told my wife a lot of stuff. Any one who would do a trick like that ought to be burned at the stake.”

The following written declaration taken by the county attorney was admitted:

“I, J. R. Hughes,' believing and realizing that I am mortally wounded, and that the end is near, do in the presence of God and those present say that Mr. Hunt had been going out to see my wife and trying to get her to sue me for divorce. He called me a God damn son of a bitch, and hit me, and I struck him with my fist. He started to draw his gun, and I threw my hammer at him to keep him from getting it. After throwing my hammer we clinched, and while we were clinched he shot me.” Signed by the deceased in the presence of nine witnesses.

On the part of the defense, Mrs. Alma Hunt, wife of the defendant, testified: That on the 28'd day of November, 1923, a man called at her home, asked for a drink, and after talking about land and leases said, “I am a Ku Klux, and the Ku Klux Klan has sent me here to tell you that Mr. .Hunt will never come home; they are going to kill him tonight.” That she asked him what for, and he said, “My name is Roberson; and I am going to prove to you that Mr. Hunt is untrue to you.” He took a paper from his pocket and said, “Here are the names of the citizens that signed,” and called over several names. And he said, “I have a letter here in my pocket to prove that Mr. Hunt is untrue to you.” She said, “Let me see the letter.” That she looked at it and said, “That is not Mr. Hunt’s handwriting.” Then he said, “Well, he has been running around with other women.” She said, “He has to go out riding with other women to gather information from other people.” He said, “Well, he has no right to gather information to send Jack Hughes to the pen.” Then pulled a paper out and asked her to sign it, and said, “It is to prove that you don’t depend on Mr. Hunt for your protection or support”; and she refused to sign it. He said, “Listen; if you will sign the paper, and don’t say anything about killing Hunt, the Ku Klux and K. P.’s will support you and your children the rest of your life.” That she said, ”He has not bothered any one, and they had better leave him alone.” He said, “You had better not tell that. I have been here; I am a Ku Klux.” And he drew a Ku Klux cap from his pocket and slipped it on. My son stepped up to the door, and he rushed away.

As a witness in his own behalf, the defendant testified that he was a deputy sheriff, and, on request of Mrs. Jack Hughes’ father, he made five or six trips with her to see witnesses to be used by her in her action for divorce; that his relations with her were in no way improper; that several persons, naming them, had told him that Jack Hughes had threatened to kill him; that his wife informed him that evening of what Roberson said to her; that when he came out of the bank Jack Hughes and another man were right in front of him; that he spoke to Hughes, saying, “Hughes, was you out at my house last week?” Hughes said, “No, God damn you, I was not at your house,” and reached one hand to his hip; that he started to slap him, and Hughes dodged back, then turned and struck him on the shoulder with a hammer, then threw his arms around him, and he drew his gun, whirled Hughes around, and shot him in self-defense.

Several witnesses testified that the deceased had made threats against the defendant’s life. The transcript of the testimony covers about 300 pages, but the foregoing is the substance of the material testimony.

It is obvious that the case was one for the consideration of the jury. Assuming that the deceased was the aggressor, the rule is well settled that the bare belief of one assaulted that he is about to suffer death or great personal injury will not in itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury.

It is assigned as error that the purported dying declaration of the deceased was admitted without proper predicate, because the evidence did not establish the fact that the deceased was then under a sense of impending death. An examination of the evidence on this question satisfies us that it was sufficient.

Several assignments of error are directed to the admission and rejection of testimony. We have examined them, and find no error in the rulings of the court in this regard. Several assignments are directed to the refusing of requested instructions, and to exceptions taken to the instructions given by the court. There is nothing in the objections to the instructions. Taken as a whole they correctly presented the law of the case, and were more favorable to the defendant than he had any right to expeot.

While the defendant is not represented in this court, we have' carefully gone through the record, and find it free from substantial error.

The defendant, from all the record discloses, had a fair and impartial trial. Under the evidence the defendant might well have been convicted of murder, and we think he ought to be thankful that the jury dealt so leniently with him. ' '

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JOHN GOERTZ v. STATE.
    No. A-4697.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 768.)
    (Syllabus.)
    1. Larceny — Information Held to Sufficiently Allege Nonconsenl of Owner to Tailing. An allegation in an information for larceny that the accused did “take, steal, and carry away” personal property 'belonging to another, sufficiently charges that the taking was against the will of the owner.

      2. Same. An information for larceny, which alleges that accused did “feloniously, unlawfully, fraudulently, and stealthily take, steal, and carry away*” property described, without alleging that the taking was without the knowledge or consent of the owner, is sufficient, since the word “steal” mean's, in common and legal parlance, the felonious taking and carrying away of the personal goods of another.
    3. Larceny — Evidence Sustaining Conviction for Grand Larceny. In a prosecution for larceny, evidence examined, and held to sustain a conviction for grand larceny.
    Appeal from District 'Court, Alfalfa County; James B. Cullison, Judge.
    John Goertz was convicted of grand larceny, and he appeals.
    Affirmed.
    S. A. Horton and C. B. Wood, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, Carl Davis and John Goertz, in Alfalfa county, on or about the 1st day of September, 1922 —

“did then and there feloniously, knowingly, wrongfully, unlawfully, wilfully, fraudulently, and stealthily take, steal,' and carry away two sets of harness, the personal property of A. W. Dillon, and of the value of $125, with the unlawful, fraudulent, and felonious intent then and there on the part of him the said Carl David, and on the part of him the said John Goertz, to deprive the said A. W. Dillon, the owner thereof, of said property, and to convert the same to the use and benefit of them the said Carl David and the said John Goertz, contrary to,” etc.

The defendant John Goertz asked for and was granted a severance. Upon his trial a.verdict of guilty was returned. The jury failed to fix the punishment. Motion for new trial was duly filed and overruled, and the court rendered judgment sentencing said defendant John Goertz to imprisonment in the penitentiary for a term of one year. The overruling 'the demurrer to the information is assigned as error.

The first contention of counsel for the defendant, which was raised by the demurrer thereto, is that the information did not state facts sufficient to constitute a public offense, and is insufficient for the reason that it fails to charge that the alleged stolen property “was taken without the knowledge or consent of the owner.”

To this contention we do not yield. The information alleges the property to have been taken feloniously, unlawfully, fraudulently, and stealthily, and then follows the additional allegations of “take, steal, and carry away,” and that the taking was with the unlawful, fraudulent, and felonious intent to deprive the owner thereof, and to convert the same to the use and benefit of the taker. These are not allegations of conclusions merely, but of ultimate facts, and they clearly negative any inference that consent to the taking of the property was obtained. The American and English Encyclopaedia of Law (volume 28, p. 555) says:

“The word ‘steal’ has a uniform signification, and in common, as well as in legal parlance, means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly and without leave or consent of the owner.”

And Law Diet, says: “Steal: To commit larceny.” Webster defines the word thus:

“Steal; to take, and carry away, feloniously; to take without right or leave, and with intent to keep wrongfully; as to steal the personal goods of another; to practice or be guilty of theft; to commit larceny or theft.”

The same author defines “larceny” to be “the unlawful taking and carrying away things personal, with intent to deprive the right owner of the same; theft.” The crime of larceny is defined in our Penal Code as follows:

“Larceny is the taking of personal property accomplished by fraud, or stealth, and with intent to deprive another thereof.” Section 2101, Comp. Stats. 1921.

In Underwood v. State, 23 Okla. Cr. 119, 212 P. 1010, it was held that the word “steal” was used in the statute with ordinary meaning, so that allegations of taking felon-iously and by stealth and with felonious intent to permanently deprive owner thereof sufficiently negatives owner’s consent. It follows that the information is sufficient, and the trial court did not err in overruling the demurrer thereto.

It is also contended that the evidence is not sufficient to support the verdict. A. W. Dillon testified that he lived a mile and a half from the town of Carmen, in Alfalfa county; that on the morning of September 1,1922, he missed from his place two sets of harness of the value of $125; that he noticed the footprints of two men about the barn where the harness was taken from; that he noticed that the harness had been dragged to the road where a car had stopped; that the car by its tracks showed that the right front casing was a smooth casing, the left front casing was a Firestone “T,” marked casing; that the right rear casing was a Firestone “T” marked casing, and the left rear casing had a mark of two rows of diamonds on the tread; that on the 5th day of September, in the town of Fairview, he recognized and identified an automobile bearing a set of casings exactly like the casings of the car that had stopped near his place, and to which the marks showed the harness had been dragged to; that search warrants were issued, and a search of the defendant’s premises disclosed that parts of the harness were concealed under hay in a granary; that the defendant owned the automobile in question.

Other witnesses testified as to the identity of the tracks, and as to the ownership of the automobile in question, and there was testimony showing that this defendant and his codefendant, Carl David, were at the Goertz place on the morning of September 1st.

At the close of the evidence the defendant moved the court for a directed verdict of acquittal, in the form of a demurrer to the evidence, which was overruled. The defendant did not testify, and the case was submitted to the jury on the evidence introduced by the state.

The jury, after a fair and impartial trial, concluded he was guilty, and we see no reason to doubt but the conviction was warranted by the evidence. The motion for a directed verdict of acquittal was therefore properly overruled. The other assignments of error are not raised by the record, nor mentioned in the briefs, and need not therefore be noticed.

Upon an examination of the whole record, we find no error prejudicial to the defendant.

The judgment of the trial court is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    Ex parte LEE WHITLEY.
    No. A-5139.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 769.)
    Petition for habeas corpus by Lee Whitley to obtain his release from imprisonment for murder.
    Cause dismissed.

      Lewis Paullin, Moss & Stephens, and A. W. Gilliland, for petitioner.
    'George F. Short, Atty. Gen., N. W. Gore, Asst. Atty. Gen., and J. K... Wright, Co. Atty., and H. T. Tumulty, Asst. Co. Atty., for respondent.
   PER CURIAM.

On behalf of Lee Whitley, a duly verified petition for writ of habeas corpus was filed in this court April 24, 1924, whereby petitioner seeks to obtain his release from imprisonment under a judgment and sentence of life imprisonment at hard labor, rendered upon a plea of guilty entered by petitioner and upon his arraignment on an information charging him and others with the crime of murder, which judgment was rendered in the district court of Oklahoma county on January 24, 1922.

It is alleged that the district court was without jurisdiction to render said judgment for the reason that petitioner was never afforded the opportunity of a preliminary examination; that petitioner was arraigned only before a justice of the peace in the county jail of Oklahoma county, and was denied the benefit of counsel at all times 'before said judgment was rendered; that said plea of guilty was obtained by duress and is void; and alleging facts constituting duress, and that for this reason the judgment and sentence of said court is void. The facts alleged being the same as set forth in the petition in the companion case of Polk v. State, 26 Okla. Cr. 283, 224 P. 194. On May 15, 1924, the case was submitted on the petition and return thereto and the evidence offered in support of and in opposition to said petition. Petitioner was enlarged on bond pending the determination of the case. On September 12, 1924, while the cause was still pending before this court, the Governor of the state granted said petitioner a full and unconditional pardon.

It is therefore adjudged and ordered by the court that said cause be dismissed.


text:
    D. R. IRETON v. STATE.
    No. A-4605.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 771.)
    (Syllabus.)
    1. False Pretenses — Allegation in Express Terms that False Pretenses Induced Person to Part with Money not Essential. In a prosecution for obtaining money by false pretenses, it is not essential to allege in express terms that by reason of the false pretenses the person defrauded was induced to part with money. It will be sufficient on this point if it be alleged in words of similar import.

      2. Same — Allegation of Facts from Which Ownership of Money Inr ferred Held Sufficient. In an information charging a defendant with obtaining money by false pretenses, it is not necessary that there be a direct allegation of the ownership of the money obtained. It will ibe sufficient on this point if facts are alleged from which the ownership can be inferred.
    3. Same — Information not Fatally Defective for Failure to Allege Causal Connection Between Pretense and Obtaining Money and in Failing to Show Deception Practiced. An information charging a defendant with obtaining money by false pretenses and alleging the representation, its falsity, the reliance thereon, and the obtaining of money thereby, is not fatally defective in failing to allege the causal connection between the pretense and the obtaining of the money and in failing to show the deception practiced, unless the pretense on its face is frivolous or appears incapable of inducing one to part with money.
    4. Indictment and Information — Certainty—Erroneous Allegation as to Person Injured: not Material. When an offense is charged in an information with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material.
    5. Appeal and Error — Harmless Error — Error in Pleading or Procedure. This court will not reverse a ease for an error in any matter of pleading or procedure, unless, after an examination of the entire record, it appears that the error complained of ha's probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.
    Appeal from District Court, Carter County; B. C. Logs-don, Judge.

      D. R. Ireton was convicted of obtaining money under false pretense, and he appeals.
    Affirmed.
    Mathers & Coakley, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The record in this case discloses a state of facts about as follows: The plaintiff in error had a daughter named Hattie E. Ireton, who owned some lands in 'Garvin and Grady counties, and .the plaintiff in error apparently conceived the idea of mortgaging this land and procuring the money paid out on the mortgage. In the month of October, 1919, he entered into negotiations with a real estate agent named Jones at Pauls Valley to procure a loan on the said land of Hattie E. Ireton, stating to Jones that his daughter wanted to make a loan on her lands, and arranged to go to Ardmore and complete the deal. The papers were prepared and sent to the State National Bank at Ardmore, and a day or two later the plaintiff in error went to the bank, accompanied by one Mary Doe, whom he represented to be his daughter, Hattie E. Ireton, and who, as such, executed a note and mortgage for $4,500 in the name of Hattie E. Ireton. The papers were made payable to the Exchange Trust Company, a corporation of Tulsa. Thereupon, at his request, the trust company at Tulsa was wired, and $1,500 of the money was at once paid on draft drawn through the Ardmore bank and placed ¡in the bank to the credit of Hattie E. Ireton, and checked out by Mary Doe, posing as Hattie E. Ireton. A few days later a further sum of $1,500 was paid over by the State National Bank in the same manner. On the day of the delivery of the first $1,500, $800 was checked to the plaintiff in error and $700 to the order of “cash.” The second payment of $1,500 was handled in the same way. During all this transaction both the plaintiff in error and Mary Doe, posing as H'attie E. Ireton, were present. Thereafter the plaintiff in error was apprehended, but Mary Doe was not found, but had evidently gone where the woodbine twineth. An information was filed, but before proceeding to trial it was amended by interlineation, but continued as an information and not as an amended information. At the trial Hattie E. Ireton, the real as distinguished from the pseudo, appeared as a witness, and testified to her ownership of the land, that she was not in Ardmore at the time in question, had executed no papers, and knew nothing about the transaction. The plaintiff in error did not take the stand and offered no evidence. There is no doubt of his guilt. The contentions he raises here are purely technical.

The assignments of error may be summarized as follows: First, that the amended information is fatally defective for three reasons: (a) It fails to allege that by reason of the false pretense the person defrauded was induced to part with the money; (b) it fails to allege the ownership of the money obtained; (c) it fails to allege the relation of the pretense to the obtaining of the money. Second, that the court erred in not sustaining plaintiff in error’s demurrer to the evidence. Third, error of the court in admitting incompetent evidence. Fourth, that the verdict is based on the information and not the “amended” information. We will consider the assignments in the order presented. The charging part of the information in this case is as follows:

“They, the said D. R. Ireton and Mary Doe, whose proper name is to the county attorney unknown, did then and there willfully, unlawfully, knowingly, fraudulently, and feloniously, with the fraudulent and felonious intent, then and there, to cheat and defraud State National Bank at Ardmore, Okla., falsely represent and pretend to the State National Bank, at Ardmore, Okla., a banking corporation duly organized and existing under and by virtue of the laws of the United States of America, that the right and proper name of the said Mary Doe was Hattie E. Iréton, which said false representations and pretenses were then and there false and untrue, and well known to the said D. R. Ireton and Mary Doe to be false and untrue; but the said State National Bank then and there, believing said false representations and pretenses, and relying on them to be true, and by reason of such belief and reliance, delivered to the said D. R. Ireton and Mary Doe the sum of $3,000, good and lawful money of the United States of America, with the felonious and fraudulent intent to convert same to their own use and benefit and- to deprive the true owner of the use and value thereof.”

It is contended that this information does not allege that by reason of the false pretense the person defrauded was induced to part with money, citing Taylor v. Ter., 2 Okla. Cr. 1, 99 P. 628.

That case does not support the contention here made. The indictment in that case did not allege that the person defrauded relied on the representation and was thereby induced to part w¡ith money. It did not allege that he was induced by the representation to part with money, but did allege that he was induced by an inference arising from the representation that the defendant in that case was the owner of certain lots in Guthrie. The court, speaking by Doyle, Judge, says:

“It is not charged that the defendant pretended or represented himself to be ‘a man of wealth and well able to pay his debts and obligations,’ and it is not set forth that, by reason of the false pretenses regarding the ownership of the lots in Guthrie or property in Chandler, complainant was thereby induced to make the loan. Had the indictment omitted the allegation, ‘and believing that the said John T. Taylor was a man of wealth and well able to pay his debts and obligations,’ and at least alleged ‘that the said W. M. Ayres was thereby induced to and did then and there loan to him,’ etc., it would have been sufficient. The language of the indictment is not a direct and positive allegation. It is merely an argument or inference that the owner of a few suburban lots in Guthrie would necessarily be a man of wealth and well able to pay his debts and obligations.”

This court in the later case of Fuller v. Ter., 2 Okla. Cr. 86, 99 P. 1098, in referring to the case of Taylor v. Ter., supra, said:

“In the case of Taylor v. Territory, ante, p. 1, 99 P. 628, it was held that the indictment was fatally defective because it failed to allege that the false pretenses set forth were relied upon by the complainant, or that he was thereby induced to make the loan when so made. This defect is fully cured in the indictment now before us. It is alleged in direct language that the complainant did rely upon the false representations made by the defendant, and, believing said representations to be true, was induced to and did loan to defendant the amount of money stated in the indictment.”

In the information in the instant case it will be observed that the allegation is made:

“The said D. R. Ireton did then and there * * * falsely represent, * * * which said false representations and pretenses were then and there false and untrue, and well known to the said D. R. Ireton * * * to be false and untrue, but the said State National Bank then and there, believing said false representations and pretenses and relying on them to be true, and by reason of such belief and reliance, delivered to the said D. R. Ireton * * * the sum of $3,000.”

This information does not in express terms allege that by reason of the false pretense the bank was induced to part with money, but no particular form of words is necessary. Any words which express this idea or from which it can be clearly inferred are sufficient. Smith v. Com., 141 Ky. 534, 133 S. W. 228.

It appears to us that the allegation that the defrauded party then and there believed the false representations and pretenses, and relied on them to be true, and by reason of such belief and reliance delivered money to the person making the representations, is equivalent in meaning to an allegation that the defrauded party was induced by the representations to part with money. See, also, Smith v. State, 7 Okla. Cr. 136, 122 P. 732; Blanck v. State, 14 Okla. Cr. 339, 169 P. 1130 ; Foster v. State, 15 Okla. Cr. 216, 175 P. 944.

It is next argued that the information is defective for the reason that the ownership of the money is not alleged. The statute upon which the prosecution is based is as follows:

“Any person who, with intent to cheat or defraud designedly, by color or aid of any false token, or writing, or other false pretenses, * * * obtains from any person any money or property, is punishable, etc. * * *”

What are the elements making up the offense defined by the statute? They are: A false representation as to an existing fact with an intent to cheat or defraud another, and a reliance by another on that representation as true, and by reason of and reliance thereon parting with money or property. It is necessary that the person from whom the money or property is obtained should be alleged in order to identify the transaction and apprise the accused of what he was expected to meet and to enable him to plead in bar to a further prosecution. In this particular the pleading is analogous to a charge of receiving stolen property. In such case it would be necessary to allege from whom the stolen property was received, but it would not be necessary to allege the ownership of the stolen property, nor by whom it was stolen.

The authorities generally hold that ownership should be alleged or that facts be alleged from which ownership may be inferred. People v. Skidmore, 123 Cal. 267, 55 P. 984; Griggs v. U. S., 158 F. 572, 85 C. C. A. 596; State v. Knowlton et al., 11 Wash. 512, 39 P. 966; McClintock v. State, 98 Neb. 158, 152 N. W. 378.

Under the provisions of our statute, however, an erroneous allegation in this particular would not be fatal, where, as in this case, there is sufficient certainty in the allegation to identify the act on which the prosecution is based.

Section 2560, C. O. S. 1921, is as follows:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Section 2564, C. O. S. 1921, reads as follows:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

And section 2822, C. 0. S. 1921, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

It appears to us that an allegation that a false pretense is made to a person, and, believing and relying thereon, and by reason thereof, the person to whom the representation is made parts with money is a sufficient allegation as to the ownership. The mere fact that the legal ownership of the money was in some other person who might ultimately have to bear the loss would not be available to the person accused. In the instant case it certainly made no difference to the plaintiff in error whether the money paid over to. him on the forged note and mortgage was the property of the First State Bank of Ardmore or of some other person. The, transaction is described with sufficient certainty to identify the act, and, if the allegation as to the person, injured be erroneous, it is not material, nor does it result in any miscarriage of justice.

It is argued that the information is defective, in that the relation of the pretense to the obtaining of the money is not stated; that is, that innuendo is lacking. The plaintiff in error and his codefendant, Mary Doe, might have been charged with forgery in signing the name of Hattie E. Ireton to che notes anu mortgage on the land in question. After the money mentioned in the information was credited on the books of the Ardmore State Bank, it was obtained on checks signed by Mary Doe, posting as Hattie E. Ireton. The Ardmore State Bank then literally parted with its money on the false representation that Mary Doe was Hattie E. Ireton.

The gist of the offense as above stated is the making of a false pretense and obtaining from another money or property which the other was induced to give up by reliance on such false pretense. Whether or not the false pretense really operated and was the inducing cause in obtaining the money is a question for the jury, and, unless the false pretense appears frivolous on its face, the court as a matter of law could not say that it was incapable of operating to induce one to part with money or property. The question is, not whether or not a prudent person would part with his money under the circumstances, but whether or not it was capable of and d¿d deceive and induce the person defrauded to part with money or property. The information is not fatally defective in failing to set out particularly how it was calculated to effect the obtaining. Thomas v. People, 34 N. Y. 351; State v. Solomon, 158 Wis. 146, 147 N. W. 640, 148 N. W. 1085, Ann. Cas. 1916E, 309; State v. Knowlton et al., supra; Meek v. State, 117 Ala. 116, 23 So. 155; Griggs v. United States, supra.

The plaintiff in error was not prejudiced by the failure on the part of the pleader to be more definite and specific in the charge contained in the information. We do not want to be understood as approving this information as a model; it is far from that, but is not under the record of this case fatally defective.

It is further contended that the state failed to prove the falseness of the pretense relied on; that is, that the state did not prove that the person designated in the information as Mary Doe was not in fact named Hattie E. Ireton. Such contention is not taken seriously by this court. It was probably not in the power of the state to prove the true name of the codefendant of plaintiff in error. The information alleges her true name to be unknown. She was a fugitive from justice, and, so far as the record discloses, her name and whereabouts continued to be unknown. Th© only thing the state could do under these circumstances was to prove by Hattie E. Ireton, the owner of the lands in question, that she had no connection with the transaction. This was sufficient proof on this point when corroborated, as it was, by other facts and circumstances in evidence.

It is urged that the court erred in admitting evidence of the entire transaction by which the money was obtained, for the reason that the allegation in the information is merely of a false pretense as to the name. There was no prejudicial error in permitting the state to introduce proof of the entire transaction.

Lastly, it is assigned as error that the verdict returned by the jury finds the defendant guilty of false pretense as charged in the information herein, and it is contended that this is error as the trial was upon an “amended” information. The record contains no amended information, but contains what is styled an information, and has a further recital that there was an amendment by interlineation. It appears that there was no change in the style or designation of the instrument, but it continued to be referred to as an information until the filing of a motion for a new trial, where, for the first time, it is referred to as an amended information. The court in its charge throughout refers to the information, and no exceptions are made to the use of such description. In the objections by plaintiff in error in the course of the trial the instrument is referred to as the information. It appears that the plaintiff in error was fairly, tried, the issues of law fairly submitted, and that such irregularities, defects, and imperfections in the information and proceedings as appear from the record were not such as to prejudice the substantial rights of the plaintiff in error, and do not result in any miscarriage of justice, nor constitute any substantial violation of any constitutional or statutory rights of the plaintiff in error.

The case is therefore affirmed.

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


text:
    Ex parte OLLIE EATON.
    No. A-5240.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 781.)
    (Syllabus.)
    Constitutional Law — Judgment and Sentence — Suspension of Sentence of Imprisonment Revokable Only Within Period Imposed in Sentence — Statutes Relating to Suspension of Sentence Held not to Invade Pardoning Power. Where a youth has been sentenced for an offense imposing confinement in the penitentiary for a term of two years and such sentence is suspended during good behavior under the provisions of sections 2803 and 2804, Compiled Statutes 1921, the language “to report to the judge of the court wherein) convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge,'’ imports that the sentence can be revoked only within the period imposed in the sentence, and that a revocation of a parole after that period is ineffective, and after that period the court is without power to enforce the original judgment, (a) These statutes held constitutional as not being an invasion of the pardoning power.
    Habeas corpus by Ollie Eaton.
    Writ awarded, and petitioner discharged.

      Hardie & Grim, for petitioner.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The petitioner alleges that he is unlawfully restrained of his liberty at the state reformatory at Granite, Okla., and shows that on the 7th day of March, 1922, petitioner entered his plea of guilty in the district court of Roger Mills county for the offense of larceny of domestic fowls,, and was by the district judge sentenced to serve a term of two years; that said sentence was suspended under the provisions of section 2803, Compiled Statutes 1921, and thereafter on the 29th day of February, 1924, an affidavit was filed in the said district court of Roger Mills county setting out that the petitioner had been guilty of a violation of law, and asking that the suspended sentence be revoked. On the 5th day of May, the judge of the district court made an order revoking the parole or suspended sentence theretofore granted, and ordered the petitioner transported to the state reformatory at Granite to serve the full time of the sentence.

The sections of the statute authorizing the suspended sentence, sections 2803 and 2804, Compiled Statutes 1921, are as follows:

“Whenever any youth twenty-one years of age or under shall be convicted in any court of record of any crime other than murder, manslaughter or arson, the judge trying said cause may, after sentence, suspend said judgment and sentence, and allow said youth so convicted to be released upon his own recognizance': Provided, that no such youth shall be so released who has not, prior thereto, borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States.
“Any youth so released as provided in the preceding section shall be required to report to the judge of the court wherein convicted, at each succeeding term during the pend-eney of said judgment, or when required by the court or judge, and prove to the satisfaction of said judge by two citizens of said county, of good reputation, that said youth has not violated any law, and has been a quiet, peaceful and law-abiding citizen: Provided, that if it shall be made appear to said judge that said youth so released has been guilty of a violation of any law after his said release, or is habitually associating with lewd or vicious persons, or is indulging in vicious habits, in that event said court shall cause a warrant to be issued for said youth, and he shall be delivered forthwith to the place of confinement to which originally sentenced, and shall serve out the full term for which he had originally been sentenced.”

We believe that the sections of the statute above set out are constitutional and do not invad'e the province of the Governor, or chief executive, of the state in extending executive clemency. In this particular, executive clemency is to be distinguished from judicial authority, and the question for determination is: Does the district court have power under the statute above quoted to revoke the suspended sentence after the time covered by the sentence had run?

It will be observed that section 2804, supra, requires the person so released “to report to the judge of the court wherein convicted, at each succeeding term during the pend-ency of said judgment, or when required by the court or judge.” We think the statute is clear, but if there is any ambiguity it should be resolved in favor of the person sentenced. It was evidently the legislative intent that in case of sentence imposed upon a minor other than for certain specific offenses, who had previously borne a good reputation and had not been convicted of any crime, such person should not be incarcerated if, during the term of the sentence, he conformed to certain conditions by reporting to the court, abstaining from associating with objectionable persons, and other conditions, and if before the expiration of the term of the sentence such person did violate the terms of his parole or suspended sentence, the court had the power to revoke the same and enforce the original sentence. After the expiration of the term of the sentence, he was no longer required to report, and the sentence was discharged.

It was certainly not the intention of the lawmakers to hold the sentence over the head of the person paroled so long as he should live, but only during the pendency of the judgment. To hold otherwise would be contrary to the spirit and policy of the law. And if within one year after the sentence has terminated, for any violation of the law or for associating with persons prohibited by the statute, the court may revoke the suspended sentence or parole and compel the incarceration of the person paroled, it might do so at any time thereafter.

The court in the case of People v. Reilly, 53 Mich. 260, 18 N. W. 849, mentions the execution of Sir Walter Raleigh, in the reign of James I, 15 years after his conviction.

The Supreme Court of New Mexico, in the case of Ex parte Lujan, 18 N. M. 310, 137 P. 587, takes the contrary view to that here announced and holds that the court may enforce the original sentence after the time has expired.

In the case of People ex rel. Lindauer v. O’Donnell, 37 Cal. App. 192, 174 P. 102, the court held that—

“The authority of a court to suspend a sentence or the execution thereof in a criminal case and liberating the defendant for a certain period is wholly statutory, and the statute itself furnishes the measure of the power which may thus be exercised. Nothing which cannot be found in the statute or which is not reasonably and fairly or necessarily within the reason or spirit or intent thereof can be imported into it by the courts. When therefore the Legislature says, as it has said, that the order of suspension and probation may be revoked or modified during the term of probation, without adding language so qualifying that provision as to justify the construction that the time when such revocation or modification may be made is extended beyond the term or period of probation, the necessary implication is that it was not the legislative intention to confer upon the court the right to exercise that power after the time at which the period of probation has expired. Indeed, this view of subdivision 4 of the statute in question follows from a consideration of its language by the light. of the faimilar statutory rule of construction, ‘Expres-sio unius est exclusio alterius.’ ”

But it is to be noted, however, that the California statute, giving the court power to suspend sentence, provides that after the term of probation the person sentenced shall be discharged. Generally, in those statutes where this power to parole or suspend sentences is given the court, its power to revoke /is limited by statute. In re Leonard Pontius, 6 Ohio App. 249; People v. Patton, 221 N. Y. 409, 117 N. E. 614; State v. Hoggard, 180 N. C. 678, 103 S. E. 891; People v. Dudley, 173 Mich. 389, 138 N. W. 1044.

In this case, however, we believe that the statute here under consideration requiring a report by the person sentenced “during the pendency of the judgment” discloses the legislative intent, and that after the expiration of the term of the judgment the court is without power to enforce the original sentence.

The writ is awarded, and the petitioner discharged.

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


text:
    L. E. ROBERTS v. STATE.
    No. A-4867.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 786.)
    (Syllabus.)
    1. Indictment and Information — Duplicity—Charging Two or More. Distinct Offenses not Based on Same Transaction. The indictment or information which charges two or more separate and distinct offenses, not based upon the same transaction, is bad for duplicity.
    2. Same — Conviction of Accused Required to Defend Against Two Distinct Offenses Reversed. Where it is clear from the information, the evidence, the verdict, and judgment that the defendant was called upon to defend against two separate and distinct offenses charged against him, over his repeated objections and exceptions, this court will not permit a conviction under such circumstances to stand unreversed, for the reason that such a conviction does not afford the defendant that fair and impartial trial according to the forms of law guaranteed to him by the Constitution and statutes of this state.
    Appeal from County Court, Bryan County ; S. W. May-tubby, Judge.
    L. E. Roberts was convicted of transporting intoxicating liquors, and he appeals.
    Reversed and remanded, with direction.
    Phillips & Phillips, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Bryan county, rendered on the verdict of a jury finding the defendant, L. E. Roberts, guilty' of transporting intoxicating liquor and assessing his punishment at 60 days’ confinement in the county jail and a fine of $50.

The errors assigned are that the court erred in overruling the defendant’s demurrer to the information, erred in instructing the jury, and that the verdict is contrary to law and the evidence.

The charging part of the information is as follows:

“Count 1. That is to say, the defendant did in said county and state at the date above named, unlawfully, wrongfully, intentionally and knowingly sell intoxicating liquors, to wit, one gallon of whisky, to one Y. C. Wall, contrary,” etc.
' “Count 2. That is to say, the said defendant, L. E. Roberts, late of Bryan county, did in Bryan county, Okla., on or about the 12th day of May, 1923, violate the Prohibition Law, by then and there unlawfully, wrongfully, knowingly and intentionally transport and convey intoxicating liquors, to wit, one gallon of whisky, from a point in Bryan county, unknown to this informant, to a point about one mile northeast of Matoy, Okla., contrary,” etc.

Our Procedure Criminal provides:

“The indictment or information must be direct and certain as it regards:
“First. The party charged.
“Second. The offense charged.
“Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”- Section 2556, Comp. Stats. 1921.

And further provides:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth -in separate counts <in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged .in the alternative in the same count.” Section 2558.

The foregoing provisions have been construed in numerous decisions of the court.

In Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57, it was held:

“Selling intoxicating liquor, and shipping or conveying such liquor from one place in the state to another place in the state, are separate and distinct acts, and cannot be joined in the same information or indictment.”

In Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980, it was held:

“An indictment or information which charges two or more separate and distinct offenses not based upon the same transaction is bad for duplicity, and should be quashed whether said charges are contained in one or more counts.”

And see Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483; Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Tunnard v. State, 5 Okla. Cr. 529, 115 P. 603; Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027; Williams v. State, 16 Okla. Cr. 54, 180 P. 559.

The court, among others, gave the following .instructions :

“You are instructed that if you find from the evidence beyond a reasonable, doubt the defendant guilty of either of those counts, you may return a verdict accordingly.
“The court instructs you if you find the defendant guilty beyond a reasonable doubt not to return a verdict on both counts but on only one count.”

On the authority of the foregoing cases, the judgment of the court below must be reversed, and the cause remanded, with direction to sustain the demurrer to the information.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte FRANK LAIR.
    No. A-5323.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 789.)
    (Syllabus.)
    1. Habeas Corpus — Jurisdiction, to Render Particular Judgment Inquired into, but Writ no Substitute for Appeal. Tbe jurisdiction of tbe court, adjudging and sentencing a person to prison, to render tbe particular judgment, is a proper subject of inquiry in babeas corpus proceedings; but babeas corpus cannot take tbe place; of a writ of error or of an appeal.

      2. Punishment — Rape in the First Degree — Life Imprisonment. Where an accused, properly charged, is convicted of rape in the first degree, the jury, or, if they fail or refuse, the court, may assess the punishment at imprisonment for life.
    Petition by Frank Lair for habeas corpus.
    Writ denied, and petition dismissed.
    J. W. Bartholomew, for petitioner.
    'George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding for a writ of habeas corpus. The petition, with a certificate of the record, discloses that the petitioner was informed against in the district court of Ottawa county for the crime of rape in the first degree, accomplished by means of force and violence. The case was tried and the jury returned its verdict as follows:

“We, the jury, impaneled and sworn in the above-entitled cause, do, upon our oaths, find the defendant, Frank Lair, guilty of rape in the first degree as charged in the information, and fix his punishment at imprisonment in the state penitentiary for and during the term of his natural life.”

On the verdict the court sentenced petitioner to the state penitentiary “for the term of the rest of his fife, for said crime by him committed, to begin on the 7th day of June, 1920.” The petition for the writ alleges that petitioner is restrained by the warden of the state penitentiary upon said verdict and sentence, but that same .-is illegal and contrary to law, in that it fails to state the time for which said petitioner is to serve; that the verdict and sentence is •in excess of the jurisdiction of the court and therefore void.

It is well settled that the writ of habeas corpus cannot take the place of a writ of error or of an appeal. In re Flowers, 2 Okla. Cr. 430, 101 P. 860; In re Cranford, 3 Okla. Cr. 190, 105 P. 367. And it follows that, where a petitioner is imprisoned under a judgment of conviction for crime, unless.the court was without jurisdiction to render the particular judgment, and the judgment is void, and not merely voidable, relief cannot be had by habeas corpus, no matter how numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto. In re McNaught, 1 Okla. Cr. 528, 99 P. 241; In re Talley, 4 Okla. Cr. 399, 112 P. 36, 31 L. R. A. (N. S.) 805.

So the only question for determination here is: Is the judgment and sentence on which the petitioner is held void, as being in excess of the jurisdiction of the court? If it is void, the petitioner should be discharged; if it is not void, the writ should be denied. The statute fixing punishment for rape in the first degree (section 1838, Comp. St. 1921) is as follows:

“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment, then the same shall be pronounced by the court.”

Petitioner contends that, as a life sentence is not expressly set forth in this section of the statute, it cannot be imposed, but that the sentence must be a definite term, not less than 15 years, to be'fixed by the jury, or, in the event the jury fail or refuse, to be fixed by the court. In support of this argument, reference is made to the provisions of our law allowing deductions for good behavior. Section 9234, Comp. St. 1921, reads:

“Every convict who shall have no infractions of the rules and regulations of the prison or laws of the state recorded against him shall be allowed for his term a deduction of two months in each of the first two years; four months in each of the next two years; five months in each of the remaining years of said term, * * * and, in addition to the deduction above provided for, every convict shall be entitled to a deduction from his sentence of two days for every six days’ work performed by him. * * *”

And it is argued that, as there are no exceptions to the last-quoted statute, it is necessary, in order to give it effect in any case, that the term of a sentence foe fixed and definite, and that even a life sentence should read 99 years. We befieve, however, that the Legislature has barred the contention of petitioner. Section 2304, Comp. St. 1921, is as follows:

“Whenever any person is declared punishable for a crime by imprisonment ¡in the penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than such as are prescribed.”

This statute was discussed in the case of Baysinger v. Territory, 15 Okla. 386, 82 P. 728, and it was there held:

“Where one charged with murder is convicted of manslaughter in the first degree, the court is authorized by the provisions of section 2676, Wilson’s Statutes 1903, to sentence such person to imprisonment in the penitentiary for life, or for any number of years not less than four.”

See, also, People v. Logan, 123 Cal. 414, 56 P. 56, where it is held that a similar statute authorizes the court to sentence the defendant, convicted of rape, to imprisonment for life. See also People v. Brooks, 65 Cal. 295, 4 P. 7; People v. Winthrop, 118 Cal. 85, 50 P. 390.

It is true that a sentence of life is indefinite and indeterminable. This is so of any sentence of imprisonment, for the reason that it may be ended by the death of the prisoner before its expiration. It is probably not possible, in the present state of our law, to apply the provisions of the good behavior statute above referred to to a life sentence. That, however, is a matter for the attention of the Legislature. It may have been an oversight on the part of the lawmakers in failing to provide a method for reduction in the case of a life sentence, or it may have been intentional, although no term of exclusion or exception is used. But in any event the matter here complained of is within the province of that branch of the government.

The further contention of the petitioner, that the judgment and sentence is invalid by reason of taxing the costs in the judgment and sentence, merits no attention. It is covered by statute and the decisions of this court. The verdict of the jury and the judgment and sentence of the court is not void, and it follows that the petitioner is not entitled to a discharge by habeas corpus, and 'the petition is therefore dismissed.

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


text:
    J. D. RICHARDSON v. STATE.
    No. A-4621.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 508.)
    (Syllabus.)
    Appeal and Error — Trial—Jury’s Province to Pass Upon Weight and Sufficiency of Evidence — Verdict Sustained by Competent Evidence not Disturbed. It is the province of the jury to pass upon the weight and sufficiency of the evidence, and, where there is competent evidence to sustain the verdict, it will not be disturbed by this court.
    Appeal from County Court,- Woods County; L. T. Wilson, Judge.
    J. D. Richardson was convicted of possession of intoxicating liquor with intent to sell, and he appeals.
    Affirmed.
    John Barry, for plaintiff in error.
    J. Roy Orr, Asst. Atty. Gen., and George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

On the 9th day of June, 1922, the-sheriff, with a search warrant, went to the place of residence of plaintiff in error and found two half-gallon fruit jars containing whisky, and a small quantity of red whisky in a bottle, a copper can, and pressure tank in the cellar near the house, and a copper coil in the yard outside. There was no evidence, however, of the use of these things. The plaintiff in error was not at home at the time of the search, and, while the sheriff was searching the cellar near the house, the wife of plaintiff in error was left at the house, and as the officers came out of the cellar she was outside going into the house, and a wet spot with freshly broken fruit jar bottles was then observed at the southeast corner of the house, which the officers examined and testified was made by corn whisky. She stated that she had spilled some gasoline there, and at the trial she testified to the same thing.

Prior to the enactment of the law of 1913 the mere possession of liquor was not sufficient to support a conviction of possession with intent to sell. McCarthy v. State, 6 Okla. Cr. 483, 119 P. 1020; Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101. That act made possession of more than one gallon of whisky prima facie evidence of an intent to violate the prohibition law. Section 6999, Compiled Stats. 1921.

But, even with that enactment, the evidence of the possession of prohibited quantity does not necessarily prove guilt; it is merely prima facie evidence. Such evidence may be rebutted or the contrary shown, or without any evidence of explanation the jury may disbelieve the evidence of the state, or may have a reasonable doubt of the intent to violate, notwithstanding the proven possession. Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Butler v. State, 12 Okla. Cr. 530, 159 P. 1090.

The matter of intent then, when coupled with possession, is largely a matter of fact to be determined by the jury, and from the very nature of the thing intent is not susceptible of being proven by direct and positive evidence, but must be proven by circumstances. Just what circumstances would be sufficient in any case cannot be defined by any fixed rules. The surrounding circumstances, the quantity, the concealment, the action of the accused or his immediate family, the reasonableness or unreasonableness of the explanation, if any, all have evidentiary value. In the instant case we are not able to say that the verdict of the jury is not supported by the evidence, and it will not be disturbed by this court.

The case is affirmed.

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


text:
    H. V. ZOBISCH v. GEARY.
    No. A-4799.
    Opinion Filed Feb. 28, 1925.
    (233 Pac. 766.)
    (Syllabus.)
    Appeal and Errox* — Appeal in Misdemeanor Case, not Taken Within 120 Days, Dismissed. Procedure Criminal (section 2808, Comp. Stats. ■ 1921) provides that “in misdemeanor cases the appeal must be taken within 60 days after judgment is rendered, provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding. 60 days.” Held: When an appeal in a misdemeanor case is not taken within the 120 days prescribed by the statute, the appeal will be dismissed, because this court is without jurisdiction to review the judgment.
    Appeal from County Court, Blaine County; W. F. Duncan, Judge.
    H. V. Zobisch was convicted of a violation of an ordinance of the city of Geary, and he appeals.
    Appeal dismissed.
    A. G. Morrison, for plaintiff in error.

      J. P. Wishard, for City of Geary,
   PER CURIAM.

The plaintiff in error was convicted in the county court of Blaine county, and was by the court on March 13, 1923, sentenced to pay a fine of $100. From the judgment an appeal was attempted to be taken by filing in this court on August 9, 1923, a petition in error with case-made.

J. P. Wishard, attorney for the city of Geary, on February 13, 1925, filed the following motion to dismiss the appeal:

“Comes now the defendant in error, the city of Geary, and shows to the court that this is a prosecution in the nature of a criminal charge brought by the city of Geary against the plaintiff in error, H. V. Zobisch, as shown by the complaints on pages 1 to 8 of case-made, inclusive, and that said appeal is from a judgment rendered in the county court on the 13th day of February, A. B. 1923, finding the said defendant guilty of misdemeanor and rendering a judgment thereon as shown in the case-made on pages 83 to 84, and which assessed a fine at $100 and costs taxed at $10.90, and that on the 13th day of March, A. B. 1923, a supersedeas bond was filed as shown in case-made on page 87, and that said proceedings were extended from time to time for a case-made until one was made and served on the 2d day of June, A. B. 1923, as shown in case-made on page 95, and was not filed in this court until the 9th day of August, A;. B. 1923, as shown by the clerk’s record and the filing marks on case-made. That in the orders of extension there is no extension of time to file the appeal in the Criminal Court of Appeals of the state of Oklahoma, and that the time for filing said case was never extended beyond the 60 days as shown by the various orders extending time for making and serving case-made as shown on pages 89 to 92 of case-made, and that the total time from the entry of judgment in this case until filed in this court is 176 days.
“Section 2808, Compiled Laws of Okla. 1921, time within which appeal must be taken: ‘In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the timé in which such appeal ’may be taken not exceeding sixty days.’
“This section has been construed by this court as follows : ‘Extension of time for filing appeal is not automatically done. Order should cover both time within which to make and serve case-made and time within which to file appeal.’ Holly v. State, 16 Okla. Cr. 164, 181 P. 518; Pinchback v. State, 14 Okla. Cr. 302, 170 P. 714.
“The court has further held as follows: ‘The Criminal Court of Appeals has no jurisdiction to entertain an appeal from a judgment of conviction for a misdemeanor filed therein later than the 120th day after the rendition of the judgment, and an appeal filed after that time will be dismissed.’ Shobe v. State, 16 Okla. Cr. 677, 181 P. 157.
“For the foregoing reasons we feel that this court is without jurisdiction, and that this appeal should be dismissed.”

An examination of the record discloses that the motion to dismiss the appeal is well taken. The appeal herein is therefore dismissed.