text:
    SAM TROTT v. STATE.
    No. A-9173.
    July 2, 1937.
    (70 Pac. 2d 118.)

      Jean R. Reed and W. A. Woodruff, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sanford Martin, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in the district court of Cherokee county with the crime of murder. He was convicted of manslaughter in the first degree; his punishment left to the court, who sentenced him to serve a term of 25 years in the penitentiary. The deceased was Lora D. Cone.

Upon this case being called for trial, the jury panel was exhausted with eleven jurors in the box. It was agreed by the defendant and the state, with the approval of the trial court, that the case should proceed to trial with eleven jurors, and the defendant waived his right in open court to have a full panel of twelve jurors.

For the first time on appeal the question is now raised that notwithstanding the waiver by defendant and agreement in open court to be tried by eleven jurors, the verdict of the jury was void by reason thereof, notwithstanding said agreement and waiver.

This question has been before the courts many times. The authorities are in hopeless conflict. In deciding this question there is nothing left to do but read these conflicting decisions, examine the reasoning and logic of each, and see which best applies to the surroundings of this state, taking into consideration the constitutional provisions and laws of this state, and the decisions that have heretofore been rendered by the courts of Oklahoma. Two of the earlier and leading cases upholding the doctrine that the defendant cannot waive the right to be tried by a jury of twelve, are the cases of Cancemi v. People, 18 N. Y. 128, and William Hill v. People, 16 Mich. 351. These cases give the best reasoning supporting the above contention, and is the reasoning given to support later cases upholding this doctrine. These arguments are that to be so tried by other than twelve jurors is to be tried by a tribunal unknown to' the common law and the Constitution. A distinction is drawn between a waiver in a civil case and a criminal case. In a civil case it is held that it is a waiver of only individual rights, which are within the individual control, and which they may part with at their pleasure, hence there is a manifest propriety in the law allowing such consent to' have the effect designed by it in civil cases. This right being based upon constitutional or statutory provisions that “a jury trial may be waived by the parties in all civil cases in the manner prescribed by law.” But it is argued that in criminal cases the prosecution involves public wrongs and as stated in 3 Blackstone’s Com. (2d Ed.) 45:

“A breach and violation of public rights and duties would affect the whole community, considered as a community, in its social and aggregate capacity.”

To the end that similar offenses may be prevented, and that no' one has a right by his own voluntary act to surrender his liberty or part with his life. The state and the public have an interest in the preservation of the liberties and lives of its citizens and will not allow them to be taken without “due process of law,” and as expressed by Blackstone, vol. 4, p. 189, when he says: “The king has an interest in the preservation of all of his subjects.”

It is further argued “if a deficiency of one juror might be waived why a deficiency of eleven might not be; and if it is difficult to see why upon the same principle the entire panel might not be dispensed with, and the trial committed to the court alone.” And in the Cancemi Case it is said:

“It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated.
“The opinion of the judges of the Court of King’s Bench in the case of Lord Dacres, tried in the reign of Henry the VIII for treason, strongly fortifies the conclusion above expressed. One question in that case was, whether the prisoner might waive a trial by his peers and be tried by the country; and the judges agreed that he could not, for the statute of Magna Charta was in the negative, and the prosecution was at the King’s suit. (Kelyng’s B., 59.) Woodeson, in his Lectures (vol. 1, 346), says, the same was again resolved, on the arraignment of Lord Audley, in the seventh year of the reign of Charles I, and that the reason was that the mode of trial was not so properly a privilege of the nobility as part of the indispensable law of the land, like the trial of commoners by commoners, enacted, or rather declared, by Magna Charta. In 3 Inst., 30, the doctrine is stated that ‘a nobleman cannot waive his trial by his peers and put himself upon the trial of the country, that is, of twelve freeholders; for the statute of Magna Charta is that he must be tried per pares, and so- it was resolved in Lord Dacres’ case.’ ”

In the case of Hill v. People, supra, in upholding the doctrine that the defendant cannot waive a full panel of twelve jurors, the court says:

“The true theory, we think, is that the people, in their political or sovereign capacity, assume to provide by law the proper tribunals and modes of trial for offenses, without consulting the wishes of the defendant as such; and upon them, therefore, devolves the responsibility, not only of enacting such laws, but of carrying them into effect, by furnishing the tribunals, the panels of jurors, and other safeguards for his trial, in accordance with the constitution which secures his rights. The government — the officers of the law — bring the jurors into the box; he has no control over the matter, who shall be summoned or compose the panel, upon which he may exercise the right of the challenge; and the prosecution must see that electors only are placed there, as the law requires.
“But independent of all theories, and as a practical question, we think there would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to give authority which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way of the safeguards which the constitution has provided him, in the unanimous agreement of twelve men, qualified to serve as jurors by the general laws of the land. Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow; but the whole judicial history of the past must admonish us that very serious evils should be apprehended, and that every step taken in that direction would tend to increase the danger. One act or neglect might be recognized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered away. The only safe course is to meet the danger in limine, and prevent the first step in the wrong direction.
“It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction. * * *
“We are aware there are some cases in England, and in this country, which appear to hold a different view. But to this extent we cannot regard them as sound in principle or safe in practice.”

Supporting the rule that the defendant has a right to waive the jury panel and be tried by a less number of jurors are the early cases of State v. Kaufman, 51 Iowa, 578, 2 N. W. 275, 83 Am. Rep. 148, and Commonwealth v Dailey, 12 Cush. (Mass.) 80, and Commonwealth v. Beard, 48 Pa. Super. 319. These cases give the reasoning and logic for the rule in favor of the defendant’s right to waive and be tried by less than twelve jurors.

In the case of State v. Kaufman, supra, the Supreme Court of Iowa says:

“That a defendant in a criminal action by silence may waive the benefit of a statutory provision wasJ clearly recognized. There are several other decisions which recognize the same principle. Hughes v. State, 4 Iowa, 554; State v. Ostrander, 18 Iowa, 435; State v. Reid, 20 Iowa, 413; and State v. Felter, 25 Iowa, 67. It must therefore be regarded as the settled doctrine in this state that a defendant in a criminal action, with the consent of the state and court, may waive a statute enacted for his benefit.
“The Constitution provides that The right of trial by jury shall remain inviolate, * * * but no person shall be deprived of life, liberty or property without due process of law.’ Article 1, § 9, Code, 770. That the jury contemplated by the foregoing provision should consist of twelve competent persons, will be conceded. The question for determination is, whether a defendant in a criminal action, with the consent of the state and court, can waive the foregoing constitutional provision and is bound thereby. The first impression would be, we think, that a constitutional provision would be waived as well as a statute. Both in this respect have equal force, and were enacted for the benefit and protection of persons charged with crime. If one can be waived, why not the other? A conviction can only be legally obtained in a criminal action upon competent evidence; yet, if the defendant fails at the proper time to object to' such ¿s is incompetent, he •cannot afterwards do so. He has a constitutional right to a speedy trial, and yet he may waive this provision by obtaining a continuance. A plea of guilty ordinarily dispenses with a jury trial, and it is thereby waived. This, it seems to us, effectually destroys the force of the thought that The state (the public) have an interest in the preservation of the lives and the liberties of the citizens, and will not allow them to be taken away without due process of law.’ The same thought is otherwise expressed by Blackstone, vol. 4, 189, that The King has an interest in the preservation of all his subjects.’ It matters not whether the defendant is in fact guilty, the plea of guilty is just as effectual as if such was the case. Reasons other than the fact that he is guilty may induce a defendant to so plead, and thereby the state may be deprived of the services of the citizen, and yet the state never actively interferes in such case, and the right of the defendant to so plead has never been doubted. He must be permitted to judge for himself in this respect. So in the case at bar. The defendant may have consented to be tried by eleven jurors because his witnesses were there present and he might not be able to get them again, or that it was best he should be tried by the jury as thus constituted. Why should he not be permitted to do so? Why hamper him in this respect? Why restrain his liberty or right to do as he believed to be for his interests? Whatever rule is adopted affects not only the defendant, but all others similarly situated, no matter how much they desire to avail themselves of the right to do what the defendant desires to repudiate. We are unwilling to establish such a rule. It may be said that if one juror may be dispensed with so may all buti one, or that such trial may be waived altogether and the trial had to the court. This does not necessarily follow.
“It will be time enough to determine such questions when they arise. Certain it is that the right to dispense with one or more jurors cannot be exercised without the consent of the court and state, and it may safely, we think, be left to them as to when or to- what extent it may be exercised. We, however, may remark, without committing ourselves thereto, that it is difficult to see why a defendant may not, with the consent of the court and state, elect to be tried by the court. Should such become the established rule, many* changes of venue based on the prejudice of the inhabitants of the county against the defendant might be obviated. * * * The foregoing views are sustained by Commonwealth v. Dailey, 12 Cush. (Mass.) 80; Murphy v. Commonwealth, 1 Metc. (Ky.) 365; Tyra v. Com., 2 Metc. (Ky.) 1. The crime charged in these cases was a misdemeanor, but in the first case this fact possessed no significance. The ruling is based on principles applicable to all criminal actions. We are unable to see how it is possible to draw a distinction in this respect between misdemeanors and felonies, because the constitution does not recognize any such distinction. The contrary conclusion was reached in Cancemi v. People, 18 N. Y. 128; Allen v. State, 54 Ind. 461; and Bell v. State, 44 Ala. 393. In neither of these cases was the question largely considered. Substantially they all seem based on the thought that ‘it would be a hig’hly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and law establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think ought not to be tolerated.’ Cancemi v. People, before cited. This would have been much more convincing and satisfactory if we had been informed why it would be ‘highly dangerous’ and should ‘not be to-ler-ated/ or at least something which had a tendency in that direction. For if it be true, as stated, it certainly would not be difficult to give a satisfactory reason in support of the strong language used.”

In the case of Commonwealth v. Dailey, supra, 12 Cush. (Mass.) 80, the Chief Justice of the 'Supreme Court of Massachusetts says:

“But supposing the law has duly provided that a jury of twelve men shall be impaneled to try an indictment, the evidence is all in, and a juror dies, or becomes Insane, — for we may state the exigency so strong, that it is impossible to proceed with the whole panel,' — whether it is legal for the accused, to consent to proceed without the juror withdrawn; or to state the same question in a little different form, whether he may stipulate before him, on the record, that he will take no exception to such irregularity, and if he does, whether the court cannot legally act upon it, and carry such stipulation into effect. We think they can.
“It may be said, perhaps, that a criminal case is no trial of a party’s rights; that it is for the interest of the public, in the administration of public justice, that no man shall be convicted or acquitted, otherwise than according to the course provided by law. Still, even in the administration of criminal law, many legal provisions are made for the security and benefit of the accused, and it may be for his interest and benefit to waive them. He may in the first place waive a trial altogether, and plead guilty. He may consent to admit legal instruments offered on the other side, without legal proof of execution, on the belief, perhaps, that the evidence will be beneficial rather than injurious to him. He is supposed to understand his own rights, or be aided by counsel competent to advise and act for him. In the case supposed, the accused may have been successful in laying before the jury all his evidence, which he may fear he cannot again obtain. A long time may elapse before he can have another trial, and it is important to Mm to' have an early decision, on many accounts.
“In the admission and rejection of evidence, in many points in the conduct of a trial, parties and their counsel, we think, may he safely allowed to judge as to what they will insist on and what they will waive. Having so done, and taken their chance for a verdict, it would he inconsistent with ordinary good faith and fair dealing to turn around and insist on legal exceptions, which they had pledged themselves to the court that they would not take. Fox v. Hazelton, 10 Pick. [Mass.] 275. So, if a party has ground of exception to a juror, and knows it when the jury is impaneled, by not taking the objection he waives it. Davis v. Allen, 11 Pick. [Mass.] 466 [22 Am. Dec. 386]; Hallock v. Franklin County, 2 Metc. [Mass.] 558. When an agreement is made by the attorney in a case, not to bring a writ of error, the court will take notice of it and enforce it specifically as a step in the judicial proceeding. Wright v. Nutt, 1 T. R. 338. These are civil actions, not exactly in point; but they declare a principle which has a strong bearing. In a case of felony, where a party had a right by law to have time to ascertain the indifferency of jurors, by consenting that the question should be tried by the court, he waived his right to except. People v. Rathbun, 21 Wend. [N. Y.] 509. The court in that case, say, the principle is the same in. felony, as that which binds in civil cases. Any agreement deliberately made, any plain assent express or implied, on the orderly conduct of a writ, or even an agreement to admit a material fact upon the trial, cannot be revoked. They cite the maxim of Lord Coke, 2 Inst. 183, Quilibet potest renunciare juri pro se introducto', as a maxim of universal application. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court. A prisoner who defends by counsel, and silently acquiesces in what they agree to, is bound in the same manner as any other principal by the act of his agent. The principle that the right of trial by jury is placed on the footing of a lex pro se introducta, and that the benefit of it may therefore be relinquished, is strongly declared by the Supreme Court of the United States, in Bank of Columbia v. Okely, 4 Wheat. 235 [4 L. Ed. 559]. In a recent English case, after a trial for conspiracy had] commenced, a juror stated that he had been one of the grand jury who found the bill., The public prosecutor offered to withdraw the juror and proceed with eleven, which the counsel for the accused declined, and the trial proceeded. After conviction a motion was made for a new trial, on the ground that one of the grand jury was on the panel. The court overruled it, on the ground that after the exception became known to the accused, by proceeding with the trial, he waived it. The Queen v. Sullivan, 8 Ad. & El. 831. See also the opinion of Mr. Justice Thompson in the case of United States v. Rathbone, [Fed. Cas. No. 16,121] 2 Paine, [578] 538.”
“But it is asked, if consent will authorize a trial before eleven jurors, why not before ten, or six, or one. It appears to us, that it is a good answer to say, that no' departure from established forms of trial in criminal cases can take place without permission of the judge, and no discreet judge would permit any such extravagant or wide departure from these salutary forms as the question supposes, nor any departure, unless upon some unforeseen or urgent exigency.”

In the case of Commonwealth v. Beard, supra, the Supreme Court of Pennsylvania, speaking of the question of waiver by defendant, says:

“The conflict is irreconcilable. All that remains at this day is to follow those of the decisions whose reasons commend themselves as the better ones and whose spirit is congenial to the policy and spirit of our own law.” The court in this opinion further says: “In truth, as appears by the best considered cases on both sides of the question, what the accused really consents to is simply not to' object to an irregularity, not indeed in the original constitution of the tribunal appointed for his trial, but in the continuing composition of one of its parts, occurring, by reason of unavoidable circumstances, at a subsequent stage of the proceeding, after the jurisdiction of the tribunal had attached, and existing at the rendition and reception of the verdict. He does so at a time and under conditions when perfectly free tO' choose whether SO1 to consent or not, without any liability to prejudice by reason of a refusal to consent. Having for reasons of his own given his consent and taken the chances of the result, he should, upon every analogy in our law and upon the most obvious grounds of good faith and justice be precluded from retracting it when disappointed in the result.”

Without citing further cases in support of and against this proposition, we desire to call attention to the case of Patton et al. v. United States, 281 U. S. 276, 50 S. Ct. 253, 254, 74 L. Ed. 854, being a case arising in Oklahoma and appealed to the Eighth Circuit Court of Appeals (which at that time had jurisdiction of appeals from the federal courts of this state) and by that court certified to the Supreme Court of the United States, where, in an elaborate opinion by Justice Sutherland, the question involved in the instant case was discussed at great length and a most careful review is made of the cases, both sustaining and those in opposition to the question involved in the instant case. The court, after a careful review of all of these cases, answers the certified question in the affirmative. The question being as follows:

“After the commencement of a trial in a federal court before a jury of twelve men upon an indictment charging a crime, punishment for which may involve a penitentiary sentence, if one juror becomes incapacitated and unable to further proceed with his work as a juror, can defendant or defendants and the government through its official representative in charge of the case consent to the trial proceeding to a finality with 11 jurors, and can defendant or defendants thus waive the right to a trial and verdict by a constitutional jury of 12 men?”

This case will also be found in 70 A. L. R. 263, and on page 279 there is an annotation upon the question, “Right to consent to trial of criminal case before less than twelve jurors; and effect of consent upon jurisdiction of court to proceed, with less than twelve,” which cites the cases from all the states upon this important question.

In the Patton Case Justice Sutherland gives the most convincing argument of the right of defendant to waive this constitutional or statutory right to be tried by a full panel of twelve jurors, when he says:

“It is difficult to see why the fact, frequently suggested, that the accused may plead guilty and thus dispense with a trial altogether, does not effectively disclose the fallacy of the public policy contention; for if the state may interpose the claim of public interest between the accused and his desire to waive a jury trial, a fortiori it should be able to interpose a like claim between him and his determination to avoid any form of trial by admitting his guilt. If he be free to decide the question for himself in the latter case, notwithstanding the interest of society in the preservation of his life and liberty, why should he be denied the power to do so in the former? It is no answer to say that by pleading guilty there is nothing left for a jury to try, for that simply ignores the question, which is not what is the effect of the plea, the answer to which is fairly obvious, but, in view of the interest of the public in the life and liberty of the accused, can the plea be accepted and acted upon, or must the question of guilt be submitted to a jury at all events? ■Moreover, the suggestion is wholly beside the point, which is that public policy is not so inconsistent as to permit the accused to dispense with every form of trial by a plea of guilty, and yet forbid him to dispense with a particular form of trial by consent.
“The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in tbe given circumstances from constitutional or statutory provisions, should be accepted as the basis of a prejudicial determination, if at all, only with the utmost circumspection. The public policy of one generation may not, under changed conditions, be the public policy of another.
“It may be conceded, at least generally, that under the rule of the common law the accused was not permitted to waive trial by jury, as generally he was not permitted to waive any right which was intended for his protection. Nevertheless, in the Colonies such a waiver and trial by the court without a jury was by no means unknown, as the many references contained in the brief of the Solicitor General conclusively show. But this phase of the matter we do' not stop to consider, for the rule of the common law, whether exclusive or subject to exceptions, was justified by conditions which no longer exist; and as the Supreme Court of Nevada well said in Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269, 279, 21 Pac. 317, 320, 4 L. R. A. 60, 19 Am. St. Rep. 364: ‘It is contrary to the spirit of the common law; itself to apply a rule founded on a particular reason to a case where that reason utterly fails, — cessante ratione legis, cessat ipsa lex.’
“The maxim seems strikingly opposite to the question here under review. Among other restraints at common law, the accused could not testify in his own behalf; in felonies he was not allowed counsel (IV Sharswood’s Blackstone, 355, note 14), the judge in such, cases occupying the place of counsel for the prisoner, charged with the responsibility of seeing that the prisoner did not suffer from lack of other counsel (Id.); and conviction of crime worked an attaint and forfeiture of official titles of inheritance, which, as Judge Aldrich points out (quotation supra), constituted in a large sense the reason for withholding from accused parties the right of waiver.
“These conditions have ceased to exist and with their disappearance justification for the old rule, no longer rests upon a substantial basis. In this respect we fully agree with what was said by the Supreme Court of Wisconsin in Hack v. State, 14 Wis. 346, 351, 352, 124 N. W. 492, 494, 45 L.R.A. (N.S.) 664: ‘The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent men should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel, and was punished, if convicted, by the death penalty, or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist and well that every technical requirement should be insisted on, when the state demanded its need of blood. Such a course raised up a sort of a barrier which the court could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted but yet under the ordinary principles of waiver as applied to civil matters, had waived every defect in the proceedings. ■
“ ‘Thanks to the humane policy of the modern criminal law, we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state; not infrequently he is thus furnished counsel more able than the attorney for ■ the state, in short the modern law has taken as great pains to surround the accused person with the means to effectively make his defense as the ancient law took pains to prevent that consummation. The reasons which in some sense justified the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misde-meaner, who comes into court with his attorney,- fully advised of all his rights, and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it.’ The view that power to waive a trial hy jury in criminal cases should be denied on grounds of public policy must be rejected as unsound. * * *
“Although we reject the general view of the dissenting opinion that a waiver of jury trial is¡ not valid in any criminal case, we accept the foregoing statement as entirely sound. We are unable to find in the decisions any convincing ground for holding that a waiver is effective in misdemeanor cases, but not effective in the case of felonies. In most of the decisions no real attempt is made to establish a distinction, beyond the assertion that public policy favors the power of waiver in the former, but denies it in the latter because of the more serious consequences in the form of punishment which may ensue. But that suggested differentiation, in the light of what has now been said, seems to us more fanciful than real. The Schick Case, it is true, dealt with a petty offense, but, in view of the conclusions we have already reached and stated, the observations of the court (195 U. S. 65. pp. 71, 72, 24 S. Ct. 826, 828 [49 L. Ed. 99, 1 Ann. Cas. 585]) have become equally pertinent where a felony is involved.”

To our mind the reasoning supporting the doctrine that the defendant has the right to waive and be tried by a jury of eleven men instead of a full panel of twelve is the more logical, and especially is this true under the Constitution and statutes of this state, and the former decisions of this court in construing those provisions. Article 2, section 19, of our Constitution provides:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; * * * in criminal cases less than felonies, three-fourths .of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict.”

Article 2, § 20, provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

Article 7, § 20 provides:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

In construing these various provisions, this court has heretofore given them a liberal construction, and we find no good reason for a change a.t this late date. In the early case of In re Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028, Judge Doyle, in rendering an opinion for the then Governor, His Excellency, Honorable Lee Cruce, after citing the Oklahoma Statutes as follows, Snyder’s Statutes, § 2275, now Oklahoma Statutes 1931, § 2222 (21 Okla. St. Ann. § 707), held:

“The statute providing (section 2275, Snyder’s Sts. 1909) that upon a plea of guilty of murder the court shall determine whether the defendant shall be punished by death or by imprisonment for life at hard labor is constitutional and valid, and where a defendant who has been informed against for a capital crime in a court of competent jurisdiction pleads guilty, such court is authorized to pronounce judgment and sentence against such defendant according to law. In such a case, there is no issue to be submitted to a, jury.”

In the case of In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118, this court upheld the right of a jury of six men to try a defendant in a misdemeanor case in a superior court of this state.

In the case of Ex parte J. C. King, 42 Okla. Cr. 46, 274 Pac. 682, this court held that the defendant had the right to waive a jury of twelve in a felony case and have the trial court hear the evidence and pronounce sentence, and also, in the case of Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, 368, the court says:

“Where a constitutional right in a criminal cause is largely for the benefit of the accused or in the nature of a personal privilege, the law is Avell settled that an accused may waive such right.”

And in the case of Ex parte Hollingsworth, 46 Okla. Cr. 353, 287 Pac. 840, Judge Edwards, in a habeas corpus case, passed upon the identical question involved here. In this case the defendant was charged with murder and was convicted of manslaughter as in the instant case, and the court, in the syllabus says:

“In the trial of a felony case after a jury had been impaneled and the state had introduced its evidence, and it became necessary that one of the jurors be excused, the state and the defendant, in open court, with the consent of the court, stipulated and agreed that the case should proceed with the eleven jurors remaining. Held that the defendant could waive his constitutional right to have a panel of tAvelve jurors, and, that the verdict and judgment of the jury so constituted is not void.”

The defendant offered three requested instructions, which Avere refused by the court, and to Avhich defendant excepted. The record does not reveal that any exception was taken to the general instructions given by the court. We have carefully examined the instructions given and ;are of the opinion that they fully and clearly cover the law of murder and manslaughter in the first degree, in accordance with the facts in this case. The requested instructions are covered in the general instructions, and this no doubt was the reason the court refused to give them. The defendant not having excepted to the general instructions,. he would not be entitled on appeal to object to them according to the decisions of this court except as to fundamental errors, but we have examined them as stated above and find no error which would deprive the defendant of any substantive right.

The facts in this case reveal that the defendant and deceased had lived on adjoining farms in Cherokee county for many years. A controversy arose over the location of the line fence between their farms, and as to which of them owned the wire on the fence located thereon. This controversy had continued for some time and the defendant on the day before the killing, with the assistance of two hired hands, had torn down a part of the fence and was building a new one. On the morning of the 9th day. of March, 1935, the deceased came to where the hired hands of the defendant were repairing the fence. Some words were spoken and the deceased sent one of the defendant’s grandsons, who was also present, to the house to ' tell his grandfather to come down there. Upon receiving this information the defendant armed himself with a pistol and proceeded to ivhere deceased was. There was a direct conflict between the witnesses as to' what occurred at the time of the difficulty. The witnesses for the state, and most of them were less disinterested and were not related to either of the parties, two of them were working for the defendant, testified that after certain conversation between the defendant and deceased, the deceased put his hands on some wire that had been rolled up and that defendant said: “God dam your honory soul, get your hands off my wire,”or “Keep your hands off of my wire”; that deceased took his hands off the wire, and stepped back a few steps when the defendant drew his pistol and shot the deceased in the face. These witnesses testified that the deceased made no effort to secure a gnn. They also testified that when deceased fell to the ground, his wife and others attempted to go to deceased and the defendant forbid them from doing, so and threatened them by saying: “I told you to stop. ¡Stop or I will kill the last damn one of you.” The eyewitnesses for the defendant who consisted of himself, his wife and two grandsons, while admitting the shooting of deceased by defendant, swore the deceased was making an attempt to go into his bosom as if to secure a gun and that while doing, this the defendant demanded of him: “Don’t do that,” and “I jerked my gun and shot.”

The evidence revealed that a neighbor to both parties was a deputy sheriff and that he soon came and examined the deceased and found below his jacket, attached to his pants, a pistol. He testified that the deceased was wearing two shirts and a lumber jacket and that the jacket was buttoned from the bottom up for several buttons and that the gun was under the jacket and that he had to reach in and take two jerks to get it out. Other witnesses corroborated this statement.

Without stating, the evidence in detail, which we do not consider necessary, it was. as stated above conflicting. The jury heard the evidence, saw the witnesses and observed their demeanor upon the witness stand. After hearing this evidence, they agreed that the defendant was guilty, and so found. We agree with their decision. If the evidence of the state was true, the jury would have been justified had they found the defendant guilty of murder, but they only saw fit to find him guilty of manslaughter in the first degree. The court assessed the punishment as it had a right to do under the law.

Finding no error, we are of the opinion that the judgment of the district court of Cherokee county should be affirmed, and it is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    ALEX H. DICKEY v. STATE.
    No. A-9265.
    July 2, 1937.
    (70 Pac. 2d 127.)
    Chester Bender, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case formally charged that Alex H. Dickey did in Custer county, on or about August 18, 1936, commit the offense of larceny of domestic fowls, to wit, six chickens, the property of W. C. Danford.

Defendant was found guilty as charged in the information and his punishment assessed at confinement in the penitentiary for 18 months.

The appeal is from the judgment rendered on the verdict.

The only error assigned and urged is that the evidence was not sufficient to sustain a conviction.

It appears from the testimony that W. C. Danford lived three miles south of the town of Thomas ; that during the month of August, 1936, while he was away from home, his son Carl Danford lived on the place.

Carl Danford testified that he lived three-quarters south, a mile- west, and a quarter south of his father’s place; he and his wife stayed at his father’s place during the month of August; that his father had 18 milk cows, and a large number of chickens. That defendant and one of his sons came to his father’s place twice a day and milked the cows and he hired another son of the defendant to help do the milking; that on the 18th day of August he with the defendant came from over on the river about 5 o’clock in the evening to his father’s place. The defendant’s boys were there; witness then went to his wife’s folks’ place a mile north and a mile west, leaving the defendant and his three sons at his father’s place. It was then about sundown. Shortly after he came back and saw the younger Dickey boy going, across the field carrying a sack on his back; that witness got in his car and Avent north to where the boy had gone and found a sack with chickens in it under a highway culvert. Then he called Mr. Gingerich, a neighbor. Shortly afterwards the defendant and two of his boys in a car drove by. Then he left Mr. Gingerich to watch the culvert.

He further testified that the Dickeys, father and sons, worked for the Danfords off and on and helped to care for and milk the cows.

Dave Gingerieh testified that he lived about a quarter of a mile from the Danford farm, that Carl Danford came to his place a little after sundown, and they went to a highway culvert, and there found some chickens alive and cackling in a sack; that they watched there a while and saw Alex Dickey and two of his boys pass by in a car; that Danford left, witness stayed there awhile, and Loyd, the younger Dickey boy, came along on foot; witness said to the boy, “Come down here, you are after these chickens,” the- boy said, “Yes,” then witness told the boy to take the chickens back and they went up to Danford’s and Carl took six chickens out of the sack.

Loyd Dickey, as a witness for the state, testified that he was 15 years old; that his home was about two miles from the Danford place; that he was at the Danford’s farm August 18th, helping do the chores; that Carl Danford left the place about dark and was gone 15 or 20 minutes and while he was gone witness took some chickens and put them in a sack down at the tool shed; then took the sack down to the highway about a quarter of a mile and put it under a culvert, then went back to the milkhouse; that he went home with his father and brother; that he told his father that he had taken some chickens; that he went back to get the chickens and when he came to the ¡culvert Mr. Gingerieh was there.

We quote from his testimony as follows:

“Q. Who got the chickens? A. I did. Q. Did anyone help you? A. No, sir. Q. Was your daddy there? A. Yes. Q. What did he do? A. He didn’t know I was getting them, he was over at the milk house separating when I got the chickens. Q. And your father didn’t help you? A. No, sir. Q. That is not what you told us before, is it? A. No, sir. Q. You told us your daddy helped you and told you he would whip you if you didn’t get them? A. Yes. Q. How far was it from the chicken house to the milk house? A. About 30 steps. Q. When you got back to the culvert you found Mr. Gingerich there? A. Yes. Q. You went to the reform school? A. Yes. Q. How long have you been there? A. A month and three days. Q. Since you have been back you talked to your daddy? A. Yes, yesterday evening. Q. He told you what to swear to? A. No, sir. Q. When did you decide to change your story? A. Yesterday, on the way up here. Q. Now, you testified at the preliminary trial that your father went and got a sack and told you to go and help him get the chickens, didn’t you? A. Yes. Q. And when you got down the road your father told you to go back and get them? A. Yes, sir. Q. And told us before that that your father got the chickens? A. Yes. Q. And that was not so? A. No, sir. Q. And your father and brothers were there? A. Yes, sir. Q. And they didn’t see you? A. No, sir.”

At the close of the state’s case counsel for defendant demurred to the evidence “as not sufficient to make a case against the defendant.”

On the part of the defense Doyle Dickey testified that he is a son of A. H. Dickey and a brother of Floyd and Loyd Dickey, that he was helping his father and brother Floyd to do the separating in the milk house, that he did not know where his little brother was during the time they were separating, about 30 minutes; that on the way home Loyd having gone about a mile told him he got some chickens and put them under a culvert, and he told their father and their father stopped and told Loyd to go and take them back and tell Carl about it.

The defendant testified in his own behalf that he and his two eldest sons worked for Mr. Danford, and the oldest boy is still working for Mr. Danford; that they had 18 cows to milk; that on the way home that evening he heard about taking these chickens and he gave Loyd a thrashing and told him to g,o and take the chickens back and tell Carl about it, then come home with his brother Floyd.

This court will not ordinarily disturb the decision of the trial court in overruling a demurrer to the evidence, or in denying a motion for a new trial, based upon the insufficiency of the evidence to sustain a conviction, and it will not do so where the evidence shows the commission of the offense charged, and from which guilt of the defendant can be fairly inferred, but it will interfere where it clearly appears that the verdict and judgment of conviction are without support in the evidence. In this case the only evidence tending to connect the defendant with the commission of the larceny charged was the testimony of his son, Loyd, on the preliminary examination. On the trial this witness, the boy who took the chickens, stated that his father did not direct or tell him to take the chickens and that his former testimony was not the truth.

It seems to us that an injustice was committed when upon this evidence the defendant was convicted of the larceny. The evidence at best only raises a mere suspicion of the guilt of the defendant, and the demurrer thereto should have been sustained.

Being clearly of the opinion that the verdict and judgment of conviction are without support in the evidence, the judgment of the district court of Custer county is reversed and cause remanded, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    HARRY BURTON v. STATE.
    No. A-9180.
    July 9, 1937.
    (70 Pac. 2d 480.)
    R. Allen Dixon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., for the State.
   BAREFOOT, J.

The defendant in this case was charged with the crime of receiving stolen property in Tulsa county, was convicted and sentenced to' serve a term of two years in the penitentiary.

The record reveals that the home of R. W. Gamble was entered during the month of December, 1935, and there were taken therefrom a three-piece blue suit, valued at $15, two shirts, and a Parker pen and pencil set. A short time later one of these shirts appeared in a bundle of laundry at the laundry where Mrs. Gamble worked. She informed the officers and they procured a search warrant to search the premises from where the laundry came, 410 East Brady street, Tulsa, Okla. The officers found there the three-piece suit and the Parker pen and pencil which had been taken from the Gamble home, and other property consisting, of a dark suit of clothes which had been previously stolen from a hotel room of a man by the name of Lynn Gold. The party living at 410 East Brady street was named Ethel Adams. Two of the defendant’s sons were living at this address, one of them was named Harry Burton, Jr. The defendant himself lived at 1128 North Greenwood street, Tulsa, Oída. The defendant paid Ethel Adams to board and keep his two sons. Ethel Adams testified at the preliminary hearing of the defendant, saying that she purchased the above-described property from a white man by the name of Murray, and the record showed that this party had been convicted and was serving a 60-day jail sentence for the larceny of the property with which the defendant was charged with receiving. This conviction was based upon the testimony of Ethel Adams and by reason thereof Murray pleaded guilty to the larceny of the said property.

The defendant testified that he had agreed to buy the three-piece suit from Ethel Adams if it would fit him. He was to pay the sum of $3 therefor. He sent the pair of pants to this suit to the tailor for the purpose of having the same altered. He testified that he had no knowledge that the property was stolen at any time. The officers who made the search were the only ones testifying for the state with direct reference to any receipt of the property by the defendant. They testified only to- the finding of the property and statements claimed to have been made by the defendant at the time of the search, which the defendant denied. The evidence was somewhat conflicting as to whether the defendant himself lived at 410 East Brady street. One of the colored officers swore that the defendant told him he lived there. This was on rebuttal. The most reliable evidence is that the defendant did not live there himself, but lived at 1128 North Greenwood street. The evidence further showed that the defendant had been convicted several times prior to this trial, and had served a term in the penitentiary.

It is contended by defendant that the court erred in overruling the motion for continuance filed in this case and the court’s refusal to permit the defendant to have read to the jury, by the court reporter, the testimony of the witness Ethel Adams. Under the circumstances surrounding this case, we are inclined to believe this contention is” well taken. The record in this case reveals that the defendant’s preliminary trial was had on the 9th day of January, 1936. Counsel who defended him was appointed on that date and his case was set for trial on January 22, 1936. He remained in jail until two days before his case was tried, which was on the 29th day of January, 1936, by reason of the congested docket of the court. The witness Ethel Adams had been to see him while he was in jail, and had promised to testify in his behalf at his trial. He became suspicious of her and took the precaution to have a subpoena issued several days before his trial. When she did not appear in court on the 23d day of January, he had the court issue a bench warrant for her arrest and the same was placed in the hands of the officers. The record is silent as to any effort on their part to locate her and have her present to testify on the date of the trial. This, although she was living, in Tulsa county, and the record discloses, made her appearance the day after the case was tried.

In addition to the presenting of the motion for continuance which was overruled by the court, the defendant had issued a subpoena for the court reporter who took the testimony of the witness Ethel Adams at the preliminary hearing and the record shows the following proceedings:

“Mr. Dixon: * * * Now, if the court please, we have subpoenaed the Beporter of the preliminary hearing, and would like to have the testimony that was introduced at the preliminary trial read into this record; we would like to have a little recess to make that available. The Court: Have you subpoenaed her? Mr. Dixon: Subpoenaed her since noon, forthwith. The Court: I guess she will come. Mr. Dixon: I think she was reporting another case over there when the deputy went over. The Court: Can’t you use somebody else? Mr. Long: I think that is about all the testimony we will want to offer. Mr. Dixon: We would like to have that; it is very, very material. The Court: Oh, yes, of course you can have it; — oh, yes, you can have it. Haven’t you got any other testimony? Mr. Dixon: Practically none.”

When court reconvened, the following, proceedings were had:

“Mr. Long: Dixie, this clerk won’t come over here; you heard the preliminary, didn’t you? Mr. Gilmer: No, sir, I didn’t try it. Mr. Long: We have set out in that affidavit what she testified to over there; will you permit us to1 introduce the affidavit? Mr. Gilmer: Let me see the affidavit. After reading the affidavit I won’t agree to it because I don’t know the facts set out in the affidavit. Mr. Long: Will you agree she would testify to it? Mr. Gilmer: I will see Mr. Conway, who tried the preliminary, if he remembers.. We will agree to anything we think she testified to. If your Honor will give me a minute or two I will go down and see Mr. Conway. The Court: Can you stipulate then what you could agree on? Mr. Gilmer: If I can talk to Mr. Conway just one minute, down in the office. The Court: All right, hurry back. Mr. Gilmer: I will be back in just! one moment, Judge.”

Upon! the return of the county attorney, this, evidence was not admitted, but the county attorney was permitted to reopen the case and put on an additional witness1, who was present at the time of the search.

It will thus be noted the defendant was forced to finish his trial in this case without having the benefit of the testimony of Ethel Adams, who it is admitted received the identical stolen property which the defendant is charged with receiving, and upon whose testimony the party who committed the larceny was convicted.

We have carefully reviewed this record and are of the opinion that the defendant was entitled to have this evidence. The evidence in this case against the defendant was very close. It is very doubtful if it was sufficient to convict the defendant of receiving stolen property. The evidence which he desired was not cumulative, but it was the only evidence defendant had to corroborate his own evidence. If the county attorney had permitted the reading of the testimony of Ethel Adams, taken at the preliminary hearing, it would have cured any error in the overruling of the motion for continuance, but, as stated above, we think in a case where the evidence was as close as it was here, the defendant was entitled to have the testimony of this witness. No doubt the previous record of this defendant went strongly against him with the jury in the consideration of this case, and for this- reason he was entitled to have the benefit of the evidence of the witness Ethel Adams.

Other assignments of error are urged, but it is useless to consider them in view of the position we have taken in this case. It is therefore ordered that the judgment of the district court of Tulsa county be reversed.

DAVENPORT, P, J., and DOYLE, J., concur.


author: DAVENPORT, P. J.

text:
    JAKE WORKMAN v. STATE.
    No. A-9237.
    July 9, 1937.
    (70 Pac. 2d 133.)

      J. R. Charlton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant in this case was charged by information with rape committed on the person of Lillie McCormick, a female not his wife, he being-over 18 years of age and Lillie McCormick being under the age of 14'.

The record discloses that on the 15th day of December, 1935, Lillie McCormick Avas living with the defendant, Jake Workman, and his wife, being related to them; that on said date the defendant took Lillie McCormick to Bartlesville for the avowed purpose of buying her some clothes; that the alleged rape took place on the road between the home of the defendant and the city of Bartles-ville.

Lillie McCormick, testifying, stated that on the Avay to Bartlesville the defendant turned off the highway on a road that went through1 a gate; that the gate was closed and the defendant did not get out and open it; she also stated that she did not go inside the gate. Later in her testimony she states that the defendant turned off in a little old place and went about a half mile off the high-Avay, and repeats they did not open the gate or go inside the gate. Lillie McCormick states that the defendant removed the cushion from the back seat of his Ford car and angled it in the back seat, then took her out and put her in the back seat, her pants were removed, and that the defendant there had sexual intercourse with her. Her statement is not very clear as to the efforts made by the defendant to place the cushion in position. She further states they went on to town and defendant bought the clothes for prosecutrix they had gone to town to buy; they returned to defendant’s home, she said nothing to any one as to what had taken place nor did she say anything to any one until after she had left the defendant’s home. She spent some time at her father’s home, not telling any one about it until after she had gone to the home of her aunt, the wife of Frank McCormick; it was more than 30 days from the date of the alleged offense before prosecu-trix mentioned it to any one.

The testimony of the prosecutrix is indefinite and uncertain except as to the actual fact of sexual intercourse.

Dr. Wm. Le Blanc, testifying for the state, stated he examined Lillie McCormick; that Mrs. McCormick came with her to his office.

“From my examination of the little girl I believe she had had sexual intercourse or some foreign object had entered her vagina. There Avas no contusion or darkening of the surface or bruises.”

Mrs. Pete McCormick, testifying for the state, stated' the prosecutrix was 13 years old.

“About October last year I learned Lillie was staying at the home of the defendant, Jake Workman. She came to my house the 26th day of January, 1936; in handling her clothing I found some discharge on her pants; I mentioned it to Lillie and she mentioned the name of Jake Workman in connection with it; she said Jake Workman used her; after that I took her to the doctor at Ochelata.”

The foregoing is the substance of the testimony of the state as to the charge of rape against the defendant.

The defendant denied that he had in any way whatever mistreated the young girl or that he had attempted or had had intercourse with her. He admits taking her to town to buy some clothes for her, as hi$ wife could not go ; that they bought the clothes and came back home.

The wife of the defendant states that when her husband, the defendant, and Lillie McCormick, the prosecu-trix, came back from Bartlesville, she examined the clothing they had bought for Lillie and she thought the clothing was too small for her. She took her into a bedroom adjoining the living room and put some of the clothing-on her; she examined' and washed the clothing of Lillie that she had taken off and there ivas no blood or anything unusual had happened.

The prosecutrix denies the statement of the wife of the defendant as to her being present in the bedroom when the clothes were changed, and stated that she went upstairs and changed her clothing without Mrs. Workman being present.

A witness by the name of Belding testified he was in the house at the time the discussion of the clothes came up between Mrs. Workman and Lillie, and that Mrs. Workman and the girl went into the bedroom and closed the door, and afterwards Lillie came out with some of the new clothes on.

Dr. John P. Torrey, testifying for the defendant, stated he was a physician; that he knew the defendant Workman, and he knew the county attorney, Mr. Harris. That at the request of the county attorney he examined the defendant and found no evidence that the defendant was afflicted with any venereal disease, and nothing to show that he had ever been afflicted with a venereal disease.

Dr. Elizabeth Chamberlain, testifying, stated she was a practicing physician. At the request of Mr. Harris she made an examination of the prosecutrix, Lillie McCormick, who was brought to her by a woman who said she was an aunt of the child.

“I did not inquire as to her name. Prom my examination I found the parts were normally pale, no redness or swelling, no discharge at the time. I took the usual slides for microscopic examination, that is, the cotton covered applicator, I got what I could from these parts; there was scarcely nothing except a few normal cells on the slide and a few bacteria that one would expect to find, that is, the condition you would ordinarily find in a normal girl of that age; no discharge of any kind or matter was found from my examination. I examined the hymen and found there was a membrane present.”

On cross-examination witness stated she could not tell from the examination whether the hymen had been partially or any way ruptured.

“It is possible that this girl may have had intercourse with some one last fall, November or December, and yet be in the condition I found her in April, 1936. It isn’t probable if the act of sexual intercourse was completed that she would be in the condition she was in when I examined her, and especially if she had had two operations it would not be probable.”

The defendant was convicted and sentenced to serve a term of 15 years’ imprisonment in the state penitentiary. Motion for a new trial Avas filed, considered, overruled, and the defendant appeals from the judgment and sentence of the trial court to this; court by petition in error, with case-made attached.

Seven errors are assigned by the defendant as grounds for a reversal. The first assignment is:

“Said court erred in overruling the motion of plaintiff in error for a new trial.”

All the other errors assigned are embraced within the motion for a new trial, and will be considered together, as the main argument of the defendant is that the testimony is insufficient to show that a crime has been committed.

It will be seen from the record that Mrs. Pete McCormick was not friendly with the defendant, and that after the prosecutrix left the Workman home she went home and stayed for a while with her father and stepmother, and then went from there to Mrs. McCormick’s, where it is claimed the little girl told her what had happened. The defendant stated that the only thing he could assign for Mrs. McCormick wanting to give him any trouble was that he was working and making a living for his family, and that Pete McCormick had failed to- get along as well as he had.

The testimony of Mrs. Workman showing there were no blood stains of any kind upon the clothing worn by the prosecutrix the day she made the trip to' Bartlesville, and the further testimony of the prosecutrix that she made no outcry and said nothing about what had happened until the latter part of January, and until she had gone to Mrs. McCormick’s, and the testimony of the doctors who examined the prosecutrix, which is not positive as to her having had sexual intercourse, casts a doubt on the statements of the prosecutrix that she had been raped, or had had sexual intercourse with the defendant. The indefinite and uncertain statements of the prosecutrix as to where the alleged rape took place along the highway, or near the highway between the home of the defendant and Bartlesville, raises a reasonable question as to whether or not the evidence is sufficient to' sustain a conviction and send a man to the penitentiary for 15 years, in view of the other testimony of reputable witnesses as to what took place after the defendant and the prosecutrix returned from the city of Bartlesville, and the condition of her clothing,.

There is no testimony tending in any way whatever to corroborate the testimony of the prosecutrix. In this case the testimony of the prosecutrix should be considered in the light of all the attending circumstances; these are few and perhaps not very significant, but after a careful reading of the testimony we think the circumstances and the statements of the prosecutrix being so indefinite, uncertain, and unreasonable as to' where and when the said rape took place, that they cast such doubt upon the credibility of her testimony that a conviction should not be permitted to stand. Her testimony is contradicted, and her subsequent conduct in not making a complaint as to what had taken place is wholly inconsistent with her direct testimony. When she returned home, Mr. Beld-ing and the wife of the defendant noticed nothing unusual in her appearance or the condition of her clothing. It is true a conviction of rape must rest largely upon the testimony of the prosecutrix, and direct corroboration is well nigh impossible to procure. However, where the charge is true there will almost always be some corroboration, such as an injury to the person or clothing of the prosecutrix, or that she made complaint as soon as practicable and without unreasonable delay, and it is always legitimate to consider prior and subsequent conduct of the prosecutrix as the usual and natural conduct of an outraged woman, as bearing upon the credibility of her testimony.

In Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466, 470, this court said:

“It is the natural impulse of every honest and virtuous female to flee from threatened outrage, and if assaulted to make complaint at the first opportunity, and where this is not done, and no reasonable explanation is made, it is a strong, but not a conclusive, presumption against the truth of the accusation.”

A charge of rape is one that arouses the passion and prejudice of the jurors, and for that reason it is the duty of the court to clearly scrutinize the evidence and where the evidence of the state is unreasonable, inconsistent, and contradictory, or indications are that the prosecution is maliciously inspired, the court should not permit a conviction to stand. A charge of rape is an accusation easy to be made, hard to prove, and harder to be defended by the accused, though ever so innocent. This court is not unmindful of the rule frequently announced by it that the weight of the evidence and credibility of the witness is for the jury, and the court will not reverse a conviction on conflicting evidence Avhere there is substantial evidence supporting it. Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788; Walker v. State, 20 Okla. Cr. 319, 202 Pac. 799; Sherman v. State, 20 Okla. Cr. 306, 202 Pac. 521; Ravenscraft v. State, 23 Okla. Cr. 361, 214 Pac. 946.

The foregoing rule is sound, as well as the rule that a conviction may be sustained by the uncorroborated statement of the prosecutrix. We have set out all the competent evidence disclosed by the record in this case showing the contradictory and unreasonable features of the evidence. It is our opinion that the conviction should be set aside. The judgment of the district court of Washington county is therefore reversed.

DOYLE and BAREFOOT, JJ., concur.