source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    A. T. WALKER et al. v. STATE.
    No. A-1258.
    Opinion Filed November 18, 1912.
    (127 Pac. 895.)
    1. COMMERCE — Subject to Regulation — Shipment of Intoxicating Liquor. Any person residing or being within that portion of the state of Oklahoma which formerly comprised Oklahoma Territory has a right to purchase in another state and have shipped to him in this state intoxicating liquors, and have such liquors delivered to his residence or place of business for his personal use or use of his family, and sue'k liquors are safe from interference by virtue of any state law until they reach their point of destination. This right is based upon and protected by the interstate commerce clause of the Constitution of the United States, and cannot be interfered with by any constitutional provision or law of any state.
    2. SAME. No person or combination of persons can lawfully ship into this state intoxicating liquors as interstate commerce and use the depot at which they are received as the point of their destination and as a warehouse for the general distribution of such liquors. Any such shipments are liable to seizure by the state officers and such persons are subject to prosecution and punishment for a violation of the laws of the state.
    3. SAME. For a statement of facts which sustain a conviction under the second syllabus of this case, see opinion of the court.
    4. . TRIAL — Presumptions and Burden of Proof — Suppression of Evidence. Where the 'state makes out a prima facie case against a defendant or defendants for a violation of the prohibitory liquor law, and there is any testimony in the qmssession of defendants which would constitute a defense to such case, the burden is upon such defendant or defendants to produce such testimony or to account for his or their failure to do so.
    5. PARTIES TO OFFENSES — Principals. All persons who act together in the commission of an offense are guilty as principals, and should be prosecuted and convicted as such.
    6. EVIDENCE — Acts and Declarations of Conspirators. Where two or more persons conspire together to commit an offense, all words spoken or acts done by either of such persons in pursuance of the common design to commit such offense are admissible in evidence against and bind all of such conspirators, it matters not whether they were present or had knowledge of the words spoken or acts done; provided only, that such words spoken or acts done were in pursuance of the common design of such conspiracy.

      7. EVIDENCE — Weight and Sufficiency — Circumstantial Evidence. In order to warrant a conviction upon circumstantial evidence alone, the circumstances proven and believed to be true by the jury must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence. When the jury find beyond a reasonable doubt that this condition exists, it is their duty to convict in such eases.
    8. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. Where it is shown that a defendant or defendants have obtained a United States license to sell intoxicating liquors, and they are found in possession of such liquors, this makes out a prima facie case against them, and, unless such prima facie case is rebutted, the jury is justified in convicting such defendant or defendants.
    9. SAME. The amount of intoxicating liquors found in possession of a defendant who is charged with having possession of the same with intent to violate the prohibitory liquor law is not in itself sufficient to support a conviction, but may be considered in connection with all of the other evidence in the case, and, when so considered in connection with such other evidence, it may assist to establish the intent of the person having possession of such liquors to violate the provisions of the prohibitory liquor law of the state.
    10. TRIAL — Verdict—Construction. Strict technical rules of construction should never be applied to the verdict of a jury. Their verdict should receive a common-sense construction, and, if it is possible to arrive at the intent and purpose of the jury, the verdict should be upheld. For a verdict which is held not to be bad for uncertainty, see opinion.
    (Syllabus by the Court.)

      Appeal from County Court, Pottawatomie County; Ross F. Lockridge, Judge.

      A. T. Walker and others were convicted of having in their possession intoxicating liquors with the intention of selling, bartering, giving away, and otherwise furnishing the same in violation of the prohibitory liquor law, and appeal.
    Affirmed.
    The appellants were charged with unlawfully having in their possession intoxicating liquors, to wit, whisky and beer, for the purpose and with the intention of selling, bartering, giving away, and otherwise furnishing the same in violation of the prohibitory liquor laws of Oklahoma.
    V. A. Vogal testified: That he was freight agent at the Missouri, Kansas & Texas depot at Shawnee, and had served in that capacity since December, 1909. That as such agent he had charge of handling the freight. That within 90 days prior to • March 4, 1911, as such agent, the witness had received at such depot about 400 cases of liquor consigned to John Hall. That there were four gallons of whisky to each case, as shown by the labels placed on them in compliance with the federal law. That the witness knows it was whisky because the bills of lading called for whisky. That during said time witness had also received at said depot 180 barrels of beer consigned to the said John Hall. That these barrels were larger than sugar barrels, and weighed each about 250 pounds. That there would generally be ten items on a waybill. The items would be in two-case lots, which would make 20 cases to one waybill. This whisky and beer was delivered to appellants or to their drivers, who were operating under .the name of the O. K. Transfer Company. The appellants would present bills of lading and then get the freight bill. The whisky was delivered to them on the freight bill. That some time in December appellant AValker came to the depot accompanied by a man who was represented to be John Hall. The man who was introduced as John Hall stated that he wanted to get busy with some liquor shipments, and wanted to know what the railroad company requirements were with reference to such shipments. AVitness informed said party that he would have to make an affidavit that he had no federal license, and had no application pending for such license, and that the liquor so shipped was for his own personal and family use, and was not to be used in violating the laws of Oklahoma. That appellant AAralker and the party represented as John Hall then left the depot, and said John Hall came back soon afterwards with the affidavit all made out. That the man said to be John Hall left the office, and witness did not know what became of him, but, before he left, he was informed that the liquor would not be delivered to appellants without an order from him each day, and said Hall stated he wanted the O. K. Transfer Company to handle the liquor for him. The appellants A1 AValker, Bill Eslick, and Sam Eeslie constituted the O. K. Transfer Company. That subsequent to said time, and before the 4th day of March, the railroad company had delivered to one of the counsel for appellants from 80 to 100 orders from John Hall for the delivery of liquor to appellants, which orders had been delivered to counsel for appellants to be filed in court, and witness does not know what has become of them. The witness does not know whether the lawyer for appellants to whom they were delivered filed them in court or not, or what had become of them. Witness has not seen them since. Over the objection and exception of counsel for appellants, witness was then permitted to state that each of these orders, in substance, contained directions to the railroad company to deliver his freight bill to appellants, and were signed by John Hall, and these orders were presented by appellants or by persons who were employed by them, and to whom the liquors were delivered. That the witness never saw John Hall but once. That witness has no knowledge of what became of the liquor after being delivered to appellants. That the wagons of appellants would hardly ever take less than two cases of liquor at a time, and sometimes would take 20 cases of whisky. At one time there was as much as 130 cases of whisky and ten barrels of beer in that depot consigned to John Hall. Witness does not know where John Hall lives, and is not acquainted with any member of his family, never saw him before he was brought to the depot and introduced to witness by appellant A1 Walker, and does not know his real name was John Hall, except that appellant Walker introduced him as John Hall. That witness has never seen said Hall since or any member of his family, or learned anything of his whereabouts. Witness never received any shipments of liquor to John Hall except that which was delivered to appellants. Each day witness required an affidavit to be filed that the liquor was for the personal and family use of John Hall, and would not be used in violating the laws of Oklahoma. The appellant Eslick brought most of these affidavits. He brought one every morning or every evening and that would last for the day’s shipment, and, when it was filed in the morning, he would get as many as 20 cases of whisky a day. That this liquor would be consigned to John Hall at Shawnee and that no liquor was received consigned to John Hall at any other point.

      T. A. Amos testified: That he was checking clerk in the freight depot of the Rock Island Railway Company at Shawnee. That some time in September or October, 1910, appellant Eslick came into the office with a man and introduced him to witness as Mr. John Hall. Hall stated to witness that he was going to locate in Shawnee, and possibly would have some business with the railroad company, and requested witness to explain the conditions under which the railroad company handled shipments of liquor, what the company required for the delivery of liquor, and wanted to know if he would have to come up and sign for every shipment. Witness explained'the regulations, and Hall said this would be all right, and gave witness his signature with an indelible pencil, and also pen and ink for record. Hall stated that he wanted the O. K. Transfer Company to handle the business for him; that he would sign up the affidavits and have the O. K. Transfer Company haul the liquor. Witness subsequently had a conversation with the defendant Eslick, and informed him that the railroad company had furnished witness a list of persons holding federal liquor licenses, and that witness had refused to allow Leslie, one of the appellants, to sign the waybill because he had seen the name of appellant Leslie on the list of persons holding federal licenses. That appellant Eslick then said: ‘T will sign them.'1 The waybills were signed “O. K. Transfer Company” by the person who received the liquor. Witness stated to said Eslick that he could not allow any of the waybills to be signed by any person who had his name on the list as holding a federal license, and stated to said appellant Eslick that, on this account, he was not willing to permit appellant Walker or appellant Leslie to sign any waybills for whisky, for both of their names were on the list furnished by the company as persons holding federal licenses. Appellant Eslick replied “all right”; that he would sign for such liquors. That this was just before the first shipments of liquor began to come in. Witness does not know where John Hall lives, and does not know whether he is a resident of Shawnee or not. That witness had never talked with any person who claimed to know John Hall except appellant Eslick. That. he had seen a number of affidavits signed “John Hall,” but did not see him sign them. He only knows a man was introduced to him by appellant Eslick as John Hall.
    W. E. Jones testified: That he was warehouseman of the Missouri, Kansas & Texas Railway Company at Shawnee. That prior to March, 1911, he had delivered to the O. K. Transfer Company in Shawnee shipments of whisky and beer, consigned to John Hall. That he knew the drivers of the wagons to whom the liquor was delivered, and they were in the employ of the O. K. Transfer Company. That once during this time the sheriff of Pottawatomie county was at the depot and a wagon belonging to the O. K. Transfer Company drove up to the depot. That the sheriff was in the depot at the time. That appellenant Leslie was on the wagon. The wagon was backed up to the depot. That appellant Leslie did not take anything off with him. That appellants had been in the habit of getting two or more cases of liquor at a time, sometimes more and sometimes less. Witness knew John Hall; was introduced to him by Sam Leslie, and that was the first acquaintance witness had with him. Witness does not know where he lives; was not acquainted with any of his family; does not know whether or not he resides in Shawnee; only knows that Sam Leslie told him the man’s name was John Hall.
    On the pivotal points in this case, the court instructed the jury as follows:
    “No. 13. You are instructed that if you believe from the evidence beyond a reasonable doubt that the alleged John Hall does not in truth or in fact exist, and that the said John Hall is a fictitious person, or if you find that he did in fact exist, but that he was brought forth and used by defendants in order that they might use his name for the purpose of assisting them in the unlawful delivery of whisky as a blind and subterfuge, then and in that event you should find the defendant guilty.
    “Given and defendants except.
    “Ross E. Lockridge, Judge.

    "No. 14. You are instructed, further, that if you find from the evidence that the liquor in question had no fixed destination - — that is, i± you find that the depot of the Missouri, Kansas & Texas Railway station at Shawnee was used for storehouse purposes — and that the whisky in question was kept and detained there from time to time and delivered from there to various points throughout the county of Pottawatomie or the city of Shawnee, and you further find that the destination to which the liquor was consigned was not the place of business or home of the said John Hall, should you find there is such a person as John Hall, then and in that event, if you find that the defendants knowingly assisted in receiving this liquor at the depot and delivered it to such places, you should find the defendant guilty.
    “Given and defendants except.
    “Ross F. Lockridge, J%idge.

    “No. 15. You are instructed that if the defendants, or any of them as partners or employees, entered into a general compact or plan, either express or implied, to receive beer and whisky or beer or whisky for John Hall, or any other person, and to aid or abet the said John Hall or such person in holding or having possession of the same in the county of Pottawatomie, Okla., with the intent to unlawfully barter, sell, give away, or otherwise furnish the same, with knowledge of such unlawful intent of said John Hall or such other consignee that each of said defendants entering such general compact or plan, or joining the same, whether as employee or partner thereto, with the knowledge aforesaid, would be a party to and liable for each and every act of the said John Hall, or of the other party to such general compact or plan, which would come within the scope of such general compact or plan, whether he directly committed such act or acts or whether present or absent.
    “Given and defendants except.
    “Ross F. Lockridge, Judge.”

    The appellants were found guilty. The jury returned the following verdict:
    “State of Oklahoma, Plaintiff, v. A1 Walker, Wm. Eslick and Sam Leslie. Verdict. We, the jury drawn, impaneled, and sworn in the above entitled cause, do upon o.ur oaths find the defendants guilty, as charged in the information, and fix their punishment by a fine of $500.00 and'imprisonment in the county jail for a period of 90 days.
    “G. C. Haley, Foreman.”

    Each of the appellants was sentenced to pay a fine of $500, and be imprisoned in the county jail for the period of 90 days. Appealed. Affirmed.

      Blakeney, Maxey & Miley, for appellants.

      Smith C. Matson and B. G. Spilman, Asst. At.tys. Gen., and C. P. Holt, County Atty., for the State.
   FURMAN, P. J.

(after stating the facts as above). Any person residing or being within that portion of the State of Oklahoma which formerly comprised Oklahoma Territory has the undisputed right to purchase in another state and have shipped to him in this state intoxicating liquors, and have such liquors delivered to his residence or place of business for his personal use or use of his family, and such liquors are safe from interference by virtue of any state law until they reach their point of destination. This right is based upon and protected by the interstate commerce clause of the Constitution of the United States, and cannot be interfered with by any constitutional provision or law of any state. See Roy Gastineau v. State, 7 Okla. Cr. 512, 124 Pac. 464, decided June 15, 1912. But this does not mean that any person or combination of persons can ship into this state intoxicating liquors as interstate commerce and use the depot at which they are received as the point of their destination, and as a warehouse for the distribution of such liquors, and that such shipments of intoxicating liquors are protected from seizure, or that such persons are exempt from prosecution and punishment for a violation of the state laws on this subject. Any such construction would be a gross perversion of the Constitution and laws of the United States.

The case now before us presents two questions: First, Did the intoxicating liquors handled by these appellants constitute a bona fide interstate shipment? Second, Was the home or place of business of the said John Hall the point of .their destination? The court clearly and fully instructed the jury as to the law on these questions. We seriously doubt if these instructions should have been given, because there is no testimony in the record which even suggests that the liquors handled by appellants constituted bona fide interstate shipments. A¥ho is John Hall? Pías he a family ? AVhere does he reside ? How did it happen that he needed over l,20jl gallons of whisky and over 180 barrels of beer for his own personal use or the use of his family within 90 days ? In what occupation is he engaged, and where is his place of business? Echo answers, Where? If these liquors constituted bona fide interstate shipments, the facts which would establish this were peculiarly within the knowledge of the appellants. It was therefore their duty, in the light of the evidence in the case, to offer this testimony to the court and jury. Even if ignorance of the law was an excuse, appellants are not in a condition to offer this as a matter of defense, because counsel who represent them are recognized as among the ablest in the state. If any such man as John Elall really existed, appellants should have placed him on the witness stand, or accounted for their failure to do so. If the liquors were purchased in good faith by John Hall, in view of the testimony for the state, appellants should have taken the depositions of the parties who made the shipments and proved by them to whom the sales were made, who paid for the liquors, who advanced the freight rates for the shipments on such liquors, and any other facts ^ tending to show the good faith of the transactions. It would be a reflection upon the intelligence and fidelity of counsel for appellants to presume for a moment that they did not know that this evidence would be important, if not necessary, to their clients. If such testimony existed, common experience teaches us that it would have been produced; yet we find that on these vital questions the record is as dumb as an oyster, and as silent as the grave. The failure of appellants to offer such evidence, in view of the nature of the testimony against them, amounts almost to a confession on their part that no such evidence existed, and that in truth and in fact the liquors handled by them did not represent bona fide interstate shipments, and that the entire transactions in which they were engaged only constituted a transparent and utterly indefensible device to evade and defeat the laws of Oklahoma. If such a man as John Hall really existed and resided in Shawnee, it is exceedingly strange that only three witnesses had ever seen him, and they did not know him of their own personal knowledge, but only from representations made to them by these appellants.

V. A. Vogle testified: That some time in December, 1910, appellant Walker came to the depot of the Missouri, Kansas & Texas Railway Company in Shawnee, and introduced to witness a stranger as being John Hall. Witness had no personal knowledge of said John Hall; did not know where he lived; was not acquainted with any member of his family; had never seen said party before or since or learned anything as to his whereabouts.

T. A. Amos testified: That in September or October, 1910, appellant Eslick came into the freight depot of the Rock Island Railway Company at Shawnee with a stranger, and introduced him to witness as John Hall. Witness did not know where John Hall lived, or whether he resided in Shawnee or had a home in Shawnee. That witness had never talked to any person who claimed to know John Hall, except appellant Eslick. He only knew that man was introduced to him as John Hall by appellant Eslick.

Witness W. E. Jones testified that a man had been introduced to him as John Hall by appellant Sam Leslie. Witness did not know where he lived, and was not 'acquainted with any member of his family. He only knew that appellant Sam Leslie told him that the man’s name was John Hall.

The record shows that on each day during which the transactions described • therein took place appellants delivered to the railway company an order purporting to be signed by John Hall for the delivery of intoxicating liquors received that day, and also an affidavit purporting to be executed by John Hall to the effect that such liquors were for his own personal use and use of his family, and were not to be used in violating the laws of Oklahoma. It therefore appears, according to the representations of appellants, that, as long as the existence of the said John Hall was necessary to enable them to carry out their plans, the said John Hall was a living reality, but that, as soon as appellants were called to account for their conduct, the supposed John Hall became as intangible and invisible as thin air. If they could daily produce an order and affidavit from him to enable them to obtain possession of the intoxicating liquors, how does it happen that when they are called upon to account for their conduct, and when the county jail and a severe fine is staring them directly in the face, the said John Hall vanishes from the scene of action like the baseless fabric of a vision? Who saw John Hall during all of this time ? Where and why did he keep himself concealed, and where is the notary public who took the acknowledgments to these affidavits? What has become of these affidavits? The state had a subpoena served upon the witness Yogle to produce at the trial of this cause all of the papers in his possession pertaining to this matter to be used as testimony in behalf of the state, but the witness turned a great number of these papers over to one of the counsel for appellants, as the witness says, to be filed in court, which was never done. Why was this not done? This cannot be considered otherwise than as a strong circumstance against appellants. We deem it due to state that the counsel who now represent appellants did not represent them in the trial court.

If the intoxicating liquors handled by appellants as the property of John Hall constituted bona fide interstate shipments, why was it that appellants did not prove by their wagon drivers that such liquors were delivered in good faith to the home or place of business of the said John Hall? Why this secrecy and this concealment ? How can it be said that innocent men, with almost certain conviction staring them in the face, could have such evidence in their possession and neglect, fail, and refuse to present it? Their neglect in this respect is a most convincing circumstance against them. Again, if appellants did not know that they were violating the law, why did they not deliver all of the liquors received in one day in one load? Why did they make five or ten loads out of what they could and should have hauled in one load? Were they trying to rob John Hall by multiplying the trips, or were they trying to defeat the law? The jury took the latter view of the matter, and we cannot say that there is no evidence to support their verdict.

If the appellants were engaged only in handling bona fide interstate shipments of liquors to the home or place of business of John Hall, why was it necessary for appellant Walker and Leslie to obtain a United States license to sell intoxicating liquors? The appellants were all engaged in a common design to accomplish a common purpose, and, when appellant Eslick was informed that his codefendants Walker and Leslie would not be permitted to sign for the liquors they received because they and each of them had a United States license _for the sale of intoxicating liquors, appellant Eslick not only did not deny the charge, but acquiesced in it, and said he would sign for such liquors. Under these conditions, the statement of Eslick bound his associates, for it is the law that, where two or more persons engage in a common design to do an unlawful act, they are all responsible for what is said and done by their co-conspirators in pursuance of this common design to effect a common purpose. See Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. Conspiracies to violate the law are always secret, and every effort is made at concealment. Therefore, such conspiracies can only be proven by circumstantial evidence.

The evidence brought knowledge squarely home to Eslick that those with whom he was acting in pursuance of a common design were charged with being in possession of a United States license to sell liquor. To say the least of it, it then became the duty of these parties to offer some testimony either denying or explaining this matter. Notice to Eslick was notice to Walker and Leslie, with whom he was acting. Men can bind themselves with conduct as well as by words. In fact, it is an old adage that actions speak louder than words. Silence gives consent. This is especially so where the circumstances are such that a reasonable man would speak out and deny a charge if it were not true. Admissions against interest often constitute the highest and most incontestable character of legal evidence, and obviate the necessity of offering direct evidence as to any question or fact which is tacitly admitted either by language or conduct. The fact that appellants knew that the railroad company would not permit Walker and Leslie to sign for and receive the liquors upon the ground that such conduct would be illegal"because of their possession of a United States license to sell liquor, and the want of denial or explanation on their part to this charge, amounts almost to a confession of guilt. The fact that there is no testimony that Eslick had a United States license to sell intoxicating liquor cannot avail him, for persons who knowingly act with those who are violating the law are just as guilty as those with whom they act. This fact, in connection with their possession of intoxicating liquors, made out a prima facie *case against them. They of fer no explanation to this prima facie case. Conscious guilt is the only reasonable explanation of their failure to offer any evidence in their defense. If such evidence existed, it was within their power to produce it. Their failure to do so amounts almost to a plea of guilty. It fully warranted the jury in finding a verdict of guilty, and this court would stultify itself in setting aside a conviction supported by the evidence in this record and to which no defense has been made.

In connection with the other facts in this case, the amount of liquors handled by appellants during this time creates a very strong presumption against them. In the case of Johnson v. State, 6 Okla. Cr. 491, 119 Pac. 1019, this court said:

“We are of the opinion that the amount of intoxicating liquor found in possession of a defendant is a proper circumstance to be considered by the jury in connection with the other facts and circumstances of a case in determining as to whether or not it was the intent of the person having possession of the liquor to illegally dispose of the same in violation of the prohibitory law of the state, but this circumstance alone cannot support a conviction.”

There are a number of other incriminating circumstances in evidence against the appellants, all of which, taken together, are incapable of explanation, except upon the ground that they are guilty. The rule in cases of circumstantial evidence is that, in order to warrant a conviction, the circumstances proven and which are believed to be true by the jury must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence, and, when this condition exists, it is •the duty of the jury to convict. See Ex parte Jeffries, 7 Okla. Cr. 544, 124 Pac. 924. It is inconceivable that men would fail to offer any testimony in explanation of the circumstances in evidence against them in this case, if the circumstances were capable of explanation, consistent with their innocence.

Third. Appellants contend that the verdict in this case is void for uncertainty, in that it does not appear which one of the appellants the jury intended to convict, or as to whether the jury intended the punishment to be joint or several. The verdict is as follows:

“The State of Oklahoma, Plaintiff, v. A1 Walker, Wm. Eslick and Sam Leslie. Verdict. We, the jury drawn, impaneled, ánd sworn in the above-entitled cause, do upon our oaths find the defendants guilty, as charged in the information, and fix their punishment by a fine of $500.00 and imprisonment in the county jail for a period of 90 days. G. C. Halley, Foreman.”

We do not think that the contention of counsel for appellants is tenable. The appellants were all jointly charged, prosecuted, and tried together, and the court instructed the jury that they might convict or acquit any one or all of the appellants, and that it was their duty to acquit any one of the appellants as' to whose guilt they entertained a reasonable doubt, and to convict only those of the appellants whose guilt was established by the testimony to their satisfaction beyond a reasonable doubt. In the caption of the verdict, the name of each appellant appears, and the verdict is against the defendants in the above-entitled cause. This makes the title of the casé a part of the verdict. We think that from the entire record there can be no question but that the jury intended to convict each one of the appellants. There is nothing in this record to raise a reasonable doubt upon this subject. There are no degrees in the offense of which the appellants were convicted, and there can be no such a thing as a verdict in a criminal case assessing a joint punishment under our law against two or more defendants. We are aware of the fact that some courts have decided that a verdict such as the one before us is bad for uncertainty, but this court is not hunting excuses to set aside verdicts of juries and judgments of courts to turn guilty men loose. But, on the contrary, we believe that a technical construction should never be placed upon the verdict of a jury, but that it should receive a common-sense construction, so as to enforce the evident purpose of the jury.

We are not without authority in support of our views on this matter. In the case of Mootry & Rolly v. State, 35 Tex. Cr. R. 450, 33 S. W. 877, 34 S. W. 126, the appellants were jointly tried and convicted of the crime of murder. The verdict was:

“We the jury, find the defendants, Mat Mootry and Albert Roily, guilty of murder in the first degree, as charged in the indictment, and assess their punishment at death.”

The court said:

“There is no set form or words in which a verdict is required to be written. Therefore, the only rational general rule that can be adopted by which to measure its sufficiency is, Does it show clearly, and without any doubt, the intention of the jury, and their finding on the issues presented to them? If it does, it cannot be declared bad without sacrificing substance and justice to form. No error that is not a violation of some positive rule of law, which may possibly prejudice the defendant, can be a ground for reversal on appeal. See State v. Ryan, 13 Minn. 374 (Gil. 343). No one on reading said verdict would question for a moment that the jury intended thereby to assess the punishment of each of said defendants at death, and the language used, to our minds, imports that idea, and is inconsistent with any other reasonable construction; and, entertaining that view, we hold ihe verdict good, as finding each of the defendants guilty of murder in the first degree, and assessing the punishhment of each at death.”

We also find in the case of Polk & Watts v. State, 35 Tex. Cr. R. 495, 34 S. W. 633, a case directly in point. The defendants were jointly indicted for murder. The verdict of the jury was as follows:

“We, the jury, find -the defendants, Biz Watts and Austin Polk, guilty of murder in the first degree, and assess their punishment at life imprisonment in the state penitentiary.”

The opinion is by Judge Plurt, and the judgment of the lower court was affirmed without argument.

The case of J. F. Davidson & J. B. Thompson v. State, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365, is also in point. In that case the appellants were jointly indicted, charged with theft of one head of cattle. The verdict was as follows:

“We, the jury, find the defendants’ plea of former conviction untrue, and find them guilty as charged, and assess their punishment at two years’ confinement in the state penitentiary. R. H. Hervey, Foreman.”

In considering this case the court said:

“Whatever may have been the rule heretofore in reference to the construction of verdicts of this character, we hold that such a verdict as the one rendered in this case is not now subject to the criticism made to the same by appellants’ counsel. As stated by the court in the case of Mootry v. State, 35 Tex. Cr. R. 457 (33 S. W. 879) : ‘That is certain which can be made certain.’ A bare inspection of the verdict in this case shows that the jury intended to assess a punishment of two years’ confinement in the penitentiary against each of the appellants. The judgment rendered thereon is in direct response to that verdict. In the Mootry case, supra, the verdict there rendered was death upon Mootry and Roily; but we understand the effect of the decision in that case is to overrule the previous decisions of this court, holding verdicts of a similar kind to the one here under discussion void. A fair construction of the verdict in this case will indicate that the jury intended to inflict upon each of the appellants the punishment of two years’ confinement in the state penitentiary. In the consideration of a verdict, the first object is to ascertain what the jury intended to find; and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleading. Miller v. Shackleford, 4 Dana (Ky.) 271; May v. Lewis, 4 Tex. 38. And, where the intention of the jury is to be considered, it becomes the duty of the court to disregard a mere clerical error. Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128. The reasoning in the Mootry case, supra, is cited with approval in the case of Polk v. State, 35 Tex. Cr. R. 495 (34 S. W. 633). We cannot agree with the contention of appellant’s counsel that the verdict of the jury is void, as contended in their motion for rehearing.”

We also find the case of Alejos Garza et al. v. State, 43 Tex. Cr. R. 499, 66 S. W. 1098, in point. In that case three appellants were jointly indicted, prosecuted, and convicted for theft of cattle. • The verdict of the jury was:

“We, the jury, find the defendants guilty as charged in the indictment, and assess their punishment at three years’ confinement in the state penitentiary.”

The court said:

“The verdict of the jury found defendants guilty, and assessed their punishment at three years’ confinement in the penitentiary. The court entered judgment on this verdict of three years against each of the defendants and so pronounced the sentence. Exception was reserved to this on the theorry that it was a joint verdict, and not a separate verdict, as to each. Some of the older cases so hold, but this has not been the rule since the case of Mootry v. State, 35 Tex. Cr. R. 457 (33 S. W. 877); Polk v. State, 35 Tex. Cr. R. 495 (34 S. W. 633). And especially see Davidson v. State, 40 Tex. Cr. R. 285 (49 S. W. 372, 50 S. W. 365).”

We could cite a great number of authorities to the same effect, but will confine our citations to the Texas court alone, as that court is universally recognized as the most technical court in the United States in behalf of defendants.

Upon a review of the entire record, we have no doubt but that the jury has arrived at the proper verdict in this case; that, while some of the instructions of the court may not be above criticism, yet, as the verdict is right upon the entire record, the judgment of the lower court will be affirmed.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.


author: DOYLE, P. J.

text:
    ALVERTA B. GENTRY v. STATE.
    No. A-1816.
    Opinion Filed March 3, 1915.
    (146 Pac. 719.)
    1 APPEAL — Discretionary Ruling — Change of Venue. A petition for a change of venue is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue.
    2. VENUE — Change of Venue — Discretion. It is not an abuse of discretion to deny a petition for change of venue in a capital ease, which was based on the alleged prejudice in the minds of the people of the county, caused by the publication in certain newspapers of prejudicial accounts of the murder, such newspapers having a large circulation in tlie county, where the prima facie ease made by the affidavits filed by the defendant is fully answered and clearly overcome by the counter affidavits filed by the state.
    3. APPEAL — Discretionary Ruling — Continuance. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the refusal to grant a continuance.

      i. CONTINUANCE — Grounds—Discretion. It is no abuse of discretion to overrule an application for continuance on the ground of absence of witnesses, who are out of the state, where it is not shown that any one of them would or could be procured within any reasonable time, and where no diligence is shown to procure their' attendance, or to take their depositions, and where their alleged testimony, considered in connection with other facts proven on the trial, appears to be probably untrue.
    5. JURY — Disqualification of Juror — Validity of Statute. Procedure Criminal, see. 5861 (Revised Laws 1910), providing that “no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, -founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him,” is not unconstitutional.
    6. SAME — Appeal—Discretionary Ruling — Challenge <to Juror for Cause — Opinion. The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed or expressed an opinion as to the issues to be tried, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by an appellate court, unless it appears upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.
    7. SAME — Grounds. The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed by an appellate court, where it appears from the examination of such juror, that he had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers, and that he had no opinion other than that derived from reading newspapers, and that he was positive that he could disregard that opinion, and try the ease solely upon the evidence, fairly and impartially.
    8. HOMICIDE — Murder—Sufficiency of Evidence. In a prosecution .for murder, the evidence examined and held sufficient to support a conviction without the death penalty, and that no prejudicial error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; A. H. Huston, Assigned Judge.

      Alverta B. Gentry was. convicted of murder, and she appeals.
    Affirmed.
    The plaintiff in error, Alverta B. Gentry, and Maurice Weightman and Jess K. Mackey were charged jointly with the murder of Thomas J. Géntry, alleged to have been committed in Oklahoma county, on the 6th day of January, A. D. 1912, by shooting with a pistol. Upon her separate trial she was found guilty of murder, and her punishhment fixed at imprisonment in the penitentiary for life at hard labor. A motion for a new trial was duly filed, which was overruled, and on the 15th day of March, 1912, judgment was rendered in pursuance of the verdict. To reverse the judgment, an appeal was taken by filing in.this court on August 19, 1912, a petition in error with case-made.
    The evidence shows, or tends to show, the following facts:
    On Sunday morning, January 7, 1912, the dead body of Thomas J. Gentry was .found in a chair in the front room of his home. A post mortem examination disclosed that a pistol ball had entered at the back of the head about an inch below the crown.
    Thomas J. Gentry, the deceased, and Alverta B. Gentry, the plaintiff in error, had been married about six years at the time of the tragedy, and were living at that time in the 1500 block, Linwood Boulevard, in Oklahoma City; his place of business being 519 North Broadway. Defendant Maurice Weightman is a brother of the plaintiff in error.
    Jess K. Mackey and Maurice Weightman were friends and associates, and were frequently together in the Gentry home. It appears that Mackey became the paramour of Mrs. Gentry, and during the year 1911 they had numerous clandestine meetings for the purpose of illicit intercourse, and frequently took trips to neighboring towns and remained for days at hotels; that Mrs. Gentry paid the expenses of these trips; that her infatuation for Mackey became so intense that she determined to get rid of her husband, and several witnesses testified that she said she was either going to get rid of him or get a divorce from him. In November, 1911, Mrs. Gentry and Mackey and one Billy Lee met at a hotel in Oklahoma City, and, after drinking some beer, Mrs. Gentry and Mackey discussed plans with reference to the disposition to be made of Mr. Gentry. A few days later the same parties met on the street corner near the Gentry home, and this subject was discussed. Mrs. Gentry stated at that time that she intended to hire a boy, formerly an employee of Mr. Gentry, to kill him; that she was going to do this because Mr. Gentry was unkind to her and she was in love with Mackey. She further stated that she thought it was better for Mackey to leave the city while she procured this boy to kill Mr. Gentry. Shortly afterward Mackey left Oklahoma City and went to Taylor, Tex., and remained there a month. While he was there Mrs. Gentry wrote him several endearing letters, and talked to him over the long distance telephone, and sent him money to pay his return car fare. In those letters she told Mackey that the 3?oung man who was to do the work had left the city, and asked Mackey to return at once. About the 8th of December, 1911, Mackey returned, and went immediately to the Gentry home, and their illicit relations were again renewed.
    On the evening of the 8th day of December, Mrs. Gentry, Mackey, and Weightman were at the Gentry home, and went from there to East Sixth street. Mackey and Weightman left East Sixth street and went to West Main, and met a man by the name of Wyont. Weightman purchased some whisky and returned to the barber shop where he had left Mackey and Wyont. Weightman at that time had an automatic revolver in his pocket, the propeiW of Mr. Gentry. These three had a conversation, in which Weightman requested Wyont to go with him and Mackey to the corner of Fifth and Braeur streets, which is one-half block east of the Gentry home, and stated that at that place when Gentry came home they could shoot him. Wyont refused to go. Weight-man and Mackey proceeded to Fifth and Braeur streets, and then went to the Rock Island depot to meet Mrs. Gentry, as they agreed they would do when they left her on East Sixth street earlier in the evening. When they met Mrs. Gentry they told her they had not seen Gentry and consequently could not kill him. Thereupon, Mrs. Gentry suggested to them that they go up to the shop on North Broadway and kill him there, and that she would go to the terminal station and wait for them. Weightman and Mackey went to the shop, but Mr. Gentry was not there, and they returned to the terminal station and told Mrs. Gentry that he was mot at his place of business. Weightman there left them, and Mackey went home with Mrs. Gentry. After this date Weight-man and Mackey met Mrs. Gentry daily at the Gentry home, and about this time Mrs. Gentry requested two parties to purchase some whisky for her, and she purchased some whisky and placed poison in it and set it in the kitchen cupboard so that Mr. Gentry would drink it, and shortly afterward Mrs. Gentry and Mackey went to Chickasha, and she told Mackey that she had that morning disguised herself in boy’s clothes and gone to a negro druggist on East First street and bought some poison and placed it in a ■bottle of whisky and put the whisky where Gentry would see and drink it, and for this reason she wanted to go to Chickasha, and wanted Mackey to accompany her, so that they would not be suspicioned if Gentry drank the whisky. They stayed at the Elliott Hotel, in Chickasha, for two days, registered as man and wife. Mackey then returned to Oklahoma City, and immediately saw Weightman, who was running a cigar stand on Grand avenue, and Weightman told him that he had been unable to get Gentry to drink any of the poisoned whisky, and asked Mackey if he could get him some poison so that he could place it in Gentry’s food to kill him that way. On January 2nd, Mrs. Gentry returned to Oklahoma City, and, instead of going to her home, she went to the Parkinson Hotel, and stayed that night with a man by the name of Pickron, and the next day returned to her home. On that day Weightman and Mackey went to a drug store on East Grand avenue which was run by a negro, and Weightman bought some arsenic, telling the druggist that his sister had sent for it. From the drug store these two went to Norton’s Grocery, in the western part of the city, and Weightman bought some milk and other eatables, and had them charged to Mr. Gentry. From Norton’s store they went to the Gentry home, and Weightman put the arsenic in some milk and set the bottle on the back porch. Mrs. Gentry, on January 3rd, stated to the witness Pickron that she found the milk there, and it had arsenic in it. On January 4th, Mrs. Gentry, Weightman, Cleve Wyont, and Mrs. Jack Besse, a cigar girl in the employ of Weightman, met at the Gentry home, and Mrs. Gentry asked Wyont to procure her a bottle of whisky with the seal unbroken. Mrs. Gentry and Wyont drove downtown from the Gentry home and met Mackey, who returned with her to her home, and she then told Mackey that she intended to put poison in some whisky in such a way that Gentry would not suspect anything and would drink it. The next day, Saturday, she, Mackey, and Weightman were at the Gentry home, and while there Wyont came to deliver groceries and Weightman said with an oath that Gentry had slept with one eye open all night. In the afternoon Mrs. Gentry and Mackey went to a picture show and returned to the Gentry home. Weightman was there, and these three discussed how they could kill Mr. Gentry and avoid apprehension. After which discussion they agreed to go downtown early in the evening, and Mrs. Gentry took her five year old boy to a nearby neighbor to stay all night. Then she and Mackey went downtown together, and Weightman followed later. Mrs.. Gentry and Mackey went-to the Ferris Hotel and registered as man and wife. After staying there 15 or 20 minutes they went to the post office, where they had agreed to meet Weightman. Fie soon appeared, slightly intoxicated, and Mrs. Gentry said, “Flave you procured your room,” and Weightman said, “No; I spent my money for whisky; if I have to do the killing I want to have some nerve.” Then they agreed to go to the Gentry home. Mrs. Gentry and Weightman went together, and Mackey followed later. There they began to discuss how they should execute this murder. Both Mrs. Gentry and Weightman claimed the privilege, so they drew straws which Mrs. eGntry prepared to decide which should shoot Mr. Gentry, and Weightman drew the-fatal straw. It was then agreed that it would be best for it to appear that the house had been burglarized, and they proceeded to ransack the trunks, dressers and other .furniture, so that the place would have that appearance. To further cast suspicion from themselves, they agreed to make some eggnog and to stain two glasses, so that it would appear that two persons had been drinking eggnog there, and then Mrs. Gentry suggested that perhaps it would be better to make it appear that Mr. Gentry was with a woman in his home that night, and she then rumpled the bed and put one of her back combs under the pillow of the bed, so that it would indicate that a woman had been in the house that night. It was then about 10 p. m. Shortly after, Mr. Gentry came home. When he entered the front door Mackey went out the back door. Mr. Gentry sat down in a rocking chair to read his paper, as was his custom, and Weightman, standing behind him, fired the fatal shot, the bullet entering the back of his head. When he heard the report of the gun, Mackey went into the house, and Mrs. Mackey remarked, “We had better get out of here as quick as possible.” They went out the back door and went south a block or two, then east, then south, and at the corner of Third and Douglas streets Wteightman threw the pistol under a culvert. By some means or other the gun fired as it was thrown under there. It was then about 11 o’clock, Saturday night, January 6th. The pistol was found there the next morning. From there the three went south to Western and Main, where they boarded a car returning to .the terminal. Ollie Estes, a policeman, was on the car, and spoke to Mackey. Mrs. Gentry and Mackey went to their room at the Ferris Hotel, and Weightman followed lo or 20 minutes later, and occupied an adjoining room. The next morning they went to a restaurant and got breakfast, and then Mrs. Gentry boarded a Linwood car, and arrived home about 9 o’clock Sunday morning, and gave the alarm that her husband had been murdered.
    It is shown that upon her entrance to the home that morning she discovered the comb in the bed, and discovered that the diamond stud which her husband was accustomed to wear was gone. When friends of Mr. Gentry came she told them that she had stayed at her father’s that night, but, when confronted with the positive evidence that the state could show her whereabouts that night, she stated to the officers that she and Mackey went downtown early in the evening to the Ferris Hotel, and from there to the picture shows, and then thy returned to the Ferris Hotel. It appears that Mrs. Gentry had her husband’s diamond in her possession at the Ferris Hotel on this night after the murder was committed.
    The defendant Jess K. Mackey was granted immunity, and testified as a witness for the state.
    The foregoing summarizes the testimony of 50 witnesses for the state.
    For the defense, the defendant Maurice Weightman took the stand as a witness, and testified:. That' he was 18 years of age. That on the occasion he and Mackey left Wyont to go to the Gentry home Mackey asked to let him see the pistol, and he took it and put it in his pocket. When they got to Sixth and Western, Mackey stopped and said he was going to wait there until Gentry came home. That he asked him what he meant, and Mackey said: “I will get him here,” and he said to him: “Not while you are with me you won’t; you come on and go back to town with, me,” and they returned downtown. Then they went from the Rock Island depot to Mr. Gentry’s place, witness expecting to get some money from Mr. Gentry. That there was no agreement in the presence of the plaintiff in error that they were to go to Mr. Gentry’s place and there murder him. That he purchased arsenic at the Bethel Drug Store for Mackey. That he asked Mackey what he wanted it for, and Mackey said he wanted it to kill rats. That on the night of the murder, about 7 o’clock, he left the Gentry home with Mackey and Mrs. Gentry, and took a street car for downtown. That he got off the car at the corner of Main, and Hudson. That about 9 o’clock he met Mackey at the White Way Pool Hall, and Mackey said, “We will go out to Gentry’s and get some whisky,” and they went out to the Gentry home, and climbed in the window, and Mackey made some eggnog, and they drank it. After they had been there about 20 minutes, Mr. Gentry came in and took his revolver out of his coat pocket and laid it on the table, and sat down in a chair with a newspaper ire his hand, and said to Mackey, “Jess, what are you doing out here?” and Mackey said, “I come out here with Maurice,” and Mr. Gentry said, “I want you to go away from here and stay away from here; I have found you out ;• I don’t want you to come around here any more,” and Mackey said, “Mr. Gentry, my overcoat is there on the davenport; can I get it?” and Mr. Gentry said,.“Yes; get it and get out of here.” That witness was in the kitchen and heard a pistol shot. That he ran and asked Mackey, “What have you done?” and he said, “I have killed the son of b-h.” That witness went out the back door and ran nearly all the way to his father’s home, and there went to bed. That his father called him to answer the telephone, and Mackey said to him over the phone: “Come downtown right away; I want to see you. Come to the Ferris Hotel; come to room 2; Mrs. Gentry is here.” That he went to the Ferris Hotel, and registered, and was assigned room 4. That Mackey came into the room and told him that Mrs. Gentry was in the adjoining room, and told him not to tell her anything about what had happened, and he promised Mackey he would not say anything about it. That Mackey told him that he had turned out all the drawers and scattered things around and took Mr. Gentry’s diamond and threw it in the sewer. That Mrs. Gentry came into'the room and asked, “What have you two kids been into?” That Mackey stayed with him in room No. 4.
    The plaintiff in error, as a witness in her own behalf, denied any knowledge of the murder; testifying that on the evening of the murder, after leaving her home with Mackey and her brother, she went with Mackey to the Ferris Hotel, and he got a room, and they stayed there about SO minutes; that they then walked to the post office and talked a while, and Mackey said he was going to the White Way Pool Hall, saying that he would see her at the Ferris Hotel at 9 :30; that later she went to the hotel and went to the room, and then came downstairs, and then went to the Orpheum, and there met Zelma Tucker and Mrs. Tully. When the show was over these ladies went with her to the terminal. It was then about 11 o’clock. She then took a street car for home. When the street car reached-Finwood and Braeur, she got off the car and started to walk home, and passed a man. As she passed him the man said, “Is that you, Bess?” and she said, “Yes,” and stopped, and the man was Jess Mackey. He said, “Where are you going?” She said, “I am going home.” He said, “Well, you come on back downtown with me.” She said, “No; I am not going to do it; you lied to me,” and he said, “Yes; you come and go back with me; the gas is out; there is'no light there; you will freeze to death; come and go back to the hotel with me,” and finally she said, “All right,” and they started down to the corner. She said, “Let’s wait for the car,” and he said, “No; come on, and let’s go over and catch a Main street car.” So they started down Brauer to Sixth street, and there turned and went one block east, and then south from there. When they had gone two or three blocks, she heard something' like a pistol shot, and said, “What on earth was that?” and Mackey said, “You come on here; I know what I am doing; you come on and go with me.* So they went to the corner of Grand and Hudson, and then went to the Ferris Hotel, and there Mackey telephoned to her brother Maurice, and in about half an hour her brother appeared. That she occupied room 4. She denied that she had ever threatened to kill her husband. Cross-examined: Did not know exactly how much lifei nsurance her husband had, $3,000 or $4,000, something like that, and she thought she was the beneficiary, and could not approximate the number of times she and Mackey were criminally intimate.
    J. T. Weightman testified: That he was the father of Alverta B. Gentry and Maurice Weightman. That on the night of the 6th of January his son Maurice came home about half past 11 o’clock, and went to bed. About 15 minutes after he came in the phone rang, and witness answered. The questions were: “Is Maurice there; I want to speak to him?” Witness asked: “Who is this?” The answer was: “Jess Mackey.” Then he called his son Maurice to the phone, and soon after his son Maurice left the house.
    The case-made contains about 1,200 pages, but the foregoing statement of facts is sufficient for the purpose of this opinion.

      Moman Pruiett, Ben F. Williams, Selwyn Douglas, E. G. Wilson, and Victor A. Sniggs, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Sam Hooker, of counsel), for the State.
   DOYLE, P. J.

(after stating the facts as above). Reviewing the assignments of error relied upon for a reversal of the judgment in their natural sequence, rather than in the order of their presentment in argument, the first question is: “Did the court err in refusing to grant a change of venue?” The application was supported by the affidavits of the plaintiff in error and 30 residents of Oklahoma county. The ground set up in the application was that the minds of the inhabitants of Oklahoma county are so prejudiced against the defendant that she cannot obtain a fair and impartial trial in said county. It was also averred in her affidavit that the deceased was very popular, and had an extensive acquaintance throughout the city and county, and was a prominent member of several . fraternal societies, and was a thirty-second degree member of the Masonic order, and that the membership, as individuals of the Masonic order of the city and county, had become and are a strong and insurmountable influence-in the city arid county against the defendant; that certain newspapers published in Oklahoma City had published prejudicial accounts of the tragedy, and, as they had a large circulation in Oklahoma county, by reason of such publications the minds of the inhabitants of the county were prejudiced against the defendant. Said newspaper reports were attached to, and made a part of, the application.

The state, resisting the application, filed affidavits of the county attorney and his assistant, having personal charge of the prosecution, stating, in substance, that no member of the Masonic fraternity, or any other fraternity, had ever consulted them in any way concerning the case; also the affidavit of the clerk of the county court, showing that two of the defendant’s supporting affiants had been convicted of violations of the prohibitory laws, and another had a similar charge pending in said court. There was also filed more than 100 affidavits of citizens of the county, each affiant stating that:

“In his opinion, there does not exist in the minds of the inhabitants of said county any bias or prejudice against said defendant, and that an unprejudiced, fair, and impartial jury can be obtained from the resident taxpayers of the county for the trial of said cause, and that affiant is not a member of any Masonic fraternity or affiliated therewith.”

The defendant filed a motion to strike from the hies and records all controverting affidavits hied on the part of the state, on the ground that the same are not controverting affidavits within the meaning of the statute. Which motion was overruled. Thereupon the defendant filed a motion asking that a subpoena be issued for each of the persons who made said affidavits on behalf of the state, and that the court make an order requiring said persons to appear and testify in open court as to matters and things set out in their respective affidavits. Said motion was overruled.

Plaintiff in error contends that the court erred in denying the aforesaid motions.

We think that the motions were properly denied. The statute provides that a change of venue may be had in any criminal cause pending in the district court on the application of the defendant by petition setting forth facts verified by affidavit, and the truth of the allegations in such petition to be supported by the affidavits of at least three credible persons who reside in said county. It further provides that:

“The county attorney may introduce counter affidavits to show that the persons making the affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application.” (S'ection 5811, Rev. Raws 1910.)

Here there was no dispute in regard to the publication of the newspaper articles, but the question was whether these articles had produced a prejudice in the minds of the inhabitants of the county against the defendant. If they had, she would be entitled to a change of venue. If they had not, it was the duty of the court to deny the application.

The affidavits filed by the state in denial of the allegations of the petition tended to show that there was no such state of feeling generally prevailing throughout the county as would prevent the defendant from having a fair and impartial trial therein, or would even make it difficult to obtain an impartial jury for the trial.

It has been the uniform holding of this court that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue. Following the decisions in Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816, and Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164, we are of opinion that there was no error in refusing a change of venue.

The second question is: Did the court err in refusing to continue the case? One ground stated in the affidavit for a continuance is the absence of material witnesses, Elma A. Tucker, Mrs. J. A. Tully, Maud Tatum, and Sinna Thedford, without whose evidence it is alleged the defendant could not safely proceed to trial. The other portions of the affidavit of the plaintiff in error state, in substance, that said Elma A. Tucker was duly served with a subpoena, but said witness, without the knowledge and consent, connivance or procurement of this defendant, has departed to parts unknown; that she has been unable to ascertain the whereabouts of said Mrs. Tully; that said Maud Tatum lives on Dive Oak street, Dallas, Tex., and said Sinna Thedford lives on Calhoun street, Ft. Worth, Tex.; that said witnesses, if present, would testify that they knew Mrs. Gentry, and they saw her about 9 :30 p. m. on January 6, 1912, at the Ferris Hotel, and later at the Orpheum Theater, and were with her at the terminal station that evening at 10 :45 p. m., while she was waiting for a Linwood car; that she employed detectives to try to locate said witnesses, and the evening before the case was called for trial was the first time her counsel was informed of the address of the two witnesses last named.

Another ground relied upon in the affidavit for continuance was that Ben F. Williams, one of her counsel, was absent at the bedside of his father, who was then dying in the city of Clinton, Okla., and that she had contracted and given all her property to the said Ben F. Williams and Moman Pruiett to obtain their services in her behalf; that the said Ben F. Williams was present at, and took an active part in, the preliminary trial. It appears from the record that Mr. Williams returned to Oklahoma City before the first witness was called by the state and appeared as counsel throughout the trial.

Continuances ought always to be granted when, from the showing, justice requires it to be done, and to enable the defendant to procure all legal and competent evidence necessary for a fair presentation' of the defense, where due diligence to obtain the same has been shown.

In this case the murder was committed on January 6th, and the next day the defendants were arrested, and a preliminary examination was held. She and her counsel then knew as well what the plaintiff in error would be called upon to meet as they did when the information was filed in the district court on January 22d. The trial commenced on February 27th. Here was a period of 52 days from the time of her arrest, and 35 days after the information was filed, in which to prepare for trial.

The application shows an utter want of diligence to have the witnesses in attendance upon the trial, as well as a want of probable truth of the stated testimony. In reviewing the refusal of a continuance on account of. absent witnesses, the record will be examined, and the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true. McCarty v. State, 10 Okla. Cr. 407, 136 Pac. 1122.

The record shows statements of the plaintiff in error made to witnesses Morris, Jones, Zwick, and Tilghman as to her whereabouts and her movements on the night of the tragedy, which conclusively show that she was not with the absent witnesses at 'the time their alleged testimony would tend to establish. No affidavit of any of the alleged absent witnesses was presented in support of the motion for a new trial.

It is not an abuse of discretion to deny a continuance asked on the ground of absence of material witnesses, who were out of the state, where it is not shown that anyone of them would or could be procured within any reasonable time. If said witnesses had been present and testified to the facts stated in the affidavit for a continuance, we think the jury would not have given credence to such testimony in the face of the evidence produced on the trial.

It is our opinion that the court did not err in overruling the application for a continuance.

The third question is: Did the court err in refusing to sustain the defendant’s challenges for cause to Jurors J. W. Morgan and Albert Pressley?

From the examination of the Juror Morgan it appeared that he had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers, but had no fixed opinion at this time in reference to the guilt or innocence of the defendant of the charge against her, and that he believed that he could act as a fair and impartial juror in the trial of the case. His examination by the defendant’s counsel is as follows:

“Q. Now, at the time you read these published articles, did you form any opinion as to the guilt or innocence of this defendant? A. Yes, sir; from the newspaper articles. Q. Certainly; that opinion was based upon the purported confessions and statements and things that you read in the paper? A. Yes, sir. Q. Do you still have that opinion? A. I would in the absence of any testimony to disprove it; yes, sir; or any statement, rather. Q.- It would require sworn testimony to remove that opinion? A. Well, I don’t know; a statement might do it just as well as the sworn— I understand the statement in the newspaper is not sworn testimony; it is only newspaper opinion. Q. Certainly; but that caused you to form an opinion, didn’t it? A. Yes, sir. Q. And you still have that opinion? A. Yes, sir. Q. Now, you say the only way you can get rid of that opinion is by evidence here in court; is that true? A. Yes, sir; I think so. Q. Suppose no evidence is offered as to a fact which you have read of and upon which you base an opinion; then you would retain that opinion, wouldn’t you? A. No, sir; I wouldn’t. Q. How would you get rid of it, Mr. Juror? A. If there was any testimony, I would be governed by the testimony strictly. Q. Do you belong to any secret organization? A. I do. Q. What organization is it? A. 1 belong to the Masonic order, the Odd Fellows, and the Woodmen, and some others. Q. Where is your membership in the Masonic order? A. Luther, Okla. Q. You learned from what you read in the paper that the deceased was a brother Mason, didn’t you? A. Yes, sir. Q. You have an opinion now that he was a Mason, haven’t you? A. Yes, sir. Mr. Pruiett: We now challenge the juror for cause. Mr. Zwick: The state resists the challenge. The Court: Mr. Morgan, would the fact that the deceased in this case was a Mason have a tendency to affect your mind in any way in determining your verdict in this case? A. I don’t see why it would. Q. Well, answer me then directly? A. I don’t think so. Q. Notwithstanding any opinion you may have formed from reading the newspapers, could you lay such an opinion or opinions aside, and try the case fairly under the law and the evidence ? A. Yes, sir. Q. And give the defendant an impartial trial? A. Yes, sir. Q. Those opinions or any of those things upon which you based these opinions you wouldn’t permit to enter into your consideration at all? A. I would not. Q. Is that your state of mind? A. Yes, sir. Q. And I understood you during the course of your examination to state that, if there were some matter that you had formed an opinion upon, but it was not supported by. the evidence, you would not consider that as a fact at all. A. No, sir. You mean the statements in the paper? Q. Yes, sir. Á. No, sir. Q. You would only fix as facts such things as are proven on the trial? A. In the court. Q. Is that your state of mind? A. Yes, sir. The Court: The challenge is overruled. Exception allowed.”

On the examination of the juror Albert Pressley it appeared that this juryman had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers; that he had no opinion other than that derived from reading the newspapers; that he was positive that he could disregard that opinion and try the case solely under the evidence as presented. On cross-examination he stated:

“Q. In your present frame of mind, with what you have read, you could convict the defendant on less evidence than if you had not heard anything, couldn’t you? A. I don’t think I would. Q. You would carry that opinion into the jury box with you, wouldn’t you? A. Yes, sir. Q. Having that opinion, would it require greater evidence upon the part of the defendant for you to acquit her than if would if you did not have that opinion? A. I don’t think it would. Q. Isn’t it a fact, Mr. Pressley, that you have expressed that opinion to one of your neighbors? A. Well, I have talked but very little about it. Q. Isn’t it a fact that you expressed that opinion? A. Yes, sir; I have. Mr. Pruiett: The defendant challenges Mr. Press-ley for cause. The Court: You say that you have an opinion as to the guilt or innocence of this defendant? A. Yes, sir. Q. Is that opinion based upon what purported to be any of the testimony in the case or merely upon newspaper reports? A._ Well, just what I got out of the newspapers. Q. It is based solely upon what you read in the newspapers? A. Yes, sir. Q. Notwithstanding such an opinion, could you try the case fairly and impartially under the law, and give the defendant a fair and impartial trial? A. Yes, sir. Q. Would you convict the defendant upon any less testimony by reason of this opinion or the things that you have read, upon which you have formed your opinion, than you would if you had not read those articles in the newspapers? A. No, sir. Q. You would still require the state to prove the defendant guilty by the evidence beyond a reasonable doubt before you would consent to a conviction? A. Yes, sir. Q. Could you lay aside this opinion which you say you have formed upon newspaper reports entirely, and not give that any weight or consideration in determining your verdict? A. Yes, sir. Q. You think .you would not permit these reports or any opinion you may' have formed based thereon to enter into your considerations in determining your verdict? A. No, sir; I would not. Q. You think you would not permit them to enter into your considerations at all; is that a fact? A. Yes, sir. Q. Then I understand you that in the reading of these newspaper reports any opinion based upon them would not affect your mind one way or the other in determining your verdict in the case? A. No, sir; it would 'not. Q. Your verdict would be based entirely on the evidence you hear upon the trial, and the law given to you by the court; is that correct? A. Yes, sir. Mr. Pruiett: Counsel for the defendant wants to object to the questions propounded by the court to the juror, as being leading and prejudicial to the rights of the defendant. The Court: Overruled. The challenge overruled also. Exceptions allowed.”

The defendant exhausted her right of peremptory challenge without excusing said jurors. The question presented is: What shall be deemed a disqualifying opinion?

Our Procedure Criminal provides that:

“No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.” (Section 5861, Rev. Laws 1910.)

The increased facilities, through the press, of spreading stories of crime, as items of news, especially among the moré intelligent classes, makes it difficult to lay down a fixed rule which would disqualify persons who formed their opinions from newspaper reports, or common report and rumor, unless it be of that character which impairs the impartiality of the juror by engendering a- bias or prejudice which is fixed, and would require evidence to remove. Under the provisions of the statute the competency of a juror is a question of fact to be determined by the court. Before the court can so determine, it must be shown by an examination of the juror, upon his voir dire, not only that his opinion was formed solely in the manner stated, but, in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence.

In the case of Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, it is said:

“One accused of crime is by the Constitution guaranteed a fair and impartial tidal (Const. Bill of Rights, sec. 20), but, to insure this, it is not meant that jurors shall never have heard of the case, or shall not have any impressions, concerning any of the facts. In this day and age it would be difficult to find citizens competent for jury service who have not some impression as to the case, derived from newspaper accounts. The constitutional guaranty only excludes those jurors who have an opinion upon the merits of the case, upon the guilt or innocence of the accused óf the crime charged, based upon such testimony as may reasonably be expected to be presented upon the trial, or an opinion founded on personal ill will towards the accused. * * * Under the statute an opinion formed or expressed as to the guilt or innocence of the defendant founded upon rumor or newspaper reports does not disqualify a juror, provided it appears to the court, upon the declaration of said juror, he can and will, notwithstanding such opinion, act impartially and fairly upon the law and evidence. As we construe the statute, the competency of a juror is a question of fact to be determined by the court in the exercise of a sound discretion, and constitutes a legislative definition of the constitutional provision. However, it cannot be regarded as changing in any degree the essential, qualifications which jurors must possess. It merely furnishes a test by which those qualifications are to be determined. It makes the declaration of the juror ‘that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him, competent, as bearing upon the question of his impartiality, and requires the court to consider such declaration, when so made.’ The statute does not attempt to determine what shall be the probative force of the declaration of the juror, or how far it shall have the effect of relieving him on the disqualification arising from such an opinion. The declaration, when so made, is evidence to be received and gives such weight as, under all circumstances appearing, it is fairly and justly entitled to. Before it can operate to remove the disqualification, the court must be satisfied of its truth, and that question is left to be determined from all the facts and circumstances appearing from his examination upon the voir dire.”

An examination of the testimony of these jurors, given on voir dire, shows conclusively that the opinions which they formed, and that one juror says he may have expressed, were founded upon the reports which they had read in the newspapers. Intelligent men take newspaper accounts as current news, liable to qualification, explanation, or contradiction, and, when qualified, explained, or contradicted, they change their opinions or belief accordingly as a matter of course. The opinions of the jurors here were such opinions merely as intelligent men almost irresistibly form from reading newspaper accounts of crime, relying upon the truthfulness of the published accounts, which are always subject to be changed and altered by contradictory accounts. Such opinions rarely disqualify intelligent men from fairly considering the evidence given on a trial and rendering an impartial verdict thereon when called upon to act as jurors. Nine-tenths of the intelligent taxpayers of the county, where a homicide has taken place, and the facts and the circumstances attending it have been published in the newspapers, would be disqualified as jurors, if the objections raised in this case were well founded. All of them would read the accounts or hear the facts detailed by some one who had read them, and most of them would form just such opinions, or get just such impressions as the jurors had in this case.

Under our statute, the mere expression-of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be “the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.” Section 5858, Rev. Laws 1910.

The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless It appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial. Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80; Holt v. U. S., 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

In the case at bar we are clearly satisfied that the opinions of the jurors challenged for cause were not of a disqualifying character.

Exceptions to the refusal of the court to give certain instructions requested by the defendant are called to our attention and urged as error in the plaintiff in error’s brief. An examination of the charge of the court shows that the jury was fully and correctly instructed upon every phase of the case. The instructions requested and refused were cautionary, touching the credibility of certain witnesses and the weight to be given to their testimony. They were properly refused. The court correctly stated the statutory rule as to the necessity of corroboration of the testimony of an accomplice by giving the following instruction:

“The witness Jess K. Mackey, having testified to being concerned in the commission of the crime charged in this case, is termed in law an accomplice; and you are instructed that 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 on trial with the commission of the offense, and the corroboration is not sufficient if it'merely shows the commission of the offense or the circumstances thereof. If you find that the testimony of the witness Mackey has been corroborated by other evidence tending to connect the defendant Alverta B. Gentry with the commission of the crime charged, then you would be warranted in convicting the defendant, if all the evidence, taken together, convinces you beyond a reasonable doubt of her guilt. The corroborative evidence connecting her with the crime need not be sufficient, standing alone, to convince you of her guilt, but, if the corroborative evidence, together with the testimony of the accomplice, convinces you beyond a reasonable doubt of her guilt, then you should so find your verdict.”

A careful examination of the record fails to disclose any errors whereby the substantial rights of the plaintiff in error have been prejudiced. Her trial was eminently fair, and she was ably defended. In our opinion, the evidence amply supports, the verdict. The crime, as the evidence tends to establish it, was of a peculiarly brutal and heartless character,' and it would have been a miscarriage of justice, as we think, if upon the evidence in the case any other verdict had been rendered.

The judgment of the district court of Oklahoma county herein is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    ARTHUR MONTOUR v. STATE.
    No. A-2011.
    Opinion Filed March 6, 1915.
    KAPE — Several Acts — Election by State. In a prosecution for statutory rape, where evidence is introduced of acts of sexual intercourse between the prosecutrix and the defendant other than the one charged in the information, for the purpose of pjroving the act charged, it is the duty of the court upon motion of the defendant, made when the state rests its case, to require the state to elect upon which one of the several acts it intends to rely for a conviction.
    (Syllabus by the Court.)

      Appeal from Superior Court, Custer County; , J. W. Lazvfer, Judge.

    Arthur Montour, convicted of rape in the second degree, appeals.
    Reversed.

      Shackleford & Norfleet and Giddings & Giddings, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Arthur Montour, was convicted of statutory rape, charged to have been committed on or about the 22nd day of November, 1912, on Hanna Irion, a female over the age of sixteen years and under the age of eighteen years, of previous chaste and virtuous character, and not the wife of the defendant. On the 24th day of March, 1913, the court sentenced the defendant, in accordance with the verdict of the jury, to be confined in the penitentiary for a term of five years. To reverse the judgment an appeal was taken by filing In this court on June 4, 1913, a petition in error with case-made.

The evidence for the state was substantially as follows: Hanna Irion, the prosecutrix, testified that she was sixteen years of age in August, 1912; that she was the sister-in-law of the defendant; that she was working in a hotel in Weatherford, and the defendant came there presumably to referee a wrestling match; that under the pretense of taking her out to the wrestling match that night he took her to a canyon near town, where they stayed for about three hours, and while there the defendant had intercourse with her two or three times; that this was the first time she had ever had intercourse with any one; that it was painful, but did not cause her to bleed; that a few weeks later the defendant came to the hotel and forced her to accompany him to another canyon, and again had intercourse with her two or three times; that this was about November 20th; that the defendant came to the hotel one evening, visited her in the kitchen, staying two or three hours, and there by force accomplished an act of sexual intercourse with her; that this was about November 22nd.

T. J. McCoy testified that the prosecutrix worked two or three months at his hotel, and he remembered the defendant having been there two or three times, and one time the defendant went back to the kitchen and visited the prosecutrix; that he remained there until about 10:30 p. m.; that witness went to the kitchen several times while he was there and noticed nothing unusual; that they were laughing and talking, and seemed to be in a good humor.

Mrs. McCoy testified that she remembered the night that the defendant talked to the prosecutrix in the hotel kitchen; that she was in there four or five times during the time the defendant was there; that nothing unusual was apparent; that the light was burning and the shades up and the doors were all open-

F. M. Irion testified that he was the father of the prose-cutrix, and that she was sixteen years old in August, 1912;, that her conduct had been good so far as he knew.

When the state rested the defendant moved the court fi> require the state to elect which one of the three alleged occurrences testified to by the prosecutrix it relied on for a conviction. The motion was overruled, and an exception reserved.

In support of the defense that the prosecutrix was not at the time of previous chaste and virtuous character, two physicians were called, who testified that as medical experts they would state that sexual intercourse with a virgin between the age of sixteen and eighteen years twice within thirty minutes would produce a hemorrhage caused from the rupture of the hymen; that the hemorrhage would likely be so extensive that the under garments would be discolored.

S. A. Townsend testified that in a conversation with the prosecutrix at a dance he made some passes towards her, and she said, “Well, if we were outside you could have what you want.” That he also heard her tell a Mr. Wilson at this same dance to meet her and her sister at a certain place, and that he could have his own way. That on a later occasion he saw Wilson with the prosecutrix and her sister at a dance at. Porter’s and saw them returning the next morning about eight o’clock.

Gertrude Irion testified that she was a step-sister of the prosecutrix; that on the morning after the wrestling match the prosecutrix told her that she had gone to see some friends the night before; that she later told her that she was out with the defendant that night, but on neither occasion did she mention that the defendant had raped her.

The errors assigned and argued are, in substance, that the verdict is contrary to law and to the evidence; that the court eiTcd in its rulings on questions of evidence, and in refusing requested .instructions and in giving instructions excepted to, and that the court erred in refusing to require the state to elect on which one of the three criminal acts sworn to by the prosecutrix the state would rely, and against which the defendant would be required to defend.

Of the various errors assigned for a reversal of the judgment we deem it necessary to consider only the last. It has been held by this court that in a prosecution for statutory rape, evidence is admissible of sexual acts between the prosecutrix and the defendant prior to, and subsequent to the one charged and relied upon for a conviction, to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction. Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731.

However, where evidence of acts of intercourse between the prosecutrix and the defendant other than that relied on for a conviction has been admitted, it is the duty of the court upon motion of the defendant to require the state to elect upon which particular act the state will rely for a conviction, and in the charge of the court, the jury should be restricted to the consideration of the act the state elects and relies on for a conviction, and the purpose of evidence of acts other than the one relied on should be properly explained therein.

Here the prosecutrix testified to three separate and distinct offenses, either one of which would support the charge in the information, and the defendant could be tried for either, and separately for each of them. Under the ruling of the court refusing to require the state to elect, and under the charge of <?the court in this case a verdict of guilty could have been rendered, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge as to any one of these separate offenses. In this class of cases, as well as in any other, the state must rely on a specific offense; and the conviction, if one is had, must depend upon the evidence of that offense alone. Other incidents are important only as tending to prove the one specific offense, for the alleged commission of which the defendant is on trial.

It follows that the trial court committed prejudicial error in overruling the defendant’s motion to require the state to elect. The judgment is therefore reversed. The superior court of Custer county having been abolished, the cause is remanded to. the district court of said county.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    JACK KENDRICK v. STATE.
    No. A-2217.
    Opinion Filed March 10, 1915.
    (146 Pac. 727.)
    INTOXICATING LIQUORS — Illegal Sale — Aiding and Abetting. A person who acts as go-between in purchasing intoxicating liquor at an illegal sale thereof, and who thereby aids and abets in the consummation of the sale, is punishable as a principal offender under the statutes.
    (Syllabus by the Court.)

      Appeal from County Court, Jefferson County; J. M. Adams, Judge.

    Jack Kendrick was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

      C. J. Davenport and R. McMillan, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Jack Kendrick, was convicted at the January, 1914, term of the county court of Jefferson comity on a charge of unlawfully selling intoxicating liquor, and .his punishment fixed at imprisonment in the county jail for a period of 30 days and a fine of $50.

The material facts, as testified to by the prosecuting witness, and admitted by the plaintiff in error, are substantially as follows: Claud Jay testified that he was in Waurika about the 6th day of December, 1913; that he met the plaintiff in error, Jack Kendrick, and asked him if he knew where he could get some whisky. He said that he did. He (Jay) then gave the plaintiff in error $5 in currency and told him to get a pint. Thej'' agreed upon a place to meet within a short time. Witness went to this place and there met the plaintiff in error, who delivered to him the pint of whisky and returned him all the money except $1.35. The whisky cost a dollar, but the plaintiff in error did not have correct change to pay the thirty-five cents.

Updn the authority of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83, and Cantrell v. State, 10 Okla. Cr. 304, 135 Pac. 1158, the judgment is affirmed.

DOYLE, P. J., concurs. FURMAN, J., absent.


text:
      Ex parte WALTER FLOWERS. Ex parte JAMES HOBBS.
    Nos. A-2348, A-2349.
    Opinion Filed March 15, 1915.
    (146 Pac. 914.)
    COURTS — Opinion—Habeas Corpus Proceedings. When a petition for the writ of habeas corpus is filed in this court and a majority of the members of the court agree that the petitioners are entitled to be released from custody, but are unable to agree upon a determination of the legal questions raised, such petitioners will be discharged by a memorandum order and especially when no good purpose can be served by an extensive discussion of the questions raised.
    (Syllabus by the Court.)
    Applications for writs of habeas corpus by Walter Flowers and James Hobbs.
    Writs granted.

      McAdams & Haskell, Jean P. Day, H. D. Henry, and W. 0. Cromzvell, for petitioners.

      Samuel W. Hayes and C. J. Davenport, Asst. A.tty. Gen., for the State.
   ARMSTRONG, J.

The petitions of Walter Flowers and James Hobbs were filed in this court in October and November, 1914, seeking their release upon the writ of habeas corpus from the custody of the warden of the state penitentiary. The petitions are based primarily upon pardons issued by Lieutenant Governor J. J. McAlester in the absence of Governor Lee Cruce from the state. The questions at issue were ably argued and briefed by counsel for both petitioners and respondent. Many of the statutes involved have been repealed by the Legislature since the filing of the petitions, thereby eliminating numerous questions from these cases. The members of the court, after thorough and deliberate consideration, have been unable to agree upon many of the legal questions presented. There is no disagreement among a majority, however, upon the question of the right of petitioners to be discharged upon the ground that the said pardons are valid as between the state and the petitioners. The writer of this memorandum, however, does not concur in that conclusion.

The writs are granted, and the warden of the state penitentiary directed to discharge the petitioners from custody.

DOYFE, P. J., and FURMAN, J., concur in result.