source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    MONROE GUNNELLS v. STATE.
    No. A-759.
    Opinion Filed March 26, 1912.
    (122 Pac. 264.)
    1. LARCENY — Evidence. In a prosecution for larceny of live stock, the evidence is held to support the verdict, and that no reversible error was committed on the trial.
    2. INDICTMENT AND INFORMATION — Verification. The verification of an information charging a felony is no part of the information itself, and is not an indispensable requisite.
    S. TRIAL — Reading Evidence to Jury. As section 6865 (Comp. Laws
    1909) of Procedure Criminal requires only the presence of the defendant and the calling of counsel, where there is a disagreement between jurors as to any part of the testimony, and the jury request that such testimony be read, it was not error for the court to direct the reporter to road such testimony in the absence of the defendant's counsel; he having been duly called, and the defendant being present in person.
    4. SAME — Argument of Prosecuting Attorney. Where the prosecuting attorney in closing the ease makes the statement, ‘ ‘ The perjury was so plain that the court called me to his bench and called my attention to same,” he is guilty of misconduct, as the jurors are the sole judges of the credibility of the witnesses who testify before them, and not the court. But where the court, upon objection made, immediately instructs the jury that such is not the case, and directs the jury to disregard such statement, it is not prejudicial- error.
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge.

    Monroe Gunnells was convicted of larceny, and appeals.
    Affirmed.

      G. T. Ralls, for plaintiff in error.

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

Monroe Gunnells, plaintiff in error, was tried, convicted, and sentenced to imprisonment for one year in the state prison in pursuance of a verdict returned upon his trial on an information which charged the larceny of three head of cattle, the personal property of one Crockett Gray.

The proof on the part of the prosecution tends to show the following facts:

Crockett Gray was a farmer living near the boundary line of Pontotoc and Coal counties, and was the owner of three head of cattle, which were kept by one Dunn on his ranch near the town of Oconee, about three miles from Gray’s home. The defendant lived with his father-in-law, Sam Whiteside, which was a mile or two from Dunn’s pasture. On the morning of April 27, 1909, the defendant left the home of his father-in-law ’ on horseback ostensibly to get some cane seed from a man named Carr, who lived about half a mile from Dunn’s pasture. He reached Carr’s early in the afternoon and got the cane seed and left with it.

Lon Craft, the only witness who testified directly to the larceny of the cattle, lived about a quarter of a mile from Carr’s, and about the same distance from Dunn’s pasture. He testified that the defendant came to his house on that day, along in the afternoon, and that his brother, Tom Craft, was there; that the defendant stayed there nearly all the afternoon, and along about dark offered Tom Craft a dollar to go with him to Dunn’s pasture and get some cattle that the defendant said belonged to his father-in-law, Sam Whiteside; that the defendant and Lon Craft went over to Dunn’s pasture and drove out three head of cattle, which were afterwards identified as the stolen cattle.

The cattle were driven by the defendant, with the assistance of Tom Craft, to a pasture on his father-in-law’s place, where they were marked and branded and kept for a few days, and then transferred to the pasture of one Howard, which pasture was larger and had more timber in it than the Whiteside pasture, which was a small pasture close to the road,- where an entire view could be had from the road. The cattle were kept in the Howard pasture for a week or two, when the/ were sold by the defendant to Dunk McMillan for $31. The cattle were then taken to the McMillan pasture, seven or eight miles from the home of Crockett Gray, the owner of the cattle. When the cattle were missed from Dunn’s pasture, search was made for them, and they were found in McMillan’s pasture.

.The defendant offered testimony tending to show that he purchased the cattle from a man whose name he did not know, who at the time was driving the cattle along the highway. According to the defendant’s own testimony, he did not ask the man where he lived, or what was his name, or where he got the cattle. He testified that Tom and Lon Craft were present when he bought the cattle. The testimony of his brother-in-law and one or two other witnesses was offered to corroborate the fact that he was accompanied by three other men, when driving the cattle along the highway on the day charged.

We have considered the record in its most favorable light to the defendant, but find no error upon which a new trial should be granted. Clearly the evidence is sufficient to sustain the conviction.

The first error assigned, that “the court erred in permitting the county attorney to amend the information by adding thereto verification of Crockett Gray,” is without merit. Henson v. State, 5 Okla. Cr. 201, 114 Pac. 630.

The second assignment is that there was error committed in the argument of the case by the county attorney. By stipulation of counsel, it is shown that the county attorney, in his closing argument, stated:

“Gentlemen of the jury, there has been a great deal of perjured testimony offered by the defendant in this case. Why, the perjury was so plain that the court called me to his bench and called my attention to same.”

It is further agreed that the defendant objected to the statement of the county attorney and asked the court to instruct the jury not to consider that statement, and that the court did so instruct the jury. It does not appear that this stipulation was submitted to the trial court as a part of the original case-made; for this reason, the question raised is not properly before this court. We think, however, considering the contention as presented, that the misconduct of the county attorney in basing an argument on what the court might have said regarding the credibility of a witness does not constitute reversible error, in view •of the instruction of the court to the jury not to consider such statement. In the absence from the record of the proceedings had, the presumption is that the misconduct was properly rebuked, and the jury directed to disregard the prejudicial statement.

It is further contended that the court erred in permitting the ■court reporter to read the testimony of three witnesses in the absence of the defendant’s attorney. It appears from the record ■that the jury returned into court and asked to have this testimony read. The record shows that Mr. Ralls, the attorney for the ■defendant, was called, and that the court waited upon him a 'reasonable length of time, and that he did not appear. The defendant being present, Mr. Humphreys, an attorney at law, agreed fo act in the absence of Mr. Ralls, and to save all possible excepfions for him. The court then directed the reporter to read the ■testimony in question. During the reading of this testimony, -Mr. Ralls appeared and excepted to the action of the court in permitting any testimony to be read in his absence. The alleged 'error is based upon the theory that it was the duty of the court to wait until the attorney for the defendant appeared, no matter how long that might be. Such is not the law. Section 6865, Comp. Daws 1909, provides:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

This information was given in the presence of the defendant, after his counsel had been called. There is nothing in the record to show that the defendant was in any way prejudiced by the failure of his counsel to be present during the entire proceedings of the court.

This covers all assignments of error, and results in the conclusion-that the defendant was properly convicted, and that the-record presents no reversible error.

The judgment of the district court of Coal county is therefore affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    J. H. GRAY v. STATE.
    No. A-755.
    Opinion Filed March 27, 1912.
    (122 Pac. 265.)
    1. TRIAL — Province of Court and. Jury. In a criminal prosecution, it is the duty of the court to declare the law to the jury. Whether the evidence has a tendency to prove any fact in issue in a criminal case is for the determination of the court; not so as to-the weight of the evidence.
    2. SAME — Instructions—Assumptions as to Facts. Where a fact material to the issue, concerning the existence of which there is conflict in the evidence, is assumed by the court in an instruction to-the jury to be fully established, the province of the jury is invaded, and constitutes prejudicial error.
    (Syllabus by the Court.)

      Appeal from District Court, Lc Flore County; Malcolm E. Rosser, Judge.

    J. PI. Gray was convicted of assault with intent to do bodily harm, and appeals.
    Reversed and remanded.

      Jean P. Day, T. H. Dubois, and E. L. Taylor, for plaintiff in error.

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

In this case the Attorney General has filed a confession of error, which, omitting the title, is as follows;

“Plaintiff in error, J. H. Gray, was prosecuted in the district court of L,e Flore county by information, charged with the crime -of assault with intent to kill, which information was filed in said court on the 23d day of March, 1909. Afterwards an amended information was filed, charging the plaintiff in error with assault with intent to do bodily harm. This information was ■filed on the 4th day of April, 1909. The defendant plead not guilty to the information, and the trial was had in November, 1909, resulting in a verdict of guilty of assault with intent to do bodily harm, assessing his punishment at imprisonment in the county jail for a period of one year. It is argued that the court ■erred in giving the following instruction which was excepted to and embodied in the motion for new trial as ground for a new trial, and was incorporated in the petition in error as ground for a reversal of this judgment, as follows:. ‘(4) Now in this case you are instructed that from the testimony and from the statement of the defendant himself he is guilty at least of a simple asasult, and the question for you to find is whether or not he is guilty of an assault with intent to do bodily harm.’ .Counsel for plaintiff in error contend that the giving of this instruction was error, because it invaded the province of the jury, denying the defendant his. constitutional right of a trial by jury by telling the jury that the defendant was guilty of a simple assault, which was an essential element of the crime of assault to do bodily barm. It has been held by some courts that: 'Where all the facts essential to a conviction are admitted, there is nothing for a jury to pass upon, and it is not error for the court to direct a verdict of guilty.’ People v. Richmond, 59 Mich. 570, 26 N. W. 770; People v. Ackerman, 80 Mich. 588, 45 N. W. 367; People v. Neumann, 85 Mich. 98, 48 N. W. 290; 12 Cyc. 598, and cases there cited. These cases are all based upon the proposition that there is absolutely no conflict in the testimony, or that the defendant admits the crime. In this case the defendant denies the ■crime, and there is conflict in the testimony on the part of the ■state’s witness and the testimony on behalf of the defendant, as ■shown by the case-made, pages 6 and 7. We think for that reason that the instruction given was erroneous, that the defendant was entitled to have the jury pass upon the weight of the testimony and the credibility of the witnesses, and the instruction of the court invaded the province of-the jury in that respect. For this reason the Attorney General confesses error, and says that this judgment should be reversed, and the case remanded to the, district court of Le Flore county for another trial.”

.The facts as presented by the proof on the part of the prosecution show that the defendant and one R. E. Price met in a store at Bokoshe and had a dispute about rent. That the defendant started towards Price with an open knife, saying: “I will puncture you, you damn cow thief, you.” Persons present pushed the defendant back. The defendant testified on his own-behalf that Price was the aggressor both by word and action, in that Price called him a damned liar, and started towards him. The defendant had the right to have a decision on the facts by the jury, and the opinion of the trial judge as expressed in said instruction, that the defendant' on his own testimony was at least guilty of a simple assault, was clearly an invasion of the province of the jury to pass upon the weight and sufficiency of the evidence. In every criminal case it is within the inherent power of the jury to acquit a defendant, if they see fit, and, if an acquittal is had, no matter how guilty the court may consider the defendant, it has no power to set aside the verdict.

It is the duty of the court to declare the law to the jury, and whether the evidence has a tendency to prove any fact in issue in a criminal case is for the determination of the court, but not so as to the weight of the evidence.

The confession of error is therefore sustained and the judgment of the district court of Le Flore county reversed, and the case remanded thereto, with direction to grant a new trial.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: FURMAN, P. J.

text:
    M. C. McGRAW v. STATE.
    No. A-1015.
    Opinion Filed March 27, 1912.
    (122 Pac. 242.)
    -APPEAL — Dismissal. It is no part of the duty of an appellate court to consider or review the rulings, orders, and judgment of which the appellant complains in a criminal case where the appellant is at large as a fugitive from justice; and, when it is made to appear that this is the case, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Coitrt, Oklahoma County; G. A. Broivn, Judge pro tem.

    M. C. McGraw, alias Mike O’Brien, was convicted of crime, and appeals.
    Dismissed.

      Moman Pruiett and B. G. McAdams, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and E. H. Harris, for the State.
   FURMAN, P. J.

While it is true that a defendant in a criminal case has the right under the Constitution and statutes -of this state to have the rulings, orders, and judgment of the trial court reviewed upon appeal to this court,' yet this right, like any other, may be waived by the voluntary act of such defendant. Where a defendant, pending the determination of his appeal to this court, voluntarily withdraws himself beyond the jurisdiction of the court or becomes a fugitive from justice and ■places himself beyond the reach of the process of the court, so as to defeat the enforcement of any judgment which might be rendered against him, he thereby waives and abandons his right •of appeal, and the appeal will be dismissed. See Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921; Tanner v. State, 5 Okla. Cr. 298, 114 Pac. 360; Morey v. State, 6 Okla. Cr. 166, 117 Pac. 724; Havill v. State, infra, 121 Pac. 794; Tydings v. State, 4 Okla. Cr. 659, 112 Pac. 759.

It has been made to appear to the satisfaction of this court that the appellant M. C. McGraw, alias Mike O’Brien, is a fugitive from-justice. It is therefore ordered by the court that the appeal in this cause be dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    W. H. ETCHISON v. STATE.
    No. A-746.
    Opinion Filed March 30, 1912.
    (122 Pac. 242.)
    1. INTOXICATING LIQUORS — Illegal Sale — Evidence. The proof of the payment by the defendant of the special tax required of liquor dealers by the United States on the day before the intoxicating liquors were found in his possession was prima facie evidence of his intent to violate the provisions of the prohibition law.
    2. ’ APPEAL — Review. Where the proof is evident of the guilt of the defendant and no testimony is offered on his behalf, this court will only examine the information, instructions excepted to, and judgment for fundamental error, but will not make an examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony.
    (Syllabus by the Court.)

      Appeal' from Bilis County Court; A. B. Williams, Judge.

    W. H. Etchison was convicted of violation of the prohibition law, and appeals.
    Affirmed.

      Chas. Swindall, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the ' county court of Ellis county of the offense of having possession ' of intoxicating liquors with intent to violate provisions of the prohibition law, and sentenced to serve a term of 60 days in the county jail, and to pay a fine of $400 and costs, and, in default of the payment of said fine,'that the same be satisfied as provided by law. The judgment and sentence was entered on January 14, 1910. From this judgment and the order overruling a motion for a new trial an appeal was taken by filing in this court on April 29th a petition in error with case-made.

The petition alleges 28 assignments of error, to all of which we deem it a sufficient answer to say that the information properly charges the offense, and the proof on the part of the prosecution is conclusive as to the guilt of the defendant. The liquor in .question was found December 1, 1909, by the sheriff in the defendant’s possession, at his feed yard in the town of Shat-tuck. There was proof of the payment on October 3, 1909, by the defendant of the special tax required of liquor dealers by the United States; also proof of large and frequent deliveries of large quantities of beer and whisky by a drayman, and further proof that numerous persons were seen in and around the defendant’s feed yard in an intoxicated condition. There was no evidence offered on the part of the defendant.

We do not consider it the duty of this court, and We have neither the time, nor the inclination, to review the almost innumerable technical assignments of error supported by an extensive printed brief, when the fact is patent that this is the only possible defense. The proof, is not only evident, but conclusive as to the guilt of the defendant. Suffice it to say we have examined the record, and find no prejudicial error.

The judgment of the county court of Ellis county is therefore affirmed, and the case remanded thereto forthwith, with direction to enforce its judgment therein.

FURMAN, P. J., and ARMSTRONG, J„ concur.


text:
    S. H. CUMBERLEDGE v. STATE.
    No. A-1121.
    Opinion Filed March 30, 1912.
    (122 Pac. 266.)
    INTOXICATING LIQUORS — Illegal Sale. Where the evidence shows, that a defendant upon trial was concerned in the sale of intoxicating liquor, it is immaterial as to whether or not the sale was. made by the defendant or by another person who was acting with, the defendant.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

    S. H. Cumberledge was convicted of violating the prohibition law, and appeals.
    Affirmed.

      S. V. 0JHcM'e and' W. W. Momyer, for appellant.

      Smith V. MatSon, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

Appellant was convicted in the superior-court of Muskogee county for a violation of the prohibitory liquor law, and his punishment was assessed by the court at a fine of $200 and 30 days imprisonment'in the county jail.

The only question presented by this appeal is as to the sufficiency of the evidence to sustain the verdict of the jury and the-judgment of the court.

Ernest Hoheimer testified for the state that on the 31st day of December, 1910, he went into a drug store in the Estes building in Muskogee and purchased a pint of whisky; that the whisky' was purchased in a little room behind the prescription case in the drug store; and was purchased from a negro who was frequently seen around the drug store; that he did not know the negro’s name, but that he had frequently gone to the drug store and had seen this negro porter behind the prescription case pouring out drinks of whisky, and also had seen him cleaning up the drug store; that he had seen several persons drinking in the drug store; that, when the witness would go in the drug store, he would see the appellant there, but had never seen him back behind the prescription case where the whisky was sold, but at his desk, which was very near the back end of the drug store, six or seven feet or more from the prescription case; that he had seen the negro porter who sold whisky behind the prescription case in the drug store take the money for whisky to the cash register, and there make change and bring it back.

Ben Hoífman, a witness for the state, substantially corroborates the testimony of Ernest Hoheimer.

Ed A. Estes testified for the state that he was the owner of the building known as the Estes building; that appellant paid the rent on this drug store; that no one could go behind the prescription case in the drug store except from the front way.

Horace Cole, a negro, testified for the state that he was porter at the drug store in question, and worked there in December, 1910; that his salary was paid by appellant.

Appellant took the witness stand, and testified as follows:

“Q. Your name is F. B. Cumberledge? A. Yes, sir. Q. Where do you reside ? A. Muskogee. Q. What business are you in, Mr. Cumberledge? A. Well, I am in the drug business. Q. Flow long have you been in the drug business? A. Well, sir, ten or eleven years. Q. You are charged with selling or being interested in the sale of liquor to one Ernest Hoheimer on or about the 1st day of December, 1910. I will ask you to state if you sold any liquor to Ernest Hoheimer, or authorized any one to sell any, sharing in the profit of the sale to Hoheimer? A. I did not. By Mr. Momyer: That is all. By Mr. Disney: No questions.”

We are of the opinion that this evidence fully supports the verdict, and that the jury could not have arrived at any other verdict that that the appellant was guilty. The idea that the proprietor of a drug store would allow his negro porter to open up a bootlegging joint in the rear of the prescription case, to which access could only be had from the front, and that this proprietor was not in any manner concerned or connected with this boot- , legging joint, was an insult to the intelligence of the court and jury. Appellant was in charge of that drug store. It was .his business to see that-it was conducted in a lawful manner; and, under the facts detailed in evidence in this case, the pretext that he was not concerned in the sale of whisky which was being habitually sold in his drug store is the flimsiest pretext we have ever heard offered in a case of this kind. We are only surprised that his punishment was not fixed at a fine of $500 and six months imprisonment, for the evidence clearly shows appellant is a confirmed bootlegger.

The judgment of the lower court is therefore affirmed, and the clerk of the court is directed to issue the mandate at once.

ARMSTRONG and DOYLE, JJ., concur.


author: EURMAN, P. J.

text:
    PAUL RIAL v. STATE.
    No. A-1122.
    Opinion Filed April 2, 1912.
    (122 Pac. 558.)
    1. INTOXICATING LIQUORS — Evidence—Violation of Prohibitory Law. For evidence sustaining the charge of having possession of intoxicating liquors with intent to sell the.same, see opinion.
    2. APPEAL — Case-Made—Sufficiency. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the case-made contains proper recitals of what occurred duly certified to by the trial judge.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Farrar L, McCain, Judge.

    Paul Rial was convicted of violation of the prohibitory law, and appeals.
    Affirmed.

      W. W. Momyer, for appellant.

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

In this case the undisputed evidence is that appellant, Paul Rial, conducted what was known as the Bank drug store in the city of Muskogee; that this drug store was searched for intoxicating liquors in December, 1910; that there was a room about 16 x 18 feet in the back of the drug store, and in this room was found a quantity of whisky and beer on ice, and that there was also in this room an ice-box, glasses for drinking intoxicating liquors, and a cork puller. There was a barrel behind the counter in which empty bottles were placed. 'There was a counter in the room with a shelf behind the counter. There was a bottle of whisky and one of wine setting on this shelf, and the corks set in them loosely. There was a vault that cut into the room between the prescription case anct the north side of the room. In this vault nails were found in planks placed in there loosely so they could be pulled out with the fingers, and, when they were pulled out, the planks would slide out. In this vault about 30 bottles of wine were found; also a five-gallon water bottle containing about a gallon of whisky and also a tow sack full of beer bottles and another tow sack half full of beer bottles.

The above is a condensed statement of the testimony on the part of the state. The appellant offered no evidence in reply. This evidence conclusively shows that appellant and all persons concerned with him in conducting this establishment were violating the law, and all such persons should have been prosecuted and convicted for their participation in this offense. If a man works in such an establishment as an employee, he is just as guilty as the proprietor. No one should be permitted to escape punishment upon the ground that he was an employee when he commits an unlawful act. Under our statute all persons concerned in the commission of an offense are just as guilty as though they committed the offense themselves. The motion for a new trial, among other things, alleges:

“That the jury which tided the defendant was not impaneled as provided by law and was not a legal jury in this, to wit: That during the same term of the superior court of Muskogee county, Okla., at which this defendant was tried and on the day Immediately preceding the trial of this defendant a jury was duly impaneled and sworn in said court to try the case of the State of Oklahoma v. S. H. Pate, and that after said jury had been impaneled and sworn to try said cause a continuance of the case of the-State of Oklahoma v.-S. H. Pate was had by the court until the-following morning, the said jury being admonished by the court that they were still in the trial of said cause, and that on the calling-of the case of the State of Oklahoma v. This Defendant, J. C. Plood, one of the said jurymen, then engaged in the trial of the case of the State of Oklahoma v.. S. IT. Pate was impaneled and sworn to try the cause against this defendant, and the said juryman did so sit on the trial of this defendant; that this defendant had no knowledge or information that the aforesaid juryman was. engaged in the trial of the case of the State of Oklahoma v. S. IT.. Pate until after the verdict in this case had been rendered.”

We cannot consider this question because the case-made nowhere contains a statement properly certified to by the trial judge-touching this matter. It-is true that the judge does certify that appellant’s motion for a new trial was filed, but he does not certify to the truthfulness of any statement contained therein. If an appellant can perfect his case-made as to any matter occurring in open court of which the judge has personal knowledge-by making statements in his motion for a new trial or by affidavits supporting such motion, why the necessity of having a judge certif}1- to the case-made at all? If this can be done, the-, records of trial courts would be taken out of the hands of the-judge, and would be at the mercy of defendants, and this court, would not know what to depend upon. Nothing which occurred in open court in the presence of the trial judge can be considered upon appeal, unless such piatters are embodied in proper recitals in the case-made and are certified to by the judge. This-is the plain letter of the law. See Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965; Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974; Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Nowlin v. State, infra, 115 Pac. 625.

As the judge has not certified to the truthfullness of the statements contained in appellant’s motion for a new trial, which occured in open court and of which the judge had personal knowledge, we cannot consider this matter.

The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
      Ex parte JIM SPENCER.
    No. A-1668.
    Opinion Filed April 2, 1912.
    (122 Pac. 557.)
    1. INTOXICATING LIQUORS — Information—Sufficiency. 'Where an information charges the defendant with having in his possession intoxicating liquors with the intention of violating the provisions of the prohibitory liquor laws of Oklahoma, such information states an offense against the laws of this state.
    2. INDICTMENT AND INFORMATION — Objections —Waiver. AVhere a defendant goes to trial, and for the first time objects to the information or indictment when the state attempts to introduce testimony thereunder, or upon appeal, or by habeas corpus, the objection should be overruled if by any intendment or presumption the information or indictment can be sustained.
    8. HABEAS CORPUS — Defects in Information. Formal defects in an information cannot be presented by habeas corpus proceedings..
    (Syllabus by the Court.)
    Petition of Jim Spencer for writ of habeas corpus.

    Writ, denied.
    ' ■ Hargis & Sams, for petitioner.

      Smith C. Matson„ Asst. Atty. Gen., for the State.
   FURMAN, P. J.

The petition for the writ of habeas corpus discloses the fact that the petitioner is confined in the county jail of Osage county, in the custody of the sheriff of said county, under and by virtue of a judgement and sentence rendered in the county court of said county against him for a violation of the •prohibitory liquor laws of the state of Oklahoma. The punishment of petitioner was assessed at a fine of $150 and 90 days confinement in the county jail. The petitioner claims that his. conviction was illegal and void because the information upon which it was obtained fails to charge any offense against the laws of the state. The charging part of the information is as follows:

‘‘That on the 3rd day of June, one thousand nine hundred and eleven, jn the said county of Osage, state of Oklahoma, the said defendant, Jim Spencer, then and there being, did then and there wrongfully and unlawfully have in his possession certain intoxicating liquor, to wit, one quart of whisky, one quart of gin and about thirty pints of beer, with the intention of violating the provisions of the prohibitory liquor laws of the state of Oklahoma.”

The objection to the information is that it does not state what section of the prohibitory liquor law petitioner intended to violate. An examination of the statute will show the offense which it creates is described in the following language:

“* * * Or to have the possession of any such liquors with the intention of violating any of the provisions of this act.”

The information alleges that the petitioner had possession of the intoxicating liquors therein described “with the intention of violating the provisions of the prohibitory liquor laws of the state of Oklahoma.” This language is certainly as broad as the statute. It charged the petitioner with having possession of such liquors with the intention of violating all of the provisions of the prohibitory liquor laws of the state. The first case coming before this court involving the question here presented was that of Michael v. State, 2 Okla. Cr. 703, 103 Pac. 1069. In that case the charging part of the information was as follows:

“That Jack Michael in the aforesaid county, on the 2nd day of May, A. D. 1908, in the county of Craig, state of Oklahoma, then and there being, did then and there willfully and unlawfully have in his possession fermented and intoxicating liquors, to wit, four pints of whisky, with intent to use the same in violating the law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

In that case it is seen that the information simply charged the intent upon the part, of the defendant to use the liquors in his possession in violating the law. The defendant demurred to the information upon the ground that it did not state facts sufficient to constitute a violation of the law. This demurrer was presented at the proper time, and was overruled, and the defendant reserved an exception. The defendant was convicted. Upon appeal it was held that the demurrer should have been sustained upon the ground that the information was too general and indefinite in not charging what law the defendant intended to violate. The information in this case is attacked for the first time after conviction, and the attempt is made by this petition for a writ of habeas corpus. If there is any formal defect in an information which might be cured by amendment, it is the duty of counsel to present it before the trial begins.

Where a defendant goes to trial and for the first time obj ects to the information or- indictment when an attempt is made to introduce testimony thereunder, or upon appeal, or by habeas corpus, the objection should be overruled if by any intendment or presumption the information o'r indictment can be sustained. See Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010. Formal defects in an indictment can never be presented by habeas corpus proceedings. Even if the information in this case was defective in not pointing out' the section of the prohibitory liquor law of this state which the defendant intended to violate, this defect was waived by the action of the petitioner in going to trial without making his objection in proper time. In no event could the case of Michael v. State, supra, be considered as authority in support of the contention of petitioner. In the case of State v. Feeback, 3 Okla. Cr. 510, 107 Pac. 443, Judge Owen, speaking for this court said:

“Counsel for the defendant insist that the action of the trial court in sustaining the demurrer was in accordance with the decision of this court in the case of Michael v. State, 2 Okla. Cr. 703, 103 Pac. 1069. The conclusions reached in the Michael case are correct under the information in that case. The information there charged the unlawful possession of the liquor, ‘with intent to use the same in violating the law.’ This language does not indicate what use was intended. The offense sought to be punished here is purely statutory, and consists in having / the possession with the intention of violating any of the provisions of the statute. It is a rule of universal application that, when a statute creates the offense and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute. Bishop in his work on criminal procedure announced the rule in this language: ‘The allegations must cover so many of the statutory terms as will show a prima facie violation of the written law, and need not cover more.’ The indictment in this case, in effect, charged the defendant with having the unlawful possession of the liquor with the intention to violate all the provisions of the statute against selling, bartering, giving away, etc. In the Michael case, supra, the court said it was necessary to allege the defendant’s intention to violate some one of the provisions. The crime is none the less complete if he intended to violate all of them. * * * Possession of the liquor with the intention of violating any provisions of the statute is a criminal overt act. This is the offense charged in the statute. The information in the Michael case was not in the language of the statute, nor was the language used equivalent to the words of the statute. To say that a man intends to use the liquor iii violating the law does not charge any offense for the reason that it is too indefinite.”

The case of State v. Feeback, supra, was approved and reaffirmed in the case of Childers v. State, 4 Okla. Cr. 238, 111 Pac. 959. This court there said:

“In this case the information charged the defendant with having in his possession the liquor described in the information with the intention of violating the prohibitory liquor law of the state of Oklahoma. Upon the authority of State v. Pceback we hold that the information in the case at bar was sufficient, and that the court did not err in overruling the demurrer thereto.”

We are of the opinion that, where an information or indictment charges that the defendant was in possession of intoxicating liquors with the intention of violating the provisions of the prohibitory liquor law of the state, the defendant is thereby sufficiently notified of the nature of the offense charged against him, and that a conviction upon such an information is valid. The writ of habeas corpus therefore will not issue in this cause, as we find that the petitioner is properly in the custody of the sheriff of Osage county.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYEE, J.

text:
    LEE HUGHES v. STATE.
    No. A-760.
    Opinion Filed April 2, 1912.
    (122 Pac. 554.)
    1. INDICTMENT AND INFORMATION — Verification — Necessity. There is no requirement of law that an information charging a felony filed in the district court be verified.
    2. SAME — Formal Requisites — Allegation as to Preliminary Examination. When an information is filed charging a defendant with the commission of a felony, the law presumes that the defendant has had a preliminary examination or has waived the same, and the information need not allege that fact. If the defendant contends that no preliminary examination has been had or waived, and he desires to raise the question, he must do so by a motion to set aside the information on that ground, and the burden of proof is on him.
    3. SAME — Necessity for Indictment — Constitutional Provision. The Constitution of Oklahoma (article 2, sec. 17) authorizes prosecutions for felonies by information, after the accused has had a preliminary examination before an examining magistrate, or having waived such preliminary examination.
    4. SAME — Writ of Error — Harmless Error — Information. No information is .insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
    5. CONTINUANCE — Writ of Error — Review — Discretion of Trial Court. The granting or refusal of a continuance in a criminal ease is largely a matter of discretion of the trial court, and this court will.not reverse the trial court on the decision of a matter which rests in the sound discretion of the court, unless it is shown that there has been an abuse of discretion.
    6. EMBEZZLEMENT — Defenses—Acts of Person Injured. The relation of debtor and creditor is not substituted for that of principal and agent or owner and broker by according to an embezzling agent or broker time to make good his defalcation, so that such agent may not thereafter be prosecuted for his embezzlement.
    7. INDICTMENT AND INFORMATION — Election Between Counts —Necessity. It is only when distinct felonies, not of the same character, are charged in different counts of the same indictment or information that the state may be required to elect upon which count it will claim a conviction.
    8. SAME — Discretion of Trial Court. The information in this ease charged in the first count the embezzlement of a ear load of apples, and in the second count the embezzlement of the money derived from the sale of the apples. The two said counts charge the same felony. Whether the state should be required to elect upon which count of the information it would stand is in a ease of this character in the discretion of the trial court.
    9. TKIAL — Discretion of Trial Court — Indorsement on Information. The ruling of the trial court in permitting the prosecution to indorse the names of additional witnesses on the information when the ease was called for trial, being within the discretion of the court, will not be reversed in the absence of abuse of discretion..
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge.

    Lee Hughes was convicted of embezzlement, and brings error.
    Affirmed.
    Lee Hughes, plaintiff in error, was prosecuted by information filed in the distinct court of Coal county by James R. Wood, county attorney, on the 11th day of March, 1909, charging him in three counts ■ with embezzlement and larceny of apples and money, the personal property of one H. A. Squires. An amended information was filed March 18th, charging embezzlement in the first and larceny in the second count. The county attorney dismissed the count charging larceny, and relied for conviction upon the count charging embezzlement; the first paragraph charging the embezzlement on November 13, 1908, of 231 barrels of apples, the second paragraph charging the embezzlement on said day of $375 in money, the proceeds of the sale of said apples, the said Lee Hughes being alleged to be the agent, broker, and assignee in trust, of the said H. A. Squires. He was put upon trial and found guilty; his punishment being assessed by the jury at two years in the penitentiary. The judgment and sentence was entered November 12, 1909. From the judgment and an order overruling á motion for a new trial, the defendant appealed by filing in this court on May 9, 1910., his petition in error with case-made.
    /. G. Ralls and G. T. Ralls, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and James R. Wood, Co. Atty., for the State.
   DOYEE, J.

(after stating the facts as above). The peti-’ tion alleges 50 assignments of error, 7 oh which go to the sufficiency of the information, and will be. considered together.

It is contended that the amended information should have been set aside on the defendant’s motion, and that his demurrer thereto should have been sustained, because it was not verified properly, and it fails to allege that the defendant had a preliminary examination, and that there is no authority of law for prosecuting by information cases of this kind. Each of these contentions have been decided adversely by this court in the following cases: Henson v. State, 5 Okla. Cr. 201, 114 Pac. 630; In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, 881, 139 Am. St. Rep. 949; Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 549. The order denying the motion to set aside and the order overruling the demurrer were properly made.

The next assignment goes to the action'of the court in overruling a motion for continuance. When the case was called for trial, the defendant filed his application for continuance, based on the absence of one Geo. W. Delk of Atoka county, for whom a subpoena had been issued and service obtained, in Atoka county. No reason appears of record why this witness did not attend. No attachment was asked for, but the court of its own motion upon overruling the application for a continuance ordered an attachment for the absent witness. The application does not show diligence, and no abuse of discretion appears from the record. The rule is well settled that the granting or refusal of a 'continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court, and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment. Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307. We think the application was properly denied.

For the same reason the contention that the court erred in permitting the prosecution to indorse the names of additional witnesses on the information, when the case was called for trial, is without merit. Steen v. State, 4 Okla. Cr. 309, 111 Pac. 1097.

The overruling of the defendant’s challenge for cause to the juror Homer Landon is assigned as error. This assignment is without merit. Thé examination of this juror did not show him to be disqualified within the statute, and the decisions of this court thereon.

The eleventh assignment of error is that the court erred in overruling the defendant’s motion to require the prosecution to elect upon which count it would stand. Upon the trial it appeared without contradiction that the prosecuting witness, Squires, shipped a car load of apples from his home at Wallace, Mo., to the defendant at Lehigh, Okla.; that the defendant was to sell the same and retain 10 per cent. as. his commission; that the defendant disposed of all except a few bushels. Squires, coming to Lehigh, demanded the proceeds, and the defendant told him he would settle on a basis of paying Squires $375. This •amount Squires agreed to accept in full. The defendant then said that he did his banking business at Atoka, and he would go there and see his banker, and make arrangements for settlement. The defendant left the state that night. The defendant never paid, or caused to be paid, to Squires the money received for the apples, and kept the same and converted it to his own use. This was the transaction alleged as embezzlement in the first two paragraphs of the information. While as a matter of pleading the two paragraphs constitute but one count, the parties and the court considered them as two counts, the first charging embezzlement of the apples and the second embezzlement of the money derived from the sale of the apples. Treating these paragraphs as separate counts, there was no prejudice to the defendant in the refusal of the court to require the state to elect.

No information is insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. It is well settled that, where one felony is set out in various ways in different counts to meet diversities in the proof, no election of counts is required. The state may be required to elect upon which count of an indictment or information it will claim conviction only when felonies not of the same character are charged in different counts in the same indictment or information.

Whether the state should be required to elect upon which count of the information it would stand is in a case of this character in the discretion of the trial court. In this case it was all a question of intent as to whether or not the defendant was guilty of embezzlement of the apples or of the money he derived from their sale, and this was for the jury to pass upon under all the proof in the case, and the court very properly left this fact to be determined by the jury under the instructions given.

After the state had concluded' the introduction of its testimony, the defendant’s counsel filed a demurrer to the evidence, and asked the court to instruct the jury to return a verdict of not guilty. The question presented is this: Is there any evidence tending to show the commission by the defendant of the offense charged? A sufficient answer is found in the statement herein of the undisputed facts, and this bare outline of the facts by no means represents the full force of the proof presented by the prosecution. In fact, we think it conclusively shows the guilt of the defendant of the crime charged. The defendant did not testify as -a witness in the case. The contention that the relation of creditor and debtor, and not that of principal and agent or owner and broker, was created because Squires agreed to accept $375 in settlement, is without merit.

The remaining assignments are based upon instructions requested by defendant’s counsel and refused, and on the instructions given by the court. We have examined these assignments of error, and do not think any of them are well taken. The instructions given fairly and correctly state the law of the case.

Of the 50 assignments of error argued in the defendant’s brief but one is supported by citation of authority. We refer to this fact for the purpose of saying that this practice of alleging unfounded assignments of error and arguing the same without the citation of authority to support the contentions made should not be indulged in. They presumably cost counsel effort and time, and they needlessly occupy the time of the court and they avail nothing.

Inasmuch as the conclusion reached by the jury is a just one from the evidence, and finding no prejudicial error, the judgment of the district court of Coal county is affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: FURMAN, P. J. FURMAN, P. J.

text:
    ROSCOE HADLEY v. STATE.
    No. A-1120.
    Opinion Filed April 8, 1912.
    Rehearing Opinion April 18, 1912.
    (122 Pac. 728.)
    1. INTOXICATING- (LIQUORS — Criminal Prosecutions — Sufficiency of Evidence. For evidence sustaining the charge of having possession of intoxicating liquors with intent to sell the same, see opinion.
    2. APPEAL — Record—Case-Made. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the ease-made contains proper recitals of what occurred duly certified to by the trial judge.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

    Roscoe Pladley was convicted of violating the prohibitory liquor law, and appeals.
    Affirmed.
    F. V. O’Hare, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

Appellant was found guilty in the superior court of Muskogee county for violating the prohibitory liquor law of the state, and his punishment was assessed at a fine of $200 and 30 days’ confinement in the county jail.

The fifth ground relied upon by, appellant in his motion for a new trial is as follows:

“Because the jury which tried the defendant was not impaneled as provided by law, and was not a legal jury, in this, to wit: That during the same term of the superior court of Muskogee county, Okla., at which this defendant was tried, and on the day immediately preceding the trial of this defendant, a jury was duly impaneled and sworn in said court to try the case of the State of Oklahoma v. S. H. Pate. And that after said jury had been impaneled and sworn-to try said cause, a continuance of the ■cause of the State of Oklahoma v. S. PI. Pate was had by the court until the following morning; the said jury being admonished by the court that they were still in the trial of said cause. And that on the calling of the case of the state of Oklahoma against this defendant, four of the said jurymen, then engaged in the trial of the case of the State of Oklahoma v. S. H. Pate, were impaneled and sworn to try the cause against this defendant, and the said four jurymen did so sit on the trial of this defendant. That this defendant had no knowledge or information that the aforesaid jurymen were engaged in the trial of the case of the State of Oklahoma v. S. PI. Pate until after the verdict in this case had been rendered.”

This motion for a new trial was duly sworn to by appellant, but the transcript of the record does not contain any statement or certificate of the trial judge on this subject. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the case-made contains proper recitals of what did occur, duly certified to by the trial judge. See Rial v. State, ante, 122 Pac. 558. We therefore cannot consider this question on appeal.

Appellant insists that the testimony does not support the verdict. We have carefully examined the record, and we do not see how the testimony of the state can be true and the appellant can possibly be not guilty. It was proven: That appellant was conducting a so-called drug store in the city of Muskogee. That on the 17th day of December, 1910, his place of business was searched for intoxicating liquors by the officers of -Muskogee , county. That the officers went back behind the prescription case, and there they found a box five feet long and four feet wide sitting on the floor. That they moved this box and found a hole cut in the floor. That they raised up the lid over this hole and there found concealed 12 quarts of whisky. They also found one or two barrels of empty beer bottles in this room. There was a bar on the south side of the room. Appellant was present when the officers removed the box and found the hole in the floor and discovered the whisky. That when the officers found the whisky appellant laughed and said he had worked almost all night the night before to make this place. It 3s inconceivable that appellant should have gone to this trouble to conceal the whisky if he was keeping it in his drug store for a lawful purpose. It is also proven that a few days prior to the 17th day of December the place of business of appellant had been searched for intoxicating liquors by the officers, and they found there a quantity of whisky, beer, and wine; that they found the whisky under the floor by the prescription case. The state also introduced a certificate of a United States license issued to appellant and one Tom Hadley to engage in the business of retail liquor dealers in Muskogee, dated July, 1910, on which the sum .of $25 tax was paid. This certificate was duly signed by the internal revenue collector for the district of Kansas. We are at a loss to see how a stronger case could be made out. Appellant took the witness stand in his own behalf and testified he was a legally registered pharmacist, and had been since statehood, but did not in any manner deny one word of the testimony offered by the state. We think that the evidence conclusively establishes the guilt of appellant.

The judgment of the lower court is therefore in all things affirmed.

DOYEE, J., concurs; ARMSTRONG, J., concurs in result.

Opinion on Rehearing.

FURMAN, P. J.

Counsel for appellant has filed a motion for a rehearing upon the following ground:

“That the said decision is based on an entirely erroneous conception of the record in the case, in this, towit: That in said opinion the court states the following: ‘The state also introduced a certificate of a United States license issued to appellant and one Tom Hadley to engage in the business of retail liquor dealers in Muskogee, dated July, 1910, on which the sum of $25 was paid. This certificate was duly signed by the internal revenue collector for the state of Kansas.’ This recital in the opinion of that portion of the evidence referred to is wholly erroneous, for the reason that the revenue license referred to was issued to R. E. Hadley and Tom Hadley. . There is no reference whatever in the license to the appellant, Roscoe Hadley, nor is there even a suggestion in the testimony that Roscoe Hadley and R. E. Hadley were the same person.”

We are always not only willing, but anxious, to correct any errors which we may make in our opinions, and for the purpose of enabling us to do this we look with favor upon motions for a rehearing; but at the same time we respectfully request counsel to carefully examine the records, and be certain that a mistake has been made, before filing such motions, for, unless well taken, they entail a great deal of unnecessary labor upon the members of this court, who are already worked to the limit of human endurance. If counsel for appellant had examined the record carefully, they never would have filed this motion.

The certificate of the United States license referred to in the opinion is in the following language •,

“Record of Special Tax Payers and Registers. District of Kansas. Page 51. Page 8: Name, Busy Drug Store, Tom R. Hadley and R. E. Hadley; business, R. R. D.; place, Muskogee; from what time, July, 1910; amount of tax, $25.00; date of payment or issue of certificate, July 5; serial No. of stamp, 110,902; serial No. of form 11, 862; remarks, 110 North 2d street.”

When the state’s witness, J. D. Robbins, was on the stand, he testified as follows:

“Q. Do you know the defendant? A. Yes, sir; I do. O. Do you know of your own knowledge that Roscoe Hadley is R. E. Hadley? A. Yes, sir; he is.”

The same witness testified that the place of business of appellant was 110 North Second street, in the city of Muskogee. When the witness Vernon Lofton was on the stand, he testified that he knew appellant, and his place of business was on North Second street, in the city of Muskogee, and was known as the “Busy Drug Store.”

The license in this case was issued to Tom R. Hadley and R. E. Hadley to conduct the business of retail liquor dealers in the Busy Drug Store at 110 North Second street, in the city of Muskogee. While the appellant was prosecuted as Roscoe Hadley, yet when he took the stand as a witness in his own behalf he was sworn and testified as R. E. Hadley. We therefore cannot agree with counsel for appellant that there is not even a suggestion in the testimony that R. E. Hadley and Roscoe Hadley were the same persons. On the contrary, we are of the opinion that the testimony for the state on this subject is positive and direct, and it was also conclusively proven that Roscoe Iiadley and R. E. Hadley are one and the same person by the evidence of appellant while on the witness stand.

Motion for a rehearing is therefore denied.

ARMSTRONG and DOYLE, JJ., concur.


text:
    JOHN HALL v. STATE.
    No. A-592.
    Opiuion Filed April 6, 1912.
    (122 Pac. 729.)
    INTOXICATING LIQUORS — Criminal Prosecution — Punishment. Where on appeal from a conviction for selling a pint of whisky the evidence shows that the defendant, a negro boy, was induced by private detectives to so violate the prohibition law, this being his first offense, and the maximum penalty was imposed by the court on the recommendation of the jury, and there were irregularities on the trial insufficient to constitute reversible error, the court being of opinion that the punishment assessed is excessive, will modify the sentence to 60 days' confinement and a fine of $100.
    (Syllabus by the Court.)

      Appeal from Kingfisher County Court; John W. Graham, Judge.

      John Hall was convicted of violating the prohibition law, and appeals.
    Modified.

      John T. Bradley, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was informed against for selling on March 18, 1909, one point of whisky to Karl Howey, for the sum of $1. Upon a trial had he was found guilty by the verdict of a jury with a recommendation to the court to impose the maximum penalty. Conformably to the recommendation, the court sentenced the defendant on October 9, 1909, to serve a term of six months in the county jail and to pay a fine of $500. From which judgment he appeals.

The questions raised by the errors assigned here insisted upon are “that the penalty assessed in this case was excessive, that the jury was biased and prejudiced against the defendant.”

The proof on the part of the prosecution, briefly stated, is as follows: Karl Howey, who verified the information, testified that on March 18th he met the defendant near the First National Bank in Hennessey and asked him if he had any whisky. Pie said there was a bottle in a wagon box back of Goodwin’s store, that he bought it for another man and the man did not take it, and said, “You give me a dollar and I will go down and get it.” That he (Howey) and Earl Folk walked down there; that the defendant picked up the bottle and said, “Here it is,” and laid it down in the wagon box again. That witness then picked up the bottle; that he had given the defendant a dollar when he first met him. That he and Folk went to' the Rhodes Hotel and opened the bottle in the presence of J. M. Rogers and R. M. Dudley, two other private detectives; that this was about half past two in the afternoon. That he was receiving $5 a day with three other detectives from Wichita. That he asked the, defendant for whisky because he was the first man he met; that the wagon was about half the length of the courtroom behind the. Rhodes Hotel. . . ,

Earl Folk testified that he was a private detective and lived at Wichita, Kan., that he was in Hennessey on March 18th; that he saw the defendant talking with Karl Howey, but did not hear what was said, but could see their hands passing back and forth. That he went with Howey to a wagon box in the rear of the Rhodes Hotel, that the defendant was with them, and picked a pint of whisky up and says, “Here it is,” and then laid it down. That Howey took it and they went to the Rhodes Hotel where they were staying with Rogers and Dudley, and gave it to Mr. Rogers. That he was getting $5 a day for working up liquor cases.

J. M. Rogers testified that he was in the secret service business at Wichita, Kan.; that Howey and Folk brought him a bottle of whisky to the Rhodes Hotel, and he marked the bottle: “John Hall, 2:25 p. m., Thursday, March 18, 1909.”

R. M. Dudley testified that he resided at Wichita, Kan., and was a private detective; that he saw the defendant in Hennessey on the 17th, 18th, and 19th of March.

On the part of the defense, several witnesses testified that the defendant, a negro boy, had lived with his father in and around Hennessey for about eight years; that they did not see him in town for about a week preceding March 22d, and that at the time he was picking cotton bolls on a farm near Hennessey.

There was no evidence that the defendant ever shipped in or received any whisky, or had any in his possession, or was connected with any place where whisky was sold, or that he had ever otherwise offered whisky for sale, or that he had ever been convicted of any offense.

Under the peculiar circumstances of this case, we are inclined to think that six months in jail and a fine of $500 for his first offense upon a negro boy without property or means is excessive. Allowing the defendant a credit of ?>2 per day on the fine for each day in jail after his jail sentence expires, it amounts to fourteen months in jail for procuring a pint of whisky for white detectives who evidently schemed to induce this negro boy to violate the prohibition law.

While the jury are the sole and exclusive judges of the facts proven, we are inclined to believe that the court should have ignored its recommendation as to the punishment. The question of punishment was not submitted to the jury. For this reason we believe that the judgment and sentence should be modified. The punishment of the law for offenders is not only to repress crime, but also to reform the offender. The moral responsibility of the offender, his knowledge of right and wrong, and his general want of knowledge, should be considered — what is the light against which he has been sinning; for surely it may be said that it is as true now as of old that “he that knoweth his master’s will, and doeth it not, shall be beaten with many stripes, but he that knoweth it not, with few.”

In his motion for a new trial, the defendant alleges prejudice on the part of the jury in recommending the maximum punishment and offered to prove statements made by jurors supporting this contention, which offer was rejected by the court. Other irregularities not amounting to reversible errors appear.

For the reason stated, the judgment of the lower court is hereby modified by assessing his punishment at 60 days’ confinement in the county jail of Kingfisher county, and to pay a fine of $100, said fine if not paid to be satisfied by imprisonment as provided by law.

The judgment and sentence as modified is hereby affirmed and the cause remanded to the county court of Kingfisher county, with direction to enforce the judgment and sentence as modified.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    TOM ANDERSON v. STATE. JOE LIGHTLE v. STATE. J. F. FIELDS v. STATE.
    Nos. A-1074, A-1075, A-1076.
    Opinion Filed April 8, 1912.
    (123 Pac. 442.)
    1. COURTS — Superior Court — Jurisdiction. The superior courts of Oklahoma have concurrent jurisdiction with the county courts to hear and determine misdemeanor cases.
    2. SAME — Stare Decisis — Constitutional Questions. Principles of public policy demand a stable and fixed construction of constitutional law; and that which has been deliberately decided should not be unsettled, unless clearly erroneous.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

    Tom Anderson, Joe Lightle, and J. F. Fields were separately convicted of violation of the prohibitory law, and appeal.
    Judgments affirmed.

      S. M. Rutherford and Chas. A. Moon, for appellants.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

On the 31st day of January, 1911, appellant J. F. Fields was convicted in the superior court of Muskogee county for a violation of the prohibitory liquor law of the state, and his punishment was assessed at 30 days’ confinement in the county jail and a fine of $200.

On the 1st day of February, 1911, appellant Tom Anderson-was convicted in the superior court of Muskogee county for a violation of the prohibitory liquor laws of the state, and his punishment was assessed at 30 days’ confinement in the county jail and a fine of $200.

On the 2d day of February, 1911, appellant Joe Lightle was convicted in the superior court of Muskogee county for a violation of the prohibitory liquor laws of the state, and his punishment was assessed at 30 days’ confinement in the county jail and a fine of $250.

But one question is involved in these three appeals, and that is that the superior court of Muskogee county was without jurisdiction to hear and determine either of said cases. Counsel for appellants have filed an able brief in support of their contention. If time and the volume of business which we have on hand would permit, we would be glad to reply at length to the argument made and authorities cited by counsel for appellants, but this is not necessary; for we regard this question as settled in Oklahoma. See Ex parte Whitehouse,, 3 Okla. Cr. 89, 104 Pac. 372. After the best investigation we were able to give this question, we there came to the conclusion that the superior courts of this state did have jurisdiction to hear and determine these cases. Notwithstanding the able brief of counsel for appellants, we are still of the opinion expressed in the Whitehouse case.

In Burks v. Walker, 25 Okla. 360, 109 Pac. 547, the Supreme Court of Oklahoma, Justice Hayes speaking for the court, said:

“It is also contended that section 2 of the act [Sess. Laws 1909, c. 14, art. 7] is in conflict with section 12 of article 7 of the Constitution, in that it gives to the superior court jurisdiction concurrent with the county court over misdemeanor cases, and that, without this provision conferring jurisdiction of misdemeanor cases upon the superior court, the act would not have been passed; and therefore the entire act should be struck down. Section 12, art. 7, was before the Criminal Court of Appeals for consideration and construction in Ex parte Whitehouse, 3 Okla. Cr. 99, 104 Pac. 372, wherein that court, in an able and exhaustive opinion written by Mr. Judge Owen, held that the provision of section 12, conferring upon the county court exclusive jurisdiction in all misdemeanor cases, except those cases of which it had concurrent jurisdiction with justices of the peace, existed only until otherwise provided by the Legislature; and upon this question we concur in the reasoning and conclusion reached by the court in that case.”

This opinion was concurred in by Chief Justice Kane and Justices Dunn and Turner; Justice Williams not participating.

Principles of public policy demand a stable and fixed construction of constitutional law; and that which has been deliberately decided should not be unsettled, unless clearly erroneous.

The question of the constitutionality of the provisions of the statute which confer jurisdiction upon the superior court in both civil and criminal cases has been directly submitted to and expressly passed upon by this court, and also by the Supreme Court, in the case above quoted. This question was again submitted to and upheld by the Supreme Court in the case of Fire Insurance Co. v. Phillip, 37 Okla. 334, 111 Pac. 334. The opinion is by Justice Dunn, and was concurred in by all of the Justices. Justice Dunn first quoted with approval from the case of Burks v. Walker, hereinbefore cited, as follows:

“A careful reading of the various provisions of the Constitution by which jurisdiction is conferred upon all the courts, except the Supreme Court, will readily disclose that it was the policy of the framers of the Constitution in a great measure to leave the question of jurisdiction of the various courts of the state subject to legislative disposition and control. And, when the condition of the. courts and their dockets at the time of the framing of the Constitution is recalled, it can be readily understood why the framers of the Constitution did not undertake to fix by hard and fast rule the jurisdiction of the inferior courts of the state. Two different judicial systems had theretofore prevailed within the territory now constituting the state. The dockets of all the courts were badly crowded; and it was impossible to foretell just what division of jurisdiction between the various courts would enable the courts of the state to dispose of the business already accumulated upon the dockets, and that might reasonably be expected to arise.”

Justice Dunn then proceeds as follows:

“This being true, it remains to be determined just what the effect of the act creating the superior court was with reference to cases pending on appeal from judgment of justices of the peace in the county court. Section 3 thereof (Sess. Laws Okla. 1909, p. 181) provides: 'Every such court shall have and exercise concurrent jurisdiction with the district court in all proceedings, causes or matters, and concurrent jurisdiction with the county court in all civil and criminal matters, except matters of probate.’ Herein is fixed the jurisdiction of the superior court. It is vested with concurrent jurisdiction with the county court in all civil and criminal matters, except matters of probate. ‘Concurrent jurisdiction’ was defined by the Supreme Court of the territory of Oklahoma, in the case of Rogers v. Bonnett, 2 Okla. 553, 37 Pac. 1078, wherein, quoting from authority, the learned Justice McAtee, who prepared the opinion for the court, said: * “Concurrent” is “having the same authority, * * * such and such courts have concurrent jurisdiction; that is, each has the same jurisdiction.” Bouv. Law. Diet., p. 311. “Concurrent jurisdiction is that of several different tribunals, each authorized to deal with the same subject-matter.” Rapalje & Lawrence’s Law Diet. The probate court has, therefore, the same authority, and, is authorized to deal with such a case in the same manner and to the same degree and with the same jurisdiction, as that of the district courts.’ See, also, State v. Sinnott & Stone, 89 Me. 41, 35 Atl. 1007, and Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491, 30 N. E. 1050.

“In the section of the statute last referred to there is no limitation whatsoever upon the character of the jurisdiction taken by the superior court under this act, with the exception of matters of probate. In all other things, aside from matters of probate, the superior court has jurisdiction identical with the county court in matters within that court’s jurisdiction.

“The conclusion to which we have come, in our judgment, finds support, also, in the language contained in section 10 of the act. It will be noted therein that it is provided that: ‘The judge of the district court of the county or counties in which said superior court is created by operation of this act, shall, upon motion •of the plaintiff in any cause now pending in said district court, or which may hereafter be filed in such district court, transfer such cause or causes by order to the superior court. * * * and the county court in those,counties in which a superior court is created by operation of this act, shall likewise transfer all civil causes within the jurisdiction of the superior court hereby created to such superior court upon motion of plaintiff in any such cause or causes, and the same shall stand for trial in the said superior court.’

“Referring to this section of the act, this court said, in the •case of Burks v. Walker, supra: ‘By this provision, the Legislature, in creating the court with jurisdiction concurrent with the district and county courts, attempted to afford an opportunity to relieve the dockets of the district and county courts by permitting a cause already instituted to be transferred to the superior court for final disposition, and at the same time not deprive the plaintiff in any such action of the opportunity to chose the forum in which he will prosecute his action, which opportunity all statutes conferring concurrent jurisdiction of any cause upon two or more courts affords to the plaintiff. Without this provision in the act the plaintiff in any cause already instituted in the district or county courts might, by dismissing the same without prejudice, reinstate it in the superior court. No reason appears why he should not be permitted to do directly that which he might do indirectly without this provision of the statute. Where two or more courts have concurrent jurisdiction of the same cause of action, necessarily the statute conferring such jurisdiction gives to the plaintiff the opportunity of selecting the forum in which he shall institute and prosecute his action.’ ”

In this opinion, Justice Dunn expressly stated that the superior courts “are vested with concurrent jurisdiction with the county court in all civil and criminal matters, except matters of probate.” And, again: “In all other things, aside from matters of probate, the superior court has jurisdiction identical with the county court in matters within that court’s jurisdiction.”' With these decisions from both courts, we are at a loss to understand how counsel can consider the jurisdiction of superior courts in such cases as an open question. Even if we were in doubt as to the correctness of the views expressed in the Whitehouse case, as to which we have none, it would be an act of gross discourtesy on our part to the Supreme Court to disregard what they had expressly decided and deliberately declared in the two cases above quoted from. While this court is expressly vested by the Constitution with exclusive appellate jurisdiction in all criminal cases, yet we have always endeavored to treat the decisions of the Supreme Court with the utmost respect, whenever they involve any matters coming before us for decision; and we are not disposed to differ with that court, unless we should feel compelled to do so from absolute necessity, because no possible good can come from an unnecessary and unseemly conflict in the decisions of the two appellate courts of the state, and such conflict will never arise by any wanton act on our part.

In addition to what has already been said, even if this was an open question, there is another consideration which we think should have a controlling influence in its determination. No one clause of the Constitution should be construed by itself, and to the exclusion of the other portions of the same instrument; but all portions of the Constitution, relating to the same question, should be construed together, and, as far as possible, harmonized with each other. The Constitution in express terms gives the Legislature power to create inferior courts, but does not attempt to say what the jurisdiction of such inferior courts shall be. It is a familiar principle of law that, whenever an express power is given to do a certain thing, this carries with it the right to do all other things which are necessary for the complete exercise of the power expressly granted. It would indeed be a vain thing for the Constitution to give the Legislature power to establish inferior courts, and then leave them powerless to establish the jurisdiction of such courts. Such evidently was not the intention of the framers of the Constitution or the people who voted for and adopted it; for that instrument, in a great measure, leaves the question of the jurisdiction of the inferior courts of the state subject to legislative disposition arid control. No court has the rightful power to declare any law unconstitutional, unless it is in irreconcilable conflict with the Constitution. Every presumption must be indulged in favor of the constitutionality of the law. When the Legislature enacts a law and the Governor approves it, they are in duty bound to consider the question of its constitutionality, and it will not be presumed that they were mistaken or violated their oaths in this respect; and courts have no rightful power to set aside their decisions of this question, where it is possible to harmonize the law with the Constitution. Courts should be exceedingly careful in considering the constitutionality of a law.

We therefore decline to recede from the position taken in the Whitehouse case. The jurisdiction of the superior court of Muskogee county to try these cases is upheld and sustained; and the judgment in each of said cases is affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    S. G. SMITH v. STATE.
    No. A-699.
    Opinion Filed April 10, 1912.
    (122 Pac. 732.)
    1. FALSE PRETENSES — Elements—Cause of Loss. It is not necessary that the false pretense should be the sole inducement which moved the prosecutor to part with his money. It is.sufficient if it materially contributed to this end, and that without the false pretense he would not have parted with his money.
    2. SAME — Sufficiency of Evidence. Section 6837, Comp. Laws 1909, of our Criminal Procedure provides that, in a prosecution for obtaining money by false pretense, the defendant cannot be convicted -if the false pretense was expressed in language alone, unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. Held, that under the evidence in this case the testimony of the prosecutor was not sufficiently corroborated.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsburg County; A. T. West, Judge.

    S. G. Smith was convicted of false pretenses, and appeals-
    Reversed.
    /. H. Wilkins and Arnote & Monk, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and B. G. Spilman, Asst. Atty. Gen. (R. B. Gish, of counsel), for the State.
   DOYLE, J.

The plaintiff in error was indicted in the court below for obtaining $10 by false pretenses, and on his trial was found guilty by the jury and his punishment assessed at six months’ confinement in the county jail. October 14, 1909, judgment and sentence was entered accordingly. From the judgment defendant appeals. The allegations in the indictment are that the defendant induced Landes Bros, to cash a check for $10, executed by one Harry Hamilton, by falsely and fraudulently representing that said Hamilton had the money on deposit with the People’s State Bank at Kingfisher. The check was also indorsed by the defendant.

Of the numerous assignments of error, it is only necessary to discuss the question whether the evidence sufficiently proves the offense charged in the indictment.

It is claimed by the defendant that it does not. In our opinion this contention is well founded. It appears from the evidence that the defendant presented the check to one R. L. Landes, iind asked him to cash it; that Landes told the defendant that he did not care to cash the check. Thereupon the defendant told Landes that the maker of the check was all right, and that he had the money in the bank at Kingfisher, and was a merchant there, and that the defendant would indorse the check, and that his indorsement in itself would make the check good. Landes then cashed the check. It further appears that the check was ■never presented to the bánlc; that payment thereon was never demanded except from the defendant; that Landes, having heard the check was no good, demanded of the defendant by reason «of his indorsement thereon that he return the $10; and that defendant paid to Landes the money so received on the check. The prosecuting witness Landes testified that he would not have cashed the check without the defendant’s indorsement thereon, and the fact that he demanded and received from the defendant the money paid on the check, without attempting to collect it from the bank, tends to. show that he parted with his money without relying upon the representations made by the defendant.

While it is not necessary that the false pretenses should be the sole inducement which moved the prosecuting witness to part with his money, it is necesary to show that they materially contributed to that end, and that without such false pretenses he would not have parted with his money. The defendant requested an imperfect instruction to this effect, which* the court refused to give.

In the case of Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628, this court said:

“While it is a rule approved by this court that, where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and, ordinarily, the verdict approved by the trial court' will be allowed to stand, a case of this character, however, is exceptional. We have carefully examined and fully considered all of the testimony, as shown by the record, and we are of opinion that the evidence is not sufficient to sustain the verdict. In order to justify a conviction upon a trial of an indictment for false pretenses, it must appear that the prosecutor parted with his money by reason of some of the pretenses set forth in the indictment, or, if not solely by reason of such pretenses, that they at least materially influenced his action. In the absence of evidence that the prosecutor relied upon the pretenses charged, the essential averment in such an indictment (that the defendant obtained the money by reason thereof) would not be supported; and, while it is not necessary that this fact should be shown by direct proof, it is competent to establish it by direct declarations-of the prosecutor, and, in the absence of direct proof, it may be inferred from the facts and circumstances proved. Under our statute, it is necessary, before the defendant can be convicted, where the false pretense was expressed in language alone, that it be proven by the testimony of at least two witnesses, or of one witness and corroborating circumstances.”

Section 6837 (Comp. Raws 1909) of Criminal Procedure provides, in prosecutions for false pretenses, that:

“Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. But this section does not apply to prosecution for falsely representing or personating another, and in such assumed character, marrying or receiving money or property.”

Applying the test which the statute prescribes, the pretenses alleged were not sufficiently corroborated.

For the reasons stated, the judgment is reversed.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    MOSE CAIDO v. STATE.
    No. A-623.
    Opinion Filed April 10, 1912.
    (122 Pac. 734.)
    1. LARCENY — Indictment—Sufficiency. In a prosecution for larceny of a domestic animal, an information which charges that the defendant "unlawfully, fraudulently, stealthily, and feloniously did take, steal, and carry away from the possession of the owner ’ ’ certain personal property, "without the knowledge or consent of the owner, and with the felonious intent to deprive the owner thereof, and with the intent to convert the same to the use of the taker," sufficiently charges a felonious intent to convert the same to his (the taker’s) own use.
    2. TRIAL — Directing Verdict. Where there is evidence tending to prove that the defendant, committed the offense charged in the information, it is not error for theo court to overrule a motion at the close of the evidence, requesting the court to advise the jury to acquit the defendant on the ground that the evidence is insufficient to warrant a conviction.
    (Syllabus by the Court.)

      Appeal from District Court, Okfuskee County; John Caruthers, Judge.

    Mose Caido was convicted of larceny, and appeals.
    Affirmed.

      C. B. Conner and W. A. Huser, for plaintiff in error.

      Chas. West, Atty.'Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYEE, J.

The plaintiff in error was tried, convicted, and sentenced to serve a term of thirteen months’ imprisonment in the state penitentiary on an information, the charging part of which reads as follows:

“That within said county of Okfuskee and state of Oklahoma, on the 6th day of April, 1909, one Mose Caido unlawfully, fraudulently, stealthily, and feloniously did take, steal and carry away from the possession of the owner, Chas. Puffin, one domestic animal, to wit. one two-year-old heifer calf, without the knowledge or consent of him, the said Chas. Puffin, and with the felonious intent of him, the said Mose Caido, to deprive the owner thereof, and with the intent to convert the same to the use of him, the said Mose Caido, contrary to,” etc.

There are but two alleged errors relied on for a reversal in this case. First, that the court erred in overruling the demurrer to the information. It is insisted by the defendant’s counsel that the information is fatally defective in that it does not charge that the animal was taken with the felonious intent to convert the same to the use of the taker.

We are of opinion that the information in this case sufficiently alleges the unlawful and felonious intent to deprive the owner of the property, and with the felonious intent to convert the same to the taker’s own use. Barbe v. Territory, 16 Okla. 562, 86 Pac. 61; Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883.

At the close of the state’s evidence, the defendant entered a demurrer to the evidence and moved the court to direct the jury to return a verdict of not guilty, which was overruled and denied by the court,' and the ruling of the court is assigned as error. This assignment is without merit.

The sufficiency of the evidence to show the commission of the crime and the guilt of the defendant is not. a question in the discretion of the court. If there is any evidence tending to prove that the defendant had committed the crime charged in the in-’ formation, it is not error for the court to overrule a demurrer thereto or to deny the defendant’s request to advise the jury to acquit on the ground that the evidence is insufficient to warrant a conviction.

This court will not review the evidence in a case for the purpose of passing upon the weight and credibility ■ of the evidence. We are clearly of the opinion that the defendant had an impartial trial.

The judgment of the district court of Okfuskee county is therefore affirmed.

FURMAN, P. J.. and ARMSTRONG, J., concur.