text:
    CHESTER HOWARD v. STATE.
    No. A-10328.
    Dec. 6, 1944.
    (153 P. 2d 831.)

      A. 0. Manning, of Fair view, and Kathryn Yan Leuven, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Chester Howard, was charged in the district court of Grant county with the crime of attempted rape; was tried, convicted of assault and battery with the punishment left to the court; the defendant was thereupon sentenced to serve 30 days in the county jail and pay a fine of $100 and costs, and has appealed.

Several assignments of error are presented in defendant’s brief, but it is only necessary to consider the question which is raised as to the sufficiency of the evidence to sustain the conviction.

The prosecutrix, Inez Howard, lived at Walters, Okla. She had formerly been married to Gerald Ledbetter. On January 15, 1941, she was divorced from Ledbetter. Subsequently, she met Wayman Howard, son of the defendant, who was working at Lawton. The defendant, Chester Howard, lived on a farm about 14 miles Avest of Pond Creek, in Grant county. On May 13, 1941, the prosecutrix and Wayman Howard left Walters and drove to Wellington, Nan., Avhere they were married. As they were returning from Wellington, Kan., Wayman HoAvard was arrested in the town of Pond Creek about dark and incarcerated in the county jail, at Medford, for allegedly giving a hot check.

The alleged attempted rape occurred later that night on a trip by the prosecutrix with the defendant, her father-in-laAV, in his car from Pond Creek to Medford.

The prosecutrix testified that after Wayman Howard was arrested, she went to York’s Laundry to spend the evening with the Gibsons and Juanita York. That Floyd Gibson notified the defendant that his son was in jail, and about 9:30 p. m. the defendant came to York’s Laundry and talked to the prosecutrix about the charge filed against Wayman Howard. This was the first time that the prosecutrix and the defendant had ever met. That about 1:30 a. m., she received a telephone call from the defendant in which he asked her to meet him at the back of the laundry; that she had retired for the evening at that time and Avas sleeping in a thin pair of pajamas which she had borrowed from Juanita York; that she slipped a robe over the pajamas and met the defendant at the rear of the laundry; that defendant suggested that they go to see Wayman Howard in the jail as Wayman wanted to see the prosecutrix; that she then got into the car with the defendant without putting on any additional clothes and purportedly started for Medford; that the defendant started telling her dirty jokes and about the things he used to do when he was a doctor; that about one mile from Pond Creek the defendant stopped his car and tried to put his arm around her and kiss her; that they only stayed for a few minutes and at her request they drove on to Medford to see Wayman; that they arrived at Medford and drove around the courthouse twice but did not stop; that they then drove out west of Pond Creek and stopped the car; that the defendant wrestled with her and tried to take her robe and pajamas off; that he had hold of both of her wrists; that they struggled until after 6 o’clock in the morning, or from about 2:30 until 6:30; that they were struggling during this entire period of time; that during this entire period the defendant did not kiss her and did not mention committing an act of sexual intercourse with her. The prosecutrix was about 24 years of age. Her husband was released from the jail about 2:30 the next afternoon and they returned to Walters; that the prosecutrix and Wayman Howard separated after living together about 18 days and that she received an annulment of her marriage to Wayman Howard in December of 1941. No complaint was made against the defendant for over two months after the alleged assault occurred.

The defendant testified that after he had met the prosecutrix about 9 :30 p. m., he drove with Mr. Gribson to see the county attorney to ascertain the seriousness of the charges against his son; that they had to wait quite a while before they could see the county attorney; that the county attorney advised them that it would take about §50 to straighten out the charges against Wayman; that after they talked to the county attorney they drove back to the laundry to advise the prosecutrix, Inez Howard, and to see whether Wayman Howard had the money to take care of disposing of the charges filed against him; that they drove behind the laundry and Floyd Gibson called Inez to the door; that Gibson left when Inez Howard came to the car; that defendant advised prosecutrix that it would take about $50 to take care of the charges; that prosecutrix said she could get the money by wiring to Wayman’s boss; that prosecutrix then said, “Take me up to Medford,” and he remonstrated that it Avas too late to go as it would not do any good to go up there at such an hour, and that prosecutrix said, “Well, I’ll get to see where my Honey is”; that after some argument, he finally agreed to drive her to Medford; that the car Avas never stopped between Pond Creek and Medford, and that when they arrived at Medford, they drove, to the jail and around the courthouse twice, but never did stop; that as he started to leave town, the prosecutrix reached over and got hold of the steering wheel and said, “Let’s go around and around again”; that it Avas about 22 or 23 miles from Pond Creek to Medford, and that after they had circled the courthouse again, he drove to Pond Creek without stopping and let the prosecutrix out at the laundry about 2 a. m., and did not see her again until the time of the preliminary hearing several months later. The defendant specifically denied that he ever attempted to commit an act of sexual intercourse Avith the prosecutrix or that he ever tried to kiss her or put Ms arm around her or to do any of the things testified to by the prosecutrix. That he was back at his home in bed by 2:30 in the morning. The defendant further testified to refute certain statements of the prosecutrix concerning his holding her, that he had a deformed wrist and band, and he allowed the jurors to feel of his hand to show that there was no strength or grip in the hand. He further testified that he had had an automobile accident in which he had been seriously injured and that threé or four vertebrae in his back had been misplaced and deformed by reason of that accident to where he did not have any physical strength, and he further described other physical ailments to show that it would have been impossible for him, if he had so desired, to have committed the sexual act.

The wife of the defendant corroborated his testimony as to his physical condition, and further stated that he arrived back home about 2:30 a. m.; that she was waiting for him to return as she was very anxious to know just what had happened to her son and all of the particulars of the charges against him. She further said that because of the physical disability which he had sustained as a result of the car wreck that he was unable to stoop or turn side-ways.

Another son of the defendant, Jimmy Howard, testified that he was working in Lawton at the time of the marriage of his brother to the prosecutrix; that about September 24, 1941, subsequent to the filing of the charges against his father, the prosecutrix sent word for him to come to Walters to see her; that he drove over to Walters and the prosecutrix told him that she would like to settle the case out of court and that she would settle it if the defendant would pay her $100.

This court in a long line of cases has established the rule that in any rape case where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, is contradictory, inconsistent or unreasonable, it must be corroborated to the extent of making it sufficient. Maxwell v. State, 78 Okla. Cr. 328, 148 P. 2d 214; Alcorn v. State, 70 Okla. Cr. 388, 106 P. 2d 838; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553, 554.

In Weston v. State, supra, it is stated:

“The doctrine that one may be convicted on the uncorroborated testimony of the prosecutrix has an exception to the mile that is as well founded as the rule itself, and that is that where her testimony is contradictory, uncertain, improbable or she has been impeached, her testimony should then be corroborated. And this corroboration should he of such dignity as to give it weight with the jury upon the question that the actual crime has been committed. It should not be such slight circumstances as to leave the court and jury to guess or speculate that the crime has been committed and that the defendant is guilty.”

It is only necessary to point out a few of the statements made in the examination of the prosecutrix to show the contradictory and uncertain nature of her testimony. As to' her divorce from her first husband, she testified positively on direct examination that she received a divorce from Ledbetter in January of 1939; then, later, she testified:

“Q. Was it more than six months after the divorce from Gerald Ledbetter that you married Wayman Howard? A. Yes, sir.”

On cross-examination by counsel for defendant, she reiterated that she received her divorce in January of 1939, but after some questioning, she said that it was in January of 1940, as shown by the following.

“Q. Well, when was it? A. It was January in 1940. Q. January, 1940? A. Yes, sir. Q. And when were you and Gerald married? A. January 8, 1939. Q. You lived with him, then, practically a year before yon divorced him? A. That is right. Q. And of that marriage there was one child, was there not? A. That is right. Q. Now, how long had you known Wayman? A. About three months. Q. About three months? Where did you meet him? A. Walters. . . . Q. Now, you say you were divorced at Duncan? A. Tes, sir. Q. In January of 1940? Are you sure it wasn’t January 15, 1941? A. I am positive of that.”

To refute this positive testimony of the prosecutrix, there was introduced in evidence a certified copy of the decree of divorce granted to the prosecutrix from Gerald Ledbetter in the district court of Stephens county, on January 15, 1941, just two days less than four months before her marriage to Wayman Howard. There was also testimony to show that prosecutrix and Wayman Howard had driven through several county seat towns to Wellington, Ran., to be married because they knew that six months liad not expired from the time of her divorce from Led-better, and they thought by marrying in Kansas they would not be violating any law.

The long lapse of time before prosecutrix reported the alleged misconduct of defendant, the fact that the pajamas which were exhibited to the jury and shown to be made of very flimsy material were not torn on the particular occasion, would seem to refute her statement that the defendant had pulled and tugged at her pajamas trying to take them off of her.

Furthermore, it was undisputed that subsequent to the filing of the complaint against defendant, the prosecutrix sent for one of the sons of defendant and offered to get the prosecution dismissed upon payment to her of the sum of $100. The testimony of prosecutrix is full of contradictions and inconsistencies. The above portion relating to her testimony concerning her divorce from her first husband is just a fair sample. Also, the physical condition of the defendant and other physical facts refuted the story told by the prosecutrix.

This is one of those cases where the conviction should not be allowed to stand. It does not reach the plane of honesty and truthfulness which should characterize a prosecution. There was some attempt by the state to corroborate the prosecutrix’ story by testimony of a girl friend at Walters and prosecutrix’ mother that a few days after prosecutrix returned from her marriage to Wayman Howard, they saw marks on her wrists which looked like bruises. But the testimony of these two witnesses, like the testimony of the prosecutrix, was full of contradictions. Each of them admitted that the alleged bruises were not sufficient to cause them to make inquiry of the prosecutrix as to what caused them. The girl friend of prosecutrix testified that she had never seen a bruise before and had never had one, but that the thing which she saw was what she figured a bruise would look like. At the most, the evidence of the state inculpating defendant amounted to no more than strong suspicion.

The judgment of conviction is reversed.

BABEFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    FRED F. MACK v. STATE.
    No. A-10329.
    Dec. 13, 1944.
    (154 P. 2d 103.)

      Paul R. Haunstein, of Enid, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for defendant in error.
   BAREFOOT, J.

Defendant, Fred F. Mack, was charged in the county court of Garfield county with the crime of driving a motor vehicle upon a public highway in Garfield county while under the influence of intoxicating liquor, was tried, convicted, and sentenced by the court to serve a term of six months in the county jail; and has appealed.

For a reversal of this case, it is contended:

“1. That the evidence was wholly insufficient to convict the defendant of the crime charged.
“2. That if said evidence was sufficient to warrant the jury in rendering a verdict of guilty then the judgment of the court ivas excessive and should be by this court modified.”

The evidence reveals that the defendant was a resident of Garfield county, living near Waukomis. That he had been convicted upon numerous accasions of the same crime with which he stood charged in this case, and that his driver's license had been suspended twice.

The charge in the present case was the outgrowth of a collision of defendant’s automobile and one driven by Gilbert McCormick, of Enid, on the viaduct across the Rock Island railroad on Highway No. 81, about one and a quarter miles south of Enid, on the night of February 28, 1942. The prosecuting witness, Gilbert McCormick, and his wife and three small children and Al Hale, a cousin, had started from Enid to go to Homestead, in Blaine county. When they reached Hennessey, it was snowing very hard, and they decided to abandon their trip and return to their home in Enid. As they were crossing the overpass of the Rock Island Railway, one and a quarter miles south of Enid, Mr. McCormick, who was driving, saw an automobile approaching from the north, going south. He observed this car was to the east of the center of the highway. He immediately turned his car to the right and to the guard rail of the overpass. The other car, which belonged to the defendant, sideswiped the McCormick car, and damaged it to the extent of about $35. Both cars stopped, the rear of the McCormick car against the rail and the car headed northwest, and the car of the defendant just back of the McCormick car, and headed southeast. Mr. McCormick got out of his car and went to the car of defendant. Defendant was attempting to back his car out, but by reason of the damage caused by the collision, was unable to do so. Prior to going to the defendant’s car, McCormick had sent his 14-year-old son to telephone for the Highway Patrol. McCormick saw the defendant sitting under the wheel of the car, had a conversation with him concerning the collision, and positively identified him, describing the clothing and hat he wore. Two women were with the defendant.

Mr. McCormick after talking to the defendant, left the scene and started to get the Highway Patrol, leaving Ms car and the other occupants at the scene. He met the Highway Patrolmen, but went on in to the Highway office, and rode back to the scene with a wrecking truck.

The patrol officers both testified to the fact that defendant was drunk. One of the women who was riding with him testified, and she admitted that the defendant was drunk. The defendant himself admitted that he was not in condition to drive the car. There can be no doubt as to the defendant being under the influence of intoxicating liquor.

The defense was that the defendant was not driving the car at the time of the collision, but that it was being driven by Gene Nivison, one of the women accompanying the defendant in the car, and both she and the defendant so testified.

The officers testified that Gene Nivison was under the wheel when they arrived about 20 or 30 minutes after the collision occurred and after the witness McCormick had left the scene. It was the theory of the state that the defendant was driving, and that the defense was an attempt to shield the defendant, who had been previously convicted three times of drunk driving, and whose driver’s license had been revoked upon two prior occasions. Gene Nivison did not have a driver’s license.

It is unnecessary to further discuss the evidence in this case. It was clearly a disputed question of fact, Avhich has been passed upon by the jury. The identification of defendant as the driver of the car by the witness McCormick is direct and positive. The fact that defendant was not only under the influence of intoxicating liquor, but that he was so drunk his companions would not risk his driving the automobile and were taking him home for that reason, was admitted. He testified himself to visiting numerous places and drinking beer in large quantities just prior to the collision.

Where there is a conflict in the evidence, and the evidence is sufficient to sustain the judgment and sentence, it will not be reversed on appeal.

The record in this case does not justify a modification of this judgment and sentence. The record of the defendant does not show a disposition on his part to obey the law, and the punishment assessed does not appear to be the result of passion or prejudice.

For the reasons stated, the judgment and sentence of the county court of Garfield county is affirmed.

-JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    In re W. J. (Bill) EDWARDS.
    No. A-10532.
    Dec. 13, 1944.
    (154 P. 2d 105.)

      Mathers & Mathers, of Oklahoma City, and George B. Forrester, of Sulphur, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by W. J. “Bill” Edwards to secure his release from confinement in the State Penitentiary.

This same petitioner has heretofore in a similar proceeding sought his release, which petition was denied. 78 Okla. Cr. 213, 146 P. 2d 311.

It is the rule of this court that where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds or facts existing when the first application was made, whether then presented or not. Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430; Ex parte Davis, 74 Okla. Cr. 75, 123 P. 2d 300; Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88; Denton v. Hunt, 79 Okla. Cr. 166, 152 P. 2d 698.

This petition is identical with the former petition filed by this petitioner, except that it is alleged in this petition that the letter purported to have been written by one E. M. Roach, which allegedly was the basis for the revocation of the parole of petitioner, was a false and forged letter. After the rule to show cause was issued, the testimony of Eoach shows that the letter in the files of the Pardon and Parole Office allegedly written by said Eoach, in which it was represented that the petitioner was violating certain laws of the State of Arizona, was not written by him, and that he did not know of any law violations being committed by the said petitioner, W. J. Edwards.

In the former opinion of this court concerning this petitioner, it was held that the Governor of the state has the power to annex to a pardon or parole any condition, precedent or subsequent, provided it be not illegal, immoral, or- impossible to be performed. As was pointed out in said opinion, the petitioner accepted the parole from the Governor with one of the conditions being that the Governor might revoke the parole for any cause by him deemed sufficient. For that reason, this court will not say that the Chief Executive revoked the parole of the petitioner because of the Eoach letter which admittedly is a forgery, and it is not within the province of this court to inquire as to what cause the Governor deemed sufficient to revoke the prisoner’s parole.

The petitioner through his counsel argues that the parole officials have become angry at him because of his insistence at being released on parole, and because of his allegations that he was purely a political prisoner, and because of his insistence that he had been reincarcerated solely because of refusal to falsely swear that he had paid an investigator of the former Governor, who issued parole, certain money to secure clemency for him, and for that reason will not consider any application he will file for clemency, and therefore prays this court to grant him relief.

We gave the petitioner and counsel for respondent considerable latitude in presenting this question, and, from such hearing, it became obvious that certain demands were made upon petitioner to testify in the trial of a former investigator for alleged bribery in connection with the issuance of clemency during the regime of the former Governor.

There was no proof, and not even any inference, that the acting Governor who issued the revocation knew of these demands being made upon the petitioner.

But irrespective of what might have been the motives which prompted the parties who sought the revocation of the parole of the petitioner, this court is without power to grant the relief prayed.

If the facts are as alleged and contended by the petitioner, if the same is presented to the Pardon and Parole Board or directly to the acting Governor who issued the revocation to seek his rescission of the order revoking the parole, we have full confidence that petitioner’s cause will be handled on an unprejudiced basis.

The writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    In re WALTER CAVERS.
    No. A-10575.
    Dec. 13, 1944.
    (154 P. 2d 106.)

      Walter Cavers, pro se.
    Eanclell S. Cobb, Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by Walter Cavers, an inmate of tiie Oklahoma State Penitentiary.

The verified petition alleges facts surrounding the conviction of the defendant on November 12, 1931, of the crime of robbery, in the district court of Oklahoma county and his sentence to serve a term of 35 years imprisonment in the State Penitentiary.

After reciting many facts concerning the arrest and incarceration of the petitioner and the procedure followed in procuring his plea of guilty, the petition prays that this court commute the sentence of defendant from 35 years to 28 years’ imprisonment in the State Penitentiary. The Attorney General has filed a demurrer to the petition.

Under the provision of 22 O. S. 1941 § 1066, this court, in any case which is appealed, may reverse, affirm, or modify the judgment appealed from, or may order a new trial. If this had been an appeal instead of an original proceeding in habeas corpus, and the facts concerning the nature of the crime and the youthfulness of petitioner were as alleged in his petition, the court might have been inclined under the above statute to modify the judgment in the furtherance of justice.

After the conviction has become final, and no appeal has been lodged in this court, the Criminal Court of Appeals no longer has authority to modify any sentence assessed against an accused.

The sole power to issue commutations after conviction is'vested in the Governor under the provision of article 6, sec. 10, Oklahoma Constitution.

Since the Criminal Court of Appeals is without authority to grant the relief sought in the petition, it follows that the petition for writ of habeas corpus should be and the same is hereby denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ERVIN WEAVER v. STATE.
    No. A-10338.
    Dec. 20, 1944.
    (154 P. 2d 587.)
    Tyree & Busby, of Lawton, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Paul Pugh, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Ervin Weaver, was charged in the county court of Comanche county with the unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve 90 days in the county jail and pay a fine of |200 and costs.

This is a companion case to Weaver v. State, 79 Okla. Cr. 267, 154 P. 2d 585, this day decided, wherein this court affirmed the conviction of the defendant on a charge of unlawful transportation of intoxicating liquor. The instant case and Weaver v. State, supra, grew out of the search of certain premises and the seizure of certain whisky thrown from defendant’s automobile on the night of January 3, 1942.

The defendant, prior to the commencement of the trial, filed a motion to suppress the evidence. Among the grounds alleged in the motion was the contention that the search warrant did.not properly describe the premises of the accused and was a variance from the description set forth in the affidavit upon which the search warrant was procured.

The description in the affidavit for the search warrant is as follows:

“A certain one story frame house painted white, with unpainted shingle roof, the same being the first house on the north side of the street, one block east of the Military Highway and facing setting south with a porch on front.

The search warrant issued pursuant to the affidavit described the premises to be searched as follows:

“A certain one story frame house, painted white, with unpainted shingle roof, the same being the first house on the north side of the street, WEST OF THE MILITARY HIGHWAY AND SETTING ABOUT THREE BLOCKS NORTH OF U. S. HIGHWAY 62, ON 21st STREET, and setting facing south with a porch on front. . . .”

The capitalized portion of the description quoted in the search warrant is a variance from the description set forth in the affidavit.

In the brief of the Attorney General the following statement appears:

“This case hinges on whether or not the search warrant was valid. It is conceded that if it was not, the case should be reversed, as the judgment and conviction herein is based on evidence obtained through the execution of the warrant.”.

The state contends that there were sufficient corresponding descriptive averments in the affidavit and in the search warrant to show that they described one and the same place and should not have been confusing to any officer trying to find defendant’s premises. With this contention we do not agree. The affidavit describes a house one block east of the Military Highway, while the search warrant describes a house west of the Military Highway.

37 O. S. 1941 § 84 provides that the judge before whom the affidavit is filed shall issue a warrant “directed to any peace officer, in the county, . . . commanding him to search the premises described and designated in such complaint.”

In Lynch v. State, 68 Okla. Cr. 303, 98 P. 2d 625, it is stated:

“A complaint for a search warrant must particularly describe the place to be searched for intoxicating liquor and the search warrant must authorize and command the search of the premises described and designated in such complaint. Section 2635, O. S. 1931, 37 Okla. St. Ann. §! 84.”

In Smith v. State, 75 Okla. Cr. 55, 128 P. 2d 250, it is stated:

“Where a defendant charged with unlawful possession of intoxicating liquor, and the evidence of the defendant’s possession thereof, has been obtained by search of his premises under a void search warrant in violation of Bill of Rights, Const., Art. 2, Sec. 30, guaranteeing the security of the people in their right to be exempt in their persons, houses, papers, and effects from unreasonable search and seizure, the evidence so obtained is inadmissible against him.”

it follows by reason of the foregoing that the trial court erred in overruling the motion to suppress the evidence.

The judgment of the county court of Comanche county is accordingly reversed, with instructions to discharge the defendant.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ERVIN WEAVER v. STATE.
    No. A-10337.
    Dec. 20, 1944.
    (154 P. 2d 585.)

      Tyree & Busby, of Lawton, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Paul Pugh, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Ervin Weaver, was charged in the county court of Comanche county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 90 days in the county jail, and pay a fine of $200 and costs, and has appealed.

This is a companion case to Weaver v. State, 79 Okla. Cr. 264, 154 P. 2d 587, this day decided. By agreement, the cases were consolidated for the purpose of briefing and argument.

Certain officers of Comanche county procured a search warrant for certain premises on the outskirts of Lawton, and, also, for an automobile owned and operated by the accused. Armed with these two1 search warrants, officers went to the premises of the accused on January 3, 1942. After the officers had arrived, and before entering the premises to make a search, they saw the defendant drive out of his garage and start off in his automobile without having his lights turned on. It was after dark. The officers turned on their lights and blew their police siren. The defendant speeded up and turned onto what is known as the Military Plighway. The officers started after the defendant and during the chase drove approximately 85 miles an hour for about 3 miles before the defendant stopped. During the chase, the officers testified that they saw tbe defendant throw something from the right-hand side of his car. After the defendant had been placed under arrest, the officers returned to the place where they had seen him throw the package from the car and found three full pints of whisky and one pint bottle that had been broken.

The testimony showed that ice and snow covered the ground and that the bottles had struck the ground about 10 or 12 feet from the pavement and slid into a bar ditch. After arresting the defendant, the officers returned to the house and made a search and secured over 300 pints of whisky. The whisky seized in the search of the house is involved in Weaver v. State, herein above mentioned.

The defendant argues that the search of the premises was unlawful by reason of a void search warrant and that the officers accordingly had no right to make a search of defendant’s automobile. This argument is fallacious. The search warrant which it is alleged is void on account of the insufficient description of the premises affected only the search of the premises and did not affect the validity of the seizure of the whisky thrown from defendant’s car during the chase by the officers. It is undisputed that the officers had a search warrant for defendant’s automobile. Not only this, but the defendant violated the law by driving his automobile in an unlawful manner on a public highway, which authorized the officers to pursue him and make a lawful arrest. Being engaged in a lawful pursuit of defendant at the time the whisky was thrown from the car, the offense, therefore, was committed in the presence of the officers, and even though they had not been armed with a search warrant, the introduction of the liquor which was found at the place where it was thrown by the defendant was proper. Barnett v. State, 71 Okla. Cr. 118, 109 P. 2d 243; Overturf v. State, 69 Okla. Cr. 303, 102 P. 2d 623; Harrison v. State, 77 Okla. Cr. 154, 140 P. 2d 247; Sims v. State, 73 Okla. Cr. 321, 121 P. 2d 317.

The defendant further insists that the evidence ivas wholly circumstantial and not sufficient to sustain a conviction. It is true that the evidence was circumstantial, but the officers who were just a few feet behind the defendant testified that they saw him throw the package from the car. That the wrapping around the package came loose and fluttered in the air and that they saw one object that shined as it went out of the package. After the defendant was arrested, they returned to the identical spot where the package was thrown and found the liquor. The circumstances were sufficient to connect the defendant with the transportation of the liquor.

The defendant did not testify nor did he introduce any evidence in his behalf.

The judgment and sentence of the county court of Comanche county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAEEPOOT, J.

text:
    CARL COURTRIGHT v. STATE.
    No. A-10339.
    Dec. 20, 1944.
    (154 P. 2d 588.)

      Leon J. York, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., Jess L. Pullen, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Stillwater, for defendant in error.
   BAEEPOOT, J.

Defendant, Carl Courtright, was charged in the district court of Payne county with the crime of larceny of domestic animals, to wit: “one 5-year old red cow; one 3-year old red roan heifer; one 2-year old dark yellow heifer; one 2-year old black and white spotted heifer; one l^-year old red and white heifer; one 1%-year old light red heifer; one red yearling heifer, one short red yearling heifer; and one yearling heifer red with brindle stripes.” He was tried, convicted, and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

Defendant relies upon two propositions for a reversal of this case:

First: “The evidence is insufficient to sustain the verdict of the jury:
Second: “Admission of incompetent evidence over tbe objection of the defendant.”

The defendant was charged with the larceny of the above-described cattle from the pasture of Gilbert Dry, the owner, eleven miles west and four miles south of Stillwater, in Payne county, on the night of Wednesday, December 31, 1941. The evidence is almost wholly circumstantial, and that is the basis of defendant’s contention that it is insufficient, under the law, to sustain the verdict and judgment.

For a proper consideration of the propositions, it is necessary to give a short statement of the evidence, as revealed by the record.

The evidence discloses that Gilbert Dry was the owner of the cattle involved; that his son fed them on December 31, 1941, about 4 o’clock in the afternoon; that he returned to the pasture on January 2, 1942, for the purpose of feeding them, and was unable to locate them; that the sheriff of Osage county was notified; that the sheriff and a deputy went to the Dry farm and made an investigation; that they found where a truck had been backed up to the fence and the cattle loaded; that they found the tracks of the truck, and also human tracks at the place where the cattle had been loaded; that these officers and others returned to the scene the next morning and plaster of paris casts were made of the tracks made by the truck, and also of the human tracks. The truck used in transporting the cattle was a six-Avheel truck, four wheels on the back and two on the front. Defendant owned just such a truck, which was found parked in front of his home three miles south and three-fourths of a mile west of Barnsdall, in Osage county, on January 10, 1942, at which time he was arrested.

According to the officers, the positions of the wheels on the truck had been changed, and the wheels were not in the same positions on the truck when it was found as they were at the time the cattle were loaded, - and the plaster of paris casts made. Some hair similar to that of the cattle above described was found in the truck; also droppings which, according to the witnesses, was about a week or ten days old. Defendant first stated to the officers that the truck had only been used for hauling hay, but when confronted with the above facts, he stated that he had loaded one cow in the truck on December 23, 1941, for the purpose of taking her to town for sale; that she had remained in the truck over night and he had released her the next morning, when he decided not to sell her.

The cattle were found by W. B. Hampton on January 4th or 5th, 1942, in his pasture seven miles southwest of Bartlesville, in Osage county. Mr. Hampton at the time had a broken leg, and he immediately notified his neighbors that the cattle were in the pasture, and asked one of them to notify the sheriff of Osage county. This the neighbor failed to do until about March 27, 1943, and the cattle were recovered by Mr. Dry the latter part of March. About the time he discovered the cattle in his pasture, Mr. Hampton observed the tracks of a dual-wheel truck, where the same had been driven into his pasture and turned around, and presumably where the cattle were unloaded.

The defendant was never at any time seen with the cattle in his possession. He lived in Osage county, and about 17 or 20 miles from the home of W. B. Hampton, where the cattle were found.

The evidence relied upon by the state for the conviction of defendant revolved around the tracks left by the truck where the cattle were loaded at the Dry farm; the truck found at defendant’s borne and owned by Mm, and other circumstances which will be hereafter related; and certain statements made by the defendant after his arrest.

The uncontradicted testimony was that the defendant left Barnsdall about 10 o’clock on the morning of December 30, 1941, and went to Perry, arriving there about sundown. Perry is in Noble county and a distance of about 12 miles from where the cattle'were stolen, in Payne county. That the defendant passed within close proximity to the Dry pasture on that date. That he slept in Ms truck that night at the McKee barn, in Perry. That he left his truck there the next morning, and secured one Walt McKee to take him to Oklahoma City in his automobile. His purpose, in going to Oklahoma City was to see a Mrs. Montgomery with reference to the payment of a mortgage on his farm.

Defendant testified that he returned to Perry on December 31st, and was around the city until 10:30 or 11 o’clock that night, then got his truck and drove to a side street, and slept there until the next morning, and then returned to his home in Osage county. He denied having been to the Dry farm, and denied stealing the cattle. He was corroborated by the witness Walt McKee as to his trip to Oklahoma City, his return to Perry, and of his leaving him about 10:30 or 11 o’clock the night of December 31st, on the streets of Perry. He was also corroborated by Mrs. Kenneth Page, who had a restaurant at Cleveland, Olda., as to his coming by her place of business on January 1, 1942, about 9:30 in the morning, and she testified that his truck was empty at that time.

There was no evidence of anyone seeing the defendant in Perry after he left the witness McKee about 11 o’clock on the night of December 31st, or of anyone seeing him in the city of Perry the next morning.

The state introduced a number of witnesses who testified with reference to the tracks made by the truck into which the cattle were loaded at the Dry farm, and the tires on the truck of defendant when be was arrested. Among these witnesses were several officers, and disinterested citizens. They testified after an examination of the truck and the tires, and the plaster of paris casts that were made.

Joe Bradley, undersheriff of Payne county, testified:

“Q. State your name. A. Joe Bradley. Q. What is your occupation? A. Undersheriff of Payne county. Q. On the 2nd day of January, 1942, did you receive a call to go out west of Stillwater? A. Yes, sir. Q. Where did you go? A. 11 miles west and 3 or 4 miles south. Q. Who did you talk to and what did you do when you got out there? A. We talked to Mr. Dry and Gilbert Williams and Mr. Dry’s wife. Q. What did you find? A. We found some truck tracks. Q. Did you find that some cattle had been stolen from Mr. Dry? A. Yes, sir. Q. Did you find out where the cattle had been pastured, A. Yes, sir. Q. Did you go over there? A. Yes, sir. Q. Did you make an investigation of those cattle, where the cattle were? A. Yes, sir. Q. What did you find from your investigation? A. We found where the truck had backed up to a bank and loaded some cattle. Q. On what side of the pasture was it? A. On the north side. Q. And the truck had backed into the north bank? A. Yes, sir. Q. Did you see the truck tire tracks there against the bank? A. Yes, sir. Q. Did it show what kind of tires, the number of tires on the truck? A. Yes, sir, it was a dual wheel truck and had six tires on it. Q. Four behind and two in front? A. Yes, sir. Q. Gan you tell from your own knowledge what kind of weather we were having on the 31st day of December, 1941? A. It commenced drizzling rain in the evening and turned cold in the night. Q. Do you know how cold it turned? A. It was freezing along in the night. Q. It froze sometime during the night? A. Yes, sir. Q. Did you check the imprints left there by this truck against the bank? A. Yes, sir. Q. Were there any peculiar markings about these imprints that were left there in the road? A. There was four of the tires that was smooth and there was two had pretty good treads on them. Q. The two tires that had good tread, where were they located on the truck as shown by the imprints in the road? A. One of them was on the left hand side of the dual wheel, and the other on the right, both of them was on the inside. Q. And the other four were smooth treads? A. Yes, sir. Q. Were you able to tell from the imprints there the approximate size of the truck, as to the tonnage weight? A. Just guessed at it, yes, sir, it Avas something like a ton — ■ By Mr. York: Object to any guess Avork. By the Court: Overruled. By Mr. York: Exceptions. Q. What Avas your estimate? A. Something like a ton and a half or two ton truck. Q„ Bid you check any footprints in the pasture? A. Yes, sir. Q. Bid you find the imprints that night or the next morning? A. The next morning. Q. What kind of imprints Avere you able to find in the pasture? A. We found a shoe with a sole on it that had a rim around it. And it had six crosses that run across there, the first small and the next longer and the next longer, and down below that there Avas three more the same shape. Q. Were you able to tell from this imprint as to the type of sole that made that imprint? A. It looked like a rubber looking sole. Q. Composition? A. Yes, sir. Q. Bid you make any imprints of plaster of paris of any of the tire tracks out there that particular evening? A. I didn’t. Lloyd Burris did. Q. Was that done the next day? A. It was done the next day, after we were called out there that night. Q. Bid you make a plaster of paris mold of the shoe? A. Yes, sir, I did. Q. You did that yourself? A. Yes, sir. Q. You did that yourself. Were you ever able to locate a truck by your investigation? ' A. Yes, sir. Q. Whose tires were identical to the imprints made at the scene of this taking of the cattle? (Objection by defendant overruled) A. Yes, sir, I did. Q. Where did you locate that? A. It Avas parked in front of Mr. Courtright’s home. Q. Where was that? A. It Avas about three miles south and three quarters west of Barnsdall. Q. In what county was that? A. Osage. Q. I hand you what has been identified as state’s exhibit ‘A’ which is in two pieces and aslc you to tell me what that is? A. That is a print I took of the shoe track out there where the cattle was taken and we got that broke up, too thin and it broke. Q. That is the original imprint you made out there? A. Yes, sir. Q. Does this imprint, that cast show the wedge marks that you have reference to in your testimony? A. Yes, sir, it shows three of them. It doesn’t show them all, but it shows three of them. Q. You made this plaster of paris mold yourself? A. Yes, sir. Q. Of the tracks found in the pasture? A. Yes, sir. Q. Gilbert Dry’s pasture west of Stillwater? A. Yes, sir. (State’s exhibit A’ is admitted in evidence). Q. Did you make a plaster of paris mold of the heel? A. Yes, sir. It was all together until they broke apart. Q. I hand you state’s exhibit ‘B’ and tell me what that is. A. That is a print of the heel of the shoe I taken. Q. That imprint was also taken in Gilbert Dry’s pasture west of Stillwater? A. Yes, sir. Q. And it is the same imprint that is represented by the other two parts, being the sole part? A. Yes, sir. (State’s exhibit ‘B’ is admitted over objection of defendant.) Q. When you went to the defendant’s home in Osage county, did you take anyone with you? A. Yes, sir. Q. Who did you take? A. I taken A. W. Murray, Charlie Frank and Charlie Morris. Q. Who are those gentlemen? A. A. W. Murray is a Texas Banger that works in Osage county, and Charlie Frank is a deputy sheriff and Charlie Morris is too. Q. Deputy sheriffs of Osage county? A. Yes, sir. Q. Did you tell them what you were up there for? A. Yes, sir. Q. And what you were looking for? A. Yes, sir. Q. Did you tell them, those three men, and describe to them the imprints made by the tires out here on Gilbert Dry’s farm and show them the plaster of Paris molds made out there? A. Yes, sir. Q. What did you tell them in reference to where the tires were situated, which tire was on which wheel? (Objection sustained.) Q. You did tell them, did you? A. Yes, sir. Q. Did you go with these officers then, to Mr. Courtright’s farm? A. Yes, sir. Q. Tell the court and jury how are you able to identify that truck yon saw in Mr. Courtright’s yard. (Objection overruled.) A. I had the plaster of Paris prints, two of them, and then I took this plaster of Paris print and put it by the side of the tires and it corresponded with the track we had— (Objection overruled) There was four tires on those tracks that were smooth and two of them that had good treads and the. ones we had taken the plaster of paris prints of. Q. The two tires that had the good prints on the truck at Barnsdall, were they identical to the imprints made by the plaster of paris molds you had? (Objection overruled.) A. Yes, sir. Q. Had there been any changes that you were able to find in relation to the tires on the truck that day there at Barnsdall and the way they were then — that the imprints showed at Stillwater? (Objection overruled.) A. Yes, sir, there had been. (Objection overruled.) A. A tire on the inside dual wheel— Q. Left or right? A. The right side, it had been taken from there and put on the front on the left side of the truck. . . . Q. Had any other change been made? (Objection overruled.) A. Yes, sir. Q. What was that? (Objection overruled.) A. One of the smooth tires, the one on the front at the time it made the print out here, had been moved to the back. Q. From which front? A. The left front wheel. Q. Moved where? A. On the back rear. Q. The right rear or left rear? A. Right rear. Q. The tire that made the good imprint on the right rear out here at Gilbert Dry’s place, do you know what kind of a tire that was? A. No, sir, I didn’t pay much attention. I didn’t look about tires, all I was looking for was the tread. Q. Was Mr. Courtright there when you got there? A. Yes, sir, he was in the house. .Q. Did he come out to see you? A. Charlie Frank went in the house and got him. Q. How long were you there before Mr. Courtright came out? A. I guess about ten minutes. Q. What were you doing in the meantime? A. Checking the truck. Q. You checked the truck for about ten minutes and Mr. Courtright never come out of the house? (Objection overruled.) A. Yes, sir, that’s right. Q. Did you see Mr. Courtright before Mr. Frank brought him out? A. No, sir. Q. Did you have any conversation with him at that time? ... A. Yes, sir, I did. Q. What was that conversation? A. I asked him how long it had been since lie hauled any cattle in that truck. Q. What was his answer? A. He said it had been three or four months since there had been any cattle hanled in it, and then he hauled some cattle íor a neighbor. Q. Did he tell you what he had been doing with the truck in the meantime? A. Hauling hay. Q. Did you examine the truck up there? A. Yes, sir. Q. Was there any cattle hair in that truck? A. Yes, sir, there was. Q. What kind was it? A. Red and white. Q. Any other kind? A. Well, roan, the roan and white would be about the same. Q. In that truck body, was there any cattle manure in there? A. Yes, sir, there was. Q. Can you testify about how many distinct parts there were? A. It looked like several head of cattle had been in there. Q. Why do you say that? A. From the signs in the truck. Q. Were you able to tell the approximate age of the manure? A. I guessed it to be about eight or ten days old, the way it looked. Q. What was the date you went up there? A. On the 10th day of January. Q. That is the date you are talking about now? A. Yes, sir. Q. And it looked at that time to be eight or nine days old? A. Yes, sir. Q. I will ask you was there anything unusual about the appearance of the right rear wheel, inside rear Avheel, which had been moved up to the left front? A. Yes, sir. (Objection to form of question sustained.) Q. What was the appearance of the left front wheel at the time you saw it at Barnsdall? A. Had mud rubbed on it so it wouldn’t show it had been moved. (Objection and motion that answer be stricken sustained.) Q. How do you know the mud had been rubbed on there? A. It looked like someone had took mud in their hand and rubbed it on the wheel. Q. On what part of the wheel was it? A. Where it had set against another wheel, the steel part of it. If they rub up against something, it would show it had been used. Q. You say there was mud rubbed on there? A. Yes, sir. Q. Any finger prints? A. No, sir, just like you would take your hand and rub it on. Q. Did you look at the right front wheel. A. Yes, sir. Q. Was it in the same condition? A. No, sir, it was not. Q. What condition was it in? A. It looked like the car had been drove in the mud, it was spattered on there, and there is a difference where it had been throwed on there and where it had been rubbed on. Q. Did you bring the defendant back to Stillwater on the 10th day of January? A. Yes, sir, I did. Q. Did yon have any conversation with the defendant on the way back that night? A. Yes, sir. Q. From Barnsdall? A. Yes, sir. Q. What was that? A. He said he had loaded a cow in the truck. I asked him how come that manure in the truck and he said he had loaded a cow in the truck and was going to haul her off and put her in there one night and she stayed in there all night and it was bad the next day and he turned her out and didn't take her. Q. Did you go back to Barnsdall at a later date? A. Yes, sir. Q. When was that? A. The next day, the 11th. Q. What did you do when you got back up there? A. We went back and brought the truck down here. Q. Did you find any shoes up there? A. Yes, sir. Q. Were those shoes you found — did they have a sole that would make a mark identical to the plaster of Paris mold you found here in the field? (Objection sustained.) Q. You say you found a pair of shoes? A. Yes, sir. Q. Will you describe those shoes? A. Those shoes I found was just like the print I seen there in Dry’s pasture. (Objection sustained.) Q. Describe it. A. They were work shoes, looked to be about 10 or 11 size with that sole on them like I seen in the prints out there. Q. Describe the kind of a sole you found on the shoes at Carl Courtright’s home. A. In the center of this shoe it had a ring that run around and it had those three bars here in a space between there and three more down below. Q. Tell the court where and how you got those shoes? A. Carl’s mother had them on that time, and I says, ‘I would like to see the bottom of those shoes’ and she held it up and I says, ‘Mrs. Courtright I Avould like to take those shoes with me if you have another pair to put on’ and she says — ■ (Objection sustained.) A. Well, I told her I would like to take them with me. Q. And you did take them? A. Yes, sir. Q. I hand you state’s exhibit ‘C’ and tell the jury what those are? A. Those are the shoes I got at Mrs. Courtright’s home. Q. Those are the same shoes you found in Mr. Courtright’s home at Barnsdall, Oklahoma? A. Yes, sir. Q. On January 11, 1942? A. Yes, sir. (Exhibit ‘C’ is offered in evidence.) Q. By Mr. York: You had to take them off of Mrs. Courtright? A. No, sir, I didn’t take them off. Q. Yon just told her you wanted them? A. Yes, sir. (Objection on ground that they were not shown to be defendant’s shoes overruled, and exhibit admitted.) Q. Point out to the jury the ridges you spoke of a while ago. A. Those right there. There is one bar here, and here is three, and a space between and three more down there. Q. Bight in there? A. Yes, sir, right there. Q. This plaster of Paris mold, take that and show tiie ridges? A. Bight there is three, right there. Q. Does the ring show on there? A. It doesn’t. It has been broke off. It shows a little on that edge of it right there.”

The testimony of this witness was corroborated by Lloyd Burris, a deputy sheriff, and E. G. Schroeder, the sheriff of Payne county; by W. C. Franks, deputy sheriff of Osage county; A. W. Murray, brand inspector for the Texas-Southwestern Cattle Baisers Association in Osage county; and Charles Morris, deputy sheriff, of Barnsdall, Oída.; and by Bay Henderson, Cliff Williams and Balph Leonard, who all lived near the Dry farm and who examined tiie tracks made by the truck where the cattle were loaded, and examined the tires on defendant’s truck. It is unnecessary to give further details of the testimony of these witnesses. Each of them corroborated- some parts of the testimony of the witness Joe Bradley.

According to' the testimony of the sheriff of Osage county, defendant at first denied that the Avitness McKee took him to Oklahoma City, and later changed his story, and admitted that he did.

The defendant’s mother testified that her son had given her the shoes referred to in the foregoing testimony, and that she had them in her possession on the night of December 31, 1941, and that the defendant did not have them at that time.

We have carefully read the cases cited by the defendant and by the state in support of their respective contentions.

The defendant cites the following Oklahoma cases: De Bose v. State, 18 Okla. Cr. 549, 197 P. 176; Stuart v. State, 35 Okla. Cr. 103, 249 P. 159; Davis v. State, 18 Okla. Cr. 112, 193 P. 745; Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174; Hamilton v. State, 25 Okla. Cr. 233, 219 P. 951; Nash v. State, 8 Okla. Cr. 1, 126 P. 280; Knight v. State, 73 Okla. Cr. 107, 118 P. 2d 255; Cook v. State, 71 Okla. Cr. 65, 108 P. 2d 184; Hicks v. State, 70 Okla. Cr. 284, 106 P. 2d 136; Plumleg v. State, 69 Okla. Cr. 65, 100 P. 2d 299.

The state cites: Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; Webb v. State, 54 Okla. Cr. 150, 16 P. 2d 261; Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832; West v. State, 64 Okla. Cr. 208, 78 P. 2d 724; Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629; McCormick v. State, 64 Okla. Cr. 350, 80 P. 2d 598; Gourley v. State, 49 Okla. Cr. 24, 292 P. 873; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Simpson v. State, 52 Okla. Cr. 311, 4 P. 2d 126.

It is often difficult to prove the guilt of a defendant in cases of this character, except by the use of circumstantial evidence; and it is, therefore, the law that this evidence must be such that every logical inference of guilt clearly appears, and that it must exclude any reasonable hypothesis except the guilt of the accused; yet each of these cases to a great extent depends upon the facts and circumstances of the individual case. West v. State, 64 Okla. Cr. 208, 78 P. 2d 724; Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629; McCormick v. State, 64 Okla. Cr. 350, 80 P. 2d 598; Gourley v. State, 49 Okla. Cr. 24, 292 P. 873; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Tillery v. State, 23 Okla. Cr. 226, 214 P. 198; Simpson v. State, 52 Okla. Cr. 311, 4 P. 2d 126.

It has been the universal holding of this court that a verdict of guilty will not be set aside on the grounds of the insufficiency of the evidence where there is substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the determination of the jury.

In the instant case the testimony was largely circumstantial. There was a conflict between the testimony of the defendant and some of these circumstances. The jury was in a much better position, after hearing and seeing the witnesses, to determine this issue, than is this appellate court. We are not able to say that the evidence here produced was insufficient to sustain the judgment and sentence. The jury had the right to believe the testimony of the defendant and find him not guilty. It also had the right to find that the circumstances surrounding this transaction, the statements of defendant, and the physical facts were such as to convince them of the guilt of the defendant, and we do not find there was error in so finding.

It is next contended that the court admitted incompetent evidence over the objection of the defendant.

In support of this contention, two Oklahoma cases are principally relied upon. The first is that of Stuart v. State, supra. This was a murder case, based upon circumstantial evidence, and was reversed. It was there said [35 Okla. Cr. 103, 249 P. 160]:

“Passing for further consideration the competency and materiality of the evidence, we believe that the evidence introduced was sufficient on the facts to carry the case to the jury and to sustain the verdict.”

A number of errors were assigned in that case, and the case was reversed by reason of the introduction of incompetent and immaterial testimony, and on erroneous instructions given to the jury. One of the witnesses was permitted to testify that, “Certain footprints near the body were made by the same shoe that made tracks near defendant’s residence.” The court said:

“Unless the matter is one calling for expert testimony, it is the province of a witness to state facts, not conclusions. The admission of conclusions, before the witness has shown his qualifications in malting observations or tests, is error.”

The testimony in the instant case cannot be said to come within the category of being conclusions. It was based upon experiments and observations from existing facts. The court in the concluding part of the opinion in the Stuart Case, supra, said:

“In considering the record presented, none of the errors pointed out, standing alone, except possibly the error in admitting the overture to procure false testimony by Dewitt Stuart, would require a reversal. The various errors taken all together are such that we find the defendant did not have that fair trial which the law guarantees.”
“The case is, therefore, reversed and remanded.”

In the case of De Bose v. State, supra, cited by defendant, the defendant was charged with arson and convicted. The case was based wholly upon circumstantial evidence, and was reversed. In the trial of the case, certain evidence was admitted with reference to certain tracks of some person, and the tracks of a horse. The court did not hold that this evidence was incompetent and inadmissible, but the case was reversed by reason of the court’s refusal to admit competent and material evidence, and that all the facts proved did not justify the finding of the defendant guilty, under the law. The facts in the instant case do not so justify.

The above contention is based largely upon the evidence of the witness Joe Bradley, and the testimony of Sheriff Schroeder, and Deputy Lloyd Burris, with reference to an examination and comparison of the tracks found at the place the cattle were stolen, and the tires on the truck of defendant. We have carefully examined this testimony, and are of the opinion that the witnesses were not testifying to conclusions, but to facts from their observations, made at the time of their examination. These witnesses pointed out the peculiarities on the tires of the trucks, and the imprints made at the place where the cattle were loaded and stolen. Rucker v. State, supra; West v. State, supra.

For the reasons above stated, the judgment of the district court of Payne county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    ORVILLE LITTLE v. STATE.
    No. A-10302.
    Jan. 3, 1945.
    (154 P. 2d 772.)

      Sam Y. Colby, oí lVXadill, and Champion & Fischl, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Orville Little, was charged by indictment presented and filed by a grand jury of Carter county, with the crime of rape in the first degree, was tried, convicted of the included offense of assault with intent to commit rape, with the punishment left to the court. The trial court thereupon sentenced the defendant to serve a term of four years imprisonment in the State Penitentiary, and he has appealed.

This is the second appeal involving this case. In a former appeal, we reversed the case for a new trial because of the error of the court in refusing to admit in evidence a written statement made by the prosecutrix. Little v. State, 72 Okla. Cr. 273, 115 P. 2d 268. The facts surrounding this alleged crime are set forth in detail in said opinion and they will not be herein again related. Reference is hereby made to said former opinion for a detailed statement of said alleged crime.

It is first contended that the verdict is not supported by sufficient competent evidence to sustain the conviction. The testimony of the prosecutrix, which was partially corroborated by the owner of the tavern and his employee, especially concerning her physical appearance immediately after the alleged assault, are sufficient to require the court to submit the case to the jury for their consideration. Being sufficient for this purpose, the jury had a right to believe the testimony of the prosecutrix and disbelieve that of the defendant and his witnesses. Some of the statements of the prosecutrix to this court appear highly improbable, but since a jury of disinterested citizens have twice seen the witnesses and heard their testimony and by their verdict have held against the defendant, we do not feel that this court would be justified, under the law, in reversing the case because of the insufficiency of the evidence. The purpose of having a jury trial is to afford twelve men an- opportunity to determine who among the witnesses are telling the truth, and when they have spoken upon a disputed question of fact, this court is bound by their judgment.

It is insisted that error was committed in permitting the jury to separate and go about on the various floors of the courthouse during a five-minute intermission at the commencement of the trial. The record discloses that after the jury had been duly selected and sworn to try the case and the county attorney and counsel for the defendant had each made their opening statement to the jury, that the county attorney asked for a five-minute recess before the state commenced presenting their evidence. During this five-minute recess, the jury was allowed to separate under the usual admonition by the trial court not to talk to anybody about the case nor to talk about the case among themselves or form or express any opinion as to the guilt or innocence of the defendant.

After the court had reconvened, counsel for defendant moved the court to discharge the jury and to declare a mistrial because the jury separated during the intermission. The state contended that counsel for defendant had agreed to the separation of the jury, but counsel for defendant answered by stating that it was a fundamental right of the defendant in a capital case to have the jury remain together under charge of a sworn bailiff, and that they had no power to waive this fundamental right on behalf of the accused.

After tbe motion for mistrial was presented, tbe record discloses tbe following proceedings:

“By the Court: Gentlemen of the Jury, the court has been trying lawsuits now for several years, and I have permitted you to separate, just a while ago, under the admonition that you were not to talk to anybody about this case or allow anybody to talk to you about the case or talk among yourselves about the case, or form or express an opinion as to the guilt or innocence of the defendant in this case, and now an objection has been made to the court permitting you to separate, which calls on the court to ask you this question: Did any of you permit anybody to speak to you about this case or did any of you speak among yourselves about this case, or did any of you speak to anybody else about the case, or did anyone form or express an opinion as to the guilt or innocence of the defendant during the five or seven minutes recess that you just had? Whereupon, the jury nodded its head in a negative manner.) By the Court: Did any of you? (Whereupon, the jurors again nodded in the negative.) By the Court: All right, I will overrule your motion.”

There was no objection made at the time that the jury was allowed to separate, but the question was presented after court reconvened by the presentation of the motion for a mistrial.

The question as to whether it is error to allow the jury to separate during the progress of the trial has been before this court for consideration in many cases. In one of the latest cases, Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531, 536 (a capital case), the subject was fully discussed. In the body of that opinion, it is stated:

“This court has had occasion many times to construe Section 3081, O. S. 1931, 22 Okla. St. Ann. 857. We have held that on proof of a violation of this section by permitting the jury to separate after the case has been finally submitted to them, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant.
“This court has also uniformly held that before the final submission of a case the legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the triaL the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced thereby. Forester v. State, 36 Okla. Cr. 111, 252 P. 861; Womble v. State, 50 Okla. Cr. 108, 296 P. 515; Sanders v. State, 46 Okla. Cr. 298, 287 P. 842; Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185; Smith v. State, 19 Okla. Cr. 14, 197 P. 514; Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331.”

Applying the above rules of law to the instant case, we do not find any attempt by the defendant to show that any of the jurors conversed with anybody or that by reason of their separation the defendant -was materially prejudiced. We can find no error as regards this proposition.

It is next insisted that the county attorney committed error in his cross-examination of the defendant concerning a former conviction on a rape charge in the State of California.

The record discloses that on cross-examination, the county attorney asked the defendant whether he had pleaded guilty to a felony in the State of California, to which the defendant answered in the affirmative. The next question of the county attorney was as follows: “What was it?” To the asking of this question, counsel for defendant objected, stating “they can ask him if he has ever been convicted of a felony, but that is as far as they can go.” After the objection was overruled, the defendant answered “for living with a woman and her daughter.”

The county attorney then proceeded to further cross-examine the defendant by asking if he had not pleaded guilty to statutory rape on a 13-year-old girl. This the defendant denied. The county attorney then further cross-examined the defendant by stating the name of the court and the nature of the sentence which he contended defendant had received for the alleged offense of statutory rape. Then, a certified copy of the record of the conviction in California was shown to defendant. After this record was submitted to the defendant, defendant admitted that he had received said sentence, but explained the circumstances surrounding the California case and his understanding of what transpired at the time he entered his plea of guilty. He specifically denied that he had raped a 13-year-old girl in California.

When a defendant takes the witness stand, the prosecution has the right to cross-examine him with the same latitude as any other witness. Under the statute, he ma3r be interrogated concerning their convictions for crime. 12 O. S. 1941 § 381; Howard v. State, 67 Okla. Cr. 445, 94 P. 2d 947; Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797; Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266.

The scope of the cross-examination of a witness is necessarily largely a matter of discretion with the trial court. Where the prosecution in the cross-examination of the defendant questions the defendant concerning other alleged convictions for crime, the court should not allow the examination to be enlarged to such an extent as to cause the jury to place undue emphasis on the former conviction of the accused, and thus cause them to convict him of the instant charge mainly because of the bad reputation of the accused. In the instant case, the cross-examination concerning the California conyiction was lengthy but was brought about chiefly because of the evasive answers which the defendant gave to the questions of the county attorney. The court should not allow the county attorney to go into detail concerning the crime for which the defendant had been formerly convicted, as that is a collateral matter, not relevant to the crime charged and the conviction may only be inquired into for the purpose of affecting the credibility of the witness. The conviction, the name of the court in which the conviction occurred, the nature of the crime, and the date are all pertinent factors, but the details of the crime involve extraneous matters concerning which the prosecution should not inquire unless counsel for defendant on redirect examination seeks' to explain the circumstances of the alleged crime for which the former conviction was sustained in order to lessen the effect of said crime on the jury in determining the credibility to be given to the witness. Then, under such circumstances, the state might, in the discretion of the trial court, be permitted to go into some details of the crime to show that it was not as pictured by defendant on redirect examination. However, these are matters which are collateral to the issues involved; i. e., the guilt or innocence of defendant of the particular crime charged, and the trial court should be extremely cautious in its limitation of the cross-examination concerning the former convictions. The record discloses that the trial court herein properly instructed the jury that the evidence of the former conviction of the defendant could be considered only as the same might affect the credibility of defendant and could not be considered as any evidence of defendant’s guilt.

It is further contended that the county attorney was guilty of making defamatory and prejudicial statements to the jury in his closing argument. The argument complained of is the statement by the county attorney that any man that would go out and rape a woman is below the level of a dog. Counsel for defendant objected and saved their exceptions to this argument. The trial count thereupon instructed the jury as follows:

“By the Court: Gentlemen of the Jury, you will disregard the remarks of the county attorney about a man that would rape a woman would be lower than a dog. That is just a matter of opinion.”

In the case of Abby v. State, supra [72 Okla. Cr. 208, 114 P. 2d 500], it is stated :

“It is the duty of the county attorney in his opening statement and closing argument to the jury to confine himself to the facts as shown by the evidence. But they have the right to draw their deductions and conclusions, and unless the statements or arguments are such that deprive a defendant of his substantial rights, or are such that would arouse the passion and prejudice of the jury to the extent that they would be swayed from arriving at a just verdict, the judgment and sentence will not be set aside on appeal.”

The question of alleged improper argument of a prosecutor is constantly being brought before this court. There is no fixed rule of law which governs the prosecutor’s conduct in this regard. Under his right of argument, the prosecutor and counsel for defendant each should have a wide range of discussion, illustration, and argumentation. Each of them has the right to discuss fully from their standpoint the evidence and the inferences and deductions which they make from the evidence. It is only when the argument by counsel for the state is so grossly improper and unwarranted upon some material point which may have affected defendant’s rights that a reversal can be based upon improper argument.

We do not think the statement herein under discussion is so grossly improper that it requires a reversal of the case. This is especially true in view of the admonition by the trial court to the jury not to consider said statement.

The next contention of the defendant involves the conduct of the county attorney and his assistant in their examination of the witnesses and also the alleged misconduct of the trial court in asking one of the witnesses certain questions. The record discloses that the county attorney and his assistant each did ask many leading questions of the various witnesses which they placed on the witness stand for the state. Counsel for defendant objected to some of the questions asked by the prosecutor on many occasions and the court sustained his objections and admonished the county attorney and his assistant to refrain from asking leading questions. This conduct of the prosecutor is one of the most serious assignments of error presented in this appeal, and we have carefully considered the same. It does not appear to us that the leading questions which were asked affected the testimony of any of the witnesses and generally they were not leading when it came to the material points involved in the witnesses’ testimony. It is our conclusion that the defendant was not denied a fair and impartial trial by reason of this conduct on the part of the county attorney and his assistant.

The allegation that the trial court improperly interrogated the witness, Mrs. F. L. Rice, is not sustained by the record. The court did ask the witness, Mrs. Rice, a feiv questions at the close of her examination, but they were not of such a nature as to indicate to the jury that the trial judge had an opinion as to the guilt or innocence of the defendant. In the former appeal, this court criticized the trial judge for his repeated interrogation of the witnesses which had a tendency to indicate his opinion as to the guilt of the defendant. However, there is no such conduct repeated in this case. We stated in the former opinion [72 Okla. Cr. 273, 115 P. 2d 270]:

“Except when it appears absolutely necessary to the administration of justice, the trial judge should not interrogate witnesses.”

It is next contended that the trial judge lost control of the conduct of the trial and that the case should be reversed for the reason that the trial judge departed from Carter county and went to his home in Pauls Valley, in Garvin county, while the jury was still together and deliberating upon the case. This question was first raised in the amendment to the motion for new trial presented by the defendant. Upon the hearing of the motion for new trial, counsel for defendant requested the court to make a statement for the record as to whether the court did depart from Carter county and go to Pauls Valley in Garvin county, after the case had been submitted to the jury and while the jury was still deliberating on the case. At which time the court made the following statement:

“By the Court: The court certifies to the record that the cause, State of Oklahoma v. Orville Little, Number 3983, in the District Court of Carter County, Oklahoma, that the case was called for trial and the jury duly empaneled and so forth on Wednesday, November 19th, 1941, and that the trial progressed in a legal and regular manner until the cause was submitted to- the jury. That was about seven or eight o’clock in the evening, or whatever the record, shows, and that the jury deliberated on the cause until about two-thirty, A. M., of the morning of November 20th, 1941, and that about that time, at about that hour in the morning of November 20th, 1941, the court had the bailiff to bring the jury down into open court and, the defendant being present, inquired whether the jury had arrived at a verdict, and upon their stating that they had not, the court required the jury to hand the blank verdicts and instructions to the bailiff and ad< monished the jury not to consider the case any further and to retire in charge of the bailiff for the balance of the night, or morning, and instructed them to return into open court in a body the same morning, that is, November 20, 1943, at 10:00 o’clock a. m., and then swore the bailiff as required by law, and instructed him to keep the jury together in a body and permit them to retire for the balance of the night or morning, and to return them into open court at 10:00 o’clock. The court further certifies that thereafter he drove from Ardmore to Pauls Valley in G-arvin county, Oklahoma, retired, and then later in the morning came back to Ardmore and into open court at about 10:00 o’clock a. m. of said 20th day of November, 1941, when the jury was ushered into the courtroom in a body by the bailiff, and in the presence of the defendant and counsel, were ordered by the court to continue their deliberations. The bailiff was ordered to hand the jury the blank verdicts and the instructions; the bailiff was duly and legally sworn and the jury retired to deliberate upon their verdict.”

In the case of Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773, the duty of the trial judge to remain in the county where the accused is on trial until the jury is discharged was fully considered. Judge Barefoot wrote an elaborate opinion on this question and reviewed all authorities in this state and those from many others on this question. In that case, the trial judge left Johnston county and went to his home in Marietta, in Love county. While he was gone, the jury continued to deliberate upon the case. While the trial judge was in Love county, he had a telephone conversation with the foreman of the jury concern-came to the conclusion, after considering all of the authorieame to the conclusion, after considering all of the authorities bearing upon this question, that it was the absolute duty of the trial judge to be personally present so that he could have control of the case during the trial and during the deliberation of the jury, so that he could respond to any call for the exercise of his judicial authority.

We see a distinction in the facts as quoted in Raab v. State, supra, to those herein involved. Here, the forms of verdict, the instructions, and other .papers introduced as evidence during the trial were withdrawn from the jury and they were directed to cease deliberation upon the case and retire for the night and were further directed to be in court at 10 a. m., to resume their deliberation. It was during this period between the time of the retirement of the jury and 10 a. m., the following morning, that the trial judge drove to his home and slept a few hours and returned to the courtroom and was present when the jury was brought to the courtroom by the bailiff to receive the forms of verdict and other papers for the purpose of further deliberating upon the case. The presence of the judge was not absolutely necessary while the jury was sleeping as authority to deliberate further upon the case had been temporarily withdrawn. The reasoning in the Raab Case and the cases cited therein in support of the rule is not applicable to the instant case because no question could arise calling for the presence of the trial judge while the jury was not considering the case.

The case of Ex parte Mingle, 2 Okla. Cr. 708, 104 P. 68, is more nearly in point than any other Oklahoma case. In that case, the trial judge lived in Canadian county and during the trial, at divers times after the adjournment of court or suspension of the functions of the jury, tlie court would go from Oklahoma City to his home in Canadian county. It was therein held that the presence of the trial judge Avas not essential during the adjournment as the jury was not then functioning and there was no legal reason requiring the presence of the said judge during said period. In the instant case, the trial judge did not lose contact AYith the proceedings and there was no part of the trial in progress during any of his absence, and Ave do not feel that the rule in the Raab Case should be further extended to include such a situation as is herein shoAvn.

We have carefully considered all of the various assignments of error. The jury deliberated a long time, but not such an excessive period as would force one to the conclusion that the trial judge was keeping them together an unnecessarily long time to force a verdict. However, the verdict Avhich Avas returned found the defendant guilty of the included offense of assault with intent to commit rape. The jury evidently did not believe the story of the prosecutrix that she had been forcibly raped. The jury could not agree upon the punishment but left the same to the trial court. Under the law, the punishment could have been a penitentiary sentence or a jail sentence as Ioav as one day or a fine in any sum not exceeding |500. The trial judge gave the defendant almost the maximum. The facts do not justify the imposition of such a sentence. The prosecutrix’ own testimony would not justify the imposition of so harsh a sentence because, under her OAvn admission, she invited a lot of her trouble by her conduct in going with the defendant from Madill to Ardmore. She Avas a married woman and under the record approached the defendant to take her to Ardmore to the dance. Her Avritten statement which she signed in the presence of her husband and uncles, that the whole thing was as much her fault as defendant’s, when considered along with all the other circumstances of the case, has convinced us that the ends of justice require a modification of the judgment imposed from a sentence of four years in the State Penitentiary to a fine of $500 and all costs of this action.

It is therefore ordered that the judgment and sentence of the district court of Carter county be modified from a sentence of four years in the State Penitentiary to a fine of $500 and all costs of this proceeding, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.