text:
    Ex parte R. L. CALMES.
    No. A-4744.
    Opinion Filed July 11, 1923.
    (217 Pac. 893.)
    Habeas corpus by R. L. Calmes to be admitted to bail.
    Writ allowed.
    Bond & Lewis, for petitioner.
    The Attorney General, for the State.
   BESSEY, J.

The petitioner, R. L. Calmes, was charged with the crime of murder in Stephens county, Okla. A preliminary examination was held upon this charge before the county judge of Stephens county, and at that hearing, on the 11th day of June, the- county judge made an order holding the petitioner without bail to the district court of Stephens county, and committed the petitioner to the custody of the sheriff. Later an application for bail was made to the district court of Stephens county, which' application was by that court denied. The application for a writ of habeas corpus is here brought for the purpose of admitting the petitioner to bail.

The evidence on the part of the state indicates; that there was probable cause to believe that the petitioner was guilty of murder as charged, accomplished with deliberation and possible lying in wait. The accused petitioner and his wife testified and were examined and cross-examined at length. Their testimony was to the effect that the homicide was the culmination of previous difficulties and was, or may have been, perpetrated by the petitioner in his own necessary self-defense; that a short time prior to the homicide the deceased had made declarations, directly communicated to the petitioner, that he intended to take the life of the petitioner, and that the petitioner believed and had good cause to believe that the deceased intended to execute these threats made against petitioner at the first opportunity afforded; that for an extended period of time the petitioner had lived in fear of the deceased, who was in the habit of going armed, and that petitioner avoided meeting deceased whenever possible. At the time of the homicide the deceased was armed with a concealed automatic revolver, and petitioner claimed that the deceased made certain gestures indicative of a purpose to shoot the petitioner, to prevent which the petitioner drew his weapon and fired several shots into the body of the deceased, directly resulting in his death. The story of the petitioner tended to show that he was actuated by motives of self-protection, and was not an improbable story if the incidents related and explanation made by him and other witnesses are worthy of credence. Petitioner’s claim that be acted in self-defense was not necessarily inconsistent with some of tbe testimony introduced by the state.

Since the weight and effect of all the evidence will be submitted to a jury, and should be so submitted without an intimation from this court or the trial court as to its probative force, we refrain from expressing our views so far as relates to the weight and credibility of this conflicting evidence. If the testimony at the trial is of the same import and character, the conflict in the testimony must be submitted to the jury, necessarily involving an issue of self-defense, and probably an issue of manslaughter also. In either event the petitioner might be guilty of no capital offense. Under such state of the evidence it would be error for the trial court to refuse to submit to the jury the issue of self-defense. It follows, therefore, that the applicant, as a matter of right, is entitled to be admitted to bail pending further proceedings in the trial court. Since two serious tragedies have already grown out of the trouble and difficulties previously existing between the petitioner and the deceased, and since the feeling of the friends and relatives of the respective parties is intensely bitter, in order to avoid possible future fatalities it might be said that the interests of society in general in that community would be best subserved by denying the petitioner bail. This argument strongly appeals to this court as a matter of expediency, but it is no legal reason upon which the court may base a decision. The Constitution and statutes of this state provide how and when persons accused of crime must be admitted to bail, and these alone must govern. Section 8 of the Bill of Rights is as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

Section 2920, Comp. Stat. 1921, provides that, in criminal cases, where the offense is not punishable by death, the accused may be admitted to bail. Section 2921, Id., provides that, where the punishment may be death, bail shall be granted unless the proof is evident or the presumption great that the offense committed was a capital offense and no other. Under these provisions we think the applicant is entitled to bail, and it is therefore ordered that the petitioner may be released from the custody of the sheriff upon his giving bond, as provided by law, in the amount of $20,000, with sufficient sureties to be approved by the court clerk of Stephens county.

DOYLE, J., concurs.

MATSON, P. J., absent, and not participating.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    P. W. MURRAY v. STATE.
    No. A-4205.
    Opinion Filed July 11, 1923.
    (217 Pac. 891.)
    (Syllabus.)
    1. Larceny — Fifteen Years’ Imprisonment for Larceny of Automobile Excessive by • Five Years. In a prosecution for the theft of an automobile, sentence of 15 years’ imprisonment, held, in the light of the facts disclosed by the record, excessive, and sentence reduced to aj term of 10 years.
    2. Trial — Scope of Argument by Counsel for State. Counsel for the state, in argument to the jury, must confine himself to the evidence in the case, and should not go beyond the limits of legitimate argument and comment thereon.
    3. Appeal and Error — Misconduct of Prosecuting Attorney — Necessity for Prejudice. A conviction will not be reversed on the ground of alleged misconduct of counsel for the state, unless, up- ' on consideration of the whole case, this court can say that the prosecuting attorney was not only guilty of misconduct, but that such conduct might have in some degree influenced the verdict of conviction.
    Appeal from District Court, Washington County; J. R. Charlton, Judge.

      P. W. Murray was convicted of grand larceny, and he appeals.
    Modified and affirmed.
    J. C. Daugherty, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case P. W. Murray was charged with the theft of one four-passenger Cadillac touring ear, the property of one Andrew Tayrien. Upon his trial a verdict of guilty was found and the punishment fixed at imprisonment in the penitentiary for the term of 15 years. To reverse the judgment he has been permitted to prosecute his appeal as a poor person, but there has been no appearance in his behalf on his appeal, and we have been compelled to examine the record for the errors, if any, upon which this appeal is based.

The evidence is very brief. It shows that the Cadillac car in question was taken from Mr. Tayrien’s garage in Bartles-ville some time after midnight, the morning of the 28th day of May, 1921. About 9 o’clock that morning the county investigator of Tulsa county received information that a big touring car was hidden in the hills about six miles northwest of Tulsa, and with three deputy sheriffs he went out there and found the defendant driving this Cadillac car; when the defendant saw the officers he quit the car and ran into the woods, and shortly afterwards the officers found Him up in a tree. He told the officers that his name was J. F. Collins; that the night before he was walking to Bartlesville and was picked up by a man in a Ford, and about two miles out from Bartlesville he saw this car vacant by the side of the road with the lights burning; that the man he came to town with got drunk, and he walked back to where the car was, and found it there with the lights still burning; that he got in the car, and was trying to get to Tulsa with it.

As a witness in Ms own behalf the defendant testified:

“My age is 25 years; I have been a tool dresser in the Oklahoma oil fields for the past five years. Prior to the 28th of May, I was working- for A. R. Thomas in the Wild Horse District of Osage county; I quit May 27th, and went with Mr. Thomas to Tulsa, arriving there the next morning about 8 0 ’clock. I was walking down Second street and saw Joe Brown in a Cadillac car; he called to me, and I got in the car, and we drove around town. I had known Brown a year or more. He asked me if I would do him a favor; I said I would. He said, ‘I want you to drive this ear out to Harry Smith’s place,’ and 1 drove it out. I told Smith a party sent me out there to leave the car; he told me to drive it down behind the bluff. Joe Brown told me it was a stolen car. I said, ‘I may get into trouble.’ He said; ‘If you get into trouble I will get you out, and I will give you $200 to go back and get the car. ’ The story I told the officers was exactly the story Brown told me.”

In addition to the usual assignments of error, that the verdict was contrary to the law and the evidence, and error in overruling the motion for a new trial, it is assigned that the court erred in admitting incompetent evidence and in permitting the county attorney to ask the defendant prejudicial questions on cross-examination, and in allowing the county attorney in his closing argument to the jury to make prejudicial statements of matters outside of the record, and of such character as would likely arouse the passion and prejudice of the jury against the defendant.

During the closing argument to the jury the county attorney made the following statement:

“He came down to my office and said, ‘I will make a deal with you. If you will let me plead' guilty to receiving stolen property I will tell you who stole that car, and I will tell you) where Bynum and G-allantine are. This man who is shielding the stealing of ears and shielding the killing of boys — ’
“Mr. Daugherty: We object to that argument.
‘‘ The Court: Overruled.
“Mr. Daugherty: Except.
“The County Attorney: Gentlemen, when they get up and object to the argument we know it hurts; but those facts ought to prove to your minds that this man is guilty. ’ ’

No specific objection was made to these statements, other than the exception taken, nor was the court asked to instruct the jury to disregard the same.

There is evidence in this ease upon which counsel for the state could properly make the statement objected to, if we except the closing remark, “and shielding the killing of boys.” There was no evidence in the case to warrant this remark. It went beyond the bounds of legitimate argument, but, while the remark was improper, counsel for the defendant did not specifically object to this remark, but contented himself with a general objection to the entire statement. This court holds that a conviction will not be reversed on the ground of alleged misconduct of counsel for the state, unless upon consideration of the whole ease, we can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might have in some degree influenced the verdict against the defendant. Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042. Upon examination of the entire record we are of the opinion that the improper remark does not constitute reversible error. However, we think this improper remark should be considered in connection with the question as to whether the punishment assessed by the jury is excessive.

It is both the spirit and intention of our laws that sentences should be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. In view of the fact that defendant is only 25 years of age, and that this is his first offense, we are inclined to think that the punishment fixed by the verdict of the jury is excessive. In our opinion 10 years’ imprisonment in the penitentiary will be as much protection to society and do him as much good as would 15 years.

The judgment and sentence herein will therefore be modified by reducing the sentence to a term of 10 years, and, as thus modified, the judgment of conviction is affirmed. The clerk will cause the warden of the penitentiary to be notified of this modification by transmitting to him, a copy of this opinion.

BESSEY, J., concurs.

MATSON, P. J., absent and not participating.


text:
    MATT COLLINS v. STATE.
    No. A-4158.
    Opinion Filed July 11, 1923.
    (217 Pac. 896.)
    (Syllabus.)
    1. Judgment and Sentence — Procedure—Judgment for Misdemeanor Pironounoed in Defendant’s Absence. It is the duty of the court, on a conviction or plea of guilty, to appoint a time for pronouncing judgment. If .the- conviction be for a misdemeanor, judgment may be pronounced in the defendant’s absence. Comp. Stats. 1921, §§ 2759, 2761, 2770.
    2. Same — Authority to Postpone Judgment and Sentence Beyond Term. In the ab'senee. of a statute to the contrary, judgment need not necessarily be pronounced at the same term of court at which the verdict or plea of guilty was had, and if the court’s purpose in postponing judgment and sentence is incident to the administration of justice within its conceded powers, and its orders postponing judgment and sentence are unconditional and to definite periods, the jurisdiction of the court to pronounce! judgment! and sentence at a term after the trial term is not affected.
    3. Same — No Authority to Indefinitely Suspend Pronouncing Judgment and Sentence. While the court may delay pronouncing-judgment for the purpose of hearing and determining motions for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely suspend pronouncing judgment and sentence.
    4. Same — Court Without Jurisdiction to Pronounce Sentence by Reason of Lapse of Time. Appellant was found guilty in the superior court, January 18, 1917, the court appointed a time for pronouncing judgment and permitted him to stand on his bond. He moved for a new trial, and on the day appointed the ease was passed for judgment until January 25, 1917; that day the court ordered proceedings stayed until such time as the defendant should be out of the custody of the IT. S. Marshal. March, 17, 1917, a similar order was entered. No further steps being taken during the existence of the superior court, which was' abolished by act effective March 24, 1921, September 10, 1921, the county court as the successor of the superior court rendered judgment on the verdict.
    Held, that, in view of the length of time, elapsing between the verdict and sentence, nearly five years, and the failure of the trial court to enter judgment at the time appointed or at the succeeding term, and as no definite time was fixed within which sentence would be pronounced in the order of the trial court entered March 17, 1917, the trial court lost jurisdiction to pronounce judgment. Therefore the county court, as the successor of the trial court, was without jurisdiction to pronounce judgment and sentence.
    Appeal from Comity Court, Muskogee County; Enloe Y. Yernor, Judge.
    Matt Collins was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed, and defendant discharged.
    P. A. Gavin, for appellant.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of the county court of Muskogee county, rendered on the verdict of a jury returned upon the trial of appellant in the superior court of Muskogee county, finding him guilty of having in his possession, intoxicating liqnor with, intent to violate provisions' of the prohibitory liqnor law.

The information in this case was filed in the superior court of Muskogee county on the 15th day of September, 1916; an amended information was filed in said court on the 13th day of January, 1917. Upon the trial on the 18th day of January, 1917, the cause being submitted to a jury composed of twelve jurors, the jury by its verdict, signed by nine of its members, found appellant guilty, but they were unable to agree upon the penalty. Thereupon the court fixed January 22d as the time for sentence, and permitted defendant to stand on his bond until 9 o ’clock, January 22,1917, and ordered defendant to appear for sentence at said time. On said day the cause was passed for sentence until January 25, 1917. Defendant’s motion for a new trial was duly filed.

The record recites:

“Thereafter on the 27th day of January, 1917, it appearing to the court that the defendant, Matt Collins, has been convicted of the crime of introducing intoxicating liquor, and has been sentenced by the federal court to serve a term in the penitentiary at Leavenworth, Kan., this court doth order that further proceedings in this action be stayed and continued until such time as the defendant, Matt Collins, shall be out of the/ custody of the United States Marshal on bond or otherwise. ’ ’

On March 17, 1917, the superior court entered the following order:

“Now on this day the court being informed that defendant, Matt Collins, prior to the 25th day of January, 1917, the date set in this cause for sentence, said defendant was convicted and held for sentence in the United States District Court for the Eastern District of Oklahoma, and has since been sentenced and incarcerated in the federal penitentiary at Leavenworth, said cause is hereby suspended for sentence until such time as the defendant, Matt Collins, may come into the custody of the sheriff of this county.”

The superior court of Muskogee county was abolished by act effective March 24, 1921 (Comp. Stats. 1921, § 3137), which act provided that:

“All criminal eases of which the county court * * * has jurisdiction, * * * which are now pending in said superior court are hereby transferred for hearing, trial and determination, or any other proceeding proper therein, to such county court with the same effect as if such causes had been orginally instituted therein, and such county court is hereby constituted the successor of such superior court as to all such cases so transferred.” Comp. Stats. 1921, § 3137.

On September 10, 1921, in the county court, the county attorney moved for judgment on the verdict of the jury returned on the 18th day of January, 1917, in the superior court. Appellant’s counsel appeared and duly objected, on the ground that the county court had no jurisdiction of the defendant, and moved that the motion for judgment be overruled upon the ground that said county court was without jurisdiction to render judgment under said verdict. Appellant’s motion was denied, and against defendant’s objections the county court rendered judgment on the verdict of the jury returned in the superior court, and sentenced defendant to imprisonment in the county jail for six months and to pay a fine of $500.

It also appears that, after the judgment was rendered, the county court overruled defendant’s motion for a new trial that had been pending in the superior court.

It is urged by counsel for appellant that upon the record in this case, showing that the defendant did not consent to the order of continuance made by the trial judge to a future indefinite time on which sentence should be passed, and as sentence was indefinitely suspended, and as this conviction was more than four years prior to the abolishment of the superior court, said court had lost jurisdiction to sentence the defendant, and therefore said case was not transferred to the county court by operation of law, and no order of transfer was ever made) or entered, and tbe county court had no authority or jurisdiction to pronounce judgment and sentence on the verdict; that, assuming that said superior court had not lost jurisdiction to sentence the defendant, nor the county court as the successor of said superior court, then as a matter of right the defendant was entitled to have the county court pass upon his motion for a new trial before rendering the judgment appealed from.

Our Code provides that after a plea or verdict of guilty, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment. The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed. For the purpose of judgment, if the conviction is for misdemeanor, judgment may be pronounced in the defendant’s absence. Comp. Stats. 1921, §5 2759-2761.

It further provides, if no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it must thereupon be rendered. Comp. Stats. 1921, § 2770.

Under the foregoing provisions it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time. However, there can be no doubt that a court has the right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in .arrest of judgment, or for other proper causes; but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court. Grundel v. People, 33 Colo. 191, 79 Pac. 1022, 108 Am. St. Rep. 75; People ex rel. Smith v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L. R. A. 373; Smith v. State, 188 Ind. 64, 121 N. E. 829, 3 A. L. R. 999; Comm. v. Maloney, 145 Mass. 205, 13 N. E. 482; People v. Kennedy, 58 Mich. 372, 25 N. W. 318; State v. Hockett, 129 Mo. App. 679, 108 S. W. 599; State ex rel. Dawson v. Sapp, 87 Kan. 740, 125 Pac. 78, 42 L. R. A. (N. S.) 249; U. S. v. Wilson (C. C.) 46 Fed. 748.

In the case of In re Flint, 25 Utah, 338, 71 Pac. 531, 95 Am. St. Rep. 853, the Supreme Court of Utah held:

“The court, by indefinitely suspending sentence, and permitting the defendant to go on his own recognizance, loses jurisdiction of him, so that it cannot afterwards have him rearrested, and sentence him; no authority therefor being given by (the statute), providing that, after a verdict of guilty, the court must appoint' a time for pronouncing judgment at least two days after the verdict, if the court is to remain in session so long, and * * * providing that the court shall then so’ pronounce judgment, in the absence of cause for not doing so.”

In People v. Reilly, 53 Mich. 260, 18 N. W. 849, Reilly was convicted of robbery October 22d, 1881, and moved for a new trial; but on February 10, 1882, sentence was indefinitely suspended, and he was admitted to bail on his own recognizance in the sum of $500, to appear in court February 14, 1882, and from day to day and term to term then and there to receive the sentence of the court. On November 28, 1882, he was sentenced to imprisonment for five years.

Champlin, Judge, said:

“I do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentence operates as a quasi pardon. It relieves the offender for the time being from the punishment which the law has prescribed shall be inflicted. The pardoning power under our Constitution is reposed in the Governor, and not in the judges. It is for the Governor to say whether the criminal shall be relieved from the infliction' of the penalty due to his crime. The Constitution having vested this power in the Governor, it cannot be exercised by the circuit judges indirectly by letting the prisoner to¡ bail on recognizance to appear when required to receive sentence. A stay of sentence may be granted where a certiorari is sued out, or when a writ of error is obtained for the purpose of review by the higher courts. Temporary stay may also be granted where steps are taken for a new trial; but all these are steps in the progress of the case, taken for the purpose of bringing about a change in the result.
“In this case, Reilly was convicted October 22, 1881. He moved for a new trial, which was denied February 14,1882. He took no steps to obtain a review by the Supreme Court; but on February 10, 1882, he gave his personal recognizance in the penal sum of $500 to appear in court on the 14th day of February, 1882, and from day to day, and from term to term, then and there to receive the sentence of the court. On October 30, 1882, the prosecuting attorney moved for judgment, and the court continued the same for consideration until the next term, and on November 28, 1882, sentenced Reilly to be imprisoned at Jackson at hard labor for four years. It thus appears that over a year elapsed, after Reilly was convicted of the crime of larceny from the person, before he was sentenced. During a large portion of the time he had been suffered to go at large upon his own recognizance. If the judge entertained serious doubts of his guilt, he should have recommended the governor to pardon the respondent; and if he entertained no serious doubts of his guilt, he should have pronounced judgment instead of setting the criminal at large upon his own recognizance. If such power can be exercised by a judge, it incorporates into our administration of the criminal law the ‘tick-of-leave’ system of the English judicature, without its surveillance and checks, and places the criminal at the caprice of the judge, subject to be called up for sentence at any time. If the judge can delay the sentence one year, I do not see why he may not 15 years. An exercise of such power in this age would be no less revolting to our sense of justice than was the exercise of such power in the reign of James I., when he sent Sir Walter Raleigh to the block 15 years after his conviction.”

In People v. Barrett, 202 Ill. 299, 67 N. E. 27, 63 L. R. A. 82, 95 Am. St. Rep. 230, it is said:

“Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice and to operate as a denial of tbe right of the citizen to a speedy trial. It is said, however, in this case, that all the delay was with the consent of the relator, and that he cannot now be heard to complain. It cannot, of course, be contended that the doctrine of estop-pel has any application here, nor can it be held that the relator .could waive any requirement respecting the jurisdiction of the court to enter judgment and pronounce the sentence. If the court had no power thus indirectly to suspend sentence and to permit the relator to go at large upon his own recognizance or upon parole, such power could not be conferred by his consent nor by his express request. Harris v. People, 128 Ill. 585, 15 Am. St. Rep. 153, 21 N. E. 563; Morgan v. People, 136 Ill. 161, 26 N. E. 651. The rendering of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the public prosecutor, nor to depend upon the subsequent conduct of the convicted person. If it were so, what subsequent conduct would demand or justify the pronouncing or the withholding of the sentence? And who would determine its character? Such conduct might be innocent in itself yet offensive) to those in whom the power to apprehend or to punish resided. The liberty of the citizen cannot, in a free country, be made to depend for its security on the arbitrary will of any public officer; it can be taken from him by due process of law only.”

The case of Beaubein v. State, 13 Okla. Cr. 440, 165 Pac. 213, is cited by the state in support of its contention that the trial court did not lose jurisdiction of the defendant. In that case the verdict was returned September 2, 1915, and the court appointed September 13, as the time for judgment.' Defendant filed a motion for a new trial, which was pending until October 25, 1915, when the motion was overruled and judgment rendered; appellant at the time objecting to the jurisdiction of the court to render judgment because the term at which the verdict was returned had expired by operation of law, and that the court did not pronounce judgment at the time appointed. The record recited that on the day appointed for pronouncing judgment the defendant was a .fugitive. It was held that, under the sections of) the statute above quoted, if the court is unable to render judgment at the same term of court at which the verdict of guilty is returned, it may be rendered at a subsequent term, citing the case of Ex parte Sparks, 9 Okla. Cr. 665, 132 Rae. 1118, as controlling. In the. Sparks Case it was held:

“The statute does not require that a judgment must of necessity be pronounced at the same term of the court at which a verdict of guilty in a criminal case is rendered. If the court is unable to render judgment at such term, it may be rendered at a subsequent term.”

In the Beaubein Case it was also held that it is discretionary with the court in misdemeanor cases to pronounce judgment in the absence of the defendant.

It seems to be well settled that, in the absence of a statute to the contrary, sentence need not necessarily be imposed at the same term of court at which the verdict or plea, of guilty was had, and, if the court’s purpose in postponing the imposition of sentence is incident to the administration of justice within its conceded powers, and its orders postponing sentence are unconditional and to definite periods, the jurisdiction of the court to impose sentence at a term after the trial term is not affected. Miner v. U. S., 244 Fed. 422, 157 C. C. A. 48, 3 A. L. R. 995, and see Editor’s Annotation, 3 A. L. R. 1012.

Upon a careful review of the record in this ease we are convinced that the trial court lost jurisdiction to pronounce judgment, on the verdict returned on January 18, 1917. By the order of the trial court entered on March 17, 1919, no definite time was fixed within which sentence should be pronounced. The failure of the trial court to enter judgment at the time appointed or when the order of postponement was made, or at the succeeding term, was, we think, a practical abandonment of the prosecution, and the trial court having failed to exercise its power to pronounce judgment in the defendant’s absence in term time, or during the succeeding term, or to enter proper orders postponing the time when sentence should be pronounced, lost jurisdiction to pronounce judgment on said verdict long before said court was abolished.

It follows that the county court, as the successor of said superior court, had no authority or jurisdiction to' pronounce judgment and sentence on the verdict.

Having reached this conclusion it is unnecessary to review the other questions presented by the record.

For the reasons stated, the judgment of the county court herein is reversed, and the defendant discharged.

BUSSEY, J., concurs.

MATSON, P. J., absent and not participating.


author: PER CURIAM.

text:
    Ex parte JOHN S. CHESNEY.
    No. A-4760.
    Opinion Filed July 11, 1923.
    (217 Pac. 1117.)
    Habeas corpus by John S. Ohesney for release from custody.
    Dismissed on motion of petitioner.
    Brett & Brett and Everest, Yaught & Brewer, for petitioner.
   PER CURIAM.

Petition for writ of habeas corpus, by John S. Ohesney, filed July 2, 1923, alleging illegal restraint by Tom Cavnar, sheriff of Oklahoma county. Motion by petitioner to dismiss said cause allowed, and cause dismissed.


text:
    Ex parte HARVEY TOMPSON.
    No. A-4740.
    Opinion Filed July 11, 1923.
    (217 Pac. 1119.)
    Habeas corpus by Harvey Tompson for release from custody.
    Dismissed on motion of petitioner.
    R. C. Roland, for petitioner.
   PER CURIAM.

Petition for writ of habeas corpus by Harvey Tompson, filed June 28, 1923, alleging illegal restraint by E. C. London, sheriff of Carter county. Motion by petitioner to dismiss said cause allowed, and petition dismissed.


author: BESSEY, J.

text:
    CHARLES C. GOLTRY v. STATE.
    No. A-4034.
    Opinion Filed July 14, 1923.
    (216 Pac. 485.)
    (Syllabus.)
    Perjury — Proof—Number of Witnesses Required. No person can be lawfully convicted for perjury on the unsupported testimony of one witness. The charge should be supported by at least two witnesses, or by one witness and corroborating circumstances.
    Appeal from District Court, Cotton County; Cham Jones, Judge.
    Charles C. Goltry was convicted of perjury, and he appeals.
    Reversed and remanded.
    J. F. Thomas, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charles C. Goltry was by information filed in the district court of Cotton county on December 1, 1920, charged with the crime of perjury by giving false testimony in the district court of Cotton county on the 4th day of December, 1919. By a verdict of the jury rendered January 15, 1921, the accused was found guilty as charged, and his punishment assessed at confinement in the penitentiary for a term of 10 years. From the' judgment on the verdict he appeals.

It is shown by the testimony of C. D. Cund that he was the court reporter for the Fifteenth judicial district of Oklahoma on the 4th day of December, 1919, and acted as such reporter in the trial of the case of State v. Everett Robbins, charged with the seduction of Ethel Hodges; that he took the testimony of Charles C. Goltry, the accused in this case, at that trial. The witness then read from his stenographic notes the testimony of the accused, to the effect that he had had sexual intercourse with Ethel Hodges, the prosecuting, witness in the seduction case. The state then called Ethel Hodges, who testified that she: had not had sexual intercourse with the accused, Charles Goltry, nor with; any other person excepting Everett Robbins, the defendant in the seduction case. The accused did not take the witness stand, and the issue raised by the state was supported only by the testimony of Elthel Hodges.

The accused claims that no person can be lawfully convicted of perjury on the unsupported testimony of one witness; that the testimony of Ethel Hodges, in order to sustain a conviction, should be corroborated by another witness or by facts and circumstances tending to show that her testimony was true. In no case can! a conviction for perjury be secured and sustained on the uncorroborated testimony of one witness. The underlying principle of this rule is that, if there be but one witness to prove the allegations of falsity, it amounts to the word of one person being placed against the word of another, and it necessarily remains doubtful where the truth lies, the word of the accused which is alleged to be false being sufficient to counterpoise the testimony of a single witness. 30 Cyc. subsec. 2A, p. 1453. The rule as above stated is in substance reiterated in 21 R. C. L. p. 272, where it is further stated that the contradictory evidence of one witness alone is never sufficient, as it merely establishes an equilibrium, and therefore additional weight is necessary to turn the proof against the defendant. The corroboration of a single witness for the prosecution must be by proof of independent and material facts and circumstances tending directly to support the testimony of the witness, and must be of a strong character, and not merely corroborative in slight particulars, and it must contradict in positive terms the statement of the accused. A living witness, however, may be dispensed with, where corroboration may be had by documentary or written testimony or by other facts or circumstances.

In the case of Saucier v. State, 95 Miss. 226, 48 South. 840, 21 Ann. Cas. 1155, the court said:

"The quantum of proof required in perjury is well known, and somewhere in the state’s charges that quantum should be stated to be necessary.” It should appear in some of its charges that perjury must be "established by the testimony of two witnesses, or one witness and corroborating circumstances. ’ ’

See Ex parte Metcalf, 8 Okla. Cr. 605, 129 Pac. 675, 44 L. R. A. (N. S.) 513; State v. Storey (Minn.) 15 A. L. R. 639, notes and annotations.

Since the testimony of Ethel Hodges was not corroborated in any way, either by the testimony of another witness or by any record, facts, or circumstances, it must follow that the proof was insufficient to support the verdict. The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, J., concurs.

MATSON, P. J., absent, and riot participating:


author: .PER CURIAM.

text:
    Ex parte A. B. C. DAVIS.
    No. A-4597.
    Opinion Filed July 16, 1923.
    (217 Pac. 1118.)
    Habeas corpus by A. B. C. Davis to be admitted to bail.
    Dismissed on motion of petitioner.
    Victor A. Sniggs and John Buyer, for petitioner.
    The Attorney General, for the State.
   .PER CURIAM.

This is an application of A. B. C. Davis, for writ of habeas corpus to be admitted to bail, filed March 13, 1923. Now, on this 20th day of March, 1923, petitioner by his counsel has filed a motion to dismiss said cause, which motion is sustained, and cause dismissed.


text:
    Ex parte J. W. RAWLS.
    No. A-4547.
    Opinion Filed July 16, 1923.
    (216 Pac. 1119.)
    Habeas corpus by J. W. Rawls- to be admitted to bail.
    Bail allowed.
    Frank Hickman, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

This is an application of J. W. Rawls for writ of habeas corpus to be admitted to bail pending the final hearing and determination of a charge of murder filed against him in Creek county, wherein upon his preliminary examination he was held to answer for the crime of murder, alleged to have been committed on the 1st day of January, 1923. Attached to said petition and made a part thereof is a duly certified transcript of the evidence taken upon the preliminary examination. A rule to show cause was duly entered and issued, and upon the return day the cause was submitted. Upon consideration of the testimony we are of opinion that the evidence for the state, while somewhat weak and uncertain, is sufficient to sustain the order holding the defendant to' await the action of the district court, and that petitioner is as a matter of right entitled to be admitted to bail. It is therefore adjudged and ordered that his bail be and the same is hereby-fixed in the sum of $5,000, bond to be conditioned as required by law, and the same to be approved by the court clerk of said county.


text:
    Ex parte J. V. HOLLINGSHEAD.
    No. A-4566.
    Opinion Filed July 16, 1923.
    (216 Pac. 486.)
    (Syllabus.)
    1. Habeas Corpus — Mere Irregularities in Proceedings or Judgment not Inquired into. Mere errors or irregularities in the proceedings or judgment of a court in a criminal case will not be examined or inquired into, on an application for writ of ha-beas corpus.
    2. Same, — Judgment Restraining Applicant of Liberty. To entitle one to be released, on habeas corpus, from a judgment restraining him of his liberty, the judgment must be void, and not merely erroneous.
    3. Same — Judgment not Void Notwithstanding Trial' Errors. If the court has jurisdiction of the person of the defendant and of the crime charged, and does not exceed its lawful authority in passing sentence, its- judgment is not void, whatever errors may have occurred during the trial.
    Habeas corpus by J. V. Hollingshead for release from custody.
    Writ denied, and cause dismissed.
    Don. Emery, for petitioner.
    The Attorney General, and M. W. McKenzie, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an application for. a writ of habeas corpus for the release of J. Y. Hollingshead, who, it is alleged, is unlawfully imprisoned and restrained of his liberty by J. H. Townsend, warden of the state penitentiary at McAlester; the cause of said restraint being upon authority assumed and taken pursuant to two judgments and sentences rendered in the district court of Garfield county, which are presumed to authorize said restraint, but which as a matter of fact and law do not; that said judgments and sentences are null and void, for the reason that said court had no jurisdiction to pronounce the same, one sentence being for 15 and the other for 12 years, both imposed for the crime of grand larceny, whereas the laws of this state provide a maximum sentence of 5 years as the penalty for the crime of grand larceny; and the further reason that said judgments and sentences are based upon informations that do not charge any criminal offense. A copy of said informations, verdicts, and judgments are made a part of the petition.

It is also set forth that an application was made for a writ of habeas corpus- to the district court of Pittsburg county, and denied.

It is elementary law that in habeas corpus proceedings jurisdictional questions, only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.

Before the writ is available as a means of release from confinement, it must appear that the court issuing the process has acted without jurisdiction.

In Re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118, this court holds:

"The review of a judgment of conviction and imprisonment 'by writ * ' * * is limited to the questions: Had the court which rendered the judgment jurisdiction of the sub-jeet-matter and of the person convicted? And did- the court in the course of the proceedings, which resulted in the judgment, lose jurisdiction to render a valid judgment and sentence?”

It appears from the- record before us that the petitioner was before the district court of Garfield county and was tried and convicted under two informations, each charging the crime of stealing an automobile, that upon each trial he was convicted, and, from the judgments rendered on the verdicts, appeals were taken, and said judgments were by this court affirmed. Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104, and page 108.

Our Penal Code provides:

“Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, )and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years-, nor more than twenty (20) years.” Comp. Stats. 1921, § 2120.

The informations were not attacked in the trial court, and no exceptions were taken to the judgments and sentences when pronounced, nor upon the appeals.

The trial court had jurisdiction of the crime charged in each information; the sentences pronounced were based on verdicts of convictions, were within the limits fixed by the statute, and, not having been set aside in a direct proceeding, must now be enforced.

It follows that the writ should be denied, and the cause dismissed.

MATSON, P. J., and BESSEY, J., concur,


text:
    LAKE OLIVER v. STATE.
    No. A-3929.
    Opinion Filed July 16, 1923.
    (216 Pac. 488.)
    (Syllabus.)
    1. Appeal and Error — No Right to Complain Where Punishment Assessed Was Within Purview of Two Statutes. Where the facts proved are sufficient to sustain a conviction under the provisions of either of two penal statutes of like import, the defendant cannot complain where the punishment assessed was within the purview of both.
    2. Homicide — Assault with Intent to Kill — Character Evidence. In a prosecution for an assault with intent to' kill, evidence of the good character of the defendant, or of the quarrelsome, turbulent character; of the other party to the affray, may be received and considered in mitigation of the punishment in order to determine the grade of the offense which may have been committed or the degree of punishment that should be -inflicted.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    .Lake Oliver was convicted of assault with intent to kill, and he appeals.
    Modified and affirmed.
    Morris & Jameson, for plaintiff in error.
    The Attorney General and EL L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Lake Oliver, plaintiff in error, was charged with having committed an assault, with intent to kill, upon Henry C. Fiolle, by means of a deadly weapon, on October 2, 1918. By a verdict of the jury rendered on September 1, 1920, he was found guilty as charged and his punishment fixed at confinement in the state penitentiary for a period of one year and' three months. From the judgment on this verdict he appeals to this court.

This charge grew out of the purchase of a secondhand automobile by the accused from the prosecuting witness, a dealer in new and secondhand cars, who also in that connection maintained a repair department. It is claimed that the prosecuting witness guaranteed this ear to be in good mechanical condition and good running order. Notwithstanding the terms of the guaranty, the accused, in common with many others, expected too much of a secondhand, built-over car. Soon after the purchase of the car, he found it was afflicted with all manner of mechanical and ignition infirmities, making its running operations erratic and undependable. Upon complaint of the accused, the vendor promised to adjust and replace the defective parts in his repair shop. The car was accordingly placed in the repair shop by the accused, and in the course of time a dispute arose over the amount of money 'charged for the parts and the repairs there made. Over the protests of the prosecuting witness the accused attempted to take the car from the shop without paying the full amount of the account claimed to be due the prosecuting witness. A fight ensued in which the accused seriously wounded the prosecuting witness with a butcher knife. From this evidence it seems possible that the accused had a real grievance of an aggravated nature, but manifestly he could not be justified under the law in thus redressing the wrong with a butcher knife.

There are but two alleged errors seriously urged in the brief of plaintiff in error: (1) That the verdict is not responsive to the charge; (2) that the court erred in instructing the jury as to the purpose and consideration of character evidence.

The charging part of the information is as follows:

“That one Lake Oliver, late of the county of Caddo and state of Oklahoma, on the 2d day of October, 1918, at and within the said county and state, did then and there intentionally, willfully, and feloniously and wrongfully and with the felonious intent then and there to kill one Henry C. Fiolle, did then and there intentionally, wrongfully, and feloniously commit assault and battery upon him, the said Henry C. Fiolle, by means of a deadly weapon, to wit, a large, keen, and sharp butcher knife, by then and there cutting and stabbing him, the said Henry C. Fiolle, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

This charge was probably predicated upon the provisions of section 1756, Comp. Stat. 1921, which reads as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or' other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

It might be claimed that the information was drawn under the provisions of section 1757, Id., which is as follows:

“Any person who is guilty of an assault with intent to kill any person, the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in the penitentiary for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine not' exceeding five hundred dollars, or by both such fine and imprisonment.”

It would be immaterial in this case which of these two sections of the statutes formed the basis of the prosecution, because the import of both sections is practically the same except that the penalty prescribed under the latter is not so great. The verdict rendered could be upheld under the provisions of either section.

The instruction of which particular complaint is made is as follows:

“You are instructed, gentlemen of the jury, that there has been permitted to be introduced in this case testimony with reference to the general reputation of the defendant in the community in which he resided for being a peaceful and law-abiding citizen is good. Also certain testimony with reference to the reputation of the prosecuting witness in the community in which he lived as being quarrelsome, vindictive, and overbearing; that is, being bad in that respect. All this evidence, gentlemen, is competent for your consideration and should be considered by you, together with all the facts, circumstances, and evidence in the case in determining who may or may not have been the probable aggressor in the difficulty, as well as the general consideration in arriving at the guilt or innocence of the defendant, but in this connection, gentlemen, you are instructed that if after a fair and impartial consideration of all the evidence in the case, including that as to good character of the defendant, the jury entertain no reasonable doubt of his guilt, they should convict, notwithstanding the evidence of good character, as it is not a justification or in mitigation of punishment for the commission of crime.”

It is claimed that the concluding clause, “Former good character * * * is not justification or in mitigation of punishment for the commission of crime,” is erroneous; that the testimony tending to establish that the accused enjoyed a good reputation as being a peaceable, law-abiding citizen, and the testimony tending to show a quarrelsome, turbulent disposition of the prosecuting witness, even where such evidence could raise no reasonable doubt of the commission of the offense, was admissible to be considered by the jury in mitigation of the punishment as prescribed by statute; and that the admonition to the jury that it could not be so considered was error and prejudicial to the accused.

In the case of Gilbert v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 129 Pac. 671, it was held that good character of a defendant as to the issue charged is always admissible and is material in the trial of a. criminal case, not only as a matter of defense, bnt also as a matter of mitigation. This statement was made by Judge Furman, without the citation of any authority for his declaration that good character may be received and considered in mitigation of punishment. In this case the charge was- murder, and the conviction was for manslaughter in the second degree.

That such evidence may be considered in mitigation of punishment was again held in Ernst v. State, 16 Okla. Cr. 507, 184 Pac. 793, a conviction for violating the state banking laws, an offense including no other degree of crime. Judge Armstrong, who wrote the opinion, cites no authority to support the doctrine that evidence of a defendant’s good character may be considered in mitigation of punishment.

Likewise with the holding of this court in Williams v. State, 19 Okla. Cr. 307, 199 Pac. 400, where the defendant was convicted of rape in the first degree. The statements on this subject in all three of the last-mentioned opinions are brief and perfunctory, stating no reasons for the rule announced-

It has been held in a number of other states that evidence of the good character of the defendant may be received and considered' in mitigation of punishment, in order to determine the grade of the offense which may have been committed or the degree of punishment which should be inflicted.

Commonwealth v. Cleary, 135 Pa. 64, 19 Atl. 1017, 8 L. R. A. 301, was a case where the commission of a homicide was conceded, but not the commission of murder in the first degree. The court said that in such a case the evidence of good character was entitled to come in and have its due weight; that if a'man’s good character is to avail him at all he could not need it more than when a jury is deliberating upon the question of whether he had formed in his mind a deliberate intent to take human life.

In the case of People v. Gleason, 1 Nev. 173, where the defendant was accused of murder, a charge to the effect that good character can only be taken into consideration when the jury has a reasonable doubt as to whether the defendant is the person who committed the offense was held erroneous. The only consideration involved was whether the killing of the deceased was accidental or intentional, and, if criminal, what grade of crime was committed. The charge as given took from the jury the probative force of defendant’s good character as to both issues.

In Rosenbaum v. State, 33 Ala. 354, an assault case, the court charged that the evidence of good character went only to the question of defendant’s guilt. The reviewing court said:

“In prosecutions for offenses which consist of different degrees, as declared and defined by law * * * good character should be weighed by the jury in determining the degree of guilt. ’ ’

In Aneals v. People, 134 Ill. 401, 25 N. E. 1022, it was laid down as a matter of substantive law that not only may the jury consider the evidence of good character upon the question of guilt, but if they feel constrained to find the defendant guilty it is proper to consider the same in mitigation of punishment. A like declaration of principle was approved in Hagood v. State, 5 Ga. App. 80, 62 S. E. 641.

Our own court, in Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176, a case where the defendant was convicted of murder and sentenced to death, in an opinion written by Judge Mat-son, said:

"Where the jury assesses the punishment, matters to be considered in mitigation or aggravation of the punishment may be properly received in evidence on the trial.”

In this state the statutes prescribing the penalties for various crimes in most eases fix a minimum and a maximum widely divergent, and the jury in all cases, except upon a plea of guilty, may assess the punishment, and upon request of the defendant the jury are bound to assess the punishment, to the exclusion of the court, unless unable to agree thereon. In determining the punishment the nature of the offense and the attending circumstances should be considered, also the defendant’s past record, the motives actuating the crime, or the fact that the accused has previously been convicted of similar offenses unay properly be received and considered. If the evidence is barely sufficient to support the verdict, the jury may be justified in assessing a low degree of punishment. It has been held that the prevalence of a particular offense in the neighborhood and the necessity of severe measures for its suppression may properly be considered. 16 C. J. § 3211, Criminal Law, with cases cited.

But the failure or refusal of the court to instruct the jury that the defendant’s good character may be considered in mitigation of punishment is not necessarily reversible error. A direct instruction to the jury not to consider such evidence for that purpose may also be without prejudice where it is apparent that the punishment is as light as the evidence under any reasonable construction would warrant. In this case the wound inflicted was serious and dangerous, and was inflicted without legal justification. However, on account of the aggravated nature of the events leading up to the commission of the offense, as shown by some of the evidence, the jury might have, except for the closing clause of the instruction complained of, assessed a lighter penalty. The judgment of the trial court will therefore be modified and the punishment assessed at one year and one day in the penitentiary, and as so modified is affirmed.

DOYLE, J., concurs.

MATSON, P. J., absent and not participating.


text:
    Ex parte M. L. LEARD.
    No. A-4449.
    Opinion Filed July 17, 1923.
    (216 Pac. 1118.)
    Habeas corpus by M. L. Leard to be admitted to bail.
    Writ denied.
    Crump, White & Seawel, J. Hugh Nolen, and W. J. Crump, for petitioner.
    The Attorney General and Tom Huser, Co. Atty., for respondent.
   PER CURIAM.

In this proceeding the petitioner filed in this court on September 9, 1922, his petition for writ of habeas corpus to be admitted to bail, on a charge of rape in the first degree. A transcript of the testimony taken upon the preliminary examination is attached. It is also set forth that an application was made to the district court of Okfuskee county for bail, and was denied. Upon a review of the record, it was held that petitioner was not entitled to be let to bail as a matter of legal right.


text:
    GEORGE B. CHILDS v. STATE.
    No. A-4048.
    Opinion Filed July 17, 1923.
    (216 Pac. 487.)
    Appeal from Comity Court, Caddo County; C. B. Case, Judge.
    George B. Childs was convicted of the violation of the prohibitory liquor law, and he appeals.
    Reversed.
    Morgan & Osmond, for plaintiff in error.
    The Attorney General, N. W. Gore, Asst. Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on a charge that he did have possession of two gallons of Choctaw beer, with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined for 60 days in the county jail and to pay a fine of $100. From the judgment he appealed by filing in this court, on August 13, 1921, a petition in error with ease-made. The Attorney General has filed the following confession of error:

“The record shows that the trial court, over the objection and exception of the counsel for defendant, persisted in orally instructing the jury and refused to have the instructions reduced to writing for the perusal and exceptions of the defendant, before the jury began its deliberations.
“Section 2687, subsec. 6, of the Compiled Oklahoma Statutes, 1921, provides in part as follows:
“ ‘All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the .case.’
“This statute is an old one and was construed in the case of Swaggart v. Terr., 6 Okla. Cr. 344, 50 Pac. 96, wherein the court held that a refusal to reduce the instructions to writing was reversible error; that counsel had the right to peruse the instructions and argue them to the court, presenting substitutes therefor, if he deems them proper; and that a refusal of the trial court to comply with the statute in the giving of instructions is error.”

An examination of the record discloses that the confession of error is well taken. For the reason stated, the judgment is reversed.


text:
    FRED HOOD v. STATE.
    No. A-3990.
    Opinion Filed July 18, 1923.
    (216 Pac. 1118.)
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Fred Hood was convicted of grand larceny, and he appeals.
    Appeal dismissed.
    Nelson & Simpson, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty: Gen., for the State.
   PER CURIAM.

Plaintiff in error, Fred Hood, was convicted of grand larceny, and his punishment fixed at imprisonment in the penitentiary for the term of one year. From the judgment rendered on the verdict December 10, 1920, an appeal was taken by filing in this court on June 4, 1921, a petition in error with case-made. Pending the determination of the appeal, his counsel of record filed a motion to dismiss said appeal, which motion is sustained, and the appeal herein is dismissed, and the cause remanded to the lower court. Mandate forthwith.


text:
    BILL LAMB v. STATE.
    No. A-4253.
    Opinion Filed July 23, 1923.
    (216 Pac. 1118.)
    Appeal from County Court, Nowata County; R. M. God-frey, Judge.
    Bill Lamb was convicted of assault and battery, and be appeals.
    Appeal dismissed on motion of appellant.
    Bert Yan Leuven, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Bill Lamb, was convicted of assault and battery at the January, 1922, term of the county court of Nowata county, and his punishment fixed at a fine of $50 and confinement for 30 days in the county jail. From the judgment rendered on the verdict, February 1, 1922, an appeal was perfected by filing in this court on March 20, 1922, a petition in error with case-made. Plaintiff in error, by his counsel of record, has filed a motion to dismiss his appeal. The motion to dismiss is sustained, and the appeal herein is dismissed, and the cause remanded to the trial court, with direction to cause its judgment to be carried into execution. Mandate forthwith.


author: BBSSEY, J.

text:
    TOM TRACY v. STATE.
    No. A-4054.
    Opinion Filed July 23, 1923.
    (216 Pac. 941.)
    (Syllabus.)
    1. Motion in Arrest of Judgment — Objection to Ve.rdict or Judgment Thereon, Good as Ground for Demurrer to Information — Time for Motion. An objection! to the receiving of a verdict or rendition of judgment thereon, or to the rendition of judgment on a plea of guilty, which would have been a good ground for a demurrer to the information, may be urged by a motion in arrest of judgment. A motion in arrest of judgment must be made before the rendition and entry of the judgment.

      2. Appeal and Error — Purported Case-Made Considered as Transcript. Where an appeal .is taken to this court by petition in error and attempted case-made in a case where such an appeal is not authorized by law, the purported case-made, or portions of it, may be considered as. a transcript of the> record.for consideration as such on appeal to this court.
    3. Judgment and Sentence — Where Penalty Suffered Court’s Jurisdiction Only to Set Aside a Judgment Void on Face. Where judgment has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end, and the trial court is without jurisdiction to modify, suspend, or otherwise alter the judgment, except to set aside a judgment void on its face as shown by the record.
    4. Larceny — Information—Lack of Owner’s Consent Implied by Use of Word “Steal.” The word “steal” in an information implies the want of consent of the owner, and where this term is. used a specific allegation that the property was taken without the consent of the owner is unnecessary.
    5. Criminal Law — Election of Prosecution Where Two Statutes Provide Different Penalties for Same Kind of Offense. Where two statutes provide different penalties for the same class or kind of offense, the state may elect under Which the prosecution may be maintained.
    Appeal from District Court, Comanche County; Cham Jones, Judge.
    Tom Tracy was convicted of grand larceny, and he appeals.
    Affirmed.
    C. R. Reeves, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BBSSEY, J.

Tom Tracy, referred to in this opinion as the defendant, was on the 18th day of February, 1921, upon a plea of guilty to the charge of grand larceny, sentenced to imprisonment in the state reformatory at Granite for a term of two years. At the same time two others, jointly charged with the defendant, entered plea» of guilty and received like sentences. A portion of tbe journal entry of judgment against tbe defendant fe as follows:

“Tbe above-named defendant, Tom Tracy, appeared and is present in person before tbe bar of said court for arraignment upon the charge contained in tbe information in said cause, and thereupon said information was read to said defendant, Tom Tracy, and he was asked by the court whether he is guilty or not guilty of the crime charged in said information, and thereupon the said Tom Tracy, defendant in said cause, voluntarily and in open court says he is guilty of the crime of larceny as charged in said information, and thereupon the said defendant is asked whether or not he has any just cause to show why judgment and sentence for said crime should not be pronounced against him, and, the defendant failing to show any just cause, the court accepts said defendant’s plea of guilty as charged in said information and finds the defendant guilty as charged therein. ’ ’

On the 16th day of May, 1921, at a subsequent term of court, before another district judge, and after the defendant had been taken to the state reformatory at Granite and had served a portion of the sentence imposed by the court, he filed a motion in the trial court to “vacate, set aside, and dismiss the defendant and hold for naught the judgment” theretofore rendered in the cause, for the following reasons: (1) That the court was without jurisdiction to pronounce the judgment; (2) that the plea of guilty made and entered by the defendant was made under duress, threats, and undue influence used and exerted upon the defendant by the county attorney and the sheriff and his deputies; (3) that the defendant was denied the right of counsel; (4) that the information did not state facts upon which a judgment of conviction could be predicated.

Upon consideration of this motion the court, on the 25th day of July, 1921, made and caused to be entered the following:

“This cause coming on to be heard on motion of the defendant, Tom Tracy, to arrest the judgment herein rendered in said cause .and action, and the defendant’s attorney being present in court, and the court having heard said motion and the same having been submitted with affidavits setting forth the grounds of said motion, the court is of the opinion that the same should be denied. It is therefore considered, ordered, and adjudged by the'court that the motion in arrest of the judgment of this court for conviction herein rendered against the said defendant be, and the same is hereby, denied and in all things herein overruled.
“The crime of larceny, for which the defendant is convicted, being bailable, and the defendant entitled' to bail upon his appeal to the Criminal Court of Appeals, the amount of his appeal bond is hereby fixed in the penal sum of $500. It is therefore ordered, adjudged, and decreed that the defendant shall have 30 days within which to file and give bond in order to stay the execution of the judgment pending the filing of the appeal to the Criminal Court of Appeals, and upon giving the bond in the time fixed by this court,, approved by the clerk, execution of the judgment shall be stayed during the time fixed for the settling of the case-made, and if the ease-made be settled within 30 days from this date and the appeal filed in the appellate court as required by law, then the said bond shall stay execution of the sentence during the pendency of the appeal. .
“Done in open court this 25th day of July, 1921.
“A. S. Wells, District Judge.”

Upon the same day an order of discharge was addressed to the warden of the state prison at Granite, as follows:

“To the Warden of the State Prison at Granite, Okla.: Tom Tracy, the defendant, having presented his motion in arrest of judgment and the same having been overruled by this court on the 25th day of July, 1921, and said defendant giving notice of Ms intention to appeal, tbe court having fixed bond at $500, to stay said execution and sentence and judgment in the above-entitled cause, and the said Tom Tracy having given said bond in compliance with said orders of the court and notice of his intention to appeal, it is hereby ordered that upon service of a certified copy of this order, certified to by the clerk of this court, together with the said minutes overruling said motion in arrest of judgment, the conditions thereof being fully complied with by defendant and the bond having been given as ordered by said court, that the said warden discharge him from custody immediately, until further orders of this court.
“A. S. Wells, District Judge.”

The motion made by the defendant cannot be, in a technical sense, a motion to set aside a void judgment, because the recitations in the judgment entry, until impeached in some manner provided by law, are conclusive, and this entry shows that the court had jurisdiction, and nothing appears on the face of the record to indicate that the judgment was void. Neither could this motion be entertained as a motion in arrest of judgment. Section 2756, Comp. Stat. 1921, defines a motion in arrest of judgment as follows:

“A motion in arrest of judgment' is an application on the part of the defendant that no judgment be rendered on plea or verdict of guilty, or on a verdict against the defendant on a plea of former conviction of acquittal. It may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment. ’ ’

The ruling on this motion was not such a judgment of final order that an appeal could be taken therefrom to this epurt by petition in error and case-made.

In Day v. State, 7 Okla. Cr. 276, 123 Pac. 436, it was held that when a judgment upon a conviction is rendered the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction was had, and must immediately annex together and file the following papers, which constitute a record of the action: (1) The indictment (or information) and a copy of the minutes of the plea or demurrer; (2) a copy of the minutes of the trial; (3) the charges given or refused and the indorsements as given thereon; (4) a copy of the judgment.

These constitute the record, and a cause may be taken to this court on, appeal upon a transcript of the record. The attempted case-made in this case contains the things just enumerated, so that the cause may be considered as appealed upon a transcript of the record, as distinguished from an appeal by exceptions and case-made.

In the case of Hembree v. State, 15 Okla. Cr. 422, 177 Pac. 385, it was held that where an appeal in a felony ease is by transcript of the record alone this court will carefully review such transcript for any reversible error properly raised by •such an appeal, and this though the alleged errors presented may be such only as are required by statute to be incorporated in a bill of exceptions or case-made. See, also, Smiser v. State, 19 Okla. Cr. 86, 198 Pac. 110.

It is claimed by defendant in his affidavits in support of this motion that the defendant was apprehended in another county and brought to the county jail of Comanche county, where he was confined for a period of four days; tha,t on the 17th day of February a warrant was issued charging him with larceny; that on the same day he was taken before a justice of the peace for a preliminary hearing; that he waived his right to have a preliminary, hearing; and that he was then immediately taken to the district court, where he entered his plea of guilty and, where judgment and sentence were pronounced, as appears elsewhere herein. It is further claimed that the defendant was a young man, 18 years of age, and without counsel; that he asked for permission to consult a lawyer, but that the sheriff and county attorney gave him no opportunity to do so; that he was not advised as to his rights in the premises; that Fletcher Riley, the county attorney, advised the defendant to waive his preliminary hearing and plead guilty to the charge, telling him that if he did not plead guilty he would prosecute him' vigorously and cause the punishment to be 15 years in the penitentiary.

Where there is nothing in the record to the contrary, the presumption is that the officers of the law performed their duty, and where, as in this ease, there is an express declaration in the record that defendant’s appearance was voluntary and that the court interrogated him as to whether or not he had any just cause to show why judgment and sentence should not be pronounced, and none was shown, we must conclude under all the circumstances that the affidavits of the defendant and his father were not sufficient to overcome these legal presumptions and the express declarations contained in the record.

This conclusion is further supported by the assumption that when this motion was presented to the successor to the trial judge who had originally pronounced judgment, the court must have inquired and did inquire concerning the alleged facts in support of this motion, and that his refusal to sustain the motion was equivalent to a finding of fact that the things alleged in the motion were not supported by sufficient testimony. This successor to the trial judge, holding court at the place where the trial occurred, was better able to ascertain these issues of fact than is this court from an examination and consideration of the record before us.

If this was a motion in arrest of judgment it came too late, because such a motion must be filed and should be considered before rendition of judgment. Where judgment has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end and the trial court is without jurisdiction to modify, suspend, or otherwise alter the judgment, except to set aside a judgment void on its face as shown by the record. Here it appears that the defendant was in the state reformatory at Granite; that the commencement of the period of sentence was February 18, 1921; and that the order made assuming to modify the sentence was entered on the 25th day of July, more than five months later. It further appears that this order was made at a subsequent term. We think the court was without jurisdiction to alter or modify the sentence, and that the order was not such a one as would authorize an appeal by petition in error and case-made.

True, this court could reverse or modify the judgment upon an appeal by transcript, but, as heretofore pointed out, the purported case-made, which may be considered as only a transcript, does not authorize a modification of the judgment in this ease.

This court has held in a number of decisions, some of them recent, that the word “steal” in an information implies the want of consent of the owner, and that where this term is used a specific allegation that the property was taken without the consent of the owner is unnecessary. Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010; Cope v. State, 23 Okla. Cr. 161, 213 Pac. 753; Roach v. State, 23 Okla. Cr. 28, 214 Pac. 563.

It is contended further that, since it was recited in the information that the property stolen was an automobile, the defendant could not be convicted of grand larceny. Our statutes provide (section 2288, Comp. Stat. 1921), and this court has held that where two statutes provide different penalties for the same class or kind of offense the state may elect under which section the prosecution may be maintained. Hays v. State, 22 Okla. Cr. 99, 210 Pac. 729.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

MATSON, P. J., absent and not participating.


author: BESSBY, J.

text:
    SHERMAN STOGSDILL v. STATE.
    No. A-3942.
    Opinion Filed July 23, 1923.
    (216 Pac. 681.)
    (Syllabus.)
    Homicide — Evidence—Explanatory Circumstances and Declarations Connected with Commission of Crime. Explanatory circumstances and declarations connected with the commission of a homicide, which have a tendency to shed light on the motives of the parties, are admissible in evidence, including antecedent declarations made by the deceased and those acting in concert with him, where they form some link in the chain of circumstances explanatory of their motives' or other vital issues involved.
    (a) Such testimony may also be pertinent in mitigation or aggravation of punishment."
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Sherman Stogsdill was convicted of manslaughter in the first degree, and he appeals.
    Modified and affirmed.
    Hunt & Beauchamp and Preston S. Davis, for plaintiff in error.
    Geó. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSBY, J.

Sherman Stogsdill, plaintiff in error, in this opinion referred to as the defendant, was charged by information filed January 28, 1920, with the murder of Tom Sixkiller on October 1, 1919. By a verdict of the jury rendered October 29, 1920, he was found guilty of manslaughter in the first degree, without assessing the penalty. On November 11, 1920, the court rendered judgment upon the verdict, fixing the punishment at confinement in the penitentiary for a term of 25 years. From the judgment so rendered defendant appeals.

The evidence on the part of the state is to the effect that the defendant was' a young man 23 years of age, and resided a few miles northwest of the town of Jay, with his wife and child; and that James Morgan, with his family, had moved into the defendant’s residence with him on the 1st day of October, 1919, the day the homicide was committed; that the deceased, Tom Sixkiller, was a young man' residing in that community ,and that some time during that day he had arranged for a car to take Mrs. Bess Hayesto Southwest City, Mo., that night; that Tom Sixkiller, in company with Bess Hayes, drove to the premises of the defendant in this car for the purpose of getting Lucy Wicketts, a sister-in-law of the defendant, and about the age of 18 or 19 years, who was temporarily residing with the defendant, to accompany them on this trip; that they drove up in front of the defendant’s home so as to throw the lights of the car directly upon the porch, disclosing there members of the Morgan family, the defendant’s family, and Lucy Wicketts; that the car was stopped a short distance from the front door with the lights burning and the engine funning; that Lucy Wicketts came out to the car, where she was invited to go with the occupants of the car to Southwest City, and that she agreed to go, but stated that she would have to have a little time to get ready; that Lucy returned to the house, and in the meantime the wife of the defendant came out to the car and informed Tom Sixkiller and Bess Hayes that the defendant was mad, and advised them to leave at once; that presently they noticed the defendant coming out of the house with a Winchester rifle, and that Sixkiller immediately started his car to drive away, but had to back up( a short distance in order to turn around; that all this time defendant was approaching with his rifle; that Bess Hayes jumped out of the car, and Sixkiller continued driving away; that Lucy Wiek-etts and the wife of the defendant, the sister of Lucy, tried to intercept the defendant, but that the defendant passed on outside the fence a short distance from the door and fired a shot at the car, and when the car failed to stop he fired a second shot, after which the car stopped; that Bess Hayes then came up to where the ear was, and found Tom Sixkiller, the driver, wounded by a gunshot, and covered with blood; that Mr. Morgan came up about that time, and after some little consultation Tom Sixkiller was placed in the back seat of the car, and Morgan drove the car to the home of the deceased. In going there they passed the home of Bess Hayes, where she left the party. As a result of this wound Tom Sixkiller expired a few hours later.

The testimony on the part of the state disclosed no previous difficulty between the parties, and no conversation or dispute between them at the time of the tragedy. The state’s evidence disclosed no motive, except, as stated by defendant’s wife, that defendant was mad.

The testimony of Bess Hayes was to the effect that they had driven to a number of other places before going to defendant’s home on the night of the homicide.

In the testimony of the defendant and his witnesses it was shown, or attempted to be shown, that Tom Sixkiller and Mose Hines were together during the afternoon of October 1st, baling straw at the place of a man named Francis; that they there planned to go to a dance that night, and that, after quitting work, they drove away together from Tom Sixkiller’s home about dark, stating that they were going to Goose Johnson’s; that Tom Sixkiller, Bess Hayes, and Mose Hines together went to a certain place and made inquiry for a woman by the' name of Doneghy, and afterwards drove on to the home of the defendant; that as they approached the house they found the defendant had retired for the night, and was lying on a mattress on the front porch; that they stopped the car, but that the engine continued to run, making considerable noise, and that nobody said anything, and no one got out of the ear; that they waited there for a few minutes, and then Jim Morgan, who was a brother-in-law of the defendant, left the porch and went out to the car to ascertain what they wanted; that Morgan’s little boy was with him, and that he went back to the house, and said that Tom wanted to see Aunt Lucy (Lucy Wicketts); that Lucy then went out to the car, and a moment later Reene Stogsdill, wife of the defendant, also went out to the ear; that one of the three occupants of the car informed Mrs. Stogsdill and Lucy that they were going to a dance, and wanted Lucy to gO' with' them; that Mrs. Stogsdill requested them to go away, stating that her husband did not want them there; that Tom Sixkiller replied, “Oh, h — ! Bill (the defendant) won’t do anything;” that after Mrs. Stogs-dill and her sister had returned to the house the car moved off a short distance, and stopped near the corner of the lot; that after it stopped a shot was fired out of the car in the direction of the house, whereupon the defendant reached inside the door, picked up his gun, and fired from off his porch in the direction of the car, under a claim of justification in the defense of himself and members of his family; that only two shots were fired, one from the car towards the house and the other by the defendant towards the ear; that neighbors living near the home of the defendant heard two shots fired, and only two; that after Sixkiller was mortally wounded and taken to his home two- witnesses found a .38 Colt’s pistol, which they took from the ear and hid in some rubbish until the following morning, and that this pistol contained one empty chamber and one cartridge which had been snapped but had not exploded. The evidence further disclosed that a short time prior to the killing the defendant had had a fist fight with Tom Sixkiller in the town of Jay, when the deceased had told the defendant that if he fooled with him any more he was going to kill him, and that the defendant warned the .deceased to stay away from his home and stay away from his sister-in-law, Lucy Wicketts.

On cross-examination of Bess Hayes the defendant sought to show that this hostile feeling between the deceased and the defendant grew out of the fact that Sixkiller, Bess Hayes, and a man by the name of Enloe had shortly prior to that time taken Lucy Wicketts to a place in Yellow Bird Hollow for immoral purposes. This offer was by the court refused. The defendant, on further cross-examination of Bess Hayes, sought to show that Tom Sixkiller and Mose Hines took Lucy Wicketts to a dance on' Downing Creek one night, where they were instrumental in getting her drunk. The court refused to permit the witness to answer these interrogations.

The testimony of the defendant himself is to the effect that when the car was driven up close to the house in such manner as to throw the light upon the porch, and after it had remained there for some little time, he told his wife to go out there and tell the persons in the ear to leave; that at that time he did not know who the occupants of the car were, except that he could see that there were two men and one woman; that his wife came back and informed him who they were, and later Lucy Wicketts came to tbe porcb, and said sbe believed she would go with them; that the ear moved to a place about 30 or 40 yards from the house, where it stopped, and some one in the car fired towards the house; that he then reached inside the door and got his Winchester and fired one shot at the car.

The jury in this case was selected without either side exercising any challenges. The defendant excepted to three of the instructions given, instructions numbered 9, 14, and 19. Thé alleged errors complained of in the petition in error may be grouped under two heads:

(1) That the court erred in excluding competent testimony on behalf of the defendant.

(2) That' the court erred in giving instructions numbered 9,14, and 19.

Without setting out in detail the language of the instructions complained of, we find upon a careful examination of these and the other instructions given that the charges to the jury, separately and as a whole, were fair to the defendant. The only other question remaining to be considered is whether the court erred in excluding the testimony we are about to analyze.

It will be observed that the evidence on the part of the state disclosed no motive for the homicide. The defendant, in a number of ways, and ati various stages of the trial, sought to show that Tom Sixkiller and his companions were in a conspiracy to corrupt the virtue and good character of Lucy Wick-etts, the sister-in-law of the defendant, then temporarily residing with him. If it could have been shown that these three persons were of bad moral character, and that their common purpose was to debauch and entice this girl into evil practices, it seems reasonable that such facts, if properly elicited, would shed light upon the motives surrounding the homicide, and should go to the jury in order that they might determine the state of mind and underlying motives of the defendant at the time of the killing. It has been held in many cases that evidence of previous difficulties between the defendant and the person killed, and the facta and circumstances explanatory of the ill-feeling or other cause of such difficulties, are admissible. There must, of course, be some link of association between the facts sought to be proved and the immediate facts surrounding the killing to give color of cause and effect to the transactions sought to be proved. 30 C. J. “Homicide,” § 407, notes and cases cited.

It is earnestly contended by counsel for defendant that the court foreclosed the defendant’s right to show that there was no intention on the part of Tom Sixkiller, Bess Hayes, and >Mose Hines to go to Southwest City, but that, on the contrary, it was their intention to attend a dance; also, that they were prevented from showing the bad character of the deceased and the other parties with him, and their purpose in going to the home of the defendant.

Defendant sought to show by the witness Larkin Hopkins that he was assisting Sixkiller and Hines in baling straw that afternoon, and that these two told him that they were going to a dance that night, and invited him to go with them. This testimony was sought to be introduced as a circumstance tending to show that Hines was in the car, as indicated by other testimony. The court excluded the proffered testimony as being immaterial.

J. R. Harper testified that he had been city marshal of the town of Grove, near where Bess Hayes lived; when he was asked if he knew the reputation of Bess Hayes for being a moral, upright, and virtuous woman, the court refused to permit him to answer. The defendant then offered to prove by this witness that such reputation was bad.

The defendant offered to prove by Hubert Link that on the night of the killing, while Sixkiller was in the car with Mose Hines, Sixkiller told witness that they were going to Coose Johnson’s, and, when witness asked him what for, he said “To coose a little.” This proffered testimony the court likewise rejected.

Defendant offered to show by witness Susie Caudle that on the night of the homicide Sixkiller and Hines called at her place for a woman named Marne Doneghy, and that one of them stated to the Doneghy woman, in the presence of the witness, that they were going over to the defendant’s house and get Lucy Wicketts to go with them. This offer the court refused. The court also refused to permit Bess Hayes, on, cross-examination, to testify as to whether she was not a married woman, living with her husband, refused to permit her to answer whether Mose Hines was not a married man, and further refused to let her answer as to whether the deceased, the witness, and others, on a former occasion, a short time previous, were not instrumental in taking Lucy Wicketts to a disreputable dance, where they induced her to get drunk. The court held that such interrogatories were not proper cross-examination, and that such evidence was inadmissible, either as grounds for impeachment or otherwise. All the matters so excluded tended to corroborate the claim of the defendant that these were disreputable people, who were then conniving to entice Lucy Wicketts away from her home to participate in another moral debauch, and that this evidence was competent to go to the jury for whatever it was worth. It may be that Bess Bayes was as chaste as snow, that Mose Hines was a man of irreproachable character, and that the claim of the defendant that they were not of good repute, and had evil designs upon his sister-in-law, was without foundation. That, however, would not affect the relevancy of the testimony. We think these were proper matters for the consideration of the jury, to aid them in determining whether the defendant was justified in shooting as he did, and, if not, to aid them in deciding whether the shot was fired maliciously, with intent to kill.

This testimony might further have been considered by the jury in mitigation of punishment, and, if the excluded testimony, or some of it, had been submitted to the jury, the jury might have been able to agree upon the penalty to be inflicted, and might have assessed a lighter penalty than the 25 years’ imprisonment assessed by the court. The testimony of the defendant himself indicates that he was at least guilty of manslaughter in the first degree. If his testimony is to be believed, the defendant fired the fatal shot after the deceased had fired one shot, at a time when the deceased was making no attempt, either real or-apparent, to renew the difficulty. Under the circumstances, however, the defendant had no means of knowing but that the attack might momentarily be renewed.

For the reasons stated, the judgment of the trial court will be modified, assessing the punishment at 15 years in the penitentiary, and as so modified is affirmed.

DOYLE, J., concurs.

MATSON, P. J., absent, and not participating.