author: ''"'DOYLE, J.

text:
    PETE STARK v. STATE.
    No. A-1638.
    Opinion Filed October 18, 1913.
    (135 Pac. 441.)
    1. INDICTMENT AND INFORMATION — Allegations—Wrongfulness of Act — Assault with Intent to Kill — Information. It is not essential to the validity of an information for assault with intent to kill under section 2336, Rev. Laws 1910, that the word “wrongfully” be used.
    2. APPEAL — Presumption of Irregularity. The proceedings of a court of record are presumed to have been regular and in due form of law, and we must presume that the clerk or eounty attorney read the information and stated the plea of the defendant to the jury, unless the contrary appears from the record.
    3. SAME — Verdict. It is the province of the jury to determine questions of fact and decide between conflicting inferences, and the duty of this court to interfere arises only when it can see that the verdict is contrary to the evidence or appears to have been influenced by passion or prejudice.

      Error from District Court, Stephens County; Frank M. Bailey„ Judge.

    Pete Stark was convicted of assault with intent to do bodily harm on an information charging assault with intent to kill, and brings error.
    Affirmed.

      Stuart, Cruce & Gilbert, for plaintiff in error.
    , Chas. West, Atty. Gen., and C. J. Davenport, Asst. Ally. Gfen., for the State.
   ''"'DOYLE, J.

This appeal is prosecuted from a conviction had 'in the district court of Stephens county. The verdict was guilty of assault with intent to do bodily harm, leaving the punishment to be fixed by the court. The judgment and sentence was rendered November 9, 191], and the punishment assessed at imprisonment in the penitentiary for a year and a day.

The information charged:

“The said Pete Stark, late of Stephens county, and within the jurisdiction of this court, did then and there willfully, unlawfully, feloniously, maliciously, and purposely, and with premeditated malice, make an assault, and then and there, at and against, and in contact with one Henry Bloomhoff, did feloni-ously, purposely, and with premeditated malice shoot a certain shotgun, then and there loaded with gunpowder and leaden bullets, which he (the said Pete Stark) then and there in his hands had and held, with the intent then and there him (the said Henry Bloomhoff) feloniously, purposely, and with premeditated malice to kill and murder, contrary to,” etc.

The assignments of error relied upon for a reversal of the judgment are in effect as follows: Error in overruling the demurrer to the information. Error in overruling the objection of the defendant to the introduction of any evidence in the case for the reason the comity attorney did not read the information to the jury and state the defendant’s plea thereto. That the verdict of the jury is contrary to law and is not sustained by the evidence.

Counsel contend that the information is demurrable because it does not use the exact words of the statute, in that the word “wrongfully” is omitted. Section 2336, Rev. Laws 1910, provides :

“Any person who intentionally and wrongfully shoots, * * * with intent to kill any person, * * * is punishable by imprisonment in the penitentiary not exceeding ten years.”

The information does not use the exact words of the statute; but, if the act was feloniously done, it follows that it was wrongfully done. The precise words of the statute need not he used. See Procedure Criminal; section 5745, Rev. Laws 1910. However, the conviction was had upon an included offense as defined by section 2344, which provides:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, .although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding'one year.”

The information is unquestionably sufficient to charge' the offense of which the defendant was convicted and we think sufficient to charge the higher degree, and the demurrer thereto was properly overruled.

The record shows that the county attorney made the opening statement for the state, and counsel for the defendant declined to make a statement at that time. The complaining witness was called, sworn, and certain questions asked him. Thereupon the record shows the following objection:

“The defendant objects to the introduction of further testimony because the information does not state facts sufficient to constitute a public offense, and for the further reason the proper predicate has not been laid for the introduction of testimony. By the Court: Overruled and exception allowed.”

Section 5870, Rev. Laws 1910, subd. 1, provides:

“If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.”

There is nothing in the record in this case to show that the information was not read by the clerk to the jury, and we must therefore presume that it was.

The evidence introduced the state shows that the prosecuting witness, Henry Bloomhoff, and the defendant, Stark, lived on adjoining farms. Bloomhoff and defendant made a trade whereby Bloomhoff exchanged a buggy and pony, a mule, and some harness for the cotton, corn, cane, and three hogs, three head of cattle, six chickens, and certain farming implements, all belonging to defendant. The agreement further was t'o the effect that defendant would turn over the possession of the two-room house on defendant’s farm to Bloomhoff. Defendant was planning to leave and go to Chickasha or Texas. The property mentioned was delivered to the respective parties, except the chickens, which were taken by Bloomhoff from defendant’s place in his absence. Thereafter defendant went to Bloomhoff and accused the latter of stealing the chickens. There was some controversy as to' what occurred upon defendant’s visit to Bloomhoff’s. Defendant took two of the chickens and was “fussing” about the trade. Bloomhoff returned the other four chickens. The misunderstanding as to the chickens resulted in some remarks of a violent character. On the day of the difficulty, there had been a rain which interfered with work in the hayfield. John Fritz, who had been assisting defendant in loading defendant’s household goods, came to Bloomhoff and told him defendant had finished moving; and Bloomhoff and his father got in a wagon and drove over to the place which defendant had occupied. Young Bloomhoff took a hammer and some nails to close up the house. Fie got out of the -wagon, went up to the house, put his foot on the step, starting to go into the house, when defendant shot him with a shotgun; the wound being inflicted in his back. The door into which Bloom-hoff started was in the south side of the house. There was a partition in the house, separating the east and west rooms. Defendant was behind the door in the partition and about ten feet away. When Bloomhoff was shot, he fell outside the door. Defendant came out and said to Bloomhoff, “You--you, I will learn you something.” Defendant’s father was at the wagon. Defendant said to him, “Now, hike you -you, or I will shoot you like the. kid,” and held the gun in a shooting position toward Bloom-hoff’s father. After the shooting, Harrison Jenkins, who had' been in the east room, came out and said, “Search him.” Bloom-hoff told them he did not have anything. Defendant said, “I guess the officers will be after me right away.” And further said, “’Where is the best place to go, to Uncle John’s or to my place.” At the time Bloomhoff started into the house, he had in his hands the hammer and nails; he had started to close the house up. Bloomhoff had been there in the morning when defendant was loading up; the blinds were up. When he went there to close the house up, “the blinds were all down and everything closed up.”

The defendant and his witness, Jenkins, testified that at the time of the difficulty they were in the house; that defendant was iii the west room cleaning up; that when Bloomhoff came up defendant was at the middle door; that Bloomhoff came in and struck at defendant with the hammer, when defendant shot Bloomhoff ; that Bloomhoff ran out of the door, defendant following; that defendant told Bloomhoff’s father to get his team and get away'. Defendant testified that, at the time Bloomhoff brought the chickens back, he delivered to Bloomhoff a horse collar which the latter claimed defendant had taken but which was not a part of the trade. He" further says that at that time Bloomhoff used violent and abusive language in the presence of his wife; that he had him arrested for it; that he shot Bloom-hoff to prevent the latter from hurting him; that at the time Bloomhoff struck at him the gun was standing by the window; that he reached for it, got it, and shot Bloomhoff; that Bloom-hoff was about six inches from him when the shot was fired. Rater he said Bloomhoff was about three feet away when the shot was fired.

The jury are the exclusive judges of the facts proved and of the weight to be given to the testimony of each witness who testifies in the case. They had the witnesses before them and could see their manner of testifying, and they no doubt, in determining the truth, took into consideration all the attending circumstances of the case.

Where the verdict of the jury has been approved by the trial court, this court will not disturb the judgment, where there is evidence to support the verdict, unless it appears to be clearly wrong. It follows that, in the absence of errors of law prejudicial to the rights of the defendant, the judgment should be affirmed. Upon a careful examination of the record we find no such error.

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

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LONG v. ALLEN, Dist. Judge.

    No. A-2084.
    Opinion Filed October 18, 1913.
    (135 Pac. 443.)
    MANDAMUS — Change of Judge. Where one of the judges of. a judicial district, on application for a change of judge in a criminal case, expressed a willingness to disqualify himself, if the other district judge was willing to try the ease, a writ of mandamus will issue to compel him to certify to, his disqualification.
    Original proceedings in mandamus by James E. Long against R. C. Allen, District Judge of Third Judicial District.
    Writ allowed.

      Bailey„ Wyand& M&on, Watts & Watts, and B. M. Galla-her, for relator.

      W. P. Z. German and J. C. Pinson, for respondent.
   PER CURIAM.

The petitioner, James E. Long, on September 10, 1913, filed in this court an application for writ of mandamus, which, omitting formal parts, reads as follows:

“Comes the relator in the above-entitled cause, James E. Long, and for his cause of action against the respondent states that he is a citizen and resident of Wagoner, Wagoner county, Oklahoma, and has been for a number of years last past; that at the November election, 1912, he was elected to the office of sheriff of said county; that on the 6th day of January, 1913, after having given bond as such sheriff as required by law, he entered upon the discharge of the duties of that office, and continued to so act until July 23, 1913; that the respondent is a resident of Muskogee, Muskogee county, state of Oklahoma, and at the November election, 1910, was elected one of the judges of the Third judicial district of the state of Oklahoma, which is composed of the counties of Wagoner and Muskogee; that on the 21st day of July, 1913, the board of county commissioners of Wagoner county, Oklahoma, filed with the district court of said county, the respondent presiding, accusations against the relator herein, asking for his removal from said office, and that on the 23d day of July, 1913, said court, the respondent presiding, made an order suspending the relator as sheriff of Wagoner county, which is still in force; that on August 11, 1913, the said respondent convened a grand jury in Wagoner county, and that a few days later, and while said body was in session, it returned into open court an indictment against this relator, charging him with the crime of embezzlement, which is numbered 700, a copy of which indictment is hereto attached as a part of this application; that on the 30th day of August, 1913, the relator herein filed with the clerk of the district court of Wagoner county, Oklahoma, said cause not having been set for trial, an application setting forth grounds and facts upon which the relator claimed that the said respondent was disqualified, and therein requested the said respondent to certify his disqualification to sit as a judge in the trial of said cause, and gave notice to the county attorney of Wagoner county that said application would be taken up at Wagoner on September 1, 1913, at the hour of 9 :30 a. m., which said application and affidavits attached thereto as a part thereof are in words and figures as follows.”

Attached to this petition is a copy oí the petition for change of judge in case No. 700 in the district court of Wagoner county entitled State of Oklahoma against J. E. Long, together with more than 100 typewritten pages of affidavits. The alternative writ was issued, returnable September 24th, at which time respondent filed his answer, which, together with exhibits and affidavits, covers about 100 typewritten pages. At that time the case was, orally argued, and counsel for relator and respondent have filed elaborate and exhaustive briefs.

Upon a careful examination and consideration of the record and the briefs, our conclusion is that a change of judge should be granted in this case. We doubt the propriety of reviewing the evidence, as it in a large measure goes to the merits of the ■charge against the relator, and it becomes unnecessary, as our ■decision is based upon the fact as shown by the record, that the respondent was willing to disqualify, if Judge de Graffenried, the other district judge of the Third judicial district, would try the case.

In the case of Kelly v. Ferguson, 5 Okla. Cr. 316, 114 Pac. 631, it is said:

“Any attempt upon the part of a disqualified judge to influence the selection of his successor is a violation of the spirit if not the letter of the law, and might be ground for setting aside a verdict of conviction.”

Respondent i'n his answer states that he:

“ * * * called the Hon. R. P. de Graffenried at h'is residence in the city of Muskogee, and over the telephone advised him of the action taken by the board of county commissioners of Wagoner county, and of the fact that respondent’s attention had been called to said action by said board by a member of the hoard of county commissioners, and requested the Pión. R. P. de Graffenried to go to Wagoner to receive said accusation; that Hon. R. P. de Graffenried advised respondent that he was busily engaged in the trial of civil cases in the city of Muskogee, and could not go to Wagoner; that respondent then stated to the Hon. R. P. de Graffenried that the charges were in their nature criminal, and that under the agreement and understanding heretofore had, which affiant says is now of no effect except as a mutual understanding for the convenience of the judges, that he, the said Hon. R. P. de Graffenried, ought to take charge of the cases, and offered to relieve him in the trial of cases in the city of Muskogee if he would go to Wagoner, receive the charges, and take such action as he deemed proper; that the said Hon. R. P. de Graffenried then stated to respondent that inasmuch as Wagoner county was the home county of respondent, that he felt like it was respondent’s duty in this matter to take charge of the cases, and requested respondent, to go to Wagoner, and hear the case, and take such action as respondent deemed advisable.”

It was claimed in the oral argument that the only motive that prompted respondent in making this statement was that he intended to save the expense of an outside judge. Plowever, we are inclined to think that respondent has said that he would either try the relator or the relator would have to be tried by the judge designated by respondent.

For this reason, it is the opinion of this court that the writ of mandamus should issue as prayed for.


author: ARMSTRONG, P. J.

text:
    CLEVE CALVERT v. STATE.
    No. A-1627.
    Opinion Filed October 21, 1913.
    (135 Pac. 737.)
    1. APPEAL — Verdict, (a) Under the law in Oklahoma controverted questions of fact, involving the guilt or innocence of a person on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury.
    (b) When an accused is on trial and there is a direct conflict in the testimony between witnesses for the state and witnesses for such accused on the material issues, this court, in the absence of error of law, will not on appeal reverse a conviction.
    2. NEW TRIAL — Grounds. A supplemental motion for a new trial in a criminal case based on an allegation of newly discovered evidence is properly denied, when the showing made clearly indicates that the testimony is not newly discovered evidence, but cumulative evidence which would tend only to corroborate other • testimony given on the trial.

      Appeal from District Court, Carter County; S. H. Russell, Judge.

      Cleve Calvert was convicted of larceny of domestic animals, and he appeals.
    Affirmed.

      Guy H. Sigler, R. A. Howard, and Chas. Von Weiss, for plaintiff in' error.

      Smith C. Matson and C. I. Davenport,. Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, Cleve Calvert, was tried and convicted at the October, 1911, term of the district court of Carter county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of one year. The proof upon the part of the state tends to show that W. W. Means was living at Plewitt, and was the owner of a pale red heifer calf running on the range near said town; that the plaintiff in error, Calvert, stole the calf, as alleged in the information, changed the mark, and branded it, but did not use his regular brand. After having missed the calf for some time Means found it in the possession of Calvert. Pie testified that Calvert told him that he had bought it from Willie Wilkes, and paid for it by check on the First State Bank of Hewitt. Later, when Means asked him to produce the check, Calvert stated that he did not pay for it with a check, but paid for it with money. A number of witnesses testified positively that the calf in question was that of the prosecuting witness. On behalf of plaintiff in error some two or three witnesses, vdiose reputations are attacked, one of whom having formerly served a term in the penitentiary for larceny, testified that they sarv Calvert when he purchased the calf of Willie Wilkes. A number of other witnesses testified to the good reputation of Calvert in the community where he lived. On these facts the jury found plaintiff in error guilty, and assessed his punishment at a year in the penitentiary. The court who presided over the trial declined to set aside the verdict and grant a new trial. There are no errors of law on which a reversal can be predicated. The instructions are fair and completely cover the issues joined.

We have in many cases announced that under the law as it exists in Oklahoma the appellate court will not undertake to reverse a judgment, in the absence of errors of law, when there is a clear conflict in the testimony, after a jury has found adversely to the contentions of an accused and the finding has been approved by the trial court. An appeal in such case is absolutely useless unless there are substantial errors of law h> be relied on. We v cannot say in this case that the verdict is contrary to the evidence as a matter of law. Therefore we cannot reverse the judgment. The statutory law in Oklahoma goes further than in most states, and it is clear that the purpose and intention of the lawmaking power was to leave almost exclusively questions of fact with the jury. The trial court has greater power to disturb the finding of the jury than the appellate court, and when the trial court who saw and heard all the witnesses and observed them on the stand places the stamp of approval on their verdict, this court will not interfere therewith, and especially so when there is nothing in the record to' throw any light upon the credibility of the persons testifying adversely to the accused. The issue in this case was an issue of fact tried by a jury as contemplated by law, and we cannot say it was erroneously decided.

The only other question to be considered is based upon a supplemental motion for a new trial relying on an allegation of newly discovered evidence. This contention is founded on an affidavit made by Willie Wilkes and filed in the court below, in which affidavit the said Wilkes states that he sold the yearling to Calvert for $8 in money. This evidence is not newly discovered evidence, but is cumulative evidence which would have been admissible, and which would have corroborated the testimony of other witnesses who upon the trial testified that they saw Cálvert buy the yearling from said Wilkes. The trial court, who heard all the witnesses testify, and who was necessarily familiar with a great many details which cannot be put into the record, overruled this motion. We cannot say that he was in error in doing so. To reverse the case on that ground alone, in the absence of any stronger showing, would be tantamount to saying the trial court arbitrarily deprived the plaintiff in error of his liberty wrongfully. We do not think he did or would do so. The record does not bear any indications that the court sought to do otherwise than to give the accused a fair and impartial trial. This is a case which could have been decided by the jury, so far as the facts disclosed by the record are concerned, either for or against the accused. They acted entirely within their province; and, in the absence of material errors of law, we find nothing upon which we could conscientiously reverse the judgment. It is therefore in all things affirmed.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


author: DOYLE, J.

text:
    PHIL BARNES v. STATE.
    No. A-1815.
    Opinion Filed October 25, 1913.
    (135 Pac. 944.)
    APPEAL — Judgment. This court will not reverse the judgment of the trial court for lack of evidence where there is competent evidence in the record reasonably tending to sustain the judgment.

      Appeal from County Court, Oklahoma Comity; John W. Hayson, Judge.

    Phil Barnes was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Charles H. Ruth, for plaintiff in error.

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

This is an appeal from a judgment of conviction upon an information charging the defendant with an unlawful sale of whisky. The verdict, omitting formal parts, was as follows:

“We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the county jail for thirty days, and to pay a fine of $50.00. We, the jury, would respectfully recommend to the court that you suspend the jail sentence if possible.”

The judgment and sentence was entered May 24, 1912.

The prosecution gavefin evidence the testimony of S. J. F'agin as follows:

“On January 10th I went into 101J4 Reno street, and bought a bottle of whisky from the defendant, paid him 50 cents for it, and arrested him. Charles Miller was with me; he is now in Alabama. Marked the bottle for identification, and gave it to the county attorney. Was a deputy constable and an enforcement officer employed by the World’s Faith Missionary Association of Shennandoah, Iowa, and was paid by a man down in Texas.”

J. C. Gilmore testified that he was a deputy constable and an enforcement officer employed by the Ministerial Alliance, the Civic League, and the Anti-Saloon League, and the county attorney ; that he sent the complaining witness to this place on January 10th.

Defendant, as a witness on his own behalf, testified that he was a carpenter by trade, and was in the place on Reno street when the complaining witness came in and asked “if we had an}' whisky, and I told him that I did not have anything to' do with the place, and had no whisky”; that “he called me out, and arrested me, and brought me to the courthouse”; that he had never been charged with having violated any criminal laws before.

William Housh 'testified that he was in the place when Mr. Fagin and another man came in; that Fagin and the defendant went into the back room; that he did not see any whisky sold by the defendant to the complaining witness.

The only question presented goes to the merits of the case. It is claimed by defendant’s counsel that the evidence does not warrant the conviction. We think there is enough evidence to support the conviction, and, this being the case, the jury were the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. It is no more the province of this court than of the trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate functions of the jury, and neither can substitute its own judgment for that of the jury, where it appears that the defendant had a fair and impartial trial.

Upon a careful consideration of the record, we discover no ground for disturbing the judgment. It is therefore affirmed.

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


text:
    T. S. DIFFEY, JR., v. STATE.
    No. A-1689.
    Opinion Filed October 25, 1913.
    (135 Pac. 942.)
    1. RAPE — Sufficiency of Evidence. In a prosecution for statutory-rape, the evidence is held sufficient to support the verdict and judgment, and that no reversible error was committed on the trial.
    2. APPEAL — Verdict. It is the province of the jury to determine questions of fact and decide between conflicting' inferences, and the duty of this court to interfere arises only when it can see that the verdict is clearly against the weight of evidence or appears to have been influenced by passion or prejudice.
    3. NEW TRIAL — Grounds—Discretion. A motion for new trial, after judgment, on the ground of newly discovered evidence, is addressed to the sound judicial discretion of the trial court. Testimony offered for the purpose of contradicting the testimony of the complaining witness is cumulative and therefore not sufficient ground for granting a new trial.
    4. RAPE — Evidence—Hearsay—Age of Prosecutrix. In a prosecution for statutory rape, testimony of the person who took the school census that an entry of prosecutrix’s age as being eighteen was made according to a statement given him by her sister, not coming within any rule admitting hearsay testimony as to age, was incompetent.
    5. SAME — Previous Chaste Character — Burden of Proof. In a prosecution for statutory rape committed on a seventeen year old girl, the female is presumably of previous chaste character, and the burden is on the state to prove same only after defendant has introduced evidence to show the contrary.

      Appeal from District Court, Tillman County; Frank Mathews, Judge.

      T. S. Diffey, Jr., was convicted of rape, and appeals. Affirmed.

      H. P. McGuire and Stuart, Cruce & Gilbert, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and Jos. L. Hull, Asst. Attys. Gen. '(B. M. Parmenter, of counsel), for the State.
   DOYLE, J.

The plaintiff in error was convicted upon an information duly filed by the county attorney in the district court of Tillman county on the 5th day April, 1911, charging the crime of rape upon the person of Floy Marsh, a female over the age of 16 years and under the age of 18, to wit, the age of 17 ji-ears, and of previous chaste and virtuous character, and not then and there the wife of the defendant, alleged to have been committed on the-day of September, 1910. On the 17th day of October, the jury returned their verdict finding the defendant guilty as charged and assessed his punishment at imprisonment for a term of five years. On the 20th day of October, 1911, the court sentenced the defendant in accordance with the verdict of the jury to be confined in the state reformatory at Granite for a term of five years. On the 27th day of December, the defendant filed a supplemental motion for a new trial on the grounds of newly discovered evidence. The motion was overruled. To reverse the judgment defendant appealed b)'- filing in this court April 10, 1912, a petition in error with case-made.

The first assignment of error goes to the merits of the case. It is claimed by defendant’s counsel in an elaborate argument that the evidence was insufficient to justify the verdict; and that certain evidence discovered after the judgment, and shown in support of the supplemental motion for a new trial, so affects the proof relied upon by the prosecution as to make, it probable that upon another trial a different verdict would be returned.

The facts of this case, as we gather from the evidence, are as follows: Floy Marsh lived at Frederick; went to school with defendant and knew him for about four years; began going with him in September, 1910, when she was working in the telephone office; her working hours were from 12 to 1 and from 6 to 9 p. m. The defendant would come to the telephone exchange and' would walk home with her. About two weeks after he began going with her the first act of intercourse occurred. He went with her about three months and continued to have intercourse with her. About Christmas time she 'discovered that she was pregnant and she left Frederick and came to Oklahoma City and stayed for two weeks, and then went to Purcell and worked in the Harvey eating house, and went from there to Dodge City, and from there returned to Frederick, and on May 6, 1911, gave birth to twins, two boys, one weighing 2}4 pounds and the other 3 pounds; that one died when three days old; that the defendant was the father of her children; that she was unmarried and never had sexual intercourse with any person other than defendant; that after the children were born, and after defendant’s arrest, a deputy sheriff brought him to the home of the complaining witness, and defendant acknowledged to her 'and her mother that he had brought disgrace upon them and said he would go and see his father and then get a license and return and marry her. He returned that afternoon and said he had changed his mind; that his father had advised him to plead not guilty.

On behalf of the defendant four doctors testified as medical experts. The subject-matter of their testimony related to normal and premature births and to the indications showing whether a birth was premature or normal. However, it was admitted that the children were prematurely born.

Ed. Walker testified that he had kept company with Floy Marsh and that one night between the 1st and 10th of September, 3910, he took her buggy riding and had intercourse with her; that he and the defendant were “chums.”

J. L. Davis testified for the defendant that he was president of the school board of Frederick and took the census in 1910 and 1911, and an entry made in March, 1910, shows Floy Marsh, age 18, a girl; that the entry was made according to the statement as to her age given by her sister.

T. S. Diffey, Sr., testified that he was summoned to Mrs. Marsh’s home a day after he learned of the charge having been made against his son, the defendant. He went over with his son. Mrs. Marsh charged his son with being the cause of Floy’s pregnancy, and he said if that was the fact he would make his son marry her, but the defendant insisted that he was not.

T. S. Diffey, Jr., defendant, as a witness in his own behalf, testified: That he was 18 years old. Had known Floy Marsh since October, 1910. He'had been talking to her over the phone before that and had spoken to her on the street about a week before then. He went with her five or six times in October but never went out of the town with her.. Denied that he ever had intercourse with her. Never heard of her delicate condition until the night before the charge was made.

In rebuttal Mrs. Morrow, who lived next door to the Marsh family, testified that defendant had frequently, during July and August, 1910, called for Floy M'arsh over her phone as the Marsh family did not have a phone.

The manager of the telephone company testified that he advised her to stop talking so much to the defendant over the phone and for this reason she was discharged.

Mrs. McGinn testified that from her experience as a nurse and her examination of the children they were prematurely born. The finger nails were just two-thirds “grown out”; the babies were small, each weighing about two pounds, with no hair; and they would not cry, but would just whine.

Mrs. Cline testified that she was present at the birth of the twins; that they did not seem to have any eyelashes, and they did not cry; they just whined; and their circulation was poor.

The complaining witness, recalled, testified that she never had sexual intercourse with Ed. Walker.

The supplemental motion for a new trial contains the affidavits of five persons as to what the school census’ records show the age of the complaining witness to be, and statements claimed to have been made by the complaining witness as to her age, contradicting her evidence in that respect.

The defenses interposed by the defendant were: That he did not have intercourse with the prosecutrix; that the prosecutrix was over the age of 18 years at the time she claimed he had intercourse with her; and that in any event she was not of previous chaste and virtuous character.

Upon a careful consideration of the evidence in the case, there can be no doubt but that the verdict of the jury is amply supported, if they believed the evidence given on the part of the state. We find no sufficient reason for believing that the testimony given by the complaining witness, so far as material facts are concerned, is not worthy of belief. It is corroborated in detail by impartial witnesses. The defendant’s denial of having sexual intercourse with her is without any corroboration whatever.

The only competent testimony adduced shows that she would not be 18 years of age until the following March. The evidence of the president of the school board was mere hearsay and does not come within any rule admitting hearsay testimony as to age.

Finally, it is contended that prosecutrix was not shown to have been of previous chaste and virtuous character. The law presumes that the female is chaste and virtuous, and this presumption authorizes the jury to assume at the outset that the prosecutrix was chaste and virtuous. If any evidence is introduced tending to show a want of previous chaste and virtuous character, then the state is required to establish the previous chaste and virtuous character of the prosecutrix beyond a reasonable doubt.

The defendant’s witness Walker testified that he had sexual intercourse with the prosecutrix before the defendant commenced keeping company with her. She denied this statement and the jury, very properly we think, believed her, and that of course fixes the fact so far as this court is concerned.

The supplemental motion for a new trial was addressed to the sound judicial discretion of the trial court and was, we think, properly overruled, as newly discovered evidence merely tending to impeach the complaining witness by showing prior contradictory statements is no sufficient ground for granting a new trial.

An objection is urged to one of the instructions given. No authority is cited in support of this objection, and from our examination of the charge of the court our conclusion is that it was more favorable to the defendant than the law warrants, and no objection was made or exception taken thereto.

It is apparent that justice has been done, and the conviction ought not be reversed except for some plain error in the proceeding which was or might be prejudicial to the defendant. We find no such error in the record. The judgment is therefore affirmed.

■ ARMSTRONG, P. J., concurs. FURMAN, J., absent and not participating.


text:
    ORLEY SAYERS v. STATE.
    No. A-1802.
    Opinion Filed October 25, 1913.
    (135 Pac. 944.)
    1. RAPE — Sufficiency of Evidence. Evidence reviewed, and held sufficient to sustain verdict of guilty of rape in the second degree.
    2. INDICTMENT AND INFORMATION — Preliminary Examination —Waiver—Effect. Section 17, Bills of Rights, prescribes: "No-person shall be prosecuted for a felony by information without - having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”
    Held, that it is the fact that there was a preliminary examination, or waiver thereof, and a judicial determination thereon by the examining magistrate, that a felony has been committed, and that there is probable cause to believe defendant is guilty thereof, that confers jurisdiction on the district court; and where a defendant waives his right to a preliminary examination and it appears that the charge in the preliminary eomplaint is substantially the same as that charged in the information in the district court, a motion to quash for want of jurisdiction should be overruled.
    3. APPEAL — Cure of Judgment. Where, upon appeal from a conviction of the crime of statutory rape, the verdict of the jury was "guilty of rape in the second degree,” the faet that the judgment recited that the defendant was guilty of rape in the first degree was not reversible error, since the use of the word "first”' was a clerical error, and did not affect the substantial rights of defendant, and the judgment will be modified and corrected by this court so as to conform to the verdict of the jury.

      Appeal from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.

    Orley Sayers was convicted of rape, and he appeals.
    Affirmed.

      Hoffman & Foster and Rittenhouse & Rittenhouse, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Lincoln county upon an information charging the defendant with the crime of rape, alleged to have been committed on one Ivy Pearl Newman, on July 20, 1911. The verdict of the jury, rendered December 20th, omitting formal parts, is as follows:

“We, the jury impaneled and sworn to try the above cause, do upon our oaths find the defendant, Orley Sayers, guilty of rape in the second degree and assess his punishment at imprisonment in the state penitentiary for five years.”

Motions for new trial and in arrest of judgment were duly filed, and on the 12th day of March, 1912, the same were overruled, and judgment and sentence entered in accordance with the verdict of the jury.

The testimony of the prosecutrix is to the effect: That she was fourteen years of age on November 7, 1910, and lived with her parents in the town of Agra. On the evening of the day alleged, the defendant came to her home about 8 o’clock p. m. and asked her to go buggy riding, and she and Mary Mehringer, the hired girl, and Roy Scott went with him. They drove out in the country, and defendant told the other two to get out of the buggy, and they did so; defendant drove on with her some distance and stopped, and asked her to allow him to have intercourse with her. That she refused, saying she was nothing but a young schoolgirl. That finally, overcoming her resistance, he succeeded in having sexual intercourse with her.

Roy Scott testified that he was at the home of the prose-cutrix when the defendant asked the girls to go out driving, and they said they would go if witness would go with them. That they all got in the buggy and drove about .a mile northeast of town. That the defendant invited him and the other girl to get out of the buggy, and they got out. Defendant said he would be back in a short time and drove on. That he followed the buggy with Riley Sollers, and when they came up to the buggy prosecutrix asked witness to come and protect her. That defendant was trying to take advantage of her, and defendant said, “I had better go on down the road, or he would make it hot for me.” That later they returned to town together.

Earl Edgecombe testified that he was going home with Emmet Johnson, and passed prosecutrix and defendant sitting in a buggy; that they went right by without stopping; that he heard somebody crying and pleading; that they went into the cotton field and watched the buggy for about an hour; that they could not hear what was said, but heard a kind of pleading murmur.

The mother of the prosecutrix testified that she was born November 7, 1896.

On behalf of the defendant, Floyd Gibbs testified that he went with Earl Edgecombe and Emmet Johnson to watch a buggy that was standing in the road near his house; that all he heard was a murmuring of voices like an ordinary conversation ; that after watching for about 45 minutes he returned home and the buggy was standing there in the road when he left.

Riley Sollers testified that he went with Roy Scott to the buggy standing in the road near the Gibbs farm; that they went there to get defendant and Ivy Newman to go back to town; that the)’ talked with defendant about five minutes, and then returned, and shortly afterwards the defendant and Ivy Newman overtook them.

■ The defendant, as a witness in his own behalf, testified that he had lived in Lincoln county all his life. The remainder of his testimony is as follows:

“0. Did you, on the night of the 20th of July, 1911, or at any other time in Lincoln county, take Ivy Pearl Newman out on the section line by Gibbs’ house and forciby, or in any other manner, have sexual intercourse with her? A. I taken the girl out on the section line, but I did not have any intercourse. Q. Had you ever been with the girl before? A. No, sir.”

One of the reasons assigned for a new trial is the insufficiency of the evidence to -sustain the verdict.

The foregoing review of the facts suffices to show that the case was one for the jury. This court has always acted with great caution in granting new trials upon the ground that the verdict is contrary to the evidence, and it is only in a case where the evidence is plainly insufficient to warrant the verdict that this court will interfere.

The overruling of defendant’s motion to quash the information is assigned as error. The only reason urged in argument in support of the motion to- quash is that there was no proper order holding defendant to the district court. The transcript of the proceedings before the examining magistrate shows that the preliminary complaint charges the same crime as charged in the information in substantially the same language, and that d'efendant waived his preliminary examination, and thereupon it was ordered that said defendant be held to the district court in and for said county and state upon the crime charged.

It was settled by this court in Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466, that if on being brought before the examining magistrate the defendant waives his right to a preliminary examination, and it appears that the charge in the preliminary complaint is substantially the same as that charged in the information filed by the county attorney in the district court, a plea of want of a preliminary examination is unavailing. And see Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

The judgment contains the following recital:

“It is now the judgment and sentence of the court on that verdict that you are guilty as charged in the information of the charge of rape in the first degree.”

Counsel contend,'“in view of the fact that the judgment itself recites that the verdict of the jury was for rape in the second degree, that the cause must be remanded for judgment.” Obviously the use of the words “first degree,” instead of the words “second degree,” was a clerical mistake. Our Procedure Criminal provides (section 6005, Rev. Laws 1910) :

“No judgment shall be set aside or new trial granted by an appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the' opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

This clerical mistake in using the word “first” instead of “second” could not in any way affect ,the substantial rights of defendant. Our Procedure Criminal provides (section 5960, Rev. Law's 1910) :

“When judgment upon a conviction is x’endered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action. First. The indictment and a copy of the minutes of the plea or demurrer'. Second. A copy of the minutes of the trial. Third. The charges given or refused, and the indorsements, if any, thereon; and, Fourth. A copy of the judgment.”

The information, plea, minutes of the trial, verdict, charge of the court, and the judgment, taken together, furnish defendant complete protection against another prosecution for the same offense. And -while this mistake does not affect any of the substantial rights of defendant, under the power granted to this court by section 6003, Rev. Laws 1910, which provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial”

—the judgment in this case will be modified and corrected by striking out the word “first,” as above quoted, and substituting the word “second,” making the last two words of the recital quoted read, “second degree.” The charge of the court was as favorable to the defendant as he had a right to expect, or demand, and fairly presented the law of the case to the jury.

After a careful examination of the various questions raised, we are satisfied that under well-settled rules sustained and upheld by the decisions of this court, no prejudicial error was committed.

The judgment of the district court of Lincoln county, as modified and corrected, is hereby affirmed.

ARMSTRONG, P. J., concurs. FURMAN, J., absent and not participating.


text:
    M. A. CAHN v. STATE.
    No. A-1760.
    Opinion Filed October 25, 1913.
    (135 Pac. 1155.)
    1. INTOXICATING LIQUORS — Violation of Prohibitory Law — Evidence. (a) The proof of payment of the special tax required by the United States government from retail liquor dealers', together with the proof of possession of intoxicating liquors, is sufficient to sustain a conviction of one charged with having unlawful possession of such liquor, with intent to sell the same.
    (b) A certified copy of the receipt issued by the United States Internal Revenue Collector for money paid to him for special revenue tax required of retail liquor dealers is entitled to be admitted in evidence without further identification.
    (e) When the county attorney desires to introduce a witness to testify that he has compared a copy of any document with the record, the name of such witness should be indorsed upon the information just as the name of any other witness, as is required by law. The court should not permit such witness to testify unless this is done, in the absence of a proper showing.
    (d) When the record discloses the fact that the court has improperly permitted a witness to testify to facts which are conclusively proved by documentary evidence, although it is error, this court will not reverse a judgment when it is clear that no injustice resulted therefrom.
    2. INDICTMENT — Indorsement of Witnesses’ Names. When, during the progress of a trial, an important witness is discovered for the first time by counsel for the state, and a conclusive showing is made that there has been no dereliction by the county attorney, and no effort upon his part to conceal the testimony of the witness, the court may, in its discretion, allow the name of such witness to be indorsed on the information, and permit him to testify. In such a case counsel for the accused are entitled to a reasonable time, on proper showing, to secure testimony to meet that given by such witness.'

      Appeal from County Court, Oklahoma County; John W. Hayson, Judge.

    M. A. Cahn was convicted of violating the prohibitory law, and. brings error.
    Affirmed.

      Jennings & Levy, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, M. A. Cahn, was convicted at the January, 1912, term of the county court of Oklahoma county on a charge of 'having the unlawful possession of intoxicating liquor in said county, with intent to sell the same, and his punishment fixed at a fine of $400 and imprisonment in the county jail for a period of 60 days. The appeal is brought by him in an attempt to secure a reversal of this judgment.

The proof on behalf of the state tends to show that a raid was made on a certain place of business at 120 West Grand avenue in Oklahoma City in September, 1911; that a considerable quantity of intoxicating liquors was found in a vault on the premises; that whisky glasses were at hand, and bottles of whisky and beer in a tub of ice; that the plaintiff in error came into the place while the raid was on, accompanied by some fifteen or twenty others; that he spoke to one of the officers about what they were doing, and by what authority they were molesting the place, and was told that they were acting under a search warrant, which they would deliver >to' the proprietor if demanded; plaintiff in error immediately held a conversation with some person, who one of the witnesses says was an attorney named Davidson; that Davidson immediately walked over to the officers, and asked for the search warrant, saying that he was representing the proprietor as attorney. A copy of the warrant was delivered to him. One witness, Sam Kyle, testified that he had been convicted of selling whisky at this same place; that plaintiff in error employed counsel for him, and told him he would be taken care of. Another witness testified that he rented a portion of the room from the accused. Other witnesses testified that the accused had attempted to rent the building from the agent of the owner for the purpose of running a bootlegging joint, and was refused a rental contract, because he held a government license, and intended to engage in the unlawful sale of liquor in the house. It was also shown that sbme person by the name of Butler had rented the house, and that Butler and the accused held conferences daily; that the accused was frequently at the place. In addition, it is shown that the accused had paid the special internal revenue tax to the United States government, which authorized him, so far as the United States is concerned, to sell intoxicating liquor at this place. These material facts are established by the state beyond controversy, and there is practically no credible effort to contradict them on behalf of plaintiff in error. He contradicts no portion thereof himself.

Counsel have filed an elaborate brief, in which they have argued with much earnestness a number of assignments. They first urge that the court erred in permitting James S. Powers to testify, because his name was not indorsed on the back of the information. That the court did err in permitting the witness to testify concerning an investigation of the records of the Internal Revenue Collector, there can be no doubt; but, in the light of all the facts in the record, this judgment should not be reversed on account of that error! A certified copy of the receipt showing payment of the internal revenue tax was introduced in evidence. The testimony of Powers' was absolutely unnecessary. If the certified copy of the receipt had not been introduced, this case would have to be reversed, and it is a practice which the court should not permit in the future. The witnesses’ names should be on the back of the information if they are to be used, except in rare cases. It is the county attorney’s duty to see that that is done, and it is the court’s duty to refuse to let them testify, unless the law is complied with. This question has been thoroughly covered by this court in a number of cases. It was not necessary that Powers should go on the stand in order that a certified copy of the receipt showing payment of the special revenue tax could be introduced, and. it is on the ground that this receipt was itself sufficient that this assignment of error is not'sustained. « .

The only other assignment we care to consider is based on the contention that the court erred in permitting the county attorney to indorse on the information the name of witness James Van Tress after the trial had been begun. It is clearly shown that the witness Van Tress was not discovered until the noon recess of the court after the case had been put on trial. The assistant county attorney made a clear showing that he was entitled to have the testimony of this witness. The court did not err in permitting his name to be indorsed, and allowing him to testify. If counsel had asked for a continuance for the purpose of securing evidence to meet that of this witness, it would have been the duty of the court to grant it; hut no such request was made. If the record disclosed facts which indicated that' the county attorney had acted unfairly, and was purposely holdr-ing back information relative to the witness, then a reversal would be warranted; but in our judgment he did not do so, and the action of the court was correct on the facts disclosed. We have gone over this entire record, and, while some irregularities are disclosed, we find nothing which warrants us in interfering with the judgment of the trial court.

It is therefore in all things affirmed.

DOYLE, J., conurs. FURMAN, J., absent and not participating.


text:
    D. M. BLUNK v. STATE.
    No. A-1800.
    Opinion Filed October 25, 1913.
    (135 Pac. 946.)
    1. INTOXICATINCf LIQUORS — Prosecution—Evidence—Records of Internal Revenue Collector. A duly certified copy of the records of the office of Collector of Internal Revenue is admissible in proof of the payment by the defendant of the special tax required of liquor dealers by the United States.

      2. SAME — Conviction Sustained. The evidence upon the trial of an information charging that the defendant did have possession of intoxicating liquors with the intention of violating provisions of the prohibition enforcement act reviewed, and held sufficient to sustain the verdict and judgment.

      Appeal from County Court„ Oklahoma County; John W. Hayson, Judge.

    D. M. Blunk was convicted of violating the prohibition law, and appeals.
    Affirmed.

      Giddings & Giddings and J. T. Dortch, for plaintiff in error.

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

This is an appeal from a judgment of conviction upon an information charging the defendant with the crime of having intoxicating liquors in his possession unlawfully with the intent and purpose on the part of the said defendant to sell, barter, give away, and otherwise furnish. On the 14th of May, 1912, the court sentenced the defendant in accordance with the verdict of the jury to be confined in the county jail for a term of 60 days and that he pay a fine of $250 and the costs, and in default in the payment of the fine the defendant to stand further committed to said county jail until said fine is satisfied according to law.

Evidence was admitted on behalf of the state showing the certified copy of the records of Collector of Internal Revenue, district of Oklahoma; as follows;

“Name, Groves Liquor Co., D. M. Blunk, R. R. Grover. Business, retail liquor dealer. Place, Oklahoma, Okla. From what time, July, 1911. Amount of tax, $25. Date of payment or issue of certificate, July 5, 1911. Serial No. of stamp, 186027. Serial No. of certificate, 144. Street and number, 101 W. Reno. Transferred to 9J4 S. Rob. St. 4 — 16—12. Transferred to 7 South Santa Fe street 9 — 14—11.

“Name, Groves Liquor Co., D. M. Blunk, R. R. Grover. Business, wholesale liquor dealer. Place, Oklahoma, Okla. From what time, July, 1911. Amount of tax, $100. Date of payment' or issue of certificate, July 5, 1911. Serial No. of stamp, 1882. Serial No. of certificate, 145. Street and number, 101 W. Reno. Transferred to 9J4 S. Rob. St. 4 — 16—12. Transferred to 7 S. Santa Fe St. 9 — 14—11.

“Collector's Office, Oklahoma, Okla.

“I, George T. Knott, the undersigned, do hereby certify that I am the Collector of Internal Revenue for the district of Oklahoma, and the custodian of an alphabetical list of special taxpayers in said district of Oklahoma, such list being, contained in Record No. 10 of my office for the district of Oklahoma, and I do hereby certify that the above and foregoing is a true and correct copy of all the names and entries as they appear and are on said Record No. 10 for the district of Oklahoma. In witness whereof, I have hereunto set my hand and official seal, this 17th day of April, 1912, at the office of the Collector of Internal Revenue for the district of Oklahoma at Oklahoma, Oklahoma. Geo. T. Knott, Collector Internal Revenue, District of Oklahoma.”

The defendant objected to this for the reason that it was not the best evidence, because it was hearsay, and for the further reason that no testimony had been introduced by the state showing that the defendant was a member of the Groves Diquor Company. This court has time and again held that a certified copy of the records of the office of Collector of Internal Revenue is admissible in proof of the payment of the special tax required of liquor dealers by the United States.

The next assignment of error is that the court erred in permitting witness R. S. Roberts to testify, despite the objection of the defendant, to a conversation between one Cannon and Owens. This witness testified that he saw the defendant at No. 2 West Grand avenue on the 22d day of February, 1912, behind a cigar case. Witness was driving east on Grand avenue and saw Vic Owens with a barrel of beer on his wagon. Owens started to whip up and run around the corner of Santa Fe street and turn south and then he turned into the alley and stopped back of No. 2 West Grand avenue. Witness followed and stopped at the same place. Cannon, who was with witness, jumped over the fence and witness followed and found Owens and another boy with a barrel of beer in the pool hall; the defendant was in hearing distance and Cannon and Owens were talking about an ordinary tone of voice. Further the evidence is: ’

“Well, you may state what was said? I said, ‘Well, you have got it’; and Mr. Owens said that we would have to have a search warrant to get it out of the house; and I said, ‘Very well, we will go and get one,’ and told Cannon to go down to Maupin’s court and get a search warrant, and that I would stay there and watch it. And Mr. Blunlc then come back and said, Vs that all you want, that beer?’ and I said, ‘Yes.’ Then he said, ‘Well, we will not have any argument about that, you may have it.’ I got scared, for I had left my horse without hitching or throwing the weight out, and I went out of the house to see about my horse and see that it had not run off, and I went •out at the front door, and when I came back both the front door and rear doors were locked.”

Obviously there is no merit in the objection urged to the admissibility of this testimony.

Finally, it is insisted that the evidence is insufficient to sustain the judgment. There cannot be any serious ground for this claim. The questions in the case were for the jury, and we think the verdict is well supported by the evidence.

The judgment is therefore affirmed.

ARMSTRONG, P. J., concurs. FURMAN, J., absent, and not participating.


author: DOYKE, J.

text:
    ERNEST KEY v. STATE.
    No. A-1673.
    Opinion Filed October 25, 1913.
    (135 Pac. 950.)
    1. APPEAL — Discretionary Ruling. A motion for continuance, on the ground of absent witnesses, is addressed to the discretion of the trial court, and its decision will not be disturbed, unless an abuse of discretion appears.
    2. WITNESSES — Cross-Examination, of Accused — Other Crimes. The prosecution in a criminal case has the right to ask the defendant, when he takes-the .witness stand in his own behalf, whether or not he has been convicted of a particular crime, for the purpose of affecting his credibility.

      3. CONTINUANCE — Motion for Continuance — Sufficiency. A motion for a continuance in a criminal case was insufficient, where it did not allege that the absent witnesses, had not left the state with defendant's consent or procurement, nor state facts showing-any probability that they would ever be within the court’s jurisdiction, nor state when defendant learned that they had left the state.

      Appeal from District Court, Carter County; S. H. Russell, Judge.

    Ernest Key was convicted of assault with intent to do bodily harm, and appeals.
    Affirmed.

      Champion & Champion, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYKE, J.

This appeal is prosecuted from a conviction had in the district court of Carter county upon an information charging the defendant with the crime of assault with intent to kill, alleged to have been committed in said county on or about the 19th day of March, 1911. The verdict was guilty of assault with intent to do bodily harm, leaving the punishment to be fixed by the court.

On the 4th day of October, 1911, the court pronounced judgment and sentenced the defendant to be imprisoned in the state reformatory at Granite for a period of 18 months. To reverse the judgment an appeal was perfected by filing in this court April 1, 1912, a petition in error with case-made.

The evidence tends to show that on the 19th day of March, 1911, the defendant and Will Rose spent a considerable portion of the evening at a bawdyhouse conducted by Nell Jester on the outskirts of Ardmore. The defendant had gone there early in the evening and became boisterous and offensive to Nell Jester; he was ordered to refrain from drinking on her porch; he told her he would kick the door in if it was not opened; and he carried out his threat by kicking the door open. Nell Jester called the police; the defendant was arrested and taken to town by an officer. About 9 :30 p. m. he was released upon his promise that he would go to his home and not go back to Nell Jester’s; however, he went back to Nell Jester’s and said to her, “Are you going to withdraw that complaint you made against me to-night?” She answered, “No;” and he assaulted her. Less Sigler, a constable, told the defendant he ought not to do that and caught him by the arm. Will Rose, the complaining witness, went back to where Nell Jester, the defendant, and Sigler were and said, “I would not jump on a woman; come on let us go to town.” The defendant applied to Rose some epithets and suggested that perhaps Rose desired to take the part of the woman. Rose divested himself -of his coat and entered the affray. Defendant and Rose continued the exchange of words and blows until the officer could •separate them; two of the defendant’s friends taking charge of him. The officer stood between the defendant and Rose after stopping the affray, and the defendant ran around the officer •and stuck a knife into Rose’s left side. Rose was taken in a cab to a doctor’s office, where the wound was dressed. The defendant resisted arrest and ran out the back door. He was arrested, however, by other officers about 50 yards from the bawdyhouse.

The defendant, as a witness in his own behalf, did not deny the stabbing, but claimed that he stabbed Rose during the difficulty and prior to the arrest in self-defense; that he cut Rose because Rose was beating him over the head.

The foregoing is a brief statement of the circumstances of the commission of the crime. The errors assigned will be considered in the order presented.

First. It is contended that the court erred in overruling the defendant’s motion for a continuance. The motion was filed after the case was called for trial, and it is therein stated that affiant had caused subpoenas to issue for Bonnie Roberts and Ollie Cody; that the sheriff’s return shows that the same were duly served; that said witnesses, if present, would testify that Will Rose struck the defendant with his fist and Nell Jester struck the defendant with a bunch of keys; that at the time the defendant had not made any statement or said anything to Will Rose nor made any effort to do him any injury; that they hemmed him in a corner and the defendant asked the bystanders to stop the fight; that he did not want to hurt anybody; that Will Rose continued to strike and hit him, and the defendant then drew his knife and struck Rose one time in the side; that this ended the difficulty; and that he is informed and believes that said witnesses have left the state of Oklahoma and that one of them, is now in Wichita Ralls, Texas, and the other in San Antonio, Tex.

There are several reasons why the court did not err in overruling this motion for a continuance. It is insufficient in that it does not allege that said witnesses did not leave with his consent or procurement, nor does it allege any facts showing any probability that the witnesses would ever be within the jurisdiction of the court. It does not allege when the defendant learned that said witnesses had left the state. We think the motion lacks evidence of good faith and does not show due diligence and was therefore properly overruled.

The defendant, as a witness in his own behalf, was asked on cross-examination:

“Q. You are the same man who struck an Indian down here and he died from the blow, and you pleaded guilty in this court to manslaughter in the second degree? Mr. Champion: We object. The Court: Let him answer. A. Yes, sir.”

Counsel argue:

“That a witness may be asked as to a former conviction for a felony, but the court should not have permitted the circumstances of the former charge against this defendant to have been brought before the jury.”

Our statute provides (section 5046, Rev. Laws 1910) that a witness may be discredited by showing his conviction of a criminal offense. The defendant had elected to testify as a witness in his own behalf, and, having done so, the county attorney had á right to ask him on cross-examination any question pertaining to the matter at issue or that would go to his credibility as a witness. See White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Cowan v. State, 5 Okla. Cr. 313, 114 Pac. 627.

Various criticisms are also made upon the charge of the court, but no exceptions were taken to the instructions at the time they were given. In fact, the record shows that the defendant’s counsel said at the time, “We have no suggestions to make.” Upon a careful consideration of the record, there seems to be no reason to doubt that the verdict of the jury in this case was entirely in harmony with the interests of justice.

Finding no prejudicial error, the judgment of the lower court is affirmed.

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


text:
    JACK HARRISON v. STATE.
    No. A-1804.
    Opinion Filed October 30, 1913.
    (135 Pac. 948.)
    1. APPEAL — Review—Discretion of Trial Court, (a) An application for continuance is addressed to the sound discretion of the trial court, and'in the exercise of this discretion it must affirmatively appear that an abuse thereof occurred before this court will interfere with the ruling of the lower court.
    (b) When an application for continuance is made by a person on trial and overruled by the court, all the facts and circumstances disclosed by the evidence adduced at the trial will be considered by this court in determining whether or not the exercise of discretion by such court was abused in denying the application.
    2. SAME — Questions of Fact — New Trial, (a) When the evidence disclosed by the record tends reasonably to support the verdict of the jury, such verdict will not be disturbed by this court on appeal.
    (b) A motion for new trial, based on an allegation that . the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot bo written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only, on the proposition that as a matter of law the verdict is contrary to the evidence.
    Under this rule, see opinion for facts upon which the verdict in this ease is based, and upon a review of which we cannot say as a matter of law the verdict is contrary to the evidence.

      Appeal from District Court, Beckham County; G. A. Brown, Judge.

      Jack Harrison was convicted of larceny, and appeals.
    Affirmed.

      Minton & Bingham, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error. Jack Harrison, was convicted at the February, 1912, term of the district court of Beckham county, on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for a period of one year and six months. To reverse this judgment he has brought this appeal.

Only two questions are properly raised by the record and brief on behalf of plaintiff in -error. The facts developed at the trial control the disposition of both.

Marshall Anderson was the complaining witness, and on behalf of the state testified that he lived at Texola; that on the night of March 30, 1911, he lost 174 pounds of bacon worth from 16 to 18 cents per pound; that the bacon was taken from a box in his barn where he had packed it away in wheat bran; that on the morning after the bacon was stolen he discovered the loss and upon investigation found that a two-horse hack had pulled out of the main road near the section line and stopped at his barn; that he followed the tracks of the vehicle to a place in Texola, where it was afterwards proven the hack of the plaintiff in error had been standing. There had been a rain a short time before, and the tracks were plain. Witness further testified that he reported his loss to the deputy sheriff at Texola, and after some preliminary examinations a- search warrant was sworn out, and the deputy sheriff, Mr. Earnest, and Mr. Woolsey, Mr. Loftis, and the witness made a thorough investigation and found that the horse tracks near the barn of the complaining witness' compared with the tracks at the place where the team of plaintiff in error bad been standing in the town of Texola; that these parties then went to the home of plaintiff in error and found his hack swept out clean; that on the ground in the rear of the hack was wheat bran containing salt and grease and an odor of bacon; that about 500 or 600 yards from the house they found the plaintiff in error in a ravine, apparently hiding; that near where he was found the lost meat was also found in some tow sacks covered over by dirt; the meat was positively identified by the complaining witness as his. Witness further testified that he gave no one .permission to take it away; that it was taken away without his knowledge or consent and against his will.

Witness Woolsey corroborated the major part of the testimony of complaining witness, and in addition testified that plaintiff in error was at his store about 8 o’clock on the evening of the theft and wanted to buy certain groceries on time; that witness would not sell them to him. He also testified that the meat was worth about 15 or 16 cents a pound, and that the plaintiff in error was wearing a pair of leather boots when at his place.

Witness Martin Loftis corroborated the testimony of Wool-sey, except he did not testify as tO' the value of the meat in question or what the plaintiff in error was wearing.

On behalf of the defense, the plaintiff in error himself testified that he was in the town of Texola on the 30th of March; that his son Lon was with him; that they left Texola about 8 o’clock at night; that he wore rubber boots at the time; that he knows where complaining witness Anderson lives, but was never on Anderson’s premises; that he did not take the meat in question, and did not have anything to do with it; that it was not on his quarter section of land when found, but admitted that it was in a pasture used by him; that he did not take any meat home with him on .the night of the 30th of March; that he had some groceries and a barrel of queens-ware in his hack; that Tom Stewart and John Esty met him above half a mile from his home; that his sons Lon and Verge helped him unload his groceries, etc., from the hack. He admitted on cross-examination that his hack stood near the old Armfield saloon building in Texola, where the state contended it had been. He testified at first that he only carried one sack of flour home, and later that he had two sacks, one of which he got at Texola and the other at Beninine; that he got home about 9 or 10 o’clock; that he left Texola about 8 o’clock; that he lived eight or nine miles from Texola. On further cross-examination he testified that Tom Stacey came down and helped him unload his hack and that John Esty stayed all night with him; that J. H. Brady was also at his house that night.

Lon Harrison, son of the plaintiff in error, testified that he was in Texola with his father on the 30th of March; that they left town about 9 o’clock; that his father on that day wore rubber boots; that he was with his father all day and during the night after they left town; that his father did not go to Marshall Anderson’s place on that date; that they carried home with them, among other things, two sacks of flour, both of which they got at Butler’s in Texola; that they did not get any at Beninine.

Bert Harrison, another son of the plaintiff in error, testified that on the 30th of March he was at the home of Tom Stewárt; that he went home at night; that John Esty, Tom Stewart, and J. H. Brady were there; that his father got home about 10 o’clock in the hack, and had certain groceries and glassware with him; that there was no meat in the hack; that no meat was carried from their house that night into the ravine; that his father on that date was -wearing rubber boots. He testified that Stacey stayed all night; that Esty did not.

Witness Crawford testified for the plaintiff in error that he was at complaining witness Anderson’s place four or five days after the alleged theft; that he had a conversation with Anderson, who showed him the tracks where the hack and team had stopped; that he saw some horse and mule tracks, which were pointed out by Anderson; that he looked for bran in Harrison’s yard and did not see any.

Other witnesses testified on behalf of the plaintiff in error that dry salt meat was worth- from 11 to 12 cents a pound ; that the meat in question was probably better than the meat they could buy for that money.

Plaintiff in error, Harrison, being recalled, testified that he was down in the ravine looking for his horses and cows when the officer and searching party found him; that he had tried to drive his stock up and had set down to rest.

Witness O. D. Earnest, on behalf of the state, testified that on the evening of the theft he saw the plaintiff in error and his boy in a buggy or hack about a mile south of Texola; that at that time plaintiff in error had on a pair of leather boots; that he examined the tracks the horses made at the barn of the complaining witness; and that there were no mule tracks among them.

When the case was called for trial, the plaintiff in error filed a motion for continuance, which is as follows:

“Jack Harrison, being first duly sworn, says that he is the '^defendant in the above-entitled cause; that he is unable to pro•ceed to trial of this cause at this time for want of material •evidence, to wit, the evidence .of one Tom Stewart, who is- a material witness in this cause, and defendant has used due diligence to obtain his evidence. That said witness was duly subpoenaed -to be present at this trial in this court, but that the father of the said Tom Stewart is now at the point of death, very dangerous, and on yesterday afternoon the said Tom Stewart phoned this defendant’s attorney, J. A. Minton, that it would be impossible for him, the said Tom Stewart, to be present this term of the district court of Beckham county. That the said Tom Stewart refuses to leave the bedside of his sick father. That the said Tom Stewart would, if present, testify in said cause as follows: That he (Tom Stewart) on the night on which this defendant was accused of stealing the meat in question, was at the home of this defendant, and had started home and met this defendant, and that he, the said Tom Stewart, got in the wagon of this defendant and rode in said wagon to the home of this defendant, a distance of some 400 yards, and that the said Tom Stewart helped this defendant unload the said wagon, and that there was no meat in or about the said wagon, and that he, the said Tom Stewart, did not that night see any meat, and that he would have seen same if there had been meat in the wagon. That said evidence is material, and that the same is true. That said evidence cannot be had at this term of the district court, except by the son of this defendant, which said evidence coming from defendant’s son would not benefit this defendant so much as the evidence of said absent witness. That said absent witness resides in Beckham county and can be had at the next regular term of the district court in Beckham county. That this application for continuance is not made for delay, but that substantial justice may be done, and he asks that this cause be continued until the next regular term of the district court.”

The first assignment of error argued by counsel is that the court erred in overruling this motion for continuance. With this contention we cannot agree. The question has been too often passed upon by this court to require a discussion at this time. It may be observed, however, that there were two other witnesses who were at the home of the plaintiff in error at the same time Stewart was there, neither of whom was produced at the trial and nothing shown to indicate why they were not called. The trial court was probably of opinion that the'motion for continuance grew out of a desire for delay rather than for evidence.

The other assignment is based on the contention that the verdict is contrary to the evidence. The case of the state is based wholly on circumstantial evidence. The plaintiff in error and his sons testified that he did not commit the crime. The cause was submitted to the jury by the following instruction, which is a clear enunciation of the law:

“In this case the state relies for a conviction upon circumstantial evidence, and you are instructed that, to warrant a conviction on circumstantial evidence, each fact necessary to establish the guilt of the defendant must be proven by the evidence beyond a reasonable doubt; all the facts and circumstances relied upon must be consistent with each other, and, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion that the accused, or he had others acting with' him, committed the offense charged. The mere union of any number of circumstafices, each of an imperfect and inconclusive character, will not justify a conviction. They must be such that when taken together they generate and justify belief, beyond a reasonable doubt, of the guilt of the defendant. It is not enough that they coincide with each other and render probable his guilt, but they must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, and the facts and circumstances relied on must be incompatible with the innocence of the defendant, and incapable of explanation upon any other reasonable hypothesis than that of his guilt; otherwise the defendant must be acquitted.”

The rule is well settled in this jurisdiction that, when the evidence tends reasonably to support the finding of the jury, their verdict will not be disturbed by this court. The circumstances introduced in evidence by the state, together with the testimony on behalf of the plaintiff in error, were all before the jury. The witnesses appeared in person before them, and, while we have seen stronger cases of circumstantial evidence in which verdicts of guilty were -not returned, yet it is clear to our minds that the jury in this case made no mistake. The unsatisfactory testimony produced by the plaintiff in error, contradicted as it was by his own witnesses and by the witnesses for the state, strongly corroborate the contention that he is guilty of the larceny charged.

We have carefully reviewed the record and find no error sufficient to justify a reversal. The record presents no other questions that we are called upon to determine.

The judgment of the trial court is therefore affirmed.

DOYLE and FURMAN, JJ-, concur.