text:
    FRED NELSON v. STATE.
    No. A-5260.
    Opinion Filed May 6, 1926.
    (245 Pac. 1009.)

      Crump & Seawel and Matson & Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Fred Nelson, was tried on a plea of not guilty to an information, of which the charging part was as follows:

“That on or about the 5th day of October, 1923, in said county and state, the defendants Fred Nelson and Bethney Taylor, acting together, did then and there intentionally, wrongfully, and feloniously shoot one Bob Cooper, with a certain firearm, to wit, a .45 Colt’s automatic pistol, with intent then and there and thereby to kill him, the said Bob Cooper, contrary to,” etc.

On his separate trial the jury returned a verdict finding “the defendant Fred Nelson guilty of assault with a dangerous weapon, as charged in the information herein, and fix the punishment therefor at imprisonment in the state penitentiary for three years.” To reverse the judgment rendered on the verdict he appeals. The appellant challenges the sufficiency of the verdict to sustain the judgment and sentence, in that it is too indefinite and uncertain by failing to name the offense.

The information charges the offense of shooting another with intent to kill under Penal Code (section 1756, C. S. 1921), and the instructions of the court submitted also the included offense of shooting another with intent to do bodily harm, and without intent to kill, as defined by second clause of section 1764. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739, cited by counsel, is not in point, because in that case the jury failed to fix the punishment.

It is the well-settled doctrine that, where the jury is required by statute to fix the degree of the crime of which the defendant is guilty, a verdict which does not expressly state the degree is sufficiently definite and certain as to the degree of which the defendant was convicted, if the assessment of punishment' clearly indicates such degree. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824.

This court in Coleman v. State, 16 Okla. Cr. 579, 194 P. 282, held that a verdict defective in form, but which expresses the intention and purpose of the jury, should have been objected to when returned, and thereby the attention of the court called to its defective form and an opportunity thus given for its correction. Section 2743, C. S. 1921.

And in Stansell v. State, 30 Okla. Cr. 265, 235 P. 937, we held that—

“Where, from an examination of the verdict and the entire record, the intent and purpose of the jury as expressed in their verdict, may be clearly ascertained, it will be upheld.”

While the verdict in this case is technically informal, we think it is sufficiently definite and certain as to the offense for which defendant was convicted, and it is in effect a verdict of guilty of assault by shooting with a pistol without intent to kill, but with intent to do bodily harm. In our opinion the defect is not sufficient to affect the substantial rights of defendant, and he, having failed to object to the verdict when returned, waived any defect in the form of the same. Pruitt v. State, 17 Okla. Cr. 434, 190 P. 894.

This brings us to the merits of the appeal. It is contended that the verdict is not sustained by sufficient evidence, and that it is contrary to law.

H. J. Enders testified that he saw Fred Nelson trying to get into his house, where Mrs. Taylor lived, and that Mrs. Taylor did not want to let him in; that he went around the house, and then three shots were fired; that he called the police; that a few minutes later the officers came, but that he did not hear any more shooting.

The complaining witness, Cooper, testified that he was assistant chief of police of Hominy. That in response to a telephone call he went to the home of Bethney Taylor. That Mr. Le Master, merchant police, was with him. That Le Master first went to the door and knocked and called, “Nelson,” and then he knocked on the door and called several times, and there was no response. Then he took hold of the screen door, which was fastened by a wire or something, and it came loose. Then he walked in on the porch, and knocked on the hovise door, and called to Nelson to open the door. That he could see through a window east of the door, and saw Nelson coming out of the east room into the room where the door was, and he was coming towards him. That Nelson walked up to the window, and began firing-through the window at him, firing four shots, one of which struck him on the right forearm. That he left Le Master at the house, and went to a phone, and called the chief of police. That the door and window were on the south side of the house, which sits on the rear of the lot next to the alley with a large house on the front of the lot.

On cross-examination he was asked:

“Q. What did you do to Nelson, when you arrested him? (State’s objection sustained.)’’

The jury was excused, and counsel for defendant made the following offer of proof:

“The defendant offers to show by the witness Cooper that, at the time of the arrest of defendant, witness assaulted defendant, Nelson, with a revolver, and beat him over the head, and cursed him, and said he ought to kill him.” (The state’s objection again sustained.)

Tom Le Master testified that he held a special police commission, and was with Mr. Cooper at the Taylor home; that he heard no noise in the house until the shooting began; that four shots were fired; that he could not see who did the shooting.

C. E. Carnegie, chief of police, testified that he arrived there about 1:30, and told Bob Cooper to call Bill Nelson, Fred’s brother, and Bill Nelson went to the door and called Fred, and he opened the door and they arrested the defendants; that the door opened in from a screened-in porch.

The state rested, and the defendant moved for a directed verdict, which was overruled.

For the defense, Mrs. A. W. Worthington testified that she lived 15 feet back of Mrs. Taylor’s; that she heard the four shots at the Taylor home, and heard no other disturbance there of any kind. Her husband’s testimony was substantially the same.

Clarence Parmelee testified that he lived with the Worthingtons, and a minute or two before the shooting heard some one tear the screen door open.

Clarence Cope testified that he was a brother of Mrs. Taylor, and lived in the adjoining house; that he heard no disturbance other than the four shots in question; that defendant, Nelson, went home with him to stay all night, and they reached home about 11:30; that Mrs. Taylor was on the porch, and called to Nelson, and he went into the house with her.

Several witnesses residing in the immediate neighborhood testified that no disturbance occurred there until, after the officers arrived.

Mrs. Taylor, codefendant, called as a witness, was advised by the court as to her constitutional right against self-incrimination, and refused to claim exemption from testifying. She testified that her brother, Clarence, and defendant, Nelson, drove up to her house, and she called defendant in to see him about a car; that her adopted nine year old girl was also there; that she heard the screen door to the screened-in porch slam like it was jerked open. Then some one tried to raise the window. That she thought she was going to be robbed, or done bodily harm, and picked up a pistol, and fired four shots through the window; that, when she started into the room with the pistol, defendant said, “Don’t do that.” That defendant did not fire any shots or have anything to do with the firing of the shots. That defendant had caused no disturbance there, and that she had never heard him utter an oath, and that for about four months they were engaged to be married.

As a witness in his own behalf, Fred Nelson testified that he had been at the home of Mrs. Taylor probably 30 minutes; that he had gone there with her brother, Clarence. That after he had been there a while, they heard a noise tike some one breaking in. Mrs. Taylor picked up a gun, and he said to her, “Don’t do that.” That he did not fire any shots, and did not advise or encourage any shooting. That he had no revolver or weapon of any kind. That after he was arrested Cooper grabbed him by the collar, and hit him with his gun, and started beating him, and his brother, Will Nelson, stopped Cooler. That they then started on for the jail, and Cooper said, “You was trying to kill somebody, wasn’t you?” and he said, “I was not, I did not shoot,” and Cooper said, “You know you are lying; you know you done this shooting,” and he said, “I didn’t; you know she did the shooting,” and Cooper said, “I wish she was a man, I would beat her to death.”

Austin Blair testified that the next day after the shooting, near the First State Bank, he heard Bob Cooper state that he had been trying to get Fred Nelson for a long time, and now he had him.

Error is also assigned on the exclusion of evidence of threats against his codefendant, and evidence of the communication of such threats to said codefendant.

The record shows that the court sustained the state’s objections to the following questions asked of the witness William G. Nelson:

“Q. Did you hear any person make any statement relative to the security of Bethney Taylor in her person or in her home prior to the occasion of the shooting of Bob Cooper?
“Q. If you heard any such statement, did you thereafter communicate it to Bethney Taylor?
“Q. If you did communicate such information to Bethney Taylor, was it prior to the shooting of Bob Cooper?
“Q. State who, if anybody, made any statements to you prior to the shooting of Bob Cooper with reference to the security of Bethney Taylor, either in her person or in her home?”

The court directed the jury to retire, and the following offer of proof was made:

“That Randy Wren and John Morgan and the women that work at the White Star Cleaning establishment told the witness that it was the purpose of the women of the town of Hominy to see that Bethney Taylor was carried from her home and administered a whipping, and that thereafter the witness communicated these statements to Bethney Taylor.”

The offer is denied, and defendant excepts.

We think that the evidence offered was competent and admissible, and that its exclusion by the court constitutes reversible error.

Our Penal Code provides:

“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:
“First. * * *
“Second. * * *
“Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or. personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offence.” Section 1762, C. S. 121.

Says Clark:

“A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony or of Inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable. The doctrine, however, does not justify a homicide merely to prevent a trespass upon the habitation, when it is evident that there is no intention to commit a felony or to inflict great bodily harm upon an inmate. Of course, in defending his habitation, a man must act upon appearances, and if he acts in the bona fide and reasonable belief that the assailant intends a felony or great bodily harm to an inmate, and kills him to prevent his entry, the homicide is not criminal, though he was mistaken as to the assailant’s intention.” The Law of Crimes, Clark & Marshall (2d Ed.) 409.

Says Wharton:

“An attack on a house or its inmates may be resisted by taking life. * * * (3) Aside from these two grounds, which may be also regarded as included in the right of prevention of felonies, the occupant of. a house has a right to resist, even to the death, the entrance of persons attempting to force themselves into it against his will, when no action less than killing is sufficient to defend the house from entrance; and even the killing of an officer of the law, known to be such, endeavoring thus to intrude, is not murder, but manslaughter. A man’s house, however humble, is his castle; and his castle he is entitled to protect against invasion. The rule is to be traced to old times when the peace of the body politic, as well as of individuals, depended upon the maintenance of the inviolability of houses as castles. And the rule continues to exist when there is an equal reason for the maintenance of the inviolability of houses as homes.” 1 Wharton, €rim. Law (10th Ed.) par. 503.

See, also, 1 Bishop’s New Cr. Law, §858.

In Armstrong v. State, 11 Okla. Cr. 159, 143 P. 870, we said:

“A man in his own habitation may resist force with force, and repel the entrance against his will of one who in a violent manner attempts to enter for the manifest purpose of assaulting or offering violence to him or to inmates under his protecting care, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent such unlawful entrance.”

And see Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375.

The record shows that, when Mrs. Taylor, codefendant, was on the stand, the state’s objections to the following questions were sustained:

“Q. Did you apprehend that you were about to be robbed or suffer great personal violence?
“Q. What did you think the party that had torn open the screen and opened the window was going to do, Mrs. Taylor?"
“The Court: If she were on trial, it would be admissible, but I don’t think it is so far as the defendant is concerned in this case. Objection will be sustained. (Exception.)”

The following offer of proof was made:

“We offer to show by the witness that at the time of tearing open of the screen and the opening of the window it caused her to apprehend that she was about to be robbed or sustain great personal injury. (Objection sustained.)"

The evidence excluded was competent and admissible for the purpose of showing, or tending to show, that his codefendant had reasonable ground of apprehension of imminent personal danger, and, assuming that her testimony was true, the shooting was justifiable in defense of her person, and that she did not use more force than was necessary to prevent an unlawful trespass and attempt to break into her home; therefore the exclusion of the same must have necessarily operated to deprive defendant of a fair determination regarding his guilt or innocence.

The next assignment is based u,pon the failure of the trial court to give an affirmative instruction on the theory of the defense that Mrs. Bethney Taylor, and not this defendant, did the shooting. The instructions given by the court only covered the testimony on the part of the state.

In Courtney v. State, 10 Okla. Cr. 589, 140 P. 163, we held:

“The accused, in a criminal case, is entitled to instructions' defining the law., applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate such theory.”

In Collegenia v. State, supra, this court also held:

“In the prosecution for murder, the court should instruct upon the law applicable to the case, whether requested to do so or not. The law applicable is determined by the accusation and the evidence introduced upon the trial, and, when the evidence tends to show justification in self-defense and in defense of habitation it is the duty of the court to submit instructions properly embracing the law of self-defense.”

According to the testimony of the prosecuting witness, defendant, Fred Nelson, fired the shots, and Bethney Taylor had nothing to do with it. According to the testimony of Bethney Taylor, she fired all the shots, and Fred Nelson not only did not fire a shot, but told her, “Don’t do that.” Defendant, Nelson, testified to the same effect, as did Bethney Taylor. Failure to instruct covering the defense interposed no doubt led the jury to believe that, even if Mrs. Bethney Taylor did fire the shots, that would not relieve this defendant of criminality, when the evidence showed that he was present at the tim e the shooting occurred.

This was not a planned assault. It occurred on a sudden impulse, and there was no testimony tending to show .a conspiracy or concert of action.

In Moore v. State, 4 Okla. Cr. 212, 111 P. 822, we held that—

“It is error to instruct the jury that a person who stands by and consents or acquiesces in the commission of a crime is a participant therein. To be concerned in the commission of crime, one must either commit the crime' himself, or procure it to be done, or he must aid, assist, abet, advise or encourage its commission.”

Other questions are raised, but we forbear from further discussion of this case. It is evident from the record that the defendant did not have a fair and impartial trial.

For the errors indicated, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHARLES WASHINGTON v. STATE.
    No. A-5486.
    Opinion Filed May 8, 1926.
    (245 Pac. 907.)
    F. R. Burns and E. G. Avery, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of having unlawful possession of two half pints of whisky, with intent to sell, and sentenced to serve six months in the county jail, and to pay a fine of $500.

The record discloses that a deputy sheriff, with a search warrant, went to the residence of the defendant, a two-room house in Douthat, occupied by the wife of the defendant, two' small children, and his aged mother. The defendant was not at home, and copy of the search warrant was given the wife, and a search made. In the pocket of the coat two half pint bottles of whisky was found. There was also an empty jug and an empty fruit jar. The jar contained a small quantity of whisky, “probably about enough for one drink.” The jury did not assess the punishment; the court imposed the maximum.

It is contended that the search warrant was illegal as based on insufficient affidavit. We do not deem it necessary to set out the affidavit, but find it sufficient. The further contention is made that the evidence is insufficient. There was no evidence that the two half pints of whisky were kept for an unlawful purpose, unless the empty jug and the fruit jar with a small quantity of whisky should be so considered, and, by chapter 123 of the Session Laws 1924, the keeping in excess of one quart at any place including the residence is made prima facie evidence of an intent to violate the liquor law. In this cg,se the quantity found is less than one quart, and the prima facie evidence rule does not obtain. Without the application of this rule there is not sufficient evidence to sustain the verdict and judgment.

The case is reversed and remanded, with instructions to dismiss.


author: BESSEY, P. J.

text:
    KING CUDJO v. STATE.
    No. A-5487.
    Opinion Filed May 8, 1926.
    (245 Pac. 906.)

      Anglin & Stevenson and Forest M. Darrough, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

King Cudjo, plaintiff in error, was convicted of the illegal possession of a still and mash fit for distillation. By verdict of the jury his punishment was fixed at a fine of $100 and confinement in jail for 90 days. From the judgment on this verdict he appeals.

The evidence upon which this conviction rests was procured by means of a search warrant issued upon an affidavit which was not sufficient to give the magistrate jurisdiction to issue it. A private residence is immune from search and seizure, unless a showing is made by sufficient affidavit that the residence or a portion of it is a store, rooming house, place of storage, or a place of public resort. No such showing was made in this case.

The' cause is. reversed, With instructions to dismiss the action.

DOYLE and EDWARDS, JJ., concur.


text:
    TONIE HAGANS v. STATE.
    No. A-5497.
    Opinion Filed May 8, 1926.
    (245 Pac. 1115.)
    Jeff D. McLendon, for plaintiff in error.
    The Attorney Genera^ for the State.
   BESSEY, P. J.

Plaintiff in error, Tonie Hagans, was charged with the illegal salé of whisky to Idon Wilson. At the trial a jury found him guilty and fixed his punishment at 60 days in jail and a fine of $150. From the judgment on the verdict, he appealed to this court. No briefs have been filed supporting this appeal. An examination of the record shows the information was sufficient, that there was evidence supporting the accusation, that the instructions fairly stated the law of the case, and that the plaintiff in error otherwise had a fair trial. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    L. A. DENNY v. STATE.
    No. A-5469.
    Opinion Filed May 8, 1926.
    (245 Pac. 1115.)
    I. E. Hill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Cimarron county on a charge of unlawful transportation of intoxicating liquor and sentenced to pay a fine of $100 and to confinement in the county jail for a period of 30 days. The case was tried and sentence passed on the 20th day of September, 1924. Appeal was not lodged in this court until the 9th day of March, 1925, a period of more than 120 days. Under section 280, Comp. Stat. 1921, where an appeal is not lodged in this court within 120 days after rendition of the judgment, this court does not acquire jurisdiction. The áttempted appeal is therefore dismissed.


text:
    JOHN IVEY v. STATE.
    No. A-5380.
    Opinion Filed May 8, 1926.
    (245 Pac. 908.)
    Ben F. Williams, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

John Ivey, defendant below, plaintiff in error here, is a man 52 years of age, engaged in business in Wanette, a resident of that neighborhood for 20 years, of good repute, and the owner of a farm some miles out. The defendant had spent the day on his farm, with his tenant, digging a ditch. That night the defendant telephoned a taxi driver, Don Abbott, to come to the farm early the next morning to take him in to Wanette. The taxi driver came, and after they had proceeded some distance homeward the car refused to move. Defendant went to a nearby farmhouse for help. This farmer and another found Abbott at the car drunk, and one of them telephoned the officers. As the officers approached, the defendant threw a jar containing whisky into a ditch by the roadside. The officers found two other jars of whisky in Abbott’s car. When the defendant went to this farmhouse for help he had a bundle of some sort under his arm, which might have contained the jar which he later threw away. The farmer also detected the odor of liquor emanating from the person of the defendant.

Abbott pleaded guilty to a charge of transporting whisky. Defendant says that the evidence is insufficient to support the averments of illegal transportation as to him, and that the court erred in giving instruction No. 5, as follows: “You are instructed that any transportation, however slight, is sufficient to consummate the offense charged.” Under this instruction the jury may have found that the whisky belonged to Abbott and that the defendant was guilty of illegal transportation in removing the jar from the car to where it was thrown into the ditch. This would not constitute an illegal conveyance of liquor “from one place within this state to another place therein,” within the meaning of the statute. Chapman v. State, 28 Okla. Cr. 208, 230 P. 283; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538.

The evidence indicates that the liquor was conveyed to this place by the taxi driver, and that the defendant was merely a passenger for hire and not criminally implicated in the illegal transportation of the whisky. ,

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


author: RESSEY, P. J.

text:
    JESSE WOODEN v. STATE.
    No. A-5348.
    Opinion Filed May 8, 1926.
    (245 Pac. 910.)
    Phillips, Douglas & Duling, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   RESSEY, P. J.

The plaintiff in error, Jesse Wooden, here referred to as the defendant, was charged with the murder of E. J. Friend. He was found guilty of manslaughter in the first degree, with his punishment fixed at imprisonment in the state penitentiary for a term of four years.

In this case the stage was well set for a homicide. E. J. Friend, the man who lost his life, was a deputy sheriff; actively assisting his father-in-law, Cad Clifton, in the manufacture of whisky in the nighttime, at a creek in a canyon surrounded by trees and underbrush. On the night of the tragedy a passing neighbor saw the fire at the still, and detected the characteristic odor of cooking mash. He reported his discovery to the defendant, who was also a deputy sheriff, whereupon the defendant arranged with three neighbors to assist him in capturing the still and those operating it. Three of the four men armed themselves with shotguns, and the fourth had a .45 pistol. It was agreed that one would station himself south of the still; another take a position to the north; another to the west; and the fourth to the east. At a given' signal all were to close in for the purpose of seizing the still and those running it.

In an endeavor to locate themselves as agreed upon, some misunderstanding or confusion arose. The signal to be given by one for the others to approach was not given, or, if given, was not understood, so that all four men remained in hiding under cover, in sight of the still until after midnight, when one of them fired a shot, which was followed by two other shots. Then it was that all six of the men, including the deceased and his father-in-law, ran in different directions through the underbrush in more or less confusion. E. J. Friend, the deceased, ran near the defendant, who says he recognized him, and commanded him to halt. If such command was given, Friend gave no heed to it, but continued his flight, passing within a few feet of the defendant. The defendant says that Friend had a pistol, and was preparing to shoot at the defendant, when he shot Friend at close range. The shots from the gun so fired penetrated the body of Friend, entering at the side of the back near the shoulder blade, passing into the vital organs, and causing almost instant death.

There is evidence tending to show that the deceased and his father-in-law were suspicious of one another, and that, when the shooting began, both were panic-stricken, and fled from the still in different directions. Likewise there was confusion among the members of the posse, so that in the darkness and underbrush none could tell who was friend and who foe.

The defendant and one of his witnesses claim that the deceased had a pistol, and that the fatal shot was fired in self-defense. The jury were justified in rejecting this theory from the facts shown, particularly since the deceased was shot in the back, — or nearly so, — at close range. Primarily, it is difficult to determine whether the defendant or the deceased was more at fault. For a deputy sheriff, charged with the enforcement of -the law, secretly to engage in the violation of law and protect others in law violation is despicable; but, even so, that is not sufficient justification for another deputy sheriff to shoot him in the back.

Instructions numbered 18 and 20, defining mutual-combat and provoking the difficulty, should have been omitted, because the evidence did not raise either of these issues; but the giving of these instructions, under the circumstances, was harmless.

Instruction No. 23 might have been more aptly worded, but this instruction as given, considered together with the other instructions, was not misleading, and did not shift the burden of proof or deprive the defendant of the benefit of any reasonable doubt.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS', JJ., concur.


text:
    F. W. WHITFORD v. STATE.
    No. A-5495.
    Opinion Filed May 8, 1926.
    (245 Pac. 911.)

      Brett & Brett, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

F. W. Whitford, a pharmacist, was found guilty of the illegal sale of one drink of Jamaica ginger as a beverage, the same being an alcoholic medicine with a per cent, of alcoholic content. His punishment was fixed at a fine of $250 and 90 days in jail.

The evidence shows that a drunken woman and her husband, drunker still, were being detained at police headquarters in Ardmore, when the woman offered to show the officers where she had obtained her spirits. Two officers thereupon drove with her to the Neal drug store. The woman and one of the officers entered the store, and the woman went behind the prescription case, where she procured a bottle containing Jamaica ginger and started to pour some of it out into a glass. Whitford interfered and said to her, “You’re not running this drug store.” The woman claimed to have purchased a drink there earlier in the day. The accused denied the sale and said he never saw the woman before the incident just related.

We think the evidence falls short of being sufficient. Moreover, the county attorney in his closing argument said:

“It was never asked if the defendant had ever, been charged with any offense, and if it had been the court would not have permitted it. It is a rule of law — (An objection here made was sustained).
“(Continuing) Let the record show that Mr. Bowman (attorney for the defendant) made the statement in his argument that ■ the defendant had never been charged with any crime.”

Notwithstanding the objection was sustained, the remarks so made may have been prejudicial.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ.> concur.


text:
    FRANK PALMER v. STATE.
    No. A-5248.
    Opinion Filed April 16, 1926.
    Rehearing Denied May 8, 1926.
    (245 Pac. 662.)
    Wilkinson & Hudson, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This conviction rests largely upon the testimony of a negro, Walter Wesson, reciting the details of how the saddle in question was stolen by the defendant and afterwards transported from place to place and hidden by the defendant and the witness, and how it was finally recovered by the witness and returned to its owner.

A portion of the testimony indicates that Wesson vyas an accomplice with the defendant; other portions indicate that Wesson was not implicated in the original theft and asportation. Be that as it may, the testimony of Wesson was corroborated, here a little and there a little, by six different witnesses, strengthened by the physical facts shown and the testimony of the defendant himself. In this connection we reiterate the rule followed in Collins v. State, 28 Okla. Cr. 45, 228 P. 993, where it was said:

“Evidence corroborating an accomplice need not cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may, from that fact, infer that he speaks the truth as to all.”

The other assignments of error are without merit or were not properly preserved for review, as pointed out by the Attorney General.

The judgment of the trial court is affirmed.


author: EDWARDS, J.

text:
    LUTHER CLOGSTON v. STATE.
    No. A-5206.
    Opinion Filed May 8, 1926.
    (245 Pac. 905.)
    J. Q. A. Harrod, for plaintiff in error.

      Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the second degree and sentenced to serve a term of two years in the state penitentiary.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict. The record discloses a state of facts about as follows: In September, 1922, the defendant and the deceased, Albert Henderson, were employed at the New State Laundry, Oklahoma City. A young man named PTice roomed at the home of Henderson. On the afternoon of September 27th, he and defendant went to Henderson’s home, and Price gave defendant a drink of wine, and they took a bottle away with them. Again that afternoon they returned to the Henderson home and got another drink of wine. Price, it appears, told defendant that it was his and Henderson’s wine, and that he had a right to it. The next morning before defendant got to the laundry, Henderson, who was something of a pugilist, told Price that he and defendant had stolen some of his wine and that he was going to whip them. He took Price and went to the fair grounds looking for defendant, but, not finding him, returned to the laundry. Later defendant came to the laundry, and Henderson accused him of having stolen some of his wine, and said: “I believe I can whip both of you.” Defendant then started to run, but Henderson caught him and they had a difficulty, in which defendant was severely beaten. After whipping defendant, Henderson ordered the Price boy down stairs and kicked him a couple of times as he was going. Almost immediately the difficulty between defendant and Henderson was renewed, and in the course of the difficulty defendant seized a bottle of carbolic acid used in making ink in the laundry, which was setting near, and struck Henderson over the head with it; the bottle was broken and the acid spilled over Henderson and defendant. Both were rushed to the hospital, the death of Henderson from acid bums resulted, and defendant was dangerously burned.

Mrs. A. Harrold, an employee at the laundry, saw part of the difficulty. She testified that Henderson struck defendant with his fist and then grabbed a laundry truck, shoved it at defendant, who grabbed it with one hand and fought with the other; Henderson then ran around the truck and seized defendant, and they fought some time, then the difficulty ceased for a short time; that Henderson took the Price boy to the stairway and kicked him down. Henderson then came back and immediately grabbed defendant, and the fight was renewed, and when they were near the desk where the acid bottles were kept she heard a crash, but did not see the blow with the bottle.

Mrs. Weaver, another employee of the laundry, testified they had been fighting some little time, and the fight ceased temporarily. Then Henderson shoved a truck at defendant, and defendant shoved it back, but did not hit Henderson. Henderson then seized defendant, and they got back toward the desk, and she heard a crash of the bottle.

Defendant in his own defense testified he was assaulted by deceased and severely beaten and two or three of his ribs fractured; that he tried to escape from deceased but could not; that in the course of the difficulty when near a desk he was struck on the head by deceased and dazed; that he pulled himself up by the desk and seized a bottle and struck deceased; that he did not know what was in the bottle; that it was broken by the blow and its contents spilled over both of them; that he was unable to defend himself from the attack of deceased and acted in his necessary self-defense.

The physicians who attended defendant testified that he was severely beaten and wounded and probably had fractured ribs. There is no sharp conflict in the testimony, but all the witnesses recount the circumstances in substantially the same way.

Since the facts proven and the credibility of the witnesses is within the province of the jury, this court is very reluctant to reverse a case on the insufficiency of the evidence, and it is only where there is no evidence from which the jury could rationally conclude that a defendant is guilty, or where the verdict is based on such weak and inconclusive evidence, or is so clearly against the weight of the evidence, as to convince the court that the jury erred in its judgment on the facts, that it will set aside a verdict for insufficiency of the evidence. However, as we view the evidence here, a case of self-defense is clearly shown. The verdict and judgmnt are not sustained by the evidence.

The case is reversed and remanded, with instructions to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY. P. J.

text:
    HOMER TOMPKINS v. STATE.
    No. A-5492.
    Opinion Filed May 8, 1926.

      (245 Pac. 904.)

      E. I. Saddler, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY. P. J.

Homer Tompkins was convicted of having illegal possession of choc beer, with his punishment fixed at a fine of $300 and confinement in jail for 30 days.

The evidence shows that certain officers found a. barrel of choc beer buried in the earth in a road about 50 or 60 feet from a little store operated by Tompkins. Two officers say they saw him run from the place where they found the beer to his store. The defendant denied ownership or having any knowledge of the beer. Other witnesses say he was in his store at the time the officers approached.

Without analyzing the evidence, some of it incompetent in detail, we hold it is not sufficient to support the verdict.

The judgment below is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    GEORGE A. HOCHDERFFER v. STATE.
    No. A-5488.
    Opinion Filed May 8, 1926.
    (245 Pac. 904.)

      C. H. Carswell, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

George Hochderffer, plaintiff in error, here designated the defendant, was found guilty of maintaining a liquor nuisance, with his punishment fixed at a fine of $250 and 90 days in jail.

The defendant, anticipating that the state would introduce evidence obtained by a search and seizure of liquor found in and about his residence, filed a motion to suppress the evidence so obtained on the ground that the affidavit upon which the search warrant was based was insufficient to give the magistrate jurisdiction to issue the same. To this application a copy of the search warrant was attached, showing the seizure of ten gallons of whisky taken from the possession of the. defendant on his premises.

The affidavit upon which the search warrant was issued set out that the premises were a place° where intoxicating liquor was kept and sold, where cars visited at all hours of the night; that it was a place of storage, and, inferentially, a place of public resort. The court properly overruled the defendant’s motion to suppress-.

The state introduced witnesses showing that a certain person had purchased two pints of liquor at this place, and that the place bore the reputation of being a place where intoxicating liquor was kept for sale. But, for some undisclosed reason, the state failed to call the officer who seized the ten gallons of whisky. Despite this omission, the state did show conclusively the sale of two pints of whisky by the defendant .from this place, and showed some circumstances indicating that it was a public place and bore the general reputation of being a place where alcoholic liquor was kept for sale — sufficient evidence to support the verdict.

That the jury made no mistake is confirmed in the minds of this court by the admissions of the defendant in his motion to suppress the evidence, and by the fact that the defendant exercised his right to decline to go upon the witness stand in his own defense.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    GEORGE HOCHDERFFER v. STATE.
    No. A-5438.
    Opinion Filed May 8, 1926.
    (245 Pac. 902.)

      C. H. Carswell and W. R. Wheeler, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty, Gen., for the State.
   DOYLE, J.

On information filed in the county court of Caddo county, charging that on the 24th day of November, 1924, he did have in his possession 10 gallons of whisky, with the unlawful intent to sell the same, appellant was tried and convicted. The jury failed to agree upon the punishment.

Motions for new trial and in arrest of judgment were duly filed, overruled, and the court sentenced appellant to pay a fine of $500, and be confined in the county jail for six months. To reverse the judgment he appeal^.

In the view we have taken of the disposition of this case, it is neither important nor necessary to consider more than one of the questions presented in the record and brief; that is, the question raised by the plea of former jeopardy.

When the case was called for trial, appellant interposed a special plea that he had already been convicted upon an information filed in said court of the offense charged in this information, and, in support of the plea of autre fois convict, introduced the record in said cause, wherein the information charged that on the 24th day of November, 1924, he did unlawfully keep a place on lots 1 and 6, inclusive, in block 21, of the town of Apache, where intoxicating liquors are kept and possessed for sale, and as a place where people congregate and resort for the purpose of drinking intoxicating liquors, and the verdict returned finding him “guilty as charged, in the information, and assess his punishment at 90 days in county jail and a fine of $250,” and the judgment rendered in accordance with the verdict.

It appears that the names of the witnesses indorsed on both informations are the same, and the proof show's that both informations were predicated on evidence obtained in executing a search warrant against appellant’s premises in the town of Apache, wherein the officers found and seized 10 gallons of whisky. The question thus raised is whether the facts set forth in the special plea show that appellant had been once in jeopardy for the same offense charged in the second information.

The constitutional guaranty not to be twice put in jeopardy is found in section'21. Bill of Rights, and is as follows:

“Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy for the same offense.”

Our Procedure Criminal provides:

“No person can be subjected to á second prosecution for a public offense for which he has once been prosecuted and. duly convicted or acquitted except as hereinafter provided for new trials.” Section 2350, C. §. 1921.
“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the-offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” Section 2626.

It is the well-settled doctrine in this state that a series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction. A single criminal act cannot be split up and subdivided into two or more distinct offenses, and prosecuted as such. If the state elects through its authorized officers to prosecute an offense in one of its phases or aspects, and upon his trial the defendant is convicted, it cannot afterwards prosecute the same criminal act under color of another name, and a jeopardy on one information will bar the second whenever the proof shows the second case to be the same criminal act or transaction.

In Estep v. State, 11 Okla. Cr. 103, 143 P. 64, we said:

“To give our constitutional provision the force evidently intended by the language used, and to render it effectual, the decisive test is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to the one information will equally sustain the other. The constitutional guaranty of immunity from a second prosecution is, in its nature, a restraint on the courts, and constitutional provisions for the security of the personal rights of the citizen should be liberally construed.”

Thus, in the case of State v. Nutt, 28 Vt. 598, cited with approval by the Supreme Court of the United States, in, Ex parte Nielsen, 9 S. Ct. 672, 131 U. S. 176, 33 L. Ed. 118, it was held that, where a person was convicted of being a common seller of liquor, he cannot afterwards be prosecuted for a single act of selling within the same period. If, said the court, “ ‘the government see fit to go for the offense of being a common seller,’ and the respondent is adjudged guilty, it must, in a certain sense, be considered as a merger of all the distinct acts of sale, up to the filing of the complaint, and the respondent cannot be punished but for one offense.” And see Jackson v. State, 11 Okla. Cr. 523, 148 P. 1058.

The two informations allege the same date, and have reference to the same intoxicating liquors, and, while the offenses charged are not necessarily the same, they are of the same nature and kind. The conviction on the first information was a finding that the defendant did have possession of the liquor in question with intent to sell the same. Applying the test stated, would proof of the facts alleged in the second information have warranted a legal conviction on the first information? It is obvious that the question admits of only an affirmative answer. The defendant requested an instruction based on section 2626, herebefore quoted, which the court refused to give.

When, at the close of the state’s evidence in chief, it appeared that the evidence adduced was the same as that on the first information, we are of the opinion the court should have directed a verdict of former conviction, Considering the record as a whole, there can be no doubt that the conviction of defendant by the jury on the trial of the first information operates as a bar to his conviction upon the second information.

It follows from what has been said that the court erred in overruling the plea of former jeopardy.

The judgment is reversed and the 'cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWAKDS, J., concur.


text:
    BEN F. WILSON v. STATE.
    No. A-5475.
    Opinion Filed May 10, 1926.
    (296 Pac. 489.)
    Stanley Williams, for plaintiff in error.
    The Attorney General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, Ben Wilson, here designated the defendant, was convicted of the larceny of a cashier’s check of the amount of $165. The jury fixed his punishmept at confinement in the penitentiary for a period of nine months.

The evidence shows that the prosecuting witness was on the point of leaving Durant, in Bryan county, on the train at about midnight on April 11, 1924, and that he ha,d a letter to be mailed to his mother, and that this letter contained a cashier’s check for $165, indorsed in blank. Going to a soft drink stand at the depot the witness asked for a special delivery stamp. The defendant was at this drink stand and heard the witness ask for this special delivery stamp, and, when he failed to secure the same, he purchased and put on the letter enough two cent stamps to classify the letter as special delivery. The defendant snapped his fingers, and said: “That reminds me I have couple of v letter to mail myself.” He thereupon pulled some lettters out of his pocket, apparently ready for mailing, and said to the witness: “If you want me to I will mail your letter too.” The witness gave his letter to the defendant, and that was the last he knew of it until the check was later secured, canceled, bearing the indorsement of the defendant, Ben F. Wilson, and showing that it had been cleared through the First National Bank of Durant on April 12, 1924. There was no dispute that the check was cashed at this bank.

The defendant admitted that he had cashed the check at this bank, but denied that he was the party to whom the envelope containing this check had been given the night before, interposing an alibi that he had been at home that night, in which he was supported by the testimony of his wife. He explained that another person, one Jáck McCarthy, for whom he had been driving a taxi, saw him on the morning of April 12th, at the taxi stand, and told him that he had won this .check in a dice game with a traveling man, and asked the defendant to cash it for him, as he feared the traveling man might stop payment on the check; that McCarthy paid him $20 for his services in cashing this check; that he had paid a note for McCarthy at the bank, in the amount of $50, deposited $50 to his own account, and given the balance of the proceeds of the check, in cash, to McCarthy.

The preliminary complaint before the justice of the peace reads thus:

“Personally appeared before me, justice of the peace in and for said county and state, W. F. Hafele, who being duly sworn on oath, says that on or about the 11th day of April, 1924, one Ben Wilson, late of Bryan county, and within Bryan county, state of Oklahoma, did commit the crime of grand larceny; that is to say, said defendant did in the said county of Bryan and state of Oklahoma, at the above-named date unlawfully, willfully, feloniously, and intentionally break open a sealed package containing a valid check of the value of $165, said check being the property of W. F. Hafele, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

Upon this complaint the defendant was arrested and gave bond to appear for a preliminary hearing. On the day set the defendant appeared and waived a preliminary hearing. The state then produced witnesses, upon whose testimony the court based the following order:

“Thereupon the court proceeds to hear testimony, and the hearing of the testimony having been completed, and it appearing that the offense of - has been committed, and that there is sufficient cause to believe the defendant guilty thereof, it is therefore ordered, considered, and adjudged by the court that the said defendant, Ben Wilson, be held to answer the charge of grand larceny, and his bond is fixed in the sum of $500 to answer the said charge, and in default of said bond he is ordered committed to the custody of said county.”

The county attorney then filed an information against the defendant in the district court, the charging part of which is as follows:

“That is to say, the defendant did, in said county and state, at the date above named, unlawfully, wrongfully, knowingly, willfully, fraudulently, stealthily, and feloniously by fraud, take, steal, and carry away a certain check and written instrument, of the following purport and tenor, to wit:. ‘Illinois Merchants’ Trust Company. Chicago, March 25, 1924. 192. No. 38869. Pay to the order of Wm. T. Hafele $165, one hundred sixty-five dollars. Mac Crine, Asst. Cashier’ — on the end of-which check are the following words and figures: ‘Cashier’s Check.’ Upon the back of which check was indorsed the following name: ‘Wm. F. Hafele.’ Which said check and written instrument is and was the personal property of the said Wm. F. Hafele, and of the value of one hundred and sixty-five dollars, with the unlawful, wrongful, fraudulent, and felonious intent then and there by fraud on the part of him, the said Ben F. Wilson, to deprive the said Wm. F. Hafele, the true owner thereof, of said property, and to convert the same to the use and benefit of him, the said Ben F. Wilson, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant claims that the original charge before the justice of the peace charged a misdemeanor only, upon which the examining magistrate had m> right to order a preliminary hearing, and that consequently the defendant had had no preliminary hearing on the charge finally laid.

This court holds that the averments in' the original complaint were sufficient to apprise the accused that he would be required to meet a charge of grand lárceny. In Wade v. State, 18 Okla. Cr. 592, 197 P. 180, this court said:

“The complaint before the magistrate need not state the offense charged in technical language, nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear, including a statement in ordinary language of the acts or omissions constituting the offense charged.”

After being apprised of the general nature of the charge, the defendant waived a preliminary hearing.

Section 2497, Comp. Stat. 1921, reads as follows:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect:
“It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same.”

In the Wade Case, supra, it was held:

“Under Const, art. 2, § 17, providing for the prosecution of felonies by information, after examination and commitment before an examining cmagifetrate, or the defendant having waived such preliminary examination, it is the fact that there was a preliminary examination, or a waiver thereof and a judicial determination thereon by the examining magistrate that the offense charged in the complaint, or that a felony other than that charged, as shown by the examination, has been' committed, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information for the offense charged in the complaint when an examination has been waived, or for the offense shown by the evidence on the examination, for which the defendant was held to answer.”

A variance between the offense as stated in the original complaint before the magistrate and that stated in the information, under circumstances like this, will not operate to require a second preliminary examination. In the case of Haley v. State, 20 Okla. Cr. 145, 200 P. 1009, the court said:

“A waiver of preliminary examination by defendant does not prevent the state from proceeding with examination and taking evidence in order to determine the exact crime for which defendant should be held, as section 5680, R. L. 1910 [§ 2479, C. S. 19211, contemplates not only that defendant may be held for felony charged in preliminary complaint, but for a different felony, if upon a hearing the facts so show.” ’

There was evidence to support the theory that this check was obtained by the defendant by trick and stealth, amounting to a larceny by fraud. Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; McKinney v. State, 19 Okla. Cr. 94, 198 P. 108; 17 R. C. L. 14, 15.

The objections to the instructions urged by defendant have been considered, and the vice pointed out is held to be harmless and not misleading under the evidence, when considered along with other portions of the instructions. ,

The judgment of the trial court is affirmed.

DOlYLE and EDWARDS, JJ., concur.


text:
    LEE DAWES v. STATE.
    No. A-5473.
    Opinion Filed May 13, 1926.
    (246 Pac. 482.)

      J. Berry King and B. L. Keenan, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State
   DOYLE, J.

On information filed in the district court of Cherokee county, August 3, 1924, charging that in said county, December 27, 1923, Lee Dawes had sexual intercourse with Montie Etheridge, a female, under the age of 16 years, and not the wife of said defendant, he was tried and convicted, the jury leaving the punishment to be assessed by the court. Motion for new trial was overruled by the court, and judgment rendered on the verdict, sentencing defendant to imprisonment in the penitentiary for the term of 14 years. The errors relied on to reverse the judgment will be taken up in the order presented.

It is urged that the court erred in overruling defendant’s motion for a continuance on the ground of the absence of Jennie Yann, a material witness, duly subpoenaed by him in reasonable time, and, as the record shows, subpoenaed by the state.

Defendant in his affidavit states:

“* * * That affiant has used due diligence to ascertain the whereabouts of said witness and has been unable to locate her. That if continuance is granted defendant expects to have said witness present in court or her deposition by the next regular term of court. That if present she would testify, in substance: That on the night of December 27, 1923, she, together with Bill Condon, Montie Etheridge and Lee Dawes, left Tahlequah in Lee Dawes’ car to go to the depot to see Watie Foreman off on the train; that Montie Etheridge got into the car on her invitation; that she was in the ear all the time from the time Montie Etheridge got into the ear until they drove to her home; that Lee Dawes did not have sexual intercourse with the said Montie Etheridge; and that they were never out of the car, but everybody stayed in the car.
“That said evidence is material to the defense, and affiant knows the same to be true. That he could not prove all of said facts by any other witness. That this application is not made for delay, but that substantial justice may be done.”

The subpoenas issued and the return thereon were offered in evidence. The motion was overruled and exception taken.

It is well-settled general rule that in reviewing the refusal of a continuance on account of the absence of witnesses, the record will be examined and the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true. McCarty v. State, 10 Okla. 407, 136 P. 1122.

The prosecutrix was the only witness in this case called by the state. She testified: That she resided with her parents one mile west of Tahlequah, on Judge Parks’ place. That she was 14 years old February 23, 1924. That she first saw Lee Dawes about a month before this happened. That, about a week after Christmas, she was in Tahlequah. Lee Dawes, Jennie Vann, and Bill Condon came down the street and asked her to go to the depot with them to see Watie Foreman, who was leaving that night. That she got into the car, and, when they got to the depot, the train was leaving. They said they would take her on home. When they got out there defendant stopped the car, and Bill Condon and Jennie Vann walked off down the road. That defendant pulled her out and behind the car and there had sexual intercourse with her. That they were there about five minutes. Then they got hack in the car. About this time Jennie and Bill came back. Then they took her home. Her parents were there and she went to bed. That the next morning she told her sister about it.

For the defense, William Condon testified: That he was supboenaed as a witness for the state. That he was with Jennie Vann in Lee Dawes’ car, going to the depot to see Watie Foreman off. Dawes stopped, and a girl that he never saw before got into the car on the invitation of Jennie Vann. Then they drove on by the depot and stopped on the public road. That they talked a while, and he got out of the car and walked down the road to urinate. That Jennie Vann did not get out of the car. That they drove back to Tahlequah, and Jennie Vann and the girl in the front seat got out at Jennie Vann’s house, on Muskogee avenue.

As a witness in his own behalf, Lee Dawes testified: That Mr. Condon and Jennie Vann got in his car. It was near train time, and they were going to see Watie Foreman leave on that train. Montie Etheridge came along. Jennie Vann remarked about getting in, and he stopped; she got in, and said she was on her way home. That when they got to the depot the train was pulling out, and he drove on out towards her home, on Judge Parks’ place and stopped about even with the house for her to get out and go home. That they talked there a while, and she said she was not going home, that she was going back to Ester Thorn’s, and he turned around and drove back to town. That he did not get out of the car while she was in it, and did not have sexual intercourse with the prosecutrix.

After judgment and within the term, defendant filed a supplemental motion for a new trial on the ground of newly discovered evidence, supported by his affidavit and the affidavits of Jennie Vann and Callie Etheridge.

The affidavit of Jennie Vann corroborates the testimony of defendant and witness Condon, and further states:

“When we reached the depot, the train was just pulling out, and we told Montie that we would take her on to her home. Montie lives off the road something like a quarter of a mile out in the field, and when we got to the end of the road we stopped for her to get out, talked a few minutes, and she decided that she wanted to go back to town and stay all night with me, so we drove back. We stopped only a few minutes, and this was the only stop we made, either going or coming. Mr. Dawes was never out of the car at any time during the trip, and he did not mistreat Montie Etheridge at the place where we stopped or anywhere else or say anything out of the woy to her.”

The affidavit of Callie Etheridge is in part as follows:

“I am the sister of Montie Etheridge. I remember the occasion when Watie Foreman left Tahlequah. On that night my sister Montie Etheridge stayed all night at the residence of Ester Thorn, in Tahlequah. I was out driving that night and got into Ester Thorn’s about 10 o’clock and when I got there my sister Montie was there in bed and asleep.”

In support of the motion was also attached the following statement, signed by eleven of the jurors:

“We, the jury in the case of Lee Dawes charged with rape on one Montie Etheridge tried in the district cofirt, September 11, 1924, we found this defendant guilty but could not agree as to the punishment. Since this trial we have learned of evidence that was not presented to us that was favorable to this defendant, and therefore we recommend a full acquittal of Lee Dawes of this crime.”

Attached also was the acceptance of service and the waiver of objections, by the county attorney, in part as follows:

“I hereby waive any objections to granting of á new trial, and, in view of the newly discovered evidence set out in this motion and the action of the eleven members of the jury trying him in recommending the course they do, I join in recommending to the court that this defendant be given a new trial.
“[Signed] W. A. Douglas, County Attorney.”

The granting or refusing a continuance is ordinarily discretionary with the trial court. However, continuances ought always to be granted, when, from the showing, justice requires it to be done, and to enable the defendant to procure all legal and competent evidence necessary for a fair presentation of the defense, where due diligence to obtain the same has been shown.

The record here shows that the information was not filed in the district court until nearly eight months after the time the offense is alleged to have been committed; that defendant was arraigned September 1st, and entered his plea of not guilty. The case was called for trial September 11th, and the motion for continuance overruled.

Upon this record, and on account of the peculiar circumstances of this case, we are inclined to think that the court should have granted the continuance. The diligence used was sufficient, and the facts proposed to be proved were material. It follows that the court abused its discretionary power in compelling defendant to go to trial at that time.

Several assignments of error are based upon rulings of the court on the cross-examination of the prosecutrix. On her cross-examination the court sustained state’s objections to certain questions and allowed exceptions.

The following offer of proof was made:

/‘At this time defendant offers to prove, on cross-examination of Montie Etheridge, that in the month of May she was brought from the State Industrial School for Girls to the county court, and at that time she made similar charges against six or seven other defendants, and that she is now the prosecuting witness in these cases set for trial this term of court.”'

The court excluded the offer of proof, and exceptions were taken.

In the view we have taken of the disposition of this case, it will suffice to say that we think it was competent for the defendant to cross-examine the prosecutrix as to her past conduct, and to show that she had been committed to said institution, and thus impair her credibility. She was also asked if she called for help or tried to get away, and if she said anything about what happened to Bill Condon or 'Jennie Vann. We think this was proper cross-examination as being a part of the res gestae.

The proper practice is that on the direct examination of the prosecutrix she may be asked whether she made complaint that such an outrage has been perpetrated upon her, and when and to whom, and the person to whom she complained is usually called to prove that fact; yet the particular facts which she stated are not admissible in evidence, except when elicited on cross-ex-examination or by way of confirming her testimony after it has been impeached. 3 Green. Ev. 213. And the well-established doctrine is that the particulars of the complaint may be brought out on cross-examination. It follows from what has been said that the court erred in excluding this evidence on cross-examination.

It is also contended that the evidence is not sufficient to justify or sustain a conviction. Carefully considering all the evidence in the case, we are convinced that the evidence of defendant’s guilt is insufficient to support a conviction. The admonition of Lord Hale that “it must be remembered that this is an accusation easily to be made and hard to be proved, and harder to. be defended by the party accused, though never so innocent,” must be heeded.

This court does not hold with some that, as a matter Of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognize that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence as to the principal facts to sustain a conviction. Morris v. State, 9 Okla. Cr. 241, 131 P. 731.

In Douglas v. State, 19 Okla. Cr. 257, 199 P. 927, we held:

“Under the laws of this state, conviction for rape may be had upon the uncorroborated evidence of the prosecutrix; but, where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and the defendant testifies, and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

The testimony of prosecutrix that the defendant had sexual intercourse with her is without corroboration of any kind, and there is no claim of threats or fear in explaining her delay in making the complaint in this case, and the facts and circumstances in evidence all tend to discredit her. Upon the whole case we cannot help to think that the verdict was more the result of passion and prejudice than the calm, dispassionate consideration of the evidence by the jury.

For the reasons stated, and because the evidence is insufficient to warrant a conviction, the judgment of the trial court is reversed, and the cause remanded, with direction to dismiss.

BES'SEY,' P. J., and EDWARDS, J., concur.


text:
    JOHN McKENZIE v. STATE.
    No. A-5318.
    Opinion Filed April 8, 1926.
    Rehearing Denied. May 15, 1926.
    (245 Pac. 1005.)
    Warren & Welch and Welch & Welch, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, upoq a charge of murder, was convicted in the district court of Pushmataha county for manslaughter in the first degree, and sentenced to the state penitentiary for a term of 15 years.

The record discloses a state of facts about as follows: Jack Grogan, a son-in-law, was shot and killed by defendant November 18, 1923. There had been some ill feeling between them growing out of business matters and of alleged mistreatment of the daughter of defendant by deceased. Threats had been made by deceased against defendant, which had been communicated. At the time of the homicide, the daughter with an infant child was living with a family named Bailey some 9 miles from the residence of defendant. The deceased on that day came from the neighborhood of Ft. Towson to the place where his wife and infant child were living, and in doing so passed along the road near the house of defendant. It was not shown that defendant knew this, but the same afternoon defendant went from his home to the place where his daughter lived, carried a Winchester in his hand, and.had with him whisky and was drinking. With him was the witness Henry, whom he had hired to pilot him there. He rode up near the house where his daughter lived. A man named Hood and deceased were seated on the porch; the deceased playing with his infant child, with his back toward defendant. Deceased did not see defendant until he had alighted from his horse. He then started to run, and had taken about two steps when defendant with his rifle fired one shot from the hip, killing him instantly. The witness Hood testified that when deceased ran defendant shouted to him, “Come back here,” before he fired, and after the shot was fired said “he had come to kill the son of a bitch, and had done what he came to do.” The evidence also was that, as deceased was shot, he was in a stooped, running position, which is corroborated by evidence that the bullet that passed through his head entered the wall 34 inches above the floor.

Defendant testified that there was a gun over the door, or on the wall about the height of the door, and that deceased was reaching for it when he fired, and that he aimed the gun from the “neck up,” and that after shooting he reloaded and refused to deliver the gun to his daughter, who came out and begged him not to shoot any more. There was also evidence that on the road from his home to the scene of the homicide he inquired of the witness Holley if he had seen deceased pass the road, and also that he asked Holley not to tell that he had made the inquiry. Defendant testified that he did not remember that conversation, and denied that he made the statement attributed to him after shooting deceased. He further testified that he entertained ill feeling toward the deceased, explained his presence at the place by stating he was carrying some school examination papers to his daughter, who was a teacher, admitted having whisky with him at the time and drinking, and explained having his gun by saying he intended to shoot fish. There are some other incidental matters connected with the homicide that are not material to be stated.

Only two assignments of error are argued in the briefs: First, that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence; second, that the court erred in admitting in evidence a diagram of the scene of the homicide. These assignments will be considered in order.

Considering the first assignment: This matter of newly discovered evidence is presented in a supplemental motion for a new trial, and defendant relies upon the affidavit of Sarah Grogan, daughter of defendant and wife of deceased, in which she states that defendant did not say to her, or in her presence immediately after the homicide that: “I came up here to kill the damn son of a bitch, and I did what I came to do.” This is contradictory of the testimony of the witness Hood. Sarah Grogan was present at the trial, and was not called as a witness either by the state or by defendant. Whether or not she was questioned by counsel for defendant on this point is not clear from the motion. It contains the mere conclusion that “defendant herein and his counsel made every effort to secure this information from the witness in time to have used same at the trial, and the witness Sarah Grogan Withheld this information from them.” The motion further sets out the affidavit of Cora Barnett, who states that she approached the place of the homicide a short distance behind defendant and the witness Henry, and that she saw defendant ride up to the paling fence in front of the house, drop his reins, and get off his horse, and saw the deceased, Grogan, and Hood on the porch; that as the defendant dismounted from his horse the deceased arose and went diagonally across the porch immediately toward the place where there was a gun hanging, and just as he arose and started she heard the defendant say, “Stop, don’t get that gun,” and at this time defendant was standing at the paling fence in front of the house; that his gun was pointing in the direction of deceased with the muzzle of the gun projecting over the paling fence when he fired; that she went away without telling any one until after the trial. This is cumulative to the testimony of defendant and of the witness Henry, who was with him, and in conflict with the testimony of the witness Hood. The conclusion to be reached from the motion and affidavit is that ho one knew that this witness saw the homicide, although it does not appear that her presence might not have been known to some of the witnesses.

Also there is attached to the motion the affidavit of Virgil Bailey, a boy 9 years old, who was a witness of the homicide, and who stood near the edge of the porch when the fatal shot was fired. The presence of this boy and another small boy is disclosed by the testimony of the first witness who testified for the state, and, although known to the defendant, he was not called, and it does not appear that either of these bows was questioned as to the appearance of the affiant Cora Barnett at the scene.

There is also attached the affidavit of R. H. Miller and P. E. Cogburn, in substance, that, after the preliminary trial, the witness Hood said in their presence that, if defendant was not convicted, he would have to leave the country, as he had sworn falsely to please another party.

The rule adopted by this court as to newly discovered evidence may be stated thus: A new trial should be granted upon the ground of newly discovered evidence only where it is apparent that all reasonable diligence of which the subject is susceptible has been exercised by the defendant to procure the evidence at the trial, if it is also apparent that the newly discovered evidence might reasonably affect and probably would change the result of the trial. It is addressed to the discretion of the trial court, and its ruling will not be disturbed except for an abuse of discretion. It is not enough that the evidence tends to discredit or impeach the witnesses for the state, or is cumulative. McHugh v. Territory, 17 Okla. 1, 86 P. 433; Slater v. U. S„ 1 Okla. Or. 275, 98 P. 110; Caple v. State, 3 Okla. Cr. 621, 105 P. 681; Johnson v. State, 5 Okla Cr. 1, 112 P. 760; Drew v. State, 6 Okla. Cr. 348, 118 P. 677; Noel v. State, 14 Okla. Cr. 548, 174 P. 293; Hill v. State, 17 Okla. Cr. 356, 188 P. 695; Howey v. State, 9 Okla. Cr. 453, 132 P. 499.

Due diligence to procure testimony in the first instance'must be shown. It is not sufficient merely to allege the use of due diligence, but the facts constituting diligence must be set out. The witnesses known to be present should be interrogated to ascertain fully the surrounding facts and circumstances, and the presence of other witnesses who might be in possession of material testimony. Such does not appear. Upon an examination of the en-. tire record, this court cannot say that the trial court abused its discretion in overruling the motion for a new trial. Seigler v. State, 11 Okla. Cr. 181, 145 P. 308.

Upon the second assignment it appears that the plat or diagram in question was drawn by the county surveyor and represented the scene of the homicide, and in addition indicated places designated by the witness H,ood as to the position of defendant when the shot was fired, the location of deceased, the place where the bullet entered the house, and other objects. The following appears in the Record:

“Q. (Mr. Box, for the State) : I hand you State’s Exhibit No. 1, and ask you, Mr. Hood, to state what that is? A. Looks like a picture of the house.
“Q. Mr. Hood, I will ask you to state to the court and jury whether or not you were present at the time the measurements on the map were taken and whether or not you saw them made? A. Yes, sir. * * *
“Mr. Box: We desire to offer it in evidence.
“Mr. Welch (Counsel for Defendant) : No objection.”

After the introduction of this exhibit in evidence it was frequently referred to by both the state and the defendant, and it was near the close of the trial before objections were made and motion to strike interposed. The ruling of the court on this point was not erroneous. Rawlins v. State, 24 So. 65, 40 Fla. 155; State v. Shaw, 50 A. 863, 73 Vt. 149.

We are led to the irresistible conclusion that the killing was not in self-defense, but on account of ill feeling from defendant toward deceased on account of business relations and on account of ill treatment or fancied ill treatment of deceased toward his wife, the daughter of defendant. The evidence makes a case of murder, and the jury was lenient in returning a verdict of manslaughter and in assessing the punishment at 15 years.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    DOCK BUTLER v. STATE.
    No. A-5249.
    Opinion Filed April 24, 1926.
    Rehearing Denied May 15, 1926.
    (245 Pac. 1004.)
    Arnote, McCain & Emery, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county on a charge of driving an automobile while intoxicated and sentenced to pay a fine of $500, and to serve a term of one year in the state penitentiary.

The offense is charged to have been committed on the 1st day of September, 1923. The evidence discloses that on that day defendant, with Emmett Sharp, A. S. Fisher, and Earl McDonald, drove from McAlester to Krebs and return. On the road returning to McAlester defendant ran into a Ford car driven by one Corn, in which were some officers who placed him under arrest as being intoxicated. They took two bottles of Jamaica ginger from Emmett Sharp, and part of a bottle from defendant. They then directed defendant to drive on into McAlester, about a half mile distant. They had gone

-un opii unj pinpuajop uot[M. ooun^sip cptoqs Ajoa u ^nq other car driven by one Jones. There was evidence that, while at Krebs, defendant procured four quarts of “choc” beer, and his party procuréd, or already had, three bottles of Jamaica ginger. Several of the witnesses testified that defendant was drunk at the time of the first collision; that he was laughing, talking, and hurrahing. Of those in the car with the defendant, Sharp and Fisher pleaded guilty to being drunk. McDonald did not appear at the trial. Defendant denied that he was intoxicated; admitted procuring “choc” beer at Krebs; admitted that he tasted it, but stated he did not drink it because it was not good; admitted the collision with the Corn car, and said that was due to the lights on the car blinding him; stated that he took the bottle of “jake” found on his person to keep the others of his party from drinking it. Defendant presents several assignments of error, and such as are deemed material will be considered.

The contention is first made that the law (section 3, chapter 16, Session Laws 1923’, under which the prosecutipm was had, is unconstitutional as being in violation of section 57, article 5, of the Constitution. This contention has been considered in the case of Simpkins v. State, — Okla. Cr. —, 249 Pac. 168, just decided by this court adversely to the contention of defendant.

Complaint is next made that the court admitted incompetent evidence, prejudicial to defendant. The particular evidence at which this assignment is directed is that the witnesses were permitted to testify that at the time of, and shortly after, the arrest of defendant he was drunk; that is, that the witnesses were permitted to state their conclusion instead of being required to testify to the acts and conduct of defendant, upon which their conclusions were based. No special knowledge is required of a witness to qualify him to testify as to intoxication or sobriety. Such evidence is not expert evidence, and a witness may describe the facts and circumstances that led to his conclusion, or may simply state the fact of intoxication. 7 Ency. of Ev. 777; Pierce v. State, 53 Ga. 365; State v. Huxford, 47 Iowa, 16; Pace v. State (Tex. Cr. App.) 79 S. W. 531.

Complaint is also made that the court erred in refusing defendant’s requested instruction No. 1. The same is as follows:

“You are instructed that, before you can find the defendant guilty of driving the automobile in question while under the influence of intoxicating liquor, at the time and place charged in the information, you must find beyond a reasonable doubt, not only that he had drank intoxicating liquor, but that he was affected by such liquor to such an extent as to have lost the normal control of his body and mental faculties.”

No particular objection to the request is apparent, but.it is sufficiently covered by the court’s instruction No. 4, which informs the jury of the things necessary to be found by them beyond a reasonable doubt before they could return a verdict of guilty.

It is also argued that the punishment is excessive. The punishment is fixed by statute at a fine not to exceed $2,000, and confinement in the penitentiary not to exceed one year. The punishment assessed is less than the maximum, and, while no physical injury was sustained by any one by reason of the offense committed, the law, nevertheless, was violated, and the danger existed. We are not prepared to say that the punishment is so excessive as to indicate passion or prejudice.

Upon an examination of the entire record, we find no error that would warrant a reversal.

The case is affirmed.

BESSEY, P. J., and D-OjYLE, J., concur.


text:
    R. C. GUY v. STATE.
    No. A-5928.
    Opinion Filed May 15, 1926.
    (246 Pac. 481.)
    Tom W. Cheatwood, for plaintiff in error.
    The Attorney-General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, herein referred to as the defendant, was charged and convicted of an attempt to rape, committed against the person of Jewel Wehrhan, a female of the age of 9 years. By the verdict of the jury his punishment was assessed at confinement in the penitentiary for a term of 7y% years.

The evidence on the part of the state discloses that at about 5 o’clock of the evening of Tuesday, March 31, 1925, -the prosecutrix, a little girl 9 years old, and her sister, Zelma Wehrhan, 11 years old, were on their way to a city park in Capitol Hill. When they had reached a place near the park the defendant, driving a Ford truck, overtook them, stopped his car, and asked the two girls if they wanted to take a ride, to which they both replied in the negative. The defendant then drove on, and the little girls went on into the park. Soon the defendant returned and again asked the girls to ride. This time they accepted the invitation, and at the suggestion of the defendant the prosecutrix got into the seat with him; as her sister started to get into the rear portion of the truck the car started and she fell out. The prosecutrix asked! the defendant to stop, which he refused to do; instead he drove rather rapidly away, going towards the outskirts of town and over into the vicinity óf Packingtown. At a place near a culvert or bridge the defendant stopped his car and asked the little girl to get out. This she refused to do, and he again drove on, turning into an intersecting section line road and thence into a field or waste place, where he again stopped and wanted her to get out, which she still refused to do. They were now in a clump of trees near the bank of a creek, when the defendant took the child by force out of the car, stuffed a handkerchief into her mouth, and threw her upon the ground, tore or cut her bloomers off, got astride of her person, and tried to make her be quiet. In the struggle to get away from him she was bruised on various parts of her body and received abrasions about her face where the defendant hammered her with a dry stick in an effort to so frighten her as to prevent further outcries. After a while she told him to stop, that she wanted to tell him something. He released her, and she got up and fled toward the highway, at about the time that Dr. C. E. Barker and a lady companion were approaching in an automobile. This lady had called the doctor’s attention to the truck over in the field and to the little girl, who seemed to be in distress. When the doctor arrived at the point where the little girl came onto the highway he stopped his car and asked her what the trouble was. After getting into his car she related to the doctor, in the presence of the lady, some of the things here related, almost exactly as she later told them on the witness stand.

In the meantime the truck came out of the field into the highway, some distance in advance of Dr. Barker’s car. The little girl told the doctor that that was the man who had abused her, whereupon the doctor pursued the truck, both cars driving rapidly for nearly a mile. When the defendant attempted to turn into an intersecting highway, he was going at such a rapid rate of speed that his truck turned over, pinning him underneath. The doctor stopped his car, and two men who were nearby turned the car right side up and released the defendant, who had suffered some physical injuries in the accident. The doctor ordered the defendant taken to a hospital, inquired of the little girl where she lived, and then drove her to the home of her father. The little girl there told her father what she had told the doctor, and the father asked Dr. Barker to take her to the hospital, which was accordingly done. A physical examination there disclosed bruises upon her body, grease and dirt upon her private parts, and abrasions and bruises about her mouth and eyes.

Further evidence on the part of the state disclosed that the defendant was a dealer in secondhand household equipment, particularly stoves, and that he had and used such a car as was described in the state’s case; that on this particular afternoon he was seen in the vicinity of the place where the child was picked up by Dr. Barker: The defendant claimed that he was out in that section of the city and beyond in search of secondhand stoves to buy, but denied that he had anything to do with this little girl, and said that he never saw her before the preliminary trial on this charge. He said the overturning of his car was due to his going at a rather high rate of speed and the blowing out of one of his tires as he applied the brakes to make the turn at a corner. The evidence disclosed that the clothing which the defendant was wearing at that time was black, grimy, and greasy.

The defendant admitted that he had been convicted of three separate felonies, the last of which was on March 6, 1916, carrying a penitentiary sentence of ten years and that at the time of this occurrence he had been released on parole.

A teacher at the school which the prosecutrix attended testified that she had not been truthful on several occasions when interrogated about infractions of school regulations. Several witnesses testified as to the defendant’s good character for several years last past.

The defendant claims that the evidence is insufficient to support the verdict; that the prosecutrix was without corroboration, and was in a measure impeached by the evidence of the teacher under whose charge she had been for several months.

A careful analysis of the testimony convinces us that the evidence is sufficient. Unlike many other cases of this character, neither the parents of this little girl, nor any other person, had opportunity to coach the child to make untruthful statements damaging to the defendant before she told her story. The lady first picked, up by Dr. Barker almost immediately called his attention to the fact that some child was being hurt or abused; as rapidly as possible they went to where the child was, and the child then and there made explanations in keeping with her testimony as later given at the trial. The defendant came from near where the child came on to the highway, and drove away at the rate of about 35 miles an hour; in such haste, apparently to elude pursuit, that he caused his car to turn over, as before related. The fact that his clothing was dirty and greasy, that he was unkempt, and all the other circumstances shown, indicate that the child told the truth as nearly as she was able to relate her experience ; and her story was sufficiently corroborated by the physical facts and by the testimony of Dr. Barker. The court fairly instructed the jury upon every phase of the law, as raised by the issues, including the lesses offense of assault with intent to rape.

It is contended that there was prejudicial misconduct of counsel for the state in his argument to the jury, in the course of which he made this declaration:

“From the evidence you are guilty; anybody can look in your face and tell you are guilty. You sat there throughout the trial without a blush of shame upon your face for the crime you have committed; you are not a fit character to be turned loose on society.”

The defendant objected and excepted to this argument, and requested the trial court to withdraw the remarks thus made from the consideration of the jury. The court sustained the objection, and admonished the state’s attorney to desist from further like remarks.

We are not certain but that counsel for the state was properly within his rights in employing the language complained of. The declaration was prefaced by the words, “from the evidence,” and the defendant’s own testimony disclosed that he was a hardened criminal, having been previously convicted of three felonies, the punishment for which seemed to have had no deterrent influence on his subsequent conduct. Prather v. State, 14 Okla. Cr. 327, 170 P. 1176; Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Tucker v. State, 33 Okla. Cr. 302, 243 P. 998.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ARCH HUMPHREY v. STATE.
    No. A-5553.
    Opinion Filed May 15, 1926.
    (246 Pac. 486.)
    L. A. Wallace and D. E. Ashmore, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of statutory rape, and his punishment fixed at a term of 10 years in the state penitentiary.

The information alleges that the prosecutrix, Ollie May Roberts, is a female over the age of 16 years and under the age of 18 years, and of previous chaste and virtuous character, etc. The evidence is sufficient to prove an act of intercourse between defendant and the prosecutrix, with her consent. No evidence as to previous chaste and virtuous character of prosecutrix was offered by the state, and her character was not attacked by defendant. Defendant excepted to and assigns as error the court’s instructions Nos. 4 and 5. They are as follows :

“No. 4. You are therefore instructed that, if you believe and find beyond a reasonable doubt that the defendant, on or about the date álleged in the information, to wit, the 7th day of May, 1923, and in Okmulgee county, did knowingly, willfully, wrongfully, unlawfully, and feloniously accomplish the act of sexual intercourse with, carnally know and rape, the complaining witness, Ollie May Roberts, and if you further believe and find, beyond a reasonable doubt, that the said Ollie May Roberts is a female person over the age of 16 years and under the age of 18 years, and was between such ages at the time •of the alleged offense, and that she was not at the time the wife of the said Arch Humphrey, then, and in that event, the defendant would be guilty of rape, as charged in the information, and you should so find. On the other hand, if you have a reasonable doubt as to the guilt of the defendant, it will be your duty to give the defendant the benefit of such doubt, and acquit him.
“No. 5. You are instructed that an unmarried female of the age of 17 years is presumed to be of chaste and virtuous character, and this presumption stands until the contrary is proved.”

The second subdivision of section 1834, Comp. St. 1921,reads:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * * Second. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.”

The phrase “of previous chaste and virtuous character” is made one of the essential elements of the offense here defined. The information must allege it, and the state must establish the allegation by competent evidence. The presumption is that a female is of chaste and virtuous character. The presumption is also that a defendant is innocent, and the presumption of chastity does not overcome the presumption of innocence and take the place of proof of this material element of the offense. The law is that sexual intercourse accomplished by force on a female of any age, not the wife of the perpetrator, is rape. A female above the age of 18 years, whether chaste or not, may consent to an act of sexual intercourse. A female of previous chaste and virtuous character, between the age of 16 years of age and 18, is incapable of consenting to an act of sexual intercourse, and to despoil her of her virtue, although with her consent, is rape in the second degree. If however, she be unchaste, sexual intercourse with her consent is not made a crime. Under the age of 16, a female is incapable of giving consent whether chaste or unchaste. This statute has been considered in the following cases: Marshall v. Ter., 2 Okla. Cr. 136, 101 P. 139; Sayers v. State, 10 Okla. Cr. 233, 135 P. 1073; Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132; Diffey v. State, 10 Okla. Cr. 190, 135 P. 942; Davis v. State, 17 Okla. Cr. 604, 191 P. 1044; Dodson v. State, 30 Okla. Cr. 135, 235 P. 268; Bershears v. State, 32 Okla. Cr. 180, 240 P. 326. See, also, Butts v. State, 12 Okla. Cr. 391, 157 P. 704; Bishop on Statutory Crimes, par. 648.

In the case of Diffey v. State, supra, this court held that a female is presumed to be of previous chaste character, and the burden was on the state to prove chastity only after defendant had introduced some evidence to the contrary. This case was virtually overruled by the case of Davis v. State, supra, where the presumptions were discussed, and the court said:

“Under the statute the previous chaste and virtuous character of the prosecutrix in a prosecution for rape, as defined in the second subdivision of section 2414 (1834), is a material element of the offense, and must be alleged, and the state must prove in the first instance that she was of previous chaste and virtuous character. In our opinion this rule is more logical than the rule stated in the case of Diffey v. State, supra. * * *”

This holding was reaffirmed in the case of Dodson v. State, supra, and Bershears v. State, supra, and, in order that there may be no misunderstanding on the part of the trial court, that part of the Diffey 'Case, supra, which states that the burden is on the state to prove chastity only after defendant has introduced evidence to the contrary is expressly overruled. It follows that instructions Nos. 4 and 5 of the court’s charge were erroneous, and require a reversal.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.