text:
    MON QUICK v. STATE.
    No. A-8190.
    Feb. 19, 1932.
    (8 Pac. [2d] 689.)
    Miller & Miller, W. S. Paden, and Finis M. Walker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, referred to in this opinion as the defendant, was by information jointly charged with George Pryor, Bob Terrell, R. E. Longsdale, and Lewis Leach, of the crime of burglary, was tried separately, convicted, and sentenced to imprisonment in the state penitentiary for a term of six years, and appeals. Motion for new trial was filed, considered, and overruled, and defendant reserved an exception.

The defendant filed a motion to quash the special venire that had been summoned by Sam Johnson, the sheriff of Cherokee county, whose name was indorsed as a witness, on the ground that the sheriff was biased and prejudiced against the defendant; which motion to- quash the special venire was overruled, and defendant reserved an exception.

It is also urged by the defendant that the court erred in permitting, over his objection and challenge, certain jurors to sit in the cause who had served in the trial of the State of Oklahoma v. Bob Terrell, wherein Bob Terrell was prosecuted on a charge of assault to kill, and some of the evidence was introduced on behalf of the state in support thereof as was introduced in support of the charge herein.

It is further urged by the defendant that his peremptory challenges of the jurors A. M. Burchett, Charles Class, J. W. Brison, W. B. Upton, Boss Kay, and W. S. Gorhmley, should have been sustained for the reason they sat as jurors in the trial of the Terrell case; that in the trial of the Terrell case the facts were practically the same as in the defendant’s case, and most of the witnesses used were the same witnesses that were used in the Terrell case. The jurors named, on their voir dire, admit they sat in the Terrell case, and in that trial certain hats were introduced in evidence alleged to have been taken from the mercantile companies when their stores were burglarized, and that Mon Quick was mentioned in the evidence.

Boh Terrell was jointly charged with Mon Quick and others in the burglary of the mercantile stores in the town of Hulbert, and, when the officers went out to arrest Terrell on the charge of burglary alleged to have been committed jointly with the defendant in this case, Terrell is alleged to have assaulted G. R. Alberty, a deputy. It is also admitted in the testimony that the sheriff, Sam Johnson, made a list of the men to be called by the court bailiff on the special venire used by the court, and that Arch Hill, Dock Ross, Shelton Lawrence, W. W. Dawkins, and W. H. Gorhmley were in the list of jurors called on the special venire, and that the bailiff called such men for jury service on the special venire as were included in the list that was handed him by Sam Johnson, the sheriff.

All the testimony tends to show that when the assault was alleged to have been committed on deputy Alberty, for which Bob Terrell was tried, and in which trial the jurors herein named sat and heard certain testimony with reference to the burglary that had been committed in the town of Hulbert, for which this defendant was tried, that the sheriff and his deputy were looking for the parties alleged to have committed the burglary, and the jurors challenged admitted the defendant’s name was mentioned in the trial of Terrell. The defendant exhausted all his peremptory challenges, and was required to go to trial with the jurors named, who sat in the trial of Bob Terrell. It is contended by the defendant that he did not have that fair and impartial trial guaranteed to him by the laws of the state of Oklahoma, for the reason that the jury in the Terrell case heard certain controverted questions of fact in issue that were also in issue in the defendant’s case and developed by the same witnesses.

It is true the competency of the jury is a question to be determined by the court in the exercise of its sound discretion. This discretion should be determined by all the surrounding circumstances. The fact that the jurors stated on their voir dire they had formed no opinion and would act fairly and impartially is not alone a test of their competency. If it was so the court would be permitting the jurors to pass on their own partiality. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201; Moffitt v. State, 45 Okla. Cr. 440, 283 Pac. 1027.

It is obvious that where jurors have heard the evidence under their oath, from witnesses duly sworn and examined by the court, upon the controverted question in one case and formed an opinion from such evidence, such jurors are not in a position to pass impartially and uninfluenced upon such controverted question of fact, where the same witnesses again testify. Whenever the fairness or impartiality of a juror is called into question, the trial court must be clearly satisfied that such juror is fair and impartial, that he is not biased or prejudiced against the defendant on trial, and that he has not formed or expressed an opinion as to the guilt or innocence of the defendant, and it is the duty of the trial court to resolve all doubts on this question in favor of the defendant.

Section 2676, C. O. S. 1921, on the question of challenges for implied bias, subdivision 5, is as follows:

“Having served on the trial jury which has tried another person for the offense charged in the indictment or information.”

In this case, Bob Terrell was jointly informed against in the same information with the defendant and others. While it is true that the case in which the jurors complained of in this case sat in the trial of state of Oklahoma v. Bob Terrell, the charge was assault with intent to kill, but the record discloses by the statement of the jurors and the testimony, practically all of the witnesses used in the Terrell case were used in this case, and the facts as to the stores in Hulbert being burglarized were brought out in the Terrell case, and the defendant in this case was mentioned several times in the Terrell case.

After a careful consideration of the facts, we cannot say the defendant was accorded a fair and impartial trial by a jury of his peers. Every fact in the record tends to show that the jurors who sat in the case of State of Oklahoma v. Bob Terrell, and found a verdict of guilty, had passed upon practically the same facts as were brought out against this defendant.

There are many other errors complained of, but it will not be necessary to' consider them at this time. For the reasons stated, the case is reversed and remanded, with directions to the trial court to grant the defendant a new trial of the case before a fair and impartial jury.

EDWARDS and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    JIM VAN SCHUYVER v. STATE.
    No. A-8145.
    Feb. 19, 1932.
    (8 Pac. [2d] 688.)
    Mac Q. Williamson, for plaintiff in error.

      The Attorney General and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the district court of McClain county of the crime of larceny of domestic fowls, and his punishment fixed by the jury at imprisonment in the state penitentiary for one year and one day.

It is first contended that the court erred in refusing to permit counsel for defendant to introduce in evidence a certified copy of the judgment of Justice of the Peace W. G. Collier of Pontotoc county, in a replevin action involving the property rights to the chickens alleged to have been stolen from the prosecuting witness, for which this prosecution was instituted.

The purpose of defendant in introducing this evidence was to establish by the certified copy of the judgment that in the trial of the rights of property the jury had found that defendant, and not the prosecuting witness, was the owner of the chickens alleged to have been stolen.

Counsel for defendant admits that the authorities are numerically against them upon the admissibility of this evidence. The great weight of authority is also against the admission of such evidence.

The trial court properly excluded the copy of the proceedings had before the justice of the peace, as the same was inadmissible for any purpose. The court should have gone further and sustained the objection of the state to the introduction of any evidence of the proceedings had before the justice of the peace. The fact that the parties had litigated their civil rights to the-property in another court at another time was immaterial, as not tending to prove or disprove any issue in the case on trial.

It is next contended that the trial court erred in the instruction given on circumstantial evidence.

An examination of the record discloses that the instruction given by the court is vague and contradictory, and is not a correct statement of the law of the ease.

In Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, 266, in an opinion by Judge Furman, this court condemned ah erroneous instruction, and there set forth in full the correct instruction on circumstantial evidence, which reads as follows:

“You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt of the defendant — must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce ^ . your minds the reasonable moral certainty that the accused committed the offense charged against him. And you are instructed that when the circumstances are sufficient, under the rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence.”

In Baldwin v. State, 11 Okla. Cr. 233, 144 Pac. 634, this court set this instruction out in full and again placed its approval upon the same. See, also, Jackson v. State, 22 Okla. Cr. 354, 211 Pac. 1066.

Instructions on presumption of innocence, the credibility of witnesses, the burden of proof, prima facie evidence, and circumstantial evidence, together with others, are “stock instructions.” There is no excuse for trial courts going, astray in the giving of instructions upon any of these subjects.

For error in the giving of instruction No. 5 upon circumstantial evidence, the cause is reversed and remanded, with directions to the court to proceed with the trial of the case in accordance with this opinion.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    A. L. FAUBLE v. STATE.
    No. A-8161.
    Feb. 26, 1932.
    (11 Pac. [2d] 202.)

      John T. Levergood and G..C. Abernathy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (George H. Copeland, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of extortion, and was sentenced to serve a term of 5 years in the state penitentiary.

The case was closely tried by both counsel for the state and for the defendant. The charge was predicated upon section 2138, Comp. St. 1921. It charges in substance that defendant on October 6, 1929, with a felonious intent to extort money from one J. F. Buck, did send said Buck a certain letter quoted in full in the information, demanding said Buck pay $17,000 in currency, in a bundle to be put at a certain designated post near the end of the Canadian River bridge southwest of Shawnee. This letter purports to have been written by, and is signed, “Chicago Gangsters & Gunmen.” It is lurid and dramatic in tone, and reads more like a burlesque than the emanations of a sane mind. The testimony in support of the charge is equally bizarre. The plot suggests the most extreme of the tabloids or some sensational moving picture of gang activities. Very briefly stated, it is, in effect, that at the time charged defendant was operating a store in Shawnee. On October 6 six letters were written and sent to various persons. About the same date three other letters were written and likewise sent to persons all in or near Shawnee. All letters were of the same general tenor, and couched in much the same language, purporting to be from “Chicago Gangsters & Gunmen,” demanding the persons addressed put sums of money ranging from $3,500 to $30,000 at the designated places mentioned in the various letters. The witness Buck received the letter charged in the information through the mail, and at once sought the assistance of qualified experts and others, so that it was conclusively proven by circumstantial evidence that these letters were all written on the same typewriter, except one, and sent by defendant. On the night of October 12, defendant disappeared from his home, and the next day appeared at Wichita, Kan., reporting that he had been kidnapped by “Chicago gangsters and gunmen” from his store at Shawnee, conveyed to the vicinity of Wichita, and made to jump off a bridge into the river. He was returned to Shawnee, and October 15th made a lengthy statement detailing how certain gangsters and gunmen had attempted to extort $5,000 from him, and had in fact paid them this sum in six different payments, and required him to assist them in their attempts to extort money from various other persons. Also he kept a diary in which he made a record of much the same matter related by him. In this statement he denied having seen the letters. He testified in the trial of this case, and explained his fingerprint on the “Buck” letter by stating that the “gangsters and gunmen” wrote the letters in Ms store, dropped them on tbe floor, and required Mm to pick them up. He explained Ms failure to call for assistance at the various times these gangsters and gunmen were at his place and at other places by stating he was in fear of bodily injury, that he was kidnapped by these gangsters because he would not shoot one of the persons to whom a letter was addressed or shoot into the house of another. There is much more of this weird story not necessary to set out. Defendant’s story is so improbable that it taxes the credulity, and we are not suprised that the jury did not believe it.

The first contention is that the court erred in instructing the jury that the offense charged is extortion under the provisions of section 2138, Comp. St. 1921. Counsel insist the offense falls within the provisions of section 4, c. 2, Session Laws 1923-24; that the latter provision is a special provision within the meaning of section 1509, Comp. St. 1921, and the offense and punishment must be governed thereby, citing U. S. v. Tynen, 11 Wall. (78 U. S.) 88, 20 L Ed. 153; U. S. v. One Chevrolet Coupe (D. C.) 9 F. (2d) 85; Taylor v. State, 38 Okla. Cr. 350, 261 Pac. 978. An examination and comparison of section 2138, supra, and section 4, c. 2, Session Laws 1923-24, convinces us the latter enactment does not repeal or supersede the former; that it does not define the same offense. The former section defines a crime in the sending of a writing containing threats with the intent to extort money by mail or otherwise, to any person. The latter defines a crime in the sending to any person of any written or printed matter designed to threaten another with fear of life, bodily harm, or destruction of property. No reference is made in the latter enactment to- the extortion of money. As a matter of history, we may take judicial knowledge that chapter 2, Session Laws 1928-24, became law at about the height of the Ku Klux agitation, and was evidently directed to threatening, matter purporting to be sent by or in the name of that organization. The title of the act and the first, second, and third sections clearly indicate this general purpose. It follows the court did not err in instructing the jury the crime charged is under the provision of section 2138, supra.

It is next contended the evidence is insufficient to sustain the judgment, for the reason there is no' sufficient proof that defendant mailed the letter as alleged in the first part of the allegations of the information. It is alleged in the latter part of the information that defendant sent the letter through the United States mails. The statute does not require the sending be by mail; a sending in any other manner would constitute a crime, but Buck testified he received it by mail. The letter and the envelope in which it was inclosed were identified and admitted in evidence. The envelope was stamped and bore the postmark “October 6.” The letter as heretofore stated had upon it the fingerprints of defendant. Certainly this proof is sufficient. Defendant argues at some length that the proof of letters of like tenor sent at about the same time to other persons in and about Shawnee were disconnected offenses and inadmissible in the trial of the offense charged. If the sending of these other letters is disconnected and without relation to the offense charged, they are inadmissible. Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383; Frazier v. State, 31 Okla. Cr. 322, 239 Pac. 186. In the instant case, however, it is proven the various letters were written at about the same time by the same person, as a general scheme to extort money from different individuals. Defendant’s diary, in part introduced in evidence, records that all were written as a part of a general plan. Defendant in bis testimony stated all these letters were written at his store at the same time, as follows:

“* * * Q. What were they doing at yonr store at that time? A. They came in there and demanded that I let them have a typewriter, and took me in the back part of the store and I sit on the east side of the store, and Blackie and Blondie were the ones that came in there — they took the typewriter and worked on the west side of the store. There was some Three Minute oats cases there, and they took the typewriter and worked there on those cases, and they did some writing on the typewriter. They wrote a bunch of letters that night— I don’t know how many. Q. What then happened, after the letters were written, or while they were writing them? A. While they were writing letters there that night they had a case they carried with them, and they came in and they were laying letters and had some papers on this case, and laying some letters on this case, and they went • to kind of lift the case up, and I noticed those papers and letters slipped off on the floor. Q. What happened then? A. They made me go and pick them up and hand them to them. Q. Did you pick them up and hand them to them? A. I did. * * * Q. Did all the letters fall together, or fall around over the floor?. A. I was sitting over where the flour pile was and they were catecomered over there where those oats boxes were, and Blondie was doing the writing. When they fell off and went on the floor they scattered out, and they told me to. pick up those papers and letters and give to them. I picked them up and handed them over to them like that. (Indicating.) I didn’t pick them all up at once. I handed them to' them at different times, like that. (Indicating.) * * *”

A comparison of the contents of the different letters clearly discloses all were linked together as a part of one scheme or plan to extort money. All were admissible as tending to throw light on the offense charged, under the rule many times announced by this court. Montgomery v. State, 13 Okla. Cr. 652, 166 Pac. 446; Hollingshead v. State, 21 Okla. Cr. 315, 207 Pac. 108; Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656.

Lastly, it is argued that the court erred in refusing defendant permission to make a record. Sheriff Bert Lowery had testified that at a filling station defendant attempted to borrow a gun from him. He testified this was between 8 and 8:30 o’clock p. m. Defendant in his testimony denied any such conversation. He called Joe Grilles who worked at the filling station to prove that it was much earlier in the afternoon that Lowery was there. He was asked what conversation he had with Lowery and objection was sustained. Counsel then stated he wished to make an offer of testimony which the court refused. This refusal defendant contends is a violation of section 3065, Comp. St. 1921, and constitutes reversible error. The court at the time of excluding the offer stated he would permit proof that the witness was not at the filling station between 8 and 8:30, at the time he had testified. We fail to see how the conversation between the witness and Lowery was of any importance, but, being admitted, defendant had a right to refute it by any competent testimony, but the conversation between the witness and Lowery was not competent. Section 3065, supra, does not require a reversal for the failure to make a record of an offer of proof of immaterial and incompetent matter. Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341.

Upon a consideration of the whole record, we find no substantial error.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    HUBERT WILSON v. STATE.
    No. A-8211.
    Feb. 26, 1932.
    (8 Pac. [2d] 1118.)
    W. H. Hussey, Houston Reeves, and Mounts & Cham-berlin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of grand larceny, and sentenced to imprisonment for one year and one day in the state penitentiary, and appeals.

The record in this case was filed in this court on the 22d day of October, 1931; no- brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to' support the verdict of the jury.

The case is therefore affirmed.


text:
    TAFT SUNDAY v. STATE.
    No. A-8290.
    Feb. 26, 1932.
    (8 Pac. [2d] 1117.)

      J. Van Long, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of burglary, and was sentenced to imprisonment, at hard labor in the state reformatory for a period of two years, and appeals.

The record in this case was filed in this court on November 9, 1931; no brief has been filed in support of the defendant’s assignment of errors., A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    JOE WILLIS v. STATE.
    No. A-8309.
    Feb. 26, 1932.
    (8 Pac. [2d] 1117.)
    J. M. Huser and Billingsley & Stanley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of robbery with firearms and sentenced to serve a term of seven years in the state penitentiary at McAlester, and appeals.

The record in this case was filed in this court on December 2, 1931; no- brief has, been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    Ex parte A. H. CARNES.
    No. A-8313.
    Feb. 26, 1932.
    Rehearing Denied April 16, 1932.
    (8 Pac. [2d] 1116.)
    Robson & Moreland, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

A. H. Carnes, filed his petition in this court for a writ of habeas corpus, alleging he was illegally restrained of his liberty by John E. York, sheriff of Craig county, Okla., and confined in the county jail of said county.

Upon the filing of the petition, this court made an order admitting petitioner to bail in the sum of $500 to be approved by the court clerk of Craig county, and, upon approval of such bond, petitioner be released from custody until final hearing in this court.

Petitioner attempts to raise the question of the constitutionality of chapter 253 of the Session Laws of 1929. No briefs have been filed, and the court is unable to determine, from the pleadings, what the issues are.

For the reason stated, the petition is dismissed, and the petitioner remanded to the custody of the sheriff of Craig county.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    GEORGE W. GRITTON v. STATE.
    No. A-8295.
    Feb. 26, 1932.
    (8 Pac. [2d] 1116.)
    M. F. Priebe and H. J. Sturgis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of robbery with firearms, and sentenced to serve a term of five years and one day in the state penitentiary, and appeals.

The record in this case was filed in this court on November 10, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


author: DAVENPORT, P. J.

text:
    SON HICKMAN v. STATE.

      No. A-8246.
    Feb. 26, 1932.
    (8 Pac. [2d] 761.)
    J. B. Champion and Arthur Grunert, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to- as the defendant, was convicted of the unlawful possession of intoxicating liquor with intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days, and has appealed.

The testimony on behalf of the state shows that Charlie Hathcock, an officer, went to the home of the defendant with a search warrant and found no one at home. The back door was open and any one could go in that wanted to. The officer Avent in and searched the house and found a half gallon jar with no lid on, the contents of which the officer said was whisky. He did not taste the contents of the jar, but reached the conclusion by smelling it. The quantity of whisky found under the law is prima facie evidence of intent to sell. The defendant offered no evidence to overcome the prima facie evidence of intent to sell.

Several errors are argued by the defendant, but they are not sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    OLLIE PITTS v. STATE.
    No. A-8206.
    Jan. 23, 1932.
    Rehearing Denied Feb. 26, 1932.
    (8 Pac. [2d] 78.)
    J. A. Bass and James H. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of manslaughter in the first degree in the killing of Le Roy McKenzie, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of 25 years.

Defendant contends first that there is a fatal variance between the information, which charged the defendant with the killing of McKenzie by means of a pistol, and the evidence, which showed that death was produced by a knife wound.

In substance, the evidence of the state was that defendant struck the deceased several times with some blunt wooden instrument and then shot him; that two shots were fired, one in the body of deceased near the right nipple, coming out under the arm and penetrating the lung; that after the first shot deceased started to fall, and that deceased struck the pavement after the second shot and never moved after that, and that witnesses who reached him in a few minutes found him dead; that, when the officers arrived at the scene of the killing, defendant approached them, handed them his pistol, and said he had killed the deceased. The undertaker, a colored man, in testifying described the wounds as being a knife wound over the heart and gunshot wounds as above stated, with numerous bruises and contusions on the head. On cross-examination he was asked:

“Q. You say he was shot left of the right nipple? A. Yes, sir. Q. Did that penetrate any vital organ? A. Yes, sir, it would penetrate the lung. Q. Was that wound sufficient to cause death instantly? A. No, we have lots of cases — Q. (Interrupting) Just answer that. Was that shot sufficient to cause instant death? A. I don’t think so. The Court: I think the question calls for a yes or no answer. The objection is overruled. Answer the question. A. Well, Your Honor, Judge, lots of people are shot in the lung. Some die and some don’t. Q. It isn’t other people; the question is in this case, was this particular wound? A. I am not sure.”

Defendant contends that the state was bound to show that death was caused by the gunshot wounds, because it was so alleged in the information, while the knife wound in the heart necessarily must have been the fatal wound.

Defendant overtakes the fact that the undertaker did not make a critical examination of the body until more than 12 hours after the homicide, and does not testify that the knife wound had anything to do with causing the death of deceased.

Defendant cites 30 Corpus Juris, pages 135, 136; State v. Willson, 113 Or. 450, 230 Pac. 810, 233 Pac. 259, 39 A. L. R. 84, and numerous other authorities supporting the rule that the allegations and proof must correspond, and that, where the allegation is that death was produced by one instrument and the proof shows the death to have been caused by a different instrument, there is a fatal variance.

The authorities cited are in point in a case of that character, although that rule has been modified by later cases, but the case at bar does not fall within that rule for the reason that the evidence of the state supports the allegations of the information that death was caused by gunshot wounds. There is no evidence in the record that death was caused by any other instrument. Counsel merely infers from the fact that there was a knife wound over and into the heart that death must necessarily have come before the infliction of the other wounds and must have caused the death of deceased, while the evidence of the state is to the contrary.

There is another rule which defendant overlooks in his brief stated by Wharton on Homicide (3d Ed.) page 37:

“The test as to the guilt of the person inflicting the first wound in such case is whether, when death occurred, the first wound contributed to the event. If it did, although other independent causes also contributed, the causal relation between the unlawful acts of the accused and the death are made out. If the life current went out from both wounds, so that at the very instant of death the first wound was contributing to the event, the one who inflicted it is criminally responsible.”

In People v. Lewis, 124 Cal. 551, 57 Pac. 470, 45 L. R. A. 783, in paragraph 3, the Supreme Court of that state says:

“Defendant inflicted a mortal wound on the person of deceased by shooting him. After the shooting, and while in great pain, deceased cut his own throat, thereby hastening his death. Held, that if the wound inflicted by defendant contributed, concurrently with the wound inflicted by deceased, to cause death, defendant is guilty of the homicide.”

Wharton on Homicide (3d Ed.) page 45, it is said:

“Death following a wound from which death might ensue, inflicted with murderous intent, is presumed to have been caused by such wound, and the burden rests upon the party inflicting it to show to the satisfaction of the jury that death did not result therefrom, but from some other cause.”

The trial court on its own motion gave instruction No. 9, which reads as follows :

“You are instructed that if you believe and find from the evidence in this case, beyond a reasonable doubt, that the defendant, Ollie Pitts, in Oklahoma county, state of Oklahoma, on the 31st day of July, 1930, then and there being, did then and there unlawfully, wrongfully and feloniously, without authority of law and with a premeditated design to take the life of one Leroy McKenzie, shoot the said Leroy McKenzie with a certain 38 calibre pistol, then and there loaded with gunpowder and metal bullets and then and there inflicting upon the body of the said Leroy McKenzie by said shooting certain mortal wounds of which the said Leroy McKenzie did instantly die, as was intended by the said defendant, then and in that event it will be your duty to return a verdict finding the defendant guilty of the crime of murder; unless you should find that at the time of said killing the act of killing was justifiable, or you have a reasonable doubt thereof, in which case it will be your duty under the law to give the defendant the benefit of such doubt and acquit him, and you will so say by your verdict.”

Prom this instruction it is to be seen that the jury said in returning their verdict of manslaughter in the first degree that the defendant killed deceased with a pistol. Neither the state nor the defendant having offered any evidence that the deceased died as a result of any other wounds than gunshot wounds, there is no variance between the allegations of the information and the proof.

Defendant next urges that the court erred in overruling the demurrer of defendant to the evidence of the state.

This contention is without any merit.

Defendant next urges that the court erred in refusing to give certain requested special instructions offered by the defendant.

The theory upon which defendant argues that these instructions are erroneous is that, since the evidence of the state showed that deceased came to his death by means of a knife wound instead of gunshot wounds, therefore the requested instructions should have been given.

There is no evidence in the record to support the requested instructions, and it was not error for the trial court to refuse to give the same.

Next defendant contends that the court erred in a statement made to the jury with reference to' the admission of other wounds on the body of deceased, which statement reads as follows:

“This evidence was admitted with reference to the wounds on the body of the deceased, which included the wounds upon the head and ear, and the wounds in the breast, two wounds in the breast, upon the theory that the wounds were all produced at one and the same difficulty, by the use of different instruments, which is part of what is known in law as the ‘res gestae’ part of the same transaction. The court will overrule the objection of counsel for defendant and permit counsel to discuss that angle of it purely from the standpoint that it was part of the same transaction and grew out of the same difficulty. Exception reserved by defendant.”

In Foster v. State, 39 Tex. Cr. R. 399, 46 S. W. 231, that court said:

“Where the indictment for assault with intent to murder charged it as made with certain instruments other than an ax handle, it was not error to' admit evidence of an assault with an ax handle as a part of the res gestae, where the jury were explicitly instructed that they could convict only for an assault with the instruments named in the indictment.”

Defendant argues that this statement of the court is contrary to instruction No. 9, which required the jury to find beyond a reasonable doubt tbat defendant killed deceased by means of gunshot wounds.

In Acker v. State, 26 Ariz. 372, 226 Pac. 199, that court said:

“In prosecution for murder charged to have been produced by blows upon head, evidence of knife wounds found on deceased’s body held not only proper, but to help rather than hurt accused.”

In the body of the opinion the court said:

“Appellant assigns a number of errors which he says were committed in the trial of this cause. Evidence of the knife wounds found on the body of Enge was objected to, because death was alleged in the information to- have been produced by blows upon the head. The evidence of the knife wounds appeared in the testimony of the condition in Avhich Enge Avas found. The county attorney very properly gave to the jury all the evidence which seemed to throAV any light upon the means by which Enge came to his end, and the circumstances and conditions in which he was found. * * * The introduction of the evidence was not only proper, but it tended to help rather than hurt the defendant. This assignment of error is frivolous.”

In People v. Kafoury, 16 Cal. App. 718, 117 Pac. 938, that court said:

“Where, after accused had shot complainant and shattered her hip bone, he dragged her into an adjoining i'oom, threw her on the floor, and with his knees on her chest choked her until she lost consciousness, a physician who attended her immediately after the assault was properly permitted to testify that she suffered a miscarriage as the result of both assaults, in a prosecution for assault with intent to- murder; the second assault and its attending circumstances being essentially a part of the res gestae of the first.”

In the case at bar the court did know that the bullet wounds came from the defendant, but did not know positively that the knife wound did. The court did know, however, that it all occurred during this difficulty, but the court did not state that defendant did the stabbing. He merely stated that all of this happened during the same difficulty. Since the court had told the jury that they must find beyond a reasonable doubt that the death was paused by the gunshot wounds inflicted by defendant, he could not have been injured by the statement of the court that these other wounds were merely admitted as a. part .of the res gestae.

The other errors complained of by defendant arise out of his contention that the evidence of the state showed the death to have been caused by knife wounds rather than gunshot wounds.

Defendant next contends that the county attorney was guilty of misconduct in his argument to the jury.

An examination of the record discloses that in most of the matters complained of the county attorney was drawing proper deductions from the evidence. Bouie v. State, 9 Okla. Cr. 345, 131 Pac. 953; Spann v. State, 19 Okla. Cr. 9, 197 Pac. 531.

Defendant specifically complains of the following statement of the county attorney:

“Gentlemen of the Jury, the colored race have to be taught that they cannot go about and commit crimes.”

Defendant objected to this statement, and thereupon the court sustained the objection and instructed the jury to disregard the statement of counsel. Both defendant and deceased were negroes. This was not an appeal to race prejudice. While the statement was improper, it was not of such character as to require a reversal of the case.

In Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003, this court said:

“Although the county attorney may have indulged in improper remarks in his closing address to the jury, yet, if such remarks, when objected to, are withdrawn from the consideration of the jury by the trial court, and there is no reason to believe in the light of the evidence that the defendant suffered injury thereby, such remarks will not be ground for a new trial.”

The case was sharply contested. Counsel for defendant and the state have filed voluminous and able briefs in this court. We have carefully examined the record and the briefs and find no error in the record sufficient to require a reversal of the case.

The cause is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    CHICK ROGERS v. STATE.
    No. A-8314.
    March 4, 1932.
    (8 Pac. [2d] 1111.)

      Chas. H. Ruth, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the district court of Oklahoma county on a charge of larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 11 years.

The judgment in this case was rendered on the 5th day of May, 1931. The petition in error was filed on the 11th day of December, 1931, same being more than, six months after the date the judgment was rendered.

Section 2808, C. O. S. 1921, in part reads:

“* * * In felony cases the appeal must be taken within six months after the judgment is rendered. * * *”

The statute fixes the time for appeal. This court is without power to extend the terms of the statute. When, as in this case, the appeal is filed after the expiration of the six months’ period, this court does not acquire jurisdiction, but must dismiss the appeal. Peyton v. State, 41 Okla. Cr. 186, 270 Pac. 860.

In the case at bar, the appeal was filed within six months after the trial court had. overruled defendant’s second motion for a new trial on account of newly discovered evidence. The six months began to run at the date the judgment and sentence was pronounced, and not at the time the motion for a new trial was overruled. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Clark v. State, 18 Okla. Cr. 145, 193 Pac. 1008, 1009; George v. State, 21 Okla. Cr. 240, 205 Pac. 942; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560; Criner v. State, 37 Okla. Cr. 313, 258 Pac. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 Pac. 181.

For the reason stated, the attempted appeal is dismissed, and the cause remanded to the district court, with directions to enforce the judgment.

DAVENPORT, P. J., concurs. EDWARDS, J., absent; not participating.


text:
    LUTHER PRINCE v. STATE.
    No. A-8240.
    March 4, 1932.
    (9 Pac. [2d] 53.)
    J. Wm. Crawford, J. Val Crawford, and John P. Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of driving an automobile while under the influence of intoxicating liquor, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 60 days.

The evidence of the state was that defendant was driving a Ford coupe in the city of Ada, at a speed of about 65 miles an hour; that the ear was weaving from side to- side; that at the junction of two streets this car collided with an Oldsmobile sedan occupied by Mrs. Moore and Mrs. Williams; that after the accident defendant’s hat was found in the car; that defendant got out from under the steering wheel after the car was stopped; that when defendant was arrested, a short time afterwards, he was drunk and was staggering as he walked; defendant admitted that he started drinking at about 4 o’clock and took several drinks a short time before the accident, but denied that he was driving the car, or that he was drunk.

Defendant contends, first, that this evidence is insufficient tO' support the verdict of the jury.

The questions of whether defendant was drunk and of who was driving the car were to' be determined by the jury from the evidence. An examination of the evidence discloses that the jury were right in finding that defendant was drunk, and that he was driving the car.

In Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115, this court said:

“In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.”

Defendant next contends that the trial court erred in giving instructions Nos. 3 and 4', the particular objection being that the court erred in his definition of what constitutes intoxication.

An examination of the record discloses that defendant made no objection nor took any exception to the giving of the instructions at the time they were given to the jury. In the motion for a new trial appears an assignment that defendant objected to the giving of instructions Nos. 2 to 12, but there is nothing in the record to support this.

In Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006, 1007, this court said:

“Where no exceptions are reserved to the instructions of the court, none except fundamental errors will be considered.” See, also, Birdwell v. United States, 10 Okla. Cr. 159, 135 Pac. 445; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242.

Since no objections or exceptions were made or taken to the instructions here complained of at the time they were given, no question except one of fundamental error is raised in this appeal. The error complained of is not such a one as deprives the defendant of a constitutional or statutory right. It was the duty of defendant to call the trial court’s attention to any error in the instructions complained of, and he should have objected to the giving of the same and had his exception recorded at the time the instructions were given. While the instructions complained of are poorly drawn and might tend to leave the jury in doubt as to what constituted intoxication, yet such error is not fundamental and does not require a reversal of the case.

Drunken drivers are a menace to human life and should not be permitted to escape punishment upon technical grounds. The punishment assessed by the jury almost amounts to a miscarriage of justice. Defendant was extremely fortunate to escape with so light a sentence.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent; not participating.


text:
    GEORGE H. ROBSION v. STATE.
    No. A-8132.
    March 4, 1932.
    (9 Pac. [2d] 54.)
    Guy P. Horton and Frederick, Mounts & Chamberlin, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and D. R. Rutherford, Co. Atty. for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jackson county of the crime of murder in the killing of Elmer Carter, and his punishment fixed by the jury at life imprisonment in the state penitentiary.

The evidence of the state was that the defendant, with Vernon L. Eobsion, his brother, and Ernest Jackson, was traveling through the country in a truck, accompanied by a Chrysler roadster; that as they passed through Tillman county they were observed by L. F. Barbee, a deputy sheriff of that county, who knew them; that, from what he saw and knew, he believed that the defendants were violating the prohibitory liquor laws by transporting intoxicating liquor or a still; that Barbee called the marshal at Tipton and also the sheriff’s office at Altus; that Elmer Carter, a deputy sheriff of that county, answered the phone and was informed by Barbee that these parties were going into Jackson county, and that he believed they were violating the prohibitory liquor laws; that Carter called Joe Whitt, an officer of the state at Altus, to accompany him; that Carter and Whitt proceeded south from Altus on the main highway some five or six miles, where they met the truck going north on the highway, which they recognized by the description that had been given them,; that they turned their car around and came back following the truck; that they intended to follow the truck into' Altus and then make the arrest; that Vernon L. Eobsion and Ernest Jackson were armed with pistols and the defendant with a Winchester rifle; that there had been some conversation between defendant and his confederates about whether Officer Barbee would turn them in; that the car then following them was probably an officer’s car; that defendant a.t that time was standing on the running board of the truck with the rifle in his hand; that defendant was advised to put the gun away, but.he refused; that defendant told the driver of the truck to turn west on a byroad, and. that, if the car. followed them, they would know it was officers; that at the next comer the truck turned on to a byroad, and that defendant then said, in substance, that he had been punched by the officers all he was going to be, that he had lost all he was going to lose, and that before he would lose anything else he would shoot it out with them; that there was further discussion as to one of them taking the truck and the others trying to escape, but' defendant refused to do that; that the officers honked their horn and ordered them to stop and told them they were under arrest; that defendant stepped or was pushed off the running board of the truck, 15 or 20 steps from where the truck actually came to a stop; that defendant began to fire at the officers with this rifle from a ditch by the side of the road; that one shot struck Officer Whitt and rendered him unconscious; that Carter arrested one of the parties in the truck and brought him around in front of the officers’ can, where another shot from defendant’s rifle struck Carter about an inch to the right of the spinal column, and that the bullet ranged slightly upward and came out somewhere near the left side of his body; that Carter went about 125 yards from the scene of the shooting and died soon after reaching the house.

Defendant, testifying for himself, admitted that he had been engaged in the business of manufacturing whisky for more than a year; that he was caught on the 9th day of March by a federal officer, at Lawton; that later he made a still and made arrangements with his codefend-ants to go over into Texas and make some whisky; that they loaded their truck with the still and started for Quanah; that defendant followed the truck in his car; that he owned the rifle and took it with him; that he saw Officer Barbee’s car following the truck and he speeded up in his car and got away; that when the truck stopped he rolled off into a ditch and. somebody began to shoot; that one of the shots struck him in the back and another in the leg.

The defendant Ernest Jackson turned state’s evidence and contradicted the defendant in all of his evidence as to what occurred after the officers began to follow them.

Defendant contends, first, that the trial court erred in refusing to permit defendant to show the disposition of the state’s witness Whitt in regard to being quick to pull his gun on the slightest provocation, and his disposition to shoot and raise fackets.

An examination of the record discloses that the court refused to permit the witness to answer questions propounded by defendant’s counsel upon these matters. When the court sustained the state’s objection to the introduction of this evidence, counsel announced he was trying to make a record, but, upon the jury being excused, failed to dictate into the record what he expected to prove by the witness if permitted to answer the questions. The proper procedure is for counsel to dictate into the record what he expects to prove by the witness and save his exceptions to the ruling of the court thereon.

When a defendant seeks a reversal on account of alleged error on the part of the trial court in refusing to admit evidence offered, the record must show what this offered evidence was, so that the court can determine whether or not it was material and proper testimony, and as to whether or not defendant was injured by its exclusion. White v. State, 4 Okla. Cr. 144, 111 Pac. 1010; Warren v. State, 6 Okla. Cr. 2, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Francis v. State, 22 Okla. Cr. 287, 211 Pac. 433; Sewell v. State, 38 Okla. Cr. 224, 260 Pac. 84; Dobbs v. State, 39 Okla. Cr. 368, 265 Pac. 661.

No offer of proof being contained in the record and no ruling thereon, the petition presents no question for this court.

It is next contended that the officers had no right to make the arrest.

The theory of the state was that, since the offense which was being committed was a felony under the prohibitory liquor laws of the United States, therefore the officers had a right to make an arrest without warrant. The court in instruction No'. 15 told the jury that, if they found the defendant was engaged in the commission of a felony in violation of a federal statute, they had a right to make the arrest without a warrant.

The trial court erred in giving the instruction complained of, but the giving of the same was not reversible error. The mere fact that the trial court placed the right of the officers to make the arrest upon an improper ground does not require a reversal of the case. Section 2822, C. O. S. 1921.

The doctrine of harmless error is discussed in nearly every decision rendered by this court, but it is especially elaborated in the following cases: Ostendorf v. State, 8 Okla. Cr. 373, 128 Pac. 143; Jones v. State, 10 Okla. Cr. 216, 136 Pac. 182, 137 Pac. 121.

The letter and spirit of the law is that, if the defendant has had a fair trial, and if the court is satisfied that the conviction is sufficiently supported by competent evidence, and that the verdict against the defendant was not reached by error as a result of passion and prejudice, the conviction should be affirmed. Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387; Offitt v. State, 5 Okla. Cr. 49, 113 Pac. 554.

When an error has been committed upon the trial of a case, it is the duty of the court, upon investigation of the whole record, to determine whether or not defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal. Coleman v. State, 6 Okla. Cr. 253, 118 Pac. 594; Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518.

Defendant next contends that the court erred in giving instruction No. 10, which reads as follows:

“It is the duty of an officer in attempting to make an arrest to inform the party of his authority and cause of arrest if he is given an opportunity to do so, except, such is not required if the party is in the actual commission of a public offense at the time the arrest is attempted.
“It is the duty of all persons when he knows or has good cause to believe that an officer is attempting to effect his.arrest to submit to said arrest without resistance, unless it reasonably appears to' the party being arrested that the officer attempting the arrest was using unnecessary and unreasonable force and violence, and if it does SO' reasonably appear, then the person being arrested has the right to defend himself against such excessive force and violence even to the extent of taking life, if it appears reasonably necessary to him to so kill in order to ward off such excessive force.
. “An officer, in attempting a legal arrest, has the right and it is his duty to use all necessary and reasonable force to effect said arrest, but he has no right to use excessive or unreasonable force in attempting an arrest.”

In 2 R. C. L. 474, art. 32, the rule is stated:

“The right of a person to use force in resisting an illegal arrest is not unlimited. Unnecessary force may not be resorted to nor means of resistance adopted which are disproportionate to the effort made to take him into custody, and if such unlawful resistance culminates in a homicide, the party seeking to avoid arrest is guilty of manslaughter, and possibly of murder, for in resisting an illegal arrest no person lias a right to kill the officer or private individual attempting to make the arrest.”
“Where the arrest is made by a known officer and nothing is to be reasonably apprehended beyond a temporary detention in jail, resistance obviously cannot be carried to the extent of taking life.”
“As a general rule it may be stated that the fact that an officer or citizen who is killed while attempting to make an arrest exceeded his authority, does not reduce the killing from murder to manslaughter, if the person arrested had no valid reason to believe himself in immediate danger of great bodily harm.”

This court had this question under consideration in Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984, and there said:

“Under section 1350, Ind. T. Ann. St. 1899, a peace officer in making an arrest should inform the person about to be arrested of the intention to arrest him and the offense for which he is arrested; but this was not required where the person to be arrested knew the officer’s official character and was committing an offense in the officer’s presence.
“Where an officer, without a warrant, attempts to arrest for a misdemeanor believed by him to have been committed in his presence, but which in fact was not committed, the person to be arrested, if he knew the officer’s official character and his intention, is not justified, merely on the ground that he is innocent of the offense, in assaulting. the officer upon the latter’s first uttering a word, without the arrested party’s making any explanation, and without Ms either inquiring the purpose of the arrest or giving the officer an opportunity to state it.
“A person about to be arrested, who knows the officer’s official character and his intention to arrest him, cannot assault such officer upon his first uttering a word, and justify his act on the ground that the attempted arrest was illegal, in that the officer did not inform him of his intention to arrest and for what offense the arrest was to be made.”

In the body of the opinion, the court said:

“Even if plaintiff in error was not committing the offense for which the attempted arrest was made, yet if he knew the officers, knew that they were officers, and that they intended to arrest him, and had no reasonable cause to believe that they intended to do him any personal injury, he would not be permitted to shoot them upon their first uttering a word, 'and that without making any explanation himself and without either inquiring the purpose of the arrest or giviug them an opportunity to state it, in short, without knowing or caring by what authority they were acting. To hold otherwise is to place a premium upon resisting an officer. How did he know that they did not have a valid warrant? How did he know upon what evidence they were acting? How did he know but that they had reasonable ground to believe that he had committed a felony and were about tO' arrest him on that account? Of course, he may have known that he had not committed a felony, but his knowledge and the officer’s reasonable ground of belief are two different things; and the latter and not the former, under the statute, determines the legality of an arrest in such case. Assuming, as the jury could have found from the evidence, that plaintiff in error knew the officers and their intention to arrest him, then under the evidence for the prosecution he shot altogether too quickly, even if he was not committing that particular misdemeanor; and, if he was committing it, in the absence of reasonable cause for believing that serious bodily harm was about to be inflicted upon him, he had no right to resist the arrest at all. The verdict was not contrary to the evidence.”

In Heinzman v. State, 45 Okla. Cr. 305, 283 Pac. 264, this court said:

“The failure of a peace officer, in making an arrest for a felony, to inform in express terms the person sought to be arrested of his authority and the cause of the arrest, will not render his acts illegal, where the person about to be arrested knew the officer and that he was an officer and was acting as such.”

The evidence in the case at bar does not make out as strong a case in favor of the defendant as the record discloses in Roberson v. United States or Heinzman v. State, supra. Here the record discloses that the officers had honked their horn and had called to the defendant and his confederates and advised them that they were under arrest, and had gotten out of their car for the purpose of making the arrest, but, before the officers could do anything else to effect the arrest of defendant, he fired upon them, killing deceased and wounding Whitt, the other officer, so badly that he was for a time unconscious. Defendant and his confederates knew they were officers; knew they were committing an offense in the presence of the officers and knew the officers were attempting to arrest them.

Under the facts disclosed by this record, defendant had no legal right to resist the arrest, and having done so, and in the act of resistance killed Officer Carter, he is guilty of murder as found by the jury. It was not error, therefore, for the trial court to give the instruction complained of.

The defendant complains of other errors, but they are all without substantial merit.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    BILL STILES v. STATE.
    No. A-8306.
    March 4, 1932.
    (9 Pac. [2d] 58.)
    W. B. Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to< as the defendant, was convicted of the crime of assault with intent to commit rape, and his punishment fixed at one year’s imprisonment in the state penitentiary. Motion for a new trial was filed, considered, overruled, and exceptions saved, and defendant appeals.

Alice Mountain, the prosecuting witness, in substance testified:

“My home address is 5036 East Ninth street, Kansas City, Mo.; I was 15 years old on April 7, 1930; on the 19tb of February, 1931, I was visiting at the Pilgrim home about three miles southeast of Ramona, in Washington county, Okla.; Lucile Bailey and I went to Ramona about noon to get the mail; we were talking to Clarence Size-more in the town of Ramona when Donald Mock drove up in a Ford coupe; Clarence got some cigarettes and we all smoked one; about the time the car was ready to start the defendant, Bill Stiles, came and got in the car; we drove southeast to what is known as the Twin Bridges, drank some whisky, drove back through Ramona and crossed the river, and drove into Nowata county to a place where Clark Warnell lived; after staying at WarnelFs a short while, the defendant, Lucile Bailey, Donald Mock, and myself got in the car and drove toward Ramona and turned on a road leading northeast and crossed the river and came to an old vacant house, which one of the boys stated was where he lived; the defendant and I got out, and Donald Mock and Lucille Bailey went on down to the road crossing and turned the car around; the old house was vacant; the defendant put his hands on me while we were standing there together, and asked me if I was going to kick in, or something like that; I told him, no; we scuffled a little and fell on the ground with the defendant on top of me; the defendant did not at any time have intercourse with me. When we left the old house we drove to the little town called Oglesby, and drove around through the country there for some time and then went to Morris Green’s place; Morris Green got in the car, and just before we got to Oglesby got out and left us; said he was going home; that left the defendant, Lucile Bailey, Donald Mock, and myself in the car; shortly after we got to Oglesby, three deputy sheriffs came in and arrested the defendant and took him to Bartlesville.”

On cross-examination the prosecuting witness denied she told any one that she and Lucile Bailey had whisky with them. On redirect examination witness stated:

“The defendant got me down on the ground, but did not even get my dress up; be bad me down on tbe ground and started to unbutton bis pants and a car came by and we got up; I don’t know whether they saw him or not.”

Lucille Bailey corroborated tbe prosecuting witness in her testimony as to their being in Ramona about noon on tbe day of tbe alleged attempted rape, and getting, in the car with tbe boys whom they bad never met before and driving to tbe country; about tbe defendant and Alice Mountain stopping at tbe vacant bouse; Lucile stated she did not know what took place at tbe bouse while she and Donald Mock went down tbe road to turn the car. She further corroborates tbe prosecuting witness about getting back in tbe car and driving around over tbe country, going to Morris Green’s place, and Morris getting out of tbe car before they got to Oglesby; and also testified as to the arrest of tbe defendant and others in tbe town of Oglesby some time after dark in the evening after tbe alleged rape took place in tbe afternoon.

Clarence Sizemore corroborated tbe prosecuting witness as to tbe girls getting in tbe car at Ramona and driving away. It was further shown by Claud Watkins, who was driving tbe school bus, that be saw a boy and girl coming away from tbe old vacant bouse, but be did not know who they were. Tbe state introduced further testimony as to tbe arrest of tbe defendant at Oglesby.

Tbe testimony on behalf of tbe defendant tends to show he was not drinking about noon the day the alleged attempted rape took place in tbe afternoon. Donald Mock testified to meeting tbe girls in Ramona the morning of February 19, 1931—

“Tbe girls asked my name, where I lived and where I was going, and I told them I was just running around; I did not invite them to get in my car, they just climbed in.”

When the defendant came and got in the car and asked the girls where they wanted to go, they said, anywhere. The witness corroborated the girls as to the different places they drove before they got to the vacant honse; witness also' stated they stopped on the road so the girls could take a drink of whisky.

On cross-examination witness stated that when the girls got in the car they had a paper sack with something in it, which he later found was whisky; he did not know where they got it; witness did not know what took place between the defendant and prosecuting witness at the old house.

Mrs. Howard, who' was in charge of a store in Oglesby, testified as to' what took place the same evening the defendant was arrested. Other witnesses were called who testified to seeing the parties at different places during the day. The only witnesses who testified as to what took place at the old vacant house were the prosecuting witness and the defendant. The defendant, testifying in his own behalf, admitted being out with the prosecuting witness, Lucile Bailey, and Donald Mock. A great deal of conversation is detailed in the record which it is not deemed necessary to refer to in this opinion.

The defendant denies he put his hands on the prosecuting witness at the vacant house, and denies he pushed her down on the ground and got on top of her; he says she had fallen down and he assisted her to get up—

“I never did ask her if she was going to kick in, nor did I attempt to unbutton my pants; while we were on the trip the girls wanted to stop and have intercourse; I did not stop for the reason that I did not want to fool with them; I did not assault the prosecuting witness, nor did I make any effort to have sexual intercourse with her;”

This is all the testimony it is deemed necessary to set out in this opinion.

Several errors have been assigned by the defendant as grounds for reversal. The first assignment urged by the defendant is that the court erred in overruling his demurrer to the information. After an examination of the record we find the information stated facts sufficient to advise the defendant of the charge against him and the demurrer was properly overruled.

It is next urged by the defendant that the court erred in refusing to give his requested instruction submitting to the jury the issue of the included offenses of assault and assault and battery, which instruction was refused and exceptions allowed. No instruction was given by the court on the question of assault, or assault and battery.

Section 2740, C. O. S. 1921, is as follows:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

The rule is well settled that where there is any evidence tending to prove the commission of an offense, which is necessarily included in the offense charged, it is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense. Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200; Alexander v. State, 58 Tex. Cr. R. 621, 127 S. W. 189; State v. Hoag, 232 Mo. 308, 134 S. W. 509; Smith v. State, 150 Ark. 193, 233 S. W. 1081.

In Alexander v. State, 58 Tex. Cr. R. 621, 127 S. W. 189, 191, the Criminal Court of Appeals said:

“If tbe appellant took bold of tbe girl or put bis bands upon ber in a violent manner, yet if be did not bave tbe specific intent at tbe time that be took bold of ber to bave intercourse with her either with or without ber consent, then be would only be guilty of indecent familiarity, which, under the law, would be aggravated assault.
“Believing that tbe court was in error in not submitting tbe issue of aggravated assault to the jury, the judgment will be reversed.”

See Tayrien v. State, 33 Okla. Cr. 231, 242 Pac. 1061.

After a careful consideration of tbe evidence and tbe decisions of the court in tbe foregoing cases, we are convinced that the court erred in refusing to give tbe requested instruction, and as the case may again be submitted to a jury it is deemed advisable not to discuss tbe evidence further than to say that if tbe theory of tbe defendant and bis testimony is true, tbe defendant is entitled to bave tbe jury instructed upon tbe included offenses. Believing the court erred in not submitting tbe issue of assault, and assault and battery to tbe jury, tbe case is reversed and remanded, with directions to grant a new trial.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


text:
    LON CHEEVES v. STATE.
    No. A-8284.
    March 12, 1932.
    (9 Pac. [2d] 54).
    J. B. O’Bryan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the .State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of one quart of whisky with intent to barter, sell, give away, or otherwise furnish the same to others, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for 30 days.' Prom the judgment, the defendant appeals.

The testimony in this case shows that the officers went to the filling station owned by the defendant, which was situated about one hundred yards from the defendant’s home. In connection with the filling station, there was a cold drink stand. When the officers went to the filling station, the defendant was outside the building; they served .the search warrant upon him and went into the building; there were several parties inside the building; the officer-states the parties were drinking; a daughter of the defendant, who- was about fifteen years of age, went into another room with a sack in her hand and put it down in a corner; the officers took possession of it, and it contained whisky.

The defendant contends he was not running the filling station, that his father was in possession and operating the cold drink stand, as well as the filling station.

The question of the possession of the whisky was a question for the jury under the evidence, which is conflicting. The jury found the defendant guilty. This court will not disturb the verdict of the jury, where there is any competent evidence to support the same.

The judgment is therefore affirmed.

CHAPPELL, J., concurs. EDWARDS, J., not participating.


text:
    DOLPHUS QUINTON v. STATE.
    No. A-8301.
    March 12, 1932.
    (9 Pac. [2d] 51.)
    J. M. Roberts, for plaintiff in error.
    J. Berry King, Atty. Hen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of the crime of murder, and Ms punishment fixed by the jury at imprisonment in the state penitentiary for life.

The information charged that defendant on the 5th day of April, 1931, murdered one George Smoot, a young man about seventeen or eighteen years of age, at a dance at the home of one Will .Strain, in Pittsburg county; that defendant killed Smoot by stabbing him with a butcher knife; that Smoot was out on the screened porch, where there was no light; that defendant got a butcher knife in the kitchen of the house and stepped out on the porch to a bench where Smoot was sitting or leaning, and told Smoot to raise up; that, as soon as Smoot raised from the seat, defendant struck him with the knife, severing an artery; that Smoot died shortly afterwards from the wound.

Defendant testified that he did not know .Smoot and had no grudge against him; that he was so drunk he did not know what he was doing; that he did not remember anything after he left the dance floor, until somebody told Mm he had killed the boy.

It is apparent from this record that the defendant became voluntarily intoxicated. There is nothing in the evidence that entitles him to an acquittal. The most he could be entitled to under his own testimony would be a conviction for manslaughter in the first degree. The trial court instructed on murder, manslaughter in the first degree, the presumption of innocence, reasonable doubt, and told the jury they might acquit defendant.

Defendant first complains of the instructions of the court.

Most of the instructions complained of incorporate, the statutory provisions relative to murder and manslaughter. If they are fundamentally wrong, then the statutes themselves are fundamentally wrong.

Instructions No. 5, 6, and 7 complained of are sustained by Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668, and Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

Defendant made no objection to any of the instructions, nor saved any exceptions to the giving of the same, nor did he tender any other or different instructions he desired the court to give.

This court has repeatedly held that an objection that the court’s charge in a criminal case was on general lines and consisted of general propositions of law is unavailable on appeal, where' the defendant offers no specific instructions. Ralston v. State, 16 Okla. Cr. 634, 185 Pac. 831; Howard v. State, 39 Okla. Cr. 336, 265 Pac. 149; Sanders v. State, 46 Okla. Cr. 293, 287 Pac. 846.

In Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006, 1007, this court said:

“Where no exceptions are reserved to the instructions of the court, none except fundamental errors will be considered.” Birdwell v. United States, 10 Okla. Cr. 159, 135 Pac. 445; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Prince v. State, 53 Okla. Cr. 175, 9 Pac. (2d) 53.

The instructions given by the court on its own motion fully covered the law of the case, and were more favorable to the defendant than his own evidence warranted.

Defendant next contends that the trial court erred in refusing to permit Dr. H. A. Wilson, a duly qualified chemist, a witness for the defendant, to make a chemical anaylsis of tbe blood on tbe butcher knife used in the killing, for tbe purpose of determining whether or not it was human blood.

There was no issue in the case that the knife introduced in evidence was not the knife used in the killing. The state offered no evidence to show that the blood on the knife was human blood. What the state proved was that the knife introduced in evidence was used by defendant in the killing; and that it was in the same condition it was at the time it was taken from Strain’s house, immediately after the killing. There was no contention, so far as the evidence in this case is concerned, but that the deceased, George Smoot, was killed with the butcher knife, and that this defendant killed him. Whether or not the stains of blood on the knife were human blood was immaterial. The court was right in its ruling, for the reason that the knife had been introduced in the preliminary examination, and defendant had had ample opportunity between the time of the preliminary and the time of trial to have an analysis made of the stains on the knife, if he had so desired. Dr. Wilson testified it would take from four to twenty-four hours and maybe longer to make the analysis. No request was made to make this analysis before the trial. The trial was almost over when Dr. Wilson was introduced as a witness for the defendant. If Dr. Wilson had testified that the stains on the knife were not stains of human blood, it would have proved nothing, so far as the guilt or innocence of defendant was concerned, since there was no question but what defendant killed deceased with this particular knife.

Considering the entire record in connection with the assignment of error, it is evident that the defendant was guilty of laches in not having this analysis made, if he desired one to be made, before the trial commenced, and that no prejudice could have resulted to the defendant from the action of the trial court in denying his request to have an analysis made of the stains on the butcher knife.

Defendant next contends that the trial court erred in permitting George Bailey, a deputy sheriff, to testify in rebuttal after the case had been closed.

This witness was called by the state merely for the purpose of showing that the knife in question was offered in evidence at the preliminary hearing and was in the same condition at the time of trial as it was when offered at the preliminary.

This court has repeatedly held that the trial court may, in its discretion, permit either the defendant or the state to introduce further evidence after the case is closed. Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609; Ivey v. State, 21 Okla. Cr. 182, 206 Pac. 257.

It is further contended that the trial court erred in admitting testimony to the effect that the deceased was a peaceable, unoffensive person. An examination of the record shows that the trial court admitted testimony to show that at the time of the killing the deceased was unarmed; that he had made no demonstration of violence toward the defendant nor any threats of any such violence. This evidence was proper as a part of the res gestae; it always being relevant to show the circumstances under which the killing took place.

Finally, it is contended that the evidence is insufficient to support the verdict. This contention only raises the question of whether the evidence is sufficient to show premeditated design to kill.

The court instructed the jury that, before the defendant could be convicted of murder, it was necessary to show such. premeditated design on his part. Under the defendant’s testimony, he might have been convicted of manslaughter in the first degree. That issue was also submitted to the jury by proper instructions. By their verdict the jury found that defendant was not so drunk but that he knew what he was doing.

Section 1512, C. O. ,S. 1921, provides:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.”

Voluntary intoxication, such as is revealed by this record, is no excuse for murdering an innocent person. Not only does the law infer that the defendant intended the natural consequences of his act, but the defendant’s voluntary statement, made after the killing, together with the evidence of the state, is sufficient to’ establish an intent supporting the verdict of murder.

There being plenty of evidence to support the verdict, and, the trial court having properly submitted the law of the case to the jury, the judgment is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent; not participating.


text:
    TOM TEEL v. STATE.
    No. A-8216.
    March 12, 1932.
    (11 Pac. [2d] 197.)

    John P. Crawford and I. M. King, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pon-totoc county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of four years, with a recommendation that the sentence be suspended.

The evidence of the state was that Luke McNair, the deceased, Bob’ Beeves, Jennings Burris, Houston Munsey, Bob Walker, and Tom Cook were drinking and gambling near defendant’s home on the day of the homicide; that as the others left, defendant and deceased continued to gamble; that defendant struck deceased twice over the head with a gun and shot him four times; one bullet went into the upper right arm and ranged directly straight through towards the spine; one bullet we at into the back of the head, two inches behind the upper tip of the left ear, and came out in the top of the head; one glanced the end of the nose, went through the upper lip to the right and lodged in the lower jaw; one went in the left leg from the outside, just above the knee, and came out below the knee on the inside; that the wound in the back of the head was fatal; that the pistol used was a .32-caliber automatic; that shells thrown out by the automatic ejector went on two sides of where the body lay; that the body lay in a ditch and the shells were found on the bank, a couple of feet above and ten or fifteen feet distant from the place where the body lay; that defendant went to his house, about 50 yards away, and laid the gun on the mantel; that when the officers came, defendant told them he had killed him a man; that no weapon was found on or about the deceased.

Defendant, testifying for himself, claimed self-defense.

Defendant first contends that the evidence is insufficient to support the verdict of the jury.

Defendant was the only eyewitness to the killing. The physical facts contradict defendant’s claim of self-defense. The position of the body in the ditch, the place where defendant stood when he did the shooting, the wounds in the back of the head, front of the face, side of the body, and leg, all show that they were inflicted from different positions; the location of the shells thrown from the pistol ejected show that defendant shot deceased from at least two' directions; the hat with the hole in the brim showed that a shot was fired into deceased’s head from a position above him and at an angle. When all of the facts and circumstances are considered together, they are sufficient to support a verdict of manslaughter in the first degree.

It is next contended that the court erred in permitting the county attorney to cross-examine character witnesses offered by defendant for the purpose of showing him to be a peaceable and law-abiding citizen. The particular complaint is that the court permitted the county attorney to' ask character witnesses on cross-examination if they had heard of specific acts of anger, disorderly conduct, and criminal offenses, and, if, having heard of those things, they still believed defendant’s reputation as a peaceable, law-abiding citizen to be good.

In Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242, this court said:

“A witness to good character may be asked on cross-examination whether or not he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character he is called on to prove, not for the purpose of establishing the truth of such facts or charges, but to test the credibility of the witness and to determine the weight to be given his evidence. The extent of such cross-examination is a matter resting in the sound discretion of the trial court, and a judgment of conviction will not be reversed because the trial court permitted such a cross-examination unless a clear abuse of such discretion is shown.”

In Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797, this court said:

“On cross-examination of witnesses as to defendant’s character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased.”

Defendant also< complains that the court refused to permit him to show that deceased had a gun on the day prior to the homicide.

The trial court permitted defendant wide latitude in establishing the quarrelsome, violent disposition of deceased and the fact that he went around armed. While evidence that deceased was armed on the day before the homicide was admissible, yet this evidence could not have changed the result of the trial, since the deceased was unarmed at the time he was killed, and the evidence of his being constantly armed and being quarrelsome and violent all being before the jury.

Defendant next complains of instruction No. 7 of the court.

The court on its own motion gave the usual instructions in a case of this character, and they were as favorable to the defendant as the facts in the case and the law required.

Defendant next contends that the court erred in receiving and pronouncing judgment on the verdict, which reads as follows:

“We, the jury drawn, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant guilty of manslaughter in the first degree as charged in the information herein and assess the punishment of the defendant at (4) years in the State Penitentiary, and that the jury recommend to the judge that the sentence be suspended.”

Under this assignment, defendant contends first that it was error for the court to receive and read the verdict of the jury; that this duty should have been performed by the clerk. There is nothing in the record to support this contention of defendant.

Defendant also urges that it was error for the court to receive the verdict in the absence of his counsel.

There is nothing in the record affirmatively showing the absence of counsel. This only appears in the motion for a new trial.

In 12 Cyc. at page 534, the rule is stated:

“It is not error to receive the verdict of the jury when defendant’s attorney is absent, if defendant is present and does not object.”

The constitutional right of accused to have assistance of counsel may be waived, and is waived by failure to demand the presence of counsel. Baker v. State, 9 Okla. Cr. 62, 130 Pac. 820.

In 27 R. C. L. § 18, at page 846, the rule is stated:

“The verdict may be received in the presence of the prisoner, although in the absence of, and without notice to, his counsel. When it is the fact that the counsel had the privilege of being in court, if he wished, when the verdict was received, and his accidental absence at that time was not owing to any order or any action of the court, or any conduct by the counsel or parties on the other side, the judgment will not be reversed because of his absence.” Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459; Beaumont v. State, 1 Tex. App. 533, 28 Am. Rep. 424; Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273, 30 L. R. A. 803, 52 Am. St. Rep. 665.

It is next contended that it was evidently the intention of the jury that defendant should not be imprisoned at all, since the jury recommended a suspended sentence.

In Knopp v. State, 49 Okla. Cr. 416, 295 Pac. 228, 229, this court, speaking of a verdict with a similar recommendation, said:

“If the jury had assessed a punishment greater than the minimum, the recommendation of the jury might have appealed to the trial judge, although he was not under any legal obligation to follow the same. While the verdict is informal, it is not illegal, and was sufficient to authorize the court to pronounce judgment thereon.”

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent; not participating.


text:
    ED. AMEY v. STATE.
    No. A-8018.
    March 12, 1932.
    (9 Pac. [2d] 49.)
    Park Wyatt and Thos. C. Wyatt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of the crime of forgery in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of seven years.

The record discloses that the defendant was an aged and ignorant negro, unable to read or write, and an habitual drunkard; that a banker had taught him to draw a picture which represented his signature, instead of signing by mark as is usually done in such cases; that defendant was the owner of an undivided interest in his father’s homestead in section 30, township 9, range 4, in Pottawatomie county; that defendant was the owner of 40 acres of land in his own right in the same section, township, and range; that defendant went to the store of Archer & Bry-den in the city of Shawnee to purchase some clothing on the installment plan; that E. C. Jordan, the manager of the store, filled out an application for credit, and that defendant drew his signature “Ed. Amey” on the application ; that Archer & Bryden had sold the defendant goods before this, and the records of the office showed his name to be Ed. Amey; that defendant was not allowed to take the goods away that evening, but was told to come back the next day; that the question of the description of these premises came up, and Jordan told defendant he would have to have this description so that they could find him if he failed to pay; that defendant went to an office over the Shawnee National Bank and saw some men with a map, and they looked up the numbers of the land and gave him a piece of paper with the figures 30-9-4 on it, and also wrote a letter to the manager; that defendant went back the next day to get his clothes, and delivered this letter and slip of paper to the manager; that thereupon the manager struck up a deal to buy a part of the royalty, and called in one Gallagher to share in the deal; that it was there agreed that defendant was to sell Gallagher two acres for $75 per acre and trade Jordan ten acres for a secondhand automobile; that thereupon the parties went to an abstractor, who looked up the records and prepared deeds covering, 12 acres of land owned by Alex Amey in section 30-9-4; that the abstractor did not ask defendant where his land was located, nor if that particular description was the land owned by him, but prepared the deeds from information he obtained from his own records, and did not read the deeds to defendant after they were prepared ; the evidence of the state then was that the defendant signed such deeds with the name Elix Amey. Defendant denies that he signed any such name or executed any papers at all; that he explained to Jordan and Gallagher at the store that the royalty was under the homestead of his father, and that his sister was his guardian and he could not make any deed. There is considerable evidence in the record, not only that defendant was an habitual drunkard, but particularly that he was intoxicated on that day.

Defendant testified that Jordan gave him $2 to get some whisky with; that he came back to the store and drank this whisky, and that Jordan then took him in a car and they went out and got some whisky, and that he had no recollection of going to' anybody’s office or executing any papers. That part of the evidence that defendant was an habitual drunkard was stricken by the court on the motion of the state.

Some significant facts are that Jordan, the prosecuting witness, personally knew the defendant; knew his name was Ed. Amey, and had his genuine signature to a purchase contract taken not more than twenty-four hours before this deed was executed, and while negotiations were pending to buy this royalty; knew that the defendant was an ignorant negro, unable to read or write. He took the initiative in the royalty deal and had the papers prepared. He knew that the real estate he was getting, a deed to was in the name of Alex Amey, and that that was not defendant’s name. He accepted the deed purporting to be executed by Elix Amey, when the records disclosed that the real estate in question was owned by Alex Amey, and induced defendant to execute such deed as Elix Amey while well knowing that defendant’s true name was Ed. Amey. Jordan testified that Gallagher made a check to defendant for $150 which Jordan cashed, and, after deducting $3 to cover recording expenses, gave the balance to' defendant. Defendant denied.that he received any money. Defendant is corroborated in this by the fact that, when he was arrested shortly after the deal was closed, he was too intoxicated to drive a car, and, when searched, no money was found upon him. The secondhand car traded by Jordan was taken back by him on the same day. The whole record indicates that Jordan and Gallagher were anxious to get hold of what they believed to be valuable royalty, and undertook to obtain the same from this ignorant negro. The state offered no evidence of intent to defraud anybody. Defendant, testifying for himself, denied any knowledge of the making of the instruments or any transaction whatever with Jordan and Gallagher with intent to defraud.

Defendant contends first that the court erred in taking from the jury all the evidence offered by him to prove that he was an habitual drunkard. Defendant also contends that the court erred in refusing to permit him to show that he was the owner of a tract of land in the same section, township, and range.

This evidence was clearly competent for the purpose of showing the intent of the defendant, since his evidence was that he had no recollection of executing, any papers, and had no intent to defraud any one.

Defendant earnestly contends that this case falls within the 5th subdivision of section 1511, C. O. S. 1921; that the ignorance and incapacity of the defendant being undisputed, and the fact that he owned other real estate in the same section and his being unable to read or write, and that prosecuting witness procured the execution of the deed to himself — all of this establishes the fact that the defendant committed the act under an ignorance or mistake of fact, which disproves any criminal intent.

Defendant was prosecuted under section 2070, C. 0. S. 1921, which provides:

“Any person who, with intent to defraud, forges, counterfeits or falsely alters * * * any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be transferred, conveyed or in any way changed or affected. * * *”

Section 1511, C. O. S. 1921, provides:

“All persons are capable of committing crimes, except those belonging to> the following classes: * * *
“Fifth. Persons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse from punishment for its violation.”

In 16 Corpus Juris, § 53, the rule is stated:

“Where one under ignorance or mistake of fact commits an act which but for such mistake would be a crime, there is an absence of malicious or criminal intent which is generally an'essential element of crime, and the general rule therefore is that such ignorance or mistake of fact will excuse one from criminal responsibility, provided, always, there is no such fault or negligence on his part as supplies the element of criminal intent * * * The guilt of an accused man depends on the circumstances as they appear to him.”

In Coury v. State, 20 Okla. Cr. 8, 200 Pac. 871, in the body of the opinion at page 873, this court said:

“Unlike the statutes of most other states, our statutes, in section 2094, R. L. 1910, provide that all persons are capable of committing, crimes except those belonging to certain classes, and in subdivision 5 of said section except ‘persons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse from punishment for its violation.’ As a general rule, a reasonable and bona Me belief in the existence of facts which, if they did exist, would render an act innocent is a good defense, but there are apparent and real exceptions to this rule. Clark on the Law of Crimes (2d Ed.) p. 100; 16 Corpus Juris, 84-86; 8 R. C. L. 60.”

There being no proof on the part of the state to establish a criminal intent, and it appearing affirmatively from the whole record that whatever the defendant did was because of ignorance or mistake of fact, the evidence was insufficient to support the verdict of the jury.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


text:
    FRED PHIPPS v. STATE.
    No. A-8294.
    March 12, 1932.
    (9 Pac. [2d] 1119.)

      Darnell & LaRue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county for the unlawful transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $60 and imprisonment in the county jail for a period of 30 days. The information was filed on the 8th day of May, 1928, charging the offense to have been committed on the 7th day of May, 1928. Under the law, county courts are required to have terms of court in January, April, July, and October of each year. No terms of court were held in August or October, 1929, nor in January, April, July, or October, 1930. The case was set for trial in December, 1930, but, for some reason not appearing in the record, was not tried, although defendant was there pressing his motion to dismiss the case for failure to bring it to trial at the next term of court. No terms of court were held in January or April, 1931, and the case was not brought to trial until the 9th day of July, 1931. No sufficient reason is shown for the failure of the court to convene the regular terms, nor can there be any excuse for such long and unreasonable delay in bringing a case to trial. Failure to hold court amounts to denial of justice in some cases, and to license to commit crime in others.

Whatever may have been the cause, when the case was finally brought to trial the state offered no competent evidence connecting the defendant with the, commission of the offense. For that reason the cause is reversed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent ; not participating.