text:
    ALONZO POPE v. STATE.
    No. A-4100.
    Opinion Filed Aug. 15, 1923.
    (217 Pac. 498.)
    (Syllabus.)
    1. ' Trial — Proceedings Where Evidence of More Than One Offense— Election Between Acts. In a prosecution for statutory rape where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix, upon which a conviction could ■ be based, the trial court should either require the prosecution to elect upon which of such acts it will rely for a conviction, or else treat the act of which the state first introduces evidence to tend in any degree to prove the offense as an election, and should give a specific instruction limiting the jury to a consideration of such particular act as a basis for conviction.

      2. Same> — Conviction Where Several Acts Without Election Required Erroneous. In a prosecution for statutory rape where the prose-cutrix testifies to eight different acts of sexual intercourse accomplished with her by the defendant, all within three years prior to the commencement of the prosecution, and the trial court by an instruction permits the jury to base its conviction on any one of such eight acts without requiring the state to elect and without treating the first act proved as an election, and the verdict is a general one finding defendant guilty of the crime charged without reference to the date of its commission, the judgment will be reversed, as it cannot be determined from the ree-cord upon which particular act of sexual intercourse the conviction is based.
    3. Witnesses — Cross-Examinations — Immoral Relations Between Witness and Party for Whom Called. It is the general rule that questions may be put to a witness on cross-examination for the purpose of ascertaining his relations, business, social, or otherwise, with the accused, and in this connection it is always proper to show by such examination the fact of immoral relations subsisting between the witness and the party for whom called; but such examination shall be confined to immoral relations subsisting near to the time the witness testifies.
    Appeal from District Court, Major County; James B. Cullison, Judge.
    Alonzo Pope was convicted of rape, and lie appeals.
    Reversed and remanded.
    Bishop & Roberts, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 10th day of March, 1921, the county attorney of Major county filed in the district court of said county an information charging Alonzo Pope with the crime of rape in the second degree, alleged to have been committed upon one Tillie Hobby, an unmarried female person of the age of 16 years, etc., and not the wife of the said Pope.

Trial was had in April, 1921, resulting in the conviction of the defendant of statutory rape in the second degree with punishment assessed at imprisonment in the state penitentiary for a period of five years. Judgment was rendered on the 19th day of April, 1921.

The information charged the offense to have been committed on or about the-day of July, 1920. The prosecuting witness, Tillie Hobby, testified that she was 17 years of age on the 5th day of March, 1921; that during the summer of the year 1920 she was living with her grandmother Hobby in Major county, Okla., about 16 miles east of the city of Taloga; that she would go into the pasture every evening to drive up the cows for milking, and that the defendant Alonzo Pope, who lived on an adjoining farm, would meet her in the pasture; that Pope first had sexual intercourse with her on the first Sunday in June, 1920. After detailing the circumstances under which this first act of sexual intercourse took place, the prosecuting witness then testified that about a week after that the defendant again had sexual intercourse with her in the same pasture at a time when she was out after the cattle, and the prosecuting witness further testified that the defendant accomplished eight separate and distinct acts of sexual intercourse with her at different times ranging over a period of time from June until December, 1920, but the prosecuting witness testified positively that defendant accomplished no act of sexual intercourse with her during the month of July, 1920. The prosecuting witness also testified that as a result of these acts of intercourse she became pregnant and was at the time of the trial pregnant; that her period of menstruation stopped in the month of December, 1920. The defendant as a witness denied having sexual intercourse with the prosecuting witness on any occasion, and further offered proof of his absence from home during July, 1920.

At the conclusion of the evidence the court, among other instructions, gave the following:

"No. 6. The court instructs the jury in this case that the state elects to prosecute the defendant Alonzo Pope herein, for the crime of rape in the second degree, committed upon the person of Tillie Hobby, a female under the age of 18 years, and over the age of 16 years, and who was not the wife of the defendant Alonzo Pope. And in this connection, the court instructs you that, if you are satisfied from the evidence, beyond reasonable doubt, that the, defendant Alonzo Pope had sexual intercourse with one Tillie Hobby, on or about the - day of July, 1920, and that the said Tillie Hobby was then under the age of 18 years and over the age of 16 years, and not the .wife of the defendant, it is your duty to find him guilty.”

After counsel for the state and defendant had presented their respective arguments to the jury and the jury had retired for deliberation upon the verdict and had continued to so deliberate until the hour of 3 o’clock April 14, 1921, the jury returned into open court for further instructions, and in this connection the case-made contains the following recital:

"Thereupon, to wit, on said April 14, 1921, at the hour of 3' o’clock p. m. of said day, said day being a day of the regular April, 1921, term of the district court of Major county, Okla., court being duly and regularly in session, the jurors in the charge of the sworn bailiff return into open court, counsel for the state and for the defendant being present, and the defendant Alonzo Pope being present, in person.
"Thereupon, it is admitted by counsel for both the state and the defendant that all of the jurors that have been impaneled, selected and sworn to try the issues in said cause, are present and in the box.
"Thereupon, the court inquires if the jurors in said cause have agreed upon a verdict, and said jurors announce that they have not been able to agree upon a verdict and request that the court instruct them further in said cause.
"Thereupon, the court further instructs said jurors as follows, to wit:
“ ‘No. 19. Gentlemen of the jury, the court instructs you that the precise time at which the offense was committed by a defendant charged with the crime of rape in the second degree, unless time is a material ingredient of the offense charged, need not be stated in the indictment or information. And in this connection, the court instructs you that, if you find from the , evidence in this ease, beyond a reasonable doubt, that the prosecutrix, Tillie Hobby, was under the age of 18 years, and of previous chaste character, at the time said offense was committed, if you find that an offense was committed, that then and under these circumstances, time would not be a material ingredient of the offense charged.
“ ‘The court further instructs you that it is sufficient, if it shall clearly appear to the jury beyond a reasonable doubt, that the offense charged was committed at some time prior to the finding of the information, and within the statutes of limitation.
“ ‘And you are further instructed that the time begins to run at the time of the finding or filing of the information in this ease.
“ ‘And if you find from the evidence in this case, beyond a reasonable doubt, that the offense charged was committed by this defendant within three years prior to the filing of said information, and that the said Tillie Hobby was under the age of 18 years and over the age of 16 years, and of previous chaste character, that then and under these circumstances it will be your duty to find the defendant guilty.’
“By Mr. Boberts: Objections by defendant: The defendant Alonzo Pope objects and excepts to instruction No. 19, given by the court to the jury.
“By the Court: Gentlemen of the jury, you may now retire to your jury room in company with the sworn bailiff and proceed with your deliberations.
“Thereupon, the jurors in said cause return to their jury room and deliberate further upon their verdict in said cause:
“Thereupon, to wit, on April 15, 1921, the same being a day of the regular April, 1921, term of the district court of Major county, Okla., the jurors in saidi cause return into open court with their verdict in said cause, the state and the defendant Pope being represented by their respective counsel, as heretofore.
“Thereupon, it is admitted by counsel for both the state and for the defendant Pope that all of the jurors that have been impaneled, selected and sworn to try the issues in said cause, are present and in the box, and that the defendant Alonzo Pope is present in person.
“Thereupon, the court inquires of the jurors if they have agreed upon a verdict in said cause; the said jurors answer in the affirmative.
“Thereupon, the court clerk reads the same, and the said verdict was and is in words and figures as follows, to wit:
“ ‘We, the jury, drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the information and fix his punishment at five years in the penitentiary. (Signed) W. H. Rucker, Foreman. (Indorsed.) ’
“Thereupon, the court inquires of the jurors if the verdict, as read, is their verdict and if they are all still satisfied with it, and the jurors all answer in the affirmative.
“By Mr. Roberts: The defendant Alonzo Pope excepts to the verdict returned by the jury.
“By the Court: Gentlemen, you are excused from any further consideration of this case.”

It is contended in this court that the giving of instruction No. 19 constituted reversible error in this case. With this contention we are impelled to agree.

The information charged the offense to have been committed on or about the-day of July, 1920. The prosecuting witness testified positively that the defendant accomplished no act of sexual intercourse with her during the month of July, 1920. Time was not of the essence of the offense. Therefore the prosecution was not compelled to rely upon an act of sexual intercourse committed in the month of July, 1920, but could rely upon proof of any specific act of intercourse committed) by the defendant upon the prosecuting witness within any time within three years immediately preceding the commencement of the prosecution. The state first offered proof of an act of intercourse alleged to have been committed on the first Sunday in June, 1920, but the state did not stop with proof of this particular act of intercourse, but also offered evidence tending to prove other distinct acts of intercourse alleged to have occurred at different times during the month of June, 1920, and as late as December, 1920, none of which, however, the prosecutrix testified occurred during the month of July, 1920.

Under instruction No. 6, as above quoted, the jury was toldi that the state elected to prosecute the {defendant for rape in the second degree alleged to have been committed on or about the- day of July, 1920. After deliberating for several hours, the jury was unable to agree upon the defendant’s guilt under such instruction and returned into open court for further instructions, at which time the trial judge gave instruction No. 19 above quoted. Under instruction No. 19 the jury were not limited to any particular act of sexual intercourse committed at any specified time, but were told that a conviction of the defendant could be had under the charge, if the jurors believed the defendant guilty of any act of sexual intercourse committed upon the prosecuting witness within three years immediately preceding the filing of the information, provided other material elements of the offense were found to exist. Proper objection was made and exception taken to the giving of this instruction.

In the case of Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811, this court held:

“In a prosecution for statutory rape, where evidence is introduced of acts of sexual intercourse between the prosecu-trix and the defendant other than the one charged in the information, for the purpose of proving the act charged, it is the duty of the court upon motion of the defendant, made when the state rests its case, to require the state to elect upon which one of the several acts it intends to rely for a conviction. ’ ’

Also in the case of Smith v. State, 20 Okla. Cr. 124, 201 Pac. 663, it is held:

“In a prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix] upon which a conviction could be based, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else have treated -the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as a basis for a conviction.
“In this state a person may be tried for and convicted of only one offense at a time. Rape is not a continuous offense, and whilst in a prosecution for statutory rape proof of other acts of intercourse, occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations between the parties, etc., the. conviction must be based solely upon one of such acts and not all of them, and it is error prejudicial to the defendant, where no election of acts is required, to instruct the jury in the effect that a conviction should result from proof beyond reasonable doubt of any of such acts. ’ ’

In the body of the opinion in the Smith Case.it is said:

“(2) Rape is not a continuous offense. On the evidence in .this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction. 22 R. C. L. p. 1227, § 63. This the court did not do, but, on the contrary, instructed the jury that — if they believed from all the evidence beyond a reasonable doubt ‘that the defendant accomplished sexual intercourse with the prosecutrix, Leola Mary Smith, in said Beaver county at any time within three years from the filing of said information, that the said Leola Mary Smith was not at that time the wife of said defendant, and was at that time under the age of 14 years, then your verdict should be that the defendant is guilty of rape in the first degree.’
“It is apparent that on this instruction the jurors were permitted to base a conviction upon any of the numerous acts of sexual intercourse testified to by prosecutrix as occurring between her and the defendant before she reached the age of 14 years, all of which occurred within three years from the filing of the said information. Manifestly one of the said jurors may have believed the defendant guilty, basing his belief upon proof of an act of sexual intercourse testified to by prosecutrix, entirely different from that upon which another of said jurors based his belief, so therefore, while the twelve jurors may have unanimously arrived at the conclusion that the defendant was guilty of the crime charged,there is no way of determining by this record that each of said jurors based his conviction of guilt upon the same act of sexiial intercourse. See Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811.
“It has been repeatedly held in this state that a person may be tried for, and convicted of, only one offense at a time, and while proof of other acts of intercourse, in a prosecution for statutory rape occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations existing between the parties, etc., the conviction must be based solely upon one of such acts and not all of them. Tracy v. State, 13 Okla. Cr. 643, 166 Pac. 442.
“An examination of this record discloses that this case was not tried with reference to any particular act of sexual intercourse alleged to have been committed by the defendant with the prosecutrix on or about the 1st of August, 1918, or any other particular act of sexual intercourse occurring within three years preceding the filing of the information and at a time when the prosecutrix was under the age of 14 years. But the trial court in not requiring the state to elect upon one such particular act, and in submitting the question of guilt on all of such acts, clearly committed reversible error, as this conviction could be pleaded in bar of a subsequent prosecution based on any .definite act of sexual intercourse alleged to have occurred between the defendant and the pros-ecutrix in Beaver county, prior to the date that the prosecu-trix reached the age of 14 years.”

The holding in the case of Montour v. State, supra, has long been the established law of this state. While no request was made in this ease to require the state to elect as between the different alleged offenses, we think it was clearly the duty of the court where such election was not requested to treat the act of which the state first introduced evidence tending in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as the basis for a conviction. This was not done, but, on the contrary, the jury by' instruction No. 19, supra, were permitted to convict on any one of the eight different acts of sexual intercourse testified to by the prosecuting witness. The verdict was a general one finding the defendant guilty of the crime charged without reference to the date of its commission. It is apparent, therefore, that this court cannot determine from this record upon, which particular act of sexual intercourse this conviction was and is based. Under the authority, therefore, of Montour v. State and Smith v. State, supra, this judgment must be reversed.

Certain other alleged errors are complained of, among which is the admission of alleged incompetent evidence. This assignment of error relates to the testimony of one Mrs. Wil-liford, a daughter of the defendant, admitted over objection and exception of defendant’s counsel. This witness was permitted on cross-examination to testify that several years prior to that time she had prosecuted! her father for incest, and that such prosecution had resulted in his conviction.

It is a general rule that questions may be put to a witness on cross-examination for the purpose of ascertaining his relations, business, social, or otherwise, with the accused, and in this connection it is always proper to show by such examination the fact of immoral relations subsisting between the witness and the party for whom called. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132.

For the purpose of thus affecting the credibility of the witness, such examination should be confined to immoral relations subsisting at the time between the witness and the accused. In this case there was no attempt to prove that these immoral relations continued to exist up until the time of the trial, but on the contrary the evidence disclosed that the immoral relations existed a number of years prior to this trial and that in the interim the daughter had married and moved away from her father’s home and had not been living in his home for a number of years prior to the trial. So that it is apparent that the purpose of this cross-examination was not to elicit the fact of immoral relations subsisting between the witness and the defendant, but merely to prove the defendant’s prior conviction of a similar offense to that charged. This evidence was elicited before the defendant took the witness stand in his own behalf and before any announcement was made that he would become a witness in his own behalf. While this court has repeatedly held that the defendant may be impeached by showing his prior conviction of crime, such evidence must be limited to impeachment purposes and should not be permitted to be introduced prior to the time the defendant takes the witness stand in his own behalf.

For reasons stated, the judgment of conviction is reversed, and the case remanded to the district court of Major county, with instructions to grant the defendant a new trial and for further proceedings not inconsistent with this opinion.

BESSEY, J., concurring.

DOYLE, J., absent, not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SIMEON JACKSON v. STATE.
    No. A-4203.
    Opinion Filed Aug. 18, 1923.
    (217 Pac. 902.)
    Appeal from County Court, McCurtain County; J. D. Parks, Judge.
    Simeon Jackson was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed, and cause remanded.
    Ledbetter & Hudson, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal .from a judgment of conviction rendered against plaintiff in error, Simeon Jackson, in the county court of McCurtain county on the 5th day of January, 1922, in accordance with a verdict of a jury finding the said Jackson guilty of the offense of transporting intoxicating liquors, and assessing his punishment at a fine of $50 and imprisonment in the county jail for 30 days.

The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the court clerk and county attorney, as required by section 2809, Comp. Stats. 1921 (section 5992, Rev. Laws 1910), nor summons in error issued and served on the Attorney General, or its issuance and service waived by that officer, as provided in section 2814, Comp. Stats. 1921 (section 5997, Rev. Laws 1910), and no general appearance entered: by the Attorney General within the statutory period for taking this appeal. The record and files in the office of the clerk of this court in this case support the motion. The appeal is therefore dismissed, in accordance with the opinions of this court in the following and other cases: Kirk v. State, 21 Okla. Cr. 34, 204 Pac. 465; State v. Hudson, 21 Okla. Cr. 475, 204 Pac. 133.

Cause remanded, with directions to the trial court to carry into effect the judgment and sentence.


author: MATSON, P. J.

text:
    J. R. WEST v. STATE.
    No. A-4103.
    Opinion Filed Aug. 18, 1923.
    (217 Pac. 1067.)
    (Syllabus.)
    1. Trial — Question of Fact or of Law — Plea of Former Jeopardy. Upon the interposing of a plea of former jeopardy in the trial of any criminal case, a question of fact ordinarily' arises, which should be submitted to the jury for determination, unless the court is satisfied as a matter of law that the plea interposed is insufficient to raise the question of former jeopardy. In such event it is not error for the court to refuse to submit said plea to the jury if as a question of law it is insufficient.

      2. Courts — Justices of the Peace — Jurisdiction as to Felonies and Misdtemeanors. In criminal actions the jurisdiction of the justice of the peace in this state is twofold: First, in a prosecution for a felony a justice of the peace sits only as an examining and committing magistrate; second, in prosecutions for a misdemean- or within the jurisdiction of a justice of the peace, he sits as a trial court.
    3. Same — Jurisdiction in Felony Cases Defined. Justices of the peace have no jurisdiction as courts to try felony cases. In felony cases the jurisdiction of a justice of the peace is either to discharge the accused or else hold him to answer the felony charged or some other felony; (which evidence may disclose the accused to have committed) within the territorial limits of the county.
    4. Same — In Preliminary Examination no Jurisdiction to Find Accused Guilty of Included Misdemeanor. In a preliminary examination for a felony, a justice of the peace has no jurisdiction to find the accused guilty of the included misdemeanor and assess punishment therefor.
    5. Former Jeopardy — Insufficiency of Plea. Plea of former jeopardy examined, and held insufficient in law to state facts constituting a bar to the prosecution.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    J. R. West was convicted of maiming, and he appeals.
    Affirmed.
    The plaintiff in error, J. R. West, was convicted by a jury in the superior court of Okmulgee county, sitting at Henryetta, on a charge of maiming, and on the 19th day of April, 1921, was sentenced to serve a term of five years and ten months in the state penitentiary.
    The information contained two counts, the first of which charged jointly J. R. West and Foley Thrasher with having assaulted! the prosecuting witness, G. W. Thomas, with an automatic pistol and knucks, with intent to kill. The second count charged them with the crime of maiming said witness. "When the case was called for trial, a severance was granted, and thereupon the state elected to first try the defendant West. His plea was self-defense and also that he had been formerly convicted for the same offense before a justice of the peace for an assault and battery, which involved the same facts and transactions relied upon by the state for a conviction under the information filed in the superior court.
    At the conclusion of all the testimony, on motion of the county attorney, the court dismissed the first count in the information, and the ease was submitted to the jury on the charge of maiming. The court instructed the jury not to consider the defendant’s plea of former conviction, and withdrew from its consideration all evidence introduced with reference to such plea. The charging part of the second count of the information is as follows:
    “That the said J. R. West and Foley Thrasher at the same time and place, and as a part of the same transaction, set out in count 1 of this information, did unlawfully, willfully and! feloniously and without authority of law and with a premeditated design then and there to. injure one G. W. Thomas, did then and there, acting together and in concert, inflict upon the person of him, the said G. W. Thomas, a certain injury, which then and there and now disfigures his personal appearance and disables the left eye of him, the said G. W. Thomas, by then and there, acting together as aforesaid, striking the said G. W. Thomas with certain dangerous weapons, to wit, an automatic pistol, and knucks, which .they, the said J. R. West and Foley Thrasher, then and there had and held in their hands, with the unlawful and felonious intent of them, the said J. R. West and Foley Thrasher, and each of them, to then and there wound, maim and disfigure him, the said G. W. Thomas, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

      The errors assigned are as follows:
    I.The plea of former jeopardy in this ease wais an issue of fact for the jury, and the court erred in determining it as a question of law, over the objection of plaintiff in error.
    II. The court erred in giving instruction No. 11 over the objection of plaintiff in error.
    III. The court erred in refusing to give instructions Nos. 1 and 2 requested by plaintiff in error, the refusal of which plaintiff in error duly excepted.
    IV. The court erred in refusing and ruling out competent and legal evidence offered by plaintiff in error at the trial of this cause, to which ruling plaintiff in error duly excepted.
    V.The court erred in overruling the motion of plaintiff in error for a new trial.
    E. P. Maley, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore and John Barry, Asst. Attys. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). Summarizing the gist of this appeal, counsel for plaintiff in error at the opening of his brief says:

“While plaintiff in error has set out five separate as- • signments of error, we propose to present and argue same upon the sole proposition of law that the trial court committed a reversible error by refusing to submit defendant’s plea of former jeopardy to the jury as an issue of fact, instead of deciding same as an issue of law.”

The said plea is as follows:

“Comes now the above-named defendant, J. R. West, and for a second and further plea against the information filed herein against him, pleads and alleges that heretofore he was duly informed against by the county attorney of Okmulgee county, Okla., by information and complaint filed in the justice of the peace court before G. P. Reynolds of Henryetta, Okla., charging him with the identical and same offense or offenses as is set forth in the charge in the information herein, and that thereafter, to wit, on the 22d day of December, 1920, before the said justice of the peace a hearing was had upon said complaint at which hearing the state was represented by G. L. Bynum, assistant county attorney of Okmul-gee county, Okla., and that defendant being present in person and by counsel, E. M. Carter, a full and complete hearing was had thereon, and that at the conclusion of said hearing the said justice of the peace found the defendant, J. R. West, guilty of assault and battery, and assessed the fine at $50 and costs.
“Therefore this defendant pleads former conviction or jeopardy of the same offense contained in the information herein against him, as a bar to the prosecution of this action. ’ ’ ,

In Newton v. State, 14 Okla. Cr. 226, 170 Pac. 270, this court held:

“Upon the interposing of a plea of former jeopardy in the trial of any criminal case, a question of fact ordinarily arises, which should be submitted to the jury for determination, unless the court is satisfied as a matter of law that the plea interposed is insufficient to raise the question of former jeopardy. In such event it is not error for the court to refuse to submit said plea to the jury if as a question of law it is insufficient.”

The above holding was cited with approval in the following cases: Harris v. State, 17 Okla. Cr. 69, 175 Pac. 627; Jeter v. District Court of Tulsa County et al., 87 Okla. 3, 206 Pac. 831.

It follows therefore that if the plea of former jeopardy showed on its face that, as a matter of law, it was insufficient, there was no error committed by the trial court in withdrawing evidence offered in its support from consideration of the jury and in refusing to submit such issue to the jury-

The question presented necessarily involves an inquiry into the jurisdiction of justices of the peace in this state.

The written plea of former jeopardy pleads a conviction for an assault and battery growing out of the same transaction resulting in the maiming for which the plaintiff in error was here convicted, and if the plea on its face presented a valid conviction for such offense, it was good in law under out statutory provisions. Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64.

But did said plea on its face present to the court as a bar to this prosecution a valid conviction for assault and battery committed as part of the same transaction? We think not. The plea in bar presents a conviction of assault and battery in a prosecution before a justice .of the peace “wherein the defendant was charged with the identical and same offense or offenses as set forth in the charge in the information herein.”

The information filed in the superior court of Okmulgee county on which this conviction is based was originally in two counts, charging the felonies, first, of “assault with intent to kill,” second, of “maiming.” The trial and conviction were on the' second count only.

Justices of the peace have no jurisdiction as courts to try felony cases. Hamlin v. State, 8 Okla. Cr. 187, 120 Pac. 704.

As to felony eases justices of the peace sit solely as examining and committing magistrates. , Hamlin v. State, supra.

In felony cases the jurisdiction of a justice of the peace is either to discharge the accused or else hold him to answer the felony charged or some other felony (which the evidence may disclose the accused to have committed) within the territorial limits of the county. Section 18, art. 7, Const.; sections 2490 to 2509, inclusive, Comp. Stats. 1921.

A justice of the peace has no jurisdiction, either without or by consent of the prosecuting witness or even the' county attorney, to render a judgment in a preliminary examination for a felony finding the accused guilty of the included misdemeanor and assessing punishment against accused therefor, although such misdemeanor where properly charged was within the jurisdiction of the justice of the peace court. In felony cases the justice of the peace sits as an examining and committing magistrate, not as a trial court.

Where one accused of a felony is before a justice of the peace for preliminary examination, the statute specifically provides :

“Such examination must be confined to some felony committed against the statutes of the State and triable in that county.” Section 2491, Comp. Stats. 1921.

We quote the following from Newton v. State, supra:

“Sections 17 and 30 of article 2 and section 19 of article 7 of the Constitution provide respectively:
“Section 17-, art. 2:
“ ‘No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment of indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.’
“Section 30, art. 2:
“ ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.’
‘ ‘ Section 19, art. 7:
“ ‘All judges of courts of this state, and justices of the peace, shall, by virtue of their office, be conservators of the peace throughout the state.
“ ‘The style of all writs and processes shall be “The State of Oklahoma.” All prosecutions shall be carried; on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall conclude, “Against the peace and dignity of the state.” ’
“The first section above quoted requires a prosecution instituted in a justice of the peace court to be upon a duly verified complaint. The next section secures the people against unlawful seizures or arrests, and provides that the property and person of citizens of this state shall not be molested by warrant of arrest except upon probable cause supported by oath or affirmation. The latter section requires all criminal prosecutions to be in the name of and by the authority of the state of Oklahoma. Undoubtedly these provisions were placed in the Constitution for a purpose. Nobody would have a right, therefore, to submit a plea of guilty to an offense committed against the peace and dignity of the state of Oklahoma without there had been first filed a duly verified complaint, charging such person with such offense. The latter provision would require also that the pros-edition of said offense should be by the duly qualified officers of the state chosen for said purpose. These sections would prevent and do prevent a person from voluntarily appearing and pleading guilty to an offense without any verified complaint being first filed against him.
“Section 6176, Rev. Laws 1910, provides:
“ ‘In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant, the complaint must be submitted to the county attorney, or drawn by him and indorsed as follows: “I have examined the facts in this case and recommend that a warrant do issue,” and then filed with the court. If the action be brought without such indorsement the complaining witness must file with the court a bond to be approved by the court in a sum not less than fifty dollars, conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so indorsed by the county attorney.’
“The statute clearly establishes a rule to make effective the foregoing constitutional provisions. It provides a method whereby a private citizen may institute a criminal prosecution by a verified complaint, but if said complaint is not submitted to the county attorney with a statement of the facts that can be proven, and if it does not receive his indorsement that he has examined the facts and recommends that a warrant shall issue, then the prosecuting -witness is required to put up a bond for costs as a deterrent against malicious or unwarranted prosecutions. In this way prosecutions by duly verified complaint in the name of and by the authority of the state are secured. A prosecution cannot be said to be in the name and by the authority of the state where the person guilty of the offense procures his own prosecution without notice to the prosecuting officers of the state or to the prosecuting witness, and without a duly verified complaint. A justice of the peace is not permitted to accept a plea of guilty under such circumstances. These provisions of the statutes safeguard the liberty of those accused of a crime by preventing malicious and unauthorized private prosecutions, and at the same time guarantee to the people of the state that fraudulent prosecutions may not be obtained by the defendant or with his connivance. Evans v. Willis, County Judge, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258; State v. Simpson, 28 Minn. 66, 9 N. W. 78, 41 Am. Rep. 269; State v. Cole, 48 Mo. 70; State v. Wakefield, 60 Vt. 618, 15 Atl. 181; State v. Goetz, 65 Kan. 125, 69 Pac. 187.”

In this case the plea of former jeopardy shows on its face that whatever punishment was assessed against this plaintiff in error in the proceeding before the justice of the peace was in a preliminary examination for a felony alleged to have been committed by him and another. There is no allegation in the plea that plaintiff in error was ever charged in' the justice of the peace court, by verified complaint, with the misdemeanor of assault and battery, that he ever entered a plea thereto, or was lawfully tried and convicted in the justice of the peace court of that offense. While jurisdiction of the person of a defendant may be conferred by consent, jurisdiction of the subject-matter of a criminal action may never be conferred by consent. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

The plea of former conviction was also insufficient in law because-it shows upon its face that the justice of the peace had no jurisdiction to render the particular judgment here pleaded in a preliminary examination for felony.

“Jurisdiction to render the particular judgment and sentence imposed is as essential to its validity as jurisdiction of the person and the cause.” Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591.

Supplemented by the record of conviction, the plea of former conviction is of no greater efficacy.

The justice of the peace, contrary to his usual customs, made an extended journal entry of the disposition of the case, which journal entry is as follows:

‘ ‘ This matter coming on for hearing this date, at 10 a. m., Gr. L. Bynum, assistant county attorney, being present, representing the state, and E. M. Carter, present, representing the defendant, this case having been continued fromi time to time since the 3d day of November, 1920, both parties announcing ready for trial, witnesses sworn, and evidence taken. At the conclusion of the hearing, and on recommendation of the county attorney, the defendant, J. R. West, was found guilty of assault and battery, and his punishment assessed at a fine of $50, and costs of this action. George P. Reynolds, Justice of the Peace.”

This fine, it appears then from both the plea and the record, was assessed as part of the preliminary examination into the felony. As heretofore stated, the justice of the peace had no jurisdiction to render any such judgment in that proceeding. Hamlin v. State, 8 Okla. Cr. 187, 120 Pac. 704; State v. Morgan, 62 Ind. 35; State v. Odell, 4 Blackf. (Ind.) 156.

For the reason therefore that the plea in bar disclosed on its face that a judgment of conviction was pleaded in bar, which said judgment was eoram non judice and void, the said plea of former conviction was insufficient to constitute a legal bar to the instant prosecution, and no error was occasioned by refusal of the trial judge to submit the plea as an issue of fact to the jury. Newton v. State, supra.

The other assignments of error not covered by the assignments here discussed are abandoned.

Judgment affirmed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


author: BESSEY, J.

text:
    KARL HOFFMAN v. STATE.
    No. A-3936.
    Opinion Filed Aug. 18, 1923.
    (218 Pac. 176.)
    (Syllabus.)
    1. Larceny — Acts of Cleirk in Secreting Packages in Store and Removing in One Parcel as One Transaction — Grand Larceny. Where a clerk in charge of merchandise takes different articles from stock and wraps them in parcels and secretes them in the store, with the intent of appropriating them to his own use, and finally gathers the different parcels together and places them in one parcel and carries them from the store, such appropriation may be considered as one transaction, supporting a charge of grand larceny where the aggregate value of the articles taken exceeds $20.
    2. Lairceny — Proof of Value Insufficient to Support Verdict of Grand Larceny. Where the only proof of value, supporting a charge of grand larceny, of a multitude of small articles is indefinite, and in the nature of mere estimates of value by the prosecuting witness, and the aggregate amount of such estimates is $21.05, the proof is insufficient to support a verdict of grand larceny
    3. Larceny — Evidence of Value of Articles Stolen at Other Places Admissible. If the evidence of value at the place of the larceny of common articles of merchandise is not clear and explicit, evidence of their value at other places sufficiently near and in like situation may be received as will reasonably tend to establish a fair value of the articles taken.
    4. Evidence — Price Lists of Wholesale Dealers Admissible to Determine Value of Articles Stolen. As a general rule, current price lists and catalogues from wholesale dealers may be used to establish the cost of articles sold to retail dealers; and where the selling price by the retailer is cost plus a percentage of that cost as profit, such cost price as shown in lists and catalogues may be used to aid in determining the retail market value of the articles.
    Appeal from the District Court, Mayes County; A. C. Brewster, Judge.
    Karl Hoffman was convicted of grand larceny, and he appeals.
    Reversed and remanded.
    John C. Graves, for plaintiff in error.

      The Attorney General, for the State.
   BESSEY, J.

Karl Hoffman, plaintiff in error, here designated. the defendant, was, by information filed in the district court of Mayes county charged with the larceny of certain tools and articles of hardware taken from the hardware store of H. C. Henson at Locust Grove on March 24, 1920. At the trial, September 21, 1921, by a verdict of the jury, defendant was found guilty of grand larceny, and his punishment assessed at confinement in the state penitentiary for a period of eight months. Subsequently, the court pronounced judgment upon the verdict, directing that the defendant be confined in the reformatory at Granite for a term of eight months. From this judgment defendant appeals.

The information charges, and specifically describes, the taking of 41 different tools and pieces of hardware, ranging in value from 15 cents to $2.75, and alleged to be of the aggregate value of $22.30.

There are really but two questions involved in this appeal: First, whether the taking of these several articles was a series of petty larcenies, or whether it constituted but one transaction; second, whether the aggregate value of the articles taken exceeded $20.

The defendant had for some months been employed as a clerk and general helper in the store of H. C. Henson at Locust Grove. Defendant admits that, from time to time during the period of his employment, he took from the stock of hardware belonging to Mr. Henson, the tools and articles described in the information, wrapping them in different parcels and placing them in different parts of the store in hiding; that finally all of these parcels were gathered together and put in one parcel, taken to his lodging place and put into a suitcase belonging to defendant. Defendant’s employer, Henson, suspected that the defendant might be purloining some of his goods and discharged him from his employ. While defendant was on the way to the train with his suitcase, to go to his home in a neighboring town, Henson caused the defendant to be arrested, and the articles in controversy were seized by the officers and returned to Henson, who placed them back in stock in his store.

From the foregoing circumstances and some other testimony appearing in the record, we think that the taking of these several tools and articles constituted but one transaction, so that if the value of the stolen articles aggregated more than $20, the verdict of grand larceny was supported by the evidence. 17 R. C. L. 6. Woods v. People, 222 Ill. 293, 78 N. E. 607, 7 L. R. A. (N. S.) 520, 113 Am. St. Rep. 415, 6 Ann. Cas. 736.

Section 2104, Comp. Stat. 1921, provides that grand larceny is committed in either of the following cases: First, When the property taken is of value exceeding $20. * * *

In an early case, Filson v. Territory, 11 Okla. 351, 67 Pac. 473, Chief Justice Burfor'd, speaking for the court, said: "The reasonable market value * * * is the true criterion for determining the grade of larceny. ’ ’ It has been held in other jurisdictions that the word "value,” when used in a statute relating to larceny, is equivalent to the term "market value.” It follows, then, that the expression “market value” relates to buying and selling, so that another equivalent expression might be said to be "reasonable selling price.” Vol. 3 Words & Phrases, Second Series, pp. 300-302; vol. 4 Words & Phrases, Second Series, "Value”; 17 R. C. L. "Larceny,” § 3.

The record discloses that H. C. Henson was the only person engaged in the hardware business in Locust Grove and that he handled hardware purchased from the Simmons Hardware Company exclusively. Since Mr. Henson was the only person handling hardware in this town, does it necessarily follow that the selling price established by him was the true- and only correct criterion of the “value” of the different articles taken?

The value of the several articles taken, as fixed by the prosecuting witness, the only witness who testified as to their value, was rather vague and indefinite. In a general way he testified that the values as fixed by him were the original cost prices on the various articles, with from 33 1-3 to 35 per cent, added for profit and overhead expense, plus the transportation — these aggregates making his selling price on the various articles. It appears that many of the values so fixed by this witness were mere estimates, as distinguished from positive statements of value, as will be seen from the following excerpts from the record:

“Q. Now, Mr. Henson, I notice you have a 5-32 drill here; what is that worth? A. Well, from memory, probably 25 cents at that time.
“Q. A 6-32 twist drill; what was that worth at that time? A. Probably five cents more.
“Q. Now, the 7-32. twist drill, how much was that? A. Well, probably 30 or 35 cents.
“Q. Well, which one do you say — 30 or 35? A. Well, I would say 35 cents.
“Q. The 8-32? A. About the same price.
“Q. The 9-32 twist drill? . A. Why, that was probably worth 40 cents.
“Q. The 10-32 twist drill? A. About the same price.
“Q. 11-32 twist drill? A. About 45 cents.
“Q. 12-32 twist drill? A. About the same price.
“Q. 13-32 twist drill? A. About 45 cents.
“Q. 14-32 twist 'drill ? A. About the same.
“Q. 15-32 twist drill? A. About 50 cents, I would say.
“Q. 16-32? A. About 55.
“Q. Two nail sets, what were they worth? A. About 15 cents apiece.
“Q. One screwdriver? A. 35 or 40 cents. I think there is a difference in the size of the screwdrivers. About 5 cents difference in the selling price. About 35 or 40 cents, I think, if I remember right.
“Q. How. many screwdrivers, did you say? A. Two screwdrivers and. one screw bit.
“Q. This is a screw drive bit, I guess. A. About 15 or 20 cents.
“Q. Which would you say? A. About 20 cents.
“Q. One B. & C. adjustable wrench? A. About a $1.50, I think.
“Q. One No. 8 pipe wrench? A. A $1.25, I expect.
“Q. One No. 10 core monkey wrench, what was it worth? A. A $1 anyway.
“Q. How? A. A $1 I would judge, anyway, at that time.
“Q. One nut plier? A. About 75 cents.
“Q. One adjustable plier? A. About 35 cents.
“Q. One K Pean hammer? A. About a $1.25 is my memory.
“Q. Two spools soft wire? A. About 10 cents a spool.”

At the conclusion of this witness’ testimony it was found that the aggregate value, or estimate of value, as the case may be, amounted to $21.05. From this it will be seen that there was no absolute proof that the value of the property taken exceeded $20. The use of the words and expressions, “probably,” “I would say,” “about the same,” “probably worth,” “I would judge,” “according to my memory,” and like terms applied to the values fixed by this witness, indicates that the witness himself was not attempting to testify in positive terms. These estimates of value fall short of establishing as a proved fact that the aggregate value of the goods taken exceeded $20.

It was claimed in this connection by this defendant, and defendant offered to show by other witnesses, that the value of the several articles was fixed by Henson at from 50 to 90 per cent, above cost and carriage, and that the values as determined by him were higher than the selling price of like articles in surrounding towns, as Pryor, Wagoner, and Muskogee. Counsel for defendant attempted in various ways to make such proof, and his several proffers were by the court refused. After much argument the court seems to have finally taken the position that the defendant should be limited to proof of the selling price of these several articles in Locust Grove, and be confined to the prices on the products of the Simmons Hardware Company, and that current catalogues of the Simmons and other hardware companies were inadmissible to show value. On this point we quote portions only of the record:

“Q. From what' you learned from inquiring from merchants and from your experience in the store of Henson’s at Locust Grove, and the experience you have had in hardware stores since that time, I will ask you if you are acquainted with what was the reasonable market value of the articles taken by you, at the time they were taken. I am asking you if you now know what the reasonable market value of them was at that time? A. Well, I don’t know that I can say just exactly what it was, but somewhere near it.
‘ ‘ Q. What experience have you had in the hardware business from the time of taking it, up to the present? A. Well, I am working in a hardware store now.
“Q. How long have you been working there? A. At this place I have been working since the 10th of February.
“Q. Before that time what did you do? A. Before I worked at Locust Grove?
“Q. No, before you worked in that store? A. Well, I worked for Lawrence Price some at Wagoner.
“Q. What examination have you made, if any, of hardware catalogues for the year 1919 to determine the market value of hardware?
“By Mr. Nicklin: Object as incompetent, irrelevant and immaterial.
“By the court: Yes, the witness says — one witness testified that a catalogue is no basis.
“By Mr. Graves: Yes, but unfortunately—
“By the Court: And the court, I think, would not be bound by catalogues, unless it be shown that they were correct at the time.
“By Mr. Graves: The courts have held that you will be permitted to use a catalogue, and that it is good evidence, and as to whether or not it was a safe basis from which to determine is a question of fact for the jury, and not for a witness on the stand to decide.
“By the Court: But this witness says it is not correct, so you could not use it. Your own witness, Mr. Henson, you cross-examined him on that, and he said it was not correct.
“By Mr. Graves: He wasn’t my witness.
“By the Court: You made him your witness when you asked him your question. Bather the testimony is, whether you made him your witness or not, that is what the testimony is.
“By Mr. Graves: Would your Honor hold I wouldn’t be permitted to show a statement contrary to one made by the witness on cross-examination?
“By the Court: Yes, you would have a right to show that. His testimony is the only testimony on that point, as I remember.
“By Mr. Graves: But there will be more testimony.
“By the Court: Well, I can’t presume that his testimony is incorrect. I don’t know. Objection is sustained. Gentlemen, I don’t think there is any use to try to prove any market value outside of Locust Grove neighborhood and community, unless it be shown that there is a uniform price in Locust Grove, Pryor, Choteau, Muskogee, and all of the surrounding towns. I suppose that would be the rule. The rule as laid down by our Supreme Court- says the market value, the value of the article, is the reasonable market value in the community and at the time. There might be a different value in Muskogee and at Locust Grove. There might be a different value from Pryor to Locust Grove, I don’t know. The court don’t know and the court can’t assume they all have the same values. First, before I think this evidence would be competent, you must show the value of these articles are identical, both at Muskogee and Locust Grove, before you introduce a Muskogee value. Same thing, as to Pryor and Choteau. That is the rule of law. You will have to abide by it, gentlemen. This is all incompetent, and the court will so hold, and counsel may offer to show all the market values of Choteau, Pryor, Muskogee, and Wagoner, and the court will consider it as offered, and will deny the offer unless it is first shown these articles — the prices- of them as established at Locust Grove, if established, is the same as.the values in other towns. Just as well to rule on it now, gentlemen, no use to fool along with it.
“By Mr. Graves: Will Yoür Honor permit me to withdraw this witness for the present, and offer evidence along that line, in order to meet this ruling?
“By the Court: Yes; sir.”

A witness, Walter Hairston, testified that he was a hardware merchant at Pryor, a town 16 miles distant from Locust Grove, and that he was familiar with the selling price of hardware, including hardware bought from Simmons, Wyeth, iHibbard, Bartel & Spencer, Blish, Mize & Silliman, Shap-leigh, and other hardware companies, and that there was little difference in the price of the articles sold by these various companies. He also testified that the hardware merchants at Pryor competed with Henson at Locust Grove in the territory intervening, and that the price of hardware at Locust Grove and Pryor should be about the same, but that he had no positive knowledge of the price of hardware in Locust' Grove, or the immediate neighborhood of Locust Grove. Thereafter this witness was asked:

“Q. Mr. Witness, you may state whether or not you were familiar with the market values of articles as mentioned in the information, on the 24th of March, 1919, in and around the town of Pryor, Oklahoma? A. Yes, sir.
“By Mr. Nieklin: Objected to, Your Honor.
“By.the Court: Sustained.
“By Mr. Nieklin: Ask that the answer be stricken.
“By the Court: Now, there isn’t any use to go into that, Mr. Graves. I think you have covered that from all angles. This witness says he does not know the reasonable market value of these goods in Locust Grove in 1919, and he doesn’t handle the Simmons, if these are Simmons, and he doesn’t know the uniform value. * * #
“Q. Mr. Witness, is your knowledge of values of hardware such that you can say whether or not the market value of the articles mentioned in the information would be the same in the town of Pryor — in the town of Locust Grove, Oklahoma, as in the town of Pryor?
“By Mr. NicMin: Objected to because the witness has answered that question at least once or twice.
“By the Court: Overruled.
“A. Well, they ought to be close, not very much difference in price between Pryor and Locust Grove.
“By Mr. NicMin: Object to that and ask that the answer be stricken as not responsive to the question.
“By the Court: Gentlemen of the jury, this answer of the witness is stricken and you should not consider it. The court holds that the market value at the time and place must be at Locust Grove, unless it is first shown that the witness himself knows that there is a uniform value at Pryor and Locust Grove, and also, this answer to the question is not responsive to the question.”

We think the restrictions imposed by the court, touching the introduction of evidence as to the value of the articles taken, were too narrow, ■ and that since it was a close question of fact as to whether the amounts in the aggregate exceeded $20, the exclusion of some of the evidence proffered was prejudicial.

Suppose the merchandise alleged to have been stolen had been diamonds or Liberty Bonds.' Could it be sáid that their value would have to be the selling price of such property in Locust Grove, a place where there had never been competitive selling of such property? The rule so strictly construed) would in many instances practically preclude a defendant from maMng proof of the value of many things. From the very nature of the situation, such proof of the value of many things in Locust Grove would be impossible. Here the articles taken for the most part consisted of screwdrivers, drill- bits, hack saws, and various kinds of wrenches, things found in all hardware stores everywhere. We cannot assume, without proof, that a screwdriver, or a drill, bit or a wrench soldi by the Simmons Hardware Company is better and more valuable than those sold by some one or more of the other wholesale hardware dealers. There are things, on the other hand, that would have no market value in the places where such things might be taken — for instance, bathing suits on the top of Pike’s Peak, or snowshoes in Locust Grove. Under such circumstances, defendants must of necessity resort to other means to ascertain value. If the evidence of value at the place of the larceny is not clear and explicit, such evidence of value at other places sufficiently near and in like situation may be received as will reasonably tend to establish a fair value.

We see no reason why the rules to establish value in civil cases would not apply as well in criminal cases. In a ease decided by the Supreme Court of Kansas, it was held that the market price of stock cattle at Garden City, Kan., was governed largely by the market price at Kansas City, Mo., and that the best evidence of value of which the case 'is susceptible should be admitted. See text and .reason cited 'in 22 Corpus Juris, “Evidence,” §§ 147-153. Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, 50 L. R. A. (N. S.) 889.

Considering the uncertain proof of value by the prosecuting witness, sound reason would indicate that the defendant should have been permitted to make proof of the value of these articles by showing the price merchants in surrounding towns received for tools and articles of the same character, and by proof of quotations of prices in the current catalogues and price lists. Such proof, it seems to us, would be of greater probative force than the indefinite statements and estimates of value made by the person aggrieved.

We are persuaded that the evidence of value on the part of the state was insufficient, and that the defendant was not given a fair opportunity to show, if he could, that the value of the property taken was in fact less than $20. The judgment of the trial court is therefore reversed, and the cause remanded.

MATSON, P. J., concurs; DOYLE, J., absent and not participating.


text:
    J. BRUNDRIDGE MILAM v. STATE.
    No. A-4060.
    Opinion Filed Aug. 18, 1923.
    (218 Pac. 168.)
    (Syllabus.)
    1. Preliminary Examination — Authority of Ex Officio Judge of City Court. A preliminary examination, held by an ex officio judge of the city court of Muskogee, held sufficient.
    2. Robbery — Instructions as to Motive or Intent — Sufficiency. The original written instructions given concerning the motive or intent to- rob wiere sufficient. ■
    3.- Trial — Instructions Aske.d for During Jury’s Deliberation — Requisites. Oral instructions given, after submission of the cause to the jury, during the jury’s deliberations, held improper and misleading.
    (a) After a cause is submitted to the' jury if the jurors ask for further instructions, and the court deems it proper, additional instructions may be given. These should be reduced to writing, and filed in the same manner as the original instructions.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    J. Brundridge Milam was convicted of robbery, and he appeals.
    Reversed, and remanded for new trial.
    T. H. Davidson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N, W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. Brundridge Milam, plaintiff in error, in this opinion designated the defendant, was by information filed January 6, 1921, charged with having, on the 4th day of December, 1920, committed the crime of robbery, by taking from the person of Guy Roberts, by means of force and fear, a certain watch and chain. At the trial, February 17, 1921, by a verdict of the jury he was found guilty of robbery in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 10 years. From the judgment rendered on this verdict, he appeals.

The evidence on the part of the state, as shown by Guy Roberts, the injured party (who was in fact not injured, as will be disclosed herein), was to the effect that Roberts, at the time of the alleged offense, was in the employ of the Oklahoma Gas & Electric Company at Oklahoma City, and was in Muskogee on business for this company, having a room at the Cardinal Rooms, that in this rooming house there was a wide hall or waiting room connecting with some of the rooms, and that witness first saw the defendant standing in the doorway of room No. 9, while witness was standing in this hallway. The defendant stood in the open door of his room and beckoned several times to the witness to come to the room; eventually the witness stepped to the door and the defendant invited him to come inside; witness stepped into the room, where he found two companions of the defendant, somewhat under the influence of liquor, and the defendant himself considerably under such influence. The defendant asked the witness to pour some whisky which he had in a jug into some small bottles, stating that he (the defendant) was too nervous to do it. At first the witness refused to do this, whereupon the defendant picked up a pistol and asked the witness why he would not pour the whisky; the witness replied that he did not want to have anything to do with it. The defendant again told him that he was too drunk to do it, and at the point of a pistol forced the witness to pour the whisky into the small bottles. The witness stated that after some argument the defendant began to suspect that witness was an officer, and in his crazy, drunken condition continued to be mean and humiliate the witness. Finally the defendant noticed that the witness had a watch and chain, and defendant, apparently in a joking way, stated that it looked to him like a pretty nice watch and ordered the witness to take it off and throw it on the bed. The witness, through fear of the defendant in his drunken condition,, with a gun in his hand sometimes pointed toward the witness, complied with his demand, and put the watch and chain on the bed where they lay for some time, until the defendant went over to the bed, picked up the watch and put it in his pocket.

The witness then commenced to argue and reason with the defendant about taking his property, and the defendant stated that he was going to keep it until he found out that the witness would not report him to the officers. About that time the pistol in defendant’s hand was accidently discharged. The witness continued to remonstrate with the defendant about taking his watch and chain, and finally the defendant voluntarily returned them to the witness. This occurred just before the officers came and placed the defendant under arrest.

The officers testified that they went to the rooming house in response to a call from there; whether or not the defendant or those with him knew that a call had been sent to the police, it seems that they were expecting the officers, and one of the party threw the whisky out of the window just before the officers got into the room.

The defendant, testifying in his own behalf, was to some extent corroborated by the state’s witness Eoberts. Defendant stated that he had engaged room No. 9 at the Cardinal Rooms about 12 o’clock that day, and that he and a Mr. Nolan and an Indian by the name of Goodtraveler were drinking whisky in this room; that after a while they invited Mr. Roberts into the room, being then under the impression that they had met Roberts earlier in the day — it later developed that it was a case of mistaken identity, and that in fact they had never seen Roberts before the time he was invited into the room; that after he came in defendant closed the door and invited Roberts to have a drink, but that Roberts refused; that defendant had about a pint of whisky in a jug and that he asked Roberts to pour it into some small bottles; that Roberts said he did not care to do this, but that defendant told him he was pretty nervous and shaky and repeated the request, and that witness then poured the whis-ky as directed. Defendant denied that he compelled witness to do this at the point of a gun; defendant admitted that he had a gun in the room; defendant denied that he ordered the witness to throw his watch and chain on the bed and denied that he took the watch and chain. Defendant said that he went to the dresser, from which he took the gun, and that he was swinging the gun around in the room, but not pointing it at any person in particular, when it was accidentally discharged. In the main defendant’s testimony was corroborated by the testimony of Goodtraveler. Further details of the conflict in the testimony of the state and that of the defense need not be recited. Enough has been said to illustrate the points raised in this appeal.

The defendant claims that the trial court was without jurisdiction to put him on trial for this offense, because he was not accorded a preliminary examination in accordance with the Constitution and the laws of this state.

The preliminary examination, or purported preliminary examination, as the case may be, was held before Enloe V. Vernor, acting as “ex officio city judge of the city court of Muskogee, Okla.” This court was organized and existing under the provisions of chapter 113, Session Laws 1917, as amended by chapter 157, Session Laws 1919. The act creating this court and the amendments thereto provided for a city judge having civil and criminal jurisdiction, and provided, among other things, that the judge of this court should have the same jurisdiction as justices of the peace do in this state, in addition to the jurisdiction specifically conferred by the act. In section 12 of the original act it is provided that the judge of this court may be disqualified and a special judge selected under the same terms and conditions as are provided by law for courts of record.

When this case came up on preliminary hearing before Charles Wheeler, the regular city judge, he announced publicly that he had been an assistant county attorney and had assisted in prosecuting one of the defendant’s companions in a case arising out of some of the circumstances at issue here, and. that he felt, in justice to all parties, that he should disqualify, which he did at that time. It appears that Enloe V. Vernor was the county judge of Muskogee county, and, at the suggestion of Judge Wheeler, Judge Vernor was called to hold this preliminary hearing. At this hearing both the state and the defendant introduced testimony, and Vernor, as ex officio city judge, held the defendant to the district court on this charge. The certificate to the transcript of the preliminary proceedings is signed, “Enloe V. Vernor, County Judge and ex officio Judge of the City Court of Muskogee.”

At the time of the preliminary trial the defendant made no objections to the proceedings had, as above outlined, but' before going to trial in the district court the defendant objected to being put upon trial because, as he alleged, he had had no preliminary examination as provided by law. This was set out in his motion to quash the information and also raised by demurrer to the information. In both instances it was claimed by defendant that Judge Yernor was not a judge, ex officio or otherwise, of the city court of Muskogee, and that the purported preliminary examination was a nullity.

In this connection it is urged that the statutes creating the municipal court of Muskogee are unconstitutional and void. Since the act and amendments thereto creating this court have been'repealed it would serve no good purpose to go into an extended analysis of the question of the constitutionality of this act. It requires no argument to establish the fact that it is within the power of the Legislature to create courts other than those designated in the Constitution, inferior to the Supreme Court, and to define their jurisdiction, and when the Legislature established a court having like jurisdiction with justices of the peace, who have jurisdiction as examining magistrates, they had authority to do so. It may be that some of the other provisions of the act were unconstitutional, but this would not necessarily impair the primary jurisdiction of the court, including the right of the court to sit as an examining magistrate. We hold, then, that this court had jurisdiction to conduct a preliminary hearing, and the presumption is that a judge acting ex of-ficio is acting with due authority. This court will assume that, where a special judge acts judicially without objection from either party, his selection has been agreed upon by the parties and that his qualifications are sufficient. The objection that the examining court was without authority to hold a preliminary examination, as contemplated by law, will not be sustained.

The defendant seriously urges that the verdict is not supported by sufficient testimony and that the issues of law raised by the testimony were not properly submitted to the jury.

The injured party, Eoberts, the person alleged to have been robbed (who in fact was not injured financially because the property was returned to him voluntarily soon after it was taken), was not the prosecuting witness in this case. Eoberts seems to have been a more or less indifferent bystander. Under his testimony, and that of defendant and his companions, the issue of fact as to the motive of the defendant is rather obscure. Whether it was the intention of the defendant to permanently deprive Eoberts of this property or whether it was merely his plan to detain the witness or.deter him from informing the officers that the defendant was in the illegal possession of intoxicating liquor was an issue of fact submitted to the jury by the court, in the first instance, in the following instruction:

“You are further instructed that the defendant in this case is charged with the crime of robbery in the first degree, and in this connection you are instructed that robbery is the wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, and must be accomplished by means of force or fear. The force or fear must be employed either to obtain the possession or to retain the possession of the property, or to prevent or overcome resistance to the taking. If the force or putting in fear is employed merely as a means of escape, it does not constitute robbery. When force is employed to obtain or retain the possession of the property, the degree of force employed is immaterial. When fear is employed as- a means of obtaining or retaining the possession of the property, it must be the fear of an unlawful injury, immediate or future, to the person or the property of the person robbed or of any relative of his, or member of his family; or the fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed, at the time of the robbery. If the property is taken under the circumstances required to constitute robbery, the fact that the property is of trifling value does not qualify the offense.”

Defendant claims that if the property was taken it was done for the purpose of protecting the defendant against arrest by detaining the witness, so as to prevent his informing the officers, and not done for the purpose of depriving the witness of his property. The only reference made to this issue in the original instructions is as shown above.

It would have been better for the trial court to have explained this issue more specifically. At any rate, the instruction given was not sufficient to satisfy the jury, as will presently appear. After the jury had deliberated for some time they were returned into court and at this point the record discloses the following proceedings:

“By the Court: Have you reached a verdict?
“By a Juror: We have not.
“By the Court: What—
“By a Juror: May we ask a question?
“By the Court: You may ask such question as you wish to ask.
“By a Juror: Judge, there seems to be a question about the word ‘intent’ in that last written instruction there— what connection it bears to the first part of the instruction.
“By the Court (reading from instruction No. 5): ‘You are further instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant did within the county of Muskogee, Okla., on or about the 4th day of December, 1920, or within three years before the presentment of the charge in this ease, wrongfully, willfully, unlawfully, and feloniously put the said Guy Eoberts in fear of immediate injury to his life or person by threatening to shoot the said Guy Eoberts, or by pointing a pistol at the said Guy Eoberts, and that by putting the said Guy Eoberts in such fear the said defendant did unlawfully, wrongfully, and feloniously take from the said Guy Eoberts any personal property then in the possession of the said Guy Eoberts with the intention on the part of him (the said defendant) to unlawfully, wrongfully, and feloniously rob and deprive the said Guy Eoberts of his said property and convert the same to his own use’ — now, if you find those facts to be true then you should find the defendant guilty. Then, I further instruct you that the fact that the property was given back afterwards has nothing to do with the commission of the crime, except that you may consider that in determining whether the defendant did do the things that I have just read, to you in this instruction — in other words, to help you to ascertain whether the facts which are referred to in the instruction just read actually took place or not, and has nothing else to do with the case. In other words, it didn’t make any difference whether the property was given back or kept, if it was taken by putting one from whom it was taken in fear of his—
“By a Juror: The mere fact that it was taken — whether the intention was for the purpose of robbery or not — has' no connection with it?
“By the Court: No; if he took it with the intention on the part of him (the said defendant) — if he took it with the intention to unlawfully, wrongfully, and feloniously rob and deprive the said Guy Eoberts of the property, then the crime has been committed.
“By a Juror: Whether he expected to keep it or not?
“By the Court: Yes; whether he expected to keep it or not — it didn’t make any difference — or rather, if he took it with the expectation of appropriating it to his own use, whether he afterwards made up his mind to give it back or not, is a proper statement of the case. Now, gentlemen, I am going to let you go back to your jury room.”

The jury again retired and were unable to agree upon a verdict, and were again returned into court, where the following colloquy took place:

“By the Court: Do you agree the jurors are all present?
“By Mr. Davidson: Yes.
“By the Court: Have you reached a verdict, gentlemen?
“By a Juror: We have not.
“By the Court: The bailiff tells me you report one of your men is sick?
“By a Juror: Judge, I would like to be instructed a little further.
“By the Court: Upon what point?
“By a Juror: I have a right to ask it?
“By the Court: Yes.
“By a Juror: Now, on your instructions you say that in case — now, if I believe — I am going to ask this question: If I believe that Milam forced Boberts to put that pistol — I mean that watch and chain — on the bed and later took it and put it in his pocket, as I understand Mr. Boberts’ statement is, now, he says, I believe you are the law — I will hold these until you decide not to turn us in, now, under that what about the reasonable doubt as to Boberts; that is, what about the reasonable — what I would like to be instructed on, if he was intending to intimidate only, have I a right to return a verdict for conviction?
“By the Court: I don’t understand what you mean — I don’t gather your idea.
“By the Juror: Well, this way — I will put it different. If I believe from the evidence, in the ease, two against one, but if I discredit two and believe one, put it this way, if I believe that he was forced to put this jewelry on the bed and put it in his pocket; he states, I take this for a purpose—
“By the Court: The witness didn’t, as I remember the evidence, state that statement was made until later.
“By the Juror: Well, in that case, I believe — that is the point I want instructions on. Mr. Roberts insisted he stated— that he stated that you' are the law and I will hold this; the question is, holding this, you won’t turn me in—
“By the Court: Well, there is no evidence that that statement was made at the time the property was taken, neither was there any evidence that that statement was made before the property was taken.
“By the Juror: Under that charge then, in that ease if I believe that then, I would not have any reasonable doubt then, would I?
“By the Court: Perhaps I can help you by calling your attention to one of the instructions on what Roberts states — you will find one instruction reading as follows: ‘You are further instructed that the defendant in this case is charged with thel crime of robbery in the first degree, and in this connection you are instructed that robbery is the wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, and must be accomplished by means of fear of force, and the force or fear must be em-poyed either to obtain possession or to retain possession of the property, or to prevent or overcome resistance to the taking’ —that is, to prevent or overcome the resistance of the one from whom it was taken. If the force or fear is employed merely as a means of escape, that is, of the one charged, it does not constitute robbery. When force or fear is employed to obtain or retain — to obtain or retain the possession of the property, the degree of force employed is immaterial. Now, there is no proof of force here; the proof in this case was that it was only fear, if any proof at all; it can’t be based — a conviction can’t be based upon force because there is no force shown. The evidence may show fear or it may not, that is for you to decide — when fear is employed as a means of obtaining or retaining the possession of the property it must be the fear of an unlawful injury, immediate or future, to the person or the property of the person robbed, or to any relative of his, and that does not apply here because there is no proof in this case, that is from the person or the property — they only claim to be robbed. You are instructed that in connection with the above that in order to constitute robbery in the first degree it must be accomplished by the use of force or putting the person robbed in fear of some immediate injury to his own person. Now, I think if you will consider that instruction it will probably answer your question.
“'By a Juror: Now, Judge, in that case — I want to ask you this question. I want to be instructed in that particular point —you instructed there, if you have a reasonable doubt, of course that is, if I do believe this man took this property—
“By the Court: I would rather that you would not go ahead with that statement because it would not be proper at this time, I don’t believe. The putting one in fear as is applied to this ease and using that fear as a means to obtain or retain possession of the property—
“By a Juror: Now, could I get that statement made by Mr. Roberts?
“By the Court: You want that read?
“By a Juror: Yes.
“By the Court: I think you can get that — the defendant objects to the evidence being read and I will sustain that objection. One of the jurors is sick. Are you seriously ill?
“By a Juror: If there is a chance of agreeing I will stay.
“By the Court: I am going to let you go back to your jury room and consider it further. ’ ’

From the record as above shown, it appears that the court supplemented his written instructions by a number of oral instructions. Thesq were of an indefinite nature, some' of them being answers to questions propounded by the several jurors, and some^ being in the nature of comments on the written instructions previously given. The questions propounded by the jurors indicate that they were confused about the issue of motive, and from the record we are inclined to believe that the issues were not clarified by what the court instructed orally. Further, it is contemplated by our statutes that instructions to the jury should be reduced to writing, unless this be waived by the parties, which was not done in this case. Section 2687, Comp. Stat. 1921, subd. 6. If it becomes necessary to give additional instructions to the jury after the original written instructions have been given, they should also be reduced to writing and properly numbered and filed, in the same manner as those originally given. Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Bird v. State, 22 Okla. Cr. 263, 210 Pac. 925.

Since the question of motive is the only vital decisive question involved in this case, and since it is apparent that this issue was not properly submitted to the jury, this cause must be reversed and remanded for a new trial, and it is so ordered.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.


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    W. L. PHILLIPS v. STATE.
    No. A-4617.
    Opinion Filed Aug. 18, 1923.
    (217 Pac. 1062.)
    (Syllabus.)
    1. Appeal and Error — Necessary to Show Juror’s Disqualification Before Acceptance Prejudicial. The defendant in a criminal action acquires no vested right to have a particular member of the jury panel sit upon a trial of his case until he has been accepted and sworn. Where! it is contended that the trial court erred in refusing to permit counsel for defendant to ask a certain question of prospective jurors on their voir dire examination, the ruling complained of must have resulted in compelling the defendant to accept one or more jurors possessing statutory disqualifications before he has good ground for complaint.

      2. Sufficiency of Evidence. Evidence examined, and .held sufficient to sustain the verdict and judgment.
    Appeal from District Court, McCurtain County; G. M. Barrett, Judge.
    W. L. Phillips was convicted of murder, and he appeals.
    Affirmed.
    J. A. Andrews, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction against the defendant in the district court of Me-Curtain county on the 28th day of September, 1922, in accordance with the verdict of the jury finding the defendant guilty of the crime of murder and assessing his punishment at imprisonment in the state penitentiary for life.

The appeal herein is from the second conviction of defendant. An appeal taken by defendant from the first conviction resulted in a; reversal of the judgment. See Phillips v. State, 20 Okla. Cr. 415, 203 Pac. 902. For a sufficient statement of the facts, reference can be had to the former opinion of this court.

But two questions are involved in this appeal: First, alleged error of the trial court in refusing to permit counsel for defendant to interrogate certain jurors on their voir dire examination. Second, that the verdict is contrary to the evidence.

In support of the first proposition, the case-made contains portions of the voir dire examination of certain prospective jurors, and it appears that certain jurors were asked by counsel for the defendant the following question, in substance: “Will you go into the jury box presuming at this time that the defendant is innocent?” When this question was first asked the court stated, “The law presumes the defendant innocent, and the state must prove his guilt to your satisfaction beyond a reasonable doubt, by competent and legal evidence, before you can convict him. You are not supposed to have any presumption in the matter at all.” To which statement the defendant objected and excepted on the ground that the court told jurors, “That they are not supposed to presume the defendant innocent.” Further, it appears that at another time when counsel for defendant asked the same question of another juror the court remarked: “Mr. Sprinkle, and all of you gentlemen, the law presumes the defendant innocent. The point is, Will you go into the jury box giving the defendant the benefit of that presumption until the state proves the defendant’s guilt to the satisfaction of your mind beyond a reasonable doubt?” And the foregoing question was answered “Yes.” And in the examination of another juror it appears that the trial court stated the legal presumption as above, and received an affirmative reply from the juror subsequently examined.

It does not appear from the record that any of the jurors to whom this question was propounded sat upon the jury in the trial of this case. Nor does it appear that any of them were challenged peremptorily or for cause. The material inquiry here is, Was the defendant deprived, by the action of the trial court in refusing to permit the question propounded to be answered, of any sufficient challenge for cause? In other words, did the action of the trial court prevent the defendant from having a fair and impartial jury to try this charge against him?

The presumption of innocence is a legal presumption and not a personal presumption as stated by the trial court to the jurors. It is a presumption with which the law clothes the defendant at the inception of the trial, and must be overcome on the part of the state by competent evidence, proving the defendant guilty beyond a reasonable doubt. The trial court apparently apprehended that the jury might gain the impression from the question propounded that counsel had reference to the juror’s opinion of guilt or innocence rather than to the legal presumption of innocence, and, in order to make the situation plain to the prospective jurors, stated the law as above set forth. Such statement was a correct pronouncement of the law, and, in the absence of any showing that the defendant was by the ruling complained of compelled to accept or did accept one or more jurors possessing statutory disqualifications, there is nothing presented to this court for review. Blankenship v. State, 10 Okla. Cr. 551, 139 Pac. 840, L. R. A. 1916A, 812.

We hold, therefore, that the record before us as to this assignment of error presents no question disclosing any action of the trial court resulting to the substantial prejudice of the defendant.

The second proposition that the evidence is insufficient to sustain the conviction is without merit. One of the state’s witnesses was an eyewitness to the tragedy, and testified positively that the defendant waylaid and shot the deceased from ambush, and, after wounding him the first time, and while the deceased was lying prostrate on the ground, ran up to him and fired another shot from a shotgun into the back of his head. There is also some evidence of hostility toward the deceased by the defendant. The defense interposed was that of alibi; the defendant and three of his daughters testifying that he was at home about three quarters of a mile from the place of the homicide at the time the shooting occurred. This conflicting testimony was for the jury to settle. This is the second jury to pass on the sufficiency of this evidence; both juries arriving at a determination that the defendant was guilty and assessing life imprisonment as the punishment for the crime. Under the cir-cumstanees, thé conviction will not be disturbed. The defendant is fortunate that the death penalty was not assessed.

The judgment is affirmed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


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    FRANK WEBER et al. v. STATE.
    No. A-4096.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1059.)
    Appeal from District Court, Craig County; A. C. Brewster, Judge.
    Frank Weber and another were convicted of adultery, and they appeal.
    Appeal dismissed.
    James S. Davenport, D. M. Martindale, and Ed Warren, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the plaintiffs in error Frank Weber, and Marie Riggins, in the district court of Craig county, on the 13th day of June, 1921, in accordance with the verdict of a jury, finding the said plaintiffs in error guilty of the crime of adultery, and assessing punishment against each at a fine of $500.

The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the court clerk and county attorney as required by section 2809, Comp. Stat. 1921, nor summons in error issued and served on the Attorney General, or its issuance and service waived by that officer as provided in. section 2814, Conip. Stats. 1921, and that no general appearance' has been entered by the Attorney General within the statutory period for taking this appeal. The motion to dismiss the appeal was filed in this court on the 6th day of July, 1923, and no response has been made thereto.

The records and files in the office of the clerk of this court in this cause support the Attorney General’s motion. It is evident, therefore/that this court has.never acquired jurisdiction of this appeal.

The appeal is therefore dismissed, in accordance with the opinion of this court in the following and numerous other cases: Kirk v. State, 21 Okla. Cr. 34, 204 Pac. 465; State v. Hudson, 21 Okla. Cr. 475, 204 Pac. 133.


text:
    SETH STONE et al. v. STATE.
    No. A-4131.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1119.)
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Seth Stone and W. B. Welch were convicted of robbery, and they appeal.
    Dismissed as to Stone, and affirmed as to Welch.
    Orval Johnson, for plaintiffs in error.
    George P. Short, Atty. Gen., and Leon S. Hirsh, Special Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Canadian county, wherein on the 3d day of September, 1921, plaintiffs in error were convicted of the crime of robbery and sentenced to serve a term of five years’ imprisonment in the state penitentiary. The Attorney General has filed a motion to dismiss this appeal as to Seth Stone upon the ground that on the 16th day of April, 1923, Hon. J. C. Walton, Governor of the State of Oklahoma, issued a parole to the said Stone for this offense, and that the same- has been accepted by him. A copy of the said parole and the acceptance of same are attached to the motion to dismiss the appeal. The motion to dismiss the appeal as to Stone is sustained upon authority of the following cases: Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445; Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912. As to Welch the judgment is affirmed. The appeal was lodged in this court on the 17th day of November, 1921. The cause was submitted on the 6th day of March, 1923. No brief has been filed in behalf of plaintiff in error Welch, ¿nd no appearance was made to orally argue the cause at the time same was submitted. The appeal as to Welch has apparently been abandoned, and the judgment is affirmed for failure to diligently prosecute the same and in accordance with Rule 9 of this court. 12 Okla. Cr. viii, 165 Pac. x.)


text:
    W. L. STARLING v. STATE.
    No. A-4147.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1118.)
    Appeal from County Court, Okfuskee County, S. A. Dul-ing, Judge.
    W. J. Starling was convicted of violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Sid White, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, W. J. Starling, was convicted in the county court of Okfuskee county of the offense of unlawful possession of intoxicating liquor, and punishment fixed at imprisonment in the county jail for a period' of six months and to pay a fine of $500. Judgment was rendered on the 28th day of October, 1921, and the appeal was lodged in this court on the 21st day of December, 1921. The cause was finally submitted on the 6th day of March, 1923. No briéf has been filed in behalf of plaintiff in error, and the cause was not orally argued at the time same was submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides: “When no counsel appears and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    OSCAR MENSON v. STATE.
    No. A-4140.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1118.)
    Appeal from District Court, Tulsa County; W. B. Williams, Judge.
    Oscar Menson was convicted of larceny of an automobile, and he appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Oscar Menson, was convicted in the district court of Tulsa county of the crime of larceny of an automobile, the property of one Weisburgh, and punishment fixed by the jury at imprisonment in the state penitentiary for á period of five years. Judgment was rendered on the 6th day of June, 1921, and the appeal was lodged in this court on the 6th day of December, 1921. At the time the cause was finally submitted on the 7th day of March, 1923, no brief had been filed in behalf of plaintiff in error, and an order was then made granting counsel for "plaintiff in error 20 days after submission in which to file a brief. No brief has yet been filed. Eule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


author: PEE CUEIAM.

text:
    W. A. LLOYD v. STATE.
    No. A-4127.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1117.)
    Appeal from District Court, Carter County; Thomas W. Champion, Judge.
    W. A. Lloyd was convicted of grand larceny, and he appeals.
    Affirmed.
    E. A. Howard, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUEIAM.

Plaintiff in error, W. A. Lloyd, was convicted in the district court of Carter county of the crime of grand larceny and punishment fixed by the jury at imprisonment in thte state penitentiary for a period of four years. Judgment was rendered on the 16th day of May, 1921, and the appeal was lodged in this court on the 12th day of November, 1921. The cause was finally submitted on the 6th day of March, 1923. No brief has been filed in behalf of plaintiff in error and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence-, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.