text:
    NOEL SKELTON v. STATE.
    No. A-8028.
    Opinion Filed April 4, 1931.
    (297 Pac. 828.)

      Hal Welch, J. H. Warren, and Choice D. Holden, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county of the crime of murder, and his punishment fixed by the jury at imprisonment in the state penitentiary during his natural life.

The evidence of the state was that the deceased, Jesse Greenwood, was a stepson of the defendant; that on the day of the homicide the deceased went to' the home of his mother and stepfather; that he had a 'bottle of whisky and. wanted his mother to' drink with him; that he cried when she refused, and she thereupon took a drink with him; that about this time the defendant returned to his home, and deceased insisted upon bis taking a drink with bim; that, after some argument, the deceased and the defendant and bis wife all drank some more whisky; that the deceased became boisterous and insisted on bis mother going with bim to the store; that after some persuasion the mother and deceased left the bouse and went out into the yard on their way to the store; that deceased bad bis band on bis mother’s shoulder and bad a harp in the other band; that defendant came out into the yard and struck the deceased with the flat side of a two-bitted ax, but did not knock deceased down; that thereupon defendant and deceased engaged in a scuffle, and that during the scuffle defendant stabbed the deceased 22 times with a knife; that any one of three of the wounds so inflicted would have been fatal; that, when the difficulty started, the mother fled and returning in a short time found defendant in the house with the knife in his hand, and the deceased dead in the yard; that the mother was the only eyewitness except the defendant; that following the homicide the mother applied for a divorce from the defendant and was granted one prior to the time she testified for the state.

Defendant claimed that the deceased was making an assault on defendant’s wife, and that he struck him with the ax to make him cease from such assault, and that deceased then turned on him, and in the fight that followed he was compelled to use the knife on the deceased to save his own life.

Defendant contends that the evidence is insufficient to support a verdict of murder, and at most establishes only manslaughter in the first degree.

Defendant admitted that he killed the deceased, and, when he did this, the burden fell on him to mitigate or excuse the act, or to raise a reasonable doubt thereof. Nothing in the record indicates that at the time defendant assaulted deceased with the ax either he or his wife was in any danger from deceased.

Defendant’s wife denies that deceased was committing any assault upon her, or that she was in any danger at the hands of the deceased.

Defendant having brought on the difficulty by assaulting deceased with an ax, he could not thereafter claim he acted in self-defense, unless he withdrew from the combat. Koozer v. State, 7 Okla. Cr. 340, 123 Pac. 554; McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358; Rich v. State, 31 Okla. Cr. 391, 239 Pac. 183; Wilkie v. State, 33 Okla. Cr. 225, 242 Pac. 1057.

The record discloses that, instead of withdrawing, defendant cut and stabbed the deceased 22 times with a knife. His own testimony shows that he was not acting in self-defense. If at the time the fatal thrust was made the defendant entertained a premeditated design to kill deceased, it was murder, unless justifiable or excusable, and the jury found by their verdict that it was neither.

Defendant next contends that the court erred in overruling his motion for a new trial upon the ground of newly discovered evidence.

An examination of the record discloses that the defendant exhibited no diligence in attempting to discover the so-called ne w evidence. A statement made by the wife of defendant to the county attorney had been taken in writing and transcribed, and this was known to defendant’s counsel. Neither the county attorney, defendant’s wife, nor the interpreter who interpreted when the statement was taken was called as a witness, and no effort was made by the defendant to procure this testimony before the verdict of the jury. It might be further said also that the so-called new evidence was only cumulative and tended to impeach the prosecuting witness, and for that reason would not be sufficient ground for a new trial.

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and, where no abuse of discretion appears, the cause will be reversed. Caldwell v. State, 50 Okla. Cr. 13, 295 Pac. 231.

Defendant next complains that the court erred in his instructions to the jury. A careful examination of the record discloses that the instructions given were the usual instructions given in a murder case and fairly state the law as applicable to the facts in this case.

Defendant next complains that the trial court erred in failing to give requested instruction No. 9, which reads as follows:

“If one strikes a blow in defense of his wife, he is justified or not accordingly as his wife would be guilty or innocent, had she struck the blow.”

This instruction was demanded upon the theory that the defendant was acting not only in his own self-defense, but was acting in the defense of his wife. The wife flatly contradicted the evidence of the defendant, and said that the deceased was making no hostile demonstration toward her and that she was in no danger from the deceased at the time defendant committed the homicide.

A careful examination of the record shows that the court in No. 7 gave an instruction more favorable to the defendant than the one requested by him. It was not error, therefore, for the court to refuse to give the instruction requested. Tate v. State, 45 Okla. Cr. 271, 281 Pac. 820; Craighead v. State, 45 Okla. Cr. 184, 282 Pac. 476.

The evidence of the state supports the verdict of the jury. An examination of the record discloses that the defendant had a fair trial and that the errors complained of are without merit.

The cause is therefore affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    FRED HUDLIN v. STATE.

      No. A-7668.
    Opinion Filed April 4, 1931.
    (297 Pac. 818.)
    Vance & Bliss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was jointly informed against with S. A. Clingan, charged with unlawfully, feloniously, and fraudulently uttering and passing a bogus check in the amount of f72.08; he was tried separately, convicted and sentenced to pay a fine of $250, from which sentence and judgment the defendant has appealed.

The evidence, briefly stated, is that the defendant in this case and S. A. Clingan made an agreement that defendant would deposit in the bank $100 for Clingan to use in buying bogs and cattle, and tbe profit would be divided between tbe two. Tbe defendant deposited tbe $100 in tbe First National Bank of Hulbert, and advised tbe bank to honor Clingan’s checks on tbe deposit. This arrangement was made about May 1, 1928. Clingan bought some bogs and cattle, and made checks on tbe bank, signing tbe defendant’s name by S. A. Clingan. Tbe defendant made several deposits in tbe bank, and Clingan drew several checks which were paid. On July 21, 1928, as shown by tbe evidence of tbe officers of tbe bank, there was to tbe credit of defendant $449.63. On July 21, 1928, Clingan drew a check on tbe bank for $72.08, signing. tbe same “Fred Hudlin by S. A. Clingan.” The testimony shows that this defendant knew nothing about this check having been drawn by Clingan, and did not learn of it until after a warrant bad been issued for defendant’s arrest. Tbe check was not presented to tbe bank for payment until about the 31st of July, several days after it was given by Clingan. There is very little conflict in tbe testimony; tbe only conflict being that tbe defendant authorized tbe bank to recognize checks with bis name signed to them by S. A. Clingan to tbe amount of $100. At tbe close of tbe testimony, tbe defendant demurred to tbe state’s evidence on tbe ground that it is wholly insufficient to constitute tbe crime alleged in tbe information. Tbe demurrer was overruled, and defendant saved an exception. Tbe first assignment of error is that tbe court erred in overruling the motion of plaintiff in error for a new trial. This assignment covers all tbe questions raised by tbe defendant; that is, the sufficiency of tbe evidence to sustain tbe conviction. Tbe defendant insists that, as the check was given by Clingan, and be had no knowledge of tbe purchase of the hogs, there was no guilty intent upon bis part; that bis conviction is not sustained by sufficient evidence. The theory of tbe state is that tbe defendant is responsible as a principal for Clingan’s acts, arguing that tbe defendant bad unqualifiedly put Olingan into the business, and bad authorized transactions such as tbe one in which Olingan gave this check. An examination of tbe record shows that tbe defendant Olingan was tried and acquitted of tbe charge of issuing tbe bogus check. Under tbe law, any person who, with intent tO' cheat and defraud, shall obtain, or attempt to obtain, from any person, firm, or corporation any money or property or valuable thing of tbe value of more than $20, is guilty of a felony. In Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260, in tbe first paragraph of syllabus, tbe court said:

“When, in tbe trial of a criminal case, tbe proof introduced on behalf of tbe state is insufficient to sustain a conviction, it is the duty of the trial court to advise tbe jury to return a verdict of not guilty.”

In Teague v. State, 10 Okla. Cr. 43, 133 Pac. 1134, tbe court in syllabus said:

“To sustain a conviction, it should appear not only that tbe offense was committed, but tbe evidence inculpating tbe defendant should be so to a degree of certainty, transcending mere probability or strong suspicion.”

It is always incumbent on tbe prosecution to establish each and every material element of tbe crime charged before tbe jury is warranted in finding tbe defendant guilty. Crouse v. State, 39 Okla. Cr. 127, 263 Pac. 681.

There is no- evidence to show tbe defendant bad knowledge that Olingan had issued tbe check or that tbe defendant intended to defraud any one. Tbe verdict and judgment is contrary to tbe law and tbe evidence.

Tbe case is reversed.

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


text:
    HARRY KELLEY v. STATE.
    No. A-2469.
    Opinion Filed April 4, 1931.
    (297 Pac. 819.)
    William M. Matthews, for plaintiff in error.
    Charles West, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county of interfering with a fire boss of mine No. 6, Dewar, Okla., and was sentenced to pay a fine of $100.

The testimony in brief shows that the defendant in this case was the foreman of mine No. 6, Dewar, Okla., and that the prosecuting witness, Montgomery, was one of the fire bosses for said mine; that the foreman of the mine employs the fire boss. On the morning of March 19, 1914, the prosecuting witness came to the mine about 4 o’clock a. m., at which time the night shift was supposed to come out of the mine, but the night shift did not come out of the mine until 7:15, owing to some additional work they had to finish before they could leave the mine. When the defendant came to the mine, he learned the night shift had not yet come out; that the regulations required the fire boss to inspect the mine from two and one-half to three hours before another shift was permitted to gx> into the mine, and, as it was then 6 or 7 o’clock in the morning, which would have made it too late in the day for the day shift to go into the mine, the foreman did what is said in mining parlance, “put the mine on the bum”; that is, he advised the day shift the mine would not run that day, and told the fire boss it would not be necessary to inspect it that morning. The testimony further tends to- show that the prosecuting witness Montgomery and the foreman of the mine had some controversy as to the foreman giving the fire boss his time that morning, and the foreman told him he would give him his time, which he did, and discharged him as fire boss of the mine. The defendant’s explanation is that, as it was so late in the morning for the fire boss' to go into the mine owing to the night shift not coming out until 7 o’clock, it was best not to run the mine that day, and that, when the prosecuting witness wanted his time, he gave it to him and discharged him from the employment of the mine.

The defendant has assigned several errors alleged to have been committed by the trial court. The only one that we deem necessary to consider is assignment 4, which is as follows:

“The court erred in failing to sustain the demurrer of the plaintiff in error to the defendant in error’s evidence.”

The section of the statute that the defendant is charged with violating is section 7601, Comp. St. 1921, which reads as follows:

“It shall be unlawful for any person, company or corporation owning and operating any mine in the state or operating as lessee, any mine in this state, or any officer, agent, representative, or mine foreman of such company or corporation or labor organization to interfere, or attempt to interfere in any way with the fire boss, of any mine in this state, in the performance of his duties, or by any sort of threat or threats, or duress, to intimidate, or attempt to intimidate such fire boss in the performance of his duties or by persuasion or promise, or of extending hope of reward in any way to such fire boss in the performance of his duties, or to attempt in any way to cause or induce such fire boss to fail or neglect to perform any duty required of him by the mining laws of this state.”

An examination of the record clearly shows that there was no criminal intent upon the part of the defendant in ashing the fire boss not to go< into the mine on the morning of the 19th of March, 1914, for the reason that the mine was not going to run that day. The testimony is insufficient to show that the defendant in this case interfered with either the spirit or the letter of the law, as contemplated by the Legislature in the enactment of section 7601, supra, which it is contended that the defendant violated. This court has repeatedly held that, where there was competent testimony to go to the jury, it would not disturb the verdict, but, where there was no competent testimony, it was its duty to reverse the case.

There being no competent testimony to sustain the judgment, the case is reversed.

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


author: CHAPPELL, J.

text:
    JIM BECK v. STATE.
    No. A-7640.
    Opinion Filed April 4, 1931.
    (297 Pac. 820.)

      W. M. Williams, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county of the crime of unlawful sale of intoxicating liquor, and. his punishment fixed by the court at a fine of $350 and imprisonment in the county jail for 60 days.

Defendant complains first that the court erred in overruling his motion for a continuance.

The record discloses that, on the day and before the case was called for trial, defendant filed an affidavit for continuance, setting up that subpoenas had been issued for his witnesses and return duly made “not found,” and setting out what the witnesses would testify to, which testimony was material to the defendant in his defense. The state made no counter showing.

In Franks v. State, 8 Okla. Cr. 71, 126 Pac. 582, this court said:

“When a motion for continuance is filed by an accused setting up sufficient grounds to justify a postponement, it is an abuse of discretion for a trial court to overrule the same, in the absence of any showing that the motion is without merit or made in bad faith.” Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, Ann. Cas. 1918C, 416; Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812.

In the case at bar the record discloses a manifest abuse of the trial judge’s discretion in overruling the application for continuance.

Defendant next contends that the court erred in instruction No. 4, which reads as follows: “The defendant has interposed in this case, as one of his defenses, what is known in legal phraseology as an alibi; that is, that the defendant, at the time alleged in the information, is at another place than that alleged in the information as being the place where the offense was committed. The law is, that such a defense is proper and legitimate, and that the jury should consider all the evidence bearing upon this point, whether introduced by the state or the defendant, and if, after a careful consideration of all the evidence in the case, the jury entertain a reasonable doubt as to whether the defendant was in such other place when the crime was committed, then and in that event the jury should give the defendant the benefit of the doubt and acquit him.” This instruction has been directly condemned by this court in the case of Stuart v. State, 35 Okla. Cr. 103, 249 Pac. 159. For a full discussion of this question and of the proper instruction to be given in cases of this kind, see paragraph 5 of the syllabus and page 112 of the body of the opinion, 35 Okla. Cr. 103, 249 Pac. 159, 162.

The defendant next contends that the prosecuting attorney was guilty of prejudicial conduct in the cross-examination of defendant and in his argument to the jury.

This contention is supported by the record. The cross-examination of defendant by the county attorney was highly improper and the argument manifestly unfair and prejudicial to the rights of the defendant.

This court is loath to reverse a case, but must do so under the law where the record discloses manifest abuse of discretion on the part of the trial court in denying a continuance, misdirection of the jury by the court, and improper cross-examination and prejudicial conduct in the argument of the case.

Por the reasons stated, the cause is reversed and remanded with directions to the trial court to proceed with the trial of the case in accordance with this opinion.

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


author: PER CURIAM.

text:
    CARL WARMA v. STATE.
    No. A-7727.
    Opinion Filed April 4, 1931.
    (297 Pac. 821.)
    W. Lee Johnson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of $400 and imprisonment in the county jail for a period of five months.

The affidavit was made and the search warrant issued and served on Sunday, the 25th day of August, 1929. No showing was made in the affidavit for the search warrant of an apprehended breach of the peace, or breach of the peace, which would authorize the issuance and service of the writ on Sunday.

In Laub v. State, 49 Okla. Cr. 171, 292 Pac. 891, this court had this question under consideration, and there held the issuance and service of a search warrant on Sunday void, and the evidence obtained by a search on Sunday inadmissible, where no> showing of a breach of the peace, or apprehended breach of the peace, was made to bring it within the exceptions of section 1827, C. O. S. 1921.

For the reason stated, the cause is reversed.


text:
    BUD ROWAN et al. v. STATE.
    No. A-7785.
    Opinion Filed April 4, 1931.
    (297 Pac. 822.)

      Brown & Brown, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Carter county of assault to do bodily harm, and were each sentenced to serve six months in the county jail, from which judgment the defendants have appealed.

The information alleged the offense to have been committed April 29, 1929. A petition in error with case-made attached was filed in this court March 29, 1930. No brief has been filed by the defendants in support of the assignments of error; yet, notwithstanding the failure to brief the assignments, we have read the record with care to ascertain if the court followed the law in the admission and rejection of the evidence and its instructions to the jury.

The record discloses that the defendants had an altercation with one James Childs in which the latter was beaten upon the body and head with various kinds of weapons.

The instructions, when taken in their entirety, correctly stated the law as applied to the facts in the case. Prom an examination of the record we find there were no substantial or prejudicial errors committed by the trial court. The defendant was accorded a fair and impartial trial.

The judgment is affirmed.

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


text:
    HENRY FIELDS et al. v. STATE.
    No. A-7762.
    Opinion Filed April 4, 1931.
    (297 Pac. 822.)
    Waldrep, Winterringer & Akin, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, entered their plea of guilty to the unlawful possession of a still, and the defendant Henry Fields was sentenced by the court to pay a fine of $400 and be imprisoned in the county jail for a period of three months, and the defendant P. D. Campbell was sentenced to pay a fine of $500 and be imprisoned in the county jail for six months.

The defendants were arrested on the 2d day of March, 1930, and arraigned in the county court of Pottawatomie county on the 3d day of March, 1930, at 9 o’clock a. m., at which time the county attorney read the information to the defendants, and the court thereupon advised the defendants of their statutory and constitutional rights in the premises.

The defendant Campbell immediately entered his plea of guilty to the charge; the defendant Fields asked until noon to decide how to plead, and the court granted him until 11:30; thereupon the defendants were taken from the courtroom by the officers, and within the next few minutes the defendant Fields returned to the courtroom and advised the court that he desired to enter a plea of guilty. Thereupon such pleas were accepted by the court and judgment pronounced as above set out. The defendants were thereupon committed to- the county jail by the sheriff.

On the 10th day of March, 1930, the defendants, through their counsel, filed a motion for leave to withdraw their pleas of guilty and enter a plea of not guilty. Defendant Campbell makes no- claim that he did not understand the entire proceeding, but the defendant Fields claims he misunderstood the court, and that a federal officer threatened to take him to Oklahoma City and file a federal charge against him if he did not enter a plea of guilty. The defendants explain their move to withdraw their plea of guilty by saying that some one in the jail told them they thought, if they could get the plea withdrawn, they might get off with a lighter sentence, and that through some one in the county jail, whom they did not know, they got in touch with counsel.

The court conducted a full, fair, and open hearing upon this application, and overruled the same.

This court has uniformly held that the granting or denying of such a motion is within the sound discretion of the trial court, and that its action will not be disturbed, unless an abuse of discretion appears from the record. Kemp v. State, 35 Okla. Cr. 128, 248 P. 1116; Looper v. State, 42 Okla. Cr. 341, 276 P. 503.

The rule in misdemeanors is less strict than in felony-cases. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298.

If defendants are to he allowed to enter pleas of guilty, and then, because they feel the punishment is too heavy, apply a week or two later to the court for leave to change their plea, the judgments of the court solemnly pronounced are meaningless, and the enforcement of law impossible.

An examination of the record discloses no abuse of 'discretion in overruling the application to withdraw the plea of guilty, and the cause is therefore affirmed.

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


text:
    A. L. WALKER v. STATE.
    No. A-7411.
    Opinion Filed March 21, 1931.
    Rehearing Denied April 11, 1931.
    (297 Pac. 331.)
    Wm. H. Lewis and C. R. Reeves, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of murder, and his punishment fixed at imprisonment in the state penitentiary for life at hard labor. i Motion for new trial was filed, considered, overruled, and exceptions saved, and defendant appeals.

The testimony in this case tends to show that the wife of the defendant, who it is alleged the defendant murdered, prior to her marriage to the defendant, had been married to a man by the name of Haydon; after Haydon died, she married the defendant on December 13, 1927, about six months prior to her death.

The testimony further tends to show that about two months before the death of the deceased the defendant had paid a premium on a health and accident insurance policy of $1,000 on the deceased. The afternoon of the alleged murder, the defendant went down to the old well to make some repairs and went to Roan’s home to ask for a hammer ; Roan went with the defendant back to the well, where a little mortar was made. It was further shown that the defendant had cautioned the wife of Roan not to let the children come to the well, and gave as a reason they might fall, in the well. Prom the testimony it was disclosed that the well was shallow, and about six feet from the top to the water, and about some eight feet from the water to the bottom of the well; the well was about three feet in diameter. Shortly after Roan left, the wife of Roan heard a woman scream, and about a half hour later the defendant came to her home and said his wife had fallen into the well and he was unable to get her out. Neighbors gathered at the well, and removed the body of the deceased from the well. Physicians were called in and made an autopsy to discover, if possible, the cause of death.

The testimony further shows that, shortly after the body was removed from the well, one of the neighbors pressed upon her stomach and a very small amount of water and some food came out of the mouth.

Dr. Cochran, physician and surgeon, testified as follows :

“I made an examination of the deceased, both internal and external.
“Q. What did your examination disclose? A. Well, it showed many external contusions on the body, on the face and head and back of the patient.
“Q. From your external examinations there could you tell whether or not there had' been any bones broken in the body of the deceased? A. Well, in the back there were some bones broken; some of the ribs were broken loose. ■
“Q. Do you recall where the wounds were you observed on the head and face of the deceased? A. Well, I may not be able to place them exactly. I remember quite a contusion right across the right side of the head here, and on the left side this eye was badly swollen and this side of the face was edematous or swollen and it was all contused and one place right on the head where there was a cut clear through, and on the other side of the face there was a bruise or two — on the right side of the face also.
“Q. Now what did you do with reference to the examination of this body other than the external examination that you made? A. I removed the cranium, the fleshy part of the scalp and examined the bone first.
“Q. What was the condition of the scalp and the bone you observed there? A. There was multiple or many blood clots between tbe scalp and tbe bony covering of the brain.
“Q. Describe those fully to* tbe jury? A. Well, they ranged all tbe way in size from as large as that down to just small clots, formed in tbe soft tissues between tbe scalp and tbe bony covering of tbe brain and extended all over tbe side of tbe face and up over tbe top and on tbe back of the scalp; they were all over tbe side and back of tbe bead.
“Q. Could you tell whether those contusions you observed were inflicted before or after death? A. They were inflicted before death.
“Q. Explain to tbe jury your reason for saying that? A. They would have to* be. When a person dies their heart stops beating and tbe blood gathers in tbe large blood vessels and these bruises bad been made while there was enough pressure in there to force tbe blood out of tbe tissues and into these places and there was blood clots surrounding each contusion on tbe bead.
“Q. How many of tbe contusions were there approximately? A. Quite a bunch.
“Q. Whereabouts on tbe bead were they? A. All over tbe side of tbe bead. There must have been 15 or 20 of them and maybe more; there was a great bunch of them.
“Q- Do you recall whereabouts on tbe bead they were? A. On the side of tbe bead from tbe malar bone clear across to tbe other side. Tbe deepest one was in tbe mid-line about opposite the ears and scattered on both sides and on the back of tbe bead.
“Q. What else did you do with reference to tbe examination? A. I then removed tbe bony covering of tbe brain.
“Q. That is tbe skull? A. Yes, sir.
“Q. What observation or examination did you make after you removed that? A. As soon as they got through removing that I found there was clots of blood in the middle sinus, going out through the dura, or outer covering of the brain, and that was inflicted before she died, and there was a clot there.
“Q. There was a blood clot on the dura, which is the outer covering of the brain? A. Yes, sir.
“Q. How many places had the brain been penetrated? A. That was the only place; it had been completely penetrated.
“Q. From the wounds you observed on the body of the deceased, can you tell the jury, in your opinion, which of these wounds was likely to produce death? A. Well, several of them might have done it, but that one in the top of the head could have produced death easily and likely did produce death.
“Q. Now, Doctor, from the examination made, could you be able to tell the jury what caused the death of Frances Walker? A. Well, I would say it was probably violence of some kind.”

He was asked in his opinion as to the cause of her death, and answered:

“Well, in my opinion, the woman met her death by violence. She was not drowned. I couldn’t tell whether she was beaten to death with a claw hammer, but in general I would say she was not drowned; it was by violent, means.”

Dr. Cochran further stated the wound upon the head could not have been inflicted after drowning in the drawing of the body out of the well. Several other doctors in substance testified to' the same facts.

The evidence further shows that near the well in the cornfield a place was found indicating where parties had been wallowing on the ground, and from this place the tracks of a woman wearing a small shoe and that of a man wearing a No. 8 shoe; the tracks indicated they had been running. Further on they found where there had been some one scuffling, where some one had fallen, and from this place the woman’s tracks were not to be found; and the testimony tends to show that the man’s tracks led from this place to the well where the body of the deceased was found.

The defendant testified in his own behalf, and claimed that the deceased had accidentally fallen into the well and drowned; he was younger than the deceased; he was kind to the deceased and assisted her in her work; had never had any trouble. The defendant states that on the date deceased .lost her life he was down southwest of the well untangling some wire; during the morning prior to the death of the deceased he went to town and came back about 2 o’clock; after that he began making preparations between á and 5 o’clock to fix the well—

“My wife knew that I was going to fix the well; I picked up" the sand and Mr. Roan and I tried a little of the lime and sand together to see how it would mix; my wife came to the well between 5 and 6 o’clock; I was standing over there at the fence undoing some wire when I first heard the scream; when I got there a pup was running around the well and I looked into the well; the water was dashing against the sides of the wall; I saw a hat in the well, and some rope was on the water, and I thought I would get into' the well and if she came up I would catch her; I went down into' the well and into the water up to my waist; I struck something with my foot and run this hand down, but could not feel anything; I looked over my head and it was a dangerous looking wall and I came out and went to the house and told Mrs. Roan about it; Mrs. Roan said she heard the scream; Mrs. Roan then went with me to the well and I told her I could not do anything by myself and was going for help.”

The testimony further shows that the neighbors gathered and the deceased was taken from the well and examined by Dr. Cochran and several other doctors. Considerable testimony was taken with reference to the facts and circumstances from the time it is alleged the body of the deceased was discovered in the well up to and including the burial, which it is not deemed necessary to set out in this opinion. Some of the witnesses testify that when they saw the defendant shortly after they discovered the body of the deceased in the well, the defendant was wet to his waist and one arm was wet, but they could not remember which one.

The first assignment of error is the court erred in overruling motion for a new trial. The other assignments are embraced within this assignment, and the ques-' tions presented by the defendant will be considered together. The record shows that an insurance policy had been taken out on the life of the deceased, the defendant being the beneficiary in the policy named; and that the defendant during the day, for some unexplained reason, went to the tenant house on the place occupied by a man by the name of Roan for the purpose of getting a hammer; that he was going to repair the well box on the well; that he and Mr. Roan mixed some lime and sand together to see how it worked; that was some time in the afternoon of the day the deceased lost her life.

The record further shows that the defendant requested the Roan family, if they wanted water, to get it, as he was going to fix the well box, but he did not proceed to fix the well box, but was off some distance away from the well untangling some wire when he heard some woman scream. There was other testimony which tends to show that in the cornfield near the well were the tracks of a woman and man that indicated the parties had been running; a short distance away there were indications on the ground that a struggle had taken place, and the woman’s tracks seem to have stopped and the man’s tracks from there to the well were seen.

It is urged by the defendant that, in a case where the prosecution relies upon circumstantial evidence, it is incumbent on the state to establish the guilt of the defendant beyond a reasonable doubt; that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable hypothesis or conclusions than that of his guilt. The defendant urges the court erred in giving instruction No. 8. Instruction 8 is as follo ws :

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

While none of the instructions given by the court were excepted to by the defendant, this court will examine the same for the purpose of determining whether any fundamental errors appear in the instructions. Instruction No. 8 is a verbatim copy of the instruction given in Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, which instruction was approved by this court, and is a correct instruction upon the law of circumstantial evidence, and was reaffirmed by this court in Jackson v. State, 22 Okla. Cr. 354, 211 Pac. 1066.

The defendant argues at length upon the court’s instruction No. 10, upon the question that he had instructed the jury to return a verdict of guilty under certain conditions.

Upon motion to correct the record, the original instruction was presented to this court showing that in instruction No. 10, as copied in the case-made, the word “not” had been omitted from between the words “defendant (and) guilty.” This court ordered the case-made corrected so as to speak the truth. With this correction, instruction No. 10 stated the correct proposition of law to the jury.

In Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749, in the second paragraph of the syllabus, this court said:

“In cases depending upon circumstantial evidence, where the circumstances proven are not only consistent with the guilt of a defendant, but are also inconsistent with his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the court or jury.”

The question of the sufficiency of the evidence is for the jury. In this case the jury had an opportunity to consider the weight of the evidence and credibility of the witnesses, their interest or lack of interest about which they testified, their means of knowledge, their demeanor on the witness stand; and, after considering all those facts, they found the defendant guilty of murder and assessed his punishment at life imprisonment. This court has repeatedly held that, where there is any competent evidence to go to the jury, though conflicting, it would not disturb the verdict. Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323.

After a careful examination of the instructions, we hold that they correctly stated the law as applied to the facts in the case. No fundamental or prejudicial errors appear in the record.

The judgment is affirmed.

CHAPPELL and EDWARD,S, JJ., concur.


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    PRISCILLA SMITH v. STATE.
    No. A-7768.
    Opinion Filed April 11, 1931.
    (297 Pac. 1060.)
    Warren B. Phillips, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree, and her punishment fixed by the court at imprisonment for seven years in the state penitentiary.

The evidence of the state was that the defendant killed one John Seward, sometimes known as Joe Smith; that defendant and deceased, although not married, were living together; that on the day of the homicide deceased came home about noon; that defendant procured a revolver from some place near the bed and fired three shots at deceased, one shot taking effect in the head and producing death.

Defendant claims that she took the revolver from deceased, and, while they were scuffling over it, it was accidentally discharged and deceased was killed. Defendant also contended she was insane at the time the homicide was committed.

According to the evidence of the state, it was a simple case of murder. According to the evidence of the defendant, it was an accident. The jury saw the witnesses and heard them testify and were in proper position to judge of their credibility and the weight to he given their evidence. They evidently believed the testimony of the state’s witnesses and were fully justified in the verdict they returned.

Defendant first contends that the court erred in failing and refusing to instruct on the question of self-defense.

In Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012, this court held:

“When there is no- evidence of self-defense it is not error to refuse to instruct on self-defense.” See, also, Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042.

In Roberts v. State, 36 Okla. Cr. 28, 251 Pac. 612, this court said:

“Upon the state of facts shown, where the defendant claims the homicide was accidental, an instruction upon the right of self-defense is unnecessary.”

Defendant next contends that the court erred in telling the jury that he admitted the testimony of alleged acts of violence toward the defendant by deceased, and that said evidence might be considered by the jury in determining whether or not defendant would be guilty of murder or manslaughter, and for no other purpose.

An examination of the record discloses that the court said :

“I let in all the evidence about his having made assaults upon her, or threatened to do so, and I left that in for the reason that in the event the jury found the defendant guilty they would have the right to consider all of this evidence in mitigation of punishment, and that is the only purpose for which the evidence was admitted.”

It appears from this record that the court did not tell the jury that the evidence was admitted for the purpose of determining the guilt or innocence of the defendant of murder or manslaughter, but in mitigation of punishment.

Errors complained of which are not supported by the record will not be considered by this court on appeal.

We have not overlooked other errors complained of by the defendant, but an examination of the record discloses that they are without any substantial merit.

The evidence being sufficient to support tbe verdict of the jury, and tbe errors of law complained of being insufficient to require a reversal of tbe case, tbe cause is affirmed.

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


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    J. B. RALEIGH v. STATE.
    No. A-7777.
    Opinion Filed April 11. 1931.
    (297 Pac. 1060.)
    Claud Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted of larceny of domestic animals, and was sentenced to serve four years in tbe state penitentiary.

Tbe case was tried in September, 1929, and tbe appeal lodged in this court in March, 1930. No briefs in support of tbe appeal have been filed, nor was there any appearance for oral argument at the time tbe case was submitted.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent, and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

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


text:
    ROY WASHINGTON v. STATE.
    No. A-7985.
    Opinion Filed April 11, 1931.
    (297 Pac. 1059.)
    Gaylord R. Wilcox, for plaintiff in error.
    The Attorney General, for the ,State.
   CHAPPELL, J.

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

No briefs have been filed by tbe defendant, and no appearance made for oral argument. We have read tbe evidence, and found tbe same sufficient to support tbe verdict of tbe jury.

We bave examined the pleadings, tbe instructions of tbe court, tbe verdict of tbe jury, and tbe judgment of tbe court thereon, and find tbe same to be regular and legal in all respects.

For tbe reasons stated, tbe cause is therefore affirmed.

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


text:
    BRYAN GOFF v. STATE.
    No. A-7617.
    Opinion Filed Jan. 24, 1931.
    Rehearing Denied April 11, 1931.
    (297 Pac. 317.)
    Guy D. Talbot, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter called tbe defendant, was convicted in tbe district court of Alfalfa county, Okla., of tbe crime of unlawfully, •willfully, wrongfully, and burglariously taking, stealing, and carrying away property belonging to Eid Elkouri, and sentenced to serve a term of two years in the state penitentiary at McAlester, Okla., from which judgment the defendant has appealed to this court.

The appeal was filed in this court on October 25, 1929. No brief has been filed on behalf of the defendant, and no reason is shown why a brief has not been filed. No request has been made for oral argument. Where the record shows that no brief has been filed for the defendant and no appearance made for oral argument, the court will consider the appeal is without merit or has been abandoned.

A careful examination of the record shows there are no fundamental or prejudicial errors. The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    B. F. ROGERS v. STATE.
    No. A-7845.
    Opinion Filed April 11, 1931.
    (298 Pac. 302.)
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county of selling intoxicating liquor, and was sentenced to pay a fine of |250 and to serve 30 days in the county jail.

Judgment was rendered in March, 1930, and the appeal was lodged in this court in May, 1930. No brief in support of the appeal has been filed. Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed and no appearance for oral argument made, •this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

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


text:
    J. H. STIDHAM et al. v. STATE.
    No. A-7792.
    Opinion Filed April 11, 1931.
    (297 Pac. 1059.)

      Melton & Melton, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the .State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted of grand larceny, and each sentenced to serve a year and a day in the state penitentiary.

The case was tried in October, 1929, and the appeal lodged in this court in March, 1931. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and, if none appear, the case will be affirmed.

The case is affirmed.

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


text:
    HARRY WALL et al. v. STATE.
    No. A-7800.
    Opinion Filed April 11, 1931.
    (297 Pac. 1059.)

      Darnell & LaRue, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted of transporting intoxicating liquor, and were each sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The case was tried in November, 1929, and the appeal lodged in this court in April, 1930. No brief in support of the appeal has been filed in this court.

Where an appeal is brought to this court and no brief is filed in support of the petition in error, and no appearance for oral argument made at the time the case is submitted, the case will be affirmed.

The case is affirmed.

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


text:
    ADAM GOODWIN v. STATE.
    No. A-7790.
    Opinion Filed April 11, 1931.
    (297 Pac. 1058.)

      Jas. A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of having illegal possession of intoxicating liquor and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in January, 1930, and the appeal lodged in this court in March, 1930. No' briefs in support of the appeal have been filed nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and, if none appear, the case will be affirmed.

The case is affirmed.

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


text:
    REUBEN POINTER et al. v. STATE.
    No. A-7918.
    Opinion Filed March 21, 1931.
    Rehearing Denied April 11, 1931.
    (297 Pac. 1118.)

      Lewis Hunter, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Comanche county of the crime of disturbing a public assembly and the punishment of the defendant Pointer fixed by the court at a fine of $150 and imprisonment in the county jail for 30 days, and the punishment of the defendant Hendricks fixed by the court at a fine of $50 and imprisonment in the county jail for 15 days.

Judgment was rendered on the 3d day of March, 1930, and the appeal filed in this court on the 1st day of July, 1930, and no briefs were filed and no appearance for oral argument made.

An examination of the record discloses that the evidence is sufficient to support the verdict of the jury, and that no reversible errors were committed by the trial court.

The cause is therefore affirmed.


text:
    BILL BOYCE v. STATE.
    No. A-7912.
    Opinion Filed March 21, 1931.
    Rehearing Denied April 11, 1931.
    (297 Pac. 1117.)

      Ray & Thomas, for pliantiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and 90 days’ imprisonment in the county jail.

Judgment ivas rendered on the 3d day of March, 1930, and the appeal filed in this court on the 28th day of June, 1930; no briefs have been filed and no appearance for oral argument made.

A careful examination of the record discloses that the evidence is sufficient to support the verdict of the jury, and that no reversible errors were committed by the trial court.

The cause is therefore affirmed.


author: EDWARDS, J.

text:
    OBEL McMANUS et al. v. STATE.
    No. A-7424.
    Opinion Filed March 7, 1931.
    Rehearing Denied April 18, 1931.
    (297 Pac. 830.)

      George W. Martin and Blanton, Osborn & Curtis, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Kiowa county on a charge of rape, and defendants Pitts, Tidmore, and McManus were sentenced to serve a term of 25 years in the penitentiary; defendants Brumley and the two Wards were each sentenced to serve a term of 20 years in the penitentiary.

Briefly stated, the testimony for the state is about as follows: Faye Pipkin, who resided with her father near Mountain View, was taken to a church service by one Jester. While there, Brumley told her not to return home with Jester, as some boys were going to beat him up. She then asked Tidmore to take her home. Before they started home, McManus called Tidmore to the rear of the car and had a conversation with him. Tidmore then left with her in his car and a short distance from town, near a gravel pit, he cut off his engine and the car rolled back to the railroad track. Another car was following them with the other defendants and here a difficulty, apparently a sham, ensued between McManus and Tidmore. McManus and Brumley pulled the girl out of the car and advised her to run. She went up the bank some 60 feet from the car, and, the difficulty having ended, Tidmore and McManus took her up the railroad track about 300 feet and informed her of their intentions. There they held her and each defendant had sexual intercourse with her, two of them twice. The entire transaction was continuous and accomplished by force. Tidmore then took prosecutrix home and she immediately notified her father, who attempted to seize Tidmore, but he fled. The father then took prosecutrix to Mountain View and notified the officers, and all the defendants were apprehended that night. The girl was examined by a physician, who testified her condition showed recent excessive intercourse; that her privates were swollen and the blood appeared about to burst out. The defense was alibi for all the defendants, except Tidmore. They denied that they were at the place claimed by prosecutrix or knew anything of the alleged crime. Tidmore admitted taking the girl home, but denied any act of intercourse. We deem it unnecessary to recite any further details.

Among the contentions made is error in overruling the application for a continuance. The application sets out that Claude Lewis would testify that on the morning, after the alleged offense he had a conversation with prose-cutrix in which she said, in substance, that she told her father of the claimed offense in order to placate him. That he scolded and threatened to beat her. That she did not expect him to have the boys arrested and her statement was not true. A subpoena was issued for this witness November 20. It was returned “not found” November 24. The trial was on December 10. During this interval no diligence to procure the witness was made. The application states that the information concerning the witness was from relatives in Garvin county, his usual place of residence, who expected him to return at any time, but no subpoena to that county was issued. It does not appear that there is any likelihood of his attendance at the next term of the court and no one appeared to know the witness’ whereabouts. To entitle a defendant to a continuance on the ground of an absent witness he must have exercised diligence to procure the witness in the first instance. There was no error in overruling the application.

Complaint is made that the court committed fundamental error in his instructions, particularly in Nos. 6, 9, and 10. No. 6 correctly states that all persons concerned in the commission of a crime, whether they directly commit the act or only aid and abet, are principals. Nos. 9 and 10, in substance, tell the jury that, if defendants or any of them, by force and violence overcoming the resistance of the prosecutrix, did rape her or did aid and abet any of the other defendants in the commission of such crime, then the jury should find such defendants committed the crime or, aiding and abetting in its commission, guilty as charged.

The argument is that under the evidence eight different acts of intercourse were proven, and that each is a separate crime both as to the perpetrator and to any other of the defendants who aided and abetted in its commission, and, there having been no election of the particular act on which the state relied, the defendants were tried for more than one offense.

It has been said in substance many times by this court that a defendant may be tried for only one offense at a time, and, where there is evidence tending to prove two or more distinct offenses, more than one of which might support a verdict of guilty, the state is required to elect the particular act upon which it will rely for a conviction. This is necessary for the reason that a defendant has a constitutional right to be put on trial for a single offense and for the further reason that he has a right to a verdict in which all the jurors concur upon the same criminal act or transaction. Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442; Williams v. State, 16 Okla. Cr. 54, 180 Pac. 559; Carter et al. v. State, 24 Okla. Cr. 1, 215 Pac. 440; Longshore v. State, 27 Okla. Cr. 128, 225 Pac. 573, 574; Lee v. State, 32 Okla. Cr. 117, 240 Pac. 148; Cooper v. State, 31 Okla. Cr. 217, 238 Pac. 503.

In cases of statutory rape other acts of sexual intercourse may be proven for the purpose of corroboration and as showing the intimate relations of the parties, but a conviction must be based on one act. Where more than one act is proven occurring at different times and places, it is the duty of the trial court upon motion to require the state to elect upon which of the several acts it intends to- rely for a conviction, and, if no motion is made, the court of its own motion should require the state to elect or should treat the act of which the state first introduces evidence which tends to prove the offense as an election. Cooper v. State, supra; Pope v. State, 24 Okla. Cr. 213, 217 Pac. 498. We do not doubt the soundness of this rule. But in cases of rape by force where two or more persons at the same time and place and as a part of the same common design and purpose, acting together in a continuous transaction, ravish a female, the two> or more parties each having sexual intercourse, the rule stated has no application. In the case now under consideration, force is an essential ingredient, and the evidence is that each of the defendants was present during the several acts of intercourse, assisted in the actual perpetration of the crime by holding the prosecutrix and otherwise aiding and abetting. There was one continuous application of force, and, while there was penetration by each of the defendants, it was in fact a single continuous transaction. If any particular interval of time intervenes between the separate acts, or if they occur under such circumstances that there might be a basis for a jury to believe that one or more of the acts were committed and a reasonable doubt might exist as to the others, there must be an election. But where all the evidence tending to prove the crime is that is was a continuous act and application of force, and there is no basis in the evidence for a belief or a reasonable doubt that a part of the transaction occurred and a part did not occur, nor that one or more of the accused may be guilty and the others not, then there is but one crime, one continuous act, and there need be no election. In the instant case, all the evidence as to the actual offense is that the prosecutrix was thrown on the ground and was not permitted to rise until all the defendants had had sexual intercourse with her, and that all such acts by all the defendants were pursuant to a common purpose, intent, design, and conspiracy and by an acting together of defendants in a continuous application of force. There is no basis in the evidence under which the jury could believe or entertain a reasonable doubt that a part of the transaction occurred and a part did not occur.

The particular point here raised appears not to- have been considered in any of the cases of first-degree rape in this state. In Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073, a case of rape committed by force by three persons acting together upon a female at the same time and place, and where they were jointly charged as a part of a common purpose and design, and two of the accused were convicted, there was in effect an election of the act of intercourse by one of the accused. In the case of Gracy v. State, supra, where there was evidence of two acts by different persons, there was an interval of time between, the perpetration of the acts which made the offense severable. In the cases of Lee v. State, supra, and Carter et al. v. State, supra, the same situation exists. In the case of Timmons et al. v. State, 44 Okla. Cr. 200, 280 Pac. 314, 315, where each of two defendants ravished a female, this court in reversing the case because of a refusal of the trial court to require an election said:

“The prosecutrix testified to two separate and distinct acts of intercourse, one with the defendant Glenn Tim-mons, and one with the defendant Thelmar Thompson, and that each of such acts of intercourse took place in the absence of the other defendant, and was accomplished without her consent, by force and violence overcoming her resistance.”

There are few cases on the particular point under consideration. Somewhat analogous is the case of People v. Petruzo, 13 Cal. App. 569, 110 Pac. 324, 325, a homicide case in which it was held in substance that, where two persons at about the same instant fired a shot at a third person who was killed and there was doubt as to which fired the shot, the accused, tried separately, might be convicted whether he fired the shot or aided and abetted the other participant who also fired a shot. The case most nearly in point on the facts to which our attention has been called or we have been able to find is State v. Sykes, 191 Mo. 62, 89 S. W. 851, 856, in which it is said:

“Defendant complains that he was tried, as shown by the evidence and instructions of the court, for two crimes; i. e. (1) aiding and abetting Byers in the commission of a rape upon the prosecutrix, and (2) the commission of the crime by defendant himself. The argument is that by proceeding this way the defendant was not informed of the nature and the cause of the accusation against him. Upon the other hand, the state contends that only one grime was committed, although there were two separate and distinct rapes upon the prosecutrix — one by Byers, aided by the defendant, and the other by the defendant. Each of these acts constituted a part of this transaction and crime, and it was competent to' prove both against defendant as part of the res gestae. This question was before this court in State v. Duffy, 124 Mo. 1, 27 S. W. 358, wherein Patrick Murphy and defendant Duffy were originally jointly indicted for rape upon Mrs. Bose, but subsequently the indictment as to Duffy was quashed, and he was thereafter separately indicted. The officer who arrested Duffy found Patrick Murphy on top of Mrs. Bose in the act of ravishing her, and Duffy sitting about five feet away on a board. Mrs. Bose testified that both Murphy and Duffy seized her and ravished her. The court permitted the state to show Murphy’s connection with the offense for which Duffy was upon trial. Duffy claimed this was error. This court said: ‘The third and sixth assignments are substantially the same, in which it is claimed the court committed error in allowing evidence to go to the jury in relation to Murphy’s connection with the offense for which the defendant herein was upon trial. Murphy and Duffy were alike guilty. They acted together in concert and what one did in the presence of the other, in committing the offense, was the act of the other, as much as if done by himself.’ * * * The acts of Byers and defendant in assaulting and ravishing the girl constituted but one offense, the result of one common purpose, and the fact that Byers first assaulted her while Sykes looked on, and after he got through defendant did the like, did not make two' separate and distinct offenses.”

It is earnestly argued on behalf of defendant Brum-ley that, as he is shown by the evidence to have been under the age of eighteen years, and the prosecutrix is shown to have been above the age of fourteen, he is within the protection of the latter part of section 1835, Comp. Stat. 1921, which is: “* * * Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time of such act.” iSee, in this connection, Short v. State, 42 Okla. Cr. 437, 276 Pac. 703; Brasel v. State, 48 Okla. Cr. 403, 291 Pac. 807. This provision is held to be defensive. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668; Williams v. State, 17 Okla. Cr. 452, 190 Pac. 892. It was not contended at the trial that the act of intercourse accomplished by Brumley was with her consent; the defense is that such act did not take place, that is, alibi. Under the testimony for the state, the act of intercourse of Brumley was a part of the entire crime accomplished by force, and the testimony of defendant and his witnesses that he was not present fixed the issue. There is no consistency in the argument that the act was not committed, but, if committed, was with consent.

No other point of sufficient importance to require discussion is presented.

The case is affirmed.

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


text:
    BENNIE L. RODGERS v. STATE.

      No. A-7755.
    Opinion Filed March 28, 1931.
    (297 Pac. 823.)
    George W. Partridge (John J. Carney, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Logan county of the crime of burglary in the second degree, and his punishment fixed by the court at imprisonment in the state penitentiary for five years.

The evidence of the state was that the defendant, in company with three girls and two* other men, left Oklahoma City on the night of August 27, 1929, and drove to Guthrie, where the other two men broke into and entered the residence of Mrs. Charles Frazier, in said city; that defendant and the three girls and the other two men talked over and planned the burglary and went to Guthrie for the purpose of committing the crime; that defendant owned and drove the car to Guthrie, taking the three girls and the two men as passengers; that, when they reached the house to be burglarized, the other two' men got out of the car and broke into and entered the house; that defendant and the three girls remained in the car and drove the same around the block several times, waiting for the men; that an alarm was given, and the officer’s came and caught the two men in the house; that the back door had been opened and also a screen on one of the windows; that, after the two men were taken to the police station and had told who accompanied them, the officers went back and arrested the defendant and the three girls who were still driving the car around the block, apparently waiting for the other two men; that defendant first denied that any other persons were with him, but, when taken to' the police station and confronted with the other men, who stated he was with them, he admitted that he was a party to the transaction.

The other two men entered pleas of guilty of the burglary, and were sentenced to five years in the state penitentiary. Two' of the girls stood trial and were acquitted, and the third one turned state’s evidence and was not prosecuted.

Defendant contends, first, that there is a fatal variance between the information and the proof of the state.

Under this assignment, defendant contends that, because the evidence of the state discloses that the defendant was not out of the car and never entered the premises burglarized, and took no< part in the actual burglary itself, therefore he could not be guilty of the crime charged under the evidence of the state.

Section 2574, C. O. S. 1921, is as follows:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act consituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

No* additional facts need be alleged in an information against an accessory than are required against his principal. All who aid and abet in the commission of an offense are principals under section 2574, supra, and the information need not state whether the accused committed the act alone or in conjunction with others confederated with him. Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040; Wertzberger v. State, 25 Okla. Cr. 1, 218 Pac. 721; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723; Davis v. State, 44 Okla. Cr. 141, 279 Pac. 976.

Under the authorities above cited, the information was sufficient to charge the offense, and the proof upon the part of the state was not at variance with the allegations of the information, but directly and sufficiently support the same.

Defendant next contends that there is a total failure to prove venue.

Katie Wilson, testifying for the state, said:

“Q. How did you come tO' Guthrie? A. In a Hup-mobile touring car.
“Q. What did you come up here for. A. To burglarize Mrs. Frazier’s house.
“Q. Who asked about where the house was after you got to Guthrie? A. Nobody asked about it.”

The defendant, testifying, for himself, said:

“Q. Were you in Guthrie the night of the 27th? A. Yes, I was late.”

Ben Pickering testified that he was a police officer living at 109% West Harrison, in the city of Guthrie; that he was called to 523 East Cleveland, the home of Mrs. Frazier, to arrest two men inside of the house burglarizing the same, and that shortly afterward defendant and three women were arrested as they were driving around the block where the house was located.

In Burton v. State, 50 Okla. Cr. 33, 295 Pac. 622, this court held that venue in a criminal case need not be proved beyond a reasonable doubt, and that it may be established by circumstantial evidence.

The evidence of these witnesses, with the facts and circumstances in the case, clearly establish the venue of the crime as being in the city of Guthrie. This court will take judicial notice that the city of Guthrie is the county seat of Logan county and is within the state of Oklahoma.

Defendant complains of other errors, but they are not of sufficient importance to require a discussion in this opinion.

The evidence supports the verdict of the jury, and the errors complained of are without substantial merit. The cause is therefore affirmed.

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


text:
    J. J. NEELD v. STATE.
    No. A-7737.
    Opinion Filed March 28, 1931.
    Rehearing Denied April 18, 1931.
    (297 Pac. 825.)
    Bond & Bond, for plaintiff in error.
    The Attorney General, for the .State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Stephens county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 60 days.

The evidence of the state was that the defendant was the proprietor of the Thompson Hotel in the city of Duncan, and had been for three or four years prior to the time this raid was made; that, as the officers went into the hotel, the defendant pulled a door to on one of the rooms; that the officers followed him in; that in one of the rooms they found a bed, a dresser, a couple of chairs, a little stand table, and water pitcher, some glasses, sugar, and spoons on the little table, two or three empty whisky bottles and some whisky in the pitcher; that they found a hole in the floor large enough to permit the insertion of a half-gallon jar; that they knew the hole was there and that the cover would fit it, because they had been there and raided the place before; that about a half-gallon of whisky had been, poured out in the hole recently; that they found about 200 empty jars, with six that contained some whisky and smelled strongly of whisky; that this place was a place of public resort where people congregated for drinking; that the place was a regular hotel where people stopped; that there was a register, and numerous people stopped there as transients, like they do at all hotels; that drunk people had been arrested in the hotel and others coming from the hotel; that one of the officers had seen whisky sold there in the room where defendant was arrested ; that the place was frequently raided as a disorderly house.

Defendant did not take the witness stand, but introduced two instruments purporting to show that he had leased the premises to another party.

The evidence of the state is sufficient to support the verdict of the jury and the cause must be affirmed, unless the errors complained of by the defendant are sufficient to require a reversal of the case.

Defendant contends that the court erred in admitting evidence of the reputation of the place, without first showing that the place was a place of public resort.

The state first introduced evidence that the place was a place of public resort before offering its proof of reputation.

The defendant next contends that the trial court erred in overruling his motion for a new trial on the ground that the bailiff had communicated with the jury pending their verdict.

The record discloses that the bailiff was called to the door of the jury room by one of the jurors and asked to communicate with the judge; that this communication was delivered to the judge iu the presence of the county attorney and defendant’s counsel; that thereupon the trial judge, in the presence of the county attorney and defendant’s counsel, directed the bailiff to return to the jury room and advise them that their request could not he granted. The bailiff testified that he did not converse with the jurors about the case, and did and said nothing to influence the jury in reaching their verdict.

While this proceeding is irregular, it is not fatal to the verdict unless it is made to* appear that the rights of the defendant were prejudiced thereby.

There being nothing in the record tending to prejudice the rights of the defendant, the court did not err in overruling the motion for a new trial upon such ground.

The errors of law complained of by the defendant being without substantial merit, the cause is affirmed.

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


text:
    RAYMOND ESKEW v. STATE.
    No. A-7904.
    Opinion Filed April 18, 1931.
    (298 Pac. 308.)

      J. H. Hays, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Love county of assault with intent to rape, and was sentenced to serve a term of three years in the state reformatory at Granite, Okla.

The case was tried in December, 1929, and the appeal lodged in this court in June, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and, if none appear, the case will be affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    JEFF D. HARRIS v. STATE.
    No. A-7846.
    Opinion Filed April 18, 1931.
    (298 Pac. 309.)

      James H. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant was tried on a charge of murder and was convicted of manslaughter in the first degree and his punishment fixed at 50 years in the state penitentiary, from which judgment and sentence he appeals.

The substance of the evidence on the part of the state is as follows: The defendant, together with Snake Thomasson, a man by the name of Williams, and one by the name of Little, went to the home of James Harris about 11:30 o’clock on the 1th day of July, 1929. The evidence tends to show that Thomasson was a prohibition officer. Neither of the officers had any search warrant to search the premises of James Harris. When the officers arrived at James Harris’ home, James Harris, his wife, two children, and Oscar Lowery, a brother of Mrs. Harris, were sitting on the back porch of James Harris’ home. The defendant appeared in the yard, of James Harris’ home and without making himself known to any one as to what authority he claimed to be there, he went to a chicken coop in the yard, kicked it, and asked what it was. Oscar Lowery replied it was a chicken coop. Prom the coop the defendant went to the corncrib or barn of the defendant and searched through it. The testimony further tends to shows that when the defendant went to the corncrib of James Harris and opened the door and went in, that James Harris left the porch and went into the house. That the defendant left the corncrib and came towards the house and had a pistol in his right hand. He came to' the house and went in the house of James Harris by the kitchen door. Mrs. Harris followed the defendant into the house, and when she got into the house her husband was taking some shells out of a trunk. Defendant shot at James Harris with the pistol, and James Harris ran into the west room and defendant followed him. James Harris ran out of the house. The defendant followed him onto the porch. Oscar Lowery was in the yard near the porch. The defendant shot Lowery, from the effects of which he died. The testimony further shows that Lowery had no gun in his hand or about his person at the time the defendant shot him. A statement made by Oscar Lowery at about 11 a. m., on the day he died, shortly afterward, tends to show that when the defendant shot him he was unarmed and was begging him not to shoot him. After the shooting the defendant made a statement in the presence of several witnesses that the reason he went into the Harris house was that they were in there pouring out whisky. Several of the parties then Avent in the house and could find no evidence of any whisky having been poured out. After the defendant killed Oscar Lowery, the’ testimony shows that he followed James Harris northwest of the house and shot him. The defendant, testifying in his own behalf, stated that when he got to the James Harris home, the deceased and Harris’ family were sitting on the porch. That he told them he was a federal officer and asked permission to look around, and that one of them told him to go ahead. He admitted he went to the chicken coop and from there to the corn-crib. He states that as he left the corncrib he discovered that the Harris family and Oscar Lowery had gone into the house. That he started to leave the place, and as he passed the house he saw the barrel of a shotgun protruding through the door. That he dodged and was shot about the face and head; James Harris shot him with a shotgun; as he returned to the porch, James Harris and Oscar Lowery both had shotguns and Lowery was trying, to shoot him when he fired the shot that killed him. The defendant also' introduced several character witnesses tending to show that he was a peaceable, law-abiding citizen. He also testified that when he and his associate left the Harris home, they took two shotguns with them. In rebuttal Wesley Lowery, Mrs. Frank Keiffer, and Clarence Keiffer testified that after the shooting was over Wesley Lowery came from his home, which was a short distance from the Harris home, and brought with him a single-barreled shotgun and laid it down in the yard near where he discovered his brother’s body. This is in substance the testimony.

The defendant has assigned eight errors alleged to have been committed by the trial court. In defendant’s brief he has only discussed three propositions. The first one is, the court erred in permitting Wesley Lowery, Mrs. Keiffer, and her son, to testify in rebuttal to the fact that Wesley Lowery brought a shotgun with him when he came down to the place where his brother was killed. Second, that the court erred in admitting the statement claimed to be the dying declaration of the deceased Oscar Lowery. Third, that the verdict of the jury is not sustained by sufficient evidence.

The evidence in this case is amply sufficient to sustain the verdict, and this judgment should be affirmed unless the other errors complained of and argued by the defendant are sufficient to warrant a reversal. Defendant in his brief argues that the American Legion was very strong and active in the prosecution; however, from an examination of the record we fail to find any facts which justify or sustain this contention of the defendant.

The next question discussed by the defendant is error of the court in permitting- testimony to be introduced in rebuttal which he insists was testimony in chief and should have been introduced in chief or not at all. An examination of the record clearly shows that the witnesses who testified in rebuttal were called for the purpose of showing that there was but one shotgun at James Harris’ home at the time Oscar Lowery was killed and to rebut the statements in defendant’s evidence that when the officers left the place they took with them two shotguns. The court did not err in permitting the witnesses to testify in rebuttal to the facts stated by them.

The next question argued by the defendant is the question of the admission of the statement claimed to be the dying declaration of the deceased, Oscar Lowery. The testimony of Lillian Hunt shows that she went to the hospital with Joe Reily, assistant county attorney, and she took in shorthand the questions of Mr. Reily and the answers of Oscar Lowery and transcribed her shorthand notes in typewriting, and that Exhibit No. 6 is a correct copy of the questions propounded to Mr. Lowery and Mr. Lowery’s answers. The witness admitted that the statement after it was transcribed was not read to Oscar Lowery, nor was it signed by him, but she stated positively that the copy prepared by her from her shorthand notes correctly stated the questions propounded to Oscar Lowery and the answers given by him. It has been repeatedly held by this court that in order that a dying declaration may be admissible in evidence, it should be made to clearly appear that such statement was made under a well-founded apprehension of immediate or impending death and that all hope of recovery has been abandoned. This proof may be made from what the injured person said or where from the nature, and extent of his injuries it is evident that he must have known that he could not have survived. The proof in this case shows that Oscar Lowery died about three hours after the statement introduced in evidence was made, and the statement introduced as his dying declaration shows that he realized he would not get well. In Foley v. State, 11 Wyo. 464, 72 Pac. 627, 629, the Supreme Court of Wyoming in part said:

“The statements were written down by one of the physicians in attendance, and the paper was signed and sworn to by him and the other physician and one Mrs. O’Connor. It was not read' over to the deceased, and was not signed by him. Under such circumstances, the writing is a mere memorandum. It may be used to refresh the memory of the witness, but is not itself evidence of the declarations of the deceased. * * * If, however, the statements contained in the paper were admissible as dying declarations, when presented to the jury by competent testimony, we are not prepared to say that the admission of the paper itself, though erroneous, was prejudicial to the defendant or reversible error. The two physicians Were present as witnesses, and testified that the writing contained substantially the dying declarations of the deceased. They were competent to testify to the declarations, refreshing their recollection by reference to the writing, and the error is thus rather technical and formal than substantial or material.”

Section 2822, Comp. St. 1921, is as follows:

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

The admission of the statement of deceased did not result in a miscarriage of justice or a violation of a constitutional or statutory right of the defendant. The other errors complained of are without merit.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    ED. McGILVERY v. STATE.
    No. A-7839.
    Opinion Filed April 18, 1931.
    (298 Pac. 312.)
    Sam S. Gill, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the ¡State.
   CHAPPELL, J.

Ed. McGilvery, hereinafter called defendant, was convicted in the county court of Oklahoma county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The defendant insists on all his assignments of error, but argues them under the proposition of law that: “The court was without jurisdiction to try the defendant because no lawful warrant had been issued for his arrest.”

It appears from the record that an information was filed against the defendant on the 12th day of September, 1929, and a warrant issued thereon signed by Cliff Myers, court clerk. The record further shows that on the 12th day of September, 1929, the defendant was arraigned and entered a demurrer to the information, and as one of the grounds for such demurrer alleged that the warrant had not been drawn, signed, and filed as provided by law. The record further discloses that on the 12th day of September the defendant was released on bond. On said date the demurrer to the information was overruled. There is nothing in the record to show that the attention of the trial court was ever called to any motion to quash the warrant, or that any action on such a motion was demanded by the defendant.

This court has repeatedly held that the clerk of the county court (court clerk) is without authority to' issue a warrant of arrest in a misdemeanor case, for the reason that such an act is a judicial one, and must be performed by the court or by a magistrate. Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376; Beasley v. State, 26 Okla. Cr. 398, 224 Pac. 376; Bearden v. State, 29 Okla. Cr. 398, 233 Pac. 1100.

The only purpose of issuing a warrant of arrest is to bring a defendant before the court. For a warrant to comply with the constitutional provisions, it must be supported by oath or affirmation. There is no contention but what the warrant in this case was supported by oath or affirmation. The only contention is that it was irregularly issued, in that it was issued by the court clerk under the seal of court, instead of by the judge.

The decisions of courts are uniform to the effect that jurisdiction of the person may be waived and that it is waived whenever the defendant enters into a recognizance for his appearance or pleads to the merit of the action.

Whenever a defendant desires to question the jurisdiction of the court over his person, he must do so at the very first opportunity and in such manner as not to- surrender to the court the jurisdiction of his person.

In Keeler v. State, 24 Okla. Cr. 206, 217 Pac. 228, this court said:

“Where the defendant pleads to the merits of a criminal action, he waives all objection to the illegality of his arrest.”

A demurrer is one of the pleadings authorized by statute, and, when the defendant interposed his demurrer, he attacked the merits of the prosecution, and by so doing he entered a general appearance and waived jurisdiction over his person.

In the case of United States v. Yakutat & Southern Railway Company, 2 Alaska Rep. 628, the United States District Court for Alaska held:

“Defendant made a special appearance by attorneys, and denied the jurisdiction of the court, but also attacked-the sufficiency of the indictment. Held that by attacking- the sufficiency of the indictment, the appearance became general, and the defendant must plead.”

It further appears from the record that the defendant entered into a recognizance on the 12th day of September, 1929. There is nothing in the record to indicate that the defendant was enlarged on bond after tbe action of the court in overruling his demurrer. It must affirmatively appear from the record that the defendant objected to his arrest and moved to quash the warrant before he filed his demurrer and before being enlarged upon bond.

These facts not being disclosed by the record, the defendant’s contention is without merit.

For the reasons stated, the cause is affirmed.

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


text:
    W. H. (SKINNIE) CHADWICK v. STATE.
    No. A-7835.
    Opinion Filed April 18, 1931.
    (298 Pac. 1069.)
    Mounts & Chamberlin, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

An examination of the record discloses that there is no competent evidence to connect the defendant with the commission of the offense charged.

The cause is therefore reversed.


text:
    WILL PARKER v. STATE.
    No. A-7811.
    Opinion Filed April 18, 1931.
    (298 Pac. 1069.)
    Stanley B. Catlett and Eugene N. Catlett, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error entered his plea of guilty to said charge on the 11th day of March, 1930, and was at that time adjudged by the court to pay ¿ fine of $100 and be imprisoned in the county jail for a period of 60 days.

On the 26th day of March, 1930, defendant filed his application for leave to withdraw his plea of guilty and enter a plea of not guilty, which was denied by the court.

The appeal was filed in this court on the 16th day of April, 1930. No briefs have been filed.

An examination of the record discloses no reversible error.

The cause is therefore affirmed.

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


text:
    WILL PARKER v. STATE.
    No. A-7812.
    Opinion Filed April 18, 1931.
    (298 Pac. 1069.)
    Stanley B. Catlett and Eugene !N. Catlett, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error entered his plea of guilty in the case on the 11th day of March, 1930, and was at that time adjudged by the court to pay a fine of $100 and be imprisoned in the county jail for a period of 60 days.

On the 26th day of March, 1930, defendant filed his application for leave to withdraw his plea of guilty and enter a plea of not guilty, which was denied by the court.

The appeal was filed in this court on the 16th day of April, 1930. No briefs have been filed.

An examination of the record discloses no reversible error.

The cause is affirmed.

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


author: DAYENPOBT, P. J.

text:
    EDWARD TAYLOR v. STATE.
    No. A-7997.
    Opinion Filed April 18, 1931.
    (298 Pac. 307.)
    Bishop & Short, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAYENPOBT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of forgery in the first degree, and was sentenced to serve seven years in the state penitentiary.

The case was tried in April, 1930, and the appeal lodged in this court in October, 1930. No- briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no- fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWABDS, JJ., concur.


text:
    O. A. SMITHEY v. STATE.
    No. A-7875.
    Opinion Filed April 18, 1931.
    (298 Pac. 307.)
    Billingsley & Stanley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant was convicted of manslaughter in the second degree and was sentenced to serve three years in the state penitentiary.

The case was tried in January, 1930, and the appeal lodged in this court in June, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    RUTH SHEFFIELD v. STATE.
    No. A-7838.
    Opinion Filed April 18, 1931.
    (298 Pac. 306.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Ruth Sheffield, hereinafter called defendant, was convicted in the county court of Oklahoma county of the unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $350 and confinement in the county jail for a period of 90 days.

The evidence of the state was that on searching defendant’s premises they found five gallons of whisky put up in half-gallon fruit jars, and that defendant admitted it was her whisky. Defendant denied that the whisky was hers or that she had made any admissions to the officers.

Defendant contends that this evidence was insufficient to support the verdict of the jury.

There is a clear conflict in this evidence. The credibility of the witnesses and the weight to be given their testimony is for the jury. ' This court will not disturb the verdict of the jury where there is auy competent evidence to support the same.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    CHARLIE MOBBS v. STATE.
    No. A-7797.
    Opinion Filed April 18, 1931.
    (298 Pac. 306.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of transporting intoxicating liquor and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days.

The testimony, in substance, on the part of the state, is that the sheriff and two> other officers of Kiowa county were driving on the streets of the city of Hobart and saw the defendant come out of an alley, watched him cross and recross a street. The sheriff called defendant by name, and the defendant came np near the car in which the sheriff and the other parties were driving, and when defendant discovered the parties he reached in his pocket and took out a bottle of whisky and dropped it down by his feet. The sheriff saw him drop the bottle, got out, picked it up, and arrested the defendant and filed a charge of transporting. The defendant contends that this whisky was obtained from him by an unlawful search of his person, and that he was first unlawfully arrested on mere suspicion, and that the officers searched him and found no whisky on his person, but discovered a pint in the weeds a short distance from where the arrest had been made. The testimony is in conflict. The jury heard the testimony and found the defendant guilty. This court has repeatedly held that, where there is any competent testimony to sustain the verdict of the jury, it would not disturb it. In Rhodes v. State, 46 Okla. Cr. 219, 287 Pac. 812, in the first paragraph of the syllabus, the court said:

“A peace officer without a warrant may arrest a person for any violation of the prohibitory liquor law committed in his presence and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

The evidence in this case was legally obtained and is sufficient to support the verdict of the jury.

EDWARDS and CHAPPELL, JJ.. concur.


text:
    VESS ADAMS v. STATE.
    No. A-7970.
    Opinion Filed April 18, 1931.
    (298 Pac. 305.)
    Champion, Champion & Fischl, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of grand larceny and was sentenced to serve 2% years in the state penitentiary.

The case was tried in March, 1930, and the appeal lodged in this court in September, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.