text:
    A. D. BERSHEARS v. STATE.
    No. A-4920.
    Opinion Filed July 15, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 326.)

      I. L. Cook and H. H. Cook, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst., Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for rape in the second degree and sentence in' accordance with the verdict of the jury for a term of 10 years in the penitentiary.

The information charged that in Atoka county on or about the 28th day of April, 1923, “A. D. Bershears* a male person over the age of 18 years, then and there being, did then and there, willfully, wrongfully, unlawfully and feloniously, make and commit an assault upon one Annie Brandon, a female person, under the age of 18 years and of the age of 17 years, said Annie Brandon not being then and there the wife of him, the said A. D. Bershears, and did then and there have sexual intercourse with her, the said Annie Brandon, the said Annie Brandon being then and there a female person of previous chaste and virtuous character, contrary to,” etc.

A demurrer was duly interposed on the grounds that more than one offense is charged in the information; that the charges are so mingled and included in one count as to make the information duplicitous; and that the facts stated do not constitute a public offense. After verdict and before judgment, the defendant moved in arrest of’ judgment upon the same grounds.

It is urged that the information is insufficient he-cause it does not allege that the defendant “feloniously did ravish and carnally know, forcibly and against the will of said female, or at least set forth sexual intercourse, accomplished without the consent of the female.”

Rape in the second degree, as charged in the information, is defined in section 1834, C. S. 1921, second subdivision, as follows:

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

A charge of rape in the second degree, as defined by this subdivision, would be fully sustained by proof of carnal intercourse with a female “over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character,” whether accomplished with or without the consent of such female. Davis v. State, 17 Okla. Cr. 604, 191 P. 1044.

The point that the information does not state facts constituting the crime of rape is not well taken. It certainly does state facts constituting that crime under the second subdivision of section 1834. Neither is there anything in the point that it is duplicitous. The only crime charged is that of rape in the second degree. It follows that the information is sufficient, and the demurrer thereto and the motion in arrest of judgment were properly overruled.

The other questions presented require a brief statement of the facts in evidence. The undisputed facts are that the prosecutrx was 17 years of age and would have been 18 on the following 25th of February; that her mother married the defendant when she was about 2 years old; that she was not the wife of the defendant.

The testimony of the prosecuting witness was to the effect that the defendant had for about 2 years on several occasions compelled her by threats and intimidation to submit to acts of sexual intercourse; that he would threaten to kill her if she did not submit; that in the month of July, 1922, a picnic was held in the town of Farris, and the defendant, her mother, and the rest of the family attended the picnic, and returned to the farm about midnight; that the family slept in beds in the yard, the defendant and her mother in one bed, the prosecutrix and her 13 year old half-sister in another bed; that some time after they had gone to bed the defendant came to her bed and forced her to submit to sexual intercourse.

Eula Bershears testified that her age was 13 years; that the defendant was her father; that after they re-, turned from the picnic at Farris she was sleeping with her half sister. Annie Brandon; that she woke up, and Annie was crying, and her father was on top of her in. the bed.

Dr. Hill, a duly licensed and practicing physician, testified that at the reouest of the countv attorney he made an examination of the person of the prosecutrix, and found a ruptured hymen.

As a witness in his own behalf the defendant testified that his age was 50 years; that he married Annie Brandon’s mother July 6,1908; that on several occasions he had occasion to chastise and reprimand Annie for staying out after night and keeping company with different boys; “that he caught a fellow hugging and kissing her in the house one night, and blessed him out, and the girl got mad”; that she brought this case against him because he chastised her for her misconduct. He denied that he ever did have sexual intercourse with her that night or at any other time.

Tiny Wilson testified her age was 21 years; that the defendant, A. D. Bershears, was her father; that she saw Annie Brandon and Charley Martin lying down on the bed together; that on another occasion she saw them hugging and kissing each other.

In rebuttal five or six witnesses qualified as character witnesses, and testified that the reputation and character ■of the prosecutrix, Annie Brandon, as to being of chaste and virtuous character in that community was good and very good.

Charley Martin testified that his age was 18 years; that he was engaged to be married to Annie Brandon, and the date for their marriage was set; that he had kept company with her frequently for several months; that he never had sexual intercourse with Annie Brandon.

Complaint is made that the court erred in giving an instruction which reads as follows:

“No. 8. You are instructed that a girl 17 years of age is presumed in law to be a person of previous chaste and virtuous character, unless evidence is offered by the defendant to the contrary, and then the court instructs you that the burden would be upon the state to prove such previous chaste and virtuous character to your satisfaction beyond a reasonable doubt. (Excepted to by defendant.)
“J. H. Linebaugh, District Judge.”

It is argued that the foregoing instruction did not correctly state the law. A review of the various decisions of this court upon the subject we believe unnecessary.

In Davis v. State, supra, it was held that:

“In a prosecution for statutory rape, where the previous chastity of the female is an essential element of the offense as defined by the statute, it cannot be said that the law presumes that the female was not of chaste character when the act was committed, although such chaste character must be alleged, and the burden is on the state to prove beyond a reasonable doubt that she was of previous chaste and virtuous character.”

In the opinion the authorities are reviewed.

While said instruction is not a correct statement of the law, the court further instructed the jury that the burden was upon the state to prove the material allegations of its information beyond a reasonable doubt, and, if it failed to do this, the jury should acquit the defendant.

We are clearly of opinion that, where there has been no refusal of a proper instruction requested, and none was requested in this case, the instruction given did not constitute prejudicial error. Upon the record before us it clearly appears that the defendant could not have been harmed by the error complained of.

Our Code of Criminal Procedure provides:

“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.” Section 2822, C. S. 1921.

The mandatory language of this wise and beneficent provision precludes this court from reversing judgments of conviction for errors, defects, or irregularities deemed inconsequential, in the absence of reasonable clear indications that the plaintiff in error was prejudiced thereby, in that otherwise the verdict might with reasonable probabilities have been different. The public policy in the administration of criminal justice, as declared by this and other similar provisions of our Code of Criminal Procedure, has from its organization been fully conformed to by this court, not only as an obligation, but as a pleasure as well, and the •doctrine that, error being made to appear, prejudice will be presumed has never obtained in this court.

In Byers v. Territory, 1 Okla. Cr. 677, 100 P. 261, 103 P. 532, it is said:

“It is the fixed purpose of this court to carry out the spirit of this statute; and, when a defendant has been properly charged with an offense, and fairly tried, and the evidence clearly establishes his guilt, this court will not reverse the conviction upon any technicality or exception which did not deprive the defendant of a substantial right.”

The remaining assignments of error are as destitute of merit as the assignment that the evidence is insufficient to support the verdict.

Finding no error prejudicial to the substantial rights of the defendant, the judgment appealed from is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ISPARCHIE STEPHENS v. STATE.
    No. A-5671.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 326.)
    Carter & Carter, for plaintiff in error.
    The Attorney General and .Fred Hansen, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General has filed a motion to dismiss the appeal in this case, for the reason that the judgment in the trial court was rendered on March 2, 1925, and that, under the laws of the state of Oklahoma and under the extensions of time granted defendant by the trial court, said defendant had 120 days from the date of the rendition of judgment to file his appeal in this court, which time expired on the 30th day of June, 1925, that the appeal was not filed in this court until July 1, 1925, the one hundred and twenty-first day from the date of the rendition of judgment, and that therefore this court has no jurisdiction to entertain this appeal.

An examination of the record shows that the motion of the Attorney General is well taken, and that the appeal should be, and the same is hereby, ordered dismissed.


author: DOYLE, J.

text:
    CLYDE PRINGLE v. STATE.
    No. A-4850.
    Opinion Filed June 25, 1925.
    Rehearing Denied Oct. 30, 1925.
    (239 Pac. 932.)

      Walter Mathews, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Clyde Pringle, was tried and convicted upon an information charging the buying and receiving of stolen property knowing the same to have been stolen; The jury failed to agree upon the penalty, and the court sentenced the defendant to imprisonment in the penitentiary át McAlester for a term of one year, and that he pay a fine of $250, and the costs. From the 'judgment, he appeals.

It is urged strenuously that the evidence is insufficient to sustain the verdict of guilty returned by the jury, and for that reason the judgment rendered thereon should be reversed.

The evidence shows a shipment of Goodyear automobile casings with tubes from St. Louis to Oklahoma City, in a certain car on the M. K. & T. Railway, and that 12. bundles of 6 each were stolen from the car; that Frank Thion-net and Charley Johnson, who lived near Cushing, were arrésted and charged with burglarizing the car; that both pleaded guilty, and were sentenced to serve terms in the penitentiary; that Johnson escaped from the custody of the law before this case was tried; that four of these casings were found in a house occupied by the defendant near Cush-ing; that the defendant told the officers that he bought the casings from a fellow that lived on the hill; that he did not know his name, but would know him if he saw him; after-wards he said that he bought them from a tanky. The officers also found two Ford wheels equipped with casings in the defendant’s house.

Frank Thionnet testified, as a witness for the state, that he and Charley Johnson threw the stolen property •from an M. K. & T. car on a train between Yale and Cush-ing; that when the train reached Cushing, about 2 a. m., they got off and went to the defendant’s place, and he gave them his automobile for the purpose of picking up the stolen property and hauling.it to a hiding place, telling them that he wanted four of the casings; that they got the tires, and hid them in a house near Cushing, and returned the car to the defendant’s place, leaving four casings with tubes in the car; that he did not know how much money they were going to get for them; that they had an arrangement with the defendant about letting him have this character of stuff; that when they burglarized a Santa Fe car, they sold him four Ford wheels and the defendant said he thought he could use anything they could gqt. .

At the close.of the state’s evidence there was a motion by the defendant for a directed verdict, in the form of a demurrer to the evidence,. which was overruled.

On the part of the defense, Claude Pringle, a brother of. the defendant, jointly charged, but who was acquitted, testified that they bought the casings and the Ford wheels found at the defendant’s home from a man in front of the American Cafe, in Cushing, for which he and his brother, the defendant, agreed to pay $48; that the party represented that he was selling automobile supplies for the American Tire and Accessory Company of Oklahoma City.

The defendant, Clyde Pringle testified that he signed the order in front of the American Cafe in Cushing; that he did not know the man’s name, but was satisfied that the man was Frank Thionnet; that he received a carbon copy of the order at the time, and paid him $20 in cash; that about a week afterwards he with his brother was arrested; that he told the officers that he bought them from a tall, slender fellow, who drove a Dodge car; that four or five days later the man delivered the same and he paid him the balance due. He produced what purported to be a carbon copy of the order. On cross-examination .he stated that he had a house rented to Charley Johnson in the west part of Cushing at the time, but did not know Frank Thionnet was living there; that he did not tell the officers that he bought the stuff from a man who lived on the hill; that he told the officers he got the casings from a man who had been a tanky.

There was testimony tending to prove an alibi, and several witnesses testified that they were acquainted with the general reputation of the defendant in the community ■in which he lived as to being a law-abiding citizen, and that his reputation was good.

It is urged that the evidence of Frank Thionnet was insufficient for two reasons; that he was an accomplice and his evidence was uncorroborated. It is the well settled doctrine in this state that a person who steals property, and one who afterwards receives it from him knowing it to have been stolen, are guilty of separate offenses, and without more neither is an accomplice of the other. Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049; White v. State, 23 Okla. Cr. 198, 214 P. 202.

The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted or informed against for the offense for which the defendant is being tried? If he could not, then he is not an accomplice. Mayes v. State, supra.

Under this rule there is no reasonable question as to the sufficiency of the evidence to justify submission to the jury the question of the defendant’s guilt, and there is no such want of preponderance of evidence against the finding of the jury that would warrant this court to set aside the verdict, or to hold that the learned judge of the court below, who heard the evidence and could judge of its credibility better than this court, erred in overruling the motion for a new trial.

Complaint is made that the court erred in admitting the evidence showing the receiving of other property from the same alleged thieves. In Davis v. State, 7 Okla. Cr. 322, 123 P. 560, we said:

“When the defendant’s possession of property recently stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property.”

In State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A (N. S.) 833, it was held, that upon trial for receiving stolen goods, evidence is admissible that accused had previously purchased stolen property from the one from whom he is charged with having received the property in the case on trial. We think the testimony objected to was properly received for the purpose of showing guilty knowledge, and for this purpose it was clearly admissible.

The other assignments of error are based on exceptions to instructions given, and the refusal of the court to give requested instructions. We deem it sufficient to say that the instructions given fully stated the law of the case, and were as favorable to the defendant as the law authorized.

Upon the record before us we are satisfied that the defendant had a fair trial and was properly convicted. The judgment of the lower court is accordingly Affirmed;

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


text:
    KENT GOODNER et al. v. STATE.
    No. A-5195.
    Opinion Filed Oct. 9, 1925.
    Rehearing Denied Oct. 30, 1925.
    (239 Pac. 928.)
    W. L. Coffey, for plaintiffs in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Tulsa county, October 9, 1923, L. C. Hinze, F. E. Williams, Bob Fleanor, Kent Goodner, A. C. Calvert, Clarence ■Smith, and F. J. Schultz did unlawfully convey and transport certain intoxicating liquor, to wit, 25 gallons of corn whisky, from the city hall building in Sand Springs to a place unknown in Tulsa county. Before the case was called for trial, the defendant L. C. Hinze, mayor of Sand Springs, was granted a severance. At the close of the evidence for the state, the defendants interposed a demurrer to the evidence, and each moved for a directed verdict of acquittal, which demurrer was sustained as to the defendants F. E. Williams, chief of police, and Bob Fleanor, assistant chief of police, of Sand Springs, and overruled as to the other defendants.

The trial proceeded, and the jury returned verdicts finding the defendant Kent Goodner guilty, and fixing his punishment at a fine of $250 and imprisonment in the county jail for 3 months; finding the defendant A. C. Calvert guilty, and fixing his punishment at a fine of $50 and imprisonment in the county jail for 30 days; finding the defendant Clarence Smith guilty, and fixing his punishment at a fine of $500 and imprisonment in the county jail for 6 months; and finding the defendant F. J. Schultz guilty, and fixing his punishment at a fine of $500 and imprisonment in the county jail for 6 months. Motions for new trial were overruled. From the judgments rendered in accordance with the verdicts on March 6, 1924, the defendants appealed.

The errors assigned question the sufficiency of the evidence to sustain a conviction, and that the court erred in admitting incompetent evidence and in overruling the motions for a new trial.

The undisputed facts are that on the night of October 9, 1923, about 11:30, Charles Crawford, a Sand Springs traffic officer, found a Ford car, about four blocks from the city hall in said city, in which he found a 15-gallon keg and two 5-gallon water bottles, all apparently full of whisky. The car was taken to the city hall and padlocked. The keg and water bottles were removed from the car and taken into the city hall, and deposited in a vault; within an hour the keg and bottles were removed from the vault in the city hall and transported to some place unknown.

Officer Crawford testified that the Ford car had been abandoned by two men that he did not recognize; that he called the city hall for officers, and Williams, Fleanor, and Goodner came after the car and took it to the city hall; that, after the keg and bottles were carried into the city hall, he had nothing further to do with the car or the whisky; that he saw L. C. Hinze, mayor of Sand Springs, there at the city hall, and about 12 o’clock he carried him home in the side car of his motorcycle.

Sam Jeter testified: That he was merchant police and night watch in Sand Springs on the night of October 9th, and saw the automobile with the contents brought to the pity hall, where the car was locked with a chain and ball, at the curb; then a 15-gallon keg and two 5-gallon water bottles were taken therefrom by officers Goodner, Crawford, and Calvert and placed in a vault inside the city hall. That he smelled the contents of the bottles and they contained whisky. That he tasted the contents of the keg and it was whisky. That the defendant Schultz came to him and asked where the mayor lived, and he told him on Fifth street, between Main and Garfield. Schultz said he had to get the car, and he told him the car was under confiscation, and Schultz said: “That’s what I want to see Mayor Hinze about; if I can see him I can get the car.” That Schultz left in a car, and in a very short time came back with the mayor. That the mayor called Officers Goodner and Calvert and told them to turn this whisky over. The mayor then got in the side car of Crawford’s motorcyle and went north. That the defendant Clarence Smith then said to him: “You go on around to Main street. I want to get that whisky, and they are scared as hell of you.” That witness said, “All right,” and started off, but stopped across the street, and there he saw Calvert, who was desk sergeant, unlock the vault. Then Clarence Smith, F. J. Schultz, and Kent Goodner removed the whisky and put it in a Ford roadster. Then Smith drove south with the whisky, and Schultz followed him in the Ford car that had been locked with the ball and chain. That later he saw Smith driving the same Ford car around Sand Springs.

L. J. Lampkins testified that about midnight that night the defendant Schultz came into Stanton’s restaurant and asked him where the mayor lived, and he directed him to where he could find him.

Clyde D. Damf testified that he was at work that night in the office across from the council room, and Officer Crawford came to the door and said: “Mr. Damf, come and see what a haul I made.” And he went into the council room, where the vault was, and they were putting some bottles that contained whisky and a keg in the vault. Then he went to the Stanton lunch, and returned within an hour. That when he came back some one was carrying a glass bottle around the corner of the city hall, but could not say who it was.

As a witness in his behalf, A. C. Calvert testified that he was fire chief and truck driver, and was also acting as desk sergeant at the time under instruction of the city commissioners ; that Traffic Officer Crawford, Bob Fleanor, and Kent Goodner brought to the city hall the 15-gallon keg and 2-gallon glass jugs, all supposed to contain liquor, and they placed it in the vault; then he closed the door and locked it; that he had nothing whatsoever to do with the taking, if it was removed from the vault; that on the following morning the vessels were gone.

As a witness in his own behalf, Kent Goodner testified that he was police officer; that, after he had assisted in carrying the vessels into the commission room, he never saw them any more.

The defendant Clarence Smith testified that he was running a rooming house in Sand Springs, and was owner of two Ford roadsters and a Nash; that neither of the cars in front of the city hall that evening was his; that the defendant Schultz lived at his place; that he saw Mayor Hinze standing in front of the city hall that night, but did not speak to him, but in walking around there did speak to Sam Jeter; that he did not handle any whisky that night, and did not know anything about any whisky, only what he heard.

As a witness in his own behalf, F. J. Schultz testified that when in Sand Springs he lives with his brother-in-law, Clarence Smith; that he came from Tulsa to Sand Springs that night about 11:30, and, passing Sam Jeter near the post office, he spoke to him, and then went on; that he did not ask him where Mayor Hinze lived and did not know anything about any liquor having been seized that night; that he had nothing to do with transporting any liquor on that occasion.

Fred Gantz, a witness for the defense, testified to a conversation occurring with the witness Jeter somewhat contradictory of the testimony given on the trial.

It is obvious that the case was one for the consideration of the jury, and we are unable, after a careful examination, to find anything in the record sufficient to create a reasonable doubt as to the correctness of the result.

It is urged that all the testimony as to Mayor Hinze, and as to his being about the city hall, was incompetent and highly prejudicial to the rights of these defendants, in that Mayor Hinze was not upon trial at that time, and that all testimony relative to Mayor Hinze should have been excluded. It is a well-settled rule that statements made by a defendant, so closely with the commission of the offense charged as to be considered a part of the res geste, are admissible. Under this rule the objections made were properly overruled.

The other assignments of error are not argued in the brief, nor sustained by the record, and need not therefore be noticed. Upon a consideration of the whole record, we are satisfied that the defendants had a fair and impartial trial, and under the facts and the law we cannot say that the punishment imposed was excessive.

The judgments appealed from herein are accordingly affirmed.

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


author: EDWARDS, J.

text:
    DEWEY EALUM et al. v. STATE.
    No. A-4668.
    Opinion Filed May 23, 1925.
    Rehearing Denied Oct. 30, 1925.
    (239 Pac. 933.)
    Jordan & Burke, for plaintiffs in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error will be referred to as defendants, as in the court below. The defendants were convicted in the district court of Choctaw county on a charge of burglary in the second degree, and sentenced to a term of two years in the penitentiary, and appeal.

The information charges the commission of the offense on or about the 20th day of June, 1922, and the proof was of that date. In the briefs, both for the defendants and the state, it is contended that the offense, if committed, was on that date and no other. The defense was an alibi; each of the defendants separately offered evidence that he was at a different place at the time when the evidence on the part of the state showed the commission of the offense. The evidence was sharply conflicting, but its weight and credibility was for the j ury.

The trial judge instructed the jury that the exact time when the offense was alleged to have been committed was immaterial, and that the proof of the commission at any time within three years prior to the date of the filing of the preliminary complaint would be sufficient as to the time. The trial judge further gave separate instructions covering the defense of alibi to the effect that evidence had been offered by each of the defendants tending to show that they were at a different place at the time of the commission of the alleged offense, and that they should consider all the evidence on that point along with all the facts and circumstances as to the whereabouts of the defendants, at the time, and, if they entertained a reasonable doubt of the guilt of the defendants, they should acquit. There was no evidence of' any other burglary or any other date fixed than the 20th day of June, although the owner of the building charged to have been burglarized testified he had lost goods or merchandise before.

It is here argued the giving of the instruction that the exact time of the commission of the offense was not material in this case, the defense being an alibi, is prejudicial error. In support of this contention defendants cite the following cases: State v. King, 50 Wash. 312, 97 P. 247, 16 Ann. Cas. 322; State v. Coss, 53 Or. 462, 101 P. 193; State v. Moss, 73 Wash. 430, 131 P. 1132; State v. Clark, 27 Idaho, 48, 146 P. 1107; People v. Williams, 133 Cal. 165, 65 P. 323.

The Coss Case, supra, is a case wherein rape is charged,, and several acts appear in the testimony. The Moss case, supra, is a charge of adultery, and four separate and distinct acts appear in the evidence. The Clarlc case, supra, is an incest case, and more than one act appears in the evidence. The Williams case, supra, is an adultery case, and numerous acts appear in the evidence.

In all these cases it was proper to offer evidence of other acts, as it would be under our practice, in order to show the relation, inclination, and intent of the parties. But to warrant a conviction it would be necessary to rely upon one specific act, and it would be further necessary that the jury be limited to one act. Therefore an instruction that the time of the commission of the offense is immaterial, would permit a part of the jury to convict on proof ofi one act and part on another. The cases just named upon that view are of no particular application to the contention here made. The King Case, supra, is more in point, and we perceive no distinction in principle between the rule announced there and the contention made in this case. There was in that case, however, error upon a different point, in that the court in its instructions to the jury made a disparaging statement of the defense of an alibi, which is given as one of the reasons for a reversal of the case. We agree with the holding in that case that, where the offense, if proven, is upon a certain date, it is erroneous to give the jury the instruction complained of, to the effect that the exact time is immaterial, for the reason that it serves no purpose and has no application. But does it result in prejudice to the defendants where the time proven is fixed and definite and the evidence of the state refers to but one date, and the alibi offered is also direct and positive, fixing one and the same date? What confusion can arise by reason of this instruction? It is based on section 2559, C. S. 1921, and is properly given in any case where a single offense is proven and where any confusion of dates as to the time of its commission may arise from the evidence. Where no confusion of dates arises, it is not proper to give it, but we fail to see how it was prejudicial. See Star v. State, 9 Okla. Cr. 210, 131 P. 542; Ostendorf v. State, 8 Okla. Cr. 360, 128 P. 143; Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132.

It is not such error as requires a reversal.

The case is affirmed.

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


author: EDWAEDS, J.

text:
    J. L. WHITWORTH v. STATE.
    No. A-4817.
    Opinion Filed June 13, 1925.
    Rehearing Denied Oct. 30, 1925.
    (239 Pac. 930.)

      W. L. Boner and J. A. Shirley, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Ass’t Atty. Gen., for the State.
   EDWAEDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. He was convicted upon an information charging him with statutory rape upon The person of one Oletha Jackson, a female under the age of 16 years, and his punishment fixed at confinement in the state penitentiary for a term of one year.

Two assignments of error are argued in the brief. First, that the court permitted the testimony of the witness Mrs. Birdie Jackson, without her name having been indorsed on the information; second, error in the instructions.

Upon the first assignment the contention made is not suggested in the motion for a new trial, nor in the petition in error. In the brief for the state it is called to~'the attention of the court that the error relied on is interlined in longhand. We do not assume that there has been any change in the record, but suggest as a matter of good practice that, where interlineations are made, they should be shown by some stipulation between counsel for the state and the defendant, or mentioned in the certificate of the trial judge.

An examination of the record discloses that two witnesses were called whose names do not appear on the information appearing in the record; one of these witnesses being a physician who testified first. No objection was made to his testimony. Objection was made, as stated, to the evidence of Mrs. Birdie Jackson, which was overruled.

The prosecutrix had testified as to her age, giving the day and year of her birth, which was sufficient proof on that point. This testimony was corroborated by the wit.ness last named, and her testimony is merely cumulative. The use of witnesses in misdemeanor.cases whose names have not been indorsed on the information has been held reversible error, though in felony cases the rule is different. Hawkins v. State, 6 Okla. Cr. 308, 116 P. 607; Steen v. State, 4 Okla. Cr. 309, 111 P. 1097; Clark v. State, 5 Okla. Cr. 189, 113 P. 992.

The indorsement of the names of additional witnesses where they have been omitted by oversight may be indorsed at any time in the discretion of the court, where no substantial prejudice to the defendant results.

In the instant case it was not suggested to the court that the defendant was not prepared to meet the testimony of the witness Birdie Jackson, and no request for any delay or continuance was made. It is, of course, self-evident that the defendant expected to meet the question of the age of the prosecutrix, since that was a material allegation in the information, a matter necessary to be proven by the state in order to fix the grade of the offense charged. The evidence of the witness being merely cumulative on the matter of the age, the error in permitting the testimony without her name being indorsed is harmless. Hawkins v. State, supra; Havill v. U. S., 5 Okla. Cr. 334, 115 P. 119; Vance v. Ter., 3 Okla. Cr. 208, 105 P. 307; Stockton v. State, 5 Okla. Cr. 310, 114 P. 626; Ghormley v. State, 11 Okla. Cr. 532, 148 P. 1057; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102; Grayson v. State, 12 Okla. Cr. 226, 154 P. 334.

The other error argued in the brief is predicated upon the' charge of the court upon good character in which the jury are informed what weight and consideration should be given to evidence of good character, and, if after such consideration the evidence “shows the defendant to be guilty,” then his previous good character would not justify, excuse, alleviate, or mitigate the offense. Complaint is .made to the concluding part of this charge as an instruction that it does not require that his guilt be proven beyond a reasonable doubt. The instruction is badly drawn, and, standing alone, would be highly erroneous, but since in several parts of the court’s charge the jury are told that the guilt of the defendant must be proven beyond a reasonable doubt, and are told what facts they must find beyond a reasonable doubt before they can return a verdict against the defendant, the instructions as a whole clearly inform the jury that every fact necessary to convict must be proven beyond a reasonable doubt. In the particular charge, complained of, the purpose of the instruction was to inform the jury the purpose and materiality of evidence of good character. Considering the instructions as a whole, there is'no such error shown as requires a reversal. Killough v. State, 6 Okla. Cr. 312, 118 P. 620; Cannon v. Ter., 1 Okla. Cr. 600, 99 P. 622.

The evidence conclusively proves the defendant guilty. His explanation was unbelievable; the punishment imposed the minimum; the errors complained of not so fundamental to be substantially prejudicial.

The case is affirmed.

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


text:
    R. WIESE et al. v. STATE.
    No. A-5265.

      Opinion Filed Nov. 2, 1925.
    (240 Pac. 1075.)

      Albert C. Morrison and A. L. Morrison, for plaintiffs in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Canadian county, on the 19th day of April, 1924, the defendants R. Wiese and Emil Wiese did have in their possession about six gallons of corn whisky with intent to sell the same. On their trial the jury returned verdicts finding them guilty as charged in the information fixing the punishment-of R. Wiese at a fine of $500 and confinement in the county jail for 6 months, and the punishment of Emil Wiese at a fine of $225 and confinement in the county jail for 60 days. To reverse the judgments rendered on the verdicts they appeal.

The evidence shows that on the date alleged under authority of a search warrant officers visited the defendants’ home seven or eight miles southwest of El Reno and searched the premises.

A. W. Culp, deputy sheriff, testified:

“We found several holes in the orchard on the.place and out in the pasture. 30 yards in front of the house we found buried by the side of the road a half gallon jar of corn whisky. We found a five gallon jar of whisky over the fence in the canyon, 3 feet off the defendants’ land. We also found two empty barrels in a shed at the barn that had been used for mash.”

That prior to this time he had been out to the farm of Mr. Wiese and searched it three or four times.

The articles seized were offered in evidence. This evidence was all admitted against defendants’ objections, on the ground that the same was obtained by an unlawful search and seizure, and in support of the objection the affidavit upon which the search warrant issued, and a copy of the search warrant, upon which all the evidence offered by the state was obtained, was offered in evidence.

“At the close of the case for the state defendants’ counsel moved the court to direct or advise the jury to return a verdict of not guilty on the ground that all the evidence was incompetent, and that, if admissible, it was insufficient to connect the defendants with the alleged offense. Which motion was overruled.

Rudolf Wiese testified that he was at his home when the officers came there, and they gave him a copy of a search warrant; that he knew nothing about the five-gallon jar of whisky which they found buried on the land adjoining his farm, about 60 rods east of his house; that the barrels which they found in the shed on his place had been used to make slop for his hogs; that he had never handled whisky in his life, and knew nothing about the whisky found by the officers.

On cross-examination he testified that he had lived in Canadian county 14 years, coming there from Minnesota, where he had lived 12 or 13 years.

Against defendants’ objections he was further cross-examined as follows:

“Q. Where did you come from to Minnesota? A. Came from Germany.
“Q. How long have you been a citizen of the United States? A. I filed my papers about 3 weeks ago; 3 or 4 weeks ago.
“Q. Just answer the question. How long have you been a citizen of the United States?

Emil Wiese, 18 year old son of the other defendant, testified that he lived with his parents, and that he knew nothing about the whisky found by the officers.

One of the grounds of the motion for a new trial and assigned as error is that the court erred in permitting the county attorney on cross-examination of the defendant to show that he was a foreigner and had lived in the country for about 25 years before becoming naturalized, and misconduct of the county attorney in arguing to the jury that the defendant Rudolf Wiese was a foreigner. That the cross-examination of the defendant was improper is not open to question, and was obviously for the purpose of prejudicing the minds of the jury against the defendants.

The rule is well established in this jurisdiction that incompetent, irrelevant, and immaterial evidence which tends to excite the passions, arouse the prejudices, or to warp or influence the judgment of jurors in any degree cannot be considered as harmless. Allen v. State, 10 Okla. Cr. 55, 134 P. 91.

In Logi v. State, 271 S. W. 451, the Supreme Court of Arkansas held that “district attorney’s argument, in prosecution for manufacturing liquor, that accused was a foreigner, and had lived in county 22 years without becoming naturalized,” was prejudicial error. It is the argument of counsel for defendants that the insufficiency of the affidavit upon which the search warrant was issued, and the invalidity of the search warrant upon which all the evidence offered by the state was obtained, makes the same incompetent.

The affidavit upon which the search warrant was based recites that Mr. W. C. King had informed affiant that there was a cave upon Sec. 7, Tp. 11, R. 7, used for the purpose of manufacturing intoxicating liquors, “and for additional reason that affiant (C. A. Pearce) has searched the premises at a prior date and found evidence of violation of the prohibitory law of the state.” The command of the search warrant was “to search all Bldgs., out Bldgs., appurtenances and land situated on Sec. 7 Twnshp. 11 Range 7, Canadian County, Okla.”

Both the federal and state Constitution guarantee to the people security of their persons, houses, and possessions from unreasonable search and seizure. The courts have ever protected the sanctity of the home, and will always guard with zealous care the citizen’s indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; U. S. v. Crossen (D. C.) 264 F. 459.

In U. S. v. Innelli (D. C.) 286 F. 731, it was held:

“Evidence designating the building, to be searched only by street and number is insufficient to furnish the particular description of the place to be searched, required by Act of June 15, 1917, * * * under which a search warrant for liquors unlawfully possessed must be sought by a provision of the Volstead Act, where it appeared that the building so designated was occupied by more than one tenant, so that it was in fact several places.”

In the opinion it is said:

“This motion concerns the law of arrests, searches and seizures. They have been made time out of mind. The power to make them is an absolutely necessary power. Experience, however, has taught us that the power is one open to abuse. The most notable historical instance of it is that of letters de cachet. Our Constitution was framed during the seethings of the French Revolution. The thought was to make lettres de cachet impossible with us. Protective guards have in consequence been thrown around us, to lessen the harassments and violations of individual rights to which we might otherwise be subjected. Such laws are seldom intentionally violated. What usually happens is that, in the zeal to perform one duty, the other is disregarded or remains unknown. This innocence Of motive, however, is no justification. The law, and all laws, must be regarded. This is expected of all good citizens. To the judges it is a special command. Let it not be forgotten that there were prohibitions in the Constitution before the Eighteenth Amendment. Among them are the Fourth and Fifth. If they afford protection to the guilty, this is the price to be paid for the general good. One prohibition is that no one shall be compelled to give evidence against himself. If anything in the possession of the accused is taken from him by unlawful force to be used in evidence against him, it cannot be so used in violation of his rights.”

In Foreman v. State, 8 Okla. Cr. 480, 129 P. 1101, we said:

“The Bill of Rights is something more than a mere* compilation of glittering generalities. Some of, its provisions constitute a formal and public declaration of popular rights and liberties. The guarantee in article 2, par. 30 (38 Williams) that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated, should be respected by all peace officers and law-abiding citizens.” Section 7013' of the Enforcement Act (iComp. Stats. 1921) provides: “ ‘No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding hoüse or place for storage or unless such residence is a place of public resort.’ And the statute is in accordance with the Bill of ^isrhts.”

And see Foster v. State, 27 Okla. Cr. 270, 226 P. 602.

In Gore v. State, 24 Okla. Cr. 394, 218 P. 545, we held:

“A search and seizure forcibly made under color of a void search warrant is an ‘unreasonable search and seizure,’ within the meaning of section 30 of our Bill of Rights.”

And further held that evidence obtained by an unlawful search and seizure and contrary to section 30 of the Bill of Rights was improperly received against the defendant in violation of section 21 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself.

Obviously the search warrant in this case was not issued in accordance with law. The constitutional provision prescribes that—

“No warrant shall issue but upon probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

The affidavit here describes the place to be searched as a certain section of land, and the proof shows that the defendant was the owner of only one quarter of said section. It fails to state the name of the owner, and does not state that his residence is a place of public resort. It also appears that it is based on information and belief.

On the record before us we are convinced that the search and seizure in this case was an unauthorized trespass, and that all the state’s evidence was improperly admitted against the defendants in violation of their constitutional and statutory rights.

The judgments appealed from herein are accordingly reversed, and the cause remanded, with direction to dismiss.

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


text:
    DAN PROCHNEAU v. STATE.
    No. A-5178.
    Opinion Filed Nov. 2, 1925.
    (240 Pac. 1090.)

      Seymour Foose and R. C. Brown, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Blaine county, February 8, 1924, D'an Prochneau “did sell to one B. E. Slagle one pint of whisky.” On the trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at a fine of $75 and confinement for 30 days in the county jail.

The errors relied on, and upon which the defendant asks for a reversal, are as follows; That the court erred in refusing to admit evidence offered by the defendant on the trial of the case; that the prosecuting witness B. E. Slagle was guilty of misconduct, on the trial in the presence of the jury, prejudicial to the rights of the defendant; that the prosecuting attorneys were guilty of misconduct during the trial and in the presence of the jury prejudicial to the rights of the defendant; and that the verdict is not supported by sufficient evidence.

B. E. Slagle testified that his home is in 'Carman, Alfalfa county; that he was employed and commissioned as a deputy sheriff in Blaine county in the month of February, 1924; that his business was catching bootleggers, and in the evening of the 8th day of February, he went into the defendant’s restaurant and bought a pint of liquor from the defendant, for which he paid him $2.50; that his wife was present at the time; that he turned the pint of liquor over to the city marshal. The bottle was introduced in evidence, bearing the label as follows:

“2 — 8—24 Bought from Dan Prochnoor one pint of whisky at his cafe. Delivered to me in the kitchen of his place. B. E. Slagle.”

On cross-examination he stated that the business men of Canton paid him $10 a day and his expenses to come down there. He was then asked: “During that time you furnished whisky to four boys under 21 years of age, didn’t you?” The state objection sustained.

On behalf of the defendant, Mrs. Prochneau testified that B. E. Slagle came into their restaurant about supper time and asked her husband if he knew where he could get anything to drink, and her husband said, “No”; that she remained in the restaurant that evening until about 11 o’clock, and Slagle came back again in about half an hour with a man called Dipper, and her husband sold him two cigars; that Slagle acted like he was drunk. As he went out he staggered and could not walk straight.

As a witness in his own behalf, the defendant testified that B. E. Slagle came into his restaurant in Canton about 6 o’clock in the evening and asked him if he could get him some whisky, and he told him no, and Slagle said: T‘I have been out to the Indian Camp, and we had a quart when we started out there, but we drank it up, and I would like to get some more,” and he told him he could not get him any, and Slagle started off saying: “I am pretty well liquored up, and I want to go: back out there.” In about 30 minutes he returned with a fellow called “Dipper,” whose name is Morrel, and he bought two ten cent cigars, paid for the same, and then went out.

Boyd Bates testified that he had lived in and near Canton all his life; Saw B. F. Slagle about 7 o’clock in the evening and he was drunk. He was then asked:

“Q. Did you see him drink any intoxicating liquor that afternoon? A. Yes, sir.
“County Attorney: Object,
“The Court: Sustained. Answer stricken from consideration of the jury.
“Mr. Foose: I have this witness and several others, and I want to offer this testimony formally, then in detail.
“The Court: The jury will retire.
“Mr. Foose: We now offer to prove by this witness that about 2 or 3 o’clock, February 8th, B. E. Slagle, this witness, George Hollander, and George Phipps were in the back room of the real estate office of Myers & Schmidt, and said B. E. Slagle produced a bottle of whisky; that Earl Hunt, a minor, of the age of 18 years, entered the room and said to B. E. Slagle that he had only SO cents, but that he wanted a drink, and Slagle handed the bottle to Ralph Hunt; that George Hollander protested that boys were not allowed to drink whisky; that Ralph Hunt took a drink of whisky out of the bottle and paid Slagle 30 cents for it; that immediately afterwards George Phipps took a drink and paid Slagle 50 cents for it; and that Boyd Bates, tñe witness on the stand, took a drink of the same whisky and paid Slagle 50- cents for it; and that George Hollander took a drink but did not pay and handed the bottle back to Slagle, and he put it in his pocket. We offer to further prove that B. E. Slagle was intoxicated at this time.
“The County Attorney: The state objects to the offer.
“The Court: Sustained. Exception allowed.
“Counsel for defense further offers to prove by the witnesses Ralph and George Hollander the facts as stated:
“The Court: Objection sustained.
“The jury returned into court.
“During the trial counsel for the defense stated to the court that B. E. Slagle, sitting outside the railing from xhe jury, and during the examination of the witnesses, habitually expressed his disapproval of their testimony by staring at them in an intensely angry manner, and in an undertone has called witnesses liars in the hearing of the jury.
“The Court: I haven’t heard or seen that.
“Counsel for the Defense: We now offer to introduce testimony to prove that yesterday evening, when he was on the witness stand and I was addressing the court, he called me a ‘damn liar.’ If it is in the record, I want to assign that as prejudicial error.
“The Court: Well, I don’t care to go into that at this time'.”

George Stevens testified that he lives in Carman, Alfalfa county, and knows B. E. Slagle, and knows his general reputation in that community for truth and veracity, and that it is bad. On cross-examination he stated that his brother married Slagle’s sister.

Henry Cooper testified that he lives at Thomas, 74 years old, a Civil War Veteran, and has known B. E. Slagle 16 or 17 years, and knows his reputation for truth and veracity in the community in which he resides, and it is bad.

James Palmer testified that he knows the reputation of B. E Slagle for truth and veracity, and it is not very good.

In rebuttal, Dr. Henry Huston testified that he was a practicing physician at Watonga, and knows the general reputation of B. E. Slagle for truth and veracity, and that it was good.

Mrs. Henry Huston testified that she knows B. E. Sla-gle’s reputation for truthfulness and veracity, and it is good.

The court erred, we think, in sustaining the state’s objections to the testimony offered, showing or tending to show that prosecuting witness had in his possession a bottle of whisky, and that he had been drinking all that afternoon before the time he claims to have purchased whisky from the defendant.

The rule is universal that the parties in the trial of a cause are at liberty to impeach the testimony of a witness by showing that he was intoxicated at the time of the events about which he testifies.

In Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706, it is said:

“We think the rule in any case should be, where a witness is produced and undertakes to give a statement of the facts coming under his observation, transactions to which he is a party and on which the guilt of a citizen is sought to be established, that with a view of testing the credibility of the witness, his opportunity for observation, the state of his memory, the condition of his mind and all that, that it should and would be proper to interrogate the witness as fully as might be necessary in respect to his condition of drunkenness or sobriety.”

In Morris v. State (Ala.) 39 So. 611, it is said that the right thus to impeach a witness’ testimony by cross-examination rests upon the principle that “it is always competent, on cross-examination, to elicit from the witness ‘all facts tending to show his means of obtaining a correct and accurate knowledge of the facts to which he bears testimony, the manner in which he has used these means, his powers of discernment, memory, and description.’ ”

In State v. Rollins, 113 N. C. 732, 18 S. E. 398, it appeared that a witness for the state, in testifying as to the particulars of a crime committed in his presence, stated that he was not drunk at the time, whereupon evidence to the effect that he was drunk was offered, but rejected by the trial judge. The appellate court, holding that the evidence was admissible, said:

“Had this been pertinent only to impeach his character, his answer would have been conclusive. * * * But it went rather to his capacity to know and remember with accuracy what took place. It was error, therefore, to ex-elude proof offered to show that he was ‘very drunk on that occasion.’ ”

And see Willis v. State, 43 Neb. 109, 61 N. W. 254.

In support of the motion for new trial, the affidavits of three witnesses as to the misconduct on the part of the prosecuting witness was undisputed, and the record shows that while the prosecuting witness was on the stand, counsel for the defendant addressing the court said, “We can prove that he was drunk.” This witness said: “You are a liar; you can’t do no such thing.” It is impossible to say “that the defendant was not prejudiced by such misconduct oh the part of the prosecuting witness.

The only evidence in the case against the defendant was the uncorroborated testimony of B. E. Slagle. He states that he was commissioned as a deputy sheriff of Blaine county, although a resident of Alfalfa county, and that he was employed for the purpose of securing evidence upon which to base prosecutions for violations of the prohibitory law. This witness was flatly contradicted by the defendant and two other witnesses, in addition he was successfully impeached by three or four other witnesses, and as shown by the record he was guilty of gross misconduct on the trial.

All good citizens have an interest in the vindication of public justice and maintaining the majesty of the law. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a private detective is not overscrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.

While the cases are rare in which this court interferes to disturb the judgment of the trial court, and it is only in a ease where the verdict is clearly contrary to the evidence, or when from the doubtful character of the evidence against the defendant the preponderance in his favor is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it. In this case, we think that the evidence, unless we are to discredit entirely the testimony of unimpeached witnesses, falls within the rule laid down by these cases.

For the reasons stated, the judgment of the lower court is reversed, with direction to dismiss.

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


text:
    Ex parte WILL GRANT.
    No. A-5433.
    Opinion Filed Nov. 4, 1925.
    (240 Pac. 759.)

      C. R. Reeves and M. C. Reddington, for petitioner.
    George F. Short, Atty. Gen., G. B. Fulton, Asst. Atty. Gen., and J. K. Wright, Co. Atty., of Oklahoma City, for the State.
   DOYLE, J.

The petition for writ of habeas corpus, with a duly unauthenticated transcript of the record attached, shows that on February 14, 1923, an information was filed in the district court of Oklahoma county charging that the petitioner, Will Grant, in said county, on February 5, 1923, committed a crime which is designated in the information as robbery in the first degree. That on the trial the jury returned the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the indictment, and assess his punishment in the state penitentiary for 40 years.
“Carl Meeker, Foreman.”

On this verdict the petitioner was sentenced by the court, Hal Johnson, Judge, to imprisonment in the penitentiary for 40 years for the crime of burglary in the first degree.

Omitting formal parts, the judgment is as follows:

“It is therefore hereby considered, ordered, adjudged and decreed by the court that the said Will Grant be conducted from the bar of the said court to the jail of said county, and from thence to the penitentiary of the state of Oklahoma, and that he be committed to, and imprisoned in the state penitentiary at McAlester, in the state of Oklahoma, and confined in said penitentiary for the term of 40 years for said offense of burglary in 1st degree, said term of sentence to begin at and from date of delivery to warden of penitentiary, and that said defendant pay the costs of this prosecution, taxed at $-, for which judgment is hereby rendered against the said defendant.”

That upon the commitment issued on said judgment he was delivered to the warden, as shown by thé following return:

“Oklahoma State Penitentiary, McAlester, March 18, 192?, Received of Tom Cavnar, sheriff of Oklahoma county, Will Grant, a prisoner sentenced to a term of 40 years for the crime of burglary in the first degree. J. H. Townsend, Warden; A. J. Jedlicka, Deputy Warden.”

That the petitioner is now held in custody to serve said sentence of 40 years for burglary in the first degree, without due process of law, in that said judgment and sentence is void, for the reason that said information does not charge the crime of robbery or burglary, and the petitioner never had a preliminary hearing or waived the same to the charge of burglary. That said verdict does not find him guilty of burglary in the first degree, and is void for uncertainty. That for the reasons stated said district court was without jurisdiction to render said judgment and sentence, and praying that a writ of habeas corpus issue to W. S. Key, warden, to the end that petitioner may be released from such imprisonment.

The office of the writ of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.

Section 1784, C. S. 1921, our Penal Code, defines robbery as follows:

“Robbery is a wrongful taking of a personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Section 1785, Id., provides:

“To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”

The information in this case does not contain the essential allegations that the alleged stolen property was taken from the possession of another or from his person or immediate presence and against his will, and at most it charges larceny. The fact that the information designated the offense as robbery in the first degree is immaterial, as the offense charged depends upon the facts alleged. The record shows that the petitioner was tried for robbery, but was sentenced for burglary in the first degree. The decisive question presented is, Did the court have jurisdiction to render the judgment and sentence by which the petitioner is imprisoned?

It would seem to be beyond controversy that there is nothing to support a finding of the court that the petitioner was guilty of burglary in the first degree. He was not tried upon that charge, either by the court or the jury, and his plea of not guilty was entered to the charge of robbery as set forth in the information.

In Ex parte Dela, 25 Nev. 346, 60 P. 217, 83 Am. St. Rep. 603, it appeared that the petitioner was indicted for the crime of murder, alleged to have been committed in the perpetration of the crime of rape. By the verdict of the jury he was convicted of the crime of rape, and the court sentenced him to 20 years’ imprisonment. He was discharged upon habeas corpus, and the Supreme Court in concluding their opinion say:

“Believing the judgment of this case to be void because the court had no jurisdiction of the subject-matter, that is, of the crime for which he was convicted, for the reason that the defendant was neither indicted nor tried for the crime of rape, and that the execution of the judgment deprives the petitioner of his liberty without due process of law, the commitment issued on said judgment does not justify his further detention, and he will accordingly be discharged.”

In Ex parte Lange, 18 Wall. 176, 21 L. Ed. 872, Mr. Justice Miller in discussing this subject says:

“It was error, but it was error because the power to render any further judgment did not exist. It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such a case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, should render a judgment that he)be hung, it would simply be void. Why void? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death, or confiscation of property, for the same reason, be void.”

In re McVey, 50 Neb. 481, 70 N. W. 51, it was held:

“Jurisdiction to pronounce a particular sentence imposed is as essential as jurisdiction of the person and subject-matter. If the first does not exist, the sentence is void.”

In the opinion it is said:

“A man may not be informed against for one crime, and convicted of another and different one. He is entitled to know the nature and cause of the accusation (see section 11, Bill of Rights), so that he may be enabled to prepare and make his defense, if any he has.”

In Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238, it was held that the judgment of conviction was void, as it was for a crime different than that charged in the information.

Upon the record before us, and for the reasons stated, we are of the opinion that the trial court was without jurisdiction to render the judgment and sentence upon which the commitment issued, and that the execution of said void judgment deprives the petitioner of his liberty without due process of law.

The petitioner is therefore by the judgment of this court discharged therefrom.

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


text:
    JOHN O’BANION v. STATE.
    No. A-5175.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 1117.)

      H. 0. Glasscock, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The appellant, here referred to as the defendant, was by verdict of a jury found guilty of the illegal sale of 10 grains of morphine. The court fixed his punishment at confinement in the penitentiary for a term of 2 years. No briefs have been filed in support of this appeal, although the time for filing briefs is long since past, and although the defendant and his counsel have been given opportunity to brief out of time. Under the rules of this court, the cause having been submitted on the record, the record has been examined. We find that the information sufficiently states the offense of illegally disposing of narcotic drugs, that there is ample evidence to support the verdict, that the instructions of the court were fair to the accused and correctly stated the law of the case, and that from the whole record it appears that the defendant was accorded a fair trial. The judgment of the trial court is therefore affirmed.


author: BESSEY, P. J.

text:
    BUD ARMSTRONG v. STATE.
    No. A-5187.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 1115.)
    W. P. Hickok, for plaintiff in error.
    The Attorney General and Randell S. Cobb, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, defendant below, was convicted of disturbing tbe peace. By verdict of the jury his punishment was fixed at confinement in the county jail for 30 days and to pay a fine of $100. The defendant claims that the information was insufficient, in that it contained no averment that the loud, obscene, vulgar, and threatening language said to have been used was addressed to some particular person or persons. The offending words used, as set out in the information and amply supported by the proof, were obscene and repulsive in the extreme. From the statements contained in the information, it was easy to understand to whom they were alleged to have been addressed, and that the language used was of a nature calculated to arouse the anger of those addressed, and were designed to provoke an assault or breach of the peace, as defined in section 2005, Comp. Stat. 1921. The information also stated an offense under section 2004, Id. This was an aggravated case, not such as would warrant a modification of the judgment. Judgment affirmed.

DOYLE and EDWARDS, JJ., concur.


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    NEAL SEBERT v. STATE.
    No. A-5193.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 1093.)

      L. C. McLean, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, defendant in the trial court, was convicted of the unlawful sale of one pint of whisky, with his punishment fixed at 30 days in jail and a fine of $50.

Where the only witness for the state is a hired detective, employed to entrap the accused and others, who after previous failures to purchase whisky from the defendant in the presence of witnesses claims that he purchased a pint of whisky from the defendant in his place of business while there alone with him, and not in the presence of any other witness, and where it appears that the detective had no definite recollection of the time of day of such purchase, as shown by his own testimony, “I don’t remember the time of day; I guess it was about the middle of the afternoon,” the. accused, under such circumstances, has a right to show on cross-examination, if he can, that the detective had been ■ drinking to excess that day, both before and after the time so fixed, for the purpose of showing whether the recollection of the witness is clear, and generally to test the credibility of his testimony as a whole.

The conduct of an accusing witness which has a tendency to explain or throw light upon the transaction about which he is testifying is admissible in evidence, and such conduct is not necessarily confined to the res gestae. For a full discussion of this subject and the authorities thereon, see the case of Prochneau v. State, 32 Okla. 210, 240 P. 1090.

The testimony on the part of the state is of doubtful probative force. The defendant denied the transaction. He also testified that he had never been convicted of a violation of the prohibitory law, and in this he was not impeached. Defendant also introduced evidence tending to impeach the truthfulness and good faith of this detective. Under such , circumstances, it was error for the court to exclude testimony of the character mentioned.

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

DOYLE and EDWARDS, JJ., concur.


text:
    ARIS MULLIKIN v. STATE.
    No. A-5194.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 1099.)
    L. C. McLean, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error, defendant below, was convicted of the sale of a pint of whisky, with his punishment assessed by jury at confinement in the county jail for 60 days and a fine of $100.

The defendant was a taxi driver in the city of Enid. The two principal witnesses for the state were detectives, employed to entrap certain suspected offenders against the prohibitory law, including this defendant. The prosecuting witness admitted that he was employed for this purpose at the rate of $10 per day and expenses, and furnished money to buy whisky from the persons whose names were furnished him. On this particular day a helper was employed and paid $4 for the day. Under this arrangement the prosecuting witness worked eight days and the helper this one day.

Concerning the crucial part of the transaction, the main detective testified as follows:

“A. I was in there, Wilson and I was in there eating dinner, and I asked the waiter for Mr. Mullikin. He was over on the other side of the counter. After we got through eating dinner he came over, and I introduced myself to him, and introduced him to Wilson also, and I asked him for a pint of whisky, and he said, 'All right’; for us to go in the toilet of the Grand Avenue Hotel, and he would be in in a few minutes. In just a few minutes he came in with the whisky, and pulled it out of his right hip pocket, and handed it to me, and I paid him $8 for it.”
“Q. Who was in the toilet of the Grand Avenue Hotel ? A. Just Wilson and I and Mr. Mullikin.”

To the same effect was the testimony of the helper. The defendant denied the transaction in toto.

Ordinarily, it is not against public policy for officers to set a trap for one who is about to commit an offense. Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727. The interest of the persons so employed may be shown, as in other cases. These two state witnesses admitted that they liad been employed to entrap the defendant and others, and on their cross-examination there was testimony brought out tending to show that they had told sundry persons about their method of entrapment, and that, if they made up their minds to involve any particular person, they could testify that such person had sold them whisky, and there was no way for the accused to controvert their testimony.

In addition to this, the defendant sought to show that at different times within this 9-day period the chief detective was drunk and disorderly, but no evidence was offered tending to show that such was his condition at or about the time the defendant was said to have sold this particular pint of whisky. Proof of specific misdemeanors not connected with the offense being tried cannot be shown to discredit or impeach a witness. Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N. S.) 153; Perales v. State, 14 Okla. Cr. 601, 174 P. 1100. Whether the general reputation of the witness being a drunken snitch could have been shown need not be decided, because no sufficient attempt was made to show this.

The credibility of the admitted hired detectives, like that of other witnesses, was for the jury, the same as in other cases, and the rules as to impeachment are the same.

The defendant complains that the spelling ;of the name of the accused, as written in the original information, was changed during the progress of the trial. This did not operate to the prejudice of the defendant. The true name of the accused was finally ascertained and his identity established, and the fact that the name was spelled differently on the label of the bottle preserved and introduced in evidence is immaterial. Section 2822, Comp. Stat. 1921.

The defendant admitted that he had previously been convicted in the federal court for the illegal transportation of whisky. Under such circumstances the punishment assessed does not seem excessive.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    JACK RAMBO v. STATE.
    No. A-5132.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 751.)
    W. R. Withington, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county on a charge of having possession of intoxicating liquor with intent to sell, the plaintiff in error, hereinafter called defendant, has appealed.

Two assignments of error are argued by defendant: First, that the court admitted incompetent evidence in behalf of the state; second, that the evidence is insufficient to sustain the verdict. The evidence in the record discloses that on the night of June 21, 1923, certain officers found defendant with one Joe Toth west of South Capitol Hill near the Campbell Creek schoolhouse, and near them two camp beds and a six-shooter. There was no house near, and close by was a road in the woods where cars circled and turned. About 100 steps from them in the brush was found 500 pints of beer in a barrel, iced and ready for consumption, which was seized by the officers and analyzed, and found to contain 3% per cent, alcohol, measured by volume. There was a trail leading from where the defendant was to the place where the beer was found. It is further in evidence that on the road back to Oklahoma City the defendant told one of the officers that he was selling the beer for 50 cents per bottle.

The first assignment is directed to evidence of the officers that just a short time before this the defendant had been arrested at the same spot with 300 bottles of beer. It is contended that this is proof of a separate offense and prejudicial. Since this beer was found on a public highway, not near any house, and under the conditions stated, the finding of a large quantity of beer under the same circumstances at the same place but a few days prior to this was admissible as proving intent and scheme or plan of the defendant. Childs v. State. 4 Okla. Cr. 474. 113 P. 545, 33 L. R. A. (N. S.) 563; Bundy v. State, 16 Okla. Cr. 481, 184 P. 795.

The court in his instructions limited the consideration of the finding of beer at a different time to the proving of intent. The admission of the evidence complained of was not error.

The second assignment of error that the evidence is insufficient is untenable. While the evidence is circumstantial, there were ample facts proven, together with the admissions of the defendant, if believed by the jury, to fully sustain the verdict. The jury must have believed from the facts proven that the defendant was making range delivery of beer to automobile parties, and the evidence amply supports such conclusion on their part.

There is no prejudicial error apparent, and the judgment is affirmed.

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


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    HATTIE GEORGE et al. v. STATE.
    No. A-5061.
    Opinion Filed Nov. 5, 1925.
    (240 Pac. 748.)
    W. T. Cleeton, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error were convicted in the county court of Pawnee county on a charge of maintaining a place where intoxicating liquors were sold, and have appealed.

An examination of the record discloses that judgment was rendered on the 21st day of December, 1923. The petition in error and case-made were not filed until May 13, 1924. The record does not show that any extension of time was granted by the trial judge. The minimum length of time in which an appeal can be filed in a misdemeanor case is 60 days, unless the trial court shall by order extend the time, not to exceed 60 days additional. Sec. 2808, Comp. Stat. 1921. The appeal in this case was not perfected in the time required by law, and this court has therefore never acquired jurisdiction.

The appeal is dismissed.

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


text:
    LEE HELMS et al. v. STATE.
    No. A-5199.
    Opinion Filed Nov. 6, 1925.
    (240 Pac. 1083.)
    W. L. Coffey, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Tulsa county, November 24, 1923, Lee Helms and Julius Wilson did have in their possession eight pints of corn whisky with the unlawful intent to sell the same. On their trial the jury returned a verdict finding the defendant Lee Helms guilty, and fixing his punishment at a fine of $500 and confinement in jail for 6 months, and a verdict finding the defendant Julius Wilson guilty, and fixing his punishment at a fine of $250 and confinement in jail for 90 days. From the judgments rendered on the respective verdicts, they appeal, but no brief in support of the assignments of error has been filed. When the case was called for final submission it was submitted on the record.

The evidence for the state, which was undisputed, shows: That under authority of a search warrant, two deputy sheriffs visited the premises occupied by the defendant, a grocery store and cold drink stand on the north side of the Tulsa Sand Springs Highway at Joe Station, where they found and seized eight pints of corn whisky— two pints on the counter among loaves of bread, two pints in a paper sack, and six pints behind the front door, which was opened, pushed back, and fastened against the wall. They also found numerous bottles smelling of whisky, lots of corks. That the defendant Helm said, “You got me this time; I don’t blame you at all.” The bottles of whisky were labeled and introduced in evidence.

There was no testimony offered on the part of the defense.

An examination of the record shows that no law questions are raised, and it appears that the plaintiffs in error have been accorded a fair and impartial trial. The judgments appealed from herein are therefore affirmed.

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


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    WALTER GOSE v. STATE.
    No. A-5243.
    Opinion Filed Nov. 6, 1925.
    (240 Pac. 1082.)
    L. F. Robertson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Woodward county, February 9, 1924, Walter Gose did “sell one quart of whisky to one Bert Tilford.” On the trial the jury returned a verdict finding the defendant guilty and leaving his punishment to the court. March 12, 1924, he was sentenced to pay a fine of $200 and to be confined in the county jail for 50 days. To reverse the judgment he prosecutes this appeal.

Bert Tilford testified that the defendant, Walter Gose, came into his barber shop in Mooreland about 10 o’clock, and asked him if he wanted some liquor, and he asked him if it was right handy, and Gose said that it was just outside of town; “that we will walk out there,” and said, “ ‘Get a bottle and walk to the railroad track,’ and he would meet me;” that he got a bottle, washed it out, went down Main street, and there both went out east of town between a quarter and a half mile, and there he got a quart of liquor from the defendant; that they came back to town and witness went home, and the next Monday he brought the bottle to the shop, and set it down in the back room, and took a drink or two, and that after that three young girls came in and smelt the liquor on his breath when he was shaving their necks, and they asked him where he got the liquor, and he told them in the other room, and they went in the other room where the liquor was and sampled it; that that was the next Friday after the defendant was in the shop; that he was arrested and pleaded guilty to giving the girls liquor.

The defendant as a witness in his own behalf testified:

“I am a farmer; own my farm three miles south and two west of Cedardale; and usually trade with Miller Bros., Mooreland. On the Saturday evening I went into Tilford’s barber shop and got a shave after that I put on my coat and tie, and paid him for the shave, and he asked me if I wanted a drink of liquor; that he was going to close up the shop, and if I would go with him we would get a drink of whisky. He closed up, and I started east, meeting Jack Hill, and he went with us; we went east about half a mile, he got a jug out from under a culvert, and filled two quart bottles of whisky, and set the jug back;” that he just gave them a drink; that they did not buy any from him; that that was the only time he had drank liquor in several years that he remembers.
Jack Hill testified that he lived four or five miles from the defendant, went to town with him and his brother, and met him coming from the barber shop, and asked if he was about ready to go home. “He wanted to know if I would like a drink, and this man Tilford came along, and we went with him, and he got a jug of whisky out from under a railroad culvert, and we all took a drink and went back to town with him.”

On cross-examination he stated that that was the only drink of whisky that he had taken in three or four years.

In rebuttal, the state called three witnesses, and each testified that he knew the general reputation of the witness Bert Tilford for truth and veracity, and that it was good.

The errors assigned are that the verdict is not sustained by the evidence, and that the court erred in admitting incompetent evidence.

It is the duty of a court of last resort to see to it that a person charged with crime is accorded a fair trial. In this case the state relied for a conviction upon the testimony of the witness Tilford, who at the time was serving a sentence in the county jail on a plea of guilty to a charge of misdemeanor, when the admitted facts show that he gave whisky to minors, which the statute (/section 7004, C. S. 1921) condemns as a felony, and to bolster up his testimony the state in rebuttal was permitted to show by several witnesses that his general reputation for truth and veracity was good.

In the case of Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A. L. R. 1212, we held that in a criminal trial the mere fact that a witness’ testimony is contradicted by adverse testimony does not warrant the introduction of evidence as to his reputation for truth and veracity.

In McEwen v. State, 132 Miss. 338, 96 So. 690, it was held that erroneous admission of testimony of the good reputation for truth and veracity of the prosecuting witness, who had not been impeached, constituted reversible error.

Upon the merits of the case we are satisfied that the evidence is insufficient to support the verdict.

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

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


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    C. W. GOBEN v. STATE.
    No. A-4417.
    Opinion Filed Nov. 7, 1925.
    (240 Pac. 1085.)
    Lewis E. Morris and Walter Hubbell, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore and G. B. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error, C. W. Goben, and William Tait, were jointly charged, by information duly filed in the district court 'of Comanche county, April 12, 1921, with the murder of Russell Sprague, alleged to have been committed in said county on the 25th day of March, 1921. Upon their arraignment, the defendant William Tait entered a plea of guilty to the crime of murder as charged in the information. He was thereupon sentenced to suffer death by electrocution (see Opinion of the Judges, 18 Okla. Cr. 598, 197 P. 546), which sentence was May 15, 1923, by Gov. Walton, commuted to imprisonment for life.

On a plea of not guilty to the information, the defendant, C. W. Goben, was tried and found guilty of murder; the jury in their verdict fixing the punishment at death. From the judgment, the defendant appealed, and, by the decision of this court, the judgment of conviction was reversed, and the cause remanded for a new trial. Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

On the defendant’s application, the court granted a change of venue to Cotton county. The defendant was put upon trial which resulted in a mistrial; the jury having failed to agree. On the next trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at death. Motions for new trial and in arrest of judgment were duly filed, presented, and overruled. May 19, 1922, the court pronounced judgment and sentenced the defendant to suffer death by electrocution.

Thereafter, on the 22d day of May, 1922, the defendant filed a supplemental motion to vacate the judgment and grant a new trial on the ground that the juror Ernest Wilson, contrary to' his examination on voir dire, had formed, and on several occasions expressed, his opinion as to the guilt of the defendant, by remarking that he had his mind made up on this case; that the defendant, Goben, ought to be electrocuted the same as Tait; that if he got on the jury he would electrocute him; and other similar remarks— which motion was supported by seven affidavits and by the testimony of several witnesses on the hearing.

The juror Wilson, called by the state, admitted carrying on conversations at each place charged, but denied making such statements, and stated that he only expressed his opinion on capital punishment, saying that, if he was called as a juror, and the evidence was strong enough to stick a man, he would break his neck; that the other persons may have been talking about the Goben case at the time.

The motion was denied.

Counsel for plaintiff in error also complain of the trial court’s refusal to compel jurors on their voir dire examination to state whether or not they were members of the Ku Klux Klan. It appears that the court informed the jurors that they did not have to answer that question unless they wanted to.

The record further shows, after the jury had been selected, and the defendant had exhausted all his peremptory challenges, he made the following motion:

“Comes now the defendant and objects to going to trial before this jury, for the reason that the same is not fair and impartial, and for the reason that during the selection of the jury the defendant has been deprived of some of his rights guaranteed under the law and the Constitution, and respectfully requests the court that he be restored to at least three of his peremptory challenges, for the reason that certain persons called into the jury box refused to answer as to whether or not they belonged to the Knights of the Ku Klux Klan, in that said jurors were instructed by the court that they were not required to answer the question.”

Which motion was by the court overruled.

It is also insisted that the penalty of death is too severe, and should be modified to imprisonment for life at hard labor. After the final submission of the case, there was filed the following stipulation:

“Stipulation.
“Whereas, the plaintiff in error in the above-entitled cause now pending in the Criminal Court of Appeals of the state of Oklahoma, has appealed said cause from the district court of Cotton county, Okla., and on appeal has assigned and urged various and sundry .irregularities and substantial errors which he contends should cause said judgment and sentence of the district court of Cotton county, Okla., to be reversed or at least modified:
“And, whereas, the plaintiff in error has been sentenced to be put to death in said cause;
“And, whereas, the plaintiff in error is willing to waive all alleged errors and irregularities in the trial of said cause on the condition that the judgment and sentence in said cause be modified by the court from that of death to life imprisonment in the State Penitentiary at McAlester, Okla.;
“And, whereas, the defendant in error, in view of the errors assigned, feels that it would be to its best interest and that justice would be done by modifying said judgment and sentence;
“Now, therefore, it is stipulated and agreed by and between C. W. Goben, plaintiff in error, and the state of Oklahoma, defendant in error, that all of the alleged errors and irregularities in the trial of said cause which are being urged by said plaintiff in error on appeal, be, and the same are hereby, waived, and the defendant in error, by and through its duly qualified, elected, and acting Attorney General agrees and consents that the judgment and sentence in this case be modified from that of the death penalty to life imprisonment in the State Penitentiary at Mc-Alester, Okla., and the plaintiff in error hereby agrees and consents that said judgment and sentence be thus modified.
“It is further stipulated and agreed between the parties hereto that this agreement and matters waived herein is subject to the approval of the Criminal Court of Appeals of the state of Oklahoma, and is made upon the condition and understanding that said judgment and sentence will be modified as herein stated, but that, in the event that said judgment and sentence is not modified, then it is expressly understood that the plaintiff in error waives:hone of his rights nor any of the errors and irregularities urged upon his appeal.
“Dated this 7th day of April, 1925.”

We have with much care examined the voluminous record. The fact that the defendant Tait fired the fatal shot is not disputed, but from all the facts in evidence it is evident that the defendants were acting in concert with a common purpose and intent 'in the commission of the crime.

It is a rule of the law that, where the parties act in concert with a common design, they are both alike guilty as principals, and we see no reason to doubt that this conviction was justified by the evidence.

It follows that the sole question presented for the decision of this court is: Should the judgment and sentence be modified to life imprisonment? Our Penal Code provides any person convicted of murder shall suffer death or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Section 1739, C. S. 1921.

Our Code of Criminal Procedure provides that:

“The appellate court may reverse, affirm or modify the judgment appealed from.” Section 2820, C. S.

It was said by this court in the case of Wilson v. State, 17 Okla. Cr. 47, 183 P. 613:

“By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life.”

In Anthony v. State, 12 Okla. Cr. 494, 159 P. 934, we held:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.”

And see Young v. State, 19 Okla. Cr. 363, 200 P. 260; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Fritz v. State, 8 Okla. Cr. 342, 128 P. 170.

Where-statutes authorize the appellate courts to modify the judgments of the trial court in criminal cases, the remedy in cases like this is found, not in a new trial-, but in modifying the judgment by reducing the punishment, and, without the power given under the statute to modify the judgment, this court would be compelled to reverse the case for the errors indicated and remand it for another trial. While we must compliment the attorneys who represent the plaintiff in error for the able manner in which they have presented his defense even to appearing in this court at their own expense and the filing of a strong brief, we also commend the Attorney General in agreeing to the stipulation herein set forth, which meets with our unqualified approval.

For the reasons stated, the judgment of the district court of Cotton county will be modified to the extent that the sentence will be changed from the infliction of the penalty of death to that of imprisonment in the state penitentiary at hard labor for life, and, as thus modified, the judgment is affirmed.

The clerk of this court will furnish the warden of the state penitentiary a certified copy of this opinion.

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


text:
    CHARLES BAILEY v. STATE.
    No. A-5303.
    Opinion Filed Nov. 9, 1925.
    (240 Pac. 1083.)
    D. G. Elliott, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Tulsa county, March 24, 1924, Charles Bailey did have in his possession four gallons.of corn whisky with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty and fixing his punishment at a fine of $100 and confinement in the county jail for 60 days.

The errors assigned are that the court erred in admitting incompetent evidence on the part of the state, and erred in overruling the defendant’s motion for a directed verdict, and in overruling the motion for a new trial.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The evidence shows that the sheriff visited the premises occupied by the defendant in the town of Turley, and there in an outhouse found and seized four gallons of corn whisky in a five-gallon water bottle.

Charles Evans, a druggist in the town of Turley, testified that he saw the defendant and another man unload a carton from a Ford truck and place it in the outhouse, and that the defendant then locked the door.

The defendant, Charles Bailey, as a witness in his own behalf, testified that the outhouse was not on his property, and he did not know anything about the whisky found by the officers therein.

We have carefully considered the assignments of error, and we are convinced that each and all of them are without merit, and we think the evidence of the defendant’s guilt was ample to justify the verdict.

The judgment appealed from herein is accordingly affirmed.

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