text:
    ZETTA SENTELL v. STATE.
    No. A-9160.
    April 16, 1937.
    (67 Pac. [2d] 466.)

      Francis K. Trimble, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Beckham county, on the 20th day of November, 1935, Ike Sentell and Zetta Sentell did unlawfully have the possession of a still fit for the manufacture of intoxicating liquors.

Upon her separate trial the jury returned a verdict finding the defendant Zetta Sentell guilty of “the possession of a still as charged in the information” and fixing her punishment at a fine of $150 and 90 days’ imprisonment in the county jail. She has appealed from the judgment rendered on the verdict.

It appears that the defendant was poor and on account of her poverty was unable to employ an attorney in mating her defense, and counsel was assigned her by the court.

Many errors are assigned upon exceptions taken to the rulings of the court on the trial. The only question that we deem necessary to discuss is the sufficiency of the evidence to sustain the conviction.

K. T. Henson testified that he was under-sheriff and on November 20, 1935, in company with three deputies, went to the farm home of the defendants five or six miles south of Sayre; that Mrs. Zetta Sentell was in bed and appeared to be ill; that he gave her a copy of the search warrant; that after the still was found he asked Mrs. Sentell whose still that was; she told him her husband said he was working for somebody and it might be he owned it himself; that this raid was made in the middle of the afternoon.

Deputy Sheriff Phillips testified that he was one of the officers on the raid and he found this still in operation in a shed about 100 yards from the Sentell home; that Mrs. Sentell was the only person on the premises and he arrested her.

Joe Welch testified that he was one of the officers on the raid; that they found a still in operation, a keg of whisky, and several barrels of mash in a shed on the premises.

When the state rested the defendant interposed a demurrer to the evidence, for the reason the same is insufficient to. connect this defendant with the offense charged in the information and moved the court to dismiss the case as to this defendant.

And for the further reason the evidence shows that Ike Sentell and Zetta Sentell are husband and wife, and where she committed the act charged in the presence of her husband, the law presumes that she committed the act under his direction, and there is no evidence to rebut this presumption, and moved the court to instruct the jury to return a verdict of not guilty.

Demurrer and motion overruled. Exceptions reserved.

Zetta Sentell, as a witness in her own behalf, testified that she was the wife of Ike Sentell; that she and her husband lived together on the premises where the still was found; that her home there was provided for by her husband and she occupied the same at his direction; that she had never been to. the shed in which the still was found and her only information of said still was hearsay; that she had no. interest or part in its operation; that there never was any whisky brought into, the house; that her husband left the house going to1 the shed about 30 minutes before the officers arrived.

At the close of all the evidence the defendant moved for a directed verdict on the ground that the evidence was insufficient to. warrant a conviction, which motion was overruled. Exception.

'The defendant contends that the verdict is contrary to law and the evidence for the following reasons:

“That subjection is inferred from coverture and excuses a wife for crime committed in the presence and with the consent of her husband; that the state failed to. rebut the presumption of innocence created by coverture, and that the state failed to connect this defendant with the actual possession of said still.”

That under the statute, section 1652 (32 Okla. St. Ann. § 2), providing that:

“The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto.”

It was incumbent upon the state to prove independent acts connecting' Zetta Sentell with the possession of said still and more than her mere presence on the premises.

That under Penal Code, § 1802 (21 Okla. St. Ann. § 157), providing that:

“A subjection sufficient to excuse from punishment may be inferred in favor of a wife from the fact of cover-ture whenever she committed the act charged in the presence and with the assent of her husband, except where such act is a participation in:” etc.

Murder, treason, and 16 other named crimes under certain circumstances are made exceptions. Offense created by the prohibition enforcement laws are not excepted. Citing Neff v. State, 29 Okla. Cr. 2, 231 Pac. 898; Ferguson v. State, 29 Okla. Cr. 238, 233 Pac. 497; Sanders v. State, 48 Okla. Cr. 65, 289 Pac. 798; Davis v. State, 53 Okla. Cr. 85, 7 Pac. (2d) 911; Crowdis et ux. v. State, 59 Okla. Cr. 297, 58 Pac. (2d) 154.

The general rule that, as to criminal acts committed in the presence of her husband, a married woman is presumed to have acted under coercion, is, of course, where recognized, applied to cases of liquor-law violation. But in proving the unlawful manufacture, or the possession of liquor, or the maintenance of a liquor nuisance, distinctive questions are presented in reference to inferences arising from the wife’s presence, her failure to object or to take other action, or her assistance rendered in avoiding detection of the crime. In such cases, the rule- generally recognized, even where the presumption of coercion does not obtain, is that the husband as the head of the household is presumptively responsible for conditions there, and that the wife cannot be held accountable therefor in the absence of some evidence of guilt in' addition to the fact of her mere presence in the place of the offense. See 71 A. L. R., annotation, p. 1127.

In Dressier v. State, 194 Ind. 8, 141 N. E. 801, 803, it was, in effect, held that the mere presence of a still in the home of the defendant and husband, under circumstances not inconsistent with the operation thereof merely by the husband, did not amount to- a showing that the wife unlawfully possessed the still. The court said:

“The effect, and only possible effect, of the evidence, was to prove the fact that August Dressier had in his home a still and mash sufficient to produce a little over two pints of whisky. * * * Appellant was the wife of August Dressier. * * * By law, his domicile is her domicile, and if the offense here charged was committed by appellant, the physical facts conclusively show that it was done in his presence. There is no pretext for saying that the liquor found was produced by appellant after her husband had left his home.”

In Tewmy v. Com., 206 Ky. 522, 267 S. W. 1087, it was held that, although there is no presumption of coercion in Kentucky (under the rule of King v. Owensboro, 187 Ky. 21, 218 S. W. 297), a wife is not guilty of unlawfully possessing intoxicating, liquor merely because such liquor is found upon premises occupied by herself and husband; “he of course being, under the proven facts, tbe head of the family as well as the controller of the premises.” The court said: “Even if the wife, under the proven facts, had knowledge of the possession of the liquor by her husband, there might be considerable doubt as to whether she could be convicted without further proof of her joint participation in that possession” since it might not be concluded that under such circumstances “she would be called upon, in order to exculpate herself, to abandon her home, and separate from her husband, and dissolve the bonds of matrimony between them.”

It may be said that marriage does not take from the wife her general capacity to commit crime, but it casts upon her the duty of obedience to her husband, and, in the absence of proof to the contrary, the law indulges a presumption that, where a crime, with some exceptions, was committed by a married woman, conjointly with or in the presence of her husband, prima, facie she was not criminally liable, as it is presumed that she acted in obedience to his commands and under his coercion.

In some jurisdictions the presumption of coercion has been abolished by statute, and married women are made fully liable for their criminal acts, see State v. Renslow, 211 Iowa, 642, 230 N. W. 316, 71 A. L. R. 1111, while in other jurisdictions they have been expressly declared incapable of committing crimes, except felonies, when acting under the threats, command, or coercion of their husbands.

In 13 R. C. L. p. 1238, § 275, it is said:

“According to the better view, where a married woman commits a criminal act in the presence of or jointly with her husband, the presumption of coercion is prima facie only, and she may be held criminally liable if it is shown that she acted of her free will and volition. This presumption is very slight and may be rebutted by slight circumstances. Still practical weight must be given to this presumption, and in the absence of any evidence to rebut it, her conviction cannot be sustained.”

In the instant case a prima facie case of coercion was established when it was shown that the defendant was a married woman, occupying the premises with her husband as their home, and that the criminal act, the unlawful use of the premises, was in the presence of her husband, and there was no evidence offered tending to show that she acted upon her own initiative or that she acted freely and of her own volition, and there was no evidence offered to rebut the presumption that she acted under coercion of her husband.

In this connection it appears that the defendant offered and requested the court to give an instruction on the presumption of law and requiring the jury to find that she was acting independently of her husband’s control in order to find her guilty. This instruction was refused by the court, and the instructions given by the court did not submit the question of whether she was a free agent or acting under the direction of her husband.

It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to' ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.

If the evidence introduced by the state fails to incriminate the defendant, or as a matter1 of law is insufficient to show that the defendant is guilty of the offense charged, it is not only the right but the duty of the trial court to advise tbe jury to return a.verdict of acquittal. Procedure Criminal, section 3090(22 Olda. St. Ann. § 850).

Upon a careful consideration of tbe evidence offered on bebalf of tbe state, we are clearly of opinion that for tbe reasons stated, it wholly fails to show that this defendant was guilty of tbe offense charged, and for this reason the trial court should have sustained tbe defendant’s demurrer thereto: And the trial court should have sustained the motions of the defendant for a directed verdict of acquittal because the evidence was insufficient to warrant a conviction.

Because the verdict is contrary to law and the evidence entirely insufficient to sustain a conviction, the judgment appealed from is reversed, and the cause remanded, with direction to discharge this defendant.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JOE NEWTON v. STATE.
    No. A-9005.
    Jan. 26, 1937.
    (71 Pac. [2d] 122.)

      Baxter Taylor, W. H. C. Taylor, and Edwards & Robinson, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from, a judgment of conviction pronounced and entered by the district court of Garfield county in pursuance of the verdict of a jury finding Joe Newton guilty as charged in the information and he was sentenced to imprisonment in the state penitentiary for a term of 20 years.

Appellant, Joe Newton, and his brother, Willis, were jointly charged in the preliminary complaint with the crime of robbery with firearms, alleged to have been committed in Grant county on the 14th day of April, 1932.

Upon his separate trial Willis Newton was convicted in the district court of Grant county and was sentenced to serve a term of 20 years in the state penitentiary, which conviction was on appeal affirmed by this court. See Newton v. State, 56 Okla. Cr. 391, 40 Pac. (2d) 688.

The information in this case filed March 7, 1935, in the district court of Grant county charges the crime of robbery with firearms. On appellant’s application, the court granted a change of venue to Garfield county.

The evidence shows that on the night of April 13, 1932, the First National Bank of Medford was robbed by two men who entered by prying open a window. The steel safe, 4 inches in thickness, was burned through by an acetylene cutting torch and $4,400 in money taken from the safe, also bonds and travelers’ cheeks. The evidence further discloses that about 1 o’clock that morning Ed Heiland, who was night watchman for the city of Medford, whose duty it was to guard the bank and other business houses, was in a cafe about a block from the bank. The proprietor and another person were present. Heiland bad just ordered a cup of coffee when Willis Newton came in holding a pistol, ordered the three men in the cafe to lie on the floor, face down with their hands stretched forward, he then tied the hands of all and tied them together. He took from Heiland a pistol, and forced them to gO! with him to the bank where he was joined by a masked man, holding a double-barrel shotgun; the prisoners were then held under guard near the bank building. Willis Newton then went to the telephone exchange, disabled it, and took in custody all persons there, forcing them to¡ go with him. By using one of the telephone men as a decoy, he captured under sheriff Hamilton, and took him, with his car, to the bank, then placed seven of these captives in Hamilton’s car. Willis Newton then drove a car equipped with an acetylene torch, tank, hose, and material for steel cutting to the sidewalk alongside the bank and a window was forced open. The other man positively identified by five witnesses as appellant, Joe Newton, then proceeded to hook up the acetylene torch equipment, entered the bank, and cut into the safe. During the operation several persons passing were stopped and taken into custody by Willis Newton who was guarding the prisoners, so that, by the time the operation was completed, about 20 persons were held captive, some of them in their cars. These prisoners included two men driving bread vans and a man driving a milk delivery. One young man was pressed into- service to aid in the work inside the bank and two> others were for a time kept inside the bank. The job was finished shortly after 5 o’clock that morning. The Newtons then entered their car, Joe Newton at the wheel, drove north on Main street. On November 18,1932, Willis Newton and appellant, Joe Newton, were arrested at Chandler. The officers found in their car a double barrel shotgun, three pistols, two' bullet proof vests, an acetylene outfit, with tank, hose, blow torch, and goggles. Appellant, Joe Newton, was delivered to Texas officers. Willis Newton claimed the acetylene outfit, and it with the car was turned over to him by the Chandler officers. Willis Newton was arrested at Tulsa, November 27, 1932. Three alibi witnesses testified that on April 13', 1932, defendant, Joe Newton, was at San Antonio, Tex., and the next morning at Uvalde, Tex. Appellant did not take the witness stand.

The first objection urged is that the information is insufficient to charge the crime of robbery with firearms.

The information was sufficient and for the reasons stated in opinion in the case of Newton v. State, supra, the demurrer thereto' was properly overruled.

Numerous other errors are assigned, most of which relate to rulings of the court upon the admission and exclusion of evidence; others on exceptions taken to' certain instructions, alleged misconduct of the jury, and error in overruling the motion for a new trial. The defense was an alibi.

Complaint is made that the court erred in overruling the defendant’s motion to suppress evidence obtained by the search of the car at Chandler and its admission in evidence was incompetent, prejudicial, and in violation of his constitutional rights, because the officers searching the car had no search warrant.

In the case of Griffin v. State, 57 Okla. Cr. 176, 46 Pac. (2d) 382, 383, this court held:

“The immunity guaranteed by section 30 of the Bill of Rights (Const, art. 2) against unlawful searches and seizures does not extend to the implements of crime, records, papers, or other things found on the person or in the possession of the person lawfully placed under arrest, where such implements, records, papers, or other things have been or manifestly may be used to perpetrate the crime charged.”

In the case of Crossmann v. State, 28 Okla. Cr. 198, 230 Pac. 291, it is said:

“A peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact been committed, and the officer has reasonable grounds to' believe that the person arrested was the perpetrator.”

A peace officer has the right without a warrant to arrest a fugitive from justice. Davis v. State, 59 Okla. Cr. 26, 57 Pac. (2d) 634; Methvin v. State, 60 Okla. Cr. 1, 60 Pac. (2d) 1062.

It appeal's that appellant was at that time arrested as a fugitive from justice.

It follows that the objections made were properly overruled.

Arbie Beall testified that she lives at Medford; handed a picture marked defendant’s: exhibit A, she was asked: “Can you tell the jury ivhether or not you have ever seen the man whose picture you now hold?” Upon the state’s objection the court excused the jury. Witness then testified in substance that on the night of April 13, 1932, between 10 and 11 o’clock she saw a man standing by a big car parked in front of the Medford post office and Johnson’s drug store, that she lived over the drug store and was sitting at the window looking down on the street, the man had the hood of the car up. Mr. Ed Heiland came along and the man asked him for a flashlight; that she could not say for sure, but her judgment was the man she saw that night was the man in the picture.

Charles T. Warner, in the absence of the jury, testified that be lived at Turley, Okla., was a deputy United States Marshal in 1932. Identified defendant’s exhibit A as a picture of John Blanther, a man he had shot and arrested in Delaware county on December 30, 1932, and that he talked to- him in the jail at Yinita that day. He further testified: “I asked him how he was feeling and he said, ‘I don’t- think I will make it through the day.’ I said, Well, John, you haven’t got any chance and why don’t you come on and tell what jobs you have pulled so we can get this thing cleared up,’ ” and Blanther told him about robbing banks at Kinsley, Peru, and Sedan, Kan., and the bank at Coyle, Okla., and that about eight or nine months before he and another man had robbed the Medford bank, using an acetylene blow torch, and telling him where to find it. That as directed he went back to where the shooting occurred and near there found it. That Blanther was 6 feet and 1 inch tall and would weigh about 220 pounds. That on January 2, 1933, Blan-ther died as a result of the gunshot wound.

After hearing the arguments of counsel, the court sustained the objections interposed by the state. Thereupon the jury were recalled.

Chester Wood testified that he lives at Tulsa, was deputy sheriff of Osage county in 1932 and 1933, handed defendant’s exhibit A and asked what it was, answered: “That is a picture of John Blanther, a bank robber that was killed.” Asked: “Do< you know whether or not John Blanther owned for several years prior to' his death an efficient cutting torch?” Objection sustained. Mr. White: “We offer to* prove that he had a cutting torch equipped and of a character that would break through these safes, and that witness had seen him and had arrested him with the same sort of equipment.” Objection sustained. Mr. White: “We would like to make the same offer of proof by this witness that we did by the witness Warner, out of the presence of the jury.” Exceptions reserved. •

In his motion for a new trial on the ground of newly discovered evidence, the defendant attached and made a part thereof an affidavit of the widow of John Blanther to the effect that about the last of April or 1st of May, 1982, she had opened a handbag brought by John Blan-ther to the state of Arizona, where she was staying, and had observed in this handbag a quantity of bills of various denominations, with paper bands around them having thereon the name of the First National Bank of Medford; that upon inquiry, John Blanther told her that he had a short while before that robbed that bank.

The learned counsel for appellant in their brief say:

“That the testimony of the officers was competent as was the circumstances of finding the acetylene outfit, and the exclusion of that evidence was error, and that supported by the evidence indicated by the affidavit of the widow of John Blanther, that the failure of the court to grant the motion for new trial was error. That therefore appellant is entitled to have this court order a new trial at which he may produce this evidence.”

And further says:

“Our conclusion after an examination of the authorities is that no completely satisfying statement of the rule, either as to- its liberality of admission or as to the proper restriction, in the kind of evidence admissible, has ever been made by the courts.”

Citing and quoting from opinions in the following cases: Hines v. Commonwealth, 136 Va. 728, 117 S. E. 843, 35 A. L. R. 431; Satterwhite v. State, 77 Tex. Cr. 130, 177 S. W. 959; State v. Jenkins, 134 La. 185, 63 So. 869; State v. Scott, 117 Kan. 303, 235 Pac. 380; Commonwealth v. Murphy, 282 Mass. 593, 185 N. E. 486; People v. Mendez, 193 Cal. 39, 223 Pac. 65; also Wigmore on Ev., vol. 1 (2d Ed.) 139.

In Hines v. Com., supra, the Virginia Supreme Court of Appeals held:

“Evidence of admission of guilt of a homicide by one possessing motive and opportunity to commit it is admissible upon trial of another for the crime.”

In Blocker v. State, 55 Tex. Cr. 30, 114 S. W. 814, 131 Am. St. Rep. 772, it is held :

“In a homicide case, where the entire evidence is purely circumstantial, testimony that a third person has declared that he killed the deceased is admissible, his motive for the crime being as strong as that of the defendant.” "

It is elementary law that the defendant in a criminal case may show that another person committed the crime charged, and that he had no participation in it. But such guilt of a third person must be shown by competent evidence.

In Factor v. State, 28 Okla. Cr. 78, 229 Pac. 154, 158, it is said:

“It is the well-settled rule in this state that a defendant who is being tried on a criminal charge is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person hasi confessed that he committed the crime, and that the defendant had nothing to do therewith, and was not concerned therewith. Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84; Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279; Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; McNeal v. State, 15 Okla, Cr. 555, 179 Pac. 479.”

In the case of Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, this court held:

“A defendant, who’ is being tried on a criminal charge, is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, and that [he] the defendant had nothing to do. therewith and was not concerned therein.”

Citing and quoting from the opinion in Donnelly v. United States, 228 U. S. 243, 33 S. Ct. 449, 459, 57 L. Ed. 820, Ann. Cas. 1913E, 710, wherein Mr. Justice Pitney, speaking for the court, said:

“Hearsay evidence, with a few well-recognized exceptions, is excluded by courts that adhere to the principles of the common law. The chief grounds of its exclusion are, that the reported declaration (if in fact made) is made without the sanction of an oath, with no responsibility on the part of the declarant for error or falsification, without opportunity for the court, jury, or parties to observe the demeanor and temperament of the witness, and to search his motives and test his accuracy and veracity by cross-examination, these being most important safeguards of the truth, where a witness testifies in person, and as of his own knowledge; and, moreover, he who swears in court to the extrajudicial declaration does so (especially where the alleged declarant is dead) free from the embarrassment of present contradiction, and with little or no danger of successful prosecution for perjury. It is commonly recognized that this double relaxation of the ordinary safeguards must very greatly multiply the probabilities of error, and that hearsay evidence is an unsafe reliance in a court of justice. One of the exceptions to the rule excluding it is. that which permits the reception, under certain circumstances and for limited purposes, of declarations of third parties, made contrary to their own interest; but it is almost universally held that this must be an interest of a pecuniary character; and the fact that the declaration, alleged to have been thus extra,judicially made would probably subject the de-clarant to a criminal liability, is held not to be sufficient to constitute it an exception to the rule against hearsay evidence,”

Mr. Justice Holmes, dissenting, Avith whom concurred Lurton and Hughes, JJ., says:

“The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make anyone outside of a court of justice believe that Donnelly did not commit the crime. I say this, of course, on the supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick. The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no- other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which Avould be let in to hang' a man. Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917; and when we surround the accused with so many safeguards, some of Avhich seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the Irav and the arguments against the English doctrine are so well and fully stated by Mr. Wigmore that there is no need to set them forth at greater length. 2 Wigmore, Ev., §§ 1476, 1477.”

In the case of Brown v. State, 99 Miss. 719, 55 So. 961, 962, 37 L.R.A. (N.S.) 345, it was said:

“The rule excluding such confessions itself suggests the reason why they have not been more frequently resorted to in behalf of the guilty. The confession in question was made out of court, was not supported by the oath of the party confessing, and the party was never subjected to cross-examination, which might very quickly have disclosed the falsity of the confession and the motive that prompted it. The law, in determining what is hearsay, does not admit what a witness states some other person told him, any more than it admits what still another person may have imparted to the one next in the line of communication. It is all hearsay; and no just exception can be made because the party confessing has put himself in a position of some hazard. Many motives, apart from the love of truth and justice, induce men to' assume the gravest risks. Among the strongest of these is family affection, and it is observable that in this case the property against which the trespass was directed was that of Henry Brown and not his brother, the accused, and that in the confession proposed to be proved Henry Brown, while claiming to be the culprit, stated that his brother ‘had suffered long enough about the matter.’ The extreme case of a confession on the gallows by one claiming to be the true offender, employed by Wigmore to illustrate his view, affords no ground for the relaxation of the rule; for the experience assuring ns that the last breath of man not wholly bad is sometimes employed in the asseveration of a falsehood justifies the rejection of the hearsay statements of a malefactor who, having no longer any concern as to his own fate, may wish to' serve a pal, a kinsman, or a friend.”

In Hines v. Commonwealth, supra, the learned annotator says:

“The overwhelming weight of authority supports the rule that on the trial of a criminal case evidence of the admission or confession of a stranger that he perpetrated the offense is not admissible as substantive evidence tending to exculpate the accused.”

Under this statement follows a list of federal cases and cases from 24 states.

In Blocker v. State, supra, the learned annotator first says:

“The general rule in respect to the admissibility of confessions or admissions is well settled, although, strange to say, it has been necessary for the courts to repeatedly declare the rule in the same state, so persistently has the rule been assailed. The general rule laid down by the courts is that a confession or admission on the part of a third person that he committed the crime which the defendant is charged with having committed is mere hearsay, and not admissible in evidence in favor of the defendant where it does not constitute a part of the res gestae.”

Under this statement follows a list of cases, state and federal.

And further the annotator says:

“The rule in respect to the admissibility of dying declarations goes no further than to make such declarations admissible where the death of the deceased is the subject of the trial and the circumstances of the death are the subject of the declaration. Hence the fact that a third person confesses to the commission of the homicide with which the defendant is charged upon his death bed, under the belief that he is dying, does not render the confession admissible in evidence as a dying declaration.” Davis v. Commonwealth, 95 Ky. 19, 23 S. W. 585, 44 Am. St. Rep. 201.

And for the same reason a death-bed confession by a third person that he was guilty of a burglary is not admissible in exculpation of the defendant who is charged with its commission. People v. Hall, 94 Cal. 595, 30 P. 7.

The fact that the declarant is dead does not alter the character of the declaration made by him and render it admissible, notwithstanding its hearsay character. State v. West, 45 La. Ann. 14, 12 So. 7.

We do not consider it necessary to further review the authorities. We adhere to the well-established rule that evidence of confessions or admissions of a third person that he committed the crime which the defendant is charged with having1; committed are to be excluded as hearsay.

It follows that the evidence offered was incompetent for any purpose whatever, and the trial court did not err in excluding it.

These considerations also dispose of the contention that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence.

Counsel for appellant also1 criticize some of the instructions given by the court.

It appears from the record that exceptions were taken to four of the instructions given. No- authorities are cited in support of the criticisms made.

We have uniformly held that the instructions given by the court must be considered as a whole. The instructions define accurately and fully the law relating to robbery by firearms and correctly state the law of the case.

One of the grounds of the motion for a new trial and assigned as error is alleged misconduct on the part of the jury as shown by the affidavit of juror Claude Alexander, wherein he states that the other jurors in order to' induce affiant to agree to' a verdict of guilty stated in the jury room that Joe Newton’s picture was in the rogue’s gallery at Oklahoma City, and that he was a confirmed criminal and had been convicted of similar offenses, that he believed the defendant to be innocent, but on account of affiant’s physical condition, being ill during the deliberation of the jury, and because of the statements made by other jurors, affiant agreed to concur and did concur with the other jurors in returning, a verdict of guilty.

The record shows that when the jury returned their verdict, the defendant present in person and by counsel, the following proceedings were had:

“The Court: Mr. Foreman, have you arrived at a verdict in this case? The Foreman: Yes, sir, we have, your Honor.”

The verdict was handed to the court, passed to and read by the clerk.

On the motion of the defendant’s counsel the jury was polled. Thereupon the jurors being each separately interrogated by the court, “Is that your verdict?” each for himself separately answered: “Yes.” When the court clerk called the name of affiant, Claude Alexander, the court asked: “Is that your verdict, Mr. Alexander?” and said juror answered, “Yes, sir.”

When the verdict is recorded, and the jury discharged, the sworn statements of a juror cannot be received to show that he did not agree to- the verdict.

The rule repeatedly announced by this court is that affidavits or testimony of jurors in relation of what took place in the jury room cannot be received and considered by the trial court to impeach their verdict on the ground of misconduct. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Vanderburg v. State, 6 Okla. Cr. 485, 486, 120 Pac. 301; Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; Hayes v. State, 35 Okla. Cr. 19, 247 Pac. 111; Revis v. State, 42 Okla. Cr. 198, 275 Pac. 351.

Other questions are raised as to the admissibility of ecrtain testimony, but after careful examination we find them so lacking in substantial merit that we cannot feel justified to extend the opinion by their discussion.

Upon the record before us, we find nothing prejudicial to the rights of the defendant.

The objection to the sufficiency of the evidence to support a conviction is untenable, its credibility was for the jury.

The case appears to have been tried with exceptional care and ability, both on the part of the judge who presided and the able counsel who represented the state and those who represented the defendant as well, and appellant was ably represented in this court.

Upon consideration of the whole case, we are of the opinion that the defendant was fairly tried, the issues fairly submitted, and no error requiring a reversal is shown.

It follows that the judgment of the trial court should be affirmed, and it is so ordered.

DAVENPOBT, P. J., and BABEFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    LELAND J. LAKES v. STATE.
    No. A-9111.
    April 16, 1937.
    (67 Pac. [2d] 457.)

      Holden & Coe, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Leland J. Lakes, was convicted of murder in the district court of Oklahoma county, upon an information charging that in said county, on or about the 14th day of March, 1935, he did kill and murder Arthur Heenan, by shooting him with a pistol. The jury assessed his punishment at death. A new trial was denied, and, in pursuance to the verdict of the jury, he was sentenced to suffer death by electrocution. From the judgment pronounced and entered on the 21st day of October, 1935, he appealed by filing in this court on March 14,1936, a petition in error with case-made.

It appears that the homicide was committed on the 14th day of March, 1935, in the city of Oklahoma City, Oklahoma county; that Arthur Heenan was shot and killed by the plaintiff in error, hereinafter referred to as the defendant.

The substance of the testimony in this case being as follows: On the night of March 14, 1935, C. V. Morris and his family, who lived at 1125 West Thirty-First street, in Oklahoma City, left their home, locking all the doors and windows, and was out until about 8:30 or 9 o’clock in the evening. When Mrs. Morris drove into' the driveway and got out of her car and started into- the house she heard a noise, and discovered a man in the house who went out through a window in one of the north bedrooms. She rushed out of the house, and Arthur Heenan, who lived across the street, had also discovered the man who was burglarizing the Morris home, and came out with his pistol.

The deceased, Arthur Heenan, and Mrs. Morris got in her car and backed out to- the street and started to follow the man who had gone out of the house; in order to head him off they drove a block south and on around until finally they came to the intersection of Thirty-Second and Olie, and Mrs. Morris recognized the defendant, Leland J. Lakes, as the man she saw in their house. Mrs. Morris in her statement stated when they got to- the intersection of Thirty-Second and Olie, Mr. Heenan, who- was driving with her, opened the car door and walked around to the front of the car to- meet this man whom they had both seen leaving the Morris home; Mr. Heenan said, “Young fellow, I want to see you.” The defendant stopped and with a kind of look of surprise said, “You don’t want to see me.” Mr. Heenan said, “Yes, we want to see what you have got on you here,” At that time Mr. Heenan had a gun in his right hand; he got out of the car and walked around with the gun in his hand to the right-hand side of the fender. “When Mr. Heenan put his gun on the defendant he had his hands upi like this, not close to- him, but just this way. Mr. Heenan led him around the car and began searching him, he was on the east side of the car. Mr. Heenan began searching him, and first handed me a carton of Camels which he had taken from his outside coat pocket, and next handed me a gun that is marked Exhibit No. 7. Mr. Heenan said to me, ‘Is this yours,’ and I said, ‘Yes, that is ours.’ I took the gun and laid it down between the seats in the car; the gun belonged to Mr. Morris; my husband; it was taken from the chiffo-robe in our bedroom where Mr. Morris kept his papers. Mr. Heenan also handed me a box of dice, or it looked like dice — one of our boxes.

“When he started to put the defendant in the car, he said, ‘Mrs. Morris, what shall we do' with him, shall we take him down,’ and I said, ‘Yes, if you will, take him down’ — meaning to the police station.

“Mr. Heenan stepped around toward the south to open the back car door; I was sitting on the right side of the car — I had scooted over on that side; as Mr. Heenan opened this door the defendant wheeled and shot him; I saw the defendant when he pulled the gun and wheeled around; he did not say anything; when Mr. Heenan opened the door and pushed him, he whirled and said, ‘Oh, yeah,’ and shot; I heard two- shots; when the gun was discharged Mr. Heenan stumbled backwards south and east; while falling Mr. Heenan grabbed himself in the stomach and said, ‘My God, Mrs. Morris, that fellow has shot me’; he went clear doAvn to the pavement; the defendant turned and ran up Thirty-Second street and Art fell back on his heels and fell clear back to the pavement, and then raised up with his little gun in his hand and took aim at the fellow — looked like he held his gun this way — (indicating) and shot; I remember his shooting once. The defendant ran up Thirty-Second street about half a block and turned north between some houses and through a yard and disappeared. About the time he turned he staggered just a way over; wasn’t running fast, he was taking long strides and looking back most of the time.” Witness then identified the pistol that was taken off the defendant.

The proof shows that the defendant was burglarizing1 the Morris home and when discovered he ran out, and was followed by the deceased, Arthur Heenan, and Mrs. Morris until overtaken at the intersection of Thirty-Second street and Olie, and placed under arrest by Mr. Heenan. Mr. Heenan searched the defendant and found a gun and dice box belonging to Mr. Morris that had been taken from the Morris home. Mr. Heenan took some cigarettes from the defendant, and, when the deceased, Arthur Heenan, started to put the defendant in the car to take him to the police station, as he turned to open the door of the car, the defendant wheeled and fired the fatal shot at the deceased.

The proof shows that Mr. Heenan was a private citizen, but saw the defendant engaged in burglarizing the Morris home and took his gun and joined Mrs. Morris and followed the defendant to where the fatal shot was fired.

It is further shown that at the time the defendant committed the homicide he was fleeing from where he had been disturbed in committing the burglary, which under the laws of this state is a felony, and the only excuse defendant had for firing the fatal shot was to avoid being placed in jail upon a charge of burglary, for which he was caught in the act.

It is not disputed by the testimony of the defendant that he fired the shot that took the life of Arthur Hee-nan, nor is it disputed that the property taken from him before he fired the fatal shot belonged to the Morris family. The defendant’s testimony attempts to show there was no intention to' kill, but that the shot was fired, not for the purpose of taking the life of any one, but for the purpose of preventing his being taken and placed in jail.

The testimony shows that after the shooting, the defendant escaped and was gone until the next afternoon or evening, when he appeared at the home of Mr. C. E. Stewart, who lived at 35 East Second street, in Oklahoma City, and asked Mr. Stewart if he would do him a favor, and Mr. .Stewart told him it all depended on what it was, and the defendant asked him to call the officers and an ambulance, and Mr. Stewart stated, “I called the officer, but did not call an ambulance.”

It is further shown that the deceased, after he hadi fallen to the ground from the wound inflicted by the defendant, raised himself and steadied his arm, aimed a pistol at the defendant where he was fleeing and shot him through the shoulder. The defendant stated to. Mr. Stewart that he was the man who had shot the oil man the night before.

The foregoing is the substance of the testimony introduced by the state and the defendant. A great deal of testimony was introduced, and many questions asked on immaterial points that did not prove or disprove any issue joined in the trial of the defendant. .

In his assignment of errors the defendant alleges 25 errors as grounds for reversal of this case. Many of the questions raised by the assignment of errors are questions immaterial to the question as to the character of the homicide committed by the defendant. It is not disputed that the defendant fired the shot that took the •life of the deceased, Arthur Heenan, after he had been placed under arrest by the deceased and partly searched. That the shot was fired by the defendant when the deceased started to open the door of the car to- put the defendant in the car with the intention of driving him to the police station.

Arthur Heenan, the deceased, as shown by the record, was not an officer, but was a citizen and resident of the city of Oklahoma Oity, and lived across the street from the Morris home, which the defendant was burglarizing, and, as a citizen of the state seeing the burglary being committed by the defendant, and seeing him leave the house through the window, joined Mrs. Morris and followed the defendant, and, as shown by the record, placed the defendant under arrest.

The action of the deceased is fully authorized by the statutes of Oklahoma, which give any citizen the right to make an arrest when a felony is being committed in his presence or he has reasonable grounds and information to' believe the defendant has committed a felony. Sections 2786 and 2787, O. S, 1931 (22 Okla. St. Ann. §§ 202, 203), are as follows:

“2786. A private person may arrest another:
“First. For a public offense committed or attempted in his presence.
“Second. When the person arrested has committed a felony although not in his presence.
“Third. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
“2787. He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to- submit, except when he is in actual commission of the offense or when he is arrested on pursuit immediately after its commission.”

It is not disputed that the deceased and Mrs. Morris immediately pursued the defendant as he fled from the Morris home, where he was burglarizing it when discovered, and the defendant was placed under arrest by the deceased. In the opening statement of the defendant to the jury it is stated the defendant did not intend to taire the life of the deceased, that he fired the shot at the deceased unintentionally, or from pain caused by tbe wound inflicted by tbe deceased, that tbe gun was discharged striking tbe deceased, inflicting tbe fatal injury that caused bis death.

In support of this contention some testimony was introduced to show that at tbe police station tbe defendant was able to use bis band to sign bis name tO' a statement made by him to tbe officers, and proof by one of tbe doctors was offered tending to show that he bad tbe use of bis band sufficiently to sign bis name. This testimony was offered by tbe defendant in support of bis contention that be did not intend to harm tbe deceased, that it was possible when be received tbe wound inflicted by the shot from the gun of tbe deceased that be clamped bis finger on tbe trigger and bis gun was discharged, entering tbe body of tbe deceased. Throughout the trial of tbe case there is no competent testimony offered by tbe defendant contradicting tbe testimony of tbe state as to tbe burglarizing of tbe bouse, tbe pursuit by tbe deceased and Mrs. Morris of tbe defendant, where be was overtaken, placed under arrest, and partially searched and a pistol and other things taken from bis person, and that the defendant drew the pistol and fired tbe shot into tbe body of the deceased, from which wound be died.

Tbe defendant in bis brief and argument urges that be was deprived of a fair and impartial trial by the actions of tbe county attorney and bis assistant, and some remarks made by tbe trial court.

In tbe body of tbe opinion, in Brooks v. State, 33 Okla. Cr. 296, 243 Pac. 998, this court said:

“A defendant, whether guilty or not, is entitled to have tbe questions of fact determined by tbe jury, without any intimation or unfair comment by the trial judge.”

The record has been carefully examined, and we fail to find any statement or expression, intimation, or unfair comment made by the trial judge in this case. It is true, in a contest between opposing counsel in ruling upon some of the objections interposed, the trial judge made some statements that were rather emphatic. It was not necessary for the court to make them, yet there is nothing-in the statements that tend in any way whatever to show bias or prejudice by the court, or anything that would indicate how the court felt with reference to the guilt or innocence of the defendant.

It is next urged by the defendant that the county attorney in analyzing the statement in substance stated:

“Now I will show you the premeditated design. Hee-nan had the gun on him you see. Arthur Heenan can’t tell you anything about it because he is dead, and Mrs. Morris, they brought her here and there was nobody else there, and she said that this defendant — look. He didn’t get his hands up here, but this defendant got his hands up here. Did you notice that? Uncontradicted, and there were only three people there, and Mrs. Morris told you about it, and testified about it, and Arthur Heenan is dead. So, he got his hands up here, you see. Premeditated design.”

The defendant argues that the county attorney had no other purpose in his argument than to call the attention of the jury to the fact that the defendant had failed t.O' take the stand and testify; citing in support of his contention Rader v. State, 12 Okla. Cr. 354, 151 Pac. 270, and many other cases. Defendant charges that the statement of the county attorney was made for the purpose of indirectly referring to the fact that the defendant had not taken the witness stand and testified in his own behalf, and urging it was an attempt upon the part of the county attorney to do indirectly what he could not do directly. In Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644, 645, in referring to tbe statute prohibiting tbe county attorney from referring to tbe fact that tbe defendant did not testify in bis own behalf, the court said:

“This statute will not be deemed to go to tbe extent of prohibiting comment upon inferences reasonably to be drawn from a failure to. controvert tbe state’s showing by proof other than that which might be given by tbe defendant personally.” Citing section 2698, C. O. S. 1921, now section 8068, O. S. 1931 (22 Okla. St. Ann. § 701).

Tbe remark of the county attorney in bis argument to tbe jury complained of by the defendant, under tbe facts as disclosed by the record, held, not a comment upon the failure of the defendant to testify within the meaning of the statute. Johns v. State, 55 Okla. Cr. 100, 101, 25 Pac. (2d) 716; Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644; McDaniel v. State, 35 Okla. Cr. 425, 260 Pac. 804.

Counsel for the state in propounding questions and in his argument became very dramatic at times and attempted to appeal to the sympathy of the jurors, yet we hold that the effort of the county attorney, in view of the testimony in the record, was not such a violation of the duty of the county attorney as to require a reversal of this case.

In White v. State, 34 Okla. Cr. 424, 246 Pac. 1114, this court in the second paragraph of the syllabus said:

“A judgment of conviction will not be reversed on the ground of improper admission or exclusion of evidence, unless after an examination of the entire record it appears that there has probably been a miscarriage of justice or a substantial violation of some constitutional or statutory right of the defendant.”

In Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941, this court said:

“The admission or exclusion of testimony which, in the light of subsequent developments during the trial, indicates conclusively that no' injury did or could have resulted is not ground for reversal of a judgment.”

It is not deemed necessary to refer to each assignment presented by the defendant, for the reason that, after a careful examination of the assigned errors and the argument in support of the same, we do not think they possess sufficient merit to warrant a reversal. The testimony in this case conclusively shows that the defendant was discovered burglarizing the Morris home and when he ran from the house was pursued by the deceased and Mrs. Morris, and when arrested and partly searched by the deceased, the defendant without any justification or notice to' the deceased fired the shot that took the life of Arthur Heenan.

There is nothing in the record to show that the defendant was justified in shooting the deceased, and no defense is made for the defendant except that he did not intend to' take the life of the deceased, and that he probably in his nervousness pulled the trigger and shot the deceased. The record clearly shows that the defendant killed the deceased in order to prevent the deceased and Mrs. Morris taking him to- the city officers where he could be placed in custody.

The crime for which the defendant was, on trial arose out of the burglarizing of the Morris home, where the defendant was seen and fled from the home pursued by Mrs. Morris and the deceased, Arthur Heenan. This killing would not have occurred if the burglarizing of the Morris home had not been committed, as the defendant was pursued from the time he was discovered in the Morris home up to the time he was placed under arrest by the deceased. The defendant was a stranger in Oklahoma City, and, if bis own statement is to' be considered, be bad no object in view except to' burglarize and rob. Not a single mitigating circumstance appears in tbe record. No one attempts to justify or can justify tbe acts of the defendant. Tbe defendant did not hesitate to take tbe life of tbe deceased in order to' prevent tbe deceased taking him to tbe police station and turning him over to tbe officers.

Tbe killing of tbe deceased, as shown by the record, was a willful, cold-blooded murder, committed for the purpose of escaping from the burglary be bad committed, at tbe time be was discovered and pursued by tbe deceased and Mrs. Morris.

It is not deemed necessary and would serve no useful purpose to prolong this opinion further. It is sufficient to say that tbe defendant was accorded a fair and impartial trial. There are many improper questions propounded by the prosecution contained in tbe record, but, after a careful consideration, we bold there are no' reversible errors. Tbe evidence is sufficient to sustain tbe charge of murder and the sentence imposed on the defendant of electrocution. The judgment is affirmed.

Tbe original time for tbe execution having passed during tbe pending of this appeal, it is considered, ordered, and adjudged by tbe court that the judgment and sentence of tbe district court of Oklahoma county be carried out by tbe electrocution of tbe defendant, by tbe warden of the state penitentiary, at McAlester, Okla., on Friday, June 25, 1937.

DOYLE and BAREFOOT. JJ.. concur.


author: BAREFOOT, J.

text:
    H. J. McCARRON v. STATE.
    No. A-9134.
    April 16, 1937.
    (67 Pac. [2d] 461.)
    Glen O. Morris and Priest & Belisle, for plaintiff in error.
    Mac Q. Williamson, Atty.-Gen., Sam H. Lattimore, Asst. Atty. Gen., and S. T. Roberson, Co-. Atty., for the State.
   BAREFOOT, J.

The defendant was charged, and tried jointly with one Yic Long, with having stolen from George Ulfers, in Canadian county, the following described property, to wit: “One light yellow Jersey yearling, weight about 460 pounds, no marks or brands, and one two year old half Jersey, light red color, weight about 720 pounds, muley.” He was sentenced to serve a term of three years in the penitentiary.

It is first contended by defendant that there was a variance between the property as described in the information, and the evidence offered at the trial. The prosecuting witness, George Ulfers, testified as to the description of the property, as follows: “One of them was yellow, was light yellow, with little horns, a yearling; the other was two years old, a mnley, and light color.” “The yearling weighed about 460 and the two year old weighed about 720.” “The other one was a muley, but still he had little buttons.”

Mr. D. C. Oldham, who hauled the cattle for the defendant to> the stockyards at Oklahoma City, testified with reference to the description, as follows:

“Well there was one that looked like he might have been a yearling, he was about 550 I guess, 560 or something of that kind, and the other about 600 or 700, something like that. One of them looked about half Jersey, something like that, the least one; the other one was a little better grade, he was about a quarter Jersey, I don’t know, he “wasn’t more than that any way, didn’t look to be. He was between light red and a dark, he wasn’t real dark; the other one wasn’t real yellow, he was kind of real light Jersey looking. One of them had horns about 5 or 6 inches long, the little one, the other one had stub horns, little stub horns.”

The defendant testified, as to' the description, as follows :

“Q. One of them had horns and one was a muley? A. One was a mnley. Q. What was their color? A. Light red. Q. Was there Jersey in either of them? A. There could have been. Q„ What is your judgment? You are a cattle man. A. Well, there was Jersey in both of them. Q. One of them was half Jersey, was he not? A. There was a half Jersey — I said I thought they both had Jersey in them.”

It Avill be seen that there is some slight difference in the description of the cattle, but in general terms the description is about the same. We do not think there is any substantial variance between the evidence offered as to the description of this property, and the allegations of the information.

The evidence in this case reveals that the prosecuting witness, George Ulfers, was a farmer, living in the south part of Canadian county, on Highway No. 41, which is east from Union City to Oklahoma City; that he had about 23 head of cattle in a pasture on the highway, and that about March 1, 1935, Vie Long, a codefendant, came to his place for the purpose of buying cattle; that on this occasion he sold him two heifers, and that he carried them away in a trailer which he had attached to his car at that time; that upon this occasion the said Long tried to buy a steer from him, this, being one of the steers that was afterwards stolen from his pasture. He refused to sell him the steer. George Ulfers further testified that he saw the 23 head of cattle in his pasture on Tuesday morning, April 2, 1935, and that on Thursday, April 4, 1935, when he next saw them, two' were missing; that they were the two> heretofore described. On Friday, the 5th day of April, he examined his pasture fence and on the north side, next to No. 41 Highway, he found a place Avhere the top wire had been cut, and the second wire from the top was loose. He found trails and tracks indicating the place where the cattle had been loaded. The witness testified that the tracks made by the trailer were very similar to the tracks made by the trailer tires that Vic Long had at the time he purchased the two heifers, and that both tracks were diamond tread tracks. The evidence also showed that the deputy sheriff, Mr. More-land, who was Avith him, found a part of a rope near where the cattle had been driven into the trailer, and near the same spot found one of the horns or buttons that had been knocked from the older steer. That on Monday, April 9th, the witness and Mr. Moreland, a neighbor who was a deputy sheriff, came to Oklahoma City for the purpose of investigating in reference to the stolen property. That they went to the house of the defendant Mc-Carron, and there saw a trailer with diamond; tread tires, and two ropes which were identified at the trial as being, ropes Avith which the cattle were tied at a certain point southwest of the packing plant at Oklahoma City on April 5th. The witness Walter W. Moreland testified to making an examination of the premises where the cattle were placed in the trailer and to' the finding of the rope and the small button or horn, and of coming to Oklahoma City with Mr. Ulfers on Monday, April 9, 1935. He testified with reference to a conversation had with the defendant on the 10th day of April, the date he was arrested, that he asked the defendant if he sold these cattle on the 4th or 5th, and that the defendant answered that he did not know; he was about half drunk and did not know just what date it was that he had sold them. In the conversation with the defendant McCarron, defendant said, “Do you reckon Long has double-crossed me,” and that the defendant made this same statement again on the same date. He also testified that the rope found in Mr. Ulfer’s pasture was like the rope that was in the trailer.

D. C. Oldham, a witness for the state, testified that he lived in Oklahoma City, and was engaged in trading, buying, selling, and trucking; that on the morning of April 5, 1935, Speck McCarron, the defendant, came to his place before he had breakfast and employed him to haul a couple of yearlings from out at the edge of town; that after he had his breakfast he met McCarron at the pool hall; that he was a little slow in getting ready and McCarron came back to his house, and as he went out to get in his truck he saw the codefendant Vic Long coming up the lane, and that Mr. Long said, “We have got to hurry if we get those cattle in time to sell them before the market closes”; that they went out after the cattle and that they were about- four miles from Packing-town, a little southwest of the airport, and were located just across the road from defendant McCarron’» mother’s farm. The cattle were tied to a fence post with ropes. The witness said that the defendant McCarron claimed that he bought the cattle and paid $50 for them. The witness hauled the cattle to the stockyards, where they were sold to- Halliburton Company, and he received his -pay of $2 for the hauling of them. The check for the balance of $39.18 was made out in the name of defendant McCarron, and indorsed by codefendant, Vic Long. The witness also testified that one of the steers had a nub horn, and had blood on the other side of the head. Other witnesses testified to1 the sale of the two steers on the Oklahoma City market on the 5th day of April, 1935; one of the checks being made to the defendant H. J. Mc-Carron, for the sum of $39.18, and one check for $2 to I). C. Oldham, for the hauling of the steers.

Mrs. D. C. Oldham testified that she was the wife of D. O. Oldham, who hauled the cattle for Mr. McCar-ron, and that he came to their house about 6 or 7 o’clock on the morning of April 5, 1935; that she saw the code-fendant Long there at the side of the house, but that he did not come in; and that she saw the defendant McCar-ron and the codefendant Long there three times. The third time she saw the co defendant Long he wanted some ropes, which had been left in the truck in which the steers had been hauled.

Floyd Oldham testified that he was the son of D. O. Oldham, and that he had known defendant McOarron and codefendant Long for seven or eight years; that he saw the defendant and the co defendant at his father’s home. After his father hauled the cattle, the codefendant Long came there after some ropes that were left in his father’s truck, and that he got the ropes for Long, the ropes which were identified by the witness as being the ropes that were in the truck, and with which the steers were tied in the lane near the home of defendant’s mother. He testified to getting the ropes out of his father’s truck and giving them to Mr. Long.

W. M. Golden testified that he was a deputy sheriff, and identified the ropes taken from Mr. Long’s car, and that the defendant Long told him they were the ropes taken off of the cattle, but that the lariat rope was his.

The first witness for the defendant was his codefend-ant, Vic Long, who testified that he was engaged in the business of buying and selling cattle and had been for 25 years; he testified that he had been in Oklahoma City for the last twelve years; he formerly shipped cattle, but of late had been buying in trucks and trailers mostly; he testified of the going to the home of the prosecuting witness Ulfers to look at some cattle about March 1st, and to buying a couple of heifers from him at that time. He admitted that he tried to buy a. steer from him, but that Mr. Ulfers refused to sell the steer at that time; that he was acquainted with the defendant McOarron, and had had many transactions with him, and that they had traded together in the streets for ten or twelve years; that they would buy and split the profits; he testified that he was at home on Wednesday and Thursday, April 3 and 4', 1935, and was sick with a little flu; that on the morning of April 6th, about -7 o’clock, he went to the defendant McCarron’s home and that they came to Pack-ingtown together. He testified: That he got to McCar-ron’s house about 7:00 o’clock and that it was about 7:30 or 8:00 o’clock when McCarron got out of the car at Pack-ingtown and that about an hour later he met McCarron at a meeting place near the stock yards; that McCarron told him “that he had seen a fellow wlm had broke down out there, and who had some cattle he could buy worth the money”; that he gave McCarron his pocketbook, and that the pocketbook had $52 in it; that McCarron wanted him to go and get the cattle, but he told him that his trailer had a flat, and that it was at home, and for him to hire somebody else; that McCarron left, telling him that he thought he could get Mr. Oldham to haul the cattle; he admitted going to' Mr. Oldham’s house and said that he did so for the purpose of getting the cattle in so that they could be sold on the market on Friday before it closed. He admitted indorsing the check which was received for the cattle and cashing it at the stockyards bank. He stated that he did not know that there was anything wrong with these cattle. He identified certain tires that were introduced in evidence and were claimed to> have been taken from his trailer and identified the ropes as being the ones taken from the truck. He remembered the day that he was arrested, April 10th, and that his trailer was over at McCarron’s house Tuesday night, and when the load came back it was almost dark, and as he had no tail-light he did not want to take it through town.

The defendant McCarron testified in his own behalf. He corroborated the testimony of his codefendant Yic Long, and especially in reference to going with him to Packingtown early on the morning of April 5th; that after he got out of Long’s car at a beer or sandwich shop back of the bank building, a fellow hollowed at him and asked him if he would buy a couple of cattle; that he told him he did not know whether he would or not, and that the man asked him if he knew where he could get a truck to haul them in, and he told him of a man by the name of Coffer that he might get to haul them, in; that he went into the beer joint and drank several glasses of beer, and that Vic Long came back in; that he told Vic Long of the offer he had just had in reference to the cattle, and Vic told him that he had the money, and thereupon handed him his purse, and he left to see the cattle owner; that he went out and found the owner of the cattle, down by the post office; and the owner told him the truck-men had never opened up; that he then told the cattle owner that he would look at the cattle, and they went out to see them, about a half mile south of Portland avenue, on the south line of the defendant’s mother’s property. He testified that he never knew the name of the man who owned the cattle and never at any time asked him what his name was; that he was driving a. 1929 or 1980 Chevrolet coupe; that he finally bought the cattle for $50, and paid cash for them. He testified that he stayed at the beer place 30 or 40 minutes; he said that it was about 10 o’clock when he and Oldham went after the steers. He testified that he went, with a man whose name he did not know, to see the steers before buying them. He testified on cross-examination that he had been convicted of driving a car while drunk, and several times for being drunk, and that these were the only offenses that he had been convicted of, or pleaded guilty to. He claimed that he had never seen the steers before that morning.

Certain other witnesses testified for the defendant, testifying to' hearing conversations between the defendant and codefendant Long that tended to corroborate the testimony in reference to the defendants being abont to purchase some cattle from some one, and the codefendant Long giving him his pocketbook. Certain other witnesses testified to the good reputation of the defendant.

Mary Simpson testified for the defendant, saying that she stayed all night at Mrs. McKenzie’s, being the place where Speck McCarron lived, on the night of April 4, 1935, and that she saw the defendant between 12:3Q and 1:3'0 that night; that Speck came in and that they sat there and talked, and after talking awhile she looked at the clock and told Speck that he had better go to bed, that it was a quarter until 2; and that Speck was there at home the balance of the night.

Part of the evidence in this case is what is known in law as “circumstantial,” but in cases of this character it is often necessary to prove some of the essential facts by circumstantial evidence. The jury heard all of the testimony and had the opportunity to observe the witnesses on the stand, and heard the testimony of the defendant and his codefendant, and after due deliberation found the defendant guilty. They did not believe the story he told in reference to buying the steers from some man whom he did not know and whose name he did not ask. They evidently found that he had an opportunity to commit this crime before he returned to his home on Thursday night, April 4th, at from 12:30 to 1:30, as testified to by those who were at his home that night.

This court has uniformly held that where a conviction rests largely upon circumstantial evidence, and where circumstances. are proven from which the reasonable and logical inference of guilt clearly arises, and which exclude any reasonable hypothesis except the guilt of the accused, although the evidence is conflicting, the court will not disturb the verdict for insufficiency of the evidence. Gourley v. State, 49 Okla. Cr. 24, 292 Pac. 873; Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436; Coppler v. State, 52 Okla. Cr. 275, 4 Pac. (2d) 700; Gentry Webb et al. v. State, 54 Okla. Cr. 150, 16 Pac. (2d) 261.

Defendant complains that the court erred in the giving of certain instructions and its refusal to give certain requested instructions. We have very carefully examined the instructions given and those requested, and we find that the court instructed the jury that the mere possession of recently stolen property is not, in and of itself, sufficient to establish the defendant’s guilt, but is only a circumstance to be taken into consideration together with all the other facts and circumstances in arriving at the guilt or innocence of the defendant. This instruction, together with all the instructions given, including one upon circumstantial evidence, properly protected the defendant as to the defense made in this case. In the case of Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010, 1012, the court says:

“While it has been held by this court that, when requested, the defendant is entitled to an affirmative instruction covering the defense interposed, and it would1 be reversible error to refuse such instruction when requested, yet in this case the defense interposed was not in its nature affirmative, but amounted merely to a negation of guilt, and for that reason we are of the opinion that the trial court’s instructions, requiring the state to prove guilt beyond a reasonable doubt as against the presumption of innocence, were sufficient.”

The contention that the remarks and conduct of the county attorney were such as to1 constitute prejudicial error cannot be sustained. The record does not show that exception was taken at the time that the argument was made, and the only proof is by evidence at the time that the motion for new trial was passed upon. This court has often held that this does not constitute error.

From an examination of the record in this case, we are of the opinion that the defendant had a fair and impartial trial and the verdict of the jury should be permitted to stand.

It is therefore ordered that the judgment of the district court of Canadian county be affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


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    VIC LONG v. STATE.
    No. A-9135.
    April 23, 1937.
    (67 Pac. [2d] 980.)
    Mike Foster, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and S. T. Roberson, Go. Atty., for the State.
   BAREFOOT, J.

This is a companion case of that of H. J. McCarron v. State, 61 Okla. Cr. 264, 67 Pac. (2d) 461, decided by this court on the 16th day of April, 1937.

The defendants were tried jointly, but have lodged separate appeals in this court. The defendant was convicted and sentenced to serve three years in the penitentiary. The evidence is fully set out in the McCarron Case, and the errors reviewed in that case, with the exception of the contention of the defendant that the court erred in permitting prejudicial and grossly unfair conduct on the part of the county attorney, against this defendant, during the progress of the trial. This error is based upon the cross-examination of certain witnesses offered by the defendant to establish his good character and reputation. The county attorney was permitted to ask these witnesses, on cross-examination, whether they had not heard of the defendant having a case pending against him for cattle stealing in Kingfisher county, and permitting the county attorney to argue this evidence to the jury in his closing argument. One of the witnesses, in answer to this question, said that he had heard of such a charge.

At first glance it might seem that the contention of the defendant was correct, but an examination of the authorities reveals that the overwhelming weight of the adjudicated cases is to the effect that such questions are competent on cross-examination, to test the credibility of the witness, and for the purpose of determining the weight and value to be given to his testimony in chief. It is admissible, not for the purpose of establishing the truth of such reports, but only to establish the credibility of the. witness and to determine the weight of his evidence.

This court, in the early case of Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271, 275, lays down the doctrine :

“As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of a character witness to' show the sources of his information and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to' be given to his testimony.”

This same doctrine has been upheld in other cases from this court. See Hugh Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Jones v. State, 17 Okla. Cr. 561, 190 Pac. 887.

In 14 L. R. A. (N.S.) 739, appears an annotated note Avhich gives an extensive discussion on this identical proposition and cites the authorities from many states. In this note the editor says:

“It- is manifestly an important question, when character is in issue in a litigation, whether the witness who testifies to the good or evil character of a person is worthy of credit. In testing the credibility of such witness, the same means are resorted to as are employed to' determine how far a witness who testified to any other fact of similar relation to the issue on trial is to be believed. His sincerity, his disinterestedness or bias, the extent of his knowledge or information, his acquaintance with the speech of the people of the community in which the person characterized resides, and the opportunities he has had for .acquiring accurate information on the subject, are all matters legitimately open to inquiry. If this is steadily kept in mind, much that appears at first sight to be puzzling and contradictory in the decisions and judicial dicta will become plain and harmonious,” See State v. Crow, 107 Mo. 341, 17 S. W. 745; Holloway v. State, 45 Tex. Cr. Rep. 303, 77 S. W. 14; McCormick v. State, 66 Neb. 337, 92 N. W. 606; People v. Moran, 144 Cal. 48, 77 Pac. 777.

In the closing argument of the county attorney, objection was made by defendant to his arguing of this evidence to' the jury. If the evidence was admissible, and we have so' held, the county attorney had the right in his closing argument to refer to the same. The court properly advised the jury as. follows:

“The only reason the court permitted the reference to the charge of an offense other than the one on trial, was for the purpose of testing the knowledge and belief of the witness who was being cross examined, as to the knowledge or information he had relative to the reputation of the defendant, Vic Long, and it should be considered by you for no other reason and for no other purpose.”

We have carefully examined the record in this case. The jury, after hearing the witnesses, evidently came to the conclusion that the defendant participated in the commission of the larceny of these cattle.

The defendant had a fair and impartial trial. We are of the opinion that the judgment of the district court of Canadian county should be affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


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    REUELL RICHARDSON v. STATE.
    No. A-9235.
    April 23, 1937.
    (67 Pac. [2d] 804.)
    Edwin T. Watkins and Howard M. Redwine, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information filed in the district court- of Le Flore county charged with the crime of robbery with firearms; was tried, convicted, and sentenced to serve a term of 25 years in the state penitentiary, and by case-made with petition in error attached, has appealed to this court.

The testimony on behalf of the state shows that on or about the 10th day of February, 1936, Eayford Rich was in the city of Wilburton, in Latimer county, Okla., and started to- his car preparatory to leaving- the city; when Rich started to get in his car the defendant approached him and climbed in the car, and when the car started put a gun in Rich’s side and asked him about driving to certain places; they drove for some time and the defendant directed the owner of the car to turn on the road running from Poteau to- Talihina, and had him drive to a little country town named Summerfield, where he had the prosecuting witness stop and put gasoline in the car; he then had him turn the car and drive back towrard the town of Wister, in Le Flore county.

The defendant had the prosecuting witness Rich turn off on a byroad and after he had driven a mile or two-made him get out, and the defendant took the car and drove away. Rich walked to Wister and by phone reported to the county officers what had taken place. The officers began to search and that evening on the road between Poteau and Wister the defendant drove up to where two- officers were and they recognized the car and took the defendant into- custody.

During the time the defendant and prosecuting witness were in the car the defendant talked on various subjects; one Avas he wanted to- rob a bank and wanted the prosecuting witness to join him in the robbery, which he declined to do-.

The evidence is conclusive that the defendant took the car from the prosecuting witness- Rich because Rich was afraid to do- anything after the defendant placed the gun in bis side and then put it in bis pocket, where tbe proof shows be was keeping bis band most of the time be was driving with tbe prosecuting witness. Some testimony was introduced with reference to some time prior tO' the time of tbe charge of robbery against tbe defendant in this case; he hired a man by tbe name of Crews to drive him to Calhoun, in Le Flore county, and instead of stopping or going to- Calhoun be bad Crews drive out into tbe mountain range, where something went wrong with tbe car and they abandoned it, and he and Crews started to walk across tbe mountain to the highway leading from Wilburton to Wister, and the defendant finally left Crews and went on his way, and Crews found his way to the main highway and reported to the officers at Poteau.

The defendant in his testimony admits getting in the car with the prosecuting witness Rich, and admits having the gun, but attempts to say that after talking with the owner of the car on the subject of robbing the bank Rich refused to- take any part in it, but did agree to let him use his car, which is positively denied by the prosecuting witness Rich. When the defendant was arrested he was in possession of the car belonging to Rich.

The foregoing is briefly the substance of the testimony as shown by the record.

The defendant has assigned and argues five errors alleged to- have been committed by the trial court. The first assignment presented by the defendant is that the plaintiff in error was forced to- trial over his objection without the aid and benefit of counsel and was thereby prevented from having a fair and impartial trial. The record shows that on April 29, 1936, in the cases of the State v. Reuell Richardson, Nos. -2935-2936, the defendant was present and Foster Windham, member of the local bar, was appointed to represent the defendant in two cases; that on May 18, 1936, State v. Beuell Bichard-son, No. 2935, the defendant appeared and requested and stated he preferred to present this defense rather than trust it to an attorney, and Foster Windham’s request to withdraw was granted.

On June 2,1936, the record shows that after the court convened, the court stated to the defendant as follows :

“Court: I called you to find out whether you was still of the opinion when I talked with you with reference to an attorney? Defendant: Yes, sir. Court: You still want to represent yourself? Defendant: I need the aid of an attorney hut I want to represent myself. Court: Now if you want an attorney who' will represent you, you have the right for the court to appoint one. If the court appointed you an attorney he would try your case for you. The court advises you to have an attorney but this court is not going to appoint one if you desire to represent yourself. Defendant: Well, under those circumstances just let it go. Court: You have made up your mind to that effect? Defendant: Yes, sir. Court: Let the record show that the court offers to appoint an attorney for the defendant but the defendant declines, stating he prefers to try the case himself.”

As disclosed by the record, the defendant preferred to defend himself, and there is no merit in the contention of the defendant that the court deprived him of his constitutional right by not appointing an attorney. It is true that under the Constitution of Oklahoma the defendant is entitled to have counsel appointed by the court, provided he is unable to pay for the same. Section 2929, O. S. 1931 (22 Okla. St. Ann. § 464), reads as follows:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.”

The record shows that the court had appointed counsel for the defendant when he came into' court and advised the court that he did not want counsel, and counsel was then permitted to withdraw from the case. As disclosed by the record, the court did not deny the defendant counsel, or refuse to appoint counsel for him, and the defendant in open court refused to permit counsel appointed to try his case. There is an old adage, which has a great deal of truth in it, “That when a defendant elects to try his case and not accept the aid of counsel, he has a fool for a client.” The defendant was accorded every right under the Constitution of the state, as the court appointed him counsel, and after he refused to accept counsel in open court, and stated he preferred to try his own case, he cannot be heard to' complain that the court had denied him a constitutional or statutory right.

The attorneys representing; the defendant in this court have faithfully and honestly worked for the rights of the defendant, and the brief filed shows they had given considerable thought to the defendant’s case, and devoted1 a great deal of time in the preparation of the brief. It is unfortunate for the defendant that he did not have the counsel that represents him in this court represent him in the trial court, yet there is no' law compelling a person charged with crime to accept counsel, as they have the right under the law to be heard personally and by counsel, but the court cannot compel a person charged to accept services of counsel, over his objections.

It is further argued by the defendant that the district court of Le Flore county was without jurisdiction to try the defendant, for the reason that the venue was in Latimer county, as the defendant first got in the car and pointed his pistol at Rayford Rich in Latimer county, Okla. Section 2730, O. S. 1931 (22 Okla. St. Ann. § 124), is as follows:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

The testimony shows that at the time the defendant got in the car of the prosecuting witness Rich, after he had his gun on him he put the gun in his pocket and! kept his hand in the pocket where the gun was most of the time, and after he reached Le Flore county he continued to keep his hand in his pocket where the gun was until he dispossessed the prosecuting witness of the car and drove away with it. It is perfectly clear that the venue was properly laid in Le Flore county.

The court has carefully considered the record in this case, and the argument of counsel for the defendant, and have examined the authorities cited, but we fail tO' find in the record any error sufficient to' warrant a reversal of the case.

It is not deemed necessary to discuss separately the different assignments, for the reason, as stated herein, they are without sufficient merit to warrant a reversal. The defendant was accorded a fair and impartial trial. The court correctly stated the law applicable to' the facts. Finding no errors in the record, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


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    WESLEY D. MURPHY v. STATE.
    No. A-9121.
    April 23, 1937.
    (67 Pac. [2d] 978.)
    L. E. Roseboom and Charles Swindall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information charged with assault with a dangerous weapon, was convicted, and sentenced to* be confined in the county jail for one year. The record was properly saved, and the defendant has appealed to' this court.

The evidence on behalf of the state, in brief, is that the defendant was a married man living in the neighborhood of Enid or Garber, and was working in the oil field; in the afternoon before the trouble the next morning, the defendant was going to Garber and met Thomas H. Con-yers in a car accompanied by the defendant’s wife. It is shown the defendant Avent on to Garber and got something to eat and while in Garber saw bis step-children, the children of his wife whom he had seen with Conyers, and ashed them if they wanted something to eat, and they said they did not, that they had had their dinner; he returned to his work, and as his wife did not return home, he started out to' see if he could find her early the next morning and went to the home of Conyers, and finally succeeded in getting him to come out of the house; the defendant says he asked where his wife was and Con-yers told him he did not know anything about his wife, that he had not seen her for three or four days, and the defendant then told Conyers that he had seen him driving with his wife the afternoon before near Garber; Con-yers told him he must be mistaken, and then told him that he could take care of his wife better than the defendant could, and a fight started.

The defendant claims that Conyers picked up a piece of pipe about 18 inches in length and struck him on the shoulder with it, and he knocked Conyers down, and as Conyers had the pipe in his hand he got his pistol and used the butt as a club and knocked Conyers down, and knocked the pipe out of his hand, and then pitched the pistol hack in the car and knocked Conyers down two or three times with his fists until Conyers said he had enough; that when the fighting ceased they went to the well and washed the blood off, the defendant pumping the water to wash the blood off of Conyers, and Conyers pumping the water for the defendant to wash the blood off. Prior to the time of the trial Conyers died, but the state does not claim, that the fight that the defendant had with the deceased had anything to do with his death, and the court so instructed the jury. There is no contradiction in the testimony that the fight took place as stated by the defendant.

The foregoing is, the substance of all the testimony.

The defendant assigns seven errors alleged to have been committed by the trial court. The third and fourth assignments are as follows:

“3. The verdict of the jury is contrary to> law.
“4. The verdict of the jury is contrary to' the evidence.”

The court in its instructions advised the jury that the defendant had a right to go to the home of Conyers to inquire about his wife, and that Conyers under the law was not warranted in assaulting the defendant, if the jury believed from the evidence that he struck defendant first.

The only question submitted to the jury by the court was the question of whether or not the evidence convinced the jury beyond a reasonable doubt of the defendant’s guilt of the crime charged in the information, of assault with a deadly weapon. The court also instructed the jury that if they failed to' be convinced beyond a reasonable doubt that the defendant was guilty of assault with a dangerous weapon, they would be warranted in considering the question as to the guilt or innocence of the defendant of assault and battery.

It is arguéd by the defendant, and with great force, that the defendant committed no crime when he engaged in a fight with Conyers, the party alleged to' have been assaulted, for the reason that the testimony of the defendant shows that Conyers struck the defendant first. It is clear from the testimony that the defendant did not malee an unlawful and felonious assault on Thomas H. Conyers with a dangerous weapon with intent to' do him great bodily harm, as the testimony discloses that the defendant had a pistol and if he had intended, as charged in the information, to assault Conyers with the purpose of doing' him great bodily harm, he had an opportunity to shoot him but did not do so or try to do- so.

There is no competent testimony to sustain a charge of assault with a dangerous weapon, but there is sufficient evidence to sustain a charge of assault and battery.

It is not difficult to understand how this defendant felt when he went to- the home of Conyers looking for his wife who had not returned home during the night, and had not accounted for her whereabouts after the defendant had seen her driving with Conyers the afternoon before the fight the next morning. Many men would have shot Conyers.

The punishment inflicted upon the defendant is excessive and should be modified. Under the authority granted this court by section 3204, O. S. 1931 (22 Okla. St. Ann. § 1066), the judgment of the trial court is modified from assault with a deadly weapon to assault and battery, and the punishment imposed is modified from one year in the county jail to 30 days in the county jail, and as modified the judgment is affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent, not participating.