author: PER CURIAM.

text:
    WALTER PHILPOT v. STATE.
    No. A-8953.
    Nov. 8, 1935.
    (50 Pac. [2d] 1150.)
    Prank W. Burkett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of robbery with firearms, and his punishment assessed at twenty-five years in the state penitentiary.

A copy of the record and case-made was filed in this court on the 8th day of July, 1985. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict.

The case is therefore affirmed.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    W. G. MARTIN v. STATE.
    No. A-8931.
    Nov. 8, 1935.
    (51 Pac. [2d] 584.)

      R. H. Brown, and C. A. Greenlees, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in ,the state penitentiary for a period of seven years.

The testimony on behalf of the state shows that the defendant was a resident, of Cotton county, on October 9, 1935; that he was cultivating a portion of a farm belonging to a man by the name of Telford, which was located in the south part of Stephens county, the west line of the farm being, the dividing line between Stephens and Cotton counties; the said farms being located about five miles northeast of where the defendant lived in Cotton county.

It is further shown that a man named Clark had entered into a contract with the defendant to cultivate the Telford farm of eight acres; that Clark was cultivating 20 acres and the defendant 60; a creek ran through the farm dividing the part Clark was to cultivate from the land the defendant was to cultivate; Clark was to have about an acre as a garden on the east side of the creek. It is further shown that in the summer of 1934 Clark got into some kind of trouble and was sent to the penitentiary; and the deceased, Ellis Nail, by and with the consent of the defendant, was occupying the house Clark had lived in on the Telford farm and was to look after Clark’s crop. On Saturday, October 6, 1934, Nail had cut for harvest a small portion of some kaffir corn on the west side of the creek; on the following Monday, the 8th of October, 1934, the defendant went to the farm and learned that a portion of the kaffir corn had been cut. It is admitted by the defendant when he went to the field to load the kaffir deceased had cut to haul it to the farm in Cotton county, he had his pistol with him.

It is further shown that on the 9th day of October, 1934, the defendant again went over to the farm, and on the west side of the creek, for the purpose, as he claims, of cutting some Johnson grass in which his landlord Tel-ford had an interest; he arrived at the place about 8:30 in the morning, again having his pistol buckled on his person under the bib of his overalls; shortly after he arrived at the farm, the deceased, Nail, came up to where the defendant and his two sons were getting ready to cut the grass with their mower, and after a few words passed as to the right of the deceased to the kaffir corn he had cut, which had been hauled away by the defendant, the deceased claiming the kaffir corn belonged to Clark and he had a right to cut it because it was Clark’s, the defendant denying that statement, claiming Clark never planted it, that it was volunteer kaffir corn, and that he had a right to take it, although it was over on the west side of the creek, on land the defendant testified Clark was to have; some angry words passed from the defendant to the deceased, and deceased hit the defendant in the face with a stick which he had in his hand; as claimed by the defendant, the blow staggered him back against the machine or team that was near the machine.

The only eyewitnesses to the shooting were two sons of the defendant. No' statement was made by the deceased as to how the trouble arose. In the trial of the case, the defendant testified that after deceased struck him with the stick he backed off a few steps, and he asked the deceased to stop and reason the matter out, and the deceased started to reach his hand in his overalls, and at the same time stating he would reason it out with his gun; the defendant claimed when deceased did this he pulled his gun from the scabbard under the bib of his overalls and shot at the deceased twice; one of the shots struck the deceased in the back, from which wound the deceased died about a week later.

Dr. James L. Patterson testified as a witness for the state that the deceased, Ellis Nail, was brought to his hospital in Duncan, on the 9th day of October, 1934, about 11:30 a. m. That the deceased was suffering from a gunshot wound that penetrated his right side and extended to the spinal cord and to the lung; it ranged slightly from the left to the right; that the deceased died later from the gunshot wound.

On cross-examination, the doctor stated that the bullet went just inside of the shoulder blade, through the spinal cord, severing the cord and on into the lung; the deceased lived about a week after be was brought to the hospital.

Earl Russell, sheriff of Stephens county, stated he went to the place where the trouble occurred, and found the defendant and asked him if he shot Nail, and defendant replied that he had; that the defendant was working on his mowing machine or around the mowing machine, and had a team to the machine; “the place where the defendant showed us the difficulty took place was north one-half a mile and east, maybe further than a quarter, right in the section line running east and west where there was a gate leading into the field; we asked the defendant if he had a gun on his person, and he hesitated a little before he told us where the gun was; he afterwards showed it to us in his wagon; it was in a scabbard at the time; the gun presented is the gun he showed us. The gun was full of shells when given to me. Defendant said he shot at Nail twice. The defendant’s two sons were with him when we drove up, ages 18 and 21; he showed us the stick he claimed the deceased hit him with before he shot the deceased; he showed us where the deceased was standing, when he made about six steps toward deceased, and as there was a tree the deceased went around the tree and he had to come out from behind the tree before he shot him. As shown us, the place was anywhere from four to six steps. There was quite a little gash and a little blood on the defendant Martin’s face when we got there; he said it was caused from the deceased Nail hitting him with the stick.”

The record further shows that shortly after the deceased, Nail, died, the defendant made a statement to the county attorney, in the presence of the sheriff, an under-sheriff and a deputy, which statement was taken down by the stenographer in the county attorney’s office.

In this statement no mention is made about the deceased reaching into his overalls as though to use a gun. The defendant said the deceased stated when he started to leave he would get his gun and come back and kill the whole bunch, and that thereupon he shot the deceased. The wife of the deceased testified that the deceased did not own a pistol, and never had carried one, and had no gun on him the day he was killed.

The defendant and his two sons testified in substance to the same facts, each contending that after the deceased struck the defendant with a stick he stated he would get his gun and kill the whole damned outfit, and ran his hand in his bib overalls, and then the defendant began firing.

The statement given by the defendant shortly after the death of the deceased is very different and contradictory to the testimony given by the defendant on the witness stand in his own behalf, and by his sons, who testified in court-. The physical facts showing where the bullet took effect in deceased’s body contradicted the statements of both defendant and his sons as to what the deceased was doing at the time the shot was fired. The record shows that after the deceased was shot and fell in the edge of the section line the defendant and one of his boys picked him up and put him in the wagon preparatory to taking him to a doctor; that deceased asked the defendant and his boys if they were going to take care of him, and they told him they were; about that time some gentlemen drove up in a car, and the defendant or the deceased, or both of them, asked them to take him to the doctor, which they did.

The record further shows that defendant went on with his hay cutting without reporting to the sheriff or going with the deceased to see whether or not he was being properly cared for. The foregoing is in substance the testimony of both the state and the defendant as’ to the circumstances leading up to the shooting, and at the time of the shooting, and up until the time he was arrested by the officers where the difficulty occurred.

The defendant in his petition has assigned ten errors alleged to have been committed by the trial court, which he insists are sufficient to warrant a reversal, and has grouped together in one proposition his first, second, third, and fourth assignments of error, which are as follows:

“1st. Error of law occurring at the trial.
“2nd. Error of the court in admitting testimony on behalf of the state, defendant in error, that was incompetent, irrelevant, immaterial and highly prejudicial to the rights of the plaintiff in error.
“3rd. The court erred in thereafter permitting the county attorney in the presence of the court and jury, in the trial of said cause, to hold said written statement in his hand and to cross-examine plaintiff in error, and asking plaintiff in error, if at the time he made the purported statement certain questions were not asked him, and certain answers made by him.”

The defendant insists that the court erred in permitting the county attorney, over his objections, to inquire of the defendant on cross-examination, while the defendant was testifying in his own behalf, and to ask him when he made the statement in the county attorney’s office shortly after the death of the deceased if he did not make certain statements as to what took place at the time of the difficulty, and the defendant urges that the action of the county attorney by permission of the court in asking the questions with reference to the statements made by the defendant in the county attorney’s office shortly after the death of the deceased was prejudicial to his rights and was sufficient to warrant this court in reversing his case. Citing in support of Ms contention, Foster v. State, 8 Okla. Cr. 139, 126 Pac. 835.

After a careful examination of the case cited by the defendant, we fail to find that the issues in the case cited are similar to the issues in the case cited are similar to the issues in the case we are considering. The question there was a question of the admission of certain records in another proceeding, which involved the question of the custody of an infant child, about which the controversy there arose.

In this case the defendant was on the witness stand testifying in his own behalf, and on cross-examination was asked by the state if at a certain time he did not make a statement in the county attorney’s office, which was taken by a stenographer, although the questions and , answers written out had not been signed by the defendant. The inquiry as to the statements made to the county attorney, in his office shortly after the death of the deceased, was made for the purpose of impeaching the statements of the defendant made while on the witness stand in his own behalf. When the defendant takes the witness stand in his own behalf, he thereby subjects himself to the same rules respecting cross-examination as applied to any other witness, and may therefore be cross-examined, and be discredited or impeached in the same manner as other witnesses may be discredited or impeached. Richards v. State, 12 Okla. Cr. 224, 154 Pac. 72; McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256; Queen v. State, 23 Okla. Cr. 146, 147, 212 Pac. 1021; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162.

The fact that the questions propounded by the county attorney to the defendant while on the witness stand may be embarrassing to him do not entitle him to a reversal where such questions are material to the issue.

In Cody v. State, 23 Okla. Cr. 236, 214 Pac. 201, this court held:

“Where a witness is sought to he impeached by showing that the testimony given by him at the final trial is in conflict with that given at the preliminary or some other trial, the attention of the witness must be called to the particular facts concerning which a discrepancy is sought to be shown. Under such circumstances it is not error for the court to refuse to permit the introduction of the entire testimony of the witness given at the preliminary trial.” La Coss v. State, 25 Okla. Cr. 130, 219 Pac. 416; Morris v. State, 30 Okla, Cr. 382, 236 Pac. 443.

In Crain v. State, 24 Okla. Cr. 343, 217 Pac. 888, this court held:

“Where an attempt is made to impeach a witness * * * by showing that at another time he made a different or conflicting statement as to the circumstances of an affray, some foundation should be laid for the introduction of such impeaching testimony, specifically calling his attention to such discrepancies in order to afford the witness an opportunity to explain or deny the impeaching testimony.”

The defendant knew better than any one what statements he had made to the county attorney, and he had a perfect right to explain that testimony, if he could consistently with his innocence. The county attorney only attempted to cross-examine the defendant upon inconsistent statements, which statements related to the issue of self-defense, an important ground relied upon by the defendant for an acquittal. His entire defense rested upon the truthfulness as to what he said relative to the issue of self-defense.

In Flohr v. Territory of Oklahoma, 14 Okla. 477, 78 Pac. 565, 572, the Supreme Court of the Territory said:

“Upon the trial of the case a witness by the name of Hawkes was called by the territory. It appears from the record that the witness was á stenographer, and had taken the testimony in the case of Kansas v. Richards and Richards, at Wichita, Kan., in the trial of which case the defendants, Charles Flohr and Emma Flohr, were witnesses. The witness Hawkes, when placed on the witness stand, testified to certain questions propounded to Flohr in the trial at Wichita, and the answers given by him thereto. This testimony was offered for the purpose of impeachment, and upon cross-examination he was asked if he had his shorthand notes taken at the trial, and answered that he had. He was then asked to read from the notes the balance of the testimony given by Charles Flohr and Emma Flohr at that trial, other than that he had already given. The question was objected to on the part of the territory, and the objection was sustained. We think the ruling of the court was correct in this respect. This offer was too general.”

This court holds that the county attorney was within the bounds of legitimate cross-examination in conducting the same as he has in this case; no contention being made by the defendant or his counsel that the statement which he made to the county attorney on the 18th day of October, 1934, was an involuntary statement.

It is further contended by the defendant that his motion made before the commencement of the trial by requiring the county attorney to furnish him a copy of the statement made by the defendant, in the presence of the county attorney and others, on October 18, 1934, should have been sustained by the court. This contention is without merit. The memorandum statement made by the defendant in the county attorney’s office was not offered in its entirety, and the only questions propounded by the county attorney were for the purpose of impeaching him and showing that he made statements outside of the court different to what he was testifying to in the trial. To sustain his position, the defendant cites section 318, O. S. 1931, which is a provision of the Civil Code, and has no application to the question herein urged and insisted upon by the defendant. By no interpretation can it be made to apply to the questions involved here. The record fails to show that the county attorney attempted to introduce the statement as evidence against the defendant, and only cross-examined the defendant as to certain questions and answers given by him contradictory to his testimony given at the trial.

The third proposition of the defendant is included in his second proposition with reference to the statement made by the defendant in the county attorney’s office shortly after the death of the deceased. The fact that the county attorney held the statement in his hand during the argument in no way whatever prejudiced the rights of the defendant. Further, this court has repeatedly held that objections to the argument of the county attorney complained of by the defendant will not be considered unless they are included in the recitals made by the trial judge, and unless they also set out the language used by the county attorney and show that the same was excepted to at the time. Gaines v. State, 18 Okla. Cr. 525, 196 Pac. 719; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

It is next urged by the defendant that the case should be reversed and the judgment set aside for the reason that the jury separated before the final submission of the case. It is not disputed that on the first day of the trial, after the jury was impaneled and sworn and placed in charge of two bailiffs, that the jury separated, one part of the jury being under the direct supervision of one bailiff, and another part of the jury under the direct supervision of the other bailiff.

It is further shown that the trial court learned of this separation after the verdict had been returned, and immediately examined each juror in open court as to whether anything had occurred which in any way tainted the verdict, and each of the jurors testified they had talked to no one about the case, and had violated none of the admonitions of the court with respect to the case except the mere fact of separation. This court has held upon the question of the separation of the jury before the final submission of the case that the burden is on the defendant to show prejudice, but if the separation is after final submission the burden is on the state to show that no prejudice in fact resulted. Hile v. State, 54 Okla. Cr. 137, 15 Pac. (2d) 1049.

The record has been carefully examined and studied, and we hold that the evidence is sufficient to sustain the verdict and judgment; that the defendant was accorded a fair and impartial trial; that the court properly instructed the jury as to the law applicable to the facts; and that there are no errors in the record warranting a reversal. The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: DOYLE, J.

text:
      G. W. DONAHO v. STATE.
    No. A-8895.
    Nov. 8, 1935.
    (51 Pac. [2d] 348.)

      Sam J. Goodwin and Haskell Paul, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the ¡State.
   DOYLE, J.

Plaintiff in error, G. W. Donaho, herein referred to as the defendant, prosecutes this appeal to reverse a judgment of conviction and sentence entered in accordance with the verdict, fixing his punishment at imprisonment in the penitentiary for the term of one year and one day, under an information in the usual form charging, him with having in Garvin county on August 24, 1934, feloniously stolen, taken, and carried away about 600 pounds of loose broom com, of the value of $60, the personal property of Lige Moseley.

Error is assigned on alleged misconduct on the part of the prosecuting attorneys in their arguments to the jury, and that the verdict is contrary to the law and the evidence.

It appears from the evidence that the prosecuting witness Moseley lives eleven miles south of Lindsay. On Tuesday he had some broom corn threshed and placed in Jim Crawford’s shed. The following Friday he left home. Returning the next day, Jim Crawford said some of his broom corn had been taken. He called the sheriff that evening, and Sunday morning with Jim Crawford drove along the highway finding a few heads of broom corn, after going five or six miles the sheriff joined them. When they reached the home of the defendant, they passed on but could not find any more broom corn. Returning to the defendant’s place, there Moseley identified his broom corn in the defendant’s shed. They took this broom corn against the will and without the consent of the defendant, and hauled it back to Moseley’s place.

The prosecuting witness positively identified the loose broom corn taken from the defendant’s shed as his property. On cross-examination he stated that more than one hundred tons of broom corn had been hauled over that road, but he knew each stalk picked up along the road was his broom corn.

Jim Crawford testified: That he threshed broom com for Mr. Moseley, and put it in his shed, altogether seven or eight tons. That he missed part of the corn on Saturday, and the next morning went with Mr. Moseley to find the stolen corn; that they picked up broom corn along the road, and the last found was about 50 yards from the defendant’s shed. That the sheriff was with them the last five or six miles, and they returned to the defendant’s place, and Mr. Moseley claimed a part of the broom corn stacked up on baled broom corn in the defendant’s shed as his property, and they hauled it away. That it weighed 423’ pounds and was worth 10 cents a pound. That the other broom corn in the defendant’s shed appeared to be dry; that he believed it was Moseley’s broom corn that they found. On cross-examination he stated:

“I don’t know whose broom corn it was.’’

L. W. Barnhill, sheriff, testified: That the com taken from the defendant’s shed was the same kind of corn- they had been picking np along the road. That Mr. Moseley identified it as his corn; they took possession of it; brought it back to Moseley’s place. That one stall.in the defendant’s shed was full of baled corn and there was about 150 pounds of corn in the shed dry and ready to bale. That the defendant, Donaho, claimed all the corn in the shed was his broom corn.

There was a demurrer to the evidence and motion for directed verdict, which were overruled.

On the part of the defendant, ten witnesses testified.

Eobert Weeks testified that he was a farmer living near Antioch; had been working for the defendant two or three months; was present when the sheriff and two or three men came there; that he helped to cut and haul the broom corn in the defendant’s shed, and the corn the sheriff and'the other men took away was part of the corn that he had cut and hauled from the field to the shed.

Carroll Holley testified: That he was a farmer, and lived near neighbor to Mr. Donaho. Had been helping the defendant for several weeks to harvest his broom com crop, four or five cuttings. That while they were baling corn that week, it rained, and the loose broom corn was spread out, so that it wouldn’t heat.

E. S. Eawson testified that he worked for the defendant’s son; was present when the sheriff and other men came there; and he had helped to bale broom corn on the Friday before, when it rained, and the loose broom corn was placed in the shed.

Bob Cascar testified that he lives on a farm near Lindsay; threshed broom com five or six times this year, for the defendant; was there when the sheriff came; that lie had been raising broom corn for twenty years; that he did not know of any way to distinguish a difference between corn of like grades.

Several of the witnesses testified that they knew the general reputation of the defendant, Donaho, in that community, as to being an honest, law-abiding, truthful citizen, and that his reputation was good.

W. R. Donaho, a son of defendant, testified that he was a farmer, living nearby his father; that he had about six cuttings of broom corn this season, and kept part of his broom corn in his father’s shed; that he had helped to bale about seventy-five bales for his father; that none of witness’s corn was in the shed when the sheriff was there.

As a witness in his own behalf, the defendant, Dona-ho, testified: That his age was 56 years, had been farming 35 years, raising corn, cotton, and broom com. That he had 35 acres of broom corn this season, which he began to harvest about August 1st. That he had been raising broom corn for about 15 years, mostly Spanish corn of different grades. That when the sheriff came there, he said: “Moseley has lost some corn, and he claims he found it in your shed.” They went to the shed, and he told the sheriff: “All the broom corn in that shed is my corn. It came out of my field, here on my farm.” That the corn the sheriff took was rained on, and had been spread out to dry. That he did not go over to Mr. Moseley’s or Mr. Crawford’s at any time to get broom corn to put in his shed. That they took away he would judge 250 or 300 pounds of his loose broom corn.

It is duly certified in the bill of exceptions that:

“Be it remembered that on the 27th day of September, 1934, arguments were made to the jury duly impaneled by the county attorney of Garvin county, Olda., and Harold Freeman, special prosecutor for the state, and by Sam J. Goodwin, attorney for the defendant, and that in said arguments, county attorney referred to the defendant as being a cunning thief who stole only such things as were hard to identify and that he had been a thief all his life and that he had known the defendant for the past twenty years and that he had always been a thief.
“That the county attorney and the special prosecutor for the state of Oklahoma, in their arguments to the jury, called particular jurors by their names in an intimate manner and referred to G. W. Donaho as a robber and a thief and stated that if the jury had any backbone or respect for the county attorney and the laws of the state of Oklahoma that they would return a verdict of ‘guilty’; and that they should do their duty as they would want it done had it been their property that this defendant had stolen and robbed instead of the prosecuting, witness.
“To which remarks the defendant, G. W. Donaho, excepted and demanded that the court reporter be called for the purpose of making a record of the same as said remarks were inflammatory and prejudicial to the rights of said defendant, which demand was refused by the district judge and exceptions were allowed.
“That the special prosecutor in his argument to the jury referred to G. W. Donaho as a thief who would not steal locomotives, horses or automobiles, but only such things as would be hard to identify, if not impossible to identify, and. that he had been doing so all his life.
“To which remarks the defendant, G. W. Donalm excepted and demanded that the court reporter be called for the purpose of taking down and making a record thereof, which demand was refused by the district judge and exceptions were allowed.
“W. G. Long, District Judge.”

Under section 3821, St. 1931, when timely request is made the court should direct the court reporter to take the argument of counsel. Smith v. State, 34 Okla. Cr. 318, 246 Pac. 883.

While prosecuting attorneys are not expected to maintain a judicial impartiality, yet it is their duty to present a case fairly and justly. Obviously the remarks of the prosecuting attorneys in this case were highly improper as statements of facts not in evidence before the jury, and the court erred in overruling the objections thereto. Thurmond v. State, 57 Okla. Cr. 388, 48 Pac. (2d) 845.

The defendant in the trial of the case put his character in issue, and the testimony showng that he bore .a good reputation as a law-abiding citizen was not controverted, if we except the improper remarks made by the county attorney and the private prosecutor, in their arguments to the jury.

It appears from the record the defendant had lived in that community for many years, and that he had never before been charged with crime.

Considering the doubtful character of the testimony introduced against the defendant, we are of opinion that the improper remarks of the prosecuting attorneys in their arguments to the jury, and the erroneous rulings of the court thereon, probably determined the verdict.

It follows that the judgment should be, and the same is, hereby reversed.

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


author: EDWARDS, J.

text:
    EMMETT K. SHELLER v. STATE.
    No. A-8944.
    Nov. 15, 1935.
    (52 Pac. [2d] 105.)

      W. W. ¡Sutton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, on his plea of guilty, was convicted in the district court of Kay county of forgery in the second degree and was sentenced to serve a term of two* years in the state penitentiary.

Defendant was informed against for passing a forged check in the sum of $2,000 to the First National Bank, Blackwell, knowing the same to be false and forged. The record discloses a preliminary complaint was filed with the county judge as a magistrate, that defendant waived preliminary hearing, and the magistrate indorsed on the complaint his finding that the offense named therein had been committed and there was reasonable cause to believe the within-named defendant guilty thereof and ordered him held to- the district court and his bond was fixed at $2,000. This complaint, with order indorsed thereon, was duly transmitted to and filed in the district court December 3, 1932. The finding and order contains a recital that defendant “waives preliminary,” but this statement appears to have been written on the wrong line in the blank on the back of the complaint. This is so obvious there can be no question about the fact. Thereafter, on the same date the county attorney filed information. Defendant, represented by his attorney, S. H. King, was arraigned in district court and entered his plea of not guilty. The district court fixed bail in the sum of $1,500. On the application of defendant, five continuances were thereafter taken. Three of the applications were made by his attorney and two were made by defendant in person. The case finally came on for trial in April, 1935, at which time W. W. Sutton appeared as attorney for defendant. He asked leave of court to withdraw the plea of not guilty, and the court inquired the purpose and was informed defendant desired to demur to the information and to the jurisdiction of the court and to move the court to quash the information and to discharge defendant. Attached to the application to withdraw plea was a demurrer, stating in substance that the transcript of the proceedings of the preliminary was not sufficient to confer jurisdiction on the district court. Then it follows the usual form of a demurrer, that the information did not state facts sufficient to constitute a public offense and did not substantially conform to the statutes and that more than one offense was charged. This application being denied, defendant’s counsel asked leave to withdraw plea of not guilty and to enter a plea of guilty, which the court granted. The plea of guilty was entered, and the court sentenced defendant to a term of two years in the penitentiary.

The principal argument made is that the court did not acquire jurisdiction of the case because of insufficiency of the transcript of the committing magistrate. Defendant contends there is no sufficient showing that defendant waived a preliminary hearing, nor that there had been a judicial determination by the magistrate that a felony had been committed and there was probable cause to believe defendant committed it; that the magistrate did not return to the district court the transcript or record of the proceedings as required by section 2806 et seq., Okla, Stat. 1931; that this was jurisdictional and could not be waived.

We are clearly of the opinion this contention is not supported by the record, and that the return of the complaint, with the indorsement as hereinbefore stated, constitutes a transcript showing waiver of preliminary hearing and a sufficient judicial finding of probable cause by the magistrate. If this order and record of waiver had been challenged before plea, the district court could, and po doubt would, have required it to have been supplemented, but defendant did not challenge it until almost three years later and after five continuances had been entered on his application.

It is held, by many decisions of this court that a challenge to the information for want of preliminary must be made on that ground by a motion to set aside or quash the information and that such objection is waived by entering a plea on the merits before filing motion. Anderson v. State, 21 Okla. Cr. 177, 201 Pac. 132; Cooper v. State, 31 Okla. Cr. 217, 238 Pac. 503; Neff v. State, 39 Okla. Cr. 133, 261 Pac. 619. In Ex parte Robinson, 56 Okla. Cr. 101, 11 Pac. (2d) 127, 129, it is held:

“It is well settled that an information charging a felony need not allege that an accused has had a preliminary examination or has waived it. Wines v. State, 7 Okla. Cr. 150, 121 Pac. 168; Robbins v. State, 12 Okla. Cr. 291, 155 Pac. 191; Browning v. State [31 Okla. Cr. 373, 239 Pac. 272], supra; Stamper v. State, 25 Okla. Cr. 321, 220 Pac. 67. The manner of challenging jurisdiction because no preliminary examination was had is by motion to quash or set aside the information. The applicable statutes are, sections 2937, 2910, 2911, 2912, Okla. St. 1931. See, also, Quinton v. State, 10 Okla. Cr. 520, 139 Pac. 705; Robbins v. State, supra.
“A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.”

It is also well settled that after a plea to the information on the merits has been entered, it is discretionary with the trial court whether or not he will permit the plea to.be withdrawn for the purpose of filing a motion to quash or set aside. Ex parte Robinson, supra, and authorities cited.

For the reasons assigned, the case is affirmed.

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


author: DAVENPOBT, P. J.

text:
    In re T. B. JOHNSON.
    No. A-9018.
    Nov. 15, 1935.
    (52 Pac. [2d] 107.)
    Mathers & Mathers, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPOBT, P. J.

This is a proceeding for a writ of habeas corpus in which the petitioner alleges he is restrained of his liberty, and is unlawfully imprisoned at McAlester, Okla., by Boy W. Kenny, warden of the state penitentiary of the state of Oklahoma; that the cause of said restraint according to the best knowledge and belief of the petitioner is, petitioner was convicted in the district court of Canadian county, Okla., of the crime of burglary, and sentenced to said penitentiary for a period of five years, and to pay the costs of said prosecution in the sum of $302. In default of the payment of said costs he was to pay the same by confinement in the state penitentiary at the rate of $1 per day until the amount was paid.

Petitioner alleges he completed his term of imprisonment on the 11th day of October, 1935, and since said time and is now being held illegally, and imprisoned by the said Avarden in default of the payment of said costs. Petitioner further alleges that said warden has no authority to hold him in the penitentiary for the payment of the costs, and that his restraint on account of not being able to pay the said costs is illegal and unauthorized.

To t'liis petition the warden of the state penitentiary filed a response in which he admits that the petitioner was committed to the state penitentiary on the 28th day of December, 1932, pursuant to three commitments, and on three separate judgments rendered in the district court of Canadian county, in the month of December, 1932; that the first judgment was rendered on the 3d day of December, 1932, and provided that the defendant be confined in the state penitentiary at McAlester, Olda., for a term of five years, and that he pay the cost of the prosecution taxed at |302, and the probable cost of executing the judgment and sentence, in the sum of $18, for which execution was aAvarded, and if such costs Avere not paid to be served at the rate of $1 per day.

Respondent further states this judgment was rendered in cause No. 2137, in the district court of Canadian county; that a second and third judgment against the defendant upon .Avhich commitments were issued Avere rendered in causes Nos. 2138 and 2139, in the district court of Canadian county, on the 24th day of December, 1932, some three weeks after the judgment in No. 2137 had been rendered, and by a different district judge than the one pronouncing judgment in No. 2137.

Respondent further states that the sentences in the second and third judgment provided that said judgments run concurrently Avith cause No. 2137, the first of the three judgments rendered against petitioner. Respondent further states that while it was in the power of the court to make the judgments in causes Nos. 2138 and 2139 run concurrently with each other, that it was not within the power of the said court to make said judgments run concurrently with the judgment in cause No. 2137, because the said judgment in No. 2137 had been pronounced three weeks before the judgments in the other two causes were pronounced.

The respondent further submits that this petitioner has not served the full term of imprisonment as required by the aforesaid judgments construed in the light of decisions by this court relative'to when judgments may be made to run concurrently. Eespondent further states that the judgment in No. 2137, allowing credit for good time and work time expired on the 18th day of September, 1935, but he submits this petitioner is not entitled to be discharged until he has served the additional time of five years required in cases Nos. 2138 and 2139, as above indicated, and asks that the writ be denied.

The respondent attaches a copy of each of the three judgments to his response showing the day and dates of the sentences and the imprisonment imposed.

Section 3144, O. S. 1931, is as follows:

“If the defendant have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

Section 3145, O. S. 1931, is as follows:

“When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

It is disclosed by the pleadings that the petitioner was sentenced in No. 2137, on the 3d day of December, 1932, and was sentenced in Nos. 2138 and 2139, on the 24th day of December, 1932, more than three weeks after his sentence was imposed in No. 2137. Therefore, the district court was without jurisdiction when it imposed a sentence on the petitioner in Nos. 2138 and 2139, and ordered the sentence to run concurrently with the sentence in No. 2137. Under the provisions of our statute, and the decisions of this court, it is only where a party has been convicted of two. or more crimes and has not been sentenced that the court may provide that the sentences in the cases run concurrently. Ex parte Strader, 37 Okla. Cr. 285, 257 Pac. 1112; Ex parte Halbert, 45 Okla. Cr. 167, 282 Pac. 478; Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893.

The sentence in No. 2137 has been fully served, and the petitioner is now serving, on the concurrent sentences of five years in No. 2138 and No. 2139, and has been since the 18th day of September, 1935, and is not entitled to be discharged until he has served the additional time as provided in the sentences in Nos. 2138 and 2139.

The petitioner has. failed to' show he is entitled to. the relief prayed for. The writ is denied.

EDWARDS and DOYLE, JJ., concur.


text:
    J. W. (ROOSTER) ROBINSON v. STATE.
    No. A-8890.
    Nov. 15, 1935.
    (52 Pac. [2d] 100.)
    Wells, Greer & Wells, for plaintiff in error.
    •Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of murder, and his punishment fixed at life imprisonment.

The evidence on behalf of the state shows that J. C. Duncan had invited a number of friends to his house for a dance on the 1st of December, 1933; about 12:30 a. m. they had ceased dancing and were getting ready to leave.

Cecil Anders, testifying for the state, stated: Deceased wanted change for a dollar in order to pay Euel Sharp 25 cents; the defendant made change for him, and asked the deceased what the quarter was for, and deceased remarked that it was none of bis damn business. Anders further stated:

“When the difficulty occurred I saw a knife in the defendant’s hand; Robinson struck at the deceased; I saw deceased bleeding up near his left shoulder; I got up and went out of the house and did not see the deceased any more before he died.”

Euel Sharp, testifying for the state, stated:

“I was at the dance at J. C. Duncan’s residence the night Duncan was killed; I saw the trouble between the deceased and defendant Robinson; it happened between 12 and 1 o’clock; after the dance closed the people were getting their coats to go home; Mr. Duncan owed me a quarter and I asked him- if he had the change, and he told me he did not; Red King called Rooster Robinson and asked him if he had change for a dollar; Robinson said he did and asked Duncan what the quarter was for, and Duncan said, it’s none of your damn business; I did not hear what Robinson said in reply, but saw him strike Duncan and saw blood on Duncan after the lick.”

Thomas Harjo, testifying for the state, stated:

“I saw the trouble between the defendant Robinson and the deceased Duncan; Robinson and Duncan had a fight and Robinson stabbed Duncan with a knife; I don’t know how the fight started; I only saw Robinson strike one time.”

Other witnesses testified to seeing the defendant strike the deceased. All of the state witnesses claim they saw a knife in his hand.

The defendant, testifying in his own behalf, stated: He and the deceased had taken one or more drinks of whisky that night.

“After the dance broke up I was in the room with the •deceased and the question of change came up; I got into some trouble with Duncan, Duncan hit me on the side of the head, it seems like there was something in his fist, it staggered me back a little bit; I did not stab the deceased, but the deceased had a knife in his hand and struck at me with it and cut my wrist.”

The defendant is the only one who testified the deceased had anything in his hand or struck at the defendant. All of the witnesses who were present in the room, as shown by the record, testified that when the deceased answered the question of the defendant as to what he wanted the quarter for, and told him it was “none of his damn business,” that the defendant drew his knife and struck the deceased — from the effects of the wound J. C. Duncan died.

The defendant has assigned several errors alleged to have been committed, but in his brief defendant states:

“There are a number of assignments of errors introduced in the motion for new trial, and also in the petition in error. However, we think the tenth assignment of error is the only one of merit in this case. We therefore will discuss this assignment of error in the light of the evidence and the law as we see it.”

It is urged for the defendant that where one is charged with murder, it is the duty of the court to submit to the jury for its consideration every degree of homicide which, the evidence in any reasonable view of it is suggested, and if the evidence of it tends to prove different degrees the law of each degree which the evidence tends to- prove should be submitted to the jury, whether it be requested on the part of the defendant or not.

The defendant further urges that it is the duty of the court to instruct on manslaughter if there is any evidence that the alleged crime might have been done under circumstances that might reduce it from murder to manslaughter; citing in support of bis contention the following: Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387; James v. State, 14 Okla. Cr. 204, 169 Pac. 1127; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879; Sherman v. State, 20 Okla. Cr. 306, 202 Pac. 521.

The holding of the court in the authorities cited by the defendant is the correct law when the facts in the record are sufficient to show that there might be different degrees of crime included in the charge of murder. In this case, the trial judge was of the opinion, and we think properly so, that, in view of the testimony of the defendant denying the possession of the knife or the infliction of the fatal wound that caused the death of the deceased, the defendant had precluded any instruction on any degree of felonious homicide other than that of murder.

Sections 2217 and 3076, O. S. 1931, are as follows:

“2217. A design to1 effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.”
“3076. Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Section 3079, O. S. 1931, is as follows:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. ' Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”

It will be seen from section 3079, supra, that the trial court is only required to give such instructions to the jury as he thinks sufficient to cover the law of the case, and in this case it appears that the trial court held that there was not sufficient evidence to warrant the court in instructing the jury as to manslaughter in the first or second degree.

It is the duty of the defendant, if he thinks the instructions given by the court are not sufficient to cover the issues in the case, to present to the court instructions in writing, and request that the court give them. No written instructions were presented to the court by the defendant; but the defendant dictated into the record a request for an instruction on manslaughter. Under the law of this state, the court should instruct on every degree of felonious homicide where there is some competent or reasonable evidence to support the instruction. When the defendant who has the right of election as to several defenses takes the witness stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one. Panther v. State, 43 Okla. Cr. 128, 277 Pac. 247; Young v. State, 48 Okla. Cr. 443, 292 Pac. 867.

The evidence in this case on the part of the state, if believed, proved the defendant guilty of murder. There is no evidence on behalf of the state that tends to reduce the degree of homicide to manslaughter, and the defendant made no effort to justify or excuse the killing; in fact, lie denied having killed the deceased. The issues presented in this case are clear cut and permit no middle ground; either the defendant killed the deceased in the manner testified to by the state witnesses, or the deceased met his death by his own hand, without any fault on the part of the defendant. The testimony is clear that the defendant, without any justification other than the remark of the deceased in reply to the question of the defendant as to what he was going to do with the quarter, and deceased’s reply that it was none of his damn business, the defendant then struck the fatal blow.

The contention of the defendant that the court erred in not giving the instruction upon manslaughter is without merit when the facts in this case are carefully considered..

In Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124, this court, in the third paragraph of the syllabus, stated:

“The refusal to give manslaughter instructions in a prosecution for murder is not error, if there is no evidence tending to reduce the degree of the crime from murder to manslaughter in either degree.”

This court has many times held that the instructions must be applicable to the evidence, and that the trial court is not compelled to give instructions, although correctly stating the law, unless the evidence reasonably supports such requested instructions. Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142; Ford v. State, 52 Okla. Cr. 321, 5 Pac. (2d) 170.

After a careful consideration of the evidence and circumstances, and the law applicable to the facts as given by the court to the jury, we hold that the court did not err in refusing to instruct the jury on the question of manslaughter as urged by the defendant.

The defendant was accorded a fair and impartial trial. The jury was properly instructed as to the law applicable to the facts. There are no errors in the record warranting a reversal. The judgment is affirmed.

EDWAEDS and DOYLE, JJ., concur.


author: DAVENPOET, P. J. EDWARDS, J.

text:
    MAE PICKLESIMER v. STATE.
    No. A-8894.
    Nov. 8, 1935.
    Dissenting Opinion Nov. 21, 1935.
    (51 Pac. [2d] 824.)
    E. G. MeComas and E. N. Linville, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOET, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was tried on an information charging her with possession of intoxicating liquor, and the jury returned the following verdict, omitting the caption and signature of the foreman: “We the jury empaneled and sworn to try the issues in the above entitled case do upon our oath find the defendant, Mae Picklesimer, guilty, and fix her punishment at $50 fine, 30 days in jail.”

From the verdict returned, you cannot tell whether the jury intended to convict her on a charge of possession alleged in the information, or what they found the defendant guilty of. The court must presume the jury’s verdict related to the charge of possession upon which she was tried.

Before the trial began a motion was filed to suppress the evidence the state had against the defendant, on the ground that it was obtained by an illegal search and seizure. The motion was overruled, and defendant excepted. The record discloses the affidavit for the search warrant was made by W. T. Velvin, sheriff of Beckham county. The testimony on behalf of the state showed that two officers went to the house in which the defendant was living, on the 13th or 14th of November, 1934, and searched the same and found about a gallon of whisky. When the officers went to the house, two women and two men were in the house. The proof discloses that the defendant had rented the house on the 9th day of November, 193'4, just preceding the search that was made on or about the 13th of the month.

The defendant denies she had anything to do with the whisky or that she had possession or control of the same. W. T. Velvin, the party who made the affidavit for the search warrant, was called by the state to show that the whisky found in the search was turned over to him as sheriff of the county. In the affidavit made by Mr. Velvin for the search warrant, the sheriff states that he had observed this place for the past week and saw cars coining in and going out at all hours of the day and night; some of the occupants were intoxicated and some had what appeared to be bottles in their pockets. When the sheriff who made the affidavit was called by the state, and the defendant had an opportunity to cross-examine him, he was asked the following questions:

“Q. Bill, you wasn’t there when the search was made? A. No. I wasn’t. Q. You signed the complaint? (Objection was made by the state and sustained by the court, and exceptions saved by the defendant.)”

The defendant then offered to show that the witness on the stand was the party who signed the affidavit or complaint upon which the search warrant was based; that the name of John Doe or party unknown is the statement in the search warrant, and in the affidavit he says he has observed this place for the past week, and saw cars coming in and going out at all hours of the day and night, some of the occupants appeared to be intoxicated, and some had bottles in their pockets; that the witness W. T. Velvin lives at Sayre, and was not in the vicinity of said house, and that the defendant was not an occupant of said house for a week prior to the date of the making of the affidavit, having just rented it, and that she Avished to show by the witness he did not know who occupied the house, and could not learn who occupied the house the week prior to the date of the affidavit, and did not know who was coming and going to the house for the reason that she had not yet moved into the premises occupied by the other parties. This offer Avas rejected, and the defendant saved an exception.

The defendant has assigned several errors alleged to have been committed in the trial of her case. The first assignment is that tbe court erred in overruling tbe motion of plaintiff in error for a new trial. Tbis assignment covers all tbe errors relied upon by tbe defendant for a reversal.

Tbe defendant in ber argument insists that tbe court committed reversible error in refusing to permit the witness W. T. Yelvin to answer the question as to whether or not be bad made tbe affidavit to tbe complaint upon which tbe search warrant was issued to search tbe bouse in which tbe defendant ivas living at the time the search was made.

Tbe testimony shows that tbe home of the witness W. T. Velvin was at .Sayre and not in Elk City; that the home of tbe defendant that was searched was in Elk City. Tbe record further shows that the defendant had been occupying the house searched for only four days, and had not been occupying it a week, notwithstanding the witness W. T. Velvin, who made the affidavit for the search warrant, states in the affidavit he had been watching the premises of the defendant for a week and had seen parties going and coming at all times of the day and night, some appearing to be intoxicated, and others leaving with what appeared to be bottles.

The defendant was entitled to have the question answered for the purpose of showing the interest of the witness in the case, and the court, in refusing to permit the question to be answered, committed reversible error. Courts of this country are established for the purpose of dealing out justice and guaranteeing to all of its citizens a fair and impartial trial. The defendant may be guilty. It matters not how guilty she may be, she is entitled to a fair and impartial trial, and when it is shown that officers of the law have made statements for the purpose of securing a search warrant that are not borne out by the record, and under the facts shown by the record are not true, it is the duty of the court to permit the jury to pass on the facts.

For the reason stated, the case is reversed, with directions to grant a new trial.

DOYLE, J., concurs.

EDWARDS, J.

(dissenting). I am not able to agree with the majority opinion. The defendant was convicted of having unlawful possession of intoxicating liquor. The ease is reversed for the sole reason that the sheriff on cross-examination was not permitted to answer the question if he had signed the complaint for search warrant. How this question was material before the jury is more than I can see. If it be said-, that it would show the interest of the witness, surely it may be assumed that the sheriff has an interest in the enforcement of the liquor law, and if the exclusion of his answer was error, it would be harmless under section 3206, Okla. Stat. 1931, which reads:

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

There are more than one hundred opinions of this court in which this statute has been upheld and approved.

The majority opinion discusses the truth of the affidavit for search warrant; in many cases this court has said that the truth of an affidavit for a search warrant is not an issue in the trial of the case in which evidence obtained by it is offered. Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, 452; Blair v. State, 55 Okla. Cr. 280, 29 Pac. (2d) 998. In the Phillips Case we said:

“The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

The defendant was the only witness in her behalf. Her testimony is evasive and shows her to be guilty; she admitted she had pleaded guilty to three charges in the county court.

For these reasons, I dissent.


text:
    DEE HIGDON v. STATE.
    No. A-8942.
    Nov. 22, 1935.
    (52 Pac. [2d] 103.)

      Toby Morris and Walter Hubbell, 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, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree, and sentenced to be imprisoned in the .State Penitentiary for a term of four years.

Bob Duncan, called on behalf of the state, testified:

“I was living at Walters, Okla., September 15, 1933, and attended a dance given by the American Legion at the hall; I saw the defendant at the hall and had some conversation with him; I noticed he was drinking. I drove up town for a while and came back to the hall; I saw the deceased Bob Kinney fall across the entrance of the door; the deceased tried to get up but could not; I would not be positive, but from the position I was in it looked like Dee Higdon hit him; I saw the deceased fall and he could not get up.”

Mrs. Kyle Hoosier, testifying for the state,' stated:

“I was in Walters the night of September 15, 1933, and attended a dance sponsored by the American Legion; I saw Bob Kinney, the deceased, that night; also saw Dee Higdon; the first time I saw Dee Higdon was between 9 and 10 o’clock; he was in front of the Pass Time Club; I was sitting out in front of the door and had a clear view; Dee Higdon was arguing with Mr. Thompson about going with Higdon’s first wife; I saw Higdon talking with Ben Hutchens; I heard him tell him not to leave, that he wanted him to stay and listen to what he had to say; about that time the deceased, Bob Kinney, came up, and defendant asked Bob if he was tough, and Bob mumbled a groan; Kinney’s bands were hanging down; the defendant told Kinney he was tough, and hit Kinney about that time. Bob Kinney never did say a word to the defendant; when the defendant hit Kinney he fell to the sidewalk; he tried, to pull himself up, and asked the defendant not to do that again; the defendant hit the deceased again below the ear on the neck; I could see and hear the licks that were struck; when the defendant hit the deceased the second time it looked like it lifted him off the sidewalk in the air, and deceased came down on his head and lay there perfectly still; he was unconscious, and I saw blood coming out of his ears or mouth; the defendant asked several times how he liked it, and if anybody else wanted any of it; Ben Hutchens helped the deceased, Bob Kinney, away, and that was the last time I saw the deceased.
“Following this, Dee Higdon walked into the dance hall and started trouble with my husband; I walked in between them; the defendant sent the Coats boy and asked my husband where the deceased was, and the defendant and the Coats boy passed a lick or two; the Coats boy caught Dee by the front of his shirt and knocked him down, and the night watchman, assisted by other parties, helped the defendant into a car and took him away.”

Ben Hutchens testified in substance to the same facts as did Mrs. Hoosier. Several witnesses were put on the stand who testified to the conduct of the defendant, and that he was drunk and rowdy and trying to start a fight with several people; he would first ask them if they were tough, and then boast and brag about how tough he was.

The defendant, testifying in his own behalf, testified as to the condition of his health, and stated he had been suffering with headaches, first and last, for some time, and that he had been taking barbatol tablets to relieve his headache. The defendant admitted he had at least two drinks before the trouble; that he went to a Mr. Bailey’s to get the drinks; he did not remember drinking any 8.2 that evening, or night; he remembered having seen the deceased, Bob Kinney, along in front of Charley Finchers’ place of business, and deceased asked him if he had seen Jess Coats. “I told him I had not,” and defendant stated from the time he answered that question “Up until George Beach came to my home I do not remember anything that took place. I had no reason at all for striking Bob Kinney. I do not remember hitting him. I was beat np that night, but I do not know who did it. George Beach told me that Bob Kinney was dead.”

The only defense the defendant makes is that he was unconscious and did not know what he was doing from the time he met the deceased on the street, when the deceased asked him if he had seen Jess Coats, until some time after the killing he claims that his mind was a blank. The foregoing is the substance of the testimony both for the state and the defendant.

Six errors alleged to have been committed by the trial court in his case have been assigned as grounds for reversal.

The defendant in his brief argues all of the assignments together under one proposition, and alleges as grounds for reversal of the judgment, first, that the amended information upon which the defendant was prosecuted and convicted was filed the day of the trial, “and, charged the defendant with the crime of manslaughter by killing while engaged in the commission of a misdemeanor, to wit: being drunk on the streets of the city of Walters, and manslaughter by unlawfully, wrongfully, knowingly, and feloniously and in the heat of passion and in a cruel and unusual manner, striking and beating the deceased with his fist without a design to effect death.”

The record in this case shows the defendant was boasting about being tough, and was quarrelsome, and playing tbe role of a bully, around and near where tbe Legion dance was being beld. Tbe information in this case charged tbe defendant with a crime, and tbe defense of tbe defendant amounts in substance to a confession of wrongful killing. While it is evident tbe defendant did' not intend to kill tbe deceased when he struck tbe blow be did, bis actions indicating be only desired to play tbe bully by bitting a few of the boys in or near tbe dance ball, bis plea of having no recollection of what took place or what be did from a short while before tbe killing when he met the deceased, and told tbe deceased, when asked if he bad seen Jess Coats, that he had not, up until some hours after tbe killing, evidently was not believed by tbe jury, nor would any unbiased jury believe such statement, in view of the testimony in tbe record as to tbe actions of tbe defendant prior and subsequent to tbe killing. .His actions immediately after tbe killing in trying to raise a difficulty with others in the dance ball, shows he was drunk, and all the, testimony shows he was intoxicated to such an extent that he wanted to raise a row with any one that came along. He was fortunate the jury took a liberal view of his case in fixing the punishment at four years.

In this case, the court fairly and correctly advised tbe jury as to the law applicable to tbe facts. The defendant was accorded a fair and impartial trial, and without extending this opinion further, we hold he had a fair and impartial trial, and that there are no errors in tbe record warranting a reversal. Tbe judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    RUFF STINNETT v. STATE.
    No. A-8952.
    Nov. 22, 1935.
    (52 Pac. [2d] 113.)
    Toby Morris, Walter Hubbell, and Wm. T. Powell, for plaintiff in error.
    Mac Q. Willamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted upon a charge of receiving stolen property, knowing the same to have been stolen, and was sentenced to serve one year and one day in the state penitentiary.

It appears from the record that the Cotton County Wholesale Grocer Company was entered on the 12th day of May, 1933, and 25 cartons of cigarettes taken therefrom, and some tobacco; Jack Petty and Riley York were arrested charged with burglarizing said grocer company, and both testified for the state against the defendant, and testified they delivered the cartons of cigarettes to the defendant’s home, excepting 3 cartons.

York and Petty both testified they knew the defendant, and that one of them lived at the defendant’s house for a few days and used the defendant’s car whenever he wished to use it; they also testify they had driven back and forth with the defendant to different places. Some testimony was permitted to be introduced, over the objection of the defendant, as to the burglary of a meat market some time prior to the time Riley York had been living at defendant’s home, and York testified he took a ham to defendant’s home, which is denied by the defendant, his sister, and mother. Neither of the state witnesses trace any of the property directly in the possession of the defendant, and none was found at his home.

The defendant testified he knew nothing about the burglary; had nothing to do with it; and none of the property was brought to his home. The only effort the state made to connect the defendant Avith the burglary by showing he received the property knowing it had been taken from the wholesale grocer company, was by the testimony of York and Petty, confessed burglars of the wholesale grocery, and other burglaries in and around the city. There is no denial that he kneAV these boys, and that while York was living at his place for a few days he drove his car several times.

In the view we take of this record it would serve no useful purpose to set out in detail the testimony.

The defendant in his motion for a new trial and petition in error assigns the following errors:

“1. The verdict is contrary to the law and the evidence introduced in the case above mentioned.
“2. The court erred in the decision on questions of law arising during the course of the trial, and misdirected the jury in matters of law.
“3. The court erred in refusing to give an instruction requested by the defendant.”

The main question to be determined is, Is there sufficient competent testimony to sustain the conviction? The essential elements necessary to sustain a conviction of a crime of which the defendant was tried consists in receiving the property that had been stolen from another person, knowing such property to have been stolen, each of which must have been proven beyond a reasonable doubt by competent evidence, and not alone on uncorroborated testimony of accomplices.

Section 2265, O. S. 1931, is as follows:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by fine not exceeding, two hundred and fifty dollars, or by both such fine and imprisonment.”

Section 1808, O. S. 1931, is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

¡Section 3071, O. S. 1931, is as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This court, in Key v. State, 38 Okla. Cr. 169, 259 Pac. 659, in the second paragraph of the syllabus, said:

“Ordinarily, the thief is not an accomplice of one who receives the stolen property knowing it to' be stolen, but, where there is a previous arrangement between the thief and the receiver by which one is to steal the property and the other to receive it, and pursuant to such plan the property is stolen and received, the receiver is an accomplice of the thief, and the thief is an accomplice of the receiver, and in such case corroboration of the testimony of the accomplice is necessary.”

The contention of the defendant is that the witnesses, Petty and York, were not corroborated by any one; that according to their statements they were accomplices of the defendant, and were uncorroborated, and therefore the court erred in refusing to sustain his motion for a new trial. When the question of an accomplice arises in the triaT of a case, the general and accepted rule is for the court to instruct the jury on the accomplice’s testimony, and leave the question as to whether or not the witness is an accomplice to the determination by the jury as a question of fact.

In Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487, this court for the first time definitely announced the rule in subdivision (a) of the first syllabus, that:

“(a) But, where the thief and the receiver of the stolen property conspire together to steal the property, with a prearranged plan for the one who actually commits the theft to deliver it to the other at an agreed time and place, and the thief aids and abets the receiver in concealing the property, the thief is an accomplice of the other in the commission of the offense of receiving stolen property.”

In tbe case of State v. Keithley, 83 Mont. 177, 271 Pac. 449, 451, the Supreme Court of Montana said:

“But where, as here, the thief and the receiver of the stolen property conspire together, in advance of the larceny, for one to steal and the other to receive, they are principals, and the thief is an accomplice of the receiver, and vice versa.”

Yeargain v. State, 59 Okla. Cr. 136, 45 Pac. (2d) 1113, and cases therein cited.

In the absence of some independent proof that the defendant came into possession of the stolen property, we are of the opinion that the evidence was entirely insufficient to sustain the conviction. It follows from what has been said this case was tried and submitted to the jury upon an erroneous theory of the law and evidence, prejudicial to the rights of the defendant. Upon a careful consideration of the record and briefs, we are of the opinion that the motion of the defendant for a new trial on the ground that the evidence was insufficient to sustain the verdict, and the court erred in not properly declaring the law, should have been sustained.

For the reasons stated, the judgment appealed from is reversed, and the case remanded, with directions to dismiss, unless the state can produce further testimony tending to connect the defendant with the crime independent of the testimony of the uncorroborated accomplices.

EDWARDS and DOYLE, JJ., concur.


author: EDWABD.S, J.

text:
    C. G. LOWE v. STATE.
    No. A-8922.
    Nov. 22, 1935.
    (52 Pac. [2d] 115.)

      C. E. Bobertson and Cousin P. Kimble, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Phil K. Oldham, Charles A. Chandler, A. Camp Bonds, and J. F. Beavers, for the State.
   EDWABD.S, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of preparing false evidence and was sentenced to serve a term of eighteen months in the state penitentiary.

Two assignments of error are argued, the first complains of the court’s ruling denying defendant time to plead upon the filing of the amended information at the time of trial. The second relates to the court’s ruling denying defendant the right to testify in his own behalf because of a former conviction on a charge of perjury. We might dispose of this case on the first assignment, or we might say, as some of the courts have said, that the record of conviction of the disqualifying crime must be produced. We deem it unnecessary to discuss the first assignment, for we prefer to dispose of it on the fundamental question of whether or not the Legislature in any event can deny a defendant accused of crime the right to testify in his own behalf, because of a prior conviction on a charge of perjury. The record discloses that defendant took the stand in his own behalf and when he had stated his name and that he was defendant in the case, the county attorney asked permission to propound a qualifying question; permission being granted he asked defendant if he had been convicted of a felony and upon an affirmative answer he asked if the conviction was for perjury, which was answered in the affirmative; the county attorney thereupon objected to the competency of the witness on this ground and after some colloquy between court and counsel the objection was sustained and defendant thereupon was excluded as a witness. The state seeks to justify this ruling under section 2420, Okla. St. 1931, which is:

“No person who has been convicted of perjury, or of subornation of perjury, shall thereafter be received as a witness in any action, proceeding or matter whatever upon his own behalf; nor in any action or proceeding between adverse parties against any person who shall object thereto, until the judgment against him has been reversed. But where such person has been actually received as a witness contrary to the provisions of this section, his incompetency shall not prejudice the rights, innocently acquired, of any other person claiming under the proceeding in which such person was so received.”

If this statute is constitutional, and applies to defendant offering himself as a witness in his own behalf, the ruling of the court is correct. It might be well to cite here also sections 268, 3068, Okla. St. 1931, which are:

Sec: 268: “No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.”
Sec. 3068: “In the trial of all indictments, informa-tions, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

These three sections are from the Dakota code. Considered and construed together, sections 268 and 2420 state a general rule and section 3068 states an exception to the general rule. These statutes must be construed in connection with our Constitution, section 20, art. 2, which provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed : Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

No case in which a defendant was denied the right to testify in his own behalf under statutes and a Constitution similar to ours has been called to our attention, nor have we been able to find any so holding. There are many cases .discussing the disqualification under the common law and under statutes of tbe substance of the common law. 70 C. J. p. 105, § 132f; 28 R. C. L. p. 456, § 43f; 1 Wigmore on Ev. p. 647, § 519f; 1 Greenleaf (16tlx Ed.) p. 513, § 372f. That the statute is valid if one convicted of perjury be called as a witness in any criminal case in which he is not a party or in a civil suit for the purpose of this case may be assumed. There appears to be abundant authority to sustain it. Annotation Brown v. U. S., L. R. A. 1917A, 1138. In Weber v. State, 18 Okla. Cr. 421, 195 Pac. 510, an accused convicted of grand larceny and denied the right to testify on the ground of a prior conviction for perjury was reversed on confession of error by the Attorney General, but in that case the opinion assigns as a reason for reversal the conviction for perjury was in another state. The constitutionality of our statute appeal’s not to have been questioned. This statute also had the attention of the court in Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, but since the conviction there was for a felony other than perjury the case is not in point. Also in Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561, this court held the law in force in the Indian Territory prior to statehood controlled and that the statute here involved had no application.

The test-writers and courts in substance refer to this limitation as a hangover from the harshness and class distinctions of early English jurisprudence and frequently the decisions have criticized the disqualification and have sought to soften and to limit its application. Thus in Vance v. State, 70 Ark. 272, 68 S. W. 37, 42, it was said:

“We take this occasion, also, to call attention to the backward state of the law in this state in reference to the competency of witnesses convicted of felony. The statutes which render such witnesses incompetent belong to a class of antiquated laws which suppress evidence, and which the wisdom of modern ages has discredited and shown to be unreasonable and injurious. They are of the same class as the laws which formerly forbade the parties to the suit from testifying, and closed the mouth of the defendant on trial for his life, and should be repealed, as these laws have been repealed, for such matters should go only to the credit or impeachment of the witness, not to the exclusion of his testimony. There is no valid reason why a person who knows anything material to the decision of a case on trial should not be permitted to tell it, whatever may be his character, the jury being allowed to weigh his testimony in connection with his character and antecedents. These statutes not only suppress evidence, but the application of them often presents difficult and doubtful questions, which, being decided in the hurry of trial, frequently results on appeal in reversals, and in this way justice is often thwarted. There are very few states that now retain such laws, and we think our legislators might well consider whether they should not be repealed in this state also.”

See, also, Morgan v. State (Rayland v. State), 86 Tenn. 472, 7 S. W. 456.

Our statutes, section 2420, 1981, supra, construed to apply to a defendant called as a witness in his own behalf is in contravention of section 20, art. 2, Constitution, supra, which confers on an accused the right to be heard in his own behalf by himself and by counsel. The term “right to be heard by himself” is to be construed in its broadest sense in favor of an accused. It is not limited to' the mere making of an unsworn statement or by addressing the court or jury, but includes the right to take the stand as a witness, to be sworn and to testify. In such case, of course, a prior conviction for perjury or any other crime may be shown as affecting his credibility but it cannot be used to deny him the right to testify. Ex parte Morse, 141 Okla. 75, 284 Pac. 18. It follows the ruling of the court denying defendant the right to testify in his own behalf was in violation of his constitutional rights.

The case is reversed.

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


text:
    DICK TEAGUE v. STATE.
    No. A-8943.
    Nov. 1, 1935.
    Rehearing Denied Nov. 22, 1935.
    (52 Pac. [2d] 91.)

      Arney & Barker and R. F. ,Shutter, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess W. Pullen, Asst. Atty. Gen., and Roy H. Mead, Co. Atty., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kingfisher county of robbery with firearms, and was sentenced to serve a term of 20 years in the state penitentiary. At about 9 o’clock, at night, on the date charged, Jim San-dusky, an automobile dealer at Kingfisher, drove into his garage and was there seized by two persons who forced him to drive his car south into Canadian county and to turn off on a side road to a schoolhouse where they tied him, took his money, and then departed with the car. About a week later, defendant and one Mike Gault, who was jointly charged, after some resistance were apprehended with the car at Paducah, Tex. Defendant, under a fictitious name, had just registered the car in Texas. They had in the car two Colts special and an automatic pistol. Questioned by the sheriff, defendant gave a fictitious name and told the sheriff he lived at Amarillo and was a cattle buyer. Further he said that he did not take money from people who needed it. Defendant had $550 in money on his person, and offered the sheriff |500 to' release them. He also requested the sheriff to return to him, or tear up, some car title papers found on bis person. A severance was bad, and only tbe defendant Teague was on trial. Defendant did not take tbe stand, but made tbe defense of alibi by tbe testimony of his wife, fatber-in-law, and sister-in-law of Oklahoma City; by bis codefendant, Gault; and by some other testimony. Defendant’s wife and relatives testified defendant spent tbe night of tbe robbery at bis father-in-law’s home in Oklahoma City, where his wife was staying at tbe time, and that be and Gault left early the next morning for Roger Mills county on business. Gault testified they spent tbe night at Oklahoma City, left early tbe next morning, went to tbe residence of one Hays, near Canute, in Custer county; that they got there about 8:30 o’clock, and spent tbe day. Tbe next day they went to a place owned by defendant in Roger Mills county and found it being burglarized by one “Blackie” Picklesimer and some other person, and, after some negotiations, Pick-lesimer agreed to pay Teague $100 for the damage be bad done, and then gave them tbe title papers to the car with tbe understanding they were to meet him a day or two later in Shamrock, Tex., where be would pay them tbe $100. That they sold defendant’s car at Elk City, and on the day appointed procured some one to drive them to Shamrock, where they met Picklesimer who .informed them be did not have the money, but if they would go with him to Paducah be would procure it. That they did go to Paducah and there were arrested with the stolen car; but at the time of the arrest Picklesimer had gone across the street to a filling station, and he was now in the penitentiary at McAlester. This explanation of the possession of the car, the purported agreement with Picklesimer, the procuring of a Texas tag under a fictitious name, the statements to and the offer to bribe the sheriff to release them, are so fantastic we are not surprised defendant did not take the stand, and are not surprised the jury did not believe it. Upon the facts stated, which omit various details which probably would make it more unreasonable, we have no doubt defendant was either one of the actual robbers of Sandusky, or was in complicity with whoever actually took the car.

Considering the extremely difficult state of facts with which they had to deal, defendant’s counsel have briefed the case well. It is first contended the evidence is insufficient. On this point they argue that since Sandusky could not identify the persons who robbed him, and since two witnesses, one at Hinton and one at Weatherford, testified that about this time some persons attempted to sell them a Chevrolet car answering the general description of the stolen car, considered with the testimony of alibi, the jury could not reasonably and logically find a verdict of guilty. We are not in accord with this conclusion, and without elaborating on the reasons are satisfied an intelligent jury could have no reasonable doubt of the defendant’s connection with the robbery, either as a participant or in complicity with the robbers.

Complaint is made that the court erred in certain instructions. This is directed mainly to instruction 7, which is in the language of section 1808, Okla. Stat. 1931. The argument admits correctness as an abstract proposition of law, but insists there is no evidence which warrants this charge. True, there is no direct testimony that defendant was an accomplice of someone else, who committed the actual robbery. Such deduction, however, may arise from testimony offered by defendant to the effect he met Picklesimer at his place with the stolen car two days after the robbery; that Picklesimer there gave him the title papers; that he again met Picklesimer at Shamrock, Tex., and went with him to Paducah, Tex.; and that Picklesimer was in the immediate vicinity when defendant was ar- . rested. O. E. Findley, a witness for defendant, who resided at Hinton, testified that on the day after the robbery two persons came to his place and attempted to sell him a Chevrolet answering the description of the stolen car, and one of them called the other “Blackie,” the name by which Picklesimer was known. There was no error in the giving of this instruction.

It is further argued under this assignment the court erred in his instruction on the law of alibi, which was as follows:

“You are instructed that one of the defenses interposed by the defendant in this case is what is known, in law, as an ‘alibi’; that is, that the defendant, at the time of the commission of the alleged crime, was at another place, or so far away that he could not have participated in the commission thereof. The defendant is not required to prove this defense beyond a reasonable doubt, but it is sufficient in this respect, if, from a consideration of all the evidence in the case, you have reasonable doubt of the presence of the defendant at the time and place of the commission of the crime charged in the information. But, upon the other hand, you are instructed that if, after a full, fair and impartial consideration of all the evidence in the case, together with all the other facts and circumstances appearing in evidence upon the trial of the case, you feel that you are satisfied, beyond a reasonable doubt, of the guilt of the defendant, then it would be your duty to return a verdict finding the defendant guilty as charged in the information.”

The objection is that it does not tell the jury that if they entertain a reasonable doubt as to the presence of the defendant at the time and the place of the commission of the crime charged that they should give the defendant the benefit of the doubt and acquit him. When the court told the jury if they should find, beyond a reasonable doubt, the guilt of defendant, it would be their duty to return a verdict of guilty, he should have gone further and have told the jury unless they should so find they should find defendant not guilty. In failing to do so the instruction is condemned. However, the jury must have understood they were required to find guilt beyond a reasonable doubt, or, if they had a reasonable doubt, they must return a verdict of not guilty. No exception was taken to this instruction, and the motion for new trial does not particularly point out this instruction, but merely refers to “certain instructions to the jury, which were duly ob: jected to by defendant.” This instruction, not having been objected to, does not fall within the purview of the motion for new trial, and in any event would not require a reversal.

Defendant insists the court erred in admitting incompetent evidence. This is directed to various items, several of which will be noticed. The sheriff at Paducah testified that when he arrested defendant he found $550 on his person. It is argued this was prejudicial, since it had been shown that only a few dollars was taken from Sandusky at the robbery; hence this testimony had no bearing on the case. This testimony had no direct bearing on the case, but since the sheriff testified and it was undenied that defendant at his arrest had title papers and keys to another car besides the car of Sandusky and offered the sheriff a bribe of $500 to release him and his codefendant, Gault, it wag admissible as going to his ability to pay such bribe, and as a circumstance to corroborate the testimony of the sheriff. It is generally held that an offer of a bribe is a circumstance indicating guilt. 8 R. C. L. p. 193; 16 C. J. p. 541, § 1024 and p. 549, § 1057f; Wigmore, vol. 1, p. 354, § 277.

Under this assignment, complaint is made the court erred in permitting the codefendant, Gault, to be brought into the courtroom at one time for identification and comparison by a witness who had testified he saw defendant and Gault in the town of Kingfisher on the afternoon preceding the robbery. Defendant contends the identification of Gault would in nowise connect defendant with the robbery. It was the state’s theory that defendant and Gault were acting, together in the robbery and in disposing of the car, the fruits of the robbery. There was no error in this procedure. There is complaint also to the testimony of one Smith, negro boy, who testified he saw defendant and Gault at Granite on the day they were arrested at Paducah. Witness, an inmate of the reformatory, testified he was going to work in a reformatory car and saw defendant and Gault drive into a filling station; that witness’ home was Kingfisher, and he noticed this particular car because Sandusky’s name was on it; presumably on the tire cover on the rear. That later this witness, while confined in the jail at Kingfisher, talked to defendant and told him of seeing him at Granite, and that defendant then told witness he was arrested on the afternoon of the same day in Texas.

It is urged the county attorney, during the trial, referred to the fact defendant had not testified. This contention arose as follows: Witness Smith was called on rebuttal and testified, as above set out, of a conversation with defendant in the jail, thus:

“Q. What was said about that with reference to the time he was arrested? Mr. Shutler: That is objected to as incompetent, irrelevant and immaterial, no proper foundation laid; this is not rebuttal testimony. Nowhere was that question asked of Mr. Teague. They are introducing new evidence that is not rebuttal. Mr. Firestone: He wasn’t on the stand, we couldn’t ask him. Mr. Arney: Now we move to have the remarks of counsel stricken from the record. The Court: The jury will not consider any remarks of counsel made outside the record.”

Defendant argues this was a violation of section 3068, Okla. Stat. 1931, which, in substance, forbids mention on the trial of the fact defendant did not testify; citing several cases. This statute is for the protection of a defendant in his constitutional right against incriminating himself. The statute gives him the election to testify or not, and his failure to testify is not subject to comment by' counsel for the state, and, if mentioned, is a ground for a new trial. This being for the benefit of a defendant, he may waive it. Where defendant’s counsel mentions the failure of defendant to testify, it is not error if counsel for state answer such comment. Cherry v. State, 33 Okla. Cr. 37, 211 Pac. 833; Everidge v. State, 50 Okla. Cr. 144, 3 Pac. (2d) 750. In Radney v. State, 36 Okla. Cr. 210, 253 Pac. 913, it is said that a defendant may not complain of an error which he himself has invited or which he has waived either expressly or impliedly. In Cherry v. State, supra, this court said: “It is not reversible error for counsel for the state to comment on the failure of a defendant to testify, where defendant’s counsel himself first comments on the fact that the defendant did not take the stand.”

Defendant’s counsel, by his objection, suggested defendant had testified, and counsel for the state met that objection by stating, in substance, he had not testified. The objection of defendant’s counsel opened the subject of defendant being a witness. It was a waiver of what otherwise would have been an error by counsel for the state.

Defendant argues the court permitted the state to introduce incompetent testimony constituting an attack on defendant’s character and tending to show the commission by him of some independent crime; citing 16 C. J. p. 586, §§ 1125-1132;,Satterfield v. State, 32 Okla. Cr. 98, 240 Pac. 151. The testimony objected to does not constitute an attack on defendant’s character and does not tend to prove him guilty of some other offense. When co-defendant Gault testified for defendant he was asked on direct examination particularly with reference to the confinement both of himself and defendant in jail, since the arrest at Paducah. The state, by the witness Smith, in rebuttal brought out that a part of this time he was not confined in the jail, but was confined in the penitentiary. There was no suggestion he was confined in the penitentiary for any other crime. This evidence was of no particular importance, and Avas not prejudicial. Where more than one defendant is involved, it is not unusual that different defendants are at times confined in separate places. There was no objection to this testimony nor motion to strike. It is a general rule that the admitting of incompetent testimony, unless fundamentally erroneous, avíII not be considered by this court, unless objected to at the time and an exception saved to an adverse ruling.

Defendant also earnestly contends the court erred in not instructing the jury on the law of circumstantial evidence. Where circumstantial evidence alone is relied on for a conviction, it is the duty of the court to instruct on the law applicable thereto on his own motion, and he must so instruct when requested by defendant. When, however, the case rests on circumstantial evidence, and no request for an instruction on the law of circumstantial evidence is made by defendant, the failure does not constitute reversible error; the presumption being that defendant is satisfied with tbe charge. Bock v. State, 34 Okla. Cr. 313, 246 Pac. 642; Breedlove v. State, 49 Okla. Cr. 428, 295 Pac. 239; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900; Klaber et al. v. State, 35 Okla. Cr. 238, 250 Pac. 142; Ayers v. State, 53 Okla. Cr. 89, 7 Pac. (2d) 918, 919.

Upon the consideration of the entire record, we are satisfied defendant was fairly tried, that the evidence fully sustains the verdict and judgment, and that the trial was free from material error. The case is affirmed.

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