text:
    JACK LEPLEY v. STATE.

      No. A-9629.
    June 6, 1940.
    (103 P. 2d 568.)

      Pierce, McClelland, Kneeland & Bailey, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Alvin C. Bruce, Co. Atty., of Ardmore, for the State.
   BAREFOOT, J.

Defendant, Jack Lepley, was charged in the county court of Carter county with the crime of “interference with standing vehicle”; was tried, convicted, and the court assessed his punishment at a fine of $100 and costs, and. a jail sentence of 30 days.

Four separate propositions are submitted by the defendant for reversal of this case. We are of the opinion that they may be disposed of by considering them together, and it will not be necessary to consider each separately. For this purpose it is necessary to briefly state the facts as revealed by the record.

The defendant, Jack Lepley, was an agent of the Universal Credit Company. This company was engaged principally in handling the paper taken by automobile companies from those who purchased automobiles. J. R. Whit-ten, the complaining witness, had purchased an automobile from the Brattain Motor Company of Lamont, Grant county, Okla., and this company took what is known in law as a conditional sale contract from J. R. Whitten, and this contract was assigned to the Universal Credit Company by the Brattain Motor Company. This conditional sale contract was introduced in evidence, and among its terms were the following:

“* * * which purchaser promises to pay to the order of Universal Credit Company at its office in 18 equal consecutive monthly installments of $28.00 each * * * on the 5th day of each successive month beginning October 5, 1937. * * *”

And contains the following provisions:

“1. Purchaser agrees: That title to said property shall not pass to the purchaser until all sums due under this contract are fully paid in cash; * * * that payment to anyone other than Universal Credit Company will not constitute payment hereunder; * *

And also: “* * * that Seller’s assignee shall be entitled to all rights of the Seller.” And further:

“Time is of the essence of this contract and if any installment is not paid in full when due, or if purchaser fails to perform any of his obligations or comply with any conditions of this contract, * * * this contract shall be in default and the full amount remaining unpaid shall immediately become due and payable * *

And:

“Upon any such default, seller may take immediate possession of said property including any equipment or accessories thereto without legal process, without demand and for this purpose seller may enter any premises where said property may be found and remove same.”

The evidence reveals that monthly payments were to be made by Mr. Whitten in the sum of $28. That default had been made in the October, November, and December, 1938, payments. That certain negotiations for the settlement of these delinquent installments had been had between the defendant and complaining witness prior to January 28, 1938. For a proper disposal of this appeal it is unnecessary to relate these negotiations. On the above date the defendant, Jack Lepley, seeing the automobile covered by the conditional sale contract parked on the public streets of the city of Ardmore, and acting upon instructions from his company, the Universal Credit Company, took possession of the car, and drove the same to- the Sam P. Hale Motor Company, and there stored it in the name of the Universal Credit Company, taking a receipt therefor. The tailing possession and operating of the automobile by the defendant was without the knowledge or consent of the complaining, witness, Whitten, other than as expressed in the conditional sale contract, heretofore quoted.

The complaining witness upon locating the automobile and finding that defendant had removed the same, proceeded to the office of the county attorney and filed the charges against defendant as above stated.

The statute upon which this charge was based is Oklahoma Statutes 1931, § 10292, 47 Okla. St. Ann. § 235, which is as follows:

“Any person who shall, without consent of the owner, start, or caused to be started the motor of any motor vehicle, or shift, change, or move the levers, brake, starting device, gears, or other mechanism of a standing motor vehicle to a position other than that in which it was left by the owner or driver thereof, or attempt to do so, or shall intentionally cut, mark, scratch or damage any part or portion of said motor vehicle or any accessories, equipment, appurtenance, or attachments thereof, shall, upon conviction thereof, be punished by a fine not exceeding One Hundred Dollars ($100.00), or imprisonment in the county jail for a period not exceeding six (6) months, or both such fine and imprisonment in the discretion of the court. Provided, that this section shall not [apply] in case of moving or starting of motor vehicles by the police or peace officers for lawful purposes, nor by members of fire departments in cases of emergency in the vicinity of a fire, nor the changing of the position of said motor vehicle temporarily without starting the motor of the same by any one for the purpose of extricating another vehicle from a congested position.”

It is the contention of the defendant that:

“The holder of a conditional sale contract covering an automobile, the title to which is reserved in the seller, does not have a. lien on the property, but is the owner of it and is entitled to recover it where conditional vendee defaults in the terms of the contract. In taking possession of such property from a public street where conditional vendee parked it, the holder of such conditional sale contract does not violate the provisions of section 10292, Okla. Stats. 1931, 47 Okla. St. Ann. § 235, defining the offense of ‘Interference with Standing Vehicle.’ ”

This proposition is argued under different headings. Requested instructions covering this and other kindred propositions were offered by the defendant, and refused by the court. As above stated all of these may be considered together.

The first proposition to be considered is, what is meant by a conditional sale contract? The Supreme Court of this state has had this question before it on many occasions, and to our mind the law of this state, as to what a conditional sale contract is, has been definitely settled, and also what the respective rights of the parties are to a contract of this character.

The Supreme Court has had before it for consideration this question in the following cases: General Motors Acceptance Corporation v. Vincent, 183 Okla. 547, 83 P. 2d 539 ; Leedy v. General Motors Acceptance Corporation, 173 Okla. 445, 48 P. 2d 1074; National Cash Register Co. v. Stockyards Cash Market, 100 Okla. 150, 228 P. 778; John C. Mondie v. General Motors Acceptance Corporation, 178 Okla. 584, 63 P. 2d 708 ; Haubelt v. Bryan & Doyle, 171 Okla. 338, 43 P. 2d 68; First National Bank & Trust Co. of Muskogee v. Winter, 176 Okla. 400, 55 P. 2d 1029; Phelan v. Stockyards Bank, 134 Okla. 13, 276 P. 175; C. Cretors Co. v. McMillan, 106 Okla. 260, 234 P. 189; Ealy v. General Motors Acceptance Corporation, 169 Okla. 95, 36 P. 2d 4; and see, also, In re Terrell, 8 Cir., 246 F. 743, 159 C. C. A. 45; Bailey v. Baker, 239 U. S. 268, 271, 36 S. Ct. 50, 60 L. Ed. 275; Lewis v. Valley Finance Corp. (Tex. Civ. App.) 17 S. W. 2d 138; Lynch v. Sable-Oberteuffer-Peterson, 122 Ore. 597, 260 P. 222, 55 A. L. R. 184; General Motors Acceptance Corp. v. Shuey, 243 Ky. 74, 47 S. W. 2d 968; Blackford v. Neaves, 23 Ariz. 501, 205 P. 587.

It is not necessary to quote from these cases as they may be read by those who desire. They establish the following principles:

First. That where property is purchased under a conditional sale contract, that the title to the property remains in the vendor until the terms and conditions of the contract are complied with by the vendee, and the full purchase price is paid therefor.

Second. That the vendor does not have an equitable lien on the property, but the property remains the property of the vendor until the full purchase price is paid therefor.

Third. That conditional sale contracts are not chattel mortgages, but are sales upon condition.

Fourth. Under a conditional sale contract the vendor has two' remedies:

(a) He may treat the sale as absolute and maintain an action for the purchase price; or,

(b) He may rescind the contract and recover possession of the chattels. He cannot do both. He must elect which remedy he intends to pursue, and having done so no other remedy is open to him. Where an election is made it is final and irrevocable, irrespective of intent. Mondie v. General Motors Acceptance Corporation, 178 Okla. 584, 63 P. 2d 708.

Fifth. Under an express provision of the contract giving the vendor the right upon default to take possession of the property without resort to legal process, he may do so-if he does not commit a breach of the peace, or an unlawful trespass. Lynch v. Sable-Oberteuffer-Peterson, 122 Ore. 597, 260 P. 222, 55 A. L. R. 180, and note following.

Sixth. Under the above decisions the Supreme Court of this state has definitely held that the taking of possession by the seller of an automobile parked upon the streets by the vendee, and where there was default in the conditional sale contract, was not a taking by force or by unlawful trespass, and was not illegal. Leedy v. General Motors Acceptance Corporation, 173 Okla. 445, 48 P. 2d 1074; Malone v. Darr, 178 Okla. 443, 62 P. 2d 1254; First National Bank & Trust Co. of Muskogee v. Winter, 176 Okla. 400, 55 P. 2d 1029.

Under the holding of the above cases, if the title to the property had not passed from the seller to the buyer, and no force was used by the agent of the seller in securing possession of the property, and the seller was the owner of the property, we are unable to see how an agent of the seller could be found guilty, under the statute above quoted, for doing that which he had a right to do under the law. Certainly the terms of this statute were not intended to apply to one who under the law had the legal title to the property, and by the terms of the contract was entitled to the possession of the same upon default of its terms.

It is contended that this is a harsh contract, and that point is conceded. But it is a contract entered into by the buyer of the property himself. He specifically agrees that the title to the property may remain in the seller until he fully complies with the contract by making full payment of the purchase price. If he complies with his agreement he becomes the owner of the property. To hold otherwise would be in direct conflict with the decisions of the Supreme Court above cited. If there be any conflict in the decisions of the courts, the point has been definitely settled by the Supreme Court of this state, and we are of the opinion this court should follow the construction placed upon the term “conditional sale contract” by that court. In many states there has been enacted an act known as “The Conditional Sales Act”, which governs the procedure under contracts of this character. Oklahoma has enacted no such statute. The Supreme Court has interpreted them in view of their specific terms, and the general law as applied to conditional sales contracts. The question is determined from the. facts and circumstances of each particular contract. Malone v. Darr, 178 Okla. 443, 62 P. 2d 1254.

The only condition imposed by our statute, Oklahoma Statutes 1931, § 11906, 60 Okla. St. Ann. § 318, upon conditional sale contracts, are that it shall be necessary that the same, or a true copy thereof, shall be deposited in the office of the county clerk wherein the property shall be kept, or they will be void as to innocent purchasers, or the creditors of the vendee, and when SO' deposited it shall be subject to the law applicable to the filing of chattel mortgages. If it be held that this section is applicable to conditional sale contracts, then under section 11272, Okla. Stats. 1931, 46 Okla. St. Ann. § 52, the buyer would have the right to1 apply to the district court in order to enforce a “legal counterclaim or any other valid defense against the collection of the whole or any part of the amount claimed to be due.” The court has the right to enjoin the advertisement and sale of the property under the terms of this statute. This would give an adequate remedy to the buyer, and would take much of the harshness provided for by the conditional sale contract as above stated.

From a reading of the section of the statute under which defendant was charged, and as above quoted, it is hardly conceivable that it was the intention of the Legislature to cover a charge such as the facts developed in this case. It is more likely that it was intended to punish those who entered parked automobiles for the purpose of “joy riding”, or when an automobile is taken and used without an intention of permanently depriving the owner thereof, which would be theft or larceny. And while an intent may be inferred from the facts and circumstances, there is no fact or circumstance in the instant case to conclude that defendant had such intent to violate any statute when he entered and started the automobile in the instant case.

The brief filed by the state does not refer to, or attempt to answer, the rule announced in the cases decided by the Supreme Court of this state, and heretofore cited. The only contention made is that by reason of the evidence showing that the complaining witness, J. B. Whitten, had been issued a certificate of title for motor vehicles, under the Motor Vehicle Act, Session Laws 1937, chapter 50, article 7, 47 Okla. St. Ann. § 19a et seq., he was the owner of the property, and that defendant was therefore guilty under the section of the statute under which he was charged. As heretofore stated this position is in direct conflict with the decisions of the Supreme Court of this state in the cases heretofore cited, which directly hold that the assignee of the conditional vendor was the owner of the automobile therein involved, and after default was entitled to the possession of same, provided it was not taken by force, or unlawful trespass; and that the taking of the same from the street where it was parked, and without the knowledge or consent of the buyer, was not such force or unlawful trespass as was contemplated under the law.

In the next place it is hardly logical that the Vehicle License and Registration Act of 1937 was enacted for the purpose of determining the ownership of the vehicle, for which the license was to be obtained. It is not logical to suppose that the issuance of the certificate by the commission was a positive determination of the fact, as to who was owner of the title to the vehicle. This, to our mind, is very apparent from the terms of the Vehicle License and Registration Act, Session Laws 1937, chapter 50, art. 7, 47 Okla. St. Ann. § 19a, which reads in part as follows:

“Section 2. Definition
“The following words and phrases used in this act shall, for the purpose of this act, have the following meanings respectively ascribed to them: * * *
“ (11) ‘Owner’. Any person owning or possessing any vehicle, as herein defined.”

. It will thus be noted that one “possessing any vehicle” is deemed the owner “for the purpose of this act”. It is not a direct establishment of the fact that one is the “owner”, who takes out the license. It could very easily be understood that the “owner” of a vehicle could deliver the “possession” of the same to another for the purpose of permitting him to take out a license and drive the same. Certainly the possession of one under a conditional sale ■contract would be such “possession” as would permit his purchasing of the license under said act. This is further demonstrated by the terms of the act. Section 4 uses the words “every owner or possessor”.

The certificate of title issued by the Oklahoma Tax Commission, to the complaining witness, J. R. Whitten, provided: “That I am satisfied that the applicant is the lawful owner of the above-described motor vehicle, or is otherwise entitled to have the same registered in his name”.

Also in the original application for the license it is stated:

“I, the undersigned, do solemnly swear (or affirm) that I am the owner, or legal agent of the owner, of the above described motor vehicle, and that the statements contained herein are true.
“(Signal) J. E. Whitten.
“Owner or Legal Agent of Owner.”

King-Godfrey, Inc. v. Rogers, 157 Okla. 216, 11 P. 2d 935; Parrott v. Gulick, 145 Okla. 129, 292 P. 48.

It is contended that by reason of the fact that the evidence revealed that the Universal Credit Company had registered itfe contract under the provisions of the Oklahoma Mortgage Law, and had paid the taxes thereon that this showed an intention to' treat the contract as a chattel mortgage and not as a conditional sale. In answer to this contention it may be stated that under Oklahoma Statutes 1931, § 12363, 68 Okla. St. Ann. § 511, it was not the intention to levy a tax upon security nor upon chattel mortgages, but a tax upon obligations evidencing an indebtedness regardless of whether or not such obligations are secured by a chattel mortgage, a conditional sale contract, or in other ways. In the brief of the state, it is stated:

“If it were not for the Motor Vehicle Eegistration Act we might agree with the plaintiff in error in his brief and the citation of authorities. * * *”

In the face of this admission, and the decisions of the Supreme Court of this state, in the case of Malone v. Darr, 178 Okla. 443, 62 P. 2d 1254, this question seems settled, for in that case the court held that under a chattel mortgage containing the provisions such as are quoted from the contract in the instant case, the “mortgagee has right to take possession after default without prior demands or other notice than that required by mortgage, provided the seizure is made in peaceable and orderly manner without committing breach of peace, or resort to force, stealth, or fraud”. In that case the automobile was parked in a public parking place and possession was taken by locking the car and without consent of the vendee. The car was then sold by the vendor. This decision was based upon the case of Leedy v. General Motors Acceptance Corporation, 173 Okla. 445, 48 P. 2d 1074, heretofore cited. See, also, Waggoner v. Koon, 67 Okla. 25, 168 P. 217, and, Goodman v. Schulman, 144 Misc. 512, 258 N. Y. S. 681, 683, which says:

“The law recognizes that personal property taken as a mortgage security, because of its transitory nature, can easily be lost, strayed, converted, or stolen. Realty cannot stray or be converted or stolen. Hence the law merchant recognizes the necessity of sanctioning summary methods of seizure to call in chattel mortgages. Were it otherwise, any system of credit extended upon chattels as security would be imperilled and perhaps break down. Cautious lenders would decline to lend on so insecure a collateral. Hence we have the principle that immediately on default the chattels are the property of the mortgagee, to seize as the mortgage provisions direct, and no other or further notice is required except as the chattel mortgage itself covenants.”

As stated in Leedy v. General Motors Acceptance Corporation, supra [173 Okla. 445, 48 P. 2d 1075] :

“Many features of the ‘contract’ are harsh, contrary to public policy, void, and unenforceable; but the provisions authorizing vendor or his assignee to take possession, upon conditions broken, of property conditionally sold, is not one of these. Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 Am. St. Rep. 901.”

In the cited case Chief Justice Gaines of the Supreme Court of Texas, said [96 Tex. 174, 71 S. W. 276, 60 L. R. A. 143, 97 Am. St. Rep. 901]:

“Certainly no breach of the peace is likely to occur provided the mortgagor in such case does what he has contracted to do and what it is his duty to do, namely, in case of default to surrender the property upon demand of the mortgagee. On the other hand, should he make forcible resistance, this does not justify the mortgagee in using force to overcome his resistance. The law hardly proceeds upon the assumption that either party will violate his agreement, and that therefore a breach of the peace may arise. The proposition that such a stipulation is valid, and that the mortgagee may take peaceable possession of the property without the consent, and even over the protest, of the mortgagor, is sustained by the great weight of authority. The following cases are in point: Street v. Sinclair, 71 Ala. 110; Burns v. Campbell [71 Ala.] 271; Walsh v. Taylor, 39 Md. 592; North v. Williams, 120 Pa. 109, 13 A. 723, 6 Am. St. Rep. 695; White Sewing Mach. Co. v. Conner [111 Ky. 827], 64 S. W. 841 [23 Ky. Law Rep. 1125]; Heath v. Randall, 4 Cush. [Mass.] 195; Satterwhite v. Kennedy, 3 Strob. Law [S. Car.] 457; Nichols v. Webster, 1 Chand. [Wis.] 203. Such is the rule recognized by the text-writers. Jones, Chat. Mortg. § 434; 1 Cob. Chat. Mortg. § 510; Ping. Chat. Mortg. § 989; Boone, Mortg. § 276."

In following the decisions of the Supreme Court of this state, we are but carrying out the general understanding that in matters pertaining to' the civil practice of the law the ¡Supreme Court has exclusive jurisdiction, and those arising out of the criminal law this court has exclusive jurisdiction, and although this may be a harsh contract, yet if all the statutes are applied as above indicated, it may be stripped of much of its harshness.

The question of distinguishing between conditional sale contracts and chattel mortgages, and the meaning of these terms, is clearly one arising out of the civil branch of the law, and it is the desire of this court to follow the decisions of that court in matters arising out of the civil branch of the law. From the decisions above cited we are of the opinion that court has clearly spoken.

For the reasons above stated, the judgment and sentence of the county court of Carter county is reversed, with directions to discharge defendant.

JONES, J., concurs. DOYLE, P. J., not participating.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    CHESTER BENDER v. STATE.
    No. A-9656.
    June 13, 1940.
    (103 P. 2d 565.)

      Ruble & Boatman, of Taloga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant Chester Bender was charged in the district court of Custer county with the offense of second-degree forgery; was tried, convicted and sentenced to serve a term of nine months in the state penitentiary, and has appealed to this court.

The information against the defendant reads, in part, as follows:

“That on or about the date aforesaid, in the county and state aforesaid, The said Chester E. Bender did wil-fully, unlawfully, knowingly, wrongfully, feloniously and falsely, make, write and forge a certain written instrument to-wit: a check in the following words and figures, to wit:
“ ‘Canton, Okla. Nov. 27th 1937 No.
The First National Bank
Pay to Charley Jones or order $18.75 Eighteen and............
75/100 Dollars “ ‘O. W. Eaton '
“‘(endorsed) Chas. Jones’
“with the fraudulent intent of the said Chester E. Bender then and there to- defraud the Safeway Stores, a corporation, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

Charley Jones, the person to whom the check is made as can he seen by the above information, was not jointly charged with this offense. However, he was used as a witness by the state, and under his own testimony was an accomplice. He testified in substance that he met the defendant in Clinton on November 27, 1937; that they had both been drinking; that he proposed forging the name of his half brother, C. W. Eaton, to a check; that the defendant Bender prepared the check, and signed the name of C. W. Eaton, who1 was the half brother of Jones, to the check. Jones then took the check to the Safeway Store, endorsed it, procured $2 or f 3 in groceries and the balance of the check in cash, and gave Bender $2 or $3 of the money.

The evidence shows that the ¡Safeway Stores did not commence this prosecution, but the same was instituted by the signing of the complaint by the sheriff of Custer county on December 17, 1937.

In the trial of the case, the testimony of C. W. Eaton, the man whose name was alleged to have been forged, was read to< the jury. At the time this testimony was given, the court reporter was called as a witness; and upon being questioned by the county attorney started reading the testimony given by Eaton in the preliminary hearing. At which time the attorney for the defendant interposed the following objection:

“By Mr. Ruble: To which the defendant objects for the reason it is incompetent, immaterial, and irrelevant, and is not the best evidence, no proper foundation is shown for this testimony. By the Court: Overruled. By Mr. Ruble: Exception.”

No evidence was offered by the state to show that Mr. Eaton was absent; the record does not show that a subpoena had been issued for him; and so far as the record shows, no effort whatsoever was made to obtain his attendance or to explain his absence, if in fact he was absent. It is the duty of the state, if possible, to procure the attendance of its witnesses, so that the jury may observe the demeanor of the witness upon the stand and give the defendant an opportunity to fully cross-examine him before the jury.

Where the testimony of a witness is given in a preliminary hearing, and the same is transcribed, and a proper foundation for the introduction of the same is laid, of course, we have held that the same is admissible in evidence.

In the case of Houser v. State, 41 Okla. Cr. 129, 271 P. 857, the first paragraph of the syllabus reads as follows:

“In the trial of a defendant, where the testimony of a. witness was taken at the preliminary examination and his testimony was reported by the court reporter in the presence of the defendant and his counsel, who’ had an opportunity to cross-examine the witness, and said testimony has been transcribed, duly certified, and filed with the court clerk, held, that if the witness is not present at the final trial, and the state makes sufficient showing that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the absent witness may be read to the jury.”

Also, Zeligson v. State, 43 Okla. Cr. 24, 276 P. 791.

But where the state makes no effort to lay a predicate for the admission of this testimony, and no explanation is given in the record as to why the witness himself does not testify, we have held that before the testimony of a witness at a preliminary hearing may be proved as secondary evidence against the accused in a subsequent trial, it must first be proved that a preliminary hearing was had, that the witness was sworn and testified, that the accused was present and had opportunity for cross-examination, that the witness has since died, become insane, left the state, or that he is sick and unable to testify or that his whereabouts cannot with due diligence be ascertained. Hawkins v. State, 3 Okla. Cr. 651, 108 P. 561; Kearns v. State, 14 Okla. Cr. 142, 168 P. 242; Jolliffee v. State, 21 Okla. Cr. 278, 207 P. 454; Alexander v. State, 51 Okla. Cr. 1, 299 P. 237; Scott v. State, 43 Okla. Cr. 232, 278 P. 393; Golden v. State, 23 Okla. Cr. 243, 214 P. 946.

The testimony of Eaton was material, and the conviction could not have been secured without his evidence.

The defendant further complains of the action of the court in admitting in evidence a check in the sum of $1 which had been given on February 16, 1938, by the defendant to a grain elevator at Thomas. This check was admitted by the court on the theory that it contained a specimen of the defendant’s handwriting which the jury might compare with the disputed handwriting on the check in question. However, there were other specimens of the defendant’s handwriting in evidence, and it was not necessary to use this check for that purpose. The check was returned to the payee because of insufficient funds of the maker to pay the same, and was a misdemeanor under the bogus check statute.

Evidence of offenses of similar nature committed at about the same time by an accused other than the specific offense for which he' is being tried may be properly admitted in evidence to show the guilty knowledge or intent of the accused, notwithstanding such evidence tends to prove accused guilty of other and distinct offenses.

The offense of giving a bogus check as above set forth was in no way connected with the offense for which the defendant was being tried, does not come within the rule above stated, and. tne same should not have been admitted in evidence. It is true that at the close of the case the county attorney made application to withdraw the check from the record; but the damage, if any, had already been done by the examination of the witness concerning the check in the presence of the jury. Upon a retrial of this case, all of this evidence should be eliminated.

The defendant presents other assignments of error, but they are without substantial merit.

For the reasons hereinabove set forth, the judgment of the district court of Custer county is reversed, and this case is remanded to said court, with instructions to grant the defendant a new trial.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    ED. W. SPIVEY v. STATE.
    No. A-9668.
    June 13, 1940.
    (104 P. 2d 263.)

      Dudley, Hyde, Duvall & Dudley, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis E. Morris, Co. Atty., and John P. Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.
   DOYLE, P. J.

Appellant, Ed. W. Spivey, was tried and convicted in the district court in and for Oklahoma county, for having accepted a bribe as a member of the board of education of the city of Oklahoma City, and was sentenced to imprisonment in the state penitentiary for the term of ten years.

The assignments of error are that the court erred in overruling the motion to quash the indictment and in overruling the demurrer thereto; that the verdict of guilty is not sustained by sufficient evidence, and is contrary to law, in that the conviction was had upon the uncorroborated testimony of self-confessed accomplices. Other assignments relate to alleged errors of law occurring, during the trial, in the admission of evidence, the refusal of the court to give to the jury certain instructions requested by appellant; and the giving of certain instructions over the objections of appellant.

The alleged errors have all been examined and such of them as we deem worthy of notice will be considered and disposed of in the order of presentation here.

The indictment in this case is drawn under Penal Code, Sec. 1907, 21 Okla. St. Ann. § 382, which is as follows:

“Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to< act as such officer, who corruptly accepts or requests a gift or gratuity, or a promise to make a gift, or a promise to do an act beneficial to such officer, or that judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that in such capacity he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the laws of this state, and be punished by imprisonment in the state penitentiary not exceeding ten years, or by fine not exceeding five thousand dollars and imprisonment in jail not exceeding one year.”

The statute defining the term “bribe” reads:

“The term ‘bribe’ signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, asked, given or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote or opinion, in any public or official capacity.” Penal Code, sec. 1777, 21 Okla. St. Ann. § 97.

The first contention is that the court erred in overruling his motion to quash the indictment.

In his brief it is said:

“In this motion he takes the position that there was no legal, material, relevant or competent evidence before the grand jury, and that he could not be convicted upon the uncorroborated testimony of these three confessed bribe givers, and that neither one could corroborate the other, and that by eliminating their testimony, the evidence before the grand jury was wholly insufficient to justify the returning of said indictment.”

In the Code of Criminal Procedure the grounds upon which an indictment may be set aside upon the motion of a defendant are clearly defined. Sec. 2937, 22 Okla. St. Ann. § 493.

Before a defendant in a criminal action is entitled to be heard on a motion to set aside an indictment, he must bring himself clearly within the provisions of the Code of Criminal Procedure. State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

The motion to quash does not set forth any of the statutory grounds as provided by section 2937, supra.

Our statute provides:

“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma” etc. Sec. 2, 12 Okla. St. Ann. § 2.

At the common law, an indictment is invalid and may he quashed where it is found and returned by a grand jury not legally constituted, or where there was no legal and competent evidence before the grand jury upon which it was based; and this invalidity might be shown upon a plea in abatement. Hayes v. State, 3 Okla. Cr. 1, 103 P. 1061.

Under the statute, sec. 2, supra, and the provisions of the Code of Criminal Procedure, the motion to quash and set aside an indictment takes the place of the plea in abatement at common law, a plea the subject matter of which may be any objection which could not be properly interposed by a plea in bar.

These provisions do not qualify or change the rule of the common law requiring that an indictment must be found on legal and competent evidence.

The question of the competency or incompetency of accomplice witnesses before a grand jury is not a question that can be raised on a motion to quash the indictment. Whether or not a witness is an accomplice may be, according to the circumstances, a question for the court or jury. Generally speaking, however, it is a question of fact for the jury, but where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251. And see 14 Am. Jur., Criminal Law, Sec. 110.

It may be said in passing that the law prescribes no standard for the strength of corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect. Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

An examination of the evidence taken before the grand jury, introduced on the hearing had on the motion to quash, leads to' the conclusion that, unexplained or uncontradic-ted, it would be sufficient to warrant appellant’s conviction upon a trial upon the indictment. In our opinion this contention is wholly without merit, and the trial court did not err in overruling the motion to quash the indictment.

The second contention is that the court erred in overruling the demurrer to the indictment, for the following reasons:

“(1) That the same does not state facts sufficient to constitute the offense of bribery as therein charged, or any public offense.
“ (2) That said indictment is so indefinite and uncertain that the same does not sufficiently advise the defendant of the nature of the alleged offense therein charged.”

Another ground upon which appellant demurred, and. the only one supported in the brief by the citation of authority and argument, is that he is not an officer within the purview of Penal Code, sec. 1907, supra, and in his brief says: “This section does not cover the board of education or the members thereof, and the defendant is not subject to- prosecution thereunder, and his demurrer to the indictment should have been sustained.” With this contention we cannot agree.

We think this section needs no construction. It is as plain as the aptest collocation of words can make it. It reads in part as follows:

“Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, who corruptly accepts or requests a gift or gratuity or a promise to make a gift or a promise to do an act beneficial to such officer. * * *”

In the case of State v. Sowards, 64 Okla. Cr. 430, 82 P. 2d 324, 325, this court held:

“A ‘public office’ is a right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public, and the individual so invested is a ‘public officer.’ ”

In the case of State v. Womack, 4 Wash. 19, 29 P. 939, the Supreme Court of Washington held:

“A member of the board of education is an executive officer, and comes within the meaning of Code 1881, §§ 879, 880, which provides a punishment for attempting to bribe an executive officer.”

In the case of State v. Loechner, 65 Neb. 814, 91 N. W. 874, 59 L. R. A. 915, the Supreme Court of Nebraska held:

“A member of a board of education of a school district in a city having a population of over 1,500, organized under the provisions of subdivision 14, e. 79, Comp. St., is a ministerial officer within the meaning of the term as used in section 180, Or. Code, providing for the punishment of certain public officers for malfeasance in office.”

In the opinion it is said:

“Prom a careful consideration of the subject in its different aspects, we are constrained to the view, as appears from what has been said, that the defendant belongs to the class of officers denominated ‘ministerial,’ and for that reason is included within the fair import of the language of the section of the Criminal Code under which the indictment was found.
“It is urged by the defendant that the question we are considering has been decided by the Supreme Court of Washington (State v. Womack, 4 Wash. 19, 29 P. 939) adverse to the conclusion we have just reached. We have given that case careful consideration, and do not regard it as conflicting with the views herein expressed.”

Appellant in his supplemental brief cites the case of Sheely v. People, 54 Colo. 136, 129 P. 201, and quotes the eleventh paragraph of the syllabus, which reads:

“Rev. St. 1908, § 1720, making one guilty of bribery who' gives any sum to any ministerial or judicial officer, etc., with intention to influence him, should be strictly construed as against the state and liberally in favor of the accused, consonant, however, with ascertaining the legislative intent.”

The sixth paragraph of the syllabus reads:

“Officers that are neither judicial nor legislative necessarily belong to the executive department of government, and are ‘executive’ or ‘administrative’ officers; those terms being equivalent.”

The seventh syllabus reads:

“The legislative intent should be sought in the ordinary meaning of the words of the statutes, construed in view of the connection in which they are used and of the evil to be remedied.”

In the opinion it is said:

“ ‘Ministration’ in Webster’s Dictionary is said to be ‘the act of ministering,’ and ‘minister’ is defined to mean ‘administer.’ And in the same dictionary one of the synonyms of ‘administer’ is ‘minister,’ and ‘administerial’ is defined as ‘pertaining to administration or to the executive part of the government.’ Now the fact that these executive, administrative, or ministerial officers may and do exercise discretion and judgment in varying degree in the discharge of their administrative duties does not make them the less ministerial; for, if it did, there would be few administrative or ministerial officers. Most of them would be excluded, and would have to be placed in a class that has not yet been defined by the authorities. The administration of government often requires in a large degree the exercise of discretion and judgment. * * *
“ ‘The character of the act does not depend on the amount of discretion confided to the officer. There is much reason for saying that under our Constitution all administrative or ministerial duties are executive in character, as they not only can be nothing else under the Constitution, but they are all acts in the conduct of the government; i. e., the administration of public affairs through and under the regulations prescribed by law.’ In State v. Loechner, supra, the statute under consideration provided that ‘any clerk, sheriff, coroner, constable, county commissioner, justice of the peace, recorder, county surveyor, prosecuting or district attorney, or any ministerial officer’ who was guilty of certain acts should be fined, etc. A member of a board of education of a school district in a city was held to come under the provisions of the statute as being a ministerial officer. The duties of a member of the school board, as related to his district, were analogous to the duties of a county commissioner in this state, as related to his county, as is shown by the following quotation from the opinion: “The members of the school board are unquestionably regarded by statute as the servants or agents of the corporation, selected for the purpose of conducting and managing its affairs in the manner and under the restrictions pointed out by statute. They are an administrative body charged with the duty of administering the law governing, the public schools within the city composing the school district of which they are officers. It is their duty to administer the affairs of the corporation as directed by statute in the exercise of such powers and authority as are vested in them. Doubtless in many instances in the performance of their duties they may exercise a discretion or judgment quasi judicial in character, but this fact alone cannot determine the class to which they belong, or bring them in the category of judicial officers.’ From this the court held that the member was an administrative officer, and proceeded to show that the word ‘ministerial’ in the statute meant the same thing as ‘administrative,’ and that, therefore, the defendant belonged to the class of officers designated as ‘ministerial,’ and came within the statute.”

Penal Code, sec. 2458,21 Okla. St. Ann. § 279, provides:

“The various provisions of this article which relate to executive officers apply in relation to administrative officers in the same manner as if administrative and executive officer were both mentioned together.”

It follows from the foregoing review that a member of the board of education of Oklahoma City is a public officer.

The indictment is full and definite in alleging the things done, and the facts stated include every essential element of the crime of bribery as defined by Penal Code, section 1907, supra. It is clearly sufficient and the trial court did not err in overruling the demurrer thereto.

Several assignments of error are based on exceptions taken to the action of the court in the admission of evidence as to other and alleged independent crimes committed by appellant.

The rule is well settled that evidence of the commission of other crimes is admissible when it tends corrobo-ratively or directly to establish the defendant’s guilt of the crime charged in the indictment on trial, or some essential ingredient of the offense.

In 11 C. J. S., Bribery, page 869, § 14, it is said:

“As bearing on the corpus delicti, evidence of a general conspiracy to secure bribes is admissible. So, it is competent to show the relationship, understanding and common purpose of several defendants. Likewise, as bearing on the corpus delicti, it is permissible to introduce all competent testimony going to show that the person alleged to have been bribed actually received a bribe as charged, or did not receive a bribe as claimed by the defense.”

In the recent case of Boyer y. State, this court held:

“Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses, so related to each other that proof of one tends to- establish the other, or to connect the defendant with commission of the offense charged.” 68 Okla. Cr. 220, 97 P. 2d 779, 781.

The principal question in this appeal is set forth in appellant’s brief as follows:

“Third Proposition: Assuming that the defendant cannot be convicted upon the uncorroborated testimony of Watts, Estes and Smith, and that neither one can corroborate the other, then under the usual test their testimony was not corroborated. Assignment of errors Nos. 1, 5, 6, 7, 39, 40, 41, 42, 43, 47.” and counsel state:
“We will not here review the evidence independent of said accomplices, for the reason that we have in a general way, in our statement, set out the substance thereof, and when the testimony of these three accomplices is eliminated there is nothing left to bring the case within the above rule.” Citing McNack v. State, 62 Okla. Cr. 285, 71 P. 2d 317.

Counsel for the state in their brief state:

“Third Counterproposition: Watts, Estes and Smith are bribe givers, but they are not accomplices in the demanding and receiving of the bribe under the record here, and by express provisions of section 1916, O. S. 1931, 21 Okla. St. Ann. § 391, their cumulative testimony is sufficient to convict.” And in their brief say:
“There is no proof in this record of a conspiracy between witnesses, Watts, Estes and Smith, and the defendant Spivey, Price and Wilkins to- give and receive a bribe in this case. The bribe giver simply acquiesced in the demand of the bribe taker for the payment of the bribe money as an absolute condition to the consummation of the deal for the Northeast high school royalty, based upon a legitimate bid therefor.
“We submit that the testimony of Dodson, Alder, ■Eekroat, Duff and Otto Eose, corroborates the testimony of Watts, Estes, and Smith.
“In addition to- the above corroborative witnesses, we have in this, the Spivey case, the testimony of E. C. Clay, J. Lane Wilson, Dan E. (D. R.) Cummings, Martin Cummings, M. O. Mulvey, R. L. Scott and William Gill.
“Dan E. (D. E.) Cummings and his son, Martin Cummings, were not accomplices of Watts, Estes and Smith in the Northeast high school royalty transaction, but here again, we have the defendant, ¡Spivey, receiving and collecting a bribe of $6,829.50 in connection with his official acts as a member of the board of education. Dan. E. Cummings corroborated Martin Cummings and both were corroborated by M. O. Mulvey, teller in the First National Bank & Trust Company, who cashed the $6,829.50 check for Martin Cummings.
“Here again we have separate and independent evidence showing that this defendant was engaged in a general plan and scheme of bribery, and that the Northeast high school royalty transaction, as testified to by Watts, Estes and Smith, fits perfectly into- said bribery scheme, and was a part of the same, and, therefore, the testimony of Dan E. Cummings, Martin Cummings and M. O. Mulvey corroborates the testimony of Watts, Estes and Smith.”

In 14 Am. Jur., Criminal Law, sec. 108, it is said:

“The words ‘accomplice,’ ‘accessory,’ and ‘aider and abettor’ are often used indiscriminately and interchangeably by courts and textbook writers on criminal law. More accurately, the term ‘accomplice’ is used to define a situation from which certain collateral consequences flow, such as the need of corroboration of the testimony of an accomplice or the competency ¡of an accomplice as a witness. It is commonly applied to a witness; it is not so often used in describing a person accused of crime. Usually, when persons are spoken of by courts in connection with the commission of an offense, they are mentioned as principals, accessories, or aiders or abettors; but if, in the course of the trial, any of these persons is put upon the witness stand and a question comes up as to the necessity of corroborating his testimony, he will be spoken of as an accomplice, although he may in fact be a joint principal, an accessory, or an aider and abettor.”

In 8 Am. Jur., Bribery, sec. 33, it is said:

“In bribery, as in other crimes, the testimony of an accomplice is admissible. It should be weighed by the same rules as those by which the testimony of other witnesses is weighed — that is, by considering the accomplice’s connection with the crime and with the defendant, his interest in the case, his appearance on the witness stand, the reasonableness of his testimony, and its consistency with other facts proved in the case. In many jurisdictions the common-law rule permitting conviction upon the uncorroborated testimony of an accomplice has been changed by statute; and where this is true, a person accused of bribery cannot be so convicted. The test as to whether a witness is an accomplice is whether he himself could be convicted as a principal or accessory.”

The common-law rule permitting conviction upon the uncorroborated testimony of an accomplice has been changed by the statute. The Code of Criminal Procedure provides :

“Sec. 3071', 22 Okla. St. Ann. § 742. 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.”

Penal Code, sec. 2204, 21 Okla. St. Ann. § 953, provides:

“Any person charged with a violation of any of the provisions of this act may be convicted on the uncorroborated testimony of an accomplice, and the judgment thereon shall not be set aside or reversed by reason of the fact that such conviction was based on the testimony of an accomplice.”

This section deals with a violation of the gambling laws. Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238.

The minimum quantity of proof in bribery cases is fixed by Penal Code, 1916, 21 Okla. St. Ann. § 391, providing that:

“In all cases wherein the offering, giving or receiving of bribes is made criminal by the provisions of the penal code, the party to such crime who shall first furnish information in relation thereto', as against the other parties, and in any prosecution therefor, shall testify to the same, truthfully and fully, shall not thereafter be criminally liable therefor, but in such case no conviction shall be had on the uncorroborated testimony of one such witness.”

Instruction No. 9, given in accordance with this section, reads as follows:

“9. You are further instructed that it is provided by the laws of this state that whoever corruptly gives, offers, or promises to any executive, legislative, county, municipal, judicial or other public officer or any person assuming to act as such, any gift or gratuity whatever, with the intent to influence his act, vote, opinion, decision or judgment, is guilty of a crime. It is further provided by law that in all cases wherein the offering, giving or receiving of bribes is made criminal by the provisions of the Penal Code, the party to such agreement who shall first furnish information in relation thereto, as against the other parties, and in any prosecution therefor, shall testify to the same truthfully and fully, shall not thereafter be criminally liable therefor, but in such case, no conviction shall be had on the uncorroborated testimony of one such witness. In this connection, the court instructs you that the witnesses E. P. Watts, S. LeRoy Estes and Roy M. Smith, under their own testimony in this case, are guilty of the commission of the crime of the giving of a bribe and you could not find the defendant Ed. W. Spivey guilty of the offense charged in this indictment upon the uncorroborated testimony of any one of such witnesses. However, if you find from the testimony of others, then one of such witnesses, sufficient corroboration of Ms testimony as leads you to believe that he was telling the truth, then you may consider his testimony in connection with all the other facts and circumstances in the case, and, if from all the testimony in the case, including the testimony of one such Avitness, you find and believe from the evidence beyond a reasonable doubt that the defendant committed the offense charged in the indictment herein, then, you should so say by your verdict.
“In determining the question as to whether the testimony of a witness has been corroborated, you may eliminate his testimony entirely, and then examine all of the remaining testimony except that of such witness, and ascertain from such examination whether there is any evidence tending to' connect this defendant with the offense for which he is charged, in the indictment, and, if there is, then such witness is corroborated. You will apply this same rule of law to the testimony of D. R. Cummings and M. K. Cummings in relation to the purchase of the Northwest high school site. If the defendant was being tried as the receiver of a bribe in connection with the purchase of the Northwest high school site he could not be convicted upon the uncorroborated testimony of either one of such witnesses. If you find that the testimony of one of such Avitnesses has not been corroborated, then, you will not consider his testimony for any purpose whatsoever in this case.
“You will also apply the same rule of law in considering the testimony of the witness J. Lane Wilson and E. C. Clay in connection with the J. Lane Wilson transaction covering lots in Park Place addition to Oklahoma City and you will apply the same rule of law to the testimony of the witness E. P. Watts, and William Eckroat in relation to their attempted purchase of the Webster Royalty; also the testimony of the witness S. LeRoy Estes and Roy M. Smith in relation to their attempted purchase of the Webster royalty. Excepted to by defendant and exception allowed.
“Lucius Babcock, Judge.”

The independent evidence tending to connect this defendant with the commission of the crime charged is in substance as follows:

The testimony of Earl P. Johnson shows the drawing of $6,000 in currency from the bank on the 17th day of September by Smith and the placing of this currency in a certain brief case, thereafter identified on the witness stand by Johnson as the same or a similar one. It shows the delivery of this brief case with currency therein to Smith at the bank and his departure therefrom.

The testimony of Harold Dodson discloses that this brief case was brought to the office of Frank Wilkins, co-defendant, in the possession of Smith and Estes; that there in the office Estes sat upon the brief case and when necessary to change his position tucked the brief case under his arm; that when the witness and Smith, together, left the office, Estes remained there and was still in possession of the brief case.

The testimony of Morris Alder established that on the evening of the same day, the bribe givers and bribe takers came together for some kind of a party at the Biltmore Hotel; that two- rooms were rented and occupied during the evening, and that the extras charged to these rooms were paid - by the defendant, Spivey.

The testimony of William Eckroat that he was to pay a $6,000 bribe on the Webster royalty corroborates the testimony of E. P. Watts relative to- the Webster royalty bribery transaction.

The testimony of Dahl Duff, a reporter for the Oklahoma Publishing Company, was that Spivey made a motion that the Webster royalty be sold to William Eckroat.

The testimony of E. C. Clay, J. Lane Wilson, Dan R. (D. R.) Cummings, Martin Cummings, M. O. Mulvey, E. L. Scott and William Gill was independent evidence, and, therefore, could not he accomplices. Their testimony corroborates the testimony of Watts, Estes and Smith in that it shows that the defendant, Spivey, took a bribe from Clay and Wilson in connection with the Park Place lease, and that the defendant, Spivey, was involved in a general bribery scheme and plan, a part of which was the Northeast high school royalty transaction, as testified to by Watts, Estes and Smith.

The testimony of Dan E. Cummings shows that he was having difficulty in getting the board of education to take action relative to the purchase of certain land. Finally the board, through the defendant, Spivey, permitted Cummings to name a board of appraisers, and about that time and before any price was agreed on, or contract signed, Cummings asked Spivey if he wanted anything out of the deal. Spivey said he did not know, and about a week later Cummings asked Spivey if 10 per cent would be sufficient, and Spivey said he would have to find out; that in a few days Spivey told Cummings that it was not satisfactory, but that they would gO' ahead with the deal; that Otto Eose, president of the board, did not think the 10 per cent was enough. Later, the price of $1,750 per acre was agreed upon; that thereafter, and on November 13, 1937, Cummings received his $73,710 warrant from the clerk of the board of education; and the same morning Spivey called Cummings on the telephone and asked him if he got the warrant. Cummings told Spivey he had gotten the warrant, and then Spivey asked if he could see him that morning; Cummings told Spivey “No”, that he would come or send someone down there; that he would send it down; that he gave his son, Martin Cummings, a check for $6,829.50, with directions to get currency with the check, and give it to the defendant, Spivey.

Dan R. Cummings and Ms son, Martin Cummings, were not accomplices of Watts, Estes and Smith in the Northeast high school royalty transaction. Dan R. Cummings corroborated Martin Cummings, and both were corroborated by M. O. Mulvey, teller in the First National Bank & Trust Company, who cashed the $6,829.50 check for Martin Cummings.

There are many other facts and circumstances in evidence, but the foregoing independent evidence is sufficient to show, or at least tends to show, that Watts, Estes and Smith, accomplice witnesses, were corroborated in regard to appellant’s connection with the commission of the crime charged.

In this connection it is well to remember that the well-established rule in this state is that it is not essential that the evidence corroborating, an accomplice shall cover every material point testified to' by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts, by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense. Moody v. State, 13 Okla. Cr. 327, 164 P. 679; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104; Collins v. State, 28 Okla. Cr. 45, 228 P. 993.

It follows that instruction No. 9, above quoted, was more favorable to appellant than the law warranted; and as a whole the instructions given by the court fully and correctly covered the law of the case, and were as favorable to appellant as the law warranted.

This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence. As we view the evidence in this case, it cannot with propriety and due respect for the law be held that there is an absence of competent evidence on which to base the conviction.

Finally it is urged that the punishment imposed is excessive.

The maximum punishment under the statute for the crime of bribery was fixed by the jury. It is true the sentence is severe, but the crime is grave and one which tends, probably more than any other, to sap the very foundation of all civil government.

It is for the Legislature, not for the courts, to determine what the punishment for crime shall be, provided it is neither cruel nor unusual.

The record fails to disclose that the jury was influenced by passion or prejudice, and upon the record before us we cannot say the jury abused its discretion in fixing the punishment.

Upon a careful examination of the voluminous record, and having considered the assignments of error argued orally and in the briefs, we are satisfied that no exception taken upon the trial is of any force or merit. Our conclusion is that appellant had a fair and impartial trial.

From what has been said it follows that the judgment of the district of Oklahoma county herein should be affirmed and it is so ordered.

BAREFOOT and JONES, JJ., concur.


text:
    L. H. CAPSHAW v. STATE.
    No. A-9685.
    June 19, 1940.
    (104 P. 2d 282.)

      Charles Hill Johns and J. B. Dudley, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis Morris, Co. Atty., and Walter Marlin,- Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

An indictment was presented and filed in the district court of Oklahoma county against L. H. Capshaw, Frank Wilkins, and Ed W. Spivey, charging them with the offense of receiving a bribe; a severance was granted; the defendant L. H. Capshaw waived a trial by jury, was tried by the court, adjudged to be guilty and sentenced to serve a term of four years imprisonment in the state penitentiary, and has appealed.

The defendant Capshaw was a royalty broker in Oklahoma City. The particular offense charged herein alleged that the defendant, together with his codefendants Frank Wilkins, attorney for the board of education, and Ed W. .Spivey, a member of the board of education, received a bribe in the sum of $600 to procure a sale and transfer of certain royalty known as the Wheeler school royalty by the board ;of education of Oklahoma City to one Robert Dalgleish for the sum of $8,100.

This court in the case of Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263, decided June 13, 1940, has passed on most of the legal propositions raised by this defendant in his brief, contrary to the contentions of the defendant.

In Spivey v. State, supra, we held that Spivey was an executive officer under the provisions of section 1907, O. S. 1931, 21 Okla. St. Ann. § 382, which was the statute under which this indictment was presented. We further held that, under the wording of our statute and in accordance with the construction which has been consistently placed thereon, the bribe givers were accomplices of the bribe receivers, and that the general rule as to the necessity for the corroboration of accomplice testimony would apply. That there was, however, sufficient independent evidence, aside from the testimony of the accomplice to sustain the conviction.

One of the issues raised in this case, which was not settled in Spivey v. State, supra, is the contention of the defendant that he, not being an officer, could not be charged in the same indictment with Ed Spivey, who was an officer of the Oklahoma City school district, to wit, a member of the school board, because the Oklahoma statutes set forth two distinct crimes:

(1) The giving of a bribe by a person not an officer.

(2) The receiving ¡of a bribe by a person who is an officer.

The prosecution was conducted upon the theory that the defendant Capshaw was not a public officer, but that lie was a layman who acted conjointly and together with Spivey, who was a public officer, and Wilkins, and conspired with them, and as their agent and part of their general scheme, did ask for and receive a bribe to influence Spivey in his official conduct as a member of the Oklahoma City school board.

Section 1808, O. S. 1931, 21 Okla. St. Ann. § 172, provides:

“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.”

In 8 Am. Jur. 896, under Bribery, it is stated:

“ * * * A person may be guilty of a conspiracy to commit bribery, wen though he could not, by reason of his status, commit bribery.”

In 11 C. J. S., Bribery, § 5, p. 857, we find the same rule in slightly different language, to wit:

“A person who aids and abets another to bribe an officer in violation of law may be held equally guilty with his principal, regardless of whether he was actually present or not at the time the bribe was given. Likewise, one who aids, counsels, or conspires with an officer to- procure a bribe may be guilty, as a principal, of the offense of asking or receiving a bribe.”

In the case of People v. Anderson, 75 Cal. App. 365, 242 P. 906, 909, the District Court of Appeal of California had before it a case very similar to the instant case. In the Anderson Case the defendant, Mporewood, was a lawyer and private citizen, and he, acting for and on behalf of the chief of police and other officers, accepted a bribe to get certain criminal cases dismissed by the chief of police and to corruptly influence certain officers in their duty relative thereto. Moorewood, the private citizen, made the same contention as is made by the defendant in this case. In disposing of that case, the District Court of Appeal of California used the following language:

“Appellant Morewood contends that, as section 68 of the Penal Code only refers to certain officers as being amenable to its provisions, and that as it is neither alleged nor proven that he was an officer of the class mentioned in said section of the Code, nor any officer whatever, he could not be found guilty of bribery as charged in the indictment; therefore the judgment against him cannot stand. It is true that as a private citizen he could not as a principal be guilty of the crime of bribery as defined by the above Code section. But in conjunction with pne or more of the officers mentioned in said section of the Code, and as an accomplice of such officer, he could be guilty of the crime as defined by said section 68, Pen. Code, §§ 31 and 971; People v. Bartol, 24 Cal. App. 659, 142 P. 510; People v. Horn, 25 Cal. App. 583, 144 P. 641; Bishop v. State, 118 Ga. 799, 45 S. E. 614.”

In the case of White v. State, 43 Ga. App. 748, 159 S. E. 897, it was held:

“Private individual who receives money to influence city council, may be guilty pi bribery, if he aids, counsels, or conspires with city official.”

In the case of People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A., N. S., 704, it is stated:

“An intermediary representing one who desires to influence the action of a public board by bribery, who makes the bargain’ with the members and delivers their compensation, is an accomplice with one agreeing to receive and receiving the bribe, under a statute defining accomplices as all persons concerned in the commission ¡of crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, so that his uncorroborated testimony is not sufficient to convict the latter.”

The California statute is identical with the Oklahoma Code in that it obliterated the common-law distinctions between principals in their different degrees and accessories, and declared that all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or not being present have advised and encouraged its commission, are principals.

By reason of the wording ¡of our statute and the construction that has been uniformly placed thereon by this court, in connection with alleged violation of the law and under authority of the above entitled cases, we hold that the defendant, although a layman, could properly be charged and convicted of acting conjointly with a public officer in the offense of receiving a bribe, and that the defendant Capshaw, by reason of asking and soliciting a bribe to influence the defendant Spivey to vote for the delivery of the royalty deed to Dalgleish, did aid and abet the officer Spivey in the commission of the offense of bribery, and that he is guilty the same as the principal Spivey.

It is further urged by the defendant that the state has wholly failed to prove the corpus delicti. That the defendant is charged jointly with Spivey and Wilkins of the offense of receiving a bribe; that the gist of the offense is the receiving of a bribe by Spivey as a public officer to influence his official conduct. That the only proof of corpus delicti in the record is the extrajudicial statements of the defendant that he was receiving the money for the purpose of giving a bribe to Spivey and other members of the school board in order for the royalty transaction to be finally consummated with Dalgleish.

It is the law of this state that to establish the guilt of one accused of a criminal offense, it is necessary that two distinct propositions be proven: First, that a criminal act has been committed, usually designated as coipus delicti; second, that the guilt of such act attached to the particular person charged with the commission of the offense. Coppier v. State, 52 Okla. Cr. 275, 4 P. 2d 700.

We have also held that the corpus delicti in a criminal case cannot be established by the confession of the defendant alone. There must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had. Cherry v. State, 33 Okla. Cr. 37, 241 P. 833; Blakemore v. State, 39 Okla. Cr. 355, 265 P. 152; Boggess v. State, 46 Okla. Cr. 283, 287 P. 764.

In this connection we have also held that it is always necessary, in proving a case against a defendant charged as being an accomplice, to show the culpability of the principal. There can be no1 accomplice until it has been shown that the principal committed the offense, and that the accomplice advised or abetted or furnished the means by which the crime was committed by the principal.

With these principles of law, definitely established, a review of the material parts pf the testimony applicable thereto is herewith presented to see whether or not the state in the presentation of its proof fully met the requirements of the law. It must be borne in mind that at the Conclusion of the state’s case, the defendant demurred to the evidence; and after the same had been overruled, rested his case and based his argument upon the proposition that the evidence introduced by the state, together with the reasonable inferences to be deduced therefrom, is wholly insufficient to show that a crime as charged in the indictment had been committed.

The state introduced the testimony of 16 witnesses, several of wdiom were used by the state solely for the purpose of showing other bribery transactions in the sale of royalty owned by the board of education, in which the defendant Capshaw was involved. This testimony is admissible under the limitations as hereinafter outlined; but, ¡of course, the defendant, if convicted herein, must be convicted on the proof that he committed the particular offense charged against him.

J. G. Stearley testified that he was during all of the time in question the clerk-business manager of the board of education of Oklahoma City. He identified the minutes of the board of education which showed the manner of the handling of the advertisement relative to the sales of royalty on what is known as the Northeast high school, the Webster, the Dewey, and the W'heeler royalty tracts. These minutes, which were introduced' in evidence, show the number and amount of bids received for these respective tracts and the disposition made of each bid.

In this connection, attention is called to the fact that these minutes corroborate certain statements made by the defendant, Capshaw, to Chadwell, Dalgleish, and Pasquella in his negotiations with them towards the pay-off in connection with the Wheeler school royalty.

In the original bid of $6,610 placed by Chadwell through Pasquella, Capshaw came to them and told them that unless they could arrange to make a $1,600 pay-off to the members of the school board, their bid, which was more than $1,000 higher than any other bid which had been submitted, would be rejected along with all other bids. The minutes show that these bids were rejected, which rejection happened after Chadwell refused to make a side payment to Capshaw as requested by Capshaw.

After this bid had been rejected, Capshaw, according to the testimony of Chadwell, Dalgleish, and Pasquella, came to ChadwelPs office and there made a deal with Chadwell whereby he would raise the $6,610 bid by a small amount and pay $1,000 on the side to the members of the school board. The minutes of January 8,1938, disclose that the defendant Spivey made a motion, which was seconded by Mr. Johnson, that the bid of Chadwell which had been submitted in the name of Robert Dalgleish in the sum of $6,750 be accepted. This motion was yoted down five to four; but the three members of the oil and gas committee, to wit: Spivey, Johnson, and Price, all voted to accept the Dalgleish bid.

Exhibit No. 9, which is the minutes of the meeting, of January 6, 1938, shows the submission of a bid in the sum of $8,000 for the Wheeler royalty by H. S. Brimm. Upon a motion being made by the defendant Spivey, this bid was referred to the oil and gas committee.

Exhibit No. 10, which was the minutes of the meeting of Saturday, January 8, 1938, shows the receiving of a bid from Robert Dalgleish for $8,100, and a motion by Mr. Spivey that the bid he accepted and the sale be made provided no higher bid is received and subject to the approval of the transfer papers by the board’s attorney.

Various other minutes were identified and received in evidence in connection with the sale of royalty under the Dewey and Webster school tracts. The details of these minutes will not be set forth at length herein, but it is sufficient to say that these minutes corroborate the testimony of the witnesses concerning the transactions leading up to the sale of the royalty interests under those tracts.

A. Ben Chadwell testified that he was a royalty broker in Oklahoma City; that he was in California at the time of the advertisement by the board of education of the notice of proposed sale of the royalty under the Wheeler school tract; that he prepared a bid in the name of George Pasquella for $6,610 and filed it with the school board; that this sum was more than $1,000 higher than any other bid wThich had been received by the school board for that tract; that he returned from California on December 11th to Oklahoma City; that after this bid was submitted, it, along with all other bids, was referred to the oil and gas committee; that the next day he was approached by the defendant Capshaw with the proposition that he pay Cap-shaw $1,600, which Capshaw said was to be used in making payment to members of the school board for the purpose of getting the bid of Pasquella approved; that he refused to make this side payment, and Capshaw stated that if he didn’t all bids would be rejected; that the bids later were rejected; that Capshaw came to him again and suggested that if he wpuld increase the bid by a small sum and place it in the name of another man and agree to pay $1,000 as side money to Capshaw for the members of the board of education, the bid would be approved and the transfer of the royalty made to him; that he agreed to this deal and submitted a bid in the sum of $6,750 in the name of Robert Dalgleish; that at about that time a man by the name of W. H. Harding submitted a bid of $7,750 for this royalty; that Capshaw told him that he would get Harding to withdraw the bid, and get the school board to allow the bid to be withdrawn and the check which had been deposited by Harding as earnest money to be returned to him; that the bid of Harding was withdrawn the next day, and his check returned to him by the school board. (The minutes of the board corroborate this statement.) That on January 6, 1938, a man by the name pf Brimm submitted a bid in the sum of $8,000 for the Wheeler royalty; that the defendant Capshaw came to him at that time and stated that since the figures had gotten so high, he realized that it would be impossible for him to pay any side money and be the highest bidder; that for that reason he, the defendant Capshaw, was releasing him from any agreement to pay side money to secure this royalty, but for him to go ahead and make whatever bid he could afford to make in order to secure the tract; that in his opinion, if he would bid $8,100, the board would accept the bid; that he told Capshaw at that time that he would place a bid for $8,100; that the next morning he was called by Ed Spivey, the codefendant, over the telephone, in which conversation iSpivey informed him that he had learned he intended to submit a bid in the sum of $8,100 and that if that were true the school board was in session and was ready to accept the bid; that thereupon he wrote out a bid in longhand in the amount of $8,100 and submitted it to the board in the name of Robert Dalgleish; that he was informed about 11:15 a. m. on Saturday that his bid had been accepted, and he accordingly prepared a deed for execution by the board of education, had the same approved by Frank Wilkins, attorney for the school board, and executed by Otto Rose as president of the school board; that when he took the deed to Mr;. Stearley, clerk of the board, it was top late to get into the bank to secure the balance of the money to be paid for this royalty and it was agreed at that time between him and Mr. Stearley that the deed would be left with Mr. Stearley until Monday morning, at which time he, Chadwell, would secure the balance ¡of the money from the bank and deliver it to Stearley for the deed; that the following morning (Sunday) he was again approached by the defendant Capshaw, who related that even though the board had voted to accept his bid, the deed would not be delivered to him until lie had given the defendant Capshaw $600 to be used as pay-off money to pay members of the school board, including the defendant Ed Spivey; that he informed Cap-shaw at that time that he had paid all for the royalty that he could afford to pay, and would not pay one cent of bribery money to him or anybody else to secure the deed; that on Monday morning he took the balance of the purchase price of the royalty to Mr. iStearley, the clerk, and tendered it to Mr. Stearley, who then informed him that Mr. Wilkins had called for the deed that morning to make a further check of some of its provisions; that he called Wilkins about the matter, and Wilkins stated that he was making a further check of the deed and would let him know when he had finished his examination; that he was repeatedly approached by Capshaw during this time, who insisted that he malee an additional $600 pay-off to Cap-shaw for the members of the board before he could procure a delivery of the deed; that he employed an attorney, Kenneth McAfee, to assist him in securing the deed; that McAfee consulted Mr. ¡Stearley, Mr. Wilkins, Mr. Spivey, and Mr. Rose repeatedly, trying to' secure a delivery of the deed; but that he was advised by Mr. Spivey that the deed was being held up because they were expecting a higher bid; that after trying without success for four days to secure delivery of the deed, he finally agreed to pay Cap-shaw the $600 which he was demanding; that he procured four one hundred dollar bills and four fifty dollar bills and placed them in an envelope. That he met Capshaw there at his (Chadwell’s) office in the presence of George Pasquella and Robert Dalgleish, and discussed the method of completing the transaction and securing the delivery of the deed; that it was there agreed that the envelope with the $600 in it would be left with Pasquella, who was to hold it, and as quickly as the deed had been delivered to Mm in Dalgleish, that the envelope with the money in it be delivered to Capshaw; that when this method of handling the transaction was finally agreed upon between him and Capshaw, Capshaw called Frank Wilkins over the telephone and informed him that the deal had been closed and for him to call Stearley and instruct him to deliver the deed to Dalgleish;.that he and Dalgleish then went to the clerk’s office, were delivered the deed by Mr. Stearley, and returned to where Pasquella and the defendant Cap-shaw were waiting; that they there informed them that they had received the deed, and Pasquella handed the defendant Capshaw the envelope with the $600 in it at that time; that Capshaw came to him a day ¡or so later, on two different occasions, and insisted that he give him more money for the reason that he did not secure anything out of the $600 which had been given to- him as all of it had been used on members of the school board.

Robert Dalgleish and George Pasquella detailed the transaction in substance the same as related by Chadwell.

Kenneth McAfee, the attorney, testified that he was employed by Chadwell to help secure delivery of the deed. He related the conversations which he had with Wilkins, Spivey, and Rose concerning the delay in the delivery of the deed; that Rose referred him to' Spivey; and Spivey said the matter was being held up because they were expecting a higher bid.

Various ¡other witnesses, including other royalty brokers in Oklahoma City and other individuals, testified concerning other royalty transactions had with the board of education, in which the defendant Capshaw, acted as go-between. On ¡one occasion three of the brokers, together with the defendant Capshaw, met at Frank Wilkins’ house and had a bitter argument over the proposed payoff in connection with the Webster school royalty. All of these transactions disclose the close, intimate connection between the defendant Capshaw and his codefendants Wilkins and Spivey.

The testimony of Lewis Morris shows that the defendant Capshaw admitted receiving $600 from Chadwell, but he claimed it was a commission.

J. G. Stearley, the clerk, upon being recalled, testified that Chadwell came to him several times between January 8th and 14th and asked for delivery ¡of the deed to him; that he called Ed Spivey on each of these occasions, and .Spivey told him to not release the deed until he was ordered to do sp- by either himself or Mr. Price, another member of the oil and gas committee.

It can be seen from the foregoing that there is no merit to the contention of the defendant that there is no proof of the corpus delicti other than the extrajudicial statements of the defendant Capshaw. When we consider the minutes of the board of education, which bear out in detail everything which Capshaw said would happen, the identification of the checks by the bank officers, which were used to secure the bribe money, together with statements made by Wilkins and Spivey, we find not only, that the corpus delicti has been proven, but there is sufficient independent corroboration of the testimony of the accomplices1 Chadwell, Pasquella, and Dalgleish to sustain the conviction pf the defendant This court has repeatedly held that the corpus delicti may be proven by circumstantial evidence.

The defendant presents the proposition that the court erred in permitting the state over the defendant’s objection to introduce incompetent, irrelevant and immaterial testimony of other alleged offenses by members of the board of education in the absence of the defendant, which related to matters where there was no- possible connection with the defendant. Other similar offenses which happened about the same time and with which the defendant was connected were admissible to prove the general scheme or plan or the intent of the defendants. Spivey v. State, supra. If no connection with the defendant is shown, the testimony with relation to other offenses should not have been admitted. The proof shpws direct connection of the defendant with the Dewey and Webster royalty transactions in which bribes were given. No connection with the Northeast high school royalty transaction was shown.

In this case a jury was waived, and the cause was tried to the court. The defendant Spivey was given ten years by a jury; the defendant Wilkins was given seven years by a jury.

The court herein was very fair to the defendant Cap-shaw. The presumption is that he did not consider the evidence which was inadmissible, but considered only that which had a material bearing on the issues of the case. The sentence of four years given by the court does not appear to be the result of any prejudice towards the defendant; but, on the pther hand, if consideration is given to the sentences meted out to the codefendants Spivey and Wilkins by a jury, the court was very lenient with Cap-shaw.

It is essential to the orderly administration of the affairs of pur government that those in public office obey the laws. Confidence in our government can only be maintained by definitely administering stern and drastic punishment to those public officials whn betray their trust. We do not mean by this that cpurts and juries of this state should go into a hysteria and inflict punishment where the evidence does not justify it. The great majority of the officials of the various municipalities of this state are men of high character, possessed of honesty and integrity. We realize it is easy for accusations against people in public office tp be wrongfully made by disappointed or revengeful people. But where the proof of guilt is clear, as in this case, the guilty ones should be taught that the rights of our citizens cannot be corruptly tampered with and bargained away.

Finding n;o material error in the record, the judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    GLENN BEAMAN et al. v. STATE.
    No. A-9637.
    June 26, 1940.
    (104 P. 2d 260.)

      E. W. Snoddy and L. Z. Lasley, both of Alva, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Bill Gruber, Co. Atty., of Alva, for defendant in error.
   JONES, J.

The defendants Glenn Beaman and Calvin Snyder were charged in the county court of Woods county with the offense of unlawful possession of intoxicating liquor; each of the defendants was found guilty; the defendant Beaman was sentenced to serve 90 days in the county jail and pay a fine of $150, and the defendant Snyder was sentenced to serve JO days in the county jail and to pay a fine of $50. One-half of the costs in the action was charged to each defendant. The defendants were jointly tried and have filed this joint appeal from the convictions against them.

The defendants before their trial filed what is designated a plea in abatement, which in effect is a plea of former jeopardy by reason of a former trial and conviction upon an information charging possession of intoxicating liquor, which grew out of the same transaction for which the information herein was filed.

In connection with this plea, the defendant Beaman introduced as exhibits the affidavit for search warrant, the search warrant to search the automobile of the defendant Beaman, the information filed against Beaman in the county court charging him alone with the crime of unlawful possession of intoxicating liquor, the instructions to the jury in the trial of said case, and the verdict of the jury finding the defendant guilty of said offense.

The testimony of the officers making the search was that on January 5, 1938', they procured a search warrant to search the premises where the defendants lived, at what is generally known in the community as the Dan Johnston property; that they also procured at the same time a search warrant to- search the car of the defendant Beaman. The testimony showed that the officers parked their automobile three or four blocks away from the premises and walked to the Snyder house, where Beaman and Snyder were living. As they approached the Snyder house, they saw Mr. Beaman coming towards his car. Beaman had in his possession a basket containing several pints of intoxicating liquor which the officers seized at that time. They went on into the house, and under the authority of the search warrant which they possessed made a search of the house and found approximately 160 pints of tax-paid liquor in a bedroom closet. The defendant Beaman was charged alone with the possession of the liquor which he had in the basket when the officers approached the premises. The defendants Beaman and Snyder were charged jointly with the possession of the liquor which was found in the house. Snyder and his wife were in the house at the time it was searched. Their defense was that they had rented the room where the liquors were found to one Hood who in turn had sublet to Beaman, and that they had no- knowledge whatsoever that liquor was stored in the closet where it was found by the officers.

Beaman was tried to a jury and convicted under the information charging possession of liquor which was contained in the basket which Beaman held at the time the officers approached the ¡Snyder house. This conviction was affirmed by this court on appeal. Beaman v. State, 69 Okla. Cr. 159, 101 P. 2d 281.

The possession of the defendant Beaman of these liquors was all one transaction. The county attorney had no authority to divide the offense of possession of the liquors in the house from the possession of liquors just outside the house. All constituted one transaction, and one charge of possession only should have been filed. The plea of former jeopardy by the defendant Beaman should have been sustained.

Section 21 of the Bill of Rights of our Constitution, Okla. iSt. Ann., provides: “* * * Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

This is a universally accepted principle of the common law, and this principle has been embodied in the Federal Constitution and in all State Constitutions.

We have held that a person convicted of possession of liquor could not be convicted on another information charging the transportation of the same whisky. Snelling v. State, 41 Okla. Cr. 124, 271 P. 687.

In the case of Hourigan v. State, 38 Okla. Cr. 11, 258 P. 1057, this court held that if an accused in one act or transaction should transport or have the possession of whisky, beer, wine, and alcohol, cei*tainly he could not be punished for each separate item; but the possession of all would constitute but one offense. That in the constitutional provision providing that no person shall be twice put in jeopardy for the same offense, the term “same offense” does not signify the same offense eo nomine, but the same crime, act, transaction, or omission.

The state may not separate or divide an offense into different parts and punish an accused for each of such parts. If the state elects to prosecute an offense in one of its phases or aspects, it cannot afterward prosecute for the same crime, act, or series of acts under color of another name.

The transactions herein all occurred at the same time. The two occurrences cannot be separately charged any more than you could separately charge a man with separate offenses for each pint of whisky which is found on his place, when he has whisky cached at various spots over his premises. All the liquor found at that time constitutes one possession and one offense.

The defendant Snyder not having been charged in the other information, the plea of abatement should not have been sustained as to him.

Other grounds are raised for reversal of this cause by Snyder, but they are without substantial merit. The question as to ¡Snyder’s innocence was a question of fact for the jury; he was found in possession of whisky; he attempted to explain this possession. Evidently the jury did not believe the explanation Snyder gave. This court will not interfere with the verdict of the jury upon disputed questions of fact.

The judgment as to the defendant Calvin Snyder is accordingly affirmed.

The judgment as to the defendant Glenn Beaman is reversed, and said action is ordered dismissed as to the defendant Beaman for the reasons hereinabove related.

DOYLE, P .J., and BAREFOOT, J., concur.


author: PER CURIAM.

text:
    M. T. EPPS v. STATE.
    No. A-9671.
    June 26, 1940.
    (104 P. 2d 262.)
    Mac Q. Williamson, At-ty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for defendant in error.
   PER CURIAM.

The information in this case charged the defendant M. T. Epps with the crime of “communicating venereal disease”, “to wit: syphilis”, to Ruth Epps on or about August 6, 1938. The defendant, on his trial before a jury, was convicted. Motion for a new trial was filed and overruled on December 3, 1938. Thereupon the court sentenced the defendant to serve a term of two years in the state penitentiary at McAlester in accordance with the verdict of the jury.

On June 2, 1939, an appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notices. No briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of communicating a venereal disease. The evidence, though conflicting, is amply sufficient to sustain the judgment and sentence. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the lower court is accordingly in all things affirmed.


author: EURMAN, P. J.

text:
    E. M. COWHERD v. STATE.
    No. A-1093.
    Opinion Filed February 3, 1912.
    (120 Pac. 1021.)
    TRIAL — Instructions—Preponderance of Evidence. It is error for tbe trial'court to instruct tbe jury that, where tbe state makes out a prima facie case, tbe defendant must prove tbe facts upon wbieb be relies for an acquittal by a preponderance of tbe evidence. It is only necessary for the defendant to raise a reasonable doubt of his guilt.
    (Syllabus by tbe Court.)

      Appeal from Superior Court, Muskogee County;

      Farrar L. McCain, Judge.

    E. M. Cowherd was convicted of having liquor in his possession with intent to sell, and appeals.
    Reversed and remanded.

      Crump & Curd, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   EURMAN, P. J.

Upon the trial of this cause the trial court instructed the jury as follows:

“(5) You are instructed that the possession of intoxicating liquor, as described by the information in this case, together with proof of the payment of the special. tax required by the United States of liquor dealers, is prima facie ■ evidence of the intention of defendant to unlawfully sell the same. So if you find from the evidence beyond a reasonable doubt that the defendant on or about the date alleged in the information had in his possession any quantity of intoxicating liquor, and you further find beyond a reasonable doubt that the defendant had paid the special tax required by the United States of liquor dealers for a period of time embracing the date of the alleged offense charged, then you will find the defendant guilty, as charged, unless the defendant proves by a preponderance of the testimony that he had no intention of selling the liquor found in his possession.”

We think that it was error for the court to instruct the jury that the burden was on the defendant to prove by a preponderance of the testimony that he had no intention of selling the liquor found in his possession. The possession of intoxicating liquor and the payment of the United States tax on liquor dealers only made a prima facie case against him. We do not know of any law in this state which requires the defendant to prove any fact necessary to his defense by a preponderance of the testimony. Our statute makes it the duty of the jury to return a verdict of not guilty if they entertain a reasonable doubt of the defendant’s guilt. To sustain the instruction given would be a judicial repeal of this statute. This we have no right or power to do.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


author: FURMAN, P. J.

text:
    H. G. LUTTRELL v. STATE.
    No. A-1198.
    Opinion Filed February 3, 1912.
    (120 Pac. 1021.)
    INTOXICATING LIQUORS — Violation of Prohibitory Law — Evidence. For evidence sufficient to sustain a conviction for having possession of intoxicating liquors with the intent to sell the same, sec facts stated in the opinion.
    (Syllabus by the Court.)

      Appeal from Choctaw County Court; ■ W. T. Glenn, Judge.

    H. G. Luttrell was convicted of an illegal sale of liquors, and appeals.
    Affirmed.

      Spriggs & Warren, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

No exceptions were saved to the instructions of the court, and it is safe to say that they were satisfactory to counsel for appellant. It was proven upon the trial that appellant was engaged in keeping a confectionery in the town of Hugo. His premises were searched by the sheriff, and whisky was found in his possession. One bottle was found in his overcoat pocket, and .two other bottles were found concealed about the premises. Empty whisky bottles were found about the place, and one witness testified having purchased whisky from appellant something like 60 days before the time when the whisky was so found in his possession. This evidence was admitted to show the purpose for which 'appellant had the whisky in his possession. Appellant testified that the whisky which was found in his place was kept there for his own use. This issue was fully submitted to the jury. The testimony is sufficient to sustain the verdict.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYEE, JJ., concur.