text:
    H. H. HAMIT v. STATE.
    No. A-6405.
    Opinion Filed March 2, 1929.
    (275 Pac. 361.)

      Bowling & Farmer, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried in the district court of Garvin county on a charge of murder and convicted of manslaughter and sentenced to serve a term of six years in the state penitentiary at McAlester. Motion for new trial was filed, considered, and overruled, exceptions duly saved, and the case appealed to this court.

The testimony on behalf of the state, in substance, is as follows: Dr. N. H. Lindsay testified as to the effects of the wounds upon the body of the deceased, and stated they were sufficient to produce death.

T. G. Readnour testified he was a brother-in-law of the defendant; that he was a member of the school board of Oak Dale community; that the defendant, Mr. Hamit, the deceased, and Mr. Livingston were also members of the school board; that he, the deceased, and defendant had always been ordinarily friendly; they were neighbors, close together; that he and defendant went to Pauls Valley on the 3d day of July, 1924, in his wagon; that before they got to town defendant had some whisky, “I judged it to be corn whisky; defendant took a drink out of a quart fruit jar, I also took a drink, and John World took a drink of ■it; we arrived in Pauls Valley about noon, put up our team, and went up town; I met the deceased at the Farmers’ Store, and he asked me if Old Hellcat Hamit was in town, and I told him Hamit was in town, and deceased said, ‘let’s hunt him up and get this business straightened up.’ I did not see anything out of the ordinary in the statement of the deceased; I told him I wanted to go down to Carl Ballard’s store a few minutes and I would be back and we could get together pretty soon. When I came up to the Farmers’ Store, Mr. Hamit and Mr. Livingston were there; they were on Charles avenue, running east and west by the side of the Farmers’ Grocery, when I went up the first conversation I remember, Mr. Livingston said he went to the county superintendent and county attorney, and there was nothing we could do about having the boys arrested who had been tearing up the school property until we located who the boys were that were tearing it up. I do not remember how the deceased was dressed; when I went up deceased and I sit down on some sacks and Mr. Hamit kindly set down in the back of a delivery truck; after we got through with this school business, Mr. Livingston said, ‘I know something if I would tell would surprise you,’ and Mr. Hamit said, ‘Why not tell it, and by God you are not the man you ought to be if you don’t tell it.’ Mr. Livingston told him it did not pertain to the school business and Mr. Hamit just laughed and said that was all right then; Mr. Livingston said, ‘I understand you God damn fellows want me off the school board and I am going to quit,’ and Mr. Hamit says, ‘No, I don’t want you off the board; and Livingston said, ‘You said you did,’ and Mr. Hamit said, ‘No, I did not say that,’ and he said you told Readnour the other day, and he said you were going to resign off the board, and he said, ‘I did, you God damn fellows get who you please.’ And defendant toid him to stop cussing him, he had not done anything, and Mr. Hamit told him to go away and let him alone, that he had tried to start trouble with him a number of times and Mr. Livingston said, ‘You God damn you-.’ I did not catch what he said, and they both raised up on their feet at the same time. When Livingston was raising to his feet he said, ‘God damn you,’ and after he got to his feet, ‘God damn you old man, listen,’ and defendant was on his feet by that time. I did not see anything in Mr. Hamit’s hand when he got up, did not see his knife until after he had done the stabbing; when the deceased told him to listen, defendant told him to go away and leave him alone; they were both using profanity; it looked like Hamit just punched him with his thumb and finger and walked past, and he was right in front of him and just stretched out and punched him, and I seen the knife after he turned around. At the time Hamit punched the deceased with his knife I could not tell what Livingston, was doing with his hands; he had some political cards in his hand and was using his hands in making gestures; Livingston did not make any attempt to strike the defendant after the defendant punched him. with his knife; at the time this occurred I was about three feet away from Tom (meaning the deceased). When I started off with Livingston across the street to Wright’s store, the defendant said he would be there when we got back. He shut up his knife and stuck it in his pocket; defendant was standing in front of the store door when we left; when defendant struck the deceased, the deceased stepped back off the curb and asked me to go get a doctor, and said, ‘He got me.’ At the time defendant punched the deceased looked like he just backed off; I could not tell because Mr. Hamit was between me and the deceased. I do not know what the deceased was doing with his hands, he was just standing there and asked me to get the doctor. I took him to Wright’s Grocery Store and put him in a grocery truck and drove to Drs. Johnson & Lindsay’s office. I helped undress the deceased and prepare him for the operation; we found a box of snuff and a lead pencil in his pockets.”

On cross-examination witness stated he and defendant Hamit came to town, unhitched the team and went to the hardware. “It was about 12 o’clock, I went from the hardware store to McArthur’s store; both the defendant and deceased were there when I got there. The Farmers’ Grocery or McArthur’s store was on the corner of the street; when I met Mr. Livingston he asked if Hellcat Hamit was in town, and I told him he was, and he said ‘Let’s get together and attend to this business.’ I saw the deceased and defendant talking and went over to where they were, when I got there we sat down, on some sacks of feed, Livingston was about two feet away from me. Mr. Hamit sat down in the back of a truck or delivery wagon about two feet from us; Mr. Livingston told defendant that the county superintendent said we could do nothing until we found out who the boys were who had been destroying the school property; deceased then mentioned what he knew if he would tell them and the same conversation was practically repeated as given in the direct examination.”

Crockett Scrivener testified, in substance, that at the time of the trouble he was running a store next door to the Farmers’ Grocery and there was a space of about ten feet between the stores. Dorsey Bryant was working for the witness; their attention was directed to loud talking. “When they heard this noise I walked out toward the front, and knew who they were; there was some cursing and loud talking; I was listening to the talking and saw Mr. Read-nour and Livingston standing right straight north of the Farmers’ Grocery Store door; Livingston and Hamit both were standing when I saw them, and I heard him say a time or two, you fellows had better go away and leave me alone, or something to that effect, and used some kind of profanity; I did not hear either of the others say a word; at the time Livingston was not making any gestures, he was just standing there without making any motion that I could see. When I first walked up to the door I saw Mr. Hamit, looked like he had pulled something out of his pocket, and he was talking very loud; I guessed it to be a knife, he opened it up, then shut it, and put it back in his pocket, and the second time he pulled it out again and opened it up; I don’t know just what he said now, he just kindly took a step back and stabbed Livingston; I could not tell for sure what part of Livingston’s body the lick took effect on; when deceased was struck he just kindly caught himself with his hand and put it down in the bib of his overalls and kindly held himself. Mr. Hamit immediately went into the grocery store and said, “Get the law, I will be here.” I did not at any time understand any remarks made by Livingston. The only time I could tell he was saying anything was after he was stabbed he said something to Readnour, and they turned and went across the street. Dorsey Bryant was over at the door; I don’t remember if there was any one else; witness was asked if anything was said at the time of this stabbing or like was struck by Dorsey Bryant. Defendant objected to the question, the court overruled defendant’s objection, and defendant excepted. Why, he just made a remark, he says, ‘Wonder if that damn fool — what is that damn fool standing there and letting that damn fool stab him with a knife for.’ We were standing there watching the parties at the time; when I first saw the parties Readnour was next to me, and Hamit was next; they were standing in a circle; Mr. Hamit and Mr. Livingston were standing pretty close together, I would say he took one step forward and stabbed him; they were about twenty feet from me; after Mr. Hamit put his knife in his pocket he turned and went back to the store.”

Lee McArthur, a witness for the state, testified that on July 3, 1924, he was working in the Farmers’ Grocery; he knew the defendant and the deceased; the first he knew of the difficulty between the parties he heard some loud talking, when he went to the store door Mr. Hamit was talking, he could not tell what the conversation was. “I heard Mr. Hamit talking to Mr. Livingston, and saying, ‘You had better go on and leave me alone.’ When I went out Mr. Hamit was sitting in the bed of the truck with his feet hanging down and Mr. Livingston was standing facing him, talking to him, and Readnour was standing kindly between where I was and Hamit; when I got out to where I could see, Hamit gets up out of the truck and repeats, ‘You had better go on and leave me alone;’ when Mr. Hamit got up Mr. Livingston had to get back a little bit to let him take a step out of the truck; when Livingston approached Hamit repeated, ‘Go on and leave me alone.’ and then he got his knife out; all that I saw was a little motion (indicating) ; Livingston was standing over in front of Hamit at the time Hamit made the motion. I did not notice Livingston’s hands; I would not say what he had in his hands, I don’t remember.”

On cross-examination witness stated he could not tell how close together they were, they were close together; that when Mr. Hamit raised up he just took one step from the truck in the direction of the door; Livingston moved toward the door, more out of the way between Mr. Hamit and the store door. “When I came out Mr. Hamit was telling Livingston to leave him alone; he repeated it twice I believe that I heard; I did not pay any attention to Tom Livingston’s hands, I don’t think he had one of them up, I would have noticed if he had.”

L. T. Butler, witness for the state, in substance testified he was out at the east end of the Farmers’ Grocery, and some one remarked they are having a fuss out there. “I looked down toward where the parties were and saw Mr. Hamit and the man who got killed and a Mr. Readnour; I could hear the old man talking, I could not hear what the others were saying; I mean by the old man, Mr. Hamit, who said, ‘You fellows are trying to start something, ain’t you? I want you to go away and leave me alone, by God you have bothered me enough.’ They talked a little longer with Mr. Hamit, Mr. Hamit was right in front of the door, I think sitting on a bunch of sacks, it might have been a car, when Mr. Hamit got up and turned around their faces were together; Mr. Hamit was facing toward me, not exactly but almost facing me; Mr. Livingston had his back to me, they were saying something I could not understand; I saw the knife in Mr. Hamit’s hand, he just give it a punch that way (indicating) ; he did not draw his arm up, just come straight with it; he did not move at the time he made the punch, he stood still and let his right hand back. Livingston just dr awed back in that way and stood there a little bit and talked to him; I never noticed where Livingston’s hands were at the time Mr. Hamit made the punch; after the old man punched him with the knife, Livingston just turned around right quick and stepped off the curb and put his hand down in the bib of his overalls, and put his right hand in his hip pocket that way, and stood there a while and talked a little bit and then said something, and the old man turned and went to the corner, and went into the store, which was Mr. Wright’s grocery store then.”

On cross-examination witness stated he could not understand what was said between the defendant and deceased, that Livingston got down this way (indicating), right out at the center of the walk and they got pretty close together. “Then is when I saw that defendant had a knife in his hand; Readnour just stood there, and deceased got off the curb and squatted on his left leg and put his hand in the front of his bibbed overalls, and the other hand on his left leg; I could not see anything in his hand; he did not pull a gun.”

Art Campbell, a witness for the state, also testified, in substance, the same as L. T. Butler with reference to what took place at the time of the trouble. Dorsey Bryant was called as a witness for the state, and testified to the same facts as did Lee McArthur as to what took place. Finis Johnson, called as a witness for the state, was also an eyewitness to the trouble and testified, in substance, as to the same facts as did the other witnesses regarding the difficulty. The foregoing is all the material testimony offered by the state necessary to be set out.

The defendant, as a witness in his own behalf in substance, testified as follows: After telling where he had previously lived, and the number of the members of his family, and that he was affected with rheumatism and had lost the sight of one eye, stated that he and deceased were members of the school board of the district in which they lived; they lived about two and three-fourth miles apart; Tom Readnour was also a member of the school board; that he went to Pauls Valley on July 3, 1924, with Tom Readnour, who was his brother-in-law; an agreement had been made by the directors to go to Pauls Valley and see the authorities with reference to some damages that had been done to some school district property; he went in Tom Readnour’s wagon, that after they put the team up they went to the Farmers’ Grocery, and he then went from there down to Mayo’s; he did not remember whether Mr. Readnour was with him or not; he then came back to the Farmers’ Grocery Store and Mr. Readnour told him that Mr. Livingston was looking for him, he said, “Looky now, Hamit, Livingston is going to bring up something.” “I knew Mr. McArthur and the clerks, Lee and Edgar and Art Campbell; when I said Mr. McArthur, I mean Mr. H. C. Mc-Arthur; we came out at the back door and when we got out Mr. Livingston and some man was standing by this feed; Mr. Readnour walked around us and I walked over and set down in the back end of the truck; Mr. Livingston and I had had some trouble before that time; the first time he ever got mad at me, or rather mentioned a word out of the way was about paying for some wood before the wood was put on the ground, I would pay for it; the wood was for the schoolhouse; the next thing he got mad at me about was some one turned him in for making whisky and he accused me of it. Mr. Readnour and Mr. Livingston both accused me of turning them in; no one was present that I remember when he accused me of turning him in; he got mad and said I turned him in and that I was not a gentleman, and I don’t know what all; the first time he got after me I was in town; I told him I did not turn him ■in and he said, ‘I know stinking well you did,’ he said, ‘Readnour said you had;’ once after that we came to town and found we had a surplus of money and if it was not used it would go back to the county or state; we claimed and took <$100.00 out to use for buying wood or repairing or any purpose we needed about the schoolhouse; we left it with the Valley Hardware; before we got up there Mr. Livingston says, ‘Here Hamit, I am needing some money,’ and he says we can hold $40.00 of this out and Readnour will never be none the wiser,’ and he says, ‘Let’s do it,’ and I refused and he got mad and called me a damned old gray headed son of a bitch, and said I was too darned mean for anything in the world, and I told him to go ahead, and leave me alone that I did not want any trouble, and walked off and left him; later he came and asked me to go down to the wagon yard and have a drink with him, I told him I would go with him but I would not drink; we went into the barn and sat down in the manger in one of the stalls; he got his knife out and stepped in front of me and started whittling and says, ‘Now, God damn you, you will sign up for that money right here, you will sign up for it or something is going to come off.’ I told him he could not afford anything like that, and he said I am going to anyhow. By that time I dodged under a plank and picked up a piece of plank and said, ‘Now you put up your knife.’ He put his knife in his pocket and laughed and said he was joking; I went away and left him in the wagon yard, he was fussy and I knew once he got on his horse at Readnours and took his gun and said he was going to kill John Blackie; I was present when he had a fuss with Frank Young, he was cussing him, and talked very low, and I heard Mr. Young tell him to get on his horse and leave there and that right now, that he was tired of being fooled with; I never saw him but what he had a gun, he carried an automatic all the time; I saw him with it a dozen times or more. One time he came to my house and asked me to sign a contract for a teacher, he set down and went into his pocket and got a pistol and laid it on the desk and I told him to put it back in his pocket as I did not want my wife and children to see it. I heard he said he was going to kill me and I went and talked to Mr. Turner, the justice of the peace and asked what about it, and he said he would investigate it and the next time I saw him he said he did not think there was- anything to it.

“He told Jack Snodgrass he was going to kill me; Jack told me Livingston was carrying a pistol for me. Burley Edgmon come by my house one evening after I had had the trouble with Livingston, and told me Livingston wanted to lie down in his wagon and have Edgmon drive up and talk to me, and get to talking about the school district race, and Livingston would raise up and shoot me from the wagon. This was not told to me until after the difficulty. I had taken two drinks of whisky the morning before I had the difficulty with the deceased, the last drink I took was about two miles from Pauls Valley, it was about two and a half or possibly three hours after the last drink before I met the deceased in town; when I come up to the store where the deceased and Read-nour were I went out and set down, and he says I have been up and seen the county attorney and I saw Mr. Hart, and they tell me we will have to find out who the boys were that were destroying the school property before we can do anything, and I said I thought that all the time. Livingston said, ‘I know something that would tickle you damn fellows good, or no, I know something that I ain’t going to tell you damn fellows.’ ‘Well,’ I said, ‘Tom, if it is concerning the school, you ain’t no man if you don’t tell it;’ and he said, ‘It don’t concern the school a damn bit,’ and then I said, ‘it don’t concern me either;’ and he said, ‘You God damn son of a bitch you have been wanting me off the school board for some time. Now I am going to' get off, now damn you men.’ And I says, ‘Tom, I ain’t said nary time that I wanted you off,’ and he says, ‘Yes you have, Readnour says so.’ I says, ‘Readnour tell him that is not so.’ He says, ‘You are a God damned old gray headed son of a bitch. You want to be contrary with me, you are ding donging at me all the way through, and now I am going to have it out.’ And I says, T don’t want no trouble with you at all;’ I think I told him that three or four times, and to go away and let me alone, before the trouble opened; he jumped up first, he was sitting on a sack of feed, and I was sitting in the hind end of the car; he got right in front of me;! he had something, maybe a card in his hand, I don’t know; and after that as soon as he got straightened up he went to his pocket, or started to his front pocket like that (indicating) , and started toward me. Before I could get my knife he thro wed his hand back (indicating), advancing toward me, and when he did that I struck him. When he put his hand back as stated, it looked like it was to his hip pocket, he said, ‘You old gray headed son of a bitch, it had just as well come off here as farther up the creek.’ I begged him to go away and leave me alone, I don’t want no> trouble; when he come up in front of me and kept cussing me and calling me a gray haired old son of a bitch and said it had just as well come off here as farther up the creek, he was about two feet from me; when I struck him he was not more than two feet from me, if that far; I never made a move, just punched him (indicating) ; he advanced toward me and right in front of me; was between me and the store door; I could have walked around and went in if he had not come in ahead of me; I had the knife in my right hand; I got it out of my pocket; when I struck the deceased he jumped back, turned around and went off of the sidewalk into the street; he says, ‘You have got me.’ After he started off he turned around and looked back at me ’ with his hand on his hip pocket, looking straight at me. I walked into McArthur’s store. Mr. Vaught took the knife away from me; he was the jailer at the time. The reason I stabbed the deceased was I thought he was going to kill me, that is just what I thought, and from the threats I had heard I thought that was his intentions; I knew he carried a pistol and most of the time a knife, and I thought it was his intention to kill me.”

On cross-examination the defendant testified in detail as to their going to town with Readnour the morning of the trouble, and the purpose for which they had gone to town; he told about taking some drinks and also stated about Readnour being at the Farmers’ Store and told him to look out, Livingston was liable to bring up something. Defendant stated that when Readnour told him he took it for granted that Livingston was going to try to raise a row; he had been at it for quite a while, trying to raise a row with him but he always kept away from him; they were not the best of friends but would pass and repass. It was not the custom when Readnour, Livingston and myself were together for us to quarrel about something; Livingston often had some grievance; I did not turn Livingston in to the authorities on a whisky charge. Yes, he was not drunk the day we come with the money and he tried to raise a racket with me that time; I did not drink any the time I went to the wagon yard where he cussed me and I come away from him; I did not cuss him every time I saw him; the time he pulled his knife at the wagon yard I did not cuss him, he did not try to strike me with his knife; when Livingston was talking to us at the Farmers’ store T supposed he was cussing both of us, but yesterday Mr. Readnour referred to it as his cussing me, that he was not cussing him at all. I thought Readnour and Livingston were pretty good friends, and I did not hardly know what to think about it; since the trouble Ii did not think he was cussing Readnour, the way Readnour has been toward me, I thought Readnour was a better friend to Livingston than Readnour and I were; I told them both to go away and leave me alone.

“The reason I supposed both of them were in together, prior to that time he had indicated he did not have the proper feeling toward me; he was distant or seemed to be distant, not like he used to be; I never did see the deceased hit anybody but I have seen him make several passes like he was going to; I took him off one time to keep he and Morgan Perry from fighting; they were cussing each other. I was never with the defendant when I did not see the print of a pistol; I never saw the print of the pistol the day of the trouble but he kept his hand on his pocket; nobody touched him until he started to walk across the street and then Readnour took him by the left arm; I could' not say he attempted to pull his hand out of his pocket; he was working his hand up and down, like Mr. Butler told yesterday; he had his hand in his pocket when I struck him; I can’t say how Livingston was dressed. I guess I had on a pair of duck overalls and a blue shirt, that is all I am able to wear; I was not expecting any trouble; defendant was cussing and I don’t know whether I was cussing or not; I stabbed him because I thought he was going to kill me. I stated in my direct examination that I never drawed my knife at all until he made a pass at his pocket, and then I told the jury that I. drawed my knife. I punched him to keep him from killing me as I thought that it was his intention to do it. -I opened and shut my knife one time before I struck him; I did not take my knife out of my pocket and open, it, and then shut it and put it back in my pocket; the deceased lived out there near me ever since I moved to that neighborhood. I don’t remember telling W. H. Parkey a short time after the trouble happened that I did something there, or on that occasion that I would not have done a minute later, or that I would not have done for anything in the world.”

Several other witnesses testified for the defendant as to his previous good character, and detailed statements made by the deceased prior to the fatal trouble, in which the deceased complained of the defendant and made threats against him.

The defendant was recalled by the state after the defense had closed its testimony, and a statement made by the prosecuting attorney that they desired to recall him for further cross-examination. The court held that the testimony had been closed and if they desired to recall the defendant they would have to make him a witness for the state. The prosecution stated they only had two. questions they desired to ask the defendant. The record does not show that the prosecution made the defendant its own witness, but it does show the objection of the defendant to testifying, cláiming his constitutional right. After he was recalled to the witness stand several pages of the record are taken up in this examination, a great portion of it being questions laying the foundation for the purpose of attempting to impeach the defendant, all of which was objected to by the defendant as the examination progressed. After the defendant was excused from the witness stand several other witnesses were called, who attempted to contradict the defendant. Most of the examination was on immaterial points. We have referred to all the testimony of the defense we deem necessary to arrive at a proper decision in this case.

Defendant has assigned 14 separate errors alleged to have been committed by the trial court. The first assignment argued is the court erred in overruling his motion in arrest of judgment. In presenting the motion in arrest of judgment it is urged that the court erred in permitting the state, over the objection and exceptions of the defendant, to put the defendant, H. H. Hamit, on the witness stand and examine him as a witness for the state, thus requiring him to give testimony against himself. Section 2756, C. O. S. 1921, is a follows:

“A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on plea or verdict of guilty, or on a verdict against the defendant on a plea or former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment.”

The record discloses that defendant demurred to the information, which demurrer was overruled and exceptions saved. Upon an examination of the information it clearly appears that the demurrer was properly overruled. Upon further examination of the record we hold that the ground stated in the motion in arrest of judgment are not such grounds as are recognized by the statute for arresting a criminal judgment. Further, it is noticed that the defendant did not incorporate, as a part of his motion for a new trial, the action of the court in overruling his motion in arrest of judgment. If it was desired by the defendant to save the record and take advantage of the action of the trial court in overruling his motion in arrest of judgment, he should have incorporated it in his motion for a new trial. We hold the court did not err in overruling defendant’s motion in arrest of judgment.

It is next urged by the defendant that the court erred in overruling his motion for a new trial. This assignment covers all of the errors alleged by the defendant to have been committed by the court in the trial of his case, including the action of the court in permitting the state to recall him, after he had closed his testimony, for further examination. The defendant contends they had no right to recall him for further cross-examination, and that the state, under the statement of the court, was required to make the defendant its witness, which the defendant contends the state could not do, and compel him to make a witness against himself. When the state recalled him for further cross-examination, the court stated to the prosecution that, if it recalled defendant, it would be required to make the defendant its witness, which the defendant contends the state did not do; he, being the defendant, could not be compelled to give evidence against himself. The defendant in this case took the stand in his own behalf, and when he did so he was in the position of any other witness called in the case, and the state had a right to cross-examine him on matters material to the case. There is nothing in the record to show that the defendant was ordered by the court to answer any question propounded to him that was not proper to be asked on cross-examination. Where the defendant is a witness in his own behalf, great latitude is allowed in the cross-examination.

The defendant urges that he had closed his testimony and the state closed except in rebuttal; that the action of the court in permitting the state to call the defendant back for the purpose of laying a predicate to impeach the defendant was error. Where the defendant had taken the stand in his own behalf, the courts have been very-liberal with the party cross-examining, and we do not find that the court in this instance erred in permitting the defendant to be fully examined. The court may in its discretion permit either the defendant or the state to reopen the case for further testimony and unless a clear abuse of such discretion appears no question is presented for review on appeal. Winfield v. State, 18 Okla. Cr. 258, 191 P. 609; Felice v. State, 18 Okla. Cr. 313, 194 P. 251; Ivey v. State, 21 Okla. Cr. 182, 206 P. 257.

It is next contended that the trial court erred in overruling defendant’s motion for a continuance. The motion for continuance was based upon the proposition that the defendant relied upon the belief that his case would not be tried at the January, 1926, term of court, and the further reason that his attorney had discussed this matter with the county attorney, and also the court, and had advised the court that the wife of the defendant was in poor health and was nervous, and would probably be unable to attend the trial, and in addition to that defendant himself was suffering with rheumatism, and that one of his witnesses, Burley Edgmon, was absent.

In the motion for continuance the defendant did not show that he was unable to secure the attendance of Burley Edgmon at a future term of court. The record discloses that the testimony of the absent witness, Burley Edgmon, taken at a former trial, was read to the jury in this case. No showing was made that Edgmon if present would testify to additional facts than he had testified to in the first trial of this case.

It is urged by the defendant that he had been led; to believe by the trial court that, if his condition was unchanged on the date the case was called for trial, and the defendant was still suffering with rheumatism, his case would be continued. Where the defendant is charged with a crime and his case has been assigned for trial, it is his duty to use due diligence to be ready for trial, and to present to the court in his motion for continuance all the facts necessary to be presented in order to secure a continuance. It is impossible for a court to know several days in advance what the condition of the witnesses or the defendant will be on the date the case is assigned for trial.

It is apparent that the defendant was not injured in any respect by a denial of his motion for continuance on account of his physical condition or the absence of the witness Edgmon. It is not contended that the wife of the defendant was a material witness in his behalf, nor is there any showing made that she was needed in the trial. Considering said motion in its entirety, it cannot be said that the court abused its discretion in denying a continuance in •this case.

It is next contended that the trial court erred in denying the defendant the right to prove threats and specific acts of violence on the part of the deceased. It is disclosed by the record that the defendant attempted to prove by one of the witnesses a threat made by the deceased against the defendant, which was not communicated to the defendant until after the trouble. Uncommunicated threats are admissible for the purpose of showing the condition of the mind of the deceased at the time of the difficulty, for the purpose of showing who was the aggressor. After an examination of the entire record, we hold that the refusal of the court to permit the defendant to prove this uncom-municated threat is not sufficient error to warrant a reversal of this case.

It is next urged by the defendant that the trial court erred in refusing to give the defendant time in which to plead, and also in refusing the defendant’s plea of acquittal of the crime of murder at the former trial of the same case. Defendant admits that he once entered a plea of not guilty to this information. The plea of not guilty was entered before the first trial of the case. The defendant insists that it was necessary for the defendant to plead again. This trial was continued on the theory that the defendant had pleaded not guilty. It is never necessary for a defendant to plead but once to the same charge, unless such plea has been withdrawn. A second plea was not necessary, as the first plea had not been ,withdrawn. Thomas v. State, 17 Okla. Cr. 550, 190 P. 711.

Other objections are urged by the defendant, but in the view we take of this record we do not deem them of sufficient merit to be discussed at length, or to justify a reversal. In this case several parties were present and saw the difficulty, and heard the conversation of the deceased and defendant before the fatal blow was struck that took the life of the deceased. The defendant relied upon self defense, claiming that he believed at the time he did the stabbing that the deceased was attemping to shoot him with a pistol and that it was necessary for him to strike the fatal blow in order to protect his life or prevent him from receiving great bodily harm. It will be seen from an abstract of the testimony set out in this opinion that the deceased and defendant had been neighbors for some time; that they both were members of the school board in their school district; that arrangements had been made for them to go to town on the date of the difficulty to ascertain what should be done with reference to parties who were damaging the school property in the district; that the defendant and Tom Readnour came to Pauls Valley in Readnour’s wagon; after their arrival in town the parties came back to what is known as the Farmers’ Grocery. Store, and the deceased advised the defendant and Read-nour that he had seen certain parties who were county officials, and they had advised him nothing could be done until they learned the names of the boys who had damaged the school property; that a controversy there arose between the deceased and the defendant, words passed between them, and both arose to their feet and were standing facing each other in close proximity; that the deceased stated in substance that it had as well come off here as farther up the creek, and used cuss words, and that he called the defendant “an old gray headed son of a bitch”; and others testified that he said, “God damn it old man, listen.” All the witnesses agreed that the defendant told the deceased to go away and leave him alone. The defendant contends that the deceased put his hand to his hip pocket and that he believed he was going to draw a gun to shoot, as he knew the deceased was in the habit of carrying a pistol. Other witnesses said they could not tell where the deceased’s hands were at the time defendant stabbed deceased. The testimony shows without contradiction that, when the defendant stabbed the deceased, deceased turned and stepped off the sidewalk into the street, still having his hand on his hip pocket, and looked back at the defendant, and that the defendant went into the grocery store. Considering the case in its entirety, it is apparent that no reversible errors were committed in the trial of the case.

The judgment of the trial court is affirmed.

EDWARDS, P. L, and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    S. W. HOGAN v. STATE.
    No. A-6180.
    Opinion Filed March 2, 1929.
    (275 Pac. 355.)

      E. M. Bradley and Harry C. Brownlee, for plaintiff in error.
    Edwin Dabney, Atty. Gen., M. B. Cope, and J. T. McIntosh, for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kingfisher county on a charge of violating the banking law, and was sentenced to pay a fine of $5,000 and to serve a term of two years in the state penitentiary.

The charge is based on section 4128, Comp. Stat. 1921. Numerous assignments of error are set out in the motion for new trial and the petition in error and argued in the very voluminous briefs, several of which will be separately referred to in the course of this opinion.

Considered in logical order, the first contention is that-the court erred in overruling the demurrer to the information. The demurrer is on the ground that the information is duplicitous and does not state sufficient facts to constitute a public offense. The information in part charges:

“* * * That * * * S. W. Hogan * * * did then and' there, unlawfully, wilfully, knowingly and feloniously permit and connive at and was accessory to the receiving and accepting on deposit in said bank from one A. L. Wright, the sum of $82.58, in money, when said bank was insolvent and the said defendant then and there knew said bank was insolvent. * * *”

Defendant asserts that the receiving and accepting of a deposit is a separate offense from being accessory to or permitting or conniving at the receiving of a deposit, citing King v. Armstrong, 9 Cal. App. 386, 99 P. 527; State v. Warner, 60 Kan. 94, 55 P. 342; Collman v. State, 161 Ark. 351, 256 S. W. 357; Ex parte Smith, 33 Nev. 468, 111 P. 930; State v. Furth, 82 Wash. 665, 144 P. 907.

The state contends that only one offense is charged, committed by one act and having but one punishment, citing Taylor v. State, 4 Okla. Cr. 468, 111 P. 1000; Clifford v. State, 29 Wis. 327; McClure v. People, 27 Colo. 358, 61 P. 612; State v. Sattley, 131 Mo. 464, 33 S. W. 41; State v. Nelson, 29 Me. 329; State v. Price, 11 N. J. Law, 203; Wilkin v. State, 121 Ark. 219, 180 S. W. 512,

In the case of McClure v. People, supra, the court said:

“In a prosecution against a bank president, under Mills’ Ann. St. § 222, providing that any bank president who receives or assents to the reception of a deposit with knowledge of the bank’s insolvency is guilty of larceny, held, that an information under such statute was not invalid by reason of the fact that it charged the receiving and assenting to the reception of a deposit in one count.”

In the case of Wilkin v. State, supra, the court held:

“That an indictment charged in the same count that defendant knowingly received and accepted a check on deposit and knowingly permitted a check to be received and accepted on deposit when the bank was insolvent did not render it demurrable; the two acts charged constituting one offense in violation of Kirby’s Dig. § 1814, which defines such offense and prescribes a penalty therefor.”

In the body of the opinion this language is used:

“We do not think the court erred in overruling the demurrer. This is not a case of an indictment charging in the same count two separate and distinct offenses for which different punishments are prescribed. The indictment charges the commission of but one offense. The act of knowingly receiving and accepting a deposit and knowingly permitting it to be received and accepted constitutes the same offense. It is true it may be committed in a different mode, but the punishment is the same, and the same character of testimony is necessary in each case.”

Davis v. State, 40 Okla. Cr. 231, 267 P. 674, and authorities there cited, sustain in principle the state’s contention.

This question was referred to in Hudson v. State, 37 Okla. Cr. 290, 258 P. 352, in which this court sustained an information substantially in the form of the information here. It appears, however, from the authorities cited in the supplemental reply brief of defendant here, that this court was in error in the Hudson Case in suggesting that certain decisions there cited in the brief of plaintiff in error and also' cited in this case were rendered prior to the enactment of the statute abolishing the distinction between principals and accessories; in that particular there seems to be no substantial difference in the statutes of Kansas, Nevada, and Missouri from the statute of this state. Section 1521, Comp. Stat. 1921. The fact, however, that those opinions were under a statute of principal and accessory substantially the same as ours, does not require that we recede from the rule announced in the Hudson Case. The offense defined by section 4128 is the receiving deposits in an insolvent bank. The offense is committed by receiving the deposit or by being accessory to or by permitting or by conniving at the receiving. The offense may be committed by any or all the ways enumerated in the statute.

It is next argued that the court erred in overruling defendant’s application for a continuance. Upon this assignment, it is urged that the court could not pass properly on this question unless defendant were personally present. Certainly the defendant must be personally present at the trial. Sections 2641, 2754, Comp. Stat. 1921. But the trial does not begin until a jury is called into the box to be examined on their qualifications. 16 C. J. 781; Simmons v. State, 4 Okla. Cr. 490, 112 P. 35; Caples v. State, 3 Okla. Cr. 73, 104 P. 493, 26 L. R. A. (N. S.) 1033. The defendant need not be present when matters affecting the case but not a part of the trial are passed upon. 12 Cyc. 526, 754; 8 R. C. L. 91; Philips v. State, 10 Okla. Cr. 353, 136 P. 776. This assignment is, further, that defendant was not given time to procure his witnesses. Without reviewing the record upon this point, it is clear that no sufficient diligence is shown. Complaint is also made that defendant entered his plea of not guilty on October 14, 1925, and the case was set for trial on October 15, 1925. The information in this case was filed on November 25, 1924. Thereafter defendant was arraigned, but the record does not disclose the date — presumably on April 24, 1925, as on that date a stipulation for continuance was made by the county attorney and the counsel for defendant. On September 7, court convened and the cases not disposed of were assigned for trial, including this case for October 12. The defendant was not present in person at the time, and for that reason his plea was not taken. The case was not reached on October 12, and on October 14 a demurrer to the information was filed and overruled and the case reassigned for October 15. It was then suggested to the trial court that defendant had not entered his plea, and the plea of not guilty was entered. Defendant then applied for a continuance for the reason that ten days had not intervened between the entry of the plea and the day for trial. The denial of this application, he asserts, is error requiring a reversal, citing Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Jacobs v. State, 29 Okla. Cr. 140, 232 P. 861. The Westbrook Case was a death penalty case; the offense was committed on February 7. Defendant was arraigned on March 6 and given 24 hours to plead. On March 7 a demurrer was filed, which was overruled/and the trial set for March 14. On March 13, defendant filed an application for a commission to take depositions, which was overruled and on March 15 the case went to trial. This court held that defendant was entitled to sufficient time in which to take depositions and to prepare for trial. However, this court did not reverse the case, but modified the judgment from death to imprisonment for life. The court in this opinion did say that:

“* * * No felony case should be set, over the objection of defendant, within ten days after his plea is entered.”

The Noel Case was also a death penalty case. Only two days intervened between defendant’s arraignment and his trial, and it is held that he was not allowed the time reasonably necessary to procure the attendance of his witnesses. The case is reversed, however, for the reason that the judgment fixed a shorter period for carrying into execution the death penalty than that required by law. The Jacobs Case was a misdemeanor, and it is there held that when a defendant is arraigned and plea entered, the case is at issue, and stands for trial, unless it is made to appear to the court that accused requires further time to prepare his defense.

There is no statute fixing the time in criminal cases which shall intervene before a case shall stand for trial after arraignment and plea of not guilty. A reasonable time must be allowed. What is a reasonable time will depend on the circumstances in the particular case. In this case defendant had eleven months from the time of his apprehension until the case went to trial. He was arraigned some six months prior to the time of his trial. Apparently it was an inadvertence that his plea was not entered long before the time fixed for trial. Counsel for both the state and the defendant proceeded as if the plea of not guilty had been entered. A continuance had been stipulated in April. No objection was made, on September 7, when the case was assigned for trial on October 12. On October 14, the application for continuance on account of the absence of witnesses was filed, prior to any suggestion that the plea had not been entered. Defendant had ample time to prepare, and under the circumstances shown it was not prejudicial error to assign the case before the formal plea of not guilty was entered.

Defendant further assigns as error remarks of the trial judge in the presence of the jury. Some colloquy occurred between the judge and counsel at several times immediately preceding and during the course of the trial. In this connection, it may be well to state that the case was closely tried; both the state and the defendant were well represented; defendant’s counsel objected to a great many items of evidence and contested closely the legal questions that arose. The judge in several instances explained his ruling or stated his views in ruling ;on an objection. As we have heretofore said, it is the better practice for a trial judge to rule without assigning a reason or explaining his ruling in the hearing of the jury, as it sometimes occurs that his words may convey to the jury an impression of the opinion of the judge. We have examined the record under this assignment, and are of the opinion that there is no substantial error in the remarks complained of.

Complaint is next made of the court’s instructions. This case being somewhat technical, the instructions are lengthy. Exceptions are taken to practically all of them, and each is discussed at length in the briefs. We deem it unnecessary to review separately the various assignments relating to the instructions. Some of them are erroneous in some particulars, but in the main the errors are not important; they fall under the harmless error statute. Section 2822, Comp. Stat. 1921.

The eighteenth assignment is directed to the court’s refusal to give defendant’s requested instruction No. 1, which states the law requiring corroboration of the testimony of an accomplice. Section 2701, Comp. Stat. 1921. I. Stone was one of the state’s principal witnesses. He was a director of the bank at the time it failed; his testimony as to the insolvency of the bank was very material. He signed the reports of the bank from time to time, and, owing to his relation and connection with the bank, his testimony must have impressed the jury strongly. He testified in substance that practically all of the notes held by the bank were worthless. It was shown that he knew practically nothing of the affairs of the bank or the management until after it was closed, as he was not active in the bank but conducted a drug business; that he did not pass upon any of the loans of the bank as they were made. Various other witnesses also testified as to the value of the assets of the bank. Since he was a director with duties fixed by law (sec. 4119, Comp. Stat. 1921), it must be held as a matter of law that under the broad provisions of section 4128, Comp. Stat. 1921, he was an accomplice of defendant. The question then presents itself, Is it error requiring a reversal for the court, under such circumstances, to refuse a request for an instruction on the law requiring corroboration of the testimony of an accomplice? It is settled by many decisions of this court that where the state relies on the testimony of an accomplice to secure a conviction, it is imperative that the trial court, if requested, instruct the jury that they cannot find the defendant guilty upon the testimony of such accomplice unless he is corroborated by other evidence which tends to connect the defendant with the commission of the offense, and that the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Logan v. State, 23 Okla. Cr. 316, 214 P. 944; Hewett v. State, 38 Okla. Cr. 105, 259 P. 144.

For the reasons assigned, the case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CHARLES SANDERS v. STATE.
    No. A-6388.
    Opinion Filed March 9, 1929.
    (275 Pac. 354.)

      W. R. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Oklahoma county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $60 and to imprisonment in the county jail for a term of 30 days.

The judgment was entered on May 25, 1926, and the appeal was lodged in this court September 23, 1926, 121 days after the judgment and sentence. Section 2808, Comp. Stat. 1921, requires that an appeal from a conviction for a misdemeanor be filed within 120 days, and, where an appeal is not filed within the time fixed by law, this court acquires no jurisdiction. Section 884, Comp. Stat. 1921, is as follows: “The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded.”

Applying the foregoing section of the statute, there were 6 days in May, 30 in June, 31 in July, 31 in August, and 23 in September — a total of 121 days. The 120th day, to wit, September 22, 1926, did not fall on a Sunday.

The attempted appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    HUNTER LEE REVIS v. STATE.
    No. A-6456.
    Opinion Filed March 9, 1929.
    (275 Pac. 351.)
    Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was tried in the district court of Oklahoma county, and by a jury found guilty of manslaughter in the first degree and sentenced to serve a term of four years in the state penitentiary at McAlester. Motion for new trial was filed, considered by the court, and overruled. The defendant has appealed to this court. The information properly charged the defendant, Hunter Lee Revis, alias George Revis, with murder.

The defendant sets out numerous grounds of error, but argues and cites authorities to support only the fourth and fifth grounds of error.

The fourth ground of error is as follows:

“Improper conduct on the part of the jury in arriving at a verdict in this, to wit: That while the jury was in their jury-room and while considering their verdict and before part of the jury would consent to return the verdict herein the said jury while in their jury-room prepared a certain written instrument in the nature of an agreement and recommendation to the Governor of the State of Oklahoma, recommending executive clemency for said defendant, which said statement was delivered by said jury in a body to the attorneys for said defendant. The original statement is attached hereto, marked Exhibit A, and made a part of this motion that said statement was signed by said jury while in their jury-room, and while considering their verdict, and on account and because of which the said verdict was reached.”

Defendant’s fifth ground of error is as follows:

“Misconduct of the jury in arriving at their verdict in that while said jury was considering their verdict and while in their jury-room certain members of the jury discussed the character and reputation of the defendant and the defendant’s wife who was a witness in said cause which character and reputation of said defendant and defendant’s wife not having been placed in issue during the trial of said case.”

Since both of these grounds allege misconduct of the jury, they will, be considered together by the court as amounting to only one ground of error; that is “That the court erred in overruling defendant’s motion for new trial on account of misconduct of the jury.”

Under the stated facts testified to by the defendant himself in connection with the testimony of one A. A. McCarty, the defendant was guilty of murder, and under the statement made by the defendant alone, he was guilty of manslaughter. This court has repeatedly held that where the defendant in his testimony makes out a case against himself of manslaughter, and the jury has given him the lowest sentence under the law, this court will not reverse the case, regardless of the errors that may have occurred during the trial, except it be for errors that are fundamental, and without such errors conviction could not be had.

In the case of White v. State, 4 Okla. Cr. 143, 111 P. 1010, this court held:

“To reverse a conviction where a defendant is clearly guilty, upon a mere technical error of the trial court, which could not have injured the defendant, would be a prostitution of reason and an outrage upon justice and an act of treason to the law-abiding people of the state.”

In the case of Maynes v. State, 6 Okla. Cr. 487, 119 P. 644, this court held:

“When the testimony of an accused on trial clearly shows his guilt, an erroneous instruction given by the court limiting the application of the law is not sufficient to justify a reversal of the judgment.”

In the case of Allen v. State, 13 Okla. Cr. 395, 164 P. 1002, L. R. A. 1917F, 210, this court held:

“Where the guilt of the appellant is clearly and conclusively established, and there is no good reason to believe that upon a second trial an intelligent and honest jury could, or would, with reason and propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error. * * * Where the evidence is so conclusive and convincing of the guilt of the defendant of the degree of crime of which the jury found him guilty, before this court may set such a judgment of conviction aside it must clearly appear that the defendant has been deprived of some constitutional or statutory right, or that the errors complained of have probably resulted in a miscarriage of justice.”

In the case of Foreman v. State, 38 Okla. Cr. 50, 259 P. 176, Syl. 5, this court held:

“In a homicide case where the trial court erroneously admits a dying declaration without sufficient preliminary proof to render it competent, the admission of such dying declaration is harmless error, where the defendant is convicted of manslaughter in the first degree and the minimum punishment is assessed, and where his own testimony clearly shows him to be guilty of manslaughter in the first degree.”

Considering now the other phase of the defendant’s complaint, namely, misconduct of the jury in arriving at a verdict: This court has held in numerous cases that a jury is not permitted to impeach its own verdict by affidavit, deposition, or oral testimony.

In the case of Baumle v. Verde, 50 Okla. 610, 150 P. 876, this court held:

“Upon grounds of public policy, trial courts will not receive the affidavits, depositions, or oral testimony of jurors to impeach their verdict. * * * It appears from the record that in support of the motion for new trial, and to sustain this assignment, the plaintiff in error presented affidavits from a number of-the jurors as to the method in which they arrived at the verdict, and a number of the members of the jury were called and examined before the court orally by counsel, and after considering the affidavits and the oral testimony of the jurors the court found that the verdict had not been arrived at by chance or by casting lot, and denied a new trial. This does not seem to be error. The method employed by counsel to impeach the verdict in this instance has; been expressly disapproved by the repeated decisions of this court, beginning with Colcord v. Conger, 10 Okla. 458, 62 P. 276, and extending to Glockner v. Jacobs, 40 Okla. 641, 140 P. 142. In Colcord v. Conger, supra, the court quotes from Thompson on Trials, sec. 2618, as follows: ‘Upon grounds of public policy, courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror, will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it, or that they misunderstood the charge of the court, or that they otherwise agreed on their verdict by average or lot.’ ”

In the case of Hayes v. State, 35 Okla. Cr. 19, 247 P. 111 this court says:

“The verdict of a jury cannot be impeached by the affidavit or oral testimony of a juror. * * * The defendant sought to impeach the verdict by the^ affidavit and oral testimony of a juror to the effect that another juror knew two of the witnesses who testified in support of defendant’s alibi, and that this juror stated, during the deliberations of the jury, that these witnesses were not entitled to credence. If any such statement was made or considered, the verdict could not be impeached in this manner. Keith v. State, 7 Okla. Cr. 156, 123 P. 172; Craddock v. State, 13 Okla. Cr. 724, 167 P. 331; Brantley v. State, 15 Okla. Cr. 6, 175 P. 51.
“In the Keith Case a quotation is found from an opinion written by Chief Justice Mansfield: ‘As was well said by Chief Justice Mansfield, if a verdict can be impeached by the affidavit or testimony of a juror, then in any criminal case tried, * * * no matter how conclusive the testimony and how regular the trial may have been in other respects, it will be in the power of one juror to secure a reversal of a conviction, and at the same time do it in such a manner as to conceal the purpose for which it was done, and thereby exempt himself from punishment.. * * * this can be done, it places in the hands of a defendant the power to set aside any verdict that might be rendered against him,provided only he can find a-juror who will be willing to carry out the program.’ ”

In the case of Brantley v. State, 15 Okla. Cr. 6, 175 P. 51, in the syllabus this court says:

“Affidavits or oral testimony of jurors are inadmissible to impeach their verdict, and affidavits of the def^fidant, or any other person, of alleged misconduct of a juror, upon information derived from particular jurors, are inadmissible to impeach the verdict.”

In the ease of Overton v. State, 7 Okla. Cr. 203, 123 P. 175, in the body of an opinion by Presiding Judge Furman this court said:

“* * * The third and last proposition submitted in the motion for a rehearing is that misconduct occurring in the jury room while the jury was^ considering its verdict can be shown by the affidavits or testimony of the jurors. This is not the law in Oklahoma. See Colcord v. Conger, 10 Okla. 460, 62 P. 276; Petitti v. State, 2 Okla. Cr. 131, 100 P. 1122; Spencer v. State, 5 Okla. Cr. 11, 113 P. 224; Vanderburg v. State, 6 Okla. Cr. 486, 120 P. 301; Keith v. State, ante [7 Okla. Cr. 156] 123 P. 172. Every jury is sworn in each case submitted to it to render a true verdict according to the law and the evidence. After a verdict has been rendered, and a juror files an affidavit or testifies that he was influenced by anything in arriving at the verdict except the law and testimony, he swears to his own dishonor, and stultifies and impeaches himself, and he informs the court, under oath, that he has been guilty of the grossest contempt in ignoring and disregarding the instructions of the court. Instead of being encouraged to file such affidavits, or to give such testimony, when any such attempt is made, the juror should be severely punished for contempt of court. It matters not how any other court in any other state may have decided this question, we are not willing to place the administration of justice in Oklahoma at the mercy of such men. While we dislike to render a judgment which will result in punishment to any human being, yet we cannot avoid the duty imposed upon us to so construe the law as to protect the honest, hard-working and law-abiding people of the state. Laws are enacted and courts are established to punish and thereby suppress crime. It is no part of our duty to hunt for excuses to turn guilty men loose. We must seek to protect society, and not criminals. * * *”

The motion for a new trial on the ground of misconduct of the jury in arriving at the verdict was properly overruled by the trial court. The defendant does not complain of the insufficiency of the evidence to support a verdict of the jury. The evidence was not only ample to support a verdict of the jury, but it was also sufficient to support a verdict of murder, and the defendant might well have been given a life sentence. He is indeed fortunate to receive so light a sentence as four years.

The motion for a new trial having been properly overruled and no sufficient errors of law appearing in the record to justify a reversal of the case, the judgment is affirmed.

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


text:
    HOWARD A. TUCKER v. STATE.
    No. A-5806.
    Opinion Filed March 9, 1929.
    (275 Pac. 382.)

      J. I. Howard, A. M. Beets, and O. K. Wetzel, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of criminal libel and his punishment fixed at a fine of $100.

The information, in substance, is that at the time charged defendant was the editor of The Record; that he did wrongfully and maliciously publish an article in said paper concerning one Warren K. Snyder, which is set out in full, which is, in substance and effect, that said Snyder was an attorney at law, and, as such, had agreed to accept employment from defendant and said paper in certain lawsuits threatened against them, and had entered his appearance in court and announced that he would defend The Record’s side of the case, and that thereafter he accepted a fee from the other side to bring suit against The Record, and turned traitor to defendant and The Record, and, for that reason, was subject to prosecution and trial for disbarment from further appearing in all courts of record; that defendant published the article with intent to expose said Snyder to public contempt, ridicule, and obloquy; that same was false and untrue and was intended to deprive said Snyder of public confidence and injure him in his occupation as a practicing attorney.

Under his first assignment defendant contends that, in order to constitute a criminal libel, the publication must be a false and malicious publication which tends to cause disorder, riot, or breach of the peace, likely to stir the person libeled to acts of violence — that is, it must affect the public as by corruption of the public morals or inciting to violation of the criminal law — and that the information in this case is insufficient, citing: Palmer v. Concord, 48 N. H. 211, 97 Am. Dec. 605; People v. Eastman, 188 N. Y. 478, 81 N. E. 459, 11 Ann. Cas. 302; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A. L. R. 1468; Crane v. State, 14 Okla. Cr. 30, 166 P. 1110, 19 A. L. R. 1455.

Under our statute the definition of civil libel (section 495, Comp. Stat. 1921) and the definition of criminal libel (section 1800, Comp. Stat. 1921) are identical, and as follows:

“Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.”

It will be seenj that the essential elements of the offense are that the publication be false and malicious, and that it expose the person libeled to public hatred, contempt, ridicule, or obloquy, and this is so whether the libelous publication charges the person libeled with a criminal offense or not. Where a statute defines the offense, it is necessary only that the alleged libelous publication comes within the statutory definition. State v. Elder, 19 N. M. 393, 143 P. 483; State v. Sheridan, 14 Idaho, 222, 93 P. 656, 15 L. R. A. (N. S.) 497; People v. Fuller, 238 Ill. 116, 87 N. E. 336; State v. Hosmer, 72 Or. 57, 142 P. 581. Lawton v. Territory, 9 Okla. 456, 60 P. 93. The Legislature in adopting the same definition as for civil cases in defining the crime of libel placed emphasis on the tendency of the publication to harm the individual libeled rather than upon its tendency to disturb the public peace. In the instant case the entire trend of the article is a criminal libel. The publication has a tendency to harm the individual libeled and also to incite to a breach of the peace, as it is clear that it -charges the person libeled with a breach of duty, as well as of professional ethics and probity, and tends to subject him to public contempt. We are clearly of the opinion that the information is sufficient.

Under the second assignment, it is contended there is not sufficient competent evidence to prove defendant published the libelous article. The proof is not direct that defendant made the publication in question, but circumstances proven so clearly disclose that defendant was the editor and publisher of the paper that we deem it unnecessary to enter into any particular discussion upon this point. It is the same newspaper as that of which defendant had been the editor as shown by the record and shows to have been copyrighted by him. There can be no question about the fact of publication by him. The defendant did not take the stand and offered no testimony. The defendant was fairly tried and the punishment assessed lenient under the circumstances.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    EVERETT DICKOVER et al. v. STATE.
    No. A-6381.
    Opinion Filed Jan. 5, 1929.
    Rehearing Denied March 9, 1929.
    (279 Pac. 514.)

      Wright & Gill and Wm. H. Lewis, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of having possession of a still, and were each sentenced to pay a fine of $800 and to serve a term of 60 days in the county jail..

The record discloses that Clarence Trosper owned a tract of about 10 acres southeast of Oklahoma City on which there was a barn. He rented it to defendant H. C. Wallace, ■ who was to pay $25 per month, and who paid that sum on December 19, and again on February 1. On February 13, Trosper went to the place and found in the barn a still apparently in good shape and ready to operate, with other paraphernalia at hand. At that time defendant Dickover was on the premises and endeavored to get Trosper to transfer the lease to him, which Trosper declined to do. Certain officers then went to the premises and found the still, as stated by Trosper, and in addition a large quantity of whisky mash. Defendant Wallace testified that he had subleased the premises to Dick-over, and had moved away, and had no connection with the still. Dickover testified that he had taken over the lease from Wallace, that the furniture there belonged to him, that he did not know who the still there belonged to.

Defendants contend the evidence is not sufficient to sustain the verdict and judgment. Without discussing the probative force of the evidence, we are of the opinion that it amply sustains the verdict and judgment.

Also it is argued that the court erred in his instruction No. 3. This instruction, in substance, tells the jury that the information raises no presumption of the guilt or innocence of defendants, but is merely filed for the purpose of advising defendants of the nature of the crime charged against them, and for bringing them to trial. This instruction, while not aptly worded, merely states that no presumption arises by reason,, of the filing of an information; that the purpose of the information is to apprise the defendants of the charge against them, and; of putting them upon trial. The instruction is not prej-udicially erroneous.

The case is affirmed.

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


text:
    C. I. OLDHAM v. STATE.
    No. A-6417.
    Opinion Filed March 9, 1929.
    (275 Pac. 383.)
    Hays Dillard, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county, Okla., upon a charge of stealing certain personal property, to wit, oats of the value of $15. The jury returned a verdict of guilty and assessed the punishment at a fine of $50 and confinement for 30 days in the county jail.

The defendant in his brief says: “There is really but one proposition that needs to be presented and that is: That the trial court erred in admitting incompetent, irrelevant and immaterial evidence over the objection of the plaintiff in error, defendant below, anchio which ruling of the court below, exceptions were duly saved at the time.”

The uncontradicted facts concerning the case are that the defendant lived at Waurika, and on the night the oats in question were stolen, the defendant was in the community of Best, from whom the oats were taken; that the car, in which the defendant made the trip, had the Lee Puncture-Proof tires; and that at the time of the arrest of the defendant there were oats in his car scattered on the floor and also oats of the same kind in the barn of the defendant, and that in said barn there were two kinds of oats; one kind being of the same as those stolen from Best.

The proposition complained of is that the state was permitted to show that at the same time, on the same night the oats were stolen, some harness and bridles had been stolen from one Pfieffer. The stolen harness was found by the sheriff with a search warrant at the same time the oats were found, which stolen harness was identified by the owner, Pfieffer

The state made no attempt to prove that the defendant herein had stolen the harness and other things therein found, but merely to show that this merchandise was stolen at the same time and found at the same place as was the property in question.

In the case of Jackson v. State, 42 Okla. Cr. 86, 274 P. 696, this court held:

“(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove" him guilty of another and distinct offense.
“(c) Evidence of á different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestee.
“(d) 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 the commission of the offense charged.”

—which follows the rule laid down in State v. Rule, 11 Okla. Cr. 237, 144 P. 807.

Thjg court instructed the jury, in paragraph 8 of his instructions, as follows:

“Now, even though you may believe that the defendant is guilty of such other and separate offense, nevertheless he would not be guilty in this case, and such testimony is admitted and you may consider the same in so far as it may show. If it does show a concerted plan or policy of the defendant upon the occasion alleged to steal and if it does so show you must not consider the same except in so far as it may in your judgment throw any light upon the probable guilt of the defendant of this particular offense charged.”

No exceptions were taken to this instruction and no instruction covering this testimony was .■ requested by the defendant. This instruction is not skillfully drawn, yet without exceptions, and without an offer of other instructions, the court is of the opinion that the instruction properly protected the defendant with reference to the value and effect to be given the evidence as to the other articles stolen at or about the same time.

In Vickers v. U. S., 1 Okla. Cr. 452, 98 P. 467, this court says:

“Evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to prove a distinct felony and thus prejudice the accused.
“* * * Evidence covering the commission of another offense is also admissible when two crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. In support of this rule, see. Mason v. State, 42 Ala. 532; State v. Folwell, 14 Kan. 105; State v. Wentworth, 37 N. H. 196. It is also relevant to show that the accused was seen near the place of the crime, although he does not claim an alibi. Cyc. vol. 12, p. 399. Evidence, covering the commission of another offense is also received to show the identity of the person, local proximity, or other facts calculated to connect the accused with the commission of the offense. State v. Kelley, 65 Vt. 531, 535, 27 A. 203, 36 Am. St. Rep. 884; Halleck v. State, 65 Wis. 147, 26 N. W. 572; Commonwealth v. Choate, 105 Mass. 451.”

In the case of Mose Jackson v. State, 42 Okla. Cr. 86, 274 P. 696, recently decided by the court, this court said:

“Most of the exhibits introduced against the defendant Mose Jackson had been taken from a car that had been recently burglarized in Muskogee, and were introduced for the purpose of establishing the fact that a systematic scheme or plan to rob freight cars in Muskogee was being carried out by the defendants, and are so closely linked together as to form a part of the res gestae.”

The evidence of the theft of other articles at the timé the oats were stolen, and of finding such articles in the barn of defendant in his possession, were clearly admissible for the purpose of establishing a systematic scheme to steal and rob as indicated in this case/

There is ample evidence in the record to support the verdict, and no substantial errors of law appearing in the record, the judgment of the trial court is affirmed.

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


text:
    ELMER BRIXEY v. STATE.
    No. A-6652.
    Opinion Filed March 16, 1929.
    Rehearing Denied March 30, 1929.
    (275 Pac. 655.)

      Jordan & Anderson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter recalled defendant, was convicted in the district court of Rogers county of the theft of a domestic animal and was sentenced to serve a term of two years in the state penitentiary.

The record discloses that on the day charged there was stolen from the premises of one L. David a red bull calf. The calf was last seen by the owner about 9 o’clock at night on March 28, and was missed early the next morning. An examination of the lot where the calf was kept showed the tracks of two men leading out of the lot, with evidence that the calf had been dragged out and through the fence where the wires had been cut, to a spot where there were tracks of an automobile. The owner telephoned the Banfield Packing Company at Tulsa, and later in the day visited the plant, and there discovered the carcass of his calf hanging in the cooling room of the slaughterhouse with the hide on it. He positively identified it from its size, color, and markings on the hide, although the same was not branded. The calf was purchased by Mr. Ban-field of the packing company about 7 o’clock that morning from a man who gave his name as Paul Jones, and the witness identified defendant among a number of prisoners in the Rogers county jail as the person from whom he' purchased the calf. Banfield testified that two men came to the packing plant with this truck and one sat in the truck while the other made the sale. He was not able to identify the man in the truck. It was shown that this packing company had been purchasing property which had been stolen, and as a matter of precaution Mr. Banfield took the license number of the truck in which this calf was brought to the packing plant, and this license number was that of a truck owned by Tom Singleton, brother-in-law of defendant. It was shown that on the night of March 28, the truck was in the possession of defendant and Clarence Singleton, a son of Tom Singleton. The defense is an alibi. Defendant claims that he was out in this truck on the night in question on his way to a place in Cherokee county to look at some hogs, that the lights on the truck were extinguished by rain, and he was compelled to stay out all night and did not reach the place until about 8 o’clock on March 29. The check given in the name of Paul Jones for the purchase of the calf was never presented for payment. Defendant testified he had never sold anything to the Banfield Packing Company in his own name or any other name. Banfield testified that he not only bought the particular calf from defendant in the name of Paul Jones, but had previously dealt with him under that name, and there was introduced in evidence a check for about $43 which had been given by the Banfield Packing Company to Paul Jones which wavs indorsed in the name of Paul Jones and Clarence Singleton, who was with defendant on the night of March 28. The check was cashed at a bank in Claremore, the home of defendant. The evidence is circumstantial and is conflicting. The circumstances proven, however, are consistent with the guilt of defendant and inconsistent with any reasonable hypothesis or conclusion other than that of his guilt. Where the insufficiency of the evidence to support a conviction is relied on in an appeal to this court, it is settled by many decisions that where there is evidence from which the jury may reasonably and logically find defendant guilty of the offense charged, although it is conflicting, this court will not disturb the judgment for insufficiency.

It is next urged that the court erred in admitting hearsay evidence. This assignment is directed to the manner of proving the license number of the truck alleged to have been driven by defendant on the night of the theft. At the time of the purchase of the animal in question, the witness Banfield wrote down the license number of the truck. This number was communicated to another witness on a slip of paper who testified to it. Plainly, this number was not properly proven, although a considerable portion of these circumstances were admitted without objection. See White v. State, 34 Okla. Cr. 424, 246 P. 1114.

Defendant complains that the county attorney was guilty of misconduct in the cross-examination of defendant’s witnesses E. Z. Collins, Mrs. E. Z. Collins, and M. Singleton. Evidently the county attorney was seeking to show the relation, connection, or association of these witnesses with defendant. He asked if the witness Collins was charged with an offense in Cherokee county and that defendant was there attending the trial. He asked on the cross-examination of Singleton if his son Tom Singleton had been jointly charged with defendant and had been exonerated at the preliminary hearing. It is permissible, for the purpose of testing the credibility and showing his interest, to question a witness on cross-examination on matters tending to show his relation, business, social, or otherwise, with the accused, or to show bias or prejudice, friendship or enmity. The cross-examination here, however, went beyond the rule and took a range not permitted. The objections made were sustained by the court, but he should have sharply admonished the county attorney to desist from pursuing this line of examination to the extent he did.

Proof that the check given by the Banfield Packing Company was never returned for payment, that the packing company had previously bought live stock from defendant under the name of Paul Jones, that he did not call as a witness Clarence Singleton to explain the incriminating circumstances which he was in a peculiar position to explain, with all the other circumstances detailed, convinces us that defendant is guilty as charged, and that the errors shown by the record are not of that substantial character which requires a reversal particularly as the punishment assessed is the minimum under the statute. Under the entire record there has been no miscarriage of justice.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    HARVE WORLEY v. STATE.
    No. A-6398.
    Opinion Filed March 16, 1929.
    (275 Pac. 1119.)
    Arnold & Woodruff, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The. plaintiff in error, hereinafter called defendant, was convicted in the county of Adair county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $5£¡0 and to serve six" months in the county jail.

The case was tried in August, 1926, and the appeal was lodged in this court in October, 1926. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the timo the case was submitted.

We have examined the record and find the evidence reasonably sustains the verdict and judgment, and no jurisdictional or fundamentnal error is apparent. The case is affirmed.


author: PER. CiURIAM.

text:
    HARVE WORLEY v. STATE.
    No. A-6433.
    Opinion Filed March 16, 1929.
    (275 Pac. 1119.)
    Arnold & Woodruff, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER. CiURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Adair county on a charge of maintaining a place, where intoxicating liquors were kept to be sold in violation of the prohibitory law, and was sentenced to pay a fine of $250, and to serve 90 days in the county jail.

Judgment was entered in August, 1926, and the appeal was lodged in this court in November, 1926. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, and find that the evidence reasonably sustains the verdict and judgment, and no jurisdictional nor fundamental error is apparent.

The case is affirmed.


text:
    ELMER CORAM et al. v. STATE.
    No. A-6037.
    Opinion Filed March 16, 1929.
    Rehearing Denied April 13, 1929.
    (275 Pac. 1070.)
    C. B. Leedy, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woodward county on a charge of having the unlawful possession of intoxicating liquor, and each was sentenced to pay a fine of $500 and confinement in the county jail for a period of six months.

The record discloses that at the time charged defendants were seen by Mrs. Owings to deposit a package in a shinnery patch in a field near the public highway. After the parties left, this witness made an examination of the place and discovered three one-half gallon jars of whisky. She telephoned certain officers, who came to the place, concealed themselves, and soon thereafter defendants returned in a car. Defendant Yeatman remained in the car, and Coram went into the field and had picked up a part of the whisky when he was intercepted by the officers. The evidence is ample to sustain the verdict and judgment.

Some complaint is made that the court abused its discretion in asking questions of the witnesses indicting his opinion. We do not find any particular error in the action of the trial court in asking the questions complained of — certainly nothing that requires a reversal.

Also it is contended that the court erred in refusing an instruction on circumstantial evidence. This is not a case resting on circumstantial evidence, and the request was properly refused.

Some other errors are suggested, but none of them are of sufficient importance to require special discussion. Under the record, however, the imposing of the maximum punishment is excessive, and justice requires that the same be reduced to a fine for each defendant of $250 and imprisonment in the county jail for a term of 60 days.

As so modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. M. HALSEY v. STATE.
    No. A-6372.
    Opinion Filed March 16, 1929.
    (275 Pac. 405.)
    H. B. Martin and C. A. Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of grand larceny, and was sentenced to imprisonment in the state penitentiary for a term of three years.

The information properly charges that the defendant did, in Tulsa county and state of Oklahoma, commit the crime of grand larceny.

The undisputed facts in the case appear to be that the complaining witness, S. S. Reeseman, was the owner of 30 joints of 28-pound and 32-pound, 8 1/4-inch oil well casing, known as “Youngstown” and “.¿Etna” casing, of the value of $1,0.00, which property was kept on a lease owned by Reeseman; that Reeseman had marked this pipe with white paint by putting the figures 28 or 32 on the pipe, the mark depending on the weight of the pipe.

On the 18th of July, 1925, this pipe was missing from the lease of the complaining witness. The complaining witness with one Alexander went to the residence of defendant on a farm near Tulsa to see defendant about purchasing some 8 1/4- inch pipe of the kind which complaining witness had lost. Reeseman and Alexander introduced themselves to defendant as Mr. Glenn and Mr. Lydecker. They inquired of the defendant if he had any of this kind of pipe for sale. The defendant answered that he had that kind of pipe for sale, but that it was located on another farm of his near the city of Tulsa. Reeseman and Alexander then went to the other farm of defendant, and finding the pipe there, identified it as the property stolen from Reeseman.

The defendant did not take the witness stand, but produced as a witness one Gosney, who testified that he sold this pipe to the defendant and delivered it to the farm where it was found. Gosney produced an account book showing an account between himself and defendant extending over a period from December, 1924, up to and including the time of the trial. An examination of the book showed that all the accounts hept in the book were entered in ink, except the account of the defendant, which was in the handwriting of the witness Gosney and made with lead pencil. The jury evidently disbelieved this witness on account of the improbability of his story and on account of the manner in which the keeping of this account differed from all the other accounts in the book.

■ The defendant assigns numerous grounds of error, but argues only four of them in his brief. The court will consider them in the order set out by the defendant.

The first ground of error is, “That the evidence is insufficient to support a conviction.” The second ground of error is that, “The evidence, being purely circumstantial, is insufficient, from proof of mere possession alone, without other incriminating circumstances, to warrant a conviction.” The third ground of error is, “Circumstantial evidence must exclude every other hypothesis of defendant’s innocence.” Since these three grounds all relate to the sufficiency of the evidence, this court will consider them together as one assignment of error.

In the case of Harrison v. State, 10 Okla. Cr. 210, 135 P. 948, this court held:

“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the proposition that as a matter of law the verdict is contrary to the evidence.”

This court has in numerous cases reaffirmed this rule. There is ample evidence in this record to support a conviction if the jury believed the evidence offered by the state and disbelieved the evidence of Í Oosne'y and other defendant witnesses. The evidence in this case is positive as to the ownership of the property, the stealing of the property, and the finding of the same property in the possession of the defendant who was offering it for sale. The evidence is circumstantial as to the actual stealing by the defendant himself.

In Shields v. State, 32 Okla. Cr. 344, 240 P. 661, this court held:

“The presumption arising from the possession of recently stolen property is one of fact and not of law, and the weight, value, and probative effect of such evidence is exclusively for the jury.”

In the case of Blumhoff v. State, 29 Okla. Cr. 97, 232 P. 862, this court says:

“The truthfulness of an explanation of possession of stolen property, although uncontradicted, must be determined by the jury.”

In Buford v. State, 27 Okla. Cr. 138, 225 P. 568, this court held:

“The onus of proving the truth of his explanation is upon one in whose possession stolen property is found, when found under such circumstances as to call for an explanation, and the explanation given is not natural and probable, and not such as all reasonable minds would agree on.”

In the case of Kirk v. State, 32 Okla. Cr. 361, 241 P. 205, this court says in the syllabus:

“The jury are the exclusive judges of the credibility of the witnesses and the weight and value of the evidence, and may find a defendant guilty from the inferences arising from circumstantial evidence and disbelieve positive evidence to the contrary. In such case, where from the evidence different inferences may be drawn,” the Criminal Court of Appeals “will not substitute its judgment for that of the jury and reverse the judgment.”

In Whitten v. State, 25 Okla. Cr. 447, 221 P. 115, this court held:

“* * * jn considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.”

Under the rule laid down in the foregoing decisions of this court, the evidence is amply sufficient to sustain the verdict and judgment. The conflicts arising in the evidénce were solely for the jury to decide, as well as the weight of the evidence as a whole, and of the inferences properly to be drawn from all the circumstances in evidence. The defense interposed is so clearly a fabricated one which, coupled with the failure of the defendant to make any personal explanation of his possession of this pipe, evidently convinced the jury that the defendant was connected with taking this pipe. His guilt of grand larceny is a reasonable inference to be drawn from the facts and circumstances in evidence, and the jury could reasonably conclude from all the facts and circumstances in the case that the defendant was guilty as charged.

The defendant, in his fourth ground of error, complains that, “Because of the unwarranted, incompetent and prejudicial misconduct of counsel for the state in his argument to the jury, the case should be reversed.”

In Collins v. State, 15 Okla. Cr. 96, 175 P. 124, this court held:

“Where certain remarks of the county attorney in argument to the jury are not such as are made grounds for reversal by statute, and there was no motion to exclude such remarks from the consideration of the jury, nor any ruling of the trial court adverse to the defendant to which an exception was saved at the time, there is no question presented for this court to consider.”

A careful examination of the argument of counsel for the state discloses that counsel was evidently trying to answer the arguments made on behalf of defendant by his counsel, and that most of the remarks complained of were made in reply to remarks made by defendant’s counsel. The record nowhere discloses that the defendant requested the court to instruct the jury not to consider the remarks complained of, and nowhere requested the court to make any ruling on said remarks upon which exceptions could be saved and error predicated. The remarks of the county attorney do come very close to the objectionable line, but this court cannot consider them on account of the failure of the defendant to have the proper record made. The remarks of the county attorney were not of such a nature as to deprive the defendant of his constitutional or statutory rights or unduly inflame the minds of the jury. The court is of the opinion that the rights of the defendant were not prejudiced by the remarks complained of.

The record shows that the defendant received a fair trial; that no error prejudicial to his rights was committed by the trial court.

The judgment is therefore affirmed.

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