author: MATSON, J.

text:
    O. P. JOHNSON et al. v. STATE.
    No. A-2954.
    Opinion Filed Sept. 27, 1919.
    (183 Pac. 926.)
    1. RIOT — Statutory Definition of Crime. Tie crime of riot is defined by section 2558, Rev. Laws 1910. Subdivisions 3 and 4 of section 2559, Rev. Laws 1910, contain no definition of the crime of riot.

      2. APPEAL AND ERROR — Prejudicial Error — Instructions—Riot.. For instruction held to be not prejudicial to the defendants under the evidence in this case, see 'body of opinion.
    3. TRIAL — Instructions—Refusal. It is not error for the trial- court to refuse to give a requested instruction, although it may- contain a.correct statement of the law, if the principles stated therein have already been covered in the general instructions.
    4. SAME. It is not error to refuse a requested instruction not applicable to the issues.
    5. APPEAL AND ERROR — Harmless. Error — Impaneling Jury; Where the record shows that all the jurymen composing the regular panel were present and in attendance upon the court, and that all of such jurymen were examined upon their voir dire be^ fore an open venire was issued for additional jurymen, the refusal of the trial judge to have all the jurors in the regular panel called, as provided in section 5828, Rev. Laws 1910, when the case is called for trial, is not reversible error, ¡because the purpose of said ¡statute is to enable the state and the defendant to ¡select the-trial jury from the members of the regular -panel as far -as possible be^ fore the issuance of an open venire or an ¡order for the drawing of additional jurors. When it is clear that the defendant was not deprived of any substantial right or privilege -by the alleged misconduct of the trial court, the judgment of conviction will not be reversed for that reason.

      Appeal from District Court, Cherokee County;'John H. Pitchford, Judge.

    O. P. Johnson, Albert Pitts, and Phillip Balpain were each convicted of the crime of riot, and each appeals;
    Judgment affirmed.

      Bruce L. Keenan, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst.Atty. ¡Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Cherokee county, wherein the defendants, O. P. Johnson, Albert Pitts, ¡and Phillip Halpain, were each com-victed and sentenced to two years imprisonment upon a joint trial for the. crime of riot.

The charging part of the information is as follows: •

‘"That is to say, the said O. P. Johnson, Albert Pitts, Jack Wagner, and Phillip Halpain did, in Cherokee county and state of Oklahoma, on or about the 26th day of June, 1916, then and there being, then and there wilfully, unlawfully, feloniously, and riotously assemble to commit-an assault and battery upon the person of W. H. Philpott, and the said O. P. Johnson, Albert Pitts, Jack Wagner, and Phillip Halpain, by the use of force and violence and acting in concert, then and there did assault, strike, bruise, beat,, wound, and maltreat the said W. H. Phil-pott, and they, the said 0. P. Johnson, Albert Pitts, Jacx Wagner, and PhJip Halpain, being then and there armed with dangerous and deadly weapons, to wit, certain pistols, and disguised, did then and there, in the manner and by the means aforesaid, unlawfully, wilfully, intentionally, and feloniously commit the crime of riot, contrary to the form of the statutes in such cases made and provided.”

Jack Wagner, who was jointly tried with these defendants, was acquitted.

Riot is defined by section 2558, Revised Laws 1910, as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

The punishment for riot is fixed according to the «circumstances under which the participants committed the crime; section 2559, Id., providing the punishment as follows:

“Any person guilty of participating in any riot is ■punishable as follows:

“First. If any murder, maiming, robbery, rape or arson was committed in the course of such riot, such person is punishable in the same manner as a principal in such crime.

“Second. If the purpose- of the riotous assembly was to resist the execution of any statute of this state or of the United States, or to obstruct any public officer of this state or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is punishable by imprisonment -in the penitentiary not exceeding ten years and not less than two.

“Third. If such person carried at the time of such riot any species of firearms or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in the penitentiary mot exceeding ten years and not less than two.

“Fourth. If such person directed, advised, encouraged or solicited other persons who participated in the riot to acts of force or violence, he is punishable by imprisonment in the penitentiary for not exceeding twenty and not less than two years.

“Fifth. In all other cases such person is punishable as for a misdemeanor.”

The prosecuting witness, W. ■ H. Philpott, testified that he was a member of an organization known as the Working Class Union; that on the night of June .26, ' 1916, he attended a meeting of a local of this organization held at the Lost City schoolhouse, in Cherokee county; there were about 20 or 25 members of the organization present at that meeting; that some time between 10 and 11 o’clock in the evening, after the meeting had been in progress some two or more hours, five masked men entered the schoolhouse, and by force took the said Philpott therefrom out into the schoolhouse yard, where four of the number held him, while the fifth member heat him over the body with a piece of wet rope, administering some 30 licks; that these parties wore masks over their faces, and were armed with pistols and r.e-■volvers; that he was armed with a pistol, but that the ■said parties took his gun away from him before he was taken from the schoolhouse. Philpott further testified that he was well acquainted with Halpain, Pitts, Johnson, and Wagner, and recognized them by their actions ana by hearing some of them talk; that he had known each of these parties some four or five years. The fifth party, Philpott, said he did not know.

Halpain, Pitts, and Wagner relied upon alibis as a defense, while Johnson admitted that he was present at the meeting of the lodge at the Lost City schoolhouse on that occasion but testified that he did not leave thet schoolhouse, took no part in the alleged riot, nor did he in any manner advise, direct, encourage, or solicit the participants to use force or violence.

Among other instructions given was the following:

“No. 6. You are instructed that if you believe •and find from the evidence in this case, beyond a reasonable doubt, that the defendants, or any three or more of them, in Cherokee county, Okla., and on or about the date alleged in the information, or within three years next before the filing of the information against them' in ..court, without authority of law, feloniously' combined together, acting in concert and in pursuance of a common design and intent, by means of force or violence, or by any threat to use force or violence, accompanied by immediate power of execution, and carried at the time ¿ny ¡firearms or other deadly or dangerous weapons or were .disguised by means of masks or otherwise, entered the schoolhouse mentioned in the evidence, where a congregation of people were in attendance, and took therefrom the prosecuting witness, Philpott, against his will . and by the means just stated, it would be your duty to find the defendants, or such of them as you belieVe beyond a reasonable doubt aided in committing the offense, if the number so committing the offense amounted to¡ three or more, guilty as charged in the information, and to assess their punishment in the penitentiary for not less than two years nor more than ten years; provided, -if you further find from the. evidence, beyond a reasonable doubt, that the defendants, or any of them, - acting in the manner above stated, went further and directed, advised, encouraged, or solicited each other, or any one of them, or any other person so participating in the riot, to acts of violence or force upon the person of the prosecuting witness, then and in that event the punishment for the defendants so directing, advising, encouraging, or soliciting such acts of force or violence would be by imprisonment in the penitentiary for not less than two nor more than twenty years.”

Counsel for defendants strenuously complain of the foregoing instruction insisting that by the giving of the instruction the court authorized the jury to find either of the defendants not only guilty of participating in the riot, while armed with dangerous weapons or under disguise, but also authorized the jury to find either of the defendants guilty of inciting a riot, which it is claimed under our statutes is a separate and distinct offense. . .

We do not believe that instruction No. 6 is subject to the criticism made by defendants’ counsel, nor do we believe that it was the intention of the Legislature in enacting subdivisions 3 and 4 of section 2559, to define several species or degrees of the crime of riot. The crime of riot is made out upon proof of the elements of that offense defined by section 2558, supra. The various subdivisions of section 2559 provide merely rules of evidence which authorized an increased punishment to be imposed upon participants in a riot according to the circumstances under which or the means by which the said offense was committed.

Under our statutes the crime of riot is a felony, because it is such a crime as may be punished by imprisonment in the state penitentiary, and the district court or superior court would have jurisdiction to try offenders charged with riot as defined in section 2558, supra. No different or separate offense is created by either of subdivisions' 3 or 4 of section 2559, but when any of the facts set out in either of said subdivisions appear in evidence against persons charged with a riot, then the jury or the court assessing the punishment may impose a punishment in accordance with the facts.

For instance, the evidence might disclose that some participants carried at the time of such riot certain firearms; that others were disguised; but the evidence might also disclose that only one of such persons directed, advised, encouraged, and solicited the others to acts of force and violence. If such circumstances as above set forth appear, then the maximum punishment that could be given those who did not direct, advise, encourage, and solicit acts of force and violence would be ten years, while the party who did so direct, etc., would be subject to a maximum punishment of twenty years, although all the participants engaged in the riot and used force and violence in carrying it into effect.

Subdivision 4 of section 2559, supra, is intended to reach the leader of the rioters. To be subject to the punishment prescribed by said subdivision, the person ■must not only be a participant in the riot, but he must be a director, advisor, and solicitor of the others to use force and violence in carrying the purposes of the riot into execution.

In giving instruction No. 6, swpra, the court not only required the jury to find that these defendants participated in the riot while armed or disguised, but before the maximum punishment of 20 years could be imposed, as set forth in said instruction, they must find that some ope or more of said participants directed, advised, or .solicited acts of force and violence to be perpetrated. The instruction correctly states the law, but had it been an incorrect statement of the law, in this instance we fail to see wherein any of these defendants could have been harmed. It only, authorized the jury to assess an increased punishment. But as each of the defendants was found guilty “as charged in the information,” and as the information charged each of. them with the crime of riot, with the additional allegation that they carried firearms and were disguised, and only the minimum punishment of two years’ imprisonment in the penitentiary, as provided in subdivision 3' of section 2559, was imposed against each, it is evident that instruction No. 6 resulted in no harm to either of these defendants. Had the jury imposed a punishment in excess of ten years against either of the defendants, then it would be evident that as to such defendant the jury found that he directed, advised, encouraged, or solicited the use of force and violence by the others engaged in the riot. But the verdict in this case shows that the jury did not find that either of these participants was the director or leader in the crime. We find no merit in the contention that instruction No. 6 resulted prejudicially to the substantial rights of either of these defendants.

The case of Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442, in which this court held that an accused person may not be put on trial for the commission of more than one offense at the same time, relied upon by counsel as supporting his contention, is not in point. The facts of that case and- instruction given by the trial court in the Gracy Case presented an entirely different situation from that in this case. In the Gracy Case, two separate and distinct acts of rape committed on the prosecuting witness at different times were permitted to go before the jury, and under the instructions given the defendant could have been convicted of the commission of either act upon the theory that he committed one act himself and aided and abetted another person to commit the other separate act. Not so in this case. Here there is evidence of only one crime committed, and the prosecuting witness testifies that each of these convicted defendants was a participant in that crime. Instruction No. 6 is not open to the criticism that it permits some of the defendants to be convicted of one crime and others of another. Its purpose was for the guidance of the jury in the infliction of punishment, and for that purpose alone;

It is also contended that the court erred in refusing to give the following instruction:

“■Gentlemen of the jury the defendant O. P. Johnson has offered evidence to prove that he was in the Lost City schoolhouse during the whole time of the commission of the alleged riot; and you are instructed that you would not be warranted in finding him guilty merely because he was so present in the Lost City schoolhouse during the whole time of the commission of the riot, unless you further find from the evidence, beyond a reasonable doubt, that he was armed with a deadly or dangerous weapon, or was disguised, and was an actual participant in the alleged riot.”

The substance of this request is contained in instruction No. 6 given by the court, which requires- the jury to find beyond a reasonable doubt that—

“The defendants, or any three or more of them, * * * without authority of law, feloniously combined together, acting in concert and in pursuance of a common design and intent, by means of force or violence, or by any threat to use force or violence, accompanied by immediate power of execution, and carried at the time any firearms or other dangerous or deadly weapons, or were disguised by means of masks or otherwise, entered the schoolhouse mentioned in the evidence, where a congregation of people were in attendance, and took therefrom the prosecuting witness, Philpott, against his will and by the means just stated, it would 'be your duty to find the defendants, or .such of them as you believe beyond a reasonable doubt aided in committing the offense, if the number so committing such offense amounted to three of more, guilty as charged in the information.”

The instruction given was as favorable to the defendant Johnson as the one requested; as under it before the jury would be authorized to convict the defendant Johnson, the court instructed that the jury must find beyond a reasonable doubt that three or more of these defendants combined’ together and acted in concert in the pursuance of a common design to commit -this offense; that the jury must have believed beyond a reasonable doubt, before a verdict of guilty could be returned, that the defendant aided in committing the offense; and that the jury is also told in instruction No. 6 that the participants must have carried at the time firearms or deadl3r or dangerous weapons, or have been disguised by means of masks or otherwise. The language employed by -the court in instruction No. 6 is equally as clear and definite as that contained in the requested instruction. It has repeatedly been held that it is not .error for the trial court to refuse to give a requested instruction, although it may contain a correct statement of the law, if the principles therein stated have already been covered in the general instructions. Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029; Moss v. State, 4 Okla, Cr. 247, 111 Pac. 950; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350; Martin v. State, 5 Okla. Cr. 355, 114 Pac. 1112.

The further contention that the refusal to give the foregoing requested instruction was particularly prejudicial to the defendant Johnson, in that the proviso contained in instruction No. 6 permitted the jury to convict such defendant, although not present at the time of the assault on Philpott, on the ground that he directed, advised, encouraged, or solicited other persons who participated in the riot to the use of acts of violence at a time prior to the commission of the offense, is without merit. Instruction No. 6 is not open to the construction counsel contends, for. It is clear from a reading of instruction No. 6 that the trial court, before authorizing the jury to convict a person under the proviso therein contained, required that such person be an actual, active participant, as defined in the first part of instruction No. 6. The verdicts against each of the defendants show that the jury found each of them guilty as an actual participant in the riot in the manner charged in the information. A consideration of the entire record of the trial of the case fails to disclose any prejudice to any of the defendants in the refusal of the court to give this requested instruction.

It is also contended that the court erred in refusing to give requested instructions Nos. 4 and 6, as follows:

“Request No. 4. You are instructed, gentlemen ■ of the jury, that the defense interposed is what in law- is termed an alibi, which means that the defendants at the time the alleged crime was committed were at some other place than the place of the commission of the crime alleged in the information; and you are instructed that if the whole proof raises in your minds a reasonable doubt, as to whether these defendants were at the place of the commission of the offense at the time it was committed, or were at a different place, then in that event your verdict should be not guilty.”

“Request No. 6. Gentlemen of the jury, the defendants O. P. Johnson, Jack Wagner, Albert Pitts, and Phillip Halpain are charged with the commission of the alleged riot; and you are instructed that by the provisions of the statutes of Oklahoma three or more of these defendants must act together in order to commit the crime of rict as here alleged; a less number ¡.ban three cannot commit such an offense.”

Requested instruction No. 6 was properly refused because the substance of the requested instruction was covered in the general charge of the court and requested instruction No. 4 was properly refused because not applicable to the facts of the case as to defendant Johnson, The court gave an instruction on the defense of alibi applicable to the other defendants. While it is contended that the defendant Johnson relied upon an alibi as a defense, the testimony shows that Johnson, by his own admission, was in the Lost City schoolhou.se at the time this- riot commenced. His defense was not an alibi, but that he took no part in the riot. No error- resulted to either of the defendants in the refusal to give these requested instructions.

It is also contended that the trial court erred in refusing to have all the jurors in the regular panel called at the request of counsel for defendants at the time the case was called for trial. Section 5828, Revised Laws 1910, provides:

“When the case is called for trial, and before drawing the jury, either party may reouire the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion wait or not for the return of the attachment.”

It is the contention: (1) That the foregoing section is mandatory, and- gives a right' to the defendants to have the names of all the jurors called when the case is called for trial;. (2) if that part of the statute requiring the names of all the jurors to be called is not mandatory but directory, then a refusal to call the names of the jurors composing the regular panel will be either reversible or harmless error, depending upon whether the defendants show they had or not a fair and impartial trial.

The purpose of the foregoing statute is to enable the defendant to select his trial jury from the members of the regular panel who are called to serve as jurors at the term as far as possible; and in order to preserve to him the benefit of such privilege, the above statute, requiring, when requested, the names of all the regular panel to be called immediately preceding the calling of the case for trial, was enacted. In this instance, the court denied the request of counsel to call the names of the 29 men who then composed the regular panel of jurors, but the record shows, and it is not contended to the contrary, that all of the 29 men composing the regular panel were present and in attendance upon -the court, and that the first 12 called to the jury were drawn from this panel, and that the entire 29 were examined upon their voir dire before an open venire was issued for additional jurors.

Had the trial court complied with the request of counsel for defendants and called the names of the entire 29 men composing the regular panel of jurors, the result would have been that all 29 would have answered present. The entire, record of impaneling the trial jury is set out in full, and it is disclosed thereby that the entire 29 men composing the regular panel of jurors at that term of court were, examined' as to their qualifications to sit as jurors in the trial of this case before the defendants were compelled to select trial jurors from any other source, and no contention is made, although an open ve-nire was issued and a part of the jury selected therefrom, that a trial jury was selected composed of men any one of whom was a disqualified juror.

When it is clear that the defendant was not deprived of any substantial right or privilege by the alleged misconduct of the trial court, the judgment of conviction will not be reversed for that reason.

This case has been thoroughly and ably briefed by counsel representing the defendants. Counsel was particularly zealous, both in the trial court and in this court, to preserve every possible question in behalf of his clients. Thoughtful consideration has been given the numerous errors assigned as grounds for reversal, and after an examination of the entire record it is the opinion of this court that these defendants had a fair and impartial trial; that, there is evidence in the record which, if believed, amply supports the jury’s verdict; that the instructions were fair to the defendants and not misleading; and for the reasons stated the judgments are affirmed.

DOYLE-, P. J., and ARMSTRONG, J:, concur. .


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    HOMER THAXTON v. STATE.
    No. A-3297
    Opinion Filed Oct. 4, 1919.
    (183 Pac. 927.)
    INTOXICATING LIQUORS — Unlawful Sale — Evidence. The record in this case ca refully examined, and the evidence, though in conflict, found to sufficiently sustain the verdict of the jury, and that no prejudicial error intervened in trial.

      Appeal fmm County Court, Love County; J. H. Hays, Judge.

    Homer Thaxton was convicted of violating the prohibitory liquor laws, and he appeals.
    Affirmed.

      Cameron & Walden, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. -
   ARMSTRONG, J.

The plaintiff in error, Homer Thaxton, hereinafter designated as defendant, was informed against for selling intoxicating liquors, convicted and sentenced to pay a fine of $50, and the costs of this prosecution, and to be imprisoned in the county jail of Love county for 30 days. To reverse the judgment rendered, he prosecutes this appeal.

There is only one question presented by the record, or argued in defendant’s brief — the sufficiency of the evidence to sustain the conviction had.

The evidence was in direct conflict, and, as said in defendant’s brief, “The question resolves itself into the proposition as to whom the jury should believe.” This question of fact, the veracity of the witnesses, was within the exclusive province of the jury to determine, and, having determined it, this court, as held by its unbroken line of decisions, will not disturb the verdict rendered, where, as in the instant case, the trial is free from prejudicial error.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: DOYLE, P. J.

text:
    C. D. WEEKS v. STATE.
    No. A-3324
    Opinion Filed Oct. 4, 1919.
    (189 Pac. 932.)
    APPEAL AND ERROR — Presumptions—Burden on Defendant, On Motion to Dismiss, to Show Laches in Prosecution. In the ah-' sence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by o,r with the consent of the defendant himself, and when on bail he must demand' a trial, or resist the continuance of the case from term to term. A defendant, who has never demanded or been refused trial, is not entitled to a discharge under the constitutional provision (article 2. sec. 20) and the statutory provision (section 5547, Rev. Laws).

      Appeal from County Court, Jefferson County; E. L. Dillard, Judge.

    C. D. Weeks, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Jefferson county upon an information filed in said court on May 4, 1915, which charges the unlawful conveyance of intoxicating liquors. On the 12th day of February, 1918, in accordance with the verdict of the jury, he was sentenced to be confined for 30 days in the county jail and to pay a fine of $100. From the judgment he appeals.

The undisputed facts, as shown by the testimony of the sheriff of Jefferson county and a deputy sheriff, are that these officers, about 2 o’clock in the morning of the date alleged, stopped the defendant on the highway, about three miles west of Waurika. He was driving a Ford car loaded with 12 cases of whisky.

The refusal to grant a continuance is assigned as error. The continuance was asked on the grounds of the absence of P. T. Hamilton, who, if present, would testify that he was county attorney of Jefferson county when the information was filed, and that it was afterwards agreed that, if the defendant would relinquish all right, title, and interest in the Ford car, this case would be dismissed, and that he told this defendant that the county judge, approved the agreement,.and that the defendant thereupon withdrew any claim to said car, and the same was sold by the county.

The application was insufficient, in that it was not averred that the defendant was unable to prove such facts by any other witness. We also think that the absent witness was incompetent to testify to the facts proposed to be proven by him. The only competent evidence as to whether or not the case was dismissed was the record of the trial court. It follows that the continuance was properly denied. .

When the case was called for trial, counsel for the defendant made the following motion:

“Comes now the defendant, C. D. Weeks, and moves to dismiss this action, for the reason' it has been on the docket since 1915; some eight terms of this court having been held since said case was- filed, and six terms of said court held after the same was assigned, and no attempt was made by the state to try the same.

“The Court: Motion overruled; exception allowed.”

At the close of testimony the motion was renewed and overruled. It is contended by counsel for the defendant that the court erred in not sustaining the motions to dismiss.

When the state rested its case, the defendant called the court clerk as a witness, and over the objection of the county attorney introduced the docket entries of the case, showing, among others, the following entries:

“May 6, 1915. Appearance bond filed, approved; and recorded.

“July 12-15. Continued for the term.

“November 8-15. Continued for the term.

“9-24-1917. Set for trial.

“1-23-18. Setting down for trial.

“2-1-18. Motion for continuance filed.

“2-7-18. Case called for trial.”

In the case of Bowes v. State, 7 Okla. Cr. 316, 126 Pac. 580, it was said:

“In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demanda trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision (article 2, sec. 20), and the statutory provision (section 6488, Comp. Laws 1909).” Section 5547, Rev. Laws.

And see Head v. State, 9 Okla. Cr. 356, 131 Pac. 937, 44 L. R. A. (N. S.) 871. It follows that the court did not err in refusing to sustain the motions to dismiss.

Finding no prejudicial error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    GROVER RHOADES v. STATE.
    No. A-2940
    Opinion Filed Oct. 18, 1919.
    (184 Pac. 913.)
    1. APPEAL AND ERROR — Assignment of Error — Sufficiency of Information. An assignment of error that “the verdict is contrary to the law and the evidence” does not raise the question of the sufficiency of the information. To raise the question of the sufficiency of an information in the appellate court, a demurrer or other proper objection should be made thereto in the trial court.

      2. APPEAL AND ERROR — Conviction—Sufficiency of Evidence. Where there is evidence in the record which, if believed by the jury, is sufficient to support, the conviction, .the appellate court will not reverse the judgment because of the alleged insufficiency of the evidence.
    3. TRIAL — Instructions—Evidence. The trial court should not instruct upon any degree of the crime of which there is no evidence tending to show the defendant’s guilt.

      4. APPEAL AND ERROR — Briefs—Rulings on Evidence. Where the brief on behalf of defendant fails to comply with rule 7 of this court, by incorporating therein “the full substance of the evidence admitted or rejected, stating specifically the objection thereto,” this court will not closely scrutinize the record for the purpose of substantiating defendant’s claim, when the alleged error relates solely to the admission or rejection of evidence.
    5. NEW TRIAL — Newly Discovered Evidence — Discretion of Trial Court. Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and, ■unless the newly discovered evidence is material to the issues and and it is clearly probable that upon a subsequent trial a different result would occur because of such evidence, a new trial will not ■be granted.
    6. APPEAL AND ERROR — Prejudicial Error — Instruction.—Where the trial court gives certain oral instructions to the jury, part of which were -afterwards reduced to writing and filed as a part of the record in the case, and part of which were not reduced to writing, and it is apparent to this court, after a careful consideration of the entire record, that the jury was probably misled as to the law of the case to the substantial prejudice of the defendant by reason of the giving of such oral instructions, the judgment of conviction will be reversed, and the cause remanded.

      Appeal from District Court, Canadian County; Geo. W. Clark, Judge.

    Grover Rhoades was convicted of the crime of robbery, and sentenced to serve a term of ten years’ imprisonment in the state penitentiary, and appeals.
    Reversed and remanded.
    This is an appeal from a judgment of conviction in the district court of Canadian county against the defendant for the crime of robbery, in which a sentence was imposed against him of ten years’ imprisonment in the penitentiary at McAlester.
    The defendant and his brother, Homer Rhoades, were residents of the city of El Reno, Okla., and had been for over 20. years. The defendant at the time of this occurrence was engaged in beeping a rooming house in the northwest-part of El Reno., at' which said house the evidence shows intoxicating drinks, were to be had. Across from the. defendant’s place of business, his brother, Homer Rhoades, had a similar establishment, and it was at or near Homer Rhoades’ place that this alleged crime was committed.
    The prosecuting witness, Truscott, and a man by the name of Ermis, and another by the name of Mosig, happened into El. Reno, on the day of this alleged crime. Ermis claims to have come from Herrington, Kan., and. to have arrived at El Reno about 10 o’clock in the morning. Trus-cott and Mosig came in on the same train that day, arriving about. 10- o’clock at night. Truscott claims to ’ have come from some place in Kansas and Mosig- got on the train at Enid, Okla. Ermis, Truscott, and Mosig all testified that their meeting in El Reno on that day was purely by accident; that there was.no prearrangement to meet there between them, Truscott and Mosig testifying that they were on their way to Oklahoma City, while Ermis testified that he happened into El Reno for'the purpose of selling' some “temperance drinks” called “Temp Brew” and' “Non Tax,” for which he was agent, having a distributing house for these articles in Kansas City, Mo. It appears from the evidence that Mosig and Ermis had been acquainted with each other for some six or seven years, also that Mosig and Truscott bad known each other for some five or six years, but Truscott and Ermis claim not to have known each other before their meeting in El Reno on this occasion.
    Mosig. was a professional gambler, and one commonly Known as a “card sharp.” This he admits. Truscott is shown by his testimony- to be- practically an habitual gambler, although he denies-making a living at gambling^ but his testimony shows that he has wandered about the country considerable and engaged often in the pastime of ; gambling. Ermis also, while engaged in the Wholesale.! liquor business in Kansas City, Mo., was very fond of the sport of gambling, and frequently engaged in it. Accord-"; ing to Mosig, Ermis was what was called by professional gamblers a “sucker.” Rhoades is also shown to be not : averse to participating in the great American game of draw poker, and when these four gentlemen of such similar pro-r clivities met on the night of the 18th of July, 1916, it is not . surprising that a game of draw poker was arranged be- ., tween them. This' game took place on the premises of “Babe” (or Homer) Rhoades in the city of El Reno. It commenced about midnight, and lasted some two hours, when it.broke up in a general row, which resulted in the . institution of this prosecution.
    It seems that Mosig was engaged in the. fine art of.-; ' daubing” the cards, according to his own special process, • the implements for which he carried with him, consisting . of a thimble worn on the forefinger and some special ink.:i The discovery of the process of “daubing” the cards by the--,defendant, Rhoades, broke up the game, and caused the-, trouble. Truseott had won a big “pot” from Rhoades, and • a dispute arose in which the brother of Grover Rhoades,.! Homer Rhoades, grabbed. the cards from the table, with the remark that, “You fellows can’t win any money off of us.” Truseott says that then he put the money in front.. of him into his pocket, and was immediately struck in the face with a beer bottle by the defendant, Grover Rhoades-, . Thereupon the lights went out, and Truseott said that,after-being beat over the head considerably in the house, he-man-aged to get out through the door and onto the street^; where he was followed by the defendant, Grover Rhoades,. who continued to beat him over the head, and took from his person all the money that he had, consisting of $57 which he had taken with him that evening and about $60 additional which he had won in the poker game. Truscott testifies that this money was taken from his person by force ■and by putting him in fear of immediate and serious bodily harm. Shortly after this occurrence, Truscott appeared at the Southern Hotel in El Reno, badly beat up and bleeding from wounds on the head and face. Truscott is corroborated in the main as to what occurred before the lights went out by the witness Ermis.
    The defendant, Rhoades, tells a different story as to what occurred, contending that he did not take any money off of the person of Truscott, but that, when he saw that he was being cheated in the card game by Truscott and his associates, he snatched from the table the money that was in the last “pot,” which Truscott claimed to have won, and put it in his own pocket. Rhoades denies taking any money off the person of Truscott on the outside of the house, or at any other time or place, but admits' that he went out of the house and was with Truscott on the outside of the house, but went out there because Truscott was calling for assistance and to see if he could not help him by getting a doctor to dress his wounds.
    After the trouble subsided, Truscott, Mosig, and Ermis went back to the Southern Hotel. Rhoades also went up there, and left with the night clerk of the hotel $130 in currency. Truscott’s wounds were dressed by a physician, who testified that Truscott appeared somewhat dazed and stated that he had been relieved of some money, but did not state who did it. There is also some evidence that Rhoades told the other parties that they had better get out of town and avoid any further trouble.

      The investigation of the trouble by the officers led to the commencement of this prosecution against Rhoades, and in his subsequent conviction of robbery in the first degree.

      Pruiett, Day & Sniggs, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Counsel for defendants group the second and fourth assignments of error, and discuss the same together. Such assignments are: *

“(2) The verdict is contrary to the law and the evidence.”

“(4) The court erred in overruling the demurrer of the defendant to the evidence of the state.”

Under these assignments, counsel urge that the information is defective, also that there was a variance between the allegations of the information and the proof of the crime of which the defendant was convicted, and for these reasons it is urged that the overruling of the demurrer of the defendant to the. evidence was reversible error. The argument interposed, or rather the reasons given, in support of the assertion that the second and fourth assignments of error constitute grounds for reversal of the judgment of conviction, have no relation whatever to said assignments.

No demurrer was interposed to the information; neither was any request .made of the trial court to instruct the jury to return a verdict of not guilty because of variance between the allegations and the proof. The information not being attacked in the trial court, it is too late to urge that the same is defective for the first time in 'this"court. An examination of the information, however, 'discloses á sufficient charge of' robbery in the first'degree against the defendant, and had a demurrer been interposed, it would not have been error to overrule the same. There is no merit in the assignment that the court erred in- overruling the demurrer of the defendant to the evidence of the state. The testimony of Truscott and Ermis, if believed by the jury, was sufficient to support a conviction pf robbery in the first degree. Caido v. State, 7 Okla. Cr. 139, 122 Pac. 734; Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176; Bell v. State, 14 Okla. Cr. 167, 168 Pac. 827.

The third, fifth, and eighth assignments of error are grouped together and presented as one proposition. Said assignments are as follows:

“(3) The court erred in admitting over the objection of defendant incompetent, irrelevant, and immaterial testimony.”

“(5) The court erred in refusing to instruct the jury to the effect that, if the defendant’s only purpose was to recover money that he was cheated out of or lost in the : game by fraudulent means upon the part of Truscott, they '■¡■¡hould acquit him.”

' “(8) The court erred in refusing to define robbery in the second degree in its instructions to the jury.”

Assignment No. 8 will be considered first. An exami- ’ nation of the record discloses no refusal upon the part of the trial court to instruct on or define robbery in the second degree. Counsel for defendant made no such request of the court. Section 5905, Rev. Laws 1910, provides:

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

From the foregoing section it appears that the trial court must instruct the jury on all matters of law which it thinks necessary for their information in giving a verdict. The court is not required to instruct on the law applicable to any degree of the crime other than that charged unless there is evidence which tends to establish a degree different and less than that charged. In this case the state’s evidence established, if it established the crime of robbery at all, robbery in the first degree. The evidence on the part of the defendant did not tend to reduce the crime-to robbery in the second degree, but the defendant interposed a complete defense to the crime; one which would justify his acquittal either of robbery in the first or the second, degree. As no issue was presented by the evidence which tended in any way to reduce the crime to that of robbery in the second degree, the court was not required, in giving the law of the case, to instruct upon-that issue. Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 555; Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 710.

The fifth assignment of error is without merit. There is no evidence in the record that would require the court to instruct in substance on the matters assigned therein. The defendant denied entirely taking any money from th'e prosecuting witness as charged in the information. His defense was that the money was not taken by him forcibly from the person of the defendant, or by putting him in fear, but that he grabbed some money off of the gambling table, and that the money was not in the possession of the defendant.

The assignment that the court erred in admitting incompetent, irrelevant, and immaterial testimony is apparently abandoned, as the brief nowhere sets out in substance the testimony of any witness which it is alleged was erroneously admitted, as required by rule 7 of this court (12 Okla. Cr. viii, 165 Pac. x). As was recently held in the case of Bradshaw v. State, 16 Okla. Cr. —, 185 Pac. 1102:

“Where counsel for • defendant have wholly failed to comply with rule 7 of this court by incorporating in the brief ‘the full substance of the evidence admitted or rejected, stating specifically the objection thereto when the alleged error relates to the admission or rejection of evidence.’ * * * this court will not closely scrutinize the record for the purpose of substantiating the defendant’s claim.”

In presenting alleged errors of this kind, it is the duty of counsel, as required by the rule of this court, to present the matter in the brief in such a way that this court may pass intelligently upon the merits of the question without having to search the entire record for the purpose of determining whether any error has been committed. Mixed questions of law and fact like this involve a very considerable time in making research, where rule 7 of this court is not complied with. The numerous cases appealed to this court preclude, • and the court is not required to brief these questions, and counsel should at least take time, where the burden is upon them, to present such questions as this in accordance with the court’s rule, or else the court will be compelled to treat the same as practically abandoned, and therefore without merit.

It is also contended that the court erred in not granting a new trial on the ground of newly discovered evidence. The newly discovered evidence is contained in an affidavit, attached as an exhibit to the motion for a new trial and in support thereof, of one W. I. Ritchey, who states in substance:

“That he is a resident of Oklahoma City, and that, about two weeks prior to the time Grover Rhoades was charged with robbing B. B. Truscott, he, the said Ritchey, had a conversation with Truscott in which Truscott told him that he, Truscott, and Mosig were going to El Reno and ‘trim’ the Rhoades boys; that Truscott showed affiant the daub and copping wax which he said he would use if he and Mosig could get the Rhoades boys to play black jack; they could cheat them out. of all their money in a short time; that about a month before said conversation affiant had a letter from Mosig, in which he stated he knew where he and Truscott could get some money, and asked affiant if he knew where Truscott was at that time, and, if so, to tell Truscott Mosig wanted him.”

It was clearly not error for the court to overrule the motion for a continuance on this ground, as the evidence was not material to the issues, and for the further reason that it was to 'a large extent cumulative, because the witness Mosig testified that he used the “daub and copping, wax” and was caught cheating in the game of draw poker by the defendant, and it was apparent in the trial that the fact that Mosig was caught cheating resulted in breaking up the game and the taking of the prosecuting witness’ money by the defendant. Motions for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and unless the newly discovered evidence is material to the issues, and it is clearly probable that upon a subsequent trial a different result would occur because of such evidence, a new trial should not be granted. We find no error in overruling defendant’s motion for a new trial on the ground of newly discovered evidence.

In this case the record shows that the verdict of the jury was returned on the 18th day of August, 1916, while instructions Nos. 13 and 14, given orally by the court, were not filed and did not become a part of the record in the case until the 19th day of August, 1916. There is nothing in the record to show whether the jury ever received these instructions in writing before the jury concluded its deliberations. Furthermore, the record affirmatively discloses that all the law given to the jury orally by the court was not fully covered by the additional instructions' which were afterwards reduced to writing and filed as part of the record in the case.

It appears also that in.the colloquy that took place between the trial judge and some members of the jury cer-portions of the court’s statements to the jury did not fully and fairly' to the defendant state the law of the case as applicable to the evidence, and from the record before us it is apparent that the jury was to some appreciable extent misled by matters stated orally by the court which were not at any time incorporated into the written instructions.

Again it appears as a part of the discourse between the trial judge and members of the jury that instruction No. 9, which contained the only affirmative law covering the defense interposed by the defendant, was withdrawn from consideration by the jury, and two additional instructions submitted in lieu therof; yet the record before us indicates that • instruction No. 9 was thereafter, attempted .to be amended . orally, and said • instruction is., incorporated in the record as part of the instructions originally given (by the trial court, although amended by interlineation. It is apparent that, if the jury got the impression that instruction No. 9 was intended to be withdrawn from consideration the defendant did not receive the benefit of any affirmative instruction covering the law applicable to the defense interposed by him. The record before us as to the intention of the trial judge relative to the withdrawal of instruction No. 9 is surrounded with considerable doubt. Had the court left the jury with the instruction as first given, this court would not hesitate to affirm the judgment of conviction, because from such instructions the law of the case was fairly presented without substantial prejudice to the defendant’s cause.

In the motion for a new trial the matters occurring between the court and the jury when the jury returned into open court for further information were set up as grounds for reversal, and acted upon adversely to the contentions of the defendant, and proper exceptions saved.

. It is apparent to this court that in giving further instructions orally to the jury, the jury was misled as to the law of the case, to the substantial prejudice of the defendant, and that he, by reason thereof, did not receive that fair and impartial trial to which he is entitled under the laws of this state.

After a careful investigation of the entire record in this case, the conclusion is reached that the defendant is entitled to the benefit of a new trial in order that his ground of defense may be more accurately and correctly stated to the jury in the court’s instructions, to the end that substantial justice may be afforded him.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: PER CURIAM.

text:
    JOHN W. WRIGHT v. STATE.
    No. A-3258.
    Opinion Filed Oct. 18, 1919.
    (184 Pac. 158.)
    INDICTMENT AND INFORMATION — Information Under Habitual Crimlinal Act. — Requisites. “An information, in order to charge a crime under the Habitual Criminal Act, should contain allegations of fact, setting forth that the offense charged is a second or subsequent violation of the law, and that the person charged has been convicted in a court of competent jurisdiction. In this respect, the information must be definite and certain."

      Appeal from District. Court, McCurtain County; C. E. Dudley, Judge.

    John W. Wright was convicted of a second offense of violating the prohibitory liquor law, and he appeals.
    Reversed.

      Claud P. Spriggs and John C. Earl, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried upon an information which charged as follows:

“The said John W. Wright did in said county on or about the said 11th day of November, 1916, unlawfully, willfully and feloniously have in his possession about seven gallons of whisky, the exact amount of which is to this informant unknown, with the unlawful intent on the part of him, the said John W. Wright, to dispose of the same in violation of the prohibitory laws, he the said1 John' W. Wright having been heretofore convicted and served sentence for the same offense, contrary to,” etc.

The jury rendered the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, John Wright, guilty as charged in the information herein, and fix his punishment at a fine of fifty dollars and imprisonment in the penitentiary for the period of three years.”

To reverse the judgment rendered in pursuance of the verdict, the defendant appeals.

Upon the record in this case, the sole question which is presented for the decision of this court is the sufficiency of the- evidence to sustain the verdict and judgment of conviction. It appears that the only proof of a former conviction in this case was evidence introduced by the court clerk, identifying an information filed in the county court of said county, charging the defendant with the unlawful possession of intoxicating liquor, and the verdict of the jury rendered thereon. The state failed to offer in evidence the judgment of conviction.

In answer to the defendant’s brief, the Attorney General has filed a confession of error in part as follows:

“We agree with counsel that under the ruling in the cases-of Fowler v. State, 14 Okla. Cr. 316, 170 Pac. 917, and Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637, the information and verdict contained in the record in connection with the former conviction were inadmissible in evidence in this case. In the Fowler Case, supra, this court held that an information containing an allegation of a plea of guilty by the accused, was not an allegation of a ‘conviction,’ and that it was necessary to plead and prove the judgment of conviction in the previous case. A verdict of a jury arises to no higher legal plane than a plea of guilty, and eliminating from this case the verdict and information erroneously admitted in evidence, there is nothing left in the way of proof showing that this defendant had previously violated the prohibition laws. It appears that the prosecution was given permission to introduce in evidence the judgment roll, or journal entry of the county court showing this conviction; but the record fails to show what it was, or that it was introduced.

“Counsel for defendant did not direct their demurrer to the evidence on this ground of.total failure of proof pertaining to the prior conviction, but raised a separate and distinct question already briefly disclosed. However, in view of the Tucker and Fowler Cases, supra, and what seems to be the almost universal rule of all the courts, that these strictly statutory crimes pertaining to offenses strictly malum prohibitum as to the essential ingredients thereof, ‘no intendment, inference or implication will be indulged in’ to sustain the validity of a conviction had under these wise, but not seldom drastic, statutes, we admit that the evidence was fundamentally insufficient, and therefore defendant’s failure to demur on that ground, or request the court for a peremptory instruction, did not cure the defect, and that the judgment in this case should be reversed.”

After a careful examination of the record, the conclusion which we reach is that the confession of error is well founded. While no objection was made to the information, it 7nay be well for us to say here that the same is insufficient to properly charge a crime under the Habitual Criminal Act, Laws 1910-11, c. 70, sec. 18. In the case of Fowler v. State, supra, it is held:

“An information, in order to charge a crime under the,;i Habitual Criminal Act, * * * should contain allegations of. fact, setting forth that the offense charged is a second or/, subsequent violation of the law, and 'that the person charged has been convicted in a court of competent jurisdiction. In this respect, the information must be definite . and certain.”

Because the evidence is insufficient to show a former' • conviction, the judgment is reversed.


text:
    EBB WELLS v. STATE.
    No. A-3016.
    Opinion Filed Oct. 21, 1919.
    (184 Pac. 465.)
    LARCENY — Sufficiency of Evidence. The record in this case carefully examined, and found that the verdict of the jury is sufficiently ■ supported by the evidence, and that no error prejudicial to the'; defendant was committed in the trial of the ease.

      Appeal from District Court, Washita County; Thomas A. Edwards, Judge.

    Ebb Wells was- convicted of grand larceny, and he-; appeals.
    Affirmed.

      Smith, Jones & Smith, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst... Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Ebb Wells, hereinafter called defendant, was, with A. J. Seimen, in-. formed against jointly for grand larceny, both of them con-., victed, and the defendant sentenced to be confined in the • •state reformatory at Granite, Okla., for a period of three years. To reverse the judgment rendered, he prosecutes this appeal.

The record does not disclose that A. J. Seimen was sentenced upon his conviction, or what disposition was made of the case as to him. The evidence in the case tended to show that B. P. Bird attended a dance in Canute, Qkla., on the 15th day of February, 1917, and at the time owned and had upon his person a watch of the value of $20, a $5 -bill, a little silver, $2 or $3, five Buffalo nickels, and a pocketbook in which was a check for $5; that he knew the defendant ánd said Seimen, who were present at said dance; that said Bird was drinking and partly intoxicated, and after the dance, and at the instance of Seimen and defendant, and accompanied by them, started towards the depot in said town, and on their way thereto the person of said Bird was felt over by said Seimen, to which Bird objected, and afterwards he was knocked down and stamped by the defendant; that thereafter Bird discovered the loss of his said personal property, and complained thereof to a deputy sheriff, who accompanied him to the depot, and there found and searched the defendant and Seitmen, but did not find any of said described personal property on the person of either one of them, but thereafter said pocketbook and check were found just without said depot on the ground, and under the seat occupied by Seimen were found five Buffalo nickels, and on the floor nearby was found a watch, and said pocketbook and watch were identified by Bird as belonging to him.

There was also evidence tending to show that the defendant and Seimen, on the night of said dance in Canute sought to get one Miller to go to said depot with them, got hold of Miller’s pockets, and turned them out; that Miller left them and went to said depot, and after he got to the depot Seimen came and said “he would have to go and find his partner,” and went out, and shortly thereafter he and the defendant together returned to said depot; that on the same night they caught one S., and tore his coat, at which time the said Bird was with them, and thereupon S. said .to Bird, “Ben, let’s go home”; and Ben replied, “In a few minutes:”; and defendant' started after S. and made him run; and that the defendant and Seimen talked to the said deputy sheriff that night, and denied that they had seen the said Bird. There was also other evidence tending circumstantially to support the theory of the state that the defendant and Seimen were accomplices in the commission of the offense charged.

The defendant and Seimen each testified in their own behalf, and were the only witnesses introduced by them, or either of them, and each of them positively testified that-they did not have any knowledge of, or any connection whatever with, the commission of the crime charged against them; admitted that they were at the said dance with Bird, and that they started to the depot" with him, and that when en route to the depot the defendant had a fight, and that they had gone to the depot for the purpose of going to another town.

The defendant filed a motion for a new trial upon the ground, atnong other grounds, of newly discovered evidence; the newly discovered evidence being contained in an affidavit made 'by said A. J. Seimen while in jail after his conviction, in which he fully refuted the evidence given by him on the trial of this case, and asserted that he alone, without the knowledge or assistance of the defendant, committed the larceny charged while at the dance, completely exonerating the defendant from any complicity therein in any manner, and that he : (affiant) had not communicated the facts stated in said 'affidavit to the defendant, or to any one, until after the trial in this case had been had. The court announced that it did not believe the averments of the said affidavit, overruled the motion for a new trial, and the defendant excepted.

.. . The defendant most earnestly insists that the evidence ■ .is not sufficient to support the verdict rendered. With this contention we cannot agree. The undenied, evidence is that the larceny of the personal property described in the infor..mation was committed, and while the evidence is in part -circumstantial as to the defendant being an accomplice therein, the evidence we think warranted the jury in finding that the défendant and Seimen ac+ed jointly in the com- . mission of the offense charged.

“All persons concerned in the commission of a crime, i.* * * and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” Section 2104, Rev. Laws 1910.

“A conspiracy may be proved by circumstantial evidence.” Ex parte Hayes, 6 Okla. Cr. 321, 118 Pac. 609; Washmood v. United States, 10 Okla. Cr. 254, 136 Pac. 184.

“In cases depending upon circumstantial evidence, ' where the circumstances proven are not only consistent with the guilt of a defendant, but are also inconsistent with *:his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the court or jury.” Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749.

• That the jury is the exclusive judge of the weight of the testimony is a well-established canon of law.

“The verdict of a jury will not be set aside for want of evidence to sustain it, when there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt.” Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625; Arnold v. State, 15 Okla. 519, 178 Pac. 897.

The defendant further complains that the preliminary court Which committed the defendant wias not an existing court, and insists that the verdict should be set aside on that account, hut does not raise this question in his motion for a new trial, nor in his petition in error, and therefore such queston will not be considered by this court.

“Errors occurring during the trial cannot be considered by this court, unless they were incorporated in the motion for a new trial, and thereby submitted to the trial court, and its rulings thereon excepted to, and afterwards assigned for error in this court.” Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202.

However, we deem it not improper to say that the attack upon the legality of the preliminary court which held the defendant to answer in this case is without the slightest merit; the said justice of the peace being at least a de facto officer, and his official acts binding upon the public and third persons.

“A person in undisputed possession of the office of justice of the peace and exercising the functions properly belonging thereto under color of title to such office is a de facto justice of the peace, and his official acts are binding on the public and third persons.” Ex parte Ed. Hand, 13 Okla. Cr. 614, 166 Pac. 449.

Seimen on the trial of the case having testified that he had no knowledge of, or connection with, the commission of the larceny charged, certainly no evidential weight could be given to the said newly discovered evidence, the aver-merits in his affidavit “that he alone committed the crime charged, and did so without the knowledge or assistance of the defendant,” and the court did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    JACK MATHEWS v. STATE.
    No. A-2942.
    Opinion Filed Oct. 28, 1919.
    (184 Pac. 468.)
    1. HOMICIDE — Self-Defense—Evidence. Where in a homicide case self-defense is pleaded, specific acts of violence on the part of the deceased towards others than the defendant may, if known to the defendant prior to the homicide, be shown in evidence.
    2. APPEAL AND ERROR — Requested Instructions — Reversible Error. Paragraphs of instructions given and excepted to by the defendant must be considered in connection with all of the instructions given; and, unless when so considered prejudicial error appears, the paragraphs of the instructions complained of do not necessarily constitute reversible error.
    3. HOMICIDE — Dying Declarations — Admissibility. When the deceased on the day be was shot, and within a very few hours thereafter (and who died the next day from the effects of said shot), told a rabbi to pray for his (deceased’s) soul, saying, ,!I know I will die,” that was a sufficient predicate to show that statements made by the deceased to such rabbi as to how such difficulty resulting in his being shot occurred were made under a sense of impending death, and such statements of the deceased are properly admitted in evidence.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

      Jack Mathews was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded.

      H. B. Martin and A. F. Moss, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Jack Mathews, hereinafter referred to as defendant, was informed against for the murder of Sam Lyons, convicted of manslaughter in the first degree, and sentenced to be confined in the penitentiary at McAlester for a term of six years. To reverse the judgment rendered, he prosecutes this appeal.

The undisputed evidence is that the defendant and deceased had a disagreement about some meters that were in a rooming house purchased by the defendant from the deceased; that the defendant went to a furniture store conducted by the deceased in the city of Sapulpa, and the defendant and deceased engaged in a quarrel, in which profane language was used, and both parties became angry; that the defendant left the store and stopped on the sidewalk in front of. the store; that the deceased armed himself with a pistol and went out to where defendant was; and that the defendant shot the deceased, from the effects of which said shot the deceased died the following day; that the arm of the defendant, shortly before the homicide, had been broken, and that at the time of the homicide the defendant had not recovered from said disability, and that the deceased was a larger man than the defendant.

The evidence was in sharp conflict as to what occurred between the said deceased and defendant when they met on the sidewalk in front of said store, there being evidence on the part of the state tending to show that immediately prior thereto the defendant invited the deceased to come out of his store, and stating what defendant would do to him if he came out on the sidewalk; that the deceased picked up a gun and went to where the defendant was, and they engaged in a difficulty in which the deceased hit the defendant on the head with the gun, and that the defendant then shot the deceased; that the evidence on the part of the defense tended to show that prior to the homicide the defendant had legal authority to carry a pistol; that the defendant had known the deceased some eight or riñe years, and during said time their relations had been friendly up to the time of the homicide; that after a controversy with the deceased in his store the defendant walked out of said store and stopped in front' of said store, and the deceased came out with a gun in his hands, and with it hit the defendant on the head several times and staggered him; that then the deceased turned the gun around in his hand, with the barrel pointing toward the defendant, and that the defendant, thinking the deceased was going to shoot him, immediately drew his pistol and shot the deceased; and that the defendant did not invite the deceased to come out to the sidewalk where the defendant was.

The evidence further shows that the deceased was seen in a hospital at Tulsa, shortly after he was shot by defendant, and asked a rabbi present “to pray for his soul,” saying “I know I am going to die,” and immediately thereafter stated in the presence of said rabbi and others in response to a question as to how the difficulty occurred, that Mr. Mathews called him over the phone and asked if he took out some meters; that he said he did, and that Mr. Mathews came over to the store and abused him and called him all kinds of vile names, and invited him outside; that he picked up a gun and.followed him outside; that he hit the defendant with the gun, and the defendant shot him. The defendant objected to the admission of the statements made to said rabbi and others upon the ground that a proper predicate had not been laid showing that the same were dying declarations. The court overruled the objection, and the defendant excepted. The defendant offered to prove by himself “that prior to the homicide he heard from persons who claimed to have seen a difficulty between the deceased and Dr. Bone, a physician living in the city of Sapulpa, that the deceased had attacked Dr. Bone with a common ax and had run him away from his house,” and also offered to prove by himself that he knew,.by having heard, of an assault made by the deceased upon a man by the name of S. N. Terry, a blacksmith who lives in Tulsa, “in which assault the deceased, by use of a deadly weapon, had run Mr. Terry out of his blacksmith shop.” The court excluded said offered testimony, and the defendant excepted.

The defendant objected, and excepted severally to four paragraphs of the instructions given the jury by the court, which said paragraphs we deem unnecessary to set out.

The defendant complains that the court erred in admitting in evidence, as dying declarations, the statements made by the deceased, after he was shot, to said rabbi and„ others as to how the difficulty in which he was shot occurred, and insists that a proper predicate was not laid for same, because it was not shown that said statements were made by the deceased under the sense of impending death, and this contention we think not well taken. The statement, “I am going to die,” with the request to a rabbi that his soul be prayed for, together with the physical condition of the deceased at the time, and his early death thereafter from the wound inflicted upon him by the defendant shows that at the time said statements were made the deceased was under the sense of impending death, and was a sufficient predicate for the admission of said statements as dying declarations, and the court did not err in admitting the same. Paden v. State, 13 Okla. Cr. 585, 165 Pac. 1155; Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279.

The defendant also complains that the court committed reversible error in excluding the offered evidence of the defendant of specific acts of violence on the part of the deceased toward others than the defendant, and with this contention we are in accord, and think that the trial court committed prejudicial error in excluding the evidence offered of said specific acts of violence.

In Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532, it is held:

“In a homicide case, where the defense is justifiable homicide in self-defense, evidence was offered on behalf of the defendant to prove particular instances of violence and quarrelsome conduct on the part of the deceased, these acts of violence and misconduct being known to the defendant. Held competent for the purpose of showing the disposition of the deceased to become violent without provocation, and as tending to show his condition of mind, and violent temper on such occasions, and his disposition to use deadly weapons.”

The holding in Mulkey v. State, supra, is in accord with the holding in Sneed v. Territory, 16 Okla. 641, 86 Pac. 70, 8 Ann. Cas. 354, which said case is quoted from with approval in Mulkey v. State, supra.

We have carefully considered the paragraphs of the instructions given, and excepted to by defendant, and are unable to see that the- defendant has discharged the burden that is upon him “to clearly point out error in any one of said paragraphs complained of, and support the same with argument and authority.” Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

The paragraphs of the instructions complained of must be considered in connection with all of the instructions given; and, when so considered, we are of the opinion that it is not apparent that the giving of said paragraphs “has probably resulted in a miscarriage of justice, or injuriously affected the substantial rights of the defendant.” Penn v. State, supra; Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165.

For the error pointed out, the judgment of the trial court is reversed, and the cause remanded.

DOYLE, P. J., and MATSON, J., concur.


text:
    W. E. WILSON v. STATE.
    No. A-3098.
    Opinion Filed Nov. 1, 1919.
    (184 Pac. 603.)
    B1GAMV — Jurisdiction—Remarriage Within Six Mhnths From Divorce. The penal provisions of section 4971, Revised Laws 1910, are directed solely against the remarriage of either party to a divorce proceeding to any other person within six months immediately subsequent to the rendition of the decree of divorce. Held, the jurisdiction of a prosecution under such statute is in the county where the second marriage takes place; and held, further, where one of the parties to such decree, within the prohibited period of six months, marries another person without the state, and subsequently returns and cohabits with such person in this state, the subsequent cohabitation not being of the gist of the offense defined by said statute, there is no jurisdiction to prosecute thereunder in this state..

      Appeal from District Court, Cotton County; Cham Jones, Judge.

    W. E. Wilson was convicted >of the crime of bigamy, and sentenced to serve a term of one year’s imprisonment in the state penitentiary, and he appeals.
    Reversed and remanded.

      A. ,H. Ja/pp and J. F. Thomas, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst, Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of 'Cotton county, wherein the defendant was informed against and convicted of the crime of bigamy, and sentenced to serve a term of one year’s imprisonment in the state penitentiary. From' this judgment of conviction he has appealed to" this court, and asks that the judgment be reversed on the ground that the count erred in overruling the demurrer to the information.

The information, omitting the caption, is as follows:

“I, Fren Hansen, county attorney of the county of Cotton and state of Oklahoma, duly authorized and empowered by law to inform of offenses committed and triable within said county and state, in the name and by the authority, of the state of Oklahoma come now here and give the court to understand and be informed that at and within said county and state and while W. E. Wilson and Barbara Wilson were legally wedded and were husband and wife, and after living together for several years in Cotton county, state of Oklahoma, and holding themselves out in said county as husband and wife, that in a certain civil action wherein the said Barbara Wilson was plaintiff and W. E. Wilson was defendant, then pending in the district court of said County and state, and whereof the said court had jurisdiction, a judgment and decree was rendered and made and dated as of the 4th day of September, 1916, whereby the said Barbara Wilson was granted a divorce from the said W. E. Wilson, the above-named defendant, and that thereafter, to wit, on the 11th day of November, 1916, and within six months from and after the said rendition and making of said judgment and decree, the said W. E. Wilson and the said Barbara Wilson then being still living and said judgment and decree of divorcement so rendered, made, and dated as aforesaid not being absolute or in effect, knowingly, willfully, unlawfully, and feloni-, ously married and entered into a marriage relationship with another woman than the said Barbara Wilson, namely Alphretta Tlewett. a resident of Oklahoma, said marriage being entered into within the state of Texas, and that thereafter, to wit, at all times from and after the 20th day of November, 1916, to the present time, he has knowingly, willfully, unlawfully, and feloniously lived and cohabited with the said Alphretta Hewett as his wife at and within the county of Cotton and state of Okahoma, contrary to the form of the statute in such case made and provided.”

The specific ground of demurrer was that the information did not state facts sufficient to constitute an offense against the laws of the state. The statute upon which this information is based (section 4971, Rev. Laws 1910) in part provides:

“It shall be unlawful in any event for either party in such divorce case to marry any other person within six months from the date of the decree of divorcement. * * * Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”

Section 4972, Rev. Laws 1910, provides:

“Every person' convicted of bigamy, as such offense is defined in. the foregoing section, shall be punished by imprisonment. in the penitentiary for a term of not less .than one year nor more than three years.”

It is the contention of counsel for the defendant that the above special statutory enactment is directed specifically against the remarriage of parties to> divorce actions to any .other person within the period of six months from the date of the decree of divorcement, and not against a subsequent cohabitation of the parties in this state; that, in the absence of some such specific provision in the statute to the contrary, the inhibition is against a remarriage within the jurisdiction of the state; that said statute cannot be given an extraterritorial effect. The state contends to the contrary.

This court is impelled to the conclusion that the contention of counsel for the defendant is correct. It is clear, from a reading of the foregoing statute, that it is directed solely against the remarriage of either party to the divorce procéeding to another person within six months immediately subsequent to the rendition of the decree. There is no specific provision in the statute against the marriage of either party to another person elsewhere than in the state, nor is there any provision against the marriage of either of the parties to another person outside of the state and the subsequent cohabitation of the parties in this state. Some states have enacted statutes defining it to be bigamy for a married person to marry any other person during the life of the former husband or wife, whether the second marriage shall take place in such state or elsewhere, and the party so marrying and returning to such state may be punished in any .county where he shall be apprehended. Other states have made punishable the mere act of illegal cohabitation in such state with the second spouse the gist of the offense in either event being the second marriage and subsequent illegal cohabitation. 3 R. C. L. 796, sec. 1; State v. Stewart, 194 Mo. 345, 92 S. W. 878, 112 Am. St. Rep. 529, 5 Ann. Cas. 963, and cases cited in note thereto. Such statutes have been uniformly held to be valid and constitutional enactments.

But it is apparent that the statute before us contains no such provisions as are contained in the statutes of.Missouri, Tennessee, and other states. In the absence of such provisions, it has been uniformly held that the jurisdiction of the offense is in the state where the second marriage is solemnized. 3 R. C. L. 797, sec. 3, and cases cited under note 4; also cases cited in note 5 Ann. Cas. 968. In the case of State v. Ray, 151 N. C. 710, 66 S. E. 204, 134 Am. St. Rep. 1005, 19 Ann. Cas. 566, the Supreme Court of North Carolina held:

“The North Carolina statute (Revisal, 1905, sec. 3361) making it a crime for a person having a lawful husband or wife living to marry a second time, whether the second marriage is in ‘North Carolina or elsewhere,’ is unconstitutional in so far as it relates to second marriages outside the state.”

A further provision contained in the statute before us, “such marriage shall be absolutely void,” indicates the legislative intent to deal only with remarriages consummated within the state. Such a construction renders the statute clearly constitutional, and gives force and effect in this state to marriages consummated in other states valid under their laws.

Our statute is directed solely against the second marriage. The subsequent cohabitation in'this state is no part of the offense. It is the opinion of this court that the statute can be given no extraterritorial effect, and that until the Legislature has seen fit to broaden its terms, as has been done in the states heretofore indicated, it cannot be held that the information in this case stated the offense of bigamy as defined by said statute, and of which the ■ defendant was convicted, when it is alleged' therein that the remarriage took place in another state.

For the reasons stated, the judgment is reversed, and the cause remanded, with instructions that the prosecution be dismissed.

DOYLE, P. J., and ARMSTRONG, J., concur. .


author: PER CURIAM:

text:
    WILEY GUNTER et al. v. STATE.
    No. A-3196.
    Opinion Filed Nov. 1, 1919.
    (184 Pac. 797.)
    1. LARCENY — Allegation of Ownership in Information. Information for petit larceny charging that the defendants stole coal, “the property of the D. Beams Drilling Company,” held sufficient allegation of the ownership of such property in such a prosecution under the criminal procedure of this state.
    2. APPEAL AND ERROR — Conviction—Conflicting Evidence. Where there is evidence in the record from which the jury could reasonably infer that the defendants are guilty of the crime charged, the judgment of conviction will not be reversed because the evidence is conflicting.
    3. APPEAL AND ERROR — Exceptions—Instructions. Where 'the record shows no objection or exception to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other than fundamental errors.
    4. TRIAL — Sufficiency of Instructions. The instructions must be considered as a whole, and when considered- together, if they fairly -and correctly state the law applicable to the ease, they will be sufficient.

      Appeal from County ' Court, Washita County; Owen F. Renegar, Judge.

      ' Wiley Gunter and Oliver Robinson were jointly tried and convicted of the crime ;of petit larceny and each appeals.
    Affirmed.

      Massingale & Duff, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM:

This is an appeal from the county court of Washita county, wherein the defendants were, upon a joint trial, each convicted of the crime of petit larceny, and each sentenced to serve a term of imprisonment in the county jail of 20 days and to pay a fine of $50.

It is first contended that the information does not state facts sufficient to constitute a public offense. No demurrer was filed to the information in the lower court on this ground. The first attack made against the information was by way of objection to the introduction of evidence on the ground stated. The particular objection to the information is that it does not sufficiently designate and describe the name of the owner of the property charged to have been stolen. The information alleges that the defendants stole coal, “the property of the D. Beams Drilling Company,” without alleging whether said company is a corporation or a partnership and, if a partnership, the information is alleged to be defective because it fails to give the individual names of .the members thereof.

At common law the information would have been insufficient; but the common-law rule does not obtain in this state, because of the enactment of section 574S, Rev. Laws 3910, which provides:

“When an offense involves the commission of or an attempt to commit, a private injury, and is described with ■sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

The following decisions of this and other states support the conclusion that the information sufficiently describes the owner of the property alleged to have been stolen under a statute like the foregoing: Martin v. Terr., 4 Okla. 105, 43 Pac. 1067; Ran v. State, 7 Okla. Cr. 349, 123 Pac. 1037; Andrews v. State, 100 Ark. 184, 139 S. W. 1134; Ivy v. State, 109 Ark. 446, 160 S. W. 208.

It is also contended that the verdict is not sustained by the evidence. There is a sharp conflict in the evidence, and, had the jury believed the evidence of the defendants and their witnesses, an acquittal should have followed. However, the testimony of the state’s witnesses supports the theory that these defendants were together in an automobile about 1 o’clock at night, and drove up to an oil derrick not far from the town of Foss, in said Washita county, where a quantity of coal was kept for use in drilling an oil well. That the defendant Wiley Gunter got out of the car, and that the defendant Oliver Robinson, who was driving the car, waited for him in a public highway while the lights on the car were turned off ; that Gunter went onto the premises of the drilling company and yelled, and, receiving no reply, proceeded to where the coal was stored and picked up a large chunk of coal, weighing about 100 pounds, and was in the act of carrying it to the public highway in the direction of where the automobile was located, when he was discovered by the night watchman, told to halt, and, upon his refusal to do so, was shot. Gun-ter got up, got into the car and the two drove away. Later in the morning, about 2 o’clock, they were arrested in the town of Foss where Gunter had gone to have his wound dressed. The defendants admit that they were on the scene, but Gunter claims that be was drunk that night, and that Robinson was driving him around to sober him up, and that he stopped at the oil derrick to get a drink of water. It appears also from the evidence that both defendants had previously worked at the oil derrick and were familiar with the premises.

While the evidence is conflicting, the jury having determined the conflict against the defendants, and there being evidence in the record from which the jury could reasonably infer that the purpose of the defendants’ visiting the oil derrick at 1 o’clock in the morning was to steal coal, and that they were caught in the act of stealing coal from such premises, the judgment will not be reversed because of the alleged insufficiency of the evidence.

The following instruction is complained of for the reason that the term “reasonable doubt” is not used therein:

“You are instructed that before the defendants, or either of them, can be convicted of the crime of theft as charged in the information, it is incumbent upon the state to prove, among other things, that the coal in question was the property of the D. Beams Drilling Company, and that said coal was taken from the said D. Beams Drilling Company, without its consent and with the purpose on the part of said defendant or defendants to appropriate the same to his or their benefit and, unless these facts have been proven, it will be your duty to acquit the defendants.”

The record does not show that any objection was made or exception taken to the giving of this instruction. In another instruction, the court told the jury that the defendants were presumed to be innocent, and that—

“Such presumption abides with them throughout the trial of the case until the evidence convinces you to the contrary beyond a reasonable doubt, and in this connection you are instructed that the burden of proof is upon the state to prove the guilt of the defendants as charged in the information beyond a reasonable doubt.”

Also, in another instruction, the jury was told that—

“You are not at liberty to single out any one instruction or paragraph of the charge, and consider to the exclusion of the other instructions or paragraphs; but you shall take each and every instruction or paragraph of the charge- and consider them as a whole in making up your verdict.”

It has been held by this court:

“Where the record shows no objection or exception to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other than fundamental errors on appeal.” Ford v. State, 5 Okla. Cr. 241, 114 Pac. 274.

Also:

“The instructions must be considered as a whole, and,, when considered together, if they fairly and correctly state the law applicable to the case, they will be sufficient.” Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165; Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 707.

Finding the grounds urged for reversal of these judgments to be without -merit, and such as did not result in a miscarriage of justice or deprive the defendants of a constitutional .or statutory right to their prejudice, the judgment as to each defendant is affirmed.


text:
    GEORGE BUNDY v. STATE.
    No. A-2832.
    Opinion Filed Nov. 1, 1919.
    (184 Pac. 795.)
    1. PARTIES TO OFFENSES — “Principals.” All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present,' are “principals.” .
    2. INTOXICATING LIQUORS — Unlawful Sale-Evidence. . Thc-reeord in this case carefully examined, and the evidence found sufficient to sustain the verdict rendered, and that no reversible error was committed in the trial of the case.

      Appeal from County Court, Comanche County; R. J. Ray, Judge.

    George Bundy was convicted of violating the prohibitory liquor laws, and he appeals.
    Affirmed.

      Johnson & Stevens, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst.' Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, George Bundy, hereinafter designated defendant, and one J. H. Lewis, were jointly charged with unlawfully selling intoxicating liquors to Will George on April 3, 1916. Upon his' separate trial he was convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $160' and the costs, and to stand committed until the said' fine and costs were fully paid. To reverse the judgment rendered, the defendant prosecutes this appeal. J. H. Lewis entered- a plea of guilty. :

The uncontradicted evidence in the case is: That the defendant was, at the time the offense is alleged to have been committed, and for several years prior thereto, engaged in the cigar and tobacco business in Lawton, Comanche county, Okla., his place of business being known as the “Mogul Cigar Store”; that the said defendant, at the time alleged in the information that said intoxicating liquors were sold, and for several years prior thereto, at various times, employed J. H. Lewis as a clerk in his said business ; and that, at the time of the said alleged sale, the said Lewis was so employed, and was seen behind the counter of said cigar store “waiting upon the trade”; that, for six or seven years prior to said alleged sale, the defendant rented from the owner of the building the room in which said business was conducted; that on the 3d day of April, 1916, the said J. H. Lewis, being at the time in charge of said business and behind its counter, sold and delivered to Will George a bottle of whisky, for which the said George paid 75 cents; that the said Lewis got the said whisky which was sold to George from under the showcase in said place of business of the defendant; and that at the time said sale of whisky was made the defendant was not in his place of business. .

On the cross-examination of the witness George by the defendant, it was developed that he (George) had at several different times, other than the time charged in the information, purchased whisky in the said business house of the defendant, arid thereafter the defendant moved the court to exclude said evidence of said other purchases, which the court refused to do, and the defendant excepted.

As the information avers every element of the offense, and only charges one offense and sufficiently informs the defendant of the offense he was called upon to answer, the court did not err in overruling the demurrer to the information. Ferguson v. State, 10 Okla. Cr. 672, 137 Pac. 1195; Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.

The defendant earnestly insists that the trial court committed reversible error in not excluding the evidence of other sales of intoxicating liquors in the place of business of the defendant near the time of the sale alleged in the information. It is the opinion of the court that the trial court- did not err in refusing to exclude this evidence, for the following reasons: First, Because the evidence was elicited upon cross-examination by counsel for the defendant, and he cannot be heard to complain in this court, even if the admission of said evidence was erroneous, because the error, if. any, was invited by him. Second, The evidence was competent in this case for the purpose of showing that part of the business conducted by this defendant, in connection with his alleged cigar store, was the sale of whisky, and it was competent to show that the sale of whisky had been repeatedly made in such place of business near and preceding the time of the particular sale charged in this ease, for the purpose of showing that the defendant had knowledge of such sales, and that the intoxicating liquor was kept intermingled with the other goods in defendant’s place of business, thereby tending to establish the conclusion that the particular sale made was a part of the business of the defendant conducted at said place and consummated -with his knowledge and consent, and especially is the legality of this evidence impressive when it is remembered that the defendant did not make any real defense, did not testify in the case.

In the instant case, Lewis was the servant of the defendant, and, under the facts disclosed by the evidence, a sale by Lewis in the place of business of the defendant wras in contemplation of law a sale by the defendant, and for:’which he was criminally liable, notwithstanding .he was not present when the sale was made.

In Cook v. State, 4 Okla. Cr. 519, 111 Pac. 660, it is said.:

! “It: is immaterial as to whether the defendant was ¿resent when the beer was sold or not. 'He owned the premises and controlled the business. The' negro was simply his servant, and a-sale by the negro was a sale by the .defendant, and the defendant is responsible for any. violation. of the prohibitory liquor law committed by his negro porter.”

.-• It is also urged by the defendant that as it was not shown that a conspiracy existed between the defendant and Lewis, and it being shown that- the defendant was not in his said place of business when the sale charged in the information was made, the court committed reversible error in refusing to direct a verdict for the defendant. iWith this contention we cannot agree. It was not neces-sáry to a legal conviction -that a conspiracy be shown to exist by and between Lewis and the defendant. The illegal sale by Lewis, in the place of business of the defendant while he was employed as clerk of the defendant, and evidence of other sales in defendant’s place of business elicited by the defendant on cross-examination. of the state’s witness, together with the fact that the defendant did not present any real-defense to the prosecution against him, did not testify, and did not call his codefendant, who ■had pleaded guilty, as a witness, was sufficient evidence upon which the jury could rightfully conclude that the sale by - Lewis was done with the knowledge of the defendant, aqd in the line of his duties as a clerk of the defendant, and, to warrant the verdict returned in this case, and the court did not err in refusing to instruct the jury to acquit the defendant.

“When there is proof in the record tending to reasonably sustain the allegations in the. information, a trial court has no right to advise the jury to return a verdict of not guilty, and especially is this true when there has been no testimony offered • on the part of the accused.” State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N. S.) 1013.

The court did not err in overruling the motion for a new trial, and the motion in arrest of judgment.

The judgment of the trial court is sustained.

DOYLE, P. J., and MATSON, J., concur.