text:
    J. H. ANDERSON v. STATE.
    No. A-3694.
    Opinion Filed Feb. 6, 1922.
    Rehearing Denied April 17, 1922.
    (207 Pac. 977.)
    (Syllabus.)
    1. Appeal and Error — Information—Sufficiency Where First Objected to on Introduction of Evidence or oni Appeal. — Where defendant goes to trial, and for first time objects to the information when state attempts to introduce testimony thereunder, or upon appeal, the objection-should be overruled, if by any intendment or presumption the information can be sustained.
    2. Banks and Banking- — Information Charging Cashier with Making False Report to State Officials. — Sufficiency.—Por information held sufficient to charge an offense under section 269, Rev. Laws 1910, and reasons therefor, see statement of the case and body of the opinion.
    3. Same;: — Evidence Suplplortiing Convicti|on&wkey;Evidenc|e examined and held sufficient to support the verdict and judgment.

      4. Same — Instruction Following Statute. — Instruction, defining offense which substantially follows the language of the statute, is held not to be erroneous.
    5. Appeal and Error — Discretion of Lower Court — Refusal of Continuance. — Applications for a continuance are addressed to the discretion of the trial court. The trial court’s action, on such an application will not be disturbed, unless a manifest abuse of discretion appears.
    6. Continuance — Grounds—Absence of Counsel. — Absence of counsel is not made one of the statutory grounds for a continuance. If, however, the trial court’s action in overruling an application based on this ground resulted in depriving defendant of the benefit of counsel, or even if it appeared from the record that defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance.
    7. Same — Refusal of Furtheir Continuance not Abuse of Discretion. Where defendant has employed two counsel, one of whom is present in court and asks a continuance in order that the absent counsel may have an opportunity to present a "technical defense,” without stating in the application what such defense is, and the trial court continues said cause until the following day in order to give defendant an opportunity to make further arrangements for trial, we find no abuse of discretion in overruling a further motion for continuance presented on the second day, still based on the absence of leading counsel.
    Appeal from District Court, Custer County; Thomas A. Edwards, Judge.
    J. H. Anderson was convicted of the crime of willfully and knowingly making a false report, with intent to deceive, as to the condition of the bank of which he was cashier, and appeals.
    Affirmed.
    See, also, 21 Okla. Cr. 177, 204 Pac. 132.
    On the 18th day of October, 1919, an information was filed in the district court of Custer county, Okla., charging the defendant, J. H. Anderson, with the crime of willfully, knowingly andl feloniously subscribing to and making a false written report of tbe affairs, financial condition, and property of tbe Farmers’ State Bank of Weatherford, Okla., with intent to deceive tbe State Bank Commissioner, tbe State Banking' Board, and other persons to tbe informant unknown. Tbe information alleges, in substance, that said defendant, being; cashier of tbe Farmers’ State Bank of Weatherford, Okla., prepared and signed a written report showing tbe financial condition of said' bank as of tbe close of business of tbe 12th day of May, 1919; that said report discloses that tbe loans and discounts of said bank owned by it on said date amounted to a sum equal to tbe value of $107,258.74, and that certain warrants owned and held by it were of the value of $37,352.59: that said defendant then and there knew that said report was. false and untrue, in that the. loans and discounts of said bank, on said date amounted to only tbe sum of $83,336.57, andi tbe amount of warrants amounted only to $28,824.89; that the difference in tbe amount of loans and discounts and the amount of warrants, as shown by said report and as actually existing, was due to the fact that among the loans and discounts and warrants included in said report were certain notes and warrants that were forged and counterfeit instruments, which, said fact was then and there well known to the defendant. A list and copy of said notes and warrants are set out in the information. The information charges that said report was by the defendant made with the willful and felonious intent to deceive the Bank Commissioner and the Banking Board of the state of Oklahoma, and other persons to the informant unknown, as to the true financial condition and property of said bank, as of said 12th day of May, 1919.
    No demurrer was filed by the defendant to this information, but, upon arraignment to same, the defendant entered his plea of “not guilty,” and upon the issues so joined and on the 4th day of November, 1919, said cause was called for trial in the district court of Custer county, Okla. On said date the defendant filed an application for a continuance, and the court made an order continuing the case to November 5, 1919, at which time the defendant filed an additional application for a continuance, which application was overruled, and the case proceeded to trial, resulting in a verdict of conviction and the imposition of a punishment of imprisonment in the state penitentiary for a period of three years.
    The evidence in this case shows that the defendant, J. H. Anderson, on the 12th day of May, 1919, and for several years prior thereto, was cashier of the Farmers’ State Bank of Weatherford, Okla., and was during all of said time the active managing officer of said bank. That Roy A. Cooper, an Assistant Bank Commissioner of the State of Oklahoma, in the month of July, 1919, made an examination of said bank, and from said examination found there were included! in the bills receivable of said bank certain notes aggregating the face value of $23,922.17, which were forged and counterfeit instruments; that among the warrants held by said bank were five warrants of the face value of $8,527.70, which were forged. and counterfeit instruments. That at the time of the exam-iation of said bank there were present the defendant, J. H. Anderson, Walter Anderson, brother to the defendant, A. A. Gray, and Wm. A. Umbach, and J. S. Wilks.
    The witness Cooper testified:
    “Q. Now, I will ask you, Mr. Cooper, whether as an Assistant Bank Commissioner of the State of Oklahoma you made an examination of the Farmers’ State Bank of Weather-ford, Okla., and, if so, when? A. I examined them in July, 1919.
    “Q. That was at Weatherford, in Custer county, in this state? A. Yes, sir.

      ‘ ‘ Q. Who was acting as cashier of the bank on that date f A. J. H. Anderson.
    “Q. Was he present on that date? A. He was.
    “Q. When yon made that examination? A. Yes, sir.
    “Q. Were any of the other officers or directors present? A. The assistant cashier, Mr. Gray, and a brother of Mr. Anderson — I don’t remember his given name — were present; later in the evening Mr. Umbach and Mr. Wilks were present.
    “Q. Now, just detail to the jury what you did when you went into the Farmers’ State Bank at Weatherford at the time of this examination. A. The first thing I did was to verify the cash, as shown by the books; then I listed the discounts, that’s the notes, and took what is known as a transcript of the bank; verified the time certificates and the cashier’s checks outstanding; inquired as to the notes as shown, and' was told by Mr. Anderson that a number of them were forged. Do you want me to—
    “By Mr. Mitchell: Now, that is objected to as not responsive to the question — that latter part, with reference to the forgery of the notes.
    “By the Court: Do you move to strike it out?
    “By Mr. Mitchell: Yes.
    “By the Court: It will be stricken at this time.
    “By Mr. Zwiek: Exception — yes, sir.
    “Q. In making this examination as to the notes and warrants in the bank did you find any of them to have been forged? A. I did.
    “Q. I wish you would detail to the court and jury how you ascertain that fact.
    “By Mr. Mitchell: Now, this testimony is objected to for the reason that the same is without the issues in this case.
    “The Court: Overruled.

      “Counsel for the Defendant: Save an exception.
    “A. My suspicions were directed, first, to a note which had been raised from some $700 to $1,700 and another from some $400 to $1,400. I asked Mr. Anderson which amount he was carrying, and he said he was carrying the latter amount. I took — I asked where these parties were. He said one lived near Custer, and another lived near Arapaho and — or near Thomas, and I told him to secure an automobile; that I intended to go and inquire of these parties if that note, or those notes, were the ones that they had executed. About that time a clerk of a school district — I don’t just recall,the school district now, came in with reference to some warrants which had been discounted by the Farmers’ State Bank, in Oklahoma City. I was sitting at the desk, right back of the work room; Mr. Anderson was standing leaning on the desk to my right. I took — I made a certified copy of these two warrants, and told the clerk if I wanted him further I would call him. He left. Mr. Anderson — I was then what we call listing the big lines; in other words, going through the notes to see who is borrowing large amounts, and then to ascertain if in our judgment the loan is too great for the security. I was listing these, and Mr. Anderson was standing to my right. I looked at him and says, ‘What have you got to say now?’ He says, ‘They’re phony.’ I says, ‘What else is phony?’ He says, ‘Oh, there’s $2,000 or $3,000 in here.’ I says, ‘Where?5 He says, ‘In the note case.’ I says,‘Can you pick them out?’ He says, ‘Yes,’ and he smiled. He reached around to the left of me, reached into the note case, and he took them out and dealt them out like he was playing cards. I was making a list of them as he was calling them to me, and he put them out faster than I could write. I then asked him if that was all. He said no, there was some warrants that were forged, and he gave me those warrants. I asked him if that was all'. He saicf no, there was some at Kansas City, and he went in and he got his discount sheet and gave me the amounts of the warrants that he had sold in Kansas City; I asked him then if he would make that in writing. He said yes. I went to the front of the bank, asked him for some paper. He offered me letter heads. I told him it was too small, and asked him if he had some legal paper. He said no. I then left and went ont and purchased some legal paper, returned and wrote his statement and handed it to him and asked him: ‘Mr. Anderson, is that correct? Is that the facts of it?’ He said! it was. I asked him to sign it if he would. He says, ‘All right.’ He signed it, and I swore him to it.”
    The state introduced in evidence this sworn statement. This exhibit shows that as early as 1915 down to the date of the examination of the bank in July, 1919, the defendant in this case forged a great number of notes and warrants, and that on the day of the examination of the bank there were in said bank the forged notes and warrants set out in the information in this case; that the correct amount of said forged notes and warrants was $32,449.87.
    The witness, William Umbaeh, testified that he was president of the Farmers’ State Bank of Weatherford and that J. H. Anderson was its cashier; that he was well acquainted with the signature of the said J. H. Anderson, and that the signature to the written confession of the defendant as to the forgery of the notes and warrants in the bank was the signature of the defendant herein; that he was present in the bank at the time Mr. Cooper, the Bank Examiner, was conducting his examination of the bank, and that he, the witness, after looking through about half the notes in the bank, asked Mr. Anderson, the cashier, “You say all of this bunch has1 been forged — these are all forgeries, you forged them all?” He says, “Yes, sir.” I asked him then, “What did you do with the money?” He says, “That’s pretty hard to explain.”
    J. S. Wilks testified that he was a director of the bank, and that the defendant had had the active management and supervision of the bank for some three or four years; that during the examination of said notes by Mr. Cooper, in the presence of Mr. Umbaeh and the witness, the defendant stated that said notes were forged; that the defendant was asked what he had done with the money obtained by said forged instruments, and that he replied, “Well, it is jhard to tell.”
    The state then called as witnesses C. J. Welland, Jonathan Jones, W. Peppard, P. M. Peek, A. D. Nikkei, J. J. Y oder, Frank Long, and Joseph J. Miller, whose names were purported to have been signed by this defendant to certain notes described in this information, and each of said witnesses testified that they did not sign the names, nor did they authorize any one else to sign their names for them; nor did they have any business transactions with said bank whereby an obligation was created in the bank’s behalf as evidenced by the notes, or otherwise.
    The witness M. L. Wood testified that in 1918 and 1919 he was city clerk of the city of Weatherford, Okla., and, being presented with the warrants set out in the information, was asked whether the name “M. L. Wood” on the warrants was signed by him, or whether he ever authorized the signing of his name thereto, and the witness testified said warrants did not contain his signature, and that the said M. L. Wood thereon was neither signed by him nor did he authorize any one to sign his (name thereto. The exhibits of warrants show that the name of J. H. Anderson as mayor of the city of Weather-ford was signed to each of said false warrants.
    At the conclusion of the introduction of this testimony the defendant interposed a demurrer to the state’s evidence, which demurrer was by the court overruled, and exceptions allowed. There was no testimony introduced by the defendant. A motion for a new trial was thereupon filed, considered by the court, and overruled.
    The petition in error in this case recites:
    (1) The court erred in overruling plaintiff in error’s motion for a new trial.

      (2) The court erred in. overruling plaintifi an error’s supplemental motion for new trial.
    (3)' The court erred in refusing a continuance and forcing defendant to trial in the absence of his attorney, A. J. Welch; said attorney being unable to attend court on account of his own illness.
    (4) There was a total failure of evidence to support the material allegations of the information.
    (5) The court, erred in giving instructions Nos. 3, 4, 5, and 6.
    (6) • The court erred in overruling defendant’s demurrer to the state’s evidence and his motion to be discharged at the close of the case.
    A. J. Welch, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Wm. H. Zwick, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Defendant moved for a new trial on the ground, among others, that the court erred in overruling objection of the defendant to the introduction of any evidence by the state. Such objection was based upon the allegation that the information did not contain facts sufficient to charge the defendant with any crime. While it is urged in the brief of counsel representing the defendant that the information is insufficient, the petition in error does not contain an assignment to that effect.

This court has repeatedly held that where a defendant goes to trial and for the first time objects to the information when the state attempts to introduce testimony thereunder, or upon appeal, the objection should be overruled if by any intendment or presumption the information can be sustained. White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214; Ex parte Jim Spencer, 7 Okla. Cr. 113, 122 Pac. 557; McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358; Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80.

The information in this case charges the defendant with the crime of making a false report as to the financial condition of the Farmers’ State Bank of Weatherford, as of ihe close of business of May 12, 1919. The statute on which this information is based reads as follows:

"Every officer, director, agent or clerk of any bank doing business under the laws of the State of Oklahoma who shall willfully and knowingly subscribe to or make any false report or any false statement or entries in the books of such bank, or knowingly subscribe to' or exhibit any false writing or paper, with the intent to deceive any person as to the condition of such bank, shall be deemed guilty of a felony, and shall be punished by a fine not to exceed one thousand dollars, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.” Section 269, Rev. Laws 1910.

The foregoing statement of the case includes a substantial outline of the material allegations of the information. In the case of State v. O’Neil, 24 Idaho, 582, 135 Pac. 60, the Supreme Court of. Idaho held an information substantially like the one in this case to be sufficient as against a demurrer. Such information was based upon section 7128, Rev. Codes of Idaho, the provisions of which are very similar to the statute, above quoted, upon which this information is founded.

It is the opinion of this court that the information in this ease is not only sufficient to withstand an objection to the introduction of testimony thereunder, but is good as against a demurrer should one have been lodged upon the ground of insufficient facts.

It is next contended that the evidence on behalf of the state fails to support the material allegations of the information or to prove tbe commission of any public offense. With this contention the court is unable to agree. No defense whatever was interposed. Reliance was placed entirely upon the failure of the state to prove its case. The evidence clearly establishes the. fact that during the month of July, 1919, and for some four years prior thereto J. H. Anderson, the defendant, was the cashier and active managing officer of the Farmers’ State Bank of Weatherford, Okla.; that William Um-bach, the president of the bank, was a farmer living in the country some distance from the town of Weatherford; that he had no banking experience, was not actively connected with the running of the bank, and was seldom in the bank, except for the purpose of examining its notes and other papers as a director; that J. S. Wilks, also one of the bank’s directors, was a farmer, with no banking experience, and had nothing to do with the active management of the bank; that the defendant had active charge of the bank with one or two' subordinate employes working under him. In July, 1919, defendant admitted and confessed to the Bank Examiner that in the year 1915 he commenced to execute notes payable to the bank, purporting to be signed by farmers living in that neighborhood, that these notes would be placed in the bank’s note case, and defendant admitted that it was "hard to explain” what he had done with the funds covered by these various forged notes. This system of misappropriating the bank’s funds was not discovered until the month of July, 1919, when the Bank Examiner was making an examination of the notes found in the bank’s note case. Defendant was present when this examination was being -made, and the Bank Examiner became suspicious of two notes, one of which had apparently been raised from $700 to $1,700, and another from $400 to $1,400, and when the Examiner asked the defendant which of these amounts he was carrying on the notes defendant informed him that he was carrying the larger amount on each note. The Bank Examiner then asked the defendant where the makers of the notes lived, and, upon being told, informed the defendant that he (the Bank Examiner) intended to interview the purported makers of the notes. It was then that the defendant admitted that these and other notes which the bank was then carrying, also certain municipal warrants, were all forgeries.

These notes and warrants were being carried as part of the assets of the bank in July, 1919, and the purported date of execution of most of the notes antedated the 12th day of May, 1919, while the due date was subsequent to the 12th day of May, 1919. The dates of the issuance of the purported warrants of the city of Weatherford were also anterior to the 12th day of May, 1919. These notes were not obtained by the Farmers’ State Bank of Weatherford by a rediscount, but said bank was the payee named in each of said notes. The only reasonable deduction from said evidence, as we see it, is that said notes had been carried as part of the assets of said bank from the purported date of their execution, and were considered by the defendant and included by him in the report of the resources of said bank to the Bank Commissioner on the 12th day of May, 1919, under the item in said report, “loans and discounts on which stockholders are liable, .$107,258.74.’” Further, it is a reasonable conclusion from the evidence that the defendant included within said report between $8,000 and $9,000 of fictitious municipal warrants of the city of Weather-ford, which were found among the purported assets of the bank at the time of its examination in July, 1919. In regard to the warrants held by the bank, the report of the 12th ox May, 1919, by this defendant, under the item of resources,, includes as “securities with the banking board” the sum of $1,449.26. As to this particular item, at the time the examination of the bank was made in July, 1919, the defendant confessed that the warrants deposited with the banking board as security in the sum of $1,449 were forgeries. As to this particular item the evidence is uncontradictory that it was included in the report, and the evidence is conclusive that as to that particular item the report was false. As to the evidence as to the notes being included within the report, it is circumstantial, but, in our opinion, the circumstances are such as to lead to no other conclusion than that the defendant considered and included the false and forged notes as part of the resources of the bank in making the report on the 12th day of May, 1919, as charged in the information. "We deem the evidence amply sufficient to sustain the verdict and judgment.

Further, it is contended that the court erred in giving certain instructions. This assignment of error is not supported by the citation of any authority. The particular instruction complained of is not copied in the brief. The petition in error complains of the instructions Nos. 3, 4, 5, and 6. From the argument advanced we surmise that instruction No. 4 is the one contended to be prejudicial. This instruction reads as follows:

"You are instructed that every officer, director, agent or clerk of any bank doing business under the laws of the state of Oklahoma, who shall willfully, and knowingly subscribe to or make any false report, with the intent to deceive any person as to the condition of such bank, shall be deemed guilty of a felony’ and shall be punished by a fine not to exceed one thousand dollars or by imprisonment in the penitentiary not to exceed five years, or by both such fine and imprisonment. ’ ’

Said instruction appears to be a fair exposition of the statute upon which this prosecution was based. We fail to discover any reason why the giving of this instruction was prejudicial to the defendant, and counsel has failed to impress this court with any sound reason for holding the same erroneous.

Lastly, it is contended that the trial court erred in overruling defendant’s application for a continuance. This application was based on the ground of the absence of one of the counsel for defendant, the motion containing an allegation that said counsel was ill and unable to participate in the trial. Defendant, prior to making the application, had employed two attorneys to represent him: Mr. A. J. Welch, of Clinton, Okla., and Mr. T. W. Jones, Jr., of Weatherford,-' ■Okla. The application was presented to the trial court by the latter attorney. The allegations in the motion for a continuance were substantially as follows:

That Mr. T. W. Jones, Jr., had been employed by the defendant in an advisory capacity in the trial of the case. That he is physically unable to hear the answers of witnesses and .jurors to questions asked, and unable to hear the questions .and rulings of the court thereon. That A. J. Welch, of ■Clinton, Okla., was employed to try the case and has the entire charge of the preparation of said ease for trial. That the said Welch was present in court on the day preceding the making of the affidavit and expected to be present when the case was called for trial, but was taken sick and confined to his bed on the evening preceding and is now sick and confined to his residence in Clinton, Okla., and has in attendance upon him Dr. A. J. Jeter of Clinton, Okla., whose certificate under oath as to the sickness of the said A.- J. Welch is attached and made a part of the motion. That defendant, by reason of the sudden sickness of the said Welch, has been unable to employ other counsel and to give them sufficient time to make preparation for the trial. That said case is1 founded upon a number of instruments which will require ■careful examination and discussion in order to prepare for ■said trial. That the said Welch has prepared a defense in the ease which is technical and requires study on the part of ■ counsel trying the case and a detailed examination of the' witnesses offered. That said Jones is not familiar with said defense and is unable to present the same, even though he could hear the testimony. That the motion is not made for the purpose of delay, but in order that substantial justice may be done.

The motion was subscribed and sworn to by T. W. Jones, Jr., and attached to it was the following:

“Dr. A. J. Jeter, Clinton, Okla. This is to certify that Mr. A. J. Welch is sick with a light case of influenza and it is unsafe for him to leave the house or to be in public on account of infection. Resp. A. J. Jeter, M. D.
“Subscribed and sworn to before me this 4th day of November, 1919. V. F. Carleton, Notary Public.
“(Seal) My commission expires November 29, 1922.”

When the motion came on for hearing the following proceedings were had:

“By the Court (after examination of the foregoing motion for continuance): Is there anything you want to say about this, Mr. Jones?
“By Mr. Jones: Nothing, only, as your honor knows, I can't try the ease. Mr. Welch is. sick and the doctor is in attendance upon him and the matter having come up at this late date Mr. Anderson couldn’t get other counsel to present the matter at this time, and your honor please, Mr. Welch has had the entire charge of the case as far as the court proceedings are concerned and has prepared the case and if your honor has seen the information, there are a great number of instruments involved in this matter — it is a matter that counsel will have to study carefully in order to prepare the defense and it is a serious matter to the defendant and I think, your honor, please, he ought to be given—
“By the Court: The court has read the application and considered it, and in view of all the circumstances I think I will allow a postponement until tomorrow morning at nine o’clock, during1 which time the defendant may make such arrangements as be sees fit — the case will go to trial tomorrow morning at ten o’clock.
“By Mr. Jones: Will the conrt note onr exceptions to the ruling on the motion?”

On the following day when the ease was again called for "trial the following proceedings were had:

“By the Court: The first case on the call this morning is the case of the State of Oklahoma v. J. H. Anderson—What ■says the state?
“By the County Attorney: The state is ready.
“By the Court: What says the defendant?
“By Counsel for Defendant (E. L. Mitchell) : I want to ■say that I am appearing in this case this morning for Mr. Welch, on motion — its a motion for continuance.
“By the Court: Let’s see your motion, Mr. Mitchell.”

Whereupon Mr. Mitchell presents to the court an application for continuance filed in this court on this date, which .application, with all indorsements thereon, is as follows :

“State of Oklahoma v. J. H. Anderson. Application for ’Continuance.
“Comes now the defendant and makes this additional application for continuance of this cause and says:
“ (1) That he has a just and legal defense to the charge made against him in the information; that owing to the present illness of his attorney, A. J. Welch, he cannot safely go to trial of this cause at this time; that he employed said Welch to represent him in this ease some two months ago, apd that he ■employed no other attorney in the case except T. W. Jones, who was employed only in an advisory capacity; that said Jones is so nearly deaf that it is impossible for him to participate in this or any other trial, and he never attempts to conduct the trial of a case, and for this reason said Jones has made no preparation or study of the case for trial, and is wholly unable to appear as attorney in the case.
“That said A. J. Welch is confined to his bed at home ill, unable to attend court, and a doctor’s certificate has been presented and filed with the application filed herein yesterday; that said Welch had prepared the defense herein, and was ready and able, and but for his recent and present illness would have appeared in this trial and conducted the defense herein, but is wholly unable to so act by reason thereof.
“That, owing to the nature and character of the case, the information containing some 40 typewritten pages, defendant is not able, and it is impossible, to employ other counsel to take charge of his case and present his defense on so short a time, and become familiar with the ease so that the same may be legally and properly conducted and his rights therein protected. Defendant says that the charges made in the complaint are untrue. Defendant says that this is the first term at which this case was called; the preliminary having been only about 15 days ago.
“Said Welch did not take sick until the day before the case was set for trial, and defendant talked with him that day, when he still hoped to be able to take charge and try the case, but went to bed under the doctor’s care the evening before, and now is too ill to attend court.
“This application is not made for delay, but that he may have justice in a fair and impartial trial. Wherefore defendant moves that this cause be continued for the term.
“J. H. Anderson.
“Subscribed and sworn to this 4th day of Nov.
“R... B. Strong, Court Clerk.”
“State of Oklahoma, Custer County.
“Comes now E. L. Mitchell and makes oath in due form of law, in addition to the foregoing application for continuance, and says: That he was only consulted in this case the first time the evening of November 4th, and that he was then requested by A. J. Welch to appear in court and present this application for a continuance and do whatever he was able to do on behalf of the defendant; that owing to the nature of the ease he has not even been able to or had the time to read the information or to discuss the defense of the case with the defendant, and but very briefly with the said Welch.
“That he has no information whatever as to the defense in this case, and has not been able to talk with any of the witnesses or to read any of the pleadings or consult with any person in reference thereto, except the said Welch, and was unable, on account of the illness of the said Welch, to obtain any information from him with reference to the facts or the preparation of the case. E. L. Mitchell.
“Subscribed: and sworn to this 4th day of Nov., 1919.
“R. B. Strong,' Court Clerk.”

When the supplemental motion for a continuance was presented the state asked leave to make a counter showing, which was granted, and the county attorney thereupon interposed a showing to the effect that Mr. A. J. Welch, one of the attorneys for the defendant, upon whose alleged illness application for a continuance had been presented the day previous, was present at his office on that day, and had transacted business at his office by dictating a letter to his stenographer, and further, on said day had discussed certain business matters with a justice of the peace in the city of Clinton, and in addition thereto the state was permitted and did introduce Mr. R. P. Phillips, a practicing attorney at Arapaho, Okla., who testified, in substance: That on the morning the supplemental motion for a continuance had been presented, and just a short time prior thereto, Mr. A. J. Welch had called him by phone with reference to certain civil cases in which they were both interested, on opposite sides, to find out if the side represented by Mr. Phillips would be ready for trial, and in the conversation Mr. Welch stated that he would agree to a continuance of the cause, that he had some cold, a slight attack of flu, .or something like that.

It has been repeatedly held by this eourt, and requires the citation of no authority, that applications for a continuance are addressed to the discretion of the trial court, and that the trial court’s action, on such an application will not be disturbed unless a manifest abuse of discretion appears. Absence of counsel is not made one of the statutory grounds for a continuance. Section 5045, Rev. Laws 1910.

■ If, however, the trial court’s action in overruling an application on this ground resulted in depriving the defendant of the benefit of counsel, or even if it appeared from the record that the defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance.

In this ease, however, it appears that defendant had employed two counsel, one of whom was present in court and presented the application. In the application presented by him he asks that a continuance be granted in order that the other counsel may present a technical defense. What this defense is is not stated, and in view of the confession made by the defendant in this case the court is at a loss to surmise that defendant had a defense other than that which was afterwards presented to the jury and urged in this court, to wit, the failure of the state to make out its case.

While this court has always regarded favorably the right of a defendant to be heard and present a substantial defense to any criminal charge lodged against him, we have never been impressed with the necessity of delaying a criminal prosecution merely for the purpose of affording an opportunity to present only technicalities not directed to the substantial merits of the prosecution.

The record in this case shows conclusively that the defendant was the only person who had any knowledge of the falsity of the state’s case, if it were false, and he certainly had time to explain his apparent criminal conduct as made out by the state’s case, if such an explanation could have been made consistent with his innocence. This he did not do, nor does he pretend in any of the motions presented, nor, if a new trial should be granted him, that either he or any other witness will be able to make an explanation of his conduct which would in any degree raise a reasonable doubt of his guilt.

It appears conclusively from the foregoing excerpts of the record that the trial court granted a continuance for one day in order to permit him to make arrangements for other counsel if he desired to do so, and it further appears that thereafter he was represented by another very able counsel who conducted his trial, cross-examined the state’s witnesses, and saved numerous exceptions to the court’s rulings throughout the trial.

In Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, it is held:

“An application for a continuance, for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsel. ’ ’

In the body of the opinion it is said:

“To reverse the ease on the ground here set up with reference to the absence of counsel would be to place it within the power of counsel to control the running of the courts and the disposition of cases.”

See, also: Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307; Snyder Co-op. Ass’n v. Brown et al., 70 Okla. 13, 172 Pac. 789.

We think it evident that there was no manifest abuse of discretion in overruling the motion and application for a continuance in this case. Further, there is no reason to believe that upon a second trial an intelligent and honest jury would arrive at any other verdict than that of the guilt of the accused. It appearing from the motion for a continuance that the application was made solely for the purpose of permitting the defendant to present a defense entirely technical in its nature, we think it would be a travesty on justice to set aside an apparently righteous judgment for such a reason. The willful and unlawful spoliation of the funds of a bank by its officers is more dangerous to the depositor and to the public generally (in that it destroys confidence in the entire banking system, both federal and state, and strikes a blow at the very foundations upon which the business of the country is based) than is the action of a highwayman who takes the funds of the bank at the point of a gun. The law should be enforced against one in the same measure and with the same certainty that it is enforced against the other.

The judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    STATE v. JESSE FRANKS.
    No. A-3876.
    Opinion Filed April 22, 1922.
    (206 Pac. 258.)
    (Syllabus.)
    Escape — Information Charging Defendant with Harboring Felons Seeking to Escape — Sufficiency. Por information held sufficient to charge the felony defined by section 2204, Key.'Laws 1910, see body of opinion.
    Appeal from District Court, Haskell County; E. F. Lester, Judge.
    Jesse Franks was charged with the crime of harboring fugitives from justice, and, from judgment sustaining demurrer to the information, the State appeals.
    Reversed and remanded, with instructions.
    This is an appeal by the state from a judgment of the district court of Haskell county sustaining a demurrer to the information.
    On the 20th day of September, 1920, the county attorney of Haskell county, Okla., filed an information in the district court against the above-named defendant in error (who will be hereinafter referred to as the defendant), which information, omitting caption and formal parts, was as follows, to-wit:
    “Now comes Duke Frederick, the duly qualified and acting county attorney in and for Haskell county, state of Oklahoma, and gives the district court of Haskell county and state of Oklahoma to know and be informed that Jesse Franks did in Haskell county, state of Oklahoma, on or about the 13th day of June, in the year of our Lord one thousand nine hundred and twenty, and anterior to the presentment hereof, commit the crime of harboring criminals and fugitives from justice, in the manner and form as follows, to wit:
    “That on the 30th day of May, in the year of our Lord one thousand nine hundred and twenty, one Cole Shumake and one Walter Childers at and within Haskell county, Okla., did then and there unlawfully, willfully, wrongfully, violently and feloniously, and acting conjointly, and by the use of force and by putting in fear one Norris Cooper, without the consent and against the will of the said Norris Cooper, seize and take from the immediate possession of the said Norris Cooper, and from his person, $33, good and lawful money of the United States of America, the personal property of the said Norris Cooper, with the unlawful, willful and felonious intent then and there on the part of the said Cole Shumake and Walter Childers to take, steal and carry away said money and to deprive the owner thereof, and the said Cole Shumake and Walter Childers being then and there guilty of the crime of robbery as aforesaid and being then and there fugitives from justice seeking to avoid arrest for the crime by them committed as aforesaid and having theretofore escaped from the county jail of Le Flore county, Okla., at Poteau, Okla., and being then and there outlaws, and that thereafterwards, to wit, on or about the said 13th day of June, in the year of our Lord one thousand nine hundred and twenty, the said Jesse Franks in said county and state then and there being, then and there well knowing the said Cole Shumake and Walter Childers had committed said crime of robbery as aforesaid and well knowing that they were fugitives from justice seeking to avoid arrest for said crime by them committed and well knowing that they had escaped from jail at Poteau, Oklahoma, and were outlaws, did then and there unlawfully, willfully, wrongfully, knowingly and feloniously feed, lodge, equip, harbor, aid and conceal the said Cole Shumake and the said Walter Childers in his home, that is to say, did then and there knowingly, voluntarily, willfully, wrongfully and fel-oniously admit and take the said Cole Shumake and Walter Childers into his home and give and furnish to them food and lodging and did then and there give and furnish to said Cole Shumake and Walter Childers a certain 38-caliber Winchester rifle and did then and there stealthily and surreptitiously admit them into his home and conceal them therein, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
    On the 11th day of October, 1920, the defendant filed in open court a demurrer to said information upon the following grounds, to wit:
    * * (1) Because said information does not substantially conform to the Code of Criminal Procedure of the State of Oklahoma.
    “(2) That the information herein does not state facts sufficient to constitute a public offense.
    “(3) That said information attempts to charge more than one offense in the same count.
    ‘ ‘ (4) That said information is so indefinite and uncertain that the defendant is unable to ascertain whether he is charged with a felony or misdemeanor.”

      Said demurrer coming on to- be beard on the 11th day of October, 1920, the court rendered a judgment sustaining said demurrer. Said judgment, omitting caption, is in the following words and figures, to wit:
    “Now, on this 11th day of October, 1920, the same being one of the judicial days of the special October, 1920, term of the district court in and for Haskell county, Okla., the defendant being present in open court in person and by his attorney, Fred H. Fannin, and the state being represented by Duke Frederick, the duly qualified and acting county attorney in and for said Haskell county, the defendant files in open court his demurrer to the information heretofore filed herein by the county attorney,'and the court, after hearing said demurrer and the arguments of counsel thereon, and being well and sufficiently advised in the premises, doth sustain said demurrer, to which action of the court in sustaining defendant’s demurrer the county attorney excepts. The court directs the county attorney to file a new information herein, and the county attorney, reserving his exception,' elects to stand on the information as filed and appeals from the order of the court in sustaining defendant’s demurrer.”
    Thereafterwards, to wit, on the 8th day of November, 1920, plaintiff in error filed in this court a petition in error with transcript of the record thereto attached, and on the 29th day of November, 1920, filed herein a waiver of issuance and service of summons in error signed by the attorney of record for defendant in error, all within the time allowed by law.
    Duke Frederick, Co. Atty., for the State.
    Fred H. Fannin, for defendant in error.
   MATSON, J.

(after stating the facts as above). Error is assigned as follows:

The court erred in sustaining the demurrer to the information and in rendering judgment thereon in favor of the defendant.

The state contends that the information herein is sufficient to charge the crime of harboring criminals as defined by our Criminal Code, and that it (1) substantially conforms to the Code of Criminal Procedure of the State of Oklahoma; (2) that it states facts sufficient to constitute a public offense; (3) that it does not attempt to charge more than one offense in the same count; and (4) that it is neither so indefinite nor uncertain that the defendant is unable to ascertain whether he is charged with a felony or a .misdemeanor.

Defendant urges that said information attempts to charge more than one offense in) the same count and is so indefinite and uncertain that the defendant is unable to- ascertain whether he is charged with a felony or misdemeanor.

The information is based on section 2204, Revised Laws Oklahoma 1910, which is as follows:

“2204. Harboring Criminals and Fugitives — Penalty. Any person who shall knowingly feed, lodge, clothe, arm, equip in whole or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony,, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other slate or territory, shall be punished by imprisonment at hard labor in the penitentiary for a period of not exceeding ten years.”

The principal objection to the foregoing information is that of duplicity. From a reading of the brief filed in behalf of the defendant in error we glean that' the trial court sustained the demurrer to the information because the said information charged both the felony defined by section 2204, supra, and the misdemeanor as defined by section 2203, Revised Laws 1910.

The latter section reads as follows:

“Any person who willfully and knowingly conceals any prisoner, who having been confined in prison upon a charge or conviction of misdemeanor, has escaped therefrom, is guilty of a misdemeanor.”
“Mere surplusage will not vitiate an indictment wbieb contains sufficient matter to charge a crime. An unnecessary averment may be considered surplusage and rejected, as may a defective but immaterial averment, and a fact stated may be rejected as surplusage if it be merely in aggravation, so that it may be stricken out and yet leave the offense fully described. An indictment for a misdemeanor is good which alleges the facts which constitute the misdemeanor, notwithstanding it also alleges some but not all of the facts which would show that the criminal act was a felony, and duplicity which amounts only to surplusage is not fatal. ” 14 R. C. L. p. 191, § 37.

In order to render an indictment or information duplicitous, more than one offense must be charged in a single count, and a second or superfluous offense must be sufficiently averred otherwise its description can be rejected as surplusage. Wharton, Criminal Procedure (10th Ed.) § 292; Baysinger v. Territory, 15 Okla. 386, 82 Pac. 728.

It is apparent from a reading of the foregoing information that there are not sufficient averments to charge the misdemeanor defined by section 2203, supra. The information merely charges that the parties, harbored by the accused had “theretofore escaped from the county jail of Le Flore county, Okla.” There is no allegation that the said parties were confined in said jail either on a charge or on a conviction .of a misdemeanor as required by section 2203, or that they escaped from said jail by means of force or fraud such as to render them guilty of a felony such as defined by section 2199, Revised Laws 1910; nor is there any allegation in the information that the accused assisted these parties to escape from any prison in this state. The allegation, therefore, that they had escaped from the county jail of Le Flore county, forms no material part of the crime charged; nor does it have the effect of charging a separate and second crime with sufficient definiteness and certainty to constitute the informa-' tion duplicitous. Such allegation may therefore be rejected as surplusage, and if the information in other respects sufficiently charges the felony defined by section 2204, supra, it was error to sustain the demurrer thereto.

We think the information is clearly sufficient to charge a felony defined by section 2204. The information, after charging the commission of a robbery by Cole Shumake and Walter Childers and that they were guilty thereof and that defendant well knowing their guilt, then charges that the defendant unlawfully, willfully, knowingly, and feloniously fed, lodged, armed, equipped, aided, and concealed the said Cole Shumake and the said Walter Childers in his home, and then follows further the specific allegations and averments of particular acts done by the defendant in that respect, to wit:

“* * * That is to say, did then and there knowingly, voluntarily, willfully, wrongfully, and feloniously admit and take the said Cole Shumake and Walter Childers into his home and give and furnish to them food and lodging and did then and there give and furnish to said Cole-Shumake and Walter Childers a certain 38-caliber Winchester rifle and did then and there stealthily and surreptitiously admit them into his home and conceal them therein, contrary, etc.”

The information is not open to the objection set out, in the opinion of this court, in Cole v. State, 15 Okla. Cr. 361, 177 Pac. 129, because the information is definite and specifically informs the defendant of the acts alleged to have been done by him in harboring, aiding, assisting, arming, equipping, lodging, feeding, and concealing said alleged felons. There is no merit in the contention that the information is so indefinite and uncertain that the defendant is unable to ascertain whether he is charged with a felony or misdemeanor. It could be indefinite and uncertain only because of its duplicity, and, holding as we do that the information is not duplicitous, the objection to its indefiniteness and uncertainty falls also.

We bold therefore that the information sufficiently charges a felony as defined by section 2204, Revised Laws 1910, that the trial court erred in sustaining the demurrer to the information. The judgment of the trial court in sustaining the demurrer to the information is reversed, and the cause is remanded, with directions to the trial court to set aside the order sustaining the demurrer to the information and to enter an order overruling the demurrer to the information and for further proceedings in accordance with law.

DOYLE, P. J., and BESSEY, J., concur.


text:
    MAX HIPSMAN v. STATE.
    No. A-3651.
    Opinion Filed April 22, 1922.
    (205 Pac. 1103.)
    (Syllabus.)
    Indictment and Information — Information Charging Pandering in Language of Statute. An information charging a person with the crime of pandering which only pleads the general terms of the statute is insufficient when properly challenged by demurrer, following Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331.
    Appeal from District Court, Comanche County; Cham Jones, Judge.
    Max Hipsman was convicted of pandering, and appeals.
    Reversed and remanded.
    J. S. Rhinefort, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Comanche county, wherein the plaintiff in error, Max Hipsman, hereinafter referred to as defendant, was on the 14th day of June, 1919, convicted of the crime of pandering and sentenced to serve a term of 10 years in the state penitentiary. From the judgment rendered against him an appeal has been taken to this court, and numerous errors are assigned. In view of the fact that this court is of the opinion that the information upon which the defendant was tried and convicted is insufficient, as against a demurrer thereto, to charge the crime of pandering, and as the other alleged errors are not deemed sufficiently prejudicial to authorize a reversal of the judgment independent of the insufficiency of the information, they will not be discussed in this opinion.

The charging part of the information is as follows:

“'‘That at and within said county and state, on the 8th day of March, 1919, Max Hipsman, then and there being, did then and there willfully, unlawfully, and feloniously, by abuse of his position of confidence and authority, to wit, the husband of a female person, to wit, Irene Hipsman, procure the said Irene Hipsman to enter, for the purpose of prostitution, a1 place to wit, the Southern Hotel in Lawton, Okla., in which said Southern Hotel prostitution was then and there encouraged and allowed, and by reason of the influence that the defendant had over said Irene Hipsman as her husband she did enter said house as aforesaid, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.”

The defendant interposed a demurrer to said information on the following grounds: First, that more than one offense is charged in said information; second, that the facts stated in said information do not constitute a public offense; third, that said information does not contain facts sufficient to constitute an offense against the laws of the state.

Said demurrer was heard and overruled, to which action defendant excepted. Thereafter defendant objected to the introduction of any evidence for the reason that the information failed to state facts sufficient to constitute a public offense. Thereafter defendant moved in arrest of judgment for the same reason.

Having tested the sufficiency of the information in the trial court by demurrer, by objecting to introduction of evidence and by motion in arrest of judgment, each of which were overruléd and exceptions saved, defendant now urges these several grounds for a reversal of the judgment.

This prosecution is based upon section 2425, Rev. Laws 1910. The part of said statute applicable reads as follows:

“Any person who shall * * * by abuse of any position of confidence or authority, procure any female person to become an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed within this state * * * shall be guilty of pandering, and upon conviction for any offense under this article shall be punished by imprisonment in the state penitentiary for a period of not less than two years nor more than twenty years, and by a fine of not less than three hundred dollars and not to exceed one thousand dollars. ’ ’

The state contends that the information following the language of the statute in charging the offense is sufficient.

In Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331, where the defendant was charged with procuring a female to become an inmate of a house of ill fame by promise and advice and scheme, based on similar provisions of the identical statute under consideration in this case, this court held that an information substantially following the language of the statute was insufficient because the words or terms used in the statute had no technical or precise meaning which of themselves defined the offense, and for that reason the facts and circumstances should be pleaded, since the Constitution provides that the accused shall be informed of the nature and, cause of the accusation against him, and the statute further provides that an indictment or information shall contain a statement of the acts constituting the offense when they are necessary to constitute a complete offense.

The opinion in the Abrams Case is well reasoned, and the application of the general principles of law therein stated to tbe statute under consideration and to an indictment or information following the language of such statute, we think, is impervious to attack.

We find some decisions, however, that hold under statutes defining pandering similar to the one here under consideration that an information or indictment following the language of the statute in defining the offense is sufficient. These decisions, however, merely declare the sufficiency of such indictment or information, but give no reasons for so holding. The Criminal Court of Appeals of Texas first held that an indictment drawn in the language of the statute was sufficient, but the cases so holding were specifically overruled in the no-cent case of Kennedy v. State, 86 Tex. Cr. R. 450, 216 S. W. 1086. The Texas statute defining pandering is practically identical with ours, and the constitutional provision that the accused shall have the right to demand the nature and cause of accusation against him is identical with that of Oklahoma.

The information here under consideration merely alleges that the defendant, “by abuse of his position of confidence and authority, to wit, the husband of a female person, did procure,” etc. None of the facts or circumstances (of which there might be many) constituting the abuse of the husband’s position of confidence and authority by which she was influenced to enter a place where prostitution was encouraged are detailed in the information. Whether the husband abused his position of confidence and authority by threats of violence, by any kind of misrepresentation or deceit, or by any other conceivable means is not set out.

Under the information, therefore, neither the court nor the defendant, until the evidence was introduced, could know by what particular acts or conduct it would be claimed defendant had abused his position of authority as husband, and the defendant would not until then know what he was called upon to meet and'answer.

Tested by the prescribed constitutional and statutory rules, we are of opinion that this indictment falls short of stating a complete offense in such a manner as to apprise the defendant of the nature and cause of the accusation against him and to enable him to understand what was meant and intended. This court is not disposed to depart from the reasoning and authority upon which the case of Abrams v. State, supra, is decided. The judgment is therefore reversed, and the cause remanded,' with direction to the trial court to sustain the demurrer to. the information and for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    B. E. SMITH et al. v. STATE.
    No. A-4179.
    Opinion Filed April 12, 1922.
    (205 Pac. 1105.)
    (Syllabus.)
    Evidence — Parol Testimony as to. Existence of Search Warrant. — The evidence procured by means of á search warrant held proper under the circumstances in this case, and not within the rule announced in Hess v. State, 84 Okla. 73, 202 Pac. 310, relating to illegal seizures.
    Appeal from County Court, Caddo County; C. B. Case, Judge.
    B. E. Smith and Henry Spence were convicted of manufacturing intoxicating liquor, and they appeal.
    Affirmed as to defendant Smith and reversed and remanded as to defendant Spence.
    R. Brett and Morgan & Osmond, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   BESSEY, J.

The accused, for convenience, will be referred to as the defendants, who were, by information filed in the county court of Caddo county, charged jointly with the unlawful manufacture of intoxicating liquors. B. B. Smith was-a farmer living with bis family on an Indian lease near-Carnegie. Defendant Spence was an employee of Smith. On, November 9, 1921, the sheriff and certain of his deputies went to the premises of Smith, with a search warrant, to look for an illicit still. Some distance from the residence they found a barrel of whisky, 2 copper cookers, and 20 barrels of mash buried in a pit near the timber or underbrush, where other-detached parts of a distilling outfit were found. When the officers arrived Smith was not there. In the search of the residence of Smith a bottle of whisky and a copper cooker were found. Presently Smith returned, and was placed under arrest. Spence drove up to a shed or crib with a load of corn, and was also placed under arrest. There is evidence tending-to show that Smith’s wife sought to mislead the sheriff and his deputies, so that they would not go near the stacks of feed and the place where the distilling operations were partially concealed.

There was no direct evidence connecting Spence with the' offense, except the fact that he was a laborer there on the farm. The only reference in the record affecting Spence is as follows:

“Q. Who was there when you got out there? A. Mrs. Smith, Mrs. Spence, and Mr. Spence came up pretty soon.
“Q. Now, after you had searched the house, what officers searched the premises? A. Me and; Burns and Banks. Mr. Spence came up afterwards, and I left him with Mr. Knupp. * * *
“Q. Did you have a conversation with Mr. Spence ? A. I just asked Mr. Spence what he was doing there, and he said whisky around there, and he said, ‘Well, if they are, I didn’t know it.’ He said he thought they were doing something. He said that some fellows come there and left after supper. He said he just drove in with a load of corn. I said, ‘Ever see that thing in the house?’ He said ‘Yes, I seen it, but I didn’t know what it was.’
“Q. How long did you say he had been working there? A. About a year.”

One of the assignments of error urged is that the court, over the protest of defendants, permitted secondary evidence of the search warrant to be introduced in evidence; that, excluding this secondary evidence, there was no proof that these officers had a search warrant, and that, according to the doctrine announced by our Supreme Court in Hess v. State, 84 Okla. 73, 202 Pac. 310, and by the United States Supreme Court in Boyd v. U. S., 116 U. S., 616, 6 Sup. Ct. 524, 29 L. Ed. 746, and Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, evidence procured by officers by means of an unlawful search or seizure cannot be used against the defendants. The evidence complained of appears in the record on the part of J. R. Cox, sheriff, and R. A. Burns, deputy sheriff, and is as follows:

■ “Q. Did you secure a search warrant for Smith’s place? A. Yes, sir.
“Q. Do you remember when it was secured, this search warrant?
“H. W. Morgan: Objected to as not the best evidence.
“The Court: Objection overruled.
“H. W. Morgan: Exception.
“A. I don’t remember.
“ * * * A. I don’t remember whether we filed this warrant the day before or earlier. * * *
“Q. What did you do by reason of this search warrant? A. I went to the B. E. Smith place and served the search warrant. He wasn’t home, and I gave a copy to Mrs. Smith, and she said she was Mrs. B. E. Smith.
“Q. Then what did you do? A. Started to search the place. She objected to me—
“H. W. Morgan: Objected to by counsel for tbe defendant ; that tbe return on tbe search warrant is tbe best evidence; and for tbe further reason that it has not been shown that, tbe search warrant was served and filed before tbe time of the-search.
“The Court: Objection overruled.
“H. W. Morgan: Exception. * * *
“Q. (To Mr. Burns). Do you recall tbe officers getting a search warrant to search the premises of B. E. Smith? A. Yes, sir.
“Q. Do you remember when it was issued? A. Well, T don’t remember the date.
“Q. Just tell the jury what you did under the search warrant.
“H. W. Morgan: Objected to as not the best evidence.
“By the Court: Objection overruled.
“H. W. Morgan: Exception.
“A. We went to Mr. Smith’s place, and searched the place and found this box and cooker in the house in the north room. We found the whisky in the kitchen, or the east room. Then we found, about 250 yards from his house, these two cookers and this stuff here and a barrel of whisky, and another barrel with five or six or seven gallons in it, I believe, and a barrel full of water that the worm was in, a well, spade, kegs; and over at this place where the still was buried they had a pit dug for a furnace, and had holes cut in the tin that went over it, and the cookers set down in the pit. We found 20 barrels of mash buried about 10 or 20 steps from where the still was. The holes were dug in the pit just a little bigger than the top of a barrel, and two 1x12 planks put together had been made to set on the floors, and these had been covered over and made to look as near like the plowed ground as possible. They had dug pits right in the ground in the potato patch where the mash was buried. ’ ’

To us it appears that this was- primary evidence that the officers had a search warrant. No effort was made to show its contents by secondary evidence or otherwise. There is no claim made that the officers did not have a warrant, and no effort was made to show that it was not sufficient to give the officers authority to make the search they actually did make. In order to expedite the trial, the existence of a writing may be proved by parol evidence, although it is not produced. If there is any dispute about its existence or about its contents the writing, of course, would be the best evidence. Evidence, 10 R. C. L. § 55.

The damaging evidence against the defendants obtained by means of this search warrant, for the most part, was not found at the residence, but hidden about a quarter of a mile distant, in and near an unfrequented tract of timber and underbrush. Herei it was they found the barrel of whisky, the furnace and distilling containers, the coil and condensing apparatus. No papers were seized; no private trunks or boxes were opened; no clothing or other private property was disturbed, carried away, or destroyed, as in the Hess Case, supra. The principles announced in the Hess Case will not be made to apply to conditions like this. We think there was primary evidence that the officers were armed with a search warrant; and the introduction of the bottle of whisky and the copper stewing vessel found at the house, similar to those found elsewhere, was proper, as tending to show that defendant Smith was manufacturing whisky.

The instructions seem to fairly cover the issues in the case, and' in all other respects, so far as the record shows, defendant Smith was accorded a fair trial, and as to him the judgment of the trial court is affirmed.

As to the defendant Spence, the evidence before quoted is very meager, amounting at most to a mere suspicion that he aided Smith in the making of the whisky. This was a hidden stilt, located some distance from the house, and Spence may not have known of its existence, or, if he did know, may have had no part in its operation. The motion for a directed verdict as to Spence should have been sustained, and the judgment as to him is reversed, and the cause remanded.

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


text:
    LEOTIS ALTIZER v. STATE.
    No. A-3784.
    Opinion Filed April 15, 1922.
    (205 Pac. 1106.)
    (Syllabus.)
    1. Arrest — Rights and Duties of Officers Arresting Without Warrant. — -For discussion of the rights and duties of peace officers in making an arrest without a warrant, see body of opinion.
    2. Assault and Battery — Evidence Insufficient to Support Conviction. —Evidence examined, and held insufficent to support the verdict, as the uncontradicted and apparently credible evidence discloses that defendant acted in defense of himself and domicile.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Leotis Altizer was convicted of assault with a dangerous weapon with intent to do bodily harm, and he appeals.
    Reversed.
    A. C. Sewell, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Pittsburg county, wherein, on the 13th day of December, 1919, plaintiff in error, Leotis Altizer, hereinafter referred to as defendant, was convicted of the crime of assault with a dangerous weapon with intent to do bodily harm after trial on an information charging defendant with having shot one George McKee with intent to kill him. The jury returned a verdict of guilty of the lower degree of felonious assault, but could not agree upon the punishment, and the court thereafter sentenced the defendant to 15 months’ imprisonment in the state penitentiary.

The shooting occurred in the town of Quinton in Pitts-burg county about 8 o’clock in the morning of the 4th day of April, 1917. Defendant was released upon bond, and the cause was continued from time to time until June, 1919, when the defendant was arrested and placed in jail on another offense. The sheriff made the defendant a trusty, and in July, 1919, the defendant escaped, and was not apprehended again until October, 1919, when he was found at his former place of residence, Quinton, and returned to jail and there incarcerated until his trial in December following.

Defendant was a veterinary surgeon with an office in the upper floor of a two-story building facing west on a public street in the town of Quinton immediately above, a millinery store in said town. He had lived in Quinton several years, had never been charged with any crime, either felony or misdemeanor, and, so far as this record shows, had borne a good reputation as a law-abiding citizen in said town.

The prosecuting witness, George McKee, claimed to be deputy town marshal by selection of the town council without any commission or other written authority evidencing his appointment, although he claims to have executed an official bond as such deputy officer. J. R. Crow was the town marshal of Quinton at that time. Some month or two before this shooting McKee, who ran a livery stable in that town, and the defendant had some trouble, and McKee had ordered the defendant not to come upon his premises. A Ft. Smith & Western train passed through the town of Qninton going east between the hours of 10 and 11 at night. On the night before this shooting the defendant had gone down to the depot, and when the east-bound train came in he walked around and talked to the engineer, who was at that time oiling the engine. Defendant says Crow, the town marshal, and McKee, the deputy, came around to where he was talking to the engineer and ordered him to go home, and defendant said that he “would not go until he got ready; that they had no right to make him go home; that he was not bothering anybody and was only talking to a friend.” McKee, in detailing what occurred at the depot, says that he saw the defendant “walk around on the far side of the train, and that he and Crow went around there, and defendant was talking to the fireman or engineer.” Crow said that he believed defendant was getting a little whisky, and said, “Let’s walk around there;” that they then walked around within six or eight feet of Altizer, but said nothing to him; that after that Altizer got in Jim Haden’s car and went back towards town, and that he and Crow walked around on Main street, and! he had started west on Main street towards his livery stable and heard two shots fired; that these shots sounded like they were behind the Hinton Building, which was across the street from the defendant’s office and was in the direction that Crow) had gone; witness, although an officer, made no effort to investigate this shooting; that the next morning he was at his livery barn, and Fred White came down there and told him that Crow had sent for him; White said that Crow and Altizer were “having some shooting up at Altizer’s office”; McKee then went into the barn office and got his shotgun (which was loaded with buckshot), and started up the street to Al-tizer’s office, and on the way met Tom Noblin, and Noblin told him Crow was needing him np there, to hurry up; they then walked together to the corner where Hill’s store is, which is across the street from Altizer’s office, when some one behind him holloed, “Look out, George!” that he then looked up towards the stairway and up towards Altizer’s window and threw his gun up and pointed it in that direction; that he did not see anything, but immediately was shot from the upstairs window, and thereupon he shot through the window; that some of the shot coming from the window hit him in the left leg above the knee, in the left wrist, and in the muscle of the left arm and in the lower part of the neck; that they were No. 8 shot; that Tom Noblin, who was walking a little way in. front of him, was also shot. As to the first shot coming from the window of Altizer’s office, the witness McKee is corroborated' by the testimony of Tom Noblin.

Defendant says that on the morning after he was accosted by Crow and McKee at the depot he was told by several persons that he named that Crow and McKee were looking for him with shotguns and said they were going to kill him; that he immediately went to his office for the purpose of calling up) the sheriff at McAlester and asking him to come and protect him; that while he was at the telephone trying to get the sheriff he heard somebody come up the stairway, knock! on the door of the office and ask if he was there, and, immediately upon replying that he was, a shot from a shotgun was fired through the front door of the office, lodging in the wall close to where he was standing; that this sudden attack upon him in his office and home (the evidence showing that he also slept in a room up there) greatly frightened and flustered him; that he was not apprised of the purpose of the person who knocked on his door; that said person did not inform him that he was an officer or that he desired to arrest him for any offense, and that he only asked if he was in there and immediately fired at him through the wooden door; that after the sudden attack was made upon him he grabbed a shotgun that was there in his office and shot back through the door for the purpose of frightening the person away and protecting himself and his premises; that after he shot back through the door he heard the person go back down stairs, and he immediately went out in the hallway and up towards the front part of the building into another office ; that in a few moments he returned to his office and was walking by the front window thereof with his shotgun in his hand for the purpose of putting it back where he kept it when two shots were suddenly fired from the outside through the south front window of his office; that the glass from the window fell all over him and he thought he was shot; that he immediatedly dropped down between the two windows and fired a shot in the general direction from which these two shots had come; that he could not see who he was shooting at, but believed it was an attempt on the part of Crow and McKee to assassinate him. It was this shot fired from the front window that struck both Noblin and McKee, and' it was on this evidence that the defendant was convicted. After the defendant had fired the shot out of his window and while he was still in his office, and without any evidence to show that there was any attempt being made to arrest him for any offense whatever, he was bombarded from all directions and all sides from 30 to 52 shots having been fired up through the floor into his office. But defendant escaped injury by retiring into another part of the building. Some three hours afterwards the sheriff of the county arrived upon the scene, and the defendant came out of his office' upon being told that the sheriff was there, and he was then arrested for shooting the prosecuting witness with intent to kill him. No charge was ever lodged against him for having shot the two shots the night before, nor is there any evidence that Crow had any warrant of arrest or was attempting to arrest the defendant without a warrant for that shooting or any other crime when he went up to the defendant’s, office on the morning of the shooting armed with a shotgun. The evidence is undisputed, however, that Crow left the town of Quinton about two or three weeks after this shooting without resigning as city marshal and has never returned to that community since.

While it is to be regretted that an innocent person was shot in this melee by the same load that hit the prosecuting witness McKee, we think it would be a travesty upon justice amounting to an abridgment of the natural rights of a person to defend himself and his domicile to let this conviction stand. That Crow first assaulted the defendant by shooting through the d'oor of his domicile is not disputed. That the prosecuting witness McKee armed himself with a shotgun loaded with buckshot and went to the scene of the trouble, on being told that Crow and the defendant were “in a shooting scrape,”' without ascertaining whether Crow was attempting to arrest the defendant, or without making any further investigation of the controversy, is admitted. While Crow and the prosecuting witness were officers, even if they were attempting to make an arrest in this case,which fact clearly does not appear from any testimony in the record, they were acting beyond the scope of their authority conferred by law as held in several recent opinions of this court. Ex parte Finney, 21 Okla. Cr. 103, 205 Pac. 197; Pamplin v. State, 21 Okla. Cr. 136, 205 Pac. 521. And see, also, Sharp v. U. S., 6 Okla. Cr. 350, 118 Pac. 675.

It is not the purpose or intention of this court to restrict or impede peace officers who make arrests or attempt to make arrests legally. The statute in plain and unmistakable terms provides the circumstances under which officers can legally make arrests without a warrant. This statute is applicable to all civil peace officers, whether acting under state, county, or municipal authority. It provides (section 5654, Rev. Laws 1910):

“A peace officer may, without a warrant arrest a person:
“First. For a public offense, committed or attempted in his presence.
“Second. When the person arrested has committed a felony, although not in his presence.
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

Section 5657, Id., also provides:

“When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense, or is pursued immediately after an escape.”

From the foregoing provisions it is seen that the first duty of an officer in attempting to make an arrest without a warrant (where the arrested party is not taken in the actual commission of the offense or has escaped and is immediately pursued) is to inform the person to be arrested of his authority in so acting and the cause for so acting. If this simple ■ provision of the statute were more closely observed by arresting officers (as it should be), we are convinced there would be much less trouble in making arrests without a warrant. The American people are very jealous of their fundamental right to personal liberty. They have ingrafted in every document of organic law, from the inception of this government to ■ the present day, provisions against unreasonable searches and seizures, and when peace officers, in plain violation of these fundamental rights, assume authority in making arrests, not given by statute, their actions and conduct will receive close scrutiny by the courts and condemnation when deserved. The fact that they are peace officers, sworn to support and enforce the law, should caution them to be more careful in its observance. Either wanton disobedience of our laws or lack of observance of them by petty peace officers is ofttimes a moving cause for willful disrespect for the law by unthinking persons, and leads to anarchy, mob violence, and a reign of terror in such communities.

On the other hand, it is the plain duty of the judiciary to support and protect those peace officers who act within their authority in making arrests and otherwise attempting to enforce the' penal statutes of this state. In no other way may the peace and dignity of the state be maintained and the judgments of its courts enforced. This court fully realizes the importance of lawful law enforcement and is ever ready to extend its protecting arm thereto, but illegal arrests or attempted arrests cannot be sanctioned or even tolerated merely under the cover of a peace officer’s commission.

The fact that the defendant was not placed upon trial for more than 2y2 years after his arrest is significant. In the interim between the time of his arrest and trial some of his witnesses had died, others had left the community, and others had enlisted in the army. Defendant says that he was led to believe that he would never be prosecuted for this alleged offense, and, had it not been for his betrayal of trust in escaping from the custody of the sheriff after his arrest on another offense, we seriously doubt if this charge would ever have been pushed to trial.

Defendant contends that tbe verdict is not supported by sufficient evidence, that the uneontradicted evidence shows that he was assaulted in his domicile unlawfully, and that all he did was done in his apparent necessary defense of himself and his domicile. We are of opinion that the events happening both prior and subsequent to the particular shooting for which the defendant was convicted clearly support his theory that there was no good-faith effort on the part of these officers to arrest him for a crime, but that the conduct of Crow was malicious and the result of animosity held against him, and that the verdict was more the result of prejudice and passion on the part of the jury, created largely because an innocent man was injured and also because the evidence disclosed that the defendant had escaped from jail. We are of the opinion that there is merit in these contentions; that this judgment should not be,permitted to stand upon this evidence; that, as heretofore stated, it would be a travesty upon justice and an abridgment of the fundamental right of a person to defend himself against an unlawful attack upon his person and domicile.

For reasons stated, the judgment is reversed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    In re OPINION OF THE JUDGES.
    No. A-4284.
    Opinion Filed April 19, 1922.
    (205 Pac. 1109.)
   Bequest by J. B. A. Bobertson, Governor of the State of Oklahoma, for an opinion in the matter of the conviction for murder of Lee Peters, who was sentenced to death-by electrocution. Opinion rendered.

Sir: In response to your official communication of March 28, 1922, addressed to this court, asking for an opinion, as provided in section 5969, R. L. 1910, in the matter of the conviction of Lee Peters of the crime of murder in the •district court of Creek county, Okla., and who was on the 24th ■day of February, 1922, sentenced to death by electrocution on the 21st day of April, 1922, within the state penitentiary at McAlester, Okla., as by law provided, we hereby respectfully .submit the following opinion of the Judges:

BESSEY, J. It appears from the transcript of the record «submitted to us by you that Lee Peters was prosecuted in the district court of Creek county upon an information charging him with the murder of J. A. Anderson in,said county on the 18th day of August, 1920, by shooting said Anderson with a .-.shotgun, killing him instantly.

The information in this case was originally filed in the ..district court of Creek county on the 27th day of August, 1920. On the 15th of August, 1921, an order was made transferring the cause to the superior court of said county, where the cause was tried and a verdict rendered, September 8, 1921, finding the defendant, Lee Peters, guilty of manslaughter in the first -degree and fixing his punishment at 10 years’ imprisonment at .hard labor in the state penitentiary. A motion for a new trial was filed and sustained by the court on September 27, 1921, a new trial was ordered, and the defendant was remanded into the custody of the sheriff of Creek county without bail.

On December 17, 1921, the cause was again ordered transferred to the district court of Creek county, where a second -trial was had, resulting in a verdict for murder February 3, 1922. In due course the court, on February 24, 1922, rendered Judgment on the verdict, in which the defendant was sentenced to the state penitentiary at McAlester, there to suffer death ■by electrocution on, April 21, 1922.

It will be seen from tbe foregoing tbat 56 days intervened between tbe day of rendition of judgment and tbe day fixed for inflicting death by electrocution. Tbe statutes of tbis state (chapter 113, Sess. Laws 1913) provide that tbe trial court shall appoint a day upon which such punishment shall be executed, which must be not less than 60 nor more than 90 days from the date of the rendition of such judgment. It was held by this court in the case of Noel v. State, 17 Oída. Cr. 308, 188 Pac. 688, that, where the time appointed for executing the death penalty is less than -60 days, that portion of the judgment is void. A part of the judgment rendered is as follows:

“It is further ordered, adjudged and decreed by the court that this judgment be executed in triplicate, and that the same be duly attested in triplicate by the clerk under the seal of the court, and that one triplicate copy thereof be filed in the office of the clerk of this court; that two triplicate copies thereof be by the clerk of this court immediately delivered to the sheriff aforesaid, one of said triplicate copies to accompany the body of the said defendant to the said penitentiary and to be there left, and to be the warrant and authority to the warden of the state penitentiary aforesaid for the imprisonment and the putting to death of said defendant, Lee Peters, and the other triplicate copy to be the warrant and authority of said sheriff for the transportation and imprisonment of said defendant, as hereinbefore provided, said last-named copy to be returned to said clerk of this court with the proceedings of said sheriff thereunder indorsed thereon.”

That portion of the judgment and sentence of the court appointing the 21st day of April, 1922, as the day of executing the death penalty is void, for the reason that it is in direct violation of the statute above referred to, and the triplicate copy as delivered to the warden of the penitentiary to operate as a death warrant, authorizing said warden to execute the death penalty on April 21, 1922, is void, and constitutes no legal authority to enforce the death sentence.

Except as above stated, a careful examination of tbe entire record discloses that all the formalities of law essential to the rendition of a judgment involving the taking of human life were observed, in the manner and form provided by the laws of this state, and that, except as stated, the defendant through-out the trial was deprived of no statutory or constitutional -right.

Seven witnesses testified on behalf of the state, and their testimony was amply sufficient to support the verdict ren•dered. The testimony on the part of the state, however, indi•-cates that there was, or might have been some provocation on the part of the deceased calculated to bring about the difficulty, and that possibly the deceased, in the first instance, was the .aggressor. For this reason we think it not improper to suggest that this is a case that might appeal to the conscience of the chief executive officer of the state as a proper case for the -extending of executive clemency to the extent at least of modifying the sentence to life imprisonment.

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


author: PEE CUEIAM.

text:
    M. F. GEORGE v. STATE.
    No. A-3875.
    Opinion Filed April 22, 1922.
    (205 Pac. 942.)
    Appeal from District Court, Tulsa County; Redmond S. Oole, Judge.
    M. F. George was convicted of grand larceny, and appeals.
    .Appeal dismissed.
    John Sykes, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUEIAM.

On the 15th of August, 1919, the county attorney of Tulsa county filed in the district court of said county an information charging this defendant, with another, of having on the 24th of April, 1919, stolen a Ford automobile in said county, the property of one F. D. Bruton.

Thereafter, on the 26th of April, 1920, the cause came on for trial before Hon. Redmond S. Cole, judge, and a jury, resulting in a verdict of guilty, leaving the punishment to the court. Thereafter, on the 4th day of May, 1920, a motion for new trial was overruled, and judgment and sentence rendered on the conviction; the defendant being sentenced to a term of imprisonment in the state penitentiary for three years.

Thereafter, on the 5th day of November, 1920, the defendant filed in this court his petition in error with case-made attached.

Section 5991, Revised Laws 1910, providing the time within which appeals must be taken in criminal cases, in part provides:

“In felony cases the appeal must be taken within six months after the judgment is rendered.”

Judgment having been rendered in this case in the trial court on the 4th day of May, 1920, and the petition in error with case-made not having been filed in this court until the 5th day of November, 1920, this court never, acquired jurisdiction of the appeal and the same is dismissed, and the cause remanded to the trial court, with directions to enforce the judgment.