text:
    JOHN HENRY BEAN v. STATE.
    No. A-10167.
    June 9, 1943.
    (138 P. 2d 563.)

      Cunningham & Clark, of Tishomingo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, John Henry Bean, was charged in the district court of Johnston county with the crime of assault with intent to kill, was tried and convicted of the lesser offense of assault with a dangerous weapon. The verdict of the jury was for a term of five years in the State Penitentiary with a recommendation that the trial court suspend the execution of the sentence. Notwithstanding the verdict of the jury, the trial court erroneously sentenced the defendant to a term of four years in the State Penitentiary.

Dee Smith, the complaining witness, was city marshal of the town of Bavia. According to his testimony he was notified about dark on January 13, 1941, that the defendant and one Pell Mayes were drunk in the town of Bavia. He saw them passing in an automobile and pursued them in his car, overtaking them about one-half mile south of Bavia. He ordered the defendant into his car and directed the Mayes boy to follow him back to town in the car of the defendant. When the witness started to get into his car, the defendant, who was sitting in the front seat of complaining witness’s car, hit him with a car crank and continued to beat upon him until he fell to the ground. He laid on the ground ten or fifteen minutes and then drove back to Ravia and called the sheriff and a doctor.

The doctor testified that he examined complainant the night of January 13, 1941, about 7 o’clock p. m.; that he had several contusions and lacerations about the face and'his face was also covered with blood. As to what caused the wounds, the doctor testified:

“Q. What would you say caused those wounds, Doctor? A. A blow of some kind, it was not a knife, it could have been a blunt instrument or possibly a fist or ring, I would not say what it was. * * * Q. Were his eyes swollen practically to? A. Yes, sir. Q. You said he might have received these injuries with a fist, take an ordinary fist and hit a man with it, do you think it would cause those gashes and cause such injuries as you found on this man’s person, his face and head? A. Possible, maybe.”

There were no fractures.

The other witnesses for the state testified as to defendant’s condition which corroborated the testimony of the doctor.

The sheriff further testified that after he was notified by the complainant as to what occurred, he started after the defendant and found him eight or ten miles from Ravia near Petty John Springs. That defendant admitted striking the officer but denied hitting him with a car crank, claiming' that he merely struck him with his fists. The defendant was a 20-year-old Indian boy.

On behalf of the defendant, his testimony consisted of proof that he was not intoxicated as alleged by the state, and some witnesses testified that after his arrest they saw defendant’s hands and they were swollen and bruised.

In his own behalf the defendant testified that he had supper in a cafe at Ravia and then started out of town. That after they had driven about a mile from Ravia he became sick and they drove off the road and parked and he got out of the car and was leaning up against a big tree. About that time the complainant Smith arrived and said “Let’s go.” That he did not know Smith was the laAV and when Smith started off with him he struck Smith with his fist and they had a scuffle and he continued to beat on Smith with his fists until he fell. That he was a professional boxer, having boxed when he was in school at the Murray School of Agriculture, later1 boxing two years in Mexico and a year at Ardmore. That he never did have anything in his hands when he was striking Smith but only used his fists. That after the fight had ended he got a wire off the fence and the complainant Smith took his automobile and pulled their car from a ditch where they had become stuck when they tried to turn around. That afer the fight he returned to Ravia, went to his mother-in-law’s, washed and had started to a dance when he was overtaken by the sheriff at Petty John Springs.

The first assignment of error is that the county attorney committed error in his cross-examination of the defendant by asking him questions about irrelevant matters solely for the purpose of creating prejudice in the minds of the jury against defendant.

The county attorney asked the defendant many questions about where he had been the night before the alleged assault. These questions established the fact that the defendant bad been drinking and bad been out, with a girl wbo lived in Ravia, all nigbt. Sometime during that nigbt, tbe exact hour of wbicb was not known by defendant except that it was after midnight, be bad married tbe girl but be had never lived with her after be bad brought her to her home in Ravia tbe next morning, wbicb was tbe morning preceding tbe alleged assault that night. After asking these questions tbe county attorney, over tbe objection and exception of defendant, was allowed to ask tbe following questions:

“Q. ("By Mr. Draper, County Attorney) I will ask you if it is not a fact on tbe night of the 12th day of April, 1941, last Saturday night, that you and a young lady by tbe name of Edna Jo Cover got married at Den-ison, Texas? A. No. (Objections and exceptions.) Q. What is your answer? A. No. Q. Isn’t it a fact you went out to Mr. Gover’s bouse last evening and went up to tbe house and knocked on the door, you wanted to see your wife, and told Mr. and Mrs. Cover you were Edna Jo’s husband? A. Yes, sir. Q. That is a fact, isn’t it? A. Yes, sir. Q. And they asked you to see tbe license? A. Yes, sir. Q. And you said you did not have them? A. That is right. Q. But you are not married to tbe girl? A. No, we intended to gO' to Denison and she said come there so she could go. Q. How long were you with her before you brought her home? By tbe Court: That is immaterial. Q. You did lie to Mr. and Mrs. Cover last nigbt? A. Yes, sir, I did.”

Tbe date of the alleged assault was January 13, 1941. The trial began on April 16, 1941, just four days after the date of the alleged occurrence with the young lady at Denison, Texas, as fixed by tbe questions of tbe county attorney.

All these questions concerning the alleged marital affairs of defendant were wholly irrelevant to tbe charge upon which he was being tried and could serve no purpose except to create prejudice in the minds of the jury against the defendant.

No objection was interposed on behalf of the defendant to the questions of the county attorney concerning the defendant’s activities with Charlene Wortham the night preceding the alleged assault. However, counsel did interpose objections to the questions concerning his relationship with Edna Jo Go ver four months subsequent to the alleged assault and' allegedly just four days before the commencement of the trial.

In Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809, 810, we held:

“The character of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character.”

In the body of the opinion this court quoted from the case of Jones v. State, 20 Okla. Cr. 154, 201 P. 664, as follows:

“It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of. the defendant’s life, makes it impossible for him to prepare to refute the charges, any or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R.C.L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.”

In the early case of Watson v. State, 7 Okla. Cr. 590, 124 P. 1101, it is held:

“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not time or not capable of being! proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.
“In jury trials, incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.”

We think the county attorney exceeded the bounds of legal propriety in his cross-examination of defendant in regards to the extraneous matters hereinbefore noted.

It is next insisted that the court committed error in his instructions to¡ the jury. The instructions are not numbered. They should have been so that counsel for the defendant could properly have made his objection to the specific instruction in question. The instructions are all joined together, but at the conclusion we find the statement: “The defendant excepts to the instructions of the court as above given.”

The defendant’s objection is directed to that part of the instructions which reads:

“You are instructed, Gentlemen of the Jury, further in this case that if after a full consideration of all of the testimony, and these instructions you entertain a reasonable doubt as to the guilt of the defendant, John Henry Bean, of the offense of attempt to hill as charged in the information herein, then it will be your duty to> determine whether he is guilty of assault with a dangerous weapon with intent to do bodily harm, as the same has been defined to you, and in this connection you are instructed that if you should find from all the facts and circumstances admitted in evidence for your consideration, and beyond a reasonable doubt, that on or about the 13 day of January, 1941, the said defendant, with the intent to do bodily harm to the said Dee Smith and without justifiable or excusable cause committed an assault upon the person of the said Dee Smith with any sharp or dangerous weapon, or by any other means whatever with intent to injure the said Dee Smith, although without intent to kill him, or to commit a felony, then and in that event it will be your duty to return a verdict of guilty against the defendant, John Henry Bean, for assault with a dangerous weapon with intent to do bodily harm. On the other hand, unless you are so satisfied from all of the evidence and circumstances and beyond a reasonable doubt, that the defendant did assault the said Dee Smith with a dangerous weapon with intent to do bodily harm then and in that event it will be your duty to return a verdict of not guilty.”

The defense interposed in this case was that the defendant, if guilty at all, was guilty of nothing more than assault and battery. Under the proof of the defendant he did not strike the complainant with anything other than his fists, which, under the decisions of this court, would not constitute a dangerous weapon within the meaning of the statute.

The statute under which the above instruction was drawn and the one upon which the conviction herein is based provides:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp- or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other mecms whatever, with intent to- injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.” 21' O.S. 1941 § 645.

The quoted words “or other means whatever,” which we have italicized in the above statute, clearly have reference to- the second part of said statute which makes it unlawful to shoot or attempt to shoot at another with any kind of firearm or air gun, and lias no reference at all to- the first part of the statute which makes it unlawful to commit an assault with a sharp or dangerous weapon.

We find by an analysis of the above statute two classes of weapons are defined: first, a sharp or dangerous weapon; second, any kind of firearm or air gun or other means whatever, which, under the doctrine of ejusdem generis, included only other weapons of like kind and character as the firearms or air guns which are specifically mentioned.

In Ingram v. State, 51 Okla. Cr. 143, 3 P. 2d 736, 737, it is stated:

“Where words of general import and of specific and limited signification are followed by general words, the general words will be construed as embracing only such persons, places, and things as are of like kind or class to those designated by the specific words.”

See, also, Ex parte Carson, 33 Okla. Cr. 198, 243 P. 260.

We have never been called upon to determine whether an ordinary human fist could ever be classified as a dangerous weapon. It certainly is not a dangerous weapon per se, and we have consistently held that if the weapon used in an alleged assault is not deadly per se in an information charging an alleged offense under 21 O.S. 1911 § 652, the information should allege facts showing a sufficient description of such weapon, the manner in which it was used, and the effect produced by the use thereof. Moody v. State, 11 Okla. Cr. 471, 118 P. 1055; Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910.

When the court instructed the jury that if they found beyond a reasonable doubt* that defendant committed an assault upon the person of the said Dee Smith with any -sharp or dangerous weapon, or by any other means whatever, it would be their duty to find the defendant guilty of assault with a dangerous weapon with intent to do bodily harm, he was, in effect, advising them that they should find the defendant guilty if they had concluded that the defendant used nothing other than his fists. There is no other instruction which advises the jury that if they should find that the defendant and the complainant ■had a fist fight, as contended by the defendant, that he would be guilty of nothing more than assault and battery. We think the above instruction is fundamentally erroneous as authorizing a conviction for a felony on certain facts which, if defendant’s story is true, would only justify a conviction for a misdemeanor.

There are other assignments of error particularly with reference to the question of newly discovered evidence which was set forth in the motion for a new trial, but because of the necessity for reversal of this case on account of the errors hereinabove discussed, it is not necessary that we discuss this contention as such evidence may be procured at tbe next trial. The other assignments of error are without merit.

Although the question is not raised, probably because it was advantageous to defendant, we call attention that there is no authority for a trial court to- modify the verdict of a jury when pronouncing judgment. Only this court has a right to modify the sentence meted out to an accused. 22 O.S. 1941 §§ 926 and 1066.

The judgment of the district court of Johnston county is reversed and remanded for a new trial.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    ELMER McDANIELS v. STATE.
    No. 10173.
    June 16, 1943.
    (139 P. 2d 191.)

      Carl C. Weaver, of Pawhuska, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for defendant in error.
   BAREFOOT, J.

Defendant, Elmer McDaniels, was charged jointly with Charley Beck in the district court of Osage county, Okla., with the crime of larceny of livestock, to-wit: one gray mare and one iron gray horse; was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed.

This case grew out of the theft of the above described property from Oscar Miller, in Osage county, on or about the 1st day of December, 1940.

For a reversal of the case, it is contended, (1) that there was a material variance in the information and the evidence offered by the state; (2) that the court erred in giving instruction No. 7; and (3) that the court erred in refusing to' give a certain requested instruction, and in giving instruction No. 5.

The first assignment of error is based upon the fact that the evidence of the state was that the horses alleged to have been stolen were not the property of Oscar Miller, but were owned by his mother. Oscar Miller’ had traded a cow belonging to his mother for the two horses, had possession of them at the time they were stolen, was using them for the purpose of farming, and the evidence showed that he not only had possession of the horses but that he had the right to dispose of them if he so desired.

It is conceded by the defendant in his brief that this question has been decided adversely to his contention by this court in the case of Butler v. State, 60 Okla. Cr. 188, 62 P. 2d 662. The second and third paragraphs of the syllabus in that cáse are as follows:

“The actual status of the legal title to stolen property is no concern of the thief; so far as he is concerned, one may be taken as the owner who is in possession of the property and whose possession was unlawfully disturbed by the taking.
“In a prosecution for larceny of livestock, the name of the owner of the property stolen is only required to identify the transaction, so that the defendant, by proper pleading, may protect himself against another prosecution for the same offense.”

The second assignment of error has reference to' an instruction based upon the law as stated in the Butler Case. From what has been stated, there was no error in giving instruction No. 7. The fact that the legal title to the property ivas in the mother of Oscar Miller, did not excuse the defendant ivhen it was proven that Oscar Miller had possession and control of the horses at the time of the taking.

The third and fourth assignments of error are that the court erred in refusing to give requested instruction No. 1, which was as follows:

“You are further instructed that the felonious intent is one of the material allegations of the crime of larceny of livestock, as charged in the information, and the burden is on the state to prove that element to your satisfaction beyond a reasonable doubt.”

And in the giving of instruction No. 5, which was as follows:

“You are instructed that larceny is the taking of personal property, accomplished by fraud, or stealth, with the intent to deprive another thereof.
“In this connection you are further told that if you find from the evidence, facts and circumstances in proof, beyond a reasonable doubt, that in the county of Osage, State of Oklahoma, on or about the 1st day of December, 1910, the defendant Elmer McDaniels, while acting together with Charley Beck, did wrongfully, unlawfully and stealthily take, steal and carry away the property described in the information with the intent then and there existing in the mind of said Elmer McDaniels and Charley Beck to deprive the owner permanently thereof, then and under such circumstances, it would be your duty to¡ find the defendant guilty as charged in the information.

“Unless you should so find, it would be your duty to find the defendant not guilty.”

These two assignments of error may be considered together.

The general statute upon larceny in this state is section 2253, O.S. 1931, Tit. 21 O.S.A. 1911 § 1701, which is as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

The statute which deals with larceny of domestic animals is section 2267, O.S. 1931, Tit. 21 O.S.A. 1911 §1716, and is as follows:

“Any person in this state who shall steal any horse, jackass, jennet, mule, cow, or hog, shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years; and any person in this State who shall steal any sheep, or goat, shall be guilty of a felony and upon conviction therefor shall be punished by confinement in the State Penitentiary for a term not less than six months, nor more than three years. The Avord 'horse’ as used in this act, shall include all animals of the equine species and the word 'cow’ shall include all animals of the bovine species.”

The information in this case was filed under the section dealing with the larceny of domestic animals.

This court has had occasion to consider the construction of the statutes above quoted in relation to each other, and has definitely decided that they are separate and distinct; that neither depends upon the other, and that each should be applied as the facts justify; that the Legislature has modified the general statute with reference to larceny as applied by the common law, SO' that the talcing of personal property accomplished by fraud and stealth and with intent to deprive another thereof is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, and for the purpose of converting it to the use of the taker. Thus while the statute has broadened the meaning of the term “larceny,” the words “steal” and “stealthily” have not been defined by the statute, and must be determined by their common law meaning. Under the statute of larceny of domestic animals, it will be noted that the word “steal” is used. Where the word “steal” is used, it means to take and carry- away property of another with the felonious intent to deprive the owner thereof, and to appropriate the same to one’s own use. It must be noted that when the word “steal” is used either in the information or in an instruction, that it carries with it the meaning that the property converted is by felonious intent.

In the early case of Hughes v. Territory, 8 Okla. 28, 56 P. 708, Judge Burwell of the Territorial Supreme Court gave at length the history of the passage of the two statutes above quoted. Since that time the statute has been amended, but only in minor details and with reference to increasing the minimum and maximum punishment imposed.

This court, in an early opinion by Judge Doyle in the case Crowell v. State, 6 Okla. Cr. 148, 117 P. 883, 885, quoted from the Hughes Case and said:

“The decision in this case is approved and followed by this court.”

It is further said:

“When a prosecution is predicated upon section 2606, to support a conviction, the ownership of the animals stolen must be alleged and proved, and it is necessary to allege and prove a felonious intent on the part of the taker to- deprive the owner thereof and to convert the same to his (the taker’s) own use, which specific proof is not necessary to support a conviction under the general larceny statute. That was done in this case. The allegation of value in the information is not material, and may be rejected as mere surplusage, which does no harm. But one offense — the larceny of live stock, as defined by section 2606 — is charged in the information, and the objection tO' the verdict on the ground that it is too general is not well taken.” See, also, the following cases: Underwood v. State, 23 Okla. Cr. 119, 212 P. 1010; Smith v. State, 10 Okla. Cr. 544, 139 P. 709; Bayless v. State, 9 Okla. Cr. 27, 130 P. 520; Cope v. State, 23 Okla. Cr. 161, 213 P. 753; Dunn v. State, 14 Okla. Cr. 452, 172 P. 463; Stanley v. State, 61 Okla. Cr. 382, 69 P. 2d 398; Hughes v. State, 61 Okla. Cr. 40, 65 P. 2d 544; Richardson v. State, 76 Okla. Cr. 101, 134 P. 2d 375.

It is the contention of the defendant that the case of Sneed v. State, 61 Okla. Cr. 96, 65 P. 2d 1245, 1248, is decisive of the issues involved in this case. ,

It is true that the same requested instruction was asked in both cases. However, the instructions given by the court are not identical. The facts in the Sneed Case did not justify an affirmance of the judgment and sentence, as the court stated:

“Upon a careful examination, our conclusion is that the evidence is insufficient to sustain the conviction.”

The facts in that case justified this assertion, and while the court refers to the instruction given, the main reason for reversing the case was the insufficiency of the evidence. Here, the record amply justifies the conviction of the defendant, as will be hereafter shown.

In 36 Corpus Juris, 931, § 547, it is stated:

“The omission from an instruction of the words ‘felonious’ or ‘fraudulent’ is not a fatal defect, if words of equivalent meaning are used, or if the elements of a felonious intent are otherwise sufficiently expressed. The use of the word ‘steal’ in an instruction has been held to import sufficiently a felonious intent.”

In the case of Allen v. Commonwealth, 144 Ky. 222, 137 S.W. 1060, it is said:

“Appellant claims the lower court erred in instructing the jury. His complaint is confined to the first instruction, which is as follows: ‘If the jury believe from the evidence beyond a reasonable doubt that the defendant, Bascom Allen, in this county and within 12 months before finding the indictment, did take, steal, and carry away from the possession of Bud Coats two chickens of value, the property of said Coats, with the intent and purpose to convert same to his own use and deprive the owner of the same, they will find him guilty as charged in the indictment, and fix his punishment a,t confinement in the jail not less than one month and not more than twelve months.’ The complaint is that the court did not require the jury to believe from the evidence beyond a reasonable doubt that appellant ‘feloniously’ took the chickens, with the purpose of depriving the owner of them and to convert them to his own use, etc. The court did require the jury to believe that appellant did take, steal, and carry the chickens away, with the intention and purpose of converting them to his own use and thereby deprive the owner of them, which, if true, amounted to a felonious taking. Brooks v. Commonwealth, 28 S.W. 148, 16 Ky. Law Rep. 356. It was necessary to charge in the indictment that appellant feloniously took the chickens', but it was not necessary to use the word ‘felonious’ in the instructions; for, if the jury believed as the court told them they must believe, they necessarily believed that he acted felon-iously.”

In the case of Philamalee v. State, 58 Neb. 320, 78 N. W. 625, it is said:

“While an instruction defining ‘larceny’ is erroneous which omits to charge that the taking must be with a felonious intent, the instruction need not use the word ‘felonious,’ if words of equivalent import or meaning are employed.”

See, also, the following cases: State v. Minor, 106 Iowa 642, 77 N.W. 330; State v. Ward, 261 Mo. 149, 168 S.W. 940; State v. Speritus, 191 Mo. 24, 90 S.W. 459; State v. Yates, 159 Mo. 525, 60 S.W. 1051; People v. Tomlinson, 102 Cal. 19, 36 P. 506; Stewart v. Commonwealth, 191 Ky. 538, 230 S.W. 950; Ashlock v. State, 16 Tex. App. 13; State v. Tipton, 307 Mo. 500, 271 S. W. 55; State v. Frost, Mo. Sup., 289 S.W. 895; Ryal v. State, 16 Okla. Cr. 266, 182 P. 253.

The case of Lockhart v. State, 10 Okla. Cr. 582, 139 P. 1156, 1158, is in conflict with the rule above announced, but in reading that case, it will be noted that the court said:

“This court is of the opinion that the evidence introduced by the state is insufficient to' support a conviction of the offense charged.” The record bears out this statement, and the court also reversed this case upon another erroneous instruction which required the jury to believe from “the evidence that he is innocent before finding him not guilty, thus in effect depriving defendant of the benefit of the presumption of innocence until the contrary is proven.”

While there is some conflict of authority upon this proposition, much of the conflict is by reason of the peculiar terms of the different statutes. From a careful reading of many cases, we have come to the conclusion that under statutes Avhich have the word “steal,” and this term is used in the instruction, that it carries Avith it a meaning that the larceny must have been Avith felonious intent. It Avill be noted that the statute under which defendant was charged does not mention the word “felonious,” but as noted above the word “steal” under its common law meaning implies that term.

We also call attention to section 3206, O.S. 1931, Tit. 22, O.S.A. 19-11 § 1068:

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

This court has often held in construing this statute that although an instruction may be erroneous, the case Avill not be reversed for this reason unless upon an examination of the entire record it is found that the defendant Avas prejudiced by the instruction given, and that the record as a Avhole did not reveal the guilt of the defendant. Martin v. State, 46 Okla. Cr. 411, 287 P. 424, 85 A.L.R. 512; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289; Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144.

The record in this case discloses that the prosecuting witness, Oscar Miller, was in possession of one gray horse about four years old, and one gray mare, which were the property of his mother, but he was in possession of the same with her consent, and making a crop at his home in Osage county; that he had traded a cow which belonged to his mother for the two horses; that he last saw the horses in his pasture about dark on the night of December 1, 1940; that the next morning, his hired hand could not find them; that they were gone and had been stolen. Upon an examination he found where they had been taken from his pasture, and he notified the officers in Tulsa county, near where he lived. A deputy sheriff, John Jones, located the horses in Creek county, and within a distance of about ten miles from the home of Oscar Miller. The four year old horse was at the home of a Mr. Stephens, and the gray mare was at the home of Dick Prather, in Creek county, a few miles distance from the home of Mr. Stephens. Both Mr. Stephens and Mr. Prather were personally acquainted with the defendant Elmer McDaniels, and both testified that they bought the horses from him about the 3rd of December, 1940, and that he brought them to their respective homes in a truck. Defendant told Mr. Stephens that he bought the horse sold to him. from someone in Vinita., and told Mr. Prather he bought the one he sold him from someone at Chelsea.

Mr. Miller, in company with Deputy Sheriff Jones, saw both the horses at the homes of Mr. Stephens and Mr. Prather, and identified them as being his horses. He took the four-year old horse from Mr. Stephens’ home to his own place, and the next day after he saw the gray mare at Mr. Prather’s home and before he could go and get her, someone unknown to him brought her home and placed her on his premises.

Officer Jones testified that he had a conversation with the defendant after he had located the horses in Creek county, and told him that he was being accused of stealing them. He also testified to conversations which he had with the defendant with reference to the stolen horses. He said:

“A. Well, he said he did not get them in Osage county. He said some fellows stole them, and loaded them in his truck up there on the county line, but it was on the south side of the highway, which would have put it in Tulsa county.”

The defendant did not take the witness stand in his own behalf, but there was introduced in evidence by the state a written statement made by him while in jail, after his arrest. This statement was taken at his request by the county attorney of Osage county, and in the presence of his attorney. It was a voluntary statement, and it is unnecessary to give the details thereof. He made many statements therein with reference to the stealing of the property, but attempted to lay the blame on others. He could only -give the names of some of the parties, and they were not present at the trial. He claimed they had stolen' the horses and placed them in his truck. This statement clearly revealed the guilt of the defendant in the taking of the horses, and he admitted selling them to Mr. Stephens and Mr. Prather. The jury evidently did not believe his statement that he purchased the horses from some other party in Tulsa county.

After a careful consideration of this record, we are of the opinion that no error appears therein that is not harmless, and that the defendant was not prejudiced in any way, and that the judgment and sentence of the district court of Osage county should be affirmed. It is so ordered.

JONES, P. J., and DOYLE, J., concur.


author: JONES, P. J.

text:
    Ex parte BETTY BEATRICE BROWN.
    No. A-10394.
    June 16, 1943.
    (139 P. 2d 196.)
    Judd L. Black, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in babeas corpus instituted by tbe petitioner, Betty Beatrice Brown, for tbe purpose of securing ber release from confinement in tbe State Penitentiary.

Tbe petitioner was sentenced on February 9, 1943, by tbe district court of Oklahoma county to serve a term of two years imprisonment in the State Penitentiary on a plea of guilty to the crime of exposing a person by the act of sexual intercourse to a venereal disease.

68 O.S. 1941 § 543 is the statute under which the information against the accused was allegedly drawn. This statute provides:

“Any person who shall, after becoming an infected person and before being discharged and pronounced cured by a reputable physician in writing, marry any other person, or expose any other person by the act of copulation or sexual intercourse to such veneral disease or liability to contract the same, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for not less than one (1) year or not more than five (5) years.”

The information filed against the petitioner, omitting formal parts, reads:

“On the 28 day of November, 1942, in Oklahoma County, State of Oklahoma, Betty Beatrice Brown whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of exposing a person by the act of sexual intercourse, to a venereal disease in the manner and form as follows to wit:
“That is to say, the said defendant in the county and state aforesaid, then and there being infected with a venereal disease, did then and there wilfully, unlawfully and feloniously expose one John Doe a sailor in the United States Navy, whose more full and correct name is to your informant unknown, to said venereal disease by having sexual intercourse with the said John Doe, contrary to the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma.”

The sole question presented. by this proceeding is whether the information is fatally defective and insufficient to confer jurisdiction on the district court to sentence petitioner for said alleged crime, by reason of its failure to negative the fact that the accused had exposed the sailor to the venereal disease “after becoming an infected person and before being discharged and pronounced cured by a reputable physician in writing.”

Counsel for petitioner instituted this action after reading the opinion of this court in the case of Duggins v. State, 76 Okla. Cr. 168, 135 P. 2d 347, wherein we held that an information charging the crime of rape must contain the negative averment that the female upon whom the ■crime was committed was not the wife of the person accused of perpetrating the offense. As will be seen by reference to that case, the authorities: sustain that proposition. The Attorney General also* confessed error, which was an additional reason for the reversal of that judgment of conviction.

In the case of Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262, this court sustained an information under the identical statute under which the information herein is prepared, which information is similar in language to the information here in dispute. It was there alleged:

“That the said M. T. Epps did then and there knowingly, wrongfully and unlawfully and feloniously, by the act of copulation, communicate to the said Ruth Epps, a venereal disease, to wit: syphilis, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

Although the specific question now raised was not considered in disposing of the Epps Case, we did hold in affirming that judgment that there were no fundamental defects in the information or the proceedings before the trial court which would deprive the court of jurisdiction to sentence the accused.

There are many decisions of this court wherein we have held that exceptions in a statute similar to the exception herein, which provides for a written release from a reputable physician, are a defense to be pleaded by the defendant. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A. 1917E, 668; Carr v. State, 25 Okla. Cr. 289, 220 P. 479; Key v. State, 29 Okla. Cr. 436, 234 P. 791.

It is fundamental that it is not necessary in an information to allege any fact which is not necessary for the state to prove to secure a conviction. Under the statute herein, if we should hold that the state had the burden of proving that the accused had not been discharged and pronounced cured by a reputable physician in writing, it would create an almost insurmountable burden. The state would not be in possession of' the information as to who had been,administering treatment to the accused, or whether she had even been given treatment for her venereal disease. The prosecution surely would not be required to bring all of the doctors in the community to court to inquire whether they had discharged the patient as cured. To this court it is apparent that this provision was inserted in the statute by the Legislature as a matter of defense which may be interposed by an accused, and when such defense is made it then should be submitted to a jury for their determination as to whether the accused had been discharged as cured by a reputable physician in writing and had innocently exposed another person to a venereal disease under the honest belief that she was no longer infected. The state has the burden of proving beyond a reasonable doubt that the accused had become infected with a venereal disease, and that subsequently thereto she had exposed another person to such disease by some of the means set forth in the statute.

After a consideration of this matter, it is our opinion that the information filed against the petitioner in the district court of Oklahoma county, being in the language of the statute, was sufficient to allege a violation of 63 O..S. 19-11 § 513, and that a commitment on a plea of guilty to said information is sufficient authority for the respondent to hold the petitioner confined in the penitentiary to serve her said sentence.

For the reasons hereinabove stated the petition for writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


text:
    VIRGIL EDSON v. STATE.
    No. A-10159.
    June 23, 1943.
    (139 P. 2d 198.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Virgil Edson, was charged in the district court of Garter county with the crime of burglary in the second degree, was tried, convicted and sentenced to serve five years in the State Penitentiary and has appealed.

It is first contended that the court erred in not sustaining a motion for an instructed verdict of acquittal for the reason that there was a material variance between the allegations of the information and the proof.

That part of the information in question alleges that the defendants did break and enter in the nighttime “a certain store building of one Excelsior Laundry, located at 15 A.S.E., the said building being the property of the said Excelsior Laundry * * *.”

In the trial of the' case all of the witnesses testified that the building was known as the Excelsior Laundry building.

W. E. St. John testified that he was one of the owners of the Excelsior Laundry; that the laundry belonged to him and Philiip Spears. That the name Excelsior Laundry is the trade name under which they operate.

One of the witnesses for the state testified that he was employed by the “Excelsior Laundry.” The proof is definite that the correct description of the building by street number as 15 A.S.E. is correct.

It is the contention of the defendant that the information is defective in not alleging that the Excelsior Laundry was a partnership and giving names of the partners, and that when the proof developed that this laundry was owned by two individuals and the name “Excelsior Laundry” was merely a trade name, there was a material variance between the allegations of the information and the proof.

22 O.S. 1941 § 406 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.”

In construing- and applying this statute in larceny, burglary, forgery and other cases, this court has sustained informations similar to the one in question and has held variances such as here disclosed as not material.

In Gunter et al. v. State, 16 Okla. Cr. 476, 184 P. 797, an information alleging that defendant stole coal-, “the property of the D. Beams Drilling Company,” was held a sufficient allegation of the ownership of such property where defendant insisted that the information should allege whether said company is a corporation or a partnership, and if a partnership to give the individual names of the members.

In Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592, the court held that there was not a material variance where the information charged a forged check was negotiated with the Lawton Tire Company and the proof showed! that it was passed fi> the Lawton Tire Shop.

For other cases see: Lewis v. State, 73 Okla. Cr. 172, 119 P. 2d 91; Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483; Smith v. State, 34 Okla. Cr. 318, 246 P. 883; Martin v. Territory, 4 Okla Cr. 105, 43 P. 1067; Hawkins v. State, 55 Okla. Cr. 396, 32 P. 2d 101; Garner v. State, 51 Okla. Cr. 368, 1 P. 2d 787; Keasler v. State, 38 Okla. Cr. 255, 259 P. 1059.

This court cannot see where the defendant was misled by the allegations of the information. With the correct street number given and the name by which the laundry company was generally known inserted in the information, the defendant was enabled to prepare his defense, and we think the information is sufficiently definite to protect the defendant against a future proceeding.

It is next contended that the court erred in refusing to exclude the testimony of Oliver Craighead and George Lane from the consideration of the jury. These two witnesses were codefendants and testified on behalf of the state against the defendant. They each testified that they had known the defendant previously and just prior to the burglary had come to Ardmore and rented a cabin at a tourist camp operated by defendant’s father where the defendant was staying. That defendant had selected the building which they intended to burglarize, and on the afternoon before the burglary had Avalked past the building Avith them so that they might become familiar Avith how the crime should be committed. That the defendant Edson and Lane pried open a AvindOAV and entered the building Avhile Craighead remained on the outside to give warning if anybody approached. They each described! the tools which were used and the 'articles which were stolen from the building, including the money Avhich was divided equally between the three.

On cross-examination of each of these Avitnesses counsel for the defendant brought out the fact that each of them had told him the day before the trial, Avhile they were in jail, that Virgil Edson, the defendant, did not have anything to do with the burglary, and that they were testifying because of fear that the county attorney would prosecute them for perjury unless they testified against defendant. On redirect examination the Avitnesses each reiterated that the story of the burglary they told on the Avitness stand implicating the defendant was true, and that they had each testified in preliminary hearing to the same state of facts and had previously testified in the district court in which they related the same facts as they related in the trial of the instant case. They further stated that the county attorney told them that all he wanted them to testify was the truth. The testimony of these two witnesses was given in detail and to this court it has the ring of truthfulness as to who committed the crime.

This question as to whether the fact that a witness admits that his testimony is given under such circumstances as might constitute duress and thus require the court, as a matter of law, to exclude it from the consideration of the jury, has not been presented to this court for an opinion so far as the author is advised. At least, neither counsel for the state nor the defendant have cited any authorities from this state on this question. Counsel for defendant cite the case of Ford v. United States, 8 Cir., 259 F. 552, while the Attorney General entirely ignores this question in his brief.

We have repeatedly stated that the jury has the power to determine the weight and credibility which they shall give to the testimony of each witness. The attorney for the defendant was therefore within his rights in bringing out the fact that these witnesses had made a former statement to him different from the one related by them on the witness stand and to further show the circumstances under which their testimony was given for the purpose of affecting their credibility. Whether a witness has been discredited is a question of fact and not of law. It was the jurors’ duty to consider all of the circumstances surrounding the testimony of these two witnesses and give such evidence the weight to which, in their opinion, as conscientious jurors seeking to ascertain the truth, they believe it to be entitled. Gifford v. State, 11 Okla. Cr. 8, 269 P. 788; Green v. State, 39 Okla. Cr. 231, 261 P. 215.

Counsel for defendant in a supplemental brief present a proposition which was not urged in their original brief, to wit, that the evidence of the two accomplices was not sufficiently corroborated so as to justify the court in sustaining the conviction.

The commission of the burglary by prying open a window, entering the building and stealing money and other personal property contained therein is proved. Walter Stalling and his two daughters testified that they were acquainted with the defendant Edson and had known him for several years. Stalling was employed by the Excelsior Laundi-y. About 5:30 or 6 p. m. on the afternoon preceding the burglary in the nighttime, the two daughters of Stalling came to the laundry after their father. These people testified that while they were there on that occasion that the defendant Edson and two other men walked by the laundry. That it was nearly dusk when this occurred and the two people with the defendant were strangers to them and they were unable to> identify these parties.

Ruel Walker testified that he walked by the Excelsior Laundry between 8 and-9 p. m. and saw a person standing there in front of the laundry by himself and identified one of the two accomplices as this person. He stated further that he heard noises on the inside of the building, but did not know what made the noise.

The officers testified that in making an investigation of the burglary, they found a clear imprint of one of the burglar’s shoes just beneath' the window through which the burglars had entered the building. That after the defendant and the two accomplices were arrested, they removed the shoes from each of them and that the boot shoes of the defendant Edson exactly fitted into the imprint left by one of the burglars at the window and that neither of the shoes of the two codefendants fitted into the tract. The officers further testified that when they discussed the crime with the defendant Edson, he told them that he canned the job. When the defendant was asked to explain what he meant by this, the officers said the defendant stated that he did not go into the building himself but he showed the accomplices the spot and went over the situation with them.

A conviction may not stand upon the uncorroborated testimony of. an accomplice. The corroboration is not sufficient if it merely shows the commission of an offense or the circumstances thereof. 22 O.S. 1941 § 742.

If the accomplice is corroborated, however, as to some material fact or facts by independent evidence tending to connect the defendant with the'commission of the crime, the jury may .from that infer that the accomplice speaks the truth as to all. Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825.

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

In Key v. State, 38 Okla. Cr. 169, 259 P. 659, this court held:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

In applying this test, as can be seen from the short review of the corroborating testimony above given, there is sufficient corroboration to sustain this conviction. The defendant’s own admissions of facts showing guilt, together with the fact that his boot shoes exactly fitted the track of the burglar, and the circumstances of his being seen at the laundry building by Stalling and his two daughters, which refuted the alibi of the defendant, are sufficient corroboration under the law. The defendant did not testify but his defense was in the nature of an alibi.

It is our conclusion that there are no material errors and that the judgment of conviction should be affirmed.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


text:
    JAKE JAMES v. STATE.
    No. A-10147.
    June 23, 1943.
    (139 P. 2d 202.)

      Ben W. Carter, of Durant, for plaintiff in error. .
    Mac Q, Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Bill Steger, Co. Atty., of Durant, for defendant in error.
   BAREFOOT, J.

Defendant, Jake James, was charged in the district court of Bryan county with the crime of burglary in the second degree, was tried, ¡convicted, sentenced to serve a term of two years in the State Penitentiary, and has appealed.

From an examination of the record, it becomes necessary to discuss only one assignment of error.

Defendant was charged with burglarizing a building occupied by the tag agent of Bryan county, in Durant, on the night of May 17, 1940, by prying open a transom, entering therein and stealing a money box containing $18.70.

Just after defendant had committed this burglary, he was seen by a police officer, who gave chase and captured the defendant on the streets of Durant. He was taken to the place where the officer had seen him throw the box away, and the box, with the money therein, was recovered.

It is unnecessary to give the details of the evidence. Defendant’s defense was that of an alibi, several witnesses testifying that he was at his home, and therefore could not have been present at the time the burglary was committed. The evidence was amply sufficient to sustain the conviction of the defendant.

After the case had been submitted to the jury and they had deliberated on their verdict for quite a period of time, they returned into court and the following proceedings were had:

“Reporter’s note: After the court gave oral instructions, and after argument of counsel, the Jury retired to the Jury room to consider its verdict, and after deliberating a while, returned to the court room to get certain information from the court, and was advised by the court, and ordered to the jury room in charge of the bailiff.
“By Mr. Carter (attorney for the defendant) : Let the records show that the jury returned to the court room at 3:15 p. m. and told the Judge that they wanted to' know*, if they could give the defendant a suspended sentence and the Judge instructed them, that it was not within their power to give the defendant a suspended sentence, but they could recommend a suspended sentence and he would not promise them anything, except that he would go into' the case and decide whether or not the defendant was entitled to a suspended sentence, whereupon the attorney for the defendant requested the Judge to instruct the Jury that it was not within their power nor within his power to grant the defendant a suspended sentence and that it was necessary they should assess the punishment.
“By the Court: Let the record show this last request was made by the attorney for the defendant, after the Jury went back to the jury room and not in the presence of the jury and will be overruled.
“By Mr. Carter: Exception.
“Keporter’s note: The jury returned to the court room at 4:28 p. m. in charge of the bailiff with their verdict. The clerk reads the verdict, and before the jury was discharged from the case, the court made the following remarks:
“By the Court: I didn’t know at the time I talked to you a while ago and didn’t know it until later, I can’t suspend the sentence, because this boy has been convicted' before. I don’t want you to think I am violating my trust, but I can’t do. it where he has been convicted before. The statute says if a man has a previous good reputation. If he has a clean record, I can suspend the sentence, but where he has been convicted before, I have no discretion in the matter.”

The verdict rendered by the jury was as follows (omitting the caption) :

“We the jury duly empanelled and sworn in the above entitled case, do upon our oaths, find from the law and the evidence the above named defendant, guilty as charged in said information and assess- his punishment at two years in State Penitentiary. We the jury recommed that the sentence be suspended.”

It is contended by defendant that the refusal of the court to recall the jury before they had rendered their verdict, and instruct them that under the law he did not have the authority to suspend the sentence, was prejudicial to the substantial rights of the defendant, and constituted reversible error. He contends, that the jury would not have rendered a verdict of guilty if they had been so instructed.

We have carefully examined the authorities cited by defendant to sustain this contention: People v. Sherwood, 271 N. Y. 427, 3 N.E. 2d 581; Hackett v. People, 8 Colo. 390, 8 P. 574; McBean v. State, 83 Wis. 206, 53 N.W. 497; Randolph v. Lampkin, 90 Ky. 551, 14 S.W. 538, 10 L.R.A. 88; Crawford v. State, 2 Yerg., Tenn., 60, 24 Am. Dec. 467; 23 C.J.S., Criminal Law, p. 870, § 1291; State v. Matthews, 191 N.C. 378, 131 S.E. 743; 16 C.J. 1026.

The state relies upon one case, that of State v. Ruzzo, 63 R.I. 138, 7 A. 2d 693.

We have also examined many other cases touching upon this question, and have eome to the conclusion that not only the majority of the decisions sustain the contention of the defendant, but they are based upon the soundest principles.

Oklahoma Session Laws 1937, page 20, sec. 1, 22 O. S.A. 1941 § 991, provides:

“Whenever any person shall be convicted in any court of record for any crime other than murder, manslaughter or arson, the Judge trying said cause may, after sentence, suspend said judgment and sentence, and allow said person so convicted to' be released upon his own recognizance. Provided, that no such person shall be so released, who has not, prior thereto, borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States.”

The record and brief of plaintiff in error reveal that the defendant had previously been convicted four times; that he had been tried in the district court of Bryan county on a charge of burglary in the second degree before the same judge who was trying this case, convicted and sentenced to the penitentiary.

Under the statute above quoted, the court had absolutely no authority under the law to suspend any sentence given the defendant who-, prior thereto-, had been “convicted of any crime in any state or territory of the United States.”

When this fact was called to the attention o-f the, court by the attorney for the defendant, he should have recalled the jury and informed- them of the statute. He could have done this at the request of the defendant, who would thereby have waived any right he had of informing the jury of his prior conviction. It can hardly be argued that the jury in the instant case came to- the conclusion, after being told by the court that they could recommend in their verdict that the defendant be given a suspended sentence, that the court would not only give consideration thereto-, but that in all probability the recommendation would be carried out. Yet under the law he ha,d no- right to consider the same or to suspend the sentence. It is true that the court said he would not promise them anything except that he would go- into the case and decide whether or not the defendant was entitled to a suspended sentence. Yet the very fact that he told them they co-uld make such recommendation, when as a matter of law he had no- discretion in the matter, was, in our opinion, prejudicial to the rights of the defendant. A short time thereafter the jury returned into- court and the co-urt informed them that he could not suspend the sentence, “because this boy has been convicted before.” However, he did not permit the jury to return to their jury room for further consideration after he had given them this information, but at that time accepted their verdict. The record does not disclose that the jury was even polled after this statement was made to- them. Under circumstances such as this, it has been almost the unanimous opinion of tlie courts that such error is so prejudicial to the rights of a defendant that when it occurs, the case will be reversed for a new trial.

In 16 C.J. 1026, § 2459, it is stated:

“It is error to instruct the jury that they can recommend the prisoner to the mercy of the court, where the law gives the judge no discretion in passing sentence upon a convicted prisoner.” See, also, 23 C.J.S., Criminal Law, p. 870, § 1291.

In the case of Hackett. v. People (Colorado), supra, it is said:

“Plaintiff in error was tried and convicted upon indictment for murder. He is now, and has been for upwards of five and one-half years last past, in the penitentiary under a sentence of imprisonment for life. Several errors are. assigned, but we deem it unnecessary to- consider any, save two. The jury, after deliberating for a considerable length of time, and being brought into- court at their own request, propounded the following question: ‘Can the jury indorse on the verdict a recommendation for mercy?’ To which question the court answered by a written instruction that they could indorse such recommendation upon their verdict should they desire so to- do-. Thereupon they retired, and soon after returned a verdict of guilty in manner and form as charged in the indictment. They also embraced in such verdict the following: ‘We, the jury, recommend the defendant to- the mercy of the court.’ Thus it appears that some of the jurors were opposed to- a conviction for the grade of crime finally found in their ■verdict, and that they only consented thereto upon condition that the recommendation for mercy be incorporated. They must have been led to suppose, from the court’s answer to- their question, that this might have weight in mitigating the severity of the sentence to be pronounced. Any other explanation of the proceedings would be abs-urd; and it must be assumed that without such belief the verdict, as returned, would not have been agreed upon. Yet, as. the law then stood, the court was powerless to. heed their suggestion. Upon a verdict in this form, it. was his duty to pronounce a sentence of imprisonment for life. The law fixed the penalty, and he could not subtract a single day. He must either set the verdict aside and order a new trial, or enter the judgment fixed by the statute. The instruction mentioned was, therefore, clearly misleading, and, under the circumstances, a fatal error.”

In the case of State v. Matthews (North Carolina), supra [191 N.C. 378, 131 S.E. 746], it is said:

“After several hours of deliberation upon the evidence, under the instructions of the court as to the law applicable to the facts as they might find them to be, the jury had not agreed upon a verdict. Within a short time after receiving the instruction that they could return a verdict with a recommendation of mercy they returned the verdict upon which the judgment was rendered. It is manifest that this verdict was rendered pursuant to the instruction of his honor. The recommendation of mercy was not voluntary on the part of the jury. * * *
“We must hold that it is error for the court to instruct the jury either in the general charge, or in response to an inquiry made by the jury, that they may return a verdict with recommendation of mercy, or with other words having reference, necessarily, to. the judgment to be rendered by the court, and that, where under the law there is. no discretion vested in the court, as to the kind or amount of punishment which may be imposed by the judgment upon the defendant, the error is prejudicial to the defendant. If the jury returns a verdict voluntarily, including the words with recommendation for mercy, or words of similar import, these words may be disregarded as surplusage, if it clearly and definitely appears that the jury, upon a consideration of all of the evidence, and under the instructions of the court, has agreed upon the verdict as returned by them.”

In People v. Sherwood, 271 N.Y. 427, 3 N.E. 2d 581, 583. the court says:

“Now we come to another and even more serious error. After the jury had deliberated on its verdict for five hours, it came into court and the following incident occurred :
“ ‘The Court: Gentlemen, I understand you want an answer to the question, “Does the law permit a recommendation of mercy?”
“ ‘The foreman: That’s right.
“ ‘The Court: Of course, the law does permit a recommendation of mercy; does that answer your question?
“ ‘The Foreman: Yes.’
“The jury retired. Six minutes later it returned. The record reads as follows:
“ ‘The Clerk: Gentlemen of the jury, have you agreed upon a verdict?
“ ‘The Foreman: We have.
“ ‘The Clerk: How do you find?
“ ‘The Foreman: Guilty of murder in the first degree and recommend mercy.
“ ‘The Clerk: You say you find the defendant guilty of murder in the first degree and you recommend mercy?’
“In the practical administration of justice in civil cases, courts necessarily assume that jurors live up to their oaths and that they are capable of and do perform' extraordinary intellectual feats. Cf. Akely v. Kinnicutt, 238 N.Y. 466, 475, 144 N.E. 682; Crandall v. A. B. Leach & Co., Inc., 222 App. Div. 292, 225 N.Y.S. 649, 927. Justice, rough perhaps but approximate, is avt ought by the assumption. When, hoAvever, the stake is the life of a person conceivably innocent, courts may make that assumption only with a caution thrice guarded. We do not know how matters stood after five hours in the jury room. Where upon the evidence there may well have been doubt, we may assume that doubt, in some degree at least, existed. The jurors had been told by the district attorney in his summation^ that a grace of mercy by commutation rested with the Governor. That information, if it was to be given at all, should have been given by the court with appropriate explanation. It is difficult to conceive of any case, however, where it would be either necessary or proper to instruct a jury on that point. Coming as it did, it amounted to nothing less than an invitation to possible doubting minds and uneasy consciences, to solve their doubts against the defendant, and to salve their consciences with the thought that, if they were wrong executive grace might cure the error. When, after long hours, the jury came into court, it may be that there was a desire to be given assurance by the court of what the district attorney had said. Or it may be that assurance was desired of a common popular impression that a jury may recommend mercy and thereby perhaps minimize and soften the penalty which the judge would otherwise impose. The impression is a mistaken one. Under the law of this state the penalty for murder in the first degree is death. No power or discretion is vested in any judge or court to vary it. Whatever the motive of the jury’s request may have been, the answer of the court removed all doubt and hesitation. The answer was wrong. The daw’ expresses neither permission nor denial. Probably the law would regard an uninvited or voluntary recommendation as surplusage. We need not say. Here the jury was in effect invited to go beyond its province, and was erroneously told that the law permitted it to do so. The error almost certainly was. prejudicial to the defendant. That being so, we need spend little time in an examination of cases in other jurisdictions which have dealt with more or less similar situations. In general agreement with the conclusion here reached are State v. Kernan, 154 Iowa, 672, 135 N.W. 362, 40 L.R.A., N.S., 239; State v. Kiefer, 16 S.D. 180, 91 N.W. 1117, 1 Ann. Cas. 268; Hackett v. People, 8 Colo. 390, 8 P. 574. Cf. also People v. Santini, 221 App. Div. 139, 222 N.Y.S. 683, affirmed 246 N.Y. 612, 159 N.E. 672; contra, State v. Gill, 14 S.C. 410.”

In the case of State v. Ruzzo (Rhode Island), supra [63 R.I, 338, 7 A.2d 694], the only case cited by the state, the defendant was convicted of operating an automobile upon a public highway so as to endanger life, resulting in the death of his companion. The court said: “The verdict of guilty, * * * is supported by the overwhelming weight of the evidence.”

While the jury ivas considering the case, they came into the court and asked the trial judge if it was “permissible, * * *' in case the defendant is found guilty, to recommend leniency.” The court informed them that they could make such recommendation if they desired.

The defendant excepted to the instruction, but later Avaived it, and then requested the court to further instruct the jury that “the judge presiding at the trial can ignore recommendations of leniency if he sees fit.” The court refused to so instruct the jury, and the defendant excepted.

The court said:

“There is no statute in this state which authorizes the jury to recommend a defendant to. mercy. In the absence of statute, the overwhelming weight of authority holds that, it is not a matter of right for the jury to. accompany their verdict with a recommendation of mercy. If such a recommendation is made by them on their own motion, it is treated as mere surplusage and of no. legal effect. State v. Doucet, 177 La. 63, 147 So. 500, 87 A.L.R. 1356; State v. Bradley, 6 La. Ann. 554. Although the recommendation does not invalidate the verdict, it is. looked upon Avith disfavor in a number of jurisdictions. People v. Lee, 17 Cal. 76; People v. Caiazza, 61 Cal. App. 505, 215 P. 80; People v. Keylon, 122 Cal. App. 408, 10 P. 2d 86; State v. Hancock, 151 N.C. 699, 66 S.E. 137; State v. Matthews, 191 N.C. 378, 131 S.E. 743; State v. Bennett, 40 S.C. 308, 18 S.E. 886; Estes v. State, 35 Okla. Cr. 335, 250 P. 809; State v. Arata, 56 Wash. 185, 105 P. 227, 21 Ann. Cas. 242; Commonwealth v. Zec, 262 Pa. 251, 105 A. 279. It has been held that the court may refuse to receive a verdict with a recommendation to mercy— State v. Potter, 15 Kan. 302, 314; State v. McKay, 150 N.C. 813, 63 S.E. 1059 — or it may direct the verdict to be entered without the recommendation. People v. Lee, supra.
“Difficulty arises when the jury, while considering the evidence and before reaching a verdict, ask the court whether they may recommend a defendant to mercy. In this state a jury discharge their full duty by fairly determining the guilt or the innocence of a defendant according to the evidence. The punishment that may follow a verdict of guilty is no concern of theirs. The grave responsibility of determining the nature and extent of the sentence rests solely with the court. Therefore, the jury are not entitled as of right to be advised in the matter of a recommendation to mercy.
“Whether a trial justice will answer a jury’s inquiry respecting a recommendation to mercy rests entirely with him. He may properly decline to answer the question, since the jury should confine themselves strictly to a consideration of the evidence. They should not divert their ¡attention from the only point for them to determine, which is the guilt or the innocence of the defendant, by injecting into their deliberations a consideration of what sentence the court may impose following a verdict of guilty. State v. Bell, 206 Iowa, 816, 221 N. W. 521; State v. Lunsford, 163 Wash. 199, 300 P. 529; State v. Vasquez, 16 Nev. 42; Russell v. State, 57 Ga. 420; State v. Overton, 85 N.J.L. 287, 88 A. 689.
“In the event that the trial justice chooses to answer the jury’s question, he should first closely examine the form of question before answering, lest the question and answer, when considered together, lead the jury to believe that, because of their recommendation to mercy, the punishment of the defendant will be reduced. McBean v. State, 83 Wis. 206, 53 N.W. 497. If the question is unobjectionable in form, then the answer of the trial justice should be expressed in language which will not permit the jury to believe that their recommendation to mercy will have any binding effect on the judgment of the court In the matter of sentence. State v. Kiefer, 16 S. D. 180, 91 N.W. 1117, 1 Ann. Cas. 268; State v. Kernan, 154 Iowa 672, 135 N.W. 362, 40 L.R.A., N.S., 239; State v. Doucet, supra; Territory v. Griego, 8 N.M. 133, 42 P. 81. Such a result, whether due to the form of the question or to the answer of the trial justice, constitutes an unauthorized interference by the court with the deliberations of the jury.
“The instant case is of the first impression in this state. Furthermore, no authority has been cited to us, nor have we found any, which deals with the precise question under consideration.”

The court then reviews authorities cited, and says :

“Our examination of the authorities convinces us that no right of a defendant in a criminal case is violated if a trial justice refuses to answer the jury’s inquiry regarding a recommendation to mercy, but that serious questions may arise if he elects to answer such inquiry. The motive that prompts a jury to- ask whether they may recommend a defendant to mercy is rarely known and ordinarily rests in conjecture. Except for some unusual case where the surrounding circumstances clearly admit of sympathetic considerations from a humane viewpoint, an answer by the trial justice without explanation as to the legal effect of a recommendation to mercy, even though otherwise proper, may leave a doubt as to whether such answer exerted any influence on the jury or any member thereof in finding a verdict of guilty. After careful consideration, we are of the opinion that if, in response to a request from the jury, a trial justice sees fit to tell them that they may recommend a defendant to mercy, he should inform them in plain language that such recommendation is without binding effect on the court in the matter of sentence. In view of this conclusion, we find that in the instant case the trial justice was in error in refusing to instruct the jury as requested by the defendant.”

The court then decides that the defendant was not prejudiced under the special circumstances of this case, arguing, as does the state in the instant case, that the defendant was attempting to speculate that the jury might have been influenced in finding him guilty by reason of the remarks of the court. Yet, the court assumes that the jury had possibly agreed upon his guilt before they added to their verdict a recommendation of mercy.

The conclusion reached by the court does not appeal to us, especially in view of the conclusion of the court “that in the instant case the trial justice was in error in refusing to instruct the juiy as requested by the defendant.”

The record in this case reveals: that when the jury returned to the court room, counsel, for defendant orally requested that if defendant were found guilty, the jury assess the punishment. The court so instructed, and the jury assessed the punishment in its verdict at two- years in the State Penitentiary. This was in conformity with the Oklahoma Statutes. Sec. 3107, O.S. 1931, 22 O.S.A. 1941 § 926, as construed by this court. See the following cases: Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140; Craig v. State, 31 Okla. Cr. 19, 236 P. 909; Crouch v. State, 23 Okla. Cr. 325, 214 P. 747; Wakefield v. State, 65 Okla. Cr. 321, 89 P. 2d 330; Hutchman v. State, 61 Okla. Cr. 117, 66 P. 2d 99; Snider v. State, 71 Okla. Cr. 98, 108 P. 2d 552; Dunn v. State, 60 Okla. Cr. 201, 63 P. 2d 772.

For the reasons above stated, we are of the opinion that the judgment and sentence of the district court of Bryan county should be reversed and remanded. It is so ordered.

JONES, P. J., and DOYLE, J., concur.


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    ROY WHEATLEY v. STATE.
    No. A-10174.
    June 30, 1943.
    (139 P. 2d 809.)
    Glen O. Morris, ,of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Roy Wheatley, was charged in the court of common pleas of Oklahoma county with the unlawful transportation of intoxicating liquor, a jury Avas Avaived, defendant was tried to the court, found guilty and sentenced to serve 30 days imprisonment in the county jail and pay a fine of $50.

The evidence discloses that certain policemen of Oklahoma county, armed with a search warrant, made a search' of the car which the defendant was driving on North Broadway in Oklahoma City and found one pint of whisky and one quart of gin under the seat. The defendant claimed that the whisky belonged to his brother and that he did not know it was in the car.

The sole issue raised is the contention of defendant that the court erred in allowing the county attorney to inquire of the defendant on cross-examination as to his convictions for liquor violations in the police court. Over the objection'of counsel for defendant, the defendant testi-' fied' on cross-examination that he had been convicted in police court of violations of the liquor laws ten or fifteen times.

This contention of defendant has been decided adversely to him in several cases. James v. State, 64 Okla. Cr. 174, 78 P. 2d 708; Strickland v. State, 46 Okla. Cr. 190, 284 P. 651, and cases therein cited.

In all of these cases a distinction is drawn as to violations of municipal ordinances which are likewise offenses under the state law, and for petty offenses, such as running stop signs, over parking and similar offenses which are not made crimes by state law. Any conviction for a violation of a municipal ordinance, which is likewise an offense against the state law, may be shown for the purpose of discrediting the witness, while the ordinary police court conviction, which does not involve a violation of some state law, may not be so shown. It is the taint of conviction for crime which affects the credibility of the witness and not the court in which the conviction was had.

Since the cross-examination of the defendant was addressed solely to liquor law violations in the municipal court which likewise were violations of the state law, there was no error in the admission of this evidence.

Since a jury was waived, the judgment of the court upon a disputed question of fact is entitled to the same weight as the findings of a jury.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


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    LEE GLENN v. STATE.
    No. A-10188.
    June 30, 1943.
    (139 P. 2d 611.)

      Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Lee Glenn, was charged in the court of common pleas of Tulsa county with the ciime of unlawful possession of intoxicating liquor, to wit, nine pints of assorted liquor, was tried, convicted and sentenced to pay a fine of $250 and serve three months in the county jail. From this judgment and sentence, he has appealed.

Three assignments of error are relied upon for reversal of this case:

First, that the judgment and sentence is contrary to the law and the evidence.

Second, that the court erred in admitting irrelevant, incompetent and immaterial evidence.

Third, that the judgment and sentence is excessive.

This case was the outgrowth of the execution of a search warrant by deputy sheriffs of Tulsa county on a residence located at 2901 East Second street, in the city of Tulsa, on the 16th day of August, 1941. The search occurred between 11 and 12 o’clock at night, and the officers seized three pints of tax-paid whisky in the house, and six pints in the grass near the house, and on the premises covered by the search warrant. No question is raised as to the validity of the search warrant.

The defense was that the defendant did not live at the premises, that his sister resided there, and that he was only there temporarily at the time the officers made the search, and that he was not in possession of the whisky found and did not know that it was there.

It is unnecessary to quote at length from the evidence. It may be said that there was a conflict therein. Sufficient facts and circumstances were in evidence to justify the jury in reaching the conclusion tl at the defendant was not only in possession of the whisky as charged, but that he was and had been for a long time prior to the time charged in the information selling whisky from this place. The officers testified that at the time they entered the premises defendant was present, and his mother was also there. His sister came to the premises while the search was being conducted. Four Indians, who were not members of the household, were also present, and while the officers testified that they did not see them drinking, one officer testified that some of them were intoxicated.' A part of the whisky was found in the bed where the defendant was lying at the time they entered. The mother of defendant stated to the officers in the presence of the defendant:

“A. Well, she said she was going to go home, that she was getting tired of that kind of business, and she told Glenn (the defendant) that she had told him to get that out of there.”

The officers also testified that while they were conducting the search two young girls came to the house and asked to buy a pint of gin. One of the officers informed them that they would have to ask the man of the house, indicating the defendant, who was present. When the girls asked to buy the pint of gin, he shook his head and didn’t say anything, and they said, “We want some gin,” and insisted on buying some, 'and finally he told them he didn’t have any, and one of the girls said, “Well we bought it before,” and she spoke to the defendant and said, “Hell, we bought it plenty of times, — bought it here before.” This statement was not binding on the defendant, but the evidence Avas admissible for the purpose of laying a foundation to afterwards ask witnesses as to the reputation of the premises; also- for the purpose o-f establishing prior possession of intoxicating liquor.

While the search of the place was in progress, the sister of defendant, Nellie Boberts, came to the premises and one of the officers testified:

“A. She made the statement in the presence of the other officer and the defendant there, that she was selling whisky and she was going to keep on selling whisky.”

One of the officers also- testified that only a short time before this search was conducted, he was keeping a Avatch on these premises, and that he saAV a black car drive up and saw the defendant come out of the house and hand a package through the window of the car; that the package Avas wrapped in brown paper such as that, in Avhich Arkisky is usually Avrapped and as part o-f the Avhisky which was found at the time of the search was wrapped. The. witness followed the car, and the occupant threw a pint of whisky from the -car window, and it was recovered by the officer. This evidence was clearly admissible. We have often' held that where one is charged Avith the unlawful possession of intoxicating liquor, prior possession or sales by defendant, where Avithin a reasonable time, are admissible.

The court in several instances refused to permit the introduction of evidence of this character. We think the state was entitled to introduce this evidence.

Defendant testified that he did not live at the premises when the search was made and the liquor was found, and produced other witnesses who testified that he was living with his wife at another address. One may be in possession of liquor and have control of the same though it may not be on premises owned or occupied by him. As heretofore stated, there were many facts and circumstances in this case which would justify the jury in coming to the conclusion that defendant wasi in the possession of the liquor, and that he had the same for the purpose of sale.

Defendant, testifying in his own behalf, admitted that he had lived at the identical premises two years prior to the search, and that he had been engaged in the wholesale and retail liquor business from these premises, and that he had been convicted and served sentences during that time. His testimony that he did not have possession or control of the liquor was evidently not believed by the jury. Under the law as applied to the evidence, we would not be warranted in setting aside the verdict of the jury in this case. There was evidence which showed that the telephone at the place where the liquor was found was in the name of defendant. He claimed that this was by reason of his former residing at this place, but by his own testimony this "was two years prior to the time the liquor was found. There were other facts and circumstances which justified the court in coming to the conclusion that the place was being used as a place of public resort, other than those above mentioned, which made admissible the evidence of the officers that the place bore a bad reputation as being a place where intoxicating liquor was being sold in violation of the prohibition laws of this state.

Defendant complains that the judgment and sentence is excessive in this case, and cites the case of Harmon v. State, 75 Okla. Cr. 37, 128 P. 2d 237. The facts in that case are not applicable to- the facts here. The record here reveals that thisi defendant was a persistent and professional bootlegger, and violator of the prohibitory-liquor laws. He had been convicted and served sentences in numerous cases in the city, state and federal courts. At the time of the trial of the instant case he was out on probation from the federal court at Fort Smith, Ark., where he was charged with conspiracy in connection with the violation of the federal liquor laws. The jury evidently did not believe that he had quit, or that he intended to do so. This is not like a case where one is a first offender.

We see no reason for holding that the judgment and sentence is excessive; and for the reasons stated, the judgment and sentence of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., and DOYLE, J., concur.


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    MRS. EPHE DAVIS v. STATE.
    No. A-10154.
    June 30, 1943.
    (139 P. 2d 610.)

      ffm, T. Powell, of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal from a conviction in the district court of Cotton county for the crime of possession of intoxicating liquor, second offense, wherein the defendant, Mrs. Ephe Davis, was sentenced to sixty days in the county jail and to pay a fine of $50.

The search warrant, which was the basis for the authority by which the officers seized certain liquor at the defendant’s home, described the premises to be searched as follows: “E½ of 40 acres Quarter of Section First ye]]ow three room house west of the railroad track No. 26 Township 2 S, Range II W. I. M. or lots Nos. Block No.-in the--Addition to the City of Cotton County, Oklahoma.”

A motion to suppress the evidence based on the insufficiency of the description in the search warrant and for the further reason that the affidavit to obtain the search warrant was not sworn to, as required by law, was overruled with exception saved by the defendant.

It is a well settled rule that a search warrant must describe the place to be searched with such definiteness that the officer to whom it is directed may make it ascertainable from examination of the warrant, leaving no discretion as to the place to be searched. Cook v. State, 40 Okla. Cr. 219, 267 P. 1045; Linderman v. State, 43 Okla. Cr. 166, 277 P. 602; State v. Linthicum, 67 Okla. Cr. 435, 94 P. 2d 857.

It does not require an extended discussion to point out that tbe description above set forth, is confusing. It is impossible for this court to say just what premises are attempted to be described. We have read and reread this description and we are unable 'to state just what premises the officers were directed to search. We do not know whether it is section “First” or section No. 26, or whether the No. 26 refers to railroad track No. 26. This instrument is carelessly prepared and we cannot approve it. It is so entirely confusing that we are of the opinion the motion to suppress the evidence, because of a mis-description of the premises to be searched, .should have been sustained.

With this view it becomes unnecessary to discuss the other assignments of error.

The judgment of the district court of Cotton county is reversed and remanded with instructions to dismiss.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


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    W. C. SHEPHERD v. STATE.
    No. A-10163.
    July 7, 1943.
    (139 P. 2d 605.)

      Tellegen & Miskovsky, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. C. Shepherd, was charged in the district court of Beckham county with the crime of robbery with firearms, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed.

There is but one point involved in this appeal. In the closing argument of the county attorney, the record discloses that he made the following statement:

“Now, where do- they get this frame-up? Where did they get Bill Shepherd, if this wasi a frame-up? Where do they get the frame-up,— if this was a frame up Bill Shepherd would have said so.”

When this statement was made by the county attorney counsel for the defendant objected and excepted to the remarks and moved for a mistrial for the reason that the county attorney, in making said statement, was commenting upon the fact that the defendant did not testify. The motion for mistrial was overruled and exception saved by the defendant.

Section 3068, O.S. 1931, 22 O.S. 1941 § 701, reads:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court, or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

In contruing this statute we have repeatedly held that it is reversible error for a prosecutor to> refer either directly or indirectly to> the fact that defendant did not testify. Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Schrader v. State, 40 Okla. Cr. 261, 268 P. 325; Wells v. State, 29 Okla. Cr. 11, 231 P. 1087; Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240; Thoreson v. State, 69 Okla. Cr. 128, 100 P. 2d 896; Zedda v. State, 30 Okla. Cr. 348, 235 P. 939; Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857.

In the case of Brown v. State, 16 Okla. Cr. 155, 181 P. 318, 319, it is stated:

“This statutory provision is mandatory, and when the defendant does not elect to testify as a witness in his own behalf, and the prosecuting attorney in his argument to the. jury comments on the failure of the defendant to testify as a witness, such comments constitute reversible error. Wilson v. Territory, 9 Okla. 331, 60 P. 112; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791.
“In the case of Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160, it is said:
“ ‘The statute is in accordance with the constitutional guaranty that “no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.’ ”

In Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791, 792, it is said:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to' enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

There is no other construction which can be placed on the statement of the county attorney, in view of the record, than that such statement was a direct comment on the fact that the defendant did not choose to become a witness. It is regrettable that the prosecutor became so overzealous in presenting the state’s cause that he overstepped legal bounds and made this statement, thereby mailing it our mandatory duty under the statute and decisions above quoted to reverse this case for a new trial.

For the reasons hereinabove stated, the judgment of the district court of Beckham county is reversed and remanded for a new trial.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.