text:
    C. E. STOUT v. STATE.
    No. A-4339.
    Opinion Filed March 29, 1924.
    (224 Pac. 375.)
    (Syllabus.)
    1. Indictment and Information — Statutory Exceptions Made Matters of Defense Need not be Negatived. Where a penal statute expressly provides that certain exceptions to or exemptions from its operation shall be matters of defense, such exceptions need not be negatived in the information.
    2. Constitutional Law — Statutory Change in Rules of Evidence or Procedure — Vested Rights of Accused. The Legislature may at will alter any rule of evidence or mode of procedure, so long as such statutory rule of evidence or procedure does not deprive the accused of some constitutional or vested right.
    3. Poisons — Physician’s Liability for Violation of Narcotic Drug Act. On<e charged with a violation of the narcotic drug act will not be immune from prosecution because he is a physician, and entitled as such to prescribe the use of narcotic drugs in the quantity and manner only prescribed by the statute.
    Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
    C. E. Stout was convicted of the illegal transportation of narcotic drugs, and he appeals.
    Affirmed.

      Victor A. Sniggs, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

C. E. Stont, plaintiff in error, here referred to as the defendant, was charged with the crime of transporting narcotic drugs, from a place unknown to a designated place in Oklahoma City. At the trial, by a verdict of the jury, he was found guilty as charged, and his punishment fixed at confinement in the penitentiary for a term of three years and a fine of $1,000. From the judgment on this verdict, he appeals.

The testimony discloses that a brother of the prosecuting witness was a narcotic drug addict. The witness gave to his brother $25 in currency, the bills having been previously marked so that they could be identified. The prosecuting witness, along with two officers, watched the brother who was addicted to the use of drugs, and one of them heard him telephone to the defendant, indicating that they were making an appointment to meet at a certain place in Oklahoma City. Pursuant to the plans so made the defendant drove to the appointed place, where the narcotic addict gave the marked bills to the defendant. About 30 minutes later defendant and this addict met at another place in Oklahoma City, where the defendant was apprehended and arrested by one of the officers, and found in the possession of the marked bills and in possession of a quantity of narcotic drugs. At this place the officers saw the defendant deliver to the narcotic addict 31 grains of morphine. The officers’ testimony relating to the delivery of the drug was corroborated by the addict himself.

Defendant denied that he transported the particular drugs mentioned, or any other drugs on that day or at any time.

This prosecution was predicated upon section 8887, Comp. Stat. 1921, a complex statute containing over 1,000 words, and containing several negative exceptions relating to physicians, pharmacists, dentists, and others. One of the provisions of the statute states that it shall not be necessary for the state to negative any of the exceptions in the information.

In this appeal the judgment of the trial court is attacked from several angles, all of which, however, relate to the defendant’s claim that under the provisions of this narcotic drug law a physician is authorized to transport narcotics, and for that reason defendant claims that the information and the proof supporting it were insufficient.

It has been held by this and other courts that the Legislature may at will alter any rule of evidence or mode, of procedure so long as such statutory rule of evidence or procedure does not deprive the accused of some constitutional or vested right. The shifting of the burden of proof relating to a negative defense may be sustained. Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708; Ex parte Bryson, 21 Okla. Cr. 152, 205 Pac. 190; Ex rel. David Woronoff, 222 N. Y. 456, 119 N. E. 102, 4 A. L. R. 463, 10 R. C. L. 901; Wigmore on Evidence, §§ 8 and 1354 et seq.

This statute was designed to prohibit the unauthorized sale, introduction, and transportation of narcotic drugs; it applies to physicians as well as others, excepting only in cases where the use of narcotic drugs is necessary in the treatment of disease, and then only in such quantities and in such manner as designated in the statute. The fact that the accused is a physician will not make him immune from punishment under the penal provisions of the statute in cases where he knowingly participated in the unauthorized traffic in narcotics.

This statute is within the police power of the state, designed as it is to discourage and suppress both the open and the insidious use of narcotics — a growing evil which tends to undermine the health and morals of individuals and which has become a serious menace to the welfare of the state. To curb the cupidity of depraved persons, including physicians, who traffic in the lives and morals of others, the state has prescribed severe penalties, and the grave consequences of this evil justify the drastic penalties found in the statute.

The judgment in this case may seem severe, but one of purposes in punishing lawbreakers is to deter others from committing the same offense. With that purpose in mind this court will refuse to exercise its right to mitigate the punishment assessed in this case.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ED KARNS v. STATE.
    No. A-4146.
    Opinion Filed March 31, 1924.
    (224 Pac. 373.)
    Appeal from District Court, Logan County; C. C. Smith, Judge.
    Ed. Karns was convicted of the unlawful possession of a whisky still and sentenced to be imprisoned in the state penitentiary for a period of one year and to pay a fine of $100, and he appeals.
    Eeversed and remanded, with directions to dismiss.
    Lewis E. Morris, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the district court of Logan county on the 28th day of March, 1923, wherein the plaintiff in error was convicted of the crime of unlawful possession of a whisky still and his punishment fixed as above stated. An appeal was taken to this court by filing herein on the 15th day of September, 1923, a petition in error with case-made attached.

This prosecution is based on chapter 1, Session Laws of Oklahoma 1923, which said chapter has heretofore been held to be unconstitutional and void in the opinion of this court in the case of Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708. It follows from what has been said in the case of Ex parte Smith that the judgment and sentence in this. case is null and void. Judgment is therefore reversed and the cause remanded to the district court of Logan county, with instructions to dismiss the prosecution.


author: BESSEY, J.

text:
    W. H. DYER v. STATE.
    No. A-4137.
    Opinion Filed March 31, 1924.
    (224 Pac. 372.)
    Appeal from County Court, Bryan County; John Finney, Judge.
    W. H. Dyer was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed, and conviction set aside.
    D. S. MacDonald and Warren B. Phillips, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from the county court of Bryan county, wherein this plaintiff in error was convicted of the unlawful possession of intoxicating liquor and his punishment assessed at a fine of $250 and 30 days in jail.

Where peace officers seize a quantity of whisky in different containers, together with some empty vessels, hidden in a toilet room of a hotel, and in an adjacent entry room containing bags of feed, stoves, boxes, and junk, through which room hotel guests and others pass to and fro to' the toilet, such seizure is not of itself sufficient proof to support a conviction of illegal possession against the owner of the hotel, who lives there with his family, but was during that day and at other times before such seizure actively engaged in another business at another place.

That being the situation in this case, the judgment of conviction should be set aside, and it is so ordered.

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


text:
    BERT MOORE v. STATE.
    No. A-4673.
    Opinion Piled March 31, 1924.
    (224 Pac. 372.)
    Appeal from District Court, Canadian County; James L. Phelps, Judge.
    Bert Moore was convicted of the unlawful possession of mash fit for distillation to intoxicating liquor, and he appeals.
    Reversed and remanded, with directions to dismiss.
    Lewis R. Morris and Orban C. Patterson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the district court of Canadian county on the 5th day of May, 1923, wherein the plaintiff in error, Bert Moore, was convicted of the crime of unlawful possession of mash fit for distillation, and sentenced to serve five years in the penitentiary, and to pay a fine of $2,500. An appeal from such judgment was taken to this court by filing herein on the 9th day of May, 1923, a duly certified transcript of the record with petition in error attached.

This prosecution is based on chapter 1, Session Laws of Oklahoma 1923, which said chapter has heretofore been held to be unconstitutional and void in the opinion of this court in the case of Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708. It follows from what has been said in the case of Ex parte Smith that the judgment and sentence in this case are null and void.

Judgment is therefore reversed, and the cause remanded to the district court of Canadian county, with instructions to dismiss the prosecution.


author: DOYLE, J.

text:
      W. O. KING v. STATE.
    No. A-4506.
    Opinion Filed April 2, 1924.
    (224 Pac. 376.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. Evidence, upon a trial of an information charging that the defendant did have possession of intoxicating liquors with the intention of selling the same, considered, and held sufficient to sustain a conviction.
    Appeal from County Court, Roger Mills County; E. E. Tracy, Judge.
    W. 0. King was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.
    W. H. Mouser, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on a verdict of a jury finding the defendant, "W. 0. Kang, guilty on a eharge that he did have in his possession four gallons of whisky with the unlawful intent to sell the same, the punishment having been assessed at a fine of $300 and confinement for 30 days in the county jail.

The errors assigned are that the verdict is not sustained by sufficient evidence; that the court erred in rejecting certain testimony and in not granting a new trial on the ground of error in the instructions given.

The undisputed facts as shown by the testimony of the sheriff and undersheriff are that in executing a search warrant with some federal enforcement officers they found in defendant’s house about four gallons of whisky in one-half gallon fruit jar containers.

Testifying as a witness in his own behalf the defendant stated .-

“I live three miles and one-half west of Cheyenne, the officers found four gallons of whisky at my home, I found this whisky in some weeds near the Mammoth bridge, about 100 yards from the house; I took it to the house; I just drank a little out of one jar; I had no intention of selling it or giving it away or otherwise furnishing it to any other person.”

A careful reading of the record convinces us that no error prejudicial to the substantial rights of the defendant was committed on the trial. No objection was made or exception taken to the instructions given by the court. It was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    W. F. BEASLEY v. STATE.
    No. A-4584.
    Opinion Filed April 2, 1924.
    (224 Pac. 376.)
    (Syllabus.)
    Arrest — Clerk of County Court Without Power to Issue Warrant of Arrest. The clerk of a county court is without power to issue a warrant of arrest for a defendant based upon an information filed in such court in the absence of the county judge; and, where a motion is made in apt time to set aside the warrant so issued, it should be sustained.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge;
    W. F. Beasley was convicted of a violation of the- prohibitory liquor law, and he appeals.
    Reversed and remanded.
    H. A. Stanley, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W: Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment' of conviction rendered upon a verdict finding appellant guilty on a charge that he did have in his possession one-half gallon of whisky with unlawful intent to sell the same, and resulting sentence of 30 days’ confinement in the county jail and a fine of $50.

The Attorney General has filed a confession of error which we adopt as the opinion of the court. It is as follows:

“The warrant of arrest upon the information filed appears to have been issued by the court clerk of Carter county, and when the case was called for trial plaintiff in error, through his attorney, filed proper motion to quash the warrant, which motion was by the court overruled. Plaintiff in error then objected to the introduction of any testimony, for the reason that proper jurisdiction had not been acquired by the issuance and service of a proper warrant of arrest, which motion was also by the court overruled. This court has repeatedly held that the issuance of a warrant in a misdemeanor ease was a judicial act, and could only be performed by the court or judge thereof. Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376; Bonham v. State, 6 Okla. Cr. 227, 118 Pac. 159; Fullingim v. State, 7 Okla. Cr. 333, 123 Pac. 558. Under the rule announced in the cases above cited, the plaintiff in error was not properly before the court, and no. jurisdiction to hear and determine the matter presented had been acquired of the person of the plaintiff in error. We therefore respectfully suggest that this cause should be reversed.”

Under the authority of the cases cited, the motion to quash should have been sustained, and the county judge should have then and there issued a legal warrant for his arrest.

The judgment of the lower court is therefore reversed, and the case remanded for proceedings consistent with this opinion.

MATSON, P. J., and BESSEY, J., concur.


text:
    CLEVE MORRIS v. STATE.
    No. A-4533.
    Opinion Filed April 2, 1924.
    (224 Pac. 377.)
    (Syllabus.)
    Evidence — When State May Attack Character of Accused. The state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Cleve Morris was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    W. N. Redwine, for plaintiff in error.

      The Attorney General, for the State.
   DOYLE, J.

Appellant, Cleve Morris, was convicted on a charge that he did have in his possession about 7*4 gallons of whisky, with the unlawful intent to sell the same and his punishment fixed at 60 days in jail and a fine of $150. From the judgment entered on the verdict, he appeals.

The assignments of error relate to the rulings of the court in the admission and exclusion of evidence and the sufficiency of the evidence taken as a whole to sustain the verdict.

The evidence offered by the state tended to prove the following facts: That J. B. Dowell, special officer in the Indian Service, and two other officers went to appellant’s house with a search warrant, and found his wife and three children there. J. B. Dowell served the search warrant on appellant’s wife and searched the place, but did not find any intoxicating liquors. They then followed a trail in a ravine on the side of the mountain, and at the head of the ravine, about 500 yards from appellant’s house found some rock furnaces; about 75 yards further on they found a 30-gallon galvanized boiler concealed in the brush; 50 yards further on they found 7 barrels that had contained mash; and there scattered around in different places they found 7% gallons of whisky covered with brush and leaves.. The witness Dow-ell further testified as follows:

"Q. Do you know his (defendant’s) reputation for violating the liquor laws?
"Mr. Redwine: Object to that as incompetent, irrelevant, and immaterial.
"The Court: You must confine yourself to that time and community?
“Q. Was that on the 26th day of May this year?
“Mr. Redwine: We still object.
“The Court: Unless you qualify your question to the community where he resides.
“Q. That’s in the community where he resides? A. Yes, sir.
“Q. Is that good or bad?
“Mr. Redwine: Same objection.
“The Court: Overruled.
“A. Bad.”

On the part of the defense, Horace Ricketts testified that he lived with his father 3 miles west of the Tie, and Cleve Morris had been working for his father and lived in the house upon which the search warrant was executed for about a month before the officer served the search warrant; that before appellant moved into the house, which was owned by a man in Okmulgee, a man by the name of Cook and his wife, a brother, and stepfather occupied the house for about six months, and they did not work during that time; that witness saw the old boiler up in the ravine before appellant moved there, and had seen a man by the name of Johnnie Williams carrying meal up there.

W. D. Ricketts testified to substantially the same facts, and that he had seen Johnnie Williams and Cook both with whisky coming from the mountain.

As a witness in his own behalf, Cleve Morris testified that he and his family had occupied the house for about a month before the officers came there; that he had formerly lived at Blanco; that he had been working for Mr. Ricketts and had never been up on the mountain until after his home was searched; that he knew nothing about the still or the barrels or the whisky, and never did have anything to do with them; that he never was in jail in his life.

Error is assigned on permitting the questions to be asked and answered concerning defendant’s reputation for violating the liquor law.

The precise question here presented was determined by this court in the case of Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307, holding that the state cannot attack the character of a defendant unless he first put that in issue by introducing evidence of his good character. In the opinion it is said:

“It is á fundamental principle of criminal law that 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.”

Says Bishop:

“Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.” 1 Bishop’s New Cr. Proc. par. 1112.

And we hold:

“The fact that an offense has been committed cannot be proved by common rumor or general repute.”.

It is not clear that this incompetent evidence did not turn the scale against appellant. Its admission was therefore prejudicial to his substantial rights.

We do not deem it necessary to consider the other assignments of error. The judgment of the trial court is accordingly reversed.

MATSON, P. J., and BESSET, J., concur.


author: MATSON, P. J.

text:
    THOMAS DICKSON v. STATE.
    No. A-4251.
    Opinion Filed April 5, 1924.
    (224 Pac. 723.)
    (Syllabus.)
    Indictment and Information — When Duplicitous.' In order to be subject to the objection of duplicity, an indictment or information must charge two distinct and complete crimes, for each, of which a separate punishment may be inflicted, and each of which would withstand a demurrer for want of sufficient facts to constitute a crime.
    Same — Information not Bad for Duplicity. Por information charging the crime of robbery in the first degree, and held not to be open to the objection of duplicity in that it also charges in the same count the independent crime of conspiracy to commit a crime, see body of opinion.
    Indictment and Information — Necessary Allegations Against Accessories Before Fact or Principal in Second Degree. The distinction between accessories before the fact and between principals in the first and second degree in cases of felony has been abrogated by statute, and it is not necessary in this jurisdiction to allege against accessories before the fact or principals in the second degree in an indictment or information any more facts than is required to be alleged against a principal in the first degree as each were known to the common law.
    Robbery — Information—Sufficient Allegation as to Ownership. Information examined and held to contain a sufficient allegation as to ownership of the property taken in a robbery case.
    Appeal and Error — Essentials of Record to Review Refusal of Requested Instructions. The refusal to give a requested instruction is not subject to review in the absence of a showing that the instruction was requested and refused in the manner required by the statute, and that the refusal to give the instruction was urged as a ground for a new trial in the lower court. In the absence of such a showing by the record, this court will review nothing but fundamental errors in the instructions.
    Trial — Failure to Instruct on Circumstantial Evidence not Error, Where the evidence is not entirely circumstantial, the failure to instruct on the law relative to circumstantial evidence is not error.

      7. Indictment and Information — Evidence of Conspiracy with Others than Persons Alleged not Erroneous, Allegation Being Surplusage. For reasons for holding that certain evidence relative to a conspiracy to rob was not improperly admitted, see body of opinion.
    8. Evidence — Corroboration of Accomplice Sufficient. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him witih its commission.
    9. Sáme — Circumstantial Evidence. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
    10. Same — Corroboration Sufficient. For evidence held to be sufficient to corroborate the evidence of the accomplices, see body of opinion.
    Appeal from District Court, Harper County; Arthur G. Sutton, Judge.
    Thomas Dickson was convicted of *the crime of robbery in the first degree, and he appeals.
    Affirmed.
    Swindall & Wybrant and C. H. Wyand, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Thomas Dickson was convicted, on the 21st day of September, 1921, in the district court of Harper county, Okla., of the crime of robbery in the first degree, and sentenced to serve a term of 10 years’ imprisonment in the state penitentiary.

From the judgment rendered against him defendant appealed to this court by filing herein on the 17th day of March, 1922, petition in error with case-made attached.

It is first urged that the trial court erred in overruling the demurrer to the information. The information, omitting caption and signature of the county attorney, is as follows:

"Now comes D. P. Parker, the duly qualified and acting county attorney, in and for Harper county, state of Oklahoma, and gives the district court of Harper county, state of Oklahoma, to know and be informed that one Thomas Dickson, did in Harper county, and in the state of Oklahoma,' on or about the 30th day of March, in the year of our Lord, one thousand, nine hundred and twenty-one and anterior to the presentment hereof, commit the crime of robbery in the first degree in the manner and form as follows, to wit: The said Thomas Dickson did then and there unlawfully, willfully, intentionally, wrongfully and feloniously conspire with and plan with one Joseph Hierholzer, to commit said crime and did aid and abet said Joseph Hierholzer in the commission of said crime, and that said Joseph Hierholzer being aided and abetted by said Thomas Dickson, did then and there wrongfully, and feloniously take certain personal property, to wit, the sum of $60.25, lawful money of the United States of America from the immediate presence of and from the possession of A. C. Clothier, as the cashier of the Citizens’ State Bank of Salt Springs, Oklahoma, a banking corporation, and against the will of said A. C. Clothier, accomplished by means of force and fear of great, immediate and unlawful injury to the person of said A. C. Clothier, said fear being brought about in the mind of said A. C. Clothier by said Joseph Hierholzer' with force and violence pointing a revolver at and toward said A. C. Clothier, and by said Joseph Hierholzer striking the said A. C. Clothier on the head with a revolver and by said Joseph Hierholzer shooting at said A. C. Clothier with a revolver, said revolver being then and there a deadly weapon, and did then and there and thereby by the employment of said force and fear as aforesaid, obtain possession of and retain possession of said property and prevent and overcome the resistance of said A. C. Clothier to said unlawful and felonious taking of said personal property, said personal property being immediately before and at the time of said wrongful taking in the immediate presence of and in the possession of said A. C. Clothier, as cashier as aforesaid with the wrongful and felonious intent of the said defendant to deprive the owner thereof and to convert the same to his own use, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state. ’ ’

The demurrer is based on the following grounds:

“First. That said information does not state facts sufficient in law to constitute a cause of action in favor of the state of Oklahoma and against this defendant.
“Second. That said information does not state facts sufficient in law to constitute a public oifense against the laws of the state of Oklahoma.
“Third. That said information does not state facts sufficient in law to' constitute a crime against the laws of the state of Oklahoma.
“Fourth. That said information is duplicitous in this that the same charges the crime of conspiracy to commit a felony under the laws of the state of Oklahoma and also with the commission of a felony.
“Fifth. That said information is duplicitous in that the same charges and sets forth the commission of more than one oifense in the same count of the information.”

The ground more particularly urged in the brief filed in behalf of the plaintiff in error is stated under subdivisions 4 and 5 of the demurrer. Succinctly stated, it is this, that the information is duplicitous, in that it charges the commission of more than one offense in the same count — first, a conspiracy to commit a felony, and, second, the commission of the felony.

Section 2558, Compiled Statutes 19213 provides:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use. of different means, the means may be alleged in the alternative in the same count.”

Section 1649, Compiled Statutes 1921, in part provides:

“If two or more persons, conspire, either: First. To commit any crime.”

First subdivision section 1651, Compiled Statutes 1921, provides:

“No agreement to commit a felony or to commit a misdemeanor amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.”

In Williams v. State, 16 Okla. Cr. 217, 182 Pac. 718, it was held:

“Under the statute (section 2234, Rev. Laws 1910), the crime of conspiracy to commit a felony or misdemeanor is not complete ‘unless some act besides such agreement be done to> effect the object thereof, by one or more of the parties to such agreement,’ and, where a conspiracy to commit a crime is charged, it is necessary that the information contain, in addition to an allegation of the conspiracy to commit the particular crime, an allegation of some overt act or acts done in furtherance and pursuance thereof.”

In the same case, in defining on overt act, the court held:

• “An .'overt act’ must be something more than evidence of the conspiracy. It must be an act done by one of the parties to carry out the intent, and it must be sueb as would naturally effect that result; at least, it must be a step towards the execution of the conspiracy.”

Under the foregoing conspiracy statute, proof of two matters are essential: First, an agreement entered into between two or more persons to commit a crime, and, second, some act besides such agreement done to effect the object of the agreement by one or more of the parties to the agreement. In other words, in addition to the agreement there must have been an attempt to commit the crime itself. It is apparent from the statute that, if this attempt results in the completion of the offense, the conspiracy, as well as the attempt, is necessarily merged in the commission of the completed crime, and the prosecution, therefore, is for the completed offense and not for the conspiracy.

In the foregoing information the only allegations as to a conspiracy are that the said Thomas Dickson did unlawfully, willfully, intentionally, wrongfully, and feloniously conspire with and plan with one Joseph Hierholzer to commit said crime (robbery in the first degree), and did aid and abet said Joseph Hierholzer in the commission of said crime, and the said Joseph Hierholzer, being aided and abetted by the said Thomas Dickson, did, then and there, wrongfully, etc., and then follows the allegations charging that the said Joseph Hierholzer did commit the crime of robbery as defined by our statute. The information, therefore, does not charge the crime of criminal conspiracy, but charges the completed crime of robbery in furtherance of a conspiracy to rob.

The test by which to determine whether an indictment or information is bad for duplicity is well stated by the Supreme Court of the territory of Oklahoma in the case of Baysinger v. Territory, 15 Okla. on page 388, 82 Pac. 729, in this language:

“In order to be subject to this objection, the indictment must charge two distinct and complete crimes, for each of which a separate punishment may be inflicted, and each of which would withstand a demurrer for want of sufficient facts to constitute a crime.”

See, also, State v. Franks, 21 Okla. Cr. 213, 206 Pac. 258; Wharton’s Criminal Procedure (10th Ed.) 292.

The information in this case is not open to the objection of duplicity. It contains a sufficient charge of robbery, but it does not contain a charge of conspiracy to commit a crime independent of the charge of robbery. It is not sufficient to say that that the defendant “did feloniously conspire with and plan with one J. H. to commit said crime, and did aid and abet said J. H. in the commission of said crime.” Such a charge of conspiracy would evidently be subject to demurrer.

Section 2574, Compiled Statutes 1921, provides:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must. be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

It is not necessary for the pleader to allege that the robbery was the result of a conspiracy in which the accused aided and abetted one Joseph Hierholzer. The distinction between accessories before the fact and between principals in the first and second degree in cases of felony has been abrogated by the foregoing statute, and it is not necessary in this jurisdiction for the pleader to allege any additional fact or facts as against accessories before the fact or principals in the second degree, as they were known to the common law, than are required to be alleged against a principal in the first degree, as known to the common law. The information in this case includes considerable unnecessary matter, which may be treated as surplusage, but it is not open to the objection that it is bad for duplicity.

It is further contended that the demurrer to the information should have been sustained because the same does not contain an allegation of ownership of the property alleged to have been taken in the robbery.

The information charges the taking of $60.25 from the immediate presence of and from the possession of A. C. Clothier as cashier of the Citizens’ State Bank of Salt Springs, Okla., against the will of the said A. C. Clothier, and accomplished by means of force and fear of great, immediate, and unlawful injury to the person of the said A. C. Clothier, etc., and further with the wrongful and felonious intent of the defendant to deprive the owner thereof and to convert the same to his own use. ■

Our statute (Comp. St. 1921, § 1784) defines robbery as follows:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear. ’ ’

We think the information sufficiently definite and certain on the subject of ownership of the property taken to inform the defendant that he was not accused of taking his own property, but that he was accused of taking property which was in the possession of A. C. Clothier, the cashier of the Citizens’ State Bank of Salt Springs, Okla., with intent to convert such property to his own use. In law “convert” conveys the idea of a dishonest appropriation. The information is sufficient in this respect. Wade v. State, 18 Okla. Cr. 592, 197 Pac. 180; Tyson v. United States, 7 Okla. Cr. 433, 122 Pac. 733; State v. Brill, 21 Idaho, 269, 121 Pac. 79.

On the whole, we think the crime charged in the said information is clearly and distinctly set forth in language such as to enable the defendant to know with what crime he was charged; that the words used in the indictment clearly negative the idea of the ownership of the said money in the defendant, and that such allegation did not tend to prejudice the defendant in regard to any substantial right. We conclude, therefore, that the court did not err in overruling the demurrer to the information. .

It is also contended that the trial court erred in refusing to give a certain instruction which it is alleged was requested to be given.

This assignment of error relates to the refusal of the court to instruct that the witness Joseph Hierholzer and Charles Brankel were what are known in law as accomplices, etc.

The record before us discloses that as to this particular instruction the fifth subdivision of section 2687, Compiled Statutes 1921, was not complied with. The motion for a new trial in the lower court discloses that as to all of the other requested instructions counsel based a ground for a motion for a new trial but made no reference to this alleged requested instruction. The record does not show that it was ever filed or became a part of the record in the case. It was not signed by the trial judge as required, and refused by him. The first mention of this alleged error appears in the petition in error filed in this ¿ourt. Before this matter is subject to review by this court there must be a showing that the instruction was requested and refused in the manner required by the statute, and that the refusal to give the instruction was urged as a ground for a new trial in the lower court, or else the alleged error must have been fundamental. Heatley v. Territory, 15 Okla. 72, 78 Pac. 79; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883. We hold, therefore, that as to this assignment of error the record presents nothing for review by this court, as no fundamental error appears.

It is next contended that the trial court erred in failing to instruct the jury upon the law relative to circumstantial evidence. This was not error, as an examination of the record discloses that the evidence was not entirely circumstantial.

It is next contended that the trial court erred in admitting evidence to go to the jury relative to a conspiracy between Thomas Dickson, Charles Brankel, Bennett Highfill, and Joseph Hierholzer to rob the bank at Salt Springs, Okla. It is contended in support of this assignment of error that, inasmuch as the information only charged a conspiracy between Hierholzer and Dickson to- commit the crime, the evidence that others were also implicated in said conspiracy was improperly admitted and prejudicial to the defendant. In view of the fact that our statutes permit accessories before the fact, as well as principals in the second degree, to be informed against as principals, and that no further allegations are necessary as against them than are necessary against principals in tbe first degree, and in view of the further fact that heretofore in this opinion it has been held that the allegation as to the conspiracy was merely surplusage, it is apparent that this assignment of error is without merit.

It is next contended that the evidence is insufficient to sustain the conviction. Joseph Hierholzer and Charles Brankel, who were accomplices of this defendant, each testified to facts sufficient to sustain this conviction, provided their testimony is corroborated by other evidence independent of that of the accomplices, which tends to connect this defendant with the commission of the robbery within the rule required by section 2701, Compiled Statutes 1921.

Construing the foregoing statutory provision, this court, in Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, held as follows:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances-thereof.”

Guided by the foregoing statute and holding of this court, we now proceed to consider the question of whether or not the evidence of the accomplices was sufficiently corroborated.

Joe Hierholzer testified that he alone robbed the Citizens’ State Bank of Salt Springs on the afternoon of Wednesday, March 30, 1921. He testified that such robbery was the culmination of a conspiracy entered into by him, Thomas Dickson, Charles Brankel, and Bennett Highfill for that purpose.

Dickson and Highfill had long been residents of that community and had known each other for 18 years; they were farmers and' had had considerable business dealings with each other. Brankel is a stepson of Dickson, and was frequently at Dickson’s house, although not living there at the time of the formation of this conspiracy. He also was a friend and acquaintance of Highfill. Hierholzer, who directly committed the crime, was a stranger in that community, and testified that for that reason it was agreed. between the conspirators that he alone should do the actual robbing.

Hierholzer appeared at the home of Dickson. some 8 weeks before the robbery was committed. He was in company with a man by the name of Renshaw, a relative of Mrs. Dickson. They came to Dickson’s house about 9 o’clock at night. They came from Highfill’s and had a horse that Dickson knew belonged to Highfill. It appears that both Renshaw and Hierholzer were fugitives from justice. To use a common expression, they were “on the scout.” The officers particularly were at that time searching for Renshaw, and Renshaw disappeared from Dickson’s premises before this conspiracy was entered into. Dickson testified that Renshaw introduced Hierholzer to him as one Joe Dickson, the son of a brother of this defendant who was at that time residing in Oklahoma City. Hierholzer, on the other hand, testified that he was not' introduced to Dickson as Joe Dickson, but that after some circumlocution it was agreed between him and Tom Dickson and Renshaw that it would allay suspicion if he were introduced by Dickson as his nephew Joe Dickson. Thereafter Dickson, during the 8 weeks immediately preceding this robbery, and while Hierholzer was staying at his house, introduced Hierholzer to numerous of his neighbors as his nephew Joe Dickson. Dickson admits this and claims that he was in perfect good faith in making such an introduction of Hierholzer to his neighbors and friends, and testified that he did not know that Hierholzer was a person other than his nephew, until he himself was arrested and was being taken to jail charged with this particular crime. Dickson also testified that Hierholzer claimed that his purpose in that vicinity was to obtain leases to prospect for oil, but there is no evidence in this record that, during the entire 8 weeks that Hierholzer remained at Dickson’s house, he made any effort whatever to in any manner obtain from either Dickson or any of his neighbors any lease for oil-drilling purposes. During this entire period of eight weeks Hierholzer remained close to the Dickson premises. He helped chop some wood and repair some fencing — a rather unusual occupation for a broker of oil leases. Another remarkable circumstance is' that Dickson claims that during all this entire 8 weeks, and it must be presumed he had numerous conversations with Hierholzer, he was never able to discover but that Hierholzer was in fact his nephew Joe Dickson.

That Dickson’s testimony concerning his introduction to Hierholzer, and concerning his lack of knowledge as to his true identity, is a fabrication, we think is easily discernible from Dickson’s conduct as disclosed by his own testimony.

After this robbery was committed, Hierholzer, who at the time of its commission was riding a horse which Brankel and Highfill had obtained for him, and using a saddle which Dickson had obtained for him, came back immediately to premises occupied by Dickson. During the commission of the robbery Hierholzer had been shot in the side. If Dickson was innocent of his identity and in fact believed, as he testified, that Hierholzer had engaged in a horse race, got into a fight, and was shot during the fight, and if he was his nephew, he certainly would have taken Hierholzer to his own home and there procured, as soon as possible, the necessary medical attention for him. In this connection it must be remembered that Dickson testified that at this time he did not know but that Hierholzer was in truth and fact his nephew Joe Dickson. . However, he did not take Hierholzer to his home, but left him in a cabin on another 80 acres owned by Dickson about a mile and a half from his home. He procured no medical attention for Hierholzer, but surreptitiously Dickson and his wife carried food to Hierholzer to this cabin,, although Dickson had learned of the bank robbery, and before that the officers were searching that community for the man who had committed it, and had made inquiry of Dickson whether or not the man who had been staying at his house was there at that time, and Dickson replied, in substance, that he had left his house a couple of days before, turned his horse loose, and that the horse had wandered back, but that the man had never returned. This was a point-blank falsehood, and to our mind is unexplainable, consistent with Dickson’s innocence, and with what he claims to have been his subsequent and honest endeavor to deliver Hierholzer to the officers as the perpetrator of the crime.

Another extremely incriminating circumstance disclosing guilty knowledge on the part of Dickson is the fact that after the robbery was committed he turned the horse that Hierholzer had been using on the day of the robbery loose into his wheat field in a canyon where it would be hard to discover. Now in this connection Dickson claims that he believed the horse belonged to Charles Brankel, that on the Monday night preceding the robbery, at about midnight, Brankel brought this particular horse to Diekson’s house, and it was kept there until the robbery was committed. Brankel also had another horse with him which he (Brankel) rode on the day the robbery was committed. After the robbery these two horses were tied close to the old deserted shack in which Hierholzer was concealed near the canyon. Dickson turiied the horse that Hierholzer had used into his pasture but left the other horse where it had been hitched. This is significant, because if both horses belonged to Brankel, as Dickson claimed, and Brankel was there at the time, which is undisputed, why should Dickson turn one of Brankel’s horses loose and not the other? Dickson did not consult Brankel about this, but turned the horse loose on his own authority.

Another significant circumstance is this: Hierholzer and Brankel both testify to the formation of the conspiracy to rob this bank. The conspiracy was first talked over in a canyon near Dickson’s house, and it was there determined, according to Hierholzer’s and Brankel’s testimony, that it would be best to use a horse instead of an automobile in perpetrating the robbery for purposes of escape. It then became necessary, according to the testimony of the accomplices, to procure a strange horse for this purpose. The duty of procuring this horse devolved upon Highfill and Brankel, and Brankel says that Dickson knew when he (Brankel) came to Dickson’s house on Monday night, before the robbery was committed on the following Wednesday, that this second horse which Brankel was leading was to be used by Hierholzer in committing the robbery. Hierholzer also testifies to this fact. Dickson, on the other hand, testifies that he did not know that to be a fact; that before Brankel came there at midnight, leading a strange horse, Brankel told him he had traded for the horse, but he made no inquiry as to what he traded, who be traded with, or anything further about the horse. This perhaps would not be such a significant circumstance were it not for the fact that Brankel was a young man, over 20 years younger than Dickson, and was also Dickson’s stepson. Under the circumstances, therefore, it is evident that Dickson took very little interest in the business affairs of his stepson.

Another significant circumstance is the fact that Dickson admits that he had a promissory note for $1,200 just about, to fall due at the time this robbery was committed, and further that he had no funds with which to pay this note.

Another circumstance is the fact that Dickson borrowed the saddle that was used by Hierholzer at the time of the robbery, and after the robbery was committed Dickson returned the saddle to its owner before any arrests were made, At the time Dickson borrowed the saddle he made a false statement as to the use intended to be made of it.

There are numerous other incriminating circumstances such as tracks, etc., in this record, clearly corroborating the testimony of these two accomplices. In fact it has never been our privilege to examine a record where the accomplices’ testimony was more thoroughly corroborated than in this case. To give mention to all of these corroborating circumstances would unnecessarily prolong this opinion. Suffice it to state that the evidence is not only sufficient to sustain the conviction, but with this record before us the jurors would have been recreant to their sworn duty had their verdict been otherwise.

Finally it is contended that the trial court erred in not instructing the jury, as requested, that in case a verdict of guilty should be returned the jury should fix the punishment. The court imposed the minimum penalty of 10 years’ .imprisonment in the penitentiary fixed by statute for robbery in the first degree. The jury returned a general verdict of guilty, but failed to agree upon the punishment. It is apparent, therefore, that there were some members of the jury that did not think this defendant should have received the minimum punishment.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    R. W. SPENCER et al. v. STATE.
    No. A-4453.
    Opinion Filed April 5, 1924.
    (224 Pac. 378.)
    Appeal from County Court, Tulsa County; Z. I. J. Holt, Judge.
    R. W. Spencer and R. H. Spencer were jointly tried and convicted of the offense of manufacturing intoxicating liquor and each sentenced to pay a fine of $250, and to serve 90 days in the county .jail, and they appeal.
    Appeal dismissed.
    D. M. Martindale, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, R. W. Spencer and R. H. Spencer, were jointly tried and convicted in the county court of Tulsa county, Okla., of the offense of unlawfully manufacturing intoxicating liquor, to wit, corn whisky, and punishment fixed as to each as above indicated. Judgment against each defendant was rendered in accordance' with the verdicts on the 17th day of May, 1922. Petition in error with case-made attached was filed in this court on the 15th day of September, 1922.

Tbe Attorney General has filed, a motion to dismiss this appeal on the ground that the same was not taken within the time allowed by statute for taking appeals in misdemean- or cases. Section 2808, Compiled Statutes 1921.

The maximum time allowed by said statute for taking an appeal to this court in misdemeanor cases, where proper order by the trial judge is made, is within 120 days after the rendition of the judgment appealed from. The- appeal in this case was not lodged in this court until the 121st day after rendition of the judgment. The court has acquired no jurisdiction of the appeal, and the same is therefore dismissed and cause remanded to the trial court, with directions to cause the judgment to be carried into effect.


text:
    BENNETT HIGHFILL v. STATE.
    No. A-4138.
    Opinion Filed April 5, 1924.
    (224 Pac. 729.)
    (Syllabus.)
    1. Evidence — Evidence Corroborating Accomplice Sufficient. For evidence held to be sufficient to corroborate the evidence of the accomplices, see body of opinion.
    2. Trial — Credibility of Witnesses — Instruction that Witnesses Accomplices as Matter of Law Properly Refused. Where there is even slight conflict in the evidence as to whether or not any witnesses are accomplices of the defendant in the commission of the crime, the trial court is not required to give an instruction to the effect that as a matter of law such witnesses are accomplices.
    3. Appeal and Error — When Refusal of Requested. Instruction Cause for Reversal. The refusal to give a requested instruction will not be held to be reversible error unless in the opinion of this court, after 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.
    4. Trial — Remarks of Court to Jury not Prejudicial as Attempt to Coerce Verdict. Remarks of the trial judge to the jury examined and held not to be such as tended to coerce the jury to f return a verdict.

      5. Evidence — Admissibility Though Incidentally Disclosing Probaable Guilt of Another Crime. Evidence indicative of guilt and tending to some extent to elucidate the crime charged - is admissible, although incidentally it may disclose that the defendant is probably guilty of another crime.
    6. Trial — Instruction on Defense of Alibi Approved. An instrucr tion on the subject of alibi examined and held to fairly cover the law as applicable to the defense of alibi interposed in this case.
    7. Trial — Instruction, not Erroneous as Comment on Weight of Evidence. For an instruction held not to be a comment on the weight of evidence, see body of opinion.
    Appeal from District Court, Harper County; Arthur G. Sutton, Judge.
    Bennett Highfill was convicted of the crime of robbery in the first degree, and he appeals.
    Affirmed.
    Swindall & Wybrant and C. H. Wyand, for. plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Bennett Highfill was convicted on the 4th day of June, 1921, in the district court of Harper county, Olda., of the crime of robbery in the first degree, and sentenced to serve a term of 10 years’ imprisonment in the state penitentiary. From the judgment rendered against him, defendant appealed to this court by filing herein on December 3, 1921, petition in error with case-made attached.

It is contended that the evidence is insufficient to sustain the conviction, in that there is no sufficient corroboration, of the accomplices Joseph Hierholzer and Charles Brankel.

This is a companion case to that of Tom Dickson v. State, 26 Okla. 403, 224 Pac. 723, this day decided. The pros-edition involved the robbery of the Citizens’ State Bank of Salt Springs, Okla., on the 30th day of March, 1921. The record in this case is very voluminous, including about 900 pages of typewritten matter. To enter into a lengthy discussion, therefore, of all the circumstances tending to corroborate the accomplices Hierholzer and Brankel, and to connect this defendant with the commission of the offense, would prolong this opinion to too great a length. We will confine the discussion only to a few of these circumstances which we believe are sufficient for that purpose.

The defendant, Highfill, was a resident of Woodward county, Okla., a married man, about 45 years of age, and his family consisted of a wife and several small children. About two months previous.to. the robbery of the Salt Springs bank, Bob Rancho, who had been a resident of the community in which Highfill lived, appeared at Highfill’s house driving a Buick automobile in which Joe Hierholzer, Hershel Trainer, and Frank Gates were also riding. These men had escaped from the jail at Clayton, N. M., and the car in which they were riding was a stolen car. They stayed at Highfill’s house for several days. About a week after they had first arrived there Trainer and Gates, and perhaps Rancho, made a trip by automobile to Mooreland, Okla., and there became intoxicated and created a disturbance in that town which caused an investigation by the officers there that afterwards led to the arrest of Trainer and Gates near Highfill’s place and the return of Trainer and Gates to Clayton, N. M. High-fill had knowledge of the fact that Trainer and Gates had been arrested and taken by the officers. At the time of the arrest of Trainer and Gates, Hierholzer was concealed some place on Highfill’s premises, and the officers failed to find him. Thereafter Highfill assisted Hierholzer in making a removal to the premises of Thomas Dickson, where Hierholzer stayed until the time of this bank robbery, a period of time covering about 6 or 8 weeks. During this time Highfill made several trips to Dickson’s place, and the evidence shows he was in consultation with Dickson, Hierholzer, and Charles Brankel on Dickson’s place. One of these consultations occurred on the day immediately preceding the bank robbery; another on a day about a week preceding the bank robbery.

The evidence further discloses by the accomplice Brankel that he and Highfill furnished the. horse which Hierholzer rode at the time he robbed the bank. The circumstances disclosed by the state’s evidence are sufficient to corroborate Brankel to the effect that Highfill assisted him in procuring this horse. ITighfill’s conduct on the day immediately preceding the bank robbery and on the day of the bank robbery indicates that he had knowledge that the robbery was to take place, and that he was a guilty participant therein. After the robbery was committed, Highfill assisted his confederates Dickson and Brankel in taking Hierholzer, who was then wounded, from the place where he had been concealed on Dickson’s premises to the home of Jack McGee. This occurred late at night, and when they were apprehended in this act by the officers Highfill said, “We captured your bank robber and are bringing him in,” and Brankel said, “We are bringing him in for the reward. We captured him down in Deke Dunn’s pasture, wandering around on the prairie.” That Highfill was standing within six or seven feet of Brankel at the time he made this latter remark and made no comment on it whatever, when, as a matter of fact, Highfill knew that Hierholzer had not been captured wandering around in Deke Dunn’s pasture, but had been brought from an old cabin near a canyon on Tom Dickson’s place by a circuitous route that led through a rough and hilly country, through fields and pastures, often off of the traveled highway.

Further it is disclosed' that at the time the officers arrested Trainer and Gates the following occurred:

“Q. When you went over there to arrest Trainer and Gates at that time, you had a conversation with Bennett Highfill about those boys? A. Yes. .Q. And in that conversation now, what was said; did you ask about those boys? A. Yes, sir. Q. What did he say about them? A. Well, me and Welch drove up there and Bennett was out west of the house, coming down the road to the-car and when we drove up there I says — I says, ‘Bennett, where is those boys that drove this car down to Mooreland yesterday?’ Well, he spoke up and says, ‘I don’t know.’ Well, I walked around and looked in the back of the ear and one of the boys’ hats was laying in the back end of the car, and I says, ‘Whose hat is this back here?’ And Bennett looked back there and kinda surprised and he says, ‘I don’t know whose hat that is.’ And I says, ‘Now, Bennett, you are just coming back from where those boys have gone, just got back from that trip.’ Well, he spoke up then and says, ‘Now,’ he says, ‘them boys were here last night,’ and he says, ‘They were drunk,.blackguarding, and cursing around my family and I run them off.’ And he says, ‘You might find them over to Clarence Gray’s. Q. But at first he told you he didn’t know anything about where they were? A. Yes.”

That on another occasion in the following week the same officers went to Highfill’s house to look for Hierholzer, but not finding Highfill at home they went over to Clarence Gray’s house and there found Highfill, and Highfill told them that Hierholzer had left his place on the Sunday preceding, and that he did1 not know where Hierholzer was, when in truth and in fact he did know that Hierholzer at that time was at Tom Dickson’s place, and that he (Highfill) had furnished the horse for Bob Rancho and Joe Hierholzer to ride over to Tom Dickson’s place. These transactions occurred over a month before the robbery, and show that at that time Highfill was assisting in concealing Hierholzer in order to prevent his arrest and return to Clayton, N. M.

There are many other incriminating circumstances in this record which dovetail one into the other, and, when considered all together, are unexplainable consistent with the innocence of this defendant, and which in the opinion of this court tend clearly, when so considered, to connect this defendant with the commission of the crime of which he was convicted, and for that reason are sufficiently corroborative of the testimony of the accomplices Hierholzer and Brankel. As to some of these circumstances, reference may be had to the opinion in the Dickson Case.

Counsel for defendant requested the court to give the following instruction:

“The court instructs the jury that under the law the witnesses Joe Hierholzer and Charles Brankel are what is known in law as accomplices, and a conviction cannot be had upon the testimony of such accomplices unless their testimony is corroborated by such other evidence as tends to connect the defendant Bennett Highfill with the commission of the offense, and the corroboration required by law is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

The trial court gave the following instruction, which is excepted to by counsel for the defendant:

“One who knowingly, voluntarily, and with a common intent with the pxfincipal offender, is concerned and unites in the commission of a crime, is an accomplice. A conviction cannot be had upon the testimony of an accomplice or accomplices, unless he or they be corroborated by such other evidence as tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. It is not necessary, however, that the corroboration should go so far as to establish by itself and without the aid of the testimony of the accomplice, the fact of the commission of the offense by the defendant. If the corroborating evidence tends in some degree to connect the defendant with the commission of the crime, it is sufficient.”

Under the testimony of Hierholzer and of Brankel, each were admittedly accomplices of the other in the commission of the crime, and also coeonspirators and accomplices of Tom Dickson and the defendant, Bennett Highfill, in the commission thereof.

It is contended, therefore, that because there was no conflict in the evidence on the part of the state as to whether or not the witnesses Hierholzer and Brankel were accomplices of this defendant, the court should have given the requested instruction and that the error occasioned by the refusal of the court to give the requested instruction was not cured by the giving of the instruction above excepted to.

Counsel rely upon the case of Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519. In the Moore Case, the instruction requested and refused, as shown by the body of the opinion in that case, is in substance the instruction given by the court in this case, and in the Moore Case it was held that under the state’s theory the defendant was entitled to have such an instruction given when requested by him.

The instruction here requested asked the court to determine as a matter of law that the witnesses, Joe Hierholzer and Charles Brankel were accomplices of the defendant, Bennett Highfill. While the evidence of the witnesses Hierholzer and Brankel, as heretofore stated, if believed, would as a matter of law constitute them accomplices of the defendant, Highfill, the defendant introduced a number of witnesses in addition to his own testimony in an attempt to establish an alibi and to discredit the testimony of Hierholzer and Brankel to such an extent as to clearly create an issue of fact for the determination of the jury as to whether or not Hierholzer and Brankel committed this robbery by themselves or in conjunction with Dickson and this defendant. In McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673, this court held:

“Where the evidence is conflicting as to whether or not a witness participated in committing the offense charged, the question as to whether or not such witness is an accomplice is one of fact for the jury; but where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.”

We are of opinion that there is enough conflict in the evidence in this record as to whether or not Hierholzer and Brankel were in fact accomplices of this defendant as not to require the giving of the requested instruction, and that the one given and excepted to was a fair statement of the law as applicable to the issues on this question.

There is another reason that • impresses this court with the conclusion that this judgment should not be reversed because of this alleged error. It is this: Section 2822, Compiled Statutes 1921, provides in part:

“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, * * * -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.”

In construing the foregoing statute, this court has held:

“Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or in its instructions to the jury, we must further find, from an inspection of the entire record, that appellant was injured thereby; and to determine this issue the court must consider the question as to whether the appellant is guilty or innocent of the offense charged. ’ ’ Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831.

Also see Meiggs v. State, 16 Okla. Cr. 557, 185 Pac. 450; Thompson v. State, 16 Okla. Cr. 716, 184 Pac. 467; Johns v. State, 8 Okla. Cr. 585, 129 Pac. 451; Cole v. State, 18 Okla. Cr. 439, 195 Pac. 901; Mobbs v. State, 18 Okla. Cr. 77, 192 Pac. 823.

The substance of the latter decisions is to the effect that section 2822 is a limitation upon the power of this court to set aside a judgment of conviction and grant a new trial on the ground of the misdirection of the jury or other grounds stated in said section, unless there has been a clear miscarriage of justice or a substantial violation of a constitutional or statutory right of the defendant. It is the duty of this court to so construe such statute that the evident legislative intent may find full expression in the decisions. It was not intended that this court should set aside a judgment of conviction because of error such as is presented by this assignment, unless it is apparent to this court from examination of the record that the trial probably resulted in a miscarriage of justice occasioned by such alleged error, or else resulted in depriving defendant of some constitutional or statutory right.

It cannot be said that the instruction given and excepted to deprived the defendant of any constitutional or statutory right. In fact, the instruction given is in consonance with the statute as to the necessity and extent of corroborating an accomplice. The instruction given was not violative of any constitutional provision, as there is no constitutional provision on the subject. No impartial reader can peruse the record of the evidence in this case andi say that the giving of this instruction and the refusal to give the requested instruction resulted in a miscarriage of justice. The corroboration of the accomplices in this case was so conclusive as to remove from the mind of any impartial arbiter any doubt as to the guilt of this particular defendant. The corroboration of the accomplices in this case is equally as conclusive and convincing as is the corroboration of the same accomplices in the case of Tom Dickson v. State, heretofore referred to, and this diay decided.

For reasons stated, the conclusion is reached that this assignment of error presents no good ground for setting aside the judgment.

It is next contended that the trial court by certain remarks to the jury tended to coerce the jury to return a verdict. The record in support of this assignment of error is as follows:

“And thereafter the jury returns into court, the defendant being present in court and being represented by his attorneys, the state being represented by its attorneys, and the further following proceedings were had and done, to wit:
“By the Court (addressing the jury): Gentlemen of the jury, have you agreed on a verdict?
“By the Foreman: We have not.
“By the Court: Well, I don’t want you to tell me how many are for conviction or how many are for acquittal, if any are for either, but you might indicate how you stand by saying you stand six to six or ten to two.
“By the Foreman: Ten to two is-right.
“By the Court: Well, I am going to retire, gentlemen. If you agree on a verdict by — well, any time before 2 o’clock, I will come down and receive it. If you do not agree on it until after that time, why I will receive it in the morning if you have it for me. Is it any more comfortable for you in here than in your jury room?
“By the Foreman: I believe it is just about the same.
“By the Court: Well, if you prefer you may stay in here; if you do not, you may retire with the bailiff to the jury room. Suit yourselves.
“By the Foreman: Well, let’s go back to our room.
“By the Court: All right.
“Whereupon the jury retire in charge of their sworn bailiff to further enter upon their deliberations in said cause and thereafter the jury returns in the court on this date, to wit, June 5, 1921, the defendant being present in person and represented by his attorneys and the state being represented by its attorneys, the further following proceedings were had and done, to wit:
“By the Court: Gentlemen, have you agreed on a verdict?
“By the Foreman: We have not.
“By the Court: I understand you wanted to make á report to the court.
“By the Foreman: Well, we don’t think we can arrive at a verdict — unanimous verdict.
“By the Court: Well, your verdict will have to be unanimous, gentlemen. I don’t know why you cannot agree on the verdict, gentlemen. The evidence is all before you. Do you stand the same as you did last night?
“By the Foreman: Yes, sir.
“By the Court: It is not the province of the court to compel any man to compromise with his conscience, gentlemen — it is your duty as jurors tot confer with each other and discuss the evidence between yourselves and to get to some agreement between yourselves as to what the facts are disclosed by that evidence and return your verdict according to the law and the evidence. As I stated, the evidence is all before you. If you do not agree on a verdict it will be necessary to try the case again, and the same evidence will have to be submitted to another jury. That will be a great expense and hardship perhaps to the defendant and to the state, and that next jury will hot have any additional evidence in all probability, than what is before you now. As I say, it is your duty to fairly and candidly discuss the evidence between yourselves and try, if possible, to agree what the facts are as established by that evidence. I kept one jury out 72 hours one time and they finally brought in a verdict. I don’t know what I will do with this jury, but I think, gentlemen, you ought to come to some agreement under this evidence as to what the facts are, and I believe that if you candidly and fairly discuss the evidence before you between each other you can come to some agreement as to what the facts are as established by that evidence. You have been out now something like 15 — 16 hours — you stood ten to two for something like 12 hours. I don’t know whether you have tried to fairly discuss the evidence and come to some agreement as to what the facts are or whether there are ten mighty stubborn men on the jury, but anyhow I am going to let you go back to your jury room and see if you can’t agree upon what the facts are and return your verdict accordingly. If that is all, gentlemen, you may retire.
“Whereupon the jury start to retire from the courtroom.
“By the Court (addressing the jury): Wait a minute, gentlemen. Just have chairs.
“Whereupon, the jury return to their seats in the.jury box.
“By Mr. Wybrant: The defendant objects to the remarks of the court to the jury and takes an exception.
“By the' Court: The defendant wanted to take some exceptions to the remarks made by the court to the jury and I wanted it to be done in the presence of the jury. That is all, gentlemen. You may retire.
“Whereupon the jury retire from the courtroom in company with their sworn bailiff to further enter upon the consideration of their verdict.”

In connection with this assignment of error it is contended that the trial court threatened to keep the jury together an unreasonable length of time, that the jury were told that another trial would entail great expense and hardship to the defendant and to the state, andi that the next jury would probably not have any additional evidence, and that the trial court further erred in calling the jury back so' that the jury could hear the exception taken by counsel for the defendant to the remarks of the court.

Counsel for the defendant have cited no authority in support of this assignment of error. We consider the assignment without merit. We do' not consider the remarks made as in any way tending to threaten the jury or indicating a desire on the part of the judge that the jury return a verdict of guilty. Exceptions to the remarks of the judge must be taken at the time the remarks are made. Miller v. Ter., 15 Okla. 423, 85 Pac. 239; Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796; McClendon v. State, 19 Okla. Cr. 382, 200 Pac. 464.

It is also contended that the trial court erred in admitting, over objection and exception of the defendant, certain incompetent testimony on the part of the witness Hierholzer. The witness Hierholzer was permitted to testify that about two months previous to the commission of this bank robbery he, together with two other escaped convicts, stayed at the home of Bennett Highfill for a period of about one week, and the witness gave certain testimony to the effect that during said time Bennett Highfill knew that this witness and the others with him were escaped convicts, and that during such time the defendant went to the city of "Woodward, Okla., to learn for these men if the officers there had any report about their escape and whether or not they were looking for them. It is contended that this evidence was incompetent and prejudicial, because it tended to show that the defendant was harboring criminals before it is charged that the conspiracy to rob the bank at Salt Springs was ever entered into.

The defendant, as a witness, was permitted to explain his alleged conduct as to some of these matters and as to others he made a complete denial. The evidence was competent as tending to connect the defendant with the accomplice Hierholzer as a guilty agent, and tended to show that he knew the character of the said Hierholzer as being that of a criminal and as a man such as would likely enter into a criminal scheme, and it was also competent to rebut the statements of the defendant that his relations with Hierholzer were perfectly innocent at all times. This evidence was indicative of guilt and tended to some extent to elucidate the crime charged. The weight of this evidence and of the credibility of the respective witnesses were questions solely for the jury. The fact that such testimony tended to show that the defendant Highfill knowingly harbored a criminal did not for that reason render the testimony incompetent if, for other reasons, the evidence was competent. McLaughlin v. State, 18 Okla. Cr. 627, 197 Pac. 717, 719; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088; Littrell v. State, 21 Okla. Cr. 466, 208 Pac. 1048, 1050.

The trial court instructed the jury as follows:

"Some evidence has been offered by the defendant in this case for the purpose of proving an alibi — that is to say, that the defendant was in another place at the time of the offense charged to have been committed and at the time he is charged with having encouraged, aided, assisted, and abetted Joseph Hierholzer in the commission of said offense, and was so distant from said places that he could not have participated in said crime. When a defendant undertakes to establish an alibi, the evidence which he offers, taken with the other evidence in the case, must account for him during the whole period when his presence is material. If from the whole case and a consideration of all of the testimony the evidence in this behalf produced be sufficient to create in your minds a reasonable doubt as to whether the defendant was present at the times and places claimed by the state that the defendant encouraged, assisted, aided, or abetted in the commission of said offense, then you should give him the benefit of that doubt.”

The defendant excepted to the giving of the foregoing instruction on the ground that it did not correctly define the law of alibi. In this connection it is contended that the trial court should have instructed on this subject' to the effect:

"That if, after careful consideration of all the evidence in the case, the jury entertained a reasonable doubt that the defendant was in such other place when the crime was committed, then and in that event the jury should give the defendant the benefit of the doubt and acquit him.”

The instruction fairly covered the law as applicable to the defense of alibi in this case. Under the state’s theory it was not claimed that the defendant was present at the place of the commission of the offense, but that he entered into a conspiracy to commit the offense and aided and abetted therein, though not present at the time and place of its conn mission. The evidence as to alibi, therefore, was directed, not to absence at the time and place of the commission of the offense, but as to the absence of the defendant at. the time and place of the formation of the conspiracy to commit the crime, and at the place where the state’s evidence showed the defendant to have been aiding and abetting the witness Hierholzer in the commission of said offense on the day that it was committed. The instruction therefore, in our opinion, was sufficient.

The further objection to this instruction that the jury is not told that if they believed the alibi they should acquit the defendant, but are only told that they should give him the benefit of that doubt, is purely a . technical objection, possessing no substantial merit when considered in the light of other instructions given to the effect that the defendant is presumed to be innocent and that the burden is on the state to prove his guilt beyond a reasonable doubt.

The trial court also gave the following instruction:

"Some evidence has been introduced in this case tending to impeach one of the witnesses. One of the recognized means of impeaching a witness is to prove that his general reputation for truth and veracity is bad in the community in which he lives. The opposing party may, if he chooses, contradict such testimony by introducing other competent witnesses to testify that his general reputation for truth and veracity in such community is good. If you believe from the evidence in this ease that the general reputation of the said witness for truth and veracity is bad in the community in which he lived, then you have a right to disregard his testimony as a witness as being unworthy of belief. But you are not bound to. disregard it. It is for you to say, in the light of all the facts and circumstances, whether - any or all of his testimony is worthy o¿r unworthy of belief, and you will give it such weight as you deem it entitled to, or none, if entitled to none.”

The latter instruction was excepted to by the defendant "as incorrectly defining the law relative to impeachment evidence, prejudicial in its nature, and contrary to the rule announced by the Criminal Court of Appeals.” It is first contended in the brief that said instruction constitutes a comment on the weight of the evidence. While this objection was not urged against the instruction at the time it was given, we think the objection is without merit. The trial court employed the expression “some evidence,” but did not indicate the amount of the evidence or the weight thereof. The following decisions are authority to the effect that such language does not constitute a comment on the weight of the evidence: People v. Cummings, 113 Cal. 88, 45 Pac. 184; State v. Brown, 28 Or. 147, 41 Pac. 1042; State v. Watkins, 11 Nev. 30; State v. Rose, 47 Minn. 47, 49 N. W. 404.

The instruction is not open to the objection urged against it, “that the jury may disregard the whole of such witness’ testimony unless the same is corroborated by other competent testimony,” but on this subject see the case of Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901, wherein the cases relied upon by defendant’s counsel are specifically overruled.

The alleged errors as to the sufficiency of the information and as to the refusal of the trial court to instruct on the law relative to circumstantial evidence are covered in the opinion of this court in the companion case of Thomas Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723, this day decided.

After a full and impartial consideration of the entire record, the conclusion is reached that the errors complained of were not such as to require a reversal of this judgment, and that the evidence is sufficient to sustain the conviction, and that the judgment should be affirmed. It is so ordered.

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J. PER CURIAM.

text:
    J. C. WILBORN v. STATE.
    No. A-3987.
    Opinion Filed Aug. 14, 1923.
    Rehearing Denied April 7, 1924.
    (224 Pac. 214.)
    (Syllabus.)
    1. Forgery — Uttering Forged Note Held in Violation of Statute— Allegations of Sale and Offer to Sell Forged Note Held Sufficient. The uttering of a forged promissory note and its disposal to a bank for the purpose of satisfying a former obligation of the accused under the circumstances here was in violation of section 2078, Comp. Stat. 1921, making it an offense for ‘‘any person who sells, exchanges, or delivers for any consideration any forged or counterfeited note,” etc., and the allegations in the information that a sale and offer to sell were made were sufficient.

      2. Same — No Variance Between “Hoffert” and “Hoffrt.” There was no variance between the allegations and the proof because the name of the injured party was spelled "■Hoffert” in information while the signature to the note was shown to be “Hoffrt.”
    3. Same) — Sufficient Proof of Fraudulent Motive — False Pretense Distinguished. An intent to cheat or defraud is one of the elements of forgery, but under this statute it is sufficient to allege and prove as a fraudulent motive that' there was some consideration or advantage inuring to the benefit of the accused. The state need not go further to show that there was an intent to cheat the aggrieved person out of the specific amount named in the spurious note.
    (a) The rule distinguished from that in cases of false pretense.
    4. Weight’ of Evidence. As to the evidential force of proof that other notes had been executed and paid, see body of the opinion.
    Appeal from District Court, Woodward Comity; James B. Cullison, Judge.
    J. C. Wilborn was convicted of forgery in tbe second degree, and be appeals.
    Modified and affirmed on rebearing.
    S. M. Smith and Swindall & Wybrant, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. C. Wilborn, plaintiff in error, here designated the defendant, was by information filed in the district court of Woodward county on July 3, 1919, charged with having in his possession a certain forged and counterfeit promissory note and with having, on the 1st day of May, 1918, unlawfully and knowingly offered this promissory note for sale to the First National Bank of Woodward, and with having on that date uttered and transferred to this bank as a true and valid instrument said counterfeit note. At the trial, November 23, 1920, the defendant was by a verdict of the jury found guilty as charged and his punishment fixed at one year and one day in the state penitentiary. From the judgment on the verdict, he appeals.

The facts disclosed by the evidence show that the defendant sold an automobile to the cashier of the Bank of Richmond at Richmond, Okla., and that the cashier gave the defendant, Wilborn, a deposit slip for $756.45, showing a deposit of that amount to defendant’s credit in the Bank of Richmond, the deposit so made being the purchase price of the car. The defendant then went to Woodward and drew a cheek in favor of the First National Bank of Woodward on the Bank of Richmond for the sum deposited to his credit in the latter bank. The bank at Woodward credited defendant’s account with this amount, which was paid by the Woodward bank to the defendant in cash. The cashier of the Bank- of Richmond, immediately after having given the defendant this credit in his bank, absconded and the bank was closed and taken over by the state bank commissioner, and the cheek drawn in favor of the Bank of Woodward was returned unpaid. The defendant was then notified by the Woodward bank that his account at that bank was overdrawn to the amount of $756.45, whereupon, to cover this ’overdraft, he delivered to the Woodward bank the note here in question, in the amount of $756.45, signed by the defendant, his wife, Gertrude Wilborn, and J. iioffrt. No money was received by the defendant and ho receipt of money anticipated by reason of the execution and transfer of this note. The note was given merely to cover the amount of money previously received by the defendant, as above stated.

Hoffert, whose purported signature appeared on the note, testified at the trial that the signature thereon was a forgery; that he knew nothing of the execution of the note, and that the placing of his name on the note was without his knowledge or authority.

It is alleged in the information that the defendant knowingly and feloniously offered this promissory note for sale to the First National Bank of Woodward, for the sum of $756.45 in money, with the unlawful and felonious intent to utter and pass this note as true. The prosecution seems to have been predicated upon the provisions of section 2078, Comp. Stat. 1921, as follows:

“Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, cheek, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the name to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or-who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

Numerous assignments of error are urged in defendant’s brief. Among other things, it is contended that the proof did not support the allegation of the information that the defendant offered this note for sale, or that it was sold to the Woodward bank in violation of this or any other statute. This claim seems to be based upon the fact that the defendant received no money; that the note was executed and delivered to satisfy the bank for a past and closed financial transaction; and that in that sense it was not a sale or offer for sale and not within the provisions of the statute. We acknowledge that in a technical sense this might be true, but this court does not favor reversals upon mere technicalities. The language of the statute, “Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note,” etc., indicates that it was the intention of the lawmakers that it apply to transactions of this nature. The information might have been drawn more specifically in this regard, but we think the information was sufficiently explicit to apprise the defendant of the nature of the charges he would be called upon to meet. Just why the defendant resorted to this fraud and deception to meet an obligation for which he was in no way criminally liable does not appear, but the evidence is conclusive that he did exchange or deliver this spurious note to the Woodward bank for a past consideration, and that he did so for some fraudulent purpose.

The defendant urges further that there was a variance between the information and proof in that the information charges the forging of the name of J. Hoffert and the exhibit attached to the information shows that the name there appears “J. Hoffrt.” The proof shows that J. Hoffert was the father-in-law of the defendant. The mere omission of one letter, the letter “e,” under the circumstances, is not sufficient to constitute a variance. The defendant was sufficiently apprised of the -identity of the person whose name was alleged to have been forged, although it was spelled in two different ways.

The defendant, in support of his alleged error, cites a number of decisions from the Texas Court of Criminal Appeals. The rules of practice in the Texas Court of Criminal Appeals are more technical than those followed by this court. Our statutes contemplate, and this court has uniformly held, that immaterial technicalities must be disregarded. An information should contain a statement of the acts constituting the offense, in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended. Section 2555, Comp. Stat. 1921. No information is insufficient by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2564, Comp. Stat. 1921. The name of the person whose signature was forged was a peculiar one. It is apparent that the defendant could not have been misled by the discrepancy in the spelling of the name. Moreover, it comes within the doctrine of idem sonans, as recognized by this eourt and by weight of authority in other appellate courts. Claycomb v. State, 22 Okla. Cr. 315, 211 Pac. 429; 19 R. C. L. 1334.

Defendant further, urges that the court erred in refusing to instruct the jury that in order to constitute the offense of offering a forged note for sale there must be an intent to cheat or defraud at the time the note is uttered or passed, and that it was offered to the bank with the intent to cheat and defraud the bank. Abstractly stated this is true, but there was no error here in refusing the proffered instruction, because the language used therein was susceptible of misconstruction. Forgery, as defined by the above statute, does not come within the rule laid down in Foster v. State, 15 Okla. Cr. 216, 175 Pac. 944, as applied to the crime of false pretense, where the charge was the receiving of money or other thing of value by means of a false pretense and where it appeared that the false pretense related to a past obligation and no additional money or thing of value was received on the strength of such pretense. The proof in a prosecution for false pretense must show the receipt of something of value, directly attributable to the false pretense. Not so under this forgery statute, under the provisions of which any fraudulent advantage accruing to the accused or any injury suffered by the person imposed upon is sufficient. The language used in the proffered instruction might have been construed by the jury to mean that they must find that the defendant, at the time of the transfer of the note, intended to cheat and defraud the Woodward bank out of the sum of $756.45, or some other sum. The evident purpose of the execution and delivery of this forged note was to gain time in which to make restitution of the money previously received from that bank or to fraudulently cause the bank to rest content, so that no immedite effort would be made by the bank to collect the money due by reason of the previous transaction. The court in other instructions told the jury that the uttering and transferring of this note must have been for the purpose of injuring or defrauding the Woodward bank. This we think was sufficient.

The defendant claims further that the court erred in refusing a proffered instruction to the effect that if the jury believed that another note executed about the same time had been paid by the defendant they might take that fact into consideration, in connection with all the other facts and circumstances in the case, to determine whether or not the defendant uttered the note in this case with an intent to cheat and defraud the bank. There was no error in the refusing of this instruction. Conceding that at the time the forged note was presented and accepted the defendant intended to pay the note, he would: still be guilty of forgery for the reason that the manifest purpose of executing and transferring the note was for some one or more advantages that would inure to his benefit. Drill, Cyc. of Criminal Law, § 569; 26 C. J. “Forgery,” §§17 and 21.

The other assignments of error relate to those already treated. Based upon the conclusions stated, the judgment of the trial court is affirmed.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.

On Rehearing.

PER CURIAM.

Upon a consideration of this appeal on rehearing the court finds that the conclusions of law reached, as set out in the opinion first rendered, are technically correct. It appears, however, that from a moral standpoint the offense was not so grave as to warrant .severe punishment.

It was argued on rehearing that the two banks involved were managed by interlocking directorates, although that fact does not appear of record. The accused was under no legal, possibly- under no moral, obligation to take up the indebtedness by the execution of a written instrument secured by the signature of another person.

All things considered, it is ordered that the affirmance of the judgment be modified to imprisonment in the penitentiary for a period of 30 days, and the judgment, as so modified, is affirmed.