text:
    BILL WAGNER v. STATE.
    No. A-9822.
    Sept. 10, 1941.
    (117 P. 2d 162.)

      Mac Q. Williamson, Atty. Gen., and Alvin C. Bruce, Co. Atty., of Ardmore, for the State.
    Sigler & Jackson, of Ardmore, for defendant.
   BAREFOOT, P. J.

Defendant, Bill Wagner, was charged in the county court of Carter county with the crime of unlawful possession of intoxicating liquor, to wit: 8% pints of whisky, was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The error alleged for the reversal of this case is based upon the contention of the illegality of the search warrant and the refusal of the court to> sustain a motion to suppress the evidence obtained thereunder. The affidavit as a basis for the issuance of the search warrant was as follows:

“Clarence Harris, Chief of Police, Ardmore, of lawful age, being duly sworn, on oath deposes and says: That in Carter County, State of Oklahoma, on the 1st day of July, 1939, the above named defendants Bill Wagner and. John Doe, whose true name to this, affiant is unknown, operate a business establishment and place of public resort, located at or on 219 North Caddo St. Ardmore, Oklahoma in a certain building described as follows Business establishment in Carter County, did, then and there unlawfully have in tbeir possession and' under tbeir control and do now keep for. tbe purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors described as follows, to-wit: Whisky, Beer and Wine and other compounds, the same being intoxicating, and which are capable of being used as a beverage, in violation of the law, contrary to the form of the Statutes in such cases made and provided against the peace and dignity of the State of Oklahoma.
“That said premises is (1) a Business establishment, and under the supervision and control of said defendants.
“Your affiant further states that various persons frequent said premises at all hours of the day and night and that persons have come from within and upon said premises in an intoxicated condition and with the odor of intoxicating liquor upon their breath; that said premises bears the reputation of being a place where intoxicating liquors may be purchased in violation of the Statutes of Oklahoma, and that the aforesaid defendants bear the reputation of being persons from whom intoxicating liquor may be purchased in violation of the Statutes of Oklahoma ; and that various persons have congregated on said premises and engaged in disorderly conduct, making lond and boisterous noises, and that numerous fights and quarrels have occurred at said premises, while said premises have been under the control of defendants.
“Wherefore, Affiant asks and prays that a Search Warrant be issued according to law.
“(Signed) Clarence Harris
“Subscribed and sworn to before me this 1st day of July, 1939.
“(Signed) I. R. Mason
“Justice of the Peace
“(Seal)
“(1) Warehouse and storage room.
“Business establishment.
“Place of public resort.”

The evidence reveals that a search warrant was issued, and that the original copy, which was signed by the magistrate, was taken by the officer and that this original was served upon the defendant, and that when the officer returned to the office of the justice of the peace he signed the copy after the search was made, and that the return of the officer was made upon this copy instead of the original search warrant, which was served upon and left with the defendant. The record further reveals that the copy of the search warrant was signed by the justice of the peace after the search was made. It is contended that this procedure was such as to void the search. It occurs to us that this is very technical. We find no reason why the original search warrant could not have been served on defendant as well as the copy. The ■fact that the justice of the peace placed his signature on the copy after the search was made, under the circumstances above stated, was an irregularity that was not material and was not one of which defendant may complain.

It is also contended that the search warrant was not executed by Clarence Harris, the chief of police of Ard-more,- who< made the affidavit and to whom the search warrant was issued. The evidence on the motion to suppress revealed that the chief of police had three search warrants. That the places to be searched were in close proximity to each other. That two- of his policemen accompanied him, and when they got out of the car he handed the search warrant issued for defendant’s place of business to one of his policemen for execution, and that presumably he went into one of the nearby places for the purpose of searching it. That the whisky was found in defendant’s place by the policemen, and the chief of police came to defendant’s place while the search was in progress, but after the identical liquor had been found. Under this state of facts we think that the statute was fully complied with, as the search was being executed under the direct supervision of the chief of police who was personally present during, part of the time that the search was made. This is also' a very technical objection which does not in our opinion void the search.

It is finally contended that the affidavit is insufficient upon which to* base the issuance of the warrant for the reason it does not state facts but mere conclusions, and did not justify the magistrate in making a finding of probable cause. It will be noted that the affidavit upon which the search warrant is based is not as full as might have been desired, but a careful examination of it reveals that it states sufficient facts to justify the issuance of the search warrant by the magistrate. The affidavit is made by Clarence Harris, chief of police of the city of Ardmore. It contains (a) the name, Bill Wagner, whose place of business is to be searched; (b) it states that he operates a business establishment and place of public resort; and (c) that it is located at 219 North Caddo street, Ardmore, Oklahoma. This fully identifies the defendant and definitely describes the place to be searched, and gives the court the information that it is a place of business and a place of public resort and affirmatively shows by these allegations that it was not the home or private residence of defendant. The affidavit then states that defendant had in his possession and under his control for the purpose of selling, bartering, giving away or otherwise furnishing certain intoxicating liquor, “to wit: Whisky, Beer and Wine and other compounds.” This statement is positively made and is not made upon information and belief. While its terms are general and not specific, it does allege them as facts. The affidavit then states as a fact and not on information and belief, as have so many search warrants that have been, passed upon by this court and have been held illegal and void, that (a) various persons frequent said premises at all hours of the day and night; (b) that persons have come from within and upon said premises in an intoxicated condition; (c) with the odor of intoxicating liquor upon their breath; (d) that said premises bear the reputation of being a place where intoxicating liquor may be purchased in violation of the statutes of Oklahoma; (e) that various persons have congregated on said premises and engaged in disorderly conduct, making loud and boisterous noises; and (f) that numerous fights and quarrels have occurred at said premises while under the contro] of defendant. While the above statements are general in their nature and it might have been better that the party making the affidavit had said positively that this occurred in his presence, yet the statements are made and there is no expression or statement that they are made on information and belief. They are made by an officer who evidently came in contact with defendant and his place of business almost daily. He, no doubt, was well acquainted with the place of business of defendant and had the personal knowledge of his reputation in the city of Ardmore. For these reasons it does not seem reasonable to say that the affidavit filed as a basis for the search warrant in the instant case is based on information and belief and was therefore void.

The cases cited and relied upon by the defendant do not, in our opinion, warrant us under the facts in holding! that the motion to suppress the evidence should have been sustained. The cases cited are: Wagner v. State, 68 Okla. Cr. 117, 99 P. 2d 161; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Baker v. State, 28 Okla. Cr. 108, 231 P. 320; Kirk v. State, 30 Okla. Cr. 198, 235 P. 621; Hancock v. State, 35 Okla. Cr. 96, 218 P. 1115; Anderson v. State, 45 Okla. Cr. 380, 283 P. 588. In the Poster, Baker, Kirk, Hancock and Anderson Oases it will be noted that in each of these cases the affidavit was made upon “information and belief,” and these exact words are stated in the affidavit. These affidavits not only do not state the facts upon which they are based, but do not make positive statements of the facts, as has been pointed out in the instant case.

The Wagner Case was against this identical defendant. In that case the affidavit and search warrant were introduced in evidence and not upon the motion to suppress the evidence, as in the case at bar. The court held that the admission of the affidavit and search warrant as evidence wá.s prejudicial error. This case also reveals that the affidavit in that case recited:

“That he, the said O. M. Holden suspects: that said ¡property is concealed in 219 A Street NE, One Store tin building, used as a restaurant in Ardmore, Oklahoma.” [68 Okla. Cr. 447, 99 P. 2d 162.]

No such statement appears here. The affidavit was in positive terms.

Defendant could have cited three cases which have been decided by this court which are more nearly in point to sustain the contention made in this case. We desire to briefly discuss these cases because they are being continually cited in appeals to this court. They are: Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65; Bohannon v. State, 66 Okla. Cr. 190, 90 P. 2d 675; Skelton v. State, 67 Okla. Cr. 215, 93 P. 2d 543. The conclusion reached in some of these cases may have been correct from a review of the record as a whole, but some of the statements and reasons given therefor are not in accord with our views at this time and are not supported by the facts or authorities cited therein.

The Davis Case, while not specifically overruled by mentioning the same, has in fact been overruled by later decisions of this court. In the case of Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 186, 187, in an opinion by Judge Jones, it is stated:

“It is contended by the defendant that the affidavit was made on information and belief. Such statement is unquestionably correct as applied to- the first paragraph! in which are set forth the ultimate facts, the present and existing guilt o-f the defendant and the situation which the affiant believes to exist and to be revealed upon the issuance of a search warrant and the making of the search. The remainder of the affidavit, however, is not made upon information and belief. It is a positive statement under oath of the facts which constitute the basis of the conclusions stated in the first paragraph. It is entirely distinct from the first paragraph, and its allegations are not limited bv any reference to- the information and belief.”

This is the exact situation in the instant case. See, also, Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291; Pitzer v. State, 69 Okla. Cr. 863, 103 P. 2d 109; Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 187; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300.

In the Davis Case, supra, the first paragraph o-f the affidavit for the search warrant was made upon information and belief as expressed therein, but the second paragraph, as will be noted from a reading thereof, is a positive statement under oath of the facts which constitute the basis of the conclusions stated in the first paragraph. The argument that the positive statements in the second paragraph o-f the affidavit should be limited by the wo-rd^ used in the preliminary paragraph does not appeal to us as being sound. We reassert that the affidavit to procure a search warrant should be positive in its term's and should state the facts within the personal knowledge of the party making the affidavit and the facts should be stated therein, but when they are positively stated they should be so considered. The affidavit in the Davis Case positively stated: (a) That the premises described was a place of public resort; (b) that people were seen going to and from said premises at all hours of the day and night in an intoxicated and semi-intoxicated condition; (c) that people gather at said place and premises and while there become intoxicated; (d) that said place and premises is a place where large quantities of whisky and other intoxicating liquors, the exact description of which is to your affiant unknown, are possessed, kept and stored for the purpose of sale in violation of the prohibitory liquor laws of the state of Oklahoma; (e) that the said Freeman Davis has a reputation throughout the community in Avhich he lives for being a bootlegger of whisky and intoxicants; (f) that the place and premises above described is generally known to be a place where whisky and other intoxicants can be purchased by the general public. .This affidavit was made in positive terms by the county attorney. We see no- reason why one making it could not be held responsible the same as if he had made any other positive statement of facts. The mere fact that the first paragraph of the affidavit states [65 Okla. Cr. 306, 86 P. 2d 66], “I have reasonable grounds to believe and do believe that Freeman Davis has in his possession large quantities of whisky, intoxicating liquor, * * * at, in and upon the premises occupied by the said” Freeman Davis, should not require an interpretation limiting the second paragraph which is positive in its terms and brings it clearly within the statute. It is simply a. statement of facts upon which the information and belief of the county attorney is based. That part of the opinion in the Davis Case which says, “A reading of the affidavit for the purpose of procuring a search warrant shows clearly upon its face that the affidavit is made on information and belief and not upon any knowledge of the county attorney making the affidavit,” cannot be approved. As we now view the facts in this case and the law announced in the later cases, we are of the opinion that they were sufficient to cause the magistrate to find “probable cause for believing” that the facts stated therein were true and justified the issuance of a search warrant based upon the affidavit. We think this position is supported by the case of Baker v. State, 28 Okla. Cr. 408, 231 P. 320, cited in the Davis Case and by many other cases from this court. Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90.

There are other arguments and statements, in the Davis Case with which we are not in accord. Our position is as stated in the case of McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90. In this case the affidavit said:

“Comes, now Neis Nelson, of lawful age, who being first sworn, upon his oath deposes and says: That intoxicating liquors are being sold, bartered, given away and otherwise furnished; and are being kept for the purpose of selling, bartering, giving away and otherwise furnishing in violation of the laws of the State of Oklahoma,, by certain persons to- wit; one Paul McHenry in certain buildings, to wit; the buildings, houses, barns, caves, silos, and other appurtenances thereunto belonging, located on the South half of the Northeast Quarter of Section Three, Township 27, Range 14, in Woods County, State of Oklahoma; the same being in part a private residence and that which is a private residence the same is a place of public resort.
“That said .complaint and affidavit is made for and on account of the following, to wit:
“That affiant is personally acquainted with the above described premises; that numerous persons are seen to go to said premises in a sober condition and to leave in an intoxicated condition; that numerous automobiles; are seen to go to> and from, said premises at all hours of the day and night, the occupants of which are persons who are known to indulge excessively in the use of intoxicating liquors; that affiant personally knows of his own knowledge that whisky is now at this time, stored on said premises and is there being kept for sale, contrary to the laws of this state and affiant further states that said Paul Mc-Henry has been prior hereto', convicted of violating the prohibitory laws of this state.”

And in the body of the opinion it is stated:

“A careful reading of these cases reveals that they are very different from the facts in the instant case. In those cases the affidavit is made, upon information and belief. In the instant case the affidavit of the officer is not only positive,, but it states the facts upon which his affidavit is based. It is not mere conclusions, as stated in defendant’s brief, but the evidence of this officer shows that he had obtained direct information that the law was being violated in the most flagrant manner by the defendant, before he made the affidavit to secure the warrant for the purpose of searching defendant’s premises. The case of Baker v. State, supra, cited by defendant, sets out a form as to what a search warrant should contain. The above search warrant complies with this form in a very substantial manner. We think the officers are to be commended for the precaution they took in protecting: the rights of the defendant in this case before they made an affidavit for the search warrant. They knew the defendant’s previous record. They procured information that would satisfy any court that this defendant was violating the sanctity of his home and fireside by using it as a place of public resort, where people could come and purchase from him intoxicating liquors in violation of law. This court has gone a long way in upholding the privacy and sacredness of the home. It has even stood the storm of criticism by partisans who believe that every sacred right of the individual to be secure in his home from illegal search and seizure, under the State and Federal Constitutions, should be wiped out of existence, where the liquor laws are involved. Bnt following the decisions of the Supreme Court of the United States in construing the Federal Constitution, which is very much the same as the Oklahoma Constitution, this court, before I assumed my duties as a member thereof, has strictly adhered to the doctrine that the rights guaranteed to the citizen under the Constitution were far more sacred than the punishment of a few individual bootleggers.”

While we have strictly construed the terms of the statute as applied to search warrants, we are of the opinion that there should not be a technical construction of the statute which would defeat the ends of justice and permit the guilty to escape through technicalities.

The case of Bohannon v. State, supra, is the same as the Davis Case. The affidavit for the search warrant is set out in that case and will not here be quoted. It states in positive terms that Elvia Parks, or person unknown to affiant (who was evidently defendant), (a) has in her or •their possession and is now using a certain 1986 Tudor Chevrolet automobile, Oklahoma tag number 347 — 039, (b)' to unlawfully transport alcoholic liquors from some place in the State of Oklahoma to another place therein, (c) that for a period of two weeks he has watched this automobile coming and going to and from certain houses or buildings (d) where it is known to your affiant that wine, whisky and beer are being sold, given away, or otherwise disposed of, (e) that your affiant has seen what appears to be bottles or cases being taken from above mentioned automobile and left in these houses or buildings. If thisi affidavit does not state positive facts, then we would not know how to write one. It could, of course, have stated more facts, but certainly there was sufficient to create “probable cause for believing” that the above described and numbered automobile was being used for the purpose of conveying intoxicating liquor in violation of the laws of this state and would justify the magistrate in issuing, a search warrant for the purpose of searching the same upon the filing of such affidavit. It is certainly not necessary that the terms of the affidavit should be construed in the same light as are the terms of an indictment or information filed in a court of record. The argument in this case that the affidavit did not state that the liquors alleged to be in the possession of the parties “are capable of being used as a beverage” and that the affidavit did not state what point in the State of Oklahoma it was alleged El via Parks or persons unknown to' the affiant started from to transport the whisky or to what point it was being transported are best answered by the terms of the affidavit itself. It states, “that wine, whisky and beer” are being sold, given away or otherwise disposed of, and after the description of the property it states, “to unlawfully transport alcoholic liquors from some place in the State of Oklahoma to another place therein.” Certainly these terms were sufficient to express the fact that the liquors which were intended to be transported were capable of being used as a beverage under the decisions of this court, Phelps v. State, 36 Okla. Cr. 213, 253 P. 910, and that when it was alleged “to unlawfully transport alcoholic liquors from some place in the State of Oklahoma to another place therein,” it meant what it said. As above stated, it might have been necessary in the indictment or information to allege the identical place or that it was unknown, but certainly this was not necessary in the affidavit for the issuance of the search warrant for the very good reason it might have been impossible for the person making the affidavit to' have stated positively where the liquor was being transported, for the reason it was unknown.

The same argument applies to the Skelton Case, supra. The conclusion reached in that case may have been right, but when the court, quotes from the affidavit as follows [67 Okla. Cr. 215, 93 P. 2d 545] :

“ ‘That said premises so- described aforesaid bear the general reputation of being a place where intoxicating liquors, to wit: whisky, wine, beer, are had, possessed and kept and received for the purpose of sale and are sold,” and then says: “This statement shows conclusively that the affiant had no knowledge of the facts stated in that part of the affidavit, because he said it bears the reputation. He does not give a single fact to indicate or show what has happened to the defendant’s home that would cause it to bear such a reputation,” the court then says: “The next statement in his affidavit, used as a basis for his complaint, is ‘that numerous persons whose true and correct names are to' this affiant unknown have been seen to enter said premises in a sober condition and later stagger forth from said place under the influence of intoxicating liquors.’ ”

The inference is that this last allegation was true and had been seen by affiant or the statement would not have been made. While we think it is best that facts be stated, as heretofore suggested, we do think that an officer who is personally familiar with the premises described and knoAvs the reputation thereof has the right to state it in the affidavit, and when it is sworn to positively, the magistrate has the right to issue the Avarrant based upon such positive affidavit.

If a public officer makes a sworn affidavit that a place which is particularly described and the name of the owner of the place of business or of the residence is a place of public resort and that intoxicating liquor is stored on said premises and that liquor is being sold on said premises in violation of law, and that people congregate at said described place for the purpose of drinking and consuming liquors or purchasing the same in violation of law, and that the premises have the reputation of being such a place as above outlined, and that the named party has the reputation in the community in which he resides as being a person who deals in the unlawful sale of intoxicating liquor, we cannot see why it would be error for the magistrate to issue the search warrant upon the filing, of such positive affidavit by the officer. We fail to see how it can be argued that these statements are made upon information and belief because in the first paragraph of the affidavit it is stated that the party making the same “has reason to believe and does believe.” The very facts which he states in the subsequent paragraph are such that give him the right to so< believe. If these statements are untrue, he may be held accountable in the manner provided by law. In other words, a search warrant based upon a positive affidavit by one Avho knows the facts and by reason of his position and experience has a right to know the facts should not be set aside and held illegal upon a mere technicality and surmise that he does not know the facts which he states in the affidavit as true. This court has often held that where the statement made in the affidavit for search warrant is positive in its terms, one will not be permitted in the trial of the case to' contest the truth of its terms.

In the case of Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 866, 368, it is said:

“This court has always been zealous to guard the constitutional rights of the citizens of this state in the protection of their homes and property from unreasonable search and seizure. This right is guaranteed by the Bill of Bights and Constitution of this State, Okla. St. Ann. art. 2, § 30, and the United States, Const. Amend. 4.
“The following citations are a few of the decisions of this court exemplifying this position: Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Skelton v. State [67 Okla. Cr. 215], 98 P. 2d 543. But at the same time we do not believe that a narrow, technical construction should be placed upon these sacred provisions of the Constitution which were adopted to protect the rights of the good citizens of this state, so as to shield the citizen who has so far forgot his citizenship to attempt to use his home or his property for the purpose of using it to violate the laws of his country. Handley v. State, 65 Okla. Cr. 268, 85 P. 2d 436; Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Newton v. State, 61 Okla. Cr. 237, 71 P. 2d 122; Rickman v. State, 70 Okla. Cr. 355, 106 P. 280.
“The statement heretofore referred to in the opinion with reference to the automobile’s use for the purpose of escaping detection of crime is highly applicable to' the violation of the liquor laws of this state, and while proper protection of the rights of the citizen of this state who is not a violator of the law is proper and just, we can see no valid reason why this court should resort to hair-splitting distinctions and technicalities in protecting the violator of the law who openly and notoriously uses his property, and especially his automobile, for a violation of the law of the land. We do not think that because an officer of the law walks toward the parked automobile of a defendant, that he thereby commits an unlawful act, and that when he arrives there he sees with his own eyes a violation of the law in his very presence, that he does not have the right to arrest the party whom he sees violating the law, and after such arrest, search the person and property of the defendant. To so hold, in our opinion, is throwing a cloak of protection around the defendant who violates the law to which he is not entitled.”

See, also, Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028.

We are in perfect harmony with the law and statement that a search warrant based upon an affidavit or complaint made on information and belief and without stating facts showing probable cause is illegal, but each search warrant and the affidavit or complaint upon which it is based is to be judged upon its own merits and contents, and where the affidavit or complaint states positive facts and by a person who, by reason of his position or experience, has a right to know that those facts exist, the warrant should not be set aside under these conditions, upon the ground that the facts stated therein were made upon information and belief. In other words, each search warrant and each affidavit or complaint should be judged upon its own merits, and the court should pass upon the merits of the same either before the trial on a motion to suppress the evidence obtained thereon, which is the best ¡practice, or when the matter is properly raised during the trial of the case. In the three cases above referred to the statements of the law with reference to search warrants are proper, but the trouble is the application of the facts in each of those cases to the principles of law announced. After a careful examination of these cases, we are of the opinion that the facts stated therein were sufficient to authorize the magistrate to issue the search warrant, and insofar as the statements made in those cases are contra,ry to the principle here announced, they are overruled as not being in accord with the opinion of this court at this time.

The judgment of the county court of Carter county is therefore affirmed.

JONES, J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    BRYAN B. BURNS v. STATE.
    No. A-9855.
    Sept. 10, 1941.
    (117 P. 2d 144.)

      J. P. Hughes, of Hobart, Finley McLaury, of Snyder, and Clayton Carder, of Hobart for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Bryan B. Burns, was charged by indictment presented by a grand jury of Kiowa county with the crime of uttering a forged instrument, was tried, found guilty, but the punishment was left to the court, who thereupon sentenced the defendant to two years in the State Penitentiary, from which judgment and sentence thus pronounced the defendant has appealed to this court.

The defendant makes the following* assignments of error:

(1) The indictment was insufficient to charge an offense, and the demurrer of the defendant should have been sustained.

(2) Court erred in admitting evidence of other alleged offenses.

(3) Court erred in admitting* in evidence the pay roll with Harold Jones’ name signed thereon.

(4) Court erred in refusing to give certain instructions requested by defendant.

In order to arrive at a better understanding of the questions presented, a short summary of the evidence is presented.

The defendant was charged with uttering and passing with intent to> defraud a certain state highway warrant in the sum of $100, payable to' one J. W. Fagg, upon which the endorsement of the said J. W. Fagg had been forged toi the knowledge of the defendant.

J. W. Fagg testified that he was 17 years of age at the time of the transaction out of which the prosecution arose. His father conducted a barbershop' which is just north of the theater which was owned and operated by the defendant. Witness did not work for the State Highway Department in the summer of 1938, nor at any other time. He did not receive the state warrant, dated August 26, 1938, payable to J. W. Fagg. in the sum of $100, nor did he sign his name which appeared on the back of said warrant. Witness knew nothing, of said warrant and never saw it until it was exhibited to him by an investigator, just preceding the presentment of the indictment against defendant.

Witness had a brother who was employed as chief operator in defendant’s picture show. This brother hired; witness occasionally to sweep the theater, and he received a pass to the show as compensation. Witness probably swept out two or three times a week.

Clarence R. Jackson testified that in 1938' he was employed by the State Highway Department as a truck driver with supervision of some of the projects in Kiowa, county; that he was in defendant’s office in the theater on August 30, 1938, at which time defendant called his attention to some checks which witness had delivered to' defendant a few* days before, and defendant wanted him to help sign them up. He argued the question a. little and then signed two of the checks. The name of J. W. Fagg on state’s exhibit No. 1 was signed by witness in the presence and at the request of the defendant. Defendant endorsed the name of Harold Jones on a state warrant, payable to Harold Jones in the sum of $42, which is state’s exhibit No. 2. Witness at the request of defendant endorsed the name of Charles Wilhite on state’s exhibit No. 3, being a state warrant, dated August 26,1938, payable to Charles Wilhite in the sum of $200. Defendant also had in his possession at that time a state warrant payable to Homer Smith in the sum of $200. Homer Smith was a fictitious person.

On cross-examination the witness swore that he received from the highway superintendent at Altus warrants to be delivered to the men on work in the third commissioner’s district of Kiowa county. Some of the workmen would borrow money on their time before the warrants were received. Witness delivered to- the defendant the four' warrants above referred to. Witness had worked for the Highway Department most of the time since 1927. DeRoy Burns had been his legislative sponsor since his election as senator. The defendant had loaned money to some of the workmen, and witness had delivered the highway warrants to defendant after the same were given to him by the district superintendent at Altus.

Witness identifies defendant’s exhibit No. 1, which was a piece of paper in the handwriting of the witness with several names and a sum of money set opposite each name, purportedly representing salary warrants due to the men whose names appeared on said writing. All of the names on said paper with the exception of Troy Wilhite were fictitious.

Witness identifies defendant’s exhibit No. 2, being a check of the defendant in the sum of $631.56 which corresponds to the totals shown on the slip of paper identified as defendant’s exhibit No. 1, less five per cent discount. Witness took the time represented by the fictitious names shown on defendant’s exhibit No. 1 and sold it to' Bob' Reid at Altus, and brought the money and paid the campaign expenses of DeRoy Burns through instructions of defendant and his brother, DeRoy Burns-.

Harold Jones testified that he had lived in Indiahoma all of his life and was employed in the schools at Indiahoma teaching music. He was commonly known as “Chink” Jones. In the summer of 1938, up until the primary election, the witness played in the band to help the DeRoy Burns campaign. Witness had never worked at any time for the State Highway Department, and had never signed' any pay roll. He did not receive state’s exhibit No. 2, being a warrant in the sum of $42, payable to' Harold Jones, nor state’s exhibit No. 5, being a $10.50 warrant payable to Harold Jones, and did not endorse either of said warrants. DeBoy Burns got him to work in the campaign and paid him in cash.

Thomas L. Vail, and Lewis Wilson testified that they worked on what was known as the mud-jack project, east of Snyder, in July, 1938, and knew J. W. Fagg; that Fagg did not work on said project.

C. H. Fawks, president of the First National Bank of Snyder, testified that the J. W. Fagg. warrant in controversy was cleared through his bank on August 30, 1938.

The defendant, through his counsel, then stipulated that state’s exhibits Nos. 1, 2, 3, and 4 were deposited at the First National Bank of Snyder, and the defendant received either credit or the equivalent for such warrants, and that said warrants were transmitted in due course to and paid by the State Treasurer. Witness Fawks identified state’s exhibit No. 6, which was a deposit slip showing a deposit to the credit of the defendant in the total sum of $674 on August 30, 1938, including check items in the sum of $10, $100, $200, and $125; also, state’s exhibit No. 7, showing a deposit to the credit of the defendant on September 1, 1938, which included a check in the sum of $42.

T. M. Fagg testified on behalf of the defendant that he was employed- by the defendant in the summer of 1938 at the defendant’s theater in Snyder. Witness was authorized to hire people to sweep and clean up the theater; and he did hire J. W. Fagg and other boys to do this job, and gave them passes to the theater for their work. The defendant had nothing to do' with the hiring of these boys'.

The defendant, in his own behalf, testified that he had known Clarence Jackson several years. That in June, 1938, Jackson came to his office at the theater and asked him if he wanted to loan some money on the pay roll; that he had never had any experience with the pay roll and did not know anything about it. Jackson explained to him that he could get the warrants at five per cent discount and would not have to lend money for more than 30 to 60 days. Jackson made out a list and the amounts owing to the fellows that were working, and defendant gave him a check, less 5 per cent, to cover that amount. Jackson brought him the warrants in full; some of them were endorsed and some were not endorsed. Jackson said it was all right to go ahead and endorse the warrants which were not endorsed as the men had already sold them to< him, and he was authorized to endorse their names; that he did endorse names on several of the warrants, just how many he did not remember. After that defendant continued to lend Jackson money, and Jackson would bring these checks in there to him. Defendant did not keep any books or records of what he had lent, but estimated he had bought $1,500 or $2,000 worth of warrants.

Defendant stated that he did not know that the J. W. Fagg warrant was fictitious or that Fagg had not worked on the highway. He did not know Harold Jones, except by the name “Chink” Jones. He admitted endorsing the Harold Jones name on the warrant, but did not know that it was a fictitious warrant.

The substance of the testimony of the defendant was that he purchased these warrants from Clarence Jackson who was purportedly acting as the agent for workmen working on the highway projects in Kiowa county: that he purchased these warrants in good faith as a business venture without any knowledge of their fictitious character and wholly without any intent on his part to defraud the state.

At the request of the prosecution the defendant wrote several names, which writing was submitted in evidence. The defendant further introduced several witnesses who testified to the good reputation of the defendant prior to the filing of the indictment. The defendant admitted pleading guilty to the offense of driving a car while under the influence of intoxicating liquor and receiving a six months’ suspended sentence.

In rebuttal the state offered in evidence various exhibits, including, certain warrants, the pay roll with Harold Jones’ name appearing thereon, and the exhibits containing the specimen handwriting of the defendant.

In connection with the first assignment of error, it is urged by the defendant that the prosecution is brought under section 2125, O. S. 1931, 21 Okla. St. Ann. § 1577, which reads as follows:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same 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.”

That under said statute it is necessary that the name of the person to whom the forged instrument was uttered must be set out in the indictment because it is part of the description of the offense; and that because of this omission the indictment is insufficient on its face to charge the the offense of uttering a forged instrument or any other public offense against the defendant.

The indictment herein was not brought under the provisions of § 2125, supra, but was based on section 2139, O. S. 1931, 21 Okla. St. Ann. § 1592, which reads as follows:

“Every person who, with intent to defraud, utters or publishes as true any forged, altered or counterfeited instrument or any counterfeit gold or silver coin, the forging, altering^ or counterfeiting of which is hereinbefore declared to be punishable, knowing such instrument or coin to be forged, altered or counterfeited, is guilty of forgery in the second degree.”

The indictment against the defendant is as follows:

¿Í-X- *X*
“That on the 30th day of August, A. D., 1938, at and within said county, and within the jurisdiction of said court, one Bryan B. Burns, then and there being, did then and there, unlawfully, willfully, wrongfully, utter and pass as true, a certain false and forged instrument, to wit: a warrant of the State of Oklahoma, of the term and tenor as follows:
“ ‘State of Oklahoma
Warrant Office of No. 12491
Great Seal of 1939 The State Auditor the State of
Oklahoma To the State Treasurer
Oklahoma, Okla. Oklahoma City
Date Number Claim No. Pay or
Aug 26 38 12,491 16364 to J. W. Fagg Order
Exactly $100 & 00 Cts $100.00
C. C. Childers
H. C. & M. Fund State Auditor
Registered Payable Asst: State
Hubert L. Bolen Auditor Scott Stine
State Treasurer
Asst. State
Treasurer C. B. Sebring
(Endorsement on the Reverse Side)
“ ‘J. W. Fagg First National Bank and Trust Company
B. B. Burns Oklahoma City, Oklahoma. Aug. 31, 1938.’
said endorsement of the said J. W. Fagg being then and there false and forged, all of which he the said Bryan B. Burns then and there well knew, said warrant with the false and forged endorsement thereon being uttered and passed by him, the said Bryan B. Burns, with the unlawful and felonious intent on the part of the said Bryan B. Burns to cheat and defraud the State of Oklahoma, and Contrary to the form of the Statutes in such case made and pro. yided, and against the peace and dignity of the State. * * *”

This court has uniformly held that the true test of the sufficiency of an indictment or information is not' whether it may have possibly been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Warren v. State, 24 Okla. Cr. 6, 215 P. 635.

A consideration of the indictment discloses the following :

1. It alleges that the defendant did, in Kiowa county, utter and pass as true a certain false and forged instrument.

2. The warrant to J. W. Fagg is copied in full in said indictment, which shows the purported endorsement of J. W. Fagg, B. B. Burns, and the First National Bank and Trust Company of Oklahoma City on the back thereof.

3. Said indictment alleges that the endorsement of said J. W. Fagg was false and forged.

4. That Bryan Bums knew that said endorsement was false and forged, but uttered and passed said warrant with knowledge of said forgery.

5. Bryan Bums uttered and passed said instrument with the intent to cheat and defraud the State of Oklahoma.

There are some states which apparently hold that an indictment for uttering a forged instrument should allege the person to whom the forgery is uttered or passed, or excuse the omission with the statement that the person to whom it was uttered was unknown. Goodson v. State, 29 Fla. 511, 10 So. 738, 30 Am. St. Rep. 135; Annotations to Rhode Island v. Murphy, 16 L. R. A. 553.

However, the majority rule seems to be in those states having- statutes similar to' ours that such an allegation is not necessary. State v. Weaver, 149 Iowa, 403, 128 N. W. 559, 31 L. R. A., N. S., 1046, Ann. Cas. 1912C, 1137.

In 23 Am. Jur. 695, 4'4, it is stated:

“There is a sharp conflict as to whether the name of the person to whom the paper was offered or passed must be alleged. On the one hand, it is squarely held that such an allegation is necessary, or else an averment of lack of knowledge in the premises, while, on the other hand, it is held with equal positiveness that this allegation is not necessary. Th© latter holding, while unquestionably representing the majority rule, is largely influenced by the statutes dispensing with the necessity of alleging the name of the person ‘intended to be defrauded,’ this phrase being construed to apply to- the person to whom the paper is offered or passed as well as to the person whose name is forged.”

Our court in the case of William v. State, 11 Okla. Cr. 82, 142 P. 1181, held that it was not necessary to set out the name of the person intended to be defrauded in a forgery case, and cites the case of State v. Weaver, supra, as authority for such decision. For further authority in support of this rule, see the extensive annotation in the note to State v. Weaver, supra.

This court has adopted a very liberal attitude in the construction of indictments or informations. The statute on this subject itself provides that no indictment is insufficient by reason of a defect or imperfection in the matter of form that does not tend to prejudice the substantial rights of defendant in the trial of the case. Section 2892, O. S. 1931, 22 Okla. St. Ann. § 410; section 3210, O. S. 1931, 22 Okla. St. Ann. § 1273.

With the court committed to this view, it is readily app'arent that the indictment herein is sufficient to fully advise the defendant of the nature of the offense with which he stood charged, and to enable him to prepare his defense thereto: We see no error of the court in overruling the demurrer to the sufficiency of this indictment.

It is next urged by the defendant that the trial court committed reversible error in admitting in evidence state’s exhibits Nos. 3, 10, and 11, which were warrants payable either to Charles Wilhite or Cecil Wilhite, for the reason that there was m> evidence that these persons had not, in fact, worked for the Highway Department or any evidence which would tend to impugn the good faith of the defendant in cashing these warrants.

In Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, it is held that in a prosecution for uttering a forged instrument with intent to defraud, evidence of similar acts of forgery or of uttering is admissible as bearing on the question of intent with which the act charged was committed.

For the purpose of proving, the fraudulent intent of the defendant and a general scheme and design on his part to defraud the state, the state introduced in evidence eight warrants. The defendant in his brief concedes the admissibility of the following warrants: three of them, state’s exhibits Nos. 2, 5, and 8, being payable to Harold Jones, which defendant concedes were admissible for the! reason that the evidence showed conclusively that Harold Jones did not work for the state; two of them, state’s exhibits Nos. 4 and 9, were warrants payable to Homer Smith, their admissibility being admitted for the reason, as stated in defendant’s brief, the testimony showed there was no such person. The remaining three warrants, state’s exhibits Nos. 3, 10, and 11, are attacked in the brief of the defendant for the reason that since it is not shown that Charles and Cecil Wilhite did not work for the Highway Department that said warrants do not constitute other offenses, and the admission of the same was prejudicial for the reason that it left an inference with the jury that said warrants were in fact illegally cashed by the defendant.

In examining the record upon this proposition, we find that state’s exhibit No. 3 was the Charles Wilhite warrant for |200, dated August 26, 1938, and is one of the four warrants which Clarence Jackson brought to the defendant’s office on August 30, 1938, and which were endorsed by the defendant or Jackson and deposited on that date to the credit of the defendant.

State’s exhibit No. 1 (the J. W. Fagg warrant), state’s exhibit No*. 2 (the Harold Jones warrant), state’s exhibit No. 3 (the Charles Wilhite warrant), and state’s exhibit No. 4 (the Homer Smith warrant), were all handled at the same time; and from the evidence, it is admitted that the payees’ names were signed either by Jackson or defendant to each instrument.

In the cross-examination of the witness, Jackson, both Jackson and the attorney for the defendant referred to these warrants as the four fictitious warrants that were cashed on August 30th.

State’s exhibit Nos. 10 and 11 were two of the warrants which were deposited to the credit of the defendant by his friend, Ray Moore, on July 26, 1938. The testimony showed that the defendant gave these warrants to Bay Moore to deposit to his credit; and at the time they were ¡handed to Moore by the defendant, the endorsements of the names of the payees were on the warrants. These warrants were cashed and the money given to the defendant by Moore. These warrants were handled along with other warrants, which the defendant concedes are forgeries, and! are all admissible for the reason that they are SO' closely linked together that they are all a part of the same transaction.

It is next contended that the court erred in admitting state’s exhibit No. 12, being the state highway pay roll, with specific reference to the signature of Harold Jones appearing thereon. The proof showed that the defendant wrote the name of Harold Jones on certain highway warrants, payable to Jones and known as state’s exhibits Nos. 2, 5, and 8. The defendant claimed that he had never heard of Harold Jones, but admitted that he knew the teacher of music in the Indiahoma schools, and claimed to know him by his nickname of “Chink” Jones. The question as to whether the defendant signed the name of Harold Jones on the pay roll became very important for the reason that if it could be established by the state that the defendant had signed the name of Harold Jones to the pay roll, no plausible excuse or pretense of good faith could have been made by the defendant in his explanation to the jury. The proof established that the defendant had endorsed the name of Harold Jones on the warrants, known as state’s exhibits Nos. 2, 5, and 8, and the defendant .having written the name of Harold Jones five times upon a blank sheet of paper which was admitted in evidence without objection as state’s exhibit No. 13, the jury was entitled to have the pay roll admitted in evidence for the purpose of comparing it with the admitted signatures of the defendant for the purpose of enabling them to determine the question of fact as to whether the defendant had signed said name on the pay roll.

In the early Colorado case of Wilber v. Eicholtz, 5 Colo. 240, 23 P. 240, it is stated:

“The execution of the note having been denied by a portion of the defendants by a plea verified by affidavit, the jury was permitted to- compare the signatures of the defendants subscribed to this affidavit, and likewise their signatures subscribed to the affidavit of merits filed in the cause, with what purported to' be the signatures of the same defendants to the note in suit.” See, also, Bradford v. People, 22 Colo. 157, 43 P. 1013.

In 20 Am. Jur. 618, § 742, it is stated:

“The most satisfactory proof of handwriting is, oft course, the testimony of the person whose writing is in issue, if he is available as a witness. If he is unavailable, the next best proof is the testimony of a witness who saw the instrument in question executed and is able to identify it. The next best testimony is thought to be that of witnesses who have seen the party whose writing is in controversy write or who have had access to, or possession of, his writing so as to impress the character of the writing upon the mind and are able to form an opinion by comparing the impression of the writing on their mind with that which is admitted for examination. According to the earlier common-law rule, these were the only methods of proof that could be made. According to this earlier rule, the trier of facts was not entitled to determine the genuineness of a disputed writing or signature by a comparison thereof with a specimen of the person’s writing admitted or proved genuine. This view of the matter is now, however, generally repudiated, although there is some difference of opinion regarding what may be used as a standard of comparison. It is now generally, if not universally, recognized in cases where an issue is raised of the genuineness of a written instrument or of a signature to an instrument that proof of the genuineness of the writing or signature may be made by comparison with other writings of the same person, which are either admitted or proved to be genuine specimens and which are submitted to the court and jury to enable them to determine the question by their own observation and judgment. It is also generally agreed that expert testimony may be received, without encroaching upon the functions of the jury, based upon conclusions drawn by an expert witness from his comparison of the writings.”

This contention of the defendant and the authorities cited in his brief are all based upon the proposition that the specimen used for comparison was disputed, and that it was an attempt by the state to prove the genuineness of his signature by comparing this writing with that of another alleged writing of the defendant, but which was also disputed. The endorsement of the name of Harold Jones on the back of the warrants is not disputed. Clarence Jackson testified positively that the defendant endorsed the name of Harold Jones on state’s exhibit No. 2. The defendant says that he endorsed some of the names on the warrants and that the signature of Harold Jones on the back of state’s exhibit No. 2 and, also, on the back of state’s exhibits Nos. 5 and 8 appear to be in his handwriting. Thisf was sufficient proof to authorize the use of these exhibits as a standard for comparison with the disputed writing. Hickory v. United States, 151 U. S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Boyd v. Gosser, 78 Fla. 64, 82 So. 758; People v. Driggs, 14 Cal. App. 507, 112 P. 577.

Lastly, it is contended that the court committed reversible error in refusing to instruct the jury that the witness, Clarence Jackson, as a matter of law, was an accomplice of the defendant.

The requested instruction of the defendant is as follows :

“You are instructed as a matter of law that if you believe the evidence of the witness, Clarence Jackson, to be true that by his own testimony the witness, Clarence Jackson, is an accomplice in the commission of the offense with which the defendant stands charged, but you cannot find the defendant, Bryan B. Burns, guilty by reason of the testimony of the said Clarence Jackson alone until you! are satisfied beyond a reasonable doubt that the same has been corroborated by other evidence tending to establish the fact that the defendant did in fact commit the offense charged in the indictment, and in this connection you are instructed that the corroboration herein mentioned need not be by eyewitness alone to the commission of the offense, but such corroboration may be by circumstances, and you may take into consideration all the facts and circumstances proven in the case in determining' whether' or not the defendant is guilty of the offense charged in the indictment.”

The court refused to> give the above instruction requested by defendant, but in lieu thereof gave the following! instruction:

“Should you find in this case that certain witnesses introduced upon the part of the state aided, abetted, or assisted in uttering: and passing the forged warrant in controversy, then you are instructed in the law they are known as accomplices, and you cannot convict the defendant upon the evidence of a witness or witnesses whom you find to be 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 such offense, or the circumstances thereof.
“An accomplice, as the word is here used, means anyone connected with the crime committed, either as principal offender or as an accessory, or one who aids and abets in the commission of the offense. It includes all persons who are connected with the crime by unlawful acts on their part committed, either before or at the time of the commission of the offense.”

In the case of L. Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860, this court drew the distinction between the offense of forgery and that of uttering a forged instrument. These are two wholly distinct crimes.

As was stated in the third and fourth paragraphs, of the syllabus of Jones v. State, supra:

“To constitute the offense of forgery, the following three essential elements must exist: There must be a false writing or alteration of an instrument; the instrument, as made, must be apparently capable of defrauding; and there must be an intent to defraud.
“To utter a forged instrument is to put it in circulation, or to offer to- dot so, with fraudulent intent to' injure another.”

In Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483, 484, it is stated:

“We believe the indictment is bad for duplicity, in charging two> distinct offenses in one count; that is, the uttering of the check, knowing it to be forged, and the forging of the indorsement thereon, and then uttering the same. The offenses are distinct, arising upon different acts, and each constitutes the offense of forgery in the second degree. Under the * * * provisions of the Code, it was necessary to set forth the separate counts, the uttering and the selling or exchanging of said check, knowing it to be forged, and the forging of the indorsement thereon, and the selling, exchanging and delivery with the forged endorsement.”

There is no question but that under the evidence Clarence Jackson was a party to the forgery of the endorsement; however, the proof does not show that he took any part in the passing of the warrant. He was not present when this instrument was deposited, nor did he participate in the proceeds received from the warrant.

However, the fact that Jackson was admittedly an accomplice in the forgery of the endorsement of J. W. Fagg does not preclude Mm from also- being an accomplice in the crime of uttering said instrument with a forged endorsement thereon.

This court has on numerous occasions defined an accomplice as one culpably implicated in the commission of a crime of which the defendant is accused, or one who knowingly and voluntarily co-operates, aids, or assists in the commission of the crime. McKinney v. State, 20 Okla. Cr. 134, 201 P. 673; Logan v. State, 23 Okla. Cr. 316, 214 P. 944.

If the defendant had not requested that the court instruct the jury as a matter of law that the witness Jackson was an accomplice of the defendant in the alleged crime charged, but the court had on its own motion given such instruction over the objection of the defendant, then the defendant could have found authority in the decisions of this court to sustain a contention that such action of the court would have been error. Carter v. State, 55 Okla. Cr. 234, 28 P. 2d 581, 583.

In that case it is stated:

“Counsel here argue that where defendant denies generally any connection or accomplicity with the witness who is designated as an accomplice, the court, regardless of the testimony of the witness, in no event may instruct thel jury that the witness is an accomplice. Surely this cannot be what is meant, for if defendant enters a plea of not guilty and contests the truth of the state’s testimony of a claimed accomplice to prove his guilt, he does not admit the testimony of such witness, for to do so- would be tantamount to a plea of guilty. Nor does the fact that he denies the testimony of the witness designated as accomplice make the testimony disputed within the meaning of the term as used in the cases generally. That is to say a denial of guilt and general testimony by accused that he had no connection with the witness testifying as an accomplice is not the dispute meant in the various decisions. But on the other hand where he testifies to the state of facts detailed by the witness, or admits a connection with the witness tending to show an accomplicity, bnt explains his connection and disputes and denies the significance and tendency of the evidence to prove accomplicity, then an instruction on such contested evidence that the witness is an accomplice, may amount to a charge on the weight of the evidence or may be an assumption that the testimony of the witness was true and that of defendant necessarily untrue. But not so when he does not testify to the state of facts detailed by the witness, but merely denies generally any connection with the witness.” See, also, Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170.

Here we find the defendant admitting the facts to which Jackson testified concerning the endorsement of Fagg’s name on the warrant in question, but he explains his connection and denies the significance which the state attaches to- this- incident. Under the reasoning in Carter v. State, supra, it would have been error under this state of facts to have charged that Jackson was an accomplice as a matter of law.

Instruction 4, complained of by the defendant, here-inabove set out, is a correct, abstract statement of the law. It is not insisted by the defendant that the evidence is insufficient to corroborate the testimony of the alleged accomplice, but it is expressly admitted in the defendant’s reply brief that the evidence is sufficient under the statutes and decisions of this court to- sustain the conviction.

It is doubtful whether under the evidence Jackson could be convicted for the offense of uttering a forged instrument. If a conviction could not be upheld under the record for this offense, then he is not an accomplice.

There is another reason why the court did not err in refusing to- give the requested instruction of the defendant. The substance of Clarence Jackson’s testimony was that J. W. Fagg’s name was forged to> the warrant in controversy, to the knowledge of the defendant.

The defendant in his own behalf admitted the forgery of the endorsement, his knowledge of the same, and the fact that he uttered and passed the instrument with J. W. Fagg’s name forged thereon. His contention was that he had no' intention to defraud; but under the admissions of the defendant, his connection with forgery of Fagg’s name, so far detailed by Jackson, is uncontroverted.

In the case of Morgan v. Territory, 16 Okla. 530, 85 P. 718, the following is stated:

“Where the evidence in a criminal case, on behalf of the territory, sufficiently corroborates the evidence of an accomplice, and plainly shows the connection of the defendant with the commission of the crime, and where the defendant, when testifying in his own behalf, admits striking the blow with the weapon that caused the death of the deceased, the giving of an instruction defining the rule of corroborating evidence, which is not technically correct, but which is not misleading does not constitute error.”
“The evidence of the territory in this case shows that the corroborating evidence was ample, and plainly shows the connection of the defendant with the commission of the crime. Not only this, but defendant when on the stand admitted striking the blow with the weapon which caused the death of the deceased, so that there could be no such' condition arise as where the jury could, under any circumstances, have erroneously considered the evidence of the accomplice. It is in cases where the jury may, in considering the evidence, exclude or disbelieve certain portions of it, and in so doing, the remainder being insufficient to connect the defendant with the commission of the crime, render it necessary for the court to guide them by its instructions upon the rules governing the testimony of an accomplice, or when it may and when it may not be considered by them.
“If, then, in the case under consideration, there can be no' condition arise in which the jury would be warranted in refusing to consider the evidence of the accomplice because of the corroborating evidence being insufficient to connect the defendant with the commission of the crime, the instruction with reference to the evidence of the accomplice would become almost, if not wholly, immaterial, and, even if erroneous, could not prejudice the rights of the defendant. In this case there was no contradiction whatever of any of the territory’s witnesses, except by the defendant himself, who, when upon the witness stand, admitted, in substance, everything that had been testified to concerning his connection Avith the transaction, except that he claimed he struck the blow in self-defense, having after getting into the altercation and being struck at by the deceased with a neckyoke, and believing himself to be in imminent danger of great bodily harm, opened his knife and stabbed the deceased.”

The reasoning in the above case is sound, and we think the principles therein announced are applicable to the instant case.

The defendant’s evidence showed his connection with the alleged offense, and the only question for the jury to determine was whether the actions of the defendant were in good faith and without intent to defraud.

In the defendant’s brief it is stated by his counsel that the only issue is whether the defendant had an intent to defraud.

In considering this instruction, along with all of the other instructions and the evidence, we do not find that there was error in the court’s failure to specifically instruct that Jackson was an accomplice.

It is not necessary for us to make any comment upon the evidence in this case. The guilt of the defendant was thoroughly established.

Under the facts confronting the defendant, his counsel have ably represented him. However, no reasonable jury under the record could have done other than find the defendant guilty.

The errors presented and argued by counsel for defendant are, all of them, what may be termed technical in their nature. Some authorities may be found to support the contentions made by counsel for defendant; but we are unable to see where, under’ the record, the defendant has been prejudiced in any of his substantial rights by reason of any of the matters about which he complains.

We have carefully examined the instructions given. As a whole they fairly and fully submit the issue to the jury, and cover the law of the case.

As is usual in a case where a person of prominence is involved, the case did attract wide interest. The case was hard fought; but we are unable to find, under the record, any errors which we consider of sufficient importance to' require a reversal.

The judgment of the district court of Kiowa county is therefore affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    DeROY H. BURNS v. STATE.
    No. A-9859.
    Sept. 10, 1941.
    (117 P. 2d 155.)

      R. Place Montgomery and Hughes & Hughes, all of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

DeRoy Bums, Bryan B. Bums, and Charles Merchant were charged by an indictment presented and filed by a grand jury of Kiowa county with the crime of conspiracy to defraud the state; a severance ivas granted; the defendant, DeRoy Burns, was tried, convicted' and sentenced to serve two years in the State Penitentiary and to' pay a $3,500 fine, from which judgment and sentence an appeal has been taken to this court.

It is first contended by the defendant that the court erred in overruling his demurrer to the indictment for the reason that the indictment alleges; the consummation of certain overt acts which amount to felonies, and that under the doctrine of merger the crime of conspiracy has been merged in the overt act, and that the defendant, if indictable at all, should be indicted for the felony described under each of the overt acts alleged in the indictment.

It is not necessary to set forth the indictment in this opinion. The same is lengthy and in substance alleges that the three defendants conspired together to defraud the State of Oklahoma of money by representing that .certain persons therein named were employed and actually engaged in work upon the public highways of the state in Kiowa, county.

Several overt acts were alleged in the indictment, wherein the defendants were alleged to have submitted' pay roll claims with a person’s name signed thereon who did not work and did fraudulently receive from the state certain state highway warrants in a stated amount, which warrants were endorsed by the defendants, transmitted to the State Auditor, and were paid out of the public funds of the State of Oklahoma. These warrants are fully described and the acts concerning the procurement of the money upon them are detailed at length in the indictment.

The prosecution hereinabove is based upon section 1963, O. S. 1931, 21 Okla. St. Ann. § 424, Avhich provides;:

“If two or more persons conspire either to commit any offense against the State pf Oklahoma, or to defraud the State of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to- a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury.”

Under the doctrine of merger where the overt acts! pleaded in the indictment amount to completed, separate crimes, it is held that the conspiracy merged in the completed crime. We do not think that the case of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978, cited by counsel, is an authority to sustain this proposition, although the author of the dissenting opinion makes certain statement^ in his opinion which tend to show that the majority opinion was predicated upon the theory of merger. However, the opinion of the court merely held that the conspiracy statute would not apply to violations of the intoxicating' liquor laws because of certain constitutional provisions relating to said laws.

This court has never definitely passed upon the question, and with the exception of the case of Taylor v. State, supra, no authorities are cited by the defendant to sustain his position.

The general rule which has. been adopted in the states which have had occasion to discuss this question, and the one which we think is in accordance with sound public policy and which will promote the ends of justice and be conducive to the efficient enforcement of the criminal law, is as stated in the case of People v. Tavormina, 257 N. Y. 84, 177 N. E. 317, A. L. R. 1405, in which it is stated:

“The crime of conspiracy does not merge in the felonies described as overt acts in the indictment, where the conspiracy is a crime and not an essential part of the felonies to accomplish which it was entered into.”
“A conspiracy to commit a felony constitutes an independent crime, complete in itself and distinct from the felony contemplated.”
“The fact that indictment for conspiracy alleges overt acts constituting a felony, or that the evidence discloses that the conspiracy was executed by the commission of a felony, does not render the indictment demurrable or prevent a conviction for conspiracy.”

There is a lengthy annotation at the conclusion of this case in which authorities are cited from many jurisdictions sustaining this view. 75 A. L, R., supra.

The next assignment of error is that the verdict is not sustained by sufficient evidence, in that there is no proper corroboration of the testimony of the admitted accomplice, Clarence Jackson.

Several witnesses testified on behalf of the state. No evidence was introduced in 'behalf of the defendant.

To better enable the court to make a proper discussion of this assignment of error, a short statement of the evidence is presented.

Harold Jones testified that he was a music teacher at Indiahoma; that he was employed by DeRoy Burns to play a trumpet in the hillbilly band in the defendant’s compaign for State Senator, beginning about May 20,1938. That Cecil Wilhite, Troy Wilhite, and Coy Daily were the other members of the band; that he had never at any timei been employed on the state highways, and did not receive nor endorse state’s exhibit No. 5, being a warrant in the sum of $10.50, dated June 21, 1938, payable to Harold Jones; nor state’s exhibit No. 8, being a warrant in the sum of $64.40, payable to Harold Jones, dated July 21, 1938’; nor state’s exhibit No'. 2, being a warrant in the sum of $42, dated August 26,1938, and payable to Harold Jones; nor state’s exhibit No. 15, being a warrant in the sum of $72, dated September 16, 1938, and payable to Harold Jones.

On cross-examination witness stated that he was generally known as ‘Chink” Jones; that defendant paid him in cash for his services, and that he did not know that his name was being carried on the highway pay roll.

On redirect examination the witness stated that on two occasions prior to 1938 the defendant, DeRoy Burns, had delivered two State of Oklahoma highway warrants, which were made payable to Harold Jones, to him.

Clarence Jackson testified that for four years prior to 1939 he was employed as truck foreman with supervision over certain projects of the State Highway Department in Kiowa county; that Charles Merchant was foreman and timekeeper on tbe mud-jack project, east of Snyder; that during the Marland compaign, in 1936, the name of Harold Jones, was carried o>n the highway pay roll at the direction of the defendant, although Harold Jones did' not work at any time on the highway; that in both 1936 and 1938 Harold Jones was employed to play in the hillbilly band; that warrants payable to Harold Jones were) delivered to DeRoy Burns or his brother, Bryan Bums; that when DeRoy Burns had the witness, place Harold Jones’ name on the pay roll, the defendant told him it was all right; that one of the warrants was delivered to, the defendant; that four warrants, including state’s exhibits Nos. 1, 2, 3, and 4, were delivered to, Bryan Burns at the same time, and that at the request of Bryan Bums, the witness endorsed the name of J. W. Fagg on state’s exhibit No-. 1; Charles, Wilhite on state’s exhibit No- 3; that Bryan Burns endorsed the name of Harold Jones on state’s exhibit No. 2; that the defendant would give him the names of fictitious persons to- place on the pay roll for the purpose of securing state highway warrants to- pay campaign expenses for the defendant in his race for State Senator. That about the first of October, 1938, Bryan Burns came to witness’ home with four warrants on which the names of the payees, had already been endorsed; that Bryan Bums there stated that DeRoy had gotten them “in a hell of a jam,” and that Bryan wanted the witness to take the warrants and get them cashed, as he was afraid to cash them, since he and DeRoy were being investigated. One of said warrants was state’s exhibit No. 15, payable to Harold Jones in the sum o-f |72. Witness took the warrants to- Bob Reid at Altus, got the money, and brought it back and gave it to Bryan Bums; that in the early part of 1939, when an investigation concerning these unlawful-activities was started, the defendant and Bryan Bums talked to him several times and wanted him to take the ra,p by himself, and that he refused, since he hadn’t received a dime out of it; that later he and the defendant talked together, and the defendant stated: “You are the only guy between me and the penitentiary, and I think you ought to leave until I can get it straightened out,” that the defendant furnished him with money, and a,t their request the witness went to Fort Worth. Later' defendant telegraphed him and wanted him to go farther, and sent him $60 in currency by his son, Eugene Jackson. Witness Avrote the defendant for more money Avhile in California,, and defendant sent him $50, together with a typewritten note, introduced in evidence, instructing witness to meet defendant in the Southland Hotel in Dallas. 'Witness met defendant at the hotel, and defendant proposed paying the witness monthly and for him to stay until the investigation was completed. That defendant later sent witness '$50 by his wife; that witness went to Paris, Tex., then to-Texarkana; later to Hot Springs, and then to Antlers, Okla., before talking to a laAvyer a.t Antlers and deciding to come on into Hobart and testify before the grand jury.

The witness further testified that he and defendant went to Bob Reid’s office a,t Altus., where DeRoy gave Reid a check for over $300. Bob Reid had loaned money on the pay roll, which included some of the fictitious names, and that there had been a shortage which DeRoy was making up. A day or two later, the defendant gave witness the cash arid had him go to the Planters, State Bank at Mountain Park and take up the check which defendant had given Bob Reid.

The witness further identified twelve fictitious names which were placed on the highway pay roll in the summer of 1938 at the direction of the defendant. That money Avas borrowed from Bob Reid on this pay roll on the time of these fictitious persons, and the money brought back by the witness and given to defendants.

Eugene Jackson, son of Clarence Jackson, testified that he worked on the state highway a part of the summer of 1938; that after his father had left, in 1939, the defendant and Bryan Bums talked to' him, and each gave him money to deliver to his father. The defendant gave the witness the address of Clarence Jackson in Fort Worth. Bryan Bums took the witness to' the Texas line, where he caught the bus to Fort Worth; that later, when his father was| at Antlers, DeRoy and Bryan gave him money to pay his way to' Antlers.

Lillian Jackson, wife of Clarence Jackson, testified that she delivered $50 at the request of Bryan Bums to Clarence Jackson at the Southland Hotel in Dallas; that the defendant gave her the address in Dallas where she could find her husband. She detailed the conversation which she heard between her husband and Bryan Bums, which is substantially the same as related by Clarence Jackson.

Othol Edgar, clerk in the State Highway Department office at Altus, identified certain time sheets and pay rolls in connection with the project east of Snyder, described as the mud-jack crew, which time sheets and pay rolls were admitted in evidence and showed the names, of Harold Jones, Homer Smith, and other fictitious persons being carried thereon.

R. H. Reid testified concerning the visit of the witness Clarence Jackson and defendant DeRoy Bums to his office in Altus on July 25, 1938, at which time the defendant’s check, described in state’s exhibit No. 24, being in the sum of $347.95, was given him. That this amount was' the difference which the witness had coming to him between the amount he had loaned on the time of the workmen and the amount of warrants which he had received and cashed.

Bruce Braddock, cashier of the Altus National Bank, testified tO' the handling, on July 25, 1938, of a check drawn by DeBoy Burns on the Planters State Bank of Mountain Park, payable to B. H. Beid, and of forwarding said check to the First National Bank & Trust Company of Oklahoma City.

T. D, Elder, assistant cashier of the First National Bank of Oklahoma City, testified to the handling of the DeBoy Burns check, state’s exhibit NO'. 24, and identified a photographic copy of said check, which the defendant, through his counsel, admitted was signed by the defendant.

T. C. Huckaby testified that he was cashier of the Planters State Bank of Mountain Park; that defendant mentioned he had a check coming in and wanted to take it up at the window instead of having it run on his account. That the Altus¡ bank had called about the check, and were advised the check would be all right. That no' record was ever made at his bank of this check.

Bay S. Moore testified that at the request of Bryan Burns he cashed certain warrants at the bank at Snyder, and delivered the money to Bryan Burns. Some of these warrants were to Harold Jones, Homer Smith, and Charles Wilhite. He identified state warrants totaling $475.40, which he cashed on July 26, 1938. (It was the theory of the state that these warrants which were cashed by Moore on the next day after defendant had given the $347.95 check to Bob Beid at Altus were used to take up this check at the bank at Mountain Park.)

It can be readily seen from the short summary of the evidence hereinabove stated that every witness used by the state testified to some important point which corroborated the story of this conspiracy related by the witness) Clarence Jackson. The testimony of Harold Jones, Lillian Jackson, Eugene Jackson, or Bob Reid would have each, by itself, been sufficient to have corroborated the testimony of Clarence Jackson. It is not necessary to cite authorities nor discuss this assignment of error at length, as it does not have sufficient merit to- warrant such discussion. If believed by the jury, the evidence of the guilt of the defendant was overwhelming and amply sufficient to sustain conviction.

It is argued by defendant that the testimony shows that Eugene Jackson, Mrs. Clarence Jackson (Lillian Jackson), and Bob Reid are each accomplices, and that one accomplice cannot corroborate another. This rule of law is correct, but the conclusion that these witnesses are accomplices is contrary to the evidence.

It is next contended that the trial court committed reversible error in the giving of certain instructions, ex-eepted to by the defendant, and in its refusal to give certain instructions requested by the defendant.

The first instruction complained of is as follows :

“If two' or more persons conspire to' commit an offense, the act of any one of the parties to' the conspiracy, done in furtherance of the common design and to effect the object thereof, is the act of all, although not present when said act was done. In other words, every person who enters into a common design is in law held to' be a party to every act which may be done by any of the others in furtherance of the common design. And in this connection you are instructed that when a conspiracy is shown to exist, the least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all. After' the conspiracy has been formed, then all acts, statements, and declarations by one of the conspirators, having reference to the common design or purpose of tbe conspirators is admissible as against each and every one of the parties to the conspiracy, and in contemplation of lav* is the act of all.”

The defendant complains that this instruction is faulty for the reason that it does not limit the admissibility of acts and declaration's of the coconspirators to> the continuance of the conspiracy or advise the jury that after the conspiracy is consummated, that acts and declarations of one coconspirator are not admissible against another.

The instruction clearly states the law. The contention of counsel is based upon a question concerning the admissibility of evidence and not concerning a statement of law to be given tO‘ the jury in the court’s instructions. It is the duty of the court upon proper objection by defendant’s counsel to exclude any evidence of acts or declarations occurring after the conspiracy has been fully consummated or abandoned. The authorities in defendant’s brief sustain this point. However, was are unable to find any evidence in the record which would be the basis for such an attack, except possibly the evidence as to the flight of the witness Clarence Jackson, and in this connection we note that this evidence was admitted without objection, and shows that the defendant and Bryan Burns acted together in persuading the witness to flee. The other evidence in the case concerning statements made by Bryan Bums in connection with the cashing of certain of the warrants shows they were made during the actual consummation of the conspiracy, and accordingly are admissible in evidence.

It is well settled that where two or more persons have conspired together to commit an offense, any statement made by one of such persons in pursuance of such conspiracy is admissible in evidence against all of his coconspirators. Smith v. State, 19 Okla. Cr. 386, 200 P. 553; Bowes v. State, 8 Okla. Cr. 277, 127 P. 883; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104; Crawford v. State, 35 Okla. Cr. 135, 248 P. 880.

It is equally well settled that the existence of a conspiracy must first be proved before a declaration of one not on trial is admissible against the defendant; but if there is competent evidence, however slight, of the conspiracy, the acts and declarations of coconspirator made during the consummation of the conspiracy may be admitted in evidence against the defendant.

Counsel also attacks instruction 4%, which provides:

“A conviction cannot be had upon the testimony of an accomplice, unless he 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.
“An accomplice is a person wlm participates with another in the commission of an offense.
“In this case the witness, Clarence Jackson, who has testified herein, is an admitted accomplice, and for that reason you cannot convict the defendant upon the testimony of the said witness, Clarence Jackson, unless you find that other evidence in the case than the testimony of the witness Clarence Jackson connects the defendant, De-Roy H. Burns, with the commission of the offense.
“You are further instructed that such corroborating! evidence may be circumstantial, and it is. not necessary that the required corroborative evidence cover every material point testified to by the said Clarence Jackson, and it is sufficient if you find that the evidence of Clarence Jackson, is corroborated in some material point which tends to connect the defendant, DeRoy H. Bums, with the commission of the offense.”

Counsel complains of tMs instruction for tbe reason it fails to advise tbe jury that one accomplice cannot corroborate another, and for the reason that tbe court by calling Clarence Jackson an accomplice inferentially informed tbe jury that all of tbe other witnesses are not.

We have carefully read this instruction, and do* not think it is susceptible of the construction which counsel places upon it. It is true that one accomplice cannot corroborate another so as to authorize a conviction on the testimony of the two accomplices alone. Stinnett v. State, 58 Okla. Cr. 229, 52 P. 2d 113; Yeargain v. State, 57 Okla. Cr. 136, 45 P. 2d 1113; Hanna v. State, 30 Okla. Cr. 354, 235 P. 928.

In the case of Bryan Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144, this date decided, which involved most of the facts herein proved, it was contended that the court erred in refusing' to instruct the jury as a matter of law that Clarence Jackson was an accomplice. However, that case involved the crime of uttering a forged instrument and this case involves the crimes of conspiracy to defraud the state; and under the undisputed facts of this case, Clarence Jackson as a matter of law is an accomplice of the defendant, and the court correctly so> stated in said instruction.

The defendant, two days after the conclusion of the trial, presented to the court separate, requested instructions, in which instructions it is requested that the court instruct the jury as a matter of law that Eugene Jackson and R. H. Redd, together with Clarence Jackson, were as a matter of law accomplices.

In addition to the fact that the requested instructions were presented too late for consideration of the court, this contention is untenable for the reason that there is not sufficient evidence in the record to have justified the court in concluding that Eugene Jackson and R. H. Reid were accomplices.

Under the testimony of these two witnesses, they certainly were not accomplices, but acted entirely innocent in their transactions, except that Eugene Jackson admitted that he learned while acting as timekeeper on one of the projects that some fictitious names, had been placed on the pay roll by other parties. He secured this information, however, sometime after it had been done and was not a party to the fraud.

The defendant, offered no evidence in his own behalf; and since the testimony of the witnesses Reid and Eugene Jackson did not show that they Avere accomplices, it would have been a gross mistake of law for the court to have given these requested instructions.

Lastly it is contended that the court erred in refusing to grant defendant a new trial on the grounds of newly discovered evidence.

This contention was first presented to the trial court several weeks after sentence had been pronounced against the defendant. Attached to the motion are certain affidavits of parties residing in California who- claim to have been present at a conversation on the streets of Mountain Park when Clarence Jackson and the defendant DeRoy Bums, were talking; and Clarence Jackson told DeRoy Burns that his and his son Eugene’s highway warrants were tied up in the office of Bob Reid at Altus, that the grocery man Avas about to cut off his groceries, and he wanted Burns to lend him the money to release such warrants, which amounted to several hundred dollars; that Burns gave Jackson a check signed and drawn in blank on the Planters State Bank of Mountain Park; that after receiving the check, Jackson, in company with the affiants, the defendant not being present, went to Altus to the office of Bob Redd, where the blank check was filled in by Reid for the necessary amount and delivered in exchange for certain warrants. The affidavits will.not be set forth herein because they are lengthy, and it takes only a casual reading; of the same to see that they arel falsely made.

Assuming, however, that the affidavits speak the truth, the facts set forth therein cannot be newly discovered evidence for the defendant must certainly have been aware of this conversation and of the parties who were present and who could testify thereto, prior to' the time of the trial. The facts in this situation are comparable to the facts in Donahue v. State, 38 Okla. Cr. 87, 259 P. 179, 180, in which it is stated:

“It is next argued that the court erred in denying defendant a new trial on account of newly discovered evidence. The affidavits of several witnesses are attached setting out in substance that defendant was not at his home at the time charged. Some of the witnesses claim to have been with the defendant at the time in another part of the county. Soane claim they were at his home at the time. This is not newly discovered evidence. Defendant certainly knew at the trial who were with him at the time charged, and if he did not know who was at his home on that occasion could easily have ascertained. Where defendant fails to' show that he used due diligence to procure testimony in the first instance, his motion is properly overruled. Calvert v. State, 10 Okla. Cr. 185, 135 P. 737.”

It is apparent that if such alleged conversation had occurred, the defendant would have had his counsel question Clarence Jackson concerning the same, and would have further questioned Reid and Jackson concerning the transaction in Reid’s office where the affiants claim to bay© been present, and where it was claimed by affiants the defendant was not present. In both affidavits, it is sworn that DeRoy Burns took a blank check, drawn on the Planters State Bank at Mountain Park, and signed it, and gave it to' Jackson to take to Altus. Whoever prepared the affidavits for these parties to sign overlooked! reading the check which was admitted in evidence, as the check shows on its face that it was a check on the National Bank of Commerce of Altus, Okla. the name of the bank and the town being changed by the party who prepared the check to the Planters State Bank at Mountain Park, but the check form was on the bank at Altus.

The affidavits state that Jackson said that his warrants and those of his son Eugene, totaling several hundred dollars, were tied up with Reid. This was on July 25, 1938, and was for the June time. Upon an examination of the June pay roll, it is disclosed that Clarence Jackson drew |12'6 for the month, while his son, Eugene Jackson, was not even on the pay roll. It is not necessary tO' discuss these affidavits further, as these examples are sufficient to' show to this court that they were made without regard for the truth. In addition to' this, these affidavits are not sufficient upon their face to show diligence.

We have carefully examined the record of evidence and the briefs filed in this case, and have given the defendant every inference in his favor which the law allows and justice demands. This case is much stronger than that proved by the state in the prosecution of the brother of this defendant in the case of Bryan Bums v. State, supra.

Here the guilt of the defendant is so overwhelming that it is apparent that no reasonable explanation of the evidence offered by the state could be made, and therefore none was attempted by the defendant. The defendant in planning this conspiracy bad evidently adopted tbe view that because of bis position as State Senator be bad secured a license to prey upon tbe public treasury.

Those in public positions should maintain themselves with scrupulous fidelity to their cause. There is no place in our public affairs for officials without honor and integrity. The acts of this one dishonest public official cast reflection in the public’s mind upon the honorable body of which he happened to be a member. It is regrettable that this defendant has seen fit to perform the acts which have been so conclusively proven. He not only committed a crime himself in pursuance of these acts, but because of the influential position which he occupied, he persuaded other men who were responsible to him for their jobs to likewise violate the laws of the state, and aid him in his fraudulent plan.

It is commendable that the jurors of Kiowa county, when these unlawful acts were called to their attention, acted promptly and fairly in assessing punishment for the offenders and stamping out these practices in their county.

Under the record as we view it, the defendant is probably fortunate that the punishment assessed was not more severe.

The judgment of the district court of Kiowa county is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.