author: EDWARDS, J. DAVENPORT, P. J.

text:
    COLQUITT DAVIS v. STATE.
    No. A-8121.
    Opinion Filed July 31, 1931.
    Dissenting Opinion Aug. 21, 1931.
    (1 Pac. [2d] 824; 2 Pac. [2d] 965.)

      Stephen A. George, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the .State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Carter county, and his punishment fixed at death.

The record discloses that at the time charged defendant and his brother were at the town of Wirt, in the possession of a stolen automobile. Two deputy sheriffs, W. C. Keirsey and Vernon Cason, went to the place where the defendant and his brother were. Keirsey entered and defendant and his brother pointed pistols at him, disarmed him; about this time Cason came into the room; a shooting followed in which Keirsey received a mortal wound from which he died the next day. The proof amply sustains the charge of murder. Stephen A. George was appointed by the court as counsel for defendant.

It is first argued that the court erred in overruling defendant’s application for a change of venue. Section 2628, Comp. Stat. 1921, among other things, provides that at any time before the trial is begun, on the application of defendant the cause may be removed from the county in which it is pending to some other county, when it shall appear that the minds of the inhabitants of the county are so prejudiced against him, a fair and impartial trial cannot be had therein. Before entering upon the trial, counsel for defendant suggested to the court that he had been informed of the state of feeling in that county, and that it was probably his duty to apply for a change of venue, and asked to reserve the right to do that at any time before the jury was completed. The trial court then stated that he gave him permission to do so. The trial was then entered upon. A panel of 50 jurors was examined and there were two additional drawings of jurors made, and on the second morning of the trial counsel presented a petition for a change of venue, which was overruled by the court. A sufficient showing to require a change of venue is not made by the petition. In this connection, it may be well to say that the proceedings are irregular. As stated, section 2628, supra, requires the application for change of venue to be made before the trial is begun. The purpose of this requirement is to avoid any question of jeopardy and to fix the place of trial before the county is put to the expense of making an examination of the jurors and the calling of additional jurors, as was done in this .case. If an application for change of venue is to be made, it must be made and disposed of before beginning the trial. The right is waived by entering into tbe trial. A district judge is without authority to extend the time for the filing of a petition for change of venue until after the trial has begun.

The authority of the trial court to assess the death penalty in a case of murder where the jury do not designate such penalty in their verdict is challenged. The record discloses that, after the case had been finally submitted to the jury and they had deliberated for some time, they were brought into court and upon inquiry informed the court that they had agreed upon a verdict, but could not

agree as to the punishment, and would request the court to assess the punishment. The court said:

“Mr. Foreman, and you gentlemen of the jury, it is a great responsibility you ask this court to take under the law. You have a right to ask that, but before I accept the request I will ask that you go back to your room and see if you can’t agree on the punishment. You have a right to do as you have under the law, but this is a grave responsibility and if you cannot agree on the punishment you may ask this court to assess the punishment, however, go back and see what you can do about it,”

This amounts to an invitation to the jury to report a disagreement as to the punishment, and to leave the assessing of the punishment to the court. In so saying, we do not wish to be understood as criticising the able trial judge who presided. The jury then returned to the jury room and deliberated for an hour and were again brought into court and again stated that they had not agreed on the punishment, and, over the objection of defendant, the court received the verdict finding defendant guilty of murder, reporting a failure to agree on the punishment and requesting the court to assess the punishment. An objection to this procedure was made at the time, and was again presented at the time of sentence. The court then made extended remarks upon the question, quoting, sections 1739 and 2750, and announced in substance he was of the opinion a trial judge had authority to assess the punishment in a case of murder and proceeded to sentence defendant to suffer death. The Attorney General, in effect, has confessed error; after reviewing the statutes and the authorities, he concludes the brief of the state in these words:

“In view of the above authorities, it will be seen that the trial court in assessing the death penalty in this case exceeded its power and authority.”

In determining the authority of a trial court to assess the punishment in a case of murder, three sections of our statute should be considered and harmonized :

Section 1739, Comp. Stat. 1921, which reads:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

.Section 2750, Comp. Stat. 1921, as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Section 2751, Comp. Stat. 1921, as follows:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to he inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

It is obvious that sections 2750 and 2751, supra, are general in their nature and apply in all cases unless there is a special statute overriding the general provisions of these two sections. They are broad enough in their terms and provisions to include murder, in the absence of a special statute dealing with that subject. A controlling rule of statutory construction of universal application is that where a general statute and a special statute conflict, the special prevails over the general statute.

The rule of construction is laid down by 3 Cyc. 1151, in these words:

“Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together, and harmonized if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repug-nancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining, an exception tO' its terms unless it is repealed in express words or by necessary implication.”

The Supreme Court of this state and this court have followed this general rule. See the following cases: Carpenter v. Russell, 13 Okla. 277, 73 Pac. 930; Gardner v. School District 87, Kay County, 34 Okla. 716, 126 Pac. 1018; Union Savings Association v. Burns, 74 Okla. 1, 176 Pac. 227; Muskogee Times-Democrat v. Board of County Commissioners Muskogee County, 76 Okla. 188, 184 Pac. 591; Citizens’ State Bank of Vici v. Gettig, 77 Okla. 48, 187 Pac. 217; Greer v. Bird, 93 Okla. 246, 220 Pac. 579; Hays et al. v. City of Muskogee, 117 Okla. 158, 245 Pac. 842; Hill et al. v. Webb et al., 127 Okla. 249, 260 Pac. 450; Oklahoma Nat. Gas Co. v. McFarland, 143 Okla. 252, 288 Pac. 468; Lovins v. State, 49 Okla. Cr. 200, 293 Pac. 273.

Section 1739, supra, is a special statute dealing with the subject of murder only. In the matter of punishment for murder, it therefore follows that section 1739, supra, prevails and takes precedence over the general provisions of sections 2750, 2751 supra. In all other cases, including manslaughter and capital cases other than murder, the provisions of sections 2750, 2751, control.

The attention of the learned trial judge surely was not called to this rule, nor to the holding of this court in the cases of Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, 1103, Ann. Cas. 1915B, 736, and Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688, 690. In Hopkins v. State, supra, for the purpose of preventing misapprehension and to aid trial courts to avoid the error here committed, this court said:

“However, as there seems to be some misapprehension of the respective sections prevalent, we will briefly state our views on the question. Section 2275 [now 1739, C. O. S. 1921] authorizes the penalty of death at the discretion of the jury and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; and, when a plea of not guilty was entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death. In such cases the general provisions of sections 2028 and 2029 of the Penal Code [now sections 2750, 2751, C. O. S. 1921] have no application, only upon a plea of guilty the court shall determine the same.’ Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028.”

Again in the case of Noel v. State, supra, this court said:

“The Penal Code (section 2319, Bev. Laws) requires the jury to fix the punishment for murder, and authorizes the penalty of death at the discretion of the jury; and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; this, in order that the defendant may not be sentenced to suffer death, except in the discretion of the jury, and when a plea of not guilty is entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death, ‘but upon a plea of guilty the court shall determine the same.’ Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736. The judgment in this case does not recite the fact that the defendant was convicted of murder by the verdict of a jury assessing the death penalty.”

The rule here announced has been followed by the courts of other states. In People v. Hall, 199 Cal. 451, 249 Pac. 859, 861, the Supreme Court of that state in construing a statute very similar to section 1739, supra, said:

“The duty of the jury was thus made plain. Its discretion was to be exercised in the manner pointed out in the instructions and under section 190 of the Penal Code that discretion applied both to the fixing of the death penalty and the penalty of life imprisonment. The result of the exercise" of that discretion must appear on the face of the or, in the absence of such words, by necessary inference in the light of the instructions. It may, therefore, not rightly be said that, when the jury found the defendant guilty of murder in the first degree, but disagreed as to verdict either by the use of specific words to express it, the penalty, it thereby fixed the death penalty. It was the duty of the jury to- exercise its discretion and fix the penalty. Failing to do so, no penalty was determined upon. The jury could not exercise its discretion and not exercise it in one and the same verdict. When a verdict, such as the one here under consideration, discloses on its face that such discretion was not exercised as to either penalty, it is not a verdict upon which the court is authorized to pronounce judgment of either death or life imprisonment. In receiving such a verdict and in imposing the sentence of death upon the defendant, the court usurped the function of the jury, and its judgment was a nullity. The proceeding therefore resulted in a mistrial, and the judgment must be reversed. It is obvious, from what has been said, that the trial court should not have received the verdict in its present form, but should have caused the jury to return a verdict in conformity with law, or should have discharged the jury and retried the cause. It is earnestly insisted by the respondent that the defect in the form of the verdict constitutes- no more than ‘matter of procedure’; that under section 4% of article 6 of the Constitution the judgment should not be reversed, for the reason that, upon an examination of the entire cause, including the evidence, the guilt of the‘defendant is shown, and that an affirmance of the judgment would not constitute a miscarriage of justice. We cannot agree that the defect in the verdict was merely an error in ‘matter of procedure’ as contemplated by said section 4%. On the contrary, the defect involved matter of substantial and substantive right. It was in effect the denial of a trial by jury. The amendment by which said section 4% was added to the Constitution was not ‘designed to repeal or abrogate the guarantees accorded persons accused of crime by other parts of the same Constitution or to overthrow all statutory rules of procedure and evidence in criminal cases.’ People v. O’Bryan, 165 Cal. 55, 130 P. 1042; People v. Frey, 165 Cal. 140, 131 Pac. 127; People v. Wilson, 23 Cal. App. 513, 138 Pac. 971; People v. Ho Kim You, 24 Cal. App. 451, 141 Pac. 950. Trial by jury is guaranteed to every person charged with a felony, and the denial of that right is in itself a miscarriage of justice. See Farrell v. City of Ontario, 39 Cal. App. 351, 178 Pac. 740. In view of the fact that the cause must be remanded for a new trial, we express no opinion as to the sufficiency of the evidence to sustain a verdict, but this much may properly be said, generally, that, however degraded and hardened a criminal the evidence may disclose an accused to be, he is entitled under the Constitution to trial by jury. In legal effect this right was denied to the defendant in the case at bar. The proceedings before the trial court amounted to the same as if the court had denied the defendant a trial by jury in the first instance, and, having heard the evidence and found the defendant guilty, proceeded to impose the judgment of death. Such a judgment may not stand even though there be the clearest proof of guilt.”

The Supreme Court of Tennessee in Mays v. State, 143 Tenn. 443, 226 S. W. 233, in syllabus 1 held :

“Under Acts 1919, c. 5, providing that, when any person is convicted of murder in the first degree, the jury shall fix the punishment, which shall be death, or the jury may, if of opinion that there are mitigating circumstances, fix the punishment at imprisonment in the penitentiary for life, or for some period over 20 years, the exclusive power to fix the penalty is intrusted to the jury, and a verdict not fixing the punishment and a judgment thereon are nullities.”

The Supreme Court of Arkansas in Simpson v. State, 56 Ark. 8, 19 S. W. 99, 102, in modifying a case in which the jury had returned a verdict of murder in the first degree, held in substance the facts did not warrant a verdict of murder in the first degree, and that the judgment should be reduced to the second degree, the court saying:

“The only error committed is in the excess of the punishment. In other states where statutes authorize the appellate courts to modify the judgments of the circuit courts in criminal cases, the remedy in cases like this is found, not in a new trial, hut by reducing the punishment to make it appropriate to murder in the second degree. The courts find no constitutional obstacle to such a practice. State v. Fields, 70 Iowa, 196, 30 N. W. 480; State v. McCormick, 27 Iowa, 402; Hogan v. State, 30 Wis. 438, 439 [11 Am. Rep. 575]; Johnson v. Com., 24 Pa. 386. In this case the jury have found the prisoner guilty of murder; but, having found a degree of murder which the proof does not warrant, the verdict stands for the offense of murder, but fails as to the degree. It is then as though the jury had found, him guilty of murder, but failed to assess the punishment. The two degrees of murder are not distinct offenses. They are only statutory regulations of the punishment of the one offense of murder, to be inflicted according to the mental state in which the crime is committed. Thompson v. State, 26 Ark. 323; 2 Bish. Crim. Proc. § 565. It is true the statute requires the jury to find the degree of murder, but that is done for the purpose of having them take into consideration the distinguishing features of the two degrees, in order that the prisoner may not be sentenced to capital punishment without a special finding for the first degree. If their verdict does not show the intention to find the first degree, no sentence for that degree can follow; and, if the verdict is ‘guilty as charged,’ no sentence for murder can be pronounced, because, other grades of homicide being charged in the indictment, it is not known that a verdict of murder was intended. Thompson v. State, supra; Curtis v. State, 26 Ark. 439; Trammell v. State, 26 Ark. 534. But all murder which is not of the first degree is of the second; and when there is a verdict for murder, and no punishment is assessed by the jury, the prisoner is not prejudiced if the verdict is referred to the lower degree of the offense.”

As will be seen, the Hall Case and the Mays Case hold that a verdict finding an accused guilty of murder and failing to designate the punishment is a nullity. In this particular, we think the California and Tennessee courts were in error. The jury in those cases reached a verdict in which all concurred, that the accused was guilty of murder. They agreed that he should be punished for murder, but a part of the jury did not agree that the extreme penalty should be assessed. It is a narrow and technical rule, entirely out of line with modern jurisprudence, to hold that such verdict is a nullity. The failure of the jury to designate the punishment does not render the verdict entirely ineffective. It is, nevertheless, a verdict complete in one particular, that finding the accused guilty of murder, but defective in another particular, in failing to designate the punishment. The language of section 1739, supra, viewed literally, requires that, whether the punishment be death or life imprisonment, it must be designated by the jury in their verdict. It is evident, however, that the primary purpose of the statute was that the death penalty in a trial for murder, where a plea of not guilty is interposed, should not in any event rest with the trial court, but could be assessed only upon the verdict of the jury, designating the death penalty. If the punishment should be life imprisonment, the same solemnity would not be required to assess the punishment, and it need be designated in the verdict only for the purpose of excluding the death penalty, the only other possible punishment. Thus, under this statute life imprisonment could be assessed by the trial court for the included offense of manslaughter in the first degree long prior to the adoption of sections 2750, 2751, supra, which came into existence after statehood. The trial court being without authority to assess the death penalty in this case, the judgment must be modified to the minimum penalty of life imprisonment. The judgment is, therefore, modified by striking out the penalty of death and substituting therefor imprisonment in the penitentiary for life at hard labor. As modified, the case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., dissents.

DAVENPORT, P. J.

(dissenting). I do not concur in the majority opinion of tbis court, 51 Okla. Cr. 386, 1 Pac. (2d) 824, but think a new trial should be awarded the plaintiff in error.

The plaintiff in error was by information charged with the crime of murder. In his trial, the court, in its seventh instruction, advised the jury in part as follows:

“Should you find the defendant guilty of murder, it is your duty to designate in your verdict whether such punishment shall be by death or by imprisonment in the state penitentiary at hard labor for life.”

The record discloses that, after the case had been finally submitted to the jury, and they had deliberated for some time, they were brought into court, and upon inquiry informed the court they had agreed upon the verdict, but could not agree as to1 tbe punishment, and requested the court to assess the punishment. The court then said:

“Mr. Foreman, and you gentlemen of the jury, it is a great responsibility you ask this court to take; under the law you have the right to ask that but before I accept the request I will ask that you go back to your room and see if you can’t agree on the punishment. You have a right to do as you have under the law but this is a grave responsibility, and if you cannot agree on the punishment you may ask this court to assess the punishment, however, go back and see what you can do about it.”

It is further disclosed by the record the jury returned to the jury room .and deliberated for an hour and again stated they had been unable to agree on the punishment, and, over the objections of the defendant, the court received the verdict finding the defendant guilty of murder, reporting a failure to agree on the punishment and requesting the court to assess the punishment. The defendant objected to this procedure of the court, and again presented his objection at the time he was sentenced.

It also appears that the court at the time made extended remarks upon the question, quoting sections 1739 and 2750, C. O. S. 1921, and announced that he was of the opinion that he had the authority to assess the penalty. Section 1739, C. O. S. 1921, reads as follows:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

Section 2751, C. O. S. 1921, is as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

.Section 2751, O. O. S. 1921, is as follows:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

It is clearly shown that sections 2750 and 2751, supra, are general in their nature and apply in all cases in the absence of a special statute overriding the general provisions of these two sections. The rule of construction is laid down in 36 Cyc. 1151, in these words:

“Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way the two should be read together, and harmonized if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to or qualification of, the prior general one; and where the general act is later, the special will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.”

The Supreme Court of this state and this court have followed this general rule. Carpenter v. Russell, 13 Okla. 277, 73 Pac. 930; Hill et al. v. Webb, 127 Okla. 249, 260 Pac. 450; Lovins v. State, 49 Okla. Cr. 200, 293 Pac. 273.

Section 1739, C. O. S. 1921, supra, is a special statute dealing with the subject of murder only, and, in the matter of punishment, it therefore follows that section 1739 prevails and takes precedence over the general provisions of sections 2750, 2751, supra.

My contention is that under this special statute the tidal court was without jurisdiction to render judgment upon the verdict returned by the jury; in other words, I contend that under the instructions of the court to the jury advising them they must fix the punishment, and under the statute herein quoted, there was no legal verdict returned, and, when the court attempted to render judgment and impose the death penalty, it was without jurisdiction, and the attempted judgment was void, and this court was not warranted in modifying the judgment the trial court had rendered without jurisdiction, and that the only power this court had was to reverse the case and send it back to the trial court for a new trial.

In Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688, 690, this court said:

“The Penal Code (section 2319, Eev. Laws) requires the jury to fix the punishment for murder, and authorizes the penalty of death at the discretion of the jury; and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; this, in order that the defendant may not be sentenced to suffer death, except in the discretion of the jury, and when a plea of not guilty is entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death, 'but upon a plea of guilty the court shall determine the samel Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736. The judgment in this case does not recite the fact that the defendant was convicted of murder by the verdict of a jury assessing the death penalty.”

In the case of the People v. Hall, 199 Cal. 451, 249 Pac. 859, 861, the Supreme Court of the state of California, in construing a statute very similar to section 1739, says:

“The duty of the jury was thus made plain. Its discretion was to be exercised in the manner pointed out in the instructions and under section 190 of the Penal Code that discretion applied both to1 the fixing of the death penalty and the penalty of life imprisonment. The result of the exercise of that discretion must appear on the face of the verdict either by the use of specific words to express it, or, in the absence of such words, by necessary inference in the light of the instructions. It may, therefore, not rightly be said that, when the jury found the defendant guilty of murder in the first degree, but disagreed as to the penalty, it thereby fixed the death penalty. It was the duty of the jury to exercise its discretion and fix the penalty. Failing to do so, no penalty was determined upon. The jury could not exercise its discretion and not exercise it in one and the same verdict. When a verdict, such as the one here under cohsideration, discloses on its face that such discretion was not exercised as to either penalty, it is not a verdict upon which the court is authorized to pronounce judgment of either death or life impris-. onment. In receiving such a verdict and in imposing the sentence of death upon the defendant, the court usurped the function of the jury, and its judgment was a nullity. The proceeding therefore resulted in a mistrial, and the judgment must be reversed. It is obvious, from what has been said, that the trial court should not have received the verdict in its present form, but should have caused the jury to return a verdict in conformity with law, or should have discharged the jury and retried the cause.
“It is earnestly insisted by the respondent that the defect in the form of the verdict constitutes no more than 'matter of procedure’; that under section 4% of article 6 of the Constitution the judgment should not be reversed, for the reason that, upon an examination of the entire cause, including the evidence, the guilt of the defendant is shown, and that an affirmance of the judgment would not constitute a miscarriage of justice. We cannot agree that the defect in the verdict was merely an error in 'matter of procedure’ as contemplated by said section 4%. On the contrary, the defect involved matter of substantial and substantive right. It was in effect the denial of a trial by jury. The amendment by which said section 4% was added to the Constitution was not 'designed to1 repeal or abrogate the guarantees accorded persons accused of crime by other parts of the same Constitution or to overthrow all statutory rules of procedure and evidence in criminal cases.’ People v. O’Bryan, 165 Cal. 55, 130 Pac. 1042; People v. Frey, 165 Cal. 140, 131 Pac. 127; People v. Wilson, 23 Cal. App. 513, 138 Pac. 971; People v. Ho Kim You, 24 Cal. App. 451, 141 Pac. 950.
“Trial by jury is guaranteed to every person charged with a felony, and the denial of that right is in itself a miscarriage of justice. See Farrell v. City of Ontario, 39 Cal. App. 351, 178 Pac. 740. In view of the fact that the cause must be remanded for a new trial, we express no opinion as to the sufficiency of the evidence to sustain a verdict, but this much may properly be said, generally, that, however degraded and hardened a criminal the evidence may disclose an accused to be, he is entitled under the Constitution to trial by jury. In legal effect this right was denied to the defendant in the case at bar.
“The proceedings before the trial court amounted to the same as if the court had denied the defendant a trial jury in the first instance, and, having heard the evidence and found the defendant guilty, proceeded to impose the judgment of death. Such a judgment may not stand even though there is the clearest proof of guilt.”

My contention is, and I think it is borne out by the California case herein cited, that it was the duty of the jury to follow the law and the original instructions of the court and fix the penalty, and, when the jury failed to fix the penalty and returned the verdict that it did, it amounted to no verdict at all and should have been declared by the court a mistrial. The verdict returned by the jury discloses on its face that the direction given the jury by the statute was not obeyed as to the penalty; therefore it was not a verdict upon which the court was authorized to pronounce judgment of either death or life imprisonment. The court was without jurisdiction to impose any sentence upon the defendant, and when it attempted to do so it usurped the function of the jury and its judgment was a nullity. The trial court should not have received the verdict as returned by the jury, as it was in violation of the original instructions of the court and the statute under which the defendant was being tried. When the jury failed to return a verdict in con-fortuity with the statute, the court should have discharged the jury and retried the cause.

This court, sitting as a court of review, should meet the questions as they arise and should insist upon the statute being complied with, and not attempt by equitable adjustment to say that the defendant was guilty or not guilty of a crime, unless he had been properly tried according to our statute. Whether guilty or innocent the defendant was entitled to a fair and impartial trial before an unbiased jury, and it was the duty of the jury after hearing the facts and the law, if it found the defendant guilty, to say by its verdict what degree of punishment should be meted out to the defendant. It matters not how degraded or hardened the evidence may show the defendant to be, he is entitled under the Constitution and statutes of this state to- a trial by a jury, and, if the jury finds him guilty, the statute is mandatory that the jury must fix the punishment to1 be meted out to the defendant.

The Supreme Court of Tennessee, under a similar statute to1 the statute of this state, in the case of Mays v. State, 143 Tenn. 443, 226 S. W. 233, held that a. judgment rendered on a verdict where the jury did not assess the punishment was a nullity.

The Attorney General in his brief, after citing authorities from California and Tennessee, closes his brief by saying:

“In view of the above authorities it will be seen that the trial court in assessing the death penalty in this case exceeded its power and authority.”

I agree with the statement of the Attorney General and feel confident that under the statute of Oklahoma the trial court was without authority to impose the death penalty, or any other penalty on the defendant, and the sentence and judgment was a nullity, and void, and this court should have remanded the case for a new trial. The court in its majority opinion disagree with the Oklahoma Criminal Court of Appeals, the California and Tennessee courts, and says:

“In this particular we think the California and Tennessee courts were in error.”

In each of the cases quoted the jury found the defendant guilty of murder. In the majority opinion the court says that the holding of the California and Tennessee courts is narrow and technical, entirely out of line with modern jurisprudence to hold that such verdict is a nullity, and the failure of the jury to designate the punishment does not render the verdict entirely ineffective. This statement of the court overrides the specific language of section 1739, supra, which requires the jury to fix the punishment in a murder case. It was clearly the intention of the legislators when section 1739 was adopted to provide that, when a man was placed on trial for murder, the jury must fix the punishment to be imposed and not leave it to the trial court. The fixing of the punishment by the jury of one convicted of murder under our statute is mandatory, and is a part of the statute, and I contend that, where a. verdict of guilty of murder is found, under our statute, and no punishment is imposed, that it is not such a verdict as would give the trial court jurisdiction to impose a sentence of death, or imprisonment for life.

.Several states have murder divided into first and second degrees. Our statute provides for only one degree of murder; the punishment upon a conviction must he either death, or imprisonment for life. The court, in justification of its opinion, cites Simpson v. State, 56 Ark. 8, 19 S. W. 99, 102, as an authority for justifying, its action in affirming the decision of the trial court. When the Simpson Case was tried in Arkansas, section 1521, Mansfield’s Digest, defined murder as follows:

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.
“See. 1522. All other murder shall be deemed murder in the second degree.”

In the opinion of the court, in Simpson v. State, supra, the court said:

“The jury have found the prisoner guilty of murder, but, after finding a degree of murder which the proof does not warrant, the verdict stands for the offense of murder, but fails as to the degree. It is then as though the jury had found him guilty of murder, but failed to assess the punishment. The two degrees of murder are not.distinct-offenses. They are only statutory regulations of the punishment of the one offense of murder, to be inflicted according to the mental state in which the crime is committed.”

It will be seen from the above quotation that the jury found a verdict of murder, but failed to designate the degree of the murder as provided by the Arkansas statute. The Arkansas court then proceeds to' discuss the question of the different degrees of murder, which is not involved in the case, and then says: “The Attorney General, on behalf of the state, prefers a conviction for murder in the second degree to a. reversal for a new trial.”

I cannot agree with the majority opinion of this court that the Arkansas case is in point, or that there is any question of a verdict for murder. In my opinion the opinion of the court in this case will result in having penalties imposed upon parties who are convicted that are not warranted by the facts, or that the juries will shift the responsibility from their shoulders to the court, which in some instances, if not in all, may result in a punishment being imposed not commensurate with the crime committed. In this case the court heard the evidence and imposed the death penalty. The majority opinion, unlike the case relied upon to modify the judgment, does not question the sufficiency of the testimony tO' convict the defendant for murder with the penalty of death imposed, but only modifies the judgment because of the fact it held that modern jurisprudence warrants this court in doing so'. In the Arkansas case the court found that the evidence was not sufficient to sustain the verdict of the jury of a conviction of murder in the first degree and gave this as a reason for its modifying the judgment from first-degree murder to second-degree murder.

I fully agree with the Attorney General in this case, and insist that the case should have been remanded for a new trial in accordance with the laws of our state. Courts do not favor court legislation, and especially is this true when a special statute is being construed.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    A. M. ARMSTRONG v. STATE.
    No. A-7987.
    Opinion Filed July 31, 1931.
    (2 Pac. [2d] 100.)

      E. M. Clark and A. M. Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of assault and battery, and fined $100. Motion for new trial was filed, considered, overruled, and exceptions saved, and the case appealed to this court.

The testimony on behalf of the state, in substance, shows that Mrs. E. M. Clark, the mother-in-law of the defendant, was very ill in defendant’s apartment; the prosecuting witness, Mrs. Tom Mitts, had rooms on the same floor where the defendant and his family were living ; there were other nurses living in the second story of the building; during Mrs. Clark’s illness the nurses who were living on the second floor of the building and were superintended by the prosecuting witness, Mrs. Mitts, insisted on playing the Victrola, which disturbed Mrs. Clark. The morning of the difficulty Mrs. Armstrong, the wife of the defendant, appealed to Mrs. Mitts and requested that she ask the other nurses not to make SO' much noise, for the reason that it disturbed her mother, who was quite ill.

Mrs. Mitts and Mrs. Armstrong were talking, and the defendant came out to where they were and asked Mrs. Mitts not to talk so loud, and took her by the arm or shoulder and led her further away from the door where Mrs. Clark was sick, in order to get the noise away from Mrs. Clark’s door; he offered no violent treatment, and the testimony shows that no violence was used.

The defendant testifying relates the circumstances leading up to the time he went into the hall where Mrs. Armstrong and Mrs. Mitts were, and that he only took hold of her arm and asked her to walk around the hall for the purpose of getting the noise away from Mrs. Clark’s door. The testimony clearly shows there was no violence intended.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The only error it is deemed necessary to consider is the second assignment:

“That the verdict is not sustained by the evidence and is contrary to the evidence.”

Section 1760, C. O. ,S. 1921, defines assault as follows:

“An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”

Section 1761, C. O. S. 1921, defines a battery as follows :

“A battery is any willful and unlawful use of force or violence upon the person of another.”

A careful examination of the testimony fails to show any willful or unlawful use of force or violence upon the person of the prosecuting witness. The acts of the defendant, as shown by the record, were not sufficient to sustain a conviction of assault and battery, as defined by the statute.

For the reasons stated, the judgment is reversed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    JACK ALKIRE v. STATE.
    No. A-7958.
    Opinion Filed July 31, 1931.
    (2 Pac. [2d] 98.)
    J. F. Murray, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150, and to serve 90 days in the county jail.

At the time charged, certain officers with a search warrant searched the residence of defendant and found about three gallons of whisky. A motion to suppress the evidence was interposed and overruled. The motion was based on the fact that the affidavit for search warrant described an apartment at 735% North Peachtree street, in Ponca City. The search warrant issued on this application described the place to be searched as 735% Peachtree street. The officers’ return is that they searched the place described in the warrant, i. e., Peach-tree street.

It is well settled that a search warrant must conform to the affidavit. Thomas v. State, 38 Okla. Cr. 284, 260 Pac. 515. The provisions of section 7012, Comp. St. 1921, are as follows:

“No- (search) warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

An affidavit for a warrant to search a place on North Peachtree street will not support a warrant to search a place on Peachtree street.

The warrant must describe the premises as described in the affidavit and with such particularity that the officer to whom it is directed has no- discretion as to- the place to be searched, but can ascertain the place from the warrant. Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376; Abbott v. State, 44 Okla. Cr. 455, 281 Pac. 597; Tucker v. State, 45 Okla. Cr. 68, 281 Pac. 818; Doyle v. State, 49 Okla. Cr. 422, 295 Pac 237.

The case is reversed.

DAYENPOET, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    ELMER MOORE et al. v. STATE.
    No. A-8087.
    Opinion Filed July 22, 1931.
    Rehearing Denied Aug. 8, 1931.
    (1 Pac. [2d] 813.)

      W. R. Wheeler, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Washita county of the crime of unlawful transportation of intoxicating liquor, and their punishment fixed by the jury at a fine of $50 each and imprisonment for a period of 30 days for each of them in the county jail.

The evidence of the state was that the officers saw the defendants driving their automobile upon the public highway; that the car was weaving back and forth on the road, and from this and the actions of the defendants the officers believed defendants were driving on the highway while intoxicated; that they followed them for several miles to see what they would do; that they were about ten steps behind them and could smell whisky; that they saw some liquid running out of the car and saw one of the defendants throw a half-gallon jar out of the car; that the officers commanded defendants to stop, and, when they did not do so, one of the officers fired at the tires on defendants’ car; that when the car Avas stopped they arrested defendants and searched their car and found two glass jar lids Avith whisky in them; that they picked the jar up off of the ground and put whisky in it and brought the defendants to town and filed the complaint against them.

The defendants did not take the witness stand.

It was admitted by the state that the officers had no warrant for the arrest of the defendants, nor any warrant to search the car.

The only question in the case is the legality of the arrest and the admissibility of the evidence.

According to the testimony of the officers, the defendants were violating the law in their presence by driving this automobile upon the highway while they were intoxicated.

According to the testimony of the officers, the defendants were committing a misdemeanor in their presence in transporting this liquor, which was known to the officers by smell and sight for some time prior to the stopping and arrest of defendants.

It is undisputed that the officers arrested the defendants before any search was made.

Section 7014, O. O. S. 1921, not only gives the officers the right, but makes it their duty, to arrest without a warrant where the offense is being committed in their presence.

“When any person is lawfully arrested by an officer without a warrant for an offense committed or attempted in his presence, the officer may take from the person and immediate presence of the arrested person the tools, implements, papers, and instrumentalities which have been or manifestly may be used to commit the crime for which such person is arrested, and the seizure of such instru-mentalities in such case is not in violation of the Bill of Rights against unreasonable searches and seizures.” Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602. See, also, Rhodes v. State, 46 Okla. Cr. 219, 287 Pac. 812; Carter v. State, 43 Okla. Cr. 44, 279 Pac. 690.

In McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241, this court passed on a case where the facts were very similar to those in the case at bar, and there held that, even though the attempted arrest was illegal, yet, if the offense was actually committed in the presence of the officers, to tbeir knowledge, before tbe arrest was made, tbe officers might then legally arrest tbe defendant, and, as an incident to such legal arrest, tbe person and automobile of tbe offender might without a warrant be searched for contraband goods.

Tbe defendants having been legally arrested, the evidence was admissible, and is sufficient to support the verdict of the jury.

It having been made to appear to this court that the defendant Tip Odell had abandoned his appeal and had surrendered to the sheriff, served his term, and been released from jail on the 3d day of February, 1931, the appeal is dismissed as to him, and affirmed as to the defendant Elmer Moore.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    ROBERT SALLEE v. STATE.
    No. A-7781.
    Opinion Filed June 12, 1931.
    Rehearing Denied Aug. 8, 1931.
    (1 Pac. [2d] 794.)

      Joe S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was ■ convicted in the district court of Okmul-gee county of the crime of burglary, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that one Lowery lived on some land belonging to the Commercial Drilling Company; that Lowery occupied the dwelling house on these premises and used the bunkhouse some distance from the house in connection with the house as sleeping rooms for some of his boys; that the bunkhouse was burglarized and some property taken therefrom; that the dwelling house and bunkhouse were in the possession and control of the complaining witness at the time of the burglary; that one of the officers arrested defendant, and that he escaped from this officer shortly after his arrest; that soon after the first officer arrested defendant, other officers came, having a search warrant, and proceeded to search the premises of defendant, and found therein not only the property taken in the burglary of the bunkhouse, but also a large amount of property taken from other homes in the immediate vicinity; that defendant was seen in the vicinity of the place burglarized shortly before the crime was committed; that defendant was the owner of a Ford roadster with a small bed on the rear, and that defendant’s car was equipped on the rear wheels with one Firestone, 29-4-40, and one Goodyear Diamond 29-4-40 tire; that one of these tires had a cut in the side which caused it to1 make a peculiar mark; that the tracks of a car having tires similar to those on the defendant’s car were found near where the goods taken in the burglary were loaded; that these tires were later identified as having been stolen from another person and placed on defendant’s car.

That the goods found at his home at the time of defendant’s arrest consisted of a lot of groceries, 30 or 40 pairs of new silk hose, eight or ten pairs of new shoes, a dozen lumber jacks, 15 or 20 pairs of overalls, 10 or 12 bolts of new goods, ribbons, coats, shirts, a feather bed and bed clothing, a ten-gallon lard can full of coffee, some coffee in pound packages, some cans of pork and beans and a few cans of canned fruit. That other property stolen was found at the home of Hotchkiss, a brother-in-law of defendant, who lived in Seminole county.

That some weeks later, defendant was arrested at Windsor, Ark., while attempting to escape out the back door of the house where he was staying. That shortly after his arrest defendant said that he owed the state of Oklahoma some time, and he would plead guilty and get off the best he could.

The defense was an alibi.

Defendant contends first that the court erred in admitting in evidence the stolen articles found in defendant’s home, because the search violated defendant’s constitutional rights.

It appears from the record that one of the officers went to defendant’s home and arrested him; that he permitted the defendant to go across the street to another house to telephone, and that defendant escaped. It further appears from the record that shortly after this, other officers came with a search warrant, and, upon searching the home of defendant, found a large amount of stolen goods concealed in the same. The objection that the evidence was not admissible is without merit.-

Defendant next contends that there is a fatal variance between the allegations in the information and the proof, in that the information alleges that the defendant did unlawfully, willfully, feloniously, and burglariously break and enter into the dwelling house of one Vick Lowery, while the proof shows that the property was taken from the bunkhouse which was used as a part of the residence, and in which some members of the complaining witness’ family slept.

Section 2067, C. O. S. 1921, provides:

“The term 'dwelling house’ as used in this article, includes every house or edifice, any part of which has usually been occupied by any person lodging therein at night, and any structure joined to- and immediately connected with such a house or edifice.”

The bunkhouse was a dwelling house within the meaning of said section.

Under this assignment, defendant further contends that there is a fatal variance, because the proof showed that the complaining witness did not own the house burglarized.

The complaining witness testified that he was the lessee, and in exclusive possession of the premises burglarized.

Proof of any kind of rightful possession of the house, as against the burglar, is sufficient to sustain the allegation of OAvnership of the house burglarized. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Wilson v. State, 50 Okla. Cr. 310, 297 Pac. 826, 827.

Defendant next urges that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

It appears from the record that the defendant had a fair trial, and that the errors of laAV complained of are insufficient to require a reversal of the case. The cause is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    HILDRED RICH et al. v. STATE.
    No. A-7907.
    Opinion Filed July 18, 1931.
    Rehearing Denied Aug. 8, 1931.
    (1 Pac. [2d] 805.)

      Warren B. Phillips and Finis M. Walker, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Seminole county of the crime of robbery with firearms, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state was that Norma Eagsdale was running a soft drink and barbecue stand on a highway in Seminole county, and was being assisted by one Myrtle Hale; that on the day of the robbery the defendants came to the soft drink and barbecue stand and demanded $25 protection money from the Eagsdale woman; that upon being refused they started to beat her up and' she fled; that at about that time Myrtle Hale went into the tent back of the pop and barbecue stand to see what the difficulty was; that one of the defendants assaulted her and covered her with a pistol and took by force and fear from her immediate presence one 17-jewel Hamilton watch, one 'brown gladstone suitcase, two silk dresses, one leather hat box, and a stock of candy and chewing gum of the value of $100; that the defendants tore the dress and slip off of Myrtle Hale and one of them struck her and knocked her on the bed; that they tore the brassiere and step-ins from her body, and, while the defendant Rich covered her with a revolver with one hand and held her with the other hand, the defendant Kygar raped her; that defendant Rich then attempted to rape her, but abandoned it without accomplishing his purpose; that the Hamilton watch was found in the possession of defendants when they were searched after their arrest, and that the officers had a description of the automobile and had found it, and the defendants came to the police station looking for it, claiming it had been stolen from them; that at that time they denied being at the tent or having anything to do with the robbery, but, when confronted by the women, said that some of the stuff was in the suitcase in the car. When informed by the officers that the suitcase was not in the car, defendants thereupon said the suitcase was in a garage at St. Louis.

Defendants testifying for themselves said that they were at the pop and barbecue stand with some parties and bought 7% pints of whisky for which they paid $7; that one of the truck drivers who was there bought $10 worth of whisky, which the defendants and the women and the truck drivers drank; that defendants, after drinking some, left the place and went to Seminole; that the car was taken from the street and they went to the police station to look for it, but denied that they had committed the robbery. The defendants explained their possession of the watch by saying that they had loaned the girls $5 on it.

The evidence of the state is sufficient to support the verdict of the jury.

Defendants contend first that the court erred in forcing them to trial over their objection that a list of the witnesses to be used in chief by the state had not been served upon them at the time of arraignment.

The record discloses that the defendants were arraigned in the district court on November 4, 1929, and that at this time all formalities of the arraignment and time to plead were waived, and that both defendants entered their pleas of not guilty of the crime of robbery with firearms.

The record further discloses that on the 18th day of December, 1929, this cause came on regularly for trial, at which time defendant’s counsel claimed defendants had not been served with a list of the witnesses at the time they were arraigned, and declined to announce ready for trial, whereupon the following statement was made by the court:

“The Court: Mr. Clerk and Mr. Court Reporter, let the record show in this case that the defendants have heretofore been duly arraigned and at that time a copy of the information with a list of the witnesses was served on the attorney of record in the case and the defendants being present at the time it was served. Is the state ready for trial?”

The objection made by the defendant reads:

“If Your Honor please, at the time they were arraigned they were not served.”
“If Your Honor please, we don’t want to waive that question.”

This objection was insufficient, for the reason that it merely claimed that the list of witnesses was not served upon them at the time of their arraignment. The Constitution makes no such requirement. The requirement is that a list of witnesses shall be served in capital cases two days before the trial. Thereupon the court announced ready for trial for the defendants and ordered a jury impaneled. Defendants saved no exceptions to the order of the court.

It is contended by defendants that the fact that they were present in open court when a copy of the information and list of witnesses was served on their counsel is insufficient, as the Constitution requires that the list shall be served upon them personally.

That part of article 2, § 20, of the Constitution, pertinent to the issues here, is as follows:

“* * And in capital cases, at least two1 days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post-office addresses.”

In Franklin v. State, 9 Okla. Cr. 178, 131 Pac. 183, this court said:

“The defendant in a capital case may waive his constitutional right to be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses, at least two days before the case is called for trial.”

In Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210, this court said:

“The service of a list of witnesses upon defendant to be used by the state in chief is a matter which the defendant can waive and which he does waive if no timely objection is interposed.”

In Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029, this court said:

“The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.” State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Franklin v. State, 9 Okla. Cr. 178, 131 Pac. 183; Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812; Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210.

Where at the time of arraignment, and more than two days before the trial in a capital case, upon the order of the court the defendants’ counsel, in the presence of defendants, is given a copy of the information upon which the names of the witnesses to be used by the state in chief are indorsed, this service in open court is sufficient service upon the defendants to meet the requirements of article 2, § 20, of the Constitution.

Defendants next contend that the court erred in permitting the state to read the transcript of the evidence of Myrtle Hale taken at the preliminary examination of the defendants.

The state moved for leave to read the transcript of the evidence of the witness Myrtle Hale, and in support of such motion introduced a subpoena for her which was returned and filed with the court clerk on the 12th day of December, 1929, showing that the witness could not be found.

The return was made by J. W. Fulkerson, deputy sheriff, who testified that in searching for the witness he went out west of Mission City, near the Carr schoolhonse, and that thereafter he went nine miles east of Holdenville and outside of Seminole county searching for her; that he took Dr. Hunter, county health officer, and Norma Ragsdale with him; that they were unable to find the witness.

It appears from the record that the magistrate who conducted the preliminary hearing made a certified transcript of all of the proceedings had before him, including the evidence given by Myrtle Hale, and had duly filed the same in the district court. The state introduced the certificate of the magistrate attached to the transcript and the transcript itself, and thereupon the state was permitted to read the evidence of Myrtle Hale so taken to the jury.

The defendants contend that the state failed to lay a sufficient predicate for the introduction of this testimony.

The showing of the state was weak, but counsel for defendants saved no exceptions to the order of the court admitting the evidence.

After the state had closed its case, the defendants sought to introduce a contradictory statement made by Myrtle Hale, from which it appeared that Mr. Phillips, counsel for defendants, had met Myrtle Hale on Saturday night before the trial in Hughes county, east of Holden-ville ; that he went there for the purpose of getting a statement; that witness went on to McAlester and came back Sunday afternoon at about 4 o’clock and saw her again; that he saw her again at about 9 o’clock .Sunday night, and then that she was at his office in Wewoka on the same night; that at that time, in his office, she made the statement which was attempted to be introduced by the defendants. When defendants offered this statement, the state objected, and the court sustained the objection.

It thus appears from the record that the defendants’ counsel were in communication with the witness and had her in Wewoka some time after 9 o’clock Sunday night and in the office of defendants’ counsel. This information was not revealed to the court nor to the county attorney until the state had closed its case. Good faith would have required counsel for defendants to disclose whatever information he had as to the whereabouts of the witness.

The showing of the state brings the case within the rule laid down in Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453, Tobin v. State, 49 Okla. Cr. 265, 293 Pac. 575, and Alexander v. State, 51 Okla. Cr. 1, 299 Pac. 237, 238, and was sufficient to entitle the state to introduce the transcript of the evidence.

Defendants next contend that the court erred in permitting proof to be introduced of the rape committed upon Myrtle Hale at the time of the robbery.

The general rule is that the state cannot show that the accused has committed other crimes.

Evidence which tends to throw light upon the guilt of the defendant and which has some logical connection with the crime charged is not inadmissible because it may tend to show him guilty of some other crime. Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.

Evidence of another and distinct crime is permissible if it was committed as a part of the same transaction and forms a part of the res gestae. Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383; Littrell v. State, 22 Okla. Cr. 1, 209 Pac. 184.

The trial court in its instructions to the jury said:

“In this connection you are advised that such evidence is competent for your consideration in determining the question as to whether the defendants are guilty of the crime as charged in the information — that is, you may consider it as tending to show or not show light upon the proposition as to whether the defendants are guilty of the crime charged in the information, and for this purpose only, and should you find from the evidence that the defendants are guilty of other crimes than the one charged for which they are being tried, but have a reasonable doubt as to whether they are guilty as charged in the information, you should acquit the defendants.”

The assault upon Myrtle Hale being a part of the same transaction and a part of the res gestae, it is admissible. The instructions of the court properly advised the jury of the purpose of this evidence, and the defendants cannot complain by reason thereof.

The other errors complained of by defendants are without merit.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J. concur.


text:
    MARVIN DOLD v. STATE.
    No. A-7973.
    Opinion Filed Aug. 8, 1931.
    (2 Pac. [2d] 97.)

      John A. Goodall, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of robbery with firearms and was-sentenced to serve a term of 25 years in the penitentiary.

The record discloses that at the time charged defendant with one Shock entered the First State Bank of Inola and with pistols held up the bank and robbed it of $733. They then departed in an automobile, taking with them Mr. and Mrs. Koenig, who were in charge of the bank, and one Cassel, who had observed their movements. They carried these parties some distance and then forced them out of the automobile. This defendant was tried separately.

The principal contention made is that certain statements of defendant amounting to an admission of guilt were obtained by duress and third-degree methods.

It is not claimed that the evidence is insufficient and there appears to be no doubt of defendant’s guilt. He is identified by both Mr. and Mrs. Koenig and by W. L. Riggs, a 14 year old boy who' was standing near by when the persons committing the robbery forced the Koenigs and Cassel into the automobile.

Defendant did not offer any witness in his behalf and did not testify on the question of guilt, but was called for the limited purpose of denying, that the statements made by him were voluntary. It is settled by the decisions of this court that a confession obtained by any form of compulsion is not admissible, since it violates defendant’s constitutional privilege against self-incrimination. In deciding whether or not a confession is admissible, the trial court is vested with a large discretion; but this discretion must be exercised with care. When it appears that the constitutional right against self-incrimination has been violated, this court will not hesitate to set aside a judgment obtained by evidence procured by compulsion and to grant a new trial. Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Doublehead v. State, 27 Okla. Cr. 375, 228 Pac. 170; 1 Wig. on Ev., § 860.

A careful scrutiny of the evidence convinces us the court did not err in admitting the evidence here complained of.

It is next argued that the punishment assessed is excessive, and it is set out that the codefendant Shock was sentenced to serve a term of ten years for the same offense. This is outside the record, however. We have no judicial knowledge of the fact of the circumstances surrounding such sentence. The lesser punishment in that case would be no legal reason for modifying the judgment.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    MIKE RISENHOOVER v. STATE.
    No. A-8016.
    Opinion Filed Aug. 8, 1931.
    (2 Pac. [2d] 98.)
    C. C. Williams, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was jointly charged with Bill Baum and Everett Wimberly with the robbery of the Buschow Lumber Company, at Stapp, Okla. Upon severance, Bill Baum was first tried and found guilty. Thereafter the defendant was placed upon trial and found guilty, and his punishment fixed by the jury at imprisonment in the state penitentiary for 20 years.

The evidence of the state was that the defendant, Bill Baum, and Everett Wimberly had been at the home of Coe Thompson, some distance from the town of Stapp, off and on during the week prior to the robbery; that Thompson had a large amount of dynamite at his place; that defendant had blown up a tree with some of the dynamite; that defendant got some kindling and went up to a spring, ¡where there was a wash and cook camp, built a fire, and worked around that; that he borrowed a half-pint bottle from Mrs. Thompson; that the defendant, Baum, and Wim-berly left the Thompson home about 2:30 or 8 o’clock on Saturday afternoon before the robbery at about 2 o’clock on Sunday morning, going towards the place of the robbery; that a Ford roadster was seen several miles from the home of Coe Thompson, in which the defendant and two other men were riding,; that at about 2 o’clock on Sunday morning three men captured the night watchman of the lumber company; that Bill Baum beat him up and forced him to remain with a young man who appeared on the scene and was captured while the other two went to blow up the safe; that during the robbery, as fast as any one appeared on,the scene, he was captured and turned over to be guarded; that the safe was blown open with nitroglycerine and from |625 to $675 taken, but none of the witnesses were able to identify any of the parties except Baum; that on Monday morning the officers went out to the Coe Thompson place and found a number of wrappers taken from dynamite sticks, found a pot and the sediment of dynamite where the nitroglycerine had been boiled out, and found the cloth through which the dynamite had been strained; that Thompson and his wife were arrested and warrants issued for the defendant, Baum, and Wimberly; that defendant had disappeared from his usual haunts and the officers were unable to find him; that the next morning after the robbery Bill Baum came back to the Thompson home at about daylight, but the defendant and Wimberly did not come back there; that about six weeks after the robbery defendant was apprehended, hiding in a barn near Mena, Ark., with two other men; that, when the officers went into the barn, defendant was in the loft and covered them with his gun; that they forced him to throw his gun down and arrested him, and on searching his person they found a dirk knife in a scabbard and a pistol bolster empty; that in defendant's shirt pocket they found a half-pint bottle which defendant claimed contained cough medicine; that the officers gave it back to him and later went back and found the bottle in the barn; that they found a little satchel which defendant said was his; that in the satchel was a man’s union suit, a lady’s silk hose, and silk underwear, a pair of rubber gloves, dynamite caps and fuse, and a few cartridges.

Defendant did not take the witness stand. His defense was an alibi. On cross-examination these alibi witnesses were discredited by their own admissions, and at least one of them by a previous conviction for a felony; Wimberly, one of those charged jointly with defendant, by admissions and by the fact that he had been previously convicted of a felony.

Defendant contends that the evidence is insufficient to support the verdict of the jury.

The statement of the state’s evidence does not include all of the details. The trial court gave the usual instruction on circumstantial evidence, and the jury were properly advised by the court.

In Armstrong v. State, 39 Okla. Cr. 364, 265 Pac. 663, this court said:

“Where there is competent corroborating evidence tending to connect the accused with the commission of the crime charged, the weight of such evidence is a matter for the jury.”

Defendant next contends that the court erred in admitting in evidence the articles found on defendant’s person and in his possession at the time of his arrest.

In Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665, 666, this court said:

“Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which may be used to prove the offense, may be seized and held for evidence in the prosecution.”

The articles found on defendant and in his possession were competent evidence because they tended to connect the defendant with the commission of the offense.

There being no substantial merit in defendant’s contentions and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent and not participating.


author: EDWAEDS, J.

text:
    FRANKIE REARDON v. STATE.
    No. A-7951.
    Opinion Filed Aug. 8, 1931.
    (2 Pac. [2d] 100.)

      Rice & Mitchell, and Williams & Cowan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of assault with a dangerous weapon with intent to do bodily harm and his punishment fixed at one year and one day in the penitentiary.

The record discloses that at the time charged, defendant was about 22 years of age. Otis Reed, the person assaulted, was about 40 years of age and was the publisher of a newspaper at Blanchard. Defendant took umbrage at an item which had appeared in the paper and apparently was looking for Reed and, when he met him on the street, asked him about the article; not being satisfied with Reed’s answer, he knocked him to the sidewalk and struck him several other blows, from which Reed became unconscious and did not recover consciousness for some two weeks. As a result of the blows, Reed’s jaw was broken, two teeth were knocked out, and he was bleeding at the mouth and nose. The state’s theory is that the blows were struck with metal knucks. Defendant denies that he used knucks; he testified that at the time he questioned Reed, that Reed drew a knife from his pocket, struck him and attempted to open the knife, and that he acted in his necessary self-defense. No witness testified positively that defendant had knucks, but upon this point the testimony in substance is that he had some bright metal object in his right hand about the size of an object exhibited, which the record does not identify, but from the context must have been knucks. The item appearing in the newspaper was offered in evidence but was excluded on the state’s objection. It does not mention defendant by name.

The first contention is that the evidence is insufficient to sustain the judgment, particularly for the reason that the testimony of the use of knucks is not positive. The difficulty occurred at about dark, and under the circumstances, a particular description of knucks in the hands of defendant is not to' be expected. The testimony presented a clear-cut question of fact which the jury by their verdict have found against defendant. There is ample evidence to sustain their finding. Moore v. State, 4 Okla. Cr. 213, 111 Pac. 822.

It is next argued that special counsel for the state was guilty of misconduct in laying on the counsel table in the presence of the jury metal knucks which had not been introduced in evidence. On objection being made, it was promptly sustained by the court. Metal knucks had been referred to during the course of the trial and had evidently been presented for the inspection of the witnesses during the trial. Admitting the laying of the knucks on the table in the presence of the jury was error, surely a jury is not so easily swayed as to have been influenced by this fact.

Some complaint is also made that the proof does not show that the weapon used was a dangerous weapon within the meaning of the statute, section 1764, Comp. St. 1921. Metal knucks used in the manner shown by the evidence of the state are per se a dangerous weapon. Bourbonnais v. State, 7 Okla. Cr. 717, 122 Pac. 1131; Fabry v. State, 23 Okla. Cr. 215, 213 Pac. 910. No reason why this court should interfere with the judgment of the lower court is made to appear.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    LESLIE STORY v. STATE.
    No. A-7925.
    Opinion Filed June 6, 1931.
    Rehearing Denied Aug. 8, 1931.
    (2 Pac. [2d] 289.)
    Mitchell & Mitchell, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of larceny of an automobile, and, the jury being unable to agree upon his punishment, the same was fixed by the court at imprisonment in the state penitentiary for five years.

The evidence of the state was that one Francis was the owner of a red Buick automobile, 1929 model, motor No. 2,372,460, with Illinois tag No. 160,989. It was stipulated that this car was taken without the knowledge or consent of Francis. At the time defendant was arrested and possession of the car taken, the tag on the car was issued by the highway department on a Chevrolet 1924 model, to O. B. Roth, 912 West First street, and which tag had been reported stolen.

Hill and Ragland, two police officers, testified that the crossing at Broadway and the Rock Island tracks was blocked by a freight train; that they noticed á Ford tonr-ing occupied by two' men on their right and a red Buick ear; that the driver of the Ford car backed up and struck the Buick car and turned across the street and went west on First street to Walker; that they followed in their car and the red Buick car also followed; that the Buick car was 'being driven by the defendant in this case; that the drivers of the Ford car speeded up and ran two stop lines, going at a speed of 45 or 50 miles an hour; that the officers forced the car to stop, and, while they were talking to the men in the car, the defendant, who had parked the red Buick car about a block and a half away, came up to the car and told the officers that he knew the men in the car, and that they were all right and that he was going with them to see that they did not run any more stop lines. Thereupon the officers turned the men loose and allowed the Ford car to proceed.

One of the occupants of the car testified that, after they had driven two or three blocks, the defendant said that he knew the car was “hot as hell” and he had stashed it. That thereupon they insisted that defendant get out of the car, because they were afraid he would get them into trouble, and the defendant did get out of the car and started back to where he said he had left the car parked.

The officers testified that they had a bulletin describing a stolen car and identified this car parked by the defendant as the stolen one, and that they circled a block and waited for the defendant to come back. That in 15 or 20 minutes they noticed the defendant on Hudson, walking east; that when he saw the officers he turned and went over on Dewey and west a block; that in the meantime the officers had been to the car and identified it as the one defendant had been driving; that when the officers arrested the defendant, about a block and a half from the car, he started to go up between two buildings; that when they stopped him and asked him what he was doing there he said he lived there, and denied that he had ever seen the Buick car or had anything to do with it or knew anything about it; that the officers inquired at the house and were told that the defendant did not live .there, and that the people living there had no interest in the Buick car.

Jack Cox, testifying for the state, said that he was one of the occupants of the Ford car; that the defendant had asked him and "his companion to take him down to where this Buick car was parked behind some box cars on the Santa Fe tracks; that he was afraid of the car because of the manner in which it was concealed; that when the car would not start he got behind it and pushed it with the Ford until it started, and then they drove out and went on the trip as detailed by the officers, except that he said they did not go to1 the Rock Island tracks on Broadway, but did go to Walker, and said he did not remember backing up and going down on First street.

After his arrest the officers took defendant to the police station, where he was released by the desk sergeant on a charge of loitering. That a charge of automobile larceny was filed the next day and the defendant arrested at about 8 o’clock in the evening.

Defendant, testifying for himself, said that a friend of his named Kaiser told him he was going to Texas for a week and gave him his keys and asked him to take care of his car. That Jack Cox and his friend took him down to where the car was parked, and that he took possession of the car and drove it out as described by the officers and other witnesses and finally abandoned it at the place Where the officers said they found it; that he had drunk a lot of “jake” that night and was pretty drunk and was afraid the officers were going to' arrest him was the reason he denied seeing the car and denied having anything to do with it. He also denied telling the officers that he lived at that place.

Defendant never told his father or anybody about his friend giving him the keys until he told his lawyer prior to the trial. Defendant’s father testified that he had never heard the story of the keys until it was told there in the courtroom.

Defendant assigns several grounds of error, but, in substance, they all go to the sufficiency of the evidence to support the verdict of the jury.

When all of the facts and circumstances are considered together with the contradictory stories told by the defendant at and prior to his arrest, there is sufficient evidence to support the verdict of the jury.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    C. J. TROUP v. STATE.
    No. A-8000.
    Opinion Filed May 2, 1931.
    Rehearing Denied June 6, 1931.
    Withdrawn, Corrected, Refiled, and Application for Leave to Pile Second Petition for Rehearing Denied Aug. 8, 1931.
    (2 Pac. [2d] 591.)

      M. D. Hartsell and Kight, Johnson & Kight, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, Avas convicted in the district court of Muskogee county of the crime of obtaining money by false pretenses, and his punishment fixed by the court at imprisonment in the state penitentiary for seven years.

The evidence of the state was that Margaret Hilton, the prosecuting witness, had bought four lots in Muskogee county from the defendant, which he had never owned, and had paid thereon $600, the full purchase price; that she was pressing defendant for a deed to the lots; that on or about the 15th day of August, 1926, defendant took her to the town of Taft, in Muskogee county, and there showed her 20 acres of land and represented to her that he was the owner of that land and had a legal right to sell the same to her; and that, relying on these representations, she agreed to the trade; that she was an ignorant negro woman, unable to read or write, and that she relied absolutely on defendant’s representations and promises.

That on the 27th day of August, 1926, the defendant came to Oklahoma City and there entered into a written contract with the prosecuting witness to sell her the 20 acres of land for $2,000; that she paid defendant $10 in cash when the contract was executed; that defendant agreed to allow her a credit of $600, the amount she had paid defendant for the lots, upon the purchase price of $2,000 which she was to pay defendant for the 20 acres of land; that she was to pay the balance of the purchase price of $1,400 in monthly installments of $20. That thereafter she paid defendant various sums of money in other counties of the state, and on the 18th day of August, 1928, $52 as final payment of the purchase price of this property, which payment was made at Wewoka, in Seminole county. That when this $52 was paid, she requested that she be given a deed to the 20 acres; that defendant put her off by various excuses until the' latter part of 1930, when an investigation disclosed that the defendant did not then and had never owned any of this land, and his arrest followed.

The state introduced in evidence the contract between the defendant and the prosecuting witness for the purchase price of the twenty acres of land and numerous receipts for money paid the defendant, which receipts recited that the payments had been made in Muskogee county.

Tlie information charges, in substance, that on the the things complained of by the Hilton woman, hut admitted that he agreed to sell her some lots in Taft, in 1924, and claimed that there was still a lot of money due him upon that contract. He denied that he made any representations to her that he owned the land at Taft.

Defendant contends first that the court erred in overruling his demurrer to the information, for the reason that it is duplicitous in that it charges the defendant with the commission of more than one offense, and that the information shows upon its face that the transaction was barred by the statute of limitation.

The information charges, in substance that on the 27th day of August, 1926, the defendant did, in Muskogee county, with intent to cheat and defraud one Margaret Hilton, represent that the Troup Realty Company was the owner of 20 acres of land in Park addition to the town of Taft; that defendant, with intent to' cheat and defraud said Margaret Hilton, pointed out this property to her, and that Margaret Hilton, relying upon such representations, entered into a written contract to purchase said property and from time to time made payments thereon, which' defendant received and receipted for in Muskogee and other counties, until the entire purchase price was paid; that the last payment was made to defendant on the 18th of August, 1928, and that this transaction was all had with intent on the part of the defendant to cheat and defraud the said Margaret Hilton.

The state contends that the making of the contract in 1926 and the payments by Margaret Hilton, including the one on August 18, 1928, was all a part of one continuous criminal transaction, ¡and that she had continued to pay defendant money by reason of his statement to her that he owned this land, from the day of his original utterance of that statement and the making of the written contract until the last dollar was paid by her. Every time he accepted her money without informing her otherwise, he revived and kept alive his original false statement.

25 Corpus Juris, page 602, states the rule:

“A number of cases have based the criminal liability of the accused upon the doctrine of continuing pretenses, under which, if the pretense is the inducing cause, it is immaterial that there has been a lapse of time between the pretense and the obtaining of the property” — citing numerous authorities to. sustain the rule.

In the case of State v. Gerhardt, 248 Mo. 535, 154 S. W. 722, the court said:

“Where three years, had not expired from the date that complainant paid over his money to defendant in reliance on defendant’s false representations, a prosecution for false pretenses was not barred by limitations, though more than three years had expired from the date of the making of false representations which may have aided in deceiving complainant.”

; To the same effect is State v. Riley, 65 N. J. Law, 192, 46 A. 700.

To constitute the offense it is necessary that there be false pretenses and the receiving of money or property as a result thereof. Where money or property is obtained within three years, even though the representations may have been made prior to the three years, the case is not barred by the statute of limitation.

Defendant next urges that his demurrer to' the information should have been sustained, because it appears upon the face thereof that the venue was not in Muskogee county.

It appears from the evidence of the state that the false representations were made by the defendant at Taft, in Mmskogee county; that the contract for the purchase of the land and a payment thereon were made in Oklahoma county; that thereafter some of the payments were made in Caddo county; that the one on August 18, 1928, was made in Seminole county, and certain receipts showed on their face payment was made in Muskogee county, although there was evidence to the contrary.

Section 2429, C. O. S. 1921, provides:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

Defendant contends that venue did not lie in Muskogee county because the state failed to show any payments made in that county, supporting this contention upon the authority of Owen v. State, 22 Okla. Cr. 419, 211 Pac. 1059. This case is not in point for the reason that the false pretenses were all made at Sitka, Kan., and the money obtained at Sitka, and placed to the defendant’s credit in that bank. Thereafter the defendant went to Harper county, Okla., and drew some checks on that account. The court there properly held that the Oklahoma court was without jurisdiction, since none of the representations nor the obtaining of the money occurred in Oklahoma.

The state of Iowa has a statute identical with section 2429, supra. In the case of State v. Gibson, 132 Iowa, 53, 106 N. W. 270, 271, that court had under consideration the precise question involved here. The defendant, an insurance agent, forwarded applications by mail from Chickasaw county, Iowa, to the Des Moines Mutual Hail Insurance Association, at Des Moines. Pursuant to defendant’s request, tbe insurance association mailed a check for $24.80 to him drawn upon a bank in Des Moines. This check was received by defendant in Chickasaw county, indorsed by him and cashed by a bank in said county. The check finally reached the Des Moines bank and was honored and charged to the account of the insurance company. The defendant was prosecuted in Polk county, where the applications with the false representations were received by the insurance association.

It was contended that the defendant did not receive the money in Polk county, but in Chickasaw county, and that the district court of Polk county had no jurisdiction. The Supreme Court of Iowa said:

“Under the evidence there can be no doubt that the defendant made the false pretenses with which he is charged in Polk county, Iowa; for the applications were there received and acted upon by the insurance association. Placing the same in the mail to be forwarded to the insurance company was not, so far as the criminal aspect of the case is concerned, a false pretense in the county where the applications were prepared or received by the defendant. State v. House, 55 Iowa, 466, 8 N. W. 307.
“But it is stoutly insisted that the money was procured in Chickasaw county and not in Polk, where1 Des Moines is situated. We have a statute (Code, § 5157) which provides that when a public offense is committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the offense occur in two or more counties, jurisdiction thereof is in either county. This would seem to settle tne question now being considered. Com. v. Goldstein, 3 Pa. Co. Ct. R. 121; Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291; State v. Lichliter, 95 Mo. 402, 8 S. W. 720; Com. v. Taylor, 105 Mass. 172; Reg. v. Leach, 7 Cox, C. C. 100; People v. Dimick, 107 N. Y. 33, 14 N. E. 178; Reg. v. Jones, 4 Cox, C. C. 198. Aside from statute there may be some doubt as to the venue of the offense under such a state of facts as is here disclosed. See Roberts v. People [9 Colo. 458], 18 Pac. 630; State v. Palmer [40 Kan. 474], 20 Pac. 270; Burton v. U. S. [196 U. S. 283], 25 S. Ct. 243, 49 L. Ed. 482; State v. Shaeffer, 89 Mo. 271, 1 S. W. 293; Connor v. State [29 Fla. 455], 10 So. 891, 30 Am. St. Rep. 126; Graham v. People [181 Ill. 477], 55 N. E. 179, 47 L. R. A. 731; U. S. v. Plympton, 4 Cranch, C. C. 309, Fed. Cas. No. 16, 058; Bates v. State [124 Wis. 612], 103 N. W. 251 [4 Ann. Cas. 365]; Com. v. Wood, 142 Mass. 459, 8 N. E. 432.”
“Without deciding this question, which we regard largely a moot one, it is enough to say that our statute was borroAved from New York, and under the decisions in that state construing this statute the district court of Polk county had jurisdiction. See People v. Dimick, supra.”

In People v. Peckens, 153 N. Y. 576, 47 N. E. 883, 886, the New York Court of Appeals said:

“If this crime was committed partly in Ontario county, it is clear that by virtue of that statute the court had jurisdiction, and properly declined to dismiss the indictment, or direct the juty to acquit. The appellant was indicted for having deprived the complainant of the deed and title to her property, situate in Ontario1 county, by color or aid of fraudulent or false representations and pretenses. It is quite manifest that the allegations in the indictment sufficiently charge that- the crime was committed partly in Ontario county and partly in the county of Monroe. The acts and fraudulent representations which induced the prosecutrix to make a deed of her property and obtain an abstract of her title, to send them 'to the county of Monroe, to1 be delivered to one of the defendant’s confederates, were all alleged and proved to have been made and to have transpired in Ontario county. It is apparent that Avhat occurred in that county constituted a step in, and led up1 to the consummation of, the crime charged. But for the acts and representations made and performed there, no crime would have been committed. If one of the confederates had not, when acting as a co-conspirator with the defendant in attempting to deprive her of her property by fraud, falsely represented and pretended to the prosecutrix that he was acting for her, in her interest, and as her agent, in selling her property, no real or pretended sale would have been effected, and the deed would not have existed which was the subject of the crime charged. But for what transpired in that county, no second step would have been taken towards the commission of the offense. Again, it was consummated there by recording the conveyances fraudulently made and procured by the defendant and his confederates. It was in that county that one of the confederates was presented to the complainant, under a false name, as a prospective purchaser of her property, and she was there induced by their fraudulent acts and pretenses to enter into an agreement for its sale to him. Consequently, as at least some of the fraudulent acts and pretenses were made and performed in that county, it is clear that the offense was partly committed there, and the court had jurisdiction.” To the same effect are People v. Chapman, 55 Cal. App. 192, 203 Pac. 126; People v. Botkin, 132 Cal. 231, 64 Pac. 286, 84 Am. St. Rep. 39.

Under section 2429, supra, and authorities cited, it is immaterial whether any payments were made in Muskogee county. The venue may be laid where the false representations are made, or in any county where payments were made by reason thereof. Since the representations were made in Muskogee county, the venue was properly laid in that county.

Defendant next contends that the proof of the state failed to show that the full $2,000 purchase price of the real estate had been paid.

Defendant was prosecuted under chapter 33, Session Laws 1923, which provides:

“If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than twenty ($20.00) -dollars, any person convicted hereunder shall be deemed guilty of a felony. * * *”

The allegations in the information and the proof of the state establishing the fact that the defendant received more than $20 because of such false representations, the proof was sufficient to support the verdict of the jury.

The other errors complained of by defendant have been carefully considered, and are not deemed of sufficient importance to require a discussion in this opinion.

It appears from the record that the defendant had previously sold the complaining witness, Margaret Hilton, some lots in Muskogee county; that she was a colored woman, unable to read or write; that after her payments were completed, the defendant, being unable to give her legal title to the premises, induced her to accept the contract in the case at bar for the purchase of the twenty acres at Taft, pretending to give her credit on the purchase price for the purchase price of the lots; that defendant then collected from time to time from this ignorant negro woman payments until the full purchase price had been paid thereon; that during all of this time he was not the owner of the land and had never had any interest therein, and was at all times unable to carry out the terms of the contract he had made with her.

The maximum punishment fixed in cases of this kind is seven years in the penitentiary. The facts and circumstances as shown by the evidence in the case justify the infliction of this penalty.

No substantial error appearing upon the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    CLIFTON LOGAN v. STATE.
    No. A-7964.
    Opinion Filed Aug. 15, 1931.
    (3 Pac. [2d] 748.)
    Harris & Lackey, for plaintiff in error.
    -J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, and he was sentenced to a term of 60 days in the county jail and to pay a fine of $150.

Judgment in this case was entered on June 9, 1930. The appeal was lodged in this court on September 2, 1930. No order extending the time in which to file the appeal was made. There is an order extending the time to- make and serve the case-made; this order does not extend the time to- file the appeal. Buxton v. State, 41 Okla. Cr. 376, 273 Pac. 372; Miller v. State, 41 Okla. Cr. 367, 273 Pac. 374.

In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, unless the court or judge, for good cause shown, extend the time not exceeding 60 days’ additional. Section 2808, Comp. St. 1921. Unless the record affirmatively shows that the court extended the time beyond the 60-day period fixed by statute, an appeal filed after the expiration of said 60 days is too late, and this court does not acquire jurisdiction.

The attempted appeal is dismissed.

DAVENPORT, P. J., and CHAPPELL, J., concur.