author: DOYLE, P. J.

text:
    R. V. BOYER v. STATE.
    No. A-9565.
    Dec. 21, 1939.
    (97 P. 2d 779.)

      Glen O. Morris, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis B. Morris, Co. Atty., and. Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for the State.
   DOYLE, P. J.

Appellant, B. V. Boyer, and M. H. Curnutt were jointly charged by information, duly filed in the district court of Oklahoma county on June 26, 1937, with the crime of forgery in the second degree. Upon their arraignment, each entered a plea of not guilty, September 14th, the case was set for trial October 4, 1937. Leave was granted to withdraw their pleas of not guilty. Thereupon the defendants filed a motion to quash the information, and a demurrer thereto, both on the ground that the information does not charge an offense. The same day, following the argument, the court overruled the same. Defendant, R. V. Boyer, then re-entered his plea of not guilty and demanded a severance, which was granted.

Upon his trial the jury returned a verdict finding him guilty of the crime of forgery in the second degree as charged in the information, and fixed his punishment at imprisonment in the penitentiary for one year and one day. On March 30, 1938, his motion for new trial was overruled; thereupon the court rendered judgment in accordance with the verdict.

The petition in error, with case-made, was filed in this court on September 27, 1938.

Appellant relies upon two propositions for a reversal of the judgment. The same will be considered in the order presented.

The first is that the court erred in overruling the motion to quash the information, and in overruling the demurrer thereto.

The charging part of the information is that:

“On the 19th day of April, 1935, in Oklahoma county, State of Oklahoma, R. V. Boyer and M. H. Curautt whose more full and correct names are to your informant unknown, then and there being, did then and there willfully, unlawfully and feloniously commit the crime of forgery in the second degree in the manner and form as follows, to wit: That is to say the said defendants in the county and state aforesaid, and on the day and year aforesaid, then and there being, while acting conjointly and together, did then and there willfully, unlawfully and feloniously sell, utter, exchange, deposit and file with Helen Nix, the duly elected, qualified and acting county clerk of Oklahoma county, Oklahoma, a forged requisition on the county welfare board of Oklahoma county, Oklahoma, issued to Willie McCullough in the sum of $10, said forged requisition being in tenor, purport and effect as follows:
“ ‘County Welfare Board No. 2038, Oklahoma County, Oklahoma. Amount $10.00 (Not to be over $10.00) Case No. 1918 Requisition.
“ ‘Oklahoma City, Okla. 4-19-1935 “ ‘To the Coun ty Clerk:
“ ‘When this requisition is properly receipted and endorsed you are authorized to issue your cash voucher on the county treasurer, for payment to' the firm or person furnishing the items of food, clothing, fuel, medical or surgical necessities, or other necessary supplies authorized below and detailed on the dispenser’s receipt on the back hereof, furnished to: Willie McCullough (Case Numbered above) Address 1119 E. 4th, under authority of Section 3, Senate Bill No. 1, Fifteenth Legislature:
Quan- Quan-
tity Item Value tity Item Value
Medical $10.00
“ ‘Furthermore, this requisition is authority to any merchant, dispenser or doctor to furnish the supplies or service of the nature disclosed in the items detailed above to' a value not exceeding the value extended above.
“ ‘We further certify that the foregoing schedule correctly discloses the true condition of the state public welfare fund of this county at this time, and that this requisition is within the available balance of said fund.
Total Allotted and received from State Treasurer to date........................ $39,912.84
Total Requisitions authorized prior to' this order 12,511.95
Add above requisition ............................................ 10.00
Total requisition authorized................................... 12,521.95
Balance unexpended.................... 27,391.89
“ ‘This order is not subject to assignment for discount, and is not subject to' garnishment, or mesne or other final process. (Sec. 8).
“ ‘By Order of County Public Welfare Board.
“ ‘(Signed) Fred D. Lowe, Chairman of County Public Welfare Board.
“ ‘Attest: Coma Biewer, Secretary of County Public Welfare Board.
“ ‘Approved for payment: Fred D. Lowe, chairman of board of county commissioners as member of county public welfare board.
“ ‘This requisition is not acceptable unless the above schedule of condition is filled in. Must be signed by two members.
“ ‘Receipt for supplies or Necessities. To the County Clerk:
“ ‘I hereby certify that I have received from Tower Drug Co. Address............................the following items of necessary supplies or medical or surgical services:
Quantity Item Cost Total
“ ‘Received this.............day of............................, 19..........
“‘(Signed) Willie McCullough.
“ ‘Claim. I, the undersigned, upon oath, depose and say that the above items and amounts represent a true and correct list of supplies furnished or services rendered to the person or family designated on the reverse hereof and receipted for above, that the amount indicated above is now due and payable and that I am the person who rendered such supplies or service.
“‘(Signed) M. H. Cumutt.
“ ‘Subscribed and sworn to me this 22 day of April, 1935. (Signed) Helen Nix, County Clerk or Notary Public. (Seal)
“‘State Public Welfare Fund Claim. No. 193 Claim Case No.............by Tower Drug Co. against the State Public Welfare Fund of Oklahoma County, State of Oklahoma. Filed this 22 day of Apr., 1935, Helen Nix, county clerk; by Ruth Turner Deputy. Record of Payment. In accordance with section 7749, O. S. 1931 (19 Okla. St. Ann. § 692), and under authority of the county public welfare board set forth on the requisition within, I have herewith complied with the terms of said Requisition by issuing Voucher No. 193 Amount $102.00 on the county treasurer of this county, payable out of the State Public Welfare Fund of said county this 22 day of April, 1935. Helen Nix, county clerk of Oklahoma County.’
“With felonious intent to have the same uttered, passed, honored, and redeemed as true and genuine, and they, the said defendants, knew that the name of Willie McCullough appearing on said requisition as claimant' and owner was forged and that said requisition so signed and filed was not a true and valid requisition and the signature of Willie McCullough as aforesaid, appearing thereon was and is a forgery and not the true signature of the party named in said requisition as claimant and was not done with the knowledge and consent of the said Willie McCullough; that the county clerk of Oklahoma county, Oklahoma, believing said requisition to be true and genuine, issued voucher Number 193 which was duly signed by William F. Yahlberg, county treasurer of Oklahoma County, Oklahoma, and cashed by said defendants; that said defendants uttered, passed, deposited and filed with said county clerk the requisition aforesaid with the intent to cheat, wrong and defraud the said county welfare board of Oklahoma county, Oklahoma, and the state of Oklahoma, contrary to,” etc.

The appellant raised the question of the sufficiency of the information by motion to quash, by interposing a demurrer thereto, by objection to the introduction of evidence, and by motion for a directed verdict at the close of the state’s evidence.

The statute upon which the conviction is based, Penal Code, sec. 2125, 21 Okla. St. Ann. § 1577, provides:

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

The relevant sections of Senate Bill No. 1, Laws of 1935, ch. 24, art. 17, 56 Okla. St. Ann. §§ 2, 3 and 10, are as follows:

“Section 2. There is hereby created in each county of this State for the purpose of administering the funds to be allocated thereto under the provisions of this Act, a County Welfare Board to be composed of the Chairman of the Board of County Commissioners, the County Judge and the County Superintendent of Public Health; provided that in counties not having a Superintendent of Public Health, the County Superintendent of Public Instruction shall be a member of such board. Such board shall select one of the members as chairman and shall administer and expend the funds allocated to such county under the provisions of this Act, subject to the right of the Board of County Commissioners to approve or reject any claim for payment out of the money allocated to such county.”
“.Section 3. The primary purpose of this Act is to supplement the funds which have or may hereafter be appropriated by the County Excise Boards of the various counties of the State of Oklahoma for the indigent of the various counties. The funds provided for by this Act shall be used for the purpose of providing food, clothing, fuel, medical and surgical necessities and other necessary supplies for the destitute unemployable citizens of this State, who are, and for a period of one year prior to the passage of this Act, have been bona fide citizens and actual residents in this State, who on account of age or other infirmity are now or may hereafter become unemployable, all as defined and provided by Articles 10 and 11, Chapter 35, Oklahoma Statutes, 1931. Provided, however, that no one family shall be allowed more than $10.00 in any one calendar month.”
“Section 10. For the purpose of providing the funds for the State Board of Public Welfare to carry out the provisions and purposes of this Act for the remainder of the current fiscal year and the ensuing fiscal year to June 30, 1936, there is hereby appropriated out of any funds in the State Treasury to the credit of the General Revenue Fund, not otherwise appropriated, the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; provided however, that from and after June 30, 1935, the State Board of Public Welfare shall not allocate any monies appropriated by this Act to any county of this State unless and until the County Excise Board of such county shall have levied an ad valorem assessment in such county of at least eight-tenths of one mill to obtain funds for the care and maintenance of the poor and indigent and the widows of such county, or unless and until a satisfactory showing is made to the State Board of Public Welfare, that such county is not financially able to make such levy and yet provide for the ordinary expenses of the county government.”

The contention is made that the claim or requisition set forth in the information is not the subject of forgery under the laws of Oklahoma, and is wholly void, for the reason that the same was not identified and verified as is required by law, and is void for the reason that the same was not executed in the manner provided by law; that the purported signature of Fred D. Lowe, thereon, was made by rubber stamp, without his knowledge or consent is a nullity; that it is wholly void for the reason that it was not properly filed in the manner provided by law, nor was the same ever presented to, nor passed upon by the board of county commissioners of Oklahoma county, or any other proper board or officer as required by law, and that the county clerk was therefore wholly without authority to issue any warrant, cash voucher or other payment thereon.

The question of the legal efficacy of the instrument set forth in this information was passed upon by this court in the case of Moss v. Arnold, 63 Okla. Cr. 343, 75 P. 2d 491, 492, wherein the court held:

“A false instrument or writing, made out with intent to defraud, which is good on its face, may be legally capable of effecting the fraud, even though an inquiry into extrinsic facts or matters not appearing on its face would show it to be invalid, even if it were genuine; therefore, the forging of such an instrument of writing is an offense under the statute.
“Under the statute, an uttering of such instrument is the knowingly passing as true, or attempting to pass as true, such forged instrument with intent to defraud. Section 2125, St. 1931, 21 Okla. St. Ann. § 1577.
“In prosecution for uttering forged requisition on county welfare board, ostensibly issued to a needy person, held, instrument to be the subject of forgery within the statutory definition of forgery in the second degree.”

In the opinion it is said:

“The entire requisition is copied into the information charging the uttering of the same as a false and forged instrument, with intent to defraud. It is an instrument of writing of no doubtful significance. It falls within the designation of ‘or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency.’ The instrument shows that it is of a character capable of effecting a fraud. Taken in connection with the receipt and the affidavit of the defendant Cumutt, shown thereon, there are sufficient extrinsic allegations to show that the instrument was susceptible of being used to defraud the county welfare board of Oklahoma county. * * *
“The numerous authorities cited by counsel for petitioner show that to forge an instrument which upon its face is of no validity or binding force, does not constitute the crime of forgery. No authorities would seem necessary for so plain a proposition.
“There is no question but that an instrument, which is invalid and void upon its face, cannot be made the subject of forgery, but a false instrument, which is good on its face, may be legally capable of effecting a fraud, though inquiry into extrinsic facts should show it to be invalid, even if it were genuine; therefore, forgery of such instrument is a crime.
“ ‘Forgery’ is defined by Blackstone to be:
“ ‘The fraudulent making or altering of a writing to the prejudice of another’s rights.’ 4 Bl. Comm. 247.
“Mr. Bishop says:
“ ‘ “Forgery” is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.’ 2 Bish. Crim. Law, 8th Ed., § 523.
“From the definitions of ‘forgery’ as above stated, as well as from the statute, it will be seen that, the essential elements of the crime are, the false making of an instrument in writing, apparently capable of effecting a fraud, together with a fraudulent intent.
“In an information for forgery or for uttering a forged instrument, or for passing the same, it is sufficient to charge that it is a forged writing, was uttered or passed with knowledge of the forgery, with an intent to defraud. Wilborn v. State, 26 Okla. Cr. 437, 224 P. 214.
“In the case of Diamond v. State, 57 Okla. Cr. 214, 46 P. 2d 966, defendant Diamond was charged with forging the name of Morton R. Harrison, to a claim for $242 against the Soldiers’ Relief Commission. It was the contention of the defendant in this court on appeal that this relief claim could not be the subject of forgery. This contention was overruled. This court held that the instrument was the subject of forgery Avithin the terms of the statute.
“In the case of People v. Ciralsky, 360 Ill. 554, 196 N. E. 733, the Supreme Court of Illinois held:
“ ‘Indictment charging forgery of grocery order ostensibly issued to needy persons by public welfare bureau held good as against motion to quash; there being sufficient. allegations to show that instrument was susceptible of being used to defraud state.’ And again: ‘Forgery indictment need not allege that instrument forged, if genuine, would create legal liability.’
“In the case of Lurye v. State, 221 Wis. 68, 265 N. W. 221, the Supreme Court of Wisconsin held:
“ ‘Certificate of indebtedness issued by city, although unenforceable on account of defects in proceedings leading up to its issuance, could be subject of forgery, where carrying no evidence of invalidity on its face.’
“In the opinion it is said:
“ ‘The question for determination here is: Does the instrument in question upon its face appear to be good? The defendants point out many defects in the proceedings leading up to the issuance of this certificate. No tax was levied; the certificate was not signed by the comptroller; the city had exceeded its debt limit. It did not contain on its face a statement of the purpose for which it was issued.
“‘Section 62.12 (6) provides:
“‘“Funds; appropriations; debts, (a) City funds shall be drawn out only by authority of the council and. upon order of the mayor and clerk, countersigned by the comptroller, if there be one. Each order shall specify the purpose for which it is drawn, and be negotiable. * * *
“ “‘(c) No debt shall be contracted against the city nor evidence thereof given unless authorized by a majority vote of all the members of the council.” * * *
“ ‘The certificate of indebtedness had the appearance of validity, and could therefore be the subject of forgery.’
“And see People v. McDonald, 53 Colo. 265, 125 P. 114; Norton v. State, 129 Wis. 659, 109 N. W. 531, 116 Am. St. Rep. 979.
“It is also contended that the said claim or requisition is void, for the reason that the same was not executed in the manner provided by law, in that the purported signature of Fred D. Lowe, placed thereon by rubber stamp without his knowledge or consent, is a nullity.
“On the face of said requisition appears the following:
“ ‘By order of County Public Welfare Board,
“‘(Signed) Fred D. Lowe, Chairman of County Public Welfare Board.
“ ‘Attest: Coma Biewer, Secretary of County Public Welfare Board,
“ ‘Approved for Payment: Fred D. Lowe, Chairman of Board of County Commissioners Member of County Public Welfare Board.
“ ‘This requisition is not acceptable unless the above Schedule of Condition is filled in. Must be signed by two members.’
“It appears that more than two thousand requisitions, signed in the same way as requisition No; 2038, had been issued and paid when the one purporting to have been given to Willie McCullough was issued. All bore rubber stamp signatures of Fred D. Lowe.
“Our statute defines a ‘signature’ as follows:
“ ‘ “The term Signature” includes any name, mark or sign, written with the intent to authenticate any instrument or writing.’ Section 1791, St. 1931, 21 Okla. St. Ann. § 100.
“In 58 C. J. 729, it is said:
“ ‘A signature may be written by hand, or printed, or stamped, or typewritten, or engraved, or photographed, or cut .from one instrument and attached to another. A signature lithographed on an instrument by a party is sufficient for the purpose of signing it, and it has been held that it is immaterial with what kind of an instrument a signature is made.’
“Again, on page 730, C. J., it is said:
“ ‘Facsimile signature of a party may be a genuine signature.’
“In the case of Costilla Estates Dev. Co. v. Mascarenas, 33 N. M. 356, 267 P. 74, the Supreme Court of New Mexico announced the following rule:
“ ‘Court clerk’s signature by rubber stamp to indorsement of filing paper in cause not prohibited by general principles nor by Code 1915, § 1401.’
“And again in the same case, after quoting the New Mexico statute, it is said:
“ ‘This statute does not require the clerk to write his name; only that he sign it. Generally a signature, if adopted as such, may be printed, lithographed, or typewritten, as well as written. 33 Cyc. 443. The decisions there collected show that signatures not autographs are held sufficient to satisfy a variety of statutory and other requirements.’
“See, also, Tenement House Department v. Weil, 76 Misc. 273, 134 N. Y. S. 1062.
“The state’s contention is that the requisitions were not invalid because Fred D. Lowe’s signature was a facsimile.
“There can be no question but that officials of and persons in the county welfare board, the county clerk’s office, and the county treasurer’s office furnishing aid to relief claimants, depended upon the signatures of Fred D. Lowe as affixed to these requisitions, as having been duly authorized and adopted by Fred D. Lowe.
“The authorities support the state’s contention, and we are of opinion that the facsimile signatures thereon were sufficient to authenticate the requisitions so approved including the instrument in question.
“It is also contended that one signature, that is, the secretary of the county welfare board, is not in compliance with the requirement that two members must sign.
“In Luyre v. State, supra, the Supreme Court of Wisconsin quoted this language, which was superimposed upon a forged certificate:
“ ‘This Certificate of Indebtedness shall not be discounted. This Certificate of Indebtedness if discounted will cease to be an obligation of the City of Superior.’
“The Supreme Court of Wisconsin, nevertheless, held this certificate subject to forgery, even though it had been discounted. In other words, the requirement superimposed on the face of the requisition, in the absence of. express statute, could not be a condition of the contract or requisition.
“The schedule of condition is filled in; the balance in the relief fund is carried forward according to the requirement of the requisition.
“The claim was properly verified before Helen Nix, county clerk, and attested by the seal of the office, as shown by the copy of the requisition set forth in the information.
“It follows from what has been said that the information alleges all the essential elements of the crime of uttering a forged instrument, with intent to defraud, and gives to defendant full information of the nature and cause of the accusation against him, to which he is entitled under section 20, article 2 of the Constitution of the State, Okla. St. Ann. And, aside from any authority, we should hold the information good, since it plainly and with sufficient fullness follows the language of the statute upon which it is drawn.”

In the case at bar we are of the same opinion as to the legal efficacy of the instrument in question. The overwhelming weight of authority on this question is in accord with the holding of the court in the case of Moss v. Arnold, supra.

The following text of 23 Am. Jur. Forgery, sec. 32, is supported by numerous authorities:

“The crime of forgery has been extended by statute, and to considerable extent by judicial construction, until it covers nearly every class of instruments known to the law as affecting private or public rights, including letters and indorsements. It is also apparently well settled that the alteration of an instrument in the form of a receipt is forgery if all the other elements necessary to constitute the offense are present. The courts have also ruled, with reference to whether a particular instrument is within a particular class so as to come within the operation of a statute defining the offense of forgery, that a receipt for money on account is an acquittance; that a bank deposit slip is evidence of debt; that a railroad ticket or pass is or may be an instrument purporting to create a liability, that a request for the delivery of personal property, with a promise to return it, is a writing obligatory; that a re-" quest or direction for the delivery of goods over which the ostensible writer has no control, with an undertaking to pay therefor, is a writing purporting to create a pecuniary liability, or a writing to the prejudice of another’s right, or is an ‘order’ for property, but that an authorization to solicit and receive donations to a specified purpose is not an order for money or property; that a testimonial of character is a subject of forgery; that a letter of introduction representing one as the friend, etc., of the person whose name is signed to it is a representation of the sentiments, opinions, etc., of another. Generally, however, the substance of the instrument as distinguished from its form is determinative of whether it may support a charge of forgery; and the question most often arising on the character of the instrument relates not so much to' the matter of generic classification as to the more specific inquiry whether the instrument imports or embodies some one or more of the other elements of the crime, especially falsity and, on the assumption of genuineness, efficacy to affect the rights of others.”

. Section 35 is in part as follows:

“Thus, it has been held that it is sufficient to render one guilty of forgery if he procures its commission or is present and aids and abets another in procuring it.” Citing Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251.

It appears from the record that the money involved in this case, allocated to Oklahoma county to1 be disbursed from the time Senate Bill No. 1 became operative, March 9, 1935, was placed in a fund to itself, and that no other fund was commingled with this particular fund until after June 30, 1935. In other words, the law provided for the county to contribute to the fund after June 30, 1935. There was no provision of law for money to be furnished by the county during the time involved, and the evidence shows that no county money was allocated with which to pay these requisitions.

The record shows that under Senate Bill No. 1, Laws 1935, the State Examiner and Inspector promulgated rules and regulations for the distribution of money allocated to the various counties, including Oklahoma county, and that the procedure followed by the Oklahoma County Welfare Board, complied with the same and created a debt and obligation against the fund when the requisition was issued and merchandise furnished to the poor by the merchants as shown by state’s exhibit 1, as well as the other exhibits in the case.

Appellant, R. V. Boyer, as the director of the Oklahoma County Welfare Board, was charged with the duty and responsibility of disbursing this money for the specific purpose it was allocated to Oklahoma county, and no claim would be allowed without his approval. The merchants furnishing the groceries and supplies as called for by the requisitions, knew and were required to make claims and file them with the county clerk, in order to receive payment for the same from the County Welfare Board fund for merchandise and supplies so furnished by them.

It will be observed that, under the wording of our statute, the instrument need not in fact create any liability. The language used is “or other evidence of debt or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited; with intent to have the same uttered or passed.” Whether or not the claim was paid or not paid, or whether the payment was made in strict compliance of the law or was irregularly paid, does not constitute any defense for the crime of forgery in the second degree, as charged in the information.

To be within the literal reading of the statute the false instrument may not in fact be such that, if true, it would have created any liability whatever; it is sufficient if it be such an instrument the design or meaning of which is to create such a liability, though in fact it may not be so. State v. Sherwood, 90 Iowa, 550, 58 N. W. 911, 48 Am. St. Rep. 461.

Where there is a present intent to defraud, the crime of forgery is complete, whether the expected advantage is to accrue from it to the defendant personally, or to another, or whether that purpose is successfully attained or not. State v. Cross, 101 N. C. 770, 7 S. E. 715, 9 Am. St. Rep. 53.

In People v. Whitaker, 127 Cal. App. 370, 15 P. 2d 883, it is held that the crime of forgery is complete when one either makes or passes a false instrument with intent to defraud.

In Norton v. State, 129 Wis. 659, 109 N. W. 531, 116 Am. St. Rep. 979, it is said:

“It is immaterial that the instrument is not available for reasons not appearing on the face of it. If it is falsely made with intent to defraud and apparently sufficient on its face it is a forgery, though other steps, were required to be taken, if it were genuine, to perfect it in plaintiff in error’s hands. This is upon the ground that an instrument, apparently valid on its face, is only voidable, if genuine, by impeaching it directly. And so here, if plaintiff in error had passed this check, which is complete and valid on its face, its invalidity would be made to appear enly by extrinsic evidence impeaching its apparent validity. Under such circumstances the instrument, if falsely made with intent to defraud, is held to be a forgery because it purports to be good. Commonwealth v. Costello, 120 Mass. 358.”

The Supreme Court of Colorado, in People v. McDonald, 53 Colo. 265, 125 P. 114, held that:

“Where a person attempted to have cashed a forged check payable to the order of another, the fact that the check was not indorsed did not render the act any less forgery, and the exclusion of the check from evidence on the ground that it had no legal efficacy and was not the subject of forgery was error.”

And see McCoy v. State, 161 Ark. 658, 257 S. W. 386.

In the case of State v. Curley, 13 Okla. Cr. 25, 161 P. 831, the trial court held that because the names indorsed on the back of the check were not pleaded in the information there was a fatal variance between the proof and the allegations of the information. On appeal this court held:

“This was error because the crime charged was that the forged check had been uttered and passed, and the only function that the names of the indorsers on the back of the check performed was to furnish evidence as to the identity of the parties who uttered and passed the check.”

In Taylor v. State, 65 Okla. Cr. 432, 88 P. 2d 665, this court held:

“Under forgery statute, if any fraudulent advantage accrues to accused, or any injury is suffered by person imposed on, it is sufficient for conviction, without necessity to prove that money or property was obtained thereby.”

In the case at bar, the evidence shows or tends to show that when appellant, Boyer, issued requisition' No. 1, and the ten other exhibits which were filed by M. H. Cur-nutt, he was acting conjointly with his codefendant, Cur-nutt, the actual utterer of the instruments, with a common purpose and fraudulent intent to effect a fraud upon the County Welfare fund of Oklahoma county, and it is undisputed that the name of Willie McCullough, as claimant on said instrument, exhibit No. 1, was a forgery, and according to the evidence in the case, appellant and his codefendant did, by uttering and passing to the county clerk of Oklahoma county, a forged instrument as charged in the information, effect a fraud knowingly as was intended by them.

The essence of forgery is the making of a false writing with the intent that it be received as the act of another than the party signing it.

In the case of Grayson v. State, 12 Okla. Cr. 226, 154 P. 334, it is said:

“Where the evidence tended to prove that certain persons entered into a conspiracy to forge a deed for the purpose of defrauding another person of the land therein described, the profits to be a division of the land or a division of the proceeds, anything said or done in furtherance of the conspiracy by any of said conspirators, between the execution of the deed and the accomplishment of the further purpose of the conspiracy, is admissible in evidence against a coconspirator on a prosecution for the forgery.”

It follows, from the foregoing review and the well-settled rule announced in the authorities cited, that the information alleges all of the essential elements of the crime of uttering a forged instrument with intent to defraud, and the trial court did not err in overruling the demurrer to the information. It follows that the motion to quash and the demurrer thereto were both properly overruled.

The second proposition urged by counsel for reversal of the judgment is:

“That the court erred in overruling the appellant’s objections to the introduction of testimony on behalf of the state consisting of requisitions and records relating thereto.”

In support of this proposition it is urged that the court committed reversible error in admitting evidence tending to show the commission of other offenses similar to the offense charged in the information.

In appellant’s brief it is said:

“The state, at the trial, in order to obtain a conviction attempted to and did introduce evidence, over the objections of the defendant in an attempt to show some scheme or plan to connect this defendant with the crime as charged, to wit, forgery, and although this evidence may tend to create a suspicion of guilt for the commission of some other crime, yet, your defendant submits that this evidence was wholly incompetent, irrelevant and immaterial and influenced the minds of the jurors and that the same is not admissible under any rule' of evidence.”

It appears from the record that eleven requisitions, Exhibits 1 to 11, both inclusive, were filed by M. H. Cur-nutt, codefendant, and paid for by one voucher.

Appellant, R. V. Boyer, director of the Oklahoma County Welfare Board, wrote each of the requisitions, and signed the name of the secretary, Comanan Biewer; the initials R. V. B. on the requisitions under the secretary’s name. It appears that these requisitions were issued to persons living at widely divergent places in Oklahoma City and county, yet all eleven managed to get into the hands of H. M. Curnutt in the Tower Drug Store, and it appears that these requisitions were issued approximately the same time, and came to said drug store approximately the same time. It also appears not only were the requisitions written by R. Y. Boyer, but they were posted to the yellow card by him, and in his own hand writing. The persons by whom the claims purported to have been made and signed testified that they never signed the claims or received said requisitions nor authorized any one else to sign or get them.

The requisition which is the basis of this prosecution is state’s Exhibit “1”, and purports to have been issued to Willie McCullough, the other ten requisitions which went to M. H. Curnutt, in the Tower Drug Store, are numbered 2030 to 2040, both inclusive.

The claims and requisitions issued thereon being fabricated instruments, similar to the one set forth in the information in every respect, except in regard to signature of claimants, they were admissible in evidence as a part of the res gestae, and as forming a part of a single scheme or fraud whereby, voucher No. 193 ($102) on the county treasurer of Oklahoma county, payable out of the State Public Welfare fund of said county was issued, as alleged in the information.

It is also urged that the court erred in admitting in evidence additional requisitions which were issued on relief cards by appellant, Boyer, and where the claimants named thereon denied their signatures on said requisitions and also denied that they had ever received the requisitions issued in their names and the proof showed or tended to show that the same were forgeries.

We do- not deem it necessary to set forth these instruments or detail the evidence showing or tending to show that they were forgeries.

The question presented has been passed upon by this court in numerous cases.

In the case of Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, 844, Ann. Cas. 1916A, 689, it is said:

“Generally speaking, evidence of other crimes is competent tO' prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to' connect the defendant with the commission of the crime charged.”

In State v. Rule, 11 Okla. Cr. 237, 144 P. 807, it is held :

“As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:
“(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
“(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
“(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to' form a part of the res gestae.
“(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.
“(e) In support of an information, charging the filing of a false claim with intent to defraud the state, and that by such false pretense the defendant did obtain from the State Auditor a warrant for the amount of the claim, evidence is admissible of other instances when he did the same thing as tending to show guilty knowledge or intent, and that the offense charged was a part of a plan or scheme to cheat and defraud the state.”

In Herndon v. State, 16 Okla. Cr. 586, 185 P. 701, 702, it is held:

“Evidence of offenses of similar nature committed by an accused, other than the specific offense for which he is being tried, may be properly admitted in evidence to show the intent of the accused, notwithstanding such evidence tends to prove accused guilty of other and distinct offenses; the field of operation of such evidence to be confined by the instructions of the court to the jury alone to establish intent or some element of the offense charged.”

In Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592, this court said:

“It is also argued that the court erred in admitting testimony of other offenses. There was testimony that defendant at about the same time under similar circumstances passed several other forged checks in the same manner as the check, and for approximately the same amount in this case. This was admitted under the well-settled rule that proof of other offenses of similar character, and near in point of time, is relevant and admissible to show a system of criminal action and the knowledge and intent of the accused and to show the act charged was not an inadvertence. The testimony was clearly competent. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Harrell v. State, 43 Okla. Cr. 278, 278 P. 404.”

The text of 23 Am. Jur., Forgery, Sec. 59, is in part as follows:

“The legal inference that a person is presumed to intend the natural consequences of his acts, which is sometimes conclusive, is not necessarily of itself of much force in cases of forgery or of uttering forged paper. For this reason, it is generally held that proof of similar acts of forgery or of uttering is admissible as bearing on the question of the intent with which the act of forgery or uttering of forged paper for which the defendant has been informed against was 'committed. The fact that the defendant was under indictment for the forgery of some of the instruments so admitted ¡in evidence does not affect their admissibility in evidence.”

We are of opinion tjhat evidence of other similar transactions, whether before issue, and was not ma They were acts of appell actions and were precii or afterwards, was relevant to the de inadmissible by reason of the fact that it would tend t> prove appellant guilty of offenses other than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge or the intent with which the act charged was committed. ant in a continuous series of trans-ely of the same character as the act for which he was being tried, and tended to show that appellant fabricated certain other requisitions of a like character. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved, evidence of the latter may be given to show the character of the former. It follows that the court did not err in its rulings in the admission of the evidence objected to.

Upon a careful consideration of the entire record we see. no reason to doubt lhat this conviction was fully warranted by the evidence.

A conspiracy to' defraud is necessarily or usually made up of a series of facts and circumstances, and it is sufficient if the facts and circumstances shown in evidence are finally connected so as to make a prima facie case of conspiracy.

A conspiracy, leading up to the commission of the crime charged need not be established by direct evidence, but may and generally must be proved by a number of independent acts, conditions, and circumstances. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful common purpose. Mathews v. State, 19 Okla. Cr. 153, 198 P. 112.

This' case was fully briefed, and was ably argued by counsel for appellant at the time of its submission. After careful examination of the voluminous record, comprising more than 800 pages, this court has given careful consideration to the propositions urged as reasons for a reversal of this judgment, and the authorities cited in support thereof, and a consideration of the argument made fails to convince this court that any error occurred from the inception of this prosecution to its close, prejudicial to the substantial rights of appellant.

Upon consideration of the whole case we are convinced that appellant had a fair and impartial trial, according to the forms of law. The judgment of conviction must therefore be affirmed. It is so ordered.

BAREFOOT and DAVENPORT jj., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    TOM ALBERTY v. STATE.
    No. A-9546.
    Dec. 21, 1939.
    (97 P. 2d 904.)

      Joe Eaton, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

Tom Alberty, the defendant in the trial court, was by information jointly charged with Leo Bailey and George Siggins; was tried separately, found guilty, and sentenced to serve a term of five years in the state penitentiary. Motion for a new trial was filed, considered, and overruled; and the defendant appeals.

Ed Jones, the prosecuting witness, in substance testified for the state that he had lived in the city of Henry-etta since 1932.

“The defendant came to my house in the afternoon of the 21st day of November, 1934, in company with Willie Elmore and these other parties. Elmore introduced Bailey, Siggins, and Alberty to me. I had never met any of these parties prior to that day. They wanted to buy some whis-ky. I told them I did not have any whisky, and that they could buy it from some other parties as cheap as I could. I told them I would try to buy the whisky and they went away. I told them to be back about 7 o’clock.
“These parties were at my house about thirty minutes the first time they came They returned and knocked on the door; came in and wanted me to take a drink of whis-ky. I told them I didn’t drink. They wanted to know if I had found the whisky. I said, ‘Fool around for awhile.’ T went and got in my car and went to Blackie Myers’ on the hill. He didn’t have any. I came back and put my car in the garage. As I was closing the door, I was assaulted and robbed of $24 in money.
“I was struck by Siggins; and, I think, I was struck by the defendant Alberty. I did not know. I had never met either of these defendants prior to that night.”

The witness denied that he was engaged in the whisky-business.

“While I was putting my. car in the garage, the parties that robbed me drove in the alley within 20 feet of my garage, behind me; then Siggins said, ‘Did you make it?’, and just hit me on the head with the gun; then Alberty hit me. I couldn’t tell what he hit me with. I was knocked out, cut on the face. Bailey got out and beat me with the gun. I had a little better than $24 in my pocket.
“I never saw Tom Alberty, the defendant in this case, after that time until the preliminary. It was 10 or 15 days though.
“This occurred in Henryetta, Okmulgee county, Oklahoma, November 21, 19-84. The parties came to my house because Elmore said I might know where they could get some whisky. I knew some who did handle whisky. I went out and tried to find out where I could get whisky for them. I went to Blackie Myers’ and other places.
“They didn’t strike me from behind; they struck me square in front. I did not talk to them before they hit me. Siggins said, ‘Do you have it?’ ‘No,’ I said about the same time he hit me. I wasn’t able to sit up for three days.
“When the defendant came down here, he had on work clothes.”
“Q. What is there about this man that makes you think he is the man? A. I picked his picture out of about 50. Q. I didn’t ask that. A. I talked to' him twice. Q. What is there about him that makes you think he is the man? A. Because I remember him. Q. You just remember him? A. How else would I remember? Q. Anything you can point to and describe that would pick him out from any other man? A. Wouldn’t yon know me the first thing? Q. Not asking, you that. You could be mistaken — ■ you can be mistaken sometimes? A. I might be in some small things, but take a fellow who wants you to go to a friend to buy whisky, you really look him over. Q. You w'ere not in the whisky business? A. No, he come to a friend of mine to see if I could get it Q. You looked him over? A. Yes, sir. Q. That is the reason you remember him so well? A. Just know him, that’s all there is to it.”
Fannie Jones stated that she was the wife of Ed Jones on November 21, 1934, living at 902 West Division in Henryetta, Oklahoma.
“About five o’clock, November 21, 1934, three men drove up in a red wheeled Chevrolet coupe with a rumble seat. I noticed Mr. Jones and Mr. Elmore sitting on the porch. This party was on the east side of the car. He had on work clothes and a khaki cap.
“About supper time while we were having supper, I heard a knock on the door, and I started to get up, and my husband said, ‘I will go.’ This defendant and two others were standing in the door. I didn’t know the gentlemen. One said, ‘Have you gone yet? I said, ‘What on earth?’ Mr. Jones said, ‘No,’ he would go. He told me he was going out to see if he could get some liquor.
“In about 30 minutes Mr. Jones came in bloody as a hog. He had a cut on his head, the side of his face, and his head was broken in. I called Tom Liddell and Dr. Kil-patrick. The next night Tom Liddell and Cliff Sullins brought a big lot of pictures. By Mr. Eaton: That is incompetent. By the Court: Yes. I saw the defendant Alberty at the preliminary. I identified him as one of the three that came to our house. The fellow that sat in the middle didn’t have a hat. The one at the steering wheel was a little taller and had on a hat. When they came to the door about seven o’clock, this fellow didn’t have his cap on. They all left the house together.”

On cross-examination the witness stated that about 6 o’clock in the afternoon before the alleged robbery was the first time she ever saw the defendant.

“It was about dark when they came to our house. I met Jim Hammond the next morning. I didn’t inquire what the men came to our house for. I had an idea what they came to our house for, but I really didn’t know. Mr. Jones told me what they wanted. I didn’t see them any more from that evening until the preliminary. The defendant is one of the men that were at our bouse. He suits my recollection of one. He had on work clothes and a khaki cap. I have been mistaken lots of times in trying to identify people. I cannot point out anything that would make me know him. I didn’t pay that close attention to him. I don’t believe I ever mistake somebody for anybody else. I don’t claim to be perfect at identification.”

Willie Elmore, testifying for the state, stated:

“I lived in Henryetta on November 21,1934; was living north of town. I know the defendant Tom Alberty. I know when he was out to my place. I had seen him a few times prior to that. I had come from town on the day of the alleged robbery. I live about a quarter north of Henryetta. These parties drove down to the section line and overtook me. Leo Bailey and this defendant and, I believe, they introduced me to another fellow as Steadham or Stead-man ; never saw him before. Leo' Bailey called me over to the car and wanted to know if I knew of anybody who had any whisky. They asked me where a fellow named Allen lived. They said they were going to have a party in Tulsa and wanted some whisky. I told them several people in Henryetta handled whisky. He said, ‘Pay you well.’ I went to town with them to see Jones, the prosecuting witness in this case. Got out of their car and called Jones out. He told them they could buy the whisky cheap as he could, but told them he would try to locate some and to come back at 7 o’clock. They drove me back out home. I never saw them after that.”

Cross-examination:

“Q. That has been about four years ago, hasn’t it? A. Count it yourself. Q. I asked you. By the Court: Answer his questions. A. About four years, I guess. I don’t remember every word that was said. I work on the W. P. A. I was farming at that time, about four miles and a half north of Henryetta. Leo Bailey had been to my house to a dance, a hoe-down. I guess he lived at Okmul-gee, I couldn’t tell. Q. Leo Bailey lived in the penitentiary a long time, do you know that? A. No, not at that time. I couldn’t swear I ever saw the defendant before the evening of November 21, 1934. Q. Were you ever mistaken in your life? A. I don’t know. I never saw Bailey after that evening until I saw him here in court at the preliminary. Bailey had been to my house to a dance with Ode Hammond. When I met these boys, Leo Bailey began the conversation. The defendant in this case didn’t do any of the talking. I was not in the whisky business. I had been later back. I was convicted one time in Okmulgee. The last time I had been in the whisky business was six years ago. I took these parties to Jones’ place, thinking he might tell them where they could get the whisky. He was not in the whisky business at that time, I don’t reckon. I recognize the defendant from his face. You see a man once. He has a scar on his face on the left side. As well as I remember he had his cap on and khaki pants. I do not remember the kind of jacket. I do not mean to say to the jury that I could not have been mistaken. I sure saw the defendant at the preliminary. I had never seen Siggins before that date. I saw iSiggins at the preliminary.”

On redirect examination:

“Q. You couldn’t say whether he jumped his bond or not, could you? A. No, sir.”

Tom Liddell, a witness for the state, stated that he was chief of police of the city of Henryetta.

“I know Ed Jones, the complaining witness. I remember the evening that it was alleged that he was robbed. I went out to' his place that night about eight o’clock. I saw Mr. Jones. There was a hole in one side of his head and one side of his face or somewhere, plumb in. I went out to investigate this alleged robbery. By Mr. Eaton: We object to that as not binding on this defendant, incompetent, irrelevant, and immaterial. By Mr. Wallace: He can tell what investigation he made. By the Court: He can tell what he found — not any conversation except in the presence of the defendant. A. Do you mean what investigation I made about the parties? Q. Your purpose was to investigate this robbery, was it? A. Yes, sir. Q. Without telling what he said, did Mr. Jones describe these parties to you? By Mr. Eaton: I object as leading and suggestive, incompetent, irrelevant, and immaterial. By the Court: Overruled. By Mr. Eaton: Exception. A. Well, he described the height of them, tried to describe them the best he could. Q. Did he later describe these parties? A. Yes, sir. Q. Where was that? By Mr. Eaton: Objected to as leading. By the Court: Don’t lead. By Mr. Wallace: That is preliminary. By Mr. Eaton: This is purely hearsay; he has told what this prosecuting witness did. All based on hearsay. Q. You helped locate these parties? Tell the jury what you did in the way of locating them. By Mr. Eaton: I object to that as incompetent, irrelevant, and immaterial. By the Court: Overruled. By Mr. Eaton: Exception. By the Court: Just tell what you did towards the investigation of this case. By Mr. Wallace: About locating these defendants. A. Well, sir, I took a bunch of pictures down to— By Mr. Eaton: Object to that. By the Court: Overruled. By Mr. Eaton: Exception. A. — to Jones’ house. Q. What kind of pictures? A. Pictures we had gotten from McAlester, the penitentiary. Q. Did these pictures have names on them? A. Yes, sir. Mr. Jones picked these three — . By Mr. Eaton:'I object to that — . By the Court: Mr. Jones’ statement would not be competent. The witness can testify he took the pictures out there. It is not competent for him to say what Mr. Jones said. By Mr. Wallace: Yes. Q. You took these pictures from McAlester, you took them out there? A. Yes, sir. By Mr. Eaton: Wait a minute— we object as incompetent, irrelevant, and immaterial. By the Court: Overruled. By Mr. Eaton: Exception. By Mr. Wallace: (continuing) Q. For what purpose did you take them out? By Mr. Eaton: We object as incompetent, irrelevant, and immaterial, not binding. ' By the Court.: Objection sustained. Q. Did Mr. Jones look a,t the pictures? A. Yes, sir. By Mr. Eaton: I move to strike the answer. By the Court: Overruled. By Mr. Eaton: Exception. Q. About how many pictures did you have there? By Mr. Eaton : We object to that as incompetent, irrelevant, and immaterial, not binding on the defendant. By the Court: Overruled. By Mr. Eaton: Exception. A. 40 or 50. Q. 40 or 50? How long after Mr. Jones examined the pictures until this defendant — these defendants —were arrested? By Mr. Eaton: We object. All based on hearsay, not binding. By the Court: Overruled. By Mr. Eaton: Exception. A. Well, probably 14 or 15 days.”

Cross-examination by Mr. Eaton:

“Q. Where are these pictures? A. I don’t know; I gave the bunch to Barney Jameson at the show, I don’t know where they are. By Mr. Eaton: We object to all this conversation, incompetent, irrelevant, and immaterial, not binding on the defendant, and ask the court not to consider it. By the Court: Overruled. By Mr. Eaton: Exception.”

The foregoing is all the testimony introduced by the state.

Jake Alberty, testifying for the defendant, stated that he was 74 years old and lived in West Tulsa, Okla.; that he was born in what is now Oklahoma, a few miles from the Arkansas line; that he served two terms as sheriff of Adair county, Okla., Stillwell being the county seat.

“The defendant Tom Alberty is my son. I have lived in Tulsa fifteen years; live now at 2304 South Phoenix, West Tulsa, Okla. I have never been arrested. I remember when Tom was arrested about four years ago for the offense on which he is now being tried. He Avas living at home at that time. I think it was Thursday that he was arrested. I learned in the next few days what he was arrested for. When I came home from work on Wednesday afternoon, the day before the alleged robbery in the evening, Tom was at home. After lunch he went up town. He came back home about 9 or 10 o’clock, I guess. My wife and I had gone to bed. He was there the next morning Avhen we got up.”

Cross-examination:

“November 21,1934, was Wednesday. Tom, the defendant, was not working that day. I don’t know Leo Bailey; see him off and on. I believe that I had seen him prior to November 21, 1934. I was never personally acquainted with him. He never did come to my house. I did not see him and Tom associating together. I don’t know where Leo Bailey is now. I have not seen him but once since he came back from the penitentiary. I have seen George Sig-gins, but was never acquainted with him. I did not know there was such a man prior to November 21, 1934. I saw him first when he was down here in jail. My son sat down and ate his lunch about 4 o’clock in the afternoon. He was at home the next morning when I went to work. After he got through eating he stayed a few minutes and went up town. I saw him the next morning. I got up about 5 o’clock. I knew he was in bed as I had to pass through his room when I started the fires. It was Thursday morning that he was in bed. I heard him when he came in that night to go to bed. I don’t know whether my son and Leo Bailey were together when they were arrested or not. I went out of business as sheriff of Adair county in 1916.”

The defendant Tom Alberty, testifying in his own behalf, stated:'

“My name is Tom Alberty. I am 25 years old. I never was in jail until after I was arrested and brought down here. I did not know George Siggins until after he was arrested. I just did know Leo Bailey. I was not in Henry-etta on the 21st of November, 1934, with these boys or at any other time. I never saw Ed Jones until today. I never have been in the penitentiary. In 1934 I weighed about 135 pounds. I weigh 180 pounds now. In 1937 I pleaded guilty to the possession of whisky at Tulsa.”

Cross-examination:

“I live in Tulsa now. I was living there on November 21, 1934. I worked in the oil fields. I did not personally know Leo Bailey. I became acquainted with him; he lived over there in West Tulsa and he had a murder trial. I got acquainted with him just after the trial. I was not a witness in the case. After the trial I saw him a time or two. That was in 1933, I think, about six months before this robbery occurred. After we got out of jail down here, I think he went to the penitentiary. Q. For what charge? By Mr. Eaton: We object. By the Court: Overruled. By Mr. Eaton: Exceptions. A. If the truth was known, this man Bailey was on a parole. By Mr. Eaton: How can this be material? All hearsay. By the Court: Co ahead. By Mr. Wallace: Q. Was Leo Bailey also engaged in the liquor business? A. No, sir. Q. What was his racket? A. I don’t know. Q. What did he go to the penitentiary for? A. I don’t know. On parole or something. He has been in the penitentiary since this case was filed.”

The witness continued:

“Leo Bailey was put in jail about the same time I was, but not the same day. I was arrested first and put in jail at Tulsa, After I had my lunch at home that evening, I went out that night to a pool hall; remained there until they closed. I guess about eleven o’clock. I arrived at the pool hall about six o’clock. I don’t know the exact time. I did not know George Siggins until after we got in jail down here. I have not seen Leo Bailey since he got in the penitentiary; heard he was out. If they had a picture of me with a number of others, I don’t know how they got it. I never served a term in the penitentiary. I was never photographed in any penal institution. The scar on the left side of my face has been there ever since I was a kid. I had a blue serge suit on when I was arrested, and was wearing a hat; never wore a cap since I was a kid. I do not know the witness Elmore. The first time I ever saw him was when he came on the witness stand awhile ago.”

Jake Alberty was recalled, and stated:

“My son, Tom Alberty, was never convicted of any crime or served a term in the penitentiary at McAlester or any other penal institution.”

Clyde Blakely, testifying for the defendant, stated his name was Clyde Blakely and that he had lived in Tulsa since 1903.

“I am a merchant police. I have served in that capacity 15 years this coming July. I have served as an officer in the state about 35 years. I have known Mr. Alberty since 1922 or 1923. I know the defendant in this case. They used to be my neighbors.”

The witness testified that the defendant’s reputation in the community in which he lived in Tulsa was good.

“If he was engaged in the liquor business, it was since that time. I have seen some awfully good men mixed up in the selling of whisky. I have never been engaged in selling whisky. When I am down town of afternoons, when I get up, I see him around with the other boys. He may play a little pool, I don’t know. He works sometime in his father’s place to relieve him temporarily while his father was sick.”

On cross-examination the witness stated that Mr. Al-bertos family all have good reputations.

Bob Conner testified for the defendant:

“I have lived in Tulsa 28 years. I have known Jake Alberty, the father of this defendant, for 15 years. I run a tourist camp now. I had a plumbing business for sometime. I have lived in Tulsa 28 years, but known them 15. I have known the defendant as long as I have known his father.”

The witness stated that the defendant’s reputation was good.

“On November 21, 1934, I was living at 3710 South Sapulpa Road, where X had a tourist camp. This camp is about a half mile from the defendant’s home. I have 27 cabins. He comes out to see me occasionally. Not for any particular purppse; comes out to visit with me. I could not say what work he was doing on November 21, 1934, nor could I say how long it had been since he had had a job. He was on made work, when he worked that way. I couldn’t state the date. Q. Are you hard of hearing or does the passing trains bother you? A. Hard of hearing. Before I had the tourist camp, I was in the plumbing business. I have never been convicted of violating the liquor laws.”

The state recalled the defendant Tom Alberty for further cross-examination.

“Q. Do you know a party living near Henryetta named Jim Hammond? A. Used to know him in Tulsa a long time ago; not acquainted with him, just know of him, never knowed him. About the time of this robbery I was not at the Hammond home with Leo Bailey. I was never in Jim Hammond’s home in Henryetta.”

Jim Hammond was called as a witness, and the defendant objected to the witness testifying on the ground that he was not used in chief. The witness stated:

“I know the defendant Tom Alberty; have known him since 1927. I know Leo Bailey; have known him all his life. I recollect of hearing about Jones being robbed. Q. Along about that time did you see Tom Alberty and Leo Bailey here in Henryetta? By Mr. Eaton: Objected to. By the Court: Overruled. By Mr. Eaton: Exception saved. By Mr. Wallace: Q. Answer the question. A. I did not. Q. Did you see them near Henryetta? A. They was at my place. I don’t know what time it was. The boys were at my place several times; used to visit with me. Q. That was sometime about the time of the robbery. A. I don’t know. I couldn’t tell you. I did not keep tab. I couldn’t tell you when they came to my house together. Q. I will ask you if they came to your house if they were looking — if they were inquiring for anything? By Mr. Eaton: That wasn’t asked this defendant; not in rebuttal of anything. By the Court: Overruled. By Mr. Eaton: Exception. Q. When they came by your house did they inquire for any particular person? A. Who do you mean came to my house? Q. Tom Alberty and Leo Bailey. A. No, they were not inquiring for anything in particular. Q. Do you know whether they were with Willie Elmore that day? A. No sir, I don’t. I don’t know whether they have ever been to my house but one time.” Q. Are you related to either one of these boys? A. This boy Bailey is my nephew.”

Ed Jones was called in rebuttal. “I am the complaining witness in this case.”

Fred Alberty was called in surrebuttal.

“My name is Fred Alberty, and I am a brother of the defendant. I am older than the defendant. I live in Tulsa, Okla, I have met and seen Jim Hammond since I have been here. Jim Hammond mistook me for Tom. I was standing down in front of the courthouse yesterday morning. He walked up and said, ‘Hello, Tom.’ I afterwards told him he was mistaken.”

On cross-examination the witness stated:

“I said, ‘Yonder goes Tom.’ Hammond went on down and spoke to Tom. I don’t know whether he shook hands with him or not.”

The foregoing is the substance of all the testimony taken at the trial.

The defendant has assigned 13 errors alleged to have been committed by the court in his trial. The errors the court will consider first are assignments 3 and 13. Assignment 3 being as follows:

“For that the court erred in admitting over the objection and exception of the defendant incompetent, irrelevant and immaterial evidence.”

And assignment 13:

“That the court erred in overruling plaintiff in error’s motion for a new trial to which rulings plaintiff in error at the time excepted.”

The question for this court to determine from the record before it is, Did the defendant have that fair and impartial trial guaranteed to him by the Constitution and laws of our state?

In Sutton v. State, 35 Okla. Cr. 268, 250 P. 930, this court stated in the first syllabus:

“Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.” Chuculate v. State, 36 Okla. Cr. 404, 254 P. 984.

There is no controversy that the prosecuting witness, Ed Jones, was robbed on the 21st day of November, 1934, at his garage near his home in the city of Henryetta, Ok-mulgee county, Okla.; but it is disputed by this defendant that he was present on that night and took any part in the robbery.

It is further disputed that he was in the city of Henry-etta on the night of the alleged robbery of the prosecuting witness, Ed Jones.

Ed Jones and his wife testified for the state, and also Willie Elmore.

The record discloses that Jones and Elmore had at one time or another been engaged in the whisky business. Jones says he was not in the whisky business at that time, and so does Elmore, one of the state’s witnesses who attempts to identify the defendant in this case.

It is shown by the record that whoever the parties were that met Elmore and asked him about getting some whisky were driven by Elmore to the Ed Jones place. El-more stated that he thought Jones might be able to tell the parties where they might find some whisky. Elmore’s testimony clearly shows that he was familiar with those who were and had been handling whisky.

Neither Ed Jones nor his wife had ever seen the defendant before that evening. It was dark; and they state it was about dark when these parties came to the Jones home. They attempt to describe the way the parties were dressed; and the testimony of the defendant upon that question contradicts and shows clearly that he was not dressed as they said he was, and that he had never worn a cap since he was a child.

So far as the testimony shows, the prosecuting witness did not see the defendant from the date of the robbery until the preliminary, which was several days thereafter. Neither Mr. Jones nor Mrs. Jones had any specific description of the defendant by which they claim to have identified him other than their natural view of him which was, as shown by the record, in the night-time. The only time there is any evidence of a light being turned on is when they claim the parties, whoever they were, came back to the Jones home about seven o’clock that evening, and Ed Jones turned on the light. After they had seen the defendant at the preliminary, the witness Elmore attempts to say that he recognized the defendant by reason of a scar on his face. Neither of the other state witnesses makes any mention of this scar, and do not claim to have seen sl scar on defendant’s face.

This offense was alleged to have taken place in November, 1934; and the trial was not had until April, 1938, nearly four years after it is claimed the robbery took place.

In the meantime, after the defendant was arrested in .1934, he was in jail for sometime, and the witnesses had an opportunity, if they desired to do so, to visit the jail and see the defendant, and try to identify the defendant at the preliminary hearing. Neither Mr. Jones nor Mrs. Jones attempted to. identify the defendant by any scar on his face. Elmore, testifying nearly four years after the alleged robbery, mentions the fact that the defendant had a scar on his face.

The record also shows that the father of this defendant, Jake Alberty, who had served as sheriff of his county of Adair, Okla-., two' terms, and after his term of sheriff expired had moved to Tulsa, Okla., and had been living there for 15 years or more and had always borne a good reputation, testified that on the afternoon of the day of the alleged robbery that night, the defendant, Tom Alberty, his son, was in Tulsa, and came to his home where he lived with his father and mother, had his supper, and after he had his supper went up town and came in sometime in the evening after his father and mother had retired for the night about 10 or 11 o’clock. The father further testified that the next morning, when he got up preparatory to going to work, he went into the room where Tom was sleeping to light the fires, and that Tom was in bed at that time.

The defendant, testifying in his own behalf, stated positively that he was not in Henryetta at that time and had never been in Henryetta with Leo Bailey at any time, and that he had never met George Siggins until after they were placed in jail on the charge for which he was on trial.

Willie Elmore, an admitted violator of the prohibition law, if not engaged in the whisky business at the time of this alleged offense, had been before engaged in the whisky business. He shows by his statement that he drove these defendants to Ed Jones’ house, that he knew Ed Jones was either in the whisky business at that time or had been, and would know where whisky could be found.

Elmore, nearly four years after the alleged offense, attempted to identify the defendant by a scar on his face. It is not denied by the defendant that be had a scar on his face. The scar had been there since he was a young boy; however, in the meantime, from the time of the alleged robbery up until the trial, Elmore had had an opportunity to see the defendant at the preliminary and when he came to trial nearly four years after the alleged offense, and could have made up this story of identification without any chance for the defendant to contradict him.

All the state’s witnesses had an opportunity to see the defendant when he was brought to trial in the preliminary and bound over to the court having jurisdiction of the offense of which the defendant was charged; and the case dragged along for almost four years before the state brought it to trial. The testimony of the state attempts to identify, and if not contradicted would be sufficient to establish the fact that the defendant was one of the parties who took part in the robbery.

The defense of the defendant contradicts the statement of the state and attempts to establish an alibi for the defendant, showing the defendant was at another and different place the night of the robbery; and his father testified that the defendant was not in the city of Henry-etta at the time alleged, but was in the city of West Tulsa and remained there, and went to his bedroom to bed at 10 or 11 o’clock in the evening, and was there the next morning when his father went into his room to start the fires.

The father of this defendant was born and reared in what is now Adair county, state of Oklahoma; but at the time he was born it was the Cherokee Nation, Indian Territory. He had held the office of sheriff in his county, and as shown by his neighbors and friends to be a man of integrity and honor.

The defendant in this case called witnesses who also testified to his good reputation.

It is earnestly urged, and with merit, that the court committed reversible error in permitting the witness lad-dell, over his objections, to testify that he took a number of photographs that he had secured at the state penitentiary down to the Ed Jones home, and that Ed Jones and his wife picked three of them out. In other words, the defendant insists that the admission of the testimony of Liddell was not only prejudicial to his rights and deprived him of a fair and impartial trial as guaranteed to him under the laws of our state and the opinions of this court. Wingfield v. State, 55 Okla. Cr. 374, 30 P. 2d 930; Peck v. State, 52 Okla. Cr. 212, 4 P. 2d 127.

The testimony of Liddell complained of by the defendant is set out in full supra.

This court has repeatedly held that an accused, whether guilty or innocent, is entitled to a fair and impartial trial according to due and orderly course of law. Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Melton v. State, 53 Okla. Cr. 360, 12 P. 2d 251.

This court has further held that it was the duty of the trial court to see that the guaranty of a fair and impartial trial should be upheld and sustained.

The defendant insists that Liddell’s testimony with reference to the pictures was incompetent evidence and prejudicial to his rights and deprived him of a fair and impartial trial.

It is clear from the evidence that the photographs taken to the home of the prosecuting witness by the chief of police were for the purpose of establishing an extrajudicial identification of the defendant.

An examination of the evidence of the prosecuting witness Jones and his wife, when they attempted to identify the defendant, clearly shows that their identification of him at the trial was based on their conclusions reached from their examination of the photograph taken to their home by the witness Liddell.

This testimony and the attempted identification of •the defendant was extra-judicial; and, therefore, under the authority of this court was incompetent and inadmissible, and the trial court committed reversible and prejudicial error in the admission thereof. The statement of the chief of police, Liddell, was to the effect that he had procured these photographs from the penitentiary at McAlester, and there were 40 or 50 of them taken to the home of Ed Jones and shown or exhibited to Jones and his wife, and claimed that from these pictures the prosecuting witness and his wife identified the defendant and his co defendant. The testimony also shows that the names of the parties were on the pictures.

The state closed its case without introducing any testimony to show that the defendant had been in the penitentiary; and the defendant testified positively that he had never been in the penitentiary. His father corroborates him on this statement, and says that the son had never been in the penitentiary.

In Johnson v. State, 44 Okla. Cr. 118, 279 P. 933, this court said:

“In the trial of an accused for robbery, where the issue is whether the defendant is the person who robbed the prosecuting witness, testimony of wha,t prosecuting witness said in identifying or describing the robber at some other time or place is not admissible as original testimony. In like manner, the testimony of the officer that from such description he arrested the defendant is hearsay and inadmissible.”

The character of proof of the testimony of witness Liddell for the state is referred to in the books as “extrajudicial identification”, and is generally held to be inadmissible. Reddick v. State, 35 Tex. Cr. R. 463, 466, 34 S. W. 274, 60 Am. St. Rep. 56; State v. Egbert, 125 Iowa 443, 101 N. W. 191; People v. Johnson, 91 Cal. 265, 27 P. 663; People v. McNamara, 94 Cal. 509, 29 P. 953.

It is clear that the taking of the photographs from the penitentiary of many individuals to the home of the prosecuting witness Ed Jones, where they were examined and statements made that they identified three of them as being the parties that robbed the prosecuting, witness, was such testimony as would have a bearing upon the minds of the jurors. It was an attempt to show that the defendant had been in the penitentiary, and while there he was photographed, and that his photograph had been sent from the penitentiary up to the witness Liddell, who had gone to the Jones home for the purpose of having them see if they could identify either one of the photographs as being a photograph of either of the parties who were charged with robbing Ed Jones.

It cannot be contended that this character of testimony was not prejudicial to the rights of the defendant; and especially is this true when the state, after introducing the testimony of Liddell as to the photographs and as to what took place at the prosecuting witness’ home as to the photographs and the identification of the defendant, offered no evidence to show that this defendant had ever been in the penitentiary.

The truth is that he had not been in the penitentiary; and there had been no photographs of him made by any authority of the state or nation.

It was very damaging testimony to tbe defendant in view of the fact that his identity was very doubtful; and his testimony as to not being in Henryetta the night of the robbery was positive.

In Calloway v. State, 60 Okla. Cr. 293, 64 P. 2d 935, in the first syllabus, this court said:

“Where incompetent evidence is admitted over the repeated objections of accused, and it is apparent from the record that the admission of such evidence deprived accused of a fair trial, the conviction will be reversed and cause remanded.”

In Reddick v. State, 35 Tex. Cr. R. 463, 466, 34 S. W. 274, 60 Am. St. Rep. 56, the third paragraph of the syllabus is as follows:

“Evidence by the state was given that, the next morning after the rape, prosecutrix related the fact to her brother-in-law and wife. Some of the details of her complaint were admitted without objection. Held, that it was error to admit, as original evidence, testimony of the sheriff that a certain boy at the jail identified defendant, among several prisoners, as the one who committed the crime, and as to the circumstances under which the identification was made.”

The state in its brief cities Winfield v. State, 18 Okla. Cr. 257, 191 P. 609, to sustain the action of the trial court in admitting the evidence of the witness Liddell as to the photographs and the identification and the testimony tending to show the extra-judicial identification of the defendants, and quoted the third syllabus as follows:

“The admission of immaterial evidence is not ground for reversal, unless the defendant was prejudiced by its admission.”

This is not disputed by the defendant, and is good law.

It is not urged by the defendant that his case should be reversed if the record does not show that the defendant was prejudiced by the admission of the testimony of witness Liddell.

This court insists that the testimony of Liddell was inadmissible, incompetent, and deprived the defendant of the right to a fair and impartial trial.

The admitting of this incompetent evidence may well have influenced the verdict of the jury and caused the minds of the jurors to be biased and prejudiced against the defendant.

The view we take of this record, it is not deemed necessary to consider the other errors assigned.

For the error in the admission of the testimony here-inbefore stated, the case is reversed.

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