author: DAVENPOBT, P. J.

text:
    A. B. JENKINS v. STATE.
    No. A-8760.
    May 17, 1935.
    (45 Pac. [2d] 161.)
    Melrose Minton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with murder, was convicted of manslaughter in the first degree, and sentenced tO' be confined at hard labor in the reformatory at Granite for a term of five years.

The testimony on behalf of the state in substance shows that on Christmas eve in 1931, this defendant was driving on highway 66, at a point eight or nine miles west of the city of Clinton; at the time the defendant was an employee of the State Highway Department; he was driving at a high rate of speed and drove into' the rear of a parked car, while the car was being supplied with gasoline, the collision resulting in the killing of the deceased, Foye Johnson. This accident occurred shortly after dark; the deceased was in company with her sister and a Mr. B. A. Trent; when they reached the place where the accident occurred, they discovered they were out of gasoline; Trent ordered some gasoline and two attendants at the filling station, Marion Woods and Floyd Shahan, brought the gasoline to where the Trent car was; when the parties came with the gasoline, the deceased was standing behind their car watching them put the gasoline in the tank; the deceased, Foye Johnson, Marion Woods, and Floyd Sha-han were all killed from the effects of the collision.

There is no controversy that defendant was driving the car which struck the rear of the Trent car, and was the proximate cause of the death of Foye Johnson. The testimony on behalf of the state shows the defendant was under the influence of intoxicating liquor at the time of the collision, and was driving at a rapid rate of speed; that the parties examining the car found a half-gallon jar which had been broken, which jar had a small quantity of whisky in the bottom of the jar, and there was liquid of some kind dripping through the defendant’s car which had the odor of alcohol.

The evidence on behalf of the state further shows that the force of defendant’s car, when it struck the Trent car, knocked the Trent car forward 17 or more feet, although the Trent car had the emergency brake on.

The defendant denies he was drinking, and called a number of witnesses who testified they had seen him in the afternoon and evening up to the time he left Duncan, and they did not smell the odor of whisky on his breath, and did not see Mm take a drink; lie also called a number of witnesses who testified to' his previous good character and sobriety. The record is voluminous. It would serve no useful purpose to set out at length the evidence as to the defendant’s sobriety and previous good character, or to the number of witnesses who testified for the state.

Four errors have been assigned by the defendant as grounds for reversal. The only error necessary to be considered by this court is, “That said court erred in overruling the motion for a new trial of plaintiff in error.”

The other errors are embraced within this assignment. The defendant, in his brief, admits he was charged with the crime of murder, but his counsel contends that the jury rejected any theory upon which the defendant could have been convicted of murder under the evidence in this case. This contention of the defendant is not correct, and is not supported by the decisions of this court; in fact, it is contrary to such argument.

In Berry v. State, 54 Okla. Cr. 154, 18 Pac. (2d) 285, this court passed squarely upon the question urged by the defendant. In the first paragraph of the syllabus, the court said:

“Where an information charges a murder to have been committed with a premeditated design to effect the death of the person killed, such charge includes the lower degrees of homicide, and, when submitted to the jury by proper instruction, a conviction may be had under such charge for manslaughter in the second degree.”

In the second paragraph of the syllabus, the court said:

“When an accused is tried on a charge of murder and the jury find him guilty of manslaughter in the second degree, this court will not grant a new trial on the ground that defendant should have been convicted either of murder or manslaughter in the first degree or acquitted.”

The facts and circumstances in Berry v. State, supra, are very similar to the facts and circumstances in this case. The contention is made that the evidence is insufficient to sustain the verdict. This contention is not borne out by the evidence. From the state’s standpoint there is sufficient testimony to' show the defendant, while driving at an excessive speed, ran into' the rear of the Trent car and struck the deceased, the result of which caused the death of the deceased, Foye Johnson. Whether drunk or sober, the evidence is sufficient to sustain the verdict of first-degree manslaughter, and to1 show the collision was the proximate cause of the death of Miss Johnson.

The charge of murder includes the charge of manslaughter in the first and in the second degree. Section 2740, C. O. S. 1921, now section 3097, O. S. 1931; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117.

This court has repeatedly held that where a defendant is charged with murder, and the trial court submits the issue of manslaughter in either of the degrees in a case where the evidence would justify a conviction of murder, and the jury finds the accused guilty of manslaughter, the error is one of which the defendant will not be heard to complain. Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590.

No complaint is made by the defendant that the court did not correctly advise the jury as to the law applicable to the facts, nor is there any contention that the jury, in arriving at its verdict, did not do> so upon the evidence adduced before it, and the law as given by the court.

After a careful examination of the record, we conclude there are no errors which could have been prejudicial to the defendant. The judgment of the lower court is therefore affirmed.

EDWARDS and DOYLE* JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VIRGIL BROWN v. STATE.
    No. A-8823.
    May 17, 1935.
    (45 Pac. [2d] 163.)
    David Tant, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, for convenience hereinafter called the defendant, was convicted of murder, and his punishment fixed at imprisonment in the state penitentiary at McAlester at hard labor for life.

The record in this case contains T12 pages. The court, after a careful. consideration of all the facts and circumstances contained therein, does not deem it necessary to set out the testimony at length. Suffice it to say the testimony is sufficient to sustain the verdict and judgment.

It is urged by tbe defendant that the court erred in its instructions to the jury as to tbe law applicable to tbe facts and that there was error of law committed in tbe trial of the case sufficient to warrant this court in reversing tbe same. With this contention we cannot agree. A careful study and examination of tbe record fails to disclose any prejudicial or fundamental error.

Tbe defendant was accorded a fair and impartial trial. Tbe court correctly advised tbe jury as to the law applicable to the facts. This was a cold-blooded premeditated murder, and the jury would have been derelict in its duty if it had not imposed tbe penalty it did on tbe defendant.

Finding no errors in tbe record sufficient to warrant a reversal, tbe judgment of tbe trial court is affirmed.


author: DAVENPORT, P. J.

text:
    FRED WALLACE v. STATE.
    No. A-8791.
    May 17, 1935.
    (45 Pac. [2d] 164.)

      Hughes & Hughes, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen'., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with murder, was convicted, and his punishment fixed at life imprisonment in the state penitentiary, at McAlester, Okla.

The testimony of the state shows the shooting, occurred on a public street in the city of Hobart, in what is kno wn as the negro section of the city. The killing occurred on Sunday night, the 27th of July, 1930. The proof shows the defendant armed himself with a Winchester rifle, and went out on the street near what is known as a Holiness negro church, while services were being conducted. There were several persons around the defendant, and one or more of them suggested to him to give them the Winchester, or to go and put it up, and defendant said he would not put the gun up; that he had it there for his protection; that his brother had gone after his gun, and threatened to do him great bodily harm or kill him.

The deceased, who’ was a police officer in the city of Hobart, was informed of the disturbance in the negro section, and went out to investigate; he drove his car up to where the defendant was standing surrounded by the crowd, and as deceased walked up to the crowd some of the witnesses say he said, “What in the hell is going on?” and others say he said, “What is going on here?” The deceased was armed with a pistol; when defendant saw deceased coming toward the crowd, he raised his rifle and fired at deceased, the first shot going in the ground in front of him, and the second shot hitting deceased in the arm, causing a wound which severed a main blood vessel, from which wound a few hours later the deceased died.

The defendant in his testimony admits having a Winchester rifle, having gone out on the streets of the city, and stated he had it for the purpose of protecting himself against the threats of his brother; that when the deceased came up in the crowd he saw the gun in his hand, but he did not recognize the deceased as being an officer, but thought it was his brother or some one going to do him great bodily harm; and that he fired at the deceased in order to' prevent him from shooting, any one.

The defendant states positively that he did not know whom he shot until after the shooting was over. The testimony shows that the hall fired by the defendant entered the right arm or wrist of the deceased, and passed on up cutting a main artery, and passed out of his arm. The defendant after the shooting remained on the street for some time and then went into a place of business or house and got another Winchester, and came out with two Winchester rifles, and then said to a party who had driven up in his car and left the lights burning to turn off the lights. This is in substance the testimony.

Twelve errors have been assigned by the defendant alleged to be sufficient to- warrant this court in reversing his case. The first and second errors will be considered together as they have been argued by the defendant in his brief. That the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. The defendant alleges that a careful study of the entire record of the evidence in this case will show that there was no intention on the part of the defendant to inflict a mortal wound on any person at tbe time-tbe fatal shot was fired, and particularly that be did not intend to barm Al Trent-bam, tbe deceased.

Tbe defendant was violating tbe law when be appeared on tbe public streets of tbe city with a loaded Winchester; be bad no right to be there with tbe Winchester even though be was anticipating trouble; bis duty was to go to bis home and remain there so as not to come in contact with tbe party be insists bad threatened to take bis life, or do him great bodily barm. Counsel for tbe defendant, with a great deal of force, argues defendant was an expert shot, that be bad been trained for army service in the World War. This argument presented by counsel for tbe defendant is not altogether borne out by tbe record, as some of tbe testimony shows that when be fired tbe first shot it went into tbe ground, and tbe second shot was tbe fatal shot, which struck tbe deceased in tbe arm.

Tbe testimony as disclosed by tbe record shows that tbe defendant bad been drinking; that be bad armed himself with a Winchester rifle, and went out on tbe public streets of tbe city of Hobart, where a number of people were passing back and forth, and near where religious services were being held. That a number of friends tried to gét him to put bis gun away and be refused to do so, evincing a desire to further violate tbe law by shooting some one with tbe Winchester rifle that be had in bis band. Every act of tbe defendant, as shown by tbe testimony, from tbe time be appeared on tbe street in tbe city of Hobart until be fired tbe fatal shot indicated that be was not only violating the laws of tbe state by unlawfully carrying tbe Winchester rifle on tbe streets of Hobart, but that be was there for tbe purpose, if necessary, of taking the life of some one. Section 2587, O. S. 1931, is as follows:

“Persons shall be permitted to carry shotguns or rifles for the purpose of hunting, having them repaired, or for killing animals, or for the purpose of using, the same in public muster or military drills, or while traveling or removing from one place to another, and not otherwise.”

That he did not give up his gun when requested to do SO' by his friends, but remained on the street until the officer approached and asked what was going on, then defendant immediately raised his gun and fired; the first shot going into the ground, the second shot striking the deceased in the arm.

We deem it needless to further discuss the actions of the defendant or his purpose of being on the streets with a loaded Winchester. We hold that the evidence is amply sufficient to sustain the verdict of the jury.

The next question to be considered by this court is, Did the court properly instruct the jury as to the law applicable to the facts in this case?

The defendant urges that the court erred in instructions 4 and 5. That the court misdirected the jury upon the question of law. The first paragraph of the fourth instruction is a correct statement of the law as applied to the question of the guilt or innocence of the defendant of the crime of murder. In the second paragraph of the fourth instruction there is an inaccurate statement of the court, which is not borne out by the record, in which paragraph the instruction advises the jury the fact the defendant “did wrongfully and unlawfully shoot the said Al Trentham but without a design to effect his death, and that at the time of and immediately prior to the said shooting the defendant was carrying upon or about his person a pistol or revolver, and that because of tbe said shooting the said A1 Trentliam did die, then your verdict should be that the defendant is guilty of manslaughter in the first degree, unless you should find and believe, or have a reasonable doubt that the homicide was committed in self-defense, within the rules hereinafter laid down for your guidance.”

The only incorrect statement in the second paragraph of this instruction is, the court used the words pistol or revolver, when all the testimony shows the defendant was carrying a Winchester rifle.

It has been universally held by this court that the giving of an instruction on a degree of homicide of which the defendant was not convicted is not erroneous where the instruction of the court on the degree of which the defendant was convicted was correct. Musgraves v. State, 48 Okla. Cr. 418, 292 Pac. 376.

The defendant relies upon Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532, 533, wherein the court said:

“It is error in a court in a homicide case to give to the jury instructions Avhich are not relevant to the evidence and which may mislead the jury to' the prejudice of the defendant.”

Mulkey v. State, supra, is a correct interpretation of the law applicable to the facts in the Mulkey Case. However, there is nothing in the fourth or fifth instruction of the court in this case that in any way whatever tends to mislead the jury to the prejudice of the defendant.

The fact that the court used the words pistol or revolver in its instruction to the jury when the defendant appeared upon the street does not prejudice the defendant’s rights, for the reason that all of the testimony shows that the defendant was on tbe street with a Winchester rifle, and the defendant admits that he had a Winchester rifle, therefore the inaccurate statement by the court, in using the words pistol or revolver in its instructions, could in no way whatever prejudice the rights of the defendant, in view of his admission as to the kind of gun he used in shooting the deceased.

The next and only question presented by the defendant is the question attempted to- be raised as to improper remarks made by the county attorney in his argument to the jury. The defendant in his argument insists that the court erred when he permitted the county attorney to make an unfair and wholly unwarranted argument to the jury in the trial of his case wherein the defendant alleges the county attorney called the jury’s attention to the fact that the defendant was of bad character, or otherwise he would have shown his good character. Citing Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532, to sustain his contention that the argument made by the county attorney was such an error as to warrant this court in reversing this case. With this contention we do not agree.

In Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560, this court said:

“A conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might, in some degree, have influenced the verdict against the defendant.”

The statements of the county attorney are not reported by the court reporter, nor did the court make a specific ruling, upon the question raised by the defendant. The question of the misconduct of the county attorney is raised by an objection of the defendant.

The remarks of the county attorney, objected to as improper, will be considered by this court and construed in reference to the evidence, and in order to constitute reversible error the improper remarks indulged in must be such as might have influenced the jury. Carr et al. v. State, 43 Okla. Cr. 271, 277 Pac. 1038.

In this case there is not a word of evidence that tends to mitigate the crime charged against the defendant. The officer was called to the scene of the trouble for the purpose of quelling the disturbance, which disturbance was caused and brought on by the defendant. The defendant, intoxicated at the time, was carrying a loaded Winchester rifle on the streets of the city and making open threats to kill or to do bodily harm to some one. When the deceased appeared on the scene, the defendant shot him in utter disregard of human life or the rights of the people upon the streets of the city.

The evidence is sufficient to sustain the verdict and judgment. There are no errors in the record warranting a reversal. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: EDWARDS, J.

text:
    OLLIE MELTON v. STATE.
    No. A-8752.
    April 19, 1935.
    Rehearing Denied May 17, 1935.
    (47 Pac. [2d] 195.)

      John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court, Pottawatomie county, of manslaughter in the first degree and his punishment fixed at twenty years in the state penitentiary.

On the date charged defendant shot one Yirgil Coffey, inflicting a wound from which he died two days later. On the day after the shooting defendant surrendered to the sheriff. Following the death of Coffey, charges of murder were filed, a preliminary held, and final trial, with the result stated. Defendant admitted firing the fatal shot and pleaded self-defense.

Defendant first contends the evidence is insufficient to support the judgment. The testimony is substantially that on the date charged one Shorty Alexander and Dan Conn were at Alexander’s place making whisky; defendant and deceased came and after a few minutes another person came for some whisky; that defendant said he owed him some money and he was going to collect it and was persuaded by Conn not to mention the matter. An argument ensued between defendant and deceased with reference to the debt, in which deceased made some insulting-remarks to defendant. In a very short time thereafter the shooting occurred. Two witnesses were in the immediate vicinity, but no one seems to have seen the actual shooting. A former convict, who had served at the same time as defendant on a former conviction, testified that while in the penitentiary defendant made threats against deceased. Mrs. Beulah Short, a bootlegger, testified that defendant visited her place twice during the evening and night following the shooting, that he had two> pistols and a shotgun and, among other things, he stated: “He did it too because he figured Virgil Coffey turned him in over a deal,” and “if they prosecute me for this or Mrs. Coffey swears against me or any of the witnesses swear against me and don’t stick me I will get the witnesses and if they do stick me somebody else will get them,” and, “That I told Virgil I shot him and for him not to tell in court I shot him, and if he lived and testified against me I would finish the job.” Another witness who saw deceased after the shooting testified that defendant drew a gun on him; that he had two guns at the time and said he “shot one guy and he was looking for some more of those guys around there.” The jailor testified defendant was out on bond and surrendered to the officers to release his bond and when checked in jail had a revolver stuck ta his chest with adhesive tape. The dying declaration is in effect that deceased did not have a gun and did not know why defendant shot him.

The rule is well settled that a verdict of a jury will not be disturbed where there is any substantial evidence to support it. Parks v. State, 18 Okla. Cr. 277, 194 Pac. 281; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 508. This evidence amply supports the verdict.

Complaint is next made that the court permitted the county attorney to cross-examine his own witnesses. It is evident that two of the state’s witnesses did not testify as strongly as the county attorney had been led to believe they would and he asked some questions in the nature of cross-examination, but when objected to the objections were sustained and the jury instructed not to consider them. The memory of another witness was permitted to be refreshed to some extent. Where a witness is hostile, suffers a lapse of memory, is evasive, or deceives the party calling him as to what his testimony will be, the court in his discretion may permit a degree of cross-examination. No prejudice to defendant resulted, nor were the questions in the nature of impeachment. Morris v. State, 35 Okla. Cr. 5, 247 Pac. 418, and cases cited.

Defendant next argues error in the introduction of the written dying declaration. The contention is, it was not made under a belief of impending death and that it is not in the exact words of deceased. The court had a preliminary hearing in the absence of the jury touching its admissibility. On the night following the shooting deceased underwent an operation, a deputy sheriff, Brock, the following morning saw deceased in the hospital, he told Brock he was going to die. Brock asked him if he felt like making a statement; deceased said he wanted to talk to the county attorney. The county attorney came. Deceased said, “Ollie Melton has got me.” Some one asked him if he was going to* get well, he answered, “No.” A statement was made, reduced to writing by the assistant county attorney, read back to deceased, who signed it. Brock, Wyatt, and Sillyman testified the statement therein was in substantially the language used by deceased. The preliminary wording was stricken by the court before the declaration was admitted. This court in Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267, held in syllabus 1:

“Whether or not a purported dying declaration was made by a deceased under the sense of impending death is, first, solely a question for the trial court, in so far as it determines the admissibility of the declaration. In order to be admissible in evidence, it must sufficiently appear by evidence adduced on the preliminary hearing, had in the absence of the jury, that such declaration was made at a time that the deceased was under a sense of impending death, and that the declaration is restricted to facts concerning the facts and circumstances attending the homicide being tried, and, such facts being established, such declaration should be admitted in evidence, notwithstanding that subsequent to* making such declaration the deceased expressed the belief that he would get well. It is not necessary that the deceased declare that he is going to* die. It is sufficient if the circumstances, including his physical condition, and that he was too* weak to sign his name to the declaration and so affixed his mark thereto, and that he four days after making such declaration died from the infliction of the wound to which said declaration relates, show that at the time of making such declaration he believed he was going to die, and renders said purported dying declaration admissible in evidence.”

In Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895, 899, Ann. Cas. 1918 E, 663, it is held:

“It is enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proven by the express language of the declarant or be inferred from his evident danger.”

See Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030; Dick v. State, 21 Okla. Cr. 146, 205 Pac. 516.

If a dying declaration has been read to and approved by deceased, it need not be in his exact words. In Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107, this court held:

“Where a dying declaration has been reduced to writing, and has been read over to and approved and signed by the deceased, the fact that it may not be in the exact language used by the deceased will not render it inadmissible; provided, the language used is substantially the same as that used by the deceased. * * *
“Although a statement reduced to writing is not in the exact language used by the deceased, yet, if it clearly appears from all of the testimony in the case that the statement was made under circumstances rendering it admissible as a dying declaration and it was read over to and approved and signed by the deceased, it will be admissible in evidence.”

See further State v. Kindle, 47 Ohio St. 358, 24 N. E. 485.

Counsel raises other questions which are not of sufficient importance to require discussion, but they have all been carefully considered by the court. We find no substantial error.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    PAUL EVINGER v. STATE.
    No. A-8807.
    May 23, 1935.
    (45 Pac. [2d] 552.)

      Bruce Potter, John W. Tillman, and Fred A. Tillman, for appellant.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). This appeal is from a conviction of murder and sentence of imprisonment for life at hard labor. We shall first consider the contention, “that the verdict of the jury is contrary to both the law and the evidence.”

To summarize the testimony, it shows without dispute that Max Kriewitz was assassinated at his place of business, located on the highway about sixteen miles northwest of Fairfax, in Osage county, where the road turns north toward Burbank and Ponca City; that on May 6, 1933, about 9 o’clock p. m., a car without lights, headed west, stopped a.t the southeast corner of the filling station and country store operated by the deceased; the filling station had been closed for the night, and the deceased, with his wife, were sitting in the store. The occupants of the car made no- alarm, and after waiting three or four minutes, the deceased went in the bedroom and got his pistol, then Avent to the door, unlocked it, and walked out.

His widow testified she heard him say, “Was there something for you?” or “What can I do for you?” That there was no answer; then she heard some one say with an oath, “I will kill you”; then a shot was fired, and she heard her husband scream, and heard him fall. A few minutes later, the car was driven west; that she found her husband lying on his face, and he died a feAv minutes later; that his pistol was lying by his side; that it was a moonlight night.

The witness Bunny testified that he was awakened by hearing a shot fired, and, as he raised up, saw Red Carson with a sawed-off shotgun in his hands, getting in the car on the right side, and the defendant Evinger, getting in, the car on the left side.

The witness Holt testified he was aroused by hearing a shot fired, and saw Carson on the right side of the car with a shotgun in his hands and Evinger on the left side with a pistol in his hand.

That Max Kriewitz was murdered at the time and place alleged and in the manner charged, was not disputed on the trial, and the only issue of fact was whether the defendant Paul Evinger was present, assisting, aiding, and abetting the commission of the crime of attempted robbery with firearms, when the fatal shot was fired by Red Carson.

The fact that this defendant and Carson were on the outside of the car with guns in their hands, and their conversation as they drove away, clearly shows the intention was to rob the deceased, and that they were acting together.

While it would have been more satisfactory if the guilt of the defendant had been altogether established by the testimony of reputable witnesses, free from any imputation of interest, yet such evidence cannot often be procured as to crimes committed by fugitives from justice and ex-convicts, frequently the haunts of vice and dissipation, and in such cases, the truth must be sought by the aid of such means as the situation affords. Upon the record before us, the weight of the evidence and its convincing effect was for the jury, and not for the court. It follows from what has been said that the court did not err in overruling the motions for a directed verdict.

The errors assigned and argued will be considered in the order presented in the trial court. It is contended that the defendant was denied rights guaranteed by the Constitution, in that he did not have, or waive, a preliminary examination; therefore, the court erred in overruling his motion to remand the case for preliminary examination.

The record in this case shows that on August 29, 1933, an amended complaint was duly filed before L. L. McKenzie, J. P., as a committing magistrate, charging that on the 6th day of May, 1933, in Osage county, Red Carson and Paul Evinger did kill and murder Max KrieAvitz; that on June 8th, appellant, Evinger, was brought before said justice of the peace, and upon arraignment the complaint was read to him. He then waived further time to plead, and entered a plea of not guilty, and waived his right to a preliminary examination. He was then held to' answer to the district court of Osage county for murder; a transcript of the proceedings was duly filed with the clerk of the district court.

January 15, 1934, the county attorney filed an information in the district court of said county, and a copy of said information was served on appellant. On March 1st, a list.of the witnesses and their post-office address was served on appellant; thereafter, on March 8th, a motion to remand the case to the committing magistrate was filed, alleging that he was not guilty of the crime charged in the information, and that he did not understand he was entitled to a preliminary examination at the time he waived the same.

A bearing was bad on tbe motion to remand, at tbe conclusion of wbicb tbe motion was denied. Thereupon counsel for appellant asked leave of tbe court to withdraw tbe plea of not guilty, and that be be permitted to file a demurrer to' tbe information. Leave to withdraw the plea was granted. A general demurrer was filed, and overruled. Thereupon tbe defendant entered a plea of not guilty.

The county attorney then asked leave to indorse tbe names of Eddie Holt and Fay Bunny on tbe information as witnesses.

It appearing from tbe record that tbe names of Eddie Holt, post-office address McAlester, Okla., and Fay Bunny, post-office address Tonkawa and Granite Reformatory, Okla., were included in tbe list of witnesses served on tbe defendant March 1, 1934, as shown by tbe return of tbe sheriff of Osage county, filed with the clerk of tbe district court of Osage county on March 2d. Leave to' make tbe indorsement was granted. Exception reserved. Thereupon the defendant announced ready, and tbe case was called for trial; a jury impaneled and duly sworn to try tbe case.

It is well settled that objections to an indictment or information based upon tbe absence of any essential preliminary proceeding should be made by proper motion or plea, and objections to the sufficiency of tbe same should be taken by demurrer thereto, as provided by section 2936, St. 1931, Procedure Criminal. Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116.

Tbe constitutional provision guaranteeing the accused tbe benefit of a preliminary examination is as follows: “No person shall be prosecuted for a felony by information without having bad a preliminary examination before an examining magistrate, or having waived such preliminary examination.” Bill of Rights, § 17.

The precedent fact that a preliminary examination had been had or waived constitutes the jurisdictional basis for the prosecution for a felony by information.

Where the defendant waives the right ü> a preliminary examination, he also waives the right to question any irregularities that may have occurred in the proceedings, and where the magistrate holds the defendant to- answer, and such magistrate files a transcript of the proceedings in the district court, such court has jurisdiction until a motion to set aside or quash the information is sustained. Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332.

In the recent case of Ex parte Robinson, 56 Okla. Cr. 404, 41 Pac. (2d) 127, 129, it is said:

“This constitutional provision is for the benefit of an accused. It is in the nature of a personal privilege under which he may insist upon a preliminary examination before he can be put upon his trial or called upon to answer an information, but by its express terms he may waive this right.” Canard v. State, 2 Okla Cr. 505, 103 Pac. 737, 881, 139 Am. St. Rep. 949; Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Ralston v. State, 16 Okla. Cr. 634, 185 Pac. 831; Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423; Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649.

It follows that the motion to remand for a preliminary examination was properly overruled.

As to the sufficiency of the information, counsel in their brief say:

“The reading of it will disclose that it charges that the two defendants named, ‘Paul Evinger and Red Carson, then and there being, did then and there wrongfully, unlawfully and feloniously, without authority of law, and with a premeditated design, to effect the death of Max Kriewitz, shoot, kill and murder the said Max Kriewitz with a dangerous and deadly weapon, to wit, a sawed-off 12-gauge shotgun,’ the rest of the information being formal.”

And it is argued that the same “is fatally defective in that it charges that two* persons committed a murder, and that it nowhere charges that they acted conjointly, or together in the commission of the offense, nor does it charge that said offense was committed while engaged in the perpetration of another or any felony.”

In the case of Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452, it is held:

“An indictment or information which alleges that a number of different persons who were concerned in the commission of an unlawful homicide held the pistol in their hands and fired the fatal shot is sufficient without stating which one of said defendants held the pistol and fired the fatal shot.”

In the case of Carle v. State, 34 Okla. Cr. 24, 244 Pac. 833, it is held:

“Where an information charges murder under the first subdivision of [sec. 2216, Sts. 1931], in perpetrating a homicide without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said statute.”

And see Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

Where an information charges that the injuries to the deceased were inflicted by the defendant with the premeditated design to effect death, and alleges the means with which the homicide was committed, it is sufficient. Bookman v. State, 12 Okla. Cr. 49, 151 Pac. 1074.

It follows the demurrer was properly overruled.

It is also contended the court erred in permitting the indorsement upon the information of the names of the two witnesses, Eddie Holt and Fay Bunny.

A sufficient answer is found in the case of Tallon v. State, 22 Okla. Cr. 89, 210 Pac. 309, holding that:

“The failure to indorse on the information prior to' the commencement of the trial the name of a witness to be used in chief against defendant in a capital case is immaterial, provided the name of such witness, with his post-office address, appeared in the list of witnesses to be called in chief by the state, served on defendant in compliance with section 20, article 2, of the Constitution.”

And see Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475, and Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350.

It is also' argued that there was no proof of venue in that, “At no place in the record, in all its 480 pages, does any witness testify that the location of the killing was in Osage county.”

This contention is not tenable. The venue in a criminal case may be established by circumstantial evidence. Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427.

Courts will take judicial notice of the boundaries of counties and location of towns. This court judicially kno ws that the western and southern boundary of Osage county is the Arkansas river. It is undisputed that the scene of the homicide was a filling, station east of the Arkansas river, south of Burbank, and about 16 miles northwest of Fairfax.

In McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026, it is said:

“It is tbe better practice for the state to prove venue by direct evidence, yet if venue is proven by circumstances or by indirect evidence, or if there be proof of facts from which the court takes judicial knowledge of venue, it will be sufficient.”

And see Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232.

Another assignment of error is:

“Misconduct of the county attorney in his closing remarks to the jury, when he said: ‘Send this hijacker to the electric chair and to his grave, where his partner in crime, Red Carson, has already been sent by the Kansas officers’.”

No objection was made or exception saved to this remark, and, if made, it is not shown in the case-made, except as one of the grounds in the motion for a new trial; and for this reason cannot be reviewed. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825.

By numerous decisions of this court, the rule is well settled that misconduct of the county attorney in his argument to' the jury can only be shown by being properly incorporated in the case-made, or by bill of exceptions duly allowed, and, when not so preserved in the record, cannot be shown by affidavit or mere recitals in the motion for new trial. Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441.

Some exceptions were taken by the defendant during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken.

The court refused to instruct the jury on the law of accomplice testimony, and its ruling in this respect is assigned as error.

When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury, as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916 F, 1251.

We think upon the evidence in this case it was a question of law for the court, and not one of fact for the jury. There is no evidence in the record tending to show that the witnesses Holt and Bunny were accomplices. In so far as the record shows, the defendant Evinger was the only person participating with or aiding and abetting Red Carson in the attempted robbery with firearms.

In the case of Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822, 824, it is said:

“To constitute one a party to a crime under this statute [sec. 1808, Sts. 31], it is necessary that such person be concerned in the commission of the offense — that is, that he either commit it or aid or abet its commission— and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to- the perpetrator of the offense, in no manner aid or abet hm in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission.”

In Carrice v. State, 16 Okla. Cr. 118, 180 P. 870, it is said:

“To constitute one a party to a crime, it is necessary that such person be concerned in its commission. He must either commit it, or aid and abet in its commission, and it is not sufficient that be merely acquiesces therein with knowledge that another is committing the offense.”

In the case of Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, 206, it is said:

“It may be stated as a general proposition that no' one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to' every sense of justice and humanity. When the accused is present and aiding and abetting another in its. commission he may be considered as expressly assenting thereto, so, where he has entered into- a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to> have assented to the aiding of whatever should reasonably or probably be necessary to> accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to' the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no. criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction or connect him criminally with the killing.”

The instructions given by the court fairly and fully cover the law of the case, including, the defense of an alibi, and where, as in this case, the facts are not disputed, and there is no evidence to show that any witness for the state was an accomplice, there was no error in refusing to give an instruction upon the necessity of corroborating an accomplice.

Having considered the errors assigned, and giving due weight to every consideration urged by counsel for the defendant, we are satisfied that no exception taken upon the trial is of any force.

Our conclusion is that the defendant had a fair trial and was properly convicted.

The judgment appealed from is therefoi*e affirmed.

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


text:
    Ex parte ODELL ROBERTS.
    No. A-8888.
    May 24, 1935.
    (45 Pac. [2d] 1112.)
    Albert S. Grilles, Sr., for petitioner.
   PER CURIAM.

This is an original petition filed by the petitioner, Odell Roberts, in which he alleges he is unlawfully imprisoned and restrained of his liberty by respondent, Stanley Rogers, sheriff of Oklahoma county; that the said cause of restraint, to the best of his knowledge, is that on the morning of March 3, 1935, at 1:30, while talking to' Mrs. Foster, at the Kit Kat Klub, on the Edmond Highway between Oklahoma City and Edmond, he was approached by Jack C. Wheeler; the said Wheeler being a justice of the peace of Oklahoma township, with offices at; tbe intersection of West Main and Pennsylvania streets, a distance of about eight miles» from the Kit Kat Klub.

Petitioner further states he was informed by said justice of the peace that he was arrested for being drunk; that the said justice of the peace took him to the county jail in Oklahoma City and caused him to be placed in jail. Petitioner denies he was under the influence of liquor at any time on said date; that March 3, 1935, was Sunday; that Justice Wheeler had no warrant for his arrest, and no one connected with the said Klub had made any complaint to the justice of the peace; that he was not arraigned by the said justice of the peace on March 3, 1935; that he was given no» chance to make bond; was not informed that he had the right to have the advice of counsel; that he was held in jail until about 2 o’clock p. m.,' March 4, 1935, without being given a chance to make bond.

Petitioner further states that when the said Jack Wheeler, justice of the peace, arrested him in Britton toAvnship, he was within a half mile of the town of Britton; instead of taking petitioner to' the nearest justice of the peace, which was in Britton, the said Wheeler, the arresting officer, took petitioner out of Britton township into Oklahoma township and placed him in jail, where he was held for 37 hours without being arraigned, then caused your petitioner to be arraigned before himself the said Jack C. Wheeler, the arresting officer; that about 2 p. m., of March 4, 1935, petitioner alleges he was taken from the jail and arraigned before the said Jack Wheeler; that at the time he was not informed by the said Wheeler that he had 24 hours to plead; that he was entitled to' counsel; and that counsel would be furnished by the court if petitioner was unable to hire same.

Petitioner further alleges that Justice of the Peace Wheeler demanded of him to know whether he was guilty or not guilty. Whereupon he stated to' said justice of the peace, “You are the one that arrested me,” or words to that effect. The justice of the peace then said, “Guilty of disturbing the peace,” and pronounced the sentence upon him.

Petitioner further alleges that by reason of the action of the said justice of the peace, Jack C. Wheeler, he was denied the right to a trial before an unprejudiced tribunal; that he was unlawfully arrested on the Sabbath, and was imprisoned without being arraigned and given a chance to make bond; that he was never informed of his right to counsel; that he was denied the right of a trial •by jury, and was sentenced without having entered a plea; that he was young and inexperienced and did not know what his rights were in the premises, and asks that a writ of habeas corpus issue and he be released from custody.

The petition is duly verified. On response to the writ served on respondent, he presented the petitioner in open court. Pending the consideration of the case, this court ordered the petitioner released on his own recognizance. No denial of the allegations has been filed; therefore, this court will treat them as admitted.

We have carefully examined the allegations of the petition wherein it is charged that Jack 0. Wheeler arrested the petitioner in Britton township and took him to Oklahoma township, where the said Jack C. Wheeler was a justice of the peace, and there sat as trial justice and imposed a sentence upon the petitioner. We hold that an officer cannot act as the arresting officer and trial justice, and that his actions in attempting to' discharge the duties of both the arresting officer and trial justice are unlawful, and deprived the petitioner of due process of law.

The writ is therefore granted, and petitioner ordered discharged.


text:
    Ex parte FRANK C. COOPER.
    No. A-8912.
    May 24, 1935.
    (45 Pac. [2d] 548.)
    Robert J. Bell and Wallace Wilkinson, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., and W. J. Counts, Co. Atty. (McSherry & Monk, of counsel), for respondent.
   DOYLE, J.

The petitioner, Prank C. Cooper, filed in this court May 18, 1935, a petition wherein he alleges that he is unlawfully restrained of his liberty, and imprisoned in the county jail of Pittsburg county, by H. H. Sherrill, sheriff of said county, and that his unlawful confinement and detention consists in this, to wit: That, by information filed in the district court of said county, he is charged with the murder of Edna Anne Cooper, alleged to have been committed in said county on or about the 28th day of April, 1985; that on his preliminary examination on May 9th he was held without bail to- the district court of Pittsburg county; that later an application for bail was made to the district judge of said county, which application was denied.

And he further alleges that he is not guilty of the crime of murder as charged in the information; that upon the evidence-introduced at said preliminary examination, together with the testimony of the petitioner as a witness in his own behalf, and the testimony of other witnesses, which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great.

The constitutional right to bail is granted by section 8 of our Bill of Eights, which reads as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Const, art. 2.
“The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great. It will be observed that this constitutional provision is silent as to the status of the prosecution. Had the framers of the Constitution intended to provide that the return of an indictment or the filing of an information in the trial court should be conclusive in capital cases, they would, in all probability, have said so-.
“It follows that a person charged with a capital offense may be admitted to- bail after the information has been filed and prior to the trial if the proof of guilt is not evident nor the presumption thereof great. The courts should, ho-wever, proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to bail, is prima facie evidence that the proof of guilt is evident and the presumption thereof great, and the burden of proof is upon the defendant to establish the contrary.” Ex parte Lacy, 20 Okla. Cr. 440, 203 Pac. 1050, 1051; Ex parte Andrews, 39 Okla. Cr. 359, 265 Pac. 144.

The evidence on the part of the state tends to show that petitioner was guilty of murder, as charged, in that he did shoot and kill Edna Anne Cooper, on or about the 28th day of April 1935. The evidence shows that petitioner, 54' years old, and a railway mail clerk, worked out of McAlester, with 31 years’ continuous service; that about July 15, 1933, he married Edna Powell, at Eufaula, he at that time having a family of grown children by a former marriage.

The testimony of petitioner tends to show that they took a wedding trip to- California, in company with his daughter, her husband, and their child; that his wife would become angry over trivial matters, fly into a rage and call him vilei names, and at Salt Lake City, assaulted him, and threatened to kill him; and left him and went to live with her daughter; that they became reunited, and moved to the house where they were living at the time of her death. Following one of these altercations, he filed suit for divorce; she filed a -cross-petition for divorce; that at one time she assaulted him with an ice pick. On tbe evening of ber death, he arrived home about 9 o’clock; that she became angry and called him vile names, and he told her if she was going to carry on that way and arouse every one in the neighborhood, he would leave; then she threatened to kill him, and went into the front room and picked up his pistol; that he grabbed her wrists, and in the struggle the gun was discharged, and she fell on the floor, and‘he left to call a doctor and his son-in-law; that they came back to' the house; he went in, and an officer stepped up and said, “What do you mean by shooting that woman?” And he answered, saying: “I never shot that woman; that is my wife.”

The testimony tends to show that, the homicide was a culmination of previous difficulties, and so it may have been perpetrated by petitioner in his own necessary self-defense.

Since the weight and effect of all the evidence will be submitted to a jury, and should be so submitted without an intimation from this court, or the trial court, as to it probative force, we refrain from expressing our views, so far as it relates to the weight and credibility of the evidence.

Since the issue of self-defense, and the issue of man- . slaughter in the first degree, also, is presented by the testimony, it follows that petitioner, as a matter of right, is entitled to be admitted to bail pending further proceedings in the trial court, and it is the conclusion of the court that bail should be allowed in the sum of |10,000 for the appearance of petitioner to answer said charge in the district court of Pittsburg county, bond to* be conditioned as by law required, and to be approved by the court clerk of said county. And upon the approval, he shall notify the respondent sheriff, who shall thereupon discharge the petitioner from custody.

DAVENPORT, P. J., and EDWARDS, J., concurring.


text:
    LEWIS SWARTZFEGER v. STATE.
    No. A-8825.
    May 24, 1935.
    (45 Pac. [2d] 550.)
    Jno'. V. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience; referred to' as the defendant, was by an amended information jointly charged, with Howard Belk and Joe Shear, with riot and entered his plea of guilty and was sentenced to be imprisoned in the county jail for 30 days and pay a fine of $50 and costs.

The amended information upon which the defendant was sentenced, omitting the caption, the signature of the county attorney, and jurat, is as follows:

“I, the undersigned, county attorney, of Garfield county, Oklahoma, in the name, by authority, and on behalf of the state of Oklahoma, give information that on or about the 28th day of June, 1934, in said county of Garfield and state of Oklahoma, one Lewis Schwartzfeger, Howard Belk, and Joe Shear, did then and there unlawfully, willfully and wrongfully assemble with the common intent to use force and violence against the person of another, to wit: One O. S. McFarland, and then and there in furtherance of such unlawful intent, and acting together unlawfully, willfully and riotously, use force andj violence against, bruise, wound and injure the said 0. S. McFarland, with the unlawful and wrongful intent to do great bodily harm and injury to him, the said 0. S. McFarland.
“Contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

The defendant entered his plea of guilty, and was sentenced on the 29th day of June, 1934. On the following day the defendant appeared in open court, and filed his application to withdraw his plea of guilty and plead not guilty. Omitting the caption and signature, the motion to withdraw his plea of guilty is as follows:

“Comes now the defendant above named and moves the court to allow him to withdraw his plea of guilty entered in this court on the 29th day of June, 1934, for the following reasons to wit: That said plea of guilty was entered by this defendant without the aid or advice of counsel and under the belief that he was pleading guilty to fighting or a simple assault and battery. That this defendant is not in truth and in fact guilty of riot or any other similar offense.”

The application of the defendant was, on the 30th day of June, 1934, overruled and defendant duly excepted, and the case is here on appeal.

Two errors have been assigned by the defendant:

“I. That the county court of Garfield county had no jurisdiction of the offense charged in the information filed herein and had no* jurisdiction to pronounce the judgment and sentence against the plaintiff in error.
“II. That thé court erred in refusing to allow this plaintiff in error to withdraw his plea of guilty and plead not guilty to' said information, to which the defendant at the time duly excepted.”

.Section 2006, C. O. S. 1921, now section 2534, O. S. 1931, defines “riot.” Said section reads as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

It will be observed that such section does not fix the punishment for riot, but the punishment is fixed by section 2535, O: S. 1931, which in four separate instances, as named, provides a punishment in the state penitentiary for said offense; the fifth subdivision provides a punishment as for a misdemeanor. This statute therefore is not materially different from other statutes defining crimes and providing punishments, both in the penitentiary or for a lesser punishment. It is only the wording of this statute that is different.

Under section 1766, O. S. 1931, a “felony” is defined as a crime, which is or may be punishable by death or imprisonment in the state penitentiary. Section 1767, Id., provides that every other crime is a misdemeanor. Riot is a crime which may be punishable by imprisonment in tbe state penitentiary. That classifies it, according to our code, as a felony. Where riot is charged, irrespective of the allegations in the 'complaint or information, the examining magistrate has no jurisdiction other than to hold a preliminary examination and certify the case, if the facts warrant, to the proper court for trial. In that court it may then be determined under which subdivision of section 2535, supra, the punishment shall be inflicted.

Section 12, art. 7, of the Constitution of Oklahoma, among other things, in defining the jurisdiction of the county court, states:

“It shall have such' appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution. The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction.”

It will thus be seen that the county court is without jurisdiction to try and sentence a person charged with a felony. The information in this ease charges the defendants with a common intent to use force and violence against the person of C. S. McFarland, and with the unlawful, riotous, and wrongful intent to do him great bodily harm. This information sufficiently charges the offense of riot. Under our statute, riot being a felony, the county court of Garfield county was without jurisdiction to try or sentence the defendant on a charge of riot. The motion of the defendant to withdraw his plea of guilty and set aside the judgment and sentence should have been sustained.

For the reasons stated herein, the case is reversed, with directions to the county court to dismiss the same.

EDWARDS and DOYLE, JJ., concur.


text:
    E. M. BUTLER v. STATE.
    No. A-8695.
    May 31, 1935.
    (43 Pac. [2d] 106.)
    David Tant, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was convicted of selling securities without a permit, and was sentenced to pay a fine of $2,500 and costs.

Transcript of the record in this case was filed in this court on the 9th day of March, 1934, and a supplemental transcript was filed on January 30th, 1935. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial error. The evidence is sufficient to' support the verdict of the jury. The case is therefore affirmed.


text:
    CARL HAWKINS v. STATE.
    No. A-8795.
    May 31, 1935.
    (45 Pac. [2d] 768.)

      Leon C. Phillips and W. A. Ratterree, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court, Okfuskee county, of robbery with firearms, and was sentenced to a term of 5 years in the state penitentiary.

Defendant, a negro, was jointly charged with one Williams and Jenkins, also' of his race, with the robbery of one Barkley. The two other defendants pleaded guilty. The evidence for the state, in substance, is that at the time charged the three accused were returning to their homes near Boley from the western part of the state, where they had been picking cotton. They got on a Fort Smith & Western freight train at Warwick in the nighttime, on which train were Barkley and a number of other persons, all beating’ their way; that the three were armed and were acting together Before reaching Boley, where they left the train, they robbed a number of those on it.

The defendant contends the evidence is not sufficient to sustain the judgment. It is not disputed that Barkley was robbed, as charged, but defendant insists he did not participate in the robbery, that it was committed by Williams and Jenkins. The actual robbery of Barkley was by Williams and Jenkins. Just prior to the robbery of Barkley the three were together on the next car of the freight train and one Ponder, a negro ex-soldier, was also on this car. Defendant seated himself by Ponder and watched him while Williams and Jenkins went to- the car where Barkley was and committed .the robbery charged. In a few minutes they returned to the car where defendant and Ponder were and defendant menaced Ponder with a revolver;, and either Williams or Jenkins went through Ponder’s pockets, taking $2.35 and his army discharge papers. Then defendant said to his companions: “We ought to kill him or put him off; he is going to cause us trouble.” As the train entered the town of Boley, either Jenkins or Williams called to defendant “Let’s go,” and they all left the train together. ' There is evidence that, when defendant was arrested the day following, he was in the possession of a pistol as described by the witness Ponder, and he offered to repay Ponder the $2.35 taken from him. Also there is evidence of statements made by him to the officers indicating his participation with Williams and Jenkins. Defendant did not take the stand, but offered an agreed statement of facts of the testimony of Williams and Jenkins, in which they said, in substance, they alone committed the robbery charged. Certainly one person is not liable for the criminal acts of another in which he did not participate, either directly or indirectly, but, on the other hand, any person concerned in the commission of a crime, whether he directly commits the act constituting thei offense, or aids and abets in its commission, though not present, is a principal. The aiding or abetting, that is, the acting together, may be proven by circumstantial evidence, such as the acts and conduct of the parties. The evidence amply sustains the state’s theory that defendant, Williams and Jenkins, were acting together in robbing those on the freight train.

Defendant also complains that the witness Ponder had been sentenced to serve a term of two years in the state penitentiary for larceny of domestic animals, which fact was not known to' him, and which, if known, would have discredited bis testimony, and that the county attorney was at fault in not making such fact known. No authorities in support of bis contention were cited. It is held, generally, that a new trial will not be granted for the purpose of discrediting the testimony of witnesses. Some argument is also made that the trial court erred in one instance in bis remark in the presence of the jury, but no exception was saved at the time, and the remark has no particular importance. No prejudicial error is apparent.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    W. RILEY MILLER v. STATE.
    No. A-8813.
    May 31, 1935.
    (45 Pac. [2d] 769.)
    Joe S. Eaton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted of conjoint robbery in the district court, Okmulgee county, and was sentenced to a term of 5 years in the state penitentiary.

On the night of April 8, 1933, one Jim Howell, night watchman at Morris, was struck, rendered unconscious, then robbed of his revolver and keys, and locked in the city jail by one Anderson and two companions, whose names are unknown. Defendant is jointly charged with the three others referred to. The evidence tending, to connect defendant with the crime is entirely circumstantial, and is in effect that defendant had lived at the town of Morris about two- years, that he was 22 years old, married, and living with his wife. In September, prior to the date of the robbery, he worked at Neosho, Mo., and there became acquainted with Anderson. On the day preceding, the robbery at night, Anderson and two' companions, in an automobile, came to defendant’s residence, had lunch, shaved and visited there some little time, and they with defendant then drove about together part of the afternoon, returning to- the residence late in the day. Anderson and the other two then left, and defendant went to- church services with his wife, returning about 11 o’clock. He had prepared to retire when Anderson and his companions came and asked if he was ready to go- with them. Defendant put on his clothes and left with them. They drove a few blocks and Anderson and his two- companions left the car, taking the keys with them, defendant remaining in it. Soon the town marshal and one Ludwig came to the car and talked with defendant, who told them he had arranged to- go to Bristow with the boys, that the car had gone dead, and they had gone up town to- a garage for some parts. He helped the officer take the car number. About this time two- of the other boys approached the car, and, upon being accosted by the marshal, fled, and he shot at them. He then permitted defendant to go- home and be retired. Later be found Howell in tbe jail as stated; be then went to defendant’s bouse and took him to tbe city jail. None of tbe others accused have been apprehended. Defendant took tbe stand and testified fully and in substance that be knew Anderson and not the other two, that be bad arranged to go to Bristow with these parties with reference toi a job for which be bad applied. That be bad no knowledge of any contemplated robbery, and did not participate therein. His testimony appears to be frank and candid. He introduced evidence of previous good character, except that at tbe age of 13 he bad either been convicted or pleaded guilty in Arkansas under the juvenile law and bad been paroled.

Tbe only contention made is that tbe evidence is insufficient to sustain the judgment. Cases resting entirely on circumstances sometimes are so near tbe border line that it is extremely difficult to' say whether tbe circumstances proven are sufficient to establish guilt, so the rule has been many times stated that where a conviction rests on circumstantial evidence and circumstances are proven from which the reasonable and logical inferences of guilt clearly arise, and which exclude any reasonable hypothesis except the guilt of accused, although the evidence is conflicting, the verdict will not be disturbed by the appellate court. Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436. But where the circumstances are few and the case is close, and where there is proof of good character and a positive denial by defendant, the court will scrutinize the evidence and if upon the whole record it appears the circumstances proven do not fully satisfy the requirements of the rule stated, the conviction should not be permitted to stand. In the instant case, there is a strong-suspicion that defendant was in collusion with his companions in tbe robbery; but on the other hand there are circumstances that canse a well-founded doubt to arise, as, for instance, the fact that the keys of the car were taken away by Anderson and his companions and that defendant readily gave the officer such information as he had concerning those with him, and assisted them in taking the car numbers. Upon the whole record, we are constrained to' hold the evidence does not satisfy the requirements of the law.

The judgment is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    G. C. SCHMITT v. STATE.
    No. A-8750.
    May 3, 1935.
    Rehearing Denied May 31, 1935.
    (47 Pac. [2d] 199.)

      Ed L. Jones and John L. Ward, for appellant.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the case as above).

Taking up the errors assigned in the order in which appellant presents them, the first question arises on the refusal of the trial court to give certain instructions.

No. 1 and No. 2 are both peremptory instructions to return a verdict of “not guilty.”

No. 1 was asked when the state rested its case; and No'. 2 was asked at the close of all the evidence.

Requested instruction No. 3 concludes as follows:

“Gentlemen of the Jury, you are further advised that if you believe from the evidence introduced in this case or if you have a reasonable doubt thereof, that the deceased or state’s witnesses Hubbard or Baker, acting with the deceased took watermelons and roasting ears from the possession and premises of defendant without the consent and against the will of the defendant, then and in that event, you are instructed that said taking was wrongful and was a trespass and an injury to the defendant’s property, and an offense such as would authorize him under the law of this state to use such force as was necessary to prevent the perpetration or completion of said wrongful injury to his property or larceny thereof, and trespass upon his said premises to the extent of taking the life of the party or parties perpetrating the offense, if it reasonably appeared necessary, viewed from defendant’s standpoint at the time to prevent the completion of said injury and offense.”

In this connection, the trial court gave instruction No. 8, which is as follows:

“No. 8. You are instructed that the taking of roasting ears and watermelons by the deceased and his companions, Hubbard and Baker, from the premises of the defendant, George Schmitt, in the maximum amount referred to in the testimony, does not constitute a felony, and said acts alone on the part of the decedent and his companions would not constitute sufficient justification, or excuse, to authorize the shooting by the defendant of any one of said persons by a deadly weapon.
“Given and excepted to by defendant.
“Thomas D. Lyons, Judge.”

Counsel in their brief say:

“We contend that the killing of the deceased by the plaintiff in error was justifiable, upon the ground that it was necessary to prevent deceased and his co-conspirators from stealing and taking away the property of the plaintiff in error.
“Under the plain statutes of our state, the plaintiff in error was justified in firing upon the deceased, even as the witnesses for the state say he did, because of the fact that the said parties were stealing his property. The several statutes which are quoted below, give to the plaintiff in error this right to protect his property, and that too, without any regard to whether the act or acts, upon the part of the party slain, was of a grade of felony or misdemeanor.
“Under the authority in the case of Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923, and many others in this state, we contend that the honorable trial court committed reversible error, as shown in this assignment, in refusing to give defendant’s requested instruction No. 3 and in giving instruction No. 8.”

Our Penal Code provides that homicide is justifiable when committed by any person in either of the following cases:

“First. When resisting any attempt to- murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
“Second. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable ground to apprehend a design to- commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.” Section 2237, Statutes 1931.

Construing this section in Jackson v. State, 49 Okla. Cr. 337, 293 Pac. 567, 568, it is held:

“A person may resist a trespass on real property in his possession, where such trespass does not amount to- a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.” And see Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517.

In the Dickinson Case cited, this court said:

“A mere trespass upon the land of another, even after the trespasser has been warned to- depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass. * * * The putting in use of a deadly weapon shows- a wanton disregard of human life. Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse and explicit language:
“ ‘A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide’.”

In the case of Marshall v. State, 11 Okla. Cr. 52, 142 Pac. 1046, syllabus 2, this court said:

“A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is' attempted.”

This principle is as old as the common law, and is found whenever the principles of justifiable homicide are discussed.

The rule laid down in Corpus Juris is:

“An offense against property does not, in the absence of other circumstances, constitute adequate provocation to reduce an intentional homicide to manslaughter, although there is some authority to the contrary. The rule applies where the homicide was intentionally committed with a deadly weapon, although the trespass or larceny could have been prevented in no other way.” 29 C. J. 1145.

Our Penal Code provides:

“A design to- effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.” Section 2217, Okla. St. 1981.

The presumption of law is that a person intends all the natural, probable, and usual consequences of his act; and' this presumption of law will prevail unless from a consideration of all the evidence the jury entertain a reasonable doubt whether such intention existed.

The general rule is that if a man uses a deadly weapon, not in self-defense, and life is taken, he is presumed to intend the natural and necessary consequence of his own act. However, the presumption arising from the character of the weapon used is not conclusive as to intent.

If there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts.

The irresistible inference from the testimony on the part of the state is that the killing was a felonious homicide, and we think there was sufficient evidence before the jury to justify a verdict finding the defendant guilty of murder, because according to his own voluntary statements to the officers, admissions deliberately made within an hour after he fired the fatal shot, there was no pretense or claim on his part that the shooting, was done in self-defense. Considering this, together with the testimony of the witnesses for the state and the physical facts, the killing- was wholly without justification.

Upon the whole case, the evidence is in direct conflict as to who was the aggressor. In this conflict of evidence it became the duty of the jury to determine which of the versions given by the witness was the true one.

As to whether the act was done with deliberation or under such sudden excitement of passion or provocation as would reduce the offense of killing from murder to manslaughter of the first degree, it was the duty of the jury to determine.

It follows that there was no error committed in overruling the motions for a directed verdict, nor in refusing to give the instructions asked for by the defendant, presenting the same theory of the case.

Without a doubt the contention made is without merit in any view of the case.

It is next contended that the defendant did not have a fair trial, by reason of the alleged misconduct of the trial judge in making prejudicial remarks when ruling upon matters presented to him during, the course of the trial, and in making remarks on his cross-examination of some of the defendant’s witnesses, as shown by the record in the case, and that the judgment of conviction “should be reversed because of the prejudice of the honorable trial judge against the plaintiff in error,” and because the court erred in overruling the defendant’s motion for a mistrial.

Upon a careful examination of the record, we fail to find that the trial judge made any remarks which were prejudicial to the defendant. The record, however, clearly shows a course of conduct on the part of the defendant’s, counsel, during the course of the trial, that would have justified the court to admonish, rebuke, or censure counsel for irregularity of practice or misconduct.

It appears that a large number of frivolous objections were interposed to the evidence on the part of the state, and when the state rested, the motion for a peremptory instruction was made, which was without even the semblance of merit, a course of conduct tending to provoke some unguarded expression which might possibly violate some rule of propriety on the part of the court.

And during the progress of the trial, a motion for a mistrial based on alleged bias and prejudice, and alleged ■misconduct of the trial judge, was made in the presence of the jury; thus it seems that the trial judge himself was virtually placed upon trial by the defense.

We here quote with approval the language of Judge Philips, in case of Miller v. Oklahoma, 149 F. 330, 334, 79 C. C. A. 268, 9 Ann. Cas. 389:

“It is a method sometimes resorted to, as reprehensible as it ought to be infrequent, that in defenses deemed possibly desperate, for counsel by their course of conduct to so annoy and exasperate the judge as to make him, now and then, forget the pedestal on which he sits, and ,by retaliation display an unjudicial temper and lose his equipoise, in the expectation that thereby he may be led into' the commission of some reversible error. One of the surest methods for counsel to inspire a proper dignity on the part of the court and to obtain fair treatment is by their own respectful deportment and fairness to impress the court with a belief in their intellectual honesty and sincerity, rather than by persistent contention, contradiction, and wrangling with the court, and at times injecting improper matters into the trial, invite antagonism from the court and drive it from its propriety.”

In the same case, Miller v. Territory, 15 Okla. 422, 85 Pac. 239, 240, Justice Burwell speaking for the court said:

“It is the duty of trial courts to guard' well their expressions, and to act with dignity and discretion, to the end that the jurors may not be influenced by anything except the evidence, and they should be left to make their own deductions therefrom. Attorneys also' owe an equally high duty to the court. They should not be permitted to enjoy the benefits derived from questionable conduct unnoticed; for, if such were the case, then the services of the lawyer who acts from a high sense of duty would be unsought, and the lawyer who adopts unprofessional means would be able to render his client the more valuable service. A defendant is entitled to' a fair and impartial trial; but this does not mean that the prosecution alone shall be fair, and the defendant left to' take advantage of every cunning within his power. And where he, or those who- represent him, with his knowledge, do wrongful acts, while engaged in his defense, which reflect discredit upon him or his witnesses, it is only just that he should suffer the consequent inferences flowing therefrom, should those facts became known to' the jury.”

And concluding, said:

“The court may, in its discretion, ask proper questions of witnesses for the purpose of eliciting the truth; and it is not only proper, but conditions arise sometimes wherein it becomes its absolute duty, to do so. A court should never assume the attitude of a prosecutor, nor should it indicate to the jury by its manner or the form of its questions what it thinks of the merits of the case on trial; but a case will not be reversed on this ground, except where there has been a clear abuse of judicial discretion.”

Corpus Juris states the rule as follows:

“For the purpose of eliciting evidence which has not otherwise been brought out, it is proper for the judge to put questions to a witness either on his examination in chief or on cross-examination, and where anything material has been omitted, it is sometimes his duty to examine a witness. The judge may recall and examine a witness in order to supply an omission of proof on a material point. But he must conduct his examination in such a manner as to impress the jury with the idea that he is entirely impartial, and he must also conduct the examination in such a, way as not to indicate his opinion on the merits or any doubt as to the credibility of the witness.” 16 C. J. 831.

In the case of Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696, 698, this court said:

“It is not every improper remark of a trial court that will justify a reversal. If the remarks are such as might reasonably influence the jury against the defendant, a new trial should be granted; but, if after a full consideration of the entire record, it is clear that the verdict is right, and that, even if the remark had not been made, the jury could not have reasonably returned a different verdict, the judgment will be affirmed.”

In Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664, 672, it is said:

“The remarks of the court were unfortunate, but the attitude of the attorneys was in some measure responsible for this. The defendant and his attorneys cannot be heard to complain of matters brought on by their own wrong. If the rule were otherwise, any defendant in a criminal case would have it within his power to inject reversible error into his case and so defeat the ends of justice.”

And see Nix v. State, 20 Okla. Cr. 373, 202 Pac. 1042, 26 A. L. R. 1053.

In the case of Lacy v. State, 33 Okla. Cr. 161, 242 Pac. 296, this court said:

“A trial court is not required to< be a mere umpire, but in the interests of justice, and to see that both sides have a fair and impartial trial, may interrogate a witness but in so doing must refrain from allowing his action or words to indicate to the jury his opinion of the guilt or innocence of the defendant or the credibility of any Avitness.”

In support of this contention counsel cite and rely upon the cases of Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236, and Jones v. State, 20 Okla. Cr. 233, 202 Pac. 187.

A careful examination of the record leads to- the conclusion that the alleged misconduct complained of in this case does not fall within the condemnation of this court las expressed in the cases cited.

In both of these cases the witnesses were examined and cross-examined by the trial court in a way which clearly indicated that the court discredited their testimony, and there could be m> doubt that the conduct of the court constituted comment upon the testimony of the witnesses, and was an abuse of judicial discretion that was highly prejudicial to the substantial rights of the accused.

Upon the record before us, we are unable to say that the judge who tried this case transgressed the proper limits of judicial discretion in his examination of certain witnesses on his own motion, with a view of eliciting certain facts not fully brought out by questions of the respective counsel.

Our conclusion is that the conduct and action of the trial court in the foregoing respects in no way invaded the right of the defendant to a fair trial.

A number of errors are assigned on rulings of the court in the admission and exclusion of testimony. We have examined and considered the same and find in them no- reversible error. In this connection it may be observed that the trial court admitted evidence to sustain the defendant’s reputation for truth and veracity, and placed no limit upon the number of witnesses called by him to corroborate his own testimony, by testifying that his general reputation for truth and veracity was good.

It was held by this court in Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212, that:

“When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant his character cannot be attacked by the state; as a witness he puts his credibility at issue like any other witness.” Syl. 3.
“In a criminal trial where the defendant testifies as a witness in his own behalf and is not impeached, and his credibility is not attacked, except by contradiction of his testimony by other witnesses, evidence sustaining his reputation for truth and veracity is not admissible.” Syl. 5.

And see Wigmore (2d Ed.) vol. 2, par. 1104.

That rule is the logical result of the other one, that the law presumes every person to be reputed truthful until evidence has been adduced to the contrary; therefore, there is no reason why time should be spent in proving that which may be assumed to exist.

Exception to tlie refusal of the court to> give certain instructions asked for by the defendant, and exceptions taken to the instructions given by the court, are called to our attention and assigned as error.

We have carefully read and considered the instructions given by the court, together with the instructions requested and refused, and our conclusion is that those given, considered as a whole, fully covered, under the evidence, every phase of the case, and included all that was properly contained in those refused.

Upon the whole record, we find no errors which would authorize this court to reverse the conviction. The punishment fixed by the jury is tempered with mercy, as the minimum punishment allowed by law is fixed as the term of imprisonment.

Our conclusion is that the defendant had a fair and impartial trial, with every right accorded to' him that the law justifies or requires.

The judgment of the trial court is, therefore, affirmed.

DAVENPORT, P. J., and EDWARDS, J., concurring.


author: EDWABDS, J.

text:
    IRENE BAILEY v. STATE.
    No. A-8821.
    May 17, 1935.
    Rehearing Denied May 31, 1935.
    (47 Pac. [2d] 223.)

      John Y. Boberts, for plaintiff in error.
    J. Berry King, Atty. Gen., and J.. H. Lawson, Asst. Atty. Gen., for the State.
   EDWABDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county of having unlawful possession of intoxicating liquor, and her punishment was fixed at 30 days in jail and a fine of $50.

Defendant contends the evidence is insufficient to support the judgment.

The evidence is that officers, with a search warrant, came to the premises occupied by defendant, two of them going to the front door and two to the rear. Entry was forced by breaking an outside door, and, while this was being done, defendant fastened the bathroom door and poured a quantity of liquor into the bathtub. The officers broke into the bathroom and salvaged about three gallons of whisky from the tub. Defendant argues that the evidence is that she Avas living in the house with one Ted Thurman, that he brought the whisky to the place, and that she did not have possession of it and did not have any intent to' sell. She admits she attempted to pour it through the bathtub, but did so to protect Thurman, who was not present at the time. The reasonable force of this evidence is that defendant either had possession alone or jointly with Thurman. There is ample evidence to support the judgment.

The rule is well settled that a verdict of a jury will not be disturbed where there is any substantial evidence to support it. Parks v. State, 18 Okla. Cr. 277, 194 Pac. 281; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.