text:
    DAVID W. ROBERTS v. STATE.
    No. A-7558.
    Opinion Filed Oct. 18, 1930.
    Rehearing Denied Nov. 19, 1930.
    (292 Pac. 1043.)
    Frank Hickman, for plaintiff in error.
    J. Berry King, Atty. Gen., and' Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment for five years in the state penitentiary.

The evidence of the state was that the defendant went to the Rose Hill Filling Station in the east part of Tulsa, at about 1 o’clock in the morning on the 3rd day of January, 1929, and, after having the attendant put five gallons of gasoline in his car, asked him if he could change a $20 bill. After some conversation between defendant and the station attendant, the attendant finally found $19.05, which was the proper change for the $20 bill. In the meantime the defendant had gotten out of his car, and, leaving the engine running, had gone into the station carrying with him a billfold and what appeared to be a folded $20 bill. Defendant had the attendant count out the change into his hand; defendant put $15 in greenbacks into his billfold and the $4.05 in silver in his vest pocket and, as he handed the attendant the fake $20 bill, he pulled a pistol from his pocket and compelled the attendant and another person who was in the filling station with him to lie on the floor while he backed out of the station, got into his car, and drove away with the $19.05.

The station attendant and the other person present both testified that the taking of the money was accomplished through fear that the defendant would do> violence and personal injury to them if they resisted. The defendant was arrested a few minutes after he left the station, and when questioned by the officers said that he had “held up a filling station, — the station out there,” and had got the money and drove on east, and that he threw his gun away about 50 yards from where he was caught.

There is not much dispute in the evidence, except that the defendant testified that he had used no deadly weapon in gaining possession of the money, but that he merely “flimflammed” the station attendant out of the money by giving him a fake replica of a one-peso Mexican bill; that after handing this fake bill to the attendant he merely pulled a shoe horn and a reloading pencil out of his pocket, backed out of the station, and ran away with the money.

Defendant first contends that there is a fatal variance between the allegations of the information and the proof on the part of the state, in that if the state’s evidence proves anything, the defendant is guilty of larceny or obtaining property by false pretense, but is not guilty of robbery by the use of firearms. The information is in proper form and sufficiently charges the crime of robbery with firearms.

Section 1784, C. O. S. 1921, defines “robbery” as follows :

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

Section 1785, Idem, provides:

“To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”

The essential elements of robbery with firearms are no different from those of any other kind of robbery, except that it is necessary for the state to prove that in the employment of force or violence to take or retain the property, the accused must have used firearms.

Under section 1784, supra, the property taken in the robbery must be taken either “from his person or immediate presence” of the person robbed, and the taking must be against the will of the person robbed, and must be “accomplished by means of force or fear.” There can be no robbery committed until the property has been forcibly taken or forcibly retained from the person or immediate presence of the person robbed. Until the taking is thus completed, the offense 'would be only an attempt to rob.

The defendant contends that the crime was complete in the case at bar when the defendant received the $19.05 from the filling station attendant, while the state contends that the receiving of the $19.05 was only the first step in the robbery, and that when the defendant produced his pistol and forced the station attendant to' lie on the floor and took the money from the immediate presence of the station attendant and by force and fear retained possession of the same, that then the crime was completed and was robbery, and not larceny. The fact that the attendant delivered the $19.05 to the defendant, under the defendant’s plan or scheme to obtain possession of the same, did not constitute that voluntary delivery required to complete the transaction, but was only one step in the plan of the defendant to' obtain possession of such funds by force and violence if necessary. Evidently the $19.05 was handed to the defendant to enable him to- determine whether he had been given the correct change, and was not intended to be a voluntary or unconditional surrender of the possession of such funds by the attendant. The defendant having obtained possession of such funds by his plan or scheme, then retained possession of the same by putting the attendant in fear by the use of firearms, and thus completed the crime of robbery.

The defendant cites the case of Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149, as authority for the proposition that the original taking must be by firearms. In paragraph 2 of the syllabus that court said:

“To constitute ‘robbery/ as distinguished from ‘larceny from the person/ there must be force, violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to have been taken by force and violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.”

In that case there was no evidence of force or violence or intimidation in the taking, and no evidence that the defendant obtained or retained the personal property alleged to have been taken by force or violence or by putting in fear. The court does not undertake in that case to-say when the taking was completed.

The evidence in the case at bar shows that the violence or force used by the defendant was not used to resist arrest nor to effect an escape, but was used concomitant with the taking and retaining itself and therefore comes within the requirements of the robbery statute, and within the definition of robbery set forth in the case of Monagham v. State, supra.

In the case of Armstrong v. Commonwealth, 190 Ky. 217, 227 S. W. 162, the Court of Appeals of Kentucky said:

“They are that on May 5, 1920, the appellant entered the jewelry store of F. J. Heintz in the city of Lexington and requested the latter to show him a diamond ring, saying he wished to purchase it, to match one owned by his wife, who was then in Cincinnati. Heintz was alone in the store; his clerk being at the time upstairs. Heintz at once took from a box in the showcase and placed on the counter for appellant’s inspection a ring containing a diamond cluster wrapped in tissue paper, which he recommended. He also placed on the counter, similarly wrapped, a ring with a single diamond, which, when opened, appellant seemed to prefer. While this diamond ring was lying on the open paper, appellant commanded Heintz to throw up his hands and pointed a pistol to' his face. Instead of throwing up his hands, Heintz called loudly to his clerk and dodged behind the counter, then arose, intending to grab the diamond ring, but this he was prevented from doing by a shot fired at him by appellant with the pistol, followed by two others, one of the three striking and passing through his arm. Appellant then ran, carrying the diamond ring with him. He was followed to the door and down the street by Heintz, whose shouts caused a policeman to intercept and arrest him. Upon being searched by the policeman, appellant was found in possession of the diamond ring of Heintz, and with the ring there was taken from his person a pistol, pair of brass knucks, and some small saws, such as are used by burglars.
““ * * The appellant’s complaint of the trial court’s refusal to1 direct a verdict of acquittal is equally without merit. It seems to be based on the claim of a variance between the allegations of the indictment and the evidence; it being argued by his counsel that whatever force was used by appellant upon or toward Heintz was employed after he obtained possession of the ring, and that to constitute robbery the force must have been used, or Heintz put in fear, previously to his being deprived of the ring. This contention is not supported by the evidence, nor does it correctly state the law, for it is not indispensably necessary that the force employed or the' putting of the person robbed in fear should precede the taking of the property. It will be sufficient if both or either accompany the taking of the property, and that was the case here. Heintz and appellant were the only persons present When the ring was taken by the latter, and the testimony of Heintz, which was uncontradicted, clearly shows that the diamond ring was taken by appellant when or immediately after he pointed his pistol at him and ordered him to throw up his hands, or while he was shooting at him; and in any event there can be no doubt that the taking if the property constituted robbery, as it was effected both by force and putting the owner in fear. The distinguishing characteristic of robbery is the employment of force or intimidation in taking from the person or possession of the owner or custodian personal property; while larceny is, ordinarily, a taking of such property by stealth, and may, or may not, be from the person or presence of the one in possession. Any force sufficient to take one’s property against the will is robbery. Graves v. Commonwealth, 186 Ky. 479, 217 S. W. 356; Adams v. Commonwealth, 153 Ky. 88, 154 S. W. 381, 44 L. R. A. (N. S.) 637; Stockton v. Commonwealth, 125 Ky. 268, 101 S. W. 298, 30 Ky. Law. Rep. 1302; Brown v. Commonwealth, 135 Ky. 635, 117 S. W. 281, 135 Am. St. Rep. 471 [21 Ann. Cas. 672]; Blanton v. Commonwealth, 139 Ky. 411, 58 S. W. 422, 22 Ky. Law Rep. 515; Jones v. Commonwealth, 112 Ky. 689, 66 S. W. 633, 23 Ky. Law Rep. 2081, 57 L. R. A. 432, 99 Am. St. Rep. 330; Breckenridge v. Commonwealth, 97 Ky. 271, 30 S. W. 634, 17 Ky. Law Rep. 163; Davis v. Commonwealth, 54 S. W. 959, 21 Ky. Law Rep. 1295.”

In the case of Louis McNeal v. State, 11 Ohio Dec. 782, it is said:

“One who goes into a hardware store, asking to see a revolver, and when shown one, loading it, pointing it at the clerk and backing out of the store, is guilty of robbery.
“Jenner, J. The act of the plaintiff in error in going into a hardware store, asking, to see a revolver, and, when shown one, loading it, pointing it at the clerk, and backing out of the store with the weapon, constituted the crime of robbery notwithstanding the revolver was peaceably given to McNeal and that there was no violent acts until after he had obtained it.”

When the facts in the case at bar are considered in connection with the statute in this state defining robbery and the áuthorities cited in this opinion, it is evident that the defendant was guilty of robbery and of no other crime, and that therefore there is no fatal variance between the allegations of the information and the proof adduced at the trial.

Defendant next contends that the court erred in failing to instruct the jury on the law applicable to larceny or obtaining money by false pretense. Since there is no evidence in the record tending to establish the crime of larceny or obtaining money by false pretense, it was not necessary for the court to* give any such instruction.

The defendant made no objection to any of the instructions nor saved any exceptions to the same, and made no' request for any other or different instructions. The instructions given by the court when considered together fairly state the law of the case and are as favorable to the defendant as the evidence requires.

The defendant complains of other errors, but they are all without any substantial merit.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    LLOYD ADAMS v. STATE.
    No. A-7764.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 269.)
    Darnell & LaRue and E. N. Sasseen, for plaintiff in error.

      Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county of tbe crime of unlawful possession of intoxicating liquor, and bis punishment fixed by tbe court at a fine of $250 and imprisonment in tbe county jail for 60 days.

Defendant argues numerous errors, but to enable tbe court to decide this case it will only be necessary to consider tbe errors complained of with respect to tbe instructions of tbe court.

Tbe defendant complains of instruction No-. 7, which is an attempt to define tbe term “prima facie evidence.”

In tbe case of Hargis v. State, 33 Okla. Cr. 283, 243 Pac. 986, this court said:

“Tbe phrase ‘prima facie evidence,’ as used in tbe statute, is such evidence as in tbe judgment of tbe law is sufficient to establish tbe fact, if it be credited by the jury, and, unless rebutted or tbe contrary proved, it remains sufficient for that purpose.”

In tbe case of Stites v. State, 44 Okla. Cr. 92, 279 Pac. 911, this court said:

“Under a provision of tbe act of 1913 (chapter 26), declaring that tbe keeping in excess of a certain amount of intoxicating liquors shall be ‘prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,’ evidence of such possession is sufficient to establish tbe unlawful intent, unless rebutted, or tbe contrary proved, yet it does not malte it obligatory upon the jury to convict after tbe presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of bis guilt beyond a reasonable doubt.

It is not necessary to set out instruction No. 7, but it is sufficient to say that this instruction is not a correct statement of the law of prima facie evidence as defined by this court.

Defendant further complains that the court erred in giving instruction No. 11, which reads as follows:

“Gentlemen of the Jury, you are instructed that if the state proves beyond a reasonable doubt in your minds, that the defendant in this case, Lloyd Adams, had more than one quart of corn whisky as charged in this case, then it will be your duty to- bring in a verdict of guilty unless the defendant proves to your satisfaction that he did not have it, the said corn whisky, with the intent to violate the law with the same, that is, to barter, sell, transport, give away or otherwise dispose of said whisky contrary to law.”

This instruction placed the burden of proof squarely upon the defendant, and for the giving of the same this case must be reversed. Cowherd v. State, 7 Okla. Cr. 1, 120 Pac. 1021; Havill v. State, 11 Okla. Cr. 483, 148 Pac. 683; Beal v. State, 12 Okla. Cr. 157, 152 Pac. 808; Stribling v. State, 18 Okla. Cr. 48, 192 Pac. 590; Tabor v. State, 23 Okla. Cr. 303, 214 Pac. 564; Hooper v. State, 26 Okla. Cr. 227, 223 Pac. 209; Jay v. State, 42 Okla. Cr. 32, 274 Pac. 487; Lowe v. State, 42 Okla. Cr. 313, 275 Pac. 1066.

This court in numerous cases has approved all the instructions necessary to be given by a county court in the trial of a liquor case. If trial courts will give the instructions approved by this court, it will not be necessary to reverse their cases.

For the error in giving instructions Nos. 7 and 11, this cause is reversed.

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


author: DAVENPORT, J.

text:
    JESSE MALCOLM v. STATE.
    No. A-7802.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 268.)
    Freeman E. Miller, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of having possession of mash fit for distillation of whisky, and two gallons of spirituous liquor, and was sentenced to pay a fine of $150 and be imprisoned in the county jail for 30 days. The defendant has appealed from said judgment to this court.

The testimony on behalf of the state, in substance, shows that the defendant rented what was known as the Kelly place and had subrented some of this land to a colored man by the name of Paul Ealom; that the said Ea-lom and wife were living on the farm at the time the search was made by the officers who claim they found a large quantity of mash, fit for distillation, and some whisky. The only testimony in the record which tends to connect the defendant with the possession of the mash is the testimony of Paul Ealom and his wife. All the officers know is they found the mash on the place the defendant bad rented, and which he had subrented a portion to Paul Ealom. The testimony shows that Ealom and wife occupied the improvements on the place, except one room which the defendant had reserved for his own use when he was out at the farm. Some testimony was introduced by the state tending to show conversations of the defendant with other parties in which he admitted that the mash and whisky found belonged to him.

The defendant testified in his own behalf, and admitted he had rented a portion of the Kelley farm to Paul Ealom to- cultivate, but denied he had told Paul Ealom he would try to make the whisky, and, if anything came up, Paul would take the blame for it. The defendant further testified that he did not know anything about the whisky being there.

On cross-examination defendant stated he went out to the farm often, sometimes once a day, and carried feed to his chickens and hogs. The feed consisted of oats and chops; “I never carried any bran out there; I never fed any sugar out there; I would go home every night from the farm; I moved to the farm several days after I made the contract, and after this charge was filed against me. Before Paul Ealom was arrested I would go- out there to feed my chickens and hogs, and to look after the place; I had two mules, three hogs, and about 75 head of chickens on the place.” This is in substance the testimony.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. When the case was called for trial, and before the trial began, the defendant demurred to the information, on the ground, first, that the said information did not state facts sufficient to charge the commission of a public offense by the defendant. Second, that said information is so vague, indefinite, and uncertain in its averments that it does not apprise the defendant of the charge- sought to be made, and does not enable a person of common understanding and knowledge to be informed of what it intends to charge against the defendant. Third, that said information is duplicitous and charges more than one offense against the defendant.

The -charging part of the information is as follows:

“That on the 13th day of May, 1929, one Jesse Mal-com, then and there being, did then and there willfully, and unlawfully, manufacture, ferment, and possess a certain quantity of mash, to wit: 325 gallon of mash, fit- for distillation of whisky, and two gallons of spirituous liquor, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.”

Section 2608, O. O. S. 1921, in part provides that the defendant may demur to the indictment or information, when it appears upon the face thereof that more than one offense is charged in the information or indictment.

Section 1 of the Session Laws 1923-24, page 43, c. 42, is as follows:

“It shall be unlawful for any person, or persons, within this state to- manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.”

Section 7002, C. O. S. 1921, defines the offense of manufacturing, selling, bartering, giving away, and otherwise furnishing spirituous, fermented, or malt liquor, or any imitation thereof, or substitute therefor, and prescribes a penalty for its violation. It is urged by the defendant in this case that the information is bad, for the reason that it charges two offenses, one for possession of spirituous liquor, and one for the manufacture and possession of mash fit for distillation. Section 2558, Comp. St. 1921, says:

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

The information in this case, without question, charges two separate and distinct offenses, one for manufacturing, fermenting, and possessing a certain quantity of mash fit for distillation, as provided in section 1, c. 42, Session Laws 1923-24, p. 43, and one for the manufacture of spirituous, vinous, fermented, or malt liquors in violation of section 7002, C. O. S. 1921, by manufacturing spirituous liquor, to wit, whisky. In this state, by both the statute and by numerous decisions of this court, it is well settled that the defendant cannot be placed on trial for two offenses at the same time. Where it appears that a defendant was called upon to' defend two separate offenses, over his objection and exceptions, a conviction cannot stand. The information in this case is duplicitous. Cole et al. v. State, 38 Okla. Cr. 396, 262 Pac. 712.

The court erred in overruling the demurrer of the defendant to the information. There are other errors assigned by the defendant, but in the view we take of this record it is not necessary to consider them.

For the reason stated, the case is reversed.

EDWABDS, P. J., and CHAPPELL, J., concur.


text:
    LOTTIE ALLEN v. STATE.
    No. A-7625.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 271.)
    Joe S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of robbery with firearms, and her punishment fixed by the court at imprisonment in the state penitentiary for 15 years at hard labor.

The state alleged that on the 7th day of March, 1929, Earl Smith, Clyde Hancock, Lottie Allen, and Earl Evans, with firearms, in the nighttime, robbed Marian dimes of $390. A severance was granted, and a trial of the defendant resulted in her conviction by the jury.

The evidence of the state shows that on the evening of March 7, 1929, Earl Smith and Clyde Hancock knew Marian dimes and that he kept a large amount of money about his home; that they went to the home of the defendant in Henryetta and there met Pete Blair, who had been keeping company with the defendant, and there they drank a quantity of whisky; defendant was dressed at that time in a plain house dress. 'Smith asked Blair, who had a Ford coupe, if he wanted to make some money. Smith had a pistol which had only one shell in it and wanted to get some more. Defendant said there were no shells on the place. Defendant and Smith went into another room, and when Smith returned into' the room where Hancock had remained, he had stockings with him out of which Smith and Hancock made masks which were used and worn by them in the robbery of Marian dimes that night. The defendant changed her clothes and put on yellow overalls, and when Smith and Hancock were ready to leave the house defendant said she was going with them because she needed the money. Smith, Hancock, and defendant all left defendant’s home in Blair’s automobile, he doing the driving. They went to the town of Hichita, where Smith and Hancock, who had put on masks, went into the home of Marian Jimes, while Blair and the defendant remained in the car. Smith went into- dimes’ bedroom and robbed him of $390, and when dimes resisted Smith shot him, from the effects of which wounds dimes died the next morning. Hancock covered Grandma Ford, the mother of Jimes, with a pistol and kept her from going to his rescue. Smith and Hancock then left the house, Smith carrying Jimes’ pants in his hands. Jimes procured a gun and fired several shots at them, one of which took effect in the legs of defendant while she was standing on the runningboard of Blair’s car. They then went to the home of defendant, where they had a doctor called for her, and before leaving she said to them, “you have gotten me into this and don’t go away and leave me this way without any money.” Hancock got a $20 bill from Smith and gave it to her. Smith, Hancock, and Blair then proceeded to the home of Brady Blair, father of Pete Blair, where they divided the money; each receiving $55, and Blair taking $55 for defendant. Blair gave this money to defendant to pay doctor bills and buy groceries and clothing for her children.

On March 26th, Blair made a statement to the officers, detailing the circumstances of the robbery. This statement was reduced to writing and was read to the defendant and handed to her to read, and she then and there made a statement which was reduced to writing, stating that this statement of Blair’s was true.

Defendant in her testimony admitted that she went with these parties to the Jimes home in Hichita, and was at the automobile when the robbery and shooting of Jimes took place, and that she was shot in the legs while in the street in front of the Jimes home; that she, Smith, Hancock, and Blair then came back to her home; and that she was given $20 by Hancock. She also testified that she did not know when the parties left her home that their purpose was to go to rob any one, but that she thought she was going out with them, and her purpose and understanding was to have intercourse with Smith; that the first sbe knew of any other purpose on their part was when they stopped about 15 minutes before reaching- Hichita and Smith put on a mask; and that she then said she did not want to be in a robbery.

Defendant earnestly contends that this evidence was insufficient to support the verdict of the jury.

The fact that the robbery was planned in defendant’s home, that Smith procured the masks in defendant’s room, and that defendant changed her clothes and went with them when the robbery was committed, the fact that defendant received her share of the proceeds of the robbery, and the fact that she signed and adopted the confession of Blair as her confession, makes the evidence sufficient to- support the verdict of the jury.

Defendant next contends that one V. B. Johnson, a member of the jury who tried the defendant, was biased and prejudiced against the defendant and had made statements prior to the trial, in the presence of other parties, in which he said that if he was on the jury and they proved defendant was drunk, he would “pour it on her.” That the juror did not disclose this bias and prejudice in his voir dire examination, and the defendant did not discover that said juror was biased and prejudiced until after the verdict of the jury had been returned.

In her motion for a new trial the defendant set up the bias and prejudice of this juror and supported the same -by the affidavits of L. G. Shields and E. L. Boyd, who made affidavit in substance that the juror had said in their presence “that if he was on the jury and they proved that she, Lottie Allen, was drunk, he would pour it on her.” The juror Johnson made affidavit denying that he had made any such statements. The state also introduced affidavits impeaching Shields and Boyd for truth and veracity in the community where they resided. The state also introduced affidavits showing the reputation for truth and veracity of the juror Johnson was good.

The question of whether the defendant was injured in her substantial rights and was prevented from having a fair and impartial trial because of the bias and prejudice of the juror Johnson was an issue of fact to be tried by the trial court upon the hearing of the motion for a new trial. The court found such issue in favor of the state and overruled defendant’s motion for a new trial.

The sustaining or overruling of motion for a new trial is a matter in the sound discretion of the trial court, and such ruling will not be disturbed unless it appears from the record that there was an abuse of such discretion. Adams v. State, 43 Okla. Cr. 179, 277 Pac 688.

Por a full discussion of the necessary proof and the discretion of the trial court in the matter of bias and prejudice of jurors, see Smith v. State, 5 Okla. Cr. 283, 114 Pac. 350; Smith v. State, 19 Okla. Cr. 22, 197 Pac. 514.

An examination of the record discloses that the trial court properly denied defendant’s motion for a new trial on the ground of bias and prejudice of the juror Johnson.

The defendant next contends that the court erred in admitting to the jury incompetent, irrelevant, and immaterial evidence.

It appears from the record that Pete Blair, who1 aided in the robbery, signed a confession detailing the facts as set forth in the evidence of the state. That thereupon such statement was read over to the defendant, and defendant, having herself read the statement, also signed a statement that the confession of Blair was true. Defendant contends that this statement of Blair, made several days after the crime was committed, was inadmissible against her. This would have been true except for the fact that the defendant personally adopted this confession as her statement of the facts surrounding the robbery and her part in it, and thereby made the confession her own confession, and the same was, for that reason, admissible against her.

Defendant next urges that the punishment is excessive.

The statute under which the defendant was prosecuted fixes the maximum punishment at death. Under the facts and circumstances of this case, the jury could have assessed the death penalty. But, they having failed to fix the punishment, the court no doubt in pronouncing judgment and sentence on the verdict took into' consideration the fact that defendant was a woman, that she was wounded during the robbery, and that she did not fire the fatal shot, and, by reason of these circumstances, fixed defendant’s punishment at 15 years in the penitentiary.

The record presents no reason for reduction in the punishment.

For the reasons stated, the cause is affirmed.

EDWAEDS, P. J., and DAVENPORT, J., concur.


text:
    JOHN LOVINS v. STATE.
    No. A-6982.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 273.)

      Darnell & LaRuei, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of the crime of preventing and dissuading witnesses from appearing in the trial of a case in Washita county, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The defendant in his brief argues two questions: First, the court erred in overruling the defendant’s demurrer to the information; second, the court erred in not sustaining defendant’s demurrer to the evidence and refusing to- instruct the jury to return a verdict of not guilty.

As we view the case, it will only be necessary to -pass upon defendant’s second ground of error.

Defendant was prosecuted under section 1647, C. O. S. 1921, which reads as follows:

“Any person who wilfully prevents or dissuades any person who has been duly summoned or subpoenaed as a witness from attending pursuant to the command of the summons or subpoena is guilty of a felony.”

In the case at bar, it was alleged that there was a case pending in the district court of Washita county and that the defendant prevented and dissuaded Charlie Rig-ney and Robert Rigney, who resided in Custer county, from appearing as witnesses in such case pending in Washita county. It is admitted by the state that the only service of subpoena upon these witnesses residing in Custer county was by registered mail sent to them by the court clerk of Washita county. The question is, Were these subpoenas served as required by law?

The defendant contends that it was not only necessary for the state to prove that the defendant dissuaded and prevented the witnesses from attending court in Wash-ita county and testifying in said trial, but also that the state must prove that the witnesses had been duly summoned or subpoenaed.

Section 871, C. O. S. 1921, provides:

“All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts, upon a praecipe filed with the clerk demanding the same.”

Section 593, O. O. S. 1921, provides:

“Service of subpoenas for witnesses in civil and criminal actions in the district, superior, county and justice of the peace courts of this state shall be made by the officer, or other person making the service, by either personal service of such subpoena containing the time, place and the name of the court, and the action in which he is required to testify, or by mailing a copy thereof by registered mail, not less than three days before the trial day of the cause upon which said witness is required to attend, and the person making such service shall make a return thereof showing the manner of service, and if the same be by registered mail, he shall file with such return the registry receipt; provided, that the person or county attorney issuing the praecipe for a subpoena shall state therein the manner in which the witness or witnesses shall be served, and the officer or person serving such subpoena shall serve the same in the manner directed by the praecipe, and make his return in accordance therewith ; provided, further, that if the praecipe calls for serving such subpoena by registered letter, then the clerk shall serve the same as provided for the serving of jurors.”

This act is section 2 of the Session Laws of 1913, c. 73, and provides generally for the service of civil and criminal processes. Section *593, supra, was amended in 1919 by section 6339, C. O. S. 1921, which reads as follows:

“All summons, subpoenas, and other process issued out of court in some county other than the county in which such sheriff lives, shall be sent to the court clerk of such county in which same is to be served, and same shall be delivered by such court clerk to such sheriff for service. The fees for such service in civil matters must be collected by the court clerk before such service is had, and in criminal matters the court clerk shall collect same from the proper county, as the manner provided by law. The court clerk shall keep a record of all foreign service together with all fees earned and collected. Such fees shall be turned into the county treasury as other sheriff fees earned.” <

Where there are two statutes covering the same subject, one a general statute and the other a special statute, and both cover the same subject-matter, the special statute prevails. A statute which is enacted for the primary purpose of dealing with a particular subject and which prescribes the terms and conditions of that particular subject-matter, supersedes a general statute which does not refer to the particular subject-matter but does contain language which might be broad enough to cover the subject-matter if the special statute was not in existence. Citizens’ State Bank of Vici v. Gettig, 77 Okla. 48, 187 Pac. 217; Greer v. Bird, 93 Okla. 246, 220 Pac. 579; Hays v. City of Muskogee, 117 Okla. 158, 245 Pac. 842.

Section 2838, C. O. S. 1921, provides:

“No person is obliged to attend as a witness, before a court or magistrate out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness.”

Under section 593, supra, service of subpoenas by registered mail upon witnesses residing in Washita county would have been legal. To authorize the issuance of subpoenas for witnesses outside of the county, section 2838, supra, must be complied with, and such subpoenas when legally issued could only be served in the manner provided for in section 6339, supra.

In the case of Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883, 888, in the body of the opinion, this court after setting out section 1647, supra, said:

“Prom this it is seen that, in order to make the acts charged in the information. a felony, it is necessary that the witness who was so prevented or dissuaded from attending court must have been duly summoned or subpoenaed as a witness at the time the acts complained of were committed.”
50 Corpus Juris, § 56, p. 467, lays down the following rule:
“The proper method of serving process must be adopted in order to give jurisdiction, and it must be served by a proper officer or person. * * * The general rule is that directions of a statute as to the service of process are mandatory and must be strictly followed.”

Under section 76, p. 483, supra, it is said:

“Where, as is practically the case in all jurisdictions now, service of process is regulated by statute, or court rules, the specified method is exclusive and must be followed, and such service must appear of record.”

Section 58, p. 469, supra:

“An officer of one county cannot legally serve process directed to an officer of another county, nor can he make service beyond the limits of his own county unless expressly authorized to do so by statute.”

Under section 6339, supra, where a subpoena had been properly issued for service upon a witness residing in another county, the clerk could not serve the same by registered mail, but must send such subpoena to> the court clerk of the county where the witness resided, there to be served by the sheriff of such county as if the subpoena had been issued to him in the first instance.

It appearing from the record that no subpoena had been legally issued or- served upon the witnesses it was alleged defendant had prevented and dissuaded from appearing and testifying in the case, the state wholly failed to establish one of the two material allegations necessary to prove in order to secure a conviction, namely, that the witnesses had been summoned or subpoenaed. The trial court therefore erred in overruling defendant’s demurrer to the evidence and in refusing to instruct the jury to return a verdict of not guilty.

For the reasons stated, the cause is reversed.

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


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    MRS. J. M. BLAIR v. STATE.
    No. A-7663.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 275.)
    J. Roy Orr, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted of tbe crime of maintaining a disorderly bouse, and her punishment fixed by tbe court at a fine of $100.

Without going into detail, it is enough to say that tbe evidence of tbe state establishes tbe guilt of tbe defendant beyond a reasonable doubt.

Tbe defendant contends that tbe court erred in overruling her demurrer to tbe information, tbe charging part of which reads as follows:

“On or about tbe 18th day of August, in tbe year of our Lord one thousand nine hundred and twenty-nine and for some time prior thereto, at and within said county and state did then and there intentionally, willfully and unlawfully keep and maintain a disorderly bouse, or place of public resort, to wit: what is known as the Upchurch Hotel in Anadarko, Okla., wherein and by which the peace, comfort and decency of the immediate neighborhood is habitually disturbed, and in said house, for their own gain and lucre, certain evil disposed persons, men as well as women of the evil name, fame and conversation to come together, at night as well as by day, there to remain and be drinking, cursing, swearing, quarreling, whoring and otherwise misbehaving, themselves, and permitting others therein to so misbehave, to the injury and common nuisance of all the peaceable citizens of the community, contrary to the form of the statute,” etc.

The first contention of defendant is that the information is duplicitous, in that it charges the defendant both with the keeping of a disorderly house and also with the keeping of a bawdyhouse in the same count of information.

In the case of Putnam v. State, 9 Okla. Cr. 535, 132 Pac. 916, 46 L. R. A. (N. S.) 593, in the third paragraph of the syllabus, this court said:

“The terms ‘bawdyhouse’ and ‘disorderly house’ are used interchangeably and mean the same thing.”

This information charges but one offense, the maintaining of a disorderly house, and the defendant’s demurrer was properly overruled.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

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


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    FRANK SPENCER v. STATE.
    No. A-7610.
    Opinion Filed Nov. 19, 1930.
    (293 Pac. 278.)
    See, also, 48 Okla. Cr. 340, 291 Pac. 987.
    Cox & Cox, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of assault with a dangerous weapon, and his punishment fixed by the jury at imprisonment in the state penitentiary for a year and a day.

The Attorney General filed a motion on behalf of the state to strike the case-made and to consider the ease only as upon the transcript, for the reason that the case-made was not served on the county attorney within the time allowed by the trial judge for its service. This motion was sustained by the court. This court has held that in cases of this character it will only consider assignments of error predicated upon the record proper. Cohn v. State, 4 Okla. Cr. 494, 113 Pac. 217, 219; Day v. State, 7 Okla. Cr. 276, 123 Pac. 436; Jenkins v. State, 11 Okla. Cr. 168, 145 Pac. 500; Tracy v. State, 24 Okla. Cr. 144, 216 Pac. 941.

The charging part of the information is as follows:

“That Prank Spencer, late of the county aforesaid, on the 18th day of January, in the year of our Lord, one thousand nine hundred and twenty-nine, in the county of Lincoln and state of Oklahoma, aforesaid, then and there being, did then and there willfully, unlawfully and felo-niously, wrongfully, and intentionally, without justification or excusable cause made an assault in and upon one J. E. Buckner, with a certain knife being then and there a sharp instrument and weapon, and then and there in the hands of him, the said Prank Spencer, and that the said Frank Spencer did, then and there with said knife so had and held as aforesaid, strike, cut, stab, wound and injure then and there the said J. E. Buckner, in and upon the body and about the neck of him the said J. E. Buckner, with the unlawful, wrongful and felonious intent then and there on the part of him the said Prank Spencer to do great bodily harm and injury to' him the said J. E. Buckner.”

The defendant demurred to this information. The grounds of the demurrer are:

“1. That said information does not state facts sufficient to charge the crime of assault with a dangerous weapon against said defendant.
“2. That said information does not state facts sufficient to charge a felony under the laws of the state of Oklahoma.
“3. That said information is duplicitous in form and does not with reasonable certainty inform a person of common understanding of the charge against him.”

The charging part of this information is copied practically verbatim from the information in the case of Cotton v. State, 22 Okla. Cr. 252, 210 Pac. 739, wherein the court held a similar information to be sufficient.

While the information in the case at bar is not a model one, it was sufficient to charge the defendant with assault with a dangerous weapon and was not duplicitous.

Defendant complains of numerous other errors, but they do not appear upon the record and cannot therefore be considered by this court.

For the reasons stated, the cause is affirmed.

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


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    FRANK MANN v. STATE.
    No. A-7583.
    Opinion Filed Oct. 25, 1930.
    Rehearing Denied Nov. 19, 1930.
    (292 Pac. 883.)
    Hart, Edwards, Wells & Greer, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted m the district court of Seminole county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for five years.

The evidence of the state was that the defendant and Pat Harris went to the tent occupied by J. W. Watts and held him up, that defendant had a pistol and Harris had a shot gun, and that by force and threats they took $65.00 off the person of Watts. Warts was corroborated in his evidence by Charley Williams, who was present when the robbery took place. Both witnesses were personally acquainted with the defendant and Harris, and both positively identified them as the robbers. Watts was able to identify a $1 bill found in the possession of Harris as being one he had in the money that was taken from him; $37 was found on the person of Harris; and $87 on the person of the defendant. On the way to the police station the defendant made the statement in the presence of the officers that he would be willing to give up the entire $87 rather than be connected with a charge of this kind.

The defense was an alibi.

Defendant contends that the evidence is insufficient to sustain the verdict and judgment. The evidence is conflicting. The testimony on the part of the state’s witnesses is ample to support the verdict and judgment.

The uniform holding of this court is that:

“The jury are the exclusive judges of the weight of the evidence; and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, its determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice.” Lady v. State, 18 Okla. Cr. 59, 192 Pac. 699; Leslie v. State, 22 Okla. Cr. 111, 210 Pac. 297; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Pope v. State, 34 Okla. Cr. 417, 246 Pac. 657; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

It is next contended that the trial court erred in refusing to grant the defendant a new trial on the ground of newly discovered evidence.

In Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253, this court said:

“The granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court. * * *
“Where, in a motion for a new trial on the ground of newly discovered evidence, there is no proper showing that such evidence was in fact newly discovered, and the motion does not set out any facts or circumstances showing diligence to discover such evidence, and it is apparent also that the alleged newly discovered evidence, when considered in connection with the evidence introduced upon the trial, is largely cumulative, and is not such as would likely change the result, should a new trial be granted, no manifest abuse of discretion is shown by the trial court in overruling the motion.” Waller v. State, 19 Okla. Cr. 329, 199 Pac. 224; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Newman v. State, 35 Okla. Cr. 296, 250 Pac. 554.

From an examination of defendant’s motion for new trial and the affidavit supporting same it appears: First, that the evidence is apparently not newly discovered; second, because the motion does not set out the facts constituting the diligence employed in discovering the new evidence; third, because the alleged newly discovered evidence is not such as would likely change the result, if a new trial had been granted.

The showing for a new trial on the ground of newly discovered evidence being insufficient, the court did not err in overruling, the motion.

The evidence being sufficient -to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed.

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


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    PAT HARRIS v. STATE.
    No. A-7598.
    Opinion Filed Oct. 25, 1930.
    Rehearing Denied Nov. 19, 1930.
    (292 Pac. 885.)
    Hart, Edwards, Wells & Greer, for plaintiff in error.,
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Frank Mann with the crime of robbery with firearms. A severance was had, and the defendant was found guilty and sentenced to be imprisoned in the state penitentiary for eight years, from which judgment the defendant has 'appealed.

The witnesses on behalf of the state positively identified the defendant as one of the parties who hi-jacked the prosecuting witness, J. W. Watts, on the night of February 26, 1929, at his tent near Seminole, Seminole county, Okla.

The defense is an alibi, and the defendant offered a number of witnesses to show he was at a dance some distance away, and could not have been at the tent of the prosecuting witness at the hour the robbery is reported to have taken place. Considerable testimony is incorporated in the record with reference to the prosecuting witness, J. W. Watts, being a bootlegger and selling whisky. The foregoing is the substance of the testimony as stated by the witnesses testifying for the state and the defendant.

This is a companion case to Mann v. State, 49 Okla. Cr. 210, 292 Pac. 883.

The defendant has assigned several errors alleged to have been committed in the trial of his case, but in his brief he discusses only two questions, the first being that the evidence is insufficient to sustain the judgment; and, second, that Frank Mann, jointly charged with him, was tried subsequently to the defendant’s trial and was only given five years, and, if the court should hold the testimony sufficient and sustain the conviction in this case, the sentence should be modified to the same sentence imposed upon Frank Mann, who was jointly charged with this defendant.

The uniform bolding of this court is that the jury is the exclusive judge of the weight of the evidence and credibility of the witnesses and, if there is a conflict in the evidence, or if it is such that different inferences can properly be drawn from it, its determination will not be interfered with, unless it is clearly against the weight of the evidence, or unless it appears to have been influenced by passion or prejudice. Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The evidence in this case is sufficient to sustain the judgment. After carefully considering the testimony in this case, there appears to be no just reason for this court to interfere with the verdict of the jury and judgment of the court by modifying the sentence.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    ERNEST REYNOLDS v. STATE.
    No. A-7368.
    Opinion Filed Aug. 29, 1930.
    Rehearing Denied Nov. 19, 1930.
    (292 Pac. 1046.)

      Joe S. Eaton and Hepburn & Hepburn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county on a charge of exposing one Leitha Rosenburg to the disease of gonorrhea, and his punishment fixed by the jury at imprisonment in the penitentiary for the period of five years.

The evidence of the state was that the defendant was considerably older than the complaining witness, Leitha Rosenburg, who when sixteen years of age met the defendant and began keeping company with him and had sexual intercourse with him. That in March, 1927, the defendant had intercourse with complaining witness and infected her with the disease of gonorrhea. That he got medicine for her and finally took her to Dr. Bolinger to-be treated by him. Other witnesses for the state testified that defendant admitted to them that he had exposed the prosecuting witness to this venereal disease, and that she had contracted such disease as a result of his exposing her to- same.

Defendant first contends that the information is insufficient to charge an offense under the laws of the state. Section 9008, C. O. S. 1921, reads as follows:

“Any person who shall, after becoming an infected person and before being discharged and pronounced cured by a reputable physician in writing, marry any other person, or expose any other person by the act of copulation or sexual intercourse to such venereal disease or to liability to contract the same, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for not less than one (1) year or not more than five (5) years.”

Under this section there may be any one of three offenses : First, the infected person may marry the other person ; second, the infected person may expose the other person by the act of copulation or sexual intercourse to’ such venereal disease; and, third, the infected person may expose another person to liability to contract such disease.

The information charges that the defendant exposed and communicated the venereal disease of gonorrhea and syphilis to the prosecuting witness. In the trial of the case the state elected to ask for a conviction upon the charge of exposing and communicating the disease of gonorrhea. While the word “communicate” is not a part of the statute, yet it would not be possible to communicate the disease of gonorrhea by sexual intercourse without exposing the infected person to such disease. The word “communicate” will be treated as surplusage.

The rule with regard to information is stated in Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Pope v. State, 24 Okla. Cr. 215, 217 Pac. 498.

Defendant next complains that the trial court erred in admitting incompetent testimony. There was incompetent testimony admitted by the trial court, but it is not of such a nature as would require a reversal of the case. The admission of incompetent evidence is not ground for reversal, unless it affirmatively appears from the record that the appellant was injured thereby. Byers v. Territory, 1 Okla. Cr. 698, 100 Pac. 261, 103 Pac. 532; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The evidence of the defendant was that the prosecuting witness was a woman of loose character. Several witnesses testified to continued acts of intercourse of the prosecuting witness with men other than the defendant. The doctor called by the defendant to treat the prosecuting witness testified that in 1927, when the defendant brought her to his office, she was suffering' with the disease of gonorrhea. That the next year the prosecuting witness came back, and an examination revealed that she was suffering with the disease of syphilis, and that doctor also testified that in his examination of the defendant he found that the defendant was not infected with the disease of syphilis.

While the evidence on the part of the state is sufficient to support a verdict of guilty, the character of the prosecuting witness, the manner in which the trial was conducted, and the errors complained of by the defendant, while not sufficient to require a reversal of the case, do require a modification of the sentence, in the furtherance of justice.

For the reasons stated, the punishment is reduced from five years in the penitentiary to one year in the penitentiary and, as modified, the cause is affirmed.

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


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    O. H. WORLEY v. STATE.
    No. A-7349.
    Opinion Filed Sept. 13, 1930.
    Rehearing Denied Nov. 19, 1930.
    (292 Pac. 1048.)
    E. B. Arnold, Roy Nance, and W. L. Chase, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The evidence of the state is that on the 26th day of April, 1928, a special election was held in the town of Stilwell, Okla., for the purpose of determining whether or not the electric light plant should be sold and the water system leased. Defendant was a member of one of the ward election boards and at about the time of closing the polls was engaged with another member of the board in counting the ballots; that while such counting of ballots was in progress the defendant took from his bosom about 25 unvoted- ballots and dropped them into the pile of ballots that had been regularly voted; and that thereafter he immediately went downstairs to the toilet and attempted to destroy the remainder of the unvoted -ballots by flushing, them through the toilet. That Mr. Etheridge, a member of the election board, discovered tbe intermingling of tbe ballots and followed defendant into tbe toilet and took therefrom some of tbe unvoted ballots. These were preserved and compared with the other ballots that bad been dropped into and intermingled with tbe regularly voted ballots. Tbe ballots that bad been intermingled were all practically alike, in that they were tom off smoothly and were all doubled together, while the legal ballots were torn in a jagged way and each folded separately. Tbe regularly voted ballots bad been stamped with an old stencil which made a splotch instead of a clear cross, while the false ballots had been stamped with a new stencil which made a clear cross.

The election officers refused to finish the count and to return and certify the vote, but placed all of the regular ballots and intermingled ballots with the other election paraphernalia in the election box, locked it, and returned it to the secretary of the county election board, and that the secretary kept such box safely until the officials could open the box and inspect the ballots contained therein.

Defendant was prosecuted under section 6295, C. O. S. 1921, which reads as follows:

“Destroying ballots. .Whoever on any day between the commencement of any general or primary election and the close of and canvass thereof, by the officers, fraudulently destroys any of the ballots given and received at said election, or takes away or abstracts from any ballot box any of the ballots so given or received, or puts into such box any ballots except such as are properly voted by electors, or in any manner Avillfully intermingles with the ballots which shall have been voted by the electors, any other ballots or tickets which shall not have been duly received by the election officers during the election, shall be punished by imprisonment in the state prison not less than one year nor more than three years.”

The charging part of the information reads as follows :

“That the said O. H. Worley on the day and year aforesaid, and in the county of Adair, state of Oklahoma, did then and there unlawfully, willfully, wrongfully, intentionally, fraudulently, corruptly and feloniously destroy election ballots regularly voted at a special election called and held in the town of Stilwell, and then and there intermingle ballots not voted and received in said election with regularly voted ballots therein, contrary to the form of the statute,” etc.

Defendant demurred to this information and as grounds therefore alleged:

“1. That said information does, not state sufficient facts to charge this defendant with the violation of the, laws of the state of Oklahoma.
“2. That if said information charges any offense against this defendant, that there are two separate and distinct offenses charged against this defendant.”

Upon the hearing had upon this demurrer, the state elected to stand upon the charge of “intermingling ballots which had been voted by the electors with other ballots which had not been duly received by the election officers,” and thereupon the court overruled the defendant’s demurrer and proceeded with the trial of the case.

The information is not a model one. Since the state elected to put the defendant on trial on the charge of intermingling ballots, the charge of destroying ballots could be, and no doubt was, treated by the court as surplusage, and the defendant was not injured thereby. The court in his instructions explicitly advised the jury that the only question to be considered by them was whether or not the defendant was guilty of intermingling ballots, as alleged in the information.

The defendant next contends that he did not have time to prepare for trial. The information was filed on September 29th, and on October 15th defendant filed his demurrer to the same. On the 18th day of October the demurrer was overruled and the case called for trial, at which time defendant objected to going to trial for the reason that he had not had the time required by law in which to' plead.

Section 2606, C O. S. 1921, is as follows:

“The only pleading on the part of the defendant is either a demurrer or a plea.”

Section 2610, C. O. S. 1921, is as follows:

“Upon the demurrer being filed, the objection pre■sented thereby must be heard, either immediately or at such time as the court may appoint.”

Section 2615, C. O. S. 1921, is as follows:

“If the demurrer be overruled, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may allow. If he does not plead, judgment may be pronounced against him.”

Section 2595, O. O. S. 1921, is as follows:

“If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.”

The record is silent as to the date when the defendant was arraigned, except the statement of the trial judge that he had been arraigned. The demurrer was filed on the 15th day of October. The case, being on the assignment docket, was called for trial on October 18, 1928, at which time the defendant raised the question that he had not had the statutory time in which to plead.

Under section 2595, supra, defendant was entitled to one day in which to plead. Under section 2606, when defendant is arraigned he may either demur or plead to the information. Nineteen days elapsed between the filing of the information and the trial of the case. At some time during this nineteen days and prior to October 15th, the defendant was arraigned. It not affirmatively appearing from the record • that sufficient time had not intervened between the arraignment and trial, we are unable to say that he was not given the necessary time to prepare for his trial.

On October 15th, defendant elected to demur to the information. The fact that the court did not pass upon the demurrer until the time set for the trial to begin did not deprive, the defendant of his statutory time to plead.

Defendant next contends that the court erred in admitting the testimony of the witness H. T. Williams, secretary of the county election board, for the reason that it does not appear that the ballot box was properly cared for after it had been delivered to the county election board. • There is no merit in this contention.

The errors of law complained of being without merit, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    S. A. HERREN et ux. v. STATE.
    No. A-7523.
    Opinion Filed Nov. 22, 1930.
    (293 Pac. 276.)

      John L. Hodge, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county of the crime of unlawful possession of intoxicating liquor, and each of their punishments fixed by the jury at a fine of $100 and imprisonment in the county jail for BO days.

Since the filing of the appeal in this case, the defendant S. A. Herren has died, and the case as to him is therefore abated.

The evidence of the state was that they had two search warrants, one for the filling station and one for the private residence of the defendants. Two of the officers went to the residence with the warrant for a search of the residence, and found the defendant Mrs. S. A. Herren pouring whisky from half-gallon jars into the bowl of the toilet in the bathroom; that one of the officers looked through the window in the bathroom and saw her pour the contents of three half-gallon jars into the bowl of the toilet; that later a child opened the door and the other officer on going into the toilet handed a copy of the search warrant to Mrs. Herren and seized the jar which she was pouring ont, which contained about one-half pint of whis-ky; that they found a number of half-gallon jars smelling of whisky on the floor in the bathroom.

Mrs. Herren testifying at. the trial denied that she had poured out any whisky, but said she was washing, empty jars her husband had bought from children who had brought them to the filling station. This evidence was sufficient to authorize the' jury to return a verdict of guilty.

The defendant moved to suppress the evidence because it was unlawful to search a private residence. On the hearing of this motion, the defendant introduced a copy of the affidavit to search the residence and a copy of the warrant with the return thereon. An examination of the affidavit and search warrant discloses that they are in proper form and sufficient under the law to authorize the search of defendant’s premises.

Defendant next contends that the jury was improperly impaneled, because the court did not require the state to exercise its peremptory challenges alternately with the defendant, or waive the same.

We are unable to tell from the record just what did occur, but there is nothing in the record to indicate that the defendant was prevented from having a fair and impartial jury, and no complaint made that the jury so obtained were biased and prejudiced against the defendant, nor that defendant was denied a fair trial by such jury. Since no injury or prejudice is claimed by the defendant by reason of the claimed irregularity in the exercise of the challenges, the irregularity complained of is insufficient to require a reversal of the case.

Defendant next contends that tbe search was illegal, for the reason that the warrant directed the officers executing' the same to make return thereof within 10 days, instead of the three days provided by section 7009, C. O. S. 1921.

The record discloses that the warrant was issued on the 22d day of February, 1929, and served and returned on the same day. Under section 7009, supra, the service and return must be within three days from the date of the issuance of the warrant. The service of the warrant after three days would have been void and the evidence inadmissible, but, since the service was made within three days, the fact that the warrant purported to authorize its service within ten days was an irregularity which would not render the warrant void, nor prevent its legal service within three days.

Defendant complains of other errors, but, there being nothing in the record to support such claims, they present no question for this court.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed as to Mrs. S. A. Herren.

It appearing to the court that the defendant S. A. Herren is now dead, the cause is abated as to him.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    JOHN SHERWOOD v. STATE.
    No. A-7718.
    Opinion Filed Nov. 22, 1930.
    (293 Pac. 270.)
    John W. Whipple, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment' in the county jail for 30 days.

The evidence of the state was that the officers, having a search warrant, went to the home of the defendant, and upon searching the premises found a half gallon of whisky sitting on the dining room table, some empty bottles, 'and some empty jars with the smell of liquor coming from them; that before the search was completed the defendant disappeared, and they were unable to find and arrest him until several days later.

Defendant admitted that th.e officers found the whis-ky in his home, but claimed it belonged to one Ed. Brum-mett, who was there at defendant’s house at the time the raid was made.

Defendant contends, first, that the court erred in admitting the empty bottles and jars, since tbe defendant was only charged with possession of intoxicating liquor with intent to sell the same.

The bottles and jars, being found at the same time and in the same search, were properly admitted in evidence for the purpose of aiding in establishing the intent of the defendant.

The defendant makes the further contention that the evidence is insufficient to support the verdict of the jury.

This contention is without merit. The records of this court disclose that the defendant is an old offender. The state should have prosecuted this case as a felony under section 6991, C. O. S. 1921.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without any merit, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


author: EDWARDS, P. J.

text:
    LUTHER DITMORE v. STATE.
    No. A-7506.
    Opinion Filed Nov. 29, 1930.
    (293 Pac. 581.)

      J. I. Howard, Wm. S. Hamilton, Edward C. Gross, J. Q. A. Harrod, Laynie W. Harrod, and P. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., and A. J. Morris, Co. Atty., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county on a charge of murder, and his punishment fixed at life imprisonment. The case was closely tried, and is well briefed by able counsel for both the state and the defendant.

Defendant was charged with the murder of Ted Fisher. The evidence shows a state of facts about as follows: Defendant, a married man 40 years of age, was living with his ivife in the town of Hinton. Deceased was a young man, some 22 or 23 years old and for some time had been a close friend of defendant and his wife, frequently visiting at their home. On the evening of the homicide, several visitors, including deceased, were at defendant’s home. All left except deceased, and both defendant and deceased drank intoxicants. Later in the evening, defendant went away from his home for a short time, and when he returned he assaulted and killed deceased, beating* and stomping him to death in a brutal manner. The theory of the state is that the killing was for revenge, because deceased had told the wife of defendant of his misconduct with other women. In support of the state’s theory, there was the further evidence of the position of the body of deceased. See Ex parte Ditmore, 42 Okla. Cr. 111, 274 Pac. 697. Defendant admitted the homicide, but testified that, Avhen he returned home after a short absence, he found Fisher attempting to' have sexual intercourse with his wife; that he immediately went to her assistance, and was attacked by deceased with a knife, and he killed him in his necessary self-defense; further that his reason was dethroned, and he was temporarily insane after the first blow. His testimony on this point is:

“Q. When you entered, did you finally get into the bedroom? A. Yes, sir. As I entered the bedroom he reached up—
“Q. Who? A. Ted Fisher. That is the first I was positive that it was him. He reached up on the edge of this bed in such a position on the edge of the bed with a butcher knife in his hand and at the same time I hit him in the face.
“Q. Do you recall what the nature of the fight was or extent or how long it continued: A. No, sir; I do not.
“Q. What is the next thing you know about it? A. The next thing I remember was I was standing in the floor looking at him. He was lying down there all beat up. * * *
“Q. I don’t know whether you understood the question or not. In other words, did it appear to you he was making an effort to have intercourse with your wife? A. Absolutely was; he'was right on top of her; right in between her legs.
“Q. Could you tell whether or not your wife was making any effort to prevent it? A. Well, her body was straightened out on the bed, out on the square like that (indicating), and as far as I see I didn’t stay at the window and look through the door half a day to see what was going on. When I seen a man on top of my wife on the bed looking to me like trying to have sexual intercourse with her I went around the house and into the room and as soon as I entered the room or about this middle door he reared up in the position I told you.”

On cross-examination, he testified:

“Q. Now ¡just tell the jury what they were doing— was he trying to rape her or was he having sexual intercourse with her? A. I can’t tell. I didn’t stay there to see or look half an hour to see whether he was having intercourse with her or raping her, but he was in between the woman’s legs and I couldn’t see what she was doing herself over him. He had her practically covered up. I don’t know whether he was trying to> rape her or what he was doing. I couldn’t say as to that part of it. * * *”

This testimony leaves it in doubt whether (following the theory of the defense) he believed his wife was being attacked or was immoral, seemingly the latter.

The first contention made is that the eonrt erred in denying defendant a change of venue. The. application sets out that great feeling was aroused by the homicide in the town of Hinton and surrounding community; a mass! meeting was held and funds raised to employ counsel to assist in the prosecution. This is supported by articles from the newspapers at Hinton, Binger, and Anadarko, giving accounts of the homicide and of the denying defendant bail. The state met this by a substantial coun-tershowing. Caddo county is one of the large counties of the state, being some 40 miles long from north to south. Hinton, the scene of the homicide, is near the north end of the county. Without discussing this assignment, we are of the opinion that a fair jury was had and there was no abuse of discretion in denying a change of venue. Williams v. State, 19 Okla. Cr. 307, 199 Pac. 400; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971.

Complaint is made of the ruling of the court on various questions of law arising during the trial. This assignment, among other things, is directed to statements of counsel made in the presence of the jury. One such items is as follows: A witness, Padgett, on the stand in rebuttal, was asked by counsel for defendant on cross-examination, in substance; if he did not testify to a certain state of facts when on the stand in the first instance and after talking to counsel for the state when recalled testified to a different state of facts. Mr. Morris, special counsel for the state, said: “That is objectionable in the first place and it is absolutely false. The record is right here and shows just what his testimony was in there.” Counsel for defendant then stated he would introduce the record of the testimony for the purpose of showing conflict. An objection to this was sustained. Both counsel for defendant and for the state erred. If the witness contra-dieted bis testimony on a material matter, a predicate for impeachment should be iaid by calling attention to his former testimony, and then, if material, by introducing the record to impeach, not by stating his conclusion of the substance of the testimony on the particular point. On the other hand, counsel in objecting should not inject his opinion that the statement of the testimony is false. No formal offer of the contradictory statement of the witness was made. There is no substantial merit on this point. Under this assignment it is also urged that the names of two witnesses were not indorsed on the information and served two' days before the beginning of the trial. No objection was made at the time these witnesses were called, but after they had testified counsel for defendant moved to strike out the testimony for the reason the names were not indorsed. The state admitted the names had not been served, but said opposing counsel were informed what they would testify, which was admitted. The failure to object to the witnesses when called was a waiver of the right to have the names served. The ruling of the court was not error. There are other matters covered by this assignment.

It is next argued that the court erred in permitting the state to introduce incompetent evidence prejudicial to defendant. This assignment is directed to testimony of statements of the wife of defendant to other persons concerning acts of defendant and to testimony of defendant’s association with women other than his wife. These different matters are not separated, the argument is to the whole, in that it tends to establish defendant’s guilt of other offenses. It is fundamental that a defendant may not be convicted of one crime by proving him guilty of another and independent offense. This rule excludes all evidence of collateral facts which are incapable of offering a reasonable presumption or a logical inference as to tlie principal matter or fact in dispute. If an analysis of the record discloses the admission of evidence of other independent offenses, which may have influenced the verdict and which do not fall within some exception to this rule of evidence, the case should be reversed. The rule stated, however, must be considered with the equally well-settled rule that evidence material to the issues involved in the case on trial is not rendered incompetent merely because it may tend to prove a defendant guilty of another offense. The testimony complained of was brought out on cross-examination and by way of rebuttal. It related to immoral acts and conduct of defendant just prior to and about the time of the homicide.

The defense is dual; self-defense and temporary dethronement of reason or temporary insanity. It has been held by this court that, where a defendant interposes the plea of temporary insanity in a homicide case alleged to be brought about by the claimed intimacy of his wife with another man, the state may show in rebuttal that defendant at about the same time also had been guilty of moral delinquency, as tending to show the condition of his mind and to rebut the inference that the mental shock or strain was sufficiently great to unseat his reason. Tingley v. State, 16 Okla. Cr. 639, 194 Pac. 599; Coffeen v. State, 22 Okla. Cr. 212, 210 Pac. 288; Tapedo v. State, 34 Okla. Cr. 165, 245 Pac. 897. Under this view a part of the evidence was admissible.

A further part of the evidence complained of was admitted for the purpose of proving motive. The testimony of defendant gave his motive for slaying deceased as above set out. The testimony of the wife of defendant tends strongly to corroborate him as to motive. If the slaying was for the reason claimed by defendant, that is, to protect bis wife from criminal assault or' in self-defense or on account of emotional insanity, defendant was not guilty. The motive tben becomes the vital question in the case. The state by cross-examination and in rebuttal met this testimony of defendant and his wife by evidence tending to show that the real motive which prompted defendant to kill deceased was the fact that deceased knew of defendant’s association with immoral women and had disclosed that fact to defendant’s wife or to Maude Stewart, an associate of defendant’s wife, who in turn had informed her; that defendant received the information and this resulted in a difficulty between defendant and his wife and resulted in his slaying deceased. The state had the right to rebut the defendant’s explanation of his motive, even though in doing so the evidence to rebut might incidentally show the defendant guilty of some other offense. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418; Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971. The cross-examination was within the rule laid down in the case of Gibbons v. State, 34 Okla. Cr. 407, 246 Pac. 1107.

Argument is also made to some other assignments of error but they are not of sufficient importance to call for special discussion. The court erred in permitting testimony to go> too much in detail as to the conduct of defendant tending to show immorality about the time of the homicide. This character of evidence should not be permitted beyond the strict purpose of rebutting the claim of emotional insanity or of sho wing motive. The court by instruction 15 so limited the purpose for which this evidence was admitted. No exception was admitted. No exception was taken to' any instruction given, nor was any request for additional instruction made. Where evidence of this kind is admitted, it must be limited to that particular purpose; otherwise it may result in the trial of collateral issues tending to> prejudice the jury against defendant. The irregularity here, however, is not serious. It is not at all probable it had any effect upon the result of the trial. Upon a consideration of the entire record, we find no error substantially prejudicial to the rights of defendant.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    J. W. HUGHES v. STATE.
    No. A-7596.
    Opinion Filed Nov. 29, 1930.
    (293 Pac. 1108.)
    W. B. Garrett, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of manufacturing intoxicating liquor and his punishment fixed at a fine of $50 and imprisonment for a term of 30 days in the county jail.

This case must be reversed for several reasons. The search warrant under which the evidence was obtained was a blanket Avarrant. It directs the search of the southeast quarter of section 15, township 5 north, range 22 west, a quarter section of land. The record discloses that there were four houses and a negro shack on this tract of land. The four houses were occupied by white families, each in a separate house. Section 7012, Comp. St. 1921, requires that the affidavit shall describe as particularly as may be the place to be searched. In conformity to this statute, this court has held that the search warrant must describe the place with such particularity that the officer to whom it is directed may determine it from the warrant and that no discretion as to the place to be searched is left to the officer. Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376. A blanket warrant to search several different places or houses is a violation of the statute. Cornelius on Search and Seizure, § 129.

The record discloses that the officers making the search found a ten-gallon jar and a five or six gallon jar containing “home-brew.” It is not clearly shown that the brew was intoxicating, or that it contained more than one-half of one per cent, of alcohol measured by volume, or that it was capable of being used as a beverage. An excerpt from the testimony for the state is as follows. Mr. Rude testified:

“* ■■ '* A. Well, we looked around the house and in the house, in the dugout, around the chicken houses and different places, and we found in the house, under the table in the dining room, two jars of what I called home-brew. * * *
“Q. What was in those jars, Mr. Rude? A. Well, it was brew. * * *
“Q. I will ask you if home-brew is beer? A. We call it beer. * * *
“Q. I will ask you if that was intoxicating liquor? A. Well, I figure — (Objection) A. My opinion is — (Objection) A. This hadn't fermented very much when we was there. It wasn’t what they call ripe.
“Q. Would you say if you drank a sufficient amount of it, it would intoxicate you? A. That is my opinion. * *

Then upon being closely pressed by the state and assisted by the court, the witness said:

“* * * Q. Would you say it was capable of being used as a beverage? A. Yes, sir, I think so. * * *
“Q. I will ask you if it wasn’t in a state of just be-, ginning to work? A. Just beginning to work a little.”

Then on cross-examination he said:

“Q. As a matter of fact at the time you tasted it, it wasn’t ready for use as a beverage? A. Not as regular beer, I wouldn’t judge.
“Q. Not as regular beer, just some sort of sweet syrup? A. Just beginning to taste a little bad.
“Q. At that time it wasn’t ready and capable of being used as a beverage? A. That is my judgment.
“Q. It had just started to working and you couldn’t tell at that time how strong it was? A. Yes, sir, that is my judgment, it had just began to ferment.”

None of the other witnesses particularly strengthened the testimony upon this point.

In the course of the trial the trial judge several times interrupted the proceedings to state his opinion of the law and the Constitution, and other matters, which may have had a tendency to influence the jury in returning as they did a verdict of guilty. The evidence is not sufficient to sustain the judgment.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    DOC WALLACE v. STATE.
    No. A-7644.
    Opinion Filed Nov. 29, 1930.
    Rehearing Denied Dec. 6, 1930.
    (293 Pac. 276.)
    Clay Snodgrass, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Jackson county on a charge of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of $75 and imprisonment in the county jail for a period of 30 days.

The judgment was entered on the 3d day of July, 1929, and the record for appeal was lodged in this court on the 12th day of November, 1929. An appeal from a conviction for a misdemeanor must be filed in this court in 60 days, unless the court makes proper orders of extension, not exceeding 60 days’ additional time. The case-made contains no- order of the trial court fixing any time to make and serve case-made.

On the 9th day of September, 1929, the trial court made an order extending the time to make and serve case-made for 30 days, which time expired on the 9th day of October, 1929. On the 10th day of October, 1929, the court made a further order extending the time to make and serve case-made for 10 days, which time expired on the 19th day of October, 1929. In neither of these orders did the court make any order extending the time to file the appeal in this case.

The case-made was served on the county attorney on the 21st day of October, 1929, settled and signed by the county judge on the 6th day of November, 1929, and certified by the clerk as true and correct on the 9th day of November, 1929.

This appeal will have to- be dismissed for two reasons: First, because no proper orders were ever made by the trial court to authorize the making and serving’ of the case-made, and because the same was not signed and settled in the time provided by law; and, second, because the appeal was not filed in this court until 132 days after the judgment was entered.

For the reasons stated, the appeal is dismissed.

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


text:
    L. R. WILLIAMS v. STATE.

      No. A-7324.
    Opinion Filed Nov. 15, 1930.
    Rehearing Denied Dec. 6, 1930.
    (293 Pac. 564.)

      John T. Harley, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and his punishment fixed by the court at life imprisonment in the state penitentiary.

The evidence of.the state was that on the 15th day of July, 1928, the defendant and one McCandless entered a room in the Tulsa Hotel occupied by J. T. Whitlock and S. J. Eussell, and, covering them with a revolver, bound and gagged them and robbed them of diamonds, watches, and money of the aggregate value of $2,089. Defendant was positively identified by both Whitlock and Eussell The defense was an alibi.

The defendant contends, first, that the case should be reversed because the court admitted incompetent and prejudicial hearsay evidence.

An examination of the record reveals that the county attorney in his opening statement told the jury that the state would introduce certain extrajudicial identifications, which would have been incompetent as hearsay. In the trial of the case, on objection of defendant, the state was not permitted to introduce any of this evidence, but the defendant, in his cross-examination of the state’s witnesses, brought this evidence out. The evidence of extrajudicial identification was inadmissible when offered by the state, and the admission of the same has been held to be reversible error. Robbins v. State, 39 Okla. Cr. 289, 264 Pac. 841; Johnson v. State, 44 Okla. Cr. 113, 279 Pac. 933.

All of this incompetent and extrajudicial identification having been brought out by the defendant on cross-examination, he is in no position to complain and will not be heard to say that he was injured thereby.

The defendant next contends that prejudicial error was committed by the county attorney in his opening statement, in that the county attorney told the jury that certain extrajudicial identifications would be offered in evidence.

No exceptions were saved to the remarks of the county attorney, and no motion to exclude the same from the jury was made. Under the holdings of this court, the record presents no question for this court to pass upon. Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441; Bone v. State, 43 Okla. Cr. 360, 279 Pac. 363.

The defendant next argues that the punishment inflicted is excessive. It appears that the defendant and his codefendant, McCandless, had been represented by John L. Ward, an attorney of Tulsa, up to and including the time at which the case was called for trial. This attorney asked for a severance for McCandless, which was granted. It then became necessary, on account of the poverty of the defendant, for the court to appoint counsel for him. This counsel was selected by the court less than one hour before the case was called for trial. The defendant was charged with a capital offense. The counsel selected was practically without experience in criminal cases. He was supported in tbe trial by a seasoned attorney, wbo bad not defended in a criminal case for 25 years. When all tbe circumstances are considered, counsel made a good defense, but erred in cross-examination of tbe state’s witnesses and in not saving exceptions to tbe argument of tbt; county attorney.

Under all tbe facts and circumstances in the case, tbe punishment assessed by the court appears to be excessive.

Por tbe reasons stated, tbe punishment is reduced from life imprisonment to 25 years’ imprisonment, and, as modified, is affirmed.

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


text:
    LEE THORNTON v. STATE.
    No. A-7654.
    Opinion Filed Nov. 22, 1930.
    Rehearing Denied Dec. 6, 1930.
    (293 Pac. 585.)
    James A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Osage county of tbe crime of arson, and his punishment fixed by tbe jury at imprisonment in tbe state penitentiary for five years.

Defendant was charged in tbe district court of Osage county with tbe crime of burglary of the home of Frank Chandler and upon conviction filed his appeal therefrom in this court, said case being A-7653, 49 Okla. Cr.— , 293 Pac. 583, which case was recently affirmed by this court. The defendant was also charged in the district court of Osage county with the crime of arson in the burning of the dwelling house owned by Luke Buffield and occupied by Frank Chandler, which crime of arson was committed evidently to cover up the burglary.

The same questions are raised in this case as were raised in A-7653, and what was there said as to the law and the facts of the case are applicable in this case. Defendant did not take the witness stand and offered no testimony.

The evidence being sufficient to support the verdict of the jury and no material error appearing, upon the record, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.