text:
    CHESTER L. BARRETT v. STATE.
    No. A-8873.
    July 19, 1935.

      (47 Pac. [2d] 613.)
    Roy T. Wildman, Arthur Fitzpatrick, and Don Anderson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. (Frank B. Appleman, of counsel), for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder, and his punishment assessed at death in the electric chair.

Dr. P. K. Lewis, testifying on behalf of the state, stated:

“I am a regular practicing physician and surgeon; I know the defendant; was called to the Barrett home the evening of May 3, 1934; the defendant, his wife, and six or seven children were suffering from convulsions; I treated Betty Joy Barrett and Mary Katherine Barrett; Betty Joy and Mary Katherine are now dead; the cause of their death was strychnine poison; I was the first doctor to arrive, reaching the Barrett home about 8 o’clock in the evening; Dr. McCallum and Dr. Schwabb came later.”

Dr. C. L. McCallum, testifying, stated:

“I am a physician and surgeon of Sapulpa; I know the defendant; was called to his home about 9 o’clock the evening of. May 3, 1934; when I arrived there the defendant, his wife, and defendant’s family were there; I took charge of and treated Wanda Marie Barrett, one of the six children; she died of strychnine poisoning on the way to the hospital; I did not treat any other member of the family.”

Fred E. Hopkins, testifying on behalf of the state, stated:

“I know the defendant; on April 16, 1934, I wrote the defendant’s application for a family group insurance, and received a premium therefor.”

On cross-examination witness stated:

“On the family group of insurance on a family of ten, in the amount of $1,000, it would pay on the death of the first member one-tenth of $1,000, on the second death one-ninth of $1,000, on the third death one-eighth of $1,000, and so on, regardless of which member of the family died. The defendant wanted himself made the beneficiary in said policy.”

And, on redirect examination witness stated the defendant was named as beneficiary; if any member of tbe family died, tbe defendant would receive tbe insurance.

Hannab Johnson testified in substance as follows :

“I am 19 years old; bave lived in Sapulpa seven years; bave known tbe defendant three years; I thought tbe defendant was married and separated from bis wife; tbe defendant has professed to love me and said be would marry me as soon as be was divorced from bis wife; I bave bad sexual relation with him; in November, 1932, I discovered I was pregnant, and on August 21, 1933, I gave birth to a child; tbe defendant was tbe father of that child; tbe defendant bore part of tbe expense of my confinement, and would send me a little money occasionally; defendant wrote me letters. On April-4, 1934, defendant gave me a letter addressed to Mary Ellen Johnson Barrett.”

Tbe letter was identified by tbe witness.

Willis C. Strange, testifying for tbe state, stated:

“I was sheriff of Creek county, Okla., on May 3 and 4, 1934; I know tbe defendant; on May 4, 1934, I brought the defendant to tbe county attorney’s office; J. O. Edwards, chief of police of Sapulpa, Lee Snyder, deputy sheriff of Creek county, Bendena Hardy, and Sabe Christian, county attorney of Creek county, were present. The defendant was advised of his rights under tbe law, and made a statement in writing, which was taken down and transcribed by a reporter.”

Witness Strange identified tbe statement which was marked Exhibit A, as being tbe statement made by tbe defendant, in tbe presence of tbe parties named in bis testimony. Lee Snyder and J. O. Edwards testified in substance to tbe same as tbe witness Strange.

Mary Mizer, testifying for tbe state, stated:

“I bave lived in Sapulpa for twelve years; I know tbe defendant and Hannab Johnson; Hannab Johnson came to my bouse on the 3d day of August, 1933, she was pregnant and stayed at my house and was delivered of a child; the defendant would often call upon Hannah Johnson Avhile at my house; altogether the defendant paid $18 for Hannah Johnson; after the birth of the child Chester told Hannah that he loved her and was going to- marry her.”

A letter was introduced in evidence, written by the defendant to Hannah Johnson, dated April 29,1934, in which among- other things mentioned the defendant declared he loved Hannah Johnson and referred to when Cora leaves. Another letter written by the defendant to Mary Ellen . Johnson Barrett, on April 4, 1934, was also introduced.

The statement made by the defendant in the office of the county attorney, on May 4, 1934, was introduced, in which, amongst other things, the defendant states:

“My name is Chester L. Barrett; I am 35 years old; knew I did not have to make a statement, that anything I said might be used against me”; that he made this statement voluntarily; that his wife’s name was Cora Lucile; that he had been married since November 1, 1920; had lived in Sapulpa for a year, working at odd jobs. The defendant gave the names of the members of his family, and stated that three of the children were dead, Betty Joy, Mary Katherine, and Wanda Marie; they died the night of May 3,1934, about 8 or 9 o’clock.
“Last Monday night I thought if we could all go- to sleep and not wake up God would forgive me; I began to wondering, what to do and to find some easy way for us all to go out easy; I did not talk this matter over with my wife; she did not kno w my plans. On Monday I went to the creamery and got two gallon of sweet milk, about four or five o’clock in the evening- I put a hand full of arsenate of lead in it; I bought the arsenate of lead at Wills-May last year for potato bugs; when I put the arsenate of lead in the milk my wife was in the front room attending to the baby; when supper time came my wife cooked some cornbread ; my wife poured us all a glass of milk — I drank two or three glasses — I wanted to^ die at that time; my idea was I wanted to kill all of my children, my wife and myself; no one died from the effects of that poison.”

The witness further stated:

“At the time I put the arsenate of lead in the milk I did not know I still had the strychnine capsules at the house; I had not thought of them; I was. looking through to see what would take its right quick and found this strychnine in a cupboard, Wednesday; it had been bought about a year and seven or eight months ago to kill ra.ts with; I had no idea of poisoning my family when I bought it; when I found the strychnine I went down and bought some quinine at the Plymouth Drug Store. The reason I did not carry out my plans on May 2nd was I loved my children so much I could not bear it, they were all playing around me after supper and I could not get up the heart to do it.
“On the 3d day of May I decided to carry out my plans; we did not have any money to buy groceries and I did not know what we were going to do; after supper, when I decided to fix the capsules, it was about 7 or 7:30, a little bit before dark; there were eight capsules, I fixed them so there would be enough for all of us; I mixed the poison with a case knife, and fixed eight little capsules and two big ones; they all had bad.colds and my wife was going to give them castor oil, and I said to give them some quinine to clear their heads, I did not think they would be there in the morning to take the castor oil; I told them it was quinine I was giving them; no one saw me when I mixed the capsules; no one knew what it was except me, my idea was to kill myself, my Avife and our children, the entire family. It was five or six minutes after the capsules were taken before Betty Joy gut sick; she was the first one that died; she died in ten or twelve minutes; Mary Katherine was the next one to die; I was holding Dorothy’s head and it struck me in the stomach, spine and head; I went to a neighbor’s house and. called the doctor, they were suffering so.”

Further on defendant stated he wanted to tell the truth about how it happened.

The defendant, testifying in his own behalf, stated where he was born and the different places he had lived before coming to' Sapulpa, and further stated that he did not have any property, and was out of employment excepting for odd jobs at the time of the alleged commission of the offense charged against him. Many questions were propounded to the defendant as to his physical condition, his financial condition, and as to whether or not the family had sufficient food. The witness then stated he was brought to the courthouse the next morning after the death of his children, and gave the names of the persons present in the county attorney’s office when he was taken to the office; he did not remember signing a paper that morning:

“I was sick; I remember what they talked to me about; they asked me what had taken place the night before at our home; I was frightened at the time; I don’t remember what caused me to be frightened.”

The defendant was then asked when he first met Hannah Johnson and he replied he could not state the exact day or month, he did not remember whether it was 1931 or 1932: “I met her at her home and commenced going with her, taking her out to different places;” he had a wife and seven children at that time; “it was in February, 1929, I met Hannah Johnson; I went with her about a year and a half; in April of this year I took her out to- Moccasin Tracks addition one Sunday afternoon and read her a letter I had written Mary Ellen; the letter was in my handwriting ; all this time I was worried beause I was not able to support my wife and children; for the last eighteen months I had been supporting Mary Ellen and Hannah; I had sent the baby some milk each day; I had paid for Hannah’s confinement at Mary Mizers, amounting to |18; I took the $18 away from my wife and children and gave it to Hannah; at that time my wife had eight children. In the letter I said I was worrying about my darling Mary Ellen and her sweet loving mother and was worrying myself to death about her; I do not know what I meant by the statement in the letter that I will be free by the 20th of this month, or I will be free by the 20th or last of this month. I do not know what I meant by the use of the language, if she don’t come to me then I don’t know that I am strong enough to go on trying to' live.”

It is not deemed necessary to set out all of the testimony of the defendant, or all of the statements made by him in the county attorney’s office as it would lengthen this opinion further than is necessary. Some testimony was introduced by the defendant tending to show he was not just right mentally, but the verdict of the jury indicates the jury thought that he was sane and realized the consequences of his acts.

Several errors have been assigned by the defendant as grounds for reversal of this case. The only errors it is deemed necessary to consider are the fifth, sixth, and seventh assignments, which are as follows:

“The verdict of the jury is not supported by the evidence.
“The verdict of the jury is contrary to the law and the evidence.
“The court erred in overruling the motion for a new trial.”

The defendant in his brief argues only the question of the insufficiency of the evidence, and earnestly insists that the state failed to prove the corpus delicti. In presenting his argument that a conviction cannot be had upon the defendant’s extra judicial confession alone, unless the state in some way proves the corpus delicti independent of the defendant’s confession, the defendant cites Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287, Boyle v. State, 27 Okla. Cr. 196, 226 Pac. 389, and many other cases in support of his contention that the extra judicial confession is not sufficient to prove the corpus de-licti; that there must be other proof positive or circumstantial connecting the defendant with the killing.

The defendant admits the evidence is sufficient to show the corpus of the crime, but insists that it is insufficient to show his connection with the crime and urges that there is no positive proof that he administered the strychnine that caused the death of Betty Joy Barrett.

The question to be determined by this court is whether thei’e is testimony, direct or circumstantial, to show the defendant was responsible for the death of Betty Joy Barrett by administering to her strychnine independent of his extra judicial confession. If there is not, then the evidence on behalf of the state is insufficient to sustain the conviction, but, on the other hand, if the direct or circumstantial evidence, independent of the extra judicial confession, is sufficient to connect the defendant with administering the strychnine, the evidence is sufficient to sustain the conviction.

As disclosed by the record, the defendant was a man in ordinary circumstances, and had a wife and seven children in 1931, when he met Hannah Johnson, then a girl of about 16 years of age; that he became infatuated with her, kept company with her, cohabited with her, and that she gave birth to a child of which defendant admits he was the father; he continued, as shown by the record, to keep company with Hannah Johnson and contributed money to pay for her confinement and after the child was born contributed some to the support of Hannah and the child; that he wrote loving and endearing letters to Hannah Johnson and spoke of what he would do “when Cora leaves,” Cora being the lawful wife of the defendant; he also stated in some of the letters that he would be free about a certain date. In his testimony he states he did not know what he meant when he used the expression, “when Cora leaves,” and that he would be free about a certain date. The defendant further states that he does not know what took place and what statement he made at the county attorney’s office the day following the death of his three children. In his testimony he admits his relationship with Hannah Johnson and the writing of some of the letters. •

The record further shows that a short time before the death of Betty Joy, and other members of defendant’s family, and the illness of the others, that he applied to Fred E. Hopkins for an insurance policy of $1,000 and had himself named beneficiary in the policy, which policy in substance provided that upon the death of the first member one-tenth of the amount would be paid, and graduated down upon the death of any member of the family, and if the death of all of them occurred, the entire amount of $1,-000 would be paid.

In Choate v. State, supra, cited by the defendant in his brief, this court in the first paragraph of the syllabus, (b), in part said:

“To prove the corpus delicti is a simple matter. If a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant’s confession, establishes the corpus delicti in a murder case.”

In Frye et al. v. State, 25 Okla. Cr. 273, 219 Pac. 722, 721, the court said:

“The claim that the corpus delicti was not proven, obviously is without merit. The ‘corpus delicti’ means, primarily, ‘the body of the offense’; but in applying it, courts and text-writers have not at all times agreed as to what is meant by the ‘body of the offense.’ This court holds that the term means, when applied to any particular offense, that the particular crime charged has actually been committed by some one. Green v. State, 7 Okla. Cr. 191, 122 Pac. 1108; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.
“Direct evidence to establish the corpus delicti is not required. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense. The same evidence which tends to prove one may also1 tend to prove the other, so1 that the commission of the crime and the guilt of the accused may stand together inseparable on one foundation of circumstantial evidence. George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 P. 16.”

Direct evidence to establish the corpus delicti is not required. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense, the same evidence which tends to prove one issue tends to prove the other, so the commission of the crime may stand together inseparable on one foundation of circumstantial evidence.

It is not disputed that defendant was infatuated with Hannah Johnson; had been keeping her illicitly for years; he begun keeping her when she was about 16 years of age, seduced her, and she gave birth to a baby, and continued to visit her up until the tragic death of Betty Joy, his daughter. This illicit relation with Hannah Johnson and the infatuation for her caused the defendant to assist in supporting her, taking from his family things they needed for support, is sufficient circumstantial evidence to warrant this court in holding that this defendant disregarded his marital relation and his paternal affection for his children, and sought to destroy them in order that he might be free to go with Hannah Johnson. The only logical position with safety to society and sanctity of the home that the court can assume is that the corpus delicti in such cases as this may be proven by circumstantial evidence. The relations existing between the defendant and Hannah Johnson furnished the motive on the part of the defendant for the crime committed. Where the husband is untrue to his marital relations, the entire history of the human race shows that there is no crime he will not commit in order that he may gratify his illicit love. All of the circumstances in this case point with unerring certainty to the guilt of the defendant, and conclusively establishes the corpus delicti in this case.

In Edwards v. State, 46 Okla Cr. 77, 288 Pac. 359, the record shows the defendant had illicit relations with the wife of the deceased; that there was a $2,000 insurance policy on the deceased and the wife of the deceased was the beneficiary. There was no proof outside of the facts stated except the confession made by defendant which he repudiated at the trial. In paragraph 1 of the syllabus, the court said:

“Where a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant’s confession, establishes the corpus delicti in a murder case.”

In the opinion the court further said that the jury should be instructed by the court, if they found from the evidence that the confession was a voluntary one, then they might consider it together with all the other evidence in the case in determining the guilt or innocence of the defendant. When the facts and circumstances in evidence in the case at bar are considered in connection with the extra judicial confession, we hold they are sufficient to support a verdict of guilty. The defendant’s illicit love for Hannah Johnson, and his letters written to her are the motives behind the crime and are circumstances unanswerable that the defendant administered the strychnine that took the life of Betty Joy Barrett. The defendant was present at the time the strychnine was administered.

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

The original time for the execution having passed during the pending of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Creek county be carried out by electrocution of the defendant, on the 20th day of September, 1935.

EDWARDS and DOYLE, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    J. M. GREENWOOD v. STATE.
    No. A-8837.
    July 19, 1935.
    (47 Pac. [2d] 885.)
    J. R. Charlton and E. E. Heyl, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted of embezzlement in the district court of Washington county and was sentenced to serve three years in the state penitentiary and to pay a fine of |300.

Defendant entered into a contract with the county commissioners by which he was to collect delinquent personal taxes. The evidence is that he collected moneys for such taxes for which he- failed to account. The information is. sufficiently broad to cover an embezzlement by an individual, and the instructions also sufficiently broad. Defendant did not take the stand and offered no testimony.

Defendant contends that since the office of delinquent personal tax collector, as provided for in chapter 36, Sess. Laws 1925, bad been abolished because such act bad been declared unconstitutional, State ex. rel. Ledbetter, Sheriff, v. Pitts, County Treasurer, 137 Okla. 59, 277 Pac. 918, be could not be charged with the embezzlement of funds collected while acting as such purported officer. In the case of State, etc., v. Pitts, etc., above cited, the Supreme Court held a. part of section 1, chapter 36, act of the Legislature 1925, unconstitutional and the entire amendment inoperative. This, however, does not affect section 7761, Okla. Stat. 1931, upon which the prosecution in this case is based. It may be that the county commissioners did not have the authority to make the contract in question with defendant, but since they did make such contract, and under it defendant collected moneys for the county in payment of delinquent personal taxes, he will not be permitted to embezzle such moneys, and then say he was without authority to make the collection. The contract with the county commissioners would constitute color of authority for his acts in collecting, and he is bound to account for the moneys collected. This rule has been several times announced by this court. Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186; Lowdermilk v. State, 11 Okla. Cr. 281, 145 Pac. 1110. This court in Waldock v. State, 42 Okla. Cr. 331, 276 Pac. 509, held:

“Where an agent or trustee is charged with embezzlement of funds belonging to the county, he cannot be heard to say that such funds were unlawfully acquired by him as such agent and trustee. If he was agent enough to ré-ceive the funds belonging to the county, he was agent enough to be punished for embezzlement of said funds. * *

Other assignments of error are made; they have been carefully considered; none require discussion. We find no' material error.

The case is affirmed.


author: DAVENPORT, P. J.

text:
    JIMMIE STROUD v. STATE.
    No. A-8865.
    July 19, 1935.
    (47 Pac. [2d] 883.)
    Laynie W. Harrod and Wright & Wright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the larceny of an automobile and sentenced to serve a term of live years in the penitentiary.

On the night of the 21st of September, 1933, Frank C. Hawk was at the Wesley Hospital on Twelfth street, in Oklahoma City, Okla., visiting his wife, wlm was a patient in the hospital; he parked his car near the hospital and about nine o’clock, when he came out he discovered his car was gone; he reported the missing car to the police, giving the number of the license tag and the motor.

Webb Campbell, testifying for the state, stated on September 21, 1933:

“I was a member of the police department, and was on duty driving a scout car; Douglas Gates, now deceased, was with me ; we heard the report from the police department relative to the automobile that had been stolen, a 1927 Buick coupe; after we heard this report we were driving north on Central avenue, and just as we crossed 4th Street we saw a colored man park a car on the west side of the street about fifty feet north of the intersection; we passed slightly by the car and turned in an alley and started toward the car that we had seen the colored man park; the colored man had gotten out of the car and started west, when he saw us coming he ran; I jumped out of the car; about 100 feet west of Fourth street and Central there is an apartment house and this colored man ran into the east side of the apartment house; there is a board fence about four and a half feet high that runs along the east side; when I got to the fence I saw him running back out the front way; I went from where I was back down Central a block where I caught him; I know it was a colored man driving the car; I never lost sight of this man after I saw him park the car' until he jumped out and started to run; he was the same man that X saw in the automobile parking when I first saw him, and is the same darky X chased all the time from the time he started to run until I arrested him.”

W. J. Starey, testifying for the state, stated:

“I was Lieutenant of the Stolen Car Department of Oklahoma City Police during the month of September, 193'3; was on duty the evening of the 21st; a Buick coupe was reported stolen, the tag number was 62,706. The car was stolen from the 300 block on West 12th Street; it was recovered the same night by officers Campbell and Cates. We broadcasted a full description of the car that was stolen.”

The defendant called several witnesses who testified to having seen him at different places in the city the evening of the alleged larceny of the car, and different places where he worked, for the purpose of proving an alibi.

The defendant, testifying in his own behalf, stated:

“I have been convicted of a felony and served a term in the penitentiary; I did not steal the Hawks automobile; the evening of the alleged larceny I worked for Mr. Harrell in the 200 block on 14th ¡Street; saw Mr. Hewitt, he is the man I worked for; I went to work about 4:30 and quit at 7:30; they paid me for the work and from there I went to my brother Alonzo’s; we left my brother’s about eight o’clock if I am not mistaken and went to Broadway, transferred at 4th and Broadway and caught an east 4th street car.”

The foregoing is all the testimony it is deemed necessary to state.

The defendant has assigned several errors alleged to have been committed by the trial court, but has filed no brief in support of his assignments. The first one to be considered will be the third assignment, which is a motion of the defendant to dismiss the case for failure of the state to give the plaintiff in error a speedy trial, which is guaranteed to him by the Constitution of the state of Oklahoma, insisting they permitted three terms to expire before giving him a trial.

Section 2872, O. S. 1931, provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary1 be shown.”

Under the statute the next term of court means the next regular term, and not special terms held for special cases. State ex rel. Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736.

The burden is. on the defendant to prove that the trial had not been postponed upon his application. Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 P. 80.

Where the accused moves to dismiss the prosecution for failure to bring the prisoner to trial at the next term of court after which it is triable under the provisions of section 2872, O. S. 1931, the burden is on him to show that the failure to bring the case to trial was the fault of the prosecuting officers. If he is on bail, it must be shown that he made demand for trial or resisted the continuance; otherwise he is not entitled to be discharged because of failure to prosecute. Griffith v. State, 36 Okla. Cr. 322, 254 Pac. 112; State ex rel. Davis v. Bayless, District Judge, 38 Okla. Cr. 129, 259 Pac. 606.

The record in this case clearly shows the defendant was on bond during the pendency of his case and before the trial, and that no demand was made on the state for a trial. The motion of the defendant to dismiss was properly overruled.

The next question to be considered is the question of the sufficiency of the evidence. There is a clear conflict in the evidence. This court has repeatedly held:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738.
“Where the state’s evidence is sufficient, if believed, to sustain a conviction, the judgment will not be reversed although the evidence * * * may be conflicting.” Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746.

The evidence is sufficient to sustain the judgment. The other errors complained of are without merit. Finding no errors in the record warranting a reversal, the judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    STATE v. WALTER LEE JACKSON.
    No. A-8862.
    July 26, 1935.
    (48 Pac. [2d] 861.)

      Lewis R. Morris, Co. Atty., Walter Marlin, Asst. Co. Atty., and Mac Q. Williamson, Atty. Gen., for the State.
    J. Q. A. Harrod and Laynie W. Harrod, for defendant in error.
   EDWARDS, J.

This is an appeal by the state on a reserved question of law. A preliminary information charging defendant in error with a felony, an assault with a dangerous weapon upon one J. C. Acord, was filed before a magistrate of Oklahoma county. The verification was signed by J. C. Acord. The signature of the magistrate was omitted from the jurat. Defendant in error was arrested, was arraigned, waived reading of information, entered a plea of not guilty, and made appearance bond. On his application hearing was continued. Later, a preliminary was had, proper finding of probable cause made by the magistrate, bond fixed and made by defendant, and by proper transcript certified to the district court. An information charging the identical offense as in the preliminary information was then filed in the district court. Some six months later the cause came on for trial in the district court; both parties announced ready. A jury was called and examined on voir dire, and, just before they were sworn to try the cause, defendant’s counsel made oral request to> withdraAV plea of not guilty and to file a motion, which the court allowed. Counsel then made an oral motion stating: First, the preliminary information was not sworn to; second, that the information in the district court was not sworn to. He then made what he terms an oral demurrer, stating that the information was not signed by the county attorney: The court announced he sustained the “motion or demurrer” and ordered the defendant to be discharged. In so doing, he announced:

“A real judge with courage and red blood and intellect will set aside and hold for nothing decisions of appellate courts when they are wrong.”

The motion to set aside the information was wholly insufficient and should not have been entertained. Sections 2936-2945, Okla. Stat. 1931, are the applicable statutes. Section 2938 is:

“To enable the defendant to- malte proof of the matter set up as grounds for setting aside the indictment or information the defendant may file his application before any court of record in the county, setting out and alleging that he is being proceeded against in a certain court, naming it, and setting out a copy of his motion and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof. The court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses to testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to support tbe motion. The mover shall pay the costs of the proceeding. He shall notify the county attorney at least two clear days before he proceeds, of the time and place of taking, such testimony, and the county attorney may be present and cross-examine the witnesses, and if need be, the case in the district court must be adjourned for that purpose.”

Under these statutes it has been uniformly hebl that a defendant must bring himself clearly within their provisions. Brown v. State, 36 Okla. Cr. 293, 254 Pac. 113; Thornton v. State, 49 Okla. Cr. 380, 293 Pac. 583, 295 Pac. 803. Accused must make his application in writing and under oath, and must allege he is acting in good faith. Barnes v. State, 46 Okla. Cr. 449, 286 Pac. 21; Thornton v. State, supra. The trial court entirely ignored this requirement of the law and permitted it to be made orally and without verification.

In passing on the questions presented, the court quoted a number of sections from the Constitution. Only one of these, section 17 of the Bill of Rights, had any application. The court also quoted from Shakespeare, whom he designates “the greatest philosopher that ever lived.” We have a great admiration for the English bard, but feel constrained to hold that the maunderings of Palstaff cannot take the place of the Oklahoma Constitution and statutes. We fear the learned trial court is a better authority on A Midsummer Night’s Dream than he is on the laws and decisions of this state.

There was no showing made that the complaining witness did not verify the preliminary information, but nevertheless, the court announced that he would not take judicial notice of his signature, 'apparently overlooking the fact that the burden was on defendant to make proof of any error which he claimed deprived him of any substantial right. In Warren et al. v. State, 35 Okla. Cr. 430, 251 Pac. 101, it was held:

“Where a preliminary complaint charging a felony is properly verified before a justice of the peace, it is a sufficient basis for the issuance of a warrant of arrest, although the officer administering the oath neglects to sign the jurat.”

Even if the preliminary complaint had not been verified, the law is settled by many decisions of this court and by the general rule that an unverified complaint is sufficient for all purposes, except as a basis for the issuance of a warrant; but if a warrant is issued on an unverified complaint, it must be challenged by a motion to quash the warrant at the first opportunity, or the objection is waived. In Steiner v. State, 33 Okla. Cr. 298, 243 Pac. 1002, it is held:

“Where an unverified complaint charging a felony is filed before a magistrate, it is insufficient to authorize the issuance of a warrant, but, if a warrant is issued on such complaint, and a defendant apprehended and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on such complaint without challenging its sufficiency for lack of verification, such defect is waived.”

In Conti v. State, 45 Okla. Cr. 105, 282 Pac. 182, it is held:

“Although the warrant of arrest may have been issued by the court clerk without authority, if the defendant failed to file his motion to set aside such warrant before arraignment and plea, the error is waived.”

This holding has been followed many times by this court. It is equally well settled that an information charging, a felony filed in a district court is not required to be verified. In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805, it is field:

“There is no requirement in this state that an information charging a felony, filed in the district court, be verified.”

See, generally, Simpson v. State, 24 Okla. Cr. 275, 217 Pac. 1054; Stamper v. State, 25 Okla. Cr. 324, 220 Pac. 67; Brown v. State, 9 Okla. Cr. 282, 132 Pac. 359; Henson v. State, 5 Okla. Cr. 201, 114 Pac. 630; Gunnells v. State, 7 Okla. Cr. 98, 122 Pac. 264; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554; Davis v. State, 4 Okla. Cr. 508, 113 Pac. 220; Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376; Bonham v. State, 6 Okla. Cr. 227, 118 Pac. 159; Conti v. State, 45 Okla. Cr. 105, 282 P. 182; Ex parte Robinson, 56 Okla. Cr. 404, 41 Pac. (2d) 127.

The trial court also erroneously held that the information was not signed by the county attorney. This court holds that when the name of the county attorney is affixed in print or typewriting by a duly appointed assistant, who then signs, this is a sufficient compliance with section 2829, Okla. Stat. 1931. Hardin v. State, 56 Okla. Cr. 440, 41 Pac. (2d) 922.

If follows the trial court was in error in all the reasons assigned for his decision. The case is reversed and remanded, with instructions to vacate the order sustaining the “motion and demurrer,” and tO' proceed with the trial.

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


text:
    C. T. RICE v. STATE.
    No. A-8797.
    July 26, 1935.
    (48 Pac. [2d] 349.)
    Williams, Cowan & Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information jointly charged with W. G. Bray, of the crime of embezzlement; was tried separately, convicted, and his punishment fixed at imprisonment in the state penitentiary for three years, and a fine of $737.18.

Lucy Mae Biggerstaff, the first witness called on behalf of the state, testified in substance:

“I am deputy court clerk and have been from June, 1930, until this date; Mr. Bray was court clerk of this county from January, 1930, maybe it was ’31, up to August, 1933. Monies that are deposited when cases are filed, or during the progress of the case, comes into possession of the court clerk; these funds are deposited with the county treasurer; in disbursing the funds received by the court clerk, by virtue of his office, we have a voucher, and issue our voucher checks; the court clerk is authorized to disburse the funds received by him by his own check; when a deposit is made the clerk gives a receipt, and it is entered on the appeearance docket in the same case, and then on the cash book of the date it was received. Mr. Bray made the deposits, except the first one after he came in the office. I was then showing him, although Mr. Bray and I wrote vouchers on those funds, the signature on exhibits 1 to 11, inclusive, is the signature of W. G. Bray, and our vouchers made payable to C. T. Bice.”

The witness then identified a list of cases showing the amount of deposits in the case that was withdrawn by W. G. Bray annd O. T. Bice. While the witness was being examined on the number of cases and the amount of the deposits drawn, the county attorney stated to the court that the state elects to stand on the item of $369.09, which amount is represented by voucher No. 5638, dated June 3, 1933, the voucher being Exhibit No. 3.

The witness further stated that the amount of money, $334.92, withdrawn by the defendant and W. G. Bray, as shown by state exhibit No: 3, voucher No. 5638, stated the amount from the cases, and numbers, which show the name of the attorneys representing the parties, and who was responsible for making the deposit when the cases were filed, or during the progress of the case, showing that fifty-four separate and distinct items of rebate from that many cases. Further on the witness was examined with reference to certain number and cases, and gave the year and date the cases were closed.

J. B. Dudley, a witness for the state, stated:

“I am an attorney at law in Oklahoma City, and was attorney in case No. 4071, in the district court of McClain county, Okla.; C. T. Rice, to my knowledge, was not an attorney of any of the parties; I deposited the court costs, and did not authorize C. T. Rice or W. G. Bray, or any other person to collect the unexpended court costs in that case.”

Witness also testified as to being, the attorney in cases Nos. 4234, 4292, and 4294, and stated he did not authorize W. G. Bray or C. T. Rice to collect any of the unexpended cost in the cases named.

To set out in detail the testimony of each witness of the state who was an attorney, or interested in the cases, which show the unexpended costs or moneys in the cases had been withdrawn by W. G. Bray or O. T. Rice, would lengthen this opinion longer than it is deemed necessary for the purpose of arriving at a. decision.

The defendant, testifying in his own behalf, in substance stated:

“I am one of the defendants in this case; I will be 51 years old this coming March; I live in Purcell, next door to the courthouse; I came to Purcell in 1907 from Missouri ; I have been practicing, law in McClain county since 1907; my family consists of a wife, and three daughters raised here in McClain county; I have known W. G. Bray six or seven years; I first got acquainted with him when he was teaching school in the country; later he was elected court clerk; he went into office about two years ago last January; I had a number of cases filed in his office as court clerk; I am familiar Avith court cost matters; I got some contracts from attorneys to collect their rebates for them; I think I commenced the latter part of ’32, and continued to be interested in it until February, ’33; I had some contracts prior to ’33; I made arrangements with Mr. W. G. Bray to check the records as to> the amount of unused costs in each case and recover rebates for clients for him; Mr. Bray and I had contracts to collect their rebates; the contracts were in writing*; defendant’s exhibit No. 1, is the contract I refer to.”

The defendant then detailed the number and cases in Avhieh he claims he had their written or verbal contract to collect the rebates, and insists he only received 25 per cent, on the rebates, and turned the balance in cash over to W. G. Bray for him to pay out tO' the parties to Avhom the rebates Avere due. Defendant insists that the money he collected Avas turned over to' Mr. Bray, less 25 per cent, of the amount as his fee for collecting them.

W. G. Bray, testifying for the state, in rebuttal stated:

“I live in Oklahoma City at present; was formerly a resident of Purcell, McClain county, Okla.; I held the office of court clerk in McClain county, from January 5, 1931, to August 5, 1933, Avhen I resigned; I signed the vouchers from one to eleven, inclusive, in state exhibit No. 1, and delivered the same to G. T. Rice; I am familiar with all the cases included in exhibits 1 to 11, inclusive; I did not tell O. T. Rice that I had authority from a lawyer, or lawyers in any of the cases, to collect rebates in court costs for them; I received some of the money represented in this exhibit one to eleven, but I did not receive 75 per cent, of that money. In the final windup I received slightly over 25 per cent, of the entire amount.”

On cross-examination W. G. Bray stated:

“I resigned as court clerk on the 5th of August, 1938; I delivered vouchers one to eleven, to Mr. Rice; I did not tell Mr. Rice when I delivered them to him that it only covered contracts that he and I had to collect money belonging to litigants, snch as cost money due them; I did not tell him that no part of the money belonged to the county or state; I can’t say I promised to give Mr. Rice a list of the cases, I don’t recall.”

Witness admitted a short while before he was arrested he mailed to the firm of Luttrell & Holland, of Norman, Okla.., a small rebate in a case in which they were interested.

Several pages of the record are taken up in further cross-examination of the witness Bray who is one of the defendants named in the information but not on trial.

The defendant called Mrs, Cora Spain to show that she overheard a conversation in the office between the defendant and W. G. Bray, in which it is alleged that Bray told the defendant he would furnish a list of the cases sho wing the amount of rebate that was drawn. The evidence of the defendant shows that he received the money from the vouchers from one to eleven, and the evidence of the defendant shows that he retained 25 per cent, of the amount and turned the other over to W. Q-. Bray. W. G. Bray denies this statement, and says in the final settlement he received a little more than 25 per cent, of the amount withdrawn from the cases, included in the vouchers from one to eleven, being state exhibit No. 3.

There is a clear conflict in the evidence between the defendant and the witness W. G. Bray. The admission of the defendant that he received the vouchers introduced in evidence leaves the question as to what authority, if any, he had to withdraw the funds in connection with W. G. Bray, and keeping all or any part of the funds.

Several witnesses testified they did not authorize defendant to withdraw their balance of unearned costs in the cases they had filed, and W. G. Bray testified he did not tell the defendant that he had contracts from any lawyer to collect the same.

The defendant has assigned several errors alleged to have been committed by the trial court sufficient to warrant a reversal. The only errors it is deemed necessary to. consider are the sixteenth and seventeenth; that the court erred in overruling the motion of the defendant for a new trial; and that the court erred in overruling defendant’s motion in arrest of judgment, which were duly excepted to at the time and exceptions noted.

The motion for a new trial includes all the other assignments, and for that reason it is not deemed necessary to set out in full the other assignments. The defendant argues with a great deal of force that the verdict of the jury is not sustained by sufficient evidence, and is contrary to the law, relying upon the case of Wyatt v. State, 21 Okla. Cr. 121, 205 Pac. 194, 196, in which the court said:

“If an agent, bailee, or servant does with the money or property of his principal only what he has been authorized to do, and has no felonious intent, he is not guilty of embezzlement.” 20 Corpus Juris with annotations and numerous cases cited.

The citation quoted from the Wyatt Case is in the abstract correct, and is the law where the facts are sufficient to sustain the law as laid down in the quotation. In this case, however, the evidence shows that the defendant and W. G. Bray entered into a contract to withdraw this money from the treasury, which had been deposited by the different litigants, and there is not a word in the testimony to show that Rice was the agent of Bray. The record discloses an agreement between W. G. Bray and the defendant, C. T. Bice, to Avithdraw the unearned rebates from the numerous cases pending in the court where Bray was the court clerk, and that in furtherance of that agreement money was withdrawn and used for their personal interest and benefit, Bice stating he retained 25 per cent, after he had cashed the vouchers at the hank and delivered the other to W. G. Bray. W. G. Bray stating that in the wind up of the settlement he received a little more than 25 per cent, of the money withdrawn belonging to the different litigants that had been deposited in the court funds where W. G. Bray was the court clerk.

The defendant argues forcibly and skillfully that the evidence fails to show that the defendant assisted Bray in doing any of the acts forbidden by section 7761, O. S. 1931. With this argument we cannot agree, for the reason that the contract betAveen the parties Avas introduced in evidence, and each of them testified that the vouchers were made up by W. G. Bray, delivered to the defendant, C. T. Bice, and by him indorsed and cashed at the bank, clearly showing that the defendant in this case was not only assisting but aiding and abetting W. G. Bray in withdrawing the funds, the two, Bray and Bice, are charged with embezzling.

Section 7761, O. S. 1931, is very specific as to what a county treasurer, or other officer or person charged with collecting, receiving, safekeeping, transfer, or disbursing of the funds belonging to the state, county, precinct, district, city, town, or school district of the state, shall do with funds in their hands, as a public officer or a person charged with the duty of collecting the funds and safekeeping them.

The section also provides that if a person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer or other officer or person shall be deemed guilty of embezzlement of so much of said money or other property, as shall be converted, used, invested, or paid out, as aforesaid.

This court has passed upon the question of the evidence in many cases where there is a conflict in the evidence, and has held that where the evidence, and reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738.

It is further held that when the state’s evidence is sufficient, if believed by the jury, to sustain a conviction, the judgment will not be reversed although the evidence may be conflicting. Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Jimmie Stroud v. State, 57 Okla. Cr. 273, 47 Pac. (2d) 883.

The evidence is sufficient to sustain the judgment.

The defendant assigns as error that the court erred in overruling his demurrer to the information. In Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, in paragraph 1(a) of the syllabus, this court held:

“That where an information states that any officer is by law charged with the receipt, safekeeping, transfer, or disbursement of money, and states that such money was embezzled and was not kept and disbursed as provided by law, but was appropriated to his own use, not in keeping with his trust, such averments are sufficient.”

In State v. Virgil Harris et al., 47 Okla. Cr. 344, 288 Pac. 385, this court discusses the sufficiency of an indictment or information, and held that if an indictment or information set out tbe elements of the offense of embezzlement as contemplated in section 9781, C. O. S. 1921, now section 7761, O. S. 1931, in substantial compliance with the language of said section, it is sufficient.

. The defendant next refers to the law under which he should have been sentenced, and cites section 2047, O. S. 1931, instead of section 7761, O. S. 1931. In State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court said:

“As between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute.”

The defendant further urges that the court erred in giving instructions 5 and 9. After a careful consideration and examination of these instructions, when considered in connection with the other instructions given, we hold the instructions correctly advised the jury as to the law applicable to the facts, and the court did not err in giving the two instructions complained of.

There are other errors assigned by the defendant, but they are without merit. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There are no errors in the record warranting, a reversal. The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    RAY BROWN v. STATE.
    No. A-8905.
    July 26, 1935.
    (48 Pac. [2d] 348.)
    Hugh J. Adams, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Geen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted, as shown by the verdict of the jury, of possession of liquor, and his punishment therefor fixed at a fine of $50 and imprisonment in the county jail of Logan county for a period of thirty days.

The state called Milo Beck, the sheriff, and Roy Jenness, deputy sheriff of Logan county, Okla., each testifying they went to the town of Crescent, Okla., on or about the 1st day of July, with a search warrant to search a certain described building, and they did search the building and found some whisky in the building, claiming that the defendant stated to them it was his whisky.

The defendant, testifying in his own behalf, denies he made a statement to the officers that the whisky belonged to him.

Reference is made in the testimony of the state to certain bottles of whisky that were introduced in evidence, but there is a total failure on behalf of the state to prove what quantity of whisky was taken from what is known as the Brown building, in the town of Crescent, under and by virtue of the search warrant, and the search made by the sheriff and his deputy.

At the close of the state’s testimony the defendant demurred to the evidence offered by the state for the reason that there was not sufficient evidence offered to sustain a conviction.

The provisions of section 2626, O. S. 1931, as amended by chapter 153, § 3, of the Session Laws 1933, pp. 338, 339, makes the keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquor, or any imitation thereof or substitute therefor of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain more than 3.02 per cent, of alcohol measured by weight, and which is capable of being used as a beverage prima facie evidence of an intent to convey, sell, or otherwise dispose of such liquors.

The proof of the state in this case fails to show that the defendant had any quantity of liquor in his possession prohibited by the statute, and is wholly insufficient to sustain the verdict and judgment.

The demurrer of the defendant to the state’s evidence should have been sustained. The case is reversed.

EDWARDS and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    JOHN ROGERS v. STATE.
    No. A-8793.
    July 26, 1935.
    (48 Pac. [2d] 344.)

      M. W. Gross and J. H. Warren, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and O. A. Brewer, Co. Atty., for the State.
   DOYLE, J.

The information in this case filed in the district court of Choctaw county, April 26, 1933, charged that on or about February 18, 1931, the defendant committed the crime of arson. The charging words are:

“That he, the said John Rogers, then and there being, did then and there willfully, wrongfully, unlawfully, maliciously set fire to, fire, cause to burn in the nighttime, a certain dwelling house of John Campbell, said dwelling then and there being inhabited by John Campbell and family, contrary to,” etc.

On his trial the jury returned a verdict finding him guilty of arson in the second degree and assessing his punishment at imprisonment in the penitentiary for five years. Motion for a new trial was presented and overruled. From the judgment rendered in pursuance of the verdict on February 22, 1934, the defendant appeals.

A substantial statement of the material evidence is as follows:

W. C. Henry testified that he was fire chief in Hugo, February, 1931; that the John Campbell residence fire occurred February 18, 1931, at 3:45 a. m. - that from his experience as fire chief would say that the fire was of incendiary origin, and from his knowledge of fires he decided it was a coal oil or gasoline fire.

Jim Mooney testified that he is now serving a term in the penitentiary of this state, lived in Hugo in the year 1931, the defendant was at his house and they planned to do the work; that he could not recall just exactly how it happened. They got a pint of liquor, got “kinda gee’d up” a little and talked about making plans to do away with this bouse; that tbe defendant said, “it would be $50 apiece to us.” He did not know whether anything was said or not about getting any property out of the house, hut anyhow they got some stuff out of the house. There was a 5-gallon can with gas or coal oil in it in the garage at the place, and that night they started to throw it up in the house. His wife and boy and his wife’s half sister, Myrtle Robinson, were at his home that night; that they got a few clothes out of the house and some knives, forks, spoons and some plates and a 12-gauge shotgun. They put the stuff in sacks and carried them to witness’ home, then came back and witness got in the loft and sprayed the oil and gas, then he came out and he supposed John set fire to it; that they left the place together and walked off down the street to witness’ home; that- Rogers went on home, and came hack that night and got a couple of sacks of the stuff that he had left in the barn or the garden; that witness took his sack into his house and took a part of the stuff out, that his wife and Myrtle Robinson were present.

Mrs. Jim Mooney testified that John Rogers came by one morning and wanted to know where Mooney was, and she told him he had gone to town.. Rogers said, “I have a deal on for us,” she asked what kind of a deal and he said “Well, a house burning,” she said “Well, I don’t want Mooney into anything like that,” he said “Aw, Kid, come on across with us, it’s just 50 bucks apiece for us”; that on the 17th of February, 1931, Rogers was in their home and said to- Mooney “Come on out,” and they left her home in a car and stayed away a right smart while, then came back and left again, it was then getting dark. That along about 9 or 10 o’clock they got back with the sacks.

On cross-examination she stated that both of them together never did talk about burning this house before her until that night; that when they came back to her house about 10 o’clock that night each had a sack, and Eogers carried his on oil; that she heard the fire alarm that night and it was not but a short time after the fire alarm until they came back; that Mooney, her husband, .brought bed sheets, pillow cases, and other things home; that Jim Mooney and witness are now divorced.

Myrtle Eobinson testified that she lives in Dallas, Tex., and was visiting Mrs. Mooney, her half sister, when the Campbell fire occurred; that John Eogers came to the Mooney home and they were planning something; that she was in the next room and could hear them talking; they said they were going out on a job, they called it, and Jim Mooney said Lawyer Gross furnished him the money to fix it with. They fixed a flashlight and left. They said they were going to steal some Avhisky. That the next morning she noticed some silverware, a looking-glass, shotgun shells and pistol cartridges in a dresser drawer; that not long after she went to the county attorney’s office and reported that this property was at the Mooney home.

E. L. Hamby testified that in the fall of 1931 he traded a 25-20 Winchester to John Eogers for a 12-gauge Damascus shotgun.

Louis Compton testified that he heard John Eogers say he was at home that night of the fire and heard him say that he was at Eed Osborn’s that night.

On behalf of defendant, Jim Osborn, usually called “Eed,” testified that the night of the fire his baby was sick and John Eogers was at his home sitting up with the baby.

Manus Parden testified that the night of the fire he called at Bond’s store for bis daughter and Miss Hines and was looking for Elsie Morris, who lived at the same place he did and who had a sick baby; that he called at Jim Osborn’s a little after midnight and John Rogers came to.the door and he asked if Elsie Morris was there, that she had a sick baby and he was looking for her, and Rogers said that he was sitting up with Osborn’s sick child; that Red Osborn lived about a mile from the John Campbell house.

As a witness in his own behalf, John Rogers testified that he had nothing to do in any way with the burning of the John Campbell house; that he was at home until 9 or 10 o’clock, then went to Jim Osborn’s and stayed the rest of the night, sitting up with their sick baby; that old man Ed Kirk was there a part of the time, and Manus Parden came there late in the night; that he knew nothing about any property being taken from the Campbell house.

Ed Kirk testified that he was at Red Osborn’s house the night of the fire and John Rogers sat up that night with Osborn’s sick baby; that there were four or five persons there a part of the time and a man called Parden called there in the middle of the night and asked for Elsie, old man Henry’s daughter-in-law, and Rogers told him she was not there. The next morning somebody came along and said the old chief’s house burned up. On cross-examination he was asked: “Q. How long have you lived in Hugo? A. I hauled the first plank that was nailed in Hugo.”

In rebuttal, Jim Mooney testified that John Rogers said, when leaving Mooney’s house that night, that he was going to Red Osborn’s.

The grounds of the motion for a new trial and here assigned as error are:

Error of the court in denying a continuance, and that the verdict is contrary to law and to the evidence, and was the result of passion and prejudice of the jury, in assessing the maximum penalty.

We think it was an abuse of discretion to deny the application for a continuance upon the showing made. However, the only question that we deem necessary to consider is the alleged insufficiency of the evidence to support the verdict.

To prove the corpus delicti of arson, it must be shown not only that the building was burned, but also that it was burned by the willful act of some person criminally responsible, and not as the result of natural or accidental causes. Where a building is burned, the presumption is that the fire was caused by accident or natural causes rather than by the deliberate act of the accused. 3 Cyc. 1003.

The fact that the house was burned was shown by the testimony of the city fire chief. He said that it smelled of coal oil or gasoline, and that the fire was of incendiary origin. The evidence against the defendant was that of the accomplice, Mooney, a self-confessed thief, who was then serving, a term in the penitentiary for some other crime. He was the only witness who testified as to the facts and circumstances of the commission of the crime charged.

We think the evidence was prima facie sufficient to establish the corpus delicti.

The rule of law forbidding a conviction upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense is, under the statute (section 3071, St. 1931), positive and peremptory.

“The corroborative evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplice’s testimony to make it tend to connect the defendant with the crime.”
“There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.”
“It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his' testimony must be corroborated as to the particular defendant.”
“It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators.”
“The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.” 1 Enc. of Ev. pp. 104, 105, 106, and 108, and cases cited.

Under the statute, section 3071, supra, there cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense, aside from and without the aid of the accomplice’s testimony, and it is self-evident that the main fact in this case cannot be corroborated by a collateral fact, the existence of which is dependent upon the same class of testimony. Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; State v. Wilks, 17 Okla. Cr. 247, 187 Pac. 813; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062.

Independent of the testimony of the accomplice, Mooney, there is no substantial evidence tending to connect tbe defendant with tbe commission of tbe crime charged. The testimony of Mrs. Mooney tended only to show that certain goods were brought to her home by her husband, and tbe defendant was with him; she fixes the time about 10 o’clock, when the undisputed fact is that the fire occurred nearly four hours after midnight.

No witness saw the defendant at the house or observed him anywhere in its vicinity on the day or the night of the fire, or at any other time. Nor were there any circumstances disclosed, tending to connect him with the commission of the crime. His testimony and that of his witnesses tended to show that he did not leave his home that night until about 10 o’clock, and was at the Osborn home from before midnight until morning.

The testimony of the state’s witness, Miss Robinson, to the effect that she reported to the county attorney that this property was at the Mooney home shows that she did not mention the defendant at that time.

The owner of the building burned or of any property therein did not testify, and there was no proof of noncon-sent to the taking of any property therein.

It appears the information was filed more than two years after the alleged date of the crime, and the case was not called for trial until about three years after said date. No reason for this delay appears in the record.

The statutory definition of arson is the willful and malicious burning of a building with intent to destroy it.

It appears the information was drawn under sections 1849 and 1851, St. 1931, reading as follows:

“1849. Arson is the willful and malicious burning of a building, with intent to destroy it.”
“1851. Any building is deemed an ‘inhabited building’ within the meaning of this article, any part of which has usually been occupied by any person lodging therein at night.”

The statute mates the intent to destroy a necessary element of the offense, and must be pleaded in the information. If the intent was merely to burn a building, then the word “willfully’’ in the information would be sufficient. While “willful” in the statute means “intentional,” it means only an intent to burn, and not an intent to destroy, as destruction is not necessary to the commission of the crime of arson.

The information in this case does not charge that the burning was felonious, and does not aver an intent to destroy. However, the record shows that no demurrer was interposed or objection made as to the sufficiency of the same to state a public offense. It will be seen from the foregoing that the information is not sufficient to charge the crime of arson.

The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty.

Upon careful consideration of the evidence, we are satisfied that the testimony of the accomplice, Mooney, was not corroborated as the law requires, and, for this reason, the verdict was contrary to law and the evidence. The judgment is therefore reversed.

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


text:
    HAROLD EDNEY et al. v. STATE.
    No. A-8798.
    July 26, 1935.
    (48 Pac. [2d] 340.)
    E. S. Howe and H. M. Shirley, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were jointly charged, tried, and convicted in the district court of Okfus-kee county, upon an information which charged them with an attempt to commit burglary. The jury failed to agree on the punishment. Motion for a new trial was presented and overruled. March 6, 1934, the court rendered judgment on the verdict and sentenced each defendant to imprisonment in tbe state reformatory at Granite for a term of six months. From the judgments, they appeal.

The information in substance charges that on September 18, 1933, the defendants attempted to commit the crime of burglary by sawing the lock on a storage building, owned and occupied by Okfuskee county, said building being a place where gasoline, fuel oil, tools, and other articles owned by said county were kept, with intent to steal and carry away said personal property.

Several assignments of error question the sufficiency of the evidence to sustain the verdict.

A substantial statement of the evidence is as follows:

Dan Ward testified that he was night officer at We-leetka. First saw defendant Harold Edney about twelve o’clock Sunday night September 18th, and found the defendant Eugene Akers about two hours later about 300 yards west of the county warehouse; that about 11 or 12 o’clock he found the lock of the warehouse sawed off and the door half open, and saw a car a little ways from the warehouse. Mr. Hartman came up and they took the feed line off the car; then he went to town to get a filling station man to haul in the car. The man was getting his truck out to go get it, and this redheaded boy, Edney, came up and said he had been hijacked. He was barefooted, and had on pants and undershirt; he told him they were going after that car, and the boy said, “That is my car, I will go down there with you.” When they got back with the car the boy said the hijackers took him out on the highway two or three miles. He started to jail with him and the boy said “Please don’t take me to jail, my buddy might be tied down there in that corn and would lay there all night and die.” The boy said they took $5 off of him and $6 off of the other boy; he got loose from them out on the highway toward Wetumka; that they found the other boy, Akers, down in the cornfield, both his hands and feet were tied with pieces of a shirt. He said two hijackers took him out there and tied him up; he said they stopped there to sleep and were sitting in the car when the hijackers appeared ; that the county building was on the railroad right of way, and the county has oil, tools, and machinery in it: that he did not know whether or not gasoline was kept there; that he put the Edney boy in jail there, and took the other one to Okemah. That the next morning he trailed two tracks from the warehouse out through the cornfield to where this boy was tied down; that in the car he found a lot of clothes, some kind of school business “basket ball or something,” two cans in the back end; that a milk can was wired on the side; that out on the Wetumka road the next morning about 350 yards from a filling station, he found clothes with a pair of shoes rolled up in them, and a bundle of clothes with a hack saw, two flashlights, a pair of pliers, an automatic pistol and six cents in money in the clothing ; that both boys said they had come down there to get work.

. Charles Hendricks testified that he went with Dan Ward and found the boy in the cornfield; that his hands were tied behind him and his feet were tied and the mosquitoes were about to eat him up. The boy said somebody came to the car and hijacked them; that the door of the warehouse was open, but he did not see the lock; that Mr. Wilson, county commissioner, carried the key to the warehouse. That when they got back he got his car and took the boy to Okemah; that he was not an officer but had been a deputy sheriff.

Arthur Hartman'testified that he was a car inspector for the Fort Smith and Western and on his way from the water tank to the depot, he flashed his light and saw a Chrysler car and heard a noise like some one was trying a lock or a chain was rattling against that tin building; that he saw Dan Ward at the depot and told him something was wrong and Ward went over there; that he noticed the door of the warehouse was open, but did not see the condition of the lock; that he saw the Edney boy with Dan Ward and saw the Akers boy when they brought him in from the cornfield. On cross-examination he stated that he helped to' take the gas line off of the car; that he unscrewed one union and Dan Ward unscrewed the other.

Alex Ledford testified that “Dan Ward is my stepfather, he can’t drive a car” and he drove their car out on the highway towards Wetumka, where they found the clothing'; that the distance, in his judgment, from the warehouse to where the clothes were found, was a good half mile.

At the close of the state’s evidence, the defendants moved for a directed verdict of acquittal, for the reason that the evidence is insufficient to warrant a conviction.

The testimony of defendant Harold Edney in his own behalf is as follows:

“My home is in Britton, my age is 23. I had been working for the Midwest Supply Company and was laid off when Eugene Akers was laid off. I was told that if I would go to Checotah, I would get a job there, we left Oklahoma City in Akers’ car Friday afternoon, drove to Holdenville and stayed there with Akers’ wife and his folks. On Sunday morning we drove to Weleetka. I was advised to stop at Weleetka and see the man who was loading out machinery for Moran and .Buckner, I talked with him.and he told me to stay. We stayed around there and drove to the Cotton Compress that day; that evening we thought we would sleep in the car and about 9 or 9:30' we were hijacked. After that I don’t know what happened to Akers. They put me in their car and drove out of We-leetka two or three miles, took my clothes and shoes and told me I could go, on the way back, I stopped at a filling station and asked a boy to take me to town and help me find the law, he said he would and we drove around town looking for the law and found Mr. Ward who said he had a car to go and get, I went with him and it was our car. When we got back, he locked me in jail, the next morning I was brought to Okemah. I had a set of mechanic tools, some carpenter tools, two pair of shoes, toilet articles and an automatic pistol in the car. When they were turning my car a man called Hartman came up and wanted to know what happened, it was explained to him and he said ‘Well, I saw the car here and it looked funny that no one was around it.’ He said he went to the depot, and told Dan Ward that this car was up there and no one around it. After we got the car, I told them they ought to try to find Akers and see if he was hurt, or telephone his folks, they said they would do- that and they put me in jail. I did not tell Mr. Ward that Akers was tied up down there. I did not see Akers again until after the preliminary hearing. I was 93 days in jail before I was released on bond.”

Defendant Eugene Akers testified:

“I live at Britton in Oklahoma county. When we pulled up to that place that night it was around nine-thirty or ten and we hadn’t no more than dozed off when someone holloed on the side, ‘get out.’ It scared me, I didn’t know what was happening, we had a tool box on the running board that kept the door from opening, on that side. I supposed at the time they were laws. They took me out, and shook me down, then took me in front of the car, took my shirt off, stripped it up and tied my hands. I don’t know what happened to Harold, he disappeared. They had me around the car 15 or 20 minutes, then took me north thirty or forty yards, turned west aross the main track into a cornfield. I tried to trip the man and he hit me on the side of the head with a gun, then finished tying me there; tied my hands and feet together. That is the last I saw of him, it was breaking daylight when they found me, I was almost eaten up by the mosquitoes, I had |7 or $8. Harold was closely associated with Frank Fisk, a member of the Moran and Buckner Company and we came down there for work. The car was mine. At Holdenville we stayed with my wife’s folks.”

On cross-examination he stated:

“We stayed at Holdenville Saturday night; stayed in front of my wife’s folks’ house.”

He was then asked:

“Q. I will ask you if, in the preliminary hearing you didn’t testify this in substance: that you stayed outside of Weleetka on the road? A. I did not.”
“Q. Eugene, I will ask you if, at the preliminary hearing in this case, the following question was not asked you: Where had you boys stayed the night before you had got in Weleetka? A. I don’t remember.”

Delbert Howard testified :

“I have been employed for more than a year by T. R. Garden, who operated the filling station. On this night one of the boys came to the station, woke me up and asked me if I would take him to town, saying that he had been hijacked. He had on trousers and undershirt. I took him to town and drove up and down the main street two or three times and a few side streets looking for Dan Ward. We finally located him at the Fleming Chevrolet garage and I let him out there.”

Mrs. J. SI. Jenkins testified that these boys came into the cafe about noon on Sunday, had lunch and paid for it.

Steve Pennington testified:

“I live at Oklahoma City, am a contractor and builder, have known Harold Edney for four years, he is a plasterer and worked for me. I know his general reputation in the community where he lives, for being a peaceable, honest, law-abiding citizen and that reputation is good.”

On cross-examination he stated that Mr. Edney worked for him off and on for two years, and named other contractors that he had heard say that Mr. Edney’s character was good, and that he was an industrious young man.

H. F. McMann testified that he knew the general reputation of Harold Edney in the community where he resides as being a peaceable, law-abiding citizen, and that reputation is good.

R. C. Delautre testified he lives at Oklahoma City, had known Mr. Edney for fifteen or sixteen years, knows his general reputation in the community where he lives as being a peaceable, quiet, law-abiding citizen, and his reputation is good.

Joe Delautre testified he had known Mr. Edney fivé or six years and knows his general reputation in the community where he resides for being a peaceable, good, law-abiding citizen, and that reputation is gqod.

In rebuttal: O. P. Nash testified that he was county attorney of Okfuskee county; as such conducted the preliminary hearing of the defendants, and defendant Akers, as a witness, was asked: “Question, ‘Where had you boys stayed the night before you got in Weleetka?’ and answered, ‘In the car out on the road right in town.’ ”

The rule is well settled that this court will not disturb a verdict on account of the evidence, where there is evidence to support it; the converse rule is equally, well settled that it is not only the province, but the duty, of this court to set aside such a verdict when it is contrary to the evidence, or where as a matter of law the evidence is insufficient to support it.

The probative force of good character depends upon the nature of the alleged crime and upon the quality of the inculpatory evidence. The cases in which it carried great weight are those in which the testimony adduced in support of the charge is entirely circumstantial.

Taking all the circumstances of this case into- consideration, it is our opinion that as a matter of law the evidence is insufficient to support the verdict and judgment of conviction. The only evidence that directly tends to show an attempt to break and enter the building in question is that of the witness Ward. He alone testified that he found the lock had been sawed off. Two other witnesses testified that they noticed the door of the building was open. There was no testiniony tending to show that these defendants attempted to break and enter this building with intent to- steal.

In cases of this character, where the state relies wholly on circumstantial evidence, and that of doubtful probative force, and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support conviction.

In the case of De Bose v. State, 18 Okla. Cr. 549, 197 Pac. 176, 178, it is said:

“The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive Character, will not justify a conviction. They must be such as to generate and justify full belief, according to the standard rule of certainty.' It is not sufficient that they coincide with and render probable the guilt of the accused, but .they must exclude every other reasonable hypothesis. No other, conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, and the facts must be absolutely incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

Where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof, and the trial court should have directed a verdict of acquittal. Because the verdict is contrary to the law and the evidence, the judgment appealed from is reversed.

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


author: PER CURIAM.

text:
    E. GORDON v. STATE.
    No. A-8874.
    July 26, 1935.
    (48 Pac. [2d] 1119.)
    Homer Bishop and David Tant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of the larceny of an automobile, and his punishment assessed at a term of five years in the state penitentiary at McAlester, and appeals.

The record in this case was filed in this court on March 19, 1935; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The case-made does not contain any of the evidence taken at the trial. The case is therefore affirmed.


text:
    WILL SMITH v. STATE.
    No. A-8878.
    July 26, 1935.
    (48 Pac. [2d] 1119.)
    Will Smith, pro se.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of conjoint robbery, and sentenced to imprisonment in the state penitentiary for a term of fifty years.

The record in this case was filed in this court on the 22d day of March, 1935; no brief has been filed in support of the defendant's assignment of errors. A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

Considering the facts and circumstances as disclosed by the record, we believe the sentence is excessive and should be modified from a term of 50 years' imprisonment to 25 years’ imprisonment, and, as modified, the judgment is affirmed.


text:
    BUN RILEY v. STATE.

      No. A-8859.

      July 12, 1935.
    Rehearing Denied July 26, 1935.
    (49 Pac. [2d] 813.)
    W. L. Lackey and Tom G. Haile, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., and Frank Watson, Asst. Co. Atty., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Pittsburg county and his punishment fixed at death. In the latter part o-f June, 1934, three young men, Hobart Watkins, Homer Beasley, and Bill Gann were shot and killed near the little town of Canadian. The three were killed in the same manner; that is, by a single discharge of a shotgun. In each case the shot took effect in the side or back part of the head, and in each case death was instantaneous. The defendant and these young men had grown up and had gone to school together. All were approximately of the age of 25 years, and were close companions. After Watkins, Beasley and Gann were missing for a day or so, search was instituted and the bodies were found in the timber away from any road. The body of Beasley was first found; he evidently had been killed while sitting down, as the shot ranged downward. The body of Watkins was about 100 yards from that of Beasley. Evidently he had been standing up when killed, as the shot ranged straight through the head. About 200 yards away the body of Bill Gann was found, and from the range of the wound he had evidently been lying down when shot. The physical facts indicated that Beasley and Watkins had been killed probably a day before Gann was killed. Watkins had a .38 caliber pistol in his pocket; the other two were unarmed. Defendant was tried for the murder of Gann, but from the relations of the parties, the statements and confessions and the surrounding circumstances, evidence of the death of the three was admitted in evidence. After the finding of the bodies an information was filed June 30th, charging defendant with the murder of Gann. He was arraigned before a magistrate on July 5th, pleaded not guilty, and a preliminary was set for July 13th. On July 8th, he made a written confession admitting the killing, of the three and giving as his reason that he and the three had been mixed up in many crimes, and that they had tried to put the blame on him. He stated the circumstances of liow be took Beasley and Watkins into tbe woods on Friday and killed them, and that be enticed Gann into tbe woods on Saturday and killed him. On July 13th, defendant made another confession. In this he stated, in substance, that bis part in tbe killing was forced on him; that two men who lived in Canadian and whose names be refused to give, met him and Watkins near the place where the body of Watkins was found; that they took defendant’s gun and they then marched Watkins into the woods and he heard the shot that killed him; that later the two men forced Beasley to go into the woods and he heard the shot that killed him; that defendant met Gann the next mom: ing and sent him into the woods where he was killed; that defendant did not go with him for the reason he feared he would also be killed. On .September 22d, defendant made a third confession. In this latter confession defendant stated that one Jones Estes and Joe Wheeler took his gun; that Estes killed Watkins, and Wheeler killed Beasley; and that defendant procured Gann to go to a fixed place where he was killed by Estes and Wheeler; and that under compulsion from Estes and Wheeler defendant wrote a certain card which had been found near the body of Bill Gann, mentioning the killing of Watkins, Beasley, and Gann. While confined in the jail previous to his trial, defendant wrote a note to one Raymond England, a prisoner in the jail, suggesting that England write a note purporting. to be from one Baker, admitting that Baker did the killing. He furnished England a form for that purpose. He requested that England then kill Baker, so it would appear Baker had committed suicide. This note was intercepted by the jailer. A part of it reads:

“Say, England, do you remember what we was talking about the other day in regards to Baker, this is a lot to ask of a friend but if you will do this for me it will keep my ass frome burning and I can do a hole lot for you and will do anything I am bigger nuff to do — you know what I mean dont you its about that note admitting he done everything by his self Thank it over and let me no Soon Please, Bun. Say Granite if you will do that for me i will get you out on bond are i will buy you a pair of shoes and put some blades in them and mail them to you and if you want anybody bumped off thats against you i will do that for you i will show you what a friend is. Baker is going out Monday so you could do it to nite you could get that knife and put it to him and i can fix up a note and we will both be out in a week so let me know so I can fix up that note. * * * Granite, do that for me and i will do anything you want-me to do * * * have him to rite his mothers name and address, and you rite that note over just like i rote it because they no my hand riting and rite it just like he rites so we will be in the clear. * * * I mean Will you get rid of Baker for me you can hang him are any way to get rid of him if you Will it will mean a lot to me so let me know and I will fix up a note a clear my self and i will fix you up and get you out some way please let me know what you thank about it. * * *”

This was competent. Bruner v. United States, 1 Okla. Cr. 205, 96 Pac. 597; Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253; Dickey v. State, 86 Miss. 525, 38 So. 776. Defendant did not take the stand, but introduced some evidence tending to prove alibi.

Defendant first argues that the evidence is insufficient to sustain the judgment. Upon this point the argument is made that the conviction rests on the confessions made by defendant, and the letter written to England, and a card found near the body of Gann that the confessions cannot be true. There is ample proof of the corpus delicti and of defendant’s connection with the killing; there can be no reasonable doubt but that defendant premeditatedly and deliberately killed Gann; that as a part of the same plan and with the same motive be also killed Watkins and Beasley. Tbe letter written to England, in which he planned and attempted to have brought about the death of Baker in order to shift the crime to him, shows defendant to be a coldblooded, heartless murderer.

Defendant’s counsel next argue the court erred in overruling their motion for new trial on the ground of newly discovered evidence. This newly discovered evidence seeks to strengthen the evidence of alibi. This additional evidence has little significance. In the light of the entire record it is clear that evidence, had it been before the jury, would not have affected the verdict. This court has repeatedly held a motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court and its ruling thereon will not be disturbed except for an abuse of discretion. We are clearly of the opinion there was no abuse of discretion. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Harper v. State, 7 Okla. Cr. 581, 124 Pac. 1116; Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; Campbell v. State, 37 Okla. Cr. 321, 258 Pac. 357; McKinney v. State, 18 Okla. Cr. 562, 196 Pac. 974; Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253.

Next, contention is made that the special prosecutor commented on the failure of the defendant to testify. On this assignment counsel relied on the provisions of section 3068, Okla. St. 1931, and on various decisions of this court. Teer v. State, 10 Okla. Cr. 651, 135 Pac. 1198; Brown v. State, 16 Okla. Cr. 155, 181 Pac. 318; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57. Upon this point it appears that the special prosecutor said in the course of the argument: “Bun Riley knows what he was doing during those two hours; any of you men would know what you were doing.” Thereupon counsel objected and made a record. The special prosecutor then explained to the court in substance that in the attempt to prove the alibi there were two hours of time unaccounted for, and that what he was saying when interrupted was that defendant could have advised his attorneys where he was during those two hours, immediately after they were appointed, and that he did not comment on the failure to testify. The entire argument is not before the court, and it requires a liberal presumption to infer that this argument was that defendant had not testified. We are unable to tell whether or not the preceding argument on the proof of alibi disclosed or attempted to explain the two- hours when the whereabouts of defendant was unaccounted for and that this was a legitimate answer to such argument. At another part of the argument counsel said: “The only man who knew anything about Jones Estes was our silent man over here. He didn’t tell anybody. He didn’t let anybody.” Here he was interrupted by an objection which was sustained by the court. This is the only part of the argument set out. No showing was made or attempted before the court to explain the context of this single remark. It does not appear at what stage of the argument it was made, whether in the opening address, at some intermediate stage, or in the closing. We are asked to presume the use of the word “silent” constitutes a comment on defendant’s failure to testify. But the evidence is, as above stated, that in defendant’s second confession he claimed two men forced him to assist in the homicide, but he refused to name them. Some of the evidence upon this point is:

“Q. Did Bun Riley at the time he made this statement in your presence state whether or not there was anybody else involved in the commission of the crime of killing Bill Gann- and Watkins and Beasley? A. He did. * * * Q. Was he asked at that time to state who those men were? A. He was. Q. Was be asked more than once to state who they were? A. He was asked several times. * * *Q. What did he say in reply to those questions? A. He said if these men didn’t tell it themselves it would never be told; that he would give no' name whatever. Q. And did he in yonr presence there make answers to a question concerning how the killing of Watkins and Beasley took place and also how the killing of Gann took place? Did he make answers to those questions in your presence? A. He did. * * * Q. Did he say anything about whose gun they killed the two' boys, Beasley and Watkins, with? A. Yes, he did. * * * Q. Whose gun did he say these men were killed with? A. Bun Biley said that it was his own gun that was used. Q. Whose gun did he say was used in killing Bill Gann? A. He said it was his own gun; Bun Riley’s gun. Q. Did he state whether or not on Monday morning following the killing if he met the killers whom he would not name in the trial in these woods? A. Yes, he did. * * * Q. And did he in that statement at that time ever name who it was that he had that conversation with? A. Never. Bun Riley never named the man— Q. Did he refuse to name either one of the men that he said helped in the commission of the crime? A. Yes, he refused to. * * *”

In a confession more than two months later, he said these two men were Jones Estes and Joe Wheeler. These confessions were in evidence. Counsel had a right to argue their truth or falsity. To say in the argument in effect that the only man who knew anything, about Jones Estes being connected with the killing was this man who remained silent all this time and did not tell any one or let any one know about it, is not a. comment on the failure of defendant to testify at the trial, but a comment on the evidence that he kept it a secret all that time. Section 3068, Okla. St. 1931, has been many times construed by this court and similar statutes in other states. It is not to be construed to prevent a fair argument of the testimony and if it is claimed to have been violated, the record must so show, a presumption will not be sufficient. See in this connection McDaniel v. State, 35 Okla. Cr. 425, 250 Pac. 804; Brannon v. State, 33 Okla. Cr. 206, 243 Pac. 259; Keith v. State, 43 Okla. Cr. 229, 277 Pac. 1037; Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644; Johns v. State, 55 Okla. Cr. 100, 25 Pac. (2d) 716.

Upon a consideration of the entire record, we find no material error. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Pittsburg county be carried out by electrocution of the defendant on the 20th day of September, 1935.

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