text:
    BOB HAYES v. STATE.
    No. A-9151.
    March 12, 1937.
    (65 Pac. [2d] 1242.)

      J. M. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for tbe state.
   DAVENPORT, P. J.

Tbe plaintiff in error was by information charged jointly with Lnther Bradshaw, of the larceny of a hog; was tried separately, convicted and sentenced to' serve a term of five years in the state penitentiary. The plaintiff in error will hereafter be referred to as the defendant.

An abstract of the testimony is as follows: Bob Hayes and Luther Bradshaw lived within about three-quarters of a mile of each other; a man by the name of W. P. Moore also lived in a half a, mile of the defendant Bob Hayes; Moore owned some hogs; on or about the 20th day of January, 1936, Moore missed one of his hogs and started out to try to find it. In the meantime the sheriff had been notified of Moore’s hog being missing; he learned a carcass of a hog had been placed in cold storage at the city of McAlester, that the carcass had been skinned, and the head and feet cut off. Further information disclosed that Luther Bradshaw, accompanied by the defendant, had sold the carcass of a hog to a butcher in Savana, for $9.40, and the butcher placed the carcass in cold storage at McAlester. The butcher’s testimony shows he paid Luther Bradshaw $5 in money, and credited the account of the defendant Bob Hayes for $2.20, owing them a balance of $2.20.

Later on the sheriff went out and arrested the defendant and took him to jail at McAlester; and also had Luther Bradshaw up there. When the defendant told his version of what took place, the sheriff and others went with the defendant and he showed them where the head, feet, and hide of the hog had been buried. They took it up and examined it and claimed it was off of a red hog, the same color of hog that Moore had reported missing.

The testimony on behalf of the state further shows that on the day prior to the day Moore missed one of his hogs, Moore went to the defendant’s home and wanted to borrow a gun for the purpose of killing a hog, as Moore says, for a man by the name of Turner, but the defendant says he wanted to kill a hog of his own; Moore says the defendant told him he could not let him have the gun as he was going hunting, but the defendant says he told Moore he had promised to kill a hog for Bradshaw, and if he would wait until he had his breakfast he would! go down with Moore and kill his hog and go on and help Bradshaw; that Moore said he would kill his with a hammer.

The defendant in his testimony denies he knew this was a stolen hog; that he believed it belonged to' Bradshaw, and did not learn any better until after the hog had been killed. He further testified that he stated he knew nothing about the hog because he had promised Bradshaw he would not tell. The defendant admits he shot the hog that Moore claims was his, and that Bradshaw stuck it; then they skinned the hog and cut its head and feet off, and took the carcass to Savana, and sold it to the butcher. The defendant denies he had any interest in the hog and had nothing to do with selling it, and was only assisting, Bradshaw with the hog. No testimony was offered by the defendant to show that Bradshaw Avas the owner of the hog, or where Bradshaw got the hog. One of Moore’s hogs was missing, the weight of the hog being about 160 pounds. The carcass that was sold to the butcher, after it was skinned, and the head and feet cut off, weighed 94 pounds.

As well as it could be ascertained, the testimony of the state shows that the hide, head, and feet cut off the hog was the same kind, of a hog that Moore lost.

The foregoing is in substance the testimony offered both for the state and the defendant.

The defendant has assigned and argued several errors as grounds for reversal. The first error argued by the defendant is:

“That the court erred in overruling the defendant’s demurrer to the information.”
“An information is sufficient which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense.” Scott v. State, 40 Okla. Cr. 296, 268 Pac. 812.

The test of the sufficiency of the information is not whether it might have been more certain, but whether it alleges every element of the offense needed to be charged! to sufficiently apprise the defendant of what he must be prepared to meet. Ellis v. State, 38 Okla. Cr. 243, 260 Pac. 93.

The court did not err in overruling the demurrer of the defendant to the information.

The defendant next urges that the evidence is insufficient to sustain a sentence of five years. The defendant practically admits every allegation in the information excepting tbe charge of stealing the hog. The defendant attempted to justify his actions by saying that Luther Bradshaw hired him to assist in butchering this hog. Bradshaw offered no testimony to show he was the owner of the hog, nor does the defendant call any witness to show the hog he shot for Bradshaw and helped him dress was a hog belonging, to Bradshaw.

The record shows the defendant accompanied Luther Bradshaw to Savana to sell the carcass to the butcher; was with him on the road near Savana when he was arrested; and he directed the parties to' the place where the hide, head, and feet were buried. Every circumstance and fact points to the guilt of the defendant. The evidence is sufficient to sustain a conviction.

The defendant further urges that he was entitled to a continuance upon his showing made as to- what he could prove by the absent witness, if present. The showing made by the defendant would have tended only to contradict W. P. Moore, one of the state witnesses, and the defendant, as the defendant did not remember whether W. P. Moore, the man who lost the hog, had stated that he had his hogs in a pen.

A motion for continuance is addressed to the sound-discretion of the trial court. When the testimony of the witnesses would probably not change the result, it is not error to' overrule the application. Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308.

If the absent witness for whom the continuance was asked had been present and testified to the facts set forth in the application of the defendant for a continuance, in the opinion of the court it would not change the result. There is nothing, in the record to show that the court abused its discretion. The motion for continuance was properly overruled.

The defendant has assigned other errors, but after a careful consideration of the record we hold they are without merit. The testimony in this case conclusively shows that Luther Bradshaw and this defendant willfully butchered the hog belonging to' the prosecuting witness. Under the evidence the jury could not have done otherwise than have found the defendant guilty.

The defendant was accorded a fair and impartial trial. The instructions of the court taken in their entirety correctly advised the jury as to' the law applicable to the facts. There is no error in the record warranting this court in reversing this case and sending it back for a new trial.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    COLUMBUS TAYLOR v. STATE.
    No. A-9149.
    March 12, 1937.
    (65 Pac. [2d] 1233.)

      Speakman & Speakman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the state.
   DAVENPORT, P. J.

The plaintiff in error will hereafter be referred to as defendant. The defendant was charged by information with first-degree rape; was tried, convicted, and sentenced to serve a term of 15 years in the state penitentiary, from which judgment and sentence he appeals.

The rape charged against the defendant is stated to have been committed on one Wanda Bales, a girl 13 years of age, who was the stepdaughter of the defendant. The state called three witnesses. The prosecuting witness, Wanda Bales, testified she had had intercourse at various times with the defendant, and that she was under 13 years of age.

Dr. D. W. Dickerson examined the prosecutrix and testified his examination disclosed that the prosecutrix had had intercourse with some one.

Mrs. Myrtle Hunter testified she knew the prosecu-trix and the defendant; she had been the Sunday school teacher of the prosecutrix for some time. Over the objections of the attorney for the defendant, she was permitted to testify that some time before the defendant was arrested for this offense Wanda Bales came to her with the treatment of her by the defendant, and told her the defendant, Columbus Taylor, would not permit her to return to Sunday school for the reason of her wrongful acts of sexual intercourse with him. Mrs. Hunter was permitted by the court, over the objection of the defendant, to give in detail a conversation had with the prosecutrix, Wanda Bales.

The defendant, testifying in his own behalf, denied he had ever had' intercourse with the prosecutrix, Wanda Bales, and offered some testimony to- show that the charge against him was for the purpose of his wife getting a divorce. .Some witnesses were called to show that the defendant was a hard working man, and had previously borne a good reputation in the community in which he lived.

On cross-examination of the character witnesses the state asked if they knew the defendant had been sent to' Leavenworth, Kan., to' the federal penitentiary for a term of two> years on a charge of having used the mails to defraud, and answered they did not. The foregoing, is the substance of the testimony.

The defendant has assigned five errors alleged to have been committed by the court in the trial of his case. The second assignment being:

“Error oí the court in admitting the testimony of Mrs. Myrtle Hunter. Said testimony being purely hearsay, a self-serving declaration upon the part of Wanda Bales, and made out of the presence of the plaintiff in error, and being admitted to the jury over the objection and exceptions of the plaintiff in error.”

This assignment is the only assignment argued in’ the brief of the defendant. It is urged by the defendant that the following testimony of Mrs. Myrtle Hunter, admitted over the objection of the defendant, was prejudicial to his rights.

“Q. I will ask you, Mrs. Hunter, if Wanda came to you and told you what had been going on between her stepfather and herself here a short time back. Did she come to you with her story, just answer yes or no. A. Yes. Q. She did. You have known Wanda real well, have you not. You have known the little girl intimately, have you not? A. Yes. Q. I believe she calls you ‘Aunty Myrtle,’ isn’t that correct? A. Yes. Q. You are not related to her, are you? A. No, sir. Q. Will you just detail, please, to the jury the circumstances under which this little girl came to you and told you what she did? Mr. Shidler: To which the defendant objects on the ground that it is incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Shidler: And out of the presence of the defendant and calling for hearsay testimony. The Court: I think you had better fix the time and place on that. With that condition the objection will be overruled. Mr. Shidler: Exceptions. Mr. Gilmer: Q. Where did this conversation take place? A. Must I tell it? The Court: Answer this question first. Q. Where did this conversation take place between you and Wanda? A. At my home. Q. About how long ago, just as near as you can remember, Mrs. Hunter? A. Well, I judge it has been about eight months ago. Q. Now will you tell the jury please, just what she said to you at that time? A. I said, Wanda, you have come back to- West Tulsa; won’t you come back to Sunday school?’ She said, ‘Aunty Myrtle, daddy won’t let me.’ I said, ‘Yes, he will.’ She said, No, daddy won’t let me go to Sunday school.’ Mr. Shidler: Yóur honory we object to that testimony and move that it be stricken, first, as not tending to prove or disprove any issue in this case or shed any light on the facts. The Court: Of course, this part of the conversation with her is not, but it is part of the entire conversation. It will be overruled. The objection will be overruled. Mr. Gilmer: Go* right ahead please.' A. She said, T have been a naughty girl.’ She said ‘I have been an awful naughty girl.’ She said, ‘Aunt Myrtle, if I go back to Sunday school, will God forgive me for what I have done?’ I said, ‘Yes, Wanda, if you go back to Sunday school and get down on your knees and pray to God, and ask God to* forgive you for what you have done, and not do it any more, God will forgive you.’ Q. Did she tell you what she had done that was wrong? A. She said — I said, ‘Why Wanda, what did you do, honey?’ She said, ‘Daddy used me just like he did mother.’ Q. And then what did you do, Mrs. Hunter? A. I went and told her mother.”

In Bouie v. State, 9 Okla. Cr. 345, 131 Pac. 953, 955, this court in the body of the opinion said:

“It is admissible to show by the testimony of the prosecutrix or other witnesses, in corroboration of her testimony, that complaint was made shortly after the commission of the alleged offense, and when, where, and to whom it was made, but by the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony unless the statements are part of the res gestae.”

In Chastain v. State, 46 Okla. Cr. 123, 287 Pac. 826, this court in the first paragraph of the syllabus said:

“It is not possible to define the term res gestae by any exact definition which will fit all cases; the term, in a general way, may be defined as the circumstances, facts, and declarations that grow out of the main fact, and shed light upon it, and tend to explain it, and made at a time so near, either prior or subsequent to the main act as to exclude the idea of deliberation or fabrication.”

The testimony in this case is uncertain as to what time it is claimed by the state the prosecutrix told the witness Myrtle Hunter of the alleged sexual intercourse between the defendant and herself. As the testimony fails to show a definite date as to when this complaint was made, this court holds that the testimony presented by the state, by the witness Myrtle Hunter, is not a part of the res gestae.

In State v. Hunter, 18 Wash. 670, 52 P. 247, 248, the Supreme Court of the state of Washington said:

“After a pretty thorough examination of the cases, we think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character.” Citing many authorities.

In People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098, 1099, the California Supreme Court said:

“On a prosecution for assault with intent to commit rape, proof of the fact that prosecutrix made complaint-may be given in evidence by the testimony of prosecutrix herself, or that of the persons to whom she made complaint, but the details of the complaint may not be shown.” State v. Aldrick, 97 Wash. 593, 166 Pac. 1130; People v. Avila, 50 Cal. App. 228, 194 Pac. 768.

In State v. Hoskinson, 78 Kan. 183, 96 Pac. 138, the Supreme Court of Kansas, in considering a case where the facts are very similar to the case being considered by this court, in which the prosecutrix was a girl thirteen years of age who had made the complaint to some third parties who were permitted to' relate the details of her story to the jury, the court in reversing the case in the second, paragraph of the syllabus said:

“The rule admitting in evidence, in trials for rape, tbe complaints of the injured person concerning the alleged offense upon her, is ordinarily limited to1 the fact that such complaints were made; the details being excluded. Such testimony is admitted upon the theory that, if she made no complaint of such an outrage, her silence might be construed as evidence that it had not occurred.”

In the case of State v. Fowler, 13 Idaho, 317, 89 Pac. 757, the Supreme Court of Idaho said:

“In a prosecution for rape, the state may prove by the prosecutrix and other witnesses that she made complaint soon after the commission of the alleged act, and show •when, where, and to whom, and under what circumstances she made complaint, and her appearance, demeanor, and physical condition at the time she made complaint. But the details of the conversations * * * may not be given by the witness.”

In Dickens v. People, 60 Colo. 141, 152 Pac. 909, the Supreme Court of Colorado' said:

“Complaint of a victim of an assault with intent to rape is admissible in evidence only as to the bare fact of complaint, and the details thereof are not admissible.”

The crime for which the defendant was tried is a grave charge, one easy to> make and difficult to disprove. If the testimony of the prosecutrix is true, no punishment would be too severe, and no decent law-abiding citizen could refrain from condemning and censuring the defendant. It is horrible to> think of a man of the defendant’s years being charged with having sexual intercourse with a mere child. Notwithstanding the charge against the defendant, the fact yet remains that he is entitled to a fair and impartial trial under the laws of our state, and when it is shown that he failed to receive that kind of a trial, and evidence admitted which was detrimental and prejudiced the rights of the defendant, this court must say the defendant was not accorded a fair and impartial trial according to law.

There are other errors assigned, but the view we take of this record it is not necessary to consider them. The admission of the testimony of Mrs. Myrtle Hunter, in which she details the conversation with the prosecutrix, over the objection of the defendant, was improper and deprived the defendant of a fair and impartial trial guaranteed to' him by the laws of the state of Oklahoma.

For the reasons stated, the case is reversed and remanded, with directions to' the lower court to proceed with the case not inconsistent with this opinion.

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


author: BAREFOOT, J.

text:
    RALPH J. HUTCHMAN v. STATE.
    No. A-9029.
    March 12, 1937.
    (66 Pac. [2d] 99.)

      Jess L. Ballard, O. H. Searcy, Jno. M. Goldesberry, and Gerald B. Klein, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Frank L. Haymes, Co. Atty., and Edward H. Brady, Asst. Co. Atty., for the State.
   BAREFOOT, J.

Plaintiff in error, hereinafter referred to as defendant, was jointly charged by information, with E. M. Landrum, county treasurer of Craig county, with the crime of embezzlement. A severance was demanded and granted. E. M. Landrum was first tried, convicted, and sentenced to serve a term of five years in the state penitentiary and pay a fine of $32,086.55. He appealed to this court and his case was affirmed and is reported in Landrum v. State, 60 Okla. Cr. 259, 63 Pac. (2d) 994.

Defendant was then tried, found guilty, and convicted by the jury, who stated that they could not agree on the punishment and requested the court to assess the same. The court assessed punishment at five years in the penitentiary and a fine of $70,173.10. From this judgment and sentence, defendant has appealed.

The first assignment of error is:

“The trial court erred in its refusal and failure to sustain the defendant’s demurrer to the information.”

This was the first error considered in the Landrum Case by Special Judge Gibson, and was decided adversely to the contention of the defendant.

We have carefully examined that case and the authorities cited, both by the defendant and the state, in their briefs in this case, and we see no reason why the court should now change its views upon this proposition. The information is quoted there and for brevity will not be repeated here. It charges the offense of embezzlement under section 7761, Okla, Stats. 1931 (19 Okla. St. Ann. § 641), which is also quoted in full in the Landrum Case. This is a special statute, enacted by the Legislature, and designed to reach public officials who hold or divert public funds and securities, or funds held by such officers offi-daily belonging to private individuals or to firms or corporations in violation of a public trust and against those who shall advise, aid, or assist in any manner or knowingly participate in such action.

The information in this case, among other things, alleged that the defendant, E, M. Landrum, was charged and intrusted with the “collection, receipt, safe-keeping, transfer, and disbursement of all public money belonging) to the county of Craig and the state of Oklahoma, andl to divers persons, firms, and corporations, their names being unknown, and of all other funds, property, bonds, securities, assets, or effects of any kind received, controlled, or held by him by virtue of his said office as such county treasurer, and which public money and other funds, property, bonds, securities, assets, and effects were received and held by him for saidL county of Craig and state of Oklahoma, and municipal subdivisions of said county and divers persons, firms, and corporations their names being unknown.” The information further charged:

“That the defendant, E. M. Landrum and Ralph J. Hutchman, while acting together, embezzled a part of said, public money, bonds, etc., the sum of and to the amount of |35,086.55, good and lawful money of the United States of America, a more particular description is as follows, to wit: (a specific description of the property and the value thereof and the municipalities owning the same are stated therein) and other public money, funds, property, bonds, securities, assets, and effects, a further description being unknown and the value thereof being unknown. x -x

It will thus be seen that the information charges the names of the municipalities whose bonds the county treasurer held and the value thereof and then charges that the defendants Ralph J. Hutchman and E. M. Landrum then and there, acting together willfully, unlawfully, wrongfully, and feloniously, did convert and appropriate to tbeir own benefit and to a use and purpose not in the lawful execution of the aforesaid trust of him the said E. M. Lan-drum, county treasurer of Craig county, Okla., a part of said public money, etc.

While under the general embezzlement statute it is generally stated to be the rule that it is necessary to' state the name of the party who is the owner of the property, yet a distinction is made where public officials hold this property as public officers, and where special statutes exist requiring that certain funds be deposited with them as public officers. The authorities of this state and others clearly make this distinction. Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18; State v. Harris et al., 47 Okla. Cr. 344, 288 Pac. 385; State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093; Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728.

The above cases review the statute in question and hold that an information substantially in the wording of the statute will be upheld. This is a statute specific in its nature and not a part of the General Crime Code.

Counsel for defendant, in their reply brief, say, “The statute expressly so provides, for it says: ‘If any person shall advise, aid or in any manner knowingly participate * * which would not only indicate but expressly provides that such person must participate in the unlawful acts of the officer ‘knowingly’. This allegation is not in the information. Nowhere in the information does it allege or charge that the defendant knowingly participated in any of the alleged unlawful acts, or that he knowingly aided or abetted the county treasurer in any unlawful act,” and contend that it was necessary for the information to allege that the act was knowingly done or that he kno w-ingly aided or abetted therein. In the first place, it is alleged in the information in the first part thereof “* * * that the defendants, E. M. Landrum and Ralph J. Hutch-man, in the county and state aforesaid, did knowingly, willfully, unlawfully, wrongfully and feloniously commit the crime of embezzlement.” In the charging part of the information, it is alleged that the defendants “willfully, unlawfully, wrongfully, and feloniously converted and appropriated to their own use and benefit” leaving out the word “knowingly” in the charging part of the information.

We think that by alleging that the defendant willfully committed the act is the same as charging that he knowingly committed the act. These words are used interchangeably and both convey the same meaning.

In the case of State v. Rickenberg, 58 Utah, 270, 198 Pac. 767, 768, the court says:

“In support of its contention appellant insists that the information states facts sufficient to constitute the offense defined in the statute above quoted; that the word ‘willfully’ is of similar import as the word ‘knowingly,’ and is the same in substance and effect.
“Many authorities are cited in support of this contention. See especially Ex parte Cowden, 74 Tex. Cr. R. 449, 168 S. W. 539; State v. Muller, 80 Wash. 368, 141 Pac. 910; Fry v. Hubner, 35 Ore. 184, 57 Pac. 420.
“The following excerpts from Words and Phrases, which are supported by numerous cases, illustrate the almost universal trend of judicial opinion. We quote from volume 8 [First Series], pp. 7474 and 7475:
“ ‘ “Willfully” is equivalent to “knowingly.” ’
“ ‘The term “willfully” implies that the act is done knowingly.’
“ ‘The word “willfully” implies, on tbe part of the wrongdoer, knowledge, and a purpose to do the wrongful act.’
“ ‘ “Willfully,” as used when saying that an act was willfully done, implies that the act was done by design; done for a set purpose; and it would follow that it was knowingly done.’
“ ‘ “Willfully,” as used in connection with an act forbidden by law, means that the act must be done knowingly or intentionally, and that the act was committed with knowledge, and that the will consented to, designed, and directed the act.’
“ ‘In common parlance “willfully” is used in the sense of “knowingly,” as distinguished from “accidental” or “involuntary.” ’
“ ‘A “willful failure” to comply with the provisions of the mine law means that there must have been some knowledge that the party was violating it; some knowledge which should have induced him not to do what he did do; some knowledge of the fact.’
“ ‘An indictment for perjury which charged that the defendant “feloniously, willfully and corruptly did depose,” etc., but omitted the word “knowingly,” is not bad on account of the omission of such word, though it is used in the statute.’
“ ‘The word “willfully” as used in the statute punishing perjury, the same being “a false statement willfully made,” is synonymous with “knowingly.” ’
“Many other pertinent paragraphs might be quoted from the pages referred to.
“In the Second Series of Words and Phrases, vol. 4, at page 1304, we find the following:
“ ‘The word “willfully” implies the doing of an act knowingly, and with stubborn purpose.’ ‘A “willful act” is one that is done knowingly and purposely.’
“See other paragraphs in the same connection.
“As before stated, these paragraphs seem to be supported ¡by abundant authority cited in connection therewith, many of which cases we have carefully examined and find that they faithfully support the text.
“In our view of the law, both from the standpoint of . reason and authority, the question is hardly debatable. To say that a thing can be willfully done without knowing it is, on its face, paradoxical, and manifestly contradictory and untenable.”

See, also, Joyce on Indictments, p. 374, § 3'38.

From the above statement, it will be seen that there is no1 conflict between the Oklahoma cases as pointed out in defendant’s brief. In addition to this, the court in instruction No. 8, in this case, instructed the jury “* * * that any person who shall advise, aid or in any manner knowingly participate in the conversion, or using by way of investment, or loaning the public funds held by any public officer by virtue of his said office, is guilty of the same crime as the officer.”

We do not think the information is duplicitous as contended by the defendant in that it charged two offenses against defendant. This question was settled in the Lan-drum Case.

The third and fourth assignments of error are that the court erred in overruling defendant’s demurrer to the evidence, and that the jury was not warranted in finding the defendant guilty.

The facts in this case show that one E. M. Landrum became county treasurer of Craig county in January, 1931, and remained as such treasurer until the 14th day of January, 1935. He at that time resigned. An auditor representing, a bonding company, who was making a bond for bis successor, began an audit of tbe boobs of tbe county treasurer’s office and upon finding certain discrepancies, and bonds missing, informed E. M. Landrum, and was told by bim that tbe defendant Ralph J. Hutcbman, a bond broker in Tulsa, bad tbe bonds, giving to tbe auditor a list of tbe bonds. Tbe defendant was located in Oklahoma City and came with tbe agents of the bonding company to Tulsa. There be met tbe county commissioners of Craig county, tbe sheriff, and tbe assistant county attorney, and others, and in their presence defendant stated that be bad received tbe bonds belonging to Craig county, Okla., from E. M. Landrum, tbe county treasurer, at various times, beginning about a year and a half before that time; that be bad sold tbe bonds, and if given time would pay Craig county for tbe same; that certain bonds belonging to Craig county were found in locked boxes in banks in Tulsa, belonging to tbe defendant; that defendant directed where said bonds could be found. These be voluntarily turned to tbe bonding company. Tbe evidence further shows that tbe defendant, on different occasions, bad sold bondsi belonging to Craig county to the city treasurer of Alva, Woods county, tbe county treasurer of Woodward county, Dr. L. D. Bagby, and Dr. C. S. Near, of Vinita, and others. Tbe evidence showed that for tbe bond sold to tbe county treasurer of Woodward county, a check for $10,090 was made payable to Hutcbman and Rogers. The defendant received the same, and nothing in the record shows that this money was ever returned to' Craig county. Tbe evidence further showed various checks issued to tbe defendant by tbe county treasurer, and tbe record does not disclose that money or anything of value was ever received therefor. Tbe evidence further shows that tbe sinking fund of Craig county and the school district sinking fund of said county bad a shortage of approximately $36,896.55 by reason of the loss of bonds and securities. The record shows many sales of bonds and. exchange of bonds by the defendant belonging to Craig county. The defendant did not take the witness stand in his own behalf, and no explanation was offered as to what he had done with the money received from the sale of the bonds of Craig county and especially the money received from the sale of the bonds to the county treasurer of Woodward! county. It is the contention of defendant that no fraudulent conspiracy wa.s shown to exist between defendant and E. M. Landrum, county treasurer of Craig county.

Upon the question of fraudulent conspiracy, this court, in construing section 7761, the section under which defendant was prosecuted, has held in the case of Cottrell v. State, 52 Okla. Cr. 375, 5 Pac. (2d) 178, that “the offense consists in the violation of the law, and not the intent or motive by which the public officer is actuated.” See, also, Harris v. State, 47 Okla. Cr. 344, 288 Pac. 385; State v. Trolson, 21 Nev. 419, 32 Pac. 930.

As to the contention of the defendant that the evidence did not show that he and1 Landrum, the county treasurer, “were acting together” and that no1 conspiracy was shown, it may be stated that the evidence did not show that they were present together and agreed as to what action should be taken as to the receiving and disposition of the bonds, but as a matter of fact the record discloses that the bonds were received by the defendant over a period of a year and a half; that they were received in Craig county; that they were sent to banks with the direction that the defendant be permitted to conduct the sale and exchange of the same; that these bonds belonging to the county were disposed of by the defendant; that often checks were made payable to him; and there was no accounting to Craig county for the proceeds, of the sale of many of the said bonds.

The contention of defendant, in his reply brief, that a distinction should be made as to a person who aids, abets, and knowingly participates with the officer charged by law with the safe-keeping of public funds and the officer himself who participates in the embezzlement of public funds was carefully considered by this court in the case of State v. Harris, supra. Under our statute, all persons concerned in the commission of crime, whether it be felony or misdemeanor and whether they directly committed the act constituting the offense or aided or abetted in its commission though not present, are principals, and section 2574, C. O. S. 1921 (22 Okla. St. Ann. § 432), provides that all distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present at the time of the commission of the crime, are principals. The evidence here shows a concerted action, or acting together, by the country treasurer and the defendant. There can be no question that under the statute the defendant aided, abetted, and assisted the county treasurer of Craig county in the sale and disposal of bonds which had come into his hands as a public official for safe-keeping. Not only does the evidence show this, but it shows the proceeds of said bonds went into the hands of defendant and the record does not disclose that these funds were ever returned to the county.

We think that the evidence clearly shows that the defendant participated in the conversion and appropriation of the proceeds of the bonds, of Craig county.

The courts of this country have- often held that it is not necessary that a conspiracy be proved by direct testimony, in fact, conspiracies are seldom susceptible to such proof. It is often proved by circumstances. We call attention to the case of Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112, 117, wherein the court says:

“A conspiracy, leading up to the commission of the crime charged, need not be established by direct evidence, but may and generally must be proved by a number of independent acts, conditions, and circumstances. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful' common purpose.
“It is not necessary to prove that the conspirators came together and actually agreed to pursue their purpose by common means, one performing one part and another another. If one concurs in a conspiracy, no1 proof of an agreement to concur is necessary to make him guilty. It is not even necessary that a person, to' be criminally liable, should be acquainted with the others engaged in the conspiracy, though to hold one liable as a participant it must be shown that he did some act or made some agreement showing his intention to' commit the crime; and one who joins the conspiracy after its- formation is liable as a conspirator just as much as those with whom the conspiracy originated. 1 R. C. L. 133; 5 R. C. L. 1088, 1063; section 2104, R. L. 1910 [21 Okla. St. Ann. § 172]; Spies v. People, 122 Ill. 1-12, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Robinson v. U. S., 172 F. 105, 96 C. O. A. 307; U. S. v. Newton (D.C.) 52 F. 275; Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90; Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047.”

The testimony in this case shows such “acting together” upon the part of the defendant and the county treasurer that a conspiracy existed between them for the purpose of selling bonds of tbe county for tbe purpose of defrauding said county. Under tbe law, where one is charged with crime, evidence is admissible to show a conspiracy to commit the crime charged although the conspiracy is not charged in the information. Mathews v. State, supra; Thomas v. State, 40 Okla. Cr. 204, 267 Pac. 1040.

It is next contended by defendant that the court erred in giving instruction No. 7, which is as follows:

“Therefore, you are instructed by the court that if you believe from the evidence submitted by the court for your consideration, beyond a reasonable doubt, that the defendant, E. M. Landrum, on or about the first day of July, 1934, was the duly elected, qualified, and acting county treasurer of Craig county, state of Oklahoma, and as such county treasurer was charged and entrusted with the collection, receipt, safe-keeping, transfer and disbursement of the public money belonging to said county of Craig, state of Oklahoma, and of divers persons, firms and corporations, and of all other funds, property, bonds, securities, assets or effects controlled or held by him, by virtue of his said office of county treasurer of said county of Craig, state of Oklahoma, for safe-keeping, transferring and disbursement and tbe said defendant, E. M. Lan-drum, was entrusted, charged with, and did, in said Craig county, state of Oklahoma, on or about the first day of July, 1934, receive, have and hold in his possession and! under his control as county treasurer, and for the purpose mentioned in the information, certain public money, funds, property, bonds, securities, assets or effects, of any kind, as alleged in said information, and that the said defendants E. M. Landrum and Ralph J. Hutchman, acting together, willfully, unlawfully, wrongfully, and felon-iously converted and appropriated to their own use and' benefit, and to a use and purpose not in the lawful execution of the trust of him the said E. M. Landrum, as county treasurer of Craig county, state of Oklahoma., sums of money, to wit:
“$1,048.67 City of .Sapulpa Bonds of 1922, due 1942,
“$9,000.00 Muskogee Bd and Ed Bonds due serially, 5-20-42 to 44,
“$2,037.88 Tulsa Park Improvement Bonds,
“$9,000.00 City of Sapulpa Bonds of 1922, due 1942,
“$7,000.00 Tulsa County Road Bonds, due 1942,
“$7,000.00 Town of Big Heart, (Barnsdall) W. W. Bonds, due 1944, “or any other public money, funds, property, bonds, securities, assets or effects, of any kind, as alleged in said information or any part thereof in excess of twenty dollars in value, then it would be your duty to convict the defendant, Ralph J. Hutchman, as charged in the information, and so say by your verdict. Unless you should so find, it will be your duty to acquit the defendant.”

We see no error in the giving of this instruction. Defendant contends that the instruction does not contain the words “fraudulent appropriation” and does, not define the terms “willfully,” “unlawfully,” “wrongfully,” and “feloniously.” In view of what has already been said, it will be seen that under the statute it is not necessary to have a fraudulent appropriation. The misappropriation of the funds intrusted to the care of the public official is all that is necessary. After he receives these funds, in the manner provided by law, it becomes his duty, under the law, to. see that they are safely protected. The above instruction is practically in the words of the information and the statute. We have examined the case of Brock v. State, 6 Okla. Cr. 23, 115 Pac. 1026, and other cases cited by defendant, and we do not think the instructions given in that case are applicable here. The instructions as a whole fully informed the jury as to- all the elements necessary to prove the crime of embezzlement under the provisions of the statute under which defendant was prosecuted.

It is next contended by defendant that the court erred', in permitting incompetent, irrelevant, and immaterial testimony and this is based upon the fact that the court permitted to be introduced an audit made by the state examiner and inspector’s office of the county treasurer’s office of Craig county. This audit was made in April, 1935, by an auditor who- had been an employee of the state examiner and inspector’s office as general supervisor of all the examinations of county officers since 1927. This report- was immediately filed in the office of the state examiner and inspector, and then withdrawn and filed in the office of the county clerk of Craig county. It wast subject to the inspection of defendant or his counsel. This case was not tried until May 31, 1935. The defendant had an opportunity to examine the original books and files in the county treasurer’s office, and, if desirable, could have had an auditor examine the same for the purpose of cross-examination.

It would have been impossible for the jury to' have intelligently passed on the books and records in this case without having an auditor who had examined them and! a report compiled as to what they contained. It is true that mere conclusions of such officer, not based on his official record, are inadmissible, but his official report and records in so far as they pertain to- the issues involved may be introduced as primary evidence, subject to- explanation or impeachment.

Extracts from many of the original books were introduced in this case in addition to> the auditor’s report. We think that the facts come clearly within the rule as announced in the case of Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, 732, wherein the court said:

“With the contention of defendant that the investigations, reports, and findings of this examiner and inspector were not the best evidence we cannot agree. This was a state officer, charged with the duty of examining the boohs and accounts of officers or custodians of state or county funds and making written reports thereof, to be filed and kept in his office, for the use of the executive department and others. Ample provisions are made to facilitate such examinations, so that the findings and reports will correctly state the facts. This officer, in our opinion, comes within the purview of section 5115, R. L. 1910 [12 Okla. St. Ann. § 502], as follows:
“ ‘The books and records required by law to be kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court.’
“This rule is a reasonable one, well calculated to meet the ends of justice. In this instance it would have been unreasonable to expect the jury to inspect, audit, and reach correct conclusions from the introduction of a great multitude of book entries, reports, receipts, and complicated documentary evidence. The average jury would be lost in a maze of complicated facts and figures, from which they might or might not make correct deductions. The state examiner and inspector is a disinterested, skilled accountant, with facilities for arriving at correct results, and his official written reports, it seems to us, under this statute should be received as primary evidence for what they might be worth. Of course, the correctness of his deductions may be challenged on cross-examination or by direct evidence to the contrary. Bradshaw v. State [18 Okla, Cr. 619] 197 Pac. 715; 22 Corpus Juris, ‘Evidence,’ p. 615.”

It is next contended that the court erred in receiving the verdict of the jury, and in rendering- judgment and pronouncing sentence thereon for' the reason that the jury found the defendant “guilty as charged in the information, but cannot agree on his punishment and asked the court to declare and assess his punishment,” it being contended that under section 7761, O. S. 1931 (19 Okla. St. Ann. § 641), “It is incumbent upon a jury, and upon a jury alone, finding a person accused thereunder to be guilty, to also find and state in the verdict the amount of the embezzlement; and that such is a necessary and requisite condition precedent before the court can acquire jurisdiction to render judgment and pronounce sentence based upon the jury’s verdict.”

In this case, the record shows that the form of verdict prepared by the court was submitted to counsel for defendant and by him declared to be satisfactory. The court instructed the jury, “in case you should find the defendant guilty but are unable to agree upon the punishment then you may so say in the verdict, and the court will assess and declare the punishment.” This instruction is in compliance with the statute, section 3108, O. S. 1931 (22 Okla. St. Ann. § 927), which reads:

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

The defendant did not except to the instruction, nor did he request that the jury be required to assess the punishment. After the verdict of guilty was found, it then became the duty of the court, under the statute, to determine the amount of the fine, which under the law constitutes a civil judgment, which is a lien upon the property of the defendant. The record does not disclose just how the court arrived at this amount.

Counsel for defendant, in their briefs, cite the case of Hogoboom v. State, 120 Neb. 525, 234 N. W. 422, 79 A. L. R. 1171, in support of their contention. In the report of this case, in 79 A. L. R., there is an annotation beginning- at page 1181 upon this identical point and the author of the annotation says:

“There is a substantial conflict of opinion on the subject of this annotation, both as between the several jurisdictions and Avithin the jurisdictions themselves, though the greater weight thereof is to the effect that a specific finding of value is not essential to a valid and sufficient verdict.”

On the same page it is further said:

“In the larger number of cases in which the question has arisen, it has been held that a general verdict such as ‘guilty’, ‘guilty as charged in the indictment’, ‘guilty of grand larceny,’ ‘guilty in the second degree’, etc., is sufficient, Avithout a finding of the value of the stolen property, to support a conviction of larceny or embezzlement, since where, under proper instructions from the trial court, the jury has found such general verdict, it can, by reference to the indictment and instructions, be made certain as to what value the jury must have found. These cases base their results on such principle even though the degree of the crime or the place and form of punishment depend on the value of the property.” Citing. cases from many states.

It will be noted that the cases supporting the minority view are cases from the Supreme Court of Illinois and Iowa which are referred to in defendant’s brief. It will also be noted that the Nebraska decision above referred to comes under the designation of those cases' which have a special statute requiring the jury to- ascertain and declare in their verdict the value of the property stolen, embezzled, or falsely obtained. Under a statute such as this, it is held to be a mandatory requirement to- the validity and sufficiency of the verdict that the jury ascertain, and declare the value of the stolen property in their finding when the degree of the crime or the range of punishment therefor depends on the value.

On page 1185 the annotator further states:

“So, where the statute makes cattle theft or larceny from the person, or larceny of an automobile, or embezzlement by public officers, and the like, a crime of a certain degree without regard to the value of the subject of the larceny or embezzlement, there need be no finding of value.”

In the case of Sims v. State, 54 Fla. 100, 44 So. 737, 739, it is held to be unnecessary for the jury to ascertain the value of property embezzled by a. public officer, since the guilt or innocence of such class of persons was not dependent on the particular amount which the property was worth, and the fact that the statutory punishment was “a fine equal to the value of the money,” in addition to imprisonment, was not a ground of complaint by the defendant, since he could not be harmed by the failure of the verdict to require him to pay a fine in addition to' the sentence of imprisonment.

In the companion case of Landrum v. State, supra, the court assessed a fine of $32,086.55. After careful consideration, we have decided to' reduce the fine in this case to the same amount. It is no part of the sentence to be served, but is only a judgment and lien upon the property of the defendant.

We have carefully examined the record and able briefs filed in this case and find that the defendant has had a fair and impartial trial and the judgment of the district court of Craig county is therefore modified and’ affirmed as above stated.

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


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    A. A. LINDE v. STATE.
    No. A-9138.
    March 26, 1937.
    (66 Pac. [2d] 527.)
    L. H. Woodyard and John W. Whipple, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Guy L. Horton, Co. Atty., for the State.
   BAREFOOT, J.

An information was filed in the district court of Payne county against the defendant, charging him with the crime of larceny of 45 turkeys. He was tried, convicted, and the court assessed his punishment at 15 months in the penitentiary. From this judgment and sentence, he has appealed to this court.

Among the errors assigned are: First. The evidence was not sufficient to sustain the conviction; second, that tbe court erred in refusing to give certain requested instructions.

These errors may be considered together. It is contended by the defendant that the evidence failed to show a criminal intent on his part and that the turkeys were taken by him in an honest belief that they were his own property and that he still believes them so to be.

After carefully reading the record in this case, we are of the same belief. The evidence showed that the defendant was a. farmer, living 9 miles northwest of Still-water, in Payne county; that he was farming 320 acres of land, and had resided there two years; that he had been a resident of Payne county for twenty-seven years; that he was married and had four children; that at the time this information was filed against him he was also extensively engaged in raising turkeys; that during the year 1935, he had raised approximately 400; that some time prior to the date charged in the information, dogs or wolves had scattered and separated them and he lost a large bunch of turkeys which he had raised; that on Monday, August 12, 1935, the same being, the day prior to the alleged offense, a neighbor woman called the defendant over the telephone and told him that there were some stray turkeys there, and asked him to come over and see if they were the ones he had lost; that in the forenoon of that day he and one of his sons went in a car with a neighbor to see if he could identify the turkeys; that upon seeing the son of the woman who had called him in a nearby pasture, he got out of the car and was informed by the boy that the turkeys were over at a neighbor’s place by the name of Mrs. Burke; that he then went over there and found a bronze turkey hen and, as they say, 49 young bronze turkeys, being the same color of the ones he had lost; that upon he and his son identifying the turkey hen and the smaller turkeys as being the ones that he had' lost, they drove them home along the public highway; that upon reaching home they were placed with their turkeys and he and his family testified that there was no fighting among them as was usual when strange turkeys are mixed; and that they knew where to go for feed and water.

On the Friday following, the prosecuting witness, a neighbor lady, -who had lost some turkeys, came to the home of defendant. She informed the defendant of her loss and asked him to let her see the turkeys he had driven from Mrs. Burke’s. The defendant showed them to her and told her after bringing them home he and the boys had marked them by cutting off one of the toes so that he would know them if they strayed away again. She made no examination of the turkeys at this time, but returned the next evening with one of her neighbors and asked to see the turkeys again. The defendant assisted in the catching of the turkeys so that she and her neighbor might examine them. There was nothing done by the defendant in any way to conceal the turkeys or to refuse to give her any assistance he could in the examination of them. She left without saying anything as to whether she identified the turkeys as hers, nor did she in any way make any demand of the defendant that he should turn them over to her. The first the defendant knew that she claimed they were her turkeys was when he was arrested' by reason of a warrant sworn out by her, charging him with the larceny of her turkeys.

There was evidence that the turkey hen that she lost had a chain around her leg and a ring around her neck. Defendant testified and also his son and others that the one that he drove home did not have this ring and chain. There was also evidence with reference to the turkey which she lost of having had one toe cut off and also of tracks around certain watering places that showed that turkeys had watered there and the tracks indicated that they had one toe cut off. Evidence to these tracks was conflicting. The defendant, his son, and members of his family positively identified the turkeys which he recovered as being the ones he had lost. At the trial of this case, he still contended that they were his.

The talcing of the turkeys was in the daytime, with knowledge of others that they had been taken. The defendant at no time did anything to conceal the fact that he had taken them. I-Ie assisted the prosecuting witness in examining them and she at no time made demand for their return to her as her property.

It was the contention of the defendant in his evidence that the turkeys belonged to him and were his property at the time they were taken. Many neighbors testified toi his good character and reputation in the community where he had resided. There was some testimony as to his having a bad reputation, but this was mostly from those with whom he had had some kind of controversy.

From the reading of this record, we cannot but come to the conclusion that it does not show any criminal intent on the part of the defendant to commit the crime of larceny.

This court has often said that felonious intent is an essential element in larceny and the state must prove beyond a reasonable doubt that the property was taken with such intent. This is also' the general rule in larceny cases.

In announcing, this rule, this court, in an opinion by Judge Davenport, in the case of Lansdale v. State, 45 Okla. Cr. 123, 282 Pac. 170, 175, quoting from 36 C. J. § 105, page 764, says:

“If one in good faith takes the property of another believing it to be legally his own, or that he has the legal right to its possession, he is not guilty of larceny although his claim is based on a misconception of the law or his right under it. For although ignorance of law and honest intention cannot shield a man from civil liability for the trespass committed by him, yet they do protect him from criminal liability by divesting the act of the felonious intent, without which it cannot be a crime.”

See, also, Lockhart v. State, 10 Okla. Cr. 582, 139 Pac. 1156; Smith v. State, 10 Okla. Cr. 544, 139 Pac. 709; Sisson v. State, 16 Ariz. 170, 141 Pac. 713.

We have examined the authorities cited by the Attorney General in his brief in this case and do' not think they are in any way in conflict with the rule announced above.

It was the contention of the defendant that his taking of the- turkeys was in good faith, believing at the time they were his. He offered a requested written instruction, asking the court to inform the jury that if at the time of the tailing of the property by the defendant he in good faith believed said property was his or if they had reasonable doubt to that effect, they should acquit him. This although he may have been mistaken in such belief.

The court refused to give this instruction and we think this was error. It is the duty of the court, in his instructions, to present to the jury the theory of the defense when requested by the defendant. This court hasi often held this to be true. See Crittenden v. State, 13 Okla. Cr. 351, 164 Pac. 675; Kilgore v. State, 25 Okla. Cr. 69, 219 Pac. 160; Buchanan v. State, 25 Okla. Cr. 198, 219 Pac. 420; Ammons v. State, 28 Okla. Cr. 433, 231 Pac. 326; Peyton v. State, 16 Okla. Cr. 410, 183 Pac. 639; Courtney v. State, 10 Okla. Cr. 589, 140 Pac. 163; Pay-ton v. State, 4 Okla. Cr. 316, 111 Pac. 666; McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735.

For the reason stated, the judgment and sentence in this case is reversed and remanded.

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


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    GLEN HUFFORD v. STATE.
    No. A-9128.
    March 26, 1937.
    (66 Pac. [2d] 529.)

      John Beveridge, John W. Tillman, and Fred A. Tillman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sim T. Carman, Co. Atty., and L. L. McKenzie, Asst. Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in Osage county with the crime of burglary in the second degree, was convicted, and appeals to this court.

He was informed algainst jointly with one Aaron Wise, who- was used as a witness by the state. The first assignment of error is that the testimony of Aaron Wise, he being an accomplice, is not properly corroborated. They were charged with burglarizing the home of T. E. Ted-io ck, a school teacher, on July 8, 1935, and with breaking the loch and entering the home and taking a Majestic radio.

The evidence showed that Mr. Tedlock’s residence was at the teacherage of a country school, about 2% miles west of the town of Skiatook, in Osage county; that he was away from home on a vacation; before leaving home he had made arrangements with one Lee Kilpatrick, to sleep at his residence and look after his property while he was away; that Mr. Kilpatrick slept there on the night of the 7th of July, and left early the next morning, July 8th, locking the door before he left; that when he returned in the evening he found the house had been broken into by breaking the lock, and a Majestic radio, weighing about 175 pounds, was missing'.

The witness, Aaron Wise, testified that he went to the home of the defendant, who- was a cousin of his, to visit on Saturday, July 6th; that defendant’s home was very close to the Tedlock home; that on Sunday morning he had a talk with the defendant about a radio ; that the defendant told him that be knew where there was one that would be easy to get; that it was at the home of Mr. Tedlock, who was away on a vacation, and that the man who stayed there at night left early every morning, and that it would be a cinch to get it after he left; that he did not know Mr. Tedlock, and did not know where he lived, or that he had a radio; that on Monday morning, July 8th, he and the defendant walked up in sight of the Tedlock home and saw Mr. Kilpatrick leave the house; that the defendant ran down the road to> be sure it was him; and that he watched to1 see if any one else was around the house; that they then got the car of the defendant and came back to- the Tedlock home; and that he got out of the car and went to the house and broke the lock and got the radio to the door; that the defendant drove around) and watched, and then came to the house and that both he and the defendant carried the radio from the house to the stable where they rested, and then carried it on out to the car that had been parked by the defendant in the road; both witness and defendant carried the radh> in the car to Tulsa, and placed it in the home of one Leslie Crawley, a friend of Wise; the next day both he and the defendant met a friend of defendant’s named Bill Dickens, at the Pastime pool hall in Tulsa, and defendant made arrangements with Dickens to bring the radio to his house, and that he could have all over f 40 he could get for it; that he, Wise, went back to Crawley’s house and got the radio while the defendant waited for him on a street in Tulsa; and when he got the radio he went to where the defendant was waiting, picked him up, and they carried the radio and left it at the home of Bill Dickens as agreed; that the officers the next day, after witness and defendant had been arrested and placed in jail at Skiatook, found the radio at Dickens’ home; that just after they were placed in jail he and defendant had a talk and defendant told him that if they found the radio that they were hooked and if they did get caught he wanted him, Wise, “to take the rap,” and he told him that he would. This conversation was heard by Officer Bunk Elliott, who had stationed himself by the side of the cell just after placing them in jail at Skiatook. The next day witness gave a written statement to the county attorney, the same being the day of the preliminary.

The defendant, in this statement, gave about the same story that he told at the trial, with the exception that in the statement he said that the defendant did not go with him to Mr. Tedlock’s house to get .the radio1, and was not present at the time he broke into the house and got it;' that after he secured the radio he took it down the road and hid it and then went back to the house of defendant and told him he had ditched it; that he and the defendant agreed to make up an alibi with reference to having the valves’ on defendant’s car ground so that the car would be tom do wn and they could show this as an alibi. In this statement witness states that the defendant went with him to Tulsa and to1 all the details heretofore stated. After-wards the witness talked to the county attorney and toldi him that he did not want to commit perjury, and when confronted with the fact that by reason of the weight of the radio it would have been impossible for him to carry the same by himself, he decided to tell the truth and made a written statement to the county attorney in which he related practically the same story he told from the witness stand in this case. This was only a, few days after the burglary and arrest of defendant and witness.

From the above statement, it will be seen that the witness, Aaron Wise, was corroborated in many details. The fact that the house was robbed and that the radio was gone. The evidence of the city marshal of Skiatook that he listened to a conversation between the witness and defendant just after they were placed in jail in which the defendant said that he wanted witness to1 take the rap if they were caught and that he could be more help to him on the outside than he could on the inside; the testimony of the witness Leslie Crawley that both defendant and Wise came to his house and left the radio. The evidence of the witness Bill Dickens that the defendant made arrangements with him to keep the radio at his home and that he could have all over $40 that he could get for it. The defendant, as a witness in his own behalf, corroborated the evidence of the witness Wise in many details, except that he denied that he was present at the time of the breaking and taking of the radio. He claims that he loaned his car to Wise and that he committed the burglary alone while defendant was on the streets of Skiatook. That the witness Avas gone about 35 or 40 minutes and returned, and that he and Wise went to< Tulsa together in defendant’s car. They returned to defendant’s home that night and returned to Tulsa next day. He admitted that Wise told him he had the radio in the car soon after they left Skiatook and knowing this, he helped take it to Dickens’ residence for the reason that he said he was afraid that some one would get in trouble. He said, “He wanted to have it somewhere so> somebody would not get suspicious and he did not think Bill would because he had known me all his life.” This was two days after the house had been burglarized and the radio taken.

From the above statement, it is readily seen that there was sufficient corroboration of the witness Wise. The law prescribes no> standard for the strength of the corroborating evidence and there is a failure to corroborate only if there be no evidence legitimately having that effect. Where the corpus delicti is well proved, and there is competent evidence independent of that of the accomplice showing the actual commission of the crime, it tends to connect the defendant with the commission thereof; the sufficiency of such corroboration is a question of fact for the jury. It is not necessary under the law that the corroborating evidence connect the defendant with the offense ; if it tends to' do so, it is sufficient; it may he proved by circumstantial evidence, it need not be by direct evidence.

The courts of this state have passed upon this proposition many times. The case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, seems to be one of the leading cases from this court. In that case it is said:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to' some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

See, also, Bond v. State, 54 Okla. Cr. 39, 14 Pac. (2d) 425; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387; Bradley v. State, 43 Okla. Cr. 456, 279 Pac. 920; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087.

It will thus be seen that the testimony of the accomplice Wise was sufficiently corroborated in this case.

Defendant complains of the giving of instruction No. 7, which is in reference to. an accomplice. We have carefully examined this instruction and it is in harmony with the law as announced by this court in many cases. It informs the jury that no person may be convicted upon the testimony of an accomplice unless there is other evidence in the case tending to connect the defendant with the commission of the offense, and that such other evidence is insufficient if it merely shows the commission of the crime or the circumstances thereof, but such other evidence to be sufficient to corroborate an accomplice must tend to connect the defendant with the commission of the crime charged against him. Instructions similar to this have been approved by this court in many cases. Hendrix v. State, 22 Okla. Cr. 230, 210 Pac. 734; Wishard v. State, 5 Okla. Cr. 610, 611, 115 Pac. 796; Adams v. State, 21 Okla. Cr. 448, 209 Pac. 189.

Defendant in his brief in quoting instruction No. 7 uses the word “sufficient” where the case-made in quoting this instruction uses the word “insufficient.” This no doubt is a typographical error; however, it makes a vast difference in the reading of this instruction, for the reason that as quoted in the brief of defendant it has the court as charging, the jury that the evidence of corroboration is “sufficient” if it merely shows the commission of the crime or the circumstances thereof. This, of course, would be contrary to the statute of this state, but by the use of the word “insufficient” the court charges the jury that the corroboration is insufficient if it merely shows the commission of the crime or the circumstances thereof, but must go further and tend to' connect the defendant with the commission of the crime charged against Mm.

From an examination of the record, it appears that the defendant received a fair and impartial trial. The defendant presented his defense and the jury passed upon it and found him guilty., It is our opinion that the judgment of the district court of Osage county should be affirmed.

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


author: BABEFOOT, J.

text:
    SYLVESTER RICH v. STATE.
    No. A-9142.
    March 26, 1937.
    (66 Pac. [2d] 950.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and S. T. Boberson, Co. Atty., for the State.
   BABEFOOT, J.

Tbe Legislature on April 1, 1919, passed (chapter 60 [63 Okla. St. Ann. §§ 391-393]) an Act entitled “Belating to Narcotic Drugs,” tbe title to tbe same providing:

“An Act relating to narcotic drugs; prohibiting tbe selling, giving away, dispensing, manufacture, production, unlawful possession, transportation and unlawful use of narcotic drugs; defining narcotic drugs; providing penalties for tbe violation of this Act; and declaring an emergency.”

The first section (63 Okla. St. Ann. § 391) defined “Narcotic Drugs.” Section 2 (63 Okla. St. Ann. § 392) prohibiting tbe selling, giving away, dispensing, manufacture, production, distribution, concealing, buying, or in any manner facilitating tbe transportation of narcotic drugs, and providing for registration of certain parties allowed to possess and dispose of same, and bow the same may be disposed of by those entitled to handle tbe same. One part of section 2 is as follows:

“It shall also be unlawful for any person to transport, carry or take from one point within the state to another point within the state, of however short distance, any of the aforesaid narcotic drugs.”

Section 3' (63 Okla. St. Ann. § 393) provided the penalty for violation of the act:

“Any person who violates any of the requirements or provisions of this act shall, upon conviction, be deemed guilty of a felony and be fined not less than Five Hundred Dollars nor more than Five Thousand Dollars and shall be imprisoned not less than one year nor more than seven years, or both.”

Section 4 declared an emergency.

This act of the Legislature of April 1, 1919, is now sections 4611 and 4612 of the Oklahoma Statutes 1931 (63 Okla. St. Ann. §§ 392, 393).

The Legislature of 1935 passed what was known as the “Uniform Narcotic Drug Act,” which was article 6, chapter 24, of the Session Laws of 1935 (63 Okla. St. Ann. §§ 401-424). The title of this act was as follows:

“An Act relating to narcotic drugs ; enacting the provisions of the Uniform Narcotic Drug Act; making definitions; regulating, the sale, transportation, disposition, manufacture, compounding, possession, prescription, and administering of narcotic drugs and compounds thereof and making same unlawful except as specifically authorized herein; authorizing same under certain conditions; requiring licenses therefor; prescribing qualifications for such licenses; authorizing suspension or revocation of such licenses; requiring certain forms to be used and certain records to be kept relating to use, handling, and possession of such drugs; requiring the labeling of containers of such drugs; declaring certain places and premises resorted to by drug addicts or used for illegal keeping or selling of such drugs to be a common nuisance; making unlawful the keeping of such nuisance; providing for the seizure, forfeiture and disposition of narcotic drugs unlawfully possessed; providing that certain information shall not be deemed priviliged (sic) ; malting certain acts unlawful; prescribing certain procedure in prosecutions for violation hereof; prescribing penalties for violation of this Act; repealing conflicting laws; and declaring an emergency.”

This act passed with the emergency, May 14, 1935.

Section 1 of the act (63 Okla. St. Ann. § 401) is labeled “Uniform Narcotic Drug Act,” and gives the definitions of all terms used in the act.

Section 2 (63 Okla. St. Ann. § 402) provides:

“It shall be unlawful for any person to* manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this Act.”

Sections 3 and 4 (63 Okla. ,St. Ann. §§ 403, 404) provide for the issuance of licenses for the sale of narcotic drugs.

Section 5 (63 Okla. ,St. Ann. § 405) provides as to how sales shall he regulated or made.

Sections 6 and 7 (63 Okla. St. Ann. §§ 406, 407) provide for sales upon prescriptions and dispensation of narcotics by physicians, dentists and veterinarians.

Section 8 (63 Okla. St. Ann. § 408) names certain exceptions to this act.

Section 9 (63 Okla. St. Ann. § 409) provides for the records to be kept, etc.

Section 10 (63 Okla. St. Ann. § 410) is with reference to manufacture and wholesalers.

Section 11 (63 Okla. St. Ann. § 411) provides for possession under prescriptions.

Section 12 (63 Okla. St. Ann. § 412) as to common carriers.

Section 13 (63 Okla. St. Ann. § 413) declaring certain places as nuisances.

Section 14 (63 Okla. St. Ann. § 414) for the disposition of forfeited drugs.

Section 15 (63 Okla. St. Ann. § 415) for suspension of licenses upon conviction.

Sections 16 and 17 (63 Okla. ,St. Ann. §§ 416, 417) that records shall be kept open to inspection.

Section 20 of the act (63 Okla. St. Ann. § 420) provides :

“Any person violating any provision of this Act shall upon conviction be punished, for the first offense, by a fine not exceeding One Thousand ($1,000.00) Dollars, or by imprisonment for not exceeding two (2) years, or by both such fine and imprisonment, and for any subsequent offense, by a fine not exceeding Five Thousand ($5,000.00) Dollars, or by imprisonment for not exceeding three (3) years, or by both such fine and imprisonment.”

Section 21 of the act (63 Okla. St. Ann. § 421) provides :

“No person shall be prosecuted for a violation of any provision of this Act if such person has been acquitted or convicted under the Federal Narcotic Laws of the same act or omission which, it is alleged, constitutes a violation of this act.”

Section 22 of the act (63 Okla. St. Ann. § 422) provides :

“If any provision of this Act or the application thereof to- any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this and the provisions of this Act are declared to be severable.”

Section 23 of the act (63 Okla. St. Ann. § 423) provides :

“This Act shall be so interpreted and construed as to effectuate its general purpose, to- make uniform the laws of those states which enact it.”

Section 24 of tbe act provides:

“All acts or parts of acts which, are inconsistent with the provisions of this Act are hereby repealed.”

Section 25 of the act (63 Okla. St. Ann. § 424) provides :

“This Act may be cited as¡ the Uniform Narcotic Drug! Act.”
“Approved May 14, 1935. Emergency.”

It will thus be seen that the act of May 14, 1935, was a general “Uniform Narcotic Drug Act.” It was a uniform act that was being passed by the legislatures of the several states, so that there might be uniformity in the possession and handling of narcotic drugs, and especially to the illegal handling and disposal of the same.

It will be noted that both acts deal with the same subjects. The act of 1919 being a special act. The act of 1935 being a general uniform act. There are certain conflicts between the acts and especially in reference to the punishment to be inflicted for a violation of the same.

The act of 1919 (section 2 [63 Okla, St. Ann. § 392]) provides:

“It shall also be unlawful for any person to transport, carry or take from one point within the state to another point within the state, of however short distance, any of the aforesaid narcotic drugs.”

The act of May 14, 1935, has no provision against the unlawful transportation of narcotics.

An information was filed against the defendant in Canadian county, July 15, 1935, charging him on the 3d day of July, 1935, with the crime of transporting narcotic drugs from a point within Canadian county, to another point therein, about one-half mile distant. The evidence discloses, that defendant, with other parties, was approaching El Reno from the south on what is known as United States1 highway No. 81. The officers stopped his car and as defendant got out of the car he was seen to place something white in his mouth. One of the officers threw him down and began choking him. The officers, testified that he said he had swallowed 50 grains of morphine. He was taken to Union City to the office of a doctor who gave him several doses of medicine, and the doctor testified that he told him that he had swallowed 50 grains of morphine. No part of the contents of whatever was swallowed by defendant was ever recovered. The statement made by him and the above circumstances, together with the fact that he was a drug addict, was all the testimony connecting the defendant with the transportation of morphine as alleged in the information.

The first question presented is that the defendant was charged in the information with the violation of the act of April 1, 1919, and that the alleged violation was on the 3d day of July, 1935, and after the passage of the act of M'ay 14, 1935, and that the act of May 14, 1935, repealed the act of April 1, 1919, sections 4611 and 4612, Okla. Stats. 1931 (63 Okla. St. Ann. §§ 392, 393) ; that under the act of May 14, 1935, there was no. penalty for the transportation of narcotic drugs; that, therefore, the information was insufficient to charge a crime against the Iuavs of this state.

In this connection we think the defendant is correct. From the statement of the acts set forth it will readily be seen that the act of May 14, 1935, was a “Uniform Narcotic Drug Act.” This is shown by the title of the act and the different provisions thereof. Section 12 of the act (63 Okla. St. Ann. § 412) regulates the transportation of drugs, and had it been the intention of the Legislature for it to have been an offense to transport narcotic drugs under said act they would have undoubtedly so expressed it. Section 2 of said act (63 Okla. St. Ann. § 402), quoted above, does not provide that it shall be unlawful to transport narcotic drugs and had the Legislature intended to make it an offense they would have evidently incorporated it in section 2 of said act. It is evident that the Legislature was of the opinion that the act itself was comprehensive enough to adequately protect the state and its citizens against the illegal traffic of narcotic drugs,' and to have a narcotic drug law uniform with the other states of this nation. The act makes it an offense to have illegal possession of narcotic drugs. In the instant case the defendant could have been charged with unlawful possession as he was with transportation and this would have probably been the better course. It will be noted that sections 23, 25 (63 Okla. St. Ann. §§ 423, 424), and 24, as above quoted, show that it was the intention of the Legislature that it should be considered as a general statute for the purpose of having a Uniform Narcotic Drug Law. Section 24 provides:

“All acts or parts of acts which are inconsistent with the provisions of this Act are hereby repealed.”

This law was in full force and effect at the time the defendant was charged with the commission of the offense alleged in the information on July 3, 1935.

We are of the opinion that the act of May 14, 1935, repealed the act of April 1, 1919, sections 4611 and 4612, Oklahoma Statutes 1931 (63 Okla. St. Ann. §§ 392, 393), and this reasoning is sustained by the decisions of this court and the general authorities.

In Re James, 4 Okla. Cr. 94, 111 Pac. 947, 949, this court says:

“The rule that a later statute, general in its terms and broad enough to include matters provided for by a former special act, will ordinarily not affect the special provisions of such former act, is not a provision of substantive law, but is merely one rule for determining the legislative intent; and when it is apparent that the Legislature intended to make the later act exclusive, designed it to cover the whole subject-matter to' which it relates, and to embrace the entire law on the subject, it will repeal the repugnant provisions of all former acts, general or special. ‘When an earlier statute is special only in the sense that it applies to a single case, of which there are many in the state, and the later statute is general in its operation and applies to all such cases, then the earlier one is repealed by the later.’ 26 Am. & Eng. Enc. L. 743. See, also, Southport v. Ogden, 23 Conn. 128; Coe v. Meriden, 45 Conn. 155; Nusser v. Com., 25 Pa. St. 126. Thus it is said in 1 Lewis’ Sutherland on Statutory Construction, § 276:
“ ‘The question is one of intent. There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both cannot stand together. * * * Special or local laws will be repealed by general laws when the intention to do so is manifest, as where the latter are intended to establish uniform rules for the whole state.’ ”

In the case of Petitti v. State, 7 Okla. Cr. 12, 121 Pac. 278, Judge Doyle says:

“ ‘All acts and parts of acts in conflict with the provisions of this act are hereby repealed.’ The act of 1905 in effect repealed sections 2120 and 2121, Comp. Laws 1909 [21 Okla. St. Ann. §§ 265, 266], under the rule of construction that, where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of tbe first, and embraces new provisions plainly showing that it was intended as a substitute of the first act, it will act as a repeal of the first act, especially where the subsequent act contains a general repealing clause. For this reason, in SO' far as it defines the punishment, the instruction given is erroneous. For the same reason, the court erred in pronouncing judgment against the defendant for imprisonment, and that he also pay a fine, as the latter act does not provide for both fine and imprisonment.
“Our conclusion is that the prosecution in this case is destitute of merit, and for the reasons stated the judgment of conviction will be reversed.”

The Supreme Court of Oklahoma has often passed upon the same proposition. In the case of Garnett et al. v. Goldman, 39 Okla. 516, 135 Pac. 410, 412, the court says:

“It is a familiar rule of law that a statute revising the whole subject-matter of former acts, containing in the main the provisions of said acts, and evidently intended as a substitute for them, although it contains no express words to that effect, operates to repeal the former acts. Fritz v. Brown, 20 Okla. 263, 95 Pac. 437; Smock v. Farmers’ Union State Bank, 22 Okla. 825, 98 Pac. 945; Ticer v. State ex rel. Holt, County Attorney, 35 Okla. 1, 128 Par. 493.”

In Hudson v. Ely et al., 36 Okla. 576, 129 Pac. 11, the court says:

“A statute revising the whole subject-matter of former acts, containing in the main the provisions of the former acts, and evidently intended as a substitute for them, although it contains no express words to that effect, operates to repeal the former acts.”
In the present case the court, in his instructions to the jury, gave as to the punishment to be assessed against the defendant, that prescribed by the act of May 14, 1935, yet the defendant was charged under the act of April 1, 1919. The act of May 14, 193'5, as above stated, had no penalty for the illegal transportation of narcotic drugs. We think it was error to so instruct the jury. The trial court, after the verdict was rendered in this case, entered an order granting a new trial. Afterwards this order was set aside, and the motion for new trial was overruled. The record does not disclose the reason for this, but it is evident that the trial court was in doubt about the question involved in this case.

Other assignments of error are urged, but under the view as expressed we do not consider it necessary to pass upon them.

The judgment and sentence is reversed and set aside.

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


author: PER CURIAM.

text:
    H. J. TYE v. STATE.
    No. A-9218.
    March 26, 1937.
    (66 Pac. [2d] 957.)
    John W. Whipple, for plaintiff.
    The Attorney General and the County Attorney, for defendant.
   PER CURIAM.

On the 8th day of March, 1937, the Attorney General filed a motion to strike the appeal from the docket, and in the grounds for said motion he states:

“The case-made was served on the county attorney of Payne county, on July 27, 1936, purporting to settle the same as a true and correct case-made, but no notice of said signing or settling was ever served on the State of Oklahoma or the county attorney of Payne county, as required by the aforesaid orders of the court and statutes, nor was there ever any waiver of such notice or stipulation as to the correctness of said case-made; that said case-made was not certified or stipulated to be correct by the attorneys for the state of Oklahoma, or for the said defendant, and that said order of settlement shows that only the attorney for the defendant appeared.”

The record further shows that when the motion to strike was served upon the plaintiff in error and his attorney, they filed a response to the motion to strike, and attached to said response a. stipulation of the county attorney of Payne county and the attorney for the defendant, omitting the caption and signature as follows:

“It is hereby stipulated by and between Leon J. York, county attorney of Payne county, Oklahoma, and John W. Whipple, attorney for the defendant above named, that the facts set forth in the court clerk’s certificate attached hereto are true and correct; that the case-made was served on the county attorney’s office and the suggested amendments to same and notice of time and place of settlement were waived by both parties; also that the attorney for the state and for the defendant were present at the time the certificate was signed by Judge Hoel at which time we had a conversation about the case. It appears that some of the signatures attached tO‘ one of the copies were intended for the original. Dated this 12th day of March, 1937.”

The statement contained in the foregoing stipulation was sworn to on the 12th day of March, 1937, before Bill Newell, court clerk, Payne county, Okla.

Henry W. Hoel, district judge, who presided at the trial of the plaintiff in error, makes the following statement:

“Both Mr. York and. Mr. Whipple was present in my office at the time the case-made was signed by myself. We had some discussion about the case at the time. Dated this 12th day of March, 1937. Henry W. Hoel, District Judge. Bill Newell, Court Clerk.”

There is also attached to the response the certificate of Bill Newell, court clerk, Payne county, Okla., which certificate, omitting the caption and signature, is as follows :

“This is to- certify that there was filed in this office on October 26, 1936, by John W. Whipple, attorney for the above-named defendant, a case-made in the above entitled cause showing that the same was served on L. J. York, county attorney, by serving D. P. Henry, assistant county attorney, on July 27, 1936; that L. J. York attorney for plaintiff and John W. Whipple attorney for defendant waived the suggestions for amendments and notice of time and place of settlement of same on October 26, 1936; that L. J. York was present also at the time the certificate to same was signed by the district judge, Henry W. Hoel, on the 25th day of October, 1936. Dated this 12th day of March, 1937.”

On the question of the method of appealing to the Criminal Court of Appeals the following sections prescribe the procedure necessary to perfect an appeal.

Section 3197, Okla. Stats. 1931 (22 Okla. St. Ann. § 1059), provides:

“In all criminal cases appealable to' the criminal court of appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the case-made so* settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception; or the proceeding in the appellate court may be as provided in the next section.”

.Section 3198, Okla. Stats. 1931 (22 Okla. St. Ann. § 1060), provides:

“Instead of the appeal hereinbefore provided for any party desiring to appeal to the criminal court of appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in ‘Procedure, Civil,’ and the summons in error shall be served upon the attorney general, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

Section 534, Okla. Stats. 1931 (12 Okla. St. Ann. § 958), provides in part:

“The case and amendments shall, upon three days’ notice, be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached.”

This court has many times held that notice of time and place of settling case-made is indispensable. Grayson v. Perryman, 25 Okla. 339, 106 Pac. 954.

Section 535, Okla. Stats. 1931 (12 Okla. St. Ann. § 959), in part provides for the manner of correcting a case-made after it has been filed, and specially provides that no' appeal shall be dismissed by reason of such error or omission until an opportunity is given to supply such corrections.

In Simerson v. State, 9 Okla. Cr. 119, 130 Pac. 1112, this court said:

“If, as a matter of fact, proper notices of appeal had been served in this case, appellant could have established that fact by affidavits or by a stipulation agreed to and signed by the county attorney of Oraig county.”

The response to the motion to strike clearly shows that the county attorney of Payne county and the attorney for plaintiff in error were present at tbe time the case-made was settled and signed by the judge, and that notice of suggested amendments to the case-made, and notice of time and place of settlement were waived by both parties, and that both the county attorney and the attorney for plaintiff in error were present when the presiding judge, Henry W. Hoel, signed the case-made and same shows to be regularly filed in the office of the court clerk.

The facts shown in the response of the plaintiff in error, to the motion to strike, clearly shows that the sections of the statute with reference to making, serving, and settling a case-made were complied with. We hold that the motion of the state to strike should be overruled, and it is so ordered.


text:
    Ex parte GLADYS WRAY.
    No. A-9252.
    March 26, 1937.
    (66 Pac. [2d] 965.)

      Gladys Wray, in pro. per.
    Mac Q. Williamson, Atty. Gen., and ,Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

In her petition for writ of habeas corpus for discharge from imprisonment in the state penitentiary, Gladys Wray alleges she is unlawfully imprisoned, detained, confined, and restrained of her liberty by Jess F. Dunn, warden of the state penitentiary, at McAlester, Olda., that said imprisonment, detention, confinement, and restraint are illegal, and such illegality consists in this, to wit:

“That your petitioner, Gladys Wray, ivas, on or about the 20th day of September, 1935, adjudged and found guilty of a certain and alleged offense, ‘habitual criminal,’ against the peace and dignity of the state of Oklahoma, and by reason of such judgment she was assessed punishment and sentenced to serve a term of three years in the Oklahoma state penitentiary. A true and certified copy of the judgment and sentence is hereto attached and marked petitioner’s exhibit A, and made a part hereof, together with a true and correct copy of the petitioner’s prison record, which is hereto attached and marked petitioner’s exhibit B, and made a part hereof, showing that the crime for which she was convicted was habitual criminal.
“Your petitioner states to the court that the alleged crime for which this petitioner was convicted is not on tbe statute books of the state of Oklahoma, and that the Presiding Judge, Will Linn, was without authority or jurisdiction by law or otherwise to sentence this petitioner to serve a term in the state penitentiary for the said alleged crime by her alleged to- have been committed.”

To' this petition was filed a return by the warden of the state penitentiary, in which he admits he has the petitioner in custody, and that she was received on the 17th day of September, 1935; and states by information duly filed in the district court of Grady county, she was charged with the crime of petit larceny, as a second offense after prior conviction as provided by subsection 3, section 1817, O. S. 1931 (21 Okla. St. Ann. § 51, subsec. 3). A certified copy of said information is hereto' attached, and marked Exhibit A.

The warden further alleges that the formal journal entry, showing the sentence of the court erroneously cited the charge to which the petitioner pleaded guilty to as being that of habitual criminal, as shown by a copy of said sentence attached to petition herein filed; that said sentence should have shown that the petitioner pleaded guilty to petit larceny, as a second offense as charged m the information. The respondent holds the accused, Gladys Wray, pursuant to commitment from said court tO' serve a term of three years.

Since the filing of the petition, and response, by the warden of the penitentiary, there has been presented to the court what purports to be a nunc pro tunc order1 entered by the trial court, attempting to correct what is claimed to be an erroneous sentence. The order shows that application was made by the county attorney to the trial judge, on the 5th day of February, 1937, asking for a nunc pro' tunc order correcting the information heretofore filed in the above-styled case to show the true crime to which said petitioner was present by information, and to which she pleaded guilty to have been petit larceny, second offense. The order further recites that after hearing the evidence the court holds the information in truth and fact had stated the cause of action for larceny, second offense, and being satisfied an error was made in the style of said crime, finds said mistake should be corrected. The foregoing are the recitations in the order entered by the trial judge.

The court then made the following order:

“It is therefore considered, ordered, adjudged and decreed by the court that the said defendant was sentenced upon her plea of guilty of larceny, second offense, as charged in the information, and that the information and all other papers where same is erroneously styled habitual criminal, be and the same are hereby changed to1 read, ‘larceny, second offense’.”

The petitioner, Gladys Wray, as shown by the commitment held by the warden of the state penitentiary, was committed to the state penitentiary for being an habitual criminal, and her imprisonment fixed at three years in the state penitentiary.

Ballentine, in his Law Dictionary, on page 34, has defined “nunc pro tunc,” as:

“A decree, now for then. A decree which under certain conditions such as the death of a party or the judge, is not properly entered at the hearing of the case, and may at any time be entered nunc pro tunc as of the date the cause was heard.”

42 Corpus Juris, p. 534, § 221, in part says:

“An order may be entered nunc pro tunc to correct an order previously made not speaking the truth as to what was actually done, or tO' make the record of what was previously done by the court- and not then entered.”

We hold that the order of the trial court entered in the Gladys Wray Case, on the 5th day of February, 1937, was entered by the court without authority or jurisdiction, the defendant not having been notified of the application for the change of the pleadings and sentence, and not being present in open court at the time the order was entered. Ex parte Lyda Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840.

In Merritt v. State (Clark v. State, and Holmes v. State), 122 Ga. 752, 50 S. E. 925, the court in the second paragraph of the syllabus, said:

“When a criminal case is tried in a. city court by the judge without a jury, and a judgment of guilty rendered and announced, but not entered on the minutes, an order may be passed at a subsequent term, after notice to the accused, requiring the clerk to enter upon the minutes the judgment as actually rendered and announced.”

In the body of the opinion the court said:

“After the term has adjourned he has authority, after notice to parties interested, to make such order as may be necessary to make the record conform to the truth.”

The commitment conclusively shows that the petitioner was sentenced and committed for three years to the state penitentiary as an habitual criminal. It is a fundamental principle of law that the defendant may not be convicted of any offense other than the one charged, or an offense necessarily included as a matter of law.

It appears from the record that the judgment of conviction was for the crime of habitual criminal. There is no such offense known to our Penal Code.

In the case of Ex parte Bailey,, 60 Okla. Cr. 278 64 Pac. (2d) 278, and Ex parte Weaver, 60 Okla. Cr. 290, 64 Pac. (2d) 925, in paragraph 2 of the syllabus this court held:

“Habitual criminal statute, Penal Code, art. 6 (sections 1817, 1818 [21 Okla. St. Ann. §§ 51, 52]), does not create or define a new or independent crime but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. ‘Habitual criminality’ is a state and not a crime.” In syllabus 3, the court said: “The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the statute, and goes to the punishment only.”

We hold the court was without authority to render the judgment and sentence upon which the commitment was issued, and the execution of said void judgment deprives petitioner of her liberty without due process of law.

The relief prayed for by the petitioner, Gladys Wray, is granted, the writ awarded, and the petitioner ordered discharged.

BAREFOOT and DOYLE., JJ., concur.