text:
    JOHN DOOLIN v. STATE.
    No. A-9627.
    March 7, 1940.
    (101 P. 2d 271.)
    J. M. iSpringer and John F. Yaughan, both of Still-water, for plaintiff in error.
    •Mac Q. Williamson, Atty. Gen., and' L. J. York, Co. Atty., and D. P. Hervey, Asst. Co. Atty., both of Still-water, for the State.
   BAREFOOT, J.

The defendant was charged in Payne county with the crime of driving an automobile while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $50 and court costs, and has appealed.

The information in this case was based, upon Oklahoma Statutes 1931, section 10324, 47 Okla. St. Ann. § 93, which is as follows:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1 of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than two thousand ($2,000.00) dollars, or by both imprisonment and fine.”

The information charged: “* * * one John Doolin then and there being, did then and there willfully drive, operate and propel a motor vehicle, * * * upon and over the public highway * * *.” A demurrer was filed to the information, first, that it failed to state facts charging defendant with the commission of a public offense; and, second, that it is vague, indefinite, and uncertain and does not apprise defendant of the exact charge attempted to be laid against him.

It is contended the court erred in overruling the demurrer for the reason that the information does not use the word “feloniously.” That by reason of the fact that the punishment which may be inflicted by the above statute may be a penitentiary sentence, a violation of the same constitutes a felony, and it is therefore necessary to use the word “feloniously” in the charging part of the information. Counsel in his brief says: “We confess that we have been unable to find a precedent squarely in point on the question here presented.” We believe that the question has been answered in the case of Bannon & Mulkey v. United States, 156 U. S. 464, 15 S. Ct. 467, 468, 39 L. Ed. 494. The Supreme Court of the United States, after referring to and citing the case of United States v. Staats, 8 How. 41, 12 L. Ed. 979, says:

“In the opinion it was admitted that, in cases of felonies at common law, and some also by statute, the felonious intent was deemed an essential ingredient, and the indictment would be defective, even after verdict, unless such intent was averred; but it was held that, under the statute in question, the felonious intent was no part of the description, as the offense was complete without it, and that the felony was only a conclusion of law, from the acts done with the intent described, and hence was not necessary tO' be charged in the indictment. Where the offense is created by statute, and the statute does not use the word ‘feloniously,’ there is a difference of opinion among state courts whether the word must be put into the indictment. 1 Bish. Or. Proc. § 535. But, under the decision in the Staats Case, we are clearly of the opinion that it need not be done.
“Neither does it necessarily follow that, because the punishment affixed to an offense is infamous, the offense itself is thereby raised to- the grade of felony. The word ‘felony’ was used at common law to denote offenses which occasioned a forfeiture of the lands or goods of the offender, to which capital or other punishment might be superadded, according to- the degree of guilt. 4 Bl. Comm. 94, 95; 1 Russ. Crimes, 42. Certainly there is no intimation to the contrary in Mackin’s Case [Mackin v. United States, 117 U. S. 348, 6 S. Ct. 777, 29 L. Ed. 909], which was put wholly upon the ground that, at the present day, imprisonment in a state prison or penitentiary, with or without hard labor, is considered an infamous punishment. If such imprisonment were made the sole test of felonies, it would necessarily follow that a great many offenses of minor importance, such as selling distilled liquors without payment of the special tax, and other analogous offenses under the internal and customs revenue laws, would be treated as felonies, and the persons guilty of such offenses stigmatized as felons. The Cases of Ex parte Wilson (114 U. S. 417, 5 S. Ct. 935 [29 L. Ed. 89]) and Mackin [v. United States] (117 U. S. 348, 6 S. Ct. 777, [29 L. Ed. 909]) prescribed no new definition for the word ‘felony,’ but secured persons accused of offenses punishable by imprisonment in the penitentiary against prosecution by information, and without a preliminary investigation of their cases by a grand jury. By statute in some of the states, the word ‘felony’ is defined to- mean offenses for which the offender, on conviction, may be punished by death or imprisonment in the state prison or penitentiary; but, in the absence of such statute, the word is used to designate such serious offenses as were formerly punishable by death, or by forfeiture of the lands or goods of the offender. Ex parte Wilson, 114 U. S. 417, 428, 5 S. Ct. 935 [29 L. Ed. 89, 91].”

In 31 Corpus Juris 699, sec. 248, it is said:

“In other jurisdictions the averment is required only when the term is used in the statute to describe the crime, or the statute refers to- a common-law offense by name only and its use was essential to a proper description of the offense at common law, and it is held that, where a crime is made a felony by statute it is not necessary to charge that it was feloniously committed unless the statute itself makes a felonious intent an element of the offense. * * *”

See also the following cases: State v. Seawood, 123 Ark. 565, 186 S. W. 72; State v. Eldridge, 12 Ark. 608; Territory v. Gonzales, 14 N. M. 31, 89 P. 250; Gregory v. Commonwealth, 187 Ky. 188, 218 S. W. 999.

It certainly could not be contended that the offense of driving, an automobile while under the influence of intoxicating liquor was an offense at common law. As stated in defendant’s brief, it was “purely statutory.” In describing the offense the statute does not use the word “felonious.” Under the decisions of this court it is well settled that in indictments or informations for statutory offenses, it is only necessary to use the language of the statute, unless it is apparent that there are elements of the offense not described in that language. This case being based upon a statute which is clearly a statutory offense, there was no error in the court overruling the demurrer to the information upon the ground that it did not use the word “feloniously.”

It is next urged that the evidence was insufficient to sustain the conviction and sentence. The evidence revealed that defendant was a resident of the city of iStillwater. That on Sunday, July 10, 1938, he was at a beer parlor drinking beer. He says he had some four, five or six glasses of beer during the day. He was seen leaving there about 8:30 or 9:00 o’clock by a city officer who told him that he was a little tight, and had better go home. He went across the street to where his car was parked, and the officer went over to him, and told him to “have someone drive it home and you go on home.” That a man by the name of Harvey Pangle got in the car, and drove it up the street. That the officer got in a scout car with Officer Graham and they followed the car of defendant. That they did not drive very far until Harvey Pangle got out of the car and turned it over to defendant, who refused to go* home. That the city officers started after him, and sounded their siren several times, and defendant not only refused to stop, but ran several stop lines, and proceeded to the county highway, outrunning the city officers, and they were unable to catch up with him. They reported this incident to the highway patrolmen. Two* of these officers proceeded north on the highway and saw the car of defendant coming toward them. They turned around and followed defendant, whose car was weaving from side to side in the streets. They finally stopped defendant and took him to the city jail.

Both of these officers testified that he was under the influence of intoxicating liquor, and they smelled liquor on his breath, and that he talked and acted like he was drunk.

Two other officers testified to seeing him after he was arrested, and their evidence was to the same effect.

Defendant and several witnesses testified that defendant was not under the influence of intoxicating liquor. Defendant testified that he knew the officers were after him. That he heard their signal to’ stop, but wanted to have some fun out of them.

The jury, after hearing this conflicting evidence, decided that defendant was guilty, and assessed a punishment of $50 and costs. Under the circumstances they were very considerate.

The court, in its instructions, defined the term “intoxicating liquors,” and properly instructed the jury, protecting the rights of the defendant. No exceptions were taken to the instructions of the court. The requested instruction offered by defendant was fully covered in the instructions given.

Finding no error, the judgment of the district court of Payne county is affirmed.

DOYLE, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    RAY WYATT v. STATE.
    No. A-9599.
    March 7, 1940.
    (100 P. 2d 283.)

      Thos. S. Harris, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Ray Wyatt was charged in the district court of Creek county, Okla., with the offense of burglary in the second degree, was tried, convicted and sentenced to serve a term of imprisonment in the state penitentiary for a period of six years, and has appealed to this court.

The evidence upon the part of the state showed that the defendant, about 2:30 o’clock, p. m., on Sunday, May 22, 1938, broke a pane of glass in the front door of the store building of one Bill Gibbs in the town of Mannford. That he entered the store and filled his shirt and pockets with bananas, sewing, thread and several small articles, and rolled a. 110 lb. drum of lard out the door and up the sidewalk. This offense all happened in the broad daylight, and several witnesses saw the defendant rolling the lard stand towards some weeds behind the store. Some of them ran to the owner of the store to notify him what had happened. Mr. Gibbs was not in town, but his son went to the defendant and searched him and found the small articles above mentioned on his person. The defendant had been drinking. In addition to the lard can, a 50-pound can of peanut butter, three sacks of flour, and three slabs of bacon were found hidden in the weeds behind the store.

The defendant did not take the stand, and the only evidence offered in his behalf was to show that the defendant was insane at the time of the commission of the crime.

There was a dispute as to whether or not the defendant was mentally incapable of committing the offense charged. This defense, however, was submitted to the jury under proper instructions and they found against the defendant on that issue.

The chief contention raised by the defendant for reversal of this case is that the court erred in overruling the motion to quash the information filed on behalf of the defendant.

When the case was called for trial, the attorney for the defendant asked and was granted permission by the court to withdraw his plea of not guilty for the purpose of interposing a motion to quash the information without prejudice to trial.

The defendant, in his motion to quash the information, attacks the transcript of the record filed in the district court by the justice of the peace for the reason that the certificate was signed by A. B. Weaver as clerk for the justice of the peace, and for the further reason that in the order of the justice of the peace which was signed by the justice of the peace binding the defendant over to the district court it did not recite the offense for which the defendant was being held.

After these matters were called to the court’s attention, the court gave the county attorney permission to correct the transcript by having the justice of the peace fill out the certificate and sign the same and to' allow the justice of the peace to insert in his order the offense for which the defendant was bound to the district court. After the amendment of these instruments, the motion to quash was overruled, and the defendant allowed his exceptions. .

The district court did not have jurisdiction to' try the defendant unless the defendant had actually had a preliminary examination or waived the same. If the fact that the defendant had had a preliminary examination is made to appear to the court any time before trial, as in this case, then the jurisdiction of the district court immediately attaches and the court has authority and power to proceed fully with the trial.

In Norwood v. State, 11 Okla. Cr. 637, 169 P. 656, the following rule was adopted:

“After a justice of the peace has certified to- the court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon motion to qnash the information for failure to indorse upon the original complaint that he found a crime had been committed, and that defendant was probably guilty thereof, by leave of the court and before the trial commences, complete such record by making said indorsement where the same is not inconsistent with the transcript of the record as previously made and certified.”

In Weatherford v. State 30 Okla. Cr. 86, 234 P. 779, we stated that the jurisdiction of the district court rests upon the findings of a magistrate in a preliminary hearing, but irregularities committed by the magistrate may be cured by amendment before the trial in the district court. See, also, Williams et al. v. State, 6 Okla. Cr. 373, 118 P. 1006; Ponoksy v. State, 8 Okla. Cr. 116, 126 P. 451.

The defendant complains some of misconduct on the part of the assistant county attorney in his argument to the jury. The record does not indicate that the assistant-county attorney stated anything which would not have been a reasonable deduction from the evidence which was introduced.

We have examined the record closely and find that the facts are sufficient to support the verdict of the jury; the instructions properly set forth the law upon the issues involved, and there is no material error appearing in the record which would require a reversal of this cause.

We do feel, however, that the punishment imposed herein is excessive. The record discloses that this defendant had lived in the town of Mannford for many years. His widowed mother had operated a store there until just a few weeks prior to the date of this offense. It was raining; but the act was committed in the daytime, in the full view of people standing in doorways of buildings and in a filling station in the town. It was utterly impossible for the defendant to escape detection, and he apparently made no serious effort to avoid detection. He was eating a banana that he had taken out of the store when the son of the prosecuting witness caught him about a block from the store building. Under the circumstances herein presented, we think the ends of justice can properly be met by reducing the sentence imposed to three years.

It is, therefore, ordered that the sentence imposed on the defendant be modified to a term of three years in the state penitentiary at McAlester, Okla., and that the judgment as modified be affirmed.

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


author: BAREFOOT, J.

text:
    J. D. YEARGAIN, Jr., v. STATE.
    No. A-9633.
    March 14, 1940.
    (101 P. 2d 273.)
    J. J. Smith and H. P. Walker, both of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and N. C. Barry, Co. Atty., of Miami, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Ottawa county with the crime of unlawful possession of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $50, and to' serve a term of 30 days in the county jail, and has appealed.

For reversal of this case it is urged:

First: The error of the court in not permitting defendant a reasonable time in which to prepare his defense after his regular attorney was shown engaged elsewhere in court and defendant was compelled to procure another attorney.

Second: Error of the court in admitting, any evidence in the case and refusing to suppress evidence upon proper motion.

The motion for continuance was filed on the 5th day of December, 1938, the day the case had been set for trial, and was as follows:

“Comes now J. D. Yeargain, Jr., and being duly sworn says that he is the defendant in the above entitled causes, that he is unable to proceed with the trial of these cases at this time, which are now set for trial on the 5th day of December, 1938, for the reason that Keith Smith, an attorney of record for the said defendant, is now engaged in a term of court in Delaware county and will be for the next ten to fifteen days which is no fault of this defendant and said attorney, Keith Smith, having already arranged for the trial of the causes in said Delaware county will be unable to proceed to trial in the above styled causes in this court- at this time.”

The record does not reveal that this motion was presented and acted upon by the court, nor was any exception taken in any way by the defendant to any action taken by the court with reference thereto'. It also reveals that an information was filed in the county court of Ottawa county against the defendant on the 14th day of April, 1938. That on the same date he was arraigned and was served with a copy of the information, and given 24 hours in which to plead. On October 7, 1938, the case was set for trial on October 18, 1938. On October 11, 1938, a motion was filed by defendant to disqualify the trial judge. This motion was heard and overruled on the 17th day of October, 1938, and an order was entered continuing the case from October 18, 1938, to December 5, 1938. The attorney who was present and represented the defendant at the time this motion was presented was Hon. H. P. Walker, the same attorney who represented him at the trial on December 5, 1938.

Defendant then filed an original action for writ of mandamus in this court praying that the county judge of Ottawa county disqualify himself in the trial of the case pending against defendant. In this proceeding he was represented by attorneys Mathers & Mathers, of Oklahoma City. This application was denied by this court on March 18, 1938.

On November 23, 1938, an order was entered resetting this case for December 5, 1938. On the 3rd day of December, 1938, a motion was filed for a change of venue, and on the 5th day of December, 1938, the same was overruled. The motion for continuance was then filed as above stated. It will be noted that in all the proceedings filed for continuance, there is nothing to show that Hon. Keith Smith was attorney for the defendant or ever had been. He was represented in the application to disqualify the trial judge which was filed on October 11, 1938, by attorney H. P. Walker. Mr. Walker was the attorney who' represented him in the trial of this case, and was no doubt familiar ivith the facts of his case. No evidence was taken to> support the motion for continuance, and in view of the facts as above stated, and the law as announced by the former decisions of this court, we conclude that there was no error on the part of the court in refusing the continuance. Taylor v. State, 21 Okla. Cr. 351, 207 P. 746; Queen v. State, 23 Okla. Cr. 146, 212 P. 1021; Coffey v. State, 38 Okla. Cr. 91, 258 P. 923; Anderson v. State, 21 Okla. Cr. 193, 207 P. 977.

The next error is based upon the ruling of the court in permitting evidence to be offered, which was obtained by reason of the issuance and service of a search warrant to search defendant’s automobile. The affidavit upon which the search warrant is based was directed against “John Doe, whose true name is to the plaintiff unknown.” The automobile which was sought to be searched was described as follows, to wit: “A certain four-door Chevrolet sedan painted green and bearing Oklahoma 1938 license tag No. 607-740.” It is argued that the officers knew the defendant and therefore should have inserted his real name in the affidavit and search warrant and not used the name “John Doe.” Evidence was presented by defendant on the motion to suppress the evidence, and this evidence does not support the contention of defendant.

The officers testified that they knew and were acquainted with defendant, but did not know who owned the car which they were attempting to search, and which was described in the affidavit and search warrant, and did not know who had the title thereto. This search was directed against a certain automobile which was well described in the affidavit and search warrant, and was not against an individual. The officer who made the search evidently did not know who would be driving the same at the time it would be apprehended and searched. The evidence in the case bears this out. Three officers participated in the search. One of them stationed himself at the top of an overpass for the purpose of identifying the car as described in the search warrant. By agreement with the other officers he signaled them when the car bearing the tag number and description used in the search-warrant passed, and those officers stopped the car which defendant was driving. They ordered him out and searched his car and found 18 packages (four cases) of assorted brands of whisky and gin. Defendant was arrested and the charges against him are the result of the possession of this liquor.

From these facts it will be noted that the officers evidently had knowledge that the car described in the search warrant was being used for the transportation of liquor in violation of law. The evidence also revealed that whisky had been found therein prior to this, and that the officers knew the reputation of the defendant as one who was engaged in the violation of the prohibition laws of this state, as set forth in the affidavit to secure the search warrant.

Under the above statement we think there can be no doubt as to the sufficiency of the affidavit to secure the search warrant. It is contended that the search warrant did not direct whether the search' should be made in the “daytime” or “nighttime”; that for this reason the evidence secured thereunder should be suppressed. The case of Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, is cited to support this proposition. A careful reading of that case does not justify this conclusion. This decision states that it is the best practice under the statute, Oklahoma Statutes 1931, section 3230, 22 Okla. St. Ann., § 1230, for the officer to give the direction therein that it be served in the “daytime” or “nightime”, but it does not hold that it is necessary to do so. The search warrant in the instant case states: “You immediately search the premises described and designated in such complaint.” There is nothing to show in the warrant the exact time of the day it was issued. The word “immediately” would mean within a reasonable time. It was searched the same day it was .issued. The search of an automobile upon the highway is not as important as the search of the “home” or “place of business” of a citizen of this state. The affidavit for the search warrant was positive in its terms. As stated in Cornelius on Search and Seizure, sec. 148, p. 371:

“Where the search warrant contains no express direction to the officer to make the search during the daytime, it is not necessarily thereby rendered invalid, but it will be presumed that the officer shall know his duty.”

The search warrant was issued on the 13th day of April, 1938, and the search, according tO' the testimony of the officers, was made on the same date. The deputy sheriff,. in making his return on the warrant, by mistake made it the 14th day of March, when it should have been April. It is insisted this should void the warrant. This was merely a clerical error of the officer, and should not cause a reversal of this case. It is highly technical.

Finding no error in the record, we are of the opinion that the judgment of the county court of Ottawa county should be affirmed.

DOYLE, P. J,, and JONES, J., concur.


text:
    ALBERT L. GREGG v. STATE.
    No. A-9691.
    March 14, 1940.
    (101 P. 2d 289.)

      Jerome Sullivan, of Duncan, Mark O’Quin, of Lake-land, Fla., and Earl Praet, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and J. W. Marshall, Co. Atty. of Stephens County, of Duncan, for defendant in error.
   JONES, J.

The defendant was charged in the district court of Stephens county with the offense of rape in the second degree, was tried, convicted and sentenced to serve a term of one year’s imprisonment in the state penitentiary, and has appealed to this court.

The defendant has filed a voluminous brief, covering 150 pages and making 41 different assignments of error. The assignments may be grouped under the following headings:

1. The evidence is insufficient to support the conviction.

2. Error in the admission of evidence over the objection of the defendant.

3. Improper and prejudicial argument of the prosecuting attorneys.

4. Misconduct of the trial court.

5. Error in denying the defendant’s request for a medical examination of the prosecutrix.

6. Error of the court in excusing certain jurors for cause.

7. Error in exclusion of evidence offered in support of the defendant’s theory.

8. The failure of the court to give an instruction on alibi.

Before considering, these various assignments, it is well to present a condensed summary of the evidence presented in this case. The prosecuting witness, Helen Mag-nusen, testified that she was 17 years of age; that her mother died in 1934; that her father lived in Sterling, Okla.; that after her mother’s death, she lived with her grandparents in Marlow; that in 1935 she attended school in Siloam Springs, Ark., where she had taken a course in typing and shorthand; that in January of 1936 she lived with her uncle in Wewoka, where she went to school during the remainder of that school term; that she returned to Marlow in June of 1936, and at the request of her grandmother the defendant gave her some part-time work at typing; that she was working for experience, hut that the defendant gave her some money from time to time; that shortly after she started to work for the defendant, she joined the Baptist Church, of which Gregg was the pastor; that the defendant first embraced her at the time she joined the church; that she went to school at Marlow during the year 1936 and 1937, working, after school for the pastor at his study doing whatever secretarial work he needed to- have done; that sometime after she had joined the church they became intimate; that she did not remember the exact date of the first time that he had kissed her, but that he kept kissing her and embracing her, and started exhibiting his sexual organs to her with the excuse that she should know about such things for her own protection; that he later told her about sexual intercourse and said he wanted her to know all about what it was; that the first act of sexual intercourse between them occurred in September, 1936, and that these acts of sexual intercourse continued on an average of once a week until she went to California on June 26, 1938; that these acts generally occurred in the pastor’s study, and on one occasion he had sexual intercourse with her three times in one day; that there was a large unabridged dictionary on the typewriter desk, upon which she sat with one foot on a straight legged chair and the other foot on a rocker; that he would stand in front of her and consummate the act in that position; that this position was taken at the request of the defendant for the reason that it would present a better appearance if someone should suddenly come to the pastor’s study. That the defendant discussed the question of her menstrual periods with her, and on one occasion had her take a douche. That on June 24, 1938, when her grandparents had gone to see a doctor in Duncan, the defendant came to their house; that she did not know the exact time, but thought that it must have been between 11 a. m. and 1 p. m.; that they went into the back bedroom and accomplished another act of sexual intercourse on the bed; that the defendant remained at the house about 15 or 20 minutes; that she fixed the day by the fact that she left Marlow to go to California on Sunday, June 26, 1938, and that this act occurred on the preceding Friday; that she left Marlow because her grandparents were sending her, as she had graduated from the Marlow High School that spring. That she was born on March 29, 1921, and had never had any love affair or sexual intercourse with any other man than the defendant, and that no boy friend ever visited her. A poem, “The Yoice of Love,” was dictated to her by Gregg and is included in the record, a reading of which corroborates the statement of the prosecutrix as to defendant’s attitude towards her. That she received from the defendant a large number of letters while she was in California, which letters were introduced in evidence. These letters show that the defendant wrote her almost daily, and sometimes twice a day, from the time the prosecutrix left Marlow until the defendant left Mar-low for his summer vacation; that the defendant gave her two pictures of himself, and just before she left for California he gave her $6 with the understanding that she was not to tell her grandmother about it; that they had an understanding as to how he was to send her money to use in returning to Marlow; that the defendant and his wife came to where she was living in California, but that her aunt refused to allow them to see her; that she discovered that she was pregnant after she went to California; that on August 11th she attempted to commit suicide by taking ant poison; that on August 29th she confessed to' her aunt about her illicit relationship with the defendant, which was the first time that she had ever told anybody; that on August 31st, she had a miscarriage or abortion; that she wrote her father, and her father came to California and furnished the money to have her sent back to Marlow, where she filed the complaint against the defendant.

The prosecutrix related in detail about several occurrences and conversations had with the defendant concerning their promiscuous misconduct, the details of which would serve no useful purpose in this opinion and will not be set forth herein, other than to remark that they showed that the prosecutrix had become infatuated because of the attentions paid her by the defendant, and that the defendant likewise had more than a fatherly interest in the prosecutrix.

The girl’s grandparents testified that she had worked for Gregg from June 23,1936, to June 24, 1938; that there was an increasing familiarity between the prosecutrix and defendant during this period that was very noticeable and caused the grandparents to send the prosecutrix to California to get her away from the defendant; that the grandfather talked to the defendant in July of 1938, after he had learned that the defendant was going to Fresno, Cal., where the prosecutrix was living with her aunt, and requested Gregg not to bring the prosecutrix back to Mar-low. They further testified that in all the time Helen lived in Marlow with them, she did not keep company nor show any interest in any man or boy other than the defendant.

Anne Olson testified that she is an aunt of the prose-cutrix and was living in Fresno, Cal., on June 29, 1938, when Helen arrived; that Helen stayed with her until September 25, 1938; that about two1 weeks after Helen arrived at her place she confessed that she was in love with the defendant; that on July 19,1938, Gregg and Mrs. Gregg came to see Helen, and she refused to allow them to talk to Helen and told the Greggs that Helen had confessed her deeds to her; that the defendant tried to talk with Helen and shake hands with her, but that she, Anne Olson, did not permit it. The witness corroborated the prosecutrix concerning the attempted suicide, the examination of the prosecutrix by a doctor after the abortion, and of her return with the prosecutrix to Oklahoma after the girl’s father had come to California and arranged for the return of the prosecutrix to Marlow.

This witness was a Pentecostal preacher; and during her testimony some effort was made by the defense to show that she was prejudiced toward the defendant by reason of refusal to allow her to use the Baptist Tabernacle for a convention a few years before that time. She related about the large number of letters received by Helen from the defendant.

Dr. J. L. Patterson and Dr. D. T. McGregor each testified as to an examination made of this prosecutrix immediately after her return to Marlow; that their examination disclosed that she had had sexual intercourse and that there was a slight tear on the mouth of the womb, caused by a dilation, which in their opinion was caused by pregnancy or miscarriage; that the girl was fully developed physically and had the appearance of being a much older girl than 17 or 18 years of age, and that from their examination she gave the appearance of a young married woman and indications were that she had had sexual intercourse several times.

The defendant introduced the testimony of several reputable citizens of Stephens county, who testified to the former good reputation of the defendant; and the state admitted that prior to the filing of the complaint against the defendant he had borne a good reputation in that community.

Several people testified that the prosecutrix had a bad reputation for truth and veracity; while just as many testified for the state in rebuttal that the reputation of the prosecutrix for truth and veracity was good. Other witnesses testified as to statements made by the prosecutrix before she went to California, indicating; the grandparents of the prosecutrix had mistreated her.

The state, at the request of the defendant, elected to rely upon the specific act alleged to have been committed at the grandfather’s house on June 24, 1988. To1 refute this evidence the defendant offered the testimony of several witnesses to1 trace his whereabouts during that day, which showed that he had been in the country eight miles from Marlow to make arrangements for a funeral, and had been to the hospital and in his study at the church. This testimony will be considered in disposing of the assignment of error relative to the alibi instruction requested by the defendant.

The defendant testified in his own behalf that he was 46 years of age, and that he had been pastor of the Baptist Church in Marlow for eight years. He specifically denied ever having had any illicit relations with Helen Magnusen. His testimony showed that the pastor’s study was the center of all activities concerning the church, and that this study is located just a short distance from the rear door of his residence. He details his whereabouts on June 24,1938, in substance the same as the other witnesses. He admitted writing letters to the prosecutrix and going to California to see her; but denied that he had any improper motives in any of his conduct in that regard.

The defendant first contends that the evidence is insufficient to support the conviction. The testimony of the prosecutrix covers 125 pages in the record. To this court it bears the imprint of truth. She details the relationship with the defendant from the time he commenced -drawing pictures of sex organs and lecturing to- her about life until the last act was committed on June 24, 1938. After reading this record, it is hard to understand how any reasonable man could conclude otherwise than that this girl was telling the truth about her relations with the defendant. Two reputable doctors corroborated the fact that their examination indicated that sexual intercourse had been repeated many times. She did not date other boys and was never with any other man than the defendant.

The conduct of the defendant in writing letters to her daily indicates that his interest in this child was far deeper than just a fatherly interest, as the defendant would have the court believe. The girl testified that the word “dictation” was the word used between them to mean intercourse. In one of the letters written by the defendant to the prosecutrix while she was in California, we find a postscript in the handwriting of the defendant in which he states, “Oh, how I need you for my dictation,” and underscored the word dictation. The defendant admits writing this postscript, but denies that it had any improper meaning. The testimony of the grandparents and of the annt corroborated several of the details testified to by the defendant.

In addition to the poem, “The Voice of Love,” heretofore referred to, the defendant wrote another poem to the prosecutrix as follows:

“I want to write a poem—
That poem gives things at far,
However, I choose words not used every day—
Some are magnitude, colossal, chivalry, and home.
“Oh, I want to write a poem about someone
A word I would fix
And in that is the coloring, the tonic,
And thrill of moments.
“The poem that I would like to write
Has in it a message to you.
The things related just come
And some of them that should be magnified in this poem.
But a bad man should be about the grave just ahead.
We kno w not where the road around the grave may lead,
But the end, after all the turns,
The mountains and falls has been made,
Is where the spotlight shines.
“I want to' write a poem about that one place
And tell you of the light, the labor and love.
It may be privilege so far as time be filled,
Love, repeatedly and greatly Tor you and me.’
“Albert L. Gregg”

The defendant denied the sexual intercourse attributed to him by the prosecutrix; but the issue as to' which of these parties the jury should believe has been submitted to them, and they have found against the defendant; and we think there is ample evidence in the record to' support this finding.

The defendant next contends that the court erred in "the admission of evidence over the objection of the defendant. This case was hard fought. The defendant was represented by able counsel who vigorously contested the state at every stage of the proceedings. The state was represented by the county attorney and by two able attorneys who had been employed as special prosecutors. It would have been rare indeed in a trial covering, the period of time devoted to the trial of this case and one as hard fought as this case for no errors in the admission of evidence to' have been made. We do not find any testimony admitted in this record which is of sufficient importance for this court to say that it prejudiced the jury. To the contrary, we find that the court was very lenient with the defendant in allowing them to place incompetent and immaterial testimony in the record. In the cross-examination of Judge Purcell, defense counsel were allowed to ask many questions which were wholly incompetent, going into' the home life of Judge Purcell. The following are typical examples of questions submitted to' this witness:

“Q. Have you and your wife ever been separated? * * * Q. I will ask you if you didn’t quit going to' the Christian Church in Marlow because one of your daughters got in a scrape with the pastor there and you got mad at him?”

The defense counsel contended and made offers of testimony in the presence of the jury, which were inadmissible and which clearly prejudiced the state’s case, and if the record had disclosed that similar conduct had been indulged in by the prosecution, this court would not hesitate to reverse this cause.

Very little complaint can be made of the trial judge in his ruling on the admission of evidence. We find that his rulings on all questions of evidence where the matter was of importance was in favor of the defendant. The county attorney at times asked leading questions, and objections to the form in which the questions were asked were sustained several times by the court. The county attorney should have refrained from this conduct, and should not have caused the defense to be forced to make objections in the presence of the jury to his method of conducting his examination; but we fail to see where this conduct under the record materially affected the defendant’s rights.

Counsel next contends that the argument of the prosecution was prejudicial. Objection is made to the argument of the special prosecutor. All of the arguments of the attorneys are not in the record. There appear only certain extracts thereof contained in the argument of Special Prosecutor Singleton and County Attorney Marshall. In one instance Mr. Singleton referred to the defendant as a. “leacher”, and they object to his statement in the argument where he said: “I think the evidence in this case is far more conclusive than in cases where lives have been snuffed out in the electric chair at McAlester,” for the reason that it was an expression of a personal opinion of the guilt of the defendant by the prosecutor.

We have laid down the rule in many cases that prosecutors in their arguments should not make statements not based upon the record and that they should not make references as to their personal opinion concerning the guilt of the accused. In this case, however, with what little excerpts from the argument of counsel as do' appear in the record, the statement of counsel as to his opinion of the guilt of the defendant is a statement of the attorney, which he says is his conclusion from the evidence. We cannot say that his terming the defendant a “leacher” is an unwarranted inference from this record, with the guilt of the defendant so clearly established. The assessment of the minimum punishment surely does not indicate that any remarks made by the two attorneys prejudiced the defendant’s case. The highest possible tribute that could be paid to the zeal and ability of defendant’s counsel is the fact that defendant escaped with a verdict of only one year’s imprisonment in the state penitentiary.

In the case of Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242, 243, we laid down the following rule:

“It is the duty of the county attorney in his opening statement and closing argument to the jury to confine himself to the facts as shown by the evidence. But they have the right to draw their deductions and conclusions, and unless the statements or arguments are such that deprive a defendant of his substantial rights, or are such that would arouse the passion and prejudice of the jury to the extent that they would be swayed from arriving at a just verdict, the judgment and sentence will not be set aside on appeal.”

See, also, Brown v. State, 52 Okla. Cr. 307, 4 P. 2d 129; Carmichael v. State, 44 Okla. Cr. 160, 279 P. 515.

Likewise we find that there is no merit in the defendant’s contention that the trial court was guilty of misconduct in the handling of this case nor in his refusal to allow the defendant to have a doctor examine the prose-cutrix at the time of trial. As hereinbefore set out, the record shows that the trial court was very liberal in his rulings so far as the defendant is concerned. It would only unduly lengthen this opinion to detail the portions of the record set forth in the brief of the defendant which they contend constitute a comment by the trial judge upon the weight of the evidence. It is sufficient to say that we do not think that the statements of the court are susceptible of the interpretation placed upon them by counsel.

Two reputable physicians, whose qualifications were admitted by the defense, testified concerning the condition of the prosecutrix as revealed through examinations made by them. Those examinations were made by the physicians in September. In the latter part of December, at the time this case was called for trial, more than six months had elapsed since the last alleged act of sexual intercourse with the defendant had occurred.

The correct rule is set forth in the case of McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am. St. Rep. 25: If the practice of compelling the prosecutrix to- submit to an examination of her person by medical experts on motion of the defendant made at the trial were adopted as a matter of right in all cases of prosecution for rape, the temptation to its abuse would be so great that it might be perverted into an engine of oppression to deter many modest and virtuous females from testifying in open court against the perpetration of one of the most barbarous and detestable of all crimes. We have repeatedly held that a conviction for rape may be sustained on the uncorroborated, testimony of a prosecutrix, which excludes the idea of any necessity for corroboration by an examination of her person. The prosecutrix is no party to any civil suit, but has been summoned at the instance of the state to testify in a criminal prosecution against an alleged violator of the law. It may well be doubted, in cases of rape, and cognate offenses, whether the court has the power to make an order compelling the inspection of the private person of a prosecutrix, in the event of her refusal to submit to such examination. If such rights exist at all, we should hold it to be a matter of judicial discretion with the trial court to be exercised only in cases of extreme necessity and not subject to review on appeal to this court.

In one case, Walker v. State, 12 Okla. Cr. 179, 153 P. 209, the prosecutrix was a child seven years of age, and her story of the alleged attack was very unsatisfactory. No physical examination of her person was made; and we held in that case that under the peculiar circumstances of the case it was an abuse of discretion on the part of the trial court to refuse to order a physical examination of the child by a competent physician when demand therefor was made by the defendant. This case is cited and relied upon by the defendant Gregg to support his contention. The cases are not similar. The request by the defendant herein was addressed to the sound discretion of the trial court, and we find no abuse thereof in this instance.

The defendant next contends that the court erred in refusing to instruct on the defense of alibi. The prosecutrix testified that the act relied upon by the prosecution occurred on June 24, 1938, at her grandfather’s house; that the defendant’s home was in the next block north from her grandfather’s home; that she does not know the exact time that the defendant was there, but it was. while her grandparents were gone to see the doctor, and in her opinion it was somewhere between 11 and 1 o’clock. That the defendant remained there about 15 minutes.

The defendant introduced witnesses to trace his whereabouts on that date. Garland Smith, the undertaker, testified that he saw Gregg the first time about 9:30 a. m., at the pastor’s study, and was with him for 10 or 15 minutes; that the witness drove out to. the Fritts home about 11 o’clock, and stayed 15 or 20 minutes, and then drove back to town, and went to the pastor’s study; found Gregg there and stayed with him about 15 minutes, completing the arrangements for the funeral.

Kerb Fritts testified that the defendant came to the Fritts home, about eight miles west of Marlow, sometime in the morning; doesn’t know exactly what time it was, but it was before dinner.

Alton Perry testified that he was at the Fritts home and saw the defendant there that morning; that he doesn’t know the exact time, but thought it was around 11 o’clock.

Mrs. A. L. Gregg testified that the defendant finished his breakfast between 8 and 9 a. m., and then went over to his study; that later that morning he drove in his car to the Fritts home. She doesn’t know the time when he left or when he returned, except that when he came back in the house he went to the bathroom and disinfected his hands, and went to his study. That she called him about 12 o’clock at his study to come to lunch, and that he was busy with Garland Smith and did not come to' lunch until about 12:15 or 12:20. That after he finished his lunch, he went in the Talla Hospital; and then after visiting at the hospital, he went to the funeral, which lasted until about 4:30.

The defendant for himself testified to substantially the same facts as were related by the other witnesses.

An examination of the defense testimony shows that the defendant had left the Fritts home and probably arrived back in Marlow before Garland Smith, the undertaker, left to go to the Fritts home, as there is no testimony on the part of the defendant or of Smith that they passed each other on the road. Smith says that he was at the Fritts home about 11 o’clock and stayed 15 or 20 minutes before driving back to town. Under the defendant’s own testimony, he was in the immediate vicinity all during that day; and the trial court committed no1 error in holding that in view of the nature of the testimony given by the defendant’s witnesses, and the indefiniteness with which they fixed the time, the evidence showed a 30 or 40 minute period in which the act could have been committed and that an instruction on alibi was not proper.

The question of alibi is only incidental to the defendant’s theory; the prosecutrix related a whole series of acts covering a period of 18 months. The defense theory was that this story was a fabrication, false in its entirety and without any foundation. He and his witnesses offered testimony to support his theory; and the general instructions of the court thoroughly covered this phase of the case.

This court will not hold that the trial court should give an instruction upon a so-called “fifteen-minute alibi” where all of the defendant’s testimony shows that he was in the immediate vicinity where the alleged offense occurred.

Alibi is a physical circumstance and derives its entire potency as a defense from the fact that it involves the physical impossibility of the guilt of the accused. Harris v. State, 120 Ga. 167, 47 S. E. 520.

In the case of Barbe v. Territory, 16 Okla. 562, 86 P. 61, our court laid down the following rule:

“To entitle the defense of alibi to consideration, the evidence must be such as to show that, at the very time of the commission of the crime charged, the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof; and, in a criminal prosecution, unless the evidence fills this requirement of the law, no instruction on the subject of alibi is necessary to be given by the trial court.”

In the case of People v. Charles, 9 Cal. App. 338, 99 P. 383, the court held that it was not error to refuse to instruct on the defense of alibi, where the accused’s proof did not show that he could not have been at the place of the offense at the time shown by the prosecution.

The defendant himself did not know the time that he was at the various places during the day the alleged offense occurred. All of the evidence showed that he was present in such close proximity to the place where the offense is alleged to have been committed that we think the court’s ruling thereon was proper.

The defendant complains of the action of the court in excusing certain jurors for cause. The record discloses that after the state had used its five peremptory challenges, the juror H. Calloway was called into the box. After a lengthy voir dire examination, both by the state and the defendant, the court excused the juror for cause. The juror Brooks was then called into the jury box,-and the court on its own motion excused the juror for the reason that he had served on the regular jury panel a month previous. The juror did not ask to be excused. That exhausted the regular jury panel and additional jurors were summoned by the sheriff pursuant to directions by the court. The defendant then demanded that he be allowed two additional peremptory challenges, which request was denied by the court. The defendant has made no showing that he was prejudiced in any way as a result of this action of the court; and we do not find that there was any error because of such action.

In Boutcher v. State, 4 Okla. Cr. 576, 111 P. 1006, we laid down the following rule:

“If, for any reason, the trial court is of the opinion, or even suspects, that any juror is not fair and impartial, it is the right and duty of such court to excuse such juror, either upon the challenge of one of the parties, or upon motion of the court, and such action will be upheld upon appeal unless it clearly appears from the record the trial court had abused its discretion to the injury of the defendant.” See, also, Smith v. State, 5 Okla. Cr. 282, 114 P. 350.

The defendant has no vested right to have any particular juror on the panel selected to serve in his case. His right is that of refusal rather than that of selection. It is the duty of the trial court to exercise supervision over the selection of a fair and impartial jury. A liberal latitude should be given the court in these matters, and his action thereon should not be disturbed unless the record is clear that the defendant was prejudiced thereby.

The defendant complains of the action of the court in excluding the testimony of the witness Finis Martin. He was the nightwatchman who, while going up an alley after dark, heard a voice which he was unable to identify coming from the southwest bedroom of Judge Purcell’s home where the prosecutrix was staying at the time of the preliminary hearing, which voice said, “The whole mess is a frame-up. I can’t go through with it.” The room from which the voice came was darkened and no person was seen therein. Certainly, if the defense could have connected the prosecutrix or any of the state’s witnesses with the making of this statement, it would have been admissible where a proper predicate was laid for the introduction thereof. In this instance the predicate was laid, but the evidence was insufficient to connect this statement with the prosecutrix; and the court did not err in sustaining an objection thereto.

The members of this court have given this case much study and attention. It appears that the defendant has mhny friends in the community where he resides, who believe in his innocence; and his attorneys have very eloquently pleaded his cause before this court.

This court knows none of the parties involved; but taking the record as a whole and viewing it impartially, it appears to us that the evidence is conclusive of the defendant’s guilt. The defendant took advantage of his position as a minister of the Gospel; and through his lust for this young girl’s body, he cast aside his duty to his family, his friends and his profession. Instead of using the pastor’s study for the spiritual and moral uplift of his people, it has become merely another one of hell’s recruiting stations where this young girl is given the wrong slant upon life and has come to believe that the things that she did were not wrong, because they were being indulged in by the man whom she looked upon as a spiritual leader.

We have all been taught that a pure and virtuous woman is the masterpiece and climax of God’s creation and should be regarded by all true men with a feeling of respect which borders upon reverence. The defendant has been tried before a jury of his fellow citizens in the community where he resides; and they have found that the defendant is guilty of destroying the virtue of this young girl. We find that no material error has been made, and the judgment is accordingly affirmed.

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


author: DOYLE, P. J.

text:
    W. W. BRUMLEY et al. v. STATE.
    No. A-9696.
    March 14, 1940.
    (100 P. 2d 465.)

      Hal Welch, of Ada, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Pontotoc county on or about the 9th day of February, 1939, W. W. Brumley and M. L. Krokrich did unlawfully convey and transport about 38 pints of whisky from a point unknown to another point, about one half mile west of the city limits of the city of Ada, on State Highway No. 12. A jury was waived by agreement of parties. The defendants filed a motion to suppress the evidence. It was agreed that after the evidence on the part of the state was introduced, the motion to suppress the evidence would be passed on by the court.

The state called two witnesses, Joe Porter and Jim Rogers.

At the close of the evidence for the state, and after argument on the motion to- suppress the evidence, the motion was overruled, thereupon the defendants asked for a directed verdict in the form of separate demurrers to the evidence, which were overruled and exceptions reserved.

There was no testimony offered on the part of the defendants.

The court sentenced the defendant W. W. Brumley to pay a fine of $75 and imprisonment in the county jail for 30 days, and sentenced M. L. Krokrich to pay a fine of $50 and imprisonment in the county jail for 30 days, and that the defendants! pay all costs in the amount of $39.40.

From the judgments they appealed by filing in this court on July 19, 1939, a petition in error, with case-made.

The testimony of the two officers shows that on the date alleged, between 8 and 9 o’clock p. m., Joe Porter, Jim Rogers and Allen Stanfield in executing a search warrant went to the Twin Oaks Tourist Camp, located about one-half mile west of the city of Ada, on State Highway No. 19, on the south side of the highway, which tourist camp was operated by the defendant, W. W. Brum-ley.

Joe Porter testified that while the search of the camp was in progress he was standing in front of the tourist-camp, and saw the two defendants in a Ford coupe, going west; Krokrich was driving. Then he got in his car and followed them, caught up with them about a mile and a half or two miles west of the “Y” up there, and Brumley threw a sack of whisky out of their car; about four or five miles from town he passed their car, and they turned around and came back east; that he turned also and followed them and Brumley threw another sack out a half a mile east from where they turned around; that he followed them back to town, and going by the Twin Oaks Tourist Camp, he picked up Jim Rogers and Officer Stanfield, and followed on with the siren on trying to stop them, and they would not stop until Jim Rogers shot the left rear tire of their car. Another shot hit a hub cap on their car. That they went to the defendants’ car, arrested them and put them in the hack seat, then drove back on Highway 19 and picked up the sacks containing broken and unbroken bottles of whisky. In the three sacks there were eleven pints of tax-paid whisky unbroken; that there were 38 altogether, counting the necks of the broken bottles.

He further testified that he saw the defendant Brum-ley throw two of the sacks out; that he knew the car and. recognized the defendants when they drove past the tourist camp; that he would say that it was about five miles west of the tourist camp where they turned around; that when the first sack was thrown out whisky splashed on his car; that was about three quarters of a mile before they turned around.

Jim Rogers testified that he was standing in front of the tourist camp and a Ford V-8 drove by pretty fast and right behind Joe Porter drove up in his car, and with Mr. Stanfield he got in the car with him, and followed the Ford V-8 car to the “Y”. It turned west on No. 12, and they turned and followed. Mr. Porter turned the siren on to stop them, they failed to stop, and witness shot down a tire to stop the car ; they found the floor board of the car was wet, and smelled like liquor. They arrested the defendants and searched the car, but did not find any whisky. They put the defendants in the back seat of Porter’s car, drove back and picked up three sacks on the highway that contained 38 whisky bottles, all broken except eleven full pints of tax-paid whisky.

The errors assigned are that the trial court erred in overruling the motion to suppress the evidence, in refusing to strike all the evidence, and in overruling defendants’ demurrers to the evidence at the close of the state’s case.

Counsel for defendants in his brief states that:

“The search was commenced at the time the officer started in his car to overtake the defendants’ car and stop it for the purpose of obtaining evidence of a violation of the prohibitory laws, and it was commenced wholly on suspicion, with only a faint hope of obtaining evidence. Being unlawful in its inception the entire search was illegal, and the evidence obtained thereby was inadmissible against the defendants.”

Upon the record before us we think that the contention made is wholly without merit. An offense is committed or attempted “in the presence of an officer,” within the meaning of the statute, providing that a peace officer may, without a warrant, arrest a person for a public offense committed, or attempted in his presence, where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to the arrest. Section 2780, Sts. 1931, 22 Okla. St. Ann. § 196.

Upon the undisputed facts the arrest of the defendants was lawful, and being under lawful arrest, the officers had the right, as an incident of that arrest, to search the car occupied by the defendants, after the officer had observed the sacks containing whisky thrown from the car occupied by the defendants.

In the case of McAdams v. State, 30 Okla. Cr. 207, 235 P. 241, this court held:

“Where peace officers, without a warrant, on suspicion merely, illegally attempted to arrest a person suspected of the commission of a misdemeanor (transporting whisky), and as a sequence to such attempted arrest the offense is actually committed in the presence of and to the certain knowledge of the officers, the offender, under the circumstances set out in the text, may he legally arrested without warrant for the offense so committed in the officers’ presence.”

In the opinion it is said:

“In this case, at the outset the defendant was merely suspected of having committed or being in the act of committing a misdemeanor, and the attempt to arrest the defendant on suspicion, without a warrant, was illegal. This court does not approve nor wish to seem to encourage peace officers in illegal practices, but here, after the initial illegal attempt to arrest proved futile, and the officers, as found by the jury, saw the defendant in the act of violating the law, they then acquired the right to make the arrest without a warrant. Under the circumstances here the legal and the illegal acts of the officers are separable, and it becomes the duty of this court to sustain the legal portion of the transaction, including the search and seizure incident to the legal arrest. A different question would arise if the evidence conclusively showed that the arrest was for a misdemeanor on suspicion merely and without a warrant, and therefore illegal; under those circumstances the things seized, incident to such illegal arrest, would not be admissible in evidence, if timely objections were made thereto.”

And see Davis v. State, 60 Okla. Cr. 198, 68 P. 2d 112.

It follows from the foregoing the motion to' suppress the evidence and defendants’ demurrers to the evidence were properly overruled.

Finding no error in the record which in our opinion would justify this court in setting aside these convictions,

the judgments of the lower court should therefore be affirmed. It is so ordered.

BAREFOOT and JONES, JJ., concur.


text:
    R. B. THORESON v. STATE.
    No. A-9662.
    March 21, 1940.
    (100 P. 2d 896.)

      Hughes & Dickson and Rizley & Dale, all of Guymon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant R. B. Thoreson was charged with one Harry Hall in the district court of Texas county with the offense of robbery, was tried, and a verdict was rendered finding the defendant “guilty of assault, as charged in the information herein and fix his punishment at 30 days in the county jail and pay a fine of $100.” Judgment and sentence was pronounced in accordance with said verdict, and an appeal has been taken to this court.

The information filed against the defendant, omitting the formal parts, reads as follows:

“That the said R. B. Thoreson and Harry B. Hall did knowingly, willfully, unlawfully, wrongfully and feloni-ously make an assault in and upon one Donald G. Neil by representing themselves to be officers of the law, thereby putting the said Donald G. Neil in fear of immediate and unlawful injury to his person if he, the said Donald G. Neil resisted, and did then and there under and by means of the use of force and putting in fear, unlawfully, willfully, wrongfully and feloniously against the will of him, the said Donald G. Neil take, steal and carry away from the present possession and immediate possession and immediate presence of him; the said Donald G. Neil, certain personal property to wit: One dollar and thirty-five cents ($1.35) in good and. lawful money of the United States of America with the unlawful, wrongful and felonious intent then and there on the part of them, the said R. B. Thoreson and Harry B. Hall to rob and deprive the said Donald G. Neil of said property and to convert same to- their own use and benefit; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

The proof in substance shows that the complainant, Donald Neil, was 25 years of age; lived in Cleveland, Ohio; that he had been out West and was returning to his home in Cleveland on November 8, 1938, when he stopped in Guymon to spend the night; that he was a hitchhiker and had worked for a farmer at Dalhart, Tex., that day before coming to- Guymon, and had $1.35 on his person when he arrived in Guymon; that, he met Hall and Thore-son at the Wheat. Belt Grill where he had come to see about a job in the restaurant; that Hall poured a drink of whisky into a glass and he drank it at Hall’s insistence; that he left Hall and Thoreson and went into the Recreation parlor. While he was drinking a cup of coffee, Thore-son and Hall came in and said, “You are going with us.” Neil was forced off the stool and pushed out of the restaurant. Thoreson’s pick-up was in front of the cafe. Thoreson got in first, then Hall, and then the complainant, with Thoreson under the wheel. They drove to the east end of the courthouse and stopped, and ordered the complainant out of the car. Thoreson ripped open the front of the complainant’s jacket, went through his pockets, and took out the $1.35. The jacket was introduced in evidence and showed where three buttons had been torn from it.

The complainant stated that he did not resist because he was facing Thoreson with Hall immediately behind him; that they all three then got back in the pick-up and drove about a mile and a half or two miles out on the highway where they put the complainant out and ordered him to leave towrn; that the complainant made his way back to Guymon and reported the incident to the officers the next morning; that the defendant was a son of a prosperous farmer of the Guymon community, who had resided there several years; that the day the offense is alleged to have occurred was election day, and the defendant Thoreson and Hall had been drinking too much because of the election spirit that prevailed in the community that night.

The evidence further shows the morning after the alleged offense occurred, when the officers started to look for the defendant, that they were unable to find him. That he was arrested several days later in California and returned to Texas county to face the charges growing out of these occurrences heretofore related.

Hall was charged jointly with this defendant, but entered his plea of guilty and was given a suspended sentence of five years in the state penitentiary. Hall testified for the state that he got in such a drunken condition that he lost his memory at the Wheat Belt Cafe and did not remember a thing that happened until about 6 o’clock the next morning.

The defendant did not take the stand. The testimony offered in his behalf was explanatory of his action in going to California, which was offered to refute the contention of the state that the defendant was fleeing to escape arrest because of this alleged offense.

The defendant assigns as error:

(1) Error of the court in permitting the county attorney, George M. Frittz, who as private attorney represented the codefendant Hall, to prosecute this action against the defendant Thoreson.

(2) Error of the court in submitting an instruction to the jury on the crime of assault.

(3) Misconduct of the county attorney in referring to the fact that the defendant did not testify in his closing argument to the jury.

In support of the first assignment, the defendant took the testimony of the county attorney who swore that he had known the defendant by sight for three or four years; that he was employed to' defend Harry Hall, the codefen-dant, subsequent to his arrest on this charge. That he appeared at the preliminary hearing of Hall and examined the witnesses who testified in that hearing, who were substantially the same witnesses who testified for the prosecution in the trial of Thoreson. That Hall subsequent to being bound over to- the district court entered his plea of guilty. That he never at any time during his employment by Hall discussed the connection of R. B. Thoreson with the case and did not talk to Thoreson about the case at any time. That Hall told him that his mind was a complete blank that evening and no mention of Thoreson was made in any way. That he talked to the witnesses after he took his oath as county attorney concerning the defendant Thoreson so as to prepare for the trial of Thore-son.

This court has held in Steeley v. State, 17 Okla. Cr. 252, 187 P. 821, and in Hall v. State, 24 Okla. Cr. 197, 217 P. 229, that an attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith. It is the duty of the court to see that a person on trial is not deprived of any of his statutory or constitutional rights. The members of the legal profession should have at all times the fullest confidence of their clients. If anything is done to abuse this confidence, the legal profession will suffer by the loss of the confidence of the people; and if the evidence in any case discloses that the prosecuting attorney might be possessed of some privileged information by reason of former services rendered by him, then it is the duty of the court to disqualify the prosecuting attorney.

In the case of Lewis v. State, 39 Okla. Cr. 119, 263 P. 473, 474, we laid down the following, rule:

“Where two or more defendants are jointly charged and a severance is taken, counsel appearing for one defendant is not by such fact alone precluded from aiding in the prosecution of another defendant.”

As was stated in the body of the opinion of that case:

“We do not perceive why the mere fact of employment of an attorney by a defendant jointly charged operates as a disqualification against his appearing against a codefendant.”

Since under our Code a codefendant may testify against the defendant on trial, an attorney cannot be said to be representing conflicting interests when he appears for a codefendant and later appears as prosecutor. The question of the disqualification of a county attorney depends upon the facts in each particular case, and unless a showing is made that the prosecutor has secured information from the defendant because of the confidential relationship which he had with the defendant through representation of the codefendant, which information concerns the offense with which the defendant stands charged, then the county attorney is not disqualified. An examination of the record herein does not disclose that the county attorney is disqualified, and we find no error in the action of the trial court in refusing to disqualify him.

The court over the objection and exception of the defendant gave the following instruction:

“If you find the defendant not guilty of the crime of robbery, and if you find the defendant not guilty of the crime of attempt to1 commit robbery, then you will next consider whether or not the defendant is guilty of the crime of assault.
“The statutes of Oklahoma provide that an assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.
“Assault shall be punishable by imprisonment in the county jail not exceeding 30 days, or by a fine of not less than $5 or more than $100 or both.
“Therefore, in this case, if you find from all the facts and circumstances, and beyond a reasonable doubt that on or about the 9th day of November, 1938, the defendant R. B. Thoreson and Harry B. Hall did knowingly, willfully, unlawfully and wrongfully make an assault in and upon one Donald G. Neil, by representing themselves to be officers of the law, thereby putting the said Donald G. Neil in fear of immediate and unlawful injury to his person if he the said Donald G. Neil resisted and did thereunder and by means of the use of force and putting in fear unlawfully, willfully and wrongfully and against the will of Donald G. Neil attempt to- take, steal and carry away from the present possession and immediate presence of him the said Donald G. Neil, certain personal property, to-wit, good and lawful money of the United States of America, with the unlawful and wrongful intent then and there on the part of them the said R. B. Thoreson and Harry B. Hall to rob and deprive the said Donald G. Neil of said property and to convert same to their own use and benefit, then and in that event you will find the defendant guilty of the crime of assault and fix his punishment at imprisonment in the county jail not exceeding 30 days or by a fine of not less than $5 or more than $100, or both.
“Otherwise you will find the defendant not guilty of assault.”

Assuming for the purpose-of discussing this information that simple assault is an included offense under the charge of robbery, still the above instruction is erroneous.

Instead, of clarifying the issue, the above instruction would only tend to confuse the jury and might cause them to think that the court expected a verdict of guilty of either the offense of robbery or of assault.

As was stated in the case of Love v. State, 12 Okla. Cr. 1, 150 P. 913, 916:

“When the defendant may be convicted of a lower degree of the offense charged, the instructions should cover the lower degrees, and the jury should have been instructed that if after a fair and impartial consideration of all the evidence in the case they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the information, then it would be their duty to consider as to whether he was guilty of the next lower offense embraced in the charge.”

The court never did instruct the jury that assault was an included offense in the charge of robbery, and that if they were not convinced beyond a reasonable doubt of the defendant’s guilt of robbery, then it would be their duty to consider whether he was guilty of the included offense of assault. Instead, the court, after giving the definition of assault and the punishment for conviction of the same, repeats the facts set forth in the information and states if the jury is convinced that the defendant committed those acts, then the defendant should be found guilty of the crime of assault. In instruction No. 4 the court made the same recitals as to the facts and stated that if the jury found those facts to exist they should find the defendant guilty of robbery as charged in the information. These statements are confusing to the jury. Hereafter, in this opinion, we shall consider the question as to whether or not the offense of assault is necessarily an included offense under the charge of robbery; but even though it should be an included offense, the instruction given by the court herein is erroneous.

Section 2884, O. S. 1931, 22 Okla. St. Ann. § 402, reads as follows:

“The indictment or information must be direct and certain as it regards:
“First [1]. The party charged.
“Second [2]. The offense charged.
“Third [3]. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

Section 2886, O. S. 1931, 22 Okla. St. Ann. § 404, reads as follows:

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

From the examination of these sections, we find that the information, with the single exception as stated in section 2886, O. S. 1931, 22 Okla. St. Ann. 404, must charge but one offense, and that the language must be definite and certain as regards that offense.

The general rule is that when a crime is divided into different degrees, that the greater degree always includes the lesser. We have given full weight to this rule, and it is the statutory law of this state. Section 3097, O. S. 1931, 22 Okla. St. Ann. § 916, reads as follows:

“'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

This section must be construed in connection with section 2886, O. S. 1931, 22 Okla. St. Ann. § 404, herein-before quoted, which provides that the information must charge but one distinct offense. The courts have no power to submit an instruction to a jury authorizing them to convict a defendant on any offense unless it is necessarily included in the offense with which he is charged in the information, with the exception that they may submit the question of attempt to commit such an offense. If, therefore, the offense of simple assault is not necessarily included in that of robbery, a defendant charged only with the offense of robbery cannot be convicted of assault.

Section 2542, O. S. 1931, 21 Okla. St. Ann. § 791, defines robbery as follows:

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

Section 2546, O. S. 1931, 21 Okla. St. Ann. § 794, provides :

“The fear which constitutes robbery may be either:
“First [1]. The fear of an unlawful injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or,
“Second [2]. The fear of immediate and unlawful injury to the person or property of anyone in the company of the person robbed, at the time of the robbery.”

Robbery may be with force and violence or by putting in fear. If the information alleges force and violence, it need not allege putting in fear or vice versa. See State v. McCune, 5 R. I. 60, 70 Am. Dec. 176, and lengthy explanatory note of various decisions cited thereunder.

An assault is defined as any willful and unlawful attempt or offer, with force or violence, to do1 a corporal hurt to another. Section 1865, O. S. 1931, 21 Okla. St. Ann. § 641.

In Cochran v. State, 4 Okla. Cr. 379, 111 P. 974, 975, this court had before it for determination the question as to whether or not the offense of riot was necessarily included in the offense of robbery. Judge Furman in that decision stated the following:

“* * # Force is not a necessary element in the crime of robbery. If personal property is wrongfully taken from the possession of another from his person or immediate presence and against his will, through fear of an unlawful injury, immediate or future, to the person or property of the person robbed, or of a relative of his or member of his family, such taking is just as much robbery as though it was committed by actual force. * *
“The statutory elements of the crime of riot are the use of force or violence, or threats to' use force or violence, accompanied by immediate power of execution. Unless these elements exist there can be no riot; but robbery may be committed with an entire absence of all of these elements. The offense of robbery may be committed when there was no' immediate force used or attempted to' be used, through fear of future injury to the person or property of the person robbed, or of any relative of his or member of his family. But this would not be true as to riot. We therefore cannot say that riot is a necessary element of robbery; and, if it is not a necessary element of robbery, neither can it be said that it is necessarily included in robbery.”

There is some evidence in the record herein that the defendant and his codefendant Harry Hall represented that they were officers of the law. A mere representation by the defendants that they were officers of the law, unless accompanied by some show of force or violence towards the person of the complainant, would not constitute an assault. In practically every case of robbery the offense of assault will be included therein, but a robbery may occur because of the fear of future injury to the property of the person robbed. Many instances could be related, where persons may be put in fear and give up their money when there was no offer with force or violence to do corporal hurt to the persons offended.

Robbery and assault are closely related. This court has never passed directly upon the question as to whether an assault is necessarily included in the offense of robbery. Some of the decisions from the courts of other states, notably California, Alabama, Mississippi, Michigan and Iowa, have held that assault is an included offense in robbery. Alabama and some of the other states have never passed a statute defining robbery, but still follow the common law. In those states which do have a statute defining robbery, the definition is practically the same as in Oklahoma ; and there is very little difference between the statutory definition of robbery and robbery as defined under the common law. In Oklahoma we have an additional qualifying statute defining what is meant by the word “fear” in the robbery statute. See section 2546, O. S. 1.931, 21 Okla. St. Ann. § 794, supina. If you consider the definition of robbery as given by our statute together with the meaning of the word “fear” as defined by section 2546, supra, it is plain .to be seen that there can be cases of robbery where there is no actual assault. The interpretation of this court in Cochran v. State, supra, sustains this view and convinces us that assault, though frequently included in robbery, is not necessarily an included offense.

In this particular case the evidence is sufficient to sustain a conviction for simple assault, but the court erred in submitting this question under the information filed herein because the information charges only the offense of robbery.

If at any time a county attorney is in doubt as to which of two felonious offenses have been committed, he may in his information set forth separate counts charging, each offense where both counts are based upon the same transaction. Section 2886, O. S. 1931, 22 Okla. St. Ann. § 404.

In this case, if the county attorney wishes the offense of simple assault to be submitted to the jury upon a retrial of this case, he should amend his information and set forth therein a count charging robbery and a second count charging some degree of felonious assault; and the offense of simple assault may be given to the jury under proper instructions because it is an included offense under whatever felonious assault may be charged in the second count.

It appears from the record through affidavits filed on behalf of the defendant that the county attorney in his closing argument used the following language:

“You have heard the witnesses from this witness stand testify that this crime of robbery was committed by this defendant, and this defendant has not denied it.”

When this statement was purportedly made by the county attorney, counsel for the defendant immediately objected and moved for a mistrial, which was overruled. The state introduced, as evidence upon the motion for a new trial, an affidavit signed by all the jurors who tried the case that they did not hear the county attorney make this statement.

The county attorney admitted that he made the statement : “The offense charged has never been denied.”

After the controverted statement had been made, counsel for the defendant requested the reporter to take the remainder of the county attorney’s argument, which was done and a copy of which is included in the record, but nothing objectionable appears therein.

Section 3068, O. S. 1931, 22 Okla. St. Ann. § 701, reads as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

We have repeatedly held that it is fatal error for a prosecutor to refer either directly or indirectly to the fact that defendant did not testify. See the following cases: Perkins v. Territory, 17 Okla. 82, 87 P. 297; Wells v. State, 29 Okla. Cr. 11, 231 P. 1087; Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Schrader v. State, 40 Okla. Cr. 261, 268 P. 325; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240.

Since the record herein is not clear as to whether or not the county attorney made the statement charged to have been made by him, and because of the fact that this case must be sent back for a new trial on other grounds as hereinabove set forth, it is not necessary to pass on this question. Upon a retrial of this case, however, the court should give his undivided attention to the conduct of the trial so that he may know what statements counsel make in their arguments; and he should be very careful to see that counsel do' not travel outside the record or go beyond the bounds of legitimate argument.

For the reasons hereinabove assigned, this cause is reversed and remanded to the district court of Texas county, with orders to grant the defendant a new trial.

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