text:
    JOHN HADDOCK v. STATE.
    No. A-7791.
    Opinion Filed April 18, 1931.
    (298 Pac. 304.)
    Kenneth B. Kienzle, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of the crime of grand larceny, and his punishment fixed by the court at imprisonment in the state penitentiary for 2% years.

The evidence of the state was that on June 30, 1929, defendant employed certain parties with trucks and caused to be hauled from the Wallace lease $4,000 worth of pipe, the property of the Skelley Oil Company. Three truck loads of this pipe were hauled to the railroad station at Harjo, where the men in charge of the trucks were arrested. That defendant on the preceding day had arranged with the station agent for a car to ship this pipe to Pampa, Tex. When the truckmen were arrested they told who hired them to haul the pipe. The defendant was arrested that night. After his arrest he refused to inform the county attorney whom he was taking this pipe for and with whom be was working, and refused to disclose Ms associates. Tbe superintendent in charge of the Skelley Oil Company property testified that the pipe was taken without the consent of the company.

The defendant testified that he was working for one Mr. Michaelson of Wewoka, and that Michaelson told him he had bought the pipe and he was merely attending to the shipment for him.

Defendant contends first that the court erred in overruling his motion for a continuance.

The record discloses that defendant’s counsel dictated the following motion into the record:

“Mr. Kienzle: Comes now the defendant at this time and moves the court to continue this case and grant a continuance to the defendant, for the reason that the defendant has diligently attempted to secure his witnesses, and has located two of these witnesses in the state of Oklahoma and can have them here for trial if he is given a reasonable continuance, and the defendant in support of this motion offers to introduce testimony to that effect; that he has been diligent in attempting to secure these witnesses, and can secure them if he is given time in which to do so, and that he cannot safely proceed to trial at this time because of the absence of these material witnesses, and that their testimony cannot be furnished by any other witnesses, and that the testimony of these witnesses is material and if admitted by the state would acquit the defendant.”

This motion was overruled by the trial court.

This motion was insufficient under sections 584 and 2654, C. O. S. 1921, and the court did not err in overruling the same.

Defendant next contends that the court erred in permitting the witness Mercer to testify to hearsay evidence when the records of the company could have been easily obtained.

This witness testified that he was field superintendent for the Skelley Oil Company in charge of this property; that the stolen property was located in section 17 — 8—5 and consisted of 2,000 feet of 6%-inch pipe and 1,600 or 1,700 feet of 8%-inch pipe; that all of the 6%-inch pipe was taken and most of the 8%-inch pipe; that this property was located in Pottawatomie county and was of the value of from $3,000 to $3,500.

On cross-examination the witness admitted that he had records of the company showing these facts, but did not have the records with him. Then defendant moved to strike the testimony because the records of the company were the best evidence. The trial judge then asked the witness if the value of the pipe exceeded $20, and he answered that it most certainly did.

The material facts in the case were, Did the defendant take, steal, and carry away, without the consent of the Skelley Oil Company, property of said company exceeding the value of $20, with intent to deprive the owner thereof? These facts could all be proved without any reference to the records of the company where they were in the personal knowledge of the witness.

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

The evidence supports the verdict of the jury and the errors of law complained of are not sufficient to' require a reversal of the case.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FRANK MYERS v. STATE.
    No. A-7833.
    Opinion Filed April 18, 1931.
    (298 Pac. 304.)
    C. H. Wyand and A. W. Billings, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted of driving an automobile upon the public streets of the city of Woodward while under the influence of intoxicating liquor, and was sentenced to serve a term of one year in the penitentiary and to pay a fine of fl,500.

The appeal was filed in this court April 29, 1930. The state has filed its motion to dismiss the appeal, first, because no notice of appeal was served on the county attorney or court clerk as provided by law, and no summons in error served upon the Attorney General or waived by the Attorney General. An examination of the record shows that the contention of the Attorney General is correct. A defendant desiring to appeal in a criminal case must serve a written notice upon the court clerk and upon the county attorney. Where the notice is not served as required by law, this court does not acquire jurisdiction. Sharer v. State, 40 Okla. Cr. 420, 269 Pac. 511.

The motion of the Attorney General is sustained, and ' the attempted appeal is dismissed.


author: DAVENPORT, P. J.

text:
    J. B. CHAMPION v. STATE.
    No. A-7626.
    Opinion Filed April 18, 1931.
    (298 Pac. 303.)
    Earl A. Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor with intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $100 and costs, and to be imprisoned in the county jail for 60 days. The defendant moved to suppress the evidence on the ground that the affidavit and warrant were insufficient to authorize the search of defendant’s home.

The record discloses that, at tlie time charged, a deputy sheriff and some other officers procured a search warrant to search the following property “at number First house west of John Kincaid’s facing south on Fifteenth Aye., at No. 2 N. W. .Street, in a certain building described as follows; one-story frame building occupied as a residence by J. B. Champion, in Carter County.” It is not stated of what town, if any, the first house west of John Kincaid’s facing south on Fifteenth avenue, at No. 2 N. W. Street, is a part. The warrant in this case is insufficient under article 2, Bill of Bights, § 30, Const. The affidavit with which the search warrant was obtained is insufficient under section 7013, Comp. St. 1921, to authorize the issuance of the warrant. The only evidence in the case being obtained by an illegal search of the residence of the defendant, it was error for the trial court to overrule the motion to suppress the evidence.

For the reason stated, the case is reversed.

CHAPPELL and EDWARDS, JJ., concur.


author: CHAPPELL, J.

text:
    STATE v. Q. P. McGHEE.
    No. A-7771.
    Opinion Filed April 11, 1931.
    Withdrawn, Corrected, and Refiled April 23, 1931.
    (298 Pac. 896.)

      Perry Porter, for defendant in error.
   CHAPPELL, J.

The defendant filed his motion to dismiss the case, for the reason that more than six terms of court had passed since the information was filed, and the state had failed to try said cause, although defendant was present at each term of court demanding such trial.

The trial court heard evidence on this motion, and found that more than six terms of court had passed since the information was filed, and that defendant had been present demanding trial, and that the state had shown no sufficient cause why said case had not been tried, and thereupon dismissed the case.

No briefs have been filed by the state, and no appearance made for oral argument. An examination of the record discloses that the case was properly dismissed for failure of the state to prosecute within the time required by law.

For the reason stated, the appeal is dismissed.

DAVENPOBT, J., concurs. EDWABDS, J., absent, not participating.


text:
    CAREY PARKER v. STATE.
    No. A-7892.
    Opinion Filed April 25, 1931.
    (298 Pac. 627.)
    • Jesse J. Todd and Percy Powers, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 30 days.

Defendant complains of numerous errors, but it will only be necessary to consider one of them to dispose of the case.

The record discloses that the county attorney, over the objection of the defendant, and with the consent of the court, introduced in evidence the affidavit and search warrant used to obtain the evidence upon which the conviction was had. This case was tried on the 10th day of June, 1929.

On the 29th day of May, 1926, in the case of Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895, this court held that it was reversible error to introduce such evidence over the objection of the defendant.

On October 6, 1928, in Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858, this court followed the rule laid down in Williams v. State, supra.

On October 8, 1928, in the case of Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370, this court held that the introduction of such affidavit deprived the defendant of his constitutional right to be confronted by the witnesses.

This court has uniformly held that evidence of this character is inadmissible. There is no excuse for county attorneys making this mistake, nor is there any excuse for trial judges overruling objections tO' the admission of this character of evidence.

In Ford v. State, supra, this court laid down specific directions to courts and county attorneys with reference to the method of handling objections to the sufficiency of affidavits and search warrants. If the officers refuse to follow these authorities, this court must reverse the cases and send them back for trial according to law.

For the reasons stated, the cause is reversed.

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


author: EDWARDS, J.

text:
    VIRGIL SCOTT v. STATE.
    No. A-7614.
    Opinion Filed April 25, 1931.
    (298 Pac. 626.)

      H. W. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of selling intoxicating liquor and sentenced to pay a fine of $250 and to serve 90 days in the county jail.

The only evidence offered by the state in chief was the agreed statement of the county attorney as to the testimony of two absent witnesses who, if present, would testify that at the time charged defendant sold a half pint of whisky to one of them. It is:

* * That on the 24th day of February 1929, Coyt Feaster, with his brother, Elder Feaster, went to Bill Merits filling station in the town of Gracemont, Oklahoma, and saw Virgil Scott there and Elder Feaster told him he wanted to buy some whisky; that the said Virgil Scott reached into his pocket and produced a half-pint of whisky which he sold to Elder Feaster and Coyt Feaster for which the said Elder Feaster paid him the- sum of 75 cents.”

Defendant, as a witness in his own behalf, denied that at the time charged or any other time he sold any whisky to the witness. On cross-examination he was examined at length as to other transactions with other persons, purely collateral, including questions as to' statements made to- him by other persons. These various suggestive and insinuating questions were answered in the negative. The state was then permitted to introduce witnesses to impeach defendant on these collateral matters. When a defendant takes the stand as a witness, he is subject to cross-examination the same as any other witness and may be discredited and impeached as any other witness. McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256; Queen v. State, 23 Okla. Cr. 147, 212 Pac. 1021; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162; Golding v. State, 44 Okla. Cr. 433, 281 Pac. 322. It is a general rule that one cross-examining a witness is concluded by the answers of the witness to questions on collateral matters. 1 Greenleaf, § 449; Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, 202; Willis v. State, 13 Okla. Cr. 700, 167 Pac. 333; State v. Haynes, 7 N. D. 70, 72 N. W. 923. These various questions amount to an attack on the character of defendant which had not been put in issue by him. This was error. Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; 3 Ency. of Ev. 12.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    PAUL D. COLE v. STATE.
    No. A-7993.
    Opinion Filed April 25, 1931.
    (298 Pac. 892.)
    Billingsley & Stanley and Freeling & Box, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of murder, and his punishment fixed by the jury at death.

The state charged that on the 24th day of March, 1930, the defendant and ohe Prank Hunt murdered Ernest Irby. A severance was taken, and Cole was tried first. Hunt afterward pleaded guilty, and his punishment was fixed at imprisonment in the state penitentiary for the term of his natural life. In the trial of the case at bar, Hunt turned, state’s evidence and told a complete story of the cause, the motive, the steps taken, and the circumstances surrounding the commission of the crime.

The evidence of the state was that in the latter part of March, 1930, there was pending in the'United States District Court for the Eastern District of Oklahoma a prosecution against the defendant, the deceased, and one Tom Woods, in which they were charged with conspiracy to violate the federal prohibitory laws. The deceased and Woods had made sworn statements to the federal officers acknowledging their guilt of the crime and implicating the defendant therein. The evidence of the state was that this killing, was the outgrowth of the prosecution in the federal court, and that the motive for the taking of deceased’s life was the desire on the part of the defendant to get rid of deceased as a witness against him in the federal case.

The witness Hunt testified that he was a lawyer located in Tulsa; that he met the defendant in the fall of 1929; that they became intimately acquainted and bosom associates; that defendant told Hunt about the indictment in the federal court and that he was promised a position with the Sun-Ray Oil Company that would make him $18,000 or $20,000 a year, but he could not get the position until he got out of the trouble that he was in in the federal court; that, knowing Hunt was a lawyer, he consulted with him about how to get rid of the case in the federal court; that defendant borrowed $400 and Hunt and defendant went to see Irby and Woods and tried to persuade them to change their testimony or to leave the state; that they went to Shawnee and consulted Park Wyatt, an attorney there, upon the question of what effect it would have on their case if deceased and Woods failed to appear; that defendant and Hunt went to Wewoka and saw Irby, and he refused to change his testimony or to leave the country; that they thereupon decided to kill him; that they induced the deceased to go with them to Lake Wewoka, where they shot and killed him; that, after shooting him, they wired a heavy piece of pipe to the body and towed it out into the middle of the lake and sunk it; that after deceased disappeared from his home on the evening of March 24, 1930, in company with the defendant, and upon his failure to show up the next day, the wife of deceased got into' communication with defendant and was informed that the deceased had gone to Arizona, and would return some time in the future; that he was all right and for them not to worry about it; that, at the time this conversation was had with Mrs. Irby, the deceased had been murdered and his body sunk in Lake Wewoka; that after the homicide was committed they went back to Shawnee, and there called Attorney Wyatt over the phone in order to establish their alibi; that they went back to Wewoka the next day and from there to Ok-mulgee, where the case in the federal court was continued as to' defendant because of the failure of deceased to appear against him; that on the 10th day of April, 1930, the caretaker at Lake Wewoka, in Seminole county, discovered floating in said lake the body of a man in an upright position, with one arm waving in the breeze; this caretaker took a boat and went out into the middle of the lake and towed the body in, and then notified the officers ; that this body was afterwards identified as the body of Ernest Irby, the deceased, who had been engaged in the drug business in the city of Wewoka, and who had disappeared from that city in company with defendant about 17 days prior thereto ; that an examination of the body revealed that deceased had been shot in the head prior to the sinking of the body in Lake Wewoka; that defendant and Hunt were arrested soon after the discovery of the body.

Defendant admits having a conversation with the wife of deceased and telling her that her husband was in Arizona, but said he did so because Hunt had told him the deceased had gone to Arizona. The defendant, testifying for himself in the trial, admitted practically everything that Hunt testified to as to their various whereabouts, the consultation with Attorney Wyatt, and other things as to which Hunt was corroborated, but denied that he had anything to do with the procuring of the pistol, the shooting of the deceased, or the sinking of his body in Lake Wewoka. Defendant testified that on the evening of March 24, 1930, he left Hunt with the deceased in the city of Shawnee, Okla., giving' Hunt $300 with which to send Irby out of the state, and that defendant then went on to Oklahoma City and stayed at the Lawrence Hotel the night of March 24th; that later he met Hunt, who told him that Irby had gone to Arizona; that Hunt had given the $300 that defendant had given him to Irby; that the first he knew that Irby was dead was on the 10th day of April, when Hunt read to' him an account of the discovery of the body while they were in a room in a hotel.

Defendant contends, first, that the trial court erred in admitting incompetent, irrelevant, and immaterial testimony which tended to show that the defendant was guilty of separate crimes disconnected with the crime for which he was being tried.

It is earnestly contended that the evidence of the indictment of the defendant in the federal court and of the circumstances surrounding this indictment were inadmissible, for the reason that such evidence tends to establish other crimes independent of the one upon which defendant was being tried.

The state contends that the admission of evidence of other offenses was proper in this case because the evidence tending to show the guilt of the defendant of other offenses also tends to show the motive for the commission of the homicide, that this offense was directly the outgrowth of the fact that defendant had committed the other offenses testified to, and that at that time he stood charged with its commission in the federal court of the Eastern district of Oklahoma.

As a general rule, evidence of other offenses is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. But to this general rule there are certain well-settled exceptions. One of these exceptions is that evidence of another offense is relevant and admissible when it tends to prove some element of the offense charged, as when it tends to show guilty intent or motive of the offense charged. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418; State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807.

In Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820, this court said: “It is a general rule in criminal prosecutions that evidence of any offense other than that for which the prosecution is had is inadmissible. To this rule there are exceptions, and one of them is that evidence which tends to show motive or intent may be given against a defendant, although its introduction may involve defendant in the commission of other offenses.” See, also, Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696.

In the case at bar the motive for the commission of the homicide grew out of the collateral crime itself. The homicide could not have been clearly understood by the jury unless they were permitted to know the real motive the defendant had for its commission. Therefore the evidence of defendant’s probable guilt of the other crime and the fact that there was a prosecution pending against him for its alleged commission, came within the well-grounded exception to the general rule that evidence of other offenses is not permissible in order to prove the particular offense charged.

The trial court therefore did not err in admitting the evidence of this collateral offense.

Defendant next contends that the trial court erred in permitting Mr. Park Wyatt, an attorney, to testify to certain confidential communications made by this defendant to him in his capacity as an attorney for the defendant, and which conversations were permitted to be detailed without the consent of this defendant.

The state contends that the communications testified to were not privileged, for the reason that they concerned the proposed commission of a crime, in the future, by this defendant as a client, and did not relate to a past transaction.

When the witness Wyatt was first called to the stand, objection was made to any testimony on the ground that the confidential relation of client and counsel existed, and that said evidence was therefore inadmissible. After some consultation and private examination by the court, the court said:

“Well, I will only allow such testimony in relation to future crimes, and not any testimony in relation to past offenses. Do not ask anything about the federal court case. Just ask him whether or not he was consulted in relation to future offenses. The law is pretty plain on that. Tell the jury to come in.”

Thereupon the witness Wyatt testified:

“Q. Did you have any conversation with Paul Cole and Prank Hunt on the 19th of March, 1930? A. Yes, sir.
“Q. Whom did you talk to, Mr. Wyatt, or did you talk to both of them together at the same time? A. Oh, I think Mr. Hunt came into my private office first and said a few words, and then Mr. Cole came there with him.
“Q. Mr. Cole came in with him? A. Yes, sir; the conversation that we had, all three of us were present.
“Q. Did defendant talk to you in relation to the commission of some future crime? A. Let me advise you privately first before I answer the question. ("Whereupon court and counsel hold a private conversation between themselves out of the hearing of the jury.) A. In the closing of the conversation he asked me what would be the effect on a certain case he had pending if a certain witness was out of the way.
“The Court: Q. What did he tell you? A. Tom Woods and Ernest Irby.
“Q. Was that before or after the death of Ernest Irby? A. That was before the death of Ernest Irby.
“Mr. Bishop: Q. Mr. Wyatt, in the general conversation that you had with the defendant, Paul Cole, and Prank Hunt, state whether or not they told you why, for what reason it was necessary to get these witnesses out of the way to beat the case in the federal court? A. Yes, sir.
“Q. What was the statement made with reference to why it was necessary to get the witnesses out of the way to beat their case in the federal court? A. Mr. Cole said that he had a job offered him with the Sun Bay Oil Company at the salary of $18,000 a year and that he had to get rid of this matter before he could go to work for the Sun Bay Oil Company, that Prank Hunt would have a job with him. That was the substance of the conversation.
“Q. At the time they asked you what would be the effect on the case in the federal court if Ernest Irby and Tom Woods were gotten out of the way, what did you tell them? A. I told them that that was a matter I didn’t want to discuss, but that if that was the only witness against Cole it would, probably end the litigation against them. That if they persisted in that line of endeavor they would be in a worse predicament than they would be over a bootlegger case and would be up against it for obstructing justice in the federal court.
“Q. What was said in that subsequent conversation about moving or transporting either Ernest Irby or Tom Woods to any place? A. The last conversation, I think it was on the morning of the 24th of March, 1930, to the effect that Tom Woods — Tom Woods had agreed to take the rap, that was the statement. And that Ernest Irby had agreed to get out of the way and stay out of the way. And they told me in one other conversation that Ernest Irby had gone. They never did tell me where he had gone to, or where he was going or where he agreed to go.”

Section 589, C. O. S. 1921, provides:

“The following persons shall be incompetent to testify: * * *
“Fourth: An attorney, concerning any communications made to him by his client, in that relation, or his advice thereon, without the client’s consent.”

In the case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, this court had under consideration the precise question involved in this case, and there said:

“Professional communications between a lawyer and his client are not privileged, when such communications are had for the purpose of being guided or assisted in the commission of a crime.”

The great weight of authority is that, where the consultation is concerning a crime to be committed in the future, the communication is not privileged, and the attorney may testify thereto.

Wigmore on Evidence, vol. 4, page 3216, § 2298, states the rule thus:

“It has been agreed from the beginning that the privilege cannot avail to> protect a client in concerting with the attorney a crime or other evil enterprise; and for the logically sufficient reason that no such enterprise falls within the just scope of the relation between a legal adviser and his client.”

In 28 R. C. L. page 568, § 158, the rule is stated:

“It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose, or in furtherance of a lawful end. Accordingly, communications made to counsel prior to the commission of a crime which is contemplated by the so-called client, and in reference to the perpetration thereof, or for the purpose of being guided or assisted therein, are in no sense privileged and the attorney may testify thereto.”

See, also, Standard Fire Ins. Co. v. Smithhart, 183 Ky. 679, 211 S. W. 441, 5 A. L. R. 972; Commonwealth v. Dyer, 243 Mass. 472, 138 N. E. 296; Dyer v. Commonwealth of Massachusetts, 262 U. S. 751, 43 S. Ct. 700, 67 L. Ed. 1214; Lockhart v. Washington Gold & Silver Mining Co., 16 N. M. 223, 117 Pac. 833; Ott. v. State, 87 Tex. Cr. R. 382, 222 S. W. 261; State v. Richards, 97 Wash. 587, 167 Pac. 47; In re McDonough, 170 Cal. 230, 149 Pac. 566, L. R. A. 1916C, 593, Ann. Cas. 1916E, 327; Gebhardt v. United Rys. Co. of St. Louis (Mo. Sup.) 220 S. W. 677, 9 A. L. R. 1076; Anderson v. State, 98 Tex. Cr. R. 449, 266 S. W. 159; In re Elliott, 73 Kan. 151, 84 Pac. 750.

The trial court properly excluded the evidence of the attorney concerning the indictment for liquor conspiracy pending in the federal court and limited the testimony to the other transaction, which was the commission of the crime charged in the case at bar. It was not error, therefore, for the trial court to admit such evidence.

Defendant next complains that the court erred in refusing and ruling out legal evidence on the part of the plaintiff in error.

A careful examination of the record discloses that the defendant made no offer tO' prove what the answer of the witness would have been. Where objection is sustained to the evidence offered, the party complaining should dictate into the record what he expects to prove by the answer of the witness. Where this is not done, this court is unable to tell whether the evidence is competent or incompetent. Levine v. State, 50 Okla. Cr. 157, 296 Pac. 758.

It appears from the form of the question that everything which the question purported was subsequently got before the jury, so that the defendant was not prejudiced or injured by the ruling of the court.

The evidence of the state established one of the most cold-blooded murders in the annals of criminal jurisprudence, a murder deliberately planned and systematically and cold-bloodedly executed. The punishment of death fixed by the jury is overwhelmingly supported by the evidence and duly merited by the defendant.

For the reasons stated, the cause is affirmed. The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Seminole county be carried out by the electrocution of the defendant on the 10th day of July, 1931.

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


text:
    BENNIE NICHOLS v. STATE.
    No. A-7909.
    Opinion Filed April 25, 1931.
    (298 Pac. 886.)
    B. Donald iSlee, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of murder, and his punishment fixed by the jury at death.

The evidence of the state was that the defendant, a negro, killed Jack Horton, night watchman of the Ada Compress Company, by hitting him on the head and body with a heavy club, thereby crushing his skull and causing immediate .death; that the killing was a most brutal one, the motive being robbery.

Defendant was jointly charged with one Bessie Simpson, a negro woman. Defendant took a severance, and the state elected to try him first. The Simpson woman testified for the state in this trial, over the objection and exception of the defendant, and the fact of her giving testimony forms the basis of the chief assignment of error relied upon by counsel for defendant for a reversal of the judgment.

The evidence of the state is sufficient to support the verdict of the jury, and warrants the imposition of the extreme penalty of death, unless the errors complained of by defendant are sufficient to require a reversal of the case.

The errors complained of are: (1) That the court erred in permitting Bessie Simpson to testify as a witness against the defendant, over his objection and exception; (2) error in not granting defendant’s request to instruct the jury to disregard the statement of the county attorney in so far as it dealt with the evidence proposed to be given by Bessie Simpson.

These two assignments of error involve the same legal proposition, and will therefore be considered together.

It was the claim of defendant that Bessie .Simpson was his common-law wife, and hence incompetent to testify as a witness against him; this not being a crime committed against her.

Section 2699, C. O. S. 1921, provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.”

Section 2696, C. O. S. 1921, provides:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.”

Section 2696, supra, has been construed in Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359; Montgomery v. State, 13 Okla. Cr. 652, 166 Pac. 446; Bradshaw v. State, 16 Okla. Cr. 624, 185 Pac. 1102.

There was therefore no legal impediment to the co-defendant testifying voluntarily, unless the facts disclose that she was the wife of defendant at the time she gave the testimony.

When the state offered Bessie Simpson as a witness, the following record was made:

“Direct Examination
“By Mr. Dean:
“Q. State your name to the court and jury? A. Bessie Simpson.
“By Mr. Slee: I would like to conduct a preliminary examination of this witness, if the court please—
“By the Court: All right—
“By Mr. Slee:
“Q. Bessie, how long have you known Bennie? A. Nearly two' years.
“Q. Have you known him ever since he has been here in Ada? A. Yes, sir.
“Q. Since he has been in Ada? A. Yes, sir, and before.
“Q. Is there any reason why you and Bennie should-n’t have married?
“By Mr. Dean: We object to- that as incompetent, irrelevant and immaterial—
“By the Court: You would have to' prove straight marriage—
“By Mr. Slee:
“Q. You say you have been living with him for the past eight months? A. Yes, sir.
“Q. Did you consider him your man, Bessie?
- “By Mr. Dean: We object to that—
“By the Court: You would have to prove straight marriage — let her state the facts—
“Q. (by Mr. Slee) You have lived at Bennie’s house? A. Yes, sir.
“Q. Bennie furnished the house for you? A. Yes, sir.
“Q. Bennie furnished the furniture? A. Yes, sir.
“Q. He bought the food? A. Yes, sir.
“Q. You lived with him as husband and wife? A. Yes, sir.
“By Mr. Slee: On this showing, made, we hold this witness can’t testify in this case — that she is the common-law wife of Bennie Nichols.
“By Mr. Dean:
“Q. You are not husband and wife, are you? A. No, sir.
“Q. You never held yourself out as his wife? A.. No, sir.
“Q. He never held you out to the people that he was your husband or you was his wife- A. No, sir.
“Q. You never married him? A. No1, sir.
“By the Court:
“Q. You mean you just stayed together, but neither ' one of you claimed the other as husband or wife? A. Yes, sir.
“By Mr. Dean:
“Q. Well, did you intend to be married or just tell people you were married to give you an excuse to live together? A. Yes, sir.
“By Mr. Slee: I think the court should take judicial knowledge that a common-law marriage is recognized in this state, your honor—
“By the Court:
“Q. During the time you lived with him, did you associate with more than one man? A. Yes, sir.
“Q. You did associate with more than one? A. Yes, sir.
“Q. Any time you wanted to? You didn’t just associate with him alone? A. Oh, he is the only one I associate with — colored.
“Q. Did you claim to be his wife just as a matter of convenience? A. There wasn’t no convenience.
“Q. Or did you really intend — what was your real intent about your marriage— A. I was intending to marry him if he would marry me.
“Q. (by Mr. Dean) But you never had married? A. No.
“Q. And you really didn’t consider you were married until you were married? A. No.”

Since the defendant failed to take the witness stand, we have nothing directly from him as to what his relations with Bessie Simpson were, and must rely entirely upon her testimony to determine the question of whether a common-law marriage relation actually existed between the defendant and Bessie Simpson.

In Draughn v. State, 12 Okla. Cr. 479, 158 Pac. 890, L. R. A. 1916F, 793, this court said:

“Marriage in its legal sense is a civil contract, and where competent parties agree to become man and wife, it is not indispensable that a marriage license issue and that a clergyman be present to authorize and confirm the contract, in order to give validity to the marriage.
“Statutes regulating the mode of entering into the marriage contract do not confer the right that has existed ever since there were two human hearts, and such statutes are not within the principle that, where a statute creates a right and provides a remedy for its enforcement, that remedy is exclusive; hence common-law marriages in this state, although in derogation of the statutory directions as to formalities, are valid, since such marriages are not expressly forbidden by our statutes.”

Two questions are presented by the record in, the case at bar:

(1) What constitutes a common-law marriage?
(2) Do the facts in this record show Bessie Simpson to be the common-law wife of the defendant?

In re Love’s Estate, 42 Okla. 478, 142 Pac. 305, L. R. A. 1915E, 109, that court said:

“A common-law marriage exists where competent parties agree to be and become immediately man and wife and pursuant thereto enter into and maintain thereafter the marriage relation.”

In the case of Hughes v. Kano, 68 Okla. 203, 173 Pac. 447, 448, that court defines common law as:

“A common-law marriage may exist in this state, and when parties capable of entering into the marital relation agree to' be and become husband and wife, and in pursuance of such agreement enter into and thereafter maintain marriage relation, a common-law marriage exists.”

To the same effect is the case of Baker v. Jack, 112 Okla. 142, 241 Pac. 478.

In re Wells’ Estate, 123 App. Div. 79, 108 N. Y. S. 164, 166, that court said:

“A common-law marriage is defined as any mutual agreement between the parties to be husband and wife in praesenti, especially where it is followed by cohabitation, if there is no legal disability on the part of either to contract matrimony.”

In re Callery’s Estate, 226 Pa. 469, 75 A. 672, that court said:

“A common-law marriage is not affected by occasional cohabitation after an express promise to have a marriage ceremony performed, which is not fulfilled. Cohabitation and reputation conjoined are the essential facts from which a presumption of common-law marriage arises.”

The first essential of a common-law marriage is a mutual understanding and agreement between two parties capable of entering the marital relation to become husband and wife.

Assuming that Bessie Simpson and Bennie Nichols neither had any legal impediment to contracting marriage, under the evidence did they ever agree so to do? Bennie, the defendant, is absolutely silent as to what his intentions were. Since he says nothing, and there is no' other evidence in the record upon the subject, we have to rely upon what Bessie Simpson says.

It will he noted from the evidence of Bessie Simpson that she testified that they were not husband and wife; that they never held themselves out as husband and wife; that they just stayed together, and neither one claimed the other as husband or wife; that the witness associated with other men while maintaining this relation with the defendant; that witness intended to marry defendant if he would; and that she did not consider they were married.

It clearly appears from the evidence that there was no mutual agreement in praesenti between these parties to be husband and wife before they began to cohabit with each other. Theirs was simply a state of fornication and not marriage. It takes more than this to create the relation of common-law marriage in the state of Oklahoma. The interpretation of the law as contended for by defendant would permit him to commit a most dastardly murder and then defeat justice by prohibiting the state from using as a witness the woman with whom he is maintaining illicit sexual relations on the pretense that she is his common-law wife.

The trial court did not err, therefore, in permitting the witness, Bessie Bimpson, to testify for the state and against the defendant.

Defendant next contends that the court erred in permitting the witness Luther Condron to testify to the finding of a pocketbook at the scene of the tragedy, for the reason that there is no testimony that said pocketbook was the property of the deceased, Jack Horton, or of the defendant.

One Stubblefield, a witness for the state, testified to the finding of tbe pocketbook within four or five feet of the body, and that it was the property of Jack Horton, the deceased. This evidence was admissible for the purpose of establishing robbery as the probable motive for the crime. It was also admissible as tending to corroborate the testimony of Bessie Simpson.

Defendant next contends that the court erred in permitting the witness Lillian Peek to testify concerning certain voices heard by her on the night of the murder.

Bessie Simpson testified that, when she and Nichols were returning from the compress to the room they were occupying on the night of the homicide, they passed a house where a dog barked, and that some conversation by defendant followed.

Lillian Peek testified that she was sick that night and was up to take medicine at about the hour the murder occurred; that she lived on the road from the compress to the room the defendant and Bessie Simpson occupied; that she heard a dog bark and heard a woman’s voice, but was unable to state that this was the voice of Bessie Simpson. Her testimony was competent as a circumstance tending to corroborate Bessie Simpson in her statement that she and the defendant were there that night and that a dog. barked, as she testified.

Defendant next contends that the judgment is contrary to instruction No. 5, in that there is no evidence of a premeditated design to effect death.

Sections 1734 and 1735, C. O. S. 1921, in substance provide that a design to effect death is inferred from the fact of the killing, and that a design to effect death sufficient to' constitute murder may be formed instantly before committing the act.

Under the evidence and the facts and circumstances in this case, there is no merit in this contention.

Finally, defendant contends that the witness Bessie Simpson is an accomplice, and that there is no sufficient corroboration of her testimony.

The evidence of the state was that the defendant went to the place where the Simpson woman was staying at about 4 o’clock in the morning, and forced her to get up and accompany him to the compress for the purpose of robbing the deceased while she was having intercourse with him, that the witness received only $1 from deceased, and that, when she told defendant she had not taken deceased’s money from his person, defendant in anger seized a club and proceeded to beat the deceased to death.

It appears from these facts that whatever Bessie Simpson did was done because of the duress of defendant, and not voluntarily, and that, while she was present at the scene of the homicide, she took no part in it by way of word or act of encouragement or assistance.

In Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822, this court said:

“It is error to- instruct the jury that a person who stands by and consents or acquiesces in the commission of a crime is a participant therein. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or he must aid, assist, abet, advise, or encourage its commission.”

In Carrico v. State, 16 Okla. Cr. 118, at page 124, 180 Pac. 870, 872, in the body of the opinion, this court said:

“Mere acquiescence is not sufficient to establish guilt. It must be shown either that the defendant committed the offense, or that he aided, abetted, or assisted in its commission, or that he procured it to be done.”

There is no merit to the defendant’s contention that Bessie Simpson was an accomplice.

In addition to this, Bessie Simpson is corroborated by the finding of the club with human blood on it. She is corroborated by the fact that the shoes of defendant that he wore that night had human blood on their soles. She is corroborated by the finding, of the deceased’s empty purse. She is corroborated by the testimony of Annie McMillan.

It was not necessary that the testimony of Bessie Simpson be corroborated, but, even so, she is corroborated upon all the material facts in the case by other competent evidence.

The record in this case discloses a most brutal murder. The overwhelming evidence of guilt adduced by the state against the defendant and left unexplained by him fully justifies the extreme penalty imposed by the jury.

For the reasons stated, the cause is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Pontotoc county be carried out by electrocution of the defendant on the 10th day of July, 1931.

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


text:
    L. T. LITTRELL v. STATE.
    No. A-7765.
    Opinion Filed April 11, 1931.
    Rehearing Denied May 2, 1931.
    (298 Pac. 308.)
    C. W. Herod, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted on a charge of having possession of intoxicating liquor with intent to violate the prohibition laws of the state, and was sentenced to pay a fine of $150 and to be imprisoned in the county jail for 60 days.

The testimony in substance in this case shows that the defendant and another party were driving on one of the streets in the city of Woodward, Okla., and ran into another car, and the car in which they were driving was turned over. A crowd assembled, and the city marshal appeared on the scene and arrested the defendant and took him to jail. The testimony is conflicting as to whether or not the marshal placed the defendant under arrest on the charge of being intoxicated on a public street before he searched the car and found a jar of whisky or made the arrest after he had found the whisky in the defendant’s car. The city marshal testified that he arrested the defendant and the party with whom he had been driving for the reason that he was intoxicated on the public street, and then searched the car and found the whisky. Other testimony shows that he searched the car before he arrested the defendant. The record further shows that the next day the defendant entered a plea of guilty in the city court on a charge of being intoxicated.

Several errors have been assigned by the defendant, and some are argued at length. The defendant insists that the officer searched his car without any authority before he placed the defendant under arrest, and for that reason the case should be reversed, citing a number of authorities in support of his contention. The defendant’s contention would be correct if the facts in the record sustained it, but they do not. It is clear from the record that the defendant admitted by the plea of guilty in the city court that he was on the public street of Woodward in an intoxicated condition, and the chief of police swears positively that he placed him under arrest before he searched the car. The defendant was accorded a fair and impartial trial. The evidence, though conflicting, is sufficient to sustain the judgment.

The case is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., absent, not participating.


text:
    NEELEY JACKSON et al. v. STATE.
    No. A-7448.
    Opinion Filed March 21, 1931.
    Rehearing Denied May 2, 1931.
    (298 Pac. 313.)
    TJ. G. Winn and Blanton, Osborn & Curtis, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter referred to as the defendants, were charged by information with the crime of libel, were convicted, and each sentenced to imprisonment in the county jail for a period of one year and to pay a fine of $1,000. From which judgment and sentence the defendants have each appealed to tbis court.

The proof, in substance, on behalf of the state, discloses the defendants Neeley Jackson and W. T. Corban, on or about the 23d day of September, 1928, went to Ringling, Okla., and secured an affidavit to be made by Mr. and Mrs. J. T. Cross, which affidavit the defendants brought back to Pontotoc county; at the time the affidavit was made and brought from Ringling, Okla., by the defendants, the defendant Neeley Jackson was a candidate for sheriff of Pontotoc county against Fred Bowles; Fred Bowles is referred to in the affidavit secured; after the affidavit was brought to Pontotoc county the defendant Corban had nothing further to- do with it. The defendant W. T. Corban lived at Stratford, in Garvin county, Okla.; the defendants secured the affidavit to be used against Fred Bowles, who was opposing the defendant Jackson in the race for sheriff.

The affidavit secured by the defendants from J. T. Cross and his wife contained statements charging Fred Bowles co-operated with Dr. Yates and Arthur Bowles in causing an abortion upon their daughter Katherine which caused her death. This affidavit was procured for the purpose of being used in the campaign against Fred Bowles, and was exhibited to Tom Anderson, and several other parties.

The testimony of the state further shows that J. T. Cross testified that at one time he lived in Seminole county, Okla.; that on or about the 17th day of September, 1928,—

“Me and my wife went with the defendants to Ringling, Okla., for the purpose of making an affidavit; we made the affidavit before Mr. J. P. Wade; the affidavit presented to me is the affidavit me and my wife made before Mr. Wade. The latter part of September I bad a letter from W. T. Corban. Tbe letter marked exhibit B, is the letter he wrote me; the envelope presented to me is the one the letter was in when I received it. Exhibit C, is another letter I received from Mr. Corban.”

The testimony further shows that the witness J. T. Cross was subpoenaed by the defendant.

“I stayed two nights at the Arthur Bowles home; he is one of the parties I made this affidavit against; I read and write; I delivered these letters to Fred Bowles; I don’t know just how soon after the affidavit was made that I delivered them, but it was just a few days before the election; Fred Bowles came to- my house; Arthur Bowles was down to my house twice in the fall before the election. I answered the Mullins letter, but I did not send him a copy of the affidavit.”

Several other witnesses were called who testified to the contents of the affidavit and the circumstances under which it was secured.

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

“I showed the original instrument to Tom Anderson; denies he ever showed the affidavit to any other person until after this prosecution had been started, and then the only instrument he ever showed anyone was a certified copy of the charge or information, which included a copy of the affidavit, which copy of the information and affidavit he secured from the court clerk. On a few occasions I exhibited this legal instrument to some of the electors of Pontotoc county; I did this to' explain why I had been incarcerated in the county jail for a few days on said charge; I thought I had a right to circulate said legal document if done in good faith to explain why I had been arrested, the circumstances, of my arrest and incarceration in jail; I believed the statements contained in the affidavit were true; I circulated a certified copy of the information and affidavit without any intent of injuring or harassing anyone.”

The defendant W. T. Corban, testifying in his own behalf, stated:

“I live at Stratford, Oída.; have been living there about 18 years; have known Neeley Jackson about six or seven years; I was present when the affidavit that has been introduced in evidence was secured; Mr. Jackson came to town and I was not doing anything, and went with him to the home of J. T. Cross; Mr. Wade prepared the affidavit; I did not have anything to do with it; I did not know Mr. and Mrs. Cross prior to- that time; I saw the two letters introduced in evidence yesterday; I can barely write my name; I did not write these letters, had nothing to do with them; they do not have my signature; I was surprised when they were read here yesterday; I do not have the slightest idea who wrote them.”

On cross-examination witness stated he got his mail at Stratford—

“My initials are W. T.; my boy usually does my writing for me.”

The record is full of other testimony concerning the affidavit which was introduced in evidence; the record shows the defendants went to Mr. and Mrs. J. T. Cross and secured the affidavit; W. T. Corban, one of the defendants, denies that the letters introduced in evidence purporting to have been written by him to Mr. Cross had been written by him. All the testimony we deem necessary for the purpose of arriving at an opinion in this case has in substance been set forth.

The defendants have assigned a number of errors, alleged to have been committed by the court in the trial of their case. The errors assigned by the defendants have been grouped together and will be discussed as follows:

First, the court erred in overruling and denying tbe motion tbe defendants interposed to tbe information.

It is urged by tbe defendants that tbe information is insufficient to state tbe crime of libel for tbe reason that it fails to state time of tbe alleged offense, tbe name of tbe party or parties to whom me publication of tbe alleged libelous statement was made; second, because it fails to allege or state that tbe alleged libelous instrument was published by tbe defendaat wi?h.iu three years prior to tbe filing of tbe information.

The information was filed on the 29th day of October, 1928, and charges that the offense was committed on October 24, 1928. Tbe defendants argue that tbe information is insufficient for tbe reason that it does not state to whom the libelous article was published. In C. J. vol. 87, p. 149, it is said:

“While it is held that an indictment for libel should aver tbe manner or method of publication, unless it is alleged that such facts are unknown to- tbe grand jury, it is generally held that an indictment or information for libel is not necessarily fatally defective in failing to state tbe mode of publication. * * * In some jurisdictions an indictment for slander must charge that tbe words were published in tbe presence of a certain person. * * * But in other jurisdictions an indictment for slander is sufficient, although it does not state to whom tbe words were spoken.”

Tbe defendants cite decisions from several states which they insist sustain their position that tbe information is defective for tbe reason that it does not state tbe name of tbe person to- whom tbe libel was published. Tbe better practice would be to state in tbe information tbe name of tbe party to whom tbe libel was published. From an examination of our decisions we find this question has never been decided by our courts. Tbe authorities on tbe question of giving tbe name of the party in the information to whom the libel was published are not in harmony. In some jurisdictions an indictment or information for slander must charge that the words were published in the presence of a certain person, but in other jurisdictions the indictment or information for slander is sufficient although it does not state to whom the words were spoken. In this case the information does not give the name of the party to whom the defendant published the libel. It sets forth in full the affidavit of J. T. Cross and wife, from whom it was alléged the defendant secured the affidavit containing the alleged libelous matter, and then states the defendants published it to various persons. Section 1804, C. O. S. 1921, reads as follows:

“In criminal prosecutions for libel, the indictment or information need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter upon which the indictment is founded, but it is sufficient to state generally that the same was published concerning the party named and the fact that it was published must be established on the trial.”

We hold that the information states facts sufficient to advise the defendants of the nature of the crime charged against them. The demurrer was properly overruled.

The second proposition discussed by the defendants is that the court erred in denying the application of the defendants, at the conclusion of the evidence, to require the state to elect upon what act or state of facts it was seeking the defendants’ conviction. The testimony shows that the affidavit was secured by the defendants, acting together, from J. T. Cross and his wife, and after it was signed by Cross and his wife it was brought to Pontotoc county and the defendant Jackson admitted he showed the affidavit to a man by the name of Tom Anderson; and other witnesses testify that it was shown to them. We do not think the court erred in refusing to require the state to elect on what act or state of facts it would seek the defendants’ conviction.

In the Case of Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 197, 37 A. L. R. 898, the Supreme Court of Alabama said:

“If the mailing of copies of libelous newspapers from the county of their primary publication into other counties amounts to a republication merely — and no- other theory seems available — then the law is well settled that the repetition or republication of the identical libel is not a new cause of action for which a separate suit may be maintained, but is merely an aggravation of the pre-existing cause, and in proper cases may tend to show actual malice.”

The admission of the defendant Jackson that he delivered the libelous affidavit to Tom Anderson constitutes its publication. Other exhibits or further circulation of this libelous affidavit only constitutes repetition or republication, and therefore there existed only one libel. The showing of the affidavit to one or one hundred people made no difference, it all constitutes one libel whether classed as repetition or republication; the offense is complete when showed or delivered to any person, and the court did not err in refusing to require the state to elect.

It is next urged by the defendant that the court erred in instructing the jury, and the failure to instruct the jury as requested by the defendants. It would serve no useful purpose to set out the instructions given and the instructions requested; suffice it to' say that we find, when taken in their entirety, the instructions given by the court stated the law applicable to the facts in the case, and the court did not err in the instructions given, nor did the court err in refusing the requested instructions of the defendants.

It is next contended by tbe defendants that tbe court erred in refusing to admit certain competent and relevant testimony and in admitting certain incompetent and irrelevant testimony offered by tbe state. Tbe defendants set out in tbeir brief tbe testimony which they claim the court erred in rejecting. After reading tbe same, we do not think tbe court erred in refusing to permit the defendants to introduce it; that tbe rights of tbe defendants were not prejudiced by reason of the court’s action in refusing tbe introduction of tbe testimony.

The last proposition argued by tbe defendants is that tbe judgment is contrary to law and not supported by sufficient evidence. With this contention we cannot agree. The testimony in this case clearly shows that tbe defendant Jackson was a candidate for sheriff of Pontotoc county and was opposed by the prosecuting witness Fred Bowles; that Jackson and bis codefendant left their home and went to Singling, Okla.; they took J. T. Cross and wife to Bingling and in tbe presence of a notary public secured tbe affidavit from J. T. Cross and bis wife, which is the basis of this prosecution; that while talking with them they told them they wanted it to use in the campaign; after the affidavit was secured the defendants returned, and the proof conclusively shows that Jackson published the affidavit; as shown by the record, Corban, after he was at the Cross home with the defendant Jackson, wrote Cross and his wife regarding the matter.

The evidence is sufficient to sustain the judgment. There are no errors in the record possessing sufficient merit to warrant a reversal.

The judgment is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    TONY AXTELL v. STATE.
    No. A-8001.
    Opinion Filed April 18, 1931.
    Rehearing Denied May 2, 1931.
    (298 Pac. 309.)
    See, also, 47 Okla. Cr. 80, 288 Pac. 350.
    Owen P. Renegar, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of assault with a dangerous weapon and was sentenced to imprisonment in the state penitentiary for one year.

The case was tried in May, 1930, and the appeal lodged in this court in October, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court, and no brief is filed in support of the petition in error, and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    LEWIS LUNDAY v. STATE.
    No. A-7645.
    Opinion Filed April 11, 1931.
    Rehearing Denied May 2, 1931.
    (298 Pac. 1054.)
    Tom Aggas, Bailey E. Bell, G. W. Goad, and E. B. Hunt, for plaintiff in error.
    J. Berry King, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of the crime of embezzlement, and his punishment fixed by the jury at a fine of $10,360 and imprisonment in the state penitentiary for a period of four years.

The evidence of the state was that the defendant had been court clerk of Delaware county; that the county commissioners had requested the state examiner and inspector to make an audit of the books of the defendant as such clerk, and that such audit revealed a net shortage of $4,994.42.

Under an information charging the embezzlement of a specified sum it is not necessary for the state to prove the exact amount recited in the information, but proof of the embezzlement of more than $20 at any one time within three years of the date of the filing of the information is sufficient to support a conviction. Defendant contends first that the court erred in not discharging the jury panel and continuing the case, when the jury on voir dire examination made statements which were prejudicial to the rights of the defendant.

Under this assignment defendant contends that because one juror on his voir dire examination said he had formed an opinion and believed the defendant' to be guilty, that it was not sufficient for the trial court to discharge that juror for cause, hut that the court should have discharged the entire panel because this opinion was expressed in the presence of the other jurors in the box.

In Remer v. State, 3 Okla. Cr. 706, 109 Pac. 247, this court, in discussing this question, said:

“The prejudice of individual jurors against the defendant is no ground for a challenge to the panel, but should be raised by challenging for cause the prejudiced jurors individually.”

Under section 2659, C. O. S. 1921, a challenge to the panel can be founded only on a material departure from-the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.

Under these authorities the trial court did not err in overruling the defendant’s challenge to the panel.

Defendant next contends that the court erred in not quashing the panel, for the reason that the same had not been drawn, chosen, and impaneled as required by law.

Under this assignment defendant contends that the names of the jurors were not taken from the tax rolls. A. A. Patterson testified that Mr. Huggins had a list of the names.

“Q. Where did he get this list he read from? A. I don’t know.
“Q. In drawing the jurors what proceeding did you go through? A. We had the tax books there.
“Q. What was this list used for that this gentleman had? A. Well, he would suggest the names.
“Q. From that list? A. Yes.
“Q. Were a lot of names incorporated in the list? A. I think not.
“Q. Were some of them incorporated in there? A. I think some probably were.
“Q. The jury list you made and returned into court, you selected the names that appear on that list from the tax rolls? A. Yes.”

It also appears that the jury commissioners were sworn and filed their oaths with the county clerk, but did not actually make up the list of names in the county clerk’s office. Defendant contends that this is such a material departure from the law providing for the impaneling of jurors that the cause must be reversed. To this contention we cannot agree.

Section 3526, C. O. >S 1921, provides:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling tlie grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause.” Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Herndon v. State, 16 Okla. Cr. 586, 185 Pac. 701; January v. State, 16 Okla. Cr. 166, 181 Pac. 514; Middleton v. State, 16 Okla. Cr. 320, 183 Pac. 626.

The record in the case at bar discloses some departures from the procedure prescribed by law, but they are not of such nature as to prejudice the defendant nor require a reversal of the case.

Defendant next contends that the court erred in refusing to declare a mistrial because of the indirect reference of the prosecuting attorney to the fact that the defendant had not taken the witness stand.

During the trial a dispute had arisen as to whether Delaware county had received any benefit from the audit. The examiner and inspector had testified that a fund of $1,900 in the Grove division of the county court was turned over to Delaware county as a result of the audit. Defendant was not charged with the embezzlement of this fund, and it was not included in the audit introduced by the state, but was in a separate audit. It was contended by the state that it was undenied that the county received this $1,900, but no mention was made of the defendant, nor any claim made that he was in any wise liable for the same. There is nothing in the record even remotely referring to the defendant as not having testified in the case.

Defendant next contends that the court erred in permitting the state to show items embezzled more than three years prior to the filing of the information.

At the time this evidence was admitted, the trial court, addressing the jury, said:

“Certain testimony has been submitted to you by the court, as competent for your consideration, tending to show embezzlement of sums of money, other than as charged in the information and at different times, was committed by the defendant.
“If you believe from the evidence, beyond a reasonable doubt, that the defendant did embezzle and fraudulently appropriate to his own use and benefit such sums of money as mentioned in the evidence then in such case said evidence is to be considered by you only as bearing upon the question of whether or not the defendant embezzled and fraudulently appropriated to his own use the amount alleged in the information at the times alleged therein, as tending to show the intent, if any, of the defendant in the commission of the charge against him, that is, a plan or scheme on his part to appropriate these sums of money, and you will not consider this evidence for any other purpose other than that, as the offense charged must have been committed within three years prior to- the 16th day of April, 1928. Anything that may have occurred prior to that time is admitted only for the purpose of showing intent, or scheme or plan on the part of the defendant, if any existed, and is not to be considered by you for any other purpose.”

This court has held that evidence of other similar transactions tending to show a plan or scheme is admissible. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696.

The evidence complained of was admissible for the purpose of showing a plan or scheme to embezzle the funds of tbe county. The instruction of the court directed the jury properly as to the purpose of this evidence, and the defendant was not prejudiced by the admission thereof.

Defendant next contends that the court erred in overruling his objections to .the introduction of certain parts of the audit prepared by the state examiner and inspector. Defendant interposed the following objection:

“By Mr. Bell: We would like to specifically object to pages 1 and 2, of the record, as incompetent, irrelevant and immaterial; not tending to prove any of the allegations of the information herein; further reason prejudicial to the defendant. In addition to the grounds stated and for further reason that no' proper foundation has been laid for the introduction of a compilation of figures, which purports to be based upon reports not in evidence. And for the further reason that it isn’t shown to be a true and correct copy of the original, if there was an original, and never having been filed in the county clerk’s office of Delaware county.
“By the Court: Part of that probably wouldn’t be competent. Part of it is. I don’t know how to separate it. Objection overruled.”

It was the duty of the defendant to set his objection out specifically so that the court could properly rule thereon, and having failed to do so, it is his own error and not that of the court.

Defendant next contends that the punishment is excessive.

As a public official, the defendant grossly betrayed the confidence placed in him by the citizens of Delaware county, and justly deserves the imprisonment fixed by the jury. The jury evidently erred in computing the amount of the fine. It is hard to tell from the conflicting evidence the amount of the embezzlement. Considering the whole record, we are of the opinion that the ends of justice will be served by reducing the fine to $500.

Defendant complains of other errors, but they are not considered of sufficient importance to require a separate discussion in this opinion.

The judgment of the district court is modified, and the punishment reduced from imprisonment of four years and a fine of $10,360, to imprisonment in the penitentiary for four years and a fine of $500, and, as modified, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


text:
    JIM JONES v. STATE.
    No. A-7920.
    Opinion Filed May 2, 1931.
    (298 Pac. 1053.)
    R. R. Rittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Att-y. Gen., for the State.
   DAVENPORT, P. J.

This is a purported appeal from the county court of Lincoln county from a judgment rendered on January 11, 1930, convicting the plaintiff in error of the offense of having possession of intoxicating liquor and sentencing him to pay a fine of $200, and to be imprisoned in the county jail for 60 days.

Tbe petition in error and case-made were not filed in this court until tbe 3d day of July, 1930, 173 days after tbe rendition of tbe judgment in tbe lower court. Tbis being a conviction for a misdemeanor, tbe longest period allowed by tbe statute for perfecting an appeal from tbe judgment is 120 days after tbe rendition thereof. Tbe Attorney General appeared specially and filed a motion to dismiss, for tbe reason that tbe appeal was not taken witbin the time provided by the statute. Section 2808, C. O. S. 1921, provides:

“In misdemeanor cases tbe appeal must be taken witbin 60 days after tbe judgment is rendered; Provided, however, that tbe trial court or judge may, for good cause shown, extend tbe time in which such appeal may be taken not exceeding 60 days. In felony cases tbe appeal must be taken witbin six months after tbe judgment is rendered, and a transcript of both felony and misdemeanor cases must be filed as hereinafter directed.”

In Webb v. State, 23 Okla. Cr. 249, 214 Pac. 744, 745, tbis court in part said:

“Tbe appeal was not lodged in tbis court until 149 days after rendition of tbe judgment. It is apparent, therefore, that tbis court has never acquired jurisdiction of tbe appeal, and that the motion of the Attorney General to dismiss the appeal is well taken and must be sustained.”

In tbis case it is apparent that tbe petition in error with case-made attached was not lodged in tbis court until 173 days after tbe rendition of tbe judgment.

Tbe motion to dismiss is sustained.

CHAPPELL and EDWARDS, JJ., concur.


text:
    C. A. BRANT v. STATE.
    No. A-7896.
    Opinion Filed May 2, 1931.
    (298 Pac. 1054.)
    Jno. Y. Eoberts, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Judgment was rendered against tbe plaintiff in error in said cause on tbe 15tb day of February, 1930. Tbe petition in error was filed in this court on tbe 13tb day of June, 1930. No order was made by tbe trial judge fixing the time to make and serve case-made, nor was any extension of time granted.

Tbe appeal having been filed in this court 119 days after judgment was rendered, this court is without jurisdiction. Tbe appeal is therefore dismissed.

DAVENPOET, P. J., and EDWAEDS, J., concur.


text:
    FRANK MILAM v. STATE.
    No. A-8006.
    Opinion Filed May 2, 1931.
    (298 Pac. 898.)

      C. A. Summers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of forgery in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for four years.

Defendant makes no contention that the evidence of the state is insufficient to support the verdict of the jury, but contends that the case must be reversed because of an improper statement made by the trial court to another jury in the presence of the jury trying the case at bar.

It appears from the record that during the progress of the trial of the case at bar the jury came in in the case of State of Oklahoma v. Alfonso Harris and returned a verdict finding the defendant Harris not guilty, and thereupon the trial court made the following statement:

“After he was sent to the state reformatory on that plea of guilty (talking about the defendant Alfonso Harris) his father came to me, and some of the railroad officials, and brought a little pressure to bear, you might say, upon Mr. Oldham and myself, and we recommended his parole and he got out, but I will say now that if the jurors don’t use common sense in weighing the evidence, and weigh it in the light of common sense and reason, we had just as well adjourn this court and go home. As I said before, every man is the keeper of his own conscience and I am not criticizing you, but we had just as well do that if you are not going to use common sense and reason in arriving at your verdicts. You may go now.”

Thereupon counsel for the defendant objected to these remarks of the trial court upon the ground that they would prejudice the jury against him, and demanded that the court declare a mistrial and discharge the jury.

Defendant contends that this case should be reversed because of these remarks.

There is nothing in this statement which could have in any way injured the defendant. All the court said, to the jury was that they should exercise common sense and reason in their deliberation in arriving at their verdict. The supposition is that jurors use both common sense and reason in considering the evidence and instructions of the court and arriving at their verdict.

In the case of Jones v. State, 48 Okla. Cr. 415, 292 Pac. 570, this court took occasion to caution trial judges to be careful about what they said in receiving verdicts or sentencing prisoners in the presence of trial juries considering cases. In the body of the opinion in that case, this court said: “The defendant argues that the prejudicial remarks and conduct of the court in sentencing the other prisoner influenced the jury in returning a verdict of guilty against him, and that, except for such prejudicial remarks, the jury probably would not have found him guilty. This contention cannot be true, for the reason that there is sufficient competent evidence in the record to require an honest jury to return a verdict of guilty. The better practice would be to exclude the jury from the courtroom while sentencing other prisoners and to refrain from any discussion of crime in the presence of the jury which might have a tendency to prejudice defendants who might then be on trial for similar offenses.”

There is nothing in the record in the case at bar to indicate that the crime of which Harris was acquitted was similar to the one in the case at bar, nor is there anything in the record to indicate that the defendant was biased or prejudiced by the remarks of the trial judge.

The evidence of the state established the guilt of the defendant beyond a reasonable doubt. It was not error, therefore, for the trial court to refuse to grant a mistrial on account of those remarks.

The other errors complained of being without substantial merit, the cause is affirmed.

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


text:
    HOWARD SEARCY v. STATE.
    No. A-7897.
    Opinion Filed May 2, 1931.
    (298 Pac. 897.)
    P. M. Cooper, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and serve a term of 90 days in the county jail.

The case was tried in February, 1930, and the appeal was lodged in this court in June, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted. We have carefully examined the record, and the evidence is amply sufficient to sustain the judgment and sentence. Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no fundamental error is apparent and the evidence is sufficient the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    R. H. LAWSON v. STATE.
    No. A-7988.
    Opinion Filed May 2, 1931.
    Rehearing Denied May 16, 1931.
    (298 Pac. 896.)
    Lon Morris and Toby Morris, for plaintiff in error.
    J. Berry King, Atty. Gen., and C. S. McCuistion, Co. A tty., for the State.
   CHAPPELL, J.

Plantiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of the crime of driving an automobile while intoxicated, and Ms punishment fixed by the jury at imprisonment in the state penitentiary for six months.

The evidence of the state was that on the 7th day of October, 1929, there was a large crowd of people on the streets of Walters; that defendant was driving- a car down the streets of the city, honking the horn, halloaing and saying, “Get out of the way’7; that it looked like defendant’s car was going to hit every car he met; that the car was just going wigwag, wigwagging and passing first on one side and then on the other; that defendant was pretty drunk and staggered quite a bit as he walked after he was arrested; that his tongue was thick, and that he was boisterous at times; that defendant said he had drunk three or four drinks, but he was not drunk; that defendant said he did not know who the car belonged to; that defendant was driving the car in Cotton county, while in an intoxicated condition.

Defendant, testifying for himself, denied that he was driving the car, but that John Scott was doing the driving, and that John was pretty drunk; that he (the defendant) was not drunk.

This conflicting evidence was for the jury. They saw the witnesses and heard them testify and were charged with the duty of passing upon the credibility of the witnesses and weighing their testimony. The evidence of the state was sufficient to support the verdict of the jury.

Defendant next contends that the county attorney was guilty of misconduct in his remarks to the jury.

The county attorney prosecuting was not the officer who filed the complaint and began the prosecution. In his remarks to the jury he said that, if the county attorney bad not believed tbe defendant guilty, be would not bave filed tbe case, and immediately thereafter stated to tbe court that it was improper for bim to make sucb a remark, and asked tbe court to instruct tbe jury not to consider it, wbicb tbe court did.

Tbe remarks made were improper, but, in tbe light of tbe convincing evidence of tbe guilt of defendant offered by tbe state, bis rights were not prejudiced by such remarks.

Defendant next contends that tbe court erred in refusing to permit bim to impeach tbe verdict of tbe jury by calling three of tbe jurors to testify as to what occurred in tbe jury room.

Unless required by statute, a verdict cannot be impeached by tbe affidavit or testimony of jurors showing misconduct upon their part in arriving at tbe verdict. Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Wilson v. State, 36 Okla. Cr. 148, 252 Pac. 1106; Revis v. State, 42 Okla. Cr. 198, 275 Pac. 351.

Tbe record in this case discloses that tbe defendant bad a fair trial. Tbe evidence supports tbe verdict of tbe jury, and tbe errors of law complained of are not sufficient to require a reversal of tbe case.

For the reasons stated, tbe cause is affirmed.

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


text:
    RAY SHAILER v. STATE.
    No. A-7865.
    Opinion Filed May 9, 1931.
    (299 Pac. 1085.)

      C. F. Gowdy, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error was convicted of the crime of robbery in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for 15 years.

The appeal is by transcript, which sets forth the information, the demurrer, the instructions of the court, the verdict of the jury, the judgment of the court, and the motion for a new trial.

There is nothing in the record to show that any exceptions were taken to the instructions of the court, nor to the overruling of the motion for a new trial, nor is the transcript certified by the clerk as required by law.

The plaintiff in error in his brief contends that the information is duplicitous, that the verdict is contrary to law, and that the court had no jurisdiction to pass sentence and judgment.

An examination of the record discloses that the information contains some redundant matter, but is sufficient to charge the crime of robbery in the first degree.

The instructions of the court fairly state the law as applicable to the facts in the case; the verdict of the jury and the judgment are legal and sufficient.

The errors complained of by the plaintiff in error being without substantial merit, the cause is affirmed.

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


text:
    OLLIE BROOKINS v. STATE.
    No. A-7826.
    Opinion Filed May 9, 1931.
    (299 Pac. 1083.)
    Brown Moore and G-uy L. Horton, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and tO' serve 30 days in the county jail.

The evidence is brief, and is that the defendant is a negro washwoman living in the town of Cushing. A constable and two deputies with a search warrant went to her place in the nighttime and found about a half pint of whisky in the house, and testified that with the aid of a flash-light they found a pint of whisky under a shovel in the yard. Defendant in her own behalf testified that just before the officers came a man came to the house in reference to his laundry, and about the time the officers entered he took a small bottle out of his pocket and set it down by the stove, which was the bottle found by the officers and concerning which she had no knowledge. She denied knowing anything about the bottle found in the yard. The amount of whisky found is so insignificant and the evidence so weak that the conviction should not be permitted to stand.

The case is reversed and remanded.


text:
    F. M. MARSH v. STATE.
    No. A-7914.
    Opinion Filed May 9, 1931.
    (299 Pac. 1084.)
    Kenneth B. Kienzle, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for one month.

The evidence of the state was that the officers had a search warrant to search the Anadarko Rooming House, located at 119% South Broadway, in the city of Shawnee; that, as the officers entered the rooming house, the defendant fled into another room with a one-half gallon pitcher in his hand and started to empty the contents into a pail or slop jar; that the officers caught him and prevented him pouring out the entire contents, which was whisky; that on further search they found a sack of empty half-pint whisky bottles and a half dozen empty half-pint whisky bottles, with the smell of whisky in them.

The defendant did not take the witness stand.

Defendant moved to suppress the evidence on the ground that the affidavit for the search warrant was insufficient to authorize the issuance of the warrant, but made no effort to produce the affidavit to support his motion, and has incorporated no copy of same in the case-made.

In the case of Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370, this court laid down the method of making a record to raise the question of the sufficiency of the affidavit and warrant. In the case at bar the court is unable to determine whether the affidavit is sufficient or not, since no copy of it is contained in the record.

The other errors complained of by the defendant are not sufficient to require a separate discussion in this opinion.

For the reasons stated, the cause is affirmed.

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


text:
    J. A. CALDWELL v. STATE.
    No. A-7853.
    Opinion Filed May 9, 1931.
    (299 Pac. 1083.)
    Percy Powers, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

An examination of the record discloses that the state offered no witness who claimed to have seen defendant with the whisky, or to having seen him transport it, nor does the evidence of the state show any definite evidence of the whisky being transported from one place to another.

Under the rule announced in Smith v. State, 34 Okla. Cr. 293, 246 Pac. 261; Brown v. State, 18 Okla. Cr. 509, 196 Pac. 967; Aycock v. State, 32 Okla. Cr. 302, 240 Pac. 1081; Jones v. State, 39 Okla. Cr. 195, 264 Pac. 638; and Slayton v. State, 45 Okla. Cr. 283, 283 Pac. 258 — the evidence of the state was wholly insufficient to support the verdict of the jury.

For the reasons stated, the cause is reversed.


text:
    CLAUDE ALEXANDER et al. v. STATE.
    No. A-7849.
    Opinion Filed May 9, 1931.
    (299 Pac. 237.)

      Floyd Wheeler, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Okmulgee county of grand larceny, and were sentenced to terms in the state penitentiary as follows: Defendant Willis Alexander, a term of three years; defendant Cecil Alexander, a term of one year, and was paroled by the court; defendant Claude Alexander a term 18 months; defendant Frank Alexander was acquitted.

The first contention argued is that there is no proof of venue; that, if there is any sufficient proof of crime, it is that of a burglary committed in Wagoner county and not a larceny in Okmulgee county. This contention is not tenable. The evidence is that the property in question was stolen on the occasion of a burglary in Wagoner county, but there is proof of an asportation of the property thus stolen into' Okmulgee county. This is a continuation of the offense in the latter county. Section 2433, Comp. St. 1921; Hensley v. State, 34 Okla. Cr. 345, 246 Pac. 886.

Complaint is next made that there was prejudicial error in admitting incompetent evidence. At the preliminary trial before a justice of the peace, sitting as a committing magistrate, one Maxwell, a witness for the state, gave damaging testimony against defendants. None of this testimony in the preliminary trial was reduced to writing nor taken in shorthand. Prior to the trial, a subpoena. was issued for Maxwell to Wagoner county which was returned not served. The witness was shown to be at some place in Woodward county. The state then called the justice of the peace who held the preliminary examination, and permitted him to testify, over the objection of defendants, the substance of the testimony of Maxwell. It is argued the admission of this testimony violates the constitutional right of confrontation as well as the general rule against hearsay testimony. Section 20, art. 2, of the state Constitution, is identical with Amendment 6 of the federal Constitution, and provides:

“In all criminal prosecutions the accused * * '"shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him. * * *”

The substance of this guaranty is also in section 2349, . Comp. St. 1921.

Section 1, c. 68, Session Laws 1913, being section 2491, Comp. St. 1921, referring to preliminary trials, in part, is as follows:

“First: The witnesses must be examined in the presence of the defendant, and may be cross-examined by him. On the request of the county attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed with-' out signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in section 6676 (2536) of this compilation. In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the county attorney.”

Section 2536, Comp. St. 1921, therein referred to, is:

“In the investigation of a charge for the purpose of presenting an indictment or accusation, the grand jury may receive the written testimony of the witnesses taken in a preliminary examination of the same charge, and also the sworn testimony prepared by the county attorney, without bringing those witnesses before them, and may hear evidence given by witnesses produced and sworn before them, and may also receive legal documentary evidence.”

It has often been held by this court that, if an accused has once had his right to confront the witnesses against him and an opportunity to cross-examine, his constitutional right of confrontation is not violated by the admission of the written testimony of such witnesses at a subsequent trial. Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Stealer v. State, 10 Okla. Cr. 460, 138 Pac. 395; Pierce et al. v. State, 35 Okla. Cr. 67, 248 Pac. 654; Williams v. State, 42 Okla. Cr. 399, 276 Pac. 515; 2 Wig. on Ev. § 1364, notes; 16 C. J. 839.

In no case has this court held that the testimony of a witness given at a preliminary or a former trial, and not reduced to' writing at the time nor taken in shorthand and transcribed, may be proven by witnesses whoi were present and heard such testimony. It was suggested by way of dictum in the case of Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808, that such testimony might be admissible. There is a division in the authorities in cases from other jurisdictions; but, where such evidence is held admissible, the cases are in such conflict as to the circumstances, limitations, and conditions under which the testimony will be admitted that no general rule can be stated. The trial judge is not to be criticized for admitting the testimony, for the question is extremely close. The testimony is hearsay, and has been generally regarded as such by those courts which have held it admissible. It has been admitted, not in conformity with any general rule, but as an exception to the rule, and as a necessity to prevent a manifest failure of justice and as a matter of public safety, somewhat in the class of a dying declaration. Where the proper predicate is laid, such oral testimony is admissible. Mattox v. U. S., 156 U. S. 237, 15 S. Ct. 337, 39 L. Ed. 409; 22 C. J. p. 427, § 510f, notes. The rule of necessity, however, has less application in the instant case than in the case of a dying declaration or in the case where the witness since giving the former testimony has died, become insane, or has left the state, or is sick and unable to testify. Under our law governing criminal procedure, the state may preserve the testimony of a witness given at a preliminary trial or may require a bond for the appearance of the witness at the subsequent trial. Ordinary caution would suggest that, in the case of important witnesses, the state should preserve such evidence by having it reduced to writing or require a recognizance for the appearance of the witness. Before oral proof of the testimony of the witness given at a preliminary or former trial is admissible, there must be proof of the death, insanity, illness, or absence of the witness from the state, or that with due diligence the witness cannot be found. It is not a sufficient predicate to show the witness is in another county, where there was no diligence to procure his attendance by issuing a subpoena to that county. Such testimony is not to be admitted on a slight showing such as appears in the record before us. Such testimony is admissible only after a substantial predicate is proven and as a matter of necessity to prevent a miscarriage of justice.

Under the showing made in the instant case, the admission of the evidence was prejudicial error, requiring a reversal.

The case is reversed.

DAVENPOBT, P. J., and CHAPPELL, J., concur.


text:
    TOM MANN v. STATE.
    No. A-7729.
    Opinion Filed May 9, 1931.
    (299 Pac. 237.)
    Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of having the unlawful possession of intoxicating liquor, and he was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment in this case was entered on November 4, 1929, and the appeal lodged in this court February 1, 1930. An extension of time in which to make and serve case-made was entered by the trial court, but no extension of time in which to file the appeal in this court was ever made. By section 2808, Comp. St. 1921, it is provided that appeals in misdemeanor cases must be taken within 60 days after the judgment is rendered, unless the court or judge, for good cause shown, extend the time not exceeding 60 days additional. Extending time to make and serve case-made does not extend the time to file the appeal. Buxton v. State, 41 Okla. Cr. 376, 273 Pac. 372; Miller v. State, 41 Okla. Cr. 367, 273 Pac. 374.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    C. O. FIELDS v. STATE.
    No. A-7801.
    Opinion Filed May 9, 1931.
    (299 Pac. 233.)
    George L. Zink, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The case was tried in December, 1929, and the appeal was lodged in this court in April, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, the evidence is circumstantial, and there are sufficient circumstances proven from which the jury might reasonably and logically find the defendant guilty. The facts proven are consistent with the guilt of the accused and inconsistent with any other reasonable hypothesis than that of his guilt. No material error is apparent.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.