text:
    ALBERT LARY v. STATE.
    No. A-7152.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 512.)

      George Sneed, J. B. O’Bryan, and W. E. Utterbaek, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Marshall county of manslaughter in the first degree and was sentenced to serve a term of 25 years in the state penitentiary.

The record discloses that at the time charged defendant shot and killed one Frank Miller. Defendant was a police officer of several years’ experience. Miller was a young man 20' years of age, who worked, at a filling station at Midway near Red River and had paid some attention to a daughter of defendant, aged about 16 years. Defendant had informed Miller he did not allow his daughter to have company on schoojl nights. On the night of the homicide Miller was at a church and took the daughter and a Miss Murr riding, but the daughter had left the car near her home and Mijller had taken Miss Murr to her home. The daughter was not at home when defendant returned. He immediately got in his car and went in search of her. He went to the filling station where Miller stayed and fired a single shot from a pistol which killed Miller. No one was present at the time except defendant and Miller. Defendant then sought medical attention and did what he could to aid Miller, who died in a short time. Defendant admitted firing the shot that caused the death, but testified he went to the filling station to inquire for his daughter; that when he did so Miller threw a rock at him and was attempting to throw another and he fired in his necessary self-defense.

The first contention is that at the time the information was filed the district court had no jurisdiction because the transcript of the committing magistrate holding defendant for trial had not been filed in the district court, and that the filing of such transcript is necessary to1 give jurisdiction. Section 17, art. 2 of the Constitution is:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Section 2509, Comp. Stat. 1921, is as follows:

“When a magistrate has discharged a defendant, or has held him to answer, he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before him, the statement of the defendant, if he have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of the proceedings as they appear on his docket.”

It has several times been held by this court that the fact that a preliminary examination has been had or waived constitutes a jurisdictional basis for prosecution of a felony 'by information. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332. In some of the cases it is indicated that it is necessary that a transcript of the magistrate finding probable cause be filed with the court clerk to give the court jurisdiction to try an accused on an information for the crime for which he was held by the magistrate. Lowrance v. State, 33 Okla. Cr. 71, 242 Pac. 862. See, also, Little v. State, 21 Okla. Cr. 1, 204 Pac. 305. Where an examining trial is hejld before a magistrate and the accused is held for the action of the district court, if he make objection by motion to quash in apt time, the district court is without jurisdiction to' try him until a transcript from the magistrate is filed. Section 2509, Comp. Stat. 1921, supra. The mere fact that the information is filed before the transcript is received will not deprive the court of jurisdiction if the order of commitment has been in fact made and entered by the magistrate and the transcript then is filed, for certainly, jurisdiction would attach and authorize a continuation of the prosecution upon the information from the time the transcript required by section 2509, Comp. Stat. 1921, supra, is filed. This precise question does not appear to have been presented to this court, but under a similar constitutional and statutory provision it has been held not fatal. In People v. Tarbox, 115 Cal. 57, 46 Pac. 896, it was said:

“The information upon which he was tried was filed in the superior court on March 9, 1896, and the depositions, transcript, and order of commitment were not returned to the superior court by the examining magistrate until March 10, 1896. Upon his arraignment the defendant moved to set aside the information, upon the ground that it was filed before any commitment, deposition, or other record showing that he had had a preliminary examination, had been returned or filed in said court, and upon the further ground that no order of commitment was indorsed upon the depositions afterwards returned. Said motion was denied, and the defendant excepted. Good practice requires that the return of the examining magistrate should be made and filed before the information is filed, but we are not prepared to say that the filing of the information after the examination was had, and the order holding the defendant to answer was in fact made, was more than an irregularity, which would not justify a reversal of the judgment where it does not appear that it affected any substantial right of the defendant. Section 1258 of the Penal Code provides:
“ ‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.’ ”

It is next argued that the court erred in refusing defendant’s requested instructions 3 and 4. Number 3 in substance refers to evidence introduced by defendant of notice given to deceased that the school board objected to girls riding during school hours and limits such evidence to the purpose of aiding the jury in determining who was probably the aggressor. The failure of the court to give this instruction was beneficial to defendant, for instead of limiting the evidence to a particular purpose, it permitted it to go to' the jury for all purposes. Number 4 states in part the law of self-defense; it is covered by the general charge.

Complaint is made that the court erred in his instructions; this assignment is directed particularly to Nos. 8, 11, 13, and 16. No' exception was reserved to> No. 8, which in a general way states the substance of section 2719, Comp. Stat. 1921. There is no material error, certainly no fundamental error in this instruction.

Instruction 13 reads:

“In this connection you are further instructed, however, that the test as to' whether one acted in his self-defense, that is, had the right to kiljl another in his self-defense, is not the honesty and good faith of the defendant’s belief in the necessity for the killing, that is, that he honestly and in good faith believed that he was in imminent danger of losing his life or of receiving great personal injury at the hands of his assailant, but the question is, was his belief that it was necessary to kill his assailant, reasonable, that is, would a reasonable man under the same circumstances have believed it necessary to take his assailant’s life in order to' protect himself from the assaults of his assailant, and it is this rule of self-defense which you must apply to the evidence in this case.”

The objection urged to this instruction is that it places on defendant the burden of showing that he acted as a reasonable man, that it does not direct the jury that the circumstances must be considered from the defendant’s standpoint as they reasonably appeared to him, citing Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; Colbert v. State, 7 Okla. Cr. 401, 124 Pac. 78; 13 R. C. L. § 122, p. 818; and authorities from other states. If instruction 13 were considered apart from the other instructions of the court, there would be force to the argument. It is well settled, however, that instructions are to be considered and construed as a whole. The law of self-defense is fully covered, and running through the instructions on self-defense is the requirement that the act of defendant in slaying deceased is to be viewed from his standpoint; that is, as the circumstances at the time reasonably appeared to him. In No. 12 the jury are told that defendant had the right to use such force “* * * as reasonably appears to him, as a reasonable man to be necessary under the circumstances for his protection. * * * He is not required to retreat but has the right to stand his ground and use whatever force reasonably appears to him as a reasonable man, * * even to the extent of taking human life. * *” In No. 14 it is said that if defendant “at the time he fired the shot believed, or if they have a reasonable doubt thereof, that deceased had made an overt act, * * * which led the defendant, Albert Lary, situated as he then was and as a reasonable man, viewed from his standpoint * * * that he was in immediate danger of losing his life or of receiving some great personal injury, * '“'then the defendant would have been justified. * * *” In No. 14A appears this: “* * * And it is for the jury to determine, viewing the facts and circumstances in the case from the standpoint of defendant. * * *” In No. 15 the words “reasonably appeared to him * * * or that at the said time it appeared to the said Albert Lary. * * *” It is clear that when considered together as a single charge the jury are plainly told that the facts and circumstances surrounding the killing must be viewed from the standpoint of defendant as a reasonable man. This is all the law requires. Jamison v. State, 35 Okla. Cr. 302, 250 Pac. 548. In Edwards v. State, 24 Okla. Cr. 169, 216 Pac. 947, 948, this court held in substance that it was not necessary to repeat over and over the words “beyond a reasonable doubt,” when a reasonable interpretation of the instruction made it apparent that the material issues must be proven beyond a reasonable doubt. By the same rujie it is not necessary to reiterate the words “as it reasonably appeared to defendant, viewed from his standpoint/’ or words of similar import, when from the instructions as a whole it is apparent the jury must have so understood the charge.

As to instruction 11, it is argued, the jury are told that in order to justify a homicide on the ground of self-defense, there must appear reasonable ground to apprehend a design by the person slain to do great personal injury and imminent danger of such design being accomplished. That is, defendant contends that under this instruction the jury must find the danger to be actual and real, citing Humphrey v. State, 8 Okla. Cr. 449, 128 Pac. 742, where it is held in substance such an instruction is erroneous. This instruction is not materially erroneous; it is predicated on an apprehension of defendant based on reasonable ground of a design to do him some great personal injury and the apprehension that there was an immediate danger of such design being accomplished. While not very aptly worded, the principle enunciated is correct. Self-defense exists because of an apprehension of danger of great personal harm and an apprehension that the danger is imminent. Certainly, one would not be entitled to slay another for fear that at some future time the other might do him some great personal injury. This, in substance, has been frequently held by this court. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Jamison v. State, supra; Lee v. State, 33 Okla. Cr. 370, 244 Pac. 455; Hunt v. State, 29 Okla. Cr. 255, 233 Pac. 506.

Instruction 16 in substance tells the jury that the purpose for which evidence of threats is offered is to show who is probably the aggressor, and further if the jury find that the killing was because of such threats or by reason of the fact that deceased had been riding in a car with a daughter of defendant, he would be guilty of murder or manslaughter. The first part of this instruction was a request of defendant; the latter part, in reference to the tilling by reason of riding with the daughter of the defendant, was added by the court. It is insisted there is no evidence to sustain this latter part. As there were no eyewitnesses to the actual homicide except the participants, there is no direct evidence that the killing was for the reason mentioned in the latter part of the instruction, but this is the theory of the state and the circumstantial evidence tends to prove it. It could not be prejudicial.

No other assignment requires special discussion. On the whole record, we are satisfied defendant had a fair trial.

The case is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    BILL HOGSHOOTER v. STATE.
    No. A-7422.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 531.)
    C. ,S. Fenwick, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of manslaughter in the first degree, and his punishment fixed at 20 years in the penitentiary.

The record discloses that defendant was a son-in-law of Dan Thurman, a resident of the village of Oakes. On the day before the homicide, defendant’s wife, because of some trouble between her and defendant, had left her home and gone to her father’s. Late in the afternoon, defendant came to Thurman’s house with a rifle and found his wife and the family at supper, except Thurman, who had gone to a store nearby. Defendant ordered his wife to go home, and punched her with the gun, and they had a scuffle over it. Nellie Thurman, a girl of 17, ran to where the father was and told him, in substance, that defendant was at the house and was going to kill Mabel. Thurman went to the house, looked in, and at once ran back to the store and asked for his pistol, which he had left there some time before, and said he was going “to kill the son-of-a-bitch.” Defendant, hearing that Thurman had gone for his gun, went to the front door with his rifle in his hand, and, as Thurman was returning pistol in hand, defendant fired one shot, from the effect of which Thurman died almost immediately. There is a sharp conflict in the testimony as to the position of the parties when the shot was fired. Defendant testified that at the time he fired Thurman was pointing the pistol at him and he thought he was going to kill him. The two younger daughters of deceased testified, in substance, that, at the time defendant shot their father, the father had a pistol in his hand and was moving sidewise with his arm up. Some of this evidence is by demonstration before the jury, and we are not able to know just what the demonstration was. Dr. Prowell, a physician called immediately after the homicide, is not much more definite. He testified in part:

“Q. Did yon make an examination of the body of Dan Thurman? A. Yes.
“Q. Tell the jury what you found? A. It was a very peculiar wound. It was a small gunshot wound in the right arm about five inches below the point of the right shoulder on the back o,f the arm.
“Q. Step down here, Doctor, and show on my body whereabouts in that arm. A. Eight arm, about there was the bullet wound.
“Q. What course did it take? A. Followed up the arm and into- the lung. * * *
“Q. I believe you said the point of entrance was on l the outside of the right arm? A. Yes.
“Q. How far from the point of the shoulder? A. About five inches.
“Q. That bullet ranged down the arm? A. Ranged “ up the arm.
“Q. And into- the lung? A. Yes.
- “Q. Into the right lung? A. Yes. * * *
“Q. If that bullet entered the outside of his arm I about five inches from this point, passed up the arm and went into- the top of the ¡lung, what would that indicate as to- the position of the arm at the time o-f entering? A. It was raised on a level of the shoulder.
“Q. About like this (indicating). A. Yes.”

Redirect examination:

“By Mr. Hampton: Q. You say the elbow' was' raised when the entrance was made by the bullet. You couldn’t tell which way the forearm was raised? A. No, sir; don’t know anything about the forearm. The elbow was raised to- the level of the shoulder. * * *”

Upon an examination of the entire record, there appears sufficient evidence to sustain the judgment, but from the entire case we are of the opinion that justice requires the judgment be modified by reducing the punishment to a term of 10 years in the penitentiary, and, as modified, the case is affirmed.

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


author: DAVENPORT, P. J.

text:
    JOHN WHITE v. STATE.
    No. A-7679.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 530.)
    W. P. Hickok and J. H. Antrobus, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of transporting, and was sentenced to pay a fine of |300 and costs, and be confined in the county jail for 60 days. From which judgment and sentence the defendant has appealed.

The testimony on behalf of the state shows that Ezra Burnett was city marshal of Soiling; he testified, in substance, that he saw the defendant, John White, and a Mr. Carter in the town of Seiling on the 25th day of August, 1929; they were walking down the street; they stopped a minute and had some conversation and then Mr. Carter went on to town; the defendant went down the alley to his father’s barn; “I next saw him back by the side of his father’s barn; I saw him put something, in his pocket, it looked like a bottle; at the time I arrested him I could see what looked like a bottle; after I arrested him I took the bottle out of his pocket and examined it, and it was whis-ky.”

On cross-examination witness stated it was dark:

“I could not remember whether it was moonlight or not; I saw the defendant go to his father’s barn about thirty yards or a little farther from where I was standing ; it was in the same block; I saw the defendant come from the north side of the barn with something that looked like a bottle in his hand, couldn’t swear positively what it was at that time; he came from the west, came south and. east; I was facing in a westerly direction; the bottle I took off of him was in his right hip pocket; I said I saw the bottle in his pocket before I arrested him; the light showed out of the building on the defendant; I did not see the whole bottle, saw the top of it, I did not know for sure what it was; it looked like whisky to me; so far as my knowledge was concerned I only had a suspicion he was carrying whisky; did not have a warrant for his arrest; did not have a warrant to search him or any place else. When I arrested him I searched his person and took the bottle out of his right hip pocket; I was not sure what it was I saw him put in his pocket was a bottle, I did not know what was in it; did not know anything about it.”

The defendant moved the court to strike the testimony from the record and instruct the jury not to consider the examination of the witness Ezra Burnett, for' the reason that tbe officer did not have a search warrant or a warrant for Ms arrest, and that the facts were procured and made illegally, and in violation of the law, and of the defendant’s statutory and consitutional rights, and in violation of section 30, art. 2, of the Constitution of Oklahoma. This motion was overruled, and the defendant duly excepted.

The testimony in this case clearly shows that the defendant was stopped on the street and searched by an officer on mere suspicion that he had whisky on his person, as the officer admits he did not know what the defendant had on his person. The right of an individual to be exempt from unlawful search and seizure is guaranteed by sections 21 and 30 of the Bill of Rights.

In Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631, this court said:

“In a prosecution for unlawfully transporting intoxicating liquor, defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, nor the evidence of the possession thereof so acquired, is admissible against him.” Bassett v. State, 34 Okla. Cr. 370, 246 Pac. 654.

Upon the authority of the cases cited, we hold that the evidence challenged in this case was taken by the officer by an unjlawful search and seizure, and contrary to section 30 of the Bill of Rights, and was improperly received in evidence against the defendant. The motion of the defendant was well taken and should have been sustained.

The judgment of the lower court is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    Ex parte MARION PIKE.
    No. A-7967.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 529.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the warden of the penitentiary at McAlester; that, with others, in the district court of Craig county, he was charged with conjoint robbery alleged to have been committed July 19, 1923; that he was convicted, and in November, 1923, he was sentenced to serve a term of 15 years; that at the date of the crime a|lleged, the punishment fixed by law (chapter 85, Sess. Laws 1923) was a minimum of 25 years; that, a sentence of 15 years being contrary to law, the restraint of petitioner is illegal.

It is well settled that the writ of habeas corpus cannot be used to- perform the office of an appeal. It is limited to cases in which the judgment and sentence attacked is clearly void. Ex parte Dunn, 33 Okla. Cr. 190, 242 Pac. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte King, 41 Okla. Cr. 241, 272 Pac. 389. Where petitioner is imprisoned on a judgment of conviction for crime upon a final judgment of a court of competent jurisdiction, this court in habeas corpus wiljl not look to the record further than to ascertain if the court had jurisdiction, and, if so, if in the course of the proceedings it lost jurisdiction. Mere errors or irregularities, however numerous and gross, committed during the trial, which render a judgment voidable merely, cannot be corrected by habeas corpus. Ex parte Lyde, 17 Okla. Cr. 618, 191 Pac. 606; Ex parte Barnette, 29 Okla. Cr. 80, 232 Pac. 456.

Chapter 85, Sess. Laws 1923, fixed the punishment for robbery at a minimum of 25 years. It was error for the trial court to instruct the jury that they might assess a less punishment. This error, however, did not divest the court of jurisdiction. Cornett v. State, 40 Okla. Cr. 172, 267 Pac. 869; Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862.

The writ is denied.

CHAPPELL, J., concurs. DAVENPORT, P. J., not participating.


author: CHAPPELL, J.

text:
    C. B. FOWLER v. STATE.
    No. A-7677.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 528.)

      Herman S. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called ' defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the court ah imprisonment in ^ the state penitentiary for a period of 20 years.

The evidence of the state was that the deceased, Lov-ard Godfrey, who was a son-in-law of the defendant, had Ibeen separated from his wife; that on the evening of the homicide the defendant, with his daughter and others, had gone to the town of Roosevelt, in Kiowa county, and parked his car in the center of the street; that later the deceased parked his car near that of the defendant and a short time later approached defendant’s car and entered into a conversation with his wife; that a controversy arose between them, and deceased reached through an open window in the car and seized his little daughter and took her over to his own car; that defendant followed deceased to deceased’s ear and fired one shot into his body; that after deceased had slumped to the ground or to the running board, defendant shot him the second time, at which time he fell to the ground, and defendant, after waiting for some little time, deliberately shot him again.

Tbe evidence of the defendant was that as be came; around tbe end of tbe car, tbe deceased took tbe child nn-1 der bis arm and went with bis hand towards bis pocket, and that be shot tbe deceased thinking be was reaching for a weapon. Defendant raises no question of tbe sufficiency of this evidence.

After setting out five alleged errors in bis brief, defendant says:

“It will be seen from tbe foregoing assignment of errors that tbe sole question presented by this case depends upon tbe question of tbe correctness of tbe instructions, or tbe refusal to give certain special instructions.”

Tbe plea interposed was self-defense.

Instructions Nos. 10, 12, 13, and 13A were apparently copied from the case of Turner v. State, 4 Okla. Cr. 189, 111 Pac. 988, and No. 11 followed the case of McDaniel v. State, 8 Okla. Cr. 215, 127 Pac. 358. AJ11 of tbe instructions given by tbe court upon self-defense, except No. 10, have been approved in form or substance in Kent v. State, 8 Okla. Cr. 192, 126 Pac. 1040; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107, 1110; Gransden v. State, 12 Okla. Cr. 425, 158 Pac. 157; Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Rose v. State, 46 Okla. Cr. 274, 287 Pac. 751.

In Humphrey v. State, 8 Okla. Cr. 449, 128 Pac. 742, this court condemned instruction No. 10 as not being a correct statement of tbe law. This condemnation is not sound. The instruction did not require that tbe danger must be actuajl and imminent as there stated, but required only that it reasonably appear so to defendant. Before one may take human life in bis claimed defense, tbe danger should appear to him from his standpoint as real and imminent, and that is al)l the instruction required, and is all the instruction requires in the case at bar.

The instructions mnst be considered as a whole, and, when considered together, if they fairly and correctly state the law applicable to the case, they will he sufficient.

The special instructions requested by defendant and refused by the court are in principle covered by the general instructions.

The question of the sufficiency of the instructions and the action of the court in refusing to give special instructions must always be considered and determined by the facts in each case in which they arise. Anderson v. State, 8 Okla. Cr. 91, 126 Pac. 840, Ann. Cas. 1914C, 314.

Defendant contends that the punishment of 20 years is excessive. The evidence of the state set out in this opinion is a sufficient answer to this contention.

For the reasons stated, the cause is affirmed.

DAVENPOBT, P. J., and EDWARDS, J., concur.


text:
    FRANK POSEY v. STATE.
    No. A-7794.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 527.)

      Jno. L. Ward, 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 district court of Tulsa county on a charge of murder and was sentenced to life imprisonment in the penitentiary.

The case was tried the latter part of September and first part of October, 1929. The appeal was lodged in this court April 2, 1930. No briefs in support of the appeal have been filed, and no' appearance for oral argument 1 was made at the time the case was submitted. We have read the record with care to ascertain if defendant had a , fair trial or if any errors substantially prejudicial were / committed.

The record discloses that on April 16,1929, Sam Frost and his wife lived at the town of Bixby; that about midnight of that date defendant and his wife drove from their home in Leonard to Bixby, and the wife remained in the car with the engine running and defendant went on the porch and knocked at the door and awakened Frost and his wife; that Frost went out on the porch, and defendant immediately shot him with a pistol, from which death resulted almost instantly. Defendant then returned to the car and they drove away. The defense is what is sometimes referred to as the unwritten law; that is, that Frost had been criminally intimate with the wife of defendant covering a period of about two years prior thereto'. Both defendant and his wife testified to the homicide sub-. stantially as stated. It is apparent from the record that defendant knew of illicit relations between his wife and the deceased and deliberately decided to take the law into Ms own bands and kill Frost. There is also some evidence which tends to indicate that a money consideration between them was discussed. The fact that deceased was guilty of an offense in his relations with the wife of defendant did not justify defendant in seeking out and killing deceased. “The right to avenge a wrong done a female member of one’s family by killing the wrongdoer” does not exist in this state. It is not permitted one thus wronged to take the law into his own hand and wreak private vengeance on the wrongdoer. January v. State, 16 Okla. Cr. 166, 181 Pac. 514; Pickett v. State, 40 Okla. Cr. 289, 268 Pac. 732. The record amply sustains the verdict and judgment.

The case is affirmed.

DAYENPOET, P. J., and CHAPPELL, J., concur.


text:
    HOMER HINKLE v. STATE.
    No. A-7736.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 526.)
    Ash, Jones & Wesner and Mathers & Mathers, 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 Washita county of the crime of possession of intoxicating liquor, to wit, about one gallon of wine, and his punishment fixed by the court at a fine of $250 and imprisonment in the county jail for 60 days.

Defendant complains of numerous errors, only one of which needs to be considered by this court in determining the issues raised by defendant in his petition in error, namely, that the court erred in giving instruction No. 8, which reads as follows:

“Gentlemen of the Jury, you are instructed that if the state proves that the defendant had more than one quart of wine as charged in this case beyond reasonable doubt, then you shoujld 'bring in a verdict of ‘guilty’ unless the defendant proves to your satisfaction that he did not have it with the intent to violate the law, that is, to sell, barter, transport, give away or otherwise dispose of said wine contrary to- law; that the defendant is not violating the law if he give it to- his wife or minor children, that is the immediate members of his family and if you find from all the evidence, facts and circumstances in this case, that the defendant did not have the wine to violate the law with the same, then it will be your duty to- bring in a verdict of ‘not guilty.’ ”

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

“Under a provision of the act of 1913 [chapter 26], declaring that the keeping in excess of a certain amount of intoxicating liquors shall be ‘prima facie evidence of an intention to- convey, sell, or otherwise dispose of such liquors,’ evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after tbe presentation of such proof, but such evi-1 deuce is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.”

It is error to* instruct the jury that, where the state mates out a prima facie case by introducing in evidence more than one quart of intoxicating liquor, the defendant must prove to the satisfaction of the jury that he did not have it with intent to violate the law. Cowherd v. State, 7 Okla. Cr. 1, 120 Pac. 1021; Jay v. State, 42 Okla. Cr. 32, 274 Pac. 487.

For the error in giving the instruction complained of, the cause is reversed.

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


author: PEB CUBIAM.

text:
    Ex parte ROY NEWSOME et al.
    No. A-8095.
    Opinion Filed March 6, 1931.
    (296 Pac. 1116.)
    Owen Black and John W. Tyree, for petitioners.
    J. Berry King, Atty. Gen., for respondent.
   PEB CUBIAM.

This is an original proceeding in habeas corpus. Petitioners allege that they are held by the sheriff of Comanche county under a finding of probable cause and a commitment from a magistrate upon a preliminary wherein petitioners were charged with murder, that there is no evidence whatever that petitioners had any connection with the murder charged, and that they are entitled to be discharged.

The record shows that at the time charged one Mora was hilled at a resort where petitioners and one Bill Broach ' were present, engaged in what appeared to be a drinking carouse, that the killing was done by Broach in his necessary self-defense, and that he was hefLd for the district court by the committing magistrate. Broach is not seeking release on bail or otherwise. We deem it unnecessary to further refer to' the testimony. An examination of the transcript convinces us that the state has not been able to present more than a bare scintilla of evidence connecting defendants with the commission of the crime charged, and that they are entitled to be discharged.

The writ is awarded.


author: PER CURIAM.

text:
    JOHN RICHBOURG v. STATE.
    No. A-7665.
    Opinion Filed Sept. 13, 1930.
    Rehearing Denied March 6, 1931.
    Application for Leave to File Second Petition for Rehearing Denied March 28, 1931.
    (296 Pac. 1117.)
    H. P. Hosey, for plaintiff: in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county on a charge of manufacturing whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

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

We have examined the record, and the evidence is sufficient from which the jury might reasonably and logically find the defendant guilty.

The case is affirmed.


author: PEE- CUEIAM.

text:
    Ex parte EMMETT WILSON.
    No. A-7488.
    Opinion Filed March 6, 1931.
    (296 Pac. 1118.)
   PEE- CUEIAM.

The plaintiff filed his original petition in this court on August 1, 1929, asking his discharge on the ground that the testimony taken in the preliminary trial was insufficient to show an offense had been committed.

This petition was filed in this court August 1, 1929, since which time no further steps have been taken by the petitioner. After a careful reading of the testimony taken in the preliminary, and the allegations contained in the petition, we hold that the facts stated are not sufficient to warrant a release of the petitioner.

The writ is denied.


text:
    J. H. PORTER v. STATE.
    No. A-7562.
    Opinion Filed Feb. 7, 1931.
    Rehearing- Denied March 6, 1931.
    (297 Pac. 305.)
    Sid White, 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 superior court of Okmulgee county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for seven years.

Counsel for defendant makes no contention that the evidence is insufficient to support the verdict of the jury.

Defendant raises but one question, and that is that the court erred in failing to instruct the jury that the injury complained of must be the proximate cause of the death, and particularly complains of instruction No. 13.

In the case of Logan v. State, 42 Okla. Cr. 294, 275 Pac. 657, this court had under consideration the question involved in this case, and there laid down the rule announced in paragraphs 1 and 2 of the syllabus in the case at bar.

Dr. M. K. McElhannon, testifying for the state, testified as follows:

“Q. And you made several trips, did you? A. Yes, sir, I treated her for a number of days.
“Q. Describe her condition on the successive trips you made. A. Well, there developed as a result of the injuries what is known as traumatic meningitis, inflamed condition of the brain which ran a very marked and decided course, characterized by those symptoms which characterize injuries of that kind, until the inflammatory condition so enveloped and so inflamed the brain as to take the life of the patient.
“Q. She did die? A. She did.
“Q. On what date did she die? A. My recollection is that it was 10 days after the injury, or fifteen.
“Q. Was her death caused by this injury she received? A. Yes, sir.”

It conclusively appears from this evidence that the injury was the proximate cause of the death.

Defendant asked no other or further instructions. Under the facts as shown by the record, the instruction complained of, whille not a model one, was sufficient to advise the jury that they must find that the injury was the proximate cause of the death.

The record discloses an aggravated case of drunken driving. The evidence shows the defendant left behind him a trio of injured persons from Spelter City until he finally ran his car into a ditch at the east end of the town of Dewar, and that he never stopped to see what damage he had done or offer aid to any wlm had been injured.

The error complained of being without merit, the cause is affirmed.

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


text:
    ODE BANDY v. STATE.
    No. A-7697.
    Opinion Filed March 6, 1931.
    Rehearing Denied March 28, 1931.
    (296 Pac. 1001.)
    O’Bryan & Lucas, 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 Johnston county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at 30 days in the county jail and a fine of $100.

The evidence of the state was that the officers had a search warrant to search the premises of defendant, and in his smokehouse, about 12 feet from his house, found 12 or 13 gallons of brew in jars, 3% cases of homebrew in bottles, 2 cappers, and a bunch of caps; that defendant was in possession of the premises and was at home when the search was made; that the officers had this beer analyzed and it contained 10 per cent, of alcohol according to quantity.

Defendant contends that this evidence was insufficient to support the verdict of the jury, but such contention is without any merit.

No error appearing upon the record and the evidence being sufficient to' support the verdict of the jury, the cause is affirmed.

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


text:
    E. C. JUHL v. STATE.
    No. A-7783.
    Opinion Filed March 6, 1931.
    (296 Pac. 763.)

      Orban Patterson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, to wit, choctaw beer, with the unlawful, willful, and wrongful intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days. Prom which judgment the defendant has appealed.

Before the trial began the defendant appeared by his attorney and filed a motion to suppress the evidence obtained by the state by a search of the premises at 2427 West G. street, Oklahoma City, Okla., on the 5th day of August, 1929, for the reason that the building searched was used for no purpose other than a homestead, and was not used for a business property or for business purposes. Second, that the officers had no' legal search warrant to search the property they did search, and the property seized was in violation of the lega|l and constitutional rights of the defendant.

Testimony was taken upon the motion to suppress, and the testimony disclosed that the affidavit for the search warrant and the search warrant did not describe the home of the defendant which the officers searched. The testimony shows that the defendant, with his family, lived at 2427 West G., which was not described in the affidavit or the search warrant.

’ Tbe defendant, bas assigned several errors alleged to bave been committed by tbe trial court. Assignment No. 3 is:

“Because tbe court erred in overruling tbe defendant’s motion to suppress tbe evidence.”

Section 7012, O. O. S. 1921, provides:

“No sucb warrant shall issue but upon probable cause, supported by oatb or affirmation describing as particularly as may be tbe place to be searched, and tbe person or thing to be seized.”

This section refers to tbe issuing of search warrants. Tbe general rule is that search warrants are to be strictly construed and tbe place to be searched is limited to tbe place described therein.

Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued to search a private residence, occupied as sucb, unless it, or some part of it, is used as a store, shop, hotel, boarding bouse, or place for storage, or unless such residence is a place of public resort.”

In Miller et al. v. State, 34 Okla. Cr. 103, 245 Pac. 68, it is said, it is evident that it was tbe intention of tbe framers of tbe Constitution and tbe lawmakers to limit tbe right of search to places and premises where tbe proper affidavit showing probable cause was filled, particularly describing the premises to be searched. This court bas repeatedly held that tbe description in tbe affidavit and search warrant must particularly describe tbe place to be searched and tbe thing to be seized. Neither tbe affidavit nor search warrant in this case is sufficient to warrant a search of tbe defendant’s residence, as they do not describe tbe residence of tbe defendant with that particularity required by tbe statute; in fact, neither tbe affidavit nor tbe search warrant describes tbe residence of the defendant. Tbe motion of tbe defendant to suppress tbe evi-! dence offered by tbe state was well taken and should have ¡ been sustained. Tbe testimony secured by tbe illegal ’ search and seizure was inadmissible.

There are other errors assigned by tbe defendant which possess merit, but in tbe view we take of this record it is not necessary to consider them. There being no competent testimony to' sustain the judgment, tbe case is reversed. .

CHAPPELL and EDWARDS, JJ., concur.


text:
    BLACKIE ASHER v. STATE.
    No. A-7739.
    Opinion Filed March 6, 1931.
    (296 Pac. 763.)
    Phillips & LaMore, 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 Seminole county of the crime of unlawful possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish and dispose of the same, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of 180 days.

The evidence of the state was that the defendant was seen to hide eleven half pints of whisky under the edge of a theater near his residence in Webber City; that the officers were notified and took the whisky away and later arrested the defendant.

Without objection or exception by defendant or his counsel, the state was permitted to prove that defendant’s place of business had been raided several times and large quantities of intoxicating liquor, consisting of beer and whisky, found; that people congregated there to drink intoxicating liquor; that drunk people had been arrested and taken from such place on several occasions; and that the reputation of defendant’s place, as being a place where intoxicating liquors were sold, was bad.

Defendant on cross-examination admitted that he had twice been convicted and twice served a term of 30 days in the county jail and twice paid a fine of $50 for the unlawful sale of intoxicating liquor at that place.

Defendant contends, first, that evidence of the reputation of his place was inadmissible.

Since defendant made no objection to the introduction of this evidence and saved no exception to the same, the record presents no question for this court. But, even if exception had been saved, there was sufficient predicate laid to introduce this evidence.

The evidence in the case is sufficient to support the verdict of the jury. The fact that the defendant had previously twice been convicted of a like offense, and the evidence of the kind of a place defendant continually operated in that community justified the jury in assessing the $500 fine and six months’ imprisonment in the county jail.

For the reasons stated, the cause is affirmed.

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


text:
    EARLE E. EVERIDGE v. STATE.
    No. A-7585.
    Opinion Filed Feb. 14, 1931.
    Rehearing Denied March 6, 1931.
    (3 Pac. [2d.] 750.)
    Prank Leslie, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of forgery in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for 18 years.

The evidence of the state was that Nellie I. Baker, an Osage Indian, was the owner of certain valuable real estate in Osage county, adjoining the town of Skiatook, and that the defendant procured a woman purporting to be Nellie I. Baker to- appear before James L. Morris, a notary public, and acknowledge a deed to which the signature of Nellie I. Baker had been forged, purporting to convey said premises to Lillian L. Evans; that Nellie I. Baker, who was then in the courtroom and seen by the witness, was not the woman wbo acknowledged tbe deed; that defendant represented to the witness that the woman acknowledging the deed was Nellie I. Baker; that this deed was recorded, and that thereafter the said Lillian L. Evans, through the defendant, exchanged this property with Neely Casper and C. C. Casper for some property in the city of Tulsa, No'. 733 North Quincy street; that this deed was made to the defendant; and that an additional consideration of $550, part in cash and part in notes, was given defendant.

The defendant did not take the witness stand, but called witnesses in an effort to prove that the signature on the deed was the genuine signature of Nellie I. Baker.

Defendant contends first that the court erred in overruling his application for a continuance on account of absence of counsel.

It appears from the record that Thomas I. Monroe and G. E. Croom had been representing the defendant as attorneys; that on the day before the case was called for trial Mr. Monroe withdrew as attorney, and the defendant thereupon employed Barnes McCain and John Rutherford as additional counsel.

On the next day, when the case was called for trial at 9 o’clock, the trial court adjourned the hearing until 1:30, to give counsel additional time to prepare their defense.

In Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923, this court said:

“An application for continuance on the ground of the absence of leading counsel is properly denied, where defendant is duly represented by his other counsel.”

An examination of the record discloses that defendant was ably represented; Ms counsel having left nothing undone in his defense.

The granting of a continuance being in the discretion of the court and there being nothing in the record to indicate an abuse of such discretion, the court did not err in overruling the application.

Defendant next contends that the state failed to prove venue.

The state introduced the original deed in evidence, the jurat of which showed that it was made and acknowledged in Tulsa county. James L. Morris, notary public, who took the acknowledgment, testified that the defendant appeared in his office in Tulsa with a woman claiming to be Nellie I. Baker, and that the acknowledgment to the deed was taken there at that time.

This court has repeatedly held that venue does not have to be proved beyond a reasonable doubt, and that it may be proved by circumstantial evidence. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Cole v. State, 34 Okla. Cr. 366, 246 Pac. 653; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

The evidence of the state was sufficient to establish the venue.

The defendant next contends that the court was guilty of prejudicial conduct.

It appears from the record that the state had rested and the defendant had been offering evidence in his defense ; his counsel suggested to the court that it would be necessary to adjourn until the next morning on account •of the fact that the defendant had no other witnesses present to testify. Thereupon the following proceedings were had:

“The Court: The defendant is here.
“Mr. Rutherford: Note the comment of the judge upon the defendant’s presence in court, intimating that he might testify.”

Defendant now urges that this remark of the court falls within the inhibitions of section 2698, C. O. S. 1921, which reads as follows:

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

This section forbids the trial court from mentioning the fact that the defendant did not testify in his own behalf, and prohibits the county attorney from commenting on it.

This court, in Shelton v. State, 49 Okla. Cr. 430, 295 Pac. 240, said:

“¡Section 2698, C. O. S. 1921, contains two' inhibitions. The first is that the failure of the defendant to take the stand on his own behalf shall not be mentioned on the trial; the second is that this fact shall not be commented on by the counsel for the state. The trial judge is not excepted from the first inhibition, and it is error for him to refer to such fact in his instructions or otherwise. Counsel for the state comes within both inhibitions, and it is error for him to mention the fact that the defendant has not taken the witness stand, or to comment upon the same in his arguments to the jury.”

This court has been liberal in its interpretation of section 2698, supra, to protect defendants, but it has never held that an occurrence of this kind, while improper, was sufficient to require a reversal of the case.

Considering the whole record and the undoubted guilt of the defendant as shown by the evidence, the defendant was not prejudiced by such remark.

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

The jury were unable to agree upon the punishment and left the fixing of the same to the court. Due administration of justice demands that the punishment inflicted shall be commensurate with the crime and shall be administered for the purpose of protecting the public by preventing crime. It is the duty of this court where the punishment assessed appears to be excessive to- reduce the same. Under all of the facts in this case, imprisonment in the state penitentiary for 10 years will be sufficient punishment.

For the reasons stated, the punishment of the defendant is reduced from 18 years in the penitentiary to 10 years in the penitentiary, and, as modified, the cause is affirmed.

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


text:
    FRANK BUCK v. STATE.
    No. A-7600.
    Opinion Filed Feb. 7, 1931.
    Rehearing Denied March 6, 1931.
    (3 Pac. [2d.] 747.)

      I Joe S. Eaton, for plaintiff in error.
    * J. Berry King, Atty. Gen., and Smith C. Matson, Asst. ■ Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of the crime of larceny of domestic animals, and his punishment fixed by the jury at imprisonment for two years in the state penitentiary.

The evidence of the state was that on or about the 12th day of January, 1928, the complaining witness, Mathis Page, was the owner of a cow three years old, which was missed from Page’s premises on that date; that this cow was in the same field with three head of stock owned by one Cooksey, and these cattle were all missed at the same time; that during the month of February the Pag'e and Cooksey cows were found in the possession of defendant, in McIntosh county; several witnesses for the state posi- ; tively identified the Page cow found in defendant’s possession as Page’s property, which had been stolen from him, and also identified the Cooksey cows missing at the same time and found in the possession of defendant.

Defendant claimed he had bought the Page cow in question from a man by the name of Severe, who in turn had purchased it from an Indian woman named Nancy. The witnesses for the defendant were as positive in their identification of the cow in question as were the witnesses for the state.

After all the testimony had been heard by the jury, they were permitted to view the cow in question, under proper instructions by the court, of which no complaint is made by the defendant.

This court on numerous occasions has held that the credibility of the witnesses and the weight to be given their evidence is exclusively for the jury, and, where there j is a conflict in the evidence, this court will not disturb the 1 verdict of the jury where there is competent evidence to support such verdict.

The evidence in this case being sufficient to support the verdict of the jury, the cause will be affirmed unless the errors of law complained of are sufficient to require a reversal.

Defendant contends that the county attorney made prejudicial remarks, in the presence of the jury, during the triajl, and was guilty of prejudicial conduct in his argument to the jury.

A careful examination of the remarks complained of, as shown by the record, discloses that none of them were likely to prejudice the jury in any manner.

Defendant contends that the county attorney was guilty of misconduct in the cross-examination of some of defendant’s witnesses.

The case was vigorously prosecuted. The county attorney in his cross-examination did subject the witnesses to a critical examination, but there is nothing in the questions nor the conduct of the county attorney that indicates anything other than an effort to test the witnesses both for correctness and truthfulness of their testimony.

Defendant also contends that the court erred in permitting the state to introduce evidence of the finding of other property, stolen at the same time, in the possession of defendant.

There was considerable controversy as to whether the. cow in question was stolen from the prosecuting witness or had been purchased by the defendant from other parties. The finding of the cattle stolen from Cooksey in defendant’s possession contemporaneous with the possession of the cow in question was a strong circumstance tending to show the guilt of defendant.

This court has held that property recently stolen and found in the possession of defendant contemporaneous with the possession of other property, for the stealing of which defendant is being prosecuted, is admissible as showing a plan or scheme, although it may tend to' show the defendant guilty of another offense. Oldham v. State, 42 Okla. Cr. 209, 275 Pac. 383; Oldham v. State, 43 Okla. Cr. 314, 278 Pac. 663.

Tbe defendant bad a fair trial. Tbe jury duly found bim guilty, and tbe evidence supports sucb conviction.

For tbe reasons stated, tbe cause is affirmed.

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


text:
    J. M. PYLE et al. v. STATE.
    No. A-7700.
    Opinion Filed March 6, 1931.
    (296 Pac. 761.)
    J. C. Cornett, for plaintiff in erroi.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiffs in error hereinafter referred to as tbe defendants, were convicted of disturbing tbe peace of H. O. Bo¡len, and each sentenced to pay a fine of $100, from which sentence tbe defendants have appealed.

Tbe facts on behalf of tbe state, in substance, show: That on May 4, 1929, H. O. Bolen lived near a place in Osage county known as Webb City, with a family by tbe name of Corn. Bolen was tbe owner of a dog which was killed tbe night prior to May 4, 1929, and he had received some information that the defendant Chester Wood' had killed his dog. On the evening of May 4, 1929, Bolen learned that Wood was in Webb City, and went to a car in which Wood and some other parties were sitting, and asked if Chester Wood was in the car, as he did not know the defendant Wood. Wood replied that his name was not Wood but Watson. Bolen left and went about his business until bedtime, and some time after Bolen had retired the defendant Wood, who was an undercover man for the government, and the defendant J. M. Pyle, and several others went to the Corn home, which was about a half mile from Webb City, knocked on the door, and demanded to know where Bolen was. They were informed by Mrs. Corn that he was in his bedroom asleep. They went to his bedroom door, and, without any ceremony, opened the door, and went into the room where Bollen was sleeping. The defendant Wood was accompanied to the bedroom by the defendant J. M. Pyle and some other parties. They were all armed. When they got into the bedroom, Bolen was still in bed. Wood said: “I was Watson a while ago, but I am Wood now and I want to know what in the hell Bolen wanted” — at the same time patting his hip. The defendant Pyile spoke up and said: “I understand you are pretty damn tough and jumped my man up down town, but I want you damn bootleggers to know I am not going to stand for it. I want to know what you are going to do about it.” The prosecuting witness replied, “I am going to lay here and take it”; and further stated: “I knew I would have gotten pistol whipped, or shot if I had resisted them. Wood said, ‘You don’t know how near you came to getting killed while you were standing there at the car; I came near putting two bullet holes through you.’ ”

The testimony on behalf of the defendants shows that Wood was the man who killed Bolen’s dog, and that Wood was the man who answered Bolen on the street in Webb City early in the evening prior to the time they went to the bedroom of Bolen, when Bolen asked if his name was Wood, and he said his name was Watson. The defendants claim they went to> Bolen’s room to see what he wanted with Wood. The contention of the defendants is not borne out by the testimony or the circumstances,, which all admit existed at the time they went at the dead hour of midnight, and went into the room of Bolen at his home.

The defendants have assigned several errors alleged to have been committed in the trial of their case. The first error discussed is, the court erred in overruling the demurrer of the defendants to the information. A careful examination of the information shows that it stated facts sufficient to advise the defendants that they were charged with disturbing the peace of the prosecuting witness, Bolen. The court did not err in overruling the demurrer.

The defendants next complain that the court erred in refusing to sustain their motion for a directed verdict. This contention is untenable. While the testimony is con-dieting, there was testimony sufficient to justify the court in submitting the case to the jury, and the jury, after hearing the evidence, found the defendants guilty as charged in the information.

It is clear from the testimony that the defendants in this case knew the prosecuting witness Bolen had learned that Wood had killed his dog, and that, when Bolen approached the car in which Wood was sitting early in the evening before they went to the home of Bolen about midnight, and asked if his name was Wood, at that time the prosecuting witness had an even break with the defendant Wood, and Wood denied his identity. The prosecuting witness went away, and thereafter Wood gathered his crowd together and went to* the home of Bolen for the purpose of learning what Bolen desired to see Wood for. The testimony in the record tends to' show that when they entered the room of Bolen they entered it for the purpose of provoking a difficulty if possible with Bolen, and, if he resisted, as stated by the witness, he would have been pistol whipped or shot by the defendants.

The testimony in this case is amply sufficient to sustain the judgment. There are no errors in the record of sufficient merit to- warrant a reversal.

The judgment is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    E. J. MONTGOMERY v. STATE.
    No. A-7629.
    Opinion Filed March 6, 1931.
    (296 Pac. 761.)
    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 unlawfully manufacturing intoxi-eating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 30 days. . ' j

The evidence of the state was that the officers had a search warrant, and, upon search of the defendant’s premises, that down in a field, in a hollow, they found 15 gallons of beer in two jars; that a path led from defendant’s house to the beer, and that the beer was found in a pit approximately 2% feet deep, which was covered over and a lighted lantern was in the pit; that this beer was intoxicating ; that the officers also found an old capper and some empty bottles and some caps in a dugout near defendant’s house; that defendant told the officers this was his beer; that he had made it; and that it was the only way he had to make a living.

Defendant testified that he had been hurt in a fall at a school building where he had been janitor and did not remember making the beer or telling the assistant county attorney, the sheriff, or his deputies that it was his.

Defendant introduced some evidence that he was a pauper and his family being supported by the county. Assuming this to be true, it will not be any great hardship to the defendant or the county for the county to continue caring for the defendant in the county jail while it provides for the family outside.

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

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


text:
    I. M. LEVINE v. STATE.
    No. A-7599.
    Opinion Filed March 6, 1931.
    (296 Pac. 758.)
    Pitchford & Pitchford, 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 Okmulgee county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment for eighteen months in the state penitentiary.

The evidence of the state was that the defendant at the time of the larceny was engaged in the business of buying and selling second hand oil well supplies and materials, with an office in the city of Okmulgee; that the prosecuting witness, J. K. Gardner, was an oil contractor and producer; that in May, 1927, Gardner left Okmulgee and went to Pennsylvania and remained there until the 5th day of February, 1928; that when Gardner left for Pennsylvania he was the owner of 3,500 feet of seven-eighths inch galvanized drilling; cable No. 69241-A and 4,500 feet of wire cable and sand line, which property was worth approximately $1,000, and the same was located on section 35 — 13—13, in Okmulgee county; that soon after Gardner returned from Pennsylvania he visited the lease where the property had been left, and found that the same had been removed therefrom in his absence; that Gardner had not authorized any one to remove or dispose of said property; that search was made for the missing property and that this search led to the office of defendant; that defendant seemed surprised to ¡learn that the property was missing and said he would help find it if he could, and asked Gardner to look defendant’s yard over; that later it was discovered that defendant had sold this cable and sand line in November, 1927, to J. E. Martin, for $450, which was less than one-half the value of the property, and that defendant delivered the property to Martin’s lease near Bixby, in Tulsa county; that defendant talked to a truck man about 4 o’clock one afternoon and said that it had to be hauled that evening and showed the driver where it was; and that about dark the driver took the truck and got the stuff and hauled it to the location near Bajldhill.

It also1 appears in the evidence of the state that the defendant took from 2,500 to 3,000 feet of oil well casing from the Gardner lease and rented it to' one H. B. Smith and collected $500 rent for the same; that defendant told Smith that the pipe belonged to some Jews in Tulsa.

Defendant testified and his defense was that he took the property in controversy from the Gardner lease in pursuance of an agreement Bill Hewitt, an alleged partner of defendant, had with Gardner to1 sell' Gardner’s property for $20,000 and take as commission the surpilus above $20,000 and whatever production Gardner had, amounting to1 8 or 10 barrels. Hewitt was not called to testify, and the only evidence offered by the defendant to support his claim was what he claimed Hewitt told him about his contract with Gardner.

If the jury believed the unsupported story of the defendant that he sold the property in good faith believing that he had a right to do so by virtue of the alleged agreement which he claims Hewitt said that he (Hewitt) had with Gardner, then the jury might have acquitted' him.

The defense of the defendant amounted to a contention that he was not guilty of the crime of larceny, but, if guilty of anything, it was embezzlement.

“Larceny” is defined in section 2101, C. O. S. 1921, as follows:
“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Under this definition, the evidence of the state establishes a case of grand larceny, and not embezzlement.

Defendant contends that the state failed to prove that the property was taken without the consent of Gardner, the owner.

Gardner, the owner of the property, testified that he new. gave the defendant or Hewitt any authority to sell M,ny part of the property or to remove the same from the premises; but that he did, a few months before he left for Pennsylvania, authorize Hewitt to sell all the property on the lease for the sum of $20,000 cash, to one Vivens, in Tulsa; and that when Hewitt failed to make that sale that Gardner withdrew the proposition and never thereafter conferred with Hewitt or any one else, nor authorized anyone to take the property from the lease or sell the same.

While the prosecuting witness does not directly say that the property was-taken by the defendant from the lease wthout his consent, yet all the facts and circumstances in the case show that the taking was without his consent.

In Filson v. Territory, 11 Okla. 351, 67 Pac. 473, that court said:

“In order to1 support a conviction for the crime of larceny, the proof must show that the property which is the subject of larceny was taken without the consent of the owner; but direct and positive declarations of the owner are not required. If all the facts and circumstances in evidence connected with or surrounding the taking will warrant the reasonable and rational inference that the property was taken without such consent, then such verdict will not be disturbed for lack of direct proof.”

In George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052, 1054, 100 Pac. 46, this court said:

“The fact that the owner caused search to be made for the stolen property is a cogent circumstance to show want of his consent to the taking.”

Defendant next contends that the court erred in admitting evidence that at the time the stolen property was found by Gardner an effort had been made to destroy or efface the numbers that were on the spool on which the cable was wound.

This was a circumstance tending to show that the property was probably taken with a felonious intent to appropriate it and to1 deprive the owner of it, instead of under any claim of right. The weight of this evidence, of course, was dependent upon the showing made connecting defendant with the act of defacement or mutilation. Here defendant admits the taking, and that admission is at least sufficient to show the exercise of some dominion and control over this property by defendant before its discovery and after the taking. No one else would have any motive to deface the property, and this fact was a sufficient predicate to render the evidence admissible and let the jury pass on its probative force. Watson v. State, 125 Ark. 597, 187 S. W. 434; Johnson v. State, 77 Ga. 68; Areola v. State, 40 Tex. Cr. R. 51, 48 S. W. 195; State v. Church, 54 Utah, 53, 182 Pac. 218.

Defendant next contends that the trial court erred in excluding certain material and competent evidence offered by defendant.

An examination of the record discloses that practically all the evidence complained of was admitted by the court, and since defendant made no tender of the balance of what he expected to prove, this court is unable to tell whether the same was competent or not. If the court refuses to permit the introduction of evidence, the party offering the same should dictate what he expects to prove by the witness into the record and let the court rule upon same and save his exceptions. Where there is no offer to prove anything further and no showing made, there is nothing before this court for review.

Defendant next contends that the court erred in failing to instruct the jury that they must find that the property was taken without the consent of the owner.

In instruction No. 1, the court, after defining “larceny,” said:

“Before you can convict the defendant of grand larceny as charged in the information, you must find that the defendant took the property by fraud or stealth, without the knowledge or consent of the owner thereof, and against his will, and that the defendant had, at the time of such taking, the intent to deprive the owner thereof permanently.”

The setting out of this instruction shows the contention of the defendant to' be without merit.

Defendant complains of other instructions, but the record discloses that no exceptions were saved to the same.

When all the instructions are considered together, they fairly state the law of the case and are as favorable to the defendant as the facts in the case would warrant.

Finally, it was contended that the defendant was deprived of a fair and impartial trial by reason of the alleged prejudice of John S. Briscoe, one of the jurors. The record discloses a clear conflict'of fact as to the alleged disqualification of this juror. The juror swore positively that he knew nothing about this case nor about the defendant or his reputation, when he was sworn as a juror, and that he had no prejudice against him; that there was nothing in his mind at the time that could have prevented him from giving, the defendant a fair trial.

The affidavits filed by the defendant in support of his motion for a new trial set out that the next day after the trial the juror discovered that he had had some tools stolen from him; that this discovery incensed him, and he expressed himself in no uncertain terms regarding thieves in general. This all occurred after the trial of the case and could not have had any bearing on any prejudice that said juror could have had against defendant prior to the trial. The juror made a rebuttal affidavit for the state, in which he denied making the statements set out in the affidavit offered by the defendant and reiterated all he had said in his examination on his voir dire, and denied that he had any prejudice against the defendant that in any manner prevented defendant from having a fair hearing before the jury.

The granting or overruling of a motion for a new trial npon the ground complained of is within the sound discretion of the trial court. Where there is a clear conflict between the showing on the part of the defendant and the state, such ruling will not be disturbed on appeal unless it affirmative¡ly appears from the record that such discretion was abused.

To hold that this showing of alleged prejudice is such as to entitle the defendant to a new trial would place a premium on speculative grounds for disqualifying jurors and open the door to the granting of new trials on such grounds to such an extent as to- encourage perjury and render the verdicts in criminal cases in this state unstable and of no force or effect.

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

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


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    Ex parte JACK WHITE.
    No. A-8004.
    Opinion Filed March 6, 1931.
    (296 Pac. 756.)
    Prank B. Grant, for petitioner.
   DAVENPORT, P. J.

The defendant filled his original petition in this court on October 9, 1930, alleging that on or about the..day of., 1928, he was convicted in the county court of an offense of illegal possession of intoxicating liquor, and sentenced to a term of 60 days in county jail, and to pay a fine of $150; that he appealed his case to the Criminal Court of Appeals, which judgment was affirmed by the Criminal Court of Appeals, on the.day of January, 1930; that the mandate from said Criminal Court of Appeals was received and filed in the clerk’s office of the county court on the 18th day of February, 1930, the said petitioner was taken before the federal court, and was by said court sentenced to a term of six months’ imprisonment, to be confined in the said county jail of Oklahoma county, in custody of Stanley Rogers, sheriff of Oklahoma county; that the sheriff of said county has custody of the petitioner, and he is confined in said common jail of said county.

Petitioner further alleges that the term of imprisonment and fine and costs on behalf of the state have been served by said petitioner, and the term of imprisonment by the federal court has been served; that the two terms of imprisonment must and did run concurrently by operation of law. The statement made by petitioner shows that the sentences imposed upon him were imposed by courts having different jurisdiction; therefore the sentences could not run concurrently.

The writ is denied.

CHAPPELL and EDWARDS, JJ., concur.


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    LLOYD HOLLINGSWORTH v. STATE.
    No. A-7780.
    Opinion Filed March 14, 1931.
    (297 Pac. 301.)

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

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for 18 years.

The evidence is voluminous. It is enough to say that that of the state was sufficient to support a conviction. Defendant, testifying for himself, admitted the hilling, but sought to1 justify the same on the ground of self-defense.

Defendant contends first that the court erred in continuing this case from the May, 1929, term and overruling motion to dismiss the same at the November, 1929, term.

The defendant filed his motion to dismiss the case because he had not been brought to* trial at the next term of court, as required by section 2913, C. O. S. 1921. Upon the hearing upon such motion to dismiss, it appeared that the defendant was charged with the murder of his brother and that at the same time the case at bar was pending against the defendant, where he was charged with the murder of his father, that the case for the murder of his brother was tried at the May, 1929, term of court; that a mistrial resulted; that shortly afterward and at the same term of court another jury was impaneled, and defendant again tried for the murder of his brother and acquitted; that thereupon defendant demanded trial in the case at bar, and that the judge made an investigation and learned that there were insufficient funds to pay the expenses of the trial and thereupon continued the case until the next term of court; that defendant was enlarged upon bond and went to Wichita, Kan., where he was arrested by the federal government for a violation of the Dyer Act, and thereafter was brought to Enid, Okla., where he was lodged in the Garfield county jail; that thereupon Corn & Corn, defendant’s counsel, presented a request to the court that the defendant be permitted to be surrendered to the sheriff and his bond exonerated, which was done; that at that time defendant’s counsel said they were not in a hurry to try the matter.

The state made a counter showing on the motion to dismiss, and the court made findings of fact at the time the motion was overruled. Tbe facts so found by tbe court were sufficient to constitute justifiable cause for failure to bring tbe defendant to trial at tbe next term of court, and tbe motion to dismiss was property overruled.

Defendant next contends that tbe court erred in overruling bis application for a change of venue.

It is alleged, in substance, in this application that tbe defendant bad been charged with tbe sale of approximately 60 stolen automobiles in Dewey county, and that tbe fact that be was charged with these offenses was so generally known in tbe county that it would be impossible to secure a jury that would give him a fair and impartial trial. This application was supported by affidavits of four citizens of tbe county, in substance as above set forth. No claim was made in this showing that there was any bias or prejudice against the defendant on account of tbe murder of bis father and brother. Tbe state in rebuttal filed 38 affidavits of citizens of tbe county in support of tbe state’s declaration that a fair and impartial jury could, be had in tbe county.

Tbe granting of a change of venue is by statute made discretionary with tbe court. This court will not reverse the ruling of tbe trial court denying an application for change of venue unless it is made clearly to appear that there has been such an abuse of discretion as to amount to a practical denial of justice. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971.

Tbe trial court did not err in overruling defendant’s application for a change of venue.

Defendant next contends that the court erred in failing to instruct the jury on circumstantial evidence.

The defendant was sworn and, testifying for himself, admitted the homicide and sought to justify the same on the ground of self-defense. In such a case, no instruction on circumstantial evidence is necessary.

Defendant next contends that the court erred in overruling his motion to exclude J. H. Lawson, Assistant Attorney General, from taking any part in the prosecution of the case.

This court has uniformly held that the Attorney General cannot supersede the county attorney in the prosecution of criminal cases, except upon the request of the Governor or one branch of the Legislature. State ex rel. Haskell, Governor, v. Huston, Judge, et al., 21 Okla. 793, 97 Pac. 982; Dupree v. State, 14 Okla. Cr. 369, 171 Pac. 489.

In the case at bar the Assistant Attorney' General made no effort to supersede the county attorney, but appeared upon the request of the county attorney to aid in the prosecution of such case, the county attorney at all times retaining charge of and conducting such trial. In such case the Assistant Attorney General is in the same position as private counsel. It was within the discretion of the trial court to permit him to appear and assist in the prosecution under the facts as disclosed by this record.

Defendant earnestly contends that the punishment is excessive.

It appears from the record that the father and brother killed by defendant had been for a long time engaged in the unlawful manufacture and sale of intoxicating liquor; that defendant’s father had been drunk and intimate with other women and abusive to the defendant’s mother; that the mother had sent for defendant to come and take her away from her husband’s home because she was afraid of the husband; and that when defendant went after his mother the homicide was committed as the result of a family row. While the evidence establishes the guilt of the defendant as found by the jury, the circumstances surrounding the commission of the crime are such that a reduction of the punishment appears to be justified.

A careful consideration of the facts in the case convinces the court that justice will be done both the state and the defendant by reducing- the punishment from 18 to 10 years in the state penitentiary.

For the reasons stated, the judgment is modified and the punishment reduced from 18 to 10 years in the state penitentiary, and, as modified, the same is affirmed.

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


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    CARL STANLEY v. STATE.
    No. A-7199.
    Opinion Filed Jan. 17, 1931.
    Rehearing Denied March 14, 1931.
    (296 Pac. 504.)

      Darnefl & LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant, Carl Stanley, hereinafter referred to as the defendant, was jointly informed against with Jim Smith and Ray Phillips, charged with the crime of robbery of one John S. Strong, by means of a dangerous weapon, was tried separately, convicted, and sentenced to serve a term in the penitentiary of five years. Record was perfected, and the case appealed to this court.

The record in this case is too voluminous to be set out in detail. The testimony of the state, in substance, is as follows: On or about the 1st day of November, 1927, the defendant herein, Jim ¡Smith, and Ray Phillips, appeared in the town where John Strong resided and induced Strong to enter a poker game; after getting a large amount of Strong’s money in the game, the testimony shows the defendant in this case shoved a large knife 'against the prosecuting witness, while his codefendants took the money and went away with it.

The defendant for defense says he and Strong entered into a conspiracy to defraud the other two’ defendants, Jim Smith and Ray Phillips, by getting them into the poker game, and Strong was to give signals so the defendant would win the money; it is charged that the defendant and his associates by threats, and by drawing a knife on the prosecuting witness, secured about $6,100 from the prosecuting witness.

The testimony on behalf of the state shows that Jim Smith and Ray Phillips and the defendant in this case went to the town where John S. Strong and his brother lived for the purpose of getting them into a poker game and then faking them out of the money. The defense testimony denies the defendant had anything to do with the taking of this money, but, on the other hand, claims he was to assist the witness John S. Strong to beat the other parties out of their money.

The testimony is conflicting. The jury found the defendant guilty. Where there is a conflict in the testimony, this court will not attempt to decide that question, but will leave it to the province of the jury.

The defendant has filed several errors alleged to have ¡been committed by the court in the trial of his case. The first contention argued by the defendant is that the information is not sufficient to charge that the money was taken from the possession of the prosecuting witness. An examination of the information shows that the allegation in the information is that the money was taken from the person and immediate presence of the prosecuting witness John ¡5. Strong, and that it was forcibly taken. This allegation is sufficient to advise the defendant of the charge against him. This court has repeatedly held that it is not ■necessary in charging an offense to follow the exact language of the statute; that words of an equivalent meaning are all that are necessary to be used. The information is sufficient to charge an offense of robbery in the manner and form as alleged in the informat.on.

The defendant next complains that the court erred in refusing to give the following requested instruction:

“If you find, and 'believe from the evidence that Carl Stanley, either alone or by the aid of Jim Smith or Ray Phillips, won said $6,100 in a poker game, then it will be your duty to' acquit the defendant.”

An examination of the instructions given by the court shows this instruction is fully covered by the instructions of the court, and the refusal to give this instruction was not error possessing sufficient merit to warrant a reversal.

The defendant next contends the court erred in refusing to give instruction No. 3, requested by the defendant. It is not deemed necessary to set out instruction No. 3 in this opinion; we hold this instruction was properly refused. This court has repeatedly held, where the instructions of the court as a whole sufficiently cover the law as applied to the facts in the case, it is not error to refuse to give a requested instruction even though such an instruction correctly states the law. Colglazier v. State, 23 Okla. Cr. 23, 212 Pac. 332; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Sherman v. State, 20 Okla. Cr. 306, 202 Pac. 521.

The defendant next contends that the court erred in not giving counsel for the defendant proper latitude in the cross-examination of the prosecuting witness, John S. Strong. The accused, on cross-examination of the prosecuting witness, has the right to show the malice and ill feeling of the prosecuting witness toward him, or may propound questions to the prosecuting witness for the purpose of impeaching or contradicting the witness. An examination of the questions propounded to' the witness on cross-examination by the defendant fails to show that the court prevented the defendant from cross-examining the witness on any question material to the rights of the defendant. The record fails to show that the defendant was prejudiced by reason of the court’s action in refusing to allow the prosecuting witness to answer questions propounded to him by the defendant on cross-examination. An examination of the record shows the ueftndant did not offer to show what the answer of the witness would have been, had he been permitted to' answer the question propounded. Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021; Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726.

It is further argued by the defendant that the trial court erred in not granting him a new trial because of newly discovered evidence which tended to' show that the witnesses John Strong and John Grossman, who testified in rebuttal for the state, and in contradiction to the testimony of Floyd Woodward, given in chief in behalf of the defendant, were shown to- have committed perjury. The granting or refusing a new trial is within the sound discretion of the trial court, and, unless the record shows an abuse of this discretion, this court will not disturb the judgment. The court holds in this case that the court did not abuse its discretion, and the motion for a new trial was properly overruled.

There are other errors assigned by the defendant, but it is not deemed necessary to discuss them. It is only necessary to say that they do not possess sufficient merit to warrant a reversal of the ease. After a careful examination of the record we hold the evidence is sufficient to sustain a conviction; that the court properly instructed the jury as to the law; the defendant was accorded a fair and impartial trial.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    E. S. (CHOC) HEMBREE v. STATE.
    No. A-7955.
    Opinion Filed Feb. 14, 1931.
    Rehearing Denied March 14, 1931.
    Application for Leave to File Second Petition for Rehearing Denied March 21, 1931.
    (296 Pac. 502.)
    Mathers & Mathers, 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 district court of Stephens county on a charge of rape in the first degree and his punishment fixed at death. Defendant was jointly charged with his brother, A. T. Hembree. A severance was taken and the state elected to try this defendant first. The offense was charged to have been committed on March 9, 1930. Judgment in this case was entered July 1, the date of execution was fixed at September 12. The appeal was lodged in this court on September 11, and an order made staying the execution pending the appeal. Extensions of time to file brief were entered from time to time, but no brief has been filed, nor was there any appearance for oral argument at the time the case was submitted. Notwithstanding the failure to brief, we have read the record with care to ascertain if the formalities of law have been observed and if there has been any substantial error which prevented defendant from having a fair trial. The record discloses that at the time charged, about 9 p. m., a young lady school teacher was out riding in an automobile with a young man. They were in the car on the roadside near the small town of Loco' when defendant and his co-defendant came up. This defendant forced the young lady and her escort to get in the car with them. After driving some distance, they left the highway on a byroad, and soon this defendant with a pistol forced the young lady to' leave the car with him and he then criminally assaulted her. He detained her some considerable time, during which he assaulted her three times. He then had his codefendant assault her, and attempted to have the young man assault her; when he did not do so, defendant shot at him with a pistol, barely missing him and severely wounding the young woman. Both the victim and her escort positively identified defendant and his codefendant. In addition there is some extremely strong circumstantial evidence. The defense is alibi. We have no' doubt of the guilt of defendant of the crime charged. There is no substantial error, and we are satisfied that defendant had a fair trial. Under the record defendant is lower than the brute; he is entirely outside the pale of humanity and richly deserves the death penalty.

The case is affirmed.

The original time for the execution having passed owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Stephens county be carried out by electrocution of defendant on April 17, 1931.

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


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    BERT SHARP v. STATE.
    No. A-7752.
    Opinion Filed Jan. 24, 1931.
    Rehearing Denied March 14, 1931.
    (296 Pac. 502.)
    C. H. Baskin, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Hughes county, Okla., of the crime of assault and battery on the person of Roxie Williams, and was sentenced to pay a fine of flOO and costs, and confinement in the county jail for a period of 30 days, from which judgment the defendant has appealed to this court.

The defendant’s appeal was filed in this court on March 7, 1930. No brief has been filed on behalf of the defendant, and no- reason is shown why a brief has not been filed. No request has been made for oral argument. Where the record shows no brief has been filed for the defendant and no appearance made for oral argument, the court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors.

The judgment is affirmed.


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    W. E. STEWART v. STATE.
    No. A-7693.
    Opinion Filed March 14, 1931.
    (296 Pac. 999.)
    H. A. Johnson, 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 Noble county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 ■: and tO' be imprisoned in the county jail for 30 days.

The testimony in behalf of the state is in substance as follows: P. H. Yeager, a deupty sheriff, together with other parties, went to the home of the defendant and searched his premises and found no intoxicating liquor on the premises. They claimed they found a fruit jar in the sink that smelled like whisky. They went up the alley a short distance from the defendant’s premises, and in a paint box found a half gallon of whisky. Neither of the officers knew to whom the whisky belonged, and testified that they did not see the defendant in possession of it. The only circumstance tending to connect the defendant with the whisky is that the tracks left defendant’s place and went to an alley in the block. Prom the testimony it is shown that there are several houses in the block, and that there were tracks coming and going from the alley in different directions. There is no testimony whatever connecting the defendant with the paint box in the alley. At the close of the testimony, the defendant demurred to the same, and requested the court to return a verdict of not guilty, which demurrer was overruled and the defendant excepted.

Several errors have been assigned by the defendant as to why this case should be reversed. The only one that it is necessary to consider is that the court erred in overruling his motion for a new trial. The motion for a new trial contained the ground that the verdict was contrary to the evidence. The court erred in overruling the demurrer of the defendant to the evidence. There is no competent testimony to show the guilt of the defendant.

The case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


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    TOM HAYES v. STATE.
    No. A-7921.
    Opinion Filed March 14, 1931.
    (296 Pac. 988.)

      John W. Tillman and Fred A. Tillman, 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 district court of Osage county of manslaughter in the first degree, and was «sentenced to- serve- a term of 10 years in the state penitentiary.

A motion to dismiss the appeal has been filed, setting out that subsequent to the judgment in this case defendant pleaded guilty in the United States District Court for the Northern District of Oklahoma on a charge of transporting whisky, and was sentenced by that court to serve a term of three years in the federal penitentiary at Leavenworth, Kan., and that he is now incarcerated in said penitentiary. The motion is supported by affidavits and copies of the federal records.

It has been many times held by this court that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case.

It being undisputed that defendant is confined in a federal penitentiary beyond the jurisdiction of this court and where he could not be made to respond to any judgment or order, the appeal is dismissed.

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