text:
    WOODARD HARDIN v. STATE.
    No. A-4404.
    Opinion Filed Oct. 20, 1924.
    (229 Pac. 654.)
    (Syllabus.)
    Appeal and Error — Denial to Pauper Defendant of Necessary Transcript Without Cost Held Abuse of Discretion. Where, in an application to appeal as a poor person, the trial court finds that as a matter of fact the defendant is a pauper and that there were 21 witnesses examined in the trial for the state and 11 witnesses for the defendant, and the uncontroverted showing is to the effect that couns.el for the defendant could not make a statement of the evidence from memory, and that no adequate and accurate “bill of exceptions” could be had without a transcript of the evidence adduced at the trial, together with all the rulings of the trial court made during the progress thereof, it is a manifest abuse of judicial discretion for the trial court to deny to the. defendant a transcript of the proceedings of the trial without cost to him.
    Appeal from District Court, Atoka County; J. H. Line-baug'b, Judge.
    Woodard Hardin was convicted of the larceny of live stock, and he appeals.
    Reversed and remanded.
    This is an appeal from the judgment of conviction in the district court of Atoka county, Okla. The defendant was prosecuted upon a charge of larceny of one pale red steer. The case consumed a greater part of three days. The jury returned a verdict of guilty and assessed the defendant’s punishment at five years in the state penitentiary.
    The defendant filed a motion for a new trial, alleging 26 errors. The court overruled the motion for a new trial on the 13th of Januarry, 1922, and pronounced judgment against the defendant and fixed his appeal bond at $2,500. He gave the defendant 60 days in which to prepare and serve a case-made. The judgment of conviction appears at page 16 of the case-made. Notices of appeal were served upon the county attorney and the court clerk.

      The plaintiff in error filed his affidavit to be permitted to appeal as a poor person, and showing that to appeal it was necessary that a transcript of the evidence be had, and showing that the court reporter estimated the transcript would cost from $100 to $120. The plaintiff in error asked that an order be made requiring the court reporter to furn-iih him a transcript of the proceedings at the trial. On the 14th of March, 1922, the plaintiff in error filed an application for an extension of time to serve a case-made, and on the same day the court made an order extending the time 60 days in addition to the time allowed. On the 6th day of May, 1922, the plaintiff in error made another application for an extension of time to serve a case-made, and on the same day the court made an order giving an additional 30 days’ extension of time to serve case-made. On the 10th day of June, 1922, the defendant filed an additional affidavit to appeal in forma pauperis, showing he had no property or money, and that 21 witnesses testified on behalf of the state, and that the evidence was voluminous, and that 11 witnesses testified on behalf of the defendant, and that their evidence was voluminous.
    The application to appeal as a poor person was supported by the affidavit of J. G. Ralls, who represented the plaintiff in error in the trial of the case. This affidavit shows that the state used 21 witnesses and the defendant 11, and that the evidence was voluminous, and there were many objections and exceptions on the trial of the ease. It further shows the introduction of testimony covered practically two days. It further shows there were many remarks made by the trial judge during the trial of the case to which exceptions were taken, and shows that he could not from memory make a statement of the testimony and the objections and exceptions and rulings of the court and the remarks of the court. The affidavit further shows that affiant had never been paid anything by the defendant for representing him, and that the defendant had no property ont of which to secure the payment of an attorney fee.
    The plaintiff in error, on the 10th day of June, filed a supplemental affidavit showing that he was still unable to pay, etc., and filed in support of the application the affidavit of his father, J. M. Hardin. The father’s affidavit shows that the - family had no money or property out of which they could get money, and explains to an extent why the plaintiff in error could not get money. It shows that his presence was required to take care of a crippled brother that was partially paralyzed and unable to walk. It shows that the father endeavored to secure funds to pay for the transcript and that he had not been able to do so.
    On the 10th day of June the court denied the application of the plaintiff in error and made and entered the following order:
    “Now, on this the 10th day of June, 1922, came on to be heard the application of the defendant, Woodard Hardin, for an order requiring the court reporter that reported the trial of this cause to furnish him or his attorney, or file with the clerk of this court, a transcript of the evidence and proceedings had at the trial of this cause, without pay on the part of the said defendant, and at the expense of the county.
    “And the court having seen and heard said motion, finds that the defendant, Woodard Hardin, is a poor person and has no money and no property with which to pay any part of the transcript of said proceedings, and the court further finds that in the trial of said cause there were examined 21 witnesses for the prosecution and 11 witnesses for the defendant, and that the probable cost of a transcript of the said evidence^ and the proceedings at the trial is $90, and that an estimate has been made by T. J. Kim, the court reporter that reported the trial of said cause; that it would cost from $90 to $110 to furnish such transcript of the evidence; and thaf said court reporter refuses to furnish a transcript of said evidence unless the said defendant pay to him at least $90.
    “And the court further finds that the defendant has no relatives or friends that has any property or money that are willing to furnish the defendant with any part of said amount of money, and that by reason of the financial condition of the said defendant he cannot furnish or pay any part of the cost of such transcript.
    “The court further finds that the funds of Atoka county, Okla., out of which the cost of such a transcript would have to be paid, have been completely exhausted, and there is no money out of which to pay any part of said transcript.
    “It is therefore ordered by the court that the application of the defendant, Woodard Hardin, for an order requiring the said court reporter, T. J. E3m, to furnish a transcript of the evidence and proceedings at the trial of the cause without cost to the defendant, be and the same is hereby denied. ’ ’
    Assignments of Error.
    First. The court erred in overruling the application of the plaintiff in error for a transcript of the testimony, statements and objections and rulings of the court and exceptions thereto.
    Second. The court erred in not granting the application of the plaintiff in error for a transcript of the evidence, etc.
    Third. The court erred in overruling the motion for a new trial.
    J. G. Ralls, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating facts as above). This appeal is by partial ease-made. The proceedings, with the exception of the transcript of the evidence and rulings of the trial court on the admission and rejection of evidence and the alleged remarks of the trial judge during the progress of the trial, are included in the partial case-made.

But one question appears to be presented by this appeal, to wit: Was it an abuse of discretion on the part of the trial judge, under the circumstances disclosed by the foregoing statement, to deny to defendant without cost to him a transcript of the evidence and proceedings of the trial proper?

Irrespective of whether or not the court funds of the county were exhausted at the time the order was made denying to defendant such transcript, we think, under the showing here made and the finding of the trial court, that it was a manifest abuse of judicial ¡discretion to refuse to make the requested order. In no other way could defendant adequately present for review the numerous exceptions reserved by him during the progress of the trial. That the county was not in a position, at that time, to reimburse the court reporter for transcribing his shorthand notes, we think was not a sufficient reason for refusing the order. The court reporter is an employee of the state and as such receives a salary of $1,800 per annum in addition to the perquisites arising from work of this character. It was more important that this defendant have his trial properly reviewed by this court than that the court reporter be immediately compensated.

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338, this court held:

“In a criminal • prosecution, where the defendant has been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.
"On appeal by transcript from a conviction for murder, it appearing from the record that the plaintiff in error was denied his constitutional and statutory right to perfect an appeal by case-made as a poor person, by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings, and the testimony taken upon the trial, the judgment is reversed and a new trial awarded. ’ ’

In the body of the opinion it is said:

"In the case of Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823, it was held that where a convicted defendant desires to appeal, upon the making of a proper showing to the trial court that he is unable to pay the stenographer for a transcript of the testimony, or the clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.”

In delivering the opinion of the court, Judge Furman said:

"Appellant was tried and convicted of manslaughter in the first degree, and his punishment was assessed at fifteen years’ imprisonment in. the penitentiary. Appellant gave notice of appeal, and moved the court to direct that the case-made and record should be prepared without expense to him upon the ground that he was without friends and money and was unable to pay the stenographer for extending his notes and to pay the clerk of the court for making up the record. The fact that appellant was a pauper was not contested by the state. But the motion was denied by the court. In this we think there was error. * * * Stenographers are paid by the state $100 per month .for their services. They are also allowed to charge liberal fees for extending their notes where the parties desiring such extension are able to pay for the same. But, when a defendant is unable to pay for extending the notes of the stenographer, he is as much entitled to have this done without cost to him as he is to have the services of the sheriff in summoning witnesses or any other court officer in the performance of his. duty in such eases. It is therefore the right of a defendant if he is unable to pay for the same to have the stenographer’s notes extended without cost, and it is the duty of the trial court to make an order to this effect, and to see that it is obeyed. As this was not done in the case at bar, there is no ease-made in the record, and appellant has been denied his constitutional right to have his case reviewed by this court upon the • facts. Whether he is guilty or innocent he has this right, and he cannot lawfully be deprived of it.”

And again the following:

“The rule announced by this court in the Jeffries Case should by this time be familiar to all who are concerned with the administration of the criminal law. ’ In the case of Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846, it is held that:
“ ‘Where a defendant is able to employ counsel to represent him, and the trial court refused to enter an order requiring the testimony to be extended without expense to the defendant, such refusal will not constitute ground for reversal, unless it affirmatively appears from the record that the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, .and that thereby the trial court had abused its discretion. ’
“In the case at bar the trial court, in denying the motion, ‘finds that the allegations of poverty alleged in said motion are true, and that the same are not controverted by the plaintiff; but the court further finds there is no merit in defendant’s contemplated appeal.’
“Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had npon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its complete protection. ’ ’

In the case at bar the trial court found that the defendant was a pauper; that there were 21 witnesses examined in the trial for the state and 11 for the defendant; that the probable cost of transcribing the evidence would be from $90 to $110; and that the court reporter refused to transcribe the evidence unless paid by the defendant the sum of at least $90.

It also affirmatively appears from the record that counsel for the defendant could not make a statement of the evidence from memory. In other words, we think it clearly appears that no adequate and accurate “bill of exceptions” necessary for a proper review of the trial could have been had without a transcript of the evidence adduced at the trial, together with all the rulings of the trial court made during the progress thereof.

For such reason we think that there is here shown a clear and manifest abu.se of judicial discretion in not making an order to the court reporter to transcribe these proceedings without cost to this defendant, and for such reason the judgment is reversed, and the cause remanded for another trial.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    FRANK JEROME v. STATE.
    No. A-4386.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 527.)
    (Syllabus.)
    1. Intoxicating Liquors — Information for Unlawful Possession of Fermented Liquor Held Fatally Defective. An information for unlawful possession of fermented liquors, alleged to be a preparation or compound containing as much as one-half of 1 per cent, of alcohol, measured by volume, and not a preparation compounded by any licensed pharmacist, is fatally defective, which omits to allege that the same is capable of being used as a beverage.
    2. Indictment and Information — Necessary Definiteness of Allegations as to Offense. The allegations in an information should be definite, direct and certain as to the offense intended to be charged.
    3. Same — Information Demurrable for Contradictory Allegations. Since the offense must be proved in substance as charged, an information containing contradictory and repugnant allegations is demurrable.
    Appeal from County Court, Noble County; E. W. Jones, Judge.
    Frank Jerome was convicted of the unlawful possession of fermented liquors, and he appeals.
    Reversed and remanded, with directions.
    D. H. Hunnicutt, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The amended information in this case charges that the defendant, Prank Jerome—

“on or about the 17th day of February, 1922, did have in his possession certain fermented liquors, to wit, about 100 gallons of a preparation or compound, commonly called ‘mash,’ the same containing then and there more than one-half of 1 per cent, of alcohol, measured by volume, and the same not being a preparation compounded by a licensed pharmacist, with the intent on the part of him, the said Frank Jerome, to manufacture and make therefrom whisky, contrary to,” etc.

Upon his trial, the jury returned a verdict finding him guilty, and fixing his punishment at confinement in the county jail for 100 days and a fine of $300. He has appealed from the judgment rendered upon the verdict.

It appears from the record that the original information charged that the defendant, Frank Jerome, did have in his possession about 100 gallons of intoxicating liquor, containing more than one-half of one'per cent., measured by volume, of alcohol with the unlawful intent to sell the same. When the case was. called for trial, the defendant interposed a de.murrer thereto, which was sustained and leave granted to file an amended information, which was immediately filed. To the amended information the defendant interposed a demurrer on the grounds that it does not state facts sufficient to constitute a public offense; that the act charged as the offense is not clearly and distinctly set forth in such a manner to enable a person of common understanding to know what is intended; that the act charged as the offense is not clearly and distinctly set forth with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case. The demurrer was overruled and exception allowed.

The overruling of the demurrer is the first error assigned. The information was evidently drawn under section 7002, Comp. Stats. 1921, as section 1, c. 42, Session Laws of 1923, 1924, making it unlawful “to manufacture, ferment, or possess, any compound mixture, mash, wort, or wash fit for distillation,” was not in effect when this prosecution was instituted.

The amended information predicated upon said section 7002, should have alleged that said compound or preparation, as alleged, was capable of being used as a beverage. In the absence of this essential allegation, the information is not sufficiently definite, direct, and certain as. to the offense intended to be charged.

It is alleged that he did have in his possession certain fermented liquors, same being “a preparation or compound,” containing more than one-half of 1 per cent, of alcohol; it then alleges a special intent to manufacture and make therefrom whisky. It may be the pleader intended to charge an attempt to manufacture whisky instead of unlawful possession of intoxicating liquor, with intent to violate provisions of the prohibitory liquor law; as it is the allegations are contradictory, and the information is ambiguous, uncertain, and defective in its allegations. It follows that the court erred in overruling the demurrer thereto.

The judgment of conviction is reversed, and the cause remanded, with direction to the court below to sustain the demurrer to the amended information.

MATSON, P. J., and BESSEY, J., concur.


text:
    LEROY WALKER et al. v. STATE.
    No. A-4618.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 527.)
    (Syllabus.)
    Larceny — Two Years in Penitentiary for Larceny of Hog. Meat Held Excessive. In a prosecution for larceny of hog meat, held, punishment of two years imprisonment excessive, and sentence modified to imprisonment for one year and one day.
    Appeal from District Court, MeCurtain County; E. M. Berry, Judge.

      Leroy Walker and another were convicted of grand larceny, and they appeal.
    Modified and affirmed.
    Sprague & Finney, for plaintiffs in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were jointly charged, tried, and convicted of grand larceny, and their punishment fixed at imprisonment in the penitentiary each for the term of two years. They have appealed from the judgment rendered on the verdict.

The errors assigned challenge the sufficiency of the evidence to sustain the verdict. No brief has been filed, and no appearance made on behalf of plaintiffs in error in this court.

The proof on the part of the state, which is undisputed, shows that the defendants on the date alleged did take, steal, and carry away four hams, two middles and one shoulder of the value of about $22, the personal property of one Henry Price. The defendants did not testify.

After a very careful examination of the record, we have failed to find any prejudicial error. However, we are inclined to think that the punishment imposed is too severe, and should be modified by this court. In view of all the facts and circumstances disclosed in the record, we have concluded to reduce the term of imprisonment in the penitentiary of each defendant to one year and one day. As so modified, the judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    WILLIE STANLEY et al. v. STATE.
    No. A-4172.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 657.)
    (Syllabus.)
    1. Jury — Racial Discrimination in Selection of Jurors Held not Shown. There is no sufficient showing that there was any racial discrimination in favor of white persons, within the meaning of the Thirteenth and Fourteenth Amendments to the federal Constitution, in the selection of jurors.
    2. Homicide — When Instruction on Manslaughter in First Degree Proper. Where there is some testimony showing previous mutual hostility between the accused and the deceased, and there is no positive proof as to how the fatal wounds were inflicted or which .of the parties was the aggressor an instruction on manslaughter in the first degree is proper.
    3. Appeal and Error — Harmless Error — Impeaching Witness by Confronting Him with Transcript of Previous Statement. An irregular method of impeaching a witness, by confronting such witness with a transcript of a previous' statement made to the county attorney and taken in shorthand by a stenographer, showing that such statement as a whole was in conflict with the testimony given by the witness then being examined, was not prejudicial under all the circumstances shown.
    4. Trial — Evidence Proper in Chief May Become Proper in Rebuttal. Evidence which might have been introduced in chief may, under some circumstances, become proper rebuttal evidence.
    Appeal from District Court, Oklahoma County; J. I. Pbelps, Judge.
    Willie Stanley and another were convicted of manslaughter in the first degree, and they appeal.
    Affirmed.
    Grant Stanley, for plaintiffs in error.
    The' Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Willie Stanley and Charley Stanley were, by information filed in the district court of Oklahoma county, on June 13, 1921, jointly charged with the murder of Willie Sadler, perpetrated on June 2, 1921. By separate verdicts of the jury, they were each found guilty of manslaughter in the first degree, with the punishment of each fixed at confinement in the penitentiary for a term of five years. From separate judgments on these verdicts, they prosecute this joint appeal.

The appellants, in this opinion referred to as the defendants, were negroes, as was also Willie Sadler, the deceased. The defendants contend that there was a discrimination against negroes by the jury commissioners in selecting the regular panel of jurors, and that there was a like discrimination against negroes in the selecting of a subsequent special venire ordered by the court. All of the jurors who finally qualified were white men.

It required more than 300 pages of the record to record the proceedings in selecting the jury in this case. Ordinarily, the chief aim in selecting a jury is to procure a sufficient number of men who are competent and qualified to try the issues, as distinguished from the exclusion of others who might also be competent. It is not here contended that the jury, as finally selected, was not fair or impartial. The portions of the record examined show that there were a few negroes called on the regular panel and that these, or some of them, were excused for cause or for other reasons; that the special venire subsequently ordered was made up of business men selected at random in Oklahoma City, all of whom were white persons. It would seem that the number of prospective negro jurors summoned on the regular panel at that term of court was disproportionate to the number of white persons, but it does not affirmatively appear that this was due to racial discrimination. It was shown that there are proportionately fewer negro tax payers than white; that the prospective jurors were selected from the names appearing on tbe personal property tax lists, and that jurors are summoned by registered mail; that because negroes are more migratory than white citizens, and because fewer ne-groes’ names appear on the personal tax lists, fewer negroes were summoned. Moreover, negro defendants, as well as other litigants, often prefer white men on juries, and excuse more negroes than whites, peremptorily or for cause.

¥e have not scrutinized the whole of this portion of the record in detail, because it is recorded on onion-skin paper, with such dim and blurred characters as to be almost illegible; but from the examination made and from the briefs filed it appears that there is no sufficient showing that there was any discrimination, within the meaning of the Thirteenth and Fourteenth Amendments to the federal Constitution.

The testimony of the more than 40 witnesses in this case is voluminous, and in many particulars conflicting. The general trend of the more important parts of the testimony on the part of the state is to the effect that the defendants and their father and a brother, Claude Stanley, on the evening of the homicide, drove past "Wright’s store, at the comer of Reno and Lindsay streets, in Oklahoma City, going south, at a little past 5 o’clock, and that later, at a little before sunset, came back into Reno street and sent into the Wright store, where Charley bought a cigar; that the two men then walked up the Missouri, Kansas & Texas Railroad track to the place where the homicide was shortly after-wards committed.

Eddie Banks, a negro boy living near the' Wright store, says he saw the defendants pass down the Katy tracks and heard them talking to Willie Sadler; that he saw them begin to fight and knock Sadler 'off of the railroad track, out of sight. Martin Banks, a 10 year old negro boy, corroborated the story of his brother Eddie. Adolph Wyatt’s testimony was to the same effect. A. C. Jackson saw a portion of the assault and saw the injured man stumble and run from the place until he fell into a wire fence, where the rescuers found him mortally wounded, stabbed in four places. Mrs. A. C. Jackson and a number of other witnesses further corroborated the witnesses preceding.

All of the witnesses were some distance away and could see no firearms, knives, or other weapons in the hands of any of the parties. The evening had advanced until it was dusk, or growing dark, and these witnesses could see the movements of the assailants and saw the deceased knocked down and off of the railroad grade, but could not testify to the details of the difficulty. Most of the witnesses saw the defendants at the Wright store and recognized them and saw them go down the tracks to where the fatal difficulty occurred, with their view uninterrupted, except that in some instances the witnesses said that there was a house and some trees which partially obstructed the view.

The defendants both testified that they went home past the Wright store that evening, practically as stated by the witnesses for the state; that they returned there a few minutes later and that Charley went into the store; that they then went up the Katy track, but at a time considerably before sunset, and that they passed the place where the crime was shown to have been committed while it was yet broad daylight, continuing on east and across the Katy bridge, without seeing the deceased, Willie Sadler; that defendant Charley Stanley went on south to his home about three blocks away and defendant Willie Stanley went to the home of a girl friend with whom he had an appointment; that they both arrived at their destinations before dark. The persons at these destinations corroborated the defendants, stating that they arrived before dark and remained at these respective places until long after the tragedy is said to have occurred — at about dark.

There is no showing that the deceased and the defendants had had any prior difficulty or any ill feeling, except that the deceased, Sadler, had been an important witness in a lawsuit between one Cade and the father of the defendants, in which Sadler testified for Cade; that Cade had prevailed in the suit and that the elder Stanley and Cade had had a fist fight that morning and that Cade.was said to have been in the company of the deceased, or only a short distance away from the scene of the fatal tragedy when it occurred.

According to the state’s theory, the crime was murder. The jury found the defendants guilty'of manslaughter in the first degree. The deceased, when found, had no knife or weapon of any kind upon his person, and none was found near the place where the difficulty occurred. Since there was no positive testimony as to how the wounds were inflicted, or as to who began the difficulty resulting in the death of the deceased, the jury took the most favorable view of the situation possible under the state’s evidence, to wit, that the killing was the result of a sudden combat, in the heat of passion, and committed in a cruel manner and by means of a dangerous weapon but without any premeditated design to effect death, and therefore found the defendants guilty of manslaughter, instead of murder.

No impelling motive is disclosed by the evidence, such as ordinarily underlies a premeditated killing. Had this been a planned assassination it is reasonable to assume that a weapon other than a pocket knife or knives would have been used; one more certain to have obtained the desired result. These and other considerations no doubt prompted the jury to return a manslaughter verdict.

Where the evidence is as positive as it is in this ease that these defendants were the parties committing the assault which resulted in the death of the deceased, but the state’s evidence as a whole leaves it speculative, if believed, as to whether the crime is murder or manslaughter, it is just and proper that the trial court submit the issues of both murder and manslaughter to the jury, and the fact that the jury took the most' favorable view of the state’s case, instead of adopting the defendant’s theory or believing in toto their evidence, is not ground for reversal. Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Willis v. State, 25 Okla. Cr. 259, 220 Pac. 72.

The defendants complain of the method pursued by the state and permitted by the court in impeaching the testimony of the defendants. The county attorney, on the night of and the day following the homicide, and while the defendants were under arrest and in the custody of the officers, took from them separate statements; neither defendant being present when the other’s statement was made. The questions and answers so taken were recorded by the county attorney’s shorthand reporter, and on cross-examination of the defendants at- the trial he used the transcribed notes of the stenographer, and asked the defendant witnesses if those questions were asked them and those answers given. The defendants replied that, so far as they could remember, the questions as recorded were practically correct, but that their answers had not been as shown by the transcribed notes of the stenographer.

The stories of the movements of the defendants and their whereabouts at different times that evening, as shown by the transcribed notes of tbe stenographer and as indicated by the testimony of the witnesses on the stand, were in many particulars conflicting. The method employed in impeaching these witnesses was irregular. The witness should have been asked, with regard to each particular question, whether such question had been propounded and whether the answer as read was the answer made by him at the time. But so far as we can see in this case this irregularity did not amount to prejudice.

Defendants also claim that these statements taken down by the stenographer were made through fear and duress; that the county attorney had threatened to send them to the electric chair unless they gave him the statements. That such threats were made was denied by both the county attorney and the stenographer who recorded the conversations. We cannot say as a matter of law that the statements were involuntary, or that their admission for purposes of impeachment was incompetent.

The testimony of the defendants and of other witnesses supporting them indicated that they were not at the place of the homicide when it occurred, thus • casting doubt upon the identity of the assailants. The state, in rebuttal, thereupon introduced one Cannon, who testified that he was 75 years of age; that about the time of the tragedy he saw two negro men running over the Katy tracks, across on the cinder path about 75 feet distant, and saw them run up towards Reno street and south, at right angles to the river; that the taller and darker of the two wore a hat and was in front; the other wore a cap. He was then asked if he could recognize these men in the court room, and he pointed out the defendants and identified them positively; the taller and darker one as Charley, and the other as Willie. His testimony was somewhat shaken on cross-examination by showing, in addition to his advanced age, the distance he was from the persons he identified and the fact that it was growing dark at the time he saw them; and the fact that he had not seen them in the meantime and had no previous acquaintance with them.

The defendants complain that this witness’ name was not indorsed on the information, and that his testimony was evidence in chief, and not rebuttal evidence. But the state is not compelled to put all of its testimony on in chief. The identification in chief was sufficient, at that time. After the defendants had introduced testimony in support of an alibi, it was proper for the state to introduce other witnesses to further identify the assailants and this was proper rebuttal. Section 2687, Comp. Stat. 1921; Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599; Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026.

It is further claimed by the defendants that the witnesses were cross-examined on collateral matters not germane to the issues. The testimony so complained of was remote and of slight significance, but we cannot say that it was purely collateral. Other points urged in defendants’ brief have been duly considered, but are not deemed of sufficient importance to call for a detailed analysis.

All things considered, the judgment of the trial court should be affirmed, and it is so ordered.

MATSON, P. J., and DOYLE, J., concur.


text:
    E. C. PHENIS v. STATE.
    No. 4303.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 652.)
    (Syllabus.)
    False Pretenses — Information—When Necessary to Allege Actual Deception. An information predicated on a false pretense statute of a general nature should allege a false representation, coupled with a reliance upon such representation and an actual deception, unless the statute itself designates the doing of some specific act a false pretense. In such cases a statement that the injured party was actually deceived need not be made.
    Appeal from District Court, Cotton County; A. S. Wells, Judge.
    E. C. Phenis was convicted of obtaining money by false pretense, and he appeals.
    Reversed.
    Amil H. Japp, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, E. C. Phenis, here referred to as the defendant, was in the year 1920 clerk of the school board at Devol, Okla. T. C. Dillon was treasurer and S. W. Gregory president of the board. The defendant was a general contractor by occupation, and owned and operated some trucks. Devol is situated near Red River, adjacent to the Burkburnett oil field in Texas, and about this time there was an unusual influx of people into the town and vicinity of Devol, so that the school facilities became inadequate to care for the pupils who desired to attend school. The board therefore advertised that on a certain day they would receive bids on a contract to transport the children to and from school, but no bids were received. This was near the opening of the school term, and there was not time enough to readvertise. The other members of the board then suggested that Phenis, the clerk, by reason of his ownership of these trucks, could help out in this emergency. It was recognized that Phenis, being a member of the board, could not legally take the contract, and to obviate that difficulty Phenis procured one of his employes, a Mr. King, to take the contract in his name. Kong was to manage the transportation, using the trucks belonging to Phenis, and Phenis and King were to divide the profits in equal shares. King subsequently refused to recognize the claim of Phenis to a share in the profits.

In the course of time Phenis drew a warrant against the school treasurer in the amount of $730.75, payable to the First National Bank of Devol, “for a draft for furniture.” Phenis procured the signature of S. W. Gregory, the president of the board, to the warrant, and Phenis attested it as clerk, and as clerk went to the First National Bank and exchanged the warrant for a cashier’s check in the same amount. This check he then cashed and appropriated the money to his own use — as he claims, to reimburse himself for his interest in the King contract. The president of the board said that to procure his signature to the warrant Phenis claimed that he wanted it to take up a draft for furniture at the bank. The material part of the amended information in this case reads as follows:

“That at and within the county of Cotton and state of Oklahoma on the 29th day of October, 1920, E. C. Phenis, who was then and there the clerk of the school district board of consolidated school district No. 2 of Cotton county, Oklahoma, then and there being, did then and there willfully, unlawfully, feloniously and designedly and with- the intent to cheat and defraud the said consolidated school district No. 2 of Cotton county, state of Oklahoma, of the sum of $730.75, obtain the said sum of $730.75 from school district by means of false and fraudulent representations, statements and pretense, to wit, that said Phenis did then and there draw up a school warrant on said district, a copy of which warrant is hereto attached and marked Exhibit A and made a part hereof, in the sum of $730.75, and by falsely and fraudulently representing to S. W. Gregory, who was. then. and there the president of the school board of said district, that the said warrant was to pay for a draft against said district for furniture for said district at the First National Bank of Devol, Oklahoma, procure and induce the said S. W. Gregory to sign said warrant as the president of said board, and that on November 1, 1920, the said Phenis sold and delivered said warrant to the said bank, he then and there falsely representing to said bank that he, as the clerk of said board, was to purchase with the proceeds of said warrant certain furniture for said district, and thereby did induce said bank to pay him in exchange for said warrant a cashier’s check in the sum of $730.75, to the order of said Phenis, a copy of which check and indorsements thereon being hereto attached, marked Exhibit B and made a part hereof, and that the said Phenis did thereafter convert and sell said check and used the proceeds for his own use and benefit, and did not buy furniture or any other supplies for said district; and that the said warrant so sold to said bank has been paid from the sinking fund of said district, and that all of said statements of E. C. Phenis have been with intent to cheat and defraud said district, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

This prosecution seems to have been based upon section 2146, Compiled Statutes 1921, which reads as follows:

“Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called the ‘confidence game,’ or by means or by use of any false or bogus check or by any other written or printed or .engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary * * * not exceeding seven years.”

An examination of our several penal statutes upon the subject of false pretense discloses that there are at least 27 ways of committing such an offense. The defendant in his brief, and in Ms demurrer to the information in the trial court, says that this information does not sufficiently charge any offense. The information might be considered as stating facts sufficient to sustain a charge of larceny by fraud, but the case was not tried on that theory, and the instructions of the court covered only the crime of false pretense.

Section 2145, Comp. Stat. 1921, is as follows:

"Any person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written mstrument, or obtains from any person any money or property, is pumshable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times-the value of the money or property so obtained, or by both such fine and imprisonment.”

The gist of the offense here was the fraudulent procuring of the signature of the president of the board. The information as drawn would be sufficient under section 2145, supra, except that no allegation appears to the effect that the treasurer believed the false representations were true, and relied upon them as the moving inducement causing him to affix his signature to the warrant.

Ordinarily an information brought under a penal false pretense statute of a general nature should allege a false representation, coupled with actual deception. Suppose the president of the board knew at the time he signed this warrant that it was fraudulent; he would then be an accomplice to the fraud, but the fraud so perpetrated would not be false pretense within the purview of either of the statutes above quoted, or of any other of the several statutes on that subject. The court, in instructing the jury, told them that in order to sustain the charge they must find that "said S. W. Gregory relied upon the said false and fraudulent representations when, he signed the said warrant.” If that'was an essential element of the offense, and if the jury were required to find as a fact that the president of the board was deceived by a false statement made to him, which at the time he believed to be' true, it was necessary to a statement of a- complete offense to allege that fact in the information.

This is not a technical, captious rule, but one founded in reason to avoid the absurdity of prosecuting one for false pretense, where the false statement made was known by all to -be false, and where there was in fact no deception, arid the rule as here stated is not out of harmony with what was said by this court in Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462, relating to a “bogus check.” In-the ease now under consideration the gist of the offense was the procuring of a signature to a written instrument by means of a false pretense, and the usual, established rule of pleading in false pretense cases should apply.

There is some evidence in this record tending to show that the other members of the board, in the first instance, connived with this defendant to violate his official trust. Now, if the president at the time he signed the warrant knew that there was no draft at the bank for furniture, or knew that no bill for furniture of this character existed, or knew that the defendant intended to reimburse himself for money due him on an illegal contract in which all were implicated, the defendant should not be prosecuted for false pretens'e. Proper negative averments should have been made in the information, stating that the treasurer did not know these things, and that he was deceived and acted upon false representations which he believed true.

It has been held by this court and others that, where money is obtained by means of a “false and bogus cheek,” it is not necessary to plead specifically that the person defrauded relied upon the false representations made. Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462; Douglas v. State, 15 Okla. Cr. 648, 179 Pac. 947; Williams v. Ter., 13 Ariz. 27, 108 Pac. 243, 27 L. R. A. (N. S.) 1032. The terms “bogus check” and “confidence game” themselves import deception, without specific averments to that effect, but the allegation that one fraudulently obtained the signature of another to a written instrument carries no such implication.

The relaxation of the general rule concerning the aver-ments as to actual deception should not apply in a ease like this. Section 2146, supra, upon which this prosecution is based, the “bogus check” statute, is an anomaly. Obtaining money by means of a bogus cheek or a confidence game are offenses in a class by themselves, made so by statute; but the offense of procuring a signature to an instrument by fraud must be measured by the established test applying to other false pretenses of like nature, and the information should state facts showing an actual deception as an essential element of the crime. Taylor v. Ter., 2 Okla. Cr. 1, 99 Pac. 628; Fuller v. Ter., 2 Okla. Cr. 86, 99 Pac. 1098; Helsey v. State, 18 Okla. Cr. 98, 193 Pac. 50, 17 A. L. R. 197; State v. Miller, 47 Or. 562, 85 Pac. 81, 6 L. R. A. (N. S.) 365.

We hold, therefore, that where a false pretense is charged, predicated upon facts that bring it within the purview of the general statutes covering that offense, it is still necessary to state that the person to whom the representations are made is actually deceived. There are cases where this is not necessary, where a special statute of itself makes some specific act the crime of false pretense.

The information was defective, because two different offenses were imperfectly stated, and because it does not charge that the persons wronged relied upon the false representations. The demurrer to the information should have been sustained. The judgment is reversed, and the cause remanded, with instructions to the trial court to sustain the demurrer and direct that a new or amended information be filed preliminary to a new trial.

MATSON, P. J., and DOYLE, J., concur.


author: PEE CUEIAM.

text:
    PHIL PLACE et al. v. STATE.
    No. A-4537.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 651.)
    Appeal from County Court, Pawnee County; Charles Verne, Judge.
    Phil Place and another were jointly convicted of unlawfully manufacturing whisky, and each sentenced to serve 30 days in jail, and to pay a fine of $50, and they appeal.
    Appeal dismissed.
    McCollum & McCollum, for plaintiffs in error.
    The Attorney General, for the State.
   PEE CUEIAM.

This is an attempted appeal from a judgment of conviction rendered in the county court of Pawnee county on the 4th day of September, 1922. The plaintiffs in error were charged with the unlawful manufacture of whis-ky, and upon a joint trial each was found guilty, and punishment assessed as above stated.

While the case-made contains no copy of the journal entry of judgment, it appears that the judgment was rendered on the 4th day of September, 1922. The petition in error and case-made were not filed in this court, until the 4th day of January, 1923, 122 days after .the rendition of the judgment. The longest period of time in which an appeal may be lodged in this court from a conviction for a misdemeanor is 120 days after the rendition of the judgment. Section 2808, Compiled Statutes 1921.

The appeal not having been lodged in this court within the time allowed by statute, this court has never acquired jurisdiction to decide the case on its merits. The appeal is dismissed.


author: • BES.SEY, J.

text:
    ELIAS RIDGE v. STATE.
    No. A-5164.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 649.)
    (Syllabus.)
    1. • Infants — Conditions to Warrant Death. Penalty Imposed Against Boy Under 14. In this state, under the general provisions of criminal law and procedure construed in connection with the law relating to juvenile offenders, the death penalty should not be imposed against a boy under the age of 14 years convicted of murder, unless it clearly appears that the juvenile offender .was a person with a sense of responsibility, intelligence, and understanding equal to that of an ordinary person of the age of 16 years.
    2. Same — Death Penalty for Juvenile Convicted of Murder. To warrant the death penalty for a' juvenile offender convicted of murder, the offense must be reprehensible in a superlative degree, coupled with the fact that the perpetrator was a person having an ordinary comprehension of the enormity of the offense and its consequences.
    Appeal from District Court, Mayes County; A. C. Brewster, Judge.
    Elias Ridge was convicted of murder, and he appeals.
    Modified and affirmed.
    See, also, 25 Okla. Cr. 396, 220 Pac. 965.
    W. H. Twine and Charles N. Harmon, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   • BES.SEY, J.

Elias Ridge, a negro boy of juvenile age, was by a verdict of a jury in the district court of Mayes county found guilty of the murder of Mrs. George Adair, and his punishment fixed at death. From this judgment he appeals.

Mrs. Adair was the wife of a prominent and highly respected farmer and ranchman in Mayes county. On the day she lost her life, August 8, 1922, she and her two small children, one a baby in arms, were alone at their ranch home, the husband being some miles distant, where he was operating a threshing machine. This fact was known to Elias Ridge, a negro boy about 14 years of age, who was then living with his brother-in-law, Hardy Smith, in a tenant house near the Adair home. The Ridge boy and Hardy Smith were often employed to do odd jobs in and about the Adair home and were familiar with everything thereabouts. At the noon hour on this day Elias Ridge went into the house where Mrs. Adair was, on the pretext of inquiring about a horse bridle, and there, pursuant to plans previously laid, commenced a brutal assault upon Mrs. Adair, in the course of which she was flogged and bruised with an iron bar and a heavy stick of wood, and was cut and stabbed in a horrible manner about the face, neck, arms, and body; nearly all of her clothing being torn from her body. Her skull was crushed in two places, and several of her bones were broken. Mrs. Adair was a large woman, about 35 years of age and in good health, so that her physical condition enabled her to make a heroic resistance to the assault, covering a period of 15 or 20 minutes, and continuing in different parts of the house, and on the back porch. She finally fell on the ground near the back door unconscious, the upper portion of her nude body covered with cuts, bruises, and blood. Here she was found by neighbors who had heard her screams, but died shortly af-terwards without regaining consciousness. This murder was deliberately planned and cunningly executed, with an apparent intent either to rob or ravish the victim. The boy himself claimed he did it at the request of Hardy Smith for a pecuniary reward, but this claim cannot be reconciled with other portions of the evidence.

There is not the slightest doubt of the guilt of the defendant. No extenuating circumstances appear, excepting only his youth and want of training. The purpose of this appeal is to induce this court to modify the penalty from death to life imprisonment, on the sole ground' that the perpetrator was a boy of immature years and understanding.

Elias Ridge had lived for a time in Illinois and also in Kansas City, and for a year or more just prior to this tragedy had lived with his brother-in-law and half-sister near the Adair home — a migratory negro boy without any permanent place of abode, or restraining home influences. According to the boy’s own statement he was 14 years of age at the time he committed the crime; other witnesses said he would be 14 in December following. Be this as it may, the degree of intelligence and understanding of the boy, and not his exact age, constitutes the main subject for consideration in this appeal, although of course the youth of the offender carries with it a presumption of immature discretion.

This boy’s mentality and capacity to commit crime were twice inquired into by the juvenile court, where he was adjudged a delinquent child who knew right from wrong. At his final trial two physicians, the brother-in-law and several other witnesses, one of whom had employed the boy for a considerable length of time, testified that he was capable of distinguishing right from wrong. The record shows ingenuity in planning the assault, and his attempted escape was so clever that for a time he deceived the officers and neighbors who were searching for the murderer, causing .them to believe that the crime had been committed by another, and helping them to look for the supposed criminal. On the other hand his writing and use of English, as shown by a long-written confession, which he made voluntarily and without being prompted by any person, covering 17 pages of tablet paper, indicate that his education was below the average, and his mind like that of an ordinary child of the third or fourth grade in school. However, from all that appears in the record, it is evident that the boy was rightfully held as being in some degree responsible for his criminal act. It appears also that he had a fair trial in which he was accorded all of his constitutional and statutory rights.

One of the chief objects of punishing criminals is to deter others from committing crime. Punishment for crime is the only method of restraint that has proved effective in this or any other age. Suppose the Governor of this state, in order to determine whether punishment for crime has a restraining influence, should by proclamation suspend the operation of all criminal laws of this state for a specified 24 hours, and revoke the power of all policemen, sheriffs, and other peace officers for that length of time, the result would be a day of murder, rape, robbery, and theft, a general violation of all public and private rights, beyond the power of description.

Law is said to be a fixed rule of action, but in modern times in criminal cases the rigidity of the rule has been relaxed, so that nearly all penal laws provide for a maximum and a minimum punishment, equivalent to a direction to the judge or jury to assess the punishment at any degree of severity between the two extremes, in a manner appropriate to the gravity of the offense and the responsibility of the offender. In addition to that, the law in this state makes it the duty of this court to modify the punishment, wherever it appears from all of the circumstances that the jury abused its discretion by imposing a punishment not contemplated by the law as applied to that particular case.

If one seduces the wife of another, and the husband kills the seducer, that, under, the law, is murder; where one covets the wife of another, and in order to procure her kills her husband, that also is murder. But one is much more reprehensible than the other, and to punish both equally would be unjust. So it would seem that a 14 year old boy has less discretion and sense of responsibility than the man who killed another to procure his wife — two different degrees of culpability that should be punished differently. Boys of immature years are not usually endowed with that degree of discretion and sense of responsibility that is possessed by their elders.

In this state children between the ages of 7 and 16 years are presumed to be incapable of committing crime, but that presumption may be overcome by a showing made in a juvenile court that the child has sufficient understanding and intelligence to know right from wrong. The presumption at the age of 7 years would be almost conclusive, but the force of the presumption would decrease from year to year up to 16, where it entirely disappears.

We are not unmindful that the rights of society as a whole are paramount to the rights of the individual criminal who preys upon it, whether he be a boy or a person of mature years. The records of this court abound with instances where boys of high school age steal automobiles, rob banks, stores, and filling stations, and persons on the highways, and sometimes commit murder in executing these robberies. In this connection, the rights of women like Mrs. Adair and the rights of husbands and children like these must be considered. Where one takes the life of another against whom he has no grievance, for the purpose of robbery, rape, or personal gain, this constitutes one of the most reprehensible classes of homicide known to the law — in most instances justifying the death penalty.

If this offender had been'a person of mature years and understanding under circumstances like these, this court would not hesitate for a moment in affirming a death penalty. But here our juvenile statutes and - the policy of the law towards juvenile offenders are involved. The state has always refused to hold children responsible for their civil contracts, and since the enactment of our juvenile statutes their criminal responsibility has been modified. It is fair to assume that since the Legislature has given to courts and juries a wide discretion between the maximum and the minimum punishment, and in addition to that has given to this court the power and duty of modifying punishments, it was the intention of the Legislature that the death penalty should be inflicted only where the offender was both culpable and responsible in the superlative degree. This crime was reprehensible in the highest degree, but the record shows that the perpetrator, by reason of his youth, his lack of home training and unfavorable environment, probably had no adequate comprehension of the enormity of the offense or of his criminal responsibility.

In all the history of our law there are few instances where young children have been put to death as a punishment for murder, and none anywhere, so far a_s we know, within the last 50 years. It is a hard problem to solve, but, after a most careful consideration in all of its aspects, we think that, as a matter of law, stripped of all sentimental considerations, the jury abused its discretion in assessing the death penalty, and that the sentence and judgment should be modified to life imprisonment, and that-the penalty as so modified should be exacted to the limit. The record shows that this boy is possessed of only ordinary intelligence, coupled with degenerate criminal tendencies, making it unsafe to ever again give him his liberty. For the safety of society he should be kept in the penitentiary at hard labor.

It is ordered that the punishment of Elias Ridge be reduced to imprisonment in the penitentiary for and during his natural life, and the judgment as so modified is affirmed.

MATSON, P. J., and DOYLE, J., concur.


author: MATSON, P. J.

text:
    JEROME CHAMBERS v. STATE.
    No. A-4426.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 646.)
    (Syllabus.)
    Trial — New Trial — Right to Fair and Impartial Trial — Court to Rule Without Unfair Comment on Objections and Charge Law of Case — Judge’s Comment in Ruling Indicating Belief in Defendant’s Guilt Warranting New Trial. The policy of the law is that one accused of crime shall have a fair and impartial trial. The duty of the trial judge is to rule without unfair comment on the objections presented, and to state the law of the case in the charge to the jury. Where in the ■ trial of a case, closely contested on the facts, the trial judge on ruling to objections urged by defendant’s counsel, makes certain comments indicating his belief that defendant is guilty, and that the defense interposed is without merit, such action will be deemed prejudicial to the substantial rights of the defendant, and a new trial will be ordered.
    Appeal from District Court, Seminole County; John L. Coffman, Judge.
    Jerome Chambers was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded.
    See, also, 20 Okla. Cr. 64, 201 Pac. 393.
    This is an appeal from a judgment of conviction of the district court of Seminole county, wherein the plaintiff in error (hereinafter referred to as defendant) was jointly charged with one Will Ollar of the crime of murder alleged to have been committed in said county on the 15th day of September, 1921, by beating one A. J. Horton over the head with a pistol. On a separate trial the defendant Chambers was found guilty of manslaughter in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a period of 10 years. Judgment was pronounced on the 20th day of February, 1922, and the appeal lodged in this court on the 15th day of August, 1922.
    Both the defendant and deceased were farmers, and lived not far from the town of Sasakwa in Seminole county. The killing arose over the right of the deceased to use a private roadway and to go through a certain gate that separated the premises of the defendant from certain premises owned by the father of his codefendant. There is considerable dispute in the evidence as to the right of the deceased to pass along this roadway and through this gate. It seems to be undisputed that Ollar had given the defendant permission to erect a gate at the place where this difficulty occurred, and to use the roadway as an exit from his premises. This roadway was built about six months before the difficulty occurred, and it appears that the deceased had also been using it as an exit from his premises, which were located about a half mile southeast of where this defendant lived. Ollar claims, however, that he did not give the deceased permission to use this roadway or to go through this gate as an exit from his premises, and that if the deceased had been using it he had no knowledge of it.
    It appears that on the day of the difficulty at about noon the deceased, who was a road overseer, was working on a bridge on a public highway about three-quarters of a mile southwest of where the difficulty occurred; that the defendant came along the road at that place, and that a dispute arose between the defendant and the deceased as to the use of this particular roadway and gate, and that the defendant told the deceased that Ollar was going to nail the gate up, and that the deceased then said that if he did he would cut it down.
    The difficulty which resulted in the death of Horton occurred about 5:30 or 6 o’clock that evening when Horton was returning home from his bridgework. Horton was accompanied by another neighbor by the name of Allen, and went by Allen’s house on his way home. Allen’s house was located about 300 yards southwest of the gate where the difficulty occurred, and in going from the bridge to the gate the deceased, who was driving a team hitched to an ordinary farm wagon, passed through Allen’s premises. However, Allen did not get out, but accompanied the deceased to the scene of the difficulty. Allen admitted that he had heard of the previous dispute between the defendant and the deceased about the use of the gate, and had heard that the deceased was going to cut the gate down if it was nailed up, and admitted that he went along with the deceased to see “that it was well done.” Allen testified in substance as follows :
    “That he and the deceased drove up in a wagon, and that Will Ollar, a defendant, had the gate nailed up and had piled some brush in front of it; that when they drove up the deceased spoke to the boys and told them that he was on his way home; that defendant began cursing the deceased, telling him that he knew what had been told him, that he (Allen) jumped out of the wagon and tried to pacify the defendant, whereupon Will Ollar told him to shut his damned mouth, that it was- not any of his business; that deceased was sitting on the spring seat in the wagon with the lines in his hand; and that after the defendant had continued to abuse the deceased, the deceased told the defendant that if he would take his gun off he would fight him; that defendant immed-
      lately made two jumps and jumped into the wagon behind the deceased, jerked out his gun and hit the deceased in the head and knocked him off the seat, and that deceased fell down between the seat and the dashboard; that in so falling the deceased dropped the lines and the team became frightened and started to run; that they ran into a tree and broke the' wagon tongue; that the defendant hit the deceased a couple of licks on the head with the pistol while the deceased was down between the seat and the dashboard; that the defendant jumped out of the wagon about the time it struck the tree; and that the deceased got out of the wagon and later took the wagon and team home.
    “The deceased’s daughter and niece claim to have been near the scene of the homicide and heard loud talking and claim to have arrived on the scene of the homicide in time to see the defendant strike the deceased with the gun.
    “Will Ollar, a codefendant, says that when this defendant struck deceased with the gun deceased was stooping to pick up an axe which was lying in the wagon, and that the witness Allen had directed deceased to hit the defendant Chambers with the axe. The testimony of the defendant Chambers is substantially the same as that of Ollar. They both testified that the defendant only hit the deceased once with the pistol, and that the blow did not knock the deceased down, but that the deceased fell when the tongue of the wagon struck the tree and hit his head against the side of the wagon. Allen denied that he directed the deceased to strike the defendant with the axe, and the deceased’s daughter and niece testified that they saw no motion on the part of the deceased, indicating that he was attempting to get an axe out of the bottom of the wagon, but the niece of the deceased admitted that she heard the defendant say right after he got out of the wagon that ‘Mr. Horton ought not to have done me that way.’ ”
    Pryor & Stokes, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). Numerous errors are assigned covering alleged mistakes in the court’s instructions, the refusal to give instructions and numerous acts, of misconduct on the part of the trial judge during the progress of the trial. To enter into a lengthy discussion of all these separate assignments of error would prolong this opinion to great length. The record is voluminous and the errors complained of are all supported by argument, and the citation of authority in the brief filed in behalf of this defendant. Suffice it to say that after an examination of the entire record this court is convinced that the defendant did not receive that fair and impartial trial that is guaranteed to him by the Constitution and laws of this state. This conclusion is reached not so much from the prejudice preponderating from any single assignment of error, but rather from a consideration of all these assignments collectively. The trial court throughout the trial indicated by remarks made, and rulings on the admission and rejection of evidence, a clear belief, in the presence of the jury, that the defendant was guilty, and on one occasion when the defendant offered to prove by a witness certain facts, which counsel believed to be competent, the court in ruling made the following comment:

"The court refuses to allow the witness to make the statement as indicated by counsel, for the reason it does not matter whether the defendant had or did not have a right to be there; it did not justify him in making an assault on the deceased because the deceased was not trying or in a position to cause any immediate damage to the property of the defendant, and the question as to who should use the gate was a civil question and should have been settled by the civil courts.”

It appears, without dispute, from this evidence that the difficulty arose upon a sudden provocation; that the defendant claimed that he was at the time-in the act'of defending himself from an attempted assault about then to be made upon him by the deceased with an axe. The comment of the court that the deceased was not in a position to cause any immediate damage to the property of the defendant was, under the circumstances of the evidence in this case, equivalent to saying that the defendant did not have the right or privilege to defend himself or his property against any attack or trespass by the deceased at that time. This statement of itself struck the defense a body blow. It was clearly an adverse comment upon the right of the defendant to defend himself and his property at that time, and it invaded the province of the jury to determine the merit of the defense interposed. That the defendant was at a place where he had a right to be on that occasion is undisputed. We think it clear also that there was no premeditated design or thought on the part of the defendant of taking the deceased’s life. The trial court should'not have made this comment. Whatever may have been the private opinion of the trial judge concerning the right of the defendant to defend himself and his property on that occasion, should have been left unsaid. Under the evidence in this case, that was the issue that the jury was called upon to decide. It was not solely a question of law, but a mixed question of law and fact, as there was a clear conflict in the evidence, and the law of self-defense entered into the controversy at the time the unfavorable comment was made.

It appears also from the record that it was the claim of the defendant that the deceased drove approximately a mile out of his way in going home from the bridge on this occasion in order to pass through this gate which he had reason to believe would be nailed up. In this connection the defendant offered to prove by certain witnesses that there was a nearer road just as good that the deceased could have taken in returning home that evening from his work at the bridge had he desired to avoid any difficulty. Two plats were introduced in the evidence, one by the state and one by the defendant. There was considerable dispute as to the correctness of each of these plats, and at the close of the case the defendant requested the court to permit the jury to view the premises. This request was denied. While it is a matter of discretion with the trial court to permit a view of this kind, it appears, under this record in view of the dispute as to the location of these roads and as to whether they were open and fit for travel, that it would have clarified the situation to have permitted the jury to make a view of the premises. We do not undertake to say, however, that this was reversible error. Attention is called to it only for the purpose of indicating the court’s attitude throughout the trial. The court also, over objection by defendant’s counsel, permitted the state, under the guise of introducing .rebuttal evidence, to rehash a large part of the testimony theretofore intro'duced in chief against the defendant. The evidence thus introduced was not strictly rebuttal, but covered a wide field of investigation covered by the same witnesses in chief, and had the effect of giving undue and unfair emphasis to their testimony.

During the progress of the argument by the county attorney, the record discloses he made the following assertion:

“Now we are not trying anybody for assault and battery. That is tried in the justice of the peace court.”

Counsel for defendant objected to the remark, and was met by the following rebuke by the court:

“I think counsel has the right to tell the jury what the defense is. Now gentlemen, I tell you I don’t want any interruption in the argument. If counsel gets out of the record, I will stop him myself.”

Where a defendant is on trial for his life or liberty it is the duty of counsel representing him to take all steps which he thinks proper and necessary to preserve his rights throughout the progress of the trial, for the purpose of making the proper record for review by the appellate court should a conviction follow.

The duty of the trial judge is to rule fairly and impartially without unfair comment on the objections presented, and to state the law of the case in the charge to the jury. The court should never assume to exercise any prerogative of counsel, nor should counsel undertake to supplant the court’s instructions by expounding his personal views as to the law of the ease antagonistic to the views of the court as expressed in the general charge.

Under our system of jurisprudence the trial judge is the exclusive judge of the law. Ample opportunity is given to counsel on each side to present their respective views of the law of the case before the jury is instructed. But after the charge is given to the jury that becomes the controlling law of the case, and as such counsel on both sides as well as the jury are bound by it. Counsel may reserve exceptions to the charge as a whole, or to any paragraph or paragraphs thereof for purposes of review, but counsel has not the right nor prerogative to substitute in argument to the jury his personal views of the law in opposition to the views of the court as expressed in the instructions. In this jurisdiction the jury is the exclusive judge of the facts, but is bound by the law as given' by the court.

In the instant case the..court had instructed on the law of assault and battery as being included within the crime charged. There was some evidence on the part of the defendant. that the blow given by defendant to deceased was not a contributing cause of death; if the jury determined that it was not, the defendant under the court’s instructions could have been convicted of simple assault and battery.

For the county attorney to state to the jury in argument that “we are not trying anybody for assault and battery. That is tried in the justice of the peace court,” was a statement of law directly opposed to the court’s charge, and was properly objected to.

Be that as it may, counsel for the defendant certainly had a right to, in a respectful and orderly manner, make his objection to such argument and preserve his record for review by this court, without any rebuke by the trial judge for having so done.

This court has held that objections to the argument must be made at the time the objectionable matter is stated, that it is too late to make such objections after the argument is closed. Buck v. Terr., 1 Okla. Cr. 517, 98 Pac. 1017.

Such holding presupposes necessarily an interruption of the argument for that purpose. It was immaterial that the trial judge did “not want any interruption in the argument.” It was immaterial that the trial judge declared he would stop counsel, “if he gets out of the record.” The defendant and counsel representing him had certain rights given to him by the statutes of this state and the decisions of this court construing the same, and trial judges in ruling on objections either to evidence or argument should avoid the utterance of any remark that indicates a leaning on his part one way or the other in the trial of a criminal cause.

Throughout this record the rulings and remarks of the trial judge were such as to clearly indicate to the jury his belief in the guilt of the defendant. The case was closely contested on the facts. We cannot say that the errors complained of did not work to the substantial prejudice of this defendant under such circumstances. We opine that to a considerable extent they contributed to his conviction. The judgment is reversed, and cause remanded to the trial court for new trial.

BESSEY and DOYLE, JJ:, concur.


author: PER CURIAM.

text:
    ANDREW PURNELL v. STATE.
    No. A-4535.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 1118.)
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Andrew Purnell was convicted of the offense of manufacturing whisky, and appeals.
    Affirmed.
    J. S. Rhinefort, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal by plaintiff in error from a judgment of conviction rendered in the county court of Comanche county on the 25th day of November, 1922, on a verdict finding the defendant guilty of manufacturing whisky and assessing his punishment -at imprisonment for 30 days in the county jail and to pay a fine of $50. The petition in error with case-made attached was filed in this court on January 2, 1923. The cause was finally submitted on October 6, 1924. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time it was submitted. Rule 9 of this court provides: “When no counsel appears, and no briefs are filed, the court will examine the' pleadings, the instructions of the court and. the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment. ’ ’ After an , examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


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    JACK KENDRICK v. STATE.
    No. A-4706.
    Opinion Filed Oct. 25, 1924.
    (229 Pac. 1118.)
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    Jack Kendrick was convicted of violating the prohibitory liquor laws, and he appeals.
    Remanded, with directions to abate.
    Bridges & Yertrees, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Jack Kendrick, was on the 30th day of January, 1923, by judgment of the county court of Jefferson county, convicted of the offense of unlawful possession of intoxicating liquor, and punishment assessed at a fine of $250 and to serve 90 days in the county jail. From such judgment an appeal was taken to this court, by filing herein on May 26, 1923, petition in error with case-made attached. Since the appeal was taken, suggestion of the death of the plaintiff in error has been made by the counsel of record, and for such reason counsel have filed a verified motion to abate this action, by showing that the plaintiff in error died in the city of Duncan, Okla., on the 10th day of February, 1924. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause remanded to the county court of Jefferson county, with directions to enter its appropriate order to that effect.


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    FRED MOCKABEE v. STATE.
    No. A-4498.
    Opinion Filed Nov. 1, 1924.
    (229 Pac. 1094.)
    (Syllabus.)
    Intoxicating Liquors — Genera) Reputation of Defendant’s Home Incompetent to Prove Unlawful Possession Without Further Evidence that House Public Resort. Upon a trial under an information charging that the defendant did have possession of intoxicating liquors with the intention of violating provisions of the prohibitory law, evidence of the general reputation of his home is incompetent to prove the charge, unless there is some showing made other than the mere reputation of the place that the house is a place of public resort.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Fred Mockabee was convicted of having illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. C. Patton, for plaintiff in error. ’
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Fred Mockabee, plaintiff in error, was on the 24th day of October, 1922, in the county court of Canadian county, found guilty of the illegal possession of certain intoxicating liquor. By the judgment of the court his punishment was fixed at confinement in the county jail for a period of 90 days and to pay a fine of $250.

The information charged that the accused “did then and there willfully and unlawfully have possession of intoxicating liquor, to wit, corn whisky, for the purpose of selling, bartering, and otherwise furnishing the same,” contrary to law. The proof on the part of the state show's that certain peace officers went to the home of the defendant and searched his premises and found one quart of corn whisky sitting in the open on the back porch. They also found a jug of corn whisky buried in a pile of straw and waste on adjoining premises then unoccupied. There was no proof adduced tending to show to whom the jug belonged or who had placed it where it was found.

Plaintiff in error admitted having possession of the quart of whisky found at his home, but says that he had it for his own use, and not for sale or other illegal purpose. He professed to know nothing about the jug found on the adjoining premises. The state made no showing, beyond the mere possession of the quart of whisky, that it was kept for illegal purposes. After the examination of the arresting officer relating to the circumstances of the search and seizure of the liquor, the examination in part was as follows:

“Q. Are you acquainted with the general reputation of the Mockabee home as to being or not being a place where intoxicating liquor could be had for purposes of selling, bartering, and otherwise furnishing, in violation of the law?
“Objection by J. N. Roberson: We object to this as being incompetent, irrelevant, and immaterial. He is charged with possession, and he is questioning the reputation of his place. (Overruled. Exception.)
“A. Yes.
“Q. Well, is that reputation good or bad? A. Bad.”

Other witnesses, without objection, testified to the same effect.

The possession of more than a quart of corn whisky would raise a legal presumption that the accused had it for an illegal purpose. To strengthen this presumption, if indeed the facts proved warranted such presumption, the state sought to show that the general reputation of the place was bad, as being a place where intoxicating liquor was sold. This conviction, then, rsets upon two presumptions: First, the legal presumption that because the accused had a quart of corn whisky he had it for sale; and, second, that he intended to sell this particular whisky because the reputation of his home was that of being a place where whisky could be purchased.

The admission of the defendant that he had this whis-ky, but that he had it for his own personal usé and not for sale, might have overcome the first presumption, but not been sufficient to overcome the two presumptions. The jury might have concluded- that, because the home of accused bore a bad reputation as being a place where whisky was sold, he intended to sell this particular quart. In the case of Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, the court said:

“Upon a trial under an information charging that the defendant did have the possession of intoxicating liquors with the intention of violating provisions of the prohibitory law, evidence of the general reputation of his home or barn is incompetent to prove the charge.”

And in the case of Lunceford v. State, 28 Okla. Cr. 120, 229 Pac. 304, recently decided by this court, it was said:

“Proof, in support of a charge of a specific act of illegal possession of intoxicating liquor, tending to show that the accused has the general reputation of being an illicit vendor of liquor, is inadmissible.”

"Where the charge against the defendant is illegal possession of specific whisky, we can see no distinction between attempting to establish the offense by the general reputation of the person and of the place. Ordinarily, in such a ease, evidence tending to establish either is inadmissible. It would have the same effect to show that the home of the accused bore a bad reputation as it would to show that his personal reputation was bad. If it had been charged that this place was a place of public resort, or that defendant maintained a place where intoxicating liquor was sold, or a place of business conducted as a public nuisance, the rule might be different. Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151, and cases therein cited.

As was said in the Thompson Case, supra, a man should not be condemned on what a few of his unfriendly neighbors (in this case, officers) say of him or of his home. Such evidence is merely hearsay, and its admission was prejudicial. The evidence tending to show intent to sell amounted to no more than conjecture.

The judgment of the trial court is reversed and the cause remanded.

MATSON, P. J., and DOYLE, J., concur.


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    MORRIS HERSH v. STATE.
    No. A-4517.
    Opinion Filed Nov. 1, 1924.
    (229 Pac. 845.)
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Morris Hersh was convicted of murder and he appeals.
    Affirmed.
    De Graffenried & De Graffenried, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, Morris Hersh, was charged with the crime of murder in the district court of Muskogee county, Okla., said murder, according to the allegations of the information, was alleged to have been committed in said county on the 10th day of January, 1922, by shooting to death one Abraham Hersh with an automatic revolver. It appears from the record that the conviction of the plaintiff in error resulted at the conclusion of a second trial of this case, the jury fixing the punishment at imprisonment in the penitentiary for life, and on the 29th day of May, 1922, the court rendered judgment in accordance with the verdict. The petition in error and case-made were filed in this court on the 28th day of November, 1922, and the case was finally submitted on the record on October 6, 1924.

This being an appeal from a judgment of conviction for a felony, the court has carefully examined the record in connection with the errors assigned. The transcript of the evidence is voluminous, covering more than 500 pages of typewritten matter. The plaintiff in error shot and killed his brother, Abraham Hersh, at their place of residence in the city of Muskogee. At the time he also shot and killed a visitor at their home by the name of Henry Estin, and also shot and wounded his sister-in-law, Esther Hersh, and his wife, Jennie Hersh. According to the testimony of the eyewitnesses for the state, this killing was a deliberate murder, without any justification or excuse. The defense interposed was self-defense, and the defendant claims that he shot his brother, Abraham Hersh, and Henry Estin at a time when they were making an attack upon him with a knife in an effort to carry out threats previously made against his life by his brother, Abraham Hersh. The law covering these issues was fully explained to the jury in the instructions given by the trial court. The jury adopted the theory of the state, and while the evidence is conflicting, the testimony given by the state’s witnesses is such, if believed, as it evidently was, as is sufficient to sustain the verdict and judgment. An examination of the information discloses that it is a sufficient charge of murder, and the instructions, we believe, are fair to both sides.

It is to be regretted that no brief has been filed or argument made on behalf of this defendant in this court. Where one is charged with and convicted of the crime of murder and sentenced to life imprisonment at hard labor, and an appeal taken from such judgment to this court, the appellate court should have the benefit of a brief in support of the reasons assigned that the judgment should be reversed. However, in the absence of any such brief or any argument made in behalf of this plaintiff in error, the court has taken occasion to carefully examine this record and has reached the conclusion that no error occurred during the progress of the trial sufficiently prejudicial to authorize or require a reversal of this judgment.

The judgment is therefore affirmed.


text:
    TOM LAND et al. v. STATE.
    No. A-4543.
    Opinion Filed Nov. 1, 1924.
    (229 Pac. 844.)
    (Syllabus.)
    Trial — Instruction that, if Either Defendant Found Guilty, Both May Be Convicted, Held Prejudicial. Where, on a joint trial, the court instructs in substance and effect that, if the jury believe either defendant guilty, they are at liberty to find both defendants guilty, the error is prejudicial.
    Appeal from County Court, Beckham County; E. G. McComas, Judge.
    Tom Land and another were convicted of the unlawful conveyance of intoxicating liquor, and they appeal.
    Reversed and remanded for new trial.

      Arthur Leaeh, for plaintiffs in error.
    The Attorney General, for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction rendered against these plaintiffs in error in the county court of Beckham county on a joint trial on a charge of unlawful conveyance of intoxicating liquor. The jury failed to agree on the punishment, and the court assessed the punishment against each at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The trial court gave the following instruction:

- “You are instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendants Tom Land or Dick Brock, or either of them or both of them, at or within the county of Beckham, state of Oklahoma, on the 23d day of October, 1922, did unlawfully, willfully, and wrongfully, convey, transport, and carry certain spirituous and intoxicating liquor, to wit, two pints of whisky from a point unknown to your affiant to a point on the section line about one-half mile west of the north end of Main street, in Erick, Beckham county, Okla., as charged in the information filed herein, then the defendant or defendants will be guilty of the offense charged, and you should so say by your verdict; but you are further instructed that if you do not so find all of these facts to have existed and occurred beyond a reasonable doubt, then you should acquit the defendant, or defendants, and find a verdict of not guilty.”

The foregoing instruction was objected to by the defendants. The objection was overruled and exceptions allowed. The giving of said instruction over the objection and exception of defendants was urged in the trial court as one of the grounds for a new trial, and is here urged as prejudicial to the substantial rights of plaintiffs in error.

We think this instruction, in the form given, is preju-dicially erroneous to these plaintiffs in error, in that it is misleading and ambiguous. The trial judge evidently intended to tell the jury that, although the defendants were jointly charged and tried, it was within the province of the jury to acquit one and find the other guilty, or to acquit both of them, or to find both of them guilty, but instead the trial court in effect told the jury that if the jury believed beyond a reasonable doubt that either of them was guilty of the offense charged and as charged, then “the defendant or defendants will be guilty of the offense charged.” This was equivalent to saying that if the jury believed beyond a reasonable doubt that either one of the defendants was guilty, then the jury was at liberty to convict both defendants, although the jury may have had a reasonable doubt as to the other defendant. We have examined the charge as a whole, and in none of the paragraphs thereof is the meaning of the court as contained in the foregoing instruction made clear to the jury.

For such reason the judgment as to each plaintiff in error is reversed, and the cause remanded to the trial court, with directions to grant a new trial.

BESSEY and DOYLE, JJ., concur.


text:
    JESSE WILSON v. STATE.
    No. A-4501.
    Opinion Filed Nov. 1, 1924.
    (229 Pac. 1119.)
    Appeal from District Court, Sequoyah County; J. H. Jarman, Judge.
    Jesse Wilson was convicted of the crime of assault with intent to rape, and appeals.
    Judgment affirmed.
    Carlisle & Pitchford, for plaintiff in error.

      The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, Jesse Wilson, was charged in the district court of Sequoyah county with the crime of assault with intent to rape one Ardie Edgmon, alleged to have been committed in said county on the 28th day of July, 1921. On a trial to a jury in May, 1922, a verdict of guilty was returned, leaving the punishment to be assessed by the court. On May 19, 1922, the trial court rendered judgment on the verdict and fixed the punishment at one year’s imprisonment in the state reformatory. The petition in error and case-made were filed in this court on November 16, 1922, and the case was submitted on the record on October 6, 1924. This being an appeal from a judgment of conviction for a felony, the court has carefully examined the record, in connection with the errors assigned, and finds that the testimony on the part of the state, if believed, as it was, was sufficient to sustain the verdict and judgment. The information is sufficient, and the instructions were fair in every respect, and fully covered the law of the case. Finding no error in the record, the judgment is affirmed.


text:
    C. W. ROOSEVELT v. STATE.
    No. A-4450.
    Opinion Filed Nov. 1, 1924.
    (229 Pac. 1118.)
    Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
    C. W. Roosevelt was convicted of the crime of arson, and appeals.
    Judgment affirmed.
    Ross N. Lillard and J. W. Burns, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, C. W. Roosevelt, was charged in the district court of Oklahoma county with the crime of arson, alleged to have been committed in said county on the 24th day of November, 1921, by setting fire to and burning certain personal property, to wit, furniture and other household goods located in a one-story frame dwelling house at No. 1822 Exchange avenue, Oklahoma City. On a trial to a jury in March, 1922, a verdict of guilty was returned, fixing the punishment at imprisonment in the penitentiary for four years. On March 9, 1922, the court rendered judgment in accordance with the verdict. The petition in error and case-made were filed in this court on September 9, 1922, and the case was submitted on the record on October 6, 1924. This being an appeal from a judgment of conviction for a felony, the court has carefully examined the record, in connection with the errors assigned, and finds that the testimony on the part of the state, while circumstantial, is such that, if believed, it conclusively proves the defendant guilty of the crime charged. The information is sufficient, and the instructions fairly and fully cover the law of the case. Finding no error in the record, the judgment is affirmed.


text:
    EUGENE C. McNUTT v. STATE.
    No. A-4381.
    Opinion Filed Nov. 8, 1924.
    (229 Pac. 845.)
    (Syllabus.)
    Appeal and Error — Appeal Dismissed Where Appellant Becomes Fugitive from Justice. Where a defendant had been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case. And where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, this court will on motion dismiss the appeal.
    Appeal from District Court, Stephens County; Cham Jones, Jiidge.

      Eugene C. McNutt was convicted of murder, and he appeals.
    Appeal dismissed.
    W. C. Lewis, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Eugene C. McNutt, alias Earl Mason, was convicted of murder for having shot and killed Ben Coleman, on or about the 16th day of September, 1921, and his punishment assessed at imprisonment for life at hard labor. From the judgment rendered on the verdict he appealed by filing in this court on June 15, 1922, a petition in error with ease-made.

The Attorney General has filed a motion to dismiss the appeal, on the ground that plaintiff in error has become a fugitive from justice.

Attached to said motion is the affidavit of W. C. Key, warden of the state penitentiary at McAlester, certifying that the plaintiff in error, Eugene C. McNutt, escaped from the state penitentiary on the 26th day of July, 1924, and that he is now a fugitive from justice.

In the response filed the facts stated in the motion to dismiss are not denied. On facts averred in the motion we think the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions, that this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and when the plaintiff in error becomes a- fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal. Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515; Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453; Glover v. State, 12 Okla. Cr. 287, 155 Pac. 199; Young v. State, 16 Okla. Cr. 116, 180 Pac. 872.

Upon the uncontroverted facts the plaintiff in error has waived the right to have his appeal in this court considered and determined. The appeal is therefore dismissed. Mandate forthwith.

MATSON, P. J., and BESSEY, J., concur.