author: MATSON, J.

text:
    ROBERT J. BOONE v. STATE.
    No. A-2737.
    Opinion Filed April 29, 1918.
    Rehearing Denied September 24, 1918.
    (175 Pac. 61.)
    1. APPEAL AND ERROR — Review—Discretion of Trial Court-Ruling on Motion. Where a motion is presented to the trial court which involves the exercise' of the court's discretion, and the evidence in support of and in opposition to said motion is conflicting, and apparently equally positive on each side of the controversy, the ruling on such motion by the trial court, denying said motion, will not be disturbed by this court, as in such an instance there cannot be said to be a showing of flagrant abuse of discretion by the trial court.

      2. INDICTMENT AND INFORMATION — Venue—Information. Information examined, and held, allegations are sufficient to show venue of the action to be in Muskogee county, Okla.
    3. EVIDENCE — Bank Books. Certain records and entries in hooks of account kept by certain banks, and other written evidence, were 'admitted in evidence over the objection and exception of the defendant. Held, properly admitted in this case.
    4. EVIDENCE — Means of Procuring. The admissibility of evidence is not affected by reason of the illegality of the means through which it may have been obtained.
    5. EMBEZZLEMENT — Sufficiency of Evidence. Evidence examined, and held sufficient to support the judgment.
    6. INDICTMENT AND INFORMATION — Charge of Distinct Felonies — Election. It is only when distinct felonies, not of the same character, are charged in different counts of the same indictment or information, that 'the state may be required to elect upon which count it will claim a conviction.

      Appeal from District Court, Muskogee County; R. P. de Graffenried, Judge.

    Robert J. Boone was convicted of the crime of embezzlement and sentenced to serve a term of three years in the state penitentiary, and he appeals.
    Affirmed.

      Crump, Bailey & Crump, Wash Hudson, and Robert J. Boone, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

One of the many assignments of error relied upon for a reversal of this judgment of conviction is alleged-misconduct on the part of one of the jurors and the prosecuting attorney, which it is claimed was prejudicial to the defendant. During the progress of the trial, and while counsel for defendant was making the opening-statement in behalf of the deferidant, the wife of the defendant and a lady friend of hers, who were sitting within the bar of the court, claimed that, one of the jurors smiled and winked at the county attorney, and that he thereupon winked and smiled at one of his assistants, who was sitting hear him. The affidavits of these witnesses were filed in support of a motion to discharge the panel and declare a mistrial.' The trial court heard evidence in-support of and against this motion. The prosecuting attorney strenuously denied the allegations of the motion under oath, and the counsel who was addressing the jury stated that he saw the •juror smile, but did not notice that he winked at any time, during counsel’s statement: The court denied the motion to discharge the panel. At the conclusion of the trial, and as one of the grounds set forth in the motion for a new trial, this alleged misconduct on the part of the juror and the county attorney was again set forth, and at that time the court further heard the testimony of the juror whose conduct was attacked. The juror under oath specifically denied that he had either winked or smiled at the county attorney at any time during the progress of the trial.

The alleged misconduct of the said juror and the county attorney, both as a ground for declaring a mistrial and for granting a new trial, was addressed to the sound discretion of the trial court. The matters complained of do not form a statutory ground of challenge to either the individual juror or to the panel. The evidence both on the hearing to declare a mistrial and in support of the motion, for a new trial was conflicting. All of the witnesses were present and were heard by the trial judge, and under such circumstances this court will not disturb a ruling on such discretionary matters, unless it clearly appears that there-was a flagrant abuse of discretion on the part of the trial judge. An examination of this record does not disclose any such abuse of discretion, and it is impossible to say with certainty that such misconduct was clearly prejudicial to the Substantial rights of the defendant. Conduct of this Mnd, if it does occur, should meet with prompt punishment by the trial court, and we have no doubt that summary punishment would have been inflicted in this instance for such contemptuous conduct, had it been so open and flagrant as to attract the attention of the trial judge. It-is not the purpose of this court to condone or ratify such actions occurring in open court; but where evidence in sup.port of the motion and in rebuttal thereof is clearly conflicting, and apparently equally positive on each side of the controversy, the ruling of the trial court in denying such motion, where such ruling involves the determination of a question of fact, being discretionary with the trial court, this court, under such circumstances, in the absence of a showing of a flagrant abuse of discretion, will not disturb the trial court’s determination.

It is also contended that the court erred in overruling the demurrer of plaintiff in error to the first count of the information. The record discloses that the jury found the defendant guilty under the charge contained in the first count. It is alleged in the brief of plaintiff in error under this assignment that the information nowhere charges that the check the defendant is charged with having embezzled was embezzled or appropriated by defendant in Muskogee county. The first count of the information is as follows (omitting the formal parts) :

“Now comes- Fred P. Branson, the duly qualified and acting county attorney in and for Muskogee county, state of Oklahoma, and gives the district court of Muskogee county, state of Oklahoma, to know and be informed that Robert J. Boone did, in Muskogee county, and in the state of Oklahoma, on or about the 2d day of October, in the year of our Lord one thousand nine hundred and twelve, and anterior to the presentment hereof, commit the crime of embezzlement in the manner and form as follows, to wit: That the said Robert J. Boone, in the county and state aforesaid, on the 2d day of October, 1912, was a duly licensed and practicing attorney at law, and as such attorney at law was the attorney for one Robert J. Glenn, guardian of Elma Glenn, a minor, in probate case No. 1408 U. S., then pending in the county court of Muskogee county, Oklahoma, and that the said Robert J. Boone, as such attorney for said Robert J. Glenn, guardian of Elma Glenn, a minor as aforesaid, was then and there intrusted with, and had in his possession and under his control by virtue of the trust relation that then and there and thereby existed between him and Robert J. Glenn as such guardian as aforesaid, moneys, checks, credits, and other representatives of value that may be charged as money and of the value of more than one thousand eight hundred and ninety-four dollars ($1,894), which had come into his possession and under his control by virtue of said trust as such attorney for said Robert J. Glenn, guardian of Elma Glenn, a minor as aforesaid, and that the said money, checks, credits, and other representatives of value were then and there the special property of the said Robert J. Glenn, guardian of Elma Glenn, a minor as aforesaid, and that the said Robert J. Boone, as such attorney, was intrusted with and had in his possession and under his control, among other property, checks, and credits, one certain check of the value of one thousand eight hundred and ninety-four dollars ($1,894), for the use of said Robert J. Glenn as guardian of Elma Glenn, a minor as aforesaid; that said check was a certain cashier’s check drawn in favor of E. D. Sweeney, as cashier of the Commercial National Bank of Muskogee, Oklahoma, under date of September 30, 1912, and for the sum of one thousand eight hundred and ninety-four dollars ($1,894), indorsed by the said E. D. Sweeney in favor of the said Robert J. Glenn, guardian of Elma Glenn, a minor, and of the value of one thousand eight hundred and ninety-four dollars ($í,894), a more particular description of which check is to your informant unknown, and cannot here be given, and that the said Robert J. Boone, attorney for the said Robert J. Glenn, guardian of Elma Glenn, as aforesaid, while he was such attorney and while .he was so intrusted with said check as aforesaid, did knowingly, willfully, unlawfully, wrong-, fully, fraudulently, and feloniously embezzle, convert, and appropriate to his own use and benefit, and to a use and purpose not in due and lawful execution of his trust as aforesaid, as such attorney for the said Robert J. Glenn, guardian as aforesaid, the said check ■ for one thousand eight hundred and ninety-four dollars ($1,894), with the unlawful, fraudulent, and felonious intent then and there on the part of him, the said Robert J. Boone, to appropriate and convert the same to his own use and benefit, and to a use and purpose not in due and lawful execution of his trust as aforesaid, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Section 5738, Revised Laws 1910, provides:

“The indictment or information must contain: First, The title of the action, specifying the name of the court to which the indictment or information' is presented, and the names of the parties. Second. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Section 5739, Id., provides :

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

Section 5746, Id., provides:

“The ipdictment or information is sufficient if it can be understood therefrom: First. That it is entitled in a court having authority to receive it, though the name of the court be not stated. Second. That it was found by a grand jury or presented by the county attorney of the county in which the court was held. Third. That the defendant is námed, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown. Fourth. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein. Fifth. That the offense was committed at some time prior to the time of filing the indictment or information. Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Seventh. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment 'upon a conviction according to the right of the case.”

Section 5747, Id., provides:

, “No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected,- by reason of a defect or imperfection in the matter of form which does hot tend to the prejudice of the substantial rights of the defendant upon the merits.”

It will be noted that in the preliminary allegation preceding the direct charging part of the indictment, it is alleged:

“That Robert J. Boone did in Muskogee county, Oklahoma, on or about the 2nd day of October, 1912, and anterior to the presentment hereof, commit the crime of embezzlement in manner and form as follows, to wit.”

And then the information charges the embezzlement of a check for $1,894. This has been the customary way of drawing indictments and informations in this state since statehood, and, technically speaking, while it would be better pleading for the information to contain in the direct charging part a more specific allegation that the acts and effects of the crime were committed in the county in which the indictment is returned or the information presented, nevertheless it is the opinion of the court that the above count of this information complies substantially with the foregoing statutes and sufficiently charges the crime of embezzlement to have been committed in Muskogee county. The defendant was not and could not have been misled by any of the allegations of this information. The demurrer thereto was properly overruled.

Among other things, counsel for defendant has presented numerous assignments of error based on the proposition that certain record evidence was admitted over the objection and exception of the defendant, without sufficient preliminary proof and to his prejudice.

First, it is contended that the court erred in admitting state’s Exhibits Nlos. 1, 2, and 3. Exhibit No. 1 was the record of a bond purporting to have been executed by Glenn as guardian of Elma Glenn; Exhibit No. 2 was the record of letters of guardianship issued to Glenn as guardian of Elma Glenn; and Exhibit No. 3 was the purported record of a certain mortgage executed by J. F. Paulter and wife to William L. Gilcrease, which said mortgage, the record shows, was afterwards assigned to-. Glenn as guardian of Elma Glenn, and the proceeds of which reached the hands of this defendant in the form of a cashier’s check, which it is alleged in the first count of the indictment was embezzled by him.

We think these records were properly admitted. Nos. 1 and 2 were admissible to show the appointment and qualification of Glenn as guardian o'f Elma Glenn, and record evidence of this kind is admissible, where relevant, under the provisions of section 5115, Rev. Laws 1910. In this case its admission could not be prejudicial, because the defendant admitted as a witness that Robert J. Glenn was the duly qualified and acting guardian of Elma Glenn, and also admitted that as attorney for said Glenn he came into possession of the proceeds received in payment of the Paulter mortgage. He could not, therefore, have been injured to his prejudice under the circumstances by the admission of the record evidence first complained of.

Certain entries of account kept by certain banks in which the personal funds of this defendant, and also the funds of Glenn as guardian of Elma Glenn, were kept, showing deposits and withdrawals of money by this defendant at various times closely related to the time that it is alleged that this particular embezzlement occurred, are claimed to have been erroneously admitted in evidence for 'the reason that the testimony offered in relation thereto was not sufficient to meet the requirements of law as to a single one of these exhibits. We have examined the record carefully in connection with these various assignments of error, and also the brief of counsel for defendant in support thereof. Before these record entries were admitted, the court required proof in some instances that they were made in due course of the bank’s business, and were checked up by balances at the close of business every day, and verified as correct entries. In other instances the testimony of witnesses who made the entries was to the effect that' they were correctly made. In our opinion, the proof was sufficient to meet the requirements of section 5114, Rev. Laws 1910, and the court did not commit any error prejudicial to the defendant in these respects.

It is also contended that certain reports by the guardian, Glenn, made to the probate court pf Muskogee county, covering a period from April, 1911, to May, 1913, were erroneously admitted in evidence for the reason that, while it is admitted that these were reports prepared by the defendant as attorney for Glenn, the guardian, yet there is no proof that they were in the same condition when admitted in evidence that they were in when prepared and filed by defendant as true and correct reports for the guardian. These reports were the records kept in such guardianship in the probate court, and they were admitted after proof that they had been filed for record by the guardian. They were properly verified. They were prepared by this defendant, and there was nothing on the face of the reports in any way to impeach the truth of the matters therein stated, or to show any erasures or mutilations thereof. The defendant took the witness stand in his own behalf, and did not as a witness under oath testify that there had been any change in these reports, since they were prepared and filed by him. He is in no position at this time to claim that they were improperly admitted.

The same is true as to certain correspondence between defendant and his cousin, John H. Carter, which correspondence was found in the personal files of the defendant in his former law office at Muskogee, after he had moved his law office to Tulsa, Okla. It is contended that the letter from Carter to Boone was not properly identified as having been written by Carter, and that the letter purporting to be from Boone to Carter was not shown to be a true copy of any letter written by Boone to Carter. We have examined the record carefully in regard to these contentions, and find sufficient proof as to each to authorize the court to admit these exhibits.

However, in addition, it is contended that “the introduction of these two exhibits had the effect to compel the defendant to produce evidence against himself; that it was shown that these papers were extracted from his personal files in an office formerly occupied by him, and if they were in his files they were his private property, which no man had a right to purloin.” It is contended that 'the taking of these exhibits from his personal files was compelling him to give evidence tending to incriminate himself, in violation of section 21, art. 2, of the Constitution. While there is no showing in this record that illegal means were used to obtain possession of this evidence, nevertheless its admissibility would not have been affected by reason of the illegality of the means through which it had been obtained. This question has heretofore been passed on by this court in the case of Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199.

It is also contended that the verdict and judgment are contrary to the law and the evidence. We believe that the state clearly established the guilt of the defendant, and that the judgment is supported by an abundance of evidence. The record discloses that the defendant, Boone, had been from the inception of this guardianship one -of a firm of attorneys representing both the guardian and the surety company which was bondsman for the guardian. .He was the confidential adviser of the guardian, and, in addition thereto, no withdrawal of money could be made by the guardian from the ward’s estate, by check or otherwise, until and unless such check or order had first met the approval of the guardian’s attorney by being countersigned by him. This was a requirement of the surety company before it would become liable as surety on the guardian’s bond. The ward’s estate was a large one, being derived almost exclusively from royalties on oil produced in what is widely known as the “Glenn Pool.” Many thousands of dollars were received during the course of a year from this source and invested by the guardian in various classes of securities, principally in mortgages on real estate. The practice appeared to be to report these loans annually, and to receive the sanction of the probate court thereon. It appears that one Gilcrease, guardian of another Indian ward, had as a part of the assets of his ward’s estate a loan secured by mortgage given by one Paulter and wife on certain real estate in Wagoner county, Okla. This loan he. negotiated to Glenn, as guardian of Elma Glenn, with the approval of the probate court of Muskogee county in the year 1911. Said loan matured in September, 1912, at which time it was paid off by Paulter to Boone, the defendant, as attorney for Glenn, the guardian. $1,894 of this money was converted into a cashier’s check and deposited by Boone in the Central1 State Bank of Muskogee to his personal account. Thereafter Boone checked out this money; the theory of the state being that he converted it to his own use.

Boone’s theory is, while admitting that he deposited the check in his own name and drew his personal checks against same until it was exhausted, that the proceeds derived from the loan were all given to his cousin, John H. Carter, as a temporary loan by Glenn, as guardian; that he first had informed Glenn that this loan was to be made, and had received his consent to make it. Glenn specifically denies having given any consent to said loan, and denies that the defendant said anything to him about it until some months after defendant claims the loan was made. In regard to this controversy, the first written evidence of the fact that the defendant ever notified Glenn that such loan was made or intended to be made was contained in a letter to Glenn under date of April 1, 1913, at least six months after defendant claims he had loaned the money to Carter. Said letter is as follows.:

“April, 1, 1913.
“Robert J. Glenn, Glenn Pool, Oklahoma — Dear Sir: We beg to hand you herewith petition for an order authorizing a loan of $2,500.00 to John H. Carter and wife, on 160 acres of land. Please sign the same and return to us at your earliest convenience, and oblige.
“Very sincerely.
“Enel. RJB — E.”

Receiving no reply from Glenn to this letter, defendant again wrote Glenn on the 25th of April, 1913, to the following effect:

“April 25, 1913.
“Mr. Robert J. Glenn, Glenn Pool, Oklahoma — Dear Sir: We sent you some time ago a petition for the approval of a loan to John H. Carter and wife, but so far we have not received the same from you. Please sign this petition, verify it before a notary public, and return at your earliest convenience.
“Very sincerely.
“RJB — F.”

A short time thereafter Glenn answered the foregoing letters as follows:

“Collinsville, Oklahoma.
“Butte, Boone & Lattimore, Muskogee, Oklahoma: Inclosed you will find application for bond duly signed. This seems to have been on the road for some time. Have a court order here for loan don’t think I would like it will be down in a few days to make annual report.
“Yours &c., R. J. Glenn.
“P. S. — You can file this application, sub.”

On the 27th day of May, 1913, defendant madé a report for the period from May 6, 1912, to May 19, 1913, to the probate court, of the various loans made out of said •ward’s estate, and said report failed to enter this alleged loan to Carter. Carter was a resident of Florida, a cousin of the defendant, and the jury evidently concluded that no bona fide loan had ever been made out of this ward’s estate at any time to Carter; that all of defendant’s efforts-to produce evidences of such a loan were mere subterfuges, and conceived after it became known that the probate court was making an investigation of the dealings of Glenn, as guardian, with reference to this estate, with the purpose in view of removing him. The evidence appears to be compelling of the guilt of this defendant, and a careful perusal of the record convinces us that the jury could have arrived at no other logical and just conclusion.

In this connection it is contended that there is no evidence which tends to establish any guilty intent on the part of the defendant. There are numerous circumstances, such as evidence of other similar embezzlements occurring about the same time from this estate and other estates for which this defendant was acting as attorney, with power and authority the same as in this instance. The fact that he concealed the loan to Carter, if such loan was ever made, for five or six months, his contradictory statements, his admissions to Glenn, and other facts and circumstances which it is unnecessary to enumerate, all tended to establish the guilty intent and authorized the jury to reach the conclusion that it was his purpose to .defraud. The contention that the judgment is not supported by sufficient evidence is clearly without merit.

The claim is also made that the court erred in refusing to require the state, at the close of its evidence, on motion by defendant, to elect upon which count of the information it relied for conviction. The first count of the information charged the embezzlement of the cashier’s check, the second count charged the embezzlement of the money derived from the proceeds of the cheek. There was no error in this respect. In the case of Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554, where the identical question here presented was raised, the.court said:

“It is only when distinct felonies, not of the same character, are charged in different counts of the same indictment or information that the state may be required to elect upon which count it will claim a conviction.”

We reach the conclusion, therefore, that there is no merit in any of the assignments of error relied upon for a reversal of this judgment. The instructions given by the court were exceedingly favorable to the defendant and pre-sented his defense fully in every phase thereof. The question of his guilt or innocence was fairly and impartially laid before the jury, and his constitutional and statutory rights were safeguarded at every step of the trial..

The judgment of conviction is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C. J. CRILLEY v. STATE.
    No. A-2799.
    Opinion Filed May 18, 1918.
    Rehearing Denied June 21, 1919.
    1. INDICTMENT AND INFORMATION — Duplicity. In view of Rev. Laws 1910, section 5741. relating to different counts, an information charging that defendant unlawfully and willfully and wrongfully attempted to use force upon the person of another and to do corporal hurt to such .other by throwing a heavy stick or club at him, and did by words threaten and offer to hit such other, was not duplicitious, as the charge as to threatening and offering to hit might he treated as surplusage, leaving a complete information charging simple assault.
    2. ASSAULT AND BATTERY — Simple Assault — Offense. It 'is nor. an offense to threaten by words to hit. another, but there must be an overt act or offer or an attempt to hit before the crime of assault is committed.
    3. SAME — Question for the Jury. On conflicting evidence in a prosecution for a simple assault, held, that defendant’s guilt was a question for the jury.
    4. APPEAL AND ERROR — Verdict. Where there is evidence, from which the jury could with reason have found the defendant was guilty, the court will not disturb the verdict for alleged insufficiency of the evidence.

      Appeal from County Court, Alfalfa County; F. M. Gustin, Judge,

    C. J. Crilley was convicted of simple assault, and his punishment fixed at a fine of $50 and costs, and he appeals.
    Judgment affirmed.

      W. E. Wiles, Ira A. Hill, and Guy D. Talbot, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R■ McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

G. J. Crilley was convicted in the county court of Alfalfa county of' simple assault. The court assessed the punishment at a fine of $50 and costs of the action, from which judgment the accused has appealed, and he asks this court to reverse the judgment for the following reasons: (1) That the court erred in overruling demurrer to the information upon the ground that the same is duplicitous.

The information is as follows (omitting the formal parts) :

“I, the undersigned, county attorney of Alfalfa county, Okla., in the name, by the authority, and on behalf of the state of Oklahoma, give information that on the 13th day of May, A. D. 1916, in said county of Alfalfa and state of Oklahoma, one C. J. Crilley did then and there unlawfully and willfully and wrongfully attempt and offer to use force and violence upon the person of another person, and that is to sa'y that the said C. J. Crilley did attempt to do corporal hurt to one I. E. Bradley by throwing a heavy stick or club at the person of I. jE. Bradley, and did by words threaten and offer to hit the said I. E. Bradley over the head with said stick or club. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

We cannot agree with the contention of counsel for plaintiff in error that this information is duplicitous. Down to the words “and did by words threaten and offer to hit,” etc., the information charged fully and completely the crime of simple assault for which a conviction was had, and beginning with the words above quoted, which was* an attempt upon the part of the county attorney to charge the assault (which the evidence shows to have been a continuing transaction) to have been committed by use of different means (1) by throwing the stick or club at Bradley, and (2) by offering to hit said Bradley with the stick or club, such pleading would have been permissible under section 5741, Rev. Laws 1910, and such allegations would have been.sufficient had not the language “by words threaten and” been inserted, because it is not an offense to' threaten by words to hit another, but there must be an overt act or offer oT an attempt to hit before the crime of assault is committed; so that the information as drawn does not charge two separate offenses, and the language beginning “and did by words threaten and offer to hit the said I. E. Bradley” may be treated as surplusage, and we still have a complete information charging the crime of simple assault. The demurrer, therefore, was properly overruled.

It is also contended that the trial court erred in not sustaining the motion to direct a verdict of not guilty. If the evidence of the defendant and his witnesses was to be believed by the jury, then he should have been acquitted; but the evidence on the part of the prosecuting witnesses and several persons who corroborated them was equally positive as to the guilt of defendant of the crime charged. There was a direct conflict, therefore, in the evidence, which' it is the sole province of the jury to decide. This court has repeatedly said that, where there is evidence .from which the jury could have.with reason reached the conclusion that the defendant was guilty, this court will not disturb the verdict because of the alleged insufficiency of the evidence.

It is contended, also, that the court erred in admitting incompetent, irrelevant, and immaterial evidence which was prejudicial to the. substantial rights of the defendant. The evidence complained of relates to certain testimony by I. E. Bradley, the prosecuting witness, and his wife, who was present at the time of the alleged assault, concerning the statements made by the defendant of a threatening nature, such as “Damn, you, stop, or I’ll throw this clear through you,” and “I’ll hit you any time I want to,” etc.

It is claimed that these statements do not in themselves constitute any element of the crime charged. Admitting that the statements of themselves would not support a conviction, they were undoubtedly admissible as part of the res gestae, because they occurred right at the time of the alleged assault, were voluntary expressions of ill temper on the part of the defendant tending to explain his conditon of mind at the time, and were properly to be considered by the jury in explanation of his conduct in throwing a cane or club in the direction of. the prosecuting witness; the contention of the state being that he threw the cane or club with the intention of injuring the prosecuting witness, while defendant claimed that he did not throw it at the prosecuting witness but threw at the wheel of the automobile in which said prosecuting witness was riding in order to get him to stop the car; the defendant being the city marshal and claiming his purpose was to call attention of prosecuting witness to the fact that he was in the act of driving his automobile at night without lights. It is apparent that under the circumstances the voluntary outbursts of defendant at the time were competent.

Complaint is made also that the court erred in excluding certain competent and relevant evidence. After an examination of the record, we cannot say that there was error in this respect sufficient to justify a reversal of this judgment.

The judgment of conviction is therefore affirmed.


author: ARMSTRONG, J.

text:
    B. W. GARRETT v. STATE.
    No. A-2492.
    Opinion Filed June 28, 1918.
    Rehearing Denied September 24, 1918.
    (174 Pac. 799.)
    1. HOMICIDE — Instructions—Applicability to Facts. On the trial of a person charged with homicide, it is unnecessary for the court to submit to the jury a proposition of law inapplicable to the facts developed.
    2. HOMICIDE — Self-Defense—Evidence. In order to bring a homicide within the law of justification on the ground of self-defense, it is necessary that there be some probative facts upon which the jury could legitimately reach this conclusion.

      Appeal from District Court, 'Jackson County; Frank Mathews, Judge.

    B. W. Garrett was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Dabney & Thorpe, John D. Rogers, Ben F. Williams, P. K. Morrill, and John E. Luttrell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and C. E. Hall, Co. Atty., for the State.
   ARMSTRONG, J.

The plaintiff in error, B. W. Garrett, was tried at the January, 1915, term of the district court of Jackson county on a charge of murder, and was convicted of manslaughter in the first degree. The court fixed the punishment at 12 years’ imprisonment in the state penitentiary.

The information charges the plaintiff in error, Garrett, with the murder of Jim Thornton, on the 13th day of July, 1914. It appears that on July 12, 1914, Garrett and other persons, who were driving in the country near Headrick, procured some beer from the deceased, Thornton; that after returning to the town of Headrick, Garrett went to a restaurant and ordered a meal. Thornton came in, and demanded that Garrett pay what he owed for the beer. A fight ensued, in which both of the parties received injuries. Following the fight on the night of the 12th, the deceased made numerous threats against the life of the accused, which threats were communicated to him. A number of witnesses also testified to having interceded with the deceased on the morning of the homicide to let the trouble drop. All of these, with one exception, say that he declined to do so, and insisted that he was going to have vengeance; that both he and the accused could not live in the town longer. Two or three witnesses endeavored to settled the difficulty peaceably. The deceased refused to adjust the matter amicably. The witnesses state that the accused, Garrett, said that he was willing to settle, and would be glad to do so and let the matter drop. Negotiations for a settlement were dropped, and the witnesses informed Garrett that the trouble could not be adjusted. Shortly after these negotiations ceased, the deceased came down the sidewalk and passed in front of Garrett’s place of business. Some witnesses say that he walked straight along and did not stop in front of the place. The accused testified tht deceased did stop, and attempted to enter the.pool hall, and that he shot him in the recessed entrance; that he followed out on the street and shot him two or three times more. One shot seems to have entered the body on the right side and penetrated through, coming-out on the left side. The other shots apparently entered the body from the rear.

Proof was offered on behalf of the accused tending to show that the deceased was a man who habitually carried a revolver, and was prone to use it on slight provocation. Specific acts of misconduct with the revolver known to the accused were not permitted to be shown by the trial court. It was the contention of the accused at the trial that the deceased started to enter his place of business, and he ordered deceased not to come in, and that deceased attempted to come in anyway, and that he shot deceased in order to prevent deceased from killing him or doing him serious bodily harm. Much complaint is made in the brief against the instructions given by the court, as well as the refusal to give certain requested instructions .offered by the defendant. Upon examination, however, we find that the material instructions given by the court have been approved in this jurisdiction. It will be unnecessary, therefore, to discuss them.

The only assignment of error, based upon the refusal of the court to give instructions requested, which we feel it necessary to discuss at all, is a request for an instruction in which counsel sought to have the court submit to the jury as conclusive that, the acts of the deceased at the time of the homicide, in attempting to walk into the pool hall, testified to by the accused and viewed from his standpoint, amounted to a hostile, overt act upon the part of the deceased. We shall not undertake to discuss the request further than to say that, even though it was sufficient to call the court’s attention to the proposition relied upon, the testimony of the accused himself did not warrant the court in submitting it. No hostile, overt act is disclosed. It rather overwhelmingly appears that the homicide was an unnecessary one viewed from the testimony offered at the trial by the defendant himself.' The fact that the deceased was unarmed; that he made no hostile demonstration whatever as if to do immediate injury to the accused; the numerous shots fired, and the manner in which they took effect; the fact that the accused followed on to the sidewalk and fired a number of shots .into the body of deceased after he had taken flight — can hardly be said to bring this homicide within the law of necessary self-defense.

An impartial review of the record discloses no prejudicial error, but leads conclusively to the conclusion that a just verdict was reached under the law.

The judgment is therefore affirmed.

DOYLE, P. J., and MATSON, J„ concur.


author: DOYLE, P. J.

text:
    ELDRIDGE BOLES et al. v. STATE.
    No. A-2944.
    Opinion Filed September 24, 1918.
    (174 Pac. 1093.)
    1. LARCENY — Evidence. In the prosecution for the larceny of an automobile, the evidence examined, and held sufficient to sustain the verdict.
    2. APPEAL AND ERROR — Affirmance. Where an appeal from a judgment of conviction is taken to this court, and no briefs .are filed nor argument presented, this court will examine the record, and, if no error is apparent, the judgment will be affirmed.

      Appeal from District Court, Cotton County; ' Cham Jones, Judge.

    Eldridge Boles and Pollard Howard were convicted of larceny, and appeal.
    Affirmed.

      D. B. Madden, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had in the district court of Cotton county upon an information jointly charging Eldridge Boles and Pollard Howard with the theft of a Ford automobile, the property of one Joe Tilley. On the 14th day of September, 1916, the court rendered judgments on the verdict, and sentenced each defendant to be imprisoned in the penitentiary for a period of one year. To reverse the judgments an appeal was perfected by filing in this court on March 6, 1917, a petition in error, with case-made.

No briefs have been filed, and when the case , was called for final submission, no appearance was made on behalf of the plaintiffs in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal.

We have carefully examined the record and the evidence in the case, and it appears that the information is sufficient, and the verdict is abundantly sustained by the evidence. The instructions of the court, to which no objections were made or exceptions taken, fully and fairly cover the law of the case, and upon the whole case our conclusion is that the defendants had a fair trial and were properly convicted.

The judgments herein are therefore affirmed.

ARMSTRONG and MATSON, JJ.', concur.


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    D. J. CLARK v. STATE.
    No. A-2945.
    Opinion Filed September 24, 1918.
    (174 Pac. 1093.)
    APPEAL AND ERROR — Dismissal'. Where an appeal is taken to this court from 'an alleged judgment of conviction, and the record contains no copy of the judgment appealed from, the appeal will be dismissed for want of jurisdiction.

      Appeal from District Court, Roger Mills County; T. P. Clay, Judge.

    D. J. Clark was convicted of grand larceny, and appeals.
    Appeal dismissed.

      Mitchell & Madden, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, D. J. Clark, was convicted in the district court of Roger Mills county on a charge of grand larceny. On September 7, 1916, judgment was rendered, and he was sentenced to serve a term of two and one-half years’ imprisonment in the penitentiary at McAlester. From the judgment an appeal was attempted to be taken by filing in this court on March 6, 1917, a petition in error, to which is attached what purports to be a case-made, which consists of an affidavit of plaintiff in error as to loss of records, wherein affiant states:

“That on the 8th day of September, 1916, the courthouse of Roger Mills county; Oklahoma, was entirely destroyed by fire, and all the papers in said action were destroyed, including the notes of the reporter; the testimony and entire proceedings of the trial were destroyed; and the destruction of said record of the case and the proceedings was without any fault or blame on the part of this affiant, the plaintiff in error. The affiant states that because of the loss of said record he is unable to make a case-made to present to this court to have a review of the errors complained of in the petition in error.”

Also there are five applications for extension of time and orders granting the same and certificate of the trial judge. There is nothing to show that any proceedings were had under the provisions of chapter 71, Rev. Laws 1910, entitled “Restoration of Records,” or that any attempt was made to secure or have a nunc pro tunc judgment entered for the purpose of perfecting an appeal. Under the provisions of our Code of Criminal Procedure a transcript of the record or case-made must contain a copy of the final'judgment or order sought' to be reversed, vacate'd, or modified. Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535. Upon the record before us this court did not acquire jurisdiction of the appeal. It is therefore without authority to consider the same.

The purported appeal herein is therefore dismissed, and the cause remanded to thé district court of Roger Mills county, with direction to enforce its judgment therein.

ARMSTRONG and MATSON, JJ., concur.


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    JAMES TAGUE v. STATE.
    No. A-2729.
    Opinion Filed September 24, 1918.
    (174 Pac. 1106.)
    CRIMINAL LAW — Incriminatory Evidence — Claim of Privilege. Before any person can secure immunity . under section 27 of 'tlie Bill of Rights of our Constitution, on account of incriminatory evidence given by liim before any court of competent jurisdiction, such witness must have claimed his' privilege of silence, and be denied that privilege by the court, and forced to testify over his objections, and must also in good faith disclose all the facts pertaining to the matter inquired about truthfully.

      Appeal from County Court, Noble County; A. Duff Tillery, Judge.

    James Tague was convicted of violating the liquor law, and appeals.
    Affirmed.

      H. A. Johnson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, James Tague, was convicted at the' February, 1916, term of the county court of Noble county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of §50 and imprisonment in the county jail for a period of 30 days.

At the trial of this case the state introduced proof by two or three witnesses which disclosed the fact that they had gone to James T ague’s place of business and gave him money with which to purchase whisky; that he told them he did not have any, but knew where he could secure it; that they should return about 1 o’clock, and, he. would get the whisky while he was gone to lunch. They went away, and returned about 1 o’clock, and the whisky was produced and delivered to them. Some of it they drank at the time and place and with the said Tague. It 'subsequently developed that these two men were employed by some local association to secure evidence against persons engaged in the liquor traffic. It also appears that at about the same time, or shortly thereafter, an inquisition was held by the county judge and .county attorney, and the plaintiff in error brought before them and examined concerning his knowledge of the violation of the liquor law in Noble county. His counsel sought to have him exonerated from, prosecution on the ground that the particular circumstances, with the transaction out of which this charge grew, were gone into by the county judge and the county attorney. No denial was made by the plaintiff in error that he had committed the acts complained of. No testimony was offered to exonerate him. He stood solely upon the proposition that, having been examined by the county judge and county attorney as an inquisitorial body, he could not be prosecuted; it being his contention that he had disclosed facts fully and without reservation to that tribunal. No showing is made that he sought to be protected by a claim of immunity, or that answers he was about to make to questions would tend to incriminate him. In fact, nothing was done to bring him within the provision of the law as announced in Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381. In that opinion it is said:

“Before any person can secure immunity under section 27 of the Bill of Rights of our Constitution on account of incriminatory evidence, given by him as a witness before a grand jury, or in any court, such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such'witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify. * * *”

Under the doctrine laid down in that case, the plaintiff in error in the case under consideration is not entitled to relief at the hands of this court. He did not come within the rule there laid down. If he had desired immunity, or to refrain from disclosing incriminating facts, he should have claimed his right, and should have protected it to the extent of being forced by a judicial requirement to answer, as pointed out in the Scribner Case, supra. Having failed to do so, he is not entitled to prevail in his contention before the trial court in this cause.

No error appearing from the record, and the facts being sufficient to disclose a violation of the prohibitory liquor law under doctrine laid down in the case of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83, it follows that the judgment should be affirmed; and it is so ordered.

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


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    GEORGE CHILDS v. STATE.
    No. A-2913.
    Opinion Filed September 28, 1918.
    (175 Pac. 59.)
    1. TRIAL — Improper Argument. A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper -remarks objected to at the time will be considered and construed in reference to the evidence.
    2. APPEAL AND ERROR — Reduction of Sentence. Under Proc. Grim, {section 6003, Rev. Laws 1910), this court in the furtherance of justice has the power to modify any judgment appealed from by reducing the sentence.

      Appeal from County Court, Caddo■ County; . C. R. Johnston, Judge.

    George Childs was convicted of a violation of the prohibitory law, and he appeals.
    Modified and affirmed.

      C. H. Carswell, for plaintiff in error.

      S. P. Freeling, Atty Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, George Childs, was convicted on an information charging that he did on the 8th day of April, 1916, have possession of one gallon of whisky with the intent to barter,' sell, give' away, and otherwise furnish the same in violation of law. The jury failed to agree upon the punishment. On December 1, 1916, the court rendered judgment and sentenced him to be imprisoned in the county jail for 90 days and to pay a fine of $200.

The evidence shows that the defendant is a farmer and stockman, living near Gracemont, where he had been dealing in live stock for ten years and a part of the time running a butcher shop in Gracemont; that he received during the year seven one-gallon shipments of whisky, the last one on the date alleged in the information; that Ed Marolf, Vince Feaster, J. P. McAdams, and B. J. Hickman went to his farm that day and there drank three pints of whisky at his barn; that they chipped in money amounting to a dollar and fifty cents, and one of the party threw this money on the floor of the barn as they were leaving.

As a witness in his own behalf, the defendant testified .that the whisky these men drank belonged to Mr. Row, ■ his hired hand; that he refused to accept any pay for it and did not receive any money for this whisky from any one directly or indirectly.

His cross-examination was, in part, as follows:

“Q. Were you not convicted of selling intoxicating liquor while I was county attorney? A. No, sir. Q. Now, didn’t the jury bring in a verdict against you for selling liquor? Q. Yes, sir; and when you found out it was on perjury you dismissed the case.”

In rebuttal the assistant co,unty attorney was sworn as a witness. He was asked:

“Q..You heard Mr. Childs’ testimony in regard to certain cases against him. I will ask you whether or not you dismissed that case on account of lack of evidence.”

(Objected to as being incompetent; that the evidence in regard to this conviction six years ago is not competent; that the verdict was set aside and this evidence is prejudicial and should be stricken.) The objection was sustained.

Commenting on this testimony, the county attorney in his argument to the jury said:

“These facts show that the defendant is an old hand at the job and has been bootlegging since statehood, and that the penalty under the law is not sufficient to punish him in this case.”

Counsel for the defendant contends that the court erred in permitting the prosecuting attorney to ask the defendant about a former trial where .the verdict had been set aside, and that the remarks of the county attorney were prejudicial to the substantial rights of the defendant.

We think that the county attorney had no right to ask the defendant about his former trial, because it was admitted that the verdict was set aside. Under the statute a witness can only be asked if he had been convicted of a crime. Obviously the remarks of the county attorney were not warranted by the evidence and were plainly calculated to prejudice the defendant; yet no proper objection was made, and the court was not asked to instruct the jury not to consider these remarks.

By numerous decisions of this court it is held that a prosecuting attorney should confine his argument before the jury to a fair discussion of the issues of the case, and improper remarks objected to at the time will be considered and construed in Reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted. Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622, and cases cited.

In this case the defendant as a witness, did not deny that whisky was furnished to the witnesses for the state in his presence and on his premises, as testified to by them. He merely states that he did not sell and did not accept any money for the whisky. However, in view of the facts of the case and the errors complained of, we are of the opinion that substantial justice requires a modification of the punishment imposed. It is therefore ordered that the judgment and sentence be modified to 30 days’ confinement in the county jail and a fine of $50. As thus modified the judgment will be affirmed. ■

ARMSTRONG and MATSON, JJ., concur.


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    TOM WARD v. STATE.
    No. A-2963.
    Opinion Filed September 28, 1918.
    (175 Pac. 60.)
    1. INTOXICATING LIQUORS — Illegal Possession — Evidence. To justify or sustain a conviction of having possession of intoxicating liquors with intent to violate any of the provisions of the prohibitory law, there must be evidence sufficient .to prove possession, and also evidence of the" criminal intent. Where the verdict is manifestly contrary to the evidence, the judgment of conviction will be reversed.
    2. SAME. See opinion for facts held insufficient to support a conviction for the offense of having possession of intoxicating liquors with intention of violating provisions of the prohibitory law.

      Appeal from County Court, Carter County; Thos. W. Champion, Judge.

    Tom Ward was convicted of having illegal possession of intoxicating liquors, and appeals.
    Reversed.

      Champion & George, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and- R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a judgment of the county court of Carter county, wherein the plaintiff in error was sentenced to pay a fine of $100 and .to be confined in the county jail for 30 days.

The information charges that Tom Ward and Harris Coats did have in their possession 24 pints of whisky and four gallons of alcohol with thé unlawful intent to sell the' same. The evidence for the state was substantially as follows: Horace Kendall, deputy sheriff, testified that on the day alleged he went to Tom Ward’s home, near Lone Grove, with Joe Lathrop, John Ginn, and one Brooks, and they found the intoxicating liquors in a hole in a woodland pasture 200. yards from the defendant’s housfe; that the defendant Ward was not there; that the defendant Coats was at the house; that they arrested Coats and returned-to Ardmore. To the same effect was the testimony of Joe Lathrop. The defendants demurred to the evidence, and moved the court to advise the. jury to acquit the defendants, on the ground that the evidence was insufficient to warrant a conviction, which was overruled.

As a witness in his own behalf the defendant Ward testified that he had lived around Ardmore for 27 years, had never sold any whisky, and knew nothing about the whisky and' alcohol in question, or where it was found; that he was not at home,when the officers searched his place. The defendant Coats testified that he was employed by the Ardmore Construction Company; that Tom Ward was his uncle by marriage, and he was visiting at Ward’s when the officers found the whisky in the wood pasture; that he did not know who put the whisky there, and he had never sold any whisky. Emma and Julia Ward, daughters of Tom Ward, testified that .they lived with their father, and that they knew nothing about the whisky that was found in the wood pasture near their home; that their father had never handled or sold any whisky.

By their verdict the .jury acquitted Harris Coats, and found Tom 'Ward guilty, and fixed his punishment at 30» days’ confinement in the county jail and $100 fine. The Attorney General has very properly filed a confession of error, for the reason that the evidence is insufficient to sustain the verdict.

Viewing all the testimony in this case, it is apparent that the evidence does not support the verdict, for the reason that no actual or constructive possession by the defendant of the intoxicating liquors as alleged has been shown. It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Whether, however, the state fails to offer any evidence tending to prove the offense charged, or. whether the evidence offered tends to prove anything pertinent to the issue, is a question of law for the court, and where there is an entire absence of evidence tending to identify the defendant with the commission of the offense charged in the information, the court should direct a verdict of acquittal. Ren v. State, 9 Okla. Cr. 671, 132 Pac. 1131. Defendants should not be convicted upon mere suspicions of guilt, or even strong-probabilities of guilt. To warrant their conviction, the testimony, when all considered, should be clear and convincing, entirely satisfying the minds and conscience" of the jury.

For the reasons stated, the confession of error is sustained, and "the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.


text:
    JESS BROWN v. STATE.
    No. A-2937.
    Opinion Filed September 29, 1918.
    (175 Pac. 66.)
    1. CONTINUANCE — Discretion of Trial Court. Applications for continuance on the ground of absent witnesses are addressed to the discretion of the trial court, and a judgment of conviction will • not be disturbed on appeal unless there appears to have been a manifest abuse of such discretion.

      2. SAME — Absent Witnesses. Where a continuance is asked on account of the absence of a sick witness, there should be a showing that the witness is sick, and unable to attend the trial, and also that there is a reasonable probability that such witness will be able to attend at the time or term to which a continuance is asked. Where there is no such showing, there is no abuse of discretion in overruling the motion.
    3. HOMICIDE — Self-Defense—Instructions. Certain instructions on the law of self-defense examined, and held erroneous and prejudicial to the defendant in this case.

      Appeal from District Court, Hughes County; George C. Crump, Judge.

    Jess Brown was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years in the penitentiary, .and he appeals.
    Reversed.
    Statement of the Case.
    J. B. Eaton was shot and killed by the defendant, Jess Brown, in Hughes county, Oklahoma, at the defendant’s home, on September 12, 1916. The shooting took place at the south side of the defendant’s house. Only one shot was fired.
    The defendant, Jess Brown, was a farmer, 21 years old, and had lived in Oklahoma nearly all his life, in Hughes county for about four years. At the time of the killing, he had a wife and one child living with him, and he was living in a house on the farm of the deceased, which he had previously rented from the deceased. His reputation in the neighborhood for being a peaceful and law-abiding citizen was good.
    J. B. Eaton, the deceased, was 46 years old, and had been living on his farm, near the town of Allen, four or five years previous to his death. There was a conflict in the testimony as to whether the reputation of the deceased for peace and quietude was good. Witnesses for the defendant testify that such reputation was bad, while other witnesses in rebuttal on behalf of the state testify that it was good. The consensus of opinion of these witnesses, however, was that the deceased was a quarrelsome man, but not dangerous. The evidence shows that the defendant and the deceased had been on friendly terms up until a few days before the homicide. The homicide occurred on Tuesday morning. On the Saturday previous, the deceased had gone to the defendant’s home and offered an insult to the defendant’s wife. When the defendant came home from work on Saturday evening, his wife informed him that the deceased had been at the house and had insulted her, detailing to the defendant the substance of what the deceased had done and said. This narrative apparently angered the defendant, and he immediately repaired to the deceased’s house, a short distance away, armed with a shotgun, and a conversation took place between the defendant and the deceased at that time and place. In this conversation the deceased did not deny that he had been to defendant’s home when accused thereof by the defendant, attempting to paliate such offense by saying to the defendant, “All men have their faults, and he reckoned that was his reason.” The defendant cursed the deceased and told him that he was “no man”; but nothing of a serious nature happened at that time, as the defendant’s wife had followed him over there, and called him away, and the defendant followed her back to his home.
    After all this occurred, the proof on the part of the defendant • and his witnesses is to the effect that the defendant immediately got ready to leave the place where he was living and secure another house to live in. He and his wife did not stay in the house on Eaton’s place after what had occurred there on Saturday. They went over to the home of the father-in-law of the defendant and stayed there. After several unsuccessful attempts to procure another house to live in, the defendant ■ finally bought a tent to live in, and was going to erect the tent on land owned by his father-in-law, some two miles distant from the deceased’s farm.
    There is also evidence in the record on behalf of the defendant that the deceased was in the town of Allen on the Saturday afternoon before the killing, and proposed to sell his place to Sam Forney, a lumberman living in Allen, and gave as his reason for wanting to sell out that he. was in trouble with Jess Brown, and might have to kill him over family troubles. • On the morning that the killing took place, the defendant and two of his relatives were over at the house of the defendant for the purpose of moving the household goods. They had loaded one load on to a .farm wagon and these relatives of the defendant had taken the load away, the defendant staying at the house until they returned for another load. In the meantime the deceased, who was gathering corn not far from where the defendant lived, and just south of the house, apparently having seen the wagon drive off from the house, went up there to see what was happening, the deceased being accompanied by his 14-year-old son, Plato Eaton, who was the chief witness to the killing on the part of the state; the only other eye witness to the killing on the part of the state being the daughter of the deceased, who testified that she was standing on a wagon load of corn about 40 or 50 yards from where the killing took place.
    The testimony of these two witnesses is in substance as follows: That they and their father were gathering corn not far from where Jess Brown lived, and they saw Jess Brown and some ether men drive up to Jess Brown’s house, and begin to load a wagon, and then the wagon drove off; that the deceased said he believed he would go up and see if they shut the gates and moved out; that Plato Eaton went with the deceased; that the house that Jess Brown lived in was a two-room house facing west, a front room, and a back room; that the front door was closed; that the deceased went up to the front window, pulled the curtain back, one pane of the window being out, and looked through the .window, and then stepped back; that he saw the defendant leaving the house by way of the back door; that the deceased then came around the southwest corner of the house, had taken a step or two, and that the defendant appeared at the southeast corner of the house, and had taken a step or two toward the deceased; that the defendant' began cursing the deceased, and then shot him with a single-barrel shotgun; that the deceased then went toward the defendant, and defendant went around the house; that deceased then walked to the wagon and was driven home; that the deceased did not have a knife in his hand, and was not approaching defendant at the time he was shot.
    The daughter also testified that the deceased, at the time he was shot, had his left hand upon his left breast, with his right hand hanging to his side; that as soon as the defendant shot, the deceased dropped his left hand and put his right hand up to his breast.
    One witness on the part of the defendant testified that there were some high weeds between the house and the place where the daughter of the deceased claimed to have .seen the shooting, and that these weeds were thick and that it. probably would have been impossible for a person .standing where the daughter claimed to have been to see more than the top of the house.
    Another witness for the defendant also testified that after the deceased was taken home, witness carried him from the wagon to the house, and saw a knife in the right hand pocket of the deceased’s trousers, which knife was partly open.
    The defendant testified on his own behalf that there were weeds higher that a man’s head, which came within five or six feet of the house, and extended for about fifty yards in the direction of where the deceased’s daughter claimed to have seen the shooting; that these weeds were green, and that a person could not see through them. He also stated that he went back to the house on the morning of the killing, taking with him his brother Henry and one of his little brothers-in-law; that they went to the house about nine or ten o’clock in the morning, driving a wagon for the purpose of moving the household goods; that after the wagon was loaded, his brother and brother-in-law left with the wagon, and that the defendant went back into the house and was packing the other things when he heard someone talking in the front yard; that he recognized the voices as being those of the deceased and his son Plato; that the deceased pulled back the curtain of the window and looked in; that he immediately stepped back from the window and said, “The damn s. o. b. is in the house. We will go in and drag him out;” that the deceased was talking to his son Plato; that when the defendant heard that statement, he got his shotgun and went out the back door, because he thought deceased was coming in at the front door; that he listened to see where the deceased was after he stepped out the back door, and thought he heard the deceased coming around the north end of the house; that he, defendant, started around the south end of the house* and that when he got about the corner of the side room the deceased stepped around the southwest corner of the house with a knife'in his hand; thg.t the deceased was walking fast toward the defendant; that the knife the deceased had was open in his right hand, the blade pointing down; that the deceased’s left hand was up in front of his breast; that deceased did not stop when he saw defendant, but kept coming at him, and thereupon the defendant shot; that he shot because he thought the deceased was going to hurt him; that he believed his life was in danger; that he only fired one shot; that deceased kept coming, and defendant did not know that he had hit the deceased; that defendant,began running and deceased followed him; that defendant ran because deceased had gotten very close to him with the knife; that defendant retreated into the back yard to the fence, and deceased followed him as far as the back room, and then turned and went back; that defendant then went to the front end of the house and watched the deceased as he went back to the wagon; that the son of the deceased was not in sight at the time of the killing; that he shot deceased because deceased was coming on to him with a knife open in his right hand, and he was afraid of deceased, and had been for sometime on account of what he had heard about deceased being a dangerous man; that he did not shoot as quick as he saw the deceased, because he thought the deceased would stop; that the deceased appeared to be mad at the time and his face was white. •

      Anglin & Hall and J. L. Skinner, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above), it is first contended that the court erred in overruling the defendant’s motion for a continuance on account of the absence of one W. B.’ Baker, who, it is contended, was a material witness on the part of the defendant, in that the witness would testify that he was just over the fence from the scene of the difficulty at the time it occurred; that he saw Eaton come up to the defendant Brown’s house, and look into the defendant’s house through the window; that deceased turned with his knife in his hand and ran around to the south side of the house, and that after deceased had gone six or eight steps he was shot; that a few moments later deceased came back in sight of the window and went down to his wagon, which was one hundred yards from the house of the defendant; that' then the defendant came around to the north side of the house.

The record shows that the said Baker had been duly served with a subpoena, and that he was sick with pneumonia at the time of the trial. The defendant asked that the case be continued for the term, or until a later date in that term, so that the presence of this witness could be obtained in his behalf.

It appears from the affidavit in support of the motion for continuance that due diligence was used, in that the witness had been subpoenaed, and that it was through no fault or connivance of the defendant that he was not present at the time the case was called for trial; but on the other hand the affidavit is not supported by the certificate of any physician who was attending the sick witness as to his then physical condition. There is nó showing that he would be able to attend court at a later day in the term, or that his condition was such that he would likely recover, to be able to attend at the next term of court. Defendant did not ask that the witness be attached.

The facts set out in the affidavit that the witness would testify to as occurring within sight of the witness are practically uncontroverted, with the exception that the witness would testify that he saw a knife in the hands of the deceased. This, of course, was a material part of the testimony of the sick witness on behalf of the defendant, and would have tended strongly to corroborate defendant’s testimony. But this court has repeatedly held that applications for a continuance on account of absent witnesses are addressed to the discretion of the trial court, and that the ruling of the trial court on such a matter will not be disturbed on appeal unless there appears to have been a manifest abuse of such discretion. In this case we cannot hold that the trial court abused its discretion in overruling this application for 'a continuance, in the absence of any showing whatsoever that such witness would likely have been able to attend court at a later day in said term or at the next term thereof, or by a reputable physician that his condition of health was such as to prevent his attendance at the trial. Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183; Stephens v. State, 12 Okla. Cr. 90, 152 Pac. 138; Petty v. State, 11 Okla. Cr. 438, 147 Pac. 782.

It is our opinion, therefore, that no prejudicial error is shown in this respect.

It is. also contended that certain remarks of the trial judge, both during the hearing of the testimony in the presence-of the jury and later to the jury after the jury had reported an inability to agree upon a verdict, were seriously prejudicial to the substantial rights of the defendant.

In view of the disposition that is made of this appeal, it is unnecessary to pass upon these contentions further than to say that some of the remarks were unnecessary, even if not prejudicial, and it would have been much better had the court refrained from indulging in them. On the whole, however, we can see nothing in the action and conduct of the court that would authorize this court to. reverse this judgment on this ground.

Among other assignments of error relied upon for a reversal of this judgment is the giving, over the objection and exception of the defendant, of certain instructions by the trial court. Instruction No. 21 is as follows:

“You are further instructed that the defendant in this case has taken the witness stand in his own behalf and has admitted that he shot and killed the deceased, J. B. Eaton, but claims as a defense that the shooting and killing was done in self-defense; and 'you are charged that the law of self-defense is, that if a person is at a place where he has a right to be and is assaulted in such' a manner as to induce in him a reasonable belief that he is in danger of losing his life or receiving some great personal injury, he is justified in defending himself and using such force as it appears to him, under the circumstances, to be necessary to repel the attack, even to the taking of the life of his assailant; and in this case, if you believe from the evidence that the deceased went to the home ,of the defendant with an open knife, and by acts and' demonstrations which caused the defendant to believe, and he did in fact believe, that he himself was in danger of death or receiving great bodily harm at the hands of the deceased, and he shot the deceased in order to repel the attack and to keep the deceased from killing him, or inflicting upon his body great personal injury, then, in that event, the defendant would be justifiable in shooting the deceased, and you should find him not guilty.”

This instruction is erroneous, in that it places too great a burden upon the defendant to establish the defense relied upon, to wit, self-defense.

Section 5902, Rev. Laws 1910, provides:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden o'f proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Under the provisions of the foregoing section, it is incumbent upon the defendant, where the killing is admitted (as in this case), to prove circumstances that either mitigate, justify, or excuse it, unless, of course, the proof by the state only tends to show that the crime was manslaughter or that defendant was justifiable or excusable.

If the state’s case only makes the crime manslaughter, then mitigating circumstances by the defendant are unnecessary, but he may then accept the burden of justifying or excusing the killing; but if the state’s case proves murder, then the burden shifts to the defendant to either mitigate (that is, reduce to a lower degree of felonious homicide), justify, or excuse.

In the instant case, the proof on the part of the state would sustain a conviction of murder. The defendant made no attempt to mitigate the killing, but his defense alone was justifiable homicide on the ground of self-defense. He then accepted the burden placed upon him by section 5902, supra. But.the inquiry arises: How far does that burden extend? Is the defendant required to establish this affirmative defense beyond a reasonable doubt, or by the preponderance of the evidehée ? Evidently not, else the doctrine of reasonable doubt would become a nullity. He is only required to introduce such evidence as will raise in the minds of the j ury a belief that he acted in his own necessary, or apparently necessary, defense, or will create a reasonable doubt thereof. In either case he should be acquitted.

The foregoing instruction No. 21 is the only instruction given by the court which attempts to apply the law of self-defense to the facts in the case. As far as it goes, it contains a correct statement of the law; but the court should have added, “or if the jury entertain a x-easonable doubt of whether or not the defendant acted in his necessary, or apparently necessary, self-defense as herein instructed, they should acquit.” With such an addendum, the instruction would have been impervious to attack. But it is contended by the state that the general instruction given that “the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt” cured any defect or omission in instruction No. 21; that the instructions must be considered as a whole, and when so considered, if they correctly embody the law of the case, no error prejudicial to the defendant has occurred. That doctrine has 'been approved by this court in numerous cases, and it is not our policy to depart therefrom as a general principle. But “self-defense” is an affirmative defense; the statute places a peculiar burden upon a defendant in a homicide case where he attempts to justify a killing, and where the court by a separate instruction attempts to state the "law of that defense as applied to the particular facts of the case, the burden required of the defendant should be properly, safeguarded in the instruction itself. The jury is not required to believe such defense before an acquittal may follow; it is sufficient if such defense of itself raises a reasonable doubt of guilt, and in addition the jury may acquit if on the whole case a reasonable doubt of guilt exists. Such a doubt may arise from a consideration of all the evidence, and not necessarily from the defense interposed.

"When instruction No. 21, supra, is considered in connection with instruction No. 19, which is as follows:

“The important questions for the jury to determine are: Was the defendant at the time he fired the fatal shot in present danger of death or serious bodily harm? Were the circumstances such as to afford him reasonable grounds for believing himself to -be in such danger? Was the shooting done in good faith to protect himself from such danger or threatened danger?
“If these questions can be answered, in the affirmative, the shooting would be justifiable. The defendant, under the law, would have the right to defend himself from the appearance of danger the same and to the same .extent as he would were the danger real; and in passing upon the question as to the defendant’s right to act, the matter must be viewed from the standpoint of the defendant”

—how can it be said that too great a burden was not placed upon the accused to establish “self-defense” ? Through both instructions the court leads the jury to believe that the elements of self-defense must be “affirmatively” proven. The jury is told that the answers to the questions contained in instruction No. 19 must be in the affirmative before the defendant will be entitled to an acquittal. Such is not the law. If the defendant has raised a reasonable doubt of whether or not he acted in self-defense, the jury must not convict; or, as heretofore stated, if on the whole case a reasonable doubt of guilt- exists, the jury must acquit.

Instruction No. 14, also given over the objection and exception of the defendant, is erroneous, in that it places the burden upon the defendant to “use no more force than necessary to protect his own life or from receiving serious bodily harm at the hands of the deceased.”

Said instruction is as follows:

“You are further instructed that the defendant has interposed as a defense to the crime charged in the information what is known in law as self-defense; and in this connection you are instructed that to avail one of the right of self-defense, he must not be the aggressor, and if the defendant was in a place where he had a right to be, he may stand his ground if attacked by the deceased, and use all the force that reasonably appeared to him necessary to repel an attack or threatened attack, if any, by the deceased in order to protect his own life, or to keep from having inflicted upon his person serious bodily injury, and, if necessary, slay the deceased, provided he uses no more force than necessary to protect his own life, or from receiving serious bodily harm at the hands of the deceased.”

The defendant is not required to measure with exactness the force necessary to repel a felonious assault. He may be acquitted if in the exercise of reasonable judgment there was an apparent necessity for using the amount of force -employed by him. If the defendant exercises reasonable judgment and uses only such force as is apparently necessary to avert such danger (viewing the circumstances from defendant’s standpoint at the time of the killing), he has complied with the requirements of the law.

The latter-part of this instruction clearly robbed the previous statement “that defendant * * * may use all the force that reasonably appears to him necessary to repel the attack of deceased” of the meaning and effect it would have otherwise had, and tended to deprive the defendant of. the right to exercise reasonable judgment under all the circumstances as they appeared to him at the time. Contradictory statements in the court’s instructions, which are confusing and irreconcilable and one of which is erroneous, cannot be considered other than prejudicial. The appellate court cannot know whether the jury accepted and was bound by the, correct statement in the instruction, or acted upon the incorrect statement.

We believe these instructions in the forms given were prejudicial to the substantial rights of this defendant, and tended to place too great a burden upon him under the law. The case is closely contested on the facts. The state’s case would sustain a conviction of murder; but, on the other hand, if the defendant’s theory is correct, he was entitled to an acquittal.

In view of the fact that the jury found the defendant guilty of manslaughter, • can this court, under the circumstances of this case, say that the jury was not confused and misled by the contradictory and erroneous statements contained in the instructions? We believe not. It is apparent to our minds that the verdict reached must have been the result of confusion and misapprehension on the part of the jury as to the law of self-defense, and for this reason the judgment should be reversed and the cause remanded for a new trial.

DOYLE, P. J., and ARMSTRONG, J., concur.


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    ARTHUR McALESTER v. STATE.
    No. A-2927.
    Opinion Filed September 30, 1918.
    (174 Pac. 1106.)
    1. EVIDENCE — Accomplice’s Testimony. In a prosecution for having unlawful possession of intoxicating liquors, evidence held to show that a witness was an accomplice of the defendant.
    2. INTOXICATING LIQUORS — Unlawful Possession — Presumption. Three pints of whisky discovered at defendant’s home were not sufficient in quantity to raise a presumption that he had them for an unlawful purpose.
    3. SAME — Evidence. Proof of possession merely is not sufficient to authorize a conviction of having unlawful possession of intoxicating liquors.
    4. EVIDENCE — Accomplice’s Testimony — Corroboration. Corroboration of an accomplice not tending to connect defendant with commission of the crime of having unlawful possession of liquors, but merely tending to show that he had possession of whisky, held insufficient.

      Appeal from County Court, Stephens County; J. W. Marshall, Judge.

    Arthur McAlester was convicted of the crime of unlawful possession of intoxicating liquors and his punishment fixed at a fine of $100 and imprisonment in the county jail for 60 days, and he appeals.
    Reversed.

      J. B. Wilkinson, for plaintiff in error.

      ,S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The defendant, Arthur McAlester, was convicted at the October, 1916, term of the county court of Stephens county for the crime of unlawful possession of intoxicating .liquors, with intent to sell the same, and his punishment fixed as above stated.. He has appealed to this court and asks a reversal of this judgment, upon several grounds, among which are that the verdict and judgment are not supported b.y sufficient legal and competent evidence, and also because of error in the refusal of the trial court to grant a new tidal on the ground of newly discovered evidence.

We have examined the record and find that the conviction is based largely upon evidence given by one Ray Boyd, who testified in substance that he got four pints of whisky from the defendant with the understanding with the defendant that he (Boyd) was to sell the whisky and to bring the money back to the defendant, except that Boyd was to keep 25 cents for each pint sold; that Boyd was engaged in the business of running a little hamburger stand in the town of Marlow, said county, and the four pints of whisky which he claimed belonged to the defendant were found in his possession at the hamburger stand. When arrested, Boyd told the officers that the whisky belonged to McAlester, and a search warrant was issued for McAlester’s home, and three .pints of the same kind of whisky were discovered at, McAlester’s house. This was, in substance, all the evidence given in behalf of the state.

It is apparent that, from the testimony of Ray Boyd, he is an accomplice of the defendant. He is also the only witness who in any way attempts to establish the fact, if it be a fact, that the defendant had any whisky whatever with intent to sell the same. The three pints of whisky discovered at - the defendant’s home were not sufficient i'ii quantity to raise a legal presumption that he had the same for an unlawful purpose, and the prosecuting witness,Boyd, is nowhere corroborated by any competent evidence that tends to establish the fact that the defendant had any intention whatever to unlawfully sell the three pints of whisky found at his home, or any other whisky.

The corroboration of the accomplice is only to the effect that the defendant had three pints of whisky at his home. Proof of possession merely is not sufficient to authorize a conviction. Lindsey v. State, 9 Okla. Cr. 730, 132 Pac. 1194; Ren v. State, 9 Okla. Cr. 671, 132 Pac. 1131; Johnson v. State, 6 Okla. Cr. 490, 119 Pac. 1019; Guiaccimo v. State, 5 Okla. Cr. 371, 115 Pac. 129; Quinn v. State, 8 Okla. Cr. 478, 128 Pac. 1104.

The corroboration of the accomplice, therefore, did not tend to connect the defendant with the commission of the crime; it merely tended to show that he had possession of whisky, and the material element of the crime — that the intent of the defendant was unlawful — is established only by the testimony of the accomplice himself. We think, therefore, that, in the absence of other proof, the requirements of the law relative to the corroboration of an accomplice were not met in this case.

The defendant also filed an elaborate motion for a new trial on the ground of newly discovered evidence, and it is contended with considerable force and reason that the court should have granted a new trial on this ground. We believe that, had a new trial been granted, there is a .■reasonable probability that, with the newly discovered ¡evidence before another jury, a verdict of acquittal would have resulted.

After a full and careful consideration of the record in this case, the judgment of conviction is reversed, and the case remanded, with directions that the same be dismissed,. unless there may be discovered evidence corroborating the accomplice which tends to connect the defendant with an unlawful intent to dispose of the whisky found h. ms possession in violation of the law.


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    JOHN FRANKS v. STATE.
    No. A-2992.
    Opinion Filed October 1, 1918.
    (175 Pac. 60.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. Record and evidence examined and held sufficient to sustain a conviction for the unlawful possession of intoxicating liquors, and that no reversible error was committed on the trial.

      Appeal from- Superior Court, Muskogee County; H. C. Thurman, Judge.

    John Franks, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Crump, Bailey & Crump, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

John Franks, plaintiff in error, and G. C. Winford were jointly charged and tried on an information which, after alleging time and venue, charges that they did have possession of certain intoxicating liquors, to wit, 24 pints of whisky and four quarts of whisky, with the intention then and there of conveying, selling, bartering, giving away, and otherwise furnishing the same. The jury found the defendant Winford not guilty and the defendant Franks .guilty, and fixed his punishment at confinement in the county jail for four months and a fine of $250. From the judgment rendered in pursuance of the verdict, he appealed by filing in this court on April 26, 1917, a petition in error with case-made.

The only noticeable assignment of error is that the verdict of guilty is not sustained by sufficient evidence, and is contrary to law.

The evidence shows that the defendant’s place of business is in Muskogee, on -Cherokee street, adjoining Henry Nicholson’s building. One of the store rooms in this building was vacant, and another was occupied by the Hamlin meat market. On the date alleged in the indictment the defendant Winford carried a grip from the empty store room into- the meat market, which grip contained four quarts and 24 pints of whisky and was found there by the officers. The defendant John Franks was carrying the key to the empty store room.

Henry Nicholson testified that he asked the defendant Franks why he was using.the room to store whisky, and he answered that he had bought the whisky the night before and had stored it in the vacant room, and that he was willing to pay a month’s rent for the room.

Three or four witnesses testified that the defendant Frank’s place of business had the reputation of being a place where intoxicating liquors were sold.

The defendant Winford, generally known as “Old Man Winford,” testified that he was employed by the defendant Franks as a clerk, selling soft drinks; that he did not own the grip or its contents; that the defendant Franks told him to go into the store room and get the grip and carry •it into the meat market; that Franks did not tell him what was in the grip.

The defendant Franks, as a witness in his own behalf, testified that he.sold cigars and soft drinks at his place of business; that he was trying to rent the empty store room from Nicholson and found the grip containing the liquor there and told the defendant Winford to take it out of there because he had the key and did not want it in there; that Winford was employed by him at the time; that he did not say that he had bought the whisky the night before and placed it there.

An examination of the record discloses that the verdict is amply sustained by the evidence, and that the defendant has been afforded'a fair and impartial trial. The evidence tending to show the reputation of the place of business of the defendant Franks was competent and properly admitted. Finding no material error, the judgment appealed from is affirmed.

ARMSTRONG and MATSON, JJ., concur.


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    GUS TALKINGTON et al. v. STATE.
    No. A-2810.
    Opinion Filed October 5, 1918
    (175 Pac. 132.)
    1. ABATEMENT OF PROSECUTION — Death of Defendant. In a criminal action, the imrpose of the proceeding being to punisli the defendant in person, the action must necessarily abate upon his death: and where it is made to appear, that the plaintiff in error has died, pending the determination of his appeal, the cause will be abated.
    2. APPEAL AND ERROR — Acceptance of Parole — Dismissal. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined; and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

      Steve Talkington and Gus Talkington were convicted of violation of the prohibitory law, and appeal. Abated as to Steve Talkington, and dismissed as to Gus Talkington.

      James H. Mathers and Wm. Pfeiffer, for plaintiffs in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiffs, in error, Steve and Gus Talkington, were tried and convicted on an information jointly charging that they did keep and maintain a place, known as the Owl Cafe in the town of Wirt, Carter county, with the unlawful and felonious intention and purpose of then and there and therein selling, bartering, giving away, and otherwise furnishing to other persons intoxicating liquors, and did then and. there and therein keep and maintain fixtures, appliances, and a supply of such liquors for and with such felonious intention and purpose. The jury by their verdicts assessed the punishment of the defendant Steve Talkington at confinement in the penitentiary for a period of two years and a fine of $1,000, and the punishment of Gus Talkington at confinement in the county jail for one month and a fine of $100. From the judgments rendered on the verdicts an appeal was perfected.

Since the appeal was taken, and before the final submission of the cause, suggestion of the death of the plaintiff in error Steve Talkington has been made. 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 adjudged and ordered that all proceeding in this action be abated as to plaintiff in error Steve Talkington, with direction to the district court of Carter county to enter an order to that effect.

The Attorney General has also called to the attention of the court the fact.that plaintiff in error Gus Talkington has been granted'a parole by the Governor, which has been duly accepted by him. Where a plaintiff in error accepts a parole pending the determination of his appeál, he thereby waives the right to have his appeal determined; and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed. Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445.

It is therefore ordered that the appeal of the plaintiff in error Gus Talkington in this case be, and the same is hereby, dismissed.

ARMSTRONG and MATSON, JJ„ concur.