author: BES'SEY, J.

text:
    GEORGE DUNN v. STATE.
    No. A-3923
    Opinion Filed April 6, 1921.
    (196 Pac. 739.)
    (Syllabus.)
    1. APPEAL AND ERROR — Túne for Appeal — Felony—Judgment— Clerical Duties — Enforced Performance. An. appeal in a felony case must be taken within six months from the time the judgment is rendered, as distinguished from the tim,e of the recording of the.judgment by the clerk. As between ^the parties, the validity of the judgment cannot be avoided because the clerk failed to perform his ministerial duties in making up the record; and where, through the negligence or omission of the clerk, the judgment record is defective or incomplete, the court may at any time, upon a proper showing, require the clerk to make the record conform to the facts nunc pro tunc.
    2. SAME — Time for Appeal — Case Overruled. The rule announced in the ease of Schriebar v. State, 6 Okla. Cr. 119, 116 Pac. 348 that ihe time in which an appeal may be taken runs from the entry of judgment, as distinguished from the time of the rendition of judgment, as applied to: cases of the character shown by this record, will not be followed by this court, and to that extent the doctrine announced in the Schriebar Case is overruled.
    3. APPEAL AND ERROR — Appealable Orders — Nunc pro Tunc Orders. Applications for nunc pro tunc orders, and orders nunc pro tunc are not proceedings separate and distinct from the original actions, but are merely auxiliary to some action pending and, when pending on appeal they should be incorporated in the original appeal.
    4. CASES “PENDING” — Correction of Records. A criminal case is pending, in the sense that a court may correct its records, until the judgment is fully satisfied.
    5. APPEAL AND ERROR — Right of Appeal Lost by Estoppel-Judgment Entry Nunc Pro Tunc. In a criminal case, every defendant has a constitutional right of appeal; but the statutes regulate the time and manner of exercising that right. The defendant may lose his right of appeal by waiver or estoppel or by failure to perfect or prosecute his appeal, and, once having waived or forfeited that right, he cannot have it revived out of time by resisting an order directing an entry of judgment nunc pro tunc. -

      Appeal from District Court-, Tulsa County; Redmond S. Cole, Judge.

    George Dunn was convicted of larceny of an automobile, and he appeals.
    Appeal dismissed.

      D. B. Crewson and R. M. Dick, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BES'SEY, J.

On the 80th day of April, 1917, the defendant filed his motion for a new trial, which was on the same day heard and overruled, and the defendant was sentenced to imprisonment in the state penitentiary for a term of two years. Defendant gave notice of an appeal, and was given 90 days to make and serve a case-made. The amount of the supersedeas bond was fixed at $2,500, to be approved by the clerk. Later the time for making and certifying the case-made was extended for a further period of 60 days, the supersedeas bond was- made and approved -by the clerk, and the defendant was given his liberty.

The appeal was not perfected by filing the case-made within the time allowed by the court, nor by transcript within the time provided by law. On the 25th day of January., 1921, the defendant’s bond was forfeited and later the defendant was apprehended, and the county attorney, preparatory to the execution of the sentence, made application to the court for a nunc pro tunc order for a judgment entry in accordance with the verdict and sentence of the court. This motion was resisted by the defendant, who made a motion to strike the state’s motion from the files, which motion to strike was by the court heard and overruled. All parties being present, the motion for a nunc pro-tunc order was heard and proof submitted upon the uestion as to whether-in fact a judgment and sentence had been rendered, although no formal entry had been made by the clerk, though the clerk’s minutes and other portions of the record indicated that a judgment and sentence had in fact been rendered. The motion for a nunc pro tunc order was sustained February 7, 1921, and judgment nunc pro tunc, as of April 30, 1917, ordered entered accordingly.

On February 9, 1921, the defendant filed a motion in arrest of judgment, which was by the court overruled. On the same day the defendant filed a motion for a new trial, which was likewise overruled. The defendant then gave notice of an appeal from the judgment entered nunc pro tunc, and asked time to prepare and serve a case-made, which was by the court denied. On February 21, 1921, defendant filed in this court a transcript of the record below, with a petition in error attached, and on February 21, 1921, defendant also filed in this court a motion asking this court to fix an appeal bond, pending further proceedings on appeal. By agreement of parties, this motion "was heard and is now before this court for consideration.

In order for this court to pass upon the question of the appeal bond, as prayed for in the motion filed in this court, it becomés necessary to determine the defendant’s right to appeal at this time from the judgment and sentence nunc pro tunc. The Constitution of this state gives to every defendant in a criminal case the right. of appeal. The statutes provide the method and' time of exercising this right. .Section 5988, Rev. Laws 1910, provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, ány decision of the court, or intermediate order made' in the progress of the case may be reviewed.”

Section 5991 provides for the time in which this appeal shall be taken, as follows:

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

The appeal is from the judgment against the defendant, and in a felony ease must be taken within six months from the time the judgment is rendered. It will be noted that the word “rendered” is used in the statute, but the defendant in this ease contends that the statute contemplates that the time in which an appeal may be tak'en should be reckoned from the time the judgment was entered mine pro tunc.

It is not for this court to construe into a plain, unambiguous statute provisions not therein expressed, for the reason that, in the view of the court, the statute should contain other or modifying provisions.. IThe Legislature could as easily have provided that the time should run from the day the clerk made the judgment entry, but it did not do so. The clerk’s record is the best evidence of the judgment and sentence, but if this record is incomplete, but enough appears to indicate the scope of the judgment rendered, the omissions can be supplied by appropriate orders of the trial court, or by application to this court. The validity of the judgment cannot be avoided as between the parties because the clerk failed to perform his ministerial duties in making up the record.

In ordinary legal parlance judgment and sentence have the same meaning, and where, through the negligence or omission of the clerk, the judgment record is defective or incomplete, the court may, upon a proper showing, require the clerk to make the record conform to the facts. Petition of Breeding, 75 Okla. 169, 182 Pac. 899; Ex parte Lyda Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840, 17 C. J. 32, title, “What Constitutes Final Judgment”; 8 R. C. L. 246; 16 C. J. 1266.

The court decisions from other states, holding that the time for taking an appeal dates from the entry of judgment, are due to the fact that in many states the statutes provide that the time shall run from the date of the entry and recording of the judgment. For a discussion of these cases see notes and annotations to In re Weber, 28 L. R. A. 621. But these decisions are entitled to no weight where the statutes provide, as they do in this state, that the time for taking an appeal shall run from the date of the rendition of judgment.

The transcript of the proceedings before us discloses that under, date of April 30, 1917, there was recorded in Journal No. 10 of the trial court, at page 236, the following :

“Defendant present in person and'¡by counsel; motion for new trial overruled; defendant excepts; defendant sentenced by thé court to two years in the state penitentiary at hard labor, sentence to start on arrival at the penitentiary. For good cause shown defendant given ninety days to make and serve case-made, ten days to suggest amendments, to be settled on five days’ notice. Bond fixed at $2,500, to he approved by the clerk of this court. Defendant given twenty days to file bond.”

This record, together with the other testimony taken in support of the county attorney’s motion for a nunc pro tunc order, satisfies this court beyond all doubt that a judgment of conviction was in fact pronounced. The order nunc pro tunc was not predicated upon a mere presumption that a judgment should have been rendered, but was based on facts recited in the record, showing that such judgment had actually been rendered; and the nunc pro tunc order iwas made for the purpose of causing the record to show in greater detail what judgment had actually been pronounced. Ex parte Howard, 2 Okla. Cr. 563, 103 Pac. 663.

Section 5960, Rev. Laws 1910, provides:

“When judgment upon a conviction is rendered, the cierk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:

“First. The indictment and a copy of the minutes of the plea or demurrer.

“Second. A copy of the minutes of the trial.

“Third. The charges given or refused, and the in-dorsements, if any, thereon; and,

“Fourth. A copy of the judgment.”

Applying this statute to the state of the record here, there is a sufficient showing that a judgment was rendered. If the defendant has any cause of complaint, or desires to contest the facts recited in a nunc pro tunc order, in a case, where an appeal is then pending, he may raise those questions in an ancillary proceeding in the appellate court; if the case is not pending on appeal, such questions may be reviewed in an appropriate original proceeding in a mandamus, certiorari, or habeas corpus. Applications for nene pro tunc orders apd orders nunc pro tunc are not proceedings separate and distinct from the original actions, but are merely auxiliary to some action pending, and when pending on appeal they should be incorporated in the original appeal. Petition of Breeding, 75 Okla. 169, 182 Pac. 899; Schoonover v. B. & O. Ry., 69 W. Va. 560, 73 S. E. 266, L. R. A. 1917F, 1, Ann. Cas. 1913B, 964.

A criminal case is pending, in a sense that a court may correct its record's, until the judgment is fully satisfied. Ex parte Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840.

We have not overlooked the decision of this court in the case of Schriebar v. State, 6 Okla. Cr. 119, 116 Pac. 348, where the court makes the following declaration:

“It is the duty of a trial judge to pronounce judgment in accordance with the verdict of the jury, and cause the same to be entered in the journal of the court. It is necessary for such judgment to be entered as provided by law, before an appeal can be taken to this court. When the trial court fails to enter judgment as provided by law until after the time fixed by the statute in which an appeal can be perfected, and then does so by a nunc pro tunc order, an appeal may be taken in the manner provided by statute, from the date the nunc pro tune order is made.”

In the instant case an appeal was prayed for, and time was asked and given in which to prepare and serve case-made, and a supersedeas bond was given, by means of which the defendant was given his liberty, pending this appeal: while, in the Schriebar Case, above cited, there was no attempt to take an appeal until after the rendition and entry of the order nunc pro tune, which was more than four months after the trial. In the Schriebar Case there was a verdict of conviction, but no showing that a judgment had been pronounced or entered at that term. A motion for a neiw trial had been filed, but the motion had not been heard or considered. At a subsequent term, more than four months later!, a motion was filed asking that a judgment nunc pro tunc foe entered, which motion was sustained and judgment nunc pro tunc rendered and entered accordingly. In the Schriebar Case it seems that the judgment was neither rendered nor entered' until done so nunc pro tunc.

iThe reason given by the learned judge who wrote the opinion in the Schriebar Case. as to why the time for an appeal should run from the date of the entry of judgment, in which he stated in substance that if the rule were otherwise an arbitrary, careless, or corrupt judge or clerk could defeat an appeal by failing or refusing to make a record, is not in keeping with our statute, and will not bear the test of sound reason. There are methods available by which a defective or incomplete record may be corrected, either by the trial court or by the appellate court, on appeal. On the contrary, if an appeal lies at any time a nunc pro tunc order is allowed or refused, by this means an arbitrary, careless, or corrupt judge or clerk could extend the time of taking an appeal in any case indefinitely. In the Lyda Howland Case, supra, the nunc pro tunc order was made seven years after trial. Could it be contended that seven years after trial she could in this manner open up her whole case by an original appeal to this court? Oúr statutes provide that the appeal is from the judgment “rendered,” and not from an order directing its entry, and the time in which an appeal lies dates from the rendition of judgment, and not from the date of its entry. .Sections. 5988 and 5991, Rey. Laws 1930.

The opinion in the Schriebar Case, holding that the time for an appeal began to run from the date ot the rendition and entry of .the judgment nunc pro tunc, under the peculiar conditions existing in that case, may have been correct, because the rendition and entry of judgment in that case werp both made at the same time, at a subsequent term of court. But we think that the broad abstract declaration made by the learned judge in his opinion, that no appeal lies in any case until after formal entry of judgment by the clerk, was incorrect and inadvertently made, and is in conflict with the plain provisions of our statutes and with the long established practice of our courts and the courts of other states having similar statutes. The rule that the time in which an appeal may be taken runs from the entry of judgment, as distinguished from the time of the rendition of judgment, as applied to cases of the character shown by this record, will not be followed by this court, and to that extent the doctrine announced in the Schriebar Case is overruled.

Moreover, a person having a right of appeal may lose that right by waiver or estoppel. In this case an appeal was originally prayed for and granted, the defendant thus admitting that a judgment and sentence against him had been rendered. Time was given and extended in which to prepare an appeal. The court fixed the amount of the supersedeas bond, which wias. by the defendant executed and approved by the clerk, and the defendant was given his liberty pending the appeal. The defendant could perfect and prosecute his appeal, or he could abandon and waive it, as was done in this case. For nearly four years the defendant has been at liberty, by reason of his appeal bond. By his own actions he is clearly estopped from claiming that he has been deprived of his right of appeal. Having once waived this right, he cannot have it revived by resisting ancillary orders subsequently made. Bloodsworth v. State, 10 Okla. Cr. 97, 133 Pac. 1131; Barnes v. Lynch, 9 Okla. 11, 156, 59 Pac. 995; 3 C. J. 664, and cases there cited.

Since the original appeal in this case was abandoned, and the latter attempted appeal was not filed within the statutory period from the rendition of judgment, the appeal is dismissed and a mandate ordered, directing execution of the judgment and sentence of the court.

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    JOHN BRADLEY et al. v. STATE.
    No. A-3646
    Opinion Filed April 9, 1921.
    (196 Pac. 730.)
    (Syllabus)
    1. BURGLARY — Sufficiency of Evidence. For evidence examined and held sufficient to sustain a conviction of burglary in the second degree, see body of opinion.
    2. TRIAÍL — Requested Instructions Applicable. Instructions; requested must be applicable to the evidence. The trial court is not compelled to give any certain requested instruction, although it may state a correct proposition of law, where there is no evidence upon which to base the request.
    3. BURGLARY — Second Degree — Evidence. Defendant’s recent possession of property shown to have.been stolen at the same time and from the same place of the alleged burglary is. a circumstance which the jury may weigh and consider in connection with all the other facts and circumstances in the ease. For instruction given on this subject, and held to correctly state the law and sufficiently cover the evidence in this case, see body of opinion.

      Appeal from District Court, Kiowa County; Thomas A. E&oards, Judge.

    John Bradley and another were convicted of burglary in the second degree, and they appeal.
    Affirmed.

      George W. Martin, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

John Bradley, Frank Hendricks, and Ed Anderson were jointly charged by information in the district court of Kiowa county with the crime of burglary in the second degree, alleged to have been committed in the month of November, 1918, by breaking into and entering the store building owned and occupied by H. H. Wedel in the town of Gotebo, in Kiowa county, Okla., in which certain goods, wares, and merchandise belonging to and owned by the said Wedel . were then and there kept, and with the intent on the part of the said defendants to steal said goods, etc. Upon a joint trial each of the defendants was found guilty as charged, and the punishment fixed as to Bradley at 3 years’ imprisonment in the state penitentiary, as to Hendricks at years’ imprisonment, and as to Anderson at 2 years’ imprisonment.

Defendants Bradley and Hendricks prosecute a joint appeal from the judgments rendered against them, and apparently rely for a reversal: (1) Upon the refusal of the trial court to give instruction No. 2, requested by counsel for defendants, and (2)- upon the insufficiency of the evidence to sustain the conviction.

The evidence is substantially as follows: In the latter part of the month of October, 1918, the storeroom of H. H. Wedel, located in the town of- Gotebo, Kiowa county, Okla., was broken into, between closing, time Saturday night and the opening Monday following, and a considerable quantity of merchandise stolen theréfrom. Wedel conducted a general merchandise store, carrying, among other things, groceries, dry goods, and clothing of all kinds.

The defendants Hendricks and Anderson were sons-in-law of the defendant Bradley. Bradley at that time lived in the town of Gotebo and Hendricks had occasionally lived with him. The evidence discloses that they had each done more or less trading at Wedel’s store, considerably more during the year 1917 than during the year 1918.

In the month of December, 1918, defendant Anderson was apprehended in the city of Oklahoma City, taken to the county attorney’s office there, and subjected to an examination relative to this alleged burglary, and in the presence of some officials of Oklahoma county, as well as in the presence of some detectives employed by Wedel, Anderson made a confession to the burglary, and implicated therein defendants Bradley and Hendricks. In this alleged confession, Anderson detailed the manner in which the burglary was accomplished; he was discovered in possession of some property which was after-wards identified as having ¡been taken from the Wedel store.

Immediately after Anderson’s confession, seach warrants were obtained for the Bradley and Hendricks premises in Kiowa county. Upon these searches, a considerable quantity of merchandise, identified by Mr. Wedel and some of his clerks as being property stolen from the Wedel store when it was burglarized in October, 1918, was found. This merchandise consisted of bolt dress goods, shoes, groceries, and some cured meat. A larger quantity was discovered at the home of Bradley than at the home of Hendricks. Some of it -was concealed between the bed clothing, and in other places around the premises.

After the discovery and identification of this property, prosecutions were instituted against these defendants, charging them with this burglary. The evidence discloses that upon arraignment in the court of the examining magistrate upon this offense, each of these defendants announced when the charge was read to them that thejj were guilty thereof, waiving arraignment, without the benefit of counsel, although they were told that they were entitled to have counsel.

None of the defendants took the 'witness stand upon the trial. The evidence in their behalf consisted of some witnesses as to their previous general reputation for honesty and as law-abiding citizens, and in addition thereto certain checks were introduced, given by defendants Bradley and Hendricks. The possession of part of the the town of 'Gotebo for merchandise purchased during the years 1917 and 1918.

The foregoing is a concise statement of the material evidence in the case. There were other minor details which we deem it unnecessary to state, and which we consider do not involve the merits of the question of the sufficiency of the evidence.

The foregoing statement of the evidence we think clearly discloses facts and circumstances authorizing the jury to return a verdict of guilty against defendants, Bradley and Hendricks to Wedel and to other merchants in goods stolen at the time of the burglary in these defendants, concealed upon their premises, the nature of this property, together with the undisputed admission of guilt in the examining magistrate’s court, would impel an honest trier of the facts under the obligation of his oath to return a verdict of guilty. Especially is this conclusion forced upon the court where none of the defendants made any attempt to explain these incriminating circumstances and admissions.

The instruction, requested and refused is as follows :

“Gentlemen of the jury, you are instructed that mere possession of recently stolen goods is not evidence of guilt of burglary of the place- where they were kept, unless it was shown that the burglary and stealing of the goods at the time -the entry was alleged to have been made were part of the same transaction.”

In this connection, the court gave the following instruction :

“You are instructed that when the fact of a burglary has been shown and the question is whether or not the defendants committed it, their possession, at a time not too long after the burglary, of property shown to have been stolen at the same time and from the place, of the burglary, is a circumstance for the jury to weigh and consider in connection with all the ..other facts and circumstances in the case. The significance of such possession will vary with its special facts and with the other facts in the case, among which are the nearness or remoteness of the proven possession to such burglary, the nature of the property as passing readily from hand to hand or not, together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendants.”

It has been repeatedly held that the instructions must be applicable to .the evidence. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124; Williams v. State, 17 Okla. Cr. 375, 188 Pac. 890.

The trial court is not compelled to give any' certain instruction requested by defendant, although it may staté a correct proposition' of law, where there is no evidence upon which to base the request. In this case, all the evidence introduced on the subject of the larceny of the property was to the effect that much of the goods and merchandise found in the possession of these defendants was taken from the Wedel store at the time it was burglarized in the month of October, 1918. That defendant’s recent possession of property shown to have been stolen at the same time and from the same place of the alleged burglary is a circumstance which the jury may weigh and consider in connection with all the other .facts and circumstances in the case is a well established rule of evidence' in burglary cases. 4 R. C. L. 440, sec. 34.

We deem the law relative to the possession of property taken, in a burglary stated in No. 10 of the general charge of the court to be correct and sufficient to cover the evidence in this case.

The proof of the guilt of these defendants is not only strong but practically conclusive.

The judgments are affirmed.

DOYLE, P. J„ and BESSEY, J., concur.


author: PER CURIAM.

text:
    OFA BROWN v. STATE.
    No. A-3553
    Opinion Filed April 9, 1921.
    (196 Pac. 967.)
    (Syllabus.)
    1. INTOXICATING LIQUORS — Unlawful Conveyance — Proof. Where an information for conveying intoxicating liquor from one place within the state to another place therein, alleges a removal from one particular place' to another particular place, it is essential to sustain a conviction that the state prove the conveyance as alleged.
    2. EVIDENCE — Confessions—Corpus Delicti. Where the state relics in part for a conviction on a purported extrajudicial confession of defendant, there must be other proof of the corpus de-licti, either direct or circumstantial, before a conviction can be sustained.
    3. INSUFFICIENCY OF EVIDENCE. For reasons given, holding the evidence in this case insufficient to "support the conviction, see body of opinion.
    4. APPEAL AND ERROR — Reversal—Evidence of Other Offenses. This ’court is powerless to affirm a conviction for one offense, where the proof establishes another and separate offense, not included within the charge.

      Appeal from County Court, Logan County; A. H. Boles, Judge.

    Ofa Brown was convicted of unlawfully conveying intoxicating liquors, and appeals.
    Reversed and remanded.

      E. C. McAdams, for plaintiff in error.

      S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ofa Brown, hereinafter designated defendant, was convicted in the county-court of Logan county of the crime of unlawfully conveying intoxicating liquors, with the punishment assessed at a fine of $450 and imprisonment in the county jail for a period of five months. From this judgment of conviction he has appealed to this court, and among other errors assigned it is contended that the evidence wholly fails to establish the material elements of the offense as alleged, beyond a reasonable doubt.

The information charges defendant with the conveyance of 180 quarts of whisky from one place within the state of Oklahoma to another place therein, to wit:

“From a point on the north line of said Logan county to a place two miles south of the town of Marshall, between sections 15 and -16, township 19 north, range 4 west of the Indian meridian, by then and there transporting and conveying said whisky in a light Buick Six roadster, 1917 model, with an Oklahoma tag No. 985.21,'’ etc.

The only evidence introduced by the state to establish the allegation that defendant conveyed said whisky from a point on the north line of Logan county to a place two miles south of the town of Marshall was testimony, in substance, to the effect that defendant was found in possession of a light Buick Six roadster, of the description alleged in the information, which was loaded with about 150 to 175 quarts of whisky, and which car was broken down about two miles south of the town of Marshall, in Logan county, headed south on a public highway, and that defendant stated to the officers who arrested him that he had come from Joplin. Outside’ of defendant’s statement to the effect that he had come from Joplin, there is an entire absence of evidence that defendant conveyed said whisky from the north boundary of Logan county to the point where the same was found in his possession.

There is no evidence in the record as to what direction such automobile was driven to reach the point where it was found; whether it came from the north, south, east, or west is not disclosed by the record. There is no proof as to the location of the various highways leading up to the point where this automobile was first discovered. To sustain the allegation in the information, the proof should have shown that the automobile was driven from a point on the north boundary of Logan county south to the place where the automobile was found. If there had been proof that there were no public highways leading off, either in an easterly or a westerly direction, from the highway on which this automobile was found between that point and the north boundary of Logan county, the automobile having been found headed south, the reasonable and proper inference would have been, considered with defendant’s statement that he had come from Joplin, that the conveyance was in the manner alleged in' the information; but, in the absence of such circumstantial evidence, can it be said that the circumstances are such as to exclude an inference that defendant came into the public highway upon which the car was found from some direction and upon some road which did not cross the north boundary line of Logan county?

It is a well-established principle of law that, where circumstantial evidence is relied upon for a conviction, the circumstances must be such as to exclude every other reasonable hypothesis than that of the guilt of defendant. In De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, this court in discussing the necessary allegations of an information or -indictment for conveying intoxicating liquors, said:

“An information or indictment for transferring liquor from one place in the state to another place therein must show upon its face a removal from one locality in the state or city or county to another locality in the state or in the city or county. If these different localities are known, they should be stated; if not known, this should be stated; and it should be ma,de to appear that the removal came within the meaning of the law.”

'From the decisions of this court construing indictments or informations for conveying intoxicating liquors, it is clear that the indictment or information must show upon' its face the particular place in the state, city, or county from which said liquor was conveyed, if such place is known; and, if not known, this should be stated. It follows that, in order to avoid necessity of proving the particular place from which the conveyance was made, such place must have been unknown to the informant. It became material, therefore, in this case, to prove the removal of the liquor from the north boundary line of Logan county, as alleged, to the place where the automobile was found broken down.

In the case of Hamil v. State, 8 Okla. Cr. 119, 126 Pac. 591, it is held:

“To sustain a . conviction of crime, each and every 'material element must be supported by the evidence.”

In the case of Henry v. State, 14 Okla. Cr. 189, 169 Pac. 658, it is held:

“In a criminal case a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti; but direct and positive proof of that fact is not indispensable.”

If the statement of defendant that he had come from Joplin be considered an extrajudicial confession upon his part, which we do not hold, still, independent of such confession, before a conviction would be authorized, there must be proof, either direct or circumstantial; that the conveyance of such liquors was made, ás alleged in the information, from a point on the north boundary line of Logan county. There is no direct evidence to this effect, and, as heretofore stated in this opinion, the inferences deduciblfe from the circumstance that the automobile was found headed south, broken down, at a point about two miles south of the town of Marshall are not conclusive that in arriving at said point defendant drove said automobile loaded with such whisky from'a'point on the north line of Logan county.

In this case the Attorney General has filed a written confession of error, admitting that the material allegation of the information that the liquor was conveyed “from a point on the north line of said Logan county” is not sustained by the evidence, and for that réason that this judgment should be reversed. From what has heretoforé been stated in this opinion, the conclusion is reached that the confession of error of the Attorney General is well'founded, and that the judgment of conviction should be reversed; The defendant may be guilty of the offense charged but a conviction based on surmise and suspicion of guilt should not be permitted to stand. Otherwise, the liberty of the innocent citizen would be jeopardized.

It is to be regretted that the county attorney of Logan county did not elect to prosecute this defendant for unlawful possession of intoxicating liquor, instead of the unlaw-fnl conveyance in the manner charged, as the evidence clearly establishes his guilt of the former crime. But this court is powerless to affirm a conviction for one offense, where the proof establishes guilt of another and separate offense, not included within the charge.

The judgment is reversed, and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.


text:
    R. J. BLAND v. STATE.
    No. A-3573
    Opinion Filed Nov. 20, 1920.
    Rehearing Denied April 14, 1921.
    (196 Pac. 732.)
    (Syllabus.)
    1. CRIMINAL LAW — Procedure—Code and Common-Law. The procedure, practice, and pleadings in courts of record, in criminal actions or in matters of a criminal nature, not specifically provided for in tbe Code of Criminal Procedure, are in accordance with the procedure, practice, and pleading of the common law.
    2. INDICTMENT AND INFORMATION — Lost Instrument — Substitution of Copy. Where an indictment of information is lost, and where the clerk has failed to make a record thereof, as ' provided by section- 6134, Revised Laws 1910, the common law prevails. Under such circumstances, at common law a court of record had inherent power to preserve and protect its own records, and to substitute copies of lost records.
    3. INTOXICATING LIQUORS — Unlawful Possession — Evidence— Reputation of Place. In a prosecution for having unlawful possession of intoxicating liquor, where proper predicate is laid, the general reputation of the place in which such liquors were found, that it is a place where intoxicating liquors are kept for sale and sold, is competent annd admissible.
    4. JUDGMENT AND SENTENCE — Punishment—Duty of Court. Under section 5984, Revised Laws 1910, where the jury returns a verdict of guilty, but fails to assess the punishment to be inflicted, it is the duty of the court to assess and declare the punishment. ,

      Appeal from County Court, Ottawa County; C. S. Wortman, Judge.

    R. J, Bland, alias Cedar Red, was convicted of unlawful possession of intoxicating liquors, and he brings error.
    Affirmed.

      Mason, Church & Jones, for plaintiff in error.

      S. P. Freeling, Atty.'Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county, court of Ottawa county, wherein R. J. Bland, alias Cedar Red, was convicted of the crime of unlawful possession of intoxicating liquors, and sentenced to pay a fine of $250 and to serve a term of 60 days’ imprisonment in the county jail.

The proncipal alleged error relied upon for reversal is that the trial court had no jurisdiction to try defendant on a substituted information. The facts with reference to this assignment of error are as follows, as shown by the case-made: On the 14th day of January, 1919, the county attorney of Ottawa county filed in the county court of said county an information, duly verified on oath, charging defendant, R. J. Bland, alias Cedar Red, with the unlawful possession of certain whisky with intent to sell the same. Defendant was arrested and entered into an appearance bond on January 14, 1919. Thereafter, on the 16th-day of January, 1919, defendant appeared in court, and by his attorney, entered a demurrer to said information, upon the ground that the same did not state facts sufficient to constitute a crime against the state of Oklahoma. Tt does not‘appear that the demurrer filed to the original information was ever ruled upon by the trial- court. Oh the 7th day of February, 1919, it appears that the cause was called for trial, at which time, It appearing to the court that the original information was lost, and that the court clerk; had made no copy of the same of record, and that a trial could not be had, either upon the original information or a certified copy thereof, the county attorney was permitted by the trial court to file a substituted information, which was identical in substance and form with the original information, except that the same was not verified, and the trial court then permitted the same person to verify the substituted copy who had verified the original information, and defendant then 1m terposed a demurrer to the substituted information on the ground that the same did not state facts sufficient to charge an offense against defendant, which demurrer was overruled, and the trial proceeded, resulting in a verdict of guilty with the. punishment assessed at a fine of $100 and 60 days’ imprisonment in the county jail. Defendant thereunon filed a motion for a new trial, the second ground of which is as follows:

“For the reason that the defendant heretofore on the 16th day of January, 1919, was arraigned, and pleaded to an information filed on the 14th day of January, 1919, and in his plea of not guilty thereto, and that thereafter, to wit, on the 7th dajr of February, 1919,- a jury was impaneled and sworn to try said defendant on said information so filed, and pleaded to, and that after said jury was sworn and impaneled to try said defendant on said information, over the objections and protest of the defendant, the county attorney was permitted to, and did, substitute and try defendant on an information which was a copy of a copy of the original information filed in this case, and that said copy of the copy of the information, upon which the defendant was forced to go to trial was sworn to and filed in this court after the jury had been impaneled and sworn to try said defendant on said original information, and that the court had not power and jurisdiction to put said défend-ant on trial on said substituted information, purporting to be the copy of the original information, filed in this case.”

The trial court granted defendant a new trial, and the cause was thereafter called for trial on the 22d day of' April, 1919, at which time defendant urged similar objections to the jurisdiction of the court over the subject-matter of the action that had been raised on the first trial, and also further objected to proceeding on the ground of former jeopardy, in that the jury had been discharged, over defendant’s objection, on the firs,t trial, after having been impaneled and sworn to try defendant on the original information.

The latter objection is entirely without merit, because, if for no other reason, the same is not substantiated by the record; and the objection that the court was without jurisdiction to try defendant on a substituted information under the facts in this cas,e is also without merit, for the reason that the court had inherent power at common law, and independent of any statute, to preserve and protect its own records and to substitute copies of lost records. State v. Ireland, 109 Me. 158, 83 Atl. 453, 41 L. R. A. (N. S.) 1079, Ann. Cas. 1913E, 604, and authorities cited in body of opinion and note thereto.

Section 5543, Revised Laws 1910, provides:

“The procedure, practice and. pleading in the courts of record.in this state, in eritíüñal. actions or in matters of' criminal nature, not- specifically .provided' for in this Code, shall be in accordance with the procedure, practice and pleading of the common law.”

There being no specific procedure for the substitution of an indictment or information, where the same is lost and where the clerk fails to make a record thereof as required by section 6134, Revised Laws 1910, 'the common law prevails, and the court had inherent power to substitute a true and correct copy of the lost information (which was done:in this case), and had jurisdiction to try defendant upon the substituted information.' We hold, therefore,' that, the assignment of error that the. court was without jurisdiction to, try defendant on a substituted copy of the information, under the facts disclosed by this record, is without, merit."

The objection that the court erred in admitting certain incompetent, irrelevant and immaterial evidence, which was prejudicial to the substantial rights of defendant, is also without merit under the holding of this court in the following case: Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699; Davis v. State, 16 Okla. Cr. 372, 182 Pac. 908.

It is also contended that the court had no jurisdiction to sentence defendant bn the verdict of the jury, for the reason that defendant requested the trial court to instruct the jury that if they, found defendant guilty, to assess the punishment, w'hich instruction was given by the trial court, and, the jury failing to assess the punishment in the verdict, and failing to state in the verdict that they were unable to agree upon the punishment, the court was without jurisdiction to sentence defendant. We find no merit in this contention, under the holding of this court in the following cases: Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Newton v. State, 14 Okla. Cr. 226, 170 Pac. 270;Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296.

Finding no reversible error in the record, the judgment of conviction of the county court of Ottawa county, assessing a fine of $250 against defendant, K. J. Bland,. and that he serve a term of 60 days’ imprisonment in the county jail^is affirmed.


text:
    DAN SMITH v. STATE.
    No. A-3353
    Opinion Filed Feb. 5, 1921.
    Rehearing Denied April 14, 1921.
    (196 Pac. 734.)
    (Syllabus.)
    1. APPEAL AND ERROR — Sufficiency of Evidence. Where there is evidence from which the jury could reasonably conclude that - defendant is guilty, the judgment will not be disturbed because of insufficient evidence.
    2. TRIAL — Province of Jury — Conflicting Evidence. It is the province of the jury to judge all questions of fact in a criminal cause, and to determine, where the evidence is conflicting, whom of the witnesses to believe and whom to disbelieve. '
    3. SEDUCTION — Corroboration of Prosecutrix. In a prosecution for seduction, the prosecutrix is not required to be corroborated by direct and positive proof of facts independent of her testimony, but simply by such facts and circumstances as fairly tend to support her testimony.
    4. TRIAL — Requested Instructions Covered. Where instructions requested are covered in substance by the instructions given, and tlie charge given by' the trial court fully and fairly covers the law of the case, it is not reversible error to refuse to give the instructions in the form requested.

      Appeal from District Court, Garfield County; J. C. Robberts,'Judge.

    Dan Smith was convicted of seduction, and he appeals.
    •Affirmed.

      Dan Huett and M. C. Garber, for plaintiff in error.

      S. P. Freeling, Atty, Gen., and W*. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Garfield county, wherein plaintiff in error, Dan Smith, hereinafter referred to as defendant, was convicted of the crime of seduction, and sentenced to pay a fine of $500 and to be confined in the county jail for a period of 80 days. Judgment was rendered on the 2d day of January, 1918, from which judgment'defendant appealed by filing in due time in this court his petition in “error with case-ma£e attached.

The first, second, third, fourth, and ninth assignments of error are as follows:

“The court erred in refusing to direct the jury to return a verdict of ‘not guilty.’ ”

“For that the verdict of the jury returned is contrary to the law and the evidence.”

“For that the court erred in overruling defendant’s motion for a new trial.”

“For that the court erred in overruling defendant’s motion in arrest of judgment.”

“For that the court erred in rendering judgment upon the verdict returned, and adjudging that the defendant be confined in the county jail fot a period of 3(0 days and to pay a fine of $500.”

The foregoing assignments are presented together in ihe brief, and it is contended that under these assignments the judgment should be reversed for the reason that the evidence is wholly insufficient to sustain the conviction.

We deem it unnecessary to discuss the evidence. While the proof of defendant’s guilt is not as convincing as in many cases of seduction, there is, however, evidence on the part of the state’s witnesses which, if believed, is sufficient to sustain the conviction. It may be said that the prose-cutrix was not extremely difficult to seduce, 'but, as said by the Assistant Attorney General, “each victim presents a different degree of intelligence and; strength of character to be overcome.” It is evident from her testimony that prosecutrix was not possessed of an unusual degree of intelligence, nor was she surrounded with that home influence, environment, and training which tends to render necessary all the arts, persuasions, deceptions, and solicitations of the wily seducer before a surrender of chastity may be accomplished.

The argument, advanced by counsel for defendant is lodged against the weight of the evidence rather than its sufficiency. 'Counsel contend, however, that in this case an exception should be made to the general rule of this court that, “where there is evidence from which the jury could reasonably conclude that defendant is. guilty, the judgment will not be disturbed because of insufficient evidence,” but such a course of action would be fraught with more danger to the administration of the" crimihal law than would a «trict adherence to those well-established principles of judicial consruction which find sanction in a long line of decisions of the highest appellate courts, in the Union.

Recognizing the better opportunity of the jury to judge óf the weight of the evidence and the credibility of the witnesses, the Legislature has provided that in criminal causes the jury shall be the exclusive judges) of all questions of fact. This court, therefore, is not permitted to substitute its opinion for that of the jury on the weight of the evidence or the credibility of the witnesses, and it has uniformly been held that a judgment of conviction will not be reversed for want of sufficient evidence unless it may be said, as a matter of law, that there is no evidence reasonably tending to support the conviction.

In this connection it is also argued that the prose-cutrix was not sufficiently corroborated either as to the promise of marriage or as to the act of sexual intercourse. In support of the promise of marriage evidence was introduced to show that defendant, immediately after the date on-which the prosecutrix testified that the promise was made, was a frequent visitor at the home of prosecutrix; that he called the parents of the prosecutrix “father” and “mother,” and referred to himself as their “old Dutch Dan.” There is also evidence of several witnesses that on the date that the prosecutrix testified defendant seduced 'her defendant and prosecutrix were absent from the home of prosecutrix alone after dark for about one hour and a half, I and on other occasions before and after that time were alone together, and that defendant admitted to others that he had had sexúal intercourse with prosecutrix.

v-While the evidence on these 'points is conflicting,' it-was for the jury to determine'whom of the witnesses they would believe and whom disbelieve.'

It is further contended that the trial court erred in giving, over the objection and exception of defendant, in- ' struction No. 4, which is as follows:

“Upon trial for having seduced and had sexual intercourse with an unmarried female of previous chaste character, under a promise of marriage, the defendant cannot be convicted upon the testimony of the prosecutrix, unless she is corroborated by other evidence upon the two elements, to wit, the promise of marriage and the illicit connection ; and in this connection you are instructed that the term ‘corroborate’ or ‘corroboration,’ as used in these instructions, means to strengthen, to make more certain, that is, to give additional strength' to the testimony of the pros-ecutrix. It does not necessarily require the testimony of another witness or person, but her testimony .may be corroborated by proof of other facts and circumstances which you find from the evidence, beyond a reasonable doubt makes more certain, and adds additional strength to her testimony. In determining whether or not the testimony of the prose-cutrix has been corroborated in this case, upon the two elements above mentioned, you may take into consideration the evidence, if any, tending to show the conduct and familiarity of the defendant with the prosecutrix and her family, his visits with them, and attentions, to her, if any such is proved, together with all other facts and circumstances which you find and believe from the evidence beyond a reasonable doubt strengthens her testimony, if any, as to the promise of marriage and illicit intercourse charged in the information. Taking into consideration all the facts and circumstances proved in the case, it is for you, gentlemen of the jury, to determine whether or not the testimony of the prosecutrix has been corroborated as hereinbefore, explained in this instruction.”

It is argued that this instruction is erroneous because the jury is told, in substance, that the prosecutrix may be corroborated by her own testimony.

We do not so construe the instruction. While the instruction says that corroboration “does not necessarily require the testimony of another witness or person,” it is specifically stated, however, that “there must be proof Of other facts and circumstances” than the testimony of the prosecutrix which the jury must find beyond a reasonable doubt makes more certain and adds additional strength to the testimony of the prosecutrix.

We think the instruction meets the rule announced in Harvey v. Territory, 11 Okla. 156, 65 Pac. 837, wherein it was held:

“The female in a prosecution for seduction is not required to be corroborated by direct and positive proof of facts independent of her testimony, but only as to such facts and circumstances as usually form the concomitants of the main fact sought to be established, which facts should be sufficiently strong within themselves, and pertinent in their bearing on the case, to satisfy the jury of the truthfulness of the prosecutrix in her evidence on the principal facts.”

See, also, Butts v. State, 12 Okla. Cr. 391, 157 Pac.704.

It is also contended that the court erred in refusing to give certain instructions offered and requested by defendant.

An examination of these instructions, together with the instructions given by the court, discloses that the substance of the requested instructions was covered in the instructions given; that the charge given by the trial court fairly and fully covered the law of the case. We find no reversible error, therefore, in refusing to give the instructions as requested.

A consideration of the testimony of the witnesses in this case discloses a conviction based upon conflicting evidence, and, while the evidence of the prosecutrix hersielf is to a certain extent unsatisfactory and unconvincing on some points, it cannot be said that the evidence as a whole is legally insufficient to sustain the conviction. The punishment imposed by the trial court is extremely light, nothing more than is usually imposed in misdemeanor cases. We see no good reason why the judgment in this case should be disturbed.

Judgment affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    MARION GAINES v. STATE.
    No. A-3365
    Opinion Filed Dec. 11, 1920.
    Rehearing Denied April 14, 1921.
    (196 Pac. 719.)
    (Syllabus.)
    1. INTOXICATING LIQUORS — Sale—Sufficiency of Evidence. Evidence examined, and held sufficient to authorize the jury to reasonably conclude that defendant was guilty of the crime charged, and that the same constituted sufficient proof of the corpus delicti of the offense.
    2. TRIAL — Instruction—Burden of Proof. An instruction, not objected to, and misquoted in the brief filed in behalf of defendant, is held to correctly state the law, and to place no unjust burden of proof upon defendant.
    3. CONTINUANCE — Denial—Absent Witnesses. Where there is no sufficient showing of diligence on the part of defendant to procure the "attendance of certain witnesses, nor a showing that the attendance of such witnesses could be had, at the next term . of court, there is no abuse of discretion on the part of the trial court in overruling the motion for .continuance on the ground of the absence of such witnesses.
    4. APPEAL AND ERROR — Record—Improper Argument. No question is raised in this court on the ground of the improper argument of the county attorney, unless the case-made contains proper recitals that certain argument was made, and that the same was objected to at the time, and proper exceptions saved to the ruling of the trial court in permitting the same.

      Appeal from County Court, Logan County; John-D. Chappelle, Judge.

    Marion Gaines was convicted of the crime of selling whisky, and he appeals.
    Affirmed.

      B. F. Garrett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hull, Asst; Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Logan county, wherein defendant, Marion Gaines, was convicted of the crime of selling whisky, and his punishment fixed at imprisonment in the county jail for a period of six months and to pay a fine of $500. Counsel for defendant urge several grounds for reversal of the judgment, including: (1) That the verdict is not sustained by sufficient evidence; (2) that there is no sufficient proof of the corpus delicti of the offense.

The undisputed evidence in this case is that on September 4, 1917, J. K. Gano and two others drove from the city of Oklahoma City to the city of Guthrie in an automobile, to a garage in the latter city owned and operated by one E. E. Tallman, and at the latter place they met the said Tallman and another man by the name of Reed. Desiring to purchase some whisky,, these five parties raised some money for that purpose, and drove their car to the residence, of defendant in the city of 'Guthrie. The car was driven into an alley near defendant’s premises, and there Tallman, who was a resident of the city of Guthrie, had a conversation with some person who the witness Gano says “might have been defendant.” Being unable to obtain the whisky on this visit, the parties drove back to the business district of Guthrie, and ate lunch in a restaurant, and then returned in their car to a place on the public streets of Guthrie close to the residence of defendant, and there defendant was met, the car stopped, and defendant came up to the side of it, and, according to the testimony of the sheriff, who was on another street watching the parties, defendant passed a package into the car, and one of the parties in the car admits handing to defendant some money in the form of currency. The car was then started, and the sheriff, who was in another automobile, immediately pursued said parties, overtook them in a very short time, searched the car, and found a quart of whisky therein.

The evidence discloses that these parties did not have whisky before.defendant was met on the second visit; that they were bent upon purchasing whisky; that defendant passed a package into the car, and received some greenbacks from one of the parties in the car. This evidence, in the judgment of the court, was sufficient for the jury to reasonably conclude that the transaction witnessed by the sheriff constituted a sale, of the quart of whisky by defendant to the parties in the car, discovered in possession of the same immediately thereafter, and the facts and circumstances ' testified to, undenied, constituted sufficient nroof of the corpits delicti of the offense.

It is also contended that the court erred in giving of instruction No. 4. The instruction complained of was not objected to in the trial court. In the brief filed in behalf of defendant, counsel has incorporated therein only part of the court’s instruction, omitting a clause therefrom which clearly cures the error complained of. IThe instruction correctly states the law, and does not place any unjust 'burden of proof upon defendant.

Further, it is contended that the court erred in overruling defendant’s application for a continuance op account of the absence of certain witnesses. In this connection it may be said, however, that there is no sufficient showing of diligence on the part of defendant to procure the attendance of the witnesses, nor is there any showing of likelihood that the attendance of such witnesses could be had at the next term of court. We find, therefore, no abuse of discretion in overruling the motion for a continuance.

Certain remarks of the county attorney in the closing argument of the case are complained of, but the case-made contains no recital to the effect that such argument was made, objected to at the time, and proper exceptions saved to the ruling of the trial court in permitting the same. In the absence of proper recitals in the case-made to the effect that the argument was made by the county attorney, .as complained of, no question is raised in this court under this assignment of error. Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259.

For reasons stated, the judgment is affirmed.


text:
    ISOM BEAM v. STATE.
    No. A-3518
    Opinion Filed Jan. 4, 1921.
    Rehearing Denied April 14, 1921.
    (196 Pac. 720.)
    (Syllabus.)
    i. INDICTMENT AND INFORMATION — Immaterial Variance-Means of Commission of Crime. The means by which a homicide is committed is not a constituent element of such crime, and a variance between the averments of the original complaint and the information filed in the trial court as to such means is not prejudicial to the substantial rights of defendant.
    2- SAME — Complaint., Where a defendant is bound by an examining magistrate on the hearing of a preliminary examination to answer a particular felony in the district or superior court, the county attorney is authorized to charge the commission of such felony according to the facts as developed on the preliminary examination, and is not limited in such instances to the allegations contained in the preliminary complaint.
    3- HOMICIDE — Joint Defendant Responsible for Acts of Others. Where two defendants, jointly informed against for the commission of a homicide, act together, one is responsible for the acts of the other, and it is immaterial whether death resulted from a wound inflicted by the defendant on trial, provided that the wounds inflicted by either or both defendants contributed to death.
    4. SAME — Aiding and Abetting. It is not necessarily essential to the guilt of defendant of homicide that he directly commit the act resulting in death; it is sufficient if he aid and abet another in its commission.
    5. SAME — Evidence of Other Offense. Where a homicide is committed by two persons acting together, one by stabbing deceased with a knife and the other by shooting with a pistol, evidence that the codefendant not on trial wounded a third person by one of the pistol shots is properly admitted as part of the res gestae, although it tends directly to prove the commission of an offense other than that charged, when the two offenses are so linked together in point of time or circumstances that proof of one cannot be fully made without developing the fact of the other.

      6. HOMICIDE — Instructions. For reasons holding that, the trial court did not err in giving certain instructions objected and excepted to, see bods- of opinion. Also, for reasons holding not error to refuse certain requested instructions.

      Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.

    Isom Beam was convicted of manslaughter and sentenced to serve a term of four years’ imprisonment in the penitentiary, and appeals.
    Affirmed.
    On the 6th day of May, 1918, a preliminary complaint was filed in the justice court of R. B. Campbell, justice of the peace in Okmulgee county, jointly charging Isom Beam and Albert Fisher with the murder of one Louis Deer, alleged to have been committed on the 29th day of April, 1918, in said county. Thereafter, on the 14th day of May, 1918, defendant and Fisher were bound over to answer said crime to the superior court of Okmulgee county. On the 28th day of May, 1918, an information was filed in the superior court of Okmulgee county by Joe ;S. Eaton, county attorney, jointly charging defendant and Albert Fisher with the murder of Louis Deer.
    Thereafter, defendant was granted a severance and filed a motion to quash the information, a demurrer thereto, and also a motion to strike certain portions of the information, all of which were overruled by the court and exceptions allowed. Thereafter, defendant entered his plea of not guilty, and on the 19th day of September, 1918, defendant was placed on trial in the Henryetta division of said court, and on the 20th day of September, 1918, the jury returned a verdict of guilty of manslaughter in the first degree,, and fixed defendant’s punishment at .four years’ imprisonment at hard labor in the state penitentiary.

      Defendant filed a motion for a new trial, which was overruled by the court, to which action defendant duly excepted, and on the 26th day of September, 1918, the court pronounced sentence and rendered judgment, from which judgment an appeal was prayed to this court, and the cause is here by filing in this court on the 14th day. of March, 1919, a properly authenticated case-made with petition in error attached.
    Defendant and nearly all the witnesses in this case are full-blood citizens of the Creek Tribe of Indians. On the 29th day of April, 1918, Louis Deer, the deceased, Albert Fisher, Louis Fisher, and Isom Beam were all under the influence of intoxicating liquor, and in that condition hacr gone from the city of Henryetta to the home .of Albert Fisher west of the town of Bryant, in Okmulgee county, where the killing occurred.
    According to the evidence of the state’s witnesses, the parties reached the home of Albert Fisher about 3 or 4 o’clock in the morning. This home was a framehouse, built in ell-shape facing south, and the. south room and the room immediately north of it were used partly, if not entirely, as bedrooms. There were two beds, in the north room and one in the south room. At the time the parties arrived on the premises, there were sleeping in the north room Betty Barnett, a sister of Louis Deer, Nellie Barnett, Fanny Fisher, Yarner Fisher, and some children; and in the south room William Robinson, an Indian boy.
    When the parties first came to the house, they did not go to bed, but after staying a short time went over to the house of Betty Barnett, which was across the road, where they stayed about 30 minutes, and then returned. At this time the deceased, Louis Deer, was staggering, and, at the request of Betty Barnett, Albert Fisher helped put Louis .Deer to bed in the north room.
    That shortly thereafter, Albert Fisher and Louis Fisher began quarreling in the south room, and Louis Fisher left to go to his home, and then Albert Fisher started to go back to town and was¡ cursing his sister, Yarner Fisher, and Louis Deer got up out of bed and started into the other room for the announced purpose of stopping the fuss; that a quarrel ensued between Albert Fisher and Louis Deer; that Albert Fisher had a pistol, and Louis and Albert were scuffling on the bed, when Isom Beam, the defendant, rushed in and stabbed Louis Deer with a knife; that later they ran out into the yard, and Albert Fisher shot Louis Deer in the leg, and also shot Betty Barnett in the arm; that á doctor was called to see Louis Deer a couple of. days later; and that he died on the 6th day of May, 1918, from septic poisoning which had set up in one or the other of the wounds inflicted upon deceased by defendants, Beam and Fisher.
    Defendant, in his own behalf, testified substantially: That he had gone to the home of Albert Fisher in company with deceased and Louis Fisher and Albert Fisher from Henryetta. That they were all drinking freely of whisky which they had procured at Henryetta. That, after staying at Albert Fisher’s house a short time playing cards, they went over to Betty Barnett’s house, and deceased accused witness of attempting to steal a pocketbook, and a difficulty ensued in which deceased and witness scuffled. Later the parties went back to Fisher’s, and on the way over there deceased knocked Louis Fisher down, and Louis Fisher then went to his home. Deer and Louis Fisher were more intoxicated than the other two. That Deer was put to bed by witness after they arrived at Fisher’s on the second visit. That witness suggested to Albert Fisher that they go back to town. That Fisher-went to his trunk and was getting his shirt and told his sister, Yarner Fisher, they were going back to town. That deceased said they were not going and came into the room and got Fisher down on the bed. That Betty Barnett came in and also got to helping hold Fisher on the bed. That witness pulled Betty Barnett off of Fisher. That witness and Albert Fisher came to town after the fight. That witness paid a fine for being drunk. That witness had no hard feeling toward deceased.
    Albert Fisher, jointly informed against with defendant, testified substantially as did defendant, and also testified that, when deceased and Betty Barnett had witness on the bed, deceased struck witness several times with his fist, and that Betty Barnett also struck witness with a shoe; that witness then got out his knife and cut Louis Deer in order to get him off; that they were all pretty drunk; that defendant had no connection with it other than to pull Betty Barnett off of witness; that witness saw deceased next day, and was at the justice of the peace court and entered a plea of guilty to carrying concealed weapons and paid his fine.
    Yarner Fisher, sister of Albert Fisher, testified to the fact that the boys came to Albert Fisher’s that night; that Betty Barnett and deceased were both on top of her brother; that defendant was standing back of the bed; and that she did not see defendant do anything dr have ánything In his hand.
    Nellie Barnett testified substantially as did Yarner Fisher, and also said she only heard one shot fired that night.

      E. W. Smith, Charles L. Phillips, and Edw. J. Gilder, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as1 above). It is first contended that the trial court erred in not sustaining the motion to quash the information, and the demurrer thereto.

Under these assignments of error it is argued that the trial court never obtained jurisdiction of the subject-matter of the offense, because the charge contained in the preliminary complaint is materially different from that contained in the information filed in the superior court.

The charging part of the complaint is as follows:

“ * * * Did unlawfully, willfully and feloniously, and without authority of law and with a premeditated design to effect the death of one Louis Deer, shoot and discharge a leaden bullet into the body of him, the said Louis Deer, from a certain loaded pistol or a shotgun, the exact description of the weapon used being to this informant unknown, which said defendants then and there had and then and there held in their hands; then and there and thereby inflicting upon the body of him, the said Louis Deer one mortal wound. * * *”

The charging part of . the information is substantially the same as the complaint, except that it charges the means used to accomplish the homicide as follows:

“From a certain loaded pisjtol which the said Albert Fisher then and there had and held-' in his hands, and from a certain pocketknife then and there held in the. hands of Isom Beam.”

It is evident that the preliminary complaint and the information both charge defendants Fisher and Beam with the commission of the same homicide, the killing of Louis Deer. The only difference between the instruments is in the change of the means employed by defendants to accomplish the homicide — the complaint charged the joint commission of the homicide by the defendants by shooting "a certain loaded pistol, or a shotgun, the exact description of the weapon used being to this informant unknown,” and the information charged the joint commission of the identical homicide by the use of a pistol by Fisher and a pocketknife by Beam.

In the case of Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185, this court held :

“The complaint before the committing magistrate averred that the killing was effected by means of a shotgun; and the information in the district court averred that the killing was effected by means of a Winchester rifle. Held that this is a sufficient compliance with the constitutional provision (larticle 2, § 17, Bill of Rights) as the means, by which the offense was committed are not a constituent element of the crime of murder, and that the variance between the averments of the original complaint and the information filed in the district court are not to the prejudice of the substantial rights of the defendant.”

The holding in theí Weatherholt Case is decisive of the question here involved, but in addition it may be said that there was no waiver of preliminary examination by the defendants in this case, and under such circumstances the county attorney was authorized to file an information In the district or superior court charging the crime committed according to the facts in evidence on the preliminary examination. Where a defendant or defendants are bound by an examining magistrate on the hearing of a preliminary examination to answer a particular felony in the dis-tri t or superior court, the county attorney is authorized to charge the commission of such felony according to the facts as developed on the preliminary examination and is not limited in such instances to the allegations contained in the preliminary complaint. The pertinent inquiry In the trial court then is: Does the information charge the offense for which defendant was'held to answer? If such inquiry may be properly answered in the affirmative, the trial court has acquired jurisdiction of the subject-matter of that offense. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451; Tucker v. State, 8 Okla. Cr. 428, 128 Pac. 313; Agent v. State, ante, p. 281, 194 Pac. 233.

For reasons stated, the actions of the trial court in overruling the motion to quash and the demurrer to the information were not erroneous.

It is next contended that the evidence is insufficient to sustain the verdict.

The main contention under this assignment of error seems to be that there is no proof in the record that any wound inflicted upon deceased by this defendant caused death.

There is evidence to the effect that .both Albert Fisher and defendant wounded deceased — Albert Fisher by shooting deceased with a pistol, and Beam by stabbing deceased with a knife. Peritonitis or septic poisoning set up, and Louis Deer died from the effects thereof.

The testimony of the attending physician is positive to the effect that death was caused primarily from septic poisoning setting up “in this wound.” The physician had previously described three wounds on deceased’s body:

“One on his left, side just under the clavicle, looked like a stab or gash, that had been seared over, dried; didn’t look like a gunshot wound; couldn’t say positively what produced that wound. * * * Another'on his right side', seemed to be right over the liver; seemed to feather out from the front; looked like a gash or stab.. (This is. the wound state’s witness testified was inflicted by defendant.) This wound was from back to front. Never probed it. He wouldn’t let me bother the wound at all, said he hurt so all over;' complained of aching. Another surface wound on his deg above the knee, I believe a gunshot wound.”

No reasonable inference, other than that the wound inflicted by defendant contributed in some measure to bring about the death of Louis Deer, can be drawn from the evidence of the attending physician. Apparently all these wounds contributed in a greater or lesser degree to the death' of Deer.

While there is no direct showing of a conspiracy entered into on the part of Fisher and Beam to kill Deer, and that the homicide was the result thereof, there is evidence of concert of action on their part. According to the state’s evidence, after Fisher, in the presence of Beam and with his knowledge, had assaulted Deer two or three times by striking him with a pistol, and when Deer and Fisher were struggling on the bed, Deer attempting to take , the pistol from Fisher, Beam rushed in and stabbed Deer in the right side with a knife, after which Fisher and Beam got together, and Fisher then shot Deer with the pistol.

Under such circumstances, this defendant will not Tbe held alone to criminal responsibility for death caused solely by the wound inflicted by him; but having voluntarily entered into an assault wherein .his codefendant was attempting to use a deadly weapon, and having himself, in that encounter, used with telling effect a sharp and dangerous weapon in a place close to a vital organ in deceased’® body, inflicting thereby a very serious wound, defendant by his conduct in thus rushing to the support of another assailant must be held to assume criminal responsibility for a death the result of any of the wounds inflicted in the assault, whether by himself or his coassailant.

It is not necessarily essential to the guilt of the defendant of homicide that he directly commit the act resulting in the death; it is sufficient if he aid and abet another in its commission.

There is sufficient evidence in this record to authorize the conclusion that Beam and Fisher acted in concert in assaulting Deer, and that one aided and abetted the other in the infliction of wounds, in one or more of which septic poisoning set up resulting in death. They were both principals to the commission of the homicide, and it was immaterial which wound directly caused the death. Defendant was responsible criminally, not only for the wounds Inflicted by him, but also those inflicted by Fisher after he (defendant) voluntarily entered into the assault upon deceased.

It is also contended that the trial court erred in permitting the witness Betty Barnett (Deer) to testify that Albert Fisher shot at and wounded her.

This evidence was admissible as part of the res gestae, the record disclosing that the shooting of the witness Barnett by Fisher was so interwoven with the assault made by Fisher and Beam upon the deceased, Deer, as to form; merely a part of an integral transaction, covering a very limited period of time, without definite interruption, so that proof of the nature of the assault made upon Deer could not' have been fully made without developing the fact that the witness) Barnett was injured by one of the bullets fired from a pistol in the hands of Fisher.

Under such circumstances, we deem the evidence complained of part of the res gestae, and for that reason competent. The following cases are in point: Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383; Tudor v. State, 14 Okla. Cr. 70, 167 Pac. 341.

Further, it is contended that the trial court erred In giving, over the objection and exception of defendant, the seventh, eleventh, and thirteenth paragraphs of the general charge to the jury. Counsel contend that there is no evidence of “acting together” shown by Albert Fisher and defendant Beam in assaulting Deer, and that the trial court should not have given the instructions complained of because the jury was thereby permitted to find Beam guilty, although the jurors may have believed that Fisher’s acts caused the death of Deer.

We have heretofore' pointed out in this opinion evidence which the court believes to have been a sufficient basis for the giving of the instructions Nos. 7, 11, and 13. There is no contention that the law is incorrectly or event inaccurately stated in the instructions, the only contention being that such instructions were not applicable to the evidence. For reasons stated above, we conclude that defendant was not prejudiced by the court’s action in this respect.

- Finally, it is contended that the trial court erred in refusing to give certain requested instructions.

These instructions were properly refused. The court fully and fairly covered the law of the case in the general charge. The requested instructions were based upon the theory that there was an entire absence of the proof of concert of action between Fisher and Beam, while the view this court takes of the evidence results in the contrary conclusion.

Finding no substantial orror in the record before us, the judgment of the superior court of Okmulgee county, finding the defendant guilty of manslaughter in the first degree and assessing his punishment at imprisonment in the state penitentiary for a term of four years, is affirmed.

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


text:
    ALBERT FISHER v. STATE.
    No. A-3629
    Opinion Filed Jan. 4, 1921.
    Rehearing Denied April 14, 1921.
    (196 Pac. 724.)
    (Syllabus.)
    1. APPEAL AND ERROR — Discretion of Court — Continuance. Applications for a continuance on account of the absence of material witnesses are addressed to the discretion of the trial court. A judgment of conviction will not be reversed on appeal because the trial court overruled such a motion,' unless a manifest abuse of discretion appears.

      2. CONTINUANCE — Absent Witnesses — Insufficient Affidavit. For affidavit failing to set out facts showing sufficient diligence to obtain the attendance of absent witnesses, and also failing to show reasonable likelihood of obtaining such witnesses at subsequent term of court, see body of opinion.
    JURY — Qualification of Jury — Homicide. Por voir dire examination of juror challenged by defendant for cause held to show no ground of disqualification, see body of opinion. CO
    TRIAL — Refusal of Instructions Covered in Charge. Where the general charge of the court fully and fairly covered the law of the ease in a manner as favorable to defendant as the evidence warranted, it was not prejudicial error to refuse to give other instructions requested substantially covered in the general charge. •

      Appeal from Superior Courts Okmulgee County; R. E. Simpson, Judge.

    Albert Fisher was convicted of the crime of manslaughter in the first degree and his punishment fixed at a term of six years’ imprisonment in the state penitentiary, and appeals.
    Affirmed.

      E. W. Smith, Chas. L. Phillips, and Edw. J. Gilder, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is a companion case to that of Isom Beam (No. A-3518, this day decided), ante, p. 529, 196 Pac. 720. The defendant, Albert Fisher, and Isom Beam were jointly informed against in the superior court of Okmulgee county for the murder of one Louis Deer. Upon a severance, Beam was tried first, and upon conviction was sentenced to serve a term of four years’ imprisonment in the state penitentiary. Fisher, who was subsequently convicted, was sentenced to serve a term of six years.

The assignments of error in many respects are identical in both cases, and those alleged errors passed upon in the Beam appeal will not receive further consideration at this time.

In addition to the question raised in the Beam Case, one or two questions are raised on this appeal: First, it is contended the trial court erred in overruling the motion of this defendant for a continuance of the cause on account of the absence of Yarner Fisher and Nellie Barnett, both of whom were claimed to be material witnesses for the defendant.

The affidavit of defendant in support of said motion concerning the absence of Yarner Fisher and the diligence used to obtain her attendance, and what was expected to be proved by her, is as follows:

“Albert Fisher, of lawful age, being first duly sworn on his oath says: That he is the defendant in the above-entitled cause, and that he is charged with the crime of murder therein; that he is. unable td proceed to trial at this time for the want of material evidence, to wit:

“The evidence of Yarner Fisher, who is a material Witness in this case, and the defendant has used due diligence to obtain her evidence, in that he has a subpoena issued .for her and the return thereof* by.Deputy Sheriff Don R. Stormont shows that she cannot be found in this county, and that, although she is a sistei of this defendant, her whereabouts are wholly unknown to him at this time, and he is unable to produce her at this trial at this time. That the defendant expects to have the evidence of the said Yarner Fisher at the next term of this court. That the defendant expects to prove the following facts by said witness, to wit:

“That the difficulty out of which this case arose occurred at the house owned by witness; that the defendant was living and residing with witness at the time and had no other home; that, on the night of the difficulty, the deceased, defendant, Isom Beam, and Louis Fisher came home about midnight, and after some little time the deceased, Louis Deer, came into the room where witness was asleep and went to bed, and that he was in bed in the same room with her prior to the difficulty, and that the deceased was drinking heavily and quarrelsome; that at the time of the difficulty the deceased got up out of the room where she was sleeping and went into the south room where Albert Fisher, her brother, was, and provoked the difficulty that resulted in the fight; that the deceased, Louis Deor, was the aggressor and got Albert Fisher down on his bed and was beating and choking him;,that Betty Deer, the sister of the deceased, who was also in bed in the same room with witness, got up out of bed and' went to the assistance of the deceased, and that she, too, beat on this defendant with something like a shoe; that, when she went by the door leaving the house, Betty Deer and Louis Deer were both on top of Albert Fisher beating and choking him ; that when she got to the road she looked back and saw Louis Deer run Albert Fisher-out into the yard with a chair in his hand, and went on around the house; that when he returned he had a rock or something in his hand, and that Albert Fisher said, ‘Drop that rock!’ or something to that effect and shot; that the said Louis Deer was the aggressor throughout the fight, and that affiant believes the same to be true. That said evidence cannot be furnished by any other witness, and that this application is not made for delay, but that substantial justice may be done. Wherefore defendant asks, that this cause be continued until the next term of this court.”

A similar affidavit was also filed as to Nellie Barnett.

Applications for a continuance on account of the absence of material witnesses are addressed to the discretion of the trial court. This court will not reverse a judgment .of conviction because the trial court overruled such a motion, unless a manifest abuse of discretion appears. The previous holdings of this court are uniform to this effect, among which are the following: Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800; Brewer v. State, 13 Okla. Cr. 514, 165 Pac. 634; White v. State, 9 Okla. Cr. 442, 132 Pac. 381.

We think it is apparent from defendant’s affidavit in support of this motion that due diligence is not shown in attempting to obtain the attendance of the absent witnesses. Yarner Fisher, one of the absent witnesses, is a sister of the defendant, with whom defendant lived at the time of the commission of the alleged crime; yet defendant swears he is not acquainted with her whereabouts at the .time of the trial, but believes he can procure her attendance, if the cause is continued. Evidently, had any reasonable amount of diligence been used, defendant could have kept in touch with the whereabouts of his sister, and procured her attendance at the trial: There was no more likely probability of defendant’s procuring the attendance of either of these witnesses at a subsequent term of court had no more diligence been employed.

We find no abuse of discretion in overruling this motion. On the contrary, the court’s action was entirely consistent with the just administration of the criminal laws of this state. This cause had been pending on the docket of Ihe trial court from the 28th of May, 1918,' until the 10th day of March. 1919, the defendant'having on the 8th day of June, 1918, been granted one continuance in the cause, and having been at large, on bond from that date subsequently until the cause was set for trial in March, 1919, a period of over nine months.

Under such circumstances, the trial court was unusually indulgent with this defendant in permitting the evidence of these two witnesses given in the trial of Isom Beam to be read as the deposition of said witnesses in this ease.

It is also contended that the trial court erred in overruling a challenge for cause to the juror S. C. Browning. The voir dire examination of said juror is as follows:

“Q. You said you were one of the regular panel at the adjourned May term — September term of this court, last year? - A. Yes, sir; I was here. .

“Q. I will ask you to state whether or not you were one of the jurymen in the case of Isom Beam tried at that term. A. I have no recollection of it; no, sir.

“Q. I will ask you if you were drawn on that jury.

A. Well, I have no recollection of being drawn.

“Q. You know whether you were drawn? A. I have no recollection; I might have been drawn and could have forgotten.

“Q. I will ask you if you were in the court room during the trial. A. Don’t remember anything of that trial at all.

“Q. You remember the trial don’t you? A. No, sir; I don’t know that I remember the trial.

“Q. You won’t say you were not in the court room, will you? A. No, sir; I wouldn’t say I was; wouldn’t be positive.

“By Mr. Smith: Challenged for 'cause.

“By the Court: Challenge overruled.

“By Mr. Smith: Exception.”

As no ground of disqualification is made to appear from the foregoing examination, it is apparent the action of the trial court in overruling the challenge for cause was not erroneous.

Certain instructions covering the law of self-defense were given over objection and exception of defendant’s counsel; other instructions requested along the same line were refused.

The instructions given were such as had heretofore been approved by this court' in cases where self-defense was relied upon.

The general charge of the court in our opinion fully and fairly covered the law of the case, and there was no prejudicial error in refusing to,give the instructions requested because the law contained in the requested charges-was substantially covered in the instructions given in a manner as favorable to the defendant as the evidence warranted.

Judgment affirmed.

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


text:
    STATE v. LEWIS ALEXANDER.
    No. A-3593
    Opinion Filed April 16, 1921.
    (196 Pac. 969.)
    (Syllabus.)
    1. INFANTS — Comity Court’s Jurisdiction of Juveniles. The act of March 24, 1909 (Laws 1909, c. 14, art. 8), creating the juvenile court and prescribing the jurisdiction thereof, places the jurisdiction to inquire into the matter of the probable guilt and capacity of a juvenile offender under the -sole jurisdiction of the county court.

      2. SAME — Quashing Felony Information Against Infant — Lads of Preliminary Trial. A superior court has no jurisdiction to. inquire into the probable guilt of a juvenile offender or into his capacity to commit a felony triable in the county, and where it is apparent on a motion to quash an information charging an infant defendant under116 years of age with a felony that such defendant has never been accorded a preliminary examination by a court of competent jurisdiction, the motion to quash is properly sustained.

      Appeal from' District Court, Creek County; Luden B. Wright, Judge.
    Lewis Alexander was charged with murder, and to review judgment quashing the information the State appeals.
    Judgment affirmed.

      Earl Foster, Co. Atty., for the State.

      B. B. Thompson, for defendant in error.
   MATSON, J.

This is an appeal by the state from a judgment quashing an information filed in the district court of Creek county charging defendant in error, Lewis Alexander, with the crime of murder. It is alleged that the trial court erred in quashing said information, and in holding that it did not have jurisdiction to try defendant upon the purported information filed against him.

The motion to quash is based on the contention that at the time of the commission of the alleged crime defendant was an infant under the age of 16 years, and had never been accorded an examination into the question of his probable guilt and capacity to commit such crime by a court of competent jurisdiction prior to the filing of said information in the district court.

Upon the hearing of the motion to quash, the admitted facts were that defendant was under the age of 16 years and had never been accorded a preliminary investigation of the question of his probable guilt and capacity to commit said crime by the county court of Creek county sitting as a juvenile court. The record, however, discloses that the superior court of Creek county assumed to act in such capacity, and made a finding to the effect that defendant was probably guilty of the crime charged,: and had capacity to commit the crime.

The trial court held that the superior court of Creek county had no jurisdiction to inquire into -the probable guilt of a juvenile offender, or into his capacity to commit a crime triable in that county, and for the reason that defendant had never been accorded a preliminary examination into those questions by a court of competent jurisdiction, quashed the information.

We think the holding of the district court in this respect was- correct. . An examination of the act of March 24, 1909 (Laws 1909, c. 14, art. 8), creating the juvenile court and prescribing the jurisdiction thereof, clearly places the jurisdiction to inquire into the matter of the probable guilt and capacity of a juvenile offender under the sole jurisdiction of the county court. It was never the legislative intent to have, in some counties where superior courts exist, two juvenile courts, and only one such court in counties where no superior courts were created. It is apparent from the act itself that there is provided one juvenile court in each county of the state, and that jurisdiction is in the county court. Ex parte Hightower, 13 Okla. Cr. 472, 165 Pac. 624; In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022.

For reasons stated, the judgment of the district court quashing the information is affirmed. This- prosecution should be instituted anew for preliminary inquiry into the probable guilt and capacity of defendant to commit the said crime by the county court of Creek county sitting as a j u-venile court.

DOYLE, P. J., and BESSEY, J., concur.