text:
    ELMER ALBERT DUNN v. STATE.
    No. 2923.
    Opinion Filed November 25. 1918.
    (176 Pac. 86.)
    1. PERJURY — Indictment and Information — Allegations. In an information for perjury, the perjury may be alleged in the false swearing as to several different statements, provided the alleged false statements were testified to in the same trial by ■ the defendant charged with the perjury, without rendering such information subject to demurrer.
    2. SAME — Different False Statements — Conviction. In an information charging perjury to have been' committed in two different statements in the. same trial, a conviction may be properly had upon legal proof of the defendant’s having corruptly and knowingly testified as to either one of the said false statements.
    3. CONTINUANCE — Absence of Witness — Requisites of Motion. A motion for a continuance on account of absent witnesses, which fails to show diligence to secure the attendance of such witnesses, and what said witnesses would testify to, if present, and that the said testimony cannot he had from other witnesses, is properly overruled.
    t. PROSECUTING ATTORNEYS — Employment of Attorney at Law. An attorney at law may be legally employed to aid and assist a county attorney in the prosecution of a criminal offense.

      5. TRIAL — Failure to Testify — Instruction. A requested charge of a defendant, who did not testify in the trial, that the jury be instructed not to consider his failure to testify as a circumstance against him, is properly refused.
    6. TRIAL — Argumentative Instructions. It is not error for the court to refuse requested instructions which are argumentative.
    7. FORMER JEOPARDY — Plea of Former Conviction — Identical Offense. In a prosecution for perjury, a plea of former conviction for larceny in the case in which the perjury -was alleged to have been committed was properly excluded, as the conviction was not for the identical offense charged in the present case.

      Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.

    Elmer Albert Dunn was convicted of perjury, his motion for new trial was overruled, and he brings error.
    Affirmed.

      J. P. Wishard, for plaintiff in error.

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

The plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of perjury, and sentenced to be imprisoned at hard labor in the state penitentiary at McAlester, Okla., for a period of ten years. Motion of defendant for new trial being overruled, he prosecutes this appeal by case-made.

The amended information upon which the defendant, was tried charges:

"That on or about said 14th day of January, 1915, a certain criminal action No. 823 was pending in the district court of Blaine county, state of Oklahoma, and undetermined, at Watonga, in said Blaine county, wherein the state of Oklahoma was plaintiff, and the said Elmer Albert Dunn was defendant, and wherein the said state of Oklahoma prosecuted the said Elmer Albert Dunn on information charging that on the-day of November, in the year of our Lord nineteen hundred and twelve, at and within said county and state, the said Elmer Albert Dunn did then and there unlawfully, willfully, intentionally, knowingly, wantonly, maliciously, and feloniously, and by stealth, take, steal, and drive away certain personal property, to wit, two black mares, which said black mares were then and there the property of, and owned by, one William Fletcher, and were then and there in the possession of one Lump Mouth, and against the will and without the consent and without the knowledge of him, the said William Fletcher, or of him, the said Lump' Mouth, and with the unlawful and felonious intent on the part of him, the said Elmer Albert Dunn, then and there to deprive the owner, the said William Fletcher, and the said Lump Mouth, thereof, and with the unlawful and felonious intent on the part of him, the said Elmer Albert Dunn, then and there to convert the said two black mares to the use and benefit of him, the said Elmer Albert Dunn, contrary to the form of statute in such case made. and provided, and against the peace and dignity of the state.
“And on or about said 14th day of January, 1915, in said Blaine county,' the said criminal action No. 823 was on trial in said district court with the Honorable Thomas A. Edwards, regular judge of said district court, presiding, and the Honorable E. R. Taylor, court clerk of said Blaine county, present and acting as clerk of said district court, and the said district court then and there had jurisdiction to try and determine said criminal action and the issues involved therein, and the name of the said defendant appeared variously in the papers, files, records, and proceedings therein, as Elmer Albert Dunn, Albert Elmer Dunn, E. A. Dunn, A. E. Dunn, Elmer Dunn, and Jack Dunn, but all such names being names of one and the same identical person, to wit, the defendant herein, and the defendant in said criminal action No. 823.
“And on or about said 14th day ovf January, 1915, in said Blaine county, when said criminal action No. 823 was on trial before said court as aforesaid, the said Elmer Albert Dunn having taken an oath on said trial and before said court as a witness in his own behalf that he would testify as such witness on such trial to the truth, the whole truth, and nothing but the truth, said oath having been taken by the said defendant before and administered by, the said E. R. Taylor, court clerk of said Blaine county, and acting as clerk of said district court, in open court and before said court, he, the said E. R. Taylor, as such court clerk being then and there duly qualified and authorized to administer such oath and the same to the said defendant, and the said defendant then and there willfully, unlawfully, knowingly, falsely, corruptly, and feloniously, and while under such oath, and contrary to such oath, and after he had taken such oath, and the same had been administered to him as aforesaid, and on or about the 14th day of January, 1915, in said Blaine county, on the trial of said criminal action and said charge of felony, did take the witness stand as a witness in his own behalf, and testify and state as follows, to wit:
“That he, the said defendant, bought the said black mares on the 21st day of November, 1912, from an Indian who gave his name as Elick Bird, and that he, the said defendant, gave the said Indian a check for said mares in the sum of one hundred fifty dollars ($150.00), and that said Indian brought said check to the defendant at the stockyards in Greenfield, Blaine county, state of Oklahoma, on Monday, November 25, 1912, and that said Indian on the last-named date indorsed said check by writing the name of Elick Bird on the back thereof in the Greenfield State Bank, and that said defendant gave said Indian an indelible pencil with which to write his name on the back of said check, and saw him, the said' Indian, write.his name on the back of said check in said bank, and on said last-named date he, the said defendant, gave the said Indian in said bank the sum of one hundred fifty dollars ($150.00), and that he, as the defendant, and S. E. Sutherland, sheriff of 'said Blaine county, and said William Fletcher were on the train coming home from Little Rock; that the said defendant and the said William Fletcher went into the smoking car, and the said William Fletcher said to the said defendant, T don’t believe you stole these mares, and you don’t act like you were guilty, and if you will give me $40 more for my expenses I will say no more about it, and not prosecute this case;’ and that the said defendant did not testify or state under oath at the former trial of said criminal action No. 823 in said district court on September 14th, in answer to the question as follows, to wit. * * *
“That .all of said testimony and statements so made and given by the said defendant as aforesaid were, material to the questions in issue,' and to the questions and issues to be tried and determined and joined on said trial, and in said criminal action No. 823, and were false, and were so made and given corruptly, and were known to the said defendant to be false at the time they were so testified to and stated by the said defendant as aforesaid, in this, to wit. * * *”

The defendant moved for a continuance upon the ground of the absence of the witnesses Morrissey and Brent, which' was overruled, and the defendant insists that the court committed prejudicial error in overruling the said motion. We have carefully examined said application for continuance, and are of the opinion that the court did not abuse its discretion in overruling said motion, for the reason that due dilligence was not shown to secure said •witnesses, and that, in addition, said application does not show what the testimony of such absent witnesses would be, or that the same facts which would be given by said witnesses could not be had by other witnesses.

“Application for continuance in a criminal case on account of the absence of witnesses which fails to show that due diligence has been used to secure the attendance of said witnesses and which does not show that the same facts cannot be proved by other witnesses, is not súf-ficient.” (Katie Mosley v. State, 12 Okla. Cr. 402, 157 Pac. 708.)

In Boswell v. State, 8 Okla. Cr. 156, 126 Pac. 828, it is said:

“It is the settled rule of this court'that an application for a continuance is addressed to the discretion of the trial court, and that the refusal of the court to grant a continuance will not be reversible error upon appeal, unless upon an examination of the entire record it appears that appellant was deprived of some substantial right thereby, to his injury. An application for a continuance should state the name and place of residence of each absent witness. It should then allege that due diligence has been used to secure the attendance of said witness and should disclose the diligence as to each witness by stating the time at which the subpoena was issued, and when and by whom served, and that the witness was summoned to be present at the time of trial. * * * The motion should allege in general terms that the testimony of the absent witness is material and set out the facts expected to be proven by each absent witness and it must also contain such statements as will show that such expected evidence is both competent and material. If the testimony of the absent witness cannot be procured from any other source, this fact should be stated. If it can be procured from some other source, the motion should contain a statement as to why it was not so obtained. But, if such ab-. sent testimony can be obtained from some other source, che motion must state the special facts which in reason and justice would entitle the defendant to continuance in order to enable him to obtain cumulative evidence. A motion which does not comply with either of these requirements is bad upon its face.”

The defendant demurred to the information upon the grounds:

(1) That said information does not state facts sufficient to charge an offense against the defendant under the laws of the state of Oklahoma.
(2) Said information does not state facts sufficient to’ constitute any crime known or punishable under the laws of the state of Oklahoma.
. (3) That said information is too indefinite and uncertain, and does hot sufficiently apprise this defendant of the true nature of the offense against which, he is required to defend.
(4) That said information is not sufficient in its charge, or specific and definite to the extent of informing him of the nature of the offense concerning which he is to defend, as provided by the Constitution of the United States.

It is earnestly argued in brief of the defendant that more than one offense is charged in the information, and this argument, we think, is without force. It is true that the information charges in one count several false statements, and this, we think, may be legally done, where said statements are made in the same proceeding or trial.

“An indictment for perjury may embrace a single count all particulars in which defendant is alleged to have sworn falsely, but each fact sworn to should be set in a distinct and separate assignment, and each traversed, so that, if either assignment is proved, the indictment may be sustained. If one assignment of perjury is sufficient, an- improper assignment in connection with it will not vitiate the indictment. The fact that an indictment charges two distinct false statements under oath does not render the indictment bad, if the statements of both were given under oath and in one proceeding.” (30 Cyc. p. 1439 [9].)

It is true that the information in this case is unnecessarily prolix, but it sufficiently covers the elements of the offense of perjury, by alleging:

(1) A jurisdictional proceeding.
(2) That the defendant was sworn to give evidence therein.
(3) His testimony.
(4) Its falsity.
(5) Its materiality as to the issue;

In short, the information fully avers each element necessary to constitute the offense of perjury, and gave the defendant notice of the offense with which he was charged, and this is all that was necessary, and the court did not commit error in overruling the. demurrer to the information.

In Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954, it is held:

“An information is sufficient, if it pleads every element essential to charge the crime pleaded in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to meet.”

The defendant filed a plea of former conviction, based upon his conviction for larceny in the identical case in which the perjury in the instant case is alleged to have been committed, and the court refused to permit said plea to be filed, as said conviction was not-for the identical offense charged in the information in the instant case. We are of the opinion that the said plea of former conviction is without the slightest merit, and the court did not err in refusing to permit such plea to be filed.

It is earnestly contended by the defendant that the evidence is insufficient to support the-verdict of the jury, and with this contention we cannot agree. The evidence in this case is very voluminous, and we deem it unnecessary to set out the same in detail. The evidence conclusively shows that the defendant was on trial in the district court of Blaine county for the larceny of two mares, of which he was convicted, and which conviction was after-wards affirmed by this court (Dunn v. State, 14 Okla. Cr. 452, 172 Pac. 463) ; that the defendant was duly sworn in open court as a witness in his own behalf in said cause; that on the trial of said cause the defendant testified substantially that the two mares alleged to be the subject of the larceny had been purchased by him from an unknown Indian, one whom he had never seen before nor since such purchase of such mares; that on the 21st day of November, 1912, defendant bought the two mares; that he purchased them in the barnyard, or between the barnyard and the house, on a place defendant had rented; that he first saw these mares in the hands of an Indian, who said his name was Elick Bird; that he was a low, heavy-set, dark-skinned Indian, with short hair; that he came up about 8 or 9 o’clock, and Ermon Riley was present; that he did not see him until he was right at him; that he was riding either a light bay or a sorrel horse, stocking-legged horse, and leading the mares; that the Indian and the defendant passed the time of day, and defendant asked the Indian to get down, and he said he understood that defendant was buying horses, and that he had a team to sell; that he asked $300 for them; defendant looked them over, and did not want them at that price; that the Indian turned and rode away, and as he did so defendant offered him $150, and that the Indian came back and said, if defendant had the cash, he would take it; defendant told him he did not have the cash, but would give him a check on the bank at Greenfield, and that if he would come down there Monday defendant would see that he got the money; that defendant wrote the check out, and it was an overdraft, and gave it to the Indian, who took it; that the Indian asked defendant to put the word “bearer,” instead of “order,” so that .he would not have to be identified; that the defendant took one of the mares then over to his brother-in-law’s after the Indian had turned them into the lot and ridden away; that he did not see him any more until Monday; that the Indian came to him at the stockyards in Greenfield, where defendant had the horses, handed him the check, and said he had not got the money on it; that defendant did not recall who was present at the time; that he and the Indian went to the Greenfield State Bank, and defendant went into the bank and got the money on the check for him; that he made his note for the money and gave it to the bank; that the banker paid him the money on the check, and he gave it to the Indian; that the Indian put the name on the check when defendant handed it to him and told him to indorse it; that the Indian '.remained at Greenfield until he got the money; that after getting the money defendant just walked to the inside door of the bank and handed the money to the Indian; that defendant had got the money from George Matlock; that on the train, when returning to Oklahoma, Fletcher said to him (defendant) : “I don’t believe you stole these mares, and you don’t act like you were guilty, and if you will give me $40 more for my expenses, I will say no more about it, and not prosecute this case;” that the defendant made no investigation to find out whether the Indian owned the mares or not; that he only looked to sée if they had the government brand on them, and made no inquiry about any mark on them, or about any mortgage on them; that this was the first overdraft he ever gave and got an Indian to take.

In the instant case William Fletcher testified that he owned said two mares and as to their loss, about a month previous to the arrest of defendant for the larceny thereof, and that he, together with the sheriff of Blaine county, armed with a warrant for defendant, went to Arkansas, and there found the mares in the possession of the defendant, and that defendant said that he purchased the mares from an Indian and arranged to pay said Fletcher $300 for the mares, of which $40 was paid in cash in Arkansas; that the witness, William Fletcher, the sheriff, and the defendant returned to Oklahoma together, and that the witness did not state on the train, or at any time, to the defendant: “I don’t believe you stole these mares, and you don’t act like you were guilty, and if you will give me $40 more for my expenses, I will say no more about it, and not prosecute this case.”

George Matlock testified that he was the president of the Greenfield State Bank; that he remembered the occasion of Jack' Dunn loading and shipping from Greenfield a carload of horses on November 25, 1912; that he was in the bank attending to business; that he did not remember seeing any Indian in there that day with Jack Dunn, nor did he see one indorse a check in company with Jack Dunn that day; that he did not think he ever knew an Indian by the name of Elick Bird; that he did not see Jack Dunn give a check for $150 to an Indian that day; that the check exhibited to witness looks like the check that was presented to the bank that day; that Dunn brought that check to the bank, and at that time witness noticed no Indian with him; that he gave Mr. Dunn the money on the check, and did not see him give any money to 'an Indian there, but defendant took the money and put it in his pocket and started out of the bank; that this transaction was in the morning, about 9 or 10 o’clock, and then in the evening, about 2 or 3 o’clock, he came back there, brought back $150, and left it there; he did not tell the witness that it was the same money; that Jack Dunn came in'and said he had bought a team from an Indian, and wanted the money to pay for it; that witness told him that he did not know why he wanted to do that; that he owed the bank enough already, and already had a carload of horses to ship; that defendant then told witness that he had already issued the check for the Indian, and witness, asked him where the check was, and he said he had it in his pocket, and he said he had told the Indian that he did not have any money in the bank, and that he would have to make some arrangements, before paying the check, and had told the Indian, if he would come over to Greenfield that day, he would make the arrangements and pay the debt; that the witness cashed the check personally and handed defendant the money; that witness went into the banking room and brought the money back into the private office, and, .while he did not say theré was no Indian there, he did not know; that from defendant’s conversation witness inferred that the Indian was either in town, or going to be that day, to get the money ; that there had been no Indian in there about a check before that time, and the first time the check was mentioned to him was when Jack Dunn came in.

There were some seven or eight Indians who each testified as to long residence in the neighborhood where the defendant lived, and where the mares were alleged to have been stolen; that they did not know, and had never heard of an Indian by the name of Elick Bird.

There was uncontradicted evidence that the mares, at the time the defendant alleged that he bought them, were of the value of $150 to $175.

There was no evidence whaever as to the indorsement by Elick Bird of the check referred to.

In short, the defense of the defendant rests upon the theory that he honestly bought said mares, and consequently his testimony in regard to the same was true, and When the details of the purchase, as given by the defendant, are shown, it must strike any thinking man as being beyond any possibility of a doubt that he did not make such purchase; his evidence in regard thereto being inherently improbable.

It being shown by the uncontradicted testimony of some seven or eight Indians that no such Indian as Elick Bird was ever known to have lived in the section in which witnesses or defendant lived, and where the mares were stolen, and there being no evidence whatever that the defendant, after having been arrested, sought to find such a person as Elick Bird, we take it as conclusive that the evidence is sufficient to show that Elick Bird was a myth — a part of a fabricated defense.

“In a prosecution for larceny of live stock, the fact of the theft having been proven, the question was whether the defendant stole the cattle, or bought them without notice that they had been stolen. Held, the presumption from possession of property, recently stolen, is one of fact, to be drawn or not, as the jury may determine, in connection with and in consideration of all the evidence in the case.” (Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560; Slater v. United States, 1 Okla. Cr. 285, 98 Pac. 110.)

The president of the bank upon which the check was drawn testified that he had never heard of such check until the defendant brought it in there and stated that he had it in his pocket, and that he went into the inner office and gave the money to .the defendant, who put it in his pocket, and that he did not see any Indian present with him; that the defendant left the bank, and returned that evening, and brought back the money. In the absence of evidence to the contrary, may it not be reasonably presumed that the said check was manufactured, a mere effort on the part of the defendant to fabricate a defense? We think that such conclusion may be properly reached.

Another pertinent inquiry is the reasonableness of a stranger accepting from a stranger a check, when informed, as the evidence shows the Indian was informed, that there was no money in the bank to meet it, that it was an overdraft, when this is coupled with the fact that there is no evidence to show that the defendant made any inquiry, after his arrest for said larceny, to find and produce Elick Bird, and especially in view of the undenied evidence that the value of the mares at the time of their alleged purchase by defendant was $150 to $175, that when defendant was caught with the mares in Arkansas he, without objection or protest, arranged to pay the owner of said mares $300 for them.

If the defendant had honestly purchased said mares, such purchase would have been a defense to the larceny with which he was charged of said mares, and consequently the defendant’s testimony on the trial of the defendant for the larceny of said mares was material. We also think that the evidence sufficiently shows that, at the time the defendant testified in said case of larceny against him that he had bought said mares, he corruptly so testified, knowing that said testimony was false.

Every ingredient of the crime of perjury being shown by the evidence, the court did not err in overruling the demurrer thereto.

The defendant also complains that private counsel was employed in the prosecution of the case; but, it not appearing that the county attorney ever lost control of the case, this contention is without merit. Reed v. State, 2 Okla. Cr. 590, 103 Pac. 1043; Hartgraves v. State, 5 Okla. Cr. 274, 114 Pac, 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180 — which cited cases find support in the decisions of many of the states of the Union.

The defendant further complains of paragraphs 5, 6, 7, 81/2, 9, and 10 of the general instructions given by the court, each of which instructions we have carefully examined, and are of the opinion that, when taken as a whole, the instructions are not subject to the contention that the same invade the rights of the defendant.

“The instructions must be considered as a whole, and, when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient.” (Updike v. State, 9 Okla. Cr. 124, 103 Pac. 1107; Tom Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224.)

The defendant requested the giving of instruction No. 1:

“The jury are instructed that any defendant in a criminal case shall be permitted to testify in his own behalf therein, but the failure of any defendant to testify shall not be taken as a circumstance against him, and in this case the «jury should not take into consideration the fact that the defendant has failed to testify as a witness in his own behalf, and the jury are further instructed not to allude to this fact in their deliberation in arriving at a verdict”

—and duly excepted to the refusal of the giving of said charge. “The refusal to give this charge was not error.” C. E. Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

The defendant also requested instructions numbered 2 and 3 respectively. Each of said instructions is argumentative, and therefore properly refused.

The motion for a new trial was properly overruled.

Finding no error in the record prejudicial to the substantial rights of the defendant, the judgment of the lower court is in all things affirmed.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    FRED IRVIN v. STATE.
    No. A-2934.
    Opinion Filed November 25, 1918.
    (176 Pac. 83.)
    1. INDICTMENT AND INFORMATION — Time of Offense — Demurrer, Whan time is not the essence of the offense charged, an indictment or information which alleges that the offense was „ committed during the months of July and August, 1916, is not subject to demurrer on the ground that the same is too indefinite as to time.
    2. SAME — Place of Offense. An indictment which avers that, the offense was commuted by permitting a dwelling on the west side of Main street in the town of Commerce, in the county of Ottawa and state of Oklahoma, to be used as a place for y 'rsons to visit for the purpose of unlawful sexual intercourse, sufficiently avers the place where the offense is charged to have been committed.
    3. DISORDERLY HOUSE — Offense—Sufficiency of Indictment. Au indictment, which alleges that during the months of July and August, 1916, the defendant owned and controlled a house in the town of Commerce, in Ottawa county, Okla., and let sa:.d building, knowing that it was to be used for the purpose of persons to visit for unlawful sexual intercourse, charges an offense under s 'ction 2469, Rev. Laws 1910.

      4. SAME — Offense—Sufficiency of Evidence. Where the uncontra-clicted evidence shows that the own'n- of n building, controlled by him, rented same by the week to persons engaged in prostitution, and after the expiration of the first week of such renting was informed that said building was being used by its occupants for the purpose of prostitution, and the accused continued to rent said building to the same tenants, against the protests and objections of persons living adjacent to said house, the evidence sufficiently supports a judgment of conviction for permitting a building to be used for the purpose of unlawful sexual intercourse.

      Error from County Court, Ottawa County; Vern E. Thompson, Judge.

    Fred Irvin was convicted of a misdemeanor, and he brings error.
    Affirmed.

      A. C. Totone, for plaintiff in error.

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

This is an appeal from a judgment of conviction of the plaintiff in error, hereinafter called defendant, in the county court of Ottawa county, upon indictment for misdemeanor found in the district court of said county and transferred by the said district court to the county court of said county because the offense charged in said indictment is a misdemeanor.

The charging part of the indictment is as follows:

“That at and in the county of Ottawa, and in the state of Oklahoma, during the months of July and August, 1916, Fred Irvin, unlawfully, willingly and knowingly, allowed and permitted a certain frame' building described as a two-story barn made over into a house, and located on the west side of Main street, in the town of Commerce, in the county of Ottawa and state of Oklahoma, being immediately in the rear of the residence of the said Fred Irvin, which he, the said Fred Irvin, owned and controlled, to be used as a place for persons to visit for the purpose of unlawful sexual intercourse.
“And so the grand jurors aforesaid, upon their oaths aforesaid, do find and say that the said Fred Irvin, did in the manner and form aforesaid, commit the crime of permitting a building to be used for the purpose of prostitution contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

The defendant demurred to the indictment upon the ground that the same is too indefinite and uncertain as to the time and place of the alleged offense, and that said information or indictment does not state facts to constitute the offense attempted to be charged, or any public offense. This demurrer was overruled and exceptions duly saved.

We are of the opinion that the indictment does state facts sufficient to constitute the offense charged — permitting a building to be used for the purpose of prostitution— and with sufficient certainty states the .time and place where the offense was charged to have been committed, and definitely informs the accused of the offense with which he is charged so as to enable him to prepare for trial, and the court did not err in overruling the demurrer to said indictment.

“The common-law doctrine of a strict construction of criminal law, and all proceedings in criminal cases, and that an indictment should be certain to a certain intent in every particular, is not in force in Oklahoma.
“If an indictment is framed in such language as to enable a person of common understanding to know what is intended thereby, and sufffciéntly certain to enable a defendant to prepare his defense, and to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense, such indictment is sufficient.” (J. W. Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102.)
“When time is not the essence of an offense, the state is not confined in its proof to any specific date, but it may be proven at any time within the statute of limitations; and in such cases a conviction or acquittal will operate as a bar to a subsequent prosecution for this .offense at any time prior to the filing of the information or indictment.” (Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143.)
“The precise time at which an offense was committed need not be stated in an indictment, but it may be alleged to have been committed at any time prior to the filing of such indictment, except in cages where time is a material ingredient of the offense.” (Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.)

We deem it unnecessary to set out in detail the evidence in this case, as, after a careful examination of the same, we think there is sufficient evidence to show beyond a reasonable doubt that the defendant owned and controlled the building in question and rented it by the week to women of loose morals, knowing after the first week of said renting that the building, which was near defendant’s home, was being used by said women as a place for persons to visit for the purpose of having unlawful sexual intercourse, and that the attention of the defendant was frequently called by citizens living adjacent to said building to the purpose for which said building was used, and protest made to said defendant against the continued use of said building for said immoral purpose, and begging that the same be abated.

The statute upon which this indictment is predicated is as follows:

Section 2469, Rev. Laws 1910: “Any person who lets any building or portion of any building, knowing that it is intended to be used for any purpose declared punishable by this article, or who otherwise permits any building or portion of a building, to be so used, -is guilty of a misdemeanor.”

Said article referred to in said section 2469 declares punishable, as a misdemeanor, the keeping of a place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene, or indecent purpose.

The uncontradicted evidence in this case shows that the said house which was used for the purpose of prostitution was owned and controlled by the defendant; that he had base women as his tenants thereof, and that he rented the house to them by the week, and certainly, after the first week, knew that such tenants were engaged in prostitution ; and therefore it clearly appears that he had knowledge of the character of the house, and the purpose for which it was used, and was guilty of permitting the house to be used as a place for persons to visit for the purpose of unlawful sexual intercourse, and the court did not err in overruling the demurrer to the evidence.

The defendant further complains of the general instructions given by the court, to which exceptions were saved. / We have carefully examined each paragraph of said instructions and find that not any one of them substantially invades the rights of the defendant, and the court did not err in its general instructions.

We have thoroughly considered the requested instructions which were refused by the court and exceptions saved, and are of the opinion that the court did not commit prejudicial error in refusing to give either of said requested instructions, for the reasons that said instructions are either not germane to the issues involved in this case, or are covered by the general instructions given.

We have carefully considered the motion for- a new trial, especially the ground that the grand jury which preferred the indictment was an illegal grand jury, and the refusal of the court to permit defendant to offer testimony showing such illegality, and are of the opinion that in overruling said motion the court did not commit prejudicial error.

Finding no material errors in the record, the judgment of the trial court is in all things affirmed.

DOYLE, P. J„ and MATSON, J., concur.


author: PER CURIAM.

text:
    ARTHUR BARNES v. STATE.
    No. A-3117.
    Opinion Filed November 30, 1918.
    (176 Pac. 83.)
    APPEAL AND ERROR — Affirmance on Motion for Want of Prosecution. Where an appeal was set for submission at November, 1918, term of Criminal Court of Appeals, the appeal having been docketed on August 17, 1918. and no brief was filed for defendant, and no counsel appeared for him to orally argue case on submission, motion of Attorney General to affirm conviction for failure to diligently prosecute appeal would be granted.

      Appeal from County Court, Okmulgee County; Dudley C. Monk, Judge.

    Arthur Barnes was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

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

This is an appeal from the county court of Okmulgee county, in which court the defendant was convicted of the crime of unlawfully conveying intoxicating liquors, and his punishment fixed at imprisonment in the county jail for a period of six months and to pay a fine of $500.

The evidence discloses that the defendant, together with other persons, conveyed by automobile about 120 quart bottles of whisky from a place where the same had been stored about five miles north of the city of Okmulgee in Okmulgee county, Okla., to the residence of a negro named Sam Simpson, located in the city of Okmulgee.

The co'nviction of the defendant was based largely upon the testimony of an accomplice, who assisted in hauling the liquor, but the testimony of the accomplice is sufficiently corroborated by other competent evidence, which tends clearly to connect the defendant with the commission of the crime, and this, taken in connection with the accomplice’s testimony, is sufficient to sustain the conviction. This case was set for submission at the November, 1918. term of this court, the appeal having been docketed on August 17, 1917. No brief has been filed in behalf of the defendant, nor did any counsel representing him appear to orally argue the case at the time of its submission. The case was submitted on a motion of the Attorney General to affirm the same for failure to diligently prosecute the appeal.

The motion of the Attorney General to affirm the judgment for said reason is sustained, and the judgment of conviction is affirmed.


author: MATSON, J.

text:
    ED KINZER v. STATE.
    No. A-2987.
    Opinion Filed November 30, 1918.
    (170 Pac. 92.)
    1. LARCENY — Corpus Delicti — Sufficiency of Evidence. Evidence examined, and held .sufficient to establish the corpus delicti of the crime of grand larceny.
    2. APPEAL AND ERROR — Evidence—Voluntary Confessions — Burden of Proof — Burden of Establishing Error. Voluntary confessions made by the defendant are admissible in evidence. Where confessions of defendant are admitted in evidence, the burden is upon the appellant in this court to show affirmatively that any such confession was obtained by compulsion or duress, and in such a manner as to violate the defendant’s constitutional privilege against self-incrimination. Where there is a conflict between the evidence for the state and that for the defendant as to whether or not a confession was voluntarily made, and the trial court admits evidence of such confession without objection or exception thereto, the burden upon appellant of affirmatively establishing error is not sustained.

      Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge. ■

    Ed Kinzer was convicted of the crime of grand larceny, and he appeals.
    Affirmed.

      Joe S. Eaton, for plaintiff in error.

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

This is an appeal from the district court of Okmulgee county; the defendant having been convicted in that court of the crime of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for a period of one year.

The contention is here urged that there is no competent and legal evidence tending to establish the corpus delicti of the offense. In this connection it is claimed that the conviction was based largely upon purported extrajudicial confessions of guilt made by the defendant, which said confessions are not sufficiently corroborated by proof aliunde of the corpus (delicti.

The defendant was charged with the larceny of 700 feet of 214-inch manila cable, of the value of $90, of the personal property of “Reynolds & Burns,” a copartnership composed of C. E. Reynolds and J. R. Burns. The taking of the same is alleged to have been on or about the 5th day of May, 1915.

C. E. Reynolds, one of the partners doing business under the firm name of “Reynolds & Burns,” testified that such firm was engaged in drilling oil wells, and had immediately prior to the 5th day of May been engaged in drilling an oil well on the farm of Lee Morgan, located on the S. W. 14 of the S. W. 1/4 of section 17, township 14 N., range 15 E., in Okmulgee county, Okla., and had completed said well a short time before the 5th day of May, 1915, and among other property left near said completed well was a quantity of manila drilling cable; that about 700 feet of 214-inch manila cable disappeared without the knowledge or consent of the firm; that thereafter the witness went to the junk yard of Abe Ball in the city of Okmulgee, and discovered some cable of the same kind lost by his firm in a pile of junk at said junk dealers, the cable having been cut up into lengths of about three feet each. The witness could not- positively identify the cable as that lost by him, but identified it as the same kind and make of cable, and testified that it was worth about $100.

On cross-examination the witness testified that, when he went to Ball’s junk yard, he found in the neighborhood of a carload of cable, some of it of the same make that was lost by his firm; that he could not undertake to identify the cable, other than that it was the same kind as lost by him.

Orvel Thompson, the sheriff of Okmulgee county, testified that he arrested the defendant, Kinzer, something like two weeks after the cable had been reported stolen; that he had a talk with the defendant about the cable that had been stolen from Reynolds & Burns’ well, after the defendant was arrested, in the sheriff’s office; that the defendant first denied that he took the cable, but afterwards owned up to it; that defendant said that he went north of Lee Morgan’s house and got some cable, and then came back and went east and got some east of the house; that it was stolen in the nighttime, and that Claud Gorman and some other fellow was with him; that they went there in a wagon, driving defendant’s father’s team, and brought the cable to Okmulgee and sold it to Abe Ball.

On cross-examination the witness testified that he asked defendant questions, and that the admissions made by defendant were in answer to questions propounded by the witness; that, before the defendant confessed to having taken the cable, the witness confronted him with Claud Gorman, who was at that time confined in the county jail. The witness also testified that he did not remember whether or not he called the defendant a liar before he confessed to having been implicated in the larceny of the cable.

The witness also testified that, shortly after the defendant confessed his connection with the larceny, he was taken over to the justice of the peace court of one Shields for arraignment and examination; that, when the said j us-tice of the peace arraigned the defendant, he said, “Well, I just as well plead guilty; I am guilty;” that thereafter the father of the defendant and some attorney appeared in the justice court, and the plea of guilty was withdrawn, and a plea of not guilty entered, and a change of venue taken from such justice of the peace to the justice court of one Russell, where a preliminary examination was after-wards had. ,

H. B. Reed, another witness, testified that he was a constable in Okmulgee county, and that he was present in the justice of the peace court of Shields when the defendant was arraigned and pleaded guilty to the charge.

C. J. Shields, the justice of the peace, testified that the defendant was arraigned in his court on the charge of stealing this particular cable, and that he had pleaded guilty thereto after having been apprised of his constitutional rights, and told that he was charged with a felony, but that shortly thereafter the father of the defendant appeared with an attorney, and the plea of guilty was withdrawn, and a change of venue taken to Mr. Russell’s justice of the peace court, and that the witness made no record in his docket of anything that occurred before him.

Sadie Ball testified that she was the daughter of Abe Ball, and knew the defendant, Ed Kinzer; that she had seen him several times -when he brought junk to her father’s junk yard; that he had brought cable there about three different times; that he brought some, there cut in three-foot pieces; that the defendant came there on or about the 5th day of May, 1915, and brought some cable, which was cut up into pieces; that it was good cable, and could have been used as cable, had it not been cut up in small pieces; that there was another man with the defendant, that she took to be his brother; that witness bought the cable from the defendant, and paid him by check given by her mother for $20.50, which check witness identified, and the same was introduced in evidence, dated May 5, 1915, and payable to the order of J. P. Kinzer, for $20.50, signed by Y. Ball, and bearing the indorsement of J. P. Kinzer on the back thereof, and paid by the Citizens’ National Bank of Okmulgee on the 5th day of May, 1915.

This witness positively identified the defendant as the person to whom the check was given, and who brought the cable to the junk yard, and stated that the defendant told her to make the check payable to J. P. Kinzer.

On cross-examination, the witness testified that the defendant had brought cable there before the 5th of' May, 1915, she thought on several different occasions, but she could not remember the exact dates; that he had been there as often as three or four times a week, would then quit a while, and then come again with cable; that somebody was with him each time he came there; that defendant said that such person was his brother; that parties were paid by check when cable was brought there, and witness remembered that one check was made to Will Kinzer; that defendant was along when that check was given.

Witness also testified that defendant was paid at the rate of $1.50 a hundred for the cable; that, when defendant brought the cable there, it had been weighed at Carey’s scales, and defendant brought the ticket with him; that defendant was paid according to such weight.

The defense interposed was an alibi; several relatives of the defendant testifying that the defendant was at the residence of one of his uncles, Wagoner county, on.a farm about seven miles north of the town of Haskell, in said county, from about the 5th day of May, 1915, to and including the 15th day of May of said year.

The evidence of the defendant’s witnesses as to the particular day on which he arrived in Wagoner county was somewhat contradictory; some witnesses testifying that he was there on the 5th day of May, while others place his appearance in that community as late as the 15th day of May. Two witnesses for the defendant testified that his general reputation for honesty and fair dealing was good.

The defendant took the witness stand in his own behalf, and testified that he left home on the 4th day of May, 1915, and was at his uncle’s home in Wagoner county on the 5th day of May, arriving there between 12 and 1 o’clock on said day, and that he stayed on his uncle’s farm from that time up until the 16th day of May, 1915, when he returned home and was afterwards arrested, charged with this crime.

The defendant also testified as follows:

“Q. I wish you would just tell the jury whether you ever hauled any rope down here, and where you got it, and about when it was. A. I did. I hauled one load of rope in; I don’t remember the date. I hauled the rope for Claud Gorman and another fellow; they told me they would give me $3 for bringing it in for them; there was 900 pounds of it, and I got a dollar a hundred; they gave me $3 for bringing it in for them. I don’t know how they managed their part of it, nor nothing about it; they just gave me $3. I don’t know whether they stole the rope, or how they got the rope.
“Q. Tell the jury all the facts, how you came to get the rope, and all about it. A. I met Claud Gorman about 2 o’clock one evening, and he was telling me about this fellow had some rope over there, and I was hauling ice out of Okmulgee at the time; he knowed it, and he said this fellow wanted to get somebody with a team to haul the rope in for him, and he told me it was on Lee Gorman’s place. I don’t know what section it is, but we went over to get the rope about sundown, hardly sundown when we drove in there, and we br.ought it into Okmulgee the next day.
“Q. And took it down? A. Yes, sir.
“Q. Where did you weigh the rope? A. At the elevator, across the railroad track.
“Q. Is that Mr. Carey’s place? A. I don’t know whose place.
“Q. That is the place, just across from the depot? A. Yes, sir.
“Q. Where was this rope when you got it? What was its condition? A. This rope, when I seen it, was in three pieces and scattered out.
“Q. It was how? A. It was in three different pieces; it was laying there with a whole lot of mud over it; it had been overflowed, and there was mud on it.
“Q. Do you mean three piles of it? A. Well, three places, yes; it was all around the same well, but it was in three different pieces; three different parts of it.
“Q. You mean there was just three parts of the rope? A. Yes, sir; three pieces of the rope; it was in three different places.
“Q. How long was the rope? A. Well, I don’t know how long the rope was; I don’t know nothing about the rope myself; I don’t know how it measures, but there was 900 pounds of the rope.
“Q. When you got there, was it cut up in pieces, and how long were the pieces? A. I don’t know; those great long pieces we just coiled them up in the wagon; the three pieces altogether weighed 900 pounds.
“Q. How was this rope out there at that time? Was it all in one place, or what was the condition? A. The well had been drilled, and they had moved — carried the stuff away from there; but this rope is all I seen; there wasn’t no other tools around there as I noticed.
“Q. I hand you that check, and ask you if you ever saw that before? (handing witness State’s Exhibit A.) A. I did not.
“Q. State whether or not that is your signature on the back of it. A. It is not my signature.
“Q. Whether you signed that, or is that your writing? A. No, sir; it is not.
“Q. Is that your name? A. N|o, sir.
“Q. Whose name is that? A. That is my brother’s name.
“Q. Where is your brother? A. I couldn’t tell you where he is,
“Q. Where did he live at that time? A. Well, he lived at Haskell.
“Q. Now, did you ever receive that check from Sadie Ball, or any one else, and cash it? A. No, sir; I never received a check from Sadie Ball at no time.
“Q. Did you plead guilty over here in Shields’ court? A. No, sir; I didn’t.
“Q. Just tell the jury what you did. A. Well, sir, I was down there in Mr. Thompson’s office, and he asked me questions, and I would make an answer, and he would call me a damn liar; and every time I would make an answer, when he would ask a question, he would call me a damn liar; and he taken me over to Shields’ court, taken me in there, and he says, ‘Are you guilty or not guilty?’ and I says, ‘It seems like you are trying' to make me guilty.’ That is all I said to him; I didn’t even say ‘Yes, sir’ or “No.’ ”

On cross-examination the defendant testified in part as follows: ■

“Q. And you didn’t tell Mr. Shields that you were guilty? A. I told him I hauled a load of rope in here, which I did; I hauled that rope in here for Claud Gorman and this other fellow; they gave me $3.
“Q. Do you say you didn’t tell him you were guilty? A. No, sir; I didn’t tell him I was guilty; he asked me if I stole the rope; that is what Mr. Thompson ask me, and I told him I didn’t.
“Q. Didn’t Mr. Shields ask you or tell you that you were charged with grand larceny and that was a felony? A. Yes, sir.
“Q. And he asked you if you were guilty or not guilty? A. Yes, sir.
“Q. What did you answer? A. I didn’t say ‘Yes’ or ‘No’; I says, ‘It seems like you fellows are trying to make me guilty anyway.’
“Q. Now, didn’t you say, ‘It seems like they are trying to make me guilty?’ A. I could have said it that way; that was when Mr. Eaton asked me the question, I said that; yes, sir.
“Q. As a matter of fact, you told Mr. Shields you were guilty? A. No, sir.
“Q. And you are trying to squirm out of it now? A. No, sir; I didn’t tell him I was guilty.
“Q. When was it you brought that rope in here? A. Well, sir, I don’t remember the date.
“Q. Who paid you for it? A. Mr. Ball wrote out the check; he didn’t write no check to me at all; I never received no check for anything like that in this town, nor any other town.
“Q. Who went to this place with you, with particular load of rope you hauled ? A. Claud Gorman, and this other fellow with him; I don’t remember his name.
“Q. You don’t remember his name? A. No, sir.
“Q. And never have seen him since? A. No, sir.
“Q. How long after you brought that ropé in here until you were arrested? A. About two weeks, something like that; I don’t remember exactly, something near two weeks.
“Q. Have you ever inquired of Claud Gorman who that other fellow was ? A. Claud Gorman don’t know himself, so he testified in his preliminary hearing.
“Q. Have you ever tried to find out who that other fellow was? A. No, sir.
“Q. You.have never asked a living soul? A. No, sir.
“Q. Nor where he lives? A. No. sir.
“Q. You made no effort to find out? A. No, sir.
“Q. And have no idea who he is and where? A. No, sir.
“Q. What kind of a looking man was he? A. Well, sir, he was a black-mustached fellow.
-, “Q. You say you know where you were on the 5th of May? A. Sir?
“Q. You say you know where you were on the 5th of May? A. Yes, sir; I do, indeed.
“Q. What day was it that you brought that load of rope in here? A. I don’t remember the day.
“Q. You don’t? A. No, sir.
“Q. Who was that check made payable to, the load you brought in here? A. It was made to the other fellow, that one I have never seen since or before.
“Q. Did you see the check? A. No, sir; I did not.
“Q. Where were you when it was written out? A. I was right out there in the wagon.
“Q. In the wagon? A. Yes, sir; right out in front of the office there at Ball’s livery barn.
“Q. Did you go with the man up to the bank to get the check cashed? A. No. sir; I didn’t.
“Q. Where did you and he separate? A. We separated right down there.
“Q. Right at the junk yard? A. Yes, sir; and I went and got my load of ice and went home.
“Q. He didn’t come up in town with you? A. No, sir.
“Q. What kind of a looking man was he? A. Black-mustached fellow.
“Q. Black mustache? A. Yes, sir; slim fellow.
“Q. Was he as tall as you are? A. Yes, sir; hardly as heavy.
“Q. About your height? A. Yes, sir.
“Q. How old? A. He looked to be about 35 or 40, maybe older.
“Q. How was he dressed? A. I disremember his clothes.
“Q. But you do remember he has black mustache ? A. Yes, sir; I remember he has black mustache.
“Q. He didn’t tell you what his name was? A. No, sir.
“Q. You never had seen him before? A. No, sir.”

The foregoing substantially states both the state’s and the defendant’s theory of this case. It is clearly established that certain manila cable was stolen by somebody from the farm of Lee Morgan in Okmulgee county, Okla., on or about the 5th day of May, 1915, and that about the amount of cable so stolen and answering the description of the stolen cable was found in the possession of one Abe Ball, a junk dealer in the city of Okmulgee, said county, very shortly after it was taken from the premises of Lee Morgan, where the firm of “Reynolds & Bums” had left it after having completed the drilling of an oil well on said premises.

Independent of any confession made by the defendant, the state’s evidence tends to show that the defendant hauled an amount of cable answering the description of that lost by “Reynolds & Burns,” and- also about the amount lost, to Abe Ball’s junk yard, where the sam'e was sold by him after having been cut into small lengths, as junk for the price of $1.50 a hundred pounds; the whole amount. totaling at that price the sum of $20.50. It is clear, also, that in the form of regular cable, for drilling-purposes, the amount sold by the defendant would have been worth four or five times what he received for it.

In this connection it is to be noted, also, that the defendant admits that he hauled certain cable to Abe Ball’s junk yard for one Claud Gorman and a total stranger, for which hauling he received the sum of $3; but he denies it was the particular cable stolen, but his memory as to the date he hauled the cable to Ball’s is deficient, and the fact that he admits his connection with such a transaction, although denying guilt of the particular transaction charged, tends clearly to weaken the defense of alibi interposed by him.

The witnesses introduced by defendant to establish an alibi contradict each other as to the particular date that the defendant appeared at his uncle’s farm in Wagoner county; some witnesses placing it as the 5th day of May. 1915, while others swear just as positively that it was the 15th day of May, 1915. These contradictions could hardly be reconciled by the jury, so as to permit the conclusion that the defendant was at a place other than the scene of the crime on the day of its commission.

The check given in payment for the cable sold to Ball was dated the 5th day of May, 1915, and was cashed on said date. It was made payable’ to J. P. Kinzer, and the defendant testified that he had a brother with the initials “J. P.,” but that he did not know the whereabouts of said brother.

The testimony of Sadie Ball clearly connects the defendant with the sale of the cable. The defendant was not a stranger to her, having had dealings with her on former occasions, and she testified that he told her to make the check payable to J. P. Kinzer. While there is conflict between the testimony of the defendant and that of Sadie Ball, connecting him with the sale of the cable on the 5th day of May, 1915, such conflict was for the jury to settle, and it is the opinion of this court that the evidence adduced by the state, when considered in connection with the extrajudicial confessions made by the defendant, sufficiently establishes the corpus delicti of this offense, and is sufficient to sustain the conviction.

Counsel for plaintiff in error strenuously contend that the alleged confessions of the defendant were obtained by threats and compulsion, and were improperly admitted. We find no objection to their admission in the record, nor was any exception taken at any time to the court’s action in permitting testimony relative thereto. The jury considered both the evidence of the state’s witnesses relative to the circumstances under which the defendant confessed, and also heard what the defendant had to say about it. Under the ruling of this court in the case of Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849, these alleged confessions were properly submitted to the jury.

Neither is there any merit in the contention that the confession alleged to have been made before the justice of the peace was treated as a judicial confession. We have searched the record carefully, and are unable to find wherein said confession was so treated by the trial court; in fact, the court’s instructions clearly indicate that these alleged confessions were treated as extrajudicial confessions, and the jury was told that the defendant could not be convicted upon statements acknowledging his guilt un* less the same were corroborated by other testimony.

While no complaint is made of the court’s instructions, we have carefully examined the same, and find them to be fair and impartial in every respect, fully covering the law of the case. No request was made of the court for other instructions than those given, and, after a careful examination of the record, it is the opinion of this court that the defendant is guilty of the crime charged, and he received a fair and impartial trial, and that the punishment assessed is merited by the evidence.

The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    JONES CANTRELL v. STATE.
    No. A-3080.
    Opinion Filed November 30, 1918.
    (176 Pac. 91.)
    J. INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquors, the evidence held sufficient to support the conviction, and that no material error was committed on the trial.
    2. CONTINUANCE — Ruling’—Absence of Witnesses Not Served. A motion for continuance, based on the absence of a witness who has not been served with process and who has left the jurisdiction of the court, should be overruled.
    3. SAME — When Granted. A continuance should only be granted in order that justice may be done, and not in order to enable a violator of the law to escape justice.

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

    Jones Cantrell was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      W. J. Crump, M. G. Bailey, and Don M. Crump, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State. '
   DOYLE, P. J.

On information filed in. the superior court of Muskogee county, charging that Jones Cantrell did in said county on or about the 17th day of March, 1916, unlawfully convey and transport about 10 cases of whisky from a point in Muskogee county unknown to a point in front of No. 1100 on North C street in the city of Muskogee, he was convicted, and his punishment fixed at confinement in the county jail for six months and a fine of $500. He has appealed from the judgment entered upon such conviction.

Several assignments of error challenge the sufficiency of the evidence to sustain the conviction.

The evidence, briefly stated, is as follows:

Doyle Jay testified: That he was a deputy sheriff on the 17th day of March, 1916, and between 2 and 3 o’clock in the morning of that day he and Homer R. Spaulding and Paul Whiteside were going down C street in Muskogee between Kankakee and Lawrence streets and came upon Cantrell and another man in a wagon. The other man was driving, and Cantrell had a shotgun across his legs. That he asked Cantrell what he intended to do with the shotgun and he stated he was going to shoot a negro that tried to hold him up. That he and his party got out of their car and found several sacks in the wagon, containing ten cases, or 120 quarts, of whisky. Cantrell asked if it would be all right for him to go over to the bakery and use the telephone, and he said, “Yes,” and while witness was examining his car, which was leaking gasoline, the fellow that was with Cantrell skipped. That the defendant, Cantrell, said that “the other fellow did not have anything to do with the whisky.”

The testimony of Homer Spaulding, the other witness for the state, was substantially the same.

Obviously, the verdict is in accordance with law, and the testimony is amply sufficient to support the conviction.

It is also insisted that the trial court erred in overruling the defendant’s application for a continuance. It appears from the record that the case was called for trial April 24, 1916, and on application of the defendant was continued for the te'rm. Then on January 20, 1917, the case was called for trial, and the defendant filed motion for continuance, which was allowed. On the 21st day of March the case was again called for trial, and the defendant filed his affidavit for a continuance, wherein he states:

“That he cannot safely go to trial without the testimony of Bill Norton, who if present would testify that A. E. Lorey was driving the wagon in which the intoxicating liquors were foundthat the said Lorey had a gun, and after the wagon was stopped by the officers the said Lorey left the gun in the place of business of Bill Norton and ran away from the officers. . That he has made diligent search and inquiry as to the whereabouts of the said Bill Norton and only succeeded in locating him on Sunday, March 18, 1917, and he caused a subpoena to be issued for said Norton, which was sent to the eheriff of Craig county. That said subpoena was returned showing the witness not found. That Bill Norton resides at Vinita, Craig county, but is temporarily absent therefrom, and his attendance or testimony can be procured at the next term of this court. That he cannot safely go to trial without the tesimony of A. E. Lorey, who if present would testify that he was the owner of the liquor found in the wagon by the officers, and that this defendant got into the wagon with Lorey for the purpose of riding down to the business part of Muskogee, and that this defendant had no interest in said intoxicating liquors. That defendant is informed that said Lorey is now residing at Ft. Worth, Tex. That if the cause is continued until the next term of court he can procure the deposition of said Lorey, who will testify to the facts as herein stated.” ' ,

The county attorney admitted that the absent witness Norton, if present, would testify as set out in the defendant’s affidavit for continuance. To this admission and to the overruling of the motion for continuance on account thereof exceptions were reserved.

Obviously, the motion for a continuance was very properly overruled. There is no reason apparent from the record why this case should not have been prosecuted without unnecessary delay, yet it appears to have been continued on the defendant’s applications until from the filing of the information more than a year had elapsed before the case was tried.

We have examined the other matters discussed by counsel, and have arrived at the conclusion, that there is not even a semblance of merit in the' appeal.

The judgment of the superior court of Muskogee county is therefore affirmed. Mandate forthwith.

ARMSTRONG and MATSON, JJ., concur.


text:
    W. G. DOBBS et al. v. STATE.
    No. A-2882.
    Opinion Filed December 3, 1918.
    (176 Pac. 254.)
    1. TRIAL — Argument- of Prosecuting Attorney — Evidence—Liquors. In a prosecution for unlawfully conveying intoxicating- liquor, it is prejudicial error to allow the prosecuting attorney to tell the jury that the defendant received the whisky to peddle the same when the court had refused to permit the defendant to prove the lawful purchase and purpose for which the liquor was conveyed.
    3. INTOXICATING LIQUORS — Unlawful Conveyance — Insufficiency of Evidence. See opinion for evidence held insufficient to sustain the verdicts.
    3. INTOXICATING LIQUORS — Instruction — Evidence. One defendant, having nothing to do with purchase or transportation of intoxicating liquor and merely protesting its taking by enforcement officer, was entitled to instruction that he should have benefit of reasonable doubt as to his interest in liquors or knowledge that -codefendant was intending to convey, and to be acquitted.

      Appeal from County Court, Grady County; R. E. Davenport, Judge.

    W. G. Dobbs and Joe Bennett were convicted of violating the prohibitory liquor law, and they appeal.
    Reversed and remanded.

      Holding & Herr, for plaintiff in error.

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

The plaintiffs in error, W. G. Dobbs and Joe Bennett, were convicted in the county court of Grady county at the October, 1916, term on a charge of unlawfully conveying intoxicating liquor from one place in Grady county to another place therein, and the punishment of Dobbs fixed at a fine of $250 and imprisonment in the county jail for 90 days, and the punishment of Bennett was fixed at imprisonment in the county jail for 80 days and a fine of $50.

The information charges the plaintiffs in error with unlawfully conveying whisky and beer from an unknown point to a point near Acme in Grady county. The record discloses the fact that these men were residents of that part of Grady county formerly included in the territory of Oklahoma; that they were going on a fishing trip, and the plaintiff in error Dobbs put some beer and whisky in the vehicle for personal use on the trip.

The plaintiff in error Dobbs offered to prove that the whisky in question was a lawful purchase made at Ft. Worth, Tex., and brought into this state at a time when it was lawful to do so, and was for a lawful purpose, to wit, the use of himself and his family. The court refused to permit this evidence (to be introduced. All of the witnesses say that the plaintiff in error Bennett did not have anything to do with the purchase or transportation of the whisky. It seems that all he did which would in any wise offend either the enforcement officer or any one else was to protest against the whisky being taken. He is- not connected with the crime sufficiently to warrant his conviction. On his behalf, the following instruction was requested and by the court refused :

“If from the evidence in this case you entertain a reasonable doubt as to whether or not the defendant Joe Bennett had any interest or ownership in the liquor in question, or had any knowledge that the defendant Dobbs was intending to convey said whisky and beer at the time he accompanied the said Dobbs, you should resolve such doubt in favor of the defendant Joe Bennett, and acquit him.”

No instruction was given to the jury submitting this issue. He was clearly entitled to the same under this record. In fact, there appears to be no reason why he should have been prosecuted.

The plaintiff in error Dobbs offered proof to establish the purpose for which the whisky was ordered. He contended, also, that he was entitled to receive and use the shipment of liquor for lawful purposes as defined by this court in Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644. The court refused to permit this proof. Counsel stated at the time that they expected to prove by the witnesses that the whisky had been purchased lawfully in Ft. Worth/ Tex., and was shipped to the town of Elgin, Oklahoma, formerly Elgin, Oklahoma Territory, and was taken by the plaintiff in error from this point for his personal use. While he was in the act of conveying the same, the liquor was seized by the officers over the objection of the defendant .and confiscated. He also offered to prove that the liquor was not to be sold or used for any unlawful purpose

The court, although he had refused to permit the plaintiff in error to show for what purpose he had received this liquor, did permit the county attorney to argue to the jury that the plaintiff in error received the whisky to sell in violation of the prohibitory liquor law of the state. Objections were made to the argument, exceptions saved, and the proposition brought here for review.

It hardly needs more than a stating of this proposition to condemn it. It is manifestly unjust to refuse a person charged with crime the right to offer proof in explanation or justification of his act, and in the same trial permit a county attorney to argue the very proposition which he desired to explain, and was not permitted to do, as adversely established. It could hardly be reasonably contended that the county attorney was entitled to urge that this plaintiff in error intended to peddle the whisky out at night as a legitimate argument, when the court had denied the plaintiff in error an opportunity to explain the purpose for which he had purchased the whisky and the purpose for which he was conveying the same. Counsel for plaintiff in error had disclosed to the court their contentions under the law and were entitled to have them go to the jury for what they were worth.

The only thing in this record which indicates that the plaintiff in error was a bootlegger or a violator of the law is the argument of the county attorney, which argument is most unfair, in view of the fact that the court refused to permit the plaintiff in error to submit the proof of the lawful purchase and purpose for which the liquor was being conveyed.

For the reasons stated, the judgments herein are reversed, and the cause remanded.

DOYLE, P. J., concurs, and MATSON', J., concurs in the result.


text:
    BILL BROWDER v. STATE.
    No. A-3003.
    Opinion Filed December 3, 1918.
    (176 Pac. 96.)
    CRIMINAL LAW — Habitual Criminal — Insufficiency of Evidence— Former Conviction. In a prosecution under tbe Habitual Criminal Act, held evidence insufficient to support the verdict and >judgment of conviction, in that no proper or competent proof of a former conviction was introduced in evidence.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

      Bill Browder was convicted under the Habitual Criminal Act, and he appeals.
    Reversed.

      J. B. Wilkinson, for plaintiff in error.

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

The plaintiff in error was convicted in the district court of Stephens county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, alleging that the offense charged was a second and subsequent violation of the prohibitory law, in that defendant had been convicted in the county court of Stephens county on an information, and alleging the filing of said information, the trial, verdict of guilty, and the judgment and sentence rendered in pursuance of said verdict. The jury failed to agree upon the punishment, and the court sentenced the plaintiff in error to imprsonment in the penitentiary for the term of two years and that he pay a fine of $50. To reverse the judgment an appeal was. perfected by filing in this court on May 9, 1917, a petition in error with case-made.

The Attorney General has filed the following confession of error:

“We have read every line of the case-made, and are familiar with each step taken in the case.
“There is no motion or demurrer against the information.
“After our investigation, though we are well satisfied of defendant’s guilt, we are not ready to say that he has been tried according to law.
“The information is brought under our statute made for the purpose of punishing repeated crimes and cumulative offenses. See Bishop on Criminal Law, 1-959. Most of the states have these statutes, and most of the statutes differ from each other; hence the difficulty of their construction, and of laying down any general mode of procedure in cases of this kind.
“Our own statute at this time is embraced in section 2 (16), chap. 26, Laws of 1918, page 46. This was based on the Acts of 1911. Our own court has passed on some features of our statute, among other things holding that it is constitutional, that it does not put a defendant twice in jeopardy, and that these offenses must be sufficiently pleaded. See Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637; Fowler v. State, 14 Okla. Cr. 316, 170 Pac. 917.
“It will be seen at once that there must be two or more offenses charged and proved to sustain a conviction.
“In the information in this case a former offense is charged as having taken place in March, 1913, but no record of that case is set out except the verdict of the jury, which reads as follows:
“ ‘In County Court of Stephens County. State of Oklahoma v. Bill Browder, Defendant. No. 1235. We the jury, drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the information herein leave punishment to be assessed by the court. [Signed] W. M. Miller, Foreman.’
“No other portion of the record in that case is proved. We think that this is insufficient. While the practice in this line of cases is not settled in this state, nor in any other that we have been able to find, perhaps upon the account of the difference in statutes, we think that the record of .the former conviction should be pleaded in the original indictment or information and should be admitted to the jury as proof. Were we asked the question as to what the record is, we would say that it embraced at least what is embraced in the transcript of appeal as set out in section 5960, R. L. We are certain that it should embrace the information, or indictment, in the case, and also the judgment following the verdict. See Plea. & Prac. 11-1122; Corpus Juris, 16-1344; Cyc. 22-357.
“By looking at the information in this case we could know what the charge was in the county court case of 1913, but we could never tell it by looking at the verdict, which was' the only paper out of that old case read to the jury. See Corpus Juris, 16, p. 1342, sec. 3159.
“We would apprehend that by parity of reasoning the procedure in .pleading these various offenses should follow, or be similar to the plea of autrefois convict and autrefois acquit. See Bishop’s New Procedure, secs. 809-815. These necessarily include the information, or indictment; the plea, the verdict and the judgment.
“Had we been consulted as to the practice in these cases of habitual criminals and- cumulative offenses, we should have unhesitatingly said let the court with jurisdiction try each separate case; and then when the number was sufficient go into the district court where felonies may be tried and alleged in the indictment or information the offense committed in each case with about the same particularity as laid down in the works on practice for former acquittals and former convictions.
“Ending this point of the confession, we say that we do not think the conviction as alleged of March, 1913, was sufficiently pleaded in the case at bar.
“Then the other point of the case was that the district court tried the defendant in a misdemeanor case; and in trying him we fear it made an error.
“Bill Browder had his two friends (as we think), Homer O’Neal and Fred O’Neal, to come to his house, bringing two or three valises of whisky in pint bottles. They got there about midnight, called Bill up, stayed all night, left the next morning without breakfast, but did not carry with them the whisky. The ■ officers had got wind of the visit of these young gentlemen, made a raid, captured the. whisky there in Bill’s house with nobody present but Bill’s wife and children. Bill himself was gone; swears he didn’t know' one thing about what was in the valises, and pleads utter innocence. True, Bill had been convicted before for violating the whisky laws; Bill admits this. The O’Neal boys had also been caught on whisky charges and Fred had got away.
“We apprehend some danger of this being the requisite kind of possession; but even if the possession was completely proved, there is another element that goes to make up guilty possession that is not anywhere shown in the record; and that is the intent on Bill’s part to violate the law. Guilty possession means the possession plus the guilty intent. As a fact we think privately that Bill was guilty. We do not think That his guilt is either correctly charged or sufficiently proved. Therefore we confess error.”

Upon a careful examination of the record, our conclusion is that the evidence is insufficient to sustain the conviction, in that no proper proof of a former conviction was introduced in the case, and for this reason the confession of error should be sustained.

The judgment is therefore reversed.


author: ARMSTRONG, J. PER CURIAM.

text:
    JOE ESTES v. STATE.
    No. A-3176.
    Opinion Filed October 15, 1918.
    On Rehearing. December 7, 1918.
    (176 Pac. 85.)
    EVIDENCE — Accomplice Testimony — Sufficiency of Coito oration. In a prosecution for assault with intent to kill, the evidence considered, and held, that the testimony of an accomplice was suf-iiciently corroborated by testimony tending to connect the defendant with the commission of the offense.

      Appeal from District Court, Garvin County; F. B. Swank, Judge.

    Joe Estes was convicted of assault with intent to kill, and he appeals.
    Affirmed.

      Stanley & Osborn, for plaintiff in error.

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

The plaintiff in error, Joe Estes, was convicted in the district court of Garvin county at the May, 1917, term on a charge of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for a term of ten years. Seeking a reversal of this judgment of conviction, he has brought an appeal to this court, and urges one error only in the brief. That is, that the testimony of the accomplice, George Rich, was not sufficiently corroborated, as provided by law, to warrant the verdict of the jury and support the judgment of the trial court.

The information upon which the plaintiff in error was tried charged him, jointly with Ruff Estes and George Rich, with shooting at J. R. Robertson, on the 11th day' of March, 1917,' in Garvin county. The record indicates that Joe and Ruff Estes were brothers; that George Rich was a neighbor living in the community; that Joe Estes was engaged in the illicit salé of intoxicating liquor and had been arrested by Robertson, who ,was a deputy sheriff, for violating the prohibitory liquor law; that Robertson also acted in conjunction with the United States officers in arresting Estes and bringing him to trial for violating the federal prohibitory law. The evidence on behalf of the state tended to show that on the night of the 11th of March, 1917, George Rich and Ruff Estes went to the home of J. R. Robertson, at the suggestion of Joe Estes, called Robertson out of his house, and shot at’him.

George Rich testified at the trial on behalf of the state and detailed fully the circumstances of the shooting and connection of the plaintiff in error, Joe Estes, therewith. It appears from this testimony: That he had no ill will or grudge against the injured party, Deputy Sheriff Robertson; that he was friendly with him; that he was also friendly to Joe and Ruff Estes. That on numerous occasions the Estes brothers had endeavored to induce him to kill Robertson. That on the day the offense was committed he met the Estes brothers and they induced him to drink with them; that he got very drunk. That after he had become intoxicated the Estes brothers began to insist that Robertson should be killed that night and asked him to get a shotgun and go with Ruff Estes to perpetrate the crime. He finally agreed to do so and secured a shotgun belonging to some relatives and started on the trip. He met Ruff Estes by appointment between 9 and 10 o’clock at the home of Joe Estes. When he announced his presence, Joe Estes came out of the house and brought a pistol which he gave to Ruff Estes and told them to hurry along and get through with their work. That after the shooting he returned to Joe Estes’ house and reported that he had killed Robertson. That Joe Estes gave him some money and told him he would hand him the other in a few days. He went on home and hid the shotgun in the barn. The next day he was arrested and placed in jail on this charge, and within a short time confessed his connection with the offense to the county, attorney and implicated the plaintiff in error, Joe Estes, and his brother Ruff.

A number of witnesses testified to facts supporting the statement of the accomplice Rich, in many of the minor details, to the effect that he was drinking with the Estes boys and became intoxicated during the afternoon and was seen with them riding a horse which he testified was ridden by him on the night the offense was perpetrated. Joe Estes testified in his own behalf and denied all the incriminating facts testified to by Rich. Buster Connor, 19 year old boy, living in the same neighborhood, testified that he was at the home of Joe Estes between 9 and 10 o’clock on the night the offense was committed, and that George Rich came to the house and called for Estes, and that Estes got up on being told that George Rich was at the gate and desired to see him, walked across the room and put two pistols in his pocket, and went out to where Rich was; that, when he returned, he brought one pistol and put it down on the table. Estes admitted taking two pistols and leaving the house, but he said he went out to meet a man to whom he had sold whisky a night or two before, and who had pledged him a pistol to secure payment; and that his purpose was to return the pistol to the owner and secure payment for the whisky sold. Lillie Robertson, a daughter of the injured party, testified that she recognized George Rich as one of the persons who was in their yard and made the attempt to take the life of her father on the night of the 11th of March.

Wash Graham testified that he was at the home of Joe Estes on the night the offense was committed; that he saw the Estes brothers drinking with George Rich; that he was present at night when Joe Estes left the room and returned. Much testimony was introduced on behalf of the state tending to show ill feeling on the part of the plaintiff in error against the injured party and his expressed desire to have him killed because he was a vigilant officer and interfering with his illicit whisky business. The fact that there is no question urged as ground for reversal in this judgment, except the failure of the state to sufficiently corroborate the testimony given by the ■ accomplice, has caused us to read and re-read this record carefully. The story told by the accomplice is straightforward and carries with it convincing elements of truth. We find it impossible to read the record without reaching the unbiased conclusion that the plaintiff in error is guilty, and it is our judgment that the testimony of the accomplice is sufficiently corroborated to comply with the statutes. His close association with the Estes brothers; the fact that he was drinking with them and drunk with them on the day of the homicide; that he borrowed the gun used, as testified to by him, and that it was found where he said he hid it; that he was at the home of Joe Estes immediately prior to the perpetration of this crime; that Estes without having first spoken to him, and upon, being told that he was at'the gate, got up, took the pistols, and went out and returned with only one of them; and many other incriminating facts and circumstances — are sufficient to connect this plaintiff in error with the conspiracy to murder Robertson, as charged.

The court fairly and impartially submitted the issue to the jury, and the jury was called upon to determine whether or not.the incriminating facts were sufficient to support the story of the accomplice and to warrant a conviction. If they had accepted the theory of the plaintiff in error that he was giving the revolver to some one and collecting money for the whisky sold, and had not bélieved the many incriminating facts testified by other witnesses, they should have acquitted the plaintiff in error; but the jury, who saw and heard all the witnesses testify upon the close points in this cause, determined the issues adversely to his contentions, and we are impelled to the conclusion that their verdict is well founded and that their judgment should stand because it is warranted by the evidence and complies with the law.

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

On Rehearing.

PER CURIAM.

On rehearing we are asked to modify the judgment and sentence by reducing the punishment to imprisonment for three years. It appears that this defendant, after he was convicted, was not able to' make an appeal bond, and was committed to the penitentiary pending the determination of his appeal; that he has now served about two years of his term; that his age is about 30 years, and he has a wife and one child that have always depended on him for support, and since his incarceration in the penitentiary they have depended upon the charity of his relatives for maintenance and support; that about seven years ago, as the result of an accident, the defendant’s right leg was amputated near the hip, which makes him practically unable to perform any manual labor, and that his health has been seriously impaired by imprisonment. It also appears that the punishment of the principal — that is, the man who fired the shot — -was only a term of two years.

In view of these facts we are inclined to think the punishment disproportionately severe, and that imprisonment in the penitentiary fob the term of five years will answer all the just purposes of punishment. For the reasons stated, the term of the sentence will be reduced from ten years to five years, and, as thus modified, the judgment is affirmed.