author: MATSON, J.

text:
    FRANK MAYFIELD et al. v. STATE.
    No. A-3379.
    Opinion Filed June 7, 1920.
    (190 Pac. 276.)
    (Syllabus.)
    1. APPEAL AND ERROR — Harmless Error — Opening Statements. It is not the rule in this state that error presumes injury, and a judgment of conviction will not be reversed because in the opening statement of the case to the jury the county attorney was permitted to state, over the objection of defendants’ counsel, that he expected to prove certain statements of a codefend-ant, not upon trial, made at the time of the arrest of such codefendant and not in the presence of the defendants on trial, unless after an examination of the entire record it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional ór statutory right.

      '¿. SAME. Where the trial court at the trial afterwards sustained an objection to the offer of the county attorney to prove such statements, and held the evidence inadmissible, and it is clear from the record that the statement of what the county attorney expected to prove was not maliciously made, but resulted from a misconception of the law as to the admissibility of such evidence, and the competent evidence adduced against the defendants reasonably supports the verdict, no apparent injury has resulted.
    3. • TRIAL — Instructions—Defining “Reasonable Doubt.” The practice of trial courts in attempting to define the term “reasonable doubt” is not approved. For an instruction defining “reasonable doubt” and held not to be .erroneous, see body of opinion.'

      4. LARCENY — Grand Larceny — Sufficiency of Evidence. Evidence examined, and held sufficient to support the conviction.

      Appeal from Distriot Court, Rogers County; W. J. Campbell, Judge.

    Frank Mayfield and Leonard Mayfield were convicted of the crime of grand larceny, and they appeal.
    Judgment as to each affirmed.
    Frank Mayfield and Leonard Mayfield were convicted in the district court of Rogers county, at the December 1917, term of that court, of the crime of grand larceny, for stealing 16% bushels of wheat from the granary of one B.' S. Clifton, a farmer living in the northwest part of said county. These defendants were jointly informed against with one Jess Kirk and one Ed Poison, and were granted at their request a separate trial, and upon a verdict of guilty the court sentenced each of these defendants to serve a term of one year and three months’ imprisonment in the state penitentiary.
    The evidence is substantially as follows:
    On the morning of the 3d day of August, 1917, between the hours of 2 and 3 o’clock, W. R. Mosby, a constable, and W. E. Heinzelman, a deputy sheriff, were patroling the public highways in the northwest part of Rogers county for the purpose of discovering persons hauling intoxicating liquors in automobiles; it was a moonlight night, and the said officers apprehended one Jess Kirk with an automobile loaded with wheat. Three other men were in the car with Kirk, but jumped out when these officers in a second car were about to overtake them. One of the officers testified that in his best judgment two of the men that jumped out of the car in which Kirk was riding were these defendants, the Mayfield boys, and that the third person was Ed Poison. Kirk was overtaken and arrested, and the finding of the wheat in Kirk’s car was reported to the prosecuting witness, B. S. Clifton, who up to that time did not know that any of his wheat had been stolen. After the report of the finding of the wheat and the arrest of Kirk, the officers, Mosby and Heinzelman, together with Mr. Clifton, went to the latter’s granary and discovered where some wheat had evidently been taken therefrom, and tracks of an automobile were also found in a public highway near the granary, and evidence of footprints back and forth from the granary to the place where the automobile had been standing, and also evidence of wheat scattered along from the granary to the place where the automobile had been standing.
    After the arrest of Kirk, and on the day following, other officers, went to the home of the Mayfields and arrested them on this charge, and the testimony is by such officers that the Mayfields asked if Kirk had turned them in, and these officers also swore that the Mayfields stated at the time of their arrest that they “jumped out of the car and liked to have got run over.” The defense interposed v/as an alibi; one of the defendants testifying that they stayed at home from 8 o’clock in the evening of August 2, 1917, until the next morning, and slept on a porch at their home all that night, and had nothing to do with stealing the wheat. However, the defendants admitted that they were in the city of Collinsville on the afternoon of August 2, 1917, and were in company with Jess Kirk in an automobile, and stopped at the residence of a witness by the name of Hagerty, who lived between Collinsville and the home of the Mayfields, north of that city, and the evidence is that one of the Mayfield boys tried to borrow some money from Hagerty on that occasion.

      Fred Ellis, a brother-in-law of these defendants, testified that he was living at the Mayfield home at that time and that these defendants, together with Jess Kirk, came to that place about 7 or 8 o’clock in the evening of August 2, 1917, in an automobile, and that Jess Kirk was driving the car; that Jess Kirk stayed there about 30 minutes and then left, and that the defendants were at the Mayfield home when the witness Ellis went to bed on the porch and were there sleeping on the porch when the witness got up about 9 o’clock the next day.
    F. M. Mayfield, the father of these defendants, was introduced as a witness in their behalf, and testified that he was at home on the night of the 2d of August, 1917, and heard them come home some time in the fore part of the night, and also knew that they were there the next morning, but that he slept in a different room and did not pay any particular attention to the boys that night. The witness Frank Mayfield also denied making the statement to the arresting officers about asking if Jess Kirk had told on them, or about jumping from the car. The defendant Leonard Mayfield did not take the witness stand.

      Goldesberry & Boone, for plaintiffs in error.

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

(after stating the facts as above). The first assignment of error relates to the action of the trial court in permitting the county attorney, in his opening statement of the case to the jury, to state that the evidence would show that one Jess Kirk told the officers, at the time he (Kirk) was arrested, that the wheat in the automobile belonged to Mr. Clifton, and that the parties who jumped from the car were Frank Mayfield and Leonard Mayfield. The record relative to this assignment is as follows:

“That they arrested Mr. Kirk, who, I believe the evidence will develop, was the driver of the car, and they found this car contained about 16% bushels of wheat; that Mr. Kirk told the officers who made the arrest that the wheat belonged to Mr. Clifton and that it was taken that night, and as a part of the statement he voluntarily made the statement that the parties who left the car was Frank Mayfield, Leonard Mayfield — (interrupted by counsel for the defendants).
“By Counsel for Defendants: Wait a minute — we object to that statement because if the evidence is offered it will be incompetent, irrelevant, and immaterial and cannot be used against these defendants.
“By the Court: Overruled.
“By Counsel for Defendants: Exception.
“By Counsel for the State (continuing) : That they took this party in charge and I think the evidence will show that they took the wheat to Vera and unloaded it, and immediately went to Mr. Clifton’s residence and thereupon told him of the incident and he went down, and discovered that the wheat was missing.”

It will be noted that, while objection was made to the statement of the county attorney relative to what Kirk had said to the arresting officers concerning the Mayfield boys having jumped from the automobile, there was no request made to the trial judge to withdraw said remarks from the consideration of the jury. While it is apparent that the court erred in not sustaining the objection of defendants’ counsel to this statement of the county attorney, in view of the fact that it was not made to appear that either of the Mayfield boys was within hearing distance at the time Kirk is alleged to have made this remark , it is also clear from the entire record in this case that the statement was not made by the county attorney maliciously and purposely with the intent to prejudice these defendants, but was made by him under a misconception of the admissibility of this evidence. Later, in the progress of the trial, the county attorney offered to prove by these officers that Kirk had made the statements attributed to him in the opening statement, and the trial court at that time very promptly and correctly sustained the objection of defendants’ counsel to0the admission of this evidence, because the testimony of the officers then developed that the defendants Mayfield were not within the hearing of Kirk at the time the remark was made. After the trial court had ruled upon the admissibility of this evidence, no further attempt was made by the county attorney to draw from any witness any statement of Kirk’s relative to the Mayfield boys.

While this court is of the opinion that the trial court erred in not .sustaining the objection of defendants’ counsel to the statement of the county attorney, we do not think the error complained of sufficiently prejudicial to authorize a reversal of this judgment undér the circumstances of this case. It is not the rule that error presumes injury, and the foregoing assignment of error rests upon the same basis as would the improper admission of evidence. An application must be made in this instance of the provisions of section 6005, Revised Laws 1910, which prohibits this court from reversing any judgment of conviction in such an instance, “unless * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

The trial court also, over objection and exception by defendants’ counsel, gave an instruction defining the term! “reasonable doubt.” This court has repeatedly urged trial' courts not to attempt to define the term “reasonable doubt,” as an instruction that it is incumbent upon the prosecution, to prove the guilt of the defendant beyond a reasonably doubt is held to be sufficient without further explanation.. Ofttimes an attempt to define such term results in confusion which tends to create doubts instead of removing them. Hence the admonition against giving such instruction. Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157; Nelson v. State, 5 Okla. Cr. 369, 114 Pac. 1124.

The instruction given in this case was as follows:

• “You are instructed that, by the term ‘reasonable doubt’ is meant a real, substantial doubt of the guilt of the defendant, existing or arising in your minds after a fair consideration of all the evidence in the case. It is more than a mere surmise, conjecture, or fanciful doubt. It is such a doubt as would cause a reasonably prudent man to pause or hestitate before acting on matters of grave importance to himself. If, after considering all the evidence in the case, your judgment and understanding are convinced and satisfied of the guilt of the defendants, or either of them, and you have a fixed abiding conviction, amounting to a moral certainty, that the defendants, or either of them, are guilty, then you have no reasonable doubt, and must convict such defendant; otherwise, if your minds and understandings are not .so convinced and satisfied, then it will be your duty to acquit the defendants.”

It is to be noted that the trial court, in the foregoing instruction, told the members of the jury that their judgment and understanding must be convinced and satisfied from a consideration of all the evidence of the guilt of the defendants, or either of them, to the extent that they have a fixed abiding conviction, amounting to a moral certainty, before they would be justified in convicting either of the defendants.

In the case of Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708, the Supreme Court of the United States approved an instruction defining reasonable doubt somewhat similar to the one given in this case. In the Hopt Case, Mr. Justice Field, speaking for the court, said:

“The word ‘abiding’ here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence. It is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action-in the more weighty and important matters relating to his own affairs. Out of the domain of the exact sciences and actual observation there is no absolute certainty. The guilt of the accused, in the majority of criminal cases, must necessarily be deduced from a variety of circumstances leading to proof of the fact.”

In the case of Thompson v. State, 16 Okla. Cr. 716, 184 Pac. 467, this court held an instruction defining “reasonable doubt” in terms almost identical with that given in this case not to be reversible error.

The practice of trial courts in attempting to define “reasonable doubt” is not approved, and the foregoing instruction is not incorporated in this opinion for the purpose of giving the same the unqualified approval of this court. On the other hand, the court is satisfied from an examination of the record that this alleged error did not affect the substantial rights of the defendants in this case, and is not such as should result in a reversal of this judgment.

It is also contended that the evidence in the case is not sufficient to support the conviction. The court is not impressed with the cogency of the argument advanced in support of this assignment. It is sufficient to .say that there is ample competent evidence in the record which would authorize the jury to conclude that the crime was committed as charged in the information, and that the defendants were participants therein.

For the reasons stated, the judgment of conviction as to each defendant is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    WALTER YOUNG v. STATE.
    No. A-3431.
    Opinion Filed June 8, 1920.
    (190 Pac. 270.)
    (Syllabus.)
    LARCENY — Grand Larceny — Sufficiency of Evidence. In a prosecution for grand larceny, evidence examined and held sufficient ro sustain the conviction.

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

    Walter Young was convicted of grand larceny, and he appeals.
    Affirmed.

      Swan C. Burnette, for plaintiff in error.
    The Attorney General and W. C. Wall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Wasliita county rendered upon a verdict finding plaintiff in error, Walter Young, guilty of grand .larceny as charged in the information and fixing his punishment at confinement in the state reformatory at Granite for a period of 18 months. The petition in error with case-made was filed in this court on August 12, 1918, and no brief has been filed and no appearance made on behalf of plaintiff in error in this court. The cause was submitted on the record.

The errors assigned question the sufficiency of the evidence to support the verdict. The information charges the larceny of about- 600 pounds of cotton of the value of $50, the personal property of J M. Hardesty. After a careful examination of the record and the evidence we reach the conclusion that the evidence is amply sufficient to sustain the conviction, and that no such error was committed, if any at all, as would justify a reversal of the conviction.

The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    JESS MITCHELL v. STATE.
    No. A-3433.
    Opinion Filed June 14, 1920.
    (190 Pac. 268.)
    (Syllabus.)
    APPEAL AND ERROR — Record—Omission of Judgment — Dismissal. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

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

    Jesse Mitchell was convicted of assault with a dangerous weapon, and he appeals.
    Appeal dismissed, and cause remanded.

      Champion & George, for plaintiff in error.

      S. P. Freeling, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Jesse Mitchell, was convicted in the district court of Carter county upon an information charging that in said county, on or about the I2th day of January, 1918, he did then and there willfully, unlawfully, and feloniously make an assault by shooting at and against the body of one Manuel Williams, with a pistol with the unlawful and felonious intent to do great bodily harm, and his punishment was fixed at confinement in the county jail for a period of six months. To reverse the conviction a petition in error with case-made was filed in this court on August 15, 1918.

The Attorney General has filed a motion to dismiss because there is no judgment or copy of judgment in the record.

The case-made contains a copy of the verdict, the motion for a new trial, and the order of the court overruling the same. Then appears the following recital:

“And thereupon the defendant, in open court, gav<* notice of appeal, and thereupon the judgment and sentence of the court was pronounced against said defendant in conformity with the verdict of the jury rendered in said cause.”

This is the only reference in the record which shows the rendition of any judgment of conviction, and in itself is a mere recital of the fact that a judgment had been rendered. The case-made does not contain a journal entry of judgment or a copy thereof. By numerous decisions of this court it is held that when an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, -and the appeal will be dismissed for want of jurisdiction. McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876; Loyd v. State, 12 Okla. Cr. 82, 151 Pac. 1190; Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659.

Inasmuch as the case-made does not contain a copy of the judgment appealed from, we are of the opinion that this court is without jurisdiction to consider the' appeal. The motion to dismiss the appeal is therefore .sustained, and the attempted appeal herein is dismissed, and the cause remanded to the lower court.

ARMSTRONG and MATSON, JJ., concur.


text:
    MAT CRABTREE v. STATE.
    No. A-3514.
    Opinion Filed June 14, 1920.
    (190 Pac. 271.)
    (Syllatnis.)
    HOMICIDE — Assault With Intent to Kill — Conviction—Affirmance. In a prosecution for assault with intent to hill by shooting with a pistol, the record reviewed, and held, that plaintiff in error had a fair trial and was. properly convicted.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Mat Crabtree was convicted of assault with intent to kill, and he appeals.
    Affirmed.

      Bruce L. Keenan and W. J. Crump, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Mat Crabtree, was tried on an information charging that in Cherokee county, on or about the 25th day of June, 1918, he did shoot and wound with intent to kill one J. R. Cannon. The jury found him guilty of assault with intent to kill as charged in the information and fixed the term of his imprisonment in the penitentiary at one year. He has appealed from the judgment rendered on the verdict, but there has been no appearance in his behalf on his appeal, and the ::ause was submitted on the record.

The first assignment of error is that the court erred in admitting over the objection of the defendant incompetent, irrelevant, and immaterial testimony. It appears that, some exceptions were taken during the course of the trial to the.admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken.

Error is assigned in the giving and refusing of instructions. We have examined the instructions given and those refused, and discover no error.

The remaining assignment of error is that—

“The court erred in overruling a motion for a new trial because the county attorney offered to confess the motion ; that, while the record is silent upon the official offer on the part of. the county attorney, plaintiff in error is authorized to say that the county attorney made .such offer in open court, for the reason that the prosecuting witness was shot through the body several times, and his intestines punctured in several places, and the verdict and sentence is not commensurate with the punishment that ought to be inflicted.”

We have examined the record carefully and our conclusion is that there is no error in this case, unless it is the error of the jury in fixing the punishment. ’ It is apparent that the jury were exceedingly merciful in the discharge of their duty. However, the plaintiff in error will not be permitted to complain that the jury were too lenient with him.

The judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    BARNEY WHITMORE v. STATE.
    No. A-3504.
    Opinion Filed June 17, 1920.
    (190 Pac. 278.)
    (Syllabus.)
    HOMICEME — Murder—Sufficiency of Evidence. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction with imprisonment for life as the punishment, and that no material error was committed upon the trial.

      A-ppeal from District Court, Jefferson County; Cham Jones, Judge.

    Barney Whitmore was convicted of murder, and he appeals.
    Affirmed.

      P. T. Hamilton, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Barney Whitmore, herein referred to as the defendant, was convicted of murder, and in accordance with the verdict of the jury was sentenced to imprisonment for life at hard labor. He has appealed from the judgment of conviction to this court, but there has been no appearance in his behalf on his appeal. The information, in substance, charges that in Jefferson county on or about the 24th day of January, 1918, the said Barney Whitmore did kill and murder one John Goldsmith, by striking and crushing his head with a blunt, dangerous and deadly weapon.

The record discloses, in substance, these facts:

The deceased, a man about 45 years of age, with his wife, and child lived at Healdton, and was engaged in hauling junk; the defendant, a man about 24 years of age; had lived in that neighborhood for about 10 years. About a week before his death deceased hired the defendant to work for him. On the date alleged they left the place in a two-horse farm wagon with sheet and bows, and in it was a mattress and quilts. The next morning, the defendant was back at the place and told Mrs. Goldsmith her husband had gone to Ft. Worth; that on their way to Waurika they met a man driving a Ford car just west of Cornish. The man said “Hello, John,” and deceased stopped, left the wagon, and they talked a few minutes. Deceased called the man “Loney,” and came back to the wagon and told the defendant to take the wagon and team back home and go on with the work, and to tell his wife that he was going to Ft Worth and would be back in a week or two. A day or two later the defendant moved his wife and two children to deceased’s place and continued to work there for about three weeks. About a month later the body of deceased was found in an old well in Talley Wilson’s pasture, four miles southwest of the old town of Cornish and about two miles south of Miller’s store on Mud Creek. The well was between 20 and 30 feet deep, the body was covered with rubbish and a large rock, a binder wheel, and some pieces of boards and of old stove pipe: It apparently had been pitched in head foremost and the feet remained uncovered. When taken out it had only an undershirt, drawers, and socks. Later a sack containing a part of the clothes worn by deceased and his overcoat was found in a concrete culvert on the road about two miles from Ringling. The medical witnesses who made the post mortem examination testified that the forehead had been crushed in with a blunt instrument, and the skull back of the left ear was crushed in, and also the jawbone had been broken in two or three places.

The evidence shows that defendant and deceased stopped at a wagon yard in Ringling that day and bought some feed for the team; that they left the wagon yard together about 4 o’clock and that night stopped at Miller’s store on Mud Creek and ate supper, fed the team and remained there about an hour, leaving there between 8 and 9 o’clock. Several witnesses testified that deceased was very drunk while at Miller’s store. A witnfess testified that deceased paid for the dinners in Ringling that day with a $5 bill, and that he had a roll of greenbacks that looked like $50 or more in his hand at the time.

When arrested the defendant stated to the sheriff, in the presence of several persons, that the last time he saw Goldsmith he got out of his wagon and got into a car and went off with somebody; that he went to Ringling that day with Goldsmith and they were going to Waurika to buy a bunch of mules and got as far as Mud Creek, near Cornish, and there met a Ford car, and Goldsmith got out of the wagon and went to the car and talked a little bit and came back to the wagon and told him to go ahead with the work; that he was going to Ft. Worth; that Goldsmith called the man “Loney,” or some such name as that. A witness testified that in Ringling that day the defendant told him there was a man in the wagon yard by the name of Goldsmith, who had just got out of the penitentiary, and they had been stealing chickens together and they intended to get some hogs over on Mud Creek; that the defendant said Goldsmith had some money, a good team and harness, and a good wagon, and he had an axe and hammer and was going to kill Goldsmith and throw him- in the creek; that he was going to kill him if he had to take him to Red River and tie a rock around his neck.

There was testimony tending to .show that the defendant had in his possession the coat and pants which were worn by the deceased on the day he left home. The only testimony offered on the part of the defendant explaining or denying the inculpating circumstances was to show that the coat and pants in question belonged to the defendant, and evidence tending to impeach the witness who testified that the defendant told him that he was going to kill Goldsmith. The defendant did not testify.

The errors assigned are that the verdict is not sustained by sufficient evidence; that the court erred in admitting irrelevant, incompetent, and immaterial testimony and in refusing to admit competent and material testimony offered by the defendant. We have carefully examined the record independent of the errors assigned, and have given the case that careful consideration which its importance demands, and we have been unable to find a single ruling of the court on the admission or in the rejection of evidence upon which error could be predicated, and our conclusion is that the undisputed facts and circumstances justified the verdict of the jury. A more cold-blooded, brutal, and inhuman murder could hardly be imagined; it was heartless in conception and cruel in execution.

There is no error presented in the record; accordingly the judgment is affirmed.

ARMSTRONG and MATSON, JJ. concur.


text:
    BUSH WOOD v. STATE.
    No. A-3509.
    Opinion Filed June 19, 1920.
    (190 Pac. 280.)
    (Syllabus.)
    INTOXICATING LIQUORS — Unlawful Transportation — Sufficiency of Evidence. In a prosecution for unlawfully transporting intoxicating liquor, evidence examined, and held sufficient to sustain the conviction, and that no reversible error was committed on • the trial.

      Appeal from County Court, Cherokee County; J. D. Cox, Judge.

    Bush Wood was convicted of unlawfully transporting intoxicating liquor and appeals.
    Affirmed.

      George N. Hughes, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error Bush Wood and one Lon Johnson were jointly charged with transporting 12 half pints of whisky from a place unknown to a point in front of Sansing’s store in the town of Park Hill, in Cherokee county. Upon his separate trial plaintiff in error Wood was convicted and his punishment fixed at a fine of $500 and six months in jail. From the judgment rendered on the verdict, he appeals.

The principal contention on the part of the plaintiff in error is that the evidence is insufficient to .sustain the verdict, in that it does not meet the requirement of the .statute which declares the testimony of an accomplice insufficient to convict unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense.

The evidence on the part of the state was substantially as follows:

“I am the wife of Price Mathews, a merchant in Park Hill. His place of business is across the street from the Sansing store. I have known Bush Wood for seven or eight years. I saw him probably 10 minutes before'the 3:10 p.m. train arrived, driving a car, and he stopped across the street. Lon Johnson was with hm. Bust Wood came into our store and warmed, and just after the train passed a man took some whisky out of the car.”

Sam Agee testified:

“I am a blacksmith at Park Hill, I saw Bush Wood and Lon Johnson pass in a car. It was something near 3 o’clock.”

Lon Johnson testified:

“At that time I lived two miles southwest of Park Hill. I went to Tahlequah on the train and met Bush Wood there about 11 o’clock. I asked him if he could get me some whisky.. He said he could; that he was going out to Park Hill, and I could go back with him. I got eight half pints of Old Taylor whisky from him out by Cale Starr’s place, and paid him for it at Park Hill. I served a term in the penitentiary for assault with intent to kill. I was convicted before statehood for disposing of whisky. I was convicted yesterday of transporting whisky under a separate charge.”

This witness entered a plea of guilty in this case at the February, 1920, term of the district court of Cherokee county, was convicted of the murder of Rex Sansing, and is now serving a life sentence in the penitentiary.

E. A. Maloney testified:

“I was deputy United States marshal stationed at Tahlequah. On the day alleged, I went from there to Park Hill on the train. Arrived there about 3:30 p. m. I .saw Bush Wood driving west just before the train stopped. I recognized the car as Bush Wood’s car. There was a Winchester in the car. I picked it up and unloaded it. I got a piece of iron and broke into the back part of the car, which was locked, and found 12 pints of Old Taylor whisky in there. I later arrested Lon Johnson and he had 6 half pints of Old Taylor whisky.”

Ned Gritts testified:

“I am chief of police of the city of Tahlequah. On the date alleged I saw Bush Wood driving his car down Main street, and Lon Johnson was with him.” ,

There was no testimony offered by the plaintiff in error.

These are the undisputed facts, and in our opinion, excluding the accomplice testimony, the evidence was amply sufficient to show that plaintiff in error transported the whisky as charged. It is only when there is a total failure of substantial evidence of the elements, or some one element, of an offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to .sustain > it. The case was submitted to the jury on correct instructions. The trial was in all respects fair, and we are unable, after a careful examination, to find anything in the record sufficient to create a doubt as to the correctness of the result, or to warrant us in interfering with the verdict.

The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    EARL EVERIDGE v. STATE.
    No. A-2981.
    Opinion Filed June 24, 1920.
    (190 Pac. 701.)
    (.Syllabus,)
    1. APPEAL AND ERROR — Harmless Error — Admission of Evidence. In a prosecution for murder committed for the purpose of robbery, held, the error, if any, in admitting evidence of statements made by a c.oconsnirator and codefendant the night after the robbery, the defendant not. being present at the time, was harmless, where the other evidence in the case showed beyond doubt that defendant participated in perpetrating the robbery and in committing the murder.

      Z. HOMICIDE — Murder—Sufficiency of Evidence. In a prosecution for murder, defendant having been convicted with imprisonment for life as the punishment, the evidence reviewed and defendant held justly convicted.

      Appeal from District Court, Choetaw County; C. E„ Dudley, Judge.

    Earl Everidge was convicted of murder, and he. appeals.
    Affirmed.
    Plaintiff in error, Earl Everidge, and Edward Hembree and Floyd Aikens were charged jointly with the murder of P. H. Hearn, alleged to have been committed in Push-mataha county on the 16th day; of September, 1915. A severance was granted; then upon the application of plaintiff in error, hereinafter referred to as the defendant, change of venue was granted and the case transferred to Choctaw county, where upon his trial the defendant was* found guilty of murder and his punishment fixed at imprisonment for life. From the judgment rendered on the verdict he prosecutes this appeal.

      The evidence shows that P. H. Hearn, the deceased, was an operator at the depot of the Frisco Railroad at Antlers, and on the morning of September 16, 1915, shortly after 3 o’clock he was found by the conductor of an arriving train lying on a baggage truck at the station “bloody all over, his hair all matted, and his face battered up.” He was unconscious and remained unconscious until he died on the 23d day of September, 1915.
    Dr. W. W. Christian testified that he had practiced his profession 20 years, and was connected with the Paris, Texas, sanitarium, and went to Antlers after the deceased was injured to see him; that upon examination it was determined to remove him, and he was removed on the day he was injured, to said sanitarium, where, on the 23d day of September, 1915, at 2:30 he died; and that his death was caused by blows from a blunt instrument, which fractured his skull.
    L. L. Ray testified that he was station agent of the Frisco Railroad at Antlers when the deceased was killed; that at about 3:20 a. m. of the morning of said killing he was called by phone and went immediately to said depot and there saw Mr. Hearn lying on a table in the office in an unconscious condition; that he examined the cash drawer and found therein only 21 pennies; and that on the night of the homicide Mr. Brewner, another operator, was relieved by Mr. Hearn, to whom, as shown by the record in the handwriting of Mr. Brewner, which handwriting he identified, Brewner turned over $18.36, which was in silver dollars, half dollars, quarters, dimes, and pennies.
    Jeff Sharp testified that he was phoned to come to the depot and upon his arrival called the sheriff, who came, and he and the sheriff made an investigation and did not find anything; that at about daylight he returned to the depot and made an examination, and found about 95 yards from the depot a hat and a piece of a gun; that the hat and piece of gun now exhibited to him was the. hat and piece of gun he found; that he also found in a little grove near where the hat and piece of gun were found where two horses and a mule had been hitched, and that he tracked them out to the main street and then back to where they went and came.
    ■George Alexander testified that he knew the defendant and remembered the robbery of the depot at Antlers and the killing of the deceased in September, 1915; that on the night preceding the killing he saw the defendant a little after dark at Mrs. Piercy’s, in Farris, from whom he borrowed a pistol, and that at the time he noticed the hat that the defendant had on, a brown hat; that the next day be saw the defendant again at Mrs. Piercy’s, the morning after the homicide, when he returned the pistol which he had borrowed and asked for .some coffee, and at the time he looked like a man who had 'been on a big drunk, appeared to be nervous and looked like a man that had lost sleep; that he was acquainted with Edward Hembree, commonly called “Chock” Hembree, and with Floyd Aikens; that the night after the killing of the1 deceased he saw Floyd Aikens.
    The witness was then asked if at the time he had any conversation with Floyd Aikens, to which question the defendant objected, the court overruled the objection, and the defendant excepted. The witness answered: That at the time named Floyd Aikens told witness that he (Aikens) and the defendant “done the robbing and killing there at Antlers; that he and defendant rode their respective horses and that Hembree rode old man Piercy’s damned old mule; that he had that damned old pistol of Chock Hembree, the defendant had old lady Piercy’s pistol, and Chock had Jim Jones’ shotgun, which did the work; that they went down there and hitched their horses in the little grove and waited until the train ran, and then went in and done the work; that the damned old man knew Earl and he stayed where he could not be seen, and he (Aikens) and Chock went in and put their guns on this fellow through the window and told him to hold his hands up”; that Earl came in and got the money, and that he had not seen him since and did not know how much he got; that the defendant told them to kill the deceased, and they took him off to ,the south end of the depot and across the railroad; that he did not know that Chock was going to hit the deceased, and that when Chock hit him the first lick deceased fell on his knees and Chock hit him again; that he (Aikens) told Chock not to hit him again, that he had already killed him, and that they got on their ■ horses and rode out of town and overtook the defendant, who rode off and left them; “that Earl got every damned bit of the money, and if the son of a bitch didn’t divvy up they were going to kill him;” that he did not see the defendant either at or about Farris in his usual haunts, Thursday, Friday, or Saturday after the robbery of the depot, that he had any recollection of.
    “Thereupon the defendant asked the court ‘to instruct the jury to wholly disregard that portion of the testimony of the witness George Alexander wherein he relates the conversation between himself and Floyd Aikens, wherein Floyd Aikens makes the statement to him as to the robbery and as to his participation in the robbery, for the reason that said statement was made in the absence of the defendant, Earl Everidge, is wholly hearsay, and for that reason is incompetent, irrelevant, and immaterial.’”

      The court overruled the motion to strike, and the defendant excepted.
    ■ Jim Jones testified that in September, 1915, he lived at Farris, Okla.; that he was acquainted with Edward Hem-bree, commonly known as “Chock” Hembree; that he heard about the killing of Mr. Hearn; that the night before the homicide he loaned his single 12-gauge shotgun to Hembree for the purpose, as stated at the time by Hembree, for Earl Everidge to kill a dog with; that the next time he saw Hembree was the Saturday after the said homicide, when he asked him where his gun was, and Hembree replied at Earl Everidge’s, and that he went up there to see about it, to get it, but did not succeed; that the gun now exhibited to him was the gun he loaned Hembree, but it was in a different condition when so loaned; that at that time the stock was not “busted.” The defendant asked the court to instruct the jury not to consider the evidence of Jones in regard to the loan of the gun, which the court refused to do, and the defendant excepted.
    Joe Whiteside testified that in September, 1915, he was living at Farris;. that he was acquainted with the defendant ; that he remembered hearing about the robbery of the Frisco depot and the killing of Mr. Hearn on the morning of September 16, 1915; that he saw the defendant that morning; that he came to witness’ home on' horseback; that he was bareheaded, and he thought had his hat tied on his saddle; that the defendant came for the purpose of seeing if witness was going to Atoka; that defendant returned to his home, to which witness afterwards went, and when he got there defendant was changing his clothes, and witness saw on defendant’s dresser some silver dollars, quarters, nickels, and dimes, and some pennies; that witness and defendant went to Atoka together, and on the way the defendant said he had about $18; that the defendant did not say anything to witness about where he and his horse had been the night before; that from Atoka witness went to West Le-high, and defendant said he was going to McAlester to see a girl; that the witness had been around with the defendant and that he did not know that he had ever seen him broke; that he had seen him with money lots of times; that it was not unusual for the defendant to ride around with his hat or cap tied to his saddle.
    Joe Whiteside, recalled, testified that he \vas at Mrs. Knox’s on the night of the 15th with the defendant and members of the Knox family; that the defendant .stayed about an hour; that some one rode up to the gate and hollered, “Is Earl in there?” and defendant went out and returned, and went out again and did not return; that when going to Atoka he asked the defendant who it was that called him out and he said it was Chock or Aikens, one; that it was about 8 o’clock when some one came to the gate and asked for Earl, and that it was 15 or 17 miles from Farris to Antlers.
    Mrs. Velva Smith testified that she was married, but that she was not married in .September, 1915; that .she lived in McAlester and was acquainted with the defendant, who paid attention to her, and that on a Friday in September, 1915, she saw him at the home of her aunt in McAlester; that in their conversation he said that a few nights before he was in Antlers on Tuesday and on Wednesday night, and that he saw a man killed, whose name she understood to be “Herring,” and that he was standing within ten feet of the man when he was killed. This witness further testified that at the time of his visit he looked like, and said, he had lost a great deal of sleep; that a little fair was going on at the time and the defendant had a little change in his hand and said he had enough to go to the fair on; that before said visit she had been often with the defendant, but had not then seen him for several weeks. Hereupon the. witness admitted that at the dictation of her husbancl she had written Defendant’s Exhibit E, which was admitted in evidence and is as follows:
    “Wichita Falls, Texas, July 12, 1916.
    “Moman Pruiett, Atty., Oklahoma City, Okl.- — -Dear Sir: My wife, Mrs. Velva Smith, formerly Miss Velvet Torbett, is under bond to appear before the district court at Hugo, on October 2, as a witness in the Earl Everidge murder case, and will appear there unless terms can be made satisfactory between you and I so it will pay me to do otherwise. I would like your advice on this matter either through the mail or by a private talk as soon as possible, that we can make our plans accordingly. Hoping that yow will give this matter immediate attention, I remain,
    “Yours truly, N. H. Smith.
    “Address: N. H. Smith, 305 Lee Street, Wichita Falls.”
    Mrs. Mary A. Piercy testified that in September, 1915, she lived in Farris; that she was acquainted with the defendant, and saw him on the night of September 15, 1915, at which time she loaned him her six-shooter for the purpose, as .stated by him at the time, to protect his mother’s smokehouse; that the next time she saw him was at her home in Farris the next morning, when he returned her pistol and wanted a cup of coffee, which she gave him; that at the'time he looked like some one who had been staying.up all night; that she heard of the killing of deceased the day after it occurred, which was the same day that the defendant returned her pistol; that old man Piercy had a mule which she kept right there all the time; that she had loaned the gun to the defendant at different times.
    Rufus O’Quinn testified that in 1915 he lived in Farris, Okla.; that he now resided in Tennessee, having left Farris in December of last year; that he knows and has known the defendant four or five years; that he knows Edward Hem-bree and Floyd Aikens; that he had known Hembree about five, and Aikens about three, years; that last year he was engaged in farming and working in the telephone office in Farris; that on a Tuesday night preceding the killing of the deceased he went out with Floyd Aikens, Chock Hem-bree, and the defendant, on horseback, he riding Piercy’s mule and the others riding horses; that they road to Darwin Church, which is six miles out of Farris and 11 miles west of Antlers, arriving there about 9:30 or 10 o’clock, and found the church not lighted, and they went on down the road in the direction of Antlers and stopped at a cane mill about a mile from Darwin and about one-half of a mile off the road to Antlers, drank some cane juice, remained about 15 or 20 minutes, and left, going on about 2 miles and stopped, talked, and smoked and then went on in the direction of Antlers, and stopped at Uncle Dick Lock’s fence, about three-quarters of a mile from Antlers, talked and smoked; it was suggested that they go into Antlers to get some tobacco, and the defendant, Aikens, and witness went to Antlers, to the street crossing, and then to the depot; that at the depot they saw the depot agent in his office and the other fellow was on the platform; they stopped about 10 feet from the depot, and Floyd Aikens and the defendant said they had come to rob the depot, and witness said he was not going to have anything to do with it, and advised them to put it off because they did not have sufficient arms, and they said they would study about it, and finally agreed to put it off; that while they were in Antlers and about 3 o’clock a. m. a train passed, and they remained there about 15 minutes ; that the defendant then said he would “put it off if we would agree to come back the next night,” to which Aikens agreed, and witness told them he would not have anything to do with it, and they said he (witness) was a “feather leg if I would not come back”; that they would come back any way; that they then returned to the horses and Chock Hem-bree, and the defendant remarked, “We got what we went for,” and Aikens said, “No; we were just lying;” and they got on their horses and rode in the direction of Farris; that the next time he saw the defendant was at the phone office in Farris on the 15th of September, 1915; that Hembree and Aikens were present and asked witness if he was going back with them that night, to which he answered No, and they remarked they would go back and did not need, him (the defendant objected to this evidence and moved to exclude the same, the court refused to exclude said evidence, and the defendant excepted) ; that the morning after the night of the homicide he saw Chock Hembree at the phone office in Farris, and he (Hembree) told him that they had robbed the depot and killed the agent; that they had hit him three times with a shotgun and punched him once (the defendant objected to the introduction of said evidence, the court overruled the objection, and the defendant excepted).
    O’Quinn further testified that Hembree said that the defendant had the money and had run off with it; that about one hour after said conversation he had a second conversation with Chock Hembree in which Chock asked him “if he suspected anything by the mule being out,” to which witness replied Yes, and Chock then -said that he rode the mule to town, and when he brought him back that he just turned him out and did not feed him; that the said mule was the same mule that witness had ridden the night before in company with the defendant at Antlers; that the same evening he had a conversation with Aikens, who told him to watch the mailman, to see what he had to say about it; that he had seen the gun which was in evidence; that he had hunted with it, and knew it and that it belonged to Jim Jones; that afterwards Chock asked him if he did not want to see the gun, and witness replied Yes, and Chock, at Bill Hembree’s place, about one-half of a mile from Farris, showed him the gun and “the stock was busted, the breach off, and the barrel bent’’; that, being shown the gun, Chock unbreached it and threw the parts about ten feet apart, .and they returned, to Farris; that he did not have any conversation with the defendant after the crime was committed in regard to it, and that at the time he had the conversations with Chock Hembree and Floyd Aikens in regard to said, homicide the defendant was not present. The defendant objected to the introduction of said .statements made to O’Quinn in the absence of the defendant, and also requested the court to withdraw said testimony from the jury. The court overruled said objection, and refused to withdraw said evidence from the jury, and the defendant excepted.
    Wiley Smith testified that he heard of the robbery of the depot and the killing of Mr. Hearn the day after the tragedy; that on the Wednesday before the tragedy he met Chock Hembree, Floyd Aikens, and Ruff O’Quinn in the early morning, going in the direction of Farris, antd the defendant about three miles from where he met the others, who was on horseback going in the direction of Farris.

      Dell Wilson testified that he was .sheriff of Pushma-taha county; that he knew and had known the defendant six or seven years and that he had known the deceased about two years; that when he first heard of Mr. Hearn’s death in Antlers he' went to the depot and found the deceased lying on the table in the Frisco office unconscious, with several wounds around his head; that he made an examination and found, something like sunup, and about four telegraph poles from the depot, some blood, a piece of a gun, and some tracks where some horses had been hitched off the right of way about 30 or 40 yards from where he found the piece of the gun, which was the same piece as now exhibited to him; that he found the tracks of two horses and a mule,one of which was bare-footed, the other had three shoes, and the mule was shod in front; that he followed the tracks from Antlers toward Farris as far as he could; that one of the horses went direct west and the other horse went 'north — went a mile west and turned north; that the defendant’s home was on the road from Joe Whiteside’s to Farris, and the direction the lone horse was traveling he would pass Joe Whiteside’s in going down to Farris; that the first time after the said homicide that he saw Hembree and Aikens was about September 20; that he received a few days after the arrest of said defendants, at Amos Hembree’s, an uncle of Chock, in the Farris neighborhood, a part of a gun, and identified the part of said gun now exhibited to him as the same that had been delivered to him; that after he arrested the defendant, he had a conversation with him as to his whereabouts on Tuesday night preceding the killing on Wednesday night. The defendant objected to the introduction of such conversation in evidence, the court overruled said objection, and the defendant excepted. The defendant, in reply to said question by the sheriff, said that on Tuesday night he came out to the sorghum mill, out east .of' Darwin a mile or so, with Rufus O’Quinn, Floyd Aikens, and 'Chock Hembree, and drank some sorghum juice, and his horse got loose and he did not get home until up in the day Wednesday; that he asked him where he was Wednesday night, and he said in Farris at Mr. Knox’s and that he went home about 11:30, and that he borrowed a pistol from Mrs. Piercy because some one had been breaking into his smokehouse and he thought he would get him, and that he (defendant) went to bed Wednesday night about 11:30, got up next morning real early, and went to old lady Piercy’s and got his breakfast,, and the next morning he went to Atoka with Joe White-side, and from there to McAlester and from McAlester back to Atoka.
    This witness further testified that the horse which he tracked on the north road was shod with two shoes on the front and one on the hind feet, and that the shoes on said horse were pretty near as wide across one way as another, and that you hardly ever see a horse’s feet shaped that way, and would make a track you could tell from any other horse track; that a few days after the arrest of the defendant he (witness) noticed that the feet of the defendant’s horse corresponded to the track that he had tracked, but that at the time he examined the feet of the defendant’s horse the horse had b.een shod all around, and defendant said he had had him shod behind at Atoka; that he did not measure the tracks or the hoof, of the defendant’s horse, and that he tracked said horse about nine miles from Antlers an.d lost it.

      Joe Whiteside, recalled, testified that on Tuesday morning after the homicide Wednesday night the defendant told him that he (defendant) spent Wedriesday night at Pat Taylor’s and played poker with Pat Taylor and George Blaine, but did not say where he played poker.
    The defendant moved the court to direct a verdict of not guilty, which said motion for a directed verdict was denied, and the defendant excepted.
    For the Defense.,
    A. L. Johnson testified that he resided at, and was the postmaster of, Farris, Okla.; knew the defendant since 1911 and his general reputation in the community in which he lived as being a law-abiding citizen, and that it was good; that he remembered the incident in which the depot agent at Antlers was killed; and that before said homicide, but how long he was unable to say, he changed a $20 bill for the defendant.
    Several other persons also testified to the previous good character of the defendant as a law-abiding citizen, and thereupon the state announced that it did not make any issue of the good reputation of this defendant up to the time of the killing.
    Edgar Everidge testified that he was a brother of the defendant and 22 years old in November; that he remembered the killing of Pat Hearn, the depot agent; that on Monday, prior to the killing of Mr. Hearn, he was present.and saw Mr. Johnson change a $20 bill for the de-' fendant, giving him silver in change, and, while he did not know, he thought he also gave him some pennies.
    Ethel Brown testified that she remembered about hearing of the death of the depot agent at Antlers, Okla., on September 16, 1915, at which time she was living at Farris, just west across the street from the phone office; that on the morriing after the agent was killed she saw Rufus O’Quinn at Mrs. Piercy’s between 6 and 7 o’clock, making up bread and had dough all over his hands; that she went over there to get water, and O’Quinn asked her to have a drink of beer, for which she thanked him and declined; that she did not see the defendant there; that the evening before she had seen Edward Hembree and the defendant over at Mrs. Piercy’s.

      Momcm Pruiett, S. E. Welch, and Baxter Taylor, for plaintiff in error.

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

(after stating the facts as above). The only errors relied on in defendant’s brief for a reversal of the judgment are the following:

(1) The admission, against the objection of the defendant, of the testimony of O’Quinn of the statements made to him by Chock Hembree, in the absence of the defendant and after the commission of the offenses charged, that the defendant was a coconspirator with said Hem-bree and Floyd Aikens in the robbery of the Frisco Depot at Antlers and the killing of the agent, and giving details of such robbery and murder. The admission, against the objection of defendant, of the testimony of-that Floyd Aikens, one of the codefendants, had, in the absence of the defendant and after the commission of the offense charged, made to-, that he (Hembree) and the defendant had robbed the Frisco Station at Antlers and killed the agent.

(2) Giving the jury the following instruction:

“Where parties enter into a conspiracy for the purpose of committing a robbery and dividing the proceeds of such robbery among themselves, such conspiracy continues and such parties are responsible for the acts of their cocon-spirators incident to or growing out of such conspiracy and done in pursuance thereof, until they have divided the proceeds of such robbery.”

The errors insisted upon by the defendant will be considered in the inverse order in which they are above stated.

The correctness of said instruction so seriously complained of by the defendant is not an open question in this jurisdiction, this court, in Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300, having approved an instruction- in the identical language of the one complained of, which instruction was doubtless copied from Holmes v. State, supra.

In Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334, Judge Doyle, Presiding Judge, speaking for the court, approved the above-cited holding in Holmes v. State, supra, and says:

“And where a conspiracy embraces not merely a series of unlawful acts, but also extends to a division of the fruits and profits of such acts among the conspirators, anything said or done by them, although after the commission of the unlawful acts, but before a division of the profits of such acts, is admissible against all other conspirators” (citing Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796; State v. Pratt, 121 Mo. 566, 26 S. W. 556; Scott v. State, 30 Ala. 503).

In the case of Grayson v. State, Judge Doyle further says:

“The theory upon which such evidence is admissible is that the conspiracy does not terminate until there has been a division of its fruits and spoils” (citing People v. Opie, 123 Cal. 294, 55 Pac. 989; Wharton’s Crim. Ev. [9th Ed.] 698).

Certainly a conspiracy to rob a cash drawer of a depot by three coconspirators authorized the jury to infer that such conspiracy also included a division of the money secured by such robbery.

The evidence in this case, entirely eliminating the statements respectively made by the codefendants Aikens and Hembree as to how said robbery and murder were committed and by whom, shows that there was conspiracy to rob the Frisco Depot at Antlers, and that in the furtherance of said conspiracy Mr. Hearn was most brutally murdered. This leaves but one question for determination: Was the defendant a coconspirator in the commission of said crimes ? The peculiar tracks of the defendant’s horse being immediately after the commission of said crime found where the defendant’s horse had been hitched near the scene of the tragedy, and tracked therefrom some ten miles, going in the direction of Farris, and the defendant seen early on the same morning of the murder going in the direction of Farris riding horseback; that the night of the homicide he borrowed a pistol, giving a false reason for borrowing it; that on the night preceding the murder he was, in company with his code-fendants Hembree and Aikens, riding horseback going in the direction of Antlers, and went within ten feet of the said depot and announced that he and others had come to rob the depot, and was dissuaded from so doing, and that he returned to Farris and the next day solicited the witness O’Quinn to join in the robbery, and when O’Quinn declined to join him and others in such robbery the defendant announced that they did not need O’Quinn and intended to rob the depot that night, which was in fact done; that about 8 o’clock of the night of the tragedy he was called out of a home by and went off with the caller, whom the defendant said afterwards was either Hembree or Aikens; that at about 7 o’clock of the morning of the tragedy, which was committed about four hours previous, which gave defendant ample time to come from Antlers, he appeared at Far-ris in a very nervous condition and looked like he had been up all night; that after the tragedy he was seen with money of the same denominations and kind of which the depot had been robbed; that the day after the murder he stated that he had about $18, the amount of which the depot had been robbed; his conflicting statements as to where he was the night said crimes were committed; the incriminating statements he made to the lady he visited at McAlester a few days after the tragedy, “that he was in Antlers at the time of the tragedy and saw a man killed there, and that he was within ten feet of the man when he was killed, and that the name of the man killed was H|earn” — clearly point to the defendant as an active agent in the commission of the homicide charged. And when to said evidence is added the fact that the defendant did not testify in his behalf, and did not offer evidence in his defense, except evidence of hi.s previous good character, we are of the opinion that, excluding the entire evidence of the statements made respectively by Hembree and Aikens as to how and by whom the deceased was killed, the guilt of the defendant is shown by legal evidence beyond a reasonable doubt.

The statements made by Hembree and Aikens respectively and not made in the presence of the defendant, as to who committed the homicide charged, and the particulars thereof, including the statement that the defendant was a conspirator therein, were certainly not made in furtherance of the conspiracy to rob the depot of the Frisco Railroad at Antlers, were mere confessions on the part of Hembree and of Aikens, and such confessions were improperly admitted in evidence. But the evidence, eliminating •therefrom the said confessions, showing that the defendant is guilty of the homicide charged, and, after an examination of the entire record, being unable to say that the admission of said confession has probably caused a miscarriage of justice, or has deprived the defendant of some substantial constitutional or statutory right, we are without authority to reverse the judgment rendered, on account of the errors committed in admitting in evidence said confessions, being prohibited from so doing. Section 6005, Rev. Laws 1910. If said confessions of Hembree and Aikens had been in furtherance of the conspiracy to rob the Frisco Depot at Antlers at the time charged in the information, the said conspiracy not having ended by reason of the fact that the proceeds of said robbery had not been divided among the conspirators, the admission of said confessions would have been free from error.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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


text:
    H. C. FRENCH et al. v. STATE.
    No. A-3459
    Opinion Filed July 6, 1920.
    (190 Pac. 707.)
    (Syllabus.)
    L INDICTMENT AND INFORMATION — Information Amended by Interlineation and Reverified — Motion to Quash. An information, amended by interlineation and by leave of court, and properly reverified before the cause is called for trial, is not open to a motion to quash, although it is not shown upon the information that the complaining witness had been resworn thereto, if in truth and in fact said witness had been resworn thereto, and the court so found on competent and uncontra-dicted evidence upon the hearing of the motion to quash.
    2. SAME — Marking “Refiled.” It is not necessary to mark an information, amended merely by interlineation, “refiled.”
    3. SAME — Necessity for Reverification. Where the amendment to an information in a misdemeanor case is one of substance, it is necessary that the same he reverified.
    4. SAME — Time for Amendment as to Form Only. Where the amendment to the information is one of form only, not changing the nature of the charge' to the material prejudice of defendant’s rights, it may be made after plea entered, or after the cause is called for trial, or after the jury is impaneled.

      Appeal from County Court, Tulsa County; W. B. Williams, Judge.

    H. C. French and W. R. Sapp were convicted of unlawfully conveying intoxicating liquor, and they appeal.
    Affirmed.

      Ed Crossland, for plaintiffs in error.
    S’. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

On the 8th day of February, 19.18, the county attorney of Tulsa county filed in the county court of said county an information against the above-named defendants, the charging part of which was as follows:

“Be it remembered that George E. Reeves, the duly qualified and acting county attorney for Tulsa county, Oklahoma, who prosecutes in the name and by the authority of the' state of Oklahoma, comes now into the county court for Tulsa county, state of Oklahoma, on this the 8th day of February, A. D. 1918, and gives the court to understand and be informed that on the 29th day of May, A. D. 1917, in Tulsa county, state of Oklahoma, H. C. French and W. R. Sapp, late of said county, and within the jurisdiction of this court, did unlawfully and wrongfully convey intoxicating liquor, to wit, 500 half pints of whisky, and 6 gallons of alcohol, from a certain point, unknown to this affiant, to a certain point about two miles west of Col-linsville, Okla., in the northeast part of Tulsa county, Okla., known as Horse Pen Bridge, in violation of the prohibitory liquor laws of the state of Oklahoma.”

Said information was signed by George Reeves, County Attorney, and was verified as follows:

“State of Oklahoma, County of Tulsa — ssu.:
“I, E. S. McQueen, being first duly sworn, upon oath depose and say that I have read the foregoing information, and know the contents thereof, that all the allegations therein contained are true. E. S. McQueen.
“Subscribed and sworn to before me this 8th day of February, A. D. 1918. Frank INGRAHAM.”

Said information was indorsed on the back thereof as follows:

“No. 3593.
“State of Oklahoma v. H. C. French et al. Information for Conveying Intoxicating Liquor. In the County Court of Tulsa County.
“Filed Feb. 8, 1918. Frank Ingraham, Court Clerk.
‘‘George E. Reeves, County Attorney of Tulsa County, Oklahoma.”

Then followed the names of the state witnesses, with their post office addresses.

On the 8th day of February, 1918, warrants of arrest for each of the defendants were issued on said information and they were in due time brought into court, where, on the 8th day of March, 1918, they each pleaded “ not guilty” to the charge, the cause was set for trial for the 11th day of March, 1918, and appearance bond of each defendant fixed in the sum of $1,000. On the 12th day of March, 1918, each defendant was released on bond, and also on said date the following proceedings were had in said cause:

“Permission granted to amend, reswear and refile information. Defendants plead not guilty. Objection to continuance. Continued for term on motion county attorney.”

No further proceedings were had in said cause until the 19th day of June, 1918, when, after the defendants had announced ready for trial, the court granted the defendants permission to withdraw their plea of “not guilty” and file a motion to quash the information, which was as follows:

“Come now the defendant H. C. French and W. R. Sapp and move the court to quash and set aside the information herein, because same is not properly verified as required by law, not verified by the proper officer or any officer.”

On the same date defendants filed a demurrer to the information “for the reason that the same does not state a public offense.” Both the motion to quash the information and the demurrer thereto were overruled, and proper exception taken to such actions.

Thereafter defendants re-entered their pleas of “not •guilty,” and a jury was called, examined, accepted, and sworn to try the cause. Thereafter, when the first witness for the state was called to testify, counsel for the defendants interposed an objection to “the introduction of any testimony, for the reason that there is no information on file in this case. That the same was never verified by any .officer authorized under the law to administer an oath. Further that at the last term of court the state was given leave to amend the information by interlineation and to have the same refiled, but that the same has never been refiled, and had never been verified in accordance with the orders of the court; that the facts show it was ‘subscribed and sworn to before me this 8th day of February, 1918. Frank Ingraham’ — not shown that he is any officer, or anything, or holds any office, or any clerk or any one' authorized to administer an oath.” Thereupon, the court permitted the county attorney to introduce Mr. E. S. McQueen, the person who swore to the original information, who testified, over objection and exception by defendants’ counsel, that on the 12th day of March, 1918, he had resigned and had been resworn to the information which had been amended by interlining the words “within the state of Oklahoma-,” between the word “certain point” and the words “unknown to this affiant.” Thereupon the court found that the amended information had been resigned and resworn to by the complaining witness, E. S. McQueen, on the 12th day of March, 1918, in conformity with the order of court made of that date, and the court then ordered the clerk to note upon the information the following:

“Re-signed and resworn to this 12th day of March, 1918”

—over the objection and exception of defendants’ counsel. Thereupon, the following occurred:

“Mr. Crossland: It is shown at the bottom of the information, in writing, immediately under ‘subscribed and sworn to before me,’ to wit: ‘Refiled and resworn to this the 12th day of March, 1918. Frank Ingraham, Court Clerk, by R. L. Laws, Deputy.’ That these words were in fact placed on this information on this the 19th day of June, 1918, after the jury had been sworn to try this case, and that in truth and in fact the said R. L. Laws did not, as a deputy ever reswear the said E. S. McQueen to the said information at any time, that on the 12th day of March, 1918, or at any time.
“The Court: The writing: ‘Refiled and resworn to this the 12th day of March, 1918. Frank Ingraham, Court Clerk, by R. L. Laws, Deputy’ — was placed on said information on the 19th day of June, 1918, at the order of the court for the purpose of carrying out a previously made order in reference to the reswearing and refiling of said information made by the then duly elected, qualified, and acting judge of said court, namely, H. L. Standeven, which said order is in words as follows, to wit: ‘Permission granted to amend, reswear and refile’ — it appearing to the court that said information was resworn to and re-signed by E. S. McQueen on the 12th day of March, 1918, at the time the order was made by the then trial judge, H. L. Standeven, in open court.
“Mr. Crossland: To which we object and except.
‘Thereupon the court took an adjournment until 1:30 o’clock p. m. of the same day, to wit, June 19, 1918.
“1:30 p. m. June 19, 1918, court met pursuant to adjournment.
“Present: Same as before.
“(Out of the presence of the jury).
“The Court: The indorsement on the back of the information, to wit: ‘Refiled, March 2, 1918. Frank Ingra-ham, Court Clerk, by R. L. Laws, Deputy’ — was placed thereon after the jury was sworn to try the case, on this the 19th day of June, 1918.
“Mr. Crossland: To which the defendants object and except.
“The Court: The following was placed upon the information herein after the jury was sworn to try the case and upon request of the county attorney to have the information resworn to: The name of E. S. McQueen, the words, ‘Subscribed and .sworn to before me this the 19th day of June, 1918, W. B. Williams, County Judge.’
“Mr. Crossland: To which the defendants and each of them object and except.”

The court had copied fully from the proceedings in this case preliminary to the taking of .testimony for the reason that counsel now bas,es his entire contention for a reversal of this judgment on the ground that the trial court erred in overruling the motion to quash the information. At the time this motion was interposed, the original information had been amended merely by interlineation, as above indicated, and had been re-signed and resworn to, and the trial court made a finding, based upon evidence, that such action was taken on March 12, 1918, the day leave was granted to do so.

The fact that the amended information was not marked “refiled” did not in any way vitiate the amendment or the information. There was no necessity for refiling the information in the event the amendment by interlineation is either one of substance or of form merely. The cause had never been dismissed or the information stricken from the files. It remained in the files of the court during the entire proceeding, and the amendment did not have the effect of withdrawing it therefrom.

Where the amendment is one of substance, it is, however, necessary in a misdemeanor case that the information be reverified. Hazelton v. State, 8 Okla. Cr. 184, 126 Pac. 703.

The record shows, and the court so found, that the amended information had been reverified in this instance before the case was called for trial. That finding is binding on this court, in the absence of a contrary showing.

The amended information having been reverified before the cause was called for trial, the motion-to quash was not well taken, and was properly overruled.

The amendment having been made after pleas of “not guilty” had been entered by each defendant, it is only necessary to determine whether the amendment worked any material prejudice to the rights of the defendants. Apparently not. The amendment in no way changed the nature of the offense. It merely made more specific the allegation as to the place from which the liquor was conveyed being “within the state of Oklahoma.” Prior to the amendment, the information alleged that—

“In Tulsa county, state of Oklahoma, H. C. French and W. R. Sapp, late of said county, and within the jurisdiction of this court, did unlawfully and wrongfully convey intoxicating liquors, to wit, 500 half pints of whisky, and 6 gallons of alcohol from a certain point unknown to this affiant, to a certain point 'about two miles west of Col-linsville, Okla., in the northeast part of Tulsa county, Okla.”

It is the opinion of this court that the original information sufficiently alleged the entire transaction to have taken place “in Tulsa county, state of Oklahoma,” and that the amendment was merely one of form rather than substance, which could not have in any way prejudiced the material rights of the defendants, whether made before or after the cause was called for trial.

Whether, therefore, the amendment be considered one of substance or only of form, there was no error in overruling the motion to quash, because, if one of substance, the amendment was made by leave of the court before the cause was called for trial, and was properly reverified before the trial; if one of form only (and this we think the amendment to be) it in no way changed the nature of the charge to the material prejudice of the defendants’ rights, and if made after plea entered or after the cause was called for trial or after the jury was impaneled, there was no reversible error. Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Hogue v. State, 9 Okla. Cr. 521, 132 Pac. 511.

Absolutely no defense was made to the charge, and the state’s evidence clearly supports the accusation, the verdict and the judgment.

The conviction is affirmed.

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


text:
    TOM THOMAS v. STATE.
    No. A-3484.
    Opinion Filed July 6, 1920.
    (190 Pac. 711.)
    (Syllabus.)
    1. APPEAL AND ERROR — Subsequent Appeal — Law of the Case. Where on a second appeal from a murder conviction the question of the sufficiency of the evidence is raised, and the evidence is substantially the same as adduced at a former trial, which evidence was held sufficient to sustain the conviction on the first appeal, no new question is raised on the second appeal.
    2. APPEAL AND ERROR — Presumption of Regularity of Proceedings — Arraignment and Plea — Time—Waiv.er. All presumptions on appeal favor the regularity of the proceedings in the trial court. Where the record on a former appeal shows that the cause was tried in all respects as if a plea of “not guilty” had been entered by the defendant, and no contention was made either in the trial court or on appeal that there had been no arraignment of, and plea entered by, the defendant prior to that trial, the question of the arraignment and plea was waived by failure to raise it by timely objection, and the presumption will be indulged in a subsequent appeal that the defendant was either arraigned and pleaded “not guilty” or else waived arraignment and pleaded “not guilty” at some time prior to the first trial. Under such circumstances another arraignment and plea of “not guilty” were unnecessary, and it was not error for the trial court to deny defendant’s motion for a formal arraignment prior to the retrial of the cause.

      Appeal from, District Court, -Seminole County; J. W. Bolen, Judge.

    Tom Thomas was convicted of murder, and he appeals.
    Affirmed.

      Omoig & Moore, 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 Seminole county, wherein the defendant was convicted of the crime of the murder of one George Gammill, and his punishment fixed at imprisonment in the state penitentiary for life.

This is the second appeal taken to this court in this action; a former conviction having been reversed on the 19th day of May, 1917, and the cause remanded to the trial court for a new trial.

The facts are fully stated in the former opinion, reported in 13 Okla. Cr. 414, 164 Pac. 995. We therefore deem it unnecessary to make a restatement of the case at this time, as the evidence is substantially the same as that adduced at the former trial.

As in the former appeal, it is again contended that the evidence is insufficient to sustain the conviction.

This question was decided adversely to the contention of appellant’s counsel in the first appeal, and it is only necessary to reiterate what was said in that opinion:

“There is evidence in the record fully sufficient to authorize the jury to conclude that the appellant was guilty,”

The only other question now urged as ground for reversal is the refusal of the trial court to arraign and permit the defendant to plead to the information on the retrial of the case.

The record of the minutes of the trial on a former appeal is silent as to whether or not the defendant was formally arraigned and entered á plea at any time prior to the trial. But that record disclosed, however, that the defendant was furnished with a copy of the information, together with a list of the witnesses to be used by the state in chief together with their post office addresses, as required by section 20, art. 2, Const., and that defendant therefore had knowledge of the contents of the information and knew who would be called as witnesses in chief against him; that defendant was present in person at the trial, and announced ready for trial, and was ably represented by counsel who assisted in the selection of the jury, and in the examination of the witnesses; that defendant not only introduced a number of witnesses in his own behalf, but also himself testified; that the county attorney, Mr. Hill, after the jury was sworn to try the cause, read the information and stated the plea of the defendant to be “not guilty,” that Mr. Orwig then stated the case for the defendant ; that evidence both for the state and the defendant was then introduced to the jury in proper order. The instructions of the court also stated the plea of the defendant to be “not guilty;” in fact, that the former trial proceeded to a conclusion on the theory that the defendant had pleaded “not guilty” to the charge, without any objection having been urged that there had been no arraignment or plea, and, further, it was not contended on appeal in the former hearing of this case in this court that there had been no arraignment of, and plea entered by, the defendant, and the judgment of conviction was reversed entirely on other grounds. The question of the arraignment and plea was waived by failure to raise it by timely objection in the former appeal.

The record on the former appeal clearly showing that the cause was tried in all respects as if a plea of “not guilty” had been entered by the defendant, it was immaterial that the record failed to show that he was formally arraigned.

In Sam Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673, this court held:

“(a) 'Where the record is, silent as to whether or not the defendant has been arraigned, but shows that the defendant appeared by counsel and announced ready for trial, participated in the selection of the jury and the examination of the witnesses, and further shows that the issues in the case were properly made up and submitted to the jury, it is too late after conviction for the defendant to object upon the ground that he was not arraigned.
“(b) Where.the record is silent as to whether the defendant had been arraigned, but affirmatively shows that the defendant was accorded all the rights and privileges which the statute secures him by arraignment, this court will presume that the defendant was either arraigned or that he waived arraignment.”

The foregoing decision met approval in the following cases: Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685. The latter case contains a lengthy and able discussion of the necessity of the record showing an arraignment and plea where the trial was conducted in all respects as if a plea of “not guilty” had been entered, and contains the citation of numerous authorities to the effect that the failure of the record to show an arraignment and plea under such circumstances does not constitute a fatal defect, but is a mere irregularity not involving a substantial right of the defendant.

Had this question, therefore, been presented in the former appeal, the decision would have been adverse to the appellant. Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116. The presumption in such instance must be in favor of the regularity of the proceeding in the lower court, and that presumption will be indulged in this court in a subsequent appeal.

We must presume, therefore, that the defendant was either arraigned and pleaded “not guilty,” to this charge, or else waived arraignment and pleaded “not guilty” at some time prior to the first trial. Under such circumstances, another arraignment and plea of “not guilty” were unnecessary. Levy v. State, 49 Ala. 390; Reynolds v. State, 34 Fla. 175, 16 South. 78; Bradham v. State, 41 Fla. 541, 26 South. 730; State v. Simms, 71 Mo. 538; State v. Tate, 156 Mo. 119, 56 S. W. 1099; People v. McElvaine, 125 N. Y. 596, 26 N. E. 929; Planck v. Bishop, 26 Neb. 589, 42 N. W. 723.

It was not error, therefore, for the trial court to deny defendant’s motion for a formal arraignment prior to the retrial of the cause.

In this connection we desire to quote fully from the opinion delivered by Mr. Justice Day for the Supreme Court of the United States in Garland v. Washington, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772, as follows:

“It is apparent that the accused was tried and convicted upon information charging an offense against the law, that he had a jury trial, with full opportunity to be heard, and that he wa,s in fact deprived of no right or privilege in the iñaking of bis defense, unless such deprivation arises from the fact that he was not arraigned and required to plead to the second information before trial. The object of arraignment being to inform the accused of the charge against him and obtain an answer from him was fully subserved in this case, for the accused had taken objections to the second information and was put to trial before a jury upon that information in all respects as though he had entered a formal plea of not guilty. In this view, the Supreme Court of Washington, following its former decisions, held that the failure to enter the plea had deprived the accused of no substantial right, and that, having failed to make objection upon that ground before trial, it was waived and could not be subsequently taken. This ruling, it is contended, deprived the plaintiff in, error of his liberty without due process of law within the meaning of the' Fourteenth Amendment of the Constitution.
“Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. Peck, 199 U. S. 425, 435 [50 L. Ed. 256, 260, 26 Sup. Ct. Rep. 87], and previous cases in this court there cited. Tried by this test, it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right or in any wise changed the course of trial to his disadvantage. All requirements of due process of law in criminal trials in a state, as laid down in the repeated decisions of this court, were fully met by the proceedings had against the accused in the trial court. The objection was merely a formal one, was not included in the general language in which the objection to the introduction of evidence was interposed before the trial, and was evidently reserved with a view to the use which is now made of it, in an attempt to gain a new trial for want of compliance with what in this case could have been no more than a mere formality.
“It is insisted, however, that this court, in the case of Crain v. United States, 162 U. S. 625 (40 L. Ed. 1097, 16 Sup. Ct. Rep. 952), held the contrary. In that case the question was specifically made as to the necessity of a plea before trial, duly entered of record. The learned justice who spoke for the majority of the court announced its conclusion approving a number of early cases in the state courts which had held that such form of arraignment entered of record was essential to a legal trial, and holding that in a federal court no valid trial could be had without the requisite arraignment and plea, and that such must be shown by the record-of conviction. If a legal trial cannot be had without a plea to the indictment, duly entered of record before trial, it would follow that such omission in the present case requires a reversal of the judgment of conviction, because the prisoner has been deprived of due process of law.
“Technical objections of this, character were undoubtedly givén much more weight formerly than they are now. Such rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of procedure should be fully complied with. But, with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speaking for the minority of the court in the Crain Case, when he said (page 649) :
“ ‘Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which under the circumstances would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.’
“Holding this view, notwithstanding our reluctance to overrule former decisions of this court, we now are constrained to hold that the technical enforcement of formal rights in criminal procedure sustained in the Cram Case is no longer required in the prosecution of offenses under present systems of law, and so far as that case is not in accord with the views herein expressed it is necessarily overruled.”

The conclusion is reached, therefore, that where in a former trial the judgment of conviction is reversed on appeal, and the record indicates that a plea of “not guilty” had been entered, or where in such trial the parties proceed as if the defendant had been duly arraigned and had entered a formal plea of “not guilty,” and where there was no objection made that the defendant had not been arraigned or had pleaded until after such judgment of conviction had been reversed on other grounds, that on a second appeal in such case the defendant will be presumed to have been duly arraigned and to have pleaded “not guilty” prior to the first appeal, and a subsequent arraignment and plea are unnecessary to join the issue in the last trial.

For reasons stated, the judgment of the district court of Seminole county rendered in this cause imposing imprisonment in the state penitentiary for life against the said Tom Thomas for the murder of George Gammill is affirmed.

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


text:
    ANDREW JOHNSON v. STATE.
    No. A-3370.
    Opinion Filed July 6, 1920.
    (190 Pac. 897.)
    (Syllabus.)
    1. APPEAL AND ERROR — Right to Complain — Election to Prosecute for Lesser Offense. A defendant will not be heard to complain that the prosecuting officer elected to try him for the lesser grade of the offense included within the same criminal transaction, as a conviction for such grade of offense, procured without fraud,' conivance, or collusion of the defendant, 'is a bar to any subsequent prosecution for any other grade of the offense growing out of the same criminal act.

      '2. APPEAL AND ERROR — Review—Sufficiency of Evidence. Where there is competent evidence in the record from which the jury might reasonably conclude that the defendant is guilty of the crime charged, a judgment of conviction will not be reversed on appeal on the sole ground that the evidence is insufficient.

      Appeal from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge.

    Andrew Johnson was convicted of an assault with a .sharp and dangerous weapon with intent to do bodily harm .and without justifiable or excusable cause, and he appeals.
    Affirmed.

      G. A. Outcelt, for plaintiff in error.

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

The defendant, Andrew Johnson, was charged by information filed in the district court of Pottawatomie county with an assualt with a dangerous weapon, to wit, a knife with a blade about two inches long, upon the person of one Ewers White, with intent to do great bodily harm, and without justifiable or excusable cause. The trial resulted in a verdict of ‘‘Guilty as charged in the information,” the jury fixing the punishment at 90 days’ imprisonment in the county jail. From this judgment of conviction the defendant has appealed to this court, and contends that the evidence is wholly insufficient to sustain the conviction, and also that if it shows the defendant guilty of any crime at all it is of some grade of assault and battery, which said crime was not included within the charge filed against him.

The latter contention is based upon a holding of this court in the case of Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129. The Parks Case has no bearing upon the questions involved in this appeal. In that case, while the defendant was charged with assault with intent to do bodily harm, there was no evidence which would authorize the jury to find the defendant Parks guilty of such a crime, while in this case there is evidence which would support a conviction either of some grade of assault and battery or merely of an assault with intent to do bodily harm, as the testimony of the prosecuting witness shows conclusively that the defendant assaulted him at least one time without inflicting any wounds upon his person. While the prosecutions {Parksi Case and this) were each based on the same section of the statute, the facts are dissimilar. Here the evidence will support the charge, and for that reason there is no fatal variance, although there is some evidence that later in the difficulty a battery was accomplished by defendant.

Furthermore, the defendant will not be heard to complain that the prosecuting officer elected to try him for the lesser grade of the offense.included within the same criminal transaction, as the conviction here is a bar to a subsequent prosecution for any grade of assault and battery growing out of the defendant’s acts toward the prosecuting witness on that occasion, as there is no showing that this conviction was procured by the fraud, connivance,' or .collusion of the defendant. 8 Ruling Case Law, p. 146, §131.

The contention also that there is no evidence in the record sufficient to support the verdict is without merit. This court has repeatedly held that where there is any competent' evidence in the record from which the jury might reasonably conclude that the defendant was guilty of the crime charged a judgment of conviction will not be reversed on appeal on the ground that the evidence is insufficient. Bell v. State, 14 Okla. Cr. 167, 168 Pac. 827; McDaniel v. State, 14 Okla. Cr. 219, 169 Pac. 1128; Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176; Crilley v. State, 15 Okla. Cr. 44, 181 Pac. 316; Garret v. State, 15 Okla. Cr. 475, 178 Pac. 269; Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486.

The evidence of the prosecuting witness is positive to the effect that the defendant assaulted him, and there are numerous circumstances from which the jurors were authorized to conclude that such assault was made with a knife as alleged in the information; that the same was committed with intent to do bodily harm; and that there was no justifiable or excusable cause for its commission. While the evidence is conflicting on some of the material elements of the offense, the conflicts were for the jury to determine, and this court would not be authorized to substitute its judgment for that of the exclusive triers of the facts.

Finding no reversible error in tbe record, it is the opinion of the court that the judgment should be affirmed; and it is so ordered.

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