text:
    WILL ROSE v. STATE.
    No. A-1160.
    Opinion Filed November 18, 1912.
    (127 Pac. 873.)
    1. APPEAL — Briefs—Preparation. It is the duty of counsel for an appellant to prepare the transcript of the record and their briefs in such a manner that they can be read by this court. If the briefs are typewritten, they should not be on onionskin paper, and so indistinct as to make it difficult to read them.

      2. CONTINUANCE — Grounds—Proceedings to Procure. (a) An application for a continuance is addressed to the sound discretion of the trial court, and a conviction will not be reversed upon appeal upon the ground that the trial court erred in overruling an application for a continuance, unless it appears from the record that appellant was injured thereby.
    (b) Before a defendant applies for a continuance, it is his duty to exhaust all of his legal remedies to obtain the presence of his witnesses, and this must affirmatively appear in the application for a continuance, otherwise the application will be bad on its face.
    (c) As a general rule, a continuance will not be granted to allow a defendant to obtain cumulative testimony.
    (d) Although an application for a continuance may be good upon its face, yet where it is overruled, and upon the trial of the case it appears from the whole record that the testimony for which the continuance was sought could not have affected the result of the trial, a conviction will not be reversed.
    3. PERJURY — -Elements—Statutory Provisions, (a) Section 2183, Comp. Laws 1909, which declares that ‘ ‘ an unqualified statement of that which one does not know to be true, is equivalent to a statement of that which one knows to be false,” is no part of the definition of perjury. It does not create a separate offense or establish a rule of pleading.
    (b) Upon an indictment drawn under section 2176, Comp. Laws 1909, defining perjury generally, a conviction may be had upon proof made as provided in section 2183 — -that the accused had made an unqualified statement of that which he did not know to be true, provided the jury are satisfied beyond a reasonable doubt that such statements were made willfully and deliberately and with the corrupt intention that they should be accepted and believed as true. A criminal and corrupt intent is a vital element in the crime of perjury.

      í. PERJURY — Evidence—Sufficiency. For facts which justify and require a verdict of guilty of perjury, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; Summers Hardy, Judge.

    Will Rose was convicted of perjury, and his punishment assessed at 10 years in the state penitentiary, and he appeals.
    Affirmed.
    W. R. Collins testified that he was clerk of the district court of Bryan county, Okla.; that in 1909 a prosecution was pending in said court against R. Coleman, who was charged with the crime of perjury, and upon the trial of Coleman appellant appeared and was duly sworn, and testified as a witness in behalf of the defendant." The indictment, files, and record in the cáse of the State of Oklahoma v. R. Coleman were introduced in evidence. We will quote- in full from the stenographic report of the testimony of appellant upon the trial of R. Coleman, as this is the evidence upon which the charge of perjury was based and which was proven in this case:
    “Q. Do you recollect the occurrence, or, rather, a certain night that an occurrence that happened in á storm cellar at Colbert about February or March last year at the time FIenry • Roberts came up on some parties in a storm cellar? A. Yes, sir. Q. Were you in that storm cellar at that time that night? A. Yes, sir. Q. About what time of the day or night did you go to that storm cellar? A. I was there two different times. Q. The first time you went there? A. I suppose about 9 o’clock. Q. Who did you go with that first time? A. I went with Mr. Coleman. Q. R. Coleman? A. Yes, sir. Q. You and he went together there about 9 o’clock that evening? A. Yes, sir. Q. Did you go down in the-storm cellar? A. Yes, sir. Q. Who was in there at that time, do you recollect? A. There was two or three boys in there. Q. Do you recollect who they were? A. Yes. Q. Who were they? A. Vernon Badgett, Ed Goosby, and — I don’t know. There was three boys, but I couldn’t say for certain, but I think it was Walter Rogers. Q. You are not positive about that? A. No, sir. Q. About 9 o’clock that evening? A. About nine. Q. How long were you and this defendant in the storm cellar on that occasion? A. We was there I suppose about 10 minutes, all told, at that time. Q. After the expiration of that 10 minutes, did you and this defendant do anything? A. We went out of there. Q. Out of where? A. The cellar. Q. Where did you go? A. To the barber shop. Q. Where did Mr. Coleman go? A. He went to Leecraft’s store, right there across the street. I don’t know whether he went to Leecraft’s store or to the drug store. I went across the street to the barber shop. Q. You left'Mr. Coleman at the drug store, and went across the street? A. You know the drug store and Mr. Leecraft’s store join, and, when I went across the street, I left him in front of Leecraft’s store. Q. Did you walk with him down to that point from the storm cellar? A. Yes, sir. Q. How long were you in that barber shop do you suppose ? A. I don’t know, two or three fellows was in there ahead of me for a shave. I guess I was there about 30 minutes. Q. Well, after you left the barber shop, where did you go ? A. I went back across the street, and Coleman was standing there. Q. Where? A. Out in front of this drug store, and he and I went on back up to the storm cellar. Q. About what time was that do you suppose? A. I don’t know. I guess I stayed over at the barber shop there in town, and it was breaking up when I got through shaving. We all went there, and the show had broken up, and we went on back down to the cellar. Q. Who was in the cellar when you all went back the second time? A. Well, there was four or five boys in there then. Q. Who were they? A. Well there was Ed Goosby, Vernon Badgett, Walter Rogers, I guess that was all that was in there then, and Vernon Bell. Q. Anybody else? A. Yes; Oscar Askew, he was in there. Q. Do you remember whether or not George Hinson was there at that time? A. Yes; he was there. Q. Give all the parties who were there? A. That is all I remember. Q. What were those boys doing in the storm cellar ? A. They were sitting around in there. ' Q. Sitting on seats ? A. When they dug the dugout, they left banks on each side; and they were sitting around, wasn’t doing anything, just talking. Q. Were they drinking? A. No, sir; not that I know of. Q. State to the jury whether or not you saw any crap shooting or anything of that sort? A. No, sir. Q. Did you see this defendant at this time engage in any gambling game? Did you see him shooting any craps? A. No', sir. Q. Play any poker? A. No, sir. Q. Win or lose any money? A. Never seen him win any money. Q. Did you see anybody in his presence while you were with him shoot any craps? A. No, sir. Q. Play any poker? A. No, sir. Q. Or win or lose any money at any gambling game? A. No, sir. Q. About how long had you and this defendant, Mr. Coleman, been there before Mr. Roberts, on this second trip I am talking about, before Mr. Roberts came to the storm cellar? A. Just a short time I suppose. Q. Your best judgment? A. Not over 10 minutes I guess, then or 15 minutes. Q. What was the first thing said by Mr. Roberts, or any one of his party? A. He called Mr. Coleman to come out there. Q. Do you remember his exact language or words? A. I think he just said, ‘Come out here, Puck.’ Q. Do you remember the reply made by the defendant R. Coleman? A. Yes; he never replied but once. Q. What did he say ? A. Everything was quiet for a minute or two, and he said ‘Do you want me, Mr. Plenry?’ and Mr. Roberts, the deputy sheriff, told him, ‘Yes,’ and he walked on out and three other boys went out with him. Q. Who? A. Vernon Badgett, George Hinson, and Oscar Askew. Q. State whether or not you went out about the time the defendant did? A. No; I stayed in. Q. How long did you stay in there after he had gone out? A. Two or three minutes I guess. Q. Did you hear any statements that were made by Mr. Coleman or Mr. Roberts after Mr. Coleman went out? A. No, sir. Q. Where were the parties when you came out of the storm cellar? A. These boys? Q, Well, yes; Mr. Roberts and Mr. Coleman. A. They were out in the street, the four of them, and the officers and all of them. Q. Did you hear any statements made by any of that crowd after they had gone out in the street? A. Yes, sir. Q. What was it? A. I went out. I stayed in the cellar until I thought the ‘booger’ man had gone, and then I went out and climbed over the fence, and I seen the four men standing there, and I went up to the crowd, and Mi'. Henry Roberts asked me was I in that cellar. Pie said he didn’t see any storm coming up, and he was laughing, and about that time Mr. Coleman and those three boys that went out with him walked up and Mr. Coleman and Mr. Bowles engaged in a difficulty. Q. Did you hear any statement made after their difficulty or altercation had terminated, by this defendant? If so, please state what it was. A. He said something or other to Mr. Bowles, and Mr. Bowles called him a dirty stinking liar. Q. The defendant? A. Yes. Q. After the difficulty, did you hear any statement made by the defendant? A. Yes, sir. Q. What was it? A. Mr. Roberts taken him by the arm and said come on, and he made the remark he had the money to pay his fine. Q. That statement was made by Mr. Coleman? A. Yes; that is all the statement I heard him make. Q. Well, state to the jury whether or not you and Puck had a bottle of whisky that night? (Counsel for plaintiff objects on the ground that is is immaterial. Objection sustained.) Q. I will ask you this question: State to the jury whether or not you and Puck had been drinking together that evening. (Counsel for plaintiff objects, first, on the ground that it is immaterial, and, second, on the ground that it is leading. Objection sustained. Defendant excepts.) Q.-I will ask you for what purpose chiefly you and Puck went to the storm cellar that evening, the first time? (Counsel for plaintiff objects. Objection overruled.) A. We went over there to take a drink. Q. Did you take a drink. A. Yes, sir. (Counsel for plaintiff objects. Objection overruled.) Q. Well, I will ask you what really was the object of you boys meeting in that storm cellar on that occasion, if it wasn’t for the purpose of drinking? (Counsel for plaintiff objects.) Court: Ask the object, but don’t suggest the answer. Mr. Crook: I will withdraw the question. That’s all.”
    Ed Goosby testified in behalf of the state that he resided in Colbert; that on the 17th day of November, 1908, about half past 10 or 11 o’clock at night, Will Rose, the appellant, Oscar Askew, Puck Coleman, Vernon Badgett, Vernon Bell, John Goosby, John Hinson, and Walter Rogers were down in a cellar in the town of Colbert; that they had been there about an hour gambling with dice for money; that a quilt was hung up which covered the door; that the))- were all sitting on a kind of bench on each side of the cellar which ran around on the sides near the bottom of the cellar; that appellant both won and lost money; that witness saw appellant throwing dice during the game. On cross-examination wit-’ ness testified as to what he had been drinking, but that he was not drunk at the time this game'was going on. Witness saw appellant put money down on the game. Appellant drank some whisky down .in the cellar. A light was burning in the cellar. Witness heard the officers when they came. Witness and appellant stayed in the cellar when the officers came.
    George Plenson testified in behalf of the state: That he resided at Colbert. That he was acquainted with appellant Will Rose, had known him for about 12 years. Witness remembers the occasion in February or March when Henry Roberts went to a cellar out there in Colbert where a crowd of boys were in there. Witness was in the cellar at the time. They were all gambling. That Puck Coleman, Oscar Askew, Will Rose, John Goosby, Vernon Badgett, and witness were present at the time. That they were all shooting- craps together for money. During this time appellant Will Rose sometimes threw the dice. The. cellar was entered through a door on the east end and steps went down to the bottom. The door had a blanket in front of it to' obstruct the view. The boys had a lantern in the cellar, by the light of which they threw the dice, and a little shelf or bench running around on the sides of the dugout upon which they sat. This was about a foot and a half from the door. The cellar was built out of logs and dirt over the logs.
    John Goosby testified in behalf of the state: That he lived at Colbert. That he remembers the occasion in February or March, 1908, when Mr. Roberts came down in a cellar near Colbert, and found some boys gambling. That witness was present. That appellant Will Rose was there and a number of others. That R. Coleman, sometimes called “Puck” Coleman, was present also. That all present were shooting craps for money.. That a curtain was hanging over the door of the cellar. That sometimes “two bits” was put up on a game, sometimes a dime, sometimes a dollar, and sometimes two dollars were put up on a game. Witness knows that appellant Will Rose engaged in such game. He saw him both shooting craps and betting on the game. When the officers came, they blew out the light and all sat down. Mr. Roberts opened the door, and told them to come out. Coleman, Vernon Badgett, George Hinson, and Oscar Askew went out. The other boys remained in the cellar. Appellant did not go out at this time. After the officers went away, the rest of the boys came out of the cellar and went home. Witness had been in the cellar shooting craps and gambling about half an hour before the officers came. When the boys who remained in the cellar came out after they thought the officer had left, witness saw appellant running away from the cellar.
    Joe Pruitt testified in behalf 'of the state that he resided in Colbert, and remembers the occasion when the officers came to the cellar in that town, and found the boys gambling; that witness went to the cellar about 8 o’clock that night, arid found appellant Will Rose and the other boys. Witness stayed 15 or 20 minutes. Coleman turned around, and says to appellant, “Will, some of you boys come up to my office and get some blankets.” Appellant said to some of the other boys, “Come on,” and some of the boys went with him to get the blankets and hung one up over the door of the cellar. Witness then left. The next day witness learned that the officers arrested the boys for gambling in the cellar.
    W. S. Bowles testified for the state: That the cellar in question in the town of Colbert was his property. That on the night in question he noticed a light in the cellar. He went and told Mr. Roberts. Roberts looked in at the ventilator. Witness opened the door. He could not see anything when he first opened the door, but Bob Cordell had a dark lantern and threw the light in the cellar door. There was a blanket hanging down there on the bottom which covered the entire entrance. Mr. Roberts called on the boys to come out. Four came out.
    Milt McPherson testified for the state: That he was constable at Colbert at the time of the occurrence in question. Mr. Roberts was then deputy sheriff of Bryan county. That, in company with Mr. Roberts, Mr.. Cordell, and Mr. Bowles, witness went down into the cellar in question. When they went to the cellar, they could see the reflection of a light in it. Mr. Roberts spoke up, and said, “Come out boys, we have got you.” Four boys came out. .
    Henry Roberts testified for the state: That he was deputy sheriff of Bryan county, Okla., in February or March, 1908. They were looking for persons who were gambling. That they heard a noise in the cellar which was the property of Mr. Bowles. That witness looked through the ventilator and saw some money and men down in the cellar. Witness heard some one in the cellar say: “Come in the game. You can’t win no money and stay out of the game.” Witness then went in at the door and the light went out. Mr. Cordell, who was with witness, then threw his flashlight down there, and a blanket was hanging over the door from top to bottom which obstructed the view, so he could not see who was in the cellar. Witness then called to the boys to come out of the cellar. Four of them came out. Witness then placed the four men under arrest, and went away with them.
    The state then rested its case.
    J. E. Parkey testified in behalf of appellant: That he was postmaster at the town of Colbert. That on the evening of February 22, 1908, he saw appellant in the town of Colbert. He appeared to be drunk, although he walked- all right. Witness did not hear appellant talk.
    Crockett Davis testified in behalf of appellant that he saw appellant on the 23d day of February, 1908, about 8 o’clock. He appeared to be drunk.
    Joe Pruitt testified for the state in rebuttal: That he was in the cellar with appellant at the time the gambling occurred in Colbert. At this time appellant was duly sober. That his language and conduct was as natural as it always is.
    H. E. Roberts testified that he saw appellant on the night of the gambling in the cellar at Colbert; that he appeared to be drinking, but was not drunk; that he heard appellant talk, and could not notice any difference in his conversation; that appellant did not stagger when he walked.
    Milt McPherson testified for the state that he saw appellant on the night of the gambling in question; saw him walk and he did not stagger; heard him talk, and he talked like he always did; that appellant was not drunk at this time.
    J. W. Goosby testified for the state that, when he was in the cellar with appellant gambling on the night in question, appellant appeared to be sober. There was nothing wrong with his conduct. Witness did not see or hear appellant say anything out of the way.
    W. S. Bowles testified for the state that he saw the appellant on the night of the gambling. He thought that the appellant was drinking some, but he was not drunk.

      Charles B. McPherren, Charles P. Abbott, and Sprawls & Crockett, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

First. Much of the transcript of the record of this case is made up of carbon copies on onionskin paper which are so indistinct as to be almost unintelligible. The same is true of the copies of the brief of appellant which have reached this court. It is the duty of counsel to see that the transcript of the record and copies of their brief are typewritten so plainly that they can be easily read. The indistinct manner in which the typewriting was done in much of this record, and also in the brief of counsel for appellant, has forced us to work several days longer on this case than we should have done, trying to find out just what the record contained, and what points counsel for appellant relied upon. We truly hope that in the future counsel will see that their briefs and records are plainly typewritten.

Second. When this case was called for trial and after the state had announced ready, counsel for appellant filed the following motion for a continuance:

“In the District Court of Bryan County, State of Oklahoma. State of Oklahoma, Plaintiff, v. Will Rose, Defendant. Motion for a continuance. Comes now the defendant, Will Rose, and states that he is charged by indictment in the above-styled cause with the crime of perjury, and that the said cause is set down for trial on this date, and as grounds for this, his motion for a continuance of the said cause to a later date; alleges and states as follows, to-wit: That heretofore, on the 2d day of January, 1911, the defendant had a subpoena issued for one A. R. Cordell, of Colbert, Okla., and the said subpoena was on said date delivered to the sheriff of Bryan County, Okla., and thereafter duly served on said witness A. L. Cordell at Colbert, Bryan county, Okla.; that the defendant, who now resides at Durant, Bryan county, Okla., had no notice or information to the effect that the said A. R. Cordell would not be in attendance upon this court, until about 10 o’clock a. m. on this date, when the defendant learned from H. N. Roberts, deputy sheriff of Bryan county, Okla., that the wife of the said A. R. Cordell was dangerously ill, and that said Cordell would not probably be in attendance as a witness in this case; that the defendant through his attorneys immediately communicated by telephone with Mr. Arthur Rove, the proprietor of a drug store in Colbert, Okla., and learned from Mr. Rove that Mr. Cordell’s wife was dangerously ill; that said Colbert had stated that he would not be able to get away from home at this time. The defendant further states that he has used all diligence possible in securing process and having same served on said witness Cordell, and that on Friday, January 6th, the defendant in company with one of his attorneys, Robert Crockett, saw and talked to the said witness A. R. Cordell, in Colbert, Okla., and that the said Cordell stated that he had been subpoenaed as a witness for the defendant in, this case, and that he would be in attendance upon the court to testify in behalf of the defendant; that the said witness is not absent with the procurement or consent of the defendant. The defendant further states that said witness, A. L. Cordell, was at the time of the occurrence about which defendant testified a constable in the Colbert precinct, and that the said Cordell knew and observed the mental and physical condition of the defendant at the time it is alleged that a certain crap game was played, and that, if the said A. L. Cordell was present as a witness, he would testify in this case as follows, to-wit: That he was constable in the Colbert precinct at the time it is claimed that the defendant and others were engaged in a crap game in a cellar in Colbert, Okla. That he was in company with H. N. Roberts and Milt McPherson. That, after he and Roberts and McPherson had been at the storm cellar some little time, several boys came out of the storm cellar, and among them were Vernon Badgett, Vernon Bell, Ed Goosby, Oscar Askew, Walter Rogers, and Puck Coleman and George Hinson. That these boys stopped near the storm cellar, and that the witness H. N. Roberts, Milt McPherson, and W. S. Bowles were talking to them when the witness saw Will Rose come staggering from toward the said storm cellar. That said Will Rose was very drunk, and talked incoherently. The first thing Rose said was, ‘What the - are you fellows doing?5 He did not talk much, and was unsteady on his feet, and was about as drunk as a man could be and stand up. Pie did not say anything about gambling or where he had been or where he was going. He did not seem to know what was going on between the officers and the other boys. That the above is material to the defense of the defendant, and that defendant cannot establish same by any other witness. That the same is true. Wherefore the defendant asks the court to continue this case until such time as the said witness can be secured to testify in this cause.

“Wiee Rose.

“Sworn to and subscribed before me this 9th day of January, 1911.

“W. R. ColeiNS, District Clerk.55

This motion for a continuance was overruled by the trial court, and the appellant was forced into trial, to which action of the court appellant excepted.

There are three reasons why the court did not err in overruling this application for a continuance. The absent witness resided in the town of Colbert, 15 miles from the county seat where court was held. The application for a continuance was overruled on the morning of January 10th, but the record shows that the examination of witnesses did not begin until the morning of January 11th. If the appellant had really desired the presence of A. L. Cordell, as soon as his absence was discovered, appellant should have applied for an attachment for said witness returnable instanter and the presence of the witness could have been obtained in a few hours, or the fact could have been made to appear by legal evidence that the attendance of the witness could not be obtained. Appellant should have exhausted his legal remedies to secure the absent witness before applying .for a continuance. As appellant did not take this course, we are inclined to the opinion that what he wanted was a continuance, and not the testimony of the absent witness. It is nowhere stated in the record that the testimony expected to be proven by this absent witness could not be obtained from some other source. A continuance should not be granted merely for the purpose of obtaining cumulative evidence. There is no pretense that the appellant was drunk when he testified in court, and did not know his testi-money was false when given. We therefore hold that the court did not err in overruling the application for a continuance. Although an application for continuance may be good upon its face, yet, if upon trial it appears that the testimony for which it was sought could not have affected the result of the trial, a conviction will not be reversed upon the ground that the continuance was refused.

Third. The indictment in this case contains 12 counts. Count No. 1 alleges that this defendant was sworn as a witness in the case of State of Oklahoma v. R. Coleman, and thereafter testified, in substance, that on the night H. N. Roberts came upon R. Coleman, Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby, he, the said Will Rose, did not see any money that night. It is further alleged that said statement testified to by this defendant in said case at said time was false, and that the said statement was then and there material to the issue in said cause.

Count No. 2 alleges that the said defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon R. Coleman, Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby, in a storm cellar near Colbert, he, the said Will Rose, was not gambling. It is further alleged that said statement so testified to by this defendant was false and that said statement was then and there material to the issue in said case.

Count No. 3 alleges that this defendant was sworn, as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon R. Coleman, Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George' Hinson, and Ed Goosby in a storm cellar at or near Colbert, he, the said Will Rose, did not see R. Coleman gambling. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in .said cause.

Count No. 4 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night when H. N. Roberts came upon R. Coleman, Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby in a storm cellar at or near Colbert, Vernon Badgett was not gambling. It is further alleged that said statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 5 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosb}' in a storm cellar at or near Colbert, Vernon Bell was not gambling. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 6 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby in a storm cellar at or near Colbert, Ed Goosby was not gambling. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 7 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon the said Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby at or near Colbert, the said Vernon Bell was not shooting dice. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 8 alleges that this defendant was sworn as a witness in said cartse, and thereafter testified, in substance, that on the night H. N. Roberts came upon Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby in a storm cellar at or near Colbert, Walter Rogers was not shooting dice. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 9 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon the said Puck Coleman, Oscar Askew, Will Rose, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby, in a storm cellar at or near Colbert, Puck Coleman was not shooting dice. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 10 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon R. Coleman. Oscar Askew, Will Rose, Walter Rogers, Vernon, Bell, Vernon Badgett, George Hinson, and Ed Goosby in a storm cellar at or near Colbert, George Hinson was not shooting dice. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause.

Count No. 11 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that on the night H. N. Roberts came upon R. Coleman, Oscar Askew, Will Rose, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby in a storm cellar at or near Colbert, none of the boys 'in said cellar were shooting dice for money while he, the said Will Rose, was in said cellar on the night H. N. Robei'ts came upon the said R. Coleman, Oscar Askew, Will Rose, Vernon Bell, Vernon Badgett, George Hinson, and Ed Goosby. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant to be false, and was then and there material to the issues in said cause..

Count No. 12 alleges that this defendant was sworn as a witness in said cause, and thereafter testified, in substance, that -on the night H. N. Roberts came upon R. Coleman, Will Rose, Oscar Askew, Walter Rogers, Vernon Bell, Vernon Badgett, George Hinson, aiid Ed Goosby in a storm cellar at or near Colbert, he did not see anybody win or lose money at .any gambling game in the presence of said R. Coleman in said storm cellar. It is further alleged that such statement so testified to by this defendant was false, and was then and there known to this defendant, to be false, and was then and there material to the issues in said cause. ' .

Upon the trial of this case the court, among other things, instructed the jury as follows:

“(2) You are further instructed that an unqualified statement of a matter which the witness does not know to be true is equivalent to a statement of that which the witness knows to be false, if such statement be made willfully, and is intended that it should be received as a statement of what was true in fact. * *

“(8) You are further instructed that the fact that the defendant was or might have been intoxicated at the time it is alleged the defendant was in the storm cellar on the night of the alleged crap game may be considered by you for the purpose of determining whether at the time the defendant testified in the case of the State of Oklahoma against R. Coleman he testified to what he really believed to be the truth about what he saw in the storm cellar on said night, and, if you have a reasonable doubt as to whether the defendant testified to the statement alleged in the indictment willfully and corruptly, then you should acquit the defendant. However, if you believe beyond a reasonable doubt that upon the trial of the case of the State of Oklahoma against R. Coleman, the defendant, Will Rose, having been sworn as alleged in the indictment, then and there under oath, testified to the statements alleged in one or more of the counts in the indictment herein, and that such statement or statements or either or any of them were false, and that he made such statement or statements willfully and corruptly, knowing his statements to be false, or if said defendant at the time of the alleged crap game was in such a state of intoxication that at the time he testified he did not know that the statements which he made in giving his testimony were true or false, if- you believe beyond a reasonable doubt that said defendant testified willfully and corruptly and falsely to the statements, in the indictment not knowing whether said statement or statements or either or any of them were true or false with the intent that said statements should be received as a statement of what was true in fact, then you should convict the defendant.

"(9) You are instructed that a criminal and corrupt intent is a vital element in the crime of perjury. And therefore it is incumbent upon the state to prove beyond a reasonable doubt that the defendant made the false statement, if you find they were-false, willfully — that is with the knowledge on the part of the defendant that he did not know that he was telling the truth— and with the intent that his statement should be received as true in fact, and in this connection the term 'willfully’ is used to mean a purpose or intent to commit the act.”

Appellant excepted to instruction No. 2 upon the following grounds:

“The defendant excepts to instruction No. 2, wherein the court submits the law relative to the making of an unqualified statement or a matter which the witness does not know to be true, and as being equivalent to a statement of that which the witness knows to be false, for the reason that under the indictment and issues in this case and the evidence submitted, the instruction is not proper.”

And also to instruction No. 8, as follows:

“The defendant excepts to the latter part of the instruction No. 8, wherein the court instructs the jury that if said defendant at the time of the alleged crap game was in such a state of intoxication that at the time he testified he did not know that the statement which' he made in giving his testimony was true or false, ‘if you believe beyond a reasonable doubt that said defendant testified willfully and corruptly and falsely to the statements in the indictment, not believing that said statements or either or any of them were true or false, if he intended that said statement should be received as a statement of what was true in fact, then you should convict the defendant.’ Defendant excepts to this part of the instruction, for the reason that it submits to the jury an issue not raised by the evidence as charged under the indictment, would not be proper.”

In their brief counsel for appellant say:

“It is our contention that, in that the indictment in this case charges that the defendant ‘falsely, corruptly, knowingly, willfully and maliciously testified falsely,’ and did not charge that the defendant made ‘an unqualified statement of that which he did not know to be true, the court erred in refusing to give to the jury requested instructions.”

As we understand their position, the contention is that instruction No. 2 is erroneous because the crime of perjury may be committed in two ways: First, by falsely, corruptly, knowingly, willfully, and maliciously testifying falsely; and, second, by making an unqualified statement of that which the witness did not know to be true, and that, because the indictment in this case only charged a willful and corrupt swearing with knowledge of the falsity of the testimony, a conviction could not be had of making willful and unqualified statements of that which the witness did not know to be true. Counsel, however, have not cited a single authority in support of this position. Knowing as we do the learning, ability, and zeal of counsel for appellant, their failure to cite any authority in support of their contention is strongly suggestive of the idea that no such authority exists. Without disrespect to counsel, we think their contention is absolutely wanting in merit. Our statute upon the subject of perjury is as follows:

“Section 2176. Perjury defined. — Every person who, having taken an oath that he will testify, declare, depose or certify truly before any competent. tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.

“Sec. 2177. Oath defined. — The term ‘oath’ as used in the last section, includes an affirmation, and every other mode of attesting the truth of that which is stated, which is authorized by law.

“Sec. 2178. Oath of office. — So much of an oath of office as relates to the future performance of official duties is not such an oath as is intended by the previous sections.”

“Sec. 2180. Incompetency of witness no defense. — It is no defense to a prosecution for perjury that the accused was not competent to give the testimony, deposition or certificate of which falsehood is alleged. It is sufficient that he actually was required to give such testimony or made such deposition or certificate.

“Sec. 2181. Materiality of testimony not necessary. — It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not in fact affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.

“Sec. 2182. Making depositions. — The making of a deposition or certificate is deemed to be complete, within the provisions of this article, from teh time when it is delivered by the accused to any other persons with the intent that it be uttered or published as true.

“Sec. 2183. False statement. — An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.”

Perjury is defined in section 2176. Section 2183 is no part of the definition of perjury. It does not create or define a separate offense, but only prescribes a rule of evidence whereby the crime of perjury might be established. The same contention on principle was raised by counsel in the case of Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849. That was a case of larceny, but the principle involved is the same as in this case, and in that case, in a very able opinion by Judge Richardson, this court held that upon an information drawn under section 2591, Comp. Laws 1909, defining larceny generally, a conviction may be held upon proof, made as provided in section 2592, that the accused found lost property under circumstances which gave him means of inquiry as to the owner thereof, and that he appropriated the same to his own use without making a reasonable effort to discover the owner and restore the property; the latter section not creating or defining a separate offense, but only prescribing a rule of evidence. We think that the reasoning in the case of Berry et al. v. State is conclusive of this case. Judge Richardson there said:

“Snyder’s Comp. Laws of Okla. defines ‘larceny’ as follows: Section 2591. Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.’ ‘Sec. 2592. One who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person, who is not entitled thereto, without having first made such effort to find the owner and restore the property to him as the circumstances render reasonable and just, is guilty of larceny.’ It is urged that each of these sections defines a different offense; and that upon an information drawn under section 2591, charging that the defendant did take, steal, and carry away certain personal property of another with the intent to convert the same to his own use and to deprive such other thereof, a conviction cannot be had upon proof that the defendant found lost property under circumstances which gave him means of inquiry as to the true owner, and appropriated the same to his own use without first making an effort to find the owner and restore the property; the contention being that, where such offense is intended to be charged, the information should specifically set forth the facts enumerated in the latter section. With this contention we cannot agree. We think that section 2591 is the statutory definition of larceny, and that section 2592 only prescribes a state of facts, which, being proved, establishes the offense as defined by the previous section; that it merely enunciates one rule of evidence, a compliance with which proves the crime as previously 'defined. To> constitute larceny, there must be a taking of personal property. It must be done by fraud or stealth, and with a larcenous intent; and these requisites are all present when the facts enumerated in section 2592 exist. The taking is shown when it is proved that the defendant found lost property, and took it into his possession. If the evidence shows that he knew to whom the property belonged, or that the circumstances gave him means of inquiry as to the true owner, and he made no reasonable effort to find the owner and restore the property, but, on the other hand, concealed the fact that he had found it, the taking is then deemed to have been done by stealth. And, when it is further shown that under such circumstances he appropriated the property to his own use or to the use of any other person not entitled thereto, his larcenous intent is established.”

This court has already practically decided the question now presented, in the case of Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383. Judge Doyle, in a well-considered opinion, speaking for the court, said:

“Section 2081, Wilson’s Rev. & Ann. St. 1903, which declares that 'an unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false,’ should be construed with section 2074, Wilson’s Rev. & Ann. St. 1903, which provides that: ‘Every person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states' any material matter which be knows to be false, is guilty of perjury.’ ”

And, after citing a number of authorities, Judge Doyle proceeds as follows:

“All of which hold in substance that one can be convicted of perjury only where the false testimony was given corruptly, with knowledge of its falsity, and that it is not enough that the defendant in a perjury prosecution testified positively to that which he did not know to be true.”

The distinctions made by Judge Doyle, and to which we still adhere, are clearly recognized and laid down in the instructions of the court in this case, because the jury were informed that they must believe beyond a reasonable doubt that the statements of appellant were willfully and corruptly false and made with the intent that said statements should be received by the jury as true before they could convict appellant, and paragraph 9 of the instructions of the court again repeated the same principle, and informed the jury that a criminal and corrupt intent was a vital element in the crime of perjury.

The Supreme Court of California has so construed these identical sections in People v. Buelna, 81 Cal. 135, 22 Pac. 396. The syllabus of that case is as follows:

“Section 485 of the Penal Code, declaring it larceny for one who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner to appropriate such property to his own use, etc., does not create a distinct kind of larceny, but declares a rule of evidence which, being fulfilled, constitutes the crime as defined in section 484 of the Penal Code; and it is proper to instruct the jury as to such rule of evidence under an information drawn under section 484 defining larceny in general, if the evidence tends to show an unlawful appropriation by the finder of lost property as described in section 485.”

In many states where the statutes only define larceny generally as is done in section 2591, Comp. Raws 1909, and where there appears to be no such statute as. section 2592, it is nevertheless held that proof of the facts enumerated in the latter section establishes the crime as defined by the general statute. Flemister v. State, 121 Ga. 146, 48 S. E. 910; State v. Weston, 9 Conn. 527, 25 Am. Dec. 46; People v. McGarren, 17 Wend. (N. Y.) 460; Brooks v. State, 35 Ohio St. 46. And in State v. Boyd, 36 Minn. 538, 32 N. W. 780, it is stated that this was true at common law. Minnesota, however, had a statute similar to section 2592. And in all the cases in the boqks involving the larceny of lost property we have found none in which the opinion or statement of facts indicated that the indictment alleged the finding, etc., and none holding that such allegations were necessary. See cases cited above; also, United States v. Pearl, Fed. Cas. No. 16,022, 5 Cranch C. C. 392; State v. Bolander, 71 Iowa, 706, 29 N. W. 602; State v. Hayes, 98 Iowa, 619, 67 N. W. 673, 37 L. R. A. 116, 60 Am. St. Rep. 219; Comm. v. Titus, 116 Mass. 42, 17 Am. Rep. 138.

The motion to direct a verdict of not guilty was properly overruled.

'What has been said with reference to paragraph 2 of the instructions given applies with equal force to the objections to paragraph 8 of the charge as given, and therefore need not be repeated.

Counsel requested a dumber of special instructions, but as they were all converse to those contained in the second and eighth paragraphs of the court’s charge, and as we hold that the instructions given are correct, it is not necessary to point out the errors contained in the instructions which were requested and refused by the court.

Fourth.. There is no contention on the part of counsel for appellant that the testimony given by him in the Coleman trial was true. In fact, this record discloses beyond peradventure of a doubt that it was absolutely false. There was but one question for the trial court to determine — that the defendant knew that it was false at the time he testified. Upon this question, also, there can be no doubt, because those who were with him in the storm cellar that night testify that he was not drunk; that he talked as rational as he ever did; that he was gambling there and knew what was going on and was in every respect rational so far as they were able to determine. This is the testimony, also, of the officers who saw him. The record discloses that at the time thi raid was made Rose was smart enough to remain in the storm cellar unobserved by the officers, and thereby escape arrest. So that it appears conclusively, not only from the testimony of the witnesses who saw him on that occasion, but from his actions and conduct, that he knew exactly whát he was doing, and was smart and adroit enough to escape arrest for the offense that he had committed.

Owing to the dangerous character of the offense of perjury and the frequency with which it is committed in the state of Oklahoma, and for the purpose of urging the officers of this state to be vigilant in the future in the prosecution of such cases, we will repeat here what we said with reference to perjury in the case of Coleman v. State, 6 Okla. Cr. 283, 118 Pac. 607, as follows:

"Next to the crime of seduction and rape, perjury is the most serious offense against the laws of the state, and the most infamous in its character that can be committed, and especially the kind of perjury for the commission of which appellant now stands convicted. We can have some respect for a man who for a reason or fancied wrong enters into a fair combat in which he takes the life of his adversary. We can even sympathize with an aged widowed mother or a devoted wife, sister, or daughter, who, through love for a son,. a husband, or brother, or a father, is driven to the commission of perjury to save such loved one from the hangman’s noose. We can understand how perjury in cases of this kind may not indicate an utter want of moral character, but we cannot find language strong enough to express our detestation of the crime for which appellant has been convicted. The smallness of the cause for which perjury is committed is a true indication of the moral depravity of the man who commits it. Thé fact that the jury did not give appellant the full limit of the law is the only thing about this case worthy of criticism. We think that the smaller the inducement for perjury the greater the punishment should be. The man who will commit perjury to shield a crap shooter or a bootlegger is a most dangerous man to society. The longer he can be locked up the better it will be for the interests of public justice. From the record which we have examined in bootlegging and gambling cases, we are impressed with the idea that this kind of offense is common in this state. In fact, it appears that these cases are largely schools for perjury. The county attorneys and judges and grand and petit juries of the state cannot be too diligent in bringing such parties to justice. There is too much of a disposition to look upon perjury in these cases as something to be expected, and as being of but small importance. Men who perjure themselves in these small cases will not hesitate, if an inducement is offered, to perjure themselves in order that they may cheat the gallows of its due or consign innocence to a felon’s cell, or rob widows and orphans of their property. Perjury attacks the integrity of all legal proceedings, and thereby endangers the institutions of our country; and we again call on county attorneys and all other officers to exercise the utmost diligence in prosecuting these offenders, with the assurance that, when they are fairly tried and proven-to be guilty, this court will not hesitate to do its full duty in each case. No class of offenders should be more vigorously and relentlessly prosecuted or severely punished. County attorneys are requested to urge these views upon juries in all perjury prosecutions. Let all unite in a determined effort to make perjury dangerous even in the smallest cases. When this is done, there will be more respect for law, and not so many miscarriages of justice in our courts.”

We find no error in the record. The evidence clearly establishes the guilt of appellant. The judgment of the lower court is therefore in all things affirmed.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    CHARLES INKLEBARGER et al. v. STATE.
    No. A-1164.
    Opinion Filed November 18, 1912.
    (127 Pac. 707.)
    1. EVIDENCE — Circumstantial Evidence. In cases of circumstantial evidence, the court should instruct the jury that the facts necessary to establish the conclusion of the guilt of the defendant must be proven by competent evidence and. beyond a reasonable doubt; and they must not only be consistent with the guilt of the defendant, but they must exclude, to a moral certainty, every other reasonable hypothesis except that of guilt. That is all that the law requires in such cases.
    2. TRIAL — Larceny—Instructions—Evidence to Support. Where a defendant is charged with grand larceny, and there is no evidence introduced upon the trial which tends to reduce the offense to petit larceny, it is improper for the court to instruct the jury on petit larceny.
    3. SAME — Alibi—Instructions—Necessity of Bequest. Where a defendant is upon trial, and the defense of an alibi is relied upon, and the defendant does not request a special instruction upon this subject, and does not except to the action of the court in not charging on alibi, a conviction will not be reversed where such instruction is not given, unless it clearly appears from the record that the defendant was injured thereby.
    4. SAME — Seasonable Doubt. Where a defendant is upon trial for grand larceny, and the court instructs the jury that every ingredient thereof must be proven to their satisfaction, beyond a reasonable doubt, or they should acquit the defendant, the instruction will be sufficient. If the defendant desires that the doctrine of .reasonable doubt should be applied to a special issue in the ease, he should request an instruction to that effect.
    5. TBIAL — Verdict — Specifying Decree. Where a defendant is charged with grand larceny, and there is no evidence introduced tending to reduce the offense to petit larceny, and the court submits no instruction upon this subject, a verdict of the jury finding the defendant guilty as charged will be sufficient, without specifying the degree of larceny of which he is convicted.
    6. APPEAL — Harmless Error. Where a defendant is upon trial for grand larceny of a number of different articles of the value of more than $20, incompetent evidence admitted as to the value of some of the articles alleged to have been stolen will not be reversible error, when there is no question but that the other articles alleged to have been stolen exceed in value the sum of $20. The reception of such incompetent evidence is clearly harmless error.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; J. T. Johnson, Judge.

    Charles Inklebarger and Frank B rid well were convicted of grand larceny, and appeal.
    Affirmed.
    Abraham Blott testified that he was engaged in the butcher, meat market, and restaurant business in Sterling, Comanche county, Okla., during the year 1910; that on the 15th day of February, 1910, witness had six cattle hides in a barrel setting between his house and the barn on his premises in Sterling; that he missed these hides on the morning of the said 15th day of February, 1910, witness had six cattle hides in a barrel sitting between his marks, etc. Witness also missed a saddle, which was taken from his barn. Witness sent out postal cards with a description of the stolen hides and saddle on them. In reply to these postal cards, Mr. R. W. Caldwell of Lawton notified witness that he had such hides. Witness went to Lawton and identified the hides in Caldwell’s possession as being the hides stolen from witness. 'The defendants were arrested, charged with the theft of the hides. Witness was present when they were brought before Mr. Wilson, the man from whom Mr. Caldwell had purchased the hides. Witness never recovered his saddle. The hides and saddle were taken without the consent of witness and against his will. The market value of the hides was $25 at the time they were stolen. The saddle was worth $25 at the time it was stolen.
    C. L. Wilson testified: That he resided at Hulen; kept a general store there. That on the 18th day of February, 1910, he saw the appellants. Witness purchased five hides from the appellants at that time. They appeared to have been cured in a barrel. Appellants told witness that the hides were taken from cattle that had frozen to death in a stock field. The appellants had a saddle in the wagon, as well as the hides. Witness after-wards sold these hides to Mr. Caldwell, in Lawton. Witness afterwards saw the appellants and identified them positively as the parties who sold the hides in question to witness.
    Mrs. Mildred Wilson testified that she was the wife of the preceding witness. She identified the appellants as the persons ■who had sold the hides in question to her husband. She further testified that the hides were afterwards sent by Mr. Wilson to Lawton.
    R. W. Caldwell testified that he was in the hide and fur business in the town of Lawton, Comanche county, Okla.; that in the latter part of February, 1910, he received a notice from Mr. Blott with reference to some hides stolen from him; that witness paid Mr. Wilson $20.30 for the five hides purchased from him; that Blott came to witness’ place of business and identified the hides.
    Fred.Weicher testified that he was acquainted with Mr. Abraham Blott; that witness lived about a mile from Sterling; that witness sold some hides to Mr. Blott; that witness knew the animals the hides came off of. Witness afterwards saw these hides and identified them at the hide house of Mr. Caldwell in Lawton. They were the same hides witness had sold Mr. Blott. Witness identified the hides by their color, and also by the figure 8 on them, which was on the left hip.
    Pete Weicher, a brother of the preceding witness,' testified substantially to the same facts that were testified to by his brother.
    C. B. Inklebarger, one of the appellants, testified in his own behalf: That he resided near Baird post office, in Comanche county, Okla. Pie had lived there about eight months. On the 15th day of February, 1910, witness was at home, about 24 miles from Sterling. Witness had been at Sterling early in February. He drove down in a wagon with his father. That from this time until he was arrested witness did not go to Sterling, but was at home working on the farm.
    Appellant Frank Bridwell testified in his own behalf: That he lived at Sterling, Okla. Witness had nothing to do with the theft of the hides in question. Witness does not remember where he was at that timé. Witness did not sell the hides in question to Mr. Wilson. Witness never had anything to do with the hides belonging to Mr. Blott.
    M. L. Inklebarger testified that one of the appellants was his son; that witness was a farmer; that the appellant Charles Inkle-barger was at home working on the farm on the 15th day of February, 1910.

      Robert Inklebarger testified that he resided 22 miles from Sterling. During the entire week in which the hides were stolen, appellant Charles Inklebarger was at home working on the farm. If he left at any time, witness did not know it.
    John Fryman testified that he resided at Sterling; that he did not see Charles Inklebarger and Frank Bridwell around Sterling on the day the hides belonging to Mr. Blott were stolen.
    Toney Fryman testified: That he resided at Sterling; knew both of the appellants. That he did not see either of the appellants at Sterling on the day the hides were stolen.
    Jim Inklebarger testified that he resided at Sterling; that after Charles Inklebarger left Sterling in the early part of February he did riot return until after he was arrested; that Charles Inklebarger left Sterling between the 1st and 10th of February, but could not say just when he left.
    Ed Fryman testified for appellants: That he resided at Sterling; was acquainted witlj both of appellants. That witness was in Sterling at the time the Blott hides were stolen. That witness did not see either of appellants there at that time.

      B. M. Parmenter, for appellants.

      Charles West, Atty. Gen., and Smith C. Matson and C. J. Davenport„ Asst. Attys. Gen., for the State.
   FURMAN, P. J.

(after stating the facts as above.) First. The first question presented in the brief of counsel for appellants is that the court erred in instructing the jury as follows:

“You are instructed that the state relies for a conviction in this case upon circumstantial evidence; and, in order to warrant a conviction of crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt. All the facts (that is, the necessary facts to the conclusion) must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. But in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable, the guilt of the defendant. They must exclude, to a moral certainty, every other reasonable hypothesis.”

Counsel for appellants did not request an additional instruction upon the subject of circumstantial evidence; neither have they cited any authority in their brief in support of their attack upon the instruction given, but content themselves with saying:

“We submit that under this instruction, so far as applicable to the circumstantial evidence, the jury could have found for the state, if the conclusion was satisfactory to them. This court has so often sustained the rule that the guilt must be proven beyond a reasonable doubt, before there can be a conviction, it would be superfluous to cite authorities along that line.”

We cannot agree with counsel for appellants .that this instruction authorized the jury to convict the appellants, if the conclusion of guilt was satisfactory to them; for the instruction directly tells them in express language that each fact necessary to the conclusion of guilt must be proven by competent evidence and beyond a reasonable doubt, and thath.ll the facts in evidence, taken together, must exclude, to a moral certainty, every other reasonable hypothesis except that of guilt.

Substantially the same instruction as that complained of was approved by Mr. Justice Winslow of the Supreme Court of Wisconsin in the case of Colbert v. State, 125 Wis. 423, 104 N. W. 61. The instruction there approved was in the following language:

“All the evidence produced by the state is circumstantial. There is no direct or positive evidence that the defendant committed the crime charged. And to warrant a conviction on circumstantial evidence each fact necessary to the conclusion sought to be established must be proven by competent evidence, beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction. They must be such as to generate and justify full belief, according to the standard rule of certainty. It is not sufficient that they coincide with and render probable the guilt of the accused; but they must exclude, every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence; but the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt.”

We feel that much in the instruction given, and also in the instruction approved by Mr. Justice Winslow, might be omitted. In order to warrant a conviction upon circumstantial evidence, all that the law requires is that the circumstances proven to be true must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence. This is fully embraced in the instruction given. At the same time we do not regard this instruction as a model.

Second. In their brief counsel next contend that the court erred in not instructing the jury with reference to petit larceny. Section 2594, Comp. Laws 1909, is as follows:

“Grand larceny is larceny committed in either of the following cases: 1. When the"property taken is of value exceeding twenty dollars. 2. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in other cases is petit larceny.”

In the case now before us, there was no conflict in the evidence. Even if it be conceded that the state was limited to the five hides which were sold by appellants to the state’s witness Wilson, and the other property stolen was excluded entirely from consideration, it was proven by the testimony of Mr. Caldwell that he paid $20.30 for these five hides; while the witness Blott testified that the six hides stolen were of the value of $25, and that the saddle was of the value of $25. So that this is either a case of grand larceny or nothing. Had a single witness testified that the property stolen was worth $20 or less, then it would have been the duty of the court to charge upon petit larceny; but it is never the duty of the court to charge upon a lesser degree of an offense than that charged, unless there is evidence in the record from which the jury could reasonably find the defendant guilty of such lesser degree. An instruction should never be given upon any question of law which is not applicable to the evidence. See Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387. The court therefore did not err in refusing the charge on petit larceny. The verdict of the jury is responsive to the information and the testimony. There is no word of evidence in the record which would justify a verdict for petit larceny.

Third. In their brief counsel for appellants complain of the action of the court in giving the following instruction:

“You are instructed that if you find and believe from the evidence, beyond a reasonable 'doubt, that the defendants, Charles Inklebarger and Frank Bridwell, did, at the time and place stated in the information, willfully, unlawfully, and feloniously, by stealth, steal, take, and carry away, without the consent and against the will of the true owner, the property described in the information, and you further find that the property was of value exceeding $20, and that the same was the personal property of A. Blott, and you further find that the defendants took the same, as charged in the information, with the unlawful and felonious intent of them, the said Charles Inklebarger and Frank Bridwell, to deprive the true owner of the value therof, and to appropriate the same to their own use and benefit, and you so find, you will return your veidict, finding the defendants guilty as charged in the information.”

When this case was upon trial, and after the county attorney had stated the case for the state, counsel for appellants, when called upon to state his defense, addressed the court and jury as follows:

“If the court please, gentlemen of the jury, on the part of the defense, we deny that we took the hides or saddle, or had anything to do with them, and that an attempt to settle it on these boys is a question of mistaken identity. That is about the line of the defense.”

Fie did say one single word about an alibi. After the evidence was through, counsel did not request any instruction upon the law of alibi, neither did he except to the action of the court in not charging more fully upon this subject.

In the case of Beatty v. State, 5 Okla. Cr. 107, 113 Pac. 237, this court said:

“Upon the trial of this cause, the court repeatedly instructed the jury that they could not convict the defendant, unless they were satisfied from the testimony, beyond a reasonable doubt, that he was guilty, and they were again instructed that if they entertained a reasonable doubt as to whether or not the defendant was guilty they must acquit him; but the defendant complains that the court did not instruct the jury upon the presumption of innocence. No exception was reserved to the instructions of the court upon this ground, and no special instruction was requested of the court upon the presumption of innocence. In the case of Cochran v. State, 4 Okla. Cr. 390, 111 Pac. 978, we held that, under these circumstances, a conviction would not be reversed because the court had failed to charge the j ury upon the presumption of innocence. Section 6857, Comp. Laws Okla. 1909, is as follows: ‘In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.’ According to this statute, it is the duty of the court to instruct the jury upon all matters of law which it thinks necessary for their information in giving their verdict, and, if the court omits to charge the jury upon any question of law which counsel for defendant thinks necessary for their information, it is their duty to request such instruction; and when they fail to do this a conviction will not be reversed, unless it appears from the record that the defendant was injured by the failure of the trial court to give a proper instruction upon the law of the case. The only purpose of an instruction upon the presumption of innocence is to inform the jury that, in the first instance, the burden is on the state to prove by legal evidence that the defendant is guilty, and that, if the state does not prove the defendant guilty by legal evidence, the defendant is entitled to be acquitted. This idea was contained in separate paragraphs in the charge of the court, first, where the court told', the jury that they must be satisfied of the defendant’s guilt by legal evidence, beyond a reasonable doubt, before they could convict him; in the second place, where the court informed the jury that if they entertained a reasonable doubt from the evidence of the guilt of the defendant they must acquit him.”

Upon an examination of the record, we do not believe that appellants were injured by; the failure of the court to give a special instruction upon the subject of alibi. The appellant Bridwell did not introduce any evidence of an alibi. He testified:

“Q. Frank, do you know where you were on or about the 15th of February, Tuesday? A. No, sir; I couldn’t swear where I was. Q. Were you there at Sterling? A. I don’t know. I may have been at Sterling, and I may not have been.”

The failure of the court to charge as to the defense of an alibi could not affect appellant Bridwell, because he' interposed no such defense.

C. B. Inklebarger, one of the appellants, testified:

“Q. Where do you live? A. Two miles south of Baird post office. * * * Q. Where were you on or about the 15th day of February, 1910?. A. The 15th day? Q. Yes, sir; Tuesday. A. I was there on the place. Q. Where you were living? A. Yes, sir. Q. How far was that from Sterling? A. It is 24 miles.”

This appellant introduced as witness to support his defense of an alibi his father, M. L. Inklebarger, his brother Robert, his brother Jim, and Toney, Ed, and John Fryman. The latter three witnesses testified they lived in Sterling; and did not see appellant at the time of the larceny of the hides. The evidence is incompetent, immaterial, and proves nothing. The fact that they did not see appellant there does not prove he was not there. The Inlclebargers testified that appellant was down on the farm, 22 or 24 miles south, before, on, and after February 15th. They do not agree as to when he went there, or when he went to Sterling thereafter. There is no evidence that appellant could not have been at the farm on the day of February 15th, and at the prosecuting witness’ house that night, or during the night the property was stolen. The distance was 22 or 24 miles, and appellant could have been at both places within a day’s time. The evidence •showing defendants’ guilt is so clear that a jury could not, upon their oaths, return a verdict different from the verdict of guilty returned. The appellants were identified; the property was identified; the court instructed the jury upon circumstantial evidence, presumption of innocence, and reasonable doubt. The appellants requested no instruction upon the defense of alibi, and in this case they ought not to be permitted to contend that the court erred. Under these conditions the question of alibi was sufficiently covered by the instruction given.

In State v. Shroyer, 104 Mo. 441, 16 S. W. 286, 24 Am. St. Rep. 344, the court said:

“(5) Complaint is made that the court did not instruct the jury 'on the effect of the evidence tending to prove an alibi.’ Without going into a consideration of the scope of that provision of the statute imposing upon trial courts the duty of instructing the jury upon all questions of law ‘which are necessary for their information in giving their verdict,’ we deem it sufficient to say that the jury needed no information; and it was not necessary to instruct them that, if defendant was not present at Murphy’s house on the occasion of the assault, he was not guilty of making the assault. The general instruction given to the jury, that if they had a,, reasonable doubt of defendant’s guilt they should acquit him, sufficiently covered the law arising on the ‘effect of the evidence tending to prove an alibi.’ No error being found in the record, the judgment is affirmed. All concur.”

In Schultz v. State, 88 Neb. 613, 618, 130 N. W. 105, loc. cit. 107 (34 L. R. A. [N. S.] 243), the Supreme Court of Nebraska, speaking as to this question, said:

“The court did not err in refusing to give the instructions requested concerning an alibi. The accused admits being in the immediate neighborhood of the mill at the time it was burglarized. The court, at the request of the accused, instructed the jury that ‘to warrant a conviction each fact necessary to establish the guilt of the accused must be proven by competent evidence, beyond a reasonable doubt; and the facts and circumstances proven should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of guilt.’ The court also minutely defined all the elements of the crime of burglary, and told the jury that the accused was presumed to be innocent until proven guilty beyond all reasonable doubt; that if the state failed to thus establish a single element of the crime they must acquit; and that it was their duty, if possible, to reconcile the testimony with the presumption of innocence. The jury, therefore, assisted, as they were, by the instructions, must have understood that if the accused was in or near the station closet at the time Heidulk saw the burglar within the mill Schultz could not be guilty; and, further, that, if they had any reasonable doubt that Heidulk could or did accurately identify the accused as the guilty person they should acquit. There was therefore no prejudicial error in not giving the instruction requested. State v. Shroyer, 104 Mo. 441, 16 S. W. 286, 24 Am. St. Rep. 344.”

There are many cases holding that, where the defendant interposed as a defense an alibi, the court must instruct the jury thereon, whether asked or not; yet in this case the instructions given to the jury fairly present the questions involved, and the error, if any, in not giving such an instruction, when not requested by the defendant, is harmless; and, as the court repeatedly holds, before a conviction will be set aside, it must appear from the record that a defendant has been deprived of some substantial right. If the court fails to instruct the jury upon a question of law which counsel for defendant thinks necessary for their information, it is their duty to request such instruction; and when they fail to do so a conviction will not be reversed, unless it appears from the record that the defendant was injured.

Fourth. It is next contended that the court erred in giving the following instruction:

“You are instructed that if you find and believe, beyond a reasonable doubt, that the defendants, Charles Inklebarger and Frank Bridwell, did, at the time and place stated in the information, willfully, unlawfully, and feloniously, by stealth, steal, take, and carry away, without the consent and against the will of the true owner, the property described, in the information, and you further find that the property was of value exceeding $30, and that the same was the personal property of A. Blott, and you further find that the defendants took the same, as charged in the information, with the unlawful and felonious intent of them, the said Charles Inklebarger and Frank Bridwell, to deprive the true owner of the value thereof, and to appropriate the same to their own use and benefit, and you so find, you will return your verdict, finding the defendants guilty as charged in the information.”

It is contended that this instruction did not require the jury to find, beyond a reasonable doubt, that the property was taken with the “felonious intent to deprive the owners thereof.” This objection is too technical, in view of the decisions of this court, for the reason that the instructions must be considered as a whole. In other instructions the court charged the jury that:

“(1) The defendants are presumed to be innocent of the crime charged against them in said information, and of every ingredient thereof, until the contrary is shown to the satisfaction of your minds, beyond a reasonable doubt. (2) Further, that each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt.”

The court defined grand larceny, and stated the facts and ingredients necessary to be proved. The instructions, taken as a whole, clearly instructed the jury that they must find, beyond a reasonable doubt, the facts and ingredients of the charge. Nothing further was necessary. The defendant is not permitted to pick out a certain instruction and ask the court to pass upon its correctness separate and apart from the instructions as a whole. The contention is without merit. See Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224.

Fifth. It is next contended that the court erred in accepting the verdict, because, it is contended, the verdict did not state the value of the property stolen. The verdict reads:

“We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the defendants, Charles Inklebarger and Frank Bridwell, guilty as charged in the information.”

The defendants did not object to the court’s receiving the verdict. They remained silent. Had they supposed the verdict was irregular, they should have taken some steps at the time it was returned to ascertain and correct the error. But the verdict was not irregular or improper. The defendants were charged with grand larceny. The court instructed the jury that grand larceny is larceny of property of a value exceeding $20. There was no evidence whatsoever that the property stolen (whether they found the defendants stole the saddle and six hides, or the six hides, or five hides) was less than $20. The offense was grand larceny. The value of the property was immaterial, so long as its value exceeded $20.

“While the value of the goods taken determines the grade of the offense, and the value must be alleged in an indictment for grand larceny and proved in order to convict, it is usually held unnecessary for the jury in its verdict to find the value; a general verdict of guilty being a finding that the goods taken were of the value alleged.” (25 Cyc. 157).

See, also, State v. James County, 117 La. 419, 41 South. 702; State v. Kelliher, 32 Or. 240, 50 Pac. 532; People v. Peres, 87 Cal. 122, 25 Pac. 262; People v. Price, 67 Cal. 350, 7 Pac. 745; People v. Whitely, 64 Cal. 211, 27 Pac. 1104; Cargill v. State, 76 Ark. 550, 90 S. W. 618; Keller v. Davis, Warden of Penitentiary, 69 Neb. 494, 95 N. W. 1028.

Sixth. It is further contended that the court erred in permitting the witness Blott to answer this question :

“Q. Do you know what was the market value of the saddle? A. Yes, sir. (Objected to by the defendants, for the reason that it is incompetent, irrelevant, and immaterial, no proper foundation laid for the asking of the question, and the witness not shown himself qualified ,to testify. Overruled. Exceptions.) A. It was worth $25, the saddle was. (Here defendants move to strike the answer as not being responsive to the question, which was by the court overruled.) Q. What is the market value of the saddle at the time? Just answer what the market value is. (Objected to b}'' defendants, for the reason it is repetition. Objection by the court sustained.)”

By this objection, in the form it was put, defendants conceded that the answer of the witness as to the value of the saddle was the market value. The witness had stated that he was. 'acquainted with the market value of the saddle at the time it was taken. Doubtless counsel for the state, on defendant’s objection that the answer as to the value was not responsive to the question, desired to put the matter of value clearly before the jury by a direct question, but on putting the question was met with the objection that it was repetition. The ruling was correct. But, though the court may have erred in admitting the answer as to the value of the saddle, it was immaterial and harmless, for the reason that the value of the hides was shown to be in excess of $20, and the evidence clearly established the guilt of the defendants. Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214.

The jury were the exclusive judges of the credibility of the witnesses, and, having accepted the testimony of the witnesses for the state as true, this settles all conflicts in the evidence.

We find no material error in the record. The judgment of the lower court is therefore affirmed.

DOYLE, J., concurs; ARMSTRONG, J., absent, and not participating.