text:
    CARL THOMAS v. STATE.
    No. A-10596.
    Sept. 11, 1946.
    (172 P. 2d 651.)

      Guy L. Andrews, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Tom G. Haile, Co. Atty., of Mc-Alester, for defendant in error.
   BAREFOOT, J.

Defendant, Carl Thomas, was charged in the county court of Pittsburg county with the unlawful possession of intoxicating liquor, to wit: 6 pints of bonded, tax-paid whisky. He waived a jury and was tried, convicted and sentenced to pay a fine of $75 and to serve 30 days in the county jail.

Defendant’s rooming house was searched by officers on the 4th day of November, 1943, and six pints of tax-paid whisky were found stored therein. At the time of search defendant admitted possession of the liquor. At the trial of the case, after the above facts were proven, defendant declined to testify or to introduce any evidence. He was found guilty by the court and punishment assessed as above stated. From this judgment and sentence he has appealed.

As stated in defendant’s brief, his contention for a reversal of this case is:

“So, the question before us is whether under the law of the State of Oklahoma as it existed in November, 1943, it was prima facie evidence of any intention to violate the law when a man has within his home three-fourths (%) of a gallon of liquor.”

It is contended that the Oklahoma Statutes of 1941, certified on December 31, 1941, and in accordance with the provisions of an act of the Legislature, Laws 1941, p. 457, 75 O.S.1941 § 101 et seq., enacted and put into force as the law of this state, an old statute known as the “gallon statute,” which this court had prior thereto held unconstitutional and to have been repealed. The statute referred to was enacted in 1910-11, and appears as § 6985, C.O.S.1921, §'§ 2625 and 2627, O.S.1931, and Tit. 37 O.S. 1941 §§31 and 32, and was as follows:

“It shall be unlawful for any person to have or keep in excess of one quart of spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; * * * upon, in, or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room, whether such liquor be intended for the personal use of the person so having and keeping the same or not; * * * Provided, further, that this section shall not be construed, in any way, to legalize the keeping of such liquors for an unlawful purpose. A violation of any provision of this section shall be a misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) nor more than five hundred ($500.00) dollars and by imprisonment for not less than thirty (30) days nor more than six (6) months.
“It is hereby enacted, in order to suppress the unlawful practice of selling, bartering, giving away and otherwise furnishing liquors, the sale of which is prohibited by this act, from private residences, that it shall be unlawful for any person within this state to have or keep at, in, or about his place of residence, at any one time, more than one (1) gallon of spirituous, or one (1) gallon of vinous * * * liquors, or any imitation thereof, or substitute therefor; nor more than one cask of malt liquors, or any imitation thereof, or substitute therefor, nor more than one cask of any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per-centum of alcohol measured by volume, and which is capable of being used as a beverage, * * *. A violation of any provision of this section shall be a misdemeanor and shall be punished by a fine of not' less than fifty dollars ($50.00), nor more than five hundred dollars ($500.00), and imprisonment of not less than thirty days nor more than six months.”

The above statute was amended by the Legislature in 1933, chap. 153, sec. 3, Tit. 37 O.S. 1941 § 82, and is as follows:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contains more than three and two-tenths (3.2%) per cent of alcohol, measured by weight and which is capable of being used as a beverage, * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; * * * or the keeping in excess of one qnart of spirituous, or one quart of vinous, or more than one quart of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage, * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount.”

This statute was enacted after the same had been submitted to the voters of this state by the Legislature, when it was adopted by the people at an election held on July 11, 1933. Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671.

The history of the “gallon” and “quart” statutes, with a review of the decisions of this court, is fully given in the case of Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757. It is unnecessary to here quote fully from that case. It may be noted that the court cites and quotes from the case of Ex parte Wilson, 6 Okla. Cr. 451, 119 P. 596, which held unconstitutional a “quart” law which prohibited the keeping in excess of one quart of intoxicating liquor in one’s possession at his place of business, regardless of the fact that it was not for an unlawful purpose. It was there stated [63 Okla. Cr. 445, 77 P. 2d 763]:

“The constitutionality of section 5 was not passed upon by the court in this case, but the two sections of the statute being analogous it is clear that the court would have held section 5 unconstitutional for the same reason that section 4 was held unconstitutional.”

Section 5 prohibited the possession of in excess of one gallon of intoxicating liquor at one’s residence, and made the possession thereof an offense regardless of the purpose of possession or intent to sell, convey or give away.

It will be noted that Tit. 37, O. S. 1941 §§ 31 and 32, above quoted, provides that the possession in excess of one “gallon” of intoxicating liquor makes one guilty of illegal possession regardless of the intent with which it may be had. There is no provision in this statute as to the possession of one gallon being “prima facie” evidence of guilt, as appears in the “quart” statute above quoted. Tit. 37 O. S. 1941 § 82.

The contention that the “gallon” law was re-enacted and is the law at the present time is based upon a provision of an act of the Eighteenth Legislature, Laws 1941, p. 457, and Oklahoma Statutes 1941, page 116, which provides: .

“Whereas, the manuscript of Oklahoma Statutes 1941 was presented to the Justices of the Supreme Court of Oklahoma for their examination and approval as to form and as to compliance with the requirements of said Act, * * *
“Now, Therefore, the Justices of the Supreme Court of Oklahoma, as required by said Act, do hereby certify that Oklahoma Statutes 1941, as contained in this Volume, is an accurate, complete and correct compilation and codification of the general and permanent laws of the State of Oklahoma.”

This certificate of the Supreme Court is based upon sections 7 and 8 of House Bill 519 of the 1941 Legislature, 75 O. S. 1941 §§ 107, 108, which is as follows:

“Section 7. Before finally printing said Statutes, the West Publishing Company shall present their manuscript of said Statutes to the Justices of the Supreme Court of the State of Oklahoma, and shall secure the approval of the Justices of the Supreme Court as to form and as to compliance with the provisions of this Act; provided, further, that the Justices of the Supreme Court shall also, after approying said manuscript, certify said Statutes as to accuracy, completeness and correctness.
“Section 8. The Oklahoma Statutes, 1941, prepared by West Publishing Company, and in one (1) volume as above provided for, after the same shall have been approved by the Justices of the Supreme Court of the State of Oklahoma as hereinabove provided, shall, as provided in Section 9 be, and are hereby, adopted as the general and public laws of the State of Oklahoma, and the official Statutes of the State of Oklahoma, as to all laws therein contained.”

In addition to the above sections of the Act of 1941, it might be well to call attention to the fact that the 1941 statutes were adopted as the “Code and Revised Statutes of the State of Oklahoma,” by Chapter 4, Title 80, page 253, Oklahoma Session Laws 1943, effective April 12, 1943.

But it must be remembered that the codifiers of said statute were instructed by section 2 of the authorizing statute, to wit: Chapter 4, Title 75, page 457, Oklahoma Session Laws 1941, 75 O.S. 1941 § 102, to not mclude in their compilation “laws * * * held unconstitutional by the highest courts ”

Section 2 is as follows:

“Said Statutes shall contain the Magna Carta, Declaration of Independence, the Constitution of the United States with its amendments, the Organic Act of Oklahoma, the Enabling Act of Oklahoma, the Constitution of the State of Oklahoma with its Schedule and amendments, and all laws of the State of Oklahoma of a general and permanent nature now in force, including all laws and amendments of a general and permanent nature passed by tbe Regular Session of the Eighteenth Legislature, 1941, with all repealed laws and those held unconstitutional by the highest courts eliminated ”

The “gallon” statute referred to above had been held unconstitutional by this court prior to the codification of the 1941 statutes. Wilson v. State, supra, and Morse v. State, supra. There was no reason for the codifiers to include this section in the statutes of 1941, as it could not be effective if placed therein. It was probably placed there inadvertently. The section had been clearly superseded by the Act of 1933, chap. 153, § 3, Tit. 37 O.S. 1941 § 82, which had been voted on and approved by the voters of this state on July 11, 1933.

Corpus Juris, Vol. 59, § 490, p. 893, gives the rule as follows:

“Where a commissioner authorized to codify existing laws under an appointment which expressly withheld from him authority to include any statute declared invalid by the supreme court, inadvertently included a statute so declared invalid, adoption by the code prepared by the commissioner does not have the effect of validating the statute inadvertently included.” Citing State v. American Bank, 75 Mont. 369, 243 P. 1093.

We have examined the case of Atlas Life Ins. Co. v. Rose, 196 Okla. 592, 166 P. 2d 1011, decided by the Supreme Court of this state on February 19, 1946, and think there is a distinction to be drawn between that case and this one, inasmuch as the statute there referred to had been declared unconstitutional by reason of a defective title only, and not the law itself.

Defendant in the instant case was charged with a violation of Tit. 37 O. S. 1941 § 82, known as the “quart” law. The evidence revealed that he had in his possession in excess of one quart of intoxicating liquor. No evideuce was introduced by defendant. This was prima facie evidence that the possession of the intoxicating liquor was for the purpose of sale, barter or giving away, and was for an unlawful purpose. Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430; Sparks v. State, 77 Okla. Cr, 428, 142 P. 2d 377; Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371; Pierce v. State, 64 Okla. Cr. 251, 78 P. 2d 1073; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671.

For the reasons above stated, the judgment and sentence of the county court of Pittsburg county is affirmed.

JONES, P. J., concurs. DOYLE, J., not partieipating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    LUTHER BARTLEY ISAAC v. STATE.
    No. A-10560.
    Sept. 18, 1946.
    (172 P. 2d 806.)

      Counts & Jones, of McAlester, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Tom G. Haile, Co. Atty., Pittsburg County, of McAlester, for defendant in error.
   BAREFOOT, J.

Defendant, Luther Bartley Isaac, was charged in the district court of Pittsburg county with the crime of murder. He was tried, convicted of manslaughter in the first degree, and his punishment assessed at four years in the State Penitentiary, and he has appealed.

Defendant in his brief presents but one question as error. It is contended that the court erred in failing to instruct the jury on manslaughter in the second degree, and on assault and battery. This necessitates a short statement of the facts as revealed by the record.

Defendant, Luther Bartley Isaac, was charged with having murdered James F. Isaac Coonce in Pittsburg county on the 20th day of October, 1943 between 8 and 9 o’clock in the evening. The killing occurred about one mile south of McAlester, and near the home of Joe Moore.

On the afternoon of October 20, 1943, the defendant, Jim Brown and the deceased met at a beer tavern in the city of McAlester. They drank several glasses of beer, and then went to another beer tavern, where they met Buster Moore, whom they did not know. It was agreed that the party of four should go to the nearby town of Krebs in Pittsburg county, in defendant’s car, it being understood that Buster Moore should do the driving, as defendant did not have proper driving license.

They arrived at Krebs some time after 6 o’clock, and while there visited two beer taverns, and admitted that they drank beer at both places. About 8 ’clock they decided to return to McAlester. Up to the time they left Krebs, there had been no difficulty, and no harsh words had been spoken by any of the party. On the way back to McAlester, the defendant and deceased began to argue and quarrel with reference to the defndant having drunk out of the glass of beer of deceased. It is unnecessary to go into detail as to what was said. Defendant testified that deceased had a knife in his hand and threatened to kill him or cut him.

When the automobile reached Thirteenth street, in McAlester, Jim Brown jumped.out of the car, while it was running, and went to his home. The other three parties proceeded to the home of Joe Moore, a brother of Buster Moore, about one mile south of McAlester, where Buster lived. The testimony of Buster Moore and the defendant is that just before arriving there, the defendant and deceased, who had continued their quarreling, got out of the automobile and began to fight. This fight continued for some time, and when it was over Buster Moore went into the house of his brother, Joe Moore, and told him that a man had been killed or injured. Joe Moore and a younger brother went to Mc-Alester and informed the officers, and Bill Alexander, sheriff of Pittsburg county, and Deputies Clint Gladden and Bob Pollack immediately went to the scene of the difficulty. When they arrived, they saw deceased lying in the road, and the defendant standing nearby, and as they got out of the automobile, the defendant knelt down and was holding the head of deceased.

When questioned by the officers, the defendant answered that a man had been hurt. When asked who had hurt him, defendant answered: “I don’t know, but a tall, slim fellow, I think he was from Texas, — had on a taxicab driver’s cap or one similar.” They asked where he was, and defendant stated that he “had left.”

Defendant testified in his own behalf, and admitted that he and deceased were fighting, and that they were the only ones so engaged. He also admitted that he kicked the deceased, but testified that deceased was striking at him and that he thought he had a knife, and was trying to cut him, and that his actions were in self-defense. The defendant admitted that he did not see either Moore or Brown at the time of the fight, and did not know where they were; and that neither of them participated in the fight.

The officers who went to the scene found the deceased lying on the west side of the pavement. It showed that the body had been dragged across the road. A pool of blood was near the place from where the body had been removed. The deceased died soon after being taken to the hospital, as a result of his injuries.

The doctors and the undertaker who examined the body testified that the deceased had a fracture involving the macilari bone on the right at the lower middle angle of the eye with the depression of this bone below the eye, and the fracture extended through the center front of the eye socket forming the front of the skull, and that the bone was depressed toward the mouth. They testified that it was caused, in their opinions, from a heavy instrument or exceedingly hard blow. One of the doctors testified: “It must have been an instrument. I couldn’t conceive of anything else — or some kind of weapon.”

An examination and search of the premises by the officers on the night of the killing and the next day failed to disclose any instrument of any kind used in the killing. It was the claim of defendant that he only struck deceased with his fist, although he admitted kicking him with his feet. Both Buster Moore and Jim Brown testified for the state, and as above stated. Charges were filed against these parties, but they were used as witnesses, and the charges against them were not pressed.

Evidence was offered by the state to show that the deceased had a crippled hand and leg. Others testifying for defendant stated they had not observed these deformities.

Defendant cites and principally relies upon the case of Palmer v. State, 78 Okla. Cr. 220, 146 P.2d 592, as authority for the reversal of this case. Also, the case of Johnson v. State, 59 Okla. Cr. 283, 58 P.2d 156; Mead v. State, 65 Okla. Cr. 86, 83 P.2d 404; Miles v. State, 41 Okla. Cr. 283, 273 P. 284, and Moore v. State, 48 Okla. Cr. 106, 289 P. 788.

The facts in the Palmer case are somewhat similar to the facts in the instant case; and in each of the cases above cited the cause of the death of deceased was the result of a fight, and the killing of deceased by being struck by defendant with his fists. In most of these cases the court included in his instructions a charge upon manslaughter in the second degree and an instruction upon assault and battery, which was treated as an included offense under the charge of murder or manslaughter set forth in the information.

In the Palmer case, the defendant was charged with manslaughter in the first degree, as the result of a fight between defendant and deceased and in which the deceased was killed by being knocked down by defendant striking him with his fist, and his head hitting the pavement. There was some evidence that deceased had stumbled and' fallen. The court instructed the jury upon manslaughter in the first degree, but did not instruct upon manslaughter in the second degree, and assault and battery. We held in that case that the court erred in failing to submit to the jury an instruction upon manslaughter in the second degree and assault and battery. And that this was reversible error, notwithstanding the fact that defendant had failed to request the giving of such instructions. This was based upon the principle that a fair and impartial trial should be given defendant, and that for this to be true, it was the duty of the court to properly instruct the jury as to the law of the case; and that all material issues, including the contention of defendant, should be submitted for the jury’s determination.

In the Johnson case, deceased was killed by reason of being struck by defendant with his fist while engaged in a fight. He was charged with murder. He pleaded self-defense. The court instructed the jury upon murder and manslaughter in the first and second degrees, as included offenses. The case was reversed by reason of giving certain instructions and the failure to give certain requested instructions. But it will be noted that the court did give an instruction on manslaughter in the second degree.

In the Mead case, defendant was charged with murder, by reason of having struck deceased with his fist in a fight, and deceased having died as a result of being so struck. The court instructed the jury upon the issue of murder, manslaughter in the first and second degrees. Defendant was convicted of manslaughter in the second degree. The court held that the issues of murder and manslaughter in the first degree should not have been submitted to the jury as the evidence did not so justify. The court said [65 Okla. Cr. 86, 83 P.2d 409]:

“Under the law and the evidence in this case, the issues to be determined by the jury were manslaughter in the second degree, or whether the alleged homicide was excusable under the provisions of § 2235, O. S. 1931, Tit. 21 O. S. 1941 § 731, supra, and where the evidence justifies it, as in this case, the court should have instructed the jury on the issue of assault and battery.”

The case was reversed and remanded.

In the Miles case, supra, the charge was assault with intent to kill, by reason of shooting with a pistol, yet the court instructed the jury upon assault and battery as an included offense. The second .paragraph of the syllabus in that case reads:

“The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.”

And in the Moore case, supra, it is stated in the second paragraph of the syllabus:

“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and,' if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.”

In that case deceased was struck by defendant with his fist, and was also kicked by defendant. The court instructed the jury upon the issues of murder, manslaughter in the first and second degrees, and upon excusable and justifiable homicide.

The instruction of the court in this case are excellently worded and show deep thought in their preparation in so far as they present the issue of murder and manslaughter in the first degree, and the plea of self-defense as presented by the evidence. But it is our opinion from a reading of the record in this case, and the cases that have heretofore been decided by this court, that the issue of manslaughter in the second degree, and especially the issue of assault and battery, should have been submitted to the jury for their determination. It was the contention of defendant that only his fists were used in the fight with deceased. One of the two doctors who testified for the state from an examination of an X-ray picture taken by him of deceased, testified:

“Q. From your experience as a physician, could you state what caused that fracture? A. Well, I couldn’t say what caused it, but it was evidently made from a heavy instrument, or exceedingly heavy blow.”

The second physician testified that he had examined the deceased and as to the wounds thereon, and that in his opinion one wound had been caused by a blunt instrument of some kind, and another by a sharp instrument. But the only eyewitness to the affair did not see any instrument of any kind. None was found by the officers at or near the place of difficulty, although they searched therefor both the night of the killing and the next day. The defendant testified that he only struck defendant with his fist, and no weapon of any kind was used by him. He also testified that he was only acting in self-defense as he thought he saw a knife in the hand of deceased.

In the case of Pritchett v. State, 79 Okla. Cr. 401, 355 P.2d 551, 557, it is said:

“We do not feel justified in modifying the judgment and sentence. The punishment for manslaughter in the second degree runs from a fine and jail sentence to a maximum of four years in the penitentiary. If the defendant is retried on that charge and should be found guilty, we think it best that a jury should decide the punishment to be given after hearing all the evidence presented. Of course if the defendant is found not guilty, there will be no punishment.”

For the failure to submit all of the issues by proper instructions, as above stated, the judgment of the district court of Pittsburg county is reversed, and the case remanded for a new trial.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    LLOYD SHEEHAN v. STATE.
    No. A-10621.
    Sept. 18, 1946.
    (172 P. 2d 809.)

      Miskovsky & Miskovsky, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

Lloyd Sheehan was charged by information filed in the district court of Stephens county jointly with R. D. Mooneyhan, David Jones and Elmer Petty with the crime of burglary in the second degree; a severance was granted, the defendant Sheehan was tried, found guilty and sentenced to serve the minimum term of two years imprisonment in the State Penitentiary, and has appealed.

We have heretofore affirmed .the sentence which was given the codefendant, David Jones. Jones v. State, 81 Okla. Cr. 127, 181 P.2d 89.

Counsel for defendant present the proposition that the information is defective in that it does not charge the unlawful and felonious intent required for burglary in the second degree.

The information in this case charged a violation of the provisions of 21 O.S.1941 § 1435, which reads:

“Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

Counsel for defendant, in support of this proposition, state that the intent required in the statute is either (a) with intent to steal therein, or (b) with intent to commit any felony. It is then pointed out that the information charged the defendant Sheehan and his co-defendants with breaking and entering the building in question with the unlawful intent “to commit the crime of larceny therein”; that the crime of larceny is a much broader term than the word “steal.” That the charge of burglary in the second degree must be based upon the common-law crime of stealing or upon the statutory felony of grand larceny, and that where the crime of larceny is alleged to be committed, the failure to state the value of the goods taken so as to show grand larceny renders the information fatally defective, citing Sullivan v. State, 7 Okla. Cr. 307, 123 P. 569.

Any trespass involving the taking of personal property, accompanied with an intent to deprive another thereof, is larceny; but stealing requires felonious intent on the part of the taker to deprive the owner thereof and to convert the same to the taker’s own use, specific proof of which is not necessary to support a conviction under the general larceny statute. Crowell v. State, 6 Okla. Cr. 148, 117 P. 883, cited in Sullivan v. State, supra.

In Sullivan v. State, supra [7 Okla. Cr. 307, 123 P. 570], it is further said:

“In Hughes v. Territory, 3 Okla. 28, 56 P. 708, the Supreme Court of Oklahoma Territory says: ‘The Legislature has modified the meaning of the word “larceny,” as used in the crimes act, so that the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. Therefore, while stealing and larceny at common law were synonymous terms, our statute has given to the word “larceny” a much broader meaning than it then had; while “steal” or “stealing” has not been defined by our statutes, and must be construed according to its common-law meaning.’ There has been no amendment to the> statute since this opinion.”

That part of the information to which this attack is directed reads:

“* * * with the .unlawful, felonious and burglarious intent then and there on the part of them, the said E. D. Mooneyhan, David Jones, Lloyd Sheehan and Elmer Petty, to commit the crime of larceny therein, to wit: With the unlawful and felonious intent to stealthily take, steal and carry away without the knowledge or consent and against the will of the said E. E. McCaw, manager or any agent of said corporation, the personal property therein contained and the said defendants did take, steal and carry away six (6) cases of beer under the control of the said Ice Service Company, a corporation and the said E. E. McCaw, manager, with the unlawful intent to deprive the said lee Service Company, a corporation, of the said property and to convert the same to the use and benefit of them, the said E. D. Mooneyhan, David Jones, Lloyd Sheehan and Elmer Petty, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

At the time the defendant was arraigned in district court, a demurrer was interposed to the information which properly raised the issue which is now presented in defendant’s brief.

A study of the information shows that, although it alleges that defendant had the intent to commit larceny in the building, it proceeded to say that the defendant bad tbe “unlawful and felonious intent to take, steal, and carry away without the knowledge or consent and against the will” of the owner certain personal property “* * * with the unlawful intent to deprive the said company of said property and convert the same to their own use and benefit.”

The allegations in the latter part of said information are sufficient to comply with the rules set forth in Sullivan v. State, supra, and the other cases relied upon by defendant. •

In addition to what we have hereinabove said, it is well to point out that the rule adopted in Sullivan v. State was later modified by this court in Wilson v. State, 50 Okla. Cr. 310, 297 P. 826, and Hames v. State, 54 Okla. Cr. 341, 20 P.2d 915, wherein it was held :

“An indictment which charges a breaking and entering with intent to commit larceny is sufficient.”

The second proposition presented in defendant’s brief is that “no proof of the value of the beer having been offered, the evidence is insufficient to support the verdict.” This contention is based on the argument presented in support of their first proposition hereinabove discussed, to wit: that the information should either allege the intent to steal or the intent to commit grand larceny, in which latter case the value of the goods taken should be set forth in the information.

In view of the fact that we have held against the contention of the defendant in connection with his first assignment of error, the same ruling will dispose of this proposition. Attention is further directed to the fact that it is not necessary in the crime of burglary to actually take any property. The offense is complete when the building is broken into and entered with specific intent to steal, and the actual stealing is but evidence of such intent. The intent to steal may be established by circumstantial evidence. The taking of the property was not a necessary ingredient of the offense charged. Wilson v. State, supra. It was not necessary then for the information to allege the value of the articles taken, and the proof of the state did not need to show such value.

It is next insisted that the evidence is wholly insufficient to sustain the conviction. The defendants were charged with breaking and entering a building of the Ice Service Company in the city of Duncan with the in-' tent to steal certain cases of beer which were stored in the building.

R. E. McCaw testified that he was the general manager of the Ice Service Company; that the company was engaged in the wholesale beer distributing business in Duncan and vicinity. They had several cases of beer stored in a building at 501 Main street in the city of Duncan; that on December 22, 1942, about 10 p. m., he was driving by the building and noticed a car on the north side of the building with the front end of the car about even with the front end of the building. That he stopped Ms automobile and asked if they wanted something; that they said, “Yes, a case of beer.” That the witness went around to the back of the car and opened up the turtle-back, thinking they would have a case of empties. Instead he found several cases of beer; that the parties in the car jumped out and said, “We will pay for this.” That he hollered to his wife to call the officers, and that some of the boys then ran. That Elmer Petty and three girls remained at the car. That he looked at the door about half-way back in the building and saw that it was broken; that when the boys first jumped out of the car they said they would carry the beer back in there, but when he yelled at his wife, three of the boys ran. That later the officers took the car to the police station and subsequently returned to him two more cases of beer which were inside of the automobile; that the beer which was in the boys’ automobile was the same kind which his company distributed; that he took an inventory of the stock and found that 26 cases were missing. The witness further testified that he had locked the place of business between 5 and 6 p. m. on that particular day; that when he returned at 10 p. m. and found the boys there, the building had been broken into; that the door was broken down and was hanging on the latches.

Opal Browder testified that she and two other girls went to the El Rancho night club at night on December 22, 1942; that they met defendant and codefendants at the night club; that they started back to Duncan in a Yellow Cab driven by Elmer Petty; that instead of taking the girls home, the boys had the cab drive to the corner of Fifth and Main streets in Duncan; that R. D. Mooneyhan got out of the car, but she did not see where he went; that he came back to the car and they drove around through the park and then went back a second time; that this time the cab parked on the northeast side of the building and backed into the driveway. That all of the boys, including the defendant Sheehan, got out of the car; that the boys went some place which she did not see; that she did not see the boys take any beer from the place of business, but that they went into the building ; that later she found out they were taking beer without paying for it. On cross-examination she testified that she saw the defendant Sheehan give R. D. Mooneyhan $5 while they were out driving to buy beer.

Christine Reeves testified that she was with Opal Browder at the El Rancho night club and later went with her and the boys to the place of business operated by the Ice Service Company about 10 p. m. That she saw them take beer from the building the first time they stopped, but did not remember where it was placed as it was a bad night and was raining; that they later drove around by the park and came back. She was sitting in the back seat when the boys got out the second time and did not see any beer taken out of the building and put in the turtleback. That while they were sitting there, the owner of the building drove up; that the defendant and the other boys, except Elmer Petty, ran. She and the other two girls and Petty were arrested and placed in jail overnight. On cross-examination she testified that she did not hear the defendant Sheehan say anything to Mooneyhan about giving him $5 to buy beer and did not see defendant give Mooneyhan any money to buy beer.

Pete Lawson, policeman, testified to making the call to the building at the request of McCaw. That he arrested Petty and three girls and took them to the police station; that after he arrived at the police station he found two or three boxes of beer in the automobile and took it back to McCaw. That he saw a door open, but did not notice whether it had been broken.

Ott Stewart testified that he was a policeman; that he examined the door at the Ice Service Company and found “It had been kicked in. The door had been broken.” That the defendant, together with his codefendants Mooneyhan and Jones, were arrested in Marlow that night, and he went to Marlow and brought the boys back to jail. That he had a talk with the defendant Sheehan in which Sheehan said that he was sorry they had done it; that he had been drinking and that was the cause of it.

At the close of the state’s case, the defendant moved for an instructed verdict of not guilty, which was over-' ruled. The defendant saved his exception and rested his case without putting on any evidence.

Before this court could interfere with the verdict of the jury on the ground that the evidence was insufficient to sustain the judgment of conviction, we must find that there is no competent evidence in the record upon which the verdict could be based.

The proof of the state showed the following, among other things: (1) ownership of the building in which beer was stored; (2) the breaking of a door to the building; (3) the finding of several cases of beer in possession of defendant and others which was the same brand of beer which was handled by the distributing company and stored in the building; (4) inventory showed several cases of beer belonging to the company were missing from the building; (5) the offer of defendants to pay for the beer; (6) the flight of defendant from the scene of the crime; (7) the arrest of defendant and his statement to the officer that he would not have done it if he had not been drinking. These are sufficient facts and circumstances to make a nrima facie case against the defendant of the crime of burglary in the second degree.

Lastly, it is contended that the court committed reversible error in not submitting the included offense of entering a building under circumstances not amounting to burglary, which is an offense under the statute, 21 O.S.1941 § 1438.

No request for such an instruction or for any special instruction was made on behalf of defendant and no exception was saved to the giving of any instruction.

Counsel for defendant cited the case of Ex parte Peoples, 69 Okla. Cr. 83, 100 P.2d 295, wherein this court held in disposing of a petition for a writ of habeas corpus that the district court of Oklahoma county was authorized to sentence an accused for the misdemeanor set forth under the statute (21 O.S.1941 § 1438), where the defendant had been originally charged with the crime of burglary in the second degree. 21 O.S.1941 § 1435.

The trial court in giving its instructions is only bound to give instructions on those issues of law which have a bearing on the evidence of the case. We have carefully examined the instructions which were given. They substantially covered the law applicable to the facts. Under the evidence of the state, direct and circumstantial, the door to the building was broken from its hinges and the defendant and the others removed several cases of beer therefrom. There was no evidence and no contention made to the trial court that there might have been an entry under circumstances not amounting to burglary, which would have brought the case within definition of the statute, 21 O.S.1941 § 1438, supra, which makes it a misdemeanor to enter a building, under circumstances not amounting to a burglary with certain intent, etc.

It has been held that the instructions of the court should be applicable to facts and evidence and to all proper deductions and interpretations thereof and not to questions not presented or covered by evidence. Dyer v. State, 58 Okla. Cr. 345, 53 P.2d 700; Mead v. State, 65 Okla. Cr. 86, 83 P.2d 404.

It has been further held that:

“Our statutes require a trial judge to instruct' the jury as to all matters of law which he thinks are necessary for their information in giving their verdict. If counsel for the defendant are of the opinion that additional instructions should be given to the jury, it' is their duty to reduce them to writing, submit them to the trial judge, and request that they be given to the jury. If they fail to do this, a conviction will not be reversed unless the court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some material question of law the defendant has been deprived of a substantial right.” Adams v. State, 62 Okla. Cr. 167, 70 P.2d 821, 822.

In this case, under the evidence of the state, the defendant was guilty of burglary or nothing. If evidence had been offered on behalf of the defendant attempting to justify or explain his possession of the beer or to show that there was a taking of the beer under circumstances not amounting to burglary, then the contention of defendant that the court should have given an instruction under the misdemeanor statute hereinabove cited would have been sustained. Under the evidence of this case, and especially in the absence of any request therefor, it was not fundamental error for the court to omit to give such an instruction.

The judgment of the district court of Stephens county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    JESS VAUGHN SAPP v. STATE.
    No. A-10680.
    Sept. 11, 1946.
    (172 P. 2d 643.)
    W. J. Hulsey, of McAlester, and Thad L. Klutts, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

Jess Vaughn Sapp was charged in the district court of Pittsburg county with the crime of rape in the first degree, was tried, convicted and sentenced to death and has appealed.

Two issues are presented in the brief of the defendant : First, the defendant was denied a fair trial because of misconduct of the county attorney. Second, the verdict was contrary to the law and the evidence.

Because this is a capital case in which the extreme penalty of the law is sought to be enforced, an extended summary of the evidence will be given.

The defendant was charged with the crime of rape committed by force on the person of one Dorothy Bradley, an eleven-year-old girl living at McAlester, Okla. The defendant, at the time of the alleged assault, was an inmate of the Oklahoma State Penitentiary at McAlester, serving a ten-year sentence upon a plea of guilty entered by him to a charge of rape. He was a trusty, with only three months remaining before the expiration of his sentence. On the day in question, he had been directed to paint certain property used by the health department in the city of McAlester, about five blocks from the place where the alleged attack occurred.

Dr. Richard A. Harkins testified that on March 3, 1945, he was called by the night nurse of the Albert Pike Hospital to come to the hospital for the purpose of making a physical examination of Dorothy Bradley. At the time of his examination, she was highly nervous. There was a bloody discharge from her female organs; the hymen was lacerated in three different places as if it had been penetrated. A male discharge was found inside of the vagina. The witness was of the definite opinion that she had been penetrated by a male organ somewhere from two to four hours prior to his examination.

Dorothy Bradley testified that she was eleven years old and in the fifth grade at school; that on Saturday afternoon, March 3, 1945, she and her two-year-old niece, Barbara Peterson, went to a show on Choctaw avenue in the city of McAlester; that they left the theater about 4 o’clock p. m. and started home; that they stopped at the grocery store and bought some potato chips and at a hamburger stand and got some hamburgers, and then continued on their way home. That as they crossed the railroad switch track on Main street a man stepped up behind her and put his hand over her mouth and told her to walk on toward an empty tin building; that he continued to hold his hand over her mouth and pushed her toward the building. That he pushed her into the building and lifted the little two-year-old niece into the building also; that the man was dressed in white painter’s overalls and had on a white cowboy hat; that he had a tool in Ms pocket which was used by painters or carpenters and had a knife in Ms hand. That when they got into the building the man threatened to kill her and also her little niece if she did not do exactly as he said. That he made her remove part of her clothes and lie down on the sand which was in the building; that after the man forced her to lie down on the sand, he unbuttoned his clothes, took out his privates and had sexual intercourse with her; that he hurt her very much. That all the time they were in there he was threatening to kill her and her two-year-old niece if she made an outcry or resisted; that they must have stayed in the building almost 30 minutes. That she was afraid of the man and was afraid he would kill her and the baby; that when she started to cry, he said, “I will kill you and her too if you don’t shut up.” That when the man got off her she was bleeding and in pain; that after the man had finished he told her to put her clothes on, and after she had done this she started home. The man who committed the assault followed her for some distance. As soon as he left, she stopped at some friends’ home and told them what occurred. That her mother worked at nighttime and her father in the daytime at the ammunition depot, and that neither of them was at home at that time, which was about 5 p. m. That when she arrived home, her sister was there and her father came in shortly; that she described the man who made the assault to the policemen, and her father and one of the officers took her to the hospital; that later that night the cops brought a man dressed in white overalls to her to see whether he was the man who attacked her, but she told them he was not. Subsequently they took her to the police station to see another man who was dressed in white overalls, but that he was not the man. That later the same evening they took her to the police station where she saw the defendant. At that time he was dressed in khaki clothes and had on a brown hat, but she identified him as the man who had raped her, but said he had changed clothes. On cross-examination the witness testified that when she first saw defendant she was positive of his face, but told the officers those were not the clothes he had worn at the assault and asked them to dress him in white so that she would be positive in her identification; that later she saw him again dressed in white overalls and she told the officers positively that defendant was the man who raped her. The blood-stained panties worn by the witness at the time of the assault were admitted into evidence without objection.

Ben Cooper testified that he was night chief of police at McAlester; that he was notified of the attack made on the little Bradley girl. That he went to her home and had her describe the man who made the assault; that he picked up Joe Lackey, who was dressed in white overalls, as a suspect, but that the little girl said he was not the man. That a fellow policeman arrested another man named Stephens shortly thereafter, who was dressed in white overalls, but Dorothy said he was not the man. That later that evening the defendant was brought to the police station. He had on khaki trousers, a white shirt and a black hat. When Dorothy Bradley saw him, she said, “That’s him.” That when Dorothy saw the defendant the first time she became nervous and excited; that later that evening they dressed defendant in white overalls and a white hat, and Dorothy Bradley said that he was the man who attacked her and that was the way he was dressed.

Mike Mayfield, policeman, testified to substantially the same facts as related by Ben Cooper.

Allen Dunlap testified that he worked at the penitentiary in charge of the trusty building; that on Saturday, March 3, 1945, the defendant, Jess Vaughn Sapp, checked out of the trusty building about 8 a. m. for the purpose of doing some painting and repair work on property belonging to the health department in the city of McAlester. That he checked back into the trusty building at 5:45 p. m.

Wiley Bradley, father of Dorothy Bradley, testified that he was working at the ammunition depot on March 3, 1945; that he arrived home between five and six o’clock; that Dorothy and his daughter, Mrs. Peterson, were there. That Dorothy related what had occurred and he notified the officers. His testimony from that point was substantially the same as that related by the policemen Cooper and Mayfield. The witness testified that as quickly as Dorothy saw the defendant at the police station she said, “Daddy, that is the man.”

Beatrice Peterson testified that she was the married sister of Dorothy Bradley, and that she was living with her parents at the time the attack was made on Dorothy. That Dorothy told her of the attack and told her how the man was dressed.

Molly Bradley, mother of Dorothy, testified that Dorothy was 11 years old at the time of the assault; that the witness left home about 4 p. m. to go to work and was not present at the time Dorothy came home after the assault.

H. C. McCloud, deputy warden of the State Penitentiary, testified that the chief of police called him the night of March 3, 1945, to inquire whether any painter from the penitentiary had been in the city of McAlester that day to work; that he was at the trusty building and found that the defendant had been in McAlester doing some painting. That he saw the defendant at the time, and he was dressed in a pair of khaki trousers, bare headed and in a little undershirt. That he took the defendant to town to the police station where Dorothy Bradley identified him as the man who had attacked her. That later that evening they dressed him in white painter’s overalls and white hat and took him back again.

Clint Gladden, deputy sheriff, testified to substantially the same facts as related by the policemen. In addition, he testified that at the time the defendant appeared at the police station with the white painter’s overalls and the white hat, the clothes were removed from him and turned over to the witness. He identified the various articles of clothing, and they were admitted in evidence. He testified that the underwear was in the same condition it was in at the time he removed it from the defendant, and that the blood stains which were then showing were on there at the time he removed the underwear from the defendant. The articles of elothing, including the underwear, were admitted in evidence without any objections on part of defendant. The witness further testified that the hat and jacket worn by the defendant at the time he was first brought to the police station were borrowed by defendant from an inmate named Neil, no. 29,112; that he took the clothes of defendant with the blood stains on them to the State Health Department for a test.

Roy Anders, chief of police, substantiated the testimony of the other officials. He further testified that after Dorothy Bradley had identified the defendant at the police station the first time, he took him back to the penitentiary and had him put on the white painter’s overalls; that he examined his underwear which he was wearing, and they were bloody; that he also examined his person and found blood on his privates.

L. C. Weed testified that he was a guard at the penitentiary on March 3, 1945, but had since been discharged. That he was in the city of McAlester on Saturday afternoon, March 3, 1945, and saw the defendant on South Main street. The defendant was dressed in a white suit of painter’s overalls. That he saw him in a beer joint sitting in a booth with a girl about 1 p. m.; 'that he drank a bottle of beer with him at the time. That he saw the defendant again about 20 minutes until 4 o’clock on the sidewalk near Cox’s place; that the defendant asked him, “What time is it,” and he told him it was 20 minutes until 4 o’clock. That he did not see the defendant again until about 11 p. m. when the officers brought him to his cell block and told him to put him up on “Sol.” He testified that before putting him in the cell, his clothing was removed; that the defendant’s person was bloody, and the defendant said that he had had a date with another woman that evening, and defendant said, “I sure am messed up.” That defendant did not have his underwear on at that time. On cross-examination the witness testified that the last time he saw defendant Saturday afternoon, he was with an Indian girl about 19 or 20 years old; that defendant had been drinking, but he did not consider him as drunk. That he saw defendant at various times Saturday afternoon, between 1 and 4 o’clock.

Mrs. Harry Myers testified that she was the wife of the sanitarian for the Health Department. That the defendant was supposed to have worked at the health department on March 3rd; that her husband had left word he would take defendant back to the penitentiary at 4 o’clock. That defendant came to her house at 5:15, and said he was ready for her husband to take him back to the trusty building, but she told defendant her husband was no,t there, and defendant left. That she lived about six blocks from Comanche and Main street where the attack is alleged to have occurred. That she knew defendant because he had performed work at various times for the Health Department where her husband worked; that defendant did not act or look peculiar or unusual when he came by her house, nor did he appear to be intoxicated. (It was later brought out that it was only five blocks from her home to where the crime occurred.)

This was the close of the state’s testimony.

On behalf of the defendant the following evidence was introduced:

Mrs. Lee Forrester testified that her husband worked at the State Penitentiary, and that she lived in one of the brick houses near the penitentiary; that she had seen defendant working in her house and knew him. That she saw him returning to‘the penitentiary about 5:30 p. m. on March 3, 1945, and did not notice anything unusual about him; that the defendant came by their house and stopped for a few minutes, so that she had a good opportunity to observe him.

The defendant testified in his own behalf that he was 44 years of age. That he had been sent to the penitentiary five times for various crimes committed by him since 1925. That he pleaded guilty to the crime of larceny from the person in 1925; that in 1927 he pleaded guilty and was given ten years for the crime of robbery; that in 1932, and again in 1936, he pleaded guilty to the crime of larceny of an automobile. That in 1940 he pleaded guilty and was given ten years for the crime of rape in the second degree. That at the time of the alleged attack on Dorothy Bradley he had been a trusty for four years and only lacked about three months having his sentence served. That on Saturday, March 3, 1945, he went into the city of MeAlester and painted on one of the buildings in the Health Department; that he had been painting there for about six weeks; that he quit work shortly before noon. That he saw the witness Weed at a little eat shop, and they drank a beer together about one p. m. That about 1:30 he went to another beer joint owned by a fellow called Edgar with Mr. Weed; that he stayed around Edgar’s bar with Weed until about 20 minutes till 4 o’clock. That he then walked up the street with a girl by the name of Maudie Bell Davis to get something to eat; that he went into a cafe and sat there talking with this girl until about five minutes after four. That he then went up to Stapp’s beer joint and bought some cigaretts and more beer; that about 4:15 he went back to Edgar’s bar; that he stayed in there drinking some beer and sitting with some girls until about five minutes to 5 o’clock, at which time he went over to Myers to get Mr. Myers to drive him back to the trusty building. That when he learned Mr. Myers was not at home, he took a cab and rode to the penitentiary; that he arrived at the penitentiary about 5:30 p. m. That he stopped at Forresters a few minutes without checking in at the trusty building. That after checking in at the trusty building he changed clothes and took a bath; that he had been wearing white painter’s overalls, but that he removed them and changed into khaki clothes when he took a bath. That he was arrested about 8 p. m. and brought down to the police station. Defendant further stated that when he took a bath he did not change underwear, but that the underwear he had on at the time of his arrest was the same underwear he had worn during the day. He further denied that there was blood on his underwear, but granted that there were stains from his work. On cross-examination the defendant said he did not know what it was on his underwear. He denied that he told the officers that it was blood, or that he had ever made a statement to the county attorney. He said that at the time of his arrest he had on a jacket and a black hat that he had borrowed from No. 29112. He further admitted on cross-examination that at the time he worked in the city of McAlester he had on the white overalls and the white hat in which he was dressed the second time he was brought before Dorothy Bradley for identification.

In rebuttal, the officers who had previously testified were recalled and testified that they had a conversation with defendant after his arrest, in which the defendant admitted that the stains on his clothing were blood, but an objection was sustained to questions asked as to what explanation the defendant made as to why the blood stains were on his clothing.

There is little merit to either of the propositions presented in defendant’s brief. The first contention that defendant was denied a fair trial due to certain conduct on the part of the county attorney pertains to statements which occurred during the voir dire examination of the jury. Most of the examination of the jurors is reported in the record and is quite lengthy. The record discloses that counsel for both the state and the defendant had examined many jurors, and some had been excused upon challenges for cause. After one of the jurors had been excused and another called for voir dire examination, the record discloses the following occurrence:

“Mr. Hulsey: I wanted to make this observation— I wanted to take one up at a time to avoid that — but the county attorney insists on going into it again, and that leaves a loop-hole— Mr. Haile: The defendant hasn’t failed to go into any loop-hole they have found either. Mr. Klutz: We object to that and ask the court to admonish the county attorney to refrain from that sort of conduct — Mr. Haile: You ask the court to admonish the county attorney, but don’t you go to doing it yourself. Mr. Klutz: We ask the court to admonish the county attorney to refrain from that sort of conduct in the presence of the jury. Mr. Haile: Well, don’t you go to admonishing the county attorney yourself. Court: Be seated, both of you. Mr. Klutz: We ask the court to admonish the county attorney— Court: The court declines to admonish — save your exception. Mr. Klutz: We except to the ruling of the court.”

The first assignment of error is directed solely to the alleged misconduct of the county attorney consisting of the remarks made by the county attorney and directed toward counsel for defense. It would have been much better if the county attorney had omitted the remarks which were made. We do not know from the record just what provocation the county attorney had to induce him to make such statements. We find too much bantering and bickering between opposing counsel in many of the cases which are brought before this court for review. Here the trial court did not allow the proceedings to get out of control, and there is nothing in the record to suggest that the remarks which were made by the county attorney had any effect upon the trial and conviction of the defendant. There is certainly nothing said that is prejudicial to the defendant. The fact that it is improper for opposing counsel to interrupt the orderly procedure of the trial by making side remarks at each other does not necessarily mean that such improper remarks may be used as a basis for a mistrial. Counsel apparently did not attach any particular significance to the matter as it was not mentioned in the motion for new trial. We can find no prejudicial error by reason of this occurrence.

The second assignment of error, that the evidence is insufficient to sustain the conviction, cannot be sustained. We have heretofore given a lengthy summary of the evidence introduced by both the state and defends ant. The corpus delecti was proved. The testimony of the little girl, corroborated by the evidence of the examining physician, is sufficient to show that the crime of rape was committed. The positive identification of the defendant by Dorothy Bradley, corroborated by the physical circumstances that the defendant was in the vicinity where the act was committed during all of the afternoon preceding the alleged attack; that he was dressed in white painter’s overalls; that when arrested a short time after the alleged attack occurred, he had changed his outer clothes but still wore his undergarments which were stained with fresh blood, and that also he had blood on his private organs, are sufficient facts and circumstances to conclusively show defendant’s, guilt.

His alibi depended solely upon his own testimony and was weak. By his own evidence he placed himself in the vicinity where the crime was committed. He had been drinking intoxicants during all of that afternoon. He admitted that the underwear offered in evidence by the state was worn by him at the time of his arrest. He denied that the stains on the underwear were blood stains, but would give no explanation as to when or where the stains got on his underwear, but suggested they might have gotten on there from some of the work he had been doing.

The most that can be said in defendant’s favor is that his testimony raised an issue of fact for the determination of the jury. Before this court would overturn the verdict of the jury, we are required to find that there is no substantial evidence in the record upon which the jury could base their verdict. As above shown, there is ample competent evidence to sustain the finding of guilt.

In the recent case of Todd v. State, 82 Okla. Cr. 424, 172 P.2d 345, in a prosecution for the crime of rape, it is stated:

“Case will not be reversed for insufficiency of evidence where testimony of the state is sufficient, if credited by jury, to show defendant’s guilt.”

See, also, Parks v. State, 18 Okla. Cr. 277, 194 P. 281; Birdwell v. State, 22 Okla. Cr. 184, 210 P. 558; Mills v. State. 73 Okla. Cr. 98, 118 P.2d 259; Morgan v. State, 72 Okla. Cr. 377, 116 P.2d 742; Harvey v. State, 73 Okla. Cr. 132, 118 P.2d 669.

One cannot read this record without becoming impressed with the certainty of the defendant’s guilt of this crime.

Although not mentioned in defendant’s brief, the question that has caused this court the deepest concern is whether under the law and the facts of this case the crime is such as justifies the imposition of the supreme penalty of death.

One can hardly realize that a prison system can become so lax that a person with the long prison record of the accused would be given the liberties which were accorded to the defendant. It is well to note that the record discloses that the guard who imbibed freely of intoxicants with defendant on the afternoon of the assault was quickly discharged. This outrageous crime has had the effect of focusing the attention of the Legislature of this state upon our prison conditions, and apparently a complete revision of the entire system of trustyship is being effected. (Report of Special House Investigating Committee with Recommendations for Reformation of Trusty System, 1945 House Journal 1443.) The system under which an habitual criminal would be at liberty to roam the streets at will without supervision or control is at least partly responsible for the perpetration of this terrible crime. It could probably be truthfully said that this crime was the inevitable result of a penal system that has developed through the years of permitting hardened criminals to be at liberty under the guise of a trusty-ship, free to roam the streets, drink intoxicants, and consort freely with prostitutes and street walkers.

This entire record has had the careful study and consideration of all three members of this court. As has been heretofore stated:

“No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing, even when it is taken by the law.” Moore v. State, 75 Okla. Cr. 222, 130 P.2d 114, 120.

The supreme penalty of death in the electric chair should not be imposed in this state except in the most aggravated cases, and then only when the law and evidence justify it.

If it had not been for the long prison record of defendant, this court would never have hesitated under the requirements of justice to have modified the sentence which was imposed. . However, in spite of the fact that the record shows him to be an habitual criminal, many law-abiding citizens for whom the defendant had worked as a trusty testified in his behalf that during the years they had observed him as a trusty that he was quiet, mannerly and a hard worker.

■ So far as the crime is concerned, we find no extenuating circumstances in defendant’s favor. He is a confirmed criminal and most certainly should never again be allowed outside the penitentiary to loosen his passion and lust upon innocent people. However, even though the defendant is an habitual criminal, his life should not be taken for this offense unless this court can say that his acts were of such an aggravated nature that the law demands that he be put to death as punishment for his misdeed. The defendant completed an act of sexual' intercourse with an eleven-year-old girl. She suffered no physical violence other than that resulting from the act itself. The young girl was not confined to her bed by reason of the attack. In fact, she was able to walk home unassisted. She stopped at a neighbor’s house and told two of her young girl friends of the crime. She stayed at the neighbor’s house for about 15 minutes and then walked on home and related to her sister what had occurred. Apparently there will be no permanent physical disability as a result of the experience which she had.

This court has recently sustained the imposition of the death penalty in a rape case, Norman v. State, 81 Okla. Cr. 78, 160 P. 2d 739. However, this case differs from Norman v. State, supra, in that in the latter case the defendant inflicted permanent physical injuries to the prosecutrix by hammering her over the head with a gun until her skull was fractured, by shooting her in the mouth which knocked out some of her teeth and split her tongue, and thereafter cutting her throat with a, knife and dragging her into a ditch of water to drown. That the prosecutrix lived to prosecute Norman was miraculous. Here the act was accomplished by means of threats. The prosecutrix was not choked, struck, or harmed in any way other than the harm that befell her as a result of the sexual act. Her outward appearance immediately after the act was unchanged from that before the act, although the doctor testified that at the time of his examination she was very nervous. Prior to his examination she had driven over the streets of McAlester with her father and a policeman in an endeavor to apprehend the perpetrator of the crime.

It is our conclusion that the facts surrounding this crime do not justify the assessing of the extreme penalty .of the law, and the judgment and sentence of death should be modified to provide that defendant, Jess Vaughn Sapp, be imprisoned in the State Penitentiary for life at hard labor. Surely this defendant, with a record of six convictions in felony cases, will never be allowed outside the. prison walls again, but that in reality he should be forced to spend the remainder of his days confined to the penitentiary at hard labor, and, if this is done, such punishment will be ample for the crime which was committed.

, It is therefore ordered that the judgment and sentence of the district court of Pittsburg county be modified by reducing the sentence imposed upon the defendant from that of death by electrocution to life imprisonment in the State Penitentiary at hard labor, and the judgment and sentence of Pittsburg county as thus modified is affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    LEAMON PARKS et al. v. STATE.
    No. A-10599.
    Sept. 26, 1946.
    (173 P. 2d 234.)
    J. S. Batson, of Marietta, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendants, Leamon Parks and Bertha McIntyre, were charged in the district court of Love county with the crime of assault with a dangerous weapon, were tried, convicted with the sentence left to the court; the trial court thereupon sentenced the defendants to each serve three years in the State Penitentiary, and they have appealed.

No appearance was made on behalf of the defendants at the time this case was assigned for oral argument, and no brief has been filed.

The evidence of the state shows that the defendant Bertha McIntyre, was a prostitute who was practicing her profession near a soldiers’ camp just across the Red River in Love county, Oklahoma.

On the night in question, the prosecuting witness, who was a private in the United States Army, came to a beer tavern with several other soldiers. There they met the defendant McIntyre. She sold one of the soldiers a quart of whisky and had sexual intercourse with three of them.

The prosecuting witness testified that he went out in the ear of the defendant and gave her $5, which was the price she charged him and the other soldiers for having sexual intercourse with her. He further testified that he was so drunk that he was unable to commit the act with her and demanded that she return him his money. That she refused to do so, and he grabbed her and attempted to take it from her. That she jerked loose from him and ran off yelling for the defendant Parks. That while she was gone, the prosecuting witness sat on the fender of her automobile; that she and Parks returned, and Parks, without any warning, struck him repeatedly in the face and on the arm with a sharp instrument which was either a knife or a razor.

The defendant McIntyre went back to the night spot and told some of the other soldiers that the prosecuting witness tried to “rush her” and she had. two of her boy friends cut him up.. She further said that' he was lying in a ditch about two miles up the road, and she hoped he was dead. The proof further showed that the prosecuting witness was in a very weak condition when his soldier friends rushed him to a hospital because of the loss of blood. That one of the cuts on his face was from his forehead to his chin.

We have examined the instructions, and they were applicable to the evidence.

. Since no brief has been filed on behalf of the defendants, and no assignment of error called to our attention, it is apparent that the appeal is without merit, and the judgment of conviction should be affirmed.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: JONES. P. J.

text:
    STATE v. BOB LESTER.
    No. A-10494.
    Sept. 26, 1946.
    (173 P. 2d 233.)
    Rutherford Brett, Co. Atty., and Gerald S. Tebbe, Asst. Co. Atty., both of Oklahoma City, for plaintiff in error.
    Jerome Sullivan, of Duncan, for defendant in error.
   JONES. P. J.

The defendant, Bob Lester, was charged in the district court of Carter county with perjury. Upon Ms arraignment before the district court, his counsel filed a demurrer to the information which was sustained, and the state appealed from the action of the .court sustaining the demurrer and discharging the defendant.

The case-made with petition in error attached was filed in this court on February 15, 1944. Many extensions of time were granted to the state to file their brief setting forth their contentions in regard to the questions involved in the appeal. The last extension was on June 13, 1945, at which time an extension of 30 days was given to file their brief. No further application for an extension of time to file brief has ever been made, and, although more than a year has elapsed, no brief has been filed, and when the cause was set for argument no appearance was made on behalf of the state. Because the appeal was by the state, this court has been liberal in granting extensions of time and in affording counsel who filed the appeal all the time sought in which to present their views. However, since more than a year has now elapsed since the last extension of time was granted, and nothing has been done on behalf of the appeal, we deem that the appeal has been abandoned and that the state does not desire to present any question of law for determination of this court.

If is therefore ordered that the appeal of the State of Oklahoma filed in this court in the above-entitled and numbered cause by the county attorney of Carter county be and the same is hereby dismissed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    CARL L. JANAWAY v. STATE.
    No. A-10715.
    Oct. 3, 1946.
    (173 P. 2d 222.)
    See, also, 83 Okla. Cr. 82, 173 P. 2d 226.
    Carl L. Janaway, of McAlester, in pro. per.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and R. O. Ingle, Co. Atty., of Sallisaw, for defendant in error.
   BAREFOOT, J.

Defendant, Carl Janaway, was convicted in the district court of Sequoyah county of the crime of assault with intent to kill, and by the court sentenced to serve a term of ten years in the State Penitentiary, and has appealed.

On August 22, 1945, this defendant filed in this court a petition for habeas corpus, seeking his release from the State Penitentiary where he was confined by reason of the judgment and sentence of the district court of Sequoyah county. This petition was filed by petitioner in person. His attention being called to the fact that his case could not be reviewed by this court on habeas corpus, except for want of jurisdiction of the lower court, and the time not having expired for the filing of an appeal of his case, he had the case-made prepared, and his appeal was filed within the time provided by law. The appeal and the petition for habeas corpus were submitted together by consent of the court, and are now here for proper determination by this court.

Defendant has apparently prepared and filed his own brief in both the habeas corpus proceeding and in the appeal. The same issue is involved in both proceedings.

The petition for habeas corpus is quite properly described in the brief of the Attorney General as a “wilderness of verbiage”; and the same may be said of the briefs he has filed. They consist of his words and phrases, improperly used and connected, and having no meaning or bearing upon the issues involved. They contain numerous contemptuous charges against the trial court, the attorneys for the state and his own attorney; and other officers of the court, which would if necessary be stricken from the record, and which, of course, have received no consideration from this court. If such statements had been made by a practicing attorney, proper action would be taken and punishment administered.

Defendant was charged by complaint filed in the office of the justice of the peace in Sequoyah county on March 17, 1937, with the crime of assault with intent to kill Raymond P. Drake, on September 11, 1936. He was not apprehended and arraigned on this charge until August 23, 1944, six and a half years after the crime was committed. In the meantime, it appears from the record that, defendant served time in the Arkansas penitentiary for burglary, grand larceny and kidnapping, and that he had escaped from that penitentiary; and that he also served time in the Federal penitentiary, a part of which was served at Alcatraz. On August 19, 1944, and just prior to his arraignment before the justice of the peace of Sequoyah county on August 23, 1944, the Governor of Arkansas released the defendant on an “indefinite furlough,” one of the conditions of which was that he should “not return to Arkansas during his lifetime.”

When arraigned in the justice of the peace court on August 23, 1944, defendant waived preliminary, and was bound over to the district court, and his bond fixed at $3,000. Information was filed against him in the district court on August 23, 1944, but he was not arraigned until October 4,1945. On that date counsel was appointed to represent him, he was served with a copy of the information and list of state’s witnesses, and entered a plea of not guilty. His case was set for trial on October 15, 1945, and he was tried on that date.

After the jury had been impaneled and was ready to receive the evidence, the following proceedings were had:

. “Mr. Agent (counsel for defendant) : Comes now the defendant and moves that the above case be dismissed for the reason that the defendant has not been given a speedy trial, as guaranteed by the statutes of Oklahoma- and of the United States — -The Court: You don’t want to argue that, do you? Mr. Agent: We will have to get the warrant before we can continue the motion to show when he was brought in here — the defendant was unlawfully arrested and brought to Sequoyah county, Oklahoma, on October 4th, — Mr. Ingle (County Attorney) : That was the date he was brought here. The Court: You are talking about the date of the original arrest? Mr. Agent: Yes. Unlawfully arrested on August 19th, 1944, and has repeatedly insisted and requested a trial of this case since his arrest and has been refused a trial. At that time the witnesses were available to the defendant, but are not available now and the defendant cannot properly present his defense to the charge. The Court : The record may show the motion is overruled and an exception. Mr. Ingle: We better make a record on it. The Court: All right. You better make your record then. Strike that. I haven’t acted on it yet. G. B. Taylor called as a witness for and on behalf of the State of Oklahoma, in response to the motion to dismiss, having been first duly sworn according to law, testified as follows, to wit: Direct Examination by Mr. Ingle. Q. What is your name? A. G. B. Taylor. Q. Where do you live, Mr. Táylor? A. Northwest of Sallisaw. Q. What official position do you have? A. Court clerk. Q. How long have you been court clerk? A. Since the 4th of January, in 1943. Q. You were court clerk then on August 19, 1944?' A; That is right. Q. Prom August of 1944 until this time has there been a term of court held? A. No, sir. Q. This is the first term of court that has been held? A. Yes, sir. Q. Since the 23rd day of August, 1944, until.this date? A. Yes, sir. Mr. Ingle: That is all. Cross-examination by Mr. Agent: Q. Mr. Taylor, I hand you here the jacket containing the court files in this case. Are all of the files in that case? A. I would have to check the record to see. I would have to check with the docket before I could tell you. Q. Will you do that, please, sir. (Whereupon the witness leaves the stand for a short period and again takes his place in the witness chair.) The Witness: They are all here except the subpoena. The subpoena isn’t here. Q. Do you find a warrant for the arrest of the defendant in this case, Mr. Taylor? A. It is not shown on the docket. Q. There is no warrant in the jacket in the case? A. No, sir. Q. Have you any evidence there of the arrest of this defendant? A. No, sir, I don’t have it. Mr. Agent: That is all. Mr. Ingle: I don’t care anything about asking him anything more. The Court: All right. Witness excused.”

The only question with which we are concerned in this case is whether petitioner was given a “speedy trial” as required by the Constitution and statutes of this state. He makes many references to the violation of different provisions of the Constitution of the United States which are without merit and unavailable. His remarks are contemptuous, and, as hereinbefore stated, if they had been made by an attorney representing a defendant, would not only be stricken, but the attorney would be properly punished. The record in this case does not show enough facts for a proper determination of the question as to whether defendant was given a speedy trial, as contemplated by the Constitution and statutes of this state. The state in its brief does not refer to the question of defendant not having been granted a speedy trial.

It was agreed in open court at the time of the hearing that petitioner was held in the State Penitentiary at McAlester after his arrest and from August 23, 1944, the time he was bound over to the district court, until October 15, 1945, the date his trial was begun, an intervening period of 14 months. As above stated, when the case was called for trial, the attorney for defendant in open court moved for a dismissal of the case for the reason that the defendant had not been given a speedy trial, and evidence was taken. The state placed the court clerk upon the stand, and he was the only witness. The entire proceedings Avith reference to this motion have herein-before been quoted in full. It only shows that no term of court was held in Sequoyah county from August 23, 1944, until October 15, 1945. Under the law the burden was upon the defendant to show that he had been confined during the intervening time, and that the delay had not been upon his application.

When this proof was made, it became the duty of the state to show “good cause” as to why the defendant had not been given a speedy trial. There was no effort made to show how many terms of court should have been held between the time petitioner was bound over and information filed against him, and the time he was tried. There are many facts Avhich under the law constitute “good cause,” for not bringing a defendant to trial. It might be that this court would take judicial knowledge of the terms of court to be held. This point has not been briefed by either the defendant or the state, and the terms of the record are so meager that it is impossible to pass upon this question intelligently. No motion was filed by the defendant prior to the trial, asking that the defendant be discharged because of failure to be given a speedy trial, and the question of a Avaiver of his rights to raise this question presents itself. Ex parte Meadows, 71 Okla. Cr. 353, 112 P.2d 419.

We have recently had occasion in the case of Davidson v. State, 82 Okla. Cr. 402, 171 P. 2d 640, to discuss the terms of the Constitution and the statute with reference to a “speedy trial.” Many cases decided by this court are cited; among them the cases of Glover v. State, 76 Okla. Cr. 53, 134 P.2d 144, Brummit v. Higgins, 80 Okla. Cr. 183, 157 P.2d 922. We also call attention to the case of Ex parte Meadows, supra.

In the Davidson case, supra [171 P.2d 642], the fifth and sixth paragraphs of the syllabus read:

“5. Where defendant is on bail, the presumption is that a delay in the trial is caused by or with the consent of defendant, and the record must affirmatively show that he demanded trial or resisted continuance of the case. However, if defendant is not on bail, the law makes the demand for trial for him and the prosecution had the burden of showing that the trial was delayed for some lawful cause.
“6. Where record disclosed that defendant was not tried at next term after information was filed against him, and because of his inability to make bond, he was held in confinement for a year pending trial and state made no effort to excuse the delay, denial of defendant’s motion for discharge under statute relating to dismissal of prosecutions for failure to grant him a ‘speedy trial’ guaranteed by the Constitution was error.”

In that case the record disclosed that at the time of arraignment, March 8, 1943, the sheriff was directed to take the defendant to the penitentiary for safe-keeping. He was held there until January 26, 1944. Defendant presented a written motion for his discharge by reason of the failure to give him a speedy trial; and he was returned for the purpose of hearing on this motion. The record was full and complete. The defendant testified to all the facts of his incarceration and the dates. The court said:

“It is our conclusion after full consideration of the record in this case that the defendant being in custody and not' on bail had only to show that he was not brought to trial at the next term of court after the information was filed, that the delay was not on his application or with his consent, and that the burden shifted to the state to show good cause why the defendant, had not been tried. The state has wholly failed to sustain this burden.”

While the record in this case does not show that petitioner has met all of the burdens imposed upon him by law, neither has the State met the burdens imposed upon it. There is a letter attached to the petition from the district judge of Pittsburg county in which he states:

“I got in touch with the penitentiary officials and they tell me you are there for safe-keeping charged with murder in Sequoyah county and awaiting trial.”

Petitioner haying had an information filed against him in August, 1944, and not haying been tried until October 15, 1945, was entitled to a full and complete hearing as to whether he had been accorded a speedy trial in compliance with the terms of the Constitution and the statutes, which provide:

Art. II, § 20: “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.”

Tit. 22, O. S.1941 § 812: ,

“If a defendant prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

For the reasons above stated, the judgment of the district court of Sequoyah county is reversed, and the case remanded with directions to the Warden of the penitentiary at McAlester to turn the custody of the defendant to the sheriff of Sequoyah county, to be by him held, pending trial upon the question as to whether defendant was given a speedy trial, and the further order of the district court of Sequoyah county.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte CARL L. JANAWAY.
    No. A-10674.
    Oct. 3, 1946.
    (173 P. 2d 226.)
    Carl L. Janaway, of McAlester, in proper.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Carl L. Janaway, has filed his petition for habeas corpus, seeking his release' from the State Penitentiary at McAlester, where he is confined by reason of a judgment and sentence of the district court of Sequoyah county, Okla.

■ The question involved in this matter has this day been passed upon in the case of Carl Janaway v. State of Oklahoma, No. A-10715, 83 Okla. Cr. 74,173 P. 2d 222, and, therefore, it becomes unnecessary to decide the issue here presented.

For the reasons above stated, the petition for habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.