text:
    C. K. LESLIE v. STATE.
    No. A-3469.
    Opinion Filed Sept. 18, 1920.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 297.)
    (Syllabus.)
    1. Appeal\and Error — Review Limited to Questions Decided Adversely^ Appellant. Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court.
    2. Appeal ipd Error — Evidence Justifying Conviction. Where there is evidence in the record from which the jury could legitimately exclude that the defendant was guilty of the crime charged, tie conviction will not be set aside because of the alleged insufiiciency of the evidence.
    3. Larceny — Evidence Sustaining Conviction of Grand Larceny. Evidence exWined, and held sufficent to sustain the conviction.

      Appeal from District Court, Wagoner County; Charles G. Watts, Judge.
    C. K Leslie was convicted of the crime of grand larceny, ..and appeals.
    Affirmed.
    The state of Oklahoma prosecuted the defendant, C. K. Leslie, by information filed in the district court of Wagoner •county, the charging part of which is as follows:
    "That the said C. K. Leslie, then and there beirg the -cashier of the Farmers’ & Merchants’ Bank of Coweta, a banking corporation organized and existing under the balking laws of Oklahoma, then and there being, did then and there willfully, unlawfully, fraudulently, and feloniously tak^ steal, ..and carry away by fraud, and without the consent and igainst the will of the true owner, the sum of four hundred sixty ($460.00) dollars, good and lawful money of the United States, .andi of the value of four hundred sixty ($460.00) dolías, then .and there the personal property of the Farmers’ & Merchants’ Bank of Coweta, a banking corporation as aforesaid, in said Wagoner county, Oklahoma, with the unlawful, willfil, felonious, and fraudulent intent then and there of him? tie said C. K. Leslie, to deprive another thereof, to wit, the trie owner, the said Farmers’ & Merchants’ Bank of Coweta, i banking ■ corporation as aforesaid, and to convert the said foir hundred sixty ($460.00) dollars to his own use and benefit, contrary,” ‘•etc.
    Defendant pleaded not guilty, and upon tie issues so Joined, a trial was had on the 20th day of Octoler, 1937, resulting in a verdict finding defendant guilty as ciarged in the information, but leaving the punishment to be imposed by the ■ court.
    Defendant in his petition in error, while lleging several grounds for reversal of the judgment, solely riies in the brief •presented upon the ground that the evidence s insufficient to sustain the verdict of the jury upon the charge contained in the information, in that the evidence totally fails to show any larceny of the funds of the bank.
    The evidence in this case discloses that defendant, on the 4th day of September, 1915, and for a considerable length of time before that date, was and had been the cashier of the Farmers’ & Merchants’ Bank of Coweta, Wagoner county, Okla., and that defendant was also acting as guardian for certain minor children, and as such guardian was desirous of purchasing certain lots of land in the town of Coweta from one Ora Sands; the said Ora Sands being at the time guardian of certain other minor children, and as such guardian desired to sell the said certain lots belonging to her wards to defendant. As early as the 10th of May, 1915, Ora Sands had overdrawn her account in the Farmers’ & Merchants’ Bank of Coweta in the sum of $239.98, and the bank examiners of the state of Oklahoma, on discovering this and other overdrafts in said bank, demanded of the defendant that, as cashier of the bank, he collect the said overdrafts and charge them off as an asset of the bank. On the 3d day of September, 1915, Ora Sands had overdrawn her account in the sum of $355.83, and on the following day defendant drew a sight draft on her for the sum of $460, and credited her account with said amount; by this means eliminating the overdraft for $355.83, and giving the said Ora Sands a credit of $104.17.
    The evidence also discloses that the draft drawn by defendant for $460 against Ora Sands was never presented to the said Ora Sands for acceptance or payment, but was placed by defendant in the cash drawer of the bank, and there carried as a cash item until it was found by the bank examiner about the 21st day of December, 1915.
    When defendant was accosted by certain of the bank examiners concerning this draft which was drawn by him on Ora Sands and credited to her account, and carried as a cash item, defendant told the examiners that said draft represented money that he (Leslie) owed Ora Sands, and that defendant did not at that time have money to his personal account, and' therefore had made the draft to represent cash, and he authorized the examiner to charge the amount of the draft to his personal credit in the bank, which was done; and the defendant admitted to the bank examiners, and to the representative of a bonding company which had bonded defendant, that this particular draft and others of a similar nature found in the cash drawer should be charged to his account for the reason that he had used the money, and defendant stated that the Ora Sands draft was a “phoney” draft and that he had no right to draw it. Defendant also stated that he would try to make satisfactory arrangements with the state banking department with respect to these items.
    Defendant in his own behalf testified that the overdrafts carried in the bank had been criticised by the bank examiners; that he drew the Ora Sands draft for $460, gave her credit therefor upon the books of the bank, and placed the draft in the cash drawer of the bank, thereby taking up her overdrafts and giving her a credit of $104.17, which she subsequently checked out; that said draft for $460 drawn by him was never presented to Ora Sands for acceptance or payment, and that he had no authority from Ora Sands to draw the same. He further testified that the sum of $460 was to be paid to Ora Sands in the event that title to certain, real estate which the defendant was purchasing from her was made good, otherwise Ora Sands was to take up the draft, and, if the title was not made good, the defendant himself was to take up the draft.
    The record discloses that the alleged dealings between defendant and Ora Sands, as claimed by defendant, were in their respective relations as guardians for certain minor children, and that defendant was not dealing with her in his capacity as an officer of the bank and there is no evidence in the record to show that defendant at any time ever had any funds on deposit in the Farmers’ & Merchants’ Bank of . Coweta as guardian for any minor children.
    The defendant denied stating to the bank examiners that the $460 draft to Ora Sands, or any other draft found in the cash drawer, was a “phoney” draft.
    The trial court, in submitting the issues in this case, instructed the jury, in a clear and concise manner, covering both the theory of the law of the case from the standpoint of the state and the defendant, and, as this court considers the trial court’s instructions a model set, they are incorporated in this opinion, and are as follows:
    “Gentlemen of the Jury: This is a prosecution by the state of Oklahoma against the defendant,' C. K. Leslie, charging him with the crime of larceny, committed in this county and state on or about the 4th day of September, 1915, and anterior to the presentment of the information in this court. Substantially the information charges that the defendant, Leslie, being the cashier of the Farmers’ & Merchants’ Bank of Coweta, a banking corporation under the laws of the state, did willfully, unlawfully, fraudulently, and feloniously take, steal and carry away by fraud the sum of four hundred and sixty ($460.00) dollars, good and lawful money of the United States, the personal property of saict bank, with the unlawful, willful, felonious, and fraudulent intent of the defendant to deprive the bank thereof, and to convert said sum to his own use and benefit, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state.
    “When the defendant was arraigned he entered a plea of not guilty. The information and the plea of not guilty form the issue you are to try. The information is not evidence against the defendant, nor is the plea of not guilty evidence in his behalf.
    “This court instructs you that larceny, as defined by the laws of this state, is the taking of personal property accompanied by fraud or stealth and with intent to deprive another thereof. Larceny is divided into two degrees, grand and petit. Grand larceny is where the property taken is of value exceeding twenty ($20) dollars, as applied to this case, and is punishable by imprisonment in the state penitentiary by a term not exceeding five years.
    “You are further instructed that the burden of proof rests upon the state to prove each and every material allegation of the information to your satisfaction beyond a reasonable doubt, and if, after a consideration of the whole case, you entertain a reasonable doubt as to the guilt of the defendant, you will resolve that doubt in his favor and acquit him.
    “You are further instructed that the defendant is presumed to be innocent of the crime of which he stands charged, and this presumption of innocence attends and follows him throughout the trial, or until it is overcome by competent evidence which convinces you of his guilt beyond a reasonable doubt.
    “The court instructs you that fraud, within the meaning of the statute relating to larceny, is the obtaining possession of property or money by means of falsehood, deception, or artifice; therefore you are instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant, C. K. Leslie, did in this county and state, on or about the 4th day of September, 1915, and anterior to the presentment of the information in this court, and while cashier and active managing officer of the Farmers’ & Merchant’s Bank of Coweta, used any fictitious and worthless checks or draft to obtain the funds of said bank, and did by use of any such means of fictitious, worthless, or phoney check or draft obtain from said bank funds in exess of twenty ($20) dollars, with intent to deprive the bank thereof, then in that event the defendant would be guilty of the crime of larceny, and it will be your duty to return a verdict of guilty.
    “You are instructed that testimony has been submitted to you by the court as competent for your consideration tending to show that other larceny of sums of money, other than as charged in the information, and that false entries thereof were made and committed by the defendant; and in this matter you are instructed that if you believe from the evidence beyond a reasonable doubt that the defendant did steal such sums and make such false entries, and fraudulently appropriate such sums of money to his own use as therein mentioned, then, in such case, said evidence is only to be considered by you as bearing upon the fact whether or not the defendant stole and fraudulently appropriated the specific amount alleged in the information, and at the time alleged in the information, as tending to show the intent, if any, of the defendant in the commission of the offense alleged against him, and for this or such purpose alone you will consider such evidence of other offenses. And in this connection you are told that, although you may believe that such other offenses were committed by the defendant, but you should have a reasonable doubt that he committed the specific offense alleged against him in the information, then it would be your duty to acquit him; otherwise you should convict him.
    “Gentlemen of the jury, the defendant says and claims he is not guilty of the offense of which he stands charged; that in truth and in fact the item of $460 with which he stands charged with stealing from the bank constituted an overdraft in the sum of $355.83 by one Ora Sands, who at that time and prior thereto was a customer of said bank; that on the 4th day of September, 1915, said overdraft standing against the said Ora Sands, he drew a draft as cashier of the bank against the said Ora Sands and in favor of the bank in the sum of $460, and placed same in the cash- drawer as an obligation of indebtedness against the said Ora Sands for the purpose of taking up said overdraft, and also in furtherance and in accordance to a prior agreement and understanding with her to the effect that in the event a certain real estate transaction wherein she was guardian of her minor Children, and wherein the defendant was guardian of the Nero children, minors, went through and became consummated, then and in that event the said defendant for his wards would take up said draft and pay said funds into the bank, or, in the event said deal was not perfected and consummated as above set forth, then and in that event the said Ora Sands would take up' said draft and pay said funds into the bank in full satisfaction thereof; that said transaction was in good faith, and not for the purpose of injuring or taking away the funds of the-bank unlawfully, and that the draft was intended as a loan to the said Ora Sands. You are therefore instructed: that if you believe from the evidence in this case the matters and things above enumerated, and that the defendant, Leslie, acted in good faith, and not with the intent to unlawfully take the funds of the bank, but for the purpose of consummating the real estate deal mentioned, or, if you have a reasonable doubt thereof, then and in that event it would be your duty to resolve the doubt in favor of the defendant and acquit him.
    “You are further instructed that if you find and believe from the facts in this case beyond a reasonable doubt that the transaction herein mentioned was not good banking business, and not in accordance with the rules and regulations of the banking department and in keeping with good banking business, this, however, is not sufficient evidence to warrant a conviction at your hands; but you must find and believe from the evidence beyond a reasonable doubt that the transaction was not in good faith, but for the purpose of taking the funds from the bank unlawfully and fraudulently, and for the purpose of depriving the bank of its credits or funds; and in this connection the court instructs you that under the law the defendant was civilly liable for the amount of the draft mentioned, but such civil liability alone, and without the elements above mentioned, does not constitute larceny, and it would be your duty to acquit the defendant, unless you find and believe that he acted in bad faith and with the intent to unlawfully deprive the bank of its funds.

      “You- are instructed that you are the sole judges of the credibility of the witnesses, and the weight and value you will give to their testimony; and, in determining what weight and value you will give to the testimony of the various witnesses, you may take into consideration their manner and demeanor upon the witness stand; their fairness or lack of fairness; their intelligence or laek of intelligence; their interest, if any, in the result of your verdict; and if, upon consideration of the whole case, you believe that any witness has willfully, deliberately, and corruptly testified falsely to any material fact at issue in this Case, you are then at liberty to disregard the testimony of such witness in whole or in part, remembering that you are the sole judges of the credibility of the witnesses and the weight and value! you will give to their testimony.1 ’
    Watts & Summers and Newton & Pinson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Wm. H. Zwiek, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Considerable space is devoted in the brief of counsel for defendant to the proposition that there is a fatal variance between the allegations of the information and the proof adduced by the state in support of the charge.

In this connection it is contended, that the proof tends, if at all, to support any crime it is that the defendant, as active managing officer of the bank, indirectly borrowed money from ■the bank, which act is deemed to be larceny under the provisions of section 270, Eevised Laws 1910, a provision of the state banking'laws.

This theory of the ease was not contended for in the trial court, as there was no motion to direct a verdict of not guilty by reason of such a variance. The sole defense advanced in the trial court appears to have been that the specific transaction which the information charges to have been larcenous and felonious was in fact a good-faith transaction on the part of the defendant, for which a civil liability may have ensued in favor of the bank and against him and his bondsmen, but for which no criminal liability in any event could be charged to him. This theory of the defense was fully covered in the court’s instructions.

We deem it unnecessary, therefore, to enter into any discussion of the question as to whether an accused managing officer of a state bank may be charged with larceny under the common-law definition of the crime, and without a fatal variance ensuing proved to bp guilty of borrowing money from the bank either directly or indirectly, which said offense is made larceny by section 270, supra; as the sole question presented by this appeal is whether or not the facts are sufficient to- sustain the conviction of defendant of stealing the funds of the bank by fraud in the manner and form as alleged in the information.

This court has repeatedly held that, if there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the crime charged, the conviction will not be set aside because of the insufficiency of the evidence. Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486; Crilley v. State, 15 Okla. Cr. 44, 181 Pac. 316.

In this case the evidence establishes that early in the year 1915 Leslie permitted not only Ora Sands, with whom he was dealing for the purchase of certain real estate, to make an overdraft in the bank, and thereafter drew a sight draft on her which he placed in the cash drawer of the bank, and never submitted it to her for acceptance or payment, but was guilty of doing the same thing in several other instances. The evidence of these other similar transactions was admissible for the purpose of showing the intent with which the particular act charged in the information was committed, as covered by the court’s instructions. We do not think it absolutely necessary for the state to prove that defendant physically extracted the sum of $460 of money from the bank, nor that he obtained any benefit by reason of the larceny of this money. Under the charge, it was necessary only that the state prove that he took the money of the bank by fraud and with intent to deprive the bank thereof. That he took the money we think is proven beyond any reasonable doubt by the evidence on the part of the state. That the transaction was fraudulent we also believe to be sustained by the circumstances and means used by defendant to conceal the taking of the money. There is no contention that the bank at any time consented to any of these fraudulent transactions, and the manner in which the defendant obtained the money was concealed by the method pursued by him. Under the instructions of the court it was incumbent upon the jury to find beyond a reasonable doubt that this, defendant used certain fraudulent means, to wit, fictitious and worthless checks, and “phoney” drafts, to obtain from the bank its funds in excess of $20, with the intent to deprive the bank thereof. On the other hand, the jury was instructed fully and clearly upon the theory of the defendant that he acted in good faith in these transactions, and without any intent to deprive the bank thereof; and in this connection the jury were told that, if they believed such facts to be true, they should acquit defendant; and further, if the jury had a reasonable doubt as to whether such facts were true they should acquit the defendant. It was incumbent upon the jury, therefore, before they could convict the defendant, to find beyond a reasonable doubt that he was guilty of the crime of larceny by fraud as charged in the information. The issues between the state and the defendant were fully covered by the court’s instructions in sucb a manner that the jury could not have been misled in the least as to the necessity of finding that the defendant, by means of fraud, stole the particular $460 of the money of the bank, as alleged in the information, or in that identical transaction stole a sum of money in excess of $20.

We are of opinion that the state’s evidence, as summarized above and as appears in the record in this case, is amply sufficient to authorize the jury to reasonably conclude that defendant was guilty of the crime charged, and for such reason is sufficient to sustain the verdict and the judgment of conviction as pronounced thereon. Holding such view, it is incumbent upon this court to affirm the judgment, and it is therefore ordered that the judgment of the district court of "Wagoner county sentencing the defendant to a term of two years’ imprisonment in the state penitentiary be, and is hereby, affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JAKE HEATH v. STATE.
    No. A-4373.
    Opinion Filed Nov. 28, 1922.
    (210 Pac. 560.)
    (Syllabus.)
    1. Appeal and Error — Time for Appeal of Felony Case. Under Code of Criminal Procedure (section 2808, Comp. Stat. 1921), “in felony cases the appeal must be taken within six months after the judgment is rendered,” and when it appears from the record that such appeal was not perfected within six months from the rendition of the judgment, the same will be dismissed for want of jurisdiction.
    2. Same' — Bail—Appeal Bond Rendered Ineffective by Failure to Perfect Appeal in Time. The power and authority of trial courts to allow bail and to fix' the amount of the appeal bond pending appeal can only be exercised in the manner provided by the statute (section 2811, Comp. Stat. 1921), and where a defendant fails to make and serve a case-made within the time allowed by the statute, or within such extended time as may be allowed by the trial court, or where he fails to file his petition in error in the appellate court as required by law, he thereby waives his right to have the execution of the judgment stayed, and the appeal bond given ceases to be effective as a super-sedeas.
    Appeal from District Court, Osage County; Chas. B. Wilson, Jr., Judge.
    Jake Heath was convicted of larceny of live stock, and he appeals.
    Appeal dismissed, and cause remanded, with direction to enforce judgment.
    Murphy & Duncan, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Jake Heath, was tried and convicted on an information charging the theft of nine cows, the property of C. A. Duncan, and in accordance with the verdict of the jury he was on the 15th day of June, 1921, sentenced to serve a term of two years’ imprisonment in the penitentiary at McAlester. From the judgment an appeal was attempted to be taken by filing in this court on June 12, 1922, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal on the ground that the appeal was not filed) within the time required by statute; therefore this court is without jurisdiction, to hear and determine the same.

The appeal in a criminal case is from the judgment of conviction and “in felony cases the appeal must be taken within six months after the judgment is rendered.” Section. 2808, Comp. Stats. 1921. The appeal is taken by filing in this court a petition in error with case-made attached, or a transcript of the record, together with proof of service of notice of appeal as required by tbe statute. Section 2809, Comp. Stat. 1921. When this is not done within the time: allowed by statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Clark v. State, 18 Okla. Cr. 145, 193 Pac. 1008.

The record shows: That the court rendered judgment on the verdict on the 15th day of June, 1921. The court fixed the amount of his appeal bond, which was given, and the execution of the judgment stayed pending the filing of the appeal as required by law. Section 2811,. Comp. Stat. 1921. Time was given to make and serve a case-made. That on the 1st day of August, 1921, the defendant made application for and was granted an additional extension of time up to and including the 15th day of October, in which to make and serve a case-made. That on the 15th day of October, 1921, the defendant made application for and was granted an additional extension of time up to and including the 5th day of November, 1921, in which to make and serve a ease-made. It further appears that on the 7th day of January, 1922, after six months had expired from the date of the rendition of the judgment, counsel for the defendant filed a motion to have the trial court "make an order requiring the county attorney to submit a journal entry of judgment in this cause,” and "to make an order fixing the time within which to make, serve, and settle a case-made after the submission of the journal entry of judgment aforesaid, for the purpose of taking an appeal to the Criminal Court of Appeals.” The county attorney made application to the court for a nunc pro tunc entry of the judgment, which was sustained, and judgment nunc pro tunc was entered on January 10, 1922.

The question here presented was directly passed upon in the case of Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739. In the opinion it is said:

“The appeal is from the judgment against the defendant, and in a felony case must be taken within six months from the time the judgment is rendered. It will be noted that the word 'rendered’ is used in the statute, but the defendant in this cáse contends that the statute contemplates that the time in which an appeal may be taken should be reckoned from the time the judgment was entered nunc pro tunc. It is not for this court to construe into a plain, unambiguous statute provisions not therein expressed, for the reason that, in the view of the court, the statute should contain other or modifying provisions. The Legislature could as easily have provided that the time should run from the day the clerk made the judgment entry, but it did not do so. The clerk’s record is the best evidence of the judgment and sentence; but if this record is incomplete, but enough appears to indicate the scope of the judgment rendered, the omissions can b'e supplied by appropriate orders of the trial court, or by application to this court. The validity of the judgment cannot be avoided as between the parties because the clerk failed to perform his ministerial duties in making up the records. In ordinary legal parlance, judgment and sentence have the same meaning and where, through the negligence or omission of the clerk, the judgment rendered is defective or incomplete, the court may, upon a proper showing, require the clerk to make the record conform to the facts. Petition of Breeding, 75 Okla. 169, 182 Pac. 899; Ex parte Lyda Howland, 3 Okla. Or. 142, 104 Pac. 927, Ann. Cas. 1912A, 840; 17 C. J. 32, title, ‘What Constitutes Final Judgment’; 8 R. C. L. 246; 16 C. J. 1266. * * * Moreover, a person having a right of appeal may lose that right by waiver or estoppel. In this case an appeal was originally prayed for and granted; the defendant thus admitting that a judgment and sentence against him had been rendered. Time was given and extended in which to prepare an appeal. The court fixed the amount of the supersedeas bond, which was by the defendant executed and approved by the clerk, and the defendant was given his liberty pending the appeal. The defendant could perfect and prosecute his appeal, or he could abandon and waive it, as was done in this case.”

The power and authority of trial courts to allow bail and to fix tbe amount of tbe appeal bond pending the appeal can only be exercised in the manner provided by the statute. Section 2811, Comp. Stat. 1921. Otherwise a defendant, when he has perfected his appeal, must apply to this court for a super-sedeas order fixing the amount of his appeal bond, and where the defendant fails to make and serve a case-made within the time allowed by the statute, or within such extended time as may be allowed by the trial court or judge thereof, or where he fails to file his petition in error in the Criminal Court of Appeals as required by law, he thereby waives his right to have execution of the judgment stayed pending the perfection of his appeal, and any appeal bond given ceases to be effective as a supersedeas. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

For reasons therein stated, the motion of .the Attorney General must be sustained. The attempted appeal herein is therefore dismissed, and the cause remanded to the district court off Osage county, with direction to enforce its judgment therein.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    J. F. RUSH et al. v. STATE.
    No. A-3231.
    Opinion Filed Oct. 8, 1921.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 316.)
    Appeal from County Court, Oklahoma County; William H. Zwick, Judge.
    J. F: Rush, T. L. Walters, G. G. Glover, C. A. Provo, Ben Herskowitz and Ned Warren were each convicted of gambling, and they appeal.
    Reversed and remanded as to Ned Warren, and affirmed as to the other defendants.
    B. G. McAdams, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The above-named appellant's, hereinafter referred to as defendants, were convicted at the 1917 term of county court of Oklahoma county of the crime of gambling, and'punishment assessed in the form of a fine of $100, to which was added imprisonment in the county jail for period of 30 days. All the defendants except Warren were jointly tried and convicted by jury. After close of that trial Warren pleaded not guilty, waived a jury trial, and by agreement with the county attorney the 'issue in his case was submitted to the court upon evidence introduced in the trial of the other defendants, “said evidence to be of same force and effect as reintroduced at this time before the court.”

The only question presented for review is the sufficiency of the evidence to sustain these convictions. The evidence as a whole is circumstantial, as it generally is in cases of this kind, unless the evidence of an accomplice is obtainable.

A careful review has been made by the court of this evidence. Allowing the reasonable inferences and deductions to be drawn from the circumstances adduced against all the defendants with the exception of one, the court is of the opinion that there is evidence in the record sufficient to give the jury reasonable grounds to conclude that the defendants were guilty of the crime charged; and, in the absence of any defense interposed or explanation made of these incriminating circumstances, we think the judgment as to these defendants should be affirmed.

As to the defendant Warren, there is no evidence in the record which connects him with this offense. His conviction is based on evidence from the trial of the other defendants, and in that trial the state only attempted to identify the defendants then on trial as being present and participating in the game. Warren’s name was not mentioned in that trial.' True, two of the witnesses for the state testified that there were two other persons than defendants on trial present at the game. Who these other two were does not appear from this record.

The Attorney General has filed a confession of error, in which he states that there is no evidence to connect the defendant Warren with the crime, and asks that judgment in his case be reversed. This court concurs in views expressed in the confession of error by Attorney General, and the judgment as to Ned Warren is reversed, and cause remanded, as to him, to the trial court for further proceedings. The judgment as to Rush, Walters, Glover, Provo, and Herskowitz is affirmed.


text:
    J. H. SPANN v. STATE.
    No. A-3764.
    Opinion Filed Nov. 3, 1921.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 315.)
    (Syllabus.)
    1. Appeal and Error — Affirmance >Where no Brief and no Argument. In a felony case where the defendant appeals from a judgment of conviction, and no briefs are filed or argument presented, this court will examine the record, and if the evidence is sufficient to support the conviction, and no error is apparent, will affirm the judgment.
    2. Larceny — Evidence to Support1 Conviction. In a prosecution for larceny of domestic animals, evidence held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Johnston County; J. H. Line-baugh, Judge.

      J. H. Spann was convicted of larceny of live stock, and he; appeals.
    Affirmed.
    J. S. Ratliff, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen.r for the State.
   DOYLE, P. J.

Plaintiff in error was convicted of the; crime of larceny of live stock, and' in accordance with the verdict of the jury was sentenced to serve a term of two years ’ imprisonment in the penitentiary. He has appealed from said-judgment of conviction to this court, but there has been no appearance in his behalf on his appeal, and there is nothing before us but the petition in error and case-made.

The errors assigned are that the verdict is contrary to the law and the evidence, and that the court erred in the admission and rejection of evidence to the prejudice of the defendant. In eases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in its rulings on the admission or rejection of evidence. However, we have given careful examination and consideration to the record in this case, and we find no error justifying a reversal. "We think the testimony, without any doubt, is ample to sustain the conviction. The judgment of the district court of Johnston Gounty is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: DOYLE, J.

text:
    SAM HANNON v. STATE.
    No. A-4440.
    Opinion Filed Jan. 13, 1923.
    (211 Pac. 437.)
    (Syllabus.)
    Appeal and Error' — Dismissal—Acceptance of Parole by Appellant.— When an appeal from a judgment of conviction is pending in this court and the plaintiff in error applies for1 a parole and the same is granted, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, Ottawa County; A. C. Brus-ter, Assigned Judge.
    Sam Hannon was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    C. A. McNeill and F. W. Church, for plaintiff in error.
   DOYLE, J.

Plaintiff in error, Sam Hannon, was convicted in the district court of Ottawa county of manslaughter in the first degree, and his punishment fixed at five years in the penitentiary upon an information charging that in said county on or about the 21st day of September, 1919, he did shoot and kill one Charles Stewart. From the judgment rendered in accordance with the verdict on April 29, 1922, an appeal was perfected by filing in this court on September 1, 1922, a petition in error with case-made.

Counsel for plaintiff in error has filed a motion to dismiss the appeal on the ground and for the reason:

“That he has been extended executive clemency, in that on the 3d day of January, 1923, he was by Hon. J. B. A. Robertson, Governor of the State of Oklahoma, granted a parole; that thereafter on the 4th day of January, 1923, he accepted the same.
“The original parole duly signed by Hon. J. B. A. Robertson, and attested by Hon. Joe S. Morris, Secretary of State, is hereto attached and made a part of this motion.
“"Wherefore plaintiff in error asks that said appeal be-dismissed.”

The uniform holding of this court is that when the pardoning power extends clemency and the same is accepted pending-the determination of an appeal, the appeal will be dismissed, and when an appeal from a judgment of conviction is pending in this court, and plaintiff in error applies for a parole and the same is granted, and the fact that a parole has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the district court of Ottawa county.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    CHARLEY WHITE v. STATE.
    No. A-3844.
    Opinion Filed March 25, 1922.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 313.)
    (Syllabus.)
    1. Continuance — Absence of Witnesses — Lack of Diligence. — On an application for a continuance on account of the absence of certain witnesses, where no subpoena was issued directed to the sheriff of the county where these witnesses resided, the application was properly overruled.
    2. Mayhem — Evidence of Feeling Between Parties Caused by Lawsuit. — For the purpose of showing motive, either party to a personal physical encounter may introduce testimony tending to show that ill feeling between the parties had been engendered by another lawsuit in which .they were interested.
    3. Mayhem — Instructions—Sufficiency.—The instructions given and those refused examined, and held that the instructions given fairly cover the law of the case.
    Appeal from District Court, Coal County; J. H. Linebaugh, Judge.
    Charley White was convicted of the crime of maiming, and sentenced to two years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    J. G. Ralls, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charley White, plaintiff in error, in this opinion referred to as the defendant, was by information originally filed in Atoka county charged with the willful and felonious maiming of A. W. Cope, on August 25, 1927, by biting off the left ear of A. W. Cope, thereby disfiguring his personal appearance. Later a change of venue was taken to the district court of Coal county. .

On April 2, 1920, the defendant filed a motion for a continuance on the ground that Mist Gordon, Gardner Gordon, and Belle Lain, all residents of Atoka county, had been subpoenaed on behalf of the defendant by subpoenas issued by the court clerk of Coal county directed to the sheriff of Coal county and returned “not found in Coal county.” The motion for a continuance was overruled, and the cause came on for trial before a jury, resulting in a verdict of guilty as charged, and assessing his punishment at two years’ imprisonment in the state penitentiary. In due time a motion for a new trial was filed, which was by the court overruled, and judgment rendered on the verdict. From this judgment and sentence the defendant appeals.

The first assignment of error urged by the defendant is the overruling of the motion for a continuance. This motion, together with the subpoenas attached and the return of the officer thereon, show on their face that due diligence had not been exercised by the defendant to procure these witnesses. No effort seems to have been made to have subpoenas issued directing the sheriff of Atoka county to summon these witnesses, who all resided in that county. The defendant should have known, and probably did know, that the issuing of subpoenas in Coal county, directed to the sheriff of that county, would avail nothing, for the reason that the witnesses did not reside in Coal county, and in all probability could not be found there. We think the motion for a continuance was properly overruled.

Defendant complains next that the court erred in permitting the introduction of incompetent and prejudicial testimony, in allowing A. W. Cope, the person alleged to have been maimed, to state, for the purpose of showing motive, that he had been a witness against the defendant in a criminal case pending in the district court of Atoka county. We think this evidence, explained by what preceded it and what followed it, was competent! for the purpose of showing motive, premeditation, and as tending to throw light upon the question of which of the parties was the aggressor.

Defendant also complains of the remarks of the court during the cross-examination of the state’s witness, Charley Sisson. After a prolonged cross-examination of this witness, including many repetitions, the court said:

“Objection overruled. I will tell you I am going to cut this cross-examination short; you are not going to draw this cross-examination out.”

To these remarks of the court the defendant excepted. Under the circumstances here we see prejudicial error in these remarks of the court.

During the course of the examination of George Fron-terhouse this question was asked the witness, “Isn’t it a fact that Charley White’s mouth is so small that he could not reach up and get it wide enough open to get Cope’s ear in there?” To this question an objection was urged and sustained on the ground that it was argumentative. Charley White was in court, the jurors had the opportunity to observe the size of his mouth; the ear was also in court; we think the question did call for a conclusion of the witness and was argumentative, and that the court committed no error in sustaining the objection thereto.

The defendant requested the following instruction, which was by the court refused and an exception allowed:

“Before you would be authorized to convict the defendant in this cause you must find from the evidence beyond a reasonable doubt that the defendant, Charley White, bit off the ear of the prosecuting witness, A. W. Cope, and that said act of biting off the ear of the said Cope was done with a premeditated design to permanently disable, injure, or disfigure the said A. W. Cope, and unless you so find beyond a reasonable doubt you must acquit the defendant and say by your verdict not guilty. ’ ’

Instruction No. 8 given by the court, touching on the question of self-defense, is as follows:

“You are instructed that in this case the defendant for his defense claims that at the time the injury was inflicted, if any was inflicted upon the said Cope, that he and the.said Cope were engaged in a personal conflict which had been brought on by the said Cope, and that at the time of the injury the defendant was acting in his necessary self-defense, in defending himself against an assault made by the said Cope, and that if in the difficulty the said Cope was injured the same was without any design upon his part to injure, disfigure, or disable the said Cope, but that he was simply acting in his defense; and the court instructs you that if you find that the prosecuting witness, A. W. Cope, was the aggressor in the difficulty and brought the same on, and at the time of the injury the defendant was acting in his own self-defense and had no design to injure, disfigure, or disable the said Cope, or if you have a reasonable doubt whether such design existed, then it would be your duty to acquit the defendant; otherwise you would convict him.”

Although three witnesses testified that they saw the defendant sever the ear with his mouth, it was the theory of the defendant that Cope’s ear may have been severed from his head by his falling violently upon the corner of a concrete step where the difficulty occurred, and defendant complains that instruction No. 8, given by the court, eliminated from the consideration of the jury that theory of the ease. This instruction was upon the question of self-defense, and was not intended to cover any other issue. No request was made by the defendant for an instruction covering the theory of the accidental severing of the ear by the defendant’s falling upon the concrete step. The instruction requested by the defendant, quoted above, was too broad, and not a correct statement of the law applicable to the facts in evidence. Section 2345, R. L. 1910, defines maiming as follows:

“Any person who, with premeditated design to injure his personal appearance, or disables any member or organ of another, inflicts upon his person any injury which disfigures his body, or seriously diminishes his physical vigor, is guilty of maiming.”

It will be seen that a premeditated design to injure another is the gist of the offense, and to state that the defendant should be acquitted if it did not appear beyond a reasonable doubt that the act was done with the premeditated design to permanently disable, injure, or disfigure the person assaulted goes beyond the purview of the statute. The court committed no error, therefore, in refusing to give this instruction in the language requested. The court did instruct the' jury in the language of the statute, and we think the instructions as a whole fairly cover the issues of fact properly before the jury for their consideration.

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

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


author: MATSON, J.

text:
    ED HAGERTY v. STATE.
    No. A-3700.
    Opinion Filed March 11, 1922.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 300.)
    (Syllabus.)
    1. Appeal and Error — Necessity for Objections Below — Duplicity in Indictment or Information. An objection that an indictment or information is duplicitous must be raised by demurrer in the trial court. The failure to raise such objection by demurrer amounts to a waiver of the objection.
    2. Trial — Instruction on Circumstantial Evidence. Where some of the evidence is circumstantial and some direct, the defendant is not entitled, as a matter of right, to have the jury instructed fully upon the law of circumstantial evidence.
    3. Appeal and Error — Harmless Error — Incompleteness of Instructions as to Description of Offense1. Although the instructions may not contain a complete description of the offense as charged in the information, in view of the fact that the jury may have access to the information for a more complete description of the offense, or request further instructions, the instructions given in other respects not being such as to mislead the jury or,to deprive the defendant of any constitutional or statutory right, and an inspection of the record convincing this court that the trial did ;not result in a miscarriage of justice, a reversal will not follow because of inaccuracies in or incompleteness of instructions considered separately.
    4. County Attorney’s Argument Warranted by Evidence. Argument of county attorney examined, and considered in connection with the evidence, and held to be warranted by the evidence.
    5. Sufficiency of Evidence. The evidence in this case is held to be sufficient to support the verdict and judgment.
    Appeal from District Court, Custer County; J. W. Bird, Judge.
    Ed Hagerty was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    E. L. Mitchell, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Ed Hagerty was convicted in the district court of Custer county, at the November, 1919, term thereof, of the crime of burglary in the second degree, alleged to have been committed by him on the 22d of June, 1919, by breaking and entering in the nighttime a certain building in the city of Clinton, in said county, situated on lot 13 in block No. 36 in the original town, and being the property of the Oklahoma State National Bank, and being then and there occupied by the Clinton Drug Company, and in which was kept the personal property of said Clinton Drug Company, and with a felonious 'and burglarious intent on his part to take, steal, and carry away by fraud and stealth certain personal property of the Clinton Drug Company, with the unlawful and felonious intent .to deprive the Clinton Drug Company thereof and to convert same to his own use, et cetera. . The punishment assessed by the jury was imprisonment in the state reformatory at Granite for a period, of two years, the minimum provided by law for such offense.

Among other grounds for a reversal, it is contended that the information is duplicitous, in that it charges both the crimes of burglary and larceny in one count. We deem it unnecessary to enter into a discussion of the merits of this assignment, as no demurrer was interposed to the information in the trial court.

Section 5791, Revised Laws 1910, in part provides:

“The defendant may demur to the indictment or information when it appears upon the face thereof: # * * Third. That more than one offense is charged in the indictment or information.”

Section 5792, Revised Laws 1910, provides:

“ The' demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the indictment or information, or it must be disregarded.”

Section 5799, Revised Laws 1910, in effect provides (among other things) that an objection that an information is duplicitous can only be taken by demurrer.

From the foregoing statutory provisions it is evident that an objection that an information is duplicitous!, when made for the first time in the appellate court, is too late. The failure to properly raise this objection by demurrer to the information in the trial court upon this specific ground amounts to a waiver of the objection, and under the statute this court must disregard it. Childs v. State, 4 Okla. Cr. 475, 113 Pac. 545, 33 L. R. A. (N. S.) 563; Stone et al. v. State, 12 Okla. Cr. 313, 155 Pac. 701.

Further, it is contended that the trial court erred in failing to give an instruction on circumstantial evidence. No request was made of the trial court to instruct on this subject. The evidence relied upon by the state for a conviction was" not wholly circumstantial. While most of the state’s evidence was circumstantial, there was ,some evidence of a purported confession having been made by the defendant. Under such circumstances the defendant was not entitled, as a matter of right, to have the jury instructed fully upon the law of circumstantial evidence. Hendrix v. U. S., 2 Okla. Cr. 240, 101 Pac. 125; Star v. State, 9 Okla. Cr. 210, 131 Pac. 543; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102.

In this connection it is also contended that the instructions as a whole were “indefinite, vague, incomplete, and did not fully present the law of the case to the jury.” While we do not consider the instructions a model set, and are of the opinion that the court could have and should have been more specific in designating in the instructions the description of the offense charged, it is apparent from an examination of the entire record, however, that any inaccuracies or incomplete statements in the court’s instructions were not such as to mislead the jury or to deprive the defendant of any constitutional or statutory right, as the jury may have access to the information itself for a more complete description of the offense than that given in the instructions or request further instructions, and in other respects the instructions are deemed to be sufficient. Especially is this conclusion impressed upon the court by the statutory provision prohibiting this court from reversing a criminal judgment on the ground of the— “misdirection of the jury * * * unless, * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Section 6005, Revised Laws 1910.

It is also contended, that in the closing argument of the county attorney certain statements were made prejudicial to the substantial rights of the defendant. The remarks com-plaineid of were objected to at the trial by counsel representing the defendant, and the trial court very promptly admonished the county attorney to stay within the evidence.

We have made a very careful examination of the remarks complained of, in conneetiton with the transcript of the evidence, and are of opinion that the comments and deductions of the' county attorney in his argument were clearly warranted by the evidence, and the statements made by him were not such as were calculated to arouse the prejudices or to appeal to the passions of the jury, to the exclusion of the evidence in the cause. We therefore find no ground for reversing the judgment on this assignment.

The evidence is sufficient to sustain a conviction. The direct and circumstantial evidence is such, in our opinion, as to lead unerringly to the conclusion that tthe defendant is guilty of the offense for which he was convicted. He had the benefit of able counsel, who were untiring in their efforts in his behalf. The fact that the minimum punishment was imposed by the jury is attributable more to the energetic efforts of defendant’s counsel than to any other cause.

For reasons stated,^ the judgment is affirmed.

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


text:
    GEORGE REED v. STATE.
    No. A-3769.
    Opinion Filed Feb. 25, 1922.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 311.)
    (Syllabus.)
    Larceny — Party Assisting in Carrying Away Stolen Goods Liable as Principal. One who joins in with thieves and assists in the asportation and disposal of stolen property, knowing at the time he does so that the others acting with him are in the very act of carrying away the property of another, must be held guilty as a principal.
    (a) The above conclusion is founded on the provisions of sections 2666 and 2104, Rev. Laws, 1910, making one aiding and abetting the thief a principal in any county where the felonious asportation took place.
    Appeal from District Coiirt, Nowata County; C. W. Mason, Judge.
    George Reed was convicted of grand larceny and sentenced to serve a term of two years in the state penitentiary, and he appeals.
    Affirmed.
    E. E. Sams and Henshaw & Hough, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

George Reed, plaintiff in error, in this opinion designated the defendant, was by information filed in the district court of Nowata county, April 29, 1919, charged jointly with Henry Meigs with the theft of one Dort automobile, the property of one L. T. McCament, in Nowata county, Ohla. These defendants were tried separately. Meigs, having entered his plea of guilty, was at the time', of the trial of Reed serving his sentence for the crime in the state penitentiary.

The automobile, the subject of the larceny charged, was originally taken from the owner in Coffeyville, Kan., and by the codefendant Meigs taken to what is known as Blue can.yon in the Big Creek country in Nowata county, near the >home of the defendant. The ear was there dismembered, and portions of it were placed upon the Dort car belonging to this defendant. Other portions were hidden in a well nearby, •other parts were thrown into a creek and other places nearby, .and what remained was found in this canyon, partially consumed by fire.. There was evidence to show that both Meigs .and Reed) were concerned in tearing the car apart and in concealing the parts' not afterwards used.

The defendant at first denied that any of the parts taken .from the stolen car had been attached to his car, but after-wards admitted that some of them were. There is evidence •.tending to show that the defendant had a previous arrangement with his codefendant Meigs, and assisted him to steal this car or other cars; that it was agreed that Meigs was to obtain parts to repair this defendant’s Dorf car, and that the repairs would not cost defendant anything, except the occasional use ■of the car so repaired. There is evidence to the effect that •the defendant took his team and wagon and helped Meigs to haul the engine and other heavy parts of the car to the places where they were concealed. A' deputy sheriff testified that Meigsi, in the presence of this defendant, stated that the ■defendant was with Meigs when the car was stolen, but that in .•subsequent conversations he denied that this defendant was with him, stating that the taking of the car-in the first instance • was done by him alone. The parts taken from the stolen car and .-.attached to' the car of the defendant were put there by.Meigs, who was an automobile mechanic, and' while these parts were being so placed Meigs stayed for several days at the home of •‘the defendant.

The defendant testified that he had a contract with Meigs to repair his car, for. which he was to pay him $50, that in ffhe course of the work done on the car he paid him several small checks, and that he had no knowledge that the parts placed upon his car were taken from a stolen car, and did not know from whence they came or in what manner they were brought upon his premises.

Seven assignments of error are urged in defendant’s brief, but these may be condensed and treated under one head, as follows: That before one can be convicted of the larceny of property taken in another state and brought into this state he must have had such part in the original taking that he would be guilty of the crime of larceny in that state; that to render one guilty of such larceny in this state he must, either have participated therein or aided and abetted therein in the other state. As will be seen later, this is not a correct statement of the law as it exists in this state.

While the .evidence is not conclusive, there is evidence which, when considered with all the circumstances in the ease, indicated strongly that the defendant was connected with the original taking of the property.

While there was no direct testimony that there was an agreement or arrangement.between the defendant and Henry Meigs that the latter was to steal this particular car, there is testimony to show that he was to procure such parts for de-' fendant’s car as would put it in running order, and that they were to sell such parts as could not be used. Under this theory of the case the defendant was interested in the original taking.

Section 2666, R. L. 1910, reads as follows:

‘.‘Any person who steals the property of another in any other state or country, and brings the same into this state may be convicted and punished in the same manner as if such larceny had been committed in this state; and such larceny may be charged to have been committed in any town or city into or through which such stolen property has been brought. ’ ’

Section 2104, K. L. 1910, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly -commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Construing these two sections together, it is apparent -that if the defendant here was not concerned in the original taking of the ear in Kansas, but afterwards, with knowledge that it was a stolen car, .assisted in its asportation within this .state, such acts would constitute larceny here. As to this de■fend'ant under such circumstances, the taking would be within -the state of Oklahoma. To maintain the prosecution it is not necessary to show that ithis defendant was an accessory to the original taking; it is sufficient that he aided and abetted in the asportation within this state — and there is evidence in the record to support both theories.

In the case of Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263, quoting from the body of the opinion at page 683 of 7 Okla. Cr., at page 265 of 126 Pac., it was said:

“Larceny has been held to be a continuing offense; and ¡statutes providing that the thief may be prosecuted in any county into which he takes the stolen goods have been held to be constitutional. * * * Upon this theory, one who joins in with the thieves and assists in the asportation and disposal of •stolen property, knowing at the time he does so that the others acting with him are in the very act of carrying away the ■property of another, must be held guilty as a principal.”

See, also, Bivens v. State, 6 Okla. Cr. 521, 120 Pac. 1033.

We see no reason why the asportation of the property •.should be divided into parts, separating the asportation in Kansas from that in Oklahoma. It was not the intention of the Legislature in the enactment of section 2666, supra, to indulge in intricate fictions. Section 2104, supra, provides that all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, and whether done directly or indirectly, are principles. The fact that this defendant may have assisted in the asportation of only a part of the property makes no difference. Indeed, there must have been some slight asportation of the whole car when he assisted his codefendant in removing the tires and other portions of the car.

The judgment of the trial court is affirmed.

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


text:
    J. L. SHRADAR v. STATE.
    No. A-3587.
    Opinion Filed Nov. 25, 1921.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 304.)
    (Syllabus.)
    Appeal and Error — Burglary—Evidence Sustaining Verdict of Guilty in Second Degree. — Record examined, and held, evidence sufficient to sustain verdict and judgment, and that the defendant was accorded a fair and impartial trial.
    Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.
    J. L. Shradar was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    The defendant, J. L. Shradar, was jointly informed against in the district court of Blaine county with one Frank Donahogan and one W. H. Humes, charged with' burglarizing a certain garage owned and operated by L. L. Cotton in the town of Greenfield, Blaine county. The breaking and entering of said garage was alleged to have been accomplished on the 29th day of August, 1918, in the nighttime. The evidence on the part of the state discloses that Cotton, the owner, had left the town of Greenfield at about the hour of noon of the 28th day of August, 1918, and had traveled in a Ford car, accompanied by his wife and children, to the city of Bl Reno, and there took an interurban to Oklahoma City. Cotton and his family returned to El Reno that evening, got their Ford car, and drove back to Greenfield. They arrived at the city of Greenfield at about 40 minutes after midnight, drove up in front of Cotton’s public garage and when they arrived there Cotton heard some noise inside the garage. Cotton entered the garage by the front door, walked back a piece, and picked up an unloaded double-barreled shotgun that was in there, then walked back to the front door and turned on a switch to an electric light just outside of the garage, and about that time he was overtaken by the defendant Donahogan, who thrust a pistol into his breast and demanded to know what Cotton was going to do with the shotgun. Cotton told Donahogan that he (Cotton) was the owner of the garage, and wanted to know what Donahogan was doing in there at that hour of the night. Donahogan replied that he had permission to sleep there that night from the man that ran the garage. Cotton told him that he did not allow anybody to sleep in his garage, that there was a hotel in town, and that he and his companions would have to go some place else. Donahogan then called his two companions, telling them that this was the man that owned the garage, and that they could not stay there that night. Two men, one of whom Cotton testified he believed was the defendant Shra-dar, then came out of the garage. After they had left, Cotton went to the- place where Roy Cooper, who worked for him, was sleeping, wakened Cooper, and after finding that Cooper had not given anybody permission to stay in the garage that night, but, on the contrary, had securely locked and fastened all openings and entrances to the garage at about 10 o’clock, they both went back to the garage, and there discovered that the three persons who had left had apparently been in the act of burglarizing the garage, as a number of automobile casings Cotton had in stock had been removed from under the counter and stacked up at the front door of the garage, and also quite a number of inner tubes had been taken from their boxes on shelving and packed in a suit case, which had been left by one of these parties when they left. Investigation of the suit case also disclosed a piece of soap wrapped up in some oilcloth, and a piece of the same oilcloth was found in possession of these parties the next day when .they were arrested.
    After discovering that it was the evident purpose and intention of the parties that had broken into the garage to burglarize it and escape in a Ford car that was in the garage at that time, Cotton called the sheriff of Blaine county at Watonga, and he immediately came to Greenfield in an automobile. As soon as it was light enough Cotton and the sheriff tracked thesei 'parties quite a distance east from the town of Greenfield, but because of travel along the roads by school children and stock the tracks became commingled with others about 5 or 6 miles east from the town of Greenfield and that mode of pursuit was abandoned. The evidence discloses that there had been rain that night before Cotton got home, and that it was easy to follow the tracks. After abandoning tracking, the sheriff notified nearby towns to be on the lookout for three men1 answering to the. description that Cotton had given him. This resulted in the arrest of Donahogan, Humes, and this defendant, in the town of Okar-che, which1; is located 15 or 20 miles east of the town of Greenfield, at about 1 o’clock in the afternoon of the 29th day of August. At tbe time of arrest, these parties were eating lunch at a /restaurant in the town of Okarche, and had been seen to walk into town from the west. After their arrest they were searched, and each found in possession of a pistol and the defendant Shradar had about $160 in money on his person. They were taken to El Reno by the arresting officer, and placed in jail there. That evening the sheriff of Blaine county and one of his deputies and Mr. Cotton went to El Reno for the purpose of identifying the prisoners and taking them back to Watonga, if they were the right parties. Cotton was able to identify the defendant Donahogan postively as the man who thrust the pistol at him at the time of discovering them in'the garage. Cotton also testified that in his judgment the other two prisoners were the same men who were with Dona-hogan in the garage.
    The defense interposed by this defendant was ..an alibi. He testified: That he lived in the cit$ of Enid, Okla., and was in that city all day on the 28th of August, 1918. That he did not leave Enid until about 4:30 o ’clock on the morning of the 29th, when he went by train from Enid to the city of Kingfisher to look for work in the harvest fields. After arriving at Kingfisher he started to walk out west of the city in search of work at threshing wheat, when he was overtaken by a man hauling a load of household goods. That he rode with this man for several miles, and left him at a crossroads near a schoolhouse; the defendant at that time having seen some smoke at a distance that he believed was coming from the engine of. a thresher. Here it was that the defendant Shradar claims he first came upon and got into the. company of Donahogan and Humes, whom defendant says came walking, together with a third man, along the highway by the schoolhouse. The defendant abandoned his intention of looking for work threshing in that community, and determined to walk back east to tbe town of Okarcbe and there take a train back to Enid. This chance coming in contact with Donahogan and Humes was the cause of his arrest; he being mistaken for the third man that defendant says was with Donahogan and Humes when they first met, but whom defendant says deserted them shortly after, by joining and riding with a man who was hauling a load of wheat along the public highway north and south. Defendant had several witnesses, friends of his in the city of Enid, also his mother, who lived there, whose testimony, if they were not mistaken as to dates, tended to substantiate the alibi. The defendant also introduced some witnesses who testified that while defendant lived in the country on a farm near Enid his general reputation as a law-abiding citizen was good, the evidence further discloses that defendant had moved from this farm- about 15 months prior to this offense, and in the meantime had spent considerable time in the state of Wyoming.
    In rebuttal the state introduced several witnesses who testified to contradictory statements made by the defendant as to his whereabouts on the day and night of the 28th day of August, 1918. A witness was also introduced by the state who testified that defendant was seen in the town of Geary, Okla., about noon either on the 27th or 28th day of August, 1918. There are other facts and circumstances in the evidence tending strongly to the conclusion that the defendant was one of the men who burglarized Cotton’s garage in Greenfield on the night between the days of the 28th and 29th of August, 1918. We deem it unnecessary to give a detailed statement of these additional facts and circumstances.
    George W. Buckner, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty; Gen., for the State.
   MATSON, J.

(after stating the facts as above). While the petition in error includes some six assignments as grounds for the reversal of this judgment, no brief has been filed by-counsel for the defendant. However, when the cause was called’ for submission, counsel appeared and orally 'argued the ease, devoting their time to the insufficiency of the evidence to support the verdict and judgment. It was strenuously argued by counsel that the great weight of the evidence, as shown by the record, supports the alibi of the defendant. The evidence is directly in conflict. If the witnesses for the state are to be believed, their testimony leads unerringly to the conclusion that the defendant is guilty of the offense. On the contrary, if the testimony of the defendant’s witnesses is to be believed, he was in an entirely different place, and could not have been a participant in the crime. This conflict in the evidence was for the sole determination of the jury. The jury having decided the issue adversely to the defendant, it is not the province of this court to substitute its judgment for that of the jury because of a sharp conflict in the evi-, dence. The jury’s decision on questions of fact must stand where there is credible evidence in the record, reasonably leading to the conclusion that the defendant is guilty as charged. Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Rhoades v. State, 16 Okla. Cr. 446, 184 Pac. 913; Hodges v. State, 16 Okla. Cr. 183, 182 Pac. 260.

The instructions of the trial court were exceedingly fair to the defendant, and fully covered the law of the case. The trial court’s ruling on the admission of evidence was likewise fair; in fact an examination of this record convinces the court beyond question that the defendant was accorded a fair and impartial trial, and that the evidence is sufficient to sustain the judgment. For reasons stated, the judgment is affirmed.

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


text:
    WILEY M. BURNS v. STATE.
    No. A-3726.
    Opinion Filed April 3, 1922.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 302.))
    (Syllabus.)
    1. Tria! — Charge on Circumstantial Evidence not Required1 Where Killing Admitted. In a murder case where the defendant admits the hilling, a charge on circumstantial evidence is not required.
    2. Trial — Better Practice not to Define Reasonable Doubt, It is
    better practice for trial courts not to define the term “reasonable doubt.” The term itself is reasonably well understood by jurors, and most definitions given for the term have no real tendency to enlighten its meaning.
    3. Same — Defining Reasonable Doubt not Reversible Error. Where the trial court defines the term “reasonable doubt” in the general charge to the jury, and the definition given is not incorrect nor misleading, no reversible error appears.
    4. Homicide — Review—Errors Assigned in Petition in Error but not Referred to in Brief. In a prosecution for murder, assignments of error contained in the petition in error but not referred to in the brief of appellant will be examined. In this case, after an examination of all the alleged errors assigned, the judgment is' affirmed for the reason that none of the alleged errors are of a prejudicial nature such as should result in a reversal of the judgment.
    Appeal from District Court, Cboctaw County; G. M. Barrett, Judge.
    Wiley M. Burns was convicted of murder and sentenced to imprisonment for life, and appeals.
    Affirmed.
    Warren & Warren, for plaintiff in error.
    The Attorney General and E. L. Pulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Choctaw county, wherein on the 1st day of November, 1919, plaintiff in error, hereafter referred to as defendant, was convicted of the murder of one M. 0. Hornbeck and sentenced to imprisonment in the penitentiary for life.

« The killing occurred near the village of Fallon in Choctaw county on the evening of the 9th of September, 1919. Defendant and deceased were brothers-in-law, the widow of deceased being a sister of the defendant. Defendant was living with the deceased and his wife on a farm just north of the village of Fallon, and they were jointly engaged in raising a crop on said farm. Prior to the killing a certain difficulty had arisen between them, according to the testimony of the defendant, concerning the disposal of the corn crop and some of the live stock. The killing occurred between the hours of 8 and 9 o’clock at night. Deceased and his wife on that evening were in attendance at a religious meeting held in an arbor at the village of Fallon. According to the testimony of witnesses, it was only a few hundred yards from the place where the religious meeting was being held to the house of the deceased. Shortly after the meeting convened, the deceased was seen to leave it and depart in the directtion of his house. In a few minutes thereafter some of those at the meeting heard five shots fired apparently at or near the deceased’s home. In about 30 minutes thereafter the defendant appeared at the meeting and called out' the deceased’s widow, and together they departed in the direction of the home of the deceased. In about 30 minutes thereafter the widow of the deceased returned to the meeting and announced to some parties there that her husband had been killed. Thereafter some of the persons attending the meeting went to the home of the deceased, and his body was found lying in the yard south of the house near a well or cistern. The deceased had been shot at least three times, twice in the upper and back part of the head on the left side, and once in the left side through the left arm, all of said bullets ranging from left to right and slightly downward. Blood and some brains were found spattered over the platform and curbing around the well or cistern. The deceased’s body was lying in an east and west direction with head to the east, and the head was about a foot and a half from the platform of the well. The body was lying on its stomach and left side of the face with the hat of deceased under the head, and only one bullet hole was found in the hat. The left arm was beneath the body and the right arm was extended from the body, and an open knife was found in the right hand of the deceased, and the lining of the right trouser’s pocket of the deceased! was pulled out about two inches. There was a porch extending along the entire south side of the house. This porch was higher than the surrounding ground froni one to three feet and was some higher than the platform •at the well. The entrance to the premises was from the west, and it was the theory of) the state that the deceased had been shot from the house or from the porch of the house, either while he was at the well to) get a drink or approaching the well for that purpose, and the location of the wounds and their course and other physical facts tended strongly to substantiate this theory.

The defendant admitted the killing, and his testimony as to the things that occurred at the time of the killing was substantially as follows:

Q. You are the defendant in this ease? A. Yes, sir.
Q. How old are you, Mr. Burns? A. 49.
Q. I want you now in your own language to tell the jury what took place between you and the defendant on the day out there before the killing took place, out there at the house, A. Why, he told me I would have to leave home, and for me to go away.
Q. Now tell the jury how it came about that those remarks were made to you about leaving home. A. Well, he was in the habit of going away and staying two or three weeks at a tíme, and he came back, and corn was ready to gather, and I asked him if he was going to help gather that corn. He said it didn’t make any difference to me whether he did or not. He told me that he didn’t think I would gather any crop there; that I had better get out. So, I told him I intended to take out when I got my crop gathered; he said, “You will not stay here to gather that crop.” I see that I couldn’t get along with him, so I come to Hugo. There was a man that I had been talking with trying to sell him my mule and crop; he was out of town, and I couldn’t see him—
Q. Who was that man? A. Cash; he runs a livery barn here in Hugo. So, he was out of town and I couldn’t see him. I got to studying over the matter and couldn’t find this man to sell my crop to. I decided that I would go down and get my clothing, suit case, and leave the place, let them have it, have no more to do with it, not to have trouble. I saw it wás impossible to stay. So, I took this night when they was supposed to be at church. I guess it was about 7 o’clock when I got back home. • I was in the drawer getting clothing and fixing up my suit casie to go away- I stepped to the door, and this man, Hornbeek, come up to the house through the lot. He come right up until he got into the gate, and he commenced fussing. He called me every vile name that a man could call one, and he says, “You are back here?” I says, “There is no chance to get along with you,” and I decided I was going to leave the whole thing, “I am willing to lose the whole thing.” He says, “You made one trip too many.” He says, “You know what I told you this morning before you left.” He says, “I am going to do to you just what I told you I would] do,” and at that he jerked his knife out of his pocket and started up on the porch for me; of course, I was scared, and I started shooting. I fired until I stopped him and he fell, and I put the gun up, went down to the church where my sister was, and told her what had happened.
Q. You say you had come to Hugo that evening, how did you go back? A. In a wagon.
Q. "With whom? A. He was a nigger; I don’t know what his name was.
Q. Where did you quit the wagon? A. About 40 yards west of the 'arbor. They! was holding meeting. There is an old road there. I took this old road, passed within probably BO or 40 yards of the arbor. That is the nearest way from the main road to where I lived.
Q. Now, you may tell that jury why you shot Ode Horn-beek. A. I shot him because I thought he was intending to kill me. He told me that he would kill me and drew a knife and started at me. I couldn’t see any way out of it.
Q. How many times did you shoot? A. I don’t know how m'any times I fired.
Q. Now, did you shoot and then wait two or three minutes longer and then fire two shots? No, sir; I didn’t.

The testimony of the defendant is in conflict with that of the state’s witnesses as to the interval between the third and fourth shots. All the witnesses who gave testimony for the state testified that the first three shots were fired in rapid succession, and that there was an interval of two or three minutes between the third and fourth shots, and that the fourth and fifth shots were fired in rapid succession. The location of the wounds on the body of the deceased and their course clearly indicate that the deceased could not have been coming at the defendant with a knife at the time he was shot, and the location of the body and of the places where blood and brains were found indicated that the deeeasted could not have been closer than from eight to twelve feet to defendant if ihe defendant shot him from the porch as testified to by him; and, further, the hat of the deceased was powder burned at the point of the entrance of the bullet to it, indicating that one of the shots at least that entered the head was fired at close range and from the side or rear. It was the theory of the state that the deceased had been shot in the head probably after he fell to the ground, and that the defendant had pulled the knife out of the deceased’s pocket and placed it in his right hand, and the physical facts were such as to authorize the jury to reach this conclusion. We think the evidence amply sufficient to sustain the verdict and judgment.

It is first contended that the trial court erred in refusing to give a requested instruction on the law relative to circumstantial evidence. In the case of Foster v. State, 8 Okla. Cr. 139, 126 Pac. 835, it is held:

"In a murder case, where the defendant admits the killing, or where there is direct evidence that the defendant killed the deceased, a charge on circumstantial evidence should not be given.”

In view of the fact that the defendant admitted the killing in this case, an instruction on circumstantial evidence was not required. It was- no error, therefore, to refuse to give a requested instruction on that subject.

Secondly, it is contended that the trial court erred in giving an'instruction defining the term "reasonable doubt.” It is not contended that the definition of "reasonable doubt” as given by the trial court was erroneous, but that in a case like this, where the conflict in the testimony is only by circumstances, any definition of "reasonable doubt” might mislead the jury.

This court has repeatedly said in numerous decisions that the better practice is never to define the term "reasonable doubt,” that the term itself is reasonably well understood by jurors, and that most definitions given for the term have no real tendency to enlighten its meaning.

But this court is not authorized to reverse a judgment of conviction even for the giving of an erroneous instruction unless the same probably resulted in a miscarriage of justice. Section 6005, Rev. Laws 1910. A fortiori, the court would not be authorized to reverse a judgment of conviction for the giving of an instruction defining the term “reasonable doubt” which is not contended to be an incorrect definition of that term. The instruction given finds support in the following decisions of! this court: Scribner v. State, 11 Okla. Cr. 189, 144 Pac. 626; Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 375, 107 Pac. 735; McDaniel v. State, 8 Okla. Cr. 209 (219), 127 Pac. 358.

The petition in error contains other assignments of error, but the same are not supported by argument or the citation of authority in the brief of the defendant. In view of the fact that this is a conviction for murder with life imprisonment assessed as punishment therefor, the court has taken occasion to examine the record with relation to those alleged errors, and the conclusion is reached that none of the errors assigned are of a prejudicial nature such as should result in a reversal of the judgment.

The judgment of conviction is therefore affirmed.

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


text:
    I. M. HINCHEE v. STATE.
    No. A-3477.
    Opinion Filed May 29, 1920.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 295.)
    Appeal from District Court, Tulsa County; N. E. McNeill, Judge.
    I. M. Hinchee was convicted of the crime of forgery, and sentenced to serve a term of one year in the state penitentiary, and she I appeals.
    Affirmed.
   PER CURIAM.

Plaintiff in error was convicted of the crime of forgery, and her punishment fixed as above stated. This appeal has been pending in this court since October 26, 1918. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted.

Rule 9 (12 Okla. Cr. viii, 165 Pac. x); of this court provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment. ’ ’

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment; and the same is therefore affirmed.


author: HOYLE, J.

text:
    C. C. HOLDREN v. STATE.
    No. A-4438.
    Opinion Filed Jan. 13, 1923.
    (211 Pac. 436.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole by Appellant.— When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a parole, and the same is granted, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, McIntosh County; Harve L. Melton, Judge.

      C. C. Holden was convicted of obtaining money and property by false pretenses, and he appeals.
    Appeal dismissed.
    Eaton & Carter and C. H. Tully, for plaintiff in error.
   HOYLE, J.

Upon an information charging plaintiff in error, C. C. Holdren, O. F. Barkley, and Mrs. C. C. Holdren with the crime of obtaining money and property by false pretenses, in that on the 2d day of August, 1921, in said county and state, they did designedly, fraudulently, and feloniously obtain from one I. E. Trindle the sum of $750 in money and one Hupmobile automobile of the value of $1,100.

The plaintiff in error, C. C. Holdren, was convicted, and his punishment fixed at imprisonment in the penitentiary for the period of one year. From the judgment rendered on the verdict on the 8th day of May, 1923, an appeal was perfected by filing in -this court on August 28, 1922, a petition in error with case-made.

Pending the determination of the appeal on November 14, 1922, a parole was granted and accepted by the plaintiff in error.

The uniform holding of this court is that, when the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed, and when an appeal from a judgment of conviction is pending in this court, and plaintiff in error applies for a parole, and the same is granted, and the fact that a parole has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the district court of McIntosh county.

MATSON, P. J., and BESSEY, J., concur.


text:
    A. C. FLOWERS v. STATE.
    No. A-3974.
    Opinion Filed Nov. 28, 1922.
    (210 Pac. 1118.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    A. C. Flowers was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Bond & Morris, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Jen., for the State.
   PER CURIAM.

Plaintiff in error and Denny Swan were by information jointly charged with unlawfully conveying iy<2, gallons of whisky from a place unkown to a place about two miles east of Owl City, in Stephens county. Upon his separate trial the plaintiff in error, Flowers, was convicted, and his punishment fixed at a fine of $400 and confinement in the county jail for 30 days. From the judgment rendered on the verdict on the 22d day of February, 1921, an appeal was duly perfected. The errors assigned question the sufficiency of the evidence to support the verdict. An examination of the record shows that the testimony of the witnesses for the state support the allegations of the information, and that no testimony was offered on the part of the defense, and it is apparent that the errors assigned are destitute of merit. The judgment of the trial court is therefore affirmed. Mandate forthwith.


text:
    ELIZA OWENS v. STATE.
    No. A-4028.
    Opinion Filed Nov. 28, 1922.
    (210 Pac. 1119.)
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Eliza Owens was convicted of a violation of the prohibitory law, and she appeals.
    Affirmed.
    J. W. Dean, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Eliza Owens, and George Owens, her husband, were jointly charged with the unlawful possession of 16 gallons of Choctaw beer, a malt and intoxicating liquor, with the unlawful intention of selling the same. Upon her separate trial plaintiff in error, Eliza Owens, was convicted, and her punishment fixed at a fine of $50 and confinement in the county jail for 30 days. No brief has been filed. Numerous errors are assigned in the petition, but from an examination of the record our conclusion is that the errors assigned are destitute of merit. The judgment of the trial court is therefore affirmed. Mandate forthwith.