author:
DOYLE, J.
      Deemer, J.,

text:
    STATE v. J. M. RULE.
    No. A-2274.
    Opinion Filed December 19, 1914.
    (144 Pac. 807.)
    1. EVIDENCE — Other Offenses — Res Gestae. 'As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:
    (a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
    (b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or .teuds to prove him guilty of another and distinct offense.
    (c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.
    (d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.

      (e) In support of an information, charging the filing of a false claim with intent to defraud the state, and that by such false pretense the defendant did obtain from the State Auditor a warrant for the amount of the claim, evidence is admissible of other instances when he did the same thing, as tending to show guilty knowledge or intent, and that the offense charged was a part of a plan or scheme to cheat and defraud the state.
    2. TRIAL — Offer of Evidence — Statement of Purpose — Instruction. Where evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered, and, if it is admissible for that purpose, the trial court should instruct the jury as to the purpose for which they may consider it.
    3. WITNESSES — Documentary Evidence — Admissibility—Res G-estae —Admission Against Interest. On the trial of an information in two counts, the first charging the larceny of a state warrant, the second charging the filing of a false claim with intent to defraud the state, and that by such false pretense the defendant did obtain from the State Auditor said warrant, the proof showed that defendant secured a contract to do legislative printing, and employed the W. Printing Company to do the said printing, that said company, delivered to defendant claims against the state for the amount of printing delivered, that the warrant in question was secured by the defendant upon one of these claims, one item of which had been raised from 282 House Journal pages at $1.10 a page to 730 pages at $1.10 a page. It also appeared that three other similar informations were pending against defendant at the time of the trial. The president of the W. P. Go. testified that the claims against the state were made out from the books of the W. P. Co.; that the entries therein were made in the usual course of business by witness and by the secretary and by an employee; that he knew the entries were correct when made; that he had no- present independent recollection of the entries in the books or in the claims delivered to the defendant. The secretary testified that when the entries were made they were correct; that the entries relating to the claim upon which the warrant in question was obtained were made by witness, Another witness testified that some of the entries were made by him as an employee of the W. P. Co., and the entries so made were correct; that he assisted the president and secretary of the company to count the pages of printing done, and knows that the entries wore correct when made. During the examination of each witness the book with the entries therein was offered in evidence by the state. To the use of the book in evidence the defendant objected. The court sustained the objections, and excluded the evidence offered. The president of the W. P. Co. was recalled and stated that without the book he could not state the facts stated therein. He was then asked to refer to the book to refresh his memory and state the amount of legislative printing done, which, on the defendant’s objection, he was not permitted by the court to do. The state reserved objections to the rulings of the court. Held:

      (a) That said book, with the entries therein, was admissible, not only as independent evidence of facts forming a part of the res gestae, but also as declarations or admissions made by the defendant against his interest; and further held that, on the testimony of witnesses that the entries therein were made in the usual course of business, and known by them to have been correct when made, said book with the entries therein was competent and admissible as evidence of the facts therein stated.
    (b) Held, further, that, whether the witness retained a present independent recollection of the facts therein stated or not, the witness had the right to refresh his memory by consulting on the witness stand the entries in said book, and the same was also admissible as a means of verification or confirmation of what the witness stated from memory.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma Cou'nty; John J. Carney, Judge.

    J. M. Rule was acquitted of grand larceny and obtaining a warrant under false pretenses, and the State appeals on questions reserved. Questions answered in opinion.
    This case comes to this court under the third subdivision of section 5990, Rev. Raws, upon exceptions taken by the prosecuting attorney to certain rulings of the trial court," excluding evidence offered by the state.
    The facts of the case, as shown by the record, are as follows: On the 5th day of December, 1913, the county attorney of Oklahoma county filed an information in the district court of said county, containing two counts. In the first count the defendant was charged with the crime of grand larceny committed in taking by fraud and stealth a certain state warrant, described in the information, payable in the sum of $1,310.20. In the second count the defendant was charged with the crime of obtaining the said warrant under false pretenses. On January 15, 1914, the case proceeded to trial.
    It appears that on the 13th day of January, 1911, the Third Legislature of the state of Oklahoma was in session, and, by resolutions of the House and Senate, the standing committees on legislative printing were instructed to let a contract for the legislative printing of the 1911 session of the Legislature. Bids were received for the printing, among which was the bid of the defendant, J. M. Rule. It was determined by the committees to award’ the contract to the defendant, and agreeably to the laws and regulations prevailing in such matters, the Board of Public Affairs of the state of Oklahoma was directed to enter into a written contract with the defendant for the legislative printing, and on said 13th day of January, 1911, a contract was entered into between the Board of Public Affairs and the defendant; the contract being prepared in two parts, or separate contracts, one for the House printing and one for the Senate printing, at certain prices therein named. The defendant employed the Warden Printing Company of Oklahoma City to do tlie printing at prices agreed upon.by a verbal contract entered into between the defendant and the Warden Printing Company, and they entered upon the discharge of this contract and performed certain services for the defendant.
    Payments were not made at any stated time, but from time to time, as the work progressed; the company rendered its bills showing the amount of printing delivered to the Legislature since the last previous statement. For the purpose of having its bills presented in regular form, the Warden Company obtained from the Board of Public Affairs the blanks which are prescribed for use in presenting bills for materials and supplies to the state. In each instance, when a bill was made out, it was made by the Warden Printing Company on these blank vouchers, and was made in triplicate. Each voucher showed the number of pages of each separate class of printing, the contract price per page, and the aggregate amount of the items in each bill; the Warden Printing Company retaining one of tlie copies for its use in its settlement with defendant under his contract with the company, and delivering to the defendant the remaining two copies of the vouchers, which, after being properly certified and sworn to by him according to the regulations of the State Auditor’s office and of the office of the Board of Public Affairs, were to be filed by him, -one copy with the Board of Public Affairs, and the other copy with the State Auditor. The warrant in question was issued upon one of the vouchers so filed, and, upon comparison of the vouchers filed with the Board of Public Affairs and the State Auditor with the copy retained by the Warden Printing Company, it was ascertained that, after delivery of the two triplicates to the defendant, the items purporting to show the number of pages of House Journals printed as made by the Warden Printing Company and delivered to the defendant had been raised from 282 pages at $1.10 a page to 710 at $1.10 a page; that the aggregate amount for printing the said House Journals was raised from $310.20 to $781, and that the gross amount had been raised from $839.40 to $1,310.20, and that the defendant presented said voucher so raised and filed one copy thereof with the State Board of Public Affairs and a duplicate copy with the State Auditor; that the claim was allowed for the amount shown on the face of the voucher, $1,310.20; and that the defendant in that way received his warrant for that amount. A copy of the voucher upon which the warrant in question issued is set out in the information in words and figures as follows:
    Order No. Contract 123, Claim No. 10806. Original. March 7th, 1911.
    The State of Oklahoma in Account with J. M. Rule, Address Oklahoma City, Okla.
    For supplies as follows: Department Legislative House, Fund Leg. Contg.

    Checked and Found Correct for $1,310.20.
    Approved by (Reed) Remark Received by R. D. Elkins
    O.K. G. A. Crossett.
    S. F. Whitman, Chairman.
    W. A. Durant,
    Speaker of House.
    Giles W. Farris, State Printer.

      The undersigned, upon oath doth depose and say that the above account is just, true and correct and according to law, and to the provisions of the contract under which the items mentioned therein were furnished; that the materials and supplies were furnished as therein charged and that the amount claimed after allowing all just credits, is wholly unpaid, and'that I have full knowledge of the facts herein set forth and that I am. duly authorized to make this affidavit. .
    J. M. Rule,

      Claimant.

    Subscribed and sworn to before me this the 8th day of March, 1911. Libby Goldman,

      Notary Public.

    My commission expires January 18, 1914.
    Checked and approved for-by W. N. B., Jr.
    Check and approved for $1,310.20 by-.
    Audited and approved for $1,310.20 this the 1th day of March, 1911.
    State Board oe Public Affairs,
    E. B. Howard, Chairman.

    Eugene E. Morris.
    The defendant presented to the State Auditor raised vouchers and drew three other warrants for printing done by the Warden Printing Company under the same contract and surrounded in all respects by the same circumstances. Informations were filed by the county attorney on each of the last named three transactions similar to the information filed in this case. These cases were numbered on the calendar of the district court, respectively, 3612, 3617, and 3618, and were- pending when the defendant went to trial in case numbered 3619 — the case upon which this appeal is based. After the jury had been duly impaneled and sworn, counsel for the state suggested to the court the settlement of the legal question which it was claimed was involved in the case and the determination of which, by the court, would materially influence and affect the opening, statement of the prosecuting attorney to the jury, and, for the purpose of determining the question, it was deemed advisable by the court, as well as the parties, that the jury be excused until the question could be presented. It was then stated by the prosecuting attorney that the question for the consideration of the court was this:
    “That the prosecutor claimed the right, and so proposed to state to the jury, that, as bearing upon the intent of the defendant at the time when he committed the acts charged in the information, the prosecutor would introduce evidence showing other transactions on the part of the defendant between the same parties and arising out of the same transaction, and proposed to state to the jury that these other acts were to, be 'offered for the sole purpose of showing the criminal intent on the part of the defendant at the time when he committed the acts charged in the information in this case.”
    The court held that, in making the opening statement and in the introduction of.evidence, no statement should be made concerning other purported misappropriations of the state’s funds, and evidence of the same would not be admitted. This ruling of the court was excepted to and constitutes what is alleged by the plaintiff in error to be a material error in the trial.
    When the prosecuting attorney had made his opening statement, counsel for the defendant elected to then make the statement of the defense and what the evidence would show, the material part of which is as follows:
    “Now, we propose to show that Mr. Rule’s statements of this' account were correct; that the property was actually delivered there — not alone by our own testimony but by -the testimony of the state’s witnesses themselves. Now, why — there is the bill — I mean the claim, prepared and delivered to the officers of the House. Now, this is a part of the state’s case, gentlemen — received by R. D. Elkins — that proof will develop that he was Auditor of the House — not Auditor, I mean the property man of the House. We will prove by R. D. Elkins, or his first assistant — their testimony — the assistant by which that audit was made — that this- property was delivered, counted page by page and copy by copy, and that this notation here, ‘Received by R. D. Elkins,’ is the result of a careful audit made by Mr. Elkins and his particular department. It will develop that G. A. Crosscut was the chief clerk of the House, and on this bill (the basis of the prosecution) will be found the O.K. of G. A. Crosscut. I would like to have the actual claim, Judge Thompson, in this case. (Judge Thompson hands to Mr. Ready.) Mr. Ready (continuing): Here is the original bill or claim upon which this prosecution is based. ‘Received by R. D. Elk-ins.’ Now it will develop that G. A. Crosscut was chief clerk of the House. You see G. A. Crosscut’s signature and his O.K. on that claim. G. A. Crosscut, if necessary, will testify before you as to what was done — what investigation he made. Now, G. A. .Crosscut will appear here, ánd it will appear from his testimony that he made a thorough investigation of this printing; that he was satisfied that this bill was proper in its presentation, for the amount of -printing delivered for the' price charged. It will develop during the trial of this case that Mt\ S. F. Whitley at that time was a member of the House of Representatives; that he had the position of chairman of the committee of public printing; that he made certain investigations and O.K.’d this bill: ‘S. F. Whitley, Chairman Committee of Public Printing.’ We will prove that S. F. Whitman signed that. It will develop further — a matter that you already are aware of — that Mr. W. A. Durant was the Speaker of the Third Legislature. It will develop in the proof that this is his signature: ‘W. A. Durant, Speaker of the House.’ You see on this particular bill, gentlemen, checked and found correct, for $1,-310.20: ‘Giles W. Farris, State Printer.’ It will develop in the proof that Mr. I-Iem-y McGill, who was at that time Assistant State Printer, signed that name. It will develop in his testimony that he personally checked each page and copy of this printing. It may develop that he checked this together with Mr. W. M. Brown, Jr., the chief clerk of the State Board of Affairs; that Mr. Brown will testify he made this investigation, checking accurately each page of printing done, as shown by this bill. You will see on this bill checked and approved for $1,310.20, W. M. B., Jr. It will develop in proof that Mr. W. M. B., Jr., is Mr. W. M. Brown, Jr., of the State Board of Affairs. On this same bill you will find E. B. Howard and Eugene Morris; those are the signatures of those two gentlemen who were at that time, and I think are at this time, members of the State Board of Affairs. This contract was originally entered into between Mr. Rule and this State Board of Affairs. It will develop that Mr. Rule, after the approval of this claim, called at the State Auditor’s office and inquired if there were any warrants there for him; that there were warrants there; that they were delivered to him and upon the warrant calendar in the presence of the State Auditor or his assistant, J. M. Rule signed for those warrants. Now, gentlemen of the jury, I mean at this time only to give you a general idea to what the defendant expects to prove in this case —we are here charged with two offenses, grand larceny of those two warrants, that the proof will develop that we signed for and receipted 'for and the obtaining of this property — of these particular warrants under the alleged false pretenses that we did not deliver this property to the state Legislature, although O.K.’d by every officer in charge of the department to which this was delivered and by every department of the state which this claim affects ”
    It further appears that in the progress of the trial it was shown by the officers, managers, and employees of the Warden Printing Company that the company kept, in the regular course of its business, a set of books, showing its transactions, and that in said book there was a record of all matter pertaining to the printing done under the contract alluded to in this case; that said records showed the date of printing, the actual amount of printing, and all necessary information. The books were offered in evidence for the purpose of proving the facts contained in them, and, on objection made by the defendant, they were excluded, and the question was reserved by the state for the consideration of this court.
    When the state rested its case, the defendant moved ■ the court to advise the jury to return a verdict of not guilty. Thereupon tjie court, without requiring the state to elect upon which count it would stand, instructed the jury as follows:
    “Gentlemen of the jury, you now are advised by the court that under the present state of the case it is the opinion and advice of this court that you should return a verdict of not guilty against this defendant. I will state to you that this advice of the court you are not absolutely compelled to follow, but you are advised that you shall go to your jury room, select one of your number as foreman, and there you may, if you so desire, find the defendant not guilty, or guilty, or disagree, as you gentlemen think proper according to your individual opinion. But you are advised by the court that it is the opinion and judgment of this court that the defendant is not guilty and that you should return a verdict accordingly.”

      The jury returned their verdict finding the defendant J. M. Rule not guilty. The court rendered judgment discharging the defendant.
    An appeal was perfected upon the questions reserved'by the state by filing in this court on the 26th day of May, 1914, a petition in error with case-made.

      D. K. Pope, Co. Atty., and H. Y. Thompson, Asst. Co. Atty., for the State.

      Vaught & Ready, Stuart, Cruce & Cruce, and McAdams & Haskell, for defendant in error.
   DOYLE, J.

Counsel for plaintiff in error in their brief state:

“The questions which the state desires to present to the court for its consideration in this case are as follows:
“First. For the purpose of showing criminal intent, can other transactions, similar in character and arising between the same parties and out of the same transactions, be introduced in evidence in the trial of a criminal cause?
“Second. Are books, kept by a person, firm, or corporation in the usual course, of business, after being properly verified, receivable in evidence as proof of the facts therein stated, in the trial of a criminal cause?
“Third. In the trial of a criminal cause, does the law forbid the use of a book after proper authentication, by a witness, for the purpose of refreshing his memory?”

We will consider and answer the questions presented* in the order in which they are set forth.

As a general rule; evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. The reason for the rule is that no person shall be convicted of an offense by proving that he is guilty of another. To this rule, however, there are exceptions, which are well stated in Cyc. They are in part as follows:

“The general rule does not apply where the evidence of another crime tends directly to prove defendant's guilt of the crime charged. Evidence which is relevant to defendant’s guilt is not -rendered inadmissible because it proves or tends to prove him guilty of another and distinct crime. It often happens that two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one evidence proving it can not be excluded because it also proves the other. Evidence of another and distinct crime is admissible if it was committed as part of the same transaction and forms part of the res gestae
“Where the nature of the crime is such that guilty knowledge must be proved, evidence is admissible to prove that at another time and place not too remote the accused committed or attempted to commit a crime similar to that charged.”
“Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves or tends to prove the particular intent is competent, and cannot be excluded because it incidentally proves an independent crime. Where the question is whether a certain act was intentional or accidental, evidence to show that accused intentionally committed similar acts before is relevant to show intent.”
“Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time and of similar character is relevant and admissible to show the knowledge and intent of the accused and that the act charged was not the result of accident or inadvertence. This rule is often applied where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent for the purpose of showing this intent.” '(12 Cyc. pages. 406 to 411 inclusive.)

Says. Prof. Wigmore:

“To prove intent, as a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal. element likely to be the true explanation of them. * * * In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i. e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. * * * It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done, —either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act. in question was done with innocent intent.” (Vol. 1, sec. 302, Wig-more on Evidence.)

We are of opinion that evidence of other similar transactions under the same contract, whether before or afterwards, was relevant to the issue, and was not made inadmissible by reason of the fact that it would tend to prove the defendant guilty of another offense than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge, or the intent with which the act charged was committed. They were acts of the defendant in a continuous series of transactions with the same party under the same contract, and were precisely of the same character as the act for which he was being tried, and they were so connected that they formed a part of the res gestae, and were a part of the entire transaction under the defendant’s contract to do the legislative printing for the House of Representatives. It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former. We think the evidence offered was clearly admissible under the first three of the exceptions stated above. It seems to us that the evidence offered was also admissible under the fourth exception stated above, for the purpose of proving a pre-existing design, or systematic scheme or plan, on the part of the defendant to cheat and defraud the state, which included the doing of the particular act charged.

In the case of Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, this court said:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.”

The question of controlling importance which is raised upon this appeal is the admissibility of the books of the Warden Printing Co., as offered in evidence by the state, and upon the defendant’s objections excluded by the trial court.

The contract of the defendant required that on each legislative day he should furnish two hundred copies each of the House Journal and Calendar, and two hundred copies of all bills ordered printed.

S. R. AVarden testified that he was president of the Warden Printing Company, that the defendant employed the Warden Printing Company to do the legislative printing required under his contract with the state, and the Warden Printing Company did the same. That the bills or vouchers for said printing were made out in triplicate and delivered to the defendant, except that one copy was retained for settlement with the defendant; that these bills were made out from the books of the Warden Printing Company. That the entries in the books were made by witness and by Mrs. Warden, who was secretary and treasurer of the Warden Printing Company, and by ah employee, D. V. Canuth; that the entries were made in the regular course of business. That when the entries were made in this book of original entries he counted the pages and checked them up and made a correct entry; that the claims or vouchers furnished the defendant for legislative printing were correctly made out in accordance with the number of pages printed as shown by the entries in this book. That he had no independent recollection of the number of House bills, journals, and calendars, or the number of pages contained in each as set forth in the claims so furnished. That the defendant settled with the Warden Printing Company on the basis of the claims so made out and delivered to him by the company.

The state then plfered in evidence the book which, for the purpose of identification, .was marked “Exhibit H.” The defendant’s objection to the admission of the book in evidence was sustained. Thereupon the state offered in evidence that part of the book containing the entries as made by witness. The defendant’s objection was sustained.

Mrs. S. R. Warden testified that as secretary and treasurer of the company she had general supervision of the bookkeeping during the session of the Third Legislature; that the book marked “Exhibit PI” was a book of original entries; that the entries indicating the number of pages in the claim in question were made by witness; that when she made the entries she counted the pages and made a correct entry of the number of pages. That Mr. Warden and Mr. Carruth assisted her. That before the claims were delivered to the defendant she counted the pages, listed them, checked them back again and compared them with the entries and found them correct; that she verified each claim “to be sure that they were just as we had gone over them,” and then added the total on the adding machine. That independent of the entries, or without the use of the book, witness would not be able to tell the number of pages charged in any one of the claims.

D. V. Carruth testified that part of the entries in the book “Exhibit IT” were made by him as an employee of the Warden Printing Company. That he would always take two copies of each bill or calendar or journal and place them in the tracer, which was an envelope containing the number of the order, and which was filed to go to Mrs. Warden when she made out the claims. That when he made the entries in the book he counted the number of pages of each bill, calendar, and journal, and the entries so made by him were absolutely correct.

The state offered in evidence that part of the book containing the entries upon which the claim in question was made out. The court sustained the defendant's objection thereto. The state again offered in evidence the book “Exhibit PI.” The court sustained the defendant’s objection and excluded the same. The court below seems to have excluded the evidence offered on the ground that it was hearsay, and. that its admission would violate the defendant’s constitutional right to be confronted with the witnesses against him.

The learned counsel for the defendant in their brief contend :

“Even though identified as the books of the Warden Printing Company, and as having been kept in the regular course of business, they were not admissible as original evidence in this proceeding, for the reason that they were books kept by a third party, and over which the defendant had no control or supervision, and for the further reason that their introduction would have deprived the defendant of his constitutional right to be confronted with the witnesses against him.”

. We think that these contentions are obviously untenable. The competency of the book “Exhibit PI” is clearly established by the testimony, and it should have been admitted on the same ground that any relevant and material documentary evidence, proved to be competent, is admitted.

It appears that the defendant confided the entire business' of doing the legislative printing under his contract with the state to the Warden Printing Company. The book contained a detailed statement of the items showing the printing done under the defendant’s contract with the state, the entries in which were testified to be correct by the persons who made them. These entries show the number of each order, the date of the legislative day for which House calendars and journals were printed, and the number of pages of each calendar and journal. Also the number of House bills printed, the number of pages of each House bill, the official number of the bill, and the date of delivery of each order.

It also appears that the defendant settled with the Warden Printing Company according to the entries in this book. This in itself is sufficient to show the delivery of the printing, so done, to the state. If he had secured the warrant in question from the State Auditor, upon a raised claim or voucher, and had secured other warrants upon other raised claims or vouchers and subsequently settled with his agent or employee, the Warden Printing Company, upon the claims or vouchers as originally made out and delivered to him by the Warden Printing Company, it would follow almost necessarily that the defendant knew the claim or voucher in question had been raised and was false when he obtained from the State Auditor the warrant for the amount of the claim.

The statutory rule is found in section 5114, Rev. Raws 1910, which provides:

“Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who made the entries that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the hand-writing of the person who made the entries, in case of his death or absence from the county, or upon proof that same were made in the usual course of business.”

We are of opinion that all entries in the book offered in evidence relating to the House legislative printing, were admissible, not only as independent evidence of facts forming a part of the res gestae, but also as declarations or admissions made by the defendant against his interest. We certainly know of no decision, rule of evidence, or established principle that requires the exclusion of such evidence when offered in connection with the testimony of the persons who made the entries therein, that they were correct. The constitutional provision, Section 28, Bill of Rights, giving the accused the right to be confronted with the witnesses against him, does not apply to the proof of facts in their nature essentially and purely documentary. In the case at bar, the persons who made the entries were produced as witnesses, and the book was properly identified, and the defendant had the opportunity to cross-examine said witnesses. For this reason no question of the defendant’s constitutional right to be confronted with the witnesses against him arises in this case.

In the case of Curtis v. Bradley, 65 Conn. 99, 31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177, the Connecticut Supreme Court of Errors say:

“Regal evidence is not confined to the human voice or oral testimony; it includes every tangible object capable of making a truthful statement, such evidence being roughly classified as documentary evidence. In oral evidence the witness is the man who speaks; in documentary evidence the witness is’ the thing that speaks. In either case the witness must be competent, — i. e., must be deemed competent to make a truthful statement. And in either case the competency of the witness must be proved before the evidence is admittéd; the difference being that in oral evidence the competency is proved by a legal presumption, and in documentary evidence the competency must be proved by actual testimony, and the further difference that in oral evidence the credit of the witness is tested by his own cross-examination, while in documentary evidence the credit of the- witness is tested by the cross-examination of those who must be called to prove its competency."

It appears that after the court sustained the objection to the introduction of the books of the Warden Printing Company as evidence of what they contained, S. R. Warden was recalled and asked if he could state from memory the dates of printing, and the number of pages of printing on each date, and he said that he could not. He was then asked whether or not he could refer to the books and by refreshing his memory therefrom state the dates and the amount of printing actually done on each date, and he said that he could. He was then subjected to cross-examination concerning what memory he had, and it appears conclusively from the testimony of the witnessJ that without the aid of the books he could not state the facts, but that with the aid of the books he could correctly state the facts sought. He was then asked to refer to the books to refresh his memory and state the amount of House legislative printing done, which, on the defendant’s objection, he was not permitted by the court to do. This ruling of the court raises the third question presented. The right of a witness to refresh his memory by consulting on the witness stand memorandum or entries known to the witness to have been correctly made at the time of the transaction, is a settled and necessary rule of evidence.

As stated by Air. Underhill in his treatise on Criminal Evidence, page 267, sec. 217:

“A witness generally will be permitted to speak of those facts only which are within his personal knowledge and recollection. He may aid or refresh his memory, if it is weak or at fault, by consulting on the witness stand a writing or memorandum, whether made by himself or by another person, if, after examining it and because of what he has read therein, he is able to testify of his own recollection thus renewed and revived. The memorandum is not generally, nor need it ever be, competent evidence. Hence the question of its relevancy, or materiality, should not be considered; nor need it be read as evidence to the jury, though it seems that they may examine it to see if the recollection of the witness could have been refreshed. A witness in a criminal trial will be allowed to consult a writing to refresh his memory under the following circumstances: First. If he, while retaining no independent recollection of the facts transcribed, remembers having made the memorandum, or, when it was made by another, if he remembers having seen it, and that, when he saw it, he knew it was correct. The other class of cases includes writings which the witness does not remember having seen before, and of whose contents he has no present recollection, but, being able to identify the handwriting as his own or as that of some other person, and knowing it to be genuine, he is able on consulting the writing, and because of its aid and his confidence in -its genuineness, to swear independently, and of his own knowledge, to the facts. Suppose, for example, a subscribing witness recognizes his signature to an attestation clause of a will. His memory refreshed, he may be able to testify to the facts of acknowledgment or publication and subscription by the testator and to other accompanying circumstances, though he may have no independent memory thereof. In regard to the first class of writings, it is clear that, under certain circumstances, they are admissible as independent evidence forming a part of the res gestae!’

It clearly appears from the testimony that this is not a case of the use of a book or the entries therein for the mere purpose of refreshing the memory of a witness, but it is a case of a witness who does not profess to be able to repeat from memory the facts stated therein, but who testifies that the entries were made at the time of the transaction as it progressed, and that he knows that such-entries were correct when made. We think that it is immaterial whether the witness retained a present independent recollection of the facts therein stated or not, the witness had the right to refresh his memory by referring to the entries therein, and the book with the entries therein was also admissible as a means of verification or confirmation of what the witness stated from memory.

In Insurance Company v. Weides, 81 U. S. (14 Wal.) 380, 20 L. Ed. 894, it is said:

“How far papers, not evidence per se, but proved to have been true statements of fact, at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not be? Quantities and values are retained in the memory with great difficulty. If, at the time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as is the memory of the witness.”

The case of State v. Brady, 100 Iowa, 191, 69 N. W. 290, 62 Am. St. Rep. 560, 36 L. R. A. 693, was an indictment against an overseer of the poor for filing a false claim for furnishing transportation to a poor person with intent to defraud, and that by such false pretense the defendant did obtain from the Auditor a warrant for the amount of the claim. The Supreme Court of Iowa held that memoranda made at the time of the sale of tickets at the office of a railroad company, for a given period, although not books of account, are, when properly authenticated, admissible in evidence for the purpose of showing when and what tickets were sold.

Deemer, J.,

delivering the opinion of the court, said:

“It is contended that the lower court erred in admitting the records from the ticket office showing daily sales at the city of Ottumwa during the year 1893. This claim presents the question of most doubt in the case. It must be conceded that these records are not books of account such as the statute contemplates. They are, in a sense, expert statements made and caused to be made by the witness who identified them, and are what might properly be termed ‘memoranda’ made by the witnesses at the time of the transaction. Are these memoranda admissible in evidence, or can they be used by the witnesses who produced them simply as an aid to their recollection? This question has been given widely different answers by the courts of this country and of England. The old common-law rule seemed to be that such memoranda were not admissible; that they could be read by the witness after proper foundation had been laid, even though the witness had no recollection of the matters even after having read them. The modern doctrine, at least in this country, seems to be that such documents are admissible in evidence, and that the court will not go through the useless ceremony of having the witness read a document relating to a fact of which he had no present recollection, except that he knew it was correct when made. The previous holdings of this court on the question do not seem to be in entire accord upon the question. See Taylor v. Chicago, M. & St. P. R. Co., 80 Iowa, 431; Iowa City State Bank v. Novak, 97 Iowa, 270, 66 N. W. 186; Adae v. Zangs, 41 Iowa, 536. Without attempting to reconcile these cases, we think it sufficient to say that we are constrained to apply the modern — so called American— rule to this case, and hold that the records were admissible. The evidence showed that the agent of the Chicago, Milwaukee & St. Paul and the Wabash and Iowa Central railroads kept a daily record of the tickets sold at his office over the respective lines which he represented; that he was required to do so by a rule or regulation of the several companies; that he kept the record introduced in evidence as ‘Exhibit 8/ from March 24, 1893, to January 10, 1S94. This record stated to what stations the tickets were sold, and the day of the sale. The agent of the Chicago, Burlington & Quincy Railroad testified that he used a machine in selling tickets over his line, in which there were two pieces of paper. This machine printed a ticket, when called for, upon a piece of paper, and at the same time printed a stub, which was, in effect, a duplicate of the ticket sold. This stub was sent into the main office of the railway company, as a record of sales. He also testified that this machine prints a register at the same time. The witness presented this record made by the machine for the year 1893, printed upon the stubs before referred to, and it was introduced in evidence. This same witness was also agent for the Rock Island Railroad Company, and he testified that he personally kept a record of the tickets sold over this road during the year 1893, and that the record was correctly kept. This record was also introduced in evidence. Now, it is clear from this statement of the case that none of these witnesses could remember the number of tickets sold by them during the whole year, and it would be absolutely impossible for them to remember with certainty the places to which they sold tickets on any particular day. They would have to rely upon these records, which they identified. It is conceded that they might rely upon them, and might have read from them to the jury, although they may not have been able to remember a single sale. To use the language of Hamersley, J., in the case of Curtis v. Bradley, from the Supreme Court of Connecticut, reported in 65 Conn. 99, 28 L. R. A. 143: Tt seems to us to be pressing the use of a legal fiction too far, for a court to permit the statement made by such paper to be read in evidence, while holding that the law forbids the admission as evidence of the paper which is the original and only proof of the statement admitted. In other words, it would seem as if in admitting the paper to be so read, the court of necessity admitted the paper as evidence, and therefore, by the concurrent authority of all courts, the paper is itself admissible.’ The learned judge further said: ‘All courts recognize that right, and rightly hold that the thing used to refresh the memory is not by reason of such use itself admissible as evidence. When in the application of the rule a document like the one in question was presented to the witness and absolutely failed to refresh his memory, its exclusion as a means of refreshing his memory became'imperative; but the evidence.of the document was so clearly essential to a fair and just trial that its use in some form seemed also imperative. Instead of treating the paper as itself competent documentary evidence, resort was had to a palpable fiction; the paper is read by the witness, and the knowledge the. witness once had of the facts stated by the paper is imputed to him as still existing, and the statement of the paper is received as the testimony of the-witness, and the paper itself, the only witness capable of making the statement, is excluded. The use of such a fiction in the administration of justice can rarely if ever be justified. It is certainly uncalled for in this instance. The principles of law involved, to justify the fiction are amply sufficient to support, indeed, to demand, the admission of the document as evidence. There is no occasion to sacrifice truth in order to secure justice. As regards its admissibility as evidence, there is no substantial difference between this paper and any other tangible object capable of making a truthful and relevant statement.’ This reasoning is so cogent and logical that.we adopt it as peculiarly applicable to the case at bar, and need do nothing further than cite the following additional authorities in support of the rule: Guy v. Mead, 22 N. Y. 462; Haven v. Wendell, 11 N. H. 112; Owens v. State, 67 Md. 307, 10 Atl. 210; Donovan v. Boston & M. R. Co., 158 Mass. 450, 33 N. E. 583; People v. Dow, 64 Mich. 717, 33 N. W. 597; 2 Rice Ev. pp. 748-751. There was no error in the admission of this evidence.”

The doctrine of the foregoing cases, which has sometimes been called the American doctrine, seems to be best supported by reason and principle.

We do not deem it necessary to discuss the conflicting authorities, for we are satisfied, on principle, that the evidence in question is relevant and admissible, and that the trial court erred in its rulings excluding the same.

In conclusion it may be said that when evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered, and if it is admissible for that purpose, the trial court in the instructions given, when requested by the defendant, should instruct the jury as to the purpose for which they may consider such evidence.

ARMSTRONG, P. J., and FURMAN, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    GABRIEL NELSON v. STATE.
    No. A-2297.
    Opinion Filed January 9, 1915.
    (145 Pac. 315.)
    LARCENY — Robbery—Elements—“Larceny From the Person’’ Distinguished. To constitute “robbery,” as distinguished from “larceny from the person,” there must be force or intimidation in the act; therefore, where a thief slipped her hand into the -pocket of the prosecuting witness, and took his purse, and in doing so, without putting him in fear, used no more force than was necessary to take the purse from his person, held, that the crime is larceny from the person, and not robbery in the first degree.
    (Syllabus by the Court.)

      Appeal from District Court, Choctaw County; Simmers Hardy, Judge.

    Gabriel Nelson was convicted of robbery in the first degree, and appeals.
    Reversed.

      T. C. Humphrey, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the district court of Choctaw county, in which the defendant was found guilty of robbery in the first degree, and her punishment fixed by the jury at imprisonment in the penitentiary for a term of ten years. On the 18th day of April, 1914, judgment was rendered and the court sentenced the defendant in accordance with the verdict of the jury.

The information charges that on or about the 28th day of August, 1913:

“The said Gabriel Nelson did then and there unlawfully, wrongfully, willfully, and feloniously and forcefully take from the person of E. B. Turner certain personal property, to wit, the sum of $45, lawful money of the United States, of the value of $45, then and there in possession of the said E. B. Turner, without the consent and against the will of the said E. B. Turner by means of force and fear employed by the said Gabriel Nelson toward, on, and upon the said E. B. Turner as follows: The said Gabriel Nelson did then and there with her hands and arms seize and take hold of the said E. B. Turner, and did thereby overpower and overcome the resistance of the said E. B. Turner, and then and there took the said money in the manner and form aforesaid, contrary to,” etc.

The principal question urged on this appeal as a ground for a reversal of the judgment is the insufficiency of the evidence to warrant a conviction.

The prosecuting -witness testified that he was engaged in running a transfer hack in the city of Hugo; that he first hauled a washstand and rug to the defendant’s resort in the negro quarter of Hugo; that two or three months afterwards she passed him on the street and told him to come and get the washstand and rug, and that he went to her house. His testimony as to what occurred at the defendant's place is as follows:

“A. She unlocked the door, and I walked in, and it was sitting right where I put it and she slapped the door, too, and locked it and pulled the curtains down and asked me to do business with her. I told her no; I wouldn’t do business with her. I told her to let me out of here. T haven’t got any business in here, if that is what you are looking for,’ arid I took hold of the door, and she run her hand into my pocket and took my purse, and says, Tf I can’t get your money one way, I will get it another.’ Q. What else occurred down there, if anything? A. We run together then; of course I was trying to get my money, and in the scuffle she hollered for help, and there was a negro man came in, and he says, ‘What is the matter here?’ and I says, ‘This woman has robbed me,’ and he says, Tf she has robbed you, she has got to give your money back,’ and she says, ‘There lays your money,’ and I stooped down there and picked some of it up, and the negro ordered me out of the house, and I told him I would go out when I got my money, and I counted it, and, says I, ‘There is $17 of my money gone.’ ”

J. W. Milam testified: That he was police judge: that the defendant was arrested and brought before him and pleaded guilty to stealing $17.50 from Mr. Turner. That she related the circumstances as follows: That Turner had made improper proposals to her and wanted to have intercourse with her, and they got into a quarrel over the price; that he wanted to give her 50 cents or 75 cents and she wanted $1, and he had his pocketbook in his hand, and she either grabbed or knocked the pocketbook out of his hand. That Mr. Turner’s money was returned to him.

The defendant, as a witness in her own behalf, testified that she was about nineteen years old; that the prosecuting witness met her on the street, and said he wanted to do a little business with her, and she told him to come down whenever he felt like it; that when she returned home he was standing in her door. Her further testimony is as follows:

“Q. What did you do? A. I walked in and pulled the curtain down on the right-hand side, and on the left-hand side by the bed the curtain was already clown; I had never raised it up that morning. Q. When you got the curtain down it was pretty dark in the room? A. Yes, sir; it was. Q. Well, what took place, what about the door? A. I locked the door. I pushed it to and thumb-latched it. Q. You didn’t lock it, just thumb-latched it? A. Yes, sir, and asked him was he ready to do it, and he said ‘Yes’ and he asked me, 'What are you going to charge me?’ and I says, ‘A dollar,’ and he says: 'That is too much. I will give you a quarter.’ And I says 'No;’ and he says, ‘Well, I will give you 50 cents;’ and I says, ‘No; I won’t do that.’ And he says, ‘That’s all a negro whore is worth, two bits or 50 cents,’ and I says, ‘Well I won’t do anything.’ He says, T will give 3rou a quarter to get rid of you,’ and I says, ‘Give me the quarter,’ and I wouldn’t of took the quarter, but he put his hand in his pocket and got his pocketbook out, and I knocked the pocketbook up that way, and the money went all over the floor and the bed. Q. Did you get on the bed? A. Yes, sir; we was scuffling on the bed. Q. Well, were you mad or in a good humor? A. No, sir; I was not mad; we were both laughing. Q. It was a kind of love struggle, was it? A. Yes, sir.”

The Attorney General has filed a confession of error, based upon the holding of this court in the case of Monaghan v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149, which concludes as follows:

“When the facts in This case are considered in connection with the Monaghan opinion, we cannot say that the evidence supports the charge of robbery. It appears from the evidence that the defendant in this case did no more than did Monaghan in the reported case, except after the pocketbook was snatched there was a “scuffle” between them. We are of the opinion, therefore, that the judgment is not supported by the evidence, but that the defendant should be prosecuted for the offense of larceny from the person.”

The crime of robbery is defined in our Penal Code as follows :

Section 2364, Rev. Raws 1910:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of forcé or fear.”

Section 2365, Id.:

“To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”

Section 2366, Id.:

“When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.'’

The crime of grand larceny is defined in our Penal Code as follows:

Section 2655, Id.:

“Grand larceny is larceny committed in either of the following cases: First. When the property taken is of value exceeding twenty dollars. Second. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another.”

Here the allegation is that the property was taken by means of force and fear. There was no evidence tending to show that the prosecuting witness was put in fear, and there was no evidence of force sufficient to constitute robbery as distinguished from larceny from the person. The difference between robbery and larceny from the person of another lies in the force or intimidation used. The Legislature has formally and fully recognized the distinction by the enactment of section 2655 ’ above quoted, and if the force used was only such as was necessary to take the money from the person of the prosecuting witness, without resistance on his part, it was not sufficient to constitute robbery, as otherwise there would be no distinction between robbery and larceny from the person. State v. Paisley, 36 Mont. 92, Pac. 566; State v. Parker (Mo.) 170 S. W. 1121.

In the Monaghan case it was held that:

“To constitute ‘robbery’ as distinguished from ‘larceny from the person,’ there must be force, violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to have been taken by force and violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.”

We here repeat what is said in the opinion in that case:

“It would seem, and we would suggest, that always in a case of this character, where the line of demarcation between offenses, as in this case, has a very narrow margin, the safe practice, where the proof may be uncertain, is to charge the lesser offense.”

It follows that the confession of error should be sustained. The judgment of the court below is reversed. The warden of the penitentiary is directed to deliver the defendant to the sheriff of Choctaw county, who will hold her in custody until she shall be discharged therefrom, or as otherwise ordered according to law.

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


author: DOYLE, P. J.

text:
    GEO. CAFFEE v. STATE.
    No. A-2085.
    Opinion Filed January 19, 1915.
    (145 Pac. 499.)
    1. INDICTMENT AND INFORMATION — Verification—Sufficiency—■ Clerks of Courts — ‘ ‘Ministerial Act’ ’ — ‘ ‘Judicial Act.” In a prosecution for misdemeanor, the information was sworn to before the clerk of the court, and a motion to quash on the ground that the information is not sworn to and verified in the manner required by law was overruled. Held, that the administration of an oath of an officer authorized to administer oaths is a ministerial, and not a judicial, act, wherefore the motion to quash was properly overruled.

      2. INTOXICATING LIQUORS — Prosecution—Possession with Intent to Sell — Evidence of Reputation. In a trial for possession of intoxicating liquor with intent to sell the same, where the proof shows such possession at a place of public resort, and that such place was used for the purpose of selling intoxicating liquor, evidence of the general reputation of the place is admissible on the question of intent.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

    George Caffee was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Dc Roos Bailey, J. B- Wyand, and Chas. A. Moon, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had in the superior court of Muskogee county on the 5th day of July, 1913, in which the defendant was found guilty of the offense of having the unlawful possession of intoxicating liquors with intent to sell the same. The jury fixed the punishment at a fine of $200 and confinement in the county jail for 50 days.

The evidence shows that the defendant’s place of business was known as the “Busy Drug Store,” located at 110 North Second street, Muskogee. On the day named in the information three officers searched the place and found the defendant behind the prescription case. The defendant dropped a whisky bottle in a tub with the remark that he and a friend had just taken a drink. The officers found there 60 half pints, '14 pints, and two quarts of whisky.

Over the objection of the defendant, three witnesses were permitted to testify that they knew the general reputation of the defendant’s drug store as being a place where intoxicating liquors were sold and kept for sale.

The state introduced a certified copy of the records of the internal revenue collector showing the payment of the special tax required of liquor dealers by the United States covering the “Busy Drug Store,” “Geo. C. Caffee,” 110 North Second street, Muskogee, Okla.

The first question presented upon the record is the sufficiency of the verification. Upon arraignment the defendant filed a motion to quash the information on the ground that the same is not sworn to and verified in the manner required by law. The record shows that the information was sworn to before Robert Toomer, clerk of the superior court.

The learned counsel for the plaintiff in error contend that informations in misdemeanor cases must be sworn to before a magistrate.

Section 4288, Rev. Laws, provides that:

“The following officers are authorized to administer oaths: * * *
“Third: Judges and clerks of the district, superior and county courts within their respective districts' or counties.”

The administration of an oath by an officer is a ministerial, and not a judicial, act.

The verification as made was clearly sufficient, and the motion to quash was properly overruled.

The second question presented arises upon the rulings of the court admitting evidence of the general reputation of the de-defendant’s place of business. This question was passed on in the case of Wilkerson v. State, 9 Okla. Cr. 662, 132 Pac. 1120. In the case of Kirk v. State, ante, 145 Pac. 307, it is said:

“The Wilkerson case was a prosecution for unlawful possession with intent to violate provisions of the prohibitory law. It is held in that case, and uniformly in all cases where the offense charged was unlawful possession, that testimony tending to show that the defendant had previously sold other liquor or kept other liquor for sale is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling intoxicating liquor, the general reputation of such place is admissible on the question of intent.”

Under the facts in this case, evidence of reputation was admissible. After a careful examination of the various questions raised, we are satisfied that, under well-settled rules sustained and upheld by the decisions of this court, no prejudicial error has been committed.

Our conclusion is that the defendant had a fair trial, and was properly convicted.

The judgment of conviction is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    OKLAHOMA CITY v. TUCKER.
    No. A-2065.
    Opinion Filed January 20, 1915.
    (145 Pac. 757.)
    1. APPEALS — Municipal Corporations — Violation of Ordinance, (a) The right of the state to appeal from an adverse judgment rendered in a criminal prosecution is controlled by statute, and exists only by specific statutory authority.
    (b) The right of the state to appeal on a question reserved by the representatives of the state in the trial court is based on section 5990, Rev. Laws of 1910; but this statute does not confer the same right on municipalities.
    SAME. A legislative act granting the state the right to appeal does not "by implication grant the same right to municipalities existing under state law. The right of the sovereign to appeal must be authorized. • to
    M. SAME. An appeal which is not authorized by law will, upon proper motion, be dismissed by this court.
    (Syllabus by the Court.)

      Appeal from County Court, Oklahoma Coimty; John W. Hayson, Judge.

    Howard A. Tucker was convicted of violating an ordinance of Oklahoma City. On appeal to the county court the complaint was set aside, and the City appeals.
    Dismissed.

      J. W. Johnson, Municipal Counselor, and V. V. Hardcastle, Asst. Municipal Counselor, for plaintiff in error.

      Wright & Blinn, for defendant in error.
   ARMSTRONG, J.

This action was begun in the police court in Oklahoma City in May, 1913, by the filing of a complaint in the name of said city against Howard A. Tucker, charging, or attempting to charge, the violation of a city ordinance. A judgment was given adverse to Tucker and an appeal taken by him to the county court of Oklahoma county, as provided by law. When the cause came on for hearing in the county court, a motion to set aside the complaint was filed on behalf of Tucker and sustained by the court. From this judgment of the county court the city of Oklahoma City has attempted to appeal to this court. A motion to dismiss the appeal was filed by counsel for the defendant in error Tucker on the ground that the law in this jurisdiction does not confer the right on the city of Oklahoma City to appeal from an adverse judgment of the court below. Other grounds are set out in the motion, but they are without merit. The only question presented is: Has the city of Oklahoma City the right to maintain the appeal under the law as it now exists in this state?

Section 5990, Rev. Raws 1910, is as follows:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other: First. Upon judgment for the defendant on quashing or setting aside an indictment or information. Second. Upon an order of the court arresting the judgment. Third. Upon a question reserved by the state.”

This section of the statute specifically grants to the state the right to appeal in certain cases, but fails to confer any such rights on .municipalities. It is a well-settled rule of law that the state has no right to appeal from adverse judgments unless such right is specifically granted by either constitutional or legislative provisions. Except for the foregoing statute, the state itself would not have the right to appeal in this jurisdiction. This provision, however, does not authorize the municipalities existing under state law to exercise the right of appeal from adverse judgments rendered in prosecutions of persons charged with violating any provision of city ordinances.

Counsel for the plaintiff in error urge this court to construe section 1819,. Rev. Raws 1910, to authorize this appeal. This section of the statute, is as follows:

“Appeals and proceedings in error shall be taken from the judgments of county courts direct to the Supreme Court and Criminal Court of Appeals in all cases appealed from justices of the peace, and in all cases appealed from the police judges, and in all criminal cases of which, the county court is vested with jurisdiction, and in all civil cases originally brought in the county court, in the same manner and by like proceedings as appeals are taken to the Supreme Court from judgments of the district court.”

We are unable to read into this provision language granting any such right. The purpose and intent of this section is clear, and a construction thereof which would grant authority to cities to appeal from adverse judgments in cases prosecuted under city ordinances is in no wise warranted. The Legislature may pass such a law, but this court has no power to do so. This section of the statute was not intended to confer any special power or right upon municipalities. It confers no right on the state to appeal. It simply declares the' law allowing appeals to litigants and persons charged with violating city ordinances. It clearly did not contemplate anything else. Under this provision of the statute the state would have no right to appeal from an adverse judgment. The state’s right rests wholly on section 5990, supra.

It appears to be a well-settled rule that, although the statute may authorize the state to take an appeal in certain cases, this right cannot be exercised by cities or municipalities in prosecutions under municipal ordinances unless the statute specifically so provides.

In People v. Jackson, 8 Mich. 78, the Supreme Court of Michigan said:

“Although the recorder of Detroit may have power to reserve for our opinion questions which arise upon the trial of reserve such as arise upon the trial of complaints for the breach of city ordinances.”

The question here under discussion was considered by the Supreme Court of Kansas in the case of City of Salina v. Wait, 56 Kan. 283, 43 Pac. 255. In this case Wait was prosecuted in the police court of Salina for violating an ordinance regulating the use of hacks, etc. Pie was convicted in that court, and from the judgment he appealed to the district court. In that court he challenged the validity of the ordinance, and upon his motion the district court quashed the complaint, and discharged him from custody. We quote at length from that court, as follows:

“Does an appeal lie, and has this court jurisdiction to review the ruling of the district court? A negative answer must be given to both of these questions. The defendant is entitled to take an appeal to the district court from the judgment of the police court (Gen. St. 1889, Par. 854), but we find no provision authorizing the city to appeal from the judgment of the police court. In prosecutions by the city for an act of a criminal nature, and which is an offense against the laws of the state, the defendant may appeal to the Supreme Court from any judgment rendered against him in the district court. Cr. Code, sec. 281. We have no statutory provision, however, expressly giving the right of appeal to a city in any prosecution brought in its name. Appeals to the Supreme Court can only be taken by the state in three cases: 'First, upon a judgment for the defendant, on quashing or setting aside an indictment or information; second, upon an order of the court arresting judgment; third, upon a question reserved by the state.’ Id., sec. 283. Without this provision no appeal could be taken by the state, and we find no such provision authorizing an appeal by the city. It has been assumed that the city might appeal in cases where the act sought to be punished was an offense against the public at large, criminal in its nature, and such as might be or is punishable under the criminal laws of the state. Whether such right exists in the city without express legislation to that effect it is unnecessary to determine at this time. The prosecution in this instance is for the violation of a mere municipal regulation. There is no provision which expressly or impliedly gives the city a right to an appeal in such cases, and, without a statutory authority, no right of appeal exists. This court is therefore without jurisdiction to review the ruling of the district court, and therefore the appeal will be dismissed.”

See, also, City of St. Louis v. Marchel, 99 Mo. 475, 12 S. W. 1050; City of St. Louis v. White, 99 Mo. 477, 12 S. W. 1050.

We are of opinion that the city of Oklahoma City is granted no right to appeal from an adverse judgment rendered in a prosecution for the breach of its ordinances.

It follows, therefore, that the motion to dimiss should be sustained, and the appeal dismissed. It is so ordered.

DOYLE, P. J., and FURMAN, J., concur.


text:
    SAM HARRIS v. STATE.
    No. A-1955.
    Opinion Filed January 27, 1915.
    (145 Pac. 759.)
    1. LEWDNESS — Adultery—Proof. In a prosecution for adultery, positive evidence of the direct fact is not required. The fact of carnal intercourse may be inferred from circumstances that lead to it by fair inference as a necessary conclusion.
    2. SAME — Living in Adultery — Sufficiency of Evidence. In a prosecution for open and 'notorious adultery, the evidence considered, and conviction affirmed.
    3. SAME — Elements of Offense — “Living Together in Open and Notorious Adultery.’’ The courts, when called upon to determine what constitutes the state of “living together in open and notorious adultery,” have defined it as the state of cohabiting. In other words, the parties must dwell together openly and notoriously, upon terms as if the conjugal relation existed between them. There must be an habitual illicit intercourse between them.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Sam Harris was convicted of adultery, and appeals.
    Affirmed.

      R. T. Jones and Carr & Field, for plaintiff in error.

      Chas. West, Atty. Gen., and C. /. Davenport, Asst. Atty. ' Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Sam Harris, and Eva Baker were jointly informed against and by a verdict of a jury found guilty of adultery. Said crime was alleged to have been committed by living together in open and notorious adultery. The jury fixed the' punishment of plaintiff in error at a term of two years in the state penitentiary and the punishment of Eva Baker at a fine of $1. From the judgment and sentence entered against him, Sam Harris appeals.

There is but a single question presented by the record for our determination; that is, the sufficiency of the evidence to support the verdict. The evidence shows that Eva Baker was the stepdaughter of Sam Harris, who married her mother when she was about six years of age. In 1906 or 1907, Eva Baker gave birth to an illegitimate child. In December, 1911, she gave birth to another illegitimate child.

Ed Parks testified, in substance.:

“I live southwest of Pauls Valley; have charge of the road camp; was formerly deputy sheriff and county commissioner. Sam Harris and Eva Baker lived together from June, 1911, until January in a house on the Taylor place; saw Eva Baker about the 1st of October, and she looked as if she would be confined in a month or two. Never saw Mrs. Plarris around there.”

Wash Lemmons testified that he knew Sam Harris and his family. Eva Baker and her child were living with them in 1911. Harris bought a spring crop on the Taylor place, about three miles from his home place, and moved enough furniture to keep house with, and Eva Baker went to live there. Plarris spent about one-fourth of his time there; did not see Mrs. Plar-ris there; noticed that the woman was in a delicate condition.

John McCarty testified that he had a store at McCarty, and was a farmer and stock raiser. Mrs. Harris was in the store one day and said that she and Sam had separated.

J. A. Dunn testified that six years ago Sam Harris and his family lived on his place, and Plarris had another place about three miles away, where Eva Baker stayed, and Harris stayed at both places alternately; that in 1911 Harris bought the crop on the Taylor place, and he and Eva Baker moved on and lived there for several months; that he heard all kinds of talk about them, and heard different people say they were living together as man and wife; that he heard remarks about Harris keeping two or three houses around there; and that it looked strange that these women could not all live in one house.

Pink Duncan testified to substantially the same facts.

Dr. E. Sullivan testified that he was a practicing physician; that in December, 1911, he met a woman who gave her maiden name as Eva Baker; that on a phone message he went to the Taylor place, and there delivered a woman of a child. He made a memorandum of the woman’s age, maiden name, number of children, and place and date of birth; the woman gave her name as Harris; maiden name as Eva Baker; age 26 years; that the memorandum is on file at the state board of health at Oklahoma City. Sam Harris was there and said that he was the father of the child, and that the woman was his wife.

For the defense Sam I-Iarris’ sister, Allie Halstead, and her son Arthur, Sam Harris’ wife, the mother of Eva Baker, and Henry Tucker, son-in-law of Sam- Harris, testified that they had never noticed any improper conduct on the part of Sam Harris and Eva Baker, or conduct indicating improper relations.

Sam Harris, as a witness in his own behalf, testified that his family consisted of his wife and six children and a stepdaughter, Eva Baker; that he was married twenty years; that when Eva Baker was twenty years old she gave birth to an illegitimate child, and that he did not know who was the author of her ruin; that six years later, on the Taylor place, she gave birth to another child; that Dr. Sullivan waited on her, and he paid him for his services. Pie denied stating that he was the father of the child, and denied having had improper relations of any kind, at any time, or at any place with his stepdaughter, Eva Baker.

The prosecution in this case was not commenced upon the complaint of the wife of the plaintiff in error, Sam Harris. It is insisted that the verdict and judgment is not supported by the evidence, in that there was no evidence tending to show that the defendants were “living together in open and notorious adultery.” The statute in question provides that:

“Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his other own husband or wife, as the case may be, or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.” (Section 2431, Rev. Laws 1910).

A careful consideration of the testimony satisfies us that it cannot reasonably be said that there was no evidence tending to prove that the defendants were “living together in open and notorious adultery.” In Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, it is said:

“In a prosecution for adultery, positive evidence of the direct fact is not required. To require positive evidence alone would be to give immunity to practically all offenders. Usually presumptive evidence alone is obtainable, and the fact of carnal intercourse is inferred from circumstances that lead to it by fair inference as a necessary conclusion.”

The courts, when called upon to determine what constitutes the state of “living together in open and notorious adultery,” have defined it as the state of cohabiting. In other words, the parties must dwell together openly and notoriously, upon terms as if the conjugal relation existed between them. There must be an habitual illicit intercourse between them. The plain and manifest purpose of the. Legislature in the enactment of the provision of the Penal Code defining adultery and prescribing the manner in which prosecutions therefor may be commenced was to guard and protect the public morals by erecting barriers which \dcious, lewd, and lascivious married persons may not safely pass. The object of the proviso was to prohibit the public scandal and disgrace of the living together of such persons notoriously in illicit intimacy which outrages public decency by providing that any person other than the husband or wife of either party may make complaint. In the case at bar the defendants did, as we think the evidence shows, live together in open and notorious adultery.

It follows that the judgment should be, and the same is hereby, affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYEE, P. J.

text:
    SEQUOYAH WEST v. STATE.
    No. A-2155.
    Opinion Filed February 2, 1915.
    (145 Pac. 1107.)
    APPEAL — Abandonment—Commutation of Sentence. "When an appeal in a death penalty ease is pending in this court, and the Governor, upon the application of the plaintiff in error, commutes the sentence to life imprisonment, the granting of the commutation operates as an abandonment of the appeal, and, when the action of the Governor is brought to the attention of this court, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Mayes County; Preston S. Davis, Judge.

    Sequoyah West was convicted of murder, and appeals.
    Appeal dismissed.

      A. C. Brewster, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYEE, P. J.

Plaintiff in error, Sequoyah West, jointly informed against with Cull K. West and Jesse Clevenger for the murder of one Dan Frame, alleged to have been committed on or about the 7th day of March, 1913, by shooting, was separately tried and convicted of murder with the death penalty assessed. To reverse the judgment an appeal was perfected. While the appeal was still pending in this court, Dee Cruce, Governor, upon the application of plaintiff in error, commuted the sentence to life imprisonment.

Where a commutation of sentence is applied for, and the same is granted, and the action of the Governor in the case is brought to the attention of this court pending the determination of the appeal, the appeal will be dismissed as having been abandoned.

The appeal in this case is therefore dismissed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    JESSIE FINDLEY v. STATE.
    No. A-2138.
    Opinion Filed February 2, 1915.
    (145 Pac. 1107.)
    1. INTOXICATING LIQUORS — Information—Sufficiency. A conviction cannot be sustained on an information which attempts to charge a violation of the prohibitory law by simply alleging that the accused did give away whisky in violation of law.
    2. SAME — Requisites. County attorneys desiring to prosecute for giving away or furnishing intoxicating liquor as provided by the prohibitory law must follow the rule announced in Scott v. State, 6 Okla. Cr. 492, 119 Pac. 1023, and reaffirmed in Tracy v. State, 9 Okla. Cr. 532, 132 Pac. 692. The rule is clear, and works n’o hardship upon the state.
    3. TRIAL — When the evidence introduced on behalf of the state fails to establish the crime charged in the information, and a demurrer is interposed to the evidence, the same should be sustained and the accused discharged.
    (Syllabus by the Court.)

      Appeal from County Court, Osage County; Paul B. Mason, Judge.

    Jessie Findley was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Leahy & MacDonald, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Jessie Findley, was convicted at the October, 1913, term of the county court of Osage county on a charge of selling intoxicating liquor, and her punishment fixed at imprisonment in the county jail for a period of 30 days and a fine of $50.

The only question we find it necessary to discuss in this appeal is the sufficiency of the information to charge giving away intoxicating liquor within the meaning of the statute. The information charges a sale of intoxicating liquor, but the court directed the jury to find the plaintiff in error not guilty of a sale, and submitted to the jury the question of whether or not she was guilty of giving away intoxicating liquor under the second count in the information, which is as follows:

“Chas. M. Cope, the duly qualified and acting county attorney in and for Osage county, Okla., in the name and by the authority of the state of Oklahoma, informs the court that on or about the 23d day of October, 1912, at Pawhuska, in said county of Osage, state of Oklahoma, the said defendant, Jessie Findley, did wrongfully and unlawfully give away to one James Hildebrand certain spirituous liquor, to wit, one pint of whisky (said whisky, said Hildebrand, said time and place being the same as referred to in count 1, above, the transaction being the identical transaction set out in said count 1), contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

This so-called count in the information does not charge an offense against the laws of this state.

In Scott v. State, 6 Okla. Cr. 492, 119 Pac. 1023, the information charged the plaintiff in error as follows:

“* * * Did unlawfully furnish one pint of spirituous liquor, to wit, one pint of whisky to C. J. L,. Beasley, George Myers, Cleve Presley, and Bill Anderson, for $1.”

Discussing the information in that case we said:

“This is entirely too indefinite. If one is to be charged with furnishing liquor, the facts constituting the furnishing should be pleaded. ‘Furnishing’ is a very indefinite term.”

In Tracy v. State, 9 Okla. Cr. 532, 132 Pac. 692, we said:

“The vigilant enforcement of the prohibitory law is to be commended, yet a conviction, in order to be sustained, must be based upon facts from which a legitimate deduction of guilt can be had. The proof does not show that the plaintiff in error sold whisky to anybody. All it does show is that two or three parties met in an alley and were drinking. There is nothing to indicate that the plaintiff in error parted with the alcohol, if he ever had it, for a consideration. It may be that he sold the whisky as charged. If so, the state should make proof of that fact. Or, on the other hand, he may have given away or furnished the liquor in violation of law. If so, the specific facts constituting the giving away or furnishing should be pleaded as stated by this court in the Scott case, supra. If a conviction is to be upheld in this case on the theory that the accused is guilty of a sale, then a case should be made on that theory. If the state desires to stand on the giving away or furnishing feature of the charge, the allegation in the information should conform to the rule announced in the Scott case, and the proof made accordingly.”

In the case at bar the court should have dismissed the prosecution when he found it necessary to instruct the jury that the plaintiff in error was not guilty of making a sale as charged. The state’s evidence, as stated by the Assistant Attorney General in his brief, is to the effect that Mr. Hildebrand went to the home of plaintiff in error; that she was not in, but came in shortly; that he asked whether or not she had anything, and she said she didn’t know, that he could look around and if he saw anything he wanted he could take it along. He found a small bottle which looked like whisky. The seal had been broken and part of the contents was gone. He took the bottle, put it in his pocket, and went out. After leaving the house he started to the lumber yard to take a drink from the bottle. He saw an officer coming around toward where he was, and, before drinking any of the whisky, broke the bottle, to prevent the officer getting it. The officer testified that he saw Hildebrand come out of the Findley house; that it was in the afternoon; that he was coming home; that Hildebrand stuck the bottle in his inside pocket and started away. He followed him up the hill, and when he was about to catch up with him Hildebrand pulled the bottle out of his pocket and broke it.

The statute penalizing the giving away of intoxicating liquor contemplates the doing of such act as a subterfuge for a sale. The doctrine ejusdem generis controls in this class of cases. Facts sufficient to show that intoxicating liquor was given away within the meaning of the statute — that is, as a subterfuge for a sale — must be pleaded. Simply stating that the accused person did give away intoxicating liquor in violation of law is not sufficient. Administering whisky to a person ill, or ' giving alcoholic baths to hospital patients, which could not by any reasonable deduction be held to come within the purview of the statute, would be crimes under the character of information disclosed by this record, if such information can be sustained. It is therefore necessary that the facts be pleaded in order that the court may determine, as a matter of law, whether • or not a crime has been committed, if the facts pleaded be true. If not, a demurrer should be sustained to the information. In the case at bar the facts pleaded do not disclose an unlawful giving away of whisky as a subterfuge for a sale, nor does it appear that the county attorney seriously attempted to establish such contention. A case sufficient to go to the jury on the theory of an unlawful sale could possibly have been made, but the trial court took that issue from the jury, thereby leaving nothing properly before the court to be submitted to the 'jury under the information.

The judgment is reversed, and the cause remanded for a new trial.

DOYLE, P. J., concurs. FURMAN, J., absent.


text:
    O. H. MERRILL et al. v. STATE.
    No. A-2298.
    Opinion Filed February 6, 1915.
    (145 Pac. 1109.)
    APPEAL — Decision Appealable — Denial of New Trial. There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to an appeal from a judgment of conviction, and no appeal lies from an order denying a motion for a new trial made after the time allowed by law for taking an appeal has expired.
    (Syllabus by the Court.)

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

    O. H. Merrill and Sam House were convicted of conjoint robbery, and appeal.
    Appeal dismissed.

      B. M. Frye and B. G. Spilman, for plaintiffs in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

O. H. Merrill and Sam House and one Kirk Dearmin were jointly informed against for the crime of conjoint robbery, and upon their trial were found guilty of conjoint robbery, and their punishment was fixed at imprisonment in the penitentiary for a term of five years. After motions for new trial and in arrest of judgment had been overruled, the court rendered judgment and sentenced each defendant to serve a term of five years in the penitentiary. The judgment and sentence was entered on the 15th day of May, 1913. The record shows that on the 8th day of November, 1913, the plaintiffs in error filed a motion for new trial on the ground that certain papers had been lost from the files, and that said motion was overrtded on the 20th day of January, 1914. An appeal from the order overruling' the motion for a new trial was attempted to be taken by filing in this court on June 19, 1914, what purported to be a case-made, which contains a transcript of the testimony taken upon the supplemental motion for a new trial.

The Attorney General has filed a motion to dismiss the appeal upon the grounds that said appeal is wholly unauthorized. Under the provisions of our Criminal Code, the appeal must be from the judgment and sentence. Section 5988, Rev. Laws 1910.

There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to the appeal from a judgment of conviction. Parker v. State, 10 Okla. Cr. 541, 139 Pac. 708.

The appeal from the order overruling the defendant’s supplemental motion for a new trial should therefore be dismissed.

The purported appeal is hereby dismissed, and the case remanded, with direction to the trial court to carry into execution the original judgment.

FURMAN and ARMSTRONG, JJ., concur.


author: PER CURIAM.

text:
    MONK DULANEY v. STATE.
    No. A-2192.
    Opinion Filed February 6, 1915.
    (145 Pac. 1109.)
    APPEAL — Dismissal. Where no briefs had been filed by accused, and when the case was called for final submission no appearance was made on Ms behalf and no error appeared from an examination of the record proper, the Attorney General’s motion to affirm the conviction for failure to prosecute the appeal should be sustained.
    (Syllabus by the Court.)

      Appear from County Court, Jefferson County; J. M. Adams, Judge.

    Monk Dulaney was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      Hamilton & Sayre, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on an information charging the selling of intoxicating liquor to one John Johnson. On the 5th day of November, 1913, in accordance with the verdict of the jury, he was by the court sentenced to be confined in the county jail for a term of 90 days and to pay a fine of $50.

No briefs have been filed, and when the case was called for final submission no appearance was made on behalf of the plaintiff in error. Thereupon the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

We have examined the record proper, and have discovered no error that will warrant a reversal of the judgment. The motion to affirm is therefore sustained.