text:
    JAMES H. SMITH v. STATE.
    No. A-2235.
    Opinion Filed March 14, 1918.
    (171 Pac. 341.)
    1. APPEAL AND ERROR — Discretion of Trial Court — Change of Venue — Review. A petition for a change of venue is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue.

      %. CONTINUANCE — Application—Absence of Witness. An application for continuance because of the absence of a witness should show due diligence.
    3. EVIDENCE — Other Offenses. Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.
    4. WITNESSES — Constitutional Privilege — Waiver—Cross-Examination — Impeachment. A defendant, by availing himself of the privilege of testifying in his own behalf, thus waives his constitutional privilege and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.
    5. WITNESSES — Credibility—Prior Conviction — Statute. Section 5046, Rev. Laws 1910, permits the proof of a prior conviction of a defendant in a criminal case for the purpose .of affecting his credibility. This proof may be made either by the record or by the cross-examination of the defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.
    6. TRIAL — Instructions—Impeachment of Witnesses. Where a conviction depends upon the testimony of an accomplice who is a confessed perjurer and a convict, and another witness was a convict, and several of the witnesses whose testimony was relied upon to corroborate the accomplice were confessed perjurers and were impeached by testimony showing that their general reputation for truth and veracity was bad, it was error to refuse to instruct the jury on-the law applicable to the impeachment of witnesses.

      Appeal from. District Court, Washita, County; G. A. Brown, Assigned Judge.

    James H. Smith was convicted of the theft of two mules, and he appeals.
    Reversed.
    ' On July 11, 1913, the county attorney of Washita county filed an information fn the district court of said county charging James Smith with the theft of two mules, the personal property of the Colony Mercantile Company, and alleging that said crime was committed about the 30th of November, 1910. Upon his trial he was found guilty and his punishment fixed at five years’ imprisonment in the penitentiary. The evidence shows that the pair of mules were stolen from the Colony Mercantile Company on the night of the 30th of November, 1910; that the mules were found west of Mayfield, Kan., and the harness taken with the mules found at Alva, and also a buggy taken from Weatherford with the mules was found at Alva.
    The evidence connecting and tending to connect the defendant Smith with the crime, briefly -stated, was as follows:
    John Samples testified: That at the time in question he lived in Weatherford, and had been in the livery bustness there with the defendant, but was at date of trial in the penitentiary at McAlester, serving a ten-year term for stealing the said mules, That on the night of November 30, 1910, he went south from Weatherford about three-quarters of a mile and waited until Smith came, and they went on to Colony; each riding a bay horse. They reached Colony about 8 o’clock. That they met two rigs on the way, one south of Weatherford at the jog, and the other about four miles north of Colony. That they first took the harness, and afterwards Smith led the mules out while witness held their horses. They then went west two or three miles and met some one driving an automobile, then went on to Weatherford, and witness stopped at the creamery while Smith fetched an old buggy that had belonged to Pete Cates, and witness hitched the mules to it. .That witness drove the mules to Alva and sold the mules, buggy, and harness to one Pruitt for $330. That he kept $30 and deposited, $300 in the bank there in the name of JJ H. Smith. That a short time afterwards he drew out the money and bought a ticket for Geary, and from there went to El Reno, and then went to Hydro, and there telephoned to Smith, and he met him at Hydro and took him to Weatherford, and on the way he gave Smith $100 of the money. That, when he was arrested for stealing the mules, Smith helped to ■ frame a defense for him. That George Lama was to swear that he saw witness at El Reno, and that Smith was to get witness out of the peni-itentary. That Smith wrote him several letters while he was in the penitentiary, which letters were produced and read to evidence. The tenor of the letters is that Smith was the friend of John Samples and was trying to help him by sending him money and trying to get a pardon for him. On cross-examination he testified that Smith that day had been driving Mr. Near; “that he got back before bedtime,” and took Mr. Near to the hotel, and came back to the bam, and then they started on the trip to Colony; that a mile and a half out they met a wagon or buggy and spoke, and within three or four miles of Colony they met another rig; that witness went to one side and Smith to the other, and they spoke to the person driving; that no one went with him on his way to Alva. The transcript of his former testimony was read, contradicting his statements on this trial.
    Eddy Keyes testified that, when John Samples was prosecuted for stealing the mules, he had a conversation with John Samples and Jim Smith about, his testimony as a witness in Samples’ trial, and they wanted him to swear that he saw John Samples in El Reno about the time the mules were stolen, and it was not true; that he heard Smith tell John Samples to stand pat and npt to turn him, and he would help Samples; that after John Samples had gone to the penitentiary he was present when Jim Smith told Carl Samples to take a team of horses to apply on John’s lawyer fee, and Carl Samples asked witness to go with him to the pasture to get the team, and they went out to the pasture and brought the horses in and put them in Samples’ barn. His cross-examination shows that he had been a bootlegger, had been convicted of theft, and at the time in question was living with a prostitute.
    Roy Hahn testified that he was cashier of a bank at Alva, and on December 3, 1910,' cashed a check drawn on the First National Bank of Alva for $300, payable to J. H. Smith, and signed by J. H. Pruitt; that John Samples was the man who presented the check.

      W. M. Griggs testified that he lived north of Colony, and on the night of November 30, 1910, he was on his way home, and about four miles out- from Colony he met Mr. Smith and Mr. Samples, going south; that he was traveling in a hack and they were horseback; that as they passed they separated and one went on one side arid the other on the other side; that he had known Samples and Smith for several years. On cross-examination he stated that Jess Hitt was with him; that he did his trading at Colony, and the next morning attended a sale near there and heard about the mules being stolen; knew that John Samples was arrested for stealing the mules, but never spoke about meeting him and Smith; never told anybody that he had seen Samples and Smith that night until questioned on the witness stand; that Samples and Smith as they passed him said, “How do you do.”
    Leroy Griggs testified that he lived about three miles northwest of Colony; that on the night of November 30th he met two fellows on horseback about a mile north of Colony, and as they passed both of them said, “How do you do?” and that he recognized John Samples and Mr. Smith' by their voifees; that it was then between 8 and 9 o’clock. On cross-examination he stated that he attended a sale near Colony the next morning and heard that thé mules were stolen and knew about John Samples’ arrest and trial for stealing the mules, but had never said anything to anybody about seeing these men that night.
    George Lama testified that he lived at EÍ Reno on or about November 30, 1910, and had a conversation with John Samples and Jim Smith after Samples’ arrest, and they wanted him to testify as a witness for Samples that he saw John Samples in . El Reno on the 2d and 3d days of December, and that as a witness he did so testify, and that his testimony was false; that he had been convicted of gambling and carrying a sixshooter.
    Carl Samples, a brother of' John Samples, testified that he was then serving a three-year sentence in the penitentiary at McAlester for cattle theft in Caddo county; that after his brother Jim was convicted and sent to the penitentiary he had several “talks” with the defendant Smith; that he was sitting in Smith’s barn office and heard Smith say to Norman Henry and others that John Samples ought to have been in the penitentiary ten years sooner, and he stepped up and Smith apologized to him; that Smith told witness he paid part of the lawyer’s fee, and witness told Smith he was just as guilty as John was, and he said at first •he was not, but finally admitted that he was in it; that another time Smith told him he just got $20 out of the mule deal; that Smith told him he had a team that he would give to Connell; that the lawyer and witness went with Eddie Keyes to the pasture and got the horses and turned them over to his father. On cross-examination he stated that on the night the mules were stolen he was down in Caddo county; that he knew when his brother John took the trip to Alva; that the defendant Smith tried to hire him to testify as a witness for his brother John; that Ted Bailey was his brother-in-law and visited him two or three times while he was in jail at Arapaho; that he did not tell Ted Bailey that witness and George Lama were the fellows that took those mules away from Colony.
    Pete Cates testified that a short time prior to November 30th he sold an old buggy with a tongue in it to John Samples.

      B. E. Duvall testified that on the evening of November 30th he saw John Samples east of Weatherford riding a black horse.
    A stipulation by the state and the defendant was filed that in 1910 the 30th of November was Wednesday, and the defendant waived his constitutional right to be confronted with witness Walter F. Dickens, agreeing that the questions and answers might be read as the testimony said witness would give if- he were present. The testimony of the witness is as follows:' That he resides at Red Lake, Minn.; on November 30th lived at Colony, Okla., and was superintendent of Indian school there; was west of Colony on the night of the theft; met two men about 10 o’clock, each riding a small horse, and each leading a mule with harness on; witness was i'n an automobile; had been acquainted with Jim Smith for a long time prior to that; saw Jim Smith the next morning in the vicinity of Colony in company with Mr. Near; witness, told Smith and Near about the mules having been stolen.
    For the defense, C. E. Near testified that he was a collector for the International Harvester Company; that his territory included Custer county; that he was in Weather-ford on the 29th and 30th of November and made a drive in the afternoon with Jim Smith, and got back about 6 o’clock;-that he went to the Smith barn between 8 and 9 o’clock that evening to outline a drive for the next day, and talked with Jim Smith; that he was at the barn until 10 o’clock or later; that John Samples was there at 9 o’clock, but witness did not see Samples after the train came in; that he walked to the Park Hotel with Jim Smith after 10 o’clock, and Smith went on in the direction of his home; that he left Weatherford with Jim Smith the next morning, and they drove towards Colony; that they met Mr. Dickens west of Colony, and Mr. Dickens spoke of the mules having been stolen the night before; that about 8 o’clock that evening he and Smith got back to Weatherford, and witness stayed at the Park Hotel that night.
    Charles C. Penn testified that in 1910 he was in the hotel business at Weatherford; that he was acquainted with C. E. Near, and he produced his hotel register showing that Mr. Near registered there on the 29th of November, 1910, and identified the signature; that he knew the general reputation of George Lama for truth and veracity, and that it was bad.
    Ed Austin testified that he bought out John Samples' interest in the livery business with Smith in July, 1910; that Jim Smith was driving with Mr. Near on the 30th of November and John Samples was around the barn that evening; that he slept at the barn and heard a rig come in during the night; that John Samples was there the next morning in bed with a man by the name of Wright; that there was a rig taken out of the bam that night, and the bam account showed a charge against George Casey. The charge against George Casey was submitted to the jury, and defendant’s attorney, knowing that the county attorney- had a magnifying glass, called for it, and turned it and the book over to the jury with the request that they examine a particular item, the one that Mr. Smith, special counsel for the state, said had been erased, and the jury examined the book with the glass.
    George Casey testified that he had been acquainted with Jim Smith and John Samples for years; that he was a farmer and lived out from Weatherford; that in the early winter of 1910 he made a drive from Weatherford to his home; that he had been to Clinton and arrived at Weather-ford at 9 o’clock or later in the night; that he got the rig at Smith’s stable, and John Samples did the driving; that it was six miles out; that after John Samples was arrested, he came to witness’ place and asked him if he remembered him driving him home on the night of the 30th of November, and witness said he did not know the date of that drive.
    Barney Davis, ex-sheriff of Custer county, testified that he was acquainted with the general reputations of George Lama, Carl Samples, and John Samples for truth and veracity, and their reputations were bad.
    Tom Hudgins testified that he was acquainted with Jim Smith and C. E. Near, and on the 1st day of December, 1910, he met them at a sale near Colony.
    H. W. Morrison testified that he knew the reputations of George Lama, Carl Samples, and John Samples for truth and veracity, and their reputations were bad.
    To the same effect was the testimony of George E. Lindley and Walker Moore,
    said:
    Mack W. Litzman testified that he had a talk with George Lama after Jim Smith was arrested, and Lama
    . “We have got to drag him in if we want to clear John Samples.” “No, Jim is not guilty of the charge any more than you are.” And, “Jim is not guilty. John Samples never got them, because Carl and I led them away.”
    C. L. Gasseway testified that he talked with Eddie
    Keyes about the Smith case, and Keyes said:
    “We had to turn against Smith.” “Old man Samples offered me $100 to swear against him, and I called Jim up and told him that if he would furnish me enough money I would get out of the country, and that Samples had offered him $100, and that in Smith’s preliminary he (Keyes) had sworn.to lies against Smith.”
    Ed Davies testified that he was city marshal at Weatherford; that he was acquainted with the general reputations of George Lama, John Samples, Carl Samples, and Eddie Keyes for truth and veracity, and their reputations were all bad.
    Tim Murphy testified that he was in Weatherford on the day that the mules were stolen that night; that he saw Carl Samples, John Samples, and Near together;’ that they were on horseback and were going south.
    Edna Crume testified that she was court reporter for the county court, and as such took the testimony at the preliminary trial of Jim Smith, and afterwards correctly transcribed the same; that George Lama, as a witness, testified in part as follows:
    “Q. State' whether or not you had any conversation with Jim Smith or John Samples regarding John’s case, wherein he was convicted for stealing the mules from the Colony Mercantile Company. A.. I don’t know that I did. Q. State whether you ever heard them talk about it? A. Yes, sir; I heard them talk about it, but I don’t remember what they said about it.”
    James H. Smith, as a witness in his own behalf, testified that he had been a resident of Custer county for about 14 years, the last four a resident of Weatherford; that his age was 43 years; that he lived with his family, consisting of a wife and three children; that'John Samples was his partner in the livery business for about five months; that Samples sold his interest to Ed Austin in July, 1910, but after that was about the barn often; that on the afternoon of November 30th he made a drive with C. E. Near, the International Harvester man, getting back about 6 o’clock; that after supper he went back to the barn, and Mr. Near came in about 8 o’clock and arranged his route for a drive the next day; that Mr. Near remained there until about 10 o’clock; that he walked with him to the Park Hotel, and then went on home; that that evening Mr. Casey came in and hired a team to take him home; that John Samples was there and drove Mr. Casey home; that Mr. Casey did not pay, and he charged the same to him on the book that evening; that the next morning he found the man working at the barn and John Samples there; that he drove Mr. Near south; that about four miles west of Colony they met Mr. Dickens, and he told about the mules having been stolen; that he was not acquainted with W. M. Griggs or Leroy Griggs, witnesses who testified for the state, and that he was interested in John Samples’ defense because he thought he was innocent, but did not know until Samples’ trial that Samples had anything to do with getting the mules out of the country.
    The transcript of the testimony contains about 600 pages, but the foregoing statement is sufficient for the purpose of this opinion.

      Jones & Bashore, Geo. T. Webster, and James Shack-elford, for plaintiff in error.

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

(after stating the facts as above). The plaintiff in error has assigned a large number of errors on the record, but the view we are constrained to take of this case will render it unnecessary for us to pass upon all the questions presented.

The first contention is that the court erred in refusing to grant a change of venue.

The petition was verified by the defendant.. It is alleged in the petition that the minds of the inhabitants of Washita county are so prejudiced against the defendant that he cannot obtain a fair and impartial trial in said county; that John Samples, the principal witness for the state, was convicted in Washita county in 1910, and that on his trial this defendant was a witness for John Samples, and the people of the county have become greatly biased against this defendant on that account; that the Anti-Horse Thief Association of Washita county took an active part in the prosecution of John Samples; that its members at the time formed a great dislike to this defendant;' and said organization has employed J. W. Smith, of Cordell, ex-county attorney of Washita county, to prosecute him and has paid a large fee to him in the case; that the organization has 175 members scattered over the county; that they are men of high standing and the case has been widely discussed, and it has had the effect of prejudicing the minds of the inhabitants to such a degree that he cannot obtain a fair and impartial trial in said county, and in support of the petition he filed the affidavits of 27 other citizens of the county. The state called ten witnesses in resisting the application.

It has been the uniform holding of this court that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for a failure of the trial court to grant a change of venue. Considering all of the facts and circumstances disclosed by the record in the present case, we cannot say that the court erred in refusing to grant the change.

The next assignment is that the court erred in overruling the defendant’s motion for a continuance.

The case was called for trial October 13, 1913. Thereupon the defendant filed his motion for a continuance upon the ground of the absence of Ted Bailey, a material witness, and in support thereof relied upon his affidavit setting forth that on the 6th day of October, the time the case was set for trial, he caused a subpoena to issue, which subpoena was therewith exhibited; that said witness lived at Weatherford, and the judge of the district court ordered a subpoena to issue for said witness, with others, directed to the sheriff of Custer county; that the return of the officer showed that Ted Bailey had not been served; that the defendant had exercised all due diligence to find said witness, who was temporarily absent from Weather-ford, as affiant verily believed; that the defendant expected to prove by said witness "that Carl Samples, a witness for the state, told him six or seven weeks ago, while he (Carl Samples) was in jail at Arapaho, that he (Carl Samples) and George Lama were the ones who stole the Colony Mercantile Company’s mules, and that it was not John Samples and James Smith who stole them, and that this case is a put up job on James Smith, and affiant further says that the said witness, Carl- Samples, will deny that he so stated to Ted Bailey, as he verily believes.”

It has been the uniform holding of this court that the granting or the refusal of a continuance is largely a matter within the discretion of the trial court, and no rule is more firmly established than that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it.

The evidence upon the trial shows that said absent witness was at the time in the adjoining county of Caddo. The defendant’s affidavit does not disclose such diligence on his part to procure the attendance of this witness as the law required, or such as made it the duty of the court to grant a continuance. It follows that the motion was properly overruled.

Numerous errors are assigned on the rulings of the court in the admission of certain testimony over the defendant’s objections. The court permitted- the witness John Samples to testify as follows:

“Q. Was Jim Smith • on your bond? A. Yes, sir. Q. Now, John, in the trial of that case, you may state whether or not there was any testimony produced by you and Jim Smith in your defense that was perjury testimony, and known to be so by you and Jim? A.. Yes, sir. Q. You may state to the jury just how you and Mr. Smith arranged the defense of your case; state all about it. A. Well, he come and told me what all he could prove and who he could prove all this by. He told me he would get Mr. -, an attorney of Oklahoma City, to beat the case; Mr.-drew a draft for $50 on Mr. Smith, and he turned it down. Smith said that he would get George Lama and Eddie Keyes as witnesses for me, and we got George Lama and Eddie Keyes, and we took turn about drilling and ■ coaching them what to swear to.”

Eddie Keyes, over the defendant’s objections, was permitted to testify to conversations with the defendant Smith and John Samples about what his testimony would be by way of establishing an alibi for Samples in his case.

George Lama, over the defendant’s objections, was permitted to testify that John Samples and the defendant Smith wanted him to swear that he was at El Reno with Samples so as to establish an alibi .for Samples.

Carl Samples, over the defendant’s objections, was permitted to testify that the defendant Smith tried to hire him to testify as a witness for his brother, John Samples. The testimony of this character and kind takes up many pages of the record.

Counsel for the defendant moved the court “to withdraw from the consideration of the jury all of the testimony of John Samples, Eddie Keyes, George Lama, and Carl Samples with reference to the matter of framing up a defense for John Samples in his case, for the reason that the same is incompetent, irrelevant, and immaterial, not a part of the res gestae, and tending in no way to corrobo-raté the witness John Samples as an accomplice.” Which motion was overruled, and exceptions allowed.

■ We are of the opinion that this testimony was inadmissible, because, if true,- it had reference to a separate and distinct crime, that of subornation of perjury on the trial of John Samples, and its admission could not have been otherwise than prejudicial to the defendant.

Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and' admissible, it must have some logical connection with the . offense charged. The case was tried by the state upon the theory that the defendant Smith had personally assisted John Samples in taking the mules: That is the testimony of John Samples. The defendant made hite defense against that theory. John Samples, a confessed accomplice, had to be corroborated. Apparently, this testimony was admitted by the court under the theory that it tended to corroborate John Samples. Under the state’s theory, the defendant Smith was either in Colony on the. night of the theft assisting John Samples, or he was not guilty. The efforts of the defendant to help John Samples make his defense about a year after the theft in no way tend to prove that he was with Samples at Colony when the mules were stolen. The testimony of John Samples, Eddie Keyes, and George Lama in this regard raided a collateral issue for the jury. Before the jury could. consider this testimony even in corroboration of John Samples, they in effect had to find the defendant Smith guilty of subornation of perjury;but, if the defendant had been on trial for this grave offense, it would have been the duty of the court to instruct the jury that they could not convict the defendant upon the uncorroborated evidence .of said witnesses, for by their own testimony they were accomplices of Smith in the commission of the crime of subornation' of perjury. We are also of the opinion that the letters written by the defendant to John Samples were inadmissible; they contained no admission against interest, nor any statement that could in any way be construed as an admission of guilt.

The next assignment is misconduct of the attorney for the state in asking certain questions upon the cross-examination of the defendant, and error of the court in permitting the same.

It appears from the record that upon his cross-examination he was asked the following questions and was forced to answer them over his objections:

“Q. State whether or not you stopped at Parsons, with a woman whose reputation for chastity was bad and not related to you? A. No, sir. Q. Did you take with you any woman of unchaste character when you went to Kansas City? A. No, siír. Q. Did you sleep with any woman while you were there other than your wife? A. I did. Q. At that time you had a wife and two or three children. A. I had a wife and two babies; yes, sir. Q. Now, I will ask you if it is not true that these boys and you and others kept women there at your livery stable and in the hotels at Weatherford and slept with them various and sundry nights? A. No, sir. Q. Did you and these boys ever keep girls around your livery stable and in the hotels? A. No, sir; I didn’t. Q. Did you know anything about having performed an operation on any of these girls? The Court: Objection sustained. Gentlemen of the jury, with reference to the operation you will disregard that question.”

The general rule is that, when the defendant iin a criminal case voluntarily takes the stand as a witness in his own behalf, he has all the rights of other witnesses and is subject to the same rules of cross-examination and impeachment as other witnesses. People v. Dupounce, 133 Mich. 1, 94 N. W. 388, 103 Am. St. Rep. 435, 2 Ann. Cas. 246; Harrold v. Territory, 18 Okla. 395, 11 Ann. Cas. 818; Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58.

In the case of Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, this court said:

“As to what is the proper practice on cross-examination of witnesses, the general rule is that the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, .memory, veracity, character, or credibility.. This must necessarily include impeaching questions, although they-may relate to matters independent of the questions testified to in chief.
“When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the trial court will riot be reviewed on appeal.”

And see Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132.

Discussing the scope of cross-examination, Mr. Green-leaf says:

“There may, secondly, be a limitation based on the general impropriety of allowing an unrestrained raking-up of the witness’ misdeeds and of thus making the witness box a source of annoyance and terror both to reputable and disreputable persons alike. The utility of such exposures is comparatively so small, and the abuse of such cross-examination by unscrupulous counsel is so common, that some measures of restriction are highly desirable, and this attitude of the courts may well be emphasized as the only proper one. The object is attained in most jurisdictions by declaring the trial court to have discretion to set limits to such an examination (irrespective of its relevancy), and to forbid it whenever it seems to be unnecessary or profitless or undesirable; and such is the rule now in vogue in the majority of jurisdictions. A few courts, with • courage and wisdom, have taken the step of forbidding entirely such cross-examination as to character.” (Greenleaf on Ev. vol. 1 [16th Ed.] par. 461b.)

Our statute permits the proof of a prior conviction of a defendant in a criminal case for the purpose of aifeeting his credibility. Section 5046, Eev. Laws 1910.' This proof may be made either by the record or by the cross-examination of the defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.

We are of the opinion that the cross-examination objected to was improper and highly prejudicial to the defendant, and the action of the special prosecutor in asking such questions constituted misconduct on hi's part. The obvious purpose and the undoubted effect of such course of cross-examination was to degrade the defendant and prejudice the minds of the jury against him, and the rulings of the trial court in permitting the same and compelling the defendant to answer such questions constitute prejudicial error.

Several errors are based upon the exceptions taken to the instructions given and the refusal of the court tQ give certain requested instructions. Among others, the defendant requested four instructions based upon the law applicable to the impeachment of witnesses, including an instruction approvel by this court in the case of Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647. The charge of the court did not include any instruction covering the law of impeachment.

In view of the fact that two of the state’s witnesses were convicts, serving their terms, and that several of the state’s witnesses were confessed perjurers, and were impeached by testimony showing that their general reputation for truth and veracity was bad, and that no attempt was made to contradict these character witnesses in any way, we think the court should have instructed the jury on the law applicable to the impeachment of witnesses, especially in a case of this kind, where the testimony relied upon to secure a conviction was, at most, only technically sufficient to support a verdict of guilty.

For the. reasons stated, we think the defendant has not had a fair and impartial trial.

The judgment of the lower court is therefore reversed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
      Ex parte CALLIS SHIRLEY et al.

    No. A-3280.
    Opinion Filed March 16, 1918.
    (171 Pac. 339.)
    HABEAS CORPUS — Admission to Bail. On habeas corpus to be let to bail, where it appeared that applicants were held on a charge of having been present at a quarrel in which deceased had been hilled by another who had been admitted to bail in the sum of $5,000, applicants would be granted bail in thel same sum, and, on the giving and approval of a proper bond, discharged.
    Application by Callis Shirley and Sam Stevenson for a writ of habeas corpus to be let to bail.
    Application granted, and, on giving and approval of proper bond, petitioners to be discharged.

      Stanley & Osborn, for petitioners.

      R. McMillan, Asst. Atty. Gen., opposed.
   PER CURIAM.

This is an application by Callis Shirley and Sam Stevenson for a writ of habeas corpus to be let to bail.

An examination of the record discloses the fact that Ollie Prince was killed on the 9th day of February, 1918, in the vicinity of Katie/in Garvin county. A number of negroes were in the party. There had been- a gambling game and whisky drinking carousal in effect for considerable time on the day of the homicide. A brother-in-law of the deceased during the time the carousal was In progress became engaged in a controversy with a negro named Stevenson. A fistic encounter ensued wherein both parties were knocked down. Immediately following this difficulty Simp Stevenson shot the deceased, Prince. A large number of shots were fired by various persons. Simp Stevenson admitted that he did the killing; that the others took part in the fight after he had fired the fatal shot.

The district court of Garvin county granted bail to Simp Stevenson and two others, but denied bail to these petitioners.

Without expressing any opinions upon the weight of the evidence or the culpability of the various parties accused of this homicide, it is our judgment that the petitioners herein should be granted bail.

In view of the showing made before this court and the fact that the district court of Garvin county fixed bail for Simp Stevenson and others in the sum of $5,000, it is the order of this court that the petitioners herein be granted bail in like sums, formal recognizance to be entered into as provided by law and all conditions imposed thereby, the bond to be approved by the court clerk of Garvin county. When proper bail bond is given and approved by the court clerk of said county, the petitioners shall be discharged and allowed their freedom on the bail so furnished.


author: GALBRAITH, Special Judge.

text:
    JAMES M. DUPREE v. STATE.
    No. A-2346.
    Opinion Filed March 19, 1918.
    (171 Pac. 489.)
    1. ATTORNEY GENERAL — Powers and Duties — Statute. Under section 8057, Rev. Laws 1910, it is the duty of the Attorney General, upon request of the Governor, to appear in the trial court and to institute and conduct the prosecution of particular criminal cases, and by such request the Attorney General is clothed with all the powers and duties of the county attorney in regard to the prosecution of criminal cases generally, but such request and appearance do not abrogate the powers and duties of the county attorney in regard to the particular prosecution.
    2. FORMER JEOPARDY — Sufficiency of Plea. Where the county attorney has instituted a criminal prosecution which is pending in the superior court, and the Attorney General, upon request of the Governor, appears and institutes a prosecution for the same offense in the district court of the county, and the county attorney continues his prosecution in the superior court and secures a trial, resulting in a verdict of “not guilty” before the prosecution by the Attorney General is reached for trial, and when it is called the plea of former jeopardy is urged against the information, held, that the plea is well taken and should have been sustained.

      Appeal from District Court, Oklahoma County; Frank Mathews, Assigned Judge.

    James M. Dupree was convicted under the statute making it an offense to keep a place for the purpose and with the intent of unlawfully selling, bartering, or giving away intoxicating liquors, and he appeals.
    Reversed and remanded, with directions.

      Claud Nowlin and William Zwick, for plaintiff in ■ error.

      Chas. West, Atty. Gen., and Smith C. Matson and Jos. L. Hull, Asst. Attys. Gen., for the State.
   GALBRAITH, Special Judge.

The disposition of this appeal requires the consideration of only one of the many assignments of error set out in the petition in error, namely, the fifth assignment, which reads:

“The said district court of . Oklahoma county, Okla., erred ■ in requiring the defendant to proceed to trial, and in placing the defendant, J. M. Dupree, on trial for said offense in the district court of Oklahoma county, Okla., for the reason that said defendant, J. M. Dupree, had heretofore been duly tried and acquitted of the identical offense charged against him in said information.”

It appears from the record that the Attorney General, having been requested so to do by the Governor, on the 7th day of February, 1914, filed a preliminary information in the county court of Oklahoma county charging the plaintiff in error, with numerous other persons named in the information, with the offense of keeping a place, to wit, the second and third stories of a three-story brick building and the appurtenances thereunto belonging, located at No. 6V2 North Broadway, Oklahoma City and Oklahoma- county, called the “Elite .Hotel,” with the unlawful intention and for the unlawful purpose of selling, bartering, and giving away spirituous and malt liquors contrary to the statute; that a preliminary examination was waived by the defendants and they were -bound over to the district court of Oklahoma county; that thereafter, on the 20th day of February, 1914, the Attorney General filed in the district court of Oklahoma county an information against the plaintiff in error and the other parties named with him, wherein it was charged that on the 1st day of April, 1913, and continuing thereafter up to and including the 14th day of February, 1914, the defendants did keep a place at No. 6% North Broadway, Oklahoma City, known as the “Elite Hotel,” with the purpose and' intent of unlawfully selling, bartering, and giving away spirituous liquors, etc. The sufficiency of this information was challenged by demurrer and by plea of former jeopardy in bar. These pleas being denied, the plaintiff in error asked and was granted a severance and proceeded to trial upon his plea of not guilty, resulting in a verdict of “guilty,” and a judgment entered therein assessing a fine and a prison sentence. To review which this appeal was prosecuted.

It also appears from the recoid that on the 3d day of December, 1913, the county attorney of Oklahoma county commenced a prosecution against the plaintiff in error and others charging the offense of keeping a place, to wit, the “Elite Hotel,” in Oklahoma City, on April 1, 1913, and continuously thereafter up to a day named in December, 1913; that the preliminary hearing was waived and the defendants were bound over to the superior court of Oklahoma county; that on the 9th day of February, 1914, the county attorney of Oklahoma county filed an information in the superior court of said county against the plaintiff in error charging the offense of keeping a place, to wit, the “Elite Hotel,” in Oklahoma City on the 1st day of April, 1913, and continuously thereafter up to and including the 14th day of March, 1914; that this cause was set for trial in the superior court on the 20th day of March, 1914, and the trial thereof was further continued until the 23d day of March, when a trial was had before the court and jury and a verdict returned by the jury of “not guilty,” and a judgment entered upon said verdict by the court adjudging the plaintiff in error “not guilty” of the offense charged.

It is admitted that the offense charged in the information filed by the Attorney General in the district court and that filed by the county attorney in the superior court charged one and the same offense. It is urged on behalf of the state, in answer to the plea of former jeopardy set up in bar to the information filed by the Attorney General, that when the Attorney General commenced the prosecution, by filing the preliminary Information in the county court, the power and authority of the county attorney to proceed with the prosecution on the information filed by him was revoked and superseded, and that any steps he might have taken in the prosecution subsequent to the filing of the information by the Attorney General were ineffectual for any purpose, and that the trial had therein could not amount to jeopardy, and therefore the plea attempting to set up the. former jeopardy was properly denied.

The duties of the county attorney in regard to the prosecution of criminal cases in general are set out in section 1554, Rev. Laws 1910, as follows:

“It shall be the duty of the county attorney to appear in the district court, superior and county courts of his county and prosecute and defend, on behalf of the state or county, all actions or proceedings, civil or criminal, in which the state or county is interested or a party; and whenever the venue is changed in any criminal case, or any civil action or proceeding in which his county or the state is interested or a party, it shall be the duty of the county attorney of the county where such indictment is found, or the- county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed.”

Section 8059, Rev. Laws 1910, makes it the duty of the Attorney General to consult with and advise the county attorney when requested by him “in all matters pertaining to the duties of their office.”

Section 8057, Rev. Laws 1910, prescribes specific duties for the Attorney General, as follows:

“The Attorney General shall appear for the state and prosecute and defend all actions and proceedings in the Supreme Court and Criminal Court of Appeals in which the state shall be interested as a party, and shall also, when requested by the Governor or either branch of the Legislature, appear for the state and prosecute or defend in any other court or before any officer, i'n any cause or manner, civil or criminal, in which the state may be a party or interested, and shall attend to all civil cases remanded by the Supreme Court to any district court in which the state is a party or interested. He shall keep an office, to be furnished by the state in the same manner as the other state offices.”

It was upon the request of the Governor that the Attorney General appeared and filed the information in the instant case.

This record presents the question of the effect of the appearance of the Attorney General in this prosecution upon the power and authority of the county attorney in regard to the same after such appearance. The Supreme Court of Colorado, in the case of People v. Gibson et al., 53 Colo. 231, 125 Pac. 531, Ann. Cas. 1914A, 138, in discussing a statute almost identical with section 8057 above quoted, quote with approval a statement in regard to the effect of the appearance of the Attorney General in the prosecution upon the power of the county attorney therein, from the opinion of the Supreme Court of Minnesota in State v. Robinson, 101 Minn. 277, 112 N. W. 269, 20 L. R. A. (N. S.) 1127, as follows:

“The statute under consideration, imposing specific duties upon county attorneys in the matter of its enforcement, is in no proper view a limitation upon, nor does it exclude, the general authority of the Attorney General upon the same subject.”

And the Colorado court proceeds as follows:

“So under the law of this state district attorneys are specifically authorised, inter alia, to appear in all indictments, criminal cases, and proceedings which may -be pending in the district court of their respective counties. Nevertheless, general authority is imposed upon the Attorney General to appear and prosecute in all cases wherein the state is a party or interested when required so to do by the Governor or General Assembly. The two provisions are not inconsistent. They may stand together. The specific duty imposed upon the district attorneys in no wise limits or excludes the general authority of the Attorney General upon the same subject.”

The Supreme Court of North Dakota, in Ex rel. Miller v. District Court of Burleigh Co. et al., 19 N. D. 819, 124 N. W. 417, Ann. Cas. 1912D, 935, say in regard to the duties of the Attorney General, when requested by the Governor to appear in the prosecution of criminal cases in the trial court:

“The Legislature stepped further, and, guided by the public interests, announced by another special clause of the statute cited, as one of the Attorney General’s duties, that he shall, when required by the public service, or directed by the Governor, assist the county attorney of any county in the discharge of his duties. Here we have a specific direction by which the Attorney General is to do more than to exercise those supervisory powers contemplated by previous requirements of the law. He is to assist the county attorney in the discharge of his duties when the public service requires it, or when the Governor directs him to give such assistance. * * * Nor is there any limit whatever to the assistance to be given— no point where it is to begin or to end, except the bound of the official duty of the county attorney. Just so long as the county attorney has the duty to discharge, and just so far as he may go in discharging it, so long is it the right and obligation of the Attorney General to actively assist him in the discharge of such a duty; and equally far in executing the duties shall he go when the public service requires it, or -when directed to assist by the Governor.”

The Supreme Court of Oklahoma, in Ex parte Kelly, 45 Okla. 577, 146 Pac. 444, say in regard to the interpretation of section 8057, above quoted:

“If it be held, as contended by counsel for petitioner, that the authority of the Attorney General is limited to the right of appearing in proceedings already pending, it would amount to a denial of his right to appear in any case where, by reason of the failure, neglect, or refusal on the part of the local authorities to institute proceedings, the same has not been done. The purpose of this statute in our judgment is to clothe the Governor, who is vested by law with the supreme executive authority, and clothed with the power of executing the laws, in a proper case, where from any reason the law is not enforced, to put in motion the machinery of the law to maintain its authority. ■ Conditions might arise where local officials would refuse to enforce the law, and flagrant violations thereof might occur with impunity, unless there be some power by which these conditions could be remedied; and when, in the judgment of the Governor, the laws are not properly enforced by local officials, it was clearly contemplated by this statute that upon his request the Attorney General might in person take charge of the conditions, and in that situation would be clothed with all the authority of the local officers, and could take any steps necessary to institute any proceedings, or carry the same on to a final determination, notwithstanding the local officials might refuse to do so.”

And in the same opinion the court quotes with approval from the syllabus in the opinion of the Supreme Court of Kansas in State v. Bowles, 70 Kan. 821, 79 Pac. 726, 69 L. R. A. 176, to the effect that when the Attorney General has been requested by the Governor to act in such a case, the Attorney General then becomes the prosecuting attorney of that county in those proceedings.

We understand the court to mean by this language that in such condition the Attorney' General becomes clothed with the same power as to . the county attorney in regard to the prosecution of such cases. There is nothing in the language of the statute that would justify the inference that the Legislature intended that the request by the Governor and the appearance of the Attorney General in the prosecution of a criminal case should operate to relieve or to disqualify or to take away from the county attorney the powers conferred upon him by the statute in regard to the prosecution of criminal causes. The Attorney General being clothed with the same power as the county attorney, this power was not exclusive, but concurrent with the power conferred by the statute upon the county attorney, and was limited by the same power which limits the duty and the powers of the county attorney.

It will be observed that the situation as presented in the instant case differs from that presented in any of the cases above cited. In each of those cases there was a failure, refusal, or neglect to act on the part of the county attorney that was used as occasion for the Governor to make the request upon the Attorney General to act. In the instant case the county attorney had not refused to act, but, on the contrary, he had acted. He had filed an information, had instituted a prosecution, and the same was pending at the time the Attorney General instituted his prosecution.

The record does not disclose why, but the fact appears that the county attorney was more diligent in the prosecution than the Attorney General. At least, he got a trial on the information he filed before the Attorney General secured a trial on his information. In the situation such as presented by the record in this case it would seem proper that the. Attorney General, by reason of his larger oifice, and by reason of being clothed with the same ■ authority as the county attorney by virtue of the statute and the request of the Governor, possibly should have had control in conducting the prosecution. He might have assisted the county attorney in the prosecution of the Information filed by him, or he might have caused the dismissal of that information, if for any reason he thought an information filed by himself would be more effective, but he had no right to ignore the county attorney, as he .apparently did, and he had no right to ignore the superior court in which the county attorney’s information was pending, as he apparently did, and proceed, independently upon an information filed by himself in the district court. He was not justified in disregarding the county attorney and the superior court until after the trial had in the superior court on the information presented by the county attorney, and, having done so, he could not then be heard to say that such proceedings were ineffectual because he (the Attorney General) had presented an information charging the same offense to the district court.

The trouble in this prosecution seems to have been largely a question of dignity. The Attorney General does not seem to have suggested to the county attorney that he should refrain from prosecuting his information since the Attorney General wished to and had filed an information against the parties in the district court. With this question of dignity between these high officials the plaintiff in error has nothing to do, and he seems to have been in no way responsible for this conflict of authority. He had been haled into court by the highest prosecuting officer in Oklahoma county, and also, by the highest prosecuting officer of the State of Oklahoma; each pursuing him and seeking to convfct him for the same offense. .

Section 21 of article 2 of the Constitution of Oklahoma provides:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again- put in jeop-andy of life or liberty, for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

In this race of diligence in the prosecution of a crime the county attorney seems to have been the more diligent; but the Attorney General cannot speculate on the result of the efforts of the county attorney to secure a conviction, and when they fail contend that the trial was ineffectual and the accused was not placed in jeopardy, and secure a conviction for the same offense at another trial on an information presented by himself and have the convibtion sustained on appeal. The plea of former jeopardy was well taken and should have been sustained.

The judgment appealed from must be reversed and the cause remanded, with directions to the trial court to vacate the judgment of conviction and sustain the plea of former jeopardy and to dismiss the defendant without day.

DOYLE, P. J., and ARMSTRONG, J., concur; MAT-SON, J„ disqualified, not participating.


author: DOYLE, P. J.

text:
    C. H. HALL et al. v. STATE.
    No. A-2835.
    Opinion Filed March 19, 1918.
    (171 Pac. 347.)
    APPEAL AND ERROR — Review—Question of Fact. This court will not reverse a judgment of the trial court for lack of evidence where there is evidence in the record reasonably tending to sustain the judgment.

      Appeal from County Court, Ottawa County; Vém E. Thompson, Judge.

    C. H. Hall and O. W. Davife were convicted of violating the prohibitory law, and they appealed.
    Affirmed.

      Don M. Crump, M. G. Bailey, and W. J. Crump, for plaintiffs in error. ,

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

The plaintiffs in error, C. H. Hall and 0. W. Davis, were jointly charged, tried, and convicted in the county court of Ottawa county upon an information charging that in said county on or. about the 21st day of March, 1916, they did have in their possession “150 quarts of whisky with the wrongful and unlawful intent to dispose of the same in violation of the prohibitory liquor law of the State of Oklahoma.” The jury failed to fix the punishment. July 20, 1916, the court rendered judgment and sentenced the defendant Hall to be confined for 30 days in the county jail and to pay a' fine of $350, and sentenced the defendant Davis to be confined iln the county jail for 30 days and to pay a fine of $500. From the judgments the defendants appeal.

The errors are based upon the alleged insufficiency of the information, upon the rulings of the court on the evidence, and the alleged insufficiency of the evidence to sustain the verdict.

To a correct understanding of the case so far as it involves the sufficiency of the evidence, the following is a .brief statement of the same:

W. P. Kimball, night policeman in the city of Miami, and Guy Parker, a police officer, received a phone message, and in response thereto went to a certain place in the city of Miami and found an automobile loaded with 150 quarts of whisky.

Kimball testified that he knew the defendants, and on the 21st of March, 1916, he received a message that there was an auto coming from the north traveling at a high rate of speed,- and with Policeman Parker he went to meet it; that, after going several blocks, they found a car stalled at the foot of the hill; that the defendant Hall was standing behind a stump near by, and shortly after-wards the defendant Davis and one Dave Pounds appeared with a team, and they arrested Davis; that he had a rope with him; that the car was a five-passenger Ford; that they searched Hall behind the stump, and found on his person a number of 38 cartridges and a scabbard in the lap robe, and also found a 38 Smith & Wesson pistol near where he was standing; that Kimball asked him if he was in the habit of coming through there with booze, and he said this was his third trip, and that he was not in the habit of hauling whisky, but he was in Joplin and thought he might as well pick up a few easy dollars as not; that the defendant Davis also had a pistol on him.

Guy Parker testified that it was about two o’clock in the morning when he, with Mr. Kimball, reached the car; that there were 148 quarts of whisky in the car; that when Davis and Pounds came they dropped a double-tree, and Davis had a rope in his hand; that later he found a tag on the inner tube of the car that had the name of “Davis” on it.

Pounds testified that he was a transfer man in Miami; that about 2 o’clock in the morning the defendant Davis came to his barn and wanted him to come and get his machine out; that he took a team, rope, and doubletree, and went with him; that the car was down in a hollow, and when they reached there Pbliceman Kimball pulled a gun and ordered them to hold up their hands.

For the defense Earl Jackson testified that he saw two men driving a car south in the direction of where the car stopped; that it was a moonlight night, and the two men he saw in the car were not the defendants, Davis and Hall.

Earnest McLemore testified that he lived at Haskell, and the defendants, Davis and Hall, lived at Haskell; that Hall never owned a car, that Davis owned a five-passenger Ford, but sold' it about two weeks before to a man that worked for an oil company.

It is a sufficient answer to the contentions made in the defendants’ brief that no demurrer was filed to the information. However, we find that the informatibn is sufficient in every way. In fact, we find nothing in thé record of which the defendants have any just complaint. Counsel urge that the allegation in the information is possession with the “unlawful intent to dispose of the same,” and that there was no evidence showing such intent. The evidence shows possession of 148 quarts of whisky. That in itself was sufficient to submit the issue to the jury.

Various criticisms are made in the defendants’ brief upon the instructions given. We find that the charge of the court fully and fairly covered the law of the case, and the criticisms made are not well founded.

It is apparent that justice has been done, and the judgment of conviction ought not be reversed, except for some plain error in the proceedings which was or might be prejudicial to the defendants. We find no such error in the record.

The judgment appealed from is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    JOHN HESTER v. STATE.
    No. A-2837.
    Opinion Filed March 19, 1918.
    (171 Pac. 340.)
    APPEAL AND ERROR — Question of,Fact — Review. The determination of questions of fact are exclusively for the jury, and when the record discloses ample testimony to support the conclusion reached, the judgment will not be reversed in the absence of substantial error of law.

      Appeal from. County Court, Pottawatomie County; Hal Johnson, Judge.

    John Hester was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      Mark Goode, for plaintiff in error.

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

The plaintiff in error, John Hester, was convicted in the county court of Pottawatomie county at the April, 1916, term on a charge of having the unlawful .possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail of Pottawatomie county for a period of 30 days.

The only propositions raised by the plaintiff in error and discussed in the brief involve questions which were exclusively for the determination of the jury. These questions were determined adversely to the wishes and contentions of the plaintiff in error, but in our judgment were properly determined.

There are no errors sufficient to warrant a reversal of the judgment. It is therefore affirmed. ■ ■

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


text:
    GEORGE HELMS v. STATE.
    No. A-2843.
    Opinion Filed March 19, 1918.
    (171 Pac. 340.)
    1. PARTIES TO OFFENSES — “Principal.” All persons concerned in the commission of crime, whether it be felony or misdemeanor, •and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals. Section 2101, Rev. Laws 1910.
    2. INTOXICATING UQUORS^-Unlawful Sale — Sufficiency of Evidence. In a prosecution for selling intoxicating liquors, the evidence considered, and held sufficient to sustain the verdict, and that no material error was committed.
    3. APPEAL AND ERROR — Case-Made—Copy of Judgment. Where the record of an informal judgment rendered in pursuance of the verdict shows when judgment was rendered, against whom, for what offense, and that sentence was pronounced in accordance with the verdict, it is sufficient against the objection that the case-made does not contain a copy of the judgment.

      Appeal from County Court, Ottawa County; Vern E. Thompson, Judge.

    George Helms was convicted of selling intoxicating liquors, and he appeals.
    Affirmed.

      Mason & Church, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the county court of Ottawa county on the 14th day of July, 1916, in which the defendant was found guilty of selling intoxicating liquors, to wit, beer and whisky, to W. A. Wagoner, Sam Sullivan, and Ed. Ballard, and his punishment assessed at a fine of $300, and imprisonment in the county jail for a period of 60 days.

The testimony of Ed. Ballard and Sam Sullivan was to the effect that they bought beer in the defendant’s joint in Cardin, said county; "that a man known as “Cedar Red Bland” sold the beer, but the defendant was present at the time; that the defendant helped to ice the beer. Frank Staton testified that he owned the land that the building was on, and had rented the ground and received the rent from the defendant. The state also introduced a certified copy of the United States internal revenue record, showing the payment óf the, special tax required from retail liquor dealers, issued November 8, 1915, to G. Helms; place, lots 1 and 2, block 1, Cardin, Okla. There was no testimony offered on the part of the defendant.

Considering the various errors assigned, we find/ that the information is sufficient. As to .the sufficiency of the evidence to sustain the verdict, all persons who take part, participate, or engage in an offense are guilty as principals. The evidence showing that the party selling the intoxicating liquor was an employee of the defendant is uncontradicted.

After a careful examination of the record, we are clearly of the opinion that the appeal is destitute of merit. The Attorney General has filed a motion to dismiss the appeal on the ground that the case-made does not contain a copy of the judgment rendered.

The record shows an informal judgment rendered in pursuance of the verdict. It shows that judgment was rendered by the court, when rendered, against whom, for what offense, and that sentence was' pronounced in accordance with the verdict. This is all that is necessary. Ex parte Earl Howard, 2 Okla. Cr. 563, 103 Pac. 663.

The record does not disclose any reversible error. The judgment of conviction is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur;


text:
    CHARLES LUPPY et al. v. STATE.
    No. A-2881.
    Opinion Filed March 19, 1918.
    (171 Pac. 347.)

      1. ■ NEW TRIAL — Newly Discovered Evidence — Diligence. An application for a new trial on the ground of newly discovered evidence will be denied where the record shows that defendants knew of the absent witness long before trial, and did not exercise due diligence to obtain his presence at the trial-or to take his deposition.
    2. SAME — Self-Incriminating Testimony. An application for a new trial on the ground of newly discovered evidence should be denied where it appeared that the testimony sought would incriminate the absent witness himself, since he could not be compelled to testify.

      Appeal from. County Court, Washington County; Robert D. Waddill, Judge.

    Charles Luppy and William E. Rogers were convicted of unlawfully transporting intoxicating liquors iin Washington county, Okla., and sentenced to pay a fine of $150, and to serve 30 days in the county jail, and they appeal.
    Affirmed.

      Charlton & Farrell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

No brief has been filed nor oral argument made in behalf of plaintiffs in error. This case is submitted on the record. We find the information sufficient to support a charge of unlawfully transporting intoxicating liquors. While the evidence is conflicting, that upon the part of the state sufficiently supports the allegations of the information. No exceptions were taken to any of the instructions given by the court. After an examination, of same, we find that they correctly state the law, and are as favorable to the defendants as their defense would warrant.

The application for a new trial on the ground of newly discovered evidence is without merit, because it is apparent from this record that the defendants knew of the absent witness long before they were tried, and did not exercise, due diligence either to obtain his presence at the trial or to take his deposition, and also that, if such person had been produced as a witness, he could not have been made to testify to facts or circumstances which would tend solely to incriminate himself, and the affidavit shows that the facts which were expected to be proved by said witness were such as would fasten the guilt. for the alleged crime upon him.

After a careful examination of the record, we find no error sufficient to justify a reversal of this judgment, and said judgment of conviction is therefore affirmed.


text:
    H. C. BONDURANT v. STATE.
    No. A-2886.
    Opinion Filed March 23, 1918.
    (171 Pac. 488.)
    INTOXICATING LIQUORS — ¡Prosecution — Instruction. — Reputation— Evidence. On a trial upon a charge that the defendant did" have ■ possession of intoxicating liquor with intent to violate provisions of the prohibitory liquor law, where evidence of the general reputation of the defendant’s place of business was relied on to show the intent, it was error for the court to refuse to instruct the jury upon the law applicable to reputation evidence, and the purpose for which such evidence was admitted.

      Appeal from County Court, Grady County; R. E. Davenport, Judge.

    H. C. Bondurant was convicted of a violation of the prohibition law, and he appeals.
    Reversed.

      Holding & Herr, for plaintiff In error.

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

This is an appeal from a judgment of conviction upon an information charging that H. C. Bondurant did have in his possession intoxicating liquors, to wit, whisky, for the purpose of disposing of the same in violation of the prohibitory law of the state. The verdict, omitting formal parts, was as follows:

“That the jury drawn, impaneled, and sworn in the above-entitled cause do upon our oaths find the defendant, H. C. Bondurant, guilty as charged in the information, herein and assess his punishment at a fine of $50 and confinement in the county jail for 30 days. We> the jury, recommend that the judge eliminate the jail sentence. (Signed by five jurors.)”

To the receiving of the verdict the record shows that the defendant excepts “for the reason that said verdict is insufficient in form and too indefinite and uncertain as to the penalty assessed.” Overruled, and exception allowed.

The evidence shows that Bondurant, the defendant, conducted a lunch counter on Chickasha avenue between Fourth and Fifth streets, Chickasha; that Hodge Bailey, sheriff of Grady county, and two deputies, Rucker and Castleman, went to the defendant’s place of business to execute a search warrant, and they found about one-half quart of whisky behind a cook stove in the back room, and found two small glasses there. These officers and witness Marshall, a policeman, each testified that the defendant’s place of business was a place of public' resort, and that they knew the general reputation of the defendant’s place of business as to being a place where intoxicating liquors were sold, and that it had the reputation of being a place where intoxicating liquors were sold. C. C. Leonard testified that the defendant’s place of business had the reputation of being a place where intoxicating liquors were sold.

The defendant, as a witness in his own behalf, testified that he had the whisky there for his own use; that he had been drinking some that day; that he did not sell intoxicating liquors; that he did not intend to sell any of the liquor in question.

The charge of the. court contains six instructions, and merely submitted the general issue. Among others the defendant requested the court to give the following instruction :

“Evidence has been admitted in this case relative to the reputation of defendant’s place of business. This evidence has been admitted, for one purpose only, that is, for the purpose of showing the intent for which the defendant had the liquor in question, and before you can consider said evidence for any purpose, you must find the defendant’s place is a public resort, and that such place was used for the sale of intoxicating liquors.
“Refused and exception allowed.
“R. E. Davenport, Judge."

We think that this instruction should have been given for the defendant, and in view of the fact that, the evidence was merely technically sufficient to make a prima facie case the court committed error in refusing it. Evidence as to the reputation of the defendant’s place of business was competent and admissible only for the purpose of showing the unlawful intent. As a general rule, where evidence is admitted only for the single specific purpose, the court, when requested, should in its charge to the jury limit the purpose for which such testimony was admitted.

For error of the court in refusing to instruct upon the law applicable to the evidence introduced, the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.


text:
    ED FRANKS v. CITY OF MUSKOGEE.
    No. A-2893.
    Opinion Filed March 23, 1918.
    (171 Pac. 492.)
    JURY — Right to Jury Trial — Constitution—Provisions. The Bill of Rights of the Constitution of Oklahoma declares that: “The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts and courts not of record, the jury shall consist of six men." Const., art. 2, sec. 19. And that: “In all criminal prosecutions .the accused shall have the right of a speedy and public triaí by an impartial jury of the county in which the crime shall have been committed.” Const., art. 2, sec. 20. Held, that a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute, or an ordinance the punishment for a violation of which is or may be imprisonment, is entitled to a jury trial in the court of original jurisdiction, and to accord to the accused the right to be tried by a jury in, the county court on appeal after conviction in the municipal court, does not satisfy the requirements of the Constitution. In such cases a judgment of conviction in the municipal court, not based upon a verdict of guilty by a jury, is void.

      Appeal from County Court, Muskogee County; Glenn Alcorn, Judge.

    Ed Franks was convicted of violating a city ordinance, and he appeals.
    Reversed.

      Crump, Bailey & Crump, for plaintiff in error.
   DOYLE, P. J.

The plaintiff in error, Ed Franks, was convicted in the police court of the city of Muskogee upon a complaint charging him with being an inmate of a disorderly house, and he was adjudged to pay a fine of $25, from which judgment he appealed to the county court of Muskogee county. Upon his trial in the county court he was again convicted, and his punishment assessed at confinement in the city jail for 45 days, and to pay a fine of $25. From the judgment rendered in pursuance of the verdict, he appeals. The question of jurisdiction which was raised below in the municipal court and in the county court has been passed upon by this court in Ex parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097, wherein it is held:

“That a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute, or an ordinance the punishment for a violation of which is or may be imprisonment, is entitled to a jury trial in the court of original jurisdiction, and to accord to the accused the right to be tried by a jury in the county court on appeal after conviction in the municipal court, does not satisfy the requirements of the Constitution. In such cases a judgment of conviction in the municipal court, not based upon a verdict of guilty by a jury, is void.”

. And further held:

“That in respect to ‘offenses’ under city ordinances, the punishment for which is or may be imprisonment, conviction of the accused without a jury trial would be in contravention of section 7 of the Bill of Rights, providing that, ‘No person shall be deprived of life, liberty, or property, without due process of law,’ because under the constitutional provisions a jury is an essential part of every tribunal for the trial of criminal cases, and such constitutional provisions place the right to trial by jury beyond the power of the Legislature to abrogate or abridge it, and it is beyond the power of the Legislature to confer jurisdiction on any tribunal to try criminal cases without providing for jury trials.”

For the reason stated in the opinion in the Johnson Case, we are of the opinion that the proceedings had upon the trial and conviction of the plaintiff in error were illegal and void, and said court was without jurisdiction to render the judgment appealed from. The judgment is therefore reversed and remanded, with direction to dismiss.

ARMSTRONG and MATSON, JJ., concur.


text:
    BILL BRAGG v. STATE.
    No. A-2897.
    Opinion Filed March 23, 1918.
    (171 Pac. 487.)
    INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. Evidence in a prosecution for unlawful possession of in-' tosicating liquor with the unlawful intention to sell or otherwise dispose of it held sufficient to sustain conviction!.

      Appeal from County Court, Pontotoc County; 1. M. King, Judge.

    Bill Bragg was convicted of having unlawful possession of intoxicating liquor with the intent to sell or otherwise dispose of it, and he appeals.
    Affirmed.

      John Crawford (Stuart, Cruce & Riddle, of counsel), for plaintiff in error.

      S. P. Freeling, Atty Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Bill Bragg, was convicted in the county court of Pontotoc county upon an information charging the unlawful possession of certain intoxicating liquors, to wit, -23 gallons of Choctaw beer, with the unlawful intention to sell or otherwise dispose of the same. On the 5th day of October, 1915, by the judgment of the court he was sentenced to be confined in the county jail for a period of 90 days and that he pay a fine of $100 and the costs. From the judgment he appeals.

The evidence for the state shows that Sheriff Duncan, with two deputies, went to the defendant’s tent, located in a pasture southwest of the Frisco depot at Roff, and one of the deputies went into the tent and asked the defendant if he could buy some “Choc;” that the defendant said he was afraid he was trying to trap him, but finally decided to sell some, and asked him whether he wanted it hot or cold, the hot being in the tent, and the cold in the ice box; that thereupon the officers took charge and found some Choctaw beer in the ice box with 50 or 60 pounds of ice, and found 16 gallons of Choctaw beer in the tent. They testified that it was a beverage made out of malt and hops, and that it was intoxicating. The sheriff further testified that he drank some of it; that it was strong with alcohol; that he, had drunk Budweiser and. Pabst, but this Choctaw beer was the strongest beer he had ever drunk. The testimony of Whitson and Chandler, the deputy sheriffs, was substantially to the Same effect.

As a witness in his own behalf the defendant testified that he, with others, made the stuff for their own use, but did not sell it, and did not intend to sell it.

The errors assigned are insufficiency of the evidence to sustain the verdict, error in the instructions given, and error in refusing requested instructions.

It is a sufficient answer to the contentions made to say that the evidence is ample to support the verdict. The instructions fully and fairly cover the law of the case, and the instructions requested were properly refused. Having examined the record, and finding no substantial error therein, and believing that a fair and impartial trial was had, the judgment of the county court of Pontotoc county is affirmed.


author: MATSON, J.

text:
    SILAS (BUD) DARNEAL v. STATE.
    No. A-2866.
    Opinion Filed March 30, 1918.
    (171 Pac. 737.)
    1. INTOXICATING UQUORS — Unlawful Sale — Resale. Where one person delivers to another certain intoxicating liquors in exchange for and in consideration of a sum of money then and there paid, the transaction constitutes a sale of intoxicating liquors, and it is immaterial whether the purchaser subsequently delivers a portion of such liquors to other -persons who had theretofore contributed to a purse with which such liquors were purchased, where it appears that the person making such a sale was ignorant of the fact that such liquors were to be subsequently delivered to parties other than the one producing and paying the money.

      Z. SAME — Accomplice. Where D. delivers intoxicating liquors to R. in exchange for a money consideration, and is so charged and convicted of making an unlawful sale to R., and the evidence on the part of the state discloses that prior to said transaction the fund of money with which said liquor was purchased by R. from D. had been contributed to by R. and three other persons without the knowledge of said D., and that it was the intention of R., after obtaining possession of such liquor, to deliver same in part to said other parties who had contributed to the purse, such delivery to be made also without the knowledge of D., held, that under such circumstances R. is not an accomplice of D. Buchanan v. State, 4 Okla. Or. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83, distinguished.
    3. SAME. Under the facts above stated, the sale of the liquor by D. to R. was independent of any relation theretofore existing between R. and the parties who had contributed to such purse.

      Appeal from County Court, Le Flore County; P. C. Bolger, Judge.

    Silas (Bud). Darneal was convicted of an unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.

      McCurtain & Neely, for plaintiff in error.

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

Plaintiff in error, Silas (Bud) Dar-neal, was convicted in the county court of Le Flore county at the August term, 1916, of selling intoxicating liquor to one W. H. Rutledge, and hi's punishment fixed at 30 days’ imprisonment in the county-jail, and to pay a fine of $50.

The facts upon which this conviction is based are about as follows: The prosecuting witness, W. H. Rutledge, together with three other parties who were residents of Spiro, Le Flore county, concluded to purchase some intoxicating liquor for their personal use. They boarded the train at Spiro and rode to Sculleyville in the same county, where they got off at the depot in that town, and walked out in the country about a mile and a half to a ravine close to where this plaintiff in error resided. There they all donated $1 a piece, and Rutledge was selected to approach this plaintiff in error for the purpose of purchasing some alcohol. Rutledge took the $4 and went to the house of Darneal about one-fourth of a mile away. There he purchased two quarts of alcohol,"and paid Darneal the sum of $4 therefor, and Darneal delivered the alcohol to Rutledge without any knowledge on his part that the $4 formed a contribution by Rutledge and three other persons, and also without knowledge of the fact that Rutledge was to deliver said alcohol in part to the other three persons who had helped donate the $4. Harvey Bryant, one of the parties who donated $1 for the purchase of this liquor, testifies to the same effect; as the prosecuting witness, Rutledge, with the exception that he did not see the liquor purchased from Darneal, but only knows that Rutledge brought two quarts of alcohol back to the ravine after the purse of $4 had been contributed for that purpose. The defendant denied ever selling any alcohol or other intoxicating liquors whatever to the witness Rutledge, and also introduced a couple of witnesses to show that his general reputation as a law-abiding citizen was good.

Counsel for the defendant requested three separate instructions based on the theory that the prosecuting witness, Rutledge, was an accomplice of the defendant, Dar-neal, in making a sale of intoxicating liquor to all of the four persons who participated in contributing the purse for that purpose, and therefore a conviction, based on the uncorroborated testimony of said Rutledge, must not be permitted to stand. Counsel rely upon the case of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83. Said case is not in point. Here Darneal is prosecuted for making a sale to Rutledge direct. In the Buchanan Case, Buchanan was prosecuted for makihg a sale of liquor to one York, and the testimony in that case on the part of York was to the effect that he gave Buchanan some money, and Buchanan went away and brought him some whisky therefor. Buchanan claimed to be a go-between, and the agent of the purchaser, and not the seller in that instance. He occupied the same relation to the parties that Rutledge does in this case. The holding of the court in the Buchanan Case was to the effect that Buchanan was guilty as a principal in making a sale to Ybrk, irrespective of the fact that he had previously purchased the whisky himself illegally from another party. There is no holding to the effect that the party from whom Buchanan purchased the whisky could not be convicted upon his (Buchanan’s) uncorroborated testimony of making a separate sale to Buchanan, in this case, Darneal is charged directly with the sale of intoxicating liquor to Rutledge, who was the go-between. Darneal had no knowledge of the fact that Rutledge intended to deliver a portion of this alcohol to any other party. So far as Dameal is concerned, his relation to Rutledge was that of a seller of the liquor. He was in possession of the liquor, he received his price therefor, and he made a delivery of the liquor to Rutledge in exchange for the sum of $4 to him then and there in hand paid. All of the necessary elements of a sale were complete, the ownership and possession of the goods in Darneal, and the delivery of the same to Rutledge in exchange for a sum paid. The criminal statutes of this state, as was said in the case of Buchanan v. State, supra, must be liberally construed in order to promote justice and obtain the object for which such statutes were enacted. The seller of whisky or other intoxicating liquors, theréfore, will not be permitted in this court, where he is guilty of a separate and distinct offense,, such as the sale of intoxicating liquor, to escape punishment for such illegal act because perchance the party purchasing such liquor may thereafter use same unlawfully without the knowledge or consent or assistance of the person from whom such purchase was made. This court will not impute criminality to the seller of liquor for any and all unlawful acts or uses which may be subsequently made by said purchaser without the knowledge, consent, or assistance of the seller. Therefore, under the facts of this case, it is not necessary to determine whether or not Rutledge is guilty of making a separate and distinct sale to Bryant and the others who delivered money' to Rutledge and afterwards received part of this alcohol. The determination of such a question is not essential to a proper solution of this case, because all of the elements of an unlawful sale existed and were concluded between Darneal and Rutledge, and Rutledge’s 'connection with the other parties was absolutely unknown to Darneal. We hold, therefore, that the case of Buchanan v. State, relied upon by counsel for plaintiff in error as ground for a reversal of this judgment of conviction, is not in point, nor determinative of the questions involved in this case.

However, it may be advisable to add that any person who receives from another person money, and with that money unlawfully purchases liquor in this state, and thereafter delivers same to the person from whom he received such money, does so at his own peril, and will not be permitted to thus aid and abet in the unlawful traffic in intoxicating liquors, and base his defense solely upon the ground that he received no pecuniary benefit therefrom. For authorities to the effect that all of the facts necessary to constitute an unlawful sale were present in this case, see the following: Richardson v. Commonwealth, 11 Ky. Law Rep. 367; Commonwealth v. Packard, 71 Mass. (5 Gray) 101; Loveless v. State, 40 Tex. Cr. R. 131, 49 S. W. 98; Wade v. State (Tex. Crim. App.) 43 S. W. 955; Cooper v. State, 37 Ark. 412; Hatfield v. State, 9 Ind. App. 296, 36 N. E. 664.

The judgment of conviction is affirmed.

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


text:
    WILEY TAYLOR v. STATE.
    No. A-2820.
    Opinion Filed March 30, 1918.
    Rehearing Denied April 20, 1918.
    (171 Pac. 739.)
    1. RAPE — Information—Proof. Where an information charging statutory rape in the first degree alleges the crime to have been committed “on or before September 1. 1915,” the state is not required to prove said crime as committed on the date alleged, but may rely upon any specific act of sexual intercourse committed within three years previous to the date of the commencement of the action.
    3. EVIDENCE — Admissibility—Other Acts. Where the trial court requires the state to elect to rely for conviction upon a certain- specific act of intercourse between the prosecutrix and defendant committed some two years prior to the commencement of the action, evidence of other acts of illicit intercourse between said parties, continuing from said act up until a short time prior to the commencement of the prosecution, is competent to show the intimate relation and familiarity between the parties and as corroborative of the ultimate fact sought to be proven.
    3. RAPE — Evidence—Sufficiency. Evidence examined and held sufficient to sustain a conviction of statutory rape in the first degree.

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Wiley Taylor was convicted of rape in the first degree, and sentenced to serve a term of 18 years in the penitentiary, and appeals.
    Judgment affirmed.

      A. Turner, for plaintiff in error.

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

It is first contended that the verdict is contrary to the law and the evidence, in that the testimony of the prosecuting witness, Lucinda Mitchell, shows “that she was past the age of 14 years at the time the information was filed and the crime alleged to have been committed.” The plaintiff in error was convicted and sentenced to serve a term of 18 years in the penitentiary for rape in the first degree; it being the contention of counsel for plaintiff in error that, if he was guilty of any offense at all, it was rape in the second degree, which may only be punished by a maximum imprisonment in the penitentiary for a term of 15 years. The prosecuting witness, Lucinda Mitchell, was an ignorant-Indian girl. She had received very little educational training. Her examination shows that she did not know the number of days in a week or month, and that she was uncertain as to her age, 'testifying that she was told she was 14 years old, and also that her mother told her that she was 17 years old. This was at the time she appeared as a witness. However, Rebecca Brown, a witness, testified positively that Lucinda Mitchell was 14 years of age in May, 1915. The information alleged that the crime was committed on or before the 1st day of September, 1915. Therefore, if the state was compelled to rely upon the date stated in the information, and limited its proof thereto, the prosecuting witness would have been past 14 years of age at the time of the commission of the alleged crime, and defendant could only have been convicted of rape in the second degree. But time is not of the essence of this offense, and it may be proved to have been committed at any time within the period of three years prior to the commencement of the prosecution, and in this instance the trial court required the state to elect to rely upon a particular act of intercourse, and the state elected to rely upon the first act of sexual intercourse between defendant and the prosecuting witness, which occurred in the latter part of the year 1913, or the first of the year-1914, nearly two years prior to the date alleged in the information, but within the statute of limitations, and the trial court, in his instructions to the jury, limited its consideration of the question of guilt of this defendant to the particular act relied upon by the state for a conviction. Accordingly, the proof on the part of the state, if believed, showed the commission of rape in the first degree, and the fact that there was proof of a continuous unlawful relation between defendant and prosecuting witness until after she attained the age of 14 years, which culminated in her pregnancy in the late spring or early summer of 1915, although indicating the guilt of defendant of other similar offenses, was competent evidence, as was held by this court in Myers v. State, 6 Okla. Cr. 389, 119 Pac, 136; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668; Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731. We hold, therefore, that the verdict is not contrary to the evidence or the law.

It is also contended that the court erred in giving a charge to the jury on first degree rape. It necessarily follows from what has been said concerning the first assignment of error that no error was committed by the court in submitting first degree rape to the jury.

It is also contended that the court erred in overruling a demurrer to the evidence because defendant was surprised, it being alleged in the information that the‘crime was committed on the 1st day of September, 1915, and the state was permitted “to prove the crime to have been committed two years prior to that date.” It is contended that this operated as a surprise, because plaintiff in error was prepared to defend against a crime alleged to have been committed on September 1, 1915, which would show that he was only guilty, if at all, of rape in the second degree, and therefore he was prejudiced in his substantial rights, and the demurrer to the evidence should have been sustained. We think this contention is without merit, because time is not of the essence of the offense, as above stated, and the information plainly charged him with the crime of rape in the first degree both at the preliminary examination and in the district court. He was charged with knowledge, therefore, that the crime committed by him was upon a female under the- age of 14 years, and that the state could rely upon any particular act of sexual intercourse of his with the prosecuting witness committed within three years prior to the date of the commencement of the action, and at a time when said prosecuting witness was under the age of 14 years. He could not claim surprise, therefore, under such circumstances. The information was clearly sufficient to fairly warn him of the nature and circumstances of the crime with which he was charged.

It is also contended that the proof of the fact that the prosecuting witness was under the age of 14 years at the time of the commission of this offense is very unsatisfactory and contradictory. The sufficiency of the proof of the crime charged is for the jury. This court will not disturb a verdict on this ground merely because there may be a conflict in the testimony. In this case, however, we see very little conflict. The testimony of the prosecuting witness is to the effect that she was always told she was 14 years old, but that her mother had told her she was 17. Mrs. Rebecca Brown positively testified that the girl was only a few months past 14 years old at the time she testified. She fixed the child’s age by reason of the fact that she had two daughters, one two years older than, the prosecuting witness and one one year younger. Mrs. Brown had known the prosecuting witness from the time-of her birth, and testified that when the prosecuting witness was one month old, her mother brought the child to Mrs. Brown’s house on a visit. The mother, of this child, was present in court, and in no way contradicted the testimony of Mrs. Brown as to the child’s age. Also this prosecuting witness testified that her mother was present in the room where the defendant continuously had access to her for this unlawful purpose. The defendant was her' stepfather, and the prosecuting witness testified that the acts perpetrated by him upon her were with her mother’s knowledge, consent, and encouragement, and yet this depraved mother sits silently by in the courtroom and does not even contradict the child as to that.

This record discloses a most deplorable state of facts. It is almost impossible to conceive that in this enlightened day and age we can find a mother or stepfather so utterly depraved as to permit or encourage conduct of this kind. That defendant escaped with his life when the jury might have inflicted the death penalty is miraculous under the proof. He was ably defended, and the facts and circumstances disclosed by the evidence in this case clearly indicate hite guilt of the crime of rape in the first degree. The assignments of error are purely technical. This court is convinced that his trial was a fair and impartial one, and that the punishment received at the hands of the jury is extremely lenient under the circumstances. '

The judgment of conviction is therefore affirmed.

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