text:
    EUGENE RALPH CORDONNIER v. STATE.
    No. A-10893.
    March 31, 1948.
    (192 P. 2d 298.)

      Eagin & Eagin, of Oklahoma City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Eugene Ralph Cordon-nier, was charged by an information filed in the district court of Oklahoma county, with the crime of larceny of an automobile after haying been previously convicted of two felonies, was tried, convicted, and sentenced to serve ten years in the State Penitentiary, and has appealed.

The information charged that the defendant, without the knowledge or consent of A1 Cook, the owner of the automobile, did take, steal, and drive away from the immediate possession and control of the Civic Parking Lot, a certain automobile with the intent to permanently deprive the owner thereof and appropriate the same to his own use and benefit.

It is first contended that the evidence was wholly insufficient to sustain the conviction. This proposition is based upon the fact that neither the owner of the parking lot nor any of his employees were called as witnesses to establish the lack of consent on their part to the taking of the automobile.

A1 Cook testified that he was the owner of a certain 1946 Dodge automobile; that on November 6, 1946, he left his car early in the morning at the Civic Parking Lot; that after he had finished work for the day about 6:00 p. m., he returned to the parking lot for his automobile and found it missing; that he had not given anyone permission to take the automobile; that after talking to the owner of the parking lot he notified the police department; that between the hours of 8:00 and 9:00 p. m. on that date he was notified by the Oklahoma City police department that his car had been recovered and he obtained it from a garage the next morning.

R. S. Riley and R. C. Patterson, two policemen of Oklahoma City, each testified that about 6:00 p. m. on November 6, 1946, they received the report and description of a stolen 1946, maroon Dodge automobile; that about two hours later while driving on Northwest Twenty-TMrd near May avenue they saw the stolen automobile which turned north at the intersection on Northwest Twenty-Third street and May Avenue; that they forced the automobile to the curb about 75 yards north of the intersection; that the defendant was driving the Dodge automobile. The policemen testified that when they questioned the defendant about the automobile, he said it was a friend’s car which he had borrowed, but after further questioning, the defendant told them that he had stolen it. There was other testimony pertaining to the prior convictions of defendant which we shall discuss under another proposition.

This court has held that in a larceny prosecution, the actual status of the legal title to stolen property is no concern of the thief; so far as he is concerned, one may be taken as the owner who is in possession of the property and was unlawfully disturbed by the taking. Butler v. State, 60 Okla. Cr. 188, 62 P. 2d 662. Little v. State, 21 Okla. Cr. 1, 204 P. 305; Hunsaker v. State, 81 Okla. Cr. 321, 164 P. 2d 404.

In this case, although it is alleged that the automobile was taken from the possession of the Civic Parking Lot, the information further alleged that the car was the personal property of A1 Cook, and that it was taken without his knowledge or consent. Mr. Cook testified as to the ownership and that the car was taken without his knowledge or consent. In addition, the defendant admitted to the officers that he had stolen the automobile. This proof was certainly sufficient, if credited by the jury, to establish the larceny.

It is contended that the state did not prove the former convictions alleged in the information. There is no merit to this contention for the reason that at the time the state called the court clerk of Oklahoma county as a witness to prove the former convictions alleged in the information, counsel for the defendant entered into a stipulation agreeing that the defendant had sustained the convictions alleged in the information and waived proof of the same. Later, when counsel for the state attempted to introduce in evidence the informations filed in the cases where the defendant had sustained the other convictions for felonies, counsel for the defense made the following objection:

“Mr. Swimmer: To which counsel for the defense objects on the grounds that further offer of proof is for one and only purpose and that is to prejudice and influence the jury against the defendant. We have admitted the former convictions do exist and that further admissions will tend to do no more than inflame the jury against this defendant since this evidence has been admitted there is no evidence left.”

When this objection was made, the assistant county attorney withdrew his offer.

In view of the stipulation made by the counsel for the defendant, coupled with the objection herein above noted, it is obvious that this contention is groundless.

It was contended that the court should have given an instruction on circumstantial evidence and an instruction on the weight to be given to the possession of recently stolen property. The confession of the defendant is direct evidence, and in view of his confession it was not necessary to give any instruction on circumstantial evidence. However, the record discloses that an instruction on circumstantial evidence was given, although there was no instruction on the effect of defendant’s possession of recently stolen property.

The defense was based wholly upon the contention that the defendant did not know right from wrong at the time the crime was committed. The defendant did not testify and no explanation whatever was attempted to be made as to the possession of the stolen property. In view of the confession of the defendant, and the other evidence of the state, the court did not err in failing to give such instruction. We again point out that where counsel representing one accused of crime is not satisfied with instructions which are given, it is their duty to request a proper instruction. Counsel who represent the defendant now on appeal did not represent the defendant in the trial of the case, but he was represented by able counsel who did not choose to request such an instruction.

Lastly, it is contended that the defendant did not know right from wrong at the time the automobile was taken. Medical testimony was introduced to show that the defendant was suffering from syphilis of the central nervous system and that a victim of this disease has lapses of memory, and that if the defendant had been drinking, his ability to differentiate right from wrong would have been definitely impaired. Their testimony was that the defendant had occasional mental lapses and that if he took an automobile during one of those lapses he would not know right from wrong. There was no evidence that defendant at the time he stole the automobile was in such condition, although there was proof from the policemen that after they got the defendant to the jail they detected the odor of liquor on his breath. The defendant appeared to act normally to the policemen, and when questioned by the officers to explain his possession stated that he had borrowed the car from a friend; although, later in the questioning he admitted that he had stolen it.

The question of the defendant’s sanity at the time of the Commission of the crime was fully submitted to the jury by proper instructions; and, under the record, this court would not be justified in holding that there was not sufficient evidence to sustain the verdict of the jury on this question.

The judgment and sentence of the district court of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    GILBERT COE v. STATE.
    No. A-10818.
    April 7, 1948.
    (192 P. 2d 291.)

      Sam Y. Colby, of Madill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal from a conviction sustained in the county court of Marshall county for the alleged offense of unlawful transportation of intoxicating liquor.

Harmon Spicer, former sheriff of Marshall county, testified that he saw the defendant, Gilbert Coe, about 8:00 a. m., on August 20, 1946, crossing a street in Madill; that Coe was driving a Ford automobile; that he followed him and saw him driving up behind the building occupied by the Sportsman’s Club; that the defendant got out of the car and walked into the building, followed by the officer; that defendant walked to the front of the building, pulled a pint of tax-paid whisky and handed it to one Amos DaVault, who was the owner of the beer parlor; that he, the sheriff, pulled a pistol and ordered them not to break the bottle; that he arrested the defendant for the transportation of said whisky and placed him in jail.

Amos DeVault testified for the state that he was proprietor of the Sportsman’s Club where they played billiards and dominos, and also beer was sold; that on the morning of August 20, 1946, the defendant came into his place of business followed by the sheriff; that the first time he saw the pint of whisky was when the defendant handed it to Mr. Spicer; that the sheriff had his gun out when he came into his place of business.

The defendant testified in his own behalf that he was 24 years of age and had lived in Marshall county for about twelve years; that he was an ex-soldier, having-made two overseas invasions during World War II; that on the morning of August 20, 1946, he was feeling badly and in a run-down condition caused from being drunk the night before; that he took a pint of whisky and placed it under his shirt and drove to the Sportman’s Club for the purpose of getting a coca cola to drink with the whisky; that the whisky Avas not in sight; but the sheriff ran up and grabbed him and pulled the whisky out from under his shirt; that the sheriff had his gun in his hand when he did so; on cross-examination the defendant admitted that since his return from the army he had done very little except gamble. He had done some work, however, as a carpenter.

The verdict of the jury reads as follows:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant Gilbert Coe guilty as charged in the Information herein and assess his punishment at a fine of $50 and a term in the County Jail of thirty days suspended sentence.”

It is contended by defendant that this verdict is indefinite, uncertain, and insufficient to authorize the court to impose the judgment and sentence against the defendant.

There have been many cases before this court in which the jury by its verdict has fixed the penalty to be imposed upon the accused, but at the same time there was included in the verdict a recommendation by the jury that the sentence be suspended during good behavior. In those cases the recommendation of the jury has been treated as surplusage and not a part of the verdict as such. Estes v. State, 35 Okla. Cr. 335, 250 P. 809; Cole v. State, 70 Okla. Cr. 109, 104 P. 2d 981; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671; Knopp v. State, 49 Okla. Cr. 416, 295 P. 228; Teel v. State, 53 Okla. Cr. 200, 11 P. 2d 197; Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834.

In each of the above cases this court stated that the verdict returned by the jury was improper but not prejudicial to the defendant, and therefore not reversible error.

In the instant case, the verdict of the jury is different from that returned in any of the above mentioned cases. Here there was no recommendation of the jury that suspended sentence be given but the “thirty days suspended sentence” is written into the verdict as a part of the verdict.

By statute it is provided:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.” Tit. 22, § 919, O. S. 1941.

This court has held that the verdict must be certain, positive, and free from all ambiguity. It must convey on its face a definite and precise meaning, and should show just what the jury intended. An obscurity which renders it at all doubtful will be fatal to it. Smith v. State, 83 Okla. 392, 177 P. 2d 523. See, also, State v. Pearce, 136 Mo. 34, 37 S. W. 815; Rea v. State, 6 Okla. Cr. 366, 118 P. 815; Wingfield v. State, 38 Okla. Cr. 435, 283 P. 158; George et al. v. State, 28 Okla. Cr. 388, 231 P. 318; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915.

It has been held that the county court is not authorized to suspend only the jail sentence in a conviction for violation of the intoxicating liquor law. State v. Smith, 83 Okla. Cr. 188, 174 P. 2d 932, 933. It was impossible, therefore, for the court under the law to follow the verdict of the jury. It was rendered in such form that the court had to speculate upon the intent of the jury and as to whether the jury would have returned such verdict if they had known that the sentence could not have been suspended. This was a very close case where the information was loosely drawn and that question together with the question as to whether the search was lawful without a warrant and all other close questions were resolved against the accused. Since it was a close case involving only a small amount of whisky, the jury might not have returned a verdict of guilty if they had known the law pertaining to the granting of suspended sentences, and that it was impossible for the court to have followed the verdict which was rendered.

In State v. Smith, supra, it was held:

“Statute authorizing court to suspend sentence does not authorize the suspension of just a portion of the judgment and sentence, but if suspension is granted it must be of entire judgment.
“Act of county court in suspending jail sentence imposed on conviction for unlawful possession of intoxicating liquor upon condition that accused pay fine and costs is unauthorized and the order of the court suspending a part of said judgment and sentence is a nullity.”

It is our opinion that the court at the time the verdict was returned should have directed them to reconsider it and should not have received it until it had been rendered in some form from which the intent of the jury could have been clearly understood.

There are other assignments of error pertaining to the giving of instructions. We think the court was correct in his view of the law and that it was immaterial as to the intent with which the liquor was transported. There is a distinction to' be drawn between the offenses of unlawful transportation of intoxicating liquor and the unlawful possession of intoxicating liquor. In the latter offense, the intent to sell, barter, give away or otherwise furnish, is an essential ingredient of the crime, but such intent is not an ingredient of illegal transportation of whisky.

For the reasons hereinabove stated, the judgment and sentence of the county court of Marshall county is reversed and remanded with instructions to grant defendant a new trial.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    FRANK FORD PETERSON v. STATE.
    No. A-10971.
    April 7, 1948.
    (192 P. 2d 286.)

      H. M. Redwine, David A. Kline, and Garland H. Hope, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Frank Ford Peterson, was charged by indictment in the district court of Oklahoma county with the crime of murder; was tried, convicted of manslaughter in the first degree and sentenced by the court to serve a term of seven years in the State Penitentiary, and has appealed.

The first assignment of error is that the evidence was insufficient to sustain the judgment and sentence, and that the court erred in refusing to sustain a demurrer to the evidence. This necessitates a brief statement of the evidence.

Defendant was charged with killing James Brown in Oklahoma City on May 18, 1947, “by beating the said James Brown on and about the head and body with a certain piece of 2-inch board, approximately 4 inches wide and 6 feet long,” inflicting mortal- wounds which caused the instant death of the said James Brown. All of the parties involved were members of the Negro race, and lived in Oklahoma City.

Defendant, 47 years of age, resided with his wife, who was 27 years old, in half of a duplex, located at 1112 South Harvey, near southwest Eleventh street, in Oklahoma City. They had six children, from three months to seven years of age. On the night of May 17, 1947, defendant’s wife left their home with his consent, and the understanding that she would return by 12 o’clock. She soon met up with James Brown, with whom the evidence revealed she had been keeping company for a. period of two years. Together they visited several “night spots,” drinking beer, and about 3:00 o’clock in the morning went to a hotel and entered a room therein. The wife of defendant, according to her testimony, left the room about 4:30 in the morning, and went to the home of a friend, Mamie Holland, being afraid to go home at that hour. Prior to her arrival there, and about 4 o’clock that morning, her husband, the defendant, had gone to this place to borrow money for the purpose of buying milk for the baby. He did not get any money and returned to his home, but later went back, and found his wife there, and they returned to their home together, between 6 and 7 o’clock in the morning. Some time around 9 o’clock James Brown appeared at the home of the defendant and was admitted. Some conversation took place, and he left, but returned about 10 or 10:30 that morning. The defendant and his wife engaged in a quarrel, and James Brown and the defendant had a fight in the house. Defendant went out the door, and was standing on the outside, inviting Brown to come out of the house, and stating, as testified by a disinterested witness, Robert Lee Bradford, “Come on out, I am going to kill you.” He at that time had the board above described in his hand. Brown came out of the door with a broom in his hands, and was running from the defendant. When he had gone some 20 to 25 feet from the defendant, he fell, and before he was able to get up, the defendant struck him with the board. He was struck on the head and body five times. From the results of these blows he died.

The witness Bradford was an eyewitness to the killing, and was a very fair and impartial witness. He lived on the other side of the duplex occupied by the defendant. His testimony was fully corroborated by Robert E. Lee, who was an eyewitness to the killing. Both of these witnesses testified that deceased was struck by the defendant while he was trying to get up, after falling, and that after striking him a number of times, defendant turned and walked away. He was arrested soon thereafter by the police officers, who were called to investigate the difficulty.

A written statement was made by the defendant to the officers, and the same was admitted in evidence, without objection. It is unnecessary to quote or refer to it. Under the defendant’s own statement, as well as the testimony of his wife who testified in his behalf, he was at least guilty. of manslaughter in the first degree. It is unnecessary to further review the evidence. It was amply sufficient to sustain the judgment and sentence, and the court did not err in refusing to sustain a demurrer to the evidence.

Defendant’s second assignment of error is the refusal of the court to give certain requested instructions.

We have carefully examined these instructions, and it is unnecessary to quote them. In our opinion they were not “correct statements of the law.” A careful consideration of the instructions given by the court reveals that they were correct as shown by the facts in this case. The law of self-defense was given by the court to the jury, and his rights were properly protected by the instructions of the court.

Defendant’s third assignment of error is that the court erred in giving an additional instruction to the jury when they returned to the courtroom after having-retired to consider their verdict. This instruction was after a request by the jury as to an interpretation by the court of the term “aggressor.” The court was very careful in his remarks to the jury, but after a second request, gave a written instruction, numbered 12A, which defined this term more fully.

In the case of Smith v. State, 19 Okla. Cr. 14, 197 P. 514, 516, an instruction almost identical with the one given by this court was approved by this court. There the court said:

“Conceding that the deceased brought on the difficulty by striking the defendant with a wrench, if the deceased in good faith thereafter withdrew from the difficulty and fled from the defendant, and the defendant pursued, overtook, and inflicted upon the deceased the fatal knife wound, and at the time said fatal wound was inflicted the defendant was in no danger, either real or apparent, of death or great bodily harm, at the hands of the deceased, he certainly could not successfully invoke the doctrine of self-defense. The law of self-defense is a rule of necessity, and can only be invoked in the justification of a homicide in order to prevent an actual or reasonably apparent infliction of death or great bodily harm upon the slayer, and the necessity must be imminent at the time of the killing and not prior thereto. Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046.
“If the deceased abandoned the difficulty in good faith and fled, and the defendant pursued, overtook, and inflicted upon him a fatal wound, the defendant became the aggressor, and could not successfully plead self-defense. Smith v. State, 14 Okla. Cr. 250, 174 P. 1107.
“ ‘Where the assailant retreats in good faith, and the assaulted person pursues and kills him with a deadly weapon, the killing cannot be justified as in self-defense.’ Gransden v. State, 12 Okla. Cr. 417, 158 P. 157.”

The trial court did not err in giving instruction No. 12A.

The last assignment of error is with reference to the alleged misconduct of a juror.

On the hearing of the motion for new trial, the defendant testified to hearing a conversation between three of the jurors, during a recess of the court at the time of the trial. The evidence revealed that he told his counsel of this conversation prior to the submission of the case to the jury, and that the matter was not mentioned to the trial court. Counsel for defendant testified that when the defendant reported this incident to him, he stated to defendant, “Well, let it go. I guess that is all right.” Under the above statement, we do not consider there was error in overruling the motion for a new trial.

In the case of Arms v. State, 49 Okla. Cr. 34, 292 P. 76, 77, it is said:

“Where misconduct of a juror comes to the knowledge of counsel during the progress of the trial and such fact is withheld and no objection made until after the verdict, such misconduct, unless it constitutes fundamental error, is waived.”

For the reasons herein stated, the judgment of the district court of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.


text:
    MARVIN FARMER v. STATE.
    No. A-10834.
    April 15, 1948.
    (192 P. 2d 716.)

      Sam Y. Colby, of Madill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Marvin Farmer, was charged by an information filed in the county court of Marshall county with the unlawful transportation of 204 pints of whisky, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

The chief contention presented for a reversal of this case is that the court erred in overruling the motion to suppress evidence filed and presented by the defendant prior to the beginning of the trial.

The defendant called two witnesses in support of his motion to suppress evidence. Joe Everett, the sheriff, testified that on the night of September 11, 1946, about 9:00 o’clock, while armed with search warrants for the person, the automobile, and premises of one Joe Is-bell, and for the automobile of one Gilbert Coe, he went to the premises of Joe Isbell in the northeast part of the town of Madill. When he arrived there, Joe Isbell’s car was gone and there was only a small light burning in the house. He and his deputy, Luther Henson, concealed themselves behind a stone wall adjacent to the premises of Isbell. A few minutes after they had hidden themselves, an automobile drove into the Isbell driveway. It was shortly followed by another automobile which also parked in the Isbell driveway. The sheriff and his deputy walked up to the two' automobiles; Gilbert Coe was in one of the automobiles and the defendant, Marvin Farmer, was in the other automobile. Joe Isbell was not in sight, but just before they arrived at the cars they heard Isbell say “Let’s get this stuff out of here.” The car doors were open and the parties were moving whisky from one car to the other. One of the cars did not have a top on it and they saw a case of whisky that was open when they flashed the light in the car as they passed.

The witness testified that he did not serve the search Avarrants. In this regard he testified “When I went up to present the search Avarrants there was whisky showing and I never pulled the search warrants.”

The only other witnesses called in support of the motion to suppress evidence Avas Mrs. Joe Isbell. She testified that she was at her home on the night of September 11, 1946; that her husband was not there; that Marvin Farmer drove up in an automobile and came in the house and stayed a few minutes and that then Gilbert Coe drove in; that they Avere looking for her husband who Avas not at home but who had called a few minutes before that from the Corner Cafe; that she later heard the officers talking and Avent out in the yard and saw them making the search; that she did not know anything about the whisky.

We think, under this evidence, the court properly overruled the motion to suppress. The facts are not similar to the facts in the cases cited by defendant’s counsel in support of his contention in Avhich cases officers had stopped automobiles on the public highway for the purpose of searching them. Here the defendant and Coe drove their automobiles on to the driveway at Isbell’s place and stopped of their own accord. The officers had a lawful right to be where they were hidden. It is true that the officers did not serve the search warrants and they are not relied upon by the state as a basis for the introduction of the evidence of the seizure of the intoxicating liquor. The facts bring this case within the rule of law frequently stated by this court that, where an officer sees a person violating the law in his presence, he has the right to search the person and his immediate possessions without the necessity of a warrant. Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545; Wirth v. State, 79 Okla. Cr. 59, 151 P. 2d 819; O’Dell v. State, 80 Okla. Cr. 194, 158 P. 2d 180.

The facts in the instant case are quite similar to the facts in Tripp v. State, supra, where this court held that it was unnecessary for the officers to have a warrant for the reason that the defendant violated the law in their presence.

In O’Dell v. State, supra, this Court held [80 Okla. Cr. 194, 158 P. 2d 181]:

“Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made. * * *
“Burden is on defendant to introduce evidence sustaining his motion to suppress evidence on ground of illegality of search of defendant’s automobile.
“If proof on motion to suppress evidence shows that defendant did not commit misdemeanor in presence of arresting officer, but that said arrest for the alleged misdemeanor was a mere subterfuge to justify search of defendant’s automobile, trial court has duty to sustain motion to suppress.”

The defendant did not testify on the motion to suppress evidence nor in his own behalf at the trial. He did not claim ownership or possession of the whisky or automobile at anytime. Under the circumstances herein revealed by the record, the motion to suppress was properly overruled.

The brief of the defendant is devoted principally to an argument and citation of authorities in support of the motion to suppress evidence. However, there is a contention presented that the trial court made inflammatory statements in the presence of the jury which prejudiced the defendant.

During the trial of the case, the sheriff, on cross- examination, reiterated the testimony given on the motion to suppress evidence that he had a search warrant for the person, automobile, and house of Joe Isbell. He further testified that he had made a return back to the justice of the peace who issued the warrants. Counsel for defendant who was cross-examining him on this question then made a demand that the warrants be produced to which the trial court replied:

“By the Court: Your demand, Mr. Colby, will be disregarded and denied because since there was no search warrant used and none claimed to have been used, whether he had one or didn’t have one is immaterial in this case.”

Later at the conclusion of the trial, the following appeared :

“By Mr. Colby, Counsel for defendant: I want to take exception to one of the instructions there. Let the record show that counsel for the defendant has not had an opportunity to read the instructions and—
“By the Court: Strike that from the record and the attorney for the defendant will be permitted to read the instructions if he doesn’t take over thirty minutes. I would like to remind the attorney that he is killing time for about twenty-five men.”

The first statement of the court hereinabove quoted does not appear to be improper. However, the latter statement of the court pertaining to the instructions was uncalled for and highly improper. The defendant’s counsel was perfectly within his rights in the statement that he made and the demeanor of the . tidal court in making the reply to counsel and stating that he was “killing time for about twenty-five men” cannot be approved by this court. In a close case, such conduct would constitute reversible error because of the possible prejudicial effect it might have upon the minds of the jury.

There is just nothing which had arisen which should have caused the court to lose his judicial balance and make the cutting remarks to counsel for the defendant. However, under the record, we cannot possibly perceive how the defendant was prejudiced by this unfair remark. The defendant was caught in possession of over 200 pints of whisky. He did not testify at the trial. The jury merely slapped his wrists when they limited his punishment in the verdict to the minimum penalty of thirty days in jail and a $50 fine. This verdict definitely discloses that the jury was not prejudiced against the defendant.

It is our opinion that there are no substantial errors of law in the record which require this court to reverse the judgment of conviction. The judgment and sentence of tbe county court of Marshall county is accordingly affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    FLOYD BELL v. STATE.
    No. A-10826.
    April 15, 1948.
    (192 P. 2d 714.)
    Gilmer, Weaver & Kennon, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal by the defendant, Floyd Bell, from a conviction in the district court of Payne county of the offense of assault and battery, wherein the defendant was given the maximum punishment of 30 days imprisonment in the county jail and a fine of

Two propositions are presented on belxalf of defendant : First, the evidence is insufficient to sustain the conviction; second, the judgment is excessive upon any reasonable view of the evidence. These assignments will be considered together.

The defendant was an engineer with the Wolfe Construction Company and engaged in work in the city of Stillwater on October 6, 1946, at the time of the alleged assault. The prosecuting witness, Dorsey McVickers, was an itinerant barber who had been in Stillwater for about one week prior to the alleged assault, and was staying at the same rooming house where the defendant lived. During the week that McVickers had lived in Stillwater, he and defendant had become acquainted. Some time during the morning of Sunday, October 6th, under the undisputed evidence, the defendant and McVickers were visiting and a conversation arose between them as to taking a drink of whisky. The defendant informed McVick-ers that he had a part of a fifth of whisky in his room and invited McVickers to his room for a few drinks. They went to defendant’s room and stayed for an hour or two, during which time they drank the whisky which belonged to the defendant. The prosecuting witness then suggested to defendant that if he could find some more whisky, he, the prosecuting witness, would pay for it. Accordingly, they got into the defendant Bell’s automobile and drove east of Stillwater, about nine miles to purchase some whisky. At this point the evidence of the defendant and the prosecuting witness varies.

McVickers testified that he dozed off to sleep and was awakened by the defendant cutting him on the body with his pocketknife. Whereupon a fight started which lasted four or five minutes during which they rolled over in a ditch at the side of the road. The prosecuting witness said he hit the defendant above the ear causing the defendant to roll over in the ditch where defendant commenced to groan; that he told the defendant to get np and bring him to town, that he was bleeding to death. The defendant thereupon got up, got into the automobile and drove McViekers back to Stillwater and inquired at a house for the hospital, and took McViekers to the hospital.

The defendant testified that when they arrived at the bootlegger’s house, the witness McViekers went into the house and returned in a few minutes with another man and a quart of whisky in his left hand. McViekers was arguing with the bootlegger about the price of the whisky. The defendant got out of the car after the argument had continued for a minute or two and told Mc-Vickers to either pay for the whisky or give it back to the bootlegger so they could return to town; that he, the defendant, tried to get McViekers back into the car and Me-Vickers started cursing and hit him on the neck with his fist; that the defendant then got in the car and started to Stillwater; that McViekers commenced to call the defendant a coward, and cursed him and finally started striking him, which forced the defendant to stop the car; that they got out of the car and McViekers had a pair of knucks on his right hand. He struck the defendant with the knucks and knocked him over into the ditch; that he then jiimped on top of defendant and started kicking him with Ms feet; that defendant then pulled his pocketknife, which was a small knife with about a two inch blade, and started cutting at McViekers; that he kept on slashing at him until Bell got on his feet; that by that time McViekers had started bleeding, so Bell quieted him down and put him in the car and started back to town; that on the way to town McViekers hit Bell two or three times; that after arriving at town defendant inquired about the hospital and after it was located, he drove to the hospital and left the defendant.

The Doctor who examined MeVickers’ wounds at the hospital testified that he had several lacerations, the deepest of which was about three-fourths of an inch deep. That he had lost very little blood, and appeared to be in a drunken condition at the hospital. Bell was arrested on Tuesday. The deputy sheriff who made the arrest testified as to Bell’s condition as follows:

“Q. When you saw Bell on Tuesday, did you notice his condition? A. He had two black eyes. Q. Anything else on his face? A. Some scratches and bruised places and cuts. Q. How about his nose? A. It looked like he had hit him on the nose. Q. And his eyes were black. A. Yes, sir. Q. How about the side of his head? A. A little scratched place. Q. Other skinned places on his head. A. Along in here and on his nose and the side of his head. Q. Pretty well skinned up and black eyes. A. Yes, sir.”

From the foregoing statement it is readily to be seen’ that there was a conflict in the testimony of the defendant and prosecuting witness as to how the fight started. If it started in the manner testified by MeVickers, then the defendant was guilty; and if the slashing with the knife was made by defendant in the manner related by him, and as a result of unlawful acts first commenced by prosecuting witness, then defendant was not guilty, because he was acting in his own necessary self-defense. This disputed testimony raised an issue of fact for the determination of the jury.

It appears that both of these men became intoxicated and each contributed to the affray because of their intoxicated condition. No charges at all were filed against the prosecuting witness. His injuries were not much more severe than those sustained by the defendant, although they could have been serious if the knife wielded by the defendant had struck an artery.

Under all the circumstances and considering the relative injuries imposed by the parties, we have come to the conclusion that justice will be met by a modification of the judgment and sentence imposed against the defendant from a term of 30 days imprisonment in the county jail and a fine of $100, by eliminating the jail sentence and providing for the payment of the fine.

It is therefore ordered that the judgment and sentence of the district court of Payne county be modified by reducing the sentence imposed against the defendant, Floyd Bell, from 30 days’ imprisonment in the county jail and a fine of $100, to a fine of $100, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: JONES, J. BAREFOOT, P. J.

text:
    Ex parte J. H. HILL.
    No. A-11023.
    April 21, 1948.
    (192 P. 2d 849.)

      Tbad L. Klutts, of Oklahoma City, for petitioner.
    Warren H. Edwards, County. Atty., of Oklahoma City, for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, J. H. Hill, to secure his release from confinement in the county jail of Oklahoma county. The petitioner was tried and convicted in the district court of Oklahoma county of the crime of receiving stolen property. On appeal to this court, his conviction was affirmed. Hill v. State, 78 Okla. Cr. 384, 148 P. 2d 992. The mandate of the Criminal Court of Appeals was issued by the Clerk of Criminal Court of Appeals on June 27, 1944, and spread of record in the district court of Oklahoma county on July 1, 1944. No commitment was issued at the time the mandate was spread of record and nothing further was done in the case until a warrant was issued for the arrest of the petitioner on February 17, 1948, on which warrant the petitioner is now confined in the county jail of Oklahoma county to serve the judgment and sentence of the district court of Oklahoma county, and the mandate of the Criminal Court of Appeals affirming said judgment of conviction.

The facts further disclose that at the time the mandate of the Criminal Court of Appeals was filed in the office of the court clerk of Oklahoma county, that the petitioner was a resident of Oklahoma county and listed in the telephone directory; that he had operated a business in Oklahoma City and had had occasion to be in the courthouse at various times on business during the period of time between July 1, 1944, and the date of his arrest on February 17, 1948.

Based on the above facts, petitioner contended that the district court of Oklahoma county had lost jurisdiction of the petitioner and jurisdiction to enfore the judgment which had been rendered by reason of the long lapse of time between the issuance of the mandate and the arrest of the petitioner.

We think this case is controlled by the decision of our court in the case of Ex parte Porter, 60 Okla. Cr. 327, 64 P. 2d 1235, and the other decisions of this court therein cited.

The law of that case as shown by the syllabus is as follows:

“The time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements and, where the penalty is imprisonment, the sentence may be satisfied only by the suffering of the actual imprisonment imposed.
“Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment and sentence.
“Expiration of time without imprisonment is in no sense an execution of the sentence.
“Judges, county attorneys, and sheriffs have no power or authority to pardon persons convicted in the courts of this state. The power to pardon after conviction is, under the Constitution, vested exclusively in the Governor.”

In the body of the opinion it is stated:

“The uniform holding of this court is that .the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A., N. S., 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Oliver, 11 Okla. Cr. 536, 149 P. 117, 119; Ex parte Smith, 17 Okla. Cr. 578, 190 P. 1092; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284. And see Ex parte Riggert, 33 Okla. 303, 125 P. 485.
“In Ex parte Alexander, supra, it was held that:
“ ‘The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.'
“ ‘Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment. * * *
“ ‘ “Expiration of time without imprisonment is in no sense an execution of the sentence.” ’ * * *
“In the case of Ex parte Oliver, supra, we said: ‘The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of court, whose duties with respect to its judgments are purely ministerial.’ ”

The case of Ex parte Tucker, 73 Okla. Cr. 124, 122 P. 2d 174, cited and relied upon by the defendant presented a peculiar state of facts where the prisoner presented himself to the sheriff’s office and asked to be committed, but Avas refused and a period of eleven years elapsed before he was finally arrested. The factual situation in that case is so utterly different from the one in the instant case that we do not think the decision in the Tucker case should control in the disposition of the instant case. However, if there is anything in the opinion of Ex parte Tucker which is contrary to the views herein expressed, the same is modified to conform to the rules of law herein set forth.

For the foregoing reasons, the writ of habeas corpus is denied.

BRETT, J., concurs. BAREFOOT, P. J., concurs in conclusion.

BAREFOOT, P. J.

I concur in the conclusion reached in the majority opinion, by reason of the facts presented in this case, but cannot agree to the statement: “The only way of satisfying a judgment judicially is by fulfilling its requirements.”

If it is intended by this statement to hold that no act of the court can be had or done which causes the release of one charged Avith a crime without serving the sentence imposed, I cannot agree that this is the law.

There are many instances where by unreasonable delay on the part of courts by their acts and conduct it would be improper to force a defendant to actually serve a sentence which would be contrary to law and justice.

The case of Ex parte Tucker, 73 Okla. Cr. 424, 122 P. 2d 174, cited in the majority opinion, and cases cited therein, fully state the reason for the rule. Also my dissenting opinion in the case of Boykin v. State, 86 Okla. Cr. 175, 190 P. 2d 471.


text:
    VERNON CRABB v. STATE.
    No. A-10839.
    April 28, 1948.
    (192 P. 2d 1018.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Mac Q. Williamson, At-ty. G-en., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Vernon Crabb, was charged by information filed in the district court of Stephens county with committing the crime of burglary in the second degree while acting jointly with one Burton Taylor. Burton Taylor entered his plea of guilty to- said charge and at the time of the trial was serving a term of imprisonment in the State Penitentiary pursuant to the judgment and sentence pronounced against him. The first trial of the defendant, Crabb, resulted in a hung jury.

At tbe second trial, a verdict of guilt was returned fixing the minimum punishment of two years imprisonment in the penitentiary. Judgment and sentence was pronounced pursuant to the verdict of the jury, and defendant has appealed.

The proof of the state showed that on Friday night, February 22, 1946, a filling station owned by one Fred Hickman in the city of Duncan was broken into and a radio, an electric battery, three jackets, and approximately $15 in money were taken. On Saturday afternoon, February 23, 1946, which was the day following the burglary, the codefendant, Taylor, entered a pawnshop to attempt to pawn a guitar and radio. The owner of the pawnshop bought the guitar and testified that when he asked Taylor to sign a receipt that he signed a name which was unintelligible which made him suspicious that it was a fictitious name; that he walked out to the car which Taylor was driving and took the car number and a short while later reported the incident- to the police; that he did not see the defendant, Crabb, with Taylor at anytime; but that he did see Crabb walking on the sidewalk in the front of his store by himself.

The police officers checked the tag number which was furnished to them by Wilson and learned that it belonged to the defendant’s mother. Shortly thereafter, Burton Taylor was arrested. At the time of his arrest he was wearing one of the leather jackets which had been taken in the burglary of the filling station. About fifteen minutes later the defendant, Crabb, was arrested. He did not have any of the stolen property on his person at the time of his arrest, but in the Buick automobile which belonged to the defendant’s mother, two of the jackets taken in the burglary were found.

The following Sunday morning, the defendant, Crabb, and Taylor were taken to the police station to be fingerprinted and photographed. Over the strenuous objection of counsel for the defendant the officer who took the fingerprints was allowed to detail a conversation he had with Taylor while the defendant, Crabb, was sitting about twelve feet away, in which statement the said Taylor related that he and Crabb had gone to Ardmore together and that while driving together in the automobile they had picked up a Negro and bought the clothes from him, and Taylor further stated that the radio, which was later identified as stolen property, belonged to him and Crabb. The officer further testified that the defendant, Crabb, did not talk and made no statement at all to him. Tn this connection the record discloses the following:
“Q. Did you have any conversation there with them? A. Yes, sir, I did. Q. Tell the court what the conversation was. By Mr. Sullivan: Just a minute, limit your question to what the conversation was with this defendant. By Mr. Marshall: And Burton Taylor, if they were together. By Mr. Sullivan: Any conversation with Burton Taylor, we claim is incompetent and irrelevant. If you arrest me with some other person or some other man and he says something about me, it is not binding on me. By Mr. Marshall: It is, unless you explain it at the time. By the Court: If he made any declarations that incriminated this man, he could speak up if he wanted to. By Mr. Sullivan: Note our exceptions to the remarks of the county attorney and the court with reference to any duty of this defendant to speak up and say anything. By the Court: Objection overruled. By Mr. Sullivan: Exceptions. Q. (By Mr. Marshall) All right, just what did you ask them about? Did you ask them about this property? By Mr. Sullivan: Tell him to ask who, Your Honor. By the Court: Let him state who he asked. Q. Did you talk to Crabb here? A. I talked to Crabb and Taylor both. They were both in the room. Q. Both in the room together? A. Yes, sir. Q. Wliat did Crabb say? A. Crabb didn’t talk. Q. What did Taylor say in Ms presence? By Mr. Sulliyan: We object to wbat Taylor said in Ms presence as not binding on this defendant and prejudicial to Ms rights, and for the further reason there was no duty on the part of this defendant to deny, confirm, or make any comment of any kind upon any statement made by Burton Taylor. By the Court: Overruled. By Mr. Sullivan: Exceptions. A. Taylor told the story that they had bought, I presume these were the clothes, they had some clothes and a guitar, and I believe they said they bought the clothes — they had picked up a Negro en route to Ardmore, and bought the clothes from this Negro, and they claimed the radio. By Mr. Sullivan: You say They’, who said it? A. I mean in the presence of Crabb. Crabb didn’t make any statement. Crabb was sitting in the door of the room where he could have heard and did hear Taylor, because we were all present and Taylor did the talking. Taylor claimed that the clothes were bought from a Negro and the radio didn’t come out of our County. He inferred that it came from Lawton. Q. At that time, did they tell you where they lived? By Mr. Sullivan : This defendant now moves the court to strike that testimony from the consideration of this jury as not binding on this defendant and prejudicial to his rights. By the Court: Overruled. By Mr. Sullivan: Exceptions. Q. Was anything said about where they lived? A. They didn’t deny — that is, no, I am speaking of Taylor — he did the talking and Crabb was sitting in the door of the room, in a small office, and we were just talking in ordinary tones of conversation and there was nothing to keep Crabb from hearing the conversation — now whether he heard it, I couldn’t positively say. Q. Any how, you questioned them both and Crabb kept quiet? A. Yes, sir. Q. Where did they say they came from? A. Lawton. They said their home was at Lawton. Q. How did they say they traveled over there? By Mr. Sullivan: We object to the form of the question, when he says ‘how did they say.’ By the Court: Let him answer. By Mr. Sullivan: Exceptions. A. They claimed they were traveling — well, they were caught and didn’t deny it, traveling in this automobile, as I remember, sir.”

This court has often had occasion to discuss the law applicable to evidence such as that in question. In the recent case of Walker v. State, 80 Okla. Cr. 21, 156 P. 2d 143, it was held:

“Where a party charged with the commission of a crime is under arrest, and a third party in his presence makes a statement to the officers which tends to connect the accused with the commission of the crime, and the accused remains silent, such statement, and the fact that the accused remained silent, is not admissible in evidence against him, for the Constitution clothes the accused with the right of silence, and it would be absurd to say in one breath he has the right of silence, and in the next to hold that he could be forced to testify against himself by the very act of exercising his right.”

In the case of Roy v. State, 77 Okla. Cr. 405, 142 P. 2d 139, the law pertaining to the admissibility of this type of evidence is stated in the syllabus as follows:

“The declarations of a coconspirator or accomplice are receivable against his fellow conspirators when they accompany and explain acts done in pursuance of a concerted criminal purpose, if made during the pendency of the common criminal enterprise; if made at a subsequent period and merely narrative of past occurrences, they must be rejected.
“Where a party charged with the commission of a crime is under arrest, and a third party, in his presence, makes a statement to the officers, which tends to connect the accused with the commission of the crime, and the accused remains silent or denies such statement, it is error for the trial court to admit the testimony of the officers concerning such statement.”

In the body of the opinion it is stated:

“In the early case of Vaughan v. State, 7 Okla. Cr. 685, 127 P. 264, 42 L. R. A., N. S., 889, this court gave an extended discussion of the admissibility of this character of testimony. The law of that case is stated in the syllabus as follows:
“ ‘It is error in the trial of a criminal case for the court to admit testimony as to declarations between an officer who had accused under arrest and the State’s witnesses, or other persons, in the presence of the accused, tending to connect him with the offense charged, and that the accused remained silent as to such conversation; and, when a conviction results with such testimony before the jury, a new trial should be granted.’
“This decision has been followed in many other cases since that date. See Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A., N. S., 811; Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A. 1917D, 491; Ellington v. State, 24 Okla. Cr. 67, 215 P. 964; Patton v. State, 29 Okla. Cr. 66, 232 P. 454.
“In Towery v. State, supra, it is stated:
“ ‘Where a party charged with the commission of a crime is under arrest, and a third party in his presence makes a statement to the officers, which tends to connect the accused with the commission of the crime, and the accused remains silent, such statement, and the fact that the accused remained silent is not admissible in evidence against him, for the Constitution clothes the accused with the right of silence, and it would be absurd to say in one breath he has the right of silence, and in the next to hold that he could be forced to testify against himself, by the very act of exercising this right.’
“In Patton v. State, supra, it is held:
“ ‘Declarations of a defendant, made after the offense was committed, in the presence of a codefendant, are admissible against himself, but inadmissible against the other defendant.
“ ‘A defendant in custody is not called upon to contradict statements prejudicial to Mm, made in Ms presence, and, though they are not contradicted, they are not admissible in evidence.’
“In the body of the opinion, it is stated:
“ ‘The declarations of a coconspirator or accomplice are receivable against his fellows when they accompany and explain acts done in pursuance of a concerted criminal purpose, if made during the pendency of the common criminal enterprise; if made at a subsequent period and merely narrative of past occurrences, they must be rejected. Bohannan v. State, 24 Okla. Cr. 103, 215 P. 1078.’ ”

It is clearly apparent from the above authorities that the admission of this evidence constituted reversible error.

The information charged the defendant with committing the crime of burglary in the second degree after a prior conviction of a felony. At the close of the state’s case, the county attorney in the presence of the jury made the following statement which is assigned as error:

“By Mr. Marshall: Comes now the state and asks the court to submit the question of the guilt of the defendant on the charge of burglary in the second degree, and the state waives the right to present any evidence or argument on the question of the defendant being a second offender or an habitual violator under the law.”

Upon the retrial of this case, if the county attorney does not wish to introduce proof as to the prior conviction of the defendant, he should delete that allegation from the information and not refer to it in his opening statement. The law is strict in guaranteeing to an accused a fair trial and in seeing that no unfair advantage is taken of him. To make the allegation of a former conviction of a felony in the information which is read to tbe jury as a part of the opening statement of the case by the county attorney where there is no intention to offer proof of this fact is clearly prejudicial to the rights of the defendant, as the statement of the county attorney that the accused had suffered a prior conviction of the felony will be accepted as true by some of the jurors, even though no proof of that fact is offered, and even though the court eliminates that issue from the consideration of the jury in his instructions.

Complaint is made that the evidence is insufficient to sustain the verdict. This is not one of those cases where we feel justified in saying that there is abundant evidence to sustain the conviction. We have hereinabove related some of the important facts pertaining to the guilt of the accused. While the evidence of guilt is not strong, there is evidence of the possession by the defendant in the automobile of recently stolen property, and this possession was unexplained. No evidence was offered by the defendant at the trial and at the time of his arrest he neither made nor attempted to mate any explanation of his possession of the stolen property. We have held in eases similar to that shown by this record that the evidence was sufficient to go to the jury for their determination as to the guilt of the accused. James v. State, 66 Okla. Cr. 462, 92 P. 2d 973; Robinson v. State, 67 Okla. Cr. 8, 92 P. 2d 1082; Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337; Hopper v. State, 81 Okla. Cr. 158, 160 P. 2d 942, 944.

In Hopper v. State, supra, this court stated:

“ ‘The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or if it is unsatisfactorily explained, or tbe explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict.’ ”

There are other assignments of error, but with the exception of those hereinabove discussed, the others appear to be without substantial merit, except the assignment of error directed to the alleged improper remarks of the county attorney in his losing argument to the jury. It is unnecessary to discuss this assignment of error as the county attorney probably realized when he made the statement that the argument was improper and the trial court stated at that time “it is probably reversible error”. Upon a retrial of this case, the county attorney should be careful not to make any statements in his argument which might appear to be a comment upon the fact that the defendant did not testify which argument is expressly forbidden by statute. Tit. 22 O. S. 1941 § 701.

For the reasons hereinabove stated, the judgment and sentence of the district court of Stephens county is reversed and the cause remanded for a new trial.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    MIKE CURTIS v. STATE.
    No. A-10786.
    April 28, 1948.
    (193 P. 2d 309.)

      L. C. Colter, of Nowata, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant below, Mike Curtis, was charged by original information in words and figures as follows, to wit:

“That Paul Vernon, Leroy Drake and Mike Curtis did in said county and state on or about the 16th day of January, 1946, A. D. and prior to the presentment hereof commit the crime of: Grand Larceny In that they wil-fully, unlawfully, and feloniously did take, steal and carry away seven (7) domestic animals, to-wit: hogs, of the value of $200.00, the personal property of Emma Hop-son, at about one-half mile north of Noxie store, in No-wata County, Oklahoma, with the intent and for the purpose of converting said hogs to their own use and benefit and depriving the said Emma Hopson of the use and benefit thereof.
“Contrary to the form of the Statute and against the peace and dignity of the State. * * *”

And by amended information in words and figures as follows, to wit:

“That Paul Vernon, Leroy Drake and Mike Curtis did in said County and State on or about the 16th day of January, 1946, A. D. and prior to the presentment hereof commit the crime of: Grand Larceny, in that they wil-fully, unlawfully and feloniously, by fraud and stealth, without the consent and against the will of the owner, did take, steal and carry away seven (7) domestic animals, to-wit: six (6) black Poland China hogs, five of which weighed about 200 to 250 pounds, and one of which weighed about 350 pounds, and one red hog which weighed about 250 pounds, worth and of the value of $200.00, the personal property of Emma Hopson, at about one-half mile north of Noxie store, in Nowata County, Oklahoma, with the felonious and fraudulent intent and purpose on the part of them, the said Paul Vernon, LeRoy Drake and Mike Curtis, to convert said hogs to their own use and benefit and permanently depriving the said Emma Hopson, the owner, of the use and benefit thereof.
“And the county attorney aforesaid, gives the court further to know and be informed that prior to the 16th day of January, 1946, to-wit: the 31st day of August, 1937, the said defendant, Leroy Drake, stood charged with the crime of grand larceny in the District Court of Osage County, Oklahoma, a court having jurisdiction of said offense, and on said 31st day of August, 1937, the said Leroy Drake was adjudged guilty and convicted of said crime so charged against him.
“And the county attorney aforesaid gives the court further to know and be informed that subsequent to the 31st day of August, 1937, and prior to the 16th day of January, 1946, to-wit: on the 27th day of May, 1939, the said defendant, Leroy Drake, stood charged with the crime of larceny of domestic animals in the District Court of Nowata County, Oklahoma, a court having jurisdiction of said offense, and on said 27th day of May, 1939, was adjudged guilty and convicted of said felony so charged against him as aforesaid.
“And the county attorney aforesaid, gives the court further to know and be informed that prior to the 16th day of January, 1946, to-wit: On or about the 7th day of June, 1927, in the District Court of the 5th Judicial District, at Roswell, in the County of Chaves, State of New Mexico, the said defendant, Mike Curtis, stood charged with a felony, to-wit, grand larceny, and on or about said day and date, the said Mike Curtis was adjudged guilty and convicted of a felony on said charge;
“And the county attorney aforesaid, gives the court further to know and be informed that subsequent to the 7th day of June, 1927, and prior to the 16th day of January, 1946, to-wit: on or about the 29th day of November, 1933, the said defendant, Mike Curtis, stood charged with a felony, to-wit: assault with a deadly weapon, in the District Court of the 5th Judicial District of New Mexico, a court having jurisdiction of said offense, sitting at Roswell, in Chaves County, and on or about said 29th day of November, 1933, the said defendant, Mike Curtis, was adjudged to be guilty and convicted of said felony in said court in said State of New Mexico;
“And the county attorney aforesaid, gives the court further to know and be informed that subsequent to the 29th day of November, 1933, and prior to the 16th day of January, 1946, to-wit: on or about the 1st day of August, 1942, the said defendant, Mike Curtis, stood charged with a felony in the District Court of Montgomery County, Kansas, sitting at Independence in said county and state, and on or about the 1st day of August, 1942, the said defendant, Mike Curtis, was adjudged to be guilty and convicted of said felony,
oq:). ^suiuSu aqu^R'ig aq^ jo iujoj aqq 0} iunaquoQ,, peace and dignity of the State. * * *”

A casual examination of the amended information, upon which this case was tried, reveals that it is broad enough in its allegations to allege both the crime of grand larceny and the crime of larceny of domestic animals. Title 21 O. S. A. § 1701 defines larceny as follows, to wit:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Title 21 O. S. A. § 1704 defines grand larceny as follows, to wit:

“Grand larceny is larceny committed in either of the following cases:
“1. When the property taken is of value exceeding twenty dollars. * * *”

Title 21 O. S. A. § 1705 fixes the punishment for grand larceny as follows, to wit:

“Grand larceny is punishable by imprisonment in the penitentiary not exceeding five years.”

It clearly appears in the amended information that the pleader charged all the essential elements of grand larceny by alleging that the talcing of the property (in this case the hogs).was accomplished by fraud and stealth and with the intent to deprive Emma Hopson, the owner, of said hogs thereof and by alleging that they were of the value of more than twenty ($20) dollars, in this case to wit: $200.

Title 21 O. S. A. § 1716 defines larceny of domestic animals in part as follows, to wit:

“Any person in this State who shall steal any * * * cow, or hog, shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for a term of not less than three years, nor more than ten years * *

It clearly appears that the amended information charges all of the essential elements of larceny of domestic animals, to wit: that the defendant did “steal (from Emma Hopson) and carry away seven (7) domestic animals, to wit: Six (6) black Poland China hogs, five of which weighed about 200 to 250 pounds, and one of which weighed about 350 pounds, and one red hog which weighed about 250 pounds * * To this information the defendant demurred and, among other things, alleging the information was duplicitous. Thus the objection to the information was properly raised. Moreover, before the introduction of the evidence defendant moved to suppress the evidence on the grounds that said information was duplicitous. Both the said demurrer and the motion to suppress were overruled, to which the defendant excepted.

Upon this state of the record the case was tried. At no stage of the proceedings did the state attempt to prove the value of the property allegedly stolen. Thereafter the evidence was concluded and thereupon the court proceeded to abandon the charge of grand larceny and to instruct the jury upon the theory of larceny of domestic animals. The jury returned a verdict of “guilty as charged in the information,” and then proceeded to fix the penalty as for the crime of larceny of domestic animals and as for a second and subsequent offender at twenty-five years in the penitentiary. Upon this verdict judgment and sentence was accordingly pronounced as for larceny of domestic animals and second or subsequent offender. Motion for new trial was overruled and this appeal perfected.

Among other contentions defendant asserts that the original preliminary complaint, the information and the amended information charged grand larceny and that he is entitled to be tried upon the charge as laid in the amended information. This contention of the defendant we believe to be meritorious. Article II of § 20 of the Oklahoma Constitution, in relation to criminal charges and the defendant’s rights, provides as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: * * He shall be informed of the nature and cause of the accusation against him and have a copy thereof, * * (Emphasis ours)

Title 22 O. S. A. § 401, subsection 2, provides:

“The indictment or information must contain: * * *
“2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

In Snapp v. State, 2 Okla. Cr. 515, 103 P. 553, this court defined the office of an information as not only a pleading designed to give the court jurisdiction, “but it is also the pleading on the part of the state, informing said defendant of what offense he is charged with, for the purpose of the trial.” Moreover, Title 22 O. S. A. § 404 provides as follows:

“The indictment or information must charge but one offense, but ivhere the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, * *

The foregoing section of the statute does not permit the charging of more than one offense in the same count of an information. In Williams v. State, 16 Okla. Cr. 54, 180 P. 559, 560, this court said:

“The indictment or information must charge the defendant with but one offense. In this state, the defendant may not be placed upon trial for two offenses at the same time.”

See Lawrence v. State, 39 Okla. Cr. 229, 264 P. 214. See, also, Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Hodge v. State, 52 Okla. Cr. 141, 3 P. 2d 252; Thoreson v. State, 69 Okla. Cr. 128, 100 P. 2d 896. In Cole v. State, 38 Okla. Cr. 396, 262 P. 712, 713, in the body of the opinion the court said:

"In this state, both by statute (section 2558, Comp. St. 1921 [22 O. S. 1941 § 404]) and by numerous decisions of this court, it is well settled that a defendant cannot be placed upon trial for two offenses at the same time. Where it appears from the record that a defendant was called upon to defend against two separate offenses over his objections and exceptions, a conviction cannot stand. Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980; Tunnard v. State, 5 Okla. Cr. 529, 115 P. 603; Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027; Kime et al. v. State, 14 Okla. Cr. Ill 167 P. 1159; Williams v. State, 16 Okla. Cr. 54, 180 P. 559.”

Under Title 21 O. S. A. § 23 it might be contended that this conviction could be sustained. Said section reads as follows:

"An act or omission which is made punishable in different ways by different provisions of this Code, or other penal statute, may be punished under either of such provisions, except that in cases specified in Sections 2805 and 2808, the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can it be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other. (R. L. 1910, § 2794.)”

But this section must be construed in connection with the preceding section of the Constitution and the statutes. In order that the last quoted section and the preceding sections may not be in conflict, it has been held that where a situation such as confronts us in the ease at bar where the information is broad enough to charge either of two offenses, the prosecutor may elect under which of the sections the prosecution will be maintained. This is made necessary because there are many acts or transactions variously defined in the statutes, as constituting more than one offense, and where it is most difficult to allege facts covering one offense without also charging another offense, thus exposing the information to the objection of duplicity. It is to cover such situations that section 23 of Title 21, O. S. A. was enacted, and the construction given it by this court as disclosed in the hereinafter cited and quoted cases. In construing the foregoing statute as being thus limited, this court, in Tracy v. State, 24 Okla. Cr. 144, 216 P. 941, wherein the defendant was charged with grand larceny of an automobile of the value in excess of $20, the contention being that the defendant could not be convicted of grand larceny but should have been convicted if at all for larceny of an automobile, said at page 152 of 24 Okla. Cr., at 944, of 216 P.:

“It is contended further that, since it was recited in the information that the property stolen was an automobile, the defendant could not be convicted of grand larceny. Our statutes provide (section 2288, Comp. Stat. 1921 [21 O. S. 1941 § 23]), and this court has held, that where two statutes provide different penalties for the same class or kind of offense the state may elect under which section the prosecution may be maintained. Hays v. State, 22 Okla. Cr. 99, 210 P. [728] 729.”

To the same effect see Rice v. State, 57 Okla. Cr. 283, 48 P. 2d 349; Douglas v. State, 57 Okla. Cr. 154, 47 P. 2d 215; Allcott v. State, 55 Okla. Cr. 128, 25 P. 2d 1112; State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093; Ex parte Scherer, 60 Okla. Cr. 195, 62 P. 2d 660. See, also, Minter v. State, 75 Okla. Cr. 133, 129 P. 2d 210; Barnett v. State, 75 Okla. Cr. 340, 131 P. 2d 496, to the same effect that the county attorney may elect under which statute to maintain a prosecution where the act is punishable in different ways by different provisions of the statute. In Saxon v. State, 19 Okla. Cr. 58, 198 P. 107, 108, this court said:

“It was discretionary with the prosecuting attorney to elect before trial for which offense he would prosecute the accused, where the evidence showed the commission, by the same act or transaction, of more than one offense. This principle is elementary. However, there could be no conviction of an offense other than that charged, or a lower degree thereof, or of an offense necessarily included therein, although the evidence may disclose the fact of defendant’s guilt, by the same acts, of an offense not charged or included within the charge.”

The first question confronting this court is, was the amended information of such character as to meet the requirements of art. II, § 20 of the Constitution, and the provisions of Title 22 O. S. A. § 401, subsection 2; Title 22 O. S. A. § 404 and Title 21 O. S. A. § 23? We think so. It informed the defendant of the nature of the cause or accusation against him. It set forth the acts complained of in ordinary language so as to enable a person of common understanding to know what was intended. As was said in the case of Snapp v. State, supra, it not only gave the court jurisdiction, but it informed the defendant of what offense he was charged for the purpose of the trial.

The second question confronting the court is, does this information fall within the provisions of Title 21 O. S. A. § 23, and the cases construing the same? We think so. In the case at bar the county attorney exercised that discretion accorded him by the law in an election before trial. He elected to stand on a charge of grand larceny, as disclosed in both the descriptive label and the charging part of both the original information and the amended information by charging all the essential elements of grand larceny. His election to stand on the charge of grand larceny is further disclosed in the appearance bond, wherein it is recited that the “principal stands charged by information duly presented in tbe district- court of No-wata County, Oklahoma, with the crime of grand larceny”. At no time before trial and during the trial until the jury was instructed was the defendant apprised of a different intention other than contained in the descriptive label and the charging part of the information. Here let us observe that the purpose of a descriptive label is to evidence the prosecutor’s election, and intention as to the offense he believes cover the unlawful acts. Particularly, should this be true where the charging part of the information may be broad enough to cover either of two offenses defined in separate statutes, as does the case at bar. And, where as herein, there is no inconsistency in the descriptive label and the charging part of the amended information on which the defendant was charged, we believe the prosecutor should be held to have clearly indicated an election, as between the charge of grand larceny and the charge of larceny of domestic animals and he should be bound by such election. We believe that in cases such as the one at bar, where the charging part of the information may define either of two offenses, then resort should be had to the descriptive label to determine the prosecutor’s election as to the charge intended. Where, as in the case at bar, the pleader has clearly made an election between two offenses charged in the same count of an information, the defendant must be tried on the basis of the election. But this defendant was not tried and convicted for grand larceny. He was tried, the jury instructed, a verdict returned, punishment fixed, and judgment and sentence imposed for larceny of domestic animals. In this the court erred. Under the conditions as presented in this case by virtue of the prosecutor’s election of grand larceny and the information alleging all the essential elements thereof, it was definite and certain as to tbe charge intended, was intelligible, and the same was not subject to demurrer for duplicity. The trial court therefore was not in error in overruling the defendant’s demurrer. A defendant cannot be led to believe by the clearly expressed election he is to be tried for one offense and the jury instructed on another, at the whim or caprice of either the prosecutor or the court. Particularly, this should be the rule where the other offense is an entirely different crime, and carrying a greatly increased penalty with an additional charge of a second or subsequent offender involved. Such a situation invades the defendant’s fundamental right to be apprised of the charge he must meet. He should never be subjected to the uncertainties of speculative procedure. He should never be compelled to say at any stage of the proceeding “maybe the charge is this or maybe it is that.” He should be able to look at the four corners of the complaint, information or indictment and be able to understand the nature of the offense with which he stands charged. Where, as in this case, the prosecutor has made a valid, binding election, on an information broad enough to cover either grand larceny or lareeny of domestic animals, and the descriptive label indicated an election to prosecute for the lesser crime of grand larceny, then the state will be held to that election, and not be permitted to change its theory under such conditions after the trial has commenced.

The state relies on the case of Bruning v. State, 63 Okla. Cr. 1, 72 P. 2d 393, which is followed in Ex parte Conway, 84 Okla. Cr. 118, 179 P. 2d 699. This case was not a larceny case. There the pleader described the crime charged in the information as forgery in the first degree and evidently thought that he was charging forgery in the first degree. However, the district court correctly construed the information as charging only the crime of forgery in the second degree and submitted that issue to the jury. No case has been called to our attention where the county attorney would name the offense in the descriptive label as a certain crime and then make allegations in the information which contained all of the essential elements of the crime named in the descriptive label and then the court at the trial change the issue so as to submit a greater crime to the jury solely because the charging part of the information also contained all of the essential averments necessary to constitute a greater crime. The situation presented in the case at bar is closely akin to a ease where one is charged with first degree manslaughter but during the trial suddenly finds that he had been tried and convicted of murder, or one charged with forgery in the second degree and suddenly to awake to find that he had been convicted of forgery in the first degree. Od the basis of' due process could such proceedings be sustained? The answer to the question is obvious. We are not confronted with any such situation in the case at bar. Here the election disclosed in the descriptive label is for grand larceny and the charge confirms the election, by alleging every element of grand larceny, and its force is thus limited to grand larceny though broad enough to charge larceny of domestic animals. Under such conditions the constitutional requirements, the statutes, and the cases construing the same, require us to hold the prosecutor bound by his election, and a conviction on any other charge than as that so laid in the information as clearly expressed in the descriptive label and confirmed in the charging part of the information, is void for want of jurisdiction. The court was without the right either to try the defendant for or impose sentence for a crime not within the clearly indicated limits of the amended information. In Ex parte Muse, 56 Okla. Cr. 232, 37 P. 2d 317, 319, this court said:

“The rule now supported by abundant authorities and clear reasoning is that the court must not only have jurisdiction over the person and subject-matter but authority to render the particular judgment. The want of jurisdiction to render a particular judgment may arise from the constitutional prohibition against the infliction of certain punishment or from punishment for an offense not charged in the indictment or information. * * *
“In Ex parte Harris, 8 Okla. Cr. 397, 128 P. 156, in the third paragraph of the syllabus, this court held:
“ ‘The judgment of the court must in all cases be based upon the verdict of the jury, and the verdict of the jury must be responsive to the issue joined by the indictment or information and the plea of the person on trial thereto, otherwise the court is without jurisdiction to render judgment thereon.’ ”

The situation herein was quite similar to that in the Muse case. There the charge was burglary in the second degree but the conviction was for grand larceny. The court held the conviction was void as not being within the allegations of the information. So it is in the case at bar.

Let us make our position clear. We are not holding that the allegation of value in a larceny of domestic animals charge makes the offense one of grand larceny, but where it is evident that the prosecution was instituted before the committing magistrate as the crime of grand larceny that the charge could not be changed in the district court to the crime of larceny of domestic animals for the reason that the same would constitute a material variance from the allegations of the preliminary complaint. Upon the remanding of this case, if the county attorney is desirous of prosecuting for the more serious offense of larceny of domestic animals, be will baye to commence bis prosecution anew before tbe committing magistrate as tbe defendant bas never had a preliminary examination on that charge.

Moreover, it is apparent that tbe departure from tbe charges laid in tbe information was fundamentally erroneous and highly prejudicial to tbe defendant. This must follow, for tbe reason that in addition to being charged with larceny of domestic animals tbe defendant was charged under tbe Habitual Criminal Act, Title 21, O. S. A. § 51, reading in part as follows:

“Every person who, having been convicted of any offense punishable by imprisonment in tbe penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If tbe offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.”

To change the charge from grand larceny to larceny of domestic animals when combined with the charge of criminal habituality subjects the defendant to the hazards of a greatly increased penalty which under the conditions herein involved was prejudicial to his fundamental rights.

Here tlie information charged grand larceny as evidenced by the prosecutor’s election. The jury found the defendant guilty as charged in the information and then under the instructions of the court proceeded to impose sentence, on the basis of the greater penalty for larceny of domestic animals, and as a second or subsequent violator, to a term of 25 years in the penitentiary. Upon this verdict the court entered judgment and sentence accordingly. This was highly prejudicial to the defendant’s right to be sentenced for grand larceny, a lesser offense and with a lighter penalty even though convicted as a subsequent offender.

The corroboration of the testimony of the accomplice is weak. We do not hold as a matter of law that there is no corroboration of the testimony of the accomplice as is insisted upon by counsel for the defendant, but it is of such a weak character that without the allegation and proof of the prior convictions the jury might not have convicted the defendant.

Under the conditions here presented it is not necessary that we consider any of the other assignments of error. The case is accordingly reversed and remanded for a new trial in a manner not inconsistent with the principles herein announced.

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