text:
    A. O. SWEET v. STATE.
    No. A-7822
    Opinion Filed May 23, 1931.
    Rehearing Denied June 19, 1931.
    (300 Pac. 418.)
    Melrose Minton, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beckham county of the crime of larceny of domestic animals, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of three years.

The evidence of the state was that E. W. Blain was the owner of a ranch and several hundred head, of cattle in Beckham county; that on the night of January 19, 1929, 29 head of cows and 2 calves were stolen from the Blain pasture and driven to' the town of Benonine, and there shipped out on the same night to Kansas City, Mo., where the cattle were later found and identified by Blain as his cattle and later returned to his pasture; that at about noon on the day that the cattle were stolen the defendant and a man named Spillers came to the Blain ranch and inquired for Lee Holmes, who was the foreman of the ranch; that, when they were informed Holmes had gone to Wellington in charge of some cattle1, they inquired when he would be back, and, after waiting 20 or 30 minutes, they left in the direction of Benonine; that at about 12 or 1 o’clock on the 19th day of January, 1929, the defendant appeared at Benonine and requested R. E. Vance, the station agent at such place, to procure a stock car for the shipment of cattle, and that he was accompanied by Spillers, who had been with him at the Blain ranch a short time before; that the agent wired the chief dispatcher, and received information that a car would be obtainable to load out a car of cattle at Benonine that night; that defendant signed the billing of the cattle. This bill of lading was introduced in evidence.

Vance, the agent, testified:

That the billing was signed by the defendant, A. O. Sweet, under the name of the Farmers’ National Bank. That on the 19th day of January, 1929, L. G-. Alexander was the night clerk at the station of the Rock Island Railroad Company at Texola. That the defendant came to him and requested him to call the dispatcher and tell him the cattle were at Benonine ready to' load and ready to go, and that this was some time around midnight of the night the cattle were stolen. That the stolen cattle were shipped to Kansas City in car No. 76351, consigned to Wilson-Eagan Company, commission men, and this car was delivered to the stockyards at Kansas City, and contained the stolen cattle. That on count at the stockyards in Kansas City the car was found to contain 29 bead of cows and 2 bead of calves. That they were red, wbite-faeed Hereford cows, branded “V” slash on the bip and jaw. That this was the Blain brand, and that these cattle were Blain’s cattle.

That one of the defendant’s horses and bis saddle bad been left with a man named Hick ¿Tones, who lived about a mile and a half from the Blain ranch; that on the day of the theft of the cattle at night the defendant’s saddle and horse were taken from Jones’ place during his absence somewhere between 12 o’clock Saturday and Jones’ return that night. That horses were used to drive the cattle to the railroad station for loading.

Defendant did not take the witness stand, but called a number of witnesses to testify to his good character.

Defendant contends that the evidence of the state is insufficient to support the verdict of the jury.

The facts and circumstances set out in this opinion, together with other evidence in the record, were sufficient to support the verdict of the jury.

Defendant next contends that the county attorney was guilty of misconduct in misstating the law to the jury.

The record contains the entire opening and closing argument of the state. The court had instructed the jury :

“ ‘All persons concerned in the commission of crime, whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals and may be prosecuted as such.’
“Now, remember that, gentlemen.
“Now, what are they relying on? What is the defense in this case? Why are they trying to deceive you, gentlemen, in this matter? Here is their case. Here is their defense. Here is what Albert Sweet comes to yon and asks yon to tnm him loose on. The fact that he possibly was not down there between eight and nine o’clock on Saturday night. What seems to be Albert Sweet’s theory relative to whether or not a man can be convicted for stealing cattle? His idea is that unless yon see him take them from out of the pasture — unless he was seen taking them out of the pasture of Ed Blain, then you cannot stick him for stealing cattle and I want to say to you, gentlemen of the jury that that is not the law in this state and it never Avill be the law in this state, because if you were not allowed to take the facts and circumstances surrounding the crime, that point to no other man in the world other than that man there, then I say to you that justice would be hard to find.
“Over there in paragraph seven of the court’s instructions, he tells you, and I want the attorneys for the defendant to challenge me if my interpretation is not right, the court tells you:
“ ‘The defendant in this case has interposed, as one of his defenses, in addition to his plea of not guilty, what is known in law as an alibi; that is, if an offense was committed as alleged in the information, that the defendant, at the time of the alleged commission thereof, was not then and there present at the place where the offense was committed and therefore could not have committed the offense. If you entertain a reasonable doubt as to whether the defendant was then and there present at the time and-place when and where the offense, if any, was committed, then you should give the defendant the benefit of the doubt and find him not guilty.’
“I want to say to you, gentlemen of the jury, that from the time those cattle were taken from the pasture of Ed Blain on the Saturday night of January 19th, until they reached the state of Oklahoma line, going into the state of Texas to be shipped to the markets in Kansas City by A. O. Sweet, I want to- say to you that if at any time from the time those cattie left the pasture of Ed Blain until they reached the Texas line, if Albert Sweet bad anything to do with those cattle, he is guilty of taking and helping take those cattle out of the pasture over there of Ed Blain and is guilty of the crime charged.
“By Mr. Minton: Comes now the defendant and objects to the remarks of the county attorney as to the law in this case for the reason that it is not the law.
“By the Court: Objection overruled.
“By Mr. Minton: Exception.”

Counsel for defendant had evidently been arguing that, unless the defendant was seen taking- the cattle out of the pasture of Blain, he could not be convicted. This was not the law, and counsel for the state appear to have been attempting to answer the argument of the defendant.

To warrant a reversal on account of the argument of the prosecuting attorney, such argument must be not only improper and unwarranted upon some material point, but it must appear that this argument may have injuriously affected the rights of defendant. Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Cox v. State, 50 Okla. Cr. 307, 297 Pac. 320.

Defendant next complains that counsel for the state was guilty of further misconduct in the argument of the case to the jury.

No objection was made to any other part of the argument and no exceptions taken, and no motion made to instruct the jury not to consider such argument.

Where no objections are made to the argument of the county attorney and no- exceptions taken to the same, and no motion made to instruct the jury to disregard any part of the argument, the record presents no question for this court. Williams v. State, 49 Okla. Cr. 240, 293 Pac. 564; Cox v. State, 50 Okla. Cr. 307, 297 Pac. 320.

Tbe evidence being sufficient to support tbe verdict of tbe jury and tbe errors of law complained of not being supported by tbe record, tbe cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    A. W. ANTHONY v. STATE.
    No. A-7888.
    Opinion Filed May 23, 1931.
    Rehearing Denied June 19, 1931.
    (300 Pac. 420.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Noble county of tbe crime of unlawful possession of masb fit for manufacture and distillation of intoxicating liquor, and his punishment fixed by tbe jury at a fine of $50 and confinement in tbe county jail for a period of 30 days.

The evidence of the state was that the officers found three barrels of mash, each of which was two-thirds full of whisky mash fit and ready for distillation, some empty barrels, a funnel, and bucket, a five or eight gallon stone jar, a fireplace built in the bank of the creek walled up with brick and iron bars across it, about a quarter of a mile south of defendant’s house, in a bend of the creek, where there were weeds and brush, and that a path led from defendant’s house to this place where the mash was located.

Defendant, testifying for himself, admitted that the barrels and other stuff were found on his premises, but claimed it was feed he had prepared for his hogs.

Defendant contends first that this evidence is inadmissible for the reason that the search warrant under which the officers operated did not authorize a search of defendant’s premises for intoxicating liquor.

This court has held in a number of cases that no search warrant is necessary to authorize the officers to search under circumstances like those in the case at bar, where the property is concealed in canyons, pastures, and waste places, outside of the curtilage and removed from the residence. Barton v. State, 26 Okla. Cr. 89, 222 Pac. 272; Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224; Keenan v. State, 33 Okla. Cr. 400, 243 Pac. 1001; Penney v. State, 35 Okla. Cr. 151, 249 Pac. 167.

Section 7014, O. O: S. 1921, provides:

“When a violation of any provision of this chapter shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used. * * *”

In the case at bar the defendant is charged with the unlawful possession of mash fit for distillation. Under, the evidence of the officers no- search warrant was required, since the property was located in a place unprotected from search and seizure without a warrant. The officers not only had a right to seize the property under the evidence in this case, but it was their duty to do so. Francis et al. v. State, 26 Okla. Cr. 82, 221 Pac. 785.

Defendant complains of other errors, but they are without substantial merit.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    B. O. SHEPHERD v. STATE.
    No. A-7898.
    Opinion Filed May 29, 1931.
    Rehearing Denied June 19, 1931.
    (300 Pac. 421.)

      Hudson & Hudson and McCollum & McCollum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county, on change of venue from Tulsa county, of manslaughter in the first degree and was sentenced to serve a term of 35 years in the state penitentiary.

In August, 1929, one Robert Hatcher was shot and killed in the apartment of Alice Andrews in Tulsa. She was a stenographer who for a short time had been in the employ of defendant. Hatcher was paying her some attention and they had been engaged to marry. Defendant, a married man, was in the real estate business. A few days before the homicide, accompanied by the Andrews girl, he had rented the apartment for her which she had occupied but a day or sa On the Saturday before the homicide, on Tuesday, defendant and the Andrews girl had lunch together at the apartment, during which Hatcher came and knocked on the door. She went to the door and told Hatcher to leave and to return in about 20 minutes. Defendant became peeved and told the Andrews girl she was discharged, to come to the office Monday and he would pay her off. On Sunday he returned to the apartment, apologized, and told her to come back to work Monday which she did. On Monday, Hatcher called the office by telephone and asked her to have lunch with him, but she declined. Just before noon he came to the office. Defendant and Hatcher became angry, engaged in a quarrel about the girl, and cursed each other. Defendant called the police, but at the request of the Andrews girl, Hatcher left before they came. Defendant then left the office and later returned with a pistol. That afternoon the Andrews girl gave the key to the apartment to Hatcher; later in the afternoon defendant told her he was going to watch the apartment to see that Hatcher did not come there. On Tuesday, at defendant’s suggestion, he and the Andrews girl again decided to have lunch at the apartment. As they got in the car, defendant put a pistol in the right-hand pocket of the car. They made some purchases, and on arriving at the apartment with the bundles the Andrews girl saw the pistol in one of the paper sacks carried by defendant. The place was locked and they were unable to get in. Defendant directed the girl to return to the office, stating he would call her back. Defendant called the janitor, who had a small boy enter and open the apartment. What occurred after defendant entered is shown by his testimony at the trial, by proof of statements made by him immediately after the homicide, and by the physical facts. From these sources it appears that after entering the apartment a single shot was fired from the pistol belonging to defendant, which inflicted a mortal wound on Hatcher, and which rendered him incapable of speech or action, and from the effect of which he died within an hour. Defendant testified in substance that he did not fire the shot, that when he entered the apartment he set down the packages and turned around as he was accosted by Hatcher, who was in the bathroom and was pointing a pistol at him. That Hatcher approached, and when he got near defendant shouted and grabbed his arm and turned the gun which was discharged, and at the same time defendant was knocked loose and made his way out on his hands and knees, but stopped at the entry and looked in and saw Hatcher struggling and crying out to call the ambulance, that he was shot. When others arrived, the body of Hatcher was on the floor with the pistol lying near. There is evidence of contradictory statements made by defendant, some conflicting testimony, and numerous circumstances not detailed.

It is argued that the court erred in overruling the defendant’s application for a directed verdict and to advise the jury to return a verdict of not guilty. Where an accused is on trial on a charge of murder, the court should rarely direct a verdict of acquittal. It is only in those cases where there is absolutely no- evidence of guilt which tends reasonably to sustain the charge that it is the duty of the court to- advise the jury to- return a verdict in favor of the accused. The court was eminently correct in this case in denying such request.

Complaint is made that the court permitted the state to- offer evidence of experiments without laying a predicate to show the experiments were made under conditions similar to those existing at the time of the homicide. The state’s evidence discloses that there were no powder burns on the body nor on the shirt worn by deceased at the time he was shot. The theory of the defense being that the shooting was accidental, this evidence was offered by the state to show the pistol was farther from deceased at the time it was discharged than the defense claimed. Witnesses Mercer and Cockrell, police officers, testified they placed shirting material on the side of a wooden box and fired at it at a distance of 6, 15, 24, and 36 inches, and the results of such shots as showing powder burns. Defendant contends this was inadmissible in failing to show the similarity of the shirting material with that worn by deceased, its condition as to being dry, damp, or wet, or the kind of shell or powder used, citing 10 R. C. L. 1002, 1003; Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129. The Gibbons Case and authorities cited state the extreme rule which has been relaxed to some extent in later cases. In Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, 530, a case in which the absence of powder burns was a material question, it was said:

“As a general rule an experiment introduced for the purpose of proving that the alleged result is obtained by a certain act or operation, considered as existing in the. case, should not be permitted unless the condition and circumstances under which the experiment is made are similar to those shown actually to have existed in the case. However, if the evidence shows that the experiment was made under circumstances similar, or approximately similar, to those which surrounded the original transaction, and such experiment would serve to shed any light upon that transaction, it would be admissible, although such experiment might not have been made under exactly similar conditions as attended the original transaction. The want of exact similarity would not exclude, but would go to its weight with the jury. 1 Michie on Homicide, p. 832, and cases cited. Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine. We are satisfied that the court did not err in admitting evidence of the experiments as tending to shed some light on the firing of the fatal shot, and its weight was for the jury to determine.”

The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing, at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury. 22 C. J. p. 755, §§ 842, 843, 850, and 852, notes; Clark v. State, 38 Tex. Cr. K. 30, 40 S. W. 992; Spires v. State, 50 Fla. 121, 39 So. 181, 7 Ann. Cas. 214.

The experiments here were not made under identical conditions, but were under such reasonably similar conditions as would tend to throw light on the point in controversy and to assist the jury to arrive at the truth. Evidence of experiments are not conclusive; they are circumstances to be considered, weighed, and determined by the jury along with the other evidence in the case. The court did not err in admitting this evidence.

Defendant also insists that the admitting in evidence of a bloody shirt purporting to have been worn by deceased at the time he was shot was not in support of any issue, but was calculated to prejudice and inflame the minds of the jurors against defendant. There is some argument that this garment was not properly identified. At the time this shirt was presented for identification, defendant’s counsel objected that it shed no light upon the issue and offered to stipulate that the bullet made its entrance and exit of the body of deceased as the witnesses testified. The right of the state to prove its case cannot be taken away, or the force of the evidence weakened, by an admission or stipulation of the facts sought to be proven any more than the right of a defendant to present evidence tending to prove an affirmative defense can be taken away by stipulation. The garment was admissible as showing the location of the wound and as showing powder bums or the lack thereof.

We are pressed with the argument that the state was permitted to ask impeaching questions and to impeach its Avitness Alice Andrews without any showing of surprise at her testimony. This witness was used by the state both on the preliminary and at the final trial. After the trial and in support of the supplemental motion for a new trial, she furnished a lengthy recanting affidavit which will be referred to later. Under the entire record, we should say this witness was friendly to defendant. There is no particular controversy as to the general rule that a party cannot impeach his own witness by proof of prior contradictory statements where such party has not been misled or deceived into placing such witness on the stand, but may impeach his witness only when he has been deceived or entrapped into using the witness, believing the witness will testify tO' a favorable state of facts, and who then, contrary to such belief, testified unfavorably. Paris v. U. S., 5 Okla. Cr. 601, 115 Pac. 373; Broshears v. State, 17 Okla. Cr. 192, 187 Pac. 254; Darden v. State, 42 Okla. Cr. 6, 273 Pac. 1027. The particular point involved in the testimony of this witness is that on the day deceased was shot, as she and defendant left the office to go to the apartment, defendant put a pistol in the pocket of the car which she saw in the paper sack when they arrived at the apartment. On cross-examination she testified, on the day before, she took the pistol defendant had brought to the office to her apartment and put it on the table. Counsel for neither the state nor the defendant asked her if she took it back to the office or if defendant did so. Both appear to' have studiously avoided asking that. The questions in the main are without objection, and in part as follows:

“Mr. Wallace: Q. Now on that evening, Monday evening, you say you saw Shepherd put that gun in the safe? A. No, sir, I didn’t see him put it in there, I found it there.
“Q. You found it there? A. Yes, sir.
“Q. Now you testified in the preliminary trial, didn’t you? A. Yes, sir.
“Q. I will ask you if you didn’t gay that Shepherd brought the gun in there, and that you never saw what he did with the gun or where he put the gun? A. I didn’t see where he put it.
“Q. I will ask you if you didn’t further state that you never saw that gun any more until you saw Shepherd put it in the pocket of his car. You testified to' that at the preliminary, didn’t you? A. I don’t know, I guess I did. * * *”

An objection was then made, and a colloquy arose, and the assistant county attorney, Wallace, testified before the court in the absence of the jury in substance that the witness in her former testimony had made contradictory statements. Upon the return of the jury this was not offered by the state, but later defendant’s counsel asked that it be admitted in evidence. The following, appears :

“Mr. R. D. Hudson: I want to know if, for the purpose of the record now, Mr. Wallace, if you and I may agree — you and I have both read this stuff out of the record, if we may agree that the portions of the record that Mr. Wallace has read, the preliminary record for impeaching purposes and the part I have read may be considered as offered in evidence.
“The Court: Yes.
“Mr. R. D. Hudson: Let the record show that counsel for the state and for the defendant both, in open court, stipulate and agree that it may be considered by the court that all questions and answers read either by the county attorney or by counsel for the defense, in laying the predicate for impeaching questions, may be, and the same are hereby considered in evidence, and may be read to the jury as such. That is correct, isn’t it?
“Mr. Wallace: Yes.
“The Court: Very well. * * *”

He cannot now be heard to complain that any of the testimony of Wallace, including the testimony read by either was prejudicial for if error it was invited error. Following the cross-examination of this witness, she was questioned on redirect examination by the state, over objection, at some length as to her previous testimony and statements. In a large measure this is a repetition of what already had been testified to without objection or had been read. We see no material impeachment or attempt to impeach, but an attempt to rebut the inference sought to be made that if she took the pistol to the apartment on Monday defendant could not have had it with him when he went to the apartment on Tuesday at the time Hatcher was shot. Both statements, that the witness took the pistol to the apartment, and that defendant on the next day had it, may be true.

The argument is made that instructions 7, 8, 11, 12, 18, 14, 15, 16, 17, 18, 22, and 28. are erroneous and inapplicable, in that the court instructed on the law of self-defense, when the defendant made no claim of self-defense, but denied he took the life of deceased and sought in no way to mitigate or justify the killing. The plea of self-defense is a plea of justifiable homicide and amounts to a plea in civil law of confession and avoidance. If an accused did not commit an act, he is not required to justify it. It is settled by many decisions from this court that it is error for a trial court to assume in his instructions a disputed material question of fact. The case of Forrester v. State, 45 Okla. Cr. 205, 282 Pac. 682, was reversed because the trial court in that case assumed that defendant admitted the homicide and claimed that he acted in self-defense, when as a matter of fact defendant denied he committed the homicide and did not seek to justify or excuse it. This is but another way of saying that the instructions should be applicable to the issue raised by the pleadings and testimony.

In the record before us defendant testified to a conflict or struggle with deceased, that deceased at the time attempted to shoot defendant with a pistol, which in the struggle defendant turned about the time it was discharged and which caused the death of deceased; the death to this extent being accidental. The court is not required to frame the instructions on the theory of defendant alone but upon the evidence as an entirety. In instruction 7 the court stated the issues as raised by .the plea and the evidence, limiting it to the claim of defendant that the grappling with deceased by defendant was an act of self-defense but that the killing was accidental. This instruction is:

“In this case the defendant, B. O. Shepherd, as his plea and for his defense, says that at the time of the struggle between the deceased and the defendant, the defendant was acting in his own necessary self-defense and that the killing of the deceased was accidental.”

In none of the instructions does the court assume that defendant admitted that he shot deceased or that in fact he shot deceased. Whether or not defendant shot the deceased is left entirely to the jury. The instructions are not erroneous.

The only remaining assignment of error requiring special discussion is that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence. This motion, supported by an affidavit of defendant, is in substance that since the trial he has learned that the witness Alice Andrews, prior to and at the time of his trial, was under duress of certain officers and believed that unless she testified as she did she would be charged with perjury. That if a new trial were granted the witness Alice Andrews would testify to a different state of facts, favorable to defendant. This motion is supported by an affidavit of the witness Alice Andrews at considerable length detailing her relations with Hatcher and recanting, to some extent her testimony, and particularly her testimony that defendant took a pistol to the apartment at the time of the homicide, and stating that immediately preceding the homicide she did not see defendant put a pistol in the pocket of the car nor see a pistol in the sack at the apartment.

A conviction, generally, is not to be overturned by the ex parte affidavit of a witness that he committed perjury or did not testify fully in the trial of the case. A motion for a new trial on the ground of newly discovered evidence predicated upon an affidavit of the witness that he testified falsely or failed to testify fully in the trial of the case, does not entitle the defendant as a matter of right to’ a new trial. When such a showing is made, the trial court should exercise a sound discretion and determine if the recantation is probably true and, if so, is sufficiently material that another trial would probably result in the acquittal of defendant. Unless he can answer both questions in the affirmative, the motion should be overruled. Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253; Martin v. State, 34 Okla. Cr. 274, 246 Pac. 647.

We are of the opinion that the trial court wisely exercised his discretion in overruling the motion for new trial on the ground of newly discovered evidence.

We realize fully the importance of this case to defendant and have given the record careful consideration. Defendant has been represented by very able counsel, who have safeguarded fully all his rights. Nothing has been overlooked. We find nothing in the record which would warrant this court in disturbing the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    R. M. EDWARDS v. STATE.
    No. A-7932.
    Opinion Filed June 19, 1931.
    (1 Pac. [2d] 175.)
    Guy L. Andrews, Jess Pullen and Wilkinson & Hudson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen. (John C. Powell, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for five years.

It appears from the record:

That a certain will executed by Samuel Fried, deceased, dated April 28, 1906, had been admitted to probate in the county court of Murray county, and that thereafter, on the 20th day of June, 1929, there came on for hearing before said court a contest of the probate of said will, and there was offered in lieu thereof a will purporting to have been executed by Samuel Fried on the 18th day of August, 1917. That during the trial of said cause the defendant testified, in substance, that, after he had received several communications concerning a purported later will, he made a trip to Arkansas, and in the home of one Miller, a justice of the peace, he there found concealed in a pigeonhole in an old cupboard the said will dated August 18, 1917. That he believed said will to be the last will and testament of the said Samuel Fried, and that the same had been executed as was purported by such instrument.

That thereafter the state filed an information against the defendant charging him with perjury, and alleged that then and there certain questions became material in said cause, naming them; and further alleged:

“That then and there, being a witness as aforesaid, the said R. M. Edwards did knowingly, willfully, corruptly, feloniously and falsely testify, depose and say, in substance and effect, that he, the said R. M. Edwards, on or about the first day of April, 1929, visited the home of one Miller, a justice of the peace of Board Camp, Arkansas, where he discovered among some old records a will signed by Samuel Fried of date August 18, 1917, and witnessed by M. D. Huddleston and one L. P. Purvis; that he discovered said will in a pigeonhole, partitioned off in an old cabinet in the home of said justice of the peace Miller; that prior to going to the home of said justice of the peace Miller that he, R. M. Edwards, went to the home of a Baptist Church deacon by the name of Parker to inquire of him who had certain old church records and papers kept by one L. P. Purvis, former justice of the peace, and that said Parker directed him to the home of said Miller, and one Dean Keys, then justice of the peace, and that lie proceeded directly from the home of said Parker to the home of justice of the peace Miller; that after he discovered the will of date August 18, 1917, that he took said will away with him, and did not know what he had, and on the way from said Miller’s home met and picked up one Jonas Ellison, the first person to whom he showed said will after finding it at Miller’s and that he, said E. M. Edwards, had no knowledge whether Lewis Purvis wrote the August 18,1917, will, or who wrote it, hut reached the conclusion that Mr. Purvis did sign it as a witness; which said false testimony is more fully shown by the questions then and there asked said E. M. Edwards when so testifying as said witness.”

Thereupon the state set out the questions propounded to defendant and his answers thereto, and followed the same with the further declarations:

“In all of which particulars the testimony, statements and declarations so testified and deposed unto by the said E. M. Edwards were then and there material matter in and to a determination of which was the last, true and genuine will of Samuel Pried in said Probate Case No. 977, in the Matter of the Estate of .Samuel Pried, deceased, then being heard as aforesaid, and which testimony, statements and declarations aforesaid, were then and there false, as specifically pointed out hereinabove, and were then and there by said E. M. Edwards willfully, knowingly, corruptly, falsely and feloniously made, and were by him not believed to be true and known by him to be false, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

In support of such charge the state called Mabel Pulton, who was the county court reporter and deputy court clerk, who identified the court records and the purported will of August 18, 1917, and testified that as such court stenographer she took in shorthand the testimony of the defendant in cause No. 977, on the 20th day of June, 1929, and that as such court reporter she transcribed the testimony of the defendant, who testified at that trial; that she had independent recollection of his testimony; that she could not give the testimony without reference to the notes which were taken at the time the testimony was given; and thereupon the witness was permitted to read from the testimony given by defendant upon which the perjury charge is predicated in this case, which evidence is substantially as set out in the statement of facts in this opinion and as alleged in the information, and thereupon the state introduced the transcript of such testimony in evidence.

Defendant contends first that the court erred in overruling his demurrer to the information, for the reason: (1) That the facts set forth in said information do not constitute a public offense against the laws of the state of Oklahoma; (2) that, if the facts set forth in said information had been accepted by the court as true, and the will about which testimony was offered had been probated, the order probating same would have been of no legal force or effect as to any of the property mentioned in said will, and would have created no rights in favor of any person offering the same for probate, and that the testimony offered and complained of in said information was irrelevant and immaterial, and, if same had been true, would have been of no force or effect finder the laws of the state of Oklahoma.

Under defendant’s first division of this assignment, he argues that the information is fatally defective, for the reason that there is no allegation in said information that in truth and in fact the said R. M. Edwards did not find the will at the place where he testified that he found it.

It is sufficient answer to this argument to say that the information complies with the requirements of sections 1628 and 2570, C. O. S. 1921.

In Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552, this court said:

“An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.”

It was not necessary to set forth facts showing that the purported testimony was material; an averment of the materiality thereof is sufficient. Cutler v. Territory, 8 Okla. 101, 56 Pac. 861; Miller v. State, 9 Okla. Cr. 196, 131 Pac. 181.

While the information is complex and contains considerable repetition and is unduly long, it sets forth all of the material facts necessary to inform the defendant of the charge against him, which he must defend against, and to protect him from future prosecution in case of conviction thereunder.

Defendant under this assignment next contends that he could not be guilty of perjury, for the reason that the purported will itself was void under our statute, as attempting to deprive the wife of her just share of the estate, and that, since the will was invalid as a matter of law, therefore the defendant could not be guilty of perjury.

At the time defendant testified in the county court in the hearing for probate of the alleged will of 1917 of Samuel Fried, the sole question was the factum of the will, or the question of devisavit vel non.

In Nesbit v. Gragg et al., 36 Okla. 703, 129 Pac. 705, that court said:

“In a proceeding to probate a will under tbe provisions of Mansf. Dig. Ark. 1884, § 6521 (Ind. T. Ann. Stat. 1899, § 3593), the only issue triable is tbe factum of tbe will or tbe question of devisavit vel non.
“In such proceeding the court lacks jurisdiction to construe tbe will or determine tbe rights of tbe parties or tbe validity of any devise therein.”

In Brock v. Kiefer, 59 Okla. 5, 157 Pac. 88, 89, that court said:

“In a proceeding to> probate a will, the court cannot construe or interpret tbe will or distinguish between valid and void disposition. If tbe will be legally executed and proved, and not successfully attacked for want of testamentary capacity, undue influence, fraud, or duress, it must be admitted to probate.”

See, also, Letts v. Letts, 73 Okla. 313, 176 Pac. 234; Courtney et al. v. Daniel, 124 Okla. 46, 253 Pac. 990.

In Cox v. Cox, 101 Mo. 172, 13 S. W. 1055, 1056, that court said:

“It is not part of tbe proceeding on probate to construe or interpret tbe will or any of its provisions, or to distinguish between valid and void, rational and impossible, dispositions. If tbe will be properly executed and proved, it must be admitted to probate, although it contain not a single provision capable of execution, or valid under tbe law.”

Even if tbe will bad been void under tbe laws of Oklahoma, as contended for by defendant, he would be guilty of perjury for giving false testimony in regard to tbe same.

Defendant next contends that tbe court erred in permitting the witness, Mabel Fulton, to read from tbe transcript of the evidence of defendant given at the trial of the probate of the August 18, 1917, will of Samuel Fried, in the county court of Murray county, Okla., over the objection of the plaintiff in error.

Mabel Fulton was the official court reporter in a court of record, and in the case at bar her name was indorsed on the information as a witness, and she was duly sworn to testify truly; she testified that the defendant was sworn and testified, and did further testify by reading from defendant’s testimony as she took it down at the probate hearing, and that she had made a true and correct transcript of such testimony. Her notes were introduced in evidence and the defendant given an opportunity to examine them.

In the case of Harmon v. Territory of Okla., 15 Okla. 147, 79 Pac. 765, that court said:

“Where the stenographer’s shorthand notes of testimony have been by him transcribed in longhand, and at the time of so doing he makes duplicate carbon copies of the same, such duplicate carbon copies are not copies in the sense in which the word ‘copy’ is ordinarily used; and the use of such a carbon copy by a stenographer testifying, from which to refresh his memory, is not error.”

In Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621, this court said:

“The law does not designate who at an examining trial may take ‘in shorthand’ the evidence of a witness, and any stenographer may do so, and a transcript of such evidence, without being signed by the witness, upon a proper predicate being laid therefor, may be legally admitted in evidence.”

In Cutler v. Territory of Oklahoma, 8 Okla. 101, 56 Pac. 861, that court said:

“The rule of evidence requiring that the best evidence shall be produced, to the exclusion of secondary and hearsay, is not violated by permitting the official court stenographer to read from his notes the testimony of a witness in a former trial, taken and recorded by him at the time, and sworn to by him to be correct, even though he testifies that he has no independent recollection of such testimony, and cannot refresh his memory from such notes.”

It was not error, therefore, for the trial court to permit the stenographer to testify from her notes and to1 permit the state to introduce the duly authenticated transcript of the same.

Defendant next complains of the instructions of the court, but, when considered together, they fairly state the law as applicable to the facts in the case, and are as favorable to the defendant as the evidence and the law require.

Defendant complains of other errors, but we dO' not deem them of sufficient importance to require a discussion in this opinion.

The evidence is sufficient to establish that defendant either forged, or procured to be forged, the will in question; that his testimony as to where and how he found it was false, and that he knew his evidence to be false at the time he gave it; that he was not only a party to the making of the false will, but that he sought to establish it by false and perjured testimony.

The guilt of defendant being established by the overwhelming evidence in the case, and the errors of law complained of being without substantial merit, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAYENPOBT, P. J.

text:
    A. A. ANDRES v. STATE.
    No. A-7929.
    Opinion Filed June 19, 1931.
    (1 Pac. [2d] 178.)
    Freeling & Box, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAYENPOBT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the larceny of one heifer, and was sentenced to serve two years in the state penitentiary. Motion for new trial Was filed, considered, overruled, exceptions saved, and defendant appeals.

The testimony on behalf of the state is in substance that Grady Springs was the owner of one heifer yearling branded LS on the left side, and marked with a crop and hole in the left ear. This heifer ran on the range with other cattle belonging to Springs, in the vicinity of Al-boin. About the 20th of August, 1929, this heifer was missed by the owner; on August 14,1929, the defendant in this case drove to Wilburton, in Latimer county, with the carcass of a cow brute which weighed approximately 245 pounds and sold the same to a butcher at 5 cents a pound; the carcass showed to be somewhat dirty, and the butcher testified the animal had not been properly butchered; in the car which the defendant drove to Wilburton was a hatchet, and two knives with blood on them, a rifle, and also a lantern. When questioned the defendant made contradictory statements about the possession of the meat he brought to Wilburton. On August 17, 1929, the hide of a slaughtered animal was discovered in a pasture belonging to a man by the name of Hawthorn, six or seven miles east of the town of Wilburton, on Highway No. 3.

The testimony further tends to show that in going from Alboin to Wilburton the most direct route was to drive along highway No. 3; it was also shown that the county attorney saw the defendant early in the morning on August 14, 1929, driving a Ford touring car with the top off, and with something in the back end of the car covered with canvas.

It was further shown that whoever butchered the animal failed to cut off one of the front feet; that the hide found on the Hawthorn place seemed to fit the slaughtered animal, and appeared to be the same color of hair; and the hide had a hole cut in it about the place where the Springs’ heifer was branded. On the 20th day of August, 1929, the head of a cow was discovered in a lake near the place on the range where the Springs cattle ranged.

The defendant did not take the stand, but called several witnesses to testify, some as to the examination of the hide found, some as to the brand of the prosecuting witness on some of his cattle, and as to the range of the cattle of the prosecuting witness.

Six errors have been assigned by the defendant as grounds for reversal of this case. The first proposition argued by the defendant is that the evidence is wholly insufficient to sustain the verdict of the jury and is contrary to law. The defendant insists that the verdict is based on circumstantial evidence alone, and that the facts proven are not consistent with each other and are not consistent with the guilt of the defendant, and are wholly and completely consistent with his innocence, and did not in any sense include to a moral certainty every other reasonable hypothesis except the guilt of the defendant. The defendant then sets out that part of the testimony which he thinks is insufficient to sustain the verdict, citing Wertzberger v. State, 25 Okla. Cr. 1, 218 Pac. 721. The authority cited by the defendant is good law, but the facts and circumstances in this case are not in point. The weight of the testimony and credibility of the witnesses is a question for the jury.

This court has repeatedly held that where there is a basis in the evidence upon which the jury could reasonably conclude that the defendant was guilty as charged, it would hold the evidence sufficient on appeal to sustain the verdict and judgment. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115.

. It is the universal holding of this court that before it will reverse a conviction on the ground that the verdict is contrary to the evidence it must find that there is no testimony in the record from which the jury could rationally conclude that the defendant was guilty. Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173.

The defendant urges that the instructions of the court are incomplete for the reason that the jury was not instructed as to what constituted reasonable doubt. In Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656, in the second paragraph of the syllabus this court said:

“It is not error for a trial court to fail or refuse to define the term ‘reasonable doubt,’ whether requested to do so or not.”

This court, in many cases, has further held that the term reasonable doubt requires no definition. Soper v. State, 22 Okla. Cr. 35, 208 Pac. 1044; Pitman et al. v. State, 33 Okla. Cr. 165, 242 Pac. 288; Tolbert et al. v. State, 34 Okla. Cr. 110, 245 Pac. 659.

The last proposition urged by the defendant is that the trial court erred in admitting certain alleged incompetent evidence. Rule 7 of this court provides:

“When the error relates to the admission or the rejection of evidence the specification shall quote the full substance admitted or rejected, stating specifically the objection thereto.”

The defendant does not set forth what evidence was admitted that he contends was incompetent, nor does he state wherein the admission of the evidence complained of prejudiced his rights.

The evidence is sufficient to sustain the judgment;' no fundamental or prejudicial errors appear in the record sufficient to' warrant a reversal. The defendant was accorded a fair and impartial trial. The instructions of the court, when considered together, correctly stated the law applicable to the facts in the case.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    LEE HAGGARD v. STATE.
    No. A-7870.
    Opinion Filed June 19, 1931.
    (1 Pac. [2d] 180.)
    E. B. Hunt and G. W. Goad, for plaintiff in error.

      J. Berry King, Atty. Gen., and Edward. Crossland, Asst. Atty. Gen, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of manslaughter in the first degree, and was sentenced to serve a term of 18 years in the state penitentiary.

The state’s testimony discloses a state of facts about as follows: Defendant was a neighbor of T. J. Bolen, the deceased. There had been some disagreement between them about a line fence. Prior to the homicide, deceased had bought a small crop of com on land adjoining defendant, but which belonged to a third person and which land defendant had leased for the following season. A few days after the purchase, deceased, on foot, and his son-in-law, Collingsworth, on horseback, were passing the patch of corn, and, seeing the tracks of hogs in it, they went in to investigate. Defendant was near the edge of the field armed with a pistol and a Winchester rifle. He accosted Collingsworth and struck at him with the rifle, the horse became unmanageable, broke the saddle girth, and Collingsworth fell to the ground. About that time, Bolen appeared, and defendant shot and killed him with the rifle, then snapped the rifle at Collingsworth, but it did not fire, and he drew a pistol and seriously wounded him. Neither Collingsworth nor deceased was armed. Defendant testified that the killing was in his necessary self-defense; that at the time he fired the fatal shot deceased had a pistol, was trying to shoot him, and at the time he shot Collingsworth he was attempting to draw a pistol. His testimony corroborates in several particulars the testimony of the state. The jury by its verdict has found the issues of fact against defendant.

The first contention is that the court should have sustained defendant’s motion to quash the information. This motion alleges that a transcript of the testimony taken at the preliminary had been reduced to writing and filed with the court clerk. The contention is that, where a preliminary is held and testimony taken, the testimony must be transcribed and filed in order to give the court jurisdiction. The point is wholly untenable. While the statute, section 2491, Comp. Stat. 1921, subdivision 1, directs that the evidence taken be transcribed and filed, the transcribing and filing is not jurisdictional. Harris v. State, 18 Okla. Cr. 470, 196 Pac. 354. Argument is further made that the sheriff who' verified the preliminary complaint had no positive knowledge of the facts stated in the complaint. A complaint positively verified and otherwise sufficient invokes the judicial functions of the magistrate, and the fact that the person verifying it did not have positive knowledge of the acts alleged is no reason for setting aside an information based on such preliminary complaint. Boswell v. State, 19 Okla. Cr. 443, 200 Pac. 256. Some claim is also made that the preliminary complaint is not indorsed by the county attorney as required by subdivision 3 of section 2491, Comp. Stat. 1921. Even if we should hold such a failure to be ground for quashing an information, the record does not disclose that the preliminary complaint was not indorsed, but, to the contrary, discloses that it was properly indorsed by the county attorney.

It is urged that defendant was not arraigned on the preliminary complaint and did not plead thereto. The record does not disclose whether or not defendant was arraigned. Whether he "was or not is immaterial. Our statute, section 2490, Comp. Stat. 1921, makes it the duty of the magistrate to read the complaint to a defendant, but does not require an arraignment. He had a preliminary, evidence was taken, a finding of probable cause made, and the order of the magistrate and the commitment was transmitted to' the district court. Defendant could not have been injured by a failure to plead to the preliminary complaint.

It is further argued that the court erred in permitting testimony as to the extent of the injury of Collings-worth. In this there was no error. The fact of the shooting of Collingsworth tended to shed light upon the killing of Bolen, and was competent.

Some other matters are presented which have not been overlooked. None of them are of sufficient importance to call for discussion. Upon an examination of the entire record, we are satisfied defendant had a fair trial and that the evidence amply sustains the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    LEE HARRINGTON v. STATE.
    No. A-7842.
    Opinion Filed June 19, 1931.
    (1 Pac. [2d] 181.)

      I. L. Cook, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The information charges that defendant sold a pint of whisky to one Province, who was the only witness for the state testifying to any material fact. The defendant and his wife contradicted his testimony. The state then introduced the testimony of two witnesses that the residence of defendant, where the sale was charged to have .been made, bore the reputation of being a place where intoxicating liquor was sold. Province was not a very satisfactory witness, and it is likely that this testimony of bad reputation may have turned the scales against defendant. The question of knowledge, design, or intent is no element of the charge and the evidence of reputation is not admissible. Where such evidence may have affected the verdict, its admission requires a reversal. Moore v. State, 34 Okla. Cr. 411, 246 Pac. 1112.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, P. J.

text:
    J. J. CALDWELL v. STATE.
    No. A-7867.
    Opinion Filed June 19, 1931.
    (1 Pac. [2d] 415.)

      J. Hugh Nolen and W. A. Ratterree, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of possessing a still, and was sentenced to pay a fine of $250 and to be imprisoned in the county jail for 90 days; and has appealed.

Murray Barton, called as a witness on behalf of the state, stated:

“I am undersheriff of Okfuskee county; I knew J. J. Caldwell, the defendant; I had occasion to visit the defendant on or about the 28th day of December, 1929; the defendant objected to the introduction of any testimony in the case, for the reason that the evidence obtained was wholly unwarranted; that no proper search warrant was issued; no proper affidavit for the search warrant was made, and no proper search warrant was issued covering the premises of J. J. Caldwell.”

The court excused the jury, and the following witness was called in support of the objection of the defendant in the introduction of the testimony of the state. Murray Barton stated:

“I know Roy Parham; he is a justice of the peace; was on the 28th day of December, 1929; on the 28th day of December, 1929, I called the county attorney and got a search warrant; I gave hirn the information I had and got a search warrant; I did not give any information to the justice of the peace; Eoy Parham did not swear to the affidavit; I did not see Eoy Parham; I know that Eoy Parham has 'been away on his wedding trip. I did not know when he came back.”

On cross-examination, in response to the following questions, the witness gave the following answers:

“Q. Did you sign it before Eoy Parham? A. I don’t know whether I signed it in the county attorney’s office or in our office. I called him about dark. Q. You know you did not sign it before Eoy? A. Yes, sir; I know I did not sign it before Eoy. Q. You know that Eoy never swore you to the affidavit? A. No, sir.”

Eoy Parham stated:

“I was justice of the peace on the 28th day of December, 1929; I left on the morning of the 22d of December, 1929, on a wedding trip and returned on the 3rd day of January, 1930; on the 28th day of December, 1929, I was in Jackson, Miss.; M. M. Barton did not appear before me in Jackson, Miss., to obtain a search warrant to search the premises of J. J. Caldwell. The signature to state exhibit ‘A’ is my signature; I don’t remember when I signed that paper; Mr. Jones prepared most of the search warrants and would come in and I would swear him to the part of it was there and he would prepare the blank places like he wanted them; I did not sign the exhibit on the 28th day of December, 1929, the date it is shown to have been signed; I imagine it was prepared in blank at the time I signed it; if I signed that exhibit any time during December I signed it prior to the 22d day of December, 1929.”

The objection of the defendant to the introduction of the testimony should have been sustained. It is clearly shown that Murray Barton was not sworn to the affidavit upon which the search warrant was based before Eoy Parham; that the signature of the justice of the peace was signed to a blank and the blank filled in afterwards; for that reason the affidavit was insufficient to warrant tbe issuing of the search warrant to search the home of the defendant. No officer has authority to have an affidavit signed in blank, and fill them out to fit what they consider the facts are at the time the search is made. In Spencer et al. v. State, 47 Okla. Cr. 262, 287 Pac. 1044, the practice of some officers carrying around with them a John Doe search warrant issued in blank was strongly condemned. There being no competent testimony to sustain the conviction, the cause is reversed and remanded.

EDWARDS and CHAPPELL, JJ., concur.


text:
    EDD MARPLE v. STATE.
    No. A-7876.
    Opinion Filed June 27, 1931.
    (1 Pac. [2d] 836.)
    Robinson & Oden, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jackson county of transporting whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at tbe time charged defendant was driving his car on the highway near the town of Headrick. A constable and town marshal of Headrick, in an automobile, passed the defendant, turned their car quartering across the road, and blocked their passage. Defendant stopped his car, and these officers advised him they wanted to search it. He consented, and they searched the back part of the car but found nothing, but, on attempting to look under some garment rolled up in front of the front seat defendant broke a jar containing some whisky which was wrapped up in the garment.

The contention is made that the search was illegal. The constable testified as follows:

“ * * -Q. Did you have the defendant under arrest at the time you asked him to make the search? A. No, sir. * * * Q. So you decided he had some whisky? A. No. Q. You didn’t think he had any? A. No, I figured he was going after some. * * * Q. And you parked your car sideways in the road? A. Yes, sir. * * *”

The town marshal testified:

" * Q. You didn’t know whether Edd had any liquor? A. No, sir. Q. Did you suspicion it? A. Yes, sir. * * * Q. You kinda quartered your car across the road? A. Just a little bit. * * * Q. You stopped? A. Yes, sir. Q. And he stopped too? A. He kinda left the road and I run around in front of him. * * * Q. Then, you saw Mr. Booker go up to Edd, didn’t you? A. Saw him go up to the car. Q. And he proceeded to search his car? A. Yes, sir; I seen him looking in. Q. You didn’t hear any words? A. Not until Mr. Booker called for me. Q. What did he say? A. He said 'Come here.’ Q. And you got your gun and run? A./ Yes. * * *”

The defendant, after stating that he knew the constable and marshal and knew they were officers, testified:

“ * * * Q. And did yon figure it was obligatory to stop your car? A. Well, yes. * * * Q. Did you ever tell him be could search your car? A. No, sir; I never did. * * *”

The stopping and searching of defendant’s car on a mere suspicion was illegal, and evidence obtained by such search inadmissible. Matthews v. State, 45 Okla. Cr. 110, 282 Pac. 180. A peace officer may arrest without a warrant for a misdemeanor committed or attempted in his presence. Section 2471, Comp. Stat. 1921. If the officer does not know of the commission of the offense, it is not committed in his presence within the meaning of the law.

The search cannot be justified on the ground that defendant gave his consent. Consent should be without duress, and it can hardly be said to be voluntary when known officers block the highway and with gun in hand ask permission to search a car. If defendant had committed a misdemeanor known to the officers or there was reasonable ground for apprehending the commission of a felony, a different situation would be presented.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    WILL (W. B.) NORRID v. STATE.
    No. A-7859.
    Opinion Filed May 16, 1931.
    Withdrawn, Corrected, Refiled, and Rehearing Denied June 27, 1931.
    (1 Pac. [2d] 417.)

      Arthur Fitzpatrick, for plaintiff in error, on appeal.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequo-yah county of the crime of larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for two years.

The evidence of the state was that one Charley Kumpke was the owner of one roan cow and two red heifers; that, on the evening the cattle were taken, defendant was at Kumpke’s store inquiring about cattle, and the wife of Kumpke pointed out these three cattle to defendant and said that they belonged to her husband; that the cattle went off up the road toward the mountain and defendant remained at Kumpke’s place of business until after dark; that Kumpke’s place of business was at Brent; that defendant employed a truck driver on that evening to take some cattle to Ft. Smith; that officers learning about this transaction went on the road toward Ft. Smith and waited; that a truck came by in the night loaded with cattle, and the officers followed it on into Ft. Smith and there found the defendant unloading the cattle; that when the officers asked him what he was doing, unloading cattle at that time of night, he said it was hot, and when asked who the cattle belonged to, said that one of the yearlings was bis and the other two' belonged to bis father. When defendant was confronted by the prosecuting witness, be said if they were Kumpke’s cattle be did not know it; that be bought them from a fellow named J. R. Benge; that be bad never seen him before and did not know him, and that the reason be bad taken the cattle to Ft. Smith was because be bad given a hot check for them and wanted to get the money back in the bank before the check got around.

Defendant, testifying for himself, told the story of purchasing the cattle from Benge, whom be did not know and bad not seen since.

The jury saw the witnesses and beard them testify and were in a position to judge of the truthfulness of defendant’s explanation of bow be came into possession of the cattle, and evidently did not believe bis story.

The evidence supports the verdict of the jury, and the cause must be affirmed unless the errors complained of are sufficient to require a reversal.

Defendant complains first of the admission of incompetent testimony.

The principal part of the evidence complained of was not objected to until after the witness had answered the question, and then there was no request of the court that the answer be stricken. This court has held that one cannot speculate as to what the answer will be and wait until after the witness answers and, when the answer is unfavorable, object to the same; that such objection would not be considered unless there was a motion made to strike the evidence for some reason which would show the answer to have been prejudicial to the defendant. Keeler v. State, 24 Okla. Cr. 206, 217 Pac. 228.

Defendant next contends that the court erred in permitting tbe county attorney in the cross-examination of witnesses to inquire into their occupation, their manner of living, and their companions.

In Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831, this court said:

“On cross-examination for the purpose of affecting his credibility, the occupation, manner of living and companions of a witness may be inquired into.
“The fact that a witness is a professional bootlegger, or has 'been convicted of bootlegging, may be proven for the purpose of impeaching his testimony.”

In the case at bar, the state in cross-examining the witnesses sought to get before the jury the occupation, manner of living, and companions of the witnesses for the purpose of affecting their credibility. This the state had a right to do.

Defendant next complains that the court erred in limiting the character witnesses to three.

The character of the defendant was not put in issue by the state. The court permitted defendant to introduce three character witnesses. The record does not disclose that the defendant requested permission to use any other witnesses. This evidence of good character of defendant was not controverted by the state. It is within the sound discretion of the trial court to limit the number of character witnesses. The trial court placed too close a restriction upon the defendant in the matter of these character witnesses, but the same did not amount to such an abuse of discretion as to require a reversal of the case.

Defendant next contends that the state failed to prove venue.

The evidence of the state is that the cattle were owned by Kumpke, who lived at Brent, and that the cattle were loaded not far from this town. This court takes judicial notice of the names and boundaries of counties and the location of towns therein, and takes judicial notice of the fact that Brent is in Sequoyah county.

In Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232, this court said:

“The better and safer plan is for the state to prove venue by direct and positive evidence, yet the essential test is whether or not the venue has in some way been proved, and if it has been proved by circumstances or indirect statements which fix the venue the requirements of the law have been met.”

It would make it much easier for this court to dispose of cases if county attorneys would prove venue by positive and direct evidence.

Arthur Fitzpatrick, the attorney who represented the defendant in this court, did not assist in the trial of the case and is not responsible for the condition of the record as it reached this court. There are errors in the record— proper exceptions were saved to some of them, while in others no objection was made, but none of these errors are sufficient to require a reversal of the case.

The errors of law complained of by defendant being without substantial merit, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    P. C. MOORE v. STATE.
    No. A-7977.
    Opinion Filed May 16, 1931.
    Rehearing Denied June 27, 1931.
    (300 Pac. 426.)
    Wm. T. Powell, for plaintiff in error.
    J. Berry King, Atty. Gen., and. Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted ■ in the district court of Comanche county of assault with a dangerous weapon ivith intent to do bodily harm, and his punishment fixed at four years in the penitentiary.

The record discloses that at the time charged defendant and his wife and one Wise went to a pool hall in the city of Lawton. Defendant asked for Reece Porter; Porter came out and Wise immediately engaged him in a fight. Defendant and his wife demanded that others stand back and not interfere. Garner, a policeman, came upon the scene and arrested the combatants. The wife of defendant attempted to interfere and the officer put her under arrest and she got in her car to- leave; Garner turned the switch on the car to keep her from escaping, and just at this time defendant came up, put his arm around the neck of Garner, and stabbed him in the neck with a. knife.

The first contention is that the defendant was twice put in jeopardy and that he should be discharged. In October, 1929, the case was called for trial. The evidence was introduced, and the following occurred:

“* * * By Mr. Powell: The court will sustain whatever portion of the request he may desire. By the Court: You ask now that the jury be discharged and the case be dismissed on the ground that the information is not sufficient to charge a crime? By Mr. Powell: Yes, sir. By the Court: I will dismiss it and let the jury be discharged on that ground alone. * * *”

The court thus sustained the application to discharge the jury and directed that the information be amended, which was done by changing the allegation from a “dangerous” to a “deadly” weapon. The case was continued and tried in March, following. A plea of former jeopardy was interposed and, among other things, the following appears:

* * By Mr. Powell: We would like for the record to show that this inquiry is made by counsel for P. C. Moore. Does the court hold that in overruling the plea of former jeopardy that the court did or did not have jurisdiction to hear and try the case, try this defendant in case No. 1862, tried in this court on the 23rd day of October, 1929? * * * By the Court: I am holding here that you asked for the jury to' be discharged and it was upon that ground alone that I discharged it and discharged it upon your own request, and for the reason you cannot claim former jeopardy. * * *”

It is generally held that where a defendant is on trial in a court of competent jurisdiction upon a sufficient indictment or information and the jury has been impaneled and sworn and it is unnecessarily discharged without his consent, such discharge operates as an acquittal. Loyd v. State, 6 Okla. Cr. 76, 116 Pac. 959; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; State v. Brooks, 38 Okla. Cr. 302, 260 Pac. 785. Where the jury is discharged at the request of or with the consent of defendant, he is estopped upon a subsequent trial from claiming he has been in jeopardy.

It is also argued that the information is insufficient in failing to allege that the knife, in the manner in which it was used, was likely to produce death. The argument upon this point loses much of its force for the reason that defendant was not convicted of assault with intent to- kill but only of an assault with intent to do bodily harm.

There is some contention that the evidence is not sufficient to sustain the judgment. The argument upon this point is rather to the weight of the evidence than to its sufficiency. There is ample evidence if believed by the jury, which they evidently did, to- sustain the judgment. Some other matters are presented in the briefs but they are not of sufficient importance to call for special discussion.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    EARL R. KELLEY v. STATE.
    No. A-7553.
    Opinion Filed June 6, 1931.
    Rehearing Denied June 27, 1931.
    (300 Pac. 436.)

      Breckinridge & Bostick and John L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., .Smith C. Matson, Asst. Atty. Gen., and Hagan & Gavin, for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was informed against jointly with Chauncey M. Davis and F. E. Clark charged with forgery, was tried separately, convicted and sentenced to be imprisoned in the state penitentiary for a period of seven years. Motion for new trial was filed, considered, overruled, exceptions saved, and the case appealed to this court.

To sustain the allegations in the information, the state called the following witnesses: J. P. Flanagan, on behalf of the state, testified, in substance, that:

“Some time in August, 1926, I began negotiations with F. E. Clark for the purchase of the royalty interest of Leonard D. Ingram in the southwest quarter of section 2, twp. 19 north, range 17 east, Creek county, Okla., I first met Mr. Clark at the office of Mr. Johnson, in the Exchange National Bank Building. It was about the 27th or 28th of August, 1926. Mr. Johnson explained that he had been over the property and told me something about it. Mr. Clark was present at the time, and he said he had arranged to buy this property. I expressed some surprise at that, and said I did not know you could buy it. Clark replied there was a mortgage of $15,000 on it at the First National Bank at Muskogee, which he had already arranged to take over; he wanted $42,000 for the interest he was talking of purchasing; I figured for a while, and offered him $86,000. That was on the same day the original conversation was had. He told me Ingram would be over in a day or two to close the transaction.
“The morning of September 2d Mr. Clark and Mr. Johnson and a negro came to my house in a car; it was about a quarter of 8; Mr. Clark said,. ‘This was Leonard Ingram.’ The negro that Clark told me was Leonard Ingram I learned later was Chauncey Davis. Clark said he had a deed from Ingram to himself, and that he was going to take it to Sapulpa and put it on record. I told him that Mr. Kelley has been trying to buy this property off and on for a long time, and asked him to have Kelley identify the negro Ingram, and Clark replied, ‘I have already had Kelley identify him’; they then left. When I went down town, I went to Mr. Johnson's office, Johnson prepared the deed from Clark to me; prepared the proper transfer orders covering the transfer of the oil and pipe line. In a few minutes Clark came down and said Ingram was down in the Exchange National Bank; Mr. Johnson and I accompanied Clark down to the bank. I wrote my check to Clark for |36,000 in payment for a one-half interest in the Leonard Ingram royalty, and handed it to him; he indorsed the check. Mr. Smith, who was in the cage of the bank, handed him two packages of bills, one sum was $12,500, the other $15,000. Clark stated that Ingram was insisting upon having cash. There was some-discussion of the $15,000 mortgage to the First National Bank of Muskogee and some other deed that had not been put of record. When I paid the money, I expected to get a release of the mortgage to the bank at Muskogee.
“I suggested to Mr. Clark in the bank that he had better accompany the negro to Muskogee for protection. Clark then left with the negro, whom I thought at the time was Leonard Ingram, but who turned out to be Chauncey Davis. There was a suit filed. I was served with papers on the Leonard Ingram half interest to quiet title; after the suit was filed I had a general conversation with Mr. Kelley; Mr. Clark was present. In this meeting Mr. Kelley explained how he had identified the negro as being Ingram. He said Mr. Clark drove up to where he was sleeping in Tulsa, blew his horn, and said, ‘I have Leonard D. Ingram here.’ Kelley said, ‘I located him/ and I said, ‘Hello Leonard, how are you?’ I also asked a question, if he had seen some other chap; that was the statement made by Kelley.”

The testimony of F. A. Boyles, taken in the preliminary trial was read to the jury. Boyles stated:

“On the morning of September 2, 1926, I resided on section 33, township 20, range 12, Osage county. In the early morning, possibly 2 or 3 o’clock, I don’t know the exact time, Mr. Kelley and a negro man he introduced as Ingram and Mr. Clark came to my house in an automobile; tbe bom sounded, and then I beard Mr. Kelley’s voice. When be called my name I got up and went out to' see what be wanted; I went out in my night clothes, and Mr. Kelley was by the fence. I bad known bim for several months. Mr. Kelley wanted to know if I would let bim have tbe key to tbe office, be wanted to get tbe Indian Roll Book. At that time I was off icing with James A. Watson, 518 Commercial building; I am still off icing, with bim. I told Kelley I would not let anybody have tbe key. Mr. Kelley stated be wanted to get tbe roll number, and asked me if I would go down to tbe office with bim to get it. I went with bim to the office. Tbe man who drove tbe car when we went to the office is tbe man Mr. Kelley introduced to me as Mr. Clark. We stopped tbe car at Fourth and Boulder, and Mr. Kelley and I went to the office; Mr. Clark and tbe negro stayed in tbe car; I think tbe car moved on. When we got to the office, Mr. Kelley looked into tbe roll book, made some notes on a piece of paper, and put it in bis pocket, and we left tbe office and went to Fourth street, close to Boston, and got into Mr. Kelley’s car and he took me home. While we were there, a man came from towards tbe Clinton building to Mr. Kelley, and a few words were spoken. We got into tbe car and went on.
“On tbe way down from my house to tbe office Mr. Kelley said that the negro was going to leave, and be said be wanted to get bis signature before be left. He said be just come over from below Bristow; Mr. Clark, Mr. Kelley, tbe negro, and myself were tbe only ones in tbe car. After this occurrence, Mr. Kelley said it was a pretty good deal if be made it, and it was kind of me to get up at that time in tbe morning and go down there. ‘If I get this over I will pay you well for your kindness.’ I was not paid anything.”

Cbauncey Depew Twine testified, in substance, that bis residence was Muskogee; that be was a graduate of Howard University; be practiced law in Muskogee. “I have known Earl R. Kelley since June, 1924; have seen bim frequently since that time; I saw bim about 9 o’clock on the night of September 1, 1926, in the city of Muskogee; he came to the door of the Wilson Jones Drug Store and called Chauncey Davis. This drug store is located at 218 North Second street, two doors south of my office.”

Chauncey M. Davis testified that he was a resident of Kansas City. Prior to that time he lived in Muskogee. He had known the defendant, Earl Kelley, since June, 1924; met him in Washington, D. C., while attending Howard University; the defendant was then trying to locate Leonard D. Ingram to buy his royalty interest—

“The next time I saw him was about August, 1926, in Muskogee; I saw him later in Muskogee several times. On the first day of September, 1926, about 6 o’clock in the evening, I had a conversation with him, and he said he wanted to go to Tulsa, that he was short of money, and wanted me to loan him $8. I did not have the money, and sent him to the Klar Pawn Shop, Third and Okmul-gee; told him to tell Klar I sent him, they were pawnbrokers. He also told mé some lawyer in Tulsa wanted to see him. I advised him I was leaving that night. The defendant then said he would let me know later. I saw him again about 9 o'clock at night down near the billiard parlor on Second and Court. He advised me he had called the parties and they wanted me to come to Tulsa; said he did not know who the parties were; he had talked through some one else.
“The defendant insisted that I come that night to Tulsa; I finally decided to go; he advised me he would be ready to start about 10:30; we drove to Tulsa, reaching there about 1:30 the morning of September 2d; Clark came out, and Mr. Kelley introduced me to Clark, and we talked a few minutes. Clark then told Mr. Kelley to get some attorney and go up to the office, I do not recall the name of the attorney. Clark told me to get out of the Kelley car and get into- his car. Mr. Kelley then left. We drove to Fourth and Boulder in the city of Tulsa. Clark went around to what was the side of the Clinton building and came back and said Kelley and the lawyer had not come, and we would go out and see what was the matter. We drove out to a house, and Mr. Clark honked his horn and a lady told us the parties had gone down town. We drove back and saw Mr. Kelley. When Mr. Kelley and Mr. Clark came back to the car, they said they would have to go out somewhere and get a book. We went out past the Tulsa Country Club and turned west and went some distance, and stopped at the residence of Mr. F. A. Boyles. Mr. Kelley got out and woke Mr. Boyles up to get a key to some attorney’s office by the name of Watson, as I understood. Mr. Kelley returned to the car and said Mr. Boyles would not give him the key, and he would have to take Boyles down town with him. When we left the Boyles residence, Mr. Boyles, Mr. Clark, Mr. Kelley and myself were in the car. When we got back to the building, Mr. Kelley and Mr. Boyles went up in the building. Mr. Clark parked his car across the street on Fourth and Boston. Mr. Clark' and Mr. Kelley were across the street from where I was for a short while. They came back, and Mr. Kelley asked me if I was hungry, and I told him I was, and he brought me a sandwich and bottle of beer. Mr. Clark and Mr. Joyce were standing in Minck’s Cafe. When they came out of there, Mr. Clark and Mr. Kelley came to the car. They told me Mr. Joyce was a detective, and Mr. Kelley said he had to take him home. This was about 6 o’clock in the morning. Mr. Clark told Mr. Kelley they had better have me sign this. I said, ‘Sign what?’ and he said, ‘Sign.’ I told him I was not going to sign anything like that, and he says: ‘Oh, yes, big boy, you will sign it or we will do away with you.’ Kelley pulled a paper from his inside pocket, took out his pen, and turned the seat down, and said ‘sign Leonard D. Ingram, N. B. 110’ or something — he had to* look at a piece of paper to see the number. I signed in my natural handwriting, Leonard D. Ingram, N. B. 110 or 222,110 — I have forgotten the number just now. After I had signed the paper, Mr. Kelley told Mr. Clark to meet him two1 miles south on the Bixby road at 10:30, and for him to go down to the train and tell the party he did not need the other one. I don’t know who be was speaking of. Mr. Clark went to bis borne and we bad breakfast, and Mr. Clark drove out to tbe northeast part of tbe city to see a man ■by tbe name of Smith, and I forgot tbe other one, and we then came back to tbe Exchange National Bank.”

The defendant, testifying in bis own behalf, denied any connection with tbe forgery of tbe conveyance to tbe Leonard 13. Ingram royalty interest. He admits be bad been trying to purchase this interest since 1924. He made a trip to1 Washington, D. C., Norfolk, N. Y., and several other places trying to purchase the Ingram royalty interest. Tbe witness Twine met him when be was on this trip, and Chauncey Davis was trying to assist him in locating Leonard D. Ingram. The defendant denied be came with Chauncey Davis from Muskogee on tbe night of September 1, 1926. He admits be was in Muskogee that day, and admits he ran short of money and went to tbe pawn shop and pawned bis top coat for |3. Chauncey Davis says be saw tbe defendant in Muskogee on September 1, 1926, and tbe defendant told him be was out of funds and wanted $3 for gasoline to get back to Tulsa. Tbe defendant admitted be was in Muskogee with F. E. Clark, that F. E. Clark furnished money to' Napoleon Scott to go to Chicago to try to locate Leonard D. Ingram, and that Scott wired tbe defendant from Chicago with reference to bis efforts to locate Ingram. Tbe defendant also stated Clark paid him $2,500 to release any right be bad in tbe effort to buy tbe Ingram royalty. Davis states be directed the defendant to' Klar Bros., where be pawned bis coat. Twine says be saw the defendant in Muskogee tbe evening of September 1, 1926, at tbe drug store where be called Chauncey Davis out; that be bad known tbe defendant since 1924; Boyles says Kelley, Clark, and Chauncey Davis came to bis bouse during tbe night of September 1, 1926, or tbe morning of September 2, 1926, and woke him up for the purpose of getting, the Indian Boll Book. He got up and came to town with them, and Mr. Kelley secured the number.

This is a companion case to' the case of Clark v. State, decided by this court May 24, 1930, and reported in 47 Okla. Cr. 379, 238 Pac. 489. The record in this case is voluminous. There were able counsel in the trial of this case both for the prosecution and the defense.

The case was bitterly contested by both sides. Of the 1,616 pages of the record at least one-fourth of the record is taken up with objections, rulings of the court, and exceptions. The testimony in this case is substantially the same as in the case of Clark v. State, supra, to which reference is made, and is sufficient to sustain the conviction, unless in the trial of the case the court, erred in the admission or rejection of the,testimony, or in its instructions to the jury.

We will consider the assignments of error as they are discussed by the defendant. The first error assigned is, error of the court in overruling defendant’s motion and demurrer to quash the information. It is urged by the defendant there is a fatal variance in the information and exhibit attached thereto, and that the information did not allege that Ingram actually had any such property or that any such property was in existence. The information does not charge that the name of Ingram was unauthorized, and the information does not charge the conveyance was delivered.

Section 2070, C. O. S. 1921, in part provides:

“Any person who, with intent to defraud, forges, counterfeits or falsely alters:
“First. Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or any way changed or affected; * * * Is guilty of forgery in the first degree.”

The defendant in support of his motion and demurrer to the information cites many authorities, and especially relies upon Cook v. State, 23 Ariz. 55, 201 Pac. 397. An examination of the Cook Case shows that the forged check copied in the information purported to be signed by O. G. Powell, and in the trial of the case the check alleged to have been forged and. introduced in evidence purported to have been signed by C. G. Powell, Superintendent, by -■ — , Secretary, which clearly shoived a variance in the instrument pleaded in the information and the one offered in proof. In this case the exhibit attached to the information alleged to be a copy of the document forged and the conveyance alleged to have been forged introduced in evidence were correct copies of the exhibit attached, to the information. The facts in the case of Cook v. State, supra, and the case at bar are very different. The information in this case sufficiently informed the accused of the charge against him and so defines the offense that the accused, if convicted or acquitted, ivould be able to defend himself in case he is informed against or indicted again for the same offense by pleading the record of such former conviction or acquittal, and is good as against a motion to quash or demurrer. Whitfield v. State, 37 Okla. Cr. 37, 256 Pac. 68; Clark v. State, 47 Okla. Cr. 379, 288 Pac. 489.

The next question urged by the defendant is that the court committed error in denying the defendant, Kelley, the right to inquire of the jurors, on their voir dire, after it was shown they had sat as jurors before, what their verdict had been. It is not disputed that liberal latitude should, be given the defendant in the examination of jurors in order that he may ascertain if there are any grounds for actual or implied bias, in order to enable him to properly exercise his peremptory challenges. It is not contended in this case that, 'by reason of a refusal of the court to permit the jurors to answer on their voir dire what their verdict had been in cases in which they had been jurors previous to the calling of this case for trial, it forced the defendant to exhaust his peremptory challenges and to accept jurors who were not competent jurors on the panel to try his case. One of the cases relied on by the defendant to sustain his contention is Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733. In that case it was shown by the record that the jurors challenged for bias, on the day before they were called for trial in the Temple Case, had rendered a verdict convicting the same defendant of forgery, and it appears that the testimony in the first case involved controverting questions of - fact in issue in the Temple Case, and that the same witnesses would be called to give the same testimony on an issue the same in both cases. Therefore the court held they would not be unbiased jurors. In this case no such question is raised and no facts introduced to show bias or prejudice on the part of either of the jurors impaneled to try the case. The court did not err in refusing to permit the jurors questioned on their voir dire to answer what their verdict had been in the trial of the case where they had previously sat as jurors.

It is next urged by the defendant that the court committed reversible error in not declaring a mistrial because Chauncey Davis, the principal witness for the state, stated before the jury that P. E. Clark, a codefendant, had been convicted by another jury. No authorities are cited in support of this contention, and, in view of the fact that the court admonished the witness that he should answer the question and not make any voluntary statements, we do not think the rights of the defendant were prejudiced, and that the motion of the defendant to declare a mistrial was properly overruled by the court.

It is next urged by the defendant that no sufficient predicate was laid to make competent the testimony of F. A. Boyles. The witness F. A. Boyles lived in Osage county, near the edge of the city of Tulsa. A subpoena was issued to him, and the officer who' undertook to serve it in the adjoining county and several other witnesses testified at the time the case was called for trial Boyles was out of the state. It is urged by the defendant that the statements of the witnesses that Boyles was out of the state is in the nature of hearsay testimony, and therefore not sufficient predicate to justify the admission of the testimony of Boyles taken in the preliminary trial.

In Henry et al. v. State, 32 Okla. Cr. 67, 240 Pac. 128, in the second paragraph of the syllabus, the court said:

“The proof that a witness is a nonresident of, and is absent from, the state, offered as a predicate for introducing in evidence a transcript of the testimony of such witness, taken at a preliminary hearing, is not incompetent as hearsay, although based upon statements made to the witnesses by whom such proof of nonresidence and absence is made, since the fact of nonresidence or absence can generally be proven in no other manner.”

The record further shows that, when the testimony of Boyles was offered at the trial, by agreement of counsel for the defendant and the state, the defendant’s counsel was given an opportunity to' interpose objections to any question propounded to the witness in the preliminary, and did so, and secured a ruling of the court upon them before the answer was read tO' the jury.

Upon the showing made by the state, it was not error for the court to permit the testimony of Boyles, taken in the preliminary trial, to be read to the jury.

The defendant in his fourth assignment insists that the court committed error in refusing to admit in evidence the letter addressed to the Peabody Hotel, in Memphis, Tenn., requesting the hotel to send a witness to Oklahoma to testify as to the alleged flight of the defendant. The record has been carefully examined, and we fail to find where the refusal to admit the letter complained of by the defendant did in any way whatever bias or prejudice him. The witnesses from Memphis were cross-examined, and stated their expenses were to be paid. The state did not dispute the fact that the prosecuting witness and his counsel were anxious to have the defendant tried on the charge brought against him. The defendant contends that the court erred in permitting the state to call witnesses in rebuttal, contending that the witnesses were called back to the stand for the purpose of trying to get to the jury a last impression of the case. It may have been the intent of the prosecution when it called the witnesses in rebuttal to get a last impression in the case to the jury, but the record does not disclose that fact, and the court did not err in permitting the state to call the witnesses in rebuttal.

The defendant further contends that throughout the cross-examination the court unduly, and to the prejudice of the defendant, prevented certain questions being answered by the defendant which were legitimate cross-examination. Nowhere in the brief are the questions complained of set out, and we have no knowledge of what questions the defendant complains.

The defendant next complains of instruction No. 9, given by the court on the question of an accomplice. Instruction No. 9, as given by the court, correctly stated the law on the question of an accomplice as applied to the facts in this case, and the assignment does not possess sufficient merit to warrant a reversal.

It is next urged by the defendant that there is no evidence in the case implicating Kelley in the forgery of the mineral deed set forth in the information. While the evidence in this case is conflicting, the evidence on the part of the state connects Kelley with Chauncey Davis and F. E. Clark at different times from the 1st day of September, 1926, until the close of the transaction on the 2d day of September, 1926. While the testimony on behalf of the defendant denies any connection of the defendant with the transaction, and the defendant called a number of witnesses who testify in his behalf tending to establish an alibi for the defendant, and to show that the defendant was not connected with the forgery of the conveyance in any way whatever, the conflict in the testimony was settled adversely to the defendant, and this court has repeatedly held that, where there was any competent testimony to go to the jury, though the testimony was conflicting, it would not disturb the verdict.

It is next urged by the defendant in his ninth assignment: “That the corroboration of the witness Chauncey Davis was not sufficient to meet the legal requirements of the statutes” — citing many decisions in support of his contention as to whether the witness Chauncey Davis was an accomplice with the defendant Kelley.

The forgery of the conveyance was submitted to the jury by correct instructions of court, and the jury was confronted with the witnesses and saw their demeanor on the stand, and bad an opportunity to judge tbe truth or falsity of their evidence, and, after hearing all the evidence, the instructions of the court, and argument of counsel, by its verdict decided adversely to the defendant.

Many questions are argued at length by the defendant and the state. To specifically refer to and quote all of them would extend this opinion to unreasonable length. It is sufficient to say that the defendant was accorded a fair and impartial trial, that the court correctly advised the jury as to the law applicable to' the facts in this case, and that there are no' fundamental or prejudicial errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

CHAPPELL and EDWARDS, JJ.; concur.