text:
    A. W. CULLARS v. STATE.
    No. A-3722.
    Opinion Filed Sept. 17, 1921.
    (200 Pac. 560.)
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

      A. W. Cullars was convicted of a violation of the prohibitory liquor laws, and he appeals.
    Judgment modified as to fine and imprisonment and affirmed.
    Crump, De Graffenreid & White, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

A. W. Cullars was convicted in the superior court of Muskogee county of having sold, on the 1st day of September, 1919, to one Hobart Brown, certain intoxicating liquor in the form of Jamaica ginger, and was sentenced to serve a term of 90 days’ imprisonment in the county jail and to pay a fine of $250.

It is contended that the conviction should not be sustained because of the unsatisfactory nature of the evidence against defendant.

The evidence on the part of the state is to the effect that said defendant sold to Hobart Brown a bottle of Jamaica ginger for 50 cents; that the said liquor was intoxicating; that said Brown was in an intoxicated condition at the time; and that defendant stated at the time he was arrested, right after the alleged sale was made, to the deputy sheriff who arrested him, “You have got me.”

Defendant as a witness denied making the sale, and introduced witnesses who swore that his general reputation as a law-abiding citizen was good.

We are of the opinion that the state’s evidence, if believed by the jury, was sufficient to establish the sale of intoxicating liquor as alleged in the information.

It is also contended that the information is insufficient. No demurrer was interposed to the information in the court below, nor was any objection made to the introduction of evidence because of insufficiency of the information.

The instructions of the court required the jury to find defendant guilty of selling an intoxicating liquor in the form of Jamaica ginger, and further instructed that there was no presumption of law that Jamaica ginger was intoxicating. The jury found defendant guilty as charged in the information, and the court pronounced judgment against defendant for. the crime of unlawfully selling intoxicating liquor as charged in the information.

In the absence of any demurrer to said information, or objection in the lower court, we deem the same sufficient, although inartificially drawn, to sustain the verdict and judgment of conviction for selling intoxicating liquor. The cases cited and relied upon by counsel for defendant relate to the sale of substitutes for intoxicating liquors, and are not applicable in a prosecution charging directly the sale of intoxicating liquor. It is only fair to state that counsel who represent defendant in this court did not appear for him in the trial of the cause.

The evidence discloses that defendant bore a good reputation as a law-abiding citizen. There is nothing to show that he had ever violated this or any other criminal statute of the state prior to his conviction in this cause. The punishment imposed is severe, being that usually imposed upon confirmed offenders.

In the furtherance of justice, it is the opinion of this court that the judgment should be modified to provide imprisonment for a period of 30 days in the county jail and a fine of $100, and so modified the judgment is affirmed.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    ALVIN LITTLETON v. STATE.
    No. A-3724.
    Opinion Filed Sept. 17, 1921.
    (200 Pac. 716.)
    (Syllabus.)
    1. Appeal and Error — Harmless Error — Rejection of Evidence. An error in the rejection of evidence is not ground for reversal, unless, after an examination of the entire record, it appears to this court that the same probably resulted in a miscarriage of justice, or deprived defendant of a constitutional or statutory right.

      2 Homicide — Trial for Murder — Conviction of Manslaughter — Instruction on Murder Not Prejudicial. Where defendant is charged with and tried for' murder, and is convicted of manslaughter, objections urged to instructions given upon the question of murder will not be considered on appeal in the absence of a showing that the appellant was injured thereby.
    3. Same — Excessive Punishment — Modification of Sentence. Where, in the opinion of this court, after considering evidence, punishment imposed appears excessive, and the result of passion and prejudice, discretion to modify same will be exercised under authority conferred by section 6003, Revised Laws 1910.
    Appeal from District Court, McCurtain County; A. A. McDonald, Judge.
    Alvin Littleton was convicted of manslaughter in the first degree, and sentenced to imprisonment for 35 years, and he appeals.
    Judgment modified to imprisonment for 15 years, and as modified, affirmed.
    Etheredge & Arnett, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Alvin Littleton was informed against in the district court of McCurtain county, charged with having, an the 3d day of July, 1919, murdered one Frank Tassey by shooting him with a shotgun. Trial was begun on the 10th day of September, 1919, and concluded on the seeond day thereafter, the jury returning a verdict of guilty of manslaughter in the first degree, and assessing the punishment at imprisonment in the state penitentiary for a period of 35 years.

In due time defendant filed a motion for a new trial, which was overruled, and exceptions saved to the ruling of the court thereon, and within the time allowed by law, and in the manner provided by law, an appeal was lodged in this court by filing herein petition in error with ease-made attached.

It is first contended that the trial court .erred in sustaining the motion of the state to strike from the evidence a certain rock that had theretofore been admitted in evidence without objection. To the action of the trial court in striking this evidence, defendant at the time excepted.

The defense relied upon was self-defense and the undisputed evidence was to the effect that deceased was in the act of making an assault upon defendant with a certain rock at the time defendant shot and killed him. The wife of defendant, called as a witness in his behalf, was shown a certain rock which was found at the scene of the tragedy a few days after its commission, and she identified this rock to the best of her judgment as the one which deceased had in his hand and was in the act of throwing at defendant at the time defendant shot him.

The identification was not positive, but the witness testified that the rock in shape and size and appearance looked to be the rock that she saw in the hand of deceased at the time of the shooting. There was no controverting evidence on this issue, and we think that, having admitted the rock in evidence under such circumstances, the court was in error in afterwards striking this evidence from the jury's consideration. We think the better course to have pursued would have been to let the evidence stand, leaving the sufficiency of the identification as a question for the jury under a proper instruction; but, in view of the fact that this rock was introduced in evidence, displayed to the jury, and inspected by the jurors, and in view of the further fact that there was no conflict in the evidence to the effect that deceased was in the act of making an assault upon defendant with a rock similar to this one, if not that identical rock, at the time defendant fired the fatal shot, we do not deem the commission of this error sufficiently prejudicial to defendant to authorize a reversal of this judgment.

Certain instructions of the trial court are complained of, the giving of which is alleged to be erroneous.

The first instruction complained of relates solely to the charge of murder. This court has repeatedly held:

Where defendant “is charged with and tried for murder, and is convicted of manslaughter, objections urged to instructions given upon the question of murder will not be considered upon appeal, in the absence of a showing that the appellant was injured thereby.” Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Morgan v. Terr., 16 Okla. 530, 85 Pac. 718.

We find no error in this instruction as applied to the evidence of defendant’s guilt of the crime of murder, nor do we consider the giving of the same to have prejudiced or injured defendant in any way.

Further, it is contended that the court erred in refusing to give certain requested instructions.

An examination of the general charge of the court discloses that the law covered in the requested instructions is fully expounded in the charges given in a fair manner and as favorably to defendant as the evidence warranted.

Lastly, counsel for defendant insist, that the punishment inflicted is clearly excessive in the light of the evidence adduced against defendant. We think there is considerable merit in this contention. This difficulty took place on a bed in Little river, in MeCurtain county, where defendant and deceased had gone to spend the Fourth of July. Both were farmers and neighbors, and the best of friends. Deceased was a man about 47 years old, and had a wife and several children; defendant was about 30 years old, and had a wife and two small children. They had never had any previous trouble with each other, and as far as the record discloses defendant had never been in any previous difficulty.

It is undisputed that prior to the fatal shot deceased had drawn a knife upon defendant, had assaulted him several times with large rocks about the size of a man’s two fists, and was in the act of continuing such an assault at the time the fatal shot was fired. Both deceased and defendant had been drinking just previous to the difficulty. Deceased, in addition to assaulting defendant, had applied a vile and' opprobrious epithet to him. While there is no conflict in the evidence as to deceased having made an assault upon defendant as above indicated, the jury evidently were of the opinion that defendant employed more force under the circumstances than reasonably appeared to him to be necessary in his defense.

The case was vigorously prosecuted, and resulted as above stated in a verdict fixing the punishment at 35 years’ imprisonment in the penitentiary. At defendant’s age this is practically equivalent to life imprisonment, and in the opinion of this court, after a full and careful consideration of the evidence, is excessive, and evidently the result of passion and prejudice on the part of the jury.

Under authority conferred upon this court by section 6003, Revised Laws 1910, we deem it our duty to modify the judgment to provide imprisonment for 15 years instead of 35 years

1 is therefore ordered and adjudged that the judgment be so modified, and as modified, be affirmed.

D1YLE, P. J., and BESSEY, J., concur.


author: PEE CURIAM.

text:
    Ex parte H. M. THOMPSON.
    No. A-4061.
    Opinion Filed Sept. 19, 1921.
    (200 Pac. 718.)
    Application of H. M. Thompson for writ of habeas corpus to be admitted to bail.
    Bail allowed.
    Yf. E. Utterbaek and Ohas A. Coakley, for petitioner.
    The Attorney General, C. W. King, Asst. Atty. Gen., and Geo. L. Sneed, Co. Atty., for respondent.
   PEE CURIAM.

Petition of H. M. Thompson for writ of habeas corpus by which he seeks to be admitted to bail pending his trial upon a charge of murder, and where upon his preliminary examination he was held without bail, and is now confined in the county jail of Marshall county by John Glenn, sheriff of said county.

It is averred that he is not guilty of the crime of murder charged, and that the proof of his guilt is not evident nor the presumption thereof great. Attached to said petition and made a part thereof is a transcript of the testimony taken .before the committing magistrate and the testimony on his application to the district court of Marshall county for admission to bail in said cause, which application was denied.

By numerous decisions of this court it is held that upon an application for bail by writ of habeas corpus after commitment for a capital offense by an examining magistrate, the burden is upon, petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the stat.e. Ex parte Dykes, 6 Okla. Cr. 162, 117 Pac. 724; In re Fraley, 3 Okla. Cr. 719, 101 Pac. 295, 139 Am. St. Rep. 988.

The evidence for the state shows that A. A. Greenman was shot and killed by II. M. Thompson, in the city of Madill, on the date alleged, between the hours of 9 and 10 o’clock p. m.

On the part of the defense tivo or three witnesses testified as to threats made by the deceased against tie petitioner, to the effect that he had come 3,000 miles to kill him.

It appears that the deceased and petitioner had been partners in farming and stock-raising business for about two years preceding January 1, 1921; that no final settlement of the partnership affairs had been made.

Petitioner as a witness in his own behalf testified:

“I had been absent from home 9 or 10 days, having been to St. Louis, Mo., Toledo and Cleveland, Ohio. I returned to Madill on the 10th, and went to "Woodville to see my father, and returned to Madill about 7 o’clock. Morris Carden told me that Mr. Greenman was in Madill looking for me, and saying that, ‘he was going to kill yoü.’ I asked him what was the matter, and he said that Greenman said, ‘You know as well as I do that I worked up there for you and him and he hasn’t settled up with me.’ The exact words I think were ‘that he had come to kill you and was going to kill you.’ The next day I went with Mr. Carden to Ardmore. Before leaving Madill, Arthur Keltner told me that he asked Green-man what he was doing back here, and Greenman said, ‘I have got important business here. I have traveled 3,000 miles to kill Thompson, and I am going to do it before I leave.’ I asked Morris Carden to go to Greenman and tell "him that I didn’t want any trouble with him; that I wanted him to drop it. The next morning he told me he saw him, and that Greenmail said, ‘I have traveled 3,000 miles to do this, I will not drop it.’ I returned to Madill about 6:30. After supper I went down to the telegraph office, somewhere about 8:30, md sent some messages; one to the First National Bank at San Angelo, one to Dave Kelly, Oklahoma City. I had some telegrams in my hand when I left the office. I missed them vhen I got back to the Palace Hotel, and I drove back to the depot, where the car had been standing, to look for them. I turned around and drove back up the street from the Fr.sco depot. After passing the block the Boyal Hotel is in I neard some one say ‘Thompson.’ I looked up and Bert Greenuan was stepping off the sidewalk coming directly towards me, with his right hand in front of him. I had been informed about 7 o’clock that Greenman was carrying a gun inside of his shirt front. When I looked he was bringing his hand around in front of him. I pulled my gun and commenced firing without any hesitation, and fired three shots. He fell between the sidewalk and the automobile. His feet were five or six feet from the car. I thought he was going to pull a gun and shoot me. People came running up, and I said, ‘Some one call a doctor, and wait until the law gets here.’ Mr. Dixon came up, and asked who shot him. I said, ‘I did, and I am ready to surrender to you.’ ”

We deem it unnecessary to further detail the testimony. We think the evidence offered is sufficient to raise an issue of manslaughter in the first degree. It follows that petitioner is entitled to be admitted to bail. It is therefore adjudged and ordered that petitioner be admitted to bail, and the same is hereby fixed in the sum of $25,000, bond to be conditional as required by law, and the same to be approved by the court clerk of Marshall county.


author: BESSEY, J.

text:
    CY DENNISON v. CHRISTOPHER, Superior Judge.
    No. A-4018.
    Opinion Filed Sept. 22, 1921.
    (200 Pac. 783.)
    (Syllabus.)
    1. Judges — Fair and Impartial Trial. Courts should scrupulously maintain the right of every litigant to an impartial and disinterested tribunal for determination of his rights; and the judges presiding over such courts should be unbaised, impartial, and disinterested in the subject-matter in litigation, and all doubt and suspicion to the country must be jealously guarded against, and, if possible, eliminated.
    2. Same. — Society in general, as well as the parties to an action, is interested in preserving the purity and impartiality of the courts, in order to foster respect and confidence of tie people in court proceedings.
    3. Judges — Disqualification—Mandamus to .Compel. Where a judge is disqualified to hear and determine a cause pending before him, he should certify his disqualification; and, upon refusal to do so, when requested in the manner provided by law, mandamus will lie.
    Application by Cy Dennison for writ of mandamus against H. R. Christopher, Judge of the Superior Court of Okmulgee County.
    Respondent ordered to certify his disqualification to try controversy, and upon his failing to do so writ will issue.
    See, also, 19 Okla. Cr. 179, 198 Pac. 514; 19 Okla. Cr. 223-200 Pac. 785.
    J. S. Eaton, E. M. Carter, and John Caruthers, for petitioner.
    James Hepburn, Co. Atty., for respondent.
   BESSEY, J.

This is an action in which a writ of mandamus is sought by Cy Dennison, who has made application to this court to compel Pión. H. R. Christopher, judge of the superior court of Okmulgee county, to disqualify from presiding in any further proceedings against the applicant on charge of murder pending in that court, on the ground that said judge is in such a state of mind and so prejudiced against said petitioner and his attorney as to seriously interfere with his having a fair and impartial trial. The respondent, Judge Christopher, denied generally and particularly all of the allegations contained in the application.

An application for a change of judge and an application for a transfer of the cause from the superior court to the district court of Okmulgee county bad been made, as provided by law, and botb applications were by tbe respondent refused before tbe application of tbe writ of mandamus was filed in tbis court. The application charges, in substance, as follows:

(1) That said superior judge has been unduly active in directing tbe manner and means to be employed by tbe county attorney for successfully prosecuting tbe charge of murder against tbis applicant.

(2) That said superior judge ordered tbe county attorney to file an amended information against tbis applicant.

(3) That said respondent secretly entered into an agreement with tbe county attorney and an attorney representing Roy Massengale, an alleged coconspirator with tbis applicant, and charged separately for tbe same offense growing out of the same transaction, appointing one Wylie Melton as a special sheriff of Okmulgee county to take charge of and transfer said Massengale to tbe state penitentiary at McAlester, pending further proceedings against said Massengale, done for tbe purpose of and in furtherance of a plan of using said Massen-gale as a witness against tbe petitioner, Cy Dennison.

(4) That tbe order above made was made secretly, and that tbe clerk of tbe court was ordered by said judge to "pigeon-hole” the order, so that the same might not became public, and in order that this petitioner and his attorney should have no knowledge of it.

(5) That the respondent has shown partisan bias against the petitioner by taking an undue interest in the affairs growing out of the alleged murder of Bob Burden and in furnishing to newspapers reports from which inflammatory and prejudicial newspaper articles were written and published in Okmulgee, to petitioner’s prejudice.

(6) That the respondent has had frequent secret conferences with the county attorney concerning' the conduct of the prosecution of the case against petitioner, and that through such conferences an agreement was made between the respondent, the county attorney,, and the attorney for Roy Massengale, wherein it was agreed that the court would accept a plea of guilty from said Massengale and impose a mitigating sentence, in consideration that said Roy Massen-gale should testify for the state against this applicant.

Affidavit, depositions, and oral testimony have been introduced and heard by this court in support of and in resistance of this application. It would be neither edifying nor instructive to analyze this testimony in detail. Our conclusion, in the abstract, is that the charges made by the petitioner for the most part have not been sustained by the preponderance of the evidence. There is, however, a sufficient showing made to convince this court, considering all the evidence in connection with the circumstances surrounding this case, that the respondent, consciously or unconsciously, is not impartial towards the petitioner; and this to such an extent as to lead this court to believe that there is a probability that the further proceedings in the case pending against the petitioner might not be conducted in such a dignified, orderly, impartial manner as to inspire the respect and confidence of all parties concerned, and that of others not directly concerned. For that reason the respondent should have certified his disqualification and yielded the bench to some other trial judge. This could have been done in this case without serious inconvenience or delay, for the reason that there were then two district judges having concurrent jurisdiction with the superior court in Okmulgee county, and, the district court being then in session, the case could have been speedily tried before one of these judges.

Every defendant in a criminal case, whether guilty or not, is entitled to a fair and impartial trial, a trial in which right and justice shall be administered without prejudice. Article 2, § 6, Constitution.

Applied to this case, this means that this petitioner charged with murder is entitled to be tried by an impartial, disinterested tribunal. All doubt and suspicion to the contrary must, if possible, be eliminated. McCullough v. Davis, 11 Okla. Cr. 431, 147 Pac. 779; State ex rel. Mayo v. Pitchford, 43 Okla. 105, 141 Pac. 433; State ex rel. Warner v. Fullerton, 76 Okla. 35, 183 Pac. 979.

Moreover, the state has an interest in the standing, integrity, and reputation of its courts, and, when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. Such prohibitions are plainly intended, not only for the benefit of the parties to a suit, but for the general interests of society, by preserving the purity and impartiality of the courts and fostering the respect and confidence of the people for their decisions. 15 R. C. L. 530.

We are not unmindful of the fact that the practice of disqualifying trial judges on the grounds of bias or prejudice may be subject to much abuse. Captious and unwarranted accusations of bias should be discouraged. On the other hand, much of the adverse criticism against the courts of this state may be traced to the interest, real or apparent, shown by trial judges either in the subject-matter of the suit or the ultimate judgment to be rendered in particular cases. And in order to foster confidence in the integrity and impartiality of courts, a presiding judge should be compelled to certify his disqualification where it appears probable that such judge would not afford the defendant a fair trial.

The respondent, therefore, is ordered forthwith to certify his disqualification to try the matter in controversy, and upon his failure to do so a writ of mandamus will issue.

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


author: PER CURIAM.

text:
    RAYMOND SCAGGS v. STATE.
    No. A-3662.
    Opinion Filed Sept. 23, 1921.
    (200 Pac. 292.)
    Appeal from District Court Delaware County; A. C. P>rewster, Judge.
    Raymond Scaggs was convicted of rape and appeals.
    Dismissed.
    Hunt & Beauchamp, John R. Leach, and Preston S. Davis, for plaintiff in error.
    The Attorney General and E. L- Fulton, Assistant Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Raymond Scaggs, was convicted of rape and his punishment fixed at imprisonment in the penitentiary for the term of eighteen years. From the judgment rendered on the verdict he appealed by filing in this court on November 20, 1919, a petition in error with transcript of the record attached.

A motion to dismiss the appeal was this day filed on his behalf by his father, at his request. It appears from the record that he is a minor, and that following the judgment he was committed to the penitentiary pending the determination of his appeal. The motion to dismiss the appeal is sustained, and the appeal herein is dismissed.


text:
    DAN SCAGGS v. STATE
    No. A-3661.
    Opinion Filed Sept. 23, 1921.
    (200 Pac. 292.)
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Dan Seaggs was convicted of rape, and appeals.
    Dismissed.
    Hunt & Beauchamp, John R. Leach, and Preston S. Davis, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Dan Seaggs, was convicted of rape and his punishment fixed at imprisonment in the penitentiary for the term of 15 years. From the judgment rendered on the verdict he appealed by filing in this court on November 20, 1919, a petition in error with transcript of the record attached.

A motion to dismiss the appeal was this day filed on his behalf by his father, at his request. It appears from the record that he is a minor, and that following the judgment he was committed to the penitentiary pending the determination of his appeal. The motion to dismiss the appeal is sustained and the appeal herein is dismissed.


author: DOYLE, P. J.

text:
    GEO. W. BRADLEY v. STATE.
    No. A-3794.
    Opinion Filed Sept. 26, 1921.
    (200 Pac. 788.)
    (Syllabus.)
    1. Appeal and Error — Dismissed—Defendant Becoming a Fugitive from Justice. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or o'rder which may be rendered or entered in the case. And where it appears that a defendant is a fugitive from justice, or has left the jurisdiction of the state, this court will on proper motion dismiss his appeal.
    Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.
    John Bradley was convicted of grand larceny, and he appeals.
    Appeal dismissed.
    Geo. W. Martin, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John Bradley, was convicted in the district court of Kiowa county of grand larceny, and at the regular December, 1919, term of the district court he was by the judgment of the court sentenced to imprisonment for a period of two years in the reformatory at Granite, under an information filed by the county attorney of said county charging him and one Frank Hendricks with the crime of grand larceny. From the judgment an appeal was perfected by filing in this court on June 7, 1920, a petition in error with case-made.

On May 19, 1921, the Attorney General filed the following motion to dismiss the appeal.

“Comes now the Attorney General by E. L. Fulton, Assistant Attorney General, and represents and shows to the court that the above named plaintiff in error, John Bradley, has left the jurisdiction of this court, and is now in the state of Texas, and in support of this allegation there is attached hereto the affidavit of C. G. Bass, assistant county attorney of Kiowa county, state of Oklahoma.
“Wherefore the defendant in error moves that the appeal as to the said John Bradley in the above-entitled cause be dismissed.”

Said affidavit so attached is in part as follows:

“That John Bradley, one of the plaintiffs in error, is without the jurisdiction of this court and is in the state of Texas, and as affiant verily believes has been in said state of Texas for the past several weeks; that affiant bases the above statement upon the following facts:
“Affiant is informed by members of said John Bradley’s family that he was in Texas; and further that on the 2d day of May, 1921, the said John Bradley was called in the district court of Edowa county, Okla., to come into said court and save his recognizance, which he failed to do; that thereafter his said bond was forfeited by order of the said district court and a warrant issued for his arrest as a fugitive from justice; that the sheriff of Kiowa county informs this affiant that the said John Bradley is out of the state of Oklahoma.”

To this motion to dismiss no answer or response has been filed.

Under the repeated decisions of this court, when it is shown that the plaintiff in error is a fugitive from justice, or has left the jurisdiction of the state of Oklahoma, and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by this court, the appeal will be summarily dismissed. Young v. State, 16 Okla. Cr. 116, 180 Pac. 872; Vann v. State, 10 Okla. Cr. 644, 133 Pac. 1197 ; Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548; and many others.

Upon the uncontroverted facts plaintiff in error, John Bradley, has waived his right to have his appeal in this case considered and determined. The appeal as to plaintiff in error, John Bradley, is therefore dismissed.

Mandate forthwith.

MATSON and BESSEY, JJ., concur.


author: DOYLE, Judge.

text:
    John T. Taylor v. Territory.
    No. 319.
    Opinion Filed February 3, 1909.
    (99 Pac. 628.)
    1. FALSE PRETENSES — Indictment — Sufficiency — ¡Reliance on Representations. An indictment ior obtaining money by false pretenses, charging that the defendant falsely and fraudulently represented, that he was the owner of certain lots, etc., which fails to allege that the prosecuting witness was thereby induced to, and did, loan the defendant said sum of money, is fatally defective, and a general demurrer thereto should be sustained.
    2. SAME — Indictment—Sufficiency. In an indictment for obtaining money by false pretenses, the absence of a direct and positive allegation in the description, substance, nature, or manner of the offense, the ambiguity and uncertainty of the language used, cannot be supplied by intendment, argument, or implication.
    3. TRIAL — Province of Court and Jury — Direction of Verdict. If there is any evidence tending to prove that -the defendant has committed the offense charged in the indictment, it is not error for the court to overrule defendant’s motion, at the close of the evidence, requesting the court to advise the jury to acquit the defendant on the ground that the evidence is insufficient to warrant a conviction.
    4. FALSE PRETENSES — Evidence—Sufficiency. In a prosecution for obtaining .money by false pretenses, the defendant cannot be convicted if the false pretense was expressed in language alone, unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. Held, that under the evidence in this case the testimony of the prosecutor was not sufficiently substantiated by the second witness, or by corroborating circumstances.
    2 Cr. — 1

      5. SAME — Nature of Pretense — False Promises. The false pretense must be the assertion of an existing fact, and not a promise to perform in the future.
    (Syllabus 'by the Court.)

      Error from District Court, Logan Countyj A. II. Huston, Judge.

    John T. Taylor was convicted of obtaining money by false pretenses and he brings error.
    Beversed.

      C. G. Hornor, for plaintiff in error.—
    On sufficiency of indictment: Hughes’ Criminal Law, § 635; Redmond v. State, 35 Ohio St. 81; Wharton’s Criminal Law_ § 1215; Com. v. Strain, 10 Mete. 522; State v. Orbis, 13 Ind. 569; State v. PUTbriclc, 31 Me. 401; Slate v. Green, 7 Wis. 676.
    On question of variance: Briscoe v. Stale, 4 Tex. App. 221; Bishop’s Grim. Proc., § 140 (1st Ed.); Curry v. State, 4 Tex. App. 574; Wharton’s Criminal Law, § 1195 el seq.; Regina v. Brady,, 26' U. C. Q. B. 13; Regina v. Brian, 2 F. & E. 567; Com. v. Howe, 132 Mass.; Kennedy v. State, 34 Ohio St. 310; Bonnell v. State, 64 Ind. 498; State v. Baggerly, 21 Tex. 757.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the Territory.
   DOYLE, Judge.

John T. Taylor, plaintiff in error (hereinafter designated as defendant) was, without preliminary complaint or examination, indicted in the district court of Logan county, Olda. T., September 2'6, 1907, and was tried and convicted in the district court of Logan county, Olda., for the crime of obtaining money by false pretenses, and on April 3, 1908, he was sentenced to the state penitentiary for the term of one year at hard labor. From this judgment defendant appeals. Numerous assignments of error are presented by the petition. Those argued in the brief are “error of the court in overruling the demurrer to the indictment; admitting incompetent, and rejecting material, testimony: that the verdict is not supported by sufficient evidence and is contrary to law; and error in overruling the motion for a new trial.”

After a careful examination of the record, the conclusion of the court is that the judgment in this case cannot be permitted to stand. In the first place, the indictment is insufficient. The' Attorney General has filed a confession of error and motion to remand in the case, which motion, omitting the formal part, is as follows:

“Conies now the Attorney General of the state of Oklahoma, in the cause above entitled, and states that in his opinion certain reversible errors of the district court of Logan county, from "which said cause was appealed, are manifest from the record, and render nugatory and void its proceedings in said cause, in that the indictment upon which the trial was had, and upon which the verdict of the jury and judgment and the sentence of the court are predicated, does not allege facts sufficient to charge the plaintiff in error with a public offense. For the reasons stated, should the court hold said indictment insufficient, it is hereby confessed, for and upon behalf of the state, that the motion of plaintiff in error for a new trial should be sustained, and the cause remanded to said district court with directions to enter such orders therein as may be proper in the premises. Chas. West, Atty. General. Chas. L. Moore, Asst. Atty. General.”

The defect in the indictment is that it fails to allege that the false pretenses set forth were relied upon by the complainant, or that he was thereby induced to make the loan when so made. To constitute the crime under our statute, three things are essential: First, a false representation as to an existing fact; second, a reliance on that representation as true; and, third, it must be the moving cause which induced the owner to part with his property.

The language of the charging part of the indictment is:

“That at and within the county of Logan, territory of Oklahoma, and then and there being on the 23d day of August, in the year of our Lord one thousand nine hundred and five, one John Taylor did then and there unlawfully, fraudulently, designedly and feloniously, with intent to cheat, wrong and defraud W. M. Ayres out of the sum of five hundred dollars ($500.00), of the value of five hundred dollars ($500.00), in good and lawful money of the United States, obtained from the said W. M. Ay^es, of the property of the said W. M. Ayres, the said sum of five hundred dollars ($500.00), by then and there fraudulently, designedly, unlawfully and feloniously representing to the said W. M. Ayres, that he, the said John T. Taylor, was the owner of certain lots, to wit, lots seven (7), eight (8), nine (9), ten (10), eleven (11) and twelve (IS), in block thirty-five (35), in that subdivision of the city of Guthrie, known as Capitol Hill, in Logan county, Oklahoma Territory; and also that he, the said John T. Taylor, was the owner of certain other valuable property in the city of Guthrie in that part of the city of Guthrie known as, and designated as the Egg; and also that he, the said John T. Tajdor, was the owner of valuable property located at Chandler, in Lincoln county, Oklahoma Territory, from which said Chandler property he, the said John T. Tajdor, was then and there receiving a rental in the sum of twenty dollars ($20.00) per month, which said representations on the jiart of him, the said John T. Taylor, were then and there false and fraudulent, as he, the said John T. Taylor, was not the owner of the above described property, or any other property in the county of Logan or in the county of Lincoln, Oklahoma, as he, the said John T. Ta3dor, then and there well knew; but that he, the said W. M. Ayres, believing said representations that the said John T. Taylor was the owner of the above set out and described property, and believing that the said John T. Taylor was a man of wealth and well able to pay his debts and obligations, was induced to, and did then and there loan to him, the said John T. Taylor, the said sum of five hundred dollars ($500.00), as aforesaid, which said sum of money was then and there the' property of the said' W. M. Ayres, and which said five hundred dollars ($500.00) was then and there paid to him, the said John T. Taylor on the said loan, by the said W. M. Ayres.”

It is not charged that the defendant pretended or represented himself to be “a man of wealth and well able to pay his debts and obligations,” and it is not set forth that, by reason of the false pretenses regarding the ownership of the lots in Guthrie or property in Chandler, complainant was thereby induced to make .the loan. Had the indictment omitted the allegation, “and believing that the said John T. Taylor was a man of wealth and well able to pay his debts and obligations,” and at least alleged •'that the said W. M. Ayres was thereby induced to and did then and there loan to him,” etc., it would have been sufficient. The language of the indictment is not a direct and positive allegation. It is merely an argument or inference that the owner of a few suburban lots in Guthrie would necessarily be a man of wealth and well able to pay his debts and obligations. All the-' authorities on criminal pleading agree that the absence of a direct and positive allegation in the description, substance, nature, or manner of the offense of false pretense cannot be supplied by any intendment, argument, or implication. The ambiguity and uncertainty of the language used in charging this essential ingredient of the offense is a fatal defect. The money must be distinctly averred to have been obtained by means of the false pretense. State v. Hurst, 11 W. Va. 54; State v. Paul, 69 Me. 215; State v. Chapel, 117 Mo. 639, 23 S. W. 760; State v. Connor, 110 Ind. 469, 11 N. E. 454; Bryant v. Comw., 104 Ky. 593, 47 S. W. 578; Whar. Crim. Law, § 1227.

Second. “The said court erred in refusing, upon defendant’s motion, at the close of the evidence of the prosecution, to advise the jury that the evidence of the prosecution was not sufficient to make out or establish a public offense against the defendant and directing the jury to retire and consider of their verdict on such advice of the court.” Under this assignment it is contended that the evidence offered was insufficient to prove,an offense, and that there is a fatal variance between the allegations in the indictment and the evidence. The prosecution is based on section 2517, ■Wilson’s Eev. & Ann. St. 1903, which provides:

“598. Every person, who with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the Territorial prison not exceeding three years or in a county jail not exceeding one year, or by fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

In this case it is not contended that the verdict complained of was “by color or aid of any false token or writing,” but by a supposed false pretense included within the general clause “or other false pretense.” The testimony of two witnesses was offered. W.. M. Ayres, as shown by the record, testified, in part,- as follows :

“Q. Are you acquainted with'Capt. Taylor? A. Yes, sir. Q. How long have you known him? A. Well, I guess about three years. Q. Did you know him prior to August 23, 190.5.? A. Oh, I met him several times, he kind of made a friend of me; yes, sir. Q. At the time you first met him, what were you doing here? A. Oh, I was looking after a piece of land I had foreclosing a mortgage on a piece of land over here at Waterloo. Q. How long did you say you knew Taylor before the 2'3d of August, 1905 ? A. Oh, maybe about a year. Q. How frequently had you seen him in that time? A. Oh he was on the street every few days. I was back and forth to Oklahoma City. I wasn’t here all the time. Q. Had you had any conversation with him in that time? A. Oh, yes. Q. On how many occasions? A. . Oh, a good many, he' pretended to he a friend of mine. Q. Did you have any business transaction with him on the 23d of August, 1905? A. Yes, sir. Q. What transaction did you have? A. He borrowed $500, made a loan of me for 60 days. Q. How did you pay him? A. Well, with a check. He had the note and check himself— Q. At the time you gave him the cheek, state what, if anything, he gave you. A. He gave me his note. Q. You may state to the jury, Mr. Ayres, the conversation leading up to that transaction. A. Well, he says, ‘Mr. Ayres, meet me down here at Weinberger’s,’ he says: ‘Get on the street car and come out. I want to show you my lots on Capitol Hill. Well, that’s fine.’ I got on the car and went out with him. Now, we went through the park, down there on the north side of the park. Mr. Reed lived in' a tent, and we went there, and he says: ‘This is Mr. Ayres, from Ohio. I brought him out to show him my lot. Now, Mr. Reed, I wish you would help me find the corner stone.’ And Mr. Reed looked around and finally found it. Now, he pointed in a southeasterly direction. He saj^s, ‘These are my lots,’ and he says, ‘I own six across the branch on Mansur and Walnut, and I own a property in Chandler bringing $20.00 a month that I can sell’ any time.’ That was the conversation between me and Mr. Eeed and Taylor, and is what Taylor told me and Eeed. Q. What other conversation did you have? A. Well, we left Mr. Eeed there, and we went across the branch, and he showed me up them lots, and I did say this, I asked him, ‘What do you consider these lots worth?’ ‘Oh,’ he says, ‘the cheapest $500 apiece.’ That is all that was said, and we went off and took a car and got off at Jake Weinberger’s, and he says: ‘Ayres, come down to the house, I want to have a little talk with you.’ Well, I went down. Now, he says: ‘I suppose you heard I drawed a claim in Utah?’ I says: ‘Yes, I heard you did.’ He says: ‘I will tell you what I want. I have got $2,000 now, and want to borrow $500 more. I want to buy a town site. I was on the town-site board here and understand the business. If I don’t buy a town site, I can just bring this money back and pay you; but, if I do, I will sell my Chandler property, 10 days after I get back. I will make a sale of the Chandler property.’ All that nice talk; he had the note and check all fixed up. Q. Now, after you left those lots, where did you go? A. We, we left Mr. Eeed, he went back to the tent, and we went across the branch, and he showed me six there. Q. The deal was made here at Capt. Taylor’s house? A. Yes, sir. Q. Where were you when he first made the proposition to you to loan him that money? A. Why, it was right in the house. He took me out to the park and shows me up the property, and then we went down to the house, and then there is where we closed up the deal. There was nothing said. I didn’t know what he was driving at until he got down to the house, and he put up such a nice story — ”

He also testified that he was induced to give the check for $500 on the aforesaid statements and representations of defendant, and that the defendant did not own the property described. The foregoing is, in substance, the testimony of the complainant. The record shows the following admission:

“By Mr. McGuire: Mr. Hornor, will you admit you got the money on this check, or will I have to bring the bank officials here to prove it? By Mr. Hornor: I presume that is the check, and, if it is, I presume we got the money on it.”

Wilson’s Eev. & Ann. St. 1903, § 5498 (Code Cr. Proc. § 362), provides, in prosecutions for false pretenses, as follows:

“Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted if the false pretense was expressed-in language unaccompanied by a false token or writing, unless the jjretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.”

In compliance with the foregoing rule in cases of this kind, the prosecution produced the second witness, LaFayette Reed, who testified, in part, as follows:

C£Q. Are you acquainted with the defendant here.? A. Capt. Taylor? Yes, sir. Q. Do you know,Mr. Ayres? A. Yes, sir. Q. State whether or not you saw these two men on this date, 23rd of August, about that time. A. I think it was about the middle of August. I couldn’t swear to the day. Q. Now, just state what transpired there, Mr. Reed. (Objected to as incompetent, irrelevant, and immaterial, which objection was by the court overruled, to which the defendant excepted.) A. Mr. A}'res and Mr. Taylor came to my tent. Mr. Taylor introduced himself as Mr. Taylor, and introduced Mr. Ayres as Mr. Ayres, from Ohio, and in the meantime he mentioned that he was sometimes called Capt. Taylor, and he was speaking, I took it— By Mr. Hornor: Never mind what you took it— By Mr. McGuire: State what was said, Mr. Reed. A. He told me and Mr. Avrcs that he owned a number of lots in the park, and also that he owned a nice property in Chandler that was bringing him in about $20 a month that he could sell at any day— Q. What else was said, if anything, Mr. Reed? A. We were talking about lots, and he spoke of a corner that was near there, and that I knew where the corner was, and I told him I could show him the corner, and I stepped up to the corner with them. It was about 60 yards, I think, from my tent. Q. What did you do when you got up there? A. I looked around a moment and found the corner and showed it to him, and. while we were standing there at the corner, he remarked, he says, “There are my lots laying right in here.’ Q. What further, if anything, was said? A. I believe that is about all that was said that I remember, and they went off in a westerly direction, him and Ayres.”

Applying tliis teat none of tlie pretenses alleged were sufficiently substantiated. It was necessary for the prosecutiou to connect the representations with the final transaction. This could, at best, be only inferred. However, if there is any evidence tending to prove that the defendant has committed the substantive offense ■charged in the indictment, the court should submit the case to the jury. Section 5509, Wilson’s Bev. & Ann. St. 190.3, provides:

“373. If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.”

Defendant’s motion was addressed to the sound discretion of the court, unless the variance between the allegations in the indictment and the evidence offered was fatal. The charge is that defendant obtained $500 in money; the evidence is that he obtained a check. The material question is: Did this evidence support the charge P The statute provides that “any person, who with intent,” etc., obtains any “money or property” from another, shall be punished, etc. This statute specifically designates money and property, and under the general rule in such eases the evidence1 should conform to the allegation. The words of the statute are descriptive, and it is a rule of criminal pleading and practice that whatever is descriptive is essential. The reason of the rule is that the defendant is entitled to have the charge against him specifically designated and described, not only that he may know what to defend against, but to the end that, in case of either conviction or acquittal, he shall not be subject to again be put in jeopardy for the same offense for which he has been once tried.

In Wharton’s Crim. L. § 1221, it is said that:

“The description of property obtained is required to be the same as in larceny. If 'a signature to negotiable paper be obtained, it must be stated as such.”

In section 1222 it is stated that:

“The property obtained must be identified so as to protect the defendant in case of a second prosecution.”

In pursuance of that view, it has been held that the proof must establish the obtaining of the very property alleged in the indictment, or some part of it; that an allegation of obtaining money is not satisfied by proof of obtaining some other property even so nearly the equivalent of money as evidences of money indebtedness, -or orders to pay money. Schleisinger v. State, 11 Ohio St. 669; Baker v. State, 31 Ohio St. 314; Com. v. Wood, 142 Mass. 459. 8 N. E. 432; Queen v. Bradley, 26 U. C. Q. B. 13. There is a conflict of authority upon this question that cannot be reconciled. 'We believe the safe rule is to require the pleader, ■whenever an instrument enters into the offense, as a part or basis [thereof, to set out, in substance at least, the said instrument.

Third. “That the verdict is not supported by sufficient evidence, and is contrary to law.” Under this assignment, it is contended that the evidence, as a whole, is insufficient to sustain the verdict.

The defendant, testifying on his own behalf, in substance, testified as follows: That he was 64 years of age; had lived in Guthrie for 19 years; and in June, 1905, drew a number at .the Government Land Opening, at Grand Junction, Colo. That upon his return to Guthrie, Mr. A3>res spoke to him about drawing this number, while he was waiting for a car to go out to Highland Park and said that he would go with him if he had no objections. That while at Highland. Park they met the witness Beed, and in the conversation defendant stated that he had been a member- of the government town-site board of the city of Guthrie, and that the title to all the lots in Guthrie was then vested in the board of which he was a member. He says that he did not utter one word indicating that he had any right, title, or interest in any Guthrie property at that time, or that he owned any property in Chandler. That he and Mr. Ayres .then took a street car and went from Highland Park to Electric Park, and that while there Mr. Ayres suggested that there might be some money made in locating a town site in Utah, and told him that he had $800- in Joe McNeaFs bank that he wanted to invest so as to make some mone3r. That on the next day, as he was going home from the post office, he again met Mr.- Ayres, who again suggested to him that, with his experience in town-site work, some money might be made out in TJtah. That he (defendant) suggested that, if a relinquishment could be bought low down in number so a good selection could be made, some money might be realized out of it. That it was then agreed by and between them that they would go into a speculation of this kind. They went on to defendant’s house, where he introduced Mr. Ayres to Mrs. Taylor, defendant’s wife, and there it was agreed that defendant, upon his return to TJtah, should purchase a relinquishment for Mr. Ayres; Mr. Ayres agreeing that he would pay a part of the expense of defendant’s trip to Utah. That Mr. Ayres gave defendant a check for $500. Then defendant suggested that he ought to give Mr. Ayers something to show he had received this money from him, and then he wrote a note, signed and gave it to Mr. Ayres. In a day or two he went to Utah to file on his claim, and while there purchased a relinquishment for Mr. Ayres. That upon his return to Guthrie Mr. Ayres refused to accept the relinquishment and made threats that, unless he returned the entire amount, he would have him indicted, and also refused to settle for his share of the expense of defendant’s trip. This testimony is corroborated by defendant’s wife, as to what .the contract was.

The testimony of Mr. Burnsdale, a witness for defendant, shows that he was present some time prior to August 23, 1905, during a conversation between Mr. Ayres and defendant, wherein Mr. Ayres said to defendant, “the reason you have confidence in the future of Guthrie is that you own property, or have property to sell,” and to -which defendant replied, “I don’t own a foot of property in Guthrie,” or words to that effect. Several character witnesses also testified to the good character of the defendant during the 19 years he had lived in Guthrie.

While it is a rule approved by this court that, where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and, ordinarily, the verdict approved b3r the trial court will be allowed to stand, a ease of this character, however, is exceptional. We have carefully examined and fully considered all of the testimony, as shown by the record, and we are of opinion that the evidence is not sufficient to sustain the verdict. In order to justify a conviction upon a trial of an indictment for false pretenses, it must appear that the prosecutor parted with his money by reason of some of the pretenses set forth in the indictment, or, if not solely by reason of such pretenses, that they at least materially influenced his action. In the absence of evidence that the prosecutor relied upon the pretenses charged, the essential averment in such an indictment (that the defendant obtained the money bjr reason thereof) would not be supported; and, while it is not - necessary that this fact should be shown by direct proof, it is competent to establish it by direct declarations of the prosecutor, and, in the absence of direct proof, it may be inferred from the facts -and circumstances proved. Under our statute, -it is necessary, before the defendant can be convicted, where ,the false pretense was expressed in language alone, that it be proven by the testimony of at least two witnesses, or of one witness and corroborating circumstances. In this case the corroborating witness was not present when the transaction was consummated, and there arc no corroborating circumstances. When the defendant and Ayres were with the witness Eeed, the matter of a loan had never been mentioned, and, while the law may impute to the person making a false pretense a design from the beginning to consummate the result,- we believe that the declarations testified to were not, under .the circumstances in which they were made, false pretenses within the meaning of the statute. The representation must be not only false, but fraudulent. Under the testimony of the witness Burnsdale, Ayres could not be deceived by the alleged pretenses. The commission of the crime sought to be charged in the indictment was not.otherwise proven than as above stated. Let us suppose the representations were made as the testimony for the prosecution shows, yet there is nothing to show a fraudulent intent, or that Ayres was induced thereby to make the loan. The entire transaction was had within a few.blocks of the court-house, where a reference to the public records would have shown the title to the lots in question. Under all the facts in the case, the only reasonable inference is that the prosecutor was trying to get out of what he considered a bad bargain.

Mr. Wharton (Wharton’s Crim. Law. § 1134) says, quoting the remarks of Justice Rogers of the Supreme Court of Pennsylvania :

“The act is intended to punisn a criminal offense, not to be used as a means of collecting debts, however just; and to suffer it to be perverted for that purpose will necessarily lead to great injustice and oppression. We are not without reason for believing that it has been already used as an instrument to wring money from the sympathy and fear of friends, as well as a means of extortion from the timid on pretended demands.”

It is not the policy of the law to punish criminally mere private wrongs, and the statute could not regard naked- lies as false pretenses. It requires some artifice, some descriptive contrivance which will be likely to mislead a person or throw him off his guard. He may be weak and confiding. His very imbecility and credulity should receive all practical protection, but it would be inexpedient and unwise to regard every private fraud as a legal crime. It would be better for society to leave them to civil remedies.

Under the English statute (St. 22 & 23 Viet. c. 1?; see, also, St. 30 & 31 Viet. c. 35), “no indictment for obtaining money or other property by false pretenses is to be presented or found by the grand jury unless the party has been committed by a magistrate.” This was a safeguard against prosecutions of this character. The defendant in this case was indicted without a preliminary complaint or examination, and. this we believe should also be considered. As applicable here, we will quote a part of the language of Chancellor Walworth, in People, v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530:

“The construction adopted in this ease is, I am persuaded, not only an incorrect, but a mischievous, construction of the statute — a construction which, if strictly maintained, would overflow our courts with criminal prosecutions, and our jails and penitentiaries with convicts. The whole Penal .Code, beside, would not be half so burdensome to execute, or half so fruitful of convictions. Most of the common dealings of life might give birth to complaints before grand juries, and every exchange of property, from a ship’s cargo to a barrel of flour, and even less, might afford .occasion for a public prosecution. The principle that has been .advanced in the opinion we are reviewing is .that ‘where falsehood has a material effect to induce a person to part with his property, the offense has been committed.’ Apply this rule not only to the great exchanges of property, but to the innumerable and comparatively insignificant dealings of men — to every swap of horses — in fine, to every transaction by which property is transferred, a note given, or money paid — and no man could count the cases it would reach. Merchants and others in the habit of giving credits, of incurring great risks of the chance of great profits, might at first be gratified with a rule that enabled them to enforce collections by the terrors of a criminal prosecution; but when even-handed justice commands the poisoned chalice to their own lips, and they shall find themselves arraigned at the bar of criminal justice for every misrepresentation of the cost, quality, sal-ableness, or value of every article they had sold, they too will be ready to exclaim: "Tis rigor, and not law.’
“It can be said, I know, there will be no difficulty if men are honest and tell the truth. All will admit the obligations of truth and honesty — all have admitted them from the beginning of time —but how feeble have human laws proved in .their efforts to enforce them. Does it follow, if men are not honest and will not tell the truth, they are to be arraigned and tried and convicted as felons? What scheme of criminal jurisprudence could carry out ¡this principle? What prisons could contain the convicts? We have it from the highest authority that by nature ‘all men are liars,’ and a master judge of the human character has said that ‘to be honest as the world goes, is .to be one man picked out of ten thousand.’ To punish a crime then, what the multitude of offenders make a custom is an attempt to.what we can never hope to execute. It is the remark of a profound philosopher that: ‘The operation of the wisest laws is imperfect and precarious. They seldom inspire virtue. They cannot always restrain vice. Their power is insufficient to prohibit all that they condemn, nor can they always punish the actions which they prohibit.’ Though the laws will not justify, yet they must recognize the frailties and imperfections of human nature, and they do deal with men as being subject to propensities and passions which .they may aid to restrain, but which it is impossible to extirpate. How inconsistent would it be,, when the law will not receive a man’s oath, if he has sixpence at stake upon it, that it should send him to the state’s prison for an untrue answer to an inquiry into his pecuniary affairs, which he may have the strongest motive for concealing. And how disturbed and uncomfortable would be the condition of a community like ours where traffic and credit are infinitely ramified and unceasingly active, if every person' dissatisfied. with a bargain or disappointed by a misplaced confidence, in the responsibility or punctuality of another, shall be quickened, by the prospect of redress or revenge, to recollect some untrue representation made in the course of the transaction. Stimulated by the hope of rescinding a bad bargain or of securing a doubtful debt, or irritated by the unexpected loss of what he had supposed! a good one, how natural it is that he should persuade himself that ‘falsehood had a material effect to induce him to part with his property,’ and, prompted by an opinion which interest or irritation had created, first to threaten a criminal prosecution, and afterwards, if the terror of it proved unavailing, to sustain it by testimony always colored, and sometimes wholly composed by his passion. It is dangerous to give one man such power over the reputation and personal liberty of another. If possessed, it would be often abused, and it is inevitable that perjuries would be multiplied, and injustice and rank. oppression promoted.
“I cannot concede or conceive that a construction is sound, or fitted to advance the general welfare, which proposes to protect property from loss by impositions which the owners can easily guard against and exposes reputation and liberty to invasions which no prudence or integrity may always repel. Besides,, it is an Utopian idea that the sanctions of criminal justice can be made co-extensive with moral delinquencies. However agreeable to our sentiments of natural justice it might be to punish every immoral act, it would be Quixotic to attempt it. No community ever assumed the obligation of protecting by penal laws every member of it from the consequences of his own credulity, imprudence, or folly; and, if any one should, it.would be following ‘false images of good/ that could make no promise perfect. It is impossible for the public to sustain the burden of redressing every injury or loss which individual credulity or cupidity may bring upon itself. The most it can do, and what by the statute under consideration it proposes to do, is to protect individuals from these ingeniously contrived frauds and unusual artifices against which common sagacity and an ordinary experience of mankind will not afford a sufficient guard. Beyond this men must trust to their own prudence and caution, with such aids and redress as may be obtained from the civil tribunals.”

In this case, we are of opinion that the evidence is wholly insufficient to establish a fraudulent intent, and the testimony, as shown by the record, is not sufficient, within the meaning of the statute, to support a conviction for the crime of obtaining money by false pretenses. Our conclusion is fortified by the fact that defendant has resided in this city for 20 years, in good repute, as shown by the record.

Fox the reasons heretofore stated, the judgment is reversed and remanded, with directions to the court below to dismiss the case.

FURMAN, Presiding Judge, and BAKER, Judge, concur.


author: BAKER, Judge,

text:
    Monroe Johnson v. United States.
    No. 647,
    Ind. T.
    Opinion Filed February 4, 1909.
    (99 Pac. 1022.)
    1. LARCENY — Evidence—Title to Property — Instructions. Where the defense in a larceny case offers proof to show that the accused honestly believed, at the time of taking of the property-alleged to be stolen, that it was his property, it is error for the court to refuse to instruct the jury when requested by the accused that-: ■ “If the property mentioned in the indictment was the property of the defendant, you will acquit him; or, if you 'have a reasonable doubt as to whether it was defendant’s property or not, you will acquit him.” It is likewise error in such a case for the court to refuse to instruct the jury when requested by the accused as follows: “If the property mentioned in the indictment was the property of the party named in the indictment at the time of the taking by the defendant, yet if the defendant believed that said property was his, you will acquit him; or, if yod have a reasonable doubt as to whether he thought the property was his when he took it, you will acquit him.”
    2. SAME — Instructions—Burden of Proof. In a larceny case, where the defense is made upon the theory that the defendant honestly believed he was taking his property when he took the property alleged to have been stolen, it is error for the court to instruct the jury as follows: “The jury are further instructed that, although they may believe from the evidence, beyond a reasonable doubt, that the defendant took and drove away the animal in question, as charged in the indictment, still, if they further believe from the evidence, and are satisfied from the testimony, that the defendant took the property under a claim of title by him -honestly entertained (it must be honestly), then he is not guilty of larceny.”
    3. CONDUCT OF COUNSEL — Misconduct of Prosecuting Attorney —Reversal. The judgment of the court below will not be reversed when the error complained of is (except in capital offenses) founded upon the improper conduct of the prosecuting attorney, unless the record shows that the accused not only objected to the statements and arguments at the time they were made, but moved the court to withdraw them from t'he jury and admonish the jury against considering them, and the record shows the overruling of such motion.
    (Syllabus by the Court.)

      Error from the United Btates Court for the Western District of the Indian Territory; Louis Sulzbacher, Judge.

    Monroe Johnson was convicted of larceny, and brings error.
    Reversed and remanded.
    The accused in this case was indicted during the December, 1904, term of the United States Court for the Western District of Indian Territory sitting at Wagoner, on the charge of grand larceny and receiving stolen property, and on the-7th day of March, 1905, the case was tried, and resulted in a verdict of guilty of grand larceny, and a sentence to the United States penitentiary at Ft. Leavenworth, Kan., for a period of three years, and to pay a fine of $50. An appeal was duly prosecuted to the United States Court of Appeals for the Indian Territory, and this case was pending in that court when the state of Oklahoma was admitted into the Union. Under the provisions of the Enabling Act and the Constitution of this state this case was duly transferred to the Supreme Court. Upon the creation of this court the Supreme Court duly transferred the case to this court. Objections and exceptions were duly taken and properly saved in the record by the accused in the court below in respect to all the errors herein complained of. A motion for a new trial was made in due time and overruled, to which ruling the accused duly objected and excepted, and now prosecutes error in this court to reverse the judgment of the court below.

      Chas. G. Watts, De Boos Bailey, and Thomas H. Owen, for appellant.—
    On question of court’s duty to instruct jury to assess the punishment: Watkins v. U. 8. (Ind. T.) 41 S. W. 1045-; Mansfield’s Dig. Laws of Ark., §§ 2219, 2282, 22'83, 2308.
    On question of proper 'instruction relative to accused’s claim of ownership to property alleged stolen: Blashfield’s Instructions .to Juries, vol. 2, § 1768; Lawrence v. State, 20 Tex. App. 536.
    On question of improper conduct of prosecuting attorney: Parker v. State, 67 S. W. 121; Murmiti v. State, 67 S. W. 508; Enc. PI. & Pr., vol. 2, p. 727.

      Charles West, Atty. Gen., and W. C. Beeves, Asst. Atty. Gen., for the United States.
   BAKER, Judge,

(after stating the facts as above). The petition in error of the accused alleges that there is manifest error in the action, rulings, and opinions of the court below, and makes the following specifications:

(1) The court erred in not granting appellant a new trial.

■(2) The court erred in rendering judgment on the verdict, of the jury.

(3) The court erred in rendering judgment on the verdict, the said verdict being a general one.

(4) The court erred in not instructing the jury, at the request of appellant, as follows:

“You are instructed that before you will be authorized to find the defendant guilty, you must believe that the property mentioned in the indictment was the property of the party named in the indictment, and that the defendant feloniously took the same.”

(5) The court erred in not instructing the jury, at the request of appellant, as follows:

“If the property mentioned in the indictment was the property of the defendant, you will acquit him; or, if you have reasonable doubt as to whether it was defendant’s property or not, you will acquit him.”

(6) The court erred in not instructing the jury, at the request of appellant, as follows:

“If the property mentioned in the indictment was the property of the party named in the indictment at the time of the taking by the defendant, yet, if the defendant believed that said property was his, you will acquit ; or, if you have a reasonable doubt as to whether he thought the property was his when he took it you will acquit him.”

(7) The court erred in not stopping the attorney for the government at the request of .appellant, who, in closing the case, used the following language:

“You can’t afford to turn these defendants loose on their own testimony. This case reminds me of a case I tried at Eufaula. To illustrate, last week at Eufaula I tried a case in which a negro was charged with stealing cattle. That negro used to live at Wagoner, and was identified there by persons who lived in Wagoner. That negro took the stand and testified that he was never in Wagoner in his life, and told such a straightforward and impressive story that he almcfet convinced his honor on the bench that he was not guilty, and in fact he had me doubting as to whether he was guilty, until I got hold of him on cross-examination, and there were some things cropped out that convinced me that he was not telling the truth, and now we can prove by a dozen negroes in Wagoner that he did at that time live near Wagoner, and that he is the identical party that he was identified to be in Eufaula. If you turn this defendant loose in the face of this evidence, I want you to come to me and this court with a petition to dismiss every case of larceny on this docket.”

(8) The court erred in not allowing the jury to assess the punishment of appellant.

(9) The court erred in refusing appellant’s request that the jury fix his punishment in the event of his conviction.

The court instructed the jury in this case as follows:

“The jury are further instructed that, although they may believe from the evidence, beyond a reasonable doubt, that the defendant took and drove away the animal in question, as charged in .the indictment, still, if they further believe from the evidence, and are satisfied from the testimony that the defendant took the property under a claim of title by him honestly entertained (it must be honestly), then he is not guilty of larceny.”

The effect of this charge is practically to shift the burden of proof from the prosecution to the accused; for, the jury to be instructed that if they believe and are satisfied from the evidence in a criminal case means that they are satisfied beyond a reasonable doubt. Whereas, if the evidence introduced is sufficient to create,in the minds of the jury a reasonable doubt as to whether the property forming the subject of the larceny was the property of the defendant or not, then upon such evidence it was the duty of the court to acquit. The court, therefore, erred in giving-said charge, and the rights of the accused were thereby prejudiced.

It was, for the same reason, error for -the court to refuse to give the following instructions requested by the accused:

“If .the property mentioned in the indictment was the property of the defendant, you will acquit him; or if you have a reasonable doubt as to whether it was defendant’s property or not, you will acquit him.”
“If the property mentioned in .the indictment was the property of the party named in the indictment at the time of the taking by. the defendant, yet if the defendant believed that said property was his, you will acquit him; or, if you have a reasonable doubt as to whether he thought the-property was his when he took it, you will acquit him.”

In the case of William Lawrence v. State, 20 Tex. App. 536, the court held:

"One of the instructions given by the court to the jury was as follows: ‘The jury are further instructed that if they believe from the evidence that the defendant took the hogs charged in the indictment, but that he so took them with an honest belief, although he may have been mistaken in such belief, that he had ¡the right or authority so to do, or if the evidence on this point is such as to raise in your minds a reasonable doubt as to whether the defendant did believe he had the right to take such hogs, then in such case you will give him the benefit of such doubt and acquit him.’ ”

The rule laid down in the above case is fully approved by this court, and we feel that citation of further authorities on this subject is unnecessary.

The accused complains of the action of the court below in not instructing the jury to assess the punishment of the accused in the event they found a verdict of guilty; but that on the contrary, the court instructed the jury that it was the duty of the court below to fix and prescribe the punishment in case of such a verdict. Chapter 46 of Mansfield’s Digest being in full force in the Indian Territory at the time of the trial of this case in the court below, the provisions of said chapter should have governed: the court in the trial and disposition of the case at bar, Mansf. Dig. Ark. § 2282 (Ind. T. Ann. St. 1899, § 1625), found in said chapter, reads as- follows:

‘‘‘The jury may render either a general or a special verdict.7’

Section 2283 (section 1626) reads as follows: '

“A general verdict is either ‘guilt}'’ or ‘hot guilty’; if guilty, the jury affixing the punishment, if the amount thereof is not determined by law.”

Section 2308 (section 1651) of the same chapter reads as follows:

"When a jury find a verdict of guilty and fail to agree on the punishment to be inflicted, or do. not declare such punishment in their verdict, or if they assess a punishment not authorized by law and in all cases of judgment on confession, the court shall assess and declare the punishment and render judgment accordingly/’

In the case at bar the verdict rendered was a general one. It was therefore the duty of the jury to assess the punishment in accordance with tire provisions of the chapter above referred to. and the court erred in refusing to instruct the jury as requested by the accused. The court should have instructed the jury that if they agreed upon a verdict of guilty, to assess the punishment of the accused; and the court below committed reversible error in not so instructing the jury.

The other specification of error relied on by the accused grows out of the alleged improper conduct of the prosecuting attorney. The record discloses that counsel for the accused objected to the statements made in the closing argument of the prosecuting attorney in this case, but does not show that the accused asked the court to withdraw said statements from the jury and instruct them to disregard said statements. This court has held, in the case of Buck v. Territory of Oklahoma, 1 Okla. Cr. 517, 98 Pac. 1017, and in the case of Bilton v. Territory of Oklahoma, 1 Okla. Cr. 566, 99 Pac. 163, that it is the duty of the trial court to confine counsel strictly within the facts of the case; and, if counsel persistently go outside of the record in their argument or statements to the jury, then the court should punish them, and if they should obtain their verdict by means of statements outside of the record, then the court should set the verdict aside. When the prosecuting attorney goes outside of the record and makes improper remarks calculated to prejudice the rights of the accused, it is the duty of the counsel of the accused to promptly interpose an objection to such remarks, and move the court to withdraw them from the consideration of the jury, and instruct the jury not to consider them. In the absence of the record showing a motion by the accused to withdraw from the consideration of the jury the remarks complained of and the overruling of said motion, in cases other than capital offenses, thu court will not reverse the judgment below on account of such remarks. This court is mind ful of the fact that in some jurisdictions it is held that where unwarranted and prejudicial comments aie made by. the prosecuting attorney, the proceedings become so fatally infected that a withdrawal of the objectionable remarks and instructions by the court to the jury to disregard them cannot he held to remove the jury which would necessarily follow their pernicious and unwarranted effect; but, after a careful 'consideration of the authorities, we think the weight fairly sustains the proposition, that ordinarily the court can repair the injury by excluding such remarks from the consideration of the jury, and by promptly admonishing them against such conduct. This court desires to be understood in the strongest terms as condemning such conduct on the part of the prosecuting attorney as is shown by the record in the case at bar. There was absolutely no justification • for the use of such remarks, and they are clearly outside of the record, and the court below having permitted such remarks on the grounds that they were illustrative of tue testimony in the case discloses the fact that the honorable court below either had an erroneous conception of the law, or was unmindful of the legal rights of the accused; and, if the record in the case at bar would have shown a motion’by the accused to withdraw such statements from the jury, and to properly admonish them against the conduct of the prosecution, and that such motion was overruled, tin's court would not hesitate to set aside the verdict on account of such misconduct, alone. . This court fails to see that the duty of the prosecutor in the discharge of the duties of his cilice, the protection of the interests of society, and the proper regard for the administration of public justice, excuses, much less requires, such conduct as is disclosed in the record m this case.

Adhering to the rule of this court and the statutes of this state that a case shall not be revoked upon technicalities merely, ive feel that the errors complained of in this ease are not technical, but substantial, and clearly convinces this court that the accused did not have a fair and impartial trial, and that his substantial rights were not properly protected by the court.

For the errors pointed out, this case is reversed and remanded.

FURMAN PRESIDING Judge, and DOYLE, Judge, concur.