text:
    CLEVE SWEET v. STATE.
    No. A-9711.
    Nov. 27, 1940.
    (107 P. 2d 817.)

      M. O. Counts and Eobert J. Bell, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.
   JONES, J.

The defendant, Cleve ¡Sweet, was charged by information in the district court of Pittsburg county, Olda., on November 27, 1934, with the crime of murder, was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the State Penitentiary, and has appealed to* this court.

This case has been called for trial three times. The first trial, which was begun October 11, 1935, resulted in a hung jury. The second time this case was called for trial, March 9, 1937, a mistrial was declared, and the jury discharged because one Gene Sweet, a brother of the defendant and a witness for the defendant, was charged with the murder of one Jim Davis, another witness for defendant, on the evening of October IT, 1935. This case came on for trial the third time on February 13, 1939.

For a reversal of tbe judgment and sentence imposed on the defendant as a result of his conviction on this third trial, the defendant has made many assignments of error.

The defendant shot and killed one Bill Akins on November 2,1934, and has interposed a plea of self-defense. No question as to the sufficiency of the evidence to support the conviction is raised, and it would only unnecessarily lengthen this opinion to detail the evidence.

The first assignment of error is the complaint of the defendant that the trial judge erred in overruling his application for a change of venue.

The defendant contended that he could not receive a fair and impartial trial in Pittsburg county, and that the residents of that county are prejudiced against him for the reason that “while this case was pending, and before it was finally disposed of, the defendant’s brother was charged with the crime of murder, and was tried and convicted of manslaughter in the second degree. Also, a nephew by the name of Steve Alexander killed a man by the name of Estol Barnes, and was charged with the crime of murder, tried and convicted of manslaughter in the first degree, and sentenced to four years in the State Penitentiary. These incidents all occurred and the cases were all tried in Pittsburg county, Okla., between the date the defendant was charged with killing Bill Akins and the date of his trial.” That newspapers in Pittsburg county published long articles relating to each of said cases; and that the said cases attracted unusual attention and notice, and had created a strong bias and prejudice against the defendant, to such an extent that it was impossible for him to have a fair and impartial trial in Pittsburg county.

In support of his application for change of venue, defendant filed 235 affidavits. The state filed some 100 counter-affidavits in answer to the defendant’s showing, and, in addition, called and examined several of defendant’s affiants.

The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okla. Cr. 411, 12 P. 2d 555; Goss v. State, 24 Okla. Cr. 383, 218 P. 339; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883.

On a motion for a change of venue, if upon the examination of the affidavits and co.unter-affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then and under those conditions it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this court. Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Wright v. State, 12 Okla. Cr. 443, 158 P. 290; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Sayers v. State, 10 Okla. Cr. 233, 135 P. 1073; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A., N. S., 701; Watson v. State, 9 Okla. Cr. 1, 130 P. 816.

By an abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Black v. State, 3 Okla. Cr. 547, 107 P. 524; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164.

It is not an abuse of discretion to deny a change of venue where the subsequent proceedings show that there was no difficulty in securing a fair and impartial trial. Huffman v. State, 28 Okla. Cr. 296, 230 P. 272; Dodson v. State, 33 Okla. Cr. 85, 242 P. 578.

The mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury. Johnson v. State, 35 Okla. Cr. 212, 249 P. 971; Newton v. State, 56 Okla. Cr. 391, 40 P. 2d 688.

The court was very lenient with the attorneys for the defendant in the extent to which he allowed them to go into the juror’s qualifications on their voir dire examination; and in this respect, we call attention to the fact that the defendant only used four of his peremptory challenges.

Under the showing made, and particularly in view of the facts as developed upon the tidal and the verdict which was rendered, which will be hereinafter discussed, it does not appear to> this court that the trial judge abused his discretion in denying the application for a change of venue.

The defendant alleges that error was committed by the court in stating at the beginning of the trial, “All witnesses in the case of the State of Oklahoma versus Gene Sweet will now be sworn”; error of the court in giving instruction 21, which, when read to1 the jury, stated that certain evidence had been given relative to the good reputation of the defendant, thereby putting defendant’s reputation at issue and calling tbe jury’s attention to tbe fact that tbe defendant bad failed to' offer evidence of bis good reputation; misconduct of counsel for prosecution in jumping to tbeir feet during tbe reading of instruction 21 and stating tbe court was in error, that there was no evidence of tbe good reputation of tbe defendant.

Tbe case-made does not show tbis. Tbe only place these allegations appear are in the affidavit made by tbe defendant in support of his petition for a new trial and in tbe brief of defendant.

Tbis court held in Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, 966, Ann. Cas. 1912B, 766:

“A matter assigned as error in tbe motion for a new trial and in the petition in error, but not shown by tbe case-made to be true, cannot be considered in tbe appellate court. * * *
“The trial judge’s certificate to tbe case-made attests tbe truthfulness and correctness of everything recited therein as having in fact taken place; but it does not attest tbe truthfulness of affidavits filed in support of or in opposition to matters alleged in tbe motion for a new trial.”

Instruction No. 21 appears in tbe case-made, but there is nothing therein which in any way sustains the statement as contended for by tbe defendant.

Tbe contention is made that counsel for the prosecution in tbeir argument prejudiced tbe defendant by continually referring to him as Gene .Sweet. Tbis assignment, again, is not sustained by tbe record. The argument Avas not incorporated in tbe case-made. It is settled by numerous decisions of tbis court that improper argument must be objected to and a motion to strike from tbe consideration of tbe jury made. It is not sufficient to incorporate it in a motion for a new trial. Saunders v. State, supra; Coulson v. State, 48 Okla. Cr. 206, 291 P. 152.

The defendant assigns as error an alleged prejudicial statement of the assistant county attorney made in bis argument to' the jury. Tbe case-made contains the following excerpt:

“By Mr. Bell: Comes now the defendant and excepts to the remarks of the assistant county attorney that there ivas evidence in this case by the witness Dollins that Cleve Sweet had killed his hogs. We object to it on the grounds that there is no- substantive proof of this and because of the fact that the testimony of Mr. Dollins, or either of them, was not to that effect; I have the questions I asked him here. By The Court: The court will instruct you that there is no evidence before you, no competent evidence before you as to> who killed the hogs.”

The defendant further assigns as error an alleged prejudicial statement made by the county attorney in his closing argument. The excerpt, as it appears in the case-made, is as follows:

“By Mr. Bell: At this time the defendant objects and excepts to' the remarks of Mr. Paul Gotcher, county attorney, in the closing argument .to the jury, wherein he has just stated that ‘The eyes of the people of Pittsburg county are upon you today.’ By The Court: Those statements are frequently made to the jury to awaken their responsibility both ways, as to the rights of the state and as to the rights of the defendant. Objection overruled. By Mr. Bell: We except.”

Ordinarily, error cannot be predicated on mere unexplained excerpts from remarks of counsel to the jury, but enough must appear to advise the appellate court of what preceded alleged objectionable statements and their meaning to be deduced from the context, and whether they were invited or provoked by opposing counsel’s remarks. Gorum v. State, 67 Okla. Cr. 75, 92 P. 2d 1086.

The' court has repeatedly held that where the county attorney in his argument to the jury makes remarks not warranted by the testimony and upon objection withdraws them or upon objection sustained by the court and the jury admonished not to consider them, the objectionable remarks do not constitute reversible error, if under the circumstances the defendant is not injured. Dixon v. State, 56 Okla. Cr. 454, 42 P. 2d 286; Gunnells v. State, 7 Okla. Cr. 98, 122 P. 264; Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Gardner v. State, 5 Okla. Cr. 531, 115 P. 607.

This court stated in Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532, 533:

“A prosecuting attorney must confine his argument to a fair discussion of the issues in the case and the legitimate argument on the part of the defendant, and, where a prosecuting attorney in his closing argument to the jury went outside of the record and appealed to the passions and prejudices of the jury, the strength of the testimony against the defendant will be considered, and, if the improper argument may have determined the verdict, a neAv trial will be granted.”

The right to argument contemplates a liberal freedom of speech and a wide range of discussion and illustration. Counsel have the right to fully discuss the evidence from their standpoint. It is only when argument is grossly improper and unwarranted upon a point which may have affected the defendant’s rights that a reversal can be based on improper argument. Murray v. State, 24 Okla. Cr. 113, 217 P. 891; Carmichael v. State, 44 Okla. Cr. 160, 279 P. 515; Wisdom v. State, 56 Okla. Cr. 140, 36 P. 2d 514; Wallace v. State, 57 Okla. Cr. 50, 45 P. 2d 164.

From the excerpts before us, and in view of the cases cited hereinabove and a consideration of the verdict rendered, we are of the opinion that the rights of the defendant were not prejudiced by tbe alleged improper remarks of counsel for the prosecution.

Tbe defendant contends that tbe county attorney throughout the trial persistently asked witnesses concerning and inferred that the defendant was guilty of the shooting of certain hogs, over the repeated ruling of the court that said questions were objectionable.

A cause will be reversed, where the prosecuting attorney repeatedly, over objections, asks prejudicial questions, and succeeds in getting such testimony before the jury. Bingham v. State, 44 Okla. Cr. 258, 280 P. 636. We have carefully read this record and do not think the county attorney in the examination of any of the witnesses was guilty of any misconduct prejudicial to the defendant.

The defendant contends that the court erred in excluding the testimony of the defendant’s witnesses Ed Ratliff, Pres Newman, and Jack Lance. These three witnesses were introduced along with a number of other witnesses who- testified to the general reputation of the deceased. They were of the opinion that the deceased was an overbearing man, but did not know or were unwilling to state what his general reputation was in the neighborhood as to' being a violent, quarrelsome, and dangerous man. In a case of this kind, general reputation of the deceased is admissible; and the court did admit evidence of the deceased’s general reputation; but where the witnesses were unable to- state his general reputation, their testimony should not be admitted.

The defendant contends further that the court erred in excluding the testimony of the defendant’s witnesses Clyde Watts, Claude Dennis, and Bill Alexander. The testimony of these witnesses tended to show that the deceased was of a disagreeable temperament, but showed no specific instances of threats to the defendant or a third person or any unprovoked violence.

Where in a homicide case self-defense is pleaded, specific acts of violence on the part of the deceased towards others than the defendant may, if known to the defendant prior to the homicide, be shown in evidence. Mathews v. State, 16 Okla. Cr. 466, 184 P. 468; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267.

The knowledge of the defendant, derived from such personal observation, as well as otherwise, of the violent temper of the deceased and his liability to attack persons without cause, is a most important circumstance in determining from the standpoint of the accused the reasonableness of the danger apprehended by him, and from which the defendant might estimate the conduct of the deceased, the character of the attack made upon him, and what he might expect from his assailant as well as that which he might at the moment deem necessary to guard himself against. Sneed v. Territory of Oklahoma, 16 Okla. Cr. 641, 86 P. 70, 8 Ann. Cas. 354.

This court stated in Mulkey v. State, supra:

“As a. general rule, the evidence of the character of the deceased must be confined to his general reputation, and evidence of particular acts of violence is inadmissible unless they were directly connected with that involved in the homicide. * * * But, under the facts which the evidence here tends to prove, these prior assaults and acts of violence, being known to the defendant, were important circumstances in determining- from the standpoint of the defendant the reasonableness of the danger apprehended by him * *

Since the testimony offered by these witnesses tended to prove neither threats to the defendant nor acts of unprovoked violence toward the defendant or others, it was clearly inadmissible. The court did admit considerable testimony along this line, which did include all of the acts of unprovoked violence committed by the deceased which were shown to have been within the personal knowledge of the defendant.

Defendant assigns as error of the court the permitting of witnesses Gus Mitchell and W. S. Sweeden to testify over the objection of defendant, because their postoffice addresses were improperly stated upon the notice of witnesses served upon the defendant.

Gus Mitchell’s address was given as Hartshorne, when in fact he lived at Higgins., eight miles from Hartshorne. W. S. Sweeden’s address was given as Holdenville, when his correct address was Holdenville, Route 3. The defendant first objected to the inaccuracy of the addresses when the witnesses were called by the state to testify.

The purpose in furnishing, the defendant with the names and addresses of the witnesses to be used by the state is to apprise him whom the witnesses are and where they may be found. If the defendant had not been able to-locate the witnesses because of the incorrect addresses, he should have made his troubles known to the court before announcing ready for trial. But he did not do this. He waived any right he might have had to require the state to furnish more definite information as to the post-office addresses of these witnesses; and the court properly overruled his objection. Galbert v. State, 12 Okla. Cr. 571, 160 P. 332. See, also, State v. Frisbee, 6 Okla. Cr. 406, 127 P. 1091.

No error could be predicated upon the testimony of these two witnesses for the further reason that the witnesses had testified in the former trial, and the defendant was acquainted with their testimony and knew from the evidence taken before in the former trial the residences of these witnesses.

It is alleged the court committed error in permitting the witness Gordy Orr to testify in chief for the state, when said witness’ name and address was not served upon the defendant or his counsel.

The witness Gordy Orr was properly a rebuttal witness. The attorneys for the defendant did not reserve their opening statement to the jury, but made the same immediately after the opening statement of the county attorney. In that statement they outlined the facts to be shown by the defendant. The witness Orr' was sick; and his condition was such that the court, after a hearing, determined that his testimony should be taken rather than risk the health of the witness by forcing him to wait until the defendant had introduced his evidence. In view of the testimony of this witness and the record as later developed, there was nothing prejudicial by reason of this action of the court. Orr’s testimony concerned an immaterial matter, and probably had no effect at all upon the verdict.

In Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026, this court held:

“The law does not require that the names of witnesses used in rebuttal shall be indorsed on an indictment or information.”

In Tobin v. State, 49 Okla. Cr. 265, 293 P. 575, 579, it is stated:

“* * * The question of admitting testimony that would be proper in chief to be used in rebuttal is within the sound discretion of the trial judge, and, unless there has been an abuse of that discretion, the admission of the testimony will not be sufficient to warrant a reversal of the case.”

This court said in Smith v. State, 36 Okla. Cr. 9, 251 P. 507:

“Evidence out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.”

In Tingley v. State, 16 Okla. Cr. 639, 184 P. 599, it was held:

“It is discretionary with the trial court, in furtherance of justice, to permit evidence in rebuttal which would have been competent evidence in chief. * * *
“This court will not reverse a judgment of conviction on the ground of the improper admission of evidence unless it appears, after an examination of the entire record, that in the opinion of the court the error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

The defendant contended there was error of the court in admitting the reading of the transcript of the testimony of Clifford Sweet over the objections of the defendant.

A subpoena was served on Clifford ¡Sweet. He answered and was in the county, but not present in court. The chief of police testified that he went tO' the home of Clifford Sweet and that in his opinion he was sick. The state was allowed to read a transcript of testimony given by the witness at a previous trial of this case. The defendant objected on the ground of an invasion of constitutional rights, the' transcript not having been filed for 24 hours as a deposition, and improper showing that witness was unable to attend court.

In Davis v. State, 20 Okla. Cr. 203, 201 P. 1001, this court held :

“Where the accused at a former trial or at a preliminary hearing once enjoyed his right to be confronted by a witness against him and had the privilege of cross-examining the witness, if at a subsequent trial, involving the same issues, it satisfactorily appears that the witness has died, become insane, or has permanently left the state without collusion or procurement of either party and that his presence with due diligence cannot be had, or where the witness is sick and unable to testify, or his whereabouts cannot with due diligence be ascertained, a transcript of the testimony of such witness may be introduced as the evidence of such absent witness.”

See, also, Alexander v. State, 51 Okla. Cr. 1, 299 P. 237; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A., N. S., 1121.

Diligent effort made in good faith to produce the witness at the trial should be shown. Golden v. State, 23 Okla. Cr. 243, 214 P. 946; Scott v. State, 43 Okla. Cr. 232, 278 P. 393.

It is not necessary that the transcript should be filed in the trial court. Baldock v. State, 16 Okla. Cr. 203, 182 P. 265.

The testimony of the chief of police, which is undisputed, was a sufficient showing that the witness Clifford Sweet was unable to attend court. The transcript, which was introduced, was of the evidence of the witness taken at the former trial, at which time the attorneys for the defendant fully cross-examined him.

The defendant contends the court erred in sustaining an objection to a question asked the witness J. W. Green as to whether he had personal knowledge of the fact that the deceased was in the habit of carrying a pistol. The court later, however, in the examination of the defendant, allowed him to testify at length concerning this matter. This matter, then, was properly before the jury; and no prejudice could have resulted by the exclusion of this evidence of J. W. Green.

In this case we have given careful attention to all of the assignments of error. The deceased was killed by the defendant at a time when he was several feet from the defendant and unarmed. The defendant admitted he could see both of the hands of the deceased and that he had nothing in them. Under the testimony of the defendant, himself, no> reasonable jury could have done otherwise than convict the defendant of manslaughter in the first degree. Many threats were shown to' have been made by the deceased towards the defendant; and evidence was introduced both pro and con on the question of the bad reputation of the deceased for being of a quarrelsome and violent disposition. Undoubtedly, these factors did and should have influenced the jury in their verdict.

If the verdict had been for murder or an excessive number of years had been assessed for manslaughter in the first degree, this court would have, under the record, modified the judgment; but human life is too precious for a defendant to gO' unscathed where the proof ivas that the deceased met his death under the facts as admitted by the defendant.

The case was hard foug’ht. Some few minor errors have crept into the record concerning the admission or rejection of evidence, but as a whole the trial judge succeeded in confining both the county attorney and the attorneys for the defendant to- the issues upon trial.

Prom an examination of the whole record, we are of the opinion that there are no errors of sufficient importance to- require a reversal of this case.

The judgment of the district court of Pittsburg county is accordingly affirmed.

DOYLE, P. J., and BABEPOOT, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    TOM RAINEY v. STATE.
    No. A-9712.
    Nov. 13, 1940.
    (107 P. 2d 371.)

      R. Place Montgomery, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Tom Rainey, was by information on January 21, 1989, charged in the county court of Kiowa county, Okla., with the unlawful possession of intoxicating liquor; was tried, convicted and sentenced to serve a term of 30 days in the county jail and pay a fine of $50, and has appealed to this court.

The defendant makes many assignments of error which are presented to this court under the following headings :

(1) The court erred in overruling defendant’s demurrer to the evidence, since the element of intent to sell was not proven by the state.

(2) Error in the instructions of the court.

(3) Reversible error committed by the county attorney in his argument to the jury.

In connection with the first assignment, it is contended by the defendant that the proof of the state did not show a possession in excess of one quart of whisky, and that since the proof did not show this, it was mandatory on the state to prove the. unlawful intent with which the possession was had.

The evidence discloses that two officers went to the home of the defendant on January 20, 1989. They had a search warrant. As they came to the front door, Roy Williams, the stepson of the defendant, went out the back door carrying a water bucket. The officers searched the house and found a fruit jar sitting on the kitchen floor, which they both smelled and testified had a strong odor of whisky. One of the officers testified that there was about a spoonful of whisky remaining in the jar. Sitting next to the jar was a funnel which also smelled strongly of whisky and which apparently had been used in transferring whisky from the fruit jar to the two pint bottles of whisky, which were later found. The garbage bucket sitting in the kitchen also bore a strong odor of whisky; and it was the theory of the state that the fruit jar had been emptied into the bottles over the garbage bucket. After searching the house, the officers went outside the house and found the bucket, which the stepson had carried out of the house, sitting by what was called the “separator house.” The bucket was apparently full of oats; and hidden under the oats, the officers found two full pints of whisky. Several empty bottles with whisky labels on them were found in a barrel at the back of the house.

The defendant did not testify, and the only witness offered in his defense was the stepson, who testified that he found the jar of liquor when he went after the cows and brought it to the house and poured it in bottles. That the defendant told him to take the liquor out of the house, as he didn’t want it around there. That he was not hiding the whisky from the officers, but was taking it out to where he could hide it and drink it when he got ready.

The whole argument of the defendant is based upon the erroneous assumption that less than one quart of whisky was found on the premises. For the purpose of considering the demurrer to the evidence which is urged as one of the assignments of error herein, this court must assume the truthfulness of the statements made by the officers. The Legislature has provided that the possession in excess of one quart of intoxicating liquor is prima facie evidence of an intent to violate the law. Section 2626, O. ¡S. 1931, as amended by Session Laws of 1933, ch. 153, p. 339, 37 Okla. St. Ann. § 82.

It is not- for ns tO' say that yon must have any certain quantity in excess of one quart; but, under the statute, if there is any evidence to' show that the defendant has possession of more than one quart of whisky, then such evidence is sufficient to make a prima facie case; and accordingly raises a question of fact for the determination of the jury as to the intent with which the possession is had. Since, under the testimony of the officers, there was a spoonful of whisky in the fruit jar in addition to the quart which was found in the bucket, this would be sufficient to make a prima facie case.

It would be much better if the county attorneys would keep informed of the decisions of this court; and where charges of possession of intoxicating liquor with intent to sell are filed, which are borderline cases, such as the one herein, they should make a showing as to the evidence of the general reputation of the accused’s home as a place where intoxicating liquors are sold, as having a bearing on the criminal intent. This evidence, however, can only be introduced after a proper predicate is laid showing that the accused’s home was a place of public resort. It is apparent from the nature of the evidence in cases that are frequently coming before this court that some county attorneys are confused as to just when evidence of the general reputation of the accused’s home as a place where intoxicating liquors are sold is admissible. We have set forth the rule in several cases. See Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836; Williams v. State, 25 Okla. Cr. 284, 220 P. 667; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869; Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619.

The defendant further contends that the court erred in instructing the jury that the possession in excess of one quart of intoxicating liquor is prima facie evidence of an intent to sell. This instruction was proper, as it clearly submits to the jury for their determination the question of fact as to- whether the defendant had the possession in excess of one quart, and merely instructs them that if they find that the defendant did have possession in excess of one quart, that such possession is prima facie evidence of an intent to violate the law.

Finally, it is contended that the county attorney erred in his concluding remarks to the jury, in which it is contended that he made the following statement : “It was natural for the defendant or the accused person to deny having anything to do with the crime” — for the reason that such statement by the county attorney was a comment on the failure of the defendant to testify.

This statement, if made, was improper, but there is no proper record in the case-made establishing that such statement was made by the county attorney; and in the absence of proof of such statement being made, this court will not consider such an assignment of error.

There are various other assignments of error, but they are all directed to the propositions herein above discussed.

From the foregoing, it will be seen that the judgment of the county court of Kiowa county should be affirmed.

It is so ordered.

DOYLE, P. J., and BAREFOOT, J., concur.


author: JONES, J. BAREFOOT J.

text:
    EFTON HATHCOAT v. STATE.
    No. A-9753.
    Nov. 27, 1940.
    (107 P. 2d 825.)

      Harry G. Davis, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Defendant Efton Hathcoat, J. B. Jackson, and Clyde Rush, Jr., were jointly charged in the district court of Mayes county with the crime of larceny of domestic fowls. The defendant Efton Hathcoat asked for a severance and was tried, convicted, and his punishment assessed at one year in the penitentiary; and he has appealed.

The assignments of error are all directed to the proposition that the evidence introduced by the state is not sufficient to corroborate the testimony of the accomplice, Clyde Rush, Jr., who testified against the defeñdant.

In considering this question, a brief review of the evidence is necessary. We shall first consider the testimony as given by the accomplice. Clyde Rush, Jr., testified that he was 19 years of age and had lived in Pryor all of his life; that he, J. B. Jackson, and the defendant Efton Hath-coat were good friends and had run around together since they were kids. That on Saturday, May 7, 1938, he and J. B. and Efton were at the bookstore in the post office at Pryor; that in the conversation at that time, one of the codefendants asked the witness if he wanted to make some money. They did not tell him right at the time how the money was to be made, but he was to furnish the car. He tried to borrow his father’s car, and he wouldn’t let him have it. He then got his aunt’s car and met the other two boys across the street from the First National Bank. After they started out of Pryor going west, one of the boys said that they were going to get chickens. The car was a 1936 Model Ford VS, blue in color. They turned north about three miles out of Pryor and drove three and three-quarters miles north. It had been raining that day, and the roads were slick and muddy. After they had passed Cohan’s place about half a mile, the road was so slick that the car slid into a ditch. While they were stuck, Mr. Qualls and his family came along in the Qualls’ pick-up. Mr. Qualls and his son got out and helped them for about 30 minutes; and finally they got out of the ditch. They drove up to the section line corner and turned around and started back south. Mr. Qualls’ car was at the Cohan place, and they passed him. When they passed him, he started following them until they got tO' the paved road, where they turned west; and he turned east. They went about a mile west to a well the other side of the Osage schoolhouse, where they stopped and filled the car with water. One of the boys spoke up and said, “Let’s go back to Qualls’ and get the chickens.” They then turned the car around and drove back down the highway east to the section line leading north to Mr. Qualls’. They drove to Qualls’ place, went up to’ the drive on the north side of the road, and turned around; came back and parked in front of the house; then they got out. Efton went to' the barn to see if there was anybody at the barn. Rush got out and put mud on the license plate, and then went to the house and knocked to see if anybody was at home. He went to the well, washed his hands, and then went back to' the car. He waited at the car while J. B. and Efton took three sacks and went after the chickens. They came back with chickens in the sacks. J. B. said that he could drive the car better than the witness, who then got in the back. J. B. and Efton got in the front seat. They went to Claremore. When they got to Seminole street, Efton suggested that since they all three looked dressed up, the produce man would get suspicious, and that it would be better for one of them to get out and let the other two go on to the produce house and sell the chickens. They agreed, and Efton got out. J. B. and the witness went in and sold the chickens. When the witness started out the door, there was Mr. Wilson, the undersheriff. He asked him what he had in the car, and then took him and put him in jail.

About two weeks after the chickens were stolen, the witness went to Tulsa with the defendant, during which trip the defendant said, “Puddle, I am supposed to inherit some money; and if you will take the rap, I will give you §3,000 when you get out.” Another time he threatened to whip the witness if he told on him. The witness stated that he was testifying to the truth; and that he never did steal any chickens before and was never arrested and had. never been in trouble before in his life. He was not promised immunity by the county attorney, who said it was up to the judge and jury to- give him a sentence; but the county attorney did say he would recommend a lighter sentence if he told the truth.

P. F. Qualls, his wife, and his son, Forest Qualls, all testified. Their testimony, in substance, was that they left home on May 7, 1938, about 2 o’clock; that about one-half mile from their house they found the three defendants stuck in the ditch; and that they got out and helped them get their car out. While they were helping the boys, Mr. Qualls asked them where they had been. One of the boys spoke up and said they had been to Cohan’s Lake fishing. During the conversation they were asked if they had had any luck; and another one of the boys said that they had caught some fish, but they did not have much luck. That they were suspicious of the boys’ actions, and thought they were chicken thieves because they had had some chickens stolen the Saturday before, so they stopped at the Cohan place to see if the boys had actually been fishing there. That they learned that the boys had not stopped at Cohan’s Lake. That while they were at Cohan’s, the blue car in which the boys were traveling passed them, going back south; and they started following it and followed it to the pavement. That the boys turned west towards Clare-more; and they turned east and went on to Pryor. That they went to the produce house at Pryor, called the sheriff’s office, and told them about the boys. That Mr. Wilson, the undersheriff, called Olareinore and told them to look out for this car. That Qualls and Mr. Wilson got in the car and went to Claremore. They caught the defendant Clyde Eush, Jr., at the produce house; that the chickens he had just sold belonged to1 the Qualls, and had been stolen from them.

Willard Eose testified that he was drilling Sudan grass in the field north of the Qualls house at the time the chickens were stolen. He was about a quarter of a mile north of the house; and there was nothing between him and the house to obstruct his view. He related that he saw a car with three men in it drive up to the Qualls’ yard gate. It came from the west; it started off after staying there a little while. It then came back and stopped at the gate. One boy went to the house; and he saw another boy coming from the barn. He just saw three persons. He started towards the house and was about 220 yards away when they left: One of the boys stayed in the car while the other two came back, each with a sack in his hands. He was not close enough to identify either of the three boys.

Earl Lee testified that he lived about a mile from the Qualls farm. That he had heard the testimony of the other witnesses. That he saw the blue Ford, described by the witnesses, in which the three boys were traveling, four times that Saturday afternoon. This witness did not know any of the three boys riding, in the automobile, but he saw the car pass his house going north, which fact according to the other testimony would have been just before it was stuck in the mud; he saw it a second time after it had been pushed from the ditch in which it was stuck and had turned around and started south; he saw it a little while later pass his house and turn west towards the Qualls farm. The last time he saw the car, it was coming from the west, which is from the direction of the Qualls farm, and turn south at the corner and pass his house. The first three times the automobile passed his house, the three hoys riding in it were all in the front seat; the last time it passed his house, two were in the front seat and one in the back seat.

For the defendant, the defense was in the nature of an alibi. The defendant took the witness stand and admitted to meeting with the two boys at the post office as related by Rush. He admitted leaving town with the other two boys in the blue Ford automobile, turning off of the paved highway, and driving three and three-fourths miles north on the muddy road, where they got stuck. He admitted that one of the boys told Qualls at the time they were helped from the ditch that they had been at Cohan’s Lake fishing, which he knew at the time the statement was made was untrue. He admitted being in the automobile when it was turned around after being, pushed from the ditch, and driving back to the main highway and to' the well near the Osage schoolhouse. From that point on, there is, however, a decided conflict in the testimony of the defendant and the accomplice, Clyde Rush, Jr.

The defendant testified that Clyde Rush, Jr., proposed at the well that they go back to the Qualls house and get the chickens; and that he stated that he had been in enough trouble and that he was not going; and that he got out of the automobile and started walking home. That he lived about a mile south of the highway at that point. That he met a boy by the name of Ralph Panter and went back to Pryor with him in his car; that Ralph Panter was there in Pryor the day of the trial and had been subpoenaed as a witness in his behalf. (Panter did not testify.) That be did not help steal the Qualls’ chickens, and was not in the Rush car any more from the time that he got out at the well. That he went to Wagoner Saturday night and stayed Sunday and Sunday night and came back on Monday night. That he went to Maizie on Tuesday to stay until his dad could find out for sure that he had been charged with stealing chickens. That he returned from Maizie on Wednesday night and came with his dad to the sheriff’s office on Thursday morning. That he had pleaded guilty to a charge of burglary about two- years before, but had been giren a suspended sentence.

The defendant introduced the evidence of four of his neighbors and his father. One of them, John R. Keel, testified that he was 70 years old. That about 3 o’clock on the afternoon the chickens were stolen, he was going to Pryor on the Claremore-Pryor road with a young lady by the name of ¡Spoon; that he saw the defendant about 200 yards west of the schoolhouse. The defendant was walking east on the south side of the road. He saw the blue automobile and remembered that it had mud splashed on it; and there were only two boys in it. The other witnesses testified that they saw the defendant in Pryor after the drawing. One of them testified that he saw the defendant at the drawing, around 2 o’clock.

The witnesses offered by the defendant had him in Pryor at various times from 2 until 5 o’clock.

The defendant’s own admissions, however, contradict part of this testimony, as he could not have been at the places where he admits being, and also in the town of Pryor at the same time. If the defendant had not been in such close proximity to the Qualls family at the time the car was stuck in the mud hole so* that they could positively identify him, he could have denied all of the state-merits made by the accomplice, Rush, and would have had alibi testimony to have kept him in Pryor during all of the time of the occurrences as related by the accomplice.

In rebuttal, the state introduced the testimony of the undersheriff, who testified that he was called early Saturday afternoon by Mr. Qualls, who told him about seeing the three boys on the muddy road west of Pryor and suspecting them of being chicken thieves; that at Qualls’ suggestion he called the officers at Claremore to be on the. lookout for this automobile. That he and Qualls then got in his automobile and immediately started to Claremore. That he did not know the exact time that they arrived at Claremore, but thought it must have been about 2:30 or 3 o’clock. That they caught the defendant Clyde Rush, Jr., right after he had sold some chickens at the produce house and arrested him at that time. That between the time of the theft of the chickens and the next Thursday morning when the defendant came to the sheriff’s office and surrendered, he went to see the defendant’s old man at his home; that the defendant was not there, but the old man told him he would bring defendant in the next morning.

In the early case of Moody v. State, 13 Okla. Cr. 327, 164 P. 676, this court laid down the rule with respect to the corroboration of accomplice testimony. In that case it was held:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to' some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

There have been many decisions by this court since the decision in the Moody Case, supra. In some of them the wording of the decision has been slightly different from the wording of the law set forth in the Moody Case, but the substance of these decisions is the same; and this court has consistently adhered to the law as set forth in the Moody Case.

With this test in mind, let us see what facts are. proven which are corroborative of the testimony of the accomplice:

First. An admission by the defendant that he was a friend and associate of the accomplice.

Second. An admission by the defendant that he met his two codefendants at the post office and went riding with them. The fact that the defendant, a country boy, admits leaving the town of Pryor on a Saturday just at the time of the general drawing, where all of the farmers in the vicinity of Pryor attended, and driving off on a muddy road for three and three-fourths miles just for the ride, is a very suspicious circumstance and strongly corroborative of the accomplice testimony. This court feels that there is something stronger than’ just the urge to go for the ride that impelled these boys to take this drive.

Third. The testimony of Earl Lee, wlm saw the car in which the thieves were traveling four times. There were three boys in the car each time he saw it. The last time be saw tbe car, which was after the theft, two- hoys were in the front and one in the back seat.

Fourth. The testimony of Willard Rose, which proves that the theft was committed by three persons.

Fifth. The action of the defendant in fleeing from one relative to another during the several days after the crime was committed.

Sixth. The short space of time from the time Qualls last saw the boys in the blue car until Qualls and the undersheriff arrested the accomplice at Claremore. According to Qualls’ testimony, he called the undersheriff immediately upon his arrival at Pryor, and shortly thereafter they started for Claremore to search for the suspicious looking automobile. Since it is definitely established by the proof of Willard Rose that three men committed the theft, it is very unlikely that the defendants Rush and Jackson would have picked up a third party in so short a time to have taken with them to the Qualls farm after the chickens, which would have had to be the fact if the story related by the defendant Hathcoat was true.

Seventh. The defendant Hathcoat lived a mile south of the Osage schoolhouse, which would have made him the only one of the three boys who was thoroughly familiar with the vicinity where the boys were traveling that afternoon in the automobile. The accomplice lived in Pryor.

While none of these facts and circumstances standing alone would be deemed sufficient corroboration of the accomplice’s testimony, still, when they are all considered together, they are sufficient under the law pronounced by this court many times.

The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to cor-robórate only if there be no evidence legitimately having that effect. Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

In Key v. State, 38 Okla. Cr. 169, 259 P. 659, this court held:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to< connect the defendant with the commission of the offense, it will uphold the verdict.”

The above cases are not cited because of the similarity of the facts in those cases to' the case at bar, but solely for the rules of law adopted in each said case which are applicable to the instant case. This court has sustained many larceny cases where the evidence was no stronger than that shown herein. It is true that in a few cases we have granted reversals, but all of them can be distinguished from the facts in the case at bar.

The attorney for the defendant emphasized the fact that the defendant was not present at the produce house at the time the chickens were sold. In considering the sufficiency of the evidence to sustain the conviction, this court under its decisions must give credence to the testimony of the two' state’s witnesses who* proved that three persons accomplished the theft. Whether it was the defendant or some person whom the accomplices Rush and. Jackson picked up after they had been with the defendant at the well, as has been suggested by counsel for the defendant, the third party was not present at the time the chickens were sold. Whoever he might have been, he did not choose to be seen at the produce house. The explanation as to why the defendant did not wish to be seen is very plausible in view of the fact that the defendant is the only one of the three parties charged who had a criminal record. The defendant at that time being at liberty under a suspended sentence for burglary and being older and wiser than the older boys, it was natural that he would prefer to remain in the background as much as possible.

The court instructed the jury upon the question of accomplice testimony and submitted the question to the jury for their determination as to whether or not the facts were sufficient to corroborate the testimony of the accomplice. The jury Avas acquainted with all of the parties in the case and was able to see their demeanor on the witness stand. The facts were properly a question for the jury to determine; and in a case of this character, we shall not interfere with the verdict of the jury.

The judgment is accordingly affirmed.

DOYLE, P. J., concurring.

BAREFOOT J.

(dissenting). It is not often that the members of this court are not in entire agreement in their opinion as to the result of cases brought here on appeal. However, I do not find myself in agreement Avith the conclusions reached by my colleagues in the above case. This is a small case and one that would not under1 ordinary circumstances demand the writing of a dissenting opinion, but when I am reminded by the record that the defendant is a young boy only 19 years of age at the time of his trial, and that this decision sends him to a felon’s cell and takes from him not only his liberty, but, in all probability, his usefulness as a citizen of this state, I cannot but express my view of the record as it appears to me.

The principles of law announced in the opinion and in the syllabus are correct,' and I have no fault to find with those principles. It is the application of the facts to those principles of law with which I am not in accord.

Defendant was a boy 19 years of age. On Saturday, the 7th day of May, 1938, he was in the city of Pryor, and some time just after noon Clyde Rush, Jr., who was a co-defendant, asked defendant and J. B. Jackson, wlm was also a codefendant, to take a ride out in the country in Rush’s father’s car. They agreed to go for the ride. They drove about three and three-quarters miles west of Pryor on Highway No. 20, which is the highway running from Pryor to' Claremore, then north three and three-quarter miles, at which point their car got stuck in the mud. This was about 2:15 p. m. While the car was stuck in the mud, P. P. Qualls, Rosa Qualls, his wife, Forrest Qualls, his son, and his son’s wife came along the road going to Pryor, saw the car stuck in the mud, and assisted the boys in getting out. The boys followed the Qualls car for about a quarter of a mile to Highway 20, where the boys turned toward the west and the Qualls car proceeded east toward Pryor. There was no conflict in the evidence up to- this point. The car in which the boys were riding went west about a mile and three-quarters by the Osage schoolhouse, stopping at a well by the side of the road to secure water for the car. The defendant testified that he left the car at this point and walked toward his home, which was about one and one-half miles west of the cross-roads where the two' cars separated; when he reached Highway No. 29 and started south, that he was picked up' by Ralph Panter in a car and went to' Pryor and attended a public drawing contest that was held there on that day. The accomplice, Clyde Rush, Jr., testified that the defendant did not leave the car, and that either the defendant or Jackson or himself said, “Let’s go back and get the chickens.” That the three of them drove to the home of Mr. and Mrs. Qualls, they being the same parties who had assisted them in getting out of the mud hole; and that they stole 16 chickens from the Qualls home, and drove to the edge of Clare-more, in Rogers county, which the record shows is about 18 miles from Pryor, Okla. The witness Clyde Rush, Jr., testified that he got out of the car at the Qualls home and put mud all over the license plate. As a reason for this he stated that he had read magazines where this had been done. He further testified that when they crossed the railroad track at the edge of Claremore, defendant Efton Hathcoat said, “One of us had better get out. I’ll get out and let you two go on”; and that defendant got out and was going to wait until they got back; that he and Jackson went to the produce company; that he took one of the sacks of chickens; that Jackson took another, and that they left one sack in the car; that just after they had sold the chickens and put them in a coop they were confronted by Undersheriff Wilson and Mr. Qualls, and Clyde Rush, Jr., was arrested and put in jail. J. B. Jackson escaped, and the charge in this case was the outgrowth of this arrest. The accomplice, Clyde Rush, Jr., testified that he had seen defendant one time after that, and that was on the road to Tulsa about a week after he got out of jail, and that the defendant told bim if he would take the “rap” he would give him $3,000; that Buster Young was with them and heard the conversation; this witness was not at the trial and did not testify; that he saw defendant one time after that and he told him he was going to' skin his head.,

Mr. and Mrs. P. F. Qualls both testified to the loss of the chickens, the assisting of the boys out of the mud hole, and identified the chickens recovered in Claremore as their chickens, and that they did not give their consent to' the taking, of them.

Witnesses upon which the state relied to corroborate the evidence of accomplice, Clyde Rush, Jr., were Willard Rose and Earl Lee. Willard Rose testified that on May 7, 1938, about 3 o’clock, he was about a quarter of a mile north of the Qualls farm and that he had a clear view of the Qualls house; that he saw a car drive up to the yard gate from the west; that the car stopped there for quite a while and then left and came back and stopped at the yard gate; he saw one of the parties go to the house; one came from the barn and one stayed in the car. He did not see them going to the chicken house, but saw them coming from there; that each one of the three had a sack in his band. He could not identify any of the parties and could not swear the defendant was one of them.

Earl Lee testified that he lived five miles northwest of Pryor and a mile and a quarter southeast of the Qualls home. On the 7th day of May, 1938, he saw a blue Ford V-8 car with three boys in it going north of Pryor, all three riding in the front seat; that he later saw it going south and saw it going north and then west at his house; saw it at the same place later coming' from the west and turned out with three persons in the car. He testified on cross-examination that he did not know the defendant Efton Hathcoat, and could not identify him as one of the persons he saw in the car.

The above is the only material evidence offered by the state.

The defendant denied having participated in the larceny of the chickens, and, as above stated, testified that lie left tlie boys and walked toward bis borne and after-wards went to Pryor to the public drawing; that before he left them at the well, Clyde Rush, Jr., said: “The Qualls are going to town and let’s go back and get his chickens;” that he told Rush he was not in the chicken business, and had enough trouble and asked Rush to take him home; that he said it was too muddy to take him home; that he walked back east about 100 yards and turned south toward his home, which was about a. mile from there; that he did not get home, but went back to Pryor with a man by the name of Ralph Panter. Defendant testified that he had subpoenaed the witness Ralph Panter, but had not seen him; that when he left Pryor on Saturday evening, May 7, 1938, he did not hear about the chickens being stolen until Monday night; that his father told him that he had heard that he had been charged with the stealing of them; that he went to Mazie in Mayes county to the home of an uncle until his dad could find out for sure if he had been charged with the stealing of the chickens; that he returned to his home on Wednesday night, and on Thursday morning, about 9 o’clock, he went to the sheriff’s office and gave himself up and made bond for his appearance before the district court.

The defendant offered as a witness in his behalf John R. Keel, a disinterested witness, who testified he was 70 years of age, and on May 7, 1938, he lived a mile north of the old Osage schoolhouse, which was very close to the well where defendant claimed to have left the car to go home; that on that afternoon, about 3 o’clock, he was traveling with a young lady by the name of Miss ¡Spoon; that he does not know where she is at this time, but that her folks moved to Oxford, Kan.; that he knew the defendant Efton Hathcoat, and that he saw him on the south side of the road about half way between the well and the schoolhouse walking east; that he was alone; that he saw a car at the well; that it was on the wrong side of the road and he had to' wait for it to get out of the way; that the car headed west and had two parties in it whom he did not know; that defendant was not in the car; that Mr. Hathcoat and Efton were his neighbors and that they all Avorshipped at the Osage schoolhouse, and that Efton was a neighbor of Miss Spoon. The evidence was in complete accord with the evidence of defendant. It was in direct conflict with the evidence of the Avitness Clyde Rush, Jr.

C. C. Boren testified that he was well acquainted with the defendant Efton Hathcoat and his father; that he lived in the same neighborhood with them; that he attended a drawing at Pryor Saturday afternoon, May 7, 1938; that he positively identified the date, because he heard that evening that Mr. Qualls had some chickens stolen. He testified that he saw the defendant on the streets of Pryor about 3 o’clock Saturday evening on the comer near the American National Bank; saw him on two different occasions a few minutes apart; that he saw him with his father; that he was not related to defendant and had no interest in the case.

Guy Pitts, who lived in the same neighborhood and knew the defendant and his family for 15 years, testified that he Avas in Pryor on the day of the drawing, and after it was over about 3:30 he went down town and saw defendant on the streets of Pryor.

Edgar Whitmire, who lived five miles south of Pryor, testified he saw defendant there about 3:30 on Saturday, May 7, 1938.

P. H. Hathcoat testified that he was the father of the defendant; that he was in Pryor on the afternoon of Saturday, May 7, 1910; and he saw his son, the defendant, on the streets of Pryor a little after 3 o’clock, and while witness was talking with Mr. Whitmire and Mr. Boren.

I am familiar with the rule that we have so often pronounced, that the verdict of a jury will not he set aside where there is any evidence in the record to sustain it; also the rule that where there is no evidence to sustain it, we will not hesitate to set the verdict aside. I also recognize the rule that where a conviction is to he considered upon the evidence of an accomplice, the court will carefully examine the evidence to see that the same is properly corroborated as required by the law of this state. And more especially should this be true where a defendant takes the witness stand and denies the statement of the accomplice, and not only denies it, but produces evidence of disinterested witnesses to corroborate his evidence and to refute the evidence given by the accomplice.

After a careful reading of all the evidence of this record, and especially the evidence of the accomplice, Clyde Bush, Jr., one is impressed with the necessity of his testimony being corroborated. At the very outset he testifies that the other defendants were the ones who' suggested to him the stealing of the chickens, and that he secure his father’s car for that purpose. He testifies that they were going out to> “Qualls’ Place,” yet he afterwards testified he did not know where Qualls lived. He could not tell which of the three, at the well, suggested that they gx> to the Qualls home for the purpose of stealing the chickens. He further testified that he sat in the car when the chickens were being stolen and that the other two defendants brought the three sacks to the car. This is in direct conflict with the evidence of the state witness Willard Bose, who testified that each of the three had a sack of chickens. He also testified that at his own suggestion he procured mud and placed the same upon the license plate of the car, and this was an original thought- with him. It is passing, strange that the defendant who was the instigator of the crime, according to his testimony, should he the one who left the car at Claremore and left it to the other two to go to the produce house and sell the chickens. This evidence does not just ring true. The defendant was never seen in Claremore; he was not present at the produce house when the chickens were delivered, and he produces five disinterested witnesses who corroborate the evidence which he gave, and the same is uncontradicted.

The statement of the accomplice, Clyde Rush, Jr., that defendant offered him $3,000 to take the “rap” is almost unbelievable. The evidence of the witness John R. Keel, a disinterested witness, completely corroborates the evidence of defendant. Evidence of the four witnesses who saw the defendant on the streets of Pryor between 3 and 3:30 o’clock on Saturday, May 7, 1938, and at the very time that the chickens were being stolen and taken to Claremore, according to the evidence of Clyde Rush, Jr., the accomplice, absolutely refutes this testimony.

I am at a loss to see how a jury could have carefully weighed all the evidence produced in this case and, under the instruction of the court requiring them to- be convinced beyond a reasonable doubt of defendant’s guilt, brought in a verdict of guilty against this defendant.' I am not suggesting that defendant was not guilty of this crime. I am only speaking of the evidence as it appears in the record.

The corroboration relied upon by the state, as stated above, are the witnesses Willard Rose and Earl Lee. Their evidence has heretofore been stated. Neither of them was able to identify the defendant as being the party they saw. Each of them said they saw three persons. One at the time the chickens were being stolen, and at a distance of a quarter of a mile, the other immediately after the chickens were stolen and in close proximity to where they were stolen. This is a circumstance that corroborates the testimony of the accomplice, Clyde Rush, Jr., but under the law and the evidence taken as a whole, is this sufficient corroboration to uphold this judgment and sentence against this defendant? I do not think so.

It is provided by section 3071, Okla. Stats. 1931, 22 Okla. St. Ann. § 742, as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This statute has been constructed so often by this court that it will not be necessary to cite all of the cases. The case of Kennedy v. State, 65 Okla. Cr. 77, 83 P. 2d 198, 200, in quoting from the case of Rogers v. State, 57 Okla. Cr. 294, 48 P. 2d 344, one of the leading cases, announced these general rules with reference to what was necessary for the corroboration of an accomplice’s testimony :

“ ‘There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.
“ ‘It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his testimony must be corroborated as to the particular defendant.
“ ‘It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators.
“ ‘The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to' raise a suspicion of guilt. 1 Enc. of Ev., pp. 104, 105, 106, and 108, and cases cited.’ Peck v. State, 50 Okla. Cr. 213, 297 P. 323; Stevenson v. State, 50 Okla. Cr. 295, 297 P. 328; Hicks v. State, 18 Okla. Cr. 718, 196 P. 144; State v. Roy Wilks, 17 Okla. Cr. 247, 187 P. 813; Weaver v. State, 58 Okla. Cr. 360, 53 P. 2d 696.”

The Kennedy Case is one very similar to the case at bar, and in our opinion the facts in that case were stronger than in the instant case, and it was reversed because the evidence was insufficient to corroborate the accomplice.

In the instant case, when the testimony of the accomplice is eliminated, you have only the testimony that the defendant was seen in company with the accomplice prior to the time the chickens were stolen, and the testimony of a witness that at a quarter of a mile distance he saw three parties at the Qualls home. He did not know who they were, and at no time identified the defendant as one of these parties. Another witness testified he saw three parties in a Ford car driving by his home, which was near the Qualls home, about the time the accomplice said the chickens were stolen. There was no' identification of the defendant by this witness. He did not know any of the parties. This evidence at the very best could only create a suspicion against the defendant. Some of the cases that have discussed this question are here cited. Madden v. State, 26 Okla. Cr. 251, 223 P. 716; Hamilton v. State, 53 Okla. Cr. 281, 10 P. 2d 734; Rogers v. State, 57 Okla. Cr. 294, 48 P. 2d 344. In the case of Hankins v. State, 62 Okla. Cr. 252, 71 P. 2d 119, 121, the court says:

“It is not sufficient corroboration to prove the crime was committed in the manner described by the accomplices. Their testimony must be corroborated as to' the particular defendant, and it is not sufficient for this purpose merely to connect the defendant with the accomplices, or other persons participating in the crime, bnt the evidence mnst tend to connect him with the crime itself, and not simply with its perpetrators, and corroborating evidence may be sufficient although of itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.”

In the following cases: Saied v. State, 65 Okla. Cr. 124, 83 P. 2d 605; Scott v. State, 65 Okla. Cr. 47, 82 P. 2d 684; Teague v. State, 64 Okla. Cr. 369, 81 P. 2d 331; Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240; Brewer v. State, 63 Okla. Cr. 389, 75 P. 2d 901; and Wilson v. State, 66 Okla. Cr. 322, 92 P. 2d 625, this court has held that the evidence was sufficient to corroborate the accomplice. It will be noted that in most of those cases the defendant had been identified positively by the witnesses who corroborated the accomplice. In the instant case there is no such testimony. The evidence in those cases was much stronger than in this case. The testimony fails to exclude every other reasonable hypothesis than that of the guilt of the defendant. The corroborating circumstances amount to nothing more than a suspicion of the defendant’s guilt. As stated in the case of Rogers v. State, supra [57 Okla. Cr. 294, 48 P. 2d 347] :

“The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty.”

The statement in the original opinion that one of the witnesses who testified for defendant said “that he saw the defendant at the drawing, around 2 o’clock,” is hardly correct. This was the witness Guy Pitts. He at first testified that he saw the defendant down where the drawing was; that it usually started about 2 or 2:15 o’clock and was possibly over in 45 minutes. He was then asked:

“Q. Did you see him at the drawing? A. No, sir. Q. I didn’t think you said that. Now, when did you see him with reference to the closing of the drawing? A. Well, I judge somewhere along 3:30. Q. In Pryor? A. Yes, sir. Q. You know that it was Efton Hathcoat? A. Yes, sir. Q. When did you go home? A. It was about four or 4:30. Q. Did you see him more than once, or just the one time? A. Three or four times. He was standing just a little further down the street.”

There can be no question of the testimony of the witnesses produced by the defendant. They placed the defendant in the city of Pryor, 18 miles distance from Clare-more, at the very time it would have been necessary for him to be in Claremore, according to the evidence of the accomplice Clyde Eush, Jr. There was a slight variance as to' the time they saw him, but it was not such a variance as would have permitted him to have been with the accomplice at the time he stole the chickens and took them to Claremore and sold them, and was arrested with a part of them in his possession.

The majority opinion further states:

“The defendant’s own admissions, however, contradict part of this testimony, as he could not have been at the places where he admits being and also in the town of Pryor at the same time.”

This is not as I read the record. The defendant testifies that he was picked up by Ealph Panter, whom he names, and then he was asked:

“Q‘. When you got to Pryor about what time was it? A. Well, it was about 3 o’clock.”

The evidence showed it was only four miles from the Osage schoolhouse to Pryor, and would have only taken him a few minutes to get there.

A disinterested witness, John R. Keel, an old man past 70 years of age, testified that he saw the defendant walking in the road, just as defendant testified, and “it wasn’t very far from 3 o’clock.”

Witness C. C. Boren testified he saw the defendant in Pryor, and he judged “it was around three o’clock in the afternoon,” and it was after the drawing.

Guy Pitts testified as above stated.

Edgar Whitmire testified to seeing the defendant at Pryor around 3 or 3:30 o’clock.

P. H. Hathcoat, who is the father of the defendant, testified that he saw the defendant in Pryor, and in his judgment it was around 3 o’clock; that it was after the drawing.

Deputy-Sheriff Wilson for the state testified that it was 3 o’clock when he was at Claremore and arrested the accomplice, Clyde Rush, Jr., at the produce house with the stolen chickens in his possession. If Deputy-Sheriff Wilson’s testimony is true, then it was a physical impossibility for the defendant to be at Pryor, 18 miles away, at the very time the accomplice was at Claremore with the stolen chickens.

There can be but one conclusion drawn in this case, and that is, if the testimony of the defendant and the independent witnesses John R. Keel, C. C. Boren, Guy Pitts, Edgar Whitmire, and defendant’s father, P. H. Hathcoat, was true, then the testimony of the accomplice, Clyde Rush, Jr., was untrue. Can it then be said that the corroboration of the accomplice in this case was sufficient? I cannot come to that conclusion.

It is further stated in the majority opinion:

“If the defendant had not been in such close proximity to the Qualls family at the time the car was stuck in the mud hole so that they could positively identify him, he could have denied all of the statements made by the accomplice, Rush, and would have had alibi testimony to have kept him in Pryor during all of the time of the occurrences as related by the accomplice.”

I find nothing in the record to justify this statement. It seems that, instead of giving this 19-year-old school boy the benefit of the presumption of innocence with which the law shields him, every inference and doubt is resolved against him. If I were indulging in presumptions in this case, it would be that the witness Willard Rose, who was permitted to sit in the courtroom during the trial of this case, did not see three parties at the Qualls house at the time the chickens were stolen, and that the witness Earl Lee probably saw the three boys in the car when they were together passing his house, and just presumed, after hearing the case tried, that there were three of them when they passed the last time.

The cases cited in the majority opinion to sustain the judgment and sentence are: Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; Haas v. State, 37 Okla. Cr. 335, 257 P. 1115; Key v. State, 38 Okla. Cr. 169, 259 P. 659.

In the Moody Case the law is correctly stated with reference to the corroboration of accomplices, but an examination of the facts reveals a very different line of corroboration than in the case at bar. It is unnecessary to prolong this opinion by stating the facts. The defendant was charged with murder, and given a life sentence. The facts were much stronger than in the case at bar, and much of the corroboration was declarations made by the defendant himself.

In the Underwood Case the court found the witness was not an accomplice, and therefore it was not necessary that he be corroborated.

' In the Haas Case the facts were somewhat similar to the facts here, but in that case the defendant was positively identified by two witnesses. Here no one positively identified the defendant.

In the Key Case it was reversed because the evidence was insufficient to corroborate the accomplice. The principles of law announced in the syllabus are correct, as are the principles announced in the majority opinion, but the court, speaking through Judge Edwards, found that the facts were insufficient to corroborate the accomplice. The court said that there is slight corroboration, but not sufficient to uphold the judgment and sentence. That is exactly what I find in this case.

In the case of Hamilton v. State, 53 Okla. Cr. 281, 10 P. 2d 734, 735, the court, after reviewing the evidence, says:

“This testimony creates a strong suspicion, because it shows opportunity for defendant to have aided or abetted or to have profited from the proceeds of the crime. The circumstances proven are too remote. The testimony is insufficient corroboration under the requirement of the statute and many decisions of this court. Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156;Wever v. State, 22 Okla. Cr. 414, 211 P. 1062; Livingston v. State, 29 Okla. Cr. 247, 233 P. 235; Underhill, Crim. Ev. (3d Ed.) p. 161, § 130.”

As stated in the case of Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156, 1157:

“He could have named any other man in Washita county as an associate in this crime, and yet be corroborated as to this circumstance.”

This is exactly the facts in the case at bar. The accomplice here could have named any man in Mayes county, saying that he picked him up before the chickens were stolen, and if he had an absolute defense and alibi that he was not in Mayes county, yet the jury could have convicted him and, under the majority decision, the fact that three parties were seen at the time the chickens were stolen would he sufficient corroboration to find him guilty, regardless of his innocence, and this court would be powerless to give him relief. This argument, to my mind, is unanswerable as applied to the facts in the case at bar.

The trial court, at the time of passing upon the demurrer to' the evidence in this case, said: “It is pretty close, but I will overrule the demurrer.” At another stage of the trial, the court below said: “The law doesn't put much faith in an accomplice’s testimony.”

No1 doubt a new trial would have probably been granted, but trial courts are sometimes slow to grant new trials which necessitate a retrial of the case at the expense of the county, and especially when the case can be appealed to a higher court which can give relief.

I am of the opinion this case should be reversed and that the county attorney should interview the witnesses Ralph Panter and Miss Edna Spoon. If their evidence corroborates the evidence of the defendant and the witness John R. Keel, the case should be dismissed. If not, it should be retried. Also the witness Buster Young should be contacted as to whether he would corroborate the testimony of the accomplice, Clyde Rush, Jr., as to defendant’s offer of $3,000 if he would take the “rap.” The evidence of these three disinterested witnesses would either make or break this case. In my opinion justice to- this young defendant demands this, and therefore I dissent to the opinion of the majority of the court rendered in this case.


author: DOYLE, P. J.

text:
    RUBY RACHEL v. STATE. FRANK VINSON v. SAME.
    No. 9736.
    Nov. 27, 1940.
    (107 P. 2d 813.)

      Dudley, Hyde, Duvall & Dudley, of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Two informations were filed in the common pleas court of Oklahoma county on January 14, 1939, charging the offense of openly outraging public decency and injuring public morals. The cases coming on for trial were by agreement in open court consolidated and the defendants were jointly tried. Upon the trial the jury found the defendants guilty as charged in the informations, but was unable to agree upon the punishment. Separate motions for new trial were duly filed, presented and overruled. The court rendered judgments on the verdicts and sentenced the defendant Ruby Rachel to pay a fine of $500 and be imprisoned in the county jail for a period of six months, and sentenced the defendant Frank Vinson to pay a fine of $25 and be imprisoned in the county jail for a period of four months.

To reverse the judgments an appeal was taken by filing in this court on December 7, 1939, their consolidated petition in error Avith case-made attached.

The informations were drawn under Penal Code, sec. 1769, 21 Okla. St. Ann. § 22, which reads as follows:

“Every person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.”

One information, omitting formal parts, charged that in Oklahoma county, on the 14th day of January, 1939, Ruby Rachel did commit the crime of openly outraging public decency and injuring public morals in manner and form as follows: That the said defendant did then and there openly, willfully, wrongfully and unlawfully commit acts in the presence of and among divers and sundry persons which did then and there openly outrage public decency and injure public morals, in form and manner as follows, to wit: the said defendant being a white Avoman, did lasciviously associate with a negro man, to wit: Frank Vinson, and did hold sexual intercourse Avith said Frank Vinson, a negro man, at an apartment at Fifth and Stiles in Oklahoma City, said county and state.

The other information charged the defendant Frank Vinson with the same offense.

In the case of Stewart v. State, 4 Okla. Cr. 564, 109 P. 243, 32 L. R. A., N. S., 505, this court, having under consideration the question of the validity of this provision of the Penal Code, held that the Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result, and that this statute is not void for uncertainty as to what acts the Legislature thereby intended to penalize. And see Miles v. State, 30 Okla, Cr. 302, 236 P. 57 44 A. L. R. 129; State v. Lawrence, 9 Okla. Cr. 16, 130 P. 508.

It is the contention of the defendants that the evidence is insufficient to sustain the verdicts, in that there was no evidence to support the essential element of the crime charged, of “openly” committing such acts, and in this connection “reversible” error was committed in refusing to- sustain the demurrer to the state’s evidence, and in refusing to direct the jury to return verdicts of acquittal.”

The undisputed facts in evidence are that the defendant Frank Vinson, a colored man, occupied the rear room of an apartment house at 425 East Fourth Street, which had two entrances, one on the street and the other on the alley. This apartment is in the heart of the colored district. The defendant Ruby Rachel conducted the Ruby rooming house in the 100 block on Reno street. About 9 o’clock on the night of the date alleged, Nathan Raker, a colored city detective, saw Ruby Rachel get out of a taxicab at Fifth and Stiles; she walked south on Stiles, passed his car parked with the lights off, and he followed her until she entered the apartment at the alley entrance; he then drove around the block, stopped, walked up the alley and saw her sitting in a room talking to Frank Vinson. He then called two white officers, Kuykendall and Mc-Curdy, city detectives.

Officer McCurdy testified that, accompanied by Officer Kuykendall, answering a call to' meet a colored officer in colored town, they arrived at the place, and stood in the alley; he saw Ruby Rachel sitting on a chair in the room occupied by Frank Vinson; they were mixing some drinks; the officers stood in the alley about 30 minutes; standing in the alley they could not tell what was going on in the room, and they went around to' where they could see in the window; the shade was drawn to' within a foot of the bottom of the window, and they all had to stoop to look in. The man had on pajamas, the woman removed her dress, leaving her slip on; they turned out the lights and got in bed. He turned his flashlight in the room and as far as he could tell they were having sexual relations. The officers broke open the door and went in; they found the woman in bed, covered up, and the man 'sitting on the side of the bed; they took them to the station and put them in jail.

Officer Kuykendall testified that he was with the officers, 425 East 4th, at the side window of an apartment, just off the alley; the window shade was down, and he could see Ruby Rachel in there with Frank Vinson, and they were drinking; she had her clothes off, all but her slip, and Vinson sat on the bed, with a pair of pajamas on; then they turned the lights out, and got in bed; that he turned his flashlight through the window, and saw Vinson on top of her and they broke in the door; that in a conversation with Ruby, she said Vinson had been nice to her; that she liked him, and she could not see anything wrong with it.

On cross-examination he stated that to reach this apartment they had to go up the alley; that there is no Avindow on the alley side; that they had to go on around the corner of the building in order to look in the window.

When the state rested its case, the defendants interposed demurrers to the evidence on the ground that the same is wholly insufficient to establish the allegations of said informations, and is wholly insufficient as a matter of law to justify the court in requiring the defendants or either of them to put on any proof. Which demurrers were overruled and exceptions allowed.

The defendant Ruby Rachel, as a witness in her own behalf, testified that she ran a rooming house on West Reno, and that she was unmarried; she admitted that she was at Frank Vinson’s room as charged; that the entrance to- this room is the door that opens from the alley; that she did not have intercourse ivith Vinson that night as the officers did not give them time.

She further testified that she was one-eighth Negro and one-eighth Creek Indian; that her mother was part Indian and part Negro.

On cross-examination she stated that she was born in Shattuck, Okla.; that her first husband was Rachel, part white man and part Indian, now dead; that her second husband was Daglish, a white man, part Indian, who- divorced her when he found out she was part Negro; that her third husband was Switzer, a white man, and they were divorced in 1935; that her mother told her she was one-eighth Negro-; that she was an only child and had always lived as a white woman.

The foregoing is a substantial statement of the evidence relied upon to- support the convictions.

At the close of all the evidence counsel for the defendants- moved the court to instruct the jury to return a verdict of not guilty as to each defendant, for the reason that the evidence failed to establish the material allegations of said informations. The motion was overruled, exceptions reserved.

Before a conviction can be had under Penal Code, sec. 1769, supra, it must be established that the act charged was openly done.

In the early case of Gunn v. Territory, 19 Okla. 240, 91 P. 861, 862, the Supreme Court of the Territory of Oklahoma held that the statute making it an offense to- commit any act which “ ‘openly outrages public decency, and is injurious to public morals’ ” is directed against acts which are committed openly and affect the public.

A doctor’s private office is not such a place as will give an act committed therein the character of an open act, especially when no one was present except the one against whom the act was committed.

In. the opinion of the court it is said:

“If the defendant did the acts charged, he outraged decency and committed an act injurious to morals; but he did not openly outrage public decency and commit an act injurious to public morals.”

In the case of Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591, 592, in which this section was being construed, we said:

“It is a well-settled rule of the law that statutes prescribing punishment are to be strictly construed in favor of the defendant, and, where such a statute is capable of two constructions, the construction which operates in favor of the defendant is to be adopted.”

In the case of West v. State, 27 Okla. Cr. 125, 225 P. 556, the court held:

“The commission of reprehensible indecent acts by a man of mature years with a female child of tender years, where no physical injury resulted, and where the acts complained of were done in private, does not come within the provisions of section 2287, Compiled Statutes 1921, sec. 1769 supra, 21 Okla. St. Ann. § 22 commonly known as the statute against outraging public decency.”

Held further:

“Courts will not ordinarily, by judicial construction, enlarge the scope and operation of a penal statute beyond the commonly accepted meaning of the language of the statute, or of its clearly expressed limitations.”

In Roberts v. State, 27 Okla. Cr. 97, 225 P. 553, 554, Henry Roberts, a white man, and Nancy Jiles, a negro Avoman, were charged under this section with disturbing the public peace and openly outraging public decency in that they lived together in open and notorious adultery. The judgments were reversed by this court on the ground that the charge was duplicitous.

In the opinion it is said:

“In communities where white people and negroes reside, business relations between the races are inevitable, and just how far social relations should extend is a question concerning which good people entertain different ideas. .Social equality between the races is of course unthinkable; such equality would bring about the moral degradation of both races. But from the proof in this case we cannot say, as a matter of law, that the conduct of these two' individuals, exclusive of that testified to' by Roberts’ daughter, so outraged public decency or was so injurious to public morals as to' constitute a crime under the provisions or within the meaning of the act above quoted. Not every moral dereliction is a crime within the meaning and intended operation of this statute.”

And see Fessler v. State, 12 Okla. Cr. 579, 160 P. 1129; Perales v. State, 14 Okla. Cr. 601, 174 P. 1100.

In 46 C. J. 1110, the word “openly” is defined as follows :

“By some word or act which is an open declaration to those in the neighborhood; in an open manner; not clandestinely; not privately or in private; not within a concealed place or inclosure; publicly, in the sense of not being concealed ; publicly to the people in view, whether upon public or private property; without secrecy.”

The term “openly,” as used in the statute providing that every person who willfully and wrongfully commits any act which openly outrages public decency and is injurious to public morals, is guilty of a misdemeanor, means in an open manner, not clandestinely; not privately, or in private, and is used in the sense of not being concealed, as opposed to being hidden or secret.

The offense created by this provision of the statute does not depend on the number of people present. It is enough if it be an intentional act of lewdness, offensive to one or more persons present, whether upon public or private property.

In the case at bar the evidence discloses that the acts charged occurred at night in the apartment of the defendant Vinson, the shades on the windows were drawn, and it was only by stooping down and peeping in the window that the officers were able to see the defendants; no one but the officers did see them in bed; this they did by turning their flashlights through the window after the lights inside were turned off; there was nothing done openly, it took place clandestinely, in private. Oklahoma has no statute making fornication an offense. However, fornication, if openly done, may be a violation of this section of the Penal Code. Upon the undisputed facts we think it was immaterial as to whether or not the defendants engaged in an act of sexual intercourse.

The Code of Criminal Procedure provides:

“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.” Section 3090, Sts. 1931, 22 Okla. St. Ann. § 850.

At the close of the evidence it is the province of the trial court to determine whether or not there is any substantial evidence which would authorize the submission of an issue of fact to the jury.

We have considered all the evidence, and have concluded that the evidence for the state was not sufficient to warrant a conviction, and the trial court should have advised the jury to acquit the defendants by returning verdicts of not guilty.

This court is hound by the record before us, and applying the law to the undisputed facts in evidence, the opinion of the court is that the evidence wholly fails to support a conviction of openly outraging public decency and injuring public morals within the meaning of this provision of the statute as construed in the cases above cited.

For the reason that the judgments are not supported by evidence sufficient to establish the essential elements of the crime of openly outraging public decency, the judgments of the common pleas court of Oklahoma county must be reversed and the cases remanded, with direction to dismiss, and it is so' ordered.

BAREFOOT and JONES, JJ., concur.