author: DAVENPORT, P. J.

text:
    C. G. TRIPP v. STATE.
    No. A-9284.
    Oct. 15, 1937.
    (72 Pac. 2d 529.)
    Joe Adwon and James L. Gowdy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with R. O. Snapp with the crime of illegal possession of intoxicating, liquor; was tried separately, convicted and sentenced to pay a fine of $500 and to he confined in the county jail for 90 days.

When the case was called for trial, the defendant filed his motion to suppress the evidence, first, on the ground that the application for the search and seizure is based on information and belief, and not on positive facts. Second, the description of the property is ambiguous, wrong, indefinite, and uncertain, and cannot be ascertained without violating the Constitution and statutes of the state of Oklahoma. The defendant’s motion to suppress the evidence was by the court overruled, and the defendant reserved an exception.

When the case was called for trial, and after the defendant had exhausted all his peremptory challenges, there remained among the jurors called three jurors, J. V. Johnson, Joe Layton, and W. F. Fowler, who on their voir dire were asked the following questions and gave the following answers:

“Q. Mr. Johnson, is that your name? A. Yes, sir. Q. You told the court at this time you hold a deputy sheriff’s commission or reserve commission? A. Reserve. Q. Issued by the sheriff of this county? A. The sheriff’s office. Q. The sheriff’s office; and you are a reserve deputy at this time under the sheriff of the county, are you not? A. Yes, sir. Q. It has not been revoked by the sheriff of the county, has it? A. Not that I know of. Q. And you are the same Mr. Johnson that was questioned by me a few minutes ago on the jury? A. Yes, sir. Q. And you are a member of this regular panel, are you not? A. Yes, sir.”

Joe Layton was examined and stated as follows :

“Q. Now Mr. Layton, you are at this time an officer, are you not? A. I carry a commission, I don’t work at it. Q. You carry a commission? A. Yes, sir. Q. What kind of a commission do you carry, Mr. Layton? A. Well, I got a city commission. Q. Are you at this time a reserve commissioned officer? A. Yes, sir. Q. How long, Mr. Layton? A. About twenty years. Q. And after that length of time you retire on a pension? A. No, sir. Q. But you are still subject to be called out on service at any time? A. Yes, they could call me but they never have.”

W. L. Fowler, being examined on his voir dire, stated:

“Q. At this time you bold wbat we call a deputy sheriff’s commission, or reserve commission, do you? A. Yes, sir. Q. Has it been revoked? A. Not that I know of. Q. It is still in existence? A. So far as I know.”

On cross-examination Mr. Daugherty asked for an exhibit to be marked Exhibit 1, and asked Mr. Johnson if it was the same form of commission issued to him, and Mr. Johnson stated, “I do not have my glasses and can’t compare them. It looks the same, yes, sir.” He then asked Mr. Fowler if it was the same form issued to him and he said it was.

He then asked Mr. Layton if his commission was that of a police officer; he said he also had a commission like the exhibit two or three years ago, and, when asked, “You don’t have it any more,” replied, “I don’t think I have got any.”

The form of the commission issued is as follows:

“No. B B 25 Commission Beserve Deputy -.Sheriff.
“Know all men by these presents:
“That I, Stanley Rogers, Sheriff of Oklahoma County, State of Oklahoma, reposing special confidence in the worth, ability and integrity of., do, by virtue of my office, appoint him as Reserve Deputy Sheriff, without compensation, to be and act as such in a manner provided by law. This commission expires December 31, 1936, unless otherwise revoked.
• “In Testimony Whereof, I have hereunto set my handi this — ..day of.193.
“Sheriff of Oklahoma County, Oklahoma.
“Sheriff’s office 7 — 4591
“County Radio12 — 4231.”

The court then asked the jurors as to what authority they understood they had under this reserve commission, and the defendant interposed objections to the remarks of the court asking the jurors who had been called who held commissions as reserve deputies as to what they thought their authority was, which objections were by the court overruled, and the defendant reserved an exception.

The trial proceeded with the three jurors challenged by the defendant on the ground they were officers and not legal jurors. Evidence was introduced showing that acting upon a search warrant to search a one-story frame building known as the Italian Garden, located at 5301 Lincoln boulevard, adjacent to Oklahoma City, Okla., in said county and state, that Sheriff Rogers was one of the main witnesses against the defendant, and testified to seeing the defendant at the Italian Garden, and afterwards arresting him and forcing him to deliver his key to his home, which was a short distance from the place known as the Italian Garden, at which place the officers claim they found a quantity of whisky.

After a careful examination of this record, it is not deemed necessary to set out the evidence in full. The defendant has assigned nine errors alleged to have been committed by the trial court. Several of them possess merit, but the only one this court deems necessary to discuss is assignment 8, which is as follows:

“That the court erred in overruling plaintiff in error’s motion to dismiss certain jurors disqualified by the statutes to serve in that capacity.”

* The record discloses that a search of the defendant’s home was made without any authority, the state attempting to' justify their act on the ground that in the Italian Garden the officers claim to have found in the sink a broken bottle which contained whisky. The defendant was in the garden at the time and was placed under arrest for having ale, but it appears from the record that no charge was filed against him for the ale claimed to have been found in the Italian Garden.

R. O. Snapp, testifying for the defendant, stated that the defendant was in the Italian Garden when the officers came in. Witness stated he was manager for Mr. Sleeper, and that the defendant was not working in the Italian Garden, and was not employed there.

Because of the fact that the defendant was in the Italian Garden, in order to justify the action in searching! the defendant’s home which was a short distance from the Italian Garden, they claim they put the defendant under arrest and made him deliver the keys to his home to the officers, and, when they went to his home and searched it, they found the whisky. The search warrant only authorized the search of the Italian Garden and not for any out buildings, cabins, or residence. The search warrant did not authorize the officers to search the home of the defendant, and the view we take of this record it is not necessary to discuss the question of the search of the defendant’s home, except to say it was an unlawful search.

Section 805, O. S. 1931 (38 Okla. St. Ann. § 10) in part is as follows:

“All male citizens, residing in this state, having the qualifications of electors, of sound mind and discretion, of good moral character, not justices of the Supreme Court, or judges of the Criminal Court of Appeals, district court, superior court or county court, sheriffs or deputy sheriffs, constables, jailers, licensed attorneys, engaged in the practice of law, habitual drunkards, not afflicted with a bodily infirmity amounting to a disability, and who have never been convicted of any infamous crime or served a term of imprisonment in any penitentiary, for the commission of a felony, are, competent jurors to serve on all grand and petit juries within their counties”; and providing further exemptions. •

The question decisive in this case is whether the jurors Johnson, Layton, and Fowler were incompetent jurors to serve as three of the petit jurors to try the defendant. It is agreed by the state and the defendant that the copy of the form of the commission incorporated in this record is a true and correct copy of the commission the jurors Johnson and Fowler had at the time they sat in the trial of the case. The copy was not signed by any one, but all parties agreed to it being a correct copy of the commission.

A defendant charged with crime is entitled to a fair and impartial trial by a jury of his peers. The question in this case is, Did he have such a trial with Johnson and Fowler holding deputy sheriff’s commissions, and Layton a city commission as an officer*, at the time they served on the jury? The action of the trial court when they examined the jurors on their voir dire which disclosed they were holding deputy sheriff commissions, and the examination by the court of Stanley Rogers, sheriff, as to what his understanding was of the duties these reserve deputies should perform, is a new departure from the law regulating the impaneling of a jury, and, if courts of this state are permitted to follow such a proceeding, it will result not only in confusion, but will be unfair to the party charged. The sheriff, under the law, has no authority to advise the court as to the authority of his deputies when they are called as a juror. The impaneling and questioning of a juror on his voir dire is for the court and counsel on the respective sides of the case.

This court has been unable to find any authority conferred upon the sheriff to issue commissions to deputies called a reserve commission. In fact, the law specifically provides how the sheriff may appoint his deputies and Avhat is necessary for the deputy to do to become a legal deputy. These deputies given a reserve commission by the sheriff in all probabilities are men who* like to have authority and laud it over their fellowmen because they claim to be a deputy sheriff. It is easy to understand why some men seek this kind of an appointment. When the sheriff issues these reserve commissions to different men throughout the county, he does so without any authority of law, and the sheriff is misleading the public, and their actions are liable to create trouble with the citizenship of the county. There is no reason given why sheriffs continue to issue these reserve commissions, for the reason that the law on the question has long been settled as to these special deputies being disqualified to sit as jurors while holding commissions as deputies, reserve or regular deputies.

The Circuit Court of Appeals for the Eighth Circuit, in 1905, held that a deputy holding one of these commissions was not a legal juror under the provisions of our statute, as to who* was qualified to sit as jurors. In Robinson v. Territory of Oklahoma, 148 F. 830, the court in its syllabus stated:

“Deputy sheriffs under Oklahoma Statute, Wilson’s Rev. & Ann. St. Okla. 1903, section 3308, which disqualifies sheriffs from performing jury service, applies as well to deputies as to principal sheriffs, and such an officer, when challenged for said cause, is not eligible to sit on a jury in a criminal case.”

In Robinson v. Territory of Oklahoma, supra, the facts are identical with the facts in this case. When the Robinson Case was called for trial, R. A. McCracken was sworn as a juryman, and answered questions touching bis qualifications to' sit as a juror in the case; the juror testified in response to the question: “Are you a deputy sheriff in this county? I have a commission, I am not a regular working sheriff. I have a commission as a deputy sheriff.” The juror was challenged, challenge overruled, and exceptions saved.

Under our statute a deputy sheriff is disqualified for jury service. This protection is granted the defendant, and is absolute, and the court, when a juror is called and is being examined on his voir dire, and it is disclosed by his statement that he is a deputy sheriff, whether regular' or reserved, on its own motion should have excused the juror being examined. It is not the province of the court to ignore the statute and permit deputies to sit on the jury in the trial of a criminal case. It is the duty of the court to see that only legal jurors are impaneled to try a defendant. In this case not only was the court’s attention directed to the fact that jurors Johnson and Fowler held commissions as deputy sheriffs, and that Layton held a police commission, but the defendant challenged the jurors on the ground they held an officer’s commission, bringing the question directly to the court’s attention, yet the court ignored the challenge and permitted them tO' sit as jurors. If the practice permitted by the court in this case is continued, it will strike at the very foundation of our jury system, as it is a clear violation of our statute. In Robinson v. Territory of Oklahoma, supra, the court, in discussing the question of the jurors being disqualified, stated:

“Section 3308, Wilson’s Rev. & Ann. St. of Okla. 1903, disqualies sheriffs from performing jury service. This disqualification is the expression of a wise public policy. The sheriff is a public officer.”

Section 7630, O. S. 1931 (19 Okla. St. Ann. § 547), provides for a sheriff appointing such a number of deputy-sheriffs as the business of his office may require; the appointments to he approved by the county commissioners. The sheriff is also made responsible for the acts of his deputies, making the sheriff and his sureties responsible for the acts and omissions of his under-sheriffs and deputies, and also- persons deputed to do particular acts.

Every reason of public policy which disqualifies the sheriff for jury service appertains to deputy sheriffs, and! the latter falls not only within the reason of the rule disqualifying the former but within the letter of the statute disqualifying sheriffs. Within the purview of this statute we hold that the trial court erred in overruling the defendant’s challenge to the jurors Johnson, Fowler, and Layton, as the record clearly shows that Johnson and Fowler were deputies and disqualified to sit as jurors in a criminal case.

For reasons herein stated, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FRED HOUSTON v. STATE.
    No. A-9181.
    Oct. 15, 1937.
    (72 Pac. 2d 526.)

      > O. A. Brewer, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

When the case was called for trial, the defendant filed a motion to quash the panel of jurors on the ground that they were not drawn, selected, and certified according to law; that the said jurors do not represent a general distribution in Choctaw county, and were not selected from the various municipal townships of the county in proportion to the voting strength of said township. Testimony was taken in support of his motion to quash the panel, which showed that the jury commissioners in making up the list of jurors for the term gave their names and post office address, but did not specifically state the precinct in the county from which the juror was selected. Motion to quash was overruled; exceptions reserved. A demurrer was filed which was overruled, and defendant duly excepted.

The testimony on behalf of the state is brief and ■shows that Pearl Armstrong, a, negro woman living near where the defendant lived, was the owner of one black female hog, commonly spoken of as a sow, weighing about 300 pounds; that the hog was missing, and Pearl Armstrong went to the defendant and accused him of butchering the hog. He denied this, and became very indignant. Later, officers went to his place and talked to him about the hog, and he advised the officers he had not butchered any hogs and had nothing to do with the sow. Later the officers searched the place and defendant admitted he had butchered a hog, but said it was his own, and finally conducted the officers to the place near his home where the meat was buried, which was taken up by the officers and turned over to a party who delivered the meat to Pearl Armstrong. Pearl Armstrong testified that the nose of her sow that was missing had a scar on it, and she identified the head by that scar. The defendant denied he told the officers he had not butchered any hogs, but that he had not butchered the Armstrong hog. At the place where the officers found a hog had been butchered, they also' found black hair of a hog. The foregoing is the substance of the testimony.

The defendant has assigned nine errors alleged to have been committed by the trial court which he deems sufficient to< warrant the court in reversing his case. In his third assignment he states that the court erred in overruling his motion to quash the panel of jurors; the court holding the jurors were selected and impaneled according to law.

Section 797, O. S. 1981 (38 Okla. St. Aun. § 2), relating to jury commissioners, in part, provides:

“Each jury list shall be made up of names of persons from the various municipal townships in the county m proportion, as nearly as practicable, to the voting strength of such township.”

The proof shows that the list of jurors made up by the jury commission gave the name of the juror selected and his post office address, but did not mention the municipal township in which the juror lived.

In Maddox v. State, 12 Okla. Cr. 462, 158 P. 883, in the third paragraph of the syllabus, this court stated:

“A substantial compliance with the forms provided for by law for drawing and serving jurors, is sufficient.”

In the fourth paragraph of the syllabus, the court further stated:

“A challenge to the panel of jurors can be founded only on a material departure from the forms of law providing for drawing and summoning jurors, or the intentional omission of the sheriff to summon one or more of the jurors drawn; and, to entitle a defendant to. successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to' have caused the defendant to' suffer material prejudice.”

To the same effect is Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58. Many other cases might be cited, but we deem tbe citations above sufficient, and bold that tbe jury commission substantially complied with tbe terms provided by law for drawing and service of jurors when it made up a list giving tbe name and post office address, and tbe court did not err in overruling tbe motion to quasb tbe panel.

. Tbe defendant next insists that tbe court erred in overruling bis demurrer to tbe information. We have examined tbe information, and without extending this opinion by citing authorities to support our bolding, we find that tbe information correctly advised tbe defendant the charge be was required to meet in plain and concise language. No' error was committed by tbe court when be overruled tbe motion for a new trial.

Tbe next question raised by tbe defendant is that tbe court erred in failing to' find the verdict and judgment contrary to law and the evidence, especially in tbe instructions to tbe jury and tbe question therein involved. We have carefully examined the instructions, and after considering the same we hold that the instructions taken in their entirety correctly advised tbe jury as to the law applicable to tbe facts.

Tbe next and only question raised by the defendant is that tbe evidence is insufficient to sustain tbe verdict and judgment. There is a slight conflict in the testimony, which is a question for the jury to' determine. In Tillery v. State, 2 Okla. Cr. 226, 214 Pac. 198, this court, in the second paragraph of the syllabus, held:

“When tbe sufficiency of tbe evidence is challenged, and tbe evidence as a whole does not satisfactorily or conclusively convince tbe appellate court of the guilt of tbe accused, tbe verdict will not be set aside on tbe ground of insufficiency of tbe evidence where, as in this case, there is some substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the jury.”

Where the evidence and reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. 2d 954.

In this case the testimony shows that the prosecuting witness’ sow was missing; that she had reason to believe the defendant had butchered her; when the defendant was approached by the prosecuting witness he denied he knew anything about the hog, that he had not butchered any hogs, that he had hogs of his own, and that he had not butchered the prosecuting witness’ sow. Later on he went with the officers and dug up some hog meat which the officers turned over to the prosecuting witness, Pearl Armstrong. Pearl Armstrong testified that her sow had a mark on her nose where she had struck it one time, and that the head that was turned over to her by the officers with this meat was the head of her sow, as it had the scar on it like her sow had.

While there is a conflict in the testimony, there is sufficient testimony to warrant the jury in returning its verdict of guilty.

The defendant was accorded a fair and impartial trial. The jury was correctly advised as to the law applicable to the facts. There are no errors in the record warranting this court in reversing the case. The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    ERNEST LYNN v. STATE.
    No. A-9156.
    Oct. 22, 1937.
    (72 P. 2d 846.)
    Cornelius Hardy, Stanley Cunningham, John S. Bat-son, Ratliff & Clark, Mathersi & Mathers, and Newman & Phillips, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. D. French, Co: Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information, in Johnston county, with the crime of grand larceny; was tried, convicted, and sentenced to serve a term of two years in tbe penitentiary, and bas appealed.

It becomes necessary to review but one of tbe errors presented by tbe defendant; that tbe evidence was insufficient, and that the court erred in denying- defendant’s motion for an instructed verdict of not guilty.

Tbe defendant, A. J. Jarman, and R. M. Jarman, were jointly charged with tbe larceny of a mower, tbe property of J. C. Deboard, of tbe value of $90, on tbe 25th day of July, 1935. A severance was granted, and tbe defendant, Ernest Lynn, was tried alone.

Tbe prosecuting witness, J. C. Deboard, owned a farm in Johnston county, Obla. Tbe defendant was a resident of Marshall county, living at a distance of 20 miles from where Mr. Deboard lived. On the evening of tbe 24th of July, 1935, the mower in question was left by those employed by Mr. Deboard in a meadow adjoining bis place; on tbe morning of tbe 25th of July, tbe mower was gone and an examination revealed that an automobile, with a 2-wheeled trailer, bad driven to tbe place where the mower was left and that the mower bad been loaded on tbe trailer and carried away. About 10 days thereafter, tbe sheriff of Johnston county and tbe sheriff of Marshall county found tbe mower in a secluded spot of tall Johnson grass and sunflowers near the home of defendant in Marshall county.

Tbe co defendants, A. J. Jarman, and bis son, R. M. Jarman, who were indicted jointly with tbe defendant, resided about one mile south of defendant’s residence, and in close proximity to where tbe mower was found. There is no conflict in tbe testimony that a car belonging to tbe defendant, and his trailer, were used to convey the mower from Johnston county to Marshall county, and that the codefendants, A. J. Jarman and R. M. Jarman, were the parties who- drove the car and took the mower from Johnston county and left it in the high grass and weeds near the home of defendant, and on land that he had rented to another party on the shares for the year of 1935. The sheriff of Johnston county, and one of his deputies, upon receiving information as to the identity of the car used in taking the property, went to Marshall county for the purpose of trying to' locate the stolen property. They first visited the sheriff of Marshall county, and, in company with him and his deputy, went to the home of defendant. They first found there the trailer that had been used to convey the mower, and, after conducting a search, the mower was found in the field near defendant’s home, but was not in sight of and could not be seen from his house, by reason of the high weeds and Johnson grass. The officers talked to the defendant, who was at home when they arrived. He immediately denied any knowledge of the mower or its whereabouts. He offered to assist them in trying to locate it; told them he had loaned his car and trailer to' his codefendants, A. J. Jarman andl R. M. Jarman, on the evening of the 25th of July, who stated to him that they were going to1 Johnston county to get some kegs. The defendant, upon being shown evidence or marks on the trailer that indicated that a mower or other machinery had recently been loaded thereon, remarked, “Damned if it don’t look like it,” and he immediately told the officers he would go see Mr. Jarman and try to get him to tell him where the mower was if he had taken it, and that if he could not get him to tell he would get Mrs. Jarman to find out and tell him, and that he would deliver it to them. Before the defendant had an opportunity to talk to Jarman, who had been placed in jail, the search was conducted; the defendant going with the officers at the time the search, was made, and the mower was found by one of the officers at the place above indicated. The state contends that the defendant made certain contradictory statements in his conversation with the officers before the mower was found, but a careful reading of all the testimony reveals that his testimony was just about as above stated. The testimony of the state shows that a car came by a neighbor’s house about 4 a. m., on the morning of the 26th of July, which was recognized as defendant’s car, this being the morning after the mo wer was stolen, and that this same car, a little later, came back and stopped at the home of Mr. Jarman. The evidence of the defendant was that the car was returned by Mr. Jarman about 7 a. m., on the morning of the 26th, and that he did not get the trailer for several days thereafter, as the same had been left at another place for the purpose of being repaired.

There was a conflict in the evidence as to how the car had proceeded in going to the place where the mower had been left, the evidence of the state attempting to prove that it went directly by the house of defendant, while that of the defendant showed that it had crossed a fence south and come into< the field some distance from the defendant’s home. The evidence of both the state and defendant showed that the mower was in a place where it could not be seen from the house of defendant. It was finally found by the officers only after a careful and painstaking search. The defendant, when first approached by the officers, denied all knowledge of knowing where it was. There is not a line of testimony to' show that he had any personal possession of the same, or that he at any time exercised any control or supervision over it. It had been stolen ten days prior to the time it was found; yet there is no evidence of the use of the mower in any way by the defendant. He told tbe officers at tbe very first opportunity when be was approached of tbe lending of tbe car to bis codefendants, A. J. Jarman and bis boy, E. M. Jarman, on tbe afternoon that tbe mower was stolen, and offered to assist them in any way that he could in locating tbe property. Tbe evidence showed that defendant often loaned his car to others.

We do not think tbe finding of tbe mower near defendant’s home, in a place where it was concealed by tall weeds and grass, where it could not be seen from bis home, in tbe absence of any testimony that he knew it was there, or bad exercised any supervision or dominion over it, would be sufficient to justify tbe jury in tbe inference that it was in bis possession, as it must have done in finding tbe defendant guilty. His declaration that be knew nothing about tbe mower, if true, was all that was necessary upon bis part. If he did not know it 'was there, be could not be expected to explain bow it came there. His explanation of lending bis car to his codefendants, A. J. Jarman and E. M. Jarman, is in no way disputed. There is no testimony tO' show any conspiracy between the defendant and the Jarmans to steal tbe mower, and, as a whole, tbe testimony fails to connect tbe defendant with tbe larceny of tbe mower.

Wharton on Criminal Evidence, p. 660, § 758, says, in reference to tbe possession of stolen property, that before larceny may be inferred four points must be considered: (a) Tbe possession must be personal; (b) must be recent; (c) must be unexplained; and (d) must involve a distinct and conscious assertion of property by tbe defendant. Tbe facts in tbe instant case fail in three of tbe above instances. There is no proof to show tbe personal possession of tbe property, nor a distinct and conscious assertion of dominion over tbe property, and at the very first opportunity, the defendant, if he did not know of the whereabouts of the property, explained all he knew about it. When this was done the law demanded of the state proof of his connection with the actual larceny of the property, and this the state failed to do-.

The rule of law announced by this court in many decisions is that the possession of property recently stolen, unexplained, is a circumstance to be considered and given such weight as the jury may see fit. Cox v. Territory, 2 Okla. Cr. 668, 677, 104 Pac. 378; Blumhoff v. State, 29 Okla. Cr. 4, 231 Pac. 900; Chrisman v. State, 22 Okla. Cr. 52, 209 Pac. 656. This is the general rule where the question of possession is undisputed; but where the question of possession is denied, the general rule is stated in Under-hill on Criminal Evidence, p. 361, where it is said:

“Not only must the possession be recent, but it must be personal, exclusive, and with a distinct, implied or express assertion of ownership. If these essentials are not proved, a conviction based on the fact of possession must be set aside. A mere constructive possession is not enough. The accused will not be presumed to have stolen articles which he does not know he possesses. If other persons have equal right and facility of access with him to a room, trunk or closet where stolen goods are discovered, possession, not being exclusive or personal, is of no value as evidence.”

In the case of People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55, the court says:

“The assertion that the recent possession of stolen goods in a case of larceny raises a presumption that they were stolen by the possessor, is not strictly accurate. The cases in which that has been said are those in which it also appeared that the possessor acquired the possession by his own act, or with his own concurrence or knowledge. If it had been shown in this case that the defendant placed these hides in his barn, or caused them to be placed there, or knew that they were there, or exercised any acts of possession over them, the case would be essentially different from what it now is. His explanation ‘that he knew nothing about the hides being in his barn was the only one which he could give unless he did know something about their being, there; and the only way to prove his explanation false was to prove that he did know something about it. But there is no evidence which tends to prove that he did. If true, his explanation was as satisfactory as any ever given of the possession of stolen property ; and it was incumbent on the prosecution to prove it untrue before asking a conviction.”

And the court further says:

“Burrill states the law as follows: ‘The possession must be exclusive. A finding of stolen property in the prisoner’s house or apartment, is equally competent in evidence against him, as a finding upon his person. But the house or room must be proved to be in his exclusive occupation. If the property were in a locked-up room or box, of which he kept the key, it would be a fair ground for calling upon him for his defense. But if it were only found lying in a, house or room in which he lived jointly with others equally capable of having committed the theft, it is clear that no definite presumption of guilt could be made.’ We do not think that the bare fact of finding the hides of cattle that had been stolen in the defendant’s barn, which is shown to have been open to anyone who chose to enter it, in the absence of any evidence tending to prove that he knew or had any reason to suppose that such hides were there, sufficient to' justify the inference which the jury must have drawn from it, in order to find the defendant guilty.”

In 36 C. J. p. 871, § 429, the true rule is well cited:

“To render possession personal and exclusive it is not necessary that the property should have been actually in the hands or on the person of accused, or that it should have been in his house or on his premises. It is possible for him to have had personal and exclusive possession, although the property was secreted on another man’s ¡premises or on premises which he and others occupied jointly, or even in a public place, if the property, wherever situated, was under his exclusive personal control. The exclusiveness of this control is the test of possession; for although the property may have been found in premises' of which accused had the exclusive occupancy, yet if other persons had access to the premises and equal opportunity to have concealed the property therein, there was no such exclusive possession in accused as to give rise to the presumption of his guilt. For stronger reasons is this case when the premises were occupied by other persons beside accused.”

In the case of State v. White, 37 N. M. 121, 19 P. 2d 192, 194, the court says:

“There is no evidence that Oscar White had anything but constructive possession of the beef. Possession of the fruits of crime to raise a presumption of guilt of the possessor involves knowledge, dominion, and control, with power of disposal, or voice in the power of disposal, in the alleged possessor. The fact that the beef was found in a shed on a large ranch belonging to the defendant, which shed and ranch was open to the use of others, does not raise such a presumption of law as to the defendant’s guilt, which would justify the conviction of the accused.
“It would be carrying, the rule too far to require one accused of crime to explain the possession of stolen property, when such possession could also, with equal right, be attributed to another. Hence the mere fact of finding stolen property on premises, or any other place, to which many others have free access, without showing his actual, conscious possession thereof, discloses only prima facie contractive possession, and is not such possession as will justify an inference of guilt by reason thereof. The unexplained possession by one of goods belonging to another does not raise the presumption that a larceny has been committed, and that the possessor is a thief; additional evidence is necessary to establish the corpus delicti. Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A. (N.S.) 536; notes in 101 Am. St. Rep. 481, 487, and 68 L. R. A. 48.”

In State v. Drew, 179 Mo. 315, 78 S. W. 594, 596, 101 Am. St. Rep. 474, the court says:

“In onr opinion the mere fact of finding stolen articles on the premises of a man of a family, without showing his actual conscious possession thereof, discloses only a prima facie constructive possesion, and is not such a possession as will justify a presumption of guilt by reason thereof. It is within the common experience that many honest and worthy men have dishonest children and servants, and to indulge in the presumption that because goods are found on their premises which turn out to have ■been stolen, without going further and showing an actual conscious and exclusive possession of such goods in the head of the family, would result often-times in punishing the innocent for the guilty. There is no occasion for pushing the presumption to any such length. Kept within its proper limitations it is a salutary principle and reasonable, but given a latitudinous constructive interpretation it is unreasonable, and would work grave injustice.”

In the case of State v. Sullivan, 34 Idaho, 68, 199 P. 647, 650, 17 A. L. R. 902, the court says:

“The general rule that the possession of stolen property is evidence of guilt is limited by the rule that to warrant an inference of guilt it must be shown that the possession is personal, and that it involves a distinct and conscious possession by the accused. People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55; State v. Drew, 179 Mo. 315, 78 S. W. 594, 101 Am. Rep. 474; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298.
“It would be carrying the rule too far to require one accused of crime to explain the possession of stolen property when such possession could also, with equal right, be attributed to another. Hence the mere fact of finding stolen property on premises, or any other place, to which many others have free access, without showing his actual, conscious possession thereof, discloses only prima facie constructive possession, and is not such possession as will justify an inference of guilt by reason thereof. The unexplained possession by one of goods belonging to another does not raise the presumption that a larceny has been committed, and that the possessor is a thief; additional evidence is necessary to establish the corpus delicti. Sanders v. State, supra; notes 101 Am. St. Rep. 481, and 68 L. R. A. 48.” Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298; Lemon v. State, 89 Tex. Cr. R. 361, 231 S. W. 388.

For the reasons above stated, we are of the opinion that the evidence was insufficient to convict the defendant of larceny of the mower as alleged in the information in’ this case, and the court should have sustained the motion of the defendant for an instructed verdict of not guilty.

The judgment of the district court of Johnston county is therefore reversed, and, unless the county attorney has additional evidence which in his opinion would justify a new trial, the defendant is ordered discharged.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    JOHN B. MILLER v. STATE.
    No. A-9204.
    Oct. 15, 1937.
    (72 P. 2d 520.)

      Ho ward K. Berry, O. A. Cargill, Jr., and W. R. Graal-man, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and LeAvis Morris, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of murder in Oklahoma county, was tried, convicted, and sentenced to serve a term of life imprisonment in the penitentiary, and has appealed.

The first error assigned by the defendant is that the court erred in admitting incompetent and improper testimony, and the giving of certain instructions which dealt directly with the introduction of said incompetent and; improper evidence. This contention is based upon tbe fact that the state in presenting its case in chief introduced evidence of the good reputation and character of the deceased prior to the homicide, and that the defendant had at no time raised this issue, and that the court, in instructions Nos. 18% and 19, instructed the jury with reference to this incompetent and improper testimony.

This question raises an issue which has been before the courts of this country in different forms many times. There is some conflict in the decisions, but the great weight of authority is to the effect that evidence as to the character and reputation of the deceased is not admissible, and the authorities are practically unanimous that the state is not permitted to introduce evidence of the good reputation and character of the deceased in presenting its case in chief, and prior to the time that, defendant has raised this issue in any way.

In the case at bar, the state first put on the witness stand an interne in the hospital, and, second, a peace officer who was called immediately after the killing, and who testified as to* the condition of the premises and the location of the bullet found thereon. The third witness offered by the state, in chief, was Dora Lawrence, who owned and operated the hotel and rooming house where the difficulty resulting, in the death of Herman Frost occurred. She was questioned at length by the state, and during her direct examination, and prior to the introduction of any evidence by the defendant, she was asked:

“Q. Now, you have been acquainted with Herman Frost how long? A. Myself, 12 or 15 years. Mr. Lawrence longer. Q. What was his disposition as to being agreeable? A. Always agreeable. Q. Do you know his general reputation in the community where he resided during his lifetime for being a peaceable citiezn? A. Always. Mr. Berry: We object to that as incompetent, irrelevant and immaterial. It is not in issue in this case. The Court: Overruled. Mr. Berry: Exception. Q. (By Mr. Eberle) You will have to answer the question yes or no. I asked you, do- you know his reputation? Just answer yes or no. A. Yes. Mr. Berry: We interpose the same objection. The Court: Overruled. Mr. Berry: Exception. Q. (By Mr. Eberle) Was that reputation of Herman Frost for being a, peaceable citizen good or bad? A. Good.”

A witness, whose name was E. L. Bond, was placed upon the witness stand on rebuttal by the state, and was asked:

“Q. (By Mr. Morris) What was Herman’s reputation? A. Good. Mr. Berry: That is objected to as being incompetent, irrelevant and immaterial and not in issue in this case. Mr. Morris: If the court please, I understood him to say in his opening statement that he was going to prove that. Mr. Berry: If I did, I didn’t intend to. Mr. Morris: All right, I understood you to say that. I will withdraw the question and that is all.”

A witness, C. L. Godshell, was called by the defense on surrebuttal, and on cross-examination by the state the following evidence was given:

“Q. Were you acquainted with Herman Frost’s general reputation prior to the time of this killing as to being a peaceable citzen? A. I have known Frost * * * Mr. Berry: We object to that as being * * * Q. (By Mr. Morris) A peaceable, law-abiding citizen? The Court: Answer that yes or no. The Witness: Well, yes; he had a good name. Q. (By Mr. Morris) Was it good or bad? A. Well, so far as I know, I never heard anything against him. Q. Well, would you say it was good or bad? A. Well, I would say his reputation, so far as I know, was good. Q. How was it as to being a peaceable citizen? A. I don’t think the man would cause any trouble to' anybody. I never knew of him causing any trouble to anybody.”

The court instructed the jury as to the effect of the above testimony as follows:

“18%. You are instructed that evidence admitted as to the previous good reputation of the deceased as a peaceable, law-abiding' citizen is to be considered by you in connection with all other evidence only for the purpose of ascertaining the state of mind of the respective parties at the time of the homicide, and for the purpose of ascertaining which one of the parties probably began the difficulty, and whether the defendant reasonably and in good faith believed that he wasi in danger of losing his life or receiving great bodily injury at the time of the final difficulty in which the deceased was killed.
“Excepted to by Defendant — Exception allowed. Clarence Mills, Judge.
“19. Certain evidence has been introduced before you for the purpose of showing the reputation of the deceased as a quarrelsome dangerous man. You should consider this evidence in connection with the other evidence in the case, and if you believe that the deceased had the reputa.tion of being a quarrelsome, dangerous man, you may consider that fact in connection with the other evidence in ascertaining whether or not the deceased was the aggressor and brought on the difficulty, and if you believe that he had such reputation and that it was known to the defendant, you may consider that fact in connection with all the other evidence in the case in ascertaining whether or not the defendant reasonably and in good faith believed that he was in danger of losing his life or of receiving great bodily injury at the hands of the defendant.
“Excepted to by Defendant — Exception allowed. Clarence Mills, Judge?’

The state in its brief filed in this case says:

“We concede the general rule in Oklahoma to be, as stated by this court in Coulson v. State, 48 Okla. Cr. 206, 291 Pac. 152, 153, that in the absence of an attack by the defendant testimony as to the good reputation of the deceased as a peaceable and law-abiding citizen is incompetent. However, there are reasons, aside from any question as to the failure of defendant to properly protect hisi objection to such testimony, why the admission of such testimony in this case does not constitute error.”

It is first contended by the state:

“It thus appears that for the second time testimony as to the good reputation of the deceased was admitted without objection, and the defendant is therefore in no position to complain.”

If it be admitted that there was no objection and exception to the offering of this testimony on the last two occasions, yet it cannot be doubted that it was objected and excepted to when it was offered by the state in presenting its case in chief. The third time that proof was made counsel for the defendant objected but did not get to finish his objection until the county attorney said, “A peaceable, law-abiding citizen,” and the court immediately said: “Answer that yes or no.” The court having directed the witness to answer the question, the counsel did not get to make objection, but should have saved an exception. However, from what has been above said, it seems to us that the record was properly saved if the evidence was incompetent and improper.

The state further contends that while the defendant introduced no direct testimony as to the general reputa,tion of the deceased, he did attack such reputation in a different way by seeking to establish a previous turbulent, violent and threatening conduct, attitude, and language of the deceased. It is a sufficient answer to this argument to say that when this evidence was offered by the state the defendant had placed no one upon the stand. It was the first witness for the state who was acquainted with the facts surrounding the difficulty from whom this evidence was obtained on direct examination by the state. There are some authorities which hold that there is an exception to the general rule that where the defendant has offered evidence showing’ the turbulent, violent, and threatening conduct of the deceased, that on rebuttal the state may show the good reputation and character of the deceased, but this is not the rule according to' the overwhelming weight of authority where the evidence is offered by the state before the defendant has offered any testimony to show the facts as above stated. Some cases hold that where the issue of self-defense is made, the state on rebuttal in a homicide case is permitted to' introduce proof of the good reputation and character of the deceased. In the Coulson Case, above referred to, this court has passed upon this identical question. This decision was announced in August, 1930, and the present case was tried in 1936. We quote from that case as follows:

“The principal complaint made is that the court admitted incompetent evidence which prevented defendant from having a fair trial. This contention is directed to evidence introduced by the state of the good character of deceased as a peaceable and law-abiding citizen. The defendant made no' attach at any time against the character of deceased. The issue is thus squarely presented whether or not in a homicide case, where the plea is self-defense, the state may offer evidence of the good character of deceased where his character has not been attacked by defendant. This precise question seems never to have been considered by this court. Where a defendant introduces evidence tending to show the turbulent, violent, and quarrelsome character of the deceased, it is, of course, competent for the state in’rebuttal to show good character in these particulars. However, it is held that, where evidence of bad character is elicited on cross-examination from a witness for defendant this does not justify evidence by the state of good character. Barrett v. State, 86 Tex. Cr. R. 101, 215 S. W. 858. There is some division in the authorities upon the question here presented. A few cases bold that in a homicide case, where the plea is self-defense, and there is evidence in support showing an unprovoked attack by deceased, this authorizes evidence by the state that the character and reputation of deceased was that of a peaceable and quiet citizen, although defendant has not attacked his general character in this respect. 30 C. J. 233, note 45. The leading case supporting this view is. Thrawley v. State, 153 Ind. 375, 55 N. E. 95, 97, where it is said: * * On behalf of appellant no' reputation witnesses were produced to show that the character of deceased for peaceableness was bad. Appellant did not testify, but his defense was that he killed deceased in a hand-to-hand encounter, in the proper defense of his person from an apparently felonious assault by deceased. On rebuttal the state proved the good reputation of deceased for peaceableness. * * * But the evidence of the state in support of the charge against appellant was such an attack upon his character for peace as to> authorize him to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without the state’s consent. So the evidence of appellant in support of the charge against deceased was such an attack upon his character for peace as to authorize the state to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without appellant’s consent. * * *’
“This case was severely criticized in Carr v. State, 21 Ohio Cir. Ct. R. 43, and Kelly v. People, 229 Ill. 81, 82 N. E. 198, 200, 12 L. R. A. (N. S.) 1169, 11 Ann. Cas. 226 in which latter case it was said:
“ “Hie Supreme Court of Indiana, in Thrawley v. State, 153 Ind. 375, 55 N. E. 95, has determined this question the other way, holding that the reputation of the deceased for peaceableness is admissible as original evidence against one charged with murder where self-defense is relied upon. That decision does not appear to be supported by any authority, and we are not impressed with the reasoning upon which the conclusion rests. In Carr v. State, 21 Ohio Cir. Ct. R. 43, in commenting on this case, it is said that the Supreme Court of Indiana is alone in holding such evidence competent. Our own investigation will not justify us in a statement so broad, and we therefore prefer to. limit our observation to this: that it appears to us that the decision in Indiana is opposed to the' great weight of authority on this question/ ”

The Thrawley Case is further criticized in the case of De Woody v. State, 21 Ariz. 613, 193 Pac. 299, 301, where the court says:

“The holding of the Indiana Supreme Court in Thrawley v. State, 153 Ind. 375, 55 N. E. 95, and several other cases decided by that court and cited by counsel for the state, that in murder cases, where the defendant pleads self-defense and introduces evidence for the purpose of showing an apparently felonious assault upon him by the deceased at the time of the homicide, the state may, in rebuttal, prove the good character or reputation of the deceased for peace and quietness, is not the prevailing rule upheld by the great weight of authority. The Supreme Court of Illinois, in Kelly v. People, supra, commenting on the Thrawley decision, said:
“ ‘That decision does not appear to. be supported by any authority, and we are not impressed with the reasoning upon which the conclusion rests.’
“We cannot presume that the evidence of the good character of the deceased had no influence on the deliberations of the jury (17 Corpus Juris, 275), and we are satisfied that the admission of such evidence over the objection of the defendant was reversible error.”

In the case of State v. Potter, 13 Kan. 414, in an opinion by Judge Brewer, who afterwards became a distinguished justice of the Supreme Court of the United States, the court said:

“On the trial and before closing their case the prosecution was permitted over objection to ask witnesses who bad testified that they knew tbe deceased, this question: ‘State if you knew bis general reputation for being a peaceable, quiet and law-abiding citizen.’ And tbe witnesses testified that be was a peaceable, quiet and law-abiding man. No attack was made by defendant at any time during tbe trial on tbe character of tbe deceased, and no attempt to show that be was a quarrelsome or turbulent man. The question then is fairly presented, whether tbe prosecution on a trial for murder may, in tbe first instance, and as a part of their case, show tbe character and reputation of the deceased. We do' not understand counsel for tbe state as claiming that such testimony is admissible in all cases, but only in cases where there is a doubt as to whether tbe killing was done in self-defense, and where such testimony may serve to explain tbe conduct of the deceased and is therefore fairly a part of tbe res gestee. In such cases it is said that tbe authorities bold that tbe defendant may sho w tbe bad character and reputation of tbe deceased as a turbulent, quarrelsome man. iSee, among other authorities, Franklin v. State, 29 Ala. 14; State v. Keene, 50 Mo. 357; Wise v. State, 2 Kan. [419], 429, [85 Am. Dec. 595]; People v. Murray, 10 Cal. 309. And if tbe defendant may show that tbe deceased was a known quarrelsome, dangerous man, why may not tbe state show that be was a known peaceable, quiet citizen? Tbe argument is not good. Tbe books are full of parallel cases. Tbe accused may in some cases show bis own good character. Tbe state can never in tbe first instance show bis bad character. A party can never offer evidence to support a witness’ credibility until it is attacked. Tbe reasons for these rules are obvious. Such testimony tends to- distract tbe minds of tbe jury from tbe principal question, and should only be admitted when absolutely essential to the discovery of tbe truth. Again, tbe law presumes that a witness is honest, that a defendant has a good character, and that a party killed was a quiet and peaceable citizen, except so far as tbe contrary appears from tbe testimony in tbe case; and this presumption renders it unnecessary to offer any evidence in support thereof. No authorities have been cited sustaining the admission of such testimony, and tbe following- are in point against it: Ben v. State, 37 Ala. 103; Case v. State, 46 Miss. [683], 707; Pound v. State, 43 Ga. [88], 128.”

This1 identical question was also upheld in the case of State v. Reed, 250 Mo. 379, 157 S. W. 316. We will not quote from this case, but it upholds the principle here announced.

It will also be noted that Judge Chappell, of this court, wrote a dissenting opinion in the Coulson Case. In this dissenting opinion he relies principally upon the Thrawley Case from Indiana, and the case of Fields v. State, 134 Ind. 46, 32 N. E. 780, upon which the opinion in the Thrawley Case is based. But in this dissenting opinion Judge Chappell says:

“There is no division of authorities upon the question that the state may not introduce evidence of the character of the deceased until the defendant puts the question in issue.”

It will be noted in the case at bar the defendant testifying in his own behalf did not even claim that he shot the deceased in self-defense, but that the gun was accidentally discharged, and that he did not even realize that deceased had been shot. Certainly, under this statement, and under all the authorities, it could not be held that this evidence was admissible. The general rule as to- the admissibility of evidence of this, character is expressed in Wharton on Homicide, § 269, p. 438, where it is said:

“The good character of the deceased is not a subject of proof in a prosecution against another for hilling him, where his character had not been attacked by the defense. And evidence showing the character and reputation of the deceased as a quiet and peaceable man cannot be given by the state in such a case in the first instance as a part of its case.”

This rule is sustained by all the authorities. 13 R. C. L. 916; Underbill on Criminal Evidence, § 324, p. 385; Michie on Homicide, vol. 1, p. 681; Nichols’ Applied Evidence, vol. 4, p. 3192; Ben v. State, 37 Ala. 103; Pound v. State, 43 Ga. [88], 129; Graves v. State, 14 Tex. Cr. App. R. 133; Bays v. State, 50 Tex. Cr. R. 548, 99 S. W. 561; Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1041; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Bloomer v. State, 75 Ark. 297, 87 S. W. 438; Parker v. Commonwealth, 96 Ky. 212, 28 S. W. 500; State v. McCarthy, 43 La. Ann. 541, 9 So. 493, 494; People v. Bezy, 67 Cal. 223, 7 Pac. 643; People v. Hoffman, 195 Cal. 295, 232 Pac. 974. In the McCarthy Case, supra, the court says:

“The character of the deceased. No authority has been cited (and after most diligent search we have not found one) in support of the admission in chief for the state of testimony to show the character and reputation of the deceased. The proposition excluding the testimony comes to us sustained in every instance by unanimous' courts. ‘When not assailed by the prisoner, the character of the deceased is not admissible, although he pleads self-defense, and attempts to establish it.’ Pound v. State, 43 Ga. [88], 89, Ben v. State, 37 Ala. 103; State v. Potter, 13 Kan. [414], 424. In the case just cited, Judge Brewer, at the time Justice of the Kansas Supreme Court, now of the United States Supreme Court, was the organ of the court. Dock v. Com., 21 Grat. [Va.] 909; People v. Anderson, 39 Cal. 703; State v. Bass, 11 La. Ann. 478. We have examined every decision referred to by the authors hereafter mentioned, and have not found anything in Support of the proposition. In every case the verdict was annulled. 2 Bish. Crim. Proc., § 612; 3 Greenl. Ev., § 27; Whart. Crim. Ev., § 83; Whart. Horn., § 625; Best. Ev. § 257. We are constrained to the conclusion that the case must be remanded. We cannot presume that the evidence had no' influence on the deliberation of the jury. Whart. Crim. Ev. 68.”

An exception to the general rule that evidence of the general reputation and character of the deceased is not-permitted, is that it does not apply in cases where self-defense is relied upon, and this exception is upheld in a few cases; but the great weight of authority is that this defense alone does not change the general rule. Certain cases hold that where the defense offers evidence to show that deceased was a quarrelsome, turbulent, or violent and dangerous man, the state may on rebuttal introduce evidence that the deceased was a peaceful, quiet, and law-abiding man; that this is in fact an attack upon his character, and the state on rebuttal has the right to. prove the good character and reputation of the deceased. These authorities hold that no general rule can be laid down for the determination of what shall be held to constitute an attack by the defendant on the character of the deceased, so as to' open the door for rebuttal on behalf of the state, but each case must be decided on its own circumstances and facts. The case of De Woody v. State, supra, illustrates this point, and in a case very similar to the one at bar the court held that the evidence was not of such character as to bring it under the exception to the general rule.

We have examined the authorities cited by the state. All of them uphold the general rule as announced in this decision. They uphold the minority rule heretofore announced, and generally base their decisions upon the Thrawley Case, supra, and which has not generally been followed by the courts of this country. Some of these decisions follow the exception to- the general rule which permits evidence upon rebuttal to be offered by the state where the defense has shown that the deceased was1 a quarrelsome, turbulent, or violent and dangerous man, but not in a single case cited was the evidence offered in chief by the state, as shown by the facts in the instant case. This is illustrated by reading tbe text in Nichols on Applied Evidence, vol. 4, p. 3192, where the rule is announced:

“Sec. 101. The state cannot, as a part of its primary case, offer evidence concerning decedent’s reputation as a peaceable and quiet person.”
“Sec. 102. Evidence on behalf of prosecution as to reputation of deceased for peace and quiet when it has been assailed by accused is not admissible, though defendant pleads self-defense, and attempts to< establish it. However, there is authority apparently to the contrary.”

Then in section 103, it is said:

“The reputation of deceased as a man of peaceable character is competent on behalf of the prosecution after such character has been attacked and put in evidence by defense. It is not necessary that the character of deceased be directly attacked by defendant by evidence as to his general reputation to render admissible on behalf of the state evidence to his good character. ‘No general rule can be laid down for the determination of what will be held to constitute an attack by the defendant on the reputation of the deceased so as to' “open the door” for rebuttal on behalf of the prosecution. Each ease must be decided according to its own facts.’ ”

The cases cited by the state are cited as exceptions to the general rule as above stated under the last section quoted, and as shown do not apply to the facts in the instant case. The cases relied upon by the state are Cody v .State, 23 Okla. Cr. 236, 214 Pac. 201; State v. Todd, 28 N. M. 518, 214 Pac. 899; Pettis v. State, 47 Tex. Cr. R. 66, 81 S. W. 312; Burnett v. State, 34 Ariz. 129, 268 Pac. 611; Greenwood v. State, 51 Okla. Cr. 74, 299 Pac. 248.

From an examination of the authorities, hardly a case can be found in which a judgment and sentence has been permitted to stand where the state as a part of its evidence in chief has proven the good character and reputation of the deceased, and this without the issue being, raised by the defendant, as in the instant case. A careful examination of the facts here show the defense at no time raised this issue. The proof of the defendant and his family only showed that the deceased had been drinking and swearing in his own room, which adjoined defendant’s room, and that he made threats against the defendant. This and other facts proven do1 not, in our opinion, constitute such an attack upon the character of the deceased as to permit the state to offer evidence of his good reputation and character, and especially in its case in chief, as was permitted over the objection of the defendant in the instant case.

The argument that this judgment should be upheld under the harmless error doctrine does not appeal to1 us from the facts in this case. We cannot presume that the evidence of the good character of the deceased had no influence upon the verdict rendered by the jury, and this is especially true considering the instructions given by the court with reference to this evidence. The defendant in this case was given a life sentence.

For the reasons above stated, it becomes unnecessary for us to pass upon other errors assigned as they will not appear upon a retrial thereof.

The judgment of the district court of Oklahoma county is reversed. If the defendant is in the penitentiary, the warden is directed to- deliver him to the custody of the sheriff of Oklahoma county to await further proceedings of the district court of that county.

DAVENPORT, P. J., and DOYLE J., concur.


author: PER CURIAM.

text:
    NEWT EVANS v. STATE.
    No. A-9313.
    Oct. 22, 1937.
    (72 P. 2d 845.)
    Babb & Babb, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of assault with a dangerous weapon, and sentenced to serve a term of one year in the state penitentiary, and appeals.

The record in this case was filed in this court on April 19, 1987. The case was submitted on the record on September 28, 1987, since which time counsel for plaintiff in error has advised the court they did not desire to file a brief. It is therefore assumed that the appeal has been abandoned, or that counsel representing the plaintiff in error has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

The record has been carefully examined, and the examination fails to disclose any fundamental errors. The evidence is sufficient to sustain the verdict of the jury. The case is therefore affirmed.


text:
    ELIJAH LAWSON v. STATE.
    No. A-9310.
    Oct. 29, 1937.
    (73 P. 2d 198.)
    John A. Dorris, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted of manslaughter and sentenced to< serve a term of four years in the state penitentiary, and appeals.

The record in this case was filed in this court on April 19, 1937. The case was submitted on the record on September 27, 1937; no brief has been filed in support of the plaintiff in error’s assignment of errors. The court therefore assumes that the appeal has been abandoned, or that counsel representing the plaintiff in error has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

The record has been carefully examined and the testimony of the state in substance is that the defendant, Elijah Lawson, and Rand Stills lived in houses only a few feet from each other; on the morning of January 5, 1936, two sons of Rand Stills and another neighbor boy went to the door of the house where the defendant was living, and engaged the defendant in a conversation as to Ms saying the boys had been stealing his chickens; that ■Band Stills stepped out of the door of his house, and the defendant picked up a gun and pointed it in the direction, of the Stills house where Band ¡Stills was standing; about the same time 'Mrs. Band Stills came to the door and the defendant fired, inflicting a wound upon the body of Mrs. Stills, from which wound and other: complications which set up Mrs. Stills died.

The defendant went back into the house and Mr. Stills started to a doctor with his wife. The defendant discovering Mr. Stills coming out of his house punched the muzzle of his gun through the window and fired and shot Mr. Stills, inflicting a painful but not a. serious wound. The defendant then left the house with his gun and started in the same direction Mr. and Mrs. Stills were going; the Stills boys saw him going with his gun in the direction their father and mother had gone, followed the defendant and, as he cut across the near way, thinking he intended to catch up with their parents and shoot them again, caught up with the defendant, knocked him down and took his gun away from him.

The testimony further shows there had been no controversy between the defendant and Mr. and Mrs¡. Stills that morning. Mr. and Mrs. ¡Stills did not know what prompted the defendant to shoot.

The defendant in his own behalf admits the Stills boys and a Bobinson boy came to his home and talked to-him about- what he had been telling other people about the Stills boys stealing his chickens, and the defendant told them he could prove it; the defendant then insists that one of the Stills boys tried to1 get hold of his gun, and that he grabbed the gun, and in picking it up it was discharged. He admits after Mr. and Mrs. Stills left their home and started toward town he picked np the gnn and shot again, bnt says he did not intend to hit Mr. Stills, bnt fired to' scare him.

The foregoing is the substance of the testimony.

This court has repeatedly held that the jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954.

There is a conflict in the evidence. This court has held that a conviction, based on conflicting testimony, will not be disturbed on appeal where there is credible evidence sufficient to sustain the verdict and judgment. Carr v. State, 21 Okla. Cr. 377, 208 Pac. 275.

The evidence is sufficient to sustain the judgment. There are no fundamental or prejudicial errors in the record to warrant this court in reversing the case. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts in the case. The judgment of the trial court is affirmed.

HOYLE and BAREFOOT, JJ., concur.


author: PEE CUEIAM.

text:
    LEE MASON v. STATE.
    No. A-9307.
    Oct. 29, 1937.
    (72 P. 2d 845.)
    Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for tbe State.
   PEE CUEIAM.

Tbe plaintiff in error was convicted of having possession of intoxicating liquor, and sentenced to pay a fine of $50, and to be confined in tbe county jail for 30 days, and be appeals.

Tbe record in this case was filed in this court on April 15, 1937. Tbe case was; submitted on tbe record September 28, 1937; no brief has been filed in support of tbe plaintiff in error’s assignment of errors. The court therefore assumes that tbe appeal has been abandoned, or that counsel representing tbe plaintiff in error has reached tbe conclusion there are no errors in tbe record sufficient to warrant a reversal.

Tbe record has been carefully examined, and tbe examination fails to disclose any fundamental errors. Tbe ■evidence is sufficient to sustain tbe verdict of tbe jury. Tbe case is therefore affirmed.


author: DOYLE, J.

text:
    B. D. CHESSER v. STATE.
    No. A-9276.
    Oct. 29, 1937.
    (73 P. 2d 191.)

      Guy Green and Donald, Kearby & Donald, for plaintiff in error.
    -Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding B. D. Chesser guilty of the crime of larceny of domestic animals and fixing his punishment at 2 years’ imprisonment in the state penitentiary.

The information under which the defendant was prosecuted in substance charged that the said B. D. Chesser and Henry Chesser, in Jefferson county on or about the 30th day of March, 1936, did take, steal, and carry away from the possession of E. J. Proctor, without his consent, one white-faced heifer yearling, one black Jersey heifer calf, one black and white heifer, one red bull calf, white spots on face, and one reddish Jersey bull calf, said livestock being then and there the property of said E. J. Proctor.

A severance was granted. Upon his separate trial the jury returned their verdict October 15, 1936.

The principal question in the case appears to- be whether or not the evidence is legally sufficient to support the conviction.

The undisputed testimony offered by the state shows that E. J. Proctor, owner of said livestock, lived four miles west of Waurika, having moved there late in March, 1936, from a place about a mile west, leaving his livestock on the place he moved from. His cattle were marked with a cut out of the right ear Y-shape. Monday evening, he saw his livestock there in the barn lot; that the nest morning five head of the cattle were missing. The stolen livestock were found in the defendant’s possession eight miles east of Bowie, Tex., the ear marks had been changed, the right and left ears on each animal had been cut off, each branded “T,” and the two bull calves had been castrated.

V. C. Estes testified that he lives five miles west of, and three to four miles south of, Waurika. On March 24 he sold a man three yearlings for $47, and received a check on the bank of Bowie, Tex., signed B. D. Chesser, the man said his name was Chesser and the man with him he called Shorty; that three or four days later Mr. Proctor lost his cattle; that he examined the tracks in the lot where Mr. Proctor’s calves' were loaded.

His cross-examination was in part as follows:

“Q. You mean to tell this jury you saw tracks there that hauled the cattle out of your place on March 24th is the same ear1 that hauled Mr. Proctor’s cattle away from his place? A. I don’t know it is the same car, it did look like the same tracks, particularly the same tracks. Q. You stated to the jury and Mr. Eckler that the one that made the tracks at your place on March 24th, made the same kind of tracks at the cow lot of Mr. Proctor on March' 30th? A. Looked like the same tracks.”

Elvin Estes testified that he was present when his father sold three yearlings on the 24th day of March; that the man asked him whose cattle were across the fence from onr cattle and he told him E. J. Proctor, and he asked where Proctor lived; that this was the man who bought his father’s yearlings and he wasi driving a, Ford V-8 pickup.

Charley Proctor testified that he lives six miles west of Waurika, had lived out there 29 years; that when he learned his son’s cattle were missing he went after the sheriff; Mr. Goza could not go but sent Mr. Gardner; they found tracks coming in from the west and down to the barn where the cattle were loaded, then they followed the tracks to' the main highway three miles this side of Ryan; that they found the cattle Friday, on Denton Branch creek, east of Bowie, Tex.; that Mr. Goza, Mr. Gardner, and Mr. Chandler, sheriff of Montague county, were there. Asked if the defendant made a statement there at that time, answered: “They asked him were those his cattle.” He said, “Yes, sir”; asked him where he got them, he studied a little bit and finally said he bought them; asked him where he bought them at, he said he bought them on the highway between Decatur and! Bowie; asked him whom he bought them from, he said he did not know; asked him who was with him and he said nobody; and asked him if he gave a check or' cash and he said, “No, I never gave any check, I gave the cash, gave the money.”

He further testified that the defendant said he cut the ears off the cattle and that he castrated one; that he did not know whether he did it that night or the next morning.

L. B. Gonza, sheriff of Jefferson county, testified that he was called to Mr. Proctor’s to look at some car tracks, and they found what he took to be a pickup track; that no1 one was living on the place then; that he tracked the car to the first lane going south, then through Mr. Stout’s place, a mile to the south, there they turned in on old 81 highway; that they found the cattle in Montague county, Tex., five or six miles from Bowie, that the defendant came up and he asked him if he knew who' he was; the defendant looked at Mr. Chandler and said, “I guess you are the law from Oklahoma”; he said, “Yes, sir, I am,” and asked him about the calves; that he told him whatever he said might be used against him in court and he did not have to tell him unless he wanted to. The defendant said he bought the cattle out of a truck on the highway between Decatur and Bowie, that he had been to' Fort Worth, selling some cattle and met this fellow on the road with a load of cattle, and bought five head from him; he asked him what he paid, he said “$35,” he asked him if he gave a check and he said, “No,” he gave him cash, and said he did not get a bill of sale; that he noticed the two- hull calves had been worked on and he asked the defendant if he did that, and he said he did. He asked him if he marked the ears and he said he did.

He further testified that he looked at the car tracks where some cattle bought of Mr. Estes were loaded and they looked like the tracks in the Proctor barn lot.

He testified that he examined the place where the cattle were stolen from, found where they backed up the pickup and loaded the cattle, they let the end gate down on a big rock; the end gate had black paint, and this rock had black paint on it and showed to be off the end gate where the cattle trampled and left an impression where the paint came off the end gate on the rock; that he checked Henry Chesser’s car and the end gate was scratched.

Herman Chandler testified that he was sheriff of . Montague county, Tex., knows the defendant, B. D. Ches-ser, had occasion to go to one of his pastures, eight and one-half miles east of Bowie, on Denton creek, to' see about some cattle; that after they drove the five calves up the defendant came by. He said to him: “You have some calves here, Mr. Chester, claimed by this man.” Defendant said, “I can explain how I came about with them,” and said he bought them down close to Bhome, out of a truck. Rhome is between Bowie and Fort Worth, below Decatur. He said the man was: driving a Dodge truck, but he did not get his name; that he paid him the money, $50 in cash; that Mr. Miner brought the cattle back and he came with them to the Proctor place where the cattle were taken; that when they were turned out three of the calves went to their mothers to suck.

Ellie Miller testified that he was deputy sheriff of Jefferson county; that he had occasion to go to Montague county, Tex., to look for Proctor’s cattle; that they found them on Denton creek, northeast from Bowie; when they put them in the pen the defendant drove up; Mr. Chandler, sheriff of Montague county, asked him where he got the cattle; he said he got them off a truck on the highway between Bowie and Fort Worth; they asked him wlm did he get them from, he said, “I don’t know, just a. man in a truck,” and they asked him whether he was a big fellow or a little fellow and he said, “I don’t know”; they asked him, “Did you mark these calves?” and he said, “I did.” They then asked him where the ears were and he said he did not know; they asked him if he had castrated any of them, he said, “I did”; they asked him where he was when he did that, and he said he did not know.

When, the state rested its case, the defendant demurred to the evidence for the reason the evidence wholly fails to prove facts sufficient to show the defendant committed the crime charged against him, and moved the court to direct the jury to- return a verdict of not guilty. The demurrer and motion were overruled. Exceptions allowed.

The defendant did not offer himself as a witness on his own behalf, but offered considerable evidence tending to prove an alibi.

Several witnesses testified that the defendant, B. D. Chesser, was at the stockyards at Fort Worth at 9:30 p. m. on March 30, 1936, and was in Fort Worth the next morning.

Several witnesses qualified as character witnesses and testified that the defendant’s general reputation in the community where he lives as being a peaceful law-abiding citizen was good.

At the close of all the evidence the defendant again interposed a demurrer to the same and moved the court to direct the jury to return a verdict of not guilty, for the reason that the evidence is wholly insufficient to show that the defendant committed the crime charged against him.

Counsel for appellant contend that the court erred in overruling the demurrer and motion for directed verdict of not guilty, because the evidence was not sufficient to support a conviction, and in the brief state:

“The evidence wholly fails to place B. D. Chesser in ‘juxtaposition’ to have committed the crime of larceny, and it fails to connect him either directly or indirectly therewith, or that he aided or abetted in any manner in the commission of the offense, or that he knew that any property had been stolen, and, therefore, the fact that he was found in possession of stolen property is not any proof1 of defendant’s guilt, and especially in view of the fact that defendant explained to officers, when he was first questioned, that he purchased same from a man at a point in Texas, stating amount and conditions under which purchase was made, so' as to absolve him from any connection with offense charged.”

We have considered the record in its most favorable light to appellant, and we cannot agree with this contention. It is well-settled law in this state, if there is evidence to support the conviction, this court will not weigh the sufficiency of the same to sustain the verdict.

There is no' dispute with regard to the ownership of the cattle, nor that they were stolen, and it is undisputed that the stolen cattle were in appellant’s possession soon after they were stolen.

Evidence of possession by the defendant of the property stolen is always admissible as a circumstance tending to show the guilt of the accused. It has been uniformly held by this court that the possession of the property by the defendant soon after the commission of the alleged crime is merely an evidential fact tending to establish guilt which should he submitted to' the jury, to be considered in connection with all the other facts and circumstances disclosed by the evidence.

In case of Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560, 563, it is said:

“The possession of property, recently stolen, is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection, with the other evidence in the case. Mr. Bishop says:
“ When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness! or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.’ 2 Bish. New Cr. Pro. par. 740.
“A question merely of fact is presented by the evidence, dependent wholly upon the credibility of the witnesses and the weight of their evidence. There could be no case suggested presenting a matter more proper for the decision of a jury. The jurors are the sole judges of the credibility of the witnesses who- testify before them; and they are not bound to, nor can they be compelled to, credit the testimony of any witness, whether contradicted or not. When a jury returns a verdict of guilty in this character of a case, it indicates that the explanation of the defendant’s possession, no matter how plausible, was not believed by the jury; and, unless, upon a fair consideration of all the facts and circumstances in evidence, it appears that the jury were not governed by the evidence in their finding, the verdict will not be disturbed on the ground of insufficiency of the evidence.”

In Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661, 665, this court said:

“The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to' its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict. Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110; Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560; Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726; [Spann v. State, 19 Okla. Cr. 9, 197 Pac. 531]; West v. State, 19 Okla. Cr. 355, 198 Pac. 99.”

And see Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337; Jamison v. State, 59 Okla. Cr. 62, 56 P. 2d 905; Drew v. State, 61 Okla. Cr. 48, 65 P. 2d 549; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; Maples v. State, 59 Okla. Cr. 324, 57 P. 2d 963.

It is a general rule that the defendant cannot give his own declarations in' evidence, but this rule is otherwise if the statements are a part of the res gestae..

At the common law, when stolen goods were discovered in possession of a party recently after being stolen, what he said in explanation of his possession of the property immediately upon its discovery with him and before he had time to concoct a story is a part of the res gestee, and admissible as such.

Mr. Bishop says:

“The discovery of the stolen goods in the possession of the defendant being a fact in the case, the doctrine of the res gestee teaches that what he said in connection with this fact, particularly on its being made known to him, is admissible on either side, especially if then he is directly or by implication charged with the theft. If such explanation appears to the jury reasonable, and it is not shown by the prosecutor to- be false, its weight in the scale for him will be very considerable; but if it appears unreasonable, or especially if it is shown to be false, it will bear against him heavily.” 2 Bishop, New Crim. Proc. par. 746.

In the case of Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726, this court held:

“In a prosecution for larceny, what the defendant said in explanation of his possession of a part of the stolen goods, immediately upon its discovery with him, is a part of the res gestse, and as such admissible in evidence in his favor as well as adversely to him.”

To the same effect is the holding in the following cases: Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782; Smith v. Territory, 14 Okla. 518, 79 Pac. 214, 218.

What the defendant said at the time when found in possession of the stolen livestock, relating to and explanatory of his possession, was admissible in evidence in his favor asi well as adversely to' him.

Originally from the very nature of the case the fact of possession of property recently stolen is generally accompanied by other corroborative or explanatory circumstances of presumption. If the defendant secreted the property, if he cannot show how he became possessed of it, if he gave false, incredible or inconsistent accounts of the manner in which he acquired it, or that it had been sold to him by a stranger, if he has attempted to obliterate from the stolen property marks of identity, or ownership, these and all like circumstances are properly considered as throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for.

The defendant did not testify, nor deny any of the incriminatory testimony produced against him.

The evidence for the state as to appellant’s explana,tion of his possession of the property, at the time of his arrest, was that he made some statements to the effect that he bought the livestock from a stranger on the highway between Bowie and Decatur, and paid $35 in cash for the same; that be also stated that he bought the stock on the highway near Bhome, between Decatur and Fort Worth, and paid $50 for it. He also' admitted that he had obliterated the ear crop marks of the owner by cutting off the ears of the livestock in question.

The truthfulness of an explanation of the possession of stolen property, although not contradicted, must be determined by the jury.

It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

Under all the circumstances we believe that the jury were justified in concluding that appellant was implicated in the original taking of the stolen livestock, and that the same were not purchased in good faith. In the opinion of this court, there was sufficient evidence to' warrant the jury in returning a verdict of guilty, and, the jury being the tribunal upon which by our Constitution and laws is especially imposed the duty of weighing, the testimony, and having so weighed the testimony and found against the defendant, it is not the province of this court to disturb' their verdict.

It is also contended that the court erred in giving two certain instructions, and in refusing to' give requested instructions.

No authorities are cited in support of the argument made. The instructions given by the court fairly submitted the law of the case. The court- instructed the jury that, unless they believed beyond a reasonable doubt that the defendant, either acting alone or in conjunction with another, stole the property in question, they should acquit, and that, when the fact of the theft had been shown, and the question was whether or not the defendant committed it, his possession, if they found, beyond a reasonable doubt, he had possession of the property alleged to have been stolen, at a time not too long after the stealing, is a .circumstance for the jury to consider and weigh in connection with all the other facts and circumstances in the case. And the court correctly and fully instructed on the law of circumstantial evidence, and it was not error to refuse a more specific instruction in reference to the possession of property recently stolen.

Finally, it is contended that certain remarks of the county attorney in his opening and closing arguments before the jury in the case were improper and prejudicial.

It appears that in the opening, argument he used the following language:

“They argue about the marks made by the automobile or truck in this case, gentlemen, if that was not so why didn’t the defendant offer some testimony about that? By Mr. Donald: To which the defendant objects. The Court: Overruled, exception allowed. He didn’t know1 where he bought them or who he bought them from, or what he paid for them down there east of Bowie. Ellie Miller testified to you, when the defendant was: talking about these cattle, he did not know about these calves, what he knows, gentlemen, won’t help him in this case, why did he make that statement at that time. Why couldn’t they contradict the state’s testimony, but not one place do they do that, if this defendant is innocent in this case why, I will ask you again, why did he make the statement to the officers that he made at that time out there, each and every one in the court listening to what they had to say, they try to show prejudice on the part of the sheriff in testifying in this case. That is his home, we subpoenaed him up here and he had the right to come up here and testify in this case or anywhere else.”

And used the following language in his .closing argument:

“Where did the defendant get possession of those cattle, did he just happen to get them, did that just happened, and not up to this time has there been one single iota of evidence, other than his character witnesses. Why didn’t they have Rice Russell testify to his good character. He did not say what the officers said wasn’t so, not one word at any time. Why didn’t they use the other boy that rode up in the truck. Why they wouldn’t get on this stand and dispute or contradict the evidence of Mr. Proctor and his father, the evidence testified to by them in regard to the defendant’s statements at that time. Read: the instructions given you by the court as to possession of recently stolen property, there is not one bit of evidence to deny this. The defendant offered no proof whatsoever. That is, you should demand an explanation, no explanation given of that by the defendant whatsoever. I ask you to read instruction No. 7. In these instructions, when you get to your jury room, there is no evidence insinuating he is not guilty. Mr. Donald: That is objected to by the defendant as placing the burden upon the defendant. The Court: They won’t take his statement. Mr. Eckler: Disregard that gentlemen, if you don’t find that in the evidence and in the instruction offered. And I say again there is no evidence offered to contradict the state’s evidence in this case.”

The record does not contain the arguments of counsel except the above excerpts.

Our Code, § 3068 (22 Okla. St. Ann. § 701), is the section which permits one who is accused of crime to waive his privilege of standing mute and allows him to testify as a witness in his own behalf. The section concludes with this language:

“The person charged shall at his own request, but not otherwise, be a competent witnéss, and his failure to make such request shall not create any presumption against Mm nor be mentioned on the trial; if commented npon by counsel it shall be ground for a new trial.”

It is contended that the statement of the county attorney was equivalent to saying that the defendant had failed to take the stand to testify in his own behalf.

We cannot agree with counsel’s contention in this respect. Fairly interpreted, it was an assertion that there had been no evidence controverting that presented by the state. It was in effect a comment on the fact that testimony of witnesses for the state had not been contradicted.

In McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345, it is held:

“Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

In Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646, 665, it is said:

“The sole object of all argument is the elucidation of of the truth, greatly aided in matters of fact as well as in matters of law by full and fair forensic discussion. Argument may violate ethics and not violate law. It may be improper, but not illegal. Improper remarks by the prosecuting attorney in the argument do not require a reversal, where they appear to be strictly in reply to allusions of counsel for the defendant.”

In the case of Miller v. Com., 153 Va. 890, 149 S. E. 459, 68 A. L. R. 1102, the Virginia Supreme Court of Appeals held:

“A statement made in argument by the prosecuting attorney, that no witness has gone upon the stand to deny statements which certain witnesses testified to have been made to them by accused, is not within the inhibition of a statute permitting one accused of crime to testify as a witness on his own behalf, but providing that his failure to testify shall not be the subject of comment by the prosecuting attorney.”

In People v. Donahoe, 198 Ill. App. 1, affirmed in 279 Ill. 411, 117 N. E. 105, it is held that the state’s attorney in a criminal case may properly comment on the fact that the testimony of witnesses for the prosecution has not been contradicted, even though the defendant alone was in a position to contradict or dispute such testimony.

In McDonald v. State, supra, we said:

“The statute, section 3068, supra, is comprehensive in the extreme and this court will not enlarge nor extend its provisions so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in his behalf. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the state’s evidence by proof other than that which might be given by the defendant personally. Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644; McDaniel v. State, 35 Okla. Cr. 425, 250 Page 804; Soper v. State, 22 Okla. Cr. 27, 208 Pac. 1044.”

It is our opinion that the country attorney did not exceed his privilege.

Upon a consideration of the entire record, we find no injustice done to the defendant and nothing that would warrant us in disturbing the verdict.

The judgment appealed from is accordingly affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.