text:
    TURNER RUBEN ELLIS v. STATE.
    No. A-10819.
    March 24, 1948.
    Rehearing Denied June 9, 1948.
    (194 P. 2d 229.)

      Archibald Bonds, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Chester Norman, County Atty., and W. J. Crump and Chai Wheeler, Asst. County Attys., Muskogee County, all of Muskogee, for defendant in error.
   BAREFOOT, P. J.

Defendant, Turner Ruben Ellis, was charged jointly with Roy Roberts and Floyd Kent Jarrard in Muskogee county with the crime of rape in the first degree. A severance was granted, and defendant was tried, convicted, and by the court sentenced to serve a term of 20 years in the State Penitentiary, and has appealed.

This is a companion case of that of Roberts v. State, 87 Okla. Cr. 93, 194 P. 2d 219. The facts are identical with the facts in that case, as they arose out of the same transaction, and it is, therefore, unnecessary to here restate them. The evidence is practically the same as in the Roberts case, with the exception that the codefend-ants Roy Roberts and Floyd Kent Jarrard did not testify in this case.

Practically all of the questions presented in the brief of defendant have been passed upon in the Roberts case. The question of venue is fully discussed in that case. Defendant sets out certain questions of the assistant county attorney, which he claims were leading. Some of these questions were leading, but they were asked upon cross-examination. There is nothing in these questions that would in any way prejudice the substantial rights of the defendant, and justify the reversal of this case.

It is also insisted that the state did not prove that the prosecuting witness was not the wife of defendant. It is true that this exact question was not asked, but other questions were asked .from which it could be found that the relationship of husband and wife did not exist. Many witnesses were asked if they knew the prosecutrix, “Miss Sena Taylor”; and the prosecutrix was asked: “You are Miss Sena Taylor, is that right?”, and her reply was “Yes, sir.” The fact that the prosecutrix was not the wife of the accused may be proven by circumstantial evidence, and there were many circumstances in the record Avhich would show that the relationship of husband and wife between the prosecutrix and the defendant did not exist. The defendant himself when testifying referred to the prosecutrix as “Sena Taylor” and said that he did not know the prosecutrix. He admitted making two trips into the community where she had lived for the purpose of finding out about her character. He also testified that it was Ms understanding that be was to pay ber money, but that sbe did not tell bim so.

The evidence also revealed that tbe three defendants acted conjointly and assisted one another in consummating the crime of which they stood charged. Under these conditions, it would be immaterial whether she was or was not the wife of this particular defendant, or of either of the defendants. In 44 Am. Jur. § 29, p. 919, under the subject of rape, the rule is stated:

“It is too plain for argument, however, that the privilege of the husband is a personal one. Even though in marriage the wife has given up her body to her husband, she is not to be by him prostituted to another.”

In the case of Johnson v. State, 20 Okla. Cr. 196, 201 P. 1006, this court announced this principle of law, where it is said:

“Where the evidence shows, or tends to show, that the defendant was present aiding and assisting others in committing a rape by force and violence, overcoming the resistance, of the female, a conviction will be sustained, even though he did not personally have intercourse with her.”

Defendant discusses in his brief certain statements made by the assistant county attorney in his opening statement to the jury, and also in his closing argument. We have carefully examined these statements, and while it may be said that the reference made to the other two defendants having been tried and found guilty was not proper, yet, in view of the record in this case, this error was not sufficient to reverse this case.

We find that in the Roberts case the jury assessed the punishment at 15 years in the penitentiary, wMch was the minimum under the statute, and in this case the jury found the defendant guilty and left the punishment to the court, and the court assessed a punishment of 20 years in the penitentiary. We find no facts which in our opinion would justify a greater punishment of this defendant than that assessed in the Roberts casé. The evidence is identical. We are, therefore, of the opinion that justice demands that the punishment assessed in this case be reduced from 20 years in the State Penitentiary, to 15 years in the State Penitentiary.

As so modified, the judgment of the district court of Muskogee county is affirmed.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    ORBIE GUTHRIE v. STATE.
    No. A-10849.
    June 9, 1948.
    (194 P. 2d 895.)

      Cargill, Eagleton & Cargill, Laynie W. Harrod, Sid White, and Jess L. Pullen, all of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Orbie Guthrie, was charged by an information filed in the district court of Oklahoma county with the crime of murder, was tried, found guilty by a jury of manslaughter in the first degree, who left the punishment to be fixed by the court. The court thereupon sentenced the defendant to serve a term of 20 years’ imprisonment in the State Penitentiary, and he has appealed.

The defendant, a blind man, was alleged to have shot and killed his former mother-in-law at her home at 915 East Park street, Oklahoma City, Okla., on March 21, 1946.

The daughter of the deceased, Katherine Hickman, was also blind. She and the defendant had met, and after a courtship lasting several weeks, were married. At the time of their marriage, Katherine was operating a confectioner’s stand on the first floor of the State Capitol Building.

Prior to their marriage, the defendant had worked at various jobs, but his principal profession was that of a piano tuner, and he had worked a considerable time for a music store in Oklahoma City.

At the time of the marriage of the defendant and Katherine Hickman, according to defendant, they decided to engage in business together and each contributed money for the purpose of financing the business. Several weeks after the parties had pooled their money, they commenced to have arguments concerning the handling of their finances. Shortly thereafter, Katherine obtained a divorce from the defendant. It was just a few weeks after the divorce was granted that the fatal tragedy occurred.

Katherine Hickman testified for the state that she was divorced from defendant on January 28, 1946; that she and her mother, Mrs. Elizabeth Hinds, the deceased, were living at 919 East Park street, on March 21, 1946, and had been living there approximately three years; that about 7:30 p. m. on March 21, 1946, she had washed her hair and was sitting in the bedroom with her mother listening to the radio; that about 8 p.m., the door bell rang and her mother went to the door; that her mother shortly returned and told her that the defendant wanted to speak to her; that when she and her mother entered the front room where the defendant was standing, she heard her mother say, “I will take your hat Orbie”; that the defendant said, “Sit down Mother Hinds, I want to talk to you too”; that her mother sat down in the chair at the end of the divan; that the defendant sat on the divan and she, Katherine, was seated diagonally across from him; that the defendant inquired about how her business was getting along and about the health of some of the members of the family; that defendant then said. “I talked with a psychologist the other night in the hotel and he said the main trouble with you (addressing Katherine) is fear, you are afraid of losing your stand”; that the defendant further said that he had spoken to the psychologist about Mrs. Hinds’ experience of getting a divorce, and the psychologist told him that might have had some bearing on the fact that she, Katherine, sued him for a divorce; that Orbie then talked on about what their agreement had been concerning putting a piano shop in the back yard after their marriage; that she said, “Yes, that was our agreement but mother was gone all summer because of her illness and when she returned you and I were not getting along well, so she didn’t go ahead and talk about putting the piano shop in the back yard as she promised”; that the defendant then said, “That is a lie,” and she said, “No, Orbie, it isn’t a lie”; that she then commenced crying; that she told Orbie that since their separation she had not had nervous spells; and that she was much better off; that during this conversation her mother had sat there and did not say anything; that Orbie then wanted Katherine to pay him the money which he claimed she owed him; that she said, “Orbie, you know I don’t owe you any money”; that the judge said she did not owe him any money; that they continued to talk about the money which Orbie claimed she owed him and which she denied owing; that Orbie then said, “Now I guess you know I left everything for you”; that she then heard a quick movement and a shot, and a scream from her mother; that she jumped and ran to where her mother was and put her hand on her chest and felt blood; that she commenced to scream; that defendant fired another shot and she, Katherine, ran out on the porch screaming; that she ran over to her neighbor’s house crying “Orbie shot my mother, someone go help.”

On cross-examination, the witness repeated in more detail the background of her acquaintance with the defendant, and a more detailed explanation of their financial affairs. The witness further testified that during the time she was discussing a divorce with Orbie, she offered to go with Orbie and live in an apartment separate and apart from her mother, if Orbie would go into business and take care of the expenses of the apartment, so that she could help her mother out of the money she earned at the cigar stand at the Capitol Building. The witness further stated that after the divorce had been granted., the defendant called her frequently and mentioned an alleged agreement pertaining to the income from the cigar stand. She denied that defendant in a conversation with the deceased just shortly before the killing had asked her about the payment of the money, and further denied that the deceased said: “We are not going to pay you anything,” and she denied that defendant then said, “Well I am going to see you in court.” She denied also that her mother came across the room, and denied that defendant had started to leave. She further said that after the first shot was fired, her mother had taken about three steps toward the door before she fell. On re-direct examination she stated that the money which defendant claimed she owed was for work which he claimed he had done at the Capitol cigar stand.

George Lipe, assistant county attorney, who was a former member of the Federal Bureau of Investigation, testifed that he talked to the defendant about 10 p. m. the night of the homicide in the office of the chief of detectives; that in this conversation the defendant said he was 42 years of age and had married Katherine Hickman in 1945; that after their marriage they were unable to get along together and they had been divorced in Oklahoma county in January, 1946 •; that defendant said during part of the time they were married, Katherine’s mother had been here and had gone away from their home because of illness; that after the mother returned he and Katherine had marital difficulties which led to their divorce; that after the divorce he had had some controversy with Katherine concerning the settlement of property involved at the cigar stand at the Capitol Building; that defendant claimed he was entitled to $800 as a result of work he had performed at the stand; that he called Katherine on Sunday prior to the shooting on Thursday on the telephone and talked to her about it; that oh the night of the shooting, the defendant said he left a secondhand store which he had been operating in Oklahoma City, went to the cafe to eat and then took a taxi to the home of Katherine and her mother; that when he knocked at the door, Mrs, Hinds invited him in; that' Mrs. Hinds called Katherine and told her that Orbie was there; that Mrs. Hinds lighted the fire in the front room so that Katherine could dry her hair in front of the fire; that Mrs. Hinds started to leave the room and defendant told her to sit down as he wanted to talk with her and Katherine together; that Mrs. Hinds sat down in a chair to defendant’s left; that defendant was sitting on the divan and Katherine was seated diagonally across from him; that Mrs. Hinds was to left of defendant and Katherine was to left of Mrs. Hinds; that they had a casual conversation for a few minutes and then they commenced a discussion of the controversy over the settlement of the financial affairs; that Katherine said the court had made an order in the case that she did not owe him anything; but that if the court found she owed him any money she would pay him; that he then said to Katherine, “Well if that is the way you feel about it, I will see you in court”; that defendant then said he thought he heard Mrs. Hinds get up out of her chair and thought he heard her say that she would kill him or something to that effect; that he then pulled a gun from his pocket, pointed it at Mrs. Hinds and fired; that he fired the gun four times, after which his mind went blank; that he heard Katherine screaming out on the front porch or in the yard; that after the first shot was fired Mrs. Hinds said, “Don’t do that”; that he then walked to the telephone and called the police.

B. A. Stevens, police officer, testified that he received a call to go to 915 East Park; that when he arrived at the house, there was a woman lying in the door with her feet out the door and her head back inside; that when he stepped in there were two men standing facing the wall; that one of the men said the.other had a gun, and he ran his hand in the defendant’s overcoat pocket and pulled out a 32 Caliber pistol and emptied the pistol of four empty shells, and one full one; that the empty shells were still warm; that Officer Newton who accompanied him said, “Who did the shooting,” and the defendant said, “I did”; that the deceased was lying on her face and stomach and her dress was on fire and smoking under the right shoulder and Officer Newton put out the fire; that the deceased appeared to be a woman about 5' 7" and of medium size.

G. T. Newton, a policeman of Oklahoma City, testified that he arrived at 915 East Park about 8:45 p. m.; that as he stepped into the house he saw a woman lying in the door; that he inquired, “Who has got the gun?” and defendant said, “It is in my right-hand coat pocket”; that Officer Stevens took the gun out of defendant’s pocket; that he saw the dress of the deceased on fire and he put out the fire with his hand.

On cross-examination he said that later, in a conversation with the defendant, the defendant said that the deceased whispered something and he thought she said she was going to kill him; that he noticed powder burns where the dress was burning on the back of the dress.

On re-direct examination he said that the statement of the defendant about the whispering occurred at the Detective Bureau.

J. M. Swafford, official police photographer, identified certain pictures which he had taken the night of the tragedy immediately after the police were notified. These pictures were admitted in evidence. One of the pictures was of the screen door showing a bullet hole in the screen; another was of the body of the deceased as it lay on the floor. There were ten of these pictures and with the exception of Exhibit No. 5, they were each admitted in evidence without any objection from counsel for defendant. Exhibit No. 5 was an enlarged picture of the head of deceased showing a deep scalp wound in the top of her head which had apparently been inflicted by some blunt instrument. Around the wound the hair was matted because of the coagulation of blood. The officer further testified that two bullets had entered the body of the deceased; one of which had entered back of the right shoulder and one in the breast. One of the bullets had entered from her back and was just under the skin near her breast; this bullet was lodged there, the other bullet which was recovered was taken out of the screen door.

The undertaker testified that there were two bullet holes in the body of the deceased; one in the center of the chest, and the other near the right shoulder. He further testified that the deceased was rather large, in his opinion about 5' 8" and would weigh about 160 pounds.

The policeman was recalled as a witness for the defendant and testified that in his opinion the pistol used by the defendant would have had to be held within three to six inches of the deceased to have produced the powder burns and set fire to her clothing which he found.

The defendant testified that he was 42 years of age and totally blind; that he lost the sight in one of his eyes at the age of four and the other at the age of twelve; that be attended the State School for the Blind at Muskogee for thirteen terms and learned the profession of piano tuning and repairing; that he also learned to type and make brooms; that he graduated from the school in 1924; that thereafter he worked for various piano companies in Altus and Frederick, Okla., Wichita Falls, Tex., and also worked in a broom factory; that he then operated a rubber mat factory or shop for about five years in Texas; but later he went into the secondhand business where he handled radios, phonographs, electrical equipment, and guns of all kinds; that he was operating that business when he met Katherine Hickman in 1944; that he had several dates with her and they were married on April 7, 1945; that before their marriage, he and Katherine made definite plans to build a shop at the rear of her home at 915 Northeast Park; that they intended to buy and sell pianos at this shop and repair and rent them; that they talked to his mother-in-law relative to those plans and they met with her approval. The defendant then gave a detailed statement concerning his financial transactions with Katherine Hickman and her mother; that he lived in the home with Katherine Hickman and her mother; that he and Katherine had agreed to pay her mother $100 per month to take care of the expenses; that on May 20, 1945, Mrs. Hickman left the home to go to consult a specialist about her health and and was gone until about August 25th, that during the period that Mrs. Hickman was gone, the defendant worked at the cigar stand in the Capitol Building every day; that during the fall of 1945, Katherine commenced to complain about being short of money and that he commenced to work at the Jenkins Music Company; that he used part of the money which he earned to buy Christmas presents for Katherine and her mother, and put part of the money back into the cigar stand; that he and Katherine got to> arguing one night over the finances and that Katherine told him she was going to get a divorce; that Katherine went to a lawyer the next day and at her request he went to the lawyer’s office to discuss the divorce proceedings; that when he arrived at the office, Katherine and her mother were there; that the petition was read to him but he refused to sign a waiver unless they would work out a settlement with him on the work he had done and divide the profits of the stand; that finally Katherine and her mother promised him that if he would not contest the divorce that they would make a settlement with him just as quickly as they could get around to it; that he then signed the waiver; that after the divorce was granted he called Katherine over the telephone every two or three days but that she was very nervous and he did not talk to her too much about it; that he went back into the secondhand business and was operating this business at the time of the alleged homicide; that he talked to her on Sunday and asked if she and Mrs. Hinds were feeling well enough to discuss the settlement and Katherine said, “I am not going to pay you, and my mother is not going to pay you,” to which he replied, “I am going to give you a week to maké up your mind, and if you don’t make a satisfactory settlement, I am going to put it back into court”; that the next morning mother Hinds called him and asked if could come out and talk about the settlement and he told her he was taking inventory of his stock and could not be out until Wednesday or Thursday; that on Thursday he closed his place of business at 7 p. m., went by the cafe and drank a cup of coffee, and then rode in a taxicab to the residence of the deceased; that the 32 Caliber Smith and Wesson pistol which he carried with him that night was one he had been carrying back and forth from his room to the store since he had opened his place of business; that he rang the door bell and mother Hinds invited him in; that he sat down on the east end of the divan; that Katherine and her mother came in together and the mother left the room; that he called the mother to return and told her that he wanted to talk to them both together; that Katherine was sitting north from him and Mrs. Hinds was sitting north and west from him; that Katherine told him that, “We have decided we are not going to pay you anything unless the court says so”; that he turned to mother Hinds and said, “What do you say about this,” to which she answered, “We are not going to pay you one cent”; that he then reached for his hat and said, “I will see you in the courtroom”; that he heard Mrs. Hinds get up, take two or three steps towards him and she grabbed him by the hair and started jerking him; that Katherine said, “Mother don’t do that”; that he arose from the divan and Mrs. Hinds kept jerking him back and forth; that he reached for her right hand to see what she had in it but could not catch her hand; that he thought she had a knife and was going to cut his throat or was going to knock his head off; that he happened to think about the gun in his pocket and pulled it out; that he then heard a report and everything seemed to be going on; that the next he recollected was that he heard Katherine on the outside of the house screaming “Mother, Oh God, mother”; that he did not realize that he had pulled the trigger until he felt of the barrel of the gun and smelled gun powder; that he then went to the telephone and called the police and told them to come out; that he remained in the room until the police arrived and took him to the police station.

After a short recess, the defendant was recalled to the stand and upon being asked by his counsel whether Mrs. Hinds made any statement as she crossed the room towards him, he said, “Mother Hinds said in a hoarse whisper ‘I am going to kill you for that.’ ”

On cross-examination he said that if he shot Mrs. Hinds it was an accident, as he did not intend to fire the gun but pulled it out of his pocket to scare her. On cross-examination, upon being asked whether he recalled firing the gun in the direction of the door, he answered, “I know my intentions was to fire it at the floor and get out of there, but what happened I don’t know.”

The defendant further testified that he employed Mr. Whitten, attorney of Oklahoma City, to check the divorce papers for him before he signed the waiver, and admitted that he did not tell Mr. Whitten, his attorney, or Mr. Cheek, who was attorney for his wife, that Katherine or her mother either owed him any money. No other evidence was offered on behalf of defendant.

In rebuttal, Katherine Hickman testified that she did not hear any scuffle between her mother and the defendant or anyone else before the shot was fired and stated, “There wasn’t time for anything.”

George Lipe testified that at the time he took the statement from the defendant at the police station the night of the killing, the defendant did not at any time state that the deceased ever took hold of his hair and pulled it, nor did he use any words to that effect.

It is first contended that trial court erred in refusing defendant’s requested instruction No. I, which reads as follows:

“You are instructed that if a person is assaulted in such a manner as to produce on the mind of a reasonable person a belief that he is in actual danger of losing Ms life or suffering great bodily harm, he will be justified in defending himself, though the danger is not real, but only apparent, and such person will not be held responsible criminally if he acts in self-defense from real and honest conviction as to the character of the danger, induced by reasonable evidence, though he may be mistaken as to the actual extent of the danger.
“In determining whether or not the defendant had reasonable cause to apprehend or fear death or great bodily harm at the time and place here in question, the jury should, as far as possible, place themselves in the position occupied by the defendant at that time, and view the facts and circumstances of the case from the standpoint of the defendant and as they reasonably appeared to him, and if, after so doing, you entertain a reasonable doubt as to whether or not, at that time, he had reasonable grounds to apprehend or fear death or great bodily injury, and in good faith acted upon that apprehension, you should resolve that doubt in favor of the defendant and acquit him”.

This requested instruction contains a substantial statement of the law pertaining to the plea of self-defense interposed by the defendant. However, the trial court in instruction No. 12 gave a lengthy statement of the law pertaining to the plea of self-defense. This one instruction covers four pages in the record. In it the court repeatedly advised the jury that they should view the circumstances “from the standpoint of the defendant” and again the court stated in the instruction:

“Now, what constitutes a reasonable cause for such belief? A reasonable cause for such belief is such an overt act or demonstration made by the deceased, at the time of the fatal difficulty, which, considered in the light of all the facts and circumstances then existing and known to the slayer or by Mm believed to be true, would create in the mind of a reasonably prudent and cautious person in lihe situation, an honest belief that the deceased then and there intended to kill him or inflict great bodily injury upon Mm, and that it was necessary to kill the deceased in order to avert such threatened danger to himself. What acts or demonstrations do or do not constitute such reasonable cause, and whether or not any were made, are all questions of fact to be determined by the jury upon a consideration of all the facts and circumstances in evidence before you.
“The jury are instructed, therefore, that if they believe from the evidence in this case beyond a reasonable doubt that the defendant, Orbie Thomas Guthrie, shot the said Elizabeth Hinds with a revolver or other deadly weapon and thereby killed her, but, should further believe that the deceased, Elizabeth Hinds, without this defendant having sought the difficulty or having voluntarily entered into it, or having wilfully provoked it, assaulted the defendant, or attempted to assault the defendant, in such manner and under such circumstances as would cause a reasonable person situated as was the defendant at that time, to honestly believe that he was in immediate danger of being killed or of receiving great bodily injury at the hands of the deceased, and that the defendant, under said circumstances, for the purpose of averting such apprehended injury to himself, and not in the spirit of malice or revenge, inflicted the fatal wound upon the deceased, having reasonable cause to believe and honestly believing that it was necessary for him to so act for the preservation of his own safety, then and in that event, the killing would be justifiable and it would be your duty to acquit this defendant. And if, after a consideration of all the evidence, facts and circumstances in this case, you have a reasonable doubt as to whether or not that state of facts existed on that occasion, then, you should give the defendant the benefit of the doubt and acquit him.
“It is not necessary to this defense that the defendant’s danger should have been actual or real, all that is necessary is that the defendant, from his standpoint, under all the circumstances in the case had reasonable cause to believe and did honestly believe that fact. Whether or not the defendant had reasonable cause for such belief and honestly entertained such belief and acted under the influence of such beliefs is a question of fact for you to determine under the evidence in the case, viewing the matter as it would reasonably appear to the defendant at that time.”

In the recent case of Geyman v. State, 86 Okla. Cr. 348, 192 P. 2d 707, 708, this court stated:

“It is not error to refuse requested instructions which are proper statements of law when such requested instructions are substantially covered by the instructions given by the court.”

To the same effect is the case of Osborn v. State, 86 Okla. Cr. 259, 194 P. 2d 176:

In discussing this proposition, counsel dwells upon the handicaps of a blind person and states that he should not be treated as a person who has the sense of sight. In the motion for a new trial on the ground of newly discovered evidence, there is attached to the motion the statement of two eminent doctors who relate the handicaps of those afflicted by blindness and how they depend on their sense of hearing.

We who have no physical handicaps, at least to the extent of being deprived of the sense of sight, find it difficult to place ourselves in the position of the defendant. The defendant was entitled to be tried by a jury of his peers, but that does not mean that he is entitled to be tried by a jury of twelve blind men. In fact, our statutes pertaining to the qualification of a juror prevents a person serving on the jury who is afflicted with a bodily infirmity amounting to a disability. 38 O. S. 1941 § 10. The defendant had a legal right and the trial court allowed him to detail at length the various sensations which he sustained and the impressions which were made upon his mind which caused him to think he was about to be assaulted by the deceased. It so happened that the first story of the fatal encounter related by defendant and the physical facts refuted much of the defendant’s testimony. In instruction No. 12, the jury was correctly instructed that they must place themselves in defendant’s situation and view the circumstances as they reasonably appeared to the defendant at the time the fatal shot was fired. More than that was not required. The defendant was not convicted because the jury was improperly instructed. The jury just didn’t believe the testimony of defendant. Undoubtedly, his blindness caused them to find him guilty of the lesser offense of manslaughter instead of the more serious offense of murder.

The writer has had the pleasant experience of long acquaintance with a few men who were blind, but who in spite of their physical handicap were cheerful and who could perform almost unbelievable feats. It seems to be quite true as argued by counsel for the state that the loss by a human being of one of his senses causes the remainder of the senses to be more keenly developed in order to help the individual replace the lost sense. Only recently the Oklahoma newspapers carried a feature story concerning one Tom Hopkins, a resident of Paden, who was totally without vision, but was widely known because of his success as a hunter and trapper. His sense of feeling and hearing had become so acute that it is said he often killed wild game with Ms rifle which his dog had treed. The writer of this opinion was reared in the same county with Hopkins and is familiar with many of the remarkable things that he could do with a gun. The writer has had the pleasure of fishing with a blind man and was amazed at the way he cast his lures in the right spot where there were no hushes to entangle him.

With some limited knowledge of these apparently uniform characteristics of the blind, of having the remainder of their senses more highly developed, we have endeavored to place ourselves in the position of the defendant at the time of the fatal difficulty and view the situation as it then appeared to him. Some jury of twelve men had to determine the guilt or innocence of the defendant. He had able counsel. It was the function of the jury to determine this question. However, counsel for defendant insisted that the punishment assessed the accused was excessive and for that reason we have given this question the utmost and careful consideration, and have endeavored to view the circumstances as best we could from his standpoint to see whether the punishment inflicted by the trial court was manifestly excessive.

The deceased was shot once in the front of the body and once in the back. Either shot would have been fatal. She was struck a severe blow upon top of the head and the physical circumstances point to the fact that she was struck on the head by the pistol of the defendant. It is unlikely that defendant would have been carrying a gun if he did not know how to use it, or was not convinced in his own mind that it would be a protection to him in time of danger. If the defendant had the intent of killing his mother-in-law, he could not have placed his shots more effectively, and the place where he struck her with Ms gun would indicate that he had the design of causing her death. After the shooting occurred, the defendant walked to the telephone without assistance and dialed the police number and calmly waited in the room with the deceased until the police arrived.

We cannot escape the conclusion that defendant blamed his mother-in-law for the friction which had arisen between him and his wife, and that by reason of his failure to secure satisfactory replies to his questions, he became very angry and chose to destroy the one he felt was causing his trouble. The location of the death wounds strongly indicated that defendant knew exactly Avhere he was firing.

Counsel for defendant contend that the court erred in admitting the evidence as to a confession of the defendant made to the witness Lipe. No objection was interposed to the testimony of the witness Lipe, and there Avas no evidence in the record, including the testimony of the defendant himself, which was given in his behalf at the conclusion of the state’s case which would indicate that the statement given to Lipe was involuntary.

In the case of Carr v. State, 85 Okla. Cr. 429, 188 P. 2d 705, this court held:

“The object of admitting a confession in evidence is to obtain truth, and the only ground on which it is rejected is that the circumstances under which it is obtained have a tendency to falsehood, and that therefore the object is likely to be frustrated.
“Prima facie any confession is admissible in evidence, and burden is on defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless state’s evidence tends to show that fact.”

Since there was no contention presented at anytime during the trial that the statement given to Lipe was involuntary, no proof was offered on that issue and this assignment of error cannot be sustained.

In the brief of the defendant it is stated that the court erred in admitting prejudicial photographs in evidence and further erred in admitting in evidence the clothing worn by deceased. No authority is cited to sustain this contention. As hereinabove stated the photographs with one exception were admitted without objection.

In Cannon v. State, 60 Okla. Cr. 167, 62 P. 2d 657, it is held:

“It is not error to permit the jury to see the clothing worn by the deceased where the defendant pleads self-defense, and the clothing proves or disproves his contention.”

For other cases sustaining the admissibility of the clothing and photographs, see: Dobbs v. State, 39 Okla. Cr. 368, 264 P. 661; Cooper v State, 61 Okla. Cr. 318, 67 P. 2d 981; Jackson v. State, 67 Okla. Cr. 422, 94 P. 851.

The statement in the brief of defendant that the court failed to give an instruction on defendant’s theory of the case may not be sustained. The comprehensive instruction (No. 12) hereinabove discussed pertains to the defendant’s theory and gives a correct statement of the law concerning it.

Several months after the conviction of defendant, there was filed a motion for new trial on the ground of newly discovered evidence, which motion alleged that no person learned in psychiatry appeared as a witness in the trial of the case, and therefore the judge and jury could not have known the distinction between the appearances to this defendant and a normal individual; that the defendant has been examined by two learned doctors who will testify if permitted at another trial to the distinction between the sensations felt by a blind person from that of a normal individual. We have hereinabove mentioned this motion for new trial in discussing proposition No. I.

We have a high regard for the opinion of the two doctors whose statements are attached to the motion for new trial and we have carefully read these statements.

Waiving the question as to the meritorious contention of counsel for the state that the defendant failed to allege in his motion the necessary essentials in a motion such as this, explaining his reason for not having the witnesses in attendance at the trial, we pass to the merits of this proposition. The statements of the doctors can be summarized by quoting from the conclusion of Dr. Hugh M. Galbraith’s statement:

“This man has always been blind and his childhood experiences were such that he never was able to attain a feeling of security that one similarly handicapped might attain. However, he has done well in making a good living throughout his life and for the most part has kept out of trouble. His unfortunate experiences with his wife and his mother-in-law were such as to disturb anyone and his fearfulness in relation to his urge toward self-preservation was exaggerated by his blindness. He had previously shown tendencies to react violently but not often. Under the circumstances it would seem that if his story is true that his mother-in-law attacked Mm first, the murder should be considered as an act of self-defense.”

Even if these doctors had been present and had testified on behalf of defendant to the above statement, we cannot conceive how any reasonable jury, with due regard for their oath of office, could fail to find the defendant guilty under the evidence presented by this record. The location of the death wounds, the deep scalp wound, the blood on the divan, the location of the body of the deceased, all irresistibly point to the conclusion that the killing was unjustified upon any theory. The evidence pertaining to the deceased indicates that the deceased was not a person who was likely to assault the defendant in the manner which he claims he was assaulted. This part of the story to a reasonable person appears to be a fabrication. Evidently, the jury so considered it; otherwise, they would have found the defendant not guilty.

Since all of the statement of the doctors is based on the hypothesis that the deceased said to defendant, “I am going to kill you,” then such evidence if given on another trial would not affect the outcome of the case, because the jury found from all of the facts in the case that no such statement was made by the deceased.

The defendant was fairly .tried. A careful examination of the record reveals no substantial errors. The instructions, considered as a whole, seem to be fair and are as favorable to the defendant as the law requires. The sentence of 20 years’ imprisonment in the penitentiary does not appear excessive.

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

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


author: BRETT, J.

text:
    LEE ROY SUNDAY v. STATE.
    No. A-10885.
    June 9, 1948.
    (194 P. 2d 905.)

      Quinn M. Dickason and Harry Seaton, Public Defenders, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam II. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal by Lee Roy Sunday tbe defendant below from a conviction and sentence to tbe penitentiary to a term of seven years for tbe crime of forgery in tbe second degree. A jury was waived and tbe case was tried to tbe court.

There is only one question raised by tbe appeal,, is tbe evidence sufficient to sustain tbe conviction? The information alleges that tbe defendant Lee Roy Sunday forged a check in tbe sum of $10 drawn on the First National Bank & Trust Company of Tulsa, Okla., on October 12, 1946, payable to the order of cash, signed Mary Baker, with the intent to beat, cheat and defraud the said Mary Baker and the First National Bank & Trust Company of Tulsa out of said sum. The said check together with the endorsements thereon offered in evidence being in words and figures as follows, to wit:

“Tulsa, Oklahoma, Oct. 12,1946
“The First National Bank and Trust Company
“Pay To
The Order
of Cash $10.00
Ten & no/100 .............................................................. Dollars
(Sgd.) Mary Baker
524 N. Boulder.
CDB
(Stamp)
Signature Not Satisfactory.
(Endorsed on back)
Lee Bulcer
524 No. Boulder
C. D. Benton.
(Stamp) National Bank of Tulsa Cleared Oct 17, 1946
Oct 14, 1946.” (C.-M. 46)

The record discloses that Mary Baker was formerly the wife of Lee Boy Sunday, but they were divorced in 1935. It shows that they had been living together in common-law relationship off and on since that time. It further discloses that Mary Baker opened an account at the First National Bank & Trust Company in Tulsa, Okla. The signature card required by the bank when this account was opened was in her name only. It did not authorize the payment of any checks except over her signature.

It was stipulated by the state and the defendant that the foregoing check endorsed in the name of Lee Buleer, 524 North Boulder (said address being the address of Mary Baker), was uttered to F. I. Sibert at the Bud Benton Grocery in Tulsa, Oklahoma, and $10 in cash received by the defendant therefor. Thereafter it was endorsed by C. B. Benton and presented to the said bank and payment refused because the signature was not valid. The bank had an affidavit executed by Mary Baker covering four or five prior checks, which affidavit stated that such signature was not valid. Upon the said affidavit executed by Mary Baker she received by reimbursement from the bank on the said other four or five checks, something in excess of $100.

The record further shows that when the defendant was arrested, he said that he had only been writing checks on Mary Baker for a month to six weeks and that there were about five or six of them. At the trial he testified he had authority to check on this account ever since he and Mary Baker were divorced. After Mary Baker had been reimbursed by the bank for her losses incident to the several forged checks, she did all in her power to protect her former husband. The defendant’s testimony as to authority to write checks on Mary Baker’s account as to these four or five checks other than the one herein involved was corroborated by Mary Baker. As to the cheek herein involved she testified she didn’t give him authority to sign the same. If there were anything more than the sworn testimony of Mary Baker and Lee Roy Sunday,' we would be compelled to conclude that the evidence was insufficient, but when we consider the indisputable circumstances and the actions of both complainant Mary Baker and the defendant, we are compelled to concede the evidence of guilt is overwhelming. The fact that Mary Baker was away in California when the transaction involving the instant check occurred; that when she was confronted with the signature that appeared on the four or five other checks she did not recognize the defendant’s signature as the one her husband had used for approximately thirteen years; the fact that she made claim upon the bank to recover the money on the four or five other checks which the defendant had theretofore drawn, on the theory and belief that they were forgeries, and she received reimbursement thereon; the fact the signature card in the bank authorized the honoring only of checks in the name of Mary Baker; and her sworn testimony that the defendant had no express authority to write the #10 check herein involved, all contradict her sworn testimony to the effect that her husband had permission to write these checks on her account, and that this had been going on for approximately thirteen years. Moreover, the foregoing conclusion is corroborated by the defendant’s statement in writing to the police officer to the effect that he started this venture about a month or six weeks ago. These irrefutable circumstances destroy the effect of the sworn testimony of both the complainant and the defendant. Moreover, if the defendant had authority to check on this account, why were the checks not signed Mary Baker by Lee Roy Sunday. The defendant’s evil intent is made manifest by his endorsement on the #10 check herein involved, not in his true name but under the false personation of Lee Buleer, to which he attempted to give credence by affixing to the endorsement the address of his wife, 524 North Boulder. This we are inclined to believe he did in order to throw the merchant off-guard because forgers do not ordinarily give an address except for one purpose and that is to deceive, to leave an impression of stability, and to indicate permanent abode, where they can easily be found. The foregoing circumstances fall within the old adage of “actions speak louder than words”, and the admonition of Omar Khaayam:

“The moving finger writes
And having writ moves on,
Nor all your piety nor wit
Shall lure it back to cancel half a line Nor all your tears wash out a word of it”.

The defendant relies on the case of Bradley v. State, 63 Okla. Cr. 203, 74 P. 2d 126. The Bradley case is not controlling herein for the reason that the same turned upon the court’s failure to instruct the jury upon the question of the defense of claimed authority of Wallace Bradley to write checks upon his mother’s account in the bank. Since the instant case was tried to the trial court without a jury, the trial court decided the issue of Lee Roy Sunday’s authority. From the facts disclosed in the case at bar, the trial court resolved that issue against the defendant Sunday. The trial court found that Lee Roy Sunday had animo furandi or criminal intent to defraud the material fact necessary to establish a case of forgery. Bradley v. State, supra, and Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483, and that the case fell within the provisions of Title 21 O. S. A. § 1577, as follows, to wit:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

From what we have heretofore said, we are of the opinion that the evidence was sufficient upon which to base the trial court’s finding, and being sufficient the trial court’s finding of guilt is binding on this court as was said in Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185, 186:

“Where a jury is waived and a case tried to the court, his findings as to the guilt of the defendant will not be reversed where there is any competent evidence in the record, together with the reasonable inferences and deductions to be drawn therefrom, supporting the court’s finding.”

The reasonable inferences and deductions to be drawn from the record herein support the court’s finding. However, even for a third time loser, we are of the opinion that a seven year sentence on a $10 check for forgery is rather severe, and for that reason the sentence herein imposed should be and the same is modified to three years in the penitentiary. For all of the foregoing reasons, the judgment and sentence as modified is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    Ex parte W. S. PEAKER.
    No. A-10974.
    June 16, 1948.
    (194 P. 2d 893.)

      W. S. Peaker, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The petitioner, W. S. Peaker, has filed a verified petition in this court setting up certain facts allegedly surrounding his conviction of the crime of rape for which he is serving a sentence in the State Penitentiary, and further stating that he had filed a petition before the Honorable W. A. Lackey, judge of the district court of Pittsburg county, which was denied, and praying that this court grant an appeal from the order of Judge Lackey denying the writ of habeas corpus, and on appeal to issue the writ of habeas'Corpus.

We have heretofore assumed original jurisdiction and heard a similar petition in habeas corpus filed on behalf of this petitioner. Ex parte Peaker, 82 Okla. Cr. 360, 170 P. 2d 264. In that case the facts pertaining to the conviction of the accused are fully related and we shall not encumber this opinion by again reciting the same.

Under the Constitution and statutes of Oklahoma, the district court, the Criminal Court of Appeals, and other courts of record, have concurrent original jurisdiction in habeas corpus actions. Art. 7, §§ 2, 10, 12, Oklahoma Constitution; 20 O. S. 1941 § 41.

See, also, State ex rel. Wester v. Caldwell, 84 Okla. Cr. 334, 181 P. 2d 843.

When a petition in habeas corpus is filed before any of said courts of record, the court before whom the petition is filed passes upon the matter before it and no appeal will lie from the judgment of the court. The action of the court, however, does not prevent the petitioner from again filing a petition for habeas corpus. Ordinarily, to prevent encumbering the docket of this court with a large number of habeas corpus cases, we require, as a rule of the court, that the petitioner first present his petition to the district court of the county where he is allegedly restrained of his liberty. In adhering to this rule, the petition in habeas corpus was first presented to the district court of the county where the petitioner was allegedly restrained of his liberty before the same was filed in this court.

Since no appeal will lie from the action of district court in refusing to issue the writ of habeas corpus on the petition of the prisoner, W. S. Peaker, we have docketed the pleading which he filed herein as an original action to secure a writ of habeas corpus in this court.

In Ex parte Berrie v. State, 75 Okla. Cr. 115, 129 P. 2d 88, this court stated in the syllabus:

“Where Criminal Court of Appeals has denied application for writ of habeas corpus, it will not ordinarily entertain subsequent application for such writ on same grounds and facts or any other ground or facts existing when first application was made, whether presented then or not.”

See, also, In re Arthur, 75 Okla. Cr. 315, 131 P. 2d 135; Ex parte Cray, 74 Okla. Cr. 200, 124 P. 2d 430.

A careful examination of the petition shows that it is based upon substantially the same allegations as were set forth in the first proceeding heard by this court here-inabove discussed.

We are unable to find anything in the record to indicate that the trial court was without jurisdiction to render the judgment which was rendered and for that reason the writ of habeas corpus is denied.

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


text:
    WILEY PINKEY ATKINSON v. STATE.
    No. A-10859.
    June 23, 1948.
    (196 P. 2d 522.)

      Owen F. Renegar, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Wiley Pinkey Atkinson, was charged by information filed in the district court of Oklahoma county with the crime of robbery with firearms, was tried, convicted and sentenced to serve 20 years in the State Penitentiary, and has appealed.

The first proposition presented in the brief of the defendant is that the evidence is insufficient to sustain the conviction.

It was alleged in the information that the defendant committed the crime of robbery with firearms on March 31, 1946, by taking $95 from Angie Coulter while she was acting as night clerk at the Sieber Hotel in Oklahoma City.

Angie Coulter testified that on March 31, 1946, she was employed as relief clerk at the Sieber Hotel; that she went on duty at 11 p. m.; that about 2:3Q a. m. she heard footsteps coming down the lobby and looked up; that the defendant was standing there pointing a pistol at her and said, “Lady I guess you know what this means, hand it over”; that she gave the defendant some paper money out of a box and that he commanded her to give him the rest of it; that she kept handing it to him a little at a time; that while the robbery was going on, Earl Bennett, the hotel porter, walked into the lobby and the defendant pointed a gun at him and commanded Mm to sit down; that the defendant then pointed the gun back at her and told her to get the money out of the safe; that about that time the elevator made a noise as if it was coming down and the defendant turned and walked out of the door; that she delivered to the defendant approximately $95 of money which belonged to the hotel; that the next morning after the robbery she resigned her job and moved back to her home at Guthrie, where she was residing at the time of the trial.

Earl Bennett testified that he was the Negro porter at the Sieber Hotel the night of March 31, 1946; that about 2:30 a. m. he came out of an anteroom into the lobby of the hotel and saw a man in front of the desk putting some money in his pocket; that the man turned and pointed the gun at him and commanded him to put Ms hands in the air and then directed him to sit down; that the robber kept bending over the desk and brandishing the pistol at Miss Coulter and telling her he knew there was more money, for her to give him the money, that he asked about the safe; that the elevator started coming down from upstairs and the robber became nervous and walked outside; that about five months later, when the defendant was arrested, he was called to the police station and picked the defendant ont of several suspects which they had in a show-up room as the person who had committed the robbery. He was positive in his identification of the defendant.

Wayne Harbolt, police officer of Oklahoma City, testified that the next day after the arrest of defendant on September 18, 1946, he talked to the defendant concerning the Sieber Hotel robbery; that the conversation took place in the consultation room at the Oklahoma City police station in the presence of Wenona Nation, a stenographer in the police department; that the defendant said that he wanted to get it off his chest and enter a plea of guilty, and that no threats or duress, nor promises of inducement were made to the defendant to secure a statement from him. A written statement which was signed by the defendant was admitted in evidence. In it the defendant made the following statement:

“Along about March 1st, 1946, I started to work for Eugene Elmer Sames alias Mutt Sames, delivering whis-ky. I did not work very long until my car broke down and as I did not have the money to have it fixed Mutt told me to put it in the garage and he would pay for it which he did, the bill amounting to approximately $80. I paid him all with the exception of $40 or $45.
“He started asking me for this money, and on March 30th, 1946, I was at his house at 628 N, W. 3rd street and he dunned me, at which time we started talking about some place that I could rob to get the money to pay him. I mentioned the Sieber Hotel and he said that it should be good for $300 or $400. We talked for some time and he loaned me his 38 pistol and along about 1 a. m. I got in my car and drove it to 12th and North Harvey where I parked it, walked to across the street from the Sieber Hotel where I stood and watched for awhile to see if there was anyone in there. I could only see the porter and the woman behind the desk.
“I walked in and pointed the pistol at them and told the porter to sit down in a chair and told the lady behind the desk to give me all the money in the drawer. She put all the money that was in the drawer on the counter which consisted of approximately $70. I put the money in my pocket and asked her if she had a safe and she said she didn’t have and about this time someone walked out of the back and I turned and walked out the front door.
“I then went to my car and drove to a friend’s house on 7th street where I stayed all night. The next day I went back to Mutt Hames where I paid him the $40 or $45 and gave him his pistol back at which time I told him I had pulled this robbery that we had discussed the night before.”

Wenona Nation, stenographer for the police department, testified that she took the statement from the defendant in shorthand and transcribed it; that the defendant read the statement in her presence and signed it; that he did not appear to be nervous or reluctant in any manner when he made the statement.

Clyde Anderson, policeman of Oklahoma City, testified that he arrested defendant on September 17, 1946; that he started to interrogate the defendant that night ■about the Sieber Hotel robbery and the defendant remarked, “You know I am guilty as hell anyway.”

J. F. Yancey, policeman of Oklahoma City, testified that he received the call on his car radio of the Sieber Hotel robbery at 2:50 a. m. on March 31, 1946, and that he went directly to the Sieber Hotel and talked to the clerk and porter about the robbery.

On behalf of the defendant, the evidence was in the nature of an alibi. Mr. and Mrs. Robert Lea testified that on Saturday evening, March 31, 1946, the defendant and his wife came over to their home for dinner and stayed there at the house and played cards with them until about 2:30 a. m.

The defendant’s father testified that defendant and his wife lived with him.; that the witness went over to the home of Eobert Lea about 1:30 a. m., March 31, 1946, and saw Mr. and Mrs. Lea, and defendant and his wife playing cards; that the defendant and his wife came home and went to bed about ten minutes before 3 a. m.

The defendant testified in his own behalf that he did not commit the robbery as alleged; that he had spent the evening at Eobert Lea’s home and was there at the time of the alleged robbery; that he left the Lea home shortly before 3 a. m. and went to his own home and went to bed; that he signed the statement admitted in evidence on behalf of the state; but that the reason he signed it was because Officer Harbolt wanted him to implicate Mutt Haymes, a bootlegger, and told him if he Avould sign the statement implicating Haymes that he would be released.

On cross-examination defendant admitted having been convicted twice of larceny of an automobile and admitted having about 13 other convictions against him for unlawful possession of intoxicating liquor, which charges were filed in the municipal court of Oklahoma City. He denied that he had a pistol in his possession on March 31st, which belonged to Mutt Haymes, but admitted that he had worked for Mutt Haymes.

In rebuttal, Wayne Harbolt denied that he had asked the defendant to make a statement implicating Mutt Haymes in the robbery.

Mutt Haymes testified that his name was Elmer Eugene Haymes; that he had known the defendant about three years; that during the month of March, 1946, he loaned the defendant his blue steel hammerless 38 caliber pistol.

On cross-examination he said that he had loaned the gun to the defendant on three or four different occasions.

Counsel for the defendant state that the evidence is insufficient to sustain the conviction for the reason that the evidence of the defendant presents a perfect alibi.

The defendant was positively identified by the two persons who were present at the robbery. In addition, he signed a written statement confessing that he committed the crime. His explanation of the reason for signing his statement was weak and incredible. His previous bad record affected his credibility. The jury considered all of these things and evidently concluded that the defendant was guilty.

Where the state’s evidence is sufficient to show the guilt of the defendant, a defense of alibi and mistaken identity is a question for determination of the jury under proper instructions. Powell v. State, 11 Okla. Cr. 615, 150 P. 92; Teague v. State, 58 Okla. Cr. 239, 52 P. 2d 91.

Under proposition 2, defendant contends that the county attorney committed error in asking defendant on cross-examination concerning certain convictions which the defendant had sustained, including convictions sustained in the police court of Oklahoma City.

The record discloses that there were no objections interposed when the defendant was asked concerning Ms former convictions, including the convictions sustained in the municipal court for the unlawful possession of whisky.

It is established law that a defendant may be asked on cross-examination whether he has been convicted of crime for the purpose of affecting his credibility as a witness. Hill v. State, 81 Okla. Cr. 342, 165 P. 2d 146; Graham v. State, 80 Okla. Or. 159, 157 P. 2d 758.

The right of the county attorney to ask the defendant on cross-examination concerning his former conviction in the municipal court of a whisky conviction has been sustained. Wheatley v. State, 77 Okla. Cr. 122, 139 P. 2d 809. In that case the law is stated:

“County attorney may inquire of defendant on cross-examination, for the purpose of affecting his credibility, as to his convictions in police court for violation of municipal ordinances prohibiting the possession or sale of intoxicating liquors as the same constitute offenses under the state law and are crimes within contemplation of statute. 12 O. S. 1941 § 381.”

It is next contended that the court erred in permitting the testimony of Eugene Haymes to be given in rebuttal for the reason that said witness was not endorsed on the information and that his testimony was a part of the proof of the state’s case in chief.

The evidence of Haymes was proper rebuttal to refute the testimony of defendant that he did not have the Haymes pistol in his possession on March 31, 1946, and to further refute his statement that he had never borrowed the pistol from Haymes.

In Dobbs v. State, 39 Okla. Cr. 368, 265 P. 661, 663, it is held:

“The state is not required to indorse the names of witnesses whose testimony is made permissible or necessary in rebuttal by reason of the evidence of the defendant.”

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

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


text:
    DEE T. LOVING v. STATE.
    No. A-10878.
    June 23, 1948.
    (196 P. 2d 519.)
    Lee & Allen, of Idabel, for plaintiff in error.

      Mae Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Dee T. Loving, Sr., defendant below, was charged in the county court of McCurtain county, with the offense of unlawful transportation of intoxicating liquor or whisky, to wit, four cases of tax-paid whis-ky, from some point outside of McCurtain county, to a point about one mile south of Cisco, five miles west of Idabel within said county and state with the intent to violate the prohibitory liquor laws of the State of Oklahoma; was tried, convicted and sentenced to pay a fine of $200 and serve 60 days in the county jail, and has appealed.

The Attorney General, on behalf of the state, has filed a memorandum as to the lack of jurisdiction of the Criminal Court of Appeals as shown by the record, for the reason that the petition in error with case-made attached was not filed within this court within the period of 60 days from the date of the judgment and sentence, as provided by statute. The record discloses that to said verdict of conviction a motion for new trial was filed, heard, considered and overruled with exceptions on February 17, 1947, and the defendant sentenced as herein-before set forth, to all of which the defendant excepted in open court and gave notice of appeal to the Criminal Court of Appeals. The defendant asked and was allowed 60 — 10—5 days in which to make and serve a case-made. On the expiration of the 60 days allowed by the court to make and serve a case-made, no extension of time within the additional 60 days as provided by statute was requested or given to the defendant to file his appeal in the Criminal Court of Appeals. Thereafter, on May 15, 1947, petition in error together with the case-made thereto attached was filed in the Criminal Court of Appeals.

Under the provisions of Title 22 O. S. A. 1941 § 1054, as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” (Emphasis ours.)

As was said in the case of Jackson v. State, 86 Okla. Cr. 6, 188 P. 2d 878, 879:

“We are reluctant to dismiss appeals in criminal cases, and will not do so upon technicalities, but when the appeal has not been filed within the time prescribed by the statute, it has been held upon many occasions that this court does not have jurisdiction to consider the appeal. See the following cases: Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99; Monzell v. State, 78 Okla. Cr. 34, 143 P. 2d 163; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870; Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 128; Powell v. State, 65 Okla. Cr. 250, 85 P. 2d 326; Wallace v. City of Tulsa, 76 Okla. Cr. 254, 135 P. 2d 1002; Samford v. State, 83 Okla. Cr. 134, 173 P. 2d 749; Butler v. State, 83 Okla. Cr. 105, 173 P. 2d 453;

See, also, Pooler v. State, 85 Okla. Cr. 97, 185 P. 2d 235.

No response to the memorandum of the Attorney General calling to the court’s attention its lack of jurisdiction has been filed by the defendant. In Jump v. State, 76 Okla. Cr. 9, 133 P. 2d 561, this court held:

“When an appeal in a misdemeanor case is not taken within the sixty days prescribed by the statute (Section 3192, O. S. 1931, 22 O. S. 1941 § 1054), the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.”

See, also, Gunter v. State, 13 Okla. Cr. 83, 162 P. 231; Wilkerson v. State, 76 Okla. Cr. 152, 134 P. 2d 998; Miller v. State, 78 Okla. Cr. 112, 144 P. 2d 120. In Brown v. State, 84 Okla. Cr. 115, 179 P. 2d 478, 479, it was further said:

“A failure to file the appeal in this court within the time allowed by the law is fatal to the appeal and this court has no discretion to determine the appeal unless it is taken within the time prescribed by statute,.”

For the reasons hereinabove stated, the purported appeal herein should be dismissed and the cause remanded to the trial court with directions to enforce its judgment and sentence. It is so ordered.

BAREFOOT, P. J., and JONES, J., concur.


text:
    WILLIAM TURNER v. STATE.
    No. A-10880.
    June 30, 1948.
    (195 P. 2d 767.)

      Amos T. Hall, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, William Turner, was charged by information filed in the district court of Osage county with the crime of attempted rape, was tried, convicted of assault with intent to commit rape and sentenced to serve 180 days in the county jail and pay a fine of $500, and has appealed.

The defendant, a Negro man about 31 years of age, was alleged in the information to have attempted to commit the crime of rape upon Lula Sue Davis, a Negro girl, 15 years of age.

The prosecutrix testified that she had known the defendant several months; that they attended the same church in Tulsa; that on July 11, 1946, she had started to town to pay some utility bills for her mother; that she had just left' a revival meeting at the church and saw the defendant’s car standing at the corner near the church; that she asked the defendant if he was going down town and told him that she would give him a car coupon if he would permit her to ride with him to the business district where she was to pay the utility bills. The • defendant invited her into the automobile, but instead of going down town he made the statement that he had to drive out on North Peoria street to a lumber company to procure a box; that he continued up North Peoria and drove out into the country near an oil and gas lease in Osage county where he stopped the automobile at a secluded spot; that he there undertook to force his attentions upon her in the car by trying to hug and kiss her, but that she resisted; that he then undertook by force and violence to have sexual intercourse with her in the car, but that she scratched him, bit him, and fought him; that he finally by force and violence dragged her out of the automobile, forced her to the ground, pried her legs apart and attempted to have sexual intercourse with her, but that she continued to fight and resisted him to such an extent that he finally abandoned his efforts; that she got back into the automobile with him and they drove back toward Tulsa, and he commenced to beg her not to report what had occurred, but that she told him that she intended to tell her mother; that defendant then said that he was going to continue driving around with her until she agreed not to report what had occurred; that while the defendant was driving her around he passed within about a block of where her mother was working and she jumped from the automobile and ran to report the incident to her mother.

The mother, together with a policeman and police matron, to whom the mother reported the alleged attack immediately, testified to the appearance of the girl at that time. Her clothing was torn and dirty, and the girl was highly nervous. The defendant was arrested the next day and he had scratches on his face, and also teeth marks where he had been bitten.

The defendant denied that he attempted to assault the prosecutrix, but admitted taking the ride with her. He testified that during the ride, the question of sexual intercourse arose and the prosecutrix agreed to commit the act with him for $5; that he only had $2 with him and that she took that and refused to give him his money back and also refused to have sexual intercourse with him; that the only time he assaulted her, if she was assaulted, was in an effort to recover his money, and that in scuffling with her he had no intention of raping her or having sexual relations with her.

Several witnesses also testified to the good reputation which the defendant bore in the community in which he resided.

Counsel who appeared for the defendant before the Criminal Court of Appeals was not the same counsel who represented him in the trial of the case.

In the brief of defendant, two propositions are presented: First, it is alleged that the court committed error in allowing the witness, Charles Cass, to testify in rebuttal concerning an alleged statement by the defendant made while in custody concerning an offense not charged in the information and that the admission in evidence of this statement was of another and separate offense than that charged in the information and was prejudicial and improper.

On cross-examination of the defendant, counsel for the state brought out by questioning that shortly after the defendant had brought the prosecutrix back to the city of Tulsa, he procured a friend, T. J. Hale, to go and talk to the mother of the prosecutrix to see if he could not prevent her from filing charges against him.

The record discloses that the following questions and answers were then made:

“Q. You thought you had had intercourse with this girl, didn’t you? A. No, sir. Q. You didn’t think so? A. I sure didn’t. Q. You told Mr. Cass while on the way up here from Tulsa that you had? A. No, sir, I didn’t. Q. —that you had that girl, with your privates out on top of her and you were so excited you thought you had penetrated her? A. No, sir, I didn’t. Mr. Tillman: We object to that as incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Tillman: Exception. By Mr. Carman: Q. On the day you were brought from Tulsa by Sheriff Cass, I will ask you if you did not tell him that you had had intercourse with this girl on that occasion? Mr. Tillman Objected to as incompetent, irrelevant and immaterial and repetition and it has been asked and answered over our objection. The Court: Overruled, let him answer. Mr. Tillman: Exception. By Mr. Carman: Q. Did you tell Mr. Cass that? A. No, sir, I didn’t. Q. You didn’t do it? A. No, sir, I didn’t.”

In rebuttal Mr. Charles Cass, sheriff of Osage county, testified that he arrested the defendant, and that while transporting him from Tulsa county to Osage county, the defendant stated that he had had sexual intercourse with the complaining witness on July 11, 1946.

The contention is presented that the testimony of the sheriff was an effort to prove a separate and independent crime from that charged in the information and the general rule is cited that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and .evidence should not be admitted to show that he has committed another wholly independent crime. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.

We adhere to the rule contended for by the defendant as will be disclosed by reading the above citations. However, such rule is not applicable to the situation here presented. The prosecutrix testified that the defendant forced her legs apart and got on top of her, and when she reported it to her mother she thought that she had been raped. An examination, however, by the county physician did not disclose an actual penetration. The testimony of the sheriff that the defendant stated that he had committed the sexual act with the prose-cutrix would have been competent as a part of the state’s case in chief to show the state of mind of the defendant and that he thought he had actually completed an act of sexual intercourse. A proper predicate was laid for introducing this evidence in rebuttal by questioning the defendant concerning this statement on cross-examination. The defendant denied making the statement to the sheriff and it was proper for the sheriff to testify to such statement in rebuttal. The fact that defendant stated that he thought he had completed the crime is admissible against the defendant, even though the prosecution is instituted for the attempted crime and not for the completed offense. The completed offense includes the attempt to commit the act, but the attempt is merged in the consummated crime if the act is completed.

It is next contended that the court erred in admitting evidence in rebuttal of an alleged attempted pay off by parties other than defendant and not in the presence of the defendant. This alleged error is directed to evidence concerning the witness, H. G. Weaver, who was called to testify on behalf of the defendant. On direct examination, after inquiry by counsel for defendant, he stated that he had no interest in the outcome of the case. On cross-examination, for the purpose of showing the interest of the witness in the outcome of the case and to affect his credibility, the county attorney asked him if he didn’t go over to see the mother of the prosecutrix after the case was filed and offer her $500 to try to get the case dismissed. At the time these questions were asked, no objection was interposed by counsel for the defendant. The witness denied making such offer to the mother of the prosecutrix. On re-direct examination, counsel for the defendant asked the following question :

“Q. I don’t know what suggestion has been made; but have you ever heard of any offers of $500 or five cents to anybody in connection with this case? A. I haven’t heard of it.”

In rebuttal the mother of the prosecutrix was recalled as a witness and testified that on the night of July 11, 1946, H. G. Weaver came to her house and offered her $500 to see that defendant was not,arrested or prosecuted in the case.

Since the early case of Cecil v. Territory, 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457, courts of Oklahoma have been committed to the rule that evidence of negotiations for a settlement of the crime, by way of offers to pay money to the prosecutrix, or her parents, which are carried on by relatives or friends of defendant, is not admissible against defendant, unless it is shown that such person or persons were acting for defendant and by his direction and authority.

However, the evidence complained of was not offered for the purpose of showing an attempted compromise of the prosecution by defendant. The witness Weaver has testified on direct examination that he had no interest in the outcome of the case. The question asked on cross-examination concerning his attempt to prevent the prosecution of defendant was for the purpose of showing that he did have an interest in testifying on behalf of defendant.

By statute it is provided:

“No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.” 12 O. S. 1941 § 881.

In construing this statute it has been held that on cross-examination of a witness, he may be asked as to any matter which tends to disclose his friendship or bias in favor of either party to the litigation for the purpose of affecting the credibility of the witness. Felice v. State, 18 Okla. Cr. 313, 194 P. 251; Pryor v. State, 37 Okla. Cr. 102, 257 P. 335; Durant v. State, 32 Okla. Cr. 288, 240 P. 1088; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.

In Pryor v. State, supra, it is held:

“The cross-examination of a witness is not limited to the particular matters asked about on direct-examination. Inquiry may be made tending to show the interest, animus, bias, or prejudice of the witness. For such pxir-pose the evidence is not collateral, but direct.”

If the state had offered to show the attempted bribery of the mother of the prosecutrix by Weaver as a part of its case in chief without a showing that it was done under the authority and direction of the defendant, it would have been error; but when counsel for the defendant used Weaver as a witness on behalf of the defendant, he opened the field for inquiry by the state of the attempted bribery of the mother by the witness for the purpose of showing the interest of the witness in the outcome of the case and for the purpose of affecting his credibility.

The jury decided the disputed question of fact as to the guilt of the defendant. The fact that defendant was found guilty and escaped a penitentiary sentence may be laid to the fact that he was an ex-soldier and that prior to this alleged offense he bore an excellent reputation in the community where he lived.

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

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


text:
    ELMER WILSON EVELAND v. STATE.
    No. A-10882.
    July 7, 1948.
    (195 P. 2d 771.)

      John Singletary, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in er-Tor.
   JONES, J.

The defendant, Elmer Wilson Eveland, was jointly charged by information filed in the district court of Oklahoma county, with one Willie Thomas Hendricks, with the crime of burglary in the second degree allegedly committed on October 20, 1946, by breaking and entering a brick building located at 2504 North Walker street in Oklahoma City, which was occupied by the Safeway Grocery store, with intent to steal certain personal property contained in said building. A severance was granted, the defendant Eveland was tried, convicted, and sentenced to serve seven years in the State Penitentiary, and has appealed.

No brief has been filed on the behalf of the defendant, but this court has read the entire record for the purpose of seeing whether there were any fundamental or prejudicial errors which prevented the defendant from having a fair trial.

The evidence was circumstantial against the defendant, but the circumstances are almost conclusive of his guilt. He and his companion were arrested across the street from the grocery store shortly after it had been burglarized. They were in possession of articles which had been taken from the store building which had been entered. The fingerprints of the defendant were found on the inside of the building.

The defendant testified in his own behalf. He said that he had entered the store the day before his arrest for the purpose of making a purchase and had placed his hands on the metal fruit stand where his fingerprints were later found, but specifically denied that he had committed the burglary. The defendant admitted on cross-examination that he had been given a sentence in the penitentiary of from one year to life upon conviction of the crime of robbery with firearms in the State of Illinois.

In the petition in error it is alleged that the trial court committed error in allowing the fingerprint expert who testified for the state to be endorsed as a witness. The record discloses that the name of one of the witnesses in question was endorsed on the information on November 14, 1946, which was five days before the case was called for trial.

On the day of the trial the names of two additional witnesses were endorsed on the information without objection on the part of counsel for defendant. No continuance was asked by counsel for the defendant to enable him to meet the evidence to be offered by the witnesses and at the hearing on the motion for new trial, counsel for defendant admitted upon inquiry by the assistant county attorney that he knew the two officers whose names were endorsed on the information on the day of the trial and knew their duties at the police department which was in the fingerprinting division.

The endorsement of witnesses on the information may be permitted at anytime within the sound discretion of the court. Tit. 22 O. S. 1941 § 384; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Thomas v. State, 20 Okla. Cr. 151, 201 P. 662; Harrell v. State, 36 Okla. Cr. 225, 253 P. 516.

An examination of the record discloses no substantial error. The judgment and sentence of the district court of Oklahoma county is affirmed.

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


text:
    Ex parte WOODROW COMBS.
    No. A-11036.
    July 7, 1948.
    (195 P. 2d 772.)

      Woodrow Combs, pro se.
    Mae Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding filed in this court by the petitioner, Woodrow Combs, to secure his release from the State Penitentiary at McAlester, Okla. The verified petition alleges, in substance, as follows, to wit: that on the 6th day of December, 1933, in the then Third Judicial District, Honorable Enloe V. Vernor, Judge, presiding, the petitioner pleaded guilty to larceny of an automobile and was sentenced to serve a term of five years in the State Reformatory at Granite, Okla. Said sentence was thereupon suspended during good behavior of the petitioner herein. Subsequent thereto by legislative action the numerical designation of the district court within and for Muskogee county was changed from the Third Judicial District to the Eighth Judicial District, and the Honorable O. H. P. Brewer had succeeded to the office of district judge for the district court within and for Muskogee county. On September 30, 1937, there was presented to the Honorable O. H. P. Brewer sitting as judge of the district court in and for the Eighth Judicial District for Muskogee county, Okla., an application for revocation of the suspended sentence imposed against the petitioner herein on December 6, 1933. Said revocation was requested upon the grounds that petitioner, Woodrow Combs, had written numerous “hot checks” upon his father. Witnesses were sworn and examined in open court and an order was made and entered setting aside the order suspending the sentence of Woodrow Combs, and directing that the petitioner be committed to the State Penitentiary at McAlester for a term of five years from September 30, 1937. At the time of the revocation petitioner was 24 years of age.

Upon said verified petition this court issued a rule to show cause. The respondent C. P. Burford responded, in substance, to the effect that the petitioner was being held under and by virtue of the commitment, judgment and sentence by the district court of Muskogee county, Okla., on a plea of guilty to the crime of larceny of an automobile and upon which plea he was sentenced to serve a term of five years in the State Reformatory at Granite, Okla., which said sentence was suspended. Thereafter, as alleged in petitioner’s petition, on September 30, 1937, the suspended sentence was revoked and changing the place of imprisonment to the State Penitentiary at McAlester, Okla. Petitioner commenced the service of his sentence on October 14, 1937. On December 21, 1938, he was granted a parole by E. W. Marland, then Governor, which said parole was revoked and the petitioner re-committed to the State Penitentiary on September 14, 1946, to complete the service of his unexpired term of five years. That by reason of said facts the petitioner was not being unlawfully detained. It is well to note that at this time the petitioner had attained the age of 35 years.

Tu tbe brief supporting tbe petition for writ of ba-beas corpus, it appears that after petitioner was granted a parole by E. W. Marland nothing transpired until September 14, 1946; that at that time tbe defendant was arrested in California and returned to Arizona for giving a bad check. Thereupon his parole was revoked in Oklahoma and he was held for the authorities of the Oklahoma State Penitentiary. It further appears that thereafter, on October 11, 1947, he was returned from the Arizona State Penitentiary to the Oklahoma State Penitentiary to complete the service of the balance of the sentence of five years, where he is now being detained.

Petitioner urges that the original sentence was in the Third Judicial District and the revocation was in the Eighth Judicial District, and that therefore the court was without jurisdiction to pronounce the revocation and contends that the court was without jurisdiction to sentence him to McAlester, Okla., under the provisions of § 992, Title 22, O. S. A. 1941, providing upon revocation of a judgment and sentence the convict “shall be delivered forthwith to the place of confinement to which originally sentenced, and shall serve out the full term for which he had originally been sentenced”, that by reason of said provision he should have been re-committed to the reformatory at Granite.

In relation to the petitioner’s contention that he was originally sentenced by Judge Enloe V. Yernor from the Third Judicial District Court sitting in and for Muskogee County, Okla., and that his revocation was before Honorable O. H. P. Brewer sitting in and for the Eighth Judicial District Court of Muskogee County, Okla., the same is wholly without merit. Jurisdiction of the district court is determined not by means of numerical designation or in terms of the personality occupying the office of judge of said court, but is determined by venue, the place where the offense was committed; by whether or not the court has jurisdiction of the subject matter as defined by the Legislature; jurisdiction of the person of the defendant; and by whether or not the court had authority under the law to pronounce the judgment and sentence rendered. Here the alleged automobile larceny occurred in Muskogee county, Okla., where the numerical designation of the district court at said time was that of the Third Judicial District. Subsequent thereto the Legislature changed the numerical designation of the district of which Muskogee county was a component part to that of the Eighth Judicial District. At the time the original sentence was pronounced the personality occupying the Third Judicial District office of judge was then Judge Enloe V. Yernor. When another numerical designation was given to said district (that of the Eighth) a new and different personality occupied said bench in the person of Honorable O. H. P. Brewer, but the court was still the district court in and for Muskogee county. The venue remained the same, the charge remained the same, the defendant was the same, and being present in person when the matter was considered for revocation, the said district court in and for Muskogee county had authority to revoke the said suspended sentence. Jurisdiction to revoke 'a suspended sentence cannot be defeated by a change in the personnel of the court by fortunes of an election, by death or by removal, or by the necessity for a legislative change in the composition and numerical designation of the judicial district. If that were true justice would often be denied the state by a mere turn of the wheel of fortune. The law must be clothed with greater stability. It is therefore apparent that the technical changes relied on by petitioner to defeat jurisdiction in the case at bar, such as a different numerical designation by the Legislature of a district court, or change in the personnel of the court, will not defeat jurisdiction and the petitioner’s contentions relative to the lack of jurisdiction of the Eighth Judicial District to revoke the suspended sentence are wholly without merit.

In relation to the petitioner’s next contention to the effect that the district court was without authority to commit him to McAlester, and instead he should have been re-committed to Granite upon the revocation of said suspended sentence, we must call attention to the fact that at the time the original judgment and sentence was pronounced the petitioner was then 20 years of age. It is also pertinent to call attention to the fact that at the time of the revocation of said suspended sentence the petitioner was then 24 years of age and his suspended sentence was revoked for what appeared to the court to be additional violations of law. It is also well to again observe that at the time he was re-committed to McAlester on October 11, 1947, after having attained the classification of being a repeat violator, he was then 35 years of age.

In construing the foregoing provision of § 992, Title 22, O. S. A. 1941, the language therein used must be construed in connection with the other statutes bearing upon the court’s determination of the place of confinement, and, if possible, all of such statutes must be construed together as was said in Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276, 279. In the Neighbors case we also said:

“Title 57 O. S. A. § 105 thus makes it clear that the legislature intended the penitentiary to be. the place of confinement of ‘confirmed criminals or persons who have theretofore seen convicted of a felony and served a term in any penitentiary either state or federal/ * * *” (Italics ours.)

The said Neighbors case further held that under the provisions of Title 57, O. S. A. 1941, § 281:

“* * * It is clear that the legislative purpose in establishing the reformatory was to provide a place of confinement for persons between the ages of 16 and 25 years, and whose sentence was not in excess'of five years. But, whether a person whose sentence does not exceed five years is sent to the reformatory or the penitentiary is a matter within the sentencing court’s discretion. However, all persons between the ages of 16 and 25 years who are sentenced by the court to the reformatory may not be permitted to serve their sentence there, for § 281 provides:
“ ‘All persons between the ages of sixteen and twenty-five heretofore convicted of any crime * * * shall be confined at either the Oklahoma State Reformatory or the State Penitentiary in the discretion of the State Board of Public Affairs.’ ”

In commenting upon the latter provision in the Neighbors case, we said:

“It is apparent that the latter provision was intended to empower the State Board of Public Affairs to effect the legislative intent as to the segregation of confirmed criminals, repeat violators, hardened criminals from first offenders, and persons whose crimes fall within the category of penitentiary cases as defined in Title 57 O. S. A. § 105.”

It is therefore apparent that in the Neighbors case construing the sections of the statutes therein involved, an attempt was made to harmonize said sections of the statutes with reference to legislative intent as applied both to the court’s sentencing power and the transferring power of the State Board of Public Affairs. The same objective as to harmony can be attained herein. In the Neighbors case we held that neither the courts nor the Board of Affairs are permitted to act arbitrarily, maliciously, or capriciously in effecting a change in the place of confinement. Therein we also said that the designation of the place of confinement is an administrative and not a judicial act. Moreover, we held that the Legislature has full authority to provide prisons, and to determine where prisoners may be sent; and the courts have no discretion as to the place to which criminals may be sentenced except as the Legislature gives it. In the case at bar, were the petitioner still of the age of 20 years, under the circumstances herein involved (the petitioner’s revocation not being based upon a conviction ) in revoking the suspended sentence, the court would have no other alternative than to re-commit the petitioner to the reformatory to Granite. However, if the petitioner had been 25 years of age or had placed himself within the classification of being a repeat violator, in harmonizing the provisions of § 992, Title 22, O. S. A. 1941, with the other provisions of the statutes relative to the place of confinement it would not have been an abuse of judicial discretion upon the revocation of petitioner’s suspended sentence to commit him to the penitentiary at McAlester, Okla. We are of the belief that Judge O. H. P. Brewer believed the petitioner had placed himself in the position of a repeat violator and that his place of confinement therefore should be changed to the penitentiary at McAlester. The trial judge was apparently attempting to harmonize § 992, Title 22, O. S. A. 1941, with the other statutes relative to the place of custody and confinement of one convicted of crime. It is not necessary for the court now to pass on that exercise of judgment by the trial court, for certainly, under the present state of facts herein involved, the petitioner being a repeat violator at the age of 35 years and now being confined upon a revocation of Ms parole, he would not be entitled to be re-committed to the reformatory at Granite under the provisions of §! 992, Title 22, O. S. A. 1941. After having attained the classification of a repeat violator under the authority of the statutes and the Neighbors case, supra, the Board of Affairs would have to transfer the petitioner to the penitentiary at McAlester. Under the circumstances herein involved, this court will consider done that which should be done, especially where what is being done is in conformity with the statutes. It would be a vain gesture to sustain this petition returning petitioner to the reformatory at Granite, that the transfer might now be effected back to McAlester by the Board of Affairs, because of the changed status of the petitioner from first offender under 25 years of age to that of a repeat violator 35 years of age. The sensible thing to do is to sustain the present custody, if the place of present confinement is in conformity to the plain provisions of the statutes. We hold that it is. Since the present place of custody and confinement is within the classification prescribed by the statutes, this court will not disturb the same. It appearing from the petition and the facts herein involved that the place of custody and place of confinement of petitioner is according to law, and the contentions of the petitioner are without merit, the petition for writ of habeas corpus is therefore accordingly denied.

BAREFOOT, P. J., and JONES, J., concur.