text:
    M. A. FOWLER v. STATE.
    No. A-1932.
    Opinion Filed October 24, 1914.
    (143 Pac. 658.)
    APPEAL — Dismissal. Where an appeal is taken from an alleged judgment of conviction in a criminal ease, and the transcript of the record or case-made contains no copy of the judgment of the trial court, such record or case-made presents no question to this court for its determination, and the appeal will ■ be dismissed.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge.

    M. A. Fowler was convicted of the offense of pandering, and appeals.
    Appeal dismissed.

      Baldwin & Carlton, T. G. Cutlip, and W. M. Taylor, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, M. A. Fowler, was charged by information, jointly with Curt Leonard, W. R. Ed-mons, Mattie Edmons, Rena Beck, and J. L. Hopkins, with the crime of pandering. A severance was granted, and upon his separate trial a verdict of guilty as charged was returned, and his punishment assessed at two years' imprisonment in the penitentiary and a fine of $300. This is a companion case to that of Edmons v. State, 9 Okla. Cr. 603, 132 Pac. 923.

An appeal was attempted to be taken by filing in this court on March 12, 1913, a petition in error with case-made. The petition recites:

“That the state of Oklahoma on the 22d day of October recovered a judgment by consideration of the superior court of Pottawatomie county against the plaintiff in error, M. A. Fowler, in a certain action pending in the superior court, wherein the state of Oklahoma was plaintiff and the said M. A. Fowler was defendant.”

An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error. By numerous decisions of this court it has been held that this court will not review the proceedings of the trial court, unless the record or case-made- contains a copy of the final judgment from which the appeal is taken. Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328; Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535; McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876. The case-made contains a copy of the verdict and motion for new trial, and there is a recital that the motion for new trial was overruled on the 22d day of October, 1912, and time allowed to perfect an appeal to this court. Inasmuch as the case-made does not contain a copy of the judgment of the trial court, we are of the opinion that this court is without jurisdiction to consider the appeal.

The purported appeal is therefore dismissed.

ARMSTRONG, P. J., and FURMAN, J, concur.


source: Caselaw Access Project

author: DOYEE, J.

license: Public Domain

text:
    GROVER ARMSTRONG v. STATE.
    No. A-1935.
    Opinion Filed November 5, 1914.
    (143 Pac. 870.)
    1. HOMICIDE — Eight to Defend Domicile — Extent. A man has the right to defend his domicile against every unlawful invasion and to defend himself and those within it against every and all violence, without the necessity of retreat, even to the extent of taking life, if it be actually or apparently necessary to do <. so in order to prevent the commission of a felony thereon or therein.
    2. SAME. “A man’s house, however humble, is his castle; and his castle he is entitled to protect against invasion;” and a man in his own habitation has a right to resist force with force and repel the entrance against his will of one who in a violent manner attempts to enter for the manifest purpose of assaulting or offering violence to him, or to inmates under his protecting care, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent such unlawful entrance.
    (Syllabus by the Court.)

      Appeal from District Court, Texas County; R. H. Loofbourrow, Judge.

    Grover Armstrong was convicted of manslaughter in the first degree, and appeals.
    Reversed.

      Harris & Breslin, M. G. Wiley, and J. 0. I^ynch, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYEE, J.

This appeal is prosecuted from a judgment and sentence rendered on the 20th day of November,. 1912, in accordance with the verdict of the jury, finding the defendant, Grover Armstrong, guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for the term of four years.

Upon the trial it appeared: That the defendant, Grover Armstrong, at the time of the commission of the homicide, was living at the home of his brother, Ed Armstrong, in the south central part of Texas county, about 30 miles from the town of Tex-homa, and about 40 miles from Guymon, the county seat. The deceased, Elmer Pendergraft, resided in the same community at a distance of about one and one-half miles from the Armstrong home. On the night of November 6, 1911, the defendant shot and killed Elmer Pendergraft near the home of Ed Armstrong, who was at that time on a visit with his father and mother in Logan county. At the time there.were at the home of Ed Armstrong his wife and their three children, the eldest being a little girl about nine years of age, and the defendant. The Armstrong family lived in what is known as a half dugout. ..The fiont entrance had two doors; one a trap or drop door that lifted up with a pulley arrangement, and one at the foot of the steps that opened into the house proper. That on Friday, November 3d, the defendant left home and went to the town of Texhoma, returning the next day. That upon his arrival home Airs. Armstrong told him that Elmer Pendergraft had been .there Friday night and had raped her, and had threatened to kill the whole family if she told any one. That Mrs. Armstrong advised her husband by letter of the outrage that had been committed on her. That on the night of November 6th, about 9 o’clock, the deceased came to the Armstrong home on horseback. When he reached the dugout he made his presence known by hallooing, and then opened the outer door of the dugout. Airs. Armstrong recognized his voice, and told him to leave or go away. The defendant picked up a double barrel shotgun, and, standing in the door at the foot of the steps, asked the deceased what he was doing there. The deceased replied: “What! you here, you God damn son of bitch, I will fix you.* As he said this he threw up his arm. The defendant fired a shot, and, stepping upon the steps, fired the gun again. Mrs. Armstrong and her three little girls and the defendant climbed out of a window and went to the home of a neighbor and reported the shooting. The body of the deceased was found the next morning near the dugout. One load of shot had entered the left breast, except two shot entering the left forearm. Both wounds ranged upward.

From a careful examination of the record the conclusion of the court is that the judgment in this case must be reversed. Of the 50 assignments of error we will notice only those which in the new trial granted will be liable to arise again. Several assignments of error refer to the rulings of the trial court in sustaining the objections to evidence offered by the defendant. Mrs. Clara Armstrong, as a witness for the defendant, testified to the circumstances of the shooting. She was then asked the following questions:

“I will ask you what, if any, circumstances between yourself and Mr. Pendergraft happened on the night of November 3, 1911? (Objection sustained.) Q. Did you see Elmer Pender-graft on the night of November 3d at your home? A. Yes, sir. Q. I will ask you if on the night of November 3, 1911, the deceased, Mr. Pendergraft, came to your house, and by force and with a revolver ravished you? (Objection sustained.) Q. Did you communicate the fact of this ravishment, if there was one, which has been excluded by the court, to your brother-in-law, the defendant? (Objection sustained.) Q. Did you, at any time, tell Grover Armstrong, in a conversation which you and he had about the outrage that this deceased had committed upon you on November 3, 1911 ? A. Yes, sir.
“Mr. Mr. Gleason: Object to the question as incompetent, irrelevant, and immaterial and no proper foundation laid, and ask that the answer be stricken out.
“By the Court: Objection sustained, and the jury will not regard the answer.”

Thereupon the court directed the jury to retire, and the following offer of proof was made:

“Plere the defendant offers to prove by the witness, Mrs. Clara Armstrong, that on the night of November 3d, previous to the homicide which is alleged in the information in this case, that the deceased came to the house of Mrs. Armstrong, who is a sister-in-law of the defendant, and where the defendant resided, and was the oniy male person residing at that place, and that the deceased entered the house with a revolver while the defendant was absent; that at the point of a revolver, and with threats of the life of herself and her family and the life of this defendant should she ever 'tell it, he forced her to allow him to have sexual intercourse with her; that he ravished her, and that upon the returning home of this defendant this witness, Clara Armstrong, communicated these threats to this defendant; that the defendant returned to his home, which was the home of this witness and that of his brother, Saturday, November 4th; that immediately upon his return, which had been the first time she had seen him since the said ravishment occurred, she communicated these facts to the defendant in this case; that thereupon the defendant procured a shotgun and loaded it.
“By the Court: The objection to the offer is sustained.”

The defendant as a witness in his own behalf testified to the circumstances of the shooting. The record is then as follows :

“Q. I will ask you to state to the jury what was the occasion of you having your gun at that time, and what did you shoot for? (The state objects.)
“By the Court: You may answer that question, but in answering it'you will not repeat conversations you had with other persons than the deceased.”

An exception was taken. The court directed the jury to retire, and the following offer of proof was made:

“The defendant offers to prove that on the night of the 3d day of November, 1911, that the deceased came to the house ■of Ed Armstrong, and there at that time forcibly assaulted his wife and forced her, under a threat with a gun, to have sexual intercourse with him; that when the defendant came home on Saturday evening Mrs. Armstrong cried, and told him of the assault which had been made upon her, and what she had been forced to do in order to save the lives of herself and her children. The defendant further offers to prove that, thinking and believing that the deceased intended to carry out his threat, he got a shotgun; that on Monday night when the deceased did come back he was warned to leave the premises by the defendant; that he refused to do so, and when the doors were opened to the place of residence, which was a dugout, that the deceased threatened then and there to fix or impliedly to kill the whole outfit, as he had formerly threatened to do to the wife of Ed Armstrong if she told of his treachery. The defendant further offers to prove by this witness that on Saturday afternoon, November 4, 1911, Mrs. Ed Armstrong communicated to this defendant a certain threat made by the deceased toward this defendant and herself, in substance as follows: That if she (Mrs. Armstrong) told of his (Pendergraft’s) having ravished her on the Friday night previous, that he (Pendergraft) would kill the whole damn outfit. (The state objects.) By the Court: The objections to the offer are sustained.”

After cross-examination on redirect examination, the defendant was asked the following question:

“Q. You knew he had ravished your sister-in-law at that time, didn’t you? A. Yes, sir.
“By the County Attorney: Objected to as incompetent, irrelevant, and immaterial, and we don’t think it is proper to keep asking these questions.
“By the Court: Objection sustained, and the jury will not regard the answer, and counsel will not pursue a course that I have sustained objections to.”

After the state and the defendant had rested, the court took a recess to prepare the instructions. Thereafter when court convened the court said:

“Gentlemen, in this case, after considering the matter, I have concluded that I ought to permit the case to be reopened and the defense to offer, or to prove, rather, any threats that were made and communicated to Mr. Armstrong.”

Thereupon the defendant was recalled as a witness in his own behalf, and testified that he left home on Friday about 11 o’clock, and went to Texhoma, and returned Saturday evening about 5 o’clock. His further testimony is as follows:

“Q. At that time did your sister-in-law communicate to you anything that had been said by the deceased in the way of a threat against you or her or the family? (Objection overruled.) A. She said that on the night before—
“By Mr. Gleason: I think the witness ought to be cautioned to confine himself to what was said in the nature of threats.
“By the Court: You can prove any threats that he made against him.
“By Mr. Wiley: Does the court hold that I cannot prove any threats against the family, which was immediately in his custody? We have an express statute on it.
“By the Court: I know, but you will have to come within the terms of that statute in other respects. If you will limit that matter simply to threats, you can go ahead; you know what I don’t want'to come in.
“A. Well, she said that he was there the night before and threatened to kill her and the whole family.
“By Mr. Wiley: If the court please at this time we would insist on the other matter which was ruled out, but I understand the court has not changed his ruling on that matter.
“By the Court: Yes, that is correct; I have not changed my mind on that.”

Mrs. Clara Armstrong, being recalled, testified as follows:

“Q. I will ask you, when Grover Armstrong came home on Saturday evening, whether or not you communicated to him any threat that had been made by the deceased? A. Yes, sir; I did. Q. What did you tell him'? A. I told him that he had been there and ravished me, and threatened me under a gun that he would take my life and all the rest of us if I ever told it.
“By Mr. Gleason: I move that the witness’ testimony be stricken out as incompetent, irrelevant, and immaterial, and hearsay, and no foundation laid.
“By the Court • I will let the answer remain in the record the way it is.”

The question is: Was the evidence offered and excluded by the court competent and admissible as an element of the defense? The Attorney General does not defend the rulings of the court, but contends that, if there had been any previous errors committed by the trial court in this regard, the same were cured by the admission of this testimony when the court reopened the case.

We think that the evidence offered was competent and admissible, and that its exclusion by the court constituted reversible error, and we cannot agree with the contention that the error in the exclusion of such evidence was cured by the testimony admitted after the case had been reopened. The right of a man to defend his domicile against every unlawful invasion and to defend himself and those within it against every and all violence without the necessity of retreat, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent the commission of a felony thereon or therein, has been clearly defined by the statute.

It is provided in the Penal Code (section 2334, Rev. Taws 1910) :

“Homicide is also justifiable when committed by any person in either of the following cases:
“First. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
“Second. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,
“Third. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.”

In Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375, the court, construing the foregoing section, said:

“The law in its humanity will not justify the taking of life to repel a mere trespass, or invasion of the home without felonious intent or in resisting a nonfelonious assault; but a man who is without fault may repel force with force in defense of his person, habitation, or property against any one or many who manifestly intend and endeavor with violence to commit a felony thereon or therein. In such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if in the conflict between them he happens to kill him, such killing is justifiable.”

Upon the admitted facts in the Collegenia case, it was unnecessary to determine the precise limit of the domiciliary right. We think the general rule is that a person within his dwelling house may use such means as are absolutely necessary to repel an assailant or prevent his forcible entry, even to the taking of life.

Another provision of the Penal Code (section 2342 of Rev. Laws 1910) is as follows:

“To use or attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:
“First. * * *
“Second. * * *
“Third. When committed either by the party about to be injured, or b)' another person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”

Says Wharton:

“An attack on a house or its inmates may be resisted by taking life. * * * (3) Aside from these two grounds, which may be also regarded as included in the right of prevention of felonies, the occupant of a house has a right to resist, even to the death, the entrance of persons attempting to force themselves-into it against his will, when no action less than killing is sufficient to defend the house from entrance; and even the killing' of an officer of the law, known to be such, endeavoring thus tO’ intrude, is not murder, but manslaughter. A man’s house, however humble, is his castle; and his castle he is entitled to protect against invasion. The rule is to be traced to old times when the peace of the body politic, as well as of individuals, depended upon the maintenance of the inviolability of houses as castles. And the rule continues to exist when there is an equal reason for the maintenance of the inviolability of houses as homes.” (1 Wharton Crim. Law [10th Ed.] par. 503.)

See, also, 1 Bishop's New Cr. Law, sec. 858.

A man in his own habitation may resist force with force, and repel the entrance against his will of one who in a violent manner attempts to enter for the manifest purpose of assaulting or offering violence to him or to inmates under his protecting care, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent such unlawful entrance.

The evidence excluded was competent and admissible for the purpose of showing that the defendant had reasonable ground of apprehension of imminent personal injury, not only to himself, but to those within his habitation, and evidence that the deceased had a few nights before invaded the defendant’s home, armed with a deadly weapon, and had committed a felonious assault upon an inmate, would tend to the conclusion that the defendant, when he fired the fatal shot, knew, or had reason to believe, that the killing was necessary, not only to defend himself against loss of life or great bodily harm, but also to prevent an unlawful entrance into his habitation, and thereby defend those within it against loss of life or some great • personal injury, and for this reason the evidence offered should have been admitted, and the exclusion of the same must have necessarily operated to deprive the defendant of a fair determination regarding his guilt or innocence.

We do not deem it necessary to consider in detail the numerous assignments predicated upon instructions given and refused, further than to say that in the instructions given the court ignored all distinctions between a homicide committed in self-defense in a public place where both parties have equal right, and a homicide committed by a person in his own habitation to prevent an unlawful entrance against his will, with a purpose of assaulting or offering personal violence to him or to other inmates of his home.

Accordingly the instructions given by the court limited the -defense to self-defense alone, and the jury were instructed that, in order to justify the killing, the defendant must in good faith have believed that the killing was necessary either to preserve his own life, or prevent his receiving great bodily harm. The defendant requested the court to give instructions on the right •of defense by a person in his own habitation and the right to defend his habitation from unlawful entry and the right to defend the persons within against an assailant. The court refused to give the requested instructions.

It is our opinion that the trial court, in rejecting the evidence offered, and in refusing to give requested instructions, denied to the defendant the right to have a jury, properly instructed as to the law, say by their verdict whether he went further than the law justified in defending his habitation against a forcible and unlawful entrance, and in the necessary protection of its inmates.

A careful review of the record impels the conclusion that the conviction in this case was the result of the erroneous rulings of the court. The judgment of conviction must therefore be reversed, and the case remanded to the district court of Texas county for further proceedings not inconsistent with the views expressed in this opinion.

ARMSTRONG, P. J., and FURMAN, J., concur.


author: ARMSTRONG, P. J.

text:
    HARRISON JENKINS v. STATE.
    No. A-2124.
    Opinion Filed November 7, 1914.
    (145 Pac. 500.)
    1. TRIAL — Instructions—Information. The trial court should avoid writing his instructions so as to cover the surplus language used in an information. The charge of the court should be reasonably concise and clear, and should conform to the charge set forth in the information.
    2. INTOXICATING LIQUORS — Prosecution — Information-—Instructions — Appeal—Presentation for Review, (a) When an appeal is by transcript only, this court will not undertake to determine questions raised by the petition in error argued in the briefs which cannot be correctly determined without the aid of the testimony produced at the trial.
    (b) An information which uses the language "sell, barter, give away, or otherwise furnish” has been held by this court to charge a sale only. The trial court should not include in his instructions the general language "give away and otherwise furnish” under an information which charges a sale only.
    (c) When the state relies on the giving away or otherwise furnishing^ intoxicating liquor as a subterfuge for a sale, the facts must be pleaded in order that the court may determine whether or not a crime has been committed.
    S. APPEAL — Instructions—Presumption of Innocence — Harmless Error. The court should always include in his charge to the jury an instruction upon the presumption of innocence, but when the jury is instructed fully upon the doctrine of reasonable doubt, and it clearly appears that the failure to instruct on the presumption of irinocenee was an oversight, and resulted in no injury to the accused, that no exception was taken by counsel, and the court’s attention was not called to the oversight, this court will not reverse a conviction upon that ground alone.
    4. ARRAIGNMENT AND PLEAS — Plea of Guilty — Withdrawal—Discretion. When a person charged with crime is arraigned and enters a plea of' -not guilty, the court, in its discretion, may allow the plea to be withdrawn in order to grant the accused an opportunity to file a plea to the jurisdiction of the court or attack the information by demurrer.
    5. SAME — Time to Plead — Withdrawal of Plea. If a plea of not guilty has been entered to an information, and the trial court grants permission to withdraw the plea for any purpose, the accused person is entitled to such delay or time in which to plead anew to the original information as the court in its discretion may deem just.

      6. COURTS — Records—Correction. A transcript of the record is defined by the statute, and this transcript cannot be impeached by affidavits or other statements. The trial court can correct errors in a transcript or other records by proper proceedings and nunc pro tunc orders, but counsel cannot correct transcripts or records by filing affidavits or inducing the clerk to include over his certificate matters which are not part of the transcript as defined by the statute.
    (Syllabus by the Court.)

      Appeal from County Court, Bryan County; J. L. Rappolec, Judge.

    Harrison Jenkins was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Sprowls & Stone, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Harrison Jenkins, was convicted at the September, 1913, term of the county court of Bryan county, sitting at Durant, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 90 days. This appeal is by transcript only. The information follows:

“Comes now Walter J. Turnbull, the duly qualified and acting county attorney in and for Bryan county, state of Oklahoma, and gives the county court of Bryan county and state of Oklahoma, to know and be informed that the above-named defendant, Harrison Jenkins, late of Bryan county, did, in Bryan county, and in the state of Oklahoma on or about the 1st day of July, in the year of our Lord one thousand nine hundred and thirteen, commit the crime of violating the prohibition laws, in the manner and form as follows: That is to say, the defendant did in said county and state, at the above-named date, unlawfully and willfully, sell, barter, give away and otherwise dispose of certain spirituous liquors, to wit, one pint of whisky to J. A. Strutton, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

It is contended that the court erred in giving instruction No. 2, which instruction is as follows:

“You are therefore instructed, if you find from the evidence in this case beyond a reasonable doubt that the defendant, Harrison Jenkins, did, within Bryan county, Okla., on or about the 1st day of July, 1913, unlawfully and willfully sell, barter, give away or otherwise furnish one pint of whisky or any amount whatsoever, to one J.. A. Strutton, as charged in the information, then and in that event the defendant would be guilty as charged, and you should so find in your verdict; otherwise the defendant would not be guilty, and you should so find in your verdict.”

The instructions of the court should conform to the charge contained in the information and correctly state the law. Counsel having failed to bring up a transcript of the testimony, the court is not in position to determine definitely what the proof was, but it is ajjparent that the state relied upon an unlawful sale. Instruction No. 2 clearly indicates that fact. We are of opinion that instruction No. 2 should not have been given in the language it was given, but we cannot say it was error prejudicial to the rights of plaintiff in error, in the absence of a complete record. A correct instruction in this cause should have submitted only the proposition of whether or not an unlawful sale or barter was made within the contemplation of the statute, because that is all the information properly charges. Any person interested in the making of a sale is guilty under the law.

It is next contended that the court erred in failing to instruct upon the presumption of innocence. This instruction should always be given, but we are of opinion that in this case this oversight was unintentional, and was also without prejudice. Counsel failed to call the court’s attention to the matter at the time, and failed to save any exceptions to the instructions on that ground. In Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237, we said:

“Where the court failed to instruct upon the presumption of innocence, but did instruct the jury fully upon reasonable doubt, and where the defendant did not request any instruction on the presumption of innocence or save an exception to the action of the court in neglecting to charge on this presumption, a conviction will not be reversed because the court omitted to give said instruction.”

It is next urged that the court erred in the matter of allowing time within which to plead. The transcript shows that when the information was filed the plaintiff in error ' entered .a plea of not guilty; that later he asked to withdraw the plea, which was granted, and filed a dilatory motion, which was overruled ; that he then asked for further time in which to plead. The court granted him half an hour. Counsel fail to bring this case within the statutory rule. There was no error in this proceeding by the court. Counsel had no right to withdraw the plea in order to delay the trial, and, when the withdrawal was allowed, the time given within which to plead was in the discretion of the court, and there is nothing in the transcript to indicate an abuse of that discretion.

It is next urged that the court erred in sentencing the prisoner to pay a fine of $150 and imprisonment in the county jail for a period of 90 days. The contention of counsel is that the judgment should conform to the verdict, but no copy of the verdict is disclosed, except the recital in the judgment shown by the transcript, which reads as follows:

“We, the jury impaneled and sworn in the above-entitled case, do iipon our oaths find the defendant guilty as charged in the information and assess his punishment at $150 and 90 days’ imprisonment in the county jail.”

Counsel have included a notation from the judge’s docket, which is as follows:

“Time set for sentencing Monday, Sept. 15th, 1913. _ Sept. 15. Sentence to 30 days and $150.00.”

These later notations are no part of the transcript of the record, and could not be used to impeach the record proper or the recital of the verdict as it appears in the judgment. If, as a matter of fact, the court had made a mistake in rendering judgment, imposing 90 days imprisonment, when the jury intended only SO days by their verdict, a proper motion to correct the judgment to conform to the verdict should have been made and proof offered to establish the fact. No such steps were taken. In fact, the judgment rendered and the verdict, as shown by the recital in the judgment, are the same. Each imposes 90 days’ imprisonment and a fine of $150. Counsel undertake to impeach the record by filing an affidavit. This court has heretofore said that the record could not be impeached in any such manner. These corrections, if made at all, must be made by the trial court in the manner prescribed by law.

We have carefully reviewed the record, and find no error sufficient to justify a reversal.

The judgment of the trial court is therefore affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of sickness.


author: ARMSTRONG, J.

text:
    ANTON KRIVANEK v. STATE.
    No. A-2345.
    Opinion Filed November 21, 1914.
    (144 Pac. 188.)
    APPEAL — Time for Proceeding — Dismissal. Procedure Criminal, sec. 5991 (Eev. Laws 1910) provides that: "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.” Held, that when ah' appeal is not taken within the time prescribed by this section of the statute, this court is without jurisdiction to review it, and such appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from County Court, Canadian County; W. A. Maurer, Judge.

    Anton Krivanek was convicted of violating the prohibitory law, and he appeals.
    Dismissed.
    •S'. A. Byers, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

This is an attempted appeal from a judgment of conviction entered on the 4th day of April, 1914, wherein the defendant was sentenced in accordance with the verdict of the jury to pay a fine of $150, and to be confined in the county jail for 40 days. An appeal was attempted to be taken by filing in this court on October 3, 1914, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal for the reason that the same was not taken until long after the expiration of the time allowed by law within which to perfect an appeal in a misdemeanor case.

Our Procedure Criminal provides that:'

“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.” (Section 5991, Rev. Taws 1910.)

This court has repeatedly held that the appeal must be perfected within the time prescribed by the statute, and that this court does not acquire jurisdiction unless the appeal is taken within the statutory time. High v. State, 9 Okla. Cr. 183, 131 Pac. 189; Welch v. State, 9 Okla. Cr. 33, 130 Pac. 514; Houser v. State, 8 Okla. Cr. 292, 127 Pac. 706; Eaton v. State, 7 Okla. Cr. 48, 121 Pac. 1089.

In this case 181 days had elapsed after the judgment was entered before the petition in error was filed in this court. As the court failed to acquire jurisdiction, the motion to dismiss must be sustained. The purported appeal is therefore dismissed, and the cause remanded to the trial court.

DOYTE and FURMAN, JJ., concur.


author: DOYLE, J.

text:
    BILL BROWDER v. STATE.
    No. A-2118.
    Opinion Filed November 21, 1914.
    (144 Pac. 188.)
    1. TRIAL — Instructions—“Reasonable Doubt.” An instruction defining a reasonable doubt as one that the jury are able to give a reason for is erroneous, as requiring jurors to give reasons for their conclusions.
    .2. INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. See opinion for evidence considered and held insufficient to support the verdict.
    (Syllabus by the Court.)

      Appeal from County Court,, Stephens County; J. W. Marshall, Judge.

    Bill Browder, convicted of unlawfully selling liquor, appeals.
    Reversed.

      J. B. Wilkinson, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Spilman, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction on an information charging that Bill Browder did “unlawfully sell to Bill Jones and Sant Elliott one pint of intoxicating liquor, contrary to/’ etc.' On the 12th day of September, 1913, judgment was entered in accordance with the verdict of the jury. The court sentenced, the defendant to be confined in the count)'' jail for 30 days and to pay a fine of $50.

It is only necessary to pass upon the question of the sufficiency of the evidence. The following is in substance the testimony introduced at the trial:

Bill Jones testified: That on or about the 15th day of February, in 1913, he was in Duncan with Sant Elliott, and they went into a house in the south part of town, and Elliott asked for some whisky, and a man there in bed said they had nothing but “White mule,” and they paid a dollar for a pint. That he did not know the man, and did not know who lived there, except what he was told. Over the defendant’s objection he was permitted to testify that the officer told him Bill Brow-der lived there. On cross-examination he was asked:

“Q. This is Bill Browder in front of you; look at him. Would you say at this time that he is the man who was in that bed, and that you bought that ‘White mule’ from? A. I cannot say whether he is the man or not.”

T. A. Boykin testified that he was undersheriff and knew the defendant; that he went with Bill Jones to locate a place where he said he had bought whisky. The place was on the west of Mrs. Duncan’s. Jones said he was sure that was the place. Nobody lived there at the time. The defendant, Bill Browder, formerly lived there.

The only other witness who testified was Dr. H. A. Conger, who testified that, as a physician, he attended the defendant, who had pneumonia two weeks in February; during that time he was at the defendant’s house daily, and sometimes two or three times a day. The defendant was living in a house on the corner west of Mrs. Duncan’s.

In view of all that appears from the record, we are convinced that this defendant should have a new trial. Sant Elliott, named in the information, and who, according to the testimony of the complaining witness, purchased the whisky, was not produced as a witness. Bill Jones testified that he could not identify the defendant as the man who made the sale. Over the defendant’s objection he was permitted to testify that the un-dersheriff told him the defendant lived at that place, and the undersheriff was permitted to testify that Bill Jones told him he was sure that was the place where he bought the whisky. This was mere hearsay testimony, therefore incompetent and inadmissible. It cannot be said that the error in admitting this incompetent testimony did not affect the substantial rights of the defendant. If the complaining witness could not identify the defendant as the person who made the sale, we cannot see how the jury could be satisfied, beyond a reasonable doubt, of the defendant’s guilt.

It also appears that the court gave an instruction defining the term “reasonable doubt” as one that the jury are able to give a reason for. Following the case of Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, 129 Am. St. Rep. 818, such a definition has been uniformly condemned as erroneous by this court.

For the foregoing reasons, the judgment of conviction is reversed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    R. N. WOOD v. STATE.
    No. A-2034.
    Opinion Filed November 21, 1914.
    (144 Pac. 391.)
    1. TBIAL — Instructions—Presumption of Innocence. An instruction in these words, “In this ease, if you should believe from the evidence that the defendant bought the property in question at the town of Bromide, openly and publicly, in good faith, and was not concerned, or aided and abetted others in the theft of the cow, then, if you should so find, you could not convict the defendant, and it would bo your duty to acquit him," held prejudicial error, in that it deprives the defendant of the benefit of the presumption of innocence, which prevails until the contrary is proved by competent evidence, and places the burden of proof on hini to establish his innocence.

      2. SAME — Evidence—Order of Proof — Discretion. The introduction of testimony out of its order rests in the discretion of the trial court, and it may admit, on rebuttal, testimony which is properly a part of the state’s ease in chief, but where the county attorney knew, before the trial commenced, that a codefendant ■ would be called as a witness for the state, but intentionally failed to indorse his name on the information, and held this witness back until after the defense rested, it was an abuse of discretion to permit the name of this witness to be indorsed on the information, and to admit on rebuttal his testimony to facts belonging to the case in chief.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; John Caruthers, Assigned Judge.

      R. N. Wood was convicted of larceny, and appeals.
    Reversed.

      A. T. West and Mont P. Highley, for plaintiff in error.

      Chas. West, Atly. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error, R. N. Wood, Byrd Jackson, and Leslie Sinclair were jointly informed against for the larceny of a cow, the personal property of Johnson Cohee. Plaintiff in error demanded and was granted a separate trial. The trial resulted in a verdict of guilty, as charged in the information, and his punishment fixed at imprisonment in the penitentiary for a period of eight years.

According to the state’s theory, the plaintiff in error hired and employed his codefendants to steal the cow. Testimony showing the theft of the cow and the defendant’s possession was introduced in chief. The defendant moved the court to direct a verdict of acquittal, which motion was denied.

Plaintiff in error, as a witness in his own behalf, testified that he conducted a restaurant at Bromide; that Leslie Sinclair sold him the cow for $27; that he gave him $4.50 in cash and a check for $22.50, balance of the purchase price, which check was introduced in evidence; that he had the cow put in a pasture a quarter of a mile north of town.

Seven or eight witnesses testified that they were in the plaintiff in error’s place of business when Leslie Sinclair came in and offered to sell the cow; that the plaintiff in error went with him, presumably to look at the cow; that they returned shortly, and, after some propositions and counter propositions between them, plaintiff in error bought the cow from Leslie ■Sinclair, paying him part in money and part by check.

When the defense rested, the court, over the objection of the plaintiff in error, permitted the county attorney to indorse on the information the name of Leslie Sinclair, a codefendant, and, without being discharged from the information, Sinclair became a voluntary witness for the state on rebuttal, and testified that he was hired by the plaintiff in error to steal^the cow.

Of the numerous errors assigned, it is only necessary to pass upon two. The first is that the court misdirected the jury, to the prejudice of the substantial rights of the defendant, by giving instruction No. 6. The instruction is in these words:

“The court further instructs you that, while the possession of stolen property recently after the theft, if unexplained, is a circumstance that you may consider as tending to show the guilt of the possessor, still in this case, if you should believe from the evidence that the defendant bought the property in question at the town of Bromide, openly and publicly, in good faith, and was not concerned, or aided and abetted others in the theft of the cow, then, if you should so find, you could not convict the defendant, and it would be your duty to acquit him.”

We are of opinion that this instruction was prejudicial error. It in effect deprives the defendant of the presumption of innocence guaranteed to him by the law of this state, and shifts the burden of proof by requiring him to establish his defense by a preponderance of the evidence. It is the law that a defendant, in a criminal action, is presumed to be innocent until the contrary is proved by competent evidence, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Similar instructions have been condemned by numerous decisions of this court. Washmood v. U. S., 10 Okla. Cr. 254, 136 Pac. 184; Nichols v. State, 10 Okla. Cr. 247; 135 Pac. 1071; Vaughn v. State, 9 Okla. Cr. 121, 130 Pac. 1100; Clendenning v. State, 3 Okla. Cr. 379, 106 Pac. 540; Rea v. State, 3 Okla. Cr. 270, 105 Pac. 381; Frazier v. U. S., 2 Okla. Cr. 657, 103 Pac. 373; Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355.

It is also contended that the court erred in permitting the indorsement of the name of and in admitting on rebuttal the evidence of Leslie Sinclair. The manifest purpose of requiring the names of witnesses to be indorsed upon the indictment or information is to inform defendant upon whose testimony the state relies to secure a conviction, so that he may know what evidence he may reasonably expect to be offered against him; and this in order to enable him to prepare for his defense. The introduction of evidence out of its order rests in the discretion of the trial court. It may admit new testimony on rebuttal which is properly a part of the state’s case in chief, and it may in its discretion, upon a showing, permit the state to reopen a case for the introduction of new evidence in chief at any stage of the trial, and it is often necessary to exercise this discretion in the furtherance of justice. The testimony of the witness Sinclair was not rebuttal in the ordinary acceptation of that term; however, it was clearly competent as testimony in chief. The county attorney knew, before the trial commenced, that this codefendant would voluntarily testify as a witness for the state, and that he would be called as a witness for the state, but failed to indorse his name as a witness on the information, and intentionally held this witness back to testify on rebuttal.

In the case of Nelson v. State, 5 Okla. Cr. 368, 114 Pac. 1124, it is held that it is an abuse of discretion for the trial court to permit the county attorney to withhold the names of material witnesses until the case is called for trial, and then allow them to be indorsed on the indictment or information. We think that, under the circumstances of this case, the trial court abused its discretion in permitting the county attorney to indorse the name of this witness on the information and in admitting this testimony on rebuttal.

We are of opinion, for the reasons herein expressed, the defendant did not have a fair trial. Wherefore the judgment is reversed, and the case remanded.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    E. M. BRYAN v. STATE.
    No. A-2321.
    Opinion Filed November 28, 1914.
    (144 Pac. 393.)
    1. LARCENY — Indictment—Requisites. An indictment based on section 2667, Rev. Laws 1910, should contain the following allegations: (1) The felonious taking and asportation of the property in question without the knowledge or consent of the owner; (2) the ownership of said property; (3) the felonious intent to deprive the owner of the same and the felonious intent to convert to the takers own use.
    2. SAME — Sufficiency. Por an indictment which is held insufficient under section 2667, Rev. Laws 1910, but which would have been good under the general larceny statute had it contained an allegation as to the value of the animal taken, see opinion.
    3. TRIAL — Sufficiency of Proof — Reasonable Doubt, (a) When thé^evidence on the part of the state fails to make out a case beyond a reasonable doubt, the verdict is contrary to the evidence.
    (b)When the witnesses on behalf of the state fail to testify to the essential facts necessary to establish the crime charged, it cannot be said, as a matter of law, that the court and jury are satisfied beyond a reasonable doubt of the guilt of the person on trial.
    4. WITNESSES — Competency—Persons Jointly Charged. When two or more persons are jointly charged with the commission of an offense, either is a competent witness for or against the other when he voluntarily elects to become such.
    5. SAME — Party in Interest, (a) The common-law rule excluding parties in interest or to the record from being witnesses in the cause has been eliminated by statute in this state.
    (b) To exclude a codefendant from testifying when he is not on trial would have the effect of keeping the rule in force when the reason therefor has been abrogated by statute.
    6. WITNESSES — Evidence—Competency of Codefendant, (a) When a person jointly charged with the commission of a crime by an indictment or information is not on trial himself, and voluntarily elects to become a witness for a codefendant who is on trial, he is subject to cross-examination the same as if he were not charged, and is nol entitled to claim any exemptions from answering questions which might be incriminating, which grow out of the transaction under consideration.
    (b) The fact that a witness is a codefendant affects only his credibility. This is the only effect that a conviction would have under our statute.
    (Syllabus by the Court.)

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    E. M. Bryan was convicted of larceny of a domestic animal, and appeals.
    Reversed.

      T. P. Shackelford, for plaintiff in error.

      L. C. McNabb, Co. Atty., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, E. M. Bryan, was convicted at the May, 1913, term of the district court of Sequoyah county on a charge of larceny of a domestic animal, and his punishment fixed at imprisonment in the state penitentiary for a term of five years. The information upon which the conviction is based is as follows:

“In the name and by the authority of the state of Oklahoma, now comes L. C. McNabb, the duly qualified and acting county attorney in and for Sequoyah county, state of Oklahoma, and gives the district court of Sequoyah county, state of Oklahoma, to know and be informed that E. M. Bryan and Doc Tatum did, in Sequoyah county, in the state of Oklahoma, on or about the 13th day of December, in the year of our Lord one thousand nine hundred and thirteen, and anterior to the presentment hereof, commit the crime of larceny of a domestic animal, in the manner and form as follows, to wit: That is to say, they, the E. M. Bryan and Doc Tatum, in the cpunty and state, and on or about the date aforesaid, then and there being, did then and there unlawfully and feloniously and by fraud and stealth take, steal, and carry away a certain domestic animal, to wit, a black and white spotted hog, further description not known to the county attorney, the property of IT. S. Cole, with the felonious intent on the part of them the said E. M. Bryan and Dock Tatum to deprive him, the said H. S. Cole, thereof contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

When the case was called for trial defendant Tatum elected a severance and the plaintiff in error, Bryan, was • placed on trial.

The testimony introduced on behalf of the state was entirely circumstantial. The prosecuting witness, Cole, testified that he had been unable to find certain of his hogs; that on the 13th day of December he and his son were searching for them; that they saw plaintiff in error near an old house; that he had a wagon and team, and Dock Tatum was with him; that when he got near the house the plaintiff in error drove away; that he followed them; that plaintiff in error got out of the wagon and went into some woods near by, then came back to the wagon and drove up to a gate, where he (Cole) overtook him; that he inquired about his hogs, and that plaintiff in error told him he had seen them at different places; that in the wagon was a freshly dressed hog with its head severed. Cole, after some conversation with plaintiff in error and Tatum, returned to the place that plaintiff in error had been seen at the edge of the woods, and found the head of a hog covered up with leaves. On cross-examination this witness testified as follows:

“Is that your hog’s head there? A. I couldn’t swear positively that it is. O. Was that your hog that you saw in the wagon? A. I couldn’t say that it was; I couldn’t swear positively that it was. Q. Don't you know it was not? A. No, sir; I don’t. Q. You won’t swear to this jury that it was your hog? A. No, sir. Q. You don’t know the color of that hog? A. No, sir. Q. You don’t know the sex of that hog, do you? A. No, sir.”

The testimony of Bennie Cole, son of the prosecuting witness, is practically the same, including the cross-examination, as that of his father.

On behalf of the plaintiff in error, Ida Bryan, his wife, testified that they were moving from one farm to another on the date her husband was accused of committing the offense in question; that Dock Tatum and her husband brought the hog in question home on the 13th of December; that the hog was dressed, the head was severed from the jowl and badly mutilated, that the ears were intact, and bore her husband’s mark; that she gave the head to the dogs.

Plaintiff in error testified on his own behalf that he owned the hog in question; that it bore his mark; that he killed the same, and he detailed the circumstances. He denied getting out of the wagon as testified to by the prosecuting witness.

The first assignment of error is based on the contention that the court erred in overruling the demurrer to the information. The information is based upon section 2667, Rev. Laws 1910, which is as follows:

“Any person in this state who shall steal any horse, cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for a term of not less than one year nor more than ten years: Provided, that where the horse or horses stolen are proven to be work stock the punishment shall be not less than three years nor more than ten years. The word ‘horse’ as used in this section shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.”

Under this section of the statute it is necessary to plead and prove the following facts: The felonious taking and asportation of the property without the knowledge or consent of the owner; the felonious intent to deprive the owner thereof and to convert the same to the taker’s own use; and the ownership of the property in question. In Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, we said:

“When a prosecution is predicated upon section 2606 [Comp. Laws 1909, which is section 2667, Rev. Laws 1910, referred to supra], to support a conviction, the ownership of the animals stolen must be alleged and proved, and it is necessary to allege and prove a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his (the taker’s) own use, which specific proof is not necessary to support a conviction under the general larceny statute.”

The information in the case at bar does not charge an offense under section 2667, Rev. Laws 1910, supra. Neither does it charge an offense under the general larceny statute, for the reason that the value of the animal taken is not set forth. It follows, therefore, that the demurrer should have been sustained.

The next assignment of error is based upon the contention that the verdict is contrary to the evidence. It will be observed from the testimony supra that the prosecuting witness was absolutely unable to identify the property in question as his property or to testify that the plaintiff in error stole his hog, and no other evidence supplies this deficiency. Just how a court and jury can be satisfied beyond a reasonable doubt that the plaintiff in error is guilty when the prosecuting witness does not know, and the testimony on behalf of the state fails to show this fact, is not apparent. Certainly a court and jury acting under their oaths could not reach a more positive conclusion than the prosecuting witness himself. The plaintiff in error may be guilty and may be a thief, but the state’s evidence fails wholly to establish guilt as required by law. This conviction is clearly contrary to the evidence. The state should make a stronger case on a retrial of this cause if it is to be tried again.

It is next contended that the court erred in refusing to permit Dock Tatum, who was jointly charged by the information with this offense, to testify on behalf of plaintiff in error. The record shows that Tatum was called as a witness for plaintiff in error. The county attorney objected to his testifying, on the ground that he was jointly charged by the information with the commission of the offense. The court sustained the objection; the effect of his holding being that a person jointly charged with the commission of an offense could not become a witness for the person on trial until after he had been tried or discharged from prosecution. The principle involved in this contention is settled by this court in Buxton v. State, ante, 143 Pac. 58, wherein we say:

“The only assignment remaining which requires notice is that ‘the court erred in overruling the defendant’s motion for an instructed verdict for the defendant A. B. Buxton.’ The record shows that, at the close of the state’s evidence in chief, defendant A. F. Buxton requested the court to instruct the jury to return a verdict of not guilty as to A. F. Buxton, and that the court stated that, at the close of the evidence, he would hear defendant on the proposition of so advising the jury. After the evidence was all in, and before the case was argued, the county attorney moved the court to advise the jury to acquit defendant A. F. Buxton. Thereupon the court so instructed the jury, and stated: ‘If the jury concur in the opinion of the ■court, you may sign this verdict by one of your number as foreman, and, if not, you may indicate it, and I will prepare the general instructions. (The jury indicate that they prefer to wait until they go to their jury room to consider their verdict.)’
“Our Procedure Criminal provides: ‘If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.’ (Section 5896, Rev. Laws 1910.)
“Defendant John Buxton contends: ‘That he was entitled to have the testimony of his codefendant given under circumstances most favorable to him; at least, not unnecessarily unfavorable to him.’
“Under the statute, the jury are not required to take the advice given by the court. Whether or not the court erred in this respect depends upon the effect to be given the following statutory provisions:
“Section "5046; Rev. Laws, provides: ‘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.’ There are certain statutory exceptions to this provision which have no bearing upon the questions involved.
“Procedure Criminal (section 5882, Rev. Laws) provides: ‘Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases.’
“Section 5881 (ReV. Laws) provides: ‘In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness.’
“Under section 5046 (Rev. Laws), all persons are competent witnesses, unless shown to be within the statutory exceptions, and the reason for many rules of the common law, based on the incompetency of parties, has ceased to exist.
“Under section 5881, in all criminal trials ‘the person charge# with crime shall at his own request, but not otherwise, be a competent witness.’
“By these provisions, when a defendant requests to be a witness, and takes the witness stand in his own behalf, he has voluntarily changed his status from defendant to witness, and he becomes a competent witness for all purposes. It does not matter whether his testimony is for or against himself, or for or against his codefendant. The only limitation in the statute is that he cannot be compelled to testify either for himself, his codefendant, or for the state, while he is a party in the case. The following provisions of our Procedure Criminal prescribe the manner and mode of compelling a codefendant to testify as a witness, conditioned upon his ceasing to be a party in the case: .
“Section 5879 (Rev. Laws 1910) provides: ‘When two or more persons are included in the same indictment or information the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.’
“Section 5880 (Rev. Laws 1910) provides: ‘When two or more persons are included in the same indictment or information, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.’
“The record does not show that defendant John Buxton requested the court to discharge his codefendant, or moved the court to direct a verdict of acquittal on the ground that the evidence for the state was insufficient to put his codefendant on his defense, and in order that he might be compelled to be a witness for his codefendant, John Buxton. The motions to acquit were made by defendant A. F. Buxton in his own behalf. The record does show, that this defendant's codefendant on his own request became a witness, not only in his own behalf, but in behalf of his codefendant, John Buxton, as well. The court further charged the jury as follows: ‘You are instructed that the court is of the opinion that the testimony in this case is insufficient to warrant a verdict of guilty against the defendant A. F. Buxton upon a charge of murder, or of manslaughter in the first degree, and that you should return a verdict of not guilty as to the defendant A. F. Buxton.’
“If it were shown b3r the record that, when the state closed its evidence in chief, defendant John Buxton announced that he intended to use his codefendant as a witness, the point raised would be properly presented. We think that, in the absence of such a showing, this defendant cannot be heard to complain. It further appears upon the whole record that there could have been no prejudicial error in the court’s ruling, so far as it related to defendant A. F. Buxton’s motion to direct a verdict of acquittal, as defendant John Buxton had the full benefit of the testimony of his codefendant as a voluntary witness in his behalf.”

In McGinness v. State, 4 Wyo. 115, 53 Pac. 492, the Supreme Court of Wyoming, in discussing the principle herein involved, said:

“The common-law rule excluding parties in interest or to the record from the witness stand is no longer of efficacy when the statute permits a defendant to testify. To exclude a co-defendant from testifying, when * * * not on trial, for the defendant on trial, in a criminal case, is to keep alive a rule, if ever in force in such' cases, when the reason for the rule is gone. * * * If interest and being a party to the record do not exclude a defendant on trial from the witness stand, upon what reasoning can a codefendant, not on trial, be adjudged incompetent ?”

The county attorney in his brief urges that, if Dock Tatum had been permitted to testify, it would have worked a hardship on the state, for the reason that he would not have had to give any testimony incriminating himself. This contention is without foundation. Dock Tatum could not be forced to testify, but if he was a willing witness, and there is nothing to indicate that he was not such for plaintiff in error, when he took the- stand he waived his right to claim immunity and decline to answer incriminating questions arising out of the transaction, and the state would have the right to cross-examine fully on all material propositions involved in his testimony. The common-law rule disqualifying persons charged with crime as witnesses is eliminated in this state by statute. The question of whether or not a person jointly charged shall voluntarily take the stand for his codefendants is one for his own determination, and when he has concluded to act as a witness, the court is without authority in law to deny the plaintiff in error the right to have his testimony. It is entitled to go to the jury for what it is worth. The fact that he was jointly charged with the plaintiff in error is before the jury, who are the sole judges of credibility. If this were not the rule, important witnesses could be prevented from testifying, no matter how innocent they might be of the charge, or how- valuable their testimony might be to a codefendant. The law does not contemplate that the state shall have the right to dismiss a prosecution and use a witness in its own interest and at the same time have the right to file an information arbitrarily and deprive any person on trial of valuable testimony. No unreasonable advantage is intended to be conferred on the state by the law, and no unfair privilege to any person on trial. A conviction under our statute would not have the effect of disqualifying a witness in this character of cases. Then why should the fact that some individual or official had filed a complaint against him disqualify any person to testify? The proposition of whether or not a witness has been convicted goes only to his credibility. The fact that one is jointly charged with the person on trial could have no greater effect. The Supreme Court of Oklahoma Territory, in Miller v. Territory, 15 Okla. 422, 85 Pac. 239, said:

“An accomplice, separately indicted and separately tried, after conviction is a competent witness, either on behalf of the defendant or for the prosecution.” •

It appears to be the general rule under statutes similar to ours that, where a person is jointly charged with the commission of a felony and separately tried, each is a competent witness for or against his codefendant when he voluntarily elects to become such. See People v. Newberry, 20 Cal. 439; State v. Bogue, 52 Kan. 79, 34 Pac. 410. See, also, United States v. Pord, 99 U. S. 594, 25 L. Ed. 399.

The foregoing are the only assignments which we feel called upon to discuss. For the reasons indicated, the judgment is reversed, and the cause remanded, with directions to the trial court to permit the filing of a new information if the county attorney desires to prosecute further.

DOYEE, J., concurs. EURMAN, J., absent on account of sickness.


text:
    DAN SCRIBNER v. STATE.
    No. A-1634.
    Opinion Filed December 5, 1914.
    (144 Pac. 626.)
    1. HOMICIDE — Sufficiency of Evidence — Verdict. (a) When an examination of the entire record and a review of all the facts discloses the commission of a wanton and deliberate assassination, and that, beyond question, the person convicted fired the fatal shot without semblance of justification, this court will not reverse a conviction, unless the record discloses fundamental error which did, or was reasonably calculated to, deprive the person on trial of substantial rights.
    (b) For facts held sufficient to sustain a conviction of murder, see opinion.
    2. APPEAL — Harmless Error — Instructions—Reasonable Doubt. For an instruction which is not sufficiently erroneous to justify a reversal of conviction under the record, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Seminole County; Tom D. McKeozvn, Judge.

    Dan Scribner was convicted of murder, and appeals.
    Affirmed.
    See, also, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985.

      Cr azoford & Bolen, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Dan Scribner, was convicted at the October, 1911, term of the district court of Seminole county on an indictment charging him with the murder of Zeke Putman, and his punishment fixed at imprisonment in the state penitentiary for life. The indictment alleges that the homicide occurred on or about the 16th day of January, 1909. The homicide occurred in the town of Allen, in Pontotoc county, and was a cold-blooded assassination. The deceased was shot while standing inside a store building by some one concealed in the dark outside of the building. The weapon used was apparently a 12-gauge shotgun loaded-with gunpowder and buckshot. Ed Johnson was jointly charged with the plaintiff in error, by the indictment, of the murder. He confessed to the crime, and testified on behalf of the state in the prosecution.

It was the theory of the state that the plaintiff in error, induced Johnson to assist him in the murder; that for the perpetration of the murder they were to receive 120 acres of land from one'Mack Lee. Some time prior to this homicide it appears that the deceased had killed Clarence Lee, a brother of Mack Lee. A short time before Christmas in 1908 the plaintiff in error met’Johnson in the town of Ada, and told him that Mack Lee would give them 120 acres of land to kill the deceased, who had been charged with killing a brother of Lee. At that time Johnson refused to have anything to do with the matter. On Christmas eve the plaintiff in error again saw Johnson and told him he wanted him to go with him to Allen to kill Putman. Johnson declined, saying that he had nothing against Putman, or that he didn’t think Putman had anything against him. The plaintiff in error stated that Putman had said that Johnson swore a lie in his trial, meaning the trial of Putman for killing Clarence Lee, and made a number of other statements to him. He finally agreed to go. They were to meet at Stonewall. ■ The plaintiff in error was to go to Stonewall on horseback, and Johnson-was to go on the train. Late that afternoon they met at the home of John Scribner, brother of the plaintiff in error. That night they went to the home of Mack Lee, armed with six-shooters. Lee was away, but came home during the night. They spent Christmas day at his house. About dark they left Lee’s for the town of Allen. One of them rode a bay mare and the other a bay.horse. Upon arriving at Allen the horses were hitched a short distance from a blacksmith shop. It appears that a number of persons had gathered at the blacksmith shop and were shooting anvils, among them the deceased. During the celebration the clothing of one Thompson caught on fire. He ran out into the street, and Putman followed him to put out the fire. The plaintiff in error attempted to shoot Putman at this time, but Johnson interfered, and they got on their horses and returned to Mack Tee’s where they spent the night. About the last of December the plaintiff in error and Johnson moved to Idabel, in McCurtain county. About the 10th or 11th of January the plaintiff in error came into the house where Johnson and the plaintiff in error were living, at Idabel, and said that he had a letter from Mack Tee advising that he had to come up and pay off a note. The wife of plaintiff iir error remarked, “I guess you will have to go.” The two left Idabel on that day, and were seen by Jim Thompson, Bud Gregg, and Bill Nutt. Johnson told them he was going to Texas. Plaintiff in error told them he was going to Hugo. Just before the train left Idabel plaintiff in error told Thompson he was not going up the road at all. When seen by Thompson in Hugo after the train arrived there he was reminded of his statement, and replied that he had said he was not going, but he did. At Hugo Gregg talked to Johnson and the plaintiff in error. The plaintiff in error said he wanted to see a party at Durant. Johnson said he was going to Durant and from there to Texas. They went to Durant that afternoon and from there to Atoka. While in Atoka plaintiff in error bought some shells for a 12-gauge shotgun. The shells were loaded with buckshot.

Witness Patterson testified that he saw Johnson and plaintiff in error together at Atoka. From Atoka they went to Stonewall, and from there to John Scribner’s house, about a mile or so in the country. At John Scribner’s house were two or three boys. One of these boys was sent by John Scribner to Stonewall to get a shotgun. The boy was named Perriman. He testified that he went and got the gun, which was a 12-gauge shotgun, but did not get any shells. The gun was procured from the store of J. R. Reeves.

Witness Ballew, a member of the Reeves firm, testified that he sent the gun to John Scribner about the time Putman was killed; that John brought it back on the 23d of January, and paid $2.25 rental for the use of the same. Witness further testified that a short time before Putman was killed John Scribner had made arrangements with him to rent the gun. From John Scribner's, Johnson and plaintiff in error rode a bay pacing horse and a roan mare to the home of Mack Lee and carried the gun with them. Arriving at Lee’s they called him out and had a talk with him. Fie saddled a horse and went with them to the home of Lifley Impson, a mile or two away, where they stayed all night. It appears that Impson was a brother-in-law to Mack Lee. They stayed in the vicinity of Impson’s all the next dajc During the day they -took some drinks, and something was said about having come to do the job if Lee wanted it done. That night they went to the town of Allen to kill Putman. It appears that this was Wednesday night. Arriving at Allen, they hitched their horses and secreted themselves behind a pool hall and store, but did not locate Putman. They returned to Impson’s and stayed all night and all the next day and Thursday night'. Friday night they returned to the town of Allen, and hitched their horses to the fence of Dr. Gillmore, and again secreted themselves behind the pool hall and store. They saw Putman in the store. The plaintiff in error tried to shoot him, but the gun failed to fire. Witness Ballew testified that he afterward sold this gun,to a person. by the name of Mann. Witness Mann testified that the gun would frequently fail to fire from the right barrel. When the gun snapped Putman flinched and came out of the back door of the store. Johnson squatted beside the house and plaintiff in error ran away. Witness Sweetman was in the house at the time. He came out with Putman, or rather followed Put-man out, and gave him two bottles of tin top. They thought they heard some one, but did not see any one. Johnson and plaintiff in error got their horses and went back to Impson’s, and stayed all night, and spent Saturday, the 16th, there. During the day the plaintiff in error and Johnson were out at the barn. Impson came out, and Johnson said: “Right here I am going to lay down. I am- not going to Allen tonight.” Impson then said: “Go; I will make one of you a present of a six-shooter and the other $25.” Plaintiff in error then told Impson to go get some whisky to go home on. While he was gone after the whisky the plaintiff in error went to the house and secured a Winchester belonging to Mack Pee. About 4 or 5 o’clock Imp-son returned bringing four or five pints of whisky. They drank a portion of it, and again left for Allen about dark, taking a few drinks on the way. They tied their horses at the same place, and secreted themselves about the same place that they had been the night before. Johnson was near the northeast corner of the building, and plaintiff in error near the northwest corner. In a few minutes the plaintiff in error left his position and went behind the store of one Whitehead,. and had been there only a few minutes when he shot Putman through the window. The charge entered the side of the head, death ensuing instantly. Johnson and Scribner got on their horses and left town immediately. On this latter trip the plaintiff in error was armed with a shotgun, and witness Johnson with a Winchester rifle.

Johnson testified that plaintiff in error wore arctic shoes over his other shoes. Witness Whitehead testified that he was in his father’s store the night Putman was killed, and was standing behind the counter; that Putman was standing about thirteen feet from the north end of the building, which was the rear end of the same; that there was a door in the center of the house and a window in each corner; that Putman was shot through the lower pane of the lower sash of the northeast window; that Putman was talking to Brad Plaile at the time; that deceased was shot with a No. 2 buckshot in the side of the head, and died instantly. This witness testified further that he examined the ground near the northeast corner of the building; that he observed that tracks were there made by an overshoe. The checks on the overshoe made impressions on a pile of ashes. Pie also found that two horses had been tied to the fence near by. One horse was shod all round; the other horse had only two shoes. They followed the tracks along the direction witness Johnson testified that he and the plaintiff in error rode when they left town. Johnson also testified that one of the horses they had ridden was shod all round; the other one in front only. Johnson testified that when they got back as far as Mack Lee’s they fired the Winchester and set it down by the fence. Witness Couch testified that he heard a shot fired from a Winchester or six-shooter about the time Johnson said the shot was fired. It appears that Scribner and Johnson stayed at the home of Frank Scribner on the night of the homicide; that on the way they stopped at John Scribner’s and left one of the horses and the shotgun.

Witness Perriman testified that he was at John Scribner’s about midnight, when these parties came there and called for John, and the next morning one of the horses was in the lot and looked as though it had been ridden some distance.

Witness Leader testified that he was at John Scribner’s the night of the homicide. John Scribner and his wife were at Ada that night. Two persons came about 12 o’clock and called for John. The next morning one of the horses which had been ridden by Scribner and Johnson was in the lot and looked pretty tough. On Sunday evening following witness Perriman said he saw the other horse at Frank Scribner’s. Johnson testified they arrived at Frank Scribner’s about 2 or 3 o’clock and left the other horse there. Frank and his wife were there. Frank and the plaintiff in error ran the clock back. The next morning the plaintiff in error gave Frank Scribner some of the loaded shells and an empty shell which was bursted near the hull. At this time Frank said to the plaintiff in error that his (Frank’s) wife would not swear a lie about the time they arrived at his house. Afterward it appears that witness Johnson went to Texas, and in a few days returned to Idabel, where he saw the plaintiff in error, who asked him to go to Mack Lee’s and find out what was being said about the killing. He went and Lee told him that they had him (Johnson) accused of the murder, but that he had not heard anything said about the plaintiff in error.

The plaintiff in erior did not testify at the trial. The testimony introduced in his behalf tended to fasten the crime on Johnson and contradict his statement as to the facts as outlined in his testimony on behalf of the state.

This case has been before this court heretofore. See Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985. There is no merit in the questions raised by the appeal now before us. The only assignment that we shall discuss.at all is based on an instruction given by the trial court. The instruction complained of is as follows:

“A reasonable doubt is an actual doubt that you are conscious -of after going over in your minds the entire case, giving consideration to all the testimony and every part of it. If you then feel uncertain, and not fully convinced that the defendant is guilty, and believe that you are acting in a reasonable manner, and if you believe that a reasonable man, in any matter of like importance, would hesitate to act because of such a doubt as you are conscious of having, that is a reasonable doubt, of which the defendant is entitled to have the benefit.”

It is contended that under the doctrine laid down in Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, this conviction should be reversed on account of the fact that the court gave the foregoing instruction. This instruction is entirely different from the one condemned in the Price case. A casual reading of that opinion will disclose the material difference. A better instruction might have been given by the trial court, but, under the facts disclosed by the record, it would be a miscarriage of justice for this court to reverse this conviction on this ground. The instruction in the Price case required the jury to find the reason upon which to base their doubt. The instruction given by the trial court in the case at bar is sustained, in our judgment, by the case of Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

We have carefully examined the record and briefs, and find no reason advanced by counsel sufficient to warrant the court in interfering with the judgment, and there is nothing disclosed by the record indicating that the plaintiff in error was deprived of any substantial right on the trial. In our judgment, he had a fair and impartial trial, and a judgment imposing the death penalty would not have been reversed under the state of the case presented to us. There is no contention but that the deceased, Putman, was the victim of a most deliberate and cold-blooded assassination, and no fair-minded man could read this record and be otherwise than convinced absolutely that the fatal shot was fired by the plaintiff in error. All his rights were preserved by the trial court and nothing but fundamental error would justify this court in interfering with the enforcement of the judgment.

There is not a single material proposition that could be earnestly urged as being sufficient to warrant a reversal of this cause and the granting of a new trial. The swifter and surer the punishment meted out in this class of cases the better it is for the law-abiding citizenship of the state. Finding no error in the record sufficient to justify a reversal, the judgment of the trial court is in all things affirmed.

DOYLE and FURMAN, JJ., concur.


text:
    JOEL COLLINS v. STATE.
    No. 2132.
    Opinion Filed December 5, 1914.
    (144 Pac. 806.)
    1. APPEAL — Discretionary Ruling — New Trial. A motion for a new trial, based on the ground of newly discovered evidence, is addressed to the sound discretion of the trial court, and the ruling of such court will not be disturbed by this court unless a clear abuse is disclosed by the record.
    2. TRIAL — Demurrer to Evidence — Ruling. When the evidence introduced on behalf of the state makes out a clear case, a demurrer interposed to the evidence should be stricken as frivolous.
    3. PUNISHMENT — Statutes — Amendment — Effect. Section 2667, Rev. Laws 1910, fixing the punishment for larceny of cattle at a minimum of one year and a maximum of ten years, was amended by the act of the 1911 Legislature (Laws 1910-1911, c. 39), fixing the punishment at a minimum of two years and a maximum of ten years. The adoption of the Code did not revive the punishment in said section 2667.

      4. APPEAL — Harmless Error — Instructions. The instructions of the court limiting the time within which the state is required to establish the commission of the crime charged in the case at bar from July 1, 1911, to November 8, 1912, held, not prejudicial to the rights of the plaintiff in error.
    (Syllabus by the Court.)

      Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.

    Joel Collins was convicted of larceny of domestic animals, and appeals.
    Affirmed.

      F. B. Kennamer, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Joel Collins, was convicted at the May, 1913, term of the district court of Marshall county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of two years. This cause was dismissed upon motion of the Attorney General some months ago, but later reinstated on application and proper showing of plaintiff in error, and now comes on for final disposition on the merits.

There are only four assignments of error set out in the petition in error. No briefs have been filed on behalf of the state, and no appearance made for oral argument on behalf of plaintiff in error. The record has been carefully reviewed, however, and no substantial error is found.

The first assignment is based on the contention that the court erred in overruling a motion for a new trial on the ground of newly discovered evidence. An examination of the record fails to disclose any abuse of discretion on the part of the trial court; in fact, his action was fully warranted. A codefendant, who was tried with all the evidence before the court and jury which is set out as newly discovered evidence in this case, was not acquitted by the jury, and this fact is disclosed by the showing of plaintiff in error in the cause at bar. If all the evidence set out as desired by plaintiff in error had been admitted, the jury would have been fully wai ranted in finding the verdict that was returned in this cause.

The second assignment is based on the contention that the court erred in overruling a demurrer to the evidence. This assignment is wholly without merit. Two or three witnesses swore that they saw the accused take the cattle in question and drive them away. The owner of the cattle testified that he did not sell them to him nor give him permission to drive them away. The demurrer should have been stricken as frivolous.

The next assignment of error is based on the contention that the court erred in giving the following instruction:

“The crime charged in the indictment is defined to be the taking of cattle accomplished by stealth or fraud with the intent to deprive the owner thereof and to appropriate the same to the use and benefit of the taker. And you are therefore instructed that if you believe from the evidence in this case beyond a reasonable doubt that this defendant, Joel Collins, within the time set out in instruction No. 1, and prior to the 8th day of November, 1912, in Marshall county, Okla., did, by fraud or stealth, take one cow and one heifer belonging to M. O. Carden from the possession of the said M. O. Carden, and with the intent to deprive the said M. O. Carden thereof and to appropriate the same to the use and benefit of this defendant, then it would be your duty to convict him of larceny of cattle. On the other hand, if you have a reasonable doubt of the existence at the time of any element of this crime as set forth herein, then it would be your duty to acquit the defendant.
. “Should you find the defendant guilty, it would be your duty to fix his punishment at a term in the penitentiary not less than two years nor more than ten years.”

This instruction was preceded by the following instruction:

“The state is not required to prove that the offense was committed on or about the 1st day of October, 1911, the exact date alleged in the indictment; proof of the commission of the offense at any time after July 1, 1911, and prior to the 8th day of November, 1912, the date of the filing of the indictment in this court, is sufficient to sustain the allegation in the indictment as to the time thereof.”

Section 2667, Rev. Laws, fixes the punishment for larceny of domestic animals at a minimum of one year and a maximum of ten years, but the Sess. Laws 1910-11, which superseded this provision of the statute, fixes the punishment for larceny of cattle at a minimum of two years and a maximum of ten years. The act of the 1913 Legislature, approved March 22, 1913 (Sess. Laws 1913, c. 75), finally adopting the Revised Laws of 1910 as the Code of this state, was not intended to and did not repeal any of the provision's of the act of March 3, 1911 (Sess. Laws 1910-11, c. 39), providing for the adoption of this Code, except as specifically therein set out. This latter act specifically provides that no law enacted by the Legislature subsequent -to the adjournment of the extraordinary session commenced in January, 1910, shall be construed as repealed by the adoption of the Code. Section 2, Act of March 3, 1911.

A careful reading of the instructions of the court, supra, discloses the fact that he limited the time within which the plaintiff in error could be found guilty from the 1st day of July, 1911, until the day of the filing of the indictment, which was the 8th day of November, 1912. The act of the 1911 Legislature fixing the punishment for larceny of cattle at a minimum of two years and a maximum of ten years, approved March 16th of that year, became effective 90 days after the adjournment of the Legislature. This session of the Legislature adjourned on the 11th day of March, 1911, which would have placed the statute in question in force about the 9th of June. We are of opinion that the instructions of the court were more favorable to the accused than he was entitled to receive. He could have been convicted for the larceny of the cattle in question upon proof of the commission of the offense at any time within three years prior to the filing of the indictment. The proper punishment would necessarily have been determined by the period within which the jury found thát the offense was committed. In order to avoid complications, it appears that the trial court required the jury to find that the offense was committed between July 1, 1911, and November 8, 1912, before they could return a verdict of guilty. If there is any error in these instructions, it is in favor of the plaintiff in error and not against him.

A careful examination of the record discloses no prejudicial error. The judgment of the trial court is therefore in all things affirmed.

DOYLE, J., concurs. FURMAN J., absent.


text:
    ED MACREADY v. STATE.
    No. A-2136.
    Opinion Filed December 5, 1914.
    (144 Pac. 629.)
    APPEAL — Sufficiency of Evidence — Rape. In a prosecution for statu tory rape, the evidence is held to support the verdict, and that no error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.

    Ed Macready was convicted of crime, and brings error.
    Affirmed.

      W. B. Utterback and C. B. McPherren, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Ed Macready, was convicted of the crime of statutory rape, committed on Althea Collier, an unmarried female, under the age of sixteen, years and over the age of fourteen years, on or about the 21st day of August, 1912, and in accordance with the verdict of the jury was sentenced to serve a term of five years in the penitentiary at McAlester. The judgment was rendered on the 16th day of July, 1913. An appeal was perfected by filing in this court, on December 3, 1913, a petition in error with case-made.

No briefs had been filed, and no appearance made 'on behalf of the plaintiff in error, when the case was called at the present term for final submission. For this' reason, the Attorney General thereupon moved for an affirmance of the judgment.

In cases of this kind, we do not consider it the duty of this court to examine the transcript of the testimony to determine whether or not the trial court erred in its rulings on the admission or rejection of testimony.

Upon an examination of the record we find that the evidence is ample to support the allegations of the information, and that no evidence was offered on behalf of the defendant. The information is a good one, and instructions of the court fully and fairly covered the law of the case. It appears that the trial was, in every respect, a fair one. The judgment of the district court of Bryan county is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    C. E. SILLIX v. STATE.
    No. A-2121.
    Opinion Filed November 16, 1914.
    (145 Pac. 305.)
    APPEAL — Ground for Reversal — Failure to Instruct. Procedure Criminal, see. 5933 (Rev. Laws 1910), provides that in all eases of a verdict of conviction, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law. Held, that on the trial of an information charging a misdemeanor, the failure of the court to instruct the jury that in the event they found a verdict of guilty they should assess and declare the punishment in their verdict, will not necessarily require a reversal of the judgment, but this court upon appeal may so modify the judgment as will prevent injury to the defendant.
    (Syllabus by the Court.)

      appeal from County Court, Pittsburg County; B. P. Hammond, Judae.

    C. E. Sillix was convicted of a violation of the prohibitory law, and appeals.
    Modified and affirmed.

      G. Rosemvinkel and /. R. Miller, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was in the court below convicted of the offense of maintaining a place where intoxicating liquors were received and kept for the purpose of selling the same. On the 3d day of September the court rendered judgment and sentenced the defendant to be confined in the county jail for a period of 30 days and to pay a fine of $300 and the costs.

It is only necessary to a determination of the case to pass upon one question. It appears from the record that the court did not instruct the jury as to the punishment prescribed by the statute for the offense, and did not instruct the jury that in the event they found a verdict of guilty they should assess and declare the punishment in their verdict. The Attorney General’s brief concedes: “That in this regard the defendant was prejudiced in that the court rendered judgment for a greater punishment than the minimum fixed by law. We, therefore, suggest that, under the power of this court to modify 'judgments, the judgment be modified so as to provide that the defendant be imprisoned in the county jail for a period of 3’0 days, and that he pay a fine of $50" — citing McSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72.

Under the law the punishment for the offense charged in the information is both fine and imprisonment. See sections 3610, 3634, Rev. Laws.

Finding no other error in the record, that part of the judgment imposing the fine will be modified to read, “and to pay a fine of $50 and the costs.”

The judgment as modified is hereby affirmed,

ARMSTRONG, P. J., and FURMAN, J., concur.