text:
    JEWELL CARRICK v. STATE.
    No. A-7605.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1053.)
    C. E. Corbett, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of manslaughter in the first degree, and her punishment fixed by the court at imprisonment in the state penitentiary for 40 years.

This is the second time this case has been before this court on appeal. In the first trial the jury fixed the defendant’s punishment at imprisonment in the state penitentiary for life, but this conviction was reversed for the reason that the commissioners who prepared the list of jurors excluded negroes from the list. Carrick v. State, 41 Okla. Cr. 336, 274 Pac. 896.

Defendant contends, first, that the evidence disclosed that she was insane at the time the homicide was committed, and that she could not be guilty of any crime on account of her mental condition.

The evidence is voluminous, and it would serve no-good purpose to set it out in this opinion. Whether the defendant was sane or insane at the time the homicide was committed was a question of fact for the jury, to be determined from the evidence under the instructions of the court.

In the case of Reed v. State, 23 Okla. Cr. 56, 212 Pac. 441, this court said:

“On a trial for murder, where evidence is introduced which in any degree tends to support the defense of insanity at the time of the commission of the homicide, the issue as to whether or not the defendant was then sane or insane is a question of fact for the jury to determine under proper instructions from the court.” Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524.

The jury, under the instructions of the court, having found the defendant guilty, must also- have found her sane at the time of the commission of the homicide. There being sufficient competent evidence in the record to support the verdict of the jury, the trial court did not err in overruling defendant’s demurrer to the evidence and her motion for a new trial on the ground that the evidence was insufficient to support the verdict of the jury.

The defendant next contends that the trial court made prejudicial remarks in the presence of the jury, which prevented the defendant from having a fair and impartial trial.

It appears from the record that, when one of the doctors testifying for the defendant was being examined in regard to the sanity of the defendant, the court asked the witness this question: “Most all of you doctors take the position that most everybody is insane, more or less, don’t you?” Defendant’s counsel objected to this question, and the same was immediately withdrawn and the jury instructed not to consider it. The question was, if not improper, at least ill-advised. But it is not every improper question or remark of the trial judge that will justify a reversal.

In Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696, this court said:

“It is not every improper remark of a trial court that will justify a reversal; if the remarks are such as might reasonably influence the jury against the defendant, a new trial should be granted; but if, after an examination of the record, it is clear that the verdict is right, and that, even if the remarks had not been made, the jury could not reasonably have returned a different verdict, the conviction will be affirmed.”

The defendant also complains that the trial judge prejudiced her case in the minds of the jury by examination of certain witnesses. The trial judge has a right to ask any witness on his own motion such questions as will tend to elicit the truth, but they should be asked in the spirit of fairness and in such a way as will not tend to prejudice the jury against the rights of either the state or the defendant. Simmons v. State, 31 Okla. Cr. 317, 238 Pac. 871; Johnson v. State, 33 Okla. Cr. 56, 242 Pac. 277.

There is nothing in the record to indicate that the rights of the defendant were in any wise prejudiced by the question asked by the trial judge in the case at bar.

The defendant next contends that the court erred in his instructions to the jury, particularly upon the question of the sanity of the defendant.

The court did err in giving instruction Na 17, which reads as follows:

“You are instructed that if by reason of disease affecting the mind, the mental faculties of the defendant were so impaired or perverted, that she was unable to' distinguish between right and wrong as to the particular act at the time of the commission of the crime, with which she is charged; or if she was able to. recognize that it was wrong, and yet was impelled by some impulse or delusion originating in a diseased mind to the commission of the act, and was unable by reason of the diseased condition of her mind, enfeebling her will, or otherwise to refrain from its commission, she should be acquitted by reason of insanity.”

The trial court no doubt was attempting to give the rule stated in an instruction in the case of Adair v. State, 6 Okla. Cr. 285, 118 Pac. 416, 44 L. R. A. (N. S.) 119, wherein it was said:

“Or knowing its wrongfulness the defendant is not criminally responsible, if by reason of insanity he did not have the will and mental power to refrain from committing such act.”

That part of the instructions above quoted had been repudiated by this court in Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048, and was expressly overruled in the cases of Tittle v. State, 44 Okla. Cr. 287, 280 Pac. 865. Arms v. State, 49 Okla. Cr. 34, 292 Pac. 76.

The instruction in the case at bar was more favorable to the defendant than was justified by the law or the facts, and, since the error was in her favor she will not be heard to complain.

The other instructions fairly state the law, and are as favorable to the defendant as the facts in the case warrant. The defendant made no objections to the instructions given, and saved no exceptions to the same.

In Cruzan v. State, 13 Okla. Cr. 71, 161 Pac. 1179, this court said:

“Errors assigned upon instructions given by the trial court will not be considered upon appeal, whee the record fails to show that any objections were made or exceptions taken to such instructions at the time they were given.”

The defendant next contends that the court erred in failing to give certain requested instructions.

This court has repeatedly held that it is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions. Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Dixon v. State, 46 Okla. Cr. 25, 288 Pac. 357.

In the case of Anderson v. State, 8 Okla. Cr. 91, 126 Pac. 840, Ann. Cas. 1914C, 314, this court said:

“The question of the sufficiency of the instructions and the action of the court in refusing to give special instructions requested must always be considered and determined by the facts of each case in which they arise.”

Since the defendant made no objection and saved no' exception to the instructions given by the court, and since the substance of the instructions requested had already been given by the court on its own motion, it was not error to refuse to give the requested instructions.

Defendant complains of other errors, but they are all without merit.

Twice defendant has submitted her case to a jury, and each time the jury has found her guilty. Some of the state’s witnesses changed their testimony in the second trial so that it was more favorable to the defendant than in the first trial, and yet the jury found her guilty. Justice demands that there shall be an end to litigation and that the guilty shall be punished.

The errors of law complained of being without substantial merit, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: DAVENPOBT, J.

license: Public Domain

text:
    ED COLEMAN v. STATE.
    No. A-7612.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1050.)

      J. K. Huggins and C. L. Hill, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of assault with intent to kill and his punishment fixed at confinement in the penitentiary for five years. Motion for a new trial was filed, considered, overruled, exceptions saved, and the case appealed to this court.

The testimony of the state tends to show that on the 27th day of August, 1928, the defendant was working for J. W. Patton, in his printing office in Konawa, Seminole county, Okla. J. W. Patton stated he had an altercation with the defendant on the 27th day of August, 1928—

“Ted Stanton and a man by the name of Bob Little were present; I had been to dinner and returned and was standing, back of Ted Stanton in the office; Ted asked Coleman if he was going to stay; Coleman said, ‘I got a dirty deal/ using vulgar language, ‘but I will stay’; I said, ‘This is a dirty remark after the way I have treated you/ and he said, ‘I will beat hell out of you/ and he flirted at me and I just reached out and pinched his nose; defendant did not do anything; Stanton took me back away from him and we talked awhile; defendant stayed there just a few minutes and left; he was gone about fifteen minutes and came back again; I had a conversation with bim; I felt like be bad mistreated me and I wanted to give bim a cbance to make it right; I asked bim why be called me that name, throwing the vulgar language at me regarding the deal, and be says be did not know, and did not make any apologies, and I says, 'You are not so big, I think you are just a son of a bitch’; be did not say anything, just walked out, and was gone about-30 minutes.
“I bad printed a lot of contracts and left them for bim to sign for so much printing in the paper, and be just threw them down on the desk and says they are worthless to me; and I says, 'Here is the original contract you signed, and I did the work; I done that for you’; be replied, 'You are tight,’ and I said, 'No, I am not tight, you get out of here and stay out of here,’ and I put my band on bis shoulder and pushed bim to the door; I did not use any force, be walked to the door easily, and when be did I walked away from bim about three of four steps, back toward the back end of the office to see what the help was going to do; I turned my head back toward the door and be bad bis pistol up toward me and as I turned be shot me; the bullet is still in my body; I came near dying, was in the hospital 11 days; when the defendant fired the shot be was standing in the front door of the office; when the defendant started out I walked with bim to the door and just stepped back; I bad two desks and I just stepped between them and turned my bead toward the door when he fired the shot. I had no gun; I bad a knife in my pocket but I did not open it.”

Jess Cowen, while testifying for the state in rebuttal, was asked this question and gave the following answer:

"Q. Did you see a knife on the floor where Mr. Patton was standing? A. Yes, sir.”

Several other witnesses testify as to the facts leading up to the difficulty, or what occurred immediately thereafter. None of them seem to' know what took place between the defendant and prosecuting witness about the time the shot was fired. The defendant admitted shooting the prosecuting witness; he stated he had an altercation with Patton in his office where he was working; the date was Sunday; the altercation was near the door—

“I imagine 10 or 15 feet-from the door of the office; it was crowded with just a little runway between and across a stand table setting this equipment on, and about five or six feet from the front door; I never had any trouble with the prosecuting witness until the morning of this trouble. Ted Stanton came in and wanted to go to Seminole, and I said I got a deal over there for Barney McKillop and wanted to go to see some parties at Seminole, and the prosecuting witness said. ‘What is the matter here, are you quitting here,’ and I said, No I’m through,’ and he says, ‘what does this mean,’ and I says ‘this is a cheap prospect here’; then Patton says, ‘don’t allude to me,’ and I says, ‘Pat, I was not alluding to you, what are you getting all ruffled up about’; he up and cursed me and grabbed me by the nose and broke my glasses; Patton then reached- in his pocket and took out his knife and says, ‘I will cut your throat.’ Ted Stanton put his arm around him and took him away, and Ted came back and told me he was drunk and not to take any offense at what he said; I then went over to change my linen, dressed my nose and tried to get another pair of glasses, and stayed about there and read and used my typewriter; I took the contract and everything and went over to Patton’s office and said, ‘Pat, if we can’t get along let’s quit and I will pay you’; Pat started to figure up what I owed him, and I said, ‘I had come to pay you, there is no use going along here, we can’t get along’; while he was going in he said something sarcastic to me about me being big ‘but I can knock your head off,’ and I told him there was no need of us having any fuss, there was nothing to fuss about; I told him I did not want to have any racket; he kept going on and he said he would beat my head off, and says, ‘I am going to cut your throat,’ and I says, ‘No you won’t Pat, We can’t have any trouble’; I could not get out of the door because my exit was blocked; he was in between the two desks and I could not get out of the room; he caught me by the throat and held me, and either had a knife or some kind of an instrument, and I tried to shoot him in the arm; I did not want to hurt him; I tried to disarm him; I shot purely and positively to defend myself as I considered my life in danger, and that he was going to cut me with his knife; I was in a corner where I could not get away from him and saw a flash of steel as he made a pass at me in the corner and I could not get out.”

Joe Anderson testified for the defendant that he was in the town of Konowa the day of the shooting—

“At the time of the trouble I was right at the door of the building in which they were; the first time I saw Mr. Patton, I suppose that is the party’s name, he had a knife going towards Mr. Coleman; he was cursing him, the language he used was too- vile to repeat; he called him a vile son of a bitch and said to Mr. Coleman, ‘I will cut your throat,’ and come at him with a knife in his hand; Mr. Coleman shot him; after the shot was fired I left the place, I did not go in; my home is at Duncan, Okla.; I had met the defendant one time before this at the Majestic Cafe at Seminole; I am in the oil drilling business; have not drilled any wells in the Seminole field; I am preparing, to> drill a well in Grady county; I was on my way to Seminole when I stopped at Konawa; there was 15 or 20 men I knew around Seminole that wanted an interest in the lease with me, and I told them if I needed money I would let them come in; there was a Mr. Murphy, Mr. Crabtree and a Mr. Banta and others had an interest in it; the name of the nearest town to the lease in Grady county is Marlow, Okla.; when I got to Konowa I stopped near a brick hotel.”

Quite a number of pages of the record is taken up by examining and cross-examining Mr. Anderson as to how he happened to- be in Konawa the day of the shooting, the substance of which is he met Mr. Coleman on the street a short while before the trouble, and had known him prior to this time and was going around to see if Mr. Coleman was going with Mm to Seminole. The foregoing is in substance the material testimony in the trial of this case.

The defendant has assigned several errors committed by the trial court. His argument is directed to the fact that the evidence in this case is not sufficient to sustain the verdict of the jury and that in the examination of the defendant the county attorney persisted in asking the defendant certain incompetent, irrelevant, and immaterial questions which were prejudicial to the rights of the defendant.

The defendant relies on self-defense as a ground to entitle him to an acquittal. The testimony tends to show that the defendant had been working for the prosecuting witness and a controversy arose between them and the defendant had been in the printing office on two occasions prior to the one when the prosecuting witness was shot.

The defendant insists that the prosecuting, witness had called him vile names and drew a knife and started toward him with it; at the time the prosecuting witness did this he was between two desks and his exit was .cut off and he could not get away from the defendant, and when he fired the shot it appeared to him and he believed it was necessary to shoot in order to keep the defendant from cutting him with a knife, which the prosecuting witness had in his hand; and defendant insists he did not shoot to kill the prosecuting witness, but shot to disarm him and save himself from getting cut with the knife the prosecuting witness had. One of the state witnesses testified, when called in rebuttal, that after the difficulty was over a knife was on the floor near where the prosecuting witness was standing at the time he was shot.

Joe Anderson, who seems to have been passing through the country, and who claims to> have seen the difficulty, says the prosecuting witness had a knife drawn on the defendant at the time he fired the shot; the prosecuting witness denies this and says he pushed the defendant toward the door and told him to get out, and he turned away from the defendant and took two or three steps, and the defendant had a pistol pointed at him. and fired. This testimony is conflicting as to whether or not the prosecuting witness had the knife at the time and was trying to cut the defendant when he fired the shot. The only testimony in the record that the prosecuting, witness did not have the knife in his hand is the testimony of the prosecuting witness himself; the defendant says he had the knife, Joe Anderson says he had the knife, and Jess Cowen, a state witness, says there was a knife on the floor near where the defendant was standing at the time he was shot. There is no testimony in the record, excepting the testimony of the defendant and prosecuting witness, as to what took place just before or at the time the shot was fired. Without setting out the questions propounded to the defendant while on the witness stand, which were objected to by the defendant, it is sufficient to say that many of the questions propounded to the defendant were improper and not material to the issues raised in this case; but after a careful consideration of the questions we do not believe they prejudiced the rights of the defendant, and we hold that the contention of the defendant that the questions propounded to him by the county attorney prejudiced his rights and deprived him of that fair and impartial trial is without sufficient merit to warrant a reversal.

There is a direct conflict in the evidence, and this court has universally held that where there is evidence from which the jury could reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, the court will not set aside the verdict on account of the insufficiency of the evidence. Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323.

While there is sufficient testimony to sustain the conviction in this case, there is such a conflict in the testimony, and the testimony of the defendant is so strong tending to show that the defendant acted in his necessary self-defense, we believe the penalty imposed by the jury is excessive, and that a lighter punishment would satisfy the law, and that the sentence in this case should be modified from a term of five years in the penitentiary to a term of three years, and as so modified the judgment is affirmed.

EDWABDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    ED (SHORTY) LOGAN v. STATE.
    No. A-7490.
    Opinion Filed Oct. 18, 1930.
    Rehearing Denied Nov. 8, 1930.
    (292 Pac. 374.)

      Wieck & Armstrong and D. E. Hodges, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted of the crime of selling intoxicating liquor, and his punishment fixed at a fine of $100 and imprisonment for six months in the county jail.

It appears from the record that, after instructing the jury, they were furnished with two forms of verdict, one finding the defendant not guilty and the other finding him guilty and fixing his punishment; that the jury retired, and, after considering- the case, their foreman, Elmer G. Draper, signed his name as foreman of the jury not only to the blank verdict finding the defendant not guilty, but also to the other blank verdict finding the defendant guilty, after having written therein $100 and six months in the. county jail as the punishment; that, when the jury was brought into court, both forms of verdict were handed to the clerk, and that the clerk first read the form of verdict finding the defendant not guilty, and then advised the judge that the jury had also signed the other verdict finding the defendant guilty and fixing his /punishment at a fine of $100 and six months’ imprisonment in the county jail.

Counsel for defendant demanded that the court receive the first verdict and discharge the jury. The state objected to the court receiving the verdicts, and requested the court to prepare a new verdict and order the jury to retire. Thereupon the court overruled the demand of the defendant, for the reason that two forms of verdict were signed by the foreman of the jury, one of not guilty and the other of guilty, and instructed the jury:

“Gentlemen of the jury, you will again repair to the jury room and deliberate upon your verdict, and when you arrive at a verdict you will only use one of these forms of verdict, not both of them. In other words, you cannot find a man guilty and not guilty.”

Thereupon the jury retired to the jury room and on the same day returned the following verdict into open court:

“State of Oklahoma, Plaintiff, v. Ed (Shorty) Logan, Defendant. Case No. 6609.
We, the jury empaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendant guilty and fix his punishment at fine of flOO.OO, six months in county jail.
“Elmer Draper, Foreman.”
—which verdict was received by the court over the objection of the defendant.
Defendant contends that, after the clerk had read the verdict finding the defendant not guilty, it was the duty of the court to discharge the jury and release the defendant, and that the court had no authority to require the jury to retire and further consider the case and return their verdict into court.
Section 2746, C. O. S. 1921, reads as follows:
“When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no' disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.”
In the case of Petitti v. State, 2 Okla. Cr. 134, 100 Pac. 1122, this court said:
“When the jury have returned into court a verdict finding the defendant not guilty, it is error, after the jury have been discharged and mingled with the public, for the court to- recall the members of the jury and require or permit them to impeach the verdict returned into court by testifying that they really intended to find the defendant guilty.”
In the body of the opinion, the court says:
“After a jury has been discharged and has mingled with the public, the persons who served on it are no' longer a jury, and have lost all connection with the control over their verdict.”
In Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404, this court, in the opinion written by Judge Edwards, said:
“Where the jury has returned its. verdict which has been received by the court, and the jury has been discharged, and has left the presence of the court and mingled with the public, the court is without power to recall the members of the jury and to require or permit them to amend the verdict.”
In the body of the opinion, the court said:
“If a defect or informality in a verdict had been discovered after announcement of the discharge of the jury, but before they had separated, the court might then and there, however, set aside his announcement of discharge and the jury have further acted. Sections 2742 and 2743, Comp. Stat. 1921; Abbott’s Criminal Trial Brief (2d Ed.) p. 730, § 18; Petitti v. State, supra.”
In the case at bar, the jury had not been discharged; they were in open court, and what was supposed to- be tbeir verdict bad been banded to tbe clerk to read. Tbe clerk bad read tbe verdict finding tbe defendant not guilty, and, when tbe court’s attention was called to tbe fact that tbe jury bad returned two verdicts, on proper motion of the state tbe court required tbe jury to retire for further consideration of the case, and in due time they returned into court a verdict in proper form. It will be noted that section 2746, supra, provides: “When tbe verdict is given, and is such as tbe court may receive. * * *”

Tbe court could not properly receive tbe former doings of tbe jury. In fact, such doings constituted no verdict at all, and tbe court, under authority of Harrell v. State, supra, and the other holdings of this court, bad authority before discharging tbe jury to require them to further consider tbe case and return a verdict into court which could be received by tbe court. It was not error, therefore, for tbe court to permit tbe jury to retire for further deliberation, and to receive tbeir verdict when they bad agreed upon tbe same.

Tbe defendant next contends that tbe evidence is not sufficient to support tbe verdict of tbe jury, but there is no merit to that contention.

For tbe reasons stated, tbe cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    MARSHALL UPCHURCH v. STATE.
    No. A-7099.
    Opinion Filed Sept. 13, 1930.
    Rehearing Denied Nov. 8, 1930.
    (292 Pac. 379.)

      L. M. Gensman and John F. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of willfully, unlawfully, and feloniously having sexual intercourse with Ella Lemons, said Ella Lemons being under the age of 16 years, and not the wife of the defendant; was sentenced by the court to serve a term, of seven years in the state penitentiary. From which sentence and judgment the defendant has appealed to this court.

The testimony of the state’s witness, in substance, is as follows:

Ella Lemons stated she lived near Fletcher, Okla.; she was 15 years of age on the 6th day of October, 1927—

“I went to Fletcher with my parents on the night of November 19, 1927; I met Fay Shilling, my cousin; we were walking up the street on the north side; Easton Skinner came up and began talking with Fay, and Fay wanted to know if I wanted to go driving; Fay said she would go if I would; I refused at first; Easton Skinner then named several boys and asked if I would go with them, and I refused; he then stated Marshall Upchurch was a nice boy and if he went and tried to do anything out of the way that he would make him treat me nice; I decided to go, and Skinner went for the defendant, and we met down in front of a restaurant and drove out south of Fletcher and came back for water for the car, and drove out of town again; when we had gone about halfway between Fletcher and Elgin, I asked where we were going, and the defendant said to Elgin to get a coke; we went to Elgin, got the coke, and started back; the defendant then turned the car and drove a quarter of a mile off the highway and stopped; it was dark, and the defendant turned the car lights out; the defendant then got on my lap, and I called to Skinner to help me and he just laughed; I then called Fay and she said Skinner was holding her; Skinner and Fay were in the back seat; I struggled with the defendant and finally he heard another car coming and let me loose; I opened the door to' get out, and defendant grabbed me and I slipped out of my coat; when I got out I went behind the car and called Fay; the defendant came back and told me to get back in the front seat; Skinner then pulled Fay out of the car and the defendant got in the back seat; the defendant got hold of me and pulled me over the back of the seat; I fought all I could, and he held me in the corner until the sweat was dripping off: me; he then had intercourse with me while we were in the back seat; I then got out of the car and went to where Fay and Skinner were; Skinner and Fay were north of the car, and the defendant drove up there and turned around and came back and waited until Fay and Skinner got back in the car; the defendant then drove about a half mile east of Elgin, and again stopped the car about a quarter of a mile off the highway; Skinner got out of the car and tried to- get Fay out, and I hit him on the face and told him to let Fay alone; he then got in the car, and he and Marshall, who were in the front seat, had a conversation about something; the defendant then drove to within about a mile of Fletcher and stopped the car again; Skinner got out and told Fay he had something to tell her and got hold of her hand and pulled her out of the car; the defendant wanted to get back to town, but I did not want to go until Fay came back; the defendant then said he would take me to town and come back for Fay; he drove me to town, and I told my mother and sister they had treated me rough, but I did not tell them the defendant had intercourse with me.”

M. M. Lemons, the father of the prosecuting witness, testified that his daughter told him who she had been out with, and that the defendant had mistreated her; the next morning they got Shilling and filed an assault and battery charge against Upchurch and Skinner; and then a charge of rape was filed against the defendant.

Mrs. Ada Lemons testified in substance the same as the father of the prosecuting witness, with reference to her daughter coming in and telling her she had been mistreated, and treated rough by the defendant.

Lillie Lemons stated:

“I got with Fay that evening and went to town, and the next time I saw her was about 10 o’clock; she was crying and I asked what was the matter, and she said she had been out with Marshall Upchurch and that he had mistreated her; on Monday night there was no one at the house except me and Ella, and while we were getting supper Ella told me all about it.”

Fay Shilling, called as a witness, in substance stated about the meeting of Easton Skinner and Pete Wilson on the street and the ride being suggested; that Skinner named a number of boys for Ella to go with, but she refused to go, and finally he named Marshall Upchurch, and said he would make Marshall treat Ella nice, and Ella finally consented to go; they started out of town, and came back and got some water for the car, and when they started again Ella asked the defendant where they were going, and he said they were going to Elgin to get a coke; they went to Elgin and got the coke, and when they started back they turned west when about a mile from town and stopped; Ella told them she wanted to go home; the road they stopped on was not a well-traveled road; it was dark, and when the car stopped the defendant turned off the lights; when the car stopped the defendant got on Ella’s lap, and Ella called to Skinner for help and he just laughed, and said Marshall would not hurt Ella—

“Ella called to me and I started to help her, and Skinner grabbed my hands and would not let me; the defendant bent Ella’s neck over the seat; about that time something was said about a car coming, and Marshall let Ella alone, and Ella got out of the car, and defendant grabbed her by the coat; she slipped out of the coat and went back of the car; I tried to get away from Skinner but could not; the defendant then went around the car and got Ella and threw her back in the car; Skinner then pulled me out of the car, and we went down the road, and the next thing I saw of Ella she was coming down to where Skinner and I were; the defendant drove down to where we were, and Ella and I got in the back seat and Skinner and the defendant in the front seat, and the defendant drove east towards Elgin and stopped the car about a quarter of a mile off the highway; Skinner got out and tried to pull me out, and Ella hit him and told him to leave me alone, and Skinner then got back in the car; we then drove toward Fletcher; and when we were about a mile east of Fletcher turned off the highway and the defendant stopped the car, and Skinner got out again and asked me to’ get out, said he had something he wanted to tell me; I refused to get out, and he jerked me out of the car and went back of the car; Marshall Upchurch then took Ella to town; in about fifteen minutes Marshall returned alone; Ella was the first one I saw when I got to' town.”

Dr. E. B. Dunlap testified that on Wednesday, the 23d of November, 1927, Mrs. Lemons and Mrs. Shilling brought their daughters to him for examination, for the purpose of discovering whether they had had sexual intercourse; that there was no swelling or abrasion; that the swelling or abrasion would disappear in three of four days; the hymen was ruptured.

Easton Skinner testified to meeting the girls on the street in Fletcher; he asked the prosecuting witness if she would go with Marshall Upchurch, and then details the route they traveled until they stopped the car—

“Fay and I were in the back seat; I did not see Marshall get on Ella’s lap, or pull her coat off, or pick her up and put her back in the car; Fay and I got out of the car and went behind it about 20 feet; we were out of the car about 15 minutes; I did not hear Ella cry or scream; Ella did not call me to make Marshall behave; I heard no noise ■in the car while we were out of the car; I never heard Ella say she wanted to go home; the fourth stop made by the defendant was near Fletcher; the defendant drove the prosecuting witness to town and came back for Fay and me.”

The defendant, testifying in his own behalf, stated the route traveled until the car stopped out on a country byroad.

Then stated:

“I did not get on Ella’s lap; she did not jump out of the car, nor did I grab her coat and pull it off; I did not put her back in the car; I did not pull her over the front seat to the back seat; Ella made no complaint that I knew of about my treatment to her; we were stopped about 20 minutes; I did not hear Ella call to Skinner for help, nor did she call to Fay for help; Easton and Fay got out of the car and went south; Ella got out of the car, and got back in the car at my request; I asked Ella if she did not think we had better go and come back for Fay; she did not want to go, but finally got in the car and we went to town; I could not tell what my object was in going west from Elgin; I had not been on that road before; when I stopped Ella asked me what time it was; I don’t remember what I was talking to her about; I made no indecent proposal to her; I might have tried to love and caress her; Ella made m> complaint of my conduct; she did not get out of the car at that place; I stopped the car again east of Elgin, then drove on and stopped again on another poorly traveled road; I don’t know why I went down that road; Skinner got out and asked Fay to get out; I don’t know whether he pulled her out or not, I was not looking; I left them because I thought it was time to take the other one in; Ella wanted to wait for the other girl, but I insisted on taking her home; I cannot tell you what my purpose was in making the three stops.”

M. C. Upchurch testified he was the father of Marshall Upchurch, the defendant; that the lights on the automobile went off when the car stopped.

This is, in substance, all the testimony offered by the parties.

The defendant has assigned several errors alleged to have been committed by the trial court. The first assignment relates to' the action of the court in overruling the demurrer of the defendant to the information. The defendant discusses the first and second assignments together and insists that the information was insufficient to charge a crime against the defendant.

After an examination of the information we cannot agree with the contention of the defendant. Section 1834, O. O. S. 1921, defines “rape” as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of 16 years.”

The first paragraph is the one that applies to the charge in this case. The charging part of the information is as follows:

“That at and within said county and state, on the 19th day of November, 1927, Marshall Upchurch, then and there being, did then and there wilfully, unlawfully and feloniously accomplish an act of sexual intercourse wth Ella Lemons, then and there being under the age of 16 years, and not then and there the wife of the said Marshall Upchurch.”

This information sufficiently charges the crime of statutory rape, and the substance of the charge is in the language of the statute. The demurrer to the information was properly overruled.

The third and fourth assignments have been argued together by the defendant. The defendant insists that the court erred in permitting testimony to be introduced in the case showing the action of all of the parties, including Easton Skinner and Fay Shilling, and what took place between all of the defendants. From an examination of the brief of the defendant, we find he failed to' set up or point out specifically what was introduced in the record that tended to prejudice the rights of the defendant. The testimony contained in the record has been carefully read, and it is detailed by the prosecuting witness as well as the defendant, where the parties got together, and the different roads traveled, and places where they stopped. This testimony was necessary in order to place the defendant at the different places where he is shown by the record to have been, and for the state to maintain its theory of the case it was necessary to show where the parties were at the time of the alleged cohabitation, and where the other parties were when the alleged offense took place. We do not think the court erred in admitting this testimony.

The defendant does not set out in his brief the contents of the evidence, the admission of which he claims was prejudicial to his rights. Llis failing to set out the evidence in full leaves him in no position to urge this contention.

The defendant also complains that he was not allowed to ask impeaching questions of the witness Fay Shilling. However, he does not set out in his brief what the questions were or what he expected to prove by the questions. Where the defendant complains of the action of the court in refusing to permit him to propound certain impeaching questions, it is his duty to show and set out in full what the rejected evidence would have been. Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271.

In Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673, in the second paragraph of the syllabus, the court said:

“Objections to testimony made in the lower court will only be considered by this court where the precise error complained of is clearly pointed out in the brief of counsel, with a statement of the testimony objected to, so1 as to enable this court to' understand the questions presented. The brief must also contain a statement of the page of the record on which the matter complained of can be found, and it must also1 clearly state the argument of counsel and contain the authorities relied upon to sustain the objections made in the lower court.”

The defendant in his fifth assignment complains of the action of the court in summoning and impaneling the jury. The record shows that the defendant filed a motion for continuance based principally upon the ground that the regular panel had been present and heard a companion case, known as the Skinner Case, and a previous trial of the defendant on the same charge he was called for trial in this case, and for that reason the jurors were disqualified. The county attorney agreed that the regular panel of jurors were disqualified, and the court dismissed the regular panel and ordered a special venire; this was known to the defendant and his counsel, who made no objection, nor was any motion made to quash the special panel; the jury was called, examined, and accepted by the defendant before he had exhausted all his peremptory challenges. In the absence of any special showing to the contrary, the presumption is that the proceeding was regular, and that the officers did their duty.

Section 3526, C. O. S. 1921, is as follows:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to the court at or before the time the jury is sworn to try the cause.”

Section 3518, C. O. S. 1921, says:

"At any time during the term of any court, after the petit jury has been drawn and summoned in the manner herein provided for, when, for the trial of any cause, civil or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct that an open venire be issued to the sheriff or other suitable person, for such number of jurors as may be deemed necessary, to be selected from the body of the county, or from such portion of the connty as the court may order: Provided, that no person shall serve as a talesman oftener than once a year.”

Moore v. State, 9 Okla. Cr. 9, at page 12, 130 Pac. 517, 519, thoroughly discusses the question, and says:

"The contention of counsel for appellant is that he had a right to a full panel of jurors duly drawn from the jury box, as selected by the jury commissioners, and that the trial court was without authority to order the sheriff to' summon additional jurors upon an open venire from the body of the county. To' sustain this contention would be to ofttimes subject the trial courts to great and unnecessary delay in drawing and summoning, talesmen. This objection was passed upon in an elaborate opinion by Judge Doyle in the case of Watson v. State, 9 Okla. Cr. 1, 130 Pac. 816, decided at the present term of this court; and we there held that the objection was not well taken. Even if the matter had never been decided by this court, it is settled by the provisions of the statute.”

The jury in this case was selected and impaneled in substantial compliance with the law, and no error appearing in the record to the prejudice of the defendant, and the defendant having failed to show, either by his motion for a new trial or specification of errors, or in his brief, that he was not accorded a fair and impartial trial, or that the verdict was reached by prejudice or passion, or that any of the jurors were guilty of misconduct, we hold that the fifth assignment was without merit.

In the sixth and seventh assignment of errors the defendant discusses the question of the insufficiency of the evidence. The evidence on behalf of the state is sufficient to warrant the jury in finding, a verdict of guilty if they believed the testimony of the state. The evidence is conflicting. On behalf of the state it shows a crime was committed. The prosecuting witness in this case is corroborated by the other witnesses in each and every particular save and except what she states took place at the time the offense alleged to have been committed by the defendant on the prosecuting witness in the rear seat of the car the parties had driven to' the country in. All admit the road traveled, and the stops made at the place where the prosecuting witness says the car was stopped. It is strikingly singular if no offense was committed, and the parties left the town of Fletcher for the sole purpose of going for a drive, that each time the defendant stopped his car he turned off from the public highway on a byroad where there was little travel. Some comment is made upon the fact that the defendant wanted to> take the prosecuting witness to town and she did not desire to go until her cousin Fay Shilling was ready to go. When this conversation is alleged to have taken place the cohabitation with the prosecuting witness, if it occurred at all, had already taken place, and perhaps the defendant was desirous of taking her back to town and leaving the other parties out in the country, which he says he did, and returned for Miss Shilling and Mr. Skinner. The jury is the sole judge of the credibility of the witnesses and weight it will give to their testimony, and where the testimony is conflicting, as in this case, this court will not disturb the verdict of the jury, if there is any competent evidence upon which the jury may reasonably conclude the defendant is guilty.

The defendant also complains of the instructions of | the court. The instructions are not set out in the brief ' of the defendant. We have carefully examined the record and considered in their entirety the instructions substantially declare the law as applied to the facts in this case.

The defendant’s motion for a new trial was properly overruled. The defendant in his eleventh assignment of error complains that the sentence and judgment of the court, based on the verdict of guilty returned by the jury, is excessive and should be modified. The testimony in this case is sufficient to sustain the verdict of the jury. There are no fundamental or prejudicial errors in the record of sufficient merit to warrant a reversal.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    TOMMY ADAMS v. STATE.
    No. A-7559.
    Opinion Filed Oct. 11, 1930.
    Rehearing Denied Nov. 8, 1930.
    (292 Pac. 385.)

      Frank Hickman and F. A. Peek, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree, and sentenced to serve 99 years in the state penitentiary.

The defendant in his brief says:

“This was an unusual case. There was not a single fact or circumstance connected with the homicide in dispute excepting the defendant’s mental responsibility.”

The killing being admitted, the cause must be affirmed, unless the errors of law complained of by the defendant are sufficient to require a reversal. Section 2719, O. O. S. 1921, provides:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

The defendant claims that he was insane at the time the homicide was committed, and offered evidence in support of such claim.

The first contention of defendant’s counsel is that the evidence in the case fairly established that the defendant at the time of the commission of the crime was so insane as not to know the difference between right and wrong, and to be incapable of committing the offense. There is a sharp conflict in the evidence. The evidence of the state, the physical facts, and the circumstances of the case are that the defendant was sane at the time of the commission of the homicide. The evidence of the defendant and his witnesses was that he was insane at that time. This was the single question of fact to be determined by the jury.

This court has repeatedly held that the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses; and that if there is a clear conflict in the evidence or it is such that different inferences can properly be drawn from it, its determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405; Burrows v. State, 42 Okla. Cr. 256, 277 Pac. 685.

Defendant contends that the court erred in admitting incompetent evidence on the part of the state and in rejecting competent evidence offered by the defendant, and that such error was of such a flagrant nature as to require a reversal of the case.

The rule is that a- conviction will not be reversed on account of improper admission or exclusion of evidence, unless it appears from an examination of the whole record that there has probably been a miscarriage of justice, or that there is a substantial violation of some constitutional or statutory rights of the accused. Section 2822, C. O. S. 1921; Brixey v. State, 42 Okla. Cr. 213, 275 Pac 655.

Defendant complains that he was not permitted to ask Dr. Adams, testifying for the state, as to what it was Avhich had cured the defendant between the time he had been adjudged insane in California and the time of the homicide. Medical science having no known specific for any disease, the question was impossible of answer. There was no evidence before the court that the defendant had been cured, that not being the issue in the case.

Defendant further contends that the court erred in refusing to permit Dr. Adams to answer the question of whether or not he was appearing to testify for the state for a fee. An examination of the record discloses the following :

“Q. But you agreed, didn’t you, doctor, with the county attorney for a fee, money consideration, to come down here and testify to this boy’s sanity? A. I did not.”

It thus appears that this contention is without merit.

An examination of the whole record discloses that the trial judge was attempting to speed up the trial and was trying to keep the examination and cross-examination of witnesses reasonably within that which was material in the case. There is nothing in the record to indicate any prejudice upon the part of the judge, and the admission and rejection of evidence complained of by the defendant was not such as to require a reversal of the case.

Defendant further contends that the court erred in refusing to permit him to introduce a photograph of himself taken when he was a boy, years ago, for comparison in showing a change in the defendant’s physical appear-anee. Just how this would be of any probative value in establishing the fact of insanity years afterward and at the time of the trial, we are unable to see. Defendant contends that it was admissible for the purpose of identification. Defendant’s witnesses Mr. Peek, Mr. Roth, and Mr. Chandler had sworn that the defendant was the same person who had lived with them years before, and had fully established the fact of identity, so that the photograph for that purpose could only have been cumulative evidence. In many cases it is proper to permit the introduction of photographs, and the introduction might have been permitted in the case at bar, but the rejection of this, together with the other evidence complained of, does not constitute reversible error.

Defendant introduced in evidence a certified copy of the proceedings of the superior court of Inco county, state of California, showing that the defendant had been adjudged to be insane and had been committed to the Nor-walk State Hospital, at Norwalk, Cal., and introduced evidence to show that the defendant was the same Tommy Adams who had been committed to this asylum as insane.

Defendant contends that the court erred in giving instruction No. 12, which reads as follows:

“You are instructed that the court has permitted an authenticated copy of a record from a superior court in the state of California of an adjudication in said court adjudging one Tommy Adams insane and his confinement in a lunatic asylum. In considering this evidence it will be your first duty to ascertain and determine whether the Tommy Adams mentioned in said authenticated copy is the Tommy Adams here on trial, and if you should decide that he is the same Tommy Adams here on trial, said evidence will not be considered by you as conclusive up'On the question of his sanity at this time and. in this case, but said record may be considered by you, along with the otter evidence in tbe case on tbe question of bis sanity, and given by you sucb weight as you deem it entitled to receive.”

Defendant contends that tbe court erred first in that part of tbe instruction which reads:

“In considering this evidence it will be your first duty to ascertain and determine whether the Tommy Adams mentioned in said authenticated copy is the Tommy Adams here on trial.”

Certainly it was incumbent upon the defendant to prove that he was the same Tommy Adams who had been adjudged to be insane by the superior court of California. Defendant argues that this part of the instruction was calculated to raise a doubt in the minds of the jury as to the identity of the defendant.

The court evidently had in mind two things in this instruction; the first being that the jury must first find that the Tommy Adams on trial and the Tommy Adams adjudged insane were identical, and this was a fact necessary to1 be found by the jury; and next the jury were told that if they found the first fact to be true, the record of such finding of insanity was not conclusive proof of the insanity of defendant at the time the crime was committed, but could only be considered by the jury together with the other evidence in the case in determining the mental condition of the defendant at the time the homicide was committed.

Defendant also contends that this latter part of the instruction is incorrect, arguing that the defendant having once been adjudged insane, the presumption of law was that such insanity continued, and the burden was not upon the defendant but upon the state to establish the sanity of defendant.

In the case of People v. Prosser, 56 Cal. App. 454, 205 Pac. 869, that court said:

“Commitment to an insane asylum is not conclusive evidence of insanity, but is only evidence to be weighed by the jury, in a criminal prosecution.”

In the case of Petterley v. Randall et al., 92 Cal. App. 411, 268 Pac. 434, that court said:

“Proceeding before judge with advisory assistance of two physicians, under provisions of Pol. Code. § 2168 et seq., is a summary proceeding for purpose of determining mental condition of person charged with being insane, and does not constitute a conclusive judicial determination of sanity or insanity.”

Certainly if the judgment finding the defendant insane by the superior court of California was not conclusive as to the mental condition of the defendant in that state, it cannot be said that it would be conclusive of his condition in this state.

In the case of People v. Prosser, 56 Cal. App. 454, 205 Pac. 869, 871, the Court of Appeals of that state said :

“The court committed no error in refusing to give the following instruction: ‘You are instructed that if you find that defendant was committed to a state hospital in California as insane by the superior court of any county of California that the law presumes that defendant continues insane until such time as he was lawfully discharged from the state hospital or was legally adjudicated sane.’ This instruction proceeds upon the mistaken assumption that such adjudication is conclusive evidence that the party was insane; whereas, it was only evidence to be weighed by the jury, and the effect of which was to be determined by them, but they were not in any wise concluded by the opinion of the medical examiners or by the judgment which declared appellant insane.”

The rule laid down in this case was followed in Fetterley v. Randall, supra.

The general rule is stated in 32 C. J. p. 757, § 560:

“Prior Insanity. It has been held to be a sound general rule that insanity at any particular time, if shown to be habitual or permanent in its nature, may be presumed to have existed at a given prior time. But if the insanity shown to exist is merely intermittent and not permanent, it is held that no presumption of its existence at a given prior time arises.”

Section 561, supra:

“General insanity admitted or once proved to exist, is presumed to continue, and if a recovery or lucid interval is alleged to have occurred, the burden to prove such allegation is on the person making it. * * * The rule above stated, that insanity once proved is presumed to continue, obtains only in cases of chronic or permanent nature. If insanity, admitted or proved, is only occasional or intermittent, the presumption of its continuance does not arise, and he who relies on such insanity proved at another time, must prove its existence also1 at the time alleged.”

The evidence of the defendant at most does not establish permanent insanity, but only tends to establish insanity occasional or intermittent in its nature.

Dr. Smith, testifying for defendant, said that he was suffering from a phychosis, which means a disease of the mind. On cross-examination this witness, after having answered that he had observed the defendant that day, would only say that he was “mentally abnormal today.”

Under the facts as developed by the evidence in the case and the authorities cited herein, the court did not err in giving instruction No. 12.

The defendant next contends that the court erred in instructions No. 6 and No. 7 in not assuming the defendant to be insane because of the adjudication in California. These instructions are the usual ones given where insanity is the defense and correctly state the law of the case.

Defendant next contends that the trial court erred in overruling his motion in arrest of judgment, after refusing to hear evidence to create a doubt of his sanity in the mind of the court at the time the judgment was to be pronounced.

Section 2867, C. O. S. 1921, provides :

“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arises as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”

Section 2868, supra, provides:

“The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

-Under section 2867, supra,' the insanity of the defendant may be suggested at the time the case is called for trial. This court has held that it is reversible error, where a doubt of the sanity of the defendant at the time of the trial arises, to refuse to impanel a jury and determine the question of the mental capacity of the defendant to make his defense in the case. Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139. See also Ex parte Maas, 10 Okla. 302, 61 Pac. 1057.

In the case at bar no suggestion of defendant’s insanity was made before the jury was impaneled, defendant seeking only to establish Ms insanity at the time the homicide was committed.

In the trial of the case defendant may defend upon the ground that he was insane at the time the crime was committed and offer evidence in support of same. Where defendant introduces sufficient evidence to raise a reasonable doubt of his sanity, the burden then rests upon the state to establish defendant’s sanity the same as any other fact in the case. By proper instructions the court submitted to the jury the question of defendant’s sanity at the time of the commission of the offense, and the jury upon the evidence and under said instruction? found the defendant guilty.

Under section 2867, supra, the defendant may raise the question of his sanity after verdict and before judgment is pronounced upon such verdict. In the case at bar the defendant’s counsel suggested his insanity at the time he was called before the .court for judgment and sen; tence, and offered to introduce evidence in support of the same. The trial court declined to hear any evidence upon such question and the defendant now predicates error in this court upon such ruling. There is a great difference between the hearing to be had upon the defendant’s mental capacity to be put upon trial before the jury is impaneled, and the hearing provided for after verdict. The jury having found the defendant sane at the time the crime was committed and having returned a verdict of guilty against him, this last hearing demanded by the defendant and refused by the trial court was only for the purpose of determining whether the defendant should be committed to the asylum for the criminally insane until such time as he shall become sane, and then be committed to the penitentiary, or whether he shall be committed to the penitentiary in the first instance. The trial court should have heard the evidence offered by the defendant, bnt failure to do so is not such an error as will require a reversal of the case.

Section 2822, C. O. S. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Section 2943, C. O. S. 1921, provides:

“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

Section 2820, O. O. S. 1921, provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court.”

Under this section this court has broad power to control the proceedings after verdict in trial courts. See Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883; Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073; Johnson v. State, 12 Okla. Cr. 260, 154 Pac. 1004; Caudill v. State, 9 Okla. 66, 130 Pac. 812;. Barrett v State, 39 Okla. Cr. 50, 263 Pac. 166; White v. State, 42 Okla. Cr. 50, 275 Pac. 1067.

Where the proceedings after verdict are not in accordance with law, this court has power to remand the case with directions to the trial court to correct its record and render judgment in conformity with the verdict or to comply with any other statutory requirement prior to the rendition of the final judgment.

Under section 2867, C. O. S. 1921, it was the-duty of the trial court when it was made to appear that the defendant was insane to hear evidence in support of such allegation, and if a doubt arose in the mind of the court it was its duty to impanel a jury to inquire into the defendant’s sanity before pronouncing judgment.

It would serve no good purpose to reverse the case. The only question before the court and jury in the trial was the mental capacity of the defendant to commit the homicide. The jury heard the evidence of the defendant and the state on the question of defendant’s mental capacity to commit the homicide, and, under proper instructions from the court, found the defendant guilty, and thus found him sane at the time the homicide was committed.

It is ordered by this court that said cause be remanded to the district court of Tulsa county, and that said court vacate and set aside the judgment rendered therein and proceed to hear evidence of the sanity of the defendant, and if such evidence creates a doubt in the mind of the court of his sanity, that a jury be impaneled as provided for in section 2867, and that the court proceed thereafter in accordance with this opinion.

For the reasons stated, the conviction is affirmed, and the cause remanded.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    WILLIE FOUTCH v. STATE.
    No. A-7168.
    Opinion Filed Oct. 11, 1930.
    Rehearing Denied Nov. 8, 1930.
    (292 Pac. 392.)
    Owen F. Renegar, for plaintiff in error.
    J. Deny King*, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The evidence of the state was that there was 834 pounds of picked seed cotton of the aggregate value of $25 stolen from A. A. Eskew; that Eskew missed the cotton the next morning after it was stolen and, calling others to- help him, tracked the thieves from his cotton pile in the field to' the home of the defendant; that the defendant told the searchers that all the cotton on his place was in a wagon in the yard; that Eskew then procured a search warrant, and on searching a dugout on defendant’s premises found the 334 pounds of cotton. Defendant was charged jointly with Calvin Guffey. The state called Guffey as a witness, who testified that the defendant and one Sampley, a brother-in-law of defendant, stole the cotton in controversy and hid it in the dugout.

The state also offered evidence that the market value of the cotton at the time it was alleged to have been stolen was from 7% to 8 cents per pound for first pick cotton in seed and 21% to 21% cents per pound in the bale; that that was the delivered value in Cordell and at Colony and Cloud Chief.

The defendant contends first that the evidence is insufficient to establish the fact of larceny for the reason that the conviction is based upon the uncorroborated testimony of one Guffey, who was jointly charged with the defendant with the larceny of the cotton and who took the stand and testified for the state. If the witness Guf-fey was an accomplice and his evidence was uncorroborated, the contention of the defendant would be good. The other evidence offered by the state, together with the facts and circumstances, corroborate the testimony of Guffey, and it was immaterial whether he was an accomplice or not.

The defendant next contends that the evidence of the state is insufficient to sustain a conviction for grand larceny, contending, that the evidence at most shows the value to be uncertain and probably less than $20. The prosecuting witness, testifying for the state, said the cotton stolen was 334 pounds. The evidence of the witness Bud Gordon, who had been purchasing cotton in that country for some 15 years, was that the value of the cotton was 7% to 8 cents per pound. Under this uncontradicted evidence, the lowest value of the cotton stolen would be $24.55 and the highest $26.72. Since any value in excess of $20 constitutes the crime of grand larceny, the evidence of the state was sufficient to fix a value making the crime grand larceny.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    WESS ARNOTE v. STATE.
    N. A-7366.
    Opinion Filed June 14, 1930.
    Rehearing' Denied Nov. 15, 1930.
    (292 Pac. 1118.)
    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $300 and to serve 90 days in the county jail.

The case was tried in January, 1929, and the appeal was lodged in this court in May, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record. There is sufficient evidence from which the jury might reasonably and logically find the defendant guilty. No material error is apparent.

The case is affirmed.


text:
    TOM TIPTON et al. v. STATE.
    No. A-7436.
    Opinion Filed Sept. 20, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 880.)
    S. E. Harper and Lewis Hunter, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were tried and convicted of the possession of one still, with intent to- use the same to violate the prohibition laws of the state, and the defendant Tom Tipton was sentenced to serve 180 days in the county jail and pay a fine of $250; the defendant Beubin Pointer was sentenced to serve 120 days in the county jail and pay a fine of $150; the defendant Everett Beeler was sentenced to serve 120 days in the county jail and pay a fine of $120. Motion for new trial was filed, considered, overruled, and the defendants have appealed by case-made with petition in error attached to this court.

The testimony of the state is, in substance, as follows : J ess Ansel stated he was a deputy sheriff, on September 23, 1928, and knew the defendants; accompanied by W. E. Nix he went to the Emmit Gray farm in Comanche county; they were going down a creek on the farm and saw the defendants Tipton and Beeler standing close to the still; they had a soldering iron — “We watched them about five minutes and went down to where the still was; when we got down to the still Mr. Pointer stood some distance south of the still; the defendant Tipton said the still belonged to him; the defendant Pointer came back to the still and helped us tear it down; Pointer said, he had a car somewhere, but it was not around there, I never saw it. It was about a 350-gallon still. We found a truck about 150 yards from the still; Tipton said it belonged to himself and Pat Brewers.”

On cross-examination witness stated the defendants Beeler and Pointer did not try to run or get away; defendant Beeler did not make any claim to the still.

W. E. Nix testified for the state, in substance, that when they first came up to' the still on the Emmitt Gray place they saw two men, later he learned the defendants were Tipton and Beeler; shortly after they went up to the still Mr. Ansel yelled at Mr. Pointer, and the defendant Pointer said he had nothing to do with it, that he had come to get a wrench to fix his car; Tipton said it was his still.

The witness further stated when he first saw Pointer he was about 75 yards from the still, and that Tipton said the still belonged to him.

At the close of the state’s testimony the defendants Reubin Pointer and Everett Beeler demurred to the evidence for the reason that the state failed to sustain the allegations in the information in this case, and for the further reason that the evidence shows that the defendants had nothing to do with the still, according to the officers who testily, stating that Tipton said they had nothing to do with the still. The demurrer was overruled, and defendant duly excepted.

The defendants have assigned four errors alleged to have been committed in the trial of this case. The fourth assignment being: “That the court erred in overruling the defendants’ motion for a new trial.” This assignment covers all the other alleged errors.

An examination of the record clearly shows that the defendants Tom Tipton and Everett Beeler were at the stiil, working or preparing to work — they had a soldering iron — and no explanation is made why the defendant Beeler was at the still. It is true the defendant Tipton says the still belonged to him, but Beeler was there with the defendant Tipton. No testimony was offered by the defendant Beeler to show how he happened to1 be present with the defendant Tipton at the still when the officers came upon them. The only testimony which tends to exonerate the defendant Beeler is the statement of Tipton that the still belonged to him. The testimony of the witness as to the defendant Beubin Pointer shows that Pointer stated he had been there to get a wrench to fix his car; considered in connection with the statement of Tip-ton that the still belonged to him, and the facts that Pointer was seen by the officers about 75 yards from the still with the wrench in his hand, the testimony is insufficient to sustain a conviction against the defendant Beubin Pointer.

The court did not err in overruling, the motion of the defendants Tom Tipton and Everett Beeler for a new trial. The motion for a new trial as to Beubin Pointer should have been sustained.

The evidence is sufficient to sustain the conviction of Tom Tipton and Everett Beeler, and insufficient to sustain the conviction of Reubin Pointer. The judgment as to the defendants Tom Tipton and Everett Beeler is affirmed, and reversed as to Reubin Pointer.

Edward's, P. J., and CHAPPELL, J., concur.


text:
    C. F. KNOPP v. STATE.
    No. A-7359.
    Opinion Filed Oct. 11, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 883.)
    Joe Adwon and S. A. Horton, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The evidence of the state was that the officers had a search warrant for a Ford coupe, the property of Alice Jones, who was the defendant’s daughter; that they arrested the defendant and his daughter, Alice Jones, and a woman named Ellen Wofford; that all of the parties were in this Ford coupe; that in the front of the car, near defendant’s feet, they found a half gallon of wine, and in the turtle back of the car they found nine gallons of whisky. The Jones and Wofford women pleaded guilty to the charge of transporting liquor. These women, testifying for the defendant, attempted to take all of tbe blame for tbe possession of tbe liquor. Tbe defendant took tbe stand and denied that be knew tbe liquor was in tbe car or bad anything to do with it.

Tbe state then called in rebuttal tbe officers who made tbe arrest, and they testified that the Wofford woman told them that tbe defendant and bis daughter took tbe car at Chickasha and were gone together a couple of hours, and when they returned tbe wine was in tbe front of tbe car, but that she knew nothing about tbe whisky in tbe back of tbe car until about tbe time tbe officers arrested them, when tbe Jones woman told her that there was whisky in the back of tbe car.

Tbe question presented is, Was this evidence sufficient to justify tbe jury in returning a verdict of guilty against tbe defendant? Defendant admits be made tbe trip to Chickasha Avith bis daughter and was riding in tbe car at tbe time of tbe arrest. All tbe facts and circumstances in tbe case point unerringly to tbe fact that defendant knew that this liquor was in the car and was participating in its transportation. Tbe jury saw the witnesses and beard them testify; they were in proper position to determine who1 was telling the truth, and, where there is a conflict in the evidence, this court will not disturb tlie verdict of the jury where there is competent evidence to support tbe same.

For tbe reasons stated, tbe cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    ALFRED ROBINSON v. STATE.
    No. A-7818.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 396.)
    Hughes & Dickson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted on a charge of having possession of intoxicating liquor, to “wit, 18 half gallon jars of beer, and 56 half-pint bottles of beer, with the unlawful intent then and there on the part of him, the said Alfred Robinson, to violate the prohibitory liquor laws of the state of Oklahoma, and was sentenced to pay a fine of $50 and be imprisoned for 30 days; from which judgment the defendant has appealed to this court.

When the case was called for trial, the defendant objected to the introduction of the testimony offered by the ¡state, on the ground that it was secured by an unlawful ¡search and seizure, and that neither the affidavit nor the search warrant was sufficient to authorize the sheriff to search the residence of the defendant. The description in the affidavit being:

“The north half of lot 17, and lots 18, 19, 20, 21, 22, 23 and 24, in block 44, in the original town of Guymon, in Texas county, Okla.”

The objection of the defendant to the introduction of the testimony was overruled, and the defendant duly excepted.

Section 7013, C.O. S. 1921, reads as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Nowhere in the affidavit or search warrant is it stated that any part of the defendant’s residence is used as a store, shop, hotel, boarding house, or place for storage, or that such residence is a place of public resort. The search warrant does not authorize the officer to search the residence of the defendant, or the buildings and cur-tilage used in connection therewith by the defendant. The testimony of the state fails to' show that the residence of the defendant was located on the lands described in the affidavit and the search warrant.

The evidence in this case shows that the officers went to the residence of the defendant and under an invalid search warrant searched the private dwelling house and discovered the home-brew. The only evidence offered in this case as to the home-brew was obtained by this unlawful search and seizure. The affidavit upon which the search warrant was issued was wholly insufficient, in that it did not comply with the provisions of section 7013, supra.

There being no competent evidence in this case upon which a verdict of guilty could have been returned, the case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    W. McCANDLESS v. STATE.
    No. A-7545.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 412.)
    John L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and Ms punishment fixed by the jury at imprisonment in the state penitentiary for 10 years.

The defendant complains of numerous errors, but for the purpose of this opinion it will only be necessary to consider bis fourth ground of error, which is:

“That the court committed errors in admitting testimony and evidence over the objections of the defendant during the trial of the case, to which actions upon the part of the court the defendant excepted at the time and his exceptions were allowed by the. court.”

In the trial the witness Whitlock, one of the men who had been robbed, was asked:

“Did you describe these defendants to any one before you saw them?
“Mr. Ward: We object to. that as incompetent, irrelevant and immaterial, calling for a conclusion on the part of the witness, self-serving, .hearsay.
“The Court: Overruled.-
“Mr. Ward: Exception.
“A. Why, I talked to Mr. Larkin, a deputy sheriff.
“Mr. Ward: May I ask, for the purpose of further making the objection, whether or not the defendants were present, or this defendant was present?
“Mr. Coffey: Of course they weren’t present.
“Mr. Ward: All right, we move to strike the testimony on the ground that it is incompetent, irrelevant and immaterial, and renew our objection that it is hearsay, and couldn’t bind the defendant.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. I told Mr. Larkin that before going to identify any man I would describe the Mnd of men that held us up, and when I got through describing them he just remarked there was no question about the men.
“Mr. Ward: Now we move to strike that, Your Hon- or, as incompetent, irrelevant and immaterial, and an attempt on the part of this witness to bolster up his own testimony by illicit, hearsay, incompetent testimony.
“The Court: Overruled.
“Mr. Ward: Exception.”

When Glenn Larkin was testifying for the state, he was asked by the county attorney:

“Had you received a description from any person of these men before you arrested them?
“Mr. Ward: Object to that as incompetent, irrelevant and immaterial, calling for a conclusion of the witness and hearsay.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. Yes, sir, I had.
“Q. From whom, Mr. Larkin?
“Mr. Ward: Same objection, Your Honor.
“A. From the police department and the newspapers.
“Mr. Ward: We move to strike the answer fas incompetent, irrelevant and immaterial.
“The Court: Overruled.
“Mr. Ward: Exception.
“Q. Tell the court and jury how you happened to go to the Boulder Hotel to arrest these men?
“Mr. Ward: Object to that as incompetent, irrelevant and immaterial.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. The landlady of the Boulder Hotel called me up on the telephone and give me information that these boys, from the description that she read about the robbery that was pulled in the Hotel Tulsa the night before, were in that room.
“Mr. Ward: We object to that as incompetent, irrelevant and immaterial, and move to strike it for the same reasons, Your Honor.
“The Court: Overruled.
“Mr. Coffey: We think it is competent.
“Mr. Ward: Exception.
“Q. Did she furnish you any more information, Mr. Larkin, about these two men? A. She said that there was a couple of hats brought in that night and given to the porter.
“Mr. Ward: Now we move to strike that last answer, Your Honor, as incompetent, irrelevant and immaterial, and hearsay.
“The Court: Overruled.
“Mr. Ward: Exception.
“Q. I will ask you to state to the jury if Mr. Whit-lock gave you a description of the men that robbed him, before he saw these two> defendants?
“Mr. Ward: We object to that as incompetent, irrelevant and immaterial, inherently calls for a conclusion on the part of the witness, and hearsay testimony.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. Yes, sir, he gave us a description of the parties that robbed him.
“Q. How did that description compare with the description of the two defendants that you then had under arrest?
“Mr. Ward: We object to that as incompetent, irrelevant and immaterial, inherently calls for hearsay evidence and an opinion of this witness.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. Yes, I met this doctor and. another doctor, and they described these parties, being about the age of Mr. McCandless and Mr. Williams, and they described those two: hats.
“Mr. Ward: Now we move to strike that, Your Hon- or, as incompetent, irrelevant and immaterial, and an expression of opinion by this witness, and hearsay.
“The Court: Overruled.
“Mr. Ward: Exception.
“Q. After they had described the hats and the defendants to you? A. Yes, sir, they saw them.
“Q. State to the court and jury whether they identified them at that time as being the men who robbed them?
“Mr. Ward: We object to that as being incompetent, irrelevant and immaterial.
“The Court: Overruled.
“Mr. Ward: Exception.
“A. Yes, they said they were the men.”

All of this evidence was hearsay and constituted extra-judicial identifications, which this court has held to be inadmissible and not original testimony.

In the case of Johnson v. State, 44 Okla. Cr. 113, 279 Pac. 933, this court said:

“In the trial of an accused for robbery, where the issue is whether the defendant is the person who- robbed the prosecuting witness, testimony of what prosecuting witness said in identifying or describing the robber at some other time or place is not admissible as original testimony. In like manner, the testimony of the officer that from such description he arrested the defendant is hearsay and inadmissible.”

In the body of the opinion this court said:

“ ‘The issue was whether the defendant robbed the prosecuting witness. Applicable to that issue was the question whether at the trial the prosecuting witness could identify the defendant as the man who committed the crime. Whether he identified him- at any other time or place, either before or after the trial, would be immaterial, and in a sense of self-serving declaration. It ought not to have been admitted in the first place, although no objection was made to it.’
“One Charley Kelly, a witness for the state, was permitted to testify that, soon after the robbery, he was given a description of defendant by Lipschnitz, and upon this description alone he identified defendant. It can hardly be contended but that this is rank hearsay. In the case of Com. v. Pagan et al., 108 Mass. 471, 472, under a somewhat similar state of facts, it was said:
“ ‘At the trial, it was not denied that the robbery had been committed. The only matter really controverted was the question whether the defendants were sufficiently identified as the robbers. The person who had been robbed was permitted to testify that he gave to the police officers a description of the persons who assaulted him- and the officers were also- permitted to- testify, in substance, that by means of that description they recognized the defendants as the assailants. According to the decision in Com. v. Moulton, 4 Gray (Mass.) 39, it would have been improper to have asked the first witness what he said to the officers. Nothing that he could have so said, in the absence of the defendants, would have been admissible as evidence against them.’
“In Warren v. State, 103 Ark. 165, 146 S. W. 477, 479, Ann. Cas. 1914B, 698, the court said:
“ ‘It is next insisted that the court erred in refusing to exclude the testimony of the two officers as to the identification of defendant. This character of proof is referred to in the books as “extrajudicial identification,” and is generally held to be inadmissible. Reddick v. State, 35 Tex. Cr. R. 466, 34 S. W. 274, 60 Am. St. Rep. 56; Murphy v. State, 41 Tex. Cr. R. 120, 51 S. W. 940; State v. Egbert, 125 Iowa 443, 101 N. W. 191; State v. Houghton, 43 Or. 125, 71 Pac. 982; People v. Johnson, 91 Cal. 265, 27 Pac. 663; People v. McNamara, 94 Cal. 509, 29 Pac. 953.’ ”

See, also, Robbins v. State, 39 Okla. Cr. 289, 264 Pac. 841.

The case at bar differs from the case of Williams v. State, 49 Okla. Cr. 240, 293 Pac. 564, recently affirmed by this court, in this: That while Williams and McCandless were jointly charged with this robbery, in the trial of Williams, the court refused to permit the state to introduce this class of testimony, and the same Avas brought out by the defendant on cross-examination of the state’s witnesses, and under these circumstances this court held that, since the defendant had brought out the immaterial and hearsay testimony on cross-examination, he could not be heard to complain thereat.

In the case at bar, however, this evidence was introduced by the state, over the most strenuous objection of defendant, and must have materially assisted the state in convicting the defendant.

Since the other errors complained of are not likely to arise in another trial of the case, we do not deem it necessary to pass upon them at this time.

For the reasons stated, , the cause is reversed and remanded, with directions to proceed with the case in accordance with this opinion.

EDWARDS, P. J., and DAVENPORT, J., concur.