text:
    J. H. WILSON v. STATE.
    No. A-4112.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 1057.)
    (Syllabus.)
    1. Appeal and Error — Case-Made—Papers Attached After Settlement Stating Subsequent Matters not Considered! on Appeal. Any papers attached to a case-made after it has been settled and signed by the judge who tried said cause, and which attempt to state any matters which occurred subsequently to the settling and signing of the case-made, do not constitute any part of the case-made, and will not be considered by the appellate court for any purpose whatever.
    2. Same — Time for Appeal not Extended by Order Extending Time to Serve Case-Made. An order extending the time to serve a case-made does not automatically extend the time within which to file the appeal.
    3. Same — Order Extending Time — When Notice to Adverse Party Necessary. While the trial court may from time to time make proper orders for making and serving .the case or for filing the proceeding in error in the appellate court, it may not do so after the time fixed in the previous order or the time allowed by statute,' unless notice is given to the adverse party.

      4. Same — Appeal in Misdemeanor Cases not Lodged Within Statutory Time Dismissed. In misdemeanor cases, the appeal must be perfected within 60 days after the judgment is rendered, unless the trial court or judge, for good cause shown, extends the time within the limits prescribed by section 2808, Comp. St. 1921. Where no order is made extending the time within which an appeal in misdemeanor cases may be taken, and the appeal is not lodged in this court within 60 days after the rendition of judgment, this court has no jurisdiction to entertain the appeal, and the same will be dismissed.
    Appeal from County Court, Creek County; H. S. Williams, Judge.
    J. H. Wilson was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Appeal dismissed.
    Wallace & Wallace, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an attempted appeal from a judgment of conviction rendered in the county court of Creek county on the 2d day of August, 1921, for the offense of unlawful possession of intoxicating liquor, with punishment assessed at a fine of $500 and imprisonment in the county jail for six months. Petition in error and case-made were filed in this court on the 31st day of October, 1921.

The Attorney General has filed a motion to dismiss this appeal, which said motion is as follows:

“Now comes George F. Short, duly qualified and acting Attorney General of the state of Oklahoma, and moves the court to dismiss the appeal filed herein for the reason that the record herein discloses that the judgment and sentence of the court was rendered on the 2d day of August, 1921, and this appeal filed in the office of the clerk of this court on October 31,1921, more than sixty days after the date of the judgment and sentence, and there appears to have been no order of court extending the time in which said appeal might be filed; said appeal being an appeal from the judgment of the county court of Creek county, wherein the plaintiff in error was convicted of having unlawful possession of intoxicating liquor; all of which is
“Respectfully submitted,
“George F. Short, Attorney General.
“N. W. Gore, Assistant Attorney General.
“Attorneys for Defendant in Error.”

At the time of rendering judgment, the trial court allowed the defendant 30 days in which to make and serve a case-made and 60 days in which to file his petition in error and case-made in the Criminal Court of Appeals. The case-made was served upon the county attorney of Creek County on the 31st day of August, 1921, within the time allowed by the trial court. The case-made was signed and settled on the 30th day of September, 1921. Attached to the case-made and after the final settlement thereof and below the signature of the trial judge settling the same is what purports to be an order dated October 1, 1921, which attempts to extend the time for serving the case-made 30 days from that date, but makes no attempt to extend the time for filing the petition in error and case-made in this court. Such purported order is nullity. Fortner v. State, 5 Okla. Cr. 609, 115 Pac. 378; Byers v. State, 6 Okla. Cr. 623, 117 Pac. 653.

Further it will be noted from the following opinions that a valid order extending the time to serve a case-made does, not automatically extend the time within which to file the appeal; so that, if such purported order were valid, it would not have the effect of extending the time within which to file the appeal. Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518; Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714.

Again, while the trial court may from time to time make proper orders extending the time for making and serving the case or the filing of the proceedings in error, it may not do so after the expiration of the time fixed in the previous order or the time allowed by statute unless notice is given to the adverse party. In this case no notice was served upon the adverse party of any application to the trial court to extend the time for filing the appeal in this court beyond the 60 days first allowed, and there is no showing in said order that good cause existed for such extension. Section 789, Comp. Stats. 1921; State v. Coyle, 11 Okla. Cr. 637, 150 Pac. 80.

Furthermore, it appears that the case-made was served in this ease on the 31st day of August, 1921, and that the same was signed and settled on the 30th day of September, 1921. The time for filing the appeal under the original order expired on and with October 1, 1921. It is apparent that counsel for plaintiff in error had ample time to file the petition in error and case-made in this court within the 60 days, had ordinary diligence been used.

This court has repeatedly held:

“In misdemeanor cases the appeal must be perfected within 60 days after the judgment is rendered, unless the trial court or judge, for good cause shown, extends the time within the limits prescribed by (section 2808, Comp. Stats. 1921). Where no order is made extending the time within which an appeal in misdemeanor cases may be taken and the appeal is not lodged in this court within 60 days after the rendition of judgment, this court has no jurisdiction to entertain the appeal, and the same will be dismissed.” Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869; Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231; Hampton v. State, 13 Okla. Cr. 85, 162 Pac. 237; Rhodes v. State, 13 Okla. Cr. 86, 162 Pac. 230.

For the reason that the appeal was not lodged in this court within 60 days after the rendition of the judgment, and that no proper order extending the time within which ¡to take the appeal was made by the trial court, the appeal is dismissed, and the cause remanded to the trial court.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOE PARKS v. STATE.
    No. A-4035.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 895.)
    (Syllabus.)
    Appeal and Error — Dismissal Where Appellant Accepts Parole. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, • and, when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.
    Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
    Joe Parks was convicted of rape, and he appeals.
    Appeal dismissed.
    King & Crawford, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsch, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Pontotoc county, wherein, on the 28th day of January, 1921, plaintiff in error was convicted of the crime of rape and sentenced to serve a term of 8 years’ imprisonment in the state penitentiary. From such judgment of conviction, he has appealed' to this court.

The Attorney General has filed a motion to dismiss this appeal upon the ground that, on the 5th day of January, 1923, the Honorable J. B. A. Robertson, Governor of the state of Oklahoma, issued a parole to the said Joe Parks for this offense, and that the same has been accepted by him. A copy of the said parole and acceptance of same are attached to the motion to dismiss the appeal. A motion to dismiss this appeal was served upon counsel for plaintiff in error in the month of April, 1923, and no response has been made thereto.

The motion to dismiss the appeal is sustained upon authority of the following cases: Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445; Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912.


author: MATSON, P. J.

text:
    BERT CAREY v. STATE.
    No. A-4175.
    Opinion Filed Aug. 25, 1923.
    (217 Pac. 895.)
    (Syllabus.)
    Appeal and Error — Where Sentence for Misdemeanor Satisfied, Appeal Dismissed. Where the defendant was convicted of a misdemean- or, and on a failure to give a supersedeas bond was committed to the custody of the sheriff to begin the service of the sentence imposed, and it is apparent from-the record that the judgment and sentence has been satisfied in accordance with its terms, the appeal will be dismissed, as any legal case involved is moot. .
    Appeal from County Court, Canadian County; W. A. Maurer, Judge.
    Bert Carey was convicted of a misdemeanor, and he appeals.
    Appeal dismissed.
    The Attorney General, for the State.
   MATSON, P. J.

This is an appeal from the county court of Canadian county, wherein, on the 3d day of September, 1921, plaintiff in error was convicted of the offense of grossly injuring the person and property of another, and sentenced to pay a fine of $500, and to be imprisoned in the county jail for a period of 90 days.

It appears from the record before us that the judgment and sentence was rendered on the 3d day of September, 1921, at which time the trial court notified the defendant of his right to appeal, and fixed the amount of his supersedeas bond in the sum of $1,500, and committed the defendant to the custody of the sheriff until such bond was given. It is further disclosed by the record that defendant thereafter served notices of appeal on the county attorney and court clerk of Canadian county, and was given time to prepare and serve a case-made, and within the time allowed prepared and served his case-made, and that same was duly signed and settled by the trial judge, but it nowhere appears from the record that this judgment was ever superseded by the giving of a super-sedeas bond in the amount fixed by the trial judge. As the defendant was committed to the custody of the sheriff to begin the serving of the sentence imposed on the 3d day of September, 1921, and as it appears that no supersedeas bond was given, it is apparent that said judgment and sentence has long since been satisfied, and that the questions involved in this appeal are moot. Tropp v. State, 17 Okla. Cr. 702, 186 Pac. 737.

The presumption obtains from the record before us that the plaintiff in error has long since served the sentence imposed and has satisfied the judgment, and the appeal is therefore dismissed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


author: MATSON; P. J.

text:
    GORDON SIMPSON v. STATE.
    No. A-4217.
    Opinion Filed Aug. 30, 1923.
    (217 Pac. 1054.)
    (Syllabus.)
    1. Indictment and Information — Information in Felony Case — Verification Unnecessary. There is no necessity that an information in a felony case be verified by the oath or affirmation of any person.
    2. Same — Determination of Examining Magistrate as Authority for County Attorney to File Information... It is the fact that there was a preliminary examination or waiver thereof and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe defendant guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence-on such examination; or for the offense charged in the preliminary information when such examination has been waived.
    3. Same — Information for Felony not Bad for Failure to State Presentment by County Attorney on Official Oath. Where an information in a felony case is signed by the county attorney and is styled as required by the Constitution and statutes of the state, and it appears from th© face thereof that it is an official presentment by information of the county attorney filed in the trial court, the failure to state in the body of the information that the same is presented by the county attorney “upon his official oath” does not render the information fatally defective.
    4. Larceny — Evidence Sustaining Conviction of Larceny of Domestic Fowls. Evidence examined, and held sufficient to support the verdict and judgment, and further it is held that the law of the case was fairly covered in the general charge without material prejudice to the substantial rights of the plaintiff in error.
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Gordon Simpson was convicted of larceny of domestic fowls, and lie appeals.
    Affirmed.
    Miller & Miller, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON; P. J.

On the 28th day of March,. 1921, the county attorney of Delaware county filed an information in the district court of said county, jointly charging the plaintiff in error, Gordon Simpson, and Sampson Martin with the crime of larceny of domestic fowls, committed in the nighttime, the property of one Maranda Lynch. On a joint trial Martin was acquitted, and the plaintiff in error, Simpson, convicted and sentenced as above stated. Judgment was rendered on the 7th day of October, 1921, and petition in error with case-made attached were filed in this court on the 25th day of February, 1922.

This prosecution is based on section 2119, Compiled Statutes 1921, which reads as follows:

“Every person who shall take, steal and carry away any domestic fowl or fowls in the nighttime, from the messuage of another, or from the premises upon which the dwelling house of another is situated, and any person purchasing or receiving such domestic fowl or fowls, knowing them to have been stolen, shall be guilty of grand larceny, regardless of the value thereof, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding two hundred dollars, or by' confinement in the county jail not exceeding two months, or by both such fine and imprisonment.”

The facts are substantially as follows: Along in the latter part of November, after Thangsgiving, in 1920, Ma-randa Lynch, who lived near the town of Leach in Delaware county, Ofcla., had 5 hen chickens stolen from her premises. Mrs. Lynch stayed at her home during the daytime and slept at her father’s premises at night. Her father lived approximately three-quarters of a mile from her home place. She kept her chickens on the premises at home in a barn which was in the same inelosure with the dwelling house. The •defendants Simpson and Martin also lived in that neighborhood.

Along about the 1st of December, 1920, these defendants, together with another Martin boy, sold some chickens to a Mrs. Brashars who lived about 8 miles west of the Lynch place. Mrs. Brashars bought 9 chickens from them. At the time she purchased the chickens they were carried in tow sacks and placed on top of a farm wagon’ in which these parties were hauling some hogs. Holes had been cut into the tbw sacks and the chickens’ heads protruded from them. In one of the tow sacks were the 5 chickens which, were af-terwards identified and • recovered by Mrs. Lynch as the chickens taken from her place just a few days before they were sold to Mrs. Brashars. Mrs. Brashars testified that the legs of these five chickens had been tied with strings and wire, and that the legs of the one tied with wire were sore, indicating that it had been tied for several days. Mrs. Bra-shars also testified that the actions and the conduct of Simpson on the occasion when she purchased the chickens from him were peculiar, in that he seemed to be a little nervous and very anxious for the immediate payment of the money for the chickens.

The plaintiff in error, Simpson, admits that he sold Mrs. Brashars the 9 chickens, but contends that they were the property of his father, and that they were obtained at his father’s home, were caught the morning that they were sold with his father’s consent, and that he did not steal them from Mrs. Lynch.

The information was demurred to on the following grounds: First, that the court was without jurisdiction to try the cause; second, insufficient description of the property alleged to have been stolen; third, insufficient description of the premises; fourth, that the information does not state facts sufficient to charge the offense of stealing chickens or any other public offense of which the court has jurisdiction. The demurrer to the information was overruled and exception reserved to the action of the court.

Counsel have abandoned on appeal the second, third and fourth grounds of the demurrer and rely on the first ground stated. If we correctly understand counsel’s objections to the information, they are twofold: First, the information is not verified by any one; second, not being verified, there is no statement in the body of the information that it is made by the county attorney on his official oath.

There is no necessity that an information in a felony case be verified by the oath or affirmation of any person. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

The information is signed by W. W. Miller, county attorney, and purports to have been presented to the court on the 28th day of March, 1921. There is no contention that the plaintiff in error was not accorded a preliminary examination. It is the fact that there was a preliminary examination or waiver thereof and, a judicial determination thereon by the examining magistrate, that a felony has been committed, and that there is probable cause to believe defendant guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination, or for the offense charged in the preliminary information, when such examination has been waived. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Norwood v. State, 14 Okla. Cr. 637, 169 Pac. 656; Little v. State, 21 Okla. Cr. 1, 204 Pac. 305.

The objection that the trial court was without jurisdiction to try the offense is not well taken under the decisions above quoted. Also it appears that this was an information duly presented to the trial court by the county attorney of Delaware county, that it was styled as required by the Constitution and statutes of this state, and that it appears from the face thereof that it is an official presentment by information of the county attorney. The contention urged that the information is fatally defective because it does not include the words that it is presented “upon his official oath” is too technical to merit consideration, where it is not contended that the proceedings preliminary to the prosecution of a felony by information were not complied with.

Secondly, it is contended that the evidence is insufficient to sustain the conviction. This contention is based, largely on the proposition that there is no credible evidence to prove that the chickens were taken in the nighttime. There is evidence in the record sufficient to support a finding to that effect. We consider the evidence as a whole sufficient to sustain the conviction.

We have examined the instructions given and those requested, and, while complaint is made of the general charge, and of the failure to give a certain requested instruction, the conclusion is reached that the refusal to give the requested instruction was correct, and that the law of the case was fairly covered in the general charge, without material prejudice to the substantial rights of this plaintiff in error.

The judgment is affirmed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


text:
    JOE DODSON v. STATE.
    No. A-4228.
    Opinion Filed Aug. 30, 1923.
    (217 Pac. 899.)
    (Syllabus.)
    Appeal and Erlror — Appeal Dismissed Where not Filed Within Statutory time. The appeal in felony cases must be filed in this court within six months after the judgment is rendered, and if the appellant fails to file a transcript of the record or ease-made with petition in error in this court within such time, this court does not acquire jurisdiction of such appeal, and the appeal will be dismissed.
    Appeal from District Court, Cleveland County; W. L. Eagleton, Judge.
    Joe Dodson was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Hutchins & Burke and J. B. Dudley, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

On the 5th day of July, 1920, the county attorney of Cleveland county filed in the district court of said county an information charging the plaintiff in error, Joe Dodson, with the murder of one R. L. Snyder alleged to have been committed in said county on the 30th day of June, 1920. The trial was had to a jury in August, 1921, resulting in a verdict of guilty of manslaughter in the first degree, with punishment fixed at imprisonment in the state penitentiary for a term of four years. Motion for a new trial was filed, heard, and overruled, and judgment rendered on the 3d day of September, 1921, in accordance with the verdict. Petition in error and case-made were filed in this court on the 4th day of March, 1922, more than six months after rendition of the judgment.

Section 2808, Compiled Statutes 1921, in part provides:

“In felony cases the appeal .must be taken within six months after the judgment is rendered.”

The appeal must be filed in this court within the time prescribed by the foregoing section, and if the appellant fails to file a transcript of the record or case-made with petition in error in this court within the time prescribed by said section this court does not acquire jurisdiction of such appeal and the appeal will be dismissed. Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753; Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714; Gordon v. State, 12 Okla. Cr. 103, 152 Pac. 142; Clark v. State, 12 Okla. Cr. 105, 152 Pac. 143.

It appears from the record in this case that the petition in error and case-made were not filed with the clerk of this court within six months after the judgment was rendered. They were filed one day too late. The statute is mandatory that the appeal must be lodged in this court within six months after rendition of the judgment in felony cases. If the appeal could be filed one day late, it could be filed any number of days late. So that it is apparent, if this court would assume. jurisdiction of an appeal lodged one day late, it should also assume jurisdiction of an appeal filed one year too late. The Legislature has fixed six months as a reasonable time within which to file an appeal in felony cases, and this court is bound by the time so fixed.

For the reason that this court has never acquired jurisdiction of this- appeal, the same is dismissed, and the ease remanded to the trial court, with directions to enforce the judgment and sentence.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


author: BESSEY, J.

text:
    WASHINGTON HARRISON v. STATE.
    No. A-4215.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 893.)
    (Syllabus.)
    Appeal and Error — Mere Fact that Transportation of Liquor was First Offense not Sufficient to Modify Sentence. Where the proof shows conclusively that the accused was apprehended in the illegal transportation of 23 gallons of whisky, the mere fact that this was his first offense will not alone be sufficient cause for this court to modify the sentence.
    Appeal from County Court, Muskogee County; Enloe Y. Vernor, Judge.
    Washington Harrison was convicted of illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    DeGraffenreid & DeGraffenreid, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Washington Harrison, plaintiff in error, was, by a verdict of a jury, found guilty of the illegal transportation of intoxicating liquor, and his punishment fixed at a fine of $500 and, imprisonment in the county jail for a period of 180 days. From the judgment on the verdict he appeals.

From the briefs of plaintiff in error and of the state, and an examination of the record, it appears that no material error was committed at the trial, that the instructions of the court were fair to the defendant, and that in all other re-pects he had a fair and impartial trial.

Since it appears that this was the plaintiff in error’s first offense of this character, his counsel ask that the judgment be modified and the penalty reduced. It is within the power of this court to make such modification, and, under some circumstances, where among other things it appears that the offense charged was the first and only criminal accusation against the defendant, the court might be justified in modifying the punishment. But it was not the purpose of the statute to empower this court to exercise functions in the nature of pardons and paroles. The record shows conclusively that the defendant was apprehended in the illegal transportation of 23 gallons of whisky from one point to another in Muskogee county. This would indicate that he was engaged in this illegal business as a wholesaler rather than as a retailer, and though it may have been the defendant’s first offense, this court does not feel justified, under the circumstances, in modifying the judgment of the trial court.

The judgment of the court below is affirmed.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.


author: BESSEY, j.

text:
    JOHN WESLEY HONEYCUTT v. STATE.
    No. A-4074.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 892.)
    (Syllabus.)
    Homicide. — Proceedings of Trial for Murdetr Held Without Error. The record examined, and held, that the information sufficiently charged the crime of murder; that plaintiff in error was regularly placed on trial, represented by counsel; that the evdience amply supports the verdict; that the instructions of the court were sufficient and fair to plaintiff in error; and that generally throughout the proceedings plaintiff in error was accorded a fair trial.
    Appeal from District Court, Payne County; C. C. Smith, Judge.
    John Wesley Honeycutt was convicted of murder, and he appeals.
    Affirmed.

      Lowry & Moore, for plaintiff in error:
   BESSEY, j.

Plaintiff in error, John Wesley Honeycutt, was by verdict of a jury rendered May 7, 1921, in the district court of Payne county found guilty of the murder of Al-burdy Brown, and his punishment was fixed at confinement in the state penitentiary for the term of his natural life. From the judgment on this verdict, he appeals.

This case was submitted on the record and on oral argument December 3, 1922, and from time to time since, upon request of attorneys for plaintiff in error, extensions of time in which to file briefs have been granted. The time allowed in the last order extending time has long since passed, but no brief has been filed.

We have carefully examined the record in this case and find that the information sufficiently charged the crime of murder; that plaintiff in error was regularly placed on trial, represented by counsel; that the evidence introduced amply supports the verdict; that the instructions given by the court clearly defined the issues of law, as raised by the evidence; and that generally throughout all the proceedings the defendant was accorded a fair trial.

The judgment of the trial court is affirmed.

MATSON, P. J;, concurs.

DOYLE, J., absent and not participating.


text:
    HALEY BROOKS v. STATE.
    No. A-4104.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 901.)
    (Syllabus.)
    New Trial — Overruling Motion Held not Abuse of Discretion. There was no abuse of judicial discretion shown in the overruling of a motion for a new trial' under the showing made, attempting to show that the accused was coerced to enter a plea of guilty.
    Appeal from District Court, Comanche County; A. S. Wells,. Judge.
    Haley Brooks was convicted of grand larceny, and he appeals.
    Affirmed.
    C. R. Reeves, for plaintiff in error.
    ¡ Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment rendered upon a plea of guilty to a charge of grand larceny. The punishment was assessed at confinement in the state reformatory at Granite for a term of three years.

Plaintiff in error, Haley Brooks, after the rendition of this judgment, claimed that he was unduly influenced and coerced by the county attorney, sheriff, and deputy sheriffs to enter a plea of guilty. This claim was urged in a motion for a new trial and in arrest of judgment. The statute (section 2756, Comp. Stat. 1921) provides that a motion in arrest of judgment should be interposed before the rendition and entry of judgment. The motion in this case, however, was considered by the trial court as a motion for a new trial, and upon the question of whether or not the plaintiff in error was coerced and improperly influenced to enter his plea of guilty it was heard at length, upon affidavits and oral testimony.

Ordinarily the granting of a motion for a new trial lies in the discretion of the trial court. The testimony offered for the purpose of showing that there was undue influence in this ease was not sufficient to overcome the presumption or impeach the declaration of the trial judge in the journal entry of judgment that the plaintiff in error—

“was asked by the court whether or not he has any just cause to show why judgment and sentence for said crime should not be pronounced against him, and, the defendant failing to show any just cause, the court accepts said defendant’s plea of guilty as charged in said information, and finds the defendant guilty, as charged therein.”

It further appears in the record:

“The court advised the defendant of the status of his case under his plea of guilty as entered, and the defendant being satisfied with said plea,” etc.

The testimony of witnesses confirms the record, to the effect that the plaintiff in error was not coerced to enter a plea of guilty. Under these circumstances, the overruling of the motion for a new trial was proper. We hold that the information was sufficient to support the verdict of guilty of grand larceny.

The judgment of the trial court is therefore affirmed.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.


text:
    ALLAN DONOHUE v. STATE.
    No. A-4143.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 1117.)
    Appeal from County Court, Murray County; W. G. Long, Judge.
    Allan Donohue was convicted of the illegal sale of whis-
    ky, and he appeals.
    Affirmed.
    W. N. Lewis, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

On October 4, 1921, plaintiff in error, Allan Donohue, was convicted of unlawfully selling whisky. His punishment was by verdict of a jury fixed at a fine of $50 and confinement in the county jail for a term of 30 days. An examination of the briefs and record discloses that the information was sufficient; that there was no variance between the allegations and the proof; that there was sufficient evidence to support the verdict; and that plaintiff in error was in other respects accorded a fair trial, as contemplated by law. The judgment of the trial court is affirmed.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.


text:
    ALLAN DONOHUE v. STATE.
    No. A-4144.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 1117.)
    Appeal from County Court, Murray County; W. G. Long, Judge.
    Allan Donohue was convicted of the illegal sale of whis-ky, and he appeals.
    Affirmed.
    W. N. Lewis, for plaintiff in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Allan Donohue, plaintiff in error, was by a verdict of a jury on October 4, 1921, found guilty of the illegal sale of whisky on the day following the date of the pífense charged in case No. A-4143, 24 Okla. Cr. 287, 217 Pac. 1117. The punishment in this case was also assessed at a fine of $50 and confinement in the county jail for a period of 30 days. The record and the proof in this case are very similar to the record and proof in A-4143, 24 Okla. Cr. 28, 217 Pac. 1117. The judgment of the trial court is affirmed.

MATSON, P. J., concurs.

DOYLE, J., absent and not participating.


text:
    DAVE YONKEY v. STATE.
    No. A-4236.
    Opinion Filed Aug. 31, 1923.
    (217 Pac. 1119.)
    Appeal from County Court, Garfield County; E. L. Swi-gert, Judge.
    Dave Yonkey was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    H. J. Sturgis, for plaintiff in error.
    George P. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the county court of Garfield county. Conviction of unlawful possession of intoxicating liquor with punishment assessed at a fine of $500, and imprisonment in the county jail for a period of 180 days. Judgment rendered November 9, 1921. Appeal filed March 6, 1922. Submitted May 22, 1923. Sole contention is that evidence is insufficient to support the verdict and judgment. Evidence examined and held sufficient. Judgment affirmed.


text:
    W. E. CARROLL v. STATE.
    No. A-4150.
    Opinion Filed Sept. 4, 1923.
    (217 Pac. 900.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    W. E. Carroll was convicted of transporting liquor, and he appeals.
    . Appeal dismissed, and ease remanded, with instructions.
    Anglin &■ Stevenson, for plaintiff in error.
    George F. Short, Atty. Gen., and N.-W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Hughes county wherein, on the 27th day of October, 1921, plaintiff in error was convicted of the crime of conveying intoxicating liquor and sentenced as above indicated. Petition in error and case-made were filed in this court on December 27, 1921, 61 days after rendition of the judgment.

No order of the trial court appears of record extending the time within which to take an appeal in misdemeanor ;eases beyond the 60 days allowed by statute unless such extension is made. The appeal is therefore dismissed, and the ease remanded to the trial -court, with instructions to carry into effect the judgment. Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869; Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.


text:
    A. H. ALLEN v. STATE.
    No. A-4151.
    Opinion Filed Sept. 4, 1923.
    (217 Pac. 901.)
    Appeal from County Court, Hughes County, Owen H. Rives, Judge.
    A. H. Allen was convicted of the crime of conveying intoxicating liquor, and he appeals.
    Appeal dismissed, and case remanded, with instructions.
    Anglin & Stevenson, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Hughes county, wherein on the 27th day of October, 1921, plaintiff in error was convicted of the crime of conveying intoxicating liquor and sentenced as above indicated. Petition in error and case-made were filed in this court on December 27, 1921, 61 days after rendition of the judgment.

No order of .the trial court appears of record extending the time within which to take an appeal in misdemeanor cases beyond the 60 days allowed by statute unless such extension is made. The appeal is therefore dismissed, and the case remanded to the trial court, with instructions to carry into effect the judgment. Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869; Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.


author: PEE CUEIAM.

text:
    DAVE GALOOB v. STATE.
    No. A-4726.
    Opinion Filed Sept. 4, 1923.
    (217 Pac. 902.)
    Appeal from District Court, Kay County; J. W. Bird, Judge.
    Dave Galoob was convicted of grand larceny, and he appeals.
    Appeal dismissed.
    Ed Hirsh, for plaintiff in error..
   PEE CUEIAM.

Plaintiff in error, Dave Galoob, was tried and convicted on an information charging that on the 13th day of June, 1922, in the county of Kay, he did commit the crime of grand larceny by taking by fraud and stealth of goods and merchandise of the value of $1,050, the personal property of C. P. Calkins & Co., and in accordance with the verdict of the jury he was on the 13th day of December, 1922, sentenced to serve a term of five years’ imprisonment in the state penitentiary. From the judgment an appeal was taken, by filing- in this court on June 12, 1923, petition in error with case-made.

Now, on this 4th day of September, 1923, by his counsel of record, he has filed a motion to dismiss his appeal on the grbund and for the reason that a full and unconditional pardon has been granted by the Governor. In accordance with the uniform holding of this court, where a pardon has been granted pending the determination of an appeal, the appeal will be dismissed. The motion to dismiss the appeal is sustained, and the appeal herein is dismissed.


author: DOYLE, J.

text:
    STANLEY HUFFMAN v. STATE.
    No. A-4025.
    Opinion Filed Sept. 7, 1923.
    (217 Pac. 1070.)
    (Syllabus.)
    1. Criminal Law — Voluntary Intoxication no Justification for Crime. .Voluntary intoxication of a defendant is never to be considered by the jury for the purpose of justifying or excusing the commission of a crime which has in fact been committed.
    2. Same — Taking of Property While so Intoxicated as to be Unconscious of Acts not Taking with Felonious Intent. Larceny involves a felonious intent, and, if one takes property while so much' under the influence of intoxicating liquor as not to know what he is doing, he will not be deemed to have taken the prop- ■ erty with felonious intent.
    3. Same — Proof of Intoxicated Condition. When one takes the property of another, to make it grand larceny a felonious intent must be shown, and while this may be inferred from the character of the taking, the defendant may show that he was unconscious of what he was doing at the time, and too drunk to form or have a felonious intent.
    4. Same — Question of Mental .Condition of Accused for Jury. On the trial of an information for grand larceny, the mental condition of the defendant, from the effect of intoxicants, is for the jury upon the question of felonious intent.
    Appeal from District Court, Garvin Comity; W. L. Eag-leton, Judge.
    Stanley Huffman was convicted of larceny of an automobile, and he appeals.
    Reversed.
    H. M. Carr, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of Garvin county, rendered on the verdict of a jury finding the defendant, Stanley Huffman, guilty of stealing an automobile, and assessing his punishment at imprisonment in the penitentiary for a term of 5 years.

The errors assigned are that the verdict is contrary to law and to the evidence, and that the court erred in refusing to give an instruction asked by the defendant. •

It appears that the defendant, Stanley Huffman, 24 years of age, lived all his life in a neighborhood about 15 miles south of the town of Lindsay; on the date alleged, August 13, 1920, he went to Lindsay to transact some business concerning his parents’ estate. Between the hours of 5 and 6 o’clock in the afternoon he took a Ford car, the property of John Burford, that was parked in front of a store on Main •street, and drove it some 6 or 7 miles southwest, where, for want of gasoline, he could proceed no further.

The defense was that the defendant did not know what he was doing when he took the car, and that he was incapable of forming an intent to steal by reason of his condition at that time from intoxication.

The state’s evidence tends to show that the defendant was drunk, but knew what he was doing when he took the car.

Henry Hargis, a witness for the state, testified:

“I have known the defendant for 15 years and saw him when he got in the car and drove it away from in front of Lynch’s hardware store; he started and stopped and started and almost ran into a pile of brick, and wobbled backward and forward and then went on. Some one asked who that fellow was that got in the car. I said it was Stanley Huffman. Some other person remarked, ‘He has a terrible jag on,’ or something to that effect. A large number of people were on Main street at the time. Mr. Lynch, I believe it was, said, ‘He stole Ethel’s car,’ I laughed and said, ‘Do you reckon?’ and he said, ‘That is Ethel’s car, and he is gone with it at any rate.’ I phoned over to Sin Clair’s house and they said a man with a plaster on his face was stuck there, with Andy Allen. I drove out there. The other cars were there when we got there. They said, ‘Will you take him on back to town and put him in jail?’ and we brought him back to Lindsay. He was still intoxicated when we started back with him; he was not so drunk but what he knew me.”

The testimony of the defendant and. that of other witnesses called in his behalf tended to show that he was so far intoxicated at the time he took the car, and continuously during his possession thereof, that he could not have entertained the specific intent to appropriate the same, which is essential to the crime of larceny.

A. C. Bickel testified that the defendant came into the Farmer’s Exchange Bank by the back door about 4 o’clock that afternoon, to transact some business, and at that time the defendant was drunk.

Dick James testified that he saw the defendant about an hour before the ear was taken, staggering around among some horses in a lot, and he was acting like a man drunk.

R. R. Rawlings testified that the defendant was in his store before noon, and he was drinking at that time; that he came back between 2 and 3 o’clock and was very drunk, and for that reason he tried to get him to leave the store.

William Brazil testified that he met the defendant about 5 o’clock, and while talking to him the defendant came very near falling through a glass front, and witness caught him and helped him up.

As a witness in his own behalf, the defendant testified:

“I arrived at Lindsay about 10 o’clock, went to Dr. Mitchell’s office, and he lanced my jaw and put a plaster on it, before noon I met Prof. Gordon. We went out behind a grocery store, and we drank three bottles of stuff marked ‘H. 6 K. ’; then we went to dinner. In the afternoon I took several drinks of alcohol with some other fellows. I suppose I drank about a pint of alcohol, they offered to sell me a gallon of alcohol for $35, and they fixed up a check and I signed it. We went over to the bank to have the check fixed up, but I was so drunk I do not remember much about it. After leaving the bank I don’t remember just what happened; I had a Ford car, and I remember cranking a car in front of the hardware store, but I don’t remember driving it away; I remember that these people came down there and arrested me; I was coming from the. house where I had went for a drink of water; the stuff I had been drinking was about to burn me up and the water I drank kind of roused me up; but I was not sober and did not know very much.”

He was asked if he had paid Mr. Burford for the repairs on the car. State’s objection sustained. Defendant offered to prove that he paid Mr. Burford about $90.

Instruction No. 5, given by the court, is as follows:

“You are further instructed that the defendant, Stanley Huffman, does not deny that an automobile, belonging to J. B. Burford, was driven out of the town of Lindsay, on the afternoon of August 13, 1920, but claims, if he drove the ear, that he was irresponsible for his actions at said time, due to the fact that he was under the influence of intoxicating drinks and did not know the result of his actions; that at said time his mental powers were so overcome by said intoxicants that he was incapable of forming , a criminal intent. In this connection you are instructed that, before the defendant can be found guilty of the crime charged, he must have a criminal intent to commit the crime at the time it is alleged that it was committed, but you are further instructed, in this connection, that a man is presumed to intend the result of his actions and you are further instructed that, under the law of this state, no act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition, and to this end you are further instructed that, if you find from all the evidence introduced in this ease under the instructions herein given, beyond a reasonable doubt, that the defendant was guilty, as charged in the information, you will return a verdict of guilty, and assess his punishment as hereinbefore set forth, even though you may believe that he was intoxicated at the time of the commission of the alleged offense. If, however, all of the evidence taken together creates a reasonable doubt in your mind that the defendant committed the offense charged about the time and within the county of Garvin, state of Oklahoma, then and in that event it is your duty to return a verdict of not guilty. (Excepted to and exception allowed. W. L. Eagleton, Judge.)”

The instruction asked by the defendant is asi follows:

“Gentlemen of the jury, you are instructed that the defendant, Stanley Huffman, makes no denial that an automobile belonging to one John Burford, was driven out of the city of Lindsay, in Garvin county, Okla., on the late afternoon of August 13, 1920. He claims, however, that if he drove said car he was irresponsible for his actions at said time, due to the fact, as he alleges, that he was so under the influence of stimulants that he did not know the result of his acts. He claims that at said time his mental powers were so overcome by said intoxicants that he was incapable of reasoning, and that it was impossible for him to form a criminal intent. You are told that, in order to constitute the crime of larceny, a criminal intent must exist in the mind of the defendant at the time the crime- is committed, and it is incumbent upon the state to show such intent by competent evidence. In this case, if you shall find from the evidence that the defendant, Stanley Huffman, was so intoxicated that he could not think rationally, and that he was incapable of forming an intent to steal said car, and to know the result of his acts, or if you shall have a reasonable doubt in your mind as to whether he was incapable of forming a criminal intent, and of knowing the result of his acts, then you shall acquit him. (Refused and exception allowed. W. L. Eagleton, Judge.) ”

Our Penal Code provides:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.” Comp. Stats. 1921, § 1512.-

This section is merely the adoption by the Legislature of the universal rule that voluntary intoxication is never a justification or excuse for the commission of a crime.. The principle is everywhere recognized that voluntary intoxication is no justification or excuse for crime, nor does it in any degree mitigate or palliate an offense actually committed. Where, however, the essence of a crime depends upon the intent with which an act was done, or where an essential ingredient of the crime consists in the doing of an unlawful act with a deliberate and premeditated purpose, the mental condition of the defendant, whether that condition is occasioned by voluntary intoxication, or otherwise, is an important factor to be considered.

A distinction is plainly drawn between cases where the act done constitutes the offense and cases where there must be combined with the act done the intent of the accused in order to constitute the offense. For instance, in homicide cases, evidence of intoxication is admitted, never to excuse the homicide, but to assist the jury in finding the presence or absence of the particular intent which marks the particular degree.

In Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031, it is held:

“Intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because in connection with other facts, an absence of malice or premeditation may appear.”

And see Collier v. State, 17 Okla. Cr. 139, 186 Pac. 963, 12 A. L. R. 839.

Likewise, in burglary it is admissible, not to justify the acts of breaking and entering, but to throw light upon the additional element, the intent to commit some other crime which is the particular element necessary to constitute this species of crime. When one takes the property of another, to make it larceny, a felonious intent must be shown, and while this may be inferred from the character of the taking, the defendant may show that he was unconscious of what he was doing at the time, or too drunk to form or have any felonious intent.

The statutory definition of larceny makes the intent to deprive another of the property taken a particular and essential element to constitute the crime, without which it does not exist, as well as upon the uniform classification of larceny by text-writers and courts, as a crime requiring a specific or particular intent. 1 Whart. Cr. Law, pars. 51, 53; 1 McClain Cr. Law, par. 161; Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883; McSpadden v. Territory, 7 Okla. Cr. 228, 122 Pac. 1105.

In Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782, the court said :

“The intent must be felonious, and must be to deprive the owner, not temporarily, but permanently, of the property, and need 'not be lucri causa. A taking of personal property with the intent to deprive the owner temporarily of his property, and return; the same to him, is not larceny, but is trespass; is not felony, but a misdemeanor. The felonious intent is one of the material ingredients of the crime of larceny, and the burden is on the prosecution to prove this intent to the satisfaction of the jury beyond a reasonable doubt, the same as any other material constituent of the erime.”

In People v. Walker, 38 Mich. 156, a larceny case, the verdict was set aside for error in charging the jury as follows:

“Even if the jury should believe that defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the alleged offense, it is no excuse for him, and they should not take it into consideration. A man who voluntarily puts himself in condition to have no control of his actions must be held to intend the consequences. ’ ’

In the opinion, Cooley, J., said:

‘ ‘ This charge was given in reliance, upon the general principle that drunkenness is no excuse for crime. While it is true that drunkenness cannot excuse crime, it is equally true that, when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass, but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime has not been committed. ’

In Chatham v. State, 92 Ala. 47, 9 South. 607, another larceny ease, the court said:

“When the offense consists of an act committed with a particular intent, when a specific intent is of the essence of the crime, drunkenness, as affecting the mental state * * * of the accused, becomes a proper subject to be considered by the jury in deciding the question of intent.”

See, also, Wood v. State, 34 Ark. 341, 36 Am. Rep. 13; State v. Bell, 29 Iowa, 318; State v. Schingen, 20 Wis. 79.

It follows that, if the defendant did in fact commit the crime with which he was charged, his intoxicated condition would not avail either to justify or excuse it. On the other hand, if he was so intoxicated that he did not know what he was doing when he took the car, he could not have entertained the specific intent which is essential to the crime charged. In our opinion the court’s instruction No. 5, herehi quoted, tended to discredit the defense made. In this instruction it is said:

“That before the defendant can be found guilty of the crime charged, he must have a criminal intent to commit the crime at the time it is alleged that it was committed, but you) are further instructed in this connection that a man is presumed to intend the result of his actions.”

From an application of the principle that a man is presumed to intend to do that which he does do and also to intend the natural consequences of his acts, juries very naturally and usually do infer, from the acts entering into the crime of larceny and the manner of their commission, the intent to deprive another of the property taken; but this is by no means the necessary inference, for the intent accompanying the acts may be entirely wanting, or in itself an innocent one. For instance, the property may be taken with an intent to return it, or be taken by mistake, or some intent other than to deprive the owner thereof, in which case larceny has not, of course, been committed. The intent to steal does not follow the act of taking as a legal and conclusive presumption.

If the theory of the defense was true, then the crime charged was not committed. The only question presented, from the undisputed facts in the case, was that of the felonious intent, and this was for the jury to pass on.

It follows from what has been said that the court erred in refusing to give the instruction requested upon the subject of the mental incapacity of the defendant, resulting from voluntary intoxication, to commit the crime charged.

For the reasons indicated, the judgment of the lower court is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JACK TERRELL v. STATE.
    No. A-3829.
    Opinion Filed Sept. 8, 1923.
    ( 217 Pac. 900.)
    Appeal from District Court, Garfield County.
    Jack Terrell was convicted of criminal syndicalism, and lie appeals.
    Appeal dismissed.
    Block, Mulks & Feigenholtz, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

The plaintiff in error was on the 17th day of January, 1920, in the district court of Garfield county, convicted of sabotage and criminal syndicalism, and his punishment was fixed at confinement in the penitentiary for a term of seven years. From the judgment rendered on the verdict, he appealed to this court. The Attorney General has filed a motion to dismiss this appeal for the reasdn that the plaintiff in error, pending this appeal, without leave of court, left the state of Oklahoma and went to the state of California, and there remained, and still remains, beyond the reach and operation of the process of this court; that, while so in the state of California, on July 11, 1923, the plaintiff in error was, in the county of Los Angeles, in said state, convicted of criminal syndicalism, a felony in that state, for which crime he is now confined in the San Quentin State Prison in California, all of which appears from proofs filed in support of this motion.

The motion to dismiss the appeal should be, and is, sustained, and the appeal is dismissed upon the showing made therein.

MATSON, P. J., and DOYLE, J., concur.


text:
    ARTHUR BABB v. STATE.
    No. A-4235.
    Opinion Filed Sept. 8, 1923.
    (217 Pac. 1054.)
    Appeal from County Court, Garfield County; E. L. Swig-ert, Judge.
    Arthur Babb was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    H. J. Sturgis, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the county court of Garfield county. Conviction of manufacturing intoxicating liquor, with punishment assessed at a fine of $500 and imprisonment in the county jail for 180 days. Judgment rendered November 9, 1921. Petition in error and case-made filed in this court March 6, 1922.

It is contended that the evidence is insufficient to sustain a conviction. The conviction is based upon the evidence of Charles Blakely, an ác'complice, and the testimony of other witnesses corroborative of Blakely’s testimony. The testimony of Blakely makes out a clear case of guilt on the part of this defendant, of the crime charged, and, if a conviction in this state were permissible upon the uncorroborated testimony of an accomplice, this conviction could stand.

Section 2701, Compiled Statutes 1921, provides:

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

It is contended by counsel for plaintiff in error that the corroboration of the accomplice in this ease only tends to show the commission of the offense, and wholly fails to tend to connect this plaintiff in error with this commission. We find ample evidence in the record of witnesses other than the accomplice, which tends to prove the manufacture of intoxicating liquor by somebody, but the testimony of these witnesses other than the accomplice wholly fails to have any tendency to connect the defendant with the offense charged.

There are some suspicious circumstances in evidence, but such circumstances, when considered in connection with the accomplice’s testimony, do not necessarily tend to connect the defendant with the crime charged. The Legislature has been fit to provide that a conviction cannot be based upon the uncorroborated testimony of an accomplice. The Legislature has also further provided that, if an accomplice be corroborated, the corroborating testimony must go further than merely prove the commission of the crime by somebody; the corroborating testimony must tend, when considered with the accomplice’s testimony, to connect the defendant with the commission of the offense. If it does not do so, the conviction cannot stand. The testimony, then, as a whole is sufficient in law to sustain the conviction. The evidence 'in this case shows conclusively that the witness Blakely was an accomplice, and, in the opinion of the court, corroboration of his testimony was insufficient in law to sustain the conviction.

For such reason the judgment is reversed, and the cause remanded to the trial court, for further proceedings not inconsistent with this opinion.


text:
    O. G. CUTRIGHT et al. v. STATE.
    No. A-4154.
    Opinion Filed Sept. 8, 1923.
    (217 Pac. 1056.)
    Appeal from County Court, Canadian County; W. A. Maurer, Judge.
    O. G. Outright and three others were convicted of gambling, and they appeal.
    Affirmed.
    E. T. Barbour, for plaintiffs in error.
    George P. Short, Atty. Gen., for the State.
   PER CURIAM.

Appeal from judgments of conviction of the county court of Canadian county rendered September 3, 1921. Plaintiffs in error were jointly tried and found guilty of the crime of gambling, and each sentenced by the court as above stated, and jointly prosecute this appeal.

It is first alleged that the information is insufficient to charge the crime of gambling. The information charges that plaintiffs in error, on the 27th of March, 1921, “did unlawfully, willfully, and knowingly bet and play at a certain prohibited game, same being a game of chance, to wit, poker, played with cards, * * * the said prohibited game then and there being willfully and unlawfully played by (naming defendants) for money,” contrary to the statutes, etc. The information is sufficient. State v. Carter, 2 Okla. Cr. 706, 103 Pac. 1042.

It is also contended that the evidence is insufficient to sustain the conviction. There is some conflict in the evidence. The sheriff and one of his deputy sheriffs who raided the parties testified that they were engaged in a game of stud poker, with the cards dealt as they are dealt in that game, and that 25 cents in money was taken from the table at the time the parties were surprised by the' presence of the officers. Some of the defendants took the witness stand, and testified that they were engaged in a game of pitch, and were not gambling, and that the 25 cents was thrown on the table for the purpose of buying some bread.

The location' of the, game was at the home of the defendant Outright, in the country about two miles northwest of the town of Yukon, and the time was about'3 o’clock in the’ afternoon on Easter Sunday, 1921. On that day and hour it is unlawful to sell bread in the state of Oklahoma. Some of the defendants who testified showed very little familiarity with the method in which the game of “pitch” is played. The layout of the cards, from the testimony of the officers and from the admission of the defendants, indicated that a game of stud poker was in progress. In addition the officers testified that an effort was made by the defendants to square the matter without arrest.

We think the facts and circumstances, coupled with the apparent contradictions :and implied admissions, are sufficient to sustain the verdict and judgments. For that reason the judgments are affirmed.


text:
    TOM REED v. STATE.
    No. A-4266.
    Opinion Filed Sept. 8, 1923.
    (217 Pac. 1058.)
    (Syllabus.)
    Intoxicating Ciquoirs — Possession with Intent to Sell — Insufficiency of Evidence. In a prosecution for having possession of intoxicating liquor with intent to sell the same, where there is a total absence of direct or presumptive evidence to sustain the charge, the judgment of conviction will be reversed.
    Appeal from County Court, Nowata County; R. M. God-frey, Judge.

      Tom Reed was convicted of a violation of the prohibitory liquor law, and he appeals. •
    Reversed.
    C. F. Gowdy, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Tom Reed, was convicted in the county court of Nowata county upon an information charging that he did have in his possession two one-half pints of whisky with the unlawful intent to sell the same, and his punishment was fixed at confinement in the county jail for 30 days and a fine of $50. From the judgment rendered on the verdict he appeals.

It is contended that the testimony was wholly insufficient to support the judgment of conviction.

On an examination of the record we are without doubt as to the propriety and necessity of reversing the judgment. The only evidence on the part of the state was that of P. H. Jones, who testified that he was a deputy sheriff, and on the date alleged he arrested the defendant and found a half pint of whis-ky on him, and that defendant told him that he got it from a negro in Nowata; that he also found a half pint of whisky behind the barn. This was all the testimony introduced by the state. The Attorney General very properly refuses to sustain the judgment.

■Mere possession of a half pint of whisky, without any facts in evidence from which it could be reasonably inferred that the same was had for the purpose and intent of sale, is not sufficient upon which to base a conviction upon the charge of having possession of such intoxicating liquor with intent to sell the same.

Because there was no evidence tending to show an unlawful intent, the judgment of conviction is reversed.

MATSON, P. J., and BESSEY, J., concur. .


text:
    WALTER WHITLOW v. STATE.
    No. A-4267.
    Opinion Filed Sept. 10, 1923.
    (218 Pac. 162.)
    (Syllabus.)
    1. Evidence — Character of Defendant — Issue to be First Raised by Defense. The state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character.
    2. Witnesses — Defendant as Witness in Own Behalf — Credibility at Issue as any Other Witness. When a defendant elects to testify in his own behalf, he occupies a double position. As a defendant his character cannot be attacked by the state; as a witness he puts his credibility at issue like any other witness.
    3. Same — Cross-Examination. A defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundaries, and thus be discredited and impeached.
    4. Same — Testimony of General Reputation of Defendant as Bootlegger Incompetent. Where the purpose of testimony is to impeach a witness for want of truth and veracity, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose.
    Appeal from County Court, Muskogee County; Enloe V. Vernor, Judge. •
    Walter Whitlow was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Walter Whitlow, was convicted of a charge that he did unlawfully transport one-half gallon of whisky from a point unknown in Muskogee county to a point two blocks north and one block west of the Bank of Boynton, behind Wilson’s barn, in the town of Boynton, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of 90 days. To reverse the judgment, he appeals.

The assignments of error relate to rulings of the court on the admission of evidence, and the sufficiency of the evidence taken as a whole to sustain the verdict and judgment of conviction.

C. W. McGill testified :

“I have a special deputy sheriff’s commission. I saw the defendant come out of Wilson’s barn, and he started to hand a bottle to Ben Shipman. I was about a block away. I started towards them, and the defendant went into the barn. I searched them both to find the bottle. Then I took them back to the barn. I found a half gallon of whisky in the barn. When I first saw the defendant he was coming out of Wilson’s house. Wilson is a colored man.”

The state offered no further proof in chief.

For the ..defense Ben Shipman testified, in substance, that he met the defendant on his way to his shop, and was talking to him about some work the defendant was doing for him on a truck when the special officer came up and searched them; that he did not see any whisky, and that the defendant did not have a half gallon of whisky or any bottle of any kind upon him,, that the special officer arrested the defendant, and took him into the barn, and witness left and saw nothing further.

As a witness in his own behalf the defendant testified:

“I have lived in Boynton about 18 years. I have a wife and five children. I left home about 8 o’clock that morning to go to the blacksmith shop where I work. The alley near Wilson’s barn goes direct from my house to the shop. As I passed Wilson’s barn I met Ben Shipman, and he asked me about some work I was doing for him on his truck. I told him the work was done. While we were talking there, about 10 feet from the barn, McGill came up, and said, ‘ Consider yourselves under arrest, ’ and told me to come with him. He went to the back door of the barn, but could not open it. Then we went around to the front door, and he found the whisky covered up in the corner of the barn. I did not have any whisky, and did not know anything about it,'the first time I ever saw it was when Mr. McGill found it.”

In rebuttal the state called three witnesses, who were by the court permitted, over the objection of the defendant, to testify as to the general reputation of both the defendant and defendant’s witness, Ben Shipman, as being parties habitually inclined to drinking, and also as to the general reputation of the defendant as to being a bootlegger.

The question presented is whether such evidence is competent and admissible to impeach the credibility of the defendant as a witness.

The charge in this case is a violation of that subdivision of the enforcement act which provides that it shall be unlawful “to ship or in any way convey such liquor from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized,” and it was only necessary for the state to prove such unlawful conveyance. It was not necessary to prove unlawful intent, and character was not an element of the offense, and did not tend to prove the issue to be tried. Proctor v. State, 8 Okla. Cr. 537, 129 Pac. 77.

It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.

Says Bishop:

“Bad character is never admissible in evidence against a! defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.” 1 Bishop’s New Cr. Proc. par. 1112.

And we hold the fact that an offense has been committed cannot be proved by common rumor or general repute.

In general, it may be said that a defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundaries, and thus be discredited and impeached. Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58.

Our statute provides (section 585, Comp. Stats. 1921) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense.

In the case of Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244, it is held that:

“For the purpose of affecting the credibility of a witness, he may be asked as to whether or not he has ever been convicted of a violation of the prohibitory liquor law of the state.”

In tbe absence of any further specific provision in our Code of Criminal Procedure, the common-law rule prevails (section 2345, Comp. Stats. 1921); and, when it is sought to impeach a witness by general reputation, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides. In other words, where the purpose of testimony is to impeach a witness for want of veracity, the testimony, to be competent, must be confined to witness’ general character or reputation for truth in the community in which he resides. To impeach him on this inquiry the testimony must show that his general reputation for truth is bad. Kirk et al. v. State, 11 Okla. Cr. 203, 145 Pac. 307.

In Cantrell v. State, 12 Okla. Cr. 534, 159 Pac. 1092, it is said:

“It is a doctrine as old as free government that men who are placed upon trial charged with the violation of criminal statutes are to be tried for the offense alleged against them, and are not to be tried upon a reputation for having committed similar or kindred offenses. The issue in a criminal ease is single, and is always based upon the question, Is the defendant at the bar guilty of the offense charged against him in the information? and not, Has he the reputation of being guilty of similar or other offenses against the laws of this country?”

It follows that evidence of the general reputation of the defendant as to being a bootlegger was incompetent to impeach his credibility as a witness or for any other purpose. Its admission was therefore prejudicial to the' substantial rights of. the defendant. The judgment of the lower court is therefore reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    THOMAS J. HOSMER v. STATE.
    No. A-4204.
    Opinion Filed Sept. 13, 1923.
    (218 Pac. 164.)
    (Syllabus.)
    1. Contempt — Contempt as at Common Law. The constitutional and statutory definitions of contempt are not all-inclusive. There may be cases of contempt as at common law not included in either definition.
    2. Contempt — Constitutional Right to Be Heard. One charged with contempt, either direct or indirect, or at common law, has, by section 25, art. 2, of the Constitution, a right to be heard before punishment is assessed.
    3. Same. The constitutional “right to be heard,” • in a contempt proceeding, means the right of the accused to introduce evidence in- a formal, orderly manner in justification or in mitigation of the offense, and to have such evidence considered before judgment in contempt is rendered.
    4. Former Holding Overruled. The holding of this court in Ex parte Ballew, 20 Okla. Cr. 105, 201 Pac. 525, to the effect that the constitutional and statutory definitions of contempt exclude every contemptuous act not included in those definitions, is overruled.
    Appeal from County Court, Atoka County; J. M. Hum-phreys, Judge.
    Thomas J. Hosmer was adjudged in contempt of court, and he appeals.
    Reversed.
    J. W. Clark and D. H. Linebaugh, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Thomas J. Hosmer, plaintiff in error, was by the county judge of Atoka county, on the 12th day of December, 1921, adjudged to be in direct contempt of court, committed on the 6th day of December, 1921, and his punishment for said contempt was assessed at a fine of $500 and imprisonment in the county jail for a period of six months. From the judgment and order so made, he appeals. •

The record discloses that some time prior to the alleged offense there was a civil case pending in the county court, entitled Dameron v. Hosmer, the defendant Hosmer therein being the son of this plaintiff in error. It seems that a judgment for the plaintiff in error’s son, Hosmer, had been rendered and entered in the civil ease, and that the county judge, after a motion for a new trial had been filed, expressed his conviction, out of court, that the motion should be sustained and the judgment set aside. The plaintiff in error (as he claims, by invitation, though this is. denied by the judge) went into the office of J. M. Humphreys, county judge, to discuss this case. In the discussion he remonstrated and criticized the judge’s contemplated action of setting aside the verdict rendered. The dispute grew animated and personal, resulting in a personal encounter or assault upon the judge, or by one upon the other — possibly a mutual combat. Whether the plaintiff in error was the agressor or was in any manner justified in taking part in this encounter cannot be definitely ascertained from the record, because the plaintiff in error was refused permission to introduce testimony in support of his special plea showing justification. Upon this question the record discloses that the accusation was in writing and was filed by the county judge a few days after the difficulty, as follows:

“Comes now J. M. Humphreys, county judge of Atoka county, Okla., and gives information that the county court of Atoka county, Okla., is a court of record, and that J. M. Humphreys is judge of said county court, and that said county court is held in the courthouse in Atoka, Okla., and that most of the business is transacted in the office of said county judge in a room adjoining the district court room in said county courthouse, in said county and state; that said county court is continually in session every day of the week except Sunday, and office hours are between 9 a. m. and 5 p. m. of each working day.
“The said court further shows that Thomas J. Hosmer is a resident of Atoka, Okla., and is special officer for the Missouri, Kansas & Texas Railway Company, and that on Tuesday, the 6th day of December, 1921, the said Thomas J. Hosmer committed divers, numerous, and various acts of contempt against the county court and county judge of the Atoka county court in the county judge’s office of said county and state, between the hours of 9 a. m. and 12 m. on the said 6th day of December, 1921, during the session of the court and in its immediate view and presence.
“First. The said Thomas J. Hosmer disturbed the peace and quiet and dignity of the said county court and the judge thereof by loud, unusual, and profane language directed towards the judge of said court, and in particular the said Thomas J. Hosmer inquired of the said county judge whether or not the said court had sustained a motion for a new trial in the case of Dameron v. Hosmer, a civil case pending in the county court of Atoka county, and, when the court informed the said Hosmer that the said motion for a new trial had: been sustained, the said Hosmer immediately charged the court with having been bribed, and having received money for so holding. The judge of the said court warned the said Hosmer that he was in court, and that such boisterous conduct and language would not be tolerated. Whereupon the respondent, Hosmer, stated he would talk as he pleased, say what he pleased at any time or place, and that he would make the county judge like it. The court quietly informed the respondent that the courtroom and the courthouse was no time or place for such conduct, and asked the respondent to retire. The respondent became enraged, and said, ‘Well, by God, you will not try this case or any other one! I am 62 years old, and haven’t much longer to live, anyway, and I will see that you don’t try this case!’ The court again warned the respondent that he was boisterous, and acting contemptuously, and thereupon the defendant replied, ‘You have got to dismiss that case’ (meaning the case of Dameron v. Hosmer, hereinbefore mentioned). The court informed the respondent, Hosmer, that it was impossible for him to dismiss the case, whereupon the respondent, Hosmer, said, ‘Well, by God, I will make you dismiss it!’ And thereupon said Hosmer drew from his holster a large-sized caliber pistol, either a .38 or a .44, and proceeded to try to kill the said J. H. Humphreys, county judge, and, after a struggle with the assistance of the assistant county attorney, J. N. Max-ey, and Jack Bonham, deputy sheriff, and others, the respondent was disarmed.
“The court further gives this information: That during the attempt to subdue and disarm the respondent the respondent struck the said J. M. Humphreys, county judge of Atoka county, over the head with said pistol, which is of the weight of several pounds, and inflicted several scalp wounds upon the person of the said J. M. Humphreys, judge of the county court of Atoka county, Okla., causing considerable inconvenience, illness, and ignominy to fall upon the judge, and contempt upon the authority of the county court of Atoka county, Okla.
“It is therefore by the county court of Atoka county, Okla., ordered that a warrant of arrest be issued by the court clerk of Atoka county, Okla., for the arrest of the said Thomas J. Hosmer, and that his body be produced! in the Atoka county court, in the district courtroom thereof, at 10 o’clock a. m. on- the 12th day of December, 1921, then and there to be and remain and to answer the charges of this court, and until he is purged of said contempt.
“J. M. Humphreys, County Judge.”

Upon this accusation a warrant was issued, upon which the accused was arrested and brought into court, where he was represented by counsel, and filed a demurrer to the accusation on two grounds: First, that the accusation did not state facts constituting either a direct or an indirect contempt of court; and, second, that the accusation was not presented by any officer authorized by law to present, file, and prosecute the accusation made. The demurrer was overruled. Accused then demanded a trial by jury, which was refused. The accused then offered to file a lengthy response, 'showing that the accused was not guilty as charged.

A condensed statement of facts contained in tbe response was a specific denial of every allegation contained in the accusation; that at about 11 o’clock of the day of the difficulty the accused, while upon the streets of Atoka, was approached by Victor Dorrell, a nephew of the county judge, who stated to the accused that Judge Humphreys desired to see him in his office at the courthouse; that, in response to the request so made, the accused went into the judge’s office with Victor Dorrell; that he there found Judge Humphreys engaged in reading a newspaper; that before that there had been a civil action brought by A. L. Dameron again Ernest Hosmer, a son of the accused, wherein the plaintiff sought to recover damages for an injury claimed to have been sustained to his property by reason of an automobile collision; that at the trial of this cause before a jury in the county court a verdict for the defendant had been rendered and entered; that the plaintiff thereafter filed a motion for a new trial, which had been argued, but not decided, the same having been taken under advisement by the court; that, after being seated in the office of the county judge, Judge Humphreys stated to the accused that, after consideration of the motion for a new trial, he had decided that' it should be sustained, because in his opinion the jury failed to follow the weight of the evidence in the rendition of their verdict; that the accused stated that he regretted this contemplated action by the court, stating that it would cause his son additional trouble, and the expense of a new trial, and that he believed that the verdict-in the first trial should not be disturbed; that thereupon the judge, in substance, stated to the accused that, if he would pay him (Judge Humphreys) the sum of $100, he would arrange it so as to avoid another trial; that the accused thereupon stated that he would not permit his son to be held up in any such way; that the judge then stated that there were numerous boys and girls in and about Atoka that were driving automobiles around on their way to hell, and that the accused had another child who was going in that direction; that the accused warned the judge to make no further insinuations against members of his family, and started to leave the . room; that thereupon the judge' grabbed the ■ accused from behind, about his arms, andi hissed a bulldog owned by the judge at the accused; that while accused was being so held by the judge the dog attacked and bit the accused; that the judge was very angry, and called to his nephew to raise the window so that the accused might be thrown out, and called to the nephew to disarm the. accused; that the accused was a special officer of the Missouri, Kansas & Texas Kailway Company, charged with the duty of guarding and protecting the property of the company, and was authorized by law and the sheriff of Atoka county to go armed; that Dorrell got hold of the accused’s pistol, which was in a scabbard at his side, but that accused jerked the pistol from Dorrell, and called upon the judge to turn him loose, and call off the dog, or he would strike him (Judge Humphreys); that the judge declined to do either, and that the accused did strike at the judge over his shoulder while his arms were partially pinioned, and that, based upon information, he believed that the pistol struck the judge’s head, and probably caused an abrasion; that the judge then directed Dorrell to call for help; that thereupon a deputy sheriff entered, and accused surrendered his pistol to this deputy; that no other attempt was made to use the pistol in an offensive or a defensive manner; that the accused acted purely in his necessary self-defense, to protect himself against the assault made upon him by the judge, his nephew Dorrell, and the bulldog owned by the judge.

The request to. file this response or plea was denied, on the ground that the offense charged was a direct contempt, and' that' proof controverting the facts known to the trial judge would not be permitted. After denying the accused the right to file this response the court said:

“The statements made will be considered as the answer by the defense to the charge and his effort to purge himself.”

Whereupon the accused made a verbal plea of not guilty,, and asked permission to introduce evidence to show that fact by several witnesses there present. This request to offer proof was likewise denied. The offer was then repeated in different forms, and in each instance denied. Finally, after prolonging argument, the court said:

“Has the defendant anything to offer or to say to purge him of the contempt of court of which you (are) adjudged?”

Counsel for accused answered:

“Nothing further than what has been said.”

The court then addressed the accused, rehearsing the controversy in detail, and at length concluding as follows:

“It is sentence of the court that the defendant pay a fine of $500 and six months in the county jail, and, upon a failure to pay said fine and costs, it will be served out at $1 each day until fine and cost is paid.”

Afterwards a motion for a rehearing was argued and denied, and a motion for a new trial was overruled, and the case now comes here on appeal.

Plaintiff in error claims that if his conduct could be deemed to be contemptuous, it was an indirect contempt, upon which issue he was entitled to a trial to jury. In the course of the proceedings a jury was demanded, which was by the court refused. This difficulty took place in the private office of the county judge, during an intermission in the term, at a time when the court was not engaged in the trial of civil cases, and in the absence of the other officers of the court, no other person excepting Dorrell having been present at the time the difficulty commenced. While the disturbance was in progress others from nearby offices came in and prevented further hostilities. The questions involved are whether or not this conduct on the part of the plaintiff in error constituted a contempt of court, either under the common law or under the Constitution and statute laws of this state, and, if so, whether it was a direct or an indirect contempt, as defined by law, and whether the accused was deprived of a right to bp heard and make a defense within the meaning and terms of our Constitution. The law of contempt arises out of necessity. The power to enforce decorum in the courts and obedience to their orders and just measures is so essential that it would be difficult to carry on court procedure in an efficient and orderly manner without the power to punish those who disobey such orders, or who are guilty of conduct calculated to bring the authority and administration of law into disrespect, or to interfere with its orderly processes.

Contempts, according to the common law and under our Constitution and statutes, are classified as direct and indirect. Our Constitution, in either case, gives the accused the right to a hearing.

The statute (section 1697, infra) defining indirect contempt is broader and more comprehensive than the definition given in the Constitution, and the statute provides that, in all eases of indirect contempt, whether as defined by the Constitution or as defined by statute, the accused shall have a right to a trial by jury.

Section 1699, Comp Stat. 1921, provides:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

Section 25, art. 2, of the Constitution is as follows:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt; Provided, that any person accused of violating or disobeying, when not in the presence or hearing of'the court, or judge sitting as such, any order of injunction, or restraint, made or entered! by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as tó the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Direct and indirect contempts are defined by statute (s.ection 1697, Comp. Stat. 1921):

“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court.”

This and the two succeeding sections of the statutes were originally enacted by the territorial Legislature before statehood ; and in Smythe v. Smythe, 28 Okla. 266, 114 Pac. 257, it was held that the powers granted the territorial Legislature by tbe Organic Act creating the territory did not include the power to modify the common law governing contempts of court, following Smith v. Speed, 11 Okla. 95, 66 Pac. 511, 55 L. R. A. 402. These sections of the territorial statutes were, however, carried over and incorporated in the Harris-Day Code, and became effective May 16, 1913, thus becoming the statutory law of this state, in compliance with our constitutional provision that “The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt.”

Contempt at common law has been variously defined. In 13 C. J. 4, it is defined thus:

“A contempt of court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. A direct contempt is an open insult committed in the presence of the court to the person of the presiding judge, or a resistance or defiance in his presence to its powers or authority, or improper conduct so near to the court as to interrupt its proceedings. A constructive contempt is an act done, not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice. ’ ’

In 6 R. C. L. 488, it is defined in this language:

“A direct contempt being such as is offered in the presence of the court while pitting judicially; and an indirect, or, as it is sometimes called, a constructive contempt being such as tends by its operation, though not committed in court, to obstruct and embarrass or prevent the due administration of justice.”

Blackstone says contempt of court may be committed by speaking or writing (or acting) contemptuously of the court or judges acting in their judicial capacity. Numerous definitions of like general import, as well as more specific definitions applicable to the facts here, may be found in decisions quoted in Ex parte McCown, 139 N. C. 95, 51 S. E. 957, 2 L. R. A. (N. S.) 603.

Now it will be seen that we may have a case here not falling within the purview of the definitions of either direct contempt or indirect contempt, as found in our Constitution and statutes, but which does fall within the definitions as established at common law. The contemptuous conduct here charged was not “disorderly or insolent behavior committed during the session of the court and in its immediate' view or presence,” nor, “any breach, of the peace, or noise or disturbance so near to it as to interrupt its proceedings,” the statutory definitions of direct contempts; nor was it an indirect contempt, as defined by our statute as being “a willful disobedience of any process or order lawfully issued or made by the court.” There are many instances of contempt at common law, perpetrated in or out of court, that do not come within either of these statutory definitions; for instance, intimidating witnesses or conveying them into another jurisdiction, the illegal influencing or bribing of witnesses or jurors, threats and intimidation against judges and officers of the court, falsification of 'records, etc. If the offense in this case, then, is not contempt within the terms of the statutes, but falls within the definitions established at common law, it may be punished as such, subject to the provisions of our Constitution and statutes not in conflict with it. The concluding sentence of our constitutional declaration on contempts is: “In no case shall a penalty or punishment be imposed for contempt until an opportunity to be heard is given.” This, we think, includes all contempts at common law.

It has been found by numerous authorities that an assault upon a judge, growing out of or connected with any unfinished judicial matter, perpetrated at or in the vicinity of the place of holding court, while the matter in dispute is still pending, constitutes a direct contempt of court. A well-considered case of this character is Ex parte McCown, supra, a case ably and exhaustively analyzed, quoting from many authorities giving their reasons and deductions, all to the effect that one who assaults a judge under such circumstances is guilty of direct contempt, for which he may, in the absence of constitutional limitations, be punished summarily. A line of more recent decisions is to the same effect. See Weldon v. State, 150 Ark. 407, 234 S. W. 466, 18 A. L. R. 202, in which the following syllabus appears:

“An assault upon the judge during an intermission of the court, at a place other than that where the court is held, because of his official conduct with respect to a ease on trial before him, is a contempt which the court has inherent power to punish.”

See, also, In re Fountain, 182 N. C. 49, 108 S. E. 324, 18 A. L. R. 208, pp. 213, 214, with annotations on assaults committed out of court.

We have found but two decisions that to some degree might indicate that the offense here charged was not a direct contempt. In Snyder v. State, 151 Ind. 553, 52 N. E. 152, the court held:

“Where attorneys during a court day, but while it was not in session, held a meeting, at which one of their number presided, in a room in the courthouse adjoining the courtroom, and occasionally used as a courtroom, which meeting was attended by the judge, at their request, their acts in his presence are not committed in the presence of the court, and hence cannot constitute direct contempt.”

And in State v. Root, 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568, it was held that a practicing attorney who in the streets and in stores, not in the presence nor hearing of the court, uses abusive and defamatory language against the judge is not guilty of contempt of court. Held, further, that an affidavit charging a direct criminal contempt will be tested by the rules of criminal pleading applicable to indictments and informations.

After a painstaking consideration of the authorities above cited we have come to the conclusion that the facts in this case, as stated in the written accusation, did not constitute either a direct or an indirect contempt, as defined by our statutes, but that it did state a direct contempt at common law, and that the common law and procedure governs, in so far as not superseded or modified by the Constitution or by statutory enactments authorized by the Constitution.

The holding of this court in Ex parte Ballew, 20 Okla. Cr. 105, 201 Pac. 525, that the rule of statutory construction, “Expressio unius est exclusio alterius,” applies to statutory regulations governing contempts, is overruled. We hold that, if the assault in the Ballew Case grew out of a pending injunction, it amounted to a direct contempt, punishable as at common law, subject to the modification in our Constitution; if it grew out of personal matters not connected with pending or past litigation, it was not a contempt of court, either direct or indirect. From the record in the Ballew Case it was impossible to ascertain definitely the exact cause or purpose of the assault made upon the judge.

Our Constitution provides that, in all cases of contempt, the accused shall be accorded a hearing. A “hearing” is defined by Bouvier, 1429, as:

“The examination of a prisoner charged with a crime or misdemeanor and of the witnesses for the accused.”

A “hearing” before a United States Commissioner is defined as:

“An examination of a prisoner and of the witnesses for the prosecution and the defense.”

See Words and Phrases, First Series, vol. 4, p. 3238.

In legal parlance the word “hearing” usually denotes an investigation by the introduction of proof or the testimony of witnesses. Words and Phrases, Second Series, vol. 2, p. 832.

The right to a hearing is well stated in an opinion by Judge Doyle in Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719, which should, for a better comprehension of the points involved, be carefully read and considered. The logic and the conclusions reached in the Sullivan Case are unanswerable to the effect that the constitutional right to be heard in a matter of contempt means the right to introduce, in a formal, orderly manner, evidence in justification or in mitigation of the charge, and to have a record made of such proof, as in other cases.

It is clear, then, that, in a contempt proceeding, the right of the accused to a “hearing,” within the meaning of the term as used in our Constitution, is more than the right to make a mere verbal explanation, or to listen to a speech from the bench by an interested judge denouncing the conduct of the accused. It includes the right to introduce evidence and have that evidence considered. The denial of that right to the accused in this case, in support of his plea of not guilty, was error. The record indicates that the accused was not accorded a “hearing” as is contemplated by our Constitution.

The Attorney General’s confession of error is sustained, and the cause is reversed.

MATSON, P. J., and DOYLE, J., concur.