text:
    TOM BROWN v. STATE.
    No. A-3104.
    Opinion Filed March 1, 1919.
    (178 Pac. 700.)
    APPEAL AND ERROR — Briefs—Rule of Court — Affirmance. When no counsel appears, and no briefs are filed, the court will examine the pleadings, instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and. if no prejudicial error appears, will affirm the judgment. *

      Appeal frori District Court, Wagoner County; R. P. de Graffenried, Judge.

    Tom Brown was convicted of rape in the first degree, and sentenced to serve a term of 24 years in the penitentiary, and appeals.
    Judgment affirmed.

      Watts & Summers, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Afty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction for the crime of rape, rendered against the defendant in the district court of Wagoner county,. at‘the January, 1917, term. A petition in error, with case-made attached, was filed in this court on the, 8th day of August, 1917, and the cause was finally submitted at the November, 1918, term.

No counsel for the defendant appeared, and no brief has been filed in his behalf. Rule 9 of this court is as follows :

“When no counsel appears, and ho briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

Pursuant to said rule, the court has examined the pleadings, instructions, judgment, and 'Sentence, and has carefully considered the same in connection with the grounds of alleged error set forth in the petition.

Failing to find any prejudicial error, the judgment is affirmed, under rule 9, supra.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    ROSCOE ARNOLD v. STATE.
    No. A-2828.
    Opinion Filed March 10, 1919.
    (178 Pac. 897.)
    1. FORGERY — Forgery in First Degree — Information. ■ The information in this case carefully considered, and held to sufficiently charge forgery in the first degree.
    2. SAME — Information—Written Release of Mortgage. Where a written release of a mortgage upon real estate to secure the payment of a debt is forged, and the forged instrument is filed for record in the office of the county clerk in the county in which the land described in the mortgage is situated, the crime of forgery is thereby completed, and it is not necessary to allege in the information and prove that the forged instrument was delivered to and accepted by the party in whose favor such forged instrument was executed.
    3. TRIAL — Question of Fact — Directed Verdict. The jury are the exclusive judges of the facts, and. when there is any evidence tending reasonably to show the guilt of the defendant, it is not error to refuse to instruct the jury to acquit the defendant.
    4. APPEAL AND ERROR — Verdict—Evidence—Reversal. Where there is any legal, evidence to reasonably support the verdict rendered, this court will not disturb such verdict, notwithstanding the evidence is in conflict.
    5. FORGERY — Release of Mortgage — Evidence. Where the question of the forging of a release of a mortgage upon real estate to secure an indebtedness is being tried, it is not error for the court to admit in evidence forged deeds to the same land described in such forged release when such forged deeds place the title of said lands described in said forged release in a codefendant, as such deeds tend to show a motive for the execution of said forg^ release.
    6. TRIAL — Remarks of Court — Reversible Error. Where remarks are made by the trial judge in the presence of the jury, but not directed to them, in regard to evidence in the case, and the trial judge immediately thereafter states to the jury “he had nothing on earth to do with the facts” and that they “should not consider any remarks of the. court except when they were addressed to the jury,” and such remarks are not shown to have prejudiced the defendant, the making of such remarks do not constitute reversible error.
    7. APPEAL AND ERROR — Frauds, Statute of — Parol Evidence— Prejudice. It is error to admit oral evidence, except as to inheritance, as to title to real estate, but in the instant case the admission of such oral evidence could not have prejudiced the defendant: there being proof of title to the land described in said mortgage otherwise shown in one of the parties averred by the information to have been defrauded.
    8. FORGERY — Intent to Defraud — Information—Proof. Where it is averred in the information that two persons have an interest in the land upon which a release of mortgage was forged, proof that one of said persons owned such land is sufficient to establish the intent to cheat and defraud.
    9. APPEAL AND ■ ERROR — Harmless Error — Release of Mortgage —Evidence—Value. In a trial for the forgery of an instrument affecting an interest in land, the value of such land is not an issue in the case, and the admission of evidence as to its value is harmless error.
    10. VENUE — Proof—Reasonable Doubt — Circumstantial Evidence. Venue does not have to be proven beyond a reasonable doubt, and may be proven by circumstantial evidence; and. where there are circumstances and facts proven reasonably showing that the offense was committed partly in one county and partly in another county, the jurisdiction of the offense is in either county.
    11. SAME — Instruction—Forgery. In this case the defendant requested the court to instruct the jury that, if the jury found that the offense was committed entirely in another county than the one in which the trial was being conducted, a verdict of acquittal should be returned. Held, that the requested instruction was properly refused: (1) Because the evidence did not tend to sup- ' port the conclusion that the offense was committed entirely within the other county, and (2) because, had the evidence shown that the offense was committed entirely within the other county, it was the duty of the trial judge not to discharge the defendant, but to commit him and hold him for trial in the county in which the offense was shown to have been committed, as provided by section 5892, Rev. Laws 1910.
    12. SAME — Forgery of Mortgage Release — Evidence. Under the evidence in this case, the district court of Pontotoc county had jurisdiction of the offense of which the defendant was convicted.
    13. FORGERY — Instructions. The instructions of the court carefully considered, and held to correctly state the law.
    14. SAME — Forgery in First Degree — Evidence. We are of the opinion that the evidence in this case, though in conflict, reasonably supports the verdict of the jury, and that no prejudicial errors, were committed.

      Appeal from District Court, Pontotoc County; George C. Crump, Assigned Judge. . ■

    Roscoe Arnold was convicted of forgery in the first degree, and appeals.
    Affirmed.

      Amóte & Anderson and Crawford & Bolen, for plaintiff in error.

      S. P. Creeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Roscoe Arnold, hereinafter designated “defendant,” was jointly informed against with John Osborn for the offense of forgery in the first degree, convicted, and sentenced to imprisonment in the penitentiary at hard labor for the term of eight years. To reverse the judgment rendered, the defendant prosecutes this appeal.

The charging part of the information is as follows:

“That on or about the 16th day of November, 1915, that Roscoe Arnold and John Osborn, in Pontotoc county, state of Oklahoma, did commit the crime of forgery, fix*st degree, in manner and form as follows: That is to say the defendants did, in said county and state at the above-named day and year willfully, fraudulently, falsely, and feloniously make and forge1 a certain release of mortgage on real estate and instrument in writing, the same purporting to be the act and deed of one H. R. Snyder, and purporting to convey the rights and property of the said H. R. Snyder to one C. S. Hunter, in the real estate and property therein described, said release and instrument in wxfiting purporting to be the act and deed of H. R. Snyder, with the unlawful, wrongful, fraudulent, and felonious intent thexx and there on the part of them the said Roscoe Arnold and John Osborn to cheat, defraud and injure the said H. R. Snyder and C. S. Hunter, a true and correct certified copy of said false and fox-ged release and instrument in writing aforesaid is attached hereto incorporated herein and made a part hereof, marked ‘Exhibit A’ for identification, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

Exhibit A:

“Release of Mortgage.
“Know all men by these presents: In consideration of the payment of the debt secured thereby, I, H. R. Snyder, a single man, of Pike county, Indiana, does hereby release thé' one (1) mox’tgage made to me by C. S. Hunter, a single man, of Bexar county, Texas, dated December 7, 1914, recorded in Book 16, on page 83, which said mortgage secured two (2) promissory notes, covering the following described land: The west half of the southeast quarter, section 4, township 3 north, range 6 east, being eighty acres more or less, situated in the county of Pon-totoc, state of Oklahoma.
“Whereas, the two notes secured by said mortgage have been paid in full:
“Now, therefore, I, H. R. Snyder, the above-named mortgagee, do hereby remise, release and forever quitclaim all my right, title and interest in and to the above and foregoing described land unto G. S. Hunter, his heirs or assigns, forever.
“In testimony whereof, I have hereunto set my hand and seal this-day of-, 1915.
“H. R. Snyder.
“State of Oklahoma, County of Pott. — ss.:
“Before me, A. F. Streight, a notary public, in and for said county and state, on this the 16th day of November, 1915, personally appeared H. R. Snyder, to me known to be the identical person who executed the above and foregoing release, and acknowledged to me that he executed the same as his free, voluntary act and deed for the uses and purposes therein set forth.
“Witness my hand and notarial seal the day and year above set forth. A. F.- Streight, Notary Public.
“[Seal.] My commission expires Feb. 11th, 1919.”

Indorsed:

“4129. Release of Mortgage on Real Estate. From H. R. Snyder to C. S. Hunter.
“State of Oklahoma, County of Pontotoc — ss.:
“This instrument was filed for record on the 16th day of November, 1915, at 1 o’clock p. m., and duly recorded in Book 20, on page 253. Fee--. A.' L. Miles, County-Clerk, by Laura Anderson, Deputy.”

The defendant demurred to the information for the reason that it does not state facts sufficient to constitute a crime against the laws of the state of Oklahoma, which demurrer was overruled and exception saved.

There was a severance, and the state elected to try the defendant Roscoe Arnold.

The undenied evidence is that the release of the mortgage, the instrument alleged in -the information to be the subject of the forgery, was forged; that the said instrument was mailed to the county clerk of Pontotoc county and duly recorded in his office. The evidence as to whether or not the defendant participated in the forgery, and which we deem it unnecessary to recite, was in irreconcilable conflict; but there was legal evidence that the defendant impersonated H. R. Snyder, and in Shawnee, Pottawatomie county, acknowledged, in the name of H. R. Snyder, who was the owner of the mortgage alleged to be released by the said forged release, the execution of said release, before a duly qualified and acting notary public, and there was evidence by witnesses, other than the notary public before whom the acknowledgment was taken, that the defendant was in Shawnee on the- day the forged release was acknowledged, and there was evidence tending to show that the said forged release was written upon a typewriter in an office which the defendant frequented and which typewriter the defendant used, and which typewriter had peculiar type marks in its writing, and which appeared in said written release which was forged, and that after the filing of the said forged release for record the defendant and his codefendant in the information appeared together at the Farmers’ State Bank of Ada, and defendant’s codefendant attempted to borrow $3,000 on the land described in the said release, and there was also evidence tending to show that the name H. R. Snyder signed to said forged release had some of the characteristics of defendant’s handwriting.

At the close of the evidence for the state, the defendant demurred thereto, which demurrer the court overruled, and defendant excepted.

The defendant thereupon offered numerous witnesses, in addition to himself, tending to show that on the 16th day of November, 1915, the day the acknowledgment to the forged instrument was executed, he (the defendant) was not in Shawnee, and the defendant positively denied that he acknowledged said forged instrument or was in any wise connected with the forgery of said forged release.

It is earnestly contended by the defendant that the trial court erred in overruling the demurrer to the information because the information does not allege therein that the forged instrument was accepted by and delivered to the party in whose behalf the alleged forged instrument was made, and with this contention we cannot agree. The filing for record in the recording office of the county in which the land named in the forged release was situated was a sufficient evidence of delivery, if delivery thereof be necessary to constitute forgery, and this is alleged in the information, besides the crime of forgery was committed when the forged acknowledgment was executed.

We are of the opinion that the court did not err in ■overruling the demurrer to the information. Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334.

It is next insisted that the court erred in overruling the demurrer to the evidence, and, while a demurrer to the evidence is not authorized by the Code of Procedure Criminal of this state, we will consider such demurrer as a request for a directed verdict of acquittal, and, so considering, are of the opinion that there was evidence, though in direct conflict, if believed by the jury, sufficient to establish the guilt of the defendant. By an unbroken line of decisions of this court, it is held that where there is any legál evidence to establish the guilt of a defendant, though there be evidence to the contrary, a request for a directed verdict of acquittal should be refused.

The facts being exclusively the province of the jury to determine, and there being evidence, though in conflict, to sustain the finding of the jury, the contention of the defendant, “that the verdict of the jury is not sustained by the evidence and is contrary to law,” is without force.

Where there is any legal evidence to reasonably sustain the verdict of the jury, though the evidence be in conflict, that this court is powerless to disturb it has been so often held by this court as not to require a citation of authority in support thereof.

We have carefully considered the remarks of the trial judge during the trial, and especially his statement to the jury on cross-examination of Mrs. Georgia Frazier, “That the jury are the sole judges of the witnesses, if she is a good woman they can detect it, and if she is not they can detect it,” and are unable to say that any of the statements made by the trial judge at the trial can possibly be regarded as prejudicial errors. Again, we are impressed that the trial judge was most emphatic in impressing the jury that he (the judge) “had nothing on earth to do with the facts, and that they should not consider any remarks of the court, except when they were addressed to the jury.”

It is most earnestly urged that the court committed prejudicial error in admitting in evidence a deed from Marshall Eskridge to C. S. Hunter, and a deed from C. S. Hunter to Herbert Smith, and a deed from Herbert Smith to John Osborn, all of said deeds being for the land described in said forged release of mortgage, and all of said deeds being forged deeds, and with this contention we cannot agree, for the reason that the said forged deeds tended to show a motive for the execution of the said forged release, and especially as it was shown that said forged deeds were written upon a machine having the same distinctive characteristics as the typewriter upon which the forged release was written, and also tended to show that the said forged deed made a part of a chain of wrongdoing of which the forged release was a link, and also tended to show the connection of the defendant with the offense with which he was charged.

“Evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to prove a distinct felony and thus prejudice the accused.” (Joe Vickers v. United States, 1 Okla. Cr. 452, 92 Pac. 467.)

It is a fundamental principle of law that title to land must be proved by a writing, or by showing title by inheritance, and the court committed a» technical error in permitting Mr. Eskridge to prove by parol his interest and title to the land involved in this case; but we are at a loss to understand why such error should work a reversal in this case, because, if the evidence showed that it was intended by the forged release to defraud and injure H. R. Snyder, it was not necessary to also prove the intent to defraud and injure C. S. Hunter, and hence if the evidence of Hunter as to his interest in the land, which is the subject of the forged releases, had been excluded, the evidence is sufficient to sustain the averments in the information as to the intent to defraud and cheat.

It is also insisted that, from the fact that the state was allowed to show the value of the “Jones farm," the land described in the forged release, it was error for the trial judge to refuse to permit the defendant to show that the Jones farm was of less value than shown by the state. We are unable to see how the value of the Jones farm could in any wise have any bearing on the guilt or innocence of the defendant, and we are of the opinion that the court should not have permitted such immaterial evidence injected into the case; but certainly the value of the land could not have prejudicially affected the defendant.

The evidence of Mrs. John Roland as to the character of Mrs. Georgia Frazier was on motion of the defendant stricken, and the jury properly instructed not to regard it. This cured any injury that could have resulted to defendant from Mrs. Roland’s evidence.

The court struck the answers of Ruby Loveman to improper questions asked and answered by her, and properly instructed the jury not to consider said answers, and this we think fully relieved the defendant from any injury that could possibly arise from said answers to said improper examination by the county attorney.

The defendant complains most insistently that the court did not correctly instruct the jury, and that, notwithstanding that the record does not show that the court was requested to so instruct the jury, the court should have instructed the jury:

“That if the release was entirely executed in Pottawatomie county the district court of Pontotoc county would have no jurisdiction, and, if they should find such to be the fact, then their verdict should be for the defendant, for the reason that the district court of Pontotoc county had no jurisdiction.”

Conceding that, as claimed by the defendant, “it was the duty of the court, whether requested or not, to charge the jury as to the law applicable to every statement of fact formerly submitted by the evidence,” the contention “that the court should have directed the jury to acquit the defendant if the entire venue of the offense was in Pottawatomie county” is without merit, and, had an instruction to said effect been asked, the court would not have erred in refusing to give such instruction, for the reason that the same would have been in conflict with section 5892, Rev. Laws 1910, which reads:

“If the offense was committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable to await a warrant from the proper county for his arrest, or if the offense be a misdemeanor only, it may admit him to bail in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, and to be mentioned in the undertaking; and the. clerk must forthwith transmit a certified copy of the indictment or information, and all the papers in the action filed with him, to the county attorney of the proper county, the expense • of which transmission is chargeable to the county.”

We have carefully considered the instructions given and the instructions requested and refused, and find that the action of the court in the instructions given and the instructions refused is free from error. Section 5612, Rev. Laws 1910, provides:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

Venue does not have to be proved beyond a reasonable doubt. Ed Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988; Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Fuller v. Terr., 2 Okla. Cr. 86, 99 Pac. 1098.

“Venue may be proven by circumstantial evidence.” (Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Fuller v. Terr., 2 Okla. Cr. 86, 99 Pac. 1098; Filson v. Terr., 11 Okla. 351, 67 Pac. 473.)

We are of the opinion that there is evidence to show that the forged paper was written in Pontotoc county, that it was filed for record in said county, and that the circumstances proved in connection with said transaction sufficiently show that the “acts or effects thereof constituting or requisite to the offense” were done by defendant in Pontotoc county, and that consequently the district court of said county had'jurisdiction of the offense of which the defendant was found guilty.

We are of the opinion that the affidavit of a convict that he committed the offense of which the defendant was convicted, filed as the basis of a new trial upon the ground of newly discovered evidence, did not entitle the defendant to a new trial as a matter of right, but called into exercise the sound discretion of the trial court, and, it not being shown that the overruling of said motion was an abuse of such discretion, the overruling of said motion was not prejudicial error. Ryal v. State (No. A-2801) recently decided by this court, but not yet officially reported, and the authorities therein cited.

The record shows that the defendant was accorded a fair trial, and that he was defended by able attorneys, who brought to bear in defendant’s defense 'every possible theory, even the most technical, to exonerate the defendant, and in this court the efforts of his attorneys left nothing undone in oral argument and in their exhaustive brief, of which the defendant can rightfully complain.

The judgment of the trial court is affirmed.

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


text:
    ED CONLEY et al. v. STATE.
    No. A-2590.
    Opinion Filed December 28, 1918.
    Rehearing Denied March 14, 1919.
    (179 Pac. 480.)
    1. CONSPIRACY — To Sell Intoxicants — Sufficiency of Evidence. , Evidence that the defendants, acting conjointly, every day or so for several months received intoxicating liquors in large quantities, in three days aggregating six casks of beer and 49 cases of whisky, shipped to them in fictitious names, and so receipted for by the defendants, is sufficient evidence to sustain the finding of the jury that the defendants had such beer and whisky with intent to sell the same.
    2. INTOXICATING LIQUORS — Conspiracy—Intent to Sell — Information. In an information charging a conspiracy with intent to sell intoxicating liquors, it is not necessary to aver in said information the names of person or persons to whom the defendants intended to sell such liquors.
    3. TRIAL — Requested Instruction — General Instruction — Abstract Instruction. Requested instructions which are covered by general instructions by the court, or that arc abstract, are properly refused.
    4. APPEAL AND ERROR — Conviction—Sufficiency of Evidence. Upon a careful examination of the record in this case, it is found that the defendants did not interpose any evidence or other defense to their and each of their convictions, and they had a fair and impartial trial, and aro guilty as found by tlie jury beyond all reasonable doubt.
    а. EVIDENCE — Admission of Declaration of Conspirator — Evidence of Collusion. Slight evidence of collusion is all the law requires to admit the acts and declarations of a conspirator in evidence against his coconspirator.
    б. TRIAL — Defendant’s Failure to Testify — Instruction. A requested charge of defendant, who did not testify in the trial, that the jury should not consider liis failure to testify as a circumstance against him, was properly refused.

      Appeal from County Court, Oklahoma 'County; William H. Zwick, Judge.

    Ed Conley and Charles Clift were each convicted of unlawfully conspiring to commit the crime of unlawfully selling intoxicating liquors, their motion for new trial was overruled, and they appeal.
    Affirmed.

      G. H. Giddings and J. T. Dortch, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, Ed Conley and Charlie Clift, hereinafter styled defendants, were, informed against for the offense of unlawfully, willfully, and corruptly combining, confederating, conspiring, • and agreeing together and with each other to commit a crime, that of willfully and unlawfully selling spirituous and malt liquors, and each convicted, and each of said defendants sentenced to imprisonment in the county jail of Oklahoma county, Okla., for a period of one year, and each to pay a fine of $500. Defendants’ motion for a new trial being overruled, they bring error to this court.

The amended information upon which the defendants were tried is very voluminous, covering 34 pages. of the record, and we deem it unnecessary to copy more than the charging part of s'aid information, which is as follows:

“That said defendants did then and there, in said county and state, and within the jurisdiction of this court, unlawfully, willfully, and corruptly combine, confederate, conspire, and agree together and with each other and divers other persons to informant unknown, hereinafter referred to as other conspirators, to commit in said county and state a crime, that is, willfully and unlawfully to sell, barter, give away, and otherwise furnish spirituous, vinous, fermented, and malt liquors, and imitations thereof and substitutes therefor, capable of being used as a beverage and as and for use as a beverage, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.^
“And thereafter, to wit, on the 3d day of March, A. D. 1915, at Oklahoma City, in said county and state, the said Ed Conley, Charlie Clift, and said other conspirators, then and there being, did then and there, in pursuance of said agreement and conspiracy, and to effect the object thereof, willfully and unlawfully take and receive from Wells Fargo & Company .Express intoxicating liquors, to wit, four boxes of whisky, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

Then follows in the information 90 separate overt acts dealing with similar transactions of receiving and carrying away liquors on different dates from the Wells Fargo Express Company. The dates of these different overt acts of taking and carrying away liquors from the express company begin on the 3rd day of March, 1915, and date down to the 15th day of June, 1915.

To this information the defendants and each of them filed an amended demurrer upon the grounds: That the court is without jurisdiction; that the information fails to charge the defendants or either of them with the commission of any crime against the laws of the state of Oklahoma; that said information is not clearly and distinctly set forth in ordinary and concise language and in such manner to enable a person of ordinary understanding to know what is intended; that the said information does not substantially conform to the requirements of the laws of Oklahoma; that said .information attempts to charge these defendants and each of them with the commission of more than one offense and is duplicitous.

The court overruled the said amended demurrer, and the said defendants and each of them excepted.

The uncontradicted evidence is that the said defendants, acting conjointly, had large quantities of whisky and beer shipped to them in Oklahoma City every day or so for some months, the said shipments being made to fictitious persons; that said defendants conjointly received said whisky and beer and carried or caused it to be carried away from the office of the express company, and from the railroad company; that they so received and carried off said whisky and be,er in large quantities, the said receipts by them of said whisky and beer aggregating in three days six casks of beer and 49 cases of whisky. And the servants of the express and railroad company knew the contents of said casks and cases received by said defendants, and knew the said defendants, and permitted the said defendants and each of them to receive and to receipt in fictitious names for said whisky and beer received by the said defendants.

Neither of the defendants offered any evidence in the case.

Upon conclusion of the evidence the defendants and each of them demurred thereto, which demurrer was overruled, and exceptions saved.

The defendants and each of them requested the court to give the following instructions, numbered, respectively, 1, 2, 3, and 4, which instructions are as follows:

(1) “You are instructed, gentlemen of the jury, that under the laws of the state no person can be convicted of crime upon the uncorroborated testimony of an accomplice to that crime. Persons who act together in the commission of a crime are accomplices within this law, and under the undisputed evidence in this case the witnesses Hazelrig, Gowing, Buchanan, and Wagoner are accomplices, and the defendants cannot be convicted upon their testimony unless the same is corroborated by other evidence tending to connect the defendants with the crime committed, and such corroboration is not sufficient if it only shows the commission of the offense of conspiracy, but it must go further and corroborate the testimony of said witnesses as to one or more of the overt acts charged in the information, and if it fails to do this, you will find the defendants not guilty.”
(2) “You are instructed that you cannot consider the testimony of the witnesses Elrick and Donovan in this case as to shipments of liquor received by the defendants from the Missouri, Kansas & Texas Railroad Company, unless you believe from the evidence that the state has proven a conspiracy between the defendants as charged in the information, and that the state has also proven one or more overt acts which are charged in the information.”
(3) “You are instructed that you cannot consider in this case any independent acts committed by either one of the defendants as evidence against the other unless you believe from the evidence that the state has established beyond a reasonable doubt that said acts were committed pursuant to a conspiracy between the defendants charged in the information.” !
(4) “Under the law of this state, the defendants were not required to testify as witnesses, and their failure to do so cannot be considered by you or commented upon by the prosecuting attorney, as a circumstance against them, for they had a right to refuse to testify, and such refusal raised no presumption of guilt.”

The court refused to give either of said instructions, and to such refusal the defendants and each of them duly excepted.

In the petition in error the defendants and each of them assigned 55 errors, but only argued in their brief the following:

(1) Overruling of demurrer to amended information
(2) Overruling demurrer to the evidence.
(3) Refusal of the court to give instructions respec-in this case.

tively numbered 1, 2, 3, and 4 requested by the defendants.

The material ground argued by defendants to the insufficiency of the information is that it does not state to whom the defendants intended to sell said liquor and beer.

The learned attorneys of the defendants are mistaken in their contention that the person or persons to whom the defendants intended to sell said whisky and beer should be named in the information. The gravamen of the crime which the defendants are charged to have conspired to commit was having in their possession -intoxicating liquors with intent to sell the same, and hence it was not germane to any issue in the case to aver the person or persons to whom the defendant intended to sell said intoxicating liquors.

Section 2232, Rev. Laws 1910, reads:

“If two or more persons conspire * * * to commit any crime or * * * to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws, they are guilty of a misdemeanor.”

In W. S. Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796, this court defines a conspiracy generally as:

“A combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means.”

We have not overlooked section 2234, Rev. Laws 1910, which reads:

“No agreement to commit a felony or to commit a. misdemeanor amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.”

The law of this state makes it a misdemeanor to have-in one’s possession intoxicating liquors with intent to sell the same.

The information in this case properly sets out the conspiracy charged, the crime the defendants conspired to commit — having in their possession intoxicating liquors, with intent to sell the same — and particularly describes the very many overt acts done by the defendants in furtherance of such conspiracy, and was not subject to the iemurrer interposed to said information, and the court did not err in overruling said amended demurrer; the several grounds of demurrer interposed thereto, other than as to the sufficiency of said information, being without, force.

The evidence in this case is undenied that the defendants entered into a conspiracy to engage in the violation of the prohibitory laws of this state in a wholesale manner, as shown by the great quantities of intoxicating liquors almost daily for several months received by them, acting-con jointly.

In Ex parte Paul Hayes, 6 Okla. Cr. 321, 118 Pac. 609, it is held:

“Slight evidence of collusion is all the law requires to admit the acts and declarations of a conspirator in evidence against his coconspirator.”

In Norman Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57, it is held:

“That it is not necessary to prove beyond a reasonable doubt that said persons were concerned in the commission of the offense; slight evidence is sufficient to render evidence of acts of one person who was concerned in the commission of an offense competent as evidence against other persons who were also concerned in the commission of the offense.”

In Ralph Wells v. Territory of Oklahoma, 14 Okla. 436, 78 Pac. 124, it is held:

“Slight evidence of collusion is all that is required.”

In Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, it is said:

“Slight evidence of collusion is all that is required”— citing 2 Rice on Evid. 865, *333; 1 Greenleaf on Evid. (13th Ed.) *111; Anarchist’s Case, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.

The great quantity of intoxicating liquors almost daily for months received by the defendants, in the name of fictitious persons, sufficiently sustains the intent with which the defendants had said intoxicating liquors in their possession.

In Logan Billingsley v. State, 4 Okla. Cr. 597, 113 Pac. 241, it is held:

“In a prosecution for having liquor in possession with intent to sell the same, the quantity in possession is a circumstance which may be considered in determining the existence or absence of the intent to sell.”

Certainly it cannot be said that the quantity of whisky and beer which the uncontradicted evidence shows the defendants had in their possession almost daily for months could have been with any other intent than to sell the same, and, in the absence of any explanatory evidence on the part of the defendants or either one of them, was sufficient evidence for the jury to find beyond a reasonable doubt that the defendants had said beer and whisky in their possession with the intent to sell the same.

Under the law the quantity of whisky and beer proven to have been in the possession of the defendants made it a question to be weighed by the jury in connection with the presumption of innocence which accompanied the defendants through the trial, and, there being no evidence at all by the defendants, or either of them, the finding of the jury.in the case should not be interfered with.

The statute made the possession of great quantities of intoxicating liquors prima facie evidence of an intent to violate the prohibtory liquor laws of this state, and in Alex Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071, it is held:

“The phrase ‘prima facie evidence,’ as used in the statute, is such evidence as in the judgment of the law is sufficient to establish the fact, and evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proved; yet it does not make it obligatory upon the jury to convict after the presentation of such proof, whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, are considered, is for the determination of the jury.”

It follows that the court did not err in overruling the demurrer to the evidence.

There is no evidence in the case that any one of the witnesses who testified in this case was an accomplice of the ■defendants, and therefore requested instruction numbered 1 was abstract and properly refused. Requested instruction numbered 2 is fully covered by the instruction of the •court, and therefore properly refused. Requested instruction numbered 3 was properly refused for the reason that it is involved, and also because the law intended to be given by said instruction is sufficiently covered by the instructions of the court. Requested instruction numbered 4 was properly refused. Sturgis v. State, 2 Okla. Cr. 262, 102 Pac. 57; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

In Elmer Dunn v. State, 15 Okla. Cr. 245, 176 Pac. 86, it is held:

“A requested charge of a defendant who did not testify in the trial that the jury be instructed not to consider has failure to testify as a circumstance against him is properly refused.” *

Upon a most careful reading of the entire' record in this case and consideration of the briefs of the defendants' attorneys, we are convinced that the'.defendants and each of them had a fair trial, and are guilty as charged beyond a reasonable doubt, and that they were ably defended in the trial court and skillfully represented in this court.

The motion for a new trial was properly ovérruled.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    E. V. ROBNETT v. STATE.
    No. A-2431.
    Opinion Filed December 14, 1918.
    Rehearing Denied March 20, 1919.
    (178 Pac. 890.)
    1. CONTINUANCE — Surprise. An application for a continuance on the ground of surprise, because the court granted leave to indorse on the indictment the name of the complaining witness, held properly overruled.
    2. APPEAL AND ERROR — Discretion—Continuance. Applications for continuance are addressed lo the sound discretion of the court under all the circumstances of the case, and unless an abuse of such discretion is shown its judgment will not be .reversed on appeal.

      Appeal from Superior Coilrt, Oklahoma County; Edward Detoes Oldfield, Judge.

    E. V. Robnett was convicted of assault and battery, and he appeals.
    Affirmed.

      Sam Hooker and Wm. H. Zwick, for plaintiff in error.

      S. P. Freeling, Atty. Gen.,«and R, McMillan, Asst. Atty. Gen., for. the State.
   PER CURIAM.

The plaintiff in error was indicted for assault and battery with a dangerous weapon with intent to do bodily harm, alleged to have been committed with a revolver, with which E. V. Robnett, the • defendant, inflicted upon the body of one J. H. Jimmerson dangerous wounds. Upon his trial the verdict was guilty of assault .and battery, and fixing his punishment at confinement in “the county jail for 30 days and a fine of $100. From the judgment rendered on the verdict, he appeals.

The only assignment of error presented in the brief is that the court erred in refusing to grant- a continuance. It appears that when the case was first called for trial,, about three weeks after the defendant had entered his plea, it was continued for three weeks. When the case was again called for trial, the county attorney was granted leave to indorse on the indictment the names of additional witnesses. Whereupon the defendant filed a motion for continuance on the ground of surprise, and the trial was postponed for one week, at which time the case came regularly on for trial. Thereupon the county attorney asked leave to indorse the name of the complaining witness, J. H. Jimmerson, to which the defendant objected. Thereupon the record is as follows:

“By the Court: Jimmerson being the prosecuting witness named in the indictment, the objection is ver-ruled.
“By Mr. Hooker: To which the defendant excepts.
“By the Court: Is the state ready?”
“The Prosecuting Attorney: I think so; yes, sir.
“By the Court: Is the defendant ready?
“By Mr. Zwick: With reference to the ruling of the court in permitting the indorsement of the witness Jim-merson on the indictment, the defendant prays for a continuance, or for at least a reasonable time in which to make a showing for a continuance, stating to the court that the notice of the county attorney indicating his intention to indorse the name of Jimmerson on the information was served on one of the counsel for defendant today at the hour of 11:30 a. m., and that the defendant has thereby been taken by surprise, and did not know that the state intended to use this witness, and the defendant is not ready for trial at this time.
“By the Court: The witness in question is the prosecuting witness named in the indictment, is he not?
“By Mi’. Hooker: Yes, sir.
“By the Court: The motion for continuance is overruled.
“By Mr. Hooker: Exceptions; and is the time to make a showing for a continuance overruled also?
“By the Court: You have had plenty of time, if you were served with notice at 11:30 this morning.
“By Mr. Hooker: To. which the-defendant excepts.,
“By the Court: Is the defendant ready?
“By Mr. Hooker: With that exception.
“By the Court: Call the jury, Mr. Clerk.”

An application for continuance is addressed- to the sound discretion of the court, under -all the circumstances of the case, and unless an abuse of this discretion is shown, the judgment will not be reversed on appeal. Manifestly the application for a continuance in this case was properly overruled.

Finding no reversible error in the' record, the judgment is affirmed, and the cause is remanded to the district court of Oklahoma county.

ARMSTRONG and MATSON, JJ., concur.


author: DOYLE, P. J.

text:
    WEBB HIGH v. STATE.
    No. A-3011.
    Opinion Filed March 20, 1919.
    (179 Pac. 48.)
    INTOXICATING LIQCOKS — l'illawful Transportation — Sufficiency of Evidence. In a prosecution for unlawfully transporting intoxicating liquor, the evidence considered .and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from County Court, Oklahoma County; Wm. H. Ztoick, Judge.

      Webb High was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      Twyford, Smith & Crowe, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction in the county court of Oklahoma county upon an information charging Webb High with unlawfully transporting 164 half pints and nine pints of whisky in a Ford automobile from a point unknown, in, through, and along a certain alley between Grand avenue and California street and extending from Dewey street to Walker street in Oklahoma City.

The evidence shows that Ml E. Smith and C. M. Tyler were standing in the alley watching a certain place on Dewey street, and between 10 and 11 o’clock that night, they observed a Ford car turn from Dewey street into the alley between Grand and California streets, which car passed them and-' stopped. They both positively identify defendant High as the occupant of the car; and they arrested him and found three grips in the car which contained whisky in amount as alleged in the information.

As a witness in his own behalf the defendant testified that he was visiting some friends named Carr; that, hearing a noise that night in the back yard, he .walked out of Carr’s back door through the back yard into the alley, and was there arrested by the officers. He denied having anything to do with the car or the whisky therein.

The action of the trial court in overruling defendant’s demurrer to the information is assigned as error. We find the information sufficient. It follows that the demurrer was properly overruled.

The next assignment is that the court erred in overruling the defendant’s motion for a continuance on the ground of the absence of a material witness. It appears that the information was filed in September, and the case was called for trial the following January. Obviously the defendant had ample time to prepare for trial, and upon the record we find that the continuance was properly denied.

Error is assigned in the giving and refusing instructions. We have examined the instructions given and those refused, and discover no error. We have examined the numerous other errors assigned, but do not find they are entitled to serious consideration.

Discovering no prejudicial error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ„ concur.


text:
    J. B. REED v. STATE.
    No. 3004.
    Opinion Filed March 22, 1919.
    (179 Pac. 480.)
    APPEAL AND ERROR — Approved Verdict — Review. Where the jury renders a verdict of guilty which is approved hv the trial court, and Hiere is evidence in the record ro sustain rite verdict, it will not he set aside in the absence of prejudicial error.

      Appeal from County Court, Ottawa County; W. C. Barry, Judge.

    J. B. Reed was convicted of violating the prohibitory liquor law', and he appeals.
    Affirmed.

      Vern E. Thompson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Reed, was convicted on a charge that he did have possession of one gallon of alcohol, fifty-six pints of beer, and one-half pint of whisky, with the intention of violating provisions of the prohibitory liquor laws of the state, and his punishment fixed at a fine of $50 and 30 days in jail. From the judgment rendered on the verdict he appeals.

The testimony for the state shows that three deputy sheriffs in serving a search warrant found in defendant’s barn in the town of Commerce the intoxicating liquors alleged, in the information. The defendant .was present when the officers appeared and unlocked the door of the barn on their request, saying that “Anything you find in there is mine.” The beer was found in two sacks concealed beneath the floor of the barn, and there were a large number of empty whisky and beer bottles in and around the barn.

As a witness in his own behalf the defendant testified that he did not own the intoxicating liquors found in the barn, and that the beer was secretly placed under the floor without his knowledge or consent; that a man that was working for him brought the beer to his barn, and he told him that he did not want it in the barn, and when he went back to the barn it had been taken away so far as he knew; that the alcohol was used by a man engaged in painting; and that he had bought the empty beer bottles that were stored at the barn.

W. H. Moore testified that he owned the alcohol, having bought it from a fellow called “Hickory Bill”; that he used the alcohol in mixing paint; that he bought the beer from Hickory Bill’s wife; that Mr. Reed told him not to put the beer in the barn; that he afterwards concealed it under the floor; that he had the beer for his own use; that Hickory Bill and his wife had left the country. ,

The only error assigned worthy of mention is that the evidence is not sufficient to support the verdict. We think the foregoing statement of facts in evidence is sufficient to show that the case was one for the jury. Where the jury finds a verdict of guilty 'which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside in the absence of prejudicial error.

Discovering no prejudicial error in the record, the judgment is affirmed.


author: MATSON, J.

text:
    MONTGOMERY JONES v. STATE.
    No. A-3010.
    Opinion Filed March 22, 1919.
    (179 Pac. 619.)
    1. WITNESSES — C'odefenclant—Competency. As long as a defendant remains charged with a crime, he is a competent witness only at his own request; therefore, when the state introduced a co-defendant as a witness, it was not error to permit the state 'to show that whatever disqualifications might have existed to such witness had been removed, and that such codefendant was competent at that time to testify in behalf of the state against his co-defendant.
    2. WITNESSES — Province of Jury — Credibility of Witnesses. The fury is the sole judge of the credibility of witnesses, and any matter tending to prove that a witness may or may not have an interest in the outcome of the trial is proper to be elicited for the consideration of the jury.
    3. HOMICIDE — Murder in First Degree — Conviction—Statute. Where an information charged a defendant with murder under the first subdivision of section 2313, Rev. Laws 1910, a conviction may be had, if warranted by the evidence, under and by virtue of the other subdivisions of the statute.

      4. SAME — Abandonment of Conspiracy — Liability for Crime. It is too late for one. who voluntarily agrees to enter into a criminal conspiracy to rob -in conjunction with another, whom he knows to be armed with a deadly weapon and intends to use same to accomplish his purpose, to attempt to escape criminal responsibility for the natural results of such an unlawful conspiracy perpetrated by his codefendant, upon the ground that, after he had seen that d-'alli would likely result from said attempted robbery, he abandoned the preconceived purpose by running away from the scene of the tragedy.
    5. SAME — Murder in First Degree — Evidence. Record examined.’ and held, that the defendant had a fair and impartial trial, that the evidence' is fully sufficient, to sustain the verdict r-'udered. and that an intelligent and honest jury could arrive at no other conclusion than that of the guilt of the defendant.

      Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.

    Montgomery Jones was convicted of manslaughter in the first degree, and sentenced to serve a term of 30 years in the penitentiary, and he appeals.
    Judgment affirmed.
    Montgomery Jones, plaintiff in error, was jointly informed against with one Rochester Scott, charged with the murder of one Zealous Wilson, in Okmulgee county, Okla., on or about the 22nd day of January, 1916. The defendants were separately tried; Scott being tried first, convicted of murder, and sentenced to imprisonment for life. Jones was found guilty of manslaughter, and sentenced to imprisonment for 30 years. The circumstances surrounding the killing are substantially as follows:
    Zealous Wilson, the deceased, was a negro porter in a pool hall in the city of Okmulgee, conducted by a man by the name of Jackson, which was evidently a bootlegging joint. Jackson was in the habit of having his whisky shipped to the town of Schulter, on the railroad, six or eight miles south of the city of Okmulgee. The codefend-ant Scott had worked for Jackson, and knew of his habit of having whisky shipped to Schulter. Scott also knew that the negro porter generally took a horse and buggy and went after the whisky, as he (Scott), had ofttimes done. Some two days before the killing, Scott learned that Zealous Wilson was going to Schulter on the night of January 21, 1916, to procure a consignment of whisky for Jackson. Scott conceived the idea of holding up Wilson and relieving him of the whisky at a point on the public road between the town of Schulter and the city of Okmul-gee, about two miles south of the city of Okmulgee, where the dirt road .passed through a trestle on the railroad right of way. Scott indicated his purpose to his codefendant, Montgomery Jones, and Jones agreed to go with him. They were also accompanied by another negro by the name of Albert Williams, who went down as far as the trestle and stayed with the other two parties for 30 or 40 minutes, and afterwards returned to Okmulgee. The night was cold, and Williams said he did not want to be engaged in any shooting scrape; and he returned to Okmulgee after Scott had told him in the presence of Montgomery Jones that there would be some shooting take place, and that, if Wilson did not give up the whisky, he (Scott) intended to kill him.
    Scott, as a witness for the state, denies any intention or purpose on his part to kill Wilson, but says that he shot over his head, and for the purpose of scaring him, so-as to make him run and abandon the buggy load of whisky. Jones" says that he thought there was to be no shooting, that they were simply to yell, “Halt! halt! halt!” at Wilson, and, if he did not run, that he and Scott were then to run themselves. The story told by Jones is very improbable, and bears the earmarks of being fabricated, because it was hardly to be presumed that a man who was desperate enough to take a 45 Colt’s revolver for the purpose of robbing another of whisky would abandon such purpose after having merely commanded his victim to halt.
    It is admitted that Scott at least fired three shots, one of which took effect in the body of Zealous Wilson when he was seated in the buggy, and caused his death. George Wilson, the brother, was with Zealous at the time, and testified that both parties who were under the trestle fired shots at them. It is clear, however, from this record, that it is immaterial, so far as the question of the guilt of Jones is concerned, whether he fired a shot or not. He had full knowledge of what was going to occur beforehand, and voluntarily entered into the scheme to rob Wilson, with the knowledge that Scott was armed, and would use a deadly weapon to accomplish his purpose, if necessary.
    After Wilson was shot, his body fell out of the buggy, and George Wilson jumped out of the buggy and ran away. The horse came on up the road, passing both Scott and Jones. They got together again, and walked back to Okmulgee along the public highway. Near the outskirts of the city they came across a suit case filled with bottles of whisky, which had evidently fallen out of the buggy. This whisky the defendants carried to the home of one Booker, another negro, who was a cousin of Scott’s. They got there about 5 o’clock in the morning, and proceeded to drink freely of the whisky. Scott left, and went to Nance’s rooming house in Okmulgee, where he went to bed, and was arrested about 9 o’clock that day. Jones went to bed at Booker’s. He awoke about 10 o’clock. At 11 o’clock he was informed that Wilson had been killed at the trestle south of town. Booker then told him he wanted him to take that whisky away from his house. Jones immediately gathered.up four quarts of the whisky, about 12 o’clock, and took to his heels. Jones was arrested in Henderson county, Tex., about the 22d day of April following, a period of 90 days after the commission of the homicide. He was immediately returned to Okmulgee, placed in jail’, and afterwards tried and convicted, from which conviction he has appealed to this court.

      Wm. S. Peters and Wallace & Stephens, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is contended that the court erred in permitting the state, in, its direct examination of the witness Rochester Scott, a previously convicted codefendant, to show by said witness that he had theretofore been convicted of murder growing out of this particular transaction, and had been sentenced to serve a term of life imprisonment in the penitentiary therefor. Counsel for defendant-contend that it was error to permit the state to impeach its own witness.

There seems to this court to be a sufficient reason for permitting the state to show, 'by the witness Rochester Scott, his status as an accomplice to the crime. Being a codefendant, had the cause still been pending against him, in other words, if he was still a party defendant to the action, he was a competent witness only at his own request. Section 5881, Rev. Laws 1910. Also said Scott would have been entitled to a discharge from the information before he could have been compelled to be a witness for the state, had the charge still been pending against him. Section 5879, Rev. Laws 1910.

However, having been theretofore convicted, and judgment and sentence having been pronounced against him on said conviction, he thereby became a competent witness, either for the state or his codefendant, and could have been compelled to testify for either party. It was competent, therefore, as we view it, for the county attorney to show by a voir dire examination of the codefendant that at that time said codefendant was a competent witness against the defendant then on trial.

As long as a defendant remains charged with a crime, he is a competent witness only at his own request; therefore, when the state introduced a codefendant as a witness, it was not error to permit the state to show that whatever disqualifications might have existed to such witness had been removed, and that such codefendant was competent at that time to testify in behalf of the state against his co-defendant.

It having been shown 'by the state that the witness Rochester Scott was, by reason of his previous final conviction, a competent witness against his codefendant, the objection urged that it was error to permit the state to impeach its own witness is not applicable, because the state was entitled to show that the codefendant was a competent witness to be used against the defendant on trial, and it was entirely proper to show the lack of interest of said codefendant in the result of the trial as affecting the credibility of the witness, a matter peculiarly within the province of the jury. Had counsel for defendant desired, he could have subjected the codefendant to a cross-examination as to whether he was testifying under any promise of reward or hope thereof, and the fact that his conviction of the crime of murder growing out of this particular transaction was admitted by said codefendant did not tend in any way to prejudice this defendant, for the reason that the codefendant testified to no facts favorable to this de-íendant. From any viewpoint, therefore, this assignment of error is wholly without merit.

It is also contended that the court erred in overruling defendant’s motion made at the conclusion of the state’s case to direct the jury to return a verdict of not guilty, which request for a directed verdict was renewed at the conclusion of the evidence by a requested instruction to that effect. It is advanced in support of this contention, first, that there was a fatal variance between the allegations of the information and the proof on the part of the state. The information charged the defendant with the crime of murder committed with a premeditated design to kill the deceased, Zealous Wilson, which constitutes murder under subdivision 1, sec. 2313, Rev. Laws 1910.

Defendant contends that the proof on the part of the state only supported murder within the definition of subdivision 2, sec. 2313, supra, which provides homicide to be murder “when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” This contention is without merit. In Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, it was held:

“Where an indictment or information charges a defendant with murder under the first subdivision of the statute (Rev. Laws 1910, sec. 2313), a conviction can be had, if warranted by the evidence, under and by virtue of the other subdivisions of the statute.”

It may be noted in .this connection also that the conviction against this defendant was for manslaughter in the first degree, and that there is no contention whatever but that the information is a sufficient charge of murder, and such a one as would include manslaughter in the first degree and support a conviction thereof.

Secondly, it is contended that the defendant “took no part in the killing,” and “it is hard to conceive how one could be held as a coconspirator when the act was done was contrary to, and against the intention, advice, and expressed request of the defendant; for the evidence shows that defendant told said Scott not to .shoot, and when contrary to that demand Scott fired one shot, defendant left him, showing that he did not aid, abet, or even consent to the shooting.”

Only the evidence of the defendant will support any such conclusion. It is too late for one who voluntarily agrees to enter into a criminal conspiracy to rob, in conjunction with another whom he knows to be armed with a deadly weapon and intends to use same to accomplish his purpose, to attempt to escape criminal responsibility for the natural results of such an unlawful conspiracy perpetrated by his codefendant, upon the ground that after he had seen that death was likely to result, he attempted to abandon the preconceived purpose by running away from the scene of the tragedy.

One who voluntarily enters into a conspiracy to rob with another, whom he knows intends to use a deadly weapon for that purpose, and aids and abets such other person in carrying out said conspiracy up until the shooting commences as part of the act of robbing, and then flees, is in no position to claim that the jury was not justified in holding him criminally responsible for a death that was the direct result of such shooting.

If parties defendant could escape criminal responsibility upon such a specious defense as this, then there would be very little likelihood of convicting any other than the person who fired the fatal shot in homicide cases, although the crime may have been the result of a conspiracy on the part of numerous others also.

Counsel for defendant have requested the court, in view of the fact that the defendant prosecutes this appeal as a poor person, and also because of the heavy punishment imposed, to carefully examine the record for errors not urged in the brief filed. The court has, in response to said request, taken particular pains to carefully examine the entire record in connection with every ground urged in the motion for a new trial, and it is clear that a fair and impartial trial was afforded defendant in this case. Also it may be here said that the evidence in the case is sufficient to have authorized the jury to return a murder verdict, and there is nothing in the record to indicate that an intelligent and honest jury would arrive at any other conclusion than that of the guilt of the defendant were a second trial to be had.

For the reasons stated, the judgment of conviction is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    BILLIE McNEAL v. STATE.
    No. 3096.
    Opinion Filed March 26, 1919.
    (179 Pac. 479.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. In a prosecution for having possession of intoxicating liquor with intent to sell the same, the evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.
    2. ' EVIDENCE — Guilt of Third Party. A defendant on trial on a criminal charge cannot introduce evidence to show the jury that some other person has confessed that he committed the crime and that defendant had nothing to do therewith.

      Appeal from County Court, Tulsa County; . H. L. Standeven, Judge.

    Billie McNeal was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      Fred W. Kopplin, for plaintiff in error
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Billie McNeal, was convicted in the county court of Tulsa county upon a charge that he did unlawfully have in his possession 59 quarts of whisky, nine half pints of whisky, eight quarts of gin, and one quart of wine, with the intention to sell the same,' and his punishment was fixed at confinement for 30 days in the county jail and to pay a fine of $50. From the judgment rendered on the verdict, he appeals.

The evidence shows that defendant was conducting a rooming house, known as the Oakland Hotel, in the city of Tulsa, which was raided by three peace officers, and that they found in room 18 a plant under the floor which contained intoxicating liquors described in the information; that the room door had on it a Yale lock, a case of empty whisky bottles was found in another room, and in the hallway they picked up two grips filled with whisky bottle wrappers; that at a former time, while said defendant was conducting said place, two trunks full of whisky .were seized while being unloaded from a dray into this hotel; and that a party was seen to go out of the hotel with two bottles of whisky, which he broke when followed by officers.

There was also evidence tending to show that the hotel had the reputation of being a place where intoxicating liquors were received and kept for sale.

As a witness in his own behalf, defendant stated that he was present when the officers raided his hotel; that two of his guests, Morrison brothers, occupied room 18 off and on for several weeks; that they were wording in the oil' fields and would come and go and had left the hotel shortly before the officers appeared with a search warrant, and had absconded; that he did not know that the intoxicating liquor was concealed in room 18, and knew nothing about the empty whisky bottles or the grips containing the whisky,wrappers found in the hallway.

On the part of the defendant, several witnesses testified that they had lived and boarded at the Oakland Hotel, and that the place had a good reputation.

Cy Rogers testified that he lived at the Oakland Hotel, and knew the party that went by the name of Morrison, who he had learned occupied room 18; that, after the raid on the Oakland Hotel, he had a conversation with said Morrison. “What did he say?” The state’s objection as incompetent was' sustained. Whereupon defendant offered to prove by the witness Rogers that said Morrison told witness that he had the liquor in room 18 that was taken by the officers; that he had intended to sell said whisky in the oil fields.

George Vascom testified that the month following the raid he met Charley Morrison in Eldorado, Kan., and had a conversation there with him. The objection of the state as to what Morrison said having been sustained, the same offer of proof was made as to what the witness would testify to, except time and place.

The action of the trial court in excluding the testimony offered by defendant for the purpose of showing that said Morrison had admitted that he was the owner of the intoxicating liquors found in room 18 is assigned as error.

The ruling of the court in excluding as hearsay the testimony so ¿offered was in accordance with the uniform holding of this court. In Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, it is held that—

“A defendant who is being tried on a criminal charge is not entitled to introducé proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith and was not concerned therein.”

And see Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414.

It is a sufficient answer to the various other alleged errors to say that the information is sufficient, and the objections made by defendant to the rulings of the court on the admission and rejection of testimony were properly overruled, and we find' that the testimony showing or tending to show possession by the defendant of intoxicating liquors as alleged and the intent to sell the same is sufficient to support the verdict and judgment of conviction. Discovering no prejudicial error in the record, the judgment is affirmed. Mandate forthwith.


text:
    MRS. J. W. DIX v. STATE.
    No. A-2889.
    Opinion Filed April 1, 1919.
    (179 Pac. 624.)
    INDICTMENT AND INFORMATION — Reference to Accused’s Preliminary Examination — Surplusage. Reference to the fact that the accused had had a preliminary examination should not be incorporated in an information in a felony case; but, if the information does allege such jurisdictional matter, the allegation is wholly irrelevant, and will be treated as surplusage.
    SAME — Information—Defects in Form — Demurrer. Defects in the form of an information, or mere grammatical errors, do not tend to prejudice the' substantial rights of the defendant, and present no ground for a demurrer to an information.
    WITNESSES — Cross-Examination—Discharged Codefendant. A person charged with the commission of a crime in this state is a competent witness only at his own request. Section 21, art. 2, of the Constitution, among other things, provides: “No person shall be compelled to give evidence which will tend to incriminate him.'’ In this case the defendant offered her codef»nTint. Mrs. Mossio Baustert, as a witness in defeldant’s behalf, but Mrs. Baustert refused to testify on the ground that her evidence might incriminate her, which objection was sustained by the trial court and the witness excused. Later, the state offered Mrs. Baustert as a witness in rebuttal to impeach some statements attributed to her by the defendant.' On motion of Mrs. Baustert's counsel, the case against her was dismissed by the state in order to use her as a witness against her codefendant, After the state had examined Mrs. Baustert on matters solely in rebuttal of the testimony of the defendant, counsel for the defendant attempted to subject Mrs. Baustert to a thorough cross-examination into all the details of the crime. The trial court sustained the state’s objection to this line of examination on the ground that it was not proper cross-examination. Held, the trial court’s ruling on the objection was correct.
    WITNESSES — Evidence—Testimony of Codefendant. The state, having dismissed its prosecution against Mrs. Baustert, thereby removed the disqualification that otherwise existed against her being a qualified witness in behalf of her codefendant, Mrs. Dix, on a separate trial. After the case had been dismissed against Mrs. Baustert,-and the court had sustained the state’s objection to the defendant fully cross-examining Mrs. Baustert into her knowledge of all the details of the crime on the ground that it was improper cross-examination, counsel for the defendant should have renewed their request to use the codefendant, Mrs. Baustert, as a witness for and in behalf of Mrs. Dix, as it was then discretionary with the trial court to permit the defendant to reopen her case for the purpose of using Mrs. Baustert as a witness in her behalf.

      3. APPEAL AND ERROR — Conviction—Reversal—Testimony of Co-defendant. A judgment of conviction will not be reversed on the ground that the defendant should have an opportunity to use her. codefendant as a witness in her behalf, upless it appears that snch codefendant has become a eompetoiir witness for the defendant subsequent to the trial in which the defendant’s conviction is had, and showing is also made that tlie testimony of the code-fendant to be given on the retrial would be such as likely to change the result reached in the former trial.

      Appeal from District Court, Canadian County; George W. Clark, Judge.

    Mrs. J. W. Dix was convicted of the crime of murder, and sentenced to serve a term of life imprisonment in the state penitentiary, and she appeals.
    Judgment affirmed.
    The defendant, Mrs. J. W. Dix, and Mrs. Mossie Baustert were' jointly informed against in the district court of Canadian county, Okla., charged with the murder of the latter’s husband, Henry Baustert. A severance was granted, and‘the state elected to try this defendant first.
    At the time of the homicide, which occurred on or about the 27th day of February, 1916, and for several years prior thereto, the defendant, Mrs. J. W. Dix, had been operating a boarding and rooming house, which was located in the city of El Reno, Okla. Mrs. Mossie Baustert was a niece of this defendant.
    The Bausterts had been married about four years at the time of the homicide, and were living in the town of Okarche, Okla., where he was engaged in 'the poultry business. They had one child, a little girl 'about two years old, who spent considerable time in the home of this defendant.
    About 10 o’clock on the evening of the 26th of February, the Bausterts came from Okarche to the home of the defendant, to visit for a day or two, and take their daughter, who had been visiting the defendant for about' a week, back home with them. After their arrival they talked for a while, and about 12 o’clock, the defendant arranged the room which the deceased and his wife were to occupy that night. This room was the one ordinarily occupied by the defendant, and contained a full-sized bed, in addition to a dresser and some other furniture. The defendant, however, arranged a cot in that room for the deceased to sleep o#i, as it had been the custom of the deceased and his wife not to sleep together since the birth of their child. This cot was placed so that the head of the sleeper was almost directly in front of the door entering the room, the cot being just far enough from the wall in which the door was located to allow the door to open. The defendant said she would occupy the lounge, which was in a room across the hall from the room in which the deceased slept, and when they retired a dim light was left burning in the room in which deceased and his wife were sleeping.
    About 1 o’clock on the morning of the 27th, the defendant awakened the roomers on the second floor of the house, and asked if the water heater had blown up again. She went up stairs to investigate, and then came back down, and called to the roomers to come down; that “something dreadful has happened.” The roomers came down, and found the deceased lying on the cot with a bullet wound in his head, from the effects of which, after having been removed to a hospital in the city of El Reno, he died about 4:30 o’clock that morning.

      When the deceased was found wounded, he was lying partially on his right side, with his face turned toward the-door. The bullet had entered his head just above the ear. on the left side, and lodged just above and a little back of the right ear.
    As soon as the alarm was given, the officers were called, and between that time and daylight several thorough searches were made of the premises, but no firearms were found. About 9 o’clock, however, a justice of the peace discovered an old rusty revolver in a closet of the room in which the homicide occurred, but it was evident that it had not been discharged recently.
    On the day following, after the defendant had been removed to the county jail, she cautioned the girl who was working for her at that time not to use the lard in a particular can, because it was too hard. The defendant was not content with telling the hired girl once not to use that particular lard, but repeated that it was too hard to use, and that she would have some more sent out. It was shown that the defendant and this girl had been using this-lard for ten days prior thereto, and had found nothing wrong with it. That same morning, however, a neighbor lady had come over to the Dix house to assist the hired girl in the cooking, and when she went to get some of this lard to use in making pies, she found that there was a layer of dark colored lard on top. She scraped this off in order to obtain white lard, and in so doing she struck something hard and black. Thinking it was a butcher knife, she paid no more attention to it at that time. On the following Wednesday, however, this neighbor lady and the hired girl made more investigations, and found that a revolver had been conceáled in the lard. Upon an examination by the officers, it was found that the revolver was •of the same caliber as the bullet that was extracted from the deceased’s head, that one chamber had been discharged recently, and that there was some brown sugar sticking to parts of the revolver. Upon further search, the officers found a sack of brown sugar in the room adjoining the room in which the defendant claimed to have slept on the fatal night, and this sugar apparently corresponded with that found on the revolver. This revolver was identified by one of the roomers at the Dix house as one owned by him, but which had been missing for about a year. Such witness testified that he was staying at the Dix house at the time this revolver disappeared.
    It also developed that the defendant had reared her niece, Mrs. Mossie Baustert, the wife of the deceased, from the time she was about six years old, that the defendant had been opposed to her marriage to the deceased, that the defendant had frequently expressed her dislike for the deceased, and that on the Friday before the homicide- occurred early Sunday morning the defendant told a witness that she was going to send for the wife of the deceased, and if the deceased came, defendant and Alice, who was the little daughter of the deceased, were planning to get rid of him; that defendant had at least once endeavored to get the wife of the deceased tó separate from him. It also appeared that immediately after the homicide the defendant advised the wife of the deceased that she could come and live with her as she had always done, and that the defendant discussed what furniture the wife of the deceased should sell and what she should bring with her.
    None of the witnesses heard the noise of the fatal shot except the defendant, and after the alarm was given the defendant’s hair was seen to be done up in the same manner that she - was accustomed to wear it during the day. The lounge, too, on which defendant claimed to have slept was discovered to haye a pile of magazines on it, which had been there, the day before, and which had not been removed.
    It cannot be doubted that the revolver found in the can of lard was the weapon used to kill the deceased. The lard in that can was the lard which defendant had been using for domestic purposes every, day. It was apparent that lard had been melted and poured over the top of the lard in which the revolver was buried for the purpose of giving the appearance that the lard in the can had not been in use. The defendant’s anxiety to prevent the discovery of the concealed revolver by warning the hired girl not to use the lard from this can, that she would send other lard for cooking purposes, together with the fact that the revolver found concealed in the lard was of the-same caliber as the bullet found in the head of the deceased, and the additional facts that the revolver found had been recently discharged, together with- the evidence- of brown sugar, which was found in a sack in the room next to where the defendant was .supposed to have slept, and which brown sugar she had been using, and the defendant’s dislike for the deceased and her threats against him made shortly before the homicide, point unerringly to the guilt of this defendant of the crime charged. That she committed the crime directly, or aided and abetted another in its commission, will not be doubted by one who has read the record from an impartial viewpoint.

      Babcock <6 Trevathan and Pruiett, Sniggs & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., and- E. F. Maley, Co. Atty., 'for the State.
   MATSON, J.

(after stating the facts as above). It is-first alleged that the court erred in failing to strike from the information the allegation that the defendant had waived a preliminary examination. Reference to a preliminary examination should not have been incorporated in the information, and the trial court should have sustained the motion to strike the same, as it forms no material part of the charge against the accused. The .fact that the accused has had a preliminary examination or has waived same is a matter prerequisite to the jurisdiction of the trial court in felony cases; but, if the information does allege such jurisdictional matter, the allegation is wholly irrelevant, and will be treated as surplusage. Davis v. State, 4 Okla. Cr. 508, 113 Pac. 220; Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937. The alleged error, therefore, is technical, and cannot be considered as in any way prejudicing the substantial rights of the defendant on the merits.

Also the refusal of the trial court to sustain a demurrer to the information because of improper punctuation is purely technical. An examination of the information shows that it contains a good charge for murder. Defects in the form of an information, or mere grammatical errors, do not tend to prejudice the substantial rights of the defendant, and present no ground for a demurrer to an information. Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003.

The conclusion is reached, therefore, that the grounds of alleged error, both in the failure of the trial court to strike redundant matter from the information and failure to sustain the demurrer thereto, are without merit.

The second contention of defendant is that the court erred in not permitting her to use the codefendant, Mrs. Mossie Baustert, as a witness in her behalf. The record shows that this defendant and Mrs. Mossie Baustert were jointly charged; that defendant demanded a severance, and her trial was held first. There had been no disposition of the case against Mrs. Mossie Baustert until after the defendant had closed her case. The defendant attempted to use Mrs. Mossie Baustert as a witness in her behalf, and the said Mrs. Mossie Baustert, being a codefendant and charged with the same offense, refused to testify. The court sustained her in such refusal. This was not error. Section 5881, Rev. Laws 1910, sustains the court’s action, and is as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

Section 21, art. 2 of the Constitution, in part provides:

“No person shall be compelled to give evidence which will tend to incriminate him except as in this Constitution specifically provided. * * *”

Also in the case of John Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58, this court held:

“Under section 5881, Rev. Laws 1910, providing that, in criminal proceedings, ‘the person charged shall at his own request, but not otherwise, be a competent witness,’ a codefendant is competent as a witness for all purposes, where he requests to. be a fitness in his own behalf. It does not matter whether his testimony is for or against himself, or for or against his codefendant; the only limitation in the statute is that he cannot be compelled to testify either for himself, his codefendant, or for the state while he is a party in the case.”

It developed from 'defendant’s testimony on the trial that it would be necessary for the state to use the co-defendant, Mrs. Mossie Baustert, in rebuttal to impeach, some of the statements attributed to her by the defendant. This was done, and, on motion of Mrs. Baustert’s counsel, the state dismissed the case against her in order to use her as a witness to impeach her codefendant and defendant attempted to subject her to cross-examination on matters not properly the subject of the rebuttal examination. The court sustained an objection by the state to this line of examination, the record being as follows:

“Q. You say, Mrs. Baustert, you didn’t use the language of ‘that awful disease?’ A. No; I didn’t.
“Q. At the time of this unfortunate tragedy was your husband afflicted with a venereal disease?
“By Mr. Phelps. Objected to as incompetent, irrelevant, and immaterial and not proper cross-examination.
“By Mr. Pruiett: If the court please, this morning we couldn’t use this codefendant when I asked her this, question, for the reason that they objected, and she claimed her constitutional right.
By Mr. Roberson: We objected to that statement, and then we withdrew our objection this morning, and insisted, that the question be asked.
“By Mr. Pruiett: I understand, but they objected, and she claimed her constitutional right. Now, your honor, this testimony is competent on cross-examination for the reason, the testimony of the witness they are seeking to impeach is that she used the words, ‘the awful disease.’ Now, if this witness knows that he had this disease, isn’t it competent to go to these jurors, impeaching her own credibility as to whether or not she was likely to have used that expression?
“By Mr. Phelps: We renew our objection to the speech of the attorney for the reason it is made for the purpose of influencing the jury.
“By the Court: I don’t think it is competent. The court has some doubt as to the correctness of its ruling as to some of the evidence. I think the question was probably competent at that time as bearing upon the fact that on that night the witness and her husband did not occupy the same bed, there having been evidence introduced prior to that time to the effect that it had been their custom to occupy the same bed until, I think, the child was about two years old. But this is cross-examination of the witness in rebuttal, and nothing has been asked this witness that would call for this question or an answer to it. The objection will be sustained.
“By Mr. Pruiett: To which the defendant excepts.”

The trial court’s ruling on the objection to the question asked was without error.

There was no request made by counsel for the defendant for permission to use the witness at this time as a witness for the defendant; neither is there any showing made of what the testimony of Mrs. Baustert would have been had the trial court permitted a full cross-examination into all the facts and circumstances within the knowledge of the witness, surrounding the killing of Baustert.

Counsel contend that Mrs. Baustert having refused to testify in behalf of this defendant because her answers to questions might tend to incriminate her shows conclusively that she (Mrs. Baustert) was the guilty party, and for that reason, if for no other, the court erred in not permitting the fullest possible cross-examination. In this appeal we are not concerned with the question of the guilt or innocence of Mrs. Baustert, except in so far as her guilt or innocence may have some bearing on the question of the guilt or innocence of Mrs. Dix.

It cannot be presumed that Mrs. Baustert alone was guilty of the crime, and that her testimony would have cleared Mrs. Dix of any criminal responsibility for the murder of Baustert. Was it error to limit counsel for defendant in cross-examination of this witness to matters strictly rebuttal in the absence of some showing that her testimony would tend to exonerate Mrs. Dix? We think not. It would be foolish, in the face of the overwhelming evidence in this record tending to establish the guilt of Mrs. Dix, to reverse this judgment in order to allow Mrs. Baustert to testify as a witness for Mrs. Dix in a subsequent trial, and the result be that Mrs. Baustert would testify to facts that strengthen the state’s case against Mrs. Dix.

Before this court would be justified in reversing this judgment of conviction on the ground that defendant should have an opportunity to use her codefendant as a witness in her behalf, there ought to be some showing that the testimony of Mrs. Baustert, given on the subsequent trial, would be such as likely to change the result reached by the jury on this trial.

It is not enough that evidence may be produced on the subsequent trial to fasten the guilt on Mrs. Baustert, but a showing should be made that reasonably tends to the conclusion that Mrs. Dix has been unjustly convicted. Both Mrs. Dix and Mrs. Baustert may have been guilty of this affense. The guilt of neither depends on the innocence of the other. Either had equal opportunity with the other to commit the deed, and the court is satisfied from the evidence in this record that both were likely concerned in its commission.

Before the taking of evidence had been concluded in this trial, the state dismissed its prosecution against Mrs. Baustert. This action removed the disqualification that otherwise existed against her being a qualified witness in behalf of her codefendant, Mrs. Dix. After the dismissal of the state’s case against Mrs. Baustert, there was no request interposed by Mrs. Dix to-use Mrs. Baustert as a witness in her own behalf, although she was available for that purpose before the trial had been concluded, and it was discretionary with the trial court to permit the defendant to reopen her case for.the purpose of using Mrs. Baustert as a witness had she so desired. Harvey v. Territory, 11 Okla. 156, 65 Pac. 837; Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; George v. U. S., 1 Okla. Cr. 307, 316, 97 Pac. 1052, 100 Pac. 46; Ferrell v. State, 45 Fla. 26, 34 South. 220; Fordham v. State, 125 Ga. 791, 54 S. E. 694; Frazier v. State, 112 Ga. 869, 38 S. E. 349.

How, then, can this defendant, with such a display of lack of diligence on her part to procure the evidence of Mrs. Baustert, expect this court to reverse a judgment of conviction against her based on evidence which clearly establishes her guilt for the sole purpose of permitting that to be done which she already had the opportunity to do. We are not familiar with a decision of an appellate court to the effect that, without some showing that the evidence of an incompetent witness that has since the former trial become competent, would be material to the defense interposed and likely to change the result, a new trial will be granted, merely for the purpose of obtaining the testimony of such witness.

Even the cases that hold that a new trial will be granted where there is a showing that new evidence material to the defense can be obtained from a witness.who was incompetent at the time the cáse was tried are cases wherein the witness has become competent since 'the former trial and not during its progress. We know of no case that holds that where a witness became competent during the progress of the trial and before the case was concluded, and this fact became known to the defendant, and no request was then made to use such witness on that trial, a new trial would be granted to give defendant another opportunity to use such witness in his behalf. Certainly if this was an application for a new trial on the ground of newly discovered evidence, the trial court should have overruled the motion because of lack of diligence. In the case of State v. Drake, 11 Or. 396, 4 Pac. 1204, it is held:

“A motion for a new trial on the ground that the defendant desires the evidence of an acquitted codefendant cannot be sustained on the bare affidavit of the defendant, unsupported by an affidavit of the acquitted codefendant, and without allegations that, the latter can prove facts of that character which would be considered material for his defense, or which would render a different result probable in a retrial.”

We find no prejudicial error in the ruling of the trial court in refusing to permit a cross-examination of the witness Mrs. Baustert beyond the scope of her testimony given in rebuttal. .Had defendant desired to use Mrs. Baustert as a witness in her own behalf, her intention so to do should have been clearly indicated after the state had dismissed the prosecution against Mrs. Baustert. The question would then have been squarely put to the trial court as a matter of discretion as to whether Mrs. Baustert should have been permitted to testify in behalf of Mrs. Dix. It is apparent that the cases cited by counsel, to the effect that a new trial should be granted, “if after a defendant in a criminal case is tried and convicted his co-defendant is tried and acquitted, the incompetency of the latter as a witness thus being removed, his testimony constitutes newly discovered evidence which warrants granting a new trial to the convicted defendant, provided such testimony is of a character as likely to change the result” (Gill v. State, 56 Tex. Cr. R. 202, 119 S. W. 684, 17 Ann. Cas. 1164; Helm v. State, 20 Tex. App. 41), are not in point, because in this case the codefendant became a competent witness for the defendant during the progress of the trial and not afterwards, and there is no showing that the evidence sought would be such as likely to change the result. The defendant should have made some effort to use Mrs. Baustert as a witness during the trial, and not wait until a conviction has been had, and then for the first time assert that she should have the advantage of the testimony of her codefendant, and for that reason a new trial should be granted.

We find no reversible error in the record, and the judgment is therefore affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    A. B. MORRIS v. STATE.
    No. 3136.
    Opinion Filed April 4, 1919.
    (179 Pac. 779.)
    INTOXICATING LIQUORS — Unlawful Possession with Intent to Sell— Sufficiency of Evidence. The evidence in a prosecution for the possession of intoxicating liquors with intent to sell the same considered, and held sufficient to sustain the conviction, and that no material error was committed.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    A. B. Morris was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed and remanded, with direction.

      D. M. Martmdale, for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, A. B. Morris, was tried and convicted in the county court'of Tulsa county on an information charging that on October 21, 1916, in said county, he did have in his possession 49 quarts of whisky, 95 half pints of whisky, and 113 pints of beer with intent to sell the same. His punishment was fixed at confine-ment in the county jail for 30 days and to pay a fine of $500. From the judgment rendered on the verdict he appealed.

The testimony of three witnesses for the state show that, as peace officers, they raided the defendant’s place, and found in an ice box 41 bottles of Schlitz beer, quart bottle three-fourths full of Patterson whisky, quart bottle three-fourths full of Gordon gin, three full quarts of gin, a bottle of wine and a bottle of vermuth, a cut glass decanter, and six glasses containing traces of whisky, and also a cash register containing $112 in money and two $3 checks. In addition to this they found in the barn concealed in the hay 18 quarts of Patterson whisky, nine quarts of Four Roses, 22 quarts of Canadian Club whisky, 47 half pints of Patterson, and 48 half pints of Mattingly and Moore whisky, 13 quarts of gin, and 113 pints of Schlitz beer. There was also some champagne found in a secret closet under a stairway in the house.

No testimony was offered on the part of the defendant.

A careful examination of the record discloses no material error. The judgment appealed from is therefore affirmed, and the cause remanded to the county court of Tulsa county, with direction to enforce the judgment and sentence.

ARMSTRONG and MATSON, JJ., concur.