text:
    STEVE WELCH v. STATE.
    No. A-10265.
    Feb. 10, 1944.
    (146 P. 2d 141.)

      Earl E. James, of Oklahoma City, Walter Billingsley, of Wewoka, and David Tant, of Oklahoma City, for plaintiff in error.
    Ran dell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., Homer Melton, Co. Atty., and Edward H. Brady, both of Yinita, for defendant in error.
   BAREFOOT, J.

Defendant, Steve Welch, was charged in the district court of Craig county with the crime of obtaining property by false pretenses, was tried, convicted and sentenced to serve a term of five years in the State Penitentiary, and to pay a fine of $500, and has appealed.

The propositions for reversal of this case may be considered together. They are that the court erred in refusing to sustain the demurrer to the information; the demurrer to the evidence; and that the court failed to properly instruct the jury.

The facts in the case are not disputed. The evidence was presented by the state, and the defendant did not testify, and did not present any witnesses.

The facts were: that prosecuting witness, Rand Flanders, age 31 years, was a resident of Craig county, Oklahoma. He had been a farmer, but had retired in 1937, and worked on construction jobs at different times thereafter. In October, 1940, he met Emmett Walton and Tom James about four miles north of Vinita, in Craig county, after dark. They approached Mm and asked him if he had some money. On November 2, 1940, he met Walton and James in Vinita, got in the car with them and they drove out east of Vinita about a mile, and at that time Tom James pulled out a five dollar bill and said: “Here is one of the five dollar bills we could make — we made that.” They then drove to town, and let the witness out of the automobile at the bank across from the city hall. Before they left him, they told him that they could not do that themselves, but they had a friend who could, and they would be back in two or three days. Later James and Walton went to his home, and he went with them m Hum-ear to a place near Chelsea, in Rogers county, and went into a cabin about a mile from town, where Emmett Walton introduced him to the defendant, Steve Welch, who was introduced as Mac Miller. Welch illustrated what he could do towards raising bills. He put them in chemicals and cleaned or bleached the one dollar bills. He then placed what the witness thought was a “cleaned” one dollar bill on a piece of glass that looked like a piece of windshield, and. lifted the five dollar bill out of the chemicals and placed it on the cleaned bill, and put another bill or paper over it, and rolled it with some kind of a roller, and witness thought they had transferred'the denomination of the larger bill on one side of the paper. They did not permit him to make much of an examination of what they had done. It was also testified that when they left, a woman came out to clean the cabin, and defendant told James to tell her not to clean it, explaining that he did not want her to smell the chemicals.

They then went back to Vinita in Craig county. When they got to town, Walton and James wanted some money, and the defendant wanted some for a casing. On the next day, November 3, 1940, Walton and James went to the home of the prosecuting witness, Rand Flanders, and he went with them north of Vinita and they “ran on to” the defendant, Steve Welch. He got in the car with them, and defendant said: “Rand, we can’t only change this money from a one to a five, but we Can change one to five, to ten, to twenty, to fifty and to a hundred; and we will give you five hundred dollars for the use of your money at Joplin.” Defendant told the witness that he could raise the denominations of the bills, and witness believed his statements.

On the next day, November 4, 1940, Emmett Walton came back and wanted to take the money and go to Joplin that night. Prior to going to Joplin, the witness testified that he gave the defendant, Steve Welch, Emmett Walton and Tom James the sum of $105 or $106 in Craig county, a part of said money to be used in getting one dollar bills to raise, and a part to buy new casings for defendant’s car.

According to the agreement, the witness went to Joplin, Mo., on November 4, .1940, and went to a hotel where he met James, and they went up to the room of the defendant and James. The prosecuting witness then turned over to defendant $3,000 in bills, and the defendant agreed to return to him the $3,000, and an additional $500 for the use of the money. The prosecuting witness’ exact testimony as to this transaction was as follows:

"Q. Now, Mr. Flanders, did you see Steve Welch subsequent to this time? A. Yes, sir, saw him in jail up here, and in Joplin, too. Q. Saw him in Joplin and in jail? A. Yes, sir. Q. Did you have a talk with him? A; Yes, sir. Q. What did he tell you, Steve Welch? A. Just went in the hotel and met James, and I went and got my room and weut up, and directly T got a call from James and he come up to my room, and we took the money and went to their room. Q. Whose room? A. Steve Welch and Tom James’ room, on the seventh floor, and 45 room, and I turned the money over to him. Q. How much money was that? A. $3,000, and he was to give me the three thousand back and $500 for the use. of my money. Q. What about the, money that was used — how much Avas it to get those bills cleaned? Mr. James: We object, if the court please— Witness (interrupting) $45. Mr. James (continuing) for the reason that the charge here is obtaining $3,000, and he testified that he gave the full $3,000 in Joplin, Mo., and proof of any other transaction wouldn’t be evidence in this case, and wouldn’t tend to prove or disprove any issue in this case. The Court: Overruled. The jury may consider the dealings and transactions had between the prosecuting witness and the defendant for whatever light it may throw on the transaction charged in the information. Go ahead. Mr. James: May I ask a question, if the court please, whether or not the hundred dollars was to be used only as expenses, and not as a part of the money charged in this case. The Court: Consider it for that purpose at this time. All right, proceed. A. And then he went out later and came back, and Steve was going to get something to eat, and T sure thought he was going to bring those bills to my room. Mr. James: If the court please, we object to the voluntary statement of the witness. The Court: Go ahead. Answer the question of the county attorney. (To the Reporter) Read him the question. (At this time the question is duly read by the reporter.) The Court: Overruled. Answer the question. A. I did give it to him.”

And during the cross-examination, the following:

“Q. You did give the $3,000 up there? A. Yes, sir. Q. I mean, you gave him the $3,000. And for that $3,000 you were to get your money back plus some more? A. Sir? Q. For that $3,000 you were to get your money back and some more? A. I was to get my money back that night, and later T was to get $500. Q. And they told you — promised you, that they would pay it to you in a future — in the future some time? A. No, I was to get the $3,000 back that night — not no future to it. Q. But it was some time later that you was to get it back? A. Well, in 30 minutes, something like that, I was to get it back. Q. In 30 or 40 minutes later. A. I would say that night. It wasn’t no four or five days later. Q. And $500 was to be your profit for entering into this arrangement to counterfeit money? A. What was to be my part? Q. Your $3,000 back, plus the $500 profit? A. I was to get my money back, and five hundred for the use of my money. Q. And that was to be your profit, helping them to counterfeit it? A. I wasn’t helping them. Q. You furnished a part of the supplies? A. A part of it. Q. And he just walked off and left with that three thousand? .A. He did.”

There was also evidence, offered by the state, that when the money was turned over to the defendant, he departed and never returned to deliver the $3,000 or the $500, as promised. This amount was a total loss and had never been recovered. And that he reported this to the sheriff of Rogers county, and defendant was arrested and charges filed as above indicated.

There was offered in evidence a check to show that prosecuting witness had drawn $3,000 from the First National Bank of Vinita on November 4,1940, the day he went to Joplin, tie testified that this money had been acquired from the sale of cattle and work he had done after retiring from the farm, in 1937.

The information charged defendant with obtaining property by false pretenses. It charged that the amount obtained was $3,000, Avhich Avas the amount paid in Joplin, Missouri, and no mention is made in the information of the $105 or $108 paid by the prosecuting witness in Craig county, Oklahoma.

The statute under Avhich defendant was charged and tried was Tit. 21 O. S. A. 1941 § 1541, which is as follows:

“Every person Avho, with intent to cheat and defraud, shall obtain * * * from any person, * * * any money, property, or valuable thing, of the value of Twenty ($20.00) Dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense * * * shall be guilty of a misdemeanor * * *. If the value of the property, money or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment. * * *”

It is contended by defendant that, admitting all the facts proven by the state and all of the inferences to be deducted therefrom, they are insufficient to sustain the judgment and sentence pronounced in this case, for the reason:

First: It is not shown or alleged that the defendant made a false statement of a past event, or of an existing fact or event.

Second: If the evidence proved the defendant guilty of an offense it was one materially different from that charged and of which he was convicted.

As to the second proposition, the contention is' that he was guilty of larceny by fraud, and not of obtaining property by false pretenses. To support this contention, counsel for defendant cite the following cases from this court: Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; Helsey v. State, 18 Okla. Cr. 98, 193 P. 50 17 A. L. R. 197; Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525; Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712; Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95; and Hagan v. State, 76 Okla. Cr. 127, 134 P. 2d 1042. Reference will hereinafter be made to these cases.

Many of the cases cited by the defendant and by the state have reference to statutes upon false pretenses which are different from the statute under which defendant is charged. This is especially true as to the first proposition urged by defendant. They have reference to the construction of statute similar to Tit. 21, O. S. A. 1941 § 1542, which is as follows:

“Every person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature- of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

But as stated above, defendant is here charged and tried under section 1541 above quoted. Many of the authorities cited are under statutes similar to our section 1541. We have examined not only the cases cited but have made an examination of many other cases and text books bearing upon the issues raised in this case. We have done this for the reason that the evidence reveals that the prosecuting witness has been defrauded of his money, $8,000, by the defendant and his associates, and if this case is to be reversed it is by reason of the harsh terms of the law. If we could upon our oaths do that which we would like to do, taking into consideration the facts as they here exist, we would unhesitatingly affirm this judgment, and let this defendant receive the punishment he so justly deserves. But from an examination of the authorities, we find that they are in universal accord in sustaining the contention of the defendant that if he was guilty of any crime it was larceny by fraud, and not that of obtaining money under false pretenses. We have in this state a statute which makes larceny by fraud a crime. It is Tit. 21, O. S. A. 1941 § 1701, and is as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

This statute has been construed in this state many times. (See cases hereafter cited.)

Defendant’s first proposition that in making a false pretense the pretense must be a representation as to an existing fact or past event, and not as to something to take place in the future, is a true statement of the law, and this principle has been recognized by this court in many decisions and by all texts and other courts. The general rule is stated in 22 Am. Jur. p. 452, sec. 14, as follows:

“It is a well-established rule of criminal law that a false pretense or representation to be indictable must be an untrue statement of a past or an existing fact. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within false pretense statutes, even though they induce the party defrauded to part with his property. The distinction is not based on any difference in degrees of moral turpitude between the two sorts of scoundrelism, but upon the supposed necessity of limiting in some way the broad signification of the words of the statute. Generally speaking, the obtaining of a loan of money or property under a promise to repay or return it without other representation although there is actually no intention to repay it does not constitute the crime of obtaining money by false pretenses.”

The application of the facts to each individual case has often caused different constructions to be placed upon statutes of very similar import. It is contended by the state in the instant case that many of the representations made by the defendant had reference to past events and were in reality representations of existing facts; it being contended that the defendant made the false representation that he had in the past done similar things and at that very moment had the ability and the means to again accomplish the act. If this were the only proposition relied upon in this case, we would be inclined to go a long way in sustaining this contention. This would be especially true if defendant had been charged and tried under section 1542, and not under section 1541 of the statutes, supra.

The state cites a number of Kansas cases, and one case from this court upon this proposition: State v. Briggs, 74 Kan. 377, 86 P. 447, 7 L. R. A., N. S., 278, 10 Ann. Cas. 904; State v. Cowdin, 28 Kan. 269; State v. Gordon, 56 Kan. 64, 42 P. 346; State v. Beezley, 119 Kan. 300, 239 P. 998; Smith v. State, 7 Okla. Cr. 136, 122 P. 732.

These cases to a great extent uphold the contention that the false representation as to a past event or existing situation, where accompanied by future promises, does not relieve the defendant to take the criminal character from the false pretenses as to existing or past facts.

Counsel for the state has filed two briefs. As to the second proposition, which is the serious proposition in this case, they claim that the defendant did not intend to receive back the same money which he delivered to defendant, and that therefore the title to the money passed, and that the obtaining of the same was by false pretenses, and was not larceny by fraud.

The trouble with this contention is that, it is directly contrary to the evidence of the prosecuting witness, which has heretobefore been quoted. Pie testified positively that he expected the return of the $3,000 within one hour from the time of the delivery of the same to the defendant. That he waited at the hotel room of the defendant for him to return with the money. On cross-examination he stated that he did not expect to wait days for the return of his money, but again and again testified that he waited and expected it Avithin an hour, and that he expected it that night. This was the state’s testimony and the only testimony upon Avhich it could rely to sustain the conviction in this case.

All of the authorities agree that the distinction between obtaining money by false pretense and larceny by fraud is very close. Where money is obtained, instead of other property, the distinction is even more close. Yet all of the authorities are practically agreed that there is a definite distinction between the two crimes and that distinction is: If the owner, in parting with the property by false pretenses, intends to invest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretenses, but if the intention of the owner is to vest accused .with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to Ms own use, the crime is larceny by fraud.

A number of states have enacted statutes eliminating this distinction, and saying that if property has been obtained, either by false pretense or by larceny, that the accused shall be declared guilty. We have no such statute in this state. State v. Burke, 189 Wis. 641, 207 N. W. 406; State v. Tower, 122 Kan. 165, 251 P. 401, 52 A. L. R. 1160.

We cannot quote from the many cases and texts that have been examined. They are in perfect accord as to the distinction between the two crimes as above stated. We merely cite some of them. Many of them are almost identical with, or very similar to the facts in the instant case: 35 C. J. S., False Pretenses, § 3, p. 638; 36 C. J. p. 778, note 18; 17 R. C. L. p. 8, sec. 6, and p. 14, sec. 14; 32 Am. Jur. p. 893, sec. 7; 26 A. L. R. 391; Segal v. State, 98 Tex. Cr. R. 485, 265 S. W. 911, 35 A. L. R. 1336; Williams v. State, 124 Ohio St. 585, 180 N. E. 58, 83 A. L. R. 441; Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; Helsey v. State, 18 Okla. Cr. 98, 193 P. 50; McKinney v. State, 19 Okla. Cr. 94, 198 P. 108; Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123; State v. Antoine, 155 La. 120, 98 So. 861; Jacobson v. State, 24 Ariz. 402, 209 P. 310; People v. Selk, 46 Cal. App. 2d 140, 115 P. 2d 607; People v. Shwartz, 43 Cal. App. 696, 185 P. 686; People v. Rabe, 202 Cal. 409, 261 P. 303; State v. Chamberlain, 215 Iowa 273, 245 N. W. 277; People v. Barnett, 31 Cal. App. 2d 173, 88 P. 2d 172; Courtney v. State, 174 Miss. 147, 164 So. 227; State v. Ewing, Mo. App., 270 S. W. 116; State v. Burke, 189 Wis. 641, 207 N. W. 406; 25 C. J. 657, note 24; United States v. Mangus, D. C.; 33 F. Supp. 596; People v. Stiller, 255 App. Div. 480, 7 N. Y. S. 2d 865, affirmed 280 N. Y. 519, 19 N. E. 2d 923; Crosby v. Paine, 170 Minn. 43, 211 N. W. 947; Rory v. State, 176 Miss. 835, 170 So. 304; State v. Tower, 122 Kan. 165, 251 P. 401, 52 A. L. R. 1160 (this case gives a complete history of the false pretense statute) ; Simmons v. State, 165 Md. 155, 167 A. 60; Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712; Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95; Hagan v. State, 76 Okla. Cr. 127, 134 P. 2d 1042.

Some of the cases above cited are directly in point as to the issue here involved. We desire to quote from some of them, as they state the reasons for the rule above announced.

In the case of Courtney v. State, supra [174 Miss. 147, 164 So. 228], the Supreme Court of Mississippi held:

“The indictment alleges, in substance, that the appellants, Eli Courtney and Frank Woods, falsely and feloniously pretended to Steve Price that they had found a pocketbook containing a large sum of money, and that they offered to divide its contents with Price if he would give them a certain sum of money; that Price gave them $100, whereas Courtney and Woods had not found a pocketbook, or any sum of money.
“The appellants introduced no evidence, and that of the state discloses that Price met Woods on the streets of Indianola, and immediately thereafter they met Courtney, who said that he had found a pocketbook, showed it to Price and Woods, and asked them ‘not to give him away/ promising if they would not that he would divide the contents with them. To this they agreed. The pocketbook appeared to contain money. Courtney then left them, stating that he would get the money changed, and return. On returning he stated that he had delivered the pocketbook to a man who was Woods’ and his ‘boss’; that the pocketbook contained $1,600 in money and some bonds; that the ‘boss’ said he would keep the bonds and return the money to OourtDey and his companions, provided they would put up $100 or $200 to show that they were in good standing. Price then delivered to either Woods or Courtney $100 in cash, the agreement being that this $100 was to be returned to him, and, in addition, one-third of the $1,600. They then agreed to meet later and consummate the deal. Woods and Courtney failed to keep this appointment, and did not return to Price his $100. They were arrested the next day at Moorhead. One of them had in his possession a pocketbook containing ‘green and yellow’ coupons, which was identified by Price as being the one that they claimed to have found. Courtney stated to the officer who arrested them that ‘they went back by Sunflower to dodge the law because they knew the law had their eye on them.’
“The appellants say, in effect, that the false pretense is not proven, the evidence failing to negative the finding of the pocketbook containing the sum of money; but, if mistaken in this, the crime of obtaining money under false pretense was not proven, the appellants being guilty of larceny, if of anything. We will assume, but merely for the purpose of the argument, that the evidence discloses that no pocketbook or money was found; for, assuming that the contrary is true, the crime committed would not be obtaining money under false pretenses, but larceny. Price in delivering the money did not intend to, nor did he, divest himself of the title and ownership thereto, but what he delivered was merely possession of the money to be used for a specific purpose and then returned to him.
“At common law, where one obtains the possession of, but not the title to, property from another by means of a false pretense, and with the requisite intent converts it to his own use, the crime committed is larceny.. But if the owner in parting with the property invests the recipient with the title thereto, as well as the possession thereof, no larceny is committed. 9 Halsbury’s Law of England (2d Ed.) § 953; 2 Bishop’s New Crim. Law (8th Ed.) §§ 477 and 808; 25 C. J. p 657; 36 C. J. p. 778; Foster v. State, 123 Miss. 721, 86 So. 513. It will thus be seen that the passing of title constitutes the line of demarcation between larceny and false pretense. Obtaining title to property by a false pretense was indictable at common law, provided the pretense Avas such as affects the public interest. 1 Hawkin’s Pleas of the Crown, 318 ; Halsbury op. cit. § 954; 25 C. J. р. 584. To remedy this defect in the common law, the statute of 33 Hen. 8, c. 1 (1 Hawkin’s op. cit. 319) was enacted, and afterwards other statutes, among which are 30 Geo. 2, c. 24, § 1, 52 Geo. 3, c. 64, §§ 1, 7, and 8 Geo. 4, с. 29, § 53, 24 and 25 Vict. c. 96, § 88 and Regina v. Kay, 1 Law Reports, c. 257. The substance of these statutes has been generally enacted in America and appears in section 919, Code 1930. Under these statutes the courts hold that the word ‘obtain’ means not to acquire the mere possession of property, but to acquire the title thereto or the ownership thereof. Halsbury op. cit. § 962, Regina v. Kay, supra, and other authorities hereinbefore cited.
“The crime of larceny was here committed according to the evidence of the state, although it should not appear therefrom that a pocketbook containing money Avas actually found; for the appellants obtained money from Price by means of a promise to use it for a specific purpose and to return it to him. The act constitutes larceny provided the money Avas obtained with the requisite intent. Akroyd v. State, 107 Miss. 51, 64 So. 936.
“The court below should have directed a verdict for the appellants, because of the variance between the indictment and the evidence,.and, under section 1190, Code 1930, should have ordered them ‘into the custody of the proper offficer’ for trial under an indictment charging the offense which the evidence discloses they committed.”

In the case of Crosby v. Paine, supra [170 Minn. 43, 211 N. W. 948], the Supreme Court of Minnesota said:

“We cannot sustain the contention that the acts of Stevens & Co. constitute common-law larceny as distinguished from the crime of obtaining property by false pretenses. Where the wrongdoer, by fraud, induces the owner to part with the possession, but not with the title of his property, and thereafter feloniously disposes of it, he is guilty of common-law larceny; but, where he induces the ■owner, by fraud, to part voluntarily with both possession and title, he is not guilty of larceny, but of obtaining property by false pretenses. The distinguishing element between the two is Avhether the owner intended to part with possession only, or expected and intended to part with both possession and title. This distinction is recognized by an almost unbroken line, of authorities. 18 Am. & Eng. Enc. (2d Ed.) p. 469, states:
“ ‘It- is well settled that a taking within the definition of larceny occurs where a person, by means of some fraud •or trick, and with intent to steal, procures the delivery of goods to him by the owner, * * * unless the delivery is made for the purpose of passing the property or title in the goods as well as the possession.’
“The same volume, at page 481, states:
‘IS: the owner of goods, intending to transfer the title thereto, delivers them to another person, * * * the fact that such a delivery was procured by some fraudulent or deceitful practices, and with the design of cheating or defrauding the owner, will not make the receipt of the goods a taking on which a charge of larceny may be founded.’
“17 R. C. L. p. 13, § 13, states:
“ ‘If a person with a preconceived design to appropriate property to his own use obtains possession of it by means of fraud or trickery, the taking under suck circumstances amounts to larceny.’
“The same volume, on page 14, § 14, states:
“ ‘If the owner of goods * * * voluntarily parts with both the possession and the title, to the alleged thief, not expecting the goods to he returned to him or to be disposed of in accordance with his diréctions, then neither the taking nor the conversion amounts to larceny. * * *
“ ‘This rule applies even where the owner is induced to part with the title through the fraud and misrepresentation of the alleged thief. In such cases the crime committed may be obtaining property by false pretenses.’
“To same effect see 36 C. J. 774, 775, 777; 25 C. J. 657; 1 Bish. Cr. Law (9th Ed.) § 583; Clark and Marshall Law of Crimes, 461 ; McClain Cr. Law §§ 563, 659. In the section last cited the author states:
“ ‘If the owner parts with his property not expecting to have it back again, and he is induced to do so by what constitutes false pretenses, there cannot be a conviction for larceny.’ ”

This was a civil case, but the facts are almost identical with the facts here presented, except that the title to six. Brazilian bonds of one thousand pounds sterling were taken by fraud and trickery, but under the facts the title to the bonds passed, and the court held that the defendants were guilty of taking money by false pretenses, and not larceny.

In the case of Loomis v. People, supra, the Supreme Court of New York said:

“The defendants conspiring together fraudulently and feloniously to get possession of the prosecutor’s money, induced him, by a trick and fraudulent device, to deliver his money to one of them for a moment and for a specific purpose, whereupon they converted it to their own use without his consent. Held, that they were guilty of larceny.”

The evidence was that money was secured by trick and fraudulent device very much like the facts in the instant case. The court said:

‘Tt is evident that the prisoner Lewis and his confederate Loomis conspired fraudulently and feloniously to procure the money of the prosecutor, and by means of a trick and device succeeded in converting it to their own use. Upon the facts proven, the question to be determined is, whether a case of larceny is established. The jury have found that it was the intention of the prisoners to convert the money without the consent, and against the will of the prosecutor, and that he did not intend to part with his property. I think that the conclusion at which they arrived was abundantly warranted by the evidence, and the conviction of the prisoners can be upheld upon well-established legal grounds.
“It is contended that the conviction was erroneous, because, the prosecutor voluntarily parted with his money, not expecting to receive back the same bills, but others in their place, and hence the crime was not made out. It must be conceded that, in order to establish the offense of larceny, there must be a trespass, and without this element the offense is not complete. 1 Hawk. Pl. Cr., § 1, p. 108; 2 Russ, on Crimes (5th Am. ed.), 95; People v. McDonald, 43 N. Y. 61; Hildebrand v. People, 56 N. Y. 394, 15 Am. Rep. 435. Even although the owner is induced to part with his property by fraudulent means, yet if he actually intends to part with it, and delivers up possession absolutely, it is not larceny. Smith v. People, 53 N. Y. 111, [13 Am. Rep. 474].
“In this case, considering the circumstances, it cannot be deemed, we think, that the prosecutor intended to part with the possession or the ownership of the money. It was handed over for a particular purpose, with no intention to loan it, or absolutely to surrender the title, and it was only in case of its loss that other money was to be procured upon the check, which the prisoner Lewis claimed to have in his possession. The prosecutor then had parted with no absolute right to the same, nor transferred any title to the bills before the contingency of the loss occurred, and the use of the money was but temporary, and for a specified object. Certainly, when it appeared that no loss had happened, the temporary possession was at an end, and to all intents and purposes the money reverted to the prosecutor. The alleged loss, brought about by the criminal and fraudulent conduct of the prisoners, could not change the title, or in any way transfer the ownership to them. They did not thereby acquire any right, and it cannot seriously be questioned that at this time, if not before, the prosecutor would have been justified in taking the money forcibly, or could have maintained an action for the recovery of the same identical bills. It was his money, and the conversion of it by the prisoners, before it was won, was without a semblance of lawful authority, and, as the jury have found, with a felonious intent.
“It was a clear case of larceny, as marked and significant in its general features as if the prisoners had wrongfully seized and appropriated it when first produced. The form of throwing the dice was only a cover; a device and contrivance to conceal, the original design, and so long as there was no consent to part with the money, does not change the real character of the crime. While the element of trespass is wanting and the offense is not larceny, where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi, yet as is well said by a writer upon criminal law:
“ ‘It is different where, with the animus furandi, a person obtains consent to his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said to be against it. Consent to deliver the temporary possession is not consent to deliver the property in a thing, and if a person, animus furandi, avail himself of a temporary possession for a specific purpose, obtained by consent to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is, therefore, acting against the will of the owner, and is a trespasser, because a trespass upon the property of another is only doing some act upon that property against the will of the owner.’
“In the case at bar there was no valid agreement to part with the money absolutely, and no consent to divest the owner of his title. It was passed over for a mere temporary use at most and the legal title remaining in the owner, the conversion of it by the prisoners within the rule cited was larceny. The reports are full of familiar illustrations of this rule, as a reference to some of the leading cases will show.”

The Oklahoma cases referred to adhere to this doctrine. In the case of Riley v. State, supra [64 Okla. Cr. 183, 78 P. 2d 713], it was said: “The distinction between ‘larceny’ and ‘false pretense’ is a very narrow margin. The character of the crime depends on the intention of the parties. If the owner parts with the ‘possession’ and ‘title’ of the property ‘voluntarily,’ it is not larceny. If the owner is induced to part- with possession by fraud and misrepresentation and the title to the property does not pass, and there is a fraudulent intent at the time to appropriate the properly to one’s own use and deprive the owner thereof, it is larceny.”

In Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95, 96, we said:

“If the owner parts with the possession and title, due to the deception and artifice of the taker, then the offense constitutes obtaining property by false pretenses, and not larceny by fraud.
“The intention of the owner not to part with title to his property when relinquishing possession is the vital point to be determined in distinguishing between larceny by fraud and obtaining property by false pretenses.”

In the case of Hagan v. State, supra [134 P. 2d 1045], we said:

“The distinction between ‘larceny’ and ‘false pretense’ is a very narrow margin. The character of the crime depends on the intention of the parties. If the owner parts with the “possession’ and ‘title’ of the property ‘voluntarily,’ it is not larceny. If the owner is induced to part with possession by fraud and misrepresentation and the title to the property does not pass, and there is a fraudulent intent at the time to appropriate the property to one’s own use and deprive the owner thereof, it is larceny.”

The rule announced above is based upon the early decisions of this court. In the case of McKinney v. State, 19 Okla. Cr. 94, 198 P. 108, 109, the Attorney General confessed error and the court sustained the same. It is there said :

“If one obtains possession of the property of another by fraud, and the owner intends to part with the title as well as the possession, the offense is that of obtaining property by false pretenses; but if the possession is fraudulently obtained, with the intent on the part of the person obtaining it to convert it to his own use, and the owner intends to part with the possession merely, and not the title, the offense is larceny.”

See, also, Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; Helsey v. State, 18 Okla. Cr. 98, 193 P. 50, 17 A. L. R. 197 ; Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525.

We have heretofore quoted Tit. 21 O. S. A. §§ 1541 and 1542. Section 1542 is the original “false pretense” statute, and was in existence prior to statehood, in Oklahoma Territory. It was taken from the Compiled Laws of Dakota, and the penalty prescribed is not to exceed three years in the penitentiary, or one year in the county jail, or by a fine of mot exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.

Section 1541 was enacted by the Legislature in 1923 (chap. 33, p. 47, sec. 1). It amended the Act of 1913 (Chap. 72, p. 112, sec. 1), and was known as the “bogus check” law. The punishment prescribed is not to exceed seven years in the penitentiary, or a fine of not to exceed $500, or both such fine and imprisonment.

The two sections are somewhat similar, and at the time this case was orally argued, it was contended by the defendant that he was charged in the information under section 1542, but that the court in instructing the jury gave the penalty under section 1541, which is much greater than the penalty provided under section 1542. And this is assigned as error. We have carefully examined the information, and have come to the conclusion that it was the intention of the county attorney to charge the defendant under section 1541. This for the reason that the exact words of that section are used in the information. The trial court evidently took this view when he instructed the jury, as to the penalty provided by section 1541.

Reference has heretofore been made to the two sections. Many of the decisions of the courts are based upon statutes which have different wording, and this is the cause of apparent conflicts in the decisions. The principles of law here announced distinguishing between “obtaining property or money by false pretense,” and “larceny by fraud,” are universally recognized by all the courts. And while it is a close distinction, the courts have not hesitated to draw the distinction and reverse the case where one has been charged and convicted under the wrong statute. As above stated, the facts in the instant case reveal that the prosecuting witness was defrauded of a large sum of money by tbe defendant and Ms associates. We would hesitate to reverse this case in view of the facts presented by the record, but the law demands that the same be reversed for the reason that the record discloses that defendant should have been charged and prosecuted for larceny by fraud, and not for obtaining property by false pretenses, for the reason that the prosecuting witness at the time he delivered the $3,000 to the defendant did not intend to pass the title to the same, but only parted with the possession thereof for a limited time, and fully expected the return of the identical money. There is no question but that an action of replevin could have been maintained for the money if the same could have been identified. The question of venue has not been raised or discussed in this case.

For the reasons above stated, the judgment and sentence of the district court of Craig county is reversed and the ease remanded for further proceedings.

JONES, P. J., concurs. DOYLE, J., dissents.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    JIMMIE PLUMLEE et al. v. STATE.
    No. A-10206.
    Feb. 17, 1944.
    (146 P. 2d 139.)

      P. G. Moore, of Sulphur, and Carrol J. Moody, of Pauls Yalley, for plaintiffs in error.
    Pan dell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendants, Jimmie Plumlee and William Plumlee, were jointly charged by information filed in the county court of Murray county with the unlawful possession of intoxicating liquor, were tried, convieted and sentenced to serve 30 days in the county jail and pay a fine of $75, and have appealed.

Tt is first contended that the court erred in overruling the motion to suppress evidence presented by the defendants.

At the beginning of the trial, counsel for defendants dictated into the record a motion to suppress all testimony concerning the seizure of the intoxicating liquor in question for the following reasons, towit:

“That no proper complaint was filed of record on the 27th day of January 1941 authorizing the issuance and service of the search warrant on that date for the premises described in said search warrant; for the further reason that the search warrant was not issued to the proper person nor owner of the premises searched under this alleged search warrant. That neither of said defendants, Jimmie or William Plumlee was served with a copy of said search warrant on said date or any other date. That said complaint upon which the alleged search warrant was issued is based wholly upon information and belief and circumstances and deductions made by the affidavit. That no proper showing Avas then or has ever been made to any one authorized to issue a search warrant and for the further reason that this alleged warrant was served in the night time. That no such direction was made on this warrant and for these reasons these defendants ask the court to suppress all testimony and all information that Avas obtained by reason of this search. Defendant further states that in the premises directed in this alleged search warrant is occupied by three families and only one of which is mentioned in the complaint or search warrant.”

Neither the search Avarrant nor the affidavit upon which the search Avarrant Avas based were introduced in the record and no testimony was offered concerning the failure to introduce these instruments or to show what they alleged.

Only one witness testified in support of the motion to suppress. The wife of William Plumlee testified that at the time of the arrest she and her husband and the defendant Jimmie Plumlee and his wife, lived in the house owned by her husband’s mother, which was searched by the officers at the time in question; that the house was composed of four rooms; that she and her husband occupied the nortlnvest room, Jimmie Plumlee and his wife the southwest room, and the mother the southeast room; that they all ate in the northeast room, that they all had access to each room and that the only heating stove was in the southwest room, occupied by Jimmie Plumlee and his wife.

This testimony was evidently for the purpose of showing that the house was occupied by more than one family, and, therefore, in contemplation of the law, was the same as if there had been three distinct homes. In view of the fact that neither the search warrant nor affidavit was introduced in evidence so that we could determine to whom the search warrant was directed and the description therein set forth, it is immaterial as to how many people occupied the dwelling house.

The barden of proof is upon the person who alleges the invalidity of a search to introduce evidence to sustain his motion. Where the record is silent the proceedings are presumed to be regular and in conformity to the law. Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430; Allen v. State, 74 Okla. Cr. 139, 124 P. 2d 262; Watson v. State, 73 Okla. Cr. 58, 117 P. 2d 808; Holland v. State, 58 Okla. Cr. 404, 54 P. 2d 216; Ray v. State, 43 Okla. Cr. 1, 276 P. 785; Ford v. State, 45 Okla. Cr. 161, 282 P. 370; Winger v. State, 43 Okla. Cr. 140, 277 P. 947; Phillips v. State, 34 Okla. Cr. 52, 244 P. 451.

There are many other reasons why the motion to suppress was not good, one of which was the fact that defendants denied ownership of the whisky and denied ownership or control of the land where the whisky was found, which is shown by the resume of the testimony hereinafter stated.

As to the sufficiency of the evidence to sustain the conviction, the proof of the state showed:

Certain officers of Murray county, armed with a search warrant, went to the premises in question to search for intoxicating liquor. The house was first searched and nothing was found. While certain of the officers were searching the house, others were in the yard probing with sticks into the ground searching for liquor. While the officers were searching in the yard, they saw the defendant William Plumlee approach the house from a thicket. The officers testified that they followed the footprints of William Plumlee, which were plainly discernible in soft sand, for about 75 yards east of the house and that just across a fence they found 38 pints of whisky in a towsack. That the only tracks leading to where the liquor was found were those of the defendant William Plumlee and there were just two sets of tracks, the ones leading to where the liquor was placed and a set of tracks returning from said place. The officers further testified concerning the tracking of William Plumlee and one of them went so far as to state that he could tell by the way the weeds were broken down along the path and the depth of his footprints in the sand in which hand he had carried the liquor in taking it to the place where it was found.

The defendant Jimmie Plumlee was not at the house nor on the premises at the time the search was made, but he was arrested later.

Neither of the defendants testified, but the wife of the defendant William Plumlee testified that the place where the officers claimed the liquor was found was not on the premises occupied by them, but across the fence on another piece of land.

Since there was absolutely no evidence to show any connection of Jimmie Plumlee with the alleged offense in the state’s testimony, the case will have to be reversed as to said defendant.

The circumstances of the defendant William Plumlee coming out of the thicket while the officers were making tlie search, and the testimony of the officers that they followed the tracks which they saw him make coming out of the thicket back to where the liquor was found, were sufficient to show a connection of the defendant William Plumlee with the intoxicating liquor.

The state having thus made a sufficient case to authorize the submission to the jury of said evidence, and it not being disputed by defendant that the tracks in question were made by him in the manner detailed by the officers, we think the evidence is sufficient to sustain the conviction of the defendant William Plumlee.

For the reasons hereinabove stated, the judgment of the county court of Murray county is affirmed as to the defendant William Plumlee.

It is further ordered that the judgment of the county court of Murray county, as to the defendant Jimmie Plum-lee, is reversed and the defendant is ordered discharged.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: JONES, P, J.

text:
    ORVILLE STANSBURY v. STATE.
    No. A-10264.
    Feb. 17, 1944.
    (146 P. 2d 137.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Pandell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P, J.

The defendant, Orville Stansbury, was convicted in the county court of Kiowa county of the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $75.

The Attorney General has filed a motion to dismiss the appeal herein for the reason that the appeal was not filed in this court until 130 days after judgment and sentence avus pronounced against defendant.

The record shows that on December 26, 1941, the defendant Avas duly arraigned and entered his plea of guilty to said charge and was, on the same date, sentenced as hereinabove set forth. A commitment was issued and the defendant Avas committed to the county jail where he remained for 14 days. At that time a motion to withdraw the plea of guilty and enter a plea of not guilty Avas filed which Avas overruled. The case-made was settled and signed by the trial judge on February 7, 1942, but was not filed in this court until May 4, 1942, which Avas 128 days from the time judgment and sentence was pronounced against defendant.

Title 22 O. S. 1941 § 1054 provides as follows:

“In misdemeanor cases the appeal must be taken Avithin 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

This court has repeatedly held that the right of appeal is regulated by statute. The time within which an appeal must be lodged with the clerk of this court, and all the duties imposed upon the person appealing, as well as the privileges granted are such as defined by said statute, and these provisions must be substantially complied with. Otherwise, this court cannot review a record on the merits. See Pinchback v. State, 14 Okla. Cr. 302, 170 P. 714. This rule has been uniformly followed since the same was announced in a long line of earlier cases, among which are the following: Cloyd v. State, 6 Okla. Cr. 530, 119 P. 1125; Lyons v. State, 6 Okla. Cr. 581, 120 P. 665; Johnson v. State, 10 Okla. Cr. 306, 135 P. 1154; Waggoner v. State, 13 Okla. Cr. 715, 167 P. 237.

This court has also specifically held that:

“There is no provision of [the] law which vests direction in the appellate court to hear and determine appeals when they are not taken within the time provided by the statute.” Howey v. State, 9 Okla. Cr. 453, 132 P. 199.

In the last case cited above, the court also expressly stated that under said statute prescribing the time of taking said appeal, said time begins to run from the date the judgment is rendered and not from the time of overruling of the motion for a neAV trial. To the same effect, see: Clark v. State, 18 Okla. Cr. 145, 193 P. 1008, 1009; Heath v. State, 22 Okla. Cr. 122, 210 P. 560; Criner v. State, 37 Okla. Cr. 213, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181.

There has been no response filed to the motion to dismiss. We are clearly of the opinion that the appeal was not filed within the time fixed by statute and for that reason this court is without jurisdiction to determine said cause upon its merits.

it is therefore ordered that the appeal herein be and the same is hereby dismissed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAREFOOT, J.

text:
    MARION KIRK v. STATE.
    No. A-10354.
    Feb. 24, 1944.
    (146 P. 2d 309.)
    W. W. Miller, of Tahlequah, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Houston B. Teehee, Co. Atty., of Tahlequah, for defendant in error.
   BAREFOOT, J.

The defendant, Marion Kirk, was charged in the county court of Cherokee county with the crime of conveying and transporting intoxicating liquor, towit, 120 gallons of whisky; was tried, convicted, sen-termed to serve a term of 30 days in the county jail and to pay a fine of $50, and has appealed.

The record in this case was filed in this court on November 21, 1942. The case was submitted on November 17, 1943, after having been regularly set on the docket for oral argument. At that time no one appeared on- behalf of the defendant, and no brief has been filed in support of defendant’s assignments of error, and no request has been made for an extension of time to file briefs.

Rule 9 of this court provides:

“When no counsel appears and no 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.”

The testimony in this case reveals that the defendant was seen driving the car in which the liquor was found in Cherokee county, Oklahoma; that parties were seen drinking liquor that was taken from the car, and near where the car was standing. The amount of liquor found in the car was about 120 gallons in pint and quart bottles, wrapped in brown paper such as that in which liquor is often wrapped.

By agreement this case was tried to the court, and no instructions were necessary. We have carefully examined the record and find that no prejudicial error was committed in this case; and there being no prejudicial error, the judgment and sentence of the county court of Cherokee county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    A. C. DONALDSON v. STATE.
    No. A-10316.
    Feb. 24, 1944.
    (146 P. 2d 310.)
    H. P. Hosey and Baseom Coker, both of Idabel, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, A. C. Donaldson, was charged in the district court of McCurtain county with tlie crime of rape in the first degree, was tried, found guilty and sentenced to serve 15 years in the State Penitentiary, and lias appealed.

Petition in error with case-made attached was filed in this court on August 13, 1942. No brief has been filed and no oral argument presented.

Where the defendant appeals from a judgment of conviction and no brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors and if no fundamental error appears, the judgment will be affirmed. Chastain v. State, 73 Okla. Cr. 227, 119 P. 2d 864; Owens v. State, 73 Okla. Cr. 240, 119 P. 2d 871; Thompson v. State, 73 Okla. Cr. 243, 119 P. 2d 873; Scott v. State, 73 Okla. Cr. 247, 119 P. 2d 877.

Prior to the conviction sustained from which this appeal was filed, the defendant had been convicted of this same offense and had appealed to this court. In that appeal the cause was reversed for a new trial because of the failure of the court to sustain the defendant’s motion to quash the special venire summoned by the sheriff. Donaldson v. State, 73 Okla. Cr. 41, 117 P. 2d 555, 560.

In that appeal we had occasion to remark:

“The evidence introduced by the state, if believed by the jury, shows that the defendant committed a diabolical act, and is amply sufficient to support a conviction.”

The proof of the state shows that the accused was a neighbor and apparent friend of the family of the eleven-year-old girl whom it is charged he attacked. The act of sexual intercourse, as related by the little girl, occurred near the school building. A physical examination of the prosecutrix by a doctor, and other physical facts at the scene of the crime, corroborated the story related by the girl.

The court, in his instructions, clearly defined the law applicable to the facts in this case. On the record before us we have discovered no fundamental error which would require a reversal of the judgment of conviction.

The judgment of the district court of McCurtain county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte W. J. (BILL) EDWARDS.
    No. A-10475.
    Feb. 24, 1944.
    (146 P. 2d 311.)

      Mathers & Mathers, of Oklahoma City, and Geo. B. Forrester, of Suphur, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by W. J. (Bill) Edwards to secure his release from confinement in the State Penitentiary.

The verified petition and supporting affidavits allege in substance that petitioner was granted a parole from the State Penitentiary at McAlester on the 1st day of January, 1942, by Governor Leon C. Phillips. A copy of the parole is attached to the petition.

Said petition further alleges that the petitioner went immediately to the State of Arizona and commenced working in defense work, but that on October 14, 1943, the acting-Governor, James E. Berry, arbitrarily and capriciously revoked said parole and caused the petitioner to be recommitted to the State Penitentiary where he is now confined.

The petitioner further alleged that he had, at all times since the granting of said parole, faithfully kept all the terms and conditions thereof and had been a peaceable and law-abiding citizen. That while he was at his home in Phoenix, one J. Z. Armstrong, a state investigator from Oklahoma, came to him with an officer from Phoenix and questioned, him at length. That the investigator accused him of paying $500 to the former Governor’s pardon and parole agent to secure his parole. That he had not paid any money to secure his parole and to his knowledge no one had paid gny money to secure clemency for him, and for that reason he refused to agree to return to Oklahoma and testify at the trial of the former pardon and parole agent that he had paid him money to secure his parole. That two days after he had this conversation, with the investigator, his parole was revoked and he was returned to Oklahoma.

Also attached.to the petition was a letter from one J. T. Parks, uncle of the petitioner, and the party who had helped him secure his parole, in which he states that he did not pay anyone any fees for securing the parole of the petitioner. Also attached are the social security slips issued to the petitioner while he was working for a construction company at Phoenix, Ariz., during a portion of the time when he was at liberty on the parole.

There are many terms and conditions imposed upon the petitioner by the terms of the parole, among which are the following:

“First: That the said W. J. Edwards, Number 39251, shall obey all the laws and in all ways conduct himself as a moral and upright citizen; that he shall industriously follow some gainful occupation and shall be self-supporting, and support himself and his family independent of all relief or made work, such as NYA, WPA, or kindred organizations; that in this time of War, he shall not only support himself, but shall go to the defense of his country by buying of defense bonds or the performance of some labor calculated to aid in National Defense.
“Second: That the said W. J. Edwards, Number 39251, shall report in writing to the Pardon and Parole Office, State Capitol, Oklahoma City, Oklahoma, once each thirty days, such report to give his post office address, the name of his employer, the nature of the business in which he is engaged, the average monthly earnings, and the names of at least two persons to whom he refers who know his statements to be true.
“Third: It is expressly understood by the said W. J. Edwards, Number 39251, that the Governor may revoke this parole for the violation of one or more of the conditions hereof, or for other causes by him deemed sufficient.”

Also, as a part of the parole is attached a statement signed by the petitioner, which reads:

“I, W. J. Edwards, Number 39251, hereby declare that I have read and do fully understand the conditions of the above parole agreement, and I hereby accept the same and pledge myself honestly to comply with said terms.”

The Attorney General, on behalf of the warden of the State Penitentiary, filed a demurrer to the petition.

For the purpose of disposing of the legal questions involved, the demurrer admits the truthfulness of all the allegations set forth in the petition, but alleges that this court is without authority to question the validity of the revocation of a parole issued by the Governor under the terms and conditions of a parole such as the one in question.

The Constitution confers the power to grant paroles and other forms of executive clemency on the Governor and provides as follows:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve.” Art. 6, sec. 10, Okla. Const.

The Legislature has provided for the re-arrest of a paroled convict. 57 O. S. 1941 § 346 provides:

“If a paroled convict shall at any time be guilty of a violation of any of the conditions of his parole, he may, upon the order of the Governor, be re-arrested and recommitted, without further proceedings, to confinement for the remainder of, and under the terms of, his original sentence.”

It was insisted at the hearing before this court by petitioner’s counsel that since the Legislature was authorized to prescribe the regulations under which the Governor might issue paroles, and also the manner in which the same may be later revoked, that it was incumbent upon the Chief Executive, under the above statute, to find that the parolee had violated the specific terms of the parole before he would be authorized to issue a revocation.

The question as to whether a convict released upon a parole is entitled to a hearing after the parole has been revoked by order of the Governor has been settled in the case of Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L. R. A., N. S., 110, in which it is stated:

“When a convict has been released upon a parole, and where said parole has been revoked by order of the Governor for violation of the conditions thereof, in the absence of a statute or of an express provision of the parole providing for a hearing, the convict is entitled to a hearing on habeas corpus, before the Criminal Court of Appeals, or the district court of the county where he is held, in order that he may show, if he can, that he has performed the conditions of the parole, or that he has a legal excuse for having not done so, or that he is not the same person who was convicted.”

The matter of the issuance and revocation of executive clemency is a fruitful source of controversy. A most honest and efficient Governor will sometimes be imposed upon in the granting or refusal of executive clemency. It was with this thought in mind, no doubt, that the framers of our Constitution provided that the Chief Executive alone could grant reprives, pardons, paroles, etc., but as a part of the same constitutional grant to the Governor it was further provided that these acts of executive clemency could only be issued subject to such regulations as may be prescribed by the Legislature. • The Legislature of Oklahoma, probably because of some of the language used in Ex parte Ridley, supra, Mas never attempted to pass any legislation which might place any limitations or restrictions upon the pardoning power of the Governor.

There have been several cases decided by this court similar to the instant case, but in none of them has there been a discussion of the validity and effect of the statute hereinabove quoted. In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, it is held:

“The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.
“An executive order revoking a parole and directing the re-arrest, and return to custody of the convict without giving him an opportunity to be' heard is not violative of the constitutional guaranties that no person shall be deprived of his liberty without due process of law, and ‘that no warrant shall issue but upon probable cause, supported by oath or affirmation’; since, being a convict at large by executive clemency, which he has accepted on the conditions therein stated, the legal status of the convict upon the revocation of the parole becomes the same as it was before the parole was granted.-
“A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or ‘for any other reason by him deemed sufficient.’ Held, that the Governor may order the convict to be so remanded without notice to him, and without giving him an opportunity to be heard.”

In the case of Ex parte Woodward, 58 Okla. Cr. 333, 53 P. 2d 288, it is stated:

“Where a parole is granted a convict, which expressly provides that the Governor may revoke the same for violation of any one or more of the conditions thereof, or ‘for any other cause by him deemed sufficient,’ held, that the Governor may revoke such parole and order the convict remanded without notice to him, and without giving him an opportunity to be heard.”

See, also, Ex parte Collins, 32 Okla. Cr. 6, 239 P. 693.

The statute relied upon by petitioner does not aid petitioner because he accepted the terms of the parole which provided that the Governor might revoke the parole for violation of one or more of the conditions thereof, or for other causes by him deemed sufficient. We think the reasoning set forth in the above decisions control in the disposition of the petitioner’s contention. The revocation issued by the Acting Governor does not attempt to recite any certain acts of the petitioner which constituted a violation of the terms and conditions of the parole, but it simply states, “Whereas, sufficient cause appearing to revoke said parole, etc.”

The convict was not forced to accept the parole. He had the option of accepting or rejecting it under the terms and conditions therein imposed. When he did give his written acceptance of the parole with the condition inserted therein that it could be revoked for any cause deemed sufficient by the Governor, he became bound by such terms and may not question the motivating influence behind the revocation. Even for the grossest abuse of this discretionary power vested in the Governor the law affords no remedy. The courts have no concern with the reasons which actuate the executive. The discretion exercised by him under the terms and conditions of the parole herein involved is beyond the control or legitimate criticism of the judiciary.

As a matter of public policy and to avoid litigation sucb as bere presented, it would be better for tbe Chief Executive to insert in the revocation the grounds for such action. Tbe failure to do so does not invalidate the revocation, but it does encourage litigation, sucb as tbe instant action. There was no explanation of tbe grounds for tbe revocation of tbe parole inserted in tbe revocation and since this cause was submitted on a demurrer to tbe petition no explanation of tbe causes for tbe revocation of tbe parole bave been given.

It follows, by reason of tbe foregoing authorities, tliat the demurrer of the Attorney General to the petition should be sustained and the writ of habeas corpus denied.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    GIBSON PALMER v. STATE.
    No. A-10207.
    March 1, 1944.
    (146 P. 2d 592.)

      Wimbish & Wimbish, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Gibson Palmer, was charged in the district court of Pontotoc county with the crime of manslaughter in the first degree, was tried, convicted and sentenced to serve four years in the State Penitentiary and has appealed.

Gibson Palmer, the defendant, was the owner and operator of the Broadway Buffet in the city of Ada. The deceased, W. M. Barringer, on March 4, 1939, and on April 5, 1939, had cashed checks at the defendant’s place of business, drawn on Barringer’s personal account at the Oklahoma, State Bank of Ada. Payment on these checks was refused by the bank on account of insufficient funds. The defendant had tried unsuccessfully several times by conversations over the telephone with the deceased to collect the checks.

On July 18, 1939, the defendant received a telephone call from one J. O. Abney that the deceased was standing in front of Abney’s store. The defendant took the checks and went to the front of Abney’s store and there entered into a conversation with the deceased in an attempt to collect the two checks.

Roy Earles was talking to the deceased at the time the defendant approached. His testimony concerning what occurred on that occasion is as follows:

“Q. You may state, as near as possible, Mr. Earles, the conversation had between these parties? A. Well, Mr. Gib Palmer walked up there and he had two checks in his hand and he asked Mr. Barringer if he was going to pay those cheeks off and he said, No, I don’t have the money’ —that is just as near as I know now as to what was said— and he said, ‘It looks like you could pay those checks off, they have been- given now about three or four months and he told him that he didn’t have the money and that man, Gib Palmer, then reached to get hold of him and they started scuffling and he said, ‘Come go with me to the county attorney and I will turn you and the checks both over to the county attorney,’ that is the best I know as to what they said and then they went scrambling on west and south of there. Q. Did Mr. Palmer reach to hit him or to get hold of him? A. He reached to get hold of him it looked to me like. Q. Where did he reach to get him? A. In the shirt bosom. Q. Will you demonstrate to the jury about where he reached to get hold of him? A. Right about there (indicating.) Q. What did Mr. Barringer do when Mr. Palmer took hold of his shirt? A. The best I could tell he butted against that glass right there. Q. Bumped back like that? A. Yes, pulling back. Q. What did Mr. Barringer do then? A. His feet then were both down on the concrete and he went to dodging backwards and they were going west and south right back out that way. (indicating) * * Q. Will you state to the jury what the two men were doing as they went along there? A. The only thing I can state is that they were scuffling with one another, naturally like a man would if. another man was going to take him some place and he didn’t want him to. Q. Did Mr. Barringer swing at Mr. Palmer? A. Yes, sir. Q. Did Mr. Palmer still have hold of his shirt there when they got along there (indicating) as near as you could tell? A. Yes, sir, as near as I could tell. Q. Where did you go? A. I got back to about that mark right in there, (indicating) Q. Did you watch him closely — -Mr. Barringer? A. It looked to me like he stumbled in that grass there and fell out into the street.”

J. O. Abney testified that he heard a noise in front of his store and looked out and saw the defendant and the deceased slapping each other. That the scuffling started on the north side of his store building and continued onto the west side. That after they got around to the west side of his building he could only see their feet. He saw the deceased fall at the curb and the witness called the ambulance,

Paul Anderson and Tom Cummings each testified that they were engaged in a conversation while they were standing on a street corner west of Abney’s store. That their attention was first attracted to a scuffle by the bowl of a pipe coming out across the sidewalk. That they saw the deceased back up to the curb with his hands in front of his face trying to shield himself from some blows being struck by the defendant. They each testified that they saw defendant strike deceased two blows with his fist and that at the second lick the deceased fell to the pavement.

It Avas the theory of the state that the defendant struck the deceased with such force with his fist that the deceased sustained a fracture to his skull, resulting in his death. The information charged the defendant with the crime of manslaughter in the first degree and alleged that the defendant killed the deceased Avhile the defendant was committing a misdemeanor, towit, assault and battery upon the deceased.

Pour doctors testified concerning the injuries sustained by the deceased.

Dr. I. L. Cummings, brother-in-law of the deceased, testified that the deceased had a laceration in front of the left ear and eye; his nose was fractured, his left eye was black and blue and his face beaten up quite a bit. That deceased died from a fracture to the basal skull and hemorrhage of the brain. That his death Avas caused from a lick of some sort. That it could have been caused from a fall on the curb or on a rock or it could have been caused from a side blow to the head.

The other three doctors testified on behalf of the defendant that they examined deceased at the Sugg Clinic. That the deceased had a laceration above the left ear and was bleeding from his nose and his ear. That X-rays were made and it was determined that deceased had a fractured skull. Each of these doctors testified that in his opinion the basal fracture sustained by the deceased could not have been caused by a blow from a man’s fist. Each gave as his opinion that the blow was sustained by the head striking the phvement.

The defendant testified in his own behalf. Iiis testimony did not differ materially from the testimony of Roy Earles. He stated that he was attempting to get the deceased to go with him to the county attorney’s office to straighten out the cheeks and that a scuffle started and some licks passed between them. That he grabbed hold of the deceased and was going to take him to the county attorney’s office, but that deceased jerked loose, started to run, hung his feet in the sand and fell against the curb. Defendant admitted striking the deceased two or three times but denied that he hit him with enough force to knock him down.

Counsel who represented the defendant before this court did not participate in the trial of the case. Many of the questions they now urge for a reversal of the ease were matters which were not properly preserved in the record by saving an exception to the action of the lower court in his rulings thereon in the trial. The record discloses that no exceptions were taken to the admission or exclusion of evidence, no exceptions were taken to any of the instructions given by the court, and no special instructions were requested.

It is well settled that errors to which no exceptions are taken will not be considered on appeal unless they are jurisdictional or of a fundamental character. The appellate court indulges a presumption that if error had been called to the attention of the lower court by objection at the time and in the motion for a new trial, the lower court would have corrected the error.

Fundamental errors which will be considered on appeal, even without objection or exception taken during the trial of a case, are those which go to the foundation of the case, or take from the defendant a right which was essential to his defense. Where it appears, and justice requires, this court will consider them whether or not exceptions are taken in the court below. Morrison v. State, 37 Okla. Cr. 359, 258 P. 1050; Tyler v. State, 74 Okla. Cr. 39, 122 P. 2d 826.

After the verdict of the jury was returned, present counsel for defendant were employed and the errors now complained of were presented in a motion for a new trial and were incorporated in the petition in error attached to the case-made filed herein.

It is insisted that the court committed fundamental error in certain of the instructions which were given and also committed fundamental error in failing to fully and properly instruct the jury in that the trial court failed to submit to the jury the question of excusable homicide, or the question of manslaughter in the second degree, or of the offense of assault and battery.

Complaint is especially made of instruction No. 4. This instruction is as follows :

“Homicide is the killing of one human being by another, and is manslaughter in the first degree in the following cases:
“'When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

Instruction No. 4. is in the language of the statute and, of course, was proper to be given. The argument of the defendant is directed, not at the giving of this instruction, but it is at the failure of the court to define the term “misdemeanor”. Nowhere in the court’s instructions is a misdemeanor defined and nowhere are they instructed as to what constitutes a battery. The state’s whole case is based upon the theory that the homicide was perpetrated by the defendant without a design to effect death, but while he was engaged in the commission of a misdemeanor. .Instruction No. 4, standing alone, without further advising the jury as to what constituted a misdemeanor, left the jury to determine that question.

In the case of Roddie v. State, 19 Okla. Cr. 63, 198 P. 342, 343, this court held:

“An instruction is erroneous, although correct as an abstract proposition of law, if it leaves the jury in doubt or uncertainty as to how it should be applied to the evidence.”

It is the duty of the court to fully and fairly instruct the jury as to all matters of law which he thinks are necessary for their information in giving their verdict. A jury should never be left, to determine questions of law. It was fundamental error for the court to instruct the jury that homicide is manslaughter in the first degree when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor, without further instructing them as to what constitutes a misdemeanor and without defining assault and battery, which was the misdemeanor relied upon by the prosecution.

Title 21 O. S. 1941 § 731 provides:

“Homicide is excusable in the following cases: * * *
“2. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat provided that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

In the case of Johnson v. State, 59 Okla. Cr. 283, 58 P. 2d 156, in construing this statute in a similar case, it was held:

“In prosecution for manslaughter in first degree by striking decedent on head with fist, refusal of instruction that homicide is excusable when committed by accident and misfortune, in heat of passion, upon sudden and sufficient provocation, or upon sudden combat, provided no dangerous weapon is used and killing is not done in cruel and unusual manner, held error.”

See, also, Mead v. State, 65 Okla. Cr. 86, 83 P. 2d 404.

Tn the case of People v. Hampton, 96 Cal. App. 157, 273 P. 854, 855, it was heid in construing the statute of California, which is in identical language with that of Oklahoma, as follows:

“Where evidence showed that defendant struck deceased when reprimanded for his conduct, and knocked deceased down, causing his head to strike sidewalk, from which he died, defendant was entitled to have submitted to jury question whether homicide was excusable when committed in heat of passion on sudden provocation or on sudden combat, within Pen. Code, § 195.”

Title 21 O. S. 1941 § 716 provides:

“Every killing of one human being by the act, -procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

The defendant had a right to have the issue of manslaughter in the second degree and also that of assault and battery submitted to the jury. If the jury had believed the statement of the accused as to how the death of the deceased occurred, he would probably, have been convicted of nothing more than assault and battery. Under the testimony of defendant he admitted striking the deceased two or three times, but claimed that the deceased had jerked away from him and started to flee and stumbled and fell, striking his head on the pavement, resulting in his death. He would at least have been guilty of assault and battery by reason of striking deceased before he jerked aAvay and fled. The jury might not have found defendant guilty of assault and battery, but under the information filed herein and the evidence, it was an included offense and as such was one of the issues properly to be submitted to the jury for their determination.

The testimony is undisputed that there was grass and sand between the sidewalk and the street. It is further undisputed that the deceased fell from the grass or sidewalk to the street, striking his head against the pavement. The testimony of the witnesses is conflicting as to whether the deceased tripped and fell or whether he was knocked down by the defendant. After considering the testimony of the physicians, one is impelled to the conclusion that the fracture occurred by reason of the force of the fall against the pavement and not from the impact of defendant’s fist against the skull. Under such circumstances the issue of manslaughter in the second degree should have been submitted.

In the case of Miles v. State, 41 Okla. Cr. 283, 273 P. 284, 286, it is stated:

“The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.”

In the case of Moore v. State, 48 Okla. Cr. 106, 289 P. 788, it is held:

“In a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.”

It therefore follows by reason of the foregoing that the judgment of the district court of Pontotoc county should be reversed and remanded for further proceedings consistent with this opinion.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte ELMER FRAZIER.
    No. A-10458.
    March 8, 1944.
    (146 P. 2d 849.)

      W. N. Bed wine, of McAlester, for petitioner.
    Bandell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by the petitioner, Elmer Frazier, to secure his release from confinement in the State Penitentiary at McAlester.

In the verified petition filed herein it is alleged that the petitioner is restrained of his liberty and is being confined to the State Penitentiary by reason of a judgment and sentence pronounced against him in the district court of Tulsa county on June 5, 1937, wherein he was sentenced to serve 25 years in the State Penitentiary for the offense of robbery with firearms. That he was delivered to the warden of the State Penitentiary on June 7, 1937, and has been therein confined since that date.

The petition further alleged that the petitioner had been arrested in California on a charge of kidnapping a resident of Tulsa county. That he was removed to Oklahoma, but at the hearing before a United States Commissioner the person whom he is alleged to have kidnapped refused to identify him and the case was dismissed.

The petitioner further alleges that while he was confined in the federal jail the county attorney filed a charge of robbery with firearms against him, alleging that he had robbed one J. P. Gray of the sum of $8. That said case was continued for hearing before the justice of the peace from time to time for several weeks and was finally dismissed. That the officers continued to hold him in the federal jail, without any charge at all, for about six more weeks when a new complaint was filed in the state court charging him with the identical offense of robbery with firearms, as was set forth in the first complaint which was filed against him. That after a preliminary examination he was bound over to the district court for trial. That on May 19, 1937, the petitioner was arraigned in district court, entered his plea of not guilty and the court appointed the public defender of Tulsa county to represent said petitioner. That the petitioner gave the public defender the names of some witnesses in Kansas City who knew that petitioner was not in Tulsa on the date the alleged crime was committed, but ivas in Kansas City on that date, but the court refused to continue the case in order to give petitioner an opportunity to get said witnesses.

The petitioner further alleged that the public defender refused to properly represent him in the trial and after he was convicted and sentenced that the public defender refused to appeal his said case. That if the public defender had properly represented him he would not have been convicted.

Attached to the petition is a copy of the information filed in the district court of Tulsa county and a copy of the judgment and sentence pronounced against petitioner in conformity to the verdict of the jury.

The information sufficiently alleges the crime of robbery with firearms and there are no defects apparent on the face of the journal entry of judgment and sentence.

It is elementary law that in a habeas corpus proceeding only jurisdictional questions may be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal. In re Knight, 75 Okla. Cr. 316, 131 P. 2d 506; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549.

All of the allegations of the petition concern facts Avhich do not affect the jurisdiction of the court and may not be presented in a habeas corpus proceeding. Over six years have elapsed since the confinement of petitioner in the State Penitentiary. It is, of course, now too late in Avhich to file an appeal in this court. If the statements of petitioner are true, his only recourse at this time is to have them submitted to the Governor for his consideration in determining Avhether the petitioner is a fit subject for executive clemency.

The writ of habeas corpus is accordingly denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    MAYNARD ARTHUR COULSON v. STATE.
    No. A-10240.
    March 8, 1944.
    (146 P. 2d 847.)

      Robert E. Shelton, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Maynard Arthur Coulson, was charged in the county court of Grady county with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor; a jury was waived; the defendant was tried, convicted, and sentenced to pay a fine of $50 and has appealed.

The only contention presented by defendant is that the evidence is wholly insufficient to sustain a conviction, for the reason that the proof does not show beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor on the occasion in question.

The state used two witnesses. The highway patrolman who arrested the defendant testified that he was parked near the city limits of the city of Chickasha on highway No. 81. That he and hi§ companion saAV defendant’s car pass at a rapid speed. As it went south down the highway it was weaving in the road. IJis testimony in this connection is as follows:

“Q. (By County Attorney) You said it was weaving. What do you mean by that? A. He drove off the road on the right hand side and over the center line on the left hand side — not once, but several times. Q. On the right hand side, he drove off the pavement? A. That’s right. * * * Q. Tell the court in what manner yon arrested Mr. Coulson? A. We drove up behind him and turned on the spotlight and red light and siren and he came to a stop. I don’t remember how long it took him, but he did stop, and we took him out of the car and found he was under the influence of intoxicating liquor and placed him in the patrol car and brought him back to Chickasha and placed him in the Grady county jail. Q. Now, can you describe his physical condition at that time with reference to his speech? A. Well, his speech wasn’t so terribly bad. It wasn’t normal, but he could talk fairly well. He didn’t have any difficulty in talking. Q. Can you tell the court upon Avhat facts you base your statement that he was driving his car under the influence of intoxicating liquor? A. His breath smelled of intoxicating liquor, his eyes were bloodshot, and he staggered. Q. Was his condition such that would interfere with his method of driving a car? A. I Avould say it did.”

The patrolman further testified that he did not know the defendant prior to that date.

The jailer testified that the highway patrolman brought the defendant to the jail sometime after midnight. That he smelled intoxicants on defendant’s breath. As to the condition of the defendant, the jailer testified:

“Q. (By County Attorney) What is your opinion as to Avhether Coulson was or was not under the influence of liquor at the time you saAV him downstairs at the time you talked to him and dressed him in. A. Well, I would have to say he Avas under the influence of liquor. I smelled it on his breath, but I can’t tell you the extent.”

The defendant testified in his OAvn behalf and admitted several prior convictions for violations of the prohibitory liquor laws. He denied that he was intoxicated at the time of his arrest and claimed that he had only one bottle of beer to drink about 10:00 p. m.

A mechanic who worked on defendant’s car shortly before he was arrested testified that he observed the defendant and that in his opinion the defendant was not under the influence of intoxicatiing liquor.

The wife of the mechanic testified that she saw the defendant with her husband while he was fixing the car, and that she did not see him stagger, nor say or do anything which would indicate that he was under the influence of intoxicating liquor.

There is a dispute in the evidence. Under the evidence of the state the defendant is guilty of the crime charged. It is established law that where a jury is waived, the judgment of the trial court, upon a disputed question of fact, will be sustained on appeal where there is any competent evidence in the record to reasonably support his finding. Heald v. State, 78 Okla. Cr. 130, 145 P. 2d 206; Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553; Ramey v. State, 69 Okla. Cr. 257, 101 P. 2d 856, 857; Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648.

The judgment and sentence of the county court of Grady county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    JACK HOLLINGSHEAD v. STATE.
    No. A-10376.
    March 8, 1944.
    (146 P. 2d 846.)

      Floyd Freeman and Joe Simpson, both of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Dixie Giluier, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Jack Hollingshead, was charged in the court of common pleas of Tulsa county with the crime of omitting to furnish necessary food, shelter and medical attention to his minor child, age two years; was tried before a jury, convicted and sentenced by the court to pay a fine of $250, and serve 90 days in the county jail, and has appealed.

The statute under which defendant was charged is 21 O. S. A. 1941 § 852, and is as follows:

“Every parent of any child who wilfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such child is guilty of a misdemeanor.”

The case-made with petition in error attached was filed in this court on January 6, 1943. The case was assigned for hearing on November 17, 1943. No appearance was made by the defendant or his attorney, and an order was entered giving the defendant 30 days in which to file brief. No brief has been filed. Rule 9 of this court is as f o Hows:

“When no counsel appears and no 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.”

Tn construing this rule it has been universally held by this court that the record will be examined for fundamental error only, and if none is found, and there is competent evidence in the record to sustain the conviction, the judgment of the trial court will be affirmed. Booth v. State, 73 Okla. Cr. 67, 117 P. 2d 805; Nott v. State, 73 Okla. Cr. 139, 118 P. 2d 667; Branch v. State, 73 Okla. Cr. 154, 118 P. 2d 1043; Canady v. State, 73 Okla. Cr. 195, 119 P. 2d 256; Smith v. State, 72 Okla. Cr. 314, 115 P. 2d 925; Stone v. State, 72 Okla. Cr. 148, 114 P. 2d 184.

Following this rule we have examined the record in this case. It reveals that defendant was charged Avith the failure to provide in the manner provided by law for his two-year-old child. The defense presented was that he was not the father of the child. Upon this point there was some conflict in the evidence. It is revealed that the defendant, being confronted by the mother of the child and her mother, and he and his father told of her condition, he married her on the folloAving day. After the birth of the child he lived with her for a short while, that they lived together as husband and wife, and he then left her. He later returned and told her of his desire to live with her again, and to make amends for the wrong he had done her. This he did, but shortly thereafter again abandoned his Avife and the child. The evidence was that he had contributed nothing to the support and maintenance of his child, who was two years old at the time of the trial. He had filed a petition for divorce at the time these charges were filed.

We have examined the information and the instructions of the court, to which there were no exceptions. The instructions in an excellent manner presented every issue involved in this case, and the jury returned a verdict of guilty. The court assessed the punishment as above stated. The defendant had a fair and impartial trial. By his failure to file a brief, we may well imply that this appeal was probably for delay. Owens v. State, 6 Okla. Cr. 110, 116 P. 345, 36 L. R. A., N. S., 633, 635, Ann. Cas. 1913B, 1218; Hunter v. State, 10 Okla. Cr. 119, 134 P. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612.

This case well illustrates the trend of the times in which we live. In days past parties who committed even minor offenses were sought out and prosecuted to the limit of the law. But men who willfully and heedlessly abandoned their families and especially their minor children, Avithout cause or provocation, were permitted to go unpunished. To my mind, the enforcement of this statute, 21 O. S. A. 1941 § 852, is one of the most important duties and responsibilities assumed by the law enforcement officers of this state. We note that the officers are noAV more efficiently making application of this statute in deserving cases. There is no crime much more detestable than the willful abandonment of their offspring by those whose duty and responsibility require that they perform this noble act and privilege. In behalf of this defendant, it may be said that he strongly contended that he was not the father of this child, and that was the reason given for its abandonment. As stated, this was a question for the consideration of the jury, and we think by his own acts he had assumed this duty and responsibility when he married the mother of this child, and he should have lived up to his duty and responsibility.

The judgment of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., and DOYLE, J., concur.