text:
    JERRY GRIMM et al. v. STATE.
    No. A-6746.
    Opinion Filed March 23, 1929.
    (275 Pac. 654.)
    L. C. McLean, for plaintiffs in error.
    Edwin Dabney, Atty. Gen-, and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error were convicted in the county court of Garfield county on a charge of violating the prohibitory liquor law, and were each sentenced to pay a fine of $500 and to serve six months in the county jail.

The appeal was lodged in this court in September, 1927, and plaintiffs in error were at large upon an appeal bond. Thereafter they were apprehended on a charge of felony, and were confined in the county jail of Garfield county, and, while so confined, broke jail, and are now fugitives from justice. It has been uniformly held by this court that, where a person is convicted of a crime and has prosecuted an appeal to this court, and thereafter becomes a fugitive from justice, or otherwise beyond the jurisdiction of this court, and cannot be made to respond to any judgment or order which might be made in the case, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    GUS KEY v. CITY OF ARDMORE.
    No. A6513.
    Opinion Filed March 30, 1929.
    (275 Pac. 660.)
    Sigler & Jackson, for plaintiff in error.
    Russell B. Brown, City, Atty., for defendant in error.
   EDWARDS, P. J.

The plaintiff in error hereinafter called defendant, was charged in the city court of Ardmore with occupying a room for the purpose of prostitution. From a conviction in the city court, he appealed to the county court, and, upon conviction, a fine of $19 was assessed, from which he has appealed to this court.

Section 472 of the ordinance of the city of Ardmore in part provides:

“It shall be unlawful for a bawd, a prostitute, loose woman, or any other person, to keep, occupy, or use any room, apartment, tenement for the purpose of prostitution or assignation. * * *”

The record discloses that at the time charged two policemen went to a room in the T. P. Rooming House and discovered defendant and one Bernice Settle in a room together, the woman in bed and defendant in a night garment.' There was evidence that Bernice Settle had the reputation of being a prostitute. It is argued that this evidence of the reputation of Bernice Settle was incompetent, citing Young v. City of Ardmore, 36 Okla. Cr. 202, 253 P. 305, and Arnold v. State, 28 Tex. App. 480, 13 S. W. 774. The Young Case is not in point. The charge there was that the accused associated with a prostitute, and, in order to establish the offense, it was necessary to prove the person with whom defendant associated was a prostitute in fact, and not that she bore such reputation. In the Arnold Case, the accused was charged with being a common prostitute, and it was held necessary that the facts showing accused to be a prostitute must be proven, and not merely general reputation. See in this connection Jones v. State, 10 Okla. Cr. 79, 133 P. 1134; Balch v. State, 65 Okla. 146, 164 P. 776. The charge here being that defendant occupied a room with Bernice Settle for the purpose of prostitution, not that he occupied a room with a prostitute or occupied a room in a house of prostitution, it is not essential that it be proven that the room was in a house of prostitution or that the woman occupying the room with defendant was in fact a prostitute. The offense is proven when it is shown that the parties occupied a room under circumstances sufficient to satisfy the jury beyond a reasonable doubt that they were there for the purpose of prostitution.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    INGRAM v. McNEILL, District Judge.
    No. A-7323.
    Opinion Filed March 30, 1929.
    (275 Pac. 660.)
    L. A. Justus, Jr., for petitioner;
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

This is a proceeding by petitioner for a writ of mandamus to require Hon. Edwin R. McNeill, judge of the district court of Tulsa county, to certify his disqualification to try petitioner upon a charge for a felony. He alleges that the said judge entertains a prejudice against him and has an opinion of his guilt or innocence and an opinion as to the law under which the prosecution is carried on, and that petitioner cannot have a fair and impartial trial before said judge. This proceeding is proper practice under the provisions of section 2633, Comp. Stat. 1921, and numerous decisions of this court. Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263, and authorities cited. The Constitution, art. 2, § 6, guarantees to every person charged with an offense a trial without prejudice. As applied to a judge, this is construed to mean personal prejudice of the judge against the accused. It does not mean a judge may not have an opinion of the guilt or innocence of the accused, or may not have an opinion of the applicability of the law to the offense sought to be charged. But, in order to disqualify, it means that he shall entertain a personal prejudice against the accused. In order to disqualify, therefore, it must be made to appear as a matter of fact and not as a conclusion that the judge entertains a personal prejudice.

Upon the hearing in this cause no oral testimony was introduced, and the petition is supported only by affidavits attached thereto. They fall far short of any showing of personal prejudice on the part of respondent, and his counsel admitted that they were unable to make such showing. The petitioner is not entitled to a writ as prayed for.

The application is denied.

DAVENPORT, J., concurs.

CHAPPELL, J., not participating.


author: EDWAEDS, P. J.

text:
    JIM GIVES WATER v. STATE.
    No. A-6535.
    Opinion Filed March 30, 1929.
    (275 Pac. 659.)
    Johnson & Stith, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWAEDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of assault and battery, and his punishment fixed at confinement in the county jail for a period of 30- days.

Two assignments of error are argued: First, that the court committed error in permitting the state on cross-examination to ask defendant relative to convictions in the police court at Ponca City and in reference to his having attempted to prevent the attendance of witnesses to testify against him. The court erred in permitting the examination as to defendant having been convicted of violations of a city ordinance in the police court of the length shown by the record. However, no objection was made on the ground of its incompetency. The objection was made that the questions of fines in the police court assumed a fact not in evidence, and that defendant had not been questioned about his reputation. Upon this being overruled, defendant's counsel said: “Let them prove that he was convicted." This is a withdrawal of the objection made. We find no exceptions to the rulings of the court on these questions.

The other contention is that the court erred in instruction 5%. The court in this instruction evidently was attempting to tell the jury that the evidence and argument of counsel upon any issue except the guilt of the defendant should not be considered by them. This instruction is so badly worded, however, that it is capable of being construed as expressing the opinion of the court of the guilt of defendant. The instruction was excepted to at the time given, but the error in giving it was not assigned in the motion for a new trial. It first appears in the petition in error. The error is not fundamental. It is settled by many decisions of this court that, where the error complained of is not presented to the trial court in the motion for a new trial, unless fundamental, it will not be reviewed in this court. Dew v. State, 11 Okla. Cr. 581, 149 P. 917; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Brashears et al. v. State, 38 Okla. Cr. 175, 259 P. 665.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    DUG LOGAN v. STATE.
    No. A-6574.
    Opinion Filed March 30, 1929.
    (275 Pac. 657.)

      Sylvester Grim and W. P. Hickok, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Beckham county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

The defendant and Joe Collins were jointly charged in the district court of Dewey county with the crime of manslaughter, alleged to have been committed by the defendant and said Collins while intoxicated by driving an automobile upon and against one Albert Edwards and thereby inflicting wounds from which he died. A change of venue was taken to Beckham county. A severance was granted and defendant tried, with the result stated. No complaint is made of the sufficiency of the evidence to support the judgment, and we deem it unnecessary to recite the facts further than to say that it is shown that at the time charged defendant and his codefendant, Collins, y/ere in the front seat of an Oakland car and another person was in the back seat. The car was driven down the street of the little town of Camargo at a speed estimated at from 40 to 50 miles per hour. It was run against and upon one Albert Edwards and Prank Evans, who were standing near the curb. Edwards was so seriously injured that he died a few days later. Two jars of whisky were found in the car immediately after the collision and there is evidence that defendant and Collins were intoxicated.

The contentions argued are directed to instructions 12 and 13. Instruction 12 has application to the charge of murder, and, since defendant was not convicted of murder, but of manslaughter, it is unnecessary to discuss this instruction as defendant was not injured thereby. Byars v. State, 7 Okla. Cr. 650, 126 P. 252; Littleton v. State, 19 Okla. Cr. 461, 200 P. 716.

The objection made to instruction 13 is that it does not require that the jury find beyond a reasonable doubt that the driving of the automobile at an unlawful and excessive rate of speed was the proximate cause of death. The information charges murder under the third subdivision of section 1733, Comp. Stat. 1921, alleging death caused by an act done by persons engaged in the commission of a felony; i. e., the driving of an automobile upon the public highway while intoxicated. The conviction evidently is of the included offense under the first subdivision of section 1740, Comp. Stat. 1921, an act causing death by one engaged in the commission of a misdemeanor; i. e., the driving of an automobile upon the highway at an unlawful and excessive rate of speed. Instruction 18 is as follows:

“But should you entertain a reasonable doubt of the defendant’s guilt of the charge of murder, then you will next inquire as to whether or not the defendant is guilty of the offense of manslaughter in the first degree and if you find and believe from the evidence beyond a reasonable doubt that the defendant, Dug Logan, in Dewey county, Oklahoma, on or about the first day of May, 1926, or at any time within three years prior to the filing of the information in this case, to wit, the 10th day of May, 1926, while driving a certain Oakland automobile along the public highways of said Dewey county, or while the owner or in possession of said car, directed, permitted or encouraged one Joe Collins, while in said car with said Joe Collins, to drive said car along said highway at a rate of speed so great as to endanger the life or limb of other persons, or to drive or propel said motor vehicle at a rate of speed in excess of thirty-five miles an hour, and while in the commission of such misdemeanor did strike, and run over one Albert Edwards with said car and thereby inflict upon the said Albert Edwards certain mortal wounds of which the said Albert Edwards did on the 3d day of May, 1926, die, then in that event you should find the defendant, Dug Logan, guilty of manslaughter in the first degree and so say by your verdict.”

It is insisted that the misdemeanor in the commission of which defendant was engaged must have been connected with or be the direct and proximate cause of death. This contention is sound. Certainly, the commission of a misdemeanor in no way connected with the death is not what is meant by the law. For instance, it is unlawful to drive an automobile upon' the public highway under certain conditions without displaying thereon a license tag for the current year; but surely no court would hold that because one was so operating a car and should be so unfortunate as to unintentionally and without fault strike and kill some person, that because he was engaged in the commission of a misdemeanor, the driving without license, an offense in no manner connected with the death, he would be guilty of manslaughter. Or if a person were driving an automobile at an unlawful rate of speed, and some person should intentionally project himself in front of the car, the driver, although engaged in a misdemeanor in driving at such excessive rate of speed, would be guilty of no offense for the reason that the misdemeanor which he was committing was not related to the death, or was not the proximate cause of death. This question is discussed in State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137. The court there said:

“The seventh and last error complained of relates to the matter of proximate cause, and grows out of this part of the charge: Tf you shall find from the evidence, beyond a reasonable doubt, that this defendant, E. E. Schaeffer, was at that time violating the provisions of that act and struck this child with his automobile, and also find beyond a reasonable doubt that the child died from the effects of such injury, then your verdict should be guilty as charged in the indictment/
“The trial court here, in effect, charged the correct legal proposition as to proximate cause, without, however, putting on the label. But it is not always necessary to use the term ‘proximate’ or ‘proximate-cause’ in order to correctly charge thereon. No question was raised in dispute of the fact that the automobile killed the child, and it further appearing that this was the undoubted result of the unreasonable and improper speed at which the automobile was then being operated, there was no prejudicial error resulting to the defendant. True, the language of the statute does not clearly indicate that death must be the proximate result of the unlawful act, since the word ‘in’ seems to indicate ‘at the time thereof’ rather than ‘thereby.’ Yet the safer and sounder doctrine seems to be recognized in most of the states that the unlawful act must be a proximate cause of the killing. So obvious and so manifest did this appear throughout the case that the defendant in error’s counsel did not even suggest any further charge by the court upon the question of proximate cause.”

A comparison of the instruction in the Schaeffer Case and the instruction here discloses that the instruction here is more specific than that in the Schaef-fer Case, as it is here said:

“* * * And while in the commission of such misdemeanor did strike, and run over one Albert Edwards with said car and thereby inflict, * * * certain mortal wounds of which the said Albert Edwards did * * * die, then and in that event you should find the defendant, Dug Logan, guilty of manslaughter in the first degree.”

The instruction does not use the term “proximate cause,” but does substantially require that the jury shall find that the crime charged was committed in the commission of a misdemeanor. This court in many instances has held that an indictment or information need not follow the exact language of the statute in charging a statutory offense; upon the same principle it is not necessary that an instruction follow the exact language of the statute or the legal verbiage in stating a principle of law, if words of similar import are used.

Here it is undisputed that deceased was killed by the defendant and his codefendant in running an automobile against and over him. It is clear that the unlawful operation of the automobile was the proximate cause of death and it would not have been reversible error if no instruction at all on this point had been given, particularly where no request was made. An instruction should be-considered in connection with the evidence in the case. When so considered, if it is free from fundamental error or misstatement of law which may have misled the jury to the injury of the defendant, it is sufficient. It has frequently been said by this court that a conviction will not be reversed because the instructions may not be technically correct. Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222.

Upon a consideration of the entire record we are thoroughly convinced that defendant had a fair trial, the instructions are free from any substantial error, and there is no miscarriage of justice.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    J. B. FOWLER v. STATE.
    No. A-6516.
    Opinion Filed March 30, 1929.
    (275 Pac. 655.)

      I. C. Sprague, for plaintiff in error.
    Edwin Dabney, Atty. 'Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McCurtain county of assault with intent to rape, and was sentenced to pay a fine of $450.

The only assignment of error argued is that the evidence is insufficient to sustain the judgment.

The testimony is that defendant, a blacksmith, lived in the town of Haworth, and near him lived a Mrs. Dollarhide, a widow with several children, one a daughter between 15 and 16 years of jage, and it was upon this girl that the assault was made. She is the principal witness and testified that, at the time charged, in the absence of her mother, defendant came to the house, hugged and kissed her, and put his hands upon her person, pulled up her dress, and put her bloomers down, and attempted to have intercourse with her, and, upon her refusing and crying, desisted; that he came back later, and attempted to hire her to not tell of his conduct. Defendant admitted he was at the premises a time or two on the date alleged, but that his mission was for a proper purpose, and denied any improper conduct. By numerous authorities, it is settled that an accused may be convicted of rape or assault with intent to rape upon the uncorroborated testimony of the female, unless her testimony bears upon its face inherent evidence of improbability, or is impeached or is unreasonable or unreliable.

We have scrutinized the testimony carefully, and are unable to say that there appears any inherent improbability in the testimony of the prosecutrix, or that her testimony is impeached or appears unreasonable or unreliable. Its weight and sufficiency was for the jury; no reason to disturb the judgment is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    J. C. McCLURE v. STATE.
    No. A-6281.
    Opinion Filed March 30, 1929.
    (275 Pac. 1073.)
    For former opinion, see 39 Okla. Cr. 57, 263 Pac. 161.
    Guy D. Talbot, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Alfalfa county, of the crime of receiving a deposit in an insolvent bank, knowing the said bank to be insolvent, and while acting as the president of said bank, and was sentenced to serve a term of five years in the penitentiary and to pay a fine of $5,000. From the judgment and sentence, the defendant appealed to this court for review by petition in error and case-made, which petition in error and case-made were filed on June 21, 1926.

The plaintiff in error not having filed a brief within the time, on January 21, 1928, an opinion by this court affirming the judgment of the trial court was rendered. 39 Okla. Cr. 57, 263 P. 161. February 8, 1928, a petition for rehearing and brief in support of the same were filed by the defendant. Defendant, in support of his petition for rehearing and reversal of this case, urges several grounds for reversal — the first assignment of error being, that the court erred in overruling his motion to set aside the indictment; the second ground being the court erred in overruling the demurrer to the information. An examination of the indictment shows that it properly charged an offense against the defendant of receiving money in his bank, knowing the same to be insolvent, and the motion of the defendant to set aside the indictment and his demurrer to the same was properly overruled.

Defendant in his third assignment of error urges the court erred in admitting incompetent, irrelevant, immaterial, hearsay, secondary, and prejudicial evidence offered in behalf of the state, over the objection of the plaintiff in error duly made at the time. The testimony in this case is sufficient to show that, when the deposit was received by the defendant for his bank, as charged in the information, the defendant knew that the bank was insolvent, and that it had for several days prior thereto failed to meet its outstanding drafts and to make the proper remittances due other banks, correspondents of the Bank of Ingersoll, of which bank the defendant was an officer.

Defendant argues at length that the money alleged to have been deposited by Mrs. Sophia Smith was not a deposit. An examination of Mrs. Smith’s testimony shows that, after considerable conversation with the defendant, she consented to leave the $3,000 as a deposit in the bank, and that the defendant in the ease gave her a deposit slip showing the amount of money she had deposited. The testimony of Mrs. Smith further shows she had a deposit in the bank at the time the bank closed of $4.,3¡00, including the $3,000 item. The testimony of Mrs. Smith clearly shows that the money was left on deposit as alleged in the information, and it further tends to show that the defendant, at the time she left the money on deposit, assured her that the bank was solvent, and that he called Mr. Stine, and stated to Mrs. Smith that Mr. Stine was one of the richest men in that section of the state. We cannot agree with the argument of the defendant that the testimony was not sufficient to show that the money was left on deposit in the bank.

It is further argued by the defendant that the court erred in permitting the state to offer, over the objection of the defendant, testimony of individual transactions of Mrs. Margaret Wagoner and J. F. Bolte at some time prior to the failure 'of the1 bank. The defendant does not cite any authorities in support of his contention. After a careful examination of the testimony of Mrs. Wagoner, and all of the testimony in the case, we hold its admission did not prejudice the rights of the defendant.

It is next urged by the defendant that the court erred in permitting the state, over the objection of the defendant, to offer in evidence Exhibits B to B38, inclusive. We do not think that the proper predicate was laid by the state for the introduction of the exhibits, many of them not being properly identified before being introduced in the record, yet, after a careful examination of all the testimony in the record, the exhibits were only cumulative and did not tend to establish any fact that had not heretofore been testified to by direct and competent testimony.

The defendant, in support of his contention that the Exhibits B to B38, inclusive, were improperly admitted, cites the case of Appelget et al. v. State, 33 Okla. Cr. 136, 243 P. 255. We do not think the contention of the defendant is borne out by the facts in the case or the ruling of the court based thereon. In the case at bar no testimony was offered by the defendant. The testimony of the state conclusively shows that the defendant was an officer of the bank at the time the deposit was made by Mrs. Sophia Smith, and the testimony complained of by the defendant, contained in the exhibits offered, only tended to show correspondence between the different banks and the Bank of Irigersoll, which correspondence and exhibits were found in the records and files of the Bank of Ingersoll at the time it was taken over by the banking department of the state. There was no prejudicial error in admitting the exhibits complained of by the defendant.

In Lowdermilk v. State, 11 Okla. Cr. 281, 145 P. 1110, in the third paragraph of the second syllabus, this court said:

“The admission of incompetent evidence does not necessarily justify the reversal of a conviction where there is competent evidence in the record which conclusively establishes the guilt of the accused, and no defense whatever is offered.”

In Pate v. State, 15 Okla. Cr. 90, 175 P. 122, in the third paragraph of the syllabus, this court said:

“In this state the burden is upon the defendant on appeal, not only to show that the court erred in the admission of the evidence, but also in addition thereto, to satisfy this court that the admission of such evidence injured the defendant substantially.”

The defendant urges that instructions Nos. 13 and 16 are grievously erroneous, and especially under all the circumstances existing in this case and surrounding its trial, and he states that both of these instructions inform the jury that, in case they find the defendant guilty, it is the duty of the jury to fix the punishment, citing in support of his contention Chandler v. State, 3 Okla. 254, 105 P. 375, 107 P. 735.

In the Chandler Case, in the fifth paragraph of the syllabus, the court held:

“An instruction to the jury to fix the punishment on conviction, when not requested by the defendant, is improper; ibut the verdict will not be set aside for ■that reason alone, when it appears that the punishment fixed was not excessive, and no showing is made that the defendant had been in any manner injured.”

In the body of the opinion the court said:

“We agree with the counsel that under this section the court should not have directed the jury to fix the punishment unless the defendant requested it. But did the action of the court in so directing the jury prejudice the rights of the defendant? If it did, this case should be reversed for that reason; if not, the case should not be reversed. Under this section the jury had the right to fix the punishment, whether the court so directs or not. They must fix the punish-iment if the defendant requests it. If the court had not so instructed the jury, they could have, and might have, fixed the punishment. Under the statute, and under the instructions of the court, they could have fixed the punishment at three years’ imprisonment. The .verdict was for two years. There is nothing in the record to indicate to this court that, if the jury had not fixed the punishment, the court would have given a lighter sentence, and since the jury could have fixed the punishment without the instruction, and there being no showing and no contention made here that the punishment is excessive, we do not believe the defendant was prejudiced by the instruction.”

Section 2750, Comp. Stat. 1921, is as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Under the section above quoted, the jury has the right to fix the punishment whether the court so directs or not. If the court had not instructed the jury, it could have, and might have, fixed the punishment. In this case there is nothing in the record to indicate that if the jury had not fixed the punishment, the court would have given a lighter sentence, and, since the jury could have fixed the punishment without an instruction, and in the absence of any showing that the punishment fixed by the jury was excessive, we do not believe defendant was prejudiced by the instructions.

The record in this case is voluminous, covering more than 2,000 pages. After a careful examination and study of the record, the court finds that the indictment is sufficient; that the testimony is sufficient to support the' judgment; that the instructions fairly stated the law applicable to the case and were fair to the defendant; that no fundamental or prejudicial error was committed by the court in the trial of the case.

Finding no errors in the record sufficient to reverse the case, the judgment is affirmed.

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


author: CHAPPELL, J.

text:
    ROSCOE SMITH v. STATE.
    No. A-6648.
    Opinion Filed March 30, 1929.
    (275 Pac. 1071.)

      Ash & Jones, for plaintiff in error.
    James W. Smith, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county-court of Washita county on a charge of having possession of intoxicating liquor, and was adjudged to pay a fine of $450 and be imprisoned in the county jail for 5 months. The record discloses that this case was called for trial on the 11th day of February, 1927. The county attorney of Washita county had been attending a meeting of the highway commission at Oklahoma City on order of the board of county commissioners and on his return this day he phoned the court clerk and announced his arrival prepared to take up the court docket. The fact that he had returned was communicated to the county judge by the court clerk, but, notwithstanding the return of the county attorney and the announcement of the fact to the county judge, the county judge arbitrarily declared the necessity for the appointment of a special prosecutor for this case, and did immediately appoint James W. Smith an attorney at law for that purpose, and this over the objection of the defendant. The defendant by his attorney then presented a motion for a continuance, and the same was overruled. The defendant being absent on account of serious illness of his wife, as set forth by his affidavit in his motion for continuance, the court forfeited his appearance bond, ordered a bench warrant issued for his arrest, and adjourned court until 1:30 o’clock February 11, 1927.

When court convened at 1:30 o’clock on said day, the defendant was brought before the court. He then presented a further motion for a continuance, which was overruled. The defendant then asked for 24 hours in which to enter his plea; and, it then being 2:45 o’clock p. m. February 11, 1927, the court made an order granting defendant until 2:45 o’clock the following afternoon (February 12th) in which to enter his plea, and excused, all jurors and witnesses until that .time. But on the same afternoon (February 11th), the county judge reconvened the court, had defendant brought into court, set aside the order granting 24 hours in which to plead, and on motion of said Jaimes W. Smith, special attorney appointed by the court to prosecute in this case, forthwith arraigned the defendant, entered a plea of “not guilty” for him, and adjourned court until 9 o’clock a. m. February 12, 1927.

On February 12, 1927, 9 a. m., court again convened. This case was called for trial, and the county attorney, J. G. Springer, appeared in open court and offered to proceed with the trial and requested permission of the court to so proceed. The court thereupon rejected the services of the county attorney, J. G. Springer, and directed James W. Smith, special prosecutor, to proceed with the trial of the case, and this over the objection of the defendant.

The special prosecutor, James W. Smith, then announced ready for trial; and, over the objection of the defendant, a jury was impaneled, a trial was had forthwith, which resulted in a .conviction of the defendant, and his punishment was fixed at a fine of $450 and imprisonment in the county jail for a period of 5 months.

The third ground of error alleged in defendant’s motion for a new trial filed in said cause is as follows:

“The court erred in appointing James W. Smith, as special prosecutor in this case over the objections and exceptions of the defendant, and in refusing to permit J. C. Springer, the County Attorney, to conduct the trial of said case.”

Defendant for his fourth ground of error alleges: “The .court erred in forcing the defendant to trial in said cause over his objections and exceptions, and not giving him a statutory time in which to plead, and in forcing defendant to trial without being legally arraigned.”

This motion for a new trial was overruled, and the defendant saved his exceptions and alleges in his petition in error filed in this court that the trial court erred in overruling the said motion for a new trial for the reasons set out in the third and fourth grounds and for other reasons set out in said motion.

In determining this case, it will only be necessary for this court to examine the questions in defendant’s third and fourth grounds in his motion for new trial, and they will be considered together.

Section 2725, C. O. S. 1921, provides:

“If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.”

The failure or inability of the county attorney to attend the trial as contemplated by section 2725 is not such an inability as is disclosed by this record. This record discloses that the county attorney had returned to the seat of the court prior to the beginning of this trial, had notified the county judge who tried this case that he was in the city and ready to proceed with the official business of the court and appeared at the courthouse at the time the case was called for trial and in open court demanded the right to proceed with the prosecution of this case. The trial court refused to permit the county attorney to prosecute, and, over the objections of the defendant, proceeded with the trial of the case.

Under the provisions of section 2725, C. O. S. 1921, the court may appoint some person to perform the duties of the county attorney (1) when he fails to attend upon the court; (2) or his inability to attend the trial; (3) or his disqualification and in no other cases. Section 5741, C. O. S. 1921, provides:

“It shall be the duty of the county attorney to appear in the district, superior and county courts of his county and prosecute and defend, on behalf of the State or county, all actions or proceedings, civil or criminal, in which the State or County is interested or a party; and whenever the venue is changed in any criminal case, or in any civil action or proceeding in which his county or the State is interested or a party, it shall be the duty of the county attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed.”

In the case of Mahaffey v. Territory, 11 Okla. 213, 66 P. 342, the court says:

“The county attorney derives his authority from the people, as expressed in the statute, and his right and authority cannot be restricted or superseded by the district court, unless some of the conditions or disqualifications named in St. 1893, c. 22, art. 5, § 9, exist. The term ‘unable to attend to his duties’ is construed to mean some physical or mental incapacity to perform the duties of county attorney.”

It appearing from the record that no legal disqualification existed as to the county attorney, and he being present in court demanding the right to perform the duties of his office, it was reversible error for the trial court to supersede the county attorney and force the defendant to go to trial over his objections.

The appointment of James W. Smith as special prosecutor being without authority of law, all his acts are void.

There are other errors assigned and argued by the defendant, but, from the view we take of this record, it is not necessary to consider them.

The cause is therefore remanded, with instructions to the trial court to proceed with the trial of the case in a regular and orderly manner.

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


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    CLARENCE LOWE v. STATE.
    No. A-6507.
    Opinion Filed March 30, 1929.
    (275 Pac. 1066.)
    F. M. Cooper, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county on a charge of pointing a pistol and was sentenced to pay a fine of $50 and to serve 90 days in the county jail.

The evidence is very sharply conflicting, but, if the case were free from error, there is sufficient to sustain the judgment. An examination of the record discloses, however, that the court in his instructions did not require that the facts be believed beyond a reasonable doubt, but, in addition, placed the burden of proof on defendant. In instruction No. 6 the court charged:

“You are further instructed that it is unlawful for any person to point a pistol or any other weapon, whether loaded or not loaded, at any person or persons either in anger or otherwise; and in case after hearing all the evidence in this case you find that Clarence Lowe did on the 4th day of September, A. D. 1926, point a pistol or other deadly weapon at the said F. A. Wheeler, it will be your duty to convict him, and you are further instructed that after hearing all the evidence in this case you believe that the defendant Clarence Lowe is innocent, it will be your duty to acquit him. * * *”

The burden to prove the guilt of an accused is always on the state, and, if the jury entertain a reasonable doubt of defendant’s guilt, they should acquit. It is not required that they believe the defendant to be innocent, but merely that they have a reasonable doubt of his guilt. Section 2692, Comp. Stat. 1921; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Findley v. State, 13 Okla. Cr. 128, 162 P. 680; Stribling v. State, 18 Okla. Cr. 48, 192 P. 590; Tabor v. State, 23 Okla. Cr. 303, 214 P. 564; Hooper et al. v. State, 26 Okla. Cr. 227, 223 P. 209; Brennon v. State, 27 Okla. Cr. 286, 226 P. 1062; Jay et al. v. State, 42 Okla. Cr. 32, 274 P. 487.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


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    TOOTSIE PATTON v. STATE.
    No. A-6609.
    Opinion Filed April 6, 1929.
    (275 Pac. 1075.)
    R. A. Howard, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Carter county upon an indictment returned by the grand jury to the district court and by that court transferred to the county court, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a term of 80 days.

The judgement was rendered January 18, 1927. The appeal was lodged in this court May 14, 1927. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error. The evidence amply sustains the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    J. G. COWAN v. STATE.
    No. A-6521.
    Opinion Filed April 6, 1929.
    (275 Pac. 1070.)
    Seymour Foose, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of the crime of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for a term of one year. The defefndant was charged with the larceny of sheep of the value of $90. The record discloses that the defendant admitted the larceny of the property set out in the information prior to the trial of the case, and this confession was testified to at the trial. The defendant did not take the witness stand.

The brief filed on behalf of defendant does not cite a single authority upon the propositions advanced for a reversal of the judgment. On the assignment of error, that the evidence is insufficient to sustain a conviction and that the trial court erred in refusing to direct a verdict of not guilty, no abstract of evidence is made, and no argument is presented to show wherein the evidence fails to sustain the verdict of guilty. Counsel states that the evidence is “too voluminous to be abstracted” and requests the court, “to read and consider it;” thus politely placing on this court the burden of searching the record to determine if the evidence is sufficient to establish the guilt of the defendant beyond a reasonable doubt.

In the case of Reeves v. Territory, 2 Okla. Cr. 351, 101 P. 1039, this court says in the syllabus:

“Questions not fully presented in the briefs of counsel will not be considered upon appeal, unless they relate to fundamental matters. It is the duty of counsel upon appeal to this court, who complain of errors in the proceedings of trial courts, to place their fingers upon the place that hurts, and clearly point out the errors complained of.”

Where counsel cites no authorities and points out no substantial defects, this court will examine the record for errors affecting the substantial rights of the defendant, and, finding none, will affirm the case.

While the information is not skillfully drawn, it is sufficient to charge the offense of grand larceny, and, no errors of law appearing upon the record sufficient to justify a reversal, the cause is affirmed.

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


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    BUD LANGFORD v. STATE.
    No. A-6612.
    Opinion Filed April 6, 1929.
    (276 Pac. 242.)
    Geo. L. Zink, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of having the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $225 and to serve 60 days in the county jail.

Judgment was entered on January 29, 1927. The appeal was lodged in this court May 17, 1927. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error. The evidence amply sustains the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    A. C. HANDLEY v. STATE.
    No. A-6675.
    Opinion Filed April 6, 1929.
    (276 Pac. 242.)
    Joe Adwon and Earley & Choat, for plaintiif in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Oklahoma county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve '30 days in the county jail.

The judgment was rendered on March 7, 1927, and the appeal was lodged in this court on June 25, 1927. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error. The evidence reasonably sustains the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    A. C. GUNTHER v. STATE.
    No. A-6524.
    Opinion Filed April 6, 1929.
    (276 Pac. 239.)
    L. D. Mitchell, Lee G. Gill and C. C. Andrews, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of procuring money by passing a false or bogus check, and was sentenced to serve a term of five years in the state penitentiary and pay a fine of $200.

The facts in this case are substantially the same as the facts in case No. A-6523, 42 Okla. Cr. 129, 275 P. 237, decided by this court, except in this case the defendant obtained $450 from the Ketchum Hotel Company by means of a bogus check passed on the 18th day of May, 1926, and the information was filed on the 15th day of June, 1926.

The evidence to support the charge and the errors of law complained of by the defendant are practically the same in this case as in No. A-6523.

This court having decided the questions raised in A-6523 adverse to the defendant, and the evidence in this case being ample to support the verdict of the jury, it follows as a matter of course that this cause is affirmed.

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


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    FRED FOSTER v. STATE.
    No. A-6584.
    Opinion Filed April 6, 1929.
    (276 Pac. 235.)
    G. A. Holloway, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Hughes county on a charge of selling whisky, and his punishment fixed at a fine of $50 and confinement in the county jail for a term of 3'0 days.

The judgment was rendered February 21, 1927, and the appeal lodged in this court April 23, 1927. No briefs in support of the judgment have been filed. An examination of the record discloses no. jurisdictional or fundamental error. The evidence amply sustains the verdict and judgment.

Case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    ROBERT HUGHES v. STATE.
    No. A-6864.
    Opinion Filed April 6, 1929.
    (276 Pac. 235.)
    W. R. Wheeler, J. Q. A. Harrod, and Morris & Wilhite for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county on a charge of the larceny of domestic animals and was entenced to serve a term of two years in the state penitentiary..

The appeal was lodged in this court in January, 1928. There has ¡been filed a motion to dismiss the appeal, setting out that defendant has removed from the state of Oklahoma and is now outside this state and beyond the jurisdiction of this court. This motion has been on file since February 26, 1929, and bears an affidavit by the county attorney of Caddo county that the same was served upon counsel of record for plaintiff in error. No response to said motion has been made. It is settled by many decisions of this court that, where a defendant has been convicted and appeals from the judgment, this court will not consider his appeal unless he is where he can be made to respond to any judgment or order which may be rendered, but, in such case, will dismiss the appeal.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


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    WILLIAM CECIL HILL v. STATE.
    No. A-6532.
    Opinion Filed April 6, 1929.
    (276 Pac. 236.)

      J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Canadian county, on a charge of assault with intent to commit rape, and was sentenced to imprisonment for a period of one year. Motion for new trial was filed and overruled, and defendant duly excepted.

The charge against the defendant was attempt to commit rape upon the person of Frances Peck, 16 years of age. The testimony in substance shows that the defendant went to the home of her stepfather, in company with his brother ; when they reached the house, and finally found Frances Peck, who had been hiding from them, the brother of the defendant drove away in the car and left the defendant at the house; that shortly after the brother drove away the defendant assaulted the prosecuting witness Frances Peck and tried to cohabit with her; that he bit her on the arm and struck her, and she tried to get away from him, and resisted him for some time; that the defendant made every effort he could to have sexual intercourse with the prosecuting witness, but in the scuffle he fell and hit himself in some way, and was unable to get up, and the prosecuting witness got away from him and went to town, where her parents were, and informed them what had happened. A number of witnesses testified to seeing the prosecutrix on her way to town, and one or two witnesses testified to seeing the brother of the defendant driving the car with one casing down, and seeing the tracks of this car at the home of the prosecutrix.

The testimony of the prosecutrix is not denied by the defendant. The defendant called some witnesses, but their testimony only tended to show that the previous conduct and character of the prosecutrix was bad. The defendant attempted to show that the prosecutrix had been intimate with other men, or out with them under suspicious circumstances. The testimony shows that the statement of the prosecutrix as to defendant assaulting her is true. It is not deemed necessary to set out the testimony in detail, as there is practically no contradiction of the prosecutrix as to what took place at her home.

Several errors are assigned by the defendant, the first one being that the court erred in overruling the defendant’s demurrer to the information, and in overruling his objection to the introduction of any testimony under the said information. The prosecutrix was of the age of 16 years. The defendant contends that the information is insufficient to sustain a conviction of assault with intent to commit rape, for the reason that it fails to allege the intent to feloniously have sexual intercourse with the prosecutrix. With this contention we cannot agree. Upon a careful reading of the information, we find it charges that the defendant attempted to rape, ravish, and carnally know the prosecutrix, against her will and without her consent. This language is sufficient to put the defendant on trial on a charge of assault with intent to commit rape, and the court did not err in overruling the demurrer of the defendant.

It is next urged by the defendant that the verdict of the jury is contrary to the law and evidence, and is not supported by sufficient evidence. This contention is without merit, as the evidence is amply sufficient to sustain the verdict.

There are other errors assigned by the defendant, but upon an examination of the record we do not think they are of sufficient merit to justify a reversal of this case.

Finding no prejudicial errors in the record, the judgment is affirmed.

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


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    F. LOWRY v. STATE.
    No. A-6541.
    Opinion Filed April 13, 1929.
    (276 Pac. 513.)
    Clay Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Tillman county «on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. Motion for new trial was filed, overruled, exceptions saved, and the case appealed to this court.

Before the case was called for trial, the defendant filed his motion to suppress and exclude from the jury all evidence relating to intoxicating liquor, alleged in the information to be choc beer, for the reason the same was taken from the automobile in which the defendant was brought into the town of Hollister, by breaking into said automobile, which was locked, and was an unlawful search and seizure, made without a search warrant on the part of the parties breaking the lock on the car. The defendant had been arrested at that time on a charge of attempt to rape. Testimony was heard by the court upon the motion to suppress the evidence, and the motion of the defendant was overruled, and defendant duly excepted to the ruling of the court. The jury was then called, and the state, in order to sustain the allegations in the information, called E. L. Williamson as a witness, who testified, in substance, as follows: That he was a deputy sheriff; he knew the defendant F. Lowry; he arrested the defendant on the 3d day of September, 1926, about a mile and one-fourth from Hollister; that «Shep Morton and Ledbetter were in the car with defendant at the time of his arrest; that he did not know of anything being found in the car the parties were driving after they came into Hollister, and the car was turned over to him with directions to place it in a garage.

The testimony on behalf of the state further shows that the state called Bernice Gray as a witness, who testified to a statement she heard defendant make with reference to drinking beer a short time before the defendant was brought into Hollister. On cross-examination, the witness was asked if she was not the same Bernice Gray who had charged the defendant with rape, and she answered, “Y.es,” and the court then admonished the defendant’s attorney that the charge against the defendant was attempt to rape, and the defendant then asked to have his statement in the record corrected to read attempt to rape instead of rape. The county attorney then, in the presence of the jury, stated that he thought the defendant was guilty of both rape and attempt to rape, which statement of the county attorney was excepted to by the defendant as being prejudicial conduct in the presence of the jury. The court then admonished the jury that, if it heard the statement of the county attorney, to ignore it entirely; that they were only trying one case.

The testimony further shows that when the sheriff took the defendant into town that witnesses Kilgore, Harper, and others jerked the defendant around, and Kilgore admits he beat him up. The record shows that the officer having defendant in charge did not interfere or attempt to protect the prisoner.

The alleged offense was transporting intoxicating liquor, to wit, choc beer. After the defendant was in jail or taken away, these private citizens broke open the car which had been driven by Ledbetter and found what they claimed to be bottles of liquid of some kind, and witness Kilgore, who admitted he had beaten the defendant up, stated they were quart bottles, that he delivered some of them to Mr. Harper, and Harper in turn claims to have delivered them to McCorkle, and McCorkle delivered them to a man by the name of Wages, who claims he brought them from Hollister to Oklahoma City and delivered some of them to a chemist. The chemist, several days after the bottles were taken out of the car in Hollister, testified he analyzed the contents of a pint bottle brought to him by the witness Wages, and that the contents of the bottle at the time he analyzed it in Oklahoma City contained 8.45 per cent, alcohol measured by volume; that he did not know where the bottle delivered to him came from, and stated positively it was not a quart bottle. Witness Kilgore was then recalled, and he could not identify any of the bottles present in the courtroom as being any of the bottles taken from the car.

The defendant took the stand in his own behalf, and testified that Ledbetter was driving the car the day he was arrested; that some of the boys in the neighborhood had been driving his car, and he knew nothing about there being bottles in the car, and, if there were any there, they were put there without his knowledge or consent. Defendant also testified he had heard the testimony of the witness Bernice Gray, and that he did not make any statement in her presence as to the drinking of a bottle and a half of beer. Miss Gray was the witness who prosecuted him in the trial wherein he was charged with attempt to rape, of which he was acquitted by a jury.

The defendant has assigned several errors alleged to have been committed in the trial of this case; the first one being that the court erred in not sustaining his motion to suppress the testimony with reference to certain bottles being found in the car, for the reason that, when they claim the bottles were found, he was in custody on another charge not in any way whatever connected with the charge of transporting choc beer that was intoxicating, and that the officers did not break into the car, but it was broken into by private citizens without any authority whatever. In view of the facts disclosed by the record in this case, that the sheriff having the defendant in custody on a charge of attempt to rape permitted the citizens to beat him up, and did not attempt to protect him from the violence of the citizens, and in view of the further fact that the sheriff had taken the defendant in charge and did not examine the car that was driven into town by Ledbetter, who was admitted to be driving the car owned by the defendant, the action of the private citizens in breaking into the car was without authority of law, and any evidence secured by the unlawful breaking of the lock of the car was inadmissible against the defendant upon the charge against defendant in this case.

It is further urged by the defendant that, .if the evidence of what was found in the car was properly admitted, it would not sustain the allegations in the information; there being no proof sufficient to sustain the verdict and judgment that the contents of the bottles found in the car were intoxicating. No witness claims to have tasted the liquid in the bottles found in the car. Witness Kilgore testified that the bottles found were quarts, and the chemist testified that the liquid he analyzed was in a pint bottle, was probably intoxicating, depending upon the quantity used. The testimony fails to show that the bottle analyzed by the chemist was one of the bottles taken out of the car.

The defendant has assigned several errors alleged to have been committed at the trial, but in the view we take of this record it is not necessary to consider them. We hold that the court, in admitting any testimony as to what was found in the car, which was broken open by private citizens who took part in beating the defendant up while he was in custody on a charge of attempt to rape, was an error, and that the motion of the defendant to suppress such testimony should have been sustained. The statements of the county attorney in the presence of the jury as to his belief of the guilt of the defendant of both rape, and attempt to rape, which charge was not involved in the charge defendant was being tried for, was improper and prejudicial to the rights of the defendant, even though the court admonished the jury to disregard the testimony, and that the competent testimony admitted in this case was insufficient to sustain the verdict and judgment.

The case is reversed.

EDWARDlS, P. J., and CHAPPELL, J„ concur.


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    A. J. WALDOCK v. STATE.
    No. A-6736.
    Opinion Filed April 13, 1929.
    (276 Pac. 509.)

      Williams & Fortner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of McCurtain county on a charge of embezzlement, and sentenced to imprisonment in the state penitentiary for a period of five years. Motion for new trial was filed, overruled, exceptions saved, and the case is here on appeal.

The testimony on behalf of the state is in substance as follows: R. C. Oldham testified that in 1924 he was one of the county commissioners of McCurtain county, and was chairman of the board of commissioners; that during the year 1924 a number of judgments and warrants outstanding against McCurtain county was refunded. McCurtain county owned some of these judgments; “I could not say as to the warrants.”

Mayo James testified, in substance, that he was county treasurer, and, as county treasurer, he owned some of the judgments that were refunded; in the funding bond issue there was $9,948.30 that had not been paid on August 27, 1926, and are unpaid at this time.

John C. Campbell testified that he was connected with the Tradesmen National Bank of Oklahoma City, Okla., and was its cashier; that his bank handled the funding bonds of 1924 of McCurtain county; that he delivered the bond to George W. Piersol, of the Piersol Bonding Company, and received payment from them at the time, and his bank sent the amount of the proceeds from the principal amounting to $66,000 to Mr. A. J. Waldock, the interest they sent to Mayo James, county treasurer.

The state then introduced a cashier’s check for the $66,000, indorsed by A. J. Waldock, trustee judgment creditors. Mr. Campbell further testified that the cashier’s check was for the proceeds of the funding bonds issued in 1924. A receipt from A. J. Waldock to the Tradesmen National Bank for the $66,000 was introduced in evidence showing that Waldock received that amount.

D. B. Strawn testified, in substance, that he was connected with the State National Bank as its president; that he remembered the occasion of Mr. Waldock receiving a check from the Tradesmen National Bank for $66,000; that the check was deposited in his bank as A. J. Waldock, trustee; “Mr. Waldock explained to me what it was for, saying it was the proceeds of funding bonds.” The witness then produced a deposit slip showing a deposit of $66,000 to the credit of A. J. Waldock, trustee judgment creditors.

Mayo James was recalled, and stated that, after the funding bonds were issued and sold in the latter part of 1924, or the early part of 1925, A. J. Waldock paid on the outstanding warrant $54,034.53; “he paid along at different times when we called him on his warrants”; would pay by check on the State National Bank of Idabel.

Edgar Dooley, called as a witness for the state, testified, in substance, that on June 26, 1925, A. J. Waldock bad a personal account with his bank; he was vice president of the State National Bank; that on June 26, 1925, Mr. Waldock drew a check on his trust account for $11,219.16, which exhausted the balance in the trust account, and on the same day he deposited the same amount in his personal account; witness identified the original deposit slip for $11,219.16 deposited to the individual account of A. J. Waldock; witness further stated Mr. A. J. Waldock had a personal account in his bank in 1925 up until September 4, 1925. Witness further stated that the amount deposited by A. J. Waldock was withdrawn by him by means of checks given on different dates running in amounts from one to five thousand dollars, as disclosed by his ledger sheets.

7. R. McClelland, a witness for the state, testified his home was in Oklahoma City; he was in the automobile business in the year 1925; he sold some automobiles to A. J. Waldock on or about the 12th of September, 1925; he received payment for the cars of $1,024.10, and on or about October 1, 1925, he sold him cars, and received in payment the sum of $4,912.68. Later on, on December 2, he sold him four automobiles, and $5,529.62 was paid in five checks aggregating that amount of money.

John Dewitt testified for the state, in substance, that he was vice president of the Idabel National Bank; they kept a cashier’s check record in their bank; the records show who purchased the checks and to whom the check •is made payable; that A. J. Waldock purchased a cashier’s check for ■ $4,512.68, made payable to the American National Bank of Oklahoma City, Okla.

All the testimony tends to show that the defendant, A. J. Waldock, received the full amount of this bond issue of $66,000, and deposited it in an account as a trustee’s fund, and carried it in the bank as such until he paid out the amount of $5,528.68, and later he transferred the amount of $11,219.16 to his individual account, and then paid the money out for his individual business, and did not pay to the county of McCurtain the amount due it on the judgments; that he was handling the funds as trustee for the purpose of settling with the judgment creditors and the outstanding warrants; and that he appropriated to his own use $9,948.30, and did not apply the amount to the judgments of the county when demand was made.

Defendant has assigned nine errors alleged to have been committed in, the trial of the case. They will be considered as they are argued and presented in the defendant’s brief. It is first urged by the defendant that the district court of McCurtain county was without jurisdiction to try the defendant on the charge against him. The defendant was informed against and tried under section 2124, C. 0. S. 1921, which is as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

It is urged by the defendant that section 2124, C. 0. S. 1921, was not applicable, and that the district court had no jurisdiction to try this case; defendant contending he should have been prosecuted, and, if convicted, sentenced, under section 4278, C. 0. S. 1921, which statute is as follows:

“Any person who shall appropriate or use, or aid or abet in appropriating or using, any of the funds or moneys mentioned in this article, for any other purpose than ate in this article provided, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in the sum •equal to the amount of money so appropriated or used, and imprisoned In the county jail for not less than three nor more than twelve months, and shall also be liable in a civil action for the amount so misappropriated or used, to be prosecuted by any such bond holder or other party entitled thereto.”

Section 2121, C. O. S. 1921, in defining embezzlement,, says:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”

Section 2132 defines the punishment for embezzlement as follows:

“Any person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzlement. And where the property embezzled is an evidence of debt or right in action, the sum due upon it, or secured to be paid by it, shall be taken as its (face) value.”

It is urged "by the defendant that, because of the fact that the funds alleged to have been embezzled by him are funds derived from the sale of funding bonds by the county, section 4278, C. O. S. 1921, should control, the jurisdiction of the court, and fix the penalty of imprisonment, ■in the event he should be convicted of the offense charged against him. This section, after stating that any one who shall appropriate or use, or aid or abet in appropriating or using, any of the funds or moneys mentioned in this article, for any other purpose than as in this article provided, shall be guilty of a misdemeanor, and fixing his punishment to be imprisonment in the county jail for not less than three nor more than twelve months, and a fine of a sum equal to the money so appropriated.

Article 4, c. 25, C. 0. ,S. 1921, does not provide for a trustee for judgment creditors, and it does not provide for the disbursement of any funds that might come into the hands of a trustee or agent for judgment creditors. It might be necessary and practical in certain cases for the judgment creditors to have an agent or trustee, but the statute leaves this to the creditors.

When funding bonds are issued, the statute contemplates that the new bonds will be delivered to the judgment creditors in return for the old evidence of indebtedness, be it judgments against the county or warrants. The money or funds from the proceeds from the sale of the funding bonds in the hands of judgment creditors or their trustees or agents are not referred to in any of the provisions of article 4, c. 25, C. O. S. 1921. We hold that the Legislature did not mean to include in the provisions of section 4278, C. O. S. 1921, the proceeds from the sale of funding bonds in the hands of judgment creditors, trustees, or agents, when it used the term “any of the funds or moneys mentioned in this article.” The first section of the article authorizes municipalities to fund their outstanding indebtedness, provides for the transfer after issuing, and the amounts that may be issued, and provides for the attestation of the bonds when issued; then provides as to the levy of the tax to create a sinking fund for the purpose of paying the interest coupons and retiring the bonds. We hold that the terms used in section 4278, supra, “any person who shall appropriate or use, or aid or abet in appropriating or using, any of the funds or moneys mentioned in this article,” refer to the funds and moneys appropriated and collected for the purpose of paying the funding bonds, that is to say, if the county treasurer of McCurtain county should use the specific funds collected for the funding bonds of 1924 for the redemption of any other bonds, or if the county treasurer had invested the sinking fund in any manner other than in the purchase of United States bonds or bonds of the state of Oklahoma, then section 4278 would be applicable.

The defendant argued at length that section 4278 is the one under which he should be charged, and, if convicted, sentenced, and the defendant urges that this court in State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093, sustains his contention ; citing Hays v. State, 22 Okla. Cr. 99, 210 P. 728; Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516.

'A careful examination' of the cases cited discloses that in each of these cases it was the clerk of the court that was charged with the misappropriation of funds coming into his hand as such clerk, and the provision in the statute upon fees and salaries was held to be applicable in such cases, and not the general statute upon the question of embezzlement. The point involved in this case is not similar to the point in the cases cited; in this instance the party had received the funds for the purpose of disbursing them and releasing the county of its indebtedness, and the general statute upon embezzlement is applicable. The contention of the defendant that the court was without jurisdiction was properly overruled.

It is next urged by the defendant that the court erred in overruling his motion for continuance, which was predicated upon the absence of John H. Shirk, an attorney of Oklahoma City, who had appeared in the case, and was employed by the defendant to assist in representing him. This question has been before this court many times, and the court has held that a motion for continuance was addressed to the sound discretion of the court, and, unless that discretion has been abused, this court would not reverse a case upon that ground.

In Anderson v. State, 21 Okla. Cr. 194, 207 P. 977, in the sixth paragraph of the syllabus, this court said :

“Absence of counsel is not made one of the statutory grounds for a continuance. If, however, the trial court’s action in overruling an application based on this ground resulted in depriving defendant of the benefit of counsel, or even if it appeared from the record that defendant had a substantial defense to the charge which he was uqable to present by reason of absence of counsel, this court would unhesitatingly set aside a conviction” on the ground of “failure to grant a reasonable continuance.”

In this case the defendant offered no testimony, and there is no showing that by reason of the denial of the court of his motion for continuance he was prevented from presenting a proper defense. The record in this case shows conclusively that the defendant was the only person who had knowledge of the facts and charge against him, and he certainly had time to explain his conduct as made out by the state’s case, if such an explanation could have been consistent with his innocence. This he did not do, nor does he pretend in any of the motions presented that either he or any other witness would be able to make an explanation of his conduct which would in any way raise a reasonable doubt as to hi's guilt. The defendant was not only represented by counsel, but by able counsel, and from an examination of the record his rights during the trial were properly protected by his counsel. The action of the trial court ■in overruling the motion for continuance was not an, abuse of discretion, and the motion for continuance was properly overruled.

It is next urged by the defendant that the information is insufficient to charge him with the crime of embezzlement. When the state offered testimony, the defendant objected to the offer, for the reason that the said information does not state facts sufficient to' constitute a public offense; that the facts stated in the information are not sufficient to constitute the crime of embezzlement; that the information fails to show that Waldock was trustee for McCurtain county; the information fails to allege a demand for this money. The information fails to show that Mc-Curtain county was entitled to the money alleged to have been embezzled. These objections were overruled, and defendant reserved an exception, and now urges that the information was insufficient to sustain a conviction. It is not denied by the defendant that he received the money, nor did he offer testimony to show that he did not receive the money as trustee for McCurtain county for the purpose of liquidating' certain indebtedness against the county.

This court, in the case of Ellington v. State, 7 Okla. Cr. 252, 123 P. 186, held that, where a guardian received and was intrusted with, or had in his possession and control, certain sum of money as the property of, or belonging to his ward he had willfully, unlawfully, feloniously, and fraudulently, not in due and lawful execution of his said trust, embezzled and appropriated to his own use said money, is fully proven by the evidence, and is not denied by the appellant, but that the ownership was sufficiently alleged as against the embezzler, because he obtained possession of it as property of his ward; the court saying:

“If he was agent enough to collect this money, he was agent enough to be punished for its embezzlement as against him. Whatever the rights of others might be, his ward was the owner of this money. He will therefore not be permitted to say in his defense that it was not her property. Even in civil suits, a tenant cannot dispute the title of his landlord. It is no defense in embezzlement to contend that the property was unlawfully acquired by or for the principal/'

The record discloses in this case that the only person that asked the defendant to act in the capacity of trustee was R. C. Oldham, chairman of the board of trustees of McCurtain county. — Mr. Oldham, who stated that he told the defendant they would have to have a trustee and asked him if he would not serve in that capacity. It is not denied that the defendant assumed to act as trustee or agent and that the funds belonged to McCurtain county; that he failed to pay the same over when requested; and that he converted the same to his own use. The information properly stated a cause of action against the defendant, and the court did not err in overruling the objections of defendant to the introduction of testimony by the state in support of the allegations in the information.

It is next urged by the defendant that instructions 4 and 5, as given by the court, incorrectly stated the law as applicable to the case. After a careful reading and study of the two instructions complained of by the defendant, we hold they fairly stated the law as applicable to the facts in this case, and that the court did not err in refusing to give instructions Nos. 1, 2, 3, and 4, requested by the defendant. To set out these instructions in full in this opinion would extend it to a greater length, than we deem necessary under the facts in the case. The court in his general instructions fairly declared the law applicable to this case, and it was not error for the court to refuse the instructions requested by the defendant. Some question is raised as to right of the county treasurer to buy judgments against the county to be paid out of the funding bond fund. It is shown that the defendant received the money for the purpose of paying off the indebtedness of the county, and the defendant is not in a position to question the right of the county to purchase judgments against it. The verdict is in proper form, and the court did not err in receiving the same. After a careful examination of the entire record, we hold that the defendant was accorded a fair and impartial trial; that the court did not commit a reversible error in the trial of the case; that the evidence is sufficient to sustain the judgment.

The case is affirmed.

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


author: 'CHAPPELL, J.

text:
    LEE LOOPER v. STATE.
    No. A-6484.
    Opinion Filed April 13, 1929.
    (276 Pac. 503.)

      Allen & Allen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   'CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Me-Curtain county on a charge of murder, and was sentenced to imprisonment in the state penitentiary for the term of his natural life. The information properly charges the defendant with the crime of murder.

The undisputed facts in the case appear to be: That the defendant and the deceased were living together in the same house at the time of the homicide, and that the deceased- was the stepfather of the defendant, the defendant having married the daughter of a former marriage of the wife of deceased. That on the morning of April 12th a difficulty arose between the defendant and the deceased. The defendant had been engaged by the deceased to assist him in making a crop, and some time prior to the death of the deceased a misunderstanding had arisen, and the defendant had been making some arrangements to move away from the home of the deceased. That this misunderstanding culminated on the morning of the homicide in the deceased taking over the interest of the defendant in the crop. That, after the difficulty on the morning of the homicide, the deceased went to the field where he was listing land, and that deceased continued to work at this job until the time he was shot. That the defendant left the place shortly after the misunderstanding and returned about 1 o’clock and spent the afternoon in the house and about the place. That a person who was claimed to be the defendant concealed himself under a bank near the edge of the field where the deceased was listing- land, and, when the deceased had turned at the end of the row, which brought deceased nearest the person concealed, a shot was fired, and deceased received a wound in the back of the head and neck which later proved fatal. That this homicide occurred at about dusk in the afternoon. The team of deceased was seen coming from the field by the wife of deceased and this defendant and some neighbors who had come to the place. A search for the deceased led to the discovery of him lying near his plow, fatally wounded from No. 4 shot fired from a shotgun. That the deceased was unconscious when found. While deceased was being carried from the place where he was shot to the house, he said, “That’s a dirty deal to kill a man over a team.” After deceased was carried into the house, the doctor shook him to rouse him, and asked him, “Who shot you, old man?” He answered, “Lee Looper.” The doctor, not understanding what he said, asked him again who shot him; he said, “Lee Looper.” Deceased became unconscious shortly after this and never again spoke an intelligible word. An investigation by the sheriff’s office led to the arrest of the defendant, his trial, and conviction for the crime.

When the case was reached for trial, the defendant requested the court to permit him to withdraw his plea of not guilty and permit him to file a motion to quash and set aside the information. This request was denied by the court, and is now assigned by defendant as error.

In the first assignment of error the defendant complains that the indorsement oh the complaint filed with the justice of the peace was not sufficient, and that the district court did not acquire jurisdiction of the case for that reason. The justice of the peace before whom the preliminary hearing was had, filed a transcript of the proceedings, duly certified, with the clerk of the district court of McCurtain county. The part of the transcript material to this case reads as follows:

“On this 21st day of April, 1926, comes on this case for trial, the State being represented by Tom Finney, County Attorney, and the defendant being present in his own person, and by his Attorney, Douglas Allen, both sides announce ready for trial. Defendant waived arraignment, and entered his plea of not guilty. Hearing the testimony of witnesses, it is believed by the court that the crime of murder has been committed, and that L. 0. Looper is guilty thereof. It is, therefore, ordered, adjudged and decreed by the court, that defendant, Lee Looper, be held to await the action of the District Court, and that he be committed to the jail of McCurtain County until released by the proper court.”

In the case of Tucker v. State, 9 Okla. Cr. 590, 132 P. 826, this court in the body of the opinion says:

“The failure of the committing magistrate to indorse his findings and order in the first instance on the preliminary complaint is not jurisdictional, and where the proper order has been made and entered, and is shown by the transcript transmitted to the superior court, that in itself is sufficient to show jurisdiction.”

In the case of Williams v. State, 6 Okla. Cr. 373, 118 P. 1006, this court said:

“It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by ^ the examinating magistrate that a felony has been committed, and that there is probable cause to believe that defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.”

In the case of Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164, paragraph le, of the syllabus, this court held:

“It is discretionary with the court to permit the withdrawal of a plea of not guilty for the purpose of allowing a defendant to file a motion to set aside an indictment, and such action will not be reviewed upon appeal, unless an abuse of this discretion is shown.”

It appearing that the transcript of the justice of the peace was sufficient to confer jurisdiction, the defendant having had from the 24th day of April to: the 12th day of August in which to file his motion to quash the information, there was no abuse of discretion by the court in overruling the request.

The defendant next urges that the court erred in ad-matting certain statements made by deceased to the doctor, as dying declarations. Dr. McBrayer, the physician who attended the deceased immediately after the shooting, testified:

“Q. Where did you find Mr. Lung when you got there? A. I found him in the field about a quarter of a mile from the house.
“Q. What was the nature of his injury? A. I found that he had been shot in the back of the head and back of the shoulder with a shot gun.
“Q. Was he afterwards moved to the house? A. Yes, sir, right away after I saw him.
“Q. Did you say he was shot in the back of the head ? A. And back of the shoulder — head, neck aftd shoulder.
“Q. What was his condition with reference to being serious or otherwise? A. It was serious.
“Q. Did he at that time have any chance to live? A. No, sir.
“By the Court: Doctor, what conversation did you have with this man ? A. I took him by the shoulder after we carried him to the house; I said “Old man who shot you?” and he said, “Lee Looper.” I didn’t understand him and I said “What did you say?” and he said, “Lee Looper”; I turned and asked them who Lee Looper was and they said his son-in-law.
“Q. Did you have any other conversation after that? A. That was about the only plain thing he answered; he answered a few questions but was semi-conscious; he didn’t talk much, possibly a few more words but not to me.
“Q. He was in a stupor or semi-conscious? A. Yes sir, he was in a semi-conscious condition when he did it. They do answer questions sometimes when you holler quick and that is the way I did.
“Q. Were you there when he died? A. No. he was living the next morning, he possibly died the next night.
“Q. What was his condition then? A. Still worse, entirely unconscious; I saw he wouldn’t live but a few hours; the next time I saw him he was dead. I saw him three times.”

The rule for the admission of dying declarations is that the deceased must make the declaration when all hope of recovery has been abandoned and under the conviction that death is inevitable and near at hand. This court has repeatedly held that the manner of proving and the proof necessary to establish the statement of the deceased person as a dying declaration may differ in different cases, depending largely upon the condition of the party making the declaration at the time he made it.

In the case of Poling v. State, 12 Okla. Cr. 27, 151 P. 895, Ann. Cas. 1918E, 663, this court held:

“Dying declarations may be made by signs as well as by words, and where the declarant is in a dying condition, and so injured as to be unable to speak, the fact that in response to questions her answers were indicated by nodding and shaking her head, and pointing her finger, forms no objection to the competency and admissibility of such declarations.”

In Smith v. State, 5 Okla. Cr. 282, 114 P. 350, this court said:

“Where it is shown by the testimony that immediately after being shot the deceased exclaimed, ‘Ed Smith has killed me,’ and where the deceased subsequently said to the physician who attended him, T am all in,’ and never at any time after receiving the fatal wound expressed any hope or expectation of recovery, this, in connection with the fatal character of the wound received, justified the trial court in receiving the statements made by the deceased as^ dying declarations.”

In Blair v. State, 4 Okla. Cr. 360, 111 P. 1004, this court said:

“In response to the question, ‘Did you see who shot you?’ the deceased in his dying declaration answered, ‘Joe Blair, from ambush, two shots.’ Held, tfiqt the answer on its face was a statement of fact and not a mere opinion, and was admissible.”

The answers of the deceased in this case to his doctor were properly admitted as dying declarations. We are of the opinion that they were further admissible as part of the res gestae.

In the case of Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416, paragraph 6 of the syllabus, this court held as follows:

“On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal act, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of the res geste.”

In the body of the opinion, page 79 of 12 Okla. Cr. (151 P. 1189), this court said: “We are inclined to think that the declarations of the deceased made between the time the fatal shot was fired and the taking of hi's statement in writing by the witness Jones, were competent and admissible as a part of the res geste. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res geste. Each case must necessarily depend on its own circumstances to determine whether the facts offered were really part of the same continuous transaction.”

In the case of Missouri, Kansas & Texas Railway Co. of Texas v. Moore, 24 Tex. Civ. App. 489, 59 S. W. 282, the Court of Civil Appeals of Texas held, in substance, that, where the deceased had been unconscious from the time of the injury up to the time the statement was made, the statement was part of the res geste. The syllabus, paragraph 1. is as follows:

“Declarations by one injured as to what caused the accident, though made several hours thereafter, are admissible as part of the res gestae, the injury being such as to occasion immediate unconsciousness, he having been unconscious when found, a few minutes after the accident, and having of his own accord made the statement immediately on regaining consciousness.”

Under the facts disclosed in this case, the statements made by the deceased were part of the res gestae and properly admissible as evidence against the defendant. The trial court therefore committed no error in the admission of deceased’s statements.

Defendant next complains that the court erred in instructing the jury with respect to the declarations of the deceased. The instruction is as follows:

“There has been admitted in evidence before you a statement of Arthur Lung, purported to have been made by Arthur Lung, to the witness, Dr. McBrayer. You are instructed that before you can consider the statement of said Arthur Lung, if you believe that he made a statement to the witness McBrayer prior to his death, that you must believe and find from the evidence beyond a reasonable doubt that the said Arthur Lung believed or realized, prior to the time he made the statement, that he was in such a serious condition on account of the wounds afflicted on his body that he would not recover or that he would die from the effects of said wounds.”

In the case of Willoughby v. Territory, 16 Okla. par. 3, p. 577, 86 P. 56, 8 Ann. Cas. 537, the court held:

“Where in the trial of a criminal case, the court as a matter of law passes upon the competency of dying declarations and finds that! they are competent to be submitted to the jury, and they are submitted to the jury, it is not error for the court by an instruction, to again submit the question of the competency of such declarations to the jury for their consideration.”

As the court, after hearing the preliminary testimony and argument of counsel, had decided that the evidence was sufficient to admit the statements of deceased as dying declarations, it was not error for the court to submit the question of the competency of such declarations to the jury for their consideration.

The defendant complains of other errors, but they are without merit. No complaint is made as to the sufficiency of the evidence, and an examination of the record discloses that the evidence is amply sufficient to support the verdict of the jury. No substantial errors of law appearing upon the record sufficient to warrant a reversal, the cause is affirmed.

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


author: ■CHAPPELL, J.

text:
    CHARLES T. COOPER v. STATE.
    No. A-6528.
    Opinion Filed April 13, 1929.
    (276 Pac. 498.)
    John L. Gilson, A. B. Couch, and George M. Frittz, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ■CHAPPELL, J.

The plaintiff in error, Charles T. Cooper, hereinafter referred to as defendant, was convicted in the district court of Texas county of the crime of grand larceny, and sentenced to serve one year in the state penitentiary.

When the state rested, the defendant demurred to the evidence offered by the state for the reason that it was wholly insufficient to sustain a verdict of guilty, which demurrer was by the court overruled. The defendant moved for a new trial, and assigned the insufficiency of the evidence as a ground for such new trial, which motion was overruled and exceptions saved.

The first question raised is that the evidence is insufficient to sustain a conviction.

In the case of Harrison v. State, 10 Okla. Cr. 210, 135 P. 948, this court says:

“When the evidence disclosed by the record tends reasonably to support the verdict of the jury, such verdict will not be disturbed by this court on appeal.
“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the proposition that as a matter of law the verdict is contrary jto the evidence.”

In the case of Halsey v. State, 42 Okla. Cr. 221, 275 P. 405, paragraphs 1 and 2 of the syllabus are as follows:

“1. This court will not grant a new trial on the ground of insufficient evidence to sustain the verdict of the jury, where the evidence is conflicting and where there is sufficient evidence in the record to support the verdict, if the jury believed the testimony offered by the state.
“2. Where a conviction is had upon circumstantial evidence, if the facts proved are consistent with each other and with the theory of the guilt of accused, and inconsistent with innocence, and sufficient to convince the jury beyond a reasonable doubt of the guilt of accused, they are sufficient.”

The evidence in the case at bar is sharply conflicting. If the jury believed the evidence of the state, it was sufficient to support the verdict of guilty. If the jury believed the evidence offered by the defendant, they could have acquitted him. Where the evidence is conflicting and where the evidence offered by the state, although partly circumstantial, is sufficient to support a verdict of guilty, this court will not disturb a judgment rendered on such verdict.

The defendant further complains of the admission of certain incompetent and hearsay evidence which was prejudicial to the substantial rights of the defendant. The rules of this court require counsel to set out in full in his brief the alleged hearsay evidence. This counsel has failed to do. We have carefully examined the record, and are unable to find any material errors of the court in the admission of evidence.

The evidence being sufficient to support the verdict of the jury, and no errors of law appearing upon the record affecting Che substantial rights of the defendant, the cause is affirmed.

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


author: PER CURIAM.

text:
    ALVIN TORRENCE v. STATE.
    No. A-6701.
    Opinion Filed April 13, 1929.
    (276 Pac. 498.)
    Walter Mathews, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted on a charge of having the possession of intoxicating liquor, and his punishment fixed at a fine of $225 and imprisonment in the county jail for a term of 40 days.

The record discloses that at the time charged certain officers, having information that intoxicating liquor was to be delivered, were following the car of one Bob Wing-field. He drove the car to a place near where defendant was seated in a car and stopped, and was engaged in a conversation with him when the officers came up. A five-gallon jug of whisky was found about four steps from defendant’s car. Prior to that time Wingfield was seen talking to defendant in the town of Cushing, after which defendant was seen to drive away, and Wingfield later drove to where defendant was in his car as stated. These and other circumstances not detailed were sufficient to lead the jury to reasonably and logically find defendant guilty. No fundamental or jurisdictional error is apparent.

The case is affirmed.


text:
    SAM C. LAMBERT v. STATE.
    No. A-6750.
    Opinion Filed April 13, 1929.
    (276 Pac. 243.)
    ■Guy D. Talbot, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Alfalfa county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to serve a term of 60 days in the county jail and pay a fine of $250'.

The judgment was entered in May, 1927, and the appeal lodged in this court in September, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

The record discloses that at the time charged certain officers with a search warrant went to the premises of defendant, and about 110 yards from the residence house found a barrel of wine in a small cave on top of which was a pile of fence posts. While analysis was not necessary, one was made, and the wine was shown to contain 13 per cent, of alcohol measured by volume. 'The defendant was maintaining the county poor farm, and one of the inmates sought to take the responsibility by testifying that he made the wine without the knowledge of defendant. The jury evidently did not believe his testimony. No jurisdictional or fundamental error appears.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.