text:
    SAM HENDRICKS et al. v. STATE.
    No. A-3928.
    Opinion Filed Feb. 3, 1923.
    (212 Pac. 330.)
    (Syllabus.)
    1» Gaming — Evidence Supporting Conviction. Evidence examined, and held sufficient to support verdicts and judgments.
    2. Gaming — Witnesses—Conviction for Crime to Affect Credibility of Witness — Gambling as a Crime. Under the statute of this state conviction for crime may be shown for the purpose of affecting the credibility of a witness. Gambling is a crime within the statutory definition, of Crimea

      3. Appeal and Error — Questions Calling for Incompetent Testimony not Prejudicial! Where Objections! Sustained. The fact that the county attorney ashed some questions which may have called, for incompetent testimony is not prejudicial error, where the trial judge promptly sustained objections and no incompetent' evidence Was permitted to go to the jury, and there, was no such repeated ashing of these questions and exceptions to the ruling of the trial judge by the county attorney that amounted to prejudicial misconduct.
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
    Sam Hendricks, Roy Tiller, and Land Flinn were convicted of gambling, and they appeal.
    Affirmed.
    Grump & White, for plaintiffs in error.
    Georgel F. Short,. Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiffs in error (hereinafter referred to as defendants) were jointly tried and convicted on January 8, 1921, of the crime of gambling, and the defendants Hendricks and Tiller were each fined the sum oft $50, to which was added imprisonment in the county jail for a period of 10 days. ' The defendant Flinn’s punishment was fixed at a fine of $50. From judgments rendered in conformity with the respective verdicts they prosecute a joint appeal to this court, and assign and rely upon the following alleged errors: (1) That the'verdict is contrary toi the law and, evidence and not sustained by sufficient evidence. <j(2) Misconduct on the part of the county attorney in asking witnesses for the state if they knew the general reputation of the place where the state alleged the offense was committed. (3) That the court erred in permitting the county* attorney, over defendant’s objection, to ask each of the defendants whether or not he had been convicted of the crime of gambling.

Ray Kirk, testifying on behalf of the state, testified in substance that he was on the 2d day of November, 1920, a deputy sheriff of Muskogee county, Okla.; that on that date he saw the defendants on Second street at the Long Horn Bar; that he saw these defendants and others standing around a pool table; that he was within about four feet of them, and that they were shooting craps; that he saw the dice come out on the table out of somebody’s hand; that he saw money on the table; that he reached over one of the; shoulders, and they all scrambled to see who would get the money; that some other parties in the crowd got away through some windows; that he got 35 cents off of the pool table, and some paper money off of two of the defendants; that he got some dice there, some off of the defendant, Roy Tiller, some off the floor, and some off the table; that in playing the game of craps one man shoots at a time. He bets what he feels able to bet, and he throws the dice if somebody about the table bets he could not pass. If the marks or numbers on the dice show 7 or 11 on the first throw, he wins the money. If it should be 2 or 3 or 12, he loses the money. In either event, he has an opportunity to bet again,, and if he should not throw 2, 3, 12, 7, or 11, he continues to shoot until he makes his point or throws 7. If he makes his point, he wins the money, and if he does not, he is off, and the dice pass' on to the next one. It is possible in a game of craps for money to be bet and won and lost; that, while! only one man throws the dice at a time, bets may be made between others, and more than two can bet at the same time, where the game is what is called an open game, but the game can be run by a game keeper, and a rake-off taken.

Hobart Addington testified for the state that he accompanied Ray Kirk to the Long Horn Bar on the date in question, • but did) not go upstairs with Kirk; that there was some kind of a buzzer downstairs just as one entered the building, and that there wag a man sitting close to the buzzer whoi tried to get his feet on the pin that pushed the buzzer, but the witness went in behind Where the man was sitting and got close to' the buzzer and Kirk then went right on upstairs.' Each of the defendants denied that they were engaged in any crap game. They testified that there were several people in the room; that the officers eaime in, and that no onei was shooting craps that they saw. They denied seeing any money on the pool table. Defendant Hendricks, on being asked if he had ever been convicted for gambling in that city, admitted that he had pleaded guilty to such charge. Defendants Tiller and Flinn each denied that they had ever been convicted of such charge, and there was no proof that they ever had been previously convicted of that charge. Defendant Tiller admitted that the officers got $50 in greenbacks off his person, but denied that any of it was at any time on the pool table or was being used by him to make bets with. Defendant Flinn stated that the officers took $10 out of his poeketbook, but denied that he had ever used any of it in shooting craps.

We think the evidence amply sufficient to sustain these convictions. Kirk, the deputy sheriff, testified that he got within four feet of these parties, and saw them shooting craps for money, and the circumstances of their evident confusion and attempt to escape upon the discovery of his presence among them tends strongly to corroborate Kirk in his statement that these defendants, with others, were around the pool table on that occasion shooting craps for money.

There is no merit in the second assignment of error. Section 585, Comp. St. 1921, among other things, provides that conviction of crime may be shown for the purpose of affecting the credibility of a witness. While the foregoing statutory provision is contained in the Civil Code, it is applicable also to criminal cases under the provisions of section 2699, Comp. Sti 1921, of the Criminal Code. Section 1501, Comp. St. 1921, of the Criminal Code, defines a crime to be an act or omission forbidden by law to which upon conviction is annexed either of the following punishments: First, death; second, imprisonment; third, fine; fourth, removal from office; fifth, disqualification to hold and engage in any office of trust or profit. Gambing is a erime within the definition above given. That it is proper on cross-examination to ask a witness if he has ever been convicted of crime is sustained by the following authorities: Key v. State, 10 Okla. Cr. 206, 135 Pac. 950; Busby v. State, 10 Okla. Cr. 343, 136 Pac. 598; Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621.

The third assignment of error relative to misconduct on the part of the county attorney in asking witnesses for the state if they knew the general reputation of the place where the alleged offense was committed’ is notj sufficient ground for reversing these judgments. The record discloses that upon objection by defendant’s counsel the court promptly sustained the objection, and no evidence was permitted to go before the jury on the question of the general reputation of the place. Further, there was no such repeated asking of these questions and exceptions to the ruling of the court by the county attorney, such as was. held to be prejudicial misconduct in the case of Pickrell v. State, 5 Okla. Cr. 391.

In Harkins v. State, 14 Okla. Cr. 440, 172 Pac. 469, where the conviction was for a felony with a term of 50 years’ imprisonment, this court held:

“The fact that the county attorney, on cross-examination of the defendant, asked a few questions which called for incompetent answers, does not of itself establish prejudicial error.”

Finding no reversible error in the record, the judgment as to each defendant is affirmed.

DOYLE and BESSEY, JJ., concur.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    ROY COLGLAZIER v. STATE.
    No. A-3924.
    Opinion Filed Feb. 3, 1923.
    (212 Pac. 332.)
    (Syllabus.)
    1. Rape — Evidence Sustaining Conviction of Assault with Intent to Rape Child. Evidence examined and held sufficient to support \a conviction of assault with intent to rape a female child under ithe age of consent.'
    2. Evidence — Conduct of Accused when Informed of Accusation, His Subsequent Flight, and Explanation Thereof Admissible. Evidence of defendant’s conduct and actions, when first informed that he is accused of an offensey and of his subsequent flight, is admissible against him, and the circumstances surrounding such conduct are res gestae thereof. Defendant’s explanation of such conduct is likewise admissible.
    3. Trial — Requested Instruction Properly Refused If Covered by General Charge. It is not error to refuse a requested instruction, correctly stating the law applicable to the issues, if such law is sufficiently covered in the general charge.
    Appeal from District Court, Payne County; Arthur R. Swank, Judge.
    Roy Colglazier was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    John F. Vaughan, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiff in error, Roy Colglazier (hereinafter referred to as defendant), was convicted in the district court of Payne county on the 22d day of October, 1920, of the crime of assault with intent to commit rape and sentenced to serve a term of five years’ imprisonment in the state penitentiary.

The information, in substance, charges that on the 18th day of May, 1920, one Roy Colglazier, did then and there willfully, unlawfully, andj feloniously commit an assault upon the person of one Maxine Moore, with his hands, seize, hold, strike, wound, and illtreat her,' the said Maxine Moore, with the willful, unlawful, and felonious intent of him, the said Roy Col-glazier, then and there to carnally know, ravish, and have sexual intercourse with her, the said Maxine Moore, she, the said Maxine Moore, being then'and there a female child under the age of 16 years and of the age of 11 years, and not the wife of him, the said Roy Colglazier.

The alleged offense occurred in the city of Stillwater, the county seat of Payne county, some time between 5 and 6 o ’clock on the afternoon of - the 18th of May, 1920. The prosecuting witness detailed the circumstances of the crime as follows^

“Q. Then what, if anything, did Roy Colglazier do? A. He went up stairs. Q. Then what, if anything, did he do? A. He told me to come up there. Q. Did you' go up there? A. Yes, sir. Q. When you got up'there what was Roy Colgla-zier doing, if anything? A. He was in his bedroom. Q.' Go ahead and- tell the jury? A. He was in his bedroom' and had his trousers off, and I stepped in the door, and said, ‘Oh.’ He stepped back. Q. Then what, if anything, did Roy Colglazier do ? A. He stepped to the other side of the room. Q. Will you explain to the jury — where were you then? A. At the head of the steps. Q. Did Roy Colglazier come to you then? A. He stepped to the other side of the room. Q. Then what, if anything, did he do? A. He says, ‘Wait a minute until I get my pants on.’ Q. Then what did he do? A. He said, ‘Come in the bedroom and look in the bottom drawer.’ Q. Did you go in? A. Yes, sir. Q. Then what happened next? A. He says, ‘We will go and look in some of Elma’s playthings.’ Q. Did he have his pants on? A. Yes, sir.< Q. Then what, if anything, did he do? A. He stepped back and let me in Elma’s room, and we looked in some boxes, and the book wasn’t there. Q. Then what happened? A. He shut the door. Q. Why did he shut the door? A. K don’t know. Q. Where were yon and he then? A. I was in this rooim and soj was he. Q„ Then what, if anything, did he do ? A. He sat down; on a' stool. Q. Then what, if anything, did he do ? A. He took hold of my shoulders, and drew me up to him. Q. What, if anything, did he do then? A. He asked me if I would take off my panties, and he would take off his. Q. What, if anything, else? A. And if 1 would let him see me, he would let me see him. Q. What, if anything, else? A. And he put his hand on me. Q. Show the jury where he put his hand on you? A. Just like that (indicating to the jury). Q. Then what, if anything, did he do? A. I said, ‘I want to go down and play with Lueile and Gladys,’ and I says, ‘I will scream for Lueile and Gladys, if you don’t let me go. ’ Q. Then what did he do ? A. Got up and stepped to the door and says, ‘You promise you won’t tell anybody I had my pants off.’ He said that twice. Q. What did you tell him? A. I says, ‘I won’t.’ Q. You say he took holdi of you and pulled you up to him. A. Yes, sir. Q. Tell the jury what he did then, just how; he pulled you up? A. He took hold of my arms like this (indicating) and brought me up between his legs. Q. What did you dol when he pulled you between his legs? A. I told him I wanted to go play; with Lueile and Gladys, and I would scream for Lueile if he didn’t let me loose. Q. What did he do then? A. He asked me if I would take down my panties, and he would take off his. Q. Then what did he do? A. If I would let him see me, he would let me see him. Q. Then what did you do? A. I told him to let me loose; I wanted to go play with Lueile. Q. Then what did he do ? A. He said twice, ‘Don’t tell any one I had my pants off.’ Q. Then what did he do? A. He opened the door, and I went down stairs and out doors. Q. Who did you find out doors ? A. Lueile Hethering-ton. Q. Anybody else? A. No,' sir. Q. Who did you first tell about this afterwards? A. I told Lueile and Gladys. Q. How soon did you tell them after this happened? A. I went over to where we were playing. Q. Then who did you tell next, if you told any one? A. I told my mother.' Q. How long after this happened until you! told your mother? A. About 15 minutes afterwards. Q. Where was your mother when you told her? A. In the house. Q. What, if anything, were you doing when you saw Gladys and Lucile? A. I told them, then I went home. Q. What, if anything, were you doing when you went down stairs from Roy Colglazier? A. I went out doors and met Lueile Hetherington at the corner of the house, and she asked me what I was crying about. Q. Were you crying at the time? A. Tes, sir.”

The defendant, as a witness in his own behalf,, explained what occurred on that occasion as follows:

“Q. State your name? A. Boy Colglazier. Q. Tell the jury what happened in this matter? A. I was there at home about 12 o ’clock, and this little' girl come along and asked for ai book. ]j told her what was the name of the book, and she said she didn’t know. I says, ‘I don’t know nothing about the books; my folks are not at home, ’ and I says, ‘You find out thd name of it and come back and let me know. ’ Then I says, ‘I will see if I can find it.’ I went back to work, .and about 5:30 she came back and I was feeding the chickens'. Pretty soon Dorothy Moyne Shideler was there, and I says, ‘Where is Maxine?’ and she says ‘over to Gladys’ playing.’ She called Maxine and Maxine caime over and asked me what I wanted. I asked her for the name of the book, and she told me, and I told her to go look for it. She went in the front room to hunt for the book. I went up stairs to change my clothes, and I was sitting on the bed] with my trousers off: and taking off my shoes. She run up stairs and says, ‘ Oh. ’ Q. Did you call her up there? A. No, sir. I went and stepped to the other side of the room and pulled! the door kinda to and she couldn’t see in my room. I says, ‘You go look in! my sister’s room.’ I says, ‘It ain’t in my room.’ She went on in, there, and when I got my clothes on and started down stairs, there she stood crying, and didn’t say nothing. I says, ‘Do want to go?’ and she didn’t say nothing. I says, ‘Don’t go out crying and tell anybody you seen me with my pants off, and she says, ‘All right.’ Q. Did you go in the other room with her? A. No, sir. Q. You heard her testify that you asked her to let you see her? A. Yes, sir. Q. Is that true? A. No, sir. Q. You heard her testify that you pulled her up between your legs? A. Yes, sir. Q. Is that true? A. No, sir. Q. Did you ever assault her in that way? A. No, sir. Q. Did you have any intention of having intercourse with her? A. No, sir.”

■ Gertrude A. Moore, the mother of the prosecutrix, testified that her daughter Maxine was 11 years of age, and that about 5:30 o ’clock on the afternoon of the 18th of May, 1920, her daughter came home crying and said she wanted to tell her something, and then told her what had happened.

Lucile Hetherington, witness for the state, testified that she was 12 years old, that she saw defendant on the 18th of May, 1920, in the yard! at his house about 5 o ’clock in the afternoon, and that she heard defendant tell Dorothy Moyne Shideler to tell Maxine Moore to come over there, and that Dorothy told Maxine, and that Maxine went over to defendant’s house.

Ralph Woods, a witness for the state, testified, in substance :

That he knew defendant and was with him on the 18th of May, 1920; that he first saw him down at the City Meat Market about noon and went with defendant to take two orders of meat to the north part of town, and after dinner went back to the butcher shop, and then! the witness testified, over objection by defendant’s counsel, that the colored butcher told Roy that there was afine looking man come in there with a blue serge suit on, and a boy came in with a soldier suit on, and that Roy went out of the back door and then came back in the butcher shop and was hollering something and got a knife and said, “stand back.” Mr. Moore said “Why don’t you' come in there” and he said, “I got a knife,” and they stood back there a little while and then went in the shop. Mr. King was there and made Roy come in the shop and wanted them to stop. Then, went up to the front end of the shop and Mr. Moorei told him to come to his office and he would settle it. Then we had to get some meat up to the north end of town, then we went to the Service Garage and Roy asked for Mr. Fletcher, and he wasn’t there. Then we came back up town and found out where the orders went. I took that order up there, and Roy got in the ear with me, and I went to drive his car, and Mrs. Baron and Mrs. Moore got in their ear and followed us, and I was trying to outrun them. I asked Roy what was the matter, and he didn’t say much, and I asked him again, and he said she came up to his room where he was undressing, and he got hold of her arm and made her promise, and he kept driving fast.

On cross-examination the witness testified that the men that came in the butcher shop were H. G. King and Alphonzo Taylor, and that the men looking for defendant were Dr. Moore (father of prosecutrix) and Mearle Barron; that they were chasing defendant and said for defendant to come back and they would give him a good licking. "Witness would not say for sure they had said they were going to kill defendant.

Sam Dykes, a witness for the state, testified that he lived in Stillwater, knew the defendant and recollected of hearing about the trouble between the defendant and Maxine Moore, and then witness testified as follows:

“Q. What did Roy say to you about it? A. He was trying to get out in the country. He was afraid of Mr. Moore. I asked him what he was running for, and he said that girl come up to his room while he was dressing. Then we stood out there about an hour or more, and I kept on ■ questioning. And he said he 'grab and throw.’ I don’t know what he meant.
“By Mr. Vaughan: Move that it be stricken out as incompetent, irrelevant and immaterial, don’t have any meaning.
“By the Court: Overruled, exception allowed.
“By Mr. Suman: Q. What were you talking about when he says ‘grab and throw’? A. I was questioning him about it. ,Q. What were you questioning him about? A. Why he was getting out in the country for. Q. Who were you talking about then? A. I didn’t know right then. Q. Did you know why hej was getting out in the country? A. Not until we got out there. Q. What did he tell you? A. He said that Maxine Moore came up to his room while he was dressing. That is all he said. Q. Did he tell you why he was getting out in the country? A. No, sir. Q. How did you come to go out? A. We were up to the butcher shop, and I never went in the butcher shop with them. I was outside sitting in the car. And I seen somebody in there doing something to Colglazier, and I went in there, and Mr. Moore and them were arguing in there. I went over to the Central Garage, and went to take an order, and took Colglazier up to his house. Then we drove on out in the country by the bridge and stayed out there about half an hour, and' then Mart Fletcher come along and took us out about five miles further. Then he told me that story. That she come up to his room while he was dressing.”

E. L. Moore, witness for the state, testified that he lived in Stillwater; that hej was father of prosecutrix, and that she was 11 years old; that he first heard about the trouble about 6 o’clock in the evening, learned it through his wife; that Dorothy Moyne Shideler was at that time under quarantine for diphtheria.

Martin Fletcher, witness' on behalf of the defendant, testified that he knew Roy Colglazier; that Roy| worked for him, quit work about 5 o’clock on the 18th of May, 1920. Then the witness testified as follows:

“Q. On the day that this crime was alleged to' have been committed you seen him at other places? A. What time do you mean? Q. On the day this thing was charged to have been committed? A. Yes, sir. Q. Tell the jury? A. I saw him after I went home, and back down town, about 6 o’clock. Q. Where did you see him next? A. Down on the street. Q. What was he doing? A. He and Thomas Yoder were talking. Q. Did you see him after that? A. No, sir; not until the next morning. Q. Where? A. He come back to work the next morning for me. Q. Did you see him any place else on that day? A. He come back and worked about an hour that morning, and Mr. King in the city market wanted him to work for him. Q. Did you see him after that? A. I never saw him until about! 1 or 2 o’clock. Q. Where was he then? A. He was out right north of town. Q. Do you know why he was there, or how he happened to be there? A. He said the Woods boy had taken him out there in a car. Q. You went out there with him? A. No, sir. Q. Where did you go after that? A. About 1:30 or 2 o’clock the Woods boy came by. Q.' Then what did you do? A. I talked about 30 minutes, and decided I better* go see what was the matter, and the Woods boy told pie he was in a peck of trouble. Q. Then what did you do? A. I went down; the street with the laundry ear; then I went to the garage and got my car and went out there. Q. Who did you see? A. Roy Colglazier and this Dykes boy. Q. What, if anything, was he doing? A. Standing at the side of the track. I asked him what was the matter. Q. Did he tell you what the trouble was? A. He' didn’t tell me exactly. Q. What did you do? A. I told him to get in the car and go on* up the road. Q. Then what happened? A. He got in, and we drove on up the road. Q. Just tell what you and he did? A. We went up the street north on’ the section line for about three of four miles, and then we turned west. Q. Did you tell Roy yourself what to do? A. I told him what I would do. Q. Did he do what you told him to do? A. Yes, sir. Q. What did he do ? A. He stayed out there until I came back after him. Q. Then where did he go? A. He came back to town. Q. Who was with you? A. The Dykes boy and Joe Bour-dette. Q. And he came back with you? A. Yes, sir. Q. And lie did that upon your advice? A. Yes, sir.”

Cross-examination by Mr. Suman:

“Q. Did you go out there purposely to bring Roy bank into town? A. At which time? Q. The time you first went out? A. No, sir; I went out to see what he wanted. Q. He had sent in for you? A. Yes, sir. Q, And when you got out there, Joe Bourdette was out there? A. No, sir; the first time I went out, he sent for me to come out. I din’t know what he wanted or anything. Q. Then you went out again? A. Yes, sir. Q. And Joe Bourdette was out there? A. No; he went out there with m'el in the car. Q. Did he go out as an officer in that ease? A. Yes, sir. Q. Did he arrest him when he went out? A. No, sir. Q. Did. he have a warrant when he went out? A. I couldn’t say. Q. At the time you went out, you say you found him out there with whom? A. The Dykes boy. Q. Do you know why Roy went out there in the first place? A. I did after he told me. Q. Why did he say he went out there? A. He said they accused him of attempt to rape, or were trying to, or something) like that.”

Redirect examination by Mr. Vaughan:

“Q. Did he tell you also, how he found it out, what they accused' him of? A. I don’t remember, but he mentioned something, them coming after him over at the meat market. Q. Did he tell you they told him up there—
“By Mr. Suman: Objected to as leading and Suggestive.
“By the Court: Sustained, exception allowed.
“A. The Woods boy came by and told me to come out to the bridge, and I went out there.
“By the Court: Q. You saw the defendant? A. Yes, sir. 0. And had a conversation with him? A. Yes, siír. Q. Tell the jury what was said? A. I asked what was the trouble. He told me they accused him of attempted rape, or something to that effect. We drove along for half a mile without saying a word. I says, ‘I don’t know what to do about it, whether you are guilty) or n,ot.’ I says, ‘What do you want to do?’ He says, ‘I want to go to my folks.’ They were at Durant. He says, 'I want to get to them, to see what to' do.’ We drove on for a mile and a half or two miles, and we turned back west, and I crossed the. creek, and I says you get out here and stay here until I come back after you at 4 or 5 o’clock, and I will go into town and see what there is to. it. And several asked me where he was. Q. You went back there? A. Yes, sir. Q. Did you have any further conversation with him? A. Yes, sir. Q, Who was with you, if any one? A. The Dykes boy was standing there with him by the bridge on the bank of the creek, and Joe Bourdette was about a block from us in a car. Q. Did you have any further conversation with the defendant? A. Yes1, sir; I told him whaft they wanted him for and asked him if he was guilty. I says, ‘You' know whether you are guilty or not guilty, and, if you are guilty, go back and take your medicine.’ And he says, ‘I would rather go to my folks.’ I says, ‘That is up to you.’ I says, ‘If you run' off: and they catch you, it will make it harder for you.’ I says, ‘Joe Bourdette is in the car.’ He stood there a few minutes, and says, ‘Well, I will go back.’ He says, ‘Mr. Bour-dette, I am going back.’ I don’t know anything else was said before we got back to town or not. I brought him to the sheriff’s office, and left him there. That is all I know about it.”

Error is assigned as follows':

(1) That the evidence is insufficient to warrant a conviction.

(2) The trial court erred in admitting irrelevant testimony over objection of plaintiff in error.

(3) The trial court erred in refusing to give instruction No. 2, requested by plaintiff in error.

(4) Because the punishment is excessive.

Under the first assignment of error, it is contended that the evidence is insufficient, because it tends only to show that the defendant, if he did anything, was merely taking indecent liberties with the prosecuting witness; that it falls short of an attempt to rape her because there is no evidence that the defendant placed his hands' under prosecutrix’s clothes or exposed his person to prosecutrix, and that when prosecutrix asked to be let loose she was let loose.

If the elements of force or noneonsent were material in a prosecution for assault upon a female child under the statutory age of consent, there would be some merit perhaps in the counsel’s contention, but at most it can only be said that the evidence tends to show that defendant did not intend to commit a rape upon the prosecuting witness, by force and against her will. On the other hand, we think the evidence ÍS' amply sufficient to authorize the jury to conclude that it was, however, the intention of the defendant by the acts done by him, as detailed by the prosecutrix, to rape the prosecutrix without force and with her consent. Overt acts indicating such an intention are in evidence here. Whether the defendant had such intention was a question of fact for the jury.

This court in the case of Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111, held:

“In a prosecution for an assault upon a female child under the statutory age of consent, with intent to commit a rape, it is not necessary to allege or prove that the acts were done against her will. Whether she consented, submitted, or resisted is wholly immaterial.”

The conclusion is reached, therefore, that the first assignment of error is without merit.

The second assignment of error relative to the admission of irrelevant testimony has reference to that part of the testimony of the witness Ralph Woods concerning what the said witness told the defendant had occurred in the butcher shop on the next day after this alleged assault, in which the witness detailed the conduct of the defendant upon being told that certain parties had been to the butcher shop looking for him.

It is contended that this was hearsay testimony, and its admission prejudicial to the defendant. We consider this evidence to have been admissible. The conversation was! had directly with the defendant, and evidence of the defendant’s actions and conduct, upon being informed that he was accused of such an offense, and his subsequent flight, was certainly admissible. Flight immediately following commission of an offense is a circumstance often indicating guilt. The defendant attempted to explain his flight in this , ease on the theory that the father of the prosecutrix and his friends were attempting to mob him. The explanation of the defendant, in fact everything he said concerning his flight, was permitted to go to the jury. The jury then was( in possession of all the circumstances andi was in a position to! draw, the proper inferences therefrom'. We find no error prejudicial to the defendant in the admission of any evidence in this case.

The third assignment of error concerning the refusal of the trial court to give requested instruction No. 2 is not meritorious, for the reaslon that the trial court gave defendant’s requested instruction No. 1, covering the same subject-matter and the law applicable thereto, and for the further reason that the trial judge in the general charge to the jury fully covered the law of the ease, in a manner as favorable to the defendant as the evidence warranted.

While the defendant was given the maximum punishment under the law, we find no good reason for modifying the judgment on the ground of excessive punishment.

For reasonsl stated', the judgment of conviction is affirmed.

DOYLE and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    J. P. GORE v. STATE.
    No. A-3956.
    Opinion Filed Feb. 3, 1923.
    (211 Pac. 933.)
    Appeal from District Court, Tulsa County; Prank Mathews, Assigned Judge.
    J. P. Gore was convicted of the crime of grand larceny, and appeals.
    Reversed.
    Thompson & Smith, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the district court of Tulsa county, wherein J. P. Gore was convicted of the crime of grand) larceny and sentenced to sterve a term of two years imprisonment in the state penitentiary.

The Attorney General has filed a confession of error as follows:

“There seems to be no evidence in the record sufficient to connect the plaintiff in error with the taking, stealing, carrying away or the sale of, or participation in the proceeds of the sale whatever. We believe that the verdict of the jury wasl not supported by competent evidence, and that the connection of the plaintiff in error herein with the stealing was. too far fetched to warrant a conviction. We therefore respectfully suggest that the ease should be reversed, with directions to the lower court to dismiss the same, all of which is respectfully submitted.”

It is the opinion of the court, after a careful examination of the evidence, that the confession of error of the Attorney General should be sustained.

While the circumstances are suspicious as pointing to participation by the defendant in the crime of knowingly receiving stolen property, an offense not charged or included within that charged (Ex parte Harris, 8 Okla. Cr. 397, 128 Pac. 156), there is no evidence tending to connect defendant with the original taking of the stolen property.

The judgment is reversed and cause remanded to the district court of Tulsa county for further proceedings not inconsistent with this opinion.


author: BESSEY, J.

text:
    TOM LAYNE v. STATE.
    No. A-3603.
    Opinion Filed Feb. 5, 1923.
    (212 Pac. 328.)
    (Syllabus.)
    1. Judges — District Judge Assigned to Holdi Court Outside His District Held de Jure or de Facto Judge. A special or substitute judge authorized to hold court outside of his. district, by virtue of an 'order made by the Chief Justice' of the Supreme Court ending on a Saturday night, supplemented by another order beginning on Monday following, under circumstances recited in the opinion, was probably a de jure judge during the intervening Sunday.
    a. If not a de jure judge, he was at least a de facto judge during this Sunday, with power to supervise and control the jury and other court officers through executive and ministerial orders.
    2. Same — Supervising Power of Judge During Sunday Inadvertently Omitted from Period of Assignment. This court may look beyond the express terms of the Constitution (section 9, art. 7), and orders made pursuant thereto, to ascertain the true intent and object lof the lawmakers and of the judge acting th'ere-under relating to th'e powers of a special judge, and where such intent and object is manifestly to carry out the lawmaker’s intent, an inadvertent omission of Sunday from the period in which the special judge is authorized to hold court, will not deprive such special judge of supervising poweiy over court officers during this particular Sunday.
    Appeal from District Court, Latimer County; Geo. C. Crump, Assigned Judge;
    Tom Layne was convicted of murder» and he appeals.
    Affirmed.

      Tom W. Neal and Andrews & Anderson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Tom Layne, plaintiff in error, was on March 18, 1919, ini the district court of Latimer county, convicted of the murder of Powell Bobo, and sentenced to imprisonment in the state penitentiary for life. Plaintiff in error appeals.

Both the appeal and an application for a writ of habeas corpus, challenging the jurisdiction and authority of the Honorable George C. Crump, assigned judge, to preside at the concluding portion of the trial of the case after the 15th day of March, 1919, have been pending here for many months, and this question of jurisdiction is the only issue involved. No action has heretofore been taken in either case, because the plaintiff in error has been at liberty on parole or leave of absence, and hence not subject to the orders of this court.

The special judge in this case deraigned his power and authority tq sit as trial judge herein by virtue of the following orders made by the! Chief Justice of the Supreme Court of this state, to wit:

“It having been made to appear) as provided in section 8, art. 7, of the Constitution, that the public business requires it: Therefore, pursuant to the power vested in me as Chief Justice of the Supreme Court, I dq hereby designate, appoint and assign Hon. George 0. Crump, regular judge of the Ninth district court judicial district, to hold court at Wilburton, Latimer county, in the Fifth district court judicial district for two weeks, to wit, commencing Monday, March 3, 1919, to and including Saturday, March 15, 1919; it being a part of the provisions of this order that two or more district judges may sit separately in said district at the same time.
“Witness, the Honorable Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma, at Oklahoma City, Oklahoma, this the 15th day of February, 1919. Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma.”

Thereafter, on the 12th day of March, 1919, there was filed in the office! of the court clerk of Latimer county, Okla., a second assignment of the Honorable George C„ Crump to hold court at Wilburton, Latimer county, Okla., for one week commencing Monday, March 17, 1919, to and including March 22, 1919, as follows:

“It having been made to appear, as provided in section 9, art. 7, of the Constitution, that the public business requires it: Now, therefore, I, Summers Hardy, Chief Justice of the Supreme Court of the state of Oklahoma, do hereby designate, appoint and assign Hon. George C. Crump, regular judge of the Ninth district court judicial district, to hold court at Wil-burton, Latimer county, in the Fifth district court judicial district, for one week, to wit, commencing Monday, March 17, 1919, to' and including Saturday, March 22, 1919; it being a' part of the provisions of this order that two or more district judges may sit separately in said district at the same time.
“Done in chambers at Oklahoma City this 10th day of March, 1919. Summers Hardy, Chief Justice of the Supreme Court of the State of Oklahoma.”

The record shows that the trial of this case was commenced on March 13, 1919, and that before the trial began,, to wit, on ¡March IQ, 1919, Mr. Justice Hardy made the second] order, extending the period in which the special judge should preside and hold court in Latimer county until and including March 22, 1919. By reference to the two orders' made by the Chief Justice, above quoted, it will be seen that there was an interval of one day, Sunday, March 16th, between the expiration of the first and the beginning of the second. The trial began on March 13th, and was not concluded until March 18th. It is now contended that there was no judge with authority to act on Sunday, March 16th; that the jury and the officers of the court were beyond judicial control all day Sunday; that there can be no court without a judge, and that the special term automatically ended on March 15th, and that all pending unfinished business likewise automatically ended at midnight Saturday, March 15th.

The authority for making the orders: assigning a district judge to hold court in some district other than his own is found in section 9, art. 7, of the Constitution, as follows:

“In case of the illness of the judge elected in any district, or if for any other cause he shall be unable to preside in the district in which he was. elected,, the Chief Justice may designate any district judge in the state to hold any term of court in said district in lieu of the judge elected to hold the courts of said district. Whenever the public business shall require it, the Chief Justice may appoint any district judge of the state to hold court in any district, and two or more district judges! may sit in any district separately at the same time. ’ ’

The reasons and purposes for assigning a judge to assist in disposing of the judicial business pending in the district court of Latimer county may be gathered from the declarations contained in the Constitution and in the orders made. In each it is recited that the! public business required it. We next inquire for what period of time. Although the specific terms recited in the orders omitted Sunday, March 16th, manifestly it was the intention of the Chief Justice to1 empower this assigned judge to exercise judicial functions from the 3d day of March to the 22d day March, 1919. The inadvertent omission of an intervening Sunday, a day not usually devoted to judicial proceedings, did not, in our opinion, deprive the judge of supervisory power! over the jury and other officers of the court on that day. We think every judge of a court of record has an inherent supervising power to control court officers and jurors on Sunday. While a court cannot perform acts of a purely judicial nature onl Sunday, the court has the right and it is his duty to preserve the rights of[ ithe parties at every stage of a trial, including Sunday, in all matters of a ministerial nature. Notes and cases cited, 1 A. R. C. 742, 743; Milligan v. Territory, 2 Okla. 164, 37 Pac. 1059; section 5917, R. L. 1910.

The statute above referred to provides:

“While the jury are absent the court may adjourn from time to time as to other business, but if is nevertheless deemed open for any purpose connected with the cause submitted to them until a verdict is rendered or the jury; discharged."

In reason, this rule should apply to a partial submission to. the jury, as well as to’ a final submission, and should carry with it all the powers necessary to accomplish its object. Of course, the expiration of the term or a final adjournment would automatically discharge the jury. A remedial constitutional or statutory, provision, and proceedings had pursuant thereto, should not be so construed as to defeat any of the manifest] purposes of such provision. The construction should be consistent with the object sought by the lawmakers, if clearly apparent, and excludes every other construction. 25 R. C. L. 1014, 1015,! and numerous cases cited.

For the reasons stated we think the special assigned judge was a judge de jure on the Sunday in question; but, if that conclusion is incorrect, he was at least a) judge de facto on. that day, and until the trial was concluded. A judge de facto is one acting with, color of right, and who is- regarded and has the reputation of exercising the judicial functions he assumed. The acts of a de facto judge are valid so far as they affect the rights of litigants who acquiesce in judicial proceedings under the supervision of such judge. Plaintiff in error here made no objections touching the authority of the special judge either at the trial below or in his motion for a new trial; the question is urged here for the first time.

An objection to the jurisdiction of a special or substitute judge should be made in the court in which) he assumes to have jurisdiction. An objection made after the trial comes too late, and wall be deemed, on appeal, to have been waived. This rule is based upon principles of right and fair dealing. It would be manifestly unfair to! permit the accused to submit to the jurisdiction of a substitute judge, in anticipation that he might in the course of the trial be acquitted, and then, if he should be disappointed in that regard, and the trial should result in a conviction, allow him to claim the right to have his conviction set aside on the ground that the appointment of the substitute judge was void or irregular. State v. Holmes, 12 Wash. 169, 40 Pac. 735, 41 Pac. 887.

The Supreme Court of Florida, in the ease of Tillman v. State, 58 Fla. 113, 50 South. 675, 136 Am. St. Rep. 100, 19 Ann. Cas. 91, said:

“Assuming that the defendant in a prosecution against him for crime could by appropriate action in the trial court in the wray of pleas, objections or otherwise, have raised the question as to the authority and jurisdiction of the judge of the criminal court of record for another county to preside over the court in the trial of such ease, where such judge is acting under an order of the Governor, based upon section 3871 of the General Statutes of 1906, where no objections to the authority or jurisdiction of such judge were made in the trial .court and no action of any kind taken by the defendant toward raising such question, he will be deemed to have waived by his silence ■ any such privilege or right he may have had, and will not be permitted to raise such question for the first time in the appellate court.”

See Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524; Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405; State v. Lewis, 107 N. C. 967, 12 S. E. 457, 13 S. E. 247, 11 L. R. A. 105; Sheehan’s Case, 122 Mass. 445, 23 Am. Rep. 374; State v. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638, notes and annotations.

In the case of Whitesell v. Strickler, supra, the following appears:

“In the Hancock circuit court the defendant, Russell Strickler, after appearing and demurring to the complaint, excepting to the ruling, and filing his answers to the merits, moved to strike the cause from that docket, and remand the same to the Wayne circuit court, because it did not appear that the Wayne circuit judge was in any way disqualified, or that Smith was appointed special judge. This defendant at that time made no objection to the special judge sitting in the case, or to the regularity of his appointment, and all such objections, will now be deemed waived. ‘A practice that would permit a party litigant to proceed for months before a de facto judge, to make issues, and obtain rulings upon legal questions involved in the controversy, and then if not satisfied with some of his rulings, or not disposed to go to trial, * # * to be able, in a moment, to arrest proceedings and oust the jurisdiction of the judge, cannot be tolerated.’ Lillie v. Trentman (1890) 130 Ind. 16, 29 N. E. 405.”

For the reason stated, the judgment of the trial eourt is affirmed.

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


author: PEB CUBIAM.

text:
    JACK CORNETT et al. v. STATE.
    No. A-4321.
    Opinion Filed Feb. 10, 1923.
    (212 Pac. 439.)
    Appeal from County Court, Adair County; W. H. Martin, Judge.

      Jack Cornett and Baymond Cornett were convicted of manufacturing intoxicating liquor, and they appeal.
    Appeal dismissed.
    Arnold & Woodruff, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

Jack Cornett and Baymond Cornett, plaintiffs in error, appeal from judgments of conviction rendered against them on a joint trial in the county court of Adair county, on the 9th day of January, 1922, on a charge of manufacturing intoxicating liquor, with punishment against each fixed at a fine of $100 and imprisonment in the county jail for a period of' 60 days. The Attorney General has filed a motion to dismiss this appeal, which is as follows:

“Now comes George F. Short, duly qualified and acting Attorney General in and for the state of Oklahoma, and moves the court to dismiss the above-styled appeal for the reason that said appeal was not filed within the time allowed by law for the filing of appeals in this court, said time having expired on the 4th day of April, 1922, and said appeal having been lodged with the court on the 27th day of April, 1922.”

The motion is well taken. Judgments were rendered Jan- . uary 9, -1922. Section 2808, Compiled Statutes 1921, in part, provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good eáuse shown, extend the time in which such appeal may be taken not exceeding sixty days. ’ ’

An order extending the time, beyond the 60 days allowed by statute in which to file the appeal in this court, was made by the trial judge, and is as follows:

“Now on this the 1st day of March, 1922, the application of Jack Cornett and Raymond Cornett for an extension of time within which to lodge appeal in the Criminal Court of Appeals coming on regularly to be heard and the court being fully advised in the premises finds that it is necessary that the time for lodging their appeal in the Criminal Court of Appeals within the state of Oklahoma be extended for 60 days. It is therefore considered, ordered, and adjudged by the court that the time for perfecting an appeal in the Criminal Court of Appeals of Oklahoma he and is hereby extended until the 4th day of April, 1922.”

The petition in error and case-made were filed in this court on April 27, 1922, subsequent to the period of time covered by the order above quoted. Counsel for plaintiffs in error have confessed the motion should be sustained.

It is apparent that the motion of the Attorney General to dismiss this appeal is well taken, and the same is sustained, and the appeal dismissed.


author: DOYLE, J.

text:
    JACK BONNER v. STATE.
    No. A-3996.
    Opinion Filed Feb. 10, 1923.
    (212 Pac. 440.)
    (Syllabus.)
    1. Assault and Battery — Evidence Sustaining Conviction of Assault with Dangerous Weapon. Upon an information charging assault with intent to kill by shooting with a pistol, the verdict was, “guility as charged in thje information, assault with a dangerous weapon, and /assess his punishment at confinement in the penitentiary for a period of three years.” Record proper examined, and held sufficient to sustain the judgment rendered on the verdict.
    2. Appeal and Eirtfor — Reversal, Only for Prejudicial Error. Only-prejudicial errors raised by exceptions reserved, require) a new trial, and it is only when we are satisfied that the verSict was contrary to law, or to the evidence, or that injustice has been done, that this court is permitted to reverse a conviction, whether or not an exception has been taken in the trial court.

      Appeal from District Court, Atoka County; J. H. Line-baugh, Judge.
    Jack Bonner was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    J. G. Ralls, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen,, for the State.
   DOYLE, J.

Plaintiff in error, Jack Bonner, was convicted under an information; charging that, in Atoka county, on or about 10th day of October, 1919, he did make an assault upon and shoot with a, pistol one J. W. Wilbanks with the unlawful and felonious intent to kill the] said Wilbanks. The verdict of the jury wasi:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause do upon our oath find the defendant, Jack Bonner, guilty, as charged in the information, assault with a dangerous weapon, and assess his punishment at confinement in the state penitentiary for a period of three years.”

From the judgment rendered on the verdict, an appeal was taken by filing in this court on .June 10, 1921,' a petition in error with a transcript of the record proper; that is, the information, the instructions given, the verdict, the motion for new trial, and the judgment rendered. The only error assigned is that—

‘ ‘ The court erred in pronouncing judgment against the defendant for assault with a dangerous weapon for the reason that the information charged the defendant with ‘assault with intent to kill.’ ”

Upon the record before us, counsel for plaintiff in error has not properly raised the question. It was not made one of the grounds of the motion for new trial and there was no motion in- arrest of judgment filed. The question is raised for the first time in this court. In fact the record before us contains no exception to any ruling of the court in the proceedings in this case.

Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the -verdict was contrary to law, or to the evidence, or that injustice has been done that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court. In the absence of a transcript of they evidence, or any part -thereof in the record of this case, the presumption is that the ■evidence was amply sufficient as to the guilt of the defendant •of the offense charged.

It may be well for us to say here that under the holdings of this court the judgment is sufficient. Johnson v. State, 12 Okla. Cr. 260, 154 Pac. 1004; Simmons v. State, 15 Okla. Cr. 442, 177 Pac. 626.

For the reasons stated, the judgment of the trial court is ¿affirmed.

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


text:
    B. H. FORD et al. v. STATE.
    No. A-3772.
    Opinion Filed Feb. 10, 1923.
    (Syllabus.)
    "1. Continuance — Denial for Absent Witnesses not Abuse of Discretion. For reasons for holding that there was no abuse of discretion on the part of the trial judge in overruling the motion and application for a continuance, see body of opinion.
    .2. Appeal and Error — Necessity for Prejudicial Error — Improper Admission of Evidence. Before this court is authorized to reverse a judgment of conviction because of the improper admission of evidence, it is necessary that the court, after a consideration of the entire record, must be of the opinion that the erfor complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.
    3. Same — Harmless Error. Where incompetent evidence is permitted to go before the jury, and such facts are otherwise proved in a competent manner, the error occasioned by the admission of the incompetent evidence becomes harmless.
    4. Sufficiency of Evidence. Record reviewed, and held, that the case, under the facts and instructions of the court, was fairly tried and determined upon its merits, and held, further, that the evidence is sufficient to support the conviction as to each defendant.
    Appeal from District Court, Grady County; Will Linn, Judge.
    B. H. Ford and another were convicted of larceny of live stock, and they appeal.
    Affirmed.
    Holding & Herr, for plaintiffs in error.
    George F. Short, Atty. Gen., and B. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

The Attorney General filed a motion to dismiss this appeal upon the ground that the ease-made and petition in error were not filed in this court within six months after the rendition of the judgment in the lower court. In response to said motion, counsel for plaintiffs in error , have made a showing that the date, as it appeared in the original case-made, on which the judgment was rendered in the trial court, was a clerical error; that while the original case-made shows that the judgment was rendered on the 14th of October, 1919, the judgment was in fact rendered on the 14th day of November, 1919. The case-made and petition in error were filed in this court on the 8th day of May, 1920, within six months from the date of the rendition of the judgment, as shown by the verified response of plaintiffs in error to the motion to dismiss the appeal. The Attorney General has stipulated, with counsel for plaintiffs in error, that the case-made should be corrected to show that the judgment was rendered on the 14th day of November, 1919. The motion to dismiss the appeal is therefore overruled.

On the 27th day of September, 1918, the county attorney of Grady county filed in the district court of that county an information charging these plaintiffs in error with the crime of larceny of a domestic animal, the charging part of which information is as follows:

“That the said B. IT. Ford and Bob Cornett did within Grady county, state of Oklahoma, on or about the 12th day of September, 1918, then and there willfully, unlawfully, and feloniously, by fraud and stealth, take, steal, and carry away a certain cow, to wit, a yearling, being the personal property of one S. D. Johnson, without the knowledge or consent of the •said S. D. Johnson, and with the willful, unlawful, felonious, and fraudulent intent on the part of the said B. H. Ford and Bob Cornett to appropriate the same to .their own use and benefit, and to deprive the true owner thereof, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state.”

On the 7th day of October, 1918, defendants waived formal arraignment, and were given 24 hours in which to plead to the information. On the 8th day of October, 1918, defendants filed a demurrer to the information on the ground that the information failed to charge the defendants with the violation of any criminal laws of the state. On the 25th of November, 1918, the demurrer to the information was overruled, and defendants were given 24 hours from that date in which to plead to the information. No further action appears to have been taken until the 13th day of October, 1919, when the defendants filed an affidavit for continuance based upon the ¡absence of the following named witnesses: Harry Mashore and Jim Parker, both residents of Anadarko, Caddo county, Okla.; Roy Atebler, of Stephens county, Okla.; George Hensley, a resident of Caddo county, Okla.; Edward F. Johns, a resident of Chiekasha, Okla.; Tom Bowles, a resident of Grady county, Okla.

The affidavit alleges that subpoenas were issued and placed in the hands of the sheriff of the proper county for service, with the request that the same be served, and that copies of said subpoenas were attached and made a part of the application. That witnesses Mashore and Parker, if present, would have testified that they were at the home of the defendant Cornett when he was killing a cow alleged to have belonged to the prosecuting witness Johnson; that said animal was not the animal of said Johnson, and that the beef distributed by said defendant Cornett was the beef from said animal, and not the beef from the animal of said Johnson, and that the hide sold by the defendant Cornett was the hide from the animal, and not from the animal belonging to prosecuting witness Johnson; that witness Roy Atchler would testify, if present, that he was employed by defendant Ford at the time of the alleged theft, and that the defendant Ford was at home during all the day and night the animal was alleged to have been stolen, and had not left his home during said night; that the witness Bowles, if present, would testify that he held possession of the house and lands on which the meat was found, which meat was claimed to be a part of the meat stolen, and that the house with said meat was not under the control of defendant Ford, nor did defendant have access to the same. Further, it is alleged that affiants believed said state of facts to be true, and said witnesses resided at the places stated, and that the sheriff returned the subpoenas not found; that if the case is continued until next term of court defendants will have said witnesses present to testify that said facts cannot be proved by any other witness or witnesses; that the application is made in good faith and not for delay.

Attached to the affidavit and application as exhibits are the returns of the sheriff of Stephens county that the witness Roy Atchler was not found in his county. This subpoena appears to have been issued on the 19th day of September, 1919, for the appearance of the witness in the district court of Grady county on the 7th day of October, 1919, at 8:30 a. m., and the subpoena and return thereon were filed by the court clerk of Grady county on the 3d day of October, 1919; the return of J. R. Cox, sheriff of Caddo county, to a similarly dated subpoena, that Harry Mashore and Jim Parker were not found in his county. This return was also filed on the 3d day of October, 1919, by the court clerk of Grady county.

The motion and application for continuance were overruled, and the action of the court in overruling the same, was excepted to.

The continuances were properly denied. First. There is no showing of any facts constituting diligence on the part of the defendants to keep in touch with these witnesses and their whereabouts. The affidavit shows on its face that the witnesses desired were intimate friends and acquaintances of these defendants; that this cause was not tried until over a year after the information was filed in the district court of Grady county; that although the record shows that in January, 1919, a subpoena was issued by the defendants for other witnesses residing in Grady county, Okla., evidently at a prior term of court when this case was set for trial, no effort was made to procure the attendance of these witnesses for whom a continuance was asked, but defendants waited a full year after this charge was lodged against them before they requested a subpoena for any of these witnesses, who were not residents of Grady county. Such action certainly displays an entire lack of diligence and good faitb if the witnesses were really desired at tbe trial. Further, it appears that the returns of the sheriff to the subpoenas for the witnesses Mas-hore, Parker, and Atchler were filed in the district court of Grady County 10 days before the case was finally called for trial. A period of 10 full days, therefore, elapsed during which these defendants knew, or could by reasonable diligence have known, that the last above-named witnesses could not be found in the respective counties to which subpoenas had been issued. There is no showing in the affidavit that any effort was made during these 10 days to find the whereabouts of such witnesses, nor is there any showing that there would be any greater likelihood of obtaining the attendance of these witnesses at the next term of court. It is apparent from this record, therefore, that no good-faith effort was made to procure the attendance of these witnesses at the trial. Second. It does not appear from the face of the motion and application that the evidence was material. Third. It does not appear there is any greater likelihood of obtaining the attendance of these absent witnesses should the cause have been continued to a later term of court. Fourth. An examination of the record shows that the evidence desired was cumulative. For all of which reasons it is held that there was no abuse of discretion on the part of the trial judge in overruling the motion and application for a continuance.

After the county attorney had made the opening statement of the case counsel for the defendants again moved that the court continue the case, for the reason that the date alleged in the information charged the crime to have been committed on the 12th day of September, an,d the county attorney stated the crime to have been committed on the 10th day of September, 1918; that'defendants had no notice that they were charged of having committed the offense on any other date than that alleged in the information; that they had prepared their defense for that date, and were taken by surprise by the statement of the county attorney to the effect that the state expected to prove that the crime was committed on the 10th day of September instead of the 12th.

This supplemental motion is wholly without merit. This is a prosecution for a felony by information, in which the defendants were entitled to a preliminary examination into the question of their guilt, Tf they did not waive such an examination. It was in their; power, therefore, to elicit at such preliminary examination the information as to the exact date the state expected to rely upon for a conviction. Time is not one of the essential elements of the offense of larceny. The state was not bound by the date alleged in the information, but could have proved the offense to have been committed on any date within three years immediately preceding the date of the commencement of the prosecution. It is apparent, therefore, that the defendants could not have been prejudicially surprised by the opening statement of the county attorney that he intended to prove the commission of the crime on a date 2 days prior to that alleged in the information. Little v. State, 21 Okla. Cr. 1, 204 Pac. 305.

It is next contended that the trial court erred to the prejudice of the defendants in permitting certain witnesses to give incompetent testimony.

The witnesses Wamsley, Welker, Degenderfer, Schwartz-fischer, and Green each testified that they had examined the head of the heifer stolen from the prosecuting witness Johnson on the night of September 10, 1918, after it was found at the place where it had evidently been' b'utch'ered on the public highway close to the pasture where Johnson was keeping his cattle, and had also examined a certain red cow hide which the witness Ayres, a purchaser of hides living at AnacTarko, Okla., testified that he had bought from the defendant Bob Cornett on the 12th day of September, 1918, and that, after making an examination and detailing the peculiar notches in the hide and the peculiar condition in which the animal had been skinned and certain other peculiarities both of the hide and of the head, testified that they had compared the hide and head and fitted one to the other, and that they fitted exactly, and, over objection by defendants’ counsel, certain of these witnesses were permitted to state that in their opinion the hide sold by Cornett to Ayres belonged to the animal whose head was found in the public highway close to Johnson’s pasture on the 11th day of September, 1918.

Section 2822, Compiled Statutes 1921, in part provides that no judgment of conviction shall be reversed, among other grounds, because of the admission of incompetent or irrelevant evidence, unless after a consideration of the entire record the court, is of the opinion that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.

While the prevailing weight of authority is to the effect that the court should not have permitted these witnesses to express their opinion on this subject, no impartial reader of the transcript of the evidence in this ease can reach any other conclusion than that of the guilt of these defendants. The opinions expressed by the witnesses followed lengthy details of the facts of similarity between' the hide and head and comparisons of the two to such an extent that the opinions themselves were negligible as evidentiary factors. The facts detailed necessarily implied the opinion which followed. After listening to the details of the comparison and descriptions given by these witnesses as to the head and hide, no sane man could reach any other conclusion, independent of the opinion of the witnesses, than that the hide and head both belonged to the same animal. In the case of Byers v. State, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532, the admission of evidence of this character was held not necessarily to be reversible error.

There appears to be in this case an additional reason why the admission of this evidence should not be held to be reversible. Both the prosecuting witness S. D. Johnson, who was the owner of the animal, and Mr. Welker, testified that they were well acquainted with the animal long prior to the time of its theft and butchering; that they saw both the hide and the head after the animal was stolen and butchered, and that the hide and head belonged to the same animal, and that such animal before being butchered was the property of Johnson. These two witnesses were not testifying to opinions or conclusions based upon comparison of the hide and head, but were testifying to facts from personal knowledge. It is apparent, therefore, that in this case the evidence here complained of got before the jury by other witnesses in a competent manner and without objection by defendants’ counsel.

It is almost universally held that, where incompetent evidence is permitted to go before the jury, if such facts are otherwise proved in a competent manner, the error occasioned by the admission of the incompetent evidence becomes harmless. Vaughan v. State, 58 Ark. 353, 374, 24 S. W. 885; Doll v. People, 145 Ill. 253, 34 N. E. 413; McLaughlin v. People, 17 Ill. App. 306; Siebert v. People, 143 Ill. 571, 32 N. E. 431; Bloom v. State, 155 Ind. 292, 58 N. E. 81; Sanderson v. State, 169 Ind. 301, 82 N. E. 525; Com. v. Brown, 90 Va. 671, 19 S. E. 447. See, also, Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311.

Great stress is placed on this assignment of error in the able brief filed in behalf of these defendants, and numerous eases are cited to the effect that the admission of such evidence was erroneous, but it must be borne in mind that in tbis jurisdiction it is not error alone tbat authorizes this court to reverse judgments of conviction, but error plus injury, and in determining whether injury has probably resulted from the error complained of, this court will closely examine the record to determine the probable guilt of the defendants. Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092.

It is also contended that the county attorney was guilty of prejudicial misconduct in certain statements made by him in the closing argument to the jury. ¥e have examined the record bearing upon this assignment of error, and are convinced that the argument complained of, considered in connection with the testimony of the defendant Cornett, and in connection with the admonitions of the trial judge made at the time the objection was lodged to the argument complained of, was not misleading or such as to constitute reversible error.

This case, from our view, under the facts and instructions of the court, was fairly tried and determined upon its merits. "While the evidence against the defendants is altogether circumstantial, the links in the chain of circumstances are so dovetailed together as to form an impregnable bulwark of facts from which there is no escape consistent with the hypothesis that either of these defendants is innocent.

The judgment of conviction as to each defendant is therefore affirmed.

DOYLE and BESSEY, JJ., concur.


text:
    DAVID B. REED v. STATE.
    No. A-4040.
    Opinion Filed Feb. 10, 1923.
    (212 Pac. 441.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction for Murder. In a prosecution for murder, wherein the defense was insanity, evidence considered, and held sufficient to support the conviction without the death penalty, and that no prejudicial error was committed on the trial.
    2. Evidence — Presumption of Sanity. A person is presumed to be of sound mind until the contrary is shown.
    3. Homicide — Defense.of Insanity as Question for Jury. On a trial for murder, where evidence is introduced which in any degree tends to support the defense of insanity at the time of the commission of the homicide, the issue as to whether or not the defendant was then sane or insane is a question of fact for the jury to determine under proper instructions from the court.
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    David B. Reed was convicted of murder and be appeals.
    Affirmed.
    Thompson & Smith, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, David B. Reed, was convicted of murder, and in pursuance of the verdict of the jury was sentenced to imprisonment in the penitentiary for life at hard labor. He has appealed from said conviction to this court, but there has been no appearance in his behalf on his appeal. We have nothing before us but the petition in error and case-made.

The information charged him with the murder of one Roy Perrick, alleged to have been committed on the 24th day of July, 1920.

The assignments of error are that the verdict was contrary to the law and the evidence; that the court erred in admitting incompetent testimony over the objection of the' defendant, that the court erred in excluding competent testimony offered by the defendant; and that the court erred in giving certain instructions.

The evidence shows that Roy Perrick, the deceased, resided with his wife and three children in Drumright; that his sister, Mrs. Eula Reed, was visiting at his home; that on the date alleged defendant came to the home of deceased, and took a'pistol from his pocket and attempted to shoot Mrs.Eula Reed; that while she was trying to take the pistol from him, deceased returned to his home, his wife met him in the yard, and told him that David Reed was in the house and was attempting to shoot his sister. Deceased entered the house and was shot by defendant. From the effects of the wound he died about 10 minutes later.

The testimony on the part of the state may be briefly stated as follows:

Mrs. Eula Reed testified:

“I lived at my brother Roy Perrick’s home about two weeks; on the 24th day of July, 1920, about 6 o’clock in the afternoon, defendant, David B. Reed, came to the house. He took a telegram and a gun out of his pocket, and said he was going to kill me; I grabbed the gun, and we scuffled out of the house and then back in. We both had hold of the gun most of the time. He told me to sit down, and I did, then he threw the gun in my face, and we scuffled again; I heard the car coming, and my brother came in, and defendant shot him. I never heard a word spoken. My brother ran out, I followed him, and the defendant shot me in the back. My brother ran towards Mrs: Drumright’s house. The defendant overtook me at Mrs. Drumright’s gate, and we scuffled over the gun into her house. I took the gun from the defendant, and handed it to Bertha Billings. My husband died from T. B. at Garden City, Kan. He bad been dead 24 days when the shooting occurred; the defendant had tried to force me to live with him ont of wedlock in every why he could; he said I might as well live with him as anybody. I always refused and every time he said he would kill me if I would not live with him.”

Mrs. Bell Perrick testified:

“I am the widow of Roy Perrick. Mrs. Eula Reed is the sister of my husband. She had been at my house about 10 days. I was at the well, and saw the defendant coming towards the house; he came into' the kitchen, and drew a gun and telegram out of his pocket, and told her he was going to do what he said he would do. She grabbed the gun, and they scuffled out of the house and back into the house. I was begging him to quit and let her alone. My husband was downtown. I went out and saw my husband coming, I told him Dave Reed was in the house and had a gun and was going to shoot Eula. My husband said, 'Oh no; he is not going to shoot her;r and he went into the house. I ran to give Mrs. Drumright my baby, and I heard two shots, fired in the front room of my house. My husband came out and said ‘I am shot, and I am dying.’ The defendant passed him, running after my sister-in-law. My husband died in a few minutes. ’ ’

The sole defense interposed was that of insanity.

As a witness in his own behalf defendant testified as follows:

"State to the court and jury whether or not you have now any independent recollection of being present at the Perrick home on the 2'4th day of July, 1920, or at any time, armed with a revolver, and having leveled fKat revolver at Perrick or any one else and fired the same. A. I do not.
"Q. State when was the first time of you knowing that you had shot Roy Perrick. A. Some time in September, I was in the county jail at Sapulpa, and my brother came to me and told me.”

On cross-examination be was asked:

"Is it not a fact about 4.days after this alleged homicide, while you were in the county jail, you wrote a letter to Eula Reed? A. I could not say that I did. (Letter produced and handed to witness.)
"Q. Is that. instrument in your handwriting? A. I believe it is.
, "Q. Then you wrote that? A. I must have written it.”

The letter was then introduced in evidence and read to the jury. It reads as follows:

"Mrs. Eulah Reed, at Home: Dear Eulah. Will send you this missive in inquiry as to your condition. How are you getting along? Fine I hope. Let me know how you are for I am very sorry for you for I know that you must be suffering this hot weather. I hope that you will get well all right. I wish that I could see you for we have had such good times together. Now sweetheart you know that I can’t write what I would like to. Come down to see me Dear. The Jailor wont let you get close enough to me to hurt you, and I would not any way, for I see my folly now. So please come and see me for it wont be long until I will be shut up for life or Electrocuted and then I never can see you again. So grant me the pleasure of seeing you any way at least once, for I still love you, As ever, David B. Reed. ’ ’

Two physicians as medical experts testified that they had made a personal examination .of the defendant, and found that he had a fracture of the skull and an infantile left arm; that the effect of the fracture of the skull might cause epileptic insanity, and that they found the defendant afflicted to such an extent that he is a fit subject of psychic epilepsy.

D. B. Reed, father of defendant, testified:

"My son David B. Reed will be 28 years old the 20th day of June, he was born with his arm in that shape; when he was 3 or 4 years old he jumped out of a chair on his head, and made that hole that is there now; at times he seemed to get along pretty well, and at other times he seemed to have no sense at all. He had violent spells, and we could not do anything with him; he threatened lots, but he never hurt us.”

Three or four witnesses testified to intimate acquaintance with the defendant for several years, and to acts, conduct, and declarations tending to show that he was not a person of sound mind, and gave as their opinion that the defendant was not rational.

In rebuttal the state offered evidence tending to show that the defendant was not insane.

Mrs. Eula Eeed, recalled, testified she was acquainted with the defendant for about 8 years, and during that time he did not have any epileptic fits or convulsions of any kind.

Several witnesses testified that they talked to the defendant shortly after the homicide, and he stated that he sent a telegram to Eula Reed from Oklahoma City, and signed his cousin’s name to it, and she replied, saying she would meet him in Ardmore on Saturday; that he was jealous of her and his cousin, and when he got this answer it made him mad; that he went to a pawnshop in Oklahoma City and bought a pistol for $8 and came to Drumright, intending to' kill Eula Reed; that he went out to Roy Perrick’s house and was quarreling with Eula Reed when Perrick came in, and he shot Perrick and then shot Eula Reed as she went out the door; that Eula Reed then took the gun away from him.

Two physicians as medical experts testified that from their examination of the defendant they believed his reasoning faculties were good. In answer to proper hypothetical questions they stated it was their opinion that the defendant was sane.

There is no conflict in the evidence as to the facts and circumstances of the homicide.

It is our conclusion, after carefully considering all the testimony in regard to the mental condition of the defendant at the time of the homicide, that the killing was the willful, deliberate, and premeditated act of a person who understood perfectly well the nature and consequences of his act, and we feel constrained to say that we have seldom read a record of conviction where there were less palliating circumstances in behalf of the defendant than this ease presents.

The capacity to know right from wrong, and to know' that the particular act being committed is wrong, is recognized as a correct rule in Oklahoma to test the question of criminal responsibility.

In the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, it is said:

“The defendant is presumed in law to be sane and capable of knowing right from wrong as to the homicidal act and to understand the nature and consequences of such act, and, unless the proof on the part of the prosecution is sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide, the burden is upon the defendant, in the first instance, to overcome this presumption by introducing sufficient evidence to raise a reasonable doubt of his sanity when the act was committed. . When he has done this, the prosecution, in order to convict, must prove the defendant ’d sanity beyond a reasonable doubt, and if, on a consideration of all the evidence, the jury entertain a reasonable doubt as to the defendant’s sanity when the act was committed, he should be acquitted.”

And see Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Hodges v. State, 16 Okla. Cr. 183, 182 Pac. 260; Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048.

Tbe defense of irresponsibility, at best, presents a question of fact for tbe jury, and, wben tbey bave settled tbat question without passion or prejudice in accordance with tbe evidence, it is not tbe province of this court to disturb tbe verdict of tbe jury.

There was no error in tbe rulings of tbe court on tbe admission or the exclusion of testimony. Tbe letter written by the defendant a few days after the homicide to Mrs. Eula Reed was properly admitted.

In the case of Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800, it is held tbat wben tbe sanity of the defendant is in issue, letters written by him during tbe period of his alleged insanity may be given in evidence for tbe purpose of obtaining tbe opinion of an expert as to his sanity.

Upon a careful consideration of all tbe instructions given we are of opinion that tbe law of this case was fairly and fully presented to tbe jury, and the record shows tbat no objections were made or exceptions taken to tbe same.

Upon the whole record we are of opinion tbat tbe defendant had a fair trial, with every right accorded him tbat tbe law justifies or requires, and our conclusion is tbat tbe law can only be vindicated by an affirmance of tbe conviction. Tbe judgment of the superior court of Creek county herein is therefore affirmed.

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


text:
    JESSE McNEELY v. STATE.
    No. A-4145.
    Opinion Filed Feb. 13, 1923.
    (212 Pac. 441.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole by Appellant. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, Garvin County; G. M. Barrett, Special Judge.
    Jesse McNeely was convicted of manslaughter in the first degree, and he appeals.
    Dismissed.
    H. M. Carr, H. G. Butts, Ben S. Baldwin, and S. B. Garrett, for plaintiff in error.
   DOYLE, J.

The plaintiff in error, Jesse McNeely, was by information charged with the murder of one Ben Cowling, alleged to have been committed in Garvin county on or about the 30th day of April, 1921, by shooting him with a pistol. Upon his trial he was found guilty of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for a term of nine years. From the judgment rendered in accordance with the verdict on the 21st day of ;June, 1921, an appeal was perfected by filing in this court on December 15, 1921, petition in error with case-made. His counsel of record have moved to dismiss the appeal on the ground and for the reason that on the 29th day of December, 1922, plaintiff in error, Jesse McNeely, was granted a parole by J. B. A. Robertson, Governor of the state of Oklahoma, and said plaintiff in error accepted the same.

The uniform holding of this court is that, when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole, and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned. Cowley v. State, 11 Okla. Cr. 561, 149 Pac. 924; Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930.

The appeal herein is therefore dismissed, and the cause remanded to the trial court.

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


text:
    ANDY MUNSON v. STATE.
    No. A-3997.
    Opinion Filed Feb. 13, 1923.
    (212 Pac. 438.)
    (Syllabus.)
    1. Evidence^ — When Defendant's Character Subject to Attack. The state cannot attack the character of a defendant, unless he first puts that in issue by introducing evidence of his good character.
    2. Same — Reputation not Issue of Case. In the trial of a criminal case the issue is singular, and is based upon the question, "Did the defendant commit the crime charged?” and not upon the question, “Has the defendant the reputation of having committed the crime charged, or some similar crime?”
    3. Trial — Erroneous Refusal of Instruction on Circumstantial Evidence. When the evidence relied upon by the state is entirely circumstantial, it is error for the court to refuse to give a requested instruction on the law applicable thereto.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Andy Munson was convicted of a violation of the prohibitory law, and he appeals.
    Reversed.
    J. H. Cline, for plaintiff in error.
    George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for the State.
   DOYLE, J.

Under an information charging that in Cotton county, on the 29th day of March, 1921, Andy Munson did have in his possession five gallons of corn whisky with the intent then and there to sell the same, defendant was tried and convicted; his punishment being fixed at a fine of $100 and confinement for 30 days in the county jail. He has appealed from the judgment rendered upon such conviction.

In order to present the questions raised, we will state the evidence.

A. M. Black testified that he was deputy sheriff, and searched the defendant’s place for liquor, and found a two-gallon jug about one-half full of corn whisky concealed under some trash on the bank of a creek near defendant’s house; that the contents of the jug were poured out, and that none of the sheriff’s force had measured the amount of liquor contained in the jug; that before the search defendant told him that he did not think they would find any whisky, and whenj. the whisky was found defendant said he did not know that the jug was there.

Against defendant’s objections witness further testified as follows:

“Q. At the time of the search, were you acquainted with the reputation of Mr. Munson as to whether Tie was handling, selling, or disposing of whisky on those premises? A. Well, I don’t think he was ever accused' of selling whisky when I lived in the neighborhood.”

The next witness for the state, W. W. Bivins, against defendant’s objections, testified:

“Q. I will ask you if you know what the reputation of Andy Munson is now and has been in the last few months in regard to him selling or disposing of liquor ? A. No, I don’t know anything about Andy; that is only general talk over the neighborhood.
“Q. What is the general talk of the neighbors or neighborhood? A. The general talk is that Mr. Munson has been mixed up with it some way.
“Q. Mixed up with what? A. With the handling of whisky or something.”

J. M. Terrill, third witness called, against defendant’s objections, was permitted to testify as follows:

“Q. I will ask you if you are acquainted with the reputation of Andy Munson in your community as to whether he handles whisky or not. A. Well, it is not' very good reputation ; at least I would not think so.
“Q. Just what is that reputation? A. That there has been more or less whisky being sold and drank around his place.”

C. C. Powers, the fourth witness, against defendant’s objection, was permitted to testify as follows:

“A. I will ask you if you are acquainted with his reputation at this time and in the near past as to whether or not he engages in the liquor traffic in the community. A. In general among the people his reputation is not very good in that line.
“Q. Is it, or not, that he handles liquor? A. I think so.”

G. H. Gflidwell, the only other witness, against defendant’s objections, was permitted to testify as follows:

“Q. I will ask you if you know his reputation in that neighborhood as to his handling liquor. A. Yes, sir.
“Q. State what it is. A. His reputation is that he handles a little liquor.”

The state rested, and the defendant asked the court to instruct the jury to return a verdict of acquittal, which was refused, exception reserved.

After a careful examination of the record, the conclusion of the court is that the judgment in this ease cannot be permitted to stand. It has been repeatedly decided by this court that the fact that an offense has been committed cannot be proven by common rumor or general repute.

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

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

If it were the law that anything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the state would doubtless be hard to answer; but the law is otherwise. It is the law that a defendant in a criminal case is presumed to be innocent until the contrary is proved by competent evidence beyond a reasonable doubt. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, whether it affords too great protection to the criminal, or too little to society, are not questions with which we have to do. It is not the province of the courts to change and relax the rules of evidence in order to facilitate convictions in a particular class of offense. Until the lawmaking- power intervenes and' prescribes differently, the same rules of evidence must govern the trials of defendants in this class of offenses that govern in all other criminal trials. Kirk et al. v. State, 11 Okla. Cr. 203, 145 Pac. 307; Sims v. State, 11 Okla. Cr. 382, 146 Pac. 914; Richards v. State, 12 Okla. Cr. 224, 154 Pac. 72; Cantrell v. State, 12 Okla. Cr. 534, 159 Pac. 1092; Upton v. State, 12 Okla. Cr. 593, 160 Pac. 1134 It follows that the admission of evidence as to the general reputation of defendant was prejudicial.

The trial court refused to give the requested instruction, and failed to charge on the law of circumstantial evidence. Where, in a criminal case, circumstantial evidence solely is relied on for a conviction, it is error for the trial court to fail and refuse to instruct on the law applicable thereto when the defendant requests it. Kirk et al. v. State, supra. Under the evidence in the case the requested instruction, or one similar, should have been given.

Finally it is contended that the conviction is contrary to law and the evidence. Tested by the rules of circumstantial evidence, the testimony does not, in our opinion, prove possession, and, if sufficient to show possession, does not show an amount in excess of one gallon, and for this reason' we think it was insufficient to overcome the presumption of innocence.

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

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


author: PEE CUBIAM.

text:
    C. M. GILES v. CITY OF TULSA.
    No. A-3865.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 1116.)
    Appeal from Municipal Criminal Court of Tulsa; F. D. Prentice, Judge.
    C. M. Giles was convicted of vagrancy, and he appeals.
    Affirmed.

      D. M. Martindale, for plaintiff in error.
   PEE CUBIAM.

Plaintiff in error was convicted in the municipal criminal court of the city of Tulsa on a charge of vagrancy, and was sentenced to pay a fine of $19. From the judgment rendered on the 9th day of August, 1920, an appeal by case-made with petition in error attached was filed' in this court on October 8, 1920. No brief has been filed. An examination of the record discloses no prejudicial error, and the judgment is therefore affirmed. Mandate forthwith. ■


author: PEE CUEIAM.

text:
    RAY HAMILTON v. STATE.
    No. A-3944.
    Opinion Filed Feb. 17, 1923.
    (212 Pac. 447.)
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Eay Hamilton was convicted of burglary, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PEE CUEIAM.

Eay Hamilton was convicted in the district court of Delaware county on the 11th day oí November, 1920, of the crime of burglary in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of two years.

This appeal has been pending in this court since the 16th day of March, 1921. The cause was submitted on March 16,1922, at which time no appearance was made by any counsel representing plaintiff in error, but 20 days were allowed within which to file a brief herein. No brief has been filed in behalf of plaintiff in error.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

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

An examination of tbe pleadings, instructions, and judgment and sentence discloses no prejudicial error, and tbe judgment is accordingly affirmed.