text:
    WILLIAM A. JONES v. STATE.
    No. A-10683.
    April 2, 1947.
    (179 P. 2d 484.)

      Harold McArthur, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, William A. Jones, was charged jointly with Raymond Houser and Glenn Y. Gunter in tbe district court of Tulsa county with tbe crime of robbery with firearms. He was granted a severance, tried, convicted and sentenced to serve a term of 30 years in tbe State Penitentiary, and bas appealed.

For a reversal of this case, it is first contended that the “verdict and judgment thereon is contrary to the evidence.”

This contention is based upon the proposition that the evidence made out a case of conjoint robbery, or larceny from the person, but did not support a conviction of robbery with firearms. This contention makes it necessary to give a short review of the evidence. However, we desire to set out certain sections of the Oklahoma statutes before reviewing the facts.

Tit. 21 O. S. 1941 § 791 defines robbery as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

Tit. 21 O. S. 1941 § 792 refers to the employment of force or fear, and is as follows:

“To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.”

Section 793 of the same Title provides:

“When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.”

Section 794 defines what fear is an element:

“The fear which constitutes robbery may be either:
“1. The fear of an unlawful, injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or,
“2. The fear of an immediate'and unlawful injury to the person or property of anyone in the company of the person robbed, at the time of the robbery.”

Tit. 21 O. S. 1941 § 800 defines conjoint robbery:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly commits a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than 50 years.”

Tit. 21 O. S. 1941 § 801 defines robbery with firearms or dangerous weapons, and is as follows:

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same.”

Tit. 21 O. S. 1941 § 1701 defines larceny:

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

Section 1708 defines grand larceny in the night time from the person, and fixes the punishment therefor:

“When it appears upon such trial, that such larceny was committed by stealing in the night time, from the person of another, the offender may be punished by imprisonment in the penitentiary was exceeding ten years.”

The evidence was that Miss Mary Irene Henry, whose home was in Chelsea and who was attending the University of Oklahoma at Norman, was visiting in the home of Miss Norma Kenworthy who lived at 1505 South Elwood, in Tulsa, on Friday evening, October 13, 1944.-They left the home of Miss Kenworthy about 7:45 in the evening, and in company with Miss Pat Stephens were waiting on the corner for a bus to town. Miss Henry had stopped in Tulsa on her way to Chelsea, and it was their intention to go first to the railway station and check her luggage, as she intended to catch a 11:30 train to Chelsea, and then attend a picture show. While they were standing at the corner, waiting for the bus, three parties, who were after-wards identified as the three defendants, came by in an automobile, and one of the occupants asked the girls if they wanted to ride to town. Miss Kenworthy testified that she was often picked up at this corner and given a ride to town, and that the three girls entered the automobile, about 7:45. Miss Henry and Miss Kenworthy got in the back seat, and Miss Stephens in the front seat. Defendant was identified as being the driver of the automobile, and the codefendant, Gunter, was in the front seat with him, and the other codefendant, Houser, was in the back seat. They drove for several blocks, and the young ladies “kept telling them to turn to the right to take us to the train station.” Miss Henry testified that defendant was driving the car, and positively identified him. She testified:

“Q. As you were going out there, did any of these three defendants, Jones, Gunter or Houser, make any statement to you? A. Yes, sir, Gunter had a gun and said, ‘this is a robbery.’ * * * Q. I will ask you if this defendant Jones, did he have anything in his hand? A. Yes, sir. Q. What was it? A. He had a gun.. Q. Did you see the gun? A. Yes, sir. Q.' Did anybody take any money away from you? A. Yes, sir. Q. Who was it? A. Gunter took my billfold. Q. How much money did he take from you? A. About two or three dollars. Q. Did Jones take any money off of you? A. No, sir.”

She testified that they had stopped the car and required each of the girls to get out of the automobile.

“Q. Did they look through your bag or not? A.Yes, sir, Houser searched it. Q. Tell us what he did with the bag. A. He just looked through it, saw there wasn’t anything very valuable, so he didn’t take anything. * * * A. We drove around in the country for two and a half or three hours. * * * Q. Just tell what they did. Did you stop any more? A. Yes, we would drive along, then stop, get out, they would search us, then we would get in, drive on. That went on for about two and a half or three hours.”

She testified that they finally brought them back to the Midland Valley railroad tracks about 11 o’clock, and that she got a taxi and went to the train station and took the train to her home in Chelsea. She did not see the defendant William Jones again until the preliminary examination was held several months later. She at that time, and at the trial, positively identified the defendant as the party who drove the automobile, and who had the pistol in his hand at the time he searched her on the night of October 13,1944.

Miss Kenworthy testified for the state. Her testimony corroborated that of Miss Henry as above stated. She also testified:

“Q. Where did you go? A. We continued up Denver and when we got to the place that we should turn, they did not turn, kept going straight; so I' told them they were supposed to turn to the right, and Jones said, ‘I know where I am going’, so we kept going straight, finally he turned to the right. Q. That was Jones, this defendant here, is that right? A. Yes, sir * * * Q. Did you see any guns or revolvers? A. Yes, sir. Q. Did this man here, Jones, have a gun? A. Yes, sir. Q. Whereabouts was it? A. He had it in his hand when I first saw him. Q. Did anybody tell you it was a robbery? A. They did, after we turned to the left — let’s see, we were going this way, then we turned to the right. Q. Who made that remark? A. Gunter. Q. When you stopped out there, what took place? A. Well, when we first stopped, Houser told me to get out, because Irene’s bag was in the back seat, and I got out and just before I got out, they turned on the dome light, then they made me turn my back to the car, some one searched the bag. I had my back to the car at the time. Q. Was there any monéy taken away from you? A. Yes, sir. Q. Who took the money? A. I handed my billfold to Houser on the way out there, and told him to take our money and.let us out, if that is what he wanted, and he said no, he would not do it. Finally he handed it back to me and Gunter took it. Q. How much money did you have? A. Oh, about six or seven dollars. Q. Did they take all your money? A. Well, they missed about fifty cents. Q. How did they happen to do that? A. It was in a zipper compartment of my purse. Q. Zipper compartment of the purse? A. Yes, sir. Q. Théy got all but that? A. Yes, sir. Q. After they stopped, did you get back in the car? A. Yes, sir. Q. Then where did you go? A. We just went up the road and turned down another one, they made us get out again. Q. What would they do when they would make you get out? A. They just said, ‘get out.’ They had a gun, and you don’t argue with a gun. Q. You got out? A. Yes, sir. Q. Did they tell you to get back in? A. Yes, sir. Q. And you got back in? A. Yes. Q. About how long were you with these three men? A. From a quarter of seven until almost 11 o’clock. Q. Miss Kenworthy, during this some two and a half or three hours’ time, did you have an opportunity to see the driver of the automobile. A. Yes, sir. Q. Gan you tell us at this time whether or not this man here, sitting in the court room, William Jones, is the man who was driving that automobile? A. I am sure it is. Q. Are you absolutely positive? A. Yes, sir.”

She testified to seeing the defendant at the police station about a month later, and that she picked him out from a number of persons as the one who drove the automobile on October 13, 1944.

At the time of the trial, Miss Stephens had moved to California, and she did not testify.

Certain police officers of the city of Tulsa testified that they were “cruising” in the city on Saturday night, October 14,1944. That they were looking for a stolen automobile of which they had the description, and the license plate was missing. They saw a car answering the description, and after a chase they captured the codefendants Gunter and Houser, who fled from the car. A third party ran and escaped. Defendant was arrested by the police officers about a month later, and was taken to the city jail. Miss Kenworthy was recalled, and she testified that she was called to the city police station and identified the car in which Gunter and Houser were arrested as being the car used in the robbery on the night of October 13,1944.

Defendant placed upon the witness stand three witnesses for the purpose of establishing an alibi. Among these were a brother of the defendant, and the brother’s mother-in-law. They both testified that during the week of October 13, 1944, and on the 14th, defendant and his wife, with his brother and his wife, went to visit the brother’s mother-in-law in Hominy, Okla. That defendant was there on Saturday night, October 14, and they returned to Tulsa on Sunday night, October 15,1944. The brother could not testify positively as to the whereabouts of defendant on Friday night, October 13, 1944, the night of the alleged robbery, but he was of the opinion that his brother was with him on that night because: “I and my brother are inseparable.”

The state offered in rebuttal one witness, a police officer, who testified that the brother of defendant was taken to the police station on Tuesday following Friday, October 13, 1944, and questioned as to the whereabouts of the defendant, and that his brother stated he “didn’t know where Bill was, and haven’t seen him for approximately a week, and that he would bring him in to the police station whenever he saw him.”

Both sides rested, and defendant did' not testify, as was his right.

To support the contention of defendant, he cites the cases of Cannon v. State, 71 Okla. Cr. 42, 107 P. 2d 809, and Edwards v. State, 55 Okla. Cr. 110, 25 P. 2d 800.

It is unnecessary to review these cases, only to state that they have been carefully considered, and they sustain the position of the state in every particular. They were both cases where the defendants were charged with robbery with firearms under the identical statutes above quoted, and under which defendant was charged. Both cases were affirmed and the facts in those cases were very similar to the facts here presented.

In the case of Ross v. State, 31 Okla. Cr. 143, 237 P. 469, 470, this court had under consideration the same question here presented, and it is there said:

“It is here contended that the testimony is insufficient to support the verdict, for the reason that there is no sufficient proof of force or fear in the taking of the money. That there was no force employed, and, as' the witness Faye Godsey testified that the two men who came into the bank told her that' they were not going to hurt her, did not threaten her, and as she was not afraid of them, there is not a sufficient proof of fear. This witness testified that she was not afraid of the men so long as she did what they told her to do, and that she turned the money over to them because their guns were in evidence. This, defendant contends, may prove a case of larceny, but not robbery, citing Monaghan v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A., N. S., 1149, and Nelson v. State, 11 Okla. Cr. 259, 145 P. 315. This witness displayed great poise and coolness under the circumstances. She apparently was imbued with the. idea that the persons who came into the bank, pointing a gun at her, with the command ‘stick ’em up,’ were after the money in the bank, and that if they could procure the money there would be no reason to hurt her. This is common sense. She also apparently realized that, if she attempted to resist, violence sufficient to overcome her resistance would be made. What fear or degree of fear is sufficient to constitute robbery is not a new question. It has been held that, if there is an assault which would furnish a reasonable ground for fear, the robbery is complete. First Bishop (9th Ed.) § 438 (2); Tones v. State, 48 Tex. Cr. 363, 88 S. W. 217, 1 L. R. A., N. S., 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455.
“In State v. Lamb, 141 Mo. 298, 42 S. W. 827, it is held:
“ ‘Where an indictment charges a robbery to have been done violently and against the will, actual fear on the part of the person from whom the property was taken need not be proved, but will be presumed.’
“See, also, State v. Kennedy, 154 Mo. 268, 55 S. W. 293.
“In this case it was not essential to constitute robbery that the custodian of the money taken become hysterical and believe that she would meet death if she failed to immediately respond to the demands made. It is sufficient if the demand, with the display of firearms as shown by the evidence, cause her to stand aside and permit the money in her custody to be taken in the manner disclosed by the evidence. The delivery or taking the money is not rendered voluntary because the witness did not see fit to endanger her safety by attempting to resist. A threat may be made and be just as potent by some act or gesture as if made by words; and fear in a legal sense may result from such threat, although the person threatened may maintain composure. A defendant will hardly be heard to say that, by holding up another at the point of a gun, and taking property from his person or immediate presence, he is not guilty of robbery, merely because the person robbed was able to exercise self-control.”

There is no question but that the defendant in this case was properly charged with robbery with firearms. He could have been charged under the statute with conjoint robbery, but we have often held that one committing a crime may violate more than one statute, and it is within the discretion of the county attorney to determine under which statute charges will be preferred. We will here remark that the county attorneys should be careful in selecting the statute under which charges are filed, and this is especially true in robbery cases. We are of the opinion that the statute with reference to robbery with firearms was enacted by the Legislature to cover cases where the crime was more aggravated, and especially where banks or other places of business had been robbed, or where individuals have been killed or severely injured. This was the reason for providing that the death penalty or life imprisonment could be imposed if the facts justified. It will be noted, however, that this statute provides for a minimum penalty of not less than five years, and with this equalization there is not much difference in the punishment to be assessed for robbery with firearms and conjoint robbery.

The defendant questions the right of the court to give instruction No. 7, and the court’s refusal to instruct upon the question of conjoint robbery.

Instruction No. 7 was an instruction under the statute of robbery with firearms. This contention has been disposed of above, in tbe consideration of tbe evidence at tbe trial. It may be further noted that no exception was taken to instruction No. 7, and that no requested instructions were offered by defendant.

As to defendant’s contention that certain evidence was immaterial and prejudicial, we do not find that defendant was prejudiced by such testimony.

This brings us to the next question presented: That under the facts in this case the judgment and sentence of this defendant to a term of 30 years in the penitentiary is excessive.

We have carefully considered the cases cited by defendant: Armstrong v. State, 61 Okla. Cr. 352, 68 P. 2d 114; and Baker v. State, 64 Okla. Cr. 169, 78 P. 2d 320.

Each case must stand on its own record as to whether it is excessive under the facts, and as to whether some action in the trial of the case has caused the jury to render a verdict which would justify the conclusion that the same was rendered under passion or prejudice. The verdict of the jury and judgment of the court will not be modified unless some of the facts above stated exist and justice requires that relief be given. This court only acts as justice demands. The Governor of the state, acting upon the recommendation of the Pardon and Parole Board as the law now exists, can only extend mercy.

The record in this case does not reveal the disposition of the case against the two codefendants, Gunter and Houser. There was no appeal to this court from any judgment and sentence which they received. We have taken the liberty to examine the files in the office of the Pardon and Parole Board, and find that these parties entered pleas of guilty, and were each sentenced by the court to serve a term of seven years in the penitentiary, which they are now serving. This record further reveals that the codefend-ant Gunter had in 1931 been convicted of the crime of manslaughter in Canadian county, and was sentenced to serve a term of 40 years in the State Penitentiary. He was granted a 60 day leave of absence in 1944, and while on this leave of absence was convicted of committing this crime of robbery with firearms in Tulsa county, and received a seven-year sentence. It is also revealed by the record that he was convicted in Canadian county in 1939 of the violation of the Dyer Act, 18 TJ. S. C. A. § 408 (transporting a stolen automobile across the state line) and was sentenced to a term of 30 months in a Federal prison, and that he was paroled thereon.

The records in the Pardon and Parole Board also reveal that the codefendant Houser was convicted in Tulsa county in 1943 of the crime of assault to rape, and sentenced to serve 15 months in the State Penitentiary, and that he was paroled in August, 1944.

The record of the defendant is that he was charged in Tulsa county with the crime of larceny of an automobile in three separate cases in 1941. That he was sentenced to serve a term of five years in each of the three cases, the terms to run concurrently. He was discharged from the penitentiary in June, 1944.

It will be noted that each of the three defendants have bad records. These records will only be considered with reference to the question of whether the punishment assessed against the defendant, Jones, in this case is excessive. The two codefendants, Gunter and Houser, entered pleas of guilty, and were sentenced by the court to serve seven years in the penitentiary. The defendant was tried and a jury assessed the punishment at 30 years. There is a great discrepancy in the punishment assessed. The facts do not show that any one of the parties was more guilty than the other. No one was physically injured in the commission of the robbery. The defendant, Jones, was convicted upon the testimony of Miss Henry and Miss Ken-worthy who both positively identified him a month after the crime had been committed, and also at the trial. This is all of the evidence connecting him with the commission of the crime. Under these facts and circumstances, it occurs to us that justice demands that the sentence of 30 years in the State Penitentiary assessed against this defendant is excessive, and that justice demands a modification of this judgment and sentence to a term of 10 years in the State Penitentiary.

It is, therefore, ordered that the judgment and sentence of the district court of Tulsa county be modified from 30 years in the State Penitentiary to a term of 10 years in the State Penitentiary.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte MARY BEARD.
    No. A 10844.
    April 2, 1947.
    (179 P. 2d 484.)

      Gilmer, Weaver & Kennon, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and Elmer W. Adams, County Atty., of Tulsa, for the State.
   PER CURIAM.

The petitioner, Mary Beard, was charged by information in Tulsa county, Okla., with the crime of murder on March 5, 1947. At a hearing on application for writ of habeas corpus, before the Honorable Horace D. Ballaine, judge of the district court, the contention was therein made that the proof of the commission of murder was not evident and the presumption thereof not great, and the court so finding, the defendant was admitted to bail in the sum of $25,000.

Whereupon application by petition for habeas corpus was made in this court. The petition alleging that setting of the bond in the sum of $25,000 was excessive and equivalent to denying bail.

This court, after examining the transcript of evidence taken at the hearing upon the application in the district court and upon further hearing in this court, and after a full consideration of all the facts in the case, was of the opinion that the amount of bail fixed by the district court in said cause was excessive and should be reduced.

By reason of the foregoing facts, this court, on the 7th day of March, 1947, granted the writ and ordered the defendant released from the county jail of Tulsa county upon giving bail in the sum of $10,000, to be approved by the court clerk of Tulsa county, Okla.

In keeping with this order, the writ is hereby granted, in compliance with the order as above stated.


text:
    HAROLD E. SHIMLEY et al. v. HUNT, District Judge, et al.
    No. A-10841.
    April 2, 1947.
    (179 P. 2d 483.)
    David Tant, of Oklahoma City, for petitioners.
    Warren Edwards, Co. Atty., of Oklahoma City, for respondents.
   PER CURIAM.

Petitioner, Harold E. Shimley, Harold Byford, Patrick J. Kelly, and Charles Clifford Stanton filed their petition in this court seeking a writ of prohibition against the above-named respondents. It was alleged that the information charging the crime of kidnapping had been filed against petitioners in the district court of Oklahoma county, and that they were at that time confined in the Oklahoma county jail, and that respondent Albert C. Hunt, judge of the district court of Oklahoma county, had entered an order directing that petitioner Harold E. Shimley be transferred by respondent Dick Strain, sheriff of Oklahoma county, to the city jail of Oklahoma City; there to remain without bond to await trial and the further orders of the court; and that the petitioners Patrick J. Kelly and Charles Clifford Stanton, be transferred to the county jail of Canadian county without bond to await trial, and the further orders of the court.

It was further alleged that respondent Dick Strain was threatening to carry out said orders, and unless prohibited by this court said order would be carried into effect.

The above petition was filed on February 28, 1947, and on that date presented to this court, and an order was made setting a hearing on said petition for March 1,1947. On that date, counsel for the petitioners and the Attorney" General and County Attorney of Oklahoma county were present and it was agreed that said petition be not heard,, pending an agreement between the parties for a return of all petitioners to the Oklahoma county jail, pending-their trial in the district court of Oklahoma county.

This court has now been informed that said agreement, was carried out, and the issue before the court has become moot.

It is therefore ordered that the petition herein filed be and the same is hereby dismissed.


author: JONES, J.

text:
    JACK SADLER v. STATE.
    No. A-10630.
    April 2, 1947.
    (179 P. 2d 479.)

      R. H. Morgan, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Sadler was charged by information filed in the district court of Blaine county with the crime of grand larceny, was tried, convicted and sentenced to serve one year in the State Penitentiary and has appealed.

The information charged the defendant with the theft of an automatic .22 Winchester rifle on March 6, 1944, from one George Swayden.

Counsel for defendant presented two assignments of error:

1. The evidence is insufficient to show that the crime of larceny has been committed.

2. If the crime of larceny had been committed, it only amounted to petit larceny. These assignments of error will be considered together.

George Swayden testified that he was engaged in the general merchandising business in the town of Longdale, Okla. That he lived in a room in the back of his store building. The gun in question belonged to his son, Kelly Sway-den, who was in the Army and it was kept hanging on a peg with three other guns in the room where the witness lived. That his daughter, Louise Swayden, had charge of the management of the store; that on the night of March 6, 1944, his daughter left the store building to go to a basketball game; that witness was acquainted with defendant; that defendant came into the store a few minutes after his daughter had gone and stayed about 25 or 30 minutes; that defendant gave him a drink or two of whisky whiles he was there. The next morning he noticed that the .22 rifle was missing and immediately notified the sheriff. He did not give any one permission to take the rifle and it was taken without his knowledge or consent. A few days after the sheriff brought a gun to him which he identified as the one which had been stolen. On cross-examination, the witness denied having sold the gun and 100 pounds of sugar to the defendant for $25.

Louise Swayden testified that at the time her brother went into the Army, he left the automatic rifle with her father and it was kept in the back of the store in her father’s room; that the gun was hanging on a peg in the room on March 6th, but that the next morning, March 7, 1944, it was missing.

W. W. Mitchell testified that he had been the proprietor of a hardware and sporting goods store for about seven years. That in 1942, he sold a .22 Winchester automatic, model 74 gun, to Kelly Swayden. The witness testified that he had had eight years’ experience in buying and selling used guns, and that he was familiar with the fair market value of guns and rifles on March 6, 1944. The witness testified that he was acquainted with the condition of the rifle in question on March 6, 1944. That is was in good shape and that in his opinion, it would easily bring on the market the sum of $25. That he made an effort to buy the gun from George Swayden shortly before it was taken from the store but was refused. On cross-examination, the witness identified an exhibit as the sales price list of the Winchester Arms Company and stated that the minimum retail price according to the list for a gun similar to the one involved was $18.45. That the sum of $18.45 was the. minium price fixed by the Fair Trade Act, 78 O. S. 1941 § 41 et seq., but that there was no ceiling price that could be charged. That the catalog price as shown was for the year 1941, but that no new guns were furnished to dealers after 1942. The witness was shown a catalog of Shapleigh’s Hardware Company and he identified a similar rifle with the description set forth in the catalog which showed the retail price at $29.10 for 1942. On redirect examination, the witness testified that a second hand gun in good condition, on March 6, 1944, would bring more money than a new gun because there was no ceiling price on used guns.

Raymond Bell, a colored man, who was engaged in business in Watonga, testified that the defendant brought a rifle to him on the last Sunday in August, 1944. That he gave the defendant $10 for the gun with the agreement that the defendant could pay him $12.50 on the first of the next month and take back the rifle. That Sheriff Scott saw the gun in his place of business a few days after he had obtained it from defendant and the witness informed the sheriff where he had obtained the rifle.

E. C. Scott testified that he was the sheriff of Blaine county. That on March 7,1944, he was informed by George Swayden that a Winchester automatic rifle had been stolen from his store the night before. That in September, 1944, he had occasion to be in the place of business of Eaymond Bell in Watonga and there saw a rifle similar to the one which had been allegedly stolen from Swayden. That he talked to Bell about the rifle at that time and took possession of it. That the rifle he got from Bell was the one identified as State’s Exhibit A. That witness had bought and sold several guns and was familiar with the fair market value of the rifle in question on March 6, 1944, and that in his opinion the fair market value of said rifle on that date was $30. The witness further testified that a few days after he had obtained the rifle from Bell, he talked to defendant on the street at Watonga and defendant told him that he had purchased the gun from George Swayden, together with a sack of sugar for $25. That the defendant told him in that conversation that the gun which the sheriff got from Bell was the same gun he got from George Sway-den.

Eaymond Bell, being recalled, testified that at the time defendant brought the gun to his place, defendant told him that the gun belonged to his son who was in the Army.

M. E. Haws testified on behalf of defendant that he had been engaged in the hardware business at Watogna for about 25 years. That he had a contract with the Winchester Arms Company, and introduced a price list of Winchester’s setting forth fair trade prices of Winchester guns. That the gun in question was listed in the contract for the year 1941, at the price of $18.45; that the fair market value of the gun in question on March 6, 1944, was about $15. On cross-examination, tbe witness admitted that used guns in good condition were selling in March, 1944, for more than they sold for when new.

Lavern Albin testified that he had been engaged in the hardware business in Watonga since 1932. That the fair market value of the gun in question on March 6, 1944, was about $15.

Walter O’Neal testified that he was present with the defendant on the night of March 6, 1944, when defendant bought some sugar off of Swayden and that he helped to carry out the sugar. That he did not see the gun taken out to the pickup truck, but that Sadler gave Swayden $25 for a gun and sack of sugar. Witness admitted that he and the defendant had been partners in the whisky business and that both had entered a plea of guilty in the Federal court to the charge of making whisky.

The defendant testified in his own behalf that he had been convicted for selling whisky to minors, and also had been convicted in Federal court on a plea of guilty to making whisky in 1944. That he went to Swayden’s store on March 6, 1944, to buy some sugar and Swayden told him to wait until after the girl went home that night. That he bought the sugar from the defendant for $10 and two gallons of whisky, and that night he gave the defendant $15 for the gun. That George Swayden was intoxicated at the time the deal was made.

The fact that the rifle might have been purchased new in 1942 for $20, or less, was not the controlling factor in determining its fair reasonable market value at the time it was allegedly stolen. The advent of the war increased the demand for firearms of all kinds and with the increased demand came a corresponding increase in their value. The witnesses both for the state and the defendant discussed this angle at length in their testimony and all agreed that a good used gun had more value in 1944 than a new gun had in 1941 or 1942. The witnesses for the state fixed the value of the gun in excess of $20, which would have been sufficient to constitute the act of taking it as grand larceny. The witnesses for defendant fixed the value of the gun at about $15, but this conflict in the testimony raised an issue for the determination of the jury.

In he case of Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111, 112, this court stated:

“In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury can reasonably conclude that accused is guilty as charged.”

Where there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts. Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389.

Tké testimony of George Swayden, if believed by the jury, was sufficient to show that the crime of larceny had been committed, and there is ample evidence in the record from which the jury could reasonably conclude that the fair reasonable market value of the gun at the time it was taken was in excess of $20. There is no showing made nor contention presented that the verdict of the jury was prompted by passion or prejudice.

The judgment and sentence of the district court of Blaine county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    RICHARD ANDREWS v. STATE.
    No. A-10703.
    April 9, 1947.
    (179 P. 2d 491.)

      Garrett & Garrett, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Chester Norman, County Atty., of Muskogee, for defendant in error.
   BAREFOOT, P. J.

Defendant, Richard Andrews, was charged in the district court of Muskogee county with the-crime of. robbery with firearms, was tried, convicted and sentenced to serve a term of 30 years in the State Penitentiary, and has appealed.

Defendant states in his brief filed in this case:

“The only question presented by this appeal is: The Court erred in refusing to grant the plaintiff in error a continuance for the purpose of securing the testimony of nonresident witnesses.”

The record discloses that defendant was arraigned in the district court of Muskogee county on June 1, 1945, where he had been charged jointly with Leonard Stokes by information filed on May 21, 1945. The case was assigned for trial on June 12, 1945, and on June 7, 1945, a list of witnesses with their post office addresses was served upon defendant. On June 9, 1945, defendant filed a notice of his intention to apply for a commission to take depositions of out-of-state witnesses, in compliance with Tit. 22 O. S. 1941 § 782. On the same date, June 9, 1945, defendant filed a motion for continuance, which is as follows:

(Omitting the caption)
“Comes now Richard Andrews, the defendant above named and respectfully shows this Honorable Court that he is charged by information with the crime of Armed Robbery, and that he was arraigned in this Court on the 1st day of June, 1945, and entered thereto a plea of not guilty, said arraignment being more than 10 days preceding the date of his trial which has been set for June 12th, 1945, and that an issue of fact has been joined herein.
“That said defendant cannot safely proceed to trial on said date for the want of material testimony which he has with due diligence been unable to obtain; that it is necessary for the defendant to have the testimony of Charles Hawkins, who is at this time a resident of Portland, Oregon, and of Wagoner Harrison, who is at this time a resident of Richmond, California; that this defendant was of the opinion and had been lead to believe, and did believe, until the 7th day of June, 1945, that the witnesses Charles Hawkins and Wagoner Harrison would be available to testify at the trial of this case as witnesses for the defendant; that the defendant until said time ■believed that the testimony of these witnesses could be obtained without the taking of a deposition; that the defendant prior to the 7th day of June, 1945, had been told by these witnesses that they would be present to testify in the trial of this case and the defendant immediately upon the learning of the setting of his case for trial, set out to locate said witnesses in order to have a subpoena issued and served on them and on the 7th day of June, 1945, learned for the first time as a matter of fact, subpoenas could not be served on said witnesses for the reason that they are temporarily removed from their homes at Muskogee, Oklahoma, to the addresses above given, and for said reason the defendant has not caused subpoenas to be issued for said witnesses; that the defendant is informed and believes and therefore alleges as a fact that the absence of the said Charles Hawkins and Wagoner Harrison is only temporary and that should this case be continued until the next term of Court that said witnesses will be available as witnesses for the defendant, or that should the defendant be granted time within which to take the depositions of said witnesses, he can obtain the testimony of said witnesses; that the defendant did, on the 9th day of June, 1945, serve five days written notice, as prescribed by the Statutes of the State of Oklahoma, upon the Honorable Chester Norman, County Attorney of Muskogee County, Oklahoma, of his intention to apply to this Honorable Court for commissions to be issued for the taking of depositions of said witnesses; that the said five days written notice would not expire until June 14th, 1945, after the trial date set for the trial of this case; that the testimony of said witnesses is material; is not cumulative and cannot be obtained from any other source; that the defendant can prove by the witnesses Charles Hawkins and Wagoner Harrison the following state of facts: that at the time this defendant is charged to have committed the crime as charged against him, the alleged robbery with firearms of one Warren H. Smart, that this defendant is not guilty of said charge, but was with the two above named witnesses in the City of Muskogee, Oklahoma, on the night of the alleged robbery, January 6,1945; that the above named witnesses and this defendant were together that night in the City of Muskogee, Oklahoma, from eight o’clock p. m., until the hour of eleven forty-five p. m.; that this defendant was with them for these three hours forty-five minutes upon the streets of the City of Muskogee, Oklahoma, and in and out of various places of business in said City during this time; that this defendant was never at any time out of their sight, and that this defendant was not in an automobile that night between the hours above mentioned, and did not and could not have been in an automobile with the prosecuting witness, Smart, or any other person that night; that the defendant was not in the town of Ft. Gibson of Tahlequah, Oklahoma that night, or any other place other than the city of Muskogee, Oklahoma, and that the defendant is not and could not be guilty of the crime charged against him.
“Affiant further states that he has used due diligence to obtain the presence of all of said witnesses; that the testimony of all of said witnesses is material; that none of said witnesses are related to the affiant by blood or marriage, and that none of said witnesses have any interest in the outcome of this cause; that this affidavit and motion is made not for the purpose of. delay hut that justice may be done.
“Wherefore, the defendant prays the Court to grant a continuance of this cause.
/s/ Richard Andrews, Defendant.
“State of Oklahoma, County of Muskogee, ss.
“Before me, the undersigned Notary Public, personally appeared Richard Andrews, who, being duly sworn, acknowledged to me that he has read the above and foregoing affidavit and motion and that he is acquainted with the allegations therein contained and that each and every material allegation therein is true and correct.
Seal /s/ Elizabeth Yogel,
Notary Public.
“My Com. Exp.: Jan. 24, 1946.”

The record does not reveal that the state filed any written response to this motion, but shows that the court on June 11, 1945, entered an order overruling the motion for continuance. The defendant was tried on June 12, 1945, and was found guilty by the jury, who could not agree upon the punishment, and the court entered judgment and sentenced defendant to serve a term of 30 years in the State Penitentiary at McAlester.

To substantiate his contention, defendant has cited in his brief a number of cases from this court: Harris v. State, 9 Okla. Cr. 658, 132 P. 1121; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312; Madison v. State, 6 Okla. Cr. 356, 118 P. 617, Ann. Cas. 1913C, 484.

The state has cited the following cases: Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763, citing Hill v. State, 19 Okla. Cr. 406, 200 P. 253; Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Gorum v. State, 67 Okla. Cr. 75, 92 P. 2d 1086; Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629.

We have carefully examined all of the above cases, and the many cases cited and quoted therein. It would unduly lengthen this opinion to review all of them. To a great extent, each case depends upon the particular facts of that case. Throughout all of the cases, certain principles of law with reference to the overruling and sustaining of a motion for continuance are announced. It is announced in all of the above cases that the granting or refusing a continuance in a criminal case is largely a matter within the discretion of the trial court. In a number of the cases it is stated that the court in considering the motion will consider the evidence adduced at the trial for the purpose of determining whether the alleged testimony was probably true, and also whether defendant had been prejudie-ed by reason thereof. In all of the above cases, it is held that it is necessary under the statute (Tit. 12 O. S. 1941 § 668) that the defendant show that he has exercised due diligence with reference to securing the evidence and testimony of absent witnesses; and also that it is incumbent upon defendant to show that there was a probability of Securing the attendance of the absent witness at a future time, or of procuring his testimony. The cases have in many instances discussed the question of what constitutes due diligence with reference to the facts presented in the individual case.

In a number of the cases above cited, the court has held that although there was error in overruling the motion for continuance, the entire record was such that a modification of the judgment and sentence was justified, and that this relief was all that the facts justified. See also Owen v. State, 13 Okla. Cr. 195, 163 P. 548.

Applying the above well recognized rules of law to the facts in the instant case, we find from the record that the information against this defendant was filed on May 21, 1945; he was not arraigned until June 1, 1945; he did not file his notice to take depositions until June 9, 1945, and his motion for continuance on the same day; the motion for continuance was overruled on June 11, 1945, and he was tried on June 12,1945.

Tit. 22 O. S. 1941 § 782, provides:

“When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.”

Section 783 of the same Title provides:

“Application must be made upon affidavit stating:
“1. The nature of the offense charged.
“2. The. state ■ of the proceedings in the action and that an issue of the fact has been joined therein.
“3. The name of the witness and that his testimony ■Is material to the defense of the action.
“4. That the witness resides out of the state.”

Section 784 is:

“The application may be made to the court or judge himself, and must be upon five days’ notice to the county attorney.”

Section 785 provides:

“If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order- must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.”

Succeeding sections of the statute outline the procedure to be followed in taking depositions, to which reference need not be made.

The trial court evidently found that defendant had not used due diligence in attempting to secure the evidence of the witnesses named in the affidavit; and took into consideration the further fact that the witnesses named were ex-convicts the defendant had met while he was serving terms in the penitentiary, and that their residence was shifting and there was doubt as to whether their evidence could be secured if the case were continued. The affidavit upon its face did not give a complete statement of all facts necessary to grant a continuance.

The court at the time the motion for new trial was considered evidently took into consideration the fact as to whether the evidence of the witnesses was true in the light of the evidence presented by the state. As an appellate court, we are not in a position to say that the trial court was wrong in these deductions, and that his actions were beyond his sound discretion. The evidence upon which the state relied was that of identification of the defendant as being one of the parties who committed the robbery.

Warren H. Smart, of Muskogee, testified that when he stopped for a traffic light in the city of Muskogee on the night in question, two men got in his car, and at the point of a gnn made him drive out of town, where he was robbed of his money and watch. (The watch was later recovered.) He positively identified the defendant as one of the men who entered his car and later robbed him of his billfold and watch. They drove around for some time, had trouble with his car, and finally got it in a ditch. While they were out of the car, an automobile in which two girls and two soldiers were riding came along and stopped to render assistance. Only one of the soldiers testified, and he and both of the young ladies positively identified defendant as one of the men they picked up on the roadside with Mr. Smart, and as the man who held the gun in his hand and directed where their car should be driven, forcing them to drive around for some two or three hours. The first time the young ladies were called to the police station, five men were lined up for inspection, but they failed to identify any of the parties as those involved in the robbery. Néither the defendant nor his codefendant was in that line-up. When again called to the police station, they identified defendant who was lined up with four other men.

The defendant took the witness stand in his own behalf and on cross-examination stated that he had on three previous occasions been convicted and served terms in the State Penitentiary for larceny of an automobile, robbery, and attempted robbery by force; and that on one occasion he escaped from the penitentiary, and had attempted to escape on two other occasions.

From the above statement and the reading of the record and review of the evidence, it may be said that the evidence of the two absent witnesses could have been material as to the defendant’s guilt. It is very doubtful, however, if their evidence would have changed the result of the trial. The fact that they were ex-convicts, and that defendant had met them while confined in the State Penitentiary, and the probability of the untruth of their testimony in view of the evidence in the case would not have changed the result of the trial. It would have been better had the county attorney agreed that the affidavit could have been read to the jury as the testimony of the absent witnessess, but he did not see fit to do so.

Defendant has cited the case of Madison v. State, 6 Okla. Cr. 356, 118 P. 617, Ann. Cas. 1913C, 484, which holds that it is necessary that the county attorney admit the absolute truthfulness of the affidavits if admitted. This case has been overruled by the later decisions of this court, and is not the rule. Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 299, L. R. A. 1918A, 312; Sullivan v. State, 41 Okla. Cr. 371, 273 P. 372; Riley v. State, 40 Okla. Cr. 369, 269 P. 377.

We have come to the conclusion that while the court did not commit error in overruling the motion for continuance in this case, as a matter of law, but by reason of the county attorney refusing to agree to the reading of the affidavit of the defendant as the testimony of the absent witnesses, and all the circumstances, that justice demands that the judgment and sentence of 30 years given by the court should be modified to a term of 20 years.

As so modified, the judgment and sentence of the district court of Muskogee county is affirmed.

JONES and BRETT, JJ., concur.


text:
    S. L. RYALS v. STATE.
    No. A-10738.
    April 9, 1947.
    (179 P. 2d 482.)
    Sam Y. Colby, of Madill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell, A. Hollo-man, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was sentenced on October 17,1945, to serve 30 days in the county jail and pay a fine of $50 upon conviction for the crime of illegal possession of intoxicating liquor.

The Attorney General has filed a motion to dismiss the appeal for the reason that more than 120 days have elapsed since the judgment and sentence was pronounced before the appeal was filed in this court.

The record reveals that the appeal was filed in this court April 15, 1946, or approximately six months after sentence was pronounced.

Under the provisions of 22 O. S. 1941 § 1054, an appeal from a conviction in a misdemeanor case must be perfected within 60 days from the date judgment and sentence is pronounced in the trial court, unless the trial court for good cause shown extends the time in which such appeal may be taken for a period not exceeding 60 days, making a maximum of 120 days in which an appeal may be taken in a misdemeanor case.

Unless the appeal is filed within the statutory period, this court has no jurisdiction to hear and determine the appeal. Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99; Davidson v. State, 82 Okla. Cr. 152, 167 P. 2d 381.

This motion to dismiss appeal was set for hearing; no response was filed on behalf of the defendant and no appearance made at the time the case was set for oral argument. Under the record as herein above disclosed, it appears that the motion to dismiss the appeal should be sustained.

It is therefore ordered that the appeal is dismissed and the cause is remanded to the county court of Marshall county with directions to cause its judgment and sentence to be carried into execution.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    BILL BROWN v. STATE.
    No. A-10660.
    April 9, 1947.
    (179 P. 2d 478.)

      Willis & Manning, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

This is an attempted appeal from a conviction sustained by the defendant in the county court of Major county.

The verdict of the jury was returned on March 6,1945. Motion for new trial was filed on March 9, 1945. Because of the illness of the defendant the pronouncement of judgment and sentence in accordance with the verdict of. the jury was postponed until April 19, 1945 at 10:00 a.m. On April 19, 1945, the motion for new trial was overruled and judgment and sentence was entered in accordance with the verdict of the jury. No extension of time was ever asked or given to the defendant to file his appeal in the Criminal Court of Appeals. Tlie appeal was filed in the Criminal Court of Appeals on July 10, 1945, which was more than 60 days after the rendition of the judgment.

On behalf of the state, the Attorney General has filed a motion to dismiss the appeal for the reason that it was not taken within the 60 days prescribed by statute, 22 O. S. 1941 § 1054. No response was filed by the defendant to the motion to dismiss.

In Jump v. State, 76 Okla. Cr. 9, 133 P. 2d 561, this court held:

“When an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute (Section 3192, O. S. 1931, 22 O. S. 1941 § 1054), the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.”

See, also, Gunter v. State, 13 Okla. Cr. 83, 162 P. 231; Wilkerson v. State, 76 Okla. Cr. 152, 134 P. 2d 998. Miller v. State, 78 Okla. Cr. 112, 144 P. 2d 120.

A failure to file the appeal in this court within the time allowed by the law is fatal to the appeal and this court has no discretion to determine the appeal unless it is taken within the time prescribed by statute.

For the reasons hereinabove stated, the purported appeal herein should be dismissed and the cause remanded to the trial court with directions to enforce its judgment and sentence. It is so ordered.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    Ex parte HENRY W. CONWAY.
    No. A-10817.
    April 16, 1947.
    (179 P. 2d 699.)
    Woodrow George, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent R. B. Conner, Warden.
   BRETT, J.

Henry W. Conway was tried and. convicted of the offense of “second degree forgery” in the district court of Cartér county, Okla., on May 11, 1946, and was sentenced to serve seven (7) years in the penitentiary. He now seeks his release from prison in this proceeding, by petition for writ of habeas corpus.

The preliminary complaint, filed before the committing magistrate, alleged in the descriptive label and the charging part as follows, to wit:

“* * * on the 20th day of February, 1946, Henry W.„ Conway, alias * * *, did commit the crime of Forgery— First Degree, in the manner and form as follows, to wit:
“ ‘That Henry W. Conway, alias Norman R. Smith, in the county and state aforesaid, on the day and year aforesaid, did, wilfully, unlawfully, fraudulently, falsely and feloniously, make and forge a certain instrument in writing, the same purporting to be the act and deed of one R. B. Brooks, and purporting to convey the rights and property of the said R. B. Brooks, and to effect the said R. B. Brooks in the property therein described, said instrument in writing, a check, purporting to be the act and deed of R. B. Brooks, with the unlawful, wrongful, fraudulent and felonious intent on the part of him, the said Henry W. Conway, alias Norman R. Smith, then and there to cheat and defraud and injure the said G. M. Cunningham, said check and instrument in writing being in words and figures as follows, to wit:
First National Bank No. 1806
Ardmore, Oklahoma, Feb. 20, 1946
Pay to Norman Smith Or Bearer $18.50
Eighteen Dollars and 50/100....................Dollars
No Account R. B. Brooks
Endorsed on back as follows:
Norman Smith
312 E. Main
contrary to the form of the Statute in such cases, made and provided, and against the peace and dignity of the State of Oklahoma.’ ”

Before the committing magistrate, the petitioner waived preliminary hearing and was bound over to district court.

In the district court, the petitioner was charged by information; the descriptive label and the charging part as amended alleged as follows, to wit:

“* * * on or about the 20th day of February, * * * One Thousand, Nine Hundred and Forty-six, * * *, commit the crime of Forgery—
Second Degree (Interlineation)
First Degree in the manner and form as follows, to wit:
“ ‘That Henry W. Conway, alias Norman B. Smith, in the county and state aforesaid, on the day and year aforesaid, did, wilfully, unlawfully, fraudulently, falsely and feloniously, make and forge a certain instrument in writing, the same purporting to be the act and deed of one B. B. Brooks, and purporting to convey and rights and property of the said B. B. Brooks, and to effect the said B. B. Brooks in the property described therein, said instrument in writing, a check, purporting to be the act and deed of B. B. Brooks, with the unlawful, wrongful, fraudulent and felonious intent then and there on the part of him, the said Henry W. Conway, alias Norman B. Smith, to cheat and defraud and injure the said G. M. Cunningham, said check and instrument in writing being in words and figures as follows, to wit:
First National Bank No. 1806
Ardmore, Oklahoma, Feb. 20, 1946
Pay to Norman Smith or Bearer $18.50
Eighteen Dollars and 50/100....................Dollars
No. Acct. B. B. Brooks
Endorsed on back as follows:
Norman Smith,
312 E. Main
contrary to the form of the Statutes, in such cases made and provided, and against the peace and dignity of the State.’ ”

The only difference in the preliminary complaint, the information originally filed, and the amended information, is that the word “First” was stricken and the word “Second” was substituted, by interlineation, therefor, in the descriptive label. This offense was predicated upon the provisions of § 1577, Title 21 O. S. A., as follows, to wit:

§ 1577. “Notes, checks, bills, drafts — Sale, exchange or deliyery.—

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any considertion with the like knowledge and intent, is guilty of forgery in the second degree. E. L. 1910, § 2629.”

The facts as disclosed by the record show the forged check was presented to Mr. G. M. Cunningham, in exchange for merchandise and cash, in the amount of $11.18. The record brings this case within the foregoing statute and the rather late case of Dickerson v. State, 74 Okla. Cr. 229, 124 P. 2d 750, construing the same, covering “the selling, exchange, or delivery for a consideration, of a forged check,” and also making it an offense for one “to offer for sale, exchange, or delivery, for any consideration, such forged check.”

The petitioner contends that the court was without jurisdiction to make and enter the judgment and sentence herein. This contention is based upon the theory that he was originally charged in the information with the offense of “First Degree Forgery” and after the court overruled the defendant’s demurrer to the information the state was permitted to amend by interlineation, reducing the charge to “Second Degree Forgery” by striking the word “First” and substituting the word “Second”: that thereby he was compelled to answer to a different charge than the one with which he was originally charged. The petitioner does not contend nor was any change made in the body or substance of the information. The record shows the only change that was made was in the descriptive label from “First” to “Second” degree forgery. He further contends that he was compelled to defend said charge over his objection, without ever having waived a preliminary examination on the charge contained in said amended information. To these contentions of the petitioner, the state filed a demurrer. No other questions are raised by the record, the petition, or the demurrer.

Under the provisions of § 304, Title 22, O. S. A., an information may be amended after plea or on the order of the court where the same can be done without material prejudice to the rights of the defendant. The foregoing amendment, as complained of, was made with the permission of the court after the demurrer of the defendant to the information was overruled and before the case proceeded to trial. In Butler v. State, 78 Okla. Cr. 133, 145 P. 2d 215, 216, this court said:

“We have often held that an information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused.”

Also, Stephens v. State, 73 Okla. Cr. 349, 121 P. 2d 326, wherein this court laid down the same rule in interpreting the foregoing statute. Also, Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258; Ward v. State, 34 Okla. Cr. 296, 246 P. 664; Hammons v. State, 47 Okla. Cr. 297, 298 P. 1076; Little v. State, 21 Okla. Cr. 1, 204 P. 305. In Thompson v. State, 52 Okla. Cr. 139, 3 P. 2d 251, construing the foregoing statute, and decisively in point with the case at bar, this court said:

“The county attorney in drawing the information labeled the offense “first” degree rape, although the charging part of the information alleges only second degree rape. When the motion to quash on this ground was presented, the court permitted the county attorney to change the designation of the crime from “first” to “second” degree rape, the word “first” being stricken out and the word “second” inserted. Under section 2512, Comp. Stat. 1921 [22 O. S. 1941 § 304], the amendment was proper, as one of form only.”

As was said in Lowe et al. v. State, 7 Okla. Cr. 32, 121 P. 793, 794:

“In this case, however, the amendment complained of did not affect the validity of the information in any sense. It charged the same offense before as it did after the amendment.”

The same may be said of the amended information in the case at bar. In Bruning v. State, 63 Okla. Cr. 1, 72 P. 2d 393, 394, making no reference to the permissibility of amendments under § 304, Title 22, O. S. A., this court said:

“It appears that the name given to the crime charged in the information is forgery in the first degree, but by the charging part the defendants are charged with forgery in the second degree.
“A mistake in this particular is an irregularity and is not fatal. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. * * *
“A wrong name given to a crime in the preliminary' part of an information is an irregularity only, and is not fatal. The charging part of the information must be looked to, to determine the character of the offense.”

The Bruning case is also decisively in point with the case at bar. When the charging part of the information, in the instant case, alleged a violation of § 1577, Title 21, O. S. A., in the preliminary complaint, in the original information, and in the amended information, the substance of the charge could not be controlled by the descriptive label that the prosecutor may have inadvertently placed thereon. See, also, Lancaster v. State, 2 Okla. Cr. 681, 103 P. 1065, permitting amendment by striking out the name of one person to whom the defendant allegedly sold whisky, in violation of law. Also, Orum v. State, 45 Okla. Cr. 193, 282 P. 899, wherein the county attorney was permitted to amend the information by striking the word “company” and substituting in its stead, the word “corporation.” See, also, Marks et al. v. State, 69 Okla. Cr. 330, 102 P. 2d 955; Leyerle v. State, 31 Okla. Cr. 179, 237 P. 871; all hold amendments such as we have under consideration in the instant case, going only to form, are not prejudicial to the defendant. We therefore conclude that the substitution of the word “second” for the word “first” in the information, changing the designation or the descriptive label of the crime from “first” to “second” degree forgery, involved no change in the charging part of the information and was proper, being an amendment of form only.

The petitioner’s contention that he was compelled to defend, over his objection, the charge as made in the amended information, without waiving a preliminary examination thereon, is without merit since it must stand or fall with the first contention. The preliminary complaint, the original information, and the amended information, being identical except for the words “first” and “second,” the lack of merit in this contention is apparent. The preliminary hearing upon the complaint was sufficient foundation for the first information, and the amended information being substantially identical, the complaint was an equally adequate foundation for the amended information. In Sellers v. State, 27 Okla. Cr. 245, 226 P. 109, 110, the contention was made that permitting interlineation of an information charging “conjoint robbery” so as to allege “good and lawful money of the United States of the value of $120.00” was equivalent to ordering a new information. In answer to that contention, this court said:

“Where, as here, the amendment is immaterial, a second preliminary hearing will not be required as a foundation supporting the new information. If the preliminary hearing had was sufficient foundation for the first information, it was equally adequate for the second, both being in effect the same. The purpose of a preliminary hearing is to ascertain whether a crime has been committed, and, if so, the nature of the accusation to be made, and if there is probable cause to believe the accused committed the crime, and such probable cause is shown to give the accused advance notice of its character, to enable him to prepare for trial before a jury. Where the preliminary hearing already had meets these requirements as to a second information, or an amended information, the state will not be required to do a useless thing in holding a second preliminary trial duplicating the first. Filler v. State, 23 Okla. Cr. 282, 214 P. 568; White v. State, 23 Okla. Cr. 198, 214 P. 202; Tipton v. State, 23 Okla. 86, 212 P. 612, [31 A. L. R. 1074].”

In Paul v. State, 41 Okla. Cr. 164, 272 P. 485, 486, this court said:

“The preliminary complaint, before the magistrate charged embezzlement by the cashier and director of a bank. This is the same charge contained in the amended information upon which defendant was tried and the conviction had. It is proper to allow an information to be amended either before or after plea as provided by section 2512, Comp. Stat. 1921, [22 O. S. 1941 § 304]. Elkins v. State, 29 Okla. Cr. 175, 233 P. 491, and authorities cited. Where an information charging a felony is amended, and the charge in the amended information is substantially the same as the charge in the preliminary complaiint before the committing magistrate, the contention that the accused should have the right to a preliminary hearing is untenable;” citing Sellers v. State, supra.

In view of these authorities, we are compelled to conclude that the petitioner’s second contention is likewise without merit. The petitioner relies upon Kelly v. State, 12 Okla. Cr. 208, 153 P. 1094. The Kelly case is clearly distinguishable from the case at bar. In that case, the information as originally drawn charged the forgery of the name of J. J. Kelly to the release of a real estate mortgage. The action was originally brought under the provisions of § 2621, R. L. 1910, the same as § 1561, Title 21, O. S. 1941, defining an offense against property. After all the evidence had been introduced in the trial, the state was permitted to amend the information, so as to charge the making of a false certificate of acknowledgment, as a notary public, under the provisions of § 2626, R. L. 1910, the same as section 1574, Title 21, O. S. A., completely changing the character of the offense charged, calling upon the defendant to answer to a new and different charge, under an altogether different statute. Consequently, under the circumstances in that case, Kelly was denied his constitutional right to a preliminary hearing on the new or amended charge of which he was convicted. We are confronted with no such situation in the instant case, since the charging part of the preliminary complaint, the original information, and the amended information was in substance identical. The admendment herein involved was only one of form and did not change the nature of the offense, as the amendment did in the Kelly case. However, as was said in Arms v. State, 49 Okla. Cr. 34, 292 P. 76, 77:

“It is, of course, not permissible' to allow an amendment to change the nature of the offense or to charge a different offense.”

The record in the instant case discloses no such situation and, there appearing no prejudice to the petitioner’s substantial rights, the demurrer is sustained and the petition for writ of habeas corpus is dismissed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    Ex parte JUANITA THELMA SWEEDEN.
    No. A-10847.
    April 16, 1947.
    (179 P. 2d 695.)

      Charles X). Crandall and John Worley, both of Oklahoma City, for plaintiff.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for defendant.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Juanita Thelma Swee-den, to secure her release from confinement in the State Industrial School for White Girls at Tecumseh.

The verified petition alleges that the petitioner was adjudged a delinquent minor in November, 1945, and was committed by the county court of Bryan county to the State Industrial School for White Girls on April 18, 1946. The petition further alleges that the petitioner became 18 years of age on January 18, 1947, but that the superintendent of said Industrial School refused to release her from said institution after she became 18 years of age and that she is still confined at said institution.

The verified petition further alleges that the restraint is illegal and unauthorized in that the statutes of Oklahoma do not authorize the continued confinement of a female after she has arrived at the age of 18 years.

The superintendent of the State Industrial School for White Girls filed a response to the petition in which she admitted that the petitioner was 18 years of age on January 18, 1947, and alleges that she is detained in her-institution as a ward of the county court of Marshall county, Oklahoma; that by virtue of section 112, Tit. 10, O. S. 1941, the county court of Marshall county having adjudged the.petitioner a delinquent when she was 17 years of age has continuing jurisdiction over such delinquent until she arrives at the age of 21 years; and that by reason thereof the detention of the petitioner under the order of the county judge of Marshall county is legal, and that said petition should he denied.

This court assumed original jurisdiction to determine the question presented by reason of the apparent conflict in the statutes as to whether a female who has been adjudged a juvenile delinquent while under the age of 18 years may still be restrained of her liberty and confined. in an institution after she has reached her majority, or 18 years of age.

The statute under which the respondent claims authority for restraining the petitioner after she becomes 18 years of age reads as follows:

“Every child who shall have been adjudged delinquent, whether allowed to remain at home, or placed in a home, or committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of court, or shall have reached the age of twenty-one years, and such court may during the period of wardship cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution.” Tit. 10 § 112, O. S. 1941.

This statute was adopted by the Legislature in 1909 and was set forth as section 4424 in the Revised Laws of 1910.

At the 1909 Legislative Session there was also passed an act pertaining to the commitment of boys and girls to the state institutions, which statute is now Tit. 10, § 238, O. S. 1941, and provides:

“It shall be the duty of said Board of Control to receive to the extent of the means placed at its disposal and conditions afforded by the buildings belonging to said school, all persons committed to its care and guardianship under the provisions of this Article, and all boys committed thereto shall be committed until they arrive at the age of twenty-one years unless sooner reformed. And all girls committed thereto shall be committed until they arrive at the age of eighteen years unless sooner reformed.”

In 1917, the Legislature adopted a new chapter pertaining to the State Industrial School for White Grirls and among the different paragraphs of said chapter which became a law at that time appears the following, Tit. 10 § 218, O. S. 1941:

“It shall be the duty of the superintendent to receive to the extent of the means placed at his or her disposal and the conditions afforded by the buildings belonging to said institution, all girls committed to its care and guardianship under the provisions of this act. Such commitment shall continue in force and effect until the girl so committed shall have arrived at the age of eighteen (18) years, unless sooner discharged as provided herein.”

It is the contention of the petitioner that the passage by the Legislature of the act, Tit. 10 § 238, O. S. 1941, supra, shows that the Legislature never intended to vest the juvenile court with authority to control the custody and habits of a mature adult and it is further reasoned in petitioner’s brief that the passage by the Legislature of the act in 1917, Tit. 10 § 218, O. S. 1941, repealed by implication any authority which had existed prior thereto attempting to vest jurisdiction in the county court over females after they have arrived at the age of 18 years.

We are in agreement with the contention of counsel for petitioner, although this court, by way of dicta in the case of Ex parte Wilkins, 78 Okla. Cr. 135, 145 P. 2d 438, indicated that where a female child is once adjudged a delinquent, the county court has a continuing jurisdiction over such child as a ward of the court until she reaches the age of 21 years. In the Wilkins case, the two statutes relied upon by petitioner were not considered in connection with Tit. 10 § 112, O. S. 1941, and the statement of the court in the Wilkins case pertaining to the alleged continuing jurisdiction of the county court over a female after she arrives at the age of 18 was dicta, and does not control in the disposition of the instant case.

We are familiar with the oftannounced. rule that repeals of statutes by implication are not favored, but it is also well settled that the Legislature may, within constitutional limitations, express its will in any form which it sees fit and a repeal is effected where the intent to repeal is clearly evidenced; and where two statutes cover the same subject and the statute last adopted is repugnant to and irreconcilable with the provisions covering the same subject in the first statute, the latest expression of the Legislature will govern. City of Pawhuska v. Pawhuska Oil & Gas Company, 64 Okla. 214, 166 P. 1058; James v. Board of Commissioners of McCurtain County, 103 Okla. 141, 229 P. 554; Hines et al. v. Harmon, 178 Okla. 1, 61 P. 2d 641.

The duties of the respondent as superintendent of the school are fixed by statute, and under the express provision of the 1917 Act, Tit. 10 § 218, O. S. 1941, she has no authority to detain petitioner in the institution after she has arrived at the age of 18 years. All through the various acts pertaining to juveniles and the duties of the Board of Affairs and the State Superintendent in connection therewith, with the single exception of the language used in Tit. 10 § 112, O. S. 1941, supra, there is shown the singleness of purpose of the Legislature to restrict the authority of the county court and State Superintendent of the Industrial School for White Girls to those girls who are minors, that is under the age of 18 years.

Tit. 15 § 13, O. S. 1941, defines minors:

“Minors except as otherwise provided by law are:
“1. Males under twenty-one years of age.
“2. Females under eighteen years of age.
“The periods thus specified must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.”

All other persons are adults, Tit. 15 § 14, O. S. 1941.

Tit. 10 § 111, O. S. 1941, as amended by the Legislature in 1945, provides:

“In no case shall a child * * * be committed to an institution after such child has reached eighteen (18).”

While the Legislature as shown by the statutes above quoted could have authorized the commitment of boys to the State Training School for Boys until they arrived at the age of 21 years, they have restricted the commitment of girls to the State Industrial School until they arrive at the age of 18 years.

If we should sustain the contention of the respondent, a curious anomaly would result. After a girl attains the age of 18 years, she becomes an adult, and as such she can make legal contracts, including a contract of marriage. She may engage in her own business, travel when and where she pleases within the United States, and can do the many innumerable things an ordinary adult can do.

If this court should hold that under the statutes girls should be released from the state institution when they reach the age of 18 years, but that they should be sent back to tie county court from which they had been committed where the county court could exercise a continuing jurisdiction for three more years, until they reach the age of 21 years, then the question arises as to what recourse the county court would have against the mature woman who should refuse to obey his orders. Suppose the adult person sent back by the state institution to the county court married without permission or approval of said court, or assume that the mature woman decided to leave the jurisdiction of the juvenile court, what could the court do? The adult woman of 18 could not be prosecuted as a delinquent child, and it is clear that the juvenile court would be impotent to act under any of such circumstances. Of course, if the person on attaining her majority commits any crime, she is subject to trial and punishment for such offense the same as any other adult.

The Legislature in the exercise of its wisdom and discretion has fixed the age of 18 years as the time when a female attains her majority. She then is no longer subject to parental control. She has freedom of action and subject to the lawful restraints placed on all other citizens may engage in any profession she sees fit to follow. Being an adult, she can no longer be tried on a charge of juvenile delinquency; although, she might commit acts which would result in her prosecution under the criminal laws with a consequent more serious penalty than would have been entailed under the statutes pertaining to juveniles.

It is our conclusion that Tit. 10 § 112, O. S. 1941, in so far as it purports to give the county court continuing jurisdiction over females after they become 18 years of age was repealed by implication by the passage of the 1917 legislative act now known as Tit. 10 § 218, O. S. 1941, and that by reason thereof the superintendent of the State Industrial School for White Girls is without authority to restrain a female after she arrives at the age of 18 years.

It is therefore ordered that the writ of habeas corpus be issued and that the respondent, superintendent of the State Industrial School for White Girls, forthwith discharge the petitioner, Juanita Thelma Sweeden, from custody in said institution.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAEEFOOT, P. J.

text:
    CHESTER JENNINGS v. STATE.
    No. A-10705.
    April 16, 1947.
    (179 P. 2d 693.)
    Owen F. Eenegar, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAEEFOOT, P. J.

Defendant, Chester Jennings, was charged in the district court of Oklahoma county by indictment with the crime of robbery with firearms; was tried, convicted of robbery as an included offense, and was sentenced by the court to serve a term of five years in the State Penitentiary, and has appealed.

The brief of defendant filed in this case does not comply with rule 7 of the court, which requires the brief of plaintiff in error to contain:

“* * * a specification of errors relied upon, specifically and particularly setting out each error asserted and intended to be urged. * * *”

A compliance with this rule is of great assistance to the court in consideration of the case on appeal.

Defendant in his brief states :

“We would first call the attention of the court to the insufficiency of the evidence and most respectfully insist that there is a total failure of proof that would warrant a conviction of this plaintiff in error of the crime charged.”

Under this contention, it is urged that there is no proof of the use of firearms. Defendant was charged under Tit. 21 O. S. 1941, § 801, which is as follows:

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same.”

It has been held by this court that “robbery” and “conjoint robbery” are included offenses under this statute. Patterson v. State, 78 Okla. Cr. 244, 147 P. 2d 179; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609.

The court so instructed the jury, and further instructed them that the evidence did not show the use of firearms, and that defendant could not be convicted of robbery with firearms, but only of the included offense of robbery accomplished by means of force or fear. The jury properly convicted the defendant of this offense.

It is next contended that the evidence was insufficent for the reason that it showed that only larceny from the person, and not robbery had been committed. The argument to support this contention is really unique. The evidence revealed that defendant and his codefendant had seen the prosecuting witness at a night club in Oklahoma City, and he had displayed before them a large sum of money. They waited outside the night club, and followed the prosecuting witness when he left. When the prosecuting witness.parked his car on the country road, the defendant and his codefendant went up to where the car was parked and the codefendant ordered the prosecuting witness to come out of the automobile with his hands up. The prosecuting witness complied with this request, and as he got out of the car, said, “Fellow, I know you”; and at that time the codefendant hit him over the head with an iron bar, and knocked him unconscious, and they then took from his pocket a billfold with a large sum of money. The defendant and his codefendant later divided this money. It is contended by defendant by reason of the prosecuting witness being unconscious at the time the money was taken from his person, he could .not have been “in fear” as provided in the robbery statute, and that the crime committed was larceny from the person, and not robbery. The Assistant Attorney General, who prepared the brief for the state in this case, in commenting upon this contention very aptly states:

“In other words, if you want to rob a man, be sure you don’t say anything to him, but simply knock him cold, and then remove the money from his person. You will not thereby commit the crime of robbery.”

Defendant complains that he was convicted to a great extent by reason of the testimony of his codefendant, who testified for the state, and that he was an accomplice, and the court did not properly instruct the jury as to his testimony.

It may be stated that defendant at no time presented a requested instruction as to this testimony, and, further, that the state did not rely in whole upon the testimony of the accomplice, but there is an abundance of evidence in the record to convict the defendant. Barbe v. Territory, 19 Okla. 119, 91 P. 783; Cloud v. State, 41 Okla. Cr. 395, 273 P. 1012; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; McLaughlin v. State, 18 Okla. Cr. 627, 197 P. 717; Perry v. State, 74 Okla. Cr. 234, 125 P. 2d 219; Hufford v. State, 61 Okla. Cr. 141, 66 P. 2d 529; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763.

Finding no error in the record, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.