text:
    CLETUS JONES et al. v. STATE.
    No. A-7115.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1073.)

      E. W. Schenk, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

This is an appeal from the district court of Carter county, wherein the plaintiffs in error, hereinafter called defendants, 'were convicted of the crime of assault and battery and each sentenced to serve a term of 30 days’ imprisonment in the county jail and pay a fine of $25.

The evidence on the part of the state shows that the defendant Jones made an assault upon one Oscar Thorson on a public street of Healdton, knocking Thorson down and rendering him unconscious, and then proceeded to kick and stomp him with his feet with heavy shoes thereon, and that defendant Gravitt, who is the father-in-law of Jones, aided, encouraged, and abetted Jones in this assault.

The defendants contend that the information is insufficient to charge an offense over which the district court of Carter county had jurisdiction, because the information only charged a misdemeanor and not a felony. The charging part of the information reads as follows:

“That, Cletus Jones and Mack Gravitt on the day and year aforesaid, and in the county and state aforesaid, did unlawfully, wilfully, .wrongfully, intentionally and feloniously make an assault and battery in and upon one Oscar Thorson with his fists in such a manner as to render the said Oscar Thorson unconscious, and did then and there with his feet kick, and stomp the said Oscar Thorson in and upon the face, head, neck and body of the said Oscar Thorson with such force as was likely to produce the death of the said Oscar Thorson with the unlawful and felonious intention then and there upon the part of them, the said Oletus Jones and Mack Gravitt to kill the said Oscar Thorson.”

Defendants Avere prosecuted under section 1756, O. O. S. 1921, Avhieh reads as follows:

“Any person Avho intentionally and Avrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means Avhatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly Aveapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

. It is argued that the information fails to charge a felony, for the reason that the force alleged to have been used Avas only applied by the hands and feet, and that, under section 1756, supra, the force condemned therein is “a force outside of the natural force of hands and'feet.”

The question raised by counsel was before this court in the case of Gober v. State, 25 Okla. Cr. 145, 219 Pac. 173. At page 149 of 25 Okla. Cr., 219 Pac. 174, in the body of the opinion, this court said:

“It is immaterial under the statute whether or not a deadly or dangerous weapon is used provided, of course, that the force used is likely to produce death and the intent of the defendant at the time is to kill. It then becomes a question of fact for the jury to determine whether or not the force used is such as is likely to produce death, and Avhether or not the defendant intends to kill by the use of such force. We are of opinion, therefore, that the information sufficiently charges the crime of assault and battery with intent to kill by means other than a deadly weapon, but by such force as is likely to produce death, and that it was sufficient, therefore, to confer jurisdiction upon the district court to try this offense.”

The mWmation in the case at bar is, in substance, identical with the information in Gober v. State, supra, and was sufficient to charge the defendants with a felony.

The fact that the jury found the defendant guilty of assault and battery would not in any wise affect the sufficiency of the information to charge an offense within the jurisdiction of the district court.

The defendants next contend that the punishment is excessive. The assault appears to have been a brutal one, inflicted by the defendants upon the prosecuting witness because the prosecuting witness had caused the arrest of the defendant Jones for disorderly conduct in his house, and was otherwise entirely unprovoked by the prosecuting -witness. A fine of $25 and 30 days in the county jail is a very reasonable punishment for an assault of the kind made by the defendants on the prosecuting witness.

For the reasons stated, the case is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    JOHN W. STRICKLAND v. STATE.
    No. A-6918.
    Opinion Filed Jan. 25, 1930.
    Rehearing Denied Feb. 15, 1930.
    (284 Pac. 651.)

      Cargill & Whiteside, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of murder, and his punishment fixed at imprisonment in the state penitentiary for life.

The evidence of the state, in substance, is that the killing occurred in a rooming house operated by defendant at 108% West California street, Oklahoma City. Irene Summers, the deceased, had been an inmate of defendant’s rooming house prior to this time, but for several months immediately preceding the day of the killing she had been staying with her mother in another part of the city.

At about 5 o’clock in.the morning on the day of the killing, the defendant went to the home of deceased’s mother, got deceased, and took her to the rooming house. Deceased stayed there that day in the room occupied by defendant, and it was in this room that she was shot and killed at about 5:30 that evening. The record discloses that deceased and defendant had been drinking prior to the killing. Defendant admitted that he had taken a few drinks that day, and one of his witnesses testified that the deceased was drunk at the time of the killing. Callie Glenn, a witness for the state, testified that she was present in the room; that deceased was sitting up in the bed and that she saw the defendant point the gun at deceased and fire. The physical facts of the killing corroborate this witness. The defendant admits that the killing was done with a pistol which he had purchased that day and a short time previous to the killing, from a hardware store located on the floor below the rooming house; that he went into the room ¡where deceased was, with the pistol in his hand; and that the deceased grabbed the pistol out of his hand and committed suicide by shooting herself.

The transcript of the record presents a clear case of conflicting evidence. It was up to the jury to believe Callie Glenn supported by the physical facts in the case, or believe the defendant supported by the testimony of a Mrs. Brousseau. The jury has determined this issue against the contentions of the defendant. The jury had all these witnesses before it and had opportunity to- observe them as to their manner of testifying and to judge of their credibility and the weight to be given their evidence. ■ There being sufficient evidence in the record to form a basis for the verdict of the jury, the cause comes to this court to be considered only upon the errors of law which the defendant contends occurred at the trial of the case and' which prevented him from having that fair and impartial trial guaranteed him by the laws and constitution of this state.

The defendant first contends that the court erred in overruling his motion for new trial on the ground that the jury were prejudiced against him by having read a certain editorial in the Oklahoma City Times. Defendant complains this editorial had been read by some members of the jury after taking of evidence had commenced but before the final submission of the case. In support of this assignment of error the defendant called one of the jurors, Mr. O’Sullivan, who on direct examination testified as f olloiws:

“A. No; if you read that article, Mr. Wright, there isn’t anything in it about the case; it was about incompetent jurors and let you go through and say, when we were admonished not to read anything about the case and I, personally, had anything in the editorial and I wouldn’t ■ expect to see anything in the editorial and we got in the case before I found out what it was all about.
“Q. Were you laboring under any fear of intimidation because of having read that article, Mr. O’Sullivan? A. From what?
“Q. The reading of the article in the paper, did that create in your mind any fear of intimidation or threats? A. No, sir.
“Q. Did that reading of that article deter you in any way in the discharge of your duty as a juror? A. Not a bit.”

The defendant called no other jurors to testify upon this motion. The editorial complained of contains no comment on the case as affecting the merits of the case and the guilt or innocence of, the defendant, but is a discussion of the jury system and of the difficulty of procuring competent jurors to sit, not only in the case at bar, but in all other cases. The general rule is stated in 16 C. J. p. 1081.

“The mere fact that jurors read newspapers during the trial of a case is not of itself ground for disturbing the verdict if the newspapers contain no comment on the ease in hand.”
“And even when the jurors receive newspapers containing accounts of, or comments on, the case, the verdict will not be disturbed, if the papers contain nothing' calculated to mislead or improperly to affect their minds or to prejudice their verdict.” .

In the case of Allen v. State, 13 Okla. Cr. 395,. 164 Pac. 1002, 1004, L. R. A. 1917F, 210, this court said:

“Finally it is contended that other misconduct of the jury should reverse this judgment. This assignment of error refers to the fact that during recesses taken during the progress of the trial the jurors were permitted to have access to certain local newspapers concerning stater ments of other homicides committed in Oklahoma county while the trial of this case was in progress, and also during a recess some of the jury sa/w the sheriff come into the courthouse carrying, a hat and two butcher knives, and one of the jurors spoke to him and asked him if that was all he got, and he replied, No, I got one dead one and five live ones.’ It is asserted that this conduct is such as to greatly prejudice this defendant and deprive' him of a fair and impartial trial. While the conduct of the juror in yelling to the sheriff as he was passing through the courthouse is subject to criticism, and is such as the trial court should always rebuke should attention be called to it, nevertheless we cannot see wherein this defendant’s substantial rights were prejudiced thereby. Our statutes (sections 5899, 5900, and 5937, Revised Laws [1910]) provide that there shall be no communication with the jury after it has been impaneled and sworn to try the case by any person on any subject connected with the trial itself, and if such a communication is had it is ground for new trial, and the vérdict should be set aside. In this case it is shown conclusively that no person was permitted to communicate with the jury upon any subject connected with the trial, and it is also shown that the newspapers which the jurors were permitted to read contained no statement with reference to this particular trial; that such matters were torn or cut out of the papers before they 'were handed to the jurors. No statutory right of this defendant therefore was violated,, the jury did not discuss these outside matters in any way, and it does not appear that the defendant was probably injured by such alleged misconduct; but on the other hand the testimony of the persons called by the defendant in support of the motion for new trial, in our opinion, shows that no injury was occasioned this defendant by any of these matters set forth in the motion.”

. There being nothing in the editorial complained of that constituted a.comment on the facts in this case, and there being no showing that the jury or any individual member thereof was influenced to bring into the court any different verdict than the one that was returned, the reading of the editorial by the jurors could not have been prejudicial to the rights of the defendant.

The defendant next complains of improper examination of witnesses by the county attorney. The questions complained of .were similar to the following: “Do you remember about Irene Summers being killed?” There was no controversy but that the deceased was killed, either by herself or the defendant. Merely asking the witness if he had heard about the deceased being killed, without stating whether by the defendant or by her own hand, was not an assumption of any disputed fact in the case. The questions were merely preliminary, and the objection is without merit;

It is next contended that the trial court erred in refusing to permit John Long and Dr.. C. E. Clymer to testify as witnesses for the defendant that the Iwounds upon the deceased could have been self-inflicted. As to the testimony of Dr. Clymer, the record discloses that he gave the following testimony:

“Doctor, I want to ask you if it’s possible for an individual inflicting wounds upon their body, in committing suicide, to inflict more than one mortal wound.
“Mr. Wright: To which we object as being incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“A. Yes, sir.”

Dr. Harbison and Dr. Haskett were permitted to testify to the same effect. The defendant attempted to prove by the witness John Long as to just how a member of the police force of Oklahoma City had committed suicide. Such evidence was immaterial and would tend to prove nothing as to how the deceased, Irene Summers, met her death; the two events being entirely disconnected.

The trial court refused to let the witness Long testify on the subject that he did permit the doctors to express an opinion on because the witness Long was not qualified to express an opinion on the subject. This court does not hold that it was proper to permit the defendant to introduce the opinions of these doctors as to the probability of suicide of the deceased, but since the opinions were in favor of the defendant, he will not be heard to complain.

In the case of Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311, this court said:

“Exclusion of Evidence—Harmless Error. The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.” Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941.

The defendant next complains that the court erred in permitting the defendant to be impeached by proof of conviction of a misdemeanor in the police court of Oklahoma City, by keeping a disorderly house.

Section 1891, C. O. S. 1921, provides as follows:

“Any person who keeps any disorderly house, or any house of public resort by iwhich the peace, comfort or decency of the immediate neighborhood is habitually disturbed, is guilty of a misdemeanor.”

Section 1501, C. O. S. 1921, defines crime as follows:

“A crime or public offense is an act or omission forbidden by law, and to which is annexed upon conviction, either of the following punishments:
“First, Death.
“Second, Imprisonment.
“Third, Fine. * * * ”
Section 585, C. O. S. 1921, provides as follows:
“No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.”

The question presented is the right of the state to show that the defendant had been convicted of a crime under the terms of a city ordinance, where the same 'was an offense under the state law. This court has repeatedly held that where the defendant has been convicted of a crime that fact may be shown. Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162; Smith v. State, 34 Okla. Cr. 396, 246 Pac. 1104.

Under the sections of the statutes above quoted, it is only necessary to show that the defendant has been convicted of a crime. It would not be proper to introduce proof of petty offenses defined by city ordinance, such as running stop lines, overparking, and the like, which are not made crimes by state law, to discredit the witness. It is the taint of conviction for crimé Which discredits the witness, and not the tribunal in which the conviction was had. Keeping a disorderly house is a crime under the state law, and a conviction for such crime may be shown irrespective of what tribunal the same was had in, for the purpose of discrediting the witness.

It is next contended that the court erred in permitting the state on cross-examination of Mrs. Brousseáu, a witness for the defendant, and the proprietress of the building in which the defendant’s rooming house was located, to make inquiries concerning the fact that this witness and the- defendant were then jointly enjoined in the federal court from maintaining a liquor nuisance in said building.

The extent, manner, and course of the cross-examination of a witness is largely a matter of discretion for the trial court, and the exercise of that discretion, unless flagrantly abused, will not be reviewed on appeal. Yingling v. Redwine, 12 Okla. 64, 69 Pac. 810; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

The previous occupation, companions, and associates of a witness are proper subjects of inquiry for the purpose of affecting his credibility. Terry v. State, 7 Okla. Cr. 430, 122 Pac. 559; Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259.

It is competent on cross-examination to prove by a witness any fact which tends to sho)w bias, prejudice, friendship or enmity, or the relationship of the witness to one of the parties to the case. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132; Phillips v. State, 20 Okla. Cr. 415, 203 Pac. 902; Orr v. State, 21 Okla. Cr. 189, 205 Pac. 941; Hennessee v. State, 29 Okla. Cr. 72, 232 Pac. 856.

The fact that this witness had been enjoined together with the defendant from operating a liquor nuisance at 108% West California, the place where this homicide occurred, was a circumstance which the jury had a right to consider in determining the credit that would be given to her testimony. It tended to show her intimate relationship with the defendant in the conducting of an unlawful business at this place; it also tended to show her own business or occupation, and under the holding in the foregoing opinions of this court was proper.

The physical facts in this case clearly corroborated the witness Callie Glenn and unerringly point to defendant’s guilt. It was his gun, and he admits that he walked into the room with it immediately before the shooting. The deceased was a frail woman, and it seems preposterous to conclude that the deceased forcibly wrenched this pistol from defendant’s hand and then committed suicide and in so doing fired two shots into the wall above her head before hitting herself. The issue of whether this was a homicide or a suicide was fairly submitted to the jury under the instructions of the court. Under the evidence and the law as given them by the court, they found that the deceased came to her death from gunshot wounds inflicted by the defendant. There is ample evidence in the record to support the verdict of the jury.

For the reasons stated the cause is affirmed.

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


text:
    EUGENE WISE v. STATE.
    No. A-6970.
    Opinion Filed Jan. 17. 1930.
    Rehearing Denied Feb. 15, 1930.
    (284 Pac. 306.)
    W. M. Howenstein, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county on a charge of second degree rape, and Ms punishment fixed at imprisonment in the penitentiary for one year. This record discloses a condition of almost total depravity on the part of all parties concerned, including the prosecuting witness.

It appears from the evidence that the prosecuting witness had been married, with her mother’s consent, at the age of 12 years; that she was leading a life of debauchery and lewdness for mercenary purposes at the behest and solicitation of her husband and others, who acted as “pimps” for her; but, when she fell into the hands of this defendant, she was evidently in the company of one who was looking for the kind of a woman she was. Defendant took her to the home of one Clinkscales, a short distance north of Grandfield, and there slept in the same bed withi her two nights, as he says, without as much as laying a hand on her. The prosecuting witness testified that defendant had intercourse with her on Monday evening, and also on Tuesday evening.

It is first contended that the trial court erred in admitting incompetent and illegal evidence on the part of the state. In support of this assignment of error, counsel for defendant calls this court’s attention to the following record appearing in the case-made:

“Recross-examination by Mr. Davis:
“Q. What business was that you said you had been in down there? A. I (was in the truck business.
“Q. You had just got through serving a term in the county jail?
“Mr. Howenstein: I object to that as incompetent, irrelevant, and immaterial.
“The Court: Sustained.
“Mr. Davis: I thought it was competent to show a man had been convicted.
“The Court: I sustained the objection.
“Q. That is all.”

It is evident from the following excerpts that the trial court excluded, instead of admitted, the evidence complained of. Counsel contends that the error of the trial court was in admitting the alleged incompetent evidence. Assignments of error, not supported by the record, will not be considered. Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820; Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871.

It is next contended that the trial court erred in excluding and refusing legal evidence offered on the part of the defendant. This assignment of error relates to the attempt to get before the jury, as part of the cross-examination of the prosecuting witness, a seines of exhibits offered that it is claimed impeached her on the question of her age. These exhibits were claimed to be a duly authenticated copy of the marriage license and certificate, together with the consent of her mother, issued to the prosecuting witness and one Frank Ford. None of the instruments purport to be the act of the prosecuting witness. No evidence was introduced as a predicate for the admission of the instruments. These records could not be used to impeach the prosecuting witness, because none of them imported to be her act. They were equally not open to admission as substantive evidence of the mother of prosecuting witness on the question of her age. The records, properly identified, might have been competent to impeach the mother, had she been produced as a witness for the state and had testified, as the prosecutrix did, that her age was only 14 years; but they certainly were not competent for the purpose of impeaching anybody else. There is no statute which permits the admission of such a record as substantive evidence of age, such as are scholastic censuses and other records of public officers of this state, as held in Bradshaw v. State, 18 Okla. Cr. 619, 197 Pac. 715. Furthermore, the defendant could not have been prejudiced by the exclusion of these records, because it was admitted by the prosecutrix that at the time the marriage license was procured the mother gave the age of the prosecutrix as 16 years. Worley v. State, 42 Okla. Cr. 243, 275 Pac. 398.

Finally it is contended that the verdict of the jury is contrary to the weight of the evidence and is not supported by sufficient evidence. Under this assignment it is contended, first, that the state failed to prove venue. This court will take judicial notice of the fact that a place 8 or 10 miles north of Grandfield would be in Tillman county. Jentho v. State, 19 Okla. Cr. 434, 200 Pac. 251; Johnson v. State, 28 Okla. Cr. 254, 230 Pac. 527; Tarkington v. State, 41 Okla. Cr. 423, 273 Pac. 1015; This court has also held that sufficient venue may be established by facts and circumstances in the record, from which the court can conclude that the venue was in the county alleged. Groh v. State, 30 Okla. Cr. 396, 236 Pac. 435; Wyrich v. State, 37 Okla. Cr. 115, 255 Pac. 163.

Under this assignment it is contended, also, that the state failed to prove the act of sexual intercourse. On this question there is a conflict in the evidence between the prosecutrix and the defendant. On every other point they agree. These two witnesses were before the jury, they had a chance to observe their demeanor, their manner of testifying, and to see the probabilities of the stories of each. The jury evidently did not believe that the defendant slept in the same bed with prosecutrix for two nights and had no sexual intercourse with her. In human experience, such things probably do not occur. The uncorroborated evidence of the prosecutrix as to the act of sexual intercourse was sufficient to support a verdict of guilty on a charge of rape. Malone v. State, 40 Okla. Cr. 102, 267 Pac. 486; Fowler v. State, 42 Okla. Cr. 300, 275 Pac. 655; Lynch v. State, 42 Okla, Cr. 415, 276 Pac. 501.

It is also contended under this assignment that the evidence is insufficient, because the state failed to prove that the prosecutrix was under 16 years of age. This was the only issue on which there was any direct attempt to discredit the prosecuting witness. She testified she was 14 at the time the crime was committed, and in this she was corroborated by her grandfather. The testimony of two witnesses iwas read, who testified in a case against one Clinkscales, that the prosecuting witness had told them she was 17 years of age. This conflict in the evidence Avas for the jury. The jury had the prosecuting Avitness! before them, and counsel had her stand up before the jury for inspection, so they could judge for themselves about her age. This court will not substitute its judgment for that of the jury on a controverted question of fact. Summers v. State, 7 Okla. Cr. 10, 120 Pac. 1031; Burrows v. State, 43 Okla. Cr. 256, 277 Pac. 685; Whitenack v. State, 46 Okla. Cr......., 285 Pac. 990.

Defendant assigns other errors, but they are without merit. For the reasons stated, the cause is affirmed.

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


text:
    CRAIG WATERS v. STATE.
    No. A-7098.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 759.)

      F. H. Hurst, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county on a charge of robbery with firearms, and his punishment fixed by the court at twenty-five years in the state penitentiary.

The evidence of the state is that on the 8th day of January, 1928, a number of negroes and some white men were in a small house about a mile and a half east of Davidson in Tillman county, and that they had gathered there for the purpose of playing poker and shooting craps; that while the poker game was in progress, with $19 in the pot, the defendant and Allie Warren appeared and commanded those in the house to throw up their hands, firing a shot as they did so; that defendant and Warren took the $19 in the pot, and also took money from the person of others who were in the house, together with the cards and dice.

Defendant and Warren were laterl arrested at Lawton, and a deck of cards and some dice taken at the time of the robbery were found on their person. When arrested' they denied that they had been at Davidson, but in the trial of the case defendant admitted that he was present (luring the progress of the poker game, hut claimed that by means of stripper cards and crooked dice the money had been taken from him and that he merely forced the crowd to give him back his own money. There is sufficient evidence in the record to support the verdict of the jury, and the cause must be affirmed unless the errors of law complained of by the defendant have deprived him of his constitutional or statutory rights.

The defendant contends that the state failed to establish the venue. The information charged that the offense was committed in Tillman county, Okla. The proof shows that the offense was committed about one and one-half miles from the town of Davidson in Tillman county, but does not show that Tillman county is in the state of Oklahoma. This court takes judicial notice that Tillman county is in the state of Oklahoma. The proof of the state was sufficient to establish the venue in Tillman county, Okla.

The defendant next contends that the court erred in rendering judgment upon the' verdict of the jury, which reads as follows:

“We, the jury empaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendant,. Oraig Waters, guilty as charged, and leave the penalty to be fixed by the court.
“H. E'. Fisher, Foreman.”

When the jury returned its verdict, the . following record was made by Mr. Hurst, attorney for the defendant:

“Now comes the defendant and requests the court to request the jury to fix the penalty in this case. We ask the jury be discharged and the verdict not received.
“The Court: Overruled. •
“Mr. Hurst: Note our exceptions.”

The defendant did not request the court to instruct the jury to fix the penalty, but the court on its own motion instructed as follows:

“In the event you find the defendant guilty, then you should assess and declare in your verdict the penalty to be inflicted if you can agree upon the same. In the event you find the defendant guilty and are unable to agree upon the penalty to be inflicted then you may return your verdict of guilty without fixing the penalty and the court will then perform that duty.”

Section 2750, C. O. S. 1921, provides:

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

Section 2751, C. O. S. 1921, provides:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Section 2743, C. O. S. 1921, provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is £he intent of the jury.”

The defendant contends that although the court instructed the jury that they might fix the punishment, and since the jury not only failed to fix the punishment but failed to state in their verdict that they were unable to agree upon the punishment, such verdict is an informal one under section 2743, supra, and that by reason, of the failure of the jury to state in their verdict that they were unable to agree upon the punishment the court was without jurisdiction to render judgment on the same over the objections of the defendant.

Under section 2750, supra, the jury may assess the punishment on their own motion, but must assess and declare the punishment in their verdict when timely request has been made by the defendant, except as provided in section 2751, supra. When requested by the defendant the court must instruct the jury to assess the punishment in their verdict. Under section 2751, supra, where the jury find a verdict of guilty and fail to agree on the punishment or do not declare such punishment by their verdict, then the court must assess and declare the punishment and render judgment accordingly.

In the case at bar the court properly instructed the jury as to their duty in fixing the punishment. The jury did not fix the punishment and did not state in the verdict that they 'were unable to agree on the punishment, but they also did not. declare such punishment by their verdict as they had a right to do under section 2751, supra.

In the case of Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341, 342, in paragraph 5 of the syllabus, this court said:

“It is the duty of a trial court, ¡when requested so to do' by counsel for defendant, to instruct the jury to fix the punishment and define to them the correct penalty prescribed by law for the offense charged. In the absence of any such request, however, the court is authorized to pronounce judgment on the general verdict of guilty.”

In the body of the opinion, at page 75 of 14 Okla. Cr. 167 Pac. 344, this court said:

“These statutes have been construed by this court in numerous opinions, among which are Chandler v. State, 3 Okla. Cr. 263, 105 Pac. 375, 107 Pac. 735; Blair v. State, 4 Okla. Cr. 366, 111 Pac. 1003. The identical question, however, has not been before the court heretofore. While we think it is a better practice that the court in his instruction to the jury tell them what the punishment provided, by law is for the crime on trial, yet it is not necessarily fatal to the judgment for the court to fail to do so when no request is made therefor. In the instant case the court properly pronounced the judgment and sentence, and after a careful review of all the facts and circumstances disclosed by the record we feel that the judgment, although the maximum, is no more than' should have been imposed.” Bland v. State, 18 Okla. Cr. 514, 196 Pac. 732; Felice v. State, 18 Okla. Cr. 313, 194 Pac. 251; Whitfield v. State, 37 Okla Cr. 37, 256 Pac. 68.

The court having properly instructed the jury upon fixing the punishment, and the jury having failed to declare the punishment in the verdict, it was within the discretion of the court to receive such verdict, and having received the verdict, the court was authorized to enter judgment and fix the punishment thereon.

The defendant next contends that the punishment fixed by the court is excessive. The jury in the case of State v. Allie Warren, who was an accomplice of the defendant in the commission of the offense and who was jointly charged with defendant, fixed Warren’s punishment at five years in the penitentiary. It appears from the record that Warren was the man who used the gun and fired the shot at the time of the robbery. The court is of the opinion that the punishment is excessive and the ends of justice will be met by reducing the said punishment from twenty-five years in the penitentiary to five years in the penitentiary.

The judgment is therefore modified, and the punishment fixed at five years in the penitentiary, and as. modified the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    FREDDIE LE BARRE v. STATE.
    No. A-7114.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 733.)
    Madden & Hubbell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county on a charge of operating a motor vehicle on the public highway while under the influence of intoxicating liquor and his punishment fixed at one year’s confinement in the penitentiary at Granite, Okla.

The evidence of the state was that the defendant drove a Ford automobile to the store and filling station of one Dilbeck, on a public road in Cotton county, on the 16th day of October, 1927; that the defendant was driving about twenty-five miles an hour and swerved his car, barely missing the Kinniard ear; that the little girl of Kinniard waá standing on the running board, and her mother jerked her in the car just in time to prevent her being hit by defendant’s car; that the defendant turned in and came to a sudden stop forty or fifty feet past Kinniard’s car. All the witnesses for the state testified that they smelled defendant’s breath; that he had been drinking intoxicating liquor and that he was under the influence of intoxicating liquor; that defendant was violent and abusive; and that it required at least two men to hold him on the ground for almost an hour until the sheriff came. The sheriff testified that he smelled intoxicating liquor on the defendant’s breath when he arrived and took him to jail. Defendant admits that he drank a bottle of home-brew about an hour before the trouble, but denies that he was under the influence of intoxicating liquor, and a number of witnesses testified for him and said that he did not appear to be intoxicated.

The defendant first contends that the evidence is insufficient to support the verdict of the jury. The question of whether the defendant was intoxicated to such an extent as to impair his judgment and ability to drive the car was one of fact for the jury, and there is ample evidence in the record to support the verdict of guilty. The verdict of the jury will not be set aside for insufficiency of the evidence unless there was. no competent evidence or it affirmatively appears that the jury was influenced by improper motives. Patterson v. State, 44 Okla. Cr. 64, 279 Pac. 356.

The defendant next. complains that the county attorney was guilty of misconduct in his argument. While the county attorney was making the closing argument to the jury, the following proceedings were had:

“By Mr. Bridges: The defendant objects to the statement of counsel for the state in his argument to the jury in which he said, ‘Fred LeBarre, you have personally lied! in this case and perjured yourself,’ and move the court not to permit the county attorney to make such statements.
“By Mr. Morris: The county attorney remembers ' distinctly what he said and wishes to make a statement in the record that the statement almost word for word was in substance, ‘Fred LeBarre, you know you have committed perjury in this case and the record and the evidence so shows it.’
“By the Court: Gentlemen of the Jury: I am going to admonish the county attorney that the use of such strong language is not looked upon with favor by the courts, and the county attorney can argue as to1 his veracity or truthfulness without using the word ‘liar.’
“By Mr. Morris: I don’t believe I used the word ‘liar’ at all. I said ‘perjury’ if the court please.
“By the Court: You .will desist from using the word ‘lied.’
“By Mr. Morris: If I used it I certainly will desist.
“By the Court: Argue as to conclusions which you think the evidence warrants without applying epithets.”

The argument of the county attorney was not taken down in full and is not embodied in the record. The court makes no finding as to what the county attorney said, and the county attorney and counsel for defendant differ as to what was said. This record presents no question of misconduct for a consideration of this court. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Schaff v. Coyle, 121 Okla. 228, 249 Pac. 947; Whitenack v. State, 46 Okla. Cr. ......, 285 Pac. 990.

The defendant next complains that the court erred in refusing to submit to the jury defendant’s requested instruction No. 1. The requested instruction was not a correct statement of the law on the meaning of the words “under the influence of intoxicating liquor.” The court on its own motion gave instruction No. 4, which reads as follows:

“Before you find the defendant guilty of driving the automobile in question while under the influence of intoxicating liquors, as charged in the information, you must be satisfied beyond a reasonable doubt, not only that he drank intoxicating liquor, but that he was affected by it to such an extent as to impair his ability to operate the automobile with that degree of prudence and caution which would be exercised by him while in full possession of his faculties.”

In the case of Welch v. State, 43 Okla. Cr. 47, 277 Pac. 280, this court said:

“The term ‘under the influence of intoxicating liquor,’ as used in section 3, chap. 16, Session Laws 1923, is a term of common use, and requires no definition or explanation to be understood by persons of ordinary intelligence, and it is not error for a court in defining the offense of driving an automobile while under the influence of intoxicating liquor to fail to define or explain such term.”

Instruction No. 4 was more favorable to the defendant than the rule laid down in Welch v. State, supra, required.

There being sufficient evidence in the record to support the verdict of the jury, and the errors of law not being such as to require a reversal of the case, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


author: DAVENPORT, J.

text:
    C. L. BRUCE v. STATE.
    No. A-7060.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 809.)

      H. C. Hargis, F. O. Yarbrough, and L. A. Justus, Jr., for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Kay county, Okla, on a charge of driving an automobile on the public highway while intoxicated, and sentenced to one year in the state penitentiary. Record was perfected, and case appealed to this court by case-made, with petition in error attached.

The testimony in this case tends to show that E. J. Faylor was driving from Webb City, Okla., to Ponca City, to visit his wife who was in a hospital; defendant was driving in an opposite direction, and witness Faylor says he was driving at a rate of twenty or twenty-five miles an hour, and looked up and saw a Chrysler car coming; the car was right at him. “I had plenty of time to drive out into the cornfield but I could not get over the bank; I drove to the extreme side of the road and threw on the brakes and stopped and braced myself in the car; the Chrysler hit me head on just as straight as he could hit me; I did not know the defendant at the time but they told me it was C. L. Bruce; the defendant on trial is the one who was driving the car that struck my car.” The testimony further shows, on the part of the state, that the defendant, Bruce, was under the influence of intoxicating liquor at the time of this collision, that he had a half-gallon jar of whisky in his car, and that he was driving his car at a high rate of speed on the wrong side of the road.

The defendant, testifying in his own behalf, denied he was drinking, but admitted that he had a half-gallon jar of whisky in his car; that he came over from Pawhuska the night before, and stayed all night at a rooming house in Ponca City; that he had a lady with him who stayed with the proprietress of the rooming house that night, the defendant occupying a room by himself. The defendant further testified that at the time of the collision his car was probably on the wrong side of the road because the witness Faylor, who testified for the state, and who was coming in the opposite direction, was on the wrong side of the road, and, in order to avoid a collision with Faylor, he drove to the left side of the road. The defendant stated that, when he turned to the left side of the road, Faylor turned to the left side.

Several other witnesses testify as to the appearance of the defendant, and as to defendant being under the influence of liquor at the time of the collision. This is in substance the testimony.

The defendant has assigned nine separate errors alleged to have been committed by the trial court. We will take up the errors as discussed by the defendant. The fourth and fifth errors assigned will be considered together, as they relate to the question of the information and the sufficiency of the evidence to support the judgment. The charging part of the information in this case is as follows:

“That on or about the 27th day of August, A. D. 1927, in said county of Kay, and state of Oklahoma, one C. L. Bruce, then and there being, did then and there unlawfully, wrongfully, knowingly and feloniously drive, operate and propel an automobile motor vehicle, upon and along the public highway leading west out of Kaw City, Kay county, Oklahoma, to Ponca City, Kay county, Oklahoma, more definitely described; about three miles west of Kaw City, on said highway, while he the said C. L. Bruce was then and there under the influence of intoxicating liquor.”

It is first urged by the defendant that the court erred in overruling his demurrer to the information, and the defendant has argued at length that the allegations in the information are insufficient to advise a person of common understanding to properly prepare for his defense, or of understanding the nature or character of the charge against him, as he was entitled to have the facts stated, and the defendant insists there is not sufficient information conveyed to him by the following language: “Under the influence of intoxicating liquor.”

This identical question was before this court in the case of Welch v. State, 43 Okla. Cr. 47, 277 Pac. 280. In the second paragraph of the syllabus this court said:

“The term ‘under the influence of intoxicating liquor,’ as used in section 3, chap. 16, Session Laws 1923, is a term of common use, and requires no definition or explanation to be understood by persons of ordinary intelligence, and it is not error for a court in defining the offense of driving an automobile while under the influence of intoxicating liquor to fail to define or explain such term.”

We think the information sufficient to apprise the defendant that the charge against him was driving an automobile while under the influence of intoxicating liquor. It is not necessary for the court to define or explain what is meant by intoxicating liquor. The term “intoxicating liquor” is a general term, and any one of ordinary intelligence should understand what it means; therefore the court did not err in overruling the demurrer to the information.

The defendant next contends that the court erred in refusing to give requested instructions Nos. 1 and 2. An examination of the record, and a careful reading of the instructions requested, show they did not correctly state the la;w applicable to the facts in this case, and the action of the court in refusing to give the instructions requested' was not prejudicial to the rights of the defendant.

It is further urged by the defendant that the judgment should be reversed on the grounds of the insufficiency of the evidence. It is true the evidence in this case is conflicting; witnesses for the state testifying, in substance, that the defendant was under the influence of intoxicating liquor on the afternoon when he collided with the car driven by one of the state’s witnesses. The defendant and the woman that was with him testified that the defendant was not under the influence of intoxicating liquor, but the defendant admits he had in his car a quantity of whisky, and undertakes to justify his actions by the fact that the state’s ¡witness E. J. Paylor was driving on the wrong side of the road, and he sought to avoid a collision with him by turning to the left side of the road, and defendant says he was taking the whisky he had ‘in his car to Pawhuska for the benefit of several of his friends. The record shows the defendant admitted he had been fined several times for being intoxicated in public places. There is considerable conflict in the evidence on the question of whether or not the defendant was under the influence of intoxicating liquor at the time of the collision.

The court in its instructions correctly advised the jury as to the law applicable to the facts in the case. It was within the province of the jury to determine the weight of the evidence and the credibility of the witnesses testifying and to harmonize the testimony, if possible, and to say by its verdict whether or not the. defendant was guilty. This court will not substitute its judgment for that of the jury on the question of the weight of the evidence, where there is any competent evidence to go to the jury, even though the evidence is conflicting.

There is sufficient evidence to- sustain the verdict. There are other errors assigned, but, after a careful consideration of the record, we¡ fail to find any error sufficiently prejudicial to the rights of the defendant to justify a reversal. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law. Finding no errors in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    GUY RHODES v. STATE.
    No. A-7121.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 812.)

      R. Place Montgomery, E. V. Rakestraw, and W. A. Phelps, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa on a charge of transporting a pint of intoxicating liquor and his punishment fixed at a fine of $50 and confinement in the county jail for a period of thirty days.

The evidence of the state was that the sheriff and two of his deputies were in the mouth of an alley in the town of Hobart; that the defendant and one Bodard were passing along the sidewalk at the mouth of the alley; that when they saw the officers, Bodard ran to the middle of the street and called to the defendant, “Throw it, Shorty”; and that the defendant threw a pint bottle of whisky over the fence near where they were walking. The sheriff climbed over the fence, picked up the whisky, arrested defendant and Bodard, searched them, and took them to jail. No whisky was found on defendant’s person. At the trial the sheriff identified the bottle of whisky as the one thrown by the defendant. The defendant was found guilty of transporting intoxicating liquor.

The defendant first contends that the evidence was inadmissible because obtained by an illegal search and seizure, but this issue is not in the case. The defendant was not being pursued by the officers and no attempt was being made by them to- arrest him. Since he threw the bottle of whisky from his person and abandoned it, the officers had a legal right to take possession of it, and-the same was not obtained by any search of the person of the defendant.

In the case of McAdams v. State, 30 Okla. Cr. 208, 235 Pac. 241, this court said:

“Where peace officers, without a warrant, on suspicion merely, illegally attempted to arrest a person suspected of the commission of a misdemeanor (transporting whisky), and as a sequence to such attempted arrest the offense is actually committed in the presence of and to the certain knowledge of the officers, the offender, under the circumstances set out in the text, may be legally arrested without warrant for the offense so committed in the officers’ presence.
“(a) As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.”

In the case of Martin v. State, 43 Okla. Cr. 273, 277 Pac. 950, this court said:

“A peace officer, without a warrant, may arrest a person for any violation of the prohibitory liquor law committed in his presence, and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

The evidence having been legally obtained and being sufficient to support the verdict of the jury, the cause is affirmed.

. DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    NEWT BANKS v. STATE.
    No. A-7123.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 789.)
    George W. Martin, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the crime of having in his possession intoxicating liquor, to wit, two half pints of whisky, with the unlawful intent on the part of him, the said Newt Banks, to barter, sell, give away, or otherwise furnish the same unlawfully; was convicted and sentenced to pay a fine of $50 and be imprisoned in the county jail for thirty days. From the sentence the defendant has appealed to this court.

The testimony in this case is brief. Jack Ball testified on behalf of the state in substance: That he had a search warrant for defendant’s place, and that he found two half pints of whisky in the defendant’s home. They also found a jug and. some bottles, and some corks in a box. He did not remember just where the empty bottles were, they were about the house somewhere. That John Morrow made application for the search warrant. That John Morrow, Jim Williams, and Lee Watson were with him on the search.

John Morrow, a witness on behalf of the state, testified he was with Mr. Ball when he went to defendant’s home, and stated Exhibit 1 and 2, which were handed to him, to be whisky. The state then went into the reputation of the defendant’s home as being a place where liquor was being kept and sold, and the witness Morrow stated it was bad. On cross-examination by the defendant the witness Morrow was asked the following question:

“Q. Did you know I had any intention of selling. these two half pints of whisky? A. No, I didn’t.”

Jim Williams also testified for the state that he was with the officers When they found the two half pints of whisky; he, too, was asked if he was acquainted with the home of the defendant as being a place where intoxicating liquor was being kept and sold, and answered that he was acquainted with the defendant, but “I cannot say as to that part of it,” and, When asked about the reputation of the place, stated it was fairly good.

Jack Ball was recalled and asked the direct question as to whether or not that was the whisky in those bottles he found at Mr. Banks’ home on the night of the search, and answered, “It is.” On being cross-examined by the defendant as to how he knew it was whisky, he stated, “That is the box and bottles, and the Whisky we got out at your house and set out in the jail.” This is in substance the testimony on behalf of the state.

Pim Langden testified on behalf of the defendant, and stated he had known the defendant something like twenty years, and stated it looked like if the defendant had been selling whisky he would have caught on to it somewhere. Witness stated he never knew of the defendant selling any Avhisky. T. N. Allen also testified on behalf of the defendant that he never knew of the defendant selling whisky; that he had known him twelve or fifteen years. Jack Ball was recalled, and was asked by the defendant:

“Mr. Ball, did you ever know I had any pretensions of selling the tAvo half pints of whisky? A. No, I don’t know you did.”

Mr. Morrow Avas also asked by the defendant:

“Q. Do you know that I ever had any pretensions of selling this tAvo half pints of Avhisky? A. No, sir.”

After the defendant was convicted, he secured the services of Mr. Martin, an attorney, and Mr. Martin filed a motion for a new trial, in which he! assigned five grounds in his motion:

“1. The judgment of the court and verdict of the jury is contrary to law.
“2. That the judgment of the court and verdict of the jury is contrary to the evidence.
“3. That the said verdict of the jury and judgment of the court is not supported by the evidence.
“4. Errors of law occurring in the trial which was objected to by the defendant and excepted to.
“5. The court erred in not directing the jury to return a verdict of not guilty for want of evidence showing the defendant had the two pints of whisky alleged to have been found in his residence, with the intent to sell, barter, give away or otherwise furnish to other persons.”

The record further discloses there is not one word in the testimony showing any intention on the part of the defendant to sell, barter, give away, or otherwise furnish to others any part of the two half pints of whisky alleged to have been found in defendant’s home. No one testifies to having seen any one around defendant’s place or having seen any one going back and forth to his place, or that it was a place where people resorted for the purpose of drinking intoxicating liquors. The quantity of whisky found in the possession of the defendant is not a sufficient quantity to be prima facie evidence under our statute of an intent to sell, barter, give away, or otherwise furnish to others whisky. To warrant the sustaining of a conviction, there must be evidence sufficient to prove that an offense has been committed, and also to connect the defendant with its commission. It is a well-established doctrine that to constitute what the law calls an offense there must be a concurrence of both evil act and an evil intent. After a careful consideration of all the evidence in this case, we fail to find any competent testimony tending to show an intent on the part of the defendant to violate the provisions of the prohibitory liquor laws by bartering, selling, giving away, or otherwise furnishing the same unlawfully to others. The specific intent in this case being the gist of the offense, it must be proven as charged. Frazier v. State, 34 Okla. Cr. 375, 246 Pac. 652.

The quantity of whisky in defendant’s possession was less than that required by the statute to make it prima facie evidence of an intent to violate the prohibitory liquor laws; it follows that the court erred in denying the defendant a new trial.

The judgment is reversed.

EDWARDS, P. J., not participating. CHAPPELL, J., concurs.


author: PER CURIAM.

text:
    DEWEY SMITH et al. v. STATE.
    No. A-7072.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1118.)
    W. H. Robinson, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Carter county on a charge of conveying and transporting one gallon of corn whisky, and their punishment fixed at a fine of $50 and confinement in the county jail for 30 days for each of them.

The appeal in this case was filed in this court on the 19th day óf June, 1928. No briefs have been filed on behalf of plaintiffs in error.

Upon a careful examination of the record, we find no errors depriving the appellants of any substantial rights. The evidence being sufficient to support the. verdict, the cause is affirmed.


text:
    Ex parte C. M. CUNNINGHAM.
    No. A-7734.
    Opinion Filed Feb. 17, 1930.
    (287 Pac. 1114.)
    Carter & Carter and Carland Smith, for petitioner.

      J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. M. Gordon, Co. Atty., for respondent.
   DAVENPORT, J.

In this proceeding, the petitioner, C. M. Cunningham, filed in this court on February 15, 1930, his duly verified petition alleging that he is unlawfully imprisoned in the county jail of Okmulgee county, Okla., by James Stromont, sheriff of Okmulgee county; that he is held by the said sheriff under a commitment issued by George C. Gibson, justice of the peace within and for Okmulgee county. Petitioner avers that he is not guilty of the crime of rape, and that proof of the guilt of the crime is not evident, nor the presumption great; that prior to the filing of his petition in this court he filed his petition in the district court of Okmulgee county, and the same was heard before Judge Thomas H. Harris, one of the district judges for the said county, and his application denied. Attached to said, petition is a transcript of the testimony taken at the preliminary hearing before the examining magistrate.

After a careful examination of the transcript of the evidence filed, and attached to the petitioner’s petition, it is adjudged that the petitioner is entitled to be admitted to bail, and it is ordered that the said petitioner be admitted to bail in the sum of $15,000; said bond to be conditioned as provided by law, and to be approved by the court clerk of Okmulgee county.

CHAPPELL, J., concurs. EDWAtRDS, P. J., absent, not participating.


text:
    TOM GUEST v. STATE.
    No. A-6924.
    Opinion Filed Feb. 20, 1930.
    (287 Pac. 818.)
    Prentiss E. Rowe and D. L. Clement, for plaintiff in error.
    J. Berry Bang, Atty. Gen., and J. H. Lawson, Asst Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with R. M. Foster, alias Johnson, with the crime of murder, was separately tried, convicted of murder, and. his punishment fixed at death. Motion for new trial was filed, considered, and overruled, and the case appealed to this court by petition in error, with case-made attached.

The testimony on behalf of the state tends to show that on the 2d day of September, 1927, the defendant E. M. Foster and two men known as Whitey and Shorty, or Blackie, left Earlsboro for the purpose of robbing a bank at Meeker, Okla.; that when they got to Meeker some officers were there and they abandoned their intention and went back to Shawnee, and on to the toiwn of Asher, in Pottawatomie county, where they robbed a bank; as the defendant was leaving the bank Bailey Browder shot at the car in which R. M. Foster, alias Johnson, Whitie, and Shorty, or Blackie, were leaving the scene of the robbery; that the defendant Tom Guest came out of the bank and approached Bailey Browder, and fired a shot into his body, from the effect of which Browder died. Several witnesses testify as to the identity of Guest as being the man who shot Bailey Browder.

At the close of the testimony the defendant demurred to the evidence on the part of the state for the reason that the same was insufficient, and at the same time renewed defendant’s objection to the testimony as to the bank being robbed, and asked that the same be stricken on the ground that it was incompetent, irrelevant, and immaterial, and the jury be admonished not to consider it. The demurrer was treated by the court as a motion for a directed verdict, was overruled, and the defendant duly excepted. The defendant then demurred to that portion of the evidence pertaining to the bank robbery, and asked that the jury be admonished not to consider the same, which demurrer was overruled, and defendant duly excepted.

Twenty-one errors have been assigned by the defendant. After an examination and reading of the record and testimony contained therein, it is deemed necessary to consider the first assignment, which is that the said court erred in overruling the motion of plaintiff in error for a new trial, as the assignment covers, in substance, the questions raised by the defendant.

It is first urged that the defendant was transferred from the county jail of Pottawatomie county to the state penitentiary for safe-keeping, and there kept until November 23, 1927, when he was returned to the county jail at Tecumseh, Pottawatomie county, and his case assigned for trial on December 5, 1927, thereby giving him only twelve days to prepare for trial. The record discloses that one of the attorneys for the defendant had been employed since the preliminary trial.

It is contended by the defendant that the court erred in overruling the motion of the defendant for a continuance on the ground of absence of witness Charles Anderson and James Moore, who it is alleged by the defendant were material for his defense. The motion filed by the defendant for continuance on the ground of the absent witnesses stated that he was unable to learn the whereabouts of these two witnesses; that if they were present he could show by them he was not in Asher at the time of the robbery, but was at another and different place. A motion for continuance is addressed to the sound discretion of the trial court, and unless an abuse of discretion is shown, the judgment will not be reversed on appeal. Herndon v. State, 35 Okla. Cr. 371, 250 Pac. 942; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552.

There is nothing in the motion of the defendant for a continuance to show the whereabouts of the absent witnesses, or that they could he secured to attend trial at any future date.

“It is not error to deny an application for a continuance where it is made to appear that the whereabouts of the witnesses are unknown and there is no likelihood of procuring their attendance at a later term of court.” Yancey et al. v. State, 41 Okla. Cr. 197, 271 Pac. 170.

“It is the duty of the defendant who applies for a continuance to exhaust all of his legal remedies to obtain the presence of his witnesses, and this should affirmatively appear in the application for continuance, otherwise the application Avill be bad on its face, and it is not an abuse of discretion for the court to overrule the motion for continuance.” Hamit v. State, 42 Okla. Cr. 168, 275 Pac. 361.

In this case there is no diligence shown on behalf of the defendant to try to procure the attendance of the witnesses. If the defendant was with Anderson and Moore, the absent witnesses, on the date of the robbery, he knew it, and should have imparted this information to his attorneys before, without waiting until the case was called for trial. Under the showing made for a continuance the court did not abuse its discretion in overruling the defendant’s motion for continuance.

It is next contended by the defendant that the verdict of the jury is the result of passion and prejudice. The record discloses a peculiar condition of circumstances. It is undisputed that the defendant in this case Avas one of the parties who entered the Bank of Asher and robbed its officers of a sum. of money. The record further shows that as this defendant on trial left the bank he came up to Avhere Bailey Browder Avas, and without any provocation whatever he fired a shot into the body of Browder that took his life. Under the testimony in this case Ave do not believe that the verdict reached by the jury was the result of passion or prejudice. The defendant fired the shot at the deceased which took his life without any justification and without any authority whatever. The deceased was shot down in cold blood while attempting to stop the men who had taken part in the robbery of the bank as they drove away in their car.

The defendant contends that he did not have a fair and impartial trial, and that his rights were denied, and the verdict was the result of bias and prejudice, and that he was rushed into trial in violation of his rights. There is nothing in the record to show that the defendant was rushed into trial, and was for that reason deprived of his constitutional right of a fair and impartial trial. The only witnesses named by the defendant were the two witnesses mentioned in his motion for continuance, whose whereabouts were unknown. The defendant did not offer any testimony or make any showing that there were other witnesses whose testimony was material to his defense. There is no merit in this contention, for the reason that there is nothing in the record to show that the defendant, or his attorneys, at any time made an effort to secure the attendance of any witnesses for the defendant, or that they had askecj that any process issue for witnesses at any time, clearly showing that the defendant was not rushed into trial and deprived of any of his constitutional rights.

The defendant complains of the action of the court in permitting the witness R. M. Foster, who was a codefendant with him, being used against him. The name of R. M. Foster appeared as one of the witnesses; therefore the defendant could not have been taken by surprise, and must have known from the time the list of witnesses were served on him, up to the time the trial began, that Foster was to be a witness against him. There is no merit in this contention.

There are other errors assigned by. the defendant, but from an examination and study of the record they are without merit. This court realizes that the death penalty is a severe penalty for the commission of crime, but from the record in this case the murder was a willful and felonious one^ committed by the defendant while in the act of committing another felony. The defendant does not complain of the instructions of the court, and, after a careful study of the same, we hold they correctly stated the law as applied to the facts in this case. The defendant was accorded a fair and impartial trial. The jury were the sole and exclusive judges of the evidence and the credibility of the witnesses. The testimony is sufficient to sustain the judgment. Under the evidence in this case this court does not feel like it would be justified in modifying the judgment and sentence of the trial court. The judgment appealed from is therefore affirmed.

It is further ordered by the court that the 'warden of the state penitentiary proceed to carry into execution the judgment of the district court of Pottawatomie county in this case, and the second day of May, 1930, is fixed as the date for executing the sentence as pronounced.

CHAPPELL, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    STATE v. J. R. JOHNSEY.
    No. A-7606.
    Opinion Filed Feb. 20, 1930.
    (287 Pac. 729.)

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
    Andrews & Aston, for defendant in error.
   CHAPPELL, J.

This is an appeal upon the part of the state from the district court of Pittsburg county, Okla., in which the court sustained a demurrer to the information filed against the defendant herein charging him with escape from the state penitentiary.

The statute under which this information was drawn is section 8361, C. O. S. 1921, and reads as follows:

“Any person committed to a state prison who shall escape from or break said state prison with intent to escape therefrom, or who shall attempt by force or violence, or in any other manner, to escape from said prison, whether such escape be effected or. not, shall upon conviction thereof be punished by imprisonment in said prison for a term not exceeding double the term for which he was so sentenced, to commence from and after the expiration of his former sentence.”

The defendant filed the following demurrer to the information:

“1. That said information does not charge an offense under the laws of this state;
“2. That the offense charged in said information under section 8361, Comp. Stats., is contrary to law;
“3. That the act under which this information is based is unconstitutional and contrary to the 14th Amendment of the Constitution of the United States of America.”

The only question necessary to pass upon in this case is the constitutionality of section 8361, supra, which question is raised by the third subdivision of defendant’s demurrer. Does this statute give equal protection to persons charged with violations thereof, or is it unreasonable or class legislation? It will be observed that the punishment to be inflicted under this statute depends entirely on the sentence the convict is serving at the time of the escape. The offense is not divided into grades, unless it can be said that the grade of the crime is fixed by the sentence from which the convict is escaping. It may be stated as a general proposition of law that every person is entitled to the equal protection of the law, and that equal protection of the law means that equal protection and security should he given to all under like circumstances in his life, his liberty, and his property, and in the pursuit of happiness, and in the exemption from any greater burden and charge than are equally imposed upon all others under like circumstances. Under this statute, there would be as many different grades of crime as there are prisoners undergoing different sentences. To say that the long-term convict commits a greater offense than the short-term convict is to base the punishment for such escape, not upon the act of escaping from a state prison, but upon the act of escaping from a punishment fixed by a court in the judgment of conviction. The statute in defining the offense, however, makes the escape from the state prison the offense, and not the escape from the punishment' of the judgment fixed by the court upon trial. This classification is not natural, but arbitrary. To justify a classification of grades of crime, there must appear some good and valid reason why the classification should be made as made.

In the case of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 439, 46 L. Ed. 679, that court said:

“The difficulty is not met by saying that, generally speaking, the state when enacting laws may, in its discretion, make a classification of persons, firms, corporations, and associations, in order to subserve public objects. For this court has held that classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the 14th Amendment forbids thia * * * No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to securé that equality of rights which is the foundation of free government. * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the 14th Amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground,—some difference which bears a just and proper relation to the attempted classification,—and is not a mere arbitrary selection’.” Cooley on Const. Lim. pp. 556-575; Wagner v. Milwaukee County, 112 Wis. 601, 88 N. W. 577; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800; Sutton v. State, 96 Tenn. 696, 36 S. W. 697, 33 L. R. A. 589; Murray v. Board of Com’rs of Ramsey County, 81 Minn. 359, 84 N. W. 103, 51 L. R. A. 828,. 83 Am. St. Rep. page 379.

The very theory of punishment to be imposed for violations of the law is that such punishment should be proportioned to the gravity of the offense. While the Legislature in prescribing and fixing punishment for crime has very great latitude in classifying the same, still such classification should be natural and not arbitrary and should be made Avith reference to the heinousness or gravity of the act or acts made a crime, and not with reference to matters disconnected with the crime. The authorities are practically unanimous upon the1 question that the classification must be made with reference to the heinous-ness or gravity of the act or acts made a crime, and not with reference to matters disconnected with the crime. State v. Lewin, 53 Kan. 679, 37 Pac. 168; Ex parte Mallon, 16 Idaho, 737, 102 Pac. 374, 22 L. R. A. (N. S.) 1123; Hurtado v. Calif., 110 U. S. 516-534, 4 S. Ct. 292, 28 L. Ed. 232; 8 Cyc. 1058, 1059; Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 27 L. Ed. 924.

An examination of this statute leads to the conclusion that the classification is arbitrary, and that the punishment is not fixed according to the heinousness or gravity of the act, but is left to be fixed by matters occurring independent of the crime.

Section 8361, supra, is unconstitutional for the reason that it violates that part of the Fourteenth Amendment to the Constitution of the United States of America which prohibits the state from denying to any person within its jurisdiction the equal protection of the laws. Bowman v. Lewis, 101 U. S. 22, 25 L. Ed. 989; In re Kemmler, 136 U. S. 436, 10 S. Ct. 930, 34 L. Ed. 524.

The act under which defendant is being prosecuted being void because in violation of -the Constitution, the defendant was entitled to be discharged. The action of the district court of Pittsburg county in sustaining the demurrer tO' the information is affirmed, and the defendant ordered discharged.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, no£ participating.


text:
    L. L. CALLOWAY v. STATE.
    No. A-7122.
    Opinion Filed Feb. 20, 1930.
    (287 Pac. 1066.)
    Hamilton, Gross & Howard, James H. Mathers, and Goodwin & Freeman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county of robbery with firearms, and was sentenced to serve a term of twenty-five years in the state penitentiary.

From the judgment of conviction, the defendant appealed to this court. The appeal was perfected July 20, 1928, by filing in this court his petition in error with case-made attached. Since the appeal was taken, and after final submission of the cause, said defendant departed this life, as shown by statement of the warden of the state penitentiary at McAlester, Okla. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear* that the plaintiff in error has died pending the 'determination of his appeal, the cause will be abated. It is therefore ordered that the said cause do abate, with directions to the trial court to enter its appropriate order to that effect.

CHAPPELL, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    Ex parte M. M. PROCK.
    No. A-7738.
    Opinion Filed Feb. 20, 1930.
    (287 Pac. 1091.)
    Clay Snodgrass and Grigsby & Page, for petitioner.
    C. H. Madden, Co. Atty., for respondent.
   DAVENPORT, J.

This is an original proceeding in habeas corpus brought by the petitioner, M. M. Prock. The petitioner alleges that he is unlawfully restrained of his liberty by the sheriff, E. T. Smith, of Harmon county; the cause of his restraint is that on the 14th day of February, 1930, there was filed in the district court of Harmon county, state of Oklahoma, a certain information wherein it was attempted to charge the said defendant with the crime of embezzlement; that the information, together with exhibits attached thereto, wholly fails to charge any crime or offense against the laws of the state of Oklahoma; and that by reason of said fact said imprisonment aforesaid is illegal, and your petitioner is entitled to be discharged . therefrom.

Petitioner further alleges that this petition is filed in this court after the same has been presented to the Honorable Frank Mathews, judge of the Twenty-Fifth judicial district, in and for Harmon county, Okla., and has been denied. Petitioner then prays that the writ be granted and he be discharged from custody.

The information in this case is regularly filed in a court of competent jurisdiction. The questions raised by the petitioner are such questions as cannot be raised by habeas corpus.

“Habeas corpus may not be used either before or after conviction to test the sufficiency of the indictment or information.” Section 432, C. O. S. 1921; Ex parte Woods, 7 Okla. Cr. 645, 125 Pac. 440; Ex parte Spencer, 7 Okla. Cr. 113, 122 Pac. 557.

“The writ of habeas corpus cannot take the place of a writ of error or of an appeal.” Ex parte Adams, 42 Okla. Cr. 27, 274 Pac. 485, and cases therein cited; Ex parte Overby, 43 Okla. Cr. 400, 279 Pac. 523.

The writ is therefore denied.

CHAPPELL, J., concurs. EDWARDS, P. J., absent, not participating.


author: EDWARDS, P. J.

text:
    CHARLIE SIMMONS v. STATE.
    No. A-7294.
    Opinion Filed Feb. 28, 1930.
    (287 Pac. 1051.)
    Geo. L. Zink, for plaintiff in error.
    J. Berry King, Atty. Gen., and W. A. Bolding, Co. Atty., of Hobart, for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor and Avas sentenced to pay a fine of $50 and to serve thirty days in the county jail.

The appeal was lodged in this court in February, 1929, and plaintiff in error was at large upon an appeal bond. The state has filed a motion to dismiss, from which it appears that defendant, after his conviction, left' the state of Oklahoma, and is a fugitive, his whereabouts being unknown ; that a warrant for said plaintiff in error has been in the hands of the sheriff of Kiowa county for a period of more than six months, and he has been unable to apprehend him or to learn his whereabouts. It is settled by many decisipns of this court that, where a defendant has been convicted and perfects an appeal to this court, this court will not consider his appeal, unless he is where he can be made to respond to any judgment or order which may be rendered in the case. Where a defendant becomes a fugitive from justice pending, the determination of his appeal, this court upon proper motion will dismiss the same.

The case is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    J. R. RICH v. STATE.
    No. A-6992.
    Opinion Filed Jan. 25. 1930.
    Rehearing Denied Feb. 28, 1930.
    (284 Pac. 903.)

      John L. Gilson and Joe T. Rogers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county on a charge of embezzlement, and his punishment fixed at a term of three years’ imprisonment in the state penitentiary.

The evidence of the state tends to show: That about the 1st of November, 1926, Jerry C. Powell, a farmer, residing in Texas county, deposited in the elevator of defendant, J. R. Rich, 3,900 bushels of maize, the agreement being that Powell would pay Rich 1 cent per bushel per month for the storage, and should have a right to sell such maize at any time or withdraw the same from the elevator upon the payment of storage charges. That Powell delivered the last of the maize to the defendant about December 3d or 4th. That Powell never went back to the elevator nor made any investigation about the storage until about the 1st of March, 1927, at which time the Rich Elevator Company Was closed by creditors, and, when Powell went to investigate, there was no maize in the elevator. That immediately after the defendant received the maize for storage, sold the same on the open market, collected the money for it, and never advised Powell that it was sold or paid over to him the proceeds of such sale. The state introduced 49 grain tickets in writing and issued by the defendant in the name of the Rick Grain Company, which recite that the grain was received for storage. That defendant left the town of Hooker where the grain was stored, in February, 1927, and his whereabouts were unknown at the time the elevator was finally closed. That defendant was finally arrested in the city of Chicago, and brought back to Hooker for trial. The theory of the defendant was that the depositing of the milo maize by Powell with the elevator of the defendant constituted a sale by Powell to the elevator company of the grain deposited ; that therefore there could be no conviction of the crime of embezzlement under the facts in the case.

It is first contended that the trial court erred in permitting the information to be amended after the trial began. The original information charged the embezzlement of 3,900 bushels of milo maize and the proceeds thereof, but did not allege the value of this maize. The amendment was made by interlining after the words“3,900 bushels of threshed milo maize” the words “of the reasonable value of $2,000.00.” This court has held that the information may be amended in substance at any time after the trial begins with leave of court, if no prejudice therefrom results to the defendant. Lowe et al. v. State, 7 Okla. Cr. 32, 121 Pac. 793; Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; French v. State, 17 Okla. Cr. 542, 190 Pac. 707; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Saunders v. State, 33 Okla. Cr. 336, 244 Pac. 55; Robards v. State, 37 Okla. Cr. 371, 259 Pac. 166; Orum v. State, 45 Okla. Cr. 193, 282 Pac. 899.

In the case at bar, the defendant objected to the amendment upon the ground that there was no legal authority for making the sama He made no application for continuance, no showing of surprise, nor made any request for additional time to prepare his defense, but based his objections upon the ground that, the information not having charged an offense in its original form, and the defendant having demurred to the same and raised the question, and the jury having been impaneled, and most of the evidence offered in the trial of the case, the court was without any legal authority to permit the amendment. The information was defective, in that it failed to charge the value of the goods embezzled. But, since the information was not void for failure to state a cause of action, but merely defective in failing to state the charge in proper form, it was within the discretion of the trial court to permit the amendment. The additional allegation of the value of the milo maize permitted to be inserted in the information would not alter its allegations to such an extent as to require any additional proof upon the part of the defendant. The original information charged the embezzlement of the milo maize itself and of the proceeds of the same. The defendant knew that this maize had a value, and, being an elevator man, he knew the reasonable market value of the same, and could not have been surprised or injured by an amendment of the kind permitted in this case. Nowhere in the record do counsel for the defendant make any showing that the material rights of the defendant were prejudiced by the amendment. Counsel for defendant nowhere point out in their brief any substantial reason why the rights of the defendant were prejudiced by such amendment. Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 375, 107 Pac. 735.

It is next urged that the evidence is insufficient to sustain the conviction. This proposition is based on the •contention that the transaction between the defendant and the prosecuting witness constituted a sale and not a bailment. Powell, the prosecuting witness, testified:

“A. Well, I drove down there one afternoon, I and my wife, my wife stayed in the car, and I went in and asked him (Bich) about storage and he said he had storage room and the price agreed upon was one cent per bushel per month, and that I had permission at any time to sell it at my will, time or place, and that I could demand my grain or sell it if I. liked.”

In addition to this verbal agreement, testified to by Powell,- the state introduced 49 grain tickets issued by the defendant to Powell; each ticket reciting that the grain was received to store. This evidence was amply sufficient to establish the fact that the grain was received by the defendant for storage. Defendant contends that the oral agreement testified to by Powell is governed in Oklahoma by sections 5186, 5221, C. O. S. 1921. In 1915 the Legislature passed what is known as the Uniform Warehouse Receipts Act, now sections 11123-11183, C. O. S. 1921, sections 11144-11146, of which have been construed. These last-mentioned sections of the statute have been construed in connection with the other two sections of our general statute dealing with bailments.

In the case of Citizens’ State Bank of Vici v. Gettig, 77 Okla. 48, 187 Pac. 217, the court held that the sections of the Warehouse Act constituted a specific statute, and that it overruled the general statute then in effect, in so far as the particular subject was covered in the special statute. The defendant contends that, since his elevator was only of 20,000 bushel capacity, therefore it did not come within the Warehouse Act independent of any statute regulating bailments. The prosecuting witness should have entered into a contract with the defendant as bailee, and could have stored this milo maize with him and a failure to account for and deliver to the prosecuting witness the milo maize or the proceeds received from a sale of the same would have constituted an embezzlement. Therefore it can make no difference whether the elevator of Rich’s could have qualified as a public warehouse or not.

The defendant complains of other errors, but they are all without merit. For the reasons stated, the cause is affirmed.

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


text:
    Ex parte LYMON FORD.
    No. A-7708.
    Opinion Filed Feb. 28, 1930.
    (287 Pac. 1057.)
    Hulsey & Hulsey and W. N. Redwine, for petitioner.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. The petitioner alleges that he is illegally restrained of his liberty in the state penitentiary at Mc-Alester; that in 1922 he was convicted in Ottawa county and sentenced for a term of eleven years for the crime of robbery and was incarcerated in the penitentiary; that thereafter certain officers in the state of Kansas made application to the Governor of this state for a release for petitioner, to be taken to Kansas. The governor thereupon issued a parole, attested by and filed with the Secretary of State, containing among others the following conditions :

“Conditional Parole and Order of Transfer to the Authorities of Riley County, State of Kansas. * * * Whereas, it is now made to appear from a letter from the Hon. Ben. S. Paulen, Governor of the state of Kansas, that the public interest may best be served by releasing the said Lymon Ford, No. 12033, from the Oklahoma State Penitentiary at McAlester, Oklahoma, and the transferring of said Lymon Ford into the custody of the state of Kansas. * * *
“Now, therefore, I, M. E. Trapp, Governor of the state of Oklahoma, by the power and authority vested in me by the Constitution and laws of the state of Oklahoma, do hereby grant unto the said Lymon Ford, a constitutional parole from said imprisonment, and do hereby direct said Lymon Ford to report to the honorable Walter Gage, county attorney of Riley County, Kansas, not less than ten days after this order shall have been signed and in effect.
“Provided, the said conditional parole and order of transfer is issued upon the following terms and conditions to wit:
“First: That the said Lymon Ford shall report in writing to the warden of the Oklahoma state penitentiary at McAlester, Oklahoma, once each month, unless otherwise ordered by the Governor of the state of Oklahoma, such reports to disclose the whereabouts of the said Lymon Ford, his post office address and the character of his occupation.
“Second: That the said Lymon Ford shall abstain from the use or handling of intoxicating liquors in any form; that he shall faithfully and industriously follow1 some useful and lawful occupation; that he shall avoid all evil associations, obey the laws, and in all ways conduct himself as an upright citizen.
“Third: It is expressly understood by the said Lymon Ford that the Governor may revoke this conditional parole for_violation of any one or more of the conditions hereof; or for any other cause by him deemed sufficient.
“Fourth: That in the event this conditional parole shall be revoked at any time, and the said Lymon Ford shall be out of the state of Oklahoma at the time of revocation of same, he waives all the rights and privileges allowed him under the Constitution and laws of the United States, or the laws of any foreign state, and expressly agrees to return to the state of Oklahoma without the aid of requisition. * * *
“I, Lymon Ford, hereby declare that I have carefully read and do fully understand the contents and conditions of the above parole agreement and hereby accept the same and pledge myself honestly to comply with the said terms.
“Dated at Oklahoma City on this the.-.............day of .........1925.
“Lymon Ford.”

Petitioner was then delivered to the officers from Kansas and went to that state. Thereafter his parole was revoked, and he was apprehended in Texas and returned here and again imprisoned.

Petitioner asserts that the instrument signed by the Governor and above quoted' in part is a pardon and operates as a full discharge of the remainder of the term for which petitioner was sentenced, citing In re Whittington, 34 Cal. App. 344, 167 Pac. 404; In re Hess, 5 Kan. App. 763, 48 Pac. 596; State v. Saunders, 288 Mo. 640, 232 S. W. 973; Ex parte Guy, 41 Okla. Cr. 1, 269 Pac. 782.

- The state insists that the instrument is a parole, and, it having been revoked by the Governor, that petitioner is .lawfully incarcerated to serve the remainder of his term. Tf the instrument is a pardon, petitioner is entitled to be discharged. If it is a conditional pardon and the conditions have been performed and the instrument absolute, he is entitled to be discharged. If it is a parole, then the Governor had authority to revoke it, and when revoked, petitioner had the status of a convict at liberty and his apprehension and incarceration is legal. The chief executive of this state is vested by the Constitution with power to grant pardons and paroles. An unconditional pardon, in legal contemplation wipes out the offense itself and the guilt of the offender. A conditional pardon has a like effect when the conditions have been performed. A paróle is a release of a convict upon certain conditions to be observed by or performed by him and a suspension of his sentence during the liberty thus granted. Ex parte Tom Collins, 32 Okla. Cr. 6, 239 Pac. 693, and authorities cited. The conditions which an executive may attach to a conditional pardon or to a parole must be such as are not illegal, immoral, nor incapable of being performed. The record in this case does not disclose the circumstances leading to the release of petitioner by this instrument nor the subsequent acts or conduct of petitioner. Aside from the record, counsel in presenting the matter to this court suggested that petitioner was understood to have information which would be valuable to the authorities of Kansas, and that on the agreement that this information would be made available to them the instrument was executed and petitioner delivered to them with his consent. What transpired thereafter was not stated. We see no reason why, for the purpose of assisting in the administration of the law, a convict in one state, with Ms consent and agreement, might not be paroled and be taken into another state as was done in this case. If he were taken by force or against his consent or by extradition, a different question would be presented. The instrument here involved is entirely different to that under consideration in the case of Ex parte Guy, 41 Okla. Cr. 1, 269 Pac. 782, and is also different from that in Ex parte Youstler, 40 Okla. Cr. 273, 268 Pac. 323. The only thing that distinguishes the instrument here from the ordinary parole is the condition that the petitioner shall go with and report to the authorities of the state of Kansas. Petitioner consented to do this, and so far as we are advised or any contention is made that condition was fully performed. Ex parte Hamilton, 41 Okla. Cr. 322, 273 Pac. 286.

Upon a careful consideration of the contentions made and the instrument involved, we are fully convinced that this instrument is a parole, and when revoked petitioner might legally be again imprisoned to serve the remainder of his sentence.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.