author: ARMSTRONG, J.

text:
    J. M. PINCHBACK v. STATE.
    No. A-3072.
    Opinion Filed February 16, 1918.
    (170 Pac. 714.)
    1. APPEAL AND ERROR — Review—Statute. The right of appeal is regulated by statute. The time within - which an appeal must ■be lodged with the clerk of this court hnd all the duties imposed upon the person appealing, as well as the privileges granted such person, are defined by section 5991 of the Statutes (Rev. Laws 1910), and these provisions must be substantially complied with. Otherwise this court cannot review a record on the merits.
    2. APPEAL AND1 ERROR — Case-Made—Extension of Time. An order made by a trial court, extending the time within which to make and serve a case-made, does not automatically • extend the time within which to file the appeal. All such orders should cover both the time within which to make and serve case-made and the time within which to file the appeal, as provided in sections 5991 and 6007, Rev. Laws 1910. Both these sections must be complied with.

      Appeal from County Court, Jefferson County; E. L. Dillard, Judge.

    J. M. Pinchback was convicted of carrying' concealed weapons, and he appeals.
    Dismissed.

      Bridges & Vertrees, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for -the State.
   ARMSTRONG, J.

Plaintiff in error, J. M. Pinch-back, was convicted at the April, 1917, term of the county court of Jefferson county, on the charge of unlawfully carrying concealed weapons, and his punishment fixed at a fine of $25 and imprisonment in the county jail for a period of 20 days. The judgment was entered in the trial court on the 12th day of April, 1917. The appeal was lodged in this court on the 12th day of July, 1917. The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error did not secure an order from the trial court extending the statutory time within which to file his appeal, and that, therefore, the filing of the appeal by lodging with the clerk the petition in error with case-made attached, on the 12th day of July, 1917, more than 60 days after the rendition of the judgment, was too late to give this court jurisdiction to determine the questions raised in the assignments of error.

The proposition here raised was determined by this court in Stumpf v. State, 6 Okla. Cr. 761, 117 Pac. 648, and Hyneman v. State, 6 Okla. Cr. 341, 118 Pac. 616, and many others.

The right to appeal is regulated by statute. The time within which an appeal must be filed and all the privileges and duties of the person taking the appeal are defined by the statute. Section 5991, Rev. Laws 1910, among other things, provides:

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

In the Stumpf Case, supra, discussing this statute, it was said:

“Under this statute an appeal must be taken in this court within sixty days from the date of judgment by the trial court, unless the time is for good cause shown extended by the trial court. In this case the court extended the time within which to make and serve case-made, but made no order relative to the time within which the appeal should be perfected. The court could not limit the time to less than sixty days within which to take the appeal, but could extend it for good cause shown, not to exceed 120 days. This it was not asked to do, and did not do.”

In the case under .consideration the Attorney General’s motion to dismiss is based upon the same ground as that in' the Stumpf Case. Extensions of time were secured from the trial court within which to make and serve case-made, but no order was secured for an extension of time within which to perfect the appeal. In many of the cases in which motions have been filed to dismiss,, based upon the defects disclosed in the Stumpf Case, dismissals have been avoided by the filing of nunc pro tunc orders made by the trial court, showing thát he intended to or did make orders extending the time within which the appeal could be filed at the same time extensions were ' granted for making and serving the case-made.

This court has been very liberal in sustaining this practice. It is the policy of the law to grant the right of review on appeal, and the appellate courts are not inclined to sustain objections to the jurisdiction to review an appeal on its merits when the statutory provisions have been substantially complied with. There are two sections of the statute which govern these matters; the first, section 5991, Rev. Laws 1910, supra, governing the making of an order by the trial court fixing the time within which the appeal may be taken and governing the trial court in extending the period for filing the same. Section 6007, Rev. Laws 1910, governs the making and service of case-made, and authorizes the court to make orders extending' the same, etc. The language of this section is as follows:

“On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct.”

As said in the Stumpf Case supra,, they are two separate and distinct provisions of the statute, neither having reference to nor controlling the other. The provisions are plain and mandatory, and must be complied with in order to give this court jurisdiction to review an appeal on its merits.

In the case under consideration, counsel undertook to secure from the court a nunc pro tunc order covering the deficiencies complained of, but the trial court refused to make the same. The contention, therefore, that the appeal should not be dismissed is wholly untenable, and has no semblance of merit upon which to stand.

It follows, therefore, that the motion to dismiss should be sustained, and the appeal accordingly dismissed..

It is so ordered.

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


source: Caselaw Access Project

author: MATSON,. J.

license: Public Domain

text:
    SOMIE McCARTER v. STATE.
    No. A-2833.
    Opinion Filed February 16, 1918.
    (170 Pac. 712.)
    1. CONTINUANCE: — Conditions Precedent. Before a defendant applies for a continuance it is bis duty to exhaust all of his legal remedies to obtain the presence of his witnesses, and this must affirmatively appear in the application for a continuance,' otherwise the application will be bad on its face.
    2. SAME — Absent Witnesses — Subpoena. When the witnesses have been subpoenaed and there is no showing why they are absent, defendant should have an attachment issued for them. And if he-does not ask for an attachment he is not entitled to a continuance.
    3. CRIMINAL RESPONSIBILITY — Alcoholic Insanity — Evidence. Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors, and known as “delirium tremens,”' or “mania a potu,” renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as ap- ' plied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such a disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.
    Evidence offered by defendant m tins case to prove alcoholic insanity .examined and held insufficient under the holding of this court in Cheadle v. State, 11 Okla. Cr.' S66, 149 Pac. 019, L. R. A. 1915E, 1031.
    APPEAL AND ERROR — Testimony of Absent Witness — Presumption. Where a witness is not produced and sworn in court, and no sort of effort’is made to develop his testimony, this court will not surmise as to what he would or would not have testified had he been produced. Tf<
    5. APPEAL AND ERROR — Reversal—Instructions. Where no objection is made or exception taken to any of the instructions given by the trial court, and no reguest is made by counsel for the defendant that additional instructions be given, and the instructions as a whole are as favorable to the defendant as the facts would warrant, this court will not reverse a judgment of conviction because the trial court could have more fully instructed upon certain abstract propositions of law involved in the defense interposed.

      Appeal from District Court, Pontotoc County; George C. Crump, Assigned Judge.

    Somie McCarter was convicted of assault with intent to kill, and sentenced to serve a term of five years in the penitentiary, and he appeals.
    Judgment affirmed.

      J. W. Dean, George W. Burris, and Crawford & Bolen, for plaintiff in error.

      S. P. FreeUng, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON,. J.

It is first contended that the trial court erred in overruling motion of defendant for continuance on account of absent witnesses. The witnesses were Mr. and Mrs. E. J. Neal, both residents of Tuttle, Grady county, Olda., at the time the case was called for trial. A subpoena for out of the county witnesses, regularly indorsed by the district judge, had been served upon these witnesses prior to the trial, and the proper return of service had been made thereon. The application was to continue the cause until another term of court. The application was properly denied. In the case of Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873, it was held:

“Before a defendant applies for a continuance it is his duty to exhaust all of his legal remedies to obtain the presence of his witnesses, and this must affirmatively appear in the application for a continuance, otherwise the application will be bad on its face.”

It is apparent that the defendant could, as a matter of right, have had an attachment issued for these witnesses. He should have exhausted that remedy and asked the court to grant a temporary continuance until the attachment could have been served. A failure to exhaust such remedy indicates clearly that the continuance was desired more than the presence of the witnesses. In the case of Lee v. State, 7 Okla. Cr. 144, 122 Pac. 1111, it was held:

“When the witnesses have been subpoenaed and there is no showing why they are absent, defendant should have an attachment issued for them. And if he does not ask for an attachment, he is not entitled to a continuance.”

We conclude, therefore, that this first assignment of error is without merit.

It is next contended that the court erred in excluding proffered evidence which tended to establish the defense of “alcoholic insanity.” The record upon this proposition is as follows: '

“Q. How long you known Somie McCarter? A. I’ have known Somie ever since 1898. Q. You known him ever since you lived out in that community, haven’t you? A. Y!es, sir. Q. During that time has he been a man addicted to strong drink or otherwise? By Mr. Bullock: Objected to as. incompetent, irrelevant and immaterial. By the Court: Sustained. By Mr. Dean: Exception. By the Court: Let the record show that the court holds that the defendant cannot introduce the plea for crime that he voluntarily got drunk. You may prove that some one drugged him, or he took the whisky through mistake, or something like that; b.ut if that was a defense I would get drunk and kill all my enemies. Voluntary intoxication is no defense. By Mr. Dean: Defendant excepts. By Mr. Dean: The defendant offers to prove by the witness that prior to the shooting the defendant was drunk a day and a night, and also by this witness that he has been a constant user of alcohol, and also offer to prove by a witness named Dr. S. P. Ross, that a constant user of intoxicants — liquors—and hard drinker, will disease the mind to such an extent that when a person is intoxicated he is temporarily insane. By the Court: You mean to state to the court that he is a constant drinker; that you can prove that; or he just gets on periodical sprees.' By Mr. Dean: I don’t know whether he is a constant drinker. By the Court: How often can you prove he has been drunk in the past year? By Mr. Dean: I don’t know. I can prove he was drunk over a dozen times in the last year. By the Court: That the extent of his drinking. By Mr. Dean: No, sir. By the Court: Is it your contention he is only crazy when he is drunk? By Mr. Dean: Yes, sir. By the Court: That testimony will be denied. (The above conversation between the court and the counsel for the defendant, and the offer to prove certain things shown by the page just before this, were all had out of the Rearing of the jury. The stenographer and lawyers being called up to the -judge's bench.)”

In Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031, it was held:

“Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors and known as ‘delirium tremens,’ or ‘mania a potu, renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such a disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.”

A careful reading of what was held by this court in the Cheadle Case compared with what was offered to be proven in this case clearly indicates that the evidence offered does not measure up to the requirements of proof necessary to establish alcoholic insanity. It may also be noted that the offered evidence did not tend to establish the mental condition of the defendant at the time it is claimed this crime was committed, but only that he was drunk at said time. Dr. S. P. Ross was never placed upon the witness stand, and no offer to prove anything by him was made. The offer as to such witness clearly comes within the rule stated in Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279, as follows:

“Where a witness is not produced and sworn in court and no sort of. effort is made to develop his testimony, this court will not surmise as to what he would or would not have testified had he been produced.”

Certain instructions of the court are also complained of, but we have examined the record and find that no objection was made, nor exception taken, to any of the instructions given, nor were any other instructions requested by counsel for defendant so far as appears from this record. The defendant testified that he did not remember anything about this shooting;-that he was drunk at the time of the shooting. The court instructed that voluntary intoxication was no excuse or defense to the crime. The court also instructed that it was necessary for the state to prove' beyond a reasonable doubt the intent on the part of the defendant to commit the crime charged in the information. We think the instructions, considered as a whole, were as favorable to the defendant as his testimony would warrant.

The testimony on the part of the prosecution, which ■is practically uncontradicted, is to the effect that the defendant, without any provocation, fired 12 or 15 shots from a Winchester rifle at the prosecuting witness at a time when said witness was fleeing from defendant’s assault. It appears that the prosecuting witness was running down the road, and when the bullets were passing so close to him as to make his position precarious, as well as uncomfortable, he would lie down in the grass at the side of the road. Thereupon the defendant would stop shooting until prosecuting witness would start running again, when defendant would again commence firing, and he continued same until this prosecuting witness was entirely out of sight.

It would be a travesty upon justice to absolve this defendant from all blame just because he was intoxicated at the time of the shooting. Under such circumstances, he was not irresponsible for his' acts, as was heretofore -held in Cheadle v. State, supra.

The judgment is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: PER CURIAM.

text:
    P. M. VICK v. STATE.
    No. A-2865.
    Opinion Filed February 18, 1918.
    (170 Pac. 711.)
    APPEAL AND ERROR — Time for Filing Petition in Error — Jurisdiction. The statute limiting tbe time within which an appeal in a misdemeanor case can be taken to 120 days after -the judgment was rendered is mandatory, and, where not' complied with by filing petition in error with clerk, the Criminal Court of Appeals is without jurisdiction, and the appeal will be dismissed.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    P. M. Vick was convicted of á violation of the prohibitory law, and he appeals.
    Appeal dismissed.

      J. C. Denton and Frank Lee, for plaintiff in error.

      S. P. Freeling Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.’
   PER CURIAM.

The plaintiff in error, P. M. Vick, was convicted in the superior court of Muskogee county of- the offense of having possession of intoxicating liquors with intent to sell the same. The proof on the part of the state shows that the officers iff executing a search warrant found nine cases and five kegs of whisky, amounting to about 52 gallons, in a vacant store building, situated near the corner of Seventh and Tamora streets, city of Muskogee. The jury fixed his punishment at imprisonment in the county jail for a period of 60 days and a fine of $300. On May 6, 1916, the court rendered judgment in accordance with the verdict.

From the record it appears that an appeal from the judgment was attempted to be taken by filing in this court on November 2, 1916, a petition in error with case-made. Thus it appears from the record that the petition in error was not filed with the clerk of this court within 120 days after the judgment was rendered. It appearing that the information in this case merely charges a misdemeanor, the statute limiting the time within which an appeal can be taken to this court is mandatory. It follows that the court is without jurisdiction of this appeal.

The purported appeal is therefore dismissed, and the cause remanded to the superior court of Muskogee county. Mandate forthwith.


author: DOYLE, P. J.

text:
    BERT ELLIOTT v. STATE.
    No. A-2872.
    Opinion Filed February 18, 1918.
    (170 Pac. 711.)
    APPEAL AND ERROR — lime for Taking. An appeal in a criminal case is taken by filing in this court a petition in error with case-made attached, or a transcript of the record, together with proof of notices of appeal as required by the statute, or in lien of such notices the record to show the issuance and service of summons in error, or the waiver of the same by the Attorney General. When this is not done, within the time prescribed by the statute for taking an appeal, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Bert Elliott was convicted of rape, and he appeals.
    Appeal dismissed.

      B. F. Turner and H. H. Brown, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Bert Elliott, was convicted of rape in the second degree, under an indictment charging him with the crime of rape committed upon one Virginia Newman, a female under the age of 14 years. The judgment and sentence of the court, rendered November 4, 1916, was that he be imprisoned in the penitentiary at McAlester for the term of one year and one day. From the judgment an appeal was. attempted to be taken by filing in this court á petition in error with a certified transcript of the record.

It appears from the-record that no notices of appeal were served as provided by law, and no summons in error was ever issued, and no praecipe therefor was ever filed by counsel for plaintiff in error, and no waiver of summons in error by the Attorney General was ever filed, and * for this reason the Attorney General has filed a motion to dismiss the appeal. By numerous decisions of this court it is held that on a failure to file proof of service of the notices of appeal required by the statute to be served upon the county attorney and the clerk of the court in which the judgment was rendered, or the failure to have a summons in error served upon the Attorney General, or to file a waiver of the same within the time prescribed by the statute for taking an appeal, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. It follows that the motion to dismiss the appeal should be sustained.

The purported appeal herein is therefore dismissed, • and the cause remanded to the district court of Carter county, with direction to enforce its judgment and sentence.

ARMSTRONG and MATSON, JJ„ concur.


text:
    STATE v. J. E. McELROY.
    No. A-2304.
    Opinion Filed February 25, 1918.
    (170 Pac. 915.)
    APPEAL AND ERROR — Proof of Service of Notice of Appeal — Jurisdiction. Where the state attempted to appeal from a judgment sustaining a demurrer to the indictment, and the record shows that no proof of service of notice of appeal was made within the time allowed by the statutes, the Criminal Court of Appeals does not acquire jurisdiction, and appeal will be dismissed.

      Appeal from District Court, Wagoner County; R. P. de Graffenried, Judge.

    J. E. McElroy was indicted for embezzlement. Demurrer to indictment sustained, and the State appeals.
    Appeal dismissed.

      C. E. Castle, Co. Atity., S. P. Freeling, Atty Gen., and R. McMillan, Asst. Atty. Gen., for the State.
    ' Joseph S. Dickey, Jr., Edward M. Gullaher, and Watts & Molony, for defendant in error.
   PER CURIAM.

In this case J. E. McElroy, as county clerk of Wagoner county, was by the grand jury of said county indicted for embezzlement, to which indictment a demurrer was interposed by the defendant, and which demurrer was by the judgment of the district court sustained.

It appears that the state has attempted to appeal from said judgment. An examination of the record discloses that no proof of service was made of the notice of appeal required by law to be served upon the defendant. When this is not done within the time allowed by the statute, this court does not acquire jurisdiction of the appeal.

It follows that upon the record this court is without jurisdiction. The attempted appeal herein by the state is therefore dismissed.


text:
    LEE FOWLER v. STATE.
    No. A-2467.
    Opinion Filed February 25, 1918.
    (170 Pac. 917.)
    INDICTMENT AND INFORMATION — Habitual Criminal — Sufficiency. An information, in order to charge a crime under the Habitual Criminal Act (Laws 1910-11, c. 70, sec. 18), should contain allegations of fact, setting forth that the offense charged is a second or subsequent violation of the lawj and that the person charged has been convicted in a court of competent jurisdiction. In this respect, the information must be definite and certain.

      Appeal from District Court, Stephens County; Frank M. Bailey, Judge.

    Lee Fowler was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.

      A. K. Swan, for plaintiff in error.

      S. P. Freeling, Atty. ■ Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted upon an information which, omitting merely formal parts, alleges :

“That Lee Fowler did, in Stephens county and in the State of Oklahoma, on or about the 25th day of June in the year of our Lord 1914, and anterior to the presentment hereof, commit the crime of selling whisky in the manner and form as follows, to wit: That Lee Fowler did willfully, unlawfully, and feloniously sell to P. W. Allred one pint of Hill & Hill whisky; that on the 19th day of January, 1914, the said Lee Fowler entered a plea of guilty in the county court of Stephens county, Okla., to the charge of conveying intoxicating liquors in violation of the prohibitory laws of the State of Oklahoma, contrary to,” etc.

The jury rendered the following verdict:

“We, the jury, drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant, Lee Fowler, guilty as charged in the information herein, and fix his punishment at a fine of $50, and by imprisonment in the state penitentiary for the term of one year and one day.”

To reverse the judgment rendered in pursuance of the verdict, the defendant appeals.

The errors assigned are that the verdict is contrary to the law and the evidence; that the information is insufficient in that it does not state facts sufficient to charge a felony, for which reason , said district court was without jurisdiction; that the court erred in admitting in evidence the journal entries of two judgments of former convictions.

The evidence for the state, briefly stated, was as follows:

P. W. Allred testified that on the 25th day of June, 1914, in the city of Duncan, he bought a pint of Hill & Hill whisky from the defendant, Lee Fowler; that he gave ' the whisky to J. T. Brown, who appears to be the complaining witness.

The clerk of the county court of Marshall county was then called and sworn, and produced and identified the journal entry of judgment in case No. 1241, filed in said county court, wherein Lee Fowler entered a plea of guilty to the charge of conveying intoxicating liquors, and reciting that, on May 22, 1913, judgment was entered and defendant was sentenced to be confined in the county jail for 30 days and to pay a fine of $50, which journal entry of judgment was offered in evidence. Thereupon the record is as follows:

“Mr. Swan: We object to the introduction of this judgment for two reasons: First, the information does not allege that any judgment was ever rendered; it alleges that the defendant pleaded guilty; it does not state that any judgment was ever entered; and the other objection is that this is a conviction for a different offense to the one charged in the information in this case.”

The clerk of the county court then produced another judgment, rendered on the 19th day of January, 1914, wherein upon hite plea of guilty to the charge of conveying intoxicating liquors, Lee Fowler was sentenced to be confined in the county jail for 30 days and pay a fine of $75. To the introduction of this judgment the same objections were made.

We think the court erred in admitting in evidence the journal entry of judgment of the county court rendered May 14, 1913, because the information does not contain an allegation that the defendant had been convicted of violating the prohibitory liquor law -at that'time. However, it appears that the information does not properly allege a former conviction. The only allegation is:

“That on the 19th day of January, 1914, the said Lee Fowler entered a plea of guilty in the county court of Stephens county, Okla., to the charge of conveying intoxicating liquors in violation of the prohibitory laws of the State of Oklahoma.”

Entering a plea of guilty is not a conviction, and for this reason the information is insufficitent to charge a felony under the Habitual Criminal Act (Laws 1910-11, c. 70, sec. 18). In Tucker v. State, ante, p. 54, 167 Pac. 637, it is held that:

“An information, in order to charge a crime under the Habitual Criminal Act, should contain allegations of fact setting forth that the offense charged ife a second, or subsequent, violation of the law, and that' the person charged has been convicted in a court of competent jurisdiction. In this respect the information must be definite and certain.”

It is our opinion that the absence of a direct and positive allegation of the defendant’s previous conviction in a court of competent jurisdiction is a fatal defect, and this absence cannot be supplied by any intendment, inference, or implication. In-the absence of such allegation the district court was without jurisdibtion to render the judgment appealed from. The judgment is therefore reversed.

ARMSTRONG, J., concurs; MATSON, J., not participating.


text:
    W. H. CAMPBELL v. STATE.
    No. A-2686.
    Opinion Filed February 25, 1918.
    (170 Pac. 915.)
    1. INDICTMENT AND INFORMATION — Offense Charged — Assault With Intent to Kill — Conviction of Assault With Dangerous Weapon. . On an information based on section 2336, Rev. Laws 1910, charging the defendant with the offense of assault with intent to kill by shooting, he may properly be convicted of the offense defined by section 2344, of assault with a dangerous weapon with intent to injure any person, although without intent to kill such person, and the. court should submit the case to the jury for consideration upon every degree of assault which the evidence in any. reasonable view of it suggests.
    2. TRIAL — Verdict—Sufficiency—Sentence. A verdict finding the defendant “guilty as charged in the information and submit his punishment to the court” is insufficient as to form and is too vague and uncertain to support a judgment for the highest degree of the offense charged.

      3. HOMICIDE — Assault With Intent to Kill — Evidence—Instruction. In a prosecution for intentionally and wrongfully shooting another with intent to kill, where the evidence shows that the defendant was on his own premises, and the complaining witness advanced upon him with a Winchester rifle pointed at him, it was error for the court to instruct the jury on the law of mutual combat. .

      Appeal from District Court, Cotton County; Cham. Jones, Judge..

    W. H. Campbell was convicted of assault with intent to kill, and he appeals.
    Reversed.

      Elliott F. Hook and S. A. Horton, for plaintiff in error. '

      S. P. Freeling, Atty Gen., and R. McMülan, Asst. Atty Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted upon an information which, omitting formal parfó, charges:

“That at and within said county and state on the 18th day of September, 1914, W. H. Campbell, then and there being, did then and there willfully, unlawfully, and feloniously make an assault in and upon the person of H. C. Schnapel with certain deadly and dangerous weapons likely to produce death, to wit, a certain double-barreled shotgun and a certain automatic revolver, and did then and there and therewith shoot metal bullets at,- against and into the body of the said H. C.. Schnapel, with the willful, unlawful, and felonious intent of him, the said W. H. Campbell, the said H. C. Schnapel to kill and murder, contrary to,” etc.

To reverse the judgment rendered on the verdict the defendant appeals. It appears that the defendant, Campbell, and the prosecuting witness, Schnapel, married half-sisters, and lived on adjoining farms; that Schnapel had about 30 acres of cotton land rented from the defendant. As a witness he testified that’he had a cotton crop on his place, and had about 1,100 pounds,.but not enough for a bale, picked on his own place; that this cotton was in a wagon that he drove over to the Campbell place, where his two sons and another young man were picking cotton to fill out the bale; that Campbell appeared and asked what he was doing, and he told him he wanted to pick about 400 or 500 pounds of cotton to finish out the bale, and Campbell said, “You are trying to steal this cotton,” and he said, “No; I only want to finiteh the bale,” and Campbell said, “I would not trust no son of a b-ch,” and he told Campbell to get off this cotton patch, and Campbell hit him and got him down; that he got loose from him and started home, and Campbell followed him with a knife and said he had a good mind to cut his throat, and also said, “If you come back any more, I will kill you;” that he went home and got his Winchester rifle and seven cartridges and then went back in a round about way; that Campbell was picking cotton and had a cotton wagon in an adjoining cotton patch; that when he was within a hundred yards of Campbell he heard some one whistle; that then Campbell saw him and started towards his wagon, where he had a shotgun; that he did not believe that Campbell would shoot, so he walked on towards him; that he saw Campbell raise his gun; that he turned quickly, and raised his Winchester, and Campbell jumped behind his wagon and shot at him with an automatic, firing four or five shots; that witness shot at Campbell twice with his Winchester, ánd backed off into some woods near by, and then Campbell fired another shot at him; that one shot hit his finger and one shot hit a tobacco can in his hip pocket.

The only other witness for the state was C. C.'Schnap-el, who testified that he was 11 years old, and was with his father in the cotton field on the Campbell place- that afternoon; that the first time he saw the defendant, Campbell, that day, the latter was going towards his wagon, and Mrs. Campbell was with him, and Mr. Campbell had a double-barreled.shotgun, and witness’ father was going towards them carrying a Winchester; that Mr. Campbell fired the first and second shots, and his father then fired two shots.

As a witness, in his own behalf the defendant, Campbell, testified in part as follows:

“My age is 55 years. I had rented him 30 acres of land and he had cotton on the other place. He had picked one bale and hauled it off. About 5 o’clock in the evening I started to where my cotton pickers were, and I saw him mixing the cotton. I walked up to him and said, ‘Henry, I don’t like to have you mix this cotton;’ and he said, ‘The hell you say;’ and I said, ‘Well, I don’t;’ and he threw off his sack and said, ‘You must think that somebody is trying to rob you;’ and I said, ‘Well, it looks like you are trying to do something;’ and he said, ‘If you fool with me, I will divide this cotton right in the patch;’ and I said, ‘No; you won’t; you will do as you agreed to do;’ and he said, T will shoot you, you son of a b-ch,’ and we went together. I got him down and hit him one lick, and he said, ‘Don’t hit me any more, I give up.’ I let him up, and he started off and said, ‘God damn you, I will get my gun and kill you.’ I followed him out a ways and told him to come on back, and I said, ‘Henry,- let the gun business alone; that is poor business;’ and he wheeled around and said, ‘God damn you, If I ever catch you down on this farm again I will kill you;’ and I said, T have got business down here; and I guess I will be down here.’ I went to the house and told my wife, and I took my shotgun and revolver and started to where the boys were picking my cotton, and I told them about the trouble. I kept watching where he left his sack. I thought if he came back with a gun he would come that way. My wife came up, and I said, ‘Come on let’s go to the wagon and go to the house.’ My wife commenced calling for me to run and look out, I was going to be shot. I looked around, and Schnapel was standing sighting at me, and my wife kept hallooing for me to run. I didn’t run until he dropped down and pointed at me, and his gun cracked as I was getting behind the wagon. When I jumped behind the wagon, I set my shotgun down with my left hand. Schnapel, he was squatted down sighting when I looked out, and I shot at him with the automatic, and he shot. His bullet went right through the end gate, and then we took another shot apiece. He shot in the wagon spoke, even with the joint of my leg. I thought that would not do, and I grabbed the shotgun and took a shot with it, and then he flagged and ran behind a tree and went to sighting again, and I jumped back out of his sight. I put in another shell, and my wife hallooed that he was running again. I stepped out and watched him go out of sight. I fired two shots with the automatic and another with the shotgun.”

Maxey Sewell testified that he was picking cotton for the defendant, with Bill Stuard, and he came up with a gun on his shoulder and said he had trouble with Schnapel, and he.started towards the wagon. About that time witness noticed Schnapel coming with his gun, and Mrs. Campbell- told her husband, and he ran towards the wagon and Schnapel fired a shot, and after that they both fired two shots apiece. To the same effect was the testimony of the witness Stuard.

Mrs. Campbell testified that she followed her husband to. the cotton field and saw Schnapel before he fired' a shot, and she begged and pleaded with him not to shoot; that Schnapel dropped on his knee and fired the first shot.

Among others, the court gave the following instructions :

“Gentlemen of the jury, you are instructed that, if you believe from the evidence beyond a reasonable doubt that the defendant was informed and believed at the time he armed himself and returned to the field in question that he would meet the prosecuting witness, Schnapel, in the fiield armed as alleged for the purpose and in the expectation of willingly entering into a deadly combat with arms with the said prosecuting witness, Schnapel, and you further find that he did so enter into such combat, and was in such combat at the time he made the assault as alleged in the information, he would be guilty of assault as charged unless you should further find that at the time of the assault the defendant retreated in good faith and attempted to avoid the combat. (Objected to by defendant, and objection overruled, and exceptions allowed. Cham Jones, Judge.)
“And you are further instructed that, if you believe beyond a reasonable doubt that the defendant did arm himself and proceed to the place where the assault is alleged to have occurred with the intent or for the purpose of entering into a deadly combat voluntarily, then he cannot avail himself of the plea of self-defense. (Objected to by defendant, and objection overruled, and exceptions allowed. Cham Jones, Judge.)

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

“In reading the testimony alone a casual reader would wonder how the jury arrived at a verdict of guilty, inasmuch as the testimony for the defense and the admissions of the prosecuting witness, H. C.' Schnapel, show that Schnapel himself began the difficulty, and in the last' instance by taking a deliberate aim with a Winchester at Campbell. But the jury had all the witnesses before them, and settled this question in favor of the prosecution.
“In looking at the instructions we find what we think is their reason. The learned court below instructed the jury only upon the theory of mutual combat (see Driggers v. United States, 1 Okla. Cr. 193, 95 Pac. 612, 120 Am. St. Rep. 823), but did not instruct the jury upon the theory relied on by Campbell in his proof, which should have been done (see Douglas v. Territory, 1 Okla. Cr. 584, 98 Pac. 1023.) We do not think that the theory of mutual combat prevails in this case. Campbell might not have been a peaceable man, but he was on his own land, and found Schnapel actually appropriating his cotton, and after they had had a little fight with each other, Schnapel went away saying he would come back and kill him. The defendant had a right to go on his own land anywhere he pleased, and Schnapel had no right to forbid him; but in the instant case he had a wagon and hands at work and cotton being picked at the identical spot he was forbidden to go. This was not a mutual combat on the part of the defendant, but it was the simple assertion of his right to use his own property, to be present when it was done, and to resist an intruder. Had this theory been giken to the jury, we have serious doubts as to whether or not they would have returned a verdict as finally brought in. Having failed to give the theory of the defendant to the jury, and the theory that is upheld by all his proof, we. think such error was committed as would authorize the reversal of this case.”

Upon a careful examination of the record we have reached the conclusion that the judgment in this case should be reversed. In the first place,' the information charges the common-law offense of assault with intent to kill and murder. There is no such offense known to our statute. There is a well-recognized distinction between an assault with intent to murder and an assault with intent to kill. In this connection it appears the verdict is as follows:

“We, the jury do, upon our oaths find the defendant, W. H. Campbell, guilty as charged in the information and submit his punishment to the court.”

Thus it appears that the verdict is too vague and uncertain to support a judgment for assault with intent to kill.

It also appears that the court submitted only the issue of assault with intent to kill as defined by section 2386, Rev. Laws 1910, but did not instruct the jury upon the offense included in the crime charged, as defined by section 2344, Rev. Laws 1910. Our Criminal Procedure provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information. Section 5923, Rev. Laws 1910. Under the statute the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial. ,

We are also of the opinion that, for the reasons therein stated, the confession of error is well founded. The defendant being where he had a right to be, on his own premises, at the time the complaining witness advanced upon him with a deadly weapon, the law of mutual combat did not apply.

It follows that the instructions complained of were prejudicial to the substantial rights of the defendant.

For the reasons stated, the judgment of the trial court is reversed.

ARMSTRONG, J., concurs. MATSON, J., not participating.


author: MATSON, J.

text:
    JOHN HENRY PRATHER v. STATE.
    No. A-3135.
    Opinion Filed March 2, 1918.
    (170 Pac. 1176.)
    1. WITNESSES — Cross-Examination of Accused — Scope. On a trial for murder committed by an inmate of the state penitentiary, where the defendant,' testifying in his own behalf, volunteered the statement that he was serving a life term, it was competent on cross-examination to show the nature of the crime for which he was then serving such term.
    2. EVIDENCE — Matters of Mitigation or Aggravation — Statute. Where the jury assesses the punishment, matters to be considered in mitigation or aggravation of the punishment may be properly received in evidence on the trial.
    3. TRIAL — Argument—Inference. iThe county attorney in argument may draw all proper inferences which are deducible from the relevant and competent evidence admitted.
    4. APPEAL AND ERROR — Sufficiency of Evidence — Inferences. On the question of whether there is sufficient evidence to support a verdict, the court must treat as duly established, all facts warranted by the testimony of the witnesses for the state, and give the prevailing side the benefit of every favorable inference fairly and legitimately deducible from those'facts.

      Appeal from District Court, Pittsburg County; R. P. deGrdffenried, Assigned Judge.

    John Henry Prather was convicted of murder, and sentenced to death, and he appeals.
    This is an appeal from the district court of Pittsburg county, wherein one John Henry Prather was convicted of the crime of murder and sentenced to death. The deceased, Charles Chapman, alias Charles Ross, and Prather were cell-mates in the penitentiary located at McAlester. Their cell was number 60 in the third tier in the negro cell house. On the occasion of this difficulty, Prather had returned from work and was in the cell when Ross returned from his work between 7 and 7:30 in the evening. The evidence on the part of the state shows that as soon as Ross started to enter the cell Prather stabbed him with a dirk knife, which apparently had been made out of one of the steel case knives used in the dining hall at the penitentiary. The wound penetrated the abdomen, and the interior of the wound was larger than the point of entrance, showing that after the knife had been stuck into the body of the deceased, the defendant had apparently twisted it around. The wound was one ordinarily considered fatal. The deceased lived two or three days after being stabbed, and died at the hospital in the penitentiary.
    According to the witnesses for the state, very little was said by either party at the time of this difficulty. The nearest occupants of cells heard no scuffle or noise of any kind prior to the stabbing, testifying that apparently immediately after Ross started into the cell, he backed out with the remark to Prather, “Are you going crazy? You ought to be ashamed of yourself.”
    The. deceased made a dying statement to the warden of the penitentiary in which he stated that he and Prather had had no serious difficulty, but that a few days before this cutting Prather had intimated to him that he intended to kill one Boyd, who was then one of the yard guards at the penitentiary. Ross, the deceased, said he remonstrated with Prather, and attempted to get him to refrain from any such conduct as that, advising him it would be best to have a good prison record. Ross stated that after that occurrence Prather seemed to be incensed, and .that he knew of no other reason why he should kill him or stab him. Prather’s defense was that he stabbed Ross in order to protect himself from an assault about to be committed by Ross with a knife. He claims that Ross had threatened to kill him for revenge, because some other negro about the color of Prather had previously murdered his brother. When the deceased was taken to the hospital immediately after the stabbing, no weapon of any kind was found upon hfe person. The knife used by the defendant was found concealed in the toilet In the cell. The defendant at the time of this occurrence was serving a life term for murder. The deceased was serving a 16-year term for assault with intent to kill.

      Cad Mathis, for plaintiff in error.

      S. P. Freezing, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It' is first contended that the court erred in permitting the county attorney, over the objection and exception of counsel for defendant, in the cross-examination of the defendant, to ask him concerning a former conviction for murder committed in Oklahoma county. The record on this assignment is as follows:

“Q. Charley Ross just had 10 or 15 years ahead of him, didn’t he? A. Sir? Q. Charley Ross wasn’t a lifer? A. No, sir; doing 16 years. Q. You said a while ago you were in there for life? A. Yes, sir. Q. For killing a white man in Oklahoma county?
“Mr. Mathis: Object.
“The Court: You have a right to show he was convicted.
“Mr. Mathis: Yes,.sir; but not the circumstances.
“The Court: Q. You were charged with and convicted of murder? A. Yes, sir.
“The County Attorney: Q. In Oklahoma county? .A. Yes, sir. Q. You were sentenced to be hung?
“Mr. Mathis: Object to that as incompetent, irrelevant, and immaterial, and doesn’t tend to prove any issue in this case.
“The Court: I thi'nk he can ask him if he was convicted for murder and sent to the penitentiary for life. •
“The Court: What was your sentence? A. I was sentenced to death.
“The County Attorney: Q. That was afterwards commuted, was it?
“Mr. Mathis: I except to all of that, and ask that it be stricken from the record.
“The Court: All of which?
“Mr. Mathis: About his being sentenced to death and about it being commuted.
“The Court: Overruled, because that is what the sentence of the court was.
“The County Attorney: Q. You say your sentence was commuted to life? A. Yes, sir.”

It will be noticed that on his direct examination the defendant, in detailing the facts and circumstances surrounding the difficulty with the deceased which ended in this fatal stabbing, testified to the effect that he had a life sentence in the penitentiary, and had no way to get pardoned or paroled. It was certainly competent,. therefore, on the part of the state to cross-examine him upon any subject which he had detailed in his direct examination, and, having volunteered the statement that he was a life-termer in the penitentiary, it became competent for the state on cross-examination to inquire into the nature of the crime for which he had been previously convicted and sentenced. It has been repeatedly held by this court that such is a proper inquiry to affect the credibility of any witness, including a defendant. McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358; Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029.

But we believe it was also competent in this case to establish the status of the defendant as a prisoner in the penitentiary. If he was then serving a term of life imprisonment, it would be no punishment for him for the jury to assess another penalty of life imprisonment, or any other punishment less than death. Section 2319, Rev. Laws 1910, is as- follows:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

Section 5954, Id., provides:

“After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.”

It is apparent from the foregoing provisions of our statutes that the punishment for murder is either death or imprisonment in the state penitentiary at hard labor for life. Where the defendant stands trial, it is necessary for the jury to designate in the verdict, if that be one of guilty, what the punishment shall be, and the judgment of the court must be in accordance therewith. It is equally apparent that, if the defendant pleads guilty, the court must pass sentence, and may, before rendering judgment, examine into the circumstances surrounding the killing and inquire into any proper matter which tends either to aggravate or to mitigate the punishment that should be inflicted. The only necessity for the provisions of section 5954, supra, is that upon a plea of guilty ordinarily no testimony is heard, and therefore without such statute the court would be left wholly ignorant of the circumstances of the crime, while on the other hand, upon a trial, matters in aggravation or mitigation of the punishment may be properly developed. In Walburn v. Territory, 9 Okla. 23, in the body of the opinion at page 29, 59 Pac. 972, 974,-the territorial Supreme Court, speaking through Burford, C. J., said:

“Where the jury assesses the punishment on verdict of guilty, it is proper to admit evidence which goes only in mitigation or aggravation.”

Some states have gone so far as to pass statutes that the punishment shall be death where a person is convicted of murder with a life penalty in force against him. In the absence of such a statute, however, there can be no doubt that inquiry as to the status of a person imprisoned in the state penitentiary who commits murder while so imprisoned is a proper subject of inquiry by the jury upon a trial therefor, in order to determine what degree of punishment should be inflicted in the event said defendant is found guilty of such crime. Under the provisions of section 2319, supra, the jury was required to assess the punishment in this case. Therefore it ite the opinion of this court that there was no error committed by the trial court in permitting the defendant to be cross-examined as to his former conviction of murder: (1) Because it was proper to affect his credibility as a witness; (2) because it was a matter about which he had voluntarily testified in his examination in chief; (3) because the status of the defendant as a prisoner in the state penitentiary ■ was a proper subject-matter of inquiry in this case independent of the fact that he became a witness in his own behalf.

It is also contended that the court .permitted the county attorney to make certain prejudicial remarks in his closing argument. We have carefully examined the record with relation to these remarks, a great part of the closing argument of the county attorney being embodied in the case-made. The argument complained of related to the question of punishment to be inflicted, and the county attorney in effect argued that the defendant, having once been convicted of murder and given the death penalty, which was commuted to life, was a hardened criminal, that the fact that he was then serving a life sentence had not been a deterrent for the commission of this crime, and that if the death penalty were not inflicted his natural inclination to murder would probably assert itself in the future. We think these inferences were properly dedueible from the evidence in this case. This was a case either of murder or justifiable homicide, and the issue of fact having been decided by the jury against this defendant, we assume as true the evidence on the part of the state which disclosed a deliberate, willful, and premeditated homicide, and no intelligent or honest jury, under the circumstances disclosed by this record, would have been justified in returning a verdict assessing less than the most extreme penalty of the law.

This defendant is not unknown to this court. His criminal conduct already forms a part of the legal history of Oklahoma. See Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028; also Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. In the former case it was said of one of his previous crimes:

“Upon a careful examination of the record we find that the information sufficiently and correctly charges the crime of murder. The defendant had the benefit of counsel, and the record shows that said defendant made a voluntary written confession which details the facts of the murder of W. H. Archer, as charged in the information, wherein defendant states that after he and his codefend-ants robbed said Archer, he, the defendant, with a 44-caliber revolver, shot him. The record further shows that this defendant, being called as a witness on the trial of his codefendants, and being first duly sworn, testified that he held the revolver in his hand when it was discharged. On cross-examination he stated that he had been convicted of a felony and served a term of imprisonment in the penitentiary. * * * The record shows that the defendant, John Henry Prather, is guilty of a wanton and deliberate murder. It would seem that never was a murderer more guilty. All good citizens must acknowledge the justice of the penalty of the law in such a case. We are of opinion that the defendant, John Henry Prather, has been adjudged to suffer the just penalty of the law in the manner prescribed by law, and upon his trial the formalities of law essential to the taking of human life have been fully observed.”

It is also contended that the trial court erred in overruling the defendant’s motion for a new trial. Under this assignment it is contended that the verdict of the jury is not sustained by the evidence. There appears to be no merit in this contention. While the evidence is conflicting, we cannot sustain this contention. We do not’mean to say that the evidence demanded a finding of the particular facts which the jury found were true; but, in dealing with the question of whether or not’ there is sufficient evidence to support a verdict, we are constrained to treat as duly established all facts warranted by the testimony of the witnesses for the state, and. to give the prevailing side the benefit of every inference favorable to it which is fairly and legitimately deducible from those facts. This is the course heretofore pursued by this court. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Maggard v. State, 9 Okla. Cr. 236, 131 Pac. 549; Stephens v. State, 12 Okla. Cr. 90, 152 Pac. 138; Flowers v. State, 12 Okla. Cr. 320, 155 Pac. 904.

This is a capital case, and for that reason- the court has been painstaking, not only in examining the contentions of counsel for defendant, but also it has given the entire record a very careful perusal.- The instructions of the court were fair to the defendant, anil nowhere is it disclosed in the entire proceeding that any matter which affected the substantial rights of this defendant to his prejudice was permitted to occur. This defendant has twice faced a jury of his. peers for the taking of human life; the first time for the killing of a member of the white race, this time for the killing of a member of his own race. In both instances the verdict of the jury has been that he should suffer death. The mercy of the Governor in the first, instance had no effect to reform or restrain him, and although confined within the walls of the state’s prison, and under the eyes of the guards thereof, he was, by reason of his cunning, able to slay, his cell-mate as the latter returned from his day’s labor in the dusk of the evening, unsuspecting and unarmed.

The judgment of conviction, assessing the death penalty, is affirmed, and the warden of the state penitentiary at McAlester is hereby ordered and directed to carry into effect against this defendant the judgment and sentence of the district court of Pittsburg county that he suffer death; said penalty to be executed on the 3d day of May, 1918, in the manner provided by the laws of this state.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    A. C. BOSWELL v. STATE.
    No. A-3250.
    Opinion Filed March 4, 1918.
    (170 Pac. 1175.)
    APPEAL AND ERROR — Dismissal—Grounds. Where it appears that ■defendant is a fugitive from justice or has left the jurisdiction of the state and cannot be made to answer any judgment upon , the merits of his appeal which may be rendered by the Criminal Court of Appeals, the appeal will be summarily dismissed.

      Appeal from County Court, Oklahoma County; William H. Zwick, Judge.

      A. C. Boswell was convicted of a violation of the prohibition law, and he appeals.
    Appeal dismissed.

      Charles H. Ruth, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General has filed the following motion to dismiss the appeal against plaintiff in error, A. C. Boswell, in the above-entitled case:

“Comes S. P. Freeling, Attorney General for the State of Oklahoma, by R. McMillan, Assistant Attorney General, and moves the court to dismiss .the appeal in the above mentioned and styled cause, and as his reason for said dismissal he alleges he is informed, believes, and so charges that the said appellant, A. C. Boswell, is no longer a resident of this jurisdiction, and is not now amenable to any order or judgment of this court; and as an evidence of said fact he here files the affidavit of John Howard, as Exhibit A hereto, and the affidavit of C. H. Bessent, as Exhibit B hereto, and he makes both said Exhibits A and B a part of this motion as though both were fully herein copied and set forth. Wherefore he prays that notice be given to the attorneys of the said appellant, A. C. Boswell, and that the said cause be dismissed!”

The affidavits in support of said motion are as follows :

“State of Oklahoma, Oklahoma County — ss.:
“John Howard, of lawful age, being duly sworn, on hi's oath states that he has been and is now in the employ of C. H. Bessent, president of the Security State Bank of Norman, Okla., and has been for nearly a month last past in trying to locate A. C. Boswell, and that he has been unable to locate him in and around Oklahoma City, where, he, the said Boswell, has lived for several years last past; that he has talked with quite a number of parties who are well acquainted with the said Boswell, and has been informed by one of said parties who has acted as the attorney of said Boswell in certain litigation and was informed by said attorney that the said Boswell has left the country. Another party informed this affiant that the said Boswell . had left the State of Oklahoma, and still another party informed this affiant that he overheard parties talking who stated that the said Boswell, with two of his brothers, had gone from the United States into Mexico, and that the parties who went with him to Mexico in an automobile returned to the United States without him. This affiant further states that he has been informed that the sheriff of Canadian county, Okla., has in his hands a warrant for the arrest of the said Boswell for disposing of mortgaged property, and that said sheriff has been unable to locate him.
“Further affiant sayeth not.
“[Signed] John Howard.
“Subscribed and sworn to before me this 9th day of January, 1918.
“É. W. Rowe, Notary Public.
“My commission expires March 22, 1920.”

The affidavit of C. H. Bessent was to the same effect as that of John Howard.

A hearing was had upon said motion before the court on the 16th day of February, 1918, at which time no appearance was made for the defendant, and the evidence of John Howard and C. H. Bessent was heard in support of said motion. The effect of their testimony was that at the time said motion was heard the said A. C. Boswell was then and there a fugitive from justice from the State of Oklahoma, and his whereabouts were unknown, and said Boswell could not be found, although diligent search had been made for him within this state.

Under the repeated decisions of this court, when it is shown that the defendant is a fugitive from justice, or has left the jurisdiction of the State of Oklahoma, and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by this court, the. appeal will be summarily dismissed. Vann v. State, 10 Okla. Cr. 644, 133 Pac. 1197; Billingsley v. State, 9 Okla. Cr. 734, 132 Pac. 1192; Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548; Simerson v. State, 9 Okla. Cr. 119, 130 Pac. 1112; Tanner v. State, 5 Okla. Cr. 298, 114 Pac. 360; and many others.

It is apparent from the evidence introduced upon the hearing of this motion that plaintiff in error is a fugitive from justice from the State of OWahoma, and cannot be made to respond to any affirmative judgment which this court may render in this case.

The appeal of plaintiff in error therefore is dismissed.


text:
    F. A. BLANCK v. STATE.
    No. A-2668.
    Opinion Filed January 26, 1918.
    Rehearing Denied March 13, 1918.
    (169 Pac. 1130.)
    L APPEAL AND ERROR — Review—Brief and Argument. Only such alleged errors will be considered by this court as are supported in the brief of counsel for plaintiff in error by argument and the citation of authority. It is not sufficient for counsel merely to assert that error has been committed. The crowded condition of this docket precludes the court from searching the record for error or the books for authorities in support thereof.

      Z. CONSPIRACY — Concert—Evidence. . The least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy. Evidence examined, and held sufficient to support the theory that a conspiracy existed between appellant and one W. to unlawfully secure the signature of one T. C. to a check for the payment of money.
    3. TRIAL — Admission of Testimony of Conspirator — Question for Jury. Where the court permits a witness to testify relative to a transaction between himself and one W., an alleged coconspirator, subsequent to the commission of the offense for which defendant was being tried, and there is testimony to the effect that the defendant was present at the time this conversation took place, such testimony was sufficient to authorize the trial court to admit the evidence, although defendant denied he was present on said occasion. Disputed questions of fact are to be determined by the jury under proper instructions by the court.
    4. APPEAL AND ERROR — Harmlers Error — Admission or Exclusion of Evidence. The admission or exclusion of testimony which, in the light of subsequent developments during the trial, indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment.
    5. FALSE PRETENSES — Sufficiency of Information. Information examined, and held sufficient to allege the crime of false pretenses with sufficient definiteness and clearness.

      Appeal from District Court, Adair County; John H. Pitchford, Judge.

    F. A. Blanck was convicted of false pretenses, and sentenced to imprisonment in the state penitentiary for a term of two years, and he appeals.
    Judgment affirmed.

      W. L. Curtis and E. B. Arnold, for plaintiff in error.

      S. P. Freéling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

The plaintiff in error was convicted in the district court of Adair county of the crime of false pretenses, based upon substantially the following facts:

T. E. Wyly and this plaintiff in error were each engaged in the real estate business in the city of Stilwell, having their respective offices in adjoining buildings with a stairway common to both buildings ascending between the two. They were not partners, but frequently engaged in business deals together, dividing the profits.

Joanna Charles and Thompson Charles, being respectively the widow and father of John Charles, deceased, were the sole heirs to his allotment as a member of the Cherokee Tribe of Indians. Joanna and Thompson were each full-blood Cherokees, ■ and in order to obtain a sale of these inherited lands, it was necessary to obtain the approval of the county court of Adair county, in which county the said John Charles lived and died.

It appears that T. E. Wyly obtained information that John Charles was dead, and that Joanna and Thompson. Charles were his sole heirs. With this information • in hand, he undertook to procure the approval of the county court of Adair county to a sale of said lands, and agreed with the heirs to purchase the property for the sum of $800, attorney’s fees and court costs. He employed an attorney for this purpose and had started the proceedings about the time that this plaintiff in error, F. A. Blanck, learned of John Charles’ death and of the proposed sale of his lands. Blanck immediately approached Wyly about this matter, and Wyly agreed that, if he would give him the sum of $90, which equaled $1 per acre, and pay all the court costs and attorney’s fees occasioned by the sale, he would relinquish any bid he intended to make on the land and let Blanck buy it. Blanck represented at that time that he had a purchaser for the land, and it appears that Blanck was making a deal for one Green, who lived at Wann in Washington county, near where the land was located. Green appeared to be representing one J. W. Reese of that locality, who was to be the actual purchaser of the land. It appears that Reese was willing to give $18 an acre, or a total of $1,620, in full payment for the 90 acres of land.

It was the purpose of Blanck to buy this land in for $800, the price that the heirs had agreed to take if he could obtain the approval of the county court, to pay Wyly $90, and to pay all attorney’s fees and court costs, and to keep for himself, for putting through the deal, the balance that would be left out of $1,620, which he intended to obtain from Reese. However, this arrangement fell through. On the date that the land was advertised for sale, Reese attempted to get into communication with Blanck by long-distance telephone, but was unable to make the connection. He thereupon called upon the judge of the county court of Adair county, and asked him if it would be too late to put in a bid on this land, this being the day same was set for sale. The county judge informed him that it would not, and he thereupon informed the county judge that he desired to bid $1,620 for the land, and that he would wire the money immediately to the First National Bank of Stilwell to'the credit of the county judge, to be checked upon if he was the successful bidder in the sale.

Before the hour set for the sale, it appears that the plaintiff in error learned of the fact that Reese had wired this money to the county judge, and had placed a bid upon the land. This, of course, necessitated his making other arrangements with Wyly, and he immediately notified Wyly that the deal had fallen through, that Reese had “pulled a bonehead” by interposing, without his knowledge, the full amount that was intended should be paid for the land by notifying the county judge to that effect. Wyly, however, was not to be denied, nor was he discouraged, by the collapse of Blanck’s arrangements. He told Blanck that he believed, notwithstanding the fact that his deal had fallen through, that he could get the heirs to pay a commission if Blanck would agree to let him use Reese’s bid for that purpose. This Blanck agreed to do, and, according to the state’s case, Wyly by representing to the heirs that the sale could not be completed unless the heirs each paid him a commission of $300 for the sale; that the sale would be stopped and they would get no money. By this means, he procured a check from each of them for $300, payable to himself, drawn on the First National Bank of Stilwell. This was all done prior to the hour of the sale, but on the date of the sale, and without the knowledge of the county judge or the probate attorney of that district. - The sale was subsequently approved,' and the land sold to Reese for the bid of $1,620, which was apparently a fair value for the land, but not the total appraised value thereof, which included some $225 of value for oil and gas purposes. However, the county judge approved the sale for this amount, and the probate attorney, after investigation, agreed that the sale ought to be confirmed.

Wyly and Blanck placed these $300 checks in possession of the First National Bank of Stilwell, and as soon as the heirs brought in their checks of $810 each, being half of the price paid for the land, to said bank, they obtained the payment of the $300 checks, and Wyly and Blanck divided the money $300 each.

Separate trials were had, and Wyly had been convicted some time prior to this trial in which Blanck was convicted. Numerous assignments of error are set forth .in the brief of counsel for plaintiff in error, but we deem it unnecessary to discuss at length each and every of these assignments.

Some of said assignments are supported by neither argument nor authority. Counsel for plaintiff in error assert error, but fail to put their finger on the place that hurts, or show that the plaintiff in error was injured by what is alleged to be error. This court has repeatedly held that briefs of counsel for plaintiff in error must not only assert that error was committed, but must specifically point out the error and support same by argument and authority. The crowded condition of this docket precludes the court from searching the record for error, or the books for authorities in support thereof.

Among other things, it is urgently argued that the evidence is insufficient to support the conviction. While the evidence of the existence of a conspiracy between T. E. Wyly and the plaintiff in error, F. A. Blanck, to defraud Joanna and Thompson Charles is not as explicit and as conclusive as in some cases heretofore before this court, yet we deem same sufficient. The plaintiff in error admits that he agreed with Wyly that they should endeavor to get a commission out of these Indians for the sale of the land, and this was done after they both knew that the bid of J. W. Reese of $1,620 for said land was in the possession of the court. Their effort to secure a commission was wrongful, and- a charge unauthorized by law, as they both well knew, and the fact that Blanck agreed that Wyly should secure said commission with the knowledge that the same was wrongful and unsupported in law as against these full-blood Indians, and his subsequent participation in the proceeds of such an act, were, in the opinion of this court, an authorization for Wyly to procure said checks in the manner in which he did, and showed clearly a collusion between the two sufficient to sustain and support the theory that a conspiracy existed.- Blanck knew that Wyly could not, except by false and fraudulent representations, obtain a commission from said Indians. The entire scheme was conceived in iniquity.. This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy. Holmes v. State, 6 Okla. Cr. 542, 119 Pac. 430, 120 Pac. 300; Ex parte Hayes, 6 Okla. Cr. 321, 118 Pac. 609; Wishard v. State, 5 Okla. Cr. 611, 115 Pac. 796; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657; Stockton v. State, 5 Okla. Cr. 310, 114 Pac. 626; 2 Rice on Evidence, 866, sec. 333; 1 Greenleaf on Evidence (13th Ed.) sec. 111; Starr v. State, 5 Okla. Cr. 460, 115 Pac. 356.

It is also contended that the court erred in permitting Joanna Charles and Thompson Charles to testify in detail to statements made to them by T. E. Wyly, it having been first shown that each was a full-blood Cherokee Indian and spoke only the Cherokee language, and that the conversation with the said Wyly was through an interpreter at the time of the execution of the checks, when it is claimed that the false pretenses were made upon which this conviction ife based, without showing that the interpreter was dead or absent from the county.

We deem this assignment without merit. In the case of Terrapin v. Barker, 26 Okla. 93, 109 Pac. 931, the Supreme Court of this state, where the same question was raised, held:

“When two persons, speaking a different language, neither of whom is able to understand the language of the other, voluntarily use a third person, who. uses the language of both to interpret between them their conversations relative to a business transaction, the interpreter is to be regarded as the agent of each to translate and communicate what he says to the other, and admissions or statements made by one to the other through the interpreter are not hearsay, and the party to whom they are made may testify to them.”

Said opinion is fully supported by argument and numerous authorities, and the rule there adopted as to civil cases is equally applicable in criminal.

It is also contended that the .court erred in permitting the witness Thompson Charles to testify relative to a transaction which is alleged to have occurred between him and T. E. Wyly subsequent to the preliminary trial in this case without first showing that the defendant, F. A. Blanck, was in some way connected with, or responsible for, said conversation, or was present at the time it was made. It is admitted that, concerning the transaction referred to, Thompson Charles, one of the prosecuting witnesses, was brought to T. E. Wyly’s office from his home in the country in the conveyance that belonged to F. A. Blanck, and the record shows that the witness Thompson Charles on cross-examination testified that F. A. Blanck was present in Wyly’s office on the occasion that the transaction complained about took place. This testimony was sufficient to authorize the court to admit the evidence. Blanck denied he was present on said occasion, and other witnesses said they did not remember whether he was present or not. It was solely a question of fact for the jury to determine whether or not he was present.

It is also contended that the court erred in refusing to permit the counsel for plaintiff iln error to cross-examine the state’s witness, T. E. Wyly, with reference to whether or not there was any agreement or common understanding between said witness and the plaintiff in error on the day of the sale or prior thereto, to secure the execution of the check upon which this prosecution is based, by false or fraudulent representations to the prosecuting witness, Thompson Charles. We are of the opinion that the court’s ruling in this respect was erroneous, but whatever error was committed was cured by plaintiff in error’s own act in placing said T. E. Wyly upon the witness stand in his own behalf; said Wyly testifying fully and favorably to the plaintiff in error in respect to said matter. In Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941, this court held:

“The admission or exclusion of testimony which, in the light of subsequent developments during the trial, indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment.”

It is also contended that the information in this case is insufficient. We have carefully examined same, and have reached the conclusion that all averments necessary to make out the crime of false pretenses are contained therein with sufficient definiteness and clearness to indicate to the defendant the crime with which he was charged. There was an alleged false representation by the defendant of an existing fact, with knowledge of its falsity, and alleged reliance thereon by the person defrauded, by means of which it is alleged that the signature to the check, setting out the same, was obtained. This was sufficient under the statutes.

It is also contended that the court erred in refusing to give certain requested instructions, and in gMng certain instructions on his own .motion. After a thorough examination of the instructions requested, and those given, we are of the opinion that the court fully covered the law in this case in the instructions given, and that the same were as favorable to the defendant as his testimony would warrant.

We find no substantial error in this record. Th§ judgment is therefore accordingly affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.