text:
    W. A. DOUGLAS v. STATE.
    No. A-3735.
    Opinion Filed July 20, 1921.
    (199 Pac. 927.)
    (Syllabus.)
    1. Rape — Evidence Supporting Conviction. In a prosecution for rape in the first degree, evidence reviewed, and held insufficient to support the verdict and judgment of conviction.
    2. Rape — Insufficiency of Uncorroborated Evidence of Prosecutrix. Under the laws of this state, conviction for rape may be had upon the uncorroborated evidence of the prosecutrix; but where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and the defendant testifies, and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prose-cutrix, standing alone, is not sufficient to warrant a conviction.
    3. Witnesses — Impeachment—Contradictory Statements out of Court. In a prosecution for rape, the credibility of the prosecutrix may be impeached by proof that she has made statements relevant to the issues, out of court, contrary to what she has testified to on the trial,
    4. Same — Contradictory Statements in Writing. Where a witness has made statements in writing, different from those made on the trial, and the statements are shown the witness, who admits having made them, and witness is given an opportunity to explain them, they may be read in evidence for the purpose of impeachment.
    5. Evidence — Self-Serving Acts and Declarations, not part of Res Gestae, Inadmissible — Not Incumbent on Defendant to Show Some Other Person Guilty. A defendant cannot introduce evidence of his own self-serving acts and declarations, not constituting a part of the res gestae, and is not bound to make an effort to show that some other person is guilty of the crime for which he stands charged, at the peril of furnishing by his failure to act or by his silence, evidence against himself when on trial upon the charge, and the admission of such evidence over his objection constitutes error.
    6. Witnesses — Appeal and Error — interrogation of Witnesses by Trial Judge — Abuse of Discretion. While it is the right of a trial judge to interrogate witnesses, when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged, and when it appears that there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the case, which was prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.
    Appeal from District Court, Seminole County; Geo. C. Crump, Judge.
    W. A. Douglas was convicted of rape in the first degree, and he appeals.
    Reversed.
    Fowler & Wilson and Wm. A. Collier, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for rape in the first degree and sentence in accordance with the verdict of the jury for the term of 15 years in the penitentiary. The information charges that in Seminole county, on or about the 1st day of October, 1910, the defendant, W. A. Douglas, accomplished an act of sexual intercourse with one Jessie McKinley, a female under the age of 14 years and not the wife of the said defendant!

The errors assigned are substantially as follows: That the verdict of the jury was contrary to the law and to the evidence; that the court erred in the admission and rejection of certain evidence, and in refusing to give certain instructions.

The Attorney General in his brief states:

“That the evidence is not sufficient to uphold the verdict of the jury and the judgment of the court.”
The state relied for this conviction upon the testimony of Jessie McKinley, who testified as follows-.
“I live with Mr. Charles G. Putney, superintendent of the Home near Oklahoma City. I have been in his charge for about 4 years. My mother is dead. I don’t know whether my father is or not. I came to live in Seminole county with the defendant the 20th day of September, 1918. He came and got me to be one of his family. ¥e got off the train at Shawnee and then drove in a wagon to his house. My age is 13 years from April 20, 1918. I started to school on the 4th day of December, and I quit the latter part of April, 1919. I was pregnant at that time. The next week after I went to his house, it was on Friday, the defendant had sexual intercourse with me and he had sexual intercourse once and sometimes twice a week until December 4, 1918; that was the last time. My baby was born on the 23d day of June, 1919, and W. A. Douglas is the father of my child. I am not his wife. He told me his age was 55, the 4th day of April, 1919.”

On cross-examination she testified:

“I lived in a covered wagon with my father after mother died. He traveled from place to place and bought junk. I ran off from my father, because he did not treat me right, and the court at Oklahoma City placed me with Mr. Put-ney. I stayed there about 6 months, then stayed with my aunt in Oklahoma City 6 months, and then went back to Mr. Putney’s. I stayed there about a week, and went to the home of Mr. Bryan Gosby, at Norman, and stayed there about 3 weeks; then he took me back to Mr. Putney’s. I stayed there about 3 weeks; then I went to the Tutch sisters near Yukon. I stayed with them a month to a day. Mr. Putney came after me. About two weeks later Mr. Hursehburger came to the Home and picked me out and took me to Skedee. I stayed there a little over a month, and he took me back to Mr. Putney’s. Next I went to my uncle’s in Oklahoma City, stayed there a month and a half, and re-, turned to Mr. Putney’s. On January 6th, I went to Mr. Ben Bennett’s; he was a married man, 60 years old, with a wife and 13 children. I stayed until late in May. I had sexual intercourse with Mr. Bennett only once while I was there. From there I went to my aunt’s, and then to Mr. Putney’s; then I went to Mrs. Lynch’s Orphan Home on Main street, Oklahoma City. I stayed a little over a month; then Mr. Landreth took me to Centrahoma. I stayed there about a month, and he brought me back to my aunt’s. I did not have intercourse with any one while I was there. It was after I was with Mr. Douglas that I said Mr. Landreth had had intercourse with me.
“By the Court: Why did you make it? Because W. A. Douglas threatened me. What did he say to you? ‘Now Jessie, I want to tell you one thing: If you say I was the one that had intercourse with you, I will kill you.’ And his wife said, ‘Yes; I will, too.’ I did not say anything about Mr. Douglas threatening me when I testified at the first trial. I did testify that I told Mr. Putney the first time Mr. Lan-dreth had intercourse with me, because I did not like Mr. Landreth, and he treated me mean; that is what I testified, but it was not so. When they took me to Seminole, I told them that Mr. Landreth was the cause of my condition. I did not make any affidavit there.
“By the Court: Did you sign any paper with writing on it? A. Yes, sir; I did. They asked me, and I said Ben Bennett, Mr. Landreth, and Ed Hawkins were the only persons who had ever had intercourse with me; then we went to We-woka, to the county attorney’s office, and I made an affidavit there. I did not accuse Mr. Douglas at that time. I was there 3 days; then they sent me to the Home of Redeeming Love at Oklahoma City. While there I wrote five or six letters to Mr. Douglas. (Here witness identifies said letters.) I call my aunt, Mrs. Mosley, who lives in Oklahoma City, Aunt Lottie. I talked to her when I returned, and told her that Mr. Landreth was the cause of my condition. Mr. Douglas treated me well while I was there, and he got the things I wanted; but he whipped me two or three times for being late coming from school, and I wanted to go to town sometimes, and he would not let me go to town. I didn’t like that. At the preliminary examination on the 30th of July, I was asked to state my age, and my answer was 14 years the 20th day of April. I did not say 14 the 20th of last September. Ed Hawkins lived a quarter of a mile from Mr. Douglas. His age was 14 years. It was about a month after I went there before I met him. I did not tell Mrs. Douglas, 2 or 3 days after I got there, that I met Ed Hawkins down at the mail box and he insulted me. It was about a month after I got there before that happened. At that time Ed Hawkins asked me to let him have intercourse with me. I did have intercourse with Ed Hawkins. Mr. Douglas objected to my going with Ed Hawkins. It was in January that Ed Hawkins had intercourse with me; I mean the last of February. I was not with Ed Hawkins about a week after I went to Mr. Douglas’ house in the woods. I know Mr. Butherford, and I did not see him ride by that pecan thicket. I was not there with Ed Hawkins. I often came part of the way home from school with Ed Hawkins. I am positive that it was the next Friday after I got there that Mr. Douglas had intercourse with me. It was in the barn in the hay mow, and the next time was about a week later. The last time was the 4th of December, in the afternoon, in my room. Mrs. Douglas was at Mrs. Hulsey’s. I was there a month when Mrs. Douglas gave me Wine of ■Cardui, and I took a tablespoon of worm medicine; it was called /Male Fern. ’ Mr. Douglas never talked to me about my being with baby, and I never told him my monthlies had stopped. Mr. Douglas came twice to the Orphans’ Home to see me, and he talked about this case. He said would not he papa any more after we went to court, and he told me to write to him and Mrs. Douglas, giving all the news.
“By the Court: Jessie, you say Mr. Douglas was good to you while there? A. Yes, sir; one way he was, and one way he was not. Q. Are you mad at Mr. Douglas? A. Yes, .•sir. Q. Why? A. The way he treated me. Q. Do you know what will become of you if you swear a story? A. Yes; I would go to the Beform School. Q. If you swear a story on this man, you know it would put him in the penitentiary? A. Yes, sir. Q. Do you think he ought to be? A. I think he ought to be. I think he treated me mean enough to be. ■Q. Do you want him to go to the penitentiary? A. Yes, sir. “Q. Why do you want him to go to the penitentiary? A. Because he treated me like he did. Q. He was good to you •every way? A. He was good to me, except to go to town. I was not at town but three times all the time I was at his place. Q. And if you would tell a story on Mr. Douglas, don’t you know that would be awful wrong? A. Yes, sir.. Q. Do you believe in a spirit being? Do you believe in God?' A. Yes, sir; I do. Q. Do you believe he would ever forgive you if you told a story on Mr. Douglas? A. No, sir; he would, not. I don’t believe he would if I told a story.”

Bert F. Meyers testified:

"I was teaching school last winter at what is commonly-called Jarvis Township school. Jessie McKinley attended said school, which commenced on the first Wednesday in. December, 1918. Ed Hawkins also attended said school.”

George W. Douglas testified:

"I am not related to the defendant. I am a member of the school board of Jarvis school. Last spring I heard of the condition of Jessie McKinley, and with Mr. Wright and' Mr. Huff went to the county attorney and asked for an investigation of the matter.
"By the Court: Was it very noticeable that she was pregnant? A. Yes, sir. Q. Did Mr. Douglas take steps to have an investigation himself, or did you have it made? A. Us three made the investigation. Q. He took no steps to have the matter investigated? A. Not to my knowledge.”

On cross-examination he stated:

"I am not very friendly towards Mr. Douglas, and Mr. Huff lacks a whole lot of being friendly with him. Ed Hawkins is a stepson of Mr. Huff.”

A. F. Polk testified:

"I am deputy sheriff. About the 1st of May the county attorney directed me to go and get the defendant and the-little girl and bring them to town. I found the defendant, plowing corn, and told him what I came there for. He said, the little girl was gone to school up to the Jarvis schoolhouse, about two miles and a half, and I will take the team and go and get her. I says: ‘No; we will go up there by the schoolhouse for her, and all go into town.’ We went by the schoolhouse and got the girl. Mr. Deheart rode with me in the front seat, and the girl and Mr. Douglas in the back seat. They were talking, but I did not hear Mr. Douglas tell her to lay this on Mr. Landreth. The girl denied that she was pregnant, and we had Dr. Turlington examine her. The defendant stated that he did not know that she was pregnant. * ’
On cross-examination he stated:
“I was present when she admitted being pregnant.”

He was then asked:

‘ ‘ Q. Did yon hear her saj/at that time who was the cause •of her being in that condition?
“By the Court: “That would be hearsay. You can ask her if she denies it; then prove she said it.”

The state rested, and the defendant moved the court to -direct a verdict of acquittal, for the reason that the testimony of the prosecutrix is contradictory, uncorroborated, and insufficient upon which to base a conviction, which motion was overruled and exception taken.

For the defendant, J. H. Landreth testified:

“I live at Centrahoma. My age is 65 last March. I be-came acquainted with Jessie McKinley about the 4th of June last year, at which time Mr. Putney went with me to her aunt’s and I took her home with me. On the 8th day of August, a year ago, I took her back to her aunt’s.”

He was then asked:

“Q. After you returned her to Mr. Putney, was any charge filed against you? (The state’s objection sustained). Q. Well, state whether or not you was arrested on any chargte 1 A. Yes, sir* (Same .objection. Sustained, and* answer stricken.)”

Jack Rutherford testified:

“I live near the Jarvis sehoolhouse. I know about the time Jessie McKinley came to live in the defendant’s home. About a week later I was riding by the defendant’s place, and saw Jessie McKinley and Ed Hawkins west of the defendant’s house, near the line between the land and Tom Bruner’s. They were standing near the fence row, among some pecan trees. It was in September, and about the middle of the afternoon.”

Three or four witnesses, including her school-teacher,, testified that they knew the reputation of prosecutrix for truth and veracity in that community, and that it was bad. Seven or eight witnesses testified that they knew the defendant’s reputation in that community for the past six years as-•to being a moral, upright, law-abiding citizen, and that it. was good.

Dr. Harrison testified that he was state health officer of Seminole county, that “Male Fern’’ is a vermifuge; that. Wine of Cardui is known as female tonic, and is not used as abortion medicine.

Dr. M. M. Tarleton testified:

“I have held the position of county superintendent of health. The 2d day of May this year I examined Jessie McKinley and found that she was pregnant. At that time I had a conversation with her.”

He was then asked to state what she said as to her condition. The court sustained the state’s objection. The defendant offered to prove by the witness that Jessie McKinley stated to him that either Ed Hawkins or Tom Landreth was. the cause of her pregnancy.

Mrs. Alice Douglas testified:

“I am the wife of defendant. Jessie McKinley was brought to our house by my husband on the 20th day of September, 1918, and remained there until the 1st day of May, 1919. During that time I took her with me among th,e neighbors, and to church and to Sunday school. My husband treated her just the same as he would his own child. Ho corrected her a few times. I didn’t know that she was pregnant until after they took her away. About the 20th of October her clothes showed that she had menstruated. She did not in November. At that time I gave her some Wine of Cardui. I thought she needed it. In March I gave her two doses of Male Fern for worm medicine.”

A. C. Nichols testified:

“In 1919 I was county attorney of this county. About May 2d Jessie McKinley was at my office in Wewoka. I prepared and she signed an affidavit. The original I mailed to the county attorney at Coalgate. I have a carbon copy in the same condition it was when she signed it.”

The copy was offered in evidence, and on the state’s objection rejected. Among others it contained the following statements:

“On the 6th day of January, 1918, I went to the home of Ben Bennett; stayed there until about 10th of the following •June. Just before I left Mr. Bennett had sexual intercourse with me three times. I went to Jim Landreth’s home about the middle of September. He had intercourse with me along .about the 12th or 18th of September, and agáin a few days later. I am now in a family way, and know that Jim Lan-dreth is the one who got me in this condition, for he is the last man that ever had sexual intercourse with me. ’ ’

As a witness in his own behalf the defendant testified:

“I went to Oklahoma City, and I got Jessie McKinley from Mr. Putney and her aunt. She remained at my home until the 1st day of May, when Mr. Polk came out and told me he had come to bring me and the girl to town, with directions not to allow us to talk to one another. We went to town with him, and I didn’t see her any more until after the investigation. Then Mr. Polk took us back to my home, and she got her clothes and went away with him in the car. I did not see her again until the middle of May. She wrote .a letter saying she would like to see me and Mrs. Douglas. The matron was present while I talked to her. The second or third week after I brought her home she complained to me that Ed Hawkins had insulted her. I told,her that Ed Hawkins was a very bad boy, and forbade her to associate with 'him, and I would take her back to Oklahoma City if she did.”

In response to questions by the court he stated, that his information was that Ed Hawkins is now in the Reform. School at Granite, having been convicted in Grady county of burglary. He further testified:

“I did not have sexual intercourse with her on that Friday or at any of the times testified to by her. I never had sexual intercourse with her. I went to Shawnee on that Friday, leaving home about 10 o’clock, and left Shawnee about 5 o’clock, arriving home about dark. I paid for a bill of lumber, and here is the receipt. (Witness produced bill for lumber, signed: 'Received payment September 27, 1918. Taylor Lumber- Co., per W. B. Taylor.’) I treated Jessie McKinley in every particular as a father should have done. I punished her once for being impudent to Mrs. Douglas, and twice for being very late coming home from school and telling stories about it. I don’t know anything about the medicine she took. I thought my wife ought to know what was necessary. I did not know that she was pregnant until they told me at Seminole on May 1st.”

The defendant again offered in evidence a letter received from prosecutrix, dated Oklahoma City, May 12th, containing statement:

"I would like to see you and papa too.”

Also letter, dated Oklahoma City, May 27, 1919, in part as follows:

"Dear Mama: Papa was out here to-day and I was glad to see him. I would have been gladder to see you. Well,, I told Papa that it was Edward Hawkins that did me that way; he did not do me that way at all. I did not hardly know what to say when I left there. Aunt Lottie told me to say it was you; but I know it was not you that did me. that way.”

The state’s objections were sustained.

In rebuttal the state offered the testimony of Mrs. Anna Buck, formerly Mrs. Lynch, who testified that at the time that Jessie McKinley was taken by the defendant she told him that Jessie McKinley had come into womanhood.

Upon an examination of the record we reach the conclusion that the judgment of the trial court should be reversed. There can be no doubt that the defendant was prejudiced by the trial court’s examination of the prosecutrix, ;and that such examination constituted an abuse of discretion by the trial court, and was in effect a comment on the weight <of the evidence. In Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236, this court said:

“While it is the right of a trial judge to interrogate witnesses, when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged, and when it appears that there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the ease, which was prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.”

The questions propounded by the court to the witness 'George W. Douglas were also improper, and the answers .thereto incompetent. In Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, this court said:

“A defendant cannot introduce evidence of his own self-serving acts and declarations not constituting a part of the res gestae, and he is not bound to make an effort to show that some other person is guilty of the crime for which he stands charged, at the peril of furnishing, by his failure to .act or by his silence, evidence against himself when on trial upon the charge, and the admission of such evidence over his ■objection, constitutes reversible error.”

We also think that the court erred in refusing to admit in evidence the affidavit made by the prosecutrix in the office of the county attorney. The affidavit was offered by the de-iendant to discredit the witness, and, being proper for such purpose, it should have been admitted. The court also erred in refusing to admit in evidence the letters written by the prosecutrix to the defendant and his wife. The general rule is that, where a witness has made statements in writing different from those made on the trial, and the statements are shown the witness, who admits having made them, they may be read in evidence for the purpose of impeachment.- The credibility of the prosecutrix may be impeached by proof that she has made statements relevant to the issues out of court, contrary to what she has testified to on the trial, and the court erred in rejecting the offered évidence as to what the prosecutrix stated- to Dr. Tarleton. 1 Greenleaf Ev„ (16th Ed.) par. 461.

■ It is also urged that the evidence is insufficient to sustain the verdict. In our opinion the Attorney General properly concedes the evidence to be insufficient. The testimony of the prosecutrix being so conflicting, when taken into consideration with her other admittedly false statements, and considering all the evidence in the case, we think this court is warranted in assuming that the jury must have rendered their verdict under the influence of passion and prejudice. Under the laws of this state a conviction for rape may be had upon the uncorroborated evidence of the prosecutrix, however, where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is. not sufficient to warrant a conviction.

For the reasons stated, and because the evidence is insufficient to warrant a conviction, the judgment of the trial court is reversed, and the defendant discharged.

MATSON and.BESSEY, JJ., coneur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    ED SHERMAN v. STATE.
    No.A-3592.
    Opinion Filed July 23, 1921.
    (200 Pac. 262.)
    (Syllabus.)
    1 _ Indictment and Information — Series of Acts Charged in Single Count. Where a statute enumerates a series of acts, either of which or all together constitute the offense, all such acts may be charged in a single count in the conjunctive.
    2. Trial — Instructions Considered as a Whole. Instructions must be considered as a whole. No single instruction will be considered misleading or confusing, where its meaning is made clear by subsequent instructions.
    3. Receiving Stolen Goods — Imprisonment for Three Years not Excessive. Imprisonment for three years in the penitentiary is not an excessive punishment for receiving stolen property, where there is no showing that the verdict was the result of passion or prejudice.
    4. New Trial — On Ground that Defendant Did not Plead — TEffect of Waiver of Arraignment. Where the record discloses that defendant waived arraignment, demurred to the information, announced ready for trial, participated in the selection of the jury, that the county attorney in stating the case announced that defendant had pleaded not guilty, and the court in charging the jury announced defendant’s plea as not guilty, and the trial was conducted in all respects as if a plea of not guilty had been entered, it is too late after verdict to interpose as ground for a new trial that no plea had been entered to the information.
    Appeal from District Court, Canadian County; Geo. "W. Clark, Judge.
    Ed Sherman was convicted of the crime of receiving stolen property, and he appeals.
    Affirmed.
    R. B. Forrest, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

Plaintiff in error, Ed Sherman, hereinafter referred to as defendant, was informed against and convicted in the district court of Canadian county of receiving stolen, property, and his punishment assessed at imprisonment in the state penitentiary for three years.

It is first contended that the information is dnplieitons, in that defendant is both charged with buying and receiving stolen property, which constitute two separate and distinct offenses, and that the court therefore erred in overruling defendant’s demurrer to the information on this ground.

Section 2664, Revised Laws 1910, defines the offense as follows:

“Any person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, in the county jail not exceeding six months, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.”

The demurrer was properly overruled. The statute defines but one offense, and enumerates disjunctively the acts which, either committed separately or together, constitute the offense. The rule is well established that where a statute enumerates a series of acts, either of which or all together may constitute the offense, all such acts may be charged in a single count, since, though each by itself may constitute the offense, all together do no more and constitute but one and the same offense, and the indictment or information, if it charges more than one of such acts, which it may do and that in the same count should do so in the conjunctive. State v. Pirkey, 22 S. D. 550, 118 N. W. 1042, 18 Ann. Cas. 192; People v. Swaile, 12 Cal. App. 192, 107 Pac. 134; 22 Cyc. 380; Bishop’s Statutory Crimes § 244.

It is also contended that the court erred in giving instruction No. 1. This instruction is merely a copy of the charging part of the information, and is followed by instructions Nos. 2, 3, and 4, which, in effect, tell the jury that defendant has pleaded not guilty to the charge and that defendant is presumed to be innocent, and that the burden is upon the state to prove every material charge in the information beyond a reasonable doubt before defendant can be convicted. It is contended that because the court, in reading the charging part of the information, read to the jury, “that the said defendant then and there well knew that said property had been recently stolen,” this amounted to a comment upon the weight of the evidence, and for that reason was erroneous.

We consider this assignment of error extremely technical, as it is clear that the jury could not have been misled by anything contained in instruction No. 1, when considered in connection with the other instructions given concerning the presumption of innocence and the burden upon the state to prove defendant’s guilt of every material allegation in the information beyond a reasonable doubt. It is clear also from instruction No. 1 that the court was merely reading to the jury the charge as contained in the information.

Instruction No. 6 is complained of because the words “bought or received” are used in said instruction. We see no error in this instruction. The information alleged that defendant both bought and received stolen property, knowing same to have been stolen. A conviction was authorized upon proof that he either bought stolen property, knowing it to have been stolen, or received stolen property, knowing it to have been stolen, or that he both bought and received under such circumstances; that statute defining but one offense.

The punishment imposed was imprisonment for a period of three years, and it is contended that because of the severity of the punishment the verdict was a result of passion and prejudice on the part of the jury. The maximum punishment permitted under the statute is five years’ imprisonment in the state penitentiary. Had the jury been prejudiced against defendant, it is difficult to understand how a verdict assessing less than the maximum punishment resulted from the trial. The punishment is such as is provided by the law, and is within the limits fixed by law, and there is nothing in the records that convinces this court that the verdict is the result of passion and prejudice upon the part of the jury. The circumstances under which defendant bought this property, the property bought being a set of harness which had been previously stolen by a man much younger than defendant, clearly indicate, and the jury was authorized to conclude, that the. purchase of same by defendant was made with knowledge that the property had been previously stolen. We think the evidence was sufficient to sustain the conviction under the rule announced by this court in case of Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, and that the punishment imposed is not excessive when considered in connection with all the evidence of defendant’s guilt.

Lastly it is contended that the record does not disclose that defendant was ever arraigned to the amended information, or ever entered his plea thereto. The record clearly discloses that defendant announced ready for trial, and that the trial (proceeded in all respects as if a plea of not guilty had been entered, without any objection having been made, either before the trial commenced or before verdict was returned, that a plea had not been entered. The record discloses that defendant waived the arraignment, demurred both to the original and amended information, and announced ready for trial; that the county attorney, in stating the case to the jury, announced that defendant had pleaded not guilty, and that the court in charging the jury announced defendant’s plea as not guilty; that defendant participated in the selection of the jury; and that the trial was conducted in all respects as if a plea of not guilty had been entered. We deem this a sufficient showing that a plea of not guilty was entered to the information. Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261.

Finding the record free from reversible error, the judgment'is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    Ex parte JACK PARNELL.
    No. A-4000.
    Opinion Filed July 25, 1921.
    (200 Pac. 456.)
    (Syllabus.)
    1. Infants — -Liability for Crime — Exclusive Jurisdiction of Juvenile Court. The act of March 24, 1909, creating the juvenile court and prescribing the jurisdiction thereof, places the jurisdiction to inquire into the matter of the probable guilt and capacity of a juvenile offender to commit crime under the sole original jurisdiction of the county court. In such a case a justice of the peace has no jurisdiction to hold a preliminary hearing, and the district court has no jurisdiction to proceed against a child charged with a felony until after the juvenile court has affirmatively found that the child was in fact capable of committing the crime charged, and that there was probable cause to believe him guilty.
    2. Same — Responsibility of Infant’s Under Sixteen. A child under the age of sixteen years cannot be guilty of the commission of a crime, except in cases wherein it is shown that the child knew the wrongfulness of his acts at the time they were committed.
    3. Habeas Corpus — Record of Jurisdictional Facts — Courts/—Juvenile Courts. Where a court of record and of- general jurisdiction exercises special or limited powers derived from statutes, and not in the exercise of general jurisdiction according to the common law, as provided in our juvenile statutes, the jurisdictional facts should appear in the record, and will not be presumed by this court in a proceeding in habeas corpus, attacking the jurisdiction of the court. A want of jurisdiction, under such circumstances, may be shown by evidence outside the record.
    4. Same — Presumptions—Finding as to Age of Juvenile Ofrenden. If the record in a felony case in the district court fails to affirmatively disclose that an issue of fact was tried and determined, finding that the offender was over the age of sixteen years, that issue remains open for this court to determine in a habeas corpus proceeding. Whatever presumptions there may have been that the district court had jurisdiction are, under such circumstances, rebuttable presumptions.
    5. Same. The presumption of jurisdiction, if any, in the absence of jurisdictional recitals in the record that the district court had jurisdiction of the person and of the offense in a felony case, may be overcome by another presumption that a person under the age of sixteen is incapable of committing crime. If the offender was indeed under the age of sixteen years the district court had no original jurisdiction of his person or of the offense, and cannot acquire jurisdiction over such juvenile offender by any fiction of presumption, waiver, or estoppel.
    6. Infants — Criminal Liability — Jurisdiction—Waiver by Juvenile. A juvenile offender is incapable, by waiver or consent, to transfer the jurisdiction of his person and the offense with which he is charged from the juvenile court to the district court.
    Jack Parnell is confined in the State Penitentiary at Granite, Okla., under sentence of the District Court of Comanche County, and by his mother, Betty Parnell, he petitions for a writ of habeas corpus.
    Writ allowed.
    C. R. Reeves, for the petitioner.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The nominal petitioner in this case, Betty Parnell, the mother of Jack Parnell, hereinafter referred to as the defendant, charges that Jack Parnell, defendant, is illegally restrained of his liberty in the state penitentiary at Granite, pursuant to a commitment issued on a void judgment and conviction for the crime of larceny, rendered in the district court of Comanche county on the 17th day of February, 1921, in which the defendant was sentenced to the state penitentiary at Granite for a term of two years.

The petitioner urges that said judgment is void and of no legal effect for the reason that the defendant was on said date under the age of sixteen years, and that prior to that time he did not have a hearing and investigation in the county court, sitting as a juvenile court, as provided by law; and that the district court rendered said judgment with no jurisdiction of the person of the defendant and with no authority to impose a judgment of sentence and conviction against him, directing imprisonment in the state penitentiary at Granite.

The record discloses that on February 17, 1921, complaint was made before a justice of the peace in Comanche county, charging the defendant jointly with two others with the larceny of an automobile of the value of two hundred dollars. On the day following, an information was filed in the district court against the defendant and the two others, charging the same offense. On the same day the defendant and the others jointly charged with him were taken before M. T. Perkins, justice of the peace in Comanche county, and each was formally arraigned, and each waived a preliminary trial. Upon the failure of the defendant to make bond, as fixed by the justice, the defendant was committed to the sheriff of Comanche county, who on the same day took him before the district court of Comanche county, where in open court he pleaded guilty to the information, and upon his plea of guilty the district court rendered and entered the judgment of which complaint is made.

The judgment record is as follows:

“Now on this 18th day of February, 1921, being one of the regular judicial days of the January, 1921, term of said district court,, the above named defendant, Jack Parnell, appeared and is present in person before the bar of said court for arraignment upon the charge contained in the information in said cause, and thereupon said information was read to said defendant, Jack Parnell, and he was asked by the court whether he is guilty or not of the crime charged in said information.
“Thereupon the said defendant is asked whether or not he has any just cause to show why judgment and sentence for J the crime should not be pronounced against him and the defendant failing to show any just cause the court accepts said defendant’s plea of guilty as charged in said information, and finds the defendant guilty as charged therein.
“It is therefore ordered, adjudged and decreed by the court that said defendant, Jack Parnell, for the crime by him committed be sentenced to serve a term of two years at hard labor in the state penitentiary located at Granite in the state of Oklahoma, from and after February 18, 1921, and that he pay all the costs of this prosecution, taxed at $45.
“It is further ordered by the court that said defendant be committed to the custody of the sheriff of Comanche county until the sheriff or some one designated by him shall transport said defendant to said penitentiary at Granite, Okla., when said sheriff shall deliver said defendant to the warden or the person designated by him, to be by said warden held and confined in said penitentiary, at hard labor, for a period of two years, from and after February 18, 1921. It is further ordered by the court that the clerk of this court make two certified copies of this judgment and deliver same to said sheriff, one of which shall be his warrant and authority for keeping said defendant in his custody until the sheriff or some one designated by him shall transport him to said penitentiary. and for the delivery of defendant to said warden; and the other of which he shall deliver to the warden or keeper of said penitentiary, which shall be his warrant and authority for the detention and confinement of said Jack Parnell in said penitentiary, as herein directed.
“It is further ordered that said sheriff shall make due return of how he has executed this judgment.
“Cham Jones,
“Judge of the District Court.”

The minutes of the court clerk disclose the following:

“And now at this time, February 18, 1921, the defendants. Jack Parnell, Tom Tracy, and Bennie Mobley appear before the bar of said court and are formally arraigned, and when asked by the court whether they are guilty or not guilty,, as charged in the information, the said defendants plead that, they are guilty as charged in the information.
“Thereupon the court advised the defendants of the status of their ease under their plea as entered, and the defendants being satisfied with said plea, it is ordered and adjudged by the court that the defendants Jack Parnell,, Tom Tracy and Bennie Mobley for the crime by them committed be sentenced to the penitentiary at Granite for two years, said sentence to date beginning February 18, 1921.
“Thereupon, it is ordered by the court that the sentence as to Bennie Mobley be suspended pending good behavior, and. that the defendant Bennie Mobley pay the costs within thirty days, and his sentence to begin at the time he is delivered to the warden of the penitentiary, as per journal entry.”

Upon a hearing of this application, on the 27th day of June, 1921, by affidavits and oral testimony introduced, it was made to appear to the satisfaction of this court that the' defendant, at the time of the rendition of the judgment against him, was under the age of sixteen years, and that in the proceedings had in the justice and district courts the defendant, was without counsel, and that no parent, guardian or friend of the defendant was present or had any knowledge of the-proceedings; and both the record and the testimony offered show that no preliminary investigation of the question of the-probable guilt and the capacity to commit crime charged was made in the juvenile court of Comanche county.

We think it is fair to deduce from the record itself, as; shown by the minutes of the court, that the defendants entered their plea and received their sentence without the benefit of counsel.

Quoting the minutes:

“Thereupon the court advised the defendants of the status of their ease under their plea as entered, and the defendants being satisfied with said plea it was ordered and adjudged by the court that the defendants Jack Parnell, Tom Tracy, and Bennie Mobley for the crime by them committed foe sentenced to the penitentiary at Granite for two years.”

Be that as it may, the evidence at the hearing showed that this defendant was without counsel.

The question here before this court is whether the district court of Comanche county or the officers of the court issuing the process under which the defendant is detained had jurisdiction of the defendant and the subject-matter in-wolved, and acted within that jurisdiction in issuing and ¡serving the commitment, incarcerating the defendant in the .■state penitentiary at Granite; or, in other words, whether '.the district court had jurisdiction to try the defendant, an infant under the age of sixteen years, without first according him a preliminary investigation of the question of probable (guilt and capacity to commit crime, made by the juvenile ■court of Comanche county. Incidentally, it becomes necessary to inquire into the purpose and intent of the Legislature in, establishing the juvenile court, and the effect and scope of the juvenile law, as applied to this case.

At the threshold of this inquiry it is well to bear in mind that the rights of the infant are not the only consideration contemplated by the juvenile statutes. The state and •society have an interest in protecting, caring for and reforming neglected and delinquent juvenile offenders. Strictly speaking, .statutes of this character are not criminal in their nature, and .are designed to protect and save the child from evil or criminal influences for his own sake, as well as to save the child for the state and if possible make of him a useful, law-abiding ■citizen. The essential feature of our juvenile law is the creation of a special court, the procedure of which is less formal and more paternal than that of the regular criminal courts,, and in which the child is protected from publicity and fromi association with adult or habitual criminals. To that end,, the court is given a wide discretion in dealing with delinquent or incorrigible children, and it is made the duty of the court to commit such children to the care of probation officers, or to charitable or public institutions, or, in the case of actual criminal acts, to a reform school or reformatory, instead of to our state penitentiaries.

An investigation discloses that in recent years in every state of the Union there have been enacted juvenile laws and courts, in the main similar to our own. The courts, in construing these statutes, have universally treated them as beneficial and entitled to liberal construction.

This court having found, as a matter of fact, that the defendant, Jack Parnell, at the time of the rendition of the judgment and sentence of which complaint is made, was under the age of sixteen years, it becomes necessary to inquire what court or courts had original jurisdiction of the person and the offense. This court, in a number of cases, has passed upon the question of the jurisdiction of juvenile offenders. In the case Ex parte Raymond Hightower, 13 Okla. Cr. 472, 165 Pac. 624, Judge Doyle, speaking for the court, said:

“Under the provisions of this act a child under 16 years of age cannot be guilty of the commission of a crime except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of sixteen years upon an information charging a felony.
“This act contemplates an investigation by the juvenile court of complaints against children under sixteen years of age, with the view of determining whether or not the child 'committed the acts charged, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And, if, upon an investigation, the juvenile court finds this affirmatively, it is then within its discretion to hold said child to be ■proceeded with in the manner provided by law in the court having competent jurisdiction of the offense, certifying to such court both finding as to probable cause, and that the child.knew the wrongfulness of the acts complained of.”

The court in the case In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022, made the following declaration:

“Under the provisions of this act, a child under the age nf sixteen years cannot be guilty of the commission of a «crime, except in cases wherein it is shown that such child knew the wrongfulness of his acts at the time they were committed.
‘“'The acts or omissions of a child, which in an adult would he a crime, under this law constitute juvenile delinquency ‘■only, except in cases wherein the juvenile court finds that "the child, at the time the acts complained of were committed, /knew the wrongfulness thereof, and holds such child for trial ^before a court of competent jurisdiction.”

In the case of State v. Alexander, 18 Okla. Cr. 546, 196 Pac. 969, Judge Matson, speaking for this court, said:

“The act of March 24, 1909, creating the juvenile court and prescribing the jurisdiction thereof, places the jurisdiction to inquire into the matter of probable guilt and capacity of a juvenile offender under the sole jurisdiction of the county •court.”

See, also, State v. Dunn, 75 Kan. 799, 90 Pac. 231; State v. McClosky, 136 La. 739, 67 So. 813; In re Vera Brown, 117 Ill. App. 335.

The state contends that the district court being a court «of record and a court of general jurisdiction, in the absence of 'a record affirmatively showing jurisdictional facts, there is a presumption that the court inquired into its jurisdiction and in this case found, as a matter of fact, that the defendant was .over the age of 16 years. Assuming, without deciding, that there was such a presumption, it is nevertheless a rebuttable presumption; and such presumption, if there was any, has been, overcome by proof introduced in the presentation of this application, showing that the defendant was under the age of 16 years. Upon the presumption of jurisdiction, the courts, of this state have, in a number of cases, decided that the fact of jurisdiction, in the absence of an affirmative showing in the; record, may be inquired into collaterally.

Upon the question of the conelusiveness of presumptions in favor of the jurisdiction of a court of general jurisdiction, it was the rule at common law, adhered to at the present time, in many of the states, that a judgment rendered by such a court cannot be attacked laterally, where no want of jurisdiction is apparent in the record; and that whenever the record of the court is merely silent upon any particular matter it will be conclusively presumed that whatever ought to have been done was not only done, but that it was rightfully done. The, courts of some states, including Oklahoma, have in certain cases departed from this common law doctrine and have taken the view that want of jurisdiction in the court rendering the judgment may be established by extrinsic evidence,, not only where the record is silent on the question of jurisdiction, but even to contradict recitals of jurisdictional facts; found therein; that if a court entering a judgment never had jurisdiction, it is powerless to make a record capable of importing that it had jurisdiction. In re Patswald, 5 Okla. 789, 50 Pac. 139; Condit v. Condit, 66 Okla. 215, 168 Pac. 456, 15 R. C. L. 884, and eases cited.

In Kansas it has many times been decided that a judgment rendered without notice is void and not voidable, and. that the court rendering such judgment was without jurisdiction. In Iowa, Illinois and New York it has been held! that judgment rendered by consent of an unauthorized attorney is void, and that the court in such a case is without any jurisdiction to pronounce a valid judgment. In all of these cases the record itself did not disclose a want of jurisdiction, and proof of a want of jurisdiction was made by evidence independent of the record. Williams v. Johnson, 21 L. R. A. 853, notes.

In the habeas corpus proceeding, In re Patswald, supra, the petitioners had been tried for the crime of perjury in the district court of Oklahoma county, on the 21st day of December, 1895, the cause was submitted to the jury, and they retired in charge of the bailiff to deliberate and consider of their verdict. The court adjourned from time to time, and on the 24th day of December Judge Scott, the presiding judge trying the cause, went to the city of Norman in Cleveland county, and there opened and adjourned court and transacted a' large amount of business. On December 26th Judge Scott returned to Oklahoma county, opened court and received the verdict of the jury in the Patswald ease. The records of the court in Oklahoma county did not disclose that Judge Scott had left the county and the judgment record in Oklahoma county showed no want of jurisdictional facts. The court held that in the absence of the judge from the county, holding court in another county during the deliberations of the jury, the jury had no authority to consider the case, and that the jurisdiction of the court was suspended and lost, and that the petitioner was entitled to his liberty in the habeas corpus proceeding and this, notwithstanding the fact that the judgment appeared to have been regular and to have been rendered by a court of competent jurisdiction. It was held that the petitioner in a habeas corpus proceeding has a right to show that the court did not in fact have the power or authority at the time of rendering the judgment to render that particular judgment, and that it was then incompetent to render the judgment.

In the case of Condit v. Condit, supra, a civil suit involving the service of process against an infant, it was held:

“A judgment rendered without jurisdiction of the person is no judgment at all; it is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever. As to the person in whose favor it professes to be, it places him in no better position than he occupied before, and gives him no new right. As to third persons, it can neither be a source of title, nor an impediment in the way of enforcing claims. It is not necessary to take any steps to have it reversed, vacated or set aside, and whenever it is brought up against the party he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral. It is a judgment which is entirely void, and may be shown to be void in a collateral as well as a direct proceeding, by extrinsic evidence as well as by the record itself. ’ ’

If the rule above stated applies to civil cases, involving property rights, it seems that it would apply with even greater force in a criminal case, involving the life or liberty of an infant. Jefferson v. Gallagher, 56 Okla. 405, 150 Pac. 1071.

While it is well settled that a judgment cannot' be attacked collaterally for an error committed in the exercise of jurisdiction, the rule is equally well established that a judgment may be attacked in a collateral proceeding for error in assuming jurisdiction. Even where a court has jurisdiction of the parties and the subject matter, yet if it renders a judgment which is not within the powers granted to it by the law of its organization, its judgment is void. 15 E. C. L. 833, notes and cases there cited.

No presumption will be indulged in favor of a judgment, where the record is silent as to some fact, if the presumption violates an express statutory requirement as in this ease, requiring a preliminary investigation by a juvenile court. 15 R. C. L. 876.

The jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is always a proper subject of inquiry in a habeas corpus proceeding. Ex parte McAlester, 13 Okla. Cr. 47, 161 Pac. 1176; Ex parte Hightower, 13 Okla. Cr. 472; 165 Pac. 624; In re Hill, 12 Okla. Cr. 335, 156 Pac. 686; Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815.

There has always been a well recognized exception to the presumption that a court of general jurisdiction in the •absence of specific recitals has jurisdiction of the person and the subject matter, namely, in cases where such court proceeds in the exercise of special powers only, derived from statutes, and not in the exercise of general jurisdiction, according to the •common law. Where such special jurisdiction is exercised by a court of general jurisdiction, the jurisdictional facts must appear in the record, and will not be presumed in a collateral proceeding. As to all juvenile offenses, the district court is a court of limited or special jurisdiction, and not a court of ¡general jurisdiction. 23 Cyc. 108, and cases there cited; 15 R. C. L. 883; Ferguson v. Jones (Ore.) 3 L. R. A. 620.

As has been seen, under the provisions of our juvenile statutes, an infant under the age of sixteen years is presumed to be incapable of committing crime, and that presumption remains until the juvenile court finds to the contrary. In all eases, where the county court, sitting as a juvenile court, finds that any child knew the wrongfulness of his acts and it is probably guilty of crime, then and then only is the district court empowered to deal with such delinquent child. And where the record is silent upon the question of an inquiry into the age of the child and of the mode and manner of acquiring jurisdiction, applying the rule above stated, any presumption that the court had jurisdiction of such juvenile offender is at least a rebuttable one, and a proper subject of inquiry by this court in a habeas corpus proceeding, challenging the jurisdiction of the district court.

This defendant was an infant, as we think under the age of sixteen years, and a delinquent child, within the exclusive original jurisdiction of the juvenile court. At any rate, he was without the advantage of advice of counsel, guardian or parent. He was charged with and arrested for larceny, along with other companions, on one day; on the day following he was given an opportunity to have a preliminary hearing, which he waived; and on the same day he was taken into district court, where he entered a plea of guilty and was sentenced to imprisonment for a term of two years in the state penitentiary at Granite, where he is now incarcerated with others, some of whom are hardened, habitual criminals. The possibilities are great that by the end of his term he will be like them and will go out into society an undesirable citizen, possibly an habitual criminal. Why the defendant waived a preliminary hearing and why he entered a plea of guilty does not appear. Not having the advantage of counsel, it may be presumed that he did on the advice of the county attorney or his eodefendants. Under the circumstances, he was hardly capable of determining these matters without advice from some one.

One of the purposes of the juvenile law was to prevent this very situation, and to construe the force and effect of the juvenile law in any other manner would make it ineffectual and would not be in accord with the express purposes recited in the act. The juvenile act expressly provides that it shall be liberally construed, and in our opinion no other court has jurisdiction, by any fiction or presumption, to deal with juvenile offenders, in the face of the express and necessarily implied provisions of the juvenile law.

It has been argued that any defendant in a criminal case may waive a preliminary examination. Ordinarily that is true. But can an infant, under the age of sixteen years, without guardian or counsel, waive a preliminary hearing in a court having no jurisdiction of his person? Manifestly not. To contend that he could would be arguing in a circle. If the court had no jurisdiction, or if the infant had no capacity to commit crime, he is without capacity to waive anything, and cannot by waiver or consent give to any court the jurisdiction required. Such an infant cannot give his consent in a civil action, so as to import jurisdiction to a court, where his property rights are involved; and the same reason would, it seems to us, apply with greater force in a criminal case. Service of process, as required by statute, upon an infant defendant, cannot be waived. No one is authorized to appear for him in an action prior to such service. His defense must be made by a guardian for the suit, whose appointment cannot be made until after service of summons in the action. Condit v. Condit, supra.

The application for a writ of habeas corpus is, for the reasons stated in this opinion, allowed; and the warden of the state penitentiary at Granite is ordered and directed to hold the defendant, Jack Parnell, for a period of ten days, to permit the juvenile court of Comanche county to take charge of and exercise jurisdiction over him, as provided by law; and upon the failure of the juvenile court so to act within said period, the warden is directed to discharge and liberate the said defendant.

DOYLE, P. J., concurs; MATSON, J., dissents.


author: PEE CUEIAM.

text:
    CLIFTON C. SMITH v. STATE.
    No. A- 3705.
    Opinion Filed July 27, 1921.
    (199 Pac. 1118.)
    Appeal from District Court, Payne County; Arthur E. Swank, Judge.
    Clifton C. Smith was convicted of manslaughter in the first degree, and appeals.
    Appeal dismissed.
    L. G. Lewis and John P. Hiekam, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error, Clifton C. Smith, was convicted of manslaughter in the first degree, and his punishment assessed at 15 years’ imprisonment in the state penitentiary, on an information charging that in Payne county on the 28th day of February, 1919, the defendant, Clifton C. Smith, did kill and murder one Carl W. Skeen, by shooting him with a pistol. From the judgment rendered in accordance with the verdict on the 3rd day of October, 1919, an appeal was taken by filing in this court on February 20, 1920, a petition in error and case-made. In the meantime, the defendant, having failed to give a supersedeas bond, was committed to the state penitentiary. On June 22, 1921, his counsel of record filed with the clerk of this court a motion to dismiss the appeal; which motion is sustained and the appeal herein is dismissed.


author: PER CURIAM.

text:
    AARON WARDLOW v. STATE.
    No. A-3546.
    Opinion Filed July 27, 1921.
    (200 Pac. 267.)
    Appeal from District Court, Washington County; Preston A. Shinn, Judge.

      Aaron Wardlow was convicted of murder, and appeals.
    Appeal dismissed.
    W. H. Twine, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Aaron Wardlow, was indicted by the grand jury at the September term, 1918, of the district court of Washington county, charged with the murder of W. L. Mull, and upon his trial for the offense for which he was charged, he was found guilty of murder, the punishment assessed being life imprisonment. Prom the judgment rendered on the verdict, he appealed by filing in this court on May 21, 1919, a petition in error with case-made. No briefs were filed. When the case was called for final submission, plaintiff in error’s counsel of record filed his motion to dismiss the appeal; which motion is sustained and the appeal herein is dismissed.


author: DOYLE, P. J.

text:
    SIMPSON STEVENSON et al. v. STATE.
    No. A-3512.
    Opinion Filed June 8, 1921.
    Rehearing Denied July 27, 1921.
    (199 Pac. 219.)
    (Syllabus.)
    Homicide — Manslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder evidence held sufficient to support a verdict of manslaughter in the first degree.
    Appeal from District Court, Garvin County; P. B. Swank, Judge.
    Simpson Stevenson, Callis Shirley, Sam Stevenson, and Fleet Stevenson were convicted 'of manslaughter in the first degree, and appeal.
    Affirmed.
    John M. Stanley and Monroe Osborn, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and "W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Garvin county, rendered upon a verdict finding the defendants Simpson Stevenson, Callis Shirley, Sam Stevenson and Fleet Stevenson guilty of manslaughter in the first degree, and leaving the punishment to be fixed by the court. On the 6th day of September, 1918, the court sentenced the defendants to imprisonment in the penitentiary, each for the term of four years.

Said defendants, together with Luther Lovell, were jointly informed against for the crime of murder, it being alleged that they did hill and murder one Ollie Prince. Luther Lovell asked and was granted a severance. It appears that Lovell is a white man; that the other parties are all' negroes; that the Stevensons are brothers and that Callis Shirley is the father-in-law of Simpson Stevenson.

The evidence shows that on Sunday the 10th day of February, 1918, a number of the negroes of the neighborhood had congregated inear the Mount Zion chiirch, norHh of Hennepin; they were engaged in crap shooting and all of them were drinking more or less. Alfred Stevenson, a distant cousin of the Stevensons, and Ben Johnson, about the same degree of kinship to them, had a dispute over a dollar; the crowd agreed that they should settle it with a fair fist fight. Johnson, it appears, had the best of the fight. Callis Shirley, whom witnesses call, “John Callis”, jerked out his knife and said, “No son-of-a-bitch is going to run over Alfred Stevenson.” Johnson backed away and picked up a club; then Simpson Stevenson pointed a pistol at Johnson and said, “Don’t hit John Callis”, and Johnson dropped the club and ran away. Ollie Prince, the deceased, brother-in-law of ran away. Ollie Prince, the deceased, a brother-in-law of Ben Johnson, came np with a gun in his hand by his side. Callis Shirley caught Ollie Prince by the coat with one hand and held an open knife in the other. Alfred Williams testified that at this point, “Simpson Stevenson shot Ollie Prince, and Sam Stevenson, standing behind Simpson, shot Prince; then John Callis shot Prince in the back as he was falling ; then Fleet Stevenson called to Luther Lovell to bring him his gun, and ran to meet him; Luther Lovell gave him his gun and he shot Ollie Prince.”

Fisher Franklin testified:

“I was down the hill a piece and I heard some shooting; when I came back Sam Stevenson was shooting at Ollie Prince; he fired two or three shots; I turned and walked off.”

Sim Johnson testified:

“Ben Johnson is my brother; Ollie Prince married my sister. When the fight ended John Callis said, ‘Nobody can run over Alfred Stevenson, ’ and he pulled out his knife; Ben Johnson went backwards and picked up a stick. Simpson Stevenson said, ‘Don’t hit John Callis.’ He had a gun in his hand, and went running down there. Ollie Prince went running down there and said, Don’t double on Ben, ’ and they all met up right there. Simpson grabbed Ollie’s gun with his left hand and both their guns went off about the same time. Then Sam Stevenson shot Ollie Prince. I ran off then. ”

Nealy Prince, a cousin of Ollie Prince, testified that after the fight they all began to laugh and John Callis came up with his knife open and said, “Nobody ain’t going to run over Alfred Stevenson.”

■ “Ben Johnson went backwards, and picked up a stick and started to hit Callis, then Simpson Stevenson ran up with his gun on Johnson and said, ‘Don’t hit Callis.’ Johnson dropped his stick and ran away and they followed him a little piece; about that time Ollie Prince ran down there with his gun down to his side saying, ‘Don’t double teams on Ben.’ John Callis caught Ollie Prince with one hand and drew back the other hand holding a knife. Ollie Prince started up with his gun and Simpson Stevenson grabbed it and shot him, and Sam Stevenson, standing behind Simpson, shot Ollie, then John Callis shot him. I heard Fleet Stevenson hallooing, ‘Give me my gun, Luther,’ and Luther Lovell handed him a gun and Fleet ran down there and shot Ollie Prince. ’ ’

On cross-examination he stated:

“I was convicted in this county of killing Lige Stevenson. I served a term for this, and also a term for killing another negro in Oklahoma.”

Upon a proper predicate showing that Sherman Prince and Park Prince, witnesses for the state on the preliminary examination, were out of the state, in a ¿gaining camp, their testimony on the preliminary examination was read to the jury, as follows:

Testimony of Sherman Prince:

“I was on the hill where the automobiles were; about the time I got down there Ollie Prince ran up and John Callis grabbed him and Ollie made for his gun; Simpson Stevenson grabbed the gun and shot him; at the same time Ollie’s gun went off; then Sam Stevenson shot him and X ran away.”

Testimony of Park Prince:

“Ben Johnson and Alfred started to fight and backed down the hill; Alfred knocked Ben down; then Ben knocked Alfred down. John Callis ran up and said he would not let-anybody do that; about that time Ollie Prince ran up; John Callis took hold of Ollie’s coat; Ollie made for his gun and Simpson Stevenson grabbed it and shot him; then Sam Stevenson shot Ollie and walked away; then John Callis shot him; then Fleet Stevenson ran up and shot him. ’ ’

The evidence further shows that there were five gunshot wounds in the body of the deceased.

For the defense, Melvin Taylor testified:

“I and my wife, Ollie Prince, and Alfred Stevenson stayed at Ben Johnson’s home Saturday night. The next day we all went down to where the killing took place, about 200 yards south of Ben Johnson’s; we were all shooting craps there, and they got into a dispute;.some of the boys said let them fight a fist fight and the best man will win, and some of them said all right, let them fight. This boy knocked Ben down the first lick, Ben got up and hit him and knocked him down and kicked him and some of the boys said that was enough. Alfred Stevenson got up and Fleet asked him if that was enough, or did he want to have it out'. About that time John Callis said, ‘No son-of-a-biteh will run over Alfred Stevenson,’ and he got his knife out. Ben found a little stick. About that time Simpson Stevenson ran up with a six-shooter, and Ben Johnson broke and ran. Ollie Prince ran right up in the crowd with a gun in his hand; about that time there were two shots, and then another shot and he fell. I saw Sam Stevenson wiíil a Sfesliooter; he fired three shots. I couldn’t say whether he was shooting at Sherman Prince or not.”

Luther Lovell testified:

“I live near Katie. That afternoon with Will Knight I was going over to Boyle Wright’s in a Ford car, and passing a bunch of negroes, we stopped to see what the excitement was. There was a dispute over a dice game and Fleet Stevenson said if they wanted to fight, why to fight a fair fist fight. After they fought a little, Fleet asked Alfred if he had enough, and Alfred said, ‘yes’; John Callis ran up and Ben Johnson ran back and grabbed a piece of fence post and threw it at John Callis. Callis had his knife and said, ‘If you hit me with that stick I will cut you in two. ’ Ollie Prince came up with a gun in his right hand down by his side, and says, ‘I will kill some of you, God-damn you, ’ and got up close to Simpson and Simpson grabbed Ollie’s gun with his left hand and pushed it off from him. Both guns were fired. Simpson fired another shot or two. I saw Sherman Prince shoot into the ground before the fight started. I saw Sam Stevenson shoot at Sherman Prince twice. I did not give a gun to Fleet Stevenson.”

W. L. Knight testified:

“I was with Luther Lovell. I think it was about 2:30 when we stopped there. We had been there about 30 minutes when the fight took place. I saw Ben Johnson pick up a club; the best I can tell he threw it at John Callis and ran away. I saw Ollie Prince with a gun in his hand down by his right side; he threw the gun down on Simpson Stevenson, and Simpson grabbed the gun and shot him. I think he shot twice. Ollie Prince fell and I think he fired two shots at him after he fell. I saw Sam Stevenson shoot at Sherman Prince. John Callis was not doing anything that I know of only just helping them fight. I didn’t see Sam Stevenson shoot Ollie Prince before or after he fell.”

Callis Shirley testified:

“I live a mile south of Katie. The Stevenson boys live about a mile west. The killing occurred about six miles, maybe seven, southwest. I drove over to Stevenson’s that day. After dinner Simpson, Sam and Fleet got in my car and we started over to Inman Prince’s place; on the way we saw the crowd and stopped; they were shooting craps; Ollie Prince took me down on the branch and gave me two or three drinks of whisky; we came back and he borrowed a dollar and a half from me to get into the game again; the fight started over a dollar. Fleet said, ‘Let them fight, if they will fight a fair fight. ’ They fought around; Alfred Stevenson was down and Ben Johnson was kicking him; Fleet picked him up and asked him if he had had enough; he said ‘yes.’ Alfred Williams said, ‘Beat hell out of him Ben, or get that dollar,’ and I said, ‘Ben, let him alone, all of you men can’t double on Alfred Stevenson while I am here.’ Ben said, ‘What in hell is it to you?’ I said, ‘Ben, I ain’t going to let all you boys double on this one boy,’ and he got a club and started at me .with it. I stepped backwards and got my knife out and told him if he hit me I would cut him in two. He threw the club at me and just missed my head. Ollie Prince came running down there with a gun in his hand, holding it down by the side of his leg and said, ‘I will kill some of you sons-of-bitches,’ and stuck his gun into Simpson Stevenson’s breast. Simpson caught the gun with his left hand and threw it off and shot him; both guns went off at the same time; Simpson shot him in the left breast and Ollie fell. I think he shot him twice, and maybe more, I don’t know. I saw Alfred Williams fired a shot, then he stepped behind a tree and fired two or three shots towards where Ollie Prince was. I didn’t see Sam Stevenson shoot Ollie Prince; I did not shoot Ollie Prince, because I had nothing to shoot him with; I know that Fleet Stevenson did not get a pistol from Luther Lovell and he did not shoot Ollie Prince.”

Simpson Stevenson testified:

“Inman Prince is my brother-in-law. He lives about two miles southwest of where the killing took place. We were passing on the road about 100 yards from where the crowd was and heard them laughing and talking and we stopped and got out of the ear. When the fight started Alfred Williams took out his automatic and Ollie Prince had his gun. Fleet told them to let them have a fair fight. Williams stuck his automatic back in his hip pocket. The fight started and the crowd ganged around; about the time the fight was over John Callis came over and said, ‘There ain’t no use in all you fellows getting in on Alfred Stevenson, Ben has got his dollar.’ Ben said, ‘No.’ Alfred Williams said, ‘We will kill the son-of-a-biteh or get the dollar,’ and John Callis said, ‘I ain’t going to let all you fellows get on Alfred Stevenson.’ Ben ran back and got a stick; John Callis ran his hand in his pocket and got his knife out, and said, ‘If you hit me with that club I will cut you in two.’ Ben threw the club and ran home. Ollie Prince ran right in and threw his gun right in my stomach and said, ‘You son-of-a-biteh, I will cut you in two.’ I grabbed the gun with my left hand and shoved my gun into his breast and shot him. I shot to kill, because he was going to shoot me. He shot first, I shot him again in the side as he was falling; I don’t know whether or not I shot him any more; I might have, he still had the gun in his hand.”

Sam Stevenson testified:

“It was about 3:30 in the afternoon when we stopped and went to where the crowd was. After the fight stopped John Callis told the boys there was no use of doubling on Alfred Stevenson. Ben Johnson backed off a piece and got a club about two feet long and threw it at John Callis and ran away. Ollie Prince threw has gun down on my brother. Simpson grabbed the gun with his left, hand, shoved it off and shot him twice, as well as I remember; it seemed like there were several guns firing; Sherman Prince shot at me two or three times, and I shot at him twice and he broke and ran. I didn’t shoot Ollie Prince either before or after he fell, and John Callis did not carry a pistol there that day and Fleet Stevenson did not get a pistol from Lnther Lovell and did not shoot Ollie Prince. ’ ’

Fleet Stevenson testified:

“When the dispute started, Alfred Williams whipped an automatic out of his hip pocket and said, ‘Take on to him Ben, let’s get the dollar or beat hell out of him.’ I said, ‘Boys if they are.going to fight, let them fight fair, you boys get back with your guns.’ About the time the fight was over I asked Alfred Stevenson, ‘Have you got enough?’ and he said, ‘Yes’. I said, ‘Well, get up and go home.’ Alfred Williams said, ‘Ben, have you got your dollar?’ Ben said, ‘No.’ Williams said, “Well, by-God, let’s get it or kill him.’ John Callis said, '‘You fellows can’t double team on Alfred Stevenson.’ ”

The defendants also offered testimony of several witnesses to the effect that their reputation for being quiet, peaceable and law-abiding citizens was good.

The first error assigned and argued in the brief is that the verdict is contrary to law and contrary to the evidence, and for this reason the court erred in refusing to direct the jury to return a verdict of acquittal.

In the defendants’ brief it is argued “that so far as Simpson Stevenson is concerned the evidence shows that he acted in his necessary self-defense when he fired the fatal shot ; that as to Callis Shirley, Sam Stevenson and Fleet Stevenson, no conspiracy having been shown, and they not having advised or encouraged Simpson Stevenson to kill the said Ollie Prince, the state was required to show that they actually participated in the commission of said crime prior to the fatal shot.”

This court has uniformly held that where the testimony is conflicting, the credibility of witnesses and the weight to be given their testimony is a matter for the jury to determine, and unless the evidence fails so far to support the verdict that the necessary inference is that the verdict is the result of passion and prejudice, this court will not disturb a verdict of guilty upon the' weight of the testimony.

In this ease it is sufficient to say that the evidence on the part of the state shows that the defendant Simpson Stevenson was assaulting Ben Johnson with a pistol and the defendant Callis Shirley was assaulting Ben Johnson with a knife when Ollie Prince, Johnson’s brother-in-law, came to his assistance, and was shot by Simpson Stevenson; that each of the other defendants participated in the commission of the homicide by shooting deceased.

A defendant cannot avail himself of the plea of necessary self-defense, if the necessity for the defense was brought on by his own deliberate and lawless acts, and any defendant who fired any one of the shots that struck deceased is guilty of at least manslaughter, where such shot contributed to deceased’s death, even if the shot was not necessarily fatal, and though the shot fired by some other defendant was necessarily fatal. Under the evidence it was a question for the jury to determine as to whether or not the necessity for shooting deceased by the defendant Simpson Stevenson, as testified to by said defendant and his witnesses, was brought on by his own deliberate and lawless acts, and it was a question for the jury to determine whether or not the shots fired by the other defendants contributed to the deceased’s death. On this phase of the case the court instructed the jury:

“That if any defendant fired a shot into the body of said Ollie Prince after he was dead or mortally wounded, and if you believe that such shot in no way contributed to the death of such deceased, then such defendant would be guilty of neither murder nor manslaughter and you should return a verdict of not guilty as to such defendant, unless you find from the evidence beyond a reasonable doubt that such defendant at the time and place alleged in the information aided, abetted, assisted or encouraged Simpson Stevenson to unlawfully, wilfully, feloniously without authority of law and without jutifiable or excusable cause, kill the said Ollie Prince.”

The instructions of the court to the jury were more favorable to the defendants than they should have been.

We have given this case our most careful consideration, and our conclusion is that the testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict, and we have found no error in the record prejudicial to the substantial rights of the defendants. It follows that the judgment appealed from, should be, and accordingly is affirmed.

MATSON and BESSEY, JJ., concur.


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    D. M. ERWIN v. STATE.
    No. A-3419.
    Opinion Filed July 30, 1921.
    (200 Pac. 250.)
    Appeal from County Court, Harmon Conn; E. C. Aber-nethy, Judge.
    D. M. Erwin was convicted of the offense of unlawfully operating a retail drug store, and appeals.
    Reversed.
    S. A. Fowler and W. J. Counts, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

D. M. Erwin was convicted at the April term, 1918, in the county court of Harmon county of the offense of unlawfully operating a retail drug store, and punishment assessed at a fine of $100.

From this judgment he has appealed to this court, and assigns numerous alleged errors as grounds for reversal, but in view of the disposition made of this appeal it will not be necessary to consider each of said assignments.

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

“Plaintiff in error was charged by information and convicted of the crime of unlawfully operating a retail drug store. It was charged in the information in substance that he owned and operated a retail drug store in the town of Gould in this state; that he was not a licensed pharmacist, and did not employ a licensed pharmacist in his store, and that he filled and unlawfully allowed others to fill prescriptions in his said store.
“The evidence discloses that plaintiff in error was operating a drug store in the town of Gould; which town had a population of less than three hundred people; that there were two drug stores in the town at that time, one operated by a Mr. Bryant, and the other by plaintiff in error, but Mr. Bryant always kept a registered pharmacist; that plaintiff in error-sometimes had a registered pharmacist and sometimes did not that he frequently permitted doctors to come into his store and fill their own prescriptions.
“There is no direct evidence upon the question,but we think the evidence as a whole possibly justifies the conclusion that, plaintiff in error was not a licensed pharmacist. We are unable to find, however, in the record any evidence whatever which shows that he himself ever filled any prescription for drugs or medicine or that he permitted any one else to do so other than a registered pharmacist, or some doctor filled his own prescription.
“The specific charge in the information was that on June, 15, 1917, the plaintiff in error filled the prescription for one Eugene Hager. This witness testified that he was sick in August, 1917; that he procured a prescription from Dr. Searo-brough; that he took this prescription to plaintiff in error to have it refilled, and plaintiff in error told him that he could not refill it, but that he left the prescription there and after-wards came back and the prescription was filled, but he did not know who filled it, and there is no direct evidence as to. when it was filled. That is, whether it was filled at the time-when plaintiff in error had or did not have- a registered pharmacist in his employ.
“We feel that the evidence was wholly insufficient to warrant and uphold the verdict of the jury, and we ask that the judgment of the court be reversed.”

The court has carefully examined the evidence in support of the charge that defendant operated a retail drug store without employing a licensed pharmacist, and we reach the conclusion that the confession of error of the Attorney General should be sustained and the judgment reversed.

There is evidence in the record that defendant operated a drug store, but there is no competent and legal evidence to the effect that while he so operated said drug store, in a town of less than three hundred inhabitants according to the evidence in the case, he either filled and compounded prescriptions of physicians or permitted anybody else to do so in said drug store who was not at the time a registered pharmacist. As we construe the statutes, defendant would have been permitted to sell, in that kind of a town without employing a registered pharmacist, certain proprietary and patent medicines, and he would also not be subject to criminal prosecution for permitting any physician in regular practice to supply his patients with medicines from his stock of drugs.

The evidence in this case merely amounts to a suspicion of guilt. There is no competent evidence that defendant compounded and filled any prescriptions from a licensed physician either by himself, or permitted any other person to do so who was not a registered pharmacist, although there is proof in the record that defendant did conduct a retail drug store, but under the provisions of sections 6831 and 6840, Revised Laws 1910, it is evident that in towns of this population before defendant could be found guilty, there must be proof that in the operation of said drug store he, not being a registered pharmacist or assistant pharmacist, either himself filled and compounded prescriptions or else permitted some other person who was not so qualified to do so.

There being an entire absence of proof of the essential elements of the offense, it is the opinion of this court that the confession of error of the Attorney General should be sustained and the judgment reversed, and it is so ordered.


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    JIM FORTUNE v. STATE.
    No. A-3725.
    Opinion Filed July 30, 1921.
    (200 Pac. 265.)
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
    Jim Fortune was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Mountcastle & Boydstun, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Jim Fortune was convicted in the superior court of Muskogee county upon a charge that he did have possession of certain intoxicating liquor with the intent to sell the same and his punishment was fixed at confinement in the county jail for 60 days and a fine of $100. From the judgment rendered on the verdict, an appeal was taken by filing in this court on March 11, 1920, a petition in error with case-made. No brief has been filed. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reason stated the motion to -affirm is sustained, and the judgment of the lower court is affirmed.


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    STATE v. W. O. GREEN.
    No. A-3677.
    Opinion Filed July 30, 1921.
    (200 Pac. 264.)
    Appeal from District Court, Okfuskee County; Lucien B. Wright, Judge.

      W. 0. Green was charged by indictment in the district court of Okfuskee county with the crime of unlawful possession of an elector’s registration certificate. Prom a judgment quashing and setting aside the indictment, the state has appealed.
    Appeal dismissed.
    S. P. Preeling, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal by the state from a judgment for defendant quashing and setting aside a certain indictment filed in the district court of Okfuskee county, in which the said defendant, W. 0. Green, was charged with the crime of unlawful possession of an elector’s registration certificate.

An examination of the record and files discloses that no written notices of appeal were ever served upon the court clerk of Okfuskee county, or upon counsel for defendant or defendant himself, nor does the record disclose that any summons in error was ever issued and served within the period in which this appeal could' have been perfected, nor is there any waiver of the issuance and service of such summons in error by counsel representing defendant.

For such reasons the appeal must be dismissed as this court has no jurisdiction to entertain the appeal on its merits. State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043; Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173.

The appeal is dismissed.


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    JOHN PURSLEY v. STATE.
    No. A-3697.
    Opinion Filed July 30, 1921.
    (199 Pac. 1118.)
    Appeal from County Court, Ottawa County; C. S. Wort-man, Judge.

      James Pursley was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Mason, Church & Jones, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, James Pursley, was convicted on a charge that he did have in his possession three quarts of whisky with the unlawful intent to sell the same, and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. From the judgment rendered on the verdict he appeals. The proof on the part of the state is undisputed. It shows that the defendant had six pints and one half pint of whisky in the pockets of his clothes.

No brief has been filed, and when the case was called for final submission, no appearance was made in behalf of plaintiff in error. Whereupon the Attorney General moved to affirm the judgment for failure to prosecute the appeal. An examination of the record discloses that the appeal is destitute of merit. It follows the judgment should be and is hereby affirmed. Mandate forthwith.


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    Ex parte GLADYS HICKS.
    No. A-3645.
    Opinion Filed July 30, 1921.
    (198 Pac. 97.)
    Application of Gladys Hicks for writ of habeas corpus. Writ allowed and petitioner discharged.
    Morgan & Osmond, for petitioner.
   PER CURIAM.

In the proceeding, Gladys Hicks, by her counsel, presented to this court a verified petition, wherein she alleges that she is illegally restrained of her liberty by A. J. Brown, chief of police of Anadarko; that her illegal detention consists in this: that she was tried and pronounced guilty on a charge of vagrancy by the mayor of said city, and fined in the sum of $100, and was informed that if she would pay $50 she would be released, provided she would leave the city and not return; that she paid said sum of $50 and the next day said chief of police again took her in charge; that said restraint is unlawful and unauthorized for the reason that said mayor was without authority to impose a fine of $100, therefore the commitment issued is void, in that it deprives petitioner for her liberty without due process of law.

This presents the identical question passed upon in the case of Ex parte Johnson, 13 Okla. Cr. 30, 171 Pac. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233. For the reasons stated therein, we are of the opinion that under the proceedings had petitioner was deprived of her liberty without due process of law, and that the writ should be allowed and petitioner discharged.


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    LINK WATSON v. STATE.
    No. A-3699.
    Opinion Filed July 30, 1921.
    (198 Pac. 98.)
    Appeal from Superior Court, Okmulgee County; R. E.. Simpson, Judge.
    TInk Watson was convicted of selling intoxicating liquor,, and appeals.
    Affirmed.
    E. M. Carter, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen.,, for the State.
   PER CURIAM.

Plaintiff in error, Link Watson, was convicted on an information charging the selling of four quarts of whisky to one G. T. Berry, and his punishment fixed at confinement in the county jail for six months and a fine of $500., From the judgment rendered on the verdict, he appeals. The proof on the part of the state showing the sale of the whisky as charged is conclusive and uncontroverted. An examination of the record discloses that the appeal herein is destitute of merit. The judgment of the lower court is therefore affirmed.


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    J. T. MILLIGAN v. STATE.
    No. A-3687.
    Opinion Filed July 30, 1921.
    (199 Pac. 1118.)
    (Syllabus.)
    1. Trial — Demurrer to Evidence* — Directing Verdict — Sufficiency of Evidence. The trial court should not sustain a demurrer to the evidence, or a motion to direct a verdict, where there is proof tending reasonably to sustain the allegations of the information.
    2. Trial — Argument of Prosecution not Erroneous. Held, that the remarks of the county attorney in his closing argument to the jury, and to which objection was made by the defendant, do not constitute error.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    J. T. Milligan was convicted of the crime of larceny of domestic animals, and sentenced to serve a term of five years in the state penitentiary at Granite, and he appeals.
    Affirmed.
    F. E. Kennamer and Geo. S. March, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

The defendant, J. T. Milligan, plaintiff in error herein, was, on the 23d day of September, 1919, convicted of the crime of larceny of domestic animals, and by judgment rendered on the same day sentenced to serve a term of five years’ imprisonment in the state penitentiary at Granite.

The testimony on the part of the state discloses that on the night of November 22, 1917, two young, large iron gray mules which had been just recently shod, disappeared from the lot of one Sam Blevins, their owner, in the town of Ringling. That on the following morning Blevins reported their loss to several of his neighbors, and that the deputy sheriff and five or six of these parties began a search for the mules. That about a half mile out of Ringling the searching party came upon the tracks of the mules, easily recognizable because of the peculiar shoes they were wearing, and followed these tracks to within five or six miles of Wichita Falls, where they overtook the mules, roped together and being driven by the defendant, J. T. Milligan, who was riding a small bay pony. The tracks of the pony had also been noted alongside of the mules’ tracks from their discovery to the point where they were overtaken.

Five witnesses testified that they followed these mule and pony tracks from just outside the town of Ringling to the point where they found Milligan leading the mules, and that there could be no doubt that the tracks were made by the stolen mules and the pony whose rider was driving them.

The defendant did not take the witness stand, but two witnesses testified that he was at the home of a Mr. Walling on the night in which the mules were stolen, although on cross-examination these witnesses were not sure of the date. Two other witnesses testified they were with Mr. Milligan when he bought the mules from a man whom he met driving them along the road, and that he paid $300 for them.

The petition in error in this case contains but three assignments of error, namely: (1) The court erred in overruling the motion of plaintiff in error for a new trial. (2) The court erred in overruling the demurrer of the plaintiff in error to the evidence introduced by the defendant in error at the trial. (3) The court erred in overruling the objection of the plaintiff in error to the improper remarks in argument of the county attorney.

The grounds urged in the motion for- a new trial are practically the same as are urged in this appeal, and for the reasons hereinafter stated the trial judge properly overruled such motion.

On the question of the propriety of sustaining a demurrer to the state’s evidence, or directing a verdict of not guilty, it is well settled that where there is proof tending reasonably to sustain the allegations of the information, a trial court should not sustain such a motion and the question of fact should be submitted to the jury, under proper instructions. State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881; also see Skive’s Crim. Dig. 302.

The only remark of the county attorney to which an exception was saved by the defendant was in reply to an illustration made by defendant’s counsel, and commenting on the fact that the accused did not at the time of his arrest offer to take the arresting parties to the man from whom he claimed to have bought the mules only a short time before, and so prove his claims. Counsel for defendant excepted to the county attorney’s remark as commenting on the fact that the defendant did not take the witness stand, apparently misunderstanding the reference, and the county attorney explained that he was referring to the time of defendant’s arrest. The court refused to instruct the jury not to consider this remark, but did instruct them that they were not to consider the failure of the defendant to take the stand in arriving at their verdict. As we read the record, there was no error on this point.

Finding no error in the record, the judgment of the trial court is affirmed.

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