text:
    EUGENE WEATHERSBEE v. STATE.
    No. A-6860.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 989.)
    Thos. Hudgens, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant was convicted in the county court of Washita county, upon a charge of petit larceny, and was sentenced to pay a fine of $25 and costs. Motion for new trial was filed and overruled, and exceptions saved, and the defendant has appealed to this court.

The substance of the testimony of the state is that the defendant went to the place of business of Fleming & Balzer, a copartnership composed of H. R. Fleming and Arthur Balzer, and told Mr. Balzer he wanted a casing for his car. Mr. Balzer showed him the casing, and they agreed upon the price, and the defendant then asked him to put the casing on the car, and received the reply from Mr. Balzer that they were busy and did not have any one to put it on, and furnished the defendant with a jack and told him he could put the casing on the car himself. The defendant run his car into' the shade, as it was a very hot day, and the testimony shows he worked there for some time putting, the casing on his car. After he put the casing on, he returned the jack to the place of business and got in his car and drove away without paying for the same.

The testimony shows that when he was talking with Mr. Balzer about the casing he told him he was going to work for Mr. Fisher, who lived about three miles from the place of business of Balzer and his partner. When the defendant drove away, Mr. Balzer whistled to him, but the testimony fails to show that the defendant heard him whistling. The testimony tends to show that Mr. Balzer started out to follow him, but that he did not do so, and returned; later a complaint was made against the defendant for the larceny of the casing. The defendant was located several days thereafter down neear Weatherford, working for his father.

The defendant admits going to the place of business, and states they agreed upon the price of the casing and that he told Mr. Balzer he was going to work for Mr. Fisher, and that Mr. Balzer told him to put the casing on his car; he was working there for some time, and when he got the casing on he returned the jack to the place of business of Mr. Balzer and his partner, and got in the car and started back to Mr. Fisher’s, intending as soon as he worked a few days to get the money and pay for the casing.

The defendant further shows by his testimony that he did not work for Mr. Fisher, for the reason that one of his hands who was intending to leave decided not to leave and Mr. Fisher did not need an additional hand, and defendant went to his uncle’s place and hauled some wheat for a short while and returned to his father’s. The defendant denies any intent on his part to steal the casing or to get it without paying for it that he had been buying- on credit at Cordell and that he fully intended to pay for the casing that Mr. Balzer had told him to put on his car as they were too busy at the time to put it on for him.

This is, in substance, the testimony on behalf of the state and the defendant. The question to be determined in this case is, Is the testimony sufficient to sustain a charge of larceny? Section 210 C. O. S. 1921, defines larceny as follows:

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

It is contended by counsel that, under the definition of larceny contained in our statute, supra, the evidence is insufficient to sustain the verdict. Under our practice it is the peculiar province of the jury to weigh the testimony and pass on the credibility of the Avitnesses. On the other hand, it becomes the duty of the court to examine the record in Cases, and, if the verdict is not sustained by the evidence, to set the same aside. Without taking into consideration the defendant’s testimony, the testimony on behalf of the state wholly fails to' show that the taking of the casing under the circumstances detailed by the testimony is such a taking as amounted to larceny. The price of the casing Avas agreed upon between one of the prosecuting witnesses and defendant, and defendant was told to go and put it on his car. The defendant advised him he was working for Mr. Fisher, about three miles aAvay. The defendant Avorked.for some time putting the casing on, and then rested and got cool before driving away. There was no concealmeent in any way.

In Lockhart v. State, 10 Okla. Cr. 582, 139 Pac. 1156, 1158, the court said:

“Where the taking, is open, in the presence Of others, and there is no subsequent attempt to conceal the property, and no denial, and where possession is not obtained by force, trick, or stratagem, a strong presumption of fact arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a jury may legitimately infer a felonious intent.”

We hold that the evidence in this case is unsufficient to sustain a conviction of larceny. The judgment of the lower court is accordingly reversed, and the case remanded, with directions to dismiss.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    LEE JONES v. STATE.
    No. A-6980.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 988.)

      J. M. Bishop and C. S. Gilkerson, for plaintiff in error.
    The Attorney General, for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Beckham county, on a charge of murder, and was sentenced to the penitentiary at McAlester, for life. Motion for new trial was filed, considered, and overruled; exceptions saved; and appeal taken from the judgment and sentence of the trial court. Petition and case-made was filed in this court on April 14, 1928. Under the rules of this court where the appeal is not supported by brief it is assumed that the appeal has been abandoned or is without merit. The court will carefully examine the record to ascertain whether or not any fundamental or prejudicial errors were committed by the trial court.

The testimony on behalf of the state, in substance, tends to show that the deceased was living with his wife and children in one room of a two room house, and that the defendant was living with his brother, Argle Jones and wife, in the adjoining room. Some difficulty came up between the families. The wife of the deceased testified to having seen Lee Jones shoot her husband, and also testified that the brother of the defendant or some one struck her over the head with a gun. The testimony of the Doctor and other witnesses show that the wife of the deceased had a cut on her head and that the blood flowed freely. Argle Jones, a brother of the defendant, testified that when the trouble arose between the defendant and the deceased, the wife of the deceased came out of their room of the house with a shotgun, and that Jewel Jones, the wife of Argle Jones, got hold of it, and they scuffled over the gun, and finally the deceased got hold of the gun and wrenched it out of Jewel Jones’ hands. The brother of the defendant, Argle Jones, testified that the deceased wrenched the gun from the hands of Jewel Jones, his wife, and pointed it at him and told him he was going to kill him; that he reached back in the room of his house and got his gun and shot the deceased.

The testimony in this case is conflicting as to who fired the shot that took the life of the deceased. It was all submitted to the jury, and this court has repeatedly held that, where there is any competent testimony to go to the jury, though conflicting, it will not disturb the verdict.

We have carefully examined the record and find that the information charges an offense; that the evidence is sufficient to sustain the judgment; the court in its instructions correctly gave the jury the law as applied to the facts in the case; that the defendant was accorded a fair and impartial trial. Finding no prejudicial or fundamental errors in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    BUD BARCLAY v. STATE.
    No. A-7242.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 986.)
    S. R. Harper, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the. unlawful possession of whisky, and was sentenced to pay a fine of $100 and to serve thirty days in the county jail.

The record discloses that, at the time charged, certain officers found a keg containing about three gallons of whisky on a farm in the possession of defendant, between a quarter and a half mile from his house. Some tracks were there, but there is no evidence that they corresponded with the tracks of defendant. They were not followed nearer than a quarter of a mile to defendant’s house. Other persons were pasturing live stock on this farm and had access to it. The evidence is insufficient to sustain the judgment.

The case is reversed.


text:
    ELZA DALTON v. STATE.
    No. A-6838.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 985.)

      N. S. Corn, for plaintiff in error.
    The Attorney General, for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Dewey county on a charge df transporting intoxicating liquor from one place in the state to another, and was sentenced to pay a fine of $200 and be imprisoned in the county jail for 30 days; from which judgment he has appealed to this court.

The defendant has assigned 11 errors alleged to have been committed by the court in the trial of his case. The second and fourth assignments being as follows:

“2. ■ The court erred in continuing said case over the objections of the defendant from the July 1927 term of court until the 3rd day of October, 1927, the regular October term.
“4. The court erred in overruling the defendant’s motion to dismiss.”

After reading the record it is only deemed necessary to consider the second and fourth assignments of error. The facts disclosed by the record show that the defendant by information was charged with the crime of transporting liquor, which information was filed on the 17th day of April, 1927; that on the 5th day of July, 1927, the defendant appeared before said court and announced ready for trial and demanded an immediate trial; that said cause was continued over the defendant’s objection to the 3d day of October, 1927; on the 3d day of October, .1927, the defendant filed his motion to dismiss the cause, alleging the facts, in substance, as herein set out, and that his constitutional right to a speedy trial had been violated, and asked that the cause be dismissed. The statements of the defendant as contained in his motion was not controverted by the state. The defendant’s motion to dismiss was denied, and defendant reserved an exception, and urges as one of his assignments of error that the court erred in denying his motion.

The record further shows that after the information was filed, and on the 18th day of April, 1927, the defendant was enlarged upon bail, and at the time of his appearing on the 5th day of July, 1927, and demanding a trial and resisting a continuance, he was on bond.

Section 2913, C. O. S. 1921, is as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

This court in the case of Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736, held that the next term of court within the meaning of this section is the next term of court after the accusation is filed, and, if the accusation be filed during the term, the next term means the next ensuing term.

This court, in State ex rel. Davis v. Bayless, District Judge, 38 Okla. Cr. 129, 259 Pac. 606, held:

“The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge, under the constitutional provision (article 2, § 20).”

In Harris v. Ogden, 44 Okla. Or. 418, 281 Pac. 316, 317, the court said:

“Section 2913, Comp. St. 1921, supra, is intended to amplify and make effective the provisions of article 2, § 20, of the state Constitution, which guarantees an accused a speedy trial. This constitutional and statutory right, however, may be waived, and is waived when a defendant is on bail and agrees or acquiesces in the continuance of the prosecution against him. If he desires to avail himself of this constitutional and statutory right, he must demand a trial and resist a continuance of the. case.”

In this case it affirmatively appears that the defendant at all times appeared and demanded al trial and objected to the case being continued; and that the time fixed by the statute after the information was filed had expired; and that the case was not postponed on his' application. No cause for holding the defendant for a longer period without trial was shown. The motion of the defendant to dismiss was well taken, and it was error for the court to deny the same. The cause is remanded, with directions to the trial court to dismiss the case.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ED ROBINSON et al. v. STATE.
    No. A-7129.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 984.)

      Blake & Crossland and J. Earl Smith, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in, the county court of Pawnee county on a charge of having the possession of a still and were each sentenced to pay a fine of $500 and to serve six months in the county jail.

The judgment was rendered in May, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. The evidence is that at the time charged certain officers with a search warrant discovered a still in a house about 250 or 300 feet from the house in which defendants lived. The still was set up ready for operation, and defendants at the time stated that the still belonged to them and that they had been operating it. The evidence amply sustains the judgment. Defendants in addition to their plea of not guilty also pleaded former jeopardy, but offered no evidence in support of it other than an information which charged defendants with having the unlawful possession of whisky. The defendants did not take the stand, and there is no evidence that the charge in that case had any connection with the charge in this case, or that defendants had ever been placed on trial upon that charge. No reversible error is made to appear.

The case is affirmed.


text:
    ED ROBINSON et al. v. STATE.
    No. A-7128.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 984.)
    Blake & Crossland and J. Earl Smith, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Pawnee county on a charge of having the possession of 5001 gallons of whisky mash or wort fit for the manufacture of whisky, and were each sentenced to pay a fine of $50 and to serve 60 days in the county jail.

The case was tried in May, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. The defendants did not take the stand and offered no> evidence. No> error requiring a reversal is made to appear.

The case is affirmed.


text:
    JACK BRADLEY v. STATE.
    No. A-.........
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 983.)

      H. L. Fogg and J. A. Rinehard, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of unlawfully manufacturing intoxicating liquor and his punishment fixed at a fine of $50 and to be confined in the county jail for 30 days.

The defendant complains that the information is insufficient to charge an offense. The information alleges:

“* * * That one Jack Bradley, late of the county of Canadian and state of Oklahoma, on or about the 9th day of August in the year of our Lord one thousand nine hundred and twenty-six, at and within the said county and state, did then and there willfully, unlawfully and wrongfully manufacture intoxicating liquor, to wit, Choctaw beer, the said beer being then and there capable of being used as a beverage and manufactured by him the said Bradley as aforesaid by placing a certain mixture of yeast, raisins, sugar, water and other ingredients, all of which are unknown to informant and the exact proportions of which are to informant unknown, in a large container and fermenting the said mixture for beverage purposes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Section 7002, C. O. S. 1921, provides:

“* * * Or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind -or description whatsoever, whether medicated, or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage. * * *”

In charging the offense under this section, prohibiting the manufacture of liquors or compounds other than spirituous, vinous, fermented, or malt liquors, it is necessary to allege that such liquors or compounds contain more than one-half of 1 per cent, alcohol measured by volume. Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 Pac. 179; Wortman v. State, 9 Okla. Cr. 440, 132 Pac. 358; Grill v. State, 20 Okla. Cr. 39, 200 Pac. 882; Coleman v. State, 39 Okla. Cr. 149, 263 Pac. 676.

The information being, insufficient to state an offense, the cause is reversed.


author: EDWARDS, P. J.

text:
    LILLIAN McDOWELL v. STATE.
    No. A-6698.
    Opinion Filed Aug. 10, 1929.
    Rehearing Denied Nov. 2, 1929.
    (281 Pac. 600.)

      Frank B. Grant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Attv. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of preventing, a witness from attending court, and was sentenced to serve a term of six months in the state penitentiary and to pay a fine of $500.

The record discloses that one George Gregg was charged with an offense in the county court of Kay county, and that Robert Chambers was a material witness for the state, and had been subpoenaed to attend the trial, and that defendant dissuaded and prevented said witness from attending court, and procured the witness to go outside the state at the time of the trial, in violation of the provisions of section 1647, Comp. Stat. 1921. There is no particular controversy as to the facts, nor claim that the evidence is insufficient.

It is first contended that the county attorney was guilty of misconduct in asking questions attacking the character of defendant, when she had not put her character in issue. It is well settled that the; state cannot attack the character of a defendant, unless first put in issue by defendant. Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Wilkerson v. State, 9 Okla. Cr. 662, 123 Pac. 1120. The county attorney sought to show the interest or connection of defendant with Gregg, the defendant in the case in the county court in which the witness Chambers was subpoenaed. This line of evidence tended to corroborate Chambers, the principal witness for the state, as showing a motive for defendant’s efforts to prevent the witness Chambers from attending court in response to subpoena. While the county attorney may have overstepped the line to some extent, under all the circumstances his action is not reversible error.

It is next contended that Chambers, the witness dissuaded and prevented from attending court by defendant, was an accomplice, and that his evidence must be corroborated. Under section 2701, Comp. Stat. 1921, a conviction cannot be had on the testimony of an accomplice, unless corroborated by some other evidence which tends to connect defendant with the commission of the offense charged. Is a person subpoenaed as a witness, who is dissuaded or prevented from attending court under the provisions of section 1647, Comp. Stat. supra, an accomplice of the person dissuading or. preventing his attendance? The rule is generally stated that the test to determine when a witness is an accomplice is to ascertain whether he can be indicted or informed against for the offense for which accused is being tried. Certainly, the witness Chambers could not be indicted for preventing or dissuading himself from attending court after having been subpoenaed. He is not an accomplice. See, in this connection, 12 Cyc. 445-448; 16 C. J. 670, § 1344, F; Young v. State, 7 Okla. Cr. 359, 123 Pac. 699; Buttry v. State, 18 Okla. Cr. 330, 194 Pac. 286; Sowards v. State, 37 Okla. Cr. 307, 258 Pac. 284.

The case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.


author: CHAPPELL, J.

text:
    C. C. TATE v. STATE.
    No. A-6823.
    Opinion Filed Oct. 5, 1929.
    Rehearing Denied Nov. 2, 1929.
    (281 Pac. 820.)
    Wallace & Wallace, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was prosecuted in the district court of Creek county on a charge of murder, the jury finding him guilty of manslaughter in the second degree and fixing, his punishment at imprisonment in the state penitentiary for 2 years.

Defendant was city marshal of the town of Mann-ford in Creek county and claimed to be a deputy sheriff. He at the time of the commission of this homicide was patrolling the state highway, known as the Albert Pike highway in the vicinity of Mannford. The deceased was a young man about 21 years of age who had gone to Tulsa with two of his brothers and three other boys on April 13, 1926, in two Ford roadsters. They were returning to their homes in the neighborhood of Yale in Payne county when this homicide occurred. The theory of the state seems to have been that the deceased and the other boys with him were at most engaged in the commission of a misdemeanor in driving their automobile in a reckless manner and at a reckless rate of speed, and that the defendant was not legally warranted in firing at the driver of the car in order to make arrests or to stop the flight of the parties.

The theory of the defendant was that the deceased and his companions were engaged in the commission of a felony by driving their automobiles on the public highway while intoxicated, and that the defendant, being warned of their approach and of their intoxicated condition, attempted to intercept them and arrest the deceased and his companions, and that the deceased and his companions fled from the officer, and that the officer fired at a rear tire of the car the deceased was riding in, the bullet struck the pavement and glanced upward and struck the deceased, killing him. The defendant contends that he was in the legal discharge of his duty as a public officer and that the killing was accidental, though justified by all the facts in the case. The issue made by the state and the issue made by the defendant were submitted to the jury by the court under proper instructions and the jury found the issues of fact against the defendant.

Defendant complains that the court erred in giving instructions Nos. 4, 5, 10, 11, 12, 13, 14, the first, second and third paragraphs of No. 15, and No. 16. It was not mandatory that the trial judge state affirmatively defendant’s theory of the case in any particular instruction. It was sufficient if the court in the general charge covered the defendant’s theory of the case. Instructions 12, 13, and 14, considered together, apply the theory of law of the defense to the evidence of the defense in this case. It is well established that the instructions must be considered and construed as a whole. The charge is not to be condemned because a single paragraph fails to contain all of the law of the case, but the entire charge is to be considered as if it were but a single statement of law, and if, when so considered and construed, it fully and faiirly covers the law of the case, it is sufficient and neither party may justly complain of the incompleteness of any paragraph thereof. McKenzie v. State, 11 Okla. Cr. 554, 149 Pac. 911; Rogers v. State, 15 Okla. Cr. 434, 183 Pac. 41; Mathews v. State, 16 Okla. Cr. 446, 184 Pac. 468; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Ned v. State, 29 Okla. Cr. 389, 233 Pac. 1096; Guerin v. State, 43 Okla. Cr. 172, 277 Pac. 601.

The defendant next contends that the court erred in refusing to give defendant’s requested instructions Nos. A, B, and C. It was not error for the trial court to refuse the requested instructions of the defendant where the general instructions fairly covered the law of the case. Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168.

The defendant next complains that the court erred in admitting the evidence of the witness Ralph Morey and one Burt, concerning certain experiments made by them in firing the pistol used by the defendant and loaded with leaden bullets in the public highway at approximately the point where the evidence showed this killing occurred. These tests were made to indicate the height to which the leaden bullets would ricochet when fired from said gun at said pavement at different distances from a canvas covered board set upright upon the pavement. The particular objection now urged to the admission of the testimony of these witnesses was that they were not experts in the use of firearms, and that the experiments were not made under like conditions on like materials with similar apparatus and under like circumstances as existed at the time of the homicide. The witness Morey was permitted to testify without any objection having been made by defendant’s counsel. It was not until the witness Burt was testifying that counsel first objected to this line of evidence. The witness Morey detailed the conditions under which these experiments were made; the witness Burt giving the result of such experiments as taken down by him at the time. All of this evidence was introduced in rebuttal. The defendant had called one Harry Brill, an alleged rifle expert, who testified in answer to certain hypothetical questions put to him by defendant’s counsel as to the probable results of the courses of bullets fired into a pavement from a pistol at different distances, and also testified to the results of certain experiments made by him with a pistol on a pavement in Tulsa county many miles from the scene of this homicide. Counsel for the defendant first opened the door to an investigation of this kind and laid the foundation for rebuttal evidence of the state along the same lines. Neither the witness Morey nor Burt were asked or expressed any opinion as to how the defendant shot the deceased; that is, whether the bullet tiiat killed the deceased, in their opinion, ricocheted from the pavement or went directly from the pistol into and through the back of the automobile and into the back of the neck of deceased. These witnesses were only permitted and only testified to the facts of the conditions under which these tests were made and identified the physical evidence of the results of such tests. The evidence given by them was not the opinion evidence of experts. This, was experimental and not expert evidence and the inferences to be drawn from the physical results of such experiments introduced in evidence were left to the jury and not to the witnesses.

In Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, this court in passing upon similar questions said:

“Evidence of experiments made out of court, and not in the presence of the jury, is admissible upon the same principle that the experiments themselves may be conducted in the jury’s presence. * * * Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine. * * * If the evidence shows that the experiments were made under circumstances approximately similar to those which surrounded the original transaction and such experiments would serve to shed any light upon that transaction, it would be admissible, althongh such experiments might not have been made under exactly similar conditions as attended the original transaction. The results of such experiments are not conclusive, but are mere circumstances to be considered with the other evidence in the case, and are to be weighed and determined by the jury.”

The state introduced the physical results, the facts of these experiments, and left the conclusion and inferences to be drawn from such demonstrative evidence for the jury, because the results of such experiments could be determined without special skill and the testimony given by Morey and Burt did not amount to expert evidence. The defendant assigns numerous other grounds of error, but they are all without sufficient merit to justify special discussion in this opinion.

It is well settled in this state that a peace officer without a Avarrant may make an arrest for a felony Avhere the same is being committed in the presence of the officers or Avhere the felony has actually been committed and the officer has reasonable and probable grounds for believing, the persons he attempts to arrest have committed a felony, or where, having committed a felony, they are fleeing from arrest, the officer has a right to use all reasonable force necessary to make the arrest, even to the extent of shooting and killing. Section 2471, C. O. S. 1921; Altizer v. State, 21 Okla. Cr. 229, 205 Pac. 1106; McDaniels v. State, 36 Okla. Cr. 313, 253 Pac. 1041.

In the case of Ex parte Finney, 21 Okla. Cr. 103, 205 Pac. 197, this court said:

“Peace officers, having, or assuming to have, authority to make arrests without a warrant, must exercise such authority with discretion, as the law directs, so as not to jeopardize the lives and lawful pursuits of innocent people. Peace officers are as much amenable to the law as other persons, and they must not use their official authority as a cloak to violate the law. Even where a suspected person has committed a felony, an officer will not be justified in taking life where the arrest can be made without violence.
“Where officers or others have authority to make arrests upon suspicion that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that suspicion. Suspicion without cause can never be an excuse for such action. .The two must both exist and be reasonably well founded. A peace officer will not be justified in killing a person sought to be arrested who fled from him, where the officer acted on .a mere indefinite suspicion, and no felony had in fact been committed.”
“Where officers or others have authority to make arrests upon suspicion that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that suspicion. Under such circumstances the officer must not act arbitrarily, but must exercise his discretion in a lawful manner, using all reasonable means to avoid mistakes.”

In the case at bar the evidence discloses that the young man killed was not driving the car, but was merely a passenger. The evidence was conflicting as to whether the deceased had taken a drink and as to whether or not he was aiding arid abetting, the driver of the car in the commission of a felony. The theory of the state that the killing was illegal and unauthorized, and the theory of the defendant that the parties were in the commission of a felony and that defendant only used the necessary force to make the arrest and that the killing was accidental, were properly submitted to the jury by the instructions of the court. The jury found the defendant guilty of manslaughter in the second degree and fixed his punishment at imprisonment in the state penitentiary for two years.

This appears to be a case where a public officer exceeded his authority and himself violated the laAV in his attempt to enforce it. This court is anxious to aid public officers of the state in the discharge of their legal duties, and will do so Avhenever possible; but where an officer ’ sworn to enforce the law himself violates it, the fact that he is an officer does not entitle him to any more consideration at the hands of the court than if he were only a private citizen. If an officer violates the laAV he must be punished the same as any other citizen.

The verdict of the jury being supported by sufficient evidence, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    JOHN WHITE et al. v. STATE
    No. A-6805.
    Opinion Filed Oct. 5, 1929.
    Rehearing Denied Nov. 2, 1929.
    (281 Pac. 824.)
    Jno. J. Carney, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance by keeping a place where intoxicating liquors were kept for sale and where persons congregated for the purpose of buying and drinking intoxicating liquor. Their punishment was fixed by a jury at a fine of $250 for each of them, and each to be confined in the county jail for a period of 90 days.

The evidence of the state is: That W. P. Lindsay and H. O. Brown, deputy sheriffs, arranged with two boys, Fishburn and Turner, to purchase liquor from the defendants at their premises; that these boys went and arranged for the purchase of the whisky and returned in the evening about 8 o’clock accompanied by these officers to receive the liquor and pay for the same. This being at a public place, the officers were not at the time trespassers. That the witness, Lindsay, stood outside of the window and saw the defendant Mrs. White deliver the half gallon of whisky to the boys and rushed into the house, served the search warrant on Mrs. White, and seized this whisky. That Mr. White came in the room with his shotgun threatening the officers, and that they arrested him, and then, making a further search of the premises, found, a half gallon of whisky hid under the back porch of the residence.

The defendants first complain that the affidavit for the search warrant was insufficient; while the affidavit is not a model, it contains enough facts to authorize the issuance of the search warrant. The fact that the officer witnessed the sale and delivery of the liquor authorized the seizure of the same, even if. the affidavit had not been sufficient. After the arrest of the defendant White, who was the proprietor of the place, for an offense committed in the presence of the officers, a legal search could be made, and the motion of the defendant to suppress the evidence was properly overruled.

The defendants next contend that the description of the premises in the search warrant was insufficient. It is often impossible to give an exact description of the premises located on the edge of a city and on a paved highway. In this case, the description reads:

“The White Street filling station and residence on the Norman car line, being the first two buildings north of the Hoover dance hall.”

In the case of Herring v. State, 43 Okla. Cr. 190, 277 Pac. 683, this court .said:

“The description of the premises to be searched is sufficient, where it enables the officers executing, the search warrant to locate the premises to be searched without the aid of other information, except that contained in the search warrant.”

The description being sufficient to enable the officers to locate the premises described, the objection was properly overruled. The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    JIM CONTI v. STATE.
    No. A-6839.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 182.)

      Harris & Lackey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to in this opinion as the defendant, was by information charged with the unlawful possession of spirituous, fermented, malt and intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $100, and be imprisoned in the county jail for 30 days, from which judgment and sentence the defendant has appealed to this court.

The testimony on behalf of the state shows that the sheriff and his deputies went to the home of the defendant with a search warrant to search his premises, and found a half gallon of choctaw beer in the room adjoining the house, and went to the barn and found a twenty-gallon jar which was about half full of choctaw beer, and another half gallon in a jar. The testimony shows the officers tasted some of the beer and stated it was intoxicating.

The wife of the defendant was called and testified that she made the choctaw beer the officers found for her own nse; that she drank it for her health; she further stated they farmed, raised chickens and a few hogs. This is, in substance, all the testimony we deem necessary to set out.

The defendant has assigned several errors alleged to have been committed by the trial court; the second error assigned by the defendant being, as folloAvs:

“That the court erred in overruling his motion to quash and hold for naught the warrant of arrest based upon the information filed herein, for the reason that the said pretended Avarrant of arrest was issued, signed and served without any authority of law and conferred no jurisdiction upon the trial court to try this plaintiff in error.”

The information in this case was filed on May 9, 1927, and on the same day the warrant of arrest was issued by the court clerk of Pittsburg county, Okla., upon which, the defendant was arrested and the return of the officer filed on the 9th day of May, 1927. The record further shows that on the 9th day of May, 1927, the defendant was brought before the county judge of Pittsburg county for arraignment on said charge of possession of intoxicating liquor, and entered his plea of not guilty to the charge, and on the same day was released on bond.

On September 20, 1927, the defendant appeared in open court and filed his motion to exclude the evidence secured by reason of the search warrant, and quash the Avarrant of arrest, AAdiich motion was by the court overruled, and defendant excepted. If the defendant had filed his motion to quash the warrant of arrest prior to his arraignment and plea of not guilty, his plea would have been well taken and should have been sustained.

In Bowen v. State, 5 Okla. Cr. 605, 115 Pac. 376, this court in the syllabus, said:

“The clerk of a county court has no power to issue a ‘warrant of arrest’ for a defendant, based upon an information filed in said court; and, where a motion is made in apt time to set aside a warrant so issued, it should be sustained by the court.”

The court in its opinion says it is true the defendant can voluntarily come into court and waive the issuance of the warrant of arrest, or, if the warrant has been improperly issued and defendant does not object thereto, but voluntarily submits to the jurisdiction of the court, he cannot afterwards be heard to complain of the illegality of his arrest, and that the court did not acquire jurisdiction of his person.

In Morrison v. State, 31 Okla. Cr. 11, 236 Pac. 901, the court says:

“Complaint is also made that the record does not show the filing of any verified complaint, nor the issuing of a warrant. Neither does the record show that any objection was made to any irregularity of the proceeding prior to the arraignment of the defendant, or the information and his plea of not guilty thereto. So even if the warrant of arrest were illegal and no objection was made in apt time before plea to the information, the objection, if it had any alidity, is waived.”

In this case, if the defendant desired to quash the warrant of arrest, he should have filed his motion before being arraigned and entering his plea of not guilty. His voluntary appearing and plea of not guilty waived his right to question the validity of the warrant of arrest.

It is next contended by the defendant that the court erred in not sustaining his motion to exclude the evidence secured by means of the search warrant. An examination of the application for the search warrant shows that the statements in the application were positively sworn to, and was sufficient to justify the magistrate in issuing the search warrant, and the court did not commit error in overruling the motion of the defendant to suppress the evidence.

The other errors assigned by the defendant are without merit. The evidence is sufficient to sustain the judgment.

The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    HARRELL v. GRUNERT, County Judge.
    No. A-6888.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 181.)
    Sigler & Jackson, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in mandamus to require the county judge of Carter county to dismiss an action for failure to give petitioner a speedy trial. Since the filing of this action, the county judge, it appears, has dismissed the action, pending in the county court of Carter county. This proceeding is therefore moot.

The case is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


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    FRANK MATTHEWS v. STATE.
    No. A-6881.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 180.)
    Frank B, Grant, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of transporting whisky, and was sentenced to serve 30 days in the county jail and to pay a flue of $50.

The record discloses that at the time charged two policemen, about 2:30 in the afternoon, stopped defendant, who was driving an automobile, and one of them got in the car with him and directed him to drive to the police station. On the way there he discovered in the shirt or pocket of defendant a pint of whisky. Before entering upon the trial, defendant filed a motion to suppress this evidence as obtained by an unlawful search, which was overruled. The state’s witnesses testified as follows:

“Q. What was the defendant doing when you flagged him down? A. Driving along.
“Q. Was he driving reckless? A. No, sir.
“Q. Was lie drunk? A. No, sir.
“Q. Did hie violate any law in your presence? A. No, sir.
“Q. You just flagged liim down? A. Yes, sir.
“Q. And lie stopped? A. Yes, sir.
“Q. You told him to come along to the police station? A. Yes, sir. I told him to come and get in our car and come to the police station.
“Q. Did you have a warrant of arrest? A. Not with me then, no, sir.
“Q. Did you serve a warrant on the defendant telling him that he was arrested? A. No.
“Q. For any particular crime? A. No. I didn’t have a warrant at that time. * * *
“Q. And you took him down to the police station? A. Yes, sir.
“Q. Did you serve him with a warrant down at the police station? A. No, sir.
“Q. Did any other officer serve him with a warrant? A. Not that I know of.
“Q. Was he arrested down there for any particular charge but this charge? A. Not that I know of.
“Q. You just took him upstairs and put him in jail? A. Just took him upstairs, yes, and put him in. * * *”

The defendant was a married man with a family. From the record it does not appear that there was even any suspicion that defendant was violating any law. He was simply driving along the street like any ordinary citizen. The stopping of him on the street in the manner shown by the record was not a legal arrest. The right of a peace officer to arrest without a warrant is limited to the grounds enumerated in section 2471, Comp. St. 1921, and sections immediately following. Except as authorized by these statutes, an arrest without a warrant is illegal. 5 C. J. Arrest, § 23, pp. 395, 396, and authorities cited.

The taking a pint of whisky from the person of defendant was in violation of the Constitution and statutes prohibiting unreasonable searches. Skinner v. State, 11 Okla. Cr. 271, 280 Pac. 851.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


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    NORMAN LOLLAR v. STATE.
    No. A-6897.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 180.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $100 and to serve 90 days in the county jail.

The record discloses that, at the time charged, one Hanna, a witness for the state, by previous arrangement with the chief of police, called defendant, who in a few minutes came to the Hanna residence, took Hanna in a car, and went out in the country a mile or two, and returned to the Hanna residence. The officer, who was waiting there, arrested defendant and took a pint bottle of whisky out of the front of his shirt, which he testified was visible before he arrested defendant. The defendant did not take the stand, and offered no testimony. There appears to be no question of his guilt.

The principal contention made is that the taking of the whisky from the person of defendant without a warrant, or a search warrant, was a violation of the constitutional and statutory provisions against unreasonable searches. Under the record, the contention cannot be sustained. It is further argued that there is no evidence of an intent to sell. The circumstances clearly refute the contention. No reason for a reversal is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    E. E. TRIPLETT v. STATE.
    No. A-6903.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 179.)

      M. E. Hudson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county on a charge of transporting whisky and was sentenced to pay a fine of $100 and to serve. 30 days in the county jail.

The record discloses that at the time charged defendant went to the store of one Kennedy and put a pint of whisky on the shelf in a back room. Before placing the whisky there he was seen to talk with Kennedy, whom the evidence discloses was a user of intoxicating liquor. There appears to be no question of the guilt of defendant. The contention is made that there is no evidence that the whisky was transported from any place unknown to the store building of Kennedy. There is no direct and positive evidence of this fact, but it is self-evident that, if defendant deposited the whisky there, it must have been transported from some other place.

It is next argued that the court erred in failing to give a requested instruction on circumstantial evidence. The case does not depend on circumstantial evidence alone, and therefore it was not error to refuse the instruction.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    G. W. SCHULL v. STATE.
    No. A-7017.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 178.)
    Walter Matthews, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error hereinafter referred to as the defendant, was by information charged Avith manufacturing spirituous liquor, to wit, whisky, contrary to the statute of the state of Oklahoma, was tried and found guilty of attempting to manufacture whisky as charged in the information, and his punishment fixed at a fine of $50 and imprisonment in the county jail of Payne county for 30 days. Prom the judgment and sentence the defendant has appealed to this court by transcript of the record.

The defendant has assigned as errors committed by the trial court: First, the court erred in giving to the jury instruction No. 4; second, the verdict of the jury and judgment of the court are not sustained by the pleadings and the law. Both of these assignments present the same question; the only question raised by the transcript that needs to be considered by this court is whether or not the defendant charged with the commission of an offense may under the evidence and proper instructions of the court be convicted under section 2297, C. O. S. 1921, of an attempt to commit that offense.

In this case the instructions of the court complained of by the defendant advised the jury that if it entertained a reasonable doubt of the guilt of the defendant of manufacturing whisky as charged in the information, and believed beyond a reasonable doubt that the defendant was guilty of an attempt to commit the offense of manufacturing whisky, that the jury should so find by its verdict and convict the defendant of an attempt to manufacture whisky, and then gave the jury the law as to what is necessary to constitute an attempt to commit an offense.

It is urged by the defendant that since the enactment of chapter 42, Session Laws of 1923-24, the defendant could not be punished for an attempt to violate the prohibitory liquor laws, as that act provides:

“It shall be unlawful for any person, or persons, within this state, to manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.” (Section 1.)

With this contention we cannot agree. The court properly instructed the jury as to the law. The Session Laws referred to in no way repeal section 2297, C. O. S. 1921.

In Fowler v. State, 26 Okla. Cr. 170, 223 Pac. 206, in the second paragraph of the syllabus, this court said:

“On trial of an information for manufacturing intoxicating liquor, the court instructed the jury, in effect, that the evidence was insufficient to show defendant was guilty of the offense charged, and submitted the issue of attempt to commit the offense charged, and the punishment prescribed for an attempt to commit the offense. The verdict was, ‘Guilty as charged in the information herein, and assess his punishment at a fine of $225 and imprisonment in the county jail for 60 days.’ Held, that the verdict was sufficiently definite and certain as to the offense for which the defendant was convicted.”

In this ease the court properly instructed the jury as to the law of manufacturing intoxicating liquor, and an attempt to manufacture liquor. Under the instructions of the court as to the law the jury returned a verdict of guilty of an attempt to manufacture whisky, which verdict amounts to an acquittal of the charge of manufacturing whisky. The information was sufficient to advise the defendant of the crime with which he was charged, and there is no prejudicial error shown by the transcript.

The judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    HOMER PENDARVIS v. STATE.
    No. A-6847.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 178.)

      Ray & Thomas, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $250 and confinement in the county jail for a period of 90 days.

Defendant complains, first, that the court erred in overruling his motion to suppress the evidence because of the insufficiency of the affidavit for the search warrant. The affidavit, after describing the premises to be searched' and that whisky, beer, and wine are kept at the premises, says,

“It is a place of public resort, the place has been searched on several occasions and I nearly always found intoxicating liquors there; I have arrested drunks there in the house and in the yard.”

The facts stated in the affidavit were sufficient to authorize the issuance of the search warrant and the search of the premises.

The witnesses for the state testified that on a search of defendant’s premises they found a gallon and a half of wine in the ice box and a 16-gallon crock about three-fourths full of beer in the barn. Some of the witnesses qualified and testified that the beer was intoxicating. They further testified that they had raided the place on numerous occasions and had always found intoxicating liquors except one time; that they had arrested drunk people in the house and in the yard and had seen numerous drunken people coming away from defendant’s premises; that it was a place where people congregated for the purpose of drinking intoxicating liquors and had the reputation of being such a place. All this evidence was offered for the purpose of showing that the place was a place of public resort and for the purpose of establishing the reputation of the place and also for the purpose of establishing the intent of the defendant with respect to the liquor seized.

The evidence was sufficient to support the verdict of the jury, and the objections of the defendant to the introduction of the evidence on account of the insufficiency of the affidavit for the search warrant was properly overruled.

The cause is therefore affirmed.

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


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    HUGH RUSSELL v. STATE.

      No. A-6825.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 176.)

      C. H. Madden, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error hereinafter called the defendant, was charged by information of possession of intoxicating liquor, to wit, home brew, containing more than one-half .of 1 per cent, alcohol, measured by volume, capable of being used as a beverage, with the unlawful intent then and there on the part of the said defendant to violate the prohibitory liquor laws of the state of Oklahoma, Avas convicted and sentenced to pay a fine of $500, and to be imprisoned in the county jail for a term of six months; from which judgment the defendant has appealed.

When the case Avas called for trial on the 5th day of July, 1.927, it Avas shown that Hon. C. H. Madden, county attorney, Avas the attorney for the defendant, and was disqualified from acting as county attorney. The court appointed Hon. Baymond Barry, special county attorney, for the purpose of trying the case. Both sides announced ready for trial.

The testimony on behalf of the state shows in substance that E. T. Smith, the sheriff, went out to this defendant’s home and searched the defendant’s home, and found 53 pint bottles and two 6-gallon crocks of home breAv; he had a search Avarrant. Other witnesses testified as to the quantity of home brew found at the defendant’s home Avhen it was searched. The testimony of the chemist, Onis George Hazel, showed that some of the contents of tlie bottles analyzed tested 4.85 per cent, alcohol, measured by volume.

Lawrence Newman, called as a witness for the state, testified he went to defendant’s home and asked him for something to drink;

“They brought something in sacks, I could not see, we could hear the bottles rattle; we told him we wanted something, to drink and he said it was three bottles for $1, and we paid him for all we received, $4 in all. I don’t know whether his residence is a private residence or not. When we left the defendant’s residence there was a little bridge you have to go over, and Mr. Nance got on the car; it was hardly a quarter of a mile, about an eighth of a mile, I could not say for sure, and we went to the court house.”

P. C. Grissom testified to being with the sheriff when the house was searched and what was found. At the close of the state’s testimony, the defendant demurred to the same, which was by the court overruled. The defendant testified in his own behalf in substance that he lived about seven miles north of Hollis; that he owned the premises described in the search warrant; it had been his residence since the spring of 1914:

“I have not been in the habit of having public dances up there.”

He had heard about the rumors at the courthouse; he had heard about what officers said about the defendant’s wife and himself, which did not tend to admit or deny the question as to whether or not he had possession of the intoxicating liquor charged in the information.

At the close of all the testimony Mr. Madden, representing the defendant, said:

“Your Honor, I wish the court would instruct in regard to the facts necessary to sustain that search warrant.”

It appears from the record that the defendant filed a motion for a new trial, which was by the court overruled, .and defendant duly excepted. Defendant in his petition in error contends that lie should be granted a new trial for the following reasons:

“1. Error of law occurring during the trial.
“2. Error of the court in permitting the state to reopen its case twice over the objection of the defendant.
“3. Error of the court in overruling the demurrer of the defendant to the testimony of the state.
“4. Error of the court in overruling the objections of the defendant to certain evidence introduced by plaintiff.
“5. Error of the court in permitting the evidence secured under illegal search and seizure to be introduced by the plaintiff over the objections of the defendant.”

An examination of the application for the search warrant in this case shows that the statements contained in the application were sufficient to justify the magistrate in issuing the search warrant.

This court, in the case of Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, 452, held:

“The purpose of a verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

In this case the affidavit states in positive terms the material provisions of the statute to justify the officer in issuing the search warrant and the objection of the defendant to the introduction of the testimony secured by the search warrant was properly overruled.

From an examination of the evidence contained in the record we hold that it was sufficient to sustain the conviction and the demurrer of the defendant to the evidence was properly overruled. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law. The errors complained of are without sufficient merit to warrant a reversal of this case.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    JIM LANSDALE v. STATE.
    No. A-6842.
    Opinion Filed Nov. 2, 1929.
    (282 Pac. 170.)

      I. L. Cook, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted in the district court of Atoka county on a charge of stealing hogs, and was sentenced to imprisonment in the state penitentiary for two years. Motion for new trial was filed, considered, and overruled, exceptions saved, and the case appealed to this court.

The substance of the state’s testimony is as follows:

O. T. Armstrong stated he knew the defendant, Jim Lansdale; that on or about the 17th day of February, 1927, he lost four hogs. Witness described the hogs, and stated the hogs ranged over on Grassy Hollow, close to the mouth of Little Caney. Grassy Hollow is in Atoka county. The defendant lives in Atoka county.

“I found the hogs in a pen in this town. I got the hogs back. I did not give Jim Lansdale or any one else permission to take the hogs out of that county, nor did I sell them to any one. Defendant has been living in about two miles of me for more than a year. He was living in this country before I was. I have seen him out on the range. He was inquiring about some hogs at one time. My hogs was marked ‘crop split to left, and underslope and under-bit to the right.’ I have been using this mark about 18 months, right close to 2 years. I have seen other hogs with the same mark around there since my hogs were taken. Prior to the time my hogs were taken, I had not seen this mark on any hogs but mine.”

On cross-examination witness stated that prior to getting the mark up he used his father’s mark, which was “crop split to left and overslope to the right.”

“I put the underbit to make the difference between my hogs and my father’s hogs. I have known Frank Tomlinson 9 or 10 years. He has had hogs and cattle out there all the time. I guess he has hogs. I have seen the cattle, and seen his hogs. Tomlinson has several marks out there. He has one mark ‘crop and underhalf crop on the right and swallow fork underhalf on the left.’ This mark is on Tomlinson’s cows. I don’t remember how many of his cattle I saw. I saw a hog at Jim Patterson’s with that mark on it. My mark is not recorded. I have had my father’s mark recorded since this arrest. I forget the mark Jim Lansdale was looking for when he was over at my place last spring. He had some hogs on the half with a fellow named Coss, I believe. No, I don’t remember the mark; he said some was branded J on them; in a joking way I did say I would have to get the Lansdale boys in the penitentiary or they would get me there. I said somebody stole my hogs; we are going to have to find out who it is; if you prove yourself innocent, you will prove me guilty. I could not tell the jury exactly how I stated it.”

On redirect examination witness stated in the preliminary trial defendant and other parties charged with him “tried to insinuate that I was stealing hogs.” On reeross-examination the witness stated:

“I do not spend all my time on the range; I am working in the field; I farm. I am not farming this year, but usually. I have been working. I have made a field hand ever since I was seven years old; last.year I spent a part of the time on the range. I am now staying at home, taking care of my hogs and breaking some land for another crop year. I have 15 hogs at home; they run from 125 to 10 pounds.”

C. G. Heard, called as a witness for the state, said he lived at Stringtown. He bought seven head of hogs, one red and six spotted like shoats, from Frank Tomlinson in February, 1927. They had, been fresh-marked.

“I noticed one of them had its ear cut pretty near off. The condition of the ear did not arouse my curiosity. I asked Uncle Frank why he had cut the ear, and he said the boys had just traded for them, find had just remarked them’. I paid him for the hogs; he called for the weight of the shoats, said he wanted them to show to the boys. The seven hogs came to something like thirty some odd dollars.” ■

On cross-examination he stated that Mr. Tomlinson had said the boys had been trading.

“I have known him about seven years. I could not say how long I'have been acquainted with him.”

Will Beck testified in substance that he knew the defendant, Jim Lansdale; he had been living in and around the country where the witness had been for 15 or 20 years. Frank Tomlinson had been living in the country for about 12 years.

“On the 17th day of February, I saw the defendant and Bill Lansdale down in the vicinity of Grassy Hollow. I was going over to a man’s by the name of Patterson to try to buy some hogs; as I passed along the road I saw Mr. Brumley, this defendant, and his brothers, Bill and Virgie, standing at the side of the road. I took it to be Jim hollowed to me, and I rode to where they were, and Jim, this defendant, said he was hunting for some hogs that belonged to Uncle Frank Tomlinson. He said some were marked ‘crop in the left ear and possibly a split’; I saw some hogs near there, and Jim asked me if I knew whose hogs they were. I told him I did not; I was not familiar with the marks at that time. After that I saw a sow and several pigs, some black and some black with white spotted pigs in that" vicinity. I took it to be the same hogs I saw the next morning in Frank Tomlinson’s wagon about 9:30 or 10 o’clock. Mr. Tomlinson’s wagon was at a blacksmith shop of old man Holders, at Potapo Neck, on the road going west. I did not know Frank Tomlinson’s mark at that time. Mr. Tomlinson gave my little girl a listed sow, marked with a smooth crop and split to the left and an underslope and underbit to the right. He had a sow and six.shoats running around the house and yard all last winter. They were pretty good shoats, and this one was one of the hogs and unmarked at the time, and some time in March or April the hogs was marked. I do not know of any other parties that Frank Tomlinson has made a present of a hog since the trial.”

On cross-examination, witness stated there was nothing peculiar about Mr. Tomlinson giving his little girl a hog.

“I have three cows of his, milking them, this summer; two cows marked with a smooth crop and split in the left ear and overslope and underbit in the right, and one is marked with a smooth crop and split in the left ear; don’t know how long these cows marked with the overslope and underbit was marked, but seems to have been when they were young. I did not say the defendant came to the Patterson house and asked me about the mark on the hogs. He asked me about the smooth crop, and possibly a split in the left ear; there was nothing else about it, and I told him I did not know who gave the mark. We came on up the road, and Uncle Frank Tomlinson’s dog was with them. I did not see the defendant any more that day. After I left Mr. Patterson’s, I saw six or eight shoats, did not count them; they were sandy spotted and black, looked like one of their ears was cut off. I could not tell the ones that had the ear from the one that had the ear cut off. I could not tell whether the ears had been recently cut off or not; they did not look to be bloody, or anything like; they did not look to be raw like, like an old mark on them. JThe mark looked like an old mark; it did not look like a fresh one. I did not go out and examine them; I was about 30 steps from them. I was not much interested in them. Ote Armstrong did not come to see me about the hog Mr. Tomlinson gave my little daughter, but he asked me about the marks. He asked me if the hog was marked with a crop and split to the left ear and an overslope and underbit to the right, and I told him it was; that Mr. Tomlinson had given it to my daughter. Mr. Armstrong, as far as I know, never came to look at the hog.”

On redirect examination witness stated he saw Mr. Tomlinson the next morning after he saw the defendant and his brothers looking for the hogs.

“I told him, ‘I see you have some of the hogsand he said, ‘Yes; those are some I picked up around the house there.’ That was at the Holder blacksmith shop on Neck Potapo. Mr. Tomlinson stopped there 10 or 15 minutes; while he was stopped there, Bennie Holder and Hendershot came up to the wagon, and I Avas sitting on the wagon. Mr. Tomlinson does not hear good. I looked at the hogs, and he told me they were some he had gathered up around the house. After Uncle Frank drove on, Bennie Holder andí I talked about the marks, and Bennie said, ‘Them hogs belong to Fugate;’ and I told him ‘No, I seen them hogs at the mouth of Caney, if I ain’t mistaken.’ I don’t know whose hogs they were. I don’t think I said in the preliminary trial that I told Bennie they Avere Frank Tomlinson’s hogs. I don’t think I swore they were anybody’s hogs on the creek. I did not say to Bennie Holder they were Frank Tomlinson’s hogs; he told me that.”

Bennie Holder testified, on behalf of the state, that on or about the 17th day of February, 1927, he saw Frank Tomlinson near his father’s blacksmith shop with some hogs in the wagon; a few shoats with some sandy spots on the back, the right ear was cut off; it showed not to have been done very long.

“I did not have any conversation with Mr. Tomlin-son, but I did hear him talking with Mr. Beck. Mr. Beck asked him if he found his hogs, and he said, ‘No, these are some I picked up around the place there.’ I suppose he meant his place.”

Charley Smith, a witness for the state, testified in substance he remembered the occasion of the hogs being sold over at Stringtown, and that the defendant was arrested, charged with the larceny of the hogs.

“Just prior to that time I was down in Grassy Hollow vicinity. I saw the defendant out there some two or three days before I learned the defendant had been arrested for taking these hogs. The day I was over there I saw some hogs, and also saw the defendant out there. The hogs I saw belonged to Ote Armstrong. There was one black gilt, one little black barrow, and one little black barrow with list, white up to the shoulders, and there was a little male, more list on the right than on the left. These hogs weighed about 50 pounds. They' were marked, ‘a crop and split to the left, and overslope and underbit to the right.’ There was no ears cut off that day that I saw. When I saw them later in the stockyards at Atoka, their ears were chopped off. It appeared to be tolerably fresh.”

On cross-examination witness stated that in the preliminary hearing—

“I said along about that time; I says, just a few days, or something like that, before it was learned that the hogs had been taken. When the prosecuting attorney asked me along about the 17th, I said: ‘Yes, sir; something along about then I saw the hogs along the mouth of Grassy Hollow.’ ”

Witness stated:

“I am hauling lumber, and when I am not hauling lumbér I am working around the place and raising a, few hogs. I have á sow and four pigs is all I own. I have got my individual hogs out there; to make a living, I work at first one thing and then another. I have- a few hogs to sell. I guess the hogs they have been selling belong to us—Ote. I did not say I had seen these hogs around Grassy Hollow on the 17th; it was along about that time. I was there pretty nearly every, day looking for hogs and so on. I had one sow, and my little girl, she owned a few pigs. My hogs was in the Ote Armstrong mark. I never saw this mark on any other hogs.”

O. P. Ray, the sheriff, said he looked at the hogs Mr. Armstrong identified as his.

“I found the hogs in the stockyards here in Atoka that had been described to me as belonging to Armstrong. The hogs had been fresh marked in the right ear. I arrested the defendant in connection with these hogs. When all four of them was together, the defendant said he got those hogs up for Frank Tomlinson; said he and Yirgie and Bill went down to Grassy Hollow and drove them up. The other two boys corrected him, saying one of them quit on the mountain, and the other quit just before they got to the house. The defendant said the hogs came on to the house and he put them in the lot; that he got them up for Frank Tomlinson. Mr. Tomlinson stated he got the red sow from Mr. Tucker; it was his hog; that he' hauled the others to town for the Lansdale boys. I suppose they were their hogs.”

On cross-examination, witness stated Mr. Tomlinson was hard of hearing and a little slow of speech; he did not know what mark Mr. Tomlinson gave.

“I have not known much of him for the last 12 years. I have not seen much of him.”

This is in substance the testimony of the state. The defendant in substance introduced the following testimony :

J. W. Patterson testified he knew Jim Lansdale; had known Frank Tomlinson four years.

“I know his hog mark and have known it since that time. It is ‘crop and split to the left, and overslope and underbit on the right.’ I have one of his cows in my possession, and I bought a hog from him. I have the hog over at my place; it is about IV2 years old. Shortly after I moved where I am living, I had a conversation with Ote Armstrong about the Lansdale boys. He said they were Socialists; we had to get them out of the country; they were all flocking in on us. Later he came to me, where I was making ties with a gun, 30-30, with the hammer back, and he say, ‘Patterson, how come that wagon turned around over there and loaded hogs;’ and I said, ‘Ote, I never knew anything about it.’ And I said I was making ties right here, but I don’t know who loaded the hogs, and you don’t mean to implicate me stealing hogs, did you, but you saw whoever loaded out these hogs, and I said Ingram is the one who turned around there. He said, ‘I know who stole my hogs, and I am going to kill the first man I see driving hogs out of these mountains;’ and I said, ‘I have a hog I own, and I will drive it where I please.’ Armstrong then said, ‘I will get the man that got these hogs; I am going to run them Lansdale boys out of here.’ He—Armstrong —was hauling hogs out of there every night, and was hauling two loads every night, and he got 17 down near McGee. To my own knowledge he hauled these hogs,, because I came from the tie woods after night, and me and my boy would ride in the wagon with him, and I asked him if he needed any help in loading the hogs, and he said they only weighed about 50 to 60 pounds.”

On cross-examination by the county attorney the witness stated that his profession was laborer; he was farming for a living ; that he farmed about 24 acres.

“I have been living in this country about 4 years; did not know if Mr. Tomlinson had any other marks, than the crop and split to the left and underslope and underbit to the right. I know he has given it for the last 4 years; he would call his hogs and feed them, and show them to me.”

John Blankenship testified for the defense, and stated he knew Frank Tomlinson and the Lansdale boys. He was subpoenaed by the state as a witness. He saw Jim Lansdale on the 17th day of February, 1927, tolerably late in the afternoon.

“I went to get a sulky plow to plow in some oats. I liad a conversation with Jim Lansdale, and asked him for his sulky plow; and he told me he penned some hogs, and I went doAvn to the pen and looked at them. Uncle Frank claimed them, and I Avent to see them, and I said, ‘I don’t knoAv Uncle Frank’s hogs from any others.’ Where I lived it was a regular hog hole, because I lived on the canebrake farm. I could not tell whether they were the same hogs or not; there were so many that looked alike. Those shoats weighed about 60 or 70 pounds; every ear that had Uncle Frank’s mark on them were clipped off. The ears looked like they had been clipped from one to two or three days. I had seen hogs that I had taken to be these hogd in the field; it Avas an old outfield that I had bought. It had been under fence once. I could not say just hoAv long, it had been. Uncle Frank claimed two bunches of hogs. Uncle Frank was there looking after his hogs, and asked me about a bunch of hogs, and I told him I thought it was the same hogs, but I could not be positive they were his hogs, only by his saying they were. His description of the hogs fitted the hogs I had seen. It had been probably 30 days since I had seen the hogs prior to the time I seen the hogs at Jim Lansdale’s place. There was some listed hogs in the bunch, and Uncle Frank has been inquiring about listed hogs. He had a soav with one black soav pig, one black male pig, and two black barrows. When I went to the hog pen, my approach did not seem to excite them. These hogs ran south and east of my place, about a half a mile from Uncle Frank’s place. I am a brother-in-law of the Lansdale boys.”

Bertha Lansdale stated she lived on the other side of StringtOAvn. She remembered the hogs being penned at their place; it as about 1 or 2 o’clock when she noticed them.

“My husband came in about 20 or 30 minutes after I noticed them. I know Uncle Frank Tomlinson. At that time he was living in the house Avith us. I know his hog mark; it is a crop and split to the left and overslope and underbit to the right. After that time Uncle Frank gave me $20 to keep for him, two 5’s and one 10. He came in one day and asked me to put the money away for him; he was afraid somebody would knock him in the head, or he might lose it. Later he asked me for money and I gave him five, he got $10 later, and then he got 5.”

On cross-examination, witness stated she never saw any other mark that Mr. Tomlinson gave.

“I reckon Uncle Frank sold these hogs; Jim and Virgie and Uncle Frank loaded them. Uncle Frank brought some coffee and meal for me from Stringtown; if he brought a statement of the weight of those pigs, he never told me; I thought from the looks of the marks they had been marked three or four days; the ears were kindly scabbed. I think I had seen these hogs when they were little pigs, over at Mr. Tomlinsons.”

Bill Lansdale testified, for the defendant, that in February 1927, he saw the defendant and Yirge over to a man’s by the name of Patterson.

“I stayed at Mr. Patterson’s about 20 minutes. AVhen we left Mr. Patterson’s, Jim and Virge Lansdale was with me. We went to where the road goes off there on the mountain to Grassy HoIIoav, and Virge said, 'I believe I AA'ill go home,’ and asked us to come on and eat dinner with him. After Virge left us, Jim and I Avalked some distance, and I told Jim I believed 1 would go home, and left Jim near Grassy HoIIoav. I saw him that evening. I passed his house, and he was at home; he was not driving any hogs at that time. I have known Frank Tomlinson’s mark for about nine months; it is 'crop and split to the left and underslope and underbit to the right.’ ”

On cross-examination, witness stated they did not find the hogs before Virgil left them.

“I did not make a statement, when Ave Avere down there at the jail, as to any particular transaction. I told them I had nothing tO' do with it, and never had seen the hogs. My brother Jim did not make a statement in my presence at the jail, that me and Virgil and himself went over there to Grassy Hollow tO‘ find the hogs. I knew nothing about the hogs being found. You probably went over the whole matter with Jim, but I know nothing about it. I did not see these hogs going ahead of Jim, nor did I see him driving them. I never saw these hogs.”

Virgil Lansdale testified he was a brother of the defendant.

“After I left Patterson’s home, I left Bill and Jim, and rode on around the hollow home; had not seen the hogs at that time. I went over to Jim’s house next morning; we were making cross-ties over on the Beck land near his house.”

On cross-examination witness stated the hogs’ ears were not bloody the next morning, but they were remarked.

“I could not say they were fresh cut, but they had been cut recently; two or three days, looked like.”

Frank Tomlinson was called as a witness on behalf of the defendant, and stated in substance that he had been using the mark, “crop and split to the left and over-slope and underbit to the right,” first and last, about 40 years; been using it in the county Avhere these hogs are alleged to have been stolen for about 9 years.

“In February of this year, I was living bn a place east of Stringtown, in the house with Jim Lansdale and his family. I remember, Avhen I came home one afternoon, Jim had penned some hogs; I taken them to be my hogs. The left ear was in my straight mark and the right ear had been disfigured; some of them I thought I recognized by flesh marks. I brought these hogs down to StringtoAvn and sold them to Mr. Heard; when I took those hogs to Stringtown and sold them, I thought they were my hogs. I don’t remember telling Mr. Heard the boys had been trading and remarked the hogs. I did not say anything about who had re-marked them. I told Mr. Heard I wanted the weight of the red hog I got from Mr. Tucker; I wanted to show Tucker how big the hog was The only thing I remember mentioning about the Lansdale boys was that they guessed at the weights. This is the first time I have ever been charged with an offense. I have lived in this country about 40 years. I don’t remember anything being said about a trade.”

Witness, in response to a question of the county attorney, stated:

“I remember being in the sheriff’s office, a part off the time you were there. I don’t think I told the sheriff that the hogs belonged to the Lansdale boys, and that I was just taking them over to Stringtown for them. My recollection is that I did not tell the sheriff that. The place I speak of as my place is where Jim Lansdale was living. I did not think anything about hauling those hogs, any more than the rest of the hogs I have hauled off. These hogs run in the Bill Tucker pasture when they were pigs; they got to taking up with the Blankenship hogs around the Tucker place. Tom Tedford was living on the same place that Jim Lansdale afterwards lived on. Tedford died, and Lansdale moved up there. I was boarding with Jim Lansdale.”

A number of the neighbors testified as to the reputation of Jim Lansdale, the defendant, for being a peaceable and law-abiding citizen.

The defendant testified, in his own behalf, that he was 29 years of age; he was born and reared in the country in and around Stringtown; on the 17th day of February, when he left Patterson’s, it was about 10:30 or 11 o’clock.

“Virgil, Bill, Herbert, and myself went together on down the road about a quarter of a mile; Virge and Herbert left Bill and I there; Bill and I turned towards home; on the east side of the mountain Bill left me, and went on toward home. Up to the time Bill left me I had not seen anything of the hogs; a little ways on I heard the dog bark, and I learned he was barking at some hogs. I was about 150 yards from them; they run from the dog and went on across the mountain straight toward home. It was Frank Tomlinson’s dog that was with me; there was a little creek, and when they went to cross it I got up to about 50 or 75 yards from them. I could tell some of them had their ears cut off at that time. The creek was up, and I turned and went up the creek to. a foot log. I did not see the hogs any more until I got home; they were at the lot. I penned them in Frank Tomlinson’s lot. John Blankenship came up about that time, and I asked Blankenship to go down and look at the hogs I had penned. I told him I judged they belonged to Uncle Frank; and he said, ‘Yes; to the best of my knowledge they are Frank Tomlinson’s hogs, by their flesh marks and their ear marks.’ I noticed their ears had been cut, and said it looked like about two days. About 5 or 6 o’clock that evening Uncle Frank came in. I asked him to go down to the lot, and told him I had some hogs penned; I wanted to see if they were his; he said, ‘They are my hogs; somebody has cut their ears off.’' The following morning he wanted me to shoe his horse, and by the time I got the horse shod he had the wagon fixed, and wanted me to help him load the hogs. I helped him load the hogs. Uncle Frank held the team, and Virgil and I loaded the hogs in the wagon.. We loaded seven, six black and white spotted hogs and one red hog. You could tell a little of the mark after the ears had been cut; a little of the mark had been left, just a little overslope and underbit to the right. The mark in the left was plain. I have known this mark for two years, and have helped him mark some of his cattle with that mark. I remember telling the sheriff in the sheriff’s, office that the dog rallied these hogs on the west side of Grassy Hollow, on the. mountain. I told him no one helped me drive the hogs to the lot; neither Bill nor Virgil Lansdale saw the hogs that afternoon. Virgil saw them the next morning, when he helped me load them in the wagon.”

On cross-examination, witness stated he did not remember saying in. the presence of Mr. Kay, or any one, that “Virgil, Bill, and I found the hogs down on Grassy Hollow, and drove them up to my place. I don’t remember making any statement to the officer that Bill had anything to do with driving the hogs. I told them Bill left me on the east side of the mountain; there was a gxeat deal of confusion, and there was considerable talking.”

The state called O. P. Kay in rebuttal, who testified with reference to conversations he claims to have had with Frank Tomlinson and the defendant, in which he claims Frank Tomlinson told him he had not paid much attention to the hogs; he just supposed the boys had brought them from the other place.

“The defendant made a statement to me that all three went over there and found the hogs, and the dog run them up the hill, and Virgil went on home. Jim’s statement was they all went over there to get the hogs. He made two statements, and then I called the other boys in and asked them to repeat that statement. Virgil said he quit before he went up the mountain, and Bill said he quit him after he came to the mountain.”

On cross-examination, witness stated the defendant said:

“I and the other boys gathered them for Frank Tomlinson. I called the other boys in, and they said this was not true. One said I quit as we came up the mountain, and the other said I quit as I went down the mountain.”

We have at length set out the testimony on behalf of the state and defendant in order to arrive at the correct conclusion as to ivhether or not there was sufficient testimony to sustain a conviction.

Section 2101, C. O. S. 1921, defines larceny as follows:

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

In this case the defendant contends that the evidence is insufficient to sustain the judgment; that he was living with Frank Tomlinson, who was the owner of the hogs on the range in and around his place, and that he had been looking for the hogs; that, as he was returning from Mr. Patterson’s place, Mr. Tomlinson’s dog came on some hogs near a place known as Grassy Hollow; that the hogs started in the direction of defendant and Frank Tomlin-son’s home. The hogs crossed a little creek, and defendant had to go some distance from where the hogs crossed the creek to a foot log in order to cross. When he got home, the hogs were there at his place, and he put them in a pen, believing them to be the hogs of Frank Tomlin-son. When the hogs were penned, he discovered that a portion of their right ear had been cut off, almost destroying the mark on the right ear.

The testimony shoivs that the hogs were penned in a public place, and that later on Mr. Blankenship came to the house, and defendant had him look at the hogs to see if he thought they belonged to Frank Tomlinson. When Mr. Tomlinson returned home, he stated they were his hogs; that some of the right ear had been cut off. The next morning the defendant and his brother assisted Mr. Tomlinson in loading the hogs into his wagon, and Mr. Tomlinson left with the hogs to sell them. The testimony further shows that Mr. Tomlinson, with the hogs in his wagon, stopped at Holders place and visited for 10 or 15 minutes with some parties, one of whom got on the wagon and saw the hogs. Tomlinson talked with them about the hogs, and told them he Avas taking them to market. Tomlinson was driving along the public highway, and the record does not disclose there Avas any effort on his part to conceal the hogs or to keep any one from seeing them. There is some conflict as to the statements made by Mr. Tomlinson, when he sold the hogs, as to getting the Aveights, and also conflict in the testimony as to statements claimed to have been made by Tomlinson and defendant while at the jail, in talking to the sheriff and county attorney.

The testimony further shows that Mr. Tomlinson is hard of hearing, and it is necessary to talk rather loud to him to make him understand Avhat Avas being said. Mr. Tomlinson testified to' his mark, saying he had used that mark in that neighborhood for 10 or 12 years, and that when he saw the hogs in the pen at home, and when he hauled them to market, he believed them to be his hogs.

The prosecuting witness, Mr. Armstrong, according to his statement, had only been using his mark for about 18 months, and gave, as an excuse for putting the under-bit in the ear of his hogs, it was done for the purpose of distinguishing his mark from his father’s mark. NoAvhere in the testimony does it appear that there was any attempt made to hide the hogs alleged to have been taken, or in any Avay whatever conceal the fact that the hogs Avere penned in daylight; they were kept publicly where they could be seen by anyone passing the place.

The testimony further discloses that it Avas an open range, Avhere the hogs belonging to different parties ran at large. It is contended by the defendant, when he penned the hogs for Mr. Tomlinson, he believed they belonged to Mr. Tomlinson, and, when Mr. Tomlinson took them to market, he honestly believed they were his hogs. The gist of larceny is the intent at the time of the taking to deprive the owner of his property.

36 C. J. § 105, p. 764, says:

“If one in good faith takes the property of another believing it to be legally his own, or that he has the legal right to its possession, he is not guilty of larceny although his claim is based on a misconception of the law or his right under it. For although ignorance of law and honest intention cannot shield a man from civil liability for the trespass committed by him, yet they do protect him from criminal liability by divesting the act of the felonious intent, without which it cannot be a crime.”

In Rugless v. State, 97 Ark. 152, 133 S. W. 600, the court said:

“The evidence for the state shows that the defendant took the horse in the presence of others under claim of title, and there is an absence of criminal intent, which must operate jointly with the act to constitute larceny.”

In Griffin v. State, 87 Tex. Cr. R. 194, 220 S. W. 330, the court in the sixth paragraph of the syllabus says:

“One taking a hog from the range or commons, believing in good faith that it belonged to him, would not be guilty of theft.”

The court, in Leak v. State (Tex. Cr. App.) 97 S. W. 476, in the first paragraph of the syllabus, says:

“Where defendant took a calf, erroneously believing it belonged to his employer, whose cattle he had charge of, and took it to his employer’s farm, and there branded it * * * and afterwards sold it as his own, he was not guilty of theft, though before selling it he discovered his mistake. For him to be guilty, there must' have been fraud in the original taking.”

In Johnson v. U. S., 2 Okla. Cr. 16, 99 Pac. 1022, this court, in speaking through Judge Baker, reaffirmed the principle that, if the defendant took the property which he is charged with stealing, with the honest belief that he had the right or authority to do so, he would not be guilty of larceny, although he may have been mistaken.

In McSpadden v. Territory, 7 Okla. Cr. 228, 122 Pac. 1105, 1107, the court, in the body of the opinion said:

“They admitted the unlawful taking of the property, but claim it was taken by mistake, and not with intent to deprive the owner of his property; that when they became duly sober and discovered their mistake in taking the wrong bale of cotton they started to return with it, and would have returned the same that night, but they were arrested in the meantime. This was a proper and legitimate defense to the charge of larceny. No instruction was requested, and the court omitted to instruct the jury on this theory of the defense.”

In Lockhart v. State, 10 Okla. Cr. 582, 139 Pac. 1156, 1158, the court reaffirmed the doctrine that, if the property alleged to have been stolen was taken by the defendant, honestly believing it to be his, there was no felonious intent.

In this case the court is of the opinion that the testimony is insufficient to sustain a conviction of the offense charged against the defendant. It appears from the testimony that the defendant penned the hogs alleged to have been stolen, in the daytime, in a pen at his home, where one who was passing might see them; that Mr. Blankenship was asked by the defendant to go and see if he recognized the hogs as being the hogs of Frank Tomlinson; that when Frank Tomlinson came home he thought he recognized them as being his hogs, and next morning Mr. Tomlinson loaded them in a wagon and traveled the public highway, where they might be seen by any one, and where they were seen by other parties as he drove to town to sell them. The undisputed testimony is that the prosecuting witness had been marking his stock with the same mark of Frank Tomlinson, and that Tomlinson had been marking his stock for several years prior to the time the prosecuting witness began using the same mark that Tomlinson used. The testimony shows that the right ear of the Fogs had been disfigured by cutting off a part of the ear. There was no concealment of the hogs, and defendant testified that he penned them, believing them to be the hogs of Frank Tomlinson. Tomlinson testified to loading them in the wagon, and taking them to town, and selling them, believing they were his hogs.

In Lockhart v. State, supra, in the body of the opinion this court said:

“Where the taking is open, in the presence of others, and there is no subsequent attempt to conceal the property, and no denial, and where possession is not obtained by force, trick, or stratagem, a strong presumption of fact arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a jury may legitimately infer a felonious intent.”

The evidence in this case is wholly insufficient to show the necessary elements of the offense charged. We therefore do not hesitate to say the judgment of conviction should be reversed.

For the reasons stated, the judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    VIRGIL LATHAM v. STATE.
    No. A-6858.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 8, 1929.
    (281 Pac. 823.)
    I. L. Cook, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of unlawfully transporting intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days.

C. P. Kay, Jr., sheriff, testified, in substance, that he was driving on the Jefferson Highway near Flor Switch when he noticed a man on horseback meet a car. They stopped, and as they stopped the man on the left-hand side of the car handed out a jar. of whisky, and the man on horseback started to take a drink. As the witness drove his car up opposite the defendant’s car, the man on horseback started to pour the whisky out of the bottle. Parties in the car broke some jars of whisky, the witness picked up the cap of one of the jars, and tasted the contents, which he said was whisky. Witness found a quart jar of whisky in the car. The witness testified that the defendant was riding on the left-hand side of the car, and was driving the car, and that he handed out the bottle of whisky to the man on horseback.

The information charged the defendant with transporting liquor from a point in Atoka county to the point near Flor Switch. The evidence of the sheriff was sufficient, if believed by the jury, to justify a verdict of guilty,

The defendant contends that the court erred in giving instruction No. 3, in that said instruction shifts the burden of proof to the defendant. The instruction reads as follows:

“Some evidence has been introduced in this case to the effect that the defendant was driving the car in which the liquor alleged to have been transported was being transported. If you believe from the evidence beyond a reasonable doubt that the defendant was in charge and control of and wa.s driving the car in which such liquor was found, if you believe from the evidence that such liquor was found, but if you further believe from the evidence that the defendant had no knowledge of such liquor being in said car then it would be your duty to acquit the defendant.
“On the other hand if you believe from the evidence beyond a reasonable doubt that said car in which said liquor was found, if you believe such liquor was found in said car, was under the charge and control of and was being driven by the defendant and if you further believe beyond a reasonable doubt from the evidence that said defendant had knowledge of such liquor being placed in said car, if you believe it was placed therein and that defendant consented to the placing of such liquor therein or if you believe from the evidence beyond a reasonable doubt that he bad knowledge that such liquor was so placed in said car and failed to object to the placing of same therein and permitted same to remain therein while be was driving sucb car then in either of such events it would be your duty to convict the defendant.”

While the instruction is not skillfully drawn, it does not shift the burden of proof to the defendant. This court will not reverse a judgment of conviction on account of the misdirection of the jury unless after an examination of the entire record it clearly appears that there has been a miscarriage of justice or that the defendant has been deprived of some constitutional or statutory right. Munson v. State, 13 Okla. Cr. 570, 165 Pac. 1162; Smith v. State, 44 Okla. Cr. 254. 280 Pac. 317.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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