author: MATSON,, P. J.

text:
    JOHN A. NEWCOMB v. STATE.
    No. A-3994.
    Opinion Filed April 10, 1923.
    (213 Pac. 900.)
    (Syllabus.)
    1. Larceny — Evidence Sufficient to Support Conviction. Evidence examined, and held sufficient to support the verdict and judgment.
    2. Preliminary Examination — Magistrate May Correct Indorsement on Preliminary Information to Rectify Clerical Error. Upon motion to set aside the information on the ground that the examining magistrate had not held the defendant to answer the charge, the trial court may permit such magistrate to correct his indorsement on the preliminary information filed with the court clerk to speak the truth and to rectify an apparent clerical error.
    3. Indictment and Information — Information Charging Larceny not Duplicitous Because of Additional Allegation of Value. An information otherwise containing all the essential allegations necessary to charge the larceny of an automobile under section 2120, Compiled Statutes 1921, is not duplicitous merely because it contains an additional allegation of the value of the property; such allegations may be rejected as surplusage, which does no harm.
    4. Witnesses — .Cross-Examination of Defendant — Questions as to Conviction for Crime Though Pending on Appeal. ■ When the defendant takes the witness stand in his own behalf, he may be asked if he has ever been convicted of a crime. The purpose of this evidence is to affect his credibility as a witness. The fact that an appeal is pending from such conviction will not render such evidence inadmissible.
    5. Appeal and Error — Harmless Error — Instruction Favorable to Defendant. Under the evidence in this case an instruction requiring the jury to find “beyond a reasonable doubt that defendant was connected with the original talcing of said automobile, and although you may be satisfied beyond a reasonable doubt that the defendant came into possession of said car with knowledge that it had been stolen, and although you may find that he disposed of it with such knowledge and with the fraudulent intent to defraud the owner, still he would not be guilty of the crime charged unless he took the automobile originally, or aided and abetted, though not present, in taking the same from the possession of the owner thereof, and if from all the evidence you entertain a reasonable doubt as to whether the defendant was so connected with the original taking of said automobile, you should acquit him,” is not inconsistent with the theory that it is incumbent upon the state to prove the guilt of the defendant beyond a, reasonable doubt and is a safeguard against convicting defendant of the crime of receiving stolen property under a larceny charge. Said instruction was favorable to defendant and is not misleading.
    6. Trial — Failure to Instruct on Law of Circumstantial Evidence not Error Where not Requested. No request for an instruction on the law of circumstantial evidence having been interposed, it is held that the failure to instruct on that subject was not reversible error in this case.
    .7 Appeal and Error — Lack of Record for Reviewl of Improper Argument. Where the record contains no properly certified recital setting out' specifically the language used) by the county attorney in his argument and presenting enough of the argument to enable the court to pass intelligently upon the question to be presented, nothing is raised which mayi be propterly considered on appeal.
    8. New Trial — Impeachment of Verdict by Affidavit Showing Misconduct of Jurors. Unless required by statute, a verdict cannot be impeached by the affidavits or testimony of jurors showing misconduct on their, part in arriving at the verdict.
    Appeal from District Court, Caddo County; Edward Dewes Oldfield, Judge.
    John A. Newcomb was convicted of stealing an automobile, and be appeals.
    Affirmed.
    W. H. Amspaeher, who lived in the town of Apache, Caddo county, Okla., was the owner of a Ford five-passenger touring ear, 1920 model, and on the evening of October 21, 1920, he stored this car in an implement house owned by him, located on the main street of that town. Up until September, 1919, the defendant, John A. Newcomb, had lived in and around thd town of Apache for 12 or 14 years, part of which time he was engaged in farming, and later was engaged in the garage business, and also in the business of buying and selling secondhand automobiles in said town. Newcomb had known Amspacher for a long while and was acquainted with the location of the business and residence properties in the small town of Apache. At the time of the commission of this larceny, Newcomb’s father and step-mother were still residents of the town of Apache, but in September, 1919, New-comb had left the town, and during the interval between September, 1919, and October 21, 1920, Newcomb had been engaged in several different occupations. Part of the time he says he was traveling for an oil company, part of the time he was running a rooming house in the city of Walters, Cotton county, Okla., and at the time of the commission of this larceny he had re-entered the business of buying and selling secondhand automobiles, with the center of his operations in the city of Lawton, Okla. On the afternoon of October 21, 1920, according to Newcomb’s testimony, he left the city of Lawton in an automobile and drove to the town of Apache, as he says, for the purpose of seeing his father relative to getting his father to lease some land he owned near Apache for oil development purposes to a man by the name of De Moss. Newcomb further testified that he left the town of Apache about 6 or 6:30 that evening and returned to Lawton, arriving there about 8:30. We will take up the thread of Newcomb’s story later on in this narrative. We now return to the testimony of Amspacher.
    Amspacher testified that on the morning of October 22, 1920, he went to the implement house for the purpose of getting his automobile, and found that the same had been stolen. He had given nobody his consent to take the ear. It had rained considerably on the afternoon of October 21st, and there had been a drizzle during part of the night following the 21st. Upon discovering the next morning that his automobile had been stolen, Amspaeher noticed in the soft dirt and mud ■ between the implement house and the street in front of it the tracks where the car had been backed out of the implement house. These tracks led west from the implement house a block and a half and turned south on the road toward Law-ton, at which point the tracks of another car were found. Amspaeher and those with him followed these tracks to the paved streets of Lawton, where they were unable to farther distinguish them. Amspaeher immediately reported his loss to the chief of police at Lawton, to the commandant at the Ft. Sill military reservation near Lawton, and to the police authorities in the city of Walters, Okla. On the day following, which was the 23d of October, 1920, Amspaeher returned to' Lawton for the purpose of searching for his stolen car, and, if he did not find it there, for the purpose of going to Wichita Falls and Burkburnett, Tex., to make a search in those places and to notify the police authorities there of his loss. On this day Amspaeher looked around Lawton some for the car, but, failing to locate it, he went to the depot at Law-ton between 12 and 1 o’clock for the purpose of going to Wichita Falls and Burkburnett, as he had previously planned. While waiting at the depot for his train, he saw the defendant Newcomb there, and, being an old friend and neighbor of Newcomb’s, he told Newcomb of his loss and gave Newcomb a detailed description of the ear, describing certain peculiarities about the car, its model, engine number, etc. Amspaeher said Newcomb took this description down on a slip of paper, and at that time Newcomb was in possession of Amspacher’s car it later developed, but Newcomb claims that he did not know that the car that Amspaeher described to him was the one that he claimed to have bought from a total stranger on the streets of Lawton about noon of October 22,, 1920.
    About two weeks later Amspacher’s stolen ear was located in the city of Walters, Okla., in the possession of a man by the name of Cole, a taxi driver. Cole had purchased the car from Newcomb, giving' in part payment an old car that he had previously been using in his taxi business, paying the balance to Newcomb in cash. Upon Newcomb hearing that a man by the name of Taylor who lived in Walters, and through whom Newcomb made the deal with Cole, had been arrested and charged with stealing the car, Newcomb proceeded to fortify himself with a bill of sale to the car, taking some man who represented himself to be John Rector before a notary public in the city of Lawton on the 5th day of November, 1920, and Rector there excuted a bill of sale to New-comb for one five-passenger Ford car, engine No. 4142035, model 1920, for the sum of $400. In this connection it is pertinent to comment that the engine number given in this bill of sale did not correspond with the engine number on Amspaeher ’s car at the time it was stolen; neither did it correspond with the engine number on Amspaeher’s car at the time it was found in the possession of Cole.
    Newcomb was later arrested and placed in' jail at Lawton on this charge and on. another automobile larceny charge. Before Amspaeher went to Walters to determine if the car the police had there seized from Cole was the identical car stolen from him, he stopped at Lawton on his way down there, visited the jail, and there had a conversation with New-comb. Amspaeher detailed that conversation as follows:
    “A. I asked Mr. Newcomb if he knew anything of the whereabouts of my car; that they had him implicated in car stealing; that I would like to know if he had any idea where I might find my car. He said he didn’t. I called him by the first name. I said, 'John, possibly you have handled my ear; was you particular about looking after I gave you that description to see whether you got hold of my ear or not?’ and he said, ‘I was;’ and I says, ‘You are sure, then, that you never handled my car at all;’ and he says, ‘Yes; I am sure that I never.’ I had heard about a car that they had in custody at Walters, and I told him that I was going to Walters to try to identify that car, and I says, ‘John, if it is mine, what would you do if you was in my place and I was in your place; would you prosecute, or what would you do?’ and he hung his head and said, ‘Wilbur, I would wait a while; everything will come out all right;’ and I asked him if he looked to see about the iron felloe on this car when he bought it, and he said he did. He said he took a hammer and went around to each one and sounded them to see whether it was an iron felloe or a wood felloe, and the wood felloe is about that wide (indicating), and the iron felloe about that wide (indicating), on a Ford wheel, and I told him then, I says, ‘It would not have been necessary to have sounded it with a hammer;’ and he said, ‘I did, because I wanted to make sure;’ and I said, ‘How about the lamps;’ and he said, ‘This one didn’t have any lamps.’ That is the words that he told he, and I asked him about the mohair top, and he said it had a mohair top.”
    After having the foregoing conversation with Newcomb, Amspaeher went to Walters and identified the ear in the possession of the police there as the one stolen from him. The car had been greatly changed between the time of its larceny and the time of its discovery. Amspaeher describes these changes as follows:
    “A. The lamp and wind shield brackets had been removed and replaced with a different kind, those without the place for the lamps, the nickel motormeter was gone, the leather crank holder was gone, and the wind shield was replaced with the new one, the cracked one was gone, and had been replaced with a new one, and the left rear wheel was an old wheel partly worn out with a woód felloe, and my iron felloe was gone. The wheel with the iron felloe was gone, and the tires had been changed. The front tires had been changed. It had different hind of tires on it than it had when I last used the, car. Q. Was there any spokes cracked! A. There was spokes cracked in this old wheel. I don’t remember just how many, but some of them were cracked badly, and it had an old hub cap that was split. It just looked like they took a hammer and drove it on in place of screwing them on in the manner they screw them on. Q. Now what was the appearance of the other three wheels in comparison to this last wheel! A. The, other three were new. They had the appearance of new wheels. Q. Was your car a practically new car or otherwise! A. It was a brand new one; that is, practically so. Q. Now, was there any other changes on your car other than what you have related! A. Well, the tires, I believe I told about them, though. It had Firestone tires on it in front when it came back, and Goodyear tires when it left me! Q. Now, did you examine the numbers of this car! A. Oh, the numbers weren’t the same as they were at the time it disappeared. They had been mutilated in some manner, and another number substituted for the one that was on it. ’ ’
    To sum up the state’s case, we have the following facts and circumstances: Amspacher’s car was stored in his implement house in'the town of Apache on the evening of October 21, 1920, and on that same afternoon Newcomb admits that he was in the town of Apache. The car was traced to the city of Lawton. There all trace of it was lost. On October 22, 1920, the next day after the larceny, Newcomb was in possession of this ear. The next day Amspacher told Newcomb that the car had been stolen and described to him the pecularities by which the car could be identified. At that time Newcomb was still in possession of the car, but told Amspacher nothing about it. About two weeks later the car was found in possession of Cole at Walters, Okla. Newcomb had sold the car to Cole. There were numerous changes in the appearance of the car, and the engine number had been mutilated and changed. These particular changes were made in those parts by which the car could be most readily identified. Before Amspacher went to Walters to see if the car there was his car he again talked to Newcomb, and in that conversation, and while Newcomb was in jail, Newcomb denied any knowledge of the car, and told Am-spacher he had no idea where he could find his ear, and that he was sure that he (Newcomb) had never handled the ear.
    We now return to a narrative of the explanation given by Newcomb of how he came into the possession of this car, and in this connection it must be remembered that this explanation was made after Newcomb had on two previous occasions an opportunity to tell Amspacher that he had dealt in such a car.
    Newcomb’s story is that he bought the car from a man by the name of John Rector. Rector was a stranger to New-comb, and was introduced to him by a young man by the name of Russell. Russell was at that time 19 years of age, a soldier stationed at Ft. Sill and engaged as a cook. It appears from Newcomb’s testimony that a short time previous to this he claimed to have also bought a five-passenger Ford automobile from Russell. This was also a stolen car. Newcomb claims Russell introduced him to Rector, and that Rector had the car on a public street in the city of Lawton, and Newcomb says that, after driving the car around a block looking it over, he purchased the same from Rector, paying him $400 therefor, without making any inquiry as to who Rector was, and without at that time taking a bill of sale or any other evidence of Rector’s ownership of the ear. Nobody but Newcomb and Russell ever heard of Rector or ever saw him either before or after that transaction. Newcomb’s explanation of the changes made in the ear is that he made them so that the car would look- like a later model than it really was, and would therefore sell or trade to better advantage. However, the serial number on the engine was changed. The original number of the engine was 4169446, while the engine number on the car when it was recovered at Walters was 3014076. Why the serial number of the engine should be reduced over 1,000,000 +o give the car the appearance of being a later model is not explained. In addition to the testimony of Newcomb concerning the explanation of his recent possession of the stolen car, there is also testimony to the effect that Newcomb bore a good reputation for honesty in and around the town of Apache prior to the time of the alleged commission of this crime.
    The witness De Moss also corroborates Newcomb’s testimony that Newcomb went to Apache on the afternoon of October 21, 1920, to" see his father for the purpose of pro cubing oil leases for De Moss. In this connection the record also shows that the father was willing to lease his land for that purpose, but, if there was any other effort to obtain these leases between the 21st of October and the date of Newcomb’s arrest some three weeks later, the record is silent on that point. No doubt the jury was led to believe that such an important business transaction, once so favorably started, would not be allowed to drag, and that, if Newcomb in fact went to Apache on October 21, 1920, in good faith for such purpose, he would have followed up a transaction which so often -has opened the way in this state to wealth of untold millions.
    Newcomb’s explanation of his failure to take a bill of sale at the time he claims to have purchased this car was because he said he knew Russell was all right, and for that reason he believed the car belonged to Rector. The very fact that Russell had anything to do with this car should have aroused the suspicions of an honest man. If Newcomb knew Russell, he knew also that Russell was a soldier in the United States army and engaged in the capacity of a cook at Ft. Sill. He must have known also that the compensation, paid to a private soldier is very meager, and that Russell, if he was a man of means, would not likely be enlisted in the United States army, and, if he was enlisted in the United States army, his means would be such as not likely to permit him to be honestly engaged in handling automobiles, but Newcomb, claiming to have bought another automobile a few weeks before from Russell, had to give Russell an air of respectability and honesty before the jury.
    Russell’s story is equally as flimsy and incredible as that of Newcomb, if not more so. Russell claims that along about 6 o’clock on the evening of October 21, 1920, he came from Ft. Sill to Lawton on the interurban car, and was standing on the public streets in Lawton near a pool hall, when he was approached by a stranger who asked him if he wanted to make some money, to which Russell replied that he did if it could be easily made without much effort on his part. This stranger then told Russell that he had an automobile in storage in the town of Apache, Okla., and asked Russell if he could drive a car, and Russell told him he could. The stranger then took Russell to another Ford' ear he had in Lawton, and together they drove to Apache, and there took Amspacher’s ear out of his implement house. Russell, of course, believed that this was the stranger’s car that he had stored. They drove to Lawton, arriving there about 10:30 that evening, and the stranger did not at that time pay Russell, but told him to meet him again the. next day about noon, which Russell claims he did, and the stranger then asked if he knew where he could sell a car, and Russell then told him that Newcomb had bought one from him, and Russell went and got Newcomb, and Newcomb bought the car from the stranger .for $400, and the stranger then gave Russell $100 for going to Apache with him and driving the car back to Lawton. According to Russell’s story, he received as his pay for this service compensation at the rate of about $25 an hour. Of course, this never aroused the suspicions of Russell, although it probably did those of the jury.
    “0, what a tangled web we weave,
    When first we practice to deceive.”
    P. W. Cress, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON,, P. J.

(after reviewing the evidence as above). In view of the fact that one of the contentions of the defendant’s counsel, both in the lower and in this court, is that the evidence is wholly insufficient to sustain the verdict and judgment, the foregoing statement of facts in the case has been made somewhat argumentative as well as narrative.

We will dispose of that proposition with the statement that we deem the evidence amply sufficient to support the conviction. The state presented a strong chain of circumstances against the defendant, which, together with the proper inferences arising therefrom, in the absence of any explanation by defendant, was sufficient to establish his guilt. The defense interposed only tended to strengthen the probative force of the state’s evidence.

It is also contended that the trial court erred in overruling the defendant’s motion to quash the information. The information upon which the preliminary examination was had in the county court of Caddo county charged the defendant, John A. Newcomb, together with one L. J. Taylor, with the identical crime for which he was tried and convicted in this case.

When the county judge filed his transcript of proceedings in the district court, he indorsed upon the information a finding that the offense named had been committed, and that “there is sufficient cause to believe the within-named J. M. Dilling guilty thereof, and I order that he be held to answer the same.” No person by the name of J. M. Dill-ing was named in the preliminary information. The motion to quash the information was upon the ground that the committing magistrate had not indorsed thereon an order holding the defendant to await the action of the trial court. There was no contention that the defendant had not been accorded a preliminary examination into the ■ offense.

Upon the filing of the motion to quash the information, leave was granted the committing magistrate to amend his indorsement on the preliminary complaint, and the indorsement as amended was as follows:

“It appearing to me that the offense named in the within complaint mentioned has been committed and there is sufficient cause to believe the within named John A. Newcomb and L. J. Taylor guilty thereof, I order that he be held to answer the same.”

The motion to quash the information was then overruled, to which action exception was taken. It is contended that this action constituted reversible error because the second in-dorsement was inconsistent with the previous indorsement. The second indorsement was identical with the previous in-dorsement except as to the names of the parties held to answer the offense. The first indorsement was plainly a clerical mistake on the part of the committing magistrate. According to the first indorsement, he held “The within-named J. M. Dilling to answer said charge,” when in truth and in fact there was no such person named in the preliminary complaint. The subsequent indorsement was merely made to correct this patent mistake and was permissible under the holdings of this court in the following cases: Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Bradshaw v. State, 16 Okla. Cr. 624, 185 Pac. 1102.

The defendant, Newcomb, was not prejudiced by permitting the committing magistrate to amend his transcript to speak the truth. There is no contention that defendant was not accorded ai preliminary examination into this offense as required by section 17, art. 2, of the Constitution.

Next it is contended that the court erred in overruling the demurrer to the information. The demurrer was on the ground that more than one offense was charged) in one coum of the information, and it was therefore duplicitous. In this connection it is contended that the information charged both grand larceny under sections 2101 and 2104, Compiled Statutes 1921, and larceny of an automobile under section 2120, Id. The latter statute is equivalent in its terms to section 2116, Compiled Statutes 1921, relative to the larceny of live stock.

The information in this case contains all the allegations necessary to support a conviction under the automobile larceny statute with the additional allegation of the value of the property taken. In construing the larceny of live stock statute in Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, this court, where it was contended that the information was duplicitous in charging larceny of live stock because the allegation of value was contained therein, stated in the body of the opinion on page 155 of the official report (117 Pae. 886):

“The allegation of value in the information is not material, and may be rejected as mere surplusage, which does no harm.”

See, also, Stephens v. State, 12 Okla. Cr. 90, 93, 152 Pac. 138; Dunn v. State, 14 Okla. Cr. 452, 172 Pac. 463.

It is next contended that the court erred in admitting incompetent, irrelevant, and immaterial evidence and also in excluding competent evidence. The incompetent evidencie alleged to have been admitted relates to the testimony elicited upon cross-examination of the defendant concerning his previous conviction in another county of automobile larceny. In this connection it is contended that the cross-examination was improper and the evidence inadmissible for the reason that such conviction had not become final because an appeal was then pending therefrom. This contention had heretofore been decided adversely in the cases of Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029, and Porter v. State, 20 Okla. Cr. 355, 202 Pac. 1041. In the latter ease it is said:

“This court has held in the case of Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029, that: ‘Where defendant takes the witness stand in his own behalf, he may be asked if he has ever been convicted of a felony or of any offense showing want of moral character. The purpose of this evidence is to affect his credibility as a witness by showing that he has been convicted of a felony or of any offense indicating a want of moral character. The fact that an appeal is pending from such conviction will not render such evidence inadmissible. It is the verdict of the jury upon such accusation that affects the credibility of the witness.’
“While there are decisions in other states announcing a contrary doctrine, to the effect that a conviction is not final until the appeal is decided, and that while such appeal is pending it cannot be shown that the defendant was convicted of such former offense, for the purpose of affecting the credibility of the defendant or for any other purpose, we think the law as announced in the Manning Case is supported by the weight of authority and the better reasoning.”

Further, it is contended that the trial court erred in instructing the jury as to defendant’s guilt under the larceny of automobile statute and authorizing his conviction and punishment under said statute for the reason that the same is unconstitutional and void as being in conflict with section 57 of article 5 of the state Constitution. This contention is adversely disposed of in Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066.

Instruction No. 5 is also complained of. Said instruction is as follows:

“(5) The court instructs the jury that the defendant, John A. Newcomb, is charged in this case with stealing the automobile in question, and, before you can convict him, you must find beyond a reasonable doubt that the defendant was connected with the original taking of said automobile, and although you may be satisfied beyond a reasonable doubt that the defendant came into possession of said car with knowledge that it had been stolen, and although you may find that he disposed of it with such knowledge and with the fraudulent intent to defraud the owner, still he would not be guilty of the crime charged unless he took the automobile originally or aided and abetted, though not present, in taking the same from the possession of the owner thereof, and, if from all the evidence you entertain a reasonable doubt as to whether the defendant was so connected with the original taking of said automobile, you should acquit him.”

It is contended that the following language: “And, if from all the evidence you entertain a reasonable doubt as to whether the defendant was so connected with the original taking of said automobile, you should acquit him” — east an undue burden upon the defendant, in that it requires the defendant to establish the truth of an affirmative defense to a reasonable probability.

The instruction is not open to the criticism lodged against it. It is consistent with the theory as contained in the separate instruction that it is incumbent upon the state to prove the guilt of the defendant beyond a reasonable doubt. It impresses upon the jury the fact that the jury must find beyond a reasonable doubt that the defendant was connected with the original taking of said automobile. The purpose of the instruction was to inform the jury that, although they might believe the defendant guilty of the crime of unlawfully receiving stolen property, they could not convict him of that offense under the charge contained in the information. In this respect the instruction was fair to defendant, and in the opinion of this court was not misleading or prejudicially erroneous. !

It is also contended that the trial court erred in failing to instruct on the law relative to circumstantial evidence. No request was made for an instruction on this subject. In view of the defense interposed and in the absence of such request, it is considered that the failure to instruct on this subject was not reversible error in this case.

"It is also contended that the county attorney in his opening argument made prejudicial remarks not supported by the evidence. We find no recital in the case-made certified to by the trial judge that the county attorney made the remarks complained of. The motion for a new trial contains an affidavit to the effect that the county attorney made such remarks, and to which the defendant objected and excepted, setting out the remarks, but outside the motion for a new trial there is no recital in the case-made specifically setting forth the remarks complained of or the connection in which the argument was made.

In Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259, it is held:

“Objections to the argument of the county attorney placed in the case-made by counsel for a defendant will not be considered unless they are included in the recitals made by the trial judge, and unless they also set out the language used by the county attorney and show that the same was excepted to at the time.”

Where the record contains no recital properly certified to by the trial judge setting out specifically the language used by the county attorney and presenting enough of the argument to enable this court to pass intelligently upon the question to be presented, there is no question raised which may properly be considered on appeal. Questions of this character may not be raised for the first time in the motion for a new trial. Webber v. State, 18 Okla. Cr. 323, 193 Pac. 48; Gaines v. State, 18 Okla. Cr. 525, 196 Pac. 719.

Further contention is made that this judgment should be reversed because of misconduct of the bailiff in communicating with the jury after retirement, to consider its verdict. This assignment is not supported, by the record before us.

Attempt was also made to impeach the verdict by the affidavit and testimony of jurors. This proceeding is not allowable in this jurisdiction. Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; Overton v. State, 7 Okla. Cr. 203, 114 Pac. 1132, 123 Pac. 175; Oklahoma, K. & M. Ry. Co. v. McGhee, 84 Okla. 116, 202 Pac. 277.

Upon a careful consideration of the entire record, the conclusion is reached that defendant was accorded a fair trial.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    JOHN A. NEWCOMB v. STATE.
    No. A-3993.
    Opinion Filed April 10, 1923.
    (213 Pac. 906.)
    (Syllabus.)
    1. Trial — Instruction on Law of Alibi Approved. Instruction on the law of alibi examined and held not to place the burden of proof upon .the defendant.
    2. Trial — Instruction not Objectionable as Comment on Weight of Evidence — Larceny. Instruction relative to the possession of stolen property examined, and held not objectionable as a comment on the weight of the evidence.
    3. Instruction Approved. Por an instruction held properly to admonish the jury as to its duties and not prejudicial to the substantial rights of the defendant, see body of opinion.
    4. Overruling of New Trial not Prejudicial. There was no abuse of judicial discretion in overruling the motion for a new trial on the ground of. newly discovered evidence.
    Appeal from District Court, Grady County; James I. Phelps, Judge.
    John A. Newcomb was convicted of larceny of an automobile, and he appeals.
    Affirmed.
    P. W. Cress, for plaintiff iu error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court of Grady county wherein the defendant was on the 26th day of January, 1921, adjudged guilty of the crime of larceny of an automobile and sentenced to serve a term of five years’ imprisonment in the state penitentiary. Petition in error with case-made attached was filed in this court on June 6, 1921, and the appeal is properly before this court for review.

We deem it unnecessary to enter into an extended discussion of the facts in this case. The evidence is somewhat complicated, but we consider it sufficient to sustain tbe conviction.

Some of the questions involved are decided adversely to the contentions of counsel in the case of John A. Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900, opinion this day rendered, and it will not be necessary to refer to such alleged errors in this opinion.

The defense relied upon was that the defendant had purchased the car in question from one Ira Foster in the city of Anadarko, Okla., in the morning of the day that the state contends the car was stolen between the hours of 8 and 10 o ’clock in the evening thereof. In addition to the evidence of purchase of the car the defendant also introduced evidence to show that he was at another and different place on the evening of the day the car was stolen, and that it was impossible for him, to have been the thief. Relative to the defense interposed, the trial court gave the following instruction, which was excepted to by the defendant:

“No. 5. You are further instructed that the defendant not only denies having stolen the automobile in question, but claims that on the date the automobile was alleged to have been stolen that he was in another and different plaice than that where the automobile was stolen, to wit, in Anadarko, Caddo county, Okla., and that he purchased said car from one Ira Foster in Anadarko, Okla., and in this connection you are instructed that if you believe that the defendant, at the time the car was stolen, was in another and different place than the place where the automobile was stolen, or if you have a reasonable doubt as to whether the defendant was in Grady county at the time the ear was stolen, or if you have a reasonable doubt as to whether he purchased said car from Ira Foster, then you should give him the benefit of the doubt and return a verdict of not guilty.”

It is contended that the foregoing instruction is indefinite and places the burden of proof upon the defendant. Similar instructions on the law of alibi have been approved by this court in the following cases: Thompson v. State, 6 Okla. Cr. 50, 66, 117 Pac. 216, 223; Spess v. State, 20 Okla. Cr. 94, 201 Pac. 395, 396.

The instruction is not open to the objection urged that it places the burden of proof upon the defendant.

It is also contended that the court erred in giving to the jury instruction! No. 6, which is as follows:

“No. 6. You are further instructed that, if you find and believe beyond a reasonable doubt that said ear was stolen, and that after it was stolen the same was found in the possession of the defendant, you may consider his possession of said ear as a circumstance, together with all the other evidence, facts, and;- circumstances in the case, in determining the guilt or innocence of the defendant.”

Said instruction was objected to on the ground that the same did not'state the law applicable to the possession of stolen property and was a comment on the weight of the evidence. Counsel does not point out wherein said instruction amounted to a comment on the weight of evidence. We do not consider such instruction a comment upon the weight of the evidence. The court merely told the jury that, if they believed beyond a reasonable doubt that the car was stolen, and that after it was stolen the same was found in the possession of the defendant, they might consider his possession as a circumstance in determining his guilt or innocence. The court left to the jury the right to give that circumstance such weight as the jury might see fit.

The defendant was in no way prejudiced by the giving of instruction No. 6.

Instruction No. 9 is also complained of, which instruction is as follows:

“No. 9. You are further instructed that, after listening to the argument of counsel, it is your duty to retire and begin your deliberations, and, after you have retired, you will select one of your number as foreman, who alone will sign the verdict. Proper forms of verdict will be furnished you for your convenience. It will be necessary for all 12 of you to agree before you can reach a verdict in this case, and, when you have arrived at a verdict, your foreman will sign the same, and you will return into court in a body. You must not cast lots or use any- other method or means of chance in. arriving at your verdict, but the same must be the individual judgment of each juror, based upon the law and the evidence in the case, and concurred in by all of you. You must let no feeling of sympathy, sentiment, or prejudice enter into your deliberations, but must discharge your duty as jurors faithfully, honestly, impartially, and conscientiously, and return such verdict as the evidence warrants when measured by these instructions.”

The last instruction was objected to upon the ground that it was contradictory and an invasion of the province of the jury. We consider the instruction to properly admonish the jury as to its duties and clearly not prejudicial to the substantial rights of the defendant.

The principal contention relied upon in the oral argument in this case was that the trial court erred in overruling the defendant’s supplemental motion for a new trial on the ground of newly discovered evidence.

The alleged newly discovered evidence was that of the affiant C. C. Russell,, whose affidavit was filed in support of the motion. In this affidavit Russell swears that he stole the car in question on the night of:the -day before the prosecuting witness claims that it was stolen, and that he sold it to Newcomb in tbe city of Anadarko tbe next morning and received the sum of $500 for the same. This witness Eussell is the same man who figures so prominently in the trial of the other conviction of this defendant in case No. A-3994, 23 Okla. Cr. 172, 213 Pac. 900, this day decided. The trial court very properly overruled this motion. We are convinced that the relations existing between Eussell and the defendant New-comb, as disclosed by these convictions, were so intimate, and had been for some time prior to the trial of this ease, that it was either impossible for the affidavit of Eussell to have been true, or, on the other hand, for the evidence to have been newly discovered. The peculiar circumstances under which it is disclosed by this record that the evidence was alleged to have been discovered would so clearly impeach its probative force as to render it of little value in ai subsequent trial. Such was the opinion of the trial judge, and it is the opinion of this court that, should such evidence be introduced on another trial of this defendant, no different result would ensue. The motion was addressed to the discretion of the trial court, and we find no abuse of discretion in denying a new trial because of newly discovered evidence.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    HOWARD STANTON v. STATE.
    No. A-4159.
    Opinion Filed April 11, 1923.
    (213 Pac. 914.)
    (Syllabus.)
    1. Appeal and Error — Dismissal Where Case-Made or Transcript Fails to Show Judgment Rendered. An appeal in a cirminal case cannot be taken until after judgment against the defendant has been rendered, and, where the case-made or transcript of the record fails to show that such judgment' has been rendered, such appeal will be dismissed for want of jurisdiction.
    2. Same — Attempted Appeal from Judgment' Overruling Motion for New Trial. In a criminal case, where the defendant attempts to take an appeal from a judgment overruling a motion for new trial, the appeal will be dismissed.
    Appeal from District Court, Wagoner County; E. A. Summers, Judge.
    Howard Stanton was convicted of larceny of an automobile, and he appeals.
    Appeal dismissed.
    Bert Van Leuven, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Howard Stanton, was convicted on an information charging the theft of a Ford automobile, the property of one J. F. Raper, and his punishment fixed at imprisonment in the penitentiary for the term of five years. The Attorney General has filed a motion to dismiss the appeal, “because the record fails to disclose any copy of the judgment and sentence of. the trial court.”

In the response to the motion to dismiss it is stated that no judgment has ever been rendered on the verdict. The record discloses that the verdict was returned on November 26, 1920, and on the same day a motion for new trial was-filed. The following day another- motion for a new trial was filed; on December 1, 1920, an amended motion for a new trial was filed; on: February 5, 1921, a hearing was had upon said.amended motion. The trial court ordered that said hearing be continued to a time to be agreed upon. On July 25, 1921, motion for new trial was overruled. On July 25, 1921, the court granted supersedeas of the judgment, and fixed the amount of the bond, which was given, and time was given to make and serve case-made.

The appeal in a criminal case is from the judgment against the defendant. The, uniform holding of this court is that an appeal in a criminal case cannot be taken until after judgment against the defendant has been rendered, and, where the record fails to show that such judgment has been rendered, an attempted appeal will be dismissed. McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876; Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328; Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560.

Because the record fails to show that no judgment or sentence was ever rendered on the verdict of conviction, the motion of the Attorney General must be sustained. The attempted appeal herein is therefore 'dismissed, and the cause remanded to the district court of Wagoner county, with direction to enforce its judgment therein, if judgment has been rendered; if not, the district court of Wagoner county is directed to render judgment in pursuance of the verdict.

MATSON, P. J., and BESSBY, J., concur.


text:
    ARTHUR R. OLIVER v. STATE.
    No. A-3800.
    Opinion Filed April 11, 1923.
    (213 Pac. 908.)
    (Syllabus.)
    1. Appeal and Error — Dismissal of Appeal Where Pardon Accepted. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.
    or Order. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his
    2, Same — Necessity for Appellant to Be Amenable to Judgment appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Arthur R. Oliver was convicted of murder, and he appeals.
    Appeal dismissed.
    J. B. Dudley, J. N. Roberson, and Thomas Mayfield, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Arthur R. Oliver, was convicted of the murder of one Charley Armour, alleged to have been committed on or about the 12th day of November, ,1919, by shooting him with a pistol, and in pursuance of the verdict of the jury he was on the 27th day of December, 1919, sentenced to imprisonment in the penitentiary for life at hard labor. From the judgment an appeal was taken by filing in this court on the 24th day of June, 1920, a petition in error with case-made. Upon applications of counsel for plaintiff in erro the cause was continued* from term to term. On December 2, 1922, briefs on behalf of plaintiff in error were filed. On December 28, 1922, the Attorney General filed the following motion to dismiss the appeal:

“Now comes George F. Short, the duly qualified and acting Attorney General of the state of Oklahoma, and respectfully shows to this court that on the 23d day of December, 1922, and in the presence of one member of the court, the attorney of record for the plaintiff in error herein stated to the Assistant Attorney General in charge of the work before this court that the plaintiff in error had been released from the state penitentiary; that he is the attorney for plaintiff in error, had met and talked with plaintiff in error on the street in Oklahoma City on the day before; that diligent search and inquiry has been made, and no record of any pardon or parole can be found; that plaintiff in error was convicted by a jury and sentenced to serve the remainder of his life in the state penitentiary, which judgment and sentence is not susceptible to bail or supersedeas.
“Wherefore this applicant moves the court to dismiss the appeal pending herein, under the rule heretofore established and promulgated by this court, with reference to appellants, who accept executive clemency pending their appeal or escape from custody and become a fugitive from justice.”

On the facts as averred in the motion, we think the motion to dismiss the appeal should be sustained, as coming within the following rules declared by* this court in numerous decisions.

When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed. Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912.

And where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case. Alexander v. State, 12 Okla. Cr. 200, 153 Pac. 619; Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453.

No response or answer to the motion to dismiss having been filed, and there being no other reason why the cause should receive further consideration by this court, the motion to dismiss the appeal is sustained. It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the trial court.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    ISADORE WHITE v. STATE.
    No. A-3909.
    Opinion Filed April 14, 1923.
    (214 Pac. 202.)
    (Syllabus.)
    1. Former Jeopardy — Waiver of Plea by Accused Pleading Over to Amended Information Without Objection to Discharge of Jury. When the county attorney, after the commencement of the trial, asked leave to amend the original information, and the amendment describing the property was made by leave of court, and the defendant asked and was given leave to plead over to the amended information, and a continuance was granted for that purpose, and no objection was interposed to the discharge of the jury, the accused, under such circumstances, waived his right, if any he had, to claim former jeopardy. The discharging of the jury to enable the defendant to plead over and prepare to meet the amendment made did not operate as an acquittal.
    2. Same — Constitutional Law — Announcing Ready for Trial as Waiver, of Withheld Constitutional Privilege. If an accused announces ready for trial, with full knowledge that he has not been accorded some constitutional privilege, in this case the privilege of claiming former jeopardy, the right to claim it will be deemed waived. He cannot later shift his position and reclaim the right.
    3. Same — Constitutional Privilege Waived by Consent or Failure to Seasonably Assert. Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent; or by implication, from conduct indicative of consent; or by failure to claim or assert the right in seasonable time.
    4. Indidtmenf and Information' — Amendment 'of Informatioin (to Describe Stolen Property After Qualification of Jury. Where the information states the date, the place, and the names of the persons from whom the stolen property was received, and by whom received, but fails to describe the property, the information is not void in the sense that it may not be amended to specifically describe the property; and such an amendment may be made, with proper safeguards, after the jury have been qualified.
    5. Same — Amendment not Giving Accused Right to Demand Another Preliminary Hearing. The fact that the original information was adjudged insufficient for want of descriptive averments, and that the defendant was subsequently confronted with a new or amended information, does not of itself give him the right to demand another preliminary hearing. The same offense was described in both informations. The preliminary examination was sufficient to support the information on which he was tried and convicted.
    6. Receiving Stolen Goods — Averments Necessary to Charge Larceny not Essential in Information; not Necessary- to State Ownership in Information Charging Felonious Receiving of Stolen Property. Averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp. St. 1921. In - such an information it is not necessary to state the ownership of the property.
    7. Claim of Insufficiency of Amended Information Heidi Untenable. The claim made that the amended information did not conclude with the words “against the peace and dignity of the state of Oklahoma,” examined, and held untenable.
    8. Criminal Law — Those Stealing Property not Accomplices of One Knowingly Receiving It. The mere fact that two of the state’s witnesses stole the property and the defendant received it, knowing it to be stolen, would not make the witnesses accomplices of the defendant. The stealing of property and the receiving of stolen property are two separate offenses, and the perpetrator of one offense is not necessarily an accomplice of the perpetrator of the other.

      9. Receiving Stolen Goods — Evidence Held Sufficient to Support Conviction. The jury, under the evidence and the instructions of the court, were called upon to decide whether two of the state’s witnesses were accomplices of the accused, and, if accomplices, whether their testimony was sufficiently corroborated. Held, that in either event the evidence was sufficient.
    Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.
    Isadore White was convicted of receiving stolen property, and he appeals.
    Affirmed.
    G. A. Paul, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Isadore White, plaintiff in error, here referred to as the defendant, was in the district court of Oklahoma county, on July 10, 1920, convicted. of the crime of fraudulently receiving stolen property. His punishment was by a verdict of the jury fixed at confinement in the county jail for a period of six months and to pay a fine of $250. From the judgment on this verdict he appeals.

There were a number of unusual proceedings connected with the trial of this case, portions of which were had before three different judges. In the preliminary information the defendant was charged with knowingly and fraudulently receiving stolen property, without in any way describing the property received or stolen. A preliminary trial was had before an examining magistrate and the defendant held for further proceedings in the district court. In due course a like information, containing no description of the property whatever, was filed in the: district court, the sufficiency of which was challenged by a demurrer stating: (1) That the information did not conform to the requirements of the Code or Criminal Procedure; (2) that the information did not state facts constituting a public offense; and (3) that more than one offense was attempted to be stated in the information. The demurrer was by the court overruled and an exception allowed the defendant.

The cause first came on for trial in, district court on the original information on April 15, 1920. A jury was called and qualified and a witness called, sworn, and took the witness stand to give his testimony for the state (Record, p. 24). The defendant then objected to the introduction of testimony for reasons not affirmatively appearing of record, but presumably for the same reasons urged in the demurrer, i. e. because no property whatever was described in the original information. The court sustained this objection. The county attorney then asked and was given leave to amend the information. Accordingly, the information was amended by incorporating in it a detailed description of. the property alleged to have been stolen and feloniously received. The defendant then asked and was given 24 hours in which to plead to the amended information. The jury theretofore impaneled was without any objection discharged from further consideration of the cause. On April 19th the defendant filed a plea in bar, claiming former jeopardy in the proceedings had on the original information, which motion or plea was by the court overruled and the cause reset for trial on May 26, 1920. On May 28th a trial was had on the issues raised by the amended information, resulting in a disagreement of the jury on May 31st. Subsequently, the cause was again called for trial on July 8,1920. On this day a third jury was impaneled and qualified. ' A witness was called and sworn on behalf of the state. After the county attorney had propounded a question to the witness, the defendant objected to the introduction of any evidence for the following reasons:

First. That the amended information does not state facts sufficient to constitute a publie offense or to charge the offense of knowingly receiving and buying stolen property or knowingly receiving or buying stolen property.

Second. That this court is without jurisdiction to try and determine the issues in this case for the reason that there is no legal and valid information pending against this defendant.

Third. Because the said amended information is invalid and illegal in that it was an amendment permitted by the court to an information that was invalid and defective, and was so permitted over the objection and exception of the defendant.

Fourth. For the reason that said defendant desires to offer proof in support cf the allegations of this objection as to the defective and invalid and void amended information herein.

Fifth. As a part of this objection the defendant offers his plea and motion filed on April 19, Í920, claiming' former jeopardy.

Is an information charging the receiving of stolen property, in which no description whatever appears of the property said to have been stolen and received, defective to such an extent that it would not support a conviction after trial? W here the information states the date, the place, and the persons from whom the stolen property was received, but fails to describe the property, the information is not void in the sense that it may not be amended in such a way as to specifically describe the property. • lluough has been stated to apprise the accused of the nature and character of the offense charged, and of the time and circumstances of its commission, and in that sense it may be regarded as voidable and not absolutely void. Section 2512, Comp. Stat. 1921, provides: .

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant*; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. ’ ’

When the county attorney asked leave to amend the original information and amendment describing the property was made by leave of court, and the defendant asked and was given tíme to plead to the amended information, and interposed no objection to the discharge of the jury, under such circumstances the accused waived his right, if any he had, to claim former jeopardy. Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, L. R. A. 1917E, 1085; Bohannan v. State, 11 Okla. Cr. 69, 142 Pac. 1092; Loyd v. State, 6 Okla. Cr. 76, 116 Pac. 959; 1 Bishop, New Crim. Law. § 998.

In the original information a crime was charged, though imperfectly stated. The defect of failing to describe the property, under our liberal practice, could and should be cured by an amendment. That was done in this case. The accused knew the import of the accusation, the time and manner of the commission of the crime charged. The defect was one of form rather than of vital substance. That being true, we think the accused was placed in- jeopardy on the original information so soon as the jury was qualified and the trial commenced by the introduction of evidence. We think, too, he continued to be in jeopardy through all the subsequent proceedings, terminating in the verdict of guilty. The discharging of the jury to enable the defendant to plead over and prepare to meet the amendment made did, not operate as an acquittal. In the Bohannan Case, supra, the court said:

“The plain provisions of the law should be respected, and when the court found that the information was insufficient, the jury should have been 'discharged, and the cause passed for trial to such time as the statute could be complied with. There is ample authority for the position that the filing of a new information makes a new case, and that the accused is entitled to the statutory time in which to plead.”

In the case at bar the trial court followed the practice outlined in the Bohannan Case, by continuing the case so as to permit the accused to have the statutory time in which to plead the amended information. The jury was discharged without objections or protest on the part of the accused. It is fair to assume that this was done with the implied consent of the accused, amounting to a waiver of his right to an immediate trial by the jury first impaneled. The proceedings later on were resumed before another jury, resulting in a mistrial because the jury could not agree. This jury was also discharged and a third jury qualified, whereupon the defendant announced ready for trial, without a special plea in bar claiming former jeopardy, as was done at the mistrial. This amounted to a' second waiver of accused’s-rights to claim former jeopardy. True, on this ground he objected to the introduction of testimony; but the objection came too late. To all intents and purposes the proceedings before this third jury were a new original trial. If an accused announces ready for trial with full knowledge that he has not been accorded some constitutional privilege, the right to claim it will be deemed to have been waived. He cannot later on shift his position and reclaim this right. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

In the Allen Case, supra, the court cites with approval a statement made in 1 Bishop’s New Criminal Law, § 998, to this effeet:

“It is well established that after the jury has been impaneled and sworn in a criminal case any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, express or implied, of the defendant.”

Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent, or by implication, from conduct indicative of consent, or by a failure to claim or assert the right in seasonable time. State v. Frisbee, supra.

Applying this test, defendant’s right to claim former jeopardy, if indeed he ever had such a right, was waived. Holding, as we do, that under the circumstances here the original information was susceptible of amendment after the trial bad commenced, tbe defendant was in jeopardy but once and a plea of former jeopardy was properly refused.

Tbe fact that the original information was adjudged insufficient for want of descriptive averments and that tbe defendant was subsequently confronted with a new or amended information does not of itself give him tbe right to demand another preliminary bearing. The same offense was described in both informations. The preliminary examination was sufficient to support tbe information on which he was finally tried and convicted. Little v. State, 21 Okla. Cr. 1, 204 Pac. 305; Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

It is claimed by the accused, though denied by the state, that the amended information does not conclude with the clause, “against the peace and dignity of the state of Oklahoma,” as provided by our Constitution, art 7, § 19. This controversy arose in this wise: The amendment was made by attaching and pasting on an ordinary blank information, just beneath the introductory printed portion of the blank, the charging and descriptive parts in typewritten form, in such manner that the typewritten paper so pasted and attached to the blank extended down and over the concluding printed clause, “against the peace and dignity of the state of Oklahoma.” Whether the adhesive mucilage extended farther down than intended or whether the adhesion occurred after-wards, so as to obliterate this concluding printed clause, must be determined from all the surrounding circumstances. The original information contained this concluding clause: At pages 25 and 26 of the case-made the amended information as there shown does not contain these concluding words; defendant’s plea in bar, as it appears in the case-made, contains what purports to be a copy of the amended information wherein this concluding clause does appear. We assume that the county attorney had no intention of obliterating this concluding clause, if indeed it was obliterated. The adhesion of the lower part of this typewritten insert, obliterating or covering the conclnding clause, may have taken place after the information was filed. It has often been held that there is a presumption that a public officer did his duty and that statutory and constitutional modes of procedure have been followed. Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.

Whether the omission of the words “against the peace and dignity of the state” is fatal to an information is not necessarily involved in this case. An interesting discussion of this question, pro and con, may be found in the case of Chemgas v. Tynaan, 51 Colo. 35, 116 Pac. 1045.

It is claimed that the amended information is further insufficient because it did not contain all the essential aver-ments necessary to charge larceny. It has been held that averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp. Stat. 1921. In such an information it is not necessary to state the ownership of the property. Hartgraves v. State, 5 Okla. Cr. 266, 114 Pac. 346, 33 L. R. A (N. S.) 568, Ann. Cas. 1912D, 180; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; Webb v. State, 19 Okla. Cr. 450, 200 Pac. 719; 17 R. C. L. 87; State v. Sakowski, 191 Mo. 635, 90 S. W. 435, 4 Ann. Cas. 751

The defendant claims that the verdict is not supported by sufficient evidence. This conviction rests largely upon the testimony of two self-confessed thieves, the persons who claimed they stole the property and sold and delivered it to the defendant, which they claimed they did pursuant to a previous agreement with the defendant. If this was done pursuant to an agreement, these two witnesses were accomplices whose testimony should, be corroborated. If there was no such previous understanding, the mere fact that these two witnesses stole the property and the defendant received it, knowing it to be stolen, would not make the witnesses accomplices of the defendant. The stealing of property and the receiving of stolen property are two separate offenses, and the perpetrators of one offense are not necessarily accomplices of the perpetrator of the other. 1 R. C. L. 162, and cases cited.

There was evidence indicating that before the defendant was arrested or charged with this offense he voluntarily paid the attorney’s fee in the ease then pending against one of these witnesses1 charged with the larceny of those identical goods. Further, statements made by the defendant before his arrest to an officer at defendant’s store, where the officer had gone for the purpose of investigating the larceny and disposition of the goods stolen, in a measure corroborated these two state’s witnesses.

If a corroboration was necessary, the facts constituting the corroboration were facts for the jury, as pointed out in the court’s instructions. The jury were called upon to decide, under the instructions given: (1) Whether any corroboration was necessary; and (2) if necessary, whether the corroboration was sufficient. Upon these issues this court will not disturb the findings of the jury.

We think the judgment below should be affirmed and it is so ordered.

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


author: PER CURIAM.

text:
    JAMES WOOD v. STATE.
    No. A-4008.
    Opinion Filed April 16, 1923.
    (214 Pac. 197.)
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    James Wood was convicted of the crime of selling intoxicating liquor, and he appeals.
    Affirmed.
    Walter Mathews, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Payne county wherein the plaintiff in error on the 12th day of April, 1920, was convicted of the crime of selling intoxicating liquor, to wit, one pint of whisky to one L. R. Bishop, alleged' to have occurred on or about the 2d day of September, 1920, and punishment assessed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The only error assigned is that the evidence is insufficient to sustain the conviction. The witness Bishop testified that he bought a pint of corn whisky from the defendant, James Wood, in the city of Cushing, Okla., and paid him $7 for the same, but this occurred on the 3d day of September, 1920. The defense relied upon was an alibi, defendant claiming he was in the city of Tulsa on the 2d day of September, 1920, and denying that he sold any whisky to the witness Bishop. While the evidence is conflicting, there is evidence in the record which, if believed, is sufficient to sustain the conviction.

The questions of the weight of the evidence and the credibility of the witnesses were for the jury.

Judgment affirmed.


text:
    JAMES WOOD v. STATE.
    No. A-4199.
    Opinion Filed April 16, 1923.
    (214 Pac. 137.)
    (Syllabus.)
    Appeal and Error — Cause Abated by Death of Appellant. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death; and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated. *
    Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
    James Wood was convicted of a second violation of the prohibitory liquor law, and he appeals.
    Proceedings abated.
    Goode & Dierker, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, James Wood, was prosecuted on an information filed in the district court of Pottawatomie county charging a second violation of the prohibitory liquor law. Üpon his trial the jury found him guilty, and assessed his punishment at a fine of $100 and imprisonment in the state penitentiary for the term of three years. Prom the judgment rendered on the verdict on November 7, 1921, an appeal was perfected by filing in this court on January 20, 1922, a petition in error with case-made. Before the final submission of the case the plaintiff in error departed this life, as shown by the motion of his counsel of record, averring the fact that, “the said-James Wood departed this life, he having been killed in a gun fight on the streets of Shawnee more than three months ago,” which motion is duly verified.

In a criminal prosecution, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death; and, where it is made to appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated.

It is therefore adjudged and ordered that the proceedings in the above-entitled cause do abate. Cause remanded, with direction to the trial court to enter, its appropriate order to that effect.

MATSON, P. J., and BESSEY, J., concur.


author: DGYLE, J.

text:
    LIGHTFOOT WEST v. STATE.
    No. A-2784.
    Opinion Filed April 18, 1923.
    (214 Pac. 196.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon by Appellant. When the pardoning power extends clemency in the form of a full unconditional pardon, subsequent to the appeal being perfected in this court, the appeal will be dismissed.
    Appeal from District Court, Canadian County; John W. Hayson, Judge.
    Lightfoot West was convicted of cattle theft, and he appeals.
    Appeal dismissed.
    J. N. Robertson, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DGYLE, J.

This is an appeal from the judgment of the district court of Canadian county sentencing the defendant to five years in the penitentiary on the trial of an information charging the larceny of domestic animals. The judgment was rendered April 1, 1916.

While the appeal was pending and before the final submission of the cause, it was agreed in open court on the part of the state, the Attorney General, representing the Governor, that if said plaintiff in error, a married man, would volunteer as a soldier and return with an honorable .discharge, the Governor would grant him a pardon. Thereupon the cause was continued indefinitely.

After the war ended, plaintiff in error appeared in open court with his counsel and exhibited his honorable discharge. The Attorney General presented the matter to the Governor and has this day filed his motion to dismiss the appeal on the ground that a full and unconditional pardon has been granted to plaintiff in error, which pardon reads as follows:

“To all to Whom These Presents Shall Come — Greeting:
“Whereas, Lightfoot West was convicted in the district court of Canadian county, Okla., on the 1st day of April, 1916, and sentenced to serve a term of five years in the state penitentiary, for the crime of larceny of cattle; and
“Whereas, a reprieve was granted the said Lightfoot West on condition that he enter the United States army and serve during the World War; and
“Whereas, the said Lightfoot West did serve in the United States army as agreed, being a corporal in Co. I, 20th Inf., stationed at Ft. Douglas, Utah, and received an honorable discharge on April 7, 1920:
“Now, therefore, I, J. C. Walton,, by virtue of the power and authority vested in me by law, and in consideration of the services rendered to his country, do hereby grant unto the said Lightfoot West a full and complete pardon of the said offense, restoring unto him all the rights of citizenship in this state.
“In witness whereof I have hereunto set my hand and caused to be affixed the great seal of the state of Oklahoma, at Oklahoma City, on, this the 17th day of April, 1923. J. C. Walton, Governor of the State of Oklahoma.
“Attest: R. A. Sneed, Secretary of. State.”

The uniform' holding of this court is that, when the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.

It is therefore adjudged and ordered that the appeal herein be dismissed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JOHN L. PHELPS v. STATE.
    No. A-3869.
    Opinion Filed Jan. 29, 1923.
    Rehearing Denied April 21, 1923.
    (214 Pac. 912.)
    (Syllabus.)
    Homicide — Evidence to Sustain Conviction of Manslaughter in First Degree. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree, and that no material error was committed upon the trial.
    Appeal from District Court, Blaine County; Thos. A. Edwards, Judge.
    John L. Phelps was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    C. H. Carswell, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, John L. Phelps, was convicted in the district court of Blaine county of manslaughter in the first degree, and his1 punishment fixed at imprisonment in the penitentiary for the term of 10 years. From the judgment rendered on the verdict an appeal was perfected by filing in this court on October 15, 1920, a petition in error with case-made.

The defendant is not represented by counsel in this court, and we have nothing before us but the petition in error and case-made. The errors assigned are: (1) The court erred in overruling defendant’s demurrer to the information. (2) The court erred in giving instructions.

The information reads:

“In the name and by the authority of the state of Oklahoma, now comes Ben Smith, county attorney in and for the state and county aforesaid, and gives the court to know and be informed that one John L. Phelps, late of the county of Blaine and state of Oklahoma on the 18th day of January, in the year of our Lord one thousand nine hundred and twenty, at and within the said county and state, did then and there unlawfully, willfully, and intentionally, knowingly, wantonly, maliciously, and feloniously, and without authority of law, and with the premediated design to effect the death of one William H. Hamilton, a person then and there being, make an assault on the said William H. Hamilton with a certain dangerous and deadly weapon, to wit, a revolver, then and there loaded with gunpowder and bullets, and which revolver he, the said John L. Phelps, then and there had and held in his hand, and the said John L. Phelps did then and there willfully, unlawfully, feloniously, and without authority of law, and with the premeditated design to effect the death of the said William H. Hamilton, fire and discharge and shoot off said revolver at and towards the said William H. Hamilton, and did thereby then and there inflict a certain mortal wound in and upon the body of the said William H. Hamilton, from which mortal wound and as a result thereof the said William H. Hamilton, thereafter and on said 18th day of January, A. D. 1920, in said Blaine county, state of Oklahoma, did die, and in the manner and form aforesaid the said John L. Phelps did kill and murder the said William H. Hamilton, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”

It is needless to say that the information contains the essential allegations of a charge of murder. The demurrer thereto was properly overruled. The following facts appear from the record:

William H. Hamilton, deceased, lived at Canton. Sam Mayhall and deceased had a contract to move a house and repair the same on an Indian allotment. Defendant, Phelps, worked for them, and during that time lived with deceased. There was a dispute with defendant as to the amount due him. Mr. Mayhall arranged a meeting to settle with defendant for his work. They met at Mayhall’s barn on Sunday morning. Defendant and Mayhall were there before deceased came. They talked in a general way. Then defendant said, “Let’s settle up; I want to go.”. Deceased said, “What was your bill, John?” Defendant said, “Twenty-two dollars.” Deceased said, “How does it come that Bill Meyers was up here on that job longer than you, and your bill is bigger than Meyers1?” Defendant said he worked there after Meyers quit. Mayhall said, “Meyers was there until the work was done.” Defendant said, “He was not.” Deceased said, “You are a damn liar; he was.” They stood up and the defendant pulled a gun. Deceased said, “I am not afraid of you or your gun, ’ ’ and advanced on the defendant. Defendant backed away and shot him. The bullet passed through the heart. Deceased said, “Sam, come here,” and dropped dead.

As a witness in his own behalf defendant testified:

“When deceased raised up, I jumped to my feet and commenced to back up. He kept coming towards me, and said, ‘You God damn son of a bitch, I will knock your head off.’ I told him to stop; that I did not want any trouble with him. I thought he had a knife in his hand. He was within three or four feet of me, and I jerked my gun and shot him.”

The record is voluminous, but we deem it unnecessary to further 'detail the evidence in the case. The instructions of the court covered every phase of the case presented by the testimony, and were exceptionally fair to defendant. No objection was made nor exceptions taken to the instructions given. We think the testimony, without any doubt, is ample (o sustain the conviction. Upon consideration <>f the whole ease we are satisfied that the substantial rights of defendant have not been prejudiced by reason of any error of law appearing in the record.

The judgment appealed from is- therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    MIKE FABRY v. STATE.
    No. A-3949.
    Opinion Filed Feb. 17, 1923.
    Rehearing Denied April 21, 1923.
    (213 Pac. 910.)
    (Syllabus.)
    1. Trial — Failure to Instruct on Law of Self-Defense not Error When not Requested nor Supported by Evidence. Where no instruction on the law of self-defense was requested, and the issue of self-defense was not reasonably supported by the evidence, the failure of the trial court to instruct on that issue was not reversible error.
    2. Assault and Battery — Trial—“Dangerous Weapon” Defined]— Failure of Court to Define Dangerous Weapon not Erroneous Where no Request Made. A “dangerous weapon” is one “likely to produce death or great bodily injury by the use made of it.” Where the undisputed evidence shows that the assault was made with a “sledge hammer handle” 2 1-2 feet long and 3 inches in circumference, inflicting! injuries which disabled the prosecuting witness for 2 1-2 months, the appellant is not in position to complain of the failure of the trial judge to define the term “dangerous weapon,” where no request was made to define that term.

      3. Appeal and Error — Conviction—Sufficiency of Evidence. Where, according- to defendant’s testimony, he is at least guilty of the offense for which he was convicted, none hut fundamental errors will operate to reverse the judgment of ■ conviction.
    4. Assault and Battery — Evidence Insufficient to Submit Issue of Simple Assault. There was no evidence in this case requiring the submission of the issue of defendant’s guilt of a simple assault.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Mike Fabry was convicted of an assault with a dangerous weapon, and he appeals.
    Affirmed.
    Moore & Harries, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 8th day of April, 1920, the county attorney of Pittsburg county filed in the district court of said county an information charging:

“That Mike Fabry did, in Pittsburg county, and in the state of Oklahoma, on or about the 13th day of March, in the year of our Lord, one thousand nine hundred and twenty and anterior to the presentment hereof, then and there with a certain dangerous weapon, to wit, a certain pick handle or club which the said Mike Fabry in his hands then and there had and held in and upon one Tom Fabry, wrongfully, unlawfully, intentionally and feloniously make an assault by then and there striking and beating the said Tom- Fabry with the said pick handle or club aforesaid, with'the unlawful and felonious intent then and there on the part of him the said Mike Fabry to then and there do great bodily harm to the said Tom-Fabry, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

Thereafter defendant pleaded not guilty to such information, and on January 7, 1921, upon a trial to a jury, a verdict of conviction was returned assessing Ms punishment at six months’ imprisonment in the county jail. Thereafter motion for a new trial was filed and overruled, and the defendant duly sentenced in accordance with the verdict.

The errors assigned and relied upon are as follows: (1) The defendant was entitled to have instructions covering the law of self-defense submitted to the jury. (2) Instruction No. 3 given by the court in the general charge is erroneous because (a) it excludes the plea of self-defense, (b) It invades the province of the jury, in that it states as a matter of law that “a pick or sledge hammer handle” is a “sharp or dangerous weapon.” (3) The court erred in failing to submit to the jury the issue of simple assault.

As to the first alleged error above assigned, the following may be said: The defendant was charged with having assaulted his brother, Tom Fabry, by striking him with a pick or sledge hammer handle, and the evidence shows that tMs club was about 2 1-2 feet long and 3 inches in circumference. The prosecuting witness and three other witnesses for the state who were present at the time of the assault all testified that the defendant struck the prosecuting witness over the head and shoulder, knocking him to the ground, and then continued the assault by striking the prosecuting witness with the club after the prosecuting witness had fallen to the ground, inflicting such severe injuries upon the prosecuting witness that he was totally disabled to follow his occupation of coal mining for a period of 2 1-2 months; that at the time the defendant first struck the prosecuting witness the prosecuting witness was standing talking to other persons and made no attempt to strike or in any way injure the defendant. In other words, that the assault by the defendant at the time was entirely unprovoked, either by words or gestures.

The testimony of the defendant is unsupported by that of any other eyewitness to the transaction. Defendant’s testimony does not make out a case of self-defense in any particular, as is shown by the following excerpts from his testimony:

“Q. Just what conversation you and Tom had, what you and Tom talked about just before this trouble? A. Well, we was — this thing been on 13th of March and Saturday, I don’t remember if it was after noon or before noon. Q. Somewhere near noon? A. I believe it was about 11 o’clock; I could not for sure about that. Q. Tell the court and jury what you and Tom were talking about just prior to this difficulty? A. I went office, and they didn’t have my pay ready yet, and I wait a little, and I take my pay and put in my pocket and was walking around over there and went to the store and just looking over there, and I was buying this pick handle— no; a sledge hammer handle to put in there. I was working in twenty-two buck at that time. I was doing anything around the mine. Q. What did you want with the sledge hammer handle ? A. I was going to cut it off and put him in a hatchet. I was fixing telephone wires, anything around the mine. Q-What was said between you and Tom? A. Well, after I buy this handle, I was outside the store walking around, and he come out of the store. He start to talk to me about it, and I says, ‘Ain’t you going get killed?’ He called me ‘robber,’ one thing and ’nother; he says, ‘You are like your brother John and Andrew.’ I says, ‘Don’t call me robber, you call me enough of it,’ and at that time when he call me robber I struck him. He says, ‘You get killed, you God damn robber son of bitch;’ that is, he was coming up, and I says, ‘Who kill that way?’ So he start to put his hand in his pocket, and that time I.struck him same time right over the side because I know he ready to kill me because he carried a gun with him, .32 automatic, and I know he had it all the time and he want to kill me brother John and Andrew and me, too, and he told me the same day he was going to kill me, and that is the reason I struck him. Q. Why did you think he had the .32 in his pocket? A. I saw it; you could see handle right here (indicating) in his pocket. I could see it and I tell my brother John, if he was here he could say same thing. I says youi better be careful in the office—
“The County Attorney: Object to anything he told his brother John.
“The Court: Objection sustained. A. And he call me robber and 'dirty son of bitch, and I just struck him over the side. Q. Did you try to kill) him? A. No; I don’t try to kill him, I try to give him pretty good whipping, pretty good whipping for my mother grave, and you rob that money, $250, I believe it was, I have the letter and same time too you say you try to kill me anyhow, but I am not going to kill you, but I give you pretty fair whipping, I told him. Q. You say at that time you saw the pistol in his pocket? A. Yes, sir; that is the reason I hit him, I could hit him with the fist, but that is the reason I hit him with the sledge hammer handle, I saw this pistol and I know he going to pull him out if 1 didn’t hit him, and that is the reason I hit him with the hammer handle, I was afraid he wasi going to pull it out and kill me.”

And again on cross-examination:

“Q. You thought he was a robber, didn’t you? You thought he had robbed your mother’s grave and you told him that? A. I says, 'You are robber.’ Q. You told him he was the robber? A. I told him he was robber, I says, ‘You are robber; you rob mother’s grave $250.’ Q. I want you to answer my questions in a few words, how long have you had it in for Tom? A. I ain’t got it in; my brother was over here to tell me about that mother tombstone. Q. You can’t get away from mother’s grave? A. I can’t get away, because that is the thing coming up to; that is the reason I whipped him, mother’s grave. I ask about letter at the same time, and about the same time, when he call me robber, I hit him. Q. Tell me in just a few words, why did you, strike Tom Fabry? A. I struck him right at the coal office. Q. What did you do it for? A. I hit him when he call me robber.”

And again:

“Q. The first word you said after you struck that man, you struck him once and Mr. Allbritton tried to catch you and said, ‘Mike, what are you trying to do.’ You never said a word; you whirled and hit your brother, his laying on the ground, you never said a word, you started to strike him again, and he caught at you again and you dodged him and struck your brother across the arm, and he tried to catch you again when you went to strike at him, and you whaled away with that there handle and struck him laying mercilessly on the ground a third time, and struck him across the leg and it was then and there that he caught you and crowded you away and you went off a few steps and held that handle up and said, ‘Now, who is a God damned son of a bitch?’ That happened didn’t it? A. No, sir. Q. Then that is not true then? A. No, well one thing — Q. I don’t want to know one thing.
“Mr. Keith: Your honor, he wants to make an explanation.
“The Court: Tell what was true? A. The only thing I hit him, Mr. Allbritton run to me. ‘Don’t hit him any more,’ he says, ‘Please don’t hit him,’ he says, ‘Please don’t kill him.’ I says, ‘I don’t want to kill him, I just give him for what he call me robber for and he rob my mother’s tombstone, I just give it to him.’ Q. You struck him because he hadn’t put that tombstone to your mother’s grave in Europe? A. Man like that — Q. Just answer my question, did you — that was why you struck him, wasn’t it?
“Mr. Keith: Your honor, I object to that.
“The Court: Let him answer first why.
“Q. That is why you struck him, because he hadn’t put the tombstone to your mother’s grave? A. No, sir; I had excuse him about that mother tombstone if he not talk to me and want to call me robber and dirty son of bitch, at that time I struck him. Q. You never did intend to excuse him did you? A. I be here thirteen years, but he called me robber and everything there. Q. You didn’t want to be called a robber, did you? A. No, sir.”

No instruction covering the law of self-defense was requested by the defendant, and we think it clear from what has heretofore been said concerning the testimony of the state’s witnesses and from the excerpts taken from the defendant’s testimony, that, the issue of self-defense was not reasonably presented by the evidence. It was not error, therefore, for the trial court to fail to instruct upon this issue in this case. Smith et al. v. State, 22 Okla. Cr. 383, 212 Pac. 1012.

What is said above concerning first assignment of error is applicable with equal force to subdivision (a) of the second assignment of error. Subdivision (b) of the second assignment of error relates to' the failure of the trial court to submit to the jury the question of whether, or not a pick handle or sledge hammer handle, which the evidence showed to be 2 1-2 feet long and 3 inches in circumference, was or was not a “dangerous weapon” within the statutory meaning of that term. No request was made of the trial court to define the meaning of the term “dangerous weapon.” A “dangerous weapon” has been defined by this court to be one “likely to produce death or great bodily injury by the use made of it.” Bourbonnais v. State, 7 Okla. Cr. 717, 122 Pac. 1131.

The evidence in this case clearly established that this pick handle or sledge hammer handle, as used by the defendant in making the assault upon his brother, was, in fact, a ‘ ‘ dangerous weapon” as above defined. There was no controversy in the issues joined on that subject. Had it been a controverted issue of fact and had the trial court failed or refused to define a “dangerous weapon,” then there might be some merit in this assignment of error, but under the state of this record and in view of the provisions of section 2822, Compiled Statutes 1921, this court is not authorized to reverse this judgment because of such alleged error.

In this case the defense interposed amounted virtually to a plea of guilty. According to the defendant’s own testimony, this assault was entirely uncalled for and was occasioned because the prosecuting witness applied certain opprobrious epithets to the defendant immediately preceding the assault.

In the case of Harris v. State, 14 Okla. Cr. 489, 173 Pac. 958, this court took occasion to say:

“It was not intended that the appellate courts should hunt through the numerous volumes of law books in the State Law Library to find technical reasons for reversing a conviction or to excuse the rulings and conduct of the trial judge in instances of this kind. The necessity of that has been done away with by the foregoing enactment of the Legislature, and it is the solemn intention of this court to respect that enactment. The trend of modern thought is to the effect that, where the guilt of those charged with crime is established beyond the peradventure of a doubt, such as in this ease, the criminal shall not escape his just punishment just because certain matters occurred and rulings were made by the trial judge during the progress of the trial that have heretofore been held to be technically erroneous. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error, and how may it be said that this defendant was prejudiced by anything that occurred during the progress of the trial when, under his own testimony, he was at least guilty of the crime of which he was convicted? Under such circumstances, is it the duty of this court, although technical errors were committed, to remand the case for another trial, to subject the taxpaying public to the burden of again convicting this man, although, given the benefit of all reasonable doubt, he is guilty under his own statement of that crime of which he was convicted? We do not so construe our statutory provisions.”

There was no evidence in this case requiring the submission of the issue of simple assault. That there was no fatal variance between the allegations of the information and the proof adduced, see the opinion of this court in Cotton v. State, 22 Okla. Cr. 252, 210 Pac. 739.

Counsel representing defendant in this court were not connected with the trial of the case in the lower court.

The judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


text:
    JOHN BERRY v. STATE.
    No. A-3988.
    Opinion Filed Feb. 3, 1923.
    Rehearing Denied April 21, 1923.
    (213 Pac. 909.)
    (Syllabus.)
    1. Homicide — Evidence Sufficient to Sustain Conviction for Shooting with Intent to Kill. In a prosecution for shooting another with intent to kill, evidence held sufficient to sustain conviction, and that no material error was committed on the trial.
    2. Homicide — Self-Defense not Invocable by One Provoking Difficulty. One who seeks and brings on a difficulty cannot shield himself under the plea of self-defense, however imminent the danger in which he finds himself in the progress of an affray.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    John Berry was convicted of shooting another with intent to kill, and he appeals.
    Affirmed.
    E. M. Carter, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of the superior court of Okmulgee county sentencing the defendant to a term of one year in the penitentiary. Omitting formal parts, the information upon which the judgment of conviction is based charges:

“That the said John Berry, at and in the county of Ok-mulgee, and state of Oklahoma, on the said 10th day of November, 1917, with a certain pistol, which he, the said John Berry, then and there in his hands had and held, unlawfully, willfully, feloniously, and intentionally shot one John Bodzek, with the unlawful and felonious intent him, the said John Bodzek, unlawfully, willfully, feloniously, wrongfully, and intentionally to kill, contrary to,” etc.

The errors assigned are, in effect, that the verdict of the jury is contrary to the law and the evidence, and that the court erred in admitting incompetent, irrelevant, immaterial, and prejudicial evidence over the objections of the defendant. The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The record shows that the difficulty whieh led to the shooting arose over the removal of a fence on John Bodzek’s lot in the town of Schulter.

Mary Bodzek testified:

That her father dug a well about 80 feet from the house, and was fixing the fence around the well when John Berry came up and said to her father, “Tear that fence down right now, or I will shoot you; ’ ’ that Berry had a pistol in his hand, and shot her father, and her father ran towards the house, and Berry shot Mm again; that her father called to her to bring him his gun, and she ran into the house and brought out the gun, and her father fainted.

John Bodzek testified:

"I bad trouble with John Berry about) my well; his wife came oyer there and broke the lock; he came oyer there that day when I was fixing the fence, and told me to tear it down, or he would shoot. I said, ‘It is none of your business,’ and he shot me. The bullet went through my finger; I ran, and he shot me again; the bullet went through my leg. I had a hammer and a pair of. pinchers in my hand, and I had an axe there to make posts, and it was lying on the ground; before I reached the house I fainted from loss of blood.”

As a witness in his own behalf John Berry testified:

“I live across the street from John Bodzek; he was repairing the fence and building a new fence part of the way; I went there, and he was working on a post with an axe; I said, ‘John, what do you mean by fencing the street so I can’t get out?’ He said, ‘None of your business; I will kill you,’ and he started to throw the axe; I said, ‘If you throw that axe at me I will shoot you;’ he started to run to the house, and said, ‘Mary, bring the gun quick;’ the little girl reached him the gun, and as he started to raise the gun I shot him; he jumped behind a blackjack snag, and I fired two more shots; he did not fire the gun, but he tried to.”

No exceptions were taken to the instructions given, and they fully cover the law of the case. We think the evidence showed him guilty beyond! any reasonable doubt. Assuming that the defendant had the right to remonstrate with John Bodzek against fixing the fence, he had no right to resort to violence in order to prevent its erection, and, on the well-settled doctrine that a party who seeks and brings on a difficulty cannot avail himself of the right of self-defense, we think the defendant’s guilt is shown by his own testimony. We are unable to discover any error in the admission of evidence.

Upon an examination of the whole record we have discovered no material error. The judgment of the trial court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.