author: DOYTE, J.

text:
    B. B. BIVENS v. STATE.
    No. A-223.
    Opinion Filed January 15, 1912.
    (120 Pac. 1033.)
    1. LARCENY — Indictment—Allegations. Where, in an indictment for larceny, the property is charged to have been taken by fraud, it is not necessary to set out the fradulent acts relied upon as constituting the fraud.
    2. LARCENY — Distinguished From Embezzlement. The distinction between larceny, where the taking is by fraud, and embezzlement, is determined with reference to the time when the fraudulent intent to convert the property to the taker’s own usé occurs. In larceny the criminal intent must exist at the time of taking' the property, and it must be taken with intent to deprive another thereof. If, on the other hand, the taker receives the property. as a bailment, intending at the time a compliance with the terms of the bailment, or to conform to the owner’s wishes concerning the property, and he afterwards fraudulently appropriates the property to his own use, intending to deprive the owner thereof, the crime is embezzlement.
    3. SAME — Conversion—Criminal Intent. Where the owner of per- ' sonal property voluntarily parts with the possession of the- same for a particular purpose, and the person who receives the possession avowedly for that purpose has at the time a fraudulent intention to make use of such possession as a means of converting the property to his own use, and does so convert it, the crime is larceny.
    4. LARCENY — Right of Possession — Jurisdiction of Crime. A larceny does not deprive the owner of the legal right of possession or right of property, which still continues wherever the stolen property may be carried bjr the thief, and where a thief brings into this state property which he has stolen in another state, he is guilty of larceny here, and he may be convicted in any county into which he has carried the stolen property.
    5. SAME. The courts of this state have no jurisdiction to punish for criminal acts committed outside the state, but in order to ascertain the intention with which an act was done within this state, the acts and declarations of the defendant done and made in any other jurisdiction may be considered in a prosecution for larceny,.in order to show the character of the defendant’s possession in this state of the property alleged to be stolen.
    (Syllabus by the Court.)

      Appeal from District Court, Tillman County; J. T. Johnson, Judge.

    B. B. Bivens, plaintiff in error, was convicted of the crime of grand larceny, and sentenced to serve a term of one year and one day in the penitentiary, and appeals.
    Affirmed.
    The information charges:
    “The defendant, B. B. Bivens, then and there being, did then and there wilfully and unlawfully, fraudulently and feloniously take,, steal and carry away by fraud, without the consent and against the will of the true owner, forty-five dollars, good and lawful money of the United States and of the value of forty-five dollars, the personal property of one Oscar Weihs, of said county and state, with the unlawful, wilful, felonious and-fraudulent intent then and there of him the said B. B. Bivens, to deprive the said Oscar Weihs thereof and to convert the same to his own use and benefit, contrary,” etc.'
    At the trial Oscar Weihs testified that he lived in Texas, and first met the defendant in a hotel at Vernon, Texas, on November 19, 1908.
    From the transcript the following is taken:
    “Q. Did you have any other business transaction with Bivens that night? A. Why, we slept together in one bed, and I had some greenbacks, $45.00, and he had $5.00 greenbacks. I didn’t have but one purse, and I had $12.00 silver, and I asked him what I was going to do and he said, T will hide it.’ Iffe sa.ys, ‘Give it here, I will hide it; I will put it away.’ He had a black billbook and put the $45.00 in it, and he said, ‘Where is your silver?’ I said, ‘I got it down there,’ and he said, ‘Give it here.’ He said, ‘If you are scared of me, don’t hand it to me.’ I said, ‘Oh, no, I believe you are all right.’ I handed it to him and he taken this silver and put it in this little purse, and taken the purse and silver, and threw it under the pillow, inside the sheet around the pillow, and threw the facing of the pillow opening to the north. The bed was extending east and west, and threw the open end to the north with my silver, $11 and something, and he had $45.00 of my greenbacks, and he put that under his pillow, and turned the opening to the south, and went to bed and had the door locked. He asked if I was easy to wake, and I said that I was. The train is due five something, and we got up in the morning and he woke before I did. Q.- What did he say to you with reference to giving this money back? A. He said he would give it back in the morning. Q. What was the value of this money? A. $45 in greenbacks. Q. Worth $45? A. Yes, sir; I reckon. Three tens and three fives. Q. Go ahead. A. He woke up before I did. I woke when the other fellow did. And we woke up and I put on my stuff and he did, too, and it was about train time, and he taken the bills and put in his pocket, and I taken the silver and we walked right over to the depot, and the train just came in and we had our sacks and little things we had; it over to a little restaurant northwest of the Frisco depot. We got the stuff, and came back and got our tickets to Frederick. I paid for mine, and he paid for his, and sat down. The train was standing there a few minutes, and he got up and walked around, and I got up and he went back, and I went back in, too. We sat down. The train stood a few minutes and when it left, I believe it was a little this side of Davidson, he got up and went to the closet, and he came back and sat down, and he said this is pretty rough riding. I said, ‘Isn’t this easy riding?’ When we got here we went down here to the restaurant to eat. I paid for it, and come up and went down the street to Cooks, I believe, and walked, he walked in the closet and he said he got to go there, and just a little after sun-up he said the postoffice is open then, and he went on and he said, ‘By George, I lost your money.’ He says, ‘The only thing I can do is to go over and have a phone to the conductor or telegram.’ I said, ‘No use to do that,’ and he said, ‘Yes, that’s right, if somebody found it, he would have taken it.’ So he ‘Says, T might have lost it in the closet of Mr. Cooks,’ and he went back and he went in there and looked around and couldn’t see it, and he walked back out. Mr. McConnell, we cashed a check at Mr.-at Vernon. I knew him, and when we came to town it was too late, and we-walked in and I knew him, and I been there, and Mr. McConnell gave me a check for $38,. and I walked to Mr.-store and hands him the check, and he read it, $38, and he paid it, and I told him I was coming to Frederick, and. he said he had a store there at Frederick, I believe he. said he had one, and he give us a recommendation and got a piece of paper, and Mr. Bivens taken it and put it in the purse where he had his money and where he put mine, and . when we got here he taken it and give it to. Mr. McConnell, and Mr. McConnell told us he .could find us a job, .and he phoned around and Craig, he lived .about a mile from town, I believe, he said Mr. Craig would be in at dinner with a load of corn, and we stood around there awhile and I said, ‘Let’s go out and pick cotton,’ and he said, ‘Let’s wait until night and go in the wagon,’ and he said, ‘What’s the use of walking.’ I said, T can pick some cotton before night.’ And he says, ‘We might go out, and the cotton might not be worth a damn.’ He said, ‘If you want to go, we will go.’ We started out and got out, and Mr. Mongold came along with a wagon and asked where were we going, and we told him, and we rode with him, and he said he had some cotton to pick, and he said he was going to haul the wagon to the field as soon as he goes home, and talked about how much he was giving, six-bits. I said, T will go,’ and we went out and picked before dinner. I picked 23 pounds, and Mr. Bivens picked 24 pounds. I couldn’t hardly eat anything. I .felt so sorry my money was gone. I said to Mr. Mongold, I said I, didn’t believe I needed any water. I thought that is the way I can get a chance to get away. We went back to the field, and he said, ‘You believe I got that money,’ and I said, ‘For all I know you might.’ And he said, T wouldn’t do that. I wouldn’t do anjdiody that way.’ And finally, I had about six or seven pounds in my sack, and I said, ‘1 got to get some water.’ I felt sick, and I taken my sack and emptied it and put in my little stuff and walked to town, and I told Mr. Mongold I was coming to town and what few pounds I picked he could have for that dinner. I walked to town and came around to that gin down yonder below the railroad and met a fellow there. He was talking, and I told him all about it — (Objected to by counsel for defendant as to what he told him.) A. I just told him — (Objected to by counsel for the defendant.) By the Court: Don’t tell what’he said. Go ahead and tell what you did. A. I -seen Mr. Waggoner and told him all about it, and Mr. Waggoner said — • .(Objected to.) Q. Tell what he did? A. Well, Mr. Waggoner went in and called another fellow. This other- fellow is around here somewhere. Said for him to come along. (Objected to.) Q. Mr. Veal? A. Yes, and we all three got in a buggy and drove out there, and we got over three-fourths of the way and met Mr. Mongold coming in with a load of corn, and we passed Mr. Mongold, and he said, ‘Are you coming back out?’ and I said, ‘Yes,’ and he said that fellow is gone. (Objected to.) Q. Go ahead and tell what you did. A. We turned around and came back to town, and we hunted all over in town and could not find him. I talked something about Davidson. I asked him how far it was to Davidson. I believe Mr. Bivens thought I went to Davidson, so we looked all over town, and Mr. Waggoner sent and hired a stable team and we all three of us got something to eat and got in the buggy and drove out there, and got out there out of town, and we looked for tracks and seen his tracks. I said that’s about the size of the shoe, and we met a fellow and asked him— (Objected tp by counsel for the defendant.) A. We caught him, anyhow, a little piece from Davidson, a few miles probably. Q. What time of the evening was that? A. After sun-down already. Q. What did he do when 'you caught him ? A. I stopped the horses and Mr. Waggoner drew his sixshooter, and they told him to throw up his hands, and he threw up one, and Mr. Waggoner said, ‘Throw up your other hand,’ and the pocketbook, he threw it back and threw it up, and they asked him how much money he had. They picked the pocketbook up with the money in it. Q Picked up what money? A. I believe that fellow, whatever his name is, he picked it up. Pie threw away the purse that had the greenbacks in. Q. Bivens did? A. Yes, sir. Q. When he was arrested? A. Yes, sir. So Mr. Waggoner told him, he asked him how much money he had, and he said he had $45.50, and they looked in the purse and Mr. Waggoner said that don’t look like 50 cents. Pie said, ‘What for did you throw that money away?’ and he said, T thought you probably was burglars, and I threw it off.’ Pie asked him where did he get the money, and he said he worked hard for it. Q. Did he take and keep this money by your consent or without it? Q. Was it by your consent and permission that he kept this money? A. No, I didn’t want him to keep it. Q. I understood you to say a while ago that when you gave him the money, he said he would give it back the next day? A. Yes, sir; he said that. I told him I would send it off the next morning as soon as the postoffice was open. I told him I had some debts I wanted to pay. He said, you just keep that money and finally you will have about 75 or 100 dollars, and then pay it off. Pie says that’s the way I do. Q. Do you know what state and county this is? A. Oklahoma, Tillman county. (Cross-examined.) Q. When he told you these things about keeping your money, that you would get it back the next day, did you, did that cause you turn it over? A. Yes, sir. Q. I believe you stated that you asked him for the money after you got to Frederick? A. Yes, sir; I asked him for it. Q. He told you he lost it? A. He said he lost it and said he would pick cotton and pay for it.”
    John Waggoner testified that about half past six when he arrested the defendant near Davidson, the defendant threw a purse-away; that it contained forty-five dollars in one wad, and a separate five dollar bill; that the defendant said that it was his money.
    Mr. Veal testified that he was with Mr. Waggoner when the defendant was arrested, and he picked up the pocketbook when the defendant threw it away and gave it to Mr. Waggoner.
    Mr. Mongold testified that he hired the prosecuting witness and the defendant to pick cotton; that the little fellow, Weihs. left after dinner; that the defendant left that afternoon and said that he had some money that belonged to the little boy; that he asked the defendant how much he owed the boy, and defendant said five dollars,, and said that the boy had given him forty-five dollars, and that he had lost it. When the defendant left he said that he was going to town to find the boy and go home with him.
    The foregoing is all the evidence offered on the part of the state.
    The defendant demurred to the evidence on the following grounds: First: As not sufficient to warrant a conviction, and for the further reason that the proof shows, that if the defendant is guilty of any offense, it is the offense of obtaining property by false pretenses or embezzlement, and not by grand -larceny, as charged in the information, and moved the court to direct a verdict of not guilty. The demurrer and motion were overruled and exception allowed.
    The defendant testified on his own behalf in substance as follows: That he met Weihs near Vernon, Texas; that Weihs had forty-five dollars in greenbacks, and gave him the money to keep for him until the following Saturday; that they came from Vernon, Texas, to Frederick the next morning and went to pick cotton for Mr. Mongold; that afternoon Weihs told him he was sick and left, but did not come back; that about an hour after Weihs left the defendant went to the house and asked where the boy had gone. He told Mongold that he believed that he would go to town and find the boy; that he had some money belonging to him; that on his way to town he met Mr. Waggoner, and dropped the money because he thought they were robbers; that when they arrested him, he told them that it was his money; that five dollars of the fifty dollars in the purse was his money; that when he was arrested he was lost and did not know just where he was, and that the boy had never asked him to give back the money.
    The foregoing is all the testimony offered on the trial. The jury returned a verdict of guilty. From an order overruling a motion for a new trial, the defendant appeals.

      Hudson & Mounts, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYTE, J.

The first assignment of error is that the court erred in overruling the demurrer to the information. The objection here urged by the defendant’s counsel to the sufficiency of the information is, that it attempts to charge “theft by fraud” in general terms, and that the failure to allege the specific acts constituting fraud is fatal. Citing the case of Martin v. Territory, 4 Okla. 105.

The Supreme Court of Oklahoma Territory passed directly upon this question in the case of Flohr v. Territory, 14 Okla. 477. Mr. Justice Gillette, delivering the opinion of the court, after reviewing numerous decisions, in conclusion said:

“We are referred to no case or authorities supporting the defendant’s contention in this respect, except the case of Martin v. Territory, supra, which, as we have before remarked, does not go to the extent of holding that in an indictment where a fraudulent taking is charged, it is necessary to set out the acts relied upon as constituting the fraud, and we must hold, therefore, on the strength of the authorities above cited, that it is not necessary, and that the crime of larceny may be satisfactorily shown by proof that, at the time of taking the property, it was taken with the felonious intent tp convert it to the taker’s own use, and to deprive the owner thereof, regardless of the fact as to whether the taking was accomplished by fraud or stealth.”

We think the information sufficiently charges the crime of larceny by fraud.

The next assignment, that the court erred in overruling the defendant’s demurrer to the evidence introduced by the state, is equally untenable.

Under the provisions of the Penal Code, larceny and embezzlement are defined as follows:

Section 2591, Snyder’s Stat.:

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

Section 2609:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”

As to the distinction between the two crimes as defined by the statute, in the case of Flohr v. Territory, supra, it is said:

“In larceny the criminal intent must exist at the time of taking the property, and it must be taken, when taken, with intent to appropriate it to the taker’s own use, and to deprive another thereof. It may be taken by stealth with such intent, or it m'ay be taken with the owner's knowledge through fraudulent practice, by which the owner was induced to give up possession without parting with the. title or right to the property, and if the taker receives it under such circumstances intending to convert it to his own use and thereby deprive the owner thereof, the crime is larceny.
“If, on the other hand, the property is received by the taker as a bailment, or the right of possession is entrusted to him by the owner with intent to confer upon the taker- the present use and possession of the property to be afterwards re-delivered to the owner, and the taker receives it intending a compliance with the terms upon which he receives it, and after he has received it with such intent, he converts it to his own use intending to deprive the owner thereof, the crime is embezzlement.”

If the owner of personal property parts with the possession of the same for a particular purpose, and the person who’ receives the possession avowedly for that purpose has a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert it, the crime is larceny.

Under this assignment it is also contended that the evidence is not sufficient to sustain a conviction, because the owner voluntarily parted with the possession of his property for a specified time and then did not ask a return of the same.

We think this was entirely a question for the jury. Taking all the facts and circumstances surrounding the taking of the money by the defendant from the owner, they are sufficient to show the felonious intent of the defendant at the time of the taking, and that it was taken by fraud, with the design then 'entertained to deprive the owner thereof, which the state was bound to prove, and the" fact that the defendant in possession of the stolen property distinctly asserted his ownership, is evidence of the fact that he intended at the time of the taking to deprive the owner thereof and convert it to his own use.

It is further contended that if the proof on the part of the prosecution tends to show the commission of larceny by fraud, the commission of the crime was complete in the state of Texas; that larceny by fraud is in the nature of a local offense, and for this reason the defendant could not be convicted of the offense in Oklahoma.

We think the fact that the defendant secured the possession of the property in Texas in no way detracts from the force and effect of his fraudulent acts, and the facts in evidence showing fraudulent intent in taking the property from the owner. • The right of possession, as well-as the right of the property, remained in the owner all the time as a matter of law, if the original taking and transportation of the property, was under .such circumstances, as constituted a larceny.

Our Penal Code provides that (section 2605, Snyder’s Stat.) :

“Every person who steals the property of another, in any other state or country, and brings the same into this state may be convicted and punished in the same manner as if such larceny had been committed in this state, and such larceny may be charged to have been committed in any town or city into and through which such stolen property has been brought.”

We do n'ot deem it necessary to further discuss the arguments upon the defendant’s behalf, because we regard the contentions as entirely devoid of merit.

Not a single authority is cited supporting the assignments of error predicated on the instructions requested and refused, and on the instructions given. We find that the instructions given by the court fairly state the law of the case.

Our, conclusion is that the defendant had a fair, impartial, and legal trial, and the judgment of conviction is manifestly just. It will therefore be affirmed.

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


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    CARL CLOYD v. STATE.
    No. A-1005.
    Opinion Filed January 16, 1912.
    (119 Pac. 1125.)
    1. APPEAL AND ERROR — Record—Notice of Appeal — ^Dismissal. An appeal to tbe Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by the law; and, where the record before this court fails to show notices of appeal and .proof of service as required by law, the case will be dismissed.
    2. APPEAL AND ERROR — Notice. Under the law now in force, notice of appeal in felony cases must be served within six months from date of sentence; and this must affirmatively appear before jurisdiction will be acquired on appeal.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County; Preslie B. Cole, Judge.

    Carl Cloyd was convicted 'of manslaughter in the first degree, and appeals.
    Dismissed.

      C. H. Tully, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

On the 23d day of September, 1910, appellant was convicted by a jury in the district court of McIntosh county for the offense of manslaüghter in the first degree, and his punishment was assessed at 39 years’ confinement in the state penitentiary at hard labor. On the 28th day of September following, appellant was duly sentenced by the court in accordance with said verdict. From this sentence, appellant prosecuted an appeal to this court. This appeal was filed on January 26, 1911. On October 24, 1911, the Attorney General filed a motion to dismiss this appeal, because notices of appeal were not served, as the law requires, upon the county attorney and. the clerk of the district court of McIntosh county.

Sections 6948 and 6949 of Snyder’s Comp. Daws Okla. are as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered; Provided, however, that the trial court dr judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the jitdgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.
“An appeal is taken by the service of a motion upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be -found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

In the case of Boneparte v. United States, 3 Okla. Cr. 345, 106 Pac. 347, Judge Doyle, speaking for this court, said:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter of legislative control, and the appeal must be taken in the manner prescribed by the law; and, where the record before this court fails to show notices of appeal and proof of service as required by law, the case will be dismissed.”

We find that the motion filed by the Attorney General is well, taken, and as the record does not show that notices of appeal were served as required by law, we have never acquired jurisdiction of. the cause, and the appeal is therefore dismissed, with directions to the district court of McIntosh county to proceed with the execution of its judgment.

ARMSTRONG and DOYLE, JJ., concur.


text:
    FRANK FRIEL v. STATE.
    No. A-1019.
    Opinion Filed January 17, 1912.
    (119 Pac. 1124.)
    1. EVIDENCE — Admissibility — Character of Accused. Where a defendant is on trial charged with violating the prohibitory liquor law, it is error for the trial court to refuse to allow the defendant to prove his general reputation in the community in which he resides as to being a law-abiding citizen, and that the defendant did not have the reputation of being a whisky peddler, or a person engaged in the business of violating the prohibitory liquor law.
    2. WITNESSES — Corroboration. Where the testimony of a witness is contradicted in the trial of a cause, it is competent, for the purpose of supporting his testimony, to introduce evidence as to . the general reputation of the witness for truth and veracity.
    (Syllabus by the Court.)

      Appeal from Canadian County Court; H'. L. Fogg, Judge.

    Frank Friel was convicted of an unlawful sale of liquor, and appeals.
    Reversed and remanded.

      W. A. Maurer, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

On the 26th day of November, 1910, appellant was found guilty by the jury of having unlawfully sold intoxicating liquors, and his punishment was assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

Upon the trial of this cause, it was proven that appellant owned and conducted a livery barn in Calumet, in Canadian county, Okla. The prosecuting witness testified that he purchased a bottle of whisky from appellant at said livery barn on the date named in the information. Appellant took the stand as a witness in his own behalf, and directly denied that he had sold the whisky as testified to by the prosecuting witness. Appellant then placed a witness upon the stand who testified that he had been acquainted with appellant between six and seven years — ever since appellant resided in Canadian county, Okla.; that he lived on an adjoining farm to appellant, and was intimately acquainted with him. Appellant then offered to prove by said witness that during this time appellant had enjoyed the general reputation in the community in which he resided of being a law-abiding citizen, and that the general reputation of appellant in that community for truth and veracity was good; that appellant did not have, and never had had, the reputation in the community where he resided and did business, of being a whisky peddler, or of selling intoxicating liquors. The county attorney objected to all of this evidence, upon the ground that it was incompetent, irrelevant, and immaterial. The objection was by the court sustained, and appellant was not permitted to prove his reputation touching these matters, to which ruling of the court appellant excepted. Under the testimony in this case, we think that all of this evidence was material and should have been received.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


author: FURMAN, P. J. PER CURIAM.

text:
    L. B. GRITTS v. STATE.
    No. A-615.
    Opinion Filed November 16, 1911.
    Rehearing Denied January 22, 1912.
    (118 Pac. 673.)
    1. APPEAL AND ERROR — Objections in Lower Court — Scope and Effect, (a) Where evidence is admitted without objection, it is too late upon appeal to complain of the introduction of such evidence.
    (b) When specific objections are urged to the admission of evidence in the trial court, these specific objections only will be considered upon appeal, and counsel will not then be heard to offer different objections to the testimony than those presented to and passed upon by the trial court.
    2. SAME — Review— Questions of Fact. Where there is any evidence in a case from which the jury can legitimately arrive at the conclusion of the defendant’s guilt, this court will not grant a new trial upon the ground that the verdict of the jury is contrary to the evidence, unless it appears from the record that the jury was influenced by improper motives in arriving at their verdict.
    3. EVIDENCE — Weight and Sufficiency — Venue. Venue may be proven by circumstantial evidence, and it is not necessary that it should be proven beyond a reasonable doubt. Only those allegations in the indictment which involve the guilt of the defendant are required by law to be proven beyond a reasonable doubt.
    On Motion eor Rehearing.
    4. APPEAL — Rehearing—Oral Argument. While this court is always willing to grant reasonable postponements of a case in order to give counsel for an appellant an opportunity to make oral arguments, yet counsel must exercise some diligence in matters of this sort, and where postponements have been granted and counsel have failed and neglected to be present and make oral arguments, a request to be heard in oral argument on motion for rehearing will not be considered by this court.
    (Syllabus by the Court.)

      Appeal from District Court; A'dair County; J. H. King, Judge.

    L. B. Gritts was convicted of forgery, and his punishment assessed at confinement.in the penitentiary for three years, and he
    appeals.
    Affirmed.

      J. H. Huckleberry, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

1. Appellant was on trial in the district court of Adair county charged with the offense of having knowingly, falsely, and feloniously certified as notary public that one' Johnson T. French had appeared before him and acknowledged the execution of a deed conveying certain real estate therein described, when, in fact, the said J. T. French did not make said acknowledgment, nor authorize appellant to make said certificate of acknowledgment. Upon the trial of said cause the county attorney offered in evidence a certified copy of the deed, the acknowledgment to which was charged to have been falsely made by appellant. The record discloses that the following then occurred :

“Mr. Arnold: Your honor, we desire to offer in evidence a certified copy of this deed, the original of which is not in the possession of the plaintiff, and its whereabouts is to the state unknown.
“Mr. Cravens: We will object, as the defendant is charged with the forgery of a deed, and our contention is that the purported copy, of the deed is incompetent to show the execution of the original instrument in support of this criminal charge. We will further object to the introduction of this deed, because the indictment purports to charge this defendant with the forgery of the deed and the statement in the indictment that he falsely certified that one French had appeared before him and made the acknowledgment. Fie is not charged with the forgery of the name of French, but that French appeared before him and made the acknowledgment. The crime charged is the making of a false certificate, and not forgery.
“The Court: The objections will be overruled.
“Mr. Cravens: We will except to the ruling.”

It is seen from this that appellant presented to the court at the time this evidence was-'introduced the specific objections upon which he then relied. In the brief filed in this court appellant’s counsel do not attempt to urge any of the objections to the introduction of this testimony presented to the trial court, but rely entirely upon the ground that the certified copy of the deed received in evidence was not admissible until the absence of the original deed had been satisfactorily accounted for. If this objection had been urged in the lower court, it would have been good. The objection actually made must be considered in connection with the statement made by the county attorney at the time this evidence was offered, and it amounts to a waiver of proof that the original deed was not in the possession of the state, and could not be produced by the state.

There is no question but that primary evidence of a written instrument is the writing itself, and that secondary evidence cannot be used to prove the contents of a written instrument until the loss of such written instrument has been shown or its absence satisfactorily accounted for. But, when evidence is received without objection during a trial, it is too late to object to the introduction of such evidence on appeal; and, when specific objections are urged to the admission of evidence in the trial court, these specific objections only will be considered upon appeal. If the objection which counsel for appellant now urge against the introduction of this deed had been presented to the trial court, an opportunity would have been given the state to account for the nonintroduction of the original deed, and thereby the commission of error would have been avoided. The fact that counsel for appellant did not urge this objection at the proper time, if not a tacit admission that the objection could and would have been avoided by proof upon the part of the state, at least it estops counsel from raising this question now. We therefore hold that this objection comes too late when urged for the first time on appeal.

2. It is contended in the brief of counsel for appellant that the verdict of the jury is contrary to the evidence. Appellant was tried in the county in which he resided and among people who knew him. It is true that the evidence is entirely circumstantial, but for the statement testified to by one of the witnesses for the state — that he heard the appellant say that he believed he would plead guilty to the charge. It is true that on cross-examination counsel for appellant did ask the witness'if appellant'did not say this in a laughing way, and if appellant did not'state in the same conversation that he was innocent, and did not know anything about the commission of the crime charged against him, to which the witness assented. This went, however, to the weight of the testimony, and not to its ádmissibility. We cannot see how an innocent man could treat such a serious matter in a laughing manner. We think that the state’s testimony is sufficient to sustain the verdict.

3. The objection is made that the venue was not proven. Venue may be proven by circumstantial evidence, and it is not necessary to prove venue beyond a reasonable doubt. Only those allegations in an indictment or information which involve the guilt of the defendant are required by law to be proven beyond a reasonable doubt. See Fuller v. Territory, 2 Okla. Cr. 88, 99 Pac. 1098; Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988. We find in the statement of the testimony a copy of the deed introduced in evidence. The acknowledgment is as follows:

“State of Oklahoma, Adair County — ss.: Before me-, a notary public in and for said county and state, on this 20th day of August, 1909, personally appeared Johnson T. French, to me well known to be the identical person who executed the within and foregoing instrument and acknowledged that he had executed the same as his free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and seal, as such notary public on the day last above mentioned. E. B. Gritts, Notary Public. [Seal] My commission expires Apr. 22, 1913.”

It was proven that appellant resided and had his office in Stilwell, Adair county. Evidence offered in behalf of the appellant practically admits that the venue was proven by his attempt to prove an alibi to the effect that he was in Tahlequah, Cherokee county, on the 20th day of August, 1909, and therefore could not have taken the acknowledgment to the deed in question on said date in Adair county. We think the circumstances in this case sufficiently show that this offense was committed in Adair county.

The other questions raised on the trial of the case were not urged on appeal, and have therefore been abandoned.

We find no material error in the record, and the judgment of the lower court, therefore, is in all things affirmed. The punishment of appellant is to begin from the date of his reception in the penitentiary.

ARMSTRONG and DOYLE, JJ., concur.

Oh MotioN eor Rehearing.

PER CURIAM.

The following motion for rehearing has been filed in this court:

“Now comes the plaintiff in error by his attorneys, K. S. Múrchisón and S. M. Rutherford, and moves the court to grant a rehearing in the above styled cause for the following reasons: First. That the verdict rendered in the trial court was contrary to the law and the evidence, and- that in consideration of said cause upon appeal the court’s attention was not especially called to this phase of the case. ■ The testimony in said case consisted of circumstantial evidence wholly, the principal phase of which being the certified copy o,f a record purporting to show a forged deed and that this plaintiff in error, defendant below, forged the same. Upon the effect of this testimony the court’s attention not having been especially directed, we feel that the court fell into error in its estimation of this piece of testimony in, determining its weight.,
“K. S. Murchison,
“S. M. Ruti-iereord,
“Attys. for plaintiff in error.”

Counsel who now represent appellant are mistaken in stating that the attention of the court was not especially directed to the point on which they now rely. On the contrary, Mr. J. H. Huckleberry, who then represented appellant, filed one of the strongest briefs in behalf of appellant that has been presented to this court, and the case was affirmed, not because the rights of appellant' had been neglected by his attorney, but because the court was satisfied that the law was against appellant. This case was set repeatedly on the docket of this court and was continued from term to term and from time to time in order to give counsel for appellant an opportunity to appear and make oral arguments, until finally the court was compelled to submit the case on the briefs alone. This being the case and being fully satisfied that the original opinion is correct, we do not believe that we should hear oral arguments now.

Attorneys and clients must learn that it is no light ánd laughing matter to be convicted of a felony and to appeal from that conviction to this court. We are always willing to make any reasonable postponements of a cause to enable counsel to appear and make oral arguments, but there must be a limit to these postponements. Counsel must at least exercise some diligence and make some effort to be present to argue their cases. The idea that this cpurt has nothing else to do but to wait on the pleasure of attorneys cannot be entertained. We granted six postponements in this case upon application of counsel for appellant in order that we might hear an oral argument in behalf of appellant. It is too late now to demand the right to be heard by oral argument.

• Upon the trial of this case Mr. Joseph M. Thompson, a reputable witness, entitled to entire confidence and credit, testified in behalf of the state as follows:

“Q. Do you know the defendant, U. B. Gritts? A. Yes, sir. Q. How long have you known him? A. I don’t know exactly, a good many years though. Q. Have you, since the 18th day of September, had any conversation with this defendant, relative to the execution of a certain deed of or by Johnson T. French? A. Yes, sir. Q. You may state what that conversation was? A. This Jrappened in front of the First State Bank of Tahlequah; we were speaking about the case in thé presence of one Murchison, Lawyer Murchison, of Tahlequah, and Mr. Murchison spoke about the innocence of this party— Mr. Cravens: Q. Which party? Witness; A. L. B. Gritts; and I said well, he might be innocent, but still he was in bad company; we spoke on about the case, and finally Gritts said that he believed he would plead guilty to this charge; that uvas about all the conversation we had.”

If appellant was not guilty why was he voluntarily making such statements as this? It is true that on cross-examination, counsel for appellant attempted to prove that this statement was made in a laughing manner, but that it wRs made there can be no doubt; and we cannot understand how an}' innocent man would laugh about such a serious matter as this. It is time for all men who are disposed to violate the laws of Oklahoma to understand it is not a laughing matter to be charged with crime in the courts of this state. Appellant heard this testimony and while he was on the stand he did not attempt to either deny or -explain it. The record shows that one of the attorneys who represents appellant was present and heard appellant make -this statement. If, as a matter of fact, appellant did. not practically admit his guilt on that occasion, it was the duty of this attorney to take the stand and give his version of the statement which was made. It is too late after a verdict of guilty has been rendered to offer such testimony. There is one thing certain, and that is this, no defendant should be permitted to make a laughing stock of the courts of this-state. We have no sort of doubt of this man’s guilt. He was tried in the county where he had lived for many years, by a jury who knew him. There is no intimation in the record that he was unfairly treated at the trial. We are not going to presume that the witnesses, the trial judge, the county attorney, and the jury entered into a conspiracy against appellant.

Motion for a rehearing is denied and the mandate will issue without further delay.