text:
    D. P. PENROD v. STATE.
    No. A-5901.
    Opinion Filed Aug. 25, 1927.
    (258 Pac. 1052.)
    Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

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

The record discloses that at the time charged in the information certain officers in the nighttime overtook a service car driven by defendant some Sy2 miles out of Wetumka. They observed a man in it who by his conduct attracted their attention and turned and followed the car. They drove up close and sounded the horn, but the car did not move over, and about this time some whisky was thrown out, a part of which splashed on the car driven by the officers. The officers then crowded the car to the side of the road and stopped it. Nothing was said until the car stopped. Defendant was driving and the man in the rear seat was one Ed Pugh, who had 5 gallons of whisky, a part of which he had broken. Pugh pleaded guilty and sought to take all the blame. Defendant denied ownership of the whisky and testified that he did not know Pugh was transporting whisky and that he had no knowledge or connection with it. Pugh testified, in part:

“* * * Q. What did you have in the car? A. I had whisky in the back seat.
“Q. How much? A. Five gallons.
“Q. Where did you get it? A. I don’t know the place. I don’t know; some place in the woods.
“Q. He stopped the car to let you get it? A. Yes, sir.
“Q. You carried the sack up to the car, had one batch in one sack? A. I don’t know. I wouldn’t be positive about that, but I think both in a sack.
“Q. Were you drunk when you put the whisky in the car? A. I was beastly drunk.
“Q. How long were you gone after the car had stopped before you got back to the car? A. I don’t remember just how long.
“Q. Penrod stayed there at the car? A. I don’t think he was with me. * * *”
Defendant testified:
“* * * q You know Ed Pugh? A. Yes, sir.
“Q. Did you make a drive for him that night? A. Yes, sir. * * *
“Q. What did he do? A. He just walked up and asked me if I would make a drive for him, and I said I would.
“Q. Where did you go? A. North of Dustin. * * *
“Q. Where did you stop, at some house? A. Yes, sir.
“Q. Did you get out?A. No, sir; I didn’t.
“Q. Did he get out? A. Yes, sir.
“Q. How long was he gone? A. I don’t recollect; no, sir. I went to sleep and don’t know just how long, something like an hour.
“Q. When you woke up, was he back? A. Yes, sir.
“Q. How did you know he was back? A. Something shook the car and then he said, I am ready to go.” * ❖
“Q. Tell what happened at that time, just previous to the time you stopped? A. Well, when I saw the reflection of the lights of the car I just supposed it was someone wanting to pass me, and I was in what you call the middle of the road, and I pulled over and let the car pass then; just about that time something whipped against my car, and just as soon as I heard Roy speak, I knew him.
'“Q. What did he do? A. He stopped my car.
“Q. Did he run his car into your car? A. Yes; his fender hit my car.
“Q. Did it lock the cars? A. I could have drove on, if I had wanted to.
“Q. All right, now*, did you have some whisky in the car? A. They said they did; I never did see it.
“Q. Did Ed Pugh tell you where he was going before you left town? A. No, sir.
“Q. Did he tell you what he had — did you know he had any whisky in the car? A. No, sir. * * *”
On cross-examination, he said:
“Q. And you don’t know whether you were asleep or not? A. No, sir.
“Q. And you didn’t know what he put in the car? A. No, sir.* * *”

The contention made is that the evidence connecting defendant with the transportation is circumstantial and not sufficient to exclude every other reasonable hypothesis than that of guilt. The evidence detailed, that is, the driving of the car at the time and under the circumstances shown, the quantity of whisky in the car, the reluctance of defendant to stop, and his statements to the officers after he had stopped, are inconsistent with any reasonable conclusion than that of his guilt.

The further contention is that the evidence was procured by an unreasonable search, in violation of defendant’s constitutional rights. No search was in fact made. The testimony of defendant that he did not know of the whisky being in his car and had no connection with it precludes him from objecting to its admissibility in evidence. Upon this theory he is not in a position to complain of a search of his codefendant Pugh, even if one had been made, since it is well settled that the right to complain is a personal privilege available only to the person searched or the owner of the contraband discovered. Ragland v. Commonwealth, 204 Ky. 598, 265 S. W. 15, is a case where a defendant disclaimed ownership of a suitcase which Was sitting at her feet when questioned about it by the sheriff. She was afterwards convicted. At the trial she objected to the admissibility of the evidence on the ground that she had been illegally searched. It was held that when she disclaimed ownership she was not in a position to urge this objection. This case depends on whether or not there is evidence j connecting defendant with the transportation of the whisky found in the possession of his codefendant Phgh. We find there is ample evidence to sustain the judgment.

We are not unmindful of the holding of this court in the case of Childress v. State, 31 Okla. Cr. 208, 238 P. 218, and the case of Graham v. State, 31 Okla. Cr. 135, 237 P. 462. See, also, in this connection, the cases of McAdams v. State, 30 Okla. Cr. 207, 235 P. 241, Barnett v. State, 31 Okla. Cr. 413, 239 P. 680, and Wasson v. State, 33 Okla. Cr. 70, 242 P. 779. A different situation is presented where an officer by force or intimidation procured from the person or immediate presence and possession of an accused evidence which is later sought to be used against him, where such officer had no search warrant and has not made a legal arrest.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    TIMMIE FOREMAN v. STATE.
    No. A-5908.
    Opinion Filed Aug. 25, 1927.
    (259 Pac. 176.)

      Car lile & Wall, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county for manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

Only two assignments of error are argued in the brief: The first is that the court erred in permitting the state to impeach two of its own witnesses, Bertha Foutz and George Copeland. Bertha Foutz testified in substance that she had known both the deceased and the defendant for four or five years. That she was present when the homicide occurred. That deceased stopped where defendant was, accused defendant of having his whisky. Defendant said he did not have any. Defendant told deceased to go hack, and deceased said that he would get his whisky or cut defendant’s throat. That he walked toward defendant with his hands in his pocket. Defendant twice ordered him to stop, and that witness also asked him to stop, and upon his refusal to do so, defendant shot him. She further testified that a short time after the homicide she had signed a statement for the" county attorney in which she said that she did not hear anything that was said between the defendant and deceased. That at one time she told the county attorney and sheriff that she did not know anything about the shooting at all. She explained these statements to the officers by saying that she had slipped off from her parents on the night of the homicide to go to a dance and did not want them to know' she had been there. The state was permitted to introduce her written statement made to the county attorney in evidence. Where a witness has made a statement which induces the party calling him to believe that he will testify to a certain state of facts, but when called testifies to a different state of facts injurious to the party calling him and conflicting with his previous statements, such party has the right to impeach the witness upon such contradictory statements, and may introduce in evidence statements made by the witness conflicting with his testimony so given, not as substantive evidence as proving the truth of the statement, but as affecting the credibility of the witness. Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. It would be a perversion of justice to say that one deceived or entrapped by a witness in this manner may not explain his acts in calling the witness and counteract the injurious effect of his testimony. Sturgis v. State, 2 Okla. Cr. 362, l02 P. 57; Paris v. United States, 5 Okla. Cr. 601, 115 P. 373.

The impeaching of a witness in such case rests largely in the sound discretion of the trial court. When a contradictory statement is admitted, the trial court should limit and restrict the application of such testimony to impeachment only, but the failure to do this is not necessarily reversible error. Jones v. United States, 14 Okla. 356, 78 P. 100. The same situation exists, except in a less degree, to the testimony of the witness George Copeland.

The other assignment of error argued by counsel for defendant is that the court erred in permitting the county attorney to introduce the purported dying declaration of the deceased. To render a dying declaration admissible, it is essential to prove as a preliminary fact that the declaration was made under a sense of impending death and after hope of recovery had been abandoned. It is not necessary, however, that the injured person should have declared that he is going to die, or that he is without hope. Such belief may be proved by the surrounding circumstances. When a dying declaration is offered in evidence, it is the duty of the trial court to determine its admissibility by first requiring the necessary preliminary proof. This should be made, in the first instance, in the absence of the jury, and then if the court finds it to be admissible, the preliminary proof and the declaration should be given anew before the jury. If it is found insufficient in the first instance, neither the preliminary proof nor declaration is given to the jury. In this case, the preliminary proof is not sufficient to render admissible the declaration. The following is the strongest testimony offered. Mrs. Fronie Gable, mother of deceased, testified:

“Q. You are the same Mrs. Fronie Gable who was on the witness stand while ago, are you? A. Yes.
“Q. Who did you have with Clarence? A. Dr. Cheek.
“Q. You stated while ago that Dr. Cheek told you what Clarence’s condition was in the presence of Clarence? What did he say his condition w:as? A. He said the chances were slim for him.”

On cross-examination, she said.

“Q. I will ask you to state if Clarence did not think he was going to get well himself at that time? A. No, sir; I don’t think he did.
“Q. Do you know whether he did or not? A. No, sir.
“Q. You don’t know what Clarence thought— whether he thought he was going to get well or thought he was going to die? A. No, sir.”

On redirect:

“Q. Well, did he talk to you at Ft. Smith? A. He said that he might never get up.* * *”

Dr. Cheek testified:

“* * * Q. What would you say as to the probability of one shot in those parts, of his chances of living? A. There was one shot that made it almost impossible for him to live.
“Q. I will ask you to state if you told Clarence Gable that he could not get well? A. I did.”

On cross-examination:

“Q. When did you tell him that? A. At different times.
“Q. You were never quite able to make him believe it, were you doctor? A. I never had any talk to him that it would kill him.
“Q. And he always — you say that you never at any time told him that it would kill him? A. No. I told him that it was impossible for him to get well. That he would always be paralyzed.
“Q. Always be paralyzed from the waist down? A. Yes, sir.
“Q. And you never told him that he was going to die? A. No, sir.”

H. D. Pitehford, county attorney, testified:

“Q. Do you know that he was conscious? A. Yes, sir.
“Q. H.ow do you know it? A. Talked to him.
“Q. Had you ever talked to him before? A. Yes, sir.
“Q. Down here at — where? A. Down here at Norris.
“Q. And he refused to make a statement there to you, didn’t he? A. He did not.
“Q. Did he talk perfectly normal? A. He did.
“Q. And he was bound to have been in his right mind? A. Yes, sir.”

The dying declaration is as follows:

“Ft. Smith, Arkansas, 12 — 29—24. Statement of Clarence Gable, taken at Ft. Smith, Ark., on December 29th, at 4:20 p. m. I feel pretty bad and do not know when I will get up and may be never. I have no use of my legs. I am shot in three different places, one shot in the neck, one through the right lung, and one through ribs on right side. I had been to a dance at Bill Rolands and coming home, Jim Jackson, George Copeland, and myself were walking in head, .and I stopped, and Timmie Foreman and Bertha Foutz came up, and I took a step or two towards them, and Timmie pulled his gun, and I said ‘There’s no use of that,’ and he started to shooting. We had not been fussing, and I did not have a gun or knife or any kind of weapon, and I did not say anything to_ him or do anything to cause him to shoot me. Timmie had a half gallon of whisky, and we both took a drink or two out of it, but neither of us were very drunk. I realize I am pretty bad off and may not get well, and with that in mind I make this statement in the presence of Miss Eva Atwood, of Ft. Smith, Ark., Mrs. Fronie Gable, and Harry D. Pitchford, county attorney of Sequoyah county, Okla.
“[Signed] Clarence Gable.
“Witnesses: Eva Atwbod. Fronie Gable. Harry D. Pitchford.”

The dying declaration is not competent under the proof made. The only matter for our determination is whether admitting of it in evidence requires a reversal.

Section 2822, Comp. Stat. 1921, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Under this section of the statute, where a defendant is clearly guilty, this court has frequently held that it should not reverse a judgment on account of an error which does not deprive him of some substantial, material right. Maynes v. State, 6 Okla. Cr. 487, 119 P. 644; Koozer v. State, 7 Okla. Cr. 336, 123 P. 554; Atchison v. State, 3 Okla. Cr. 296, 105 P. 387.

The defendant in giving his version of the homicide testified:

“Q. He came back there where you were? A. Yes, sir.
“Q. What did he say? A. He came up and asked about the whisky. Asked me what did I do with it, and I told him I didn’t have none of his whisky.
“Q. What did he say? A. He accused me of having it, and told him I didn't have it and told him to go on, and he wouldn’t do it, and I asked him again — I asked him twice, and this girl asked him to go" on, and I asked Mm again, and he followed me up, and I told him that I didn’t want to have no trouble and that I would talk to him about it some other time, and I told him—
“Q. Where did he have his hands? A. When he first came up he had his hands in his pocket, and when he walked up he pulled his hand out.
“Q. Tell the jury what happened from there on? A. When he pulled them out, that is when I began telling him to leave me alone — I asked him three times to leave me alone, and go on back, and the kid asked him once, and I shot him, and after he fell I went up and asked if he wanted me to take him home and that I was sorry I had done it and wouldn’t have done it, if I hadn’t had it to do. * * *
“Q. How come you to shoot him, Timmie? A. Well. I knew he was fussjr, and these boys had told me about what he was going to do, I did not know whether he had this knife or not, and I did not want him to get to me because I did not want him to hurt me—
“Q. Did you shoot to kill him? A. No, sir, I shot at his arm.
“Q. What happened when you shot the first time? A. Nothing, he didn’t move, or nothing. Well, he just stood there. He didn’t fall or nothing, and after I shot the next shot he kinder stepped or stooped over, and the next time he fell.”

The defendant then testified as follows:

“A. I was not drunk, I just barely felt it. I just had a drink or two.”

On cross-examination, the defendant was asked how far he was from Clarence when he shot him, to which he answered:

“A. I don’t know. I guess as far as from here tithe table. I do not know how many feet; 10 or 12.
“Q. When Clarence came up, he was 10 or 12 feet from you? A. No, sir; not when he first came up there.
“Q. How far was he from you when he first came up? A. He was right up in reach of me.
“Q. When he first come up? A. Yes, sir; and he followed me up. I backed off from him.
“Q When did you get 10 or 12 feet away? A. I was TO or 12 feet from him.
“Q. He was right up at you at first, wasn’t he? A. I said 10—
“Q. He was right at you, wasn’t he? A. No; he wasn’t in reach of me.
“Q. He never did get in reach of you, did he? A. No, sir; never did get in reach of me.
“Q. Then you started to backing back and got 10 or 12 feet away? A. He kept following me up, and I told him to stop. * * *”
“Q. I will ask you if Clarence Gable didn’t fall in the middle of the road? A. Well down across the road, something like that. * * *
“Q. And you were away over there on the bank? A. Yes, sir, at the edge of the road.
“Q. That is 10 or 16 steps, the bank is, you mean the embankment of the creek? A. This little hill there.
“Q. Ten or 12 feet from where you shot him? A. Something like that. I wouldn’t say. * * *”

These excerpts from his testimony, with other parts not quoted, disclosed that deceased and defendant had been friendly. Both were drinking. . Deceased was 10 or 12 feet from defendant, who was standing still and had no weapon visible and was making no attempt to injure him. They had had no previous difficulty of any kind, and the testimony of defendant makes it at least a case of manslaughter in the first degree. Since the punishment assessed is the minimum, the admitting in evidence of a dying declaration could not have been prejudicial and was harmless error.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    Ex parte HOWARD LANSDON. Ex parte DANIEL DANIELS.
    Nos. 6661, 6662.
    Opinion Filed Aug. 27, 1927.
    (258 Pac. 1065.)
    C. F. Gowdy, for petitioners.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The petitioners, Howard Lansdon and Daniel Daniels, it appears, were arrested in Nowata county, and were jointly charged with the crime of assault with intent to kill one H. B. Lowery and one Rupert Lemons, and taken before W. H. Thomason, county judge, and on their preliminary examination were held to the- district court, and the appearance bond of each fixed in the sum of $5,000.

It is alleged that they are unlawfully imprisoned by W. F. Gillespey, sheriff of said county, because the evidence introduced before said committing magistrate upon such preliminary examination wholly fails to show that the petitioners are guilty of the crime charged or any other crime.

It is further alleged that petitioners applied to the district judge of said judicial district for writs of habeas corpus and the same were denied.

It is further alleged that the bail fixed is excessive, and that they will be forced to remain in jail until the October term of court unless the writs are allowed.

In response to a rule to show cause, returnable June 30, 1927, a hearing was had upon the petitions and the returns thereto, showing that said petitioners had been by information filed in the district court of Nowata county, charged with the crime of assault with intent to kill as set forth in the preliminary complaint.

Thus it appears that the petitioners are being held by virtue of an information preferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Nowata county.

Under section 432, C. S. 1921, the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon a preliminary examination to show probable cause after an information has been duly filed, based upon a preliminary examination had in the case.

The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law.

In Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142, we said:

“The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon the preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by a motion to quash, or motion to set aside the information.”

On the authority of the Burroughs Case the writs were denied.

It was further ordered, adjudged, and decreed that under the weak and unsatisfactory, nature of the evidence disclosed by a transcript of the same taken upon the preliminary examination, and in view of the fact that no trial could be had before next October, the amount of $5,000 fixed as bond for the appearance of each petitioner is excessive and the same should be reduced.

It is therefore ordered and adjudged that the bond of each petitioner be fixed in the sum of $1,000, conditioned as by law required, and upon the approval of such bonds that petitioners be released, the same to be approved by the court clerk of said county.

EDWARDS' and DAVENPORT, JJ., concur.


text:
    ROSWELL HAMILTON v. STATE.
    No. A-6348.
    Opinion Filed Aug. 27, 1927.
    (259 Pac. 168.)

      Morgan, Osmond & Morgan and F. E. Sides, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county for the crime of murder and his punishment fixed at death.

The record discloses that the defendant is a negro residing at the town of Wetumka. On April 10, 1926, Mitchell Compier, of advanced years, a deputy sheriff, and Weldon Wilson, 22 years old, acting as a night policeman at Wetumka, set out to procure evidence concerning the illicit sale of intoxicating liquor. They drove into the negro section of the town and procured defendant to get them a pint of whisky. He went away and later returned with the whisky and was arrested by the officers, who placed him in a Ford coupe and started to jail, Compier driving and Wilson standing on the running board. It was about 10 o’clock at night, and while driving along the street defendant shot Wilson, who fell from the running board, and he then shot Compier. Wilson died in about 40 minutes and Compier died instantly. As the car was still moving defendant leaped from it and escaped, -but was apprehended about 24 hours later. There was evidence of loud talk in the car just before the shooting. When arrested, defendant admitted the killing and stated that he had lost the pistol, an automatic, with which he did the killing; he had another upon his person when arrested. The pistol belonging to Compier was found on his body and the pistol of Wilson was found at the spot where he fell from the car, each was fully loaded. Wilson made a dying declaration, in substance, that they did not search defendant, as they did not think he was armed. When arrested, defendant had a wound on the arm. He testified that after the officers started to jail with him, Wilson attempted to force him to disclose where he had procured the whisky and beat him over the head with a pistol, and that in doing so the gun discharged, killing Compier and shooting defendant in the arm.

Only three assignments of error are argued. First. That the court erred in denying defendant a change of venue. Second. Error of the court in refusing defendant’s requested instructions Nos. 5 and 6. Third. Misconduct of the prosecution in his concluding argument. These assignments will be discussed in the order presented.

Upon the first assignment defendant contends that under the showing made it Was an abuse of discretion to deny him a change of venue. The application for change was verified by the affidavit of three citizens of the county setting out that, on account of the bias and prejudice of the inhabitants of the county, defendant could not have a fair trial; that he was a negro and was charged with the killing of Weldon Wilson and Mitch e™ Com-pier. That Compier was an Indian peace officer and had been such for many years and was well acquainted throughout the county, and that Wilson was the son of a peace officer, a white man, and who was likewise well acquainted and well liked in the county. That the papers printed in the county had given an inflammatory account of the tragedy, copies of which were attached to the application, and that defendant had been removed from the county- and confined in the penitentiary to prevent mob violence. To this showing the state offered 37 affidavits from various citizens of the county, and at the request of defendant various of these affiants were questioned orally, and in qualifying the jurors defendant exercised but 5 of 9 peremptory challenges allowed him by law, evidently being satisfied with the jurors called. The presumption of law is that a defendant can have a fair and impartial trial in the county where the offense was committed, and the burden is on him to show that he cannot have a fair trial in that county. The prosecution fully met and overcame the showing made by defendant. Upon the showing made, we think the trial court properly exercised its discretion, and no error was committed in overruling the application for a change of venue.

Upon the second assignment of error, and requested instructions Nos. 5 and 6 are, in substance, that if the killing was done by defendant in resisting abusive treatment by the officers after his arrest, and in doing so he used no more force than appeared to him necessary for his protection, the jury should acquit. They were given in modified form, and the instructions, as given, as a whole correctly state the issues of law. The defendant excepted to instructions 10 and 11' which cover his theory, assigning the reason that they constitute a comment on the evidence and place the burden of proof on defendant. We think neither ground of these exceptions well founded and that these instructions, taken in connection with the other instructions, are not erroneous.

The final assignment of error, that the argument of the county attorney constitutes an appeal to race prejudice and is prejudicial, is more serious. Our Constitution provides that justice shall be administered without sale, denial, delay, or prejudice. The death penalty, the extreme punishment of the law, should ¡be inflicted only in those cases where the court can say that the trial is free from errors which were calculated to or probably affected the verdict or influenced the jury in assessing the punishment. The defendant is a negro, on trial for killing a white man before a court and jury composed exclusively of white persons.

Several times during the presenting of the evidence, the witnesses referred to defendant as a “nigger,” and in an instance or two the county attorney, in propounding questions, referred to him as a “nigger.” In the closing argument to the jury, the county attorney said in part:

“* * * You see they have argued a great deal about sympathy. They have argued nothing else to you but maudlin sympathy because he is a black man, they call him to you. They object to him being called a ‘nigger.’ I don’t know why. I just thought that is what he is, a ‘nigger’ man. * * * That was not in the testimony, and he had no right to mention it because it was not in the testimony, but he testified there, that was later on, that the negro himself stated after he made this statement and they objected to it, he stated he was punching him with a gun and then he shot him. * * * Now, gentlemen of the jury, that is the only question in this case. Is that negro telling you the truth? I want to say to you on the outset right now, and I want you to understand that I am not begging and I am not whining, and I want you to have the nerve of your convictions and don’t want you to comp in here with any little compromise verdict. If you believe the negro is telling the truth, if you believe he had a right to do it, then have the nerve to turn him loose because he gives us the truth about it, as that is all the state asks, but if you believe he committed the crime as I say, that is a cold-blooded, double murder up there on the streets of that little town of Wetumka, then from the evidence and the instructions, have the nerve to come in and say he is guilty and give him the penalty that you think will be in conformity with the crime that he committed, and there is no judgment that you can render that would be commensurate with the crime; but, on the other hand, as I stated, you think he did not commit any crime, to make a long story short, it is up to you to have the nerve and courage of your conviction, regardless of what the people of the state, the people of the county, or the people in the courtroom believe, if you believe — if you believed that this negro was innocent, if I believed his statement when I heard it, whether he was telling the truth, so help me God, I wouldn’t fear no man, because if I was on the jury and I believed his statements and believed he was telling the truth and believed he killed these officers in self-defense, so help me God, I would turn him loose; but if I believed he was guilty of murder, as I do believe from the testimony in this case that he is, then, gentlemen of the jury, I wouldn’t hesitate to pull the lever that took the life of this black boy.
“By Mr. Sides: Now, your honor, we object to the term and appellation ‘nigger.’
“By Mr. Fancher: They said he was black. They told me and he told me he was of different blood.
“By the Court: Let the objection be entered, Mr. County Attorney.
“By Mr. Fancher (continuing) : They told me he was different blood, different blood runs in his ■ veins, that he was a black man. The gentleman who makes the objection said he wasn’t our kind of folks, but when I call him that, however, they don’t like it. That is the proposition, gentlemen of the jury. Now, here, let’s take this testimony. They don’t stay with it. All right, here is the negro said this: That they were coming in a ear down there. That he went down and got the whisky and come back, and that they gave him the money, three dollars and a half. He said he took half of that. He is the only man says that. The only one that went down there with the officers and got that whisky for them. They say these officers ought not to use any deceit. I don’t care how you feel about it. They were trying to catch these ‘nigger’ bootleggers, and I think they had a right to “do that. They are trying to enforce the laws of your county while you are asleep. They are trying to keep your county safe and secure for you and for your families and your babies. * * * They make no effort to show how he could have done that. That man already dead in his tracks, yet they want you to say that poor old Mitch, sitting there under that wheel hunkered down with two shots through him, was making an effort to shoot this ‘nigger’ when he shot back in the car. Now if you believe that, I can’t help it. * * * If he had had an opportunity, if he had give him the least show in the world, there would have been a dead ‘nigger’ out there in that car instead of a dead deputy sheriff.
“By Mr. Sides: We renew our objection to the term ‘nigger’ used by the county attorney in the argument.
“By the Court: All right.
“By Mr. Fancher (continuing) : Gentlemen of the jury, if it is against the law in this country to say ‘nigger,’ I don’t know it. I don’t know why. I know I am talking about just what he is. He is a negro man, * * * and then they talk about his rights, and that you must not take his life. No, sir; it is all right for him to kill white men; yes, kill all you want to, but you must be awful careful and not kill him. * * * May I ask you to think of that young man that lies in his grave with his head shot off, and that Mitchell Compier lies out here in this lonely Indian graveyard With two bullet holes through his brain at the hands of this black man.
“By Mr. Sides: Your honor, please, we again renew our objection. The witness’ name is Roswell Hamilton, and he is also known as the defendant, and, your honor, I think same is unwarranted.
“By the Court: What do you want me to do?
“By Mr. Sides: I want the — I want you to admonish the county attorney or overrule my objection.
“By the Court: The objection will be overruled.
“By Mr. Sides: Give me an exception.
“By Mr. Fancher: Gentlemen of the jury, look at him and see whether he is black.
“By Mr. Sides: I again renew the objection.
“By the Court: All right, the defendant will be given an exception.
“* * * Now, which are you going to believe? If that doesn’t convince your mind that that boy when you remember that he was just marking time to meet his Maker, when he knew that in a very short time that he had to meet him, he said, ‘We didn’t search him,’ and I believe every word that he uttered, and I believe you gentlemen believe it, too, and then have the bold courage to stand up before an intelligent jury and say that you ought to believe this negro in preference to the boy on his deathbed, I say, gentlemen of the jury, before Í would say that I want God-o-Mighty to strike me from this earth, in the presence of his mother, tell her that that dying boy lied about it. Would you do it? I wouldn’t do it for anything in this world, for all the money that you could get from the negroes of this county; no, I wouldn’t. I would believe that boy. I would not go tell a story about it and forget that good boy. Now I say that you ought to be convinced beyond a reasonable doubt that would convince any white man beyond a reasonable doubt. * * * He wants to put that negro man up against Roy Reed. * * * But, gentlemen of the jury, if you believe beyond a reasonable doubt from this testimony that this ‘nigger’ is guilty of this abominable crime, then have the nerve to say so and come in like cool, calm men with a verdict and say that he should die. * *•*”

That the foregoing excerpts from the argument of the county attorney are an appeal to race prejudice is plain. Cases where appeals of this kind have had the attention of the courts are numerous both in civil and in criminal cases. Where the language is of such character, that it is calculated to influence the verdict, it is generally said that the injury done by such remarks cannot be atoned by the retraction of the argument or by its disapproval by the trial judge, neither of which was done in this case. All persons accused of crime, whatever their race, color, or condition, should stand on exactly the same footing in a court of justice. It is the duty of the court to see that a defendant is tried according to the law and the evidence, free from any appeal to race prejudice. Particularly is this true where a negro charged with an offense against a white man is tried before a white court and an exclusively white jury, and where the death sentence, the extreme penalty known to the law, may be imposed. In Harris v. State, 96 Miss. 379, 50 So. 626, Whitfield, Chief Justice, in reversing the case, said:

“* * * It certainly needs no argument to show that these remarks of the district attorney, the representative of the state, in his closing argument to the jury, were a direct appeal to race prejudice. * * * Every defendant at the bar of his country, white or black, must be accorded a fair trial according to the law of the land, and that law knows no color. * * *”

See, also, Collins v. State, 100 Miss. 435, 56 So. 527; Tannehill v. State, 159 Ala. 51, 48 So. 662; James v. State, 170 Ala. 72, 54 So. 494; Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393.

In the case of State v. Lee, 130 La. 477, 58 So. 155, in syllabus 6, it is held:

“On the trial of a negro for murder, the district attorney, in argument, stated ‘that the brother of deceased, a white man, was present at the trial, had come from the state of Alabama, was from a good family, and his people expected a verdict at the hands of the jury; that if the jury were not to convict this man it will be giving a license to every negro to kill any white man on any pretext, and without excuse’ — and the trial court gave no reprimand or caution or instruction to disregard the expressions of the district attorney; the trial court stating that the brother of deceased had testified as to the purpose of Ms presence, without objection by the defense, and that the district attorney stopped as soon as objection was made. Held, that the district attorney’s language was an appeal to race prejudice, and reversible error.”

The same court in the case of State v. Bessa, 115 La. 259, 38 So. 985, said:

“* * * Why did the district attorney bring up the matter of blood, if not to draw the color line? Here was a jury all white, and two negroes being tried for striking a white man and nearly killing him. The court thinks it knows enough of the situation between the whites and negroes in Louisiana to know that the average white man is prone enough to be prejudiced in such a case, without being exhorted thereto by the law officer of the government, and that, such an appeal having been once made, the effects thereof cannot be counteracted by any mere cautionary words of sober reason that may be uttered by the judge.”

In the early case of Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467, it was said:

“Where the Assistant United States Attorney, in his argument to the jury, went outside of the record and appealed to the passions and prejudices of the jury, and objection was made and overruled, the strength of the testimony against the defendant will be considered, and if the improper statements may have determined the verdict, a new trial will be granted.”

And further:

“A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and appeals to prejudice, he ceases to properly represent the public interest. * * * The only w*ay to secure fair and impartial trials is to set aside the verdicts so procured. * * *”

In the case of Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, it was held:

“On the trial of a negro charged with the murder of a white man, before a jury of white men, the county attorney in his opening argument referred to the defendant as ‘This black murderer.’ On objection being made the court admonished counsel to be temperate in his remarks. The county attorney in his closing argument referred to the defendant as ‘This coal black murderer.’ Again, objection being made, the court peremptorily overruled the same. The language objected to, held to be grossly improper, and prejudicial to the defendant; and the refusal of the court to interfere and to properly instruct the jury to disregard the same, prejudicial error.”

Having reached the conclusion that the argument was prejudicial as constituting an appeal to race prejudice, it follows that the case should be reversed and remanded for a new trial, and that the warden of the penitentiary, upon proper demand, shall deliver the body of defendant to the sheriff of Hughes county to be transported for trial to said Hughes county.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    WEBB EASTERWOOD v. STATE.
    No. A-5881.
    Opinion Filed Aug. 27, 1927.
    Rehearing Denied Sept. 17, 1927.
    (259 Pac. 181.)

      R. C. Roland, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of willfully injuring a public building, and was sentenced to serve a term of four years in the state penitentiary.

The information was filed in the district court of Carter county April 4, 1925. Defendant was arraigned on April 16, refused to plead, and the court entered his plea of not guilty. The trial was had on April 20, and the jury returned its verdict on the same day. On April 23, defendant filed his motion for a new trial, which was overruled on April 24, and on the same day he filed a motion in arrest of judgment, which was overruled and a formal judgment and sentence entered on April 24, 1925. The case-made was completed and served on July 23, 1925, was settled, signed, and filed in the distinct court September 10, 1925, but the appeal was not lodged in this court until October 31', 1925, more than six months from the time judgment was rendered.

Section 2808, Comp. Stat. 1921, is as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

Under this statute it has been uniformly held that, where the appeal is not filed within the time provided by law, this court does not acquire jurisdiction. This has been so often decided that citation of authorities is unnecessary.

The attempted appeal is dismissed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    J. J. TIPTON v. STATE.
    No. A-6071.
    Opinion Filed Aug. 27, 1927.
    (258 Pac. 1053.)
    Percy Powers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The appellant was convicted on an information charging that he did have in his possession about one-half gallon of whisky with the unlawful intent to sell the same. The jury failed to agree on the punishment. Motion for new trial was duly filed, overruled, and the court sentenced the defendant to imprisonment in jail for 60 days and to pay a fine of $250.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and that the punishment imposed is excessive.

It appears that in executing a search warrant issued by the county judge, J. W. Counts, city marshal of Miangum, visited the store of appellant, in Mangum. He testified :

“I saw Mr. Tipton pass the door going into the bedroom; his wife was lying on the bed and he shook her and said something to her. I stepped in the door and saw a sack at the head of the bed; he picked up a hammer from the floor and started beating the sack. I jerked him flat on his back on the floor, and he struck at me with the sack, and I struck at him with my gun; just as quick as I had a chance I served him with the search warrant'. There was whisky on the floor, at least a half gallon.”

Mrs. Tipton, wife of appellant, testified:

“We had a little store in front and a bedroom "and kitchen behind. I was lying down with my baby in my arms. There was no whisky on the place; we had two or three ounces when the baby was born; we didn’t have electric lights, and my father gave us a gas lamp, generated with alcohol to use until we got the lights; and we had a jar of denatured alcohol, which was in a tow sack. Mr. Counts came in the room and commenced beating my husband over the head with his gun. My husband did not break this jar with a hammer.”

Jewell Lesor testified that he was a farmer, living at Yenson; that he was in the store and saw Don Counts hit at Tipton and then lost his gun; that Tipton got hold of him and walked out-the door with him; that he did not see any whisky there.

Wilford Perrin testified that he was in the store writing out the order for some candy; that he saw Counts hit Tipton with a gun and the gun come out of his hand, and Bud Henry picked up the gun, and Tipton pushed Counts outside of the store.

W. M. Cox, father of Mrs. Tipton, exhibited the lamp and explained to the jury how to generate it with wood alcohol, and exhibited a small nickel plated pump for pumping air into the lamp.

As a witness in his own behalf, J. J. Tipton testified that he had bought some candy from a salesman and went into the back room to see if his wife wanted anything; that Don Counts stepped in and said, “What are you doing” and hauled off and struck him, bringing blood, and struck him again and knocked him across a wash boiler of water; then he pushed his gun in his stomach and said, “Stand back or I will shoot your damn guts out, you come and go with me,” and he said, “All right,” and started with him; then Counts drew back and hit at him and his gun flew out of his hand, and he just grabbed him and threw him out; that Bud Henry picked up the gun; and Counts grabbed for the gun, and he just laid him on the ground and said to him, “Mr. Counts, I will turn the gun loose if you promise not to hit me any more,” and he said, “I won’t hit you any more;” that there was no whisky on the place; that the jar in the sack that was broken in the melee contained wood alcohol ; that he did not know that Counts was an officer; that he had been a farmer boy all his life until he opened this little grocery store; that he raised 17 bales of cotton there the year before on the Scott place; that he was never before arrested.

Upon a careful consideration of the evidence, we are constrained to hold that it is not sufficient to sustain the verdict.

When we recall the presumption that the law always indulges as to the innocence of one accused of crime and the necessity of establishing the guilt of the defendant beyond a reasonable doubt, we think that it would be a subversion of those rules to allow this conviction to stand. The defendant, as a witness, met the charge with a positive denial of possession, and in this he is corroborated by his wife, and, considering the testimony of tw'o disinterested witnesses, we cannot help thinking that a conviction upon testimony so weak and unsatisfactory as that on the part of the state was more the result of prejudice and partiality than the dispassionate conclusion of the jury upon the facts in evidence. The judgment is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte ARTHUR BIRKES.
    No. A-6640.
    Opinion Filed Aug. 27, 1927.
    (258 Pac. 1055.)
    Moman Pruiett and W. M. Bowles, for petitioner.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. W. Howard, County Atty., of Perry, for respondent.
   DOYLE, P. J.

In this proceeding petitioner, Arthur Birkes, by his attorneys, has presented to this court a verified petition wherein he alleges that he is unlawfully restrained of his liberty in the county jail of Noble county by W. A. Ricker, sheriff; that the cause of the said restraint is that he was committed to said county jail by C. L. Woodbury, justice of the peace in and for the city of Perry, as an examining magistrate upon a preliminary examination held upon a complaint, charging petitioner with the murder of Dr. Harry McQuown, in said county on March 23, 1927; that on the 25th day of May, 1927, upon a hearing had before the district court of Noble county, Hon. W. E. Rice, district judge, said judge refused to allow petitioner bail; and that your petitioner is now held by virtue of the commitment issued by the justice of the peace aforesaid.

And he further alleges that he is not guilty of the crime of murder as charged in the information; that upon the evidence introduced at said preliminary examination, together with the testimony of the petitioner as a witness in his own behalf, and the testimony of five other named witnesses, which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident, nor the presumption thereof great.

A transcript of the testimony taken upon the preliminary examination is annexed to and made a part of the petition.

Following the hearing on the 6th day of June, 1927, and upon a consideration of the testimony, it was adjudged that petitioner is entitled to be admitted to bail, and it was further ordered that said petitioner be admitted to bail in the sum of $20,000, bond to be conditioned as required by law, said bond to be approved by the court clerk of Noble county.

EDWARDS and DAVENPORT, JJ., concur.


author: TER CURIAM.

text:
    CHARLEY REDUS v. STATE.
    No. A-5987.
    Opinion Filed Aug. 27, 1927.
    (259 Pac. 156.)
    Jas. A. Embry, for plaintiff in error.

      Édwin Dabney, Atty. Gen., for the State.
   TER CURIAM.

The plaintiff in error was convicted in the county court of Lincoln county on a charge of having possession of mash containing more than one-half of 1 per cent, of alcohol and sentenced to pay a fine of $50 and to serve 30 days in the county jail. The case was tried in August, 1925, and appeal filed December 30, 1'925. No brief has been filed in support of the appeal.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for jurisdictional errors and "will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

We have examined the record and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


author: DOYLE, P. J..

text:
    Ex parte CLAUDE H. CASTLEBURY.
    No. A-6657.
    Opinion Filed August 29, 1927.
    (259 Pac. 162.)
    King & Crawford, for petitioner.

      Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J..

The petitioner, Olaude H. Castle-bury, filed in this court June 20, 1927, a petition wherein he avers that he is illegally restrained of his liberty by W. B. Walker, sheriff of Pontotoc county, and that his unlawful imprisonment consists in this, to wit, that a warrant of commitment was issued by H. J. Brown, a justice of the peace in and for Ada township, Pontotoc county, upon a preliminary examination had upon a complaint, wherein petitioner was charged with the murder of Joe Correll, in said county, on or about the 14th day of June, 1927, by shooting him with a pistol.

It is further averred that, under the evidence introduced on said examination, petitioner was entitled to be discharged from custody, for the reason that there was no competent or legal evidence introduced on said preliminary examination showing the commission of the crime of murder. However, petitioner admits that he killed the said Joe Correll, but states that the act was justifiable homicide, and that he killed said Joe Correll in protecting his life, home, and property and did so on petitioner’s own premises, in the act of protecting himself from assault and to prevent deceased from forcibly entering his home.

Petitioner further avers that he is now in an advanced stage of tuberculosis, induced from gas, and that he has had frequent hemorrhages, which is shown by six doctor certificates attached hereto, each stating, further, that to leave him incarcerated in jail will endanger his life.

It is further averred that, owing to the absence of the district judge, he is unable to get a hearing on his petition for bail in the district court aforesaid, and praying that, if the court should be of the opinion that the evidence should be sufficient to hold petitioner on a charge of murder, he be admitted to bail, fixed at a reasonable amount, for the reason that tlie proof of his guilt is not evident nor the presumption thereof great.

On June 211, 1927, the cause was heard, and upon a consideration of the evidence presented we are of the opinion that the evidence adduced upon the preliminary examination was sufficient to warrant the committing magistrate to hold petitioner for trial for the crime of murder.

It is our opinion also, under the testimony submitted and the facts and circumstances in the case, that bail should be allowed.

It is therefore ordered that petitioner be admitted to bail in the sum of $20,000, bond to be conditioned as by law required, and to be approved by the court clerk of Pontotoc county.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte T. S. SNEED.
    No. A-6723.
    Opinion Filed Aug. 31, 1927.
    (259 Pac. 156.)
    Phillips & Huggins, for petitioner.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is a petition for writ of habeas corpus filed on behalf of T. S. Sneed, confined in the county jail of Seminole county by J. A. Doyle, sheriff, under a commitment, which, omitting formal parts, is as follows:

“Whereas, on the 3'0th day of July, 1927, in the county court in and for the county and state aforesaid, the above-named defendant, T. S. Sneed, was found guilty of crime of unlawful possession of intoxicating liquor and by said court adjudged to pay a fine of $100, costs of prosecution $-, county attorney’s fee $ — , and a jail sentence of 60 days and accruing costs $-.
“Now, therefore, you are commanded to take the defendant into your custody and confine him in the jail of said county in default of said fine and costs and until said jail sentence is satisfied.
“In testimony whereof, witness my hand at Wewoka, Okla., this the 30th day of July, 1927. J. E. Simpson, County Judge, Seminole County, Oklahoma. [Seal.]”

The record of the conviction and sentence, a duly certified copy of which is annexed to the petition, shows the following facts: The information filed August 1st charged that Tom Sneed, in Seminole county, on or about the 30th day of July, 1927, “did commit the crime of unlawful possession of Choctaw beer in manner and form as follows, that is to say, that on the date and day aforesaid the said Tom Sneed, then and there being, did then and there unlawfully have in his possession about 25 gallons of Choctaw beer.”

It is also shown that on a habeas corpus proceeding the county judge of said county denied the writ, and that the district judge of said county is absent from the state.

It is also stipulated that the information filed the third day after the commitment issued is the only information on file at this time.

Thus it appears, as alleged in the petition that there was no information on file when the commitment herein issued, and petitioner by virtue thereof committed to the county jail, and this is violation of the constitutional provision which prescribes:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.” Const, art. 2, § 17.

The averment that the information is insufficient to charge the offense of illegal possession of intoxicating liquor is well taken.

The information does not allege that the said Choctaw beer was an intoxicating liquor, or that it contained more than one-half of 1 per cent, of alcohol measured by volume.

It follows from what has been said that the petitioner is restrained of his liberty without due process of law, because the court sentencing him to such imprisonment without an information was without jurisdiction to pronounce the judgment or issue a commitment thereon.

The rule to show cause herein is made returnable to this court, provided that petitioner be released on bail in the sum of $500, which bail was given).

For the reason stated, it is the opinion of this court that petitioner is entitled to be discharged. It is so ordered, and his bond is exonerated.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte J. E. COKER.
    No. A-6646.
    Opinion Filed Aug. 31, 1927.
    (258 Pac. 1056.)
    Walter Hubbell and Morris & Tant, for petitioner.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Toby Morris, Co. Atty., of Walters, for the State.
   DOYLE, P. J.

This is a petition for writ of habeas corpus filed in this court June 9, 1927, whereby J. E. Coker seeks to obtain his discharge from the Cotton county jail on the ground that he is unlawfully restrained of his liberty by C. O. Hooper, sheriff.

It is averred that he is held in custody by virtue of a commitment issued by one Porter M. McCullum, justice of the peace of Devol, as a committing magistrate, upon a charge of embezzlement of the sum of $3,500 from the Walters National Bank of Walters.

It is further averred that the evidence introduced on the preliminary examination was insufficient to show that a crime was committed, of which he was guilty, and that there was no legal or competent evidence to show probable cause to believe petitioner guilty of the crime of embezzlement as charged; that said commitment was so issued without authority of law, and the same is therefore null and void.

A rule to show cause was issued, returnable June l’6th, at which time upon the hearing had the writ was denied.

We deem it sufficient to say that on a preliminary examination it is not necessary that the evidence on which the accused is held to answer be sufficient to support a conviction. Under the statute (section 2497, Comp. Stats. 1921) it is enough if it be shown that the offense was committed, and that there is sufficient cause for believing the defendant guilty thereof. Ex parte Roberts, 31 Okla. Cr. 314, 238 P. 867; Ex parte Miller, 29 Okla. Cr. 301, 233 P. 775.

Upon careful consideration of the evidence taken on the preliminary examination, it was the opinion of the court that the same is sufficient to warrant the holding of the petitioner for trial. Therefore the application for his discharge on the writ is denied.

EDWARDS and DAVENPORT, 'JJ., concur.


author: PER CURIAM.

text:
    In re J. F. HANDLEY.
    No. A-6510.
    Opinion Filed August 31, 1927.
    (258 Pac. 1118.)
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Petition for writ of habeas corpus, filed September 24, 1927, shows that petitioner was convicted upon a charge of conspiracy to violate the prohibition laws, and was sentenced to serve a term of two years in the penitentiary and to pay a fine of $10,000, and fixing his supersedeas bond in the sum of $12,000. It is further alleged that said judgment is void for the reason that the district court of Tillman county was without jurisdiction to try said cause, and without jurisdiction to fix a supersedeas bond, and, if said judgment is not void, then the amount fixed by said district court is excessive. On the same day the petition for the writ was denied, but the court further ordered and adjudged that said petitioner be allowed supersedeas bond in the sum of $6,000, the same to be approved by the court clerk of Tillman county; upon such approval said respondent was directed to discharge said petitioner from custody.


text:
    Ex parte ALEX WILKERSON.
    No. A-6687.
    Opinion Filed Aug. 31, 1927.
    (258 Pac. 1069.)
    L. M. Gensman, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

This is a petition for a writ of habeas corpus, filed by Alex Wilkerson, seeking his discharge from the custody of G. H. Frampton, sheriff of Comanche county. The undisputed facts are:

That petitioner was convicted on a charge that he did have intoxicating liquor in his possession with intent to sell the same; that the judgment was pronounced June 2, 1917, from which judgment an appeal was perfected to this court, and on April 10, 1919, the judgment was affirmed for failure to prosecute the appeal. 15 Okla. Cr. 689, 178 P. 895. It also appears from the testimony that by agreement of the county attorney and the sheriff, and the payment of costs while said appeal was pending, said cause would be dismissed, and that agreement was to receive the approval of the Governor; that this is shown by the testimony of the then county attorney and the respondent, and that the same was approved by subsequent county attorneys and county judges.

No sufficient reason is offered to show why, at this time, 10 years after said judgment was rendered, the same should be revived. We deem it sufficient to say, further detailing the facts of the case as shown by the evidence submitted, that the judgment and sentence has been satisfied in law, if not in fact (Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821), and that petitioner is entitled to be discharged. [

It is so ordered.


text:
    ALLEN DONAHUE v. STATE.
    No. A-5708.
    Opinion Filed Sept. 3, 1927.
    (259 Pac. 179.)

      Jesse Dunn and Jess L. Pullen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county on a charge of selling whisky to minors, and he was sentenced to pay a fine of $100 and to serve one year and one day in the state penitentiary.

It is charged in the information that on December 25, 1'924, defendant sold two pints of whisky to Rufus Findley and Jack Lebo, they being under the age of 21 years.

The record discloses that Findley and Lebo were minors. Findley testified that he and Lebo in one transaction bought the two pints of whisky from defendant and paid him $4 for it. He was not a willing witness. Lebo was also called, but denied that he and Findley purchased any whisky from defendant. He testified that when he met him Findley had the whisky. He admitted, however, that he became intoxicated and admitted that he told the county attorney they purchased the whisky from defendant. His evidence indicates that he was not a candid witness. The defense was an alibi. The evidence is conflicting, and its weight and the credibility of the witnesses was a question for the jury.

It is contended that the court erred in instructing the jury in substance that proof of the offense was not limited to the particular date charged in the information. After the jury had retired, they returned into the court room and inquired of the court if they were limited to the exact date, and the court orally informed them that they were not, but that the information reached back two years. No objection was made to the information given by the court until after the jury had been instructed to retire, and then the instruction was excepted to, not that it was oral, but a general exception. The proof tends to show but a single date, and the instruction that the charge reached back two years was improper, but it is not prejudicial. Ealum v. State, 32 Okla. Cr. 197, 239 P. 933.

It is next argued that the court erred in denying defendant a new trial on account of newly discovered evidence. The affidavits of several witnesses are attached setting out in substance that defendant was not at his home at the time charged. Some of these witnesses claim to have been with the defendant at the time in another part of the county. Some claim they were at his home at the time. This is not newly discovered evidence. Defendant certainly knew at the trial who were with him at the time charged, and if he did not know who was at his home on that occasion could easily have ascertained. Where defendant fails to show that he used due diligence to procure testimony in the first instance, his motion is properly overruled. Calvert v. State, 10 Okla. Cr. 185, 135 P. 737.

Complaint is also made that the court permitted the state to go into the reputation of defendant and to inquire concerning his previous convictions for violation of the prohibitory liquor law. There was an inquiry by the state concerning reputation in one instance before the defendant had opened the question, but defendant went into the matter of reputation, and it was principally of his witness that the state inquired. We think the single inquiry concerning reputation prior to the defendant going into that question does not require a reversal. For the purpose of affecting his credibility, the state had a right to show the prior conviction of a defendant. Hendrix v. State, 4 Okla. Cr. 612, 113 P. 244; Manning v. State, 7 Okla. Cr. 367, 123 P. 1029.

There are errors in the record, but not all are against defendant. After Lebo had testified in conflict with his statement to the county attorney, the state sought to inquire about his conversation and his written statement wherein he had stated he was present when the sale was made. This the court excluded. This court has several times held that where a party has been deceived or entrapped in the placing of a witness upon the stand, believing that he will testify to a certain state of facts, and the witness then testifies to a different state of facts conflicting with his previous statements to the party placing him on the stand, such party hag the right to introduce his previous statements for the purpose of affecting his credibility and to explain why he was called as a wtiness. Sturgis v. State, 2 Okla. Cr. 364, 102 P. 57: Paris v. United States, 5 Okla. Cr. 601, 115 P. 373; Foreman v. State, 38 Okla. Cr. 50, 259 P. 176.

Upon a consideration of the entire record, we are of the opinion that the various errors do not deprive defendant of any constitutional or statutory right to his prejudice, and that there is no miscarriage of justice.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author:
EDWARDS, J.
      EDWARDS, J.

text:
    WALTER COFFEY v. STATE.
    No. A-5309.
    Opinion Filed Jan. 22, 1927.
    Rehearing Denied Sept. 6, 1927.
    (258 Pac. 923.)

      Mathers & Coakley and R. C. Roland, for plaintiff in error.
    Geo. F. Short, Átty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of manslaughter in the first degree, and sentenced to a term of 15 years in the state penitentiary.

A brief statement of facts, as gathered from the record, is about as follows: Oh the night of February 1, 1924, defendant, who was a constable, attended a dance at the residence of one Hanway, near the little village of Cheek. There was evidence tending to prove he was intoxicated, but this was sharply refuted. Arch Carpenter, who lived at Ardmore, drove an automobile from that place to the northern part of Love county on a business transaction, and had with him in the car Ott Gould, the deceased, Gould’s wife, and her mother, Mrs. Wheeler. Returning from their business trip, they stopped for a while at the dance at Hanway’s and then drove on toward Ardmore. Carpenter was driving, and had in the front seat with him Mrs. Wheeler. Gould and his wife were in the back seat. About the time they left the Hanway’s, there was some shooting south of the place of the dance, and defendant preceded the car of Carpenter to the road intersection north of Hanway’s. As the Carpenter car came to the intersection, defendant stood at the intersection with his hat in one hand and his pistol in the other, waved and order them to halt. The car did not stop, but turned east at this road intersection, and, as it passed, defendant fired four or five times, one shot of which passed through the head of Gould, killing him instantly. Two or three other shots struck the automobile. The acquaintance between deceased and defendant was slight, and no personal element appears to have entered into the homicide. Defendant admits firing the shots, but his testimony is that, before leaving the house of Hanway’s, he heard some one shooting on the highway, and that he followed what he thought was the car from which the shooting was done and arrived at the crossroads, intending to stop the car and search ie for pistols and whisky; that he had his hat in his left hand and gun in his right hand and signaled for the car to stop and ordered it to halt; that the car speeded up and drove faster, and that he then fired four or five shots with his gun pointed toward the ground, intending to stop the car; that none of the shots were fired toward the Carpenter car.

The assignments of error presented may he grouped under three heads: First. Refusal of the court to grant a continuance. Second. Failure of the court to grant a change of venue. Third. Refusal to give requested instructions and error in certain instructions given.

The application for a change of venue is voluminous, containing a great number of affidavits filed for defendant, and a great number filed by the state contesting the application. Some prior difficulty in which the defendant had figured and the killing of a nephew of defendant some time before the trial is injected. The publication of the details of this offense by the press of Carter county, is also claimed to be prejudicial to defendant. The Ku Klux Klan parades across the pages and the statement that defendant is an “anti” is urged. We have examined this showing with care, and deem it unnecessary to recite the record upon these matters in detail. It is well settled that the granting or refusal of a change of venue is within the sound discretion of the trial court, and his ruling denying an application for a change of venue will not be disturbed by this court unless it is made to appear there was an abuse of discretion, the presumption being that a defendant can have a fair trial in the county in which the offense is charged to have been committed and the burden to overcome this presumption is on him. It is also held, where it is claimed in such application and supporting affidavits that, by reason of newspaper reports, or otherwise, the minds of the people of the county are prejudiced against a defendant, it is not an abuse of discretion to overrule such application, if such prima facie showing is answered and overcome by counter affidavits on the part of the state. See generally Maddox v. State, 12 Okla. Cr. 462, 158 P. 883; Smith v. State, 14 Okla. Cr. 348, 171 P. 341; Emert v. State, 17 Okla. Cr. 406, 189 P. 195; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Scott v. State, 29 Okla. Cr. 324, 233 P. 776; Johnson v. State, 35 Okla. Cr. 212, 249 P. 971.

Defendant was represented in the trial court by Mathers & Coakley, and R. C. Roland, members of the bar of Carter county. Before entering upon the trial, an application for continuance was filed on account of the absence of C. A. Coakley, a member of the firm of Mathers & Coakley, who had been subpoenaed to Washington City upon some federal matter. It is here contended that the denial of this application was error. An application for a continuance is addressed to the sound discretion of the trial court, and a refusal of such application is not error unless there was an abuse of such discretion. In the case of Payne v. State, 10 Okla. Cr. 314, 136 P. 201, it is said that an application for continuance on account of the absence of leading counsel is properly denied where defendant is duly represented by other counsel. To reverse a case on such grounds would be to place the power of continuance within the control of counsel. The overruling of the application for a continuance was not error. Cross v. State, 11 Okla. Cr. 118, 143 P. 202; Reed v. State, 14 Okla. Cr. 651, 174 P. 800.

Under the third grouping of errors assigned, complaint is made of the court’s refusal to give eight requested instructions, and the giving of the court’s instructions Nos. 3, 4, 5, 6, 7, and 9. These separate requests and exceptions will not be severally discussed. Among them is the° refusal of the court to submit an instruction on excusable homicide. This degree of homicide is defined by section 1752, Comp. Stat. 1921, and, under the definition there given, an instruction submitting excusable homicide is not applicable. The request was properly refused. Hallmark v. State, 22 Okla. Cr. 422, 212 P. 322; Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137.

Under this assignment it is strongly urged that defendant was entitled to have given his requested instruction submitting manslaughter in the second degree as defined by section 1745, Comp. Stat. 1921, which was refused by the court. It is the contention that the testimony of the defendant and of various other witnesses, that the shots were fired downward and not at the automobile in which deceased was riding, renders the homicide no more than manslaughter in the second degree. Defendant was a peace officer, and it is his theory that he was justified under the law in seeking to stop the car in which deceased was riding. Under the statute, a peace officer may, without a warrant, arrest a person for a public offense committed or attempted in his presence, or where a felony has been committed, although not in his presence, or where he has reasonable cause for believing the person arrested to have committed a felony, though not in his presence, or upon a charge made upon reasonable cause of the commission of a felony. Section 2471, Comp. Stat. 1921.

Under the record before us, there is no claim that deceased or any one in the car with him had committed a felony, or that any felony had been committed, or that there was any reasonable cause for believing deceased or any one in the car had committed a felony, or that any charge of the commission of a felony had been made to defendant. Nor is it, nor can it be contended that deceased, or any one in the car with him committed or attempted to commit any offense in the presence of defendant as a peace officer. At the time of the homicide, deceased was wholly without fault and defendant wholly without any right to arrest him, and his act in attempting to stop the car upon the highway was without authority of law.

The right of a peace officer to arrest, with or without a warrant, has been several times considered by this court. In the case of Roberson v. U. S., 4 Okla. Cr. 336, 111 P. 984, considering the statute of Indian Territory prior to statehood, which is substantially the same as our statute, it was said:

“An officer has no right, in the absence of resistance or flight, to use any force or violence upon one whom he is arresting for any offense; and also has no right to use a deadly weapon upon one whom he is attempting to arrest for a misdemeanor and who does not resist but merely flees.”

In the case of Sharp v. U. S., 6 Okla. Cr. 350, 118 P. 675, also based on the statutes of Indian Territory, it was said:

“A peace officer has no lawful right to shoot and kill a person that is attempting to escape arrest for a minor offense, by running away, and, if he does so, he will be guilty of murder or manslaughter as the case may be.”

In the case of Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375, it was said:

“A peace officer making an arrest without authority to do so occupies the same relations to the party arrested that any other private citizen would. He is a trespasser who has no right to detain the person, and hence no right to prevent an escape, and in preventing an escape he is still a trespasser.”

Defendant contends that if, at the time he fired the fatal shot, he did not fire at or towards the car in which deceased was, but in another direction for the purpose of halting the car, even though a trespasser in doing so, his offense would be no more than manslaughter in the second degree. This contention, however, we think is absolutely refuted by the physical facts. The evidence is that the bullet wound ranged almost on a level through the head of deceased, and that there were at least three and possibly four of the other bullets fired which struck the ear. It might be reasonable to assume that, defendant firing into the roadway or in some direction other than towards the car, a bullet might have ricochetted and killed deceased, but that three or four out of four or five bullets would do so as the car sped along the highway is wholly unreasonable. These physical facts refute his testimony, and the court was not required to ignore such physical facts and give an instruction contrary to them. Grandsen v. State, 12 Okla. Cr. 417, 158 P. 157, and authorities cited.

We are in full accord with the desire of the peace officers of this state to preserve order, apprehend offenders, and protect the law-abiding. There has been, however, in many quarters an erroneous belief among petit peace officers that they may lawfully shoot one guilty of a misdemeanor if he fails to stop when commanded, and in some cases this belief extends to the right to shoot one merely suspected of being guilty of a misdemeanor. The shooting here was wholly without justification. We find no error which materially prejudices the substantial rights of the defendant.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.

EDWARDS, J.

Since the opinion in this case was rendered, a petition for rehearing was duly filed in this court, and it is strongly urged that under all the facts the punishment is excessive. The record discloses that defendant was a peace officer, and the offense charged arose while he was acting in that capacity. While the offense is a serious one, and his ignorance of his duty almost inexcusable, there was no intent on the part of defendant to violate the law. We have given his contention consideration, and have reached the conclusion that under all the circumstances justice requires that the punishment be reduced from 15 years in the state penitentiary to 10 years, and, as modified, the sentence is. affirmed.

The petition for rehearing is denied.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    In re E. H. AMES.
    No. A-6314.
    Opinion Filed Sept. 6, 1927.
    (258 Pac. 1117.)
    H. H. Brown, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

Petition for habeas cojrpus filed June 15, 1926, shows that two separate complaints charging burglary were filed before H. M. Young, justice of the peace, Durant district, Bryan county, against petitioner, both of said offenses alleged to have been committed May 9, 1926, one for entering the W. B. Petty furniture store, in Durant, and one for entering the F. J. Harle jewelry store, in Durant. The committing magistrate fixed the bail in each case in the sum of $5,000. It is further alleged that said petitioner is not guilty of either of said offenses; that the evidence is insufficient to show probable cause. It is further alleged that the bond so fixed in each case is excessive, and the petition prays that, in case the writ is denied, the court reduce said appearance bond to a reasonable amount. On the same day the petition for the writ was denied, the court further ordered and adjudged that petitioner be allowed appearance bond in each case in the sum of $2,000. It is further, ordered, upon the agreement of counsel for petitioner and the- state, that the said bonds be approved by Walter J. Turnbull, county attorney of said county, and that upon the giving and approval of said bond in each case, conditioned as provided by law, the said petitioner, if not held upon any other charge, be discharged from custody.


text:
    AUGUST MESSALL v. STATE.
    No. A-6223.
    Opinion Filed Sept. 7, 1927.
    (258 Pac. 1118.)
    John Adams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, August Messall, was convicted in the district court of Logan county on an information charging that in said county, on the 18th day of July, 1925, he did feloniously attempt to ravish and carnally know one Martha Beuchaw, a female of the age of 17 years and not his wife, and his punishment fixed at imprisonment in the penitentiary for a term of three months. From the judgment entered in accordance with the verdict on September 21, 1925, an appeal was attempted to be taken by filing in this court on May 8, 1925, a petition in error with case-made. Counsel of record for plaintiff in error has filed a motion to dismiss his appeal. The motion to dismiss is sustained, the appeal herein is dismissed, and cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.


text:
    FAT WAMPLER v. STATE.
    No. A-6091.
    Opinion Filed Sept. 9, 1927.
    (258 Pac. 1118.)
    A. W. Turner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court upon a charge of the. unlawful sale of intoxicating liquor, and was sentenced to imprisonment in the county jail for a term of 90 days and to pay a fine of $250. The judgment in this case was rendered on November 2, 1925, and the appeal was lodged in this court on March 2, 1926. No briefs have been filed in support of the appeal, and no appearance for oral argument made at the time the case was submitted. We have examined the record, and find that the information correctly charges the offense, the evidence sustains the verdict, and no prejudicial error is apparent. The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    DICK LAMBERT v. STATE.
    No. A-6086.
    Opinion Filed Sept. 9, 1927.
    (258 Pac. 1118.)
    Henderson & Weaver, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted of the offense of having the unlawful possession of intoxicating liquor, and was sentenced to a term of 30 days in the county jail and to pay a fine of $50. Judgment was rendered on November 2, 1925, and the appeal was filed in this court on November 24, 1926. No briefs have been filed in support of the appeal, and no appearance for oral argument was made at the time the case was submitted. We have examined the record, and find that the information correctly charges the offense, the evidence sustains the verdict, and no prejudicial error is apparent. The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    P. G. (Old Man) WAMPLER v. STATE.
    No . A — —
    Opinion Filed Sept. 9, 1927.
    (258 Pac. 1119.)
    A. W. Turner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court upon a charge of the unlawful sale of intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $2.50. The judgment was rendered November 7, 1925, and the appeal lodged in this court on March 2, 1926. No briefs have been filed in support of the appeal, and no appearance for oral argument was made at the time the case was submitted. We have examined the record, and find that the information correctly charges the offense, the evidence sustains the verdict, and no prejudicial error is apparent. The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    Ex parte SMITH WHITENACK.
    No. A-6739.
    Opinion Filed Sept. 6, 1927.
    (259 Pac. 165.)

      Meacham & Meacham, Sylvester Grim, and Darnell & La Rue, for petitioner.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Willis Cooke, County Atty., and James H. Mathers, for the State.
   DOYLE, P. J.

In this proceeding the petitioner, Smith Whitenack, by his attorneys has presented to this court a verified petition wherein he alleges he is unlawfully imprisoned and restrained of his liberty in the county jail of Custer county, by the sheriff of said county; that the cause of said restraint is that he was committed to said county jail by E. J. Lindley, judge of the county court, sitting as an examining magistrate, upon preliminary examination held August 8, 1927, on a complaint charging that in the said county on the 29th day of July, 1927, he did kill and murder one Harrison Hicks, by shooting him with a pistol, and that thereafter, on the 23d day of August, 1927, upon a hearing had before the Hon. E. L. Mitchell, district judge, said judge refused to allow bail; that petitioner is now held by virtue of a commitment issued by the judge of the county court aforesaid; that he is not guilty of the crime of murder as charged in said complaint; that upon the evidence introduced on said preliminary examination before said district judge, together with affidavits of certain other persons which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident, nor the presumption thereof great.

A transcript of the testimony, taken on the preliminary examination and before the district judge, is annexed to and made a part of the petition.

Upon the filing of the petition, August 24, 1927, a rule to show cause issued, returnable on the 27th day of August, at 10 o’clock a. m., in the court room of this court, at which time a hearing was had and the cause submitted upon the evidence and argument of counsel.

The settled rule of this court is that upon an application for bail by writ of habeas corpus after commitment for a capital offense by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution; and, if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Bean, 17 Okla. Cr. 576, 190 P. 1091; Ex parte Butler, 15 Okla. Cr. 111, 175 P. 132; In re Kerriel, 12 Okla. Cr. 386, 157 P. 369; Ex parte Sipe, 22 Okla. Cr. 303, 210 P. 1039.

Upon the record before us and without entering into a discussion of the facts, we deem it sufficient to say that, in our opinion, petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied and bail refused.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOE HEWETT v. STATE.
    No. A-5490.
    Opinion Filed Sept. 9, 1927.
    (259 Pac. 144.)
    E. C. Patton, Wright & Gill, and An^il H. Japp, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of making a false entry in the records of a bank and was sentenced to serve a term of 5 years in the state penitentiary.

The amended information charges that the defendant made a false entry in the individual ledger of the Mustang State Bank, of which he was a cashier and managing officer, by entering thereon a deposit of $1,-500 to his credit, with the intent to defraud the bank. The prosecution is based on section 3, c. 135, Session Laws 1923.

Numerous errors are argued in the brief of defendant, several of which will be briefly referred to. It is first argued that the statute upon which the prosecution is predicated is unconstitutional. This contention was decided- adversely to defendant in the case of Hewett v. State, 36 Okla. Cr. 157, 252 P. 1109.

Complaint is next made that the court erred in overruling defendant’s application for a change of venue. This contention is not assigned as error in the motion for a new trial and is not now available.

It is also urged that the court should have sustained defendant’s challenge to the jury panel. The record does not disclose that the challenge was ever called to the attention of the trial court or any ruling had. The voir dire examination of the jurors is not included in the record.

It is also argued that the court erred in his instruction to the jury Informing them the punishment to be assessed, and that the verdict of the jury is invalid in failing to assess a fine in addition to imprisonment. It is defendant’s theory that section 3, c. 135, Session Laws 1923, is unconstitutional, and that the law covering the offense charged is section 13, art. 1, c. 6, Session Laws 1907-08. Since we hold that the prosecution is under section 3, c. 135, supra, this contention falls.

It is argued, at some length that the evidence is insufficient; that there is no positive testimony that defendant made the entry charged in the information. The evidence discloses, however, that defendant made the deposit slip, the entry or posting of which in the individual ledger constituted the false entry. The evidence is not clear and conclusive that defendant made the entry in the individual ledger, but it is clear that he either made the entry or it was made with his knowledge and under his direction. In either event, he would he a principal.

The state relied on the testimony of Claud Forster, who was assistant cashier of the bank at the time. He testified in reference to the entry, and admitted that the entry might have been made by himself, as follows:

«* * * q What became of the bank record? A. What became of it?
“Q. Yes. A. They were burned.
“Q. Well, were they all burned? A. No, sir, there were some that weren’t burned.
“Q. Now, do you know how that $1,500 got on the individual ledger to the credit of Joe Hewett? A. Yes.
“Q. How did it get there? A. It was put on there.
“Q. Who put it there? A. I am pretty sure he did.
“Q. Did you do it? A. I don’t think I did. I would not be positive. He and I were there when it was we were talking about it. * * *
“Q. What were you doing when you called his attention to the deposit slip? A. I was posting the individual ledger.
“Q. Did you go on posting after you found that item? A. I called Mr. Hewett's attention to it.
“Q. Then, what did you do? A. Well, we talked about it, and he told me that he had a — he was foreclosing a farm out at Western Oklahoma. * * *
“Q. And after you got to “H” to this particular deposit slip, you called that to Mr. Hewett’s attention? A. Yes.
“Q. That was on what date? A. Well, I couldn’t say.
“Q. Did you go on posting the individual ledger sheets? A. Yes; I finished posting. I don’t know whether I finished posting that particular book or not, but I generally always did.
“Q. It would be the natural thing for you to do after you had talked to him about it, and it was verified, as he said it was? A. H:e talked about it, and he says, T will show you about it,’ and if I rememoer right, he put it on the book himself.
“Q. You testified on your direct examination you didn’t make that entry on the individual ledger sheet, didn’t you? A. No, sir.
“Q. What do you say about it now? A. I say that I don’t know whether I made it or whether he made *K sfí
“Q. You did enter this $1,500 item on the individual ledger sheet? A. No, sir; I won’t say I did.
“Q. You won’t say you didn’t either, will you? A. Well, I don’t know. I think Mr. Hewett put it on the sheet.
“Q. Don’t you have any definite recollection — you seem to remember so well — didn’t you go to him and inquire about it, and don’t you have any recollection about what happened then? A. I remember he told me how he would put it back, and he would put it in right away.
“Q. Don’t you remember what he did and what you did, after that? A. I can’t remember as to who put it on the book. * * *
“Q. If he was posting the general ledger, he didn’t come up and take charge of that posting machine and make this entry on the individual ledger did he? A. Well, I couldn’t say. I rather think he did.
“Q. You rather think he did, then what were you doing while he was doing that, if you please? A. I was there.
“Q. You were there? A. Yes. * * *
“Q. If it was your custom, do you know whether or not you entered the item of $1,500? A. No; I couldn’t say, because we had a discussion there about it. * * *”

Defendant requested the court to instruct the jury on the law of accomplice, submitting an instruction substantially correct. The court did not instruct on this point. A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Section 2701, Comp. Stat. 1921'. This court has on numerous occasions defined an accomplice as one culpably implicated in the commission of the crime of which the defendant is accused, or one who knowingly and voluntarily co-operates, aids, abets, or assists in the commission of the crime. McKinney v. State, 20 Okla. Cr. 134, 201 P. 673'; Logan v. State, 23 Okla. Cr. 316, 214 P. 944.

The conviction rests on the testimony of Forster, with various corroborating circumstances which sufficiently tend to connect defendant with the commission of the offense. There is not sufficient positive testimony that defendant made the false entry charged in the information. No witness positively testified that he did. Defendant denies that he made the entry. The reasonable inference from the testimony of Forster is that he posted the deposit slip on the individual ledger after consulting and advising wiffch defendant. Whe(re the facts are undisputed or admitted, the question whether or not the witness is an accomplice is generally one of law for the court, but where the evidence is conflicting as to whether or not the witness participated in the commission of the offense, whether or not the witness is an accomplice is a question of fact to be submitted to the jury under proper instructions. McKinney v. State, supra; Moore v. State, 14 Okla. Cr. 292, 170 P. 519; Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A). 1916 F. 1251; Joliffee v. State, 21 Okla. Cr. 278, 207 P. 454.

Where the state relies upon the testimony of an accomplice to secure a conviction, the trial court, if requested, must instruct the jury the substance of section 2701, Comp. Stat. 1921, that they cannot find the defendant guilty upon the evidence of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commision of the offense, and that the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

In the record before us the defendant was entitled to have submitted to the jury by proper instruction the question whether or not Forster was an accomplice, and the further instruction that if found to be an accomplice a conviction could not be had on his testimony unless corroborated. It is not sufficient to say that Forster was a mere subordinate, acting under his instruction, and that there is no proof of his intent to injure or defraud the bank. He was not on trial; proof of intent on his part was probably incompetent and inadmissible. There is no proof or contention that the witness was under any compulsion, and, if he made the false- entry charged under the circumstances detailed, he is an accomplice and the rule relating to the testimony of an accomplice applies.

The case is reversed and remanded.

DOYLE, P. J., concurring.

DAVENPORT, !J., absent, not participating.