text:
    WILLIAM HIX v. STATE.
    No. A-4656.
    Opinion Filed Jan. 10, 1925.
    (232 Pac. 123.)
    (Syllabus.)
    1. Evidence — Conditions Which Render Confession Inadmissible. Primarily there are two facts which render a confession inadmissible as evidence, first, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination ; and,second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial unworthiness.

      %. Same — Confession Prima Facie Admissible. Prima facie any confession is admissible in evidence, and where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.
    3. Same — Admissibility of Confession Question for Court and Discretionary. The admissibility of a confession, where it is challenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made: and the court is vested with a large discretion in determining the matter.
    4. Trial — General Verdict of Guilty Held Equivalent to Finding Comfessionf Voluntarily Made. Where the evidence asi to the nature of the confession, whether voluntary or not, is heard in the presence of the jury without objection, and the trial court submits to the jury the question of whether or not the confession is voluntarily given, and a general verdict of guilty is returned, it is equivalent to a finding by the jury that the confession was voluntarily made.
    5. Appeal and Error — Trial—Admissibility of Confession Question of Law for Court — Submission of Character of Confession to Jury Held Favorable to Defendant. Where the evidence on the part of the state shows the confession to have been voluntary, and there is no evidence on behalf of the defendant to show that the confession was involuntarily given, the question of the admissibility of such confession was one of law for the court, and the submission of such question to the jury under such circumstances was favorable to the defendant.

      6. Record Free from .Prejudicial Error. Record examined, and held to be free from prejudicial error.
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    William Hix was convicted of grand larceny and sentenced to serve a term of one year in the state penitentiary, and he appeals.
    Affirmed.
    Tracy & Minton, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

By judgment of the district court of Beckham county rendered on the 21sit say of October, 1922, the plaintiff in error, William Hix, was convicted of the crime of grand larceny and sentenced to serve a term in the state penitentiary for a period of one year. From such judgment he has appealed to this court. The information charged the larceny of one Dixie magneto, with impulse starter, from one T. J. McAlpin on or about the 1st day of July, 1921. It is not necessary to set out in detail a statement of the evidence adduced by the state. It is sufficient to state that such evidence, if believed, is amply sufficient to sustain the verdict and judgment.

After the arrest of plaintiff in error, and at the time that he was in the custody of the sheriff in the jail of Beck-ham county, he made an oral confession of guilt to a deputy sheriff, and in this connection it is contended that the evidence of such alleged confession was improperly admitted, in that the same was given involuntarily because of certain inducements offered the plaintiff in error to make the same. The plaintiff in error did not testify as a witness in the case either on the merits or on the question of the voluntary or Involuntary nature of the confession. The only evidence, therefore, on the question of whether this alleged confession was voluntarily given or not, is the testimony of the deputy sheriff. We quote from his testimony as follows:

“Q. Did you bring him to Sayre? A. I did.
“Q. Talk to him at Sayre any? A. Yes; when I started to lock him up he wanted me to help him make bond. I told him the best thing he could do was to come clean if he got it. He taken me around the cage and said, T am going to come clean with you’; he said, T got that myself.’
“Q. Where did he say he got it ? A. He said he got it off the tractor.
“Q. What did you say to him then? A. I told him he could make a statement to you.
“Q. Did he do so? A. Yes, sir.
“Q. In your presence? A. Yes, sir.
“Q. Was it committed to writing? A. It was.
“Q. Did you sign that statement as a witness? A. I did.
“Q. If you saw that statement would you recognize it? A. Yes, sir.
“Q. I will ask you to examine this and see if that is the statement? A. It is.
“Mr. Speed: At this time the state would like to offer it in evidence.
“Mr. Minton: Just wait. We would like to ask some questions.
“The Court: Go ahead.
“Questions by Mr. Minton: Q. Mr. Marsh, where were you at the time that it was first mentioned to you about this magneto? A. Where was I at?
“Q. Yes; where did Mr. Hix first mention about coming clean about this magneto? A. There in the jail.
“Q. You already had him in jail? A. Already had in there.
“Q. I will ask you if you advised him at that time of his rights of having an attorney before you talked with him about it?
“Mr. Speed: Object to that.
“The Court: Objection sustained. That is not the test. The test is whether it was freely and voluntarily made.
“Q. I will ask you if it isn’t a fact that Mr. William Hix asked you if you couldn’t get him out. A. I couldn’t say.
“Q. You don’t deny that he asked that?
“Mr. Speed: Objected to as incompetent, irrelevant,, and immaterial.
“The Court: Overruled. Let him answer. A. He asked me to help him.
“Q. What did you tell him? A. The best I remember, I told him the best thing he could do was to come clean; if he got it he just as well own up to it.
“Q. What else did you tell him in connection with that? A. I couldn’t say just what else I told him.
“Q. Mr. Marsh, isn’t it a fact that you told him you could get him out of it if he would comé clean? A. No, sir.
“Q. And that it was the best thing for him to just acknowledge it? A. I told him it was best for him to acknowledge it if he got it.
“Q. I will ask you if you didn’t tell him you could get him out and would get him out if he would acknowledge it? A. No, sir.
“Q. I will ask you if he didn’t say to you at that time he never got it but T will acknowledge it to get out of it’; and you said, ‘If you will do it you can go back home’? A. No, sir.
“Q. No such conversation occurred? A. No, sir.
“Q. I will ask you if you said it would be lighter on him if he acknowledged? A. I told him possibly he could get out of it easier if he acknowledged to it if he got it.
“Questions by the Court: Q. Was any inducement of any kind oifered to the defendant? A. None that I know of.
“Q. What did the county attorney say to him, if anything? A. I couldn’t say.
“Q. Did you say anything to the county attorney when you took him up there? A. I told him he wanted to make a statement.
“Q. Did the county attorney say anything to him then-A. I couldn’t say. I suppose he did. I don’t remember what it was.
“Q. You don’t have any recollection of what it was? A. No, sir.
“Q. Did anybody say anything to him in your presence, or in the presence of the county attorney, with reference to what would happen to him if he didn’t make that statement? A. Not that I know of.
“Q. But you told him down in the jail it would be lighter on him if he confessed it? A. I told him if he was guilty of it, I believed it would be best for him to acknowledge it.
“Q. Do you remember the exact words you used? A. No; something to that effect.
“Q. You never told him you would see to it he got out of it? A. No, I told him I would help him the best I could.
“Q. You mean help him out of jail? A. No, I suppose he meant for me to help him get bond.
“Q. You didn’t tell him you would help him get out of trouble? A. No, sir; not a 'bit of it.
“Q. The conversation was in regard to helping him get bond? A. I suppose that was what he had reference to because I knowed nothing about the other.
“Q. Did he ask you what to do about the matter when you told him you thought it would be best to tell the truth, and if he was guilty to confess it? A. I couldn’t say.
“Q. When he took you around behind the cage and told you he was going to come clean, had you said anything to him back there? A. No, sir; I was standing in the door fixing to leave the jail.
“Q. The only talk you had with him was prior to that time? A. Yes, sir.

Cross-examination:

“Questions by Mr. Minton: Q. But it is a fact that you told him that if he would just make a confession it would be lighter on him? A. I told him if he was guilty of it, I believed he would get out of it lighter, something to that effect.
“Mr. Minton: We ask that all reference to this statement or confession be stricken because it was induced by promise from a person he considered having authority.
“The Court: Overruled. I will let the witness’ statement in but as to the statement made before the county attorney, there has been no proof as to whether that was voluntarily made or not.
“Mr. Speed: At this time the state offers it in evidence.
“The Court: There has been no proof as to whether that statement was voluntarily made or not. (Objection sustained at this time. Witness excused.)”

In Berry et al. v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A. (N. S.) 849, this court held:

“Primarily there are two facts which render a confession inadmissible as evidence; first, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness.
“Prima facie any confession is admissible in evidence; and where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.
“The admissibility of a confession, where it is chai-lenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion m determining the matter.”

See, also, Mays v. State, 19 Okla. Cr. 102, 197 P. 1064.

The burden is upon the plaintiff in error to show either that the confession was obtained by duress or compulsion, or else that it was made under promise of hope or by reason of fear, in order to create a probability of its testimonial untrustworthiness. Hembree v. State, 15 Okla. Cr. 424, 177 P. 385; Berry et al. v. State, supra.

There is no conflict in the evidence in this case as to whether or not the confession of the plaintiff in error was voluntary. All the evidence before the court shows that the confession was voluntarily made without any promise of hope of reward to obtain the same. The plaintiff in error did not even take the witness stand to refute or contradict the statements made as to the voluntary nature of the confession by the deputy sheriff who heard it.

The trial court gave the following instruction:

“The state has introduced certain statements claimed to have been made by the defendant after his arrest and while he was' in custody charged with the offense for which he is being tried and which statements are relied on in part to establish the defendant’s guilt of the charge against him, and the court instructs you that confessions made by one charged with an offense must be carefully scrutinized and received with caution, yet when freely, deliberately, and voluntarily made, such confessions and statements are to be considered as evidence for or against the person making the same just as any other evidence and given sqch weight as the jury deem the same entitled to have; but if a confession or statement made by one in custody under circumstances showing that he was induced to make the same by a promise of aid, or in any other way, such statement or confession was so induced as to show that it wras not freely and voluntarily made, then the same cannot be considered as evidence against the person so making such statement and in this case if you should find that statements made by the defendant while in custody were not freely and voluntarily made, then you must disregard such statements and not give the same any weight in arriving at your verdict in the case.”

It was the province of the jury to say, under such instruction, whether or not the confession was voluntary and upon the evidence presented in this case we are of the opinion that the jury would not have been justified in reaching any other conclusion than that the confession was voluntarily made.

The other assignments of error, to wit, that there is no sufficient proof of the value of the property, and that the trial court erred in admitting in evidence the property alleged to have been stolen without the same having been properly identified, are wholly without merit. All the testimony in the case is to the effect that the property stolen was of the value of $65, and exhibits admitted, we think, were sufficiently identified to be the property alleged to have been stolen and found in the defendant’s possession.

Finding no prejudicial error in the record, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    In re OPINION OF THE JUDGES. (In re JOHNNIE WASHINGTON)
    No. A-5390.
    Opinion Filed Jan. 10, 1925.
    (232 Pac. 121.)
   Opinion of the judges of the Criminal Court of Appeals in response to a request of the Governor relative to the conviction of Johnnie Washington of the crime of murder.

Hon. M. E. Trapp, Governor of the State of Oklahoma — Sir: In response to your official communication of December 31, 1924, addressed to this court, asking for an opinion as provided in section 2786, Compiled Statutes, 1921, in the matter of the conviction of Johnnie Washington of the crime of murder in the district court of Jackson county on the 12th day of December, 1924, by judgment of said court sentenced to be put to death by electrocution on the 19th day of February, 1925, within the walls of the state penitentiary at McAlester, we hereby submit the following opinion of the judges:

BESSEY, J.

The record submitted by you is what is known under our practice as a case-made, a complete record of each successive action of the trial court at the trial, including the testimony taken. From this it appears that Johnnie Washington, the defendant in the trial court, has served written notice of his intention to appeal from the judgment of the lower court to this court, which under the Constitution and laws of this state he may do at any time within six months from December 12, 1924, and that steps have been taken to perfect the appeal.

You are therefore advised that if the appeal is not lodged in this court before February 19, 1925, in order to accord the accused his statutory right to appeal within six months, the execution of the sentence of death should be postponed to some date after June 12, 1925.

If, in the meantime, the appeal is perfected and filed in this court, that will automatically give the accused the right to a further suspension of the execution of sentence until the merits of the appeal are finally determined.

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


author: DOYLE, J.

text:
    A. L. EMERY v. STATE.
    No. A-3864.
    Opinion Filed Jan. 15, 1925.
    (232 Pac. 128.)
    (Syllabus.)
    1. Contempt — -“Contempt of Court” Defined. “Contempt of court” signifies, not only a willful disregard or disobedience of its orders, but such, conduct as tends to bring the authority of the court and the administration of law into disrepute, or in some other manner to impede the due administration of justice.
    2. Same — Constitution and Statutes Controlling. Contempts of court in this state are governed by constitutional and statutory provisions, and not by common-law rate's.
    3. Same — -“Indirect Contempt” Defined. An “indirect contempt” of court consists of an act having a tendency to obstruct and embarrass or prevent the due administration of justice, done at a distance, and not “during the session of the court and in its immediate view and presence.”
    4. Contempt — Statutory Procedure to Be Followed in Inflicting Punishment. The courts in inflicting punishment for contempt must observe the modes of procedure prescribed .by the statute.
    5. Same — Procedure in Indirect Contempt — Bight to Jury Trial Under Const, art. § 25, and Comp. Stats. 1921, § 1699', a proceeding to punish for indirect contempt must be instituted by affidavit, complaint, or information, setting forth the facts or by a statement of them in writing by the court or judge thereof. The accused must then be notified in writing of the accusation, and have a reasonable time for defense, and upon demand shall have a trial by jury.
    6. Jury — Conviction for Indirect Contempt Void Where Jury Trial Refused. Where a person charged with indirect contempt has demanded a jury trial, and such demand has been refused by the trial court, any order adjudging the accused guilty of contempt, or attempting to commit him to jail, or which imposes any other penalty, is void.
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
    A. L. Emery was found guilty of contempt of court, and he appeals.
    Reversed.

      P. J. Carey, R. E. Simpson, C. B. Kendrick, and A. L. Emery, for appellant.
   DOYLE, J.

In this case appellant was adjudged guilty of contempt in the superior court for the county of Muskogee. He was sentenced to be confined in the county jail for a period of 24 hours, and to pay a fine of $100 and the costs of the proceeding. He has brought the proceeding to this court for a review upon a petition in error and case-made. The errors assigned question the jurisdiction of the court or the judge thereof to render the judgment appealed from.

The record shows that the court caused an attachment to issue against A. L. Emery to answer for contempt committed by him by writing, and mailing to the court “an insulting and threatening letter” in regard to the actions of the court in a cause therein pending.

On appellant being brought before the court, the following proceedings were had:

“By the Court: Mr. Emery, in the case of P. E. Hickman et al. v. Betty Grayson et al., you appeared here last Friday, the 9th, as attorney for Betty Grayson and other defendants to argue that case, and it was argued at some length, after you returned to your home in Okmulgee, and on the 11th you wrote a letter, addressed to myself as judge of this court, and mailed it on the 12th, and it was delivered to me in due course of the mail. The letter reads as follows: (Reads the letter.) Have you anything to say or reason to offer why I should not hold you in contempt of this court for writing and sending that letter? If you have, I will now hear you.
“By Mr. Simpson: If the court please, I represent Mr. Emery. Before any further proceedings are had, I would like to know if there has been any information prepared or complaint filed in this case.
“By the Court: There is not. The court of its own motion issued an attachment for him, and he was brought here under that attachment.”

Counsel for appellant thereupon moved to dismiss the proceeding, on the ground that the court was without jurisdiction, in that if the defendant is in contempt of court, the statement of the court shows, the act having been done out of the presence and outside the jurisdiction of the court, it is therefore an indirect contempt and not a direct contempt of court, and the court is not proceeding in the manner prescribed by law. Which motion was overruled. The court stating that its ruling was supported by the cases of Burke v. Territory, 2 Okla. 499, 37 P. 829, and In re Pryor, 18 Kan. 72, 26 Am. Rep. 747.

Thereupon counsel for appellant demanded a trial by jury, which was overruled.

“By Mr. Emery: May it please the court, your honor asked me a few minutes ago if I had any reason why I should not be held in contempt of this court. I wrote the letter; it was directed to your honor personally; it was the expression of the very warmest terms of friendship; I felt I had been wronged; I did not go around and tell it around; I told it directly to your honor. There was no wrongful intent, nor have I intended to be disrespectful to your hon- or, either in court or out of court. There is no reason why I should be.
“By the Court: Now, Mr. Emery, the writing of that letter in itself is a contempt. I will assume the burden now. At the close of that I will hear you further, if you have anything further to say.”

Thereupon the court called and examined several witnesses, and at the close of the testimony pronounced the judgment and sentence appealed from.

It is manifest from the record in this case showing that no affidavit, complaint, or other accusation in writing was ever filed or served upon appellant, that the court was without jurisdiction to proceed to and render the judgment appealed from.

Without entering into a discussion of the reasons underlying the power of a court to enforce due respect for its authority, and to protect itself against any unfounded and scurrilous accusation made against it which tends to impede, embarrass, or obstruct the due administration of justice, we will only say that, while the power of a court to punish for contempt, though undoubted, is in its nature arbitrary, its exercise is not to be upheld except under the circumstances and in the manner prescribed by law.

It is essential to the validity of proceeding's in contempt, subjecting a party to a fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized. Cress v. State, 14 Okla. Cr. 521, 173 P. 854.

Generally speaking, contempts are classified as direct or indirect, and as criminal or civil. A direct contempt being such as is offered in the presence of the court while sitting judicially, and an indirect or, as it is sometimes called, a constructive contempt being such as tends by its operation, though not committed in court, to obstruct and embarrass or prevent the due administration of justice. Contempts of court in this state are governed by constitutional provisions and by the statutes, and not by common-law rules.

Our state Constitution provides:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made'or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.” Bill of Rights. § 25.

To effectuate this provision the Legislature enacted the following provisions:

“Contempts of court shall he divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolvent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfull issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court.” Section 1697, Comp. Stats. 1921.
“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.” Section 1698.
“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.” Section 1699.
“Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court.” Section 1700.

In cases of direct contempt under the constitutional and statutory provisions, the contemnor being present in court, neither a formal charge against him in writing nor process is required. Only an opportunity to be heard is given. The court in its discretion renders judgment imposing such punishment as it may deem proper within the limits prescribed by the statute. No record is made other than the judgment. In this, as the statute provides, the substance of the offense shall be set forth and made a matter of record in the court.

A proceeding for an indirect contempt, as provided in section 1699, must be instituted by affidavit, complaint, or information, setting forth the facts constituting the alleged contempt, or by a statement of them in writing by the court, judge thereof, or other judicial officer. The alleged contemnor must, then be notified in writing of the accusation and have a reasonable time for defense and upon demand shall have a trial by jury, which must be conducted with all the incidents of an ordinary criminal case. If the contemnor is found guilty, the court pronounces judgment as in ordinary criminal cases, sentencing him to pay a fine or to undergo imprisonment or both, at the discretion of the court.

The contempt outlined in the judgment in this case is plainly an indirect contempt under the forgoing statutory definitions, and the act upon which the contempt proceedings are predicated was not made to appear by any accusation in writing as required by the statute, and on due accusation he was entitled by the statute to notice of the accusation and reasonable time to make his defense, and upon demand he was entitled to have a trial by jury. The court therefore obtained no jurisdiction to either order Mr. Emery to show cause why an attachment should not issue against him, or to cause him to be arrested for the alleged misconduct.

In a proceeding for indirect contempt, the accusation, the process, the answer of the contemnor, and the evidence, when properly preserved, together with the judgment, constitute the record. In Blanchard v. Bryan, 83 Okla. 83, 200 P. 444, it was held that:

. “When a person is charged with an indirect contempt, and has demanded a jury trial, and such demand has been refused by the trial court, any order made by such trial court adjudging the accused guilty of contempt, or attempting to commit him to jail, or which imposes any other penalty, is void.”

The principle that “no person shall be deprived of life, liberty, or property without due process of law,” is older than written constitutions. The phrase, “due process of law,” as used in the Bill of Rights, § 7, is synonymous with the phrase, “law of the land,” as found in Magna Carta. A citizen may not be imprisoned, or subjected to the payment of a fine, except in the mode pointed out by the law. Sullivan v. State, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

In a proceeding for contempt of court, if the cóntem-nor is found guilty, the punishment imposed is a sentence in a criminal case. Such adjudication is a conviction, and the commitment in consequence thereof is in execution of sentence for a criminal offense. Flathers v. State, 7 Okla. Cr. 668, 125 P. 902; Burnett v. State, 8 Okla. Cr. 639, 129 P. 1110, 47 L. R. A. (N. S.) 1175. It follows that proceedings for the punishment of contempt should generally conform as nearly as possible to proceedings in criminal cases.

Without expressing any opinion as to whether or not Mr. Emery was guilty of professional misconduct in sending to Judge Nelson the letter in question, we will take this occasion to say that an attorney is under special obligations to be considerate and respectful in his conduct and communications to a court or judge thereof. He is an officer of the court, and it is therefore his duty to uphold and maintain its dignity. Certain privileges attach to him by reason of such official position; as such he enjoys the high and exclusive privilege of representing litigants who seek to have their rights determined. By virtue of this privilege, he may in the trial of cases use language concerning parties, and witnesses, and all matters and things in issue which elsewhere and under other circumstances would be libelous. But with this privilege goes the corresponding obligation of constant courtesy and due respect toward the court in which the proceedings are pending. A failure to extend this courtesy and respectful treatment is a failure of duty, and it may be so gross a dereliction as to warrant the exercise of the power to punish for contempt. When a case is disposed of and the decision announced, such decision becomes public property, and as such subject to public scrutiny and investigation. In such cases the press, the public, or any individual thereof, attorney or otherwise, has the undoubted right to comment upon the decision and criticize and censure the court as they see fit, being responsible for the abuse of that right.

It has been well said that,- above all others, the members of the bar have the best opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench.

We adopt as our conclusion the words of Justice Brewer in the case of In re Pryor, supra:

“After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. * * *
“We remark again, that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that, in every case where a judge decides for one party, he decides against another; and oftimes both parties are beforehand equally confident and sanguine. The disappointment, therefore, is great, and it is not in human nature that there should be other than bitter feeling, which often reaches to the judge as the cause of the supposed wrong. * * * A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence. On the other hand, a little thing which is properly unnoticed once, may by its repetition require notice and punishment. * * * So an attorney sometimes, thinking it a mark of independence, may become wont to use contemptuous, angry, or insulting expressions at every adverse ruling, until it becomes the court’s, clear duty to check the habit by the severe lesson of a punishment for contempt.”

For the reasons stated, we are clearly of opinion that the lower court was proceeding without jurisdiction. It follows that the judgment must be reversed.

The superior court of Muskogee county having been abolished, the cause is dismissed, and the appeal bond exonerated.

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


author: PER CURIAM.

text:
    WILL OGLESBY v. STATE.
    No. A-5220.
    Opinion Filed Jan. 17, 1925.
    Rehearing Denied Feb. 18, 1925.
    (232 Pac. 1118.)
    Appeal from County Court, Greer County; Jarrett Todd, Judge.
    Will Oglesby was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Appeal dismissed.
    Stansell Whiteside, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Will Oglesby, was convicted on a charge of unlawfully transporting intoxicating liquor, and his punishment fixed at confinement for 30 days in the county jail and a fine of $75. From the judgment rendered on the verdict, March 1, 1924, he appealed by filing in this court on June 21 a petition in error, with case-made. The Attorney General has filed a motion to dismiss the appeal, on the ground and for the reason that no notices of appeal were ever served on the clerk of the court or the prosecuting attorney in this case as .is required by law. An examination of the record discloses: that the motion to dismiss is well taken. The appeal herein is therefore dismissed.


author: EDWARDS, J.

text:
    JOHN ENGLAND v. STATE.
    No. A-4677.
    Opinion Filed Jan. 17, 1925.
    (231 Pac. 1087.)
    (Syllabus.)
    1.' Evidence — Circumstantial Evidence Held not Sufficient to Sup|port Conviction. In order to sustain a conviction, where the evidence is wholly circumstantial, such circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and, when they are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient to support a conviction.
    2. Appeal and Error — Necessity for Objections Below — Failure to Instruct on Issue of Alibi. Where a defendant is on trial and the evidence raises the defense of an alibi, and the defendant does not request an instruction upon such defense and does not except to the action of the court in not instructing on such point, a conviction will no(( be reversed unless it clearly appears from the record that the defendant was injured thereby.
    Appeal from District Court, Choctaw County; G. M. Barrett, Judge.
    John England was convicted of arson, and he appeals.
    Reversed.
    Warren & Welch, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Only two assignments of error are argued by the appellant: First, that the evidence is insufficient to sustain the verdict of the jury; second, the failure of the court to instruct on the defense of alibi.

The state relies wholly upon circumstantial evidence. The evidence clearly shows that some one set fire to the house in which the plaintiff in error lived as a tenant. The connection of the plaintiff in error with such fire is not evident. The circumstances surrounding it are few. No motive whatever on the part of plaintiff in error is shown for the commission of the offense; nor are we able to infer a motive. There is no question of fire insurance raised. No misunderstanding or difference of any ¡'kind between the plaintiff in error and the owner of the building is suggested.

It is true that ordinarily the jury are the sole triers of the facts, and, even though the evidence is circumstantial and even conflicting, if there is sufficient evidence which, if believed by the jury, would warrant them in returning a verdict of guilty against the defendant, this court will not weigh its sufficiency and set aside the verdict; this rule being based on the reason that the jury had the privilege of seeing and observing the witnesses and determining the weight and credibility of their evidence. Sies v. State, 6 Okla. Cr. 142, 117 P. 504; Brown v. State, 12 Okla. Cr. 343, 156 P. 1150; Broshears v. State, 17 Okla. Cr. 192, 187 P. 254.

After a careful consideration of all the evidence in this case, we think it is not sufficient to sustain the verdict; the most that can be said is that it raises a suspicion against the defendant. We do not deem it necessary to set out the evidence in this opinion.

As to the second assignment of error, the failure of the court to instruct on the defense of alibi, an examination of the record discloses that no request for an instruction on this subject was made by plaintiff in error, and no exception taken to the action of the court in not instructing oh this matter, and it does not clearly appear that such failure to so instruct on the defense of an alibi injured the plaintiff in error, and the error, if any, in such failure is not available to the plaintiff in error. Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707.

Because of the insufficiency of the evidence to sustain the verdict, the judgment is reversed.

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


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    C. M. ELEM v. STATE.
    No. A-4611.
    Opinion Filed Nov. 1, 1924.
    Rehearing Denied Jan. 17, 1925.
    (231 Pac. 1118.)
    Appeal from County Court, Woodward County; H. B. King, Judge.
    C. M. Elem was convicted of a violation of the prohibitory liquor laws, and appeals.
    Affirmed.
    Clyde H¡. Wyand, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

On the 7th day of March, 1922, the county attorney of Woodward county filed an information in the county court of said county, charging this plaintiff in error with the offense of manufacturing whisky. A trial to a jury in January, 1923, resulting in a verdict of guilty of attempting to manufacture whisky, with punishment assessed at a fine of $250 and imprisonment in the county jail for a period of 90 days. Judgment was pronounced on the 25th day of January, 1923, and petition in error and case-made were filed in this court on the 26th day of March, 1923.' The cause was finally submitted on October 7, 1924. The Attorney General has filed a motion to affirm the judgment for failure to diligently prosecute the appeal. No brief has been filed in behalf of plaintiff in error, nor was any appearance made to orally argue the cause at the time the same was submitted. Rule 9 of this court provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” ■ After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    Ex parte A. J. JOHNSON.
    No. A-4224.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 452.)
    Application by A. J. Johnson for writ of habeas corpus.
    Writ allowed.
    Giddings & Giddings, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

In his petition for a writ of habeas corpus the petitioner, A. J. Johnson, states that he is restrained of his liberty and unlawfully imprisoned in Oklahoma City, Okla., by Ben Dancy, sheriff of Oklahoma county. The petitioner claims that his said restraint is illegal and unauthorized for several reasons, among which are: That the offense charged is not an indictable one; that the court had no jurisdiction of the purported offense; and that the petitioner was not, in a legal sense, a fugitive from justice.

Upon a hearing had subsequent to the filing of this petition the testimony of sundry witnesses was heard, from which it appeared that an indictment had been returned against the petitioner in one of the courts of the state of Iowa, growing out of relations of principal and agent of the Randlett Oil Lot Company, U. S. Stone, and this petitioner, and that there was a bona fide controversy existing between the petitioner and the others named concerning commissions earned by the petitioner and money due this oil lot company, arising partly in the state of Oklahoma and partly in the state of Iowa.

Without reciting the details of these transactions, or setting out at length the reasons for the court’s conclusions, this court finds and holds that the petitioner is not a fugitive from justice subject to extradition, and that his restraint by the sheriff of Oklahoma county was unauthorized.

The writ of habeas corpus was granted soon after the hearing on the petition, and the petitioner ordered discharged.


text:
    MATT BRACKIN v. STATE.
    No. A-4736.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 119.)
    (Syllabus.)
    1. Appeal and Error — Sufficiency of Evidence — Scope of Review. Where the sufficiency of the evidence to support a conviction is challenged, this court will examine the record and ascertain if there is sufficient evidence to warrant a conviction, but will not weigh the same.
    2. Trial — Improper for Court to Indicate Opinion on Weight of Testimony or Any Matter of Fact. A, trial court should abstain from any act, comment, or remark which might indicate its opinion as to the credibility of any witness, or the weight of any testimony, or the view of the court on any matter of fact.
    Appeal from District Court, Bryan County; George S. Marsh, Judge.
    Matt Brackin was convicted of murder, and appeals.
    Affirmed.
    W. F. Speakman, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The defendant was charged by information with the crime of murder of one Robert C. Means. The trial resulted in a verdict of guilty, and punishment was assessed at life imprisonment.

"The theory of the state was that the defendant and the deceased, with another man, went from Texas into Oklahoma, traveling in a Buick car bearing a Missouri license •tag. They were seen to pass through McKinney, Tex., and were later seen on the road in Bryan county between the river and Durant and at other places in that county and near Calera in Bryan county, and thereafter the defendant and the other man were seen driving through Durant, and one of them had blood smeared upon him. From Durant the two drove north to the town of Mead, thence north about three and a half miles, at which point the car stalled and was abandoned. The deceased was dragged to the side of the road in some timber, where he was later found, with wounds upon his head, apparently inflicted by means of a hammer.

The evidence of the state was circumstantial, but voluminous in its character, and amply sustains the state’s theory. The defense was an alibi, and, if believed, would be ample to acquit him. The plaintiff in error in his brief at page 44 admits that four witnesses for the state positively identified the plaintiff in error as being in the death car referred to in the evidence, but contends that, as other witnesses equally well situated did not identify defendant, the evidence is insufficient. But this raises only the question of the preponderance of the evidence and not the sufficiency of the evidence to sustain the conviction. It has been repeatedly held by this court that it will not weigh the evidence, where the same is conflicting, to determine where the preponderance is. But, where there is substantial evidence to support the verdict of the jury, the credibility and weight are for the jury, and will not be disturbed by this court. McLaughlin v. State, 18 Okla. Cr. 137, 193 P. 1010; Walker v. State, 20 Okla. Cr. 316, 202 P. 799; Sherman v. State, 20 Okla. Cr. 306, 202 P. 521; Ravenscraft v. State, 23 Okla. Cr. 361, 214 P. 946.

It is also contended that the conduct of the trial court in interrogating witnesses and in the making of comments on the admissibility of evidence constitutes prejudicial error. We have examined the record with particularity upon this assignment of error, and reiterate here, what has heretofore been the uniform holding of this court, that trial courts should be careful and guarded in their conduct, and avoid allowing the jurors to discover the opinion of the judge as to the weight of any evidence, or the credibility of any witness .or of any matter of fact in the case. In fact, a trial court should abstain from any extended examination of a witness, and in ruling on the admissibility of any evidence should abstain from any comments. Every action should be characterized by absolute fairness and impartiality. Hicks v. United States, 2 Okla. Cr. 626, 103 P. 873; Cochran v. State, 4 Okla. Cr. 390, 111 P. 987.

In this case, while the court did examine one witness at some length, yet such questions were on an immaterial matter, and were not in any sense prejudicial to the defendant. We believe there is no merit in this assignment.

A careful examination of the briefs and record in this case convinces us that the defendant was ably represented and had a fair trial; that the verdict of the jury is abundantly sustained by the evidence, and the conviction should be and is hereby affirmed.

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


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    WM. BOYLES v. STATE.
    No. A- 4591.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 453.)
    (Syllabus.)
    Intoxicating Liquors — Manufacturing Liquor — Insufficient Evidence. In a prosecution for manufacturing intoxicating liquor, evidence reviewed, and beld insufficient to sustain conviction.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Wm. Boyles was convicted of unlawfully manufacturing whisky, and he appeals.
    Reversed.

      J. F. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted on an information charging that Wm. Boyles did, in Cotton county, on the 11th day of July, 1922, “then and there being, then and there, willfully and unlawfully manufacture spirituous liquor, to wit, corn whisky,” and his punishment fixed at a fine of $250 and confinement for 90 days in the county jail. He appeals from the judgment rendered on the verdict, and alleges that the evidence was insufficient to ^sustain the verdict and judgment.

Frank Boles, undersheriff, testified that with others he went to the home of the defendant, and they searched the place and found a barrel of mash sitting at the west end of the house; that that was all they found there. He was then asked by the county attorney:

“Q. Are you reasonably sure and certain this was mash? A. Well I don’t know, but it is my judgment that it was mash.”

C. 0. Hooper, deputy sheriff, testified that he was with the officers when they searched the defendant’s premises five or six miles west of Walters; that they found a barrel of mash, that is what he would call it, on the west side of the house; and that was all they found. The state rested and the defendant moved for an acquittal in the form of a demurrer to the evidence, for the reason that the same was insufficient to warrant a verdict of guilty, which was overruled and exceptions allowed.

G. C. Crisp testified that he was in the grain business at Walters and some time in June he sold the defendant some spoiled meal. Two near neighbors testified that during the months of June and July they visited the defendant’s place several times and noticed a water barrel, between the defendant’s house and the hog pen, about half full of slop.

As a witness in his own behalf the defendant testified that the officers came to his place, saying they had a search warrant, and he told them to help themselves; that he had a slop barrel near the house; that there was about a half a gallon of meal in the bottom, and a few days before he noticed it was getting dry and he poured water in to keep the barrel from going to staves; that he did not put it there to make whisky or any kind of intoxicating liquor; that he could not make whisky if he wanted to.

It is made the duty of the court, when it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit. Comp. Stats. 1921, § 2713.

Obviously the verdict in this case is not supported by the evidence, and it was the duty of the trial court, of its own accord, without its attention being especially called thereto, to have directed a verdict of acquittal.

Because the verdict is contrary to the evidence and wholly insufficient to sustain the verdict, the judgment is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    IRA DAVIDSON v. STATE.
    No. A-4629.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 120.)
    (Syllabus.)
    Compounding Felony — Commission of Preceding Crime Essential to Offense-Necessary to Allege and Prove. The actual commission of a preceding crime is essential to the offense of compounding same; and in order to convict it is necessary to allege and prove tbe antecedent crime.

      . Appeal from Superior Court, Pottawatomie County; L. G. Pitman, Judge.
    Ira Davidson was convicted of compounding crime, and sentenced to serve a term of six months’ imprisonment in the state penitentiary, and appeals.
    Reversed.
    Abernathy & Howell and Lydick & Arrington, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This action was commenced in the superior court of Pottawatomie county by filing an information charging the plaintiff in error with the crime of compounding a felony under section 1674 of the Compiled Laws of 1921, the charging part of which information is as follows :

“The said Ira Davidson, then and there being a public official, to wit, a qualified and acting constable within and for Pottawatomie county, Okla., and having knowledge of the commission of a public offense theretofore having been committed on or about the 20th day of October, 1920, by one Ben Smith, wherein the said Ben Smith unlawfully, fraudulently, and feloniously obtained money, to wit, $16, from one J. M. Way by means and use of a bogus check, said public offense then and there constituting a felony, for which said offense the said Ben Smith was then and there liable for prosecution under the criminal laws of the state of Oklahoma; that the said Ira Davidson then and there well knew that the said offense had theretofore been-committed and was then and there unprosecuted; that the said Ira Davidson did then and there unlawfully, willfully, intentionally, and feloniously take and receive money and rewards, and receive promises of rewards in the amount of $16, from one Mrs. D. A. Smith, and J. M. Way upon an agreement and understanding by and between him, the said Ira Davidson, Mrs. D. A. Smith, and J. M. Way that he, the said Ira Davidson, would conceal the offense from the county attorney, and abstain from the prosecution of the said Ben Smith, and would withhold evidence of the said offense from the county attorney in consideration thereof, contrary,” etc.

The section of the statute on which the prosecution is based reads:

' “Any person who, having knowledge of the actual commission of a crime or violation of statute, takes any money or property of another, or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or'conceal such crime or violation of statute, or to abstain from any prosecution therefor, or to withhold any evidence thereof, is punishable as follows. * * *”

At the conclusion of the evidence the plaintiff in error requested this instruction:

“You are further instructed that you must find beyond a reasonable doubt that Ben Smith did on or about the 18th day of October, 1920, give to one J. M. Way a certain false or bogus check with the intent to cheat and defraud the said J. 51. Way and did obtain or attempt to obtáin from the said J. M. Way money or property or valuable thing, and, unless you so find, your verdict must be for the defendant,”

—which request was by the court refused and exceptions allowed. The refusal was duly assigned as error in the motion for new trial and in the petition in error. The proposition of law contained in the requested instruction was not covered by any other charge of the court.

It seems to us to be self-evident that before any person can have knowledge of the actual commission of a crime, or can compound the same as defined by the statute, above quoted, that it is essential that there must have been committed a crime to compound, and in order to convict one charged with such offense it is in like manner necessary to prove the antecedent crime. State v. Leeds, 68 N. J. Law, 210, 52 A. 288; Hays v. State, 142 Ga. 592, 88 S. E. 236, 7 L. R. A. (N. S.) note at page 709; 8 Cyc. 495.

This court has not heretofore passed on this question, but, where it was sought to charge a defendant with the crime of aiding a felon, held it necessary to allege the antecedent crime. Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525.

By analogy that case is in point here, and it would follow that, if it was necessary to allege the antecedent crime, it would likewise be necessary to prove the same.

Other points are raised, but it is not necessary to pass on them here. The refusal of the trial court to give an instruction embodying, in substance, the request of the plaintiff in error constituted reversible error. The judgment of the trial court is therefore reversed.

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


text:
    ORBY DAY v. STATE.
    No. A-4574.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 122.)
    (Syllabus.)
    1. (Rape — Corroboration of Prosecutrix, When not Essential. In a ease of statutory rape, where the evidence of the prosecutrix is not inherently improbable or contradictory, it is not essential to a conviction that there be corroboration.

      2. Rape — Age of Prosecutrix as Question of Fact for Jury. In a ease of statutory rape, the age of the prosecutrix is a question of fact for the jury, to be determined by them from all the evidence in the ease, including the appearance of the prosecutrix, • if a witness.
    3. Evidence — Age of Prosecutrix Provable by her Testimony. Age may be proven by the testimony of the person whose age is in question, although knowledge of that fact is derived from statements of parents or from family reputation.
    Appeal from District Court, Lincoln County; Hal Johnson, Judge.

      Orby Day was convicted of rape, and he appeals.
    Affirmed.
    James A. Embry, for plaintiff in error.
    George F. Short, Atty, Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This appeal is from a judgment rendered upon the verdict of a jury finding the defendant Orby Day guilty of rape in the second degree, and assessing his punishment at one year in the penitentiary.

It is argued by the plaintiff in error, at some length, that the essential elements of the offense charged in the information are proven only by the testimony of the prose-cutrix, and that the same is not convincing, and the case should be reversed for insufficiency of evidence. We have examined carefully the evidence, and, while it is true that the essential elements of the crime are testified to only by the prosecuting witness, yet her testimony is clear cut, no material contradiction and nothing making it unreasonable or inherently improbable, and under a long line of holdings of this court, the evidence is sufficient to sustain the verdict. Reeves v. Territory, 2 Okla. Cr. 352, 101 P. 1039; Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Hast v. Territory, 5 Okla. Cr. 162, 114 P. 261; Wines v. State, 7 Okla. Cr. 451, 124 P. 466; Morris v. State, 9 Okla. Cr. 241, 134 P. 731; Allen v. State, 10 Okla. Cr. 55, 134 P. 91.

It is also argued that the only evidence fixing the age of the prosecuting witness is her own evidence, which plaintiff in error contends is hearsay. But it has been held by the Supreme Court of this state, Stevens v. Elliott et al., 30 Okla. 41, 118 P. 407, that it is competent for a witness to testify as to his or her own age, and such evidence seems to be generally admissible. Encyclopedia of Evidence, vol. 1, 735, note 15. And such evidence is distinguished and not classed as hearsay in the legal sense. Pearce v. Kyzer, 16 Lea (Tenn.) 521,, 57 Am. Rep. 240.

The judgment of the lower court is therefore affirmed.

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


text:
    E. A. PHIPPS v. STATE.
    No. A-4627.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 125.)
    (Syllabus.)
    Trial — ¡Invading Province of Jury — Prejudicial Instruction as tq Effect of Possession of Liquors. Under section 6999, Comp. Stats. 1921, declaring that the keeping in excess of a certain amount of intoxicating liquors “shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” it is error to charge:
    “If you should find from the evidence beyond a reasonable doubt that defendant had said whisky in his possession and under his control, then and in that event you should find the defendant guilty.”
    Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant and to establish his guilt beyond a reasonable doubt, when all' the evidence, including the presumptions, is considered, is for the determination of the jury.
    Appeal from County Court, Grady County; J. M. Shelton, Judge.
    E. A. Phipps was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    Bond, Melton & Melton, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

On an information charging that he did have in his possession “one and one-half gallons of whisky with the willful and unlawful intent to sell the same,” E. A. Phipps was convicted, and his punishment fixed at confinement in the county jail for 60 days and a fine of $200. He has appealed from the judgment rendered upon such conviction.

The evidence shows that Mat Sankey, sheriff, and B.' Arthur Wilson, deputy, went to the farm of plaintiff in error, nine miles east of Rush Springs, in Grady county, for the purpose of searching his premises for intoxicating liquors.

The officers found the wife of plaintiff in error at home, and she said that her husband was in Lindsay. They-proceeded to search the premises, and found three half gallon jars of whisky in a box, covered with cotton seed, in the harness room of the barn, and found a little jug of whisky in the heating stove in the house.

As a witness in his own behalf E. A. Phipps testified that about the 14th day of August he left home and visited in West Texas, was gone 8 or 9 days, returning 2 days before the officers appeared at his place; that there were eight in his family, including two boys, one 17 and the other 15 years of age, at home; that he knew nothing about the whisky that was found in the harness room; that the little jar found in the house was whisky that he kept for his wife, who had been “puny” for a year.

Of the various errors assigned it is only necessary to consider the one that the court erred in giving, over defendant’s objection and exception, the following instruction to the jury:

“No. 3. You are further instructed, gentlemen of the jury, that the defendant is charged in the information of having in his possession, and under his control, one and one-half gallons of whisky. If you should find from the evidence, beyond a reasonable doubt, that defendant had said whisky in his possession and under his control, then and in that event you should find the defendant guilty.”

By numerous decisions of this court it is held that, under section 6999, Comp. Stats. 1921, declaring the keeping in excess of a certain amount of intoxicating liquor “shall be ‘prima facie evidence’ of an intention to convey or otherwise dispose of such liquor,” since the statute only means to make such evidence competent and sufficient to establish the unlawful intent, unless rebutted or the contrary proven, yet it does not make it obligatory upon the jury to convict after the presentation of such proof. Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant and to establish his guilt beyond1 a reasonable doubt, when all the evidence, including the presumption, is considered, is for the determination of the jury. Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Butler v. State, 12 Okla. Cr. 530, 159 P. 1090; Foley v. State, 25 Okla. Cr. 112, 219 P. 179.

Under the evidence in this case the instruction objected to almost amounted to directing the jury to find the defendant guilty. This conclusion renders it unnecessary to consider the other questions in the case.

For the reason stated, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. 3.

text:
    TOM MONDELL v. STATE.
    No. A-4634.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 126.)
    (Syllabus.)
    Intoxicating Liquors — Illegal Possession — Evidence Sufficient. The evidence examined, and held sufficient to support the verdict.
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.

      Tom Mondell was convicted of illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    Brown Moore, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. 3.

Tom Mondell, defendant in the trial court, was on December 12, 1922, convicted of having had illegal possession of a large quantity of wine, a portion of which he sold and delivered to Clyde Sherman on December 23, 1921. The punishment was fixed by the jury at a fine of $100 and confinement in the county jail for a period of 60 days. The only errors complained of are that the evidence is insufficient to support the verdict, and that incompetent prejudicial evidence was permitted to go to the jury.

The defendant took the stand, and admitted that he sold or delivered to Sherman, on the date charged, two bottles of wine, thus indicating illegal possession of at least that quantity of intoxicating liquor. There is also evidence tending to show that he offered to sell 15 gallons more. A chemist testified to the alcoholic content of the wine sold. It appears, therefore, that the verdict is supported by the testimony of the defendant himself.

There was some incompetent evidence admitted concerning the reputation of the place, and concerning facts and circumstances having no legal bearing on the issues; but the testimony of the defendant himself was in a sense equivalent to a plea of guilty, thus rendering the admission of this incompetent evidence harmless.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, 33., concur.


author: BESSEY, P. J.

text:
    E. R. WEBER v. STATE.
    No. A-4571.
    Opinion Filed Jan. 17, 1925.
    (232 Pac. 446.)
    (Syllabus.)
    1. Trial — Weight of Testimony and Credibility of Witnesses for Jury. The evidence being conflicting, the weight of the testimony and the credibility of the witnesses were for the jury.
    2. Appeal and Error — Instruction as to Evidential Inferences from Possession of Recently Stolen Property Held Sufficient. An instruction upon the law relative to the evidential inferences to be drawn from the possession of recently Stolen property held sufficient.
    Appeal from District Court, Kay County; J. W. Bird, Judge.
    E. R. Weber was convicted of grand larceny, and lie appeals.
    Affirmed.
    See, also, 18 Okla. Cr. 421, 195 P. 510.
    T. J. Sargent and A. Plack Carr, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

E. R. Weber, plaintiff in error, defendant in the trial court, was by information filed in the district court of Kay county charged with the theft of a Ford automobile from one S. P. Boyce. By verdict of a jury he was found guilty as charged, with his punishment assessed at confinement in the penitentiary for a year and a day. From the judgment in accordance with the verdict he appeals.

There are but two assignments of error seriously urged in the brief: First, that the evidence is insufficient to support the verdict; second, that the court erred in giving instruction numbered 6.

The evidence shows that the Ford car in question had been driven to Blackwell by the son of the owner on the evening of the theft, and that it was taken from the street in Blackwell where it had been parked. About one month later the owner of the car found it in the possession of the defendant in Arkansas City, Kan. There were numerous marks and peculiarities about the car which enabled the owner to identify it beyond a question. When the owner accosted .the defendant, and began to make inquiry as to where the defendant came into possession of the car the defendant told Mr. Boyce that he had purchased it about a year previous to that time from a man named Brown, who was a Ford dealer at Winfield, Kan. The defendant was a jitney driver, and while this conversation was going on two men came up and asked the defendant to drive them to Winfield. The owner of the car followed, and after arriving in Winfield secured the services of a local peace officer, who took the car in charge. The defendant made several conflicting statements at that time as to where and when he got the car, and the whereabouts of the man Brown from whom he claimed to have purchased it.

During the short time intervening between the theft of the car and its discovery in the possession of the defendant several alterations had been made. The number on the engine had been changed, and a new tool box, wind-shield, and horn had been attached, and the wheels had been páinted red.

At the trial the defendant’s defense was that he had purchased the car, in good faith, from two men named Brown and Berkshire at his home about 2 or 3 o’clock in the morning; that he had given to these men $25 in cash and a check for $100. The evidence discloses that a check in that amount had been made by defendant in favor of these two men and payment made thereon through ordinary banking channels.

From the incidents here related, and from other circumstances shown in the record, we hold that the evidence was sufficient to support the verdict. The jury did not believe the explanations made by the defendant, and the evidence being conflicting, the weight thereof and the credibility of the witnesses was for the jury.

The instruction complained of, being instruction No. 6, was as follows:

“The jury is instructed that the possession of stolen property recently after the larceny thereof, when unex- ■ plained, may be sufficient to warrant the jury in inferring the guilt of the party in whose possession it is found. Whether such inference should be drawn is a fact exclusively for the jury.”

At the trial the defense interposed no objection to the above instruction, and proffered no other instruction in lieu thereof. The law relating to the possession of recently stolen property might have been more comprehensively stated, but we hold that the instruction as given is not fundamentally erroneous. If the defendant felt aggrieved at the form in which it was given, he should have suggested another, free from any objectionable features.

So holding, the judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    DAVE SIMPSON v. STATE.
    No. A-4720.
    Opinion Filed Jan. 20, 1925.
    (232 Pac. 455.)
    (Syllabus.)
    1. Appeal and Error — Dismissal—Discretion of Appellate Court Where Appellant Violates Bond by Leaving State. Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause or dismiss the appeal.

      2. Same — Necessity for Appellant’s Location Enabling Court to Enforce Judigment. Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can he made to respond to any judgment or order which may he rendered or entered in the case.
    Appeal from District Court, Comanche County; A, S. Wells, Judge.
    Dave Simpson was convicted of grand larceny, and he appeals.
    Appeal dismissed.
    J. F. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., G. B. Fulton, Asst. Atty. Gen., and Fletcher Riley, Co. Atty., for the State.
   DOYLE, J.

In the information in this case appellant, Dave Simpson, and George C. Castor were charged with the theft of a Ford sedan, the property of W.. R. Slover. Upon his separate trial appellant Dave Simpson was found guilty the jury leaving his punishment to be fixed 'by the court. December 12, 1922, the court rendered judgment, sentencing appellant to imprisonment in the penitentiary for a term of five years. From the judgment an appeal was taken by filing in this court on June 8,1923, a petition in error with case-made.

December 17, 1924, the Attorney General filed a motion to dismiss the appeal on thi ground that shortly after the filing of the appeal bond in this case appellant left Oklahoma and went to the state of Texas, and is now a fugitive from justice. This motion is supported by the affidavit of the then county attorney, Fletcher Riley.

Counsel for appellant filed a reply to said motion, but admits therein that appellant left the jurisdiction of this court without obtaining any proper order permitting him to do so, and has not yet returned.

In Ravenscraft v. State, 12 Okla. Cr. 283, 155 P. 198, this court held:

“When a person is convicted of crime and perfects an appeal to this court, he is not entitled to give a supersedeas bond and leave the jurisdiction without proper orders permitting him to do so.”

Under the statute (Comp. Stats. 19921, § 2812) one of the conditions of the appeal bond is that appellant will not depart without leave of court, and, where it is shown that appellant, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his appeal bond, he thereby waives the right that was given him to have the judgment of conviction superseded, and it then becomes discretionary for this court to proceed to a determination of the case on its merits, or to dismiss such appeal for that reason.

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, Judge Matson, speaking for the court, says:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would 'be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court,. but such appeal must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal statutes of this state.”

And see Holden v. State, 14 Okla. Cr. 463, 172 P. 977.

Upon the uncontroverted facts appellant has waived his right to have his appeal in this case considered and determined.

The appeal is therefore dismissed and the cause remanded to the trial court.

BESSEY, P. J., and EDWARDS, J., concur.


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    WM. F. YOUNG v. STATE.
    No. A-4580.
    Opinion Filed Jan. 20, 1925.
    (232 Pac. 447.)
    (Syllabus.)
    Evidence — Necessary Proof of Venue. Venue need not be proved beyond a reasonable doubt, but that does not imply that venue can be established without any proof whatever, or upon a mere conjecture or suspicion.
    Appeal from District Court, Blaine County; Thos. A. Edwards, Assigned Judge.
    Wm. F. Young was convicted of aiding a felon to escape, and he appeals.
    Reversed and remanded.
    I. H. Lookabaugh, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

William F. Young, plaintiff in error, here referred to as the defendant, was on the 8th day of September, 1922, by verdict of a jury found guilty of willfully aiding a fugitive from justice to escape, with his punishment fixed at confinement in the penitentiary for a term of 5 years. From the judgment in accordance with the verdict, he appeals.

In order to intelligently treat the assignments of error a brief recital of the facts will be necessary. The testimony on the part of the state shows that Frank Burch, a negro, and Earl Young, son of the defendant, were confined in the county jail of Blaine county upon a charge of conjoint robbery, under a commitment issued after a preliminary trial; that about 6 o’clock in the afternoon of June 5, 1922, Burch and Earl Young escaped from jail. The sheriff of Blaine county instituted a search for these fugitives in the country surrounding the town of Watonga and in adjoining counties. Among other places, a deputy sheriff went to Oklahoma City, where he remained several days anticipating that the son, Earl, might seek refuge at the home of the defendant, his father, in Oklahoma City. After watching the defendant’s home and his place of business for several days, this deputy sheriff, in company with the defendant, on June 10th drove in a La Fayette roadster from Oklahoma City to Watonga, by way of El Reno and Kingfisher. Near the close of that day the defendant drové back to Kingfisher, where he had a brother who was in charge of an automobile sales agency and garage. On the day following, which was Sunday, June 11th, the defendant claims that he and his brother drove from Kingfisher, by way of El Reno, to Oklahoma City. On the highway leading from El Reno to Oklahoma City, about 4y2 miles out of El Reno, two Ford cars in which there were a number of people had collided and turned partly over in a ditch by the roadside. As the defendant approached the place where this accident had occurred, the drivers of the two damaged cars and several others who were assembled there, were disputing about whose fault it was; that the defendant drove up in the La Fayette roadster and got out of his car, and after some discussion advised the drivers of the Fords that it appeared that both had been at fault, and that in his judgment neither should recover damages from the other. One of the drivers, a Mr. Zeke, then asked the defendant to take him and three others to Yukon. The defendant said he would do this.

The defendant claims that up to this time he and his brother were the only occupants of the roadster. Two or three witnesses who were at the scene of the accident say that they saw the defendant and recognized him at the scene of the accident, and that there were two other persons in this inclosed roadster, sitting in a crouched position, who did not alight. In driving on towards Yukon and Oklahoma City with the persons whom he was carrying from the scene of the accident, the defendant and the other persons who rode with him say that the defendant sat on one side of the seat of this roadster, at the wheel; that defendant’s brother sat next to defendant, in the middle of the seat; that Mrs. Zeke sat at the other end of the seat and held in her lap Mrs. Bolen; that the brother in the middle of the seat held a child about 8 years old; and that Mr. Zeke stood on the running board of the car. They all claim that, in this manner and with only the persons named in the car, they proceeded on towards Yukon, and when they had gone some 300 or 400 yards they met a car going in the opposite direction, containing three persons. (Some of the witnesses say that these cars passed at a high rate of speed; others say that they were running at from 15 to 25 miles an hour. The occupants of this passing car testified that they recognized Earl Young and the negro, Frank Burch, riding on opposite running boards of this roadster. Their identification was clear cut and positive. The occupants of the defendant’s car testified that neither Burch nor Earl Young were in the party, as did likewise one or two witnesses who were at the scene of the accident.

The three men who said they recognized Burch and Earl Young riding on the running boards of the La Fayette roadster had heard that these men had broken jail and were fugitives from justice, and also knew that this roadster belonged to Earl Young’s father. It is fair to assume that their identification was honestly made from the fact that they proceeded on to El Reno and notified the sheriff there that they had seen these fugitives; or, at least, that they believed that the persons they had seen on the running boards of the car were these fugitives, because of the fact that they recognized the car as the car belonging to the father of one of them.

In addition to the testimony of the occupants of defendant’s car, who rode from the scene of the accident to Yukon, some of whom continued on with the defendant all the way to Oklahoma City, the defendant introduced witnesses by whose testimony it was shown that Earl Young was in New Orleans with his aunt on the 11th day of June, 1922.

The defendant, by proper motions and objections in the trial court, contended, and on appeal here earnestly contends, that: First, the evidence is insufficient to support the verdict; second, that the venue of the offense, if there was an offense, was not shown to be in Blaine county.

The state’s case rests entirely upon the identity of the men said to have been riding upon the running boards of this roadster. The defendant and other witnesses say that only one man rode on the running board, and that was Mr. Zeke, one of the men who was picked up at the scene of the accident. The alleged identification of the two men as Young and Burch was made as the two cars passed, going in opposite directions, at a more or less rapid rate of speed. Under such circumstances we cannot understand how the identification of these men, riding on opposite sides of a rapidly passing car, could have been so positive as the testimony shows it to have been. The writer of this opinion is inclined to look somewhat askance at such quick, spontaneous identifications. But that, like other questions of fact, was for the jury.

Assuming that this defendant did, on that occasion, convey his son and this negro in this roadster, or on the running boards thereof, for the purpose of aiding them to escape as fugitives from justice, there is no showing anywhere in the record that any part of this transportation took place in Blaine county. This court will take judicial notice that Kingfisher is the county seat of Kingfisher county, and that El Reno is the county seat of Canadian county, and that both are populous towns and railroad centers. It follows, therefore, that, if the defendant did aid these fugitives to escape, he may have picked them up •in Kingfisher ’ or some other place in Kingfisher county, or in El Reno, or some other place in Canadian county. There is nothing in the record to indicate that any part of the transportation of these fugitives, if they were indeed transported by this defendant, occurred in Blaine county; and this court would not be justified in assuming that such was the case. While it has been held, in several cases, that the venue of the offense need not be proved beyond a reasonable doubt, that does not imply that venue can be established without any proof whatever, or upon a mere conjecture or suspicion. O’Neal v. State, 17 Okla. Cr. 386, 188 P. 1092; Arnold v. State, 15 Okla. Cr. 519, 178 P. 897; Litchfield v. State, 8 Okla. Cr. 173, 126 P. 707, 45 L. R. A. (N. S.) 153; Gritts v. State, 6 Okla. Cr. 534, 118 P. 673, 120 P. 669.

The judgment of the trial court is reversed and the cause remanded.

DOYLE, J., concurs. EDWARDS, J., not participating.


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    PRESS ROBERTS v. STATE.
    No. A-4508.
    Opinion Filed Jan. 20, 1925.
    (232 Pac. 450.)
    (Syllabus.)
    1. Assault and Battery — Evidence Showing Revolver, Used as Bludgeon, Was Dangerous Weapon. The proof show's that a 45 Colts’ revolver, used as a bludgeon, was a dangerous weapon,

      2. Trial — Definition, Given for “Dangerous Weapon?’ Sufficient, in Absence of Request for More Specific Instruction. Where no request was made of the court for a more specific definition of the term “dangerous weapon,” the definition given was sufficient.
    Appeal from District Court, Love County; B. C. Logs-don, Judge.
    Press Roberts was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    Brown, Brown & Williams, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Press Roberts was by information filed in the district court of Love county charged with an assault with a dangerous weapon upon the person of J. N. Cahoon. By a verdict of a jury the defendant was found guilty as charged, with his punishment assessed at imprisonment in the penitentiary for a term of two years.

The evidence shows that the defendant was one of a party of three riding in a Ford car. The injured man, with a companion, was approaching from the other direction, also in a Ford car. The drivers of the respective cars attempted to pass each other at a place in the highway where there was a bed of sand with deep ruts, but each failed to give the other sufficient room to pass, when both engines were stalled; the cars facing each other about eight feet apart. The defendant and others of his party had been imbibing liberally of corn whisky. The defendant got out of his car with a 45 Colts’ revolver in his hand, which he used as a bludgeon, inflicting a severe wound on the head of Cahoon as he sat in his car. The injured man was wearing a cap, and the blow was of such force as to cut the cap and penetrate the flesh, making an abrasion two and a half inches long, requiring four stitches to draw the edges of the wound together.

In his appeal here the defendant complains that there was no proof that the revolver was a “dangerous weapon,” and that the court failed to sufficiently define that term.

This court might, if it became necessary to do so, take judicial notice that a 45 Colts’ revolver in the hands of an angry man surcharged with corn whisky is dangerous per se. But here the doctrine of judicial notice need not be invoked because the proof shows that in this particular instance the weapon was indeed and in fact a' dangerous one.

No request was made of the court for a more specific definition of the term “dangerous weapon.” In the absence of such request the definition given was sufficient.

There were no extenuating circumstances shown which would justify a modification of the penalty fixed by the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    GEORGE PATTON v. STATE.
    No. A-4731.
    Opinion Filed Jan. 24, 1925.
    (232 Pac. 454.)
    (Syllabus.)
    1. Evidence — Declarations in Presence of Codefendant. Declarations of a defendant, made after the offense was committed, in the presence of a eodefendant, are admissible against himself, but inadmissible against the other defendant.
    2. Evidence — Uncontradicted Statements Made in Presence of Defendant Inadmissible. A defendant in custody is not called upon to contradict statements prejudicial to him, made in his presence, and, though they are not contradicted, they are not admissible in evidence.
    Appeal from County Court, Okmulgee County; W. A. Barnett, Judge.

      George Patton was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded for new trial.
    L. A. Wallace, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Jim Strong, Bill Connor, and George Patton did in Okmul-gee county on or about the 10th day of January, 1923, manufacture certain intoxicating liquor, to wit, corn whisky. Upon arraignment the defendants Jim Strong and Bill Con-nor each pleaded guilty, and were duly sentenced.

Upon his trial the jury returned a verdict, finding the defendant Patton guilty, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. From the judgment rendered on the verdict he appeals.

The evidence shows that John Cable, deputy sheriff, together with M. L. Lairmore, Earnest Hulsey, and Mark Moore, went out west of Okmulgee, about five miles to the home of the defendant Jim Strong. The officers searched Strong’s house, and found one half gallon of corn whisky. In a tent within a hundred feet of Strong’s house they found a still in operation, also a barrel of mash, and about a gallon of corn whisky; they arrested the three defendants.

As a witness in his own behalf the defendant Patton testified:

“I lived on the farm of W. L. McKee, of Okmulgee, with my wife and seven children; there are two houses on the place; Mr. Strong lived in the house near the tent where the still was found; Mr. Strong put the tent up to put his team in about a week before; I was over there that afternoon to see about my hogs when the officers drove up ; I was never in the tent, and I did not know the still was there, and I knew nothing about the mash or whisky.”

Of the various errors assigned it is only necessary to consider the one, that the court erred in admitting incompetent and prejudicial testimony against the objections of the defendant.

Earnest Hulsey, deputy sheriff, testified in part as follows:

“Q. Now, did you, before you left or on your way to town, or any time, hear any one of these defendants make any statement as to who owned the still? A. Well, when we came to town Strong was riding in the front seat, Patton was in the back seat; we were talking about 'Strong’s wife; she said that the still belonged to Patton, and Patton didn’t deny knowing about it. Strong said that Patton came over and let him in on it. He said Patton was in charge of the place, and that he subrented from Patton is the way he talked.
“Q. After you brought the three to jail did you have any further conversation? A. Yes, sir; but Patton was not there. He had made bond. Connor said that he lived with Patton, and worked for him, driving a team on the road.”

To the admission of this evidence, defendant excepted. We are of opinion that this testimony was incompetent and prejudicial to the rights of this defendant.

The declarations of a coconspirator or accomplice are receivable against his fellows when they accompany and explain acts done in pursuance of a concerted criminal purpose, if made during the pendency of the common criminal enterprise; if made at a subsequent period and merely narrative of past occurrences, they must be rejected. Bohannan v. State, 21 Okla. Cr. 103, 215 P. 1078.

In Ellington v. State, 21 Okla. Cr. 67, 215 P. 964, it was held that a defendant in custody is not called upon to contradict statements prejudicial to him, made in his presence, and, though they are not contradicted, they are not admissible in evidence. Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A. 1917D, 491.

The testimony objected to was hearsay, and well calculated to prejudice the substantial rights of the defendant.

For the error indicated the judgment must be reversed and the cause remanded to the lower court, for another trial.

BESSEY, P. J., and EDWARDS, J., concur.


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    CHARLIE HOLLAND v. STATE.
    No. A-4729.
    Opinion Filed Jan. 24. 1925.
    (232 Pac. 454.)
    (Syllabus.)
    Larceny — Evidence Insufficient to Sustain Conviction. In a prosecution for grand larceny, evidence held insufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Washington County; J. R. Charlton, Judge.
    Charlie Holland was convicted of grand larceny, and he appeals.
    Reversed, and new trial granted.
    Arthur Fitzpatrick, for plaintiff in error.
    •George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendant, Charlie Holland, “guilty of grand larceny as charged in the information,” and fixing his punishmtnt at imprisonment for a term of 1 y2 years.

The information charged:

“That the defendant, Charlie Holland, did in Washington county, on or about the 9th day of July, 1922, unlawfully, willfully and by fraud and stealth, take from the person of one A. L. McGregor, certain personal property, to wit, one gold Waltham watch, said watch being then and there of the value of forty dollars.”

It is assigned as error that the verdict is contrary to the law and the evidence, in that there was no value proved as to the property alleged to have been stolen, and that there was no evidence that said property was taken from the person.

The material and undisputed facts as disclosed by the testimony are that the parties concerned and others were at a resort conducted by John Vann, a few miles outside of Bartlesville; that the defendant was drunk, McGregor was lying on a cot in the yard and later missed his watch, which was carried without a chain in the watch pocket of his trousers; that the defendant picked up the watch from the ground near the side of the cot.

The Attorney General concedes that for the reasons stated the evidence is insufficient to sustain a conviction for grand larceny, but recommends that this court so modify the judgment, in respect to the punishment, as to make the same the maximum punishment prescribed for petit larceny.

A careful examination of the record convinces us that the judgment in this case should be reversed. Our statute classifying “larceny” is as follows:

“Grand larceny is larceny committed in either of the following cases:
“First. When the property taken is of value exceeding twenty dollars.
“Second. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another.”' Comp. Stats. 1921, § 2104.

There are some authorities which hold that it is necessary neither to allege nor prove value in larceny cases, except for the purpose of fixing the degree of the crime. In this ease, however, there was no proof offered to show the-value of the watch alleged to have been stolen, and the evi-1 dence failed to show that the watch in question was taken from the person of the owner as alleged.

We deem it unnecessary to consider the other errors assigned.

For the reasons stated, the judgment of the lower court is reversed and a new trial granted.

BESSEY, P. J., and EDWARDS, J., concur.


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    PRESS ROBERTS v. STATE.
    No. A-4523.
    Opinion Filed Jan. 24, 1925.
    (232 Pac. 1119.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Press Roberts and Butler Thompson were convicted of unlawful possession of intoxicating liquor, and appeal.
    Affirmed.
    James H. Mathers, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding defendants, Press Roberts and Butler Thompson, guilty on a charge of unlawful possession of intoxicating liquor, to wit, whisky, and fixing the punishment of each at confinement in the county jail for 30 days and a fine of $50. No brief has been filed and no appearance made in this court on behalf of the plaintiffs in error. When the case' was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. The motion to affirm is sustained, and the judgment of the lower court is affirmed.


author: BE'SSEY, P. J.

text:
    TAR HENNESSEE v. STATE.
    No. A-4560.
    Opinion Filed Jan. 24, 1925.
    (232 Pac. 856.)
    (Syllabus.)
    Witnesses — Cross-Examination of Prosecuting Witness to Show Bias Against Accused. Tbe defendant has a right, on cross-examination, to show the nature of the relations existing between the prosecuting witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Tar Hennessee was convicted of the offense of selling whisky, and he appeals.
    On rehearing reversed and remanded.
    Lewis Hunter, for plaintiff in error.
    The Attorney General, for the State.
   BE'SSEY, P. J.

This case was originally affirmed on November 1, 1924, for failure to diligently prosecute the appeal, as provided in rule IX of this court. The petition for rehearing indicates that there is merit in the appeal.

Plaintiff in error, Tar Hennessee, was convicted of the unlawful sale of one quart of corn whisky. The evidence shows that plaintiff in error and others, including one Bill Muse, joined together to buy some whisky to be used at a charivari party in the neighborhood where plaintiff in error resided; that Bill Muse, at the time of the trial, was charged with murder, and that plaintiff in error was the prosecuting witness against Muse; also, that Muse was the principal witness against plaintiff in error in the trial on the whisky charge — the case here under consideration.

The record shows that at the threshold of the trial, before any witnesses were examined, the triál court made the following ruling:

“Now, at this time, the court calls the attorney for the defendant and the attorney for the state of Oklahoma in consultation, and makes the ruling that the witness Bill Muse shall not be questioned concerning the charge of murder now pending against him, and that said pending murder charge be eliminated from all questions and answers in the evidence in this case on trial, and that no questions or answers shall be given in evidence as to the defendant, Tar Hennessee, being the first witness in said pending murder trial.”
“To which ruling of the court the defendant excepts, for the reason that the prosecuting witness against the defendant, the said Bill Muse, is at this time under a charge of murder against a white man, Ben Hill, and for the further reason that the defendant, Tar Hennessee, is one -of the personal eyewitnesses to this killing of Ben Hill, being the prosecuting witness against Bill Muse; and for the further reason that thp evidence submitted by B’ll Muse against the defendant, Tar Hennessee, is for the purpose of making clemency in the hope of leniency from the prosecuting officers of the county, and by reason of this hope of leniency and mitigation and the hope of changing public sentiment in his favor that the prosecuting witness, Bill Muse, would be unworthy of belief, and a conviction secured on that evidence should not stand.”

This exception was by the court allowed.

Muse testified that he and others bought a quart of corn whisky from plaintiff in error, and that his relations with plaintiff in error were friendly. At the conclusion of Muse’s testimony the following appear:

“Q. Is he (Hennessee) a witness in any other case in which you are interested?
“By Mr. Huff: Objected to by the state of Oklahoma for the reason that the same is incompetent, irrelevant, and immaterial, and has nothing to do with the case.
“By )the Court: The objection is sustained!., (To which ruling of the court the defendant excepts, and exceptions are by the court allowed.)
“Q, I will ask you if he is a witness against you in any case in which you are interested?
“By Mr. Huff: Objected to by the state of Oklahoma for the reason that the same is incompetent, irrelevant, and immaterial and has nothing to do with this case.
“By the Court: The objection is sustained. (To which ruling of the court the defendant excepts, and exceptions are by the court allowed.)”

In the case of Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, the court said:

“This state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.”

In Smith v. State, 14 Okla. Cr. 349, 171 P. 341, it was said:

“The court may permit” any question on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by a witness in chief.”

See, also, to the same effect, Phillips v. State, 20 Okla. Cr. 415, 203 P. 902.

The conviction in this case rests almost entirely upon the testimony of Muse, and the rule of evidence above stated should apply here. The jury were in all fairness entitled to know what the personal relations of these two men were in order to intelligently pass upon the credibility of the prosecuting witness, Muse. Muse, being accused of murder, would very naturally want to accommodate the county attorney in every way possible. There are other reasons why the refusal of the court to permit the inquiry may have been prejudicial.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    JIM DEVANEY v. STATE.
    No. A-4664.
    Opinion Filed Jan. 24, 1925.
    (232 Pac. 452.)
    Intoxicating liquors — Unlawful Transportation — Evidence Sufficient. Evidence examined and found to sustain the verdict and judgment.
    Appeal from County Court, Woods County; J. J. Glaser, Judge.
    Jim Devaney was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    A. J'. Stevens and C. E. Wilhite, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an appeal from the county court of Woods county, wherein the plaintiff in error was convicted in that court on information charging him with unlawfully transporting liquor.

The only assignment of error which is argued in the brief is the insufficiency of the evidence to support the findings and verdict of the jury and judgment of the court.

We have examined the record and considered the briefs on file, and it is the view of the court that the verdict is sustained by the evidence, and the judgment will, therefore, be affirmed.

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