text:
    BILL SIMS v. STATE.
    No. A-2151.
    Opinion Filed March 13, 1915.
    (146 Pac. 914.)
    1. EVIDENCE — Character Evidence — Admissibility. The state cannot prove the bad character of a defendant until he has put his character in issue.
    2. WITNESSES — Impeachment—Examination. On the proposition of impeaching the credibility of a witness for truth and veracity, the examination must be confined to the established rules as laid down in the books and by the courts, and not to the question of whether or not the accused has the reputation of having violated any specific statute or any other law.
    3. TRIAL — Issues—Reputation—Evidence. In the trial of a criminal case the issue is singular, and is based upon the question, Did the accused commit the crime charged? and not upon the question, Has the accused the reputation of having committed the crime charged, or some similar crime?
    (Syllabus by the Court.)

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.

    Bill Sims was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Pitman & Goode, for plaintiff in error.

      B. G. Spilman,, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Eill Sims, was convicted at the July, 1913, term of the county court of Pottawatomie county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 30 days.

There is only one assignment of error we find it necessary to discuss. This is based upon the proposition that the county attorney, over the objection and protest of the plaintiff in error and his counsel, attempted to impeach the reputation of the plaintiff in error without this issue having been raised by him. The record discloses the following proceedings:

“Q. What is your name? A. Park Wyatt. Q. Where do you reside? A. Tecumseh, Oklahoma. Q. State what official position you held, if any, during the year 1912. A. Assistant county attorney of Pottawatomie county. Q. Do you know the defendant, Bill Sims, in this case? A. Yes, sir. Q. How long have you known him? A. I do not know, Mr., Pitman. It has been some time. I have known him quite a while, and known him by reputation a good deal longer. Q. Acquainted with his general reputation prior to the 18th day of June, 1913, as to being a violator of the prohibition law or otherwise? Defendant objects, and asks the county attorney be reprimanded for that conduct. Sustained. The court orders the jury to retire from the court room in charge of the bailiff. The jury is ordered to return to the box. By the Court: Under this decision [Wilkerson v. SYah?] the court will have to reverse its decision sustaining the objection. Objection overruled. Comes now the defendant and objects to this testimony concerning the character or reputation of defendant for the reason it is incompetent, irrelevant, and immaterial, and. for the further reason it is not rebuttal, nor in response to any testimony brought out by defendant, and for the further reason that the defendant had no notice or knowledge of the state’s attempt to use the present witness, or any other witness, on this phase of this case, and, if the court sustains the objection, the defendant asks for a continuance of this case until he can have witnesses here to testify on this phase of the question. Overruled. Defendant excepts. Defendant further objects for the reason the name is not indorsed on this information, and renews his demand for a con tinuance on the ground of surprise. Defendant excepts. A. Yes, sir. Q. What is that reputation, Mr. Wyatt — good or bad? A. Bad.”

In the case of Kirk et al. v. State, ante, 145 Pac. 307, discussing this identical question, we said:

“Where the purpose of testimony is to impeach a witness for want of truth and veracity, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose.”

This character of examination could serve but one purpose and have but one effect — that is, to prejudice the minds of the jury, regardless of the merits of the question at issue. In the trial of a criminal case the issue is singular, and is based solely on the question, Did the defendant commit the crime charged? and not upon the question, Has the defendant the reputation of having committed the crime charged, or some other crime of similar nature?

On the authority of the Kirk case, supra, the judgment of the trial court is reversed, and the cause remanded for a new trial.

DOYDE, P. J., concurs. FURMAN, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    J. L. HOPKINS v. STATE.
    No. A-1933.
    Opinion Filed March 13, 1915.
    (146 Pac. 917.)
    1. APPEAL — Argument of Counsel — Grounds for Reversal. The plaintiff in error and live others were jointly charged with the crime of pandering. Upon his separate trial the assistant county attorney, in the opening argument for the state, and the county attorney, in the closing argument, commented on his failure to call as witnesses certain codefendants, both stating that the law gave the defendant the right to call his codefendants as witnesses in his behalf, and that the state could not call them. In each instance his counsel objected to the remarks as improper and prejudicial to the rights of the defendant, and in each instance moved the court to direct the jury to disregard such improper remarks. Held, under the constitutional guaranty that “no person shall be compelled to give evidence which will tend to incriminate him” (section 21, Bill of Rights), and under the statute providing that “the person charged shall at his own request, but not otherwise, be a eomjietent witness” (section 5881, Rev. Laws 1910), a person charged cannot be compelled to testify either for himself, a codefendant, or for the state, while he is a party in the case, and any comment on the failure of a co-defendant not on trial to testify is not within the limits of legitimate argument, and the trial court, in refusing to interpose, notwithstanding the defendant's objections, and in refusing to instruct the jury that under the law the defendant's failure to call certain codefendants as witnesses should create no presumption against him, and in refusing to direct the jury to disregard such improper remarks, gave the jury to understand that they might properly and lawfully consider the same, all of which was prejudicial to the rights of the defendant, and constitutes reversible error.
    2. SAME — Argument of Counsel' — 'Grounds for Reversal. In this case, the strength of the testimony considered, held, that the improper remarks of the prosecuting attorneys in their arguments to the jury, and the erroneous rulings of the court thereon, may have determined the verdict.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottazvatomie County; Geo. C. Abernathy, Judge.

    J. E. Hopkins was convicted of pandering, and appeals.
    Reversed.

      /. T. Williams, W. M. Taylor, and Baldwin & Carlton, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, J. L. Hopkins, jointly charged with Curt Leonard, W. R. Edmons, Mattie Edmons, Rena Beck, and M. A. Fowler, with the crime of pandering as defined in the Penal Code (section 24-25, Rev. Laws 1910), was separately tried and convicted, and his punishment assessed at two years’ imprisonment in the penitentiary and a fine of $300. To reverse the judgment an appeal was perfected.

The evidence introduced by the state was substantially the same as that introduced in the case of Edmons v. State, 9 Okla. Cr. 603, 132 Pac. 923, in which case will be found a full statement of the evidence. It will he noticed that the testimony of the state’s witnesses Josephine Pyentka and Sylvia Sekavec shows that the3r secured a room at the Saddle-Rock Hotel, in Shawnee, stayed over night, and met the defendant Hopkins for the first time the next morning, and stated to him that they did not have any money to get their breakfast, and he told them he would give them their breakfast, and took them to the kitchen, and while they were there eating their breakfast he said there was a young lady there who would like to get acquainted with them; that he called in Rena Beck and introduced her to them; that after breakfast they all went to Rena Beck’s room, and there, in the presence of all the defendants named, Rena Beck asked if they wanted to stay there, saying that it was the best thing to do, and they could make good money if they wanted to hustle; that Mr. Fowler would make dates for them, and keep watch and no one would catch them; that a little later they danced and jigged around to music made by Rena Beck and soon after they went out to look for work, and bought a paper and looked over the advertisements; that about 1 o’clock they returned to the Saddle-Rock and found all the defendants in Rena Beck's room; that ITopkins, Fowler, and Rena Beck told them they could have a room for nothing; that they stayed there that night, but that the defendant Fowler got scared, and did not make any dates for them; that the defendant Hopkins stayed at the hotel that night; the next morning Mr. Fowler told them they would have to leave; that the defendants Mr. and Mrs. Edmons and Curt Leonard said they had found a room at the American rooming house for them, and they all went there; that a few days later they returned to the Saddle-Rock, and stayed there two nights; that the defendant Hopkins was not there at that time; that the defendants Leonard and Edmons made dates for them at the American rooming house, and upon their return to the Saddle-Rock the defendant Fowler made dates for them; that Rena Beck told Josephine that Mr. Hopkins wanted to make a date with her; that the defendant Hopkins, so far as they knew, had nothing to do with the making of the dates that were made for them.

For the defense Rena Beck, a codefendant, testified that at the time she was doing housework and cooking at the Saddle-Rock Hotel; that she fixed breakfast for the girls in the kitchen, and then went to Mrs. Edmons’ room, and the girls later followed her there; that Sylvia said she had been a sporting girl for nearly a year, and would like to make some money there at the rooming house, and witness told her that they could not do that there; that Mr. Hopkins or Mr. Fowler did not allow that in the house; that they went out and returned that evening together; that the next morning she told Mr. Fowler about the girls saying that they were sports and wanted to sport there, and Mr. Fowler made them leave, and they left to go to the American rooming house; two or three days later Josephine came back to the Saddle-Rock and wanted to work there, and Mr. Fowler told her if she would stay there and be a nice girl and behave herself and help witness do the work he would give her $3 a week; that the defendant Hopkins was not there at that time; that the next day she and the girls were arrested; that she only remembered seeing the defendant Hopkins once while the girls were there, and that was the morning he told her to fix the girls something to eat.

W. M. Seaborn testified that he was rooming at the Saddle-Rock when the girls came there; that he heard the defendant Hopkins at one time say to them that if they did not go to their room' and behave themselves he was going to put them out of the house.

George Lair testified that he had been rooming at the Saddle-Rock ever since Mr. Hopkins had it; that before the girls came there he heard Mr. Hopkins tell Mr. Fowler that he wanted him to keep an orderly house, and not permit prostitutes to room there.

J. L. Hopkins, as a witness in his own behalf, testified that he met the girls at his hotel one morning, and they said that they had lost the only dollar they had and didn’t have any money to get breakfast with, and he told them to come to the kitchen and get breakfast; that he was away that day, and returned that evening, and these girls were running through the house and going on in a way that did not suit him, and he told them if they did not stop it he would put them out, and the next morning he told Mr. Fowler, who conducted the hotel for him, to put them out, and they left with Mr. and Mrs. Ed-mons ; that he never remembered seeing them after that. Cross-examined, he stated that his wife and seven children lived on his farm in Lincoln county; that he stayed there a part of the time and part of the time on his farm on the South Canadian; that he had never before been arrested.

The errors assigned are substantially the same as those passed on in the Edmons case, supra, with the following exception : Error is assigned on misconduct of the prosecuting attorneys in their arguments to the jury and the rulings thereon of the trial court.

It appears from the record that in the course of his opening argument for the state the assistant county attorney used the following language:

“Where is Fowler, and where is Edmons and Edmons’ wife, codefendants of this man on trial? The state could not call them.”

Counsel for the defendant immediately objected to this language as improper and prejudicial to the defendant, and moved the court to instruct the jury not to consider said statement for any purpose. The court overruled the motion, and allowed an exception.

It also appears that in the course of his closing argument for the state the county attorney used the following language:

“Where is Fdmons? He is one of these fellows. He did not give you his story. Why? The law gives the defendant the right to call him and produce him. For some reason he is not here. For some reason he does not face the music. There is something wrong.”

Counsel for the defendant objected, and moved the court to instruct the jury not to consider the remarks of the county attorney. The court overruled the objection and denied the motion and allowed exceptions. Thereupon the county attorney used the following language:

“Where is Mrs. Fdmons? She was there. Why didn’t she come and tell her story if it would be valuable to the defendant? He knew he did not dare. Why didn’t he produce her and let you look into her face and get the benefit of this evidence?”

The defendant again objected, and moved the court to admonish the jury not to consider the remarks of counsel for aity purpose. Objection overruled, motion denied, and exceptions allowed. The county attorney, continuing, used the following language:

“Curt Leonard, he is another fellow down there. The 'evidence shows you that he is what you would call, in politics, a ward-heeler. The evidence shows you he was not here to tell you his story. The defendant had a right to call him and let you look into his face and let you listen to his story.”

Counsel for the defendant again objected, and moved the court to instruct the jury not to consider the statement for any purpose.

“The Court: Overruled. (The defendant excepts.)”

The statute provides that in all criminal proceedings:

“The person charged shall at his own request, but not otherwise, í>e a competent witness, and his failure to make such request shall not create any presumption against him, nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.” (Section 5881, Rev. Laws 1910.)

In the case of Irvin v. State, ante, 146 Pac. 453, it is said:

“A codefendant is competent as a witness only at his own request. Pie is given the option to testify if he desires to do so. Under the constitutional provision that ‘no person shall be compelled to give evidence which will tend to incriminate him’ (section 21, Bill of Rights), and. of the statute above quoted, he cannot be compelled to testify, either for himself, a codefendant, or for the state while he is a party in the case (Buxton v. State, ante, 143 Pac. 58), and any comment on the failure of a co-defendant not on trial to testify is not within the latitude of legitimate argument. Plowever, a comment on the failure of a codefendant not on trial to take the stand cannot be considered as a comment on the failure of the defendant on trial to testify within the purview of the last clause of the statute above quoted.”

The following provisions of our Procedure Criminal prescribe the manner and mode of compelling a codefendant to testify as a witness, conditioned upon his ceasing to be a party in the case:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.” (Section 5879, Rev. Laws 1910.)
“When two or more persons are included in the same indictment or information, and the court is of opinion that in regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his co-defendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.” (Section 5880, Rev. Laws 1910.)

The county attorney and his assistant, in using the language above quoted, misstated the law, and such statements are contrary to the spirit of the law, which seeks, by well-established rules, to prevent the possibility of prejudice. The language used conveys the idea, and was intended to convey the idea, that the defendant on trial had it in his power to compel each of his codefendants, whether willing or unwilling, to testify in his behalf. That this language was prejudicial to the defendant cannot be doubted. The general rule that, if a defendant has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do so creates the presumption that the testimony, if produced, would be unfavorable, and is a circumstance against him, has no application to the nonproduction of codefendants. If the defendant had called his codefendants as witnesses in his behalf, they could not have been compelled to testify, and, if when called, they had then refused to testify, this might have been construed by the jury to the defendant’s disadvantage.

The Attorney General’s brief cites the cases of Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029, and Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43, wherein this court held that the failure of the defendant to call his wife as a witness, where the facts show that she would be a material witness in his behalf, is a proper subject of comment to the jury by counsel for the state. The doctrine of those cases is not in point. Our statute (section 5882, Rev. Laws 1910) authorizes the wife to be a witness for the husband, and his failure to produce her, where the facts show she would be a material witness for him, is, both upon principle and authority, a legitimate subject for criticism on the part of the state. See Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021.

Under the constitutional and statutory provisions, no presumption could arise from the failure of the defendant on trial to call his codefendants as witnesses in his behalf, and the jury should have been left to try the issue upon the evidence introduced- The court by refusing to sustain the objections to the improper remarks, and in refusing to instruct the jury that, under the law, the defendant had no more right than the state had to call his codefendants as witnesses, and that his failure to call certain codefendants as witnesses should create no presumption against him, and the court’s failure to direct the jury fo disregard such improper remarks as not within the limits of legitimate argument, gave the jury to understand that they might properly and lawfully consider the same, all of which was manifestly prejudicial to the substantial rights of the defendant.

Considering the doubtful character of the testimony introduced against the defendant, we think the improper remarks of the prosecuting attorneys in their arguments to the jury and the erroneous rulings of the court thereon probably determined the verdict.

For the reasons stated, the judgment herein is reversed.

FURMAN and ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    JOHN P. THORP v. STATE.
    No. A-2203.
    Opinion Filed March 13, 1915.
    (146 Pac. 915.)
    APPEAL — Evidence—Sufficiency. The Criminal Court of Appeals will not reverse the judgment of the trial court upon the ground that the verdict is contrary to the evidence, when there is testimony in the record tending clearly to support the findings of the jury.
    (Syllabus by the Court.)

      Appeal from County Court, Kiowa County; J. S. Carpenter, Judge.

    John P. Thorp was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Thos. W. Conner, for plaintiff in error.

      Smith C. Matson and R. McMillan, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, John P. Thorp, was convicted at the November, 1913, term of the county court of Kiowa county, sitting at Snyder, in said county, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The only question briefed in this case is that the evidence is insufficient to sustain the verdict, and that the court, therefore, erred in not sustaining a demurrer thereto. The material testimony offered on behalf of the state was given by Witness John Gates and Deputy Sheriff Kimbrough. Gates testified, among other things, as follows:

“Q. Are you acquainted with the defendant, John Thorp? A. Yes, sir. Q. I will ask you whether or not you obtained any intoxicating liquors — or a pint of whisky — from the defendant about the 20th day of May, 1913? A. I got a pint on that day; yes, sir. Q. Tell the circumstances. A. Well, to start with, my wife is subject to rheumatism, and she has a receipt in which she takes whisky to fill it, and she asked me if I would go up town and see if I could get some whisky. I told her I didn’t know. I would go and see if I could find any. And there was a fellow by the name of Hugdson that had boarded with me before that, but, at the time, was boarding at the Illinois Hotel, and he had told me three or four days before that he was going to order a gallon of whisky. So I came up to the Illinois Hotel, asked if he had any whisky, and he said, ‘No, I haven’t any,’ but knew where I could get it, so we came up town together, and came to this wagon yard over here, and we met Mr. Thorp, and Mr. Hugdson said, ‘Here is a man who can get some whisky for you,’ so I handed Mr. Thorp the dollar, and went on in a stall, while Mr. Hugdson and Thorp went back, I suppose, in the wagon yard, and they came back to the stall where I was at, and Mr. Hugdson handed me the whisky. Q. That was in Kiowa county, state of Oklahoma? A. Yes, sir. Q. Do you know who was running the wagon yard at that time? A. No, sir. Q. Did you see any one else around there? A. No, sir; I don’t believe so. Q. That was about the 20th day of May, 1913 ? A. Yes, sir.”

Witness Kimbrough testified, amony other things, as follows:

“Q. What official position, if any, do you hold in Kiowa county? A. Deputy sheriff. Q. Were you deputy sheriff on or about the 20th day of May last? A. Yes, sir. Q. Do you remember the occasion on- or about the day of arresting Mr. Gates with a pint of whisky? A. Yes, sir. Q. Did you see this defendant on that date? A. Yes, sir. Q. Did you see Mr. Gates and Mr. Thorp in the wagon yard known as Joe’s wagon yard? A. Yes, sir. Q. You may tell the jury where you were and what you saw. A. Well, I believed they were selling whisky from the wagon yard, and— (Objected to by defendant; sustained by the court.) A. I saw Gates and another gentleman coming in the wagon yard, and meeting Thorp, and they stopped and talked a minute, and he took them to a box stall on 'the west side of the yard, and Mr. Thorp went back into the camp house of the yard, and came out, and I supposed they had something, and I followed Mr. Gates around a block, and arrested him, and took a pint of whisky from him. Q. How far were you from the stall in which Gates went? A. About 50 yards. Q. Where were you watching? A. In the warehouse to the Stofer Mercantile Company., Q. Where is that from the, wagon yard? A. Right on the south side of it. Q. Was there anything to obstruct your view between the warehouse and this stall? A. No, sir. Q. How far were you from the place where Mr. Gates and this man you speak of first met the defendant? A. About the same distance. Q. Was there anything to obstruct your view between them when they met there? A. No, sir. Q. Who was running that wagon ward at that time ? A. I don’t know; Tom Chisholm and Thorpe, I supjoose. I don’t know whether they had it at that time or not. ■ Q. Where did you say John went after he first talked to Gates? A. Into the camp house. Q. And Gates went on to the stall? A. Yes, sir.”

The principal testimony on behalf of the plaintiff in error was given by him. The material portion of his testimony, taken from direct and cross-examination, is substantially as follows:

“Q. Are you acquainted with the witness John Gates? ‘A. Yes, sir. Q. Were you acquainted with Mr. Hugdson? A. Yes, sir. Q. The party referred to by Mr. Gates? A. Yes, sir. Q. Did you see these parties on or about the 20th day of May in a wagon yard here in this town? A. I don’t know the exact' date, but along about that time, I think. Q. When there, when did you first see these parties, John? A. Well, I met Mr. Hugd-son several times here in town. Q. I mean at the time referred to by the witness Gates, did you see them together in the wagon yard about the 20th day of May, 1913? A. Yes, sir. O. Tell the jury just when and where you saw them on that day. A. They both came in the wagon yard together. Q. What time of the day was that? A. It was in the afternoon. I don’t recollect the- exact time. It was in the afternoon. Q. Did you have any conversation with either of them or both of them? A. Yes, sir. Q. Tell the jury what occurred. A. They both came in there together, and Mr. Hugdson taken me off, and told me Mr. Gates and him was together, and that he had a pint of whisky, and wanted the money for it. Q. Well, what occurred then? Where did he take you to? Was anything said between you and Mr. Gates and Mr. Hugdson about getting a pint of whisky at any time? A. I don’t believe there was between Mr. Gates and me. Q. Between Mr. Hugdson and you in the presence of Gates? A. Well, Mr. Hugdson told me he had the whisky. Q. When did he tell you that? A. He told me that in the yard. Q. Where was Gates when he told you that? Was Gates present? A. I think he was. Q. Go ahead and tell it as nearly as you can, all that occurred. A. Well, we went back in the Box stall, and in the yard, and taken a drink of whisky, all three of us. Q. Was that your whisky? A. No, sir. Q. Did you sell any whisky to Gates or Hugdson there? A. No, sir. Q. Did you take $1 from either of them? A. No, sir. Q. Who had this whisky? A. Hugdson had the whisky. Q. Who drank out of the pint? A. Well, I taken a drink, and Mr. Gates and Mr. Hugdson, all three of us taken a drink out of it.”

Cross-examination:

“* * * Q. Now, John, you say that Hugdson told you he had some whisky, and that he had a pint of whisky, and that Gates wanted some whisky, and that he wanted $1 for a pint? When and where did he tell you this? A. He told me that in the yard. Q. Where was Gates at the time? A. I think he was ■with us. Q. How did he come to tell you he wanted you to help him get the $1? A. He didn’t tell me he wanted the $1 out of the whisky. Q. He said Gates wanted the whisky, and he said he wanted the money for it? A. Yes, sir. Q. He said that before Gates, didn’t he? A. I am not positive that Gates was there. Q. Didn’t you say that Hugdson took you off when you first began to tell about this, and told you about that ? Didn’t you make that statement awhile ago? A. That he taken me off? Q. Yes, sir; that Hugdson took you off, and that Gates wanted some whisky, and he had a pint and wanted the money for it? A. No, I didn’t say he taken me off. • I told you that he said he had a pint of whisky, and wanted $1 for it. Q. Didn’t you tell Mr. Conner that Hugdson took you off, and told you that he had this whisky, and Gates wanted some whisky, and he wanted the money for this pint of whisky? A. I don’t recollect saying he taken me off. Q. Did you go in the camp house with him? A. No, sir. Q. Did you go in the camp house at all while they was there? A. No, sir.”

Under this state of facts we are not prepared to say that there is no testimony from which the jury could legitimately conclude that the plaintiff in error was guilty. As a matter of fact, we think the jury reached a correct conclusion under the testimony. One witness testified that he purchased the whisky from the plaintiff in error and paid him for it. Another witness testified that he saw the transaction in all its details, except the delivery of the whisky and the passing of the money. The story of the plaintiff in error is very improbable and does not bear the earmarks of implicit frankness and truth. The appeal is wholly without merit.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., concurs. FURMAN, J., absent.


author: DOYLfE, P. J.

text:
    BERT GRANT v. STATE.
    No. A-1893.
    Opinion Filed March 16, 1915.
    (146 Pac. 919.)
    1. JUEY — Challenge to Panel — Grounds. Rev. Laws 1910, secs. 5827, 5829, provide that the clerk of the court "must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box,” . and "before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein. The clerk must then, without looking' at the ballots, draw them from the box.” Held, that it is the duty of the court to require the clerk to proceed according to the statutory provisions, and where the ballots drawn from the jury box were not folded so as to conceal the names therein written, a challenge to the panel should have been sustained.
    2. SAME — Competency of Juror — Voir T)ire Examination. A juror, on his voir dire examination, stated, "I would think he was guilty, or he would not be charged,” and "I think he wouldn't be charged if he was not guilty.” The Court: "I wish you would explain yourself a little further,-if you ca.n, as to that statement that you think a man must be guilty if charged.” A. "It seems somebody believes that he is guilty, or he would not be charged.” Held, that the juror was incompetent, and the challenge for cause should have been sustained.
    (Syllabus by the Court.)

      Appeal from County Court, Pottawatomie County; Ross F. Lockridge, Judge.

      Bert Grant was convicted of violating the prohibition law, and appeals.
    Reversed.

      Pitman & Goode, for plaintiff in error.

      Chas Westj Atty. Gen., for the State.
   DOYLfE, P. J.

The plaintiff in error was convicted on an information which charged that he did have in his possession whisky and beer with the intention to unlawfully barter, sell, give away, and otherwish furnish the same, and on the 25th day of November, in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for 90 days and to pay a fine of $250. To reverse the judgment, an appeal was perfected.

The only evidence introduced in the case was that of the sheriff and deputy sheriff. They both testified that they saw the defendant as he came out of a little back room of the express office in the Reeble Hotel Annex; that he proceeded west up the alley, carrying a grip, and they arrested him, and upon an examination found that the grip contained some beer and whisky; that they went to the room that the defendant had come out of, and there found a part of a barrel of beer, and a part of a case of whisky. 'No attempt b}? the state was made to prove the payment of the special tax required of liquor dealers by the United States, the payment of which, under the prohibitory law, constitutes prima facie evidence of an intention to violate the provisions of the act. Neither did the state prove, or attempt to prove, any previous sales made by the defendant.

The errors assigned are, in effect, that the verdict was contrary to law and the evidence, that the court erred in denying the challenge to the panel, that the court erred in denying challenges for cause to jurors, misconduct of the prosecuting attorney in his argument to the jury, and error in overruling motion for new trial.

After a careful examination of the record, our conclusion is that the defendant has not been convicted in accordance with the rules of law provided to secure fair trials by impartial and competent jurors. The names of six jurors were drawn from the box, and they were called to try the case. Whereupon the defendant interposed the following challenge:

“Comes now the defendant and challenges the integrity of the drawing of this jury, and the panel of jurors now in attendance in this court, and prays the court to examine the box from whence the names of said jurors were drawn and the ballots on which their names appear, and to inquire into the manner of said drawing.”

Thereupon the court called for the box containing the ballots, but refused the request of the defendant to state in the record the facts relating to the ballots, but found six ballots therein fastened together with a clip. The court excused the jurors' first drawn. Thereupon the clerk returned the ballots containing their names to the box, released the six ballots that were fastened, and proceeded to draw six ballots from the jury box, and drew the six identical jurors who had just been excused. The challenge was denied. The defendant challenged two jurors for cause, which challenges were denied, and challenged three other jurors peremptorily, thus exhausting his peremptory challenges. In support of the challenge, and the denial of the same as one of the grounds for a new trial, the defendant’s attorney, Mark Goode, Esq., was duly sworn and testified as follows:

“That after examining the jury box from which the names in this cause were drawn, and the inspection thereof by the court, six names in the jury box held together with á clip, comprising the jury in the preceding case tried, were released, and the box shaken sideways; that the clerk then raised the lid to the cigar box, and this witness sat on the desk and watched the drawing thereof, and that each and every name on every slip showed face upwards; that the witness watched this ' drawing because of the preceding transaction, and knows that all names were face upwards; that he sat farther away from the box than the clerk did, and could read each name before it was withdrawn from the box.”

Our Procedure Criminal provides (section 5827, Rev. Laws 1910):

“At the opening of the court the clerk must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box."

Section 5829, Rev. Laws 1910:

“Before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein. The clerk must then, without looking at the ballots, draw them from the box.”

It is evident that the clerk of the court failed to follow the procedure prescribed by the statute. It is of the utmost importance that court officials should be held to the strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials.

J. T. McGuire, one of the jurors, on his voir dire testified as follows:

“Q. Are you conscious of any bias or prejudice that would cause you to think a man guilty simply because he was charged with this or any other offense of the law? A. I would think he was guilty, or he would not be charged.
“The Court: Mr. McGuire, you would not consider the information that the state has read to the jury as any evidence in the case? A. No, sir. Q. And the mere fact that he was charged would not cause you to return a verdict against him? A. Oh, no. Q. What do you mean of thinking a man must be guilty or he would not be charged ? A. I think he wouldn’t be charged if he was not_ guilty. Q. How do you mean that? A. Now, I can take any case and try it according to the law and the evidence. Q. I wish you would 'explain yourself a little further, if you can, as to that statement that you think a man must be guilty if charged. A. It seems somebody believes that he is guilty or he would not be charged.”

To hold that this juror was impartial would reverse the humane and salutary rule of our law which presumes the innocence of the accused and requires proof of guilt before conviction. We think that the juror McGuire was disqualified.

We deem it unnecessary to discuss the other assignments.

For the reasons stated, the judgment herein is reversed, and the cause remanded to the trial court.

FURMAN and ARMSTRONG, JJ., concur.


text:
    SAM STEWART v. STATE. Ex parte SAM STEWART.
    Nos. A-1824, A-2416.
    Opinion Filed March 17, 1915.
    (146 Pac. 921.)
    1. PARDON — Definition and Effect. A “pardon” is an act of graee and mercy bestowed by the state through its chief executive upon offenders against its laws after conviction, and a full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates, in legal contemplation, the offense itself, and lienee its effect is to make the offender a new man.
    2. SAME — Time of Taking Effect — Delivery. A pardon takes effect upon delivery either to the person who is the subject of the favor or to some one actiug for him or in his behalf.
    3. HABEAS CORPUS — Validity of Pardon — Review by Court. This court has no power to control or in any manner interfere with the functions of the executive department of the state government, but it has jurisdiction and power to inquire upon habeas corpus into the validity of a pardon under which the petitioner seeks to be discharged from the penitentiary, where after the delivery'of the pardon he is detained in the custody of the warden upon an order of the Governor purporting to revoke the pardon.
    4. PARDON — Issuance by Acting Governor — Validity—Revocation. The pardon in this case was granted by the Lieutenant Governor, acting as Governor in the absence of the .Governor from the state. Held, that under the Constitution, art. 6, sec. 16 (165, Williams’), in the absence of the Governor from the state for any purpose or for any period of time, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor, and a pardon granted and delivered by the Lieutenant Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. A fortiori the warden has no authority to disregard it, and the Governor’s order purporting' to revoke such pardon was necessarily a nullity.

      5. APPEAL — -'Ground for Dismissal — Procurement of Pardon. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal mil be dismissed as having been abandoned.
    (Syllabus by the Court.)

      Appeal from District Court, Choctazv County; Summers Hardy, Judge.

    Sam Stewart was convicted of murder, and pending appeal applies for a writ of habeas corpus.

    Appeal dismissed as having been abandoned, and petitioner discharged.

      Stezvart & McDonald, for plaintiff in error.

      Chas. Wlest, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Sam Stewart, and Mattie Jones were jointly indicted for the murder of Henry Jones. Upon their trial the jury returned a verdict 'finding Sam Stewart guilty of murder and assessing his punishment at imprisonment in the penitentiary for life, and disagreeing as to the guilt of Mattie Jones. On April 6, 1912, judgment was rendered, and he was duly sentenced to life imprisonment, and was placed in the penitentiary to undergo said punishment. To reverse the judgment an appeal was perfected. Pending the determination of said appeal, on the 30th day of September, 1914, the Lieutenant Governor as acting Governor in the absence from the state of the Governor of the state, upon application made to him therefor, granted and issued a full, unconditional pardon for plaintiff in error. This pardon was delivered by the acting Governor on the day of its issuance to W. P. Stewart, as attorney for plaintiff in error, and who had applied to the acting Governor for it. Plaintiff in error has also filed in this court a duly verified petition for a writ of habeas corpus, representing that he is unlawfully restrained of his liberty and unlawfully imprisoned in the state penitentiary by R. W. Dick, warden. It is further averred in said petition:

“That this pardon was presented to R. W. Dick, warden of the state penitentiary of Oklahoma, who declined and refused to honor the same, and still declines and refuses to release your petitioner from custody. Your petitioner says that this pardon so granted as aforesaid is lawful and valid, and that he is entitled to his liberty; that a duplicate of said pardon is attached to this petition”

—and praying that a writ of habeas corpus issue, and that he be discharged from custody.

It is claimed by the Attorney General that the pardon was revoked by the Governor, and thereby rendered of no effect.

It is well settled that a full, unconditional pardon takes effect upon delivery either to the person who is the subject of the favor, or to some one acting for him or in his behalf. After delivery a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power and hold the pardon, when delivered, to be irrevocable. Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036, and authorities collated.

The act creating a Board of Prison Control having been repealed by the act of the present Legislature, we deem it unnecessary to discuss the contention of the Attorney General that a pardon is invalid and void because it was not presented to, or passed upon by, the Board of Prison Control. Upon the authority of Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549, paragraph 5 of the syllabus, and for the reasons stated in the case of Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036, we are of opinion that the pardon granted and delivered by the Lieutenant Governor, as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon, and as the revocation of the pardon by the Governor was without authority and void, the warden of the penitentiary had no authority to disregard the pardon herein.

When an appeal from a judgment of conviction is pending'in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned. The appeal herein is therefore dismissed.

For the reasons hereinbefore stated, we are of the opinion that plaintiff in error is entitled to his discharge from imprisonment under the judgment appealed from. He is therefore by the judgment of this court discharged therefrom.

FURMAN, J., concurring. ARMSTRONG, J., not participating.


text:
      Ex parte ROBERT DAVIS.
    No. A-2347.
    Opinion Filed March 19, 1915.
    (146 Pac. 1085.)
    HABEAS CORPUS — Denial of Writ — Illegal Restraint. The object of the writ of habeas corpus is to relieve the party detained from illegal restraint, and if this release is accomplished, and the party is not held in actual custody at the time of the hearing, there is nothing for the court to adjudicate or determine, and the writ will be denied.
    (Syllabus by the Court.)
    Application by Robert Davis for writ of habeas corpus.

    Writ denied.

      Jean P. Day and'McAdams & Haskell, for petitioner.

      Chas. West, Atty. Gen., Chas. L. Moore, Asst. Atty. Gen., and Samuel W. Hayes, for respondent.
   DOYLE, P. J.

On behalf of Robert Davis, a duly verified petition for writ of habeas corpus was filed in this court and presented to the Presiding Judge, who refused the writ, but granted a rule to show cause why the writ should not issue, returnable on the 27th day of October, 1914, at which time the respondent, Warden Dick, filed answer. ' Later a stipulation was filed, and an agreed statement of facts, from which it appears that on the 30th day of September, A. D. 1914, and for several clays prior thereto and thereafter, the Governor of the state was absent, and the Lieutenant Governor, as acting Governor in the absence from the state of the Governor, granted to petitioner a full and unconditional pardon of the offense for which he was convicted and sentenced to serve a term of five years in the penitentiary by the district court of McIntosh county, and that while the Governor was present in the state on the 6th day of October, 1914, he issued an order recalling and revoking said pardon.

It was brought to the attention of the court that on the 10th day of December, 1914, the Governor granted a parole to the petitioner, and he was discharged thereon. The object of the writ of habeas corptis is to relieve the petitioner from illegal restraint or unlawful imprisonment, and if this release is accomplished, and the petitioner is not held in actual custody at the time of the hearing, there is nothing for the court to adjudicate.

For this reason the writ of habeas corpus will be denied.

FURMAN and ARMSTRONG, JJ., concur.


text:
    EARL HELM v. STATE.
    No. A-2062.
    Opinion Filed March 19, 1915.
    (146 Pac. 1083.)
    1. TRIAL — Record of Proceedings — Examination of Jurors — Right of Accused. The examination of jurors upon voir dire, and the challenges of counsel to any juror for cause or otherwise, and the exceptions to the rulings of the court on such challenges or otherwise, are part of the proceedings during the trial, and the defendant is entitled to have the same and all other proceedings, upon his demand or request, taken down by the court reporter and correctly transcribed for use in subsequent proceeding's in the trial court, or upon apx>eal.
    2. APPEAL — Ground for Reversal — Transcript of Proceedings — Preserving Record of Trial. If the attorney for a defendant requests the trial court to direct the court stenographer to take down and transcribe any of the proceedings occurring in the presence of the court which constitute a part of the trial, for the purpose of incorporating such statement in the case-made, and the court refuses to comply with this request, such refusal will be held prejudicial error, without regard to the merits of the question, because it involves the right of a defendant to prepare and present a fair statement of what occurred in the trial court for review upon appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Jackson County; Frank Mathezvs, Judge.

    Earl Helm was convicted of assault and battery, and appeals.
    Reversed.

      P. K. Morrill and W. T. McConnell, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Earl Helm, was convicted at the March, 1913, term-of the district court of Jackson county on a charge of assault with a sharp and danger-our weapon with intent to do bodily harm without justifiable or excusable cause, and his punishment fixed at imprisonment in the state reformatory at Granite for a period of six months.

We find it necessary to discuss only one assignment of error, which is based on the proposition that the court refused to require the reporter to take stenographic notes and preserve a proper record of certain proceedings had at the trial. It appears that the plaintiff in error, through his counsel, demanded that the court require the reporter to take down the voir dire examination of the jury, together with the challenges to each juror and the exceptions reserved to the rulings of the court. This request was denied by the court, and the exceptions were duly saved.

The examination of jurors upon the voir dire, and the challenges and exceptions of counsel in these examinations, are a part of the proceedings during the trial, and the defendant is entitled to have the same taken by the court reporter and correctly transcribed for use in subsequent proceedings in the trial court or upon appeal. Section 1786, Rev. Laws 1910, is as follows:

“It shall be the duty of the court reporter to take down in shorthand and to correctly transcribe, when required, all the proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses or the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any cause pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down, * * * upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

This statute has been passed on and construed by this court. In Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005, we said:

“If the attorney for a defendant requests the trial court to direct the court stenographer to take down and transcribe any statement of attorneys, or other proceedings occurring in the presence of the court which constitute a part of the trial, for the purpose of incorporating such statement in the case-made, and the court refuses to comply with this request, this may be shown by affidavits or other competent evidence; and such refusal, when so shown, will be held to be prejudicial error, without regard to the merits of the question, because it involves the right of a defendant to prepare and present a fair statement of what occurred in the trial court for review upon appeal.”

An extensive discussion of this question is unnecessary. The Attorney General concedes that the judgment of the trial court should be reversed on this ground. Both the statutes and the holdings of this court are clear, and the rights of the plaintiff in error well defined. The trial courts should exercise sufficient diligence to follow the plain letter of the statute, especially when such statute has been construed and uniformly upheld by the appellate court.

The judgment is reversed, and a new trial awarded.

DOYLE, P. J., concurs. FURMAN, J., absent.


text:
    J. M. LYON v. STATE.
    No. A-1847.
    Opinion Filed March 19, 1915.
    (146 Pac. 1084.)
    1. TRIAL — Instructions—Construction—Harmless Error. (a) The instructions of the court upon any one point at issue in the trial of a criminal cause are to be considered in pari materia.
    (b) When the instructions of the court covering any one point in the trial of a criminal cause are considered in pari materia, and are found to state the law as favorable or more so to the accused than the proof in the record warrants, a, judgment of conviction will not be reversed on the ground that some one instruction on a particular question in the case, standing alone, is not technically correct.
    2. APPEAL — Excessive Sentence — Modification. When a review of all the facts and circumstances disclosed by the record indicates that the trial court, in rendering judgment imposed 'an excessive sentence, this court will modify the judgment in the interest of justice.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; R. C. Allen, Judge.

    J. M. Lyon was convicted of assault with a sharp and dangerous weapon with intent to do bodily harm, and appeals.
    Modified and affirmed.

      Sponsler & Graves and W. B. Moss, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, J. M. Lyon, was convicted in the district court of Wagoner county at the April, 1912, term thereof, on a charge of assault with a sharp and dangerous weapon with intent to do bodily harm without justifiable or excusable cause, upon the person of D. J. Weddle, and his punishment fixed at two years’ imprisonment in the state penitentiary.

The testimony on behalf of the state indicates that there had been for some time ill feeling between the plaintiff in error and the prosecuting witness Weddle; that on the 4th day of December, 1911, they met on the public highway in Wagoner county, near where each had a mail box, and after some words relative to the taking up of stock and the assessment of damages a personal difficulty ensued. In addition to hitting the prosecuting witness with his fist, the plaintiff in error stuck a knife into his shoulder, inflicting a flesh wound more or less painful, but not serious.

The testimony of the plaintiff in error was to the effect that he struck the prosecuting witness after having been called a liar by him; that each drew his knife and they clinched; that he stabbed the prosecuting witness in self-defense. The rural mail carrier was the only other witness in addition to the prosecuting witness. Each of them contradicted these statements. The plaintiff in error was clearly the aggressor in the immediate difficulty.

The only question argued in the brief of plaintiff in error is that certain instructions on the right of self-defense are prejudicial to him. The instruction complained of is as follows:

“You are instructed that the law of self-defense is solely and emphatically a law of necessity; that it does not imply the right to attack, and could' not avail the defendant if he was the aggressor, or if the difficulty was sought for by him, or was provoked by him by any willful act of his own, reasonably calculated to bring it about, or if he voluntarily or of his own free will enters into it; no matter how hard he was pressed, or how great his danger became during the progress of the difficulty, he would not be justified in assaulting the said D. J. Weddle; but if the testimony on this point raises in your minds a reasonable doubt as to whether or not the defendant, at the time of the assault, acted in good faith and upon reasonable appearances of danger of receiving great bodily harm, or death, at the hands of his assailant, and that defendant was not himself the aggressor, the jury should resolve that doubt in favor of the defendant and acquit him.”

Accompanying this instruction were the following:

“The court further instructs you, gentlemen of the jury, that it is the law of the land that, if one be assaulted by another, he who is assaulted may repel force with force; if, however, one assaulted by another with his hands repels such assault by the use of a sharp, dangerous, or deadly weapon, then, in that event, the position of the parties is reversed, and the one first assaulted becomes the aggressor; and the one so assaulted is justified in repelling such force with force, as the apparent danger to him may appear necessary to protect his life or from suffering great bodily harm, or to cause his assailant to desist.”
“The court instructs you that if, at the time the defendant assaulted the said D. J. Weddle, he, the said defendant, was in danger of suffering death or great bodily harm at the hands of the said Weddle, or that, viewing his danger from his standpoint, he believed in good faith that it was necessary to assault him in order to prevent being killed, or suffering great bodily harm, then the assault would be justifiable, and you should acquit the defendant.”

These instructions must be considered in pari materia, and not separate and apart from each other. Instruction No. 8, standing alone, would possibly be prejudicial, but, considered with instructions Nos. 6 and 7, the three together contain as favorable a statement of the law as the accused was entitled to have given to the jury.

The punishment was not fixed by the jury, but was imposed by the court. A careful review of all the facts indicates that, •while the plaintiff in error was guilty of the offense charged, yet there were considerable provoking circumstances, and the prosecuting witness was not wholly without blame in the premises. We are of opinion that the judgment is more severe than the facts warrant.

The judgment is modified, and the punishment reduced from two years to one year in the penitentiary. As modified, the judgment is affirmed.

DOYLE, P. J., concurs. FURMAN, J., absent.


author: DOYLE, P- J.

text:
    SAM HAYS v. STATE.
    No. A-2213.
    Opinion Filed March 20, 1915.
    (146 Pac. 1085.)
    APPEAL- — -Abandonment—Dismissal. AVhere the defendant appeals from a judgment of conviction, and no briefs are filed, or oral argument made, this court will make .an examination of the information, the charge of the court, and' the judgment, and, if no error is apparent, will affirm the judgment.
    (Syllabus by the Court.)

      Appeal from District Court, Haskell County; W. H. Brown, Judge.

    Sam Hays, convicted of the larceny of domestic animals, appeals.
    Affirmed.

      Clark & Foster, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P- J.

Plaintiff in error and Charley Arthur were jointly charged by information with the larceny of eleven hogs, the personal property of one R. N. Robersan. A severance was granted, and, upon his separate trial, the plaintiff in error was convicted and his punishment fixed at a term of two years in the penitentiary. On the 19th day of September, 1913, judgment was rendered in accordance with the verdict. An appeal was perfected by filing in this court on March 16, 1914, a petition in error with case-made. No briefs have been filed and no appearance made for plaintiff in error when the case was called for final submission. The Attorney General has filed a motion to áffirm for failure to prosecute the appeal.

We have carefully examined the information, and the instructions of the court, to which no exceptions were taken, and the judgment, and, finding no error, the motion to affirm will be sustained. The judgment herein is therefore affirmed.

EURMAN and ARMSTRONG, JJ., concur.


text:
    ALEX JEFFRIES v. STATE.
    No. A-2225.
    Opinion Filed March 20, 1915.
    (146 Pac. 1086.)
    APPEAL — Abatement—Beath. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death; and, where -it is made to appear to this court that -a plaintiff in error has died, pending the determination of his appeal, the cause will be abated.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Alex Jeffries, convicted of manslaughter in the first degree, appeals.
    Order that proceedings abate.

      Wayne H. Lasater and B. W. Patterson, for plaintiff in error.
    •S\ P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted of manslaughter in the first degree, and his punishment assessed at fifteen years in the penitentiary. On the 8th day of September, 1913, he was duly sentenced, and was placed in the penitentiary to undergo said punishment. This is the second appeal in this case. See Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823.

Since the appeal was taken, and before the final submission of the cause, suggestion of the death of plaintiff in error has been made, and the same called to the attention of the court by the Attorney General.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death. Yota v. State, 10 Okla. Cr. 26, 133 Pac. 257; High v. State, post, 146 Pac. 1197.

It is therefore adjudged and ordered that all proceedings in this prosecution be abated. The record is remanded, with direction to the district court of Garvin county to enter its appropriate order to that effect.

FURMAN and ARMSTRONG, JJ., concur.


text:
    CHARLIE HARRIS v. STATE.
    No. A-2104.
    Opinion Filed March 20, 1915.
    (146 Pac. 1086.)
    TRIAL' — Instructions—Defenses. On a trial for larceny, where circumstantial evidence alone is relied on for a conviction, and there is a direct conflict in the testimony, it is error for the trial court to fail and refuse to instruct on the law applicable to á theory of the defense which the evidence tends to support, when the defendant requests it.
    (Syllabus by the Court.)

      Appeal from County Court, Pushmataha County; L. P. Davenport, Judge.

    Charlie Harris, convicted of petit larceny, appeals.
    Reversed.

      Welch & Welch, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Charlie Harris, was tried and convicted upon an information charging him with the larceny of one pair of cotton scrapers, the property of I-Tarrel Barcom, of the value of $2. On the 18th day of July, 1913, in accordance with the verdict of the jury, the court sentenced him to pay a fine of $10 and the costs. To reverse the judgment an appeal was perfected.

The evidence for the state was substantially as follows:

J. J. Webb, deputy sheriff, testified that, on the day after the property is alleged to have been stolen, he found the defendant in the possession of two cotton scrapers. The complaining witness, Harrel Barcom, testified that the cotton scrapers were his property and were stolen from off his cultivator plow in his field; that he saw two sets of tracks leading out of the field in the general direction of the defendant’s home. Cross-examined, he stated that some months prior to the time of the alleged theft he had a difficulty with the defendant, and since that time there was ill feeling between him and the defendant.

R. A. Croger testified that a few days before the defendant wanted to borrow some cotton scrapers from him.

Charlie Harris in his own behalf testified: That he endeavored to borrow cotton scrapers from some of his neighbors, and, having failed, went to his merchant, in the town of Nelson, and requested him to order for him two Oliver cotton scrapers; that on his way home he met Ray Atkins, who stated that from Mace Harris he could borrow and have the use of a pair of cotton scrapers that day, as Mace Harris had gone to Hugo. That he went to the home of Mace Harris with Ray Atkins, and secured the scrapers, and they then went back into his field, and Atkins assisted him to adjust the scrapers to his plow. That about that time Deputjr Sheriff Webb appeared and took possession of the scrapers and arrested the defendant. That for some time prior thereto there was ill feeling existing between the defendant and the complaining witness. He denied having taken the scrapers from the Barcom field, or that he had been in the Barcom field at any time that spring. The defendant’s testimony was corroborated by Ray Atkins, who further testified that the cotton scrapers in question were owned .by his brother, Earnest Atkins.

Mace Harris testified: That on the day in question he went to Hugo, and, having heard that Charlie Harris was endeavoring to borrow cotton scrapers the day before, directed Ray Atkins to inform him that he could have the use of the cotton scrapers that day. That the scrapers in question were owned by Earnest Atkins.

Earnest Atkins testified that the scrapers in question were his, and were loaned -by- him to Mace Harris.

The defendant requested, and the court refused to give the jury, an instruction to the effect that, if they believed from the evidence “that the defendant came into possession of said cotton scrapers in the manner claimed by him (that is, that he in good faith borrowed them), then and in that event it would be your duty to acquit the defendant, although you may believe that the complaining witness was and is the owner of the same.”

The court failed to instruct the jury on this theory of the defense. The Attorney General confesses that in this there was error. We think that the confession of error is well founded. The defendant was entitled to an instruction fairly presenting the law of the case, on the theory contended for; the same having a basis in the evidence on which to rest.

In our opinion the jury should have been instructed to acquit, if the evidence in support of this theory of defense was sufficient to raise a reasonable doubt of guilt. If such doubt exists he cannot be convicted. Guilt is personal and must be proven; and where the' state’s evidence is purely circumstantial, and there is a direct conflict in the testimony, as in this case, it becomes important that the court should fairly and correctly instruct the jury on the law applicable to the case.

Eor the reason stated, the judgment herein is reversed.

EURMAN and ARMSTRONG, JJ, concur.


author: ARMSTRONG, P. J. PER CURIAM.

text:
    JAMES MONTGOMERY v. STATE.
    No. A-2043.
    Opinion Filed September 9, 1914.
    (142 Pac. 1048.)
    1. INTOXICATING LIQUORS — Prosecution — Proof. (a) In the prosecution of a person charged with selling intoxicating liquor, proof of the sale as charged is all that is required. Intent is conclusively presumed, when the sale is proved.
    •(b) The introduction of proof tending to show the payment of the special tax required of retail liquor dealers adds nothing to the state’s case when the information charges a sale of intoxicating liquor, and it is doubtful if such proof should be admitted on account of the entanglements that are likely to arise to the prejudice of the state.
    2. APPEAL — Harmless Error — Admission of Evidence. When the trial court permits the introduction of proof tending to show the payment of the special revenue tax and charges the jury that although the payment of the tax is proved and constitutes prima facie evidence of Intent upon the part of the party paying such tax to violate the law, but that before they can find him guilty they must find beyond a reasonable doubt that he did violate the law, this court will not ordinarily reverse a conviction.
    3. EVIDENCE — Character of Accused — Rebuttal—Revenue License. When an accused puts his reputation as a law-abiding citizen in issue, the state is entitled to show that he has paid the special revenue tax for the purpose of rebutting the presumption that such person is a law-abiding citizen of unimpeachable character.
    4. INTOXICATING LIQUORS — Prosecution for Unlawful Sale — Issues. County attorneys should not jeopardize the rights of the state by permitting these issues to be injected into a sale case, especially when they have a clear-cut issue 'well established.
    5. APPEAL — Ground for Reversal. When a careful review of the entire record indicates that the judgment appealed from is just and no prejudicial injury resulted from the manner in which proof was introduced, this court will not reverse the conviction.
    (Syllabus by the Court.)

      Appeal from County Court, Oklahoma County; John W: Hayson, Judge.

    James Montgomery was convicted of selling intoxicating liquors, and appeals.
    On rehearing, reversed.

      James S. Twyford, for plaintiff in error.
   ARMSTRONG, P. J.

The plaintiff in error, James Montgomery, was convicted at the March, 1913, term of the county court of Oklahoma county on a charge of selling intoxicating liquors and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days. The issues of fact are clear-cut. The prosecuting witness testified that he bought two bottles of beer from the accused and paid him 60 cents therefor. The accused denied having made the sale. Impeaching testimony was introduced as to the prosecuting witness. The accused offered testimony as to his good character, and the state introduced testimony to' show that accused had, prior to the commission of the offense, paid a special internal revenue tax and secured a retail liquor dealer’s license. The offense is alleged to have occurred in October, 1912. The license secured by the accused expired in July, 1912.

The sole and only assignment argued for reversal of this judgment is that the trial court erred in permitting the introduction of the proof of the payment of the special tax to the United States government, and it is insisted that under the doctrine laid down in Tucker v. State, 9 Okla. Cr. 555, 132 Pac. 689, the judgment should be reversed for that reason alone. Upon a careful review of the record we are unable to conclude that this judgment should be reversed on that contention. That the evidence complained of .was not admissible at the time it was offered by the state there can be no doubt; in fact, it is doubted whether this class of testimony is admissible on a charge of selling intoxicating liquors. Intent is conclusively presumed when the sale is proved and the introduction of the internal revenue license adds nothing, as the question of intent is not an issue in the class of cases we are now considering.

The court in instructing the jury told them that the payment of tlie special tax constituted prima facie evidence of an intention upon the part of the party paying such tax to violate the law, but that before they could find the defendant guilty they must find from the evidence beyond a reasonable doubt that he did violate the law as charged in the information. There is no occasion for county attorneys taking the chances necessarily incident to the introduction of this kind of testimony. In this case, however, the accused placed his good reputation as a law-abiding citizen in issue, and we are of opinion that the fact that he had paid the license was admissible for the purpose of meeting the issue raised by him. The jury had all the witnesses before them and all the facts, and the question of their credibility and the sufficiency of testimony, when there is any competent testimony, is exclusively for them under our system of jurisprudence. The people of this state have, through their lawmakers, chosen to place this responsibility on the jury and it is solely theirs. The courts have no right to repeal these statutes that no one has ever contended were improperly passed. The power of both the trial and appellate courts has been limited by the Constitution and statutes of the state, and this court is not responsible for these enactments. Whatever injustices may arise by reason of these provisions, if any, are not chargeable to us. It is our duty to enforce the law as we find it, and not to re-enact it by judicial construction to suit the wishes of the bar.

We are unable to determine, from a careful review of the record, that the judgment of the trial court should be reversed on account of errors of law.

It is therefore affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of illness.

On Rehearing.

Reversed.

PER CURIAM.

It is contended, on rehearing in this case, that this court overlooked a question which is fatal to the judgment.

During the progress of the trial, counsel for the plaintiff in error called as a witness one Strimple, and offered his testimony upon a material issue. The court excluded the testimony of the witness upon the ground that there was a case pending in court against said witness, and that to permit him to testify in the case at bar would, in the judgment of the trial court, grant immunity to the witness. . The court said, among other things:

“* * * The court does not desire to grant him immunity from that case by reason of testifying in this case, and for that reason the witness is not permitted to testify.”

Counsel for Montgomery stated to the court that he was also counsel for Strimple and that he was not seeking immunity for Strimple, but desired his testimony in order that justice might be done Montgomery. The court again denied the request and exceptions were allowed.

We are of opinion that the contention of counsel that this action upon the part of the court is fatal to the judgment, is correct. Under the law in this state, as announced by this court in the case of Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, it would have been necessary for Strimple to testify under coercion by the court before he would be entitled to immunity from prosecution. If he became a voluntary witness he would not be entitled to immunity in any event. Montgomery was entitled to his testimony, and the only way to deprive him of that right was for 'Strimple to claim the exemptions provided by the Constitution and laws of the state, and establish the same to the satisfaction of the court. This would be true, taking the most favorable view of the matter from the standpoint of the state. Under the facts disclosed by the record the court should have permitted the testimony to be given.

The doctrine announced in the original opinion is, however, the law of the land. That opinion is modified only in one respect, to wit, the judgment is reversed for the reasons herein given instead of affirmed, and the cause remanded to the trial court.


text:
    EARL R. HORINE v. STATE.
    No. A-2248.
    Opinion Filed March 6, 1915.
    APPEAL — Record.—Service—Requisites. The record on appeal to this court must show the issuance and service of summons in error, or the waiver thereof by the Attorney General, or the service of notices of appeal. Unless one of these three acts is affirmatively shown, this court acquires no jurisdiction to determine the issues raised upon the record; and only has jurisdiction to dismiss the pretended appeal and direct the enforcement of the judgment of the trial court.
    (Syllabus by the Court.)

      Appeal from District Court, Adair County; John H. Pitchford, Judge.

    Earl R. Horine was convicted of embezzlement, and appeals.
    Dismissed.

      W. J. Crump, B. B. Arnold, and W. L. Chase, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Earl R. Horine, was convicted at the October, 1913, term of the district court of Adair county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a term of five years. Judgment was pronounced on the 4th day of October, 1913. The appeal was filed in this court on the 13th day of April, 1914. No summons in error was ever issued and no praecipe therefor was ever filed by counsel for plaintiff in error. No waiver of summons in error by the Attorney General was ever filed. No notices of appeal were served as provided by law.

The Attorney General has filed a motion to dismiss the appeal on the ground that no summons in error had been issued; that the same had not been waived by the Attorney General; and that no notices of appeal were served as provided by law. The response filed on behalf of plaintiff in error admits the correctness of the statements contained in the motion of the Attorney General, but contends that these omissions were not fatal. We have held in many cases, and to the contrary in none, that the failure to file proof of the service of notice of appeal, or waiver of summons in error, or the issuance and service of same, is fatal to the jurisdiction of this court. Unless one of these acts is done as provided by law, this court acquires no jurisdiction over the subject-matter and has jurisdiction only to dismiss the appeal. Neither of these acts having been done in this case, the court has no alternative except to- sustain the motion of the Attorney General to dismiss the appeal.

The motion is sustained and the appeal is dismissed. The trial court is directed to enforce the judgment and sentence imposed.

•DOYLE, P. J., concurs. FURMAN, J., absent.


text:
    JOHN LACK v. STATE.
    No. 2228.
    Opinion Filed June 19, 1915.
    APPEAL- — Pardon—Dismissal. When an appeal from a judgment of conviction is pending in this court, and. the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    (Syllabus by the Court.)

      Appeal from District Court, Love County; S. H. Russell, Judge.

    John Lack, convicted of the crime of seduction, appeals.
    Appeal dismissed.

      Culp, Murphy & Culp and Giddings & Giddings, for plaintiff in error.

      R-. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, John Lack, was prosecuted in the district court of Love county for the crime of' seduction, as defined by section 2423 of the Penal Code (Rev. Laws 1910), and was convicted and sentenced to serve a term of one year and one day in the penitentiary. From this judgment he appealed by filing in this court on the 6th day of April, 1914, a petition in error with case-made.

Pending the determination of said appeal, on the 24th day of May, 1914, the Governor, upon an application made to him therefor, granted a full unconditional pardon for the offense of which plaintiff in error was convicted.

In Stewart v. State, ante, 146 Pac. 921, it is said that when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

The appeal herein is therefore dismissed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYEE, P. J.

text:
    BURT GRANT v. STATE.
    No. A-2149.
    Opinion Filed April 10, 1915.
    (147 Pac. 328.)
    1. INDICTMENT AND INFOKMATION — Duplicity — Redundancy. The information alleged that the defendant did "unlawfully, knowingly, willfully sell, barter, give away and otherwise furnish spirituous, vinous, fermented and malt liquors and imitations thereof and substitutes therefor, to . wit, whisky, beer, ale and wine." Held, not duplicitous, as it only charges an unlawful sale, and the words, "and otherwise furnish," may be rejected as mere •redundance.
    2. APPEAL — Verdict—Evidence—Credibility of Witnesses. The credibility of witnesses is a question solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict is contrary to law and to the evidence, this court must find as a matter of law that the evidence'is insufficient to warrant the conviction.
    (Syllabus by the Court.)

      Appeal from County Court, Pottawatomie County; ■ Hal Johnson, Judge.

    Burt Grant, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Pitman & Goode, for plaintiff in error.

      Chas. West, Atty. Gen., and S’. I. McBlhoes, Asst. Atty. Gen., for the State.
   DOYEE, P. J.

This appeal is from a judgment rendered on the 25th day of September, 1913, wherein the court sentenced the defendant in accordance with the verdict of the jury to confinement in the county jail for a period of 150 days and to pay a fine of $410, and costs, taxed at $58.95.

The evidence shows that Willis Yandell, Stonewall Morgan, Willis Bugg, and D. J. Abbott were in the defendant’s place and drank whisky and beer, and D. J. Abbott paid for the drinks. Yandell on cross-examination said the defendant was not the man who sold the drinks. Stonewall Morgan testified that he did not know whether or not the defendant was the man who sold the drinks. Willis Bugg testified that the defendant, Burt Grant, was the man who sold the drinks. His cross-examination showed that he had been convicted three times for violations of the prohibitory law. J. E. Ginn testified that he followed the other witnesses into the defendant’s place of business, and the defendant was there at that time.

In proof of the payment by the defendant of the special tax required of liquor dealers by the United States, a certified copy of the records of the office of the collector of internal revenue for the district of Oklahoma was introduced, showing the payment of such special tax by Wm. B. Grant for the year ending July 1, 1913.

One or two witnesses testified that Burt Grant’s correct' name was Wm. B. Grant. The only testimony offered by the defense was that of four impeaching witnesses. One said that Willis Bugg’s reputation as to truth and veracity was not good. The other three stated that they did not know what his reputation in that respect was.

The information charges that:

“Burt Grant did, in Pottawatomie county, state of Oklahoma, and within the jurisdiction of this court, on or about the 20th day of April, in the year 1913, unlawfully, knowingly, willfully sell, barter, give away and otherwise furnish spirituous, vinous, fermented and malt liquors and imitations thereof and substitutes therefor, to wit: Whisky, beer, ale and wine,'unto D. J. Abbott, contrary to,” etc.

Upon arraignment the defendant filed a demurrer to the information upon the grounds that:

“It does not conform to the requirements of law, in this: It is not direct and certain as to the offense charged and that more than one offense is charged.”

The judgment of the court overruling the demurrer was excepted to and is here assigned as error.

Counsel contends that the information charges the selling and also the otherwise furnishing, thus charging two offenses in one count, and that the information is bad for duplicity.

As we view it, the contention is without merit. The offense as charged in the .information was for selling intoxicating liquor, and the words, “and otherwise furnish,” do not extend the offense charged and may be rejected as mere redundance. The demurrer was therefore properly overruled.

The assignments of error based upon the instructions given by the court and the refusal of the court to give the single instruction to direct a verdict of not guilty are as devoid of merit as the subsequent assignment that the verdict is contrary to law and to the evidence.

Our conclusion is that the appeal in this case is without merit. The judgment is therefore affirmed. Mandate to issue forthwith.

ARMSTRONG and FURMAN, JJ., concur.


text:
    ELMER ADAMS v. STATE.
    No. A-2230.
    Opinion Filed April 10, 1915.
    (147 Pac. 327.)
    APPEAL — Failure to File Brief — Affirmance. Where the defendant appeals from a judgment of conviction, and no briefs are filed, nor oral argument made, this court will make an examination of the information, the charge of the court, and the judgment, and, if no error is apparent, will affirm the judgment.
    (Syllabus by the Court.)

      Appeal from District Court, Craig County; Preston S. Davis, Judge.

    Elmer Adams was convicted of assault with a dangerous weapon, and appeals.
    Affirmed.

      P. M. Smith, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Elmer Adams, was convicted in the district court of Craig county upon an information which charged that in said county, on the 25th day of May, 1913, he did willfully, unlawfully, feloniously, and without justifiable or excusable cause, strike, cut, and stab one Moses Whitmire with a sharp and dangerous weapon, to wit, a knife, with the felonious intent to injure and do bodily harm, and was sentenced to serve a term of two years in the penitentiary. From this judgment he appealed by filing in this court on April 8, 1914, a petition in error with case-made.

No briefs have been filed, nor oral argument made. • When the case was called for final submission, the Attorney General filed a motion to affirm for failure to prosecute the appeal. We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no material errors in these matters. Upon the record the motion to affirm will be sustained.

The judgment is therefore affirmed.

ARMSTRONG and FURMAN, JJ., concur.


text:
    CALVIN JEFFERSON v. STATE.
    No. A-2178.
    Opinion Filed April 17, 1915.
    (147 Pac. 778.)
    1. HOMICIDE — Manslaughter—Sufficiency of Evidence. On a trial for murder the conviction was for manslaughter in the first degree. Held, the evidence was sufficient to sustain the verdict and judgment, and that no reversible error was committed on the trial.
    2. TRIAL — Refusal of Instructions Covered. When the instructions given, considered as a whole, substantially present the law of the ease fairly to the jury, it is not error to refuse to give requested instructions fully covered by the instructions given.
    (Syllabus by the Court.)

      Appeal from County Court, Latimer County; W. H. Brown, Judge.

    Calvin Jefferson was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      J. B. Whitehead, Chas. H. Hudson, and Gray & McVay, for plaintiff in error.
    F. P. Breeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Calvin Jefferson, having been informed against for the murder of Forrest Williams, was convicted of manslaughter in the first degree, and his punishment fixed at four years’ imprisonment in the penitentiary. On the 2oth day of July, 1913, judgment was rendered in pursuance of the verdict. From this judgment an appeal was perfected by filing in this court on January 1, 1914, a petition in error with case-made.

All parties connected with this tragedy were Choctaw Indians, residing near Lodi, Latimer county. The deceased was the husband of the defendant’s stepdaughter. The defendant resided about a quarter of a mile from the home of the deceased. The body of the deceased, with three distinct knife cuts thereon, was found about midway between their homes on the morning following the tragedy. The defendant was at the home of the deceased the evening before, and all the parties had been drinking more or less. Several witnesses testified that the defendant and the deceased had a difficulty, and that later, about 9 o’clock that evening, they were heard whooping, gobbling, and jabbering at each other.

The facts most favorable to the defendant, as presented by his testimony as a witness in his own behalf, briefly stated, are as follows: The afternoon of the day of the killing he was on his way to Presley Plawkesworth’s, and met Baily Dunn and John Dunkinson, and they stopped at Forrest Williams’ house. Iiis brother Steve was there, and he called him out. That while talking to his brother, Presley Iiawkesworth and Laben White and Forrest Williams came out, and he and his brother went over to the woodpile and sat down. His brother, said Forrest Williams, had whisky, and asked him if he wanted a drink, and he said he did. Forrest Williams then came down to where they were and asked the same question, and he told him he wanted a drink. That Williams went back and returned with a bottle, and they walked out of sight of the others to drink the whisky; that later Williams brought out another bottle and then another, three in all. That he got to feeling pretty good, and his brother and Williams were drunk. That Williams then got mad and went after a gun and tried to shoot the defendant. That he and his brother Steve took the gun away from Williams. That Williams then pulled out his knife and tried to cut the defendant. That the defendant had no knife at that time, and he got his brother’s knife for the purpose of defending himself. That Williams wanted to kill him, but that he did not want to kill Williams. That Williams cut at him several times, and he caught Williams and held him. That Williams cut him on the arm. That he could have killed Williams if he wanted to, but was only defending himself and trying to get away. That he would just cut himself loose when AVilliams had hold of him, and in that way he cut AYilliams three times. That after he cut Williams the third time AA^illiams did not try to hold him or cut him any more, and he went straight home, and that he did not know he had killed Williams until the next morning.

The defendant's motion for a new trial was based solely on the following grounds: First, because the court erred in refusing compulsory process for certain witnesses; second, because the court erred in overruling the challenge for cause to juror W. B. Davis. An examination of the record discloses that these grounds are wholly destitute of merit. The petition assigns eight additional errors, based on the instructions given and the refusal of the court to give requested instructions. We regard the instructions given by the court as altogether unobjectionable. The defense interposed by the defendant and the law applicable thereto was fully and fairly submitted to the jury, and as there was no error in any other respect on the trial, the conviction must be affirmed. The judgment of the'district court of Latimer county herein is therefore affirmed. .

FURMAN and ARMSTRONG, JJ„ concur.


text:
    OSCAR LOFTIN v. STATE.
    No. A-2057.
    Opinion Filed April 17, 1915.
    (147 Pac. 505.)
    APPEAL — Verdict—Evidence—Intoxicating Liquors. In a prosecution f or having' possession of intoxicating- liquors with intent to violate provisions of the prohibition law, where there is a total absence of direct or presumptive evidence to sustain the charge, the judgment of conviction will be reversed.
    (Syllabus by the Court.)

      Appeal from County Court, Jackson County; J. M. Williams, Judge.

    .Oscar Loftin was convicted of violating the prohibitory law, and appeals.
    Reversed.

      W. T. McConnell, for plaintiff in error.

      Chas. West, Atty. Gen., and C. /. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Jackson county upon an information which charged that, “one Oscar Loftin did willfully and unlawfully have in his possession whisky with the unlawful intent to sell, barter, give away, and otherwise furnish said whisky to other persons, and to transport said whisky from one place in the state of Oklahoma to another place therein, in violation of the prohibitory liquor laws,” and was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $100. To reverse this judgment an appeal was perfected.

Of the various errors assigned, we deem it only necessary to consider the one that the verdict is contrary to law and to the evidence. John D. Bailey, sheriff, testified that he was at the town of Olustee, and with his deputy, Mr. Collins, went into a livery stable and found the defendant and Mr. Eley there; that the defendant had a quart bottle in his hand and broke it over the window sill; that he went out, “picked up the broken glass and licked up some of the contents, and found that it was whisky,” and then came back into the stable, and on the other side they found a half pint bottle about half full of whisky; that he arrested the defendant. A. W. Collins testified that he was a deputy sheriff, and with Sheriff Bailey followed the defendant into the livery stable; that the defendant had a bottle partly full of whisky in his hands, and when he saw them he broke the bottle over a nearby window sill; that he also found on the other side of the driveway a half pint bottle half full of whisky. The state rested, and the defendant demurred to the evidence, and moved the court to ,direct a verdict of acquittal. The demurrer was overruled, the motion denied, and exceptions reserved.

For the defense, E. J. Miller testified that Mr. Bradley had control of the barn, and that Mr. Wilkerson and witness occupied it with their stock; that the defendant often watered his mare at the barn, and drove in there probably once or twice a month, and other people do the same. Charles Eley testified that it was drizzling- rain, and the defendant drove in and tied his hoi'se; that he followed him into the barn, axid asked the de-fendarxt if Mr. Miller was. there; that he walked ixito one of the stalls to urinate, and the defendant walked into axxother stall to do the saxne; that the stalls were boxed up solid half way. The defendant said, “I stepped on a bottle here/" and picked it up. Just then Sheriff Bailey and Mr. Collins walked in.

Oscar Eoftin, as a witness in his owxi behalf, testified that it was misting raixi and he drove into this bax-n; that just thexx Chai'les Eley caxne in and asked about Air. Miller; that while they were talking Mr. Eley walked over into a stall, and he went hito another stall, and stepped on a bottle; that he stooped down and picked it up, and said, “Here is a bottle.” Just then he saw the sheriff and Mr. Collins coming in, and the first thing he thought was that it was whisky, and if he was caught with it there would be trouble, so he walked over to the window and broke the bottle; that he did not place it there, and that it was not his whisky; that Mr. Collins found a half pint bottle on the other side of the barn with some whisky in it; that none of the whisky belonged to him; that the litter on the floor of the stalls was four or five inches deep; that he did not drink any of the whisky; that he told the sheriff that he found the bottle there, and the sheriff arrested him and said: “Well, I will let the jury decide whether you found it or not.”

The jury are the exclusive judges of the weight of the evidence, and this court is not authorized to reverse a judgment of conviction, when there is a conflict in the material testimony, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. If, however, there is an absence of substantial evidence to support the conviction, the question is one of law.

We have carefully examined the record, and are fully convinced that the evidence in this casé is entirely insufficient to sustain the conviction. Considering the presumption that the law always indulges as to the innocence of the accused and the necessity of establishing the guilt of the defendant beyond a reasonable doubt, the evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence only raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left dependent upon mere supposition, surmise, or conjecture, it is insufficient to sustain a conviction. Foreman v. State, 8 Okla. Cr. 480, 128 Pac. 1101.

In the absence of any evidence in this case from which the jury could rationally conclude that the defendant was guilty, we think it would have been a proper exercise of the power vested in the trial court to have advised an acquittal of the defendant, upon the ground that the evidence was insufficient to sustain a conviction. It is true that there are some circumstances that are somewhat suspicious, but that is the most that can be said of them. In our opinion, it would be destroying the presumption in favor of the innocence of the defendant, and permitting a subversion of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand.

For the reasons stated, the judgment is reversed.

FURMAN and ARMSTRONG, JJ., concur.