text:
    CLYDE WEST v. STATE.
    No. A-3692.
    Opinion Filed Aug. 8, 1921.
    (198 Pac. 99.)
    (Syllabus.)
    1. Larceny — Grand Larceny — Sufficiency of Evidence-. Evidence examined and held sufficient to sustain a conviction.

      2. Same — Instructions—'Issues — Intent — Trespass as Defense. Where, in a prosecution for larceny of an automobile, the state’s evidence tended to establish guilt of the crime charged, and defendant as a witness denied taking the car, there was nO' evidence requiring the submission of any issue of variance between the allegations and the proof. Nor did defendant’s evidence tend to raise the issue of his guilt of a trespass under the special act of the 1917 Legislature (Laws 1917, C. 149) providing against defacing, injuring, molesting, driving or attempting to drive any automobile for joy-riding or any other purpfose. Defendant’s evidence in this case amounted only to a denial of the alleged felonious taking of the property, and an attempted explanation of his possession of it. His evidence in no particular disclosed a trespass against the property.
    3. Trial — Refusal of Instructions on Weight of Evidence. It is not error to refuse to give requested instructions which amount to comments mpon. the weight of the evidence and are invasions of the province of the jury.
    4. Witnesses — Impeachment—Contradictory Statements. A witness may not be impeached on any matter collateral to the matter in issue with a view to eliciting from such witness an admission at variance between former statements and those testified to on the trial. Where, however, the matter inquired about is relevant to the issue in the cause, and the witness denies having made a. statement material thereto, such statement, if contradictory to his testimony given on the trial, may be shown to impeach him.
    Appeal from District Court, Rogers County; C. W. Mason, Judge.
    Clyde West was convicted of grand larceny, and appeals.
    Affirmed.
    W.H. Kornegay, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiff in error, Clyde West, hereinafter referred to as defendant, was prosecuted in the district court of Rogers county by information charging the larceny of an automobile, the property of one Charles M. Seward. A trial to a jury resulted in a conviction, with punishment assessed at imprisonment in the penitentiary for a period of one year.

It is first contended that the evidence is insufficient to sustain the conviction, and that the trial court erred in refusing to direct a verdict of acquittal.

Under this assignment of error contention is made that the evidence does not show that the car was taken by. defendant with an intent to personally deprive the owner of it, and further that the evidence of defendant’s good reputation for honesty is sufficient to overcome any presumption of fact that defendant was the thief arising from the possession of property recently stolen.

The uncontradicted evidence is to the effect that one Seward, who was the owner of a Ford touring car, parked the same in front of a hardware store on one of the business streets in the city of Claremore late in the evening of the 18th day of February, 1919. That after transacting some business the owner returned to the place where the ear had been left and found that same had been taken without his knowledge or consent. Some two hours thereafter, defendant was found in possession of this ear, stuck in a mud hole on a public highway about three miles north of the town of Busheyhead in said county.

Defendant had been in the city of Claremore that day, and had purchased a pair of shoes at a store there, giving in payment for same a cheek on a bank in the town of Chelsea.

When defendant was apprehended in possession of the car by officers from the town of Chelsea, defendant living near said town, defendant gave a fictitious name and claimed that he had come from the city of Tulsa in the car that day. After he was placed under arrest he was put in the back seat of the car and told to stay there until the officers got the car out of the mud hole. One of the officers went to the front of the car and started to crank it and defendant grabbed the paii of shoes he had with him and started, to run. One of the officers shot toward defendant two or three times and defendant dropped the shoes and escaped. The officers recovered the car and drove it back to Claremore.

The next morning defendant returned to the scene in order to recover his lost shoes, bnt failing to find them walked on to his home, a distance of six miles, and went to work sowing oats. He was apprehended and arrested that afternoon about 4 o’clock. After being taken to the jail, the owner of the car went up to the jail. He was a total stranger to defendant, but before he had said anything to defendant, defendant voluntarily remarked to him, “I didn’t steal your car.”

Defendant was first seen in possession of the car in the town of Busheyhead. At that time the car had been stopped near a lumber yard in said town and defendant accosted a young man and asked him if he knew where he could get some oil for the car and also some water. It was then very dark and the stores were closed, but the young man found some oil and got water for the car for defendant, and this young-man desiring to go to Chelsea got in the car and rode with defendant up to the place where he was afterwards apprehended. On the way up there, defendant drove the car at a very rapid speed, and remarked to this young man, “That’s the way I drive my car when I’ve got my girl in it.”

The identity of defendant was ascertained through tracing the purchase of the shoes in Claremore, the fact that defendant had given'a check in payment for the shoes being the means of identifying and locating him.

Defendant as a witness in his own behalf attempted to explain his possession of the automobile, and testified that when he was leaving Claremore about 7:3Q o’clock p. m., he was walking along the street towards the depot to take a train to Chelsea, and a white man who was a total stranger to him asked him where he was going, and he told this man that he was going to Chelsea, and the man told him, “Well, I am going to drive up there in this car and yon can go with me;” that he got in with this stranger and drove as far as Bnsheyhead when •a car with bright headlights was seen coming in the opposite direction; that as soon as this ear was seen the stranger got ont and remarked that he was going np into the town of Bnsh-eyhead to get some oil for the car and left defendant with it. That defendant waited abont thirty minutes, and the stranger not returning, defendant concluded he wonld get some oil for the car himself, and drive, it on to Chelsea where he was known and leave it in a garage there, and that he was in the act of driving the car to Chelsea when he became stnek in the mud hole. Defendant also denied having any conversation with the young man concerning the car belonging to him (defendant), and about driving the car fast when he had his girl in it. Defendant also testified he had no recollection of having any conversation with Seward in which he denied stealing the car.

Some witnesses testified that defendant’s previous reputation for honesty in the neighborhood in which he lived was good.

The foregoing is substantially the’ material evidence in thé case.

The rule in this state is that the presumption arising from the possession of recently stolen property, to - wit, that the possessor is the thief, is one of fact and not of law. If the possession is unexplained or is unsatisfactorily explained the evidence is sufficient to sustain a conviction for larceny ; the inferences arising from such possession being for the jury to determine. Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560.

In this case defendant attempted to explain his possession of the stolen ear, but his explanation is wholly unsatisfactory and clearly incredible. An intelligent jury would hardly be expected to believe that a white man, who was a total stranger to defendant (a negro), would voluntarily accost him on a cold night in the middle of February and ask where he was going, and as a result another unusual, if not remarkable, circumstance was the peculiar coincidence that this white stranger happened to be destined for the same place that defendant was headed for. Another very remarkable occurrence connected with defendant’s possession of this car is the fact that after having stolen the car the white man would abandon it in the town of Busheyhead and never return, and it is equally unbelievable that after waiting thirty minutes for the white man to return that defendant would, if innocent, continue in the possession of the car, supply it with oil and water and continue on a journey toward his home without notifying a single person of his intentions, and again the fact that he told the young man who rode with him from Busheyhead to the mud hole that he got the ear in Tulsa and intimated that it was his car, and also drove at a very rapid speed, are circumstances not consistent with innocence, and after his arrest the fact that he gave a fictitious name and again told the officers that he came from Tulsa, and attempted to escape, were all circumstances indicative of guilt, and the fact that on the next morning he returned, to recover his shoes, the only link by which his identity could easily be ascertained, was another strong circumstance pointing to guilt.

We are of the opinion that the jury from all the facts and circumstances were authorized to conclude that the taking was felonious and that defendant was the thief. Evidence of defendant’s previous good reputation for honesty was properly admitted, and undoubtedly considered by the jury, especially we think in this ease in mitigation of the punishment, for the punishment assessed was imprisonment for a term of only one year, which is a very light sentence for the larceny of an automobile. While in some eases evidence of good character is sufficient to raise a reasonable doubt, and in a ease where, the evidence against the accused is weak and unsatisfactory, may result in a reversal of a conviction, we do not consider this such a case. In truth we believe the evidence here to clearly and unerringly establish the guilt of this defendant, and that if the jury made any mistake at all it was in not assessing a more severe penalty.

It is also contended that defendant, if guilty of any offense, was only guilty of a trespass, and should have been prosecuted under a special act of the 1917 Legislature providing against defacing, injuring, molesting or driving or attempting to drive any automobile for joy-riding or any other purpose.

It was clearly a question of fact as to whether the automobile was taken in the first instance with a felonious intent to deprive the owner thereof. If that was true the offense was larceny and not trespass, and as heretofore stated we think the evidence is amply sufficient to establish a felonious taking in this case. There is no evidence requiring the submission of any issue of variance between allegations and proof. Nothing in defendant’s testimony disclosed guilt of a different offense, and the state’s evidence proved larceny.

It is also contended that the court erred in refusing to give the following instruction:

“The explanation that has been offered in this case of the possession of the car and of how defendant was found in possession thereof is sufficient to overcome the presumption of guilt arising from the car being found in his possession.”

This instruction was properly refused as it amounts to a comment upon the weight of the evidence and is a clear invasion of the province of the jury.

It is also contended that the court erred in refusing to charge the jury on the subject of the good character of defendant coupled with the other circumstances attached with defendant’s possession of the automobile.

An examination of the instructions given discloses that the trial court gave a sufficient instruction on the subject of good character, and further the one requested on that subject was properly refused because it amounted to a comment upon the weight of the evidence and was also an invasion of the province of the jury.

The other assignments lodged against the instructions; given are covered by what has heretofore been said concerning the sufficiency of the evidence. '

It is also contended that the trial court erred in permitting the state on rebuttal to prove by the witness Seward that after defendant was arrested and in jail that he voluntarily stated to Seward, “I never stole your car.”

We think this evidence was clearly admissible for purposes of impeachment. It was material to the issues in thiss That defendant had denied any connection with the original taking of the automobile, and had attempted to explain his possession of it by testifying that he was accosted by a total stranger, a white man, and asked to ride, and that afterwards this white man deserted the car. The effect of defendant’s, testimony was, if believed, that he didn’t know the owner of the car nor where it had been taken. On cross-examination defendant in effect denied any such conversation with Seward by claiming he did not remember. If defendant had seen Seward park his car in front of the hardware store, the inference would be that he knew Seward' to be the probable owner of it, and if after his arrest he then recognized Seward and disclaimed haying stolen the car without being informed that Seward was the owner of the car, such a statement was clearly contradictory of defendant’s testimony that he had no knowledge of the original taking of the car, and therefore contradictory of his testimony that he met up with a stranger who was driving a car.

The testimony of defendant, therefore, as we view it, made this evidence material and proper for purposes of impeachment. It is only in eases where the matters elicited on cross-examination as to contradictory statements are collateral that the party eliciting the same is bound by the answer. Where the subject-matter is material to the issue and a denial of the statement is made by the witness, the subsequent impeachment of the witness is allowable. Hartwell v. State, 15 Okla. Cr. 416, 177 Pac. 383.

Finding no substantial merit in any of the grounds urged for the reversal of this judgment of conviction, the same is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    LEVI YOUNG v. STATE.
    No. A-3760.
    Opinion Filed Aug. 9, 1921.
    (200 Pac. 260.)
    (Syllabus.)
    Homicide' — Murder—Death Penalty — Reduction. In a prosecution for murder, the evidence considered, and held sufficient to warrant a verdict convicting the defendant of murder, but insufficient, under the circumstances of the case, to warrant the extreme penalty of the law, and the judgment and sentence of death is modified to imprisonment for life at hard labor.
    Appeal from District Court, Greer County; T. P. Clay, Judge.
    Levi Young was convicted of murder and the death penalty assessed, and he appeals.
    Affirmed as modified.
    E. T. Barbour, for plaintiff in. error.

      The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal from a judgment and sentence of death rendered upon a verdict finding the plaintiff in error guilty of murder and assessing the death penalty. On the 1st day of December, 1919, the county attorney filed an information in the district court of Greer county, charging the defendant, Levi Young, with the murder of Tom Johnson, in said county on or about the 11th day of November, 1919. Upon arraignment it appearing that the defendant was destitute of means to employ counsel, the court appointed counsel to conduct his defense. On the 18th day of February, 1920, the defendant was put upon his trial. The jury returned their verdict finding the defendant guilty of murder as charged, and assessed his punishment at death. Motions for new trial and in arrest of judgment were duly filed, heard and overruled, and on the 28th day of February, 1920, the court pronounced judgment and sentence in pursuance of the verdict, from which this appeal was taken. When the appeal was taken an order was entered and served on the warden of the penitentiary staying the execution of the sentence, pending the decision of the appeal.

The only contention made is that the evidence does not justify the punishment assessed and is insufficient to support a verdict assessing the death penalty; that the punishment assessed is excessive, and is the result of passion and prejudice. The evidence in the case was substantially as follows:

Jewell Williams testified:

“On the 11th day of last November I was picking cotton for Mr. Tom Johnson; Levi Young was picking cotton for Mr. Johnson at that time; Mr. Snipes and his family and my mother, Mr. Davis, and Will Hughes, his wife and a lady by the name of Willie Bledsoe, were in the cotton field; Mr. Johnson weighed my cotton and my little nephew’s cotton, and Levi Young had his cotton weighed and his sack emptied; this was about half an hour before the trouble occurred; they had been knocking off four pounds on account of the sacks being damp; Levi Young spoke to me and said he didn’t want to knock off as much as Mr. Johnson wanted to. He told Mr. Johnson that he would quit if he could hot satisfy him, and Mr. Johnson told him all right he could quit; Mr. Johnson figured up Levi’s cotton and told him how much it would come to and that he would pay him as soon as Sonny came; I took my sack and went back to picking cotton; in about ten minutes Levi Young came and began picking cotton and putting it in my sack, then he said, ‘I see Sonny coming and I will go back to the wagon and get my money and go and see about another place to pick cotton’; he went directly back to the wagon; then he went to his house, I saw him coming back to the wagon; my mother and Mr. Davis and Mr. Johnson’s boys were at the wagon. I heard three or four shots fired. ’ ’

Hycianth Johnson testified:

“I am a daughter of Tom Johnson, the deceased; about four o’clock in the afternoon my father came to the house and got some money, then he returned to his work, about a half hour later I heard the shooting.”

Mrs. Jim Snipes testified:

“I was picking cotton that day for Mr. Tom Johnson; my little girl and my baby were with me; we were all picking right close to the wagon; Mr. Johnson weighed my cotton and my little girl’s cotton, and Sonny came .along and emptied our sacks, so we went back, then I heard a shot and then another. The cotton pickers scattered around and when I got to the wagon Mr. Johnson was dead, and Sonny was shooting, but I didn’t pay much attention to that. The shots were pretty close together. ’ ’

Jim Snipes testified:

“Mr. Johnson had several negroes out there picking cotton, about 30 minutes before the trouble occurred Mr. Johnson came down and asked me for some money; I gave him $5; I heard two shots before I looked up, the last shot ‘sounded kinda dead like’; both shots sounded like a shotgun.”

Albert Johnson testified:

“My age is 21. I am the son of Tom Johnson, the deceased. My father took a bale of cotton to the gin that morning; this nigger had been picking there a week before; I don’t know whether or not my father had paid him; I was on the wagon tramping cotton when my father and this negro reached the wagon; my father said, ‘Sonny, this nigger sassed me and has been talking sassy and he refuses to take an order on Ball for his money;’ the defendant did not say anything; I told my father I would go to the house after the money to pay him off; my father said, ‘No, I will go, you tramp the wagon, I will be back in a few minutes,’ and he turned and walked towards the house; it was about 200 yards to the house; Levi Young started towards the negro house, which is a little over a half a mile from the wagon; he walked fast and in ten or 15 minutes he returned; my father had not come back at that time; Levi Young was carrying a shotgun; when he reached the wagon my father was standing near the end of the tongue; I was weighing Davis’s cotton; Lizzy Williams and my two little brothers were standing there; Levi Young said, ‘Have you got that money?’, My father answered him and said, ‘Yep’, Davis’ sack of cotton weighed 61 pounds, and I just turned to preacher Davis and asked him if that was right and as I hung the pea up I saw my father had his pocket book in his hand and a roll of bills; then I heard the shot fire; I turned and the defendant was running back and my father was in a stooping position; I could not see his right hand at the time, but later I saw a pistol in his hand, he fired the pistol, the defendant fired three shots, he was 30 or 40 steps away when the third shot was fired; I got my father’s gun and started shooting at the defendant; as I pursued the defendant I fired ten shots; I followed him something like half a mile, the shot entered the right breast and cut the right lapel of my father’s coat,' the wound was an inch and three quarters in diameter; my father had been carrying that pistol since the cotton picking season opened; it was.a 32 double-action Colts.”

H. Davis testified:

“I had been picking cotton a couple of weeks, something like that for Mr. Johnson, Albert Johnson was weighing my cotton when the shooting occurred; Levi Young was standing some distance off; Mr. Johnson was pretty close to the wagon tongue; I saw him walking with something in his hands, or coming out with it, it glimmered, a book maybe or something of that kind; Levi Walked up, he had a gun and Mr. Johnson asked him, ‘Did he want his money’, after that I heard a shot, the shooting was all done so quick I could not distinguish the shots; I turned and looked, Mr. Johnson was falling; Albert Johnson got his father’s gun and went after the defendant; Mr. Johnson’s clothes down at his right side, about the pocket somewhere, was burning and I took damp dirt and put it out. ’ ’

Elmo Johnson testified:

“I am eight years old; I remember when my father was killed; I was about a step from him; Levi Young shot him when he was counting out his money; my papa ran under the wagon tongue and Levi Young ran backwards; I found the pocket book where my papa was standing when he was shot; I just heard three shots at the wagon, something like that. ’ ’

W. D. Henry testified:

“I tracked the defendant into Altus that night and arrested him and brought him to Mangum.”

The testimony of the defendant in his own behalf is as follows:

“I am 20 years old, my people live at Waxahachie, Texas; I had been working for Mr. Tom Johnson about two weeks; I stayed with Jack Hughes in a house northwest of where the cotton wagon stood; that afternoon Mr. Johnson was weighing the cotton; and he said, ‘I am going to knock off more for the sack’;. I had agreed to knock off four pounds because it was damp,, and he says, ‘If you'can’t do any better get off the farm’. I asked him to pay me what he owed me; he said when his son came back he would pay me; it was $5.20; I told him all right I would wait; so I went down where Jewell Williams was picking and picked with her until his son came back, then I went back to the wagon to get my money; Mr. Johnson and his son were there; he told his son to get down off the wagon and he said, ‘This nigger is trying to be sassy’. I never said nothing, I asked his son to go to the house and get my money, and Mr. Johnson said, ‘No, he would get it’, then he went to his house and I went to Jack Hughes’ house; Jack’s wife was there; I stayed about thirty minutes and came back with Jack Hughes’ shotgun; I said, ‘Mr. Johnson, give me my money, please sir,’ he had his pocket book in one hand, he said, ‘All right, do you want your money, I will pay you’, and he pulled his pistol from his pocket. I jumped back and shot at him and he fired a shot. It was done so quick I do not know who fired first; I fired just one shot; because I thought he was going to kill me; I never shot the gun any more, and Mr. Johnson only fired one shot; Albert Johnson, his son, took the revolver from him and when he fired the first shot at me I was 20 steps from him, he fired four shots at me there, then he went back to his father and got some more cartridges and came back and fired six more shots at me; I just tried to get out of the way;-when I fired that shot I thought Mr. Johnson was going to shoot me.”

Jewell Williams, a witness on behalf of the defendant, testified:

“I was about 100 yards east of the wagon; it seems to me I heard the sharp report first, the first shot sounded like a: pistol. ’ ’

Upon a careful examination of the record we find no error committed on the trial of the case that would require or justify a reversal. The court in its charge submitted the issues of murder, manslaughter in the first degree and self-defense. The instructions fairly submitted the law of the case to the jury. The guilt or innocence of the defendant was a question for the jury to determine, and they have determined it against him upon testimony sufficient to sustain their verdict finding him guilty of murder.

It follows that the sole question presented for the decision of this court is, should the judgment and sentence be modified to life imprisonment? Our Penal Code provides that any person convicted of murder may suffer death or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. (Section 2319, Rev. Laws.)

Our Code of Criminal Procedure provides that:

“The appellate court may reverse, affirm or modify the judgment appealed from.” (Section 6003, Rev. Laws.)

It was said by this court in the case of Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170, that this provision of our Criminal Code makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence does not warrant.

In the case of Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613, it is said:

“By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of 'this court to examine, with the greatest care, the whole record in favor of life, and review the ease upon the ¡merits to determine whether justice requires a modification of the judgment to imprisonment for life.”

After a careful investigation of the facts in this case we are unwilling to lend the sanction of our approval to inflicting the death penalty, because in our opinion the evidence does not justify the highest punishment authorized by the law. This was not a lying in wait assassination, or a homicide committed in the commission of a felony. The dispute arose over wages due from the deceased, a white man, to this defendant, a' negro; both were armed and the negro killed the white Jnan. The prejudices that are engendered in cases of this kind among our race is a matter of common knowledge, and this may have influenced the jury to assess the extreme penalty. A capital conviction should be above suspicion of any partiality, passion or prejudice.

Our conclusion is that the punishment assessed is excessive and that justice requires a modification of the judgment and sentence of death to that of imprisonment in the penitentiary for life at hard labor.

The judgment of the district court of Greer county herein is so modified; as thus modified the judgment is affirmed.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    Ex parte C. W. MADDOX.
    No. A-3465.
    Opinion Filed Aug. 11, 1921.
    (198 Pac. 97.)
    Petition of C. W. Maddox for writ of habeas corpus.
    Cause dismissed.
    J. M. Smith, for petitioner.
   PER CURIAM.

On motion of counsel of record for petitioner in the above entitled and numbered cause, the same is dismissed without prejudice.


text:
    WILLIAM KAY v. STATE.
    No. A-3701.
    Opinion Filed Aug. 11, 1921.
    (200 Pac. 265.)
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.

      William Kay was convicted of the crime of grand larceny, and sentenced to serve a term of five years’ imprisonment in the state penitentiary, and appeals.
    Appeal dismissed.
    Venable & Clark, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, William Kay, hereinafter referred to as defendant, was convicted in the district court of Ottawa county of the crime of grand larceny, and punishment fixed as above stated.

Defendant has attempted to appeal to this court from the judgment of conviction rendered against him in the trial court by filing in this court, on the' 19th day of February, 1920, a case-made with petition in error attached. However, an examination of the record discloses that defendant, within the six months period after the rendition of judgment, served no written notices of appeal upon the court clerk or county attorney of Ottawa county, as provided in section 5992, Revised Laws 1910; nor did he, within said six months period, have any summons in error issued out of this court upon the Attorney General, or procure a waiver of the issuance and service of same by said officer, as provided in section 5997, Revised Laws 1910.

All steps necessary to confer jurisdiction of the appeal on this court must be taken in a felony case within six months after the rendition of judgment in the trial court. If the appeal is not properly perfected within the six months period, this court does not acquire jurisdiction of the same, and the attempted appeal must necessarily be dismissed, and it is so ordered.


text:
    WILLIAM KAY v. STATE.
    No. A-3702.
    Opinion Filed Aug. 11, 1921.
    (200 Pac. 266.)
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    William Kay was convicted of the crime of grand larceny, and sentenced to be imprisoned in the state penitentiary for one year and one day, and appeals.
    Appeal dismissed.
    Venable & Clark, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, William Kay, hereinafter referred to as defendant, was convicted in the district court of Ottawa county of the crime of grand larceny, and punishment fixed as above stated.

An examination of the record and files in this case discloses that the appeal was not properly perfected for the reasons stated in the case of William Kay v. State, No. A-3701, this day decided, 19 Okla. 370, 200 Pac. 265.

For the reasons given in that case, this court has not acquired jurisdiction of this appeal, and the appeal is dismissed.


text:
    Ex parte MORDECAI GOLDEN.
    No. A-4019.
    Opinion Filed Aug. 11, 1921.
    (200 Pac. 264.)
    Application of Mordecai Golden for writ of habeas corpus to obtain admission to bail.
    Bail denied.
    Utterback & MacDonald, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., Victor C. Phillips, Co. Atty., and J. T. McIntosh, for the State.
   PER CURIAM.

In this proceeding the petitioner, Mor-deeai Golden, has filed in this court a verified petition asking that a writ of habeas corpus be granted, or a rule to show cause be entered, directed to Reuel Taylor, sheriff of Bryan county, requiring him to show cause by what authority petitioner is detained without bail, and this to the end that the petitioner be admitted to bail by this court. When the petition was presented it was stipulated between counsel in open court that the writ need not issue in the first instance, and that the 'facts and merits of the application should be presented to the court upon the petition and the transcript of the testimony taken in the preliminary examination and the transcript of the testimony introduced at the hearing on the habeas corpus application before the district’judge of Bryan county and the answer of respondent.

The uneontroverted facts averred in the petition are as follows: Upon’a warrant of arrest issued by a justice of the peace of Bryan county, the petitioner was arrested and brought before said justice of the peace and a preliminary examination was had and an order ’was entered to the effect that the crime of murder had been committed, and that there was probable cause to believe that the petitioner was guilty 'thereof, and that petitioner be held to answer to the district court without bail, and an order of commitment was issued by the justice, under which the sheriff received the petitioner into his custody.

It is further averred that thereafter on the 21st day of May, A. D. 1921, petitioner made application to the district court of Bryan county for a writ of habeas corpus, to 'the end that he might be admitted to bail upon said charge and a hearing was then had before said district court upon such petition and all the evidence introduced before the justice of the peace and upon other evidence at that time offered. At the close of said 'hearing the district court refused to issue the writ and refused to admit the petitioner to bail, and said court directed that petitioner be continued in the custody of the sheriff without bail.

On the 26th day of May, A. D. 1921, the county attorney filed in the district court of Bryan county, an information jointly charging Mordecai Golden, 'together with Sadie Golden, and D. B. Williams, with the crime of murder, alleged to have been committed on or about the 16th day of 'May, 1921, by shooting one Thomas Craghead with an automatic pistol. Petitioner further avers “that the proof of’his guilt is not evident nor is the presumption of his guilt great, that therefore petitioner is entitled to be let to bail pending his trial on said information.”

The evidence for the state 'shows that about ten o’clock p. m. on the date alleged the petitioner did kill and murder Thomas Craghead, by shooting him four times with an 'automatic pistol. The shooting occurred in the town of Caddo, on the sidewalk near the Methodist church, located on the lots adjoining the home of the deceased; that the 'body was found a few minutes later lying on the sidewalk with four gunshot wounds in the breast.

The petitioner admits that he killed Thomas Craghead, but claims that he killed him in self-defense.

We have carefully read the evidence presented upon this application with a view of ascertaining whether, under the Constitution and laws, as a matter of legal right, petitioner is entitled to bail.

After a careful consideration of the same we have reached the conclusion that the petitioner is not entitled to bail as a matter of'legal right. It is therefore considered and ordered that the writ prayed for be denied and bail refused.


text:
    Ex parte CLIFFORD GRIGSBY.
    No. A-4021.
    Opinion Filed Aug. 11, 1921.
    (200 Pac. 267.)
    Petition of Clifford Grigsby for writ of habeas corpus.
    Cause dismissed.
    C. F. Gowdy, for petitioner.
    The Attorney General and James Nairn, Co. Atty., for . respondent.
   PER CURIAM.

The petition filed on behalf of Clifford Grigsby, July 11, 1921, alleges that he is¿ unlawfully imprisoned in the county jail of Nowata county by the sheriff of said county, and the facts constituting the same. A' rule to show cause why the writ should not be allowed was entered and issued. It having been made to appear that petitioner escaped, the writ is denied and the rule to show cause discharged.


text:
    Ex parte PERLE S. HOERN.
    No. A-4020.
    Opinion Filed Aug. 11, 1921.
    (200 Pac. 267.)
    Petition by Perle S. Hoern for writ of habeas corpus. Cause dismissed.
    C. E. Gowdy, for petitioner.
    The Attorney General, and James Nairn, Co. Atty., for respondent.
   PER CURIAM.

The petition filed on behalf of Perle S. Hoern, July 11, 1921, alleges that^he is unlawfully imprisoned in the county jail of Nowata county by the sheriff of said county, and the facts constituting the same. A rule to show cause why the writ should not be allowed was entered and issued. It having been made to’ appear that petitioner has escaped, the writ is denied; the rule to show cause discharged, and cause dismissed.


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    Ex parte P. P. DISMUKES.
    No. A-3907.
    Opinion Filed Aug. 11, 1921.

    (200 Pac. 267.)
    Application of P. P. Dismukes for writ of habeas corpus to be admitted to bail.
    Bail granted.
    Williams & Lewis and S. M. Rutherford, for petitioner.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

In this proceeding the petitioner, 'P. P. Dismukes, on January 10, 1921, filed in this court a petition ■asking that a writ of habeas corpus be granted, directed to John Hunt, sheriff of LeFlore county, requiring him to show cause by what authority petitioner is detained without bail, and this to the end that petitioner be admitted to bail by this court. The writ issued returnable January 17, 1921.

It is averred in said petition that he is illegally restrained and imprisoned by the sheriff of. LeFlore county,'at Poteau, on a charge of having murdered one Orpheus Yarner on the 25th day of December, 1920, in ’said county, and by virtue of a certain commitment issued by P. H. Green, justice of the peace in and for the city of Poteau, in said county, and that thereafter by reason of an order made by Hon. Geo. March, special judge, assigned by the Supreme Court of Oklahoma, to hear a petition for a writ of habeas corpus for admission to bail, filed on behalf of the petitioner, which order was made on the 8th day of January, 1921, at which time said district judge refused to admit the petitioner to bail, and directed that petitioner be continued in the custody of the sheriff without bail.

It is further averred that his restraint and incarceration is illegal and unauthorized in that the facts adduced against him at the preliminary hearing show that the proof of his guilt of the crime of murder is not evident, nor the presumption thereof great, and that under the laws of this state he is entitled to bail.

Attached to said petition is a transcript of the testimony and numerous affidavits. A hearing was had on the return day.

Upon a consideration of the evidence presented we are of opinion that petitioner is entitled to be admitted to bail, and it is the conclusion of the court that bail should be allowed in the sum of $25,000 for the appearance of petitioner to answer said charge in the district court of LeFlore county, bond to be conditioned as by law required, and to be approved by the court clerk of LeFlore county. When such bond is given and approved, said petitioner to be enlarged by the sheriff of Le-Flore county.

Done in open court this 17th day of January, 1921.


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    Ex parte HARRY CAMPBELL et al.
    No. A-3919.
    Opinion Filed Aug. 12, 1921.
    (200 Pac. 455.)
    Application of Harry Campbell and others to have amount of required bail reduced.
    Application denied.
    Streeter Speakman and Crossland & Smith, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and Thos. G. Andrews, Co. Atty., for respondent.
   PER CURIAM.

The petition filed February 18, 1921, on behalf of Harry Campbell, Roland Williams, Bob Parker, and G. R. Patton, alleges, in substance, that they and each of them are illegally restrained of their liberty and unlawfully imprisoned in the state penitentiary at McAlester, by H. L. Brown, sheriff of Lincoln county, and 'by the warden of the state penitentiary, and sets forth that petitioners were jointly charged with having on the 5th day of January, 1921, burglarized the'Farmers & Merchants Bank of Tyron, in Lincoln county in two cases, and setting forth a copy of the information so filed, attached to the petition.

It'is further averred that the bond of each was fixed by the district court in the sum of $25,000, and that said bonds required are excessive and unreasonable, and that the district judge of Lincoln county was without authority or jurisdiction, to cause the said defendants to be committed to the said penitentiary at McAlester before trial and conviction was had, and that the constitutional rights of the defendants are thereby invaded, and praying that their bonds be fixed, by this court for their appearance, in a reasonable sum.

Also attached to said petition is an order of commitment, which among others contains the following recital:

“The county attorney suggests to the court the inadequacy and lack of facilities of the county jail to keep said defendants and each of them until the first day of the next regular term, and asks the court to commit the said defendants and each of them to the custody of the warden of the state penitentiary at McAlester, Oklahoma, and there to await the further order of this court; and'that the sheriff of Lincoln county, Oklahoma, deliver the said defendants and each of them to the warden of the said penitentiary.”

Upon the hearing counsel for the state demurred to the petition on the ground that the facts alleged were insufficient to entitle the petitioners to the relief prayed for; citing Ex parte Ruble, 18 Okla. Cr. 134, 193 Pac. 1009, wherein this court said:

“In applications of this kind we are not to assume the functions of the committing magistrate or the trial court in fixing the amount of bad. Before this court is authorized to interfere, the bail required must be per se excessive and clearly disproportionate to'the offense involved.”

After a careful examination of the record presented, we are of opinion that the demurrer to the petition is well taken. The demurrer is therefore sustained and the application denied.


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    Ex parte LARRY REEDY.
    No. A-2986.
    Opinion Filed Aug. 16, 1921.
    (198 Pac. 97.)
    Petition of Larry Reedy for writ of habeas corpus.
    Petitioner ordered discharged.
    J. D. F. Jennings, for petitioner.
    B. D. Shear and Frank N. Watson, for respondent.
   PER CURIAM.

This was an application to this court for a writ of habeas corpus filed April 21, 1917, upon the ground that petitioner, Larry Reedy, “is unlawfully restrained of his liberty and imprisoned in the city jail of Oklahoma City by W. B. Nichols, chief of police.” The writ issued returnable forthwith. Obedient to the writ respondent produced petitioner and filed answer as follows:

“Comes now the city of Oklahoma City and confesses the writ to show cause heretofore issued in the above entitled cause and prays the court that said petitioner, Larry Reedy, be released.”

It was thereupon adjudged and ordered that petitioner be discharged.


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    In re IKE BILYEU.
    No. A-2994.
    Opinion Filed Aug. 16, 1921.
    (198 Pac. 318.)
    Petition for writ of habeas corpus by Ike Bilyeu.
    Writ denied, and rule to show cause discharged.
    C. T. Huddleston, for petitioner.
    T. S. Hurst, Co. Atty., for respondent.
   PER CURIAM.

On behalf of Ike Bilyen a petition for writ of habeas corpus was filed in this court April 30, 1917, alleging that petitioner is unlawfully imprisoned in the county jail of Okfuskee county, by the sheriff of said county. A rule to show cause was entered and issued, and the answer duly filed shows that petitioner upon arraignment in the superior court of Okfuskee county, on a charge of larceny of domestic fowls, entered a plea of guilty and was by the court sentenced to be confined in the county jail for two months and to pay a fine of $100 and the costs. Thereupon the writ was denied and the rule to show cause discharged.


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    Ex parte JOHN M. COUCH.
    No. A-2922.
    Opinion Filed Aug. 16, 1921.
    (198 Pac. 318.)
    Application for writ of habeas corpus of John M. Couch.
    Writ denied.
    Homer Hurst, for petitioner.
    Chas. B. Selby, Co. Atty., for respondent.
   PER CURIAM.

This is an application to this court for writ of habeas corpus by John M. Couch, upon the ground that he was not guilty of the charge of- murder made in the complaint filed before T. F. Donnell, a justice of the peace of Oklahoma county, upon which a preliminary examination was had, and he was held without bail for the murder of one Rowland D. Williams, alleged to have been committed in Oklahoma county on the 18th day of January, 1917. A demurrer was interposed on the ground that the facts stated in the petition, if established, will not warrant the discharge of the petitioner, which demurrer was sustained and the writ denied.


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    Ex parte CHARLES LANDERS.
    No. A-3903.
    Opinion Filed Aug. 16, 1921.
    (200 Pac. 266.)
    In the matter of the application of Charles Landers for a writ of habeas corpus.
    Rule to show cause discharged, and writ denied.

      ' B. F. Garrett, for petitioner.
    A. Y. Dinwiddie, for respondent.
   PER CURIAM.

Petitioner, Charles Landers, filed in this court on the 29th day of December, 1920, petition for writ of habeas corpus, claiming that he was illegally restrained of his liberty in the county jail of Logan county by Ed Robertson, sheriff of said county, on a commitment issued out of the county court of said county on a judgment of conviction rendered in said court on the 23d day of October, 1920; but petitioner alleged and contended that an appeal had been taken from said judgment to this court, and an appeal bond approved, and that the time for taking said appeal had not expired when said commitment was issued. Upon the filing of said petition in this court, a rule to show cause why the writ should not be granted was issued to Ed Robertson, sheriff of said county, returnable on the 3d day of January, 1921.

An examination of the record before us discloses that a judgment for a conviction of a violation of the prohibitory liquor laws was rendered in the county court of Logan county against petitioner on the 23d day of October, 1920, and that at said time the court allowed petitioner 60 days within which to perfect said appeal, and that said 60 days expired on December 22, 1920, without any further order having been made or entered by said court allowing petitioner any additional time within which to lodge an appeal in this court; that the petitioner was not committed to the custody of the sheriff until the 23d day of December, 1920.

Response to the petition shows that alter the rule to show cause why the writ should not be issued was granted by this court, petitioner applied to the county court of Logan county for an order of an entry nunc pro tunc showing that on the 21st day of December, 1920, petitioner had been granted an additional extension of 30 days to perfect an appeal from said judgment, but on hearing said motion the trial court denied the same on the ground that no application had been made for such an order prior to the expiration of the original sixty days, nor had any such extension been granted by the trial court.

From the record before us it is clear that petitioner is not entitled to. the relief prayed for. The rule to show cause, therefore, is discharged and the writ denied.


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    N. H. McCLENDON v. STATE.
    No. A-3648.
    Opinion Filed Sept. 6, 1921.
    (200 Pac. 464.)
    (Syllabus.)
    1. Homicide' — Assault With Intent to Kill — Evidence. In a prosecution for assault with intent to kill, evidence considered and held sufficient to support the verdict and judgment of conviction.
    2. Same — Self-Defense1—Cross-Examination. In a prosecution for shooting another with intent to kill, where the defendant testified in his own behalf and admitted the shooting-, but claimed that he acted in self-defense, his cross-examination for the purpose of showing motive eliciting his statement that the complaining witness had procured his arrest a few days before, was proper.
    3. Trial — Lecturing Jury. The practice of calling in a jury and lecturing them upon the desirability of an agreement is not to be comimended; but a statement by the trial judge to a jury that a disagreement would be expensive both to the state and the defendant was not erroneous, as attempting to induce an agreement on account of the expense of another trial.
    Appeal from District Court, Johnston County; J. H. Line-baugh, Judge.

      N. H. McClendon was convicted of assault- with intent to kill, and appeals.
    Affirmed.
    Cornelius Hardy, for plaintiff in error.
    S. P. Freeling, Atty. Gen., E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was tried and convicted upon an information for an assault with intent to kill, by shooting one Everett Scott with a shotgun, and in accordance with the verdict of the jury, was sentenced to be imprisoned in the penitentiary for a period of one year and one day. From the judgment he appeals.

Upon arraignment the defendant filed the following motion :

“Comes now the defendant and moves the court to dismiss' the information filed herein for the reason that a certified record of the proceeding, together with all the papers in the case, showing a preliminary examination has not been filed in this court as required by law, before the filing of the information herein.”

The court overruled the motion, and this is the first error assigned.

The record shows the original complaint filed before the justice of the peace, and on the back of the complaint is indorsed :

“On this 2d day of March, 1918, the defendant in open court waived his preliminary; examination — also the order that he be held to answer said complaint in the district court of Johnston county. Bond fixed in the sum of one thousand dollars. (Signed:) W. E. Tarpley, Justice of the Peace.”

Thus it appears that the motion to dismiss was properly overruled.

The complaining witness testified in substance as follows as to the facts of the difficulty:

“It was sunset when I started home from Ot. Smith’s. I had gone about 250 yards when the defendant hollered at me ‘Hey Everett.’ I turned around and he fired two shots, ten shots penetrated my leg, and three penetrated my back. I shot at him as quick as I could after he shot me; I fired five shots; my pistol was a little old 32.”

Three or four witnesses testified that they heard the shooting, and that the first two shots seemed to be the report of a shotgun, and then three or four seemed to be the report of a pistol. Two witnesses testified that they found gun wads on the roadside near a plum thicket.

As a witness in his own behalf, N. H. McClendon testified:

“I was going up to Mr. Miller’s that evening and when I reached the road I heard Everett Scott say, ‘Hold up there, Mc-Clendon, you damn son-of-a-bitch you. ’ Scott commenced firing at me and I fired two shots at Scott with my shotgun. I reloaded my gun and Scott asked me not to shoot him any more; I told him I would not; the trail I was following led by the plum thicket where the shooting occurred. ’ ’

On cross-examination the following questions were asked and answers given against the defendant’s objections:

“About two or three days before you shot Mr. Scott, he had you arrested and caused you to be thrown in jail?
“He had me arrested, but I didn’t stay in jail.”

The defendant moved to strike out the question and answer and asked the court to instruct the jury not to consider the same, which motion was overruled and exception reserved.

The second assignment is based upon this ruling of the court, and it is contended that such cross-examination was improper and highly prejudicial to the defendant. There was no error committed in the admission of this testimony. The state had the right to offer any evidence tending to prove a motive for the commission of the crime charged, and it was competent to show by cross-examination of the defendant, his ill feeling, hostility or malice towards the complaining witness, as tending to show motive for making the assault.

After the submission of the cause to the jury, and after they had been for sometime in their room, they returned into court and the foreman reported they had been unable to agree upon a verdict. However, some of the jurors stated that there was a probability of reaching an agreement while others stated they could not agree. The court returned the jury for further consideration. Thereupon the defendant moved the court to discharge the jury, when the following occurred:

The Court: "Defendant’s motion is overruled. I said it would be expensive both to the state and the defendant; that the defendant and the state would both be put to expense and trouble. ’ ’

It is now insisted that the court sought to coerce a verdict. The record shows that on the evening of the 28th day of May, 1919, the jury retired to consider of their verdict, and that the verdict was returned on the following day.

In the case of Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796, it is said:

"The length of time during which a jury should be required to consider a case is within the sound discretion of the trial court, and this court will not interfere with the exercise thereof unless manifestly abused. It is impossible to state any rule by which to determine what language by the court is sufficiently coercive to invalidate a verdict. This depends upon the circumstances of each case. No court would by mere physical exhaustion, force a verdict when satisfied that failure to agree resulted from conscientious difference of judgment as to the weight of the evidence. It is the duty of the court to detain the jury until satisfied that failure to agree springs from that cause, and that alone. It must then be left to the sound discretion of the trial judge to determine how ■long the jury shall be detained, and what, if anything, shall be said as to the probable length of the detention. Unless this .judicial discretion is abused, the verdict should stand. ’ ’

In this case it is our opinion that the statement by the trial judge to the jury that a disagreement “would be expensive both to the state and to the defendant” was not erroneous as attempting to induce an agreement on account of the expense of another trial. However, we will take this occasion to say that the practice of calling in a jury and lecturing them upon the desirability of an agreement, is not to be commended.

None of the other questions raised by the assignments present any error, or call for any discusssion, other than to say the instructions given fully covered the law of the case, and the testimony on the part of the state was amply sufficient to sustain the verdict. The judgment of the lower court is therefore affirmed.

MATSON and BESSEY, JJ., concur.


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    BEN SMITH v. STATE.
    No. A-3605.
    Opinion Filed Sept. 8, 1921.
    (200 Pac. 553.)
    (Syllabus.)
    1. Homicide — Murder—Conviction—Sufficiency of Evidence. In a prosecution for murder, the evidence examined and held to sustain a joint verdict of guilty with imprisonment for life at hard labor.
    2. Same — Conspiracy—Evidence of Acts of Conspirator. Where there is testimony tending to show community of design between two or more persons to commit a crime, the acts and declarations of one of them done and made in furtherance of the- common design are admissible in evidence in a prosecution against another of the conspirators for murder committed in pursuance and in furtherance of the conspiracy, and this is the rule though such acts and declarations were not done and made in the presence of the defendant on trial.

      3. Conspiracy — Evidence. "Where there is testimony of a conspiracy to commit a crime, and of its subsequent commission, the state may, in support and corroboration thereof, show any act, declaration, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy or reasonably indicates preparation or motive to commit the crime.
    Appeal from District Court, Pittsburg County; E. W. Higgins, Judge.
    Ben Smith was convicted of murder and he appeals.
    Affirmed.
    W. H. Fuller, J. M. Porter, and J. L. Fuller, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for murder, the punishment having been assessed at life imprisonment. The information charged that Otto Collins, Ben Smith, and J. J. Birdwell, did in Pittsburg county on the 25th day of August, 1918, kill and murder Price Jett. Upon arraignment, J. J. Birdwell demanded and was granted a severance. Appellant, Ben Smith, and the' defendant Otto Collins were jointly tried and convicted of murder, the jury fixing their punishment at life imprisonment.

Motion for new trial was duly filed, overruled and judgments rendered. Appellant, Ben Smith, upon a proper application was allowed an appeal as a poor person at' the expense of the county.

The principal ground urged for a reversal of the judginent is that the evidence is not sufficient to sustain the verdict and in disposing of that contention it is necessary to discuss in detail the facts and circumstances which tended to establish appellant’s guilt.

Sunday morning, about half past nine on the date alleged, Price Jett and Lee Jett, his father, were shot and killed by appellant, Ben Smith, and the defendant, Otto Collins.

About a year before Price Jett had killed Jim Collins, a brother of Otto Collins; on his trial the jury failed to agree; Lee Jett had claimed that Otto Collins had shot him from ambush. The Jetts lived on a farm about four miles west of Blocker; Price Jett had a heifer that strayed. On the Friday preceding the killing, the defendant Birdwell saw the Jetts, but did not mention to them anything about knowing the whereabouts of the heifer. On Saturday, the day before the killing, Birdwell had a conversation with Otto Collins in front of the postoffice in Blocker; late in the day Birdwell rode up to the house of a man named Biggs, Ben Smith and Otto Collins were sitting on the porch and he got off his horse and went and had a conversation with them; later the same day he went to the home of the Jetts, strangers to him except he knew their names, and told Lee Jett that he knew where the lost heifer was and that he saw the heifer near his coal bank about two miles east of Blocker; he also said he would have told them on the day previous, but had forgotten about it; he then stated he wanted the Jetts to go with him the next morning and get the heifer. Lee Jett’s wife did not want him to go for the heifer and Birdwell said that everything would be all right, that he had never betrayed a man in his life or got him killed; finally the Jetts agreed to go. Birdwell was seen that night in conference with Otto Collins at a Holy Roller meeting held in an arbor near Blocker. The following morning Price Jett and Lee Jett, his father, rode to the town of Blocker, where they met Birdwell, and from there they apparently started to Birdwell’s coal bank to get the heifer; they went a mile east of Blocker and turned into a lane running directly south a half a mile to a mountain densely covered with timber and shrubbery; a wire gate had been placed at the south end on the Friday before the killing by Chris LeFlore, who owned the place. It was fastened with wire loops at the top and bottom. It appears that at the time of the homicide both sides of the gate had been wired to the post by strands of barb wire; the Jetts and Birdwell rode down the lane, when the Jetts stopped at the gate they were shot by Otto Collins and Ben Smith, using high power rifles. Price Jett’s body was found about a third of the way down the lane towards the road from the gate; outside of the gate near a big tree were found two high power rifle shells; directly south of the gate, near a log lying in a thicket, was found four thirty-eight empty shells. On leaving home that morning at the suggestion of his wife Lee Jett took his pistol, he had it wrapped in his coat and after the killing his coat was found tied to the saddle of his horse and a loaded pistol was found tied up in the coat. Price Jett took with him a pistol called an “Owl Head;” this gun was found by the corpse; it contained two or three shells and two or three loads; there was also a Colts automatic found by the side of his body. The evidence shows that nearby in the brush two horses had been tied, and the indications were that they had been tied there an hour or two.

Boss Bassett testified :

“I saw J. J. Birdwell and two other men ride into the lane; I was behind my house when I heard the first shots; I stepped out where I could see the lane and saw Birdwell coming up the lane on his horse and there were two men running and shooting ; I walked out to the road; then the two men stopped running and seemed to be shooting down at one place; as near as I could tell the two men shooting were one on each side of the lane; four or five shots were fired before I could see who was shooting; after that there must have been fifteen or twenty. Where the men stopped and did the shooting was where I saw the corpse of Price Jett. When the shooting stopped the men walked back to the mountain; Lee Jett’s body was lying near the gate; I noticed a bullet wound in his forehead and one in the back of his head; the body of Price Jett was about forty rods from the gate; I was a member of the coroner’s jury.”

J. J. Birdwell made a statement to the jury and said the first shot came from the brush.

Mary Bolles testified:

“I was in the house when I heard the shooting: I stepped out and saw a man on a horse running north and saw two men shooting; they were afoot and a man was running ahead of them and I saw him fall; they ran up close and kept firing their guns towards the ground about where the man fell.”

Thad Coon, sheriff of Pittsburg county, testified:

“I was called and made an examination of the ground; there was a pool of blood fifteen steps north of the gate; two hundred and nineteen steps north, another pool; two hundred and thirty one steps north from the gate another pool. It was a wire gate with a loop at the bottom and one at the top for fastening and it was fastened in three places between with barb wire twisted around the posts two or three times, a bullet had entered close to the top of the post on the east side; it looked like it came from the southwest; another from the mountain in line with the big tree had cut a wire. I picked up several 3& shells near a log in the brush south of the gate; I found some shells close to the big tree and found others on the east side of the lane near the big pool of blood; I found where a horse had been tied; looked like he had stood there for an hour or two; and found a horse’s tracks in the timber about two hundred yards from the gate. ’ ’

Mark Harkins testified:

“I was constable at Blocker; saw Otto Collins and J. J. Birdwell talking in front of'the post office about four o’clock; the next morning Birdwell came dashing up on his horse and says, 'Get your horse, there is a man killed over yonder’. I asked who did it, and he said. ‘I don’t know, somebody shot from the brush and the bullets whizzed right by my head. ’ With several others I went out there in a ear; we found the body of the boy; looked like he had fell and crawled along; then we found the body of Lee Jett near the gate; I picked up two high power shells near the big tree fifteen steps south of the gate; I picked up four southwest of the gate and three along the fence close to where the body of the boy was; I also picked up some more shells along the fence on the west side of the lane.”

Ann Jett testified:

“lam the widow of Lee Jett, and the mother of Price Jett, he was about twenty-two years old when he was killed; on Saturday me and my husband went to Crowder, and on our return, about six o’clock, found J. J. Birdwell at our place talking to the children.”

Against the defendant’s objections she further testified:

“We met right near the gate and he said, ‘Mr. Jett, where is your keg of Choc?’ My husband said, ‘ I don’t use any Choc,’ and sorter laughed. He said, ‘Mr. Jett, if I knew yesterday when you spoke to me where your heifer was, I would hove told you, but I. didn’t know until today. I came out of my coal bank and saw your heifer; she was branded “Bar L Bar”; I got my mare and came straight here; you come and go with me tomorrow and we will get the heifer.’ My husband says, ‘It is according to which way she is whether I will go with you or not.’ Birdwell said, ‘It ain’t toward your enemies, she is not that way; they keep her thrown back across the mountain’. He says, ‘You come, I never betrayed a man and got him killed in my life’. Then I ■said, ‘I ain’t willing for my old man to go up there after the heifer. I will give you five dollars if you will bring him to me’. Birdwell said, ‘ I won’t bring the heifer unless Mr. Jett goes with me.’ I says, ‘I will give you as much as ten dollars if you bring the heifer to me’; and Birdwell says, ‘ I never betrayed a man and got him killed in my life,’ and said, ‘Mr. Jett, come in the morning and go with me after the heifer.’ He said that as much as three times. He said he lived the first or second house yon side of Mark Harkins. Nary a one of us knew who he was, but we thought he was a Kentucky man. The next morning my husband and son left on horseback. I insisted that my husband carry his gun; he put it in his coat and tied the coat to the horn of the saddle, and I said, ‘You can’t get that gun out of there if you need it.’ ”

Annie Jett testified:

“I am the widow of Price Jett; I heard the conversation between Mr. and Mrs. Lee Jett and J. J. Birdwell; they were on the road and I was in the lot, just the fence between us. ’ ’

Against the defendant’s objections she further testified:

"My husband had lost a heifer branded ‘Bar L Bar’ on the left side. Mr. Birdwell said, ‘If he had known where the heifer was yesterday when Mr. Jett spoke to him, he would have told him, but he did not known until today, that he came out of his coal mine and saw the heifer and came right straight here.’ He asked Mr. Jett to go with him to get the heifer. Mr. Jett said, ‘It is according to where she is.’ Mr. Birdwell said it was not towards any of his enemies, it was back the other way. Mrs. Jett said she would give him five dollars to bring the heifer to her; he said he would not unless Mr. Jett would come with him; he several times said that he had never betrayed a man and got him killed in his life. My husband was not present. The next morning, about six or seven o’clock, Mr. Lee Jett and my husband left on horseback to get the heifer.”

Idas Willingham testified:

"The Interstate Coal Company has a mine two and a half or three miles east of Blocker; I am the manager; the mine is about a mile east of where the killing occurred; J. J. Birdwell worked in the mine; Thursday night before the killing the air shaft burned out and all the men were laid off Friday and Saturday except Mr. Kirkland; I didn’t see J. J. Birdwell there at any time Friday or Saturday.”

Otto Collins, eodefendant, testified:

"I live about four miles southwest of Blocker near Tom’ Goodman, my father-in-law; the day before this killing I had a talk with J. J. Birdwell in Blocker and said something to him about swapping a horse and saddle for his buggy; he said he would not trade; I did not make any deal with Birdwell to get the Jetts over into that lane; on Friday, Tom Goodman told me to ride the mountain and gather his cattle; Saturday morning Ben Smith agreed to ride out the pasture with me; Holy Roller meetings were held in an arbor about a mile from my place; I went one night, Friday night; J. J. Birdwell was there; I just spoke to him; about eight o’clock Sunday morning Í saddled my horse, Ben Smith got ready the same time; I took a Winchester and an automatic; I had heard of threats by the Jetts, and the way they had done my brother I knew if I ever met them they would kill me, or I would have to kill them. We worked the mountain a couple of hours; found three head in an old pasture, and found some back from the end of the lane, and found five more upon the mountain and drove them to the end of the lane and instead of turning into the lane they drifted on east; Ben started to head them off; I saw there was a gate and I rode down to see if it was fastened up solid; 1 must have been 75 feet from the gate when I first saw the Jetts; Price Jett was standing at the gate; old man Jett was on his horse; he commenced shooting; I jumped off of my horse and jerked my Winchester off and began shooting; Ben hadn’t commenced shooting right then, but he did just instantly after the shooting began; Price Jett was shooting; I emptied my Winchester; old man Jett fell off his horse and fired one shot after he fell; I shot at him once or twice after he hit the ground; Price Jett, after he fired one or two shots, started to run; he ran forty or fifty yards and whirled and shot back; I got over into the lane and ran up pretty close to him and he throwed his gun up, but did not shoot. I was excited and I can’t tell how many shots were fired.”

Codefendant, J. J. Birdwell, testified:

“I work in a coal mine southeast of Blocker; Thursday night before the 25th, the air shaft burned out; I went out there Friday morning, to go to work, and they told me about it and laid me off; I went back Saturday morning; just drove over there and back; the mine boss told me to come back Sunday morning and he would let me know whether to go to work Monday or not; Mr. Jett had described the heifer he lost and after leaving the mine I saw this heifer; that afternoon I had a conversation with Otto Collins; he asked me how I would swap my mare and buggy for his horse and saddle, we went on up to the post office and talked a word or two about swapping ; I told him we could not swap and I. went home; I told my wife I would go up to Mr. Jett’s and tell him about the heifer and get the five dollars reward; I drove west something like four miles to the Jett'place; his little girl was on the porch and I asked her where her papa was; she said he is coming yonder from Crowder; Mr. Jett and his wife drove up to the gate; I asked Mm if he had found that heifer he was hunting for; he said ‘no’; I told him I thought I saw her and if he would come down I would go and show her to him; he said he would be down in the morning and I drove back home; my little boy and Mr. Crosby’s took the mare and buggy and went to the Holy Roller meeting that evening; me and my wife-walked over to Mr. Bigg’s; I was not at the Holy Roller meeting that Saturday night; the next morning the Jetts rode to-Blocker and asked me to go with them to look up that heifer; I saddled my mare and went on with them; as we got to the mouth of the little lane turning south we saw some cattle over-near the south end of the lane; Jett said we would go down and look at them and come back and go to the mine, or we could go on across the mountain; Price Jett got down and opened the gate and we went on through to the south end of the lane; Price Jett got down to open the gate and said he didn’t believe we could get through there; I told him we would go through; he said something I didn’t understand and pulled a gun out of his pocket and fired; my pony whirled and made two or three jumps; I looked back and saw Lee Jett falling off his horse; I whipped my mare from there to the north end of the lane.”

Appellant, Ben Smith, testified:

“I am 35 years old; I have lived practically all my life-around Blocker; I left Otto Collins’ place with him that morning to round up some cattle for Mr.G-oodman; we found three-head of his cattle and turned them up the mountain; we found five head of his cattle up there and put them together; then-drove them on east until we came to that lane; we were going; to drive them through the lane and found it fenced up; the-cattle passed by and went east; and we rode back on the-mountain to look for a steer that we thought had dropped out,, the first I knew that there was anyone in the lane was when a pistol popped; I jumped off my horse; Price Jett and old man Jett were shooting at me, and I was shooting too with a 38 Colts; I fired five shots and reloaded and started shooting again; while I was reloading Price Jett wheeled and shot at me; he was 40 or 50 yards up the lane then; as I went along the east side of the fence I knocked the empty shells out of; my gun; I found my horse 60 or 70 yards south of the gate, his reins were tangled over a bush.”

The testimony in this ease is very voluminous, covering 1,700 pages, but the foregoing statement is sufficient to present the questions raised.

Counsel for appellant in their brief say:

‘ ‘ The verdict of the jury in this case can only be accounted for by reason of passion and prejudice on their part, which in our judgment grew out of the court admitting the testimony of Aun Jett, wife of Lee Jett, and Annie Jett, the wife of Price Jett, in which the state was endeavoring to show that a conspiracy existed between Birdwell, Smith and Collins to kill the Jetts, and the effect of the testimony as to what Birdwell said to the Jetts the Saturday evening before, in the absence of this defendant, and where there had been no foundation laid at the time the testimony was introduced and nothing that followed their testimony that showed or tended to show a conspiracy, was of course fajal to the defendant. ’ ’

The testimony objected to was admitted by the court under the theor-y of the state that the defendants on trial had conspired with their codefendant, J. J. Birdwell, to commit the crime charged. We think no error was committed in admitting the testimony of the witnesses, Ann and Annie Jett. It is true this evidence was admissible against appellant only upon the theory that all the defendants had conspired together to do an unlawful act. Conspiracies are often difficult to prove by direct testimony, and rarely can any express understanding or agreement be shown. Their existence is more often shown as in this case by the proof of circumstances, the concurrence of which leads one to believe that the parties were acting in concert with a common purpose to do an unlawful act. Large latitude is allowed necessarily in proof of a conspiracy, and the jury should be permitted to have before them all the facts which will enable them to come to a correct conclusion. The rule in such cases is well defined, and has been announced in a number of the decisions of this court. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Irvin v. State, 11 Okla. Cr. 305, 146 Pac. 463.

In the last cited case this court held:

“Where there is testimony tending to show community of design between two or more persons to commit a crime, the-acts and declarations of one of them done and made in furtherance of the common design are admissible in evidence in a. prosecution against another of the conspirators for murder* committed in pursuance and in furtherance of the conspiracy, and this is the rule though such acts and declaration were not done and made in the presence of the defendant on trial. ’ ’

In the opinion it is said:

“A conspiracy can seldom be established by direct and positive evidence. It is, from the nature of the ease, only evidence of circumstances tending to show conspiracy which ordinarily can be adduced. If there is testimony tending to show that the defendants pursued by their acts the same unlawful object, one performing one part and another another part of' the same so as to complete it, with a view to the attainment of the same object, a sufficient and proper foundation has been laid for the admission of the acts and declarations of other* conspirators made and done while the conspiracy was continuing in furtherance of the common design.”

Says Wharton:

“Where a conspiracy is shown to exist, which is- usually inductively from circumstances, then the declarations of one conspirator in furtherance of the common design, as long as: the conspiracy continues, are admissible against his associates, though made in the absence of the latter. The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all.” (2 Wharton’s Law Ev. par. 1205.)
“Slight evidence of collusion is all that is required.” (2: Rice on Ev. 865, par. 333; 1 Greenleaf on Ey. (13th Ed. par, 111.)

From all the facts and circumstances in evidence in this case it is evident that appellant and his codefendants were acting in concert with a common purpose and intent in the commission of the crime charged.

Aside from the testimony of the defendants in support of the self-defense theory, the evidence and the physical facts conclusively show that the killing of Price Jett was an assassination. His body was found riddled with bullets; his chin was shot off; a bullet entered under the left eye; another over the right ear; another back of the right ear; six or seven entered his breast and two or three his back; he was also shot through the arms, and through both legs in several places and he had been shot at' least once or twice with a shotgun.

As we view it, the testimony is so conclusive as to the guilt of the defendants tried in this ease that nothing can be said in their defense.

The other assignments of error are not argued in the brief, and they are not sustained by the record. Upon consideration of the whole case we are satisfied that appellant had a fair and impartial trial. His guilt or justification was a question for the jury to determine and they have determined it against him upon evidence amply sufficient to justify their verdict. The judgment of the court below is therefore affirmed.

MATSON and BESSEY, JJ., concur.


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    J. O. GUY v. STATE.
    No. A-3759.
    Opinion Filed Sept. 12, 1921.
    (200 Pac. 552.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Conveyance — Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquor, evidence held sufficient to sustain the verdict and judgment of conviction.
    Appeal from County Court, Custer County; E. J. Lindley, Judge.
    J. 0. Guy was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    Darnell & Meacham, fo^1 plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, J. 0. Guy, and John Lemke, Tom Stubblefield, and Wm. Haggerty, Jr., were jointly charged with having conveyed two quarts of whisky from a place in Custer county unknown to the corner of Second street and Dunn avenue in the city of Clinton, and thence south to the city limits of Clinton. On his separate trial the plaintiff in error was convicted; the jury leaving the punishment to be fixed by the court. The judgment and sentence of the court was that he be confined for 30 days in the county jail and pay a fine of $50 and the costs. From the judgment he appeals on the ground that the verdict is not sustained by the evidence and is contrary to law. No brief has been filed.

The record shows that the state relied for this conviction upon the testimony of two witnesses.

John Lemke, one of the defendants, as a witness for the state testified that he had known J. 0. Guy six years or more; that on the date alleged J. 0. Guy and Tom Stubblefield drove into the town of Bessey in an automobile; Guy asked him to get in the car and they drove on about a mile, then Guy opened a suitcase containing two or three bottles of whisky and said, “That’s what I got today.” “He gave me a drink and said, ‘Let’s go to Clinton’. About half way Guy stopped and we took another drink. We drove into Clinton and Guy took the whisky out of the suit case and put it under the hood of the engine; we went to a restaurant; Haggerty and a. fellow by the name of Hinkle were .there and Guy had an argument with them; after eating, all four of us went out to the' car; that was the last thing I recollect. ’ ’

Leona McGehee testified:

“I was living in Clinton on Third street; the car stopped at my place that night and Will Haggerty told me some parties in the car wanted to see me; I went out and Guy, Stubble-field, Lemke and some other fellow, I don’t know his name, were in the car; they said they had plenty to drink and they wanted me to go along with them; Guy gave Haggerty the bottle and he handed it to me; I took a drink and it was, passed around in the crowd; I got in the car and we went out south of town; they had a quart and a part of a quart of whis-ky ; I had the bottle and took a drink once in a while. ’ ’

There was no testimony offered on the part of the defense..

We see no reason to doubt that this conviction was fully warranted by the evidence, and,finding no error prejudicial, to the defendant, the judgment of the lower court is affirmed.

MATSON and BESSEY. JJ., concur.


text:
    Wm. HAGGERTY v. STATE.
    No. A-3758.
    Opinion Filed Sept. 12, 1921.
    (200 Pac. 553.)
    Appeal from County Court, Custer County; E. J. Lindley,.. Judge.
    Wm. Haggerty was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    A. E. Darnell, for plaintiff in error.

      The Attorney General and E. L. Pulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Wm. Haggerty, and J. 0. Guy, John Lemke, and Tom Stubblefield were jointly charged with having conveyed two quarts of whisky from a place in Custer county unknown to the corner of Second street and Dunn avenue in the city of Clinton; thence south to the city limits of Clinton. On his separate trial appellant was convicted and his punishment fixed at 30 days’ confinement in the county jail and a fine of $50. Prom the judgment entered on the verdict, he appeals.

This case is a companion case to that of J. 0. Guy, 19 Okla. Cr. 397, 200 Pac. 552, this day decided. The two witnesses for the state were the same, and their testimony in so far as it was competent and material was the same as in the Guy Case.

At the close of the state’s case appellant asked the court to direct a verdict of acquittal, which was refused.

As a witness in his own behalf appellant stated:

“I went out in that car with those fellows. They asked me to go for the purpose of taking a drink. Other than that I had nothing to do with it. I did not drive the car. They drove down to Leona MeGehee’s house. John Lemke asked me to get her. I just told her that Lemke wanted to see her. They then drove south of town, and all of us drank the whisky.”

After argument upon the motion for new trial closed, the court stated:

“As I remember the evidence, the defendant Guy had the automobile, either his own or a jitney, and he loaded it full of whisky and came to Clinton; on the way he picked up Lemke and Stubblefield; they initiated this offense; they took on Haggerty; he was in no way interested in the car; be didn’t drive it; they all drank while Haggerty was along. I am inclined to think that the appellate court would not holj^im as a party to transporting that liquor. There is a very 'fine distinction there, but it seems to me there is a distinction there between these men. I am inclined to sustain this motion for new trial as to Haggerty.”

After further argument the court said:

“Well, I will defer judgment on the motion until to-morrow if you want it, but that is the way I have it analyzed in my mind.”

The reversal of the judgment is asked on the ground that the court erred in refusing to advise the jury to return a verdict of acquittal, and that the evidence is insufficient to sustain the verdict.

Upon the undisputed facts in this case, it is clear that the conviction cannot be sustained. Upon the state’s theory its witnesses were accomplices, and there was no testimony tending to show that appellant had anything to do with transporting the whisky in question. Because the evidence is insufficient to sustain the verdict, the judgment of the lower court is reversed.


text:
    B. H. FARRELL v. STATE.
    No. A-3634.
    Opinion Filed March 19, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 462.)
    Appeal from County Court, Atoka County; J. M. Hum-phreys, Judge.
    B. H. Farrell was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    J. W. Clark, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Atoka county, wherein plaintiff in error, B. H. Farrell, hereinafter designated defendant, was convicted of tbáh*of-fense of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to serve 30 days’ imprisonment in the county jail, the minimum punishment prescribed by statute for such offense.

The evidence on the part of the state discloses the possession by defendant of nine quarts of “wild-cat“ or homemade whisky, buried in quart fruit jars in his garden, about 12 or 15 steps from his house; also one quart of the same kind of whisky was found in a trunk in the house; also about.40 gallons of what is called “wild-cat beer” or mash for making whisky was found in a barrel on defendant’s premises. Defendant was not at home when the officers made the search, but was found at the home of a neighbor about 300 yards distant immediately after the search was made.

Defendant was arrested, and was escorted back to his home by one of the persons making the arrest. On the way back to the house, defendant asked if they had found all the whisky, to which reply was made, “I guess so,” and defendant then asked, “Did you find some on the shelf in the kitchen?” to which reply was made, “No.” Defendant then said, “There should be a quart more up there,” and said, “Let’s go and get it,’’ and they went back and looked, and the whisky was gone. They then went into the garden, and defendant said, “Yes; they got it all.”

The foregoing is a concise statement of the material facts in the case, and defendant did not take the witness stand in his own behalf. He merely introduced three witnesses who testified that prior to that time defendant had borne a good reputation as a law-abiding citizen.

Contention is made that the court erred in giving certain instmetions which tended to place the burden of proof upon defendant, and the Attorney General has admitted in his brief that instructions given tended to that effect. This court has carefully examined the instructions, and while we find that the trial court, in stating the burden resting upon defendant to rebut the presumption of unlawful intent arising from the possession of more than one gallon of spirituous liquor and more than one cask of malt liquor on the home premises of defendant, probably stated the law too strongly in favor of the state, nevertheless, in view of the fact that no defense was interposed to the merits of this prosecution, and that the evidence, standing as it is uneontradi'cted, clearly establishes the guilt of this defendant, so that it is apparent that no miscarriage of justice resulted, or that defendant was deprived of any constitutional or statutory right, this court is not at liberty, under the express provisions of section 6005, Revised Laws 1910, to disturb or reverse the judgment because of the alleged misdirection of the jury. No honest, intelligent jury, under their oath, could have arrived at any other verdict, under the undisputed evidence in this case, than that of'guilt of this defendant.

For reasons stated, the judgment is affirmed.


text:
    J. H. COOK v. STATE.
    No. A-3588.
    Opinion Filed July 16, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 463.)
    Appeal from County Court, Garfield County; E. S. Swig-ert, Judge.
    J. H. Cook was convicted of violating the prohibitory liquor laws, and he appeals.
    Affirmed.
    George W. Buckner, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for. the State.
   PER CURIAM.

On the 18th day of April, 1919,'. in-tiff in error, hereinafter referred to as defendant, was convicted in the county court of Garfield county of the crime of unlawfully conveying intoxicating liquor, and punishment assessed at a fine of $100 and imprisonment in the county jail for a period of 60 days. From this judgment an appeal was taken to this court.

The undisputed evidence is that the defendant was apprehended while in the act of conveying on his person five pints of whisky from one point in the city of Enid to another place therein. Defendant interposed as a defense that this particular whisky was purchased in Joplin, Mo., by a friend of defendant named Jason Veatch, whom defendant met in Enid about the 23d day of December, 1918, and whom defendant gave $10 and requested Veatch to purchase for defendant a gallon of whisky in Joplin, Mo., and bring it to him upon his return to Oklahoma; Veatch having previously stated to defendant that he expected to go to Joplin and return in about 10 days or 2 weeks. Defendant testified that in about that length of time Veatch brought to him in Enid a gallon of whisky, and delivered it to him at the old bottling works on East Broadway in said city, and defendant opened the package, took five pints from it, put it on his person, and was taking it to his home at the time he was arrested.

It is contended that this evidence is insufficient to sustain the conviction.

That liquor being conveyed within this state is a lawful purchase is a matter to be pleaded and proved by defendant. De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; Schave v. State, 4 Okla. Cr. 285, 111 Pac. 962; Jacobs v. State, 4 Okla. Cr. 471, 113 Pac. 211.

Under the evidence in this case the liquor that defendant purchased, if it be admitted that the purchase was made under the circumstances testified to by defendant himself, was obtained at an unlawful sale made by Yeatch to defendant in the city of Enid, Garfield county, and defendant is guilty of an unlawful conveyance under his own testimony. There is no competent evidence in this record that the whisky which defendant was conveying was purchased outside the state of Oklahoma and constituted a lawful purchase.

Defendant being guilty upon his own admission, the alleged errors urged as grounds for reversal of the judgment are wholly without merit.

Judgment affirmed.


text:
    L. B. HART v. STATE.
    No. A-3622.
    Opinion Filed May 12, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 551.)
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    L. B. Hart was convicted of violating the prohibitory laws of this state, and he appeals.
    Affirmed.
    J. E. Burns, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

L. B. Hart, plaintiff in error, was, on the 19th day of May, 1919, in the county court of Kay county, convicted of having had in his possession on February 9, 1917,. certain intoxicating liquor, with the unlawful intent of disposing thereof, and his punishment was fixed at 120 days in jail and a fine of $100.

To reverse this judgment and sentence, he appeals.

The points urged in this ease are fully covered by the questions just decided by this court in the case of Lappy v. State, 19 Okla. Cr. 434, 200 Pac. 550; and for the reasons there stated, applicable to this case, the judgment below is affirmed.