author: JONES, P. ,J.

text:
    BILL TILLMAN v. STATE.
    No. A-10584.
    May 8, 1946.
    (169 P. 2d 223.)

      J. M. Springer, of Stillwater, for plaintiff in error.

      Ran dell S. Cobb, Atty. Gen., and Sam H. Lattimore. Asst. Atty. Gen., for defendant in error.
   JONES, P. ,J.

The defendant Bill Tillman was charged in the district court of Logan county with the larceny of an automobile, was tried, convicted, and sentenced to serve sis years in the State Penitentiary and has appealed.

It is contended that the evidence is insufficient to support the verdict, in that there was no sufficient corroboration of the testimony of the accomplice, Bobby Scarborough.

Bobby Scarborough, the alleged accomplice of defendant, testified on behalf of the state that at the time of the theft of the automobile in question on August 2, 1943, he was 15 years of age; that he lived in Stillwater, Okla.; that on the afternoon of August 2, 1943, he met the defendant Bill Tillman and Floyd Madison in front of the Cameron Theater in Stillwater. That they got to talking about girls, and the three of them decided to go to Guthrie; that they went from Stillwater to Guthrie on the bus, arriving about 8 o’clock; that they walked around over the city of Guthrie quite a while, and then went into a cafe where they drank a cup of coffee; that after they had finished the coffee, they started out walking again and as they passed the Patterson Garage, they decided to break into the garage; that they opened a window and he and Floyd Madison went into the building while the defendant Bill Tillman stood watch out in front; that Floyd Madison drove out an Oldsmobile automobile which they got in and started driving, but they saw that it was nearly out of gas, so they parked it and went back to the garage; that the witness and Bill Tillman remained on the outside while Floyd Madison went in and drove out a black Buick coupe automobile, Avhicli Avas the automobile the defendant was charged Avith stealing. The three boys then got into the automobile and started driving south out of Guthrie. They made a short stop in Edmond, and then drove on to Norman. They arrived at Norman shortly after midnight. They parked their car on the highway near the Monterrey Cafe at Norman; they went to the cafe and defendant Bill Tillman unfastened the screen, opened a window and entered the cafe. That all three of the boys went into the cafe and got some fried chicken that was lying on a tray, and some nickels and dimes that were in a nickelodeon. They put the money in a little tin box. They also stole about 100 packages of cigarettes and a typewriter at the cafe. The defendant Tillman took out the typeAvriter. They put the stolen articles in the automobile and started driving south. The witness had formerly been an inmate of the boys reformatory at Pauls Valley, and they stopped the car at Pauls Valley while the defendant visited with some of his former friends at the reformatory. That they later proceeded on south, stopping at Turner Falls where they laid down and slept about an hour. Later they drove on to Ardmore, where the defendant Tillman took the typewriter and sold it at a second-hand store for $4 and divided the money among all three of them.

Subsequently, Floyd Madison took the automobile, drove to a filling station, had it filled with gasoline and left the station without paying for the gas. The three boys started on the road north, driving from 70 to 80 miles per hour. When they slowed down near the city of Pauls Valley, they noticed a highway patrol car following them. They turned into a dead-end street in Pauls Valley and were trapped by the highway patrolmen. The boys were searched and taken to the Pauls Valley jail. Scarborough further testified that they had not decided what to do with the car at the time they were arrested, but were on their way to Tecumseh to see some girls. At the time the boys were arrested they had some cigarettes of various brands, with several nickels and dimes laying on the floor of the car with an old sack of money containing small change which fell out of the car when Madison stopped the car and started to run when it was trapped in the dead-end street.

To corroborate the testimony of the accomplice, the state showed by other witnesses that the automobile had been taken without the knowledge or consent of the owner. The testimony of the officers showed that the defendant and his two companions were in the possession of the stolen automobile at the time they were arrested. In the car, according to the testimony of the officers, were several packages of cigarettes of different brands and the nickels and dimes, which, according to the testimony of the accomplice, were stolen from the Monterrey Cafe at Norman. The proof also showed that the defendant sold the stolen typewriter for $4 in the city of Ardmore and the defendant, while testifying in his own behalf, admitted selling this typewriter.

The well-settled rule in Oklahoma is that it is not essential that corroborating evidence shall cover every material point testified to by accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or circumstances thereof. Scott v. State, 72 Okla. Cr. 305, 115 P.2d 763; Crain v. State, 70 Okla. Cr. 45, 104 P.2d 450, 451; Wilkins v. State, 70 Okla. Cr. 1, 104 P.2d 289; Henson v. State, 69 Okla. Cr. 273, 101 P.2d 1060; Hathcoat v. State, 71 Okla. Cr. 5, 107 P.2d 825; Howard v. State, 70 Okla. Cr. 165, 105 P.2d 440; Robinson v. State, 67 Okla. Cr. 8, 92 P.2d 1082; Hufford v. State, 61 Okla. Cr. 141, 66 P.2d 529; Drew v. State, 61 Okla. Cr. 48, 49, 65 P.2d 549.

In applying this test, we find sufficient circumstances testified to by disinterested witnesses to corroborate some of the principal points of testimony of the accomplice Scarborough. The apprehension of the three boys in the stolen automobile, the selling of the stolen typewriter by the defendant, the possession of the stolen cigarettes and money taken from the. Monterrey Cafe and other circumstances were sufficient to require the court to submit the question of the guilt or innocence of the accused to a jury.

It is next contended that the court committed error in allowing the state to prove distinct separate offenses other than the one for which the defendant was being tried. This proposition is directed mainly at the admission of the evidence of the burglary of the Monterrey Cafe at Norman.

This contention may not be sustained for two reasons. The testimony concerning the burglary was by the witness Bobby Scarborough. At the time this evidence was given, no objection was interposed by counsel for defendant. Also the alleged burglary at Norman was so closely connected with the stealing of the automobile and the subsequent flight of the accused and his companions that it is not such a separate offense that the proof of the same would be incompetent. The proof showed that the automobile bad been stolen. It was during the flight with the stolen automobile that the burglary was committed and the articles stolen in the burglary were transported in the automobile and some of them were in the automobile at the time it was recovered.

The general rule is that evidence of other offenses, though of the same nature, are inadmissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are Avell-settled exceptions, among them being that evidence of an offense other than the one charged is admissible when both offenses are so closely related and connected as to . form a part of the res gestae. Boyer v. State, 68 Okla. Cr. 220, 97 P.2d 779; Michelin v. State, 66 Okla. Cr. 241, 90 P.2d 1081. In State v. Halpin, 16 S.D. 170, 91 N.W. 605, it was held that in connection with the evidence that on the night of the larceny of wheat, defendant borrowed a wagon for hauling grain, and after-wards returned it with pieces broken off, and a new singletree on it; that the tracks of a wagon in which the grain was taken were followed to a place where it got stuck, and there were found the pieces broken from the borrowed wagon; evidence that from a farm near there a horse, singletree, and shovel were stolen that night, the horse being afterward sold by defendant is admissible as part of the res gestae.

In this case the only issue raised by the defendant was that he and his associates did not intend to steal the automobile, but that they intended to return it to the owner. It certainly became competent for the state to trace all the actions of the accused and his associates during their asportation of the stolen property for the purpose of showing whether their actions were such as to indicate a purpose to permanently deprive the owner of his property.

21 O.S.1941 § 1787 provides:

“From and after the passage of this Act, it shall be unlawful for any person or persons to loiter in or upon any automobile or motor vehicle, or to deface or injure such automobile or motor vehicle, or to ‘molest, drive, or attempt to drive any automobile, for joy riding or any other purpose, or’ to manipulate or meddle with any machinery or appliances thereof without the consent of the owner of such automobile or motor vehicle.”

Counsel for defendant prepared a requested instruction based on this statute and asked that it be given. In his brief, counsel states that the offense set forth in the above statute is an included offense and should be given when any person is charged with stealing an automobile in violation of the statute. 21 O.S.1941 § 1720.

While the defendant is entitled as a matter of law to have his theory of defense clearly set forth in an instruction, we do not think that the statute hereinabove quoted defines an offense which is necessarily included in the charge of stealing an automobile. We do think that where the sole defense is that the accused took the automobile for a joy ride and not to permanently deprive the owner thereof, such issue should be submitted to the jury by a proper instruction.

In this case, the trial court, in three different instructions told the jury that the state must prove beyond a reasonable doubt that the defendant took the automobile without the knowledge or consent of the owner and with intent to permanently deprive the owner thereof. In addition to this general statement, the court gave instruction No. 5, which reads:

“You are instructed that larceny is the taking of personal property, accomplished by fraud or stealth and with the intent to deprive another thereof. Yon are instructed that in order to constitute the offense of larceny there must be the intent to permanently deprive the owner of the property and to convert the same to the takers own use and benefit.”

Counsel also attacked instruction No. 7 and instruction No. 8 given by the court. Instruction No. 7 properly stated the law relative to the necessity of having testimony to corroborate the evidence of an accomplice before the accused could be convicted. This instruction has heretofore been approved by the court. Hendrix v. State, 22 Okla. Cr. 230, 210 P. 734; Wishard v. State, 5 Okla. Cr. 610, 115 P. 796.

Instruction No. 8 is a correct statement of the law as to the admission of the evidence of other offenses. Such instruction followed the opinions of this court wherein it is held that where evidence indicating the commission of another offense is properly admitted, the court should instruct the jury the purpose for which it is admitted and limit them in its consideration of such evidence to that purpose. Smith v. State, 78 Okla. Cr. 375, 148 P.2d 994; State v. Rule, 11 Okla. Cr. 237, 144 P. 807.

After a careful consideration of all' the instructions taken together, we think they fairly and correctly presented all issues raised by the evidence.

Counsel complains of the admission of the testimony of the witness Harvey McCutcheon which was given on rebuttal. Although counsel for defendant asserted in their brief that this evidence was clearly inadmissible, it is not shown in just what way it was inadmissible, nor does counsel cite any legal authority to sustain his assertion.

While the defendant was on the witness stand, the county attorney asked him on cross-examination whether he had sent a message to Bobby Scarborough by the witness McCutcheon. The defendant specifically denied that he sent such a message and further denied that he even knew McCutcheon. In rebuttal, the witness McCutcheon testified that he was confined in the Logan county jail temporarily while awaiting trial on a charge that he was a delinquent, that he was adjudged to be a delinquent child and ordered transported to the state training school at Pauls Valley where the accomplice, Bobby Scarborough, had been sent. Prior to the time Scarborough had been sent to Pauls Valley, he had testified at the preliminary examination against the accused. Mc-Cutcheon testified that when the defendant Tillman learned that he (McCutcheon) was being sent to Pauls Valley, defendant told him to see Bobby Scarborough and have him change his testimony because Scarborough’s time could not be extended and that if he could change his testimony Tillman “might get out of it.”

The predicate having properly been laid for the admission of this testimony, we think it was admissible for the purpose of showing an act or statement against interest made by the defendant.

Counsel for defendant showed by cross-examination of the witness Scarborough that there were some discrepancies in the testimony given by the witness at the trial from that given by him at the preliminary examination. This was a matter which the jury could consider as affecting the credibility of the witness, but the discrepancies were not so serious as would justify this court in stating that the testimony given by the witness Scarborough at the trial was false, as is urged by counsel for defendant.

There is ample evidence in the record to support the verdict and we find no substantial errors of law which require a reversal of the judgment of conviction. The judgment and sentence of the district court of Logan county is therefore affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    TROY SHIEW v. STATE.
    No. A-10524.
    May 8, 1946.
    (169 P. 2d 213.)
    I. L. Cook, of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. H. Parker, County Atty., Atoka County, of Atoka, for defendant in error.
   BAREFOOT, J.

Defendant, Troy Sbiew, was charged in the district court of Atoka county with the cime of larceny of livestock, to wit: one cow and one heifer; was tried, convicted and sentenced to serve a term of four years in the State Penitentiary, and has appealed.

At the time this case was set for oral argument counsel for defendant was present, and his only contention was that the judgment and sentence should be modified. No brief has been filed by the defendant, or by the state.

We have carefully examined the record. Defendant was charged in the information with the larceny of one black bald-faced cow about three years old, with horns, not marked or branded, and one red white-faced heifer with crop off each ear, and not branded, the property of Newton Baker, of Atoka county.

The heifer above described was not found or recovered. The cow was found in Muskogee county. They had been purchased by a Mr. Lester, from the stockyards in Muskogee.

One witness, Leonard Smith, testified that he saw the defendant near his home in Pittsburg county about the 20th of April, 1943, (the date the cattle were alleged to have been stolen) and that he was driving a truck in Avhich he had three head of cattle. The description of these cattle was the same as those of Mr. Baker and of another party who had lost a cow at the same time, and identified at the time the cow of Mr. Baker was found in Muskogee county. Mr. John Brown testified that he was in the commission business in Muskogee. That during the spring of 1943 he sold the three head of cattle above described for the defendant in the stockyards at Muskogee. He identified the defendant as the party who had the cattle, and that he gave him the assumed name of “Roy Payne”, and it was under this name that the cattle were sold. The duplicate copy of the sales slip was introduced in evidence, and it showed that two head of the cattle were sold to Mr. Lester, and the other to a Mr. Bailey. Also introduced in evidence was the check to Roy Payne for $174.26, in payment for the cattle.

No evidence was presented by the defendant, and he did not testify in his own behalf.

A motion for continuance was made by the defendant, but the same was overruled by the court.

Prom the above statement, we find that this court would not be justified in modifying the judgment and sentence entered in this case. Defendant was tried before a jury, and the jury assessed the punishment.

Finding no error in the record, the judgment of the district court of Atoka county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    DELBERT FENIMORE v. STATE.
    No. A-10576.
    May 15, 1946.
    (169 P. 2d 214.)

      E. B. Anderson, of Waurika, and Jerome Sullivan, of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Delbert Fenimore, was jointly charged with one Ralph McCollum by information filed in the district court of Jefferson county with the crime of rape in the first degree; a severance was granted; the defendant Fenimore was tried, convicted and sentenced to serve 15 years in the State Penitentiary, and has appealed.

Counsel for defendant has filed a voluminous brief presenting a large number of assignments of error. We have carefully considered all these various assignments of error and find that two of them must be sustained and the case reversed and remanded to the district court of Jefferson county for a new trial.

We shall only recite a brief summary of the evidence in order to properly consider the assignments of error. LaVerne Bowen, the prosecutrix, was 14 years of age July 28,1943. At the time of the alleged crime on Saturday night, February 20, 1944, she weighed 135 pounds and worked as a waitress at Littrell’s Cafe in the town of Comanche. After she had completed her work at the cafe about 10 p. m., she went to the Saturday night preview with Ralph McCollum, a codefendant, who was 17 years of age.

The defendant, Delbert Fenimore, was 19 years of age. He weighed about 120 pounds and had a withered right arm caused by an attack of infantile paralysis when he was an infant.

The prosecutrix testified, that when she and Ralph McCollum came out of the picture show, Ralph said he would take her home and they went to the McCollum car; that after they arrived at the car Ralph’s older brother, R. O. McCollum, and the defendant came to the automobile; that Ralph McCollum got on the right side of the front seat, she got in the middle and defendant drove the car at Ralph McCollum’s request. That she thought they were taking her home, but instead they turned on Highway 81 and drove about one mile south where defendant stopped the car about five feet off the pavement and defendant and R. O. McCollum got out of the car and went west in the darkness; that Ralph McCollum remained in the car and started making love to her; that defendant and R. O. McCollum came back to the car and defendant drove down the highway about five miles south of Comanche, at which time R. O. Mc-Collum stated that he wanted to turn the car around and return to Comanche; that it was a rainy night and the ground was slick; that R. O. McCollum drove the cai-to the left of the pavement where it was slick and made a remark that he did not think he could get off that slick place and that he had better drive into a pasture and turn around; that he drove across a cattle-guard into a pasture about one-half mile where he pretended to get stuck. That R. O. McCollum left to get a tractor to pull them out of the mud and defendant also got out of the car and went west; that while they were gone Ralph Mc-Collum kept on bothering her. That in about 30 minutes defendant and R. O. McCollum returned without a tractor; that Ralph McCollum then pushed her out of the car and took her off in the pasture about 15 or 20 yards; that Ralph McCollum took a coat with him and threw her down on it and accomplished the act of sexual intercourse there with her; that they remained out there about 20 minutes, at which time the defendant and R. O. McCollum came out to where they were; that Fenimore stayed out there and the two McCollum boys went back to the car. That Fenimore then wrestled with her and overcame her resistance and he also accomplished the act with her. That in about 15 minutes the other two boys came out and suggested that they go home; that they went back to the car, got out of the stuck place and drove on to Comanche. The prosecutrix told her older sister what had happened and the sister went to the hospital where her mother was working and brought her home.

The defendant denied having sexual intercourse with the prosecutrix and denied being alone with her at any time during that night.

Ralph McCollum testified on behalf of the defendant that he did have sexual intercourse with the prosecutrix with her consent, but denied that defendant ever was alone with her at any time and he testified that defendant did not have any sexual act with her at any time during that evening. A large number of witnesses also testified to the good reputation of the defendant.

It is contended that the trial court committed error in allowing the witness Elmer Zigler, sheriff of Comanche county, to detail the conversation had with the prosecutrix about two hours after the alleged attack occurred. The record discloses that the uncles of the prosecutrix were notified of the alleged attack by defendant and they called Sheriff Zigler at Duncan. The sheriff then drove to the town of Comanche, arriving there about 4:3Q a. m. It is evident that more than an hour elapsed since the time of the alleged assault and counsel for defendant contended that more than two hours had elapsed. The sheriff talked to the prosecutrix at her home in the presence of her relatives. The sheriff was allowed to detail, over the vigorous protest of counsel for defendant, the various things related to him in that conversation by the pros-ecutrix, including the details of the alleged attacks by Ralph McCollum and the defendant.

At the time objection was made, counsel for the state said:

“If this witness is permitted to testify, his testimony corroborates that girl’s testimony.”

We have recently had occasion to discuss the admissibility of evidence similar to that given by the sheriff. McGugan v. State, 82 Okla. Cr. 130, 167 P.2d 76; Coppage v. State, 76 Okla. Cr. 428, 137 P.2d 797.

In McGugan v. State, supra, the prosecuting witness had related the circumstances of the alleged offense to two policemen about 30 minutes after the offense was alleged to have been committed. In the syllabus of that case, the following rules of law were established:

“The term ‘res gestae’ is not subject to any exact definition which will fit all cases, but in a general way it may be defined as the circumstances, facts, and declarations that grow out of the main facts, and shed light upon it and tend to explain it and made at a time so near, either prior or subsequent to main act, as to exclude idea of deliberation or fabrication.”
“A fixed measure of time or distance from main occurrence cannot be established as a rule to determine what should be part of res gestae, but each case must necessarily depend upon its own circumstances to establish whether facts offered were a part of same continuous transaction.”
“Testimony of police officers in which they detailed statements made to them by prosecutrix concerning alleged crime of rape held too remote from time of main occurrence to be admitted in evidence as a part of the res gestae and the admission of such evidence constituted an abuse of discretion.”

In Coppage v. State, supra, this court held that the trial court committed error in allowing a witness to detail statements made to her by prosecutrix shortly after she had left an automobile in which the prosecutrix claimed she had been forcibly raped by defendant. In the body of the opinion Judge Barefoot reviewed at length tfye many authorities from this court and other jurisdictions.

The established rule seems to be that it is admissible to show by other witnesses that the prosecutrix made complaint shortly after the commission of the alleged offense, but the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony unless the statements are so closely related in point of time to the main occurrence as to be a part of the res gestae. Bouie v. State, 9 Okla. Cr. 345, 131 P. 953; Chastain v. State, 46 Okla. Cr. 123, 287 P. 826; Taylor v. State, 61 Okla. Cr. 110, 65 P.2d 1233; 44 Am. Jur. p. 953, sec. 84; Cook v. State, 27 Okla. Cr. 215, 226 P. 595; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Dodd v. State, 29 Okla. Cr. 311, 233 P. 503.

In Coppage v. State, supra, the time intervening between the alleged assault and the statements given by the prosecutrix to the witness Mrs.- Hagler was much shorter than the period of time which intervened in the time of the assault in the instant case and the statement given by the prosecutrix to the sheriff at her home in which the sheriff was permitted to repeat on the witness stand.

In Coppage v. State, supra, it is stated [76 Okla. Cr. 428, 137 P.2d 805]:

“The time intervening would give one an opiiortunity to make such statement by deliberation, and these statements would be almost impossible to refute. Under the law, that part of the evidence in which she reported to Mrs. Hagler of an assault made upon her was admissible. If Mrs. Hagler had seen her and had examined her, she could further testify to her personal appearance, as to whether or not there were any bruises on her person or body, or whether or not her clothes had been torn, and in what condition they were, but this is as far as the State could go. The permitting of Mrs. Hagler to testify in detail to the conversation which she had with the prosecutrix is clearly inadmissible. This conversation contained two statements that were very damaging to the defendant, and were no doubt strong factors in causing the jury to return a verdict of guilty. The statements were that the prosecutrix, Alma Floyd, told her that the party who assaulted her had false teeth and had lost them at the time of the assault, and the further statement that the prosecutrix had told her the license number of the car, and had told her that her clothes were ruined. These statements were made by the prosecutrix, not in the presence of the defendant, nor as a part of the res gestae, but were clearly hearsay, and if permitted to stand could by the jury be considered as corroborating her testimony.
“The general rule is that the evidence of a witness cannot be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath, and not in the presence of the defendant. These statements are excluded as hearsay. However, in rape cases there is an exception to this rule. The exception is that in this character of cases, the State may show by the testimony of other witnesses that the prosecutrix made complaint of the outrage soon after its commission. The reason for this exception is for the purpose of corroborating the prosecutrix when an attempt has been made to impeach her upon the question of the assault as testified to by her. It is also based upon the fact that if she does not immediately report the assault, this will be considered as evidence of the fact that she has not been assaulted, and thus discredit her. The decisions of the courts are practically unanimous that immediately following the commission of the offense, the fact that the prosecutrix made complaint of the assault is admissible, and the further fact as to the physical appearance of the prosecutrix and the condition of her clothing.”

The court likewise committed error in allowing'the prosecuting witness to detail conversation had with the witness Ralph McCollum out of the presence of the defendant. These statements were very damaging to the defendant, and, although the witness Ralph McCollum denied making such statements, their effect on the jury cannot be minimized.

This court has stated that where hearsay evidence has been received which reasonably contributed to the verdict of guilt, the reception of such evidence is ground for reversal. Peavler v. State, 47 Okla. Cr. 395, 288 P. 610; Robbins v. State, 39 Okla. Cr. 289, 264 P. 841; Hull v. State, 61 Okla. Cr. 12, 65 P.2d 423.

There are many other assignments of error, some of which have considerable merit, but it is unnecessary to here discuss them because they are questions which will not arise on another trial. For the foregoing reasons, the judgment of the district court of Jefferson county is reversed and the case is remanded for a new trial.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    V. P. McCANN v. STATE.
    No. A-10605.
    May 15, 1946.
    (169 P. 2d 219.)
    Rob’t R. Rittenliouse, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam BE. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, V. P. McCann, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: 18 pints of tax-paid liquor. His plea of not guilty was withdrawn, and he entered a plea of guilty in this and three other cases, in which the defendant vras charged with a like offense, on different dates, and different quantities of intoxicating liquor. He was by the court, upon his plea of guilty, sentenced in each of the four cases to pay a fine of $200, and to serve a term of 60 days in the county jail in each of said cases, the terms of imprisonment to run concurrently in each of said cases. From this judgment and sentence on his plea of guilty, he has appealed to this court by separate appeal in each of the four cases.

The defendant did not file a demurrer, or a motion to quash the information in the trial court. On appeal it is attempted to raise the question of the sufficiency of the information for the first time. In defendant’s brief, his position is stated in these words:

“The information filed herein charges the defendant with the possession of intoxicating liquors on a certain date in the informations. In each of the informations the name of the defendant is inserted and a description of the crime is set forth as ‘Illegal possession of Intoxicating liquor.’ The information bears the date upon which the state charges the defendant had the whisky, and sets forth the amount thereof. These informations charge that the illegal possession was in Oklahoma County, State of Oklahoma. The information does not charge the exact place where the defendant had possession of this liquor. The information does not charge the time of the day or night when the defendant had the possession of the intoxicating liquors.”

Defendant cites and' relies upon the following cases from the Federal Court: Skelly v. United States, 10 Cir., 37 F.2d 503, and Turk v. United States, 8 Cir., 20 F.2d 129; and the case of the United States v. Hess, 124 U. S. 483, 8 S.Ct. 571, 31 L.Ed. 516, by the Supreme Court of the United States. No cases from this court are cited by defendant.

The charging part of the information filed in this case was as follows:

“* * * that the above named V. P. McCann did, in Oklahoma Count, State of Oklahoma, on the 17th day of June, A. I). 1944, commit the crime of illegal possession of intoxicating liquor in manner and form as follows: For that he did then and there unlawfully, wilfully and wrongfully have the possession of a certain quantity of intoxicating liquor, to wit: Eighteen (18) pints of tax paid liquor.
“The said --- having the possession of said intoxicating liquor as aforesaid being then and there with unlawful, wilful and wrongful intent on the part of said defendant to unlawfully, wilfully and wrongfully barter, sell and give away and otherwise furnish the same to divers persons unknown, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

The Attorney General in his brief in this case uses the following language:

“Counsel for plaintiff in error, hereafter referred to as defendant, bases his claim to reversal entirely upon the alleged insufficiency of the information in the above cases. He admits that no demurrer was filed or any such question ever presented to the trial court. In fact, no defense at all was made. The record shows that when the defendant came on for trial on September 14, 1944, defendant withdrew his pleas of not guilty and entered pleas of guilty in the four cases. He was not sentenced until October 9th. No motion for new trial was filed but upon being sentenced defendant gave notice of appeal. The appeals were ready for filing in this court on December 15th, but defendant had previously obtained an extension of time to February 6, 1945, and delayed filing the appeals until February 5th. Then waits almost six months before filing any brief and now depends upon a contention which has been fully settled and adjudicated by this court to the contrary in many, many cases. In fact, counsel does not even attempt to cite any decision by this court.
“Among the opinions of this court approving the form of information used in the present cases are State v. Feeback, 3 Okla. Cr. 508, 117 P. 442; Childers v. State, 4 Okla. Cr. 237, 111 P. 958; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Waken v. State, 23 Okla. Cr. 78, 212 P. 450 [214 P. 1096]; Botts v. State, 29 Okla. Cr. 105. 232 P. 965; Thompson v. State, 26 Okla. Cr. 121, 222 P. 568, and Harvey v. State, 51 Okla. Cr. 164, 300 P. 434.
“In the Harvey Case, the form of information does not appear in the opinion, but an examination of the record shows the same form to have been used.
“In Radcliff v. State, 61 Okla. Cr. 294, 67 P.2d 809, this court approved the same form of information with reference to possession of a still.
“Counsel relies entirely upon certain federal court decisions. We are not particularly concerned with said decisions, as we would be able to cite federal cases to the contrary. One of them is that of Myers v. United States, 8 Cir., 15 F.2d 977, which contains a much more extensive review of authorities than the case upon which counsel relied. We note that an opinion cited in Skelly v. United States (the case upon which counsel apparently chiefly relies) is the dissenting opinion by Judge Booth in Myers v. United States, supra. To adopt the position taken by counsel in his brief would result in technical refinements of pleading finding no basis in either reason or justice.
“It is further interesting to note that in case No. A-10610 counsel based a plea of former jeopardy on behalf of this same defendant upon the same kind of information, which he now claims to be insufficient. If it was definite and certain enough to identify the offense as being the same act for which defendant had been convicted in police court, it is sufficiently definite and certain to meet the attack now made upon it.
“We find no merit whatever in these appeals, even if the defendant were entitled to present the question for the first time in this court. It further seems to us that this professional and habitual violator of the laws of this state has already received too much leniency and delay. It is now nearly eleven months since defendant entered his pleas of guilty. It is ten months since he was sentenced, which sentences the trial court provided should be served concurrently. We feel that these cases should be summarily disposed of by affirmance or dismissal of the appeals, and the defendant committed in service of the. sentences evidently so richly deserved.”

We are of the opinion that the brief above quoted is a full and complete answer to the contention of defendant in this case.

The judgment and sentence of the court of common pleas of Oklahoma county is therefore affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    VIRGIL McCANN v. STATE.
    No. A-10606.
    May 15, 1946.
    (169 P. 2d 221.)

      Rob’t R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Virgil McCann, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: 6 4/5 bottles of tax paid rum, 1 4/5 bottles- of tax paid Scotch liquor, 2 pints of tax paid gin, and 2 pints of tax paid rum. He was permitted to withdraw a plea of not guilty, previously entered, and to enter a plea of guilty. He was by the court sentenced to pay a fine of $200 and costs taxed at $28.50, and to serve a term of sixty days in the county jail of Oklahoma county. Prom this judgment and sentence he has appealed.

This is a companion case of McCann v. State, 82 Okla. Cr. 297, 169 P.2d 219, and the same assignment of error is presented in this case.

For the reasons there stated, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    VIRGIL McCANN v. STATE
    No. A-10607.
    May 15, 1946.
    (169 P. 2d 222.)
    Roh’t R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Yirgil McCann, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: “9/5th pint and thirteen (13) pints of liquor, all tax paid, and one pint of gin, in Oklahoma County.” He was permitted to withdraw- a plea of not guilty, previously entered, and to enter a plea of guilty. He was by the court sentenced to pay a fine of Two Hundred Dollars and costs taxed at $23.80, and to serve a term of sixty days in the county jail of Oklahoma County. From this judgment and sentence he has appealed.

This is a companion case of McCann v. State, 82 Okla. Cr. 297, 169 P.2d 219, and the same assignment of error is presented in this case.

For the reasons there stated, the judgment of the court of common pleas of Oklahoma County is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    VIRGIL McCANN v. STATE.
    No. A-10608.
    May 15, 1946.
    (169 P. 2d 222.)
    Rob’t R. Rittenhouse, of Oklahoma City, for plaintiff in error.

      Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Virgil McCann, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor in Oklahoma county, to wit: Ten pints of tax-paid liquor. He was permitted to withdraw a plea of not guilty, previously entered, and to enter a plea of guilty. He was by the court sentenced to pay a fine of $200 and costs taxed at $24.65, and to serve a term of 60 days in the county jail of Oklahoma county. From this judgment and sentence he has appealed.

This is a companion case of McCann v. State, 82 Okla. Cr. 297, 169 P.2d 219, and the same assignment of error is presented in this case.

For the reasons stated in the opinion in the case of McCann v. State, 82 Okla. Cr. 297, 169 P.2d 219, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES. P. J.

text:
    ALFRED CLARENCE BINGHAM v. STATE.
    No. A-10747.
    May 22, 1946.
    (169 P. 2d 311.)

      DOYLE, J., dissenting.

      Paul W. Gotcher and Geo. L. Hill, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lat-timore, Asst. Atty. Gen., for defendant in error.
   JONES. P. J.

This proceeding was instituted by the filing of a petition styled “Petition to Stay Execution” wherein the petitioner, Alfred Clarence Bingham, through his attorneys sought a stay of execution of the death sentence heretofore imposed on the petitioner by the district court of Tulsa county and affirmed by this court on appeal. Bingham v. State, 82 Okla. Cr. 5, 165 P.2d 646.

The petition recites that the petitioner has become insane since his incarceration in the State Penitentiary, that the warden of the State Penitentiary has heretofore suggested his insanity to the county attorney of Pitsburg county, and that pursuant to the statutes of Oklahoma a petition was filed with the district court of Pittsburg county asking the district court to impanel a jury to determine the question of his present sanity. The petition further alleges that a jury was impaneled in the district court of Pittsburg county and rendered their verdict finding the petitioner was sane.

The petition herein asks this court to allow an appeal from the verdict of the jury of Pittsburg county finding the defendant sane, or in the alternative, if we should find there was no legal authority for such an appeal, that ibis court stay the execution and hold a sanity hearing before the court to determine the question as to whether the defendant’s mental condition was such that the appellate court upon humanitarian grounds would stay the execution of the death penalty until the prisoner had been restored to his reason.

The petition was presented to the court just a few hours before the date set for the execution. This is the first time such procedure has been followed in Oklahoma, and because the questions raised were of such importance and the time pending before the execution of the petitioner was so short, this court asked the Governor to grant a 20-day stay of execution to give time for deliberation upon the legal questions presented by the petition and to hold an inquisition into his sanity if this court should assume jurisdiction of such inquiry.

Under the common law, an inquisition to determine the mental condition of a person convicted of crime and under sentence of death, but who, it was alleged, had become insane since rendition of judgment, was under the control of the trial court and that court alone decided when an inquisition was warranted. There was no provision for a jury trial and no appeal would lie from the finding of the court. 4 Blackstone’s Commentaries 395; Nobles v. State of Georgia, 168 U. S. 398, 18 S. Ct. 87, 42 L.Ed. 515; People v. Preston, 345 Ill. 11, 177 N. E. 761; Ex parte Chesser, 93 Fla. 291, 111 So. 720; People v. Eldred, 103 Colo. 334, 86 P.2d 248.

This common-law rule stemmed from the authority given in early English history to the sheriff or officer having the prisoner in custody under sentence of death to make an inquisition into his sanity where he had reason to believe that the prisoner had become insane since he had been placed in confinement. The sheriff had authority to call for such assistance as he might see fit to advise with him in the case. No appeal was contemplated and the inquiry was for the purpose of determining the one proposition as to whether the prisoner had become totally bereft of his senses so that he in no way understood why he was imprisoned or the punishment which was about to be meted out to him.

By statute in many states it is provided for an inquisition into the sanity of a person where the warden of the institution where the prisoner is confined has reason to believe that he has become insane since his incarceration. Oklahoma has such a statute, 22 O. S.1941 § 1005. The common-law rule is modified in Oklahoma to the extent that it conferred jurisdiction on the district or superior court of the county where the institution is situated where the prisoner is confined and provides for a mandatory trial by jury.

Our statute uses the term “insanity” but does not define the meaning of the term nor fix any test to be applied so we must look to the common law for a correct definition of the state of insanity which will prevent the execution of a condemned person.

Counsel attached to the petition a letter from Dr. F. M. Adams, for many years Superintendent of the Eastern Oklahoma Hospital for the Insane, in which Dr. Adams expresses the opinion that the petitioner is insane. It is well to state that there is a vast distinction between medical insanity as that term is generally used, which broadly speaking, means some form of mental distress or mental illness and legal insanity which will under broad humanitarian principles interfere to stay the execution of a death sentence. Under the common law the insanity that will preclude the execution means a state of general insanity, the mental powers being wholly obliterated, and a being in that deplorable condition can make no defense whatsoever and has no understanding of the nature of the punishment about to be imposed. Freeman v. People, 4 Denio N. Y., 9, 47 Am.Dec. 216; People v. Lawson, 178 Cal. 722, 174 P. 885; In Re Smith, 25 N. M. 48, 176 P. 819, 3 A.L.R. 83; People v. Preston, snpra; Bulger v. People, 61 Colo. 187, 156 P. 800.

In Ee Smith, supra, the Supreme Court of New Mexico stated the rule thus:

“The test of the question as to whether one about to be executed is sane or insane is whether or not such person, at the time of the examination, from the defects of his faculties, has sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court. If he has, then he is sane; otherwise he is insane, and should not be executed.”

This court is an instrument of government, and can exercise only such power as is invested in it. Whosoever exercises power in a constitutional government must do so in compliance with the prescribed rules. For a court to usurp poAver, notwithstanding it may be for the purpose of righting a supposed wrong, is no less reprehensible than the exercise of a physical force by a mob for a like supposed purpose. Constitutional government cannot exist Avhere either practice is the rule.

We only look to the common law in Oklahoma where procedure in matters of criminal nature are not provided for in the Code. 22 O.S.1941 § 9. HoAvever, the provision for an inquisition into the sanity of a person allegedly becoming insane after his incarceration is provided for as heretofore pointed out. This statute is substantially the same as the provision of the common law. There is no provision either under the common law or the statute for a review of the finding of the inquisitorial body. Counsel for the petitioner at the time the petition was filed conceded that no statutory authority existed for a review by this court of the findings of the jury in the district court of Pittsburg county on the question of the petitioner’s present insanity.

The investigation of the sanity of the prisoner is based upon the public will and sense of propriety rather than on a right of the prisoner. The latter is not entitled as a matter of law to a judicial investigation. Any investigation of the mental condition of the prisoner is for the sole purpose of determining whether it would be .consistent with public decency and propriety to take away the life of a person who was not sane enough to realize what was being done. Baughn v. State, 100 Ga. 554, 28 S. E. 68, 38 L. R. A. 577; Nobles v. State of Georgia, supra.

This court has stated in the case of Alexander v. State, 71 Okla. Cr. 47, 107 P.2d 811, 812:

“Since the judgment upon a collateral issue is not a final judgment from which an appeal or a writ of error will lie, an order or decision based upon an independent trial of the question as to defendant’s present sanity, either before trial, or after conviction, is not reviewable.” To the same effect see Murphy v. State, 72 Okla. Cr. 1, 112 P.2d 438.

Under the statute creating the Criminal Court of Appeals and giving it exclusive appellate jurisdiction in criminal cases, it was provided:

“Said court and judges thereof shall have the power to issue writs of habeas corpus; and under such regulations as may be prescribed by law, issue such writs as may be necessary to exercise its jurisdiction; and maj prescribe and promulgate such rules for the government of said court as it may deem necessary.” 20 O.S.1941 § 41.

This court is wholly without authority to issue any writ unless it is in aid of its appellate jurisdiction. If the question of insanity had been tried under the provisions of our Code and the petitioner had been found sane against the overwhelming preponderance of the testimony, and if every rule of evidence had been violated in the trial, no appeal would lie to this court; and if we have no appeallate jurisdiction, we have no authority to issue any writ of certiorari or in any manner review the action of the district court of Pittsburg county in such collateral proceeding.

The constitutional and statutory provisions creating the Criminal Court of Appeals of Oklahoma is patterned after similar provisions in the laws of Texas creating the Court of Criminal Appeals of Texas. The Court of Criminal Appeals of Texas has had this identical question presented to them for determination under a statute similar to ours, and it held that it was wholly without authority to review the findings of a tribunal finding a condemned man to be sane after his conviction and since his incarceration in the State Penitentiary awaiting execution. Ex parte Morris, 96 Tex. Cr.R. 256, 257 S. W. 894; Ex parte Quesada, 34 Tex. Cr.R. 116, 29 S. W. 473. In each of these cases, the Court of Criminal Appeals of Texas held that they were entirely without power to review the findings of sanity by appeal or by the issuance of a writ for a review by certiorari.

If the condemned has an absolute right of review, the absurd results that might follow therefrom are obvious. For, applying the language of the United States Supreme Court in Nobles v. State of Georgia, supra, a finding that insanity did not exist at one time would not be adjudged as to its nonexistence at another, it would be wholly at the will of the convict to suffer any punishment whatever; for the necessity of his doing so would depend solely upon his fecundity in making claim after claim of insanity, to be followed by trial upon trial, and review upon review.

“It is generally recognized that to permit convicted persons to arrest the execution of the sentence imposed upon them, by demanding as a legal right an inquisition into their mental condition, would be tantamount to granting them the privilege of thwarting the administration of criminal justice for an indefinite term.” 49 A. L. R. 804.

When a person has been adjudged sane under the provisions of our Code by a jury impaneled for such inquisition, the courts of Oklahoma are powerless to interfere with such verdict. The only recourse left to the condemned is through his friends or counsel presenting his plea to the Pardon and Parole Board and through them to the Governor for such relief as they might; see fit to give. The fact that the family history of the petitioner shows that many members of his family have been adjudged insane lends support to the contention that is presented that he is suffering from a mental illness. Counsel has stated that no application raising such question has ever been presented to the Pardon and Parole Board. We do not attempt to say here what should be done by counsel for petitioner or by the Pardon and Parole Board or by the Governor. By this opinion we are not attempting to influence the Pardon and Parole Board or the Governor in the exercising of their discretion, as they are the sole judges of the circumstances, including the alleged mental illness of the accused which may influence them to exercise clemency or enforce the execution of the death sentence.

Because of the foregoing reasons, the petition is hereby dismissed.

BAREFOOT, J., concurs. DOYLE, J., dissents.


text:
    Ex parte BERT MILLER.
    No. A-10708.
    May 22, 1946.
    (169 P. 2d 575.)
    Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Bert Miller, bas filed bis petition for writ of babeas corpus, seeking bis release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence of tbe district court of McGurtain county, entered on June 16, 1943, wherein be was sentenced to serve a life term of imprisonment for murder.

Petitioner was tried in the district court of Mc-Curtain county on May 24, 1943. He was represented by counsel appointed by the court on May 5, 1943. He was convicted by a jury on May 25, 1943, and filed a motion for a new trial, which was later withdrawn, and he was sentenced at the time and in the manner above stated. No appeal was taken by petitioner from the judgment and sentence pronounced against him.

This court has so many times announced the rule that the writ of habeas corpus can not be substituted for an appeal that it is unnecessary to cite the authorities so holding. It is only when the judgment and sentence is void that this court will give relief by habeas corpus.

It is urged by petitioner that the exhibits attached to his petition reveal that the district court of McCurtain county did not have jurisdiction, and that the judgment and sentence is therefore void. To sustain this contention, it is claimed that the information shows that it was not verified and that the.record does not reveal that a verified complaint was ever filed in the justice of the peace court, or that any copy of any complaint was ever filed in the district court prior to the filing of the information by the county attorney in the district court.

While these questions may not be presented by habeas corpus, where no appeal has been taken, we call attention to the case of Dan Landon v. State, 166 P.2d 781, in which this identical question is discussed in a case on appeal to this court and which was not here by habeas corpus. Many cases are there cited that are applicable to the question here raised. The third, fourth and fifth paragraphs of the syllabus in that case read:

“The right to have a preliminary examination is for the benefit of the accused and proper proceeding to raise question of failure to have preliminary examination is by a motion to quash or set aside the information before entering a plea to the information.
“Where defendant voluntarily enters a plea to the information and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination or that the criminal complaint filed before the justice of the peace was unverified or that it was verified by an incompetent witness.
“It is not required that informations charging the defendant with a felony in the District Court be verified, but they should be signed by the County Attorney. 22 O. S. 1941 § 303.”

The contention that petitioner is being restrained of his liberty contrary to the Fifth Amendment to the Constitution of the United States, and section 17, art. 2 of the State Constitution, cannot be sustained, after a consideration of the record.

For the reasons stated, the petition for habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    PETER MOORE v. STATE.
    No. A-10545.
    May 29, 1946.
    (169 P. 2d 575.)

      B. 0. Franklin, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty. Tulsa County, of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Peter Moore, was charged by indictment in the district court of Tulsa county with the crime of murder; was tried, convicted and sentenced to a term of life imprisonment in the State Penitentiary, and has appealed.

The first three assignments of error may be considered together. They are:

“1. That said verdict was contrary to the competent evidence in this case.
“2. That there was no evidence upon which to base the verdict of the jury.
“3. That said verdict was contrary to law and against the weight of the evidence.”

The charge against the defendant was the outgrowth of the killing of one Mack Cud jo, on the 7th day of November, 1943, at the home of the defendant. A number of persons had come to the home of defendant at different-times prior to the killing, which occurred between 7:00 and 7:30 in the evening. They were there for the purpose of gambling.

Defendant’s home consisted of three rooms, running parallel. The “front” or bedroom was on the south, the kitchen on the north, and the dining room, where the killing occurred, is referred to as “the middle room.” There was only one outside door, and it was in the south.

Present in the room at the time of the killing were the following persons: Joe Reynolds, W. D. Richardson, Leonard Leedy, Dan Jack Bennett, Pauline Robinson, Peter Moore and his wife Perline Moore. The first three of these testified for the state. Dan Jack Bennett testified for the defendant. The defendant, his wife Perline Moore, and Paulin Robinson did not testify.

There is quite a conflict in the evidence as to what happened just prior to the killing, at the time of the killing, and immediately following the same. However, as to some of the important details* there is no conflict. The deceased, Mack Cudjo, had been at defendant’s house for some time prior to the killing and before the arrival of the other witnesses. He had evidently become intoxicated, and was sitting on a divan, in the northeast corner of the middle room. A large round table, used for gambling, was in the center of the room. The witnesses Joe Reynolds and W. D. Richardson had come about 6:30 p. m., and the witness Dan Jack Bennett was there when they arrived. The state’s witnesses testified they had not engaged in gambling. The defendant’s witness, Dan Jack Bennett, testified that they had. Soon after the arrival of Reynolds and Richardson, a fight occurred between the wife of defendant and Leonard Leedy. She was the aggressor, as testified by the witnesses for the state. Defendant took the cloth from the table, and went into the adjoining bedroom and secured a pistol, and returned. There is some conflict in the testimony as to just what happened, but from all the testimony it is evident that the defendant hit the witness Leonard Leedy over the head with the pistol which he had in his hand. A shot was fired, either purposely or as a result of defendant hitting Leedy with the pistol. Defendant’s wife immediately exclaimed: “You done shot that man sitting over there.” The two state witnesses, Reynolds and Richardson, testified that defendant answered, “I ought to finish him up.” An examination revealed that Mack Cudjo had been hit in the head and was bleeding profusely. The state’s witnesses testified that at the order of defendant they, with Bennett, carried the body of the deceased from the house and placed it in the alley about 75 feet from the middle room. They returned to the house as directed by defendant, and remained until the officers arrived. The wife of defendant had been injured in the affair by the defendant, and she was taken to a doctor by the witness Bennett.

Police officers found the body of deceased in the alley and traced the blood to the house of defendant, and he told them that he had killed deceased accidentally. He was immediately arrested, as was also the witnesses Reynolds, Richardson and Bennett. Charges were preferred against them, and were pending at the time of the trial of this case. Mack Cud jo died soon after entering the hospital. No autopsy was held, but the physician who examined him testified that his death was caused as the result of a gunshot wound, and that in his opinion it had been inflicted about an hour prior to his death.

There was introduced in evidence by counsel for defendant a map or plat of the room in which the killing occurred, which was prepared at the request of counsel for defendant on the day following the killing. This map or plat is attached to the case-made. It is upon the facts revealed by this map as to the location of the parties and the fixtures in the room that it is contended that it would have been impossible for the shot from defendant’s gun to have killed the deceased, Mack Cudjo. It is unnecessary, and also impossible, for us to refer to the location of the parties as revealed by the testimony of the witnesses, and as indicated on the map. There is not only a conflict in the testimony, but also many statements made by the witnesses when referring to the map that make it impossible to determine the location. The jurors who were present and examined the map and heard the witnesses testify to the different locations, and point them out, were in a much better position to determine this question of fact than is this court.

It is the contention of defendant that the deceased was sitting on a divan in the northeast corner of the room, with his hat over his face, and that defendant was at the table in the center of the room, facing north, and that the witness Leedy whom defendant hit with the gun, and defendant’s wife, were to the northwest, and that it would have been physically impossible for the discharge from the pistol to have killed the deceased in the northeast corner of the room. This contention is based upon the assumption that the parties were located as above stated, but an examination of the record reveals that the witness Leedy testified that he was not as located by defendant, but that he ivas on the east side of the table, deceased was in the northeast corner of the room, and the defendant was to the south of him.

We further call attention to some of the questions and answers of the witnesses which show the impossibility of this court to pass upon or know the exact position of the parties:

The witness Leedy:

“Q. Show the jury what position you were in, when you were down on the floor, come down here where the jury can see you. A. I was down like this (indicating). Q. When the shot was fired, where were you — did you have your hat on? A. Yes, sir, my hat was on, and he said, 'Get up from there and get over in that chair,’ and I started to get up this way (indicating) and the gun went off. * * Q. On what side of this table were you standing, at the time Peter struck you? A. At the time he snatched the blanket off the table? Q. At the time he struck you, on what side of the table were you? A. I was on the east side of the table, going out the door south. Q. What is that? A. I was going out the door, facing south. And I was on the east side of the table. Q. You were not on the west side of the table? A. No, Sir.”

If the jury believed this testimony, then the deceased was in direct range of where the discharged bullet would have naturally gone at the time the pistol was fired. This was a question of fact for the jury to determine after a consideration of all the testimony. And having been determined by them, the verdict will not be set aside on appeal to this court because there is a conflict in the evidence.

It is next contended that this case should be reversed by reason of the misconduct of the special prosecutor who appeared in this case. This contention is based upon the following remark: “The defendant is not entitled to any consideration because of his conduct here.” It is claimed that this remark evidently referred to the fact that defendant did not take the -witness stand in his own behalf. In the first place, there is nothing in the record to show that this remark was made, and therefore no exception taken. It first appears in the motion for new trial. Under the law this is not sufficient to present the matter. The argument not having been taken, it is impossible for the court to ascertain whether the statement was made and if made whether it was justified by something that happened or had been said at the trial. Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300; Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.

The contention that the court should have instructed the jury on circumstantial evidence can not be sustained for the reason that the state did not rely solely upon circumstantial evidence, but there was much direct and positive testimony.

The only question in this case that demands serious consideration is as to whether the sentence inflicted is excessive and should be modified, after an examination of the record.

There can be no doubt that deceased came to his death by reason of the shot fired from the pistol of defendant. No other shot was fired. The testimony of all the witnesses was that no altercation or difficulty of any kind had taken place involving the deceased prior to the firing of the one shot. All testified that he was alive while sitting on the divan prior to the shooting and nothing to indicate that he had been previously injured. The statement of defendant’s wife immediately following the firing of the gun to defendant, “You done shot that man sitting over there,” is conclusive that he was hit by that shot, and the testimony of the physician who examined him as to the length of time the injury had been inflicted all tend to prove conclusively that it Avas the shot from defendant’s pistol that hit the deceased and caused his death. All of the testimony indicates that there was no premeditated design upon the part of the defendant to kill the deceased, or to kill Leonard Leedy. The killing of deceased would only constitute murder as defined by the third paragraph of 21 O. S. 1941, § 701, which provides:

“Homicide is murder in the following cases. * * *
“3. When perpetrated Avithout any design to effect death by a person engaged in the commission of any felony.”

We have previously held that where one was charged with murder, he may be convicted under either of the three paragraphs. Evinger v. State, 57 Okla. Cr. 63, 45 P. 2d 552; Ware v. State, 47 Okla. Cr. 434, 288 P. 374; Carle v. State, 34 Okla. Cr. 24, 244 P. 833; Jones v. State, 15 Okla. Cr. 547, 179 P. 619.

In practically all of the cases Ave have read, where the facts were similar to those in this case, the juries have found the defendant guilty of manslaughter in the first degree, and not guilty of murder.

A case very similar in facts to the instant case was that of Hall v. State, 78 Okla. Cr. 389, 149 P. 2d 268, 270, and which contains the early and late decisions of this court. We deem it unnecessary to quote extensively from that case, as it may be read by those interested, but it is there stated:

“The evidence was not only sufficient to convict the defendant, but the jury could not have arrived at any verdict other than the guilt of the defendant. The killing of the deceased by defendant could not be justified, under the evidence. The defendant was found guilty of murder, and given a life sentence. The only question for serious consideration is, was this punishment excessive, under all the facts and circumstances of this case?
“The right of this court to modify a sentence imposed, and the reason for doing so, has often been stated in its opinions. It is unnecessary to restate them. Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Phillips v. State, 27 Okla. Cr. 108, 225 P. 180; Jones v. State, 48 Okla. Cr. 415, 292 P. 570; Alder v. State, 53 Okla. Cr. 374, 12 P. 2d 545; Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1082; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Hood v. State, 70 Okla. Cr. 334, 106 P. 2d 271; Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114.”

While, as above stated, there was no justification for the killing of deceased by defendant, the facts cause us to reach the conclusion that the punishment given defendant was the result of passion and prejudice on the part of the jury. We are, therefore, of the opinion that under the entire record the punishment is too severe and that justice requires it to be modified and reduced from life imprisonment to imprisonment in the State Penitentiary for a period of 40 years.

As so modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    UVON YEAGER v. STATE.
    No. A-10597.
    May 29, 1946.
    (169 P. 2d 579.)

      Kenneth B. Kienzle, of Shawnee, for plaintiff in error.
    . Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant was charged in the district court of Pottawatomie county with the crime of burglary in the second degree after former conviction ■of a felony; was tried, convicted and sentenced to serve ten years in the State Penitentiary, and has appealed.

On behalf of the defendant it is contended that the evidence is insufficient to show that a burglary was committed by defendant, and, secondly, the trial court erred in refusing to submit to the jury the issue as to whether the defendant had committed the included offense of entering a building under circumstances not amounting to burglary as provided in 21 O. S. 1941 § 1438.

In connection with the first proposition,, that the proof of the state did not show that a burglary had been committed, the facts are undisputed. The Pine Theater in Teeumseh was entered the night of April 16, 1943, and three pairs of pliers and a screwdriver were taken from the projection room. The owner of the theater testified as follows concerning the alleged burglary:

“Q. Was your theater broken into on or about April 16, 1943? A. Well, I don’t know what was involved, there was no door opened, but there was an opening one could get through. Q. There was an opening? A. Yes, sir. Q. Where? A. Outside over the front door in the ceiling, 7% or 8 feet high. Q. Not the regular entrance for customers? A. No, sir. Q. Or for employees to enter the theater? A. No, sir. Q. What was it used for? A. We taken a section of the cello-tex out of the ceiling for the purpose of putting a ventilation in for the booth for air to circulate through. Q. Was there a ladder or steps going up to the ceiling? A. No, sir. Only on the wall there was an advertising board which could be climbed but was not for that purpose. Q. Seven or eight foot high? A. Yes, sir. Q. How big was the opening? A. Somewhere in the neighborhood of 18 or 20 inches— somewhere around that, I wouldn’t know but approximately. Q. Just one cello-tex board off? A. Yes, sir. Q. Had he torn the door or screen off? A. No, sir. Q. You know whether or not Uvon Yeager was in Tecumseh at that time? A. No, sir. Q. You don’t know? A. Not positive because I didn’t see him. Q. You didn’t see him Friday night? A. No, sir. Q. How long before that time had you seen him in Tecumseh? A. Well, I saw him daily and I wouldn’t say positive I saw him the Friday it happened or not, but by him living there I would see him in town. Q. Do you know whether or not he had been inside and about the theater and knew where the equipment was and the arrangement in the theater other than being a customer? A. He had at one time helped me with the work. Q. He had helped you? A. Yes, sir. Q. You mean he had been about the machine room? A. Yes, sir. Q. And had occasion to see the tools and equipment? A. Yes, sir. Q. Did you give him or anyone permission to take any of these? A. No, sir. Q. Did you give him or anyone permission to climb up and to in there? A. No, sir.”

Cross-examination:

“Q. Mr. Bates, this hole that was in the ceiling there, or wherever it was, the opening was large enough for a boy or man to crawl through? A. Yes, sir. Q. Where did it lead — into the projection room? A. It’s the ceiling right over the main lobby partition wall making the opening. Been a store building remodeled into a theater. This opening entered into the booth for the purpose of air ventilation. Q. The articles taken, they were just laying out in the open there on a bench? A. Yes, sir, just in the open. Q. Then, in other words, to get these tools, you wouldn’t have to push anything open to get in? A. No, sir. Q. Wouldn’t have to open any doors or raise any windows or push anything, is that correct? A. Yes, sir.”

The foregoing is all of the testimony concerning the alleged breaking and entry into the building. The defendant was arrested several months after the articles were stolen and admitted to the officers that he had taken the pliers and screw driver, which had a total value of approximately $1.50 under the evidence. The state also showed that the defendant in 1941 had pleaded guilty to assault with intent to commit rape and had served one year imprisonment in the State Penitentiary.

Burglary in the second degree is defined as follows:

“Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.” 21 O.S. 1941 § 1435.

In the early case of Lumpkin v. State, 25 Okla. Cr. 108, 219 P. 157, 158, this court stated:

“It is a familiar principle that a breaking, necessary to constitute the crime of burglary, may be by any act of physical force, however slight, by which obstruction to entering is forcibly removed, and the opening of a closed door in order to enter a building may constitute a breaking; however, the evidence in this case wholly fails to show any such unlawful breaking or entering.”

In the case of Raymer v. State, 41 Okla. Cr. 263, 272 P. 488, it was held:

“While the breaking and entry may be shown by circumstantial evidence, there must be some proof, either direct or circumstantial, that the building was in fact broken into within the meaning of the statute defining burglary.”

In Yeargin v. State, 54 Okla. Cr. 34, 14 P. 2d 431, the second syllabus reads:

“The breaking and entering necessary to constitute burglary may be by any act of physical force, however slight, by which the obstruction to entering is forcibly removed, and the opening of a closed door in order to enter a building may constitute a breaking.”

In 12 C.J.S., Burglary, § 3, pages 669, 670, the rule as to what constitutes a breaking under the statute defining burglary is well stated as follows:

“To constitute burglary at common law, and also under the statutes, unless a contrary intention appears, there must be some breaking of the structure, either actual or constructive. An entry through an open door, window, or other aperture, although there may be an intent to commit a felony, is not enough. * * * Actual breaking involves the application of some force, however slight, whereby an entrance is effected, and means a making of an opening or mode of entrance into the building by force, but it does not necessarily contemplate the destruction of any of its parts. There must be some degree of force, and a ‘breaking, removing, or putting aside of something material which constitutes a part of the dwelling house, and is relied on as a security against intrusion.’ 'In order to constitute it (a breaking) the action of the defendant must have been such as would, without additional effort, have made an entry possible.’ An entrance through an opening in a wall without removing or overcoming any obstruction or obstacle of any kind is not a breaking.”

In construing the evidence of the state under the rules laid down by the above decisions, it is apparent that there was no breaking into the building under the contemplation of our law.

In the case of Ex parte Peoples, 69 Okla. Cr. 83, 100 P. 2d 295, it was held that the offense defined under 21 O. S. 1941 § 1438 is an included offense in a second-degree burglary charge. Said statute provides:

"Every person who, under circumstances not amounting to any burglary', enters any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.”

The. defendant prepared an instruction based upon this statute and requested that it be given, which request was refused. This was error, as the defendant was entitled to the benefit of such instruction.

The record discloses that the defendant spent eight months in the county jail awaiting trial on this charge. He had been employed by the owner of the theater doing-odd jobs around the theater for some time prior to the alleged theft. The owner of the theater testified that he signed a complaint in blank before he knew who had taken the articles, and that he did not desire to prosecute the defendant. Under the record, the guilt of the defendant of the misdemeanor defined under 21 O.S. 1941 § 1438, supra, is apparent. Because of the errors committed by the trial court above discussed, this court could remand the case for a new trial, but it would only result in a further delay and the imposition of additional imprisonment while awaiting trial.

On an appeal, this court may consider the entire record and modify the sentence imposed against the defendant to such imprisonment as the law and justice require. Under the circumstances, taking into consideration the small value of the articles stolen, and the fact that the defendant has already served many months’ imprisonment because of failure to make bond, the judgment and sentence against the defendant for the crime of burglary in the second degree after former conviction of a felony is modified so as to impose a judgment against the defendant for the misdemeanor of entering a building under circumstances not amounting to burglary, and the punishment is modified from ten years in the penitentiary to imprisonment in the county jail for a period of one day, and the judgment and sentence of the district court of Pottawatomie county as thus modified is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    FRANK HULSEY v. STATE.
    No. A-10581.
    June 5, 1946.
    (169 P. 2d 771.)

      Robert J. Wimbish, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Frank Hulsey, was charged by information filed in the county court of Pon-totoc county with the offense of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and to pay a fine of $50 and he has appealed.

On March 13, 1946, said case was assigned for oral argument. No argument was presented on behalf of petitioner and no briefs have been filed.

Where the defendant appeals from a judgment of conviction and no briefs are filed and no argument presented, this court will examine the evidence and ascertain if it supports the verdict, and will make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment Avill be affirmed. Dodge v. State, 78 Okla. Cr. 100, 144 P. 2d 124; Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262; Hiett v. State, 75 Okla. Cr. 190, 129 P. 2d 866.

We have carefully reviewed the record. Officers of Pontotoc county made a search of the Bel-Haven Tourist Courts at Ada in Pontotoc county on December 4, 1943. The defendant was staying at the tourist courts, but not. at the cabin where the intoxicating liquor was found. The defendant was arrested, however, and told the officers that the liquor was his. The next day he again told the officers the liquor was his and for them not to molest the owner of the tourist courts as he had nothing to do with the liquor. There was a sufficient quantity of liquor to make a prima facie case against the defendant, and the circumstances including his statement of ownership of the liquor are sufficient to sustain the verdict of guilt. There is no material error apparent in the record.

The judgment of the county court of Pontotoc County is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte ALVIN J. SHIRACK.
    No. A-10755.
    June 5, 1946.
    (169 P. 2d 1022.)

      "W. C. Henneberry, of Tulsa, for petitioner.
    Dixie Gilmer, County Atty., and M. S. Simms, Asst. County Atty., both of Tulsa, for respondent.
   JONES, P. J.

This is an original action instituted by the petitioner, Alvin J. Shirack, for the purpose of being admitted to bail upon a charge of murder now-pending against him in the district court of Tulsa county.

The petition alleges that the said Alvin J. Shirack is restrained of his liberty by the sheriff of Tulsa county, Okla., by reason of a commitment issued by an examining magistrate, committing him to the county jail after preliminary examination had upon a complaint wherein the petitioner Alvin J. Shirack was charged with the crime of murder alleged to have been committed by killing one Doris Alvey on April 9, 1946; that by information filed in the district court of Tulsa county he is charged with the murder of said Doris Alvey; that under the evidence produced on his preliminary examination, the proof of his guilt is not evident nor the presumption thereof great that petitioner is guilty of murder; that petitioner has made application to be admitted to bail to the district court of Tulsa county, which application was by said court denied.

At the time of said hearing, the petitioner introduced a transcript of the testimony taken before the committing magistrate at the preliminary examination and the assistant county attorney of Tulsa county appearing on behalf of the respondent, sheriff of Tnlsa county, stated that he thought the petitioner was entitled to some reasonable bail.

Without expressing any opinion upon the weight of the evidence, we are of the opinion that the evidence produced upon the preliminary examination was sufficient to warrant committing petitioner for trial upon the crime of murder. We are also of the opinion that under the testimony submitted, when considered together with the statement of the county attorney, that petitioner should be allowed bail.

It is therefore ordered that the petitioner be admitted to bail in the sum of $20,000, said bond to be conditioned as provided by law, to be approved by the court clerk of Tulsa county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    DAN LANDON v. STATE.
    No. A-10526.
    Feb. 27, 1946.
    (166 P. 2d 781.)

      Carl C. Wever, of Pawhuska, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Dan Landon, was charged by information filed in the district court of Osage county with the crime of rape in the first degree; was tried, convicted of the crime of rape in the second degree, and sentenced to serve 15 years in the State Penitentiary, and has appealed.

This is the second time the defendant has appealed to the Criminal Court of Appeals. In the opinion rendered in the former case, Landon v. State, 77 Okla. Cr. 190, 140 P. 2d 242, some of the evidence against the defendant was discussed. The cause was there reversed because of the admission of certain incompetent evidence. Upon a retrial of the case, the evidence complained of was omitted.

The defendant was accused of the crime of rape committed upon his daughter, Dorothy Landon, age 13, on May 24, 1939. Upon the trial of the case, the evidence disclosed that the act was committed when Dorothy was age 14, in May, 1940. The act is alleged to have occurred at a time when Mrs. Landon and several of their children were absent from the home. Dorothy Landon told of a series of acts of sexual intercourse committed with the defendant commencing five or six years prior to the time in controversy and continuing until she was fully matured. As to the particular act charged in the information, the prosecuting witness is corroborated by her sister, La Etta Landon, who' was occupying the same bed as Dorothy Landon, and testified that the defendant committed the act in her presence while she was there on the bed with Dorothy Landon.

A doctor who examined Dorothy Landon at the request of the county attorney testified that the hymen was completely obliterated and that, in his opinion, she had had sexual intercourse over a long period of time.

The defendant denied the act attributable to him and contended that his daughters were under the influence of Ms wife, who wanted to get him ont of her way so that she could remarry. The defendant and his wife had been married 19 years prior to his arrest for this offense and she had borne nine children. After the defendant’s arrest and conviction of this charge, she filed suit and obtained a divorce from him. Subsequently, the wife remarried. It is not shown in the record just how long a period she waited after her divorce before remarriage.

Where there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; Drennan v. State, 69 Okla. Cr. 348, 102 P. 2d 952.

The greater portion of defendant’s brief is devoted to the proposition that the court Avas Avithout jurisdiction to proceed with the trial of said cause because, first, the information was not verified, and second, the complaint filed before the committing magistrate was signed by the Avife of the defendant, and that she was incompetent to institute the proceedings against her husband; therefore, the complaint was a nullity and could not serve as a basis for the filing of an information in the district court.

Counsel states at the outset of his brief that this question was never raised in the trial court and is not set forth in the petition in error filed in this court, but it is contended that the lack of jurisdiction of the trial court may be shoAvn at any stage of the proceedings.

Counsel is correct in his assertion that jurisdictional defects Avill be considered by this court even though raised for the first time on appeal. Ex parte Lane, 58 Okla. Cr. 298, 52 P. 2d 1078; In re Talley, 4 Okla. Cr. 398, 112 P. 36.

Both the state and the defendant have briefed the question as to whether the wife may sign the affidavit making the complaint against her husband, for making an assault upon their daughter, but as we view the record, it is not necessary for us to decide such question.

This alleged defect was directed to the criminal complaint filed before the magistrate. If counsel had wished to question the insufficiency of the complaint filed before the magistrate, he should have done so by proper motion to quash at the time of his arraignment in the district court.

It has been held that the entire preliminary proceedings may be waived in the trial court and is waived by failure to file a motion to quash or set aside before entering a plea on the merits. Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259; Sheller v. State, 58 Okla. Cr. 204, 52 P. 2d 105.

In Sparks v. State, 71 Okla. Cr. 430, 112 P. 2d 434, it is held:

“Where a defendant voluntarily enters a plea of guilty, or enters a plea of not guilty, and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have such preliminary examination or that the transcript filed by the justice of the peace in the district court is insufficient.”

In the case of State v. Jackson, 57 Okla. Cr. 277, 48 P. 2d 861, this court stated:

“Where an unverified complaint charging a felony is filed before a magistrate, it is insufficient to authorize the issuance of a warrant, but if a warrant is issued on such complaint, and a defendant apprehended and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on such complaint without challenging its sufficiency for lack of verification, such defect is waived.”
“There is no requirement in this state that an information charging a felony, filed in the district court, be verified.”

This court has held in many cases that if a magistrate issues a warrant on an unverified complaint and defendant is apprehended and submits to the jurisdiction of the magistrate, without challenging its sufficiency for lack of jurisdiction, such defect is waived. Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002; Conti v. State, 45 Okla. Cr. 105, 282 P. 182.

It is not required' that information charging the defendant with a felony in the district court be verified. State v. Jackson, supra. However, by statute, it is provided that all informations shall be signed by the county attorney. 22 O. S. 1941 § 303. However, this requirement that an information be signed by the county attorney is one that may be waived and is waived where the defendant goes to trial without .raising this question. Roberts v. State, 72 Okla. Cr. 384, 115 P. 2d 270, 271.

Since the question now raised by defendant is raised for the first time on appeal, we feel that, under the authority of the cases above set forth, this court is bound to hold adversely to the defendant’s contention.

It is next urged that the trial court erred in failing to declare a mistrial because of certain evidence testified to by the prosecuting witness, Dorothy Landon, on cross-examination. In this connection, the record discloses the following incident occurred during the cross-examination of the witness by counsel for defendant:

“Q. How did it happen you did not discuss this particular act when your mother was in Oklahoma City? Mr. Carman: Ponca City. Q. Ponca City. A. We didn’t talk about it. Q. You did talk about it? A. We didn’t. Q. Why didn’t you talk about it? Can you give any reasons? A. We didn’t want to, I guess. Q. But you did want to talk about these other acts, is that true? A. We told each other because it was happening, the same thing, to both of us. Mr. Wever; Now, if the court please, we ask that be stricken and the ’court’ admonished not to give any weight to it; and we ask for a mistrial. Mr. Carman: I cannot help if counsel runs into a buzzsaw — on cross-examination. Mr. Wever: I haven’t run into a buzzsaw. The Court: Mr. Wever, you have asked this girl why. Mr. Carman: And she has the right to answer. Mr. Wever: About improper relations with her. The Court: Well, I will admonish the jury that anything she has said here in answer to his question with reference to the defendant’s relations with someone else other than herself be not considered by the jury. Mr. Wever: And we ask that you declare a mistrial. The Court; Overruled. Mr. Wever: Exception.”

Just preceding the examination .complained of, it had been brought out by cross-examination that the defendant had been having improper relations with the witness for many years, but that during all of those years the witness had not divulged that fact to her mother, but had talked it over with her sister, La Etta, except she stated that she did not discuss the particular act involved in this prosecution with her said sister. Counsel then proceeded with the examination herein above set forth with the results therein shown.

Counsel contends that the court should have declared a mistrial because the statement by the prosecuting witness was not in response to his question and her statement that the defendant was doing the same thing to her sister was prejudicial to the rights of the defendant and denied him a fair and impartial trial.

While the state virtually ignored this proposition in their brief, still, this court will not take such action on the part of the state as an admission by the state that defendant’s contention is correct. Under the decision which we rendered in the former appeal,' we held that it was error for the court to admit in evidence, over the objection of defendant, alleged acts of sexual intercourse committed with parties other than the prosecu-trix, where they are distinct and unrelated offenses and not so connected with the offense charged in the information as to be a part of the res gestae. Landon v. State, supra. Under this holding, if the county attorney had attempted in the direct examination of the witness to have brought out conversations between the witness and her sister to bolster the state’s case, or to show other acts of sexual intercourse with the sister wholly disconnected with that charged against the defendant, this court would not hesitate to have reversed the case because of such conduct. Here, however, we find the state very careful in the presentation of its case. The evidence complained of was brought out by cross-examination of the prosecuting witness. A reading of the record shows that counsel for defendant was insistent in his cross-examination that the prosecutrix give some reason why she had not discussed this particular act with her sister, with the consequences noted in the record as herein above set forth. Counsel may not in his cross-examination go to exploring unknown fields and object to evidence which he brings out by his questioning because such evidence is damaging to his client. Here, counsel asked this young girl, “Why didn’t you talk about it?” “Can you give any reasons?” The answer given by the witness was an attempt on her part to explain just why the matter was or wasn’t discussed.

In addition to what we have said above, we find that the trial court in this instance admonished the jury not to consider the statement of the witness with reference to the defendant’s relations with some one else other than herself. Counsel for defendant, in view of the questions which he had asked, should have been satisfied with this admonition of the court.

We can find no substantial errors in this record. The cause ivas fairly presented. The jury decided the issues against the defendant. In the former trial he was given a sentence of 40 years; in this trial the jury only gave him a sentence of 15 years. We thus find the jury tempering the judgment with mercy.

The judgment and sentence of the district court of Osage county is therefore affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.