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    GEORGE VALENTINE v. STATE.
    No. A-3191.
    Opinion Filed May 19, 1919.
    1. WITNESSES — Scope of Cross-Examination. When a witness on dii-ect examination is interrogated relative to a conversation, tbe opposing party is entitled to draw out all tbe material portions of such conversation on cross-examination.
    2. SAME — Cure of Error by Withdrawal of Evidence. Evidence of certain of defendant’s witnesses elicited on cross-examination relative to a certain conversation between sucb witnesses and a third party, admitted without objection or exception by defendant’s counsel, constitutes no ground for reversal where tbe same is afterwai'ds withdrawn from tbe consideration of tbe jury by the trial court at tbe request of defendant’s counsel.
    3. APPEAL AND ERROR — Harmless Error — Evidence. A judgment of conviction will not be reversed on appeal on the ground of the improper admission of evidence unless, in tbe opinion of the court, after an examination of tbe entii’e record, it appears that there has probably been a miscarriage of justice or a substantial violation of a constitutional or statutory right guaranteed to the defendant.
    4: EVIDENCE — Admissibility of Evidence (xiven at Preliminary •Trial. The constitutional provision which guarantees to a defend- • ant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary trial before a justice of the peace. When this has been done, and upon a. subsequent trial of the said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died, become insane, left the state, or that their whereabouts can not with due diligence be ascertained, or are sick and unable to testify, the-testimony of such witnesses given upon said former trial may be-proven upon the subsequent trial.

      Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.

    George Valentine was convicted of the crime of manslaughter in the first degree, and his punishment fixed at eight years’ imprisonment in the state penitentiary, and he,appeals.
    Affirmed.

      Pruiett, Sriiggs & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
    Statement of the Case.
    This is an appeal from a judgment of conviction for .manslaughter in the first degree rendered against the defendant, George Valentine, in the district court of Kiowa, county, wherein he was convicted of having shot and killed ’ one Ray Phifer, and sentenced to serve a teitm of eight.: years’ imprisonment in the state penitentiary. ¶
    This killing occurred on the night otf the 25th day of March, 1917, near the Semone or Arkansas Bend schoolhouse in the eastern part of Kiowa county. The defendant, George Valentine, was a farmer, living at that time about 100 yards north of said schoolhouse. He was about 47 years of age, and had a wife and four living children, one of whom, Glemmie Valentine, was a young lady about 16 years of age at the time of this homicide. The deceased, Ray Phifer, was a farmer boy about 19 or 20 years of age, and lived some four or five miles southwest of the defendant.

      Young Phifer had been paying attention to Clemmie Valentine, and the relations between them had, become intimate. As a result of such illicit relations, Clemmie Valentine, it is claimed, became infected with a venereal disease, which fact was communicated to her father, George Valentine, the defendant, some 35 or 40 days before the commission of this homicide. Whereupon, he took his daughter to ■a physician for purposes of physical examination, and was informed by such physician that his daughter was then suffering from the disease called gonorrhea. Neither the •daughter nor the defendant testified that the defendant was told that the deceased was responsible for the daughter’s condition, although the daughter testified that she had on tv/o occasions, once in the late fall or early winter of 1916, and again in the early part of 1917, had sexual intercourse with the deceased, and that the deceased had been keeping company with her over the objections of her parents.
    The defendant testified that the attentions of the deceased to his daughter were objectionable to him, and that a fter he learned that his daughter was infected with a venereal disease the matter preyed upon his mind to such an •extent that he suffered from lapses of memory, and at times •did not know what he was doing. In this connection, the -.defendant also testified that he had a sister who died insane, and an uncle, a brother to his father, and also a cousin to ' his mother, who each died insane, and that he had also an-1 other cousin who suffered from epileptic fits. The defend- : arit also testified that some years previous to the commission of the homicide, and before his (marriage, he suffered an fin jury to his back from a fall from a horse, and at another .'time tin injury to his head from a similar fall. On the "Question of insanity there was also other evidence, both lay rand expert, to the effect that the witnesses considered the defendant insane at the time of the commission of the homicide, but the extent otf such insanity or its continuation either before or after the commission of the homicide is not developed in the evidence.
    One of the defenses interposed was insanity; another was self-defense. On the latter theory of his defense, the-defendant testified that the .deceased, Ray Phifer, had 'been ordered by the defendant to stay away from--his premises- and to .cease paying: attention to his daughter, Olemmie; that, the deceased paid no attention to these admonitions given, him by the defendant, but continued to pay his attentions to defendant’s daughter.
    On the Saturday night before the homicide on .Sunday night, Clemmie Valentine left home to spend the night with her friend, Lillian Fielden, who lived about a mile east. After she had gone to Fielden’s, Olen Valentine, the son of the defendant and a codefendant who was acquitted at the ti ial, noticed a Ford car pass the road in front of their house going east, and he took one of the occupants of the car to be the deceased, Ray Phifer. Olen .Valentine then went and informed his father that he believed Ray Phifer had gone up to Fielden’s to meet Clemmie. Upon being informed of this fact, George Valentine, Olen Valentine, and a young man who was staying in the Valentine home, Carl Byers, got into a Ford car and started out in pursuit of Ray Phifer. Phifer, it appears, had previously arranged to meet Clemmie Valentine at Fielden’s on this night, and when he called at Field-en’s house he requested Olemmie to go to a picture show -with him. Clemmie declined to go unless -her friend, Lillian Fielden, would go with her, and Lillian declined to go unless her brother, Sylvester Fielden, also went along. Finally it was agreed that they should all go, and Ray Phifer, Sylvester Fielden, Lillian Fielden, and Clemmie Valentine started away from the Fielden home in a Ford car ostensibly to go to a picture show. When they got out on the public highway near Fielden’s, John Burdock, another young man, was waiting for them, he having gone up there with Phifer in the first instance but not having gone into the house. Burdock was taken into the car, and it was then agreed that it was too late to go to a picture show, but that they would all take an automobile ride.
    They proceeded west from the Fielden home a distance of a little over three miles, turning south at a road near the premises of Charles Johnson, at which point they ran out of gas and sustained a puncture to one of the tires on the car. While they were at this point, the Valentines and Carl Byers overtook them, George Valentine, the defendant, being át this time armed with a Winchester repeating shotgun, the same weapon afterwards used in accomplishing the killing.
    Upon his arrival at the scene of the breakdown, George Valentine inquired of Phifer and Burdock and Sylvester .Fielden if Clemmie Valentine was with them, but was informed that she was not with them, although Clemmie Valentine and Lillian Fielden were then hiding, concealed between the front and rear seats of the car. After receiving ¡such information, the Valentines and Byers turned their car :around, and started back in the same direction from which they had come. George Valentine, however, got out of the car and hid under a traction engine not far distant from the scene of the breakdown. Olen Valentine and Carl Byers proceeded back to the Valentine home, procured Mrs. George Valentine, and then went to the Fielden home, where they were informed that Clemmie Valentine had accompanied Ray Phifer from the Fielden house in a Ford car. Upon receiving'this information, Mrs. Valentine, Olen Valentine, and Carl Byers returned to where George Valentine had been in hiding.
    While George Valentine was hiding, he heard voices down at the Phifer car, and recognized one as that of his daughter, Clemmie. Clemmie and Lillian Fielden got out of the car, however, and walked back to the Fielden home. After they had departed, the Valentines again returned to the scene of the breakdown, and then learned from Sylvester Fielden that the girls had been there when the Valentines first came up but had left for home. By this time, Phifer and Burdock had repaired the car, and Phifer had gone to the home of Charlie Johnson and got some gasoline, and they (Phifer and Burdock) drove away together in a southerly direction. Sylvester Fielden was taken in by the Valentines and returned with them to his home, where it was learned that the girls had returned. After receiving such information, the Valentines repaired to their home. By this time it was midnight or later.
    Clemmie Valentine stayed all night with the Fiel dens, and all day Sunday, and Sunday evening she attended the church services then being conducted in the Semone schoolhouse. On this occasion she was accompanied by Lillian Fielden, Mrs. Fielden, and other members of the Fielden household. At the -services she first saw her father, George Valentine, after Saturday night’s escapade, but they did not sit together.
    The first learned of Ray Phifer after 'Saturday night’s escapade was on the occasion of his meeting up with Frank Sloan and Carter Barney, two young farmer boys who lived in his neighborhood; on -Sunday afternoon. Sloan‘and Barney were driving a single buggy in a southerly direction, and met Phifer, who was driving a single buggy in a northerly direction. Sloan and Barney had determined to attend a ball game at Sedan, but after meeting Phifer they all three concluded to attend the church services at the Semone schoolhouse, in which direction Phifer was then headed. This agreement was reached at the suggestion of Phifer, and after it was agreed to go there the boys went to Mr. Barney’s house, put a pole to one of the single buggies, hitched both horses to it, and all three then proceeded in a northerly direction toward Semone schoolhouse. It being somewhat early in the afternoon, the boys stopped at the home of Mr. Mc-Michael and visited a short time, after which they drove into the town of Carnegie, and there fed their team and ate supper, ‘eaving Carnegie for the services at Semone schoolhouse about 8 o’clock in the evening.
    Upon arriving at the schoolhouse, it was found that the services had commenced, that they were late, and they concluded not to go into the schoolhouse,. and all of them, with the exception of Phifer, got into a Ford car which was parked near the schoolhouse, and after they had got into the car one of the McMichael boys came out and was talking with them. Phifer, it appears, went up to the schoolhouse, and when his presence became known there Olemmie Valentine got up and left the church services. After leaving the schoolhouse, she was met by Phi'fer and a conversation took place between them, in which Clemmie says that Phifer asked her how she got home the evening before, and also wanted her to go out with him again that evening, but that she refused and went on to her home, about 100 yards distant. Phifer then went and sat down in the car with the rest of the boys.
    A short time thereafter, George Valentine left the schoolhouse, also before services were concluded, and came out to where the boys were sitting in th'e car. He talked crop conditions with them, saw Phifer at that time, but made no demonstration towards Mm nor had any conversation with him with reference to what occurred the evening 'before, or with reference to his attentions to his daughter, Clemmie.
    After the services were concluded, the three boys, Phifer, Barney, ana Sloan, got into their buggy and started west towards their homes. George Valentine went home and was there infoimed by his son, Olen, that Phifer had been talking to Clemmie at the schoolhouse. What occurred after that is detailed by the defendant as follows:
    “A. * * * My boy says, ‘Papa, do you know that that noy got hold of Clemmie over there and wanted her to leave with him again?’ I says, ‘For God’s sake, what are we going to do ?’ I says, ‘Go and get the car and I’ll overtake that gentleman and give him one more warning to stay away from my place — that’s just what I’ll do.’ The boys went across the lot and got the car and when they drove up there the light was out on the right hand side of this car — wasn’t burning. I 'hollered for my wife to bring the lantern there. I and Carl Byers and Olen fixed the light; I don’t know who set the lantern over in the car, whether my wife set it in or I set it in, or Olen or Carl, but anyway the lantern was set over in the car and we started to overtake Ray Phifer. We went, I suspect, about two miles and a quarter. Q. Ntow, before you started there did you know that there was — that the shotgun was in the car? A. I did not. Q. Was the shotgun, in ifact, in the car ? A. The shotgun was in the car on Saturday night when we come from Mountain View and wasn’t removed out of the car that I know anything about. Q. Well, it was in the car, in fact? A. Yes, sir. Q. When did you first find out it was in • there ? A.' That Sunday evening. Q. That is after you started out up the road? A. I should guess that we was three-quarters of a mile, maybe — possibly more — and I stooped over to pick up a lap robe - — a lap robe laid in the car, to pull over my lap and that gun was lying under that lap robe in the car; the first of my knowing that gun was in the car. Q. How was the gun loaded, if at all?' A. It wasn’t at that time. Q. Did you have any shells? A. There was two shells in this gun,' just like it was Saturday night. Q. Was the shells in the gun or magazine? A. It was in the magazine. Q. How many? A. Two. Q. Did you have more shells than two ? A. I had — no, sir; not number twelve shells — I had one number ten shell — two is all I had. Q. Where did you get these shells? A. I got this shell from Willie Norman the night I got this cussin’at my house. I got five. Q. What became of the other shells? A. My son fired three of these shells the night he was charivaried there at my ¿ ouse — one of these shells was a number ten. Q. Where was that number ten shell? A. It was in the dresser drawer in my house. Q. Well, you started up the road, west? A. Yes, sir. Q. How far did you go in that direction? A. We went about two miles and a quarter,” I guess, and come to this buggy — no, we passed a team and wagon, I believe, before we got there — I believe we passed a buggy and a wagon, but I v on’t say, but anyway we come to this buggy, driving along in a trot. Drove on by them and I- says, ‘that’s not him’ — we must have went half a mile, I guess, or possibly not that far —I says, ‘The chances is that was him.’ I says, ‘Turn around, Olen, we’ll go back’; we turned around and went back and as we went back decided that it was him — we went back possibly 50 yards or 60. I says, ‘We’ll go back up and see him/ I says, ‘ I have come up to give him a talking to,’ and — By the Court: Talk a little louder, I don’t believe the jury can hear you. A. You gentlemen back there don’t hear me? By a Juror: Not all of it. A. I says, ‘Turn around and drive up— I want to talk to him.’ Olen drove up by the side of the car; I says, ‘Hold on there, Ray,’ he was sitting on these other boys’ laps; he just rose up like this and these two boys gave him a shove like this and one went out on the toe-board of the buggy — one of these boys went this way and one this way — the one that come out this way was within three feet of my car — the buggy wheel run over him. I thought Ray Phifer got out on the ground with these boys. I drew my attention over this way, thinking this was Ray Phifer on the ground,, too; this boy rose up and directly I heard a voice, ‘Look out, Dad, he’s going to shoot — he’s going to shoot.’ I immediately whirled around and fired two shots towards the buggy. I says, ‘Get from here, Olen.’ Q. Did you see Ray Phifer at the time you fired these shots? A. I could see nothing but the bulk of the buggy. Q. Had you seen him have any weapon prior to this time? A. Before this time? Q. Yes. A. No, I couldn’t say that I ever saw him carrying any weapons. Q. Oh, no; before this time, at the shooting? A. Oh, yes, I saw the gun there at the buggy. Q. Was that before or — before the boys got out of the buggy? A. It was all the same collapse to me — that’s the way it looked to me — I thought he went clear over the toe-board of the buggy when these boys pushed him. Q. Did you have any intention of shooting Ray Phifer when you went up there? A. I absolutely did not. Q. Did you have any intention of shooting him at the time you told him to stop? A. If that boy had spoke to me I would have talked to him like a man and told him for God’s sake to stay away from my home. Q. Is that what you went there for ? A. That’s exactly what I went there -for. Q. Mr. Valentine, what effect did it have upon you when you found out your daughter’s condition? Counsel for the State: Objected to as incompetent, irrelevant, and immaterial. The Court: Overruled. Answer the question. A, Well, gentlemen, I don’t think that I could express my feelings; I don’t believe that I could do it; absolutely don’t believe — it was such a shock that I could make no attempt to express the feelings to you men that that brought upon me. Q. It was a shock to you? A. Shock? Well, if a man had knocked me down it wouldn’t have hurt half so bad.”
    What occurred at the time of the killing from the standpoint of the state’s witnesses is told by Frank Sloan as follows:
    “Q. Did you see George Valentine, Olen Valentine, and Carl Byers any more that night, after you left that sehoolhouse? A. Yes, sir. Q. Where did you see them at next time, Frank? A. About two miles and a quarter west of the Bend. Q. Do you know where Mr. Valentine lived from tliere ? A. Yes, sir; he lived right north oif the church or schoolhouse. Q. About how far from this Sem-one schoolhouse did he live at that time ? A. I don’t know; a couple of hundred yards, I suspect. Q. All right — then the next time you saw him about two miles or two and a quarter from the schoolhouse? A. Yes, sir. Q. How was he traveling? A. Car. Q. What kind of a car? A. Ford, I think. Q. Who was with him? A. Carl Byers and Olen Valentine. Q. What became of them? What did they do? Just tell the jury what' was done from there out until — in your own way, Frank. A. Well, they drove ahead of us and turned around, went behind us and turned around and come up behind us and hollered, ‘Stop, or I’ll shoot,’ and me and Carter jumped out. Q. Who and you? A. Carter Barney, and went — when I jumped out I stood there by the side of the car and told them not to shoot me and Ray — they—that stopped them from shooting, I suspect, for a while, and Ray turned the team across the road and went out in the listed field and he wasn’t out there but a 'piece when they started to shoot. Q. Now, did you see the defendant, George Valentine, with any gun or anything? A. Yes, sir. Q. What kind oif a gun? A. A shotgun. Q. What was Olen Valentine doing at the time? A. Driving the car. Q. What was Carl Byers doing, if anything? A. Holding the lantern. Q. Was he hold-, ing the lantern lighted? A. Yes, sir. Q. How many shots — you say after Ray Phifer turned out into the field Valentine commenced shooting? A. Yes, sir. Q. How many shots was fired, Frank? A. Three. Q. By whom? A. By Mr. Valentine. Q. About how far was Ray Phifer from Valentine at this time, when the shooting taken place? A. I don’t know; I judged it to be about 50 yards that night; the rows might be closer or farther; I didn’t measure it. Q. Was Ray in the buggy or was he out of it at that time? A. He was in the buggy as long as I could see him. Q. The last time you saw him he was in the buggy? A. Yes, sir. Q. Now, after the scooting what did the defendants Valentine and Byers do, if anything? What became of them? A. They drove down the road about half a mile, I judge, and turned around and went back towards home. Q. What did you and Carter Barney do, if anything? A. Well, went out to the buggy. Q. What did you find after you got there? A. Found one horse standing up and the other one was laying down and there wasn’t anybody there. Q. Could you find Bay anywhere? A. No, sir. Q. Ray Phifer? A. No, sir. Q. Did you look for him — hollow for him? A. Yes, sir. Q. Call to him? A. Yes, sir. Q. What did you do after you failed to find hita ? A. Well, we unhooked one horse and tied 'him to a wheel, and started for the — for a house and we went to one house and the fellow said he had the measles and couldn’t help us, and he told us where Johnson lived, and then he said Norman, or — I don’t know the name — another fellow lived south a half mile and Charlie Johnson lived north a half mile; we went up to Charlie Johnson’s and got him and looked again for Ray. Q. Was you able to find him then? A. No, sir. Q. W'hat did you do then? A. Hooked the team up and came home. Q. Who drove the team out? A. I did. Q. And what direction did you go out of there with that buggy, what direction? A. Went towards the road, north. Q. Went back north? A. . Yes, sir. Q. Now, in turning did you turn to the east or turn to the west to get back north ? A. Turned to the west. Q. Drove northwest? A. Yes, sir. Q. And went back to the section line east and west? A. Yes, sir. Q. Which was north o'f the field — what—where did you go from there? A. Went home — to Barney’s. Q. Went to Mr. Barney’s? A. Yes, sir. Q. Did you go to Ray Phifer’s home that night ? A’. Yes, sir. Q. Did you report what had taken place, to his people? A. Yes, sir; we told Will Phifer. Q. A brother of his? A. Yes, sir. Q. Did you go back over there the next day ? A. No; sir. Q. Did you go back Tuesday? A. No, sir. Q. Have you ever been back there since? A. No,, sir; I have not. Q. Was there ony one else present that you saw during this shooting, except yourself, Carter Barney, and these three defendants here and Ray Phifer? A.- No, sir.”
    The body of the deceased was found on Tuesday after the killing Sunday night. It was located about 200 yards south of the section line road where the deceased had fallen after leaving the buggy where the horse had fallen down, some 150 yards north of where the body was found. A "ost mortem examination was held; death being caused 'by two shot wounds that entered the body in the back, one on the left side and one on the right, below the respective shoulder blades, 'both of which shots evidently penetrated the lungs, the one on the left side being near the heart. Twenty-six indentations of shot were counted in the 'back of the buggy in which deceased was riding, and two large shot were picked out of the buggy.
    On the 5th day of April, 1917, about 11 days after the homicide was committed, and after several parties had been on the premises searching for the body of the deceased and, after the body was found, searching for weapons, etc., a 38-caliber, dark handled pistol was found in one of the listed rows of the field about 11 steps east and a little bit north of where the buggy had turned around. This weapon was a dark handled, dark barreled pistol, and had four loaded shells and one empty shell in the cylinder.
    Before the body of the deceased was found, on the Monday after the homicide, and after several officers had been at the scene of the homicide searching for the body of the deceased, a conversation was had between them and the defendant, in which defendant told them that the deceased, Phifer, had evidently run away; that he had not shot to hit him, but had only shot in the air to scare him, and that it was his, defendant’s, opinion that Phifer would show up uninjured.

      The foregoing statement contains the material evidence in this case. The record contains over 900 typewritten pages of evidence. The testimony on the part of the state would sustain a conviction of murder, and it is the candid opinion of the court, after reading this record very carefully, that there is no evidence' which would j ustify the acquittal of the defendant on' the ground of self-defense and that the evidence of insanity is of an unsatisfactory character and wholly deficient to meet the requirements of the previous decisions of this court to the effect that, before a person may be acquitted on the ground of insanity, there must have been a reasonable doubt that the defendant at the time of the commission of the act charged was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing.
    The deceased was killed at a time when he was endeavoring undoubtedly to escape from the defendant, or else he would not have turned the horses out of the public highway and onto the listed field where he knew it was practically impossible to follow him in the automobile. The only excuse offered for the shooting was that his son yelled, “Look out, Dad, he is going to shoot!” The defendant does not pretend that at the time he fired the shot the deceased was making any demonstration whatever towards him, or that he believed himself to be in imminent danger of death or serious bodily harm at the hands of the deceased. Indeed, the defendant’s evidence would indicate that he was uncertain which one of the 'boys, whether one of the two on the ground or the one still in the buggy, was Ray Phifer.
    The court, in instructing the jury, submitted both theories of the defense fully, fairly, and impartially, and more favorably than the evidence of the defendant would warrant. There is no contention in this case that the evidence is not sufficient to sustain the verdict, nor that the instructions of the court were not fair to the defendant or were prejudicially erroneous in any particular.
   MATSON, J.

(after stating- the facts as above). It is first contended that the court erred in admitting the evidence of a certain conversation had between one Charlie Johnson and certain parties who were present at the time the pistol was -found, which is alleged to have belonged to the deceased. In the direct examination of M. V. Shaw, a witness for the defendant, and one of the parties who made the search at the time the pistol was found, the following questions and answers were asked and made:

“Q. Did any other person or persons come there while you were searching the field? A. Well, there was a party stopped out at "be road and come out about half way to where we were. Q. Do you know who that was? A. Yes, sir. Q. Who? A. Charlie Johnson. Q. He didn’t come out? A. No, he didn’t come clear to where we were. Q. Anything said to him about what was being done there? A. Yes, he called to me and told me to come to him, and I said, ‘No, you come here.’ We were squatted down then around where the gun was. Q. He didn’t come there? A. No, sir.”

On cross-examination, the county attorney asked the following questions, and the respective answers were made thereto :

“Q. How long did you all sit dov/n around that gun? A. Oh, I suppose five minutes, anyway. Q. What was said upc»n that occasion by any of you and by all of you? A. Well, we were just talking about the condition of the gun — the way it appeared. Q. What was done? A. I think I suggested, myself, that the gun had been there long enough for the metal part-to be rusted and where there was a little grease settled around the cylinder that the dust and dirt had settled on it; been laying there -for some time; I íhink I suggested that myself. Q. Who else suggested anything? A. I don’t know that. Q. Was that all there was said? A. No, there was quite a bit said. Q. What was it, Mr. Shaw? A. Oh, I don’t think I could detail the conversation; we were sitting there talking about it; I was ■discussing the condition of the gun and talking about it, at the time this Mr. Johnson come up there and called me. Q. Mr. Johnson? Charlie Johnson? A. Yes, sir. Q. He came up and called you ? A. Yes, sir. Q. What did you say to him? A. He called me and said, ‘Come here’; and I said, ‘No, you come here.’ Q. What did he say to you ? A. He said, ‘No, I’m not coming there; I know all about that I want to. know.’ Q. What else did he say to you? A. I don’t know; he muttered out something, I don’t know just exactly the words he did say. Q. You couldn’t tell what he said? A. Well, I know that that’s what he said; he calling me to come here* and I called him and I said, ‘No, you come here;’ and he said, ‘No, I know all about that I want to know; I am going right now to see the county attorney’; and he turned and went back to his ear from the road. Q. Will you tell this jury if that’s all he said upon that occasion? A. I think that’s all he said; he may have said more, but I think that’s all he said. Q. I will ask you if he didn’t tell you that no, he knew all about that he wanted to know, that he knew for some time that they was going to find a gun out there? That it was all fixed and he wasn’t going to have anything to do with it? A,' I don’t think he said that, either; he said that up in the road after we overtaken him. Q. And that he was going to report it to the county attorney? A. Yes, sir. I told him if he knew anything that the county attorney ought to know that he ought to go and tell him, and he says, ‘Well, I know it.’ Counsel for Defendants: If the court please, we move to strike out all of that conversation that took place up in the road there, between the representative of the county attorney and the witness. By the Court: Overruled. Counsel for Defendants : We except.”

Evidence relative to the conversation between Johnson and Shaw was also elicited from the witness A. T. Walker, which evidence was admitted without objection and exception, except that the defendant moved to strike the statements testified to as having been made by 'Charlie Johnson for the reason that such statements were incompetent, irrelevant, immaterial, hearsay, and prejudicial to the rights of the defendant, at which time the court announced that he would reserve his ruling.

At the conclusion of the trial, the court ruled on the foregoing motion to strike as follows:

"‘By the Court: Gentlemen of the jury, on yesterday an objection was made to the introduction of certain evidence concerning statements made by one Charlie Johnson, or Charles Johnson, at the time of the search that — or on finding of a pistol at the scene of the killing in this case, to which objection the court at that time reserved the ruling. The court at this time will sustain the objection to the statements made or purported to have been made by Charlie Johnson at that time and the same are stricken and withdrawn from your consideration and are not to be considered by you for any purpose.”

It is contended by counsel for the defendant that, although the court, in response to the defendant’s request not to consider the statements alleged to have been made by Charlie Johnson to those present at the time of the finding of the pistol, withdrew said statements from the consideration of the jury, nevertheless the damage had been done by their admission and the error could not be cured by a mere withdrawal of the same from the jury’s consideration.

Counsel overlook the fact that this evidence was admitted first without objection and exception by counsel who represented defendant at the trial of this case. Counsel also overlook the fact that as a part of the direct examination of the first witness called to testify as to the finding of this pistol, counsel for the defendant elicited part of this ■conversation had with Charlie Johnson. The rule is well. established that “when a witness on direct examination is interrogated relative to a conversation, the opposing party is entitled to draw out all the material portions of such conversation pertinent to the issues on cross-examination.” Gibbons v. State, 5 Okla. Cr. 212, 115 Pac. 130. In the body of the opinion in the f oregoing case, it is said :

“The appellant contends that the court erred in refusing to allow him to have the witness, Mrs. Notson, (formerly the wife of the deceased, Renfro) give the whole of a conversation had between her, the defendant, and one Redding-ton, after having permitted a portion of the conversation containing alleged threats to go to the jury in chief. We think this contention is well taken. The general rule is that when a conversation is gone into in chief, all the material portions pertinent to the case can be drawn out on cross-examination. In the case of U. S. v. Knowlton, 13 N. W. 575, the Supreme Court of North Dakota says: ‘No rule is plainer than that a party has the right, upon cross-examination, to have given all other parts of the same conversation mot given on the examination in chief which will serve to explain or modify the tendency of that part testified to in •chief.’ This statement of the rule is sound and expresses our view. In the case of Sager v. State, 11 Tex. App. 110, the court says: ‘When the state has put in evidence a portion of the conversation between the defendant and another, the defense has the right to prove the whole of it on the same subject.’ See, also, 142 U. S. 691. In the 11th Pacific, 811, in the case of Watrous v. Cunningham, the court says in the syllabus: ‘Where a witness on his examination in chief testifies to a part of a conversation had by him at a certain time and place, the entire conversation is admissible in evidence on cross-examination’ — and in the opinion: ‘When a witness has related anything which he said at a certain time and place and under a given state of facts, it is competent to have him state all be uttered on such occasion.’ See, also,, Walsh v. Patterson, 59 Neb. 645, 81 N. W. 853; Metzer v. State, 39 Ind. 596; Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985; People v. Warren, 122 Mich. 504.”

In the instant case, the court did not rule adversely to the defendant, but sustained the motion of the defendant to strike the alleged incompetent evidence from consideration by the jury. This was all the trial court was called upon to do, and this was the only ruling that he could make under the circumstances, as counsel for the defendant had let this evidence go in without objection and exception, and it-was only by a motion to strike that it could be withdrawn from the jury’s consideration. The condition is not presented, therefore, where the court admits incompetent and irrelevant evidence over the objection and exception by the defendant, and this court is not called upon to construe as error any action of the trial court adverse to the defendant.

If the trial court’s ruling was error in this particular, the action taken was favorable to the defendant, and the defendant will not be heard to complain in this court of action by the trial court which was made at his request. It is perhaps due to counsel who represent the defendant in this court to state that they did not participate in the trial. We find no merit in the foregoing assignment of error.

It is next contended that the trial court committed prejudicial error in permitting the county attorney to cross-examine the witness Clemmie Valentine as to acts of immoral conduct with men other than the deceased. The particular evidence complained of is set out in the brief of counsel for the defendant as follows :

“Q. Do you know Jim Coleman? A. Yes, sir. Q. Did you ever go down on the creek with Coleman? Counsel for Defendant: If the court please, we object to that as not the proper cross-examination, incompetent, irrelevant, and immaterial. County Attorney: We think it is very material under the circumstances in this case. By the Court: I will let her answer. Counsel .for Defendant: Overruled? We except. Q. Did you ever go down on the creek there — the creek that runs down by your house there, doesn’t it? A. Yes, sir. Q. What is called, ‘Stickin’ Creek’ ? A. Yes, sir. Q. Was you ever down on the creek there with Jim Coleman? A. Was down there while they was building that bridge. Q. How many times while they was building that bridge was you down there with Jim Coleman? A. Once.’ Q. More than once? A. Once is all I remember of. Q. Wasn’t you down there twice? A. Not that I remember of.”

Counsel argue that the foregoing testimony tends to show immoral conduct by the witness Clemmie Valentine with another than the deceased. We are not seriously impressed with the force of this argument. So far as the examination of the witness with reference to conduct with one Jim Coleman is disclosed, there is nothing in the evidence set out to indicate that anything immoral ever took place between the witness Clemmie Valentine and Jim Coleman. If they ever took a trip “down on the creek,” the evidence shows it was to a place near where they were building a bridge in the daytime and that others were present.

We fail to see wherein this evidence could have prejudiced the defendant, and this court is not permitted to reverse a judgment of conviction on the ground of the improper admission of evidence, unless in the opinion of the court, after an examination of the entire record, it appears that there has probably been a miscarriage of justice, or a substantial violation of a constitutional or statutory right. Section 6005, Revised Laws 1910.

While the evidence admitted on cross-examination, as above set forth, was incompetent and shed no light upon the issues under investigation, it failed to show any immoral conduct between Clemtaie Valentine and Jim Coleman, and resulted in no prejudice to the defendant.

Lastly, it is contended that the court erred in permitting the state to introduce in evidence the testimony of Carter Barney given at the preliminary examination of the defendant. Barney was an eyewitness to the tragedy, and was one of the boys riding with the deceased just before the shooting took place. The record shows that a subpoena was issued and served upon Carter Barney, but that at the time of the trial he was at the home of his father, Frank Barney, in Kiowa county, confined to-his bed with an attack of measles, and there was introduced a certificate of an attending physician to the effect that the witness Barney was sick in bed and unable to attend the'trial, and that he was suffering at that time with the measles. 'Counsel admit that where the witness is out of the state or dead, his former testimony may be read in evidence, but contend that where the witness resides and is within the jurisdiction of the trial court, although sick and unable to attend at the time of the trial, his former testimony may not be read. The question here presented has been decided adversely to the contention of counsel for plaintiff in error in the case of Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, where it is held:

“The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary trial before a justice of the peace. When this has -been done, and upon a subsequent, trial of the -said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died, become insane, left the state, or that their whereabouts cannot with due diligence be ascertained, or are sick and unable to testify, the testimony of such witnesses given upon said former trial may be proven upon the subsequent trial.”

Finding no reversible error in the record, the judgment of conviction is affirmed.

DOYLE, P. J, and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    W. S. DOUGHERTY et al. v. STATE.
    No. A-3028.
    Opinion Filed May 19, 1919.
    (380 Pac. 720.)
    1. GAMING — Conducting Gambling Games. — Sufficiency of Evidence. The evidence in this case carefully considered and found insufficient to sustain the verdict found and the judgment thereon rendered.
    2. TRIAL — Severance—Discretion—Gaming. Under Bess. Laws 1916. see. 12, a severance in a prosecution for unlawfully conducting gambling games is not a matter of right on the part of a defendant, but rests entirely in the judgment of the court.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    W. S. Dougherty and Virgil Wilson were each convicted of unlawfully conducting prohibited gambling games, and they appeal.
    Reversed and remanded.

      James H. Mathers, J. B. Champion, and William Pfeiffer, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, W. S. Dougherty and Virgil Wilson, together with Dock Kennedy, who was found not guilty, and Jack Kennedy, who was not on trial, were jointly informed against for unlawfully carrying on and conducting poker games, roulette games, and other hanking, percentage, and gambling games, with cards and other gambling devices for money, checks, and other representatives of value and credits, in a building in the town of Wirt, in Carter county, convicted, .and each sentenced to one year’s imprisonment in the penitentiary at McAIester, and to pay a fine of $500, and the costs of this prosecution. To reverse the judgment rendered, they jointly prosecute this appeal.

The defendants filed a motion for a severance, which the court denied, and the defendants each excepted.

The information charges the defendant “with conducting prohibited games in the manner and form as follows, to wit: That Dock Kennedy, W. S. Dougherty, Virge Wilson, and Jack Kennedy did on or about the 27th day of January, 1917, unlawfully and feloniously open, conducted, and carried on poker games, roulette games, and other banking, percentage, and gambling games played with cards and other gambling devices, for money, checks and other representatives of value and credits” at a designated place in 'Carter county.

The defendants insist that they filed a demurrer to the information, which the court overruled, and the defendants excepted. The record does not disclose that such demurrer was filed, or that the court ruled thereon.

Jim Carter testified that he was a deputy sheriff of Carter county, and that about the time named in the information he, accompanied by Mr. Gauntt, raided the place described in the information; that when he got in seven or eight feet some one remarked, “Look out for the bank roll!” and they all jumped up; that when he entered the room a roulette wheel was in operation, and poker games were running with money and poker chips in front of the players on the table; that the room was full, there being 50 or 75 persons in it; that he had to go 25 or 30 feet to get to Dougherty, and in doing so passed 12 dr 15 persons, who were between him and Dougherty:-that Dougherty was at the roulette wheel, and five,, six, or seven persons were around the wheel; that Dougherty had some chips and money at the table, and put the money in his pocket; that witness had a conversation with Dough-erty, in which he asked him who was running the place, to which Dougherty replied, “Dock Kennedy,” who was in the room; that Virge Wilson was standing- at a table upon which there were some cards and an open sack of money, which Wilson grabbed and put in his pocket; that he got some money from a poker table; that he did not know those at the poker table; they were strangers; that the room was about 25 by 40 feet; that the only thing he saw Wilson do was he had a sack of money, but he did not know for what purpose or whose money it was, whiclx he put in his pocket; that he did not know whose • place it was, or who was running it; and that, at the time he got to Dougherty, Dougherty- was just picking up the money and putting it in his pocket; and that at that time he did not see any games being conducted.

Jim Gauntt testified that on or about the 27th day of January, 1917, he and Mr. Carter raided a place in the town of Wirt, in Carter county; that he saw Virge Wilson there; that he was sitting, at a table with a pack of cards lying on the table with a closed sack in front of him, which he put in his pocket; that no one was at the table with Wilson, and he was not doing anything;' that the table was a long table with a circle cut out of the middle of it; that Wilson was sitting in there, in a chair; that, when he saw Mr. Dougherty, Dougherty was talking to Mr. Carter; that Dock Kennedy was in the room; that there were quite a number of chairs and tables and a roulette table, and, when he saw the roulette wheel, Mr. Carter had it; that Mr. Carter went in first; that, when witness got in the room, there were 40 or 50 or more people in it, and all of them were “in a work and in a stew, all'over the building”; that he did not see any games .being conducted in the place; that he saw Wilson when he (witness) entered the place, but did not see Dougherty until possibly three or four .minutes afterwards; that when he saw Wilson he was not doing anything but sitting at the table; that he did not see Dougherty do anything, and did not hear what he said to Mr. Carter.

Upon the conclusion of the evidence for the state, the defendants demurred to the evidence “and prayed the judgment of the court.”

The defendants did not testify, but offered evidence and the cross-examination thereon did not tend to strengthen the evidence of the state.

The convicted defendants insist that the court erred in overruling their motion for a severance, and with this Contention we do not agree.

Section 12 of ch. 26 of the Extra Session Laws 1916, p. 54, the act under which this prosecution is conducted, reads:

“Persons jointly charged with the violation of any of the provisions of this act shall be tried together, provided the court for good cause shown may grant a severance.”

It thus appears that a severance in the instant case was not a matter of right on the part of the defendants, but rested entirely in the judgment of the court.

This prosecution is 'based upon section 1 of ch. 26 of said Session Laws, p. 54, which reads:

“Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employe, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than five hundred dollars, nor more than two thousand dollars, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”

The evidence shows beyond all reasonable doubt that a fully equipped gambling house was open at the place and time alleged in the information, and that therein a roulette wheel was being operated for money, and that poker games, with chips and money before the players, were being played, but there is no evidence that the convicted defendants or either one of them opened, caused to be opened, conducted, or operated said roulette wheel, or said poker games, or any one of the games, interdicted by law, or that said convicted defendants “dealt for others engaged in such games,” while there is undisputed evidence on the part of the state that another, other than said convicted defendants, conducted said place.

The evidence that said convicted defendants were, together with some 50 or 75 persons, in the said gambling house when it was raided, and that prohibited games were being conducted therein, and that one of them was, together with- five, six, or seven others, at the roulette wheel, and had money and checks, which money he put in his pocket, and the other was sitting alone at a peculiarly constructed table upon which there were cards and money, which money he put in his pocket, is not sufficient to show beyond a reasonable doubt that the convicted defendants, or either one of them, opened, caused to be opened, or conducted said roulette wheel or other gambling games for money, or “dealt (for those engaged in playing” any of the gambling games prohibited by said section 1, ch. 26, of Session Laws 1916, above quoted.

•Considering the demurrer to the evidence and prayer for “the judgment of the court” as in effect a request for a directed verdict, we think the evidence insufficient to support a conviction, and that the court committed reversible error in not instructing the jury to acquit the'defendants.

In Pickerell v. State, 5 Okla. Cr. 391, 116 Pac. 957, it is said:

“A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent-evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

“It does not make any difference how guilty a man is; he ought to be tried in a fair and impartial -manner, and according to law.” Jelts v. State, 7 Okla. Cr. 733, 123 Pac. 1131.

“While it is well settled that this court will not disturb the verdict on account of the evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.” Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.

“Where • the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof, and the court should direct a verdict under such circumstances.” Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260; High v. State, 2 Okla. Cr. 161, 101 Pac. 115, 28 L. R. A. (N. S.) 162.

As the error pointed out must result in the reversal of the case, we deem it unnecessary to review the several other errors assigned.

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

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


author: DOYLE, P. J.

text:
    TOM COLE v. STATE.
    No. A-3244.
    Opinion Filed May 19, 1919.
    (180 Pac. 713.)
    INDICTMENT AND INFORMATION — Intoxicating Liquors- — Duplicity. An information charging that defendant “did willfully and intentionally manufacture certain spirituous, -vinous, fermented, or malt liquors, or an imitation or substitute therefor,” is bad for duplicity.

      Appeal from County Court, Bryan County; Lewis Paullin, Judge.

    Tom Cole was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed, with direction to sustain demurrer to information.

      Victor C. Phillips and Porter Newman, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information herein charges that:

“Tom Cole, late of Bryan county, did in Bryan county, and in the state of Oklahoma, on or about the 5th day of November, in the year of our Lord one thousand nine hundred and sixteen, commit the crime of violating the prohibitory law in the manner and form as follows: That is to say, the defendant did in said county and state, at the date above named, unlawfully, willfully, wrongfully, and intentionally manufacture certain spirituous, vinous, fermented, or malt liquors, or an imitation or substitute therefor, with the unlawful intent on the part of the defendant then and there to violate section 3605 of the Revised Laws of Oklahoma, contrary to,” etc.

A demurrer to the information on the ground of duplicity, and that the same does not state facts sufficient to constitute a public offense, was duly interposed, overruled, and exception allowed.

Upon his trial the jury returned a verdict finding “the defendant Tom Cole, guilty as charged in the information, and assessed his punishment at a fine of $300 and six months in the county jail.”

From the judgment rendered on the verdict, an appeal was perfected by filing in this court on January 17, 1918, a petition in error with case-made.

The Attorney General has filed a confession of error in part as follows:

“Section 3605, Revised Laws 1910, is the statute which forbids the sale and manufacture of intoxicating liauors. "The decisions of our court on the sufficiency of a charge ior the sale of intoxicating liquors construing this statute are, of course, directly applicable to an information charging the manufacture of such liquors. The county attorney in this case followed and adopted the language of the statute. The sufficiency of this information can be easily determined by assuming such to be a charge for selling intoxicating liquors, 'by substituting the world 'sell’ for the word ‘manufacture.’ Then, in view of the decisions of our court passing directly on this question, we are not at liberty to consider such information sufficient to charge a public offense. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; also United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; State v. Billups, 63 Or. 277, 127 Pac. 686, 40 L. R. A. (N. S.) 308. R. C. L. vol. 15, at page 385, summarizes the rule as follows: ‘Since the liquor traffic is open to all in the absence of legislation on the subject, and since, therefore, offenses committed in the conduct of the business are, for the most part, purely statutory, prosecutions therefor would seem to fall within the general rule that, while an indictment for a purely statutory offense is usually sufficient if it charges the offense substantially in the wsords of the statute, still it must satisfy the fundamental rule of criminal procedure that the accused must be apprised by the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense.’

“In the Fletcher Case, supra, this court announced the rule of pleading an offense under this statute, in the following language:

‘Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360, reaffirmed, and the principles there announced declared to be the settled policy of this court.’

“ ‘In an indictment or information for committing a statutory offense, the indictment or information may describe the offense in the general language of the statute; but the description must be accompanied by a statement of the particulars essential to constitute the crime or offense with which the defendant is charged, and acquaint the accused with what he must meet upon the trial.’

“The information in this case is fatally defective. In view of the evidence introduced at the trial, the county attorney intended to charge the defendant with the crime oif manufacturing spirituous liquors by a method of distillation from some unknown substance containing alcohol as a by-product, by and through the use and operation of an apparatus, or plant known as a whisky still. The charge relating to the manufacturing of vinous and fermented or malt liquors is as equally indefinite as the charge of manufacturing spirituous liquors. Also the information is had by reason of the transaction being set forth in the disjunctive. The information, after reciting that the defendant manufactured spirituous, vinous, fermented, and malt liquors, continues by alleging the following: ‘Or [manufacture] imitations or substitutes therefor.’ The demurrer to this information should have 'been sustained. Therefore we request the court to reverse this judgment, with directions to the county attorney to file an amended information sufficient to charge this defendant with the offense of manufacturing spirituous liquors.”

In our opinion, the confession of error is well founded. The information is duplicitous, and in a charge for manufacturing spirituous liquors, which the testimony tended to prove, it is not sufficient to set forth said offense in the words of the statute, without allegations of the particulars of the alleged offense, or the manner or mode of manufacturing the same.

F.or the reasons stated, the judgment herein is reversed, with direction to the trial court to sustain the demurrer to the information.

ARMSTRONG and MATSON, JJ., concur.


text:
    GEORGE STANDFORD v. STATE.
    No. A-2783
    Opinion Filed May 19, 1919.
    (180 Pac. 712.)
    APPEAL AND ERROR — Review—Character of Witness — Testimony of Former Convict. A conviction based mainly upon the unsupported testimony of a confessed repeatedly convicted violator of' law. «lio is contradicted liv competent witnesses for the accused, and successfully impeached for truthfulness, will not he allowed • to stand, and it is reversible error under such record to overrule, a motion for a new trial.

      Appeal from' Cbunty Court, Kay County; Joshua L. Robinson, Judge.

    George Standford was convicted of a violation of the prohibitory liquor laws, and he appeals.
    Reversed and remanded.

      G. A. Chappell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, George Standford, was informed against for the illegal sale of whisky to Carl Perkins, convicted, and sentenced to imprisonment in the county jail for a period of, 30 days, and to pay a fine of $50 and the costs of this prosecution, and in the event said fine and costs are not paid at the ex-' piration of said 30 days, to be further, confined until said fine and costs are paid as provided by law. To reverse the judgment rendered, he prosecutes this appeal.

The evidence is that the prosecuting witness at the time 'and place averred in the information went with others in an automobile to near the home of the defendant, where the prosecuting witness left the car, and went in the direction of the home of the defendant, and shortly thereafter returned to the car, having several half-pint bottles of whisky, which were deposited in, the car, and the party then proceeded to Pickham, where, shortly after their arrival, they were arrested, and six half pints of Nentucky Club whisky found and seized by the sheriff, and put in evidence in this case, and their contents identified as whisky. That early the next morning the sheriff searched rhe residence of the defendant and did not find any whisky; but found three bottles of beer; that the defendant was then arrested and searched, and $10.50 in silver and two one dollar bills found upon his person, for which he gave the defendant $2 in silver, and retained the bills, which were introduced in evidence.

The prosecuting witness — the only witness to the alleged sale — testified that he was 22 years old; that at about 9 o’clock p. m. of the day stated in the information, he went in a car to near the house of the defendant, accompanied by others; that he left the car, the others remaining in said car, and proceeded to the home of the defendant, knocking at the door; that the defendant opened the door, and witness went into the house; that there was no light in the room, and that the defendant sold him some seven half pints of Country Club whisky, for which he paid him 4.50, paying the same in two $1 bills, three half dollars, and one silver dollar; that there was nobody in the house at the time except the witness and defendant; that the money to buy the whisky was furnished by Bell, with instructions to buy the same; that after buying the whisky he returned to the car, put the whisky in the car, and the party proceeded to Pickham, where shortly after their arrival they were arrested and confined in jail. The prosecuting witness further testified that he had been convicted three times, and had “laid out his fines” in the county jail; that he had ¡been twice convicted in the police court for being drunk, and “was now laying out a fine in the county jail.”

James Avery, night watchman and marshal, Jesse Fagin, John Welch, an automobile man, D. D. Cathall, a grain merchant, and Dr. Decker, each testified that they had resided for years in the community, knew the general reputation of the prosecuting witness for truth and veracity, and it was bad.

The defendant, his wife, and daughter each testified that the defendant did not make the sale of liquor to. Perkins as testified, and there were several witnesses who-corroborated the testimony of the defendant that he-was not at home on the 23d day of March, at the tim*-Perkins says that he purchased the whisky, but was employed in taking two strangers to Gueda Springs, in an automobile, leaving Newkirk about 7:30 p. m., and returning about 11 o’clock, and that the persons he took to Gueda Springs paid him $6, four in silver, and two $1 bills. The defendant further testified that he had never sold any whisky.

There was other evidence in the case which' we deem unnecessary to recite.

The defendant filed a motion for a new trial, upon the ground, among other grounds, that the verdict is contrary to the evidence. The court overruled each of said motions, and allowed exception.

The state relied mainly upon the testimony of Charles Perkins for a conviction. This witness was flatly contradicted by the defendant and another witness, and was successfully impeached for truthfulness by five witnesses of long residence and high standing in the community, and who had known the said witness for years, and the state did not attempt to sustain the truthfulness of said witness. Perkins in his testimony admitted that, he had been repeatedly convicted, and had served sentences in the city and in the county jail, and that at the time he testified in this case he was “laying out a fine in the county jail.” In addition we think that the defendant by evidence fully sustained his contention that he was not at home at the time Perkins testified that he bought from him the whisky which it is alleged in the information that the defendant sold to Perkins.

We are of the opinion that under the record in this case the conviction of the defendant should not be permitted to stand, and that the trial court committed reversible error in overruling the motion for a new trial. Green v. State, 6 Okla. Cr. 585, 120 Pac. 667.

As the error pointed out must work a reversal, we deem it unnecessary to consider any of the other errors ■assigned.

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

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


text:
      Ex parte ED EXELTON.
    No. A-3544.
    Opinion Filed May 20, 1919.
    (180 Pac. 868.)
    1. JUDGMENT AND SENTENCE — Rearrest—Service of Unexecute# Judgment. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape, and ordered into custody on the unexecuted judgment.
    2. SAME — Sentence—Expiration of Time. Expiration of time without imprisonment is in no sense an execution of the sentence.
    Petition (by Ed Exelton for writ of habeas corpus„
    Demurrer to petition sustained, and writ denied.

      Glaseo & Glaseo and C. G. Moore, for plaintiff in error.

      W. C. Hall, Asst. Atty. 'Gen., for the State.
   DOYLE, P. J.

Petition filed on behalf of Ed Exelton alleges, in substance, that he is illegally restrained of his liberty and unlawfully imprisoned in the county jail of McClain county by Johnnie E. Ratliff, sheriff of said county, and sets forth that petitioner was tried and convicted in the county court of said county for a violation of the prohibitory liquor law, and was sentenced on the-day of June, 1918, to be confined for 30 days in the county jail and to pay a fine of $100 and the costs; that petitioner was given 60 days to perfect an appeal from said judgment, and his supersedeas bond was approved; that said time elapsed without an appeal being perfected, and petitioner offered to surrender himself to the sheriff of McClain county for the purpose of then and there abiding the judgment of the court; that petitioner in no way was a fugitive from the judgment and conviction in said cause; that on the 11th day oif May, 1919, petitioner was taken in custody by said sheriff on an order of commitment for the purpose of enforcing the judgment and sentence of conviction herein referred to.

■Counsel for the state filed a general demurrer on the ground that said petition does not state facts sufficient to entitle the petitioner to the relief prayed for.

In the case of Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967, it is held:

“Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape, and ordered into custody on the unexecuted judgment.”

Expiration of time without imprisonment is in no sense an execution of the sentence. Upon the undisputed facts it appears that when the county court ¡of McClain county issued the order of commitment, there was a valid subsisting unexecuted judgment against the defendant, and while the-defendant was at all times within the juris-diction of the court, upon his failure to perfect an appeal he did not demand that a commitment issue on said judgment and sentence, in order that the same might be carried into execution. The judgment being valid and the 'sentence unserved, the commitment of petitioner in execution of the judgment is a legal and valid imprisonment.

For the reasons stated, the demurrer. is sustained, and the application for writ of habeas corpus denied.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
      Ex parte WESLEY HODGES.
    No. A-3172.
    Opinion Filed May 20, 1919.
    (180 Pac. 717.)
    HABEAS CORPUS — Petition—Sufficiency. A petition for habeas corpus, averring that petitioner was unlawfully held under a commitment upon a judgment on a ’“■‘uflict finding him guilty of perjury, and that facts stated in information did not constitute a criminal offense, so that court was without jurisdiction to try or sentence him, did not state facts entitling him to the writ.
    Petition by Wesley Hodges for a writ of habeas corpus.

    Dismissed.

      Beckett & Roland, for petitioner.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, Wesley Hodges, filed his petition for a writ of habeas corpus in this court by mail, wherein it is averred that he is unlawfully held under a commitment issued out of the superior court of Ok-mulgee county upon a judgment rendered in said court upon a verdict finding said petitioner guilty of the crime of perjury.

It is further averred that the facts stated in the information upon which he was convicted do not constitute a criminal offense, and for this reason the court was without- jurisdiction to try, sentence, or imprison petitioner thereunder.

Counsel for the state have moved to dismiss said ■cause for the reason that said petition does not state facts sufficient to entitle the petitioner to the relief prayed for.

The motion to dismiss is sustained, and the cause is dismissed.


author: MATS'ON, J.

text:
    FRANK DANNA v. STATE.
    No. A-3065.
    Opinion Filed May 20, 1919.
    (180 Pac. 869.)
    .APPEAL AND ERROR — Perfection of Appeal — Extension of Time— Misdemeanor Cases. In misdemeanor cases the appeal must be perfected within 60 days after the judgment is rendered, unless the trial court or judge, for good cause shown, extends the time within the limits prescribed by section 5991, Rev. Laws 1910:. Where no order is made extending the time within which as appeal in misdemeanor cases may he taken and the appeal is not lodged in this court within 60 days after the rendition of judgment, this court has no jurisdiction to entertain the appeal, and the same will be dismissed.

      Appeal from, County Court, Choctaw County; W. T. Glenn, Judge.

    Frank Danna was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed and cause remanded, with direction to. enforce judgment.

      M. W. Gross, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATS'ON, J.

Plaintiff in error, Frank Danna, was convicted in the county court of Choctaw county of the crime off unlawfully conveying intoxicating liquors from one • point in said county to another point therein, and his punishment fixed at imprisonment in the county jail for a period of six months and to pay a fine of $500 and the -costs of the action.

To reverse this judgment, an appeal was attempted to be made by filing in this court on the 5th day of July, 1917, a petition in error with case-made attached. The judgment of conviction was rendered on the 20th day of April, 1917.

Section 5991, Revised Laws 1910, provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may. for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

A careful examination of the case-made fails to disclose that the trial court or judge made any order extending the time in which to perfect the appeal beyond the statutory period of 60 days. This court has uniformly held that the appeal must be perfected within the time prescribed by the statute where no order extending such time has been made; otherwise, this court does not acquire jurisdiction to review the judgment. Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.

For the reasons stated, the purported appeal is dismissed, and the cause remanded to the trial court, with directions to enforce its judgment.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    R. T. YOUNG v. STATE.
    No. A-2939.
    Opinion Filed May 24, 1919.
    (180 Pac. 872.)
    APPEAL AND ERROR — Escape Pending Appeal — Dismissal. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case. And where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, this court will, on proper motion, dismiss the appeal.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

    R. T. Young was convicted of murder, and he appeals.
    Appeal dismissed.

      R. B. Thompson and Asp, Snyder, Owen & Lybrand, for plaintiff in error.

      S. P. FreeMng, Atty. Gen., and W. C. Hull, Asst. Atty. Gen., for the state.
   DOYLE, P. J.

Plaintiff in error, R. T. Young, together with Hannah Young, James Fisher, and J. E. Hart-zog, were, by information filed in the district court of Ok-mulgee county, jointly charged with the murder of L. B. Williams, alleged to have been committed in said county on or about the 10th day of July,, 1914. To this information the defendant, R. T. Young, Hannah Young, and J. E. Hartzog pleaded not guilty, and filed their application for a change of venue, which was granted, and the cause transferred to Creek county.

A severance was granted. At the September, 1916, term, of the district court, the defendant, R. T. Young, was tried, and on September 16, 1916, the jury rendered their verdict, finding him guilty of murder as charged in the information, and assessing his punishment at imprisonment for life at hard labor. A motion for new trial was duly filed and overruled, and judgment was rendered in pursuance of the verdict,

From the judgment an appeal was perfected by filing in this court on February 26, 1917, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that plaintiff in error has become a fugitive from justice.

It appears that, after the final submission of the cause, plaintiff in error was, on the 23d day of April, 1918, granted a temporary parole by the Governor of the state for 90 days, for the purpose of having a surgical operation performed; that at that time plaintiff in error was suffering from a cancer on his neck. The warden of the penitentiary reports that he failed to return at the expiration of his parole. More than a year having elapsed since plaintiff in error was granted said parole, and .his counsel having stated that his whereabouts are unknown, it is apparent that plaintiff in error has escaped and is a fugitive from justice.

Where a fugitive has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case. And where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, the appeal will be dismissed. See Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515.

Upon the uncoritroverted facts the plaintiff in error has waived his right to have his appeal in this case considered and determined. The appeal is therefore dismissed, and the cause remanded to the district court of Creek county.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    W. E. CARRICO v. STATE.
    No. A 3223.
    Opinion Filed May 24, 1919.
    (180 Pac. 870.)
    1- INTOXICATING LIQUORS — Unlawful Transportation — 'Sufficiency of Evidence. Evidence carefully examined, and lield wholly insufficient to sustain the conviction in this case.
    2. PARTIES TO OFFENSES — Criminal Liability — “Party to Crime.” To constitute one a party to a crime, it is necessary that such person be concerned in its commission. He must either commit it, or aid and abet in 'its commission, and it is not sufficient that he merely acquiesces therein with knowledge that another is committing the offense.

      Appeal from County Court, Oklahoma County; William H. Zwiclc, Judge.

    W. E. Carrico was convicted of the crime of unlawfully conveying intoxicating liquor, and sentenced to pay a fine of $50 and to serve 30 days’ confinement in the county jail, and he appeals.
    Reversed and remanded.

      H. F. Tripp, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Among other assignments of error urged as grounds for a reversal of this judgment is that the trial court erred in not advising the jury to acquit the defendant because there was no evidence to establish his guilt sufficient to support the judgment of conviction.

On behalf of the state, E. P. Gallup testified, in substance, as follows: That he resided in Oklahoma City, Okla., and during April, 1917, was captain of police of Oklahoma City; that on April 14, 1917, between.the hours of 3 and 4 o’clock a. m., he, in company with Officers Baker, Wilkerson, and Bittle, went to Twenty-Third street and Grand boulevard, in said county, in answer to a telephone call, and, after waiting there a short time, saw J. H. Moore and W. E. Carrico coming west on Twenty-Third street in a Hudson car; that they stopped the car, searched it, and ifound 40 quarts of whisky; that the whisky was branded “Hickory River,” and wias being carried in two sacks in the rear of the tonneau of the car; that'Moore was driving the car, and Carrico was sitting in the seat beside Moore in the front of the car; that they placed both Moore and Carrico under arrest, and brought them to the police station; that the defendant, Carrico, made no statement after his arrest. The witness also identified, the bottles of whisky seized on that occasion, which were afterwards admitted in evidence.

C. M. Baker testified, in substance, as follows: That he was a police officer of Oklahoma City, and was present with the other officers at the time and place of the arrest of W. E. Carrico; that Carrico was sitting in the automobile beside J. H. Moore; that they found whisky in the car; that Moore was driving the car, and that Carrico was riding in the car; that Moore claimed the whisky.

D. Wilkerson testified, in substance, as follows: That he was a police officer in Oklahoma City, and was present when Carrico was arrested; that Moore was driving the car; that they found the whisky in the car; and that Car-rico was riding in the car.

The state’s evidence was here concluded.

W. E. Carrico, defendant, testified, in substance, as follows: That he was one of the defendants in this action; that he was acquainted with Moore, the other defendant; that for four days prior to April 14, 1917, he had ¡been visiting at his father’s home in McCloud, Okla.; that on the 14th day of April, 1917, he was standing on Main street in the to.wn of McCloud between 12 and I o’clock a. m., on said night, waiting for a train to come back to Oklahoma City; that he knew Moore pretty well at that time, and that Moore asked him if he was going to Oklahoma City; that he told Moore that he was, and Moore told him to get in the car, and that during the course of the ride to Oklahoma City Moore told him that there was whisky in the car; that he did not aid in the transportation of the whisky; that Moore owned the car, and that he (Carrico) did not at any time drive, steer, or assist in propelling the car; that he did nothing except sit in the car.

On cross-examination he testified, in substance, as follows: That he first saw Moore that night at McCloud, Okla.; that he first' saw him on Main street as he came in from the east at about 12 or 1 o’clock at night; that he (Carrico) was then standing in front of a garage talking to a night watchman' while waiting for a passenger train to come to Oklahoma City, Okla.; that he saw Moore, and called to him, and he stopped in the middle of the street; that he told Moore he was waiting for the train, and that Moore told him to get in and ride up to Oklahoma City with him; that at the time he got in the car he did not know where Moore had been; that they were about ten miles from McCloud when he found out there was whisky in the car.

On redirect examination, the witness was asked, “Did you do anything to aid or assist him in transporting the whisky?” to which he replied, “No, sir.”

J. H. Moore, testified, in substance, as follows: thac he was the other defendant named in the information filed in this cause; that he had pleaded guilty to said charge; that he first saw W. E. Carrico on the night of April 14, 1917, at McCloud, Okla.; that he owned the -automobile in question and had this whisky in that ear; that he was coming to Oklahoma City; that he saw Car-rico on Main street at McCloud; that Carrico asked him where he was going; he told him to Oklahoma City; that Carrico said he had been down at his father’s, his father was sick, and he said that he was waiting for the train, and witness said, “Get in,” and he got in; that witness did not tell him at that time that he had whisky in the car; that nothing was said about whisky until they were ■eight or ten miles from McCloud; that he (Moore) then told Carrico that he had “stuff” (meaning whisky) ; that Carrico sat in the car and slept; that he did nothing toward steering or propelling the car, nor did he (Carrico) aid in the transportation of that whisky; that he (Carri-co) was not in any way interested in the ownership of the whisky, or in the ownership of the car.

On cross-examination Moore testified that he went over to Shawnee about dark on' the evening of^ the 13th, and got the whisky for a man by the name of Buchanan, who "■.as to meet him on the outskirts of Shawnee with the whisky, and pay him $20 for hauling it to Oklahoma City, Okla.; that Carrico did not know anything about him hauling this whisky, and got in the car as a passenger at Moore’s request.

The evidence on the part of the state in substance proves that W. E. Carrico, when arrested at Twenty-Third street and Grand boulevard in Oklahoma county, Okla., was riding in an automobile with one J. H. Moore; that Moore was driving the car; that 40 quarts of whisky were found in the back part of the car; that Carrico was not seen to do anything toward driving the automobile or aiding or assisting Moore in any way with the conveyance of the liquor, except that he was riding in the car with Moore.

On behalf of the defendant the undisputed evidence is that Moore had got the whisky near the town of Shawnee, and had transported it from that point to the town of McCloud, some several miles away, before Carrico got into the automobile; that Carrico got into the automobile solely for the purpose of riding to Oklahoma City; that before he got into the automobile he had intended to take a train from the town of McCloud into Oklahoma City; that at the time he got into the automobile he had no knowledge that Moore had whisky in the car, and that he did not know where Moore had been, and was not expecting him on that occasion; that he made the trip to Oklahoma City solely as a passenger with Moore; that he had no interest in the whisky or in the ownership of the automobile, nor did he assist Moore in any way in driving or propelling the car from McCloud up until the time of the arrest. ,

The other defendant, J. H. 'Moore, testified that he was the guilty party, and that Carrico had nothing, whatever to do with the transportation of. the whisky; that Carrico had no ownership in the car or the whisky, and did not know that Moore was transporting whisky until he had ridden with him a distance of ten miles or more.

Under the foregoing synopsis and analysis of the evidence, it is apparent that there is no evidence in this record which tended to prove any element of guilt against the defendant, W. E. Carrico, except that he was present and riding with the defendant J. H. Moore at the time the offense was committed, and that he rode with the defendant J. H. Moore some several miles after he had been informed by Moore that there was whisky in the automobile.

This judgment of conviction can only be sustained upon the theory that the jury undoubtedly thought that, after Carrico had learned that Moore was transporting whisky, he should have abandoned his plan to ride to Oklahoma City in the automobile. The only theory upon which Carrico can be convicted of unlawfully conveying this liquor is that he aided and abetted the defendant Moore in its conveyance. The proof on the part oif the state shows that Moore was the person to whom the automobile belonged, and was driving same at the time of the arrest. There is nothing in the testimony of the state’s witnesses to show that Carrico in any way actively aided, abetted, or encouraged Moore in the unlawful conveyance of this liquor. At most, the evidence only tends to prove that, after Carrico learned that Moore was engaged in the unlawful conveyance of intoxicating liquor, he (Carrico) silently acquiesced therein.

Mere acquiescence is not sufficient to establish guilt. It must be shown either that the defendant committed the offense, or that he aided, abetted, or assisted in its commission, or that he procured it to be done. Moore et al. v. State, 4 Okla. Cr. 212, 111 Pac. 822; Ridley v. State, 5 Okla. Cr. 525, 115 Pac. 628; McCarthy v. State, 6 Okla. Cr. 484, 119 Pac. 1020.

In the case of Moore et al. v. State, supra, it is said that:

To constitute one a party to a crime, it is necessary that such person be concerned in the commission of the offense; that is, that he either commit it or aid or abet its commission; and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, a'bet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.”

A careful examination of all the evidence in this case convinces the court that the same is wholly insufficient to sustain the conviction and that it would be a miscarriage of justice to permit this conviction to stand in view of the fact that there is no evidence of an incriminating nature sufficient to warrant it.

While Carrico is subject to severe criticism for continuing to ride with Moore after he learned that Moore was engaged in the unlawful offense of conveying intoxicating liquor, still that fact alone would not justify his conviction on the ground that he aided and abetted the said Moore in said act. All Carrico could have done after Moore informed him that he was conveying liquor was to get out of the automobile and walk some 14 or 15 miles into Oklahoma City, or else walk to the nearest railroad station. Such action on his part would have relieved him of even a suspicion of evil. But the fact, however, that he did remain in the car and did ride the balance of the distance to Oklahoma City, after being informed that Moore was violating the law, is not in itself such an aiding or abetting or assisting in crime as would render Carrico subject to conviction as an accomplice.

It is our opinion, therefore, that the court erred in not sustaining the motion of the defendant to direct the jury to return a verdict in his favor. At most, the circumstances detailed by the state’s witnesses only create a suspicion of guilt, and do not constitute sufficient proof of the material ingredients of the offense to establish the defendant’s guilt 'beyond a reasonable doubt.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the county court of Oklahoma county, with instructions that the same be dismissed, unless, in the opinion of the trial court, the state may on a subsequent trial produce other and additional evidence to establish the guilt of the defendant of the offense charged.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    P. W. HOLDEN v. STATE.
    No. A-3220.
    Opinion Filed May 24, 1919.
    (180 Pac. 969.)
    INTOXICATING LIQUORS — Unlawful Sale — Conviction — Evidence The entire record in this case carefully read and examined, and found that the verdict of the jury and the judgment rendered thereon are fully in accord with the undenied evidence in the case, and that no fundamental error was committed in the trial of the cause. ■

      Appeal from County Court, Oklahoma County; William H. Zwick, Judge.,

    P. W. Holden was convicted of selling intoxicating liquors, and be appeals.
    Affirmed.

      Harlan T. Dupree, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for tbe State.
   ARMSTRONG, J.

The plaintiff in error, P. W-Holden, was by information jointly charged with Harry Boys with the unlawful sale of intoxicating liquors, tried separately, convicted, and sentenced to be imprisoned in the county jail of Oklahoma county, to pay a fine of $256 and the costs of this prosecution, and, in default of said payment of such fine and costs, to be further confined in said jail until said fine and costs were satisfied as by law provided. To reverse the judgment rendered, he prosecutes this appeal.

The defendant filed an elaborate motion for a continuance on account of absent witnesses, which motion we deem unnecessary to set out in extenso. The court overruled the motion, and the defendant excepted.

The defendant objected to the introduction of any evidence upon the ground "that the information fails to charge any offense under the law committed by defendant P. W. Holden.” The court overruled the objection, and the defendant excepted.

The material evidence, which is not contradicted, is: That the defendant at the time alleged in the information was operating a rooming house on North Broadway in Oklahoma City, and that three young country men became his guests for hire and were assigned to and occupied the same room in said rooming house for a night; that before retiring one of them asked the defendant if he had any whisky, and defendant replied “that he had no selling whisky, but would have some the following day, and that he had some $9 goods which retailed for 25 cents a drink”; that one of said men, Thompson, while occupying said room, lost some $21, and complained of Ms said loss to the defendant; that defendant said he could not help it, and that thereupon the said Thompson and his companions complained to police headquarters, and were there advised to go and buy some whisky from the defendant and then have him arrested; that the police gave Thompson a marked dollar with which to make such purchase, and that Thompson, still accompanied by his associates, one of whom went into the rooming house with him, the other remaining at the foot of the stairs by which said rooming house was entered, found the said defendant, and applied to him for whisky; that the' defendant told Thompson to wait; that he did wait some five, or six, or fifteen minutes; that the defendant went into a room, got a half-pint bottle of whisky, and, through one Boys, delivered the same to Thompson, who paid for the same with the marked dollar and received 25 cents in change; that he then went down the street, and was met by an officer who was waiting there, and who took charge of the said bottle that had been sold Thompson, and immediately thereafter raided said rooming house and found therein other whisky; that the said officer arrested and searched the defendant, and found on his person a small bottle' of whisky and the said marked dollar. The bottle and contents sold to Thompson were offered m evidence, and testimony given showing that the said bottle and contents were in the same condition as when the officer received the same from Thompson, and that its contents was whisky. '

Upon the conclusion of the evidence for the state, the defendant demurred thereto, which demurrer the court overruled, and the defendant excepted.

The defendant did not testify in the case or offer any material evidence tending to exonerate him of the offense charged, but devoted his efforts to a most extensive cross-examination of some of the witnesses for the state upon immaterial matters.

We have carefully considered the information, and find that it sufficiently charges an offense under the law, and that the court did not err in overruling the objection of the defendant to the introduction of evidence.

The defendant predicated his right to a reversal upon two propositions: First, that the court erred in overruling the motion for a continuance; second, that the verdict of the jury is not supported by the evidence.

It does not appear from the record that the absent witnesses named in the motion for a continuance have ever been summoned by the defendant, and in the motion the whereabouts of the absent witnesses are averred to be unknown, or so located as not to support with any degree of force the theory advanced by the defendant that he could have said witnesses present at the next term of court. If the absent witnesses had been present and testified as averred in the motion the defendant believed they would, we are impressed with the opinion that their evidence would not have shaken the evidence of the state so as to have worked out an acquittal of the defendant. We are at a loss to understand how it can be reasonably contended that the court abused its discretion and erred in overruling the motion for a continuance.

“An application for a continuance on account' of absent witnesses is addressed to the discretion of the trial court, and a judgment of conviction will not be reversed on the ground that the court refused to grant such continuance, unless there appears to have been a manifest abuse of discretion.” Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475; Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800; Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277.

The evidence abundantly justifies the conviction of the defendant, and there is not the slightest basis for the contention of the defendant that “the verdict of the jury is not sustained by the evidence,” and the court did not err in overruling the demurrer to the evidence, even if such demurrer be regarded as a request for a directed verdict.

The court did not err in overruling the motion for a new trial.

Finding the evidence fully supports the verdict and judgment rendered, and the record free from prejudicial error, and that defendant has had a fair and impartial trial, the judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J., concur.