text:
    RICHARD E. THACKER v. STATE.
    No. A-8574.
    Oct. 27, 1933.
    Rehearing Denied Nov. 17, 1933.
    (26 Pac. [2d] 770.)
    Ben F. Williams, Ben C. Arnold, T. R. Benedun, and Homer Cowan, for plaintiff in error
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder, and his punishment fixed at imprisonment in the state penitentiary for life.

The evidence on the part of the state, in substance, shows that the defendant maintained an office and operating rooms in the Terminal building, Oklahoma City. In the early part of April, 1932, Ruth Hall, a single and unmarried woman, discovered she was pregnant, and in company with Helen Wright, a girl friend, went to the office of defendant; Helen Wright states that apparently, at the time they went to the office of defendant, Ruth Hall was in good physical condition; she had seen her frequently for several months prior to> the day they went to defendant’s office; at the time she Avent to' defendant’s office Ruth Hall was on her vacation, and the purpose of this visit was to see the defendant and to make arrangements to go back to the defendant’s office, and he told Ruth to come back at- noon the next day—

“I Avent Avith Miss Hall to defendant’s office Wednesday noon; before we Avent to defendant’s office Miss Hall made arrangements to borrow some money; Margy Brown also accompanied Miss Hall and myself to the office; Miss Hall and I went into the private office where there Avas an operating table; Miss Hall paid defendant some money, the exact amount I do not know, and then got on the operating table at defendant’s request. She was on her back Avith her knees up; defendant used a long slender instrument, and then packed her Avith gauze; I guess he packed her womb; I saw him insert the instrument into her private parts; he did not make any examination before he used this instrument, nor did he take her temperature; he did not test her heart or feel her pulse. If he asked anything about her condition I did not hear it; we Avere in a small narrow room; she asked him when to remove the gauze, and he said 24 hours.
“When we left there were some other women in the office. Miss Brown left with us; we later went home with Miss Hall and I staid four hours with her; I saw her again Thursday at 607 West Tenth street; Miss Benne and I slept in the room with Miss Hall that night; that night she became ill and I think something happened; she got up and went to the bathroom, and later on there was quite a bit of blood on the bed; I left Miss Hall’s room about 10 o’clock the next morning. I never saw her after that.”

Elma Benne stated:

“Ruth Hall roomed with me during the month of April, 1932; I lived at 607 West Tenth street; she was employed at the telephone office; I think she was about 22 years of age; I came to the city Wednesday morning prior to the death of Miss Hall with Margy Brown, Helen Wright, and Ruth Hall; I saw Ruth that evening when she came home; I understood Wednesday morning she was pregnant; Helen Wright spent Thursday night with Miss Hall; she came there about 6 or 7 o’clock in the evening; I examined the bed after Miss Hall left where we were living and there was blood on the bed; a spot the size of two hands; Friday morning a form passed; prior to this form passing Ruth suffered quite a bit, afterwards she seemed to feel a little better; up until the 4th or 5th of April, 1932, Ruth Hall was in good condition; she was working all the time; she had been on her vacation two days prior to the Wednesday of which I have spoken; during the time Miss Hall was sick at our room there was no doctor called or visited her; her brother came for her and took her to her father and mother’s home.”

Margy Brown on behalf of the state testified she lived at 118 East Ninth street, Oklahoma City, Okla.; she was 19 years of age, single and unmarried; she knew Ruth Hall about a year and a half prior to her death'—

“I was not rooming with her in April, 1932; I went with Ruth Hall to defendant’s office on or about the 5th of April, 1932; her physical condition was good; I only went into the reception room; defendant was not in when we got there; we sat down and waited until he came in; defendant called Miss Hall into the private room and they were there about five or ten minutes; Ruth said she was pregnant at that time; I do not know what happened in the office except what Miss Hall told me; when they came out of the private room Mrs. Thacker came in. Miss Hall went to her home Friday or Saturday, I could not say which day.”

Mrs. George Hall, the mother of Ruth, testified as follows:

“Ruth was working for the Southwest Bell Telephone Company, in April, 1932; she was rooming at 607 West Tenth street; Ruth came home every Saturday; we live at Bethany; her general condition of health was good the week prior to the Saturday her brother went in and brought her home; she was sick when she reached home about 4 or 5 o’clock in the afternoon; I did not find out what the trouble was until about 11 o’clock; I called Dr. Vaughn, our regular physician; he did not give her a treatment; later I talked with him over the phone.
“When I phoned defendant, I stated: ‘This is Mrs. George Hall, at Bethany. Do* you remember a girl coming to your office by the name of Ruth Hall?’ He said he did not remember her, that she was not there. ‘Well’ I said, ‘She is sick and we want you to- come out and see her.’ He said, ‘What is the trouble,’ and I said, ‘You know what is the matter with her, come out right away.’ He said, ‘I haven’t got any way to get out there.’ I told him I could tell him a way. He said he would have to get a taxi. I did not care how he got there, all I wanted was for him to come. He acted like he was not going to come, and I said, ‘You will wish you had. You had better come on out here if you know what is good for you.’
“Defendant came out; my daughter was in a back bedroom, and I went with him to her room; I don’t think he asked any questions about her physical condition; he asked what was the matter; she smiled at him and did not say anything; he had taken her temperature and she did not have any fever at all.
“He opened up his case to get his instruments and started in like he was going to' work on her without sterilizing his instruments or washing his hands; I asked him if he was not going to sterilize his instruments or wash his hands; he said, ‘I guess I had better;’ he washed his hands, but did not sterilize his instruments; he took out an instrument of some kind, and used that on her; he used that to dilate her vagina, then used a swab with cotton and stuck that in a bottle that contained iodine and swabbed her out with it; after he treated her he sat at the foot of the bed and talked with us for some time. He said, ‘This is something I certainly do not approve of; I told the girl this when she came to the office and wanted help, but I could not turn her down. It seems like the more I try to help people lately the most of them get into worse trouble;’ he said if his wife knew this ‘she would kill me. I feel like sometimes going and jumping in the river, and if I had I would be better off.’ He further said, ‘Before I do- anything like this again, the husbands will have to come with the wives, or the mothers with the daughters.’
“I asked him about getting another doctor, and he said he did not think it necessary. She died Friday evening. I called Dr. Yaughn, and he would not come. I called Dr. Ferris and defendant; Dr. Ferris got there first, then the defendant came. She was dead when defendant got there.”

Over the objections of the defendant, the court permitted a number of witnesses to testify that defendant, subsequent to the abortion performed on Ruth Hall, had performed abortions on Robbie Lou Thompson, Lennis May Roach, and Nancy Joe Seay Lee, and permitted the witnesses to go into detail as to the condition of the parties named after it was claimed the abortions were performed, up to and including the death of each of them.

The defendant, testifying in his own behalf, admits that Ruth Hall came to his office, but denies he performed an abortion upon her-, stating' when she came to his office the abortion had been performed, and she told him the doctor who' had performed it was out of the city, and she wanted him to treat her, and he did. He admits he was called to the home of Ruth Hall by her mother, but denies he made any statement directly or indirectly admitting, he performed the abortion upon the deceased, Ruth Hail.

Defendant testified that a Mr. Erdman came with Robbie Lou Thompson to his office to consult him—

“I examined Miss Thompson and found her in rather a serious, condition; I advised she be taken to a hospital immediately where she could have attention; they left my office, and about 12 o’clock in the night Mr. Erdman called and asked me to come out to' Mrs. Moore’s where they were stopping; when I got there they had gone; Erdman soon came back and told me Miss Thompson had died on the road to the hospital; he wanted me to make out the death certificate; he prevailed on me to falsify that a little bit in order to protect her; I made out the certificate showing she died from acute gastritis. I was never paid for my services. I did not operate on Miss Thompson.
“Frank Roach and Lennis May Roach came to my office several times; Mrs. Roach was in bad health and emaciated; she was suffering from leucorrhea discharge, and had pains in her lower abdomen and was in a bad condition; I treated her by using antiseptic tampons and giving her a tonic; I did not perform an abortion on Mrs. Roach.”

Defendant further stated he first met Frank Lee some time about noon Saturday, April 23, 1932; he said his wife had chronic appendicitis, and. had had it for a long time; he brought his wife to the office about 2 o’clock that afternoon—

“I treated her by putting a sedative into the vagina and had her take a laxative; I directed him to take her some place for observation, a hospital or a nurse; the purpose of this suppository or sedative tampon was intended to relieve the pain, and I followed it up with gauze, as it was literally necessary for something to retain it in the vagina; I did not examine her uterus; I never saw her after that time; I gave him the number of a place he could take her where the expense would be reasonable. I did not perform an abortion on Mrs. Lee.”

Defendant, further testifying, stated that a sister of Miss Hall had threatened to have him prosecuted, demanding of him that he pay the funeral expenses, and, he declined to do so, telling her he had done all he could for the girl. He stated when he left Oklahoma City he went to his brother-in-law’s ranch near Amarillo, Tex., where he went under the assumed name of Miller. Later he went to Springdale, Ark., where he was arrested. Defendant testified he had arranged and was going to return to Oklahoma City the night after he was arrested in the afternoon.

All of the testimony introduced on behalf of the defendant is a denial of the performance of an abortion upon Ruth Hall, or either of the women mentioned in the record. The evidence with reference to' the other abortions mentioned in. the record as stated by the court, was introduced for the purpose only of showing the custom, schemes or plans, if any existed, or the unlawful intent or motive, or to explain a particular course of action. The court further stated to' the jury that if it did not find such evidence as may have been admitted tending to connect the defendant charged with the case on trial, then it would be its duty to disregard the same.

Seventeen errors have been assigned by the defendant as grounds for reversal. The defendant has at length and urgently discussed the question of the admission of the evidence of other similar crimes committed by the defendant, and has presented a forceable argument in support of his objection to the admission of any evidence tending to show the defendant guilty of other crimes similar to the one upon which he was being tried. Defendant, in support of his contention that the court erred in admitting evidence with reference to other abortions that the state claimed had been committed by this defendant, cites Smith v. State, 5 Okla. Cr. 67, 118 Pac. 204, in which the court said:

“The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses.”

The defendant admits there are exceptions to this rule, but insists that the evidence in this case does not bring the defendant within the exceptions of the rule, and that the evidence admitted was prejudicial to the rights of the defendant, and that the admission of the testimony of other abortions was sufficient to reverse the case and grant him a new trial.

It is not disputed that in this case it was necessary for the state to' prove to the jury, beyond a reasonable doubt, all of the material elements of the crime in order to constitute murder. It was necessary for the state to prove that the deceased died from the result of the abortion performed on her by this defendant. It was also incumbent upon the state to prove that defendant committed an assault with some kind of an instrument into the private parts of the deceased, and that the purpose of such was to produce an abortion and that an abortion resulted therefrom, and that the abortion was the proximate cause of. the death of Ruth Hall, and that deceased was pregnant at the time and it was not necessary to perform the abortion in order to' save the life of the deceased. However, the state is not required to prove this element by positive testimony, but may show it by circumstantial evidence.

The defendant further urges that the admission of testimony of other abortions, as shown by the record, does not come within any exceptions to the general rule— citing Emerson v. State, 18 Okla. Cr. 109, 193 Pac. 743, and Clark v. Commonwealth, 111 Ky. 44.3, 63 S. W. 740.

The question of the admission of the abortions performed on the parties named in the record within a short while after the abortion alleged to have been performed on Ruth Hall, which brought about her death, seems to be the most important question relied upon by the defendant for a reversal. The defendant in his argument urges an abortion had already been performed upon Ruth Hall before she came to his office. The state’s testimony contradicts this fact. In fact the defendant’s testimony is in direct conflict with all the testimony introduced by the state on the question of whether or not the defendant in this case performed an abortion on Ruth Hall. The theory of the state in its evidence of abortions performed on others shortly after the abortion was performed on Ruth Hall is that it tends to' show the method and practice of the defendant, and further tends to show that the defendant was engaged in the practice of performing abortions upon women who' became pregnant and did not desire to have the disgrace of it becoming known. The state insists that the proof of separate abortions performed by the defendant shortly after the alleged abortion on Ruth Hall, and the method employed to perform them, was practically identical as used on Ruth Hall.

The state insists that the proof of separate abortions performed by the defendant on other women, occurring shortly after the alleged abortion on Ruth Hall, is admitted to show the methods employed to> perform them were practically identical in each case. The state urges that the evidence of other abortions shows conclusively that defendant was a professional abortionist, and the state further urges that he employed a certain treatment in producing an abortion, and when he treated Ruth Hall he intended to produce an abortion and not merely a vaginal treatment, and that any evidence relevant in proving such abortion was accomplished, and proof of the system employed by defendant in every instance of the other abortions tends to establish the fact that an abortion was performed by the same treatment in this case as in the others —citing the following authorities to sustain its position: State v. Rule, 11 Okla, Cr. 237, 144 Pac. 807; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Beach v. State, 28 Okla. Cr. 348, 230 Pac. 758; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Winfield v. State, 44 Okla. Cr. 232, 280 Pac. 630.

In Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787, this court, in the fifth paragraph of the syllabus, said:

“An exception to the rule of evidence that evidence of other offenses cannot be introduced to establish the commission of the offense charged arises where the other offense or offenses tend to identify the accused with the offense charged; or where such testimony is for the purpose of showing! that the offense charged was a part of a system or common scheme or plan, including other like offenses; or where proof of a separate offense is explanatory of the motive or intent of the offender in the commission of the crime charged.”

The Davis Case is a case where the defendant was charged with the same crime as the defendant in this case, that is, of having performed abortions, from the effects of which the women aborted died. In the Davis Case the question was discussed at length as to' the admission of certain documents found in the possession of the defendont and calling of witnesses to show that Dr. Davis had performed abortions upon other women. It was urged by the defendant that this testimony was inadmissible, as not being connected with the case. The same question is urged by the defendant in this case, that the court erred in admitting evidence of the abortions at different times upon other women. The admission of this testimony, as stated by the court, was for the purpose only of showing the custom, schemes or plans, if any existed, or the unlawful intent or motive, or to explain a particular course of action, and the court specifically advised the jury that if it did not find such evidence as may have been admitted tending to connect the defendant with the crime, then it was its duty to disregard the same. The defendant earnestly urges the admission of the testimony of the abortions upon other women as sufficient grounds for reversal of this case.

In the case of Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831, this court held:

“Before this court, can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or in its instructions to the jury, we must further find, from an inspection of the entire record, that appellant was injured thereby; and to determine this issue the court must consider the question as to whether the appellant is guilty or innocent of the offense charged.”

In Ford et al. v. State, 23 Okla. Cr. 46, 212 Pac. 444, 446, this court said:

“Great stress is placed on this assignment of error in the able brief filed in behalf of these defendants, and numerous cases are cited to the effect that the admission of such evidence was erroneous, bu it must be borne in mind that in this jurisdiction it is not error alone that authorizes this court to reverse judgments of conviction, but error plus injury, and in determining whether injury has probably resulted from the error complained of, this court will closely examine the record to determine the probable guilt of the defendants.”

Davis v. State, supra, is in point, and following the holding in the Davis Case we do not think the court erred in admitting the evidence of abortions performed on other women about the same time or shortly thereafter it is alleged the abortion was performed on Ruth Hall. The state, over the objection of the defendant, after introducing testimony as to the abortions performed upon other women was permitted to show that the women aborted died shortly thereafter. The subsequent effect had upon the other women after the abortions were performed and their deaths, in the opinion of this court, was inadmissible, but when the facts and circumstances disclosed by the record are considered in detail, we hold that the admission of the testimony is not such an error as would warrant this court in reversing this case.

The testimony in this case, though conflicting, shows conclusively by the state’s evidence, and the defendant’s, that the women named, whom the state claims died from the effects of the treatment of defendant, had visited the defendant in his office, and the question of an abortion had been discussed either by the women themselves with the defendant or those who accompanied them to the office. The evidence is sufficient to sustain the conviction.

The record further shows this defendant wholly disregarded his profession as a physician charged with the duty of carefully examining and treating his patients; that he did not take the pains to' look after them, or make any further inquiry about them after they left his office; and it conclusively shows that the defendant was a professional criminal abortionist of such type that he is not entitled to be considered a reputable physician. The jury heard the evidence and decided that the defendant was guilty. This court has repeatedly held that where there is any competent evidence to sustain the conviction it would not disturb the judgment.

The defendant was accorded a fair and impartial trial. The evidence is sufficient to sustain the conviction. There are other errors! assigned, but they do not possess sufficient merit to warrant a reversal. The judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    CHESTER ISOM v. STATE.
    No. A-8539.
    Oct. 20, 1933.
    Rehearing Denied Nov. 24, 1933.
    (26 Pac. [2d] 952.)

      Baird & Jones, George F. Womack, and S. H. Singleton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of larceny of an automobile and sentenced to serve a term of eight years in the state penitentiary. From' the judgment and sentence, defendant appeals.

Sybil Monahan, called on behalf of the state, stated:

“I was the owner of a two' door Chevrolet Coach, 1932 model; I was spending the night with my mother in Duncan, Oklahoma; I parked my car in the yard near the living room window; next morning about eight I discovered the car was gone. I next saw the car the following Thursday at Wagonon Garage, in Duncan. It had a fancy radiator cap on it. The top of the car had a three inch hole cut clear through; the ignition had been unscrewed and filed where it could be opened with a finger nail or match.. When I parked the car for the night the windows were all up and both the car and the ignition were locked; when, I recovered the car the slit place was on the left side above the handle of the door; the motor number had been changed; I identified the car by a cigarette burn on the right side of the door handle. It had the same highway ;tag on it I got from the highway department.”

W. T. Stapp, called on behalf of the state, testified in substance:

“I am a deputy sheriff of Cotton county, Okla.; on August 80, 1932, I was in Grandfield; I arrested Chester Isom and G. Boone Hinkle; at the time I arrested them they were in a 1932 Model two'-door Chevrolet Coach; Boone Hinkle was doing the driving; Chester Isom was with him; Hinkle told me his name was Bob Graham, and Chester Isom told me his name was Chester Isom. I searched the car and the men; found a pistol in the right-hand pocket of the door; under the rug on the floor was some applications for titles. I took a purse, a pocketknife and some small change from Isom; I did not take the serial number of the car; I found a cashier’s check for |2,750 on one of the boys, but I don’t remember which one; the men,- were sitting in the car when arrested; Hinkle did the talking.”

B. B. Sharp, testifying on behalf of the state, stated:

“I am an undersheriff of .Stephens county, Oklahoma; I was! in Walters on the 31st day of August, 1932, when Mr. Sullivan was interrogating Chester Isom; Isom said he left his father’s ranch to- drive to Amber, and then to Oklahoma City; he met Boone Hinkle at the airport at Oklahoma City, and decided to go to- Wichita Falls, Texas, with Hinkle; they came back to his father’s ranch near Amber and left the car Isom was driving and went on in Hinkle’s car.”

C. M. Mullins, called on behalf of the state, stated:

“I am a deputy sheriff of Stephens county; I went to Walters with the county attorney and Mr. Sharp; I saw the car Isom and Hinkle were driving at the time they were arrested; it had one Texas tag on it; Mr. Johnson, Mr. Crisp and myself went out to the Isom ranch; we found a Chevrolet car in a shed at the ranch; it was later turned over to Miss Monahan; on the left side above the door, a hole was cut in the top three or four inches long. The ignition was out of the instrument board hanging underneath; the door was still locked. We stayed there from four o’clock in the afternoon until after midnight; Mr. Isom, two boys and his son Leland, and a Mr. Baird came to the place. Leland came out to where the car was in the shed and went back; myself and a deputy sheriff from Chickasha was behind the car a,t the time; I went out and Mr. Isom and Mr. Baird was standing at the car, getting ready to leave; we brought the car back and turned it over to Miss Monahan.”

Horace Crisp testified in substance the same as Mr. Mullins, and further stated that the tag found in the side room of the chicken house was a 1932 Texas tag No. 523 —806.

W. L. Denney, testifying on behalf of the state, stated:

“I live at El Reno; on August 27, 1932, I lived in Duncan; I had a new Chevrolet car that was stolen from me that night; later I recovered the car at Walters; i had a Texas tag on it; when recovered the car only had a rear tag; the number of the tag was 523 — 806. I had a sort of an eagle or bird on the radiator cap; when I got it back it had a plain cap on it; the top was cut and the ignition had been taken out of it; the motor number had been changed. I know nothing about the Monahan car.”

Archie Royce testified he lived near the Isom ranch:

“I moved there the last night of August; I saw the car out at the shed; Chester batched there part of the time and Leland part of the time; I did not see Chester about the place fhe 30th or 31st of August; I saw Chester a,t. the ranch getting ready to go to the city; Chester stayed there part of the time, and was gone for several days at a time. I had not seen the Chevrolet in the shed prior to the time the officers found it.”

The defendant’s defense is an alibi. Testifying in his own behalf, tbe defendant denied any knowledge of the car being brought to the ranch house while he had been living there and denies any knowledge that the car that he started to drive in with Boone Hinkle to Texas was a stolen car; he states he was going down there to¡ see a sweetheart; that he met Boone Hinkle out between the old and new airports; he was coming to Oklahoma City and Boone was leaving; that he was coming to the city to get chloroform to treat the cattle; had borrowed $2 from a Mr. Huekaby who' ran a store at Amber to buy the chloroform with, as Mr. Huekaby was out of chloroform and defendant did not have any money. The defendant states he started to Texas with Hinkle, but no mention is made or anything said about his getting money from any place to defray the expense of the trip. Several of his family and friends testify that the defendant Isom was in Oklahoma City the nights it is alleged the cars were stolen.

The foregoing is all the testimony it is deemed necessary to set out in order to pass upon the questions raised by the defendant in the record. The evidence in this case is all circumstantial, but the jury found against the defendant and returned a verdict of guilty.

Twenty-four errors have been assigned by the defendant wherein it is alleged the court committed reversible error. The first assignment discussed by the defendant is that the court erred in overruling the demurrer of the plaintiff in error to the evidence offered by the state, and that the court erred in overruling the motion of plaintiff in error to. instruct the jury to. return a verdict of not. guilty, for the reason that the evidence was wholly insufficient to show the defendant guilty of the crime as charged, or any other crime against the laws of the state of Oklahoma.

It is urged by defendant in support of his first assignment of error that the evidence is insufficient to sustain a conviction and that there is no circumstantial evidence tending to. connect the defendant in any way with the larceny of the automobile. In fact, this assignment of error seems to be the one upon which the defendant relies chiefly for a reversal of this case; that is, that the evidence is insufficient. In support of his contention the defendant cites McLaughlin v. State, 18 Okla. Cr. 137, 193 Pac. 1010. A careful examination of McLaughlin v. State, supra, clearly shows the facts in this case are different from the facts in the McLaughlin Case.

We are of the opinion the evidence is adequate and sufficient to sustain the conviction, and that no. unbiased jury could have reached any other conclusion than that this defendant is guilty. The car was hidden in the shed at defendant’s place, and one of the license tags of the Denney car was found there, which was the car the defendant and Boone Hinkle were driving at the time of their arrest. The testimony clearly connects this defendant with (the taking of both the Monahan and Denney cars, and it appears from the record that this defendant and Boone Hinkle had entered into, a conspiracy to steal these cars and run them somewhere for the purpose of selling or disposing of the same to their benefit, and to deprive the owners of their cars.

Tbe testimony shows Boone Hinkle had been seen by people in the vicinity of Amber, and on the occasion of the taking of these cars Boone Hinkle was seen going toward the Isom ranch abont dark of the evening of August 28, 1982, with a woman and little girl in the car with him; he was driving a Chevrolet car. The court did not err in overruling the demurrer of the defendant or his motion for an instructed verdict.

Counsel for the defendant has filed an able brief in support of the defendant's assignments, attempting to convince the court that reversible error was committed in the trial of his case. One of the assignments urged is that the trial court committed error in overruling his motion for a new trial, on the ground of newly discovered evidence. This court cannot reach the conclusion that the evidence of Boone Hinkle is newly discovered evidence. Hinkle admits the taking of the car, and Hinkle had been associated with the defendant for some time, each knowing what they had been charged with. The trial proceeded, and at no time during the trial of the defendant does it appear from the record that Hinkle asked to be permitted to take the stand and testify that the defendant-in this case had nothing to do with the taking of the car. The affidavit of Boone Hinkle attempts to show that the defendant was not guilty of the charge against him. Should this case be reversed on the ground of newly discovered evidence urged by the defendant, and assigned for a new trial, neither the defendant nor the state could compel Hinkle to testify if he refused to do so. Hopkins v. State, 11 Okla. Cr. 385, 116 Pac. 917.

A motion for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and unless an abuse of such discretion is shown the judgment will not be reversed on appeal on account of the overruling of the motion for a new trial,. Carter v. State, 35 Okla. Cr. 421, 250 Pac, 807.

A new trial on the ground of newly discovered evidence will not be granted unless it appears that with the exercise of due diligence the evidence could not have been discovered before the trial. McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

In this case there is no showing whatever that the evidence of Hinkle could not have been discovered prior to the trial of the defendant. Hinkle was jointly charged with the defendant, and the defendant had every opportunity to learn what Hinkle would testify to. The court did not err in overruling the motion for a new trial on the ground of newly discovered evidence.

The defendant next urged that the court erred in refusing to' give defendant’s requested instructions. It is not error for the trial court to refuse to give requested instructions, although they may be a correct statement of the law, if the principles contained in said requested instructions have been included in and given by the court in its general instructions. Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

The substance of the instructions requested by defendant are covered by the general charge of the court, and the instructions as a whole fairly and fully state the law applicable to the facts. The court did not err in refusing to give the requested instructions.

There are other errors assigned by the defendant, but upon a careful study of the record, and the authorities cited in support of the errors, we hold that they are without merit. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to> the facts. The evidence is sufficient to sustain the judgment. No fundamental or prejudicial errors sufficient to warrant a reversal are found in the record.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM:

text:
    JAKE WILLIAMS v. STATE.
    No. A-8603.
    Nov. 24, 1933.
    (27 Pac. [2d] 363.)
    Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM:

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of having the illegal possession of whisky, and was sentenced to pay a fine of $250 and to serve a term of 90 days in the county jail.

The contention is that the evidence is insufficient to sustain the judgment and that the punishment assessed is excessive. Without any lengthy recital, the evidence is that certain officers, with a search warrant, found a quantity of whisky concealed on a vacant lot immediately across the street from the place of residence of defendant. There was ample evidence showing defendant’s connection with the vacant lot, that taxicabs and other cars would go to the premises, and that defendant would cross the street and procure a jar and bring it to the occupants of the car. It is admitted by the defendant that he had heretofore been convicted in the federal court of having possession of a still. Under the entire testimony we are satisfied of defendant’s guilt.

The case is affirmed.


author: EDWARDS, P. J.

text:
    TERRELL LEWIS v. STATE.
    No-. A-8585.
    Nov. 24, 1933.
    (27 Pac. [2d] 363.)
    Denver N. Davison and J. R. Huggins, for plaintiff in error.

      J. Berry King, Atty. Gen., and George J. Fagin, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pontotoc county of malicious mischief, and his punishment fixed at a fine of $300. The prosecution is under section 2333, Okla. Stat. 1931, and in substance alleges that defendant did willfully, maliciously, and, unlawfully tear down and destroy certain real property of the Hart Camp, No. 61, Woodmen of the World, a building upon a described lot.

The record discloses that the father of defendant owned the lot and the lower story of the building in question and gave the building to defendant. The upper floor at one time belonged to the Woodmen of the World, and upon an order being, made by the Grand Lodge that property of a subordinate lodge would, on a certain date, become the property of the Grand Lodge, the second story was conveyed to' certain individual members. This local lodge had six members, and, Avhile ostensibly keeping up an organization, had not had a,-meeting for some four years. When defendant began tearing down the building, ■he Avas served with a restraining order issued out of the district court; but the record is that at the time set for hearing on the restraining order no hearing Avas had, no further order was made, and the restraining order became defunct.

When defendant began tearing down the building, there were some negotiations betAveen him and Some of the members of the lodge. Excerpts from the testimony of certain of the state’s Avitnesses are:

“Q. He said it was his (referring to defendant)? A. Yes, sir, and I told him if he Avould come Avith me I would look it up on the records and if they said it was Ms, all right, if they said it was ours, all right, but he wouldn’t compromise or agree to do anything. I went over and called Mr. Thompson and told him the situation and of filing this complaint. Some two or three days after that he was still going ahead and wrecking the building and an injunction proceeding was got out against him and the injunction was, I understand, carried and served by Corbin, deputy sheriff. Anyway he went ahead. Q. He purported to own it and have the right to tear it down? A. Yes, sir. * * * Q. You didn’t want any of the lumber? A. No, sir, we did offer to go in and wreck the building so we could get our part and he could get his part.”

It is thus evident that a controversy over the ownership of the upper story of the building existed. There is no proof of malice in the acts of defendant, but rather an assertion of the ownership of the entire building, which may, or may not, be correct. Malice is a necessary ingredient of the offense. Colbert v. State, 7 Okla. Cr. 401, 124 Pac. 78. But it need not be, and generally cannot be, proven by direct and positive evidence. It may be proven by circumstances or may be inferred from evidence of the commission of acts or the manner in which they are committed as would justify the inference of malice in other crimes where it is a necessary element. Hobson v. State, 44 Ala. 380. Whatever rights the prosecuting witness may have in the building should be determined in a proper civil action and not in a criminal prosecution.

The case is reversed and remanded, with directions to dismiss.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOHN ROSSER v. STATE.
    No. A-8509.
    May 19, 1933.
    Rehearing Denied Nov. .27, 1933.
    (26 Pac. [2d] 769.)
    Frank Petree, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Jackson county of having the unlawful possession of intoxicating liquor, and was sentenced to -pay a fine of f 200 and to serve 30 days in the county jail.

At the time charged officers with a search warrant for the premises of one Wallace made a search, and at the time the automobile of defendant was parked in close proximity to' the Wallace house, just outside the fence, near the property line. As the officers approached, defendant was by the car and went into the house. There was a two-gallon keg of whisky on the seat, partially covered by a sweater, and a half-gallon jar under the seat and four ten-gallon kegs in the turtle back. Defendant did not take the stand.

The contention made is that the search of the car was illegal and the evidence obtained thereby inadmissible, for the reason the search was made without a search warrant, and not incidental to an arrest.

This court has held in several cases that a search, of an automobile without a search warrant or knowledge by the officers that it contained whisky, or not made as an incident to a legal arrest, is unlawful, and that an illegal search cannot be justified by the result of the search. This court has not held that probable cause for a belief by officers that an automobile contains intoxicating liquor will justify a search. We deem it unnecessary to determine whether or not the facts shown bring this case within any exception to the usual rule, for the reason that no timely objection was made to the evidence. Only two objections were made in the state’s case in chief. One is to a question propounded to> the deputy sheriff who' assisted in the search as to' what occurred at the time, The objection is:

“Comes now the defendant and objects to the witness testifying as to' what he found in the car in question until it is first shown that the search and the things seized under the search were filed, or a statement of the things found, was filed in the county clerk’s office of Jackson county, Okla.”

The other objection is to a question propounded the sheriff to identify a jar of Avhisky labeled with the names of the searching officers. This objection was made:

“We object to that being offered in evidence, for the reason G. W. Renfro is not a witness in this case.”

The state’s evidence malees out a perfect case of illegal possession. At the close defendant demurred:

“Comes now the defendant and demurs to the evidence on the part of the state in this case, for the reason the same is insufficient to support the allegations of the information, and for the further reason it is shown by the state’s witness, Mr. Bush, that he did not have a search warrant to search this defendant’s car.”

When an accused fails to object to evidence against him, ordinarily he waives an objection which, if timely made, might have resulted in the exclusion of the evidence.

In the federal courts and in most of the states it is held that, where it is known an offer of testimony illegally obtained will be made, defendant must make objection by motion before the trial. Harkline v. IT. S. (C. C. A.) 4 F. (2d) 526, 527. A few of the states, including this state, hold the objections may be made at the trial. Cornelius, Search and Seizure, §§ 10, 95, 256, 247, and authorities cited.

The objections do not raise the question of admissibility on the ground of an unlawful search. When a specific objection is, made on the trial to the admission of evidence on one ground, counsel on appeal will not be heard to urge some different objection to that presented to and passed on by the trial court. Gritts v. State, 6 Okla. Or. 534, 118 Pac. 673, 120 Pac. 669.

The other objection is that the court erred in failing to instruct as to the admissibility of evidence obtained by the unlawful search. Defendant requested an instruction on this point, and the court gave an instruction, but not as fully as requested. Since the question of admissibility was waived by failure to make timely objection, the court was not required to instruct. The instruction given resulted in placing* an additional burden on the state. On the entire record, no material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    A. C. BRIDGES v. STATE.
    No. A-8576.
    Dec. 8, 1933.
    (27 Pac. [2d] 868.)
    Newton & Pinson, for plaintiff in error.
    J. Berry King, Atty Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of assault with a dangerous weapon and was sentenced to serve a term of 2 years in the state penitentiary.

The information charges that defendant committed an assault upon.one Hailey with a dangerous weapon, to wit, a razor. The testimony, while conflicting as to the cause of the difficulty, sustains the charge. Defendant admitted an encounter with Hailey in the course of which he struck him with a knife, but denied he had a razor. He claimed to have acted in self-defense and apprehension of danger. The trial judge propounded the question to the witness Hailey: “Are you sure, son, that you saw the razor he cut you with?” This, defendant’s counsel contends, is a comment of the court on the weight of the testimony, and in fact discredits the testimony of defendant who had just testified he had used a knife and not a razor. Under the charge, it was not a material variance, even if the testimony had shown conclusively the assault was with a knife instead of a razor. The similarity of the weapons was such, proof of either would support the charge. It is possible, however, the jury may have attached too much significance to the rather pointed question of the trial judge in which he assumed the weapon used was a razor.

At the conclusion of the testimony the court stated to the jury that by agreement of counsel he would instruct orally, and, after so stating, asked counsel if that was satisfactory, to which both assented. The instructions were then given orally, and at the conclusion of the trial defendant had noted his exception to certain instructions, including No. 5, in which, among other things, the jury is told:

“* * * If you believe any witness has sworn falsely to any material fact at issue in the case, you have the right, if you desire, to entirely disregard the testimony of any such witness or witnesses, or you may give it such weight and value as you deem it entitled to have under all the facts and circumstances proved in the case, you being the sole judges of the credibility of the witnesses and the weight and value to be given to their testimony. * ■ * *”

This, defendant insists, was error, citing’ Billingsley v. State, 4 Okla. Cr. 597, 113 Pac. 241; Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244; Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278; York v. State, 40 Okla. Cr. 312, 269 Pac. 323. In Billingsley v. State, supra, the giving a similar instruction was held reversible error.

Expedition in the trial of criminal cases is much to be desired, but when the taking of testimony has been concluded but little additional time is required to prepare written instructions, particularly as most of the instructions in a criminal case are formal and may be prepared beforehand. Counsel in a criminal case have a right to inspect the instructions before they are given and to take exceptions, if they desire. Section 3057, Okla. St. 1931. If they are given orally, by consent of parties, exceptions may be reserved at the close of the trial. It is an unsafe practice for the trial court to- give oral instructions. Under the rule announced in several decisions of this court the case is reversed and remanded.

DAVENPORT, J., concurs. CHAPPELL, J., dissents.


author: CHAPPELL, J.

text:
    ANDY JONES v. STATE.
    No. A-8547.
    Dec. 8, 1933.
    (27 Pac. [2d] 869.)

      A. M. Beets and Allan Falkenstine (Wm. J. Zeman, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of the crime of assault and battery with a dangerous weapon, without intent to' kill, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state was that defendant committed an unprovoked assault upon R. L. Fisher by cutting him with a knife; that both of these parties were negroes. The undisputed evidence of the state, given by eyewitnesses, was that defendant was the aggressor and that the cause of the assault was an indebtedness of 60 cents which defendant was attempting to collect from Fisher.

Defendant, testifying for himself, claimed he acted in self-defense, but he is not corroborated by any of the eyewitnesses to the assault.

.Several alleged errors are urged by defendant as grounds for reversal, but none of them have any substantial merit, except complaint is made that the court permitted too great latitude in the cross-examination of defendant, which tended to prejudice the jury against him.

For the purpose of this opinion it is not necessary to set out the questions and answers and the record made, but it is sufficient to say that the county attorney asked some improper questions and the court did permit too wide a latitude in the cross-examination of defendant, but the error is not sufficient to require a reversal of the case.

If thisi was a close case or there was any doubt of the guilt of defendant or any probability that any honest jury under the evidence would return any other verdict except that of guilty, the case would have to- be reversed. But since a new trial, at additional expense to the state, could only result in another verdict of guilty, we are of the opinion that justice will be served by reducing the punishment assessed to a term of one year’s imprisonment in the state penitentiary, and, as modified, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ANDY JONES v. STATE.
    No. A-8546.
    Dec. 22, 1933.
    (28 Pac. [2d] 585.)
    A. M. Beets, Allan Falkenstine, and William J. Zeman, for plaintiff in error.

      J. Berry King, Atty. Gen., Smith O. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information with assault with intent to kill, was convicted and sentenced by the court to serve a term of five years in the state penitentiary at McAlester.

The testimony shows that the defendant was the stepfather of the prosecuting witness, Lonzo Talley; that defendant and prosecuting witness, prior to the time of the trouble, had been angry at each other and defendant had threatened to kill the prosecuting witness. The day the trouble came up the prosecuting witness was at the home of his brother Babe Talley; the defendant came to the house and called and asked Babe why he had not told him his mules had been in the field; Lucile Talley, the wife of Babe, holloed to him that Babe was not there. Immediately thereafter the prosecuting witness testified the defendant shot in through the window at him with a pistol; he jumped up and ran into the adjoining room and got a gun from under his brother’s bed and went around the comer of the house, and at that time the defendant was a short distance from the house, and prosecuting witness shot at defendant, and defendant then turned and shot the prosecuting witness through the shoulder and he fell.

The defendant insists that he did not shoot at the prosecuting witness while he was in the house, but as he rode away, some one came out of the house and fired at him, and the bullet struck him in the back of the head, glancing around the scalp; that he turned and fired at some one he saw at the corner of the house, claiming he did not shoot at the prosecuting witness until after the witness had shot at him and struck him in the head.

This is a family difficulty, and the record shows that, after it was discovered that Lonzo Talley was going to get well, and that the defendant was not seriously hurt, they began to try to bring about a settlement of the case. While Lonzo was recovering from his wound Lucile Talley told the county attorney that the defendant shot in the house before Lonzo did anything, but on the trial she changed her testimony and said she was not telling the truth when she talked to the county attorney, and in the trial stated the defendant did not shoot at Lonzo until after Lonzo shot the defendant.

The proof further shows that the wife of the defendant, Avho was the mother of Lonzo, and the mother-in-law of Lucile, had begged Lonzo not to appear against the defendant, and that in the trial of the case Lonzo could not be found and the state had to rely upon his testimony taken in the preliminary trial.

There is a direct conflict in the testimony of the prosecuting witness and the defendant. No complaint is made by the defendant that the court did not properly instruct the jury as to the law applicable to the facts in the case. The defendant in his brief argues three of his assignments, as follows:

“The trial court erred in overruling defendant’s demurrer to the state’s evidence.
“The verdict is contrary to the law and to the evidence.
“The court erred in overruling defendant’s motion for a new trial.”

These assignments were argued together. After a careful consideration of the record, we find they are without merit. The testimony in this case is such that, if the jury believed the testimony of the prosecuting witness, the defendant was guilty of an assault with intent to kill; if the defense of the defendant — that defendant was defending himself after the prosecuting witness had shot at the defendant — the defendant should have been acquitted. All of these questions were submitted to the jury and the jury decided against the defendant. We do not deem it necessary to comment further upon the facts in this case or to cite at length the authorities in support of the holding of this court. Suffice it to say that the testimony in this case is sufficient to sustain a conviction.

Considering the facts, as disclosed by the record in this case, and the circumstances surrounding the difficulty, and in view of the fact that it is a famly row, wd hold that the punishment of five years is excessive, and should be modified to one year, and, as modified, the judgment is affirmed. The sentence as modified is not to run concurrent with the sentence in Jones v. State, 55 Okla. Cr. 190, 27 Pac. (2d) 869.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    W. B. SPELLING v. STATE.
    No. A-8657.
    Dee. 22, 1933.
    (28 Pac. [2d] 584.)

      Paul Powers and Perry & Bristow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted on his plea of guilty in the court of common pleas of Oklahoma county and was sentenced to: serve a term of six months in the county jail. The appeal is by transcript. If any testimony was taken, it is not disclosed by the record.

The prosecution is under section 2388, Okla. Stat. 1931, which defines a crime where any person willfully and lewdly exposes his person or private parts in any public place or in any place where there are present other/ persons to be offended or annoyed thereby.

An appeal from a plea of guilty may be taken as a matter of right. Hardy v. State, 35 Okla. Cr. 75, 248 Pac. 846. Since a judgment upon a plea of guilty is in effect a judgment by confession, an appeal will be unavailing unless some jurisdictional question or question going to due process is presented.

Defendant makes but one contention: that the information does not charge an offense with sufficient certainty to give the court jurisdiction. As we gather from the brief, counsel argue the act constituting the offense must be in a public place where there are other persons present to be offended or annoyed thereby. Citing McKinley v. State, 38 Okla. Cr. 434, 244 Pac. 208. The decision in that case turns upon the meaning to be given the word “lewdly” as used in the statute. Clearly the statute is that if a person commits the act in a public place, he is guilty. If he commits it in any place where there are other persons to be annoyed thereby, he is guilty. The appeal is wholly without merit.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ALLEN CARROLL v. STATE.
    No. A-8596.
    Dec. 22, 1938.
    (28 Pac. [2d] 588.)
    Hays Dillard and Paul R. Dillard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of the offense of larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of six years.

The evidence of the state was that the 1931, Model A, Ford coupe of Dr. Watson was stolen from his garage in the town of Ryan, in Jefferson: county, after 9:30 p. m., on January 31, 1933; that about 9:30 or 10 o’clock on the next morning this automobile was found on a public street in the town of Memphis, Tex., about two hundred miles from the place where it was stolen; that this car was in possession of Bruce Jaggers; that defendant and Bruce Jaggers were seen together in the town of Ryan on the evening of the day the Watson automobile was stolen; that defendant was also found in Memphis, Tex., on February 1, 1933, where he was arrested and brought back to Ryan for trial; that the last person to see defendant on the night the Watson car was stolen was one Bailey Campbell, who testified he was with defendant at about 7 o’clock p. m., and that defendant left him with the statement that he ¡was goings to the high school to a basket ball game; that the school house was about a block and a half from Dr. Watson’s garage; that some time prior to the time Dr. Watson’s car was stolen, defendant and Jaggers were laughing and talking with Juanita Campbell, a sweetheart of Carroll’s, in the town of Ryan, and said, “They were going to town, they had to get that car”; that a cap answering the description of the one worn by defendant was found in the car when Jaggers was arrested, together with a battery cord, used to wire around the switch to enable the thieves to start- the car.

Defendant did not testify nor offer any evidence in his behalf.

It is first contended the evidence is insufficient to support the verdict of the jury.

Certain particular circumstances standing out in the case are that defendant and Jaggers had made up their minds to get the car; that defendant was in the town of Ryan on the night the car was stolen and in the neigh-i borhood of where it was stolen; that defendant and Jaggers were together in Ryan that afternoon, talking with each other; and that the very next day they were in Memphis, Tex., one of them in possession of the stolen car. Neither defendant nor Jaggers explain why they were in Memphis, two hundred miles away, or the why of their sudden departure from Ryan. To reach Memphis at the time they were arrested, it was necessary that they drive at night. The last message from defendant is that he was going to a basket ball game. He never told anybody he intended to go to Memphis, neither had his friend and associate, Jaggers, told anybody that he intended to make a hurried trip to Memphis that night in Dr. Watson’s car. The only persons who could explain the sudden trip to Memphis and the possession of Dr. Watson’s car were Jaggers and this defendant. They made no effort to do this.

There is a basis in this evidence on which the jury could reasonably and logically conclude that this defendant was guilty, and that is all this court has to look for. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115; Kirk v. State, 32 Okla. Cr. 361, 241 Pac. 205; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405.

It is next contended the testimony given by L. E. Hill, deputy sheriff of Hall county, Tex., was incompetent.

Counsel do not set out any particular portion of this testimony, but merely condemn all of it as based on hearsay and also including certain extrajudicial identifications of the defendant that were clearly incompetent.

Now in order to justify the arrest of defendant for a felony, and the detention of Jaggers as well, and of the Ford coupe, and to make admissible evidence of such arrest and of what was found in such automobile, it was necessary for the state to lay a legal foundation for the arrest of defendant and the holding of the Ford coupe.

Section 2780, Okla. Stat. 1931, among other things, provides:

“A peace officer may, without a warrant, arrest a person: * * *
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”

The evidence given by Hill forming the foundation for believing this defendant had committed a felony in this state and constituting reasonable cause for his arrest may be based on hearsay to a considerable extent, as of necessity it must be or there would be no way of apprehending and arresting an escaping felon.

This evidence was admissible to show Hill had reasonable ground to suspect this defendant had committed a felony and was in the act of escaping therefrom. The only description of defendant testified to by Hill was one given him as a foundation for defendant’s arrest. This did not purport to be a description of defendant given by anybody identifying him with the taking of Dr. Watson’s Ford coupe, but only information received from the sheriff of Waurika, Okla., that a felony had been committed and that two men of certain descriptions were suspected of having committed this felony and to arrest them if found.

The cases relied upon and cited by counsel for plaintiff in error in support of this assignment of error are not in point, because in each of these cases there was an extrajudicial identification of the accused testified to on hearsay, and in addition the arresting officer was permitted to testify that he based his arrest on this extrajudicial identification.

A careful examination of the evidence of this witness discloses that there is no substantial merit in defendant’s contention.

It is next contended the court erred in permitting the state, over the objection of counsel for defendant, to introduce a statement signed and sworn to by Juanita Campbell the day before she gave her testimony in court in behalf of the state, which signed statement was contradictory of the testimony of the witness as given at the trial.

The record discloses that this witness, who was a sweetheart of the defendant, had been questioned by the county attorney on the day before the trial commenced and had made a sworn statement to the effect that on the Saturday immediately preceding the taking of this car, defendant and Bruce Jaggers, his codefendant, were talking about stealing a car and that defendant said they would have to get back to town and get some business attended to if we get the car.

As a witness on the trial Juanita Campbell testified that defendant was laughing and talking one night, which was about two or three weeks earlier than the date given in her statement, and did not say anything, about stealing a car, but said they had to go to town to get that car. The county attorney announced to the court that he was taken by surprise by the statement of the witness' given at the trial and asked permission of the court, to. cross-examine her in respect to said statement, which the court permitted, and when the witness denied making any such statement, but claimed that the county attorney put that into the statement and would not let her read it, the court permitted the county attorney to introduce the sworn statement in evidence and also to introduce the justice of the peace before whom the statement was sworn, who' testified to the effect that the witness was looking over the shoulder of the county attorney when the statement was typewritten, and also that the county attorney read the statement to her and that she said it was correct and swore to. it as correct.

This court has held in substance that when a party has been deceived in placing a witness upon the stand, believing that the witness will testify to facts favorable to such party, and the witness upon the stand testifies to facts injurious to said party and conflicting with previous statements made by such witness, it would be a perversion of justice to deny such party the right to introduce in evidence statements made by such witness conflicting with the testimony given. This may be done upon the ground of surprise to explain the action of the party in placing the witness upon the stand and to destroy the injurious effects of such testimony. Sturgis v. State, 2 Okla. Cr. 361, 102 Pac. 57; Paris v. U. S., 5 Okla. Cr. 601, 115 Pac. 373; Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176; Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179.

Under the circumstances disclosed by this record and. upon the statement of the county attorney that he was surprised at the testimony given by the Avitness at the trial, it was permissible and not an abuse of discretion upon the part of the trial court to permit the county attorney to impeach his own Avitness, and the introduction of the statement made by this Avitness before the justice of the peace was not prejudicially erroneous.

While this case is not free from error, the purpose of the law is to punish those guilty of the commission of crime, and where it is apparent that the errors complained of are not such as may have influenced the jury erroneously in arriving at a true verdict, the judgment should not be reversed.

No reversible error appearing upon the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte CORA ADDINGTON.
    No. A-8665.
    Dec. 29. 1933.
    (28 Pac. [2d] 590.)
    D. D. Archer and J. O. Whiteside, for petitioner.
    Harlan T. Deupree, Municipal Counselor, and Ralph J. May, Asst. Municipal Counselor, for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained in the city jail of Oklahoma City by the chief of police; that she was charged in police court with vagrancy, was convicted, and appealed to the county court; that said case was then transferred to the common pleas court; that the jurisdiction of said court was challenged, the objection overruled, and she was convicted in said common pleas court and was fined $20! and is imprisoned in default of payment. Petitioner contends the common pleas court did not have jurisdiction, but that exclusive jurisdiction of appeals from the municipal court is in the county court.

The court of common pleas of Oklahoma county is created by chapter 72, Session Laws 1933. Sections 2, 5, and 8 of the act define the jurisdiction of the court as follows:

“Sec. 2. Said court shall have two judges, a clerk and two reporters as hereinafter provided. This court shall have full and complete jurisdiction of all criminal matters as heretofore and now within the power and jurisdiction of the justice of the peace courts generally and in addition thereto shall have jurisdiction in civil matters concurrent with that of the district court as hereinafter defined, and in all criminal and civil matters concurrent with the county court as hereinafter defined. This court shall be a court of record and shall have a seal in' such form as may be adopted and approved by the judges of said court upon organization thereof, and it shall have concurrent jurisdiction with the district court to -hear, try and determine all causes appealed to' it from justice of the peace courts, and shall also have concurrent jurisdiction with the district court to hear, try and determine all civil actions both in law and equity where the amount involved does not exceed the sum of two thousand, five hundred ($2,500) dollars, exclusive of interest and costs except causes involving the title to real estate and causes of action for divorce, and any action for libel and slander; provided said court shall have concurrent jurisdiction with the district court to hear, try and determine causes for foreclosure of mechanic and materialman’s liens on real estate where same does not exceed the sum of two thousand five hundred ($2,500) dollars, exclusive of interest and.costs. The court shall have concurrent jurisdiction with the county court in all criminal matters and in all civil matters, except probate matters, insanity, juvenile and bastardy proceedings. Causes may be appealed from justice of the peace courts to the court of common pleas in the same manner as now or hereafter provided for appeal from justice of the peace courts to district courts and county courts of this state.
“Sec. 5. Where no provision is otherwise made in this act and except as expressly excepted in this act, said court of common pleas and the judges thereof, shall be vested with all of the powers which are possessed by the district courts of the state and the judges thereof; and all laws of a general nature shall apply to said court of common pleas as far as the same can be made applicable and not inconsistent with the provisions of this act; and the jurisdiction of this court shall be co-extensive with the limits of the county where situated. Said court shall ■have full power and authority to issue all process, both civil and criminal, necessary and proper to carry into effect the jurisdiction given it by law and its judgments and other determinations, and shall have and possess all the powers usually possessed by the courts of record at common law subject to the modification of the statutes of this state applicable to courts of record, except it shall not have jurisdiction to> issue writs of quo warranto, ne exeat, prohibition, habeas corpus, mandamus, injunction, or other extraordinary writs except such writs as may be necessary to enable the court to enforce its jurisdiction, judgment and decrees.
“Sec. 8. The district court and the county court in this county wherein the court of common pleas is hereby established, may in its discretion at any time transfer any cause, including causes appealed from justice of the peace courts, now pending or hereafter filed in said district or county courts to said court of common pleas in the event that the subject matter and amount involved in said cause be within the jurisdiction of said court of common pleas, as provided for in this act, and that said cause shall be proceeded with in the court to which it shall be transferred as if originally commenced therein, and the court of common pleas shall have the power to transfer to the district court any cause pending in the court of common pleas wherein the amount involved is in excess of two thousand five hundred ($2,500) dollars exclusive of interest and cost, and such cause when so transferred shall be proceeded with in the court to which it is transferred as though originally commenced) therein.”

Section 6453, Okla. St. 1931, is also to be considered; it is:

“In all cases before a municipal court, except a judgment rendered on confession, an appeal may be taken by the defendant to the county court, and to such court only, where the trial thereof shall be had de novo on questions of both law and fact.”

There is no repealing clause in chapter 72, Laws of 1933. Repeals by implication are not favored. The statutes are pari materia, and are to be construed together.

It is evident from an examination of these sections, so far as they pertain to criminal cases, the court of common pleas is given: (1) All jurisdiction of a justice of the peace (section 2); (2) jurisdiction of appeals from justice of the peace courts (section 2); (3) jurisdiction of all original cases the same as the county court (section 2); (4) jurisdiction to issue writs and process to enforce its judgment (section 5); (5) jurisdiction of cases transferred to it by the county and district courts, within the limits enumerated (section 8); (6) jurisdiction to transfer a certain class of cases on its docket where the subject matter is in excess of its jurisdiction (section 8).

It will be seen that general jurisdiction is not conferred, but a special and limited jurisdiction. The act nowhere authorizes appeals from municipal courts to the court created, but does specifically authorize appeals from justice of the peace courts (section 2). Power is not given to transfer to the court created appeals which have been taken from municipal courts to the county court, though such power is expressly given as regards appeals from justice of the peace courts (section 8). In fact, no mention of appeals from municipal courts is made in the act. Under the rule of “expressio unius exclusio alterius,” the naming of appeals from justice of the peace courts excludes appeals from municipal courts. It appears that the act intentionally excludes from the jurisdiction of the court created appeals from municipal courts. To place any other construction on this act would be to enlarge it by interpretation. This we may not do. Section 1762, Okla. St. 1931. The following cases are analogous: Myers v. State, 19 Okla. Cr. 129, 197 Pac. 884, 18 A. L. R. 1057; McDonald v. State, 54 Okla. Cr. 122, 15 Pac. (2d) 149. It follows that the writ should be awarded discharging petitioner from the judgment of the court of common pleas. The attempted transfer from the county court being a nullity, the record should be returned to that court for such further action as it shall deem proper.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    BO OLIVER v. STATE.
    No. A-8655.
    Dec. 29, 1933.
    (28 Okla. [2d] 590.)
    Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Lowell R. Smith, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Washita county of having, the unlawful possession of intoxicating liquor as a second and subsequent offense, and was sentenced to' pay a fine of $150 and to' serve 30 days in the county jail.

Thereafter a preliminary complaint was filed before a committing magistrate in said county charging plaintiff in error with a felony in shooting another with intent to kill; that said plaintiff in error fled and is now a fugitive from justice, as appears from motion supported by affidavits filed.

It is settled by many decisions of this court that, where defendant is a fugitive from justice, upon motion and showing his appeal will be dismissed.

The appeal is dismissed.


text:
    EMERY STONE v. STATE.
    No. A-8570.
    Nov. 17, 1933.
    Rehearing Denied Jan 5, 1934.
    (27 Pac. [2d] 1057.)
    See, also, 54 Okla. Cr. 11, 13 Pac. (2d) 873.
    Orban C. Patterson (Kenneth B. Kienzle, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of larceny of an automobile, and Ms punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years.

The state’s evidence makes out a clear case of guilt. The defendant made no defense to the charge. He is represented in this court by two attorneys, who ask that the judgment be reversed on two separate grounds:

The attorney of record in the lower court, and who filed the first brief on defendant’s behalf in this court, asks that the judgment be reversed because the trial court erred, in overruling defendant’s motion for a new trial and motion in arrest of judgment.

It appears from the record that the trial court set the 11th day of October, 1930, at 9 o’clock a. m., for hearing the motion for a new trial and for pronouncement of judgement and sentence. The next recital in the case-made concerning the hearing of motion for a new trial is that on the 13th day of December, 1930, the case came on for further hearing on the motion for a new trial; that the same was argued and by the court continued until December 20, 1930, for further hearing. On December 20, 1930, further hearing was had on said motion, the state appearing by Harlan Deupree, assistant county attorney, and the defendant appearing by Orban C. Patterson and Lillard & Wheeling, his attorneys, at which time the court heard evidence to support the contention of the state that the names of Clarence Hurt, E. M. Clohessy, John O’Neil, Bill Owen, and D. A. Bryce, with the addresses given, were all indorsed on the indictment in the spring of 1929; that these names had been on the indictment, which was on file in the office of the court clerk, from that date until the time of trial; that subpoenas had been duly issued and the witnesses in attendance upon the court at all times when the case was up for hearing. No showing was made by either party that these indorsements were not made upon the order of the trial court. At this time the motion for a new trial and motion in arrest of judgment were taken under advisement by the trial court.

It further appears from the record that the witness Clohessy testified without objection, except that defendant objected on the ground that the indictment does not state a cause of action against him, which his counsel requested the court to overrule, and thereupon made the further objection that the witness’ name was not indorsed on the indictment and he did not appear and testify before the grand jury. Thereupon counsel for defendant asked the court to grant him a continuance, because he was surprised at being confronted with a witness whose name had not been properly indorsed on the indictment and who had not testified before the grand jury.

It further appears from the record that, prior to the calling of the jury into the box, defendant made the same objection, and thereupon the court offered to hear testimony in support of his complaint, but counsel refused to introduce any testimony, and said: “I don’t care to bother the court with it.”

It thus appears upon the face of the record that there is no merit in counsel’s contention either as to the indorsement of the names of the witnesses on the indictment nor the sufficiency of the evidence before the grand jury nor the testimony of the witness Clohessy.

Neither defendant nor his counsel who tried the case in the lower court and who was a party to and participated in the delays incident to the pronouncing of judgment and sentence made any objection or raised any question as to. the jurisdiction of the court nor the power of the court to pass judgment and sentence at the time the same was entered, nor does such trial counsel make any objection or raise any question thereon in this court, but leaves the question to be raised by Kenneth B. Kienzle, who' did not appear as counsel for defendant nor participate in the trial, but has appeared in this court and filed a brief in his behalf attacking the jurisdiction of the trial court to pronounce judgment in November, 1932, after having taken the motion for a new trial and in arrest of judgment under advisement for a period of one year and ten months before acting upon same. It is contended that the delay in so doing amounted to a loss of jurisdiction by the trial court to pronounce judgment and sentence in the case.

It has been held by this court that, when a court obtains jurisdiction of a party and of an offense for which he was tried, the decision of all other questions arising in the case is but the exercise of that jurisdiction. Ex parte Brown, 3 Okla. Or. 329, 105 Pac. 577; Ex parte Sizemore, 9 Okla. Cr. 376, 131 Pac. 1108.

In the case at bar, the trial court obtained jurisdiction of the subject-matter of the] offense by the return of the indictment into, open court charging- defendant with the larceny of an automobile, a charge the district court of Oklahoma county had jurisdiction to- try. The trial court obtained jurisdiction of the person of defendant by bringing' him into court on a warrant of arrest upon said indictment. He was thereafter arraigned and pleaded to the indictment, so' that, if the court had no jurisdiction to pronounce judgment and sentence in the case, it was not because it had never obtained jurisdiction of the subject-matter of the offense nor jurisdiction of the person of defendant, but only upon tbe ground that tbe court bad lost jurisdiction by reason of its failure to' act upon tbe motion for a new trial at tbe term of court at wbicb tbe verdict was rendered.

Section 3135, Okla. Stat. 1931, in part provides:

“He [defendant] may show for cause against tbe judgment: * * * Second. That be bas good cause to offer, either in arrest of judgment, or for a new trial, in wbicb case tbe court may, in its discretion, order tbe judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial.”

Under this section, defendant bas a right to show cause against tbe pronouncement of judgment on tbe verdict of guilty by motion either in arrest of judgment or for a new trial, and, if be does so, it is discretionary with tbe court to defer tbe pronouncement of judgment and proceed to decide upon the motion either in arrest of judgment or for a new trial, or both. Tbe defendant, by filing such motion, relieves tbe court of tbe responsibility to proceed with tbe pronouncement of judgment, and places it within tbe discretion of tbe court to defer action to another term of court.

Defendant having been enlarged upon bail, be was required to be in attendance upon the court from term to term. He had a right to demand that bis motion for a new trial be passed upon by tbe court, but, having, acquiesced in tbe delay by tbe filing of bis motions, and tbe bearings thereon, be is not in a position to take advantage of bis own dilatory tactics and escape punishment thereby.

In Stuckey v. State, 47 Okla. Cr. 423, 288 Pac. 394, this court said:

“In the absence of a statute to- the contrary, judgment need not be pronounced at the same term of court at which the verdict or plea of guilty was had.”

It follows, therefore, that the mere fact that judgment in this case was not pronounced at the term of court at which the verdict of guilty was returned did not deprive or divest the trial court of jurisdiction to pronounce judgment. The action on the motion for a new trial and in arrest of judgment involved decision of a question or questions arising during the progress of the trial of the case, and in deciding such questions the court was but exercising jurisdiction in the case.

In iStuckey v. State, supra, this court said:

“Where the court fixes a definite time for pronouncing judgment and sentence, and where the record shows that judgment and sentence was not pronounced on the day fixed but is silent as to what was done, the presumption of law is that a sufficient cause appeared to the court why judgment was not pronounced at that time.”

The facts in the case at bar are very similar to those in the case of Stuckey v. State, supra, and, upon the authority of that case, it is held that judgment and sentence in the case at bar was not indefinitely postponed, and that by the lapse of time the trial court did not lose jurisdiction to' pronounce judgment and sentence.

No reversible error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    VERLIN SMITH v. STATE.
    No. A-8555.
    Jan. 5, 1934.
    (28 Pac. [2d] 587.)

      E. M. Anderson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Verlin Smith, hereinafter referred to as defendant, ivas convicted in the district court of Mayes county of the crime of murder in the hilling of Floyd Long, and his punishment fixed by the jury at imprisonment in the state penitentiary for life.

It is first contended the evidence is insufficient to support the verdict of the jury.

Without setting forth the evidence in detail or in substance, it is sufficient to say that while it is wholly circumstantial, all the facts and circumstances point conclusively to the guilt of the defendant. The state’s case is further strengthened by the admissions of defendant in his evidence before the jury. He admits every fact and circumstance shown by the state tending to connect him with the offense, except the actual killing, and his explanation thereof, when considered in connection with the facts and circumstances shown by the state, makes out a case from which the jury were fully justified in returning a verdict of guilty.

It is next contended the trial court erred in the admission of incompetent and immaterial evidence.

This assignment of error relates to the admission in evidence of the revolver which the witness Gordon Lee found in March, 1932, at a point ten or twelve steps east of the place where the killing evidently occurred. It is contended this gnn is not identified as the gun of which the defendant was possessed on the day and evening of the killing, or that there was any proof that the gun was owned by deceased. There was evidence that the defendant had a gun on that day. While on the witness stand, this gun was exhibited to him, and he would neither affirm nor deny that it was his gun, or the one used in the killing. It is evident some one threw the gun away. If it was a killing by a hi-jacker or persons other than the defendant, they would have no motive in trying to get rid of the gun. The defendant would have such a motive, because if found in possession of a gun of the caliber of the bullets that were found in the body of deceased, he could hardly explain the killing consistent with his innocence.

The contention as to' the admissibility of this evidence is evidently directed to the weight of the evidence, and not primarily against its admissibility. The weight of the evidence was for the jury. It did have a tendency to connect defendant with the offense and was, therefore, properly admitted.

It is also contended the trial court erred in giving instruction No. 2, which reads as follows:

“The exact time the offense is alleged to have been committed is immaterial, and proof of the commission of the offense within three years prior to the 9th day of September, 1931, will be sufficient as to time.”

This instruction does not correctly state the law, because there is no limitation: as to time a prosecution for murder may be commenced after its commission. The error of the court in misstating the time within which prosecution could be brought, if it was prejudicial, was against the state and not the defendant. The prosecution was commenced on the 9th day of September, 1931, while the offense was committed on the night of September 4th, or the early morning of September 5, 1931. This assignment of error, therefore, is wholly devoid of merit.

No fundamental error appearing in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    HOWARD ARTHUR WHEELER v. STATE.
    No. A-8605.
    Jan. 5, 1934.
    (28 Pac. [2d] 592.)
    R. P. Shutler, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder and sentenced to imprisonment for life in the state penitentiary, and appeals.

The testimony on behalf of the state is in substance as follows: The deceased, Myrtle Wheeler, and. the defendant had been married for several years and were the parents of two- children. At the time of the alleged killing, defendant, together with his family, was living on a farm about twenty-five miles northeast of Kingfisher, in Kingfisher county. A few days prior to- the alleged killing-, the streams, had overflowed, and the home of the defendant was almost entirely submerged, necessitating the removal of his household goods and stock from the low lands to a place of safety on higher ground.

As shown by the testimony, the defendant moved a small house that had been used around an oil well on to his place for the- purpose of providing a. place where he and his family could sleep until their house had been dried and cleaned out from the effects of the overflow waters. This small shack, or dog house as it is commonly spoken of in the record, was a wooden structure about 12 by 14 feet, constructed of lumber, with a slanting roof. On the night of September 2, 1932, about 10:30 o’clock, some one who- was living with a family by the name of Story, whose home was approximately a half mile from the defendants, woke up and noticed a very bright light showing through the south window. Upon investigation, they discovered there was- a fire on the premises of the defendant. They got up immediately and got in their car and drlp-ve down near the Wheeler home. When they got there-, they discovered that the small house was enveloped in flames. At that time the fire had not reached the residence of the defendant, which was a two-room house formerly occupied by defendant and his family. They discovered the Wheeler automobile on the east side of the house, and ran it far enough away to keep the fire from reaching it. One of the parties opened the door of the old residence part to see if any of the family were in there, and found there was no- one in the building. About- 20 minutes after they arrived at the Wheeler home the defendant came np from a westerly direction. He inquired if any one had seen his wife and children, and, upon being informed they had not, he said, “Well, they must be in there,” indicating the burning building, “They were there when I left.” It was impossible to put the fire out for the reason they had no fire apparatus or any means of using water to extinguish the flames.

The testimony further shows that, as soon as the fire had burned down SO' the parties could get up to it, they began to investigate; they threw water upon the burning debris and discovered the dead bodies of Myrtle Wheeler and her two children; Myrtle Wheeler was lying on her face badly burned, the infant child was lying next to its mother, on the springs of an iron bedstead. On the floor near the bedstead the third body was discovered; an inquest was held, and upon an investigation it was discovered there was a wound in the back of the skull of each of the three bodies. Dr. A. O. Meredith said he examined the skull of the woman, and it had a hole in it just back of the ear that was nearly large enough to put his fist in, and that the brain was protruding:

“I cleaned that all away and got down to' the bone to examine the condition of the fracture there; the opening in this wound was caused by some external force, what that force was I dO' not know.”

Dr. Meredith further explained more minutely the size of the hole in the skull and the effects of the burn upon it.

The defendant did not take the stand in his own behalf, but called a number of Avitnesses to show that he had been over to' his brother’s that evening to get a colt; that he was not at home when the fire started. Several Avitnesses testified to the defendant and his wife living peaceable and happy together; that they had been there often, and no one seemed to know of their having, any family trouble. The state offered some testimony to show that about two years prior to this alleged offense defendant had stated that he did not know why he married his wife unless it was to spite her mother.

It would serve no useful purpose to' set out the testimony in full, as all the testimony relating to the crime is circumstantial. The defendant and his family were together about 6 o>’clock in the evening. There was no disturbance or trouble with the family so far as those who' were at the home at the time heard or could see. The house was discovered on fire. The defendant was not at home when the parties got there. Later he came up on horseback and got down and asked about his wife and children, and, when he failed to find them, he went to the cars near the house and said they must be in there. After-wards he went back and picked up a hammer and threw it against the burning building, and said it might as well burn too.

The undisputed testimony is that the deceased Myrtle Wheeler had been struck with some instrument in the head, breaking the skull. An effort was made by the defense to show that there were some heavy timbers in the building and that one might have struck her and inflicted the Avound which was on her head.

The defendant has assigned six errors alleged to have been committed by the trial court, but the only error argued by him is that the verdict of the jury and the judgment of the court is contrary to the evidence, and is not supported by sufficient evidence. No complaint is made of the instructions of the court, nor is there any argument presented as to the admission or rejection of evidence, so the only question for this court to consider is the question, Is the evidence sufficient to sustain the conviction?

No punishment is too severe to he inflicted upon any one who commits as grave a crime as shown by the record in this case has been committed. Two' innocent children and a mother murdered and then burned. The evidence is wholly circumstantial, yet all the facts and circumstances point to the guilt of defendant. The court, when it submitted the case to' the jury, advised the jury fully and correctly as to the law applicable to the facts in this case. The question then is, Is there any competent evidence to sustain the conviction? In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 509, this court said: “The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no- substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion, or prejudice.”

Before this court will reverse a conviction upon the ground that the verdict of the jury is contrary to the evidence, it must find there is no testimony in the record from which the jury could rationally conclude that the defendant was guilty unless it appears from the record that the jury was influenced by improper motives in arriving at its verdict. Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Bishop v.. State, 9 Okla. Cr. 175, 130 Pac. 1173; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

There is nothing in the record to show that the jury was influenced by improper motives in arriving at its verdict. Under the law of this state, the jury is the exclusive judge of the facts, and, where there is any competent evidence to sustain the verdict returned by it, this court will not substitute its judgment for the judgment of the jury. The evidence is sufficient to sustain the judgment.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts in the case. There are no errors in the record sufficient to warrant a reversal. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.