text:
    ARTHUR OWEN v. STATE.
    No. A-3715.
    Opinion Filed Jan. 24, 1923.
    (211 Pac. 1059.)
    (Syllabus.)
    1. Venue — False Pretenses — Crime Completed Where Mloney or Property Obtained. — The crime of obtaining money or property by false pretense is completed where the money or property is obtained.
    2. Same — Court of .County to Which Fund Was Removed not Invested with Jurisdiction. — In this case the offense, if any there was, was committed and completed in Kansas. A subsequent removal of the fund, or a portion of it, to Harper county, Okla., would not invest the courts of that.county with jurisdiction.
    Appeal from District Court, Harper County; Arthur G. Sutton, Judge.
    Arthur Owen was convicted of obtaining money under false pretenses and he appeals.
    Reversed.
    W. A, Briggs, for plaintiff in error.
    S, P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Arthur Owen, plaintiff in error, hereinafter designated the defendant, was on September 2, 1919, convicted of obtaining money from Lot Ravenscroft by false pretense, and his punishment was assessed at confinement in the county jail for a term of six months and to pay a fine of $1,000.

Lot Ravenscroft was the president of the Sitka State Bank at Sitka, Kan. Ravenscroft claims that in June, 1918, defendant came to him in his bank and represented to him that defendant was the owner of 400! head of cattle in Harper county, Okla., and that he was the owner of a ranch there, containing" 960 acres, incumbered for $6,000. Defendant wanted to borrow $23,000 and offered to give any or all of the property named as security for the proposed loan. Relying upon the representations made by the defendant, Ravenscroft agreed to make the loan if the defendant would secure its payment by executing a note and a chattel mortgage covering the 400 head of cattle. Accordingly, a note and a chattel mortgage were so executed at Sitka, Kan., whereupon the defendant was given a deposit slip showing that the sum of $23,-000 had been deposited1 in the Sitka State Bank of Sitka, Kan., to the credit of the defendant.

At this time defendant was indebted to a bank in Láveme, Harper county, Okla., in the sum of $18,000. The obligation to the Oklahoma bank was paid by draft drawn on the Sitka Bank, and the balance left to defendant’s credit in the Sitka Bank was drawn by the defendant personally, from time to time, by means of checks and drafts: drawn in Harper county, Okla.

It developed that defendant had not to exceed 150 head of cattle, and defendant claims that Ravenscroft was so informed at the time he made the loan to defendant; that the enumeration of 400 head of cattle in the mortgage was purposely so made and the real estate omitted in order that Ravenscroft might more easily rediscount the paper in Kansas City.

The Attorney General has confessed error on the ground that the venue as shown by the record was not in Harper county, Okla.

Tbe general rule is that the crime of obtaining money or property by false pretense is completed where the money or property is obtained. 16 Corpus Juris, 190; 11 R. C. L. 854.

So soon as Ravenscroft parted with! the money by placing it in the Sitka Bank, beyond his reach and control and under the control of the defendant, the offense was completed at the place where the money was so placed. State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834; Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 Ann. Cas. 365.

In the case of Dechard v. State (Tex. Cr. App.) 57 S. W. 813, it was held:

“Defendant, charged with obtaining money under false pretens'e, wrote from Cherokee county to the person swindled, in Houston county, to send him $500. The latter notified a bank in Cherokee county that he would honor defendant’s draft for that amount. Defendant drew a draft, with exchange, and when it was presented the bank placed the money to his credit. Held, that the offense was consummated in Cherokee county, and the venue was improperly laid in Houston county.”

The facts and the authorities seem to support the confession of error made by the Attorney General. The offense, if any there was, was committed and completed in Kansas. A subsequent removal of the fund, or a portion of it, to Harper county, would not invest the courts of that county with jurisdiction. This conclusion makes it unnecessary to treat the other assignments of error.

The judgment of the trial court' is reversed.

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


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    FRED HALLMARK v. STATE.
    No. A-3828.
    Opinion Filed Jan. 27, 1923.
    (212 Pac. 322.)
    (Syllabus.)
    1. New Trial — Insufficiency of Evidence to Support Verdict. — In passing on a motion for a new trial on the ground of insufficient evidence, it is the duty of the trial judge to carefully consider the evidence, and, unless there is sufficient competent evidence in his judgment to support the verdict, a new trial should be granted.
    2. Instructions not Prejudicial. — Instructions given considered, and held not to be prejudicially erroneous.
    3. Appeal and Error — Harmless Error — Conviction of Lower Degree of Crime than Evidence Warranted. — In cases where the statutes define a crime into degrees, and the trial court, without objection, instructs the jury they must “find the degree of the cjrime of which) defendant is guilty,” and, under such instructions, defendant is convicted of a lower degree than the law and evidence warranted, the error is such that defendant may not be heard to complain on appeal.
    4. Trial — Refusal of Requested Instructions Based on Theory Unsupported by Law or Evidence. — It is not prejudicial error to refuse requested instructions based on a theory not presented by the evidence or supported by law.
    5. Rape — Evidence Sustaining Conviction. — Evidence examined, and held sufficient to support the verdict and judgment.
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge..
    Fred Hallmark was convicted of tbe crime of rape in the second degree, and be appeals.
    Affirmed.
    Statement of the Case.
    This alleged crime occurred in the town of Cardin or Tar River, in Ottawa county, this state, on the 28th day of August, 1919. According to witnesses for the state, Mrs. Etta Bishop and her daughter, Miss Josephine Bishop, were held up on the track of the Mineral Belt Railroad which runs through the town of Cardin, and the mother subjected to an act of sexual intercourse with her assailant, who was identified by her as the defendant, Fred Hallmark. This alleged assault occurred, according to the state’s witnesses, about 8:30 in the evening of that day. The evening was dark and cloudy, with flashes of lightning at frequent intervals. The information alleged that the act was accomplished by threats of immediate and great bodily harm, and without the consent and against the will of the said Etta Bishop, the said Etta Bishop resisting said Fred Hallmark to prevent said act of sexual intercourse, her resistance being overcome by the said Fred Hallmark by threats of immediate and great bodily harm directed at and toward her, and accompanied by apparent power of execution sufficient to overcome and prevent resistance on her part.
    The Main street of Cardin runs east and west. The track of the Mineral Belt Railroad runs through the town in practically a north and south direction. South of Main street along the track was situated the Mineral Belt Depot and the feed store of Thomas and "Wilkes. Mr. and Mrs. Wilkes at the time lived in part of the building in which the feed store was located. Farther south than the feed store, and a short distance from the track, lived a Mrs. Pennington; her house being some 200 or 300 yards from the feed store. Between the feed store and Mrs. Pennington’s a spur track ran north to a coalyard. It was north of this switch, and where there are two tracks, and south of the feed store, that Mrs. Bishop and her daughter were held up. The Sinden and Rialto mines lie along this road on the east side thereof, and a kind of embankment runs along the side of the Sinden grounds by the road, and at one point there is a gap through which a road leads up into the mining grounds. The prosecuting witnesses placed the scene of the original holdup on the main track opposite this gap in the Sinden embankment, and testify that the distance was about 200 yards south of the Thomas and Wilkes feed store. Other witnesses fix the distance from1 the feed store to the gap as somewhat shorter than 200 yards.
    Mrs. Bishop testified: That on the eyening of August 28,1919, she left her home in Cardin and went to visit a friend in the town of Century, a mile or more southeast of Cardin. That in making the journey from Cardin to Century the usual route of travel (and the route which she took on that occasion) was partly along the track of the Mineral Belt Railroad. That after making their call they started back home somei time between 8 and 8:30 in the evening, and that it was not then good dark. That on account of the threatening storm they walked rapidly up the track north toward their home, and passed a lady who was walking more slowly than they, and who was. recognized as Mrs. Pennington. That when they had gone beyond her some 50 feet or more they met the defendant, walking in a southerly direction. That her daughter looked back and said. “Mamma, that man is following us; he is coming back; let’s run,” but that she said “It is too far to the produce house, and it wouldn’t do any good,” and they kept on walking pretty fast. That her daughter was on the left side, and the man came around and stuck a knife up in front of the daughter, and said, “Hold up your hands and don’t holler; I have a gun here that won’t make any noise, and I’ll blow your heads off.” That he asked if she had any money, and that when she said “No,” he asked her if they didn’t have any in their stockings, and said he was going to search them. That he searched their stockings above the knees, and that, when he searched the daughter’s farther up, witness grabbed his hand and told him not to go any farther; that she was nothing but a child; that when he searched hers farther up she said, “What do you want? I haven’t any money;” and he said, “Step over here,” and repeated the threat about the gun, and held the knife - close to her, and said, “Step over here with me and don’t holler.” That the knife was a long curved bladed one that she had never seen anything like before. That the defendant made her go on east across the other track, and when she begged him not to make her go, he stuck the knife up against her and made her go. That they went east from the right of way to a point inside of the Sinden mining grounds. That defendant repeated the threat about the gun, and made her lie down there and made the daughter sit by them until he had finished sexual intercourse with witness. That defendant then told them they could go, but told them he would blow their heads off if they should tell anybody. That defendant then went right on up between the mills. That it was lightning a good deal at the time. That he had on a pair of blue overalls and light shirt with a dark stripe, and a white straw hat. That when he first held them up he had a handkerchief tied around his nose, and wore his hat pulled down. That later that night when the defendant was brought to her house for identification she recognized his voice as that of the man who assaulted her. That immediately after the assault she went directly to the Thomas and Wilkes feed store, and there described the man in detail and the circumstances under which the assault took place.
    The testimony of Josephine Bishop, the daughter, was substantially that of her mother. There were some discrepancies between her testimony and that of her mother as to detailing the circumstances surrounding the commission of the crime, but there was nothing in the testimony of Josephine Bishop that would entitle the defendant to an acquittal.
    Mrs. M. W. Pennington testified that .on the evening of the 28th of August, 1919, she was living between the towns of Century and Cardin and west of the Mineral Belt Railroad. track a short distance; that about dark on that evening she walked north along the track of the railway, and met the defendant Hallmark, who was then coming south toward Cen* tury, and spoke to him; that she knew Hallmark well; that she walked slowly along, and was passed by two ladies going toward Cardin; that it was lightning so fast she decided to go back home, and as she turned around to go back home walking slowly she again met the defendant Hallmark, coming back toward Cardin; that at the rate Hallmark was walking when he passed her as she was coming north, and when she turned around and went south, the ladies could not have gone very far until Hallmark caught up with them; that it was a bad night .and looked like rain, and she never looked back; and she went back home and thought no more about it until Sam Strong and John Bruce, officers, woke her up after she had gone to bed; that they asked for her husband, and made him get up and asked him, what kind of clothes he wore that day, and asked to see his knife; that when they asked her if she had been up on the. tracks that night she was scared, and told them that it was about 8 or 8:15 and told them about meeting the two ladies and Hallmark, and described Hallmark to the officers.
    Mr. C. Wilkes of Thomas and Wilkes feed store testified that Mrs. Bishop and her daughter came to their place on the evening of the 28th of August, 1919, about 9 o’clock; that they live south of the Mineral Belt Depot; that it was about 200 yards from his place to the end of the switch to the south, and that a point on the, railroad track opposite the gap in the Sinden mine would be about half that distance; that Mrs. Bishop gave a description of the party who she claimed held them up and assaulted her as a kind of low fellow, wearing blue overalls and a light-eolored shirt and light-colored hat; that he went for the officers for Mrs. Bishop, and went .with the officers on the first searching trip they made; that he was present at a conversation the officers had with Mrs. Bishop after they returned; that Mrs. Bishop then sent the officers down to “old lady Pennington’s house”; that Mrs. Bishop said that Mrs. Pennington was right close when this party attacked her. Witness was not present when officers brought defendant back.
    Mr. J. E. Plake testified that he lived in Century; that on the night of August 28, 1919, he and his wife were visiting Mr. and Mrs. Wilkes; that they came to Wilkes place about 9 o’clock; that Mrs. Bishop and her daughter came in and complained of having been assaulted, and gave a description' <of the party, and that Mr. Wilkes said that was about the way Hallmark was dressed; that they were about half through dinner when the Bishops came in; that they took the Bishops home about four or five minutes after they came to Wilkes’ house; that it was then dark enough that one could not see very much,
    Sam Strong testified that he was ah officer, and that after talking with Mrs. Bishop he and John Bruce went out to search for her assailant; that after searching for some time and finding nobody that answered the description given to them, they went back to Mrs. Bishop, and she then told them about having seen the Pennington woman on the railroad track a short' time before the crime was committed; that they then went down to the Pennington house and made a search; that Mrs. Pennington then gave the information that led them to go to Hallmark’s house; that they found Hallmark, his wife, and two babies in bed; that' when they called him he got up and put on a pair of black pants; that they asked him where he had been that evening, and he said down to his father’s; that at first he said he wore the pants he had put on; that the overalls were lying on the floor; that they asked him if he didn’t wear the overalls, and he said first that he didn’t, but his wife spoke up and said he did; that they told him to put on the clothes he had worn down town, and he put on the overalls, a striped shirt, and a cap; that he said he had worn that cap; that they found the hat on the dresser later; that they went to the house of the defendant about 10 o’clock or a little later; that the defendant said afterwards that the hat they found in his house was his own; and that he had worn it that evening.
    John Bruce corroborated Strong in testifying that Mrs. Bishop did not mention Mrs. Pennington the first time they were at the house, and in describing the scene at Hallmark’s house he failed to mention that Hallmark said he wore the pants down town, but indicated that the wife interposed before Hallmark could answer. When they1 got to Mrs. Bishop’s she said that he was dressed the same way as the man on the track, only he had a hat on. Hallmark, however, admitted that he had a white hat at home, but said- that' he just kind of forgot it, and didn’t put it. on.
    The Defense.
    Fred Hallmark, testifying in his own defense, said: That he lived in Cardin, three blocks east and four blocks south of the Mineral Belt Depot; that he had lived in Cardin 3 years the coming March; that he had prior to that lived in; Galena, Kan., for 20 years; that he had worked as a miner in Galena and down in Oklahoma ever since he had begun to work; that he would be married 4 years the coming June; that he was working at the time of the trial for the same mining company that he had worked for on the 28th day of August, 1919, the S. B. & S. Mining Company; that he was a machine man’s helper, and worked underground; that on tbe 28tb day of August, 1919, be quit work at tbe usual time, 4 o’clock, went borne, bad supper, and came down to bis father’s store, the first place east of tbe railroad close by tbe depot; that while be was down there Clarence Price and Louie Saugh came to see about buying some household goods which Fred and bis father had stored in the third house west of the track; that they bought the goods, and he waited with them a while until one got a dray to haul them; that this was about 7:30 o’clock; that he went to his father’s store a little while, then out to the toilet, and went on south to a coal car on the switch and talked a little while to Strickland, who was unloading it, remaining there perhaps 30 minutes; that he left and went back to his father’s store about 8:30 to get some tobacco, but found the store closed, and went up Main street east three blocks, and then four blocks south to his home; that he saw Pearl Holmes and her son on the street as he went home, and Mrs. Harp McG-uire sitting in her door as he went by; that he did a little work around the house, and went to bed about 10 minutes to 9 or maybe 9 o’clock; that about 9:20 or 9:30 Clarence Price came to the house to get the key to the house where the furniture had been stored, as something had been forgotten; and that about 11:30 Strong and Bruce came, and jerked at the screen door, and told him to get up, that he was the man they were looking for; that when Strong and Bruce told him to put on the same clothes he had on he picked up a pair of brown pants which had fallen down by his overalls; that Strong asked if those were the same clothes he wore in the evening, and he turned to his wife, and she said, “You had on your overalls,” and then he saw that he didn’t have the right ones on; that he had never been arrested! before in his life; that he asked them four or five times what they wanted with him, and the officers refused to tell him; that they took him to Mrs. Bishop’s; that he had never seen Mrs. Bishop before; that he had not seen her that night on the track, nor ever met her; that he had never had any connection with her; that he knew Mrs. Pennington by sight; that he saw her on'the evening of August 28, 1919, when he was sitting on coal car talking with Strickland, and she was over on the main line; that he did not see her at any other time that night; that he did not meet and pass her on the track of the railroad to the south; that he was never any farther south that night than the coal car; that he was not on the main line of the track at all that night; that there was a little short fellow standing talking to her (Mrs. Pennington) when he saw her one time, believe his name was Irvin; that he sometimes went home by the xoad that leads up through the Sinden mine, but that it was no shorter than the other way; that Mrs. Harp McGuire was his cousin; that he saw Ida Williams that evening, standing in her window as he went into his house, and that she is his sister; that Mrs. Pearl Holmes was a trained nurse, and lived next door to his father’s store; that he had worn his hat when he was out earlier in the evening, but that his cap was hanging on the door, and that he put it on, he thought, before he put on his overalls; that Mrs. Bishop said, when he was taken down there, that he might be the party — she was not positive — but it might be him if he had on a white hat; ■that he told her he had a white hat at home.
    Mr. A. Strickland testified that he was unloading a coal -car at the coalyard about 50 feet from the Thomas and Wilkes feed store on the evening of August 28, 1919; that the car was on the switch track; that Fred1 Hallmark came down that -evening about 8 o’clock, and climbed up on the car to talk to him, "like a, miner will come along and talk to a fellow”; that he stayed 15 or 20 minutes, and that he remained about 15 minutes after Hallmark left, and it was pretty dark, and he (Strickland) went home southeast, along the railroad track and through the grounds of the Sinden mine; that when Hallmark left the car it was about 8:30 “I suppose”; and that he remained a quarter of an hour longer; that he (witness) is 6 feet 1 inch tall; that he had never met Hallmark before that night; that he didn’t say what he was there for, but only talked about his work and where he worked; don’t know in which direction Hallmark went when he got off the ear; that it was a stormy night, cloudy and lightning, looked like rain, and there was no moon.
    Mrs. Pearl Holmes testified that on the 28th of August, 1919, she lived right by Hallmark’s store, by the railroad; that she had known Fred Hallmark for about 2 years; that on the night of August 28, 1919, she and her boy left home to go for her laundry about half past 8; that she saw a person going east on Main street, and followed along behind him; that he passed in front of a store, and she saw it was Fred Hallmark; that she followed him for three blocks, and that he then went south in the direction of his home; that her clock had just struck half past 8 when she left home, and they, said it was five minutes fast; that it was dark when she left home, and she recognized Hallmark ahead of her by the light from Mr. Baker’s barber shop; that before he went up the street she had seen him try the door of his father’s store, and it was locked; that she knew what his general reputation in Cardin was for being a clean, virtuous, truthful, moral man; and that it was good. Witness had previously testified, at the beginning of her testimony, that she was a trained nurse.
    Mrs. Murta Wilkes testified that it was about three minutes to 9 when the Plakes arrived for dinner on the night of August 28, 1919; that it was about 9:20 when the Bishops came in; that she had looked at the clock when the Plakes came in; that they left about 9:30 to take the Bishops home; •.that while the Bishops were there, there was a discussion between them as to whether the eyes of the man who attacked them were black or blue; that after they had gotten home with the Bishops, and Mr. Wilkes and Mr. Plake had gone for the officers, Mrs. Bishop saw a man going into the cafe -of Fatty Cookemgood, next door, and. she followed him in, and when she came out said that she would say that was the fellow if he had on a white hat; and that man was taller and ■more slender than Fred Hallmark.
    Mrs. Beulah McGuire, cousin of defendant, testified that ¡she lived in Hockerville, Okla., that on the 28th day of August, 1919, she lived in Cardin, and had lived before that time in Joplin and Galena; that she had known Hallmark since he was a baby; that on August 28, 1919, she lived two blocks .north from Fred Hallmark’s home, and between his father’s place and his place; that on August 28, 1919, in the evening, .she saw Fred pass her house, going towards his home; that it was light so that she could recognize him; that his reputa"tion in the community for being a truthful, upright, honest, .moral man was good.
    George Raines, George Long and John Hardwick, all of •Galena, Kan., and M. D. Caldwell and Mrs. M. D. Caldwell, >of Cardin, Okla., all testified that the general reputation ■of the defendant as being a truthful, honest, moral and upright, and industrious man was good.
    Ida Williams, sister of the defendant, testified that she lived in a house on the adjoining lot to the defendant; that ■.she saw him that evening before he went down town, and saw him come back about 8:30.
    J. L. Beckner, F. M. Pulliam, Homer Hart, and G. S. 'Sizemore, all testified that the general reputation of the wit:-ness Mrs. Pennington for truth and veracity was bad.

      Mrs Fred Hallmark testified: That her husband came home on the evening of the trouble about 5 o ’clock from work; went away about 6 or 6:30; came back between 8:30 and 9 o’clock, and didn’t go away again. “There are two rooms in the house; my husband and I were in the front room. I went to bed first. That the officers asked him what kind of clothes he had on, and he had got hold of a pair of pants that had been knocked down there, and they asked him were those the clothes, and he said. ‘Yes,| ain’t they, Irene?’ and I said, ‘No; you had your overalls on.’ ” That there was nothing said about the hat. That the cap was lying there some place about the rest of the clothes. That the other pair of pants got knocked down over by the door. That the hat was on the chiffonier when the officers got back. That he still has the hat. That the cap and overalls were lying on the floor when he got up to dress. “I never noticed where the pants were when he got home.”
    John Bruce, recalled by the state, testified that when Fred Hallmark put on his pants, the first pair, he walked right over south of the bed, and either got them off a trunk or box that was there, or hanging up; I don’t know whether they were hanging or laying, but they were at the south side of the house; his overalls were laying right beside the bed, and he passed over them; had to go about 5 or 6 feet to get his pants.
    The errors assigned and relied upon for a reversal are as follows: (1) The court erred in rendering judgment against the defendant without having intelligently reviewed the evidence and approved the verdict on his own responsibility. (2) Error in giving a general set of instructions, covering the law in generalities, without applying the same to the issues in the cause. (3) Error in not presenting instructions presenting the defendant’s theory and in refusing instructions asked for that purpose by the defendant. (4) The verdict is against the evidence, and should have been set aside.
    Í!. E. Sapp and C. B. Mitchell, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). The first assignment of error is not supported by the record. In overruling the motion for a new trial on the ground that the verdict was not supported by the evidence the trial judge indulged in a lengthy discussion on the question of his duties in the premises, and in so doing stated that he did not know as a) matter of fact whether or not the defendant was guilty; that it was the duty of the jury to weigh the evidence and to pass upon the credibility of the witnesses, and in this connection further said:

“It is not the province of the court, as I understand the rule, to say or resolve the doubt or weigh the doubt, but if the court is not satisfied as to the sufficiency of all of the evidence, then it is his duty to set aside the verdict. But, reviewing all the evidence, and with all the evidence in mind, the court is of the opinion that there is sufficient competent evidence to support a verdict, even had the jury returned a verdict of guilty of rape in the first degree, and the motion for a new trial, as a whole, is overruled, and the defendant will be allowed axj exception.”

Whether or not the remarks of the trial judge expressing his private opinion of a case at the time he overrules a motion for a new trial constitute a part of the trial and should be incorporated in the case-made is not of material importance here.

In Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478, this court held that such remarks did not constitute any part of the trial of the case, and should not be incorporated in the case-made. Counsel representing defendant, however, contends that such remarks form a “matter in the action” which may properly be brought before the appellate court for review under the provisions of section 784-, Compiled Statutes 1921.

If the contention of defendant’s counsel be correct, which we expressly do not hold, it is apparent in our opinion that the trial judge clearly understood his duty in the premises when he overruled the motion for a new trial on the ground that the verdict was not supported by sufficient evidence, because he expressly stated that in his opinion, after reviewing the evidence:

“There is sufficient competent evidence to support the verdict, even had the jury returned a verdict of guilty of rape in the first degree.”

The foregoing statement shows the attitude of the trial judge at the time of overruling the motion for a new trial, and is a sufficient answer to the contention of counsel that the trial judge misunderstood his duties in the premises.

Under the second assignment of error, to wit, that the trial court erred in giving an instruction covering the entire 'eight subdivisions defining the crime of rape, it is! contended that such instruction was prejudicial to the substantial rights of the defendant, in that it permitted the jury to find him guilty of the crime of second degree rape without any evidence to support the submission of the cause on such theory. It is true that under the evidence introduced by the state the defendant was guilty alone of rape under the fifth subdivision of section 1834, Compiled Statutes 1921, which is rape in the first degree. There was no evidence on the part of the defense that tended to reduce the crime committed to that of rape in the second degree.

By instructions 8 and 9 the trial court told the jury that, if they believed the defendant accomplished an act of sexual intercourse with the prosecuting witness, Mrs. Etta Bishop, a female person not the wife of said defendant, by means of threats of immediate and great bodily harm to her, accompanied by apparent power of execution, and that the said prosecutrix at the time of the commission of such act believed that if she resisted the defendant and did not yield and acquiesce in the consummation of the act of sexual intercourse by him, those threats would be carried into immediate execution, the defendant should be found guilty, but that, if the jury did not so believe, or; had a reasonable doubt as to whether an act of sexual intercourse was accomplished by the defendant with Mrs. Bishop under such circumstances and by such means, they should acquit the defendant. Instructions 8 and 9 were the only instructions given by the trial judge which applied the law of the case to the evidence in issue. Considering instructions 8 and 9, together with the instruction covering all the statutory definitions of rape, the jury could not have been misled into the belief that they could find the defendant guilty under the issues, except of rape accomplished by means of threats of great and immediate bodily harm, accompanied by apparent power of execution.

In addition to the instructions commented upon above, the trial judge further instructed the jury as follows:

“(7) You are further instructed that rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent, or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases, rape is of the second degree.”
(10) You are further instructed that the crime of rape is distinguished into two degrees, rape in the first degree and rape in the second degree, and that if you convict the defendant you must find the degree of the crime of which he is guilty.”

Neither of the instructions above quoted were objected to by counsel for the defendant. The first of the latter instructions is a verbatim statement of section 1837, Compiled Statutes 1921. The second, in substance, is the same as section 2739, Compiled Statutes 1921, which provides:

“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

While this court has repeatedly held that the instructions should be applicable to the issues raised by the evidence, and that the trial court is not required to delve into the realms of conjecture or speculation in order to instruct upon some theory of the law of the ease not reasonably supported by the evidence (Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012, and eases cited therein), on the other hand this court has held:

“Where defendant is charged with murder and under the law and facts might properly have been convicted of manslaughter in the first degree, a conviction of manslaughter in the second' degree is error of which defendant will not be heard to complain upon appeal.” Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742.

See also, Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445.

In this case the defendant might properly have been convicted of rape in the first degree, and the trial court, without objection on the part of the defendant, and, evidently misconstruing his duty in the premises where there was no evidence tending to reduce the degree of the crime, authorized the jury by the instructions given to find the defendant guilty of a lower degree of crime than the evidence tended to disclose. There is considerable conflict in the authorities of the different jurisdictions as to whether or not such action on the part of the trial court amounts to reversible error. In this jurisdiction, however, it is held that such action constitutes error of which defendant will not be heard to complain upon appeal in cases where the crime is by statute distinguished into degrees and the defendant is convicted of a lower degree than the law and evidence warrant.

This view is consonant with the further statutory provision of this state (section 2822, Compiled Statutes 1921) substantially to the effect that on appeal no criminal judgment should be set aside or a new trial granted, among other grounds, because of misdirection of the jury, unless in the opinion of the court after an examination of the entire record it appears that thé error complained of has probably resulted in the miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.

It is also contended that the trial judge erred—

“in not presenting instructions covering the whole ease, and the defendant’s theory, and in refusing instructions asked by the defendant for that purpose.”

Counsel for the defendant .asked, the court to give some instructions upon the theory that the evidence disclosed that Mrs. Bishop voluntarily consented to an act of sexual intercourse with the defendant for the purpose of preventing any possible harm being done to her daughter. In this connection it is argued that the testimony of Josephine Bishop, the daughter, indicates conclusively that her mother voluntarily consented to the act of intercourse complained of. With this contention we cannot agree. The testimony of the daughter is not reasonably open to such construction. At the most, in our opinion, it discloses that the mother submitted against her will by reason of threats of immediate and great bodily harm to both her and the daughter. The mother may have been impelled by such fear to submit against her will to such act more for the purpose of protecting her daughter from such treatment than for the purpose of saving herself. Rather is she to be commended than condemned for such conduct, as both statutory and natural laws give to the parent the right under such circumstances to protect his offspring. Such conduct does not constitute that species of consent which will render the act guiltless. Consenting means consent of the will, and submission under the influences of fear or terror cannot amount to real consent. We think, therefore, no prejudicial error was committed in refusing such requested instructions. The theory of the defendant was not that the prosecutrix voluntarily consented to an act of sexual intercourse with him, but that he did not commit any such act; that he was in another place at the time such act was probably committed, if committed at all. The defense interposed was practically a negation of guilt. We think the trial court’s general charge presented the issues as fully for the defendant as the defense interposed by him warranted.

The further contention that the verdict is against the weight of the evidence and not supported by sufficient evidence has been commented upon by what has heretofore been said in passing upon previous assignments of' error. We think it sufficient to say that a reading of the synopsis of the evidence accompanying this opinion will convince an unprejudiced person that there was ample evidence to justify the jury to conclude that the defendant was guilty of the crime charged.

Certain incompetent evidence was admitted; no timely objection, however, was made to the admission of this evidence, nor motion interposed to strike the same from the consideration of the jury. The evidence was admitted under a mistaken impression that it formed a part of the res gestae. We are of the opinion, however, that the error is not such as should result in a reversal of the judgment in a case where the evidence reasonably discloses that the defendant should have been convicted and punished for a higher degree of the crime than that of which he was found guilty.

For reasons stated the conviction is affirmed.

DOYLE and BESSEY, JJ., concur.


author: BESSEY, J,

text:
    PETER HAUN v. STATE.
    No. A-3810.
    Opinion Filed Jan. 27, 1923.
    (211 Pac. 1060.)
    (Syllabus.)
    1. Rape — Physical Acts Constituting Assault with Intent to Rape to be Pleaded in Information. — The physical! acts done constituting the offense of an assault with intent to rape a female under the age of consent should be pleaded in an information charging that offense, in order that the court may determine whether the facts pleaded in law constitute the offense, and in order that the defendant may be sufficiently apprised of the issues he is called upon to meet.
    2. Indictment and Information — Mere Allegation that Accused Assaulted Female with Intent to Have Sexual Intercourse, Insufficient as Conclusion. — A mere allegation that the accused assaulted a female under the age of consent with intent to have sexual intercourse with her states a conclusion and is insufficient. •
    Appeal from District Court, Alfalfa County; J. C. Rob-berts, Judge.
    Peter Haun was convicted of assault with) intent to rape, and he appeals.
    Reversed.

      Dan Huett, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J,

Peter Haun, plaintiff in error, herein referred to as the defendant, was by information filed in the district court of Alfalfa county, February 28, 1920, charged with having made an assault with intent to rape upon the person of Isel Kesterson, a female under the age of 16 years, on the 15th day of December, 1919. At the trial, on March 13, 1920, by a verdict of the jury, defendant was found guilty as charged, without fixing the punishment. Thereafter, on March 23, 1920, judgment was rendered fixing his punishment at confinement in the state penitentiary for a term of two years. From this judgment he appeals.

Among the several assignments of error it is urged: That the court erred in overruling the demurrer to the information. The charging part of the information is as follows:

“That the said Peter Haun in the county and state aforesaid, on or about the 15th day of December, 1919, did knowingly, willfully, unlawfully, wrongfully, and feloniously make an assault in and upon one Isel Kesterson, a female person under the age of 16 years, to wit, of the age of 9 years, with the unlawful, wrongful, and felonious intent then and there on the part of him, the said Peter Haun, to unlawfully, wrongfully, and feloniously have sexual intercourse and carnal knowledge of the body of her, the said Isel Kesterson, who was then and there not the wife of him, the said Peter Haun, contrary to the form of the statute in such ease made and provided, and against the peace and dignify of the state of Oklahoma.”

It is contended that the information is fatally defective, in that it does not specifically state the manner in which, and the means by which, the alleged assault was made; that the pleading, at most, states a mere conclusion and is not' a statement of fact sufficient to put the defendant upon trial; that no specific overt act constituting an assault was pleaded.

1 Bouv. Law Diet. (3d Eevision) 253, defines assault as follows:

“An unlawful offer or attempt with force or violence to do a corporeal hurt to another. Force unlawfully directed or applied to the person of another under such circumstances as to cause a well-founded apprehension of immediate peril.”

A female of the age of 9 years, under our statutes, is incapable of consenting to an assault of the character here charged. Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111. Here the assault is alleged to have been committed upon or towards a female incapable of giving her consent, hence the element of force is eliminated.

In the case of Thompson v. State, 17 Okla. Cr. 215, 187 Pac. 819, the averments of the information were as follows:

“That on or about the 17th day of February, A. D. 1917, in said county of Garfield and state of Oklahoma, one B. L. Thompson did then and there unlawfully, willfully and, feloni-ously make an attempt to rape one Frances Butler, by then and there making an assault upon the body of the said Frances Butler, with the intent then and there to have sexual intercourse with the said Frances Butler, said Frances Butler being then and there of the age of seven years and not the wife of the said defendant, B. L. Thompson, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the state of Oklahoma. ’ ’

So far as the objection here urged is concerned, it will be seen that the formal charges in this and the Thompson Case are practically the same. In the Thompson Case this court concluded, as shown by the opinion written by Associate Judge Matson, as follows:

“It is the opinion of the court, therefore, that the information in this case is insufficient to charge the offense of assault with intent to rape a female, and that the trial court should have sustained a demurrer to the information and directed one to be filed charging the crime to have been against a female, and also should have required the allegations with respect to the manner of the assault to have been more specifically set out in the information.”

The reasons for a similar conclusion were well stated in the ease of State v. Russell, 64 Kan. 798, 68 Pac. 615, in an opinion written by Mr. Justice Pollock. In the Russell Case the averments of the information were:

“That on, to wit, the 10th day of May, A. D. 1901, in the county of Greenwood, in the state of Kansas, one Marion Russell, then there being, did then and there unlawfully, willfully, and feloniously in and upon one May Hodge, a female child under the age of 18 years, to wit, of the age of 16 years, make an' assault on her with intent her, the said May Hodge, then and there feloniously and unlawfully and carnally to know and abuse- her, the said May Hodge.”

Quoting from Justice Pollock’s opinion:

“Is the above information defective in failing to aver the act or acts done- towards the commission of the offense of assault with intent to commit the crime of rape upon a female under the age of 18 years — this being the offense which the state contends is charged thereby? This question arises upon the peculiar condition of our statute law with regard to the offense of what is' commonly known as ‘statutory rape.’ In the commission of this substantive offense, the element of force has no place. Carnal knowledge of a female under the age of consent, 18 years, in all cases is alike rape, whether force is employed or is not employed. Hence it is necessary in such case to allege and prove only the carnal knowledge and the age of the female, and the crime is established. That the above information would be sufficient to sustain a conviction of assault with intent to ravish by force if the age of consent fixed by the statute were 10,12, or a less number of years than that alleged in the information, may be and is conceded. But is it sufficient to withstand a motion to quash for want of sufficient averment of acts done towards the commission of the crime of assault with intent to ravish, where the pleader clearly shows, as in this case, by the form of the information that the state will rely for conviction, not upon acts of force done towards the female, which in the absence of the statute, might be shown under the allegation of assault, but upon the fact that by reason of her tender years she is powerless to condone the force by her consent? We think not. While it is true the offense of 'attempt to commit’ the crime of rape upon a female under the age of 18 years and the crime of ‘assault with intent’ to commit the same offense are recognized by the adjudicated eases in this state as distinct offenses, yet the element of force in each being, by virtue of the statute, eliminated while the form of the charge remains distinct, the evidence to sustain either must, of necessity, become the same. And as a necessary consequence, if the information charging an ‘attempt to ravish’ a female under the age of consent must set forth the specific acts done towards its commission to render it sufficient, so must an information charging an ‘assault with intent’ to commit rape upon a female under 18 years. In the case of State v. Frazier, 53 Kan. 87, 36 Pac. 58, 42 Am. St. Rep. 274, this court held: ‘A defendant charged with a substantive offense may be convicted under that charge of an attempt to commit the offense; but, where the prosecutor relies upon a specific charge of attempt, good pleading requires that he should set forth the acts done toward the commission of the offense. An averment that the defendant “unlawfully and feloniously did attempt to commit a rape by then and there attempting to carnally and unlawfully know the said Y.” is defective in failing to set forth any physical act' or acts done toward the commission of the offense, and is held to be insufficient as against a motion to quash.’ In the opinion, Mr. Justice Johnston says: ‘To constitute such an attempt something more than mere intention is necessary, and even more than solicitation. Under the statute relating to attempts, there must be, first, an intention to commit the crime; and, second, some direct overt act dope toward its commission. In re Lloyd, 51 Kan. 501, 33 Pac. 307. The second is an essential element of the offense, and should be specifically set forth in the charge. The physical acts done toward the commission of the offense should be stated in the information or indictment, so that the court may see whether or not the law has been violated, and so the accused may know to what he must make answer.” We are of the opinion, upon like ground, and by a parity of reasoning, it must be held, where the prosecutor intends to charge the offense of assault with intent to commit rape upon a female under the age of consent, the element of force, being * * * eliminated and the technical word ‘assault’ deprived of its meaning, the specific acts done toward the accomplishment of the offense must and should be pleaded, that the court may be informed and; determine the sufficiency of such acts to constitute the offense charged, and that the defendant may be apprised of the nature and character of the acts by him done, which it is charged constitute the offense he must be prepared to meet.”

We hold, therefore, that the allegations of the information in this case were insufficient. That being true, it will not be necessary to treat the other objections urged.

The judgment of the trial court is reversed.

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


author: BESSEY, J.

text:
    A. G. PROCTOR et al. v. STATE.
    No. A-3737.
    Opinion Filed Jan. 2, 1923.
    Rehearing Denied Jan. 27, 1923.
    (211 Pac. 1057.)
    (Syllabus.)
    1. Appeal and Error — Record—Remarks of Counsel In Argument.— Alleged improper and prejudicial remarks of counsel in the argument to the jury will be considered by this court only where such remarks are made a part of the record. Mere naked allegations of prejudicial remarks in the motion for a new trial are insufficient.
    2. Appeal and Error — Harmless Error — Conduct of Jurors. — Before final submission the inadvertent and momentary mingling of jurors with others at the place where the jury took their meals, and telephone and other conversations in the presence of the bailiff, will not operate as a reversal, unless it appears that such conduct was probably prejudicial.
    3. Same — Finding of Trial Court of Lack of Prejudice not Disturbed. — Where alleged misconduct of the jury before final submission was investigated by the trial court on consideration of the motion for a new trial, the trial court’s finding that there was no prejudice will not be disturbed.
    4. Homicide — Instructions on Self-Defense — Sufficiency.—Instructions relating to self-defense and the necessity or apparent necessity to act in self-defense held sufficient.
    5.' Homicide — Instruction as to Consideration of Evidence of Threats not Prejudicial. — An instruction that evidence of threats, communicated or uncommunicated, might be considered for the purpose of determining which was the probable aggressor and what might be reasonably apprehended from the overt acts of the deceased, considered with the other instructions given, was not prejudicial as being an improper limitation of the purpose for which such evidence might be considered.
    6. Homicide — Burden of Proof Where Plea of Self-Defense. — Where the killing is admitted and the accused pleads self-defense, there may be a shifting of the .burden of the evidence on that particular point, but the burden of proof on the whole case lies with the state. Self-defense may be and often is an affirmative defense. Section 5902, Rev. Laws 1910.
    Appeal from District Court, Carter County;' Thos W. Champion, Judge.
    A. G. Proctor and another were convicted of manslaughter in the first degree, and they appeal.
    Affirmed.
    S. J. Castleman, R. Brett, and Jas. H. Mathers, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

A. G. Proctor and Orin Proctor, plaintiffs in error, in this opinion referred to as the defendants, were by information filed in the district court of Carter county eharged with the murder of Bay Massard. By verdict of the jury rendered October 31,, 1919, each of the defendants was found guilty of manslaughter in the first degree. Defendant A. G. Proctor’s punishment was assessed at confinement in the state penitentiary for a term of five years, and defendant Orin Proctor’s punishment was fixed at four years. From the judgment pronounced in accordance with this verdict defendants appeal.

The evidence shows that on the Sunday preceding the Wednesday night on which the fatal difficulty occurred the deceased, Bay Massard, and another Syrian were playfully throwing at each other pieces of ice taken from an ice pack on the sidewalk in Healdton; that a piece of this ice accidentally struck defendant A. G. Proctor; that this defendant then > asked Massard why he hit him, and Massard replied with a vile epithet, that it was an accident; that thereupon A. G. Proctor md Massard engaged in a fight in which defendant’s head was cut with a piece of ice, and he sustained a broken or injured hand or wrist. On Wednesday evening Massard, in company with Albert Shadid, another young Syrian, was walking along the street near where defendants A. G. Proctor and Orin Proctor were sitting on the sidewalk, passing along in front of and beyond a pool hall near by; that after they had passed the defendants remained sitting on the curb a few minutes, and then went into the pool hall to get a drink of water, on their way to their rooms located a short distance to the rear of the pool hall. Defendants discovered that Massard and Shadid were in the pool hall, engaged in a game of pool. Defendants prepared to play a game on an adjoining table, and while they were chalking their cues preparatory to beginning the game, these two Syrians approached with their cues in their hands, in a fighting or belligerent attitude; according to other testimony, the defendants were the aggressors. However this may be, all four then engaged in the difficulty, using their fists and the billiard cues, and fighting by striking, shoving and clinching. At the culmination of the difficulty A. G. Proctor struck the deceased, Ray Mas-sard, with the heavy end of a broken billiard cue, fracturing his skull, from which wound he died shortly afterwards. It was claimed by defendant Orin Proctor that he took part in the fight only to protect his brother.

The physician who examined the wounded Syrian and operated on him testified that there was evidence of his head having been struck with some hard instrument at two different places, about an inch apart, and that there was also a flesh wound near the eye.

It was the theory of the state that the defendants followed these two Syrians into the pool hall and invited the difficulty; it was the theory of the defendants that the deceased and his companion were the aggressors. The evidence in. support of these two theories is more or less conflicting, .and it is difficult, if not impossible, to determine from the record before us which of the two was correct. A great deal of demonstrative evidence was introduced, in connection with a plat or drawing showing the location of the several pool tables, the cue racks, and the places where the participants in the fight stood and moved during the progress of the difficulty. The drawing or plat was not made a part of the record, and for that reason much of the testimony found in the record! is obscure or unintelligible.

The errors complained of may be summarized as follows: (1) Alleged improper remarks of the county attorney made in the course of his argument to the jury; (2) alleged misconduct of the jury; (3) alleged errors of the court in his instructions to the jury.

The arguments of counsel to the jury were not preserved in the record, and the question of whether or not the county attorney indulged in improper remarks is not shown by the record proper. This court has no means of knowing what the remarks of counsel in their argument to the jury were, other than a declaration made in the motion for a new trial, and there is no proof of what was said by the county attorney. In a number of cases this court has held that mere excerpts from speeches of counsel ordinarily should not be considered by this court on appeal. Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040; Payne et al. v. State, 21 Okla. Cr. 416, 209 Pac. 334.

Defendants complain that the jury were permitted to separate and converse with others, before final submission, contrary to the orders of the court. We do not think the record upholds this contention. The fact that some of the jurors went to a telephone and called up their homes to notify their people at home that they were being held on the jury, or that they held other conversation not connected with the case, would not operate to the prejudice of the defendants. It also appears that at one time one of the jurors went into a bank to get a check cashed, in view and hearing of the bailiff, while the others stood on the sidewalk. We do not think this was prejudicial. All of the matters relating to the alleged misconduct of the jury seem to have been carefully considered by the court below upon presentation and hearing of the motion for a new trial, in which the bailiff and the members of the jury were called as witnesses. Any presumption of prejudice appearing, if any there was, was overcome by their testimony. Not every infraction of the admonitions of the court to the jury, to remain together in charge of the bailiff, will operate to reverse a cause on appeal. Lively v. State, 22 Okla. Cr. 271, 211 Pac. 92; Bird v. State, 22 Okla. Cr. 263, 210 Pac. 925; Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557.

Defendants claim that the instructions of the court to the jury, separately and collectively, were unfair to the defendants. This claim we think is also without foundation. The court submitted 31 written instructions, covering every feature of the issues involved, and while some of the statements contained in these instructions, considered apart from what preceded and what followed, may be subject to criticism, we think the instructions as a whole were exceedingly fair to the defendants. Ordinarily jurors are not inclined to indulge in refinements of syntax and construction; without prolix explanations the average juror understands the meaning of “reasonable doubt,” “burden of proof,” “probable aggressor,” “right of self-defense,” and “right to use such reasonable and necessary force to protect the person assailed or some other person from great bodily harm.” The language of the) court used in instruction No. 19, “So long as the necessity, or apparent necessity, exists to strike in self-defense or in the lawful defense of another, then the law gives him the right to do so; but when the necessity, or apparent necessity ceases, then the right to act ceases,” in connection with the other instructions given in the case, sufficiently covers the law applicable to that issue. The refusal to give instruction No. 2 requested by defendants uppn +his issue was not error.

The requested instruction to the effect that threats, whether communicated or uncommunicated, may be considered by the jury for the purpose of determining the state of the deceased’s feelings toward the defendants, for the purpose of determining who was the probable aggressor, and for the apprehend from the overt acts and demonstrations of the de-purpose of determining what the defendants might reasonably ceased, was sufficiently covered by the instructions which were given.

Where the killing is admitted, as in this case, the claim pf self-defense is an affirmative defense, requiring testimony to support it. This, in a sense, is a shifting of the burden of evidence, but is not inconsistent with the presumption of innocence as applied to all criminal eases. Jones v. State, 20 Okla. Cr. 233, 202 Pac. 189; Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; section 5902, R. L. 1910; 13 R. C. L. 811.

Prom what has been said, we deem it unnecessary and inadvisable to quote the lengthy instructions given by the court and the instructions requested by the defendants.

There being no apparent errors prejudicial to the rights of the defendants, or either of them, the judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    STATE v. L. C. BOYD et al.
    No. A-3811.
    Opinion Filed Jan. 27, 1923.
    (211 Pac. 1119.)
    Appeal from County Court, Pottawatomie County, Clarence Robinson, Judge.
    L. O. Boyd and another were charged with an offense and acquitted, and the State appeals on reserved questions of law.
    Appeal dismissed.
   PER CURIAM.

This is a pretended appeal by the state on certain reserved questions of law arising on a trial in the county court of Pottawatomie county, in which court the defendants were charged by information with a violation of chapter 138, Session Laws of Oklahoma of 1919. The trial judge advised the jury to return a verdict of not guilty, because of a lack of evidence to sustain the charge. In compliance with such advice the jury returned a verdict finding defendants not guilty. The attempted appeal was taken identically in the manner pursued by the state in attempting to appeal the case of State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043. For reasons stated in the opinion in the case of State v. Childers, supra, this court has never acquired jurisdiction of this appeal, and the same is hereby dismissed.


author: DOYLE, J.

text:
    LUTHER LEE v. STATE.
    No. A-4178.
    Opinion Filed Jan. 29, 1923.
    (212 Pac. 142.)
    (Syllabus.)
    False Pretense. — Evidence Insufficient to Support Conviction. — In a prosecution for obtaining property by false pretenses, evidence considered and held not sufficient to sustain the verdict and judgment of conviction.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Luther Lee was convicted of false pretenses, and appeals.
    Reversed.
    C. F. Gowdy, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction and sentence, in accordance with the verdict of the jury, to imprisonment in the penitentiary for three years. The information, in substance, charges that on or about the 7th day of April, 1921, in Nowata county, Luther Lee did by the aid of certain false representations, and false pretenses as follows: “I am working for Moser; I am making harness for him, I am Moser’s big harness maker; I know Campbell, and it will be all right to have .the goods charged,” with the intent to cheat and defraud the Cash Mercantile Company, a partnership composed of A. W. Campbell and Leslie Campbell, obtain one suit of unionalls, two work shirts, two suits of underwear, all of the value of $9, the personal property of the Cash Mercantile Company. /

The testimony on the part of the state may be briefly stated as follows:

Orville Griffin testified:

“I was clerking for Campbell at the Cash Mercantile store; on the date alleged, about 7 o’clock in the morning, defendant, Luther Lee, came in and asked if Mr. Campbell was there. I said, ‘No.’ He said, ‘I have got to go back to work at Moser’s harness shop.’ He said he would like to get the goods charged until the end of the week; I said I did not know how it would be with Mr. Campbell, and I was going to charge them to him when Mr. Greenway came in. Defendant turned to Mr. Greenway and said, ‘How about this, Dad?’ Mr. Greenway said, ‘No; no more new accounts,’ I have no right to charge them, or words to that effect. Defendant picked up the goods and said, ‘Tell Mr. Campbell it will be all right; just make a ticket of it,’ and walked out. I figured that if he worked for Moser I would be sure to get the money. I saw Mr. Moser afterwards, and he said defendant never worked there. After he had got about half a block X followed him out, but I could not find him.”

A. Greenway testified:

“I was clerk at Campbell’s store. Defendant came in and priced some underwear, saying that he would be back again the next morning; when I came to the store he was there, and Griffin was selling him some goods. I did not hear any of the conversation except defendant said, ‘Just make a ticket of it, Campbell knows me. ’ I said, ‘No; don’t make any ticket. ’ After he went out Griffin stood there kind of dumbfounded; I said, ‘Why don’t you get that fellow and try to get the goods?’ and Griffin went out and came back in a minute or two and said he could not find him.”

The defendant offered no evidence, and at the close of the state’s case moved for an acquittal on the ground that the evidence is insufficient to sustain a conviction, for the reason that the proof has been only by one witness.

Our Code of Criminal Procedure provides that, upon a trial for having with an intent to cheat and defraud another designedly by any false pretenses, the defendant cannot be convicted unless, the pretenses, or some note or memorandum thereof, be in waiting either subscribed by, or in the handwriting of, the defendant, or unless the pretenses be proved by the testimony of two witnesses, or that of one witness and corroborating circumstances. Section 2702, Comp. Stats. 1921.

In the case of Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628, this court said:

“While it is a rule approved by this court that, where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and ordinarily the verdict approved by the trial court will be allowed to stand, a case of this character, however, is exceptional. We have carefully examined and fully considered all of the testimony, as shown by the record, and we are of opinion that the evidence' is not sufficient to sustain the verdict. In order! to justify a conviction upon a trial of an indictment for false pretenses, it must appear that the prosecutor parted with his money by reason of some of the pretenses set forth in the indictment, or, if not solely by reason of such pretenses, that they at least materially influenced his action. In the absence of evidence that the prosecutor relied upon the pretenses charged, the essential averment in such an indictment (that the defendant obtained the money by reason thereof) would not be supported; and, while it is not necessary that this fact should be shown by direct proof, it is competent to establish it by direct declarations of the prosecutor, and, in the absence of direct proof, it may be inferred from the facts and circumstances proved. Under our statute, it is necessary, before the defendant can be convicted, where the false pretense was expressed in language alone, that it be proven by the testimony of at least two witnesses, or of one witness and corroborating circumstances.”

Applying the test which the statute prescribes, the testimony of the witness Griffin, standing alone, is insufficient to sustain the conviction. In our1 opinion there was no evidence whatever, when fully and fairly considered, to show the offense charged had been committed; on the contrary it only tended to show that the offense committed, if any, was at most only petit larceny. We therefore conclude that the evidence is insufficient to sustain the verdict and judgment of conviction. The judgment is therefore reversed.

In view of the fact that defendant has served more than a year of the sentence imposed, the district court of Nowata county is directed to discharge the defendant. The warden of the penitentiary at McAlester will deliver the defendant to the sheriff of Nowata county, who will hold him in custody pending proceedings consistent with this opinion.

MATSON, P. J., and BESSEY, J., concur.


text:
    C. H. DOBBS v. STATE.
    No. A-4039.
    Opinion Filed Jan. 29, 1923.
    (211 Pac. 1119.)
    Appeal from County Court, Caddo County; C. B. Case, Judge.

      C. H. Dobbs was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    C. H. Carswell, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. H. Dobbs, was convicted on an information charging that he did sell one-half gallon of whisky to one Ira Hamilton, and in accordance with the verdict of the jury he was sentenced1 to be confined for 90 days in the county jail and to pay a fine of $250. From the judgment rendered on the 15th day of June, 1921, an appeal was perfected by filing in this court on August 4, 1921, a petition in error with case-made. No brief has been filed, and the case, which was submitted on the record, shows that the evidence for the state supports the allegations of the information, and that no evidence was offered on the part of the defense. An examination of the record discloses no merit in this appeal, and the judgment of the trial court is affirmed.


text:
    JOHN HOWARD v. STATE.
    No. A-3649.
    Opinion Filed Jan. 30, 1923.
    (211 Pac. 1065.)
    (Syllabus.)
    1. Continuance — Ground of Absent Witnesses — Insufficient Showing. There is no abuse of judicial discretion in overruling a motion for a' continuance, where the motion and supporting affidavits do not show conditions indicating that the desired testimony could probably .be procured at a subsequent term of court.
    (a) The same rule applies where the desired testimony is cumulative, and is predicated upon uncertain Information and belief.
    2. New Trial — New Trial on Ground of Intimidation of Witnesses, Properly Refused. Where the affidavits in support of a motion for a new trial indicate that) certain prospective witnesses were, or may have been, intimidated, the court committed no error in overruling the motion where no effort was made by the defendant to produce such hostile witnesses for the purpose of demonstrating their knowledge of the facts at issue and to ascertain by the examination of such witnesses, under oath, whether or nQt they were in fact corruptly intimidated or influenced.
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    John Howard was convicted of seduction, and be appeals.
    Affirmed.
    Merwine & Newhouse, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. 0. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

John Howard, plaintiff in error, here referred to as the defendant, was in the superior court of Ok-mulgee county, by a verdict of a jury on May 27, 1919, found guilty of the crime of seduction, and his punishment was fixed at confinement in the state penitentiary for a term of five years. From the judgment rendered on this verdict he appeals.

The defendant in his brief and argument contends that the court erred in overruling his motion for a continuance. Many of the things recited in the motion for a continuance under no rule of law would operate as an impelling reason to grant a continuance. That portion of the motion relating to absent witnesses does not sufficiently show that the witnesses desired, or their evidence, could be procured at a subsequent term of court. Besides this, the testimony desired was cumulative in its nature, and appears to be predicated upon uncertain information and belief. That being true, there was no abuse of discretion in overruling the motion. Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Cox v. State, 9 Okla. Cr. 378, 131 Pac. 1109; Cantrell v. State, 15 Okla. Cr. 280, 176 Pac. 91; Garrett v. State, 15 Okla. Cr. 475, 178 Pac. 269.

It is next contended that a witness for the state was intimidated by relatives and friends of the prosecutrix, and that for this reason defendant’s motion for a new trial should have been granted. The witness towards whom the intimidating remarks were chiefly addressed actually testified to the effect that from his personal knowledge prosecutrix was not of chaste character, thus demonstrating that the threats made, if indeed they amounted to threats, were unavailing; the defendant therefore has no cause for complaint on that ground. The issue of the chastity of the female is a vital issue in every seduction case. The jury by their verdict demonstrated that they did not believe the testimony of this witness.

The affidavits in support of the motion for a new trial stated further that before and during the trial other prospective witnesses were intimidated; that one in particular refused to talk to defendant and his attorney concerning what he knew about the chastity of the prosecutrix. However, the defendant made no effort to place these alleged witnesses on the witness stand, so that they might be interrogated under oath, and made no showing that if a new trial were granted the desired testimony would be forthcoming. The defend;ant should have made an effort to produce these alleged hostile witnesses at the trial and there demonstrate, or attempt to demonstrate, that whatever testimony they might give would be influenced by the belligerent attitude of the friends of the prosecutrix. A prospective witness is not necessarily hostile because he refuses to talk to one or the other of the parties interested in a seduction case.

Prosecutions of this character usually arouse more or less partisan feeling among the neighbors, friends, and relatives of both the defendant and the prosecutrix. The violated virtue of women is calculated to have this effect; but, unless it is shown that such a condition actually prevented the defendant from having a fair trial, a verdict of guilty will not be disturbed. The showing here made in support of this feature of the motion for a new trial was insufficient, amounting to mere speculation.

The law incorporated in the instructions to the jury was fair, and the evidence was sufficient to support the verdict.

The judgment of the trial court is affirmed.

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


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    CAD SHACKLETT v. STATE.
    No. A-3799.
    Opinion Filed Jan. 30, 1923.
    (211 Pac. 1063.)
    (Syllabus.)
    1. Continuance — Ground of Absent Witness — Insufficient Showing. There was no abuse of judicial discretion in overruling a motion for a continuance, where the testimony sought is immaterial, or of doubtful probative force, or where the showing of diligence is insufficient.
    2. Receiving Stolen Goods — Continuation of Asportation of Stolen Property by Accused not Receiving Stolen Property. Where the evidence shows that the accused, charged with larceny, was not present at the original taking of the property, but that the goods were taken by a confederate implicated with the defendant, the asportation by the confederate to one place and a continuation of the asportation to another place by the accused does not make of the latter a receiver of stolen property.
    3. Larceny — Evidence Sustaining Conviction of Grand Larceny. The direct and circumstantial evidence examined and found amply sufficient to support the verdict.
    4. Trial — Opening Statement of Prosecuting Attorney — When Prejudicial Error. Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where lacer, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial
    Appeal from District Court, Atoka County; J. H. Line-baugh, Judge.
    Cad Shacklett was convicted of grand larceny, and he appeals.
    Affirmed.
    C. McCasland, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Cad Shacklett, defendant in error, and Bill Freeman, were jointly charged, by information filed in the district court of Atoka county, December 3, 1918, with the larceny of seed cotton, the property of J. I. Sisson, of the value of $83, stolen and carried away from the possession of the owner September 21, 1918. Bill Freeman entered a plea of guilty to the charge. Plaintiff in error, for convenience referred to as the defendant, pleaded not guilty. At the trial, on February 9, 1920, defendant was by a verdict of the jury found guilty as charged and his punishment assessed at confinement in the state penitentiary for a term of one year. From the judgment rendered on this verdict he appeals.

The facts gleaned from the record indicate that in the, fall of the year 1918 J. I. Sisson, a farmer residing in Atoka county, discovered the loss of about 600 pounds of lint cotton which had been taken from a pile of picked cotton in his field and hauled away in a wagon. On the night this cotton disappeared, two men'passed Sisson’s house in a wagon, one wheel of which was squeaking for want of grease. These men stopped at Sisson’s house and borrowed some axle grease with which they greased the right front wheel of the wagon. The following morning, Sisson and some of his neighbors tracked a wagon drawn by two horses from the place where the cotton was taken to the home of the defendant, where they found that the horses had been exchanged for mules, and then tracked the wagon drawn by mules into the town of Atoka. There they found the wagon in the possession of the defendant. The wheels were removed from the wagon, and it appeared that the right front wheel had been recently greased, and that the other three wheels were comparatively dry. A bale of ginned cotton was in the wagon, in the possession of the defendant. Continuing their search, the men found these two horses belonging to Bill Freeman in his possession, at Stringtown. They found that these horses had been recently shod, and that the shoes had been removed from their feet. The missing shoes were found, two of them hidden under a box, and were taken by the officers back to the tracks leading from the cotton pile' in Sisson’s field and found to fit into the tracks there made. They also fitted the horses hoofs from which they had been removed. After the arrest of the defendant, he immediately made bond and was released; whereupon he went, in the nighttime, to Stringtown, presumably to talk and confer with his alleged confederate, Bill Freeman. Bill Freeman, who was also arrested for this theft, entered a plea of guilty and at the time of the trial of this defendant had finished serving his term in the penitentiary.

The defendant says that this conviction should be set aside for the following reasons, to wit:

First. Alleged error of the court in overruling the defendant’s motion for a continuance. ‘

Second. Because the evidence is insufficient to support the verdict.

Third. Because the county attorney in his opening statement to the jury stated what he expected to prove by Bill Freeman, and the case was tried and completed without the testimony of this witness.

Fourth. Because of the reception of alleged incompetent and prejudicial testimony.

In the motion for a continuance it was stated that one Mary Jane Taylor was sick and unable to attend the trial; that, if present, she would testify that on the night the cotton in question was stolen she was in defendant’s cotton field and saw the defendant and other members of his family load his own cotton into a wagon. This motion was supported by what purports to be a certificate of a physician as follows:

“Atoka, Okla., 2-9-1920.
“This is to certify that Mrs. Mary Jane Taylor is in bed sick and unable to be out of bed.
“J. W. Rollins, M. D.”

In the first place, the facts set out in the motion for a continuance are not inconsistent with the guilt of the defendant. Further, there is nO| sufficient showing of the nature of the illness of the witness, the probable time when she might be expeeted to recover, or that her testimony could probably be procured within a reasonable time at some subsequent term of court.

In the motion for continuance it is also stated that one B. B. Shacklett had been subpoenaed to be in attendance at court on the 19th day of January, 1920. The trial took place February 9, 1920. The return of the officer showed that the subpoena was duly served. It appeared, however, that B. B. Shacklett was in the state of Arkansas at the time of the service of this subpoena. It was claimed that if this witness were present he would testify that the defendant was not absent from his home on the night the cotton in question is alleged to have been stolen. The reasoning applying to the witness Mrs. Taylor applies with equal force to the witness Shacklett. According to the theory of the state, the cotton was originally taken by one or more confederates of the defendant, possibly in defendant’s absence; and the fact, if it were a fact, that defendant was at home during the; whole of that night, would not necessarily exonerate him of the charge.

The question of the sufficiency of an application for a continuance has so often been decided by this court that a citation of authorities is unnecessary.

The conviction in this case rests in part upon circumstantial evidence. It has often been decided by this court that a conviction may be supported, in whole or in part, by circumstantial evidence. The circumstances proved show that the asportation of this stolen lint cotton was a continuous asportation, made in a wagon drawn by Bill Freeman’s horses to the premises of the defendant, where a team of mules was substituted for the horses, and the cotton then hauled to Atoka by this defendant and by him taken to the gin and later offered for sale. The shoes removed from the horses were found at Stringtown and exactly fitted the tracks made by the horses as they passed from the place from which the cotton was originally removed to the home of the defendant. There were other circumstances implicating the defendant which need not be here recited. Altogether, we think the circumstances point to the guilt of the defendant and exclude every other reasonable hypothesis. Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749.

The facts show that the defendant was implicated in the original taking and assisted in the asportation, and was not merely the receiver of stolen property.

In his opening statement to the jury the prosecuting attorney said:

"The proof will show that the defendant Bill Freeman entered his plea of guilty and has served his term in the penitentiary.”

Here defendant’s attorney objected, on the ground that Bill Freeman was not present. The court then announced: "He is going to be present here if an attachment will get him.” It appears, therefore, that it was the intention of the county attorney to have Bill Freeman present to testify in this case. For some reason unknown to us, this testimony was not forthcoming. The purpose of an opening statement of counsel is to apprise the jury of what the respective parties expect to show; tbe statements so made are in no sense evidence and are not so understood by the jury. Where a statement is made in good faith, as this appears to have been made, and for some cause the witness cannot be procured, such action on the part of the county attorney will not be held reversible error, unless it is done in bad faith or appears to be manifestly prejudicial. 12 Cyc. 570, and cases there cited.

The alleged incompetent and prejudicial testimony was the testimony of Tom Pemberton, who assisted in identifying the tracks of the horses and the wagon used in carrying away the stolen cotton, and who testified to conflicting statements made by the defendant after his arrest the testimony of A. J. Fryer, a deputy sheriff, whose testimony was , of the same import; also, the testimony of Ben G-arside. In the brief defendant objects to the testimony of these witnesses in general, without specifying any particular part of their respective testimony as being incompetent. The evidence given' by all three of these witnesses was competent; the question of the weight of this and other testimony was for the jury.

Finding no prejudicial error, the judgment of the trial court is affirmed.

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


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    FRANK JONES et al. v. STATE.
    No. A-3872.
    Opinion Filed Jan. 30, 1923.
    (211 Pac. 1075.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Frank Jones .and Harry Bnshkirk were convicted of maintaining a liquor nuisance, and they appeal.
    Reversed.

      J. Q. A. Harrod and Lewis R. Morris, for plaintiffs in error.
    Tbe Attorney General, for the State.
   PER CURIAM.

This is a joint appeal from a judgment of conviction against both) defendants rendered in the county court of Oklahoma county on the 28th day of June, 1920, in conformity with verdicts against defendants on a trial upon a charge of maintaining a liquor nuisance. Punishment assessed against each defendant at a fine of $50 and imprisonment] in the county jail for 30 days.

Numerous errors are assigned, most of which are well founded in law and supported by the record.

The charge was that defendants did keep and maintain a place at 224 West Reno street, in Oklahoma City, where numerous and divers persons unknown did congregate for the purpose: of drinking intoxicating liquors, to wit, Jamaica ginger, wine, whisky, and Choctaw beer.

The only evidence tending to support the charge was that on the 6th day of May, 1920, certain officers searched the premises at 224 West Reno street, Oklahoma City, and found both defendants at such place j Bushkirk at the time being behind; the counter; that a! pop bottle was taken from Bushkirk that the officers said was about one-third full of com whisky ,- that in a back room of the building, among numerous empty pop bottles, was found! a pop bottle containing some Jamaica ginger; and that a; small quantity of Choc beer was found back there. There was no evidence tending to connect defendants with either the Jamaica ginger or Choc beer. A barber shop was also located in part of the building, with an entrance into the room where the Jamaica ginger and Choe beer were found.

There was no evidence that the place had the general reputation of being a place where intoxicating liquors were sold on kept for sale; neither was there any evidence to support the material allegation of the information that divers persons have been permitted to congregate there for the purpose of drinking intoxicating liquors. Jones testified that he was operating a soft drink stand and lunch. Bushkirk was only an employe of Jones. Both defendants established good reputations as< law-abiding citizens, and such evidence was uncontradieted.

A witness was permitted to testify, over objection, that she had gone to the place and told them not to sell her husband any more whisky.' This evidence was admitted although there was nothing to show that either defendant had ever sold her husband whiskyj-or other intoxicant, or that her husband had ever visited the place for that purpose, or that either defendant was present.

The allegation that such place was a place where people were) permitted to congregate-for the purpose of drinking intoxicating liquors was. not sustained biy competent legal evidence. If the evidence established any offense, it was that of unlawful possession, and not of maintaining a liquor nuisance.

We do not understand that proof of the possession of a very small quantity of intoxicating liquor on one single occasion, even in a public place, is sufficient to support a nui-sanee conviction, in the absence of proof of the general reputation of sueh place as one where intoxicating liquors were sold, or in! the absence of proof of sales of such liquors having been made on the premises. The statute against unlawful possession is intended; to cover sueh instances, and that is the statute upon which prosecutions should be based, where the state is unable to supply the additional elements) of proof necessary to support a nuisance conviction. The verdict was not the result of the unanimous concurrence of all the jurors,, but of only three-fourths thereof.

The judgment is reversed because of failure of proof as; to the material allegations of the information and also admission of incompetent evidence which tended to deprive defendants of a fair and impartial; trial.


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    DAN ROWE v. STATE.
    No. A-4052.
    Opinion Filed Jan. 31, 1923.
    (212 Pac. 143.)
    (Syllabus.)
    Homicide — Evidence Sufficient to Support Conviction of Manslaughter in First Degree. In a prosecution for murder, evidence held sufficient to support conviction of manslaughter in the first degree.
    Appeal1 from District Court, Washington County; Charles. B. Wilson, Judge.
    Dan Rowe was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    C. E. Bailey, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen.r for the State.
   DOYLE, J.

Dan Rowe was convicted in the district court of Washington county of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of five years. From the judgment rendered on the verdict, am appeal was perfected by filing in this court on August 17, 1921, a petition in error with' ease-made..

Tbe defendant is not represented by counsel in this court, we having nothing before us but the petition in error and ease-made.

The information charges him with the murder of one George Gentry, alleged to have been committed in Washington county on or about the 13th day of November, 1921, by shooting him with a' pistol.

The following facts appear from the record:

The shooting occurred in the servant’s quarters, in the rear of the home of Delbert Dailey, in Bartlesville.

Dailey testified that about noon he was feeding his chickens and heard a scuffle in the servant house; defendant Rowe came out and said, “I won that fellow’s money, and he tried to take it away from me, and I shot him.” I told him he had better move on, and I asked if he had killed him. Defendant said he did not know.

The bullet that killed the deceased entered near the solar plexus. Deceased was taken to the hospital and died] the next morning. Before the operation he said to his sister: “I am going to die. The operation won’t do any good. I can’t' live.” She asked him what was the trouble! between him and Dan Rowe. He said they were playing cards and got into an argument and Dan came at him; that he saw Dan was going to get his gun, so he got up and made' for him and stumbled, and Dan shot him; that he made for him to keep him from shooting him.

The defendant as a witness in his own behalf testified:

“I am 28 years old. George Gentry and me had been good friends. The day before the trouble I met him, and he said: 'Come out to my house in the morning. I want to play you some coon-can, $5 on the top.’ And I says, ‘I don’t know where you' live.’ He said, ‘1107 Osage, where John Scott used do live,’ I told him, ‘All right.’ Between. 10 or 11 o’clock the next morning I found him there:, and we commenced playing coon-can. After a while he said he was broke. He had a yellow jumper and pulled it off and pitched it over to me, and ,said, ‘Give| me three dollars on it, and I will play you some more!.’ 1 said, ‘No, I won’t do anything like that,’ and I said, ‘ I will have to go now.’ He said, ‘All right.’ I got up .and walked around and picked up, my overcoat from the foot of the bed. He said: ‘Stop, Dan Rowe, you yellow son of a bitch! As much money you have beat me out of, and won’t let me have', any of it! 1 will kill you! ’ and made for me.. I turned, and he had a butcher knife and looked like he was trying to stab me. I hit the knife and cut my finger. He 'Clinched me, and we fell against the bed. I just shoved him back and shot him. I walked out, and this gentleman standing there was feeding his chickens. Ha remarked, ‘What is -going- on in there?’ and I said, ‘I beat that fellow out of his money, and he got a butcher knife and tried to kill me, and I shot him.’ I walked back in the shack and picked up my overcoat. Then I went down to the sheriff’s office and gave •myself up.”

We deem it unnecessary to further detail the testimony. 'The'errors assigned question the sufficiency of the evidence •to sustain the conviction. Where there is substantial evidence to show the guilt of the accused, this court will not weigh -the sufficiency of the same to sustain- a conviction, but will -consider all thei evidence to ascertain whether a conviction is •founded on substantial evidence. We have examined all the ■ evidence and the instructions, carefully, and find no error •which could have prejudiced the substantial rights of the defendant. The record shows that the defendant had a fair trial, ■with every right accorded him that the law requires. We are -of the opinion! that the evidence sufficiently! supports the con-wiction.

The judgment of the lower} court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    L. KASSOFF et al. v. STATE.
    No. A-4109.
    Opinion Filed Feb. 3, 1923.
    (212 Pac. 141.)
    (Syllabus.)
    Appeal and Error — Appellant nort; Entitled to Give Supersedeas Bond and Leave Jurisdiction Without Permitting Orders. When a person is convicted of crime and perfects an appeal to this court, he is not entitled to, give. supersedeas bond and leave the jurisdiction without proper orders permitting him to do so.
    Appeal from! County Court, Stephens County; G-.; T. Burrows, Judge.
    L. Kassoff and another were convicted of a violation of the prohibitory liquor law, and they appeal.
    Appeal dismissed.
    Jno. W. Scott and Sandlin, Winans & Lewis, for plaintiffs in error.
    George' F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were jointly charged, tried, and convicted on an information charging that they did have in their possession intoxicating liquor, to wit, five gallons of “Home Brew,” and one gallon of whisky, at their place of business in Oil City, in Stephens county, with the unlawful intent to sell the same in violation of the prohibitory liquor laws of the state, and in accordance with the verdict of the jury they were each sentenced to be confined for 30 days in the county jail and toi pay a fine of $50. From the judgments rendered on the 6th day of September, 1921, an appeal was perfected by filing in this court on October 17,1921, a petition in error with case-made.,

The plaintiffs in error are not represented by counsel in this court, and no briefs have been filed. On January 3, 1923, the Attorney General filed a motion to dismiss the appeal on the ground that plaintiffs in error and' each of them have left the jurisdiction of this court and are living in the city of Little Rock, Ark., and] that no permission or request for permission •has been made to this court by plaintiffs in' error for the privilege of removing from the jurisdiction of the court .during the pendency of the appeal.

Attached to the motion to¡ dismiss and! in support thereof is' the affidavit of S. G-. Moore that he| is constable^' in) Duncan township, Stephens county; that at the request of J. H. Davis, one of the bondsmen that executed the supersedeas bond to stay the judgement pending said appeal, he went to Little Rock and' found the said L.j Kassoff and Lena! Kassoff and requested each of them to return to the state of Oklahoma and thereby; prevent the forfeiture of said supersedeas bond; that said L. Kassoff and Lena Kassoff and each of them refused to return to Oklahomla to relieve said bondsmen of liability accruing ort said bond.

In response to the motion to dismiss, said plaintiffs in error have filed their verified answer, wherein; they state that they have been staying in Little Rock since the month of July, 1922; that their leaving the state of Oklahoma was not to avoid' any service, or penalties, but because of necessity; that they are not fugitives from justice and that they have not attempted to conceal their location or whereabouts; that they paid the sum of $200 to the bondsmen to make the bond, and that hé has not incurred any liability on the bond; that at the proper time they will return to Oklahoma to face any charge aftefi the Criminal Court of Appeals has disposed of said appeal.

By numerous decisions of thté court it has been held that, when a person is convicted of a crime and perfects an appeal to this' court, he is not entitled to give a supersedeas bond and leave the jurisdiction without proper orders permitting him to do so. Ravenscraft v. State, 12 Okla. Cr. 283, 155 Pac. 198.

From the failure to file briefs and from the answer of plaintiffs in error to the motion to dismiss, it is evident that the appeal in this case has been) abandoned.

Following the rule laid down in the case cited, the motion to dismiss the appeal is sustained, and the cause remanded to the county court of Stephens county.

MATSON, P. J., and BESSEY, J., concur.


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    Ex parte LUTHER LEE.
    No. A-4550.
    Opinion Filed Feb. 3, 1923.
    (212 Pac. 143.)
    Habeas corpus by Luther Lee to be let to bail.
    Dismissed.
    C. F. G-owdy, for petitioner.
   PER CURIAM.

This is an application- for, supersedeas in the case of Luther Lee v. State, the same being an appeal from the judgment of the district court of Nowata county, 22 Okla. Cr. 452, 212 Pac. 142, wherein the judgment was reversed by an opinion| of this court during thei present term.

The cause is) therefore dismissed.


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    WINFORD LAWSON v. STATE.
    No. A-3995.
    Opinion Filed Feb. 3, 1923.
    (212 Pac. 1116.)
    Appeal from County Court, Bryan County;, John Finney, Judge.

      Winford Lawson was convicted of a violation, of the prohibitory law, and he appeals.
    Affirmed.
    Warren B. Phillips, forj plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Winford Lawson, was convicted on a charge of unlawfully selling one quart of whis-ky to Luther Murley, and 'in accordance with the verdict of the jury was sentenced to be confined' for 30 days in the county jail and to pay a fine of $50., From the judgment rendered on the verdict', an appeal was perfected by) filing in this court on June 7, 1921, a petition in error with case-made. No brief has been filed and no appearance made in behalf of plaintiff in error in this court. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute' the appeal. An examination of the record fails to disclose anyi error of which the plaintiff in error has any just right to complain. The judgment of the lower court is therefore affirmed.