text:
    FRANK( BUTCH) CALDWELL v. STATE.
    No. A-8832.
    July 27, 1935.
    (48 Pac. [2d] 356.)

      Potter & Potter, for plaintiff in error.
    J. Berry King', Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and O. B. Martin, Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Kay county, on a charge of grand larceny, and sentenced to imprisonment in the state penitentiary for a period of three years.

The judgment in this case was rendered on the 10th day of May, 1931, and plaintiff was given 60 days from that date to make and serve a case-made. On the 9th day of July, 1931, the court granted a further extension of 60 days from the expiration of the first order fixing the time to make and serve a case-made, which 60 days expired September 7, 1931. That on September 10, 1931, more than 60 days after July 9, 1931, the plaintiff in error made application to the court and the court granted an order allowing, him an additional 10 days in which to prepare and serve the case-made.

The defendant in error has filed a motion to dismiss the attempted appeal on the ground that said order granted by the court on September 10,1931, after the date fixed in the order of July 9, 1931, had expired, on the ground that the said order of September 10,1931, was void for the reason that it was entered after the time had expired in the previous order of the court and was made without a showing of the plaintiff in error of accident or misfortune which could not reasonably have been avoided, and was without notice to the adverse party, all of which is shown by the case-made attached to the petition in error on file herein, and is in violation of the laws of the state of Oklahoma, more particularly section 538, O. S. 1931.

There is nothing in the case-made to show that any attempt was made to comply with the provision of section 538, supra, where in case of accident or misfortune, which could not have reasonably been avoided by the party appealing and by notice to the adverse party. No notice was served on the adverse party that an application would be made to the court for an extension of time to make and serve a case-made on the ground of accident or misfortune, which could not reasonably.be avoided. Unless this provision of law is complied with, an order extending the time made after the expiration of time originally allowed is a nullity, and á case-made served under the authority of such invalid order of extension does not give this court jurisdiction. Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

It is clear that if an order of extension might be made one or two days after the expiration of the time originally allowed, it might be made any number of days thereafter, if within the period fixed by law for taking an appeal.

It is well settled that an appeal to the Criminal Court-of Appeals may be taken by the defendant as a matter of right from any judgment rendered against him, but the manner or time in perfecting, such an appeal is a proper subject for legislative control, and the appeal must be , tallen in the manner prescribed by the law.

The case-made not having been served within the time allowed, nor within the time fixed in a valid extension of time, it was served too late. The motion of the defendant in error to- dismiss is sustained, and the attempted appeal is dismissed.

EDWARDS and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    DAVE EASTRIDGE v. STATE.
    No. A-8920.
    Aug. 5, 1935.
    (48 Pac. [2d] 869.)

      E. Blumhagen, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted B. Fisher, Co. Atty., for the State.
   DOYLE, J.

Upon information filed in the county court of Blaine county, charging that on or about the 8th day of March, 1935, he did unlawfully have in his possession four pints of whisky with the unlawful intent to sell, ■barter, give away, and otherwise dispose of the same, Dave Eastridge was tried and convicted. The jury were unable to agree upon the punishment. Motion for new trial was presented and overruled. On April 15th, the court entered judgment and sentenced defendant to be confined in the county jail for thirty days and pay a fine of $100 and the costs. To reverse the judgment, he appeals.

The state called two witnesses. Bayford Scott, sheriff, testified:

“I went to the home of Dave Eastridge March 8th, this year, I would say nine o’clock at night. Mr. Awtrey and Mr. Baskins, deputies, were with me. His home is in the southeast corner of Geary. In serving a search warrant, we searched the place. We found four pints of liquor. I found one pint 41 steps east of the house, four feet off his premises on other premises and four steps east from that I found three pints. I found tracks near the fence leading to the liquor. The first pint bottle found four feet over the fence had been opened and was not full. Defendant said he had been framed and some one else had planted it there. He told me the opened bottle belonged to him, he had taken a drink out of it.”

He further testified as follows:

“Q. Scottie, are you familiar with Dave’s place down there? A. I think so. Q. Do you know what reputation it bears in that community with reference to being a place of public resort?”

Objected to as incompetent, irrelevant, and immaterial.

“By the Court: Overruled. Exception. A. It bears the reputation of that kind of a place. Q. Is it a place where the public resort to? A. yes. Q. Are you familiar with the reputation of that place, that it bears in that community as a place where liquor is being bought and sold? A. Yes. Q. What is it? A. It has the reputation of being a bootlegging place where liquor is sold.”

Same objection, and motion to strike all testimony in regard to reputation of the place.

“By the Court: Overruled. Exceptions.”

Cross-examination :

“Q. I am asking you whether this liquor was found on the premises described in the search warrant. A. I don’t think it was; as I said, it was four feet over the line on the other premises and four steps on to the three. Q. Did the defendant at that time ask you to compare his tracks with those tracks found out¡ there? A. He did. Q. Did you make the comparison? A. No. Q. Who did you say lived in the house north of Dave’s? A. I believe Henry Tedford. Q. Did you have any occasion to make a search of his premises? A. I think some of the boys were making a search at that time.”

Clyde Awtrey, deputy sheriff, testified:

“Four feet east of the line we found one pint and found three more pints about five steps east of the line.”

He further testified:

“Q. You know if it is a place where the public resort to? A. It has that reputation. Q. Are you familiar with the reputation of that place in the community for being a place where liquor can be bought and is being sold?”

Objected to as incompetent, irrelevant, and immaterial.

“By the Court: Overruled. Exception. A. Yes. Q. What reputation does it bear, or bear at that time? A. It bears that reputation of being a place where you could buy whisky.”

Same objection and motion that answer be stricken.

“By the Court: Overruled. Exceptions.”

As a witness in his own behalf, Dave Eastridge testified :

“My age is 31 years. I have lived in Geary practically all my life. My home, house and four lots is just within the city limits. I was at home the night the officers searched my place. They said they found some liquor across the fence on Mr. Henderson’s place. It is a wheat field, with a dugout on it. I never kept any liquor on the premises and never sold any liquor. I talked with Sheriff Scott that evening and asked him to compare my track with the track he saw there. The track he found was smaller than mine.”

George McArthur testified that he was at defendant’s home on the 9th of March; that Mr. Eastridge asked him to compare the tracks with his own. That he made a careful examination and the tracks were much smaller than defendant’s.

It is contended that the court erred in permitting the state to introduce over objection, evidence of the reputation of defendant’s home as a place where intoxicating, liquor was kept for sale. This court has repeatedly held that evidence of general reputation of defendant’s home as being a place wherein intoxicating liquors are sold is admissible only upon the laying of the proper predicate, showing that his home was a place of general resort. Williams v. State, 25 Okla. Cr. 284, 220 Pac. 667; Lotta v. State, 30 Okla. Cr. 105, 235 Pac. 245; Yakum v. State, 30 Okla. Cr. 184, 235 Pac. 253; Millett v. State, 36 Okla. Cr. 309, 253 Pac. 1039.

In Severns v. State, 31 Okla. Cr. 281, 238 Pac. 217, it is said:

“In a prosecution for unlawful possession of intoxicating liquors, evidence of the general reputation of defendant’s home as a place where intoxicating liquors are kept for sale is incompetent to prove the charge.”

To justify or sustain a conviction of having possession of intoxicating liquor with intent to violate any provisions of the prohibitory liquor law, there must be evidence sufficient, not only to prove possession, but also to prove criminal intent.

In the instant case it was an undisputed fact that the liquor in question Avas not found on the premises of defendant and for this reason also it was inadmissible.

The evidence here complained of was inadmissible and obviously prejudicial.

The mere possession of intoxicating liquor, without intention to convey,.sell, or otherwise dispose of such liquor, is not a crime.

The statute (section 2626, Harlow’s Supp. 1934, Session LaAvs 1933, c. 153, p. 339, § 3) provides that the keeping in excess of one quart of intoxicating liquor “shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

It is urged that instruction No. 4, excepted to, is a comment on the weight of the evidence. The instruction is based on the statute quoted above. The part objected to is as follows: “But you are also instructed in this connection, that such evidence may be rebutted.by other evidence in the case, whether shown by evidence on part of defense or the state, in connection with the evidence proving possession.”

In this connection counsel for defendant requested the court to give an instruction defining, the phrase “prima facie evidence.”

We think the concluding words of the instruction above quoted, “in connection with the evidence proving possession,” is a comment on the weight of the evidence, but not sufficent to constitute reversible error if the instruction requested by defendant was given.

The term “prima facie evidence,” as used in the statute, is such evidence as, in the judgment of the law, is sufficient to establish the unlawful intent, and, if it be credited by the jury, it is sufficient for that purpose, unless rebutted, or the contrary proved, and evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt. Caffee v. State, 11 Okla. Cr. 485, 148 Pac. 680; Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823; Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071.

In Walton v. State, 53 Okla Cr. 24, 3 Pac. (2d) 212, 213, it is said :

“In instructing under this statute, the court must go further than tell the jury that proof of possession of the prohibited amount is sufficient to establish the unlawful intent unless rebutted or tbe contrary proven, since this in effect requires the jury to convict unless the defendant shall rebut or prove the lack of the presumed intent. Even though an accused is proven to possess more than the prohibited quantity, it is not obligatory upon the jury to convict, but they must believe from all the evidence beyond a reasonable doubt that the accused is guilty, and the court by some apt language should so instruct the jury.”

Finally it is contended that the evidence was insufficient to sustain a conviction. The state’s evidence was purely circumstantial and of such character that it did not eliminate every other hypothesis than guilt of defendant. And we think it was insufficient to show the alleged possession by defendant.

Before a jury is authorized to find a defendant guilty, there must be evidence sufficient to show that the offense charged was committed and to identify defendant with the commission of it as charged in the information. We are of the opinion that, as a matter of law, the verdict of the jury on the evidence cannot be sustained.

For the reasons stated, the judgment of the lower court is reversed.

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


text:
    CALVIN HANCOCK v. STATE.
    No. A-8881.
    Aug. 5, 1935.
    (48 Pac. [2d] 348.)

      Morris & Wilhite, for plaintiff in error.
    Amos Stovall, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, Calvin Hancock, was tried and convicted in the district court of Caddo county upon an information charging that on April 9, 1934, he committed the crime of second-degree burglary, and in accordance with the verdict of the jury he was on September 24, 1934, by the judgment of the court sentenced to imprisonment for a term of two- years. An appeal was duly filed in this court on March 25, 1935. On July 18, 1935, he filed his motion to dismiss the appeal, which, omitting title, is as follows:

“Now comes the plaintiff in error by his attorneys, Morris & Wilhite, and moves the court to< dismiss the appeal in the above entitled cause for the following reasons, to wit:
“That the plaintiff in error has abandoned said appeal, has surrendered himself to the authorities at the state reformatory at Oranite, Okla., and is no w serving his sentence.”

An appeal may be taken to this court by a defendant ■as a matter of constitutional right from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal' has been taken, unless good canse is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Huber v. State, 13 Okla. Cr. 209, 163 Pac. 329.

In the case at bar, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error.

It is therefore adjudged and ordered that the appeal he dismissed and the cause remanded to the district court of Oaddo county. The clerk of said court is directed to spread the mandate and to issue forthwith to the sheriff of said county commitment in accordance with the judgment of said court pronounced and entered on the verdict of the jury.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


author: PER OURIAM.

text:
    Ex parte LEE OWENS.
    No. A-8967.
    Aug. 9, 1935.
    (48 Pac. [2d] 1120.)
    Milton Keen, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER OURIAM.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained ; that said restraint is under an executive warrant of the Governor of this state, issued on a requisition by the Governor of the state of Wisconsin for the return of petitioner to that state as a fugitive. The jurisdictional facts are admitted.

Upon a hearing, no reason is made to appear for issuance of the writ. It is therefore denied.


text:
    A. G. MINYARD v. STATE.
    No. A-8900.
    Aug. 9, 1935.
    (48 Pac. [2d] 864.)

      O. H. Witt, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). This appeal is from a judgment of the district court of Muskogee county entered January 9, 1935, in pursuance of the verdict of the jury finding:

“The defendant, A. G. Minyard, guilty of the offense of aiding and assisting a fugitive from justice as charged in the information herein, and fix his punishment at confinement in the state penitentiary for a term of 1 (one) year.”

The first assignment challenges the sufficiency of the information. The charging, part of the first information is as follows:

“That A. G. Minyard did, in Muskogee County, and in the State of Oklahoma, on or about the Thirtieth day of July, 1934, and anterior to the presentment hereof, commit the crime of concealing an outlaw, a fugitive from justice, in the manner and form as follows, to wit: That the said A. G. Minyard did then and there knowingly, willfully, unlawfully, wrongfully and feloniously harbor, aid, assist and conceal Charley Martin, a person guilty of a felony, an outlaw and a fugitive from justice.”

A demurrer was interposed to this information. When the case was called for trial, the county attorney asked and was granted leave to file an amended information, which amendment was by adding the words, “by furnishing the said Charlie Martin with transportation from McAles-ter, Okla., to Muskogee, Okla., and by exchanging clothing with the said Charlie Martin.”

It was agreed that defendant’s demurrer be considered refiled and the same was by the court overruled.

The defendant contends that the information is insufficient in that it failed to allege the crime committed by Charlie Martin as the precedent crime, and failed to set out the acts constituting the crime committed by Charlie Martin or the acts by which he was aided by defendant to escape. That it merely states that he, Charlie Martin, was guilty of a felony, a fugitive, and an outlaw, and does not allege the felony of which Charlie Martin was guilty.

Ordinarily, where it is necessary to prove a precedent crime upon which hinges the particular crime charged, both should be pleaded in such detail in ordinary and concise language as will enable persons of common understanding to know the nature and import of the accusation; as, for instance, where one is charged as an accessory after the fact the original felony should be pleaded with the same degree of certainty as would be required to sustain a prosecution against the principal. Bishop’s New Crim. Procedure, Vol. III, “Accessory,”- pars. 5, 8, 11; 22 Cyc. 363; Tully v. Commonwealth, 11 Bush (Ky.) 154.

If the allegations in the information are insufficient to show that the principal was guilty of a particular felony, the allegations would be insufficient to put the accused on trial for aiding a felon to escape. Huckaby v. State, 22 Okla. Cr. 376, 211 Pac. 525.

If the alleged convict, Charlie Martin, was a convict serving a sentence on conviction of a felony, it should have been so alleged in the information.

This court is of the opinion that the allegations, “Charlie Martin, a person guilty of a felony, an outlaw and a fugitive from justice,” are mere conclusions, and for this reason the information does not describe the offense with that particularity which is necessary to inform the accused of every essential element of the offense intended to be charged and that it is not sufficiently direct and certain as to the particular circumstances of said offense. See State v. Franks, 21 Okla. Cr. 213, 206 Pac. 258.

It follows that the court erred in overruling the demurrer to the information.

It is also contended on .the part of the plaintiff in error that the verdict was contrary to law and to the evidence in the case, in that there was no evidence tending to show that the defendant willfully and knowingly aided or assisted the alleged fugitive from justice to escape. The theory of the state it seems was that the defendant, after reaching Muskogee county, had knowledge of the fact that the said Martin was a convict and fugitive from justice and that he should have left his car when they stopped at the Anthis filling station and that he had such knowledge when Martin compelled him to exchange their trousers. We think this theory is untenable. It is undisputed that the defendant was abducted in Pittsburg county by the said Martin and made, by said Martin, to go to Muskogee county. The defendant also had a duty to protect the property of his employer, the automobile he was driving.

While it is an established rule of this court that verdicts which receive the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense charged, however, when the evidence is all carefully considered, and it appears that it is wholly wanting in respect to some essential element of the offense charged, it is not only the province, but the duty, of this court to reverse the judgment.

No man ought to be convicted of a crime upon mere suspicion, or because he may have had an opportunity to commit it, or even because of bad character, and where circumstances are relied on for a conviction, they ought to be of such a character as to negative every reasonable hypothesis except that of the defendant’s guilt.

When we recall the presumption that the law always indulges as to the innocence of the defendant, and the necessity of establishing his guilt beyond a reasonable doubt, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant on the ground that the evidence was insufficient to warrant a conviction.

For the reasons stated, the judgment of the district-court of Muskogee county is reversed.

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


author: PER CURIAM.

text:
    W. M. COOK v. STATE.
    No. A-8864.
    Aug. 9, 1935.
    (48 Pac. [2d] 863.)
    W. O. Cromwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county of having unlawful possession of whisky and was sentenced to serve 50 days in jail and to pay a fine of $100.

On the date charged a deputy sheriff with a search warrant made a search of the basement of a place purportedly operated by defendant as a restaurant. No food or restaurant supplies were found and only some glasses, gambling devices, and whisky. Only a small quantity of whisky was found in the room open to the public, but in the basement to which a trapdoor led there were two cases of pint bottles of whisky. It was shown the place was frequented by users of alcoholic beverages.

Defendant earnestly urges the court erred in overruling his motion to suppress evidence. The motion challenges the sufficiency of the affidavit for search warrant for the reason it was made on information and states conclusions only. The affidavit was lost, hut its contents were shown by the printed form used and by the téstimony of the affiant to its contents. The court ruled correctly in holding the affidavit sufficient and in denying the motion to suppress.

Defendant next contends the court erred in overruling the demurrer to the information. The information alleges in substance that defendant had the possession of certain “spirituous, vinous, fermented, malt and intoxicating liquors, to wit: 105 pints of whisky with the unlawful and wrongful intent,” etc. Defendant argues since the information alleges possession of “* * * spirituous, vinous, fermented, malt and intoxicating liquors, to wit whisky,” that it charges more than one offense, and that in failing to allege it contains as much as one-half of 1 per cent, alcohol and fails to allege whether whisky is fermented or vinous that defendant may be again prosecuted for the same offense. This contention is without merit, the information charges but one offense and is sufficient.

The case is affirmed.


text:
    ALFRED ROWAN v. STATE.
    No. A-8889.
    July 19, 1935.
    Rehearing Denied Aug. 9, 1935.
    (49 Pac. [2d] 791.)

      Jack Southerland, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). Plaintiff in error, Alfred Bowan, was convicted in the district court of Jackson county of murder, and the death penalty assessed, upon an information charging him with the murder of Boy D. Gentry in said county on November 5, 1934. His motion for a new trial having been overruled and sentence of death having been pronounced upon him, the judgment and sentence has been brought to this court for review. The errors assigned and argued are as follows:

First. That there was error in overruling the defendant’s motion to suppress a certain confession.

Second. That the court erred in giving certain instructions.

Third. That the punishment is excessive and appears to he the result of passion and prejudice.

The plaintiff in error, a negro, had been working for Roy Laney 6 miles southwest of Frederick, and 4 weeks before the homicide had, with his wife, moved to the home of his wife’s parents in the city of Altus. He was arrested at Wichita, Falls, Tex., in the afternoon of the 8th day of November.

F. M. Dowdy testified:

“I am a city detective of Wichita Falls. I first saw the defendant, Alfred Rowan, about two miles north with two other negroes. Officer Hanaway was with me. We drove up to them and I searched this boy here and asked him what his name was. He said ‘George Williams.’ I asked him where he came from. He said ‘Grandfield.’ I asked him again what his name was. He said ‘Jake Wilson.’ I found a knife commonly called ‘East Dallas Special’ in his overalls pocket. I placed him under arrest and brought him to the station. The knife was admitted in evidence. I was present when he was questioned by Geo. H. Hodgins, Chief of Police.”

Geo. H. Hodgins testified:

“I am chief of police of Wichita Falls. The defendant was brought to the station a little after 3 o’clock. Later I questioned him. Lee Carter, deputy sheriff of Archer county, was present.”

Objection was made and the court directed the jury to retire. Thereupon counsel hands witness two sheets of paper, purporting to be the confession of one Alfred Rowan. Witness testified:

“This statement, Judge, wasn’t made to me; it was made to Mike Anglin, our assistant district attorney. I was present when it was made and when I asked him if he had killed Roy Gentry, he said he did. The statement was made freely and voluntarily on the part of the defendant.”

On cross-examination, he stated:

“After obtaining the confession from him, like I do in all cases, of which I have had many, I asked him if he was then ready to make a confession in writing. I was present at all times during the questioning and I did not use any force on this defendant.”

Jimmie Gonzella, superintendent of the bureau of identification, testified:

“I did not use any threats on him and I did not tell him I was going to turn him over to the mob.”

The defendant testified:

“My name is Alfred Rowan. I was arrested about 3 o’clock. They carried me to the chief’s office first, stripped my clothes, then gave me another pair of overalls to put on. They took my finger prints and picture. I denied my name to the Mexican fellow. He said I was going to get mobbed and I got scared. They wanted me to make my confession. They carried me upstairs and put me in a cell with three more boys. I was up there about an hour. They come back and got me. There was a whole lot of them there. Mr. Dowdy, Mr. Hanaway, and another man that cussed me and drew a pistol on me, then they took me to Chief Hodgins’ office. They sat around there and talked to me. Asked me ‘what you going to do.’ I told them I didn’t know. They said ‘you gotta do something.’ I said ‘yes, sir.’ He said ‘I want you to' tell.’ I said ‘I don’t know what to tell you.’ They said ‘yes you do and your going to tell’ and they got to telling me that my wife ‘done got killed.’ I up and told them, told them the truth about it and they wasn’t satisfied with that, and the Chief, he went out; then a fellow with gold in his teeth called me some names and said ‘your going to tell me or we’re going to kill you; we aint got no patience with negroes no how.’ I said ‘yes, sir, I know that’s so,’ then the Mexican fellow struck me with a pistol. I signed it. They say it was about 12 oclock, then I was brought over to Granite.”

After hearing the evidence the court held the alleged confession admissible. The jury was returned into court.

Chief Hodgins testified and identified the paper purporting to be the confession of Alfred Bowan, the defendant, and stated:

“I was present when the defendant signed this confession. I asked him if he killed Boy Gentry, he said he did so we called Mike Anglin, district attorney of Wichita county. I told him that Alfred Bowan wanted to make a confession as to the murder that he had committed and he said he would be glad to take it. I introduced him to Mr. Anglin and Mike asked him if he was ready to talk and he said he was. After the statement was prepared, the defendant read this statement aloud to all persons present before he signed it. He was asked to do that by Mr. Anglin and was then asked, ‘Is that a true statement?’ His answer was ‘it is and I will sign it’ and he did sign it in my presence and in the presence of D. B. Butherford, prosecuting attorney, and O. B. Jones, undersheriff of Jackson county.”

O. B. Jones testified he is deputy sheriff: of Jackson county and on a call went immediately to Wichita Falls and was present when the defendant read his confession, after it was written; that there was no force or threats of any nature made on the defendant to- obtain this confession ; that he saw the defendant sign it, and witnessed his signature.

Thereupon the confession was read to the court and jury as follows:

“State’s Exhibit C
‘The State of Texas, County of Wichita.
“Date November 8th, 1934
“To Whom it May Concern:
“After I have been duly warned by Mike Anglin that I do* not have to make any statement at all, and that any statement I may make may be used in evidence against me on the trial for the offense concerning which this statement is herein made, I wish to make the following voluntary statement to the aforesaid person:
“My name is Alfred Rowan. My address is Frederick, Okla. I am 29 year's old. Last Saturday night Pinkie Leonard and I went in Roy Laney’s house and stole four guns. We hid those guns out that night, moved them Sunday and Monday I took them and went to Altus. Pinkie did not go with me to Altus. At Altus I pawned the 410 gauge shotgun to some dark complected fellow that looked like a Jew. He first offered me five dollars on the gun then he said ‘that is the way it is with you crap shooters, get broke and bring me your stuff, then you don’t come and spend anything with me.’ I told him I did not even live there. Then he said, ‘I guess the gun is stolen then.’ I told him it was, so he put a dollar down and told me I could take the dollar, or go to jail. I took the dollar. I was going to catch a freight out of there, and was going down the railroad tracks. I sat down to rest. I was mad and discouraged. Mad at the white man that I had soaked the gun to, and discouraged because I was out of work. While I was sitting there, a white man came by and asked me where I was going. I told him ‘it’s none of your damn business.’ He said ‘Don’t get smart with me or I’ll kick your G-D-Áss.’ I said ‘that’s alright I will go on. If I hurt you,they will kill me, but if you hurt me they won’t do nothing about it.’ His wife called him then so I went on a little further and sat down again. Pretty soon this same man came on down where I was and said ‘I’ll knock your G- D- brains out, you black son of a bitch’ and threw a brick at me. I told him I would ‘get him’ and he said ‘alright, anytime you Avant me, I live right there’ and pointed out a house which was right there by the tracks Avhere I had seen this Avoman come out and call him. This was just about sundown and a little before dark. I went on down the tracks a little ways and sat doAvn. I was mad. I was mad at him and mad at the pawnbroker. I sat there a while I don’t know just how long, but I do remember that there was a train just fixing to pull out. I decided to go to this fellow’s house and whip' him. I went up to the house and it was lighted up I think with one lamp. I knocked and no one answered, I knocked again and said ‘hello.’ The man answered and I walked in. I had a pump shotgun Avith me, so when I walked in I could see the man lying in bed and the woman sitting on the side of the bed. He asked me what I wanted and I said ‘I have come to settle it with you. I am going to kill you.’ He said, ‘put your gun down and let’s cut it out.’ I told him-that I would not for that would give him too much advantage. He raised up out of bed and I shot him. He got out of bed and grabbed my gun and I broke to run. I thought he had a knife. He caught me and we started tussling, so I pulled my knife and opened it with one hand and my teeth and started cutting him. I finally threw him doAvn and jumped out a window. I do not know if the window was up or down, but I jumped out of it and ran. I got my guns and started out across a field. I finally came to a house that had a windmill and washed my head at the tin water tank. I was very thirsty and bleeding] I drank a lot of water there. After leaving there I came to a branch later that night and drank a lot more Avater. I Avalked across fields and plowed ground until I got to the river. I had on a imitation leather jacket fleece lined. I left that at the tank where I got water and Avashed my head. I also had a red sweater but I do not knoAV Avhere I left that, hut I pulled it off and threw it down before I got to Tipton. At Tipton I stayed in Fred Coulter’s barn. Near there I got a jumper from some colored folks. After getting the jumper I went across a field to a hay stack and changed my clothes. I left my shirt and underwear there. They were bloody. Later on during the day I pulled the heels from my shoes and threw them away. This was in a pasture in the same section where the haystack was.
“I went by my home and got a coat, cap and underwear from my wife. My mother-in-law and father-in-law were there. They both saw me and saw me getting this clothing. I went from my home on down to Burks Spur and left the jumper in a box car there. From there I went to Hollister and spent the night in the railroad station, that is part of the time in the station and part of the time in an old barn. The next morning I went on to- G-randfield and caught a train there for Wichita Falls. Just after I got off the train here in Wichita Falls I was arrested.
“When I went in that man’s house, it was my intention to kill him or get killed. That is the reason I told him I was going to kill him. I did that because I was mad at him. He was the same man that threw the brick at me that afternoon.
“[Signed] Alfred Rowan,
“Signed by the Arrested Party.
“Witness Mike Anglin
“D. R. Rutherford
“O. R. Jones
“Read aloud by deft — 12:45 am — 11-9-34—”

It is earnestly insisted that the alleged confessions of the defendant were made under such circumstances as rendered them involuntary.

A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613.

Extrajudicial confessions' are those which are made by the defendant out of court-, whether to an official or nonofficial person. It is elementary law that such confessions, in order to be admissible, must be entirely free and voluntary. The rule is well established that confessions induced by a promise of benefit or a threat of harm, made to the defendant by a prosecuting attorney or an officer having him in custody, or by any one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence. Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383.

In this state it is a settled rule of practice that the admissibility of a confession where objection is interposed is primarily a question for the court, and should be determined preliminary to allowing the confession to go to the jury, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064.

A statement, declaration, or admission made by one accused of crime, explaining suspicious circumstances, for his own defense, from which the jury may or may not infer guilt, is not a confession, and does not come within the rule that confessions must be voluntary to be admissible. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613.

In the case under consideration the court had the witnesses before him, could observe their general conduct and appearance, and their manner of testifying, and the interest of the witnesses was a proper subject for consideration and the burden was on the defendant. The court properly rejected the first confession offered. That the other two confessions were properly admitted there can be no doubt.

After a confession has been admitted, the defendant is entitled to have the evidence in regard to the manner in which it was obtained given anew to the jury, not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and. value should be given to it as evidence; and the jury may disregard it if they are not satisfied that it is voluntary.

In this connection the court instructed the jury as follows:

“No. It. The state has introduced certain statements, both oral and written, claimed to have been made by the defendant while he was under arrest and in the custody of an officer charged with the offense for which he is now on trial, and which statements, in part, are relied on to establish the defendant’s guilt of the offense charged against him; and in this connection the court instructs you that before such statements or confessions made by defendant after he has been arrested, relating to the offense for which he is under arrest, can be considered as evidence of the defendant’s guilt, it must appear that the same were voluntarily made and were not procured or induced by promises, directly or indirectly made, that such statements would result in the defendant’s benefit or advantage, or that the same was obtained as a result of force, fear, oppression or coercion. But if such confessions or statements, as introduced in evidence in this case, were made by the defendant freely and voluntarily and were made under circumstances showing that he was not induced to make the same by the promise or assurance from those who had him in custody that it would be to his interest to make the same, or should you find that the statements or confessions were not induced or resulted from fear, force, coercion, or oppression, but were freely and voluntarily made; then you should consider the same in your deliberation on this case and give the same just such weight and value as you deem them entitled to-.
“By the term ‘voluntarily)’ ho wever, is not meant that it must have been spontaneous; that is, that the same came from the suggestion of the defendant.
“A confession, statement, or admission by the defendant does not have to proceed wholly at the suggestion of the defendant to be voluntary, and the fact that the same were elicited by questions propounded by the parties who had him in charge will not of itself render the same inadmissible.
“Should you be of the opinion that one or more of said purported confessions, statements or admissions were free and voluntary and some one or more were not free and voluntary; then you should reject such as you find were not free and voluntary and give the same no weight or consideration whatever, and give consideration to such as you find were free and voluntary, if such be your findings.
“Exception allowed.
“Frank Mathews, Judge.”

The instructions given by the court are a model set, fully covering every phase of the law presented by the evidence, and were more favorable to the defendant than he had any legal right to demand.

One of the grounds of the motion for a new trial and assigned as error is that the extreme penalty assessed by the jury in its verdict is excessive.

No more serious duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. We have carefully read the record independent of the assignment of errors and we find no error in the proceedings. The evidence, consisting in part of the voluntary confessions of the defendant, conclusively and beyond any possible doubt, establishes his guilt of the crime. To all appearances a more wanton, brutal, and cruel murder was never perpetrated, and the jury was clearly warranted in the verdict which they rendered under the law and the evidence in the case. Any verdict other than the one rendered would have been a reproach upon the due administration of justice in this state.

We are entirely satisfied that the defendant had a fair and impartial trial in accordance with the most rigid rules of the law. By his own premeditated and diabolical act he has forfeited his life, and the stem but just penalty of the law must be enforced upon him. The judgment appealed from is therefore affirmed.

The day fixed for the execution of the judgment and sentence having passed, owing to the pendency of the appeal, it is considered, ordered, and adjudged that the judgment and sentence of the district court of Jackson county in this case be carried into execution on the 20th day of September, 1935.

The warden of the penitentiary at McAlester is ordered and directed to cause the sentence to be executed according to law.

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


author: EDWARDS, J.

text:
    JOHN C. SEICK v. STATE.
    No. A-8869.
    Aug. 9, 1935.
    (48 Pac. [2d] 355.)

      Wright & Wright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Paul W. Updegraff, of counsel), for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county of having possession of intoxicating liquor and was sentenced to pay a fine of $300 and to serve 90 days in the county jail.

At the time charged the sheriff and three deputies went to defendant’s premises and found a quantity of whis-ky in several different containers. A motion to suppress on ground of illegal search was overruled. Defendant did not take the stand and offered no testimony.

The only contention that requires discussion is that the search of defendant’s residence was illegal. Section 30, art. 2, of the Constitution is:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as. may be the place to be searched and the person or thing to be seized.”

The affidavit for a search warrant describes the premises as the “S. V2 of S. E. %, Tp. 10, R. 3 W. of I. M., in Cleveland county, Okla.” No section is named and it is apparent the S. % S. E. % of a township would contain four and one-half sections. The warrant reads “S. % of S. E. 14. of section 15, Tp. 10, R. 3 I. M. Cleveland county.” The requirement of the Constitution that the affidavit shall describe as particularly as may be the place to be searched is not met by an affidavit which describes lands amounting to four and one-half sections. Brandt v. State, 34 Okla. Cr. 400, 246 Pac. 1106; Hall v. State, 34 Okla. Cr. 334, 246 Pac. 642. In the Hall Case this court held:

“An affidavit for search warrant for the search of an entire section of land is in violation of section 30, art. 2, of the state Constitution.”

The search warrant does not follow the description of the affidavit, but adds to it a further description of “section 15” and omits the designation of “west” in the description of the range. Ordinarily, this east or west range description would not be of any consequence, but since Cleveland county is in both range east and west it becomes material. The authority for a search warrant is an affidavit showing probable cause. The warrant must in all material respects conform to the affidavit. The officer issuing it may not materially change, enlarge, or vary the description in the affidavit. Thomas v. State, 38 Okla. Cr. 284, 287, 260 Pac. 515; Alkire v. State, 51 Okla. Cr. 410, 2 Pac. (2d) 98; Wingo v. State, 54 Okla. Cr. 321, 20 Pac. (2d) 586. In Cornelius on Search and Seizure, § 131, it is said:

“Under the strict construction which the courts have applied to search warrant proceedings, any material variance between the averment in the affidavit with respect to a description of the property sought to be searched and the warrant itself, will render the search warrant proceedings void, and will render any search made thereunder illegal."

This is supported by numerous illustrations of the rule stated. In Alkire v. State, supra, this court held:

“Search warrant cannot be issued to search place other than that described in affidavit for warrant."

It follows that since the search warrant departed from the description in the affidavit it is invalid. The state admits the warrant is probably void, but contends that defendant waived the search warrant and invited the search. This court has many times held in substance that where a peace officer enters upon the premises of another and informs him he has a search warrant and the owner answers that he may go> ahead and search or in similar language, he does not waive his constitutional rights, but such language is construed as a statement of an intention not to resist and not as an invitation to search. Hancock v. State, 35 Okla. Cr. 96, 248 Pac. 1115; Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; Shockley v. State, 35 Okla. Cr. 437, 251 Pac. 514; Meno v. State, 197 Ind. 16, 148 N. E. 420 (superseded by opinion 164 N. E. 93). For reasons assigned, the case is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    JESS DAVIS v. STATE.
    No. A-8848.
    Aug. 9, 1935.
    (48 Pac. [2d] 339.)

      Paul D. Sullivan and Virgil Martin, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of larceny of domestic fowls and was sentenced to serve one year in the state penitentiary.

Mrs. Pauline Campbell was the owner of certain turkeys. On the date charged 42 of them were missing. On the next morning her husband notified the sheriff, and on the following day the sheriff arrested defendant and his brother-in-law, one Shortes. Defendant was well represented. The defense was alibi.

Mrs. Campbell testified that a few days before she missed the turkeys she had found corn strewn from her place to near defendant’s house; that after the loss of the turkeys $65 was given to her by one Shelton, deputy sheriff. A Mrs. Dunford testified that on two occasions shortly before the loss she had seen some one driving the turkeys toward defendant’s home and on the latter occasion recognized defendant as the person driving them. This she reported to the sheriff. She also testified to seeing the corn and was with Mrs. Campbell when $45 was paid her. Earl Bussell, sheriff, testified he arrested defendant and Shortes; that defendant told him he sold some turkeys at Chickasha; that the next day defendant told him that under the name of Dunn he sold the turkeys in Oklahoma City. He further testified defendant gave $3'5 to Shortes in his presence, with instructions to give it to Mrs. Campbell. Campbell corroborated the sheriff as to the conversation in the jail and of defendants giving the money to Shortes. Skelton testified Shortes gave him $45 to give to Mrs. Campbell.

Defendant offered some testimony tending to prove an alibi and testified in his own behalf denying any connection with the larceny or that he made any statements to the officers or that he paid any money to Shortes; for Mrs. Campbell. It is evident the jury did not believe this.

Defendant contends there is no sufficient proof of corpus delicti. This is not tenable. As just stated, there is testimony of the larceny of the turkeys by the owner, and testimony of an attempt by some one to toll them away by scattering corn, and testimony that defendant was seen driving them, testimony of statements made by him, and his paying the owner for them. Surely this is sufficient proof of corpus delicti. The corpus delicti simply means that the crime charged has been committed by some one. When that has been proved, then in order to warrant a conviction the state must prove the accused committed it. The latter proposition is distinct from the proof of corpus delicti, although some of the decisions include both propositions as a part of the definition of the term “corpus de-licti.” 7 R. C. L. 774.

Complaint is also made of misconduct of the county-attorney. In one instance, while defendant was being cross-examined, he was asked in substance why he was SO' nervous. The county attorney in argument said that indicated his testimony was false. He further said in substance that under defendant’s testimony his wife and people knew his whereabouts at the time of the larceny and he wondered why the wife was not there as a witness. Also he told the jury one convicted is entitled to a reduction of sentence for good time and that the jury in fixing the punishment should take that into consideration. The court sustained objection to this. If this1 part of the argument was error, it was harmless, since the jury did not fix the punishment but left it to the court. Comment on the failure of a defendant to call his wife to testify is held not to be error. Wissinger v. State, 39 Okla. Cr. 324, 329, 264 Pac. 631. We find no material error.

The case is affirmed.

DAVENPORT, P. 3., and DOYLE, J., concur.


author: DAVENPORT, P. J.

text:
    B. RICKS v. STATE.
    No. A-8861.
    July 19, 1935.
    Rehearing Denied Aug. 9, 1935.
    (49 Pac. [2d] 810.)

      Hatcher & Bond and J. W. Osmond, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of receiving stolen property of the alleged value of $3.50, and his punishment fixed at a fine of $200.

The evidence in this case shows that P. B. Johnson, a farmer, on January 27, 1934, drove a team of mules to Chickasha, and stopped them on one of the public streets of the said town; when he returned to his team to go home in the evening, he found his check lines had been taken from his team by some one, and immediately reported it to the chief of police; the chief of police, on learning the check lines had been stolen, went to the place of business of the defendant, which is a second-hand store, and also a restaurant in the adjoining room; just why the chief of police suspected Bill Johnson, who stole the check lines, is not brought out in the record; Bill Johnson had sold the check lines to the defendant. The chief of police testified he went to the defendant’s second-hand store and asked him where the check lines were that Bill Johnson had sold him; the defendant told the chief where the check lines could be found, and the lines were found in the restaurant side of defendant’s place of business behind a counter in a box.

The defendant did not testify, but called two witnesses who stated that when Bill Johnson wanted to' sell the defendant the check lines, he asked him if they were hot, and Bill Johnson told the defendant they were not stolen. There was some evidence introduced to show that Bill Johnson had heretofore been convicted of burglary, and also- that some of the stolen property was found at the defendant’s home. Rill Johnson admitted stealing the check lines, and admitted he sold the check lines to the defendant, and that he was at the time of the trial being held in jail as an important witness in the case against this defendant.

The evidence in the case is sufficient to- sustain the conviction. Every act of the defendant in connection with the buying of the check lines and secreting them in the restaurant of his place of business shows that defendant had knowledge of the fact that the check lines had been stolen by Bill Johnson. The defendant had known Bill Johnson for many years.

The evidence is sufficient to sustain the conviction. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal. The punishment imposed, we believe, is excessive, considering the value of the property stolen. The punishment is therefore modified from a fine of $200 to a fine of $100, and, as modified, the judgjnent is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    JIM HART v. STATE.
    No. A-8908.
    Aug. 9, 1935.
    (48 Pac. [2d) 337.)

      Brown & Brown, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged defendant Jim Hart jointly with his brother John Hart and others, with having on the 26th day of April, 1934, broken into and entered a storehouse located in the city of Marietta with intent to steal certain corn, the personal property of Paul Miller.

Upon his separate trial the jury returned their verdict finding defendant guilty of burglary in the second degree, but were unable to' agree on the punishment. A motion for a new trial was filed, presented, and overruled. On November 15, 1934, the court pronounced judgment and sentenced defendant Jim Hart to imprisonment in the penitentiary for a term of three years and six months. From the judgment, ,he appeals.

The information is in the ordinary and often approved form, and hence it is not necessary to reproduce it in this opinion.

The only ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

The following facts are undisputed or fairly shown by the evidence: Paul Miller had a carload of shelled corn stored in a warehouse near the depot in Marietta. The corn was sacked, 100 pounds to the sack. On the night of April 26, 1931, the two locks on the door of the warehouse were broken off and it was entered and about 200 sacks of this corn stolen. The breaking and entering and the taking of the corn was discovered by Mr. Miller the morning of April-27th. The sheriff of Love county was immediately notified and an investigation of the premises was at once made. It appeared that the corn taken out was hauled away in a truck or trucks. Corn had spilled where it had been loaded and along the road where it had been hauled, and by following the spilled corn, Miller and the officers trailed the same to the house of defendant John Hart, where about 60 sacks of the stolen corn were found, and as some spilled corn led away from defendant John Hart’s, this was followed to the home of defendant Jim Hart, about a half mile south, where another 60 sacks were found about 10 o’clock that morning. This corn was positively identified by Mr. Miller as his property, and was taken possession of by the sheriff and returned to Paul Miller. No effort was made by defendant Jim Hart to recover it although he claimed he bought this corn.

As a witness in his own behalf, Jim Hart testified:

“I live seven miles south of Marietta and a quarter east. My brother lives a quarter north of me. I did not know where the Miller warehouse was. I did not break and enter that warehouse. I bought the corn. Two boys came there, one was named Joe Woods from G-ainesville. They drove there in a truck and Woods got out and asked me if I wanted to buy some corn, I told him I needed some. He said, ‘This fellow out there has got some corn and he will sell it to you if you will buy what he has. He will sell it to you a,t a sacrifice if you will buy all of it.’ I told Mm I didn’t know, and so I walked out there and he said if I would take it all that he would sell it at a dollar a sack. There were 60 sacks and I paid $60 for it and they drove off. Then I noticed Jack Coker sitting ont there on the well curb.” On cross-examination he stated: “Joe Woods had the corn but I paid the other fellow. He had a Chevrolet truck with a rocking-board trailer on it. They left my place between seven and seven-thirty. The sheriff told me he would have to hold the com until the case was settled. I went over to Gainesville to find Joe Woods and the other man and they told me he was dead.”

At the close of the evidence, there was a motion for a directed verdict of acquittal for the reason that the evidence was insufficient to warrant a conviction.

It is insisted that there was no proper or sufficient evidence connecting this defendant with the burglary or taking of the com. We think this contention is without substantial merit.

It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 13 Okla. Cr. 511, 165 Pac. 617; Grahm v. State, 12 Okla. Cr. 84, 152 Pac. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to determine.

Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was taken from the owner.

Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.

In order to establish defendant’s guilt, it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the warehouse about the time the burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

The jury evidently did not believe the explanation made by defendant as to how he came into possession of the stolen corn.

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show defendant’s guilt, or the evidence fails so far to support the verdict that the fair inference is that the jury must have acted from passion or prejudice. We have set forth a substantial statement of the material testimony introduced by the state, and it is apparent that there is substantial evidence tending, to show defendant’s guilt, and we think it is amply sufficient to support the verdict of the jury.

Accordingly, the judgment is affirmed.

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


author: DAYENPORT, P. J.

text:
    RAY BOURNS v. STATE.
    No. A-8897.
    Aug. 16, 1935.
    (48 Pac. [2d] 353.)
    Sigler & Jackson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAYENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to' as the defendant, was convicted of the larceny of a cow, and sentenced to be imprisoned for a period of two years.

The testimony on behalf of the state shows that W. L. Wilson lived in Carter county, north of the town of Wilson; on the 5th day of May, 1932, he had a jersey cow disappear from his place; in August, 1933, he found the cow in the possession of the defendant. W. L. Wilson, the owner of the cow, had no knowledge whatever as to who stole the cow.

Ellen Conley, a witness for the state, testified in substance to' the same facts as did W. L. Wilson.

W. A. Ward, a deputy sheriff, testifying for the state, stated:

“I found the Wilson, cow in defendant’s possession and the defendant in a conversation with me claimed he bought the cow for $22.50 from some one at the Pair Grounds, in Ardmore; later, in the county attorney’s office, the defendant admitted he bought the cow from a man by the name of Geo. Van Bushkirk.”

The defendant introduced several witnesses who testified they had seen the Wilson cow on Van Bushkirk’s farm, and that she did not appear at defendant’s place until some time in August, 1933.

The father of the defendant, J. G. Bourns, testified the defendant brought the cow to his farm in 1933. A. L. Bourns, a brother of the defendant, testified he knew the brother got the cow in question some time about the 5th of June, 1933.

The defendant, testifying in his own behalf, stated:

“I bought the cow on the 5th of June, 1933; I had never seen the cow before that date.”

Geo. Van Bushkirk testified, in rebuttal for the state, that he did not own any cows at the time the defendant claims to have bought the cow from him; that he had not sold the defendant a cow; had never seen the cow at the time the defendant alleges he bought her from him.

The father of Geo. Van Bushkirk, testifying in rebuttal, stated that during the year and about the time the cow was stolen from Wilson, he owned six milch cows, two red ones, one black and white, one big brown, and two yellow ones, rather dark; that he still owned five of the cows; one he sold to Taliaferro.

The substance of the testimony is the state showed that W. L. Wilson had lost a jersey cow in May, 1932; that in August-, 1933, she was found in the possession of the defendant; the cow’s ears had been clipped where she had wire marks on them, and she had been dehorned. The defendant attempts to account for his possession by testifying he bought the cow from Geo. Yan Bushkirk. Geo. Yan Bushkirk denies he sold the defendant the Wilson cow; had nothing to' do with the cow and knew nothing about her until after the defendant was charged with the larceny of the cow.

The defendant has assigned six errors alleged to have been committed in the trial of the case sufficient to warrant a reversal. The first error that will be considered is the sixth: “The judgment is contrary to the law, and contrary to the evidence.”

The defendant in his brief states that the questions raised are all involved in one proposition, that is, the effort to show that the defendant had possession of the stolen cow approximately eighteen months after she was stolen, and also whether or not there was any testimony upon which a conviction could be based. Citing in support of his contention, Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110.

There is no dispute as to- what the law is about the possession of recently stolen property. In this case the length of time that intervened between the time the cow was stolen and was found in defendant’s possession was so great that the possession within itself could not have been considered the possession of recently stolen property, but the defendant did not stand upon that proposition of law, but undertook to explain his possession by stating where and from whom he purchased this cow. The party from whom he claimed to have purchased the cow testified for the state and directly contradicted the statements of the defendant. This makes a conflict in the testimony and takes the question of the possession of recently stolen property out of the case, and leaves to be considered the question as to whether the testimony, conflicting as it is, is sufficient to' sustain the verdict and judgment. This court has many times held that the question of the sufficiency of the evidence is a question for the jury.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, the court stated:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Johnson v. State, 57 Okla. Cr. 239, 47 Pac. (2d) 605.

In considering, the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude the defendant was guilty as charged, and where there is a basis the case will not be reversed for insufficiency of the evidence.

The defendant in his discussion argues that the court erred in refusing to give his requested instructions. The record has been carefully examined, and we hold that the general instructions of the court fully covered the law as applicable to the facts, and the court did not err in refusing to' give the requested instructions.

Tbe evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial.

The other errors discussed are without merit.

The judgment is affirmed.

ED WANDS and DOYLE, JJ., concur.


text:
    GOLDIE McCOLLUM v. STATE.
    No. A-8886.
    Aug. 16, 1935.
    (48 Pac. [2d] 872.)

      Geo. L. Hill and Gotcher & Gotcher, for plaintiff in error.
    ■Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Pittsburg county and his punishment fixed at death. He was 25 years old, was an inmate of the state penitentiary, being confined on two convictions for robbery with firearms — one from McIntosh county and one from Lincoln county. The deceased, Wilkins, was also an inmate of the penitentiary, having been convicted nine times. The witnesses both for the state and defendant were inmates of the penitentiary except the guards and officials. Defendant admitted stabbing and killing Wilkins and pleaded self-defense.

The facts are about as follows: Defendant and deceased both worked in the prison laundry, though not in the same department. The killing occurred on Sunday afternoon in the open yard. Defendant, with a dirk, dagger, or other sharp weapon, stabbed Wilkins, inflicting a wound from which he died about twelve hours later. It was shown by the state that at the time deceased was stabbed, he was sitting on the bench under the edge of an open shed, with quite a number of prisoners near about. He was talking to a prisoner named Perry, who was sitting facing him. Perry testified some one came up behind deceased; that he saw a motion of the arm, and deceased immediately jumped up, put his hands to his side, and started hastily toward the penitentiary hospital. His testimony is:

“Q. On April 15th, 1934, on Sunday afternoon about two o’clock did you see Tommy Wilkins, now dead? A. Yes, sir. Q. Where did you see Tommy? A. Sitting on a bench in front of the hospital. Q. And where were you while Tommy was sitting' on that bench? A. I was sitting down on my heels in front of him. Q. Facing him? A. Yes, sir. Q. As you were sitting in that position facing Tommy what did you see happen? A. I saw somebody come up behind him pretty close. I didn’t pay any attention to who it was. Tommy jumped up and put his hand over, I believe, his left kidney and went from there to the hospital. * * * Q. Well, before this man came up to the back of Tommy Wilkins, Tommy was not stabbed, was he? A. He wasn’t, no, sir. Q. And when this man that came up back of him turned and went away, Tommy was. stabbed? A. Yes, sir. Q. And stabbed in the back? A. Yes, sir.”

Other witnesses identified defendant as the person who stepped up behind and stabbed deceased. James J. Kelly, a prisoner, testified:

“Q. I want you to state to the jury just where you saw Tommy Wilkins just prior to the stabbing? A. I saw him — there was a long bench opposite from -where I was standing on — and he was sitting on it. Q. Sitting on the bench? A. Yes, facing me. Q. Facing who? A. Me. Q. Towards you? A. Yes. Q. Was there anybody in front of Tommy Wilkins? A. Yes. Q. What position was that man in? A. Well, he was on the ground, kind of squatted down. * * Q. Who was he? A. O’Dell Perry. Q. No w, after you saw Wilkins in that position and O’Dell Perry in front of him what did you see happen? A. Well, I saw Goldie walk up behind Wilkins and I saw him make a motion with his arm.”

Deceased made a dying declaration saying the wound was inflicted by defendant and that he did not know any reason for his attack. The fatal blow inflicted a wound just over the left kidney, ranged downward, and entirely through the body. It was about two inches wide at the point of entrance, with a small hole at the point of exit. After striking the fatal blow, defendant withdrew the dagger, wiped it off, stuck it under his coat, and walked away. He was apprehended some three hours later. During this time he made no report of the matter. He had concealed the weapon he used and it was not found. When first asked about the stabbing, he informed the prison officials he had stabbed deceased, because “he was driving me up a crack,” but made no claim of self-defense until the day of the trial. Then, in his own behalf, he testified deceased had determined to kill him because he believed defendant had reported him for selling dope and had brought about a “shakedown”; that on the Wednesday preceding the stabbing deceased sent for a bottle of milk, and defendant saw him pour some of it into a cup and pour another liquid substance in it from a vial; that deceased then gave this to another man in the laundry, who brought it to defendant and asked him to drink it, stating it was good; that he was suspicious, stuck his finger in it, and it burned; that he did not taste it, believing it to be poison. Defendant testified that on the day preceding the stabbing he was in line leading to' the mess hall; that deceased and another man were standing near the entrance, and when he got even with them the other man struck him over the head with an iron bar wrapped in cloth, and deceased attempted to kill him with a knife, but he jumped out of line, ran, and escaped; that just prior to the stabbing defendant was exercising in the prison yard and because of fear of deceased he kept near the north wall; that probably an hour and a half before he stabbed deceased, a prisoner, an old man fifty or fifty-five years old, whose name or number he did not know, without solicitation, gave him a knife; and this prisoner informed him he needed a knife; to take it and defend himself; that he was in danger; that he had been watching Wilkins and his friends and heard a lot of talk that they were going to kill defendant. He detailed the facts of the stabbing; as follows:

“A. Well, and then I walked on down over towards the shed' — the south end of the shed. See? That is over towards the Sergeant’s office and when I walked down towards the South end of the shed, why, then I walked over towards the North, the same route I went. * * *
“Well, when I walked through the shed and came back going north over towards these gates, why, the first thing I knew this Tommy Wilkins came up — See?—off the bench where he was sitting down like this (indicating) and he came up with a knife and swung at me and the knife that I had between my left arm and the coat of my jumper— and I come up with the knife I had and come out with it like this — like I have got that pencil (indicating) and I struck at him and then I jumped back out of the way and he throwed this knife down that he had and run over towards the hospital. * * *
“Well, I felt it kind of Thug’ against my hand like that (indicating) and I was pretty sure I hit him.”

Some parts of his testimony are supported by other prisoners, which presents a conflict; but the jury by its verdict found the issue against defendant. The state presented testimony to rebut this claim by showing that no such difficulty as claimed by defendant took place on the preceding day, and further testimony that about 15 or 20 minutes before defendant stabbed Wilkins he had fatally stabbed another prisoner in almost the same manner; that is, by a dagger wound over the left kidney, the blade of the weapon penetrating, through the body and to the skin. The state has made out a case of murder, coldly planned and cruelly executed.

The first contention made is that the court erred in admitting testimony of the killing of another person by de-fondant a few minutes before the stabbing of deceased. This was first offered by the state in chief; objection was made and the court excluded the testimony, but at the time stated circumstances might arise which would make it admissible in rebuttal. When offered in rebuttal, objection was again made, and the court after some preliminary hearing- in the absence of the jury, admitted it. In his instructions the court, in substance, told the jury that evidence had been introduced tending to prove defendant, a short time prior to the stabbing of Wilkins, had committed a similar assault upon another person, and that such testimony was offered only as tending to throw light upon the offense charged and as bearing on the question of self-defense; that it was for the jury to say whether or not it did have such tendency, and unless they did so find, it should not be considered for any purpose, but in any event it could not be considered for any purpose except as tending to throw light on the offense charged; and that even if they should believe defendant committed an assault upon • another person, they could not find him guilty of the offense for which he was on trial, unless they believed from the evidence beyond a reasonable doubt he was guilty of such charge. No further request for instructions was made and no exception taken to the instructions given.

The relevancy of evidence is discussed and has had the attention of this court in many cases. The general rule is the state cannot show that an accused person on trial has committed some other independent crime and that he cannot be convicted for one offense by proof that he committed another offense, however persuasive such evidence may be from a moral point of view. This general rule has many exceptions which it is not necessary to enumerate. The . particular exception here applicable is stated in numerous cases and without dissent, that any fact is admissible in evidence which tends to shed light on the intention of a defendant charged with crime, even though it may tend to prove a separate offense. In Cross v. State, 11 Okla. Cr. 117, 143 Pac. 202, this court said:

“Evidence is admissible, in the trial of a criminal cause, which tends directly to prove the guilt of the accused, although it may also' show, or tend to show, the commission of a separate and distinct felony, and this is true although the admission of such testimony may arouse resentment in the minds of the jury and result in a greater punishment than would ordinarily be inflicted.”

This was reiterated in Ellis v. State, 54 Okla. Cr. 295, 19 Pac. (2d) 972. The following cases are enlightening: Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467. In Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114, citing numerous authorities in support, it was held:

“Any fact is admissible in evidence which tends to shed light upon the intention of a defendant in the commission of an act for which he is upon trial, even though it may prove a separate and independent crime.
“It is competent in a case of homicide to put in evidence the conduct, actions, and general demeanor of a defendant before the killing for the purpose of proving that he was armed and in a vicious humor, provided such conduct is so near the time of the homicide that it tends to show the state of mind of the defendant at the time of the killing.”

In the instant case, as stated, defendant testified he acted in self-defense in stabbing and killing Wilkins; that the knife with which this was done had been given him by another prisoner for his self-defense. This evidence that he had stabbed and killed another prisoner a few minntes before was admissible as rebutting his testimony that the knife had been given him by another person to defend himself against Wilkins and that he had the knife for self-defense. It also' rebuts the testimony of self-defense, as it shows the conduct, general demeanor, and vicious mind of defendant just prior to the killing of Wilkins and tended to' show that defendant was the aggressor. It also has some tendency to identify defendant as the person who' stabbed Wilkins, since the two- homicides were committed in close proximity, both as to place and time, in a particular manner, and with an unusual weapon.

We have read the testimony closely and have carefully considered the briefs. There is a conflict in the testimony for the state and that for the defendant, but the verdict is sustained by an abundance of evidence and is not against the weight of evidence. We perceive no error of any consequence and are satisfied defendant had a fair trial. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Pittsburg county be carried out by electrocution of the defendant on the 24th day of October, 1935.

DAVENPORT, P. J., and DOYLE, J., concur.