text:
    FRED CAMERON et al. v. STATE.
    No. A-2733.
    Opinion Filed July 28, 1917.
    Rehearing Denied September 25, 1917.
    (167 Pac. 339.)
    1. INTOXICATING LIQUORS — Nuisance—Sufficiency »f Evidence. Evidence examined, and held sufficient to sustain a judgment of' conviction for maintaining a liquor nuisance.
    2. EVIDENCE — Reputation—Liquor Nuisance. Where defendants are charged with maintaining a liquor nuisance, evidence of the-general reputation of the place, as to its being a place where intoxicating liquors were kept for sale, and where people congregated to drink the same, is admissible.
    3. INTOXICATING LIQUORS — Liquor Nuisance — Evidence. For other evidence held properly admitted, see body of opinion.

      Appeal from County Court, Oklahoma County; < Wm. H. Zwick, Judge.

    Fred Cameron and' others were convicted of maintaining a liquor nuisance, and appeal.
    Judgment as to-each affirmed.

      Ledrue Guthrie, for plaintiffs in error.

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

Plaintiffs in error were convicted in-the county court of Oklahoma county for unlawfully maintaining at No. 203*4 North Broadway, in Oklahoma City, Okla., a .public nuisance, in that said building, while-under the control and in the possession of said plaintiffs' in error, was a place where intoxicating liquors were kept for sale, and where people congregated for the purpose of drinking the same. Cameron and Pence were sentenced by the court to serve a term of imprisonment of six months each in the county jail, and to pay a fine of-$500 each. Wilson w!as sentenced to 30 days’ imprisonment and to pay a fine of $50. The evidence in the case-discloses a state of facts which shows that the defendants Cameron and Pence were the owners- of the business, and that Wilson aided and abetted in the conduct of the same, although not having any financial interest in the business.

It is contended that the evidence is insufficient to-sustain the verdict. With this contention this court cannot agree; the evidence in effect establishing the following: That the place at No. 203% North Broadway, Oklahoma City, during the period beginning about the 1st day of July, 1915, and extending to November, 1915, was a place where intoxicating liquors were kept for the purpose of barter and sale, and where divers persons visited and congregated for the purpose of drinking the same;, that the said defendants were occupying and in control of these premises during that period of time; that the place, wlas fitted up with an improvised bar in the rear of the-building, and in the front was a pool table and card table; that frequent raids were made by the police officers of' Oklahoma City upon the said premises during that period of time; that the odor of whisky was very pronounced in said premises at all the times that these raids were made; that empty whisky bottles were found concealed upon the. premises, and upon one occasion the defendant Wilson was caught in the act of emptying whisky into the sewer on said premises; that divers persons other than the defendants were in and upon the premises at various times-these raids Were made, and were met upon the stairway coming out of the premises with the odor of whisky upon their breaths; that people were seen to come from the premises in an apparent state of intoxication; that a lookout was stationed at the head of the stairs leading into the premises, and that these various defendants at different times were acting in the capacity of a lookout; that a system of code signals was Used, by which one defendant, who was stationed across the street, would signal to another defendant in the building when the officers approached to make a raid; that these defendants were on various occasions seen to carry packages and bottles into said premises, sometimes in their pockets, and at other times -in grips and suit cases; that during all of said period of time the place had a general reputation of being a place where intoxicating liquors were kept for sale and disposed of in violation of the prohibitory liquor laws of the state; that whisky was found concealed under the rear -stairway to the building in a plant that had been established there under the ground.

The evidence also discloses that the defendant Pence resided at No. 1429 West Main street, Oklahoma City, which was some 14 or 15 blocks distant from No. 203^ North Broadway; that the defendant Cameron was the owtoer of an automobile, which was constantly parked in front of or near these premises on Broadway street in Oklahoma City every day during this period of time; that these defendants were watched by the officers of the city and county, and were seen to make frequent trips in this automobile from the said premises on Broadway to the residence of the said Pence, where packages of liquor were obtained and carried back to the premises on Broadway; that the premises of Pence on Wést Main street were used as a storehouse in connection with and as a part of the business conducted at 203% North Broadway; that large quantities of liquor were seen to be carried into Pence’s home during this period of time; that on the 19th of October, 1915, the sheriff of Oklahoma county, one of his deputies, and another officer employed by the county attorney, caught the defendants Pence and Cameron in the act of leaving Pence’s home to get into the automobile along about 7 o’clock in the evening; that a search was made of their persons, and the defendant Pence had concealed in and upon his clothes five pints of whisky. On another occasion the residence of Pence was searched, and a barrel of bottled beer was found. On another occasion an empty keg 'was found concealed upon his premises, which had a paper wrapped around it which was .wet with whisky, and around the bung hole of the keg the odor of Whisky was. very pronounced. The neighbors of Pence testified to the fact that during this period of time about twice a week an empty trunk would be carried away from his residence by a transfer wagon, and would be returned during the following night, and would be seen the next morning at the rear end of his place with the top open; that whisky cartons and empty whisky bottles in large numbers were seen in and upon Pence’s premises, where his house was located; that shipments of whisky and beer were frequently carried to Pence’s residence by express companies; that on some occasions, when the premises at No. 203% North Broadway were searched, whisky glasses were found with small amounts of whisky in them; that said defendants Cameron and Pence admitted the control of the premises at No. 203% North BroadWay during this period of time.

No substantive defense was interposed by any of these defendants to the proof in this case. They merely relied upon impeaching the credibility of certain neighbors of Pence, who testified to the fact of large quantities of intoxicating liquors being' carried to his house during the time charged that this offense was committed. It is the opinion of this court that the evidence adduced by the state was sufficient to authorize the trial court to submit to the jury the question of whether or not these defendants were maintaining said place as a liquor nuisance. The jury having found the defendants guilty, and the trial court having refused to set the verdict of the jury aside, and there being evidence sufficient to sustain the judgment, this 'court will not set it aside.

It is also contended that the court erred in allowing evidence to be introduced that the said place had the general -reputation of being a place where intoxicating liquors were kept for sale, and where persons congregated to purchase the same during said period of time. It has already been established by the decisions of this court that in this class of cases such testimony is competent. Wilkerson v. State, 9 Okla. Cr. 663, 132 Pac. 1120; Caffee, v. State, 11 Okla. Cr. 263, 145 Pac. 499; Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143.

Finally, it is contended that the court erred in allowing the state to prove the reception of intoxicating liquors at the Pence residence, which was not connected with the place alleged to be- maintained as a nuisance, and also in admitting testimony showing the search of the defendant Pence on the 19th day of October, 1915, and the discovery of whisky on his person. We think this evidence was competent. Before this proof was admitted the state had shown by competent testimony that the defendants Cameron and Pence made frequent trips from the place conducted at 2031/4 North Broadway to the residence of Pence on West Main street; that on these occasions they obtained intoxicating liquors at Pence’s residence and carried them back to 20314 North Broadway. The evidence showed in effect that the two places were conducted, one as a place of sale, and the other as a storehouse for the liquors to be sold at 2031/4 North Broadway. .The place at 2031,4 North Broadway was in the business district of the city, where it was unsafe to keep large quantities of liquor. The place on West Main street was in the outskirts of the city, where liquor could be received and kept with less danger of discovery. This evidence tended to show the manner in which the place at 20314 North Broadway was kept and conducted by these defendants, and tended also to connect the said defendants with its. maintenance.

We find no error in the record justifying a reversal of this judgment. The judgment is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ERNEST SMITH v. STATE.
    No. A-2861.
    Opinion Filed September 11, 1917.
    (167 Pac. 234.)
    APPEAL AND ERROR — Escape from Custody — Dismissal. Where a defendant lias been convicted and sentenced, and perfects an appeal, this court will not consider liis appeal, uuless defendant is ' where he can be made to respond to any judgment or order which may be rendered in the case. And where a defendant makes his escape from, the custody of the law and becomes a. fugitive from justice, the appeal will be dismissed.

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

    Ernest Smith was convicted of a violation of the prohibitory law, and appeals.
    Appeal disimissed, and cause remanded.

      D. S. Levy and Loyal J. Miller, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Ernest Smith, was convicted in the county court of Oklahoma county upon an information charging that he did have in his possession intoxicating liquors with the intent to sell the same. On the 29th day of June, 1916, he was sentenced to be confined in the county jail of Oklahoma county for a period of six months and to pay a fine of $500 and costs. From which judgment and sentence an appeal was perfected by filing in this court on October 26, 1916, a petition in error with case-made.

A motion to dismiss the appeal has been filed by the Attorney General, which, omitting the formal parts, is as f ollowis:

“Defendant in error would further show that subsequent to the conviction in cause No. 4204 in the county court of Oklahoma county, as hereinbefore stated, the plaintiff was again charged with the violation of the prohibitory laws of the” State of Oklahoma, and was on the 1st day of August,'1917, tried before a jury in said county court on said charge, and a verdict of guilty again rendered against plaintiff in error, Smith, the punishment being left to the court, upon which said verdict the county court did, on the 15th day of August, 1917, sentence the said Ernest Smith to six months in jail and to pay a fine of $500; that thereafter, and in pursuance of said last judgment and sentence the plaintiff in error was committed to jail, and was from said jail taken to the county road to there work out the said judgment and sentence pursuant to law; that on August 25, 1917, while in the custody of Mike Casey, the duly constituted superintendent of the road gang and deputy sheriff of Oklahoma county, the said plaintiff in error, Ernest Smith, did in the night-time break away from the said road camp and did leave the samé, a,nd has departed the jurisdiction of this court, and since said time has been á fugitive from justice, the manner of his escape being set forth in full and shown in the affidavit of the said Mike Casey hereto attached; that by reason of the said plaintiff in error, Ernest Smith, now being a fugitive from justice, the defendant in error asks, under the well-established rule of this court, that his appeal herein pending on said first-named conviction be dismissed by reason of' his being a fugitive from justice, and that a mandate issue from this court to the court clerk of Oklahoma county, Okla.”

Attached to said motion are the affidavits of H. D. Grant, undersheriff of Oklahoma county, and Mike Casey, superintendent of Road Gang No. 1, Oklahoma county, to the effect that the said Ernest Smith, without permission or consent, broke away from the guards and left said road gang on the 25th day of August, 1917, and that since said time he has been a fugitive from justice.

We are of the opinion that this case comes within the rule declared by this court in numerous decisions that this court will not consider an appeal, unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered in the case, and where the plaintiff in error makes' his escape from the •custody of the law and is at large as a fugitive from justice this court will, on motion, dismiss the appeal. Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515.

The motion to dismiss the appeal herein is therefore sustained, the appeal dismissed, and the cause remanded to the trial court,

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    W. W. WILLIS v. STATE.
    No. A-2329.
    Opinion Filed September 11, 1917.
    (167 Pac. 333.)
    1. WITNESSES — Impeachment—Collateral Fact- When a witness ’ is cross-examined on a matter collateral to the issue, his answer is conclusive and oannot be subsequently contradicted by way of impeachment by the party putting the question. The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea?
    .2. SAME — Appeal and Error. The state was permitted on cross-examination to ask Walter Clifford, the defendant’s witness, if he did not state at a certain place and time in the presence of one John Williams that, “Green is just as good as a dead unan; I know that fellow Willis, and he will kill him.” , The witness having denied making the statement, John Williams was introduced over the defendant’s objection and testified that the witness Walter Clifford did make said statement. Held, that the admission of such impeaching evidence over the defendant’s objection was prejudicially erroneous. The matter involved in the cross-examination of the witness and about which he was contradicted was not matter admissible as criminative evidence; it tended only to prove the opinion or conclusion of the impugned witness, and was a matter collateral and irrelevant to the issue being tried.

      Appeal from District Court, Pawnee County; L. M. Poe, Judge,

    W. W. Willis was convicted of manslaughter, and he appeals.
    Reversed and remanded for a new! trial.
    This is an appeal from an action instituted in the dis- ' trict court of Pawnee county, State of Oklahoma, wherein W. W. Willis was convicted of the crime of manslaughter •and sentenced to imprisonment in the state penitentiary for a period of 15 years. The evidence discloses that H. E. Green, the deceased, was a man between 45 and 50 years of age, who weighed about 200 pounds, and who ■came to Oklahoma about the time of the opening of the strip and purchased a homestead, the land whereupon he met his death on the 23d day of August, 1913. The deceased had had considerable trouble with his neighbors. He had previously been adjudged insane and sent to the •asylum at Ft. Supply, Okla., and there remained for several years. His general reputation in the vicinity wherein he resided as to being quarrelsome, dangerous, and violent was bad. The defendant in the case became acquainted with Green prior to his being sent to the asylum. At that time the defendant and his family, which consisted of his wife and some five or six small children by his second wife, together with a couple of boys by a former marriage, resided on Green’s place in a small log cabin and picked cotton. The parties got along very well, and no trouble was encountered. The defendant had lived in that vicinity since that time, some seven or eight years prior to the death of Green. The defendant was about 54 years of age, and his physical condition, according to the testimony of an attending physician, was “below par.” The defendant was a man without means, and he and his family farmed with different people in that vicinity, the landlord furnishing the horses and the implements and sharing the crop. During the fall or winter of 1912, the deceased Green came to the defendant, who was living close to the Green farm, and desired to rent him his place, to furnish the horses and to make provisions for the defendant to care for certain stock to be left on the place by Green. Green said that he expected to leave, and was looking either for a position at Ft. Supply at the asylum or at an insane asylum in Kansas.
    The defendant rented the place where Green lived. The house, together wifh the other improvements, consisting of bams and outbuildings surrounding the same, was located almost in the center of the 160 acres of land. Green boarded with the defendant for some time in the •month of December, 1912, and continued to live in the same house with defendant and his family. Green failed to obtain a position, but stayed on and lived with defendant until about the month of April, 1913, at which time defendant was called to Springfield, Mo., as a witness. Up to that time no trouble had ever occurred. While the defendant was away, he left at the place Green, and defendant’s wife, and five or six small children, the oldest being a boy 12 or 13 years of age. immediately after the defendant went to Missouri, trouble arose between Green and the defendant’s wife, a scufflle occurred, and considerable difficulty arose over the same. The woman phoned ■to the officers at Pawnee, and an officer went down to the place and brought Mrs. Willis, and Green to Pawnee.
    Mrs. Willis conversed with the county attorney, related her facts, and was advised as to Green’s mental condition, going over the situation that he had been once adjudged crazy, and the w'oman, although not satisfied with the advice received, returned to Mannford. On the afternoon, as they returned to Mannford, the closest station to the home where these parties resided, the defendant, having arrived at Mannford from Missouri something like an hour or two before his wife and Green arrived from Pawnee, and being advised of the circumstances of the trouble between his wife and Green, went to the depot to meet his wife. From there they went to the hardware store of Walter Clifford, the defendant having ordered a team to take his wife and baby to their home, and Green appeared in front of the hardware store and called the defendant out. Some words were spoken and a fist fight occurred, in which the woman also engaged. Both Green and the defendant were arrested, and the defendant pleaded guilty and paid his fine, but Green pleaded not guilty. Some parties interceded for Green the next day for the reason they claimed Green had been once adjudged insane. The defendant Willis was sent for the next day and the differences settled, and it was agreed that Green should go back to the house, and there stay until a certain portion of work was done or the crop which he was planting could be attended to, and then he was to leave the place.
    Prior to leaving the place some trouble again occurred between Green and the defendant’s wife; Green having undressed himself one day out in the yard before-the woman and the little girl. Green left the place some time in May. The defendant came to the county attorney upon two occasions to consult him regarding the facts in the case, stating that he did not desire to have trouble, but that all he had of this world’s goods w<as his interest in the crop. He desired only the protection of himself and family from the indignities and abuse of Green. Several letters were passed. He made two visits to the county attorney’s office. He was advised of the abnormal-condition of Green, and he also advised the county attorney that there had never been any trouble between Green and himself; that the trouble all arose between Green and the family. Nothing was done during this visit to the county attorney. Green was not then on the place, but the defendant anticipated that he would return at any time, and that perhaps trouble might ensue. Green returned home some time in July. After he returned, it was not long until trouble again ensued.
    The defendant, although having the place leased, and supposed to have the use and occupancy of the house and the use of the team, finding that he was unable to agree or get along with Green, and Green insisting upon staying on the place, the defendant decided that he would move, and he went to Mannford and made arrangements with Walter Clifford, the owner of the hardware store, to purchase a tent and to move onto the 40 acres owned by the said Walter Clifford adjoining the.Green land. On or about the 13th day of August, 1913, he moved his wife and six children from the house on Green’s place and began living in a tent on Clifford’s place. At -the time of moving from the place to the tent, Green again had trouble with the family, and on that occasion assaulted a little boy about 13 years of age, and had a difficulty with Mrs. Willis, wjhile the defendant was away from the house moving the belongings to the tent. A day or two afterwards the defendant again came to the county attorney and informed him ■ of the trouble, and informed him that he had just moved and taken his family from the house to a tent, and had moved into the tent for the purpose of avoiding trouble. After talking it over with the county, attorney, he stated that as far as he was concerned he had always got along with Greén, but the trouble always arose between Green and his family, and that he and Green had agreed on a division of the crop. No action was taken at that time, as it was thought further trouble might be avoided because of the separation of the parties.
    The defendant and Green did not see each other, or there is no evidence that they ever met, from the day the Willises left until the day Green met his death. • The evidence discloses that upon that Saturday afternoon the defendant, with his son Brooks Willis (a son of his first wife, and about 19 years of age) and Marion Clifford, an old gentleman who was staying with Willis, took a bucket, a half bushel, and a gunny sack or two and started to the Green home for the purpose of gathering some vegetables •that belonged to the defendant; a sufficient amount to last them over Sunday. As they went across to ■ the Green place, which was adjoining the place where the tent was located, the defendant, with his son Brooks and the old gentleman, Marion Clifford, started across the place through the woods and pasture to the garden. In going o the place very close to the house they met Mr. Green, viho was then plowing. They stopped and talked in a friendly way with Green. Green suggested that he had some cider at the house; that he would drive up and they could all have a drink. He drove his team to the north of the house, and they all walked across the plowed ground to a large tree located some 20 or 30 feet from the house, where there was a keg partly filled with cider. They all seated themselves around the keg, and Green poured out some apple cider, and they drank; after taking a drink they sat down and again talked about the crops and general conditions, and Green poured out some more cider, and some of them took a second drink. Willis got up and suggested they had better go and get their vegetables, as he had expected to go up and look after some corn on the Green place. Apparently no quarrel arose and nothing was said. The old man Clifford, who had lived in that vicinity for many years and knew the mental condition Df Green, a few moments before the tragedy occurred got up and started home, and when the defendant got up and started around the tree Green got up and jerked a knife out of his pocket and told him he. was going to cut his heart out. The boy, Brooks, ran around the tree. Green also ran around to the south side of the tree where the old man was standing. Brooks stepped in between Green and defendant and pushed Green back, and Green immediately knocked him out of the way, and started for the old man Willis, and was only a few feet from him. Willis told him to stop, but Green refused and kept rushing at him with a knife in his hands; the defendant pulled the gun and shot. Four shots were fired, and Green fell im-nediately south of the tree. The defendant and his son got up, and after talking a little, the defendant suggested to the boy that he go to a neighbor’s and phone for the doctor and the sheriff, and the defendant started home. This the boy did not do, but followed his father home.
    After the defendant arrived home he went to a neighbor’s himself and told him the conditions and trouble, told what he had done, and asked the neighbor to phone for the doctor and for the sheriff. This, was done. The neighbors took care of Green. The defendant met the deputy sheriff of Creek county, went with him to Mann-ford, and came on the next day to Pawnee, and was placed in jail.
    The foregoing account of the facts and circumstances is necessarily taken from the statement of the defendant ■and his witnesses. There was no eyewitness to this tragedy favorable to the state. After mistrial the case was again set for trial, and in February, 1914, the jury returned a verdict finding Willis guilty of manslaughter in the first degree, and fixing his punishment at 15 years in the state penitentiary.

      McNeill & McNeill, for plaintiff in error.

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

(after stating the facts'as above). It is contended that the court erred in permitting the state to impeach the witness Walter Clifford on a collateral and irrelevant matter.over the objection and exception of plaintiff in error and to his substantial prejudice. The record on this question shows the following:

“Q. Do you know John Williams? A. Yes, sir. Q. Do you remember the circumstances of saying to John Williams after Ed Russell walked away with these two men that Green is just as good as a dead man; I know that fellow Willis, and he will kill him? A. Did I say that to John Williams? Q. Did you say that to John Williams? A. John Williams? • Q. John Williams. A. No, for I don’t talk to John Williams at all.”

Over the objection and exception of the defendant, the witness John Williams was permitted to give the following testimony:

“Q. Mr. Williams, I will ask you if near the entrance of the Mannford Hardware Store on the occasion of the row between Mr. Green and Mr. Willis, if Mr. Walter Clifford made the statement in your presence that Green is just as good as a dead man? A. Yes, sir. Q. (Continuing) ‘I know that fellow Willis, and he will kill him.’ ”
“Mr. McNeill: We object to that question as incompetent, irrelevant, and immaterial, not made in the presence of this defendant and not binding upon the defendant, not proper rebuttal testimony.
“The Court: Overruled.
“Mr. McNeill: Exception.
“Q. Did he make that statement? A. Yes, sir.”

The court instructed the jury as follows:

“The court permitted the witness John F. Williams to testify in this case relative to a certain conversation had with Walter Clifford as follows: ‘Q. Mr. Williams, I will ask you if near the entrance of the Mannford Hardware Store on the occasion of the row between Mr. Green and Mr. Willis, if Mr. Walter Clifford made the statement in your presence that Green is just, as good as a dead man; “I know that fellow Willis, and he will kill him.” Did he make that statement? A. Yes, sir.’ The court therefore charges you that the purpose of this question and answer was for the exclusive purpose of impeachment, ■and it is not to be considered by you for any other purpose in arriving at a verdict in this case, nor must you suffer or permit the same to prejudice you in the slightest degree or consider the same in connection with ascertaining the guilt or innocence of the defendant. If, however, you believe that said statement wias made, then the same may be considered by you in testing the credibility of the evidence given by the said Walter Clifford, and must not be considered for any other purpose whatsoever in this case.”

In the case of Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, it was held:

“When a witness is cross-examined • on a matter collateral to the issue, his answer is conclusive and cannot be subsequently contradicted by way of impeachment by the party putting the question.”

It is thoroughly estabh'shed in all jurisdictions that if a witness is permitted to answer an impeaching question on a collateral matter the party asking the question is bound by the answer given. So in this instance there can be no question that the matter inquired into of the witness Clifford was purely collateral. The state, therefore, was bound by his answter, and it was error for the, trial court to permit him to be impeached upon that issue. Not only was it error to permit the witness Clifford to be impeached upon this issue, but the fact that the trial court instructed the jury that it was an issue upon which the witness could be impeached was also erroneous. In the case of Drake v. State, 29 Tex. App. 265, 15 S. W. 725, the Supreme Court of Texas, in passing .upon a question almost identical with this, said:

“James Drake, Jr.,, a witness who testified in behalf of the defendant, was asked upon cross-examination the following question: ‘On the evening or night of August 27, 1887, the day Guinn was shot by your father, at or near the store of Charles Rast, on Austin street in the city of Waco, Tex., and in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler, did you not say that you knew your father was going to kill Guinn before you left your father’s house that morning?’ The witness answered that he had not made any such statement. Thereafter the state proved by Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler that the witness James Drake, Jr., did make the statement set forth in the question, in their presence, at the place and time specified in said question. Defendant objected to the question, and objected to the test'mony of the witnesses Robinson, Bacon, Fleming, and Zeigler. His objections to the question, briefly stated, were that if the Witness Drake had made such statement it was a mere opinion, was not admissible against the defendant, was criminative evidence, and that the question was not permissible for the purpose of laying a predicate to impeach the witness Drake because it related to a matter collateral to the main issue, and called for a statement which, if made, was a mere opinion of the witness. The objection made to the impeaching testimony was that it related to a matter collateral to the main issue; a matter of opinion, and not of fact. It cannot be questioned that the statement which the Witnesses Robinson, Bacon, Fleming, and Zeigler testified was made by the witness Drake was inadmissible as criminative evidence against the defendant. It was not introduced or admitted as criminative evidence,- but for the sole purpose of impeaching the credibility of the witness Drake, Jr., and the jury was plainly and emphatically instructed in the chargé of the court as to the purpose for which said testimony was admitted, and that it could not be considered for any other purpose. Drake v. State, 25 Tex. App. 293, 7 S. W. 868. Was it competent to impeach the witness Drake, Jr., in the manner permitted? This same testimony was before this court on the former appeal, but it does not appear from the report of the case that it wias objected to on the trial. We presume that the objections now presented to it were not presented on the former appeal, as we find no reference in the opinion to any objection. Our former opinion, therefore, does not answer the question above propounded, and we are now called upon to consider and answer it. When a witness is cross-examined on a matter collateral to the. issue his answer cannot be subsequently contradicted by the party putting the question.’ Nor is it proper to allow a witness to be cross-examined as to any matter which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence. Whart. Crim. Ev. (9th Ed.), sec. 484; Rainey v. State, 20 Tex. App. 473; Hart v. State, 15 Tex. App. 202 [49 Am. Rep. 188]; Johnson v. State, 22 Tex. App. 206, 2 S. W. 609; Brite v. State, 10 Tex. App. 368; Stevens v. State, 7 Tex. App. 39. What is collateral and irrelevant matter within the rules above stated? In his work on Criminal Evidence (9th Ed., sec. 484) Mr. Wharton, quoting from the opinion in Hildeburn v. Curran, 65 Pa. 63, says: ‘The test of whether a fact inquired of in cross-examinations is collateral is this: Would the cross-examin'ng party be entitled to prove it as a part of this case tending to establish his plea? This test has been quoted and adopted by this court in Hart v. State, 15 Tex. App. 202 [49 Am. Rep. 188], and in Johnson v. State, 22 Tex. App. 206, 2 S. W. 609. Having this plain and approved test, it only remains for us to apply it correctly to the impeachment of the witness Drake, Jr., as permitted in this case, and thereby ascertain whether or not that impeachment was legal.
“What was the fact inquired about? A statement made by the witness Drake, Jr., that he knew that his father "(the defendant) was going to kill Guinn (the deceased) before he (the witness) left home that morning— the morning of the day of the homicide. Would the state have been entitled to prove as a part of its case by the witness Drake, Jr., or by other evidence, that said witness knéw on the morning of and prior to the homicide that, his father intended to kill the deceased? Could such knowledge of the witness be considered a fact, and a relevant, material fact? Suppose the witness Drake, Jr., while upon the stand had been asked by either party the question: ‘What was defendant’s intention towards the-deceased before you left home on the morning of and' prior to the homicide? Would such a question, if objected to upon the ground that it called for the opinion. or conclusion of the witness, and not for facts, have been allowed by the court? We do not think the question: Would have been legitimate and permissible. How could' the witness know as a fact of the intention of the defendant? That a certain intent existed is a conclusion deduced from facts; from the words and conduct of the individual to whom the intent is imputed. It is for the jury, and not * * * the witness, to deduce the conclusion, and that they may do this the witness must state-the facts from ’ which the conclusion as to the intent is sought to be deduced. Upon the facts the conclusion deduced by a jury as to intent might be the very opposite of that reached by the witness. Suppose counsel for the-state on cross-examination had asked the witness Drake, Jr., the question, ‘Did you know on the morning of and prior to "the homicide that the defendant was going to kill' the deceased?’ w/ould the question have been legitimate?’ We think it would not have been. It was calculated to elicit from the witness his conclusion merely, his conclusion as to the intention of the defendant. How could the witness know that defendant was going to kill the deceased? He could not know it. He could merely conclude that it was the defendant’s intention to do the act, and this conclusion he would deduce from facts within his knowledge. An affirmative answer to the question would not be evidence of a fact, but merely the opinion of the witness as to the intention of the defendant. Knowledge of what the defendant was going to do could be nothing more than the witness’ opinion or conclusion deduced from the words and acts of the defendant. Such knowledge is not a fact. If the question had been, ‘Did the defendant on the morning of and prior to the homi•cide tell you that he was going to kill the deceased?’ it would have been legitimate. It would have been an inquiry for a fact; a fact relevant and material to the main issue; a fact which the state would have been entitled to prove as a part of its case. If in laying the predicate to .impeach the witness Drake, Jr., he had been asked, ‘Did .you not state in the presence of Hugo Robinson, Street Bacon, Bob Fleming, and Todd Zeigler, on the evening or night of August 27, 1887, the day that Guinn was shot by your father, and at or near the store of Chas. Rast, in Waco, that your father told you on that morning before the homicide that he was going to kill Guinn?’ the question would have been proper, would have been as to a fact relevant and material to the main issue; a fact with . .respect to which the witness could be impeached by proving that he diid make such statement. And so of any other fact of like character. As we have before stated, we regard the matter about which the witness Drake, Jr., was contradicted as a matter of opinion merely, a conclusion of the witness, and not a fact. Opinions of witnesses, as a general rule, are not admissible in evi.dence. Witnesses must be confined to a statement of the facts within their knowledge, from which facts the jury are to deduce their own conclusion. Wilson Crim.- St., sec. 2502. There are well-established exceptions to this general rule. One of these execeptions is where the facts from wjhich the opinion proceeds as an effect are of a character that they cannot be so detailed and presented to the minds of a jury as to impart to them the knowledge-which the witness actually possesses. Whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury, or when language is not adequate to such realization, then the witness may describe it by its effect upon his mind, even though such effect be opinion. Powers v. State, 23 Tex. App. 42, 5 S. W. 153. But the opinion or conclusion of the witness Drake, Jr., as to the intention and purpose of the defendant to kill the deceased, cannot be brought within this or any other exception to the general rule.”

See, also, Wilson v. State, 37 Tex. Cr. R. 64, 38 S. W. 610; Morton v. State, 43 Tex. Cr. R. 533, 67 S. W. 115; State v. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258; Parker v. State, 46 Tex. Cr. R. 461, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893; Justice v. Commonwealth (Ky.) 46 S. W. 499.

Was the admission of this testimony injurious? Clearly so. The witness Walter Clifford was one of the main witnesses for the defendant in this case. He had known the defendant for a number of years, even prior to the time when he moved to that community. The fact that Clifford was intimately acquainted with the defendant, had known him for so long a time, would necessarily impress the jury with the fact, if it were true, that Clifford believed old man Willis to be a dangerous and desperate man, although he had testified in his favor, and as to his general good reputation for peace and quietude in that community. Also, in view of the fact that thé court instructed the jury that the witness Clifford might be impeached by testimony of this kind, the jury would naturally ■ conclude that having been impeached by such testimony he could not be believed in' any statement that he had made. The instruction, therefore, was very prejudicial.. The impeachment of the witness should not have been permitted. In view of the fact that this is a close case, in which the testimony for the defendant clearly makes out a case of self-defense, and in which a former jury was unable to agree, this court is impressed with the fact that this testimony must have had considerable influence upon the jury in reaching a verdict of guilty. We believe it is our plain duty, therefore, to reverse this judgment of conviction upon this ground alone.

Other errors are complained of, but they are either lacking in merit or are such as are not likely to arise upon a retrial of the case. We deem it unnecessary, therefore, in view of the conclusion that we have herein reached, to pass upon them.

The judgment is reversed, and the cause remanded for a new trial.

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


text:
    W. H. WAGGONER v. STATE.
    No. A-3128.
    Opinion Filed September 12, 1917.
    (167 Pac. 237.)
    1. APPEAL AND ERROR — Procedure. An appeal may ■ be taken by tbe defendant, as a matter of right, from a judgment of conviction, but tbe manner of taking and perfecting sucb appeal is a proper matter of legislative control.
    2. SAME — Costs. Tbe plaintiff in error having failed to pay to tbe clerk tbe statutory $15 advance fees, and having failed and refused to file tbe proper affidavit showing that be is without means, and by reason of bis poverty unable to pay tbe costs of tbe appeal, a motion to dismiss will be sustained.

      Appeal from District Court, Washita County; James B. Cullison, Assigned Judge.

      W. H. Waggoner was convicted of burglary, and he appeals.
    Appeal dismissed.
    ■ Smith, Jones & Smith, for plaintiff in error.

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

The plaintiff in error, W. H. Wag-goner, was convicted in ■ the district court of Washita, county upon an information charging burglary of the. Korn State Bank by the use of explosives, and his punishment assessed at imprisonment in the penitentiary for the term of 25 years. In pursuance of the verdict, on the 13th day of October, 1916, judgment was rendered. ■From this judgment and sentence an appeal was attempted to be taken by filing in this court on March 21, 1917, a petition in error with case-made.

Ihe Attorney General moved the dismissal of the appeal for the reason that the plaintiff in error had not. paid to the clerk the $15 advance fees, or had not, in lieu of such payment, filed a proper affidavit showing that he, plantiff in error, was a poor person who by reason of his poverty was unable to make the statutory deposit or pay the costs of the appeal.

Counsel for plaintiff in error in response to the motion in open court stated that the plaintiff in error had refused to sign an affidavit in proper form.

In Claraday v. State, 9 Okla. Cr. 552, 132 Pac. 691, it was held that:

‘‘A poor person, one who is without means with which to pay costs, and who is unable to procure the means from friends or relatives, by filing a proper affidavit and making a satisfactory showing is permitted to appeal without the payment of costs

—and further held that:

“The right to appeal is subject to reasonable statutory regulations. Such rilght does not contemplate an appeal for delay or at the expense of the people, except in the case of paupers.”

See, also, Wainwright v. State, 11 Okla. Cr. 547, 149 Pac. 914.

It follows that the motion on the part of the state to dismiss this appeal should be sustained; and it is so ordered.

ARMSTRONG and MATSON, JJ., concur.


text:
    ED. HUTCHINS v. STATE.
    No. A-2675.
    Opinion Filed September 13, 1917.
    (167 Pac. 338.)
    1. APPEAL AND ERROR — Costs of Transcript — Right of Accused When Poor Person. Iñ a criminal prosecution, where the defendant has been . convicted and desires to appeal, upon a proper showing made 'to the trial court that be is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an ox-der directing that this be done without expense to the defendant. ' ‘ •
    2. SAME — Reversal.- On appeal by transcript from a conviction for murder, it appearing from the record that the plaintiff in error was denied his constitutional and statutory right to perfect an appeal by case-made as a poor person, by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings, and the testimony taken upon the trial, the judgment is reversed and a new trial awarded.

      Appeal from District Court, Jackson County; Geo. C. Crump, Assigned Judge.

    Ed. Hutchins was convicted of murder, and he appeals. Reversed and remanded for new trial.

      W. T. McConnell, for plaintiff in error.

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

The plaintiff in error was tried, convicted, and sentenced to life imprisonment, upon an information charging him with the crime of murder in the killing of his wife, Mary Hutchins, by shooting her with pistol. The case comes before this court upon a petition n error with a certified transcript of the record. The jrrors assigned are as follows:

“First. The court erred in overruling the demurrer to the information.
“Second. The court erred in the admission of testimony against the defendant.
“Third. The court erred in its instructions to the jury.
“Fourth. The court erred in failing to instruct the jury as to all the law applicable to the facts proven.
“Fifth. The court erred, in failing to instruct the jury in the law as to the different degrees of homicide.
“Sixth. The court erred in. its statements in the presence of the jury.
“Seventh. The court erred in overruling the defendant’s motion for a new trial.
“Eighth. The court erred in overruling the defend-nt’s motion for a transcript of the testimony, statements, ibjections, rulings of the court (not of record), excep-ions, and record proper of the entire proceedings had m said cause in said court before, at and upon the trial thereof to be incorporated in a case-made and funrshed the defendant for the purpose of perfecting his appeal to this court by case-made, unless the said defendant who was found by the court to be a pauper, deposit with the court stenographer the sum of $40 for such transcript and case-made, thus denying to the plaintiff in error the right of appeal, as will more fully appear from Exhibit A attached hereto.
“Ninth. That the plaintiff in error is a poor colored person, and has not at any time since said trial been able to pay for said case-made or record proper, and that the record and transcript which is attached hereto were procured by his'attorney. That he is unable to pay or secure the costs of filing this appeal in this court, as will more fully appear from the affidavit of his poverty filed herewith and marked Exhibit B and made a part hereof.”

The information in this case is sufficient, and the demurrer thereto was properly overruled.

The only other question which can be determined upon the transcript is concerning the action of the court in refusing to order the court reporter to furnish the defendant with a transcript of the testimony in order to perfect his appeal. It appears from the transcript that when the court rendered judgment, the defendant filed his motion and affidavit in part as follows:

“That from said judgment the said defendant desires to appeal to the Criminal Court of Appeals, notice of which has been given as required by law; that in order to properly present said appeal it is necessary that he prepare a case-made to serve upon the plaintiff and for settlement and filing in said Court of Appeals with his petition in error; that due demand has been made upon the court stenographer, and that said stenographer refuses to make the same unless a deposit of $40 is made to pay for same. Affiant says that he is a poor person; that he has no property or money of any kind whatsoever; that his relatives are all poor and have no property or money with which to aid him; * * * and that, by reason of his poverty and the poverty of his relatives he is unable to pay for said case-made, or to pay said attorney for making the same. Wherefore defendant prays that the court make an order directing the court stenographer to make such case-made for the use of said defendant free of cost to the defendant.”

The order, as shown by the transcript, omitting title and indorsements, is as follows:

“Judgment on Motion.
“Now on this the 16th day of September, 1915, the same being a regular judicial day of the regular September, 1915, term of this court, there came on to be heard the motion of the defendant Ed Hutchins that he be furnished a case-made for the purpose of properly presenting his appeal herein to the honorable Criminal Court of Appeals of the State of Oklahoma, free of cost on account of his poverty, and after hearing said motion and the evidence thereon and the argument of counsel both for plaintiff and defendant the court finds that the allegations of poverty alleged in said motion are true and that the same are not controverted by the plaintiff, but the court further finds that there is no merit in defendant’s contemplated appeal to the Criminal Court of Appeals of the State of Oklahoma, it is therefore ordered, adjudged and decreed that the said motion for case-made be in all things overruled, to which ruling of the court the defendant excepts and exceptions are allowed.
“Geo. C. Crump, Judge.
“Attest: [Seal.] Maud Kimbell, County Clerk, by
Fred Zimmerman, Deputy.”

In the case of Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823, it was held that where a convicted defendant desires to appeal, upon the making of a proper showing to the tr'al court that he is unable to pay the stenographer for a transcript of the testimony, or the clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.

In delivering the opinion of. the court, Judge Fur-roan said:

“Appellant was tried and convicted of manslaughter in the first degree, and his punishment was assessed at 15 years’ imprisonment in the penitentiary. Appellant gave notice of appeal, and moved the court to direct that the case-made and record should be prepared without expense to him upon the ground that he was without friends and money and was unable to pay the stenographer for extending his notes and to pay the clerk of the court for making up the record. The fact that appellant was a pauper was not contested by the state. But the motion was denied by the court. In this we think there wfas error. * * * Stenographers- are paid by the state $100 per month for their services. They are also allowed to charge liberal fees for extending their notes where the parties desiring such extension are able to pay for the same. But, when a defendant is unable to pay for extending the notes of the stenographer, he is as' much entitled to have this done without cost to him as he is to have the services of the sheriff in summoning witnesses or any other court officer in the performance of his duty in such cases. It is therefore the right of a defendant if he is unable to pay for the same to have the stenographer’s notes extended without cost, and it is the duty of the trial court to make an order to this effect, and to see that it is obeyed. As this was not done in the case at bar, there is no case-made in the record, and appellant has been denied his constitutional right to have his case reviewed by this court upon the facts. Whether he is guilty or innocent he has this right, and he cannot lawfully be deprived of it. In the case of Tegler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976, this court held that, w|here a defendant without fault on his part or on the part of those who represented him has not been able to obtain a case-made upon which to prosecute an appeal, a new trial will be granted him. In the case at bar appellant has prosecuted an appeal upon a transcript of the record in which there are numerous assignments of error alleged, to have been committed by the trial court in its instructions to the jury. We cannot determine intelligently as to whether or not the trial court erred in its instructions to the jury unless the testimony in the case is also before us, because instructions are always viewed in the light, of the testimony to which they are applicable. It is true that appellant is only a friendless negro without money, and dependent upon the charity of his attorneys for his defense. But the law is no respecter of persons. It cannot look to the color of a man’s face, the size of his pocketbook, or the number of his friends. We w'ant the people of Oklahoma to understand, one and all, that the poorest and most unpopular person in the state, be he white or black, can depend upon it that justice is not for sale in Oklahoma, and that no one can be deprived of his right of appeal simply because he is unable to pay a stenographer to extend the notes of the testimony.”

The rule, announced by this court in the Jeffries Case should by this time be familiar to all who are concerned with the administration of 'the criminal- law. In the case of Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846, it is held that:

“Where a defendant is able to employ counsel to-represent him, and the trial court refused to enter an order requiring the testimony to be extended without expense to the defendant, such refusal will not constitute-ground for reversal, unless it affirmatively appears from the record that the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, and that thereby the-trial court had abused its discretion.”

In the case at bar the trial court, in denying the motion, “finds that the allegations of poverty alleged in said motion are true, and that the same are not controverted by the plaintiff; but the court further finds there is no-merit in defendant’s contemplated appeal.”

Under the Constitution and laws of this state ' an appeal may .be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know' that under our Constitution and laws there is no one so rich and powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its complete protection.

It appearing that the plaintiff in error was denied his constitutional and statutory right to perfect an' appeal by case-made as a poor person by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings and of the testimony taken upon the trial, it follows that the judgment of the district court of Jackson county must be reversed. It is so ordered, and the cause is remanded for a new trial. The warden of the penitentiary at McAlester will deliver the defendant to the sheriff of Jackson county to be held in custody by him until he is discharged from such custody according to law.

AKMSTRONG and MATSON, JJ., concur.


text:
    DURLING S. CRADDOCK v. STATE.
    No. A-2662.
    Opinion Filed September 15, 1917.
    (167 Pac. 331.)
    TRIAL — Verdict—Impeachment by Jurors. Jurors will not be permitted to impeach or contradict tbeir verdict by affidavits or otherwise after they have been discharged from the jury and have-mingled with the public.

      Appeal from District Court, Oklahoma County; John W. Hayson, Judge.

    Durling S. Craddock was convicted of manslaughter-in the first degree, and he appeals.
    Affirmed.

      Chas. H. Ruth, for plaintiff in error.

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

This is an appeal from the district court of Oklahoma county wherein the plaintiff in error was convicted of the crime of manslaughter in the first degree and his punishment fixed at the minimum of four years’ imprisonment in the state penitentiary. There is-but one assignment of error relied upon for a reversal of this judgment, viz.:

“Misconduct of the jury, in that the verdict was decided by lot and other means and is not a fair expression of the opinion on the part of the jury and each member thereof, in this, that before the verdict was arrived at and as a consideration thereof, and as a condition precedent for a verdict of guilty' with four years’ imprisonment, the jury unanimously signed a writing and caused same to be delivered to the court, which in substance provides for a recommendation to the Governor of the state to remit or commute the four years’ to one year’s imprisonment; and had it not been for the agreement and recommendation the jury would not have agreed upon a verdict of guilty.”

This alleged error was presented to the trial court in the motion for a new trial, supported by the affidavit, of the juror H. E. Robinson, which said affidavit is as-follows:

“H. E. Robinson, of lawful age, on oath and being-first duly sworn, deposes and says that he was a member of the jury which tried the case above- entitled and rendered a verdict therein on June 14, 1915; that at least three members of said jury were constantly holding out for a verdict of not guilty, and their consent to a four-year verdict and of guilty of manslaughter was obtained in the following way: That before said verdict was agreed to and signed, it was agreed by the jury.as a condition precedent to the said verdict that all 12 members of the jury would sign a written recommendation to the Governor of the State of Oklahoma to reduce the four-year sente-nce-' to one prison year; that this recommendation was signed by all the jury before the verdict was announced to the bailiff to be announced to the court; that the said three jurymen would not have, under any circumstances, consented to-any verdict of guilty had it not been for the agreement of all the jury to sign said recommendation, and had it not been that they believed in good faith that such. a recommendation was proper and would to a moral certainty be complied with; that the said written paper to-the Governor was filed by three members of the jury with the Hon. John W. Hayson soon after the jury was discharged, who was district judge who tried the case; that had it not been for this method of arriving at a verdict and the said recommendation, the said jurymen would have voted not guilty until a verdict of not guilty was had or a mistrial was declared.
“H. E. Robinson.
“Subscribed and sworn 'to before me this 20th day of July, 1915.”

This is not a question of first impression with this court. The question of whether jurors may impeach or contradict their verdict after they have been discharged and have mingled with the public was passed upon in the case of Petitti v. State, 2 Okla. Cr. 131, 100 Pac. 1122, wherein it w!as held:

“When the jury have returned into court a verdict finding the defendant not guilty, it is error, after the jury have been discharged and mingled with the public, for the court to recall the members of the jury and require or permit them to impeach the verdict returned into court by testifying that they really intended to find the defendant guilty.”

The question was next passed upon in the case of Spencer v. State, 5 Okla. Cr. page 7, 113 Pac. page 224, where the Petitti Case was followed. In the Spencer Case this court said:

“If, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, judgments based upon verdicts of juries would rest upon a very uncertain foundation. Litigants against whom verdicts had been rendered would be continually importuning jurors and attempting to obtain. from them affidavits upon which such verdicts could be assailed. This would result in perjury and bribery. There-would be no end of litigation in cases tried before juries. Therefore, for the security of litigants,' and to prevent fraud and perjury, as well as for the protection of the jurors themselves, courts will not allow jurors to impeach their own verdict unless they are permitted to do so by the express provisions of the statute. We have no - statute permitting this to be done.”

And again-in the case of Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301, where the question was again presented, the Spencer and Petitti Cases were followed. In the Vanderburg Case it was said:

“In support of a motion for a new trial the testimony of one of the jurors was taken, wherein he testified in substance that the verdict of the jury was not unanimous, and that he did not vote for a conviction. Two other jurors were permitted to testify that the question of taxes was discussed, and that the costs would be thrown on the state, if they did not stick the defendant. It will be sufficient to say on this question that jurors will not be allowed to impeach their verdict by their affidavits or testimony after they have been discharged. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224.”

Also in the case of Overton v. State, 7 Okla. Cr. 203, 114 Pac. 1132, 123 Pac. 175, this court again held that jurors would not be permitted to impeach their verdicts by affidavits or testimony to the effect that they were influenced by something in arriving at a verdict other than the law and the testimony.

And in the case of Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172, the sole question presented was whether or not a verdict could be impeached by the affidavits or testimony of jurors showing misconduct on their part in arriving at the verdict. It was again held that a verdict could not be so impeached. In the Keith Case all the decisions of this court, together with the decisions of the courts of numerous other states, were cited and quoted from, the court distinguishing between the statutes of those states which permit a verdict to be impeached in. this manner and the law; governing in Oklahoma. In the Keith Case this court said:

“As was well said by Chief Justice Mansfield, if a verdict can be .impeached by the affidavit or testimony of a juror, then in any criminal case tried in the state, no matter how conclusive the testimony and how regular the trial may have been in other respects, it will be in' the power of one juror to secure a reversal of a conviction, and at the same time do it in such a manner as.to conceal the purpose for which it was done, and thereby exempt himself from punishment. Such a juror could insist that the amount of punishment should be arrived at by lot, or he could make statements to the other jurors highly damaging to the defendant; then afterwards it would not be necessary for him. to file an affidavit as to how the verdict w)as reached in the case, for, if the right to impea’ch a verdict by affidavit of a juror exists, the right to have the entire jury summoned and placed on the stand and examined as to * what occurred in the jury room also exists ; and when a verdict was rendered, as above indicated, such juror might have been the most zealous for conviction, when, as a matter of fact, he was working solely in the interests of the defendant. ‘If this can be done, it places in the hands of a defendant the power to set aside any verdict, that might be rendered against him, provided only he can find a juror who will be willing to carry, out-the program. It may be stated that this is an -extreme illustration; but it must be remembered that the extreme case is the test of the rule. We might fill a volume by quoting from authorities supporting our views on this question; but, as it has been decided three times by this court, wfe do not deem it necessary to quote further from authorities.”

Numerous authorities are collated in the Keith Case, and we deem it- unnecessary to embody them, in this opinion.

See, also, Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.

It has been clearly established in this state that a juror will not be permitted to impeach his verdict, after he has been discharged and has mingled with the pqblic, either by affidavit or oral testimony.

We have read the testimony in this case, and conclude that the defendant is to be congratulated upon receiving the minimum punishment for manslaughter in the first degree. Under the state’s evidence he is clearly" guilty of murder, and the testimony of his own witnesses does not tend to reduce this offense to manslaughter. There is slight evidence of self-defense, but the jury undoubtedly were led to lighten the punishment because of an alleged assault by the deceased upon the wife of the defendant the day previous to the homicide. Defendant did not take the witness stand in his own behalf. What: was really the actuating cause of this killing, therefore,, has never been told by him. After an examination of the-entire record, however, we are convinced that he has been' dealt with most leniently.

The judgment of the district court of Oklahoma county is therefore affirmed.

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


author: PER CURIAM.

text:
    J. S. STEVENSON v. STATE.
    No. A-2690.
    Opinion Filed September 15, 1917.
    (167 Pac. 345.)
    INTOXICATING LIQUORS — Unlawful Sale — Evidence. In a prosecution for the unlawful sale of intoxicating liquor, the evidence considered, and held -sufficient to sustain the conviction.

      Appeal from County Court, Garvin County; W. R. Wallace, Judge.

    J. S.. Stevenson was convicted of a violation of the-prohibitory law and he appeals.
    Affirmed.

      H. M'. Carr, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Garvin county on an indictment returned in the district court of said county and duly transferred to said county court, which charged an unlawful sale of spirituous liquor to John Lee, and his punishment was assessed at 60 days’ confinement in the county jail and a fine of $100. From the judgment and sentence rendered in pursuance of the verdict, he appeals.

The only assignment of error worthy of notice urges insufficiency of the evidence to sustain the verdict and judgment. John Lee, the only witness on behalf of the state, testified that he went to the defendant’s house and told him that he wanted a drink of alcohol or whisky, and asked defendant to sell him a drink; that defendant sold him a drink of alcohol, for which he paid him two bits. As a witness in his own behalf the defendant testified that John Lee came to his house and told him he was nearly dead for a drink, and said, “Got anything to • drink?” and defendant said, “No, not got anything, but might go and get you something”; that he gave Lee a drink, and Lee offered him a quarter, but he did not take it. His cross-examination shows that he had been previously convicted of a violation of the prohibitory law.

The foregoing statement of the evidence is sufficient to show that the appeal in this case is wholly destitute of merit. The judgment appealed from is therefore affirmed. Mandáte forthwith.


text:
    BUNK FIELDS v. STATE.
    No. A-2723.
    Opinion Filed September 17, 1917.
    (167 Pac. 344.)
    EVIDENCE — Res Gestae. Circumstances and declarations contemporaneous with the main fact under consideration, or so nearly related to it as to illustrate its character, are admissible as parts of the res gestae.

      Appeal from, District Court, Delaware County; John H. Pitchford, Judge.

    Bunk Fields was convicted of felonious assault, and he appeals.
    Affirmed.

      James S. Davenport, W. C. Hall, G. W. Goad, and J. T. McIntosh, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the district court of Delaware county under an indictment the charging part of which is as follows:

“He, the said Bunk Fields, then and there being, did then and there willfully, unlawfully, and feloniously, with intent to do bodily harm and without justifiable or excusable cause, commit an assault upon the person of Una Fields, by then and there having and holding a certain sharp and dangerous weapon, to wit, a large knife, and by then and there with such sharp and dangerous weapon assaulting, striking, and stabb.'ng her, the said Una Fields, contrary to,” etc.

Upon his trial the jury found him guilty as charged, and fixed his punishment at imprisonment in the penitentiary for the term of two years.

From the judgment pronounced upon the verdict he .appealed by filing in this court on April 29, 1916, a petition in error with case-made.

The undisputed facts of the case are as follows:

On the 21st day of January, 1915, there was a dance .at the home of Jeff and Una Fields, which was attended by about a dozen of the young people of the neighborhood, among them the defendant, Bunk Fields, a brother of Jeff Fields. During the evening Bunk Fields became .somewhat intoxicated and a fight started. Jeff Fields .stopped the fight, and in doing so had a scuffle with the defendant. The difficulty occurred in the dooryard. Mrs. Una Fields appeared on the scene, and the defendant stabbed her in the breast with' a knife, and as she turned he stabbed her in the back. She screamed: “Oh! he is killing me.”

The defendant, as a witness in his own behalf, testified that- several of the boys, including himself, were drinking, and that a fight started between Willie Fields, his nephew, and Bill Williams; that at that time he was very drunk; that he drew a pistol, and his brother, Jeff, took it from him; that he had no trouble with his brother, Jeff, or his wife at that time, and that he did not assault .Mrs. Una Fields, or cut her with a knife; that he' did not know that she had been cut until twto days later.

The first error assigned is that the court erred in overruling the defendant’s demurrer to the indictment. We are clearly of the opinion that the indictment is sufficient, .and that the demurrer thereto was properly overruled.

It is claimed that:

The court erred “in admitting over the objection of defendant the testimony of the witness Toad Muskrat that said defendant flourished a. pistol and had a conversation with another person that night at the time the ■alleged crime was committed.”

The witness Muskrat testified that he saw the defendant strike at Mrs. Fields. His testimony as objected to is as follows:

“Q. Now the time you speak of Jeff Fields attempting to or taking’ Bunk away from this difficulty, did you see a pistol there at that time? A. I did; yes, sir. Q. What became of the pistol? Who had the pistol? A. Bunk Fields had it; he had the pistol at the time the ■scuffle began to take place. Q. What became of it? A. •Jeff got it. Q. How long after you saw this pistol taken away from Bunk wlas it that you saw Bunk Fields and. Una together? A. It was just a short time; it wa's immediately.”
“The defendant moves .the court to withdraw from the jury the evidence of. the witness Muskrat as to the defendant having a pistol, flourishing a pistol, and displaying a pistol there that night, for the reason that it is irrelevant, and does not tend to prove any issue in this’ case; that it proves, if anything, the commission of another crime. The motion is denied, and the defendant excepts.”

We are satisfied from the whole record that the evidence pbjected to was competent and admissible as-a part of the res gestae, that the objections thereto were properly overruled, and that the court did not err in denying the motion to withdraw the. same from the consideration of the jury.

The evidence was claimed to be insufficient, but it fairly established the defendant’s guilt and fully justified the verdict of the jury.

Finding no error in the record, the judgment of. the low;er court is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    JOHN T. JOHNS et al. v. LINN, District Judge.

    No. A-2698.
    Opinion Filed April 18, 1917.
    (164 Pac. 990.)
    Petition of Jolin T. Johns and others,for writ of mandamus against Oonn Linn, District Judge. Case dismissed by .consent.

      A. F. Moss, Ed Crossland, and Pat Malloy, for petitioners.

      8. P. Freling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This was a proceeding in mandamus on behalf of John T. Johns, B. H. McLaughlin, Ben Green, G. H. Overton, R. J. Allison, and D. W. Moore, the defendants named in certain indictments returned and presented in the district court of Tulsa county, to require the respondent, Conn Linn, judge of said district court, to certify his disqualification to preside as such judge at the trials of said cases, on the ground of the bias and prejudice of said judge against the petitioners. The respondent filed an answer to the petition, denying that he entertained any bias or prejudice against said petitioners. The ease was heard and submitted upon the pleadings and the evidence adduced. It now appears that the cases in question were , assigned to another judge, and by agreement of the parties this case 'is to be dismissed.

The ease is dismissed.


text:
    PAUL LEVY v. STATE.
    No. A-2384.
    Opinion Filed May 26, 1917.
    (165 Pac. 741.)

      Appeal from, County Court, Logan Coimtu; J. C. Strange, Judge.

    Paul Levy was convicted of gaming and appeals.
    Affirmed.

      fí. I.' Sadler, -for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Paul Levy was convicted in the county court of Logan county on a charge of conducting a game of chance played with dice, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days.

An examination of the record discloses no error sufficient to warrant a reversal of the judgment of the trial court. It is therefore affirmed.


author: PER CTJRIAM.

text:
    WALTER MORRIS v. STATE.
    No. A-2459.
    Opinion Filed May 26, 1917.
    (165 Pac. 742.)

      Appeal from County Court, Beaver County; John A. Spohn. Judge.

    Walter Morris was convicted of petty larceny, and appeals.
    Affirmed.

      R. II. Loofbourroio, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CTJRIAM.

Plaintiff in error, Walter Morris, was convicted at the March, 1915, term of the county court of Beaver county on a charge of petty larceny and his punishment fixed at a fine of $10.

Upon a careful examination of the record, we find no error sufficient to warrant a reversal of the judgment. It is therefore affirmed.


text:
    TOM TRAMMELL v. STATE.
    No. A-2481.
    Opinion Filed May 26, 1917.
    (165 Pac. 742.)

      Appeal from County Court, Kiowa County; J. S. Carpenter, Judge. '
    Tom Trammell was convicted of violating the prohibitory law, and anneals.
    Affirmed.
    O. J. Logan, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff iu error, Tom Trammell, was convicted at the April, 1915, term of the county court of Kiowa county, charged with having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days.

A careful examination of the briefs and record in this case discloses no error which would justify a reversal of the judgment. It is therefore affirmed.


text:
    JAMES YOWELL v. STATE.
    No. A-2354.
    Opinion Filed June 2, 1917.
    (165 Pac. 155.)

      Appeal from Superior Court, Olclahoma County; M. D. Oldfield, Judge.

    James Yowell was convicted of assault and battery, and appeals.
    Affirmed.

      C. H. Garnett, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, James Yowell, was tried in the superior court of Oklahoma county on a charge of assault with intent to kill, and convicted of assault and battery, and his punishment fixed at a fine of $100 and costs.

A careful examination of the record and briefs discloses the fact that the plaintiff in error had a fair and impartial trial, and escaped with exceedingly light punishment. No prejudicial error is found.

The judgment is affirmed. Mandate ordered forthwith.


author: PER OURIAM.

text:
    GEORGE AKINS v. STATE.
    No. A-2588.
    Opinion Filed June 9, 1917.
    (165 Pac. 154.)

      Appeal from County Court, Woodward County; Clyde S. Wyand, Judge.

    George Akins was convicted of petty larceny, and appeals.
    Affirmed.
    IF. A. Hriggs. for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER OURIAM.

The plaintiff in error, George Akins, and T. F. Akins and Everett Brenneman, were jointly informed against and tried upon an information Charging the larceny of 20 chickens, of the value of $10, the property of A. J. R. Smith. At the trial the court sustained a motion to advise the jury to acquit the defendants T. F. Akins and Everett Brenneman, and so instructed the jury. The jury by their verdict found the plaintiff in error guilty, and fixed his punishment at confinement in the county jail for a period of 10 days and a fine of $10. From the judgment rendered upon the verdict, an appeal by case-made was perfected.

From a careful consideration of the record we reach the conclusion that there was before the jury sufficient evidence to warrant the verdict rendered, and, finding no error, the judgment of th lower court is affirmed.


author: PEIt CURIAM.

text:
    W. F. AUSTIN et al. v. CITY OF ENID.
    No. A-2760.
    Opinion Filed June 2, 1917.
    (165 Pac. 155.)

      Appeal from County Court, Garfield County; K. L. Buriyert. Judge.

    Action by the City of Enid against W. F. Austin and another. Judgment for the former, and the latter bring error.
    Appeal dismissed.

      II. J. Sturgis, for plaintiffs in error.
   PEIt CURIAM.

The plaintiffs in error filed in this court, on June 13, 1916, a petition in error with case-made, whereby they appeal from the judgment of the county court of Garfield county, dismissing their appeals from the police court of the city of Enid to said county court. When the case was called for final submission, the plaintiffs in error, by their counsel, moved that said appeal be dismissed.

It is so ordered.


text:
    R. M. AUDAS v. STATE.
    No. A-2147.
    Opinion Filed July 21, 1917.
    (166 Pac. 449.)

      Appeal from County Court, Harmon County; B. C. Abernathy, Judge.

    R. M. Audas was convicted of torturing and killing an animal, and
    lie brings error.
    Dismissed.

      A. M. Btewart and Charles B- Moore, for plaintiff in error.

      It. McMillan, Asst. Atty. Gen., for tbe State.
   PER CURIAM.

Plaintiff in error, R. M. Audas, was convicted in tbe county court of Harmon county on a charge of torturing and killing an animal, and his punishment fixed at a fine of $50.

The Attorney General lias filed a motion to dismiss the appeal on the ground that the plaintiff in error has become a nonresident of the State' of Oklahoma and is not now amenable to the order of this court. The motion is conceded by counsel for plaintiff In error. In addition, the motion is supported by an affidavit of a resident of the county in which the conviction occurred.

We find, therefore, that the motion should be sustained, and the appeal dismissed. It is so ordered.


text:
    FRED CAMERON et al. v. STATE.
    No. A-2734.
    Opinion Filed July 28, 1917.
    Rehearing denied September 25, 1917.
    (167 Pac. 341.)

      Appeal from County Court, Oklahoma County; Win. II. hoick, Judge.

    Fred Cameron and Frank Pence were convicted of maintaining a liquor nuisance, and appeal.
    Affirmed.

      Ledrue Guthrie, for plaintiffs in error.

      8. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for State.
   PER CURIAM.

Fred Cameron and Frank Pence were jointly tried in the county court of Oklahoma county for maintaining a public nuisance, where intoxicating liquors were possessed and kept for sale, and where people congregated for the purpose of drinking the same, at No. 205 and No. 205% North Broadway, in Oklahoma City, Oklahoma county, Okla., from the 1st day of November, 1913, up until the 1st day of July, 1915. They were each sentenced to serve a term of six months in the county jail, and to pay a fine of $500.

This is a companion case to No. A-2733, against these same parties, this day decided by the court. Ante, p. 692, 167 Pac. 339. In this case' the parties were prosecuted for maintaining a public nuisance at a different location from that described in No. A-2733, and during a different period of time. The legal questions involved are all decided adversely to the contention of these plaintiff's in error in case No. A-2733. The evidence in this case to sustain the conviction is equally as strong, if not stronger, than that adduced by the state in No. ,,.-2733. .

After a careful examination of the record, the court finds no error sufflcient to reverse the judgment, and the same is affirmed.


author: MATSON, J..

text:
    C. E. SMITH v. STATE.
    No. A-2766.
    Opinion Filed July 28, 1917.
    (166 Pac. 753.)
    TRIAL — Instructions—Refusal—Presumption of Innctaence. Refusal of the trial court to give an instruction on the presumption of the innocence of the accused held to be prejudicial error in this case.

      Appeal from County Court, Garfield 'County; ■ ' E. L. Sioigert, Judge.

    C. E. Smith was convicted of unlawfully having in his possession certain cider with intent to sell the same, and he appeals.
    Reversed.
    Plaintiff in error was convicted in the county court of Garfield county for unlawfully having in his possession certain cider with intent to sell the same, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50, and appeals.
    Judgment reversed.

      M. C. Garber, for plaintiff in error.

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

The Assistant Attorney General has filed a brief in this case in which he confesses that the failure and refusal of the trial court to give an instruction to the effect that the defendant is presumed innocent until the contrary is proved was prejudicially erroneous to this defendant.

We agree with the position taken by the Assistant Attorney General. This was a closely contested case, and such an instruction should have been given, especially after the defendant called the attention of the court thereto, and made a request therefor. For this reason the judgment of the trial court is reversed.

However, the Assistant Attorney General requests that the court in this case decide the question of whether or not it is unlawful in this state to sell cider made from the unadulterated juice of apples, complying with the pure food laws of the United States, and of such a character as not to be subject to a special tax under the internal revenue laws of the United States, if alleged and proved to be intoxicating.

We deem it unnecessary to pass upon that question in this case. Upon an examination of the record we do not find evidence sufficient to sustain the contention that the cider sold by this defendant was intoxicating, nor does the proof establish that the cider sold was that commonly known as “hard cider.” Unless the prosecuting attorney shall discover additional evidence to prove beyond a reasonable doubt that the cider sold by this defendant was intoxicating liquor, we advise that the prosecution be dismissed.

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


author: ARMSTRONG, J.

text:
    DAVE BECK v. STATE.
    No. A-2567.
    Opinion Filed July 30, 1917.
    (166 Pac. 753.)
    1. LARCENY — Indictment—Sufficiency. An information cliarging larceny of live stock should contain an allegation to the effect that the property alleged to have been stolen was taken without the knowledge or consent of the owner, and when no such allegation is set forth, and a demurrer is timely filed, it should be sustained, and a proper information substituted.
    2. TRIAL — Instructions—Punishment. A trial court has no authority to authorize the jury by his instructions to fix any punishment other than that provided by the statute.

      Appeal from District Court, Texas County; W. C. Crow, Judge..

    Dave Beck was convicted of larceny of live stock, and* he appeals.
    Reversed and remanded.

      John S. Harris, James E. Breslin, J. 0. Lynch, and J. L. Gilson, for plaintiff in error."

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Dave Beck was convicted in the district court of Texas county at the May, 1915, term, on a charge of larceny of a domestic animal, and his punishment fixed at imprisonment in the state penitentiary for one year. The appeal is brought to this court by him for a reversal of the judgment.

The information charges the larceny of a steer. The charging part of the information is as follows:

“That said Dave Beck and said J. A. Beck did.' in Texas county and in the State of Oklahoma, on the 20th day of January, 1914, then and there unlawfully, willfully, and feloniously by fraud and stealth take, steal, and carry away of the personal property of one Robert Davies one certain red steer with white in its face branded T on left flank, a more accurate description of which animal is to this informant unknown, with the unlawful, willful, and felonious intent upon the part of the said Dave Beck and J. A. Beck to deprive the owner, the said Robert Davies, thereof, and with the intent to willfully, unlawfully, and feloniously convert the same to the use and benefit of the said Dave Beck and the said J. A. Beck.”

The proof offered on behalf of the state tended to establish the fact that prosecuting witness, Davies, and four or five other cattle owners in Southern Kansas, went to Dave Beck in Texas county, Okla., in 1914, and contracted with him to pasture several hundred head of cattle for them, in return for certain compensation agreed upon. At a later date, when the contract had expired, all these owners went to Beck’s place and received their cattle and drove them back to Kansas. There were four or five head belonging to Davies that were not accounted for. Beck claimed that they had died. At a later date one of the Davies cattle was found in the possession, of a cattleman in Northern Texas, to whom it had been sold by Beck.

In his defense Beck offered testimony tending to show that all of the cattle missed by witness Davies had died except the one sold by him to the Texas cattleman, and that this steer was found sometime after the Davies cattle had been moved back to Kansas; that he wrote Davies a letter telling him that the steer was there and advising that they had driven off one of his and offered to swap the one they had taken away for the one he had found in his neighborhood belonging to them; that he also sent word to Davies by another cattleman in the community who was absent from the trial; that he assumed the arrangement would be satisfactory, and sold the steer, and never went to Kansas to recover his steer taken away by Davies.

Davies denied receiving any letter or any information of this character from any source.

A demurrer was filed to the information and overruled by the court. The court instructed the jury that, if they found the defendant guilty beyond a reasonable doubt, they should fix his punishment at imprisonment in the state penitentiary for a term of not less than one year nor more than ten years. The instruction was objected to at the time on the ground that it did not correctly state the law.

Many assignments of error are urged in the brief. The propositions suggested in the foregoing, however, are all that will be discussed.

The information, it will be noted, charges that the defendant, Beck, together with another, unlawfully, willfully and feloniously, by fraud and stealth, did take, steal, and carry away the steer in question, with the unlawful, willful, and felonious intent upon the part of the takers to deprive the owner thereof, and with the intent willfully, unlawfully, and feloniously to convert the same to the use of the takers, but nowhere in the information is it alleged that the taking of the property was without the knowledge, or consent of the owner.

In Bryan v. State, 11 Okla. Cr. 180, 144 Pac. 392, this identical question was before the court, and the information held insufficient.

In Jackson v. State, 10 Okla. Cr. 525, 139 Pac. 324, the same question was raised, and we said:

“The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny of domestic animals.”

In Case v. State, 10 Okla. Cr. 502, 139 Pac. 322, the same doctrine was promulgated.

Under these authorities the court should.have sustained the demurrer to .the information and caused a proper one to be substituted.

For the purpose of disposing of this case, it is not necessary to determine the assignment based upon the instruction of the court authorizing the jury to fix the punishment at from one to ten years. It will be noted, however, that in this case the instruction was specifically objected to and the court’s attention called to the fact that it did not state the law. When this objection was made and the court’s attention directed to the specific point, it was error to give the instruction, and the court was wholly without warrant in doing so. The statute fixes the punishment for this offense at not less than two years nor more than ten years, and the trial court had no right to substitute the minimum of one year for the minimum of two years as fixed by the law of the land.

We are not unmindful of the doctrine announced in the case of Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, and the authorities there cited. It does not appear from the Coleman Case that the instruction was given over the objection and exception of the accused, nor does it so appear from the quotations in any of the cases relied upon to support that opinion. . A careful examination of all of these opinions has not been made by the writer. We know of no sound rule of law, however, that allows the trial court to substitute his instructions for the statute as promulgated by the lawmakers. A trial court will sometimes inadvertently make these mistakes, and when they are acquiesced in by counsel for the defendant, and no objection is made and no exception reserved, and when the punishment is of that character authorized by the statute, there may be some warrant for upholding a judgment of conviction, and it is probable the class of cases quoted in the Coleman Case, supra, was the class the various courts were considering. This would not be sound policy, however, when the action taken by the court was over the objection arid exception of a defendant.

The judgment is reversed, and the cause remanded.

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


text:
    WILL FLINCHUM v. STATE.
    No. A-2728.
    Opinion Filed July 30, 1917.
    (166 Pac. 752.)
    1. APPEAL AND ERROR — Briefs—Failure to File. When an appeal is taken to this court from a judgment of conviction in a trial court, counsel, under the rules, are required to brief within 60 days. If no brief is filed, permission is granted to argue the assignments of error orally before this court. In the event no brief is filed and no oral argument offered when the cause is assigned for that purpose, the record will be examined in felony cases for fundamental error, and if none appears, the judgment will be affirmed.
    2. SAME — Rehearing—Mandate. When no briefs are filed and no •appearances made for oral argument, the plaintiff in error is not entitled to the usual 15. days allowed by the rules of this court for filing petition for rehearing, but the mandate will be ordered forthwith in the discretion of the court, in order that' the judgment of the trial court may be properly enforced.

      Appeal from. District Court, Pushmataha County; C. E. Dudley, Judcte.

    Will Flinchum was convicted of larceny of a domestic animal, and he appeals.
    Affirmed.

      S. E. 'Welch, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Will Flinch-um, was convicted in the district court of Pushmataha county, at the November,-1915, term on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the. state penitentiary for'a term of three years. The appeal was lodged in this court on May 2, 1916. No briefs haye been filed on behalf of the plaintiff in error, and no appearance was made for oral -argument ■when the cause was assigned for argument before this court.

The information charges the plaintiff in error with the larceny of a three year old red steer, the property of Milt Allen. The proof on behalf of the state tends to establish that Flinchum lived near Clayton in Pushmataha county; that on or about the 17th .day of August, 1915, he butchered -a red steer and sold a portion of the beef in Clayton and the remainder in another small -town nearby; that he was not the owner of any cattle within the knowledge of his neighbors, and did not own a red steer answering the description of the one butchered. Milt Allen, who lived in the same section of Pushmataha county, owned a number of cattle, among them the steer in question. The steer was missed from the range, and a diligent search failed to locate him. Information was received that' Flinchum had butchered and sold the steer. A deputy sheriff and two or three citizens went to the place of Flinchum and asked to see the hide. Flinchum told them it was in Clayton, and agreed to go with them to see it, but later refused to do so. The officer went to Clayton and found a person who had attempted to buy the hide, but Flinchum had never delivered it to him. The' hide was never found. At the home of the plaintiff in error a trunk was found in which considerable hair, answering the description of the hair on the stolen steer, was stuck to the paper inside of the trunk. The odor indicated that the hide had been concealed in the trunk and lately removed. Witnesses who were present and assisted in butchering the steer gave a description of it answering the description of the missing steer of Allen’s. No proof was offered by. the plaintiff in error.

A careful examination of the record discloses no fundamental error prejudicial to the rights of the plaintiff in error. In fact, the record shows that he had a fair and impartial trial, and was duly convicted according to lav.

The judgment of the trial court is affirmed. Mandate ordered forthwith.

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