In view of the fact that one of the contentions of the defendant's counsel, both in the lower and in this court, is that the evidence is wholly insufficient to sustain the verdict and judgment, the foregoing statement of facts in the case has been made somewhat argumentative as well as narrative.
We will dispose of that proposition with the statement that we deem the evidence amply sufficient to support the conviction. The state presented a strong chain of circumstances against the defendant, which, together with the proper inferences arising therefrom, in the absence of any explanation by defendant, was sufficient to establish his guilt. The defense interposed only tended to strengthen the probative force of the state's evidence.
It is also contended that the trial court erred in overruling the defendant's motion to quash the information. The information upon which the preliminary examination was had in the county court of Caddo county charged the defendant, John A. Newcomb, together with one L.J. Taylor, *Page 183 with the identical crime for which he was tried and convicted in this case.
When the county judge filed his transcript of proceedings in the district court, he indorsed upon the information a finding that the offense named had been committed, and that "there is sufficient cause to believe the within-named J.M. Dilling guilty thereof, and I order that he be held to answer the same." No person by the name of J.M. Dilling was named in the preliminary information. The motion to quash the information was upon the ground that the committing magistrate had not indorsed thereon an order holding the defendant to await the action of the trial court. There was no contention that the defendant had not been accorded a preliminary examination into the offense.
Upon the filing of the motion to quash the information, leave was granted the committing magistrate to amend his indorsement on the preliminary complaint, and the indorsement as amended was as follows:
"It appearing to me that the offense named in the within complaint mentioned has been committed and there is sufficient cause to believe the within named John A. Newcomb and L.J. Taylor guilty thereof, I order that he be held to answer the same."
The motion to quash the information was then overruled, to which action exception was taken. It is contended that this action constituted reversible error because the second indorsement was inconsistent with the previous indorsement. The second indorsement was identical with the previous indorsement except as to the names of the parties held to answer the offense. The first indorsement was plainly a clerical mistake on the part of the committing magistrate. According to the first indorsement, he held "The within-named J.M. Dilling to answer said charge," when in truth and in fact *Page 184 there was no such person named in the preliminary complaint. The subsequent indorsement was merely made to correct this patent mistake and was permissible under the holdings of this court in the following cases: Williams v. State, 6 Okla. Cr. 373,118 P. 1006; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102.
The defendant, Newcomb, was not prejudiced by permitting the committing magistrate to amend his transcript to speak the truth. There is no contention that defendant was not accorded a preliminary examination into this offense as required by section 17, art. 2, of the Constitution.
Next it is contended that the court erred in overruling the demurrer to the information. The demurrer was on the ground that more than one offense was charged in one count of the information, and it was therefore duplicitous. In this connection it is contended that the information charged both grand larceny under sections 2101 and 2104, Compiled Statutes 1921, and larceny of an automobile under section 2120, Id. The latter statute is equivalent in its terms to section 2116, Compiled Statutes 1921, relative to the larceny of live stock.
The information in this case contains all the allegations necessary to support a conviction under the automobile larceny statute with the additional allegation of the value of the property taken. In construing the larceny of live stock statute in Crowell v. State, 6 Okla. Cr. 148, 117 P. 883, this court, where it was contended that the information was duplicitous in charging larceny of live stock because the allegation of value was contained therein, stated in the body of the opinion on page 155 of the official report (117 P. 886):
"The allegation of value in the information is not material, and may be rejected as mere surplusage, which does no harm." *Page 185
See, also, Stephens v. State, 12 Okla. Cr. 90, 93,152 P. 138; Dunn v. State, 14 Okla. Cr. 452, 172 P. 463.
It is next contended that the court erred in admitting incompetent, irrelevant, and immaterial evidence and also in excluding competent evidence. The incompetent evidence alleged to have been admitted relates to the testimony elicited upon cross-examination of the defendant concerning his previous conviction in another county of automobile larceny. In this connection it is contended that the cross-examination was improper and the evidence inadmissible for the reason that such conviction had not become final because an appeal was then pending therefrom. This contention had heretofore been decided adversely in the cases of Manning v. State, 7 Okla. Cr. 367,123 P. 1029, and Porter v. State, 20 Okla. Cr. 355, 202 P. 1041. In the latter case it is said:
"This court has held in the case of Manning v. State,7 Okla. Cr. 367, 123 P. 1029, that: `Where defendant takes the witness stand in his own behalf, he may be asked if he has ever been convicted of a felony or of any offense showing want of moral character. The purpose of this evidence is to affect his credibility as a witness by showing that he has been convicted of a felony or of any offense indicating a want of moral character. The fact that an appeal is pending from such conviction will not render such evidence inadmissible. It is the verdict of the jury upon such accusation that affects the credibility of the witness.'
"While there are decisions in other states announcing a contrary doctrine, to the effect that a conviction is not final until the appeal is decided, and that while such appeal is pending it cannot be shown that the defendant was convicted of such former offense, for the purpose of affecting the credibility of the defendant or for any other purpose, we think the law as announced in the Manning Case is supported by the weight of authority and the better reasoning." *Page 186
Further, it is contended that the trial court erred in instructing the jury as to defendant's guilt under the larceny of automobile statute and authorizing his conviction and punishment under said statute for the reason that the same is unconstitutional and void as being in conflict with section 57 of article 5 of the state Constitution. This contention is adversely disposed of in Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066.
Instruction No. 5 is also complained of. Said instruction is as follows:
"(5) The court instructs the jury that the defendant, John A. Newcomb, is charged in this case with stealing the automobile in question, and, before you can convict him, you must find beyond a reasonable doubt that the defendant was connected with the original taking of said automobile, and although you may be satisfied beyond a reasonable doubt that the defendant came into possession of said car with knowledge that it had been stolen, and although you may find that he disposed of it with such knowledge and with the fraudulent intent to defraud the owner, still he would not be guilty of the crime charged unless he took the automobile originally or aided and abetted, though not present, in taking the same from the possession of the owner thereof, and, if from all the evidence you entertain a reasonable doubt as to whether the defendant was so connected with the original taking of said automobile, you should acquit him."
It is contended that the following language: "And, if from all the evidence you entertain a reasonable doubt as to whether the defendant was so connected with the original taking of said automobile, you should acquit him" — cast an undue burden upon the defendant, in that it requires the defendant to establish the truth of an affirmative defense to a reasonable probability.
The instruction is not open to the criticism lodged against it. It is consistent with the theory as contained in the separate *Page 187 instruction that it is incumbent upon the state to prove the guilt of the defendant beyond a reasonable doubt. It impresses upon the jury the fact that the jury must find beyond a reasonable doubt that the defendant was connected with the original taking of said automobile. The purpose of the instruction was to inform the jury that, although they might believe the defendant guilty of the crime of unlawfully receiving stolen property, they could not convict him of that offense under the charge contained in the information. In this respect the instruction was fair to defendant, and in the opinion of this court was not misleading or prejudicially erroneous.
It is also contended that the trial court erred in failing to instruct on the law relative to circumstantial evidence. No request was made for an instruction on this subject. In view of the defense interposed and in the absence of such request, it is considered that the failure to instruct on this subject was not reversible error in this case.
It is also contended that the county attorney in his opening argument made prejudicial remarks not supported by the evidence. We find no recital in the case-made certified to by the trial judge that the county attorney made the remarks complained of. The motion for a new trial contains an affidavit to the effect that the county attorney made such remarks, and to which the defendant objected and excepted, setting out the remarks, but outside the motion for a new trial there is no recital in the case-made specifically setting forth the remarks complained of or the connection in which the argument was made.
In Irvine v. State, 10 Okla. Cr. 4, 133 P. 259, it is held:
"Objections to the argument of the county attorney placed in the case-made by counsel for a defendant will not be considered unless they are included in the recitals made by the *Page 188 trial judge, and unless they also set out the language used by the county attorney and show that the same was excepted to at the time."
Where the record contains no recital properly certified to by the trial judge setting out specifically the language used by the county attorney and presenting enough of the argument to enable this court to pass intelligently upon the question to be presented, there is no question raised which may properly be considered on appeal. Questions of this character may not be raised for the first time in the motion for a new trial. Webber v. State, 18 Okla. Cr. 323, 193 P. 48; Gaines v. State,18 Okla. Cr. 525, 196 P. 719.
Further contention is made that this judgment should be reversed because of misconduct of the bailiff in communicating with the jury after retirement to consider its verdict. This assignment is not supported by the record before us.
Attempt was also made to impeach the verdict by the affidavit and testimony of jurors. This proceeding is not allowable in this jurisdiction. Keith v. State, 7 Okla. Cr. 156, 123 P. 172; Overton v. State, 7 Okla. Cr. 203, 114 P. 1132, 123 P. 175; Oklahoma, K. M. Ry. Co. v. McGhee, 84 Okla. 116, 202 P. 277.
Upon a careful consideration of the entire record, the conclusion is reached that defendant was accorded a fair trial.
The judgment is affirmed.
BESSEY and DOYLE, JJ., concur. *Page 189