Evinger v State

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Evinger v State
1935 OK CR 53
45 P.2d 552
57 Okl.Cr. 63
Decided: 05/23/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Homicide -- Conviction for Murder Sustained. In a prosecution for murder, evidence considered, and held sufficient to support conviction, without the death penalty, and that no prejudicial error was committed in the trial.

2. Indictment and Information -- Preliminary Examination -- Jurisdictional Basis for Prosecution by Information. Under the constitutional provision, section 17, Bill of Rights, which declares "no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination," the precedent fact that a preliminary examination has been had, or waived, constitutes the jurisdictional basis for a prosecution for a felony by information.

3. Same -- Method of Attack on Information-Burden of Proof. The proper practice to attack an information for a felony, on the ground that the defendant did not have, and had not waived, a preliminary examination, is by motion to set aside or by plea in abatement, and such motion or plea must be made before pleading to its merits; and if issue be joined on such motion or plea, the burden of proof is upon the defendant.

4. Homicide -- Murder -- Statutory Provisions. Where an information charges murder under the first subdivision of section 2216, St. 1931, perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said section.

5. Same -- Allegations of Information Sustained by Proof Murder Was Committed in Attempt to Perpetrate Robbery. Evidence showing the murder was committed in an attempt to perpetrate a robbery sustained the allegations of the information.

6. Same -- Information Against Two Defendants Held Sufficient Without Stating Which Party Fired Fatal Shot. An information charging that P.E. slid R.C. did "feloniously without authority of law, and with a premeditated design to kill and murder" the person named, by shooting him with a shotgun, is sufficient without stating which one of said defendants fired the fatal shot.

7. Trial -- Failure to Indorse on Information Name of State's Witness in Capital Case Held Immaterial Where Name Included in

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List Served on Defendant. The failure to indorse on the information prior to the commencement of the trial the name of a witness to be used in chief against the defendant in a capital case is immaterial, provided the name of such witness, with his post office address, appeared in the list of witnesses to be called in chief by the state, served on the defendant in compliance with section 20, art. 2, of the Constitution.

8. Evidence -- Proof of Venue -- Circumstantial Evidence. The proper practice is for the state to prove venue by direct and positive evidence, yet the essential test is whether or not the venue has in some way been proven. Venue may be established by circumstantial evidence.

9. Appeal and Error -- Exceptions -- Record -- Improper Argument of County Attorney. Exceptions must be saved to alleged improper remarks of the prosecuting attorney in his argument to the jury, and such remarks must be preserved by being incorporated in the case-made, or by bill of exceptions duly allowed, to render them available on appeal; and, when not so preserved in the record, such remarks cannot be shown by affidavit or mere recitals, in a motion for new trial.

10. Trial -- Failure to Instruct on Accomplice Testimony not Error Where no State Witness Shown to Be Accomplice. Where the facts are not disputed, and there is no evidence to show that any witness for the state is an accomplice, there is no error in refusing to give an instruction upon the necessity of corroborating an accomplice.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Paul Evinger was convicted of murder, and he appeals. Affirmed.

By information the defendant, Paul Evinger, and one Red Carson were jointly charged in the district court of Osage county with the murder of Max Kriewitz, on May 6, 1933. The record shows that Red Carson, codefendant, escaped from the county jail at Pawhuska, and had died prior to the trial of this defendant. Upon his trial the jury found him guilty of murder, fixing his punishment at imprisonment for life.

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From the judgment rendered in accordance with the verdict, he appeals.

The evidence discloses substantially the following facts:

That about 9 o'clock p.m. on the 6th day of May, 1933, Max Kriewitz was assassinated at his place of business located same distance out of Fairfax, where the road running west from Fairfax turns north towards Burbank and to Ponca City. The deceased had a store and operated a filling station at this place.

Red Carson; codefendant, was an ex-convict and had been released from the penitentiary at McAlester but a short time prior to this murder.

Fay Bunny, a witness for the state, was doing time in the reformatory at Granite for burglary committed at Pauls Valley. He was only 19 years old at the time of the trial.

Eddie Holt, another witness for the state, was serving a term in the penitentiary at McAlester for burglary, and had formerly been convicted of car theft. Eddie Holt and Red Carson came from Oklahoma City to Ponca City in the forenoon of May 6th, and Fay Bunny came from Pawhuska to Ponca City some time in the afternoon of May 6th. After Bunny arrived in Ponca City he saw the defendant Evinger, Red Carson, and Eddie Holt standing together in the northwest part of Ponca City. Bunny, Carson, and Holt went to Gordon Dunn's house and there left Eddie Holt, then Bunny and Carson went to the house of a man name Sturtz, and from there they returned to the Dunn house in Bunny's car, which was a Ford coupe.

Fay Bunny testified that it was then somewhere around 5:30 p.m.; that he had met Evinger a couple of

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times prior to this time; that they went from the Dunn house to Evinger's house and arrived there about 6 o'clock p.m.; that he did not go in the house; that Evinger came out and talked to him and Carson, and then got in the car with them and he drove his car to the Dunn place, and from there they went to a filling station on the east side of Ponca City to get gasoline. They then went east out of Ponca City across the bridge and stopped, then Carson took witness' car and went back for Eddie Holt and returned with him to where they were drinking beer; that they stayed at this place about an hour, then went back in witness' car to Mr. Dunn's house, where they remained about five minutes. Some one went into the house, and then, some one came out and said to witness, who was sitting in his car, "Come in this other car, Mr. Dunn's car, there is more room in it, and we will ride around awhile"; that they all got in the Dunn car and Evinger drove the car, with Carson on the front seat with him, and witness and Holt in the back seat; that at this time it was commencing to be dusk; then Evinger drove to a filling station and had the gas tank filled; the car they were then riding in was a 1932 model Chevrolet two-door coach, of a greenish color; that after getting the gasoline they went east on the main Ponca City-Pawhuska highway, about eight or nine miles, then turned south, and after going about three miles stopped, and remained there 30 minutes, drinking beer; then they started south. They had been drinking home-brew in the car, and witness became intoxicated and laid down with Holt, in the back seat of the car, and they both went to sleep; that the next thing he knew he heard a shot fired, and he raised up and saw Carson on the right side getting in the car, with a shotgun, and saw Evinger getting in on his side of the car, with a pistol in his hand; that within two or three minutes

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Evinger started the car; that as they were leaving he heard a conversation between Carson and Evinger. Carson said, "It was too bad, the first man I had to high-jack after getting out of the penitentiary, I had to kill," and Evinger said it was too bad they had to kill the old man; that when they reached the main highway running east from Ponca City to Pawhuska, they turned east and passed through Burbank, and then turned south and stopped at a place north of Fairfax, and Evinger and Carson went to the house. In about 30 minutes they returned to the car, bringing the gun with them; then Evinger took the gun and went back towards the barn. He was gone three or four minutes, and when he returned he did not have anything with him. They then went on south through Fairfax, towards Pawnee, and stopped at a house off from the road north of Pawnee.

This witness further testified that before they arrived at Pawnee they stopped at a house and there got some more beer; that they stayed there a long time and after leaving there stopped at a big rock house, and Evinger got out and went to the house, was gone about five or ten minutes, and came back to the car and they left; that they drove around a little in Pawnee and stopped, and Evinger left the car and went to the house just across the street and then returned, and it was then getting daylight; that from Pawnee they drove towards Perry, and then went towards Ponca City, and kept on dirt roads the most of the way back to Ponca City; that they stopped and obtained gas at a filling station known as Blackwell's filling station; then went on to Ponca City. Evinger got out at Gordon Dunn's place and he, Holt, and Carson got into witness' car and went to the Sturtz place. There Red Carson left the car and witness and Holt went on to Tonkawa, where

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they had breakfast; that they arrived in Ponca City somewhere about 8 o'clock.

Eddie Holt testified that he was serving time in the penitentiary at McAlester, and had been brought to Pawhuska to testify as a witness; that he knew Red Carson a short time before the murder of Kriewitz, and had known Paul Evinger but a day or two prior to that time; that about 7:30 p.m. of May 6th, before dark, he went to a house in a Ford coupe, with Red Carson, and there met Evinger and Bunny; that he later learned that it was Gordon Dunn's house, but at that time he did not know Gordon Dunn; that he got out of the Ford car at the direction of Red Carson, and they all got into a two-door Chevrolet sedan which belonged to Dunn; that Evinger and Carson were in the front seat and Bunny was in the right rear seat and he was in the left rear seat. Evinger drove the car out to a filling station and got some gas and oil; that there was home-brew in the car; that after getting gasoline they drove on, and drank some more beer, and a mile or two from the filling station they turned to the right on a dirt road; that he was not familiar with the country around Ponca City or thereabouts; that he was pretty well intoxicated even before that time, as he had been drinking that afternoon before leaving Ponca City; that after driving four or five miles on a dirt road, they again stopped and drank some more beer; that he was then pretty drunk and went to sleep, and the next thing he remembered was when a shot was fired. He further testified that he then saw Red Carson getting in on the right side of the car with a shotgun in his hand, and saw Paul Evinger on the left hand side of the car, getting in the car; that he believed Evinger had a pistol in his hand, and he got into the car under the wheel; that Red Carson looked at him and said, "The first man I had

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to high-jack after getting out of the penitentiary, I had to kill"; that a little later Red Carson looked back, with a shotgun in his hands, and said, "Now, both of you didn't see nothing"; that he did not know how far they did travel until the car stopped at a house over near Fairfax; that Evinger and Carson left the car and went to the house; that this house was off of the main highway, and they stopped there 20 or 30 minutes. When they came back they drove on through Fairfax and stopped at a house near Pawnee, where they purchased some beer and drank it, and Evinger and Carson went in the house; that in the house was a man and an Indian woman; that witness and Bunny returned to the car and went to sleep. After detailing their trip back to Ponca City, he said they arrived there some time around 8 o'clock in the morning. He further testified that when they stopped at a filling station when they were about out of gas, defendant Evinger pulled out a pistol and held it in his hand and offered to soak it for some gasoline.

Mrs. Max Kriewitz, widow of the deceased, testified that she and her husband lived part of the time at the filling station and a part of the time she stayed in Fairfax, and spent the week-ends at the station; that on May 6th, which was Saturday, she was at the station and remained until after the body of her husband was taken away. She further testified that about a quarter to 9 they closed the filling station, and she and her husband were in the house, and were waiting thinking that probably there might be some more trade, when a car without lights drove up and stopped on the southeast corner on the back side; that the car came from the east and was headed west; that the occupants of the car made no alarm whatever, and Mr. Kriewitz, after waiting a few minutes, went into the bedroom

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and got his gun, then went to the front door and unlocked it and walked out, closing the door behind him, and she heard him say: "Was there something for you," or "What can I do for you," but there was no answer. Following this she heard some one say with an oath, "I will kill you," and right then they shot him; that she heard but one shot and heard Mr. Kriewitz scream about four times, and then fall; that she heard footsteps which sounded like they were in a hurry, and in just a few minutes the car left; that she did not see any of the occupants of the car and did not see the car leaving.

Charley Cass testified that he has lived in Fairfax 13 years, and is a deputy sheriff; that he has known Max Kriewitz practically all of "my life"; that he operated a filling station and grocery store at a place 15 or 16 miles north and west of Fairfax, on the Ponca City-Fairfax road; that he left Fairfax and arrived at the filling station after 9 o'clock that night, and found the body of Mr. Kriewitz lying near the southeast corner of the filling station about four feet from the building; that there were a number of people there at that time; that he examined the body and found a shotgun wound under the ribs in the right side of the stomach, the wound being an inch or an inch and a half in diameter; that it was a bright moonlight night. He further testified that the store building faced east, 16 feet front, about 30 feet deep, with another room on the back used for a residence; that the filling station was on a Y, entirely surrounded by highways, one road east and west and the Fairfax-Ponca City road curving to the right just east of the station, and directly in the rear of the store building an intersection where the road goes straight north and intersects the Fairfax-Ponca City highway, directly north of the filling station.

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On the part of the defense, Bruce Potter testified with reference to the taking of the deposition and the illness of the witness Ed Wade, after which the deposition of the witness Ed Wade was read in evidence, which testimony was, in substance: That the witness had known Paul Evinger for some time and had met him at Mrs. Maggie Grammar's place between 5 o'clock and 6 o'clock on the Saturday of the killing. He was driving a Ford coupe; that with Louis Grammar and another boy they went three or four miles east on the Pawnee road to get some beer, and about 6:30 or 7 o'clock in the afternoon, they took Louis Grammar home, then he went to Pawnee in Evinger's car, arriving there about 10 or 11 o'clock that night, and came back to Grammar's about 5 o'clock on Sunday afternoon.

G.W. Reed testified that he lived at Ponca City, and to the best of his knowledge and belief he saw Paul Evinger and Charley Bowen on the afternoon of May 6, 1933, at the river bridge; that Bowen was trying to sell an automobile to his brother; that Evinger and Bowen left to show a Chevrolet car to Evinger's wife.

Charley Bowen testified that he was an automobile salesman at Ponca City, and that he was at Guy Reed's place Saturday afternoon about 4 o'clock on or about the 6th day of May, to see Reed about selling him an automobile, and saw Evinger there; that he took Evinger in a Chevrolet car to show it to Evinger's wife, about 5 o'clock; that Evinger had been drinking.

Louis Grammar testified that he lived twelve miles west and three north of Burbank; that he knew Evinger and the witness Wade; that he and a young man named Hadlock was staying at the place about the 6th of May;

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that they heard about the killing of Kriewitz on Sunday morning about 10 o'clock, at the Haddon store; that he saw Paul Evinger and Ed Wade at Riley Hargraves'. place, and they were drinking beer; that Evinger had a Ford car and took witness home from Hargraves about half past 7 o'clock, then left to go to Pawnee, coming back in the same Ford car Sunday afternoon about 4 o'clock. On cross-examination he admitted that he told Deputy Sheriff Fred Whittaker that he did not know a damn thing about this case.

Mrs. Stella Dunn testified that she was acquainted with Paul Evinger, but did not remember seeing him on the 6th day of May, 1933.

Mrs. Caroline Evinger, wife of the defendant, testified that Charley Bowen, an automobile salesman, came to her house with her husband about 4 o'clock in the afternoon to sell her an automobile, on Saturday; that it was the day before she remembered reading about the killing of Kriewitz.

Mrs. Georgetta McAlester testified that she was married to Joe Sturtz; that she knew Fay Bunny, Red Carson, and Eddie. Halt, and saw them together on the 6th day of May, 1933, about 7 o'clock p.m., at her house in a Ford coupe, and saw a shotgun in the car, and they were drinking; that she knows Paul Evinger by sight, but did not see him that day; that the same three men returned to her home about 6 o'clock or 7 o'clock the following Monday morning.

The defendant, Paul Evinger, in his own behalf, testified that he was 32 years of age; that he went to the penitentiary when he was 23 years old for bank robbery, and

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served five years; that he was arrested in Kansas, and waived extradition; that he did not know Fay Bunny prior to May 6, 1933; that he did know Red Carson; that on the 6th day of May, in the afternoon, he left home in a Ford coupe; that he saw Red Carson and these two boys, Fay Bunny and Eddie Holt, at Gordon Dunn's house, where they were drinking; that after staying there about 30 minutes he went down to the river bridge, and there he saw Charley Bowen and Pat Reed, and had a conversation with Charley Bowen with reference to the sale of a Chevrolet coupe to his wife, and Bowen took the car to show to his wife; that his wife was mad because he was drinking; that the time was 4 or 5 o'clock; that Bowen took him back to where he left his car, and he drove over to Grammar's place, where he met Ed Wade; that they drank some beer and then, with Ed Wade and Louis Grammar, went to Hargraves' place; that they took Louis Grammar back home, and then he, with Ed Wade, went to Pawnee, going through the Haddon pasture; that they arrived at Fairfax after dark, would say 8 or 8:30, and stopped at Kelsey Morrison's house, but did not go in, and asked Mrs. Morrison if they had any whisky to sell, and she said no, but said there was another boy here, and she called this boy to the door; that later he learned this boy's name was Jeff Reynolds. He was then asked:

"Q. Is he in the courtroom now? A. No, I don't see him. That is the only time I had ever saw Jeff Reynolds until I saw him over here about two or three weeks ago in this case, and again today when the court recessed. I told him then that I didn't think we would use him as a witness."

He was then asked: "Was that the same man you saw at Morrison's at that time?" and answered: "Yes, I

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saw Mrs. Morrison there that night; she and Jeff Reynolds."

Then they went to Ote Brown's and stayed there that night. The next morning they went to Pawnee where he got a shave, and then with Wade went back to Grammar's ranch, and there Louis Grammar told them of the Kriewitz killing; that he did not make any trip with Red Carson, Fay Bunny, or Ed Holt, and was not with them that night; that he had nothing to do with the killing of Kriewitz; that his wife is a Pawnee and has an eight-ninths interest in an Osage estate. On cross-examination he stated that he had frequently visited Grammar's ranch; that he knew Henry Grammar well in his lifetime, and denied again any knowledge of the Kriewitz killing; that he met Red Carson the first time in the penitentiary at McAlester.

In rebuttal, the state called Ivan Webb, who testified that he was a police officer in Ponca City, qualified as a character witness, and stated that the general reputation of Ed Wade and Louis Grammar in the community where they resided, for truth and veracity, was bad.

Bryan Gates and Sam Tulk also qualified as character witnesses, and each testified that the general reputatation of Ed Wade for truth and veracity was bad.

R.B. Connor and Jim Sites, jailor, testified that Jeff Reynolds was in jail at Pawnee, on the night of May 6, 1933.

Marshall Blackwell, testified that he was the owner of a grocery store and filling station eight miles south of Ponca City on the 7th day of May, 1933; that he knew Paul Evinger but did not know Red Carson, Fay Bunny, or Eddie Holt; that he could not remember the date, but

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did remember that Paul Evinger bought some gas one morning, and had three or four men in the car with him.

Bruce Potter, John W. Tillman, and Fred A. Tillman, for appellant.

J. Berry King, Atty. Gen., and J.H. Lawson, Asst. Atty. Gen., for the State.

DOYLE, J. (after stating the facts as above). This appeal is from a conviction of murder and sentence of imprisonment for life at hard labor. We shall first consider the contention, "that the verdict of the jury is contrary to both the law and the evidence."

To summarize the testimony, it shows without dispute that Max Kriewitz was assassinated at his place of business, located on the highway about sixteen miles northwest of Fairfax, in Osage county, where the road turns north toward Burbank and Ponca City; that on May 6, 1933, about 9 o'clock p.m., a car without lights, headed west, stopped at the southeast corner of the filling station and country store operated by the deceased; the filling station had been closed for the night, and the deceased, with his wife, were sitting in the store. The occupants of the car made no alarm, and after waiting three or four minutes, the deceased went in the bedroom and got his pistol, then went to the door, unlocked it, and walked out.

His widow testified she heard him say, "Was there something for you?" or "What can I do for you?" That there was no answer; then she heard some one say with an oath, "I will kill you"; then a shot was fired, and she heard her husband scream, and heard him fall. A few minutes later, the car was driven west; that she found her husband lying on his face, and he died a few minutes

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later; that his pistol was lying by his side; that it was a moonlight night.

The witness Bunny testified that he was awakened by hearing a shot fired, and, as he raised up, saw Red Carson with a sawed-off shotgun in his hands, getting in the car on the right side, and the defendant Evinger, getting in the car on the left side.

The witness Holt testified he was aroused by hearing a shot fired, and saw Carson on the right side of the car with a shotgun in his hands and Evinger on the left side with a pistol in his hand.

That Max Kriewitz was murdered at the time and place alleged and in the manner charged, was not disputed on the trial, and the only issue of fact was whether the defendant Paul Evinger was present, assisting, aiding, and abetting the commission of the crime of attempted robbery with firearms, when the fatal shot was fired by Red Carson.

The fact that this defendant and Carson were on the outside of the car with guns in their hands, and their conversation as they drove away, clearly shows the intention was to rob the deceased, and that they were acting together.

While it would have been more satisfactory if the guilt of the defendant had been altogether established by the testimony of reputable witnesses, free from any imputation of interest, yet such evidence cannot often be procured as to crimes committed by fugitives from justice and ex-convicts, frequently the haunts of vice and dissipation, and in such cases, the truth must be caught by the aid of such means as the situation affords. Upon the record before us, the weight of the evidence and its convincing effect was for the jury, and not for the court. It follows

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from what has been said that the count did not err in overruling the motions for a directed verdict.

The errors assigned and argued will be considered in the order presented in the trial court. It is contended that the defendant was denied rights guaranteed by the Constitution, in that he did not have, or waive, a preliminary examination; therefore, the court erred in overruling his motion to remand the case for preliminary examination.

The record in this case shows that on August 29, 1933, an amended complaint was duly filed before L.L. McKenzie, J.P., as a committing magistrate, charging that on the 6th day of May, 1933, in Osage county, Red Carson and Paul Evinger did kill and murder Max Kriewitz; that on June 8th, appellant, Evinger, was brought before said justice of the peace, and upon arraignment the complaint was read to him. He then waived further time to plead, and entered a plea of not guilty, and waived his right to a preliminary examination. He was then held to answer to the district court of Osage county for murder; a transcript of the proceedings was duly filed with the clerk of the district court.

January 15, 1934, the county attorney filed an information in the district court of said county, and a copy of said information was served on appellant. On Mach 1st, a list of the witnesses and their post-office address was served on appellant; thereafter, on March 8th, a motion to remand the case to the committing magistrate was filed, alleging that he was not guilty of the crime charged in the information, and that he did not understand he was entitled to a preliminary examination at the time he waived the same.

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A hearing was had on the motion to remand, at the conclusion of which the motion was denied. Thereupon counsel for appellant asked leave of the court to withdraw the plea of not guilty, and that he be permitted to file a demurrer to the information. Leave to withdraw the plea was granted. A general demurrer was filed, and overruled. Thereupon the defendant entered a plea of not guilty.

The county attorney then asked leave to indorse the names of Eddie Halt and Fay Bunny on the information as witnesses.

It appearing from the record that the names of Eddie Holt, post-office address McAlester, Okla., and Fay Bunny, post-office address Tonkawa and Granite Reformatory, Okla., were included in the list of witnesses served on the defendant March 1, 1934, as shown by the return of the sheriff of Osage county, filed with the clerk of the district court of Osage county on March 2d. Leave to make the indorsement was granted. Exception reserved. Thereupon the defendant announced ready, and the case was called for trial; a jury impaneled and duly sworn to try the case.

It is well settled that objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, and objections to the sufficiency of the same should be taken by demurrer thereto, as provided by section 2936, St. 1931, Procedure Criminal. Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116.

The constitutional provision guaranteeing the accused the benefit of a preliminary examination is as follows: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an

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examining magistrate, or having waived such preliminary examination." Bill of Rights, ยง 17.

The precedent fact that a preliminary examination had been had or waived constitutes the jurisdictional basis for the prosecution for a felony by information.

Where the defendant waives the right to a preliminary examination, he also waives the right to question any irregularities that may have occurred in the proceedings, and where the magistrate holds the defendant to answer, and such magistrate files a transcript of the proceedings in the district court, such court has jurisdiction until a motion to set aside or quash the information is sustained. Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332.

In the recent case of Ex parte Robinson, 56 Okla. Cr. 404, 41 P.2d 127, 129, it is said:

"This constitutional provision is for the benefit of an accused. It is in the nature of a personal privilege under which he may insist upon a preliminary examination before he can be put upon his trial or called upon to answer an information, but by its, express terms he may waive this right." Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, 881, 139 Am. St. Rep. 949 ; Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Ralston v. State, 16 Okla. Cr. 634, 185 Pac. 831; Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423; Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649.

It follows that the motion to remand for a preliminary examination was properly overruled.

As to the sufficiency of the information, counsel in their brief say:

"The reading of it will disclose that it charges that the two defendants named, 'Paul Evinger and Red Carson,

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then and there being, did then and there wrongfully, unlawfully and feloniously, without authority of law, and with a premeditated design, to effect the death of Max Kriewitz, shoot, kill and murder the said Max Kriewitz with a dangerous and deadly weapon, to wit, a sawed-off 12-gauge shotgun,' the rest of the information being formal."

And it is argued that the same "is fatally defective in that it charges that two persons committed a murder, and that it nowhere charges that they acted conjointly, or together in the commission of the offense, nor does it charge that said offense was committed while engaged in the perpetration of another or any felony."

In the case of Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452, it is held:

"An indictment or information which alleges that a number of different persons who were concerned in the commission of an unlawful homicide held the pistol in their hands and fired the fatal shot is sufficient without stating which one of said defendants held the pistol and fired the fatal shot."

In the case of Carle v. State, 34 Okla. Cr. 24, 244 Pac. 833, it is held:

"Where an information charges murder under the first subdivision of [sec. 2216, Sts. 1931], in perpetrating a homicide without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said statute."

And see Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300.

Where an information charges that the injuries to the deceased were inflicted by the defendant with the premeditated design to effect death, and alleges the means

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with which the homicide was committed, it is sufficient. Bookman v. State, 12 Okla. Cr. 49, 151 Pac. 1074.

It follows the demurrer was properly overruled.

It is also contended the court erred in permitting the indorsement upon the information of the names of the two witnesses, Eddie Holt and Fay Bunny.

A sufficient answer is found in the case of Tallon v. State, 22 Okla. Cr. 89, 210 Pac. 309, holding that:

"The failure to indorse on the information prior to the commencement of the trial the name of a witness to be used in chief against defendant in a capital case is immaterial, provided the name of such witness, with his post-office address, appeared in the list of witnesses to be called in chief by the state, served on defendant in compliance with section 20, article 2, of the Constitution."

And see Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475, and Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350.

It is also argued that there was no proof of venue in that, "At no place in the record, in all its 480 pages, does any witness testify that the location of the killing was in Osage county."

This contention is not tenable. The venue in a criminal case may be established by circumstantial evidence. Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427.

Courts will take judicial notice of the boundaries of counties and location of towns. This court judicially knows that the western and southern boundary of Osage county is the Arkansas river. It is undisputed that the scene of the homicide was a filling station east of the Arkansas river, south of Burbank, and about 16 miles northwest of Fairfax.

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In McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026, it is said:

"It is the better practice for the state to prove venue by direct evidence, yet if venue is proven by circumstances or by indirect evidence, or if there be proof of facts from which the court takes judicial knowledge of venue, it will be sufficient."

And see Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232.

Another assignment of error is:

"Misconduct of the county attorney in his closing remarks to the jury, when he said: 'Send this hijacker to the electric chair and to his grave, where his partner in crime, Red Carson, has already been sent by the Kansas officers'."

No objection was made or exception saved to this remark, and, if made, it is not shown in the case-made, except as one of the grounds in the motion for a new trial; and for this reason cannot be reviewed. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825.

By numerous decisions of this court, the rule is well settled that misconduct of the county attorney in his argument to the jury can only be shown by being properly incorporated in the case-made, or by bill of exceptions duly allowed, and, when not so preserved in the record, cannot be shown by affidavit or mere recitals in the motion for new trial. Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441.

Some exceptions were taken by the defendant during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken.

The court refused to instruct the jury on the law of accomplice testimony, and its ruling in this respect is assigned as error.

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When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury, as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916 F, 1251.

We think upon the evidence in this case it was a question of law for the court, and not one of fact for the jury. There is no evidence in the record tending to show that the witnesses Halt and Bunny were accomplices. In so far as the record shows, the defendant Evinger was the only person participating with or aiding and abetting Red Carson in the attempted robbery with firearms.

In the case of Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822, 824, it is said:

"To constitute one a party to a crime under this statute [sec. 1808, Sts. 31], it is necessary that such person be concerned in the commission of the offense -- that is, that he either commit it or aid or abet its commission -- and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission."

In Carrice v. State, 16 Okla. Cr. 118, 180 P. 870, it is said:

"To constitute one a party to a crime, it is necessary that such person be concerned in its commission. He

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must either commit it, or aid and abet in its commission, and it is not sufficient that he merely acquiesces therein with knowledge that another is committing the offense."

In the case of Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, 206, it is said:

"It may be stated as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity. When the accused is present and aiding and abetting another in its commission he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction or connect him criminally with the killing."

The instructions given by the court fairly and fully cover the law of the case, including the defense of an alibi, and where, as in this case, the facts are not disputed, and there is no evidence to show that any witness for the

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state was an accomplice, there was no error in refusing to give an instruction upon the necessity of corroborating an accomplice.

Having considered the errors assigned, and giving due weight to every consideration urged by counsel for the defendant, we are satisfied that no exception taken upon the trial is of any force.

Our conclusion is that the defendant had a fair trial and was properly convicted.