(Syllabus.)

1. Indictment and Information — Particularity of Pleading Where Necessary to Prove Precedent Crime. Ordinarily, where it is necessary to prove a precedent crime upon which hinges the particular crime charged, both should be pleaded in such detail, in ordinary and concise language, as will enable persons of common understanding to know the nature and import of the accusation.

2. Escape — Aiding Escape of Felon — Insufficiency of Information. If the allegations in the information are insufficient to show that the principal was guilty of a particular felony, the allegations would be insufficient to put the accused on trial for aiding a felon to escape.

3. Appeal and Error — Insufficiency of Evidence. As a general rule, verdicts which have received the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense. However, when the evidence is all carefully considered and it appears that it is wholly wanting in respect to some essential element of the offense charged, the judgment will be reversed as insufficient to sustain the conviction.

Appeal from District Court, Muskogee County; E.A. Summers, Judge.

A.G. Minyard was convicted of aiding and assisting a fugitive from justice, and he appeals. Reversed.

Plaintiff in error, A.G. Minyard, was convicted on a charge that in Muskogee county, on July 30, 1934, he committed

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the crime of aiding and assisting a fugitive from justice, and, in accordance with the verdict of the jury, he was sentenced to imprisonment in the penitentiary for a term of one year. A substantial statement of the evidence is as follows:

It appears that on the said day, one Charlie Martin, an alleged convict at large in the city of McAlester, called the Yellow Cab station and the defendant, a taxicab driver at McAlester, answered the call. Martin said to drive to Krebs, and on the way Martin ordered him to drive to Muskogee. The officers at Muskogee had been notified to be on the lookout for said Martin, and when the defendant and Martin, after visiting two or three places in Muskogee, were stopped in the street by Officers Ed Hensley and Billy Guy, and in attempting to arrest the said Martin, he, in a scuffle, took from Officer Billy Guy his gun, and in the shooting that followed Officer Ed Hensley and Charlie Martin were killed, and Officer Billy Guy received a gunshot wound.

The main evidence relied upon by the state for a conviction was given by John Wolsey, Muskogee chief of detectives, who testified as to statements made by defendant, Minyard, concerning his acts connected with driving the said Martin from McAlester to Muskogee. The witness Wolsey testified as follows:

"On the night of the shooting I talked to defendant Minyard in my office at the Police Station. He said he picked up Charlie Martin in McAlester in a Yellow Cab. Martin told him he wanted another car, one that wasn't so conspicuous, so he got another car and started out of town; that Charlie Martin took a piece of pipe out of the Yellow car and put something on him and made him drive him to Muskogee; that getting to Muskogee, they went to Tolly Collin's lunch place and from there to Collin's house;

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that Charlie Martin forced defendant to change clothing with him in Tolly Collin's garage; that defendant and Martin stopped at Jimmy Anthis' filling station and that Martin used the telephone; that he asked defendant why he did not run while Martin was using the telephone at Anthis' filling station and defendant replied that 'it would not get him his thirty dollars, and also that he was afraid to run because Charlie Martin was watching him at all times.' That after Martin had returned to the car they left the filling station and were at 24th and Boston when they encountered officers Billy Guy and Ed Hensley where a shooting took place between Charlie Martin and Ed Hensley and Billy Guy in which Ed Hensley was killed and Billy Guy seriously injured and Charlie Martin was killed by the officers. The defendant took no part in the affray between the officers and Charle Martin. That after the shooting defendant called an ambulance and assisted in getting the wounded to the hospital and then went to the police station to see if there was anything else he could do and that while there he was put in jail."

Tolly Collins testified:

"I had a lunch room in the 200 block East Okmulgee street. Charlie Martin came there. I shook hands with him and said, 'What are you doing here? He said, 'I got a leave of absence.' And he asked the boy with him if he wanted some beer, the boy said he would rather have a coke. Martin said he wanted to talk with me. I said I didn't have time, 'You go out to my house and I will be out there soon.' They both left in the car. About an hour later I met them at my house. A girl friend was with me and I parked behind their car. We talked about first one thing and then another. His father had committed suicide about two years before. We talked about that. He wanted to borrow my car and I wouldn't let him have it. He wanted to borrow my pistol and I wouldn't let him have that. The boy, Minyard, said he wanted to leave, that he wanted to get back to McAlester. He said that at least three times. Martin said, 'I'm not through with you yet.' They left and were gone about fifteen minutes, then came back. Martin

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wanted to know where Jackson lived. It was then just about dark. I did not see Martin any more."

On cross-examination he stated:

"I know Martin's reputation. He was a pretty dangerous fellow; age about 30 years, fine athletic build. The boy said several times he wanted to get back to McAlester, he wanted to go back home. He is a much smaller man then Martin was. When Martin wanted my car and my pistol, I began to think he was an escaped convict. I was charged with Minyard for helping this fellow. I was discharged by Judge Beavers after a preliminary hearing."

Forrest Jackson testified:

"I was present the next morning when Mr. Wolsey and you (the county attorney) talked with the defendant. You or Mr. Wolsey asked him why he went to the filling station and he said Charlie Martin told him to stop there, then Martin got out of the car and went in, called a number, came back out and told him to drive on." Asked if anything was said at that time why he did not drive off, witness answered, "He said he hadn't got his pay for his taxi fare, that he had been promised a certain amount and he couldn't get it unless he got it himself; that the police wouldn't get it for him and he wouldn't get it unless he got it from him himself, that the rule is if a driver does not collect, he is supposed to pay it himself."

The state rests.

Defendant demurs to the state's evidence and moved the court to advise the jury to return a verdict of not guilty for the reason that the evidence is not sufficient to warrant a conviction. Overruled. Exception.

Millard Morris testified that he was chief clerk of the Sam Horn Company, wholesale fruit house, McAlester. A man came in and asked permission to use the telephone on his desk. He told him he could. The man said, "Do you

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know any taxicab numbers?" and he said he did not recall any, and passed the telephone directory to him. The man called the first one on the list, the Aldridge Taxi Company. Then he called another and then another. It was about the fourth call when he got the Yellow Cab. A Yellow Cab drove up in front; that he was not well acquainted with the Minyard family, but took the driver to be that young man.

As a witness in his own behalf, the defendant, A.G. Minyard, testified:

"I was born in Indianola, Okla., and lived there until I was about ten. Then we moved to McAlester and have lived there ever since. My age is 20 years. I am married. My family consists of my wife and child. I am an employee of the Yellow Cab Company, owned by my brother, H.A. Minyard. There are two drivers during the day and two at night. My brother, age 17, answers the phone. I was standing in front when my brother got the call. He said, 'Cab to Sam Horn Company.' I made the call in a yellow Plymouth, and stopped directly in front of the Sam Horn Company. A man got in the front seat with me. He had on blue overall trousers, Black Beaver Brand shoes, a brown cap, a white shirt and a dark tie. He said he wanted to go to Krebs and drink some beer. I have since learned that the man was Charlie Martin. I turned east on the road to Krebs and Martin said, 'Let's go the old road.' I turned and we started out that way and he said, 'Don't you have a plain car?' and I said 'Yes'. He said, 'This car is too conspicuous to throw a party in, let's get the black car.' I said, 'All right, we will drive back to the stand and get it.' He said, 'No, don't do that, call and have them bring it out.' I drove on to Mrs. Pasco's Grocery Store, went in and called the stand and told them to send a black car to Pasco's Grocery. A driver named Smith brought it out. I never saw Martin before. He got in the front seat of the black car with me. I drove down Electric Avenue and started to turn in on the old road to Krebs.

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He said, 'No, we are going to Muskogee.' I said, 'Aren't you a convict?' He cursed and said, 'It don't make any difference what I am.' He had on civilian clothes. I said, 'I am not allowed to take you to Muskogee.' He ran his hand down in his bosom and said, 'You son of a so and so, you are going to take me to Muskogee right now.' And he looked like he meant it. One of our drivers was knocked in the head and thrown out of the car by two convicts not long before that and a cab driver was killed by a convict and thrown over the bridge. He told me to hit the highway on the left and I drove north and followed 73 Highway. It was then about three in the afternoon. On the bridge north of Eufaula there were two women and a little girl walking along. He said, 'Stop and back up.' I did and the two women and the little girl got into the back seat. They got out at Twenty-fourth street in Muskogee. We drove on to Collins' place. I had never been there before. He said, 'Get out, be careful, and don't say anything to anybody.' He said, 'Bring us two glasses of beer.' And I said, 'No, bring me a coke.' He talked to Collins a while, then he directed me to drive to Mr. Collins' house. I stopped in the drive way. He said, 'How much do you weigh?' I said, 'About one hundred and thirty.' He said, 'I believe I can wear your trousers, I will just change with you.' He said, 'Drive the car up in the garage about half way.' When it stopped he said, 'Get out on my side, and get over in the corner. Throw your trousers over to me.' And he threw his overall pants to me. We got back in the car and sat there until Collins and a lady friend of his came up. Martin said, 'Let's get out.' And we got out. I sat on the running board of Collins' car and they sat in chairs on the lawn. I asked Martin if I could go home. He said that he wasn't through with me yet. He asked Collins about a man named Jackson — where he lived and he sent this friend of Collins to find out Jackson's home address. She came back and said it was 604 South Twenty-fourth street. We got in the car and went out and tried to find this address. We couldn't find it and we drove back to Collins' house. Martin asked Collins' lady friend to get the telephone book and he took the telephone number,

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and then told me to back out and go east toward town. On East Okmulgee he said, 'Stop at this filling station, and I'll use the telephone. I will be watching you all the time and don't make any false moves.' He got into the car. He said, 'Let's go down this street.' I backed out and started down. He said, 'Turn here.' The officers drove up and hollered to us to halt. Martin said, 'Don't stop the car.' I thought if I didn't stop the officers would shoot me, and if I did, Martin would shoot me, so I reached down and cut my ignition, and stopped the car about 30 feet from the next corner. The officers stopped theirs. Martin reached over and punched me saying, 'Don't say a word or I will break your neck.' Mr. Hensley walked up to my side of the car and Mr. Guy to the other side. Mr. Hensley said, 'Who are you and where are you from?' Martin said to me, 'Go ahead and give us up; they have got you now.' He told the officers, 'He forced me to bring him up here from McAlester. I am a cab driver from McAester.' That was what Martin said. I was afraid to say anything. Mr. Hensley opened the door on my side. I told him who I was and how the mistake was made. I told him, 'That fellow has everything backwards, I am the cab driver from McAlester and he is the convict.' Mr. Hensley felt over me and asked, 'Do you have anything in the car?' I said, 'No.' He reached in the car and turned the light on and looked around. Then he said, 'Get in. I am going to have you drive us to town.' I got under the steering wheel. Their car was blocking traffic, so he went over and got in his car, and drove on south, and turned around the corner on Boston. About the time his car stopped, Martin turned and hit Mr. Guy. He staggered backwards and Martin turned around the back of the car. Mr. Guy ran and grabbed him by the shoulder. Martin turned quick and took Mr. Guy's gun from the holster and started hitting Mr. Guy over the head with it. Mr. Guy was hollering for help, and they were fighting. Mr. Hensley ran up between them and shot Martin in the stomach four or five times. Martin's gun fired but I don't think he hit anyone. The next shot hit Mr. Hensley. The next one barely missed me. Martin fell first and said, 'You have killed me.' Mr. Hensley

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said, 'You have killed me too.' Mr. Guy said something about being shot. Mr. Hensley was staggering around. Mr. Guy reached down and picked up his gun and came over to me and I said, 'I haven't done anything. All three of you are hurt. Let me get you some help.' I went over to some houses and told everyone I saw to call some ambulances. I then went over to where Mr. Hensley was and Martin said, 'Don't blame this boy for bringing me up here. I forced him to do it.' Martin said something about calling his wife then it looked like he died or fainted. Mr. Hensley was calling for help and I picked him up by the shoulders and Mr. Guy came over to help me but staggered and fell over Hensley's feet. Just then the ambulances came and I helped load them into the ambulances. I then got into my car, drove down to the police station and told them who I was and told them about the trouble that occurred. There was a big crowd there. Finally chief of police, Mr. Bolton, came in. I told him about the occurrence. I wanted to call my home to tell them where I was but they locked me up. In about an hour Mr. Wolsey called for me, and I talked to him. Four or five other fellows were there, and I told him freely all I knew about it. Then he let me call my people. The next morning they took me into another office across the hall. Mr. Oldham, the county attorney, Mr. Wolsey and another man were sitting in there. They asked me if I knew the man sitting there. I didn't know him. They told me his name was Jackson, the man that the convict had been looking for. On the way up between McAlester and Eufaula, Martin pulled my shoes off, put them on and gave me his shoes and told me to put them on. I did not have any agreement with Martin to bring him to Muskogee for thirty dollars. When he got in the car I told him it would be fifty cents going to Krebs and fifty cents coming back, and a dollar an hour waiting time. The last time we left Collins' house, Martin said, 'You have acted nice so far. I want you to continue doing so. I will give you thirty dollars if you act right. If you don't you won't get it, and I'll make you act right.' "

Cross-examination:

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"Q. Didn't you tell me down at the jail in the conversation we had down there that the man told you that you were to take him to Tulsa and he would pay you $30? A. No, sir.

"Q. Did you say he told you that you would take him to Tulsa? A. No, sir. He said something about going to Tulsa and the only thing I heard about that was when he said to Collins jokingly, 'If you won't let me have your car to go to Tulsa, I'll have this boy take me.' "

L.E. Tomm testified that he has lived in Muskogee about 30 years, engaged in the real estate business. Was sitting on the lawn of his house, one block north of where the shooting occurred. That he went down there and found a boy lying in the gutter bleeding, and he said, "I'm dying, won't somebody telephone my wife in Tulsa." An officer was sitting on the curb about 12 feet away. The boy said his name was Charlie Martin and he asked some one to phone to his wife in Tulsa and gave a telephone number. A lady was standing there, Mrs. Killilay, and she promised she would telephone his wife and he said, "Tell her I love her and that I did this for her, and don't blame the driver, I put a gun on him and made him do it."

O.H. Witt, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

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

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

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

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

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

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

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

Ordinarily, where it is necessary to prove a precedent crime upon which hinges the particular crime charged, both should be pleaded in such detail in ordinary and concise language as will enable persons of common understanding

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to know the nature and import of the accusation; as, for instance, where one is charged as an accessory after the fact the original felony should be pleaded with the same degree of certainty as would be required to sustain a prosecution against the principal. Bishop's New Crim. Procedure, Vol. III, "Accessory," pars. 5, 8, 11; 22 Cyc. 363; Tully v. Commonwealth, 11 Bush (Ky.) 154.

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

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

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

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

It is also contended on the part of the plaintiff in error that the verdict was contrary to law and to the evidence in the case, in that there was no evidence tending to show that the defendant willfully and knowingly aided or assisted the alleged fugitive from justice to escape. The

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theory of the state it seems was that the defendant, after reaching Muskogee county, had knowledge of the fact that the said Martin was a convict and fugitive from justice and that he should have left his car when they stopped at the Anthis filling station and that he had such knowledge when Martin compelled him to exchange their trousers. We think this theory is untenable. It is undisputed that the defendant was abducted in Pittsburg county by the said Martin and made, by said Martin, to go to Muskogee county. The defendant also had a duty to protect the property of his employer, the automobile he was driving.

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

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

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

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

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