(220 P.) The trial court submitted the question to the jury as to whether or not Taylor was an accomplice under the facts disclosed by the evidence, and further in the general charge defined the meaning of the word "accomplice." The court did not, however, instruct as to the necessity of the state corroborating an accomplice by other evidence tending to connect this defendant with the commission of the crime, and neither was such an instruction requested by the defendant. We think, under the holdings of this court in the following cases: Good v. State (Okl. Cr. App.) 207 Pac. 565, and cases cited—that Taylor was an accomplice, and that the court should have given an instruction upon the necessity of corroboration in this case; but we do not believe that the failure to so in struct, in the absence of a specific request therefor, should result in a reversal of this judgment. In fact there is evidence in the record independent of the testimony of Taylor tending to connect the defendant with the commission of this crime, and sufficient in law to corroborate the accomplice. Independent of the testimony of Taylor there is testimony of another witness who saw this defendant near the place where the car was stolen just a few minutes before the car was taken, and, further, this defendant was, in conjunction with Taylor, found in possession of the car in the city of Tulsa just a few hours after the car was stolen. Defendant's explanation of his connection with the car does not impress this court as being true, and, further, this court is not authorized to reverse a judgment of conviction solely because of misdirection of the jury unless it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Section 2822, Compiled Laws 1921. In this case there was no miscarriage of justice, and it cannot be said that where there is sufficient evidence tending to corroborate the accomplice that the failure of the trial court, in the absence of a request therefor, to instruct on the necessity of corroborating evidence deprived this defendant of any constitutional or statutory right. [3] It is also contended that the statute upon which this prosecution is based, to wit, chapter 102, Session Laws 1919 (section 2120, Compiled Statues 1921), is unconstitutional and void because the title to said act is in violation of section 57, art. 5, Constitution. The question here presented has been decided adversely to defendant's contention in the case of Jackson v. State (Okl. Cr. App.) 211 Pac. 1066, not yet officially reported, and Newcomb v. State (Okl. Cr. App.) 213 Pac. 900, not yet officially reported. While the punishment assessed by the jury is within five years of the maximum under the statute, the record discloses that this is not the first conviction of defendant for automobile larceny. Defendant admitted his previous conviction of grand larceny in connection with the theft of an automobile in Creek county, for which he was sentenced and served a term of three years' imprisonment in the Oklahoma Reformatory at Granite, Okl. While the punishment is severe, it cannot be said to be excessive for a second offender. Judgment affirmed. DOYLE and BESSEY, JJ., concur. KENNEDY v. STATE. (No. A-3921.) (Criminal Court of Appeals of Oklahoma. May 12, 1923. Rehearing Denied Dec. 4, 1923.) (Syllabus by the Court.) 1. Criminal law 372(1)—Evidence tending to show design to commit crime charged admissible, although tending to show accused guilty of separate offense. Evidence tending to show design or plan to commit the crime charged is admissible, although it may have tended to show defendant guilty of a separate offense. 2. Criminal law 390-Relevancy and competency of evidence tending to show design to commit crime must be construed according to experience and common sense. The kinds of conduct which may evidence design are innumerable, and the relevancy of such evidence and its competency must vary with the circumstances under which the conduct takes place and be construed according to everyday experiences and common sense. For evidence held admissible to show design to commit the crime charged see body of opinion. 3. Criminal law 894-Defective but not void verdict should be objected to in trial court. A verdict, not void, but merely defective, should be objected to in the trial court. 4. Criminal law 594 (1)—Overruling of motion for continuance for absent witness held not erroneous. Where defendant had two days in which to procure the attendance of an absent witness, and after such time made no further showing that such delay was insufficient to procure the witness, an order overruling an application for a continuance based on the absence of the witness two days before the case was tried presents no error. Appeal from District Court, Le Flore County; E. F. Lester, Judge. Hugh Kennedy was convicted of grand larceny, and he appeals. Affirmed. Neal & Neal, of Poteau, for plaintiff in error. George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MATSON, P. J. This is an appeal from, that community, and there is some evidence the district court of Le Flore county, where- in the record tending to corroborate the in the plaintiff in error, Hugh Kennedy, | defendant's story of how he became poshereinafter referred to as defendant, was sessed of this particular money. On the convicted of the crime of grand larceny, and other hand, the other young man positively his punishment fixed at imprisonment in denied having given defendant this particuthe state reformatory at Granite for a pe- lar bill. riod of one year. [1, 2] Among several assignments of error, the one particularly relied upon for reversal is the alleged error of the trial court in permitting, over objection and exception of defendant, the evidence of defendant's presence in the barber shop of Cook, on the two occasions above referred to, when Cook was absent and defendant was seen in a crouch which this particular money was abstracted. It is urged, in the brief of counsel for defendant, that the admission of this evidence was erroneous and prejudicial, in that it tended to prove defendant's guilt of a separate crime, having no connection or bearing upon the issues in this case. Defendant was convicted of stealing about $27 in money from one Walter Cook, who was at that time (9th day of August, 1919) running a barber shop in the town of Le Flore, Okl. Cook testified that he left his barber shop some time between 5 and 6 o'clock on the afternoon of that day, after closing the back door and turning the latching position close to the cash drawer from on it and closing and locking the front door; that he left the money in the cash drawer in the barber shop and last saw it about 4:30 that day; that after leaving the barber shop he went into the store of the defendant's father, which was also the post office, to see if he had any mail, and then went across the street to a store for the purpose of purchasing a pair of shoes; that he returned to the barber shop about 30 minutes later, unlocked the door, and that he and his father entered the shop; that he noticed that the back door was open about a foot; that he then discovered that the money was missing from the cash drawer; that the defendant had been in the shop that day on numerous occasions, and had left the shop just a short time before witness closed the shop and went to buy the pair of shoes; that among the bills which were stolen was a $5 bill which had been previously torn in two and pasted together with brown paper. Another witness testified that on the 13th of August, 1919, in the morning, the defendant appeared at his store in the town of Le Flore and presented a $5 bill which had been torn in two and pasted together with brown paper, in payment of a small purchase made by defendant. This $5 bill was afterwards recovered and identified by Cook as one of the bills lost by him from the cash drawer, and was also identified by the cashier of the bank at Le Flore as a bill that he had torn in two and given to a brother of Walter Cook, and this brother also testified that he had turned this particular bill over to Walter Cook, and it was put in the cash drawer at the barber shop on the day of the larceny. There is also evidence by a couple of witnesses that a few days before the alleged commission of this larceny by the defendant, the defendant was seen in Cook's barber shop in a crouching position, close to the cash drawer from which this particular money was stolen. Defendant did not deny the possession of the $5 bill with the peculiar marks of identity on it, but explained his possession by testifying that he had received it in payment of a debt due him by another young man of We believe the evidence was admissible on the theory that the defendant designed to burglarize and steal from the barber shop of Cook, and that the larceny for which he was convicted was part of a preconceived plan or design to steal money from the cash drawer of Cook's shop, and that his prior conduct was so closely related in point of time and similar in its circumstances to the circumstances under which this larceny was evidently committed as to be indicative of a design on the part of defendant to commit this larceny. Under such circumstances the fact that it may have also tended to show the defendant guilty of a separate offense was immaterial. We recognize that it is impossible to establish any general or fixed rule which will be definite enough to determine whether evidence of defendant's former acts and conduct will be relevant to prove design in every instance. The kinds of conduct which may evidence design are innumerable, and the relevancy of such evidence and its competency must vary with the circumstances under which the conduct takes place, and be construed according to our everyday experiences and to common sense. We hold that the evidence here complained of was admissible under the circumstances in this case to show a design on the part of the defendant to commit the larceny which was here evidently committed under similar circumstances, and it also tended to show the defendant's knowledge of the premises and of the location of the place where Cook kept his money. Further, it is contended that the verdict rendered is so indefinite and uncertain as to be void, and that the trial court was without jurisdiction to sentence the defendant to imprisonment for one year in the state reformatory on the verdict as rendered. No objection was made to the reception of (220 P.) as the verdict. Nor do we find from the record that this assignment of error was ever raised in the trial court. The verdict finds the defendant "guilty of grand larceny charged in the information," and fixed his punishment at "one year in the reform school." There is no penal institution in this state designated "reform school." [3] The trial court instructed the jury that if the defendant was found guilty the jury should assess punishment "at imprisonment in the state penitentiary for a term not exceeding five years." The verdict was not void, as it clearly found the defendant "guilty of grand larceny as charged in the information." The defect of incorrectly naming the reformatory was waived by failure to object to the reception of the verdict, and further by failure to move in arrest of judgment. Had defendant objected to this apparent defect in the verdict at the time the same was returned, the verdict, no doubt, would have been reformed, but defendant will not be heard to raise a technical question of this kind for the first time on appeal. Having by his conduct in the trial court waived the defect as to the incorrect name of the place of imprisonment, the verdict was sufficient to authorize the court to pronounce judgment of conviction and to imprison defendant in the state reformatory at Granite, an institution provided for the incarceration of convicted felons. sustain a conviction, and that no material error was committed on the trial. Appeal from District Court, Harmon County; T. P. Clay, Judge. J. E. Stinson was convicted of shooting another with the intent to kill, and he appeals. Affirmed. R. D. Miller, of Hollis, and S. B. Garrett, of Altus, for plaintiff in error. George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State. DOYLE, J. Plaintiff in error, J. E. Stinson, was tried and convicted upon an information which charged him with having on the 28th day of September, 1920, assaulted one R. D. Sinclair by shooting him with a shotgun with the felonious intent the said Sinclair to kill. In accordance with the verdict of the jury he was by the judgment of the court sentenced to imprisonment in the penitentiary for a term of two years. This appeal is based entirely upon the alleged insufficiency of the evidence to support the verdict. The evidence shows that the defendant and the complaining witness are farmers living in the same neighborhood; that the defendant's son and a daughter of the complaining witness are husband and wife, and there was a dispute existing between the defendant and the complaining witness relative to domestic difficulties between said son and daughter. On the day [4] The assignment that the trial court erred in overruling the motion for a continu-alleged, about 2 o'clock p. m., the complainance of the cause on account of an absent ing witness was riding on a load of cane witness is not meritorious. An alias sub- drawn by a team of mules that he was taking pœna was issued for such witness, and the to a sorghum mill when the defendant steprecord discloses that it was two days there- ped from a cane patch and shot him with a after before the defendant was called upon shotgun. The complaining witness jumped to introduce any evidence in the case. Why off of the load of cane, and the defendant the witness did not appear at this later date fired another shot. Reloading his gun he is not disclosed by the record; at any rate fired three more shots. The complaining defendant did not again urge his applica- | witness had one shot wound in the scalp, tion for further delay. We think it apparent two or three in the back, and two in the defendant had ample time to get the witness left arm. When the defendant was arrestor else should have made a further showing ed that evening he stated to the sheriff: of his inability to procure his attendance "I went to the cane patch and stayed there before closing his case. until Mr. Sinclair passed the second time." Judgment affirmed. The sheriff asked him: "What did you stay there for all day?" Defendant said: "Did you ever go out to murder a man? If you ever do you will find it a bigger job than you think it is?"-and told the sheriff that he shot five times. The gun was loaded with BB shot. DOYLE and BESSEY, JJ., concur. STINSON v. STATE. (No. A-4095.) (Criminal Court of Appeals of Oklahoma. Oct. 18, 1923. Rehearing Denied Dec. 4, 1923.) (Syllabus by the Court.) Homicide 257(1)-Evidence held to sustain conviction for shooting another with intent to kill; cause held without trial error. In a prosecution for shooting another with intent to kill, the evidence held sufficient to He interposed two defenses: The first that he acted in self-defense, and, second, that of insanity. As a witness in his own behalf the defendant testified: "My age is 46 years. I live in the northwest corner of Harmon county. My oldest boy married Mr. Sinclair's daughter. On the day of the difficulty I started over to the sorghum For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mill to see when I could get my cane ground. I was in Orr's cane patch, and saw Mr. Sinclair and Roy Smith pass. That was about three hours before the shooting occurred. Then I saw Mr. Sinclair driving along there with a load of cane. I walked towards the wagon. My object was to see him and see if we could get together and settle our affairs. Mr. Sinclair reached for his gun, and I shot him when I saw the gun. I thought he intended to shoot me. He had been threatening me for two or three years. I was about 40 or 50 yards from him when I spoke. After the first shot he kept trying to get his gun, and every time I shot it seemed to me like he was trying to get his gun out." There was no evidence tending to support the insanity defense. Upon the defendant's own testimony he was not warranted in shooting the complaining witness, and the statements of the defendant to the sheriff, as testified to by him, was not denied by the defendant. The cause appears to have been fairly tried. It was submitted to the jury by instructions which fully cover the law of selfdefense and the defense of insanity, and the verdict appears to have been fully justified by the evidence. We are satisfied from an examination of the record that no error was committed on the trial upon which a reversal of the judgment of the district court would be authorized, and it is therefore affirmed. 3. Witnesses 52(7)-Wife not competent against husband in rape prosecution. A woman is not a competent witness against her husband in a prosecution against him for rape or assault to commit rape upon a third person, under a statute permitting her to testify in a prosecution for a crime committed by the husband against the wife. 4. Constitutional law 70(1)-Statute as to competency of husband or wife to testify not construed so as to amount to judicial legislation. To enlarge the scope of the statutory rule permitting the husband or wife to testify against the other, where the offense charged is an offense against the innocent spouse, so as vexing, humiliating, or distressing the innocent to include every offense remotely or indirectly spouse, would be to state the rule too broadly and would amount to judicial legislation. Such a construction would throw the doors wide open for the introduction of evidence by one against the other in any and every case affecting their domestic affairs. In other words, such a construction of the exception to the rule would in a large measure abrogate the rule itself. 5. Cases overruled. The rule of evidence based on section 2699, Comp. St. 1921, as announced in Hunter v. State, 10 Okl. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, so far as it is in conflict with the holdings here announced is overruled. Appeal from District Court, Oklahoma MATSON, P. J., and BESSEY, J., concur. County; Geo. W. Clark, Judge. CARGILL v. STATE. (No. A-3874.) Guy Cargill was convicted of rape in the first degree, and he appeals. Reversed and remanded. Pruiett, Sniggs, Patterson & Morris, of Oklahoma City, for plaintiff in error. (Criminal Court of Appeals of Oklahoma. April Asst. Atty. Gen., for the State. 23, 1923. Rehearing Denied Geo. W. Short, Atty. Gen., and N. W. Gore, Dec. 4, 1923.) (Syllabus by the Court.) I. Witnesses 40(1, 2) —Intelligence, and not age, held test of competency; 7 year old prosecuting witness held competent to testify in rape case. Section 589, Comp. St. 1921, provides that children under 10 years of age who appear incapable of receiving just impressions of the facts concerning which they are examined, or of relating them truly, shall be incompetent to testify. It follows, therefore, that intelligence, and not age, is the vital criterion. In this case we think the witness was qualified. Whether a witness under the age of 10 years is competent is largely within the discretion of the trial court. 2. Statutory provisions. Neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other. Section 2699, Comp. St. 1921. BESSEY, J Guy Cargill, plaintiff in error, here referred to as the defendant, was on September 14, 1920, in the district court of Oklahoma county, convicted of rape in the first degree, and his punishment was fixed at life imprisonment in the state penitentiary. The defendant's cause is now here on appeal, and he seeks to have the judgment of the trial court reversed: First, on account of the reception of alleged incompetent testimony; second, because of erroneous instructions given; third, because of improper conduct of the county attorney in his argument to the jury. The testimony on the part of the state is of a revolting nature and will not be stated in detail. Briefly, it was shown that defendant went to the woods near his home with his stepdaughter, a child of the age of seven years, to cut some stakes or poles to mend a hog pen, and that while there he ravished the child. The testimony of the abused girl For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) and of her mother, the wife of the defendant, and of a physician, showed that the girl after the assault was in a badly lacerated condition, indicating sexual abuse. The defendant claimed that the girl fell on one of the poles he had cut and so sustained the injuries shown. W. 41). We think, however, that the rule as above stated and as announced in the annotations in the Allen Case is too comprehensive and is not fully supported by the cases there cited. The reasons given by law text-writers and courts why neither a husband nor wife shall Defendant claims that the child, by reason in any case be a witness against the other of her age and want of intelligence, was in- except in a criminal prosecution for a crime capable of giving competent testimony. This committed by one against the other have been objection was urged in the court below, and stated thus: First, identity of interests; secafter an examination to test her qualifica- ond, the consequent danger of perjury; third, tions the trial court found that she was a the policy of the law which deems it necescompetent witness. The test made, as it ap- sary to guard the security and confidences of pears in the record, indicates that it was private life even at the risk of an occasional fairly made, and the answers given by this failure of justice, and which rejects such evichild witness show that she possessed more dence because its admission would lead to than the average intelligence of persons of domestic disunion and unhappiness; and, her age. The answers given by her, both in fourth, because, where a want of domestic the examination in chief and on cross-exam- tranquillity exists, there is danger of punishination, indicate a good memory of the inci-ing one spouse through the hostile testimony dents related by her, that her impressions of the other. were justly stated, and that she understood that she would suffer punishment if she testified falsely. It sometimes happens that the testimony of children is more convincing than that of older persons. Since we are construing a statute, we are not so much concerned with the reasons underlying the policy of this rule of evidence as we are in a correct construction of the statute as we find it. In the case of Heacock v. [1] Section 589, Compiled Statutes 1921, State, 4 Okl. Cr. 606, 112 Pac. 949, it was held provides: "Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly," shall be in competent to testify. that adultery committed by the husband is a personal injury against the wife. This was based largely on the provisions of our statute (section 1852, Comp. Stat. 1921) providing that a prosecution for adultery must be commenced and carried on by the aggrieved spouse. Thus by statutory enactment adultery is made a crime against the innocent spouse. [5] The case of Hunter v. State, 10 Okl. Cr. It therefore follows that intelligence, and not age, is the vital criterion. Under this rule we think this witness was qualified. Walker v. State, 12 Okl. Cr. 179, 153 Pac. 209. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Whether a witness under the age of 10 years is competent to testify is largely within the Cas. 1916A, 612, was a case where the accused discretion of the trial court. Darneal v. State, husband was charged and tried with having 14 Okl. Cr. 540, 174 Pac. 290, 1 A. L. R. 638. failed to furnish his child with necessary [2] Susan Cargill, the mother of the abused food and clothing. In this case it was held child, was a material witness, possibly the that the wife of the accused was a competent most damaging witness against the defend-witness against him, indirectly holding that a ant, her husband. Her testimony related to facts not a part of the res gestæ and to precedent and subsequent communications with her accused husband. Section 2699, Comp. Stat. 1921, provides: "Neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other," etc. In construing statutes similar to the one quoted above, the appellate courts of the different states have arrived at conclusions not in perfect harmony. It has been held in a minority of cases that a sexual offense by one spouse with or against a third person is an offense against the innocent spouse as well as against the state, and that the aggrieved spouse may testify against the other. See notes and annotations, Commonwealth v. Allen, 16 A. L. R. 490 (191 Ky. 624, 231 S. 220 P.-5 violation by the husband of the provisions of section 1855, Comp. Stat. 1921, was a crime against the wife. This statute provides that any parent who willfully omits without lawful excuse to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter, or medical attendance for his child is guilty of a misdemeanor. In 1915 our Legislature enacted a statute, sections 1856a and 1857, Comp. Stat. 1921, providing for a penalty for wife or child abandonment. This 1915 statute defined a husband's duties to his wife and children, being in some respects analogous to the earli er statute construed by Judge Furman in Hunter v. State, but provided further that in such a case the wife should be a competent witness against the husband. It is fair to assume that if it was necessary to provide specifically by statute that the wife could testify in a case of child abandonment that the |