Pitman v. State

1971 OK CR 189, 487 P.2d 716

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 28, 1971
• Docket: A-14551
• Status: Published

Opinions

CARLE, Special Judge.

This is an appeal by the Plaintiff in Error, hereinafter called Defendant from a conviction of the crime of perjury in the District Court of Oklahoma County, wherein he received a sentence of of one (1) year in the State Penitentiary, which was suspended.

It appears that the Defendant was a practicing Attorney in Oklahoma City and apparently involved to a large extent in defending persons charged with crimes. He had in his employ one E. W. “Jeep” O’Neal. On July 31, 1963, the Defendant and O’Neal entered into the following Memorandum Agreement:

“MEMORANDUM AGREEMENT

“This Memorandum Agreement, made and entered into this 31st day of July 1963, between Valdhe F. Pitman, hereinafter referred to as party of the first part, and E. W. O’Neal, hereinafter referred to as party of the second part, WITNESSETH :

“Whereas, party of the Second part is and has been a salaried employee of party of the first part, and,

“Whereas, parties hereto desire to enter into a new agreement as and for compensation of party of the second part on relation to party of the first part.

“Now, therefore, for and in consideration of the mutual promises and agreements of the parties, it is hereby agreed as follows:

“1. Salary of second party shall cease upon the execution of this agreement; however, second party shall continue working for first party as before, and in addition thereto shall make all bonds for first party on clients represented by first party, for the compensation hereinafter set forth.

“2. Fees for said bonds shall be at the rate of 10% of the bond amount, which cash fees shall be deposited in the Liberty National Bank and Trust Company of Oklahoma City and carried under the account name of “O’Neal Bail Bonds”. Checks drawn on said account shall be honored when signed by first party singly, or by second party and countersigned by first party.

“3. Of said funds on deposit to the account of O’Neal Bail Bonds, 20% shall at all times be left in escrow in said account, or, as the parties shall agree, placed in a savings account in either the Liberty National Bank and Trust Company or the First National Bank and Trust Company, to insure against losses from bond forfeitures.

“4. Of the remaining 80%, second party shall receive 40% as and for salary compensation, and first party shall receive 40%, it being understood and agreed that the properties used on said bonds are the properties of first party and are held in trust by second party.

“5. In the event of bond forfeiture, same shall be paid from monies held in escrow and/or savings account; however, if sufficient monies are not available, second party shall be liable therefor; provided, however, that if at any time any forfeitures exceed the amount held in escrow in checking or savings account, then and in that event, the future escrow percentage shall be increased to 40% until such deficit has been covered and until the sum of $2500.00 be held in escrow over and above all forfeitures, and the parties shall be compensated commensurately with the increased escrow withheld.

“In witness whereof, the parties hereto have hereunto set their hands the day and year first above set forth.

/S/ Valdhe F. Pitman Valdhe F. Pitman Party of the First Part

“Witness:

/S/ Ruby Jewell Rodgers

/S/ E. W. O’Neal E. W. O’Neal

Party of the Second Part” (Emphasis Ours)

The Defendant was married to one Paula J. Wilde, sometime prior to September 3, 1963. This lady owned Lots 29 and 30 in Block 1, Bancroft Addition to Oklahoma City, Oklahoma. On August 21, 1963, the Defendant alone executed a Quit Claim Deed to E. W. O’Neal covering said Lots, which Deed was filed for record on August 21, 1963, in the office of the County Clerk of Oklahoma County.

On August 26, 1963, E. W. O’Neal executed a Bond in the Case of Oklahoma -vs-Freddie Garcia, No. 28808, in the District Court of Oklahoma County as surety for the Defendant in that case, and scheduled as security for said Bond, the above described Lots. The Defendant, Valdhe F. Pitman, was Attorney for Freddie Garcia.

On September 3, 1963, a Quit Claim Deed in favor of E. W. O’Neal was executed by Paula J. Wilde, one and the same person as Paula J. Pitman and her husband, Valdhe F. Pitman, which was filed for record in the office of the County Clerk on September 25, 1963.

O’Neal and his wife executed a Quit Claim Deed to the Defendant covering said property which bears the date of October 12, 1964. However, this Deed was not filed for record until January 15, 1965. In the meantime, and on January 4, 1965, the District Attorney of Oklahoma County filed an Application to Strengthen Bond, in State -vs- Garcia, and this application was heard before Judge William L. Fogg, on February 2, 1965.

The Defendant was called as a witness in the hearing on said Application and testified in part as follows:

“The Court: Now, the next one that I have listed there has to do with the forfeiture, 61 — J; turn on through there, Mr. Pitman; 61-K, 61-1, 61-M, down to No. 88, and that is Lot 29 and 30, Block 1, Bancroft Addition, to Oklahoma City.

“A Which one is it you want to know about ?

“The Court: 88, Exhibit No. 88, it’s on down past those.

“A Oh, yes, State’s Exhibit 88. You don’t want to know anything about these you just read off?

“The Court: Sir ?

“A You didn’t want to know anything about these here, the judgments and the like?

“The Court: no.

“A Okay, State’s Exhibit 88. Now, what was your question?

“The Court: What do you know about that property?

“A That is one of the pieces of property, Your Honor, that I signed over to Mr. O’Neal, without any deed or anything for rehirn. It was his property to do with as he saw fit, any way he saw fit. That just happens to be a duplex apartment house and five room house on both of those.

“The Court: So, based on your knowledge, did Mr. O’Neal own that property at the time that bond was given ?

“A Yes, he certainly did.”

(Emphasis ours)

The State alleges that the testimony underlined above by us was false and untrue and known by the Defendant to be false and untrue.and was perjury.

In his brief the Defendant sets forth eleven Propositions of Error.

Under Proposition One, the Defendant urges that the Trial Court erred in overruling the Defendant’s Demurrer to the Evidence of the State because it was not proved that the testimony given by the Defendant in the hearing on the Application to Strengthen Bonds was given under oath.

The testimony of Pitman apparently covered some 42 pages of typed transcript, from pages 28 through 70, and the statements upon which the charge of perjury was based were found on pages 49 and 50 of said transcript. The District Attorney offered in evidence the entire transcript, both direct and cross-examination, redirect and recross of the Defendant, and the Defendant objected to the admission of the entire transcribed testimony.

When the Court Reporter who transcribed the testimony was put on the witness stand, the Defendant’s Attorneys entered into the following stipulations:

“Mr. Spivey: Not the whole record. We waive any identification now; now as to what they want to offer, we’ll get to that when they offer it.

“The Court: Very well, you waive identification—

“Mr. Spivey: That’s right.

“The Court: (continuing) — of the transcribed testimony of the witness, Valdhe Pitman.

“Mr. Spivey: Yes, sir.

“Mr. McKinney: May I ask you this: are you stipulating that this occurred in Oklahoma County, State of Oklahoma, in District Court?

“Mr. Spivey: In District Court.

“Mr. McKinney: Before Judge Fogg?

“Mr. Spivey: Before Judge Fogg. We will stipulate to that.”

It appears to us that the defendant’s attorney was stipulating that his client had on the 2nd day of February, 1965, before Judge Fogg given certain testimony. Testimony refers to a sworn statement given as evidence in a legal proceeding.

“ ‘Testimony’ is a statement made under oath in legal proceedings or evidence of witness given under oath.” Patterson v. State, 122 Ohio St. 96, 171 N.E. 26, 27.

“ ‘Testimony’ embraces only the declarations of witnesses made under oath or affirmation.” Wyoming Loan and Trust Company v. W. H. Holliday Company, 3 Wyo. 386, 24 P. 193.

By stipulating that the Defendant did testify, the Defendant stipulated that the evidence was given under oath and cannot now be heard to complain that the State failed to prove that the testimony was in fact under oath.

The Defendant’s Second Proposition deals with the fact that the jury which tried the cause was chosen from a group of thirty-six (36) jurors drawn from the entire panel by the Presiding Judge of the multi-divisioned Court, which drawing was made outside the presence of the Defendant or his Attorneys and from which drawing they were actually excluded by the Court Clerk on instructions from the Presiding Judge. There is no contention that the names were drawn other than by the usual selection procedures in such cases.

The Defendant cites no authority to support his position and we think that the case of Fray v. State, 46 Okl.Cr. 260, 285 P. 142, adequately dispenses with this question. In that case we said:

“The district court of Tulsa county has four judges. Section 3083, Comp.Stat. 1921. All or any number of them may hold court at the same time. Section 3089, Comp.Stat.1921. One hundred and seven jurors of the panel selected for the term were qualified and in attendance upon the entire court composed of four judges. Sixty-one of this number were in attendance upon that division of the court presided over by the trial judge in this case. The others were either serving on juries in other divisions of the court or were in attendance upon some other divisions engaged in impaneling a jury. It is not contended that the sixty-one jurors assigned to this division were improperly selected or were disqualified by reason of the manner of their selection, but that, under section 2645, supra, the names of the persons impaneled to serve as jurors in the trial were not drawn from the entire venire. If this section is mandatory and was so construed, then only one Judge could avail himself of the services of a regular venire, and the other judges would have to impanel juries from open or special venires. See Johnson v. State, 16 Okl.Cr. 428, 183 P. 926. This certainly is not the meaning of the statute involved. In a county where more than one district court is sitting, the trial judge may impanel a jury from such part of the regular venire as is assigned to the division over which he presides. The purpose of the statute is to prevent a hand-picked jury by arbitrarily selecting a portion of the venire from which to impanel a jury to the exclusion of other members of the venire. It is not claimed that this was done or attempted to be done in this instance. The right of an accused in the selection of a jury is one of exclusion of incompetent, biased, or prejudiced jurors, and not the inclusion of any particular persons. The excusing of members of the regular panel or a dividing of the panel for the convenience of the court, where more than one judge is sitting, is within the sound discretion of the court. The exercise of such discretion will not be disturbed, unless an abuse is shown. Mathews v. State, 19 Okl.Cr. 153, 198 P. 112.”

We find that the procedure used in the District Court of Oklahoma County for empaneling jurors is not an abuse of discretion and did not deprive the Defendant of any due process of law.

In his third Proposition, the Defendant states that the Trial Court erred in overruling his Motion to Quash the Jury Panel, for the reason that the Order of the Presiding Judge of the District Court of Oklahoma County ordering certain jurors to report back for a third week of jury service was in violation of fundamental procedural due process.

The jury panel selected for the jury session at which the Defendant was tried, reported for duty on October 2, 1967, and would normally have terminated their service on October IS, 1967. The Trial Court ordered that the jury be held over for an extra six (6) days to complete the jury business of the term of Court and the Defendant’s case was set for trial and tried on October 18, 1967.

38 Okla.Stat. Sec. 21, reads in part as follows:

“ * * * No juror shall be allowed to serve more than two weeks at one term, unless at the end of such period, he is upon a panel engaged in the consideration of a case in which event he may be excused when such case is terminated; provided, that if the Judge is of the opinion that the jury business of a term of court may be concluded within six (6) days, he may require a jury, or a juror, to remain until the termination of said jury service, by entering an order to that effect upon the court’s journal, and this provision shall apply to the District, Superior, Common Pleas and County Courts.”

This Section has been amended since the trial of this case but the above wording was in effect at the time.

The Defendant contends that “term of Court” means the January and July terms of Court and not the two week jury term held in October of 1967. He further contends that the Court would hold additional jury sessions in November and December of 1967, and the Court was therefore not warranted in holding the jury an additional six (6) days because the jury business of the term of Court could go over until either the November or December dockets. Under this view, a jury could be held over only in the December session of the July term if more than one (1) jury docket was held during that term of Court. To agree with this view could very possibly hamper the administration of justice in our metropolitan areas where as many as six (6) jury dockets in one term of Court are held. Five (5) dockets would be limited to two (2) weeks, and one (1) docket to three (3) weeks.

We find that this argument is without merit. The term “term of Court” as used in the above context means the particular jury session for which a petit juror is called and not the January and July terms formerly set up by 20 O.S.1961, § 95. The identical question has been decided in Satchell v. State, Okl.Cr., 443 P.2d 125. In that case we held as follows:

“A challenge to the panel can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury or on the intentional omission of the sheriff to summon one or more of the jurors drawn from which the defendant has suffered material prejudice.”

In this case we find that the Defendant was not materially prejudiced nor is the holding over of a jury for an additional six (6) days, even though the same District Court was to hold two (2) additional jury dockets during that term, a material departure from the forms prescribed by law.

In Proposition Four of Defendant’s Brief, the Defendant contends that the State did not prove the necessary criminal intent or mens rea. He states that testimony to a fact which is not true but believed to be true by the one testifying is not perjury. This is no doubt true. However, it would be difficult to reconcile the obvious intent of the Memorandum Agreement between the Defendant and O’Neal, dated July 31,1963, wherein it states that:

“ * * * it being understood and agreed that the properties used on said bonds are the properties of First party and are held in trust by Second Party.”

With defendant’s testimony to the following effect:

“The Court: What do you know about that property ?”

“A That is one of the pieces of property, Your Honor, that I signed over to Mr. O’Neal without any Deed or anything for return. It was his property to do with as he saw fit, anyway he saw fit. That just happens to be a duplex apartment house and five room house on both of those.”

The sequence of events should be remembered at this point:

July 31, 1963, Memorandum Agreement between Defendant and O’Neal:

August 21, 1963, Deed from Defendant by himself to O’Neal (at this point title to the property was vested in Paula J. Wilde, Pitman’s then wife) ;

August 26, 1963, (filed August 27, 1963) Bond made by O’Neal for Freddie Garcia, Defendant’s Attorney wherein property in question was scheduled.

September 3, 1963 (filed September 25, 1963) Deed from Paula Jo Wilde (Pit-man) and Mr. Valdhe F. Pitman to E. W. O’Neal;

October 12, 1964, Deed from O’Neal and wife, to Pitman, alone;

January 4, 1965, Application to Strengthen Bond in State — vs—Garcia;

January 15, 1965, filing of record of Deed from O’Neal to Pitman, dated October 12, 1964;

February 2, 1965, Hearing on Application to Strengthen Bond before Judge Fogg.

The Defendant, a lawyer, could not have been simply mistaken as to the intent or the effect of the Memorandum Agreement when he testified that he had signed over the property to O’Neal “without any Deed or anything in return.” Title to the property was not in the Defendant when he attempted to deed it to O’Neal. It was not in the Defendant or O’Neal when O’Neal made Garcia’s bond. Under the terms of the Memorandum Agreement the property was not O’Neals, “to do with as he saw fit, anyway he saw fit.” In point of fact, O’Neal reconveyed the property to Pitman before the Application to Strengthen Bond in the Garcia case was filed.

Under this set of facts we hold that the Defendant’s Proposition Four is without basis.

In Proposition Five the Defendant complains that he was not afforded a fair and speedy trial as required by the Constitution of the State of Oklahoma. On July 13, 1965, the District Attorney of Oklahoma County filed three Informations against the Defendant, two for Subornation of Perjury and the present perjury charge. One of the Subornation of Perjury charges was tried to a jury on May 16, 1966, and again on October 18, 1966, and both trials resulted in hung juries. The present case was tried on October 18, 1967. The record does not indicate that there was any demand that the case be tried at an earlier date.

Okl.Const. Art. 2, Sec. 6 provides as follows:

“The Courts of justice of this State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.”

Sec. 20 of the same article provides in part as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: * * *”

22 Okl.Stat. Sec. 812, provides in full as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The above Statutory provision is a legislative construction of the Oklahoma Constitutional requirements of a speedy trial. This Statute has been construed many times by this Court. In Brummitt v. Higgins, Judge, 80 Okl.Cr. 183, 157 P.2d 922, this Court held as follows:

“It has been held that where the defendant is on bail the presumption is that the delay was caused by or with the consent of the defendant and the record must affirmatively show that he demanded a trial or resisted the continuance of the case. However, if the defendant is not on bail, the law makes the demand for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause. State ex rel. Davis v. Bayless, 38 Okl.Cr. 129, 259 P. 606; Francis v. State, 26 Okl.Cr. 82, 221 P. 785; Bowes v. State, 7 Okl.Cr. 316, 126 P. 580.”

In the case of Johnson v. District Court of Muskogee County, Okl.Cr., 413 P. 2d 914, we held:

“We have repeatedly held under 22 Okl. St.Ann. § 812, that person on bail and not in custody by virtue of a charge pending against him, must affirmatively show that he demanded a trial and resisted the continuance of the case from term to term, but when he has not demanded the trial and resisted continuances, he is not entitled to a dismissal of the charge. See Harris, et al., v. Ogden, District Judge, 44 Okl.Cr. 418, 281 P. 316; Brooks v. District Court of Oklahoma County, 408 P.2d 562.”

The only indication in the record that the Defendant complained of any delay in the trial is an Amended Motion to Dismiss which was not filed until October 11, 1967. This is not sufficient under the above cases.

The Defendant complained that the Court committed fundamental and prejudicial error in permitting the witness, Curtis P. Harris, District Attorney, of Oklahoma County, to testify against the Defendant without having been first duly sworn as a witness; when Mr. Harris took the stand the Judge made the following comment:

“The Court: Mr. Harris, you are a member of the Bar, and it’s not my policy to swear lawyers who testify in this Court. I expect them to testify on their oath as members of the Bar and I consider that to be a higher oath than the oath of a witness; therefore you’ll be excused from being sworn. You may take the stand.”

No objection to this procedure was made by the Defendant at the time and it is now raised for the first time.

The Defendant is also an Attorney and testified in his own behalf. The following exchange was had upon the Defendant’s assuming the stand:

“The Court: Mr. Pitman, you are a member of the Bar, and I am going to accord you the same privilege of testifying without being sworn as a witness unless you request to be sworn.” “Mr. Pitman: No, Sir, I am a member of the Bar, and I realize those duties.”

If anybody could complain in this instance it would be the State because it seems that the Judge places the testimony of Attorneys on a higher plane than other mortals and the Defendant is a lawyer. If the jury was prejudiced it was prejudiced in favor of this Defendant by this fact.

Regardless, we said in Keeney v. State, 53 Okl.Cr. 1, 6 P.2d 833, Section two of the syllabus:

“The right to have a witness sworn before testifying may be waived by a defendant and is waived where a defendant having knowledge that the witness has not been sworn, makes no objection until after verdict.”

This case has been cited with approval by the United States Court of Appeals for the District of Columbia in Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939).

We hold that the Defendant has waived his objection to this irregularity by not objecting at the time of trial.

As Proposition Seven of Defendant’s Brief, he alleges that no proof was made that the Defendant testified to the statement alleged in the Information as false. This is apparently based on the assumption that the State failed to prove that the Defendant did in fact testify in Case No. 28808, in the District Court of Oklahoma County on February 2, 1965. The State produced the transcript of such hearing and the Defendant’s Attorney stipulated that the Court Reporter did make the record and also waived any identification of the transcribed testimony of the Defendant.

The Defendant cannot now be heard to complain that the record of his earlier testimony was not accurately identified when such identification was waived at the trial.

The Defendant’s Proposition Eight states that the Court erred in failing to sustain the Defendant’s Demurrer to the evidence since the State offered only an unsworn statement to prove perjury and the falsity of a statement under oath cannot be proved by an unsworn statement of the Defendant and in support thereof cites Shoemaker v. State, 29 Okl.Cr. 184, 233 P. 489. In that case the Defendant was accused of perjury having testified in a Preliminary Hearing that a certain person had killed another while later at the trial of the accused person, she refused to identify the defendant as the killer. The State proved her contradictory testimony but failed to prove which testimony was false. We correctly held in that case that the general rule is that proof of contradictory statements under oath by an accused is not sufficient to convict of perjury. Oath nullifies oath, and it is incumbent on the State to prove the falsity of a statement on which the prosecution is based; but in such case the falsity may be proved by the evidence of one witness, or by circumstantial evidence. It may not be proved by additional unsworn statements of accused.

The Defendant would have us treat the Memorandum Agreement above referred to as an additional unsworn statement by the Defendant. We reject this contention. This is part of the extrinsic evidence required in the Shoemaker case and is independent proof of the falsity of the testimony that the Defendant made before Judge Fogg. Additional extrinsic evidence is the Deed from O’Neal back to Pitman in October, 1964.

As Proposition Nine, the Defendant alleges that the testimony he gave before Judge Fogg was not material to the issues involved in the hearing.

It will be recalled that the testimony was given in a hearing to Strengthen the Bond in the Garcia case and the property scheduled in the Bond had formerly belonged to Pitman’s wife and was at the time of the hearing in Pitman’s name. There is no showing in the record that Judge Fogg knew that the property had been reconveyed to the Defendant by the Deed of October 12, 1964, nor did he know that the Deed had not been recorded until after the Application to Strengthen Bond had been made, but before the hearing was held. In deciding such a Proposition it is required that we assume that knowledge of these facts would have changed the Judge’s ruling.

This Court said in Miles v. State, Okl.Cr., 268 P.2d 290 :

“In People v. Pustau, 39 Cal.App.2d 407, 103 P.2d 224, 227, the California Court said:

‘The test of materiality is met when it can be said that the testimony could have properly influenced the tribunal before which the case was being heard, upon the issues involved.’

“The false testimony herein was pertinent to the main issue though it did not bear directly on the main issue. In Coleman v. State, 6 Okl.Cr. 252, 118 P. 594, this court said on the point of materiality:

‘(a) In order to constitute perjury, it is not necessary that the matter sworn to should be directly and immediately material, but it is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that it is material by giving weight or probability to or detracting from testimony of a witness to such material fact. ‘(b) Perjury may be assigned upon false statements affecting the creditability of a witness whose testimony was material to the main issue. For facts sustaining a charge for perjury under this head, see opinion.

‘(c) Upon a trial for perjury, the degree of the materiality of the testimony upon which it is based is of no importance. Any false statement made by a witness which detracts from or adds weight and force to the testimony of any witness upon matters that are directly material thereby becomes material itself and constitutes perjury.’

“To the same effect is White v. State, 48 Okl.Cr. 387, 292 P. 369. On this point also see People v. Guasti, 110 Cal.App.2d 456, 243 P.2d 59.”

We feel that the Defendant’s testimony was in fact material to this hearing.

The Defendant complains in Proposition Ten that the Trial Court erred in failing to instruct the jury as to the purpose of the State’s introduction of other offenses committed by the Defendant. This question is raised for the first time in the Defendant’s Brief, and was not included in the Motion for new trial.

The Defendant’s first witness was a fellow attorney, who testified that he had always found the Defendant to be honest and trustworthy and that his reputation in the community for truth and veracity was good. This, of course, puts the Defendant’s good character at issue and the State can cross-examine the character witness or present witnesses of its own to refute character witnesses’ testimony. Moore v. State, Okl.Cr., 374 P.2d 630. In cross-examining the Defendant, the State brought out the fact that the Defendant had been convicted of driving while under the influence of intoxicating liquors, and had been divorced on the grounds of adultery. It is better and safer practice where evidence of good character of the Defendant has been introduced to instruct the jury as to the same. See Morris v. Territory, 1 Okl.Cr. 617, 99 P. 760, 101 P. 111. However, we held in Vester v. State, 76 Okl.Cr. 235, 136 P.2d 205 as follows:

“Defendant complains that the court did not instruct the jury upon the question of good character. A number of witnesses testified as to the good character of the defendant. If defendant had requested the giving or had presented a written instruction to this effect, it would have been proper to give the same. It is not revealed that any such written request was made. Defendant cites only the case of Morris v. Territory, 1 Okl.Cr. 617, 99 P. 760, 774, 101 P. 111. In that case a written requested instruction was presented. The same was denied and the case was affirmed. In the opinion, by Presiding Judge Furman, the court said: ‘The evidence of the character of the defendant, both for and against him, was before the jury. They were correctly instructed that the presumption of innocence and the doctrine of reasonable doubt were applicable to all of the evidence in the case.

It would have been better for the court to have given an instruction upon character, embodying the views expressed by the Supreme Court of the United States in White’s case (White v. United States, 164 U.S. 100, 17 S.Ct. 38, 41 L.Ed. 365), hereinbefore quoted and approved. In some cases, it might be reversible error to fail to give such an instruction; but our statute requires us to construe laws liberally and in the furtherance of justice, and forbids us from reversing a conviction upon a technical error or an exception that does not affect the substantial rights of the defendant. In this case we do not believe that an intelligent and honest jury could be found, who, with due regard for their oaths, and the testimony and the law, could ever come to any other conclusion than that the defendant was guilty of murder. Under the statute, above quoted, and after a consideration of the entire record, we are constrained to hold that in this case reversible error was not committed by failure of the court to instruct the jury upon the question of character.’

“In the annotation in Oklahoma Statutes Annotated, 1941, Title 22, Section 831, note 309, in quoting the case of Lumpkin v. State, 5 Okl.Cr. 488, 115 P. 478, it is said: ‘Under subdivision 5 of this section, and section 856 of this title, the judge is required only to give and charge such matters of law as he thinks necessary for information of the jury in rendering their verdict, which instructions must be settled after the introduction of evidence is concluded, and if counsel for accused desire additional instruction, they must reduce such instruction to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request, unless the Criminal Court of Appeals is of the opinion in the light of the entire record and instructions that, because of failure to instruct upon some material question of law, accused has been deprived of a substantial right.’ Lee v. State, 67 Okl.Cr. 283, 94 P.2d 5; Green v. State, 70 Okl.Cr. 228, 105 P.2d 795; Pulliam v. State, 61 Okl.Cr. 18, 65 P.2d 426; not yet reported; Short v. State, 74 Okl.Cr. 272, 125 P.2d 227; Adams v. State, 62 Okl.Cr. 167,70 P.2d 821.

“In the instant case, the court instructed the jury upon the question of reasonable doubt, and upon the presumption of innocence, and under the facts, as above stated, we are of the opinion that it was not error for the court to fail to give an instruction as to the good character of the defendant, when the same was not requested by counsel for defendant.”

In this case, we do not feel that the failure to give an instruction on this point is reversible error.

The Defendant’s last Proposition states that during the trial and closing arguments, the State made prejudicial statements which substantially affected the Defendant’s right to a fair trial.

We have read the entire Casemade, including the closing arguments of counsel and do not agree with Defendant’s contention. As a matter of fact, the argument of defense in closing the case was at points somewhat beyond the bounds of propriety. Although this case was tried only one time the Defendant’s lawyer stated to the jury that they were the third jury that had tried this case and that they had never convicted him. He also stated that the minute the jury convicted the Defendant he would be automatically disbarred for the rest of his life from the practice of law. In spite of these statements the jury found the Defendant guilty.

In a separate Motion to Dismiss the Defendant raises to issue the doctrines of collateral estoppel and res judicata and in support argues that the fact question in this case was decided in O’Neal v. State, Okl.Cr., 468 P.2d 59. In that case E. W. O’Neal was convicted in the District Court of Oklahoma County of perjury by falsely swearing under oath that he was the owner of Block 3, Artesian Springs Second Addition to Oklahoma City, State of Oklahoma. This Court at first affirmed this conviction but on rehearing withdrew the original opinion and promulgated the opinion found at the above citation.

While it may be true that the same parties need not be involved to invoke the doctrine of collateral estoppel it is surely required that the fact question be the same. In the O’Neal case his false statement was alleged to have been made in a justification on a bond made on January 8, 1964, wherein the above described property was scheduled. In this case, the defendant’s alleged false statement was to the effect that O’Neal owned entirely different land and that it was his to do with as he wished with nothing in return. The fact question in this case was not litigated in the O’Neal case and we, therefore, reject this argument.

Judgment affirmed.

MILLER, Special Judge, concurs. BRETT, P. J., dissents.