BAREFOOT, J.
Defendant was jointly charged with Morris Symonds and Roy Rankin, with the crime of “directing a riot,” in Tulsa county, on July 9, 1937; was granted a severance, tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.
This is a companion case of Morris Symonds v. State, 66 Okla. Cr. 49, 89 P. 2d 970, this day decided by this court. In the opinion in that case the facts here involved are fully presented. The errors assigned are practically the same and it therefore becomes unnecessary to review them.
The evidence which connected defendant with the riot in Tulsa on the night of July 9, 1937, was as follows:
Y. T. Campbell testified that he was a motorcycle officer in the city of Tulsa. That on the night of the riot he saw defendant at Chapman’s grocery store while the riot was in progress, but did not see him take any active part therein.
J. L. Burkhead testified that he was employed as a special officer at the Ketchum Hotel. That he saw defendant there at the time of the riot. He testified as follows:
“Q. Tell what happened and what was said, in regard to your gun, please, sir? A. Well, Roberts just asked me to surrender my gun — wanted to take it, and I says, ‘No, that gun don’t leave my holster, only in case of necessity’. I says, ‘It will be all right just like it is’, and, I says, ‘As far as that gun is concerned, there will be no gun play around here.’ Q. You kept the gun? A. Yes, sir. Q. What was the next thing you saw Roberts do? A. He left me and went towards the entrance of the stairway, leading upstairs. Q. The stairway leading upstairs? A. Yes, sir. Q. You don’t know whether he went upstairs, or not? A. No, sir, I don’t. There were too many people around.”
Henry Ketchum testified he was the owner of the Ketchum Hotel.
As to the conduct of defendant, he said:
“Q. What did you see and hear ? A. I was on the fourth floor, and on coming down, I heard a lot of voices and it sounded like as a crowd, and I came down the stairs, to investigate, and when I got on the second floor, I should say there was about 50 or 75 men in the hotel. I stood there and watched them coming up until they got up — about 250 men. I knew they were having labor trouble, yet I did not know whether these men were craftsmen — I did not know who they were. I thought, maybe they were there to chari-vari a bridal couple, and I stood amongst them, and finally Mr. Roberts appeared on the scene, and in the middle of the mezzanine floor, there was a lot of lumber being used— Q. Was that on the mezzanine floor? A. Yes, sir, mezzanine floor — second floor, and this lumber was used by the Long-Bell Lumber Company in putting in our ducts for the air conditioning system. Q. You were installing it, at that time? A. Yes, sir, the Long-Bell Lumber Company was
under contract— Q. All right. A. —and Mr. Roberts, when he came up there, this lumber was covered with canvas, and he throwed the canvas back and gave them some sticks about lxl, and he was passing them out to the crowd. I was about 50 feet away and could not hear what he said, but he began giving these sticks — gave them to the men pointing to the celotex duct, and these men grabbed these sticks and began punching out all these holes, and I then called the police station, and by the time I got through calling them, they had proceeded up to the second, third, fourth, fifth, sixth and seventh floor punching out every piece of duct work in the building.”
Roy Hyatt, chief of police of Tulsa, testified he was present when the Jones grocery store was torn up. With reference to defendant, he said:
“Q. Do you know Robert Roberts, the defendant in this case? A. Yes, sir. Q. Did you see him there at Jones’ place that night? A. I did. Q. Did you have any conversation with him there that night? A. I did. Q. State to the court and jury what the conversation was, as nearly as you remember it, at this time ? A. I talked with Bob with reference to the actions that had gone on — told him and some of the others that were there that they were absolutely not going to tear up this man’s property. I said, ‘Now, you have done enough damage in Tulsa and we, as officers, are not going to stand for any more of this destruction of property.’ At that time, Bob said, ‘That is right,’ and there were some other boys there, and Bob says, ‘Boys, we have put enough heat on Roy tonight,’ and, he said, ‘Roy, will you take your men and leave, if we leave?’ Q. Who said that? A. Bob Roberts. Q. All right. A. And he said, ‘all right,’ and he said, ‘Boys, we will go to Newblock Park and disperse,’ and they left, at that time, and I took my boys and came back to town.”
On cross-examination, he testified as follows:
“Q. Did Bob say this, or this in substance to you: That if you would get your men to leave, he could, probably, get his men to leave, without any trouble? A. No. He says to me, ‘Will you take your men and leave, if I take mine and leave? Q. After he talked to you, he had to go back in the middle of this mob, didn’t he? A. Yes, sir. Q. And talk to the men in there? A. Yes, sir. Q. Then, they left,
after that? A. Yes. Q. They didn’t leave, until after that time? A. No; they didn’t leave until after he had talked to these other men.”
Ralph Hyde, a police officer, testified as follows:
“Q. Do you know Bob Roberts, the defendant in this case, when you see him? A. Yes, sir. Q. Did you see him out there at Chapman’s store that night? A. I did. Q. Just what was he doing, as far as you know, out there that night? A. When the difficulty first started, they were on the east end of the store, and we got them to quit throwing, and Roberts and another fellow went to the west end of the store and started it all over again. Q. Started what? A. Throwing rocks and bottles through the glass. Q. Was there glass windows there? A. Yes, sir. Q. And they got to throwing rocks and bottles through these windows? A. Yes, sir. Q. Did you see any others there that you know? A. No, sir.”
Morris Symonds, a joint defendant, testified he saw defendant at the Ketchum Hotel at the time the riot was in progress.
Defendant, testifying in his own behalf, said: That he had lived in Tulsa since 1912. That he was a moving picture machine operator. That on the night of July 9, 1937, someone, whom he did not know, called him over the phone, asking him to come to a meeting at the courthouse, “that there was a bunch of men that was in a little bit of a bad humor.” That he got someone to relieve him about 8:30, and he started to the courthouse, and in passing the Ketchum hotel, he saw a crowd of about 250 men there. That he went inside of the hotel and talked to the state’s witness Jim Burkhead. He said:
“Q. Just tell the jury and court the substance of the conversation you had with Jim Burkhead? A. I thought, possibly, he was going to try to force these men out with his gun, in as much as he was an officer, and I advised him to stand there and be quiet and not make any attempt to use a gun in any way, and I would see if I could get the men to leave,”
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BAREFOOT, J.
Defendant was jointly charged with Morris Symonds and Roy Rankin, with the crime of “directing a riot,” in Tulsa county, on July 9, 1937; was granted a severance, tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.
This is a companion case of Morris Symonds v. State, 66 Okla. Cr. 49, 89 P. 2d 970, this day decided by this court. In the opinion in that case the facts here involved are fully presented. The errors assigned are practically the same and it therefore becomes unnecessary to review them.
The evidence which connected defendant with the riot in Tulsa on the night of July 9, 1937, was as follows:
Y. T. Campbell testified that he was a motorcycle officer in the city of Tulsa. That on the night of the riot he saw defendant at Chapman’s grocery store while the riot was in progress, but did not see him take any active part therein.
J. L. Burkhead testified that he was employed as a special officer at the Ketchum Hotel. That he saw defendant there at the time of the riot. He testified as follows:
“Q. Tell what happened and what was said, in regard to your gun, please, sir? A. Well, Roberts just asked me to surrender my gun — wanted to take it, and I says, ‘No, that gun don’t leave my holster, only in case of necessity’. I says, ‘It will be all right just like it is’, and, I says, ‘As far as that gun is concerned, there will be no gun play around here.’ Q. You kept the gun? A. Yes, sir. Q. What was the next thing you saw Roberts do? A. He left me and went towards the entrance of the stairway, leading upstairs. Q. The stairway leading upstairs? A. Yes, sir. Q. You don’t know whether he went upstairs, or not? A. No, sir, I don’t. There were too many people around.”
Henry Ketchum testified he was the owner of the Ketchum Hotel.
As to the conduct of defendant, he said:
“Q. What did you see and hear ? A. I was on the fourth floor, and on coming down, I heard a lot of voices and it sounded like as a crowd, and I came down the stairs, to investigate, and when I got on the second floor, I should say there was about 50 or 75 men in the hotel. I stood there and watched them coming up until they got up — about 250 men. I knew they were having labor trouble, yet I did not know whether these men were craftsmen — I did not know who they were. I thought, maybe they were there to chari-vari a bridal couple, and I stood amongst them, and finally Mr. Roberts appeared on the scene, and in the middle of the mezzanine floor, there was a lot of lumber being used— Q. Was that on the mezzanine floor? A. Yes, sir, mezzanine floor — second floor, and this lumber was used by the Long-Bell Lumber Company in putting in our ducts for the air conditioning system. Q. You were installing it, at that time? A. Yes, sir, the Long-Bell Lumber Company was
under contract— Q. All right. A. —and Mr. Roberts, when he came up there, this lumber was covered with canvas, and he throwed the canvas back and gave them some sticks about lxl, and he was passing them out to the crowd. I was about 50 feet away and could not hear what he said, but he began giving these sticks — gave them to the men pointing to the celotex duct, and these men grabbed these sticks and began punching out all these holes, and I then called the police station, and by the time I got through calling them, they had proceeded up to the second, third, fourth, fifth, sixth and seventh floor punching out every piece of duct work in the building.”
Roy Hyatt, chief of police of Tulsa, testified he was present when the Jones grocery store was torn up. With reference to defendant, he said:
“Q. Do you know Robert Roberts, the defendant in this case? A. Yes, sir. Q. Did you see him there at Jones’ place that night? A. I did. Q. Did you have any conversation with him there that night? A. I did. Q. State to the court and jury what the conversation was, as nearly as you remember it, at this time ? A. I talked with Bob with reference to the actions that had gone on — told him and some of the others that were there that they were absolutely not going to tear up this man’s property. I said, ‘Now, you have done enough damage in Tulsa and we, as officers, are not going to stand for any more of this destruction of property.’ At that time, Bob said, ‘That is right,’ and there were some other boys there, and Bob says, ‘Boys, we have put enough heat on Roy tonight,’ and, he said, ‘Roy, will you take your men and leave, if we leave?’ Q. Who said that? A. Bob Roberts. Q. All right. A. And he said, ‘all right,’ and he said, ‘Boys, we will go to Newblock Park and disperse,’ and they left, at that time, and I took my boys and came back to town.”
On cross-examination, he testified as follows:
“Q. Did Bob say this, or this in substance to you: That if you would get your men to leave, he could, probably, get his men to leave, without any trouble? A. No. He says to me, ‘Will you take your men and leave, if I take mine and leave? Q. After he talked to you, he had to go back in the middle of this mob, didn’t he? A. Yes, sir. Q. And talk to the men in there? A. Yes, sir. Q. Then, they left,
after that? A. Yes. Q. They didn’t leave, until after that time? A. No; they didn’t leave until after he had talked to these other men.”
Ralph Hyde, a police officer, testified as follows:
“Q. Do you know Bob Roberts, the defendant in this case, when you see him? A. Yes, sir. Q. Did you see him out there at Chapman’s store that night? A. I did. Q. Just what was he doing, as far as you know, out there that night? A. When the difficulty first started, they were on the east end of the store, and we got them to quit throwing, and Roberts and another fellow went to the west end of the store and started it all over again. Q. Started what? A. Throwing rocks and bottles through the glass. Q. Was there glass windows there? A. Yes, sir. Q. And they got to throwing rocks and bottles through these windows? A. Yes, sir. Q. Did you see any others there that you know? A. No, sir.”
Morris Symonds, a joint defendant, testified he saw defendant at the Ketchum Hotel at the time the riot was in progress.
Defendant, testifying in his own behalf, said: That he had lived in Tulsa since 1912. That he was a moving picture machine operator. That on the night of July 9, 1937, someone, whom he did not know, called him over the phone, asking him to come to a meeting at the courthouse, “that there was a bunch of men that was in a little bit of a bad humor.” That he got someone to relieve him about 8:30, and he started to the courthouse, and in passing the Ketchum hotel, he saw a crowd of about 250 men there. That he went inside of the hotel and talked to the state’s witness Jim Burkhead. He said:
“Q. Just tell the jury and court the substance of the conversation you had with Jim Burkhead? A. I thought, possibly, he was going to try to force these men out with his gun, in as much as he was an officer, and I advised him to stand there and be quiet and not make any attempt to use a gun in any way, and I would see if I could get the men to leave,”
He further testified that he went to the second floor where damage was being done by the men, and tried to get them to quit. He denied handing any of them anything, or directing them, as testified by the state’s witness, Ketch-urn. He testified further that he did not go to the Long Bell Lumber Company, Chapman’s store, or the Roxie Theatre, but that he did go to Jones’ Grocery, and that he saw Roy Hyatt, chief of police, and had a conversation with him, as follows:
“Q. Tell the jury what you told Roy? A. I told Roy it would be hard for me to get the men away as long as the policemen were there, but if he would take his men and leave, I felt sure I could talk to these men and get them to leave, which they did. Q. Did you know the fellows in that gang? A. No, sir. Q. What did you have to do, after you had the conversation with Roy? A. Just talked to them and explained that ‘you boys have done enough damage — let’s go on and leave — let’s forget the matter and leave,’ and they did.”
He further testified that he did not personally know any of the persons who were engaged in the riot.
From the above statement of the testimony, it will be seen there is a direct conflict between the evidence of the state and the defendant. As stated in the Symonds Case, this was a question for the jury to pass upon, and they did so and returned a verdict of guilty. Under the law, this court would not be justified in setting aside that verdict on the grounds it was insufficient. The jury did not believe defendant’s testimony. If they had they would have acquitted him.
The legal questions raised in defendant’s brief are practically the same as raised in the Symonds Case. We have carefully re-examined the authorities cited in defendant’s brief, and we do not find any error which would justify a reversal of this case.
As to the judgment and sentence we are of the opinion that the same should be modified as in the Symonds Case,
and it is therefore ordered that the judgment and sentence in this case be modified from a term of five, years in the penitentiary, to a term of two years, and as thus modified the judgment of the district court of Tulsa county is affirmed.
DOYLE, P. J., and DAVENPORT, J., concur.