text:
    PERCY ELLIS v. STATE.
    No. A-7064.
    Opinion Filed Feb. 28, 1930.
    (287 Pac. 1067.)

      John L. Ward and L. O. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree, and was sentenced to serve a term of twelve years in the state penitentiary.

On the 10th day of December, 1927, the defendant was duly arraigned in the district court, waived the reading of the information, and entered his plea of not guilty. On December 12, 1927, defendant filed a demurrer to the information without having first obtained leave of court to withdraw his plea of not guilty and file the demurrer, which demurrer was by the court overruled and the defendant brought to trial on the 21st day of December, 1927.

The evidence of the state was that Robert Jackson, the deceased, was a peace officer in the city of Tulsa; that about 8 o’clock on the evening of the homicide Cora Johnson reported to him that the defendant had shot or shot at her sister, and requested the officer to investigate, which he did. Prior to the homicide, and late in the afternoon, the defendant, together with other negroes, were in defendant’s home and engaged in drinking whisky; that .defendant was living with a woman named Virgie May ^Johnson, but was not married to her; that the Johnson woman had returned to her home about 4 o’clock in the afternoon, at which time she and the defendant had a controversy over money she had given him to settle some debts; that the defendant drew his pistol and attempted to shoot, or did shoot at, the Johnson woman, and that she told the defendant she was going, to leave him, and had gone to secure a dray to remove her property and the property of her sister, Cora Johnson, who in the meantime had found the officer, told him about defendant being-drunk and shooting at her sister, and requested him to go with her to defendant’s house; that the deceased left the Johnson woman at the back of the house while he went around to the front; that as soon as he got around the corner of the house the shooting began; that the deceased had a flash-light, and, about the time he flashed the light on, the shooting began; that there was one report from a small gun and five shots from a larger gun. The gun used by the defendant .was a .32 caliber and that used . by the deceased a .38. The deceased received one wound ■just over the heart and the defendant six. His right arm was broken and split; he was wounded in the chest and the left arm.

The theory of the state was that the defendant fired one shot into the body of deceased; that as deceased fell he fired the shots that wounded the defendant. This theory of the state is supported by the fact that, the defendant’s right arm being broken and his left arm being wounded, he fired the shot that killed the deceased before the deceased fired at him. The evidence further discloses that the defendant had been drinking, and that he was in a drunken condition, and that just prior to the shooting he had been crying, and that one of his companions had tried to take his pistol away from him; that because the defendant had been drinking he was in a very bad mood and looking for trouble when the officer came to his home.

This evidence is sufficient to support a verdict of guilty of manslaughter in the first degree, and the judgment of twelve years’ imprisonment in the penitentiary is not excessive. It has been the universal holding of this court that a conviction will not be reversed when there is evidence to support the verdict of the jury. State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N.S.) 1013; Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405; Nichols v. State, 43 Okla. Cr. 52, 277 Pac. 263.

The defendant complains that the court erred in giving the following instruction:

“You are instructed that the deceased, as a peace officer, had a right to proceed to the place where the shooting took place, for the purpose of arresting the defendant without warrant, if the deceased had reasonable cause for believing the defendant to have committed the felony.”

Section 2471, C. O. S. 1921, provides:

“A peace officer may, without a warrant, arrest a person: * * * Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

The evidence clearly discloses that the defendant had been drinking, and that he had threatened to shoot the woman with whom he was living as her husband, and that he had shot his pistol and the sister had1 gone to the officer, told him about the shooting, and asked him to go there and arrest the defendant. The instructions given by the court, when taken altogether, fairly state the law as applicable to the facts in the case.

The defendant next contends that he did not have the fair and impartial trial guaranteed by the Constitution, for the reason that a number of negro attorneys had assisted in the prosecution of the case. The argument of the attorneys was not taken by the stenographer, and the court made no finding as to what was said by counsel in argument. This court has frequently held that, where remarks of counsel are not taken down, and where the court makes no finding as to what was said by counsel, the record presents no question for this court to consider. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Schaff v. Coyle, 121 Okla. 228, 249 Pac. 947; Whitenack v. State, 46 Okla. Cr......., 285 Pac. 990.

The fact that other attorneys than the county attorney were permitted to assist in the prosecution is not error. The record affirmatively shows that the assistant county attorney took the lead in all matters in this prosecution. La Coss v. State, 25 Okla. Cr. 130, 219 Pac. 416; McDowell v. State, 30 Okla. Cr. 187, 234 Pac. 1109.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    CLYDE MYERS v. STATE.
    No. A-7095.
    Opinion Filed Feb. 28, 1930.
    (287 Pac. 756.)

      C. A. Summers and W. P. Miller, for plaintiff in error.
    The Attorney General, for the State
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county on a charge of having unlawful possession of whisky mash fit for distillation, and his punishment fixed at a fine of $30 and confinement in the county jail for a period of thirty days.

The evidence of the state was that two deputy sheriffs visited the premises of the defendant having a search warrant; that they went to the house and served the warrant on the defendant; that one of the officers, hearing a noise, went into another room and found the wife of defendant with two one-half gallon jars in her hands and a quart jar sitting on a washstand; that these jars had had whisky in them, and that a dishpan with water in it smelled strongly of whisky; they found several empty jars in the house and a jug outside of the house that smelled like whisky; that they went out into the field about a quarter of a mile from the house and found two barrels of mash fit for distillation; that wagon tracks led back from the mash to defendant’s bam.

The defendant and his wife denied that there was any whisky in the house or had been any in the jars, and defendant denied that he was the owner of the mash or knew anything about it. The only question argued by the defendant in his brief is the sufficiency of the evidence.

The credibility of the witnesses and the weight to be given their testimony is exclusively for the jury, and the Sufficiency of the evidence to support the verdict is for the jury and. the trial court in the first instance. Where there is competent evidence in the record tending to support the verdict of the jury, and where there is a conflict in the evidence, this court never disturbs the verdict of the jury for insufficiency of the evidence. Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405; Surrell v. State, 43 Okla. Cr. 97, 277 Pac. 282; Adams v. State, 277 Pac. 688; Richerson v. State, 43 Okla. Cr. 293, 278 Pac. 356.

The evidence being sufficient to sustain the verdict of the jury, the cause is affirmed.

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


text:
    DANIEL HARVEY v. STATE.
    Nos. A-7247, A-7248.
    Opinion Filed Feb. 28, 1930.
    (287 Pac. 834.)
    L. A. Justus, Jr., for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cherokee county on a charge of rape in the first degree and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of fifteen years.

These two cases constitute but one appeal and are therefore consolidated. Counsel for defendant requested the court to impanel a jury to try the question of defendant’s sanity and mental capacity to proceed with the trial. Thereupon a jury was duly impaneled as provided by article 18, chapter 7, C. O. S. 1921. The jury returned a verdict finding the defendant sane, and thereupon the court proceeded to impanel a jury for the trial of the defendant for the crime of rape as alleged in the information. It appeared from an examination of the jurors called into the box that a number of the jurors called had served as jurors in the trial of the sanity of the defendant and upon challenge for cause by the defendant were excused by the court.

It further appears from the record that four of the jurors constituting the jury which tried the defendant upon the charge of rape were members of the regular panel, were present in the courtroom and heard part of the evidence heard by the jury trying the sanity of the defendant, and were present in the courtroom and heard the verdict of the jury returned finding the defendant sane.

The defendant contends that because such jurors constituted part of the regular panel and had heard a portion of the evidence and were present in the courtroom when the verdict of the jury was returned finding the defendant sane, and because insanity was one of the defenses offered in the trial of said cause, and because the witness and evidence offered by the defendant were practically the same as in the insanity hearing, therefore said jurors were disqualified to sit in said cause, and that by reason thereof he did not have that fair and impartial trial required by the Constitution and laws of this state. This court has uniformly held that defendant was entitled as a constitutional right to have a jury impaneled, free from any opinion as to the guilt or innocence of the defendant and free from bias or prejudice against the defendant because of anything they had heard or knew that would tend to prevent them from giving the defendant a fair and impartial trial. Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478, Weber v. State, 44 Okla. Cr. 447, 281 Pac. 987.

While it is of great importance that every guilty man should be speedily brought to justice and punished for his crime, it is of still greater importance that the citizens of Oklahoma should know that the courts of the state will secure to each and every one of them, it matters not how poor, friendless, or unpopular he may be, the full protection afforded by each substantial privilege and right guaranteed to them by the Constitution and laws of this stata The Constitution of Oklahoma and of the United Statees declare that no person shall be deprived of life, liberty, or property without due process of law. There can be no such thing as due process of law in the trial of a case where the defendant has been deprived of a material constitutional right. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164, 1172.

It appearing from the record that some of the jurors impaneled in the trial of this cause were disqualified because of the matters complained of by the defendant, the court is of the opinion that the defendant was not tried before that fair and impartial jury contemplated by the Constitution and laws of this state.

Defendant complains of numerous other errors, some of which seem to have merit; but the view we take of this case renders it unnecessary to pass upon them at this time.

For the reasons stated, the cause is reversed and remanded.

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


author: EDWAEDS, P. J.

text:
    CHARLES R. FRAY v. STATE.
    No. A-7239.
    Opinion Filed Jan. 25, 1930.
    Rehearing Denied Feb. 28, 1930.
    (285 Pac. 142.)

      John L. Ward, L. O. Todd, and Geo. W. Boone, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWAEDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of murder, and was sentenced to death.

A brief statement of the facts of the crime are as follows: Defendant, in 1913, was married to Laura Angel. To this marriage, two children were bom, a boy, at the time of the tragedy, 14 years of age, and a girl 9 years of age. This marriage was dissolved by divorce in April, 1927, and the two children were awarded to the custody of the divorced wife. She resided at Jenks, and defendant resided at Tulsa. Defendant was a habitual user of intoxicating liquor, and much of his trouble with his first wife was due to this. In March, 1928, defendant married a second wife, Lucille. Defendant was of the opinion that his first wife was running a disreputable house in the town of Jenks, and was very much worried about her having custody of the children. On the morning of May 3, 1928, defendant made a batch of home brew, and defendant’s wife, Lucille, and a. friend went to the town of Jenks to bring defendant’s mother to defendant’s home, which they did, and also brought a Mrs. Bryan. Late in the afternoon, defendant’s wife and her friend took defendant’s mother and Mrs. Bryan back to Jenks, the defendant remaining at home. While they were gone, defendant and two other men drank some of the home brew, defendant drinking about three pint bottles.

About 6:30 or 7 p. m., defendant’s wife and her friend returned and brought a second young lady friend, a Mrs. Rose Oldham. Mrs. Bryan later left the house, and Mm Oldham remained to spend the night. Defendant was first affectionate toward his wife, but later became quarrelsome and abusive. He had an automatic pistol in the house, which his wife obtained, unloaded, and hid from him, and a quarrel developed between them, defendant trying to make his wife tell what she had done with the pistol. In the course of this colloquy, defendant said he was going to Jenks to kill Laura, his former wife. His wife, Lucille, told him he was not going to do so, and she would not get the pistol. Defendant struck his wife several times, and then got a twelve gauge pump shotgun, which was kept in the house, and told his wife he was going to' kill her if she did not give him the pistol. She refused; he then said he was going to leave anyhow and use his shotgun. After further words, defendant went to the garage, broke the lock, backed the car into the driveway, but his wife went out of the house, and persuaded him not to leave, and he came back into the house. He was carrying the shotgun, and began a further search for his pistol, and later suggested that the car ought to be put up. Defendant’s wife and her Mend went out and put the car up, and hid the pistol outside the house. When they returned, defendant was still hunting for the pistol, and his wife told him that, unless he behaved himself, she would call an officer about the home brew. Defendant went into the kitchen, and proceeded to break the bottles, while his wife pretended to dial a number. He went where his wife was, jerked the telephone loose, and struck her several times, from which she was apparently dazed, but in a few minutes she revived, and told him that it was the last time he was going to whip her; that she was going to leave. Mrs. Oldham then said she was going to her sister’s and defendant’s wife said she wanted to go to town. Defendant told them he would kill them if they attempted to go. The wife insisted, and he then shot her in the abdomen with the shotgun, and, holding the gun, told Mra Oldham to get her coat, that she was going with him. She asked him not to kill her, and got her coat, and asked him to take her to her sister’s. He made her get 4n the car, took the shotgun with him, and. drove directly to Jenks. On the way, she asked him to call an ambulance for his wife; he did not do so, but told Mrs. Oldham she was on her way to see him kill Laura. She asked him not to do so, and he told her he was sorry he killed Lucille, but she should not have made him mad when she knew he. was worried about the children.

He drove to his mother’s residence, a small hotel in Jenks; went in the back way, taking Mrs. Oldham with him. He told his mother that he had killed Lucille, and was going to kill Laura and Curtis, the town mashal. He loaded the shotgun, put some shells in his pocket, went to the home of his former wife; finding the door locked, kicked in the window, and shot her in the head, killing her. Then he returned to his mother’s place, and said he had shot the top of his first wife’s head off, but could not find the town marshal. Something was said about him leaving, and he said, if he had enough money, he might. He was asked whether or not he was nervous, and he held up his hand to indicate that he was not. Soon the town marshal and two other officers came to the hotel. Defendant saw them, and concealed himself, and, when they entered, he shot the marshal from the back, and, stepping from his place of concealment, was shot by one of the officers. He then said to the officer: “Well, Bill, you’ve got me.” He was taken to the hospital, and there made statements, telling in detail all these circumstances.

The defense was insanity. No hereditary insanity nor physical injury to the brain was shown or attempted. Testifying in his own behalf, defendant related what had occurred up to about 6:30 or 7 o’clock on the evening of the homicide, but stated from that time he did not remember anything until after he had been operated on at the hospital. There is no substantial controversy as to the facts of the killing. He is charged with the murder of Lucille Fray, the second wife.

Several assignments of error are urged as ground for reversal. The first is that the jury was not impaneled in substantial compliance with the provisions of the statute.. The jury was drawn as provided by sections 3517, 2644, Comp. Stat. 1921. But the claim is that there was a violation of section 2645, Comp. Stat. 1921. This section is:

“When the ease is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion, wait or not for the return of the attachment.”

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 Okla. Cr. 428, 183 Pac. 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 Okla. Cr. 153, 198 Pac. 112.

It is next argued that the trial court erred in admitting evidence of the killing of the former wife, Laura, and the other acts of defendant subsequent to the shooting of his wife, Lucille. The soundness of the general rule cannot be questioned that, where a defendant is put on trial for one offense, he is to be convicted, if at all, by the evidence which shows that he is guilty of that offense. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689; Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383. But it is equally sound that, where another offense has some logical connection with the offense charged, or tends to show motive, intent, animus, or to cast light upon the offense charged, it is admissible for that purpose. Smith v. State, 3 Okla Cr. 629, 108 Pac. 418; Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820; Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425; Kennedy v. State, 25 Okla. Cr. 306, 220 Pac. 61; Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971.

Here under the state’s evidence the killing of the wife, Lucille, was directly due to her interference to prevent the express purpose of defendant to kill his former wife, Laura. The subsequent killing of the former wife, Laura, shows the motive and state of mind of defendant in killing his wife, Lucille, and tends to cast light upon that crime. Under the well-recognized rule, this evidence was admissible for that purpose.

Complaint is further made that the court erred in permitting the state to show in rebuttal acts of lewd conduct on the part of defendant. The defendant in substance had sought to show that the misconduct of his former wife, Laura, and the fact that she had the custody of his children, affected his mind, and led up to his mental condition under which the killing was done. The state, of course, rebutted this. The theory is that a man of good moral character, respectable and respected in his community, having regard for his duties as a husband and the virtue of women, upon learning of the immorality of one near him, may be shocked, or such knowledge may prey upon his mind and culminate in temporary insanity, and that such state of mind would be expected in a man of this character much more readily than in a libertine or man who is immoral. For this reason, rebutting, testimony of a defendant’s conduct about this time is permitted for the purpose of showing the condition of his mind, and to rebut the inference that the mental shock or strain was sufficiently great to unseat his reason. Coffeen v. State, 22 Okla. Cr. 212, 210 Pac. 288. There was no error in admitting this testimony for this purpose..

It is further contended that the court erred in refusing defendant’s requested instructions 2 to 19, inclusive. These requested instructions embrace the law of insanity; the admissibility of evidence as to the acts of defendant subsequent to the killing of the wife, Lucille; the matter of intoxication by defendant at the time of the homicide as making him incapable of forming an intent. Upon the latter point are requested instructions defining and submitting the lesser offense of manslaughter in the first degree. The requests also cover some other matters. Various of these requests are covered by the general instructions of the court which correctly define and apply the law of insanity. They also properly limit the evidence of the acts of defendant subsequent to the killing of the wife, Lucille. The court properly declined to instruct the law of manslaughter in the first degree. Such instruction is proper under some state of facts. Cheadle v. State, 11 Okla Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031. That condition, however, does not obtain here. The killing by defendant was proven. There is nothing to show mitigation, justification, or excuse either in the evidence on the part of the defendant or that by the state, excepting, of course, the defense of insanity. Section 2719, Comp. Stat. 1921. It was not the contention of the defendant that he was intoxicated, nor does the evidence sustain this view. The court, therefore, properly denied this request. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124. The instructions as a whole correctly and fully cover the law of the case.

Lastly, it is argued at some length that the trial judge was guilty of misconduct, particularly in remarks made in examination of prospective jurors. It seems to us that the examination of jurors was not done with that decorum and courtesy that should have been observed. We find defendant’s counsel objecting to the “manner” of the court, the “conduct” of the court, and “interference” by the < ourt, and in some instances interposing questions when counsel for the state was examining, and find the court admonishing counsel not to “butt in.” We have scrutinized the record carefully upon this assignment of error, and, while we are of the opinion that the court was too active in questioning the jury, and should have left this more to counsel, yet we cannot find anything that can reasonably be said to be prejudicial.

Upon a consideration of the whole record, we find no substantial error. The issue of insanity was submitted to the jury, it was a question of fact, and their verdict is against the contention of defendant’. We cannot see how the jury could have reached any other conclusion. There appears to be nothing in this case that would justify this court in interfering with the judgment and sentence.

The judgment appealed from is therefore affirmed.

It is further ordered by this court that the warden of the penitentiary proceed to carry into execution the judgment of the district court of Tulsa county in this case, and the 28th day of March, 1930, is fixed as the date for executing the sentence pronounced.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    BILL WAGNER v. STATE.
    No. A-6961.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Feb. 28, 1930.
    (285 Pac. 141.)

      W. R. Wheeler, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Caddo county, on a charge of rape in the second degree, and his punishment fixed at one year in the penitentiary; from which judgment and sentence the defendant has appealed.

The state called Helen Wise as a witness, who testified she was 18 years of age at the time of the trial; her birthday was on the 17th day of July, 1927; she met the defendant on the 11th day of July, 1926; that Pruett, Vena Risley and the defendant came to her house:

“We started to Mountain Home; I did not know the defendant, but they said he was named Bill; we went to Boon, then turned north a mile and east; Bill made an excuse to stop, said his clutch was loose; he said he wanted a drink and wanted me to go along; I did not want to go, T finally started and we got a little piece and I started back; he said, ‘don’t go back now’; we sat down and he shoved me back; he promised that if he left me in this condition he would turn the car over to me, give me the keys; he kept on for about five minutes and I finally consented; I saw him once after that; he had sexual intercourse with me that night there on the side of the road; this was in Caddo county; I was not the wife Of Bill Wagner; lie was a married man, lie told me that night he was single; as a result of that cohabitation there was a child born May 16,1927; I had never had intercourse with any person before that time.”

On cross-examination witness said the defendant told her he would give her the Ford car if anything should happen to her; witness was asked if she knew Henry Foster, and she answered:

“'Yes; I never went anywhere with him; I have been around in his company; I never slept in bed with Grace Rizzell and Henry Foster; I don’t remember anything about that; Raymond Oakerson picked cotton at our place; I never told him I was going to have a baby and that it was Henry Foster’s; I never did go with Dud Pruett, nor did I go anywhere with Lige Miller; I talked to Mrs. Wagner and another woman that came to our place about this matter about the time the defendant was arrested; the first time I ever saw this man Wagner I saw him at a dance.”

The witness was corroborated by her father, E. W. Wise, as to her age, and. as to the birth of the child, and when it was born.

The defendant in his own behalf admitted being out with the prosecutrix on the road; admitted he tried to have sexual intercourse with her, but stated she refused; and he left without accomplishing his purpose;, he denied having intercourse with her at any time. An effort was made all through the examination of the defendant to show the prosecutrix had been guilty of illegal cohabitation with other men, and that this defendant had not cohabited with her; considerable time was taken in the testimony to show that the date charged in the information was changed from July 25, 1926, to July 11, 1926. The testimony on behalf of the state shows the defendant cohabited with the prosecutrix on or about July 11, 1926, and that she had not cohabited with any other man. The defendant admits being with the prosecutrix the night alleged, and admits he tried to persuade her to cohabit, but denies he had intercourse with her, and tries to break down the character of the prosecuting witness by showing she had been guilty of illegal cohabitation with other men. This is, in substance, the testimony.

The defendant has assigned eight other errors, alleged to have been committed by the trial court, upon which he relies for reversal of the case. First, the court erred in overruling the motion of plaintiff in error for a continuance on the ground of the absence of Raymond Oakerson, who was a material witness for the defendant. A motion for continuance is addressed to the sound discretion of the trial court, and, unless that discretion is abused, this court will not reverse the case on the ground that the court abused its discretion in refusing to grant the motion for continuance. No diligence is shown on the part of the defendant to procure the attendance of the absent witness, nor is there any reason to believe the witness would be back from California in time to attend as a witness at any future date. The court did not err in refusing to grant the motion for a continuance on the showing made.

The third assignment is that the verdict of the jury is contrary to the law and evidence produced in the trial of said cause. In this case the defendant was a married man, and, if you believe his own statement, was driving around over the country with the prosecuting winess, one other boy and a girl, and made some excuse to stop along the highway and get out, and finally persuaded the prosecutrix to get out; they went back a short distance from the car on some pretense, and he admitted he tried to pursuade the prosecutrix to have sexual intercourse with him; he says he did not accomplish his purpose. The prosecutrix says he did accomplish his purpose, and up to that time she had never cohabited with any other man; she further says that as a result of that cohabitation she gave birth to a child.

There is a slight conflict in the testimony, but the testimony on behalf of the state is amply sufficient, if believed by the jury, to sustain the verdict. The court properly instructed the jury on the law as applied to the facts in this case, and the jury found the defendant guilty. We hold that the judgment in this case is sustained by the evidence. There are other errors discussed, but they are not of sufficient importance to justify the court in reversing this case. The defendant had a fair and impartial trial. The evidence is sufficient to sustain the verdict.

Finding no prejudicial errors in the record, the case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte CLAUDE PRUITT.
    No. A-6483.
    Opinion Filed Feb. 28, 1930.
    (288 Pac. 351.)
    Rutherford Brett, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

Claude Pruitt, hereinafter called the petitioner, filed his petition in this court for a writ of habeas corpus alleging that he was illegally restrained of his liberty by the sheriff of Carter county, Okla.

An'examination of the record discloses that the petition fails to state facts sufficient to require the discharge of the petitioner. The writ is therefore denied.

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


author: PER CURIAM.

text:
    JAMES ERVIN ROSE v. STATE.
    No. A-6986.
    Opinion Filed March 3, 1930.
    (287 Pac. 751.)
    E. H. Beauchamp and W. H. Kornegay, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst: Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county on a charge of manslaughter in the first degree, and his punishment fixed by the court at imprisonment for five years in the state penitentiary.

The death of the defendant having been suggested to this court, and it having been made to appear to the court by affidavit and showing of the county attorney that the defendant died on the 13th day of January, 1930, the opinion heretofore filed in said cause is withdrawn, and the said cause is abated.


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    WILLIAM GAINES v. STATE.
    No. A-7084.
    Opinion Filed March 8, 1930.
    (287 Pac. 1066.)
    Freeman E. Miller, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having possession of three pints of whisky, and his punishment fixed at a fine of $50 and confinement in the county jail for thirty days.

The evidence of the state was that the officers searched the place of business of the defendant and found three pints of whisky; that defendant said the whisky was his, and later told the sheriff that he was coming over and plead guilty to the charge; that the defendant was often seen in this place of business and that the place was known as the “Billie Gaines Restaurant.” The defendant denied that he owned the place or the liquor or knew anything about it being concealed there.

The defendant first contends that the evidence is insufficient to support the verdict of the jury, but in the light of the record this contention is without merit.

Defendant next contends that the court erred in giving instruction No. 2, wherein the defendant complains that the court instructed the jury, “That the keeping of one quart of any spirituous, vinous, fermented or malt liquors, * * *” whereas the instruction as appears from the case-made reads, “You are further instructed that the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors. * * *”

The defendant contends in his brief that the court left out the word “excess,” but the record does not support that contention. Defendant complains of other errors, but they are all without merit

For reasons stated the casue is affirmed.

EDWADRS, P. J., and DAVENPORT, J., concur.


text:
    WILLIAM DAY v. STATE.
    No. A-7089.
    Opinion Filed March 8, 1930.
    (287 Pac. 1060.)

      Bristow & Johnson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having unlawful possession of ten gallons of whisky, and his punishment fixed at a fine of $500 and confinement in the county jail for 90 days.

The evidence of the state was that the officers visited the residence of the defendant with a search warrant, and found a ten-gallon keg of whisky. The evidence of the defendant was that he had been in Texas with his wife for two or three days, and a son testified that, in the absence of his father, and without his knowledge or consent, he had taken the whisky to his house and concealed it. The court permitted the county attorney to introduce evidence , of the general reputation of defendant’s house as being a place where intoxicating liquors were kept and sold without first proving that such residence was a place of public resort.

This court has repeatedly held that proof of the reputation of the residence could not be introduced until it was first shown that the residence actually was a place of public resort and not merely that it had such reputation. Miller v. State, 36 Okla. Cr. 277, 253 Pac. 1039; Fitzgerald v. State, 39 Okla. Cr. 320, 264 Pac. 929; Leigh v. State, 41 Okla. Cr. 332, 273 Pac. 280.

There was no evidence offered by the state of previous sales of liquor to show intent on the part of defendant. For the reasons stated, the cause is reversed.

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


text:
    A. D. SPEARS v. STATE.
    No. A-7159.
    Opinion Filed March 8, 1930.
    (287 Pac. 1060.)
    Jas. A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was jointly informed against with one J. C. Hoover, alias J. C. Clifton, charged with the crime of robbery with firearms; was tried separately, convicted, and sentenced to serve a term in the state penitentiary for 25 years. Motion for new trial was filed and overruled, and defendant has appealed to this court.

The testimony on behalf of the state, in substance, is that on the night of January 5,1928, the defendant, acting conjointly with J. C. Hoover, alias J. C. Clifton, entered the Quaker Drug Store No. 3, at 10 East Eighteenth street, Tulsa, Okla., shortly after 11 o’clock; that the man J. C. Hoover passed through the drug store and into the prescription room where the manager, Harry Fisher, whs, and drew a gun upon him and demanded his money; that the said Hoover went through an old safe that was back there, still keeping his gun on Fisher; Terrill Morrison ánd Shelby Crawford and a man by the name of L. C. Durnall, who was a night watchman or policeman, were in the front part of the drug store; Fisher says he heard the cash register open, but could not see who was in the front part of the drug store; Durnall was where Hoover could , not see him, and fired a shot, killing Hoover, and the other party ran out of the front of the drug store.

The testimony of Shelby Crawford, who was the delivery boy for the drug store, is that he came into the drug store after making a delivery, and a man was at the cash register and told him to beat it; that he got up close to the . man, who shoved him and told him to get out, and he went out; when the shot was fired that killed Hoover, the man at the cash register ran out of the drug store.

The testimony is not clear as to the amount of money secured, but it was something in the neighborhood of |46. No one in the drug store saw the defendant in this case except the delivery boy, Shelby Crawford. After the defendant was arrested, Crawford was taken to jail where the -defendant was in custody, and positively identified the defendant as being the man that was at the cash register in the drug store.

The testimony on behalf of the state further tends to show that J. C. Hoover, the man that was killed, and the defendant were rooming at the time of the alleged robbery at 2% North Main street; at this rooming house was a woman living in the same room with the defendant by the name of Vivian Shields; that, on the morning following this alleged robbery at night, the defendant in this case and the woman moved from the rooming house at 2% North Main street to 411% North Main street, the woman registering in the name of Mathews; the defendant did not register.

The defendant admits he knew Hoover, the man that was killed, but denies he had anything to do with the robbery, and called several witnesses who were rooming at 2% North Main street to show he was there at different times on the evening of the alleged robbery, and relies, on an alibi for his defense in this case; that is, that he was at another and different place at the time of the robbery, knew nothing about it and took no part in the robbery. This is, in substance, the testimony in the case.

In the first assignment of error the defendant alleges the court erred in not granting the defendant’s motion for a new trial. This assignment, in our opinion, after carefully reading the record, is all the assignment necessary to be considered in order to arrive at a proper conclusion in this case, as it covers practically all the grounds alleged in the defendant’s petition in error.

It is urged by the defendant that the identification by the delivery boy who came into the drug store at the time the robbery was taking place was insufficient to sustain the verdict of the jury. The witness Shelby Crawford positively identified the defendant as being the man that was at the cash register when he came in the drug store; he says he got a good look at the robber and that the defendant is the man, and he recognized the defendant when he was taken to the jail when defendant was brought into the lobby. Witness Crawford says he could not be mistaken.

The defendant claims he was not present at the time of the robbery, and brought a number of persons from the rooming house where he.had been rooming who testified they had seen the defendant at different times during the evening of the alleged robbery. This court has held that it will not weigh the evidence where there is competent and substantial evidence to sustain the verdict; the question of the weight of the evidence and the credibility of the witness being within the exclusive province of the .Wry-

It is urged by the defendant that the testimony of the witness Crawford is not sufficiently definite and certain to warrant the jury in finding the defendant guilty, and' cites in support of his contention the following cases: Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175; Tislow v. State, 36 Okla. Cr. 346, 254 Pac. 511. The cases cited1 by the defendant are not in point in this case, as the testimony of the state positively identifies the defendant as being the man who was robbing the cash register in the drug store at the time the witness Crawford came in. The testimony is conflicting, but the jury passed upon that question, and by its verdict decided the question adversely to the defendant.

In Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115, this court in the syllabus said:

“Evidence considered, and held sufficient on appeal to sustain the verdict and judgment. In considering the sufficiency of the evidence, the function of this court is limited to ascertain whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.”

In Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425, in the second paragraph of the syllabus, the court said:

“Where there is substantial evidence to show the guilt of the defendant, this court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.”

The question of the sufficiency of the evidence has been before this court many times, and the court has uniformly held that, where there is any competent testimony in the record, though the testimony was conflicting, it would not disturb the verdict on the ground alone of the insufficiency of the evidence. In this case the evidence is sufficient to support the verdict.

There are other errors assigned, but from a careful reading of the record, and the instructions given by the court, the assignments are without merit. The record discloses that the defendant was accorded a fair and impartial trial; that the court substantially and correctly stated the law applicable to the facts in this case.

Finding no prejudicial or fundamental errors in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    JIM GEASLAND v. STATE.
    No. A-7131.
    Opinion Filed March 8, 1930.
    (287 Pac. 1116.)

      F. R. Bums, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Ottawa county on a charge of having unlawful possession of intoxicating liquor, to wit, eight half-pints of whisky, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 8th day of August, 1928. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    LYMAN BOGGESS v. STATE.
    No. A-7046.
    Opinion Filed March 8, 1930.
    (287 Pac. 764.)

      Ruble & Collier, Merle G. Smith, and Geo. W. Partridge, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with Paul Powers of the crime of murder. The defendant was tried separately and convicted of the crime of manslaughter in the first degree, and u as sentenced by the court to be confined in the state penitentiary for twenty-five years. From which judgment the defendant has appealed to this court.

The testimony on behalf of the state in this case tends to show that the state prosecuted Paul Powers in another action for the same crime alleged in this case; that Paul Powers was convicted and sentenced to twenty-five years in the penitentiary at McAlester; that Paul Powers was convicted in the May term, 1926, of the district court of Dewey county, Okla.; that about a year after Paul Powers had been confined in the state penitentiary atMcAlester, for some reason he makes statements attempting to charge the defendant in this case, Lyman Boggess, with the crime alleged to have been committed by Paul Powers, the allegation of which is that Paul Powers shot and killed a man by the name of Jim Townsend. The testimony tends to show at the time of the alleged killing Paul Powers was picking cotton for the defendant Lyman Boggess; that Jim Townsend was indebted to Paul Powers for labor, and that on the morning of the alleged killing Paul Powers borrowed a horse from the defendant to go to the Townsend place, and stated in the presence of the defendant that it was for the purpose of collecting the debt that Townsend owed him; some time during the day, and several hours after Powers left the home of the defendant, riding one of the defendant’s horses, Powers returned to the Boggess home and stated to the defendant Boggess what had occurred; the defendant then took charge of Powers and advised him to surrender to the officers of the law, and then informed the officers of the law where Powers was; and that thereafter, on the 5th day of November, 1927, the information was filed in Dewey county, Okla., on the uncorroborated testimony of Paul Powers, charging this defendant jointly with the commission of the offense originally charged against Paul Powers.

When Paul Powers was testifying on behalf of the state he was asked the following questions and gave the following answers:

“Q. Well, when you went down to the stable where the horse was, did you have any conversation?”

This question was objected to by the defendant, the objection overruled, and exceptions saved.

“A. When he handed me the gun he told me to either collect my wages or to shoot Jim Townsend.
“Q. Paulj what caused you to go down to Jim Townsend’s that morning to kill him?”

The defendant objected, the objection was overruled, and the defendant saved an exception.

“A. Well, my main reason was to collect my money. That was the reason.
“Q. Did you tell Mm you was going down and kill Jim Townsend on Monday? A. No, sir.
“Q. Did you ever tell him you was going to kill Jim Townsend? A. No, sir.
“Q. Did Lyman ever offer you any money to kill Jim Townsend? A. No, sir.
“Q. Did he ever offer you any compensation at all to kill him of any kind? A. Offer me anything to kill him.
“Q. Yes, employ you in any way to go down there and kill him (Townsend)? A. No.”

This is, in substance, the testimony of the state as to the connection defendant had with Paul Powers. Paul claims he got a pistol from the defendant to go down and collect his money, and that he used this pistol in his difficulty with Jim Townsend. The defendant claims he sold Paul the pistol, and that the selling of the pistol had nothing whatever to do with the controversy Paul Powers and Jim Townsend were having. The defendant in this case denies saying anything to Paul Powers about having-trouble with Townsend, and claims hé and Townsend were on good terms with each other; that he sold the pistol to Paul Powers, and that he had in any way whatever talked with the witness Paul Powers, who is jointly charged with him in the information, regarding the controversy he had had with Townsend, but states he told Paul Powers, if he was not through working for Townsend, to let his cotton picking go until he got through with Townsend.

The defendant in his twelfth assignment of error alleges that said conviction was based upon the uncorroborated testimony of an accomplice, and that there was no corroboration of the said accomplice at all as to the commission of the crime itself, and no testimony tending to connect the plaintiff in error with the commission of the offense. An examination of the record discloses that the only testimony which tends in any way whatever to sho w that Townsend was shot by Paul Powers, and may have died, is the following statement:

“Well, I got on the horse and rode down there and had some difficulty with Townsend and shot him.
“Q. Killed him? A. Yes, sir.”

In every criminal prosecution it devolves upon the state to prove the corpus delicti; and, second, that the crime charged was committed by the accused. Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108; Marston v. State, 9 Okla. Cr. 275, 131 Pac. 716.

In Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152, this court said:

“The corpus delicti in a criminal case cannot be established by the confession of the defendant alone. There must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had.”

Michie on Homicide, vol. 2, § 228 (3), p. 1121, in part is as follows:

“Neither the extrajudicial confession or admission of the defendant, nor the testimony of accomplice standing alone without corroboration is sufficient proof of the corpus delicti.” Anderson v. State, 34 Tex. Cr. R. 546, 31 S. W. 673, 53 Am. St. Rep. 722; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989.

• Michie on Homicide, vol. 2, § 228 ( 4), p. 1122, in part is as follows:

“To justify conviction in a homicide case the corpus delicti must be proved beyond a reasonable doubt.” Ausmus v. People, 47 Colo. 167, 107 Pac. 204, 19 Ann. Cas. 491; Byram v. People, 49 Colo. 533, 113 Pac. 528; Zell v. Commonwealth, 94 Pa. 258 ; Lott v. State, 60 Tex. Cr. R. 162, 131 S. W. 553.
“Where the homicide is denied by defendant, the burden is on the presecution to prove the killing beyond, a reasonable doubt.” State v. Teachey, 138 N. C. 587, 50 S. E. 232.

In this case the only effort made by the state to prove the corpus delicti was by the accomplice Paul Powers. We hold that, independent of the testimony of Paul Powers, there is no evidence of sufficient character to prove the corpus delicti.

There are other errors assigned by the defendant, but the view we take of this record it is not necessary to consider them. The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    L. A. WOODS et al. v. STATE.
    No. A-7150.
    Opinion Filed March 8, 1930.
    (287 Pac. 769.)
    Sam S. Gill, for plaintiffs in error.

      The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of manufacturing intoxicating liquor and their punishment fixed at a fine of $500 and confinement in the county jail for a period of ninety days for each of them.

The defendants contend that the search warrant was void, and that therefore the evidence secured thereunder was inadmissible. The search warrant was particularly objected to, in that it did not run in the name of the state of Oklahoma. That part of the search warrant pertinent to this case reads as follows:

“State of Oklahoma | “Oklahoma County j ss'

Search Warrant

“In the Justice Court of Oklahoma City District “To any Sheriff, Constable, Marshal or Policeman in the

County of Oklahoma, Greeting:

“Proof by affidavit having been made this day before me by a competent person. * * *”

Article 7, § 19, of the Constitution of Oklahoma, pi*ovides:

“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by the authority of the State of Oklahoma. All indictments, informations, and complaints shall conclude, ‘Against the peace and dignity of the State’.”

Section 862, C. O. S. 1921, provides:

“The style of all process shall be: ‘The State of Oklahoma.’ It shall be under the seal of the court from, whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.”

In the case of McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307, this court said:

“The provision of article 7, §19, of the Constitution and section 862, Comp. Stat. 1921, requiring that process shall run in the name of the state of Oklahoma, is mandatory. A search warrant is ‘Process’ within the meaning of section 19, art. 7, of the Constitution and section 862, Comp. Stat. 1921, and must run in the name of the state of Oklahoma.” Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279; Myers v. State, 40 Okla. Cr. 170, 267 Pac. 867; Sloan v. State, 45 Okla. Cr. 228, 282 Pac. 898.

The search warrant conferring no authority on the officers to make the search and seizure, the same was illegal and the evidence obtained thereby inadmissible. For the reasons stated, the cause is reversed.

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


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    HENRY BORDEN v. STATE.
    No. A-7078.
    Opinion Filed March 8, 1930.
    (287 Pac. 802.)
    Roy White, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was eonvieted in the district court of McIntosh county on a charge of assault with a dangerous weapon and sentenced by the court to serve one year in the state penitentiary. The verdict was returned on December 15, 1927. The motion for new trial was overruled, and judgment and sentence pronounced on December 21, 1927. The appeal was lodged in this court on the 21st day of June, 1928.

The state has filed a motion to dismiss the attempted appeal for the reason that no notice of appeal was served upon the clerk of the court and the county attorney, as required by section 2809, C. O. S. 1921. A careful examination of the record discloses that no notice of appeal was served on either the clerk of the court or the county attorney. This court has uniformly held that in such cases the court does not acquire jurisdiction of the appeal. Lucas v. State, 22 Okla. Cr. 301, 210 Pac. 1040; Merritt v. State, 35 Okla. Cr. 194, 249 Pac. 436; Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

For the reasons stated the motion of the Attorney General is sustained, and the appeal is hereby dismissed.

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


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    Ex parte FLOYD JARRETT.
    No. A-7171.
    Opinion Filed March 8, 1930.
    (287 Pac. 726.)
    Brett & Brett and Bass & Hardy, for petitioner.

      J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The petitioner, on September 13, 1928, filed in this court his petition alleging that he was not in the state of Colorado on the 23d day of May, 1928, that date upon which- it is alleged in the executive warrant he killed and murdered one John F. Parrish, in the state of Colorado.

Petitioner further alleges that he is illegally held under said executive warrant by E. C. London, sheriff of Carter county, Okla., and asks that a writ issue.

Upon an examination of the papers and record in this case, we find that the granting of a writ at this time would afford the petitioner no relief.

Therefore the writ is denied.


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    IVAN SHERWOOD v. STATE.
    No. A-7138.
    Opinion Filed March 8, 1930.
    (287 Pac. 725.)
    John W. Whipple, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Payne county on a charge of selling one pint of whisky, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for a period of ninety days.

The judgment was entered on the 11th day of April, 1928, and the record for appeal was lodged in this court on the 15th day of August, 1928. An appeal from a conviction for a misdemeanor must be filed in this court in sixty days unless the court makes proper orders of extension. Any extension the court makes cannot exceed' sixty days additional; therefore, the appeal must be filed in this court within one hundred and twenty days from date of judgment. Section 2808, C. O. S. 1921.

When an attempted appeal is not filed in this court until the expiration of one hundred and twenty days, this court acquires no jurisdiction. In the case at bar the appeal was filed four days after the time had expired.

For the reasons stated, the appeal is dismissed.

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


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    A. R. SANDERS v. STATE.
    No. A-7058.
    Opinion Filed March 8, 1930.
    (287 Pac. 846.)

      Keller & Cameron, for plaintiff in - error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Love county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at five years’ imprisonment in the state penitentiary. It is from this conviction that he appeals to this court.

The evidence of the state shows that defendant lived in Texas, and that he had come with his family to the home of Steve Deddeck, who had married his daughter, for the purpose of visiting the daughter, who was sick. The deceased, Fred Smith, was living in the same house with Deddeck, and had been picking cotton for him. Smith was a married man, with a wife and several small children living there with him. The killing occurred about 8 o’clock at night, when defendant and his family were leaving the premises to go to the home of another daughter of defendant to spend the night. Defendant shot deceased with a pistol. At the time of the shooting, deceased was between Deddeck’s house and the gate at the public highway, which gate was about 150 yards west of Deddeck’s house. Deceased and another farm hand had gone down to this gate to get Deddeck, who was expected to return home about that time. They did meet Deddeck, and the three started back from the gate to Deddeck’s house. Shortly after leaving the gate, a shot was heard up toward the house, and immediately the defendant and his family came down toward the gate in a Ford car. According to the state’s evidence the defendant shot Smith, the deceased, while he was standing at the side of the road doing nothing.

The evidence of the defendant tended to show that defendant shot deceased in self-defense after deceased had jumped on the running board of the car with a shotgun in his hand. The evidence is sharply conflicting, but, as the weight of the evidence and the credibility of the witnesses were for the jury, this court will not substitute its judgment for that of the jury and the trial judge when there is competent evidence to support the verdict of the jury. Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352.

The defendant contends, first, that the court erred in overruling his motion for a continuance. This was an oral, unverified motion, dictated into the record by counsel for defendant when the case was called for trial on December 19, 1927. The motion therefore did not comply with the requirements of the statute. The motion was based on the proposition that the defendant had not been served with any notice that his case would be called for trial on that date, and, because he had not been notified, he had not prepared for trial by having certain material witnesses in his behalf present in court at that time. There is no statute requiring that the defendant be notified. The docket of the court had been published and circulated some two or three weeks before the case was called for trial. Defendant was under bond to appear in court from “term to term and day to day without notice.” His bond required him to be in court whenever he was needed and any failure to keep posted as to the terms of court and the days thereof was chargeable to him and not to the court clerk. But, irrespective of the insufficiency of defendant’s motion and of his laches, the record discloses that there was no abuse of discretion on the part of the trial judge in overruling his application. Two of the alleged absent witnesses, Ray Sanders and S. B. Smith, appeared and testified in behalf of defendant at the trial. As to the witness McCracken, defendant’s testimony in support of his motion shows that the defendant did not know the whereabouts of this alleged witness, and did not know what he would testify to if he should procure him. There was no request to take his deposition and no likelihood of obtaining his presence at any subsequent term of court. The application for continuance was therefore properly overruled. Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Vineyard v. State, 22 Okla. Cr. 76, 209 Pac. 783; Howard v. State, 23 Okla. Cr. 1, 211 Pac. 1065; Hunter v. State, 23 Okla. Cr. 125, 212 Pac. 1014.

The defendant next contends that his defense was not properly presented to the jury by court’s instructions. There was no objection to any instruction given; neither was there any request for additional instruction on the theory of the defense. The only instruction requested was one of manslaughter in the second degree. There was no evidence authorizing the giving of an instruction defining second degree manslaughter; hence it was not error to refuse to give such requested instruction. Bradley v. State, 18 Okla. Cr. 503, 196 P. 730; Dobbins v. State, 21 Okla. Cr. 403, 208 Pac. 1056.

Counsel for defendant argue that the trial judge should have instructed the jury on the theory of justifiable homicide committed in defense of defendant’s family. In this case no such defense was presented, except as the same was merged in the right of the defendant to defend himself at the time of the fatal shooting. If this defendant fired the fatal shot in defense of anybody, he fired it in defense of himself, and, unless the defendant was justified in shooting deceased in his own defense, he was not justified at all. Defendant’s testimony, if it amounts to justification at all, is to the effect that he was defending himself; that deceased was angry at him, had threatened to whip him, and was attacking him.

The alleged danger to defendant’s family, if any, was occasioned by reason of their being in the car with the defendant, not because of any alleged attack by deceased directed against anybody but the defendant himself. The right of the defendant to defend his family was coexistent only with the necessity to defend himself under the facts in this case. In the case at bar, the court did instruct fully upon the right of the defendant to defend himself. Failure to instruct upon every possible question under defendant’s theory of the case has been held by this court not to be error where special instructions were not requested in writing. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Merriott v. State, 18 Okla. Cr. 248,194 Pac. 263.

The instructions in the case at bar were sufficient to cover the issue of self-defense as presented by the evidence. In the absence of any request for more comprehensive instructions on that issue, no reversible error appears.

The defendant next contends that the court erred in permitting hearsay evidence of the death of the deceased. The state introduced two doctors as witnesses who testified to operating on deceased in the hospital, and testified that he later died although they were not present and had no actual personal knowledge of the death. The state then called the wife of deceased, who testified that she was present at the time of his death, and that the deceased had died as a result of the wound inflicted by the defendant. Where incompetent evidence is permitted to go before the jury, and such facts are otherwise proved in a competent manner, the error occasioned by the admission of the incompetent evidence becomes harmless. Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609 ; Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797.

The evidence being sufficient to support the verdict of the jury, and no reversible error appearing in the record, the judgment is affirmed.

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


text:
    ED SANDERS v. STATE.
    No. A-7063.
    Opinion Filed March 8, 1930.
    (287 Pac. 842.)

      J ohn L. Ward and L. O. Todd, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and was sentenced to serve a term of ten years in the penitentiary at McAlester. The record was perfected, and the case appealed to this court.

The testimony in substance shows that J. D. Perry-man was in charge of a filling station owned by the South-land Gasoline Company, in West Tulsa, on the 23d day of September, 1927; that the defendant came to the filling station and demanded Perryman and a young boy at the station with him to “stick ’em up”; that the man who demanded them to stick ’em up took $52 in cash from Perry-man, and then compelled Perryman and the crippled boy who was with him at the time to go a short distance from the filling station with him, when he turned around and marched them back to a Chevrolet car of Perryman’s. During this time the defendant had his gun on Perryman and the boy; when they got back to the car, he had them get in, and, pointing the gun at Perryman, had him drive him some distance down through some woods, and then made Perryman and the boy get out, and told them he would leave the car at the post office; the defendant drove off, taking with him the $52 in money and the Chevrolet car he had taken from Perryman.

The witness J. D. Perryman positively identified the defendant as being the person who robbed him of his money and ear. The testimony further shows that shortly thereafter the defendant was arrested near Seminole, and at the time of his arrest had in his possession the automobile which had been taken from the witness Perryman. Perryman was called to Seminole, and there identified the defendant as being the man who held him up and robbed him. At the time the defendant was taken into custody in Seminole he did not give the name of Ed Sanders. When confronted with the fact that the officers were looking for the car, the defendant stated that a strange man had loaned him the cay to go and get some beer; he stated he did not know the name of the stranger, or where he lived.

The testimony on behalf of the defendant was in the nature of an alibi.; some four or five witnesses testifying that on the day of the alleged robbery at Tulsa the defendant was in and around Seminole and Earlsboro, and at such a great distance from Tulsa that he could not have possibly been in Tulsa at the time of the robbery from the time he was seen in and near Seminole and Earlsboro. Most of the witnesses testifying that the defendant was in Seminole county on the date of the robbery in Tulsa, Tulsa county, Okla., were relatives of the young man; one was a young lady sweetheart.

The record shows that Perryman positively identified the defendant as being the man who held him up and took his money and car; the witness was with the defendant .several minutes at the filling station and in the car which he was compelled to drive until he got down in the woods, where the defendant made Perryman and the crippled boy get out and leave him.

The defendant’s testimony denies that he was in Tulsa at the time the robbery took place, and states he was in Seminole county, which is shown to be about 125 or 130 miles from Tulsa, and his relatives and sweetheart testify to the same facts as does the defendant.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The first error assigned by the defendant is that the court erred in overruling his demurrer to the information. A study of the information shows that the allegations in the information are in ordinary and concise language, charging the defendant with robbing J. D. Perryman of $52 in cash and one Chevrolet roadster automobile of the value of $375, and by taking, stealing, and carrying away said money and automobile by means of force and putting the defendant in fear by the use of firearms.

It is urged by the defendant that his demurrer to the information should have been sustained; the defendant insisting that the information is duplicitous, charging robbery and larceny under all the separate statutes of the state of Oklahoma. With this contention we cannot agree. The information does charge that the defendant took from him $52 in cash at the filling station, and then when he came outside he forced the witness and a crippled boy to get in the car of the prosecuting witness and drive him a short distance away, and made them get out, and drove on with the defendant’s car. The taking of the money and the car being one continuous transaction, the allegations as to the taking by the defendant of the articles do not make the information duplicitous, as the information only attempts to charge one offense, that is, of robbery with firearms of the $52 in money and the Chevrolet car.

In Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253, the question discussed by the defendant in this case was discussed at considerable length by the court. In that opinion, in the first paragraph of the syllabus, the court said:

“To constitute robbery the taking must be either directly from the person or immediate presence and against the will of the party robbed, and must be by force or a previous putting in fear. It is the previous violence or intimidation that distinguishes robbery from larceny. The information in this case charged the taking of money from the person of another by means of force and fear, brought about by pointing a revolver and threatening to shoot if resisted, followed by the allegation, ‘Said defendants did then and there wrongfully, willfully, unlawfully, forcibly, violently, and feloniously take, steal, and carry away.’ Held, to sufficiently charge the crime, of robbery, and, the words ‘steal and carry away’ being mere surplus-age, the information was not bad for duplicity.”

The court did not err in overruling defendant’s demurrer to the information.

It is next urged by the defendant that the court erred in selecting and impaneling the jury. The defendant in his second assignment contends that the jury was improperly selected, drawn, and impaneled, and that by reason thereof the defendant’s substantive and substantial rights were impaired in this cause.

The record discloses that considerable testimony was taken upon the question of the selection of the trial jury. This question has been before the courts of the different states in many different forms, in all of which cases the courts have held that the important thing to be considered is the question, Were the rights of the defendant impaired • by the manner in which the jury was drawn, selected, and sworn, and did the manner of selecting, impaneling, and swearing the jury deprive the defendant of a fair and impartial jury to sit in the trial of his case? If the record discloses that, by reason of the method of selecting the trial jury, the defendant was deprived of any right guaranteed him under the Constitution and laws of this state, then the panel should haye been quashed, and the court should have ordered a new jury drawn. A substantial compliance with the law in drawing, selecting, and impaneling a jury is sufficient.

In Young v. State, 41 Okla. Cr. 226, 271 Pac. 426, this court in the second paragraph of the syllabus said:

“The statutes of this state providing for the impaneling of jurors in criminal cases, is not in all particulars! mandatory. A substantial compliance will be sufficient where the deviation is not material and has not prevented an accused from having a fair and impartial jury, selected by lot from the entire panel.”

The case of Young v. State, supra, was cited with approval in the case of Michael et al. v. State, 42 Okla. Cr. 124, 274 Pac. 900.

In Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883, this court in the body of the opinion said:

“A challenge to the panel can only be founded upon a material departure from the directions of the law in respect to the drawing and returning of the jury, or the intentional misconduct of the sheriff in the matter of summoning the same, and it must be shown in the challenge that the defendant has suffered some material prejudice thereby.”

There is no' showing in the record in this case that the jurors selected were biased or prejudiced against the defendant, or that the defendant’s rights were prejudiced by reason of the jury that was selected to try this case. The court did not err in overruling the challenge of the defendant to the entire panel of the jury. From the grounds stated in the challenge it cannot be construed to be a good challenge of the entire panel of the petit jurors, for the reason that most of the jurors of the regular panel were in the box at the time of the challenge, and that a number of them had been called in the box to be examined on their voir dire. The challenge to be good must be founded only on the statutory grounds that the defendant has suffered material prejudice. Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

The challenge of the panel was without merit, and it was not error for the court to overrule the same.

It is urged by the defendant that the county attorney in his remarks went outside of the record, and the remarks made by him were highly prejudicial to the substantial rights of the defendant. The remarks of the county attorney complained of are as follows:

“The Court: Let the record show that the county attorney has just told the jury in substance that it was an easy matter for anyone in a case of this kind to go to Earlsboro, Cromwell, or some other place, and obtain there four or five witnesses who would testify to anything.
“Mr. Ward: That is part of what he said, and he stated further, your Honor, that the relatives in a case like that, you could depend upon the relatives and friends of this defendant to swear anything, to get him out.
“The Court: All right, put that in the record.
“Mr. Ward: We object to that argument and ask the court at this time to admonish the jury to disregard it for any purpose whatsoever, and ask that the county attorney be * * * highly prejudicial, not within the testimony, not within any legitimate argument of the testimony.
“The Court: Overruled.
“Mr. Ward: Exceptions.
“Mr. Wallace: You men are not interested in technicalities or anything of that kind, not from the time you were called into the box up to this time. You are not interested in those little things, but what you want-to know are the facts. Now, then, I believe under this evidence just as much as I am now standing here that that fellow there held up and robbed J. D. Perryman as sure as the sun is shining now. There is no question about that in my mind-—-none on earth under this evidence. Men, if we are going to stop fellows from doing things like this, when there is a fellow you could not. be mistaken about, what are we going to do? Are we going to turn him loose? Yes, these friends and relatives on a trumped-up defense, that is all it is, and the worst trumped-up one I have ever seen, and so his brother and his sister and his uncle and his sweetheart and his people—I say you can go anywhere from here to Cromwell, Oklahoma, you can find fellows, if they think they are four or five against one—he will swear hell is an icehouse anywhere—
“Mr. Ward: We object to that argument—
“Mr. Wallace: I say—
“The Court: Wait a minute.
“Mr. Ward: It is not legitimate argument based on the facts in the case.
“The Court: Overruled.
“Mr. Ward: Exceptions.
“Mr. Wallace: They will swear anything. Men, this is a serious proposition. They had the sergeant of the police—I don’t know whether you introduced this or not —these reports. He did not testify. Take that report. Said this fellow gave his age as 26 and that he weighed 150 pounds—■
“Mr. Ward: No, 135 pounds.
“Mr. Wallace: I mean the record showed—was it 135?
“Mr. Ward: Yes, sir.
“Mr. Wallace: 135, and the records as I remember showed he weighed 150. I believe he says he weighed no—
“Mr. Ward: 154.
“Mr. Wallace: Did he not tell what he weighed when he Avas put in jail? No, he did not. He tells what he Aveighs now, but did not tell what he Aveighed when he was put in there, after having been fattened up.”

The foregoing statements of the county attorney in his argument to the jury, as disclosed by the record, seem to be comments upon the testimony and on the witnesses who were brought from Earlsboro or Cromwell to testify to the defendant’s presence in that section of Seminole county at the time of the alleged robbery; other parts of his argument went to the fact that under the evidence, beyond a reasonable doubt, the defendant was guilty. The entire argument of the county attorney is not incorporated in the record, but only excerpts from the argument. This court has held in several cases that, where such state of facts exists and the trial court overrules the objection to such argument, this court will not reverse the case on the alleged errors, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant; that under the circumstances the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, and the burden is on the de-' fendant to show error in the ruling of the trial court. Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137.

The error complained of is without sufficient merit to warrant a reversal of this case.

It is next urged by the defendant that the trial court erred in permitting the jurors to separate and go to their homes and in overruling the defendant’s motion to dismiss, and in overruling the defendant’s motion to tender proof in support of said motion to dismiss for the reason in said motion set out. The defendant in support of his contention cites Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114, and Cosby v. State, 30 Okla. Cr. 294, 236 Pac. 51. From an examination of the cases cited by the defendant we hold they are not in point, and that the facts in the cases cited were different to the facts in this case. In this case the jurors were permitted to separate and go to their homes; they were admonished by the court not to read the papers concerning the question to be submitted to them, and to permit no one to talk to them about the case. As shown by the record, no objection to the jurors separating was entered by the defendant at the time the court permitted the separation, nor is there any direct allegation in the defendant’s motion to dismiss the jury that the defendant had been injured by the separation of the jury; the only allegation being that in all possibility certain things had occurred of which the defendant desired to make proof. Yarbrough v. State, 13 Okla. Cr. 140, 162 Pac. 678; Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861.

As to' whether or not the jury should be kept together before the case has been submitted to' the jury is within the sound discretion of the trial court. In the case of Wright v. State, 12 Okla. Cr. 443, 158 Pac. 290, this court held that, where the jury was permitted to separate to allow a juror to attend the funeral of a member of his family, and the defendant made no objection to and took no exceptions, he could not complain on appeal.

Section 2716, C. O. S. 1921, authorized the judge of the court in his discretion to permit the jurors to separate at any time before the case is finally submitted to them, even in capital cases. Weatherholt v. State, 9 Okla. Cr. 161, 132 Pac. 185; Yarbrough v. State, 13 Okla. Cr. 140, 162 Pac. 678. We hold this assignment is without merit.

It is next urged by the defendant that the trial court erred in overruling defendant’s motion to withdraw from the consideration of the jury all testimony with reference to search and seizure, and disclosure of things found in the automobile driven by the defendant upon the seizure secured Avithout a search Avarrant. The testimony in this case shows that the officers had been advised of the larceny of the Chevrolet car and robbery, and they were out on the road looking, for them. They stopped the defendant, who was driving the car described, and took him into custody ; he was found in possession of a stolen car, and therefore the testimony in this case was admissible against him. The record in this case clearly shows that the car the defendant was found in possession of was the car belonging to the prosecuting witness Perryman, and no one disputes the fact that the car was the car of the prosecuting witness Perryman; therefore the argument of the defendant as to the search and seizure was properly overruled by the court.

It is next contended by the defendant that the lower court erred in giving instruction No. 7 to the jury, which was on the question of an alibi. We have carefully considered this instruction in connection with the statement of the court in Stout v. State, 41 Okla. Cr. 42, 270 Pac. 90, in which instruction the language used is in the same language as the instruction in this case. The court there held the instruction was not prejudicially erroneous. Defendant has cited several authorities supporting his contention, all of which decisions of this court involve the instructions of an alibi, but the instruction in this case was more favorable to the defendant than the instructions in the language contended by the defendant should have been given.

The defendant also complains of instructions 4, 5, and 6, given by the court. After an examination of the instructions 4, 5, and 6, it is the opinion of the court that the instructions properly stated the law as applied to the facts in this case, and the court did not err in giving the said, instructions to the jury.

We have considered all of the errors it is deemed necessary to consider in order to arrive at a proper decision in this case. Finding no fundamental or prejudicial errors in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    HARRY ASKEW v. STATE.
    No. A-7147.
    Opinion Filed March 8, 1930.
    (287 Pac. 815.)
    R. C. Roland, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Marshall county on a charge of assault with intent to kill and his punishment fixed by a jury at imprisonment for five years in the reformatory at Granite. It is from this conviction that he appeals.

The evidence of the state reveals that on the 30th day of January, 1927, the date of the commission of this crime, the defendant and one Orville Brown attended a party at the home of Bud Hattock; that during the early part of the evening the defendant came into the house and up to where Brown was sitting and asked him if he had not told certain parties that he (the defendant) was afraid of Walter Adamson; that the prosecuting witness, Brown, admitted that he had, and the defendant said, “You are a God damn liar.” Whereupon the prosecuting witness grabbed the defendant and a short fight ensued, and they were separated by other persons at the party.

The evidence further discloses that the father-in-law of defendant told Brown and defendant that if they wanted to fight to go outdoors and fight, and that the defendant went out at one door and Brown went into another room and through the room out another door; that about the time the prosecuting witness passed through the door onto the porch, the defendant shot him with a pistol; that no words were spoken before the shot was fired; that tl’e shot entered his body on the left side of his chest and came out on the left side of the back.

The defendant claims that he shot in self-defense; that he saw the defendant coming out the door and thought he saw a knife in his hand, and believing that the defendant was following him to do him material injury and bodily harm, he fired the shot. The defendant is not corroborated in any of his testimony, he alone taking the stand in his behalf. The evidence of the prosecuting witness is corroborated in every respect by a number of state’s witnesses.

The shooting was admitted by defendant, but he sought to justify the same on the ground of self-defense. This issue was fairly submitted to the jury and they found against the defendant. There being sufficient evidence in the record to support the verdict the court did not err in overruling the motion for new trial.

The defendant next complains of instruction No. 10, which is as follows:

“You are further instructed that if you believe from the evidence or entertain a reasonable doubt thereof, that at the time and place mentioned in the information that Orville Brown made an assault upon the defendant, Harry Askew, and that a difficulty thereupon ensued, and that difficulty was terminated and the said Orville Brown abandoned the difficulty, and if you further believe that after said Orville Brown had abandoned said difficulty, the said Harry Askew shot said Orville Brown without any further acts or demonstrations upon the part of said Orville Brown towards said Harry Askew, then the said defendant, Harry Askew, could not avail himself of the plea of self-defense, and if he shot said Orville Brown under these circumstances, he would be guilty of either an assault with intent to Id1! or an assault with intent to do bodily harm without justifiable or excusable cause, as you may find the other facts to be, under other paragraphs of these instructions.”

The court also gave instruction No. 15, which is as follows:

“You are instructed if you find and believe, or have a reasonable doubt thereof, that the defendant, Harry Askew, abandoned the difficulty and went out upon the porch, and that Orville Brown pursued and renewed the conflict by doing some act or acts, which lead the defendant, situated as he was, to believe that Orville Brown was about to do him some bodily harm, as viewed from the standpoint of the defendant, then you are instructed that the defendant would have the right to use such force as reasonably appeared to him to protect himself from the assault, whether same was real or apparent on the part of the said Orville Brown as it appeared to the defendant at the time, to be necessary to prevent the said Orville Brown from doing him great bodily harm.”

Instruction No. 10 should have contained the further statement, “and if the defendant knew that the prosecuting witness had abandoned the conflict”; but in the light of the record we are unable to see how the defendant was prejudiced by leaving this statement out of such instruction. It appears from the record that the,defendant was the aggressor in the beginning of the difficulty; that he went to the prosecuting witness and began an argument and called the prosecuting witness “a god damn liar,” and when the prosecuting witness grabbed defendant, he struck him; that as the prosecuting witness put on his hat and coat to leave, defendant attempted to assault him again. Thereupon the parties were told that if they wanted to fight to go out in the yard; that defendant went out of one door, and as the prosecuting witness had his hand on the screen to go out of another door, defendant shot him.

Under the facts as thus disclosed, the defendant appears to have been the aggressor, and the instructions were as favorable to the defendant as he was entitled to have given. The defendant had a fair trial, the evidence sustains the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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