text:
    W. Z. GRAHAM v. STATE.
    No. A-4399.
    Opinion Filed Nov. 24, 1924.
    (230 Pac. 763.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Court — Continuance in Homicide Case. An application for continuance in a homicide case is addressed to the sound discretion of the trial court, and unless an abuse of such discretion clearly appears, this court will not reverse the judgment for refusal to grant a continuance.
    2. Appeal and Error — Witnesses—Questions as to Conviction of Crime to Affect Credibility — Harmless Error in Sustaining Objections to Questions — Error to Be Preserved by Showing Answers of Witness. Under the statute (section 585, Comp. Stats. 1921) a witness may be asked whether or not she has been convicted of a particular crime for the purpose of affecting her credibility. Held, that sustaining the state’s objections in this case to the question was harmless; further, held that, when objections to a question are sustained, the record must contain some showing as to what the answer of the witness would have been had she been permitted to answer the question.
    3. Evidence — Homicide—Statements of Deceased, Unless Part of Res Gestae, Inadmissible — Where State's Witness on Cross-Examination Interrogated as to Statements of Deceased on Day of Homicide, Whole Conversation Admissible on Redirect Examination. In a prosecution for murder, statements of the deceased are not admissible in evidence unless they were a part of the res gestae. However, when a witness for the state, on cross-examination, is interrogated relative to a conversation with the deceased on the day of the homicide, the state on redirect examination had the right to show all of the conversation.
    4. Witnesses — Defendant Testifying in Own Behalf — Waiver of Privilege as to All Pertinent Legal Matters. When a defendant' takes the witness stand in his own behalf, he waives his constitutional privilege of silence in so far as all matters legal and pertinent to the case on trial are concerned.
    5. Same — Scope of Cross-Examination. When a defendant takes the witness stand and testifies in his own behalf, the prosecution has the right to cross-examine him with the same latitude as any other witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked any question on cross-examination pertaining to the matter at issue, or that goes to his credibility as a witness.

      6. Same — Extent of Irrelevant Cross-Examination to Test Memory or Affect Credibility Largely Discretionary. The extent-to which a witness may be cross-examined as to matters not relevant to the issue, for the purpose of testing his memory and of affecting his credibility, rests largely in the discretion of the trial court.
    7. Appeal and Error — Harmless Error — Improper Admission of Evidence. A judgment of conviction will not be reversed on appeal on the ground of the improper admission of evidence, unless, in the opinion of the court, after an examination of the entire record, it appears that there has probably been a miscarriage of justice or a substantial violation of a constitutional or statutory right guaranteed to the defendant.
    8. Homicide — Evidence Held to Sustain Conviction for Murder Without Daath Penalty. In a prosecution for murder, the evidence examined, and held sufficient to support a conviction without the death penalty, and that no prejudicial error was committed on the trial.
    Appeal from District Court, Craig County; A. -C. Brewster, Judge.
    W. Z. Graham was convicted of murder, and he appeals.
    Affirmed.
    See, also, 20 Okla. Cr. 51, 200 Pac. 878.
    James S. Davenport and O. L. Rider, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted of murder for having shot and killed A. W. Love, on the 5th day of August, 1921, and his punishment assessed at imprisonment for life at hard labor. He has appealed from the judgment rendered upon such conviction. The defense was justifiable homicide. The undisputed facts are as follows:

A. W. Love, deceased, and the defendant, W. Z. Graham, both lived in the town of Bluejacket, within a block of each other. A difficulty had arisen between them by reason of án alleged insulting remark made by the defendant to the wife of the deceased about four months previous to the homicide. On the morning of the day of the homicide, the defendant’s cow strayed into Mr. Love’s yard and Mrs. Love tied the cow to the henhouse. The defendant Graham appeared, and Mrs. Love refused to let him take, his cow. During the altercation that followed the defendant cut the rope and turned his cow loose. That forenoon Mr. Love, with his wife and Mrs. Drake, drove to Vinita in a Ford car. They returned to Bluejacket that afternoon about 3 p. m. A little later, as they crossed the main street’ going north, Mr. Love stopped the car, got out, and started toward the defendant, who was walking east on the south side of the main street. Mrs. Love, called her husband back, and he turned back, and then again walked towards the defendant. A few words were spoken, and the defendant shot A. W. Love, using a 38-caliber revolver. The bullet entered the cavity of the right eye and lodged near the back of the skull. Mr. Love staggered and fell unconscious. He was taken to the hospital at Miami, where he died about 9 o’clock that evening.

Mrs. Ozie Dake testified: That she went to Vinita with Mr. Love and his wife, arriving there about noon. That they returned to Bluejacket and stopped at Mr. Love’s blacksmith shop for about 30 minutes, and then went to Mr. Brookshires, a justice of the peace, where Mr. Love got out of the car, then came back and got into the car and returned to his blacksmith shop, leaving there they started to her place. That, as they crossed the main street going north, somebody hollered and Mr. Love stopped the car. That she looked back and saw Mr. Graham on the south side of the street. Mr. Love got out of the car and Mr. Graham told him to come over, he wanted to see him. Mrs. Love told him not to go, but tp come back, and he came back to them. Then Mr. Graham called again, and Mr. Love started walking towards him. Mr. Graham had his right hand in his pocket. He said something to Mr. Love that she did not understand, and Mr. Love said, “You are not fighting a woman this time; you are fighting a man.” Then Mr. Graham pulled a gun out of his pocket and shot Mr. Love. That they were 8 or 10 feet apart when the shot was fired. That Mr. Graham had on a blue shirt and overalls and was in his shirt sleeves, and Mr. Love had on just a white shirt and pants. That when the shot was fired Mr. Love staggered and fell. At that time Mrs. Love was almost to her husband and Mr. Graham said to Mrs. Love, “God damn you, stop, or I will shoot you,” and pointed the gun at her, and she fainted and fell.

Mrs. Love, widow of the deceased, testified; That she tied up a.stray cow that morning and shortly afterwards saw the defendant standing near her barn and she ordered him off the premises. He said he was going to take the cow and she told him to let the cow alone and he grabbed her by the arm, took out his knife, opened it, and cut the rope. That she grabbed the rope and he shoved her down and drove the cow away. That forenoon her husband drove her and Mrs. Dake to- Yinita, and they returned to Bluejacket in the afternoon. That she was in the back seat with Mrs. Dake, and as they crossed the main street at the bank corner her husband stopped the car, and the defendant said: “Gome here, Red, I want to see you.” That “Red” was a nickname for her husband, and her husband went halfway across the street, turned and came back towards the car, and the defendant called him again. Her husband started towards the defendant and said, “You are not fighting a woman this time,” and the defendant shot him with a revolver, which he pulled out of his front overalls pocket. That her husband threw up both hands just as he shot him. That she ran to him, saying, “My God, he has killed my Wess; ” and the defendant threw the gun on her and said, “Yes, and, God damn you, I will kill you.”

C. H. Orr testified that he was cashier of the Bluejacket Bank and was sitting in front of the bank when a Ford car stopped in the street and he saw Mr. Love get out and walk around the car; some one called him back and he turned around and went back and then started toward Mr. Graham who had stopped on the crossing; that Mr. Graham shot Mr. Love as he approached him.

Robert Hawkins testified: That he was standing in front of his place of business on the south side of Main street, and saw Mr. Love drive across the street and stop and get out of the car and start back across the street. Mr. Love turned, and went back to the ear and dropped something in, then started towards Mr. Graham and he was about 7 feet from him when Mr. Graham fired the shot.

A. J. Jones testified: That he saw Mr. Graham coming up the street, and saw the car cross the street, and next saw Mr. Love pass the lamp post in the middle of the street. He was swinging his arms, then both said something, he could not understand. When Mr. Love got something like 6 feet from him, Graham wheeled and fired a shot and Love fell. Mrs. Love ran to her husband. Mr. Graham turned back and said, “Hands off, I will attend to it,” and jerked his gun out and she fell over backwards. Then Mr. Graham walked on down the street.

D. M. Corbin testified: That he heard the shot fired, and ran out of his shop and saw Mr. Graham on the sidewalk. Mrs. Love said, “Oh, you have killed my Wess;” and Mr. Graham threw the pistol down on her and said, “Yes, and, God damn you, I will kill you,” and she dropped down on the ground. That he went to Mr. Love, and with others carried him over in the shade of the garage, and they searched him and found a knife in his pocket, a pocketbook, checkbook, and some other little trinkets.

Lula Ballard testified that she was the wife of A. D. Ballard, and identified the revolver offered in evidence as her husband’s gun that was taken from her place by Mrs. Graham, defendant’s wife, about 9 o’clock the morning of the day of the homicide.

On the part of the defense, William Odell testified that he was standing in front of the Davis grocery store, and saw Mr. Graham walking east, and saw Mr. Love stop his car on the north side of the street. Mr. Love got out of the car with something like a hammer in his hand and walked about 10 feet towards Mr. Graham, then turned back and put it in the car, then started back toward Mr. Graham; that Mr. Graham said something he did not understand, and Mr. Love asked him how he would like to fight a man, and Mr. Graham said, “All right,” and Mr. Love said, “You are not fighting a woman now;” that Mr. Graham had both hands in his pockets and Mr. Love had his right hand in his pocket; that he would judge they were between 6 and 8 feet apart when Mr. Graham fired the shot; that Mrs. Love was coming towards Mr. Lóve and Mr. Graham threw the gun on her and said, “and, God damn you, I will shoot you,” and Mrs. Love fainted.

E. A. Ragsdale testified that he was standing in front of Sabler’s garage, across Main street from the bank, and saw Mr. Graham coming from the west on the south side of Main street; that Mr. Love was crossing the street when he stopped the car on the north side, got out with a hammer in his hand and walked back about 10 steps, the women said, “Don’t take the hammer,” and he went back and put the hammer in the car, turned and came back south, walking towards Mr. Graham, and Mr. Graham turned and shot him.

Luther Overstreet testified that he saw Mr. Love drive across Main street, stop, get out of his car with a hammer, and walk out in the street. The women said, “Don’t take the hammer, bring it back.” Mr. Love laid it in the car, then went on across towards Mr. Graham, and asked him if he wanted to fight a man, and told him that he was not monkeying with a woman now, and Mr. Graham shot him. On cross-examination he said that as Mr. Graham came up the street his right hand was in his right overalls pocket, and he just whirled and shot; that Mrs. Love was coming across the street and Mr. Graham pulled the gun on her and said, “God damn you, stop, or I will shoot you, too,” and she fainted.

Wilber Wallace testified: That he was standing in Sab-ler’s garage and saw Mr. Love stop his car, get out and pick up a hammer and then put it back in the car. Mr. Graham was just passing in front of the garage. Mr. Love started across the street towards Mr. Graham, and when about 5 or 6 feet of him Mr. Graham shot him. That he did not hear what was said.

As a witness in his own behalf W. E. Graham testified:

“My cow was running loose in the yard, dragging a rope and she got away. I found her tied to Mr. Love’s henhouse. I started to untie her and Mrs. Love came running up to me. I asked her what the damage was for the cow, and she told me to get off her premises. I told her I would, but I wanted to take the cow with me. She struck me across the arm with the handle of a hammer; then I took it away from her. She was pulling on the rope, so I took my knife out and cut the rope between her and the cow. She grabbed the end that was to the cow. I hit the cow with the hammer. The cow broke and ran, and jerked her down. As I passed along the house I threw down the hammer. Something near an hour from that time I saw Mr. Love in front of my barn. He said not a word, but went straight up on Main street. Between 3 and 4 o’clock in the afternoon I saw him near the north side of Main street, and I was traveling east. He stopped his car and got out and hollered, 'Hold on there, Graham.’ He come over a little ways from the ear, west of the turn post, coming directly towards me in a real fast walk, and he said, ‘You beat my wife up this morning, you son of a bitch; I will let you try your hand on me,’ and ran up with his hand in his pocket and made a move with his arm. I thought he was going to draw a gun and I drew my gun and fired. There was a question in my mind but what he aimed to do me great bodily harm and shoot me was the idea I had about it. I did not say anything to him, or call him ‘Wess’ or ‘Ked.’ I never drew a gun on Mrs. Love. I found out that he had been trying to borrow a gun from the neighbors that morning. I learned it from Frank Haggerty, Prof. Edwards, and A1 KLmbel.”

On cross-examination he stated that he did not see Mr. Love have a hammer and did not see anything in his hands; that after he had shot her husband he told Mrs. Love she was the one that needed it, just for her aggravating this ease, and for pushing it onto him. Against the defendant’s objections he was asked questions and answered as follows:

“Q. Was the cow trouble the only trouble you have had? A. No, sir.
“Q. What was the other trouble? When did this trouble start between you and Mr. Love? A. Well, I will commence about the second week in February of this year. Mr. Love ¡old me there was lots of ducks down on Crow creek. I went down the creek, and I started through his lot, and somebody hollered at me. I went up to the south side of the house, to the window. Mrs. Love was there. She asked me some questions about her man, what he was doing, or how he was getting along. I told her he was at work most of the time. She was in a splendid humor, and I asked her if she was not feeling sporty. She wanted to know what I meant. I told her I really didn’t mean anything I reckoned; that I did not have the dictionary for jt. She took it as an insult, and I begged her pardon. She insisted on being mad, and I turned and walked away.”

On redirect examination, he testified that in March A1 Kimbel told him that Love was very mad at him, and that he was going to “hit me with a hammer if I passed his shop.” I asked Kimbel to see; Love and fix it np, and I would talk friendship, and he did, and with Kimbel I went down to Love’s shop the next morning, and we agreed, as the saying is, to bury the tomahawk, and it was all off, and we called it all off. Before Mr. Kimbel came there that evening, Prof. Edwards came down there and asked me if I realized that my life was in danger, and I told him- I had a tip- to that effect from Mr. Ragsdale. A. L. Edwards was at that time a teacher in the Bluejacket schools.

Lincoln Edwards testified that he had a conversation with A. W. Love in his blacksmith shop in March or April this year, and Mr. Love said that Mr. Graham was a damned old son of a b-, and that he was laying for him all day, and he was going to shoot him on sight, and that he would get him before the day was out. About half an hour later he met Mr. Graham, and told him what Mr. Love had said, and Mr. Graham asked him for his revolver, and he gave it to Mr. Graham. The next day Mr. Graham brought the gun back, and said he had settled the whole matter peacefully with Mr. Love.

Several witnesses qualified as character witnesses, and testified that the defendant’s reputation as to being a peaceable and law-abiding citizen was good.

The refusal of a continuance is assigned as error and relied upon for a reversal. "When the case was called for trial. November 28, 1921, the defendant filed a motion for continuance on account of the absence of Rube Jenkins, whose home was at Bluejacket, and who, if present, would testify that the deceased, A. W. Love, came to him on the morning of the day of the killing in the town of Bluejacket and wanted to borrow of him a pistol or gun, and stated that he was going to kill the son of a bitch before night, referring to the defendant; that said Jenkins communicated this statement to the defendant shortly before the killing; that he had caused a subpoena to issue to the sheriff of the county, and said sheriff was unable to make service upon the said Jenkins, for the reason that said Jenkins was and is at this time outside of the state; that this defendant has endeavored to ascertain where said Jenkins may be found, but was unable to do so, by reason, he believes, of the fact that the family of said Jenkins are hostile to this defendant and unwilling to give him said information.

Continuances ought always to be granted when, from the showing, justice requires it to be done to enable the defendant to procure all legal and competent evidence necessary for a' fair presentation of the defense, where due diligence to obtain the same has been shown. Here the case had been pending. for some time. The defendant had nearly four months from the time of his arrest in which to prepare for trial, and no special effort appears to have been made to find this absent witness. The granting of a continuance rests largely in the discretion of the trial court, and a refusal to grant a continuance will not constitute reversible error, unless there has been such an abuse of discretion as to deny the defendant a .substantial right. The record shows the alleged testimony of the absent witness to be merely cumulative. It follows that no error was committed in overruling the defendant’s motion for a continuance.

■A number of errors are assigned on rulings of the court in the admission and exclusion of certain evidence. Upon cross-examination of the witness Mrs. Dake, she was asked:

"Q. Mrs. Dake, have you ever been convicted of larceny in a court in the state of Oklahoma? •
"By Mr. Davis: The state objects as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“Mr. Rider: The defendant excepts. I think that is all this time, I may want to recall her for another matter.
“By the Court: All right.”

Our statute provides (section 585, Comp. Stat. 1921) that a witness may be discredited by showing his conviction of a criminal offense, and the court erred in sustaining the state’s objection. Key v. State, 10 Okla. Cr. 206, 135 Pac. 950. However, there is very little conflict in the. testimony of the witnesses for the state and those of the defendant in this case, and for this reason we think the error complained of is harmless. It is also shown by the record that no' predicate was laid to support this assignment. It is a well-settled rule that, when objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been if permitted to answer the question. White v. State, 4 Okla. Cr. 143, 111 Pac. 1010.

Complaint is made that the witness Mrs. Dake was permitted on her redirect examination to relate conversations had between witness and the deceased on the way to and returning from Yinita. It appears that upon her cross-examination the following questions were asked and answered:

“Q. Mr. Love was mad then, wasn’t he? He was mad at Mr. Graham, wasn’t he? A. I suppose he was; yes.
“Q. And he had been doing a great deal of talking about Mr. Graham that morning? A. Well, he had been talking on the way about him. He was talking about the trouble.
“Q. Wasn’t Mr. Graham practically the whole subject of your talk on the way to Yinita? A. Yes, sir; he was.
“Q. After you got back to the shop, Mr. Love kept talking about Mr. Graham? A. No; he did not; he was talking business then.”

On redirect examination, against the defendant’s objection, witness was asked, “what was that conversation about?” and answered:

“Well, he told me about Mr. Graham going to his house in the spring, and said he insulted his wife, and had a gun in his hands, and then kept talking on about the trouble they had had, and that he had tried to stay out of the way of it and keep this trouble down, and he said he moved out of Mr. Graham’s building to stop the trouble and keep out of it, and that he moved over there and then sent his wife away for a visit, and thought maybe, when she came back, they would be moved, and that there would be no more trouble. Then this trouble had come up, and that he did not know any steps to take, except just let the law take hold of it.”

To be admissible against one accused of murder, statements made by the deceased must be so immediately connected with the homicide as to be a part of the res gestae. It would be error to admit the testimony objected to as a part of the direct examination of the witness. Here, however, it appears that the defendant on cross-examination of the witness sought to show threats by the deceased. We think the state then had the right to show all of the conversation. If it was error, it was invited, and the defendant cannot be heard to complain. Valentine v. State, 16 Okla. Cr. 76, 194 Pac. 254, and cases cited.

It is also contended that the court erred in permitting the prosecuting attorney to cross-examine the defendant upon matters to which he made no reference in his direct examination, and upon subjects and in a manner prejudicial to the defendant’s rights; that this testimony related to a previous difficulty, not with the deceased, but with the wife of the deceased, and the defendant was not on trial for an assault on her, and must have been introduced for the sole purpose of degrading the defendant. The rule obtains in this jurisdiction that a defendant taking the witness stand and testifying in his own behalf, may be cross-examined the same as any other witness. He, like any other witness, may be asked questions pertaining to the matter at issue or that would go to his credibility as a witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may bo asked questions irrelevant and collateral to the issue for the purpose of testing his memory, affecting his credibility and the weight of his testimony.

In Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132, it is said:

“The doctrine that a witness may be cross-examined as to matters going to credibility may well be regarded as an exception to the rule that cross-examination is to be confined to matters touched on in the examination in chief, and the limits within which either party may cross-examine upon matters not strictly relevant, but which affect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.”

It is a general rule that evidence of other offenses is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. This rule is so well established that citation of authorities in its support is unnecessary, but certain exceptions to it are equally well established. One of which is that where such evidence directly tends to prove some material element of the crime charged, it may be admitted. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807.

Another well-settled rule is that any previous act of the defendant may be admitted in evidence against him provided that it has any logical or legal tendency to prove any matter which is in issue. The general principle is thus tersely stated by Cushing, Chief Justice, in State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69:

“Any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue.”

The defendant in his direct examination referred to his relations with the deceased following his misconduct towards the wife of the deceased, and offered proof of numerous threats made by the deceased against him based on that occurrence. We think the evidence oh cross-examination of the defendant was properly admitted as tending to show the relations existing between him and the deceased, to show the state of feeling between them, and to show the defendant’s state of mind towards the deceased at the time of the killing.

It is also urged that the court erred in permitting the wife of the deceased to testify that he left surviving him three children, aged seven, six, and two years. We think it may be said in sound reason that evidence of this kind tends to show that the defendant, having a family, would naturally exercise more caution before entering or provoking a serious difficulty, and that this evidence was properly admitted.

Exceptions to the refusal of the court to give certain instructions requested by the defendant and exceptions taken to the instructions given by the court are called to our attention and urged as error. It appears that the court by its instructions submitted the issue of murder, manslaughter in the first degree, and the law of justifiable homicide in self-defense. A careful examination of the charge of the court shows that the jury were fully instructed upon every phase of the ease. It follows that the instructions requested were properly refused.

Finally it is insisted that the verdict is not sustained by the evidence, in that the testimony of the defendant shows that he honestly believed that he was in danger of losing his life or receiving great bodily harm when he fired the fatal shot. The right to take another’s life in self-defense is not to be tested by the honesty or good faith of the defendant’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief. Carefully considering the whole testimony, we feel constrained to say that there is not a single extenuating feature in this case. On the contrary, the defendant’s entire conduct, from beginning to the end, shows “a heart regardless of social duty and fatally bent on mischief.” In our opinion the verdict is amply supported by the evidence.

It may be observed here that it is as true now as it was in the days of the Hebrew prophet that he who sows the wind must needs be content if he be compelled to reap the inevitable whirlwind.

The judgment of the lower court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    OTTO HUFFMAN v. STATE.
    No. A-4616.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 296.)
    (Syllabus.)
    Appeal and Erroi — Absence of Briefs — Affirmance. On appeal by duly certified transcript of the record, where no briefs are filed, this court will make an examination of the information, instructions excepted to, and the judgment, and, if no error is apparent, will affirm the case.

      Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Otto Huffman was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, Otto Huffman, was convicted on a charge that he did have in his possession about two gallons of whisky, with intent to violate provisions of the prohibitory liquor law, and his punishment fixed at a fine of $500 and confinement for 30 days in the county jail. Prom the judgment rendered on the verdict he appealed, by filing in this court, on March 27, 1923, a petition in error with duly certified transcript of the record proper.

No brief has been filed and no appearance made on behalf of plaintiff in error in this court. When the case was called for final submission, it was submitted on the record. We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the lower court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    ROBERT BERG et al. v. STATE.
    No. A-4681.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 296.)
    (Syllabus.)
    Indictment and Information — Prosecutions Only by Indictment or Information. Prosecutions for crime in courts of record must be either by indictment or information.

      Appeal from County Court, Pawnee County; L. N. Kimrey, Judge.
    Robert Berg and another were convicted of a violation of the prohibitory liquor law, and they appeal.
    Reversed.
    Prentiss E. Rowe, for plaintiff in error.
    George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were convicted on a charge, that they did sell, to one Walter Gibson, whisky; the punishment of the defendant Robert Berg being fixed at confinement in the county jail for 120 days, and a fine of $200, and the punishment of Bay Berg being fixed at confinement in the county jail for 60 days, and a fine of $100. To reverse the judgments rendered in accordance with the verdict, they have appealed to this court.

The Attorney General has filed the following confession of error:

“Comes now the state of Oklahoma by George F. Short, Attorney General, and in the above-entitled cause confesses error, in that said action was instituted in the county court of Pawnee county, and there tried upon a duly verified complaint, contrary to the provisions of section 17, art. 2, of the Constitution of the state of Oklahoma, which provides, ‘No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information, ’ and contrary to the holding of this honorable court in the case of Morgan v. State, 15 Okla. Cr. 158, 175 Pac. 625, wherein the court held: ‘Prosecutions for crime in courts of record must be .either by indictment or information.’ While a verified complaint filed in the court of record may be sufficient to authorize the issuance of a warrant of arrest for the person accused, it is not sufficient as an accusation upon which a criminal trial may be based in courts of record. A plea of not guilty to a verified complaint in a court of record presents no issue for the court to try.”

The Constitution (article 2, § 17) provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.”

Under this provision of the Constitution the confession of error is well founded.

The judgments of the lower court are accordingly reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    TOM HALFMOON v. STATE.
    No. A-4650.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 294.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Insufficient to Sustain Conviction of Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence examined, and held insufficient to support the verdict and judgment of conviction.
    Appeal from County Court, Washington County; Bobert D. Waddill, Judge.
    Tom Halfmoon was convicted of a violation of the prohibitory law, and he appeals.
    Beversed.
    J. C. Daugherty, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that the defendant, Tom Halfmoon, on or about the 7th day of February, 1922, did “have possession of certain spirituous, vinous, fermented, malt, and intoxicating liquors, to wit, 60 gallons of mash, said mash being then and there a liquid capable of being used as a beverage and containing more than one-half of one per cent, alcohol, measured by volume, with the unlawful intent then and there on the part of him, the said Tom Halfmoon, to sell, barter, give away, exchange, or otherwise furnish the same, contrary to,” etc.

Upon his trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at confinement for 30 days in the county jail and a fine of $50. He has appealed from the judgment rendered upon such conviction. The errors assigned question the sufficiency of the evidence to support the verdict.

The evidence for the state shows that four officers went to the home of the defendant and found two barrels in the cellar of his smokehouse containing about 60 gallons of what they termed mash; that they took a fruit jar full of the liquid from each barrel.

M. M. Becker testified that he was chemist at the Dewey Portland Cement Plant, and received from the officers two jars, and made an immediate analysis of the two jars separately, and found 5.25 per cent, of alcohol in one jar and 3.99 per cent, of alcohol in the other jar; that he obtained this result by a distillation. No witness for the state testified that the liquid or the so-called mash was capable of being used as a beverage. '

At the close of the state’s evidence there was a motion by the defendant for a directed verdict on the ground that the evidence was insufficient to sustain a conviction, and because there was no evidence to show that the liquid was capable of being used as a beverage, which motion was overruled and exception allowed.

As a witness on bis own bebalf, Tom Halfmoon testified that he lived with his family on the place eight years; that when the officers, came there hev.had -22 hogs; that the two barrels contained slop for his hogs, which was made of chops and water, which he had placed in the cellar so if would not freeze; that he did not use or intend to use the slop to violate the liquor laws. At the close of the testimony the defendant renewed his request for a directed verdict of acquittal.

The information was evidently drawn under section 7002, Comp. Stats. 1921, as section 1, chapter 42, Session Laws 1923-24, making it unlawful “to manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation,” was not in effect when this prosecution was instituted.

An essential element of the offense charged was that the liquid as alleged “was capable of being used as a beverage.” 'There being no evidence to show or tending to show this essential element of the offense, the motion to direct a verdict should have been sustained.

Because the evidence is insufficient to sustain the verdict, the judgment is reversed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    GUY GRUB v. STATE.
    No. A-4689.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 1117.)
    Appeal from County Court, McCurtain County; T. G. Carr, Judge.
    Guy Grub, convicted of selling intoxicating liquors, appeals.
    Affirmed.
    H. P. Hosey, for plaintiff in error.

      The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Gny Grub, was convicted on a charge that "he"did sell about one-half gallon of whisky to one Luía Valentine, and his punishment fixed at confinement for 30 days in the county jail and a fine of $100. He has appealed from the judgment rendered upon such conviction. No brief has been filed and no appearance made on behalf of appellant in this court. When called for final submission the case was submitted on motion of the Attorney General to affirm the judgment for failure to prosecute. We have examined the record, and find that there is evidence sufficient to support the judgment, and there being no apparent error warranting a reversal, the judgment is affirmed.


text:
    E. E. HAMPTON v. STATE.
    No. A-4705.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 1117.)
    Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren, Judge.
    E. E. Hampton was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Appeal dismissed.
    Guy Wilson and Ingraham & Bicking, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, E. E. Hampton, was convicted in the municipal criminal court of the city of Tulsa on a charge that he did have in his possession one gallon of corn whisky with intent to violate the prohibitory liquor laws of the state. Upon his trial the jury returned a verdict finding him guilty and fixing his punishment at confinement for 90 days in the county jail and a fine of $250. From the judgment rendered in accordance with the verdict an appeal was taken by filing in this court on May 22, 1923, a petition in error with case-made. No brief has been filed and no appearance made on behalf of the appellant in' this court. An examination of the record discloses that it fails to contain a copy of the judgment and sentence. Evidently this appeal has been abandoned. The appeal herein is therefore dismissed, and the cause remanded to the trial court, with direction to carry its judgment and sentence into execution.


author: PEB CUBIAM.

text:
    L. C. MONTGOMERY v. STATE.
    No. A-4641.
    Opinion Filed Nov. 25, 1924.
    (230 Pac. 1118.)
    Appeal from County Court, Custer County; E. J. Lind-ley, Judge.
    Affirmed.
    A. E. Darnell, for plaintiff in error.
    The Attorney General, for the State.
   PEB CUBIAM.

Plaintiff in error, L. C. Montgomery, was convicted on a charge that he did have in his possession 2% gallons of whisky with intent to sell and convey the same, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in the county jail and to pay a fine of $50. He has appealed from the judgment rendered upon such conviction. The errors assigned question the sufficiency of the evidence to sustain the verdict. No brief has been filed on behalf of the plaintiff in error, and the cause was submitted on the motion of the Attorney General to affirm the judgment for failure to prosecute. We have examined the record, and find that the evidence is sufficient to sustain the verdict, and, there being no apparent error warranting a reversal, the judgment is affirmed.


author: BESSEY, J.

text:
    GROVER C. BLACKBURN v. STATE.
    No. A-4237.
    Opinion Filed March 15, 1924.
    Rehearing Denied Nov. 29, 1924.

      (230 Pac 276.)
    (Syllabus.)
    1. Intoxicating Liquors — Instruction on Unlawful Possession Approved. Held, that the instruction complained of as modified ' and given was proper under the evidence.

      2. Evidence — Self-Serving Declarations Made After Seizure Inadmissible. It was not error to exclude certain declarations of a witness, made some time after the seizure of the liquor by virtue of a search warrant, since such declarations were not a part of the res gestae, were self-serving, and were not admissible for any purpose.
    Appeal from County Court, Caddo County; C. B. Case, Judge.
    Grover C. Blackburn was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    See, also, 26 Okla. Cr. 268, 224 Pac. 208.
    C. H. Carswell, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

By a verdict of a jury rendered on the 6th day of December, 1921, plaintiff in error was found guilty of having had unlawful possession of 11 gallons of whisky on the 9th day of April, 1921. The court, in rendering judgment on the verdict, fixed the punishment at a fine of $50 and confinement in the county jail for a period of 30 days.

The record shows: That three peace officers went to the home of plaintiff in error, armed with a search warrant. That in searching the premises they found whisky in one of the rooms of the residence. They found some more under the house, concealed under a wagon sheet, and they found four barrels of mash in a storm cave nearby. The accused had been away from home the evening before and claimed that the whisky and mash had been brought there in his absence, without his knowledge or consent, by a neighbor who was moving his effects from the neighborhood. This neighbor and another were present, or nearby, when the search was made. Accused claimed that he had no connection in a criminal way with the possession of the liquor.

After the cause was submitted to the jury, plaintiff in error requested the court to give an instruction as follows:

“The jury is further instructed, that if you find from the evidence in the case that one Arch McCart left the whisky referred to in the information at the residence of the defendant during his absence from home, and without the knowledge . or consent of the defendant, such possession by the defendant would not be unlawful.”

The court modified this proffered instruction by inserting the words “directly or indirectly,” making that part of .the instruction read, “without his knowledge or consent, directly or indirectly.” The accused claims that the instruction as given was unfair. The jury might have fairly deduced from the evidence that his neighbor had placed this whisky upon the premises with the consent of the accused, express or implied, so- that the modification of this instruction was justified. •

Plaintiff in error complains further that the court erred in excluding evidence of certain declarations of this neighbor, when he came to the premises after the officers had seized the whisky. ' These declarations were not admissible under established rules of evidence as part of the res gestae, or for any other purpose. If the accused desired to establish the fact, if indeed)' it was a) fact, that the whisky was brought to his premises by this neighbor without his knowledge or consent, he should have produced the witness himself or at least have made some effort to do so.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


author: MATSON, P. J.

text:
    CARL SCHIFFNER v. STATE.
    No. A-4402.
    Opinion Filed April 14, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 274.)
    (Syllabus.)
    1. Larceny — Allegation that Taker Intended to Deprive Owner of Use of Property Sufficient. In the general larceny statute, it is not necessary to allege and prove an intention to deprive the owner of the use of the property and an intention to convert it to the taker’s own use Any trespass against the property of another, made with intent to deprive another of such property, is larceny under the general statute. An allegation that the taker intended at the time of the taking to deprive the owner of the use of the property, while unnecessary under the general larceny statute, is sufficient to meet its requirements..
    2. Same — Informationi Charging Grand Larceny Held- Sufficient. Por information held sufficient to charge the crime of grand larceny, see body of opinion.
    3. Trial — Prosecuting Witness Without Authority to Control Prosecution. The prosecuting witness is without authority to control a criminal prosecution or to make any binding agreement with the defendant in reference thereto.
    4. Appeal and Error — Lack of Exceptions to Instructions — Review. Where the record shows no objection or exception to giving of an instruction, such instruction will not be examined by this court for the purpose of discovering other than fundamental errors.
    Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.
    Carl Schiffner was convicted of grand larceny, and he appeals.
    Affirmed.

      I. H. Lookabaugh, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court of Blaine county, wherein on the 13th day of January, 1922, plaintiff in error was convicted of the crime of grand larceny and sentenced to serve a term of three years’ imprisonment in the state penitentiary. An appeal was taken to this court by filing herein on July 10, 1922, a petition in error with case-made attached. The assignments of error relied upon are: First, that the court erred in refusing to allow the plaintiff in error to withdraw his plea of not guilty for the purpose of filing a motion and demurrer to the information; second, that the court erred in overruling the objection of the plaintiff in error to the introduction of any evidence under the information filed, for the reason that the same failed to state facts sufficient to constitute a public offense; third, that the court erred in giving instruction No. 8 over the objection and exception of plaintiff in error; fourth, that the court erred in overruling the motion in arrest of judgment.

The first, second, and fourth assignments of error may be treated together. The refusal of the trial court to permit the plaintiff in error, defendant below, to withdraw his plea of not guilty for the purpose of demurring to the information, and the overruling of the motion in arrest of judgment, as well as the overruling of the objection to the introduction of evidence because of the insufficiency of the information to state a crime against the defendant, would apparently each and all be without merit if the information upon which the defendant was tried and convicted is sufficient to withstand a demurrer for want of sufficient facts to charge the crime of grand larceny.

The charging part of the information is as follows:

"In the name and by the authority of the state of Oklahoma ; now comes Benn Smith, county attorney, in and for the state and county aforesaid, and gives the court to know and be informed that one Carl Schiffner and Charles Berry, late of the county of Blaine and state of Oklahoma on the 20th day of October, in the year ofj our Lord, one thousand nine hundred and twenty-one at and within the said county and state did then and there, unlawfully, willfully, and intentionally, knowingly, wantonly, maliciously, and feloniously commit the crime of grand larceny, as follows: That he, the said Carl Schiffner, and he, the said Charles Berry, did then and there unlawfully, willfully and feloniously steal, take, and carry away, by stealth, 100 bushels, of wheat, of the value of $80. Said wheat then and there being owned by, and in the lawful possession of one Solomon Kline, a person then and there being, and he, the said Carl Schiffner, and he, the said Charles Berry, did then and, there, without the knowledge or consent and against the will of him, the said Solomon Kline, steal, take, and carry away said wheat, unlawfully and willfully and with the felonious intent to deprive the said owner of the use and benefit of said wheat and to convert same to their own use and benefit, contrary to the form of statute in such ease made and provided and against the peace and dignity of the state.”

Larceny is defined by section 2101, Compiled Statutes 1921, as follows:

"Larceny is the taking of personal property accompanied by fraud or stealth, and With intent to deprive another thereof.”

It is contended that the information in this case is insufficient to charge larceny in that it only charges against the defendant an intention to deprive the owner of the use of the property, and an intention to convert it to the use of the taker.

In Hughes v. Territory, 8 Okla. 28, 56 Pac. 708, the Supreme Court of Oklahoma said:

“The Legislature has modified the meaning of the word 'larceny/ as used in the Crimes Act, so that the taking, of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker.”

The definition of larceny at the time of the rendition of the opinion in Hughes v. Territory, supra, was the same as it is now.

In Sullivan v. State, 7 Okla. Cr. 307, 123 Pac. 569, citing Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, this court said:

“Any trespass, involving the taking of personal property, aeqompanied with an intent to deprive another thereof, is larceny. ’ ’

In the latter case the court was distinguishing between the general statute defining larceny and the special statute defining the stealing of live stock, and distinguishing between the two statutes and the necessary allegations to support a conviction for larceny of live stock.

In the general larceny statute, it is not necessary to allege and prove an intention to deprive the owner of the use of the property, and intention to convert it to the taker’s own use. Any trespass against the property of another, made with intent to deprive another of such property, is larceny under the general statute. The information in this case is amply sufficient to charge the crime of larceny under the modified statute of this state. The allegation that the taker intended at the time of the taking to deprive the owner of the use of the property, while unnecessary under the general statute, is sufficient to meet its requirements. State v. Lawler, 220 Mo. 26, 119 S. W. 639.

Further it is contended that the trial court erred in giving instruction No. 8 over the objection and exception of plaintiff in error. Instruction No. 8 is as follows:

“You; are instructed that the prosecuting witness, Solomon Kline, was without any authority to control the prosecution in this case or to make any agreement in reference thereto, and if you find the said Kline made any such agreement it was illegal, not binding on the state and constitutes no defense to the crime charged in this action.”

The defendant introduced some evidence to the effect that the prosecuting witness entered into an agreement with him to dismiss the prosecution, provided the defendant would return the stolen property. The prosecuting witness denied any such agreement. Had such an agreement been made it was not binding on the state as the jury werej told by the court in instruction No. 8, and such agreement constituted no defense to the crime charged. The instruction was a correct statement of the law, and the record further shows that no objection was made to the giving of it, and no exception taken to the giving of the instruction at the time it was given. Under the state of the record, as to this assignment no question is properly presented which would require this court even to review the alleged error.

This is a conviction wherein the. plaintiff in error was clearly proven to be guilty of the offense charged. In addition; to the circumstantial evidence offered by the state, the defendant confessed his guilt of the crime on the day following its commission, and subsequently thereto pleaded guilty to the offense at the time the preliminary examination was held. Further, he made restoration of the stolen property. The defense interposed was an alibi. It was for the jury to decide the conflicts in the evidence. Suffice it to say that, if the state’s evidence was believed, it is amply sufficient to sustain the verdict and judgment.

Finding no reversible error in the record, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    WALTER LAMB v. STATE.
    No. A-4614.
    Opinion Filed Oct. 13, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 274.)
    (Syllabus.)
    Appeal and Error — Judgment Supported by Material Testimony not Disturbed. The determination of questions of fact are exclusively for the jury, and, when the record discloses material testimony to support the conclusion reached, the judgment will not be reversed in the absence of prejudicial error.
    Appeal from County Court, Murray County; W. C. Long, Judge.
    Walter Lamb was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.
    Homer T. Carney, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Walter Lamb was convicted on a charge that he did have in his possession about five and one-half gallons of whisky with intent to sell the same, and his punishment fixed at a fine of $150 and confinement in the county jail for 60 days. The errors assigned question the sufficiency of the evidence to sustain the verdict.

The undisputed facts are that the defendant on the date alleged drove from his home in Pontotoc county to the town of Davis in a Ford truck, arriving about the noon hour. The officers testified that he found twelve half gallon fruit jars containing whisky in the car, and proceeded np to the restaurant where the defendant was eating dinner, and arrested him ; that the defendant admitted the whisky belonged to him.

As a! witness in his own behalf the defendant denied stating to the sheriff that he owned the whisky; that he drove to town from his home near Roff, Pontotoc county, with his wife and children in the ear, and left his car standing near his mother-in-law’s, Mrs. Ellis’, in the town of Davis, and that there was no whisky in it at that time; that he left the car, going to the restaurant for his dinner, and in about 30 minutes the officer walked in and arrested him, stating that he had found the whisky in his car.

The only question presented in the case was a question of fact exclusively for the determination of the jury.

Upon an examination of the record we find no material error. The judgment is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    L. H. HUFFMAN v. STATE.
    No. A-4527.
    Opinion Filed Sept. 27, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 272.)
    (Syllabus.)
    1. Venue — Refusal of Change of Venue Based on Prejudice of People Held not Erroneous. On a motion for a change of venue on the grounds of the prejudice and passion of the people against the accused, due to inflammatory declarations made from the pulpit and statements contained in the public press, where such application is supported and resisted by scores of affidavits, under the circumstances in this case the court did not abuse his discretion in denying the application.
    2. Poisons — Burden on Accused to Show He Comes Within Negative Exception of Narcotic Drug Law — Instruction Held Proper. The negative exception in our narcotic drug statute, section 8887, C. S. 1921, permitting a physician when it appears necessary to administer narcotics to a drug addict for purposes of reformation, or in accordance with recognized medical methods, places the burden of prooij upon th& accused to show that he comes within such exception.
    (a) The instructions on that point examined, and held sufficient.
    3. Same — Whether Administration of Narcotic Drug Was According to Recognized Medical Practice Held for Jury. Where the accused admits that he sold morphine tablets to a known drug addict to be carried away and used in any manner agreeable to the addict, it raises an issue of fact for the jury as to whether such administration is according to recognized medical practice.
    4. New Trial — Newly Discovered Evidence — Motion Properly Denied. The motion for a new trial on the ground of newly discovered evidence was properly denied, for reasons stated in the opinion.
    Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.
    L. H. Huffman was convicted of unlawfully administering a narcotic drug to a drug addict, and he appeals.
    Affirmed.
    Geo. L. Zink and Rummons & Hughes, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

L. H. Huffman, a physician, defendant in the trial court, was in the district court of Kiowa county, on the 22d day of June, 1922, by a verdict of a jury, found guilty of administering and furnishing narcotic drugs to a person addicted to the morphine habit. The court rendered judgment upon the verdict, fixing the punishment at confinement in the penitentiary for a term of one year and a fine of $500.

This prosecution was had under section 8887 of the Compiled Oklahoma Statutes 1921, commonly known as the narcotic drug statute. The facts disclosed by the evidence show that in the summer and fall of 1921 Dr. Huffman, the defendant, was the proprietor and owner of a hospital in Hobart, and that he there employed Charles Gerkin, a painter and well-known drug addict, to paint and decorate the inside of his hospital, and had an agreement with Gerkin that for this service the defendant would treat Gerkin for his morphine habit. The defendant’s testimony shows that Gerkin worked for him at intervals covering a period of about four weeks, during which time the defendant from time to time gave Gerkin morphine in an effort to cure him of his habit in the manner commonly known as the “reduction method.” Defendant said that he could not control Gerkin and that many times during this period Gerkin would leave the hospital and go to other places to procure morphine and then return in a nervous, debauched condition. Gerkin finally left and was gone for some months. Upon his return in February, 1922, Gerkin went to the defendant’s office to procure some morphine. A condensed statement of a portion of defendant’s testimony is as follows: Defendant asked Gerkin how he was getting along; Gerkin replied, “Not very good.” After some preliminary conversation, Gerkin said, “I am feeling tough.” That at this time Gerkin was moving restlessly about the office, shifting from one position to another, shaking, his shoulders and picking at his clothing, and acting generally as is characteristic of drug addicts when wanting the drug. Gerkin said to defendant, “I want a shot.” Defendant replied, “I don’t like to give you any because we made a trade last fall for treatment and you absolutely refused to let me help you, and I’m not going to give you morphine unless I know there is some benefit coming from it.” Gerkin replied that he was sorry he had disobeyed instructions and promised that if the defendant would help him, out this time he would make another effort to straighten up. Finally, the defendant agreed to give Ger-kin some morphine and delivered to him three morphine tablets of a quarter grain each. Gerkin laid three $1 bills on the table, picked up the morphine tablets, and carried them away with him. Presently some of the local officers and a federal narcotic agent came into the defendant’s office and placed the defendant under arrest. According to previous arrangements, Gerkin had delivered to these officers the morphine obtained from the defendant. The officers recovered from the defendant the three $1 bills given him by Gerkin, these bills having been previously marked by them for identification. They later made a search of defendant’s safe and recovered 20 grains of morphine.

In this appeal the defendant by his counsel urges that this judgment should be reversed:

First. Because the court overruled the motion of the defendant for a change of venue.

Second. For alleged erroneous instructions to the jury.

Third. That the evidence is insufficient to support the verdict.

Fourth. Befusal of the court to grant a new trial on the ground of newly discovered evidence.

In his motion for a change of venue the defendant set out that some person or persons had distributed morphine to some of the boys and girls attending high school; that an evangelist who was holding protracted meetings there had denounced those who were responsible for this distribution, including, by inference, this defendant; that the newspapers throughout the county had contained inflammatory articles reflecting on the defendant; that the minds of the people were, for these and other reasons, so inflamed and prejudiced against the defendant that he could not have a fair trial in Kiowa county. The county attorney resisted this application for a change of venue by scores of affidavits tending to show that there was no such general prejudice against the defendant as would prevent his having a fair trial there.

The court refused the application for a change of venue. Upon the showing and counter showing made the court did not abuse his discretion in denying the defendant’s application. The statements made by the evangelist and those published in the papers were such as would naturally shock the sense of justice, decency, and good order of the good people who heard or read them, but it does not necessarily follow that these people would prejudge the defendant or deny him a fair hearing. Doubtless, too, there were numbers of people who did not hear the statements made by the evangelist or read the newspaper denunciations of which complaint is made. Moreover, common experience had taught the public the danger of accounting as true every declaration made from the pulpit or every statement made in contributions appearing in the public press. Frequently the members of this court are amazed when they read newspaper accounts of the judicial proceedings of this court which in fact never took place.

The subsequent proceedings in the trial court in this case indicate that the defendant was not by reason of passion or prejudice prevented from having a fair trial.

The defendant next complains of certain instructions of the court relating to the evidence and the burden of proof of negative exceptions of the statute upon which this prosecution was based, section 8887, Comp. Stat. 1921, a portion of which is as follows:

“It shall * * be unlawful for any physician, dentist or veterinary surgeon to prescribe or administer, in any form whatsoever, any of the said narcotic drugs to any person addicted to the habit of using such narcotic drugs, or to habitually prescribe or administer, * * * any of said narcotic drugs to any person, unless and except in those cases and instances in which,; according to the recognized practice of the medical profession, it shall bet necessary to administer the same in the treatment of such narcotic habit for the reformation and relief of the patient from such habit.”

Instructions Nos. 5 and 6 given by the court were as follows :

“You are-instructed that in this case the burden is on the state to prove to your satisfaction beyond a reasonable doubt that the defendant, in this county and state, on or about the date charged in the information, did administer a narcotic drug, to wit, morphine, to the prosecuting witness, Charles Gerkin, and that the said Charles Gerkin was then and there a person addicted to the habit of using such narcotic drug, and that the said L. H. Huffman was then and there a physician duly licensed' under the laws of Oklahoma for the practice of medicine in the county of Kiowa and state of Oklahoma and engaged in the practice of medicine in said county. And the burden is on the defendant to prove that it was necessary to administer the said narcotic in the treatment of such narcotic habit for the reformation and relief of the said Charles Ger-kin, and that the administering of such narcotic was according to the recognized practice of the medical profession. ’ ’
“You are instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant in this county and state, on or about the date charged in the information, did administer a narcotic drug, to wit, morphine, to the prosecuting witness, Charles Gerkin, and that the said Charles Gerkin was then and there a person addicted to the habit of using such narcotic drug, and that the said defendant was then and there a physician duly licensed under the laws of Oklahoma for the practice of medicine in this county and engaged in such practice, then it will be your duty to return a verdict of guilty of unlawfully administering a narcotic drug, unless you shall further find that the administering of said narcotic drug by the defendant to the said Charles Gerkin was necessary in the treatment of the narcotic habit of the said Charles Gerkin for his reformation and relief and was according to the recognized, practice of the medical profession, in which case your verdict should be not guilty. But if upon consideration of all the evidence, facts, and circumstances in the case you are not convinced beyond a reasonable doubt of the guilt of the defendant of the charges contained in the information, it will be your duty to acquit the defendant.”

The defendant himself admitted that he administered the morphine to Gerkin, admits that Gerkin was a morphine addict, and described the manner and circumstances of its delivery and the reasons therefor, which makes the question of the burden of proof of whether its administration was necessary according to recognized medical practice of little importance. The defendant’s own. testimony indicates that it was not so administered. Be this as it may, the physician who administers the drug is better able than any other person to testify on this point. He it is who makes the diagnosis of the case and observes the needs of the patient, and the burden is properly imposed on him to show that it was necessary, thus bringing himself within the exception named in the statute providing that the law should be inoperative as against a physician who administers the narcotics where it is necessary according to established medical practice. One of the provisions of this statute is that it shall not be necessary for the state to negative any of the matters stated in the exceptions. For a fuller discussion of this point, see Stout v. State, 26 Okla. Cr. 390, 224 Pac. 375. The burden of justifying by reason of the exceptions is on the defendant. Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611, 139 Am. St. Rep. 918; State v. Shafer, 15 Okla. Cr. 610, 179 Pac. 782; Annotations on Harrison Narcotic Act, 13 A. L. R. 874; 14 R. C. L. 188.

Upon the question of the sufficiency of the evidence, it, appears to us that the evidence of the defendant alone is sufficient to support the verdict.

The defendant claims a new trial should have been granted him on the ground of newly discovered evidence. A showing was made that certain reputable witnesses would testify that the drug addict, Gerkin, conspired with others to bring about this prosecution for the purpose of extorting money from the defendant. But even conceding that Gerkin was a morally depraved drug addict, a blackmailer, and wholly unworthy of belief, and that he instituted this prosecution with malice, all that would not excuse the defendant in administering morphine to a known drug addict when not in the course of his treatment for relief from the habit and not in accordance with recognized medical practice as authorized by law.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    G. W. WILLIAMS v. STATE.
    No. A-4607.
    Opinion Filed Oct. 9, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 1118.)
    Appeal from County Court, Roger Mills County; E. E. Tracy, Judge.
    G. W. Williams was convicted of manufacturing whisky, and appeals.
    Affirmed.
    A. J. Welch, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case jointly charged G. W. Williams and Whitt Cowart, Tom Brinkley, and Reuben Brinkley with unlawfully manufacturing five gallons of whisky. Upon the trial the jury returned their verdict finding the defendants G. W. Williams and Whitt Cowart guilty as charged in the information, and leaving their punishment to the court, and, rendering judgment on the verdict, the court sentenced the defendant G. W. Williams to be confined in the county jail for 90 days and to pay a fine of $500. From the judgment rendered on the verdict against the defendant G. W. Williams, he appealed by filing in this court on March 23, 2923, a petition in error, with transcript of the record. No briefs have been filed, and when the case was called for final submission no appearance was made for oral argument. The Assistant Attorney General in open court moved an affirmation, on the ground that the appeal had not been properly prosecuted and had been abandoned. The motion is sustained. The judgment of the lower court is affirmed. Mandate forthwith.


text:
    JACK TREADWAY v. STATE.
    No. A-4510.
    Opinion Filed Sept. 18, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 271.)
    (Syllabus.)
    Sufficiency of Evidence. In a prosecution for grand larceny, evidence considered, and held sufficient to sustain the verdict and judgment of conviction.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Jack Treadway was convicted of grand larceny, and he appeals.
    Affirmed.
    P. A. Gavin, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Jack Treadway, was convicted of grand larceny, and his punishment fixed at five years in the penitentiary. He has appealed from the judgment rendered upon such conviction, but no brief has .been filed and no appearance made on behalf of plaintiff in error in this court.

The information charges the defendant with the larceny of one buffet, one kitchen cabinet, one duofold, two gas heaters, one cedar chest, and two stove boards, of the total value of $279.50, the personal property of T. Elmer Harbour, doing business as the Harbour Furniture Company. The evidence on the part of the state is undisputed, and tends to prove every material allegation of the information. The defendant did not testify.

The errors assigned question the sufficiency of the evidence to sustain the conviction. After a careful reading of the record, we see no reason to doubt that this conviction was not justified by the evidence. In fact, the testimony is so conclusive as to the guilt of the defendant that nothing can be said in his defense, and our conclusion is that the verdict was as favorable to the defendant as the law and the testimony warranted.

The judgment of the lower court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    THOMAS KEARLEY v. STATE.
    No. A-4672.
    Opinion Filed Nov. 29, 1924.
    (230 Pac. 1117.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Thomas Kearley was convicted of manufacturing intoxicating liquor, and he appeals.
    Appeal dismissed.
    Mathers & Coakley and R. C. Roland, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Thomas Kearley, was convicted on a charge of manufacturing certain intoxicating liquor, to wit, Choc beer, and in accordance with the verdict was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. The judgment was rendered January 8, 1923. The petition in error and case-made were filed in this court on May 8, 1923. The Attorney General has filed the following motion to dismiss the appeal: “Comes now George F. Short, the duly qualified and acting Attorney General of the state of Oklahoma, and moves this honorable court to dismiss the above-styled cause of action, for the reason that same was not filed within the statutory period of time allowed for such purpose. It appears from the record that the judgment and sentence was rendered on January 8, 1923, and the record filed in this court on May 8, 1923, which is 121 days after the date of judgment and sentence, and it further appearing that no extension of time was granted.” For the reason therein stated, the motion to dismiss the appeal is sustained, and the appeal is accordingly dismissed.


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    OSCAR BRISCOE v. STATE.
    No. A-4552.
    Opinion Filed Nov. 15, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 520.)
    (Syllabus.)
    Continuance — Discretion of Court — Denial of Continuance Where no New Evidence Could Be Obtained. The court did not abuse his discretion, under the showing made, in denying an application for a continuance on the general ground that the defendant had no sufficient opportunity to prepare for trial.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.

      Oscar Briscoe was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Modified' and affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, Oscar Briscoe, was in the county court of Cotton county charged with the offense of illegally transporting intoxicating liquor. At the trial the jury found him guilty and assessed his punishment at confinement in the county jail for period of 120 days and to pay a fine of $300.

The record of the testimony, which is very brief, shows that on the 9th day of November, 1922, certain peace officers received a call to come to the home of Mrs. M. E. Brown in Walters, Okla. Mrs. Brown and a Mrs. Evans, who was visiting Mrs. Brown, testified that the plaintiff in error came to Mrs. Brown’s home in the afternoon of that day in an intoxicated condition, and that he brought with him a bottle of whisky; that plaintiff in error committed no particular act of disturbance there, except that he was a trespasser and more or less of a nuisance. The officers who made the arrest testified that they found a bottle of whisky at the Brown home, which Mrs. Brown identified as the whisky bottle brought to the place by plaintiff in error.

It appears that the plaintiff in error was so under the influence of liquor that afternoon that he did not realize what he was doing or what occurred. After the arrest he was placed in jail.

On November 17th he was brought into court for the purpose of arraignment. Having no attorney and no means to employ one, the court appointed an attorney to represent him, who, after a brief consultation with his client, filed an application for a continuance. This application recited that the attorney had not had sufficient time to prepare for trial, which was set for November 21st. The motion for a continuance was by the court overruled, the plaintiff in error was arraigned and entered his plea of not guilty, and the cause was set for trial November 21st.

There was no showing made in the application for a continuance that any material witness was absent, beyond the mere conjecture or hope that upon further investigation such witnesses might be found. Other portions of the record indicate that none could have been found, and that if the trial had been continued no new evidence could have been obtained. Under such circumstances, it appears that the court did not abuse his discretion in refusing a continuance.

There is no evidence tending to show that the plaintiff in error was a bootlegger, or a habitual conveyor of liquor; it appears, rather, that on this occasion he was a customer of some whisky peddler, and that he was conveying this particular bottle about on his person for his own consumption, and that at the time of his arrest he had imbibed so freely as to be practically irresponsible. That he was guilty of violating the prohibitory law there can be no doubt, yet we think his offense was not reprehensible in such high degree as to warrant the infliction of the punishment assessed.

We think the ends of justice would be met by modifying the penalty to confinement in the county jail for a period of 30 days and to pay a fine of $100.

The judgment of the trial court is ordered modified accordingly, and the judgment as so modified is affirmed.


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    NETTIE JESSIE v. STATE.
    No. A-4330.
    Opinion Filed July 14, 1924.
    Rehearing Denied Nov. 29, 1924.
    (230 Pac. 519.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. The evidence examined, and held amply sufficient to support the verdict.
    2. Trial — Instruction not Required on Theory not Reasonably Supported by Evidence. The trial judge is not compelled to delve into the realms of conjecture or speculation to instruct on some theory of the case not reasonably supported by the evidence.
    3. Trial — Refusal of Correct Requested Instruction, Covered by Charge, not Erroneous. Where the instructions given sufficiently cover the law, as contained in a requested instruction, it is not error to refuse such instruction, although the same may correctly state the law.
    Appeal from District Court, Tulsa County; A. C. Hunt, Judge.
    Nettie Jessie was convicted of manslaughter in the first degree, and she appeals.
    Affirmed.
    Ed Crossland, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Nettie Jessie, plaintiff in error, was in the district court of Tulsa county convicted of manslaughter in the first degree for the killing of her husband on the 18th day of June, 1921. By the verdict of the jury her punishment was fixed at imprisonment in the penitentiary for a term of seven years.

The plaintiff in error, here designated the defendant, with her husband, Dan Jessie, both negroes, lived in basement rooms of an apartment or rooming house in Tulsa. Defendant did the laundry work for the occupants of the house and performed other menial services for others in the neighborhood. The deceased husband, just prior to his demise, was employed at an automobile tire sales and service station. On the day before the homicide he quit work at 9 o’clock p. m., and was ordered to change to the morning shift, beginning at 7 o’clock the next morning. A little before that time a woman occupying the apartment above these negroes’ rooms heard the husband call her as if in 'distress. She went to the basement door and saw the defendant and the deceased standing facing each other, a few feet apart, and saw that blood was spouting from the man’s chest in the region of his heart. He told this woman that Nettie had stabbed him. The defendant said, “He isn’t hurt much.” The woman then called a physician. Later the defendant told her that Dan had “laid out all night,” and because she had “bawled him out” for it he struck her in the mouth. This witness was corroborated by two other witnesses.

The story related by the defendant at the trial was that, after the deceased had eaten his breakfast and was about to go to work, defendant was standing at the table and using a paring knife to cut pieces out of a cantaloupe which she was eating; that she and her husband indulged in a playful scuffle and that she accidentally and unintentionally stabbed him; that, as she threw out her hand to ward off a playful blow, the deceased lurched towards her and against the knife in her hand, so inflicting the mortal wound.

The assignments of error seriously urged by the defendant are two: (1) That the evidence is insufficient to support the verdict. (2) That the court erred in refusing to instruct the jury on the law of self-defense, and upon the theory of the defendant that the killing was accidental.

Defendant’s story that the stabbing was accidental cannot be harmonized with her conduct and statements immediately following the stabbing. That the wo,und was accidentally inflicted while the parties were at play might be within the realm of possibility, but seems exceedingly improbable. True, jnst prior to his death, the deceased husband asked where Nettie was, and, on being told that she was probably in jail, said:

“Go get her out. She can come and wait on me. We were just playing.”

This dying statement may have been true, or partly true; but the positive testimony of others, considered in connection with the physical facts proved, indicates that, if the incidents were commenced playfully, they terminated in a quarrel, and that the cutting was done purposely, though possibly without intent to kill. Dying declarations are not always equivalent to positive proof. They are to be considered and weighed in connection with all the circumstances and other testimony, like any other oral evidence. The verity of this wounded negro’s statement and its real import were for the 'determination of the jury.

There was no evidence calling for an instruction on self-defense. The theory of the defendant was that the wound was inflicted accidentally, and there was no evidence that the deceased made an unlawful assault upon her, and no claim that she was resisting an assault, or was in fear of death or great bodily harm. The court, in apt language, instructed the jury upon the law of justifiable and excusable homicide, and committed no error in refusing to instruct the jury on that point in the language requested by defendant. Smith et al. v. State, 22 Okla. Cr. 383, 212 P. 1012; Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137; Newby v. State, 17 Okla. Cr. 291, 188 P. 124; Byers v. Territory, 1 Okla. Cr. 678, 100 P. 261, 103 P. 532; Wells v. Territory, 14 Okla. 437, 78 P. 124.

We feel that the playful killing of husbands by the other spouse, either black or white, should be discouraged. The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.