source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    C. F. EDWARDS v. STATE.
    No. A-1507.
    Opinion Filed May 3. 1913.
    (131 Pac. 956.)
    1. CHANGE OF VENU E — Discretionary Ruling — Appeal, (a) An application for a change of venue is addressed to the discretion of the trial court, and the ruling of the court thereon will not be reviewed upon appeal in the absence of a showing that the court abused its discretion.
    (b) For counter affidavits held to be sufficient to put in issue the fact as to whether or not so great a prejudice existed in a county against a defendant as to prevent him from securing an unbiased and unprejudiced jury and a fair and impartial trial in said county, see opinion.
    2. CONTINUANCE — Sufficiency of Application — Appeal, (a) An application for a continuance is addressed to the discretion of the trial court, and the ruling of the court thereon will not he reviewed upon appeal unless it is made to appear from the record that this discretion has been abused.
    (b) For an application for a continuance held to be wholly insufficient on the question of diligence and also upon the question of the actual merits of the case, see opinion.
    3. EVIDENCE — Admissibility of Evidence — Testimony at Preliminary Trial — Discretionary Ruling — Appeal, (a) Where a witness has testified in a preliminary trial and has been cross-examined by the defendant, and where the attendance of said witness cannot be obtained upon a subsequent trial of said cause, it is not error for the trial court to permit the introduction by the state of the. testimony given by said witness upon such former trial.
    (b) Where the evidence shows that a witness who had testified upon a' preliminary trial could not be found by the officers after a diligent search, the trial court has a right in the exercise of its discretion to permit the admission of such testimony against a defendant, and upon appeal it will be presumed that this discretion was properly exercised in the absence of a showing to the contrary.
    (c) For evidence which justified the trial court in admitting the previous testimony of a witness who was absent at the final trial, see opinion.
    4. APPEAL — Harmless Error-^Argument of Counsel. Where the evidence conclusively shows the guilt of a defendant of murder and the jury only convicts him of manslaughter, ordinarily the court will not consider objections to improper remarks made by the county attorney in his closing- argument to the jury.
    5- APPEAL — .Harmless Error — Grounds for Reversal — Presumption of Regularity, (a) A conviction will not be reversed on account of the action of the trial court unless two things affirmatively appear in the record: First, that the court committed error during the trial of the cause; second, that by such error the defendant was deprived of a substantial right to his injury.
    (b) It is no part of the duty of the members of the Criminal Court of Appeals to act as counsel for an appellant. We will not presume that the trial judge, the county attorney, and the jury entered into a conspiracy to unlawfully deprive an appellant of his liberty, or that either of them have not faithfully performed their respective duties. Every presumption will be indulged in favor of the rulings of the trial court, the regularity of the proceedings, and the correctness of the verdict of the jury. This is necessary in order that property rights may be protected and human life may be made safe and sacred in Oklahoma.
    6. APPEAL — Presumption of Innocence. After conviction the presumption of innocence is destroyed, and on appeal the counter presumption, that the verdict is correct and appellant guilty, prevails-
    (Syllabus by the Court.)

      Appeal from District Court, Garvin Countyj B. McMillan, Judge.

    C. F. Edwards was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    The material testimony in the case may be substantially stated as follows: The homicide occurred on the 15th day of April, 1911, in Garvin county, Okla., at the home of appellant, who resided four or five miles west from Pauls Yalley. -The deceased lived about half a mile from appellant. On the day of the homicide the deceased and appellant came to Pauls Yalley driving a pair of mules belonging to deceased hitched to a wagon belonging to appellant. They were accompanied by same friends in the wagon. They bought some feedstuff and groceries, -and appellant procured a quart bottle of whisky. The deceased and appellant and some other persons in the wagon with them took a drink or two of whisky on their way home from Pauls Valley. Tlie parties first stopped at tlie borne of Ed Swan, where they got out of the wagon and placed in his house some goods which he had purchased. He then drove on half a mile further to the home of appellant. IJp to this point there is no conflict in the evidence.
    The testimony of F. L. Strickland at the preliminary trial was admitted. He testified: That on the day of the homicide he was breaking sod on appellant’s farm working for appellant and that he was present at the time when the homicide occurred. That at 6:20 o’clock he left the field -and went to the house. He there saw appellant and the deceased. That appellant came out of his house to the wagon. That deceased came out of the house and went to the wagon and sat down on the ground and drove- a peg in the ground and was pitching his knife at it. That appellant and deceased were talking about a check which witness had given the deceased. Deceased told witness that the check had been turned down. Witness and appellant promised to pay deceased tlie money for the check. That they then ceased to discuss the check matter. That' appellant said to deceased, “Ed, I made her come clean,” and deceased replied, “My wife told the truth.” Appellant then said, “I don’t like to have my wife called a liar.” Deceased then said, “My -wife told the truth.” Appellant did not make any reply to this, but he. drew his knife out of his pocket and began to open it, but he did not open the knife, but drew out a revolver which he held in his right hand. Witness then took appellant by the left arm, and said, “Don’t do that,” and appellant replied, “Get back, or I will hurt you.” Deceased was then standing up about 10 feet off, and, when ordered to turn appellant loose, witness stepped back, and appellant then walked up in front of deceased. Deceased said to appellant, “Kirk, you have got me bested.” Appellant then struck deceased an upper cut with -his left -hand and knocked him down, at the same time holding his revolver in his right hand. Deceased got up and walked over and sat down on the wagon tongue. At this time the pair of mules which witness had been driving ran off, and witness pursued them and caught them, and as he pulled back the lines he heard a shot. Witness was then 25 or 30 yards from the scene of the homicide. Witness started to the place where the shooting occurred and found deceased lying on the ground. Appellant was there with a pistol in his hand.' Deceased did not say anything. Witness then left and returned a few minutes after, and appellant and his brother John Edwards were there. John Edwards, speaking to witness, said, “He is as good a friend as I ever had and it was all over you,” referring to witness.
    W. W. Campbell testified for the state that at the time of the killing he lived in a tent about 75 or 100 yards from the house of appellant; witness’ attention was attracted by some loud talking; he then looked; he saw appellant standing with his arms stretched out; he heard the report of a shot;' he did not see deceased'at the time; witness then went up to the house of appellant and to the wagon; he there saw deceased lying on the ground; deceased lived 15 or 20 minutes after witness reached him.
    Dr. Johnson testified' that he examined the body of the deceased; that there was an abrasion on his face just beneath the right eye and a gunshot wound 1^4 inches behind and a quarter of an inch above the right ear and coming out on the left side three inches above and three inches behind; that the abrasion on the face of the deceased was made before death.
    Dr. Lindsay testified to the same facts, and further that he saw no powder marks on the deceased when he examined the . body.
    B. Bruce testified that he took a photograph of the deceased; that there was a black swollen place beneath a sear under one eye on deceased’s face.
    Jim Young testified to the bruise on deceased’s face when his body was prepared for burial.
    J. S. Kercheval testified to the bruised place on the face of the deceased, and also that lie saw no powder marks on the deceased when he was prepared for burial.
    Anna Edwards, the wife of appellant, testified that appellant and the deceased were pretty full of whisky at the time they came from Pauls Valley; that she first heard loud talking and then saw them scuffing; that she rushed out upon hearing the shot, and her husband came toward her and exclaimed, “What have I done?” Appellant then said he was going for a doctor, and left.
    John Edwards testified that he came home in the wagon with appellant and the deceased; that they were both pretty full of whisky when they got home; that witness saw appellant and deceased scuffing and heard a gun fire and deceased fell back dead.
    Appellant testified that he lived near deceased and that deceased had been friendly with him for quite a while; that when in the town of Pauls Valley on the day of the homicide he and the deceased drank considerable whisky and they had a quart bottle with them when they started home; that they took as many as & or 10 drinks a piece; that after they reached home appellant went into the house and talked to his wife, and while there he got his pistol and put it in his pocket; appellant said he didn’t know why he put the pistol in his pocket; appellant and deceased were talking about a check that Strickland had given to deceased which, had been turned down; that they then saw Strickland coming over the hill driving toward them; that a hound dog came along and started toward the chicken house; that appellant drew his pistol and said, “I believe I will shoot him;” deceased jumped up and grabbed the gun, and deceased and appellant were scuffing over the gun when they stumbled over the wagon tongue and fell, and the gun went off accidentally and'killed the deceased.
    A number of minor circumstances were testified to tending to impeach the -testimony offered for appellant.

      Thompson & Patterson, iCarr & Field, and Blanton '& Andrews, for appellant.

      •Smith 0. Matson and 'Joseph L. Hull, Asst. Attys. Gen., and John M. Stanley, Co. Atty., for the State.
   FURMAN, J.

(after stating the facts as above). Counsel for appellant have assigned 42 different errors alleged to have been committed upon the trial of this cause and thereby brought up for review all of the rulings made by the trial court. It is the undisputed right, and it is also the duty of counsel, when they prosecute an appeal, to present for review every material question which in their judgment involves an erroneous ruling of the trial court to the injury of their clients. But it is hardly probable that the trial court would commit material error in every ruling made. It is therefore respectfully suggested that when an appeal is taken counsel can save themselves and the members of this court -a great deal of unnecessary labor by selecting the questions brought up and presenting only those which have substantial merit. We know that during the hurry of a trial counsel frequently reserve exceptions without having time to determine as to whether or not they are well taken. This is also their right and duty. But after they have had time for reflection it would be the better plan if they would eliminate from the record and only present on appeal those questions which upon investigation they regard as actually meritorious. When the entire case is brought up on appeal for review it naturally suggests the inference that counsel themselves are in doubt as to all of the propositions which they have presented and do not know exactly upon what they rely.

The brief in this ease covers 122 pages, which we have carefully read and re-read and considered from the beginning to the end. We will, however, only discuss those questions which go to the substantial merits of the cause.

First. When the case was called for trial, appellant presented a motion for a change of venue, in which it was set up that so great a prejudice existed against appellant in the minds of the people ■ of Garvin county that he could not obtain a fair and impartial trial in said county. This motion was duly sworn to by appellant and was supported by the affidavits of seven compurgators as required by law. The state filed a number of controverting affidavits to the effect that the signers thereof had read defendant’s motion for a change of venue and his supporting affidavits, and that they believed the persons making said affidavits were not reliably and rightfully informed as to the condition of the minds of the citizens generally of Garvin county toward defendant, and that they further believed that an unbiased and unprejudiced jury could be obtained in said Garvin county for the trial of said cause, and that appellant could obtain a fair and impartial trial on said charge in said county. The court overruled the motion for a change of venue, to which appellant excepted. The first objection made to the ruling of the trial court is that the counter affidavits filed by the state in opposition to the motion for a change of venue were insufficient because they only expressed the opinions of the affiants and did not in direct and positive terms deny the credibility of the compurgators of appellant and state that the change was not necessary. As to whether or not the compurgators of a defendant seeking a change of venue are credible persons, necessarily, is a matter of opinion which might be based upon a great variety of circumstances which would have more or less influence with different persons. As to whether or not a change of venue should be granted in any given case is also largely a matter of opinion. No witness could swear as a matter of fact, independent of his judgment, that so great a prejudice did or did not exist in the minds of the inhabitants of a county against a defendant that an unbiased and unprejudiced jury could or could not be obtained in said county for the trial of said defendant. Any statement on this subject would necessarily be so blended with the opinions and beliefs of the affiant as to be inseparable therefrom. This is one of the cases' in which persons not experts are permitted to testify as to opinions formed by them as to conditions which conld not be produced in court. See Miller v. State, ante, 131 Pac. 717, decided at the present term of the court. We think that the counter affidavits of the state were properly received by the court for the purpose of attacking the credibility of the compurgators of appellant and also for the purpose of showing that a change of venue was not necessary. It was the privilege of the trial court, had he been in doubt as to the merits of the application for a change of venue, to place all of the persons making affidavits, and such others as the court desired, upon the witness stand and examine them fully as to their means of knowledge and the circumstances upon which their opinions were based. We have discussed this question so often that we do not deem it necessary to enter fully into it again.

In the case of Tegeler v. State, ante, 130 Pac. 1164, this court said:

“Section 6166, Comp. Laws 1909, among other things provides that a change of venue may be had on the application of the defendant by petition, setting forth the facts verified by affidavit, supported by the affidavits of at least three credible persons who reside in said county. It further provides that the county attorney may introduce counter affidavits ‘to show that the persons making affidavits in support of the application for a change of venue are not credible persons, and that a change is not necessary/ Under this statute, the state may file counter affidavits stating any fact or facts that would show that a change of venue was not .necessary. If the court is of the opinion upon an inspection of the affidavits filed in support of and in opposition to a motion for a change of venue that a change of venue should not be granted, then it should be so ordered; but, if the court ■ is not satisfied on this question, it may have all of the parties making these affidavits on both sides, and such other persons as the court may think proper, sworn as witnesses and examined in open court touching the matter in controversy. The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant to establish his right to a change of venue. The granting, of a change of venue is by the Constitution and statute made discretionary with the trial court, and this court will not reverse a ruling of the trial court denying an application for a change of venue, unless it is made clearly to appear that there has been such an abuse of this discretion as to amount practically to a denial of justice. By abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application. Whatever the decisions in other states may be, this is not an open question in Oklahoma. See Starr v. State, 5 Okla. Cr. 440, 115 Pac. 365; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Black v. State, 3 Okla. Cr. 547, 107 Pac. 524; Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300.”

We find nothing in the record which indicates that the trial court abused its discretion touching this matter. We therefore cannot review the action of the trial court in refusing to grant the application for a change of venue.

Second. When this case was first reached for trial on the 29th day of April, 1911, appellant filed a motion for a continuance in which he alleged that on the 15th day of April of the same year he had accidentally shot and killed the deceased, and that he had been incarcerated in the county jail of Garvin county ever since; that his preliminary trial on said charge was not held until the 19th day of April; that appellant had been attempting to employ lawyers since to act as counsel for him, but that he had only made temporary arrangements with certain lawyers to represent him; and that the lawyers whom he had thus employed had not had time or opportunity to prepare his case for trial. The homicide occurred at the home of appellant on Saturday afternoon about sun-down. Appellant noticed a number of persons passing his house traveling west on said afternoon and believes that some who passed along said road at said time were eyewitnesses to said accidental homicide, and that if given opportunity and time he believed he might be able to produce such witnesses, but he was then unable to give the names and residences of any such persons; that the county court of Garvin county had been continuously in session since the day of the homicide, and the district court had also been in session a greater portion of this time; and that the lawyers whom the defendant had spoken to to represent him had been busily engaged in the trial of causes in said courts and had not been in a position to prepare defendant’s case for trial. Supporting affidavits were also filed by counsel who represent appellant showing that said counsel had not been able to prepare for trial. The county attorney filed a replication to the motion for a continuance upon the ground that said motion did not show the nature and materiality of the evidence expected to be obtained, or state any fact that appellant expected to prove by the undiscovered witnesses referred to in said application; that on the 16th day of April appellant procured counsel to represent him who on that day repaired to the scene of the killing and interviewed the eyewitnesses to the transaction; that on the 17th day of April appellant and his wife executed a mortgage securing a fee of $1,500 to his counsel to represent him, and that on said day said counsel appeared before the examining court in appellant’s behalf, but that the trial was postponed to the 19th day of April, at which time his said counsel again appeared and represented appellant; that appellant was arraigned on the 24th day of April and pleaded not guilty and did not seek any postponement of the trial of said cause; that the state had summoned all of the eyewitnesses to said killing, including the immediate members of the family of defendant, and said witnesses were then in court. The court thereupon' postponed the trial of said cause in order that appellant' and his counsel might have time to prepare for trial.

The case was again called for trial on the 30th day of May, 1911, at which time appellant again filed a motion for a. continuance. The material portion of said second motion for a continuance is as follows:

“Comes now the defendant, C. F. Edwards, and shows to the court that he cannot safely go to trial at this term of the court for the reason heretofore stated in his motion for continuance filed on the 29th day of April, 1911; that he here now renews said application as then made for the reason therein set forth, and asks that said motion be considered a part of this motion the same as if it were repeated herein in full; and petitioner further shows to the court that he has been unable to obtain the evidence of the witnesses mentioned in said motion for continuance not through any fault, neglect, or omission on liis part; that he has been confined continuously since said date in the county jail of Garvin county, Pauls Valley, and that his attorneys, the firms of Blanton & Andrews, Carr & Field, and Thompson & Patterson, have been continuously occupied in the trial of cases, both civil and criminal, and of all grades in the district court of Garvin county; that they have not had the time within the space allotted by the order of this court postponing the trial hereof to secure the evidence of the witnesses mentioned by reason of being unable to get away from court a sufficient length of time to procure such evidence. Petitioner hereto attaches the affidavits of his said attorneys, and makes the same a part hereof. Petitioner further shows to the court that, if the trial of this cause is postponed to the September term of the district court of this county, he can and will procure the attendance and evidence of said witnesses; that said evidence is material to his proper defense herein; and that he cannot safely go to trial without the same.”

The motion is supported by the affidavits of counsel for appellant that they had been so busy in court since their employment that they had been unable to prepare the defense of appellant in this cause. This motion was by the court overruled, to which counsel for appellant excepted. It is not necessary for us to consider as to whether or not the first application for a continuance set up facts sufficient to require the court to grant a -postponement of the trial until further investigations could be made, the court did postpone the trial 30 days, and when the case was called for trial on the 30th day of May appellant renewed his motion to continue the cause for the term. The trial court was in a far better condition than this court is to determine whether or not counsel for appellant had had sufficient time within which to prepare for trial. The motion-shows that appellant was represented by three of the leading law firms of Garvin county. Certainly it is not unreasonable to presume that some of them, had they so desired, could have made all necessary investigations and preparations for trial. The motion for a continuance does not state the name of any absent witness who might be obtained, nor any facts which could be proven by any unknown witness in the event the case had' been continued. No assurance whatever was given that absent witnesses could or would ever be found, or, if found, as to what their testimony would be. The law requires that an application for a continuance must state the names of the witnesses on account of whose absence a continuance is sought and their place of residence, if known, and the probability of procuring their attendance át a subsequent term, and must also state the facts expected to be proven by -such absent witnesses. See Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300. Men who are prosecuted in Oklahoma for crime must understand that this is a very serious business and that the courts cannot be trifled with and will not wait on the convenience of any man, and when a defendant seeks a continuance he must give the court something more than his opinions and hopes; otherwise it would be well-nigh impossible for the trial courts of this state to dispose of the cases before them. See Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544; Bryan v. State, 5 Okla. Cr. 542, 115 Pac. 619. The granting or refusal of a continuance in a criminal case is largely a matter of discretion with the trial court, and this court will not review the action of a trial court in refusing to grant a continuance unless it is shown that there has been an abuse of this discretion. See Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554. In this case Judge Doyle, speaking for the court, said:

“The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court, and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment. Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307.”

For the necessary elements of an application for a continuance on the ground of absent witnesses, see Boswell v. State, 8 Okla. Or. 152, 126 Pac. 826.

We think that the application for a continuance in this case was altogether insufficient in failing to set up any legal ground why the case should be continued, and that it was addressed solely to the discretion of the trial court. There is nothing in the record indicating that the trial court abused its discretion in this matter.

Third. F. L. Strickland testified as a witness for the state in the preliminary examining trial of appellant. He was cross-examined by appellant and his testimony was reduced to writing. He was. subpoenaed as a witness in behalf of the state for the final trial, and to insure his presence he was required to enter into a recognizance to appear and testify as a witness. When the trial was reached, said witness made default in his recognizance and wholly failed to appear and testify for the state.

It was shown by the state that one J. L. Aldred, a deputy sheriff of Garvin county, made an effort to serve a subpoena on F. L. Strickland, commanding him to be present at court on May 30th. He went to Ward’s and Wren’s, the places where witness stayed. He made inquiries of most everybody out there that knew the witness, and nobody had seen him since the Tuesday just preceding; a return was made by him on the subpoena that witness was not found in the state. The subpoena was given him Monday afternoon, the day before the trial. He had subpoenaed witness once or twice before that in this trial, but not for the 30th. It was about 12 miles out to the place he went and back. He visited Ward’s and Kercheval’s and all those places along out there where persons knew anything about witness. He went west where witness had a crop and had been working all the year. He was gone all afternoon, something like four hours. He made inquiries in town and in the country too, and failed to learn where the witness was. He served a subpoena on Strickland for his appearance in this trial on May 1st; service being made on April 29th. Also served a warrant for his arrest about May 10th, and brought him in, and he was placed under bond as a witness. Strickland claimed to have a crop at Mr. Ward’s. Witness testified that Strickland was not around.in Garvin county where anybody knew; that he did not know where he was.

T. J. Austin, clerk of the court, swore that Strickland’s bond was forfeited for his failure to appear as a witness, that morning; also against the sureties, L. M. Ward and W. M. Wren.

W. M. Wren knew Strickland, saw him last Tuesday afternoon, last about 4 o’clock, at his home. He had made a search for him since then, but could learn nothing, of him. He was not in the community where he formerly lived.

L. M. Ward, the other surety, testified that he saw witness last a week ago. He had been sleeping and staying at Ward’s house. Strickland told him he was going to Wren’s and Ward’s brothers and Joe Baur’s. He has searched for him, but could not find him. He inquired at his brother’s, but Strickland did not go there.

Chester Strickland, brother of F. L. Strickland, swore he saw F. L. last Saturday night a week ago at Luke Ward’s; does not know where he is. Had not heard of him since then; he was ^n unmarried man and lived at defendant’s home up to the time of the killing; their mother lived at Dewey, Okla.; F. L. did not say anything to him about going to any place.

Hpon this showing the court permitted the state to introduce -the written testimony of said witness taken at said preliminary trial, to all of which appellant objected and excepted.

In the case of Warren v. State,, 6 Okla. Or. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121, this court held that the constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary trial before a justice of the peace. When this has been done, and upon a subsequent trial of the said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died, become insane, left the state, or that their whereabouts cannot with due diligence be ascertained, or are sick and unable to testify, the testimony of such witnesses given upon said former trial may be proven upon the subsequent trial.

In the case of McNamara v. State, 60 Ark. 400, 30 S. W. 762, the previous testimony of an absent witness was admitted where it was shown that a subpoena and an attachment had been in the hands of the officers for said witness, and that 'they had made every effort to find him and were informed by those who knew that he was .out of the state.

In the case of State v. King, 24 Utah, 488, 68 Pac. 420, 91 Am. St. Rep. 808, the court said:

“The testimony tends to show that the witness could not be found, and the trial court had a right to exercise his discretion in the admission of the testimony, provided he did not abuse such discretion. The reasons given for the absence of the witness were reasonable,. and were satisfactory to the trial court. We are not prepared to say that the discretion of the court was improperly exercised.”

In the case of People v. Boyd, 16 Cal. App. 130, 116 Pac. 323, the court said:

“Where a trial court, in its discretion, admitted the testimony of an absent witness, given at a preliminary hearing, it must be presumed on appeal that the discretion was properly exercised.”

In the case of Shackelford v. State, 33 Ark. 539, the previous testimony of an absent witness was admitted upon proof that the witness had been placed under a recognizance which he had forfeited and that he could not be found by the officers after a diligent search.

In the case of People v. Melandrez, 4 Cal. App. 396, 88 Pac. 372, the previous testimony of an absent witness was admitted, where, after considerable search in and about the place fre^ quented by the witness, the officers had been unable to find him.

In the case of People v. Fish, 125 N. Y. 136, 26 N. E. 319, the previous testimony of an absent witness was admitted, where it was proved that the witness had been subpoenaed. He stated he was going to his sister’s and would appear in court. Upon his failure to appear the officers went to his sister’s, but could not find him or learn of his whereabouts.

We know of no higher- or safer authority than Prof. Wig-more. In volume 2, par. 1405, of his work on Evidence, Prof. Wigmore says:

“If the witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance. Such a disappearance is shown by the party’s inability to find him after diligent search. The only objection to recognizing this ground of unavailability is the possibility of collusion between party and witness; but supposing the court to be satisfied that there has been no collusion, and that the search has been bona fide, this objection loses all of its force. For former testimony this cause of unavailability has long been recognized. It ought equally to suffice for depositions.” (Italics ours.)

In the case at bar the evidence fully justifies the conclusion of the trial court that the absent witness had left the jurisdiction of the court for the purpose of avoiding giving testimony against appellant. There is not a single circumstance in the evidence which indicates any collusion between the absent witness and the prosecution. We do not believe that the attorneys who represented appellant are in any manner responsible for the.disappearance of this witness. We have not overlooked the fact that this witness previously resided at the home of appellant, and as he was the only eyewitness for the state, and as his testimony was most damaging to appellant, it is safe to assume that his absence was caused by a desire on his part to benefit appellant. If, under circumstances of this character, the state is -not permitted to reproduce the testimony of a witness who had previously been confronted by appellant and, who testified and was cross-examined fully then it is within the power of a defendant or his friends to have such a witness leave the jurisdiction of the court and thereby deprive the state of his testimony altogether. This would often result in the miscarriage of justice.

We think the ruling of the trial court in all respects correct in admitting the testimony of the witness Strickland.

Fourth. Counsel for appellant complain of remarks made by the county attorney in his closing argument to the jury. It is not necessary, however, for us to discuss in detail the nature and character of the remarks made, because upon a consideration of the entire record it affirmatively appears that appellant was not injured thereby. If the minds of the jurors had been misled or inflamed against appellant by anything said by the county attorney, they never would have found appellant guilty of manslaughter in the first degree, when the evidence makes out a plain case of a brutal and a cowardly murder.

The facts of this case with unerring certainty point to the guilt of appellant and demonstrate that his defense was a pure and transparent fabrication. A few minutes before the fatal difficulty occurred appellant went to the house and armed himself with an automatic pistol, but claims not to know why he did this. He wanted the jury and court to believe that while he was quietly and peaceably talking to the deceased, who he claims was his friend, a hound dog came up, and that he (appellant) then drew his pistol from his pocket, declaring that he would shoot the dog, and that thereupon deceased without cause and without saying a word interfered and attempted to take the pistol away from appellant, and that while they were scuffling together for the possession of the pistol they fell over the tongue of the wagon, and the pistol was accidentally discharged, and the deceased was killed. Upon its face this statement is unreasonable, if not absolutely impossible. If it were true that appellant and deceased were scuffling over the pistol when it was discharged, and if it were possible for them to have had their hands in such a position that the wound could have been inflicted upon the deceased as described by tbe physicians, then they wonld necessarily hare been so close together that deceased would have been badly powder burned from the effects of the shot. The defense of appellant is inconsistent with the physical facts of the case. The testimony shows that there was a fresh wound or bruised place on the face of deceased beneath his' right eye which the doctors testified was inflicted prior to death. If this wound was inflicted by the fall of the deceased at the time the shot • was fired, he must have fallen on his face; then appellant could not have been in front of him struggling with him 'for the pistol. All of the facts sustain the testimony of the state’s witness Strickland that the deceased and appellant immediately before -the shooting had some words with reference to a controversy involving their wives, and that deceased’s only offense consisted in stating that his. wife had told the truth; that, angered at this, appellant pressed the controversy and drew his pistol with one hand and knocked the deceased down, with the other; that deceased made no resistance, but stated to appellant, “You have got me bested”; that then the appellant deliberately shot the deceased while the deceased whs sitting upon the wagon tongue and not making any attack whatever upon appellant. It is true that the testimony shows that appellant was more or less under the influence of intoxicating liquor, but that he knew exactly what he was doing, and that he intended to kill deceased conclusively appears from the record. This was therefore a case of murder and' was not manslaughter.

Instead of being influenced by improper motives or acting upon prejudice against appellant, the record shows that the jury in great mercy erred in convicting him of a lesser degree of offense than that of which he was guilty.

The jury were evidently influenced, in arriving at their verdict by the fact that appellant and the deceased previous to the homicide had been friends, and by the further fact that at the time of the homicide appellant was more or less under the influence of intoxicating liquor. Yet there .is nothing in the testimony to show that appellant was so much under the influence of intoxicating liquors as to be unable to understand the nature and consequences of his act and incapable of forming a premeditated design to take the life of the deceased. On the contrary, the evidence did show that appellant acted deliberately and knew exactly what he was doing. But in this case, as they do in many others, the jury made undue allowances for the weaknesses, frailties, and imperfections of mankind, and found appellant guilty of manslaughter in the first degree when he should have been convicted of murder. But this is an error of which appellant cannot complain, because it inures to his benefit. But it at least shows that the jury were not influenced by improper motives in finding the defendant guilty, and that appellant was not injured by the remarks of the county attorney.

Fifth. A number and variety of other exceptions are presented and argued with great ability and at length in the brief by counsel for appellant. A number of the rulings 'made by the trial court are subject to the criticisms made by counsel, but we do not think that any of them affect the substantial questions involved in this case, or could have influenced the jury improperly against appellant. By the -terms of our statute this court is prohibited from reversing a conviction upon any exception or ruling of the trial court, unless it appears from an examination of the entire record that the appellant was deprived of some substantial right thereby. See Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532, and every case decided since by this court in which this question has been mentioned. This is not only the statute law of Oklahoma, but it is fully sustained by reason and justice. We very much doubt if an absolutely flawless trial from a technical standpoint was ever had in a hotly contested case when able counsel appeared for both sides. If convictions are to be reversed upon immaterial errors, the courts would no longer perform the duty of protecting society, but would find themselves practically the protectors of criminals. Wherever a substantial right is involved m a technical rule this court will enforce such rule strictly. But where, as in this case, the appellant is clearly guilty, and none of the errors complained of were calculated to influence the jury to his prejudice, it would be a miscarriage of justice to set aside the conviction.

Judges should always remember that laws are enacted to be enforced, and that penalties are prescribed to be inflicted upon those who violate the law, and that courts are established and ■supported by the people solely for the purpose of administering justice and protecting the people in their property and in their lives, and that it is a perversion of their powers and duties for courts to administer the-law for any other purpose than that of the protection of society. An appellate court has no right to assume that the trial judge, the county attorney, and the jury have entered into a conspiracy to unlawfully deprive a defendant of his liberty. These persons are all officers of the law and are acting under oath, and every presumption must be indulged in favor of the regularity, good faith, and justice of their action.

Before conviction a person charged with crime is presumed to be innocent. A defendant participates in the selection of the jury,, and when a juror is accepted by a defendant he thereby vouches for the intelligence, integrity and impartiality of such juror, and he is bound thereby unless the contrary affirmatively appears from the record. Therefore, after a jury has found a defendant guilty, the presumption of innocence is destroyed, and upon appeal the counter presumption prevails; that is, that the verdict of the jury is right and that the appellant is guilty. Appellate courts have.no right to act as counsel for a defendant and hunt for excuses to set aside the verdicts of juries and the judgments of courts, and no case should be reversed unless it affirmatively appears from the record that the trial court committed material error to the injury of fhe appellant, or that the' jury were influenced by improper motives, or that the verdict is contrary to the evidence. There should be an end to criminal trials, for it is the nearness and certainty of punishment which deters criminals and thereby protects society. This court is unalterably committed to the enforcement of these principles for the purpose of protecting property rights and making human life safe and sacred in Oklahoma.

We find no material errors in the record. The judgment of the lower court is therefore in all things affirmed.

ARMSTBONG, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    CARL R. WELLS v. STATE.
    No. A-1761.
    Opinion Filed May 3, 1913.
    (131 P. 125.)
    CONTEMPT — Appeal—Jurisdiction. The -Criminal Court of Appeals has no jurisdiction to review civil contempt proceedings wherein defendant is adjudged guilty of contempt for failure to pay attorney fees and alimony.
    (Syllabus by the Court.)

      Appeal from District Court, Hughes County j John Caruthers, Judge.

    Carl B. Wells was adjudged' guilty of contempt, and ap-
    peals.
    Appeal dismissed.

      Crump & Skinner and Mann, Rogers & Harris, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff -in error was on April 11, 1912, ordered to be committed to the custody of the sheriff and confined to the county jail of Hughes county until such time as he complied with the order of said court as theretofore made, directing him to pay $400 alimony and $100 attorney fees, awarded in a divorce wherein Phoebie A. Wells was plaintiff and plaintiff in error was defendant. From this judgment an appeal was attempted to be taken by filing in this court June 8, 1912, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal as follows: ■

■“Because the record discloses and the petition in error recites that this is an appeal from a ‘judgment and sentence rendered in a certain cause pending in the district court of Hughes county, Olda., wherein Phoebie A. Wells, was plaintiff and Carl Wells was defendant, and wherein this defendant was adjudged to be guilty of the crime of contempt of court in not paying certain attorney’s fees and alimony awarded against him upon á former hearing in said cause/ ■ etc., it clearly appearing from the face of the petition in error that this is an appeal from a judgment rendered in a civil and not a criminal action.”

The question presented is the same as the one. decided in Flathers v. State, 7 Okla. Cr. 668, 125 Pac. 902, and, for the reasons given in the opinion in that ease, the motion to dismiss for want of jurisdiction is sustained and the purported appeal herein dismissed. '


author: DOYLE, J.

text:
    G. A. STEWARD v. STATE.
    No. A-1376.
    Opinion Filed May 3, 1913.
    (131 Pac. 725.)
    1. HOMICIDE — Appeal—Error Favorable to Defendant. When the court submits the issue, and the jury finds the defendant guilty of manslaughter in the second degree, in a case where the law and the facts make the crime murder or manslaughter in the first degree, it is an error in favor of the defendant, of which the law will not take cognizance, and of which the defendant cannot complain.
    2. APPEAL AND ERROR — Presentation Below — Necessity. Error e.an be made available on appeal only by exceptions duly taken on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc Countyj Tom D. McKeówn, Judge.

    G. A. Steward was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.

      W. T. Anglin and Crawford & Bolen, for plaintiff in error.

      Chas. West, Atty. Gen., Smith €. Matson, Asst. Atty. Gen., and Jos. L. Hull, Spec. Asst. Atty. Gen., for the State.
   DOYLE, J.

The-plaintiff in error, hereinafter called the defendant, was convicted of manslaughter in the second degree in the district court of Pontotoc county on an information filed in said court February 3, 1910, charging him with- the murder of one D. T. Gray in said county on or about the 24th day of December, 1909, and in accordance with the verdict of the jury he wa,s sentenced to imprisonment in the penitentiary for a term of three years. The judgment and sentence was entered March 14, 1911. An appeal was perfected by filing in this court September 13, 1911, a petition in error with case-made.

The facts of this case so far as deemed material to a proper understanding of the questions presented are as follows: It appears from the record that the defendant was a physician with an office in the town of- Allen. The killing occurred in the defendant’s office on Christmas Eve; the deceased was shot with a 45-caliber pistol; the bullet entered 2% inches below and back of the left nipple, -and came out 3 inches below the right shoulder blade.

Three persons besides the defendant and the deceased were ■in the room at the time; of these two testified for the state and one for the defendant.

Jim Story testified: That he went with the deceased to Dr. Jones’ office, and there found Dr. Jones, Julian Donaghey, and the defendant. That there was a double-barrel shotgun on a table in the room, and the defendant was sitting behind the table. The deceased remarked, “Seems like you are having a Jubilee up here.” The defendant said, “I have a- right to pro-teet my house;”' and the deceased answered, “I do not blame you; I would too.” The defendant then jumped up, and came out with a six-shooter, and the deceased said, “Don’t shoot .me, Doe.,” and walked towards him. The defendant struck the deceased with the six-shooter, and deceased picked up the shotgun, and witness knocked it out of his hands on the floor. Don-.aghey said, “Jim, you are going to get shot;” and witness got from between them. The defendant and the deceased were then scuffling over the six-shooter; the deceased, holding the muzzle, shoved the defendant down, and the gun went off. The deceased let go of the pistol and grabbed the shotgun, holding the muzzle toward the defendant. The defendant then fired again, and the deceased said, “You have killed me,” and lay down and died in a few minutes. The deceased was unarmed. He further testified that the deceased had not made any move to do the defendant any harm at' any time before the defendant drew the pistol.

Julian Donaghey testified that he was sitting in the office when Jim Story and the deceased came in, and his testimony was in substance the same as that of witness Jim Story.

Nute Smith, Ebb Ashfoíd, and Ira Singleton testified that they were in the defendánt’s office a short time before the killing, and Ashford picked the shotgun from the table, and the defendant said “not to be monkeying with it,” and took the gun from him, and broke it, and a shell fell out on the floor. The- defendant picked the shell up, and put it in his pocket, and breeched the gun; that they were drinking whisky, and the defendant ordered them out of his office, and pushed Nute Smith down the stairs; that they went into a pool hall, and told the deceased about the trouble, and -he said, “Take a fool’s advice and stay away from up there.”

J. B. Robinson testified that he was in Dr.' Means’ drug store right under the defendant’s office and heard the shots, and walked out and started up the stairs, and was about two-thirds of the way up when the defendant said, “ ‘Hold on there; don’t come np here.’ I said, ‘This is Ranks Robinson;’ and he saidj All right, Banks.’ He was standing in the door with the shotgun and a pistol in his. hands. I looked around and saw Mr. Gray laying there, and I said, ‘Doctor, how come this?’ and he said, ‘I cannot tell you; it was done so quick that I do not know how it was done; I never was so sorry over anything in my life as this.’ I said, ‘Doctor, did you kill him with bird shot?’ and he said, ‘No, Banks, I killed him with buckshot.’ As I said this, he un-breeched the shotgun and put in a couple of shells. He asked me to look over the room, and see if I could find any shells. I looked, and found one, a No. 10, loaded with buckshot.”

On behalf of the defendant, Sam Weems and Jim Crawford ■ testified that they heard the deceased remark to some one, “I will go up and see if he will kick me out that way,” and a few minutes afterwards they heard the shooting.

Dr. John B. Jones testified: That he officed with Dr. Steward, the defendant; 'that the deceased, with Jim Story, walked in and said, “You all seem to be having a jubilee up here,” and Julian Donaghey said, “No, we are not having a jubilee; but I think a fellow fell down the stairs and cut his hands on a whisky bottle;” and the deceased said, “You need not tell me that is all there was to it, because I know there was something else to it;” and the defendant said, “I do not know that it makes any difference to any one whether there is anything to it; we have to protect our office against any such crowd as that; we are not going to have any drunken crow’d around here.” That the deceased then advanced forward, and remarked, “‘You old son of bitch, what .is the matter?’ and everything started quicker than you could hardly say.” The deceased grabbed the shotgun, and Jim Story grabbed him by the arm, and the gun fell on the floor. Witness grabbed the defendant, and fell on the floor, and the defendant fell over him. That he heard two shots, and as he looked the deceased was holding the shotgun in the defendant’s face. The deceased dropped the gun and grabbed his stomach, and said, “He has killed me.”

Tom Smith testified that the defendant had a commission under him as a deputy sheriff.

The defendant did not testify.

On rebuttal several witnesses testified that the deceased had a good reputation as being a peaceable,- law-abiding citizen. It was the theory of the state that the homicide was deliberate and malicious. The defense was justifiable homicide in self-defense. The view we are constrained to take of this case renders it unnecessary to pass upon the questions raised by the assignment of errors, except the one that the verdict is contrary to the evidence. Under the evidence in this case as to whether or not the killing was in necessary self-defense was a question of fact for the jury. The right of the defendant to use sufficient force to eject the deceased from his office did not in itself justify his assault by a deadly weapon. If after remonstrance an invasion of the premises of another presumably for the purpose of assault cannot otherwise be prevented, it may be justifiable homicide to kill the person so forcibly invading. Our Code provides (■Comp. Laws 1909, sec. 2290; Eev. Laws sec. 2334,) in so far as applicable, as follows:

“When resisting any attempt to murder such person, or to commit an}»- felony upon him or her, or upon or in any dwelling house in which such person is; or, when committed in the lawful defense of such person, * * * when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.”

If a man, though in no apparent danger, kills another through fear, undue alarm, or cowardice; under the belief honestly entertained that great personal injury is about to be inflicted upon him, it cannot be claimed that under such circumstances he would be justified in so doing, because the belief would be an unreasonable one, and not justified by the circumstances in which he was placed. The right of self-defense is founded on the law of necessity, and can only be exercised when the slayer is acting under a reasonable belief arising from the circumstances of the case, as they appear to him, that his life is in imminent danger, or that he is in danger of great personal injury, from some overt act of his ássailant, and that the danger was so urgent and imminent at the time of the killing that it was necessary for him to take life to protect his own. The reasonableness of the defendant’s belief must be determined from his standpoint, but it is a question for the jury as to whether he had sufficient grounds upon which to base such belief. And if there is a conflict in the evidence, or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts. It is no more the province of the appellate court than of the trial court to determine controverted questions of fact arising upon conflicting evidence.

The instructions of the court fully and fairly covered the law of justifiable homicide in self-defense. The court, however, for some reason not apparent from the record, submitted to the jury the issue of manslaughter in the second degree. It must be admitted that the evidence in the case does not show, or tend to show, any of the elements or ingredients of manslaughter in the second degree, even assuming the facts to be as claimed by the defendant, and as shown by the evidence offered on his behalf. Obviously, when the homicide is admitted, and justification in self-defense is relied upon as a defense, there can be no element of manslaughter in the second degree, even where the defendant does not testify as in this case. Our procedure criminal provides that the jury may find the defendant-guilty of -any offense, the commission of which is necessarily included in that with which he .-is, charged in the indictment or information and “when it appears that a defendant has committed a public offense, and there is reasonable ground of doubt ijn which of two or more degrees he is guilty, he can be convicted of the lowest of such-degree only.” Section 6829 and section 6875, (Rev. Laws, secs 5877 and 5923). The law makes it, however, the duty of the court in charging the jury, where there is no evidence tending to prove the commission of an ojíense which is necessarily included in the offense charged, to refuse to instruct on such included offense or lower degree of the offense charged in the indictment or information, and it is the settled rule of decision in this state that it is the duty of the trial court to say in a homicide case, as a matter of law, whether there is any evidence that would tend to reduce the degree of the offense to manslaughter in the second degree. Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622. Says Mr. Wharton:

“The province of the court on an issue as to the degree of a homicide is to guide and direct the jury, and keep them within proper bounds. It is its duty to determine whether competent evidence has been introduced, which, if believed by the jury, would furnish the elements or ingredients of any particular grade of homicide.” (Wharton on Homicide [3d Ed.] p. 241.)

There seems to be a growing laxity in the observance of the rule which requires trial courts to confine the instructions to the included offenses or lesser degrees which the evidence tends to prove. While this court has not been called upon to construe our singular constitutional provision (article 2, sec 21), “nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he lias been acquitted,” trial courts should not be unmindful of the fact that it is a matter of grave doubt whether a defendant after having been acquitted of the higher offense and convicted of an included lower or inferior one may again after having secured a new trial be placed upon trial for the higher offense charged in the indictment or information.

In this case the instructions submitting the issue of manslaughter in the second degree were not excepted to by the defendant, and errors can be made available on appeal only by exceptions duly taken on the trial.

If the jury in mercy or sympathy for the defendant or by mistaken view of the law or the facts finds the defendant guilty of manslaughter in the second degree, in a case where the law and- the facts make the crime murder or manslaughter in the first degree, it is an error in favor of the defendant of which the law will not take cognizance and of which the defendant cannot complain. Where the issue has been submitted, the jury have the undoubted power to fix the crime in the lowest degree when it ought under the law and the evidence to be fixed in a higher degree. We have given a careful consideration to this case, and we do not find that any injustice has been done the defendant.

The judgment of the district court of Pontotoc county is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    EVERETT BROOKS v. STATE.
    No. A-1732.
    Opinion Filed May 3, 1913.
    (131 Pac. 728.)
    RAPE — Sufficiency of Evidence. In a prosecution for statutory rape, the evidence is held 'to support the verdict and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Le Flore County; W. II. Brown, Judge.

    Everett Brooks was convicted of statutory rape, and he appeals.
    Affirmed.

      Tom W. Neal, for plaintiff in error.

      8. C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Everett Brooks, was convicted of the crime of statutory rape committed on Maud Alton, an unmarried female over the age of 16 years and tinder the age of 18 and of previous chaste and virtuous character, on or about June 15, 1910, and in accordance, with the verdict of the jury was sentenced to serve a term of five years’ imprisonment in the penitentiary. The judgment and sentence was entered November 18, 1911. To reverse the judgment, an appeal by case-made was perfected.

Briefly stated, the salient facts are as follows: Maud A1--ton’s testimony is in part in the words as follows:

“He began going with me in the spring after my mother died in the winter. He always seemed to be a very nice young man until along about December, 1909, and then he began to make indecent proposals to me, and I refused him and asked him if I got in a bad condition what would he do. He said he would go to Poteau and get the license and come back and have the ceremony. I never did give up and he always had such talks until in. April, 1910, and then he began trying to have intercourse with me and never did succeed until along in June, and then he did have intercourse with me off and on until in November, and I had never had anything to do with any other young man that way, and in November I got in a bad condition and I told him and he proposed for me to go to my uncle’s in Tennessee and get shut of it, and no one here would know anything about it, and I refused to go.”

Joe Brooks testified that the defendant said to him:

“That Maud Alton was in a bad fix and that she was going to Tennessee, and that she would get shut of the trouble there and that he would bear her expenses; that ‘she says it is mine but I’ll be damned if I will ever own it,’ but that he had had intercourse with her.”

Mrs. Tina Brooks testified that she heard the defendant say that he had had intercourse with Maud Alton and he believed that she was going to lay it on him, and he intended going to the doctors and get something to make her miscarry.

Will Haggard testified that the defendant told him of having had intercourse with Maud Alton.

Lige Alton testified that Maud Alton is his daughter; that she was 17 years of age March 24, 1910; that his wife died in 1905 and Ms daughter Maud kept bouse on bis farm for bis family consisting of her' and a younger sister and brother; that the defendant for several years had been calling on his daughter, and they had been going to church, prayer meetings, and entertainments together.

Six or seven witnesses testified to the previous chaste and virtuous character of the prosecutrix.

■ On behalf of the defense some testimony was offered tending to show that prosecutrix was not of previous chaste and virtuous character. The defendant did not testify on his own behalf.

The petition in error contains many assignments. The principal grounds relied upon for a reversal are based upon the rulings of the court on the admission of testimony and requested instructions refused to be given by the court.

We have carefully examined the record • and the rulings complained of and can find no injustice done the defendant upon the trial by the rulings upon the admission of evidence or the instructions of the court. The alleged errors do not seem to us to merit special consideration. The trial was in every respect a fair one, and, considering that want of previous chaste and virtuous character, the only defense relied upon, was but feebly supported by the evidence, we think the only mistake apparent from the record was made by the jury in assessing the-minimum punishment prescribed by the law. A case seldom appears in criminal annals showing more depravity in the defendant or a greater outrage to common decency and public-morals.

A miscreant who would entice an unsophisticated motherless girl to submit to his lust by pretense of love and promise of' marriage, and after his victim’s hope, happiness, and life have been essentially destroyed finally adds infamy to his iniquity by attempting to destroy any vestige of character his victim may possess by denouncing her before the world as a wanton, is .deserving in full measure the punishment prescribed. It is-, apparent from the record that justice, though somewhat lame, has been long due, bnt the day of the defendant’s atonement is at hand.

The judgment is affirmed. Mandate forthwith.

ARMSTRONG, P. J., and FURMAN, J., concur. .


author: FUEMAN, J.

text:
    WALTER HOWARD v. STATE.
    No. A-1524.
    Opinion Filed May 3, 1913.
    (131 Pac. 1100.)
    1. LARCENY — Principal and Accessory — Prosecution, (a) The fact that a person who is concerned in the commission of a felony may attempt to conceal or to aid another person who may also be concerned in the commission of such offense to escape from arrest will not make such person so aiding his codefendant an accessory, but he still will be liable to be tried and punished as a principal offender.
    (b) For facts which do not show that a defendant who was charged with larceny should have been acquitted upon the ground that he was only the receiver of stolen goods, see opinion,
    2. SAME — Evidence—Possession of Stolen Goods. The contemporaneous possession of recently stolen goods may be admitted in evidence for the purpose of throwing light upon a particular larceny for which a defendant was then upon trial.,
    3. SAME — Accusation—Allegation of Place. The right of possession as well as the right to the property remains at all times in the .owner as a matter of law where' property has been stolen in another state and brought into this state, and it may be alleged in an information or indictment that such larceny was committed in any town, or city, or county into or through which such stolen property had been brought.
    (Syllabus by the Court.)

      Appeal from, District 'Court, Washita County; James It. Tolbert, Judge.

    Walter Howard was convicted of larceny of a horse, and he appeals.
    Affirmed.

      It was proven that on the night of the. 14th day of January, 1910, there were stolen from the ranch of W. E. Tandy in Roberts county, Tex., two horses and a saddle, the property of said Tandy. The animals were traced from Texas into Oklahoma. About 60 days after the theft some officers of Wash-ita county, Okla., went to the house of Gus Howard in said county about 9 o’clock at night. Gus Howard was called to the door and informed that he was under arrest. He requested permission to go back in the house to dress himself before accompanying the officers. He also informed the officers that no other persons were present. The house was dark on the inside. The officers entered the house with Gus Howard. Some difficulty was experienced in getting a light. When the lamp was lighted, R. F. Graham and appellant covered the officers with their pistols, and forced. them to permit themselves to be dis-a tuned. Prior to this time the officers did not know that any one was present except Gus Howard. The officers informed appellant and Graham that they only desired to arrest Gus Howard, and requested to be permitted to take him and leave. But they were not allowed to do this by appellant and Graham. Graham and appellant held their pistols on the officers until they were dressed. They then marched the officers out of the house about 300 yards when Graham and appellant permitted the officers to return to the house. They then started off on foot. The officers returned to the house and remained there that night. They found on the premises of Gus Howard the two horses and the saddle stolen from Tandy, and also a considerable quantity of other stolen property. As soon as it was light the next day, the officers, having- obtained blood hounds, took the trail of appellant and Graham, and followed them about 16% miles to the house of Bob Howard. They there found appellant and Graham concealed in a well about 3% • 'feet square which had a plank covering. Appellant and Graham were armed -with automatic pistols and a Winchester, and abundantly supplied with ammunition. After some persuasion and seeing that escape was impossible, appellant and Graham finally passed their arms out, and came out of the well and surrendered. It was also proven that Graham stated that he and appellant had gotten together about the 1st of January, and that he, Graham, had been at the house of appellant some time in January. The record fails to show that an exception was reserved to this testimony. On the contrary, some of it was drawn out by questions asked by counsel for appellant. Tandy testified that he had never seen Graham until after the theft was committed, but that he had known appellant for two or three years, that he had seen appellant in Canadian, Tex., a time or two, and that some time in November prior to the theft of his horses ■and saddle appellant said he had helped witness take a bunch of cattle up the river.
    Appellant did not testify in his own behalf, but produced a number of witnesses who testified that they saw him in Eoger Mills county on the 14th day of January, 1910.

      Echols & Merrill, for appellant.

      G. J. Davenport, Asst. Atty. Gen., for the State.
   FUEMAN, J.

(after stating the facts as above). First. It is not claimed that appellant did not have a guilty connection with the stolen property, but it is earnestly contended that the evidence does not sustain a verdict for grand lanceny, but that it makes out a case showing that appellant was merely an accessory to the crime committed, or, at most, that he was guilty of knowingly receiving stolen property. We cannot agree with either of these contentions. Section 2046, Comp. Laws 1909 (Eév. Laws, sec. 2135), with reference to accessories, is as follows:

“All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.”

The testimony in this case clearly shows that when the appellant aided his eodefendant, Graham, in escaping from ,the officers, he was not trying to aid and protect Graham any more than he was trying to aid and protect himself. It is impossible to explain his conduct on this occasion upon any other hypothesis than that he was as much a party to the crime as Graham was. In fact, at this time no charge was pending against either' Graham or appellant. Gus Howard was then the only person the officers were after. The conduct of appellant therefore was not prompted by a desire to prevent the arrest of Graham, for no one then wanted t'o arrest him. His action cannot be considered other than as a tacit confession of his guilt. Therefore the law of accessory does not apply. There is no proof that appellant received the stolen property from Graham, or from any one else. All of the testimony points clearly to the conclusion that appellant and Graham were acting together as copartners in a general plan or scheme of theft. It is true that appellant did attempt to establish an alibi by proving that he was at home on the 14th day of January when the horses and the saddle were stolen, but his evidence on this subject is not different from that which could be produced by any thief on such an occasion, and the force of his testimony on this subject is entirely destroyed by his own conduct when found in possession of the stolen property. The proof is undisputed that appellant was acquainted with Tandy, and had been on Tandy’s place in Texas, and claimed to have assisted Tandy in driving a bunch of cattle. There is no proof in the record that Graham was ever on Tandy’s place, or ever in the state of Texas. The defense of knowingly receiving stolen property, if applicable to either of these defendants as against this information for larceny, could be made with a much greater showing of reason and justice in favor of Graham than in behalf of appellant. Where there is no question as to the guilt of an appellant, this court does not feel called upon to make nice hair-splitting distinctions as between different offenses. We are far more concerned in the enforcement of substantial justice, the punishment of criminals, and the suppression of crime in Oklahoma, and thereby protecting honest people in their property and rights, than we are in establishing a fine-spun system of criminal jurisprudence.

Second. Over the objection and exception of appellant, the state was permitted to prove that three sets of harness, two saddles, three horses, a cook stove, and some clothing were found at Gus Howard’s place in Washita county at the time when the arrest in. this ease was made, and it was proven without objection that this property was' pointed out to the officers as belonging to appellant and his codefendant, Graham. It was also proven that all of this was. stolen property. We think that evidence of these contemporaneous thefts and the contemporaneous possession of such other stolen property was competent. See Davis v. State, 7 Okla. Or. 322, 123 Pac. 560. All of this evidence strongly tended to show that a partnership in crime, of which .the larceny of the horses in question was a part, existed between appellant and Graham.

Third. The evidence shows that as a matter of fact the horses and saddle were stolen in Eoberts county, 'Tex., and were brought into Washita county, Okla., while the information alleges that the property was stolen in Washita county, Okla. This was permissible under our statute. Section 2605, Comp. Laws 1909 (Rev. Laws, 2666), is as follows:

“Every person who steals the property of another in any other State or county, and brings the same into this state may be convicted and punished in the same manner as if such larceny had been committed in this state; and such larceny may be charged to have been committed in any town or city into or through which such stolen property has been brought.”

Discussing this very question in the ease of Bivens v. State, 6 Okla. Or. 629, 120 Pac. 1037, Judge Doyle said:

“The right of possession, as well as the right of property, remained in the owner all the time as a matter of law, if the original taking and transportation of the property was under such circumstances as constituted a larceny.”

The instructions in this case are open to criticism; but, owing to the conclusive character of the testimony, appellant could not have been injured thereby, for no honest and intelligentjury could come to any other conclusion than that appellant had a guilty connection with the larceny of the property in question. To our minds it is plain that, if appellant was not the original thief, he was a party to the entire transaction, and was sharing in the fruits of the theft, ■ and we are not willing to place a strained construction upon the law in order that Oklahoma may become a refuge or asylum for those who depredate upon the property of the people of an adjoining state. The revérsal of this conviction would in our judgment amount to a miscarriage of justice.

The judgment of the lower court is in all things affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    W. P. GREENWOOD v. STATE.
    No. A-1547.
    Opinion Filed May 7, 1913.
    (131 Pac. 940.)
    INTOXICATING LIQUORS — Illegal Sale — Prima Facie Evidence. The payment of the special tax required of liquor dealers by the United States by a defendant constitutes prima facie evidence of an intention tjieneeforth, during the term of the license, to violate the prohibition law.
    (Syllabus by the Court.)

      Appeal from Tulsa County Court; N. J. Gubser, Judge.

    W. A. Greenwood was convicted of. violating the- prohibitory law, and appeals.
    Affirmed.

      Davidson & Williams, for plaintiff in error.

      Chas. West, Atty. Gen., -Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Spec. Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the county court of Tulsa county, on October 31, 1911, of the offense of tmlawfully baying in his possession intoxicating liquors with intent to violate the prohibitory law. To reverse the judgment there was filed in this court December 21, 1911, a petition in error with ease-made.

Yarious errors are assigned, none of which we deem it necessary to discuss, for the reason that it appears from the testimony of the defendant as a witness on his own behalf that he is guilty of the offense charged. The defendant admitted the payment of the special tax required of liquor dealers by the United States, which designated his place of business as the place where the intoxicating liquors were found, and he admitted "that he had run that joint awhile.” The term of the government license did not expire until the end of the following June. Even if the case was close, the several assignments of error are of such a trivial character as to be undeserving of any consideration.

The judgment is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


author: PEE CTJEIAM.

text:
    JIM GILBREATH v. STATE.
    No. A-1895.
    Opinion Filed May 10, 1913.
    (131 Pac., 941.)
    APPEAL — Time of Taking. Where an appeal is not taken within the time prescribed by the statute, this court is without jurisdiction to review the judgment.
    ('Syllabus by the Court.)

      Appeal from Greer County Court; J arret Todd, Judge.

    Jim Gilbreath was convicted of violating the prohibitory law, and brings error.
    Dismissed.

      John Evans and J. L. Carpenter, for plaintiff in error.

      ■Chas. West, Atty. Gen., and C. J. Davenport, for the State.
   PEE CTJEIAM.

The plaintiff in error was convicted on an information which charged that he did unlawfully sell whisky, and in accordance with the verdict of the jury was sentenced to serve a term of six months in the county jail and to pay a fine of $500. The judgment and sentence was entered September 17, 1912. From the judgment an appeal was attempted to be taken by filing in this court, January 15, 1913, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal herein, and as grounds therefor says:

“That this is an attempted appeal from a conviction for violation of the prohibitory laws; that the judgment was entered on September 17, 1912, at which time defendant was given 30 days in which to make and .serve a case-made, to be filed in this court within 60 days from said date; that thereafter on October 14th an extension of 30 days was made, ‘making in all 60 days from the date of judgment and sentence herein, in which to make, serve, have settled and signed, and for filing his appeal to the Criminal Court of Appeals of the state of Oklahoma;’ that thereafter, on November 15th, an order was made granting defendant 30 days from said date, ‘making in -all 90 days from the time and date upon which the motion of the defendant for a new trial herein was held, in which to make, serve, have signed and settled, and filed case-made in said cause, and in which to perfect appeal herein of said cause to the Criminal Court of Appeals of the state of Oklahoma’; that thereafter, on December 14th, an order was made allowing defendant ten days from said date in which to perfect appeal, said time being allowed to make, serve, have signed and settled, and for filing case-made in the court below and in this court; that said petition in error and case-made were not filed in this court within the ten days last above named, but filed long thereafter, to wit, January 15, 1913.”

No answer to this motion has been filed, and no response made thereto.

It appearing from the record that the motion to' dismiss is well taken, the appeal is dismissed, and the cause remanded to tbe county court of Greer county, with direction. to enforce its judgment and sentence therein.


text:
    N. C. BOUIE v. STATE.
    No. A-1508.
    Opinion Filed May 7, 1913.
    (131 Pac. 953.)
    1. RAPE — Assault to Commit — Sufficiency of Evidence. In a prosecution for assault with intent to commit rape upon a female child under the age of consent, the evidence is held to support the verdict and that no reversible error was committed on the trial.
    2. SAME — Defense. Since, by statute, a female child under the age of consent is legally incapable of consenting to carnal knowl-' edge of her person, she is incapable of consenting to an assault upon her with intent to commit rape, and every act done in furtherance of a purpose and intent to know her carnally is unlawful and felonious; and, if such acts would constitute an assault if done without her consent, then no act of hers can waive the assault.
    3. SAME — Assault to Commit Rape — Res Gestae — Complaint Made. Where it appears, in a- prosecution for assault to commit rape upon a child of tender years, that immediately after the alleged assault she was crying and met an older sister and then and there made complaint, not only the fact that such complaint was made, but the complaint as made, is admissible as part of the res gestae.
    4. TRIAL — Argument of Counsel. The prosecuting attorney has the right and privilege in his argument to the jury to refer to ■ the evidence and state his deduction therefrom and urge upon the jury the truth or falsity of any testimony given in the case.
    5. APPEAL — Argument of Counsel — Presentation for Review. Misstatements of the prosecuting attorney in his address to the jury cannot be reviewed on appeal, where the only evidence thereof contained in the record is recitals in the motion for new trial.
    6. APPEAL — Refusal of Change of Venue. Since Comp. Laws T909, sec. 6766 (Rev. Laws, 5811), leaves an application for a change of venue to the sound discretion of the trial court, a refusal to grant such change will not he disturbed on appeal in the absence of an abuse of discretion to defendant’s prejudice..
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County, B. McMillan, Judge.

    N. C. Bouie was convicted of assault with intent to commit rape, and he appeals.
    Affirmed.

      Thompson & Patterson and Carr & Field, for plaintiff in error.

      Chas.- West, Atty. Gen., Smith C. Matson, Asst. Atty Gen., and J. S. Estes, for the State.
   DOYLE, J.

The. plaintiff in error was tried upon an information for assault with intent to commit rape. He was found guilty and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for a term of four years and six months. The judgment and sentence was entered on the 3d day of June, 1911.

The noticeable assignments of error are confined to three points.

The first concerns the refusal of the court to grant a change of venue. Our Code leaves such an application to the sound discretion of the trial court (section 6766, Comp. Laws 1909, Rev. Laws, 5719), and unless it appears that such discretion was abused to the prejudice of the defendant this court cannot interfere. Edwards v. State, ante, 131 Pac. 956, and cases therein collated. The record shows some seventeen affidavits in support of the application and about forty-five counter affidavits. Upon this showing the court overruled the application. The record shows that the defendant was given an opportunity. to make a further showing in the matter after the court’s ruling by examining a number of witnesses on behalf of the defendant, and then the application was again overruled. There is nothing to indicate that the court abused its discretion in the matter or acted arbitrarily.

The second ground upon which error is assigned is that the evidence is not sufficient to support the conviction and that the court erred in refusing to grant the motion to direct a verdict of not guilty.

The facts of the case, as we gather from the evidence, are as follows: . The defendant lives on a farm within a mile of Stratford. On Saturday, November 12, 1910, the defendant took several children from Stratford in his wagon to a pecan grove on his farm to pick pecans, under an arrangement whereby he was to give the children one-half of the pecans they picked. A short time after they arrived at the place, the prosecutrix, Iola McCurdy, nine years old, went with the defendant to the house 200 or 300 yards distant for water. She returned with some water in á cottolene bucket and was crying. Her testimony as to what transpired is in the words as follows:

“I stopped to pick the cockleburs out of my clothes. He said he would help me, and he helped me to pick them out. He unbuttoned my bloomers and laid me down. He unbuttoned his clothes, and he got on top of me and laid down on me. He took his — I don’t know. He put it on me, and said, ‘Did you have anybody do this to you before?’ and I said, ‘No, sir.’ I had to button my own clothes and he buttoned his. There was matter on my leg.”

That they then went to the pump, and he told her to return with the water the way she came. She was then asked, “Who was the first one who spoke to you?” and answered, “My sister Buby.” “Q. Did you tell Buby? A. Yes, sir; I told her.” That she said she wanted to go home, and the defendant came, and they all got into the wagon, and he took them home. And she told her mamma what the defendant had done to her.

Buby McCurdy testified that she was 12 years old; that when her sister Iola had been gone about 30 minutes she became uneasy and went to the fence and called her; that she answered and returned crying, and “she told me what Mr. Bouie had done to her.”

The testimony of several of the'children tends to show that while going home after the alleged assault the prosecutrix cried continuously.'

Frank Farris testified, as undersheriff, he went on the second day after with the two McCurdy girls and three or four other' persons to the place; that it was in the bed of a creek with banks six or seven feet high, and there was an impression in the sand.

J. B. Gillman testified that he was with the party and saw the impression in the sand in the bed of the creek; “that there was footprints, one very small and a large one, along there.”

W. IT. Goodwin testified he was with the party. His testimony is substantially the same as that of the others.

Mrs. McCurdy testified that the girls came home about 11 o’clock, and Iola was crying and told her what she was crying about.

The defendant testified on his own behalf “that Mr. Mc-Curdy’s little girl said she wanted a drink and would go with me and take back a bucket for the other children. She went with me to the well, and I got her the water, and I went to the house, and when I returned to where they were picking pecans she was crying. I asked the- child -if any of them whipped her, and she said no, that she wanted to go back home, that she was hungry, and I took the children .home.” He denied having mistreated her in any way.

Counsel in their brief say:

“If the little girl had only cried out and frightened him away; if she had only kicked him with her feet, or slapped him in the face, or scared him or cried for help, or have prevented him from attempting to enter her in any manner — that it would then be an assault with intent to rape. But in the absence of any proof of this character, the case does not come yithin the definition of an assault with intent to rape, and that if the court will closely read the evidence, we think that it will bear out .our contention that the state has wholly failed to show that there was any attempt at penetration of the .person of Iola McCurdy. Granting all that she may have said to the jury to be true, there can be no conviction for attempted rape in this matter. We call attention further to the fact that under the law, in order to convict, the jury must be satisfied that an attempt was made to have sexual intercourse by force or fraud.”

Counsel’s contention is not tenable, and is without support in reason, law, or authority. The fact that the defendant was deterred from the consummation of his diabolical purpose and intent by reason of the youth and immaturity of his victim, and that she by reason of her youth, want of understanding, or trusting innocence, did not protest or resist, is no defense to the crime charged.

“Carnal knowledge of a female child under 16 years of age is rape under our statute, with or, without the use of force, no matter what may be the circumstances, and the question of consent is wholly immaterial; whether the prosecutrix submitted to the acts of the defendant in ignorance of Ms criminal intent, or whether she exercised a positive will, and consented or submitted to what the defendant did with full knowledge that Ms purpose and intent was to have carnal connection with her, is immaterial. The prosecutrix being under the age of consent .was conclusively incapable of legally consenting to an assault with intent to have carnal knowledge of her. Every attempt to commit a felony against the person involves an assault; and if the acts of the defendant, done in furtherance of a purpose to have carnal knowledge of the prosecutrix, constituted an assault to commit rape, if done without her consent, then no act of hers could waive such assault.” Lee v. State, 7 Okla. Cr. 141, 122 Pac. 111, and capes cited, holding that there may be an assault with intent to commit rape upon a consenting female where she is under the age of consent. )

Upon the record before us there can be no doubt but that the verdict of the jury, is amply supported, if the jury believed the evidence given on the part of the state. That the jury did believe this evidence is clearly established by the fact that they found the defendant guilty of the crime charged.

The remaining cause urged for a new trial is alleged misconduct of the county attorney in his closing' argument to the jury.

Several statements are set forth in the motion for a new trial that are not shown by the record. Recitals in a motion for new trial are not evidence of misconduct and cannot be reviewed on appeal unless properly incorporated in the record.

The record does show the following statements made by the county attorney in his closing argument:

"Turn this man loose .if you wish and put your stamp of approval upon his lecherous conduct, and let him go and rob the cradle and ruin other homes.”

That the county attorney stated to the jury that Ruby McCurdy, the sister of the prosecuting witness, had testified that Iola McCurdy had told her when she came up with the bucket of water what the defendant had done to her, and also stated to the jury that the mother had testified that the little girl told her when she came home what had been done to her. To which argument and statements of the county attorney the defendant’s counsel then and there objected and requested the court to instruct the jury to disregard them, which objections were overruled and requests denied.

The first statement complained of may be somewhat objectionable, but was probably provoked by the argument of the defendant’s counsel, and was made in reply to their demands to the jury for acquittal. It is clear that it was not such an impropriety as would be sufficient to set aside a verdict which on the evidence was just and proper.

The objections to the remaining statements are without merit. The prosecutrix was asked if she told her sister and her mother about the offense charged, and she replied that she did. The court refused to allow her or them to state what she said to them. This was error in favor of the defendant, as the complaints so made were admissible as a part of the res gestae.

“It is -admissible to show by the testimony of the prose-cutrix or other witnesses, "in corroboration of her testimony, that complaint was made shortly after the commission of the alleged offense, and when, where, and to whom it was made, but by the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony unless the statements are part of the res gestae(33 Cyc. 1463, and cases cited.)

Where the complaint is made immediately after the occurrence, it constitutes a part of the res gestae; and, where the party assaulted is of tender years, it would seem that not only the fact that complaint was made, but the particulars of the complaint as made, should be admitted. The county attorney’s argument in this respect was a proper discussion of the evidence, and it is evident to us that he was careful in confining his argument to the fact that complaint was made.

The instructions likewise were more favorable to the defendant than the testimony warranted.

It is apparent that justice has .been done, and the conviction ought not to be set aside except for some prejudicial error in the proceedings.

We have been unable to find any such error in this case. The judgment of the district court of Garvin county is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur. '