source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    PAUL COLLEGENIA v STATE.
    No. A-1496.
    Opinion Filed May 21, 1913.
    (132 Pac. 375.)
    1. HOMICIDE — Defense of Domicile — Right. A man has the right to defend his domicile against every unlawful invasion and to defend himself and those within it against every and all violence, without the necessity of retreat, even to the extent of taking life, if it be actually or apparently necessary to do so in order to prevent the commission of a felony thereon or therein.
    2. SAME — Defense of Domicile — Extent of Right. The. law in its humanity will not justify the taking of a life to repel a mere trespass or invasion of the home without felonious intent or in resisting a nonfelonious assault, but a man who is without fault may repel force with force in defense of his person, habitation, or property against any one or many who manifestly intend and endeavor with violence to commit a felony thereon or therein. In such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and, if in the conflict between them he happens to kill him, such killing is justifiable.
    3. ARREST — Homicide—Without Warrant — Resistance., A peace officer may arrest without- a warrant for a misdemeanor committed or attempted in his presence, and a person so arrested has no lawful right to resist. However, if the lawful power to arrest is exercised in such a wanton and unlawful manner as to make such officer a trespasser, resistance will be justified.
    4. HOMICIDE — Arrest Without Authority — Rights of Officers. A peace officer making an arrest without authority to do so occupies the same relations to the party arrested that any other private citizen would. He is a trespasser who has no right to detain the person, and hence no right to prevent an escape, and in preventing an escape he is still a trespasser.
    5. SAME — Questions for Jury — Evidence—Trespasser—Peace Officer. The defendant being, where he had a right to be, on his own premfses at the time the deceased assaulted him with a deadly weapon, and it being a disputed fact whether the defendant by his conduct in any way provoked the deceased to so assault him, the question was for the jury to determine as a question of fact upon all the evidence, and for this reason the court had no right in charging the jury to assume that the deceased as a constable and his deputies were not trespassers, and that the defendant was not without fault, or that the deceased as such peace officer was justified in making- an assault with a deadly weapon upon the defendant.
    6. TRIAL — Dufy to Instruct — Requests—Self-Defense. In a prosecution for murder, the court should instruct upon the law applicable to the case, whether requested to do so or not. The law applicable is determined by the accusation and the evidence introduced upon the trial, and, when the evidence tends to show justification in self-defense and in defense of habitation it is the duty of the court to submit instructions properly embracing the law of self-defense.
    7. TRIAL — Instructions—Weight of Evidence. On the trial of an indictment or information, questions of law are to be decided by the court and questions of fact are to be decided by the jury, and the court has no right in charging the jury to submit any proposition which assumes any particular controverted fact to be proven, which is an expression upon the weight of the evidence or credibility of a witness, or which requires the jury to give more credit to one class of testimony than some other. The jury must be left entirely free to determine all facts, the weight of the testimony, and the, credit to be given the witnesses.
    8. HOMICIDE — Instruction—Sufficiency of Evidence. The evidence reviewed, and held not to warrant a charge on murder.
    ('Syllabus by the Court.)

      Appeal from District ‘Court, Washington County; B. H. Hudson, Judge.

    Paul Collegenia was convicted of manslaughter in the first degree, and appeals.
    Reversed and remanded.

      J. B. Charlton, for plaintiff in error.

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

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter .in the first degree under an information filed in the district court of 'Washington county April 29, 1911, charging him°with the murder of W. PI. Jones in said county on or about the 15th day of February, 1911, and in accordance with the verdict of the jury was sentenced to serve a term of 15 years’' imprisonment in the penitentiary.

The judgment and sentence was rendered and entered May 29, 1911, and on the following day the defendant was delivered into the custody of the warden of the penitentiary at McAlester. To • reverse the judgment an appeal by ease-made, containing a complete transcript of the record and testimony, was perfected by filing the same with a petition in error in this court November 22, 1911.

At the trial there was evidence tending to prove the following facts: The defendant, Collegenia, is an Austrian, who at the time of the homicide was 28 years of age, and had been in this country about 5 years. During the greater part of that time he had lived about Bartlesville, working in the smelters, and had lived with George Solinsky, in Smeltertown, for about two years. Solinsky’s home was a two-room house on the. south side of the street, with a porch and two outside doors on the east side facing Conrad’s place, which was about 50 feet distant and nearer tlie street, with a door and porch facing the street. Between these houses towards the -rear was a shack. W. H. Jones, the deceased, was a constable of Jackson township, Washington county, and was a large, powerful man. With two deputies he went to Solinsky’s home, and while there made an assault with a deadly weapon upon the defendant in his dooryard,. and within the space of a few minutes the shooting became general and Jones received a mortal wound.

A substantial statement of the testimony of each witness who testified in the case is as follows:

The state’s first witness, Y. • D. McAlester, testified that W. H. Jones called him out of a pool hall in Bartlesville and told him that he wanted him to go to the end of the car line with him;, that there was some trouble down there, and deputized him to go with him as a deputy constable; that Oscar Kelly went with them; that they went to the end of the car line and then went west to Conrad’s place and found four Polaeks in there that had been having trouble; that they turned them out and some one threw a rock against the building, and they caught the man and left Oscar Kelly with'him, and they went around between the Solinsky house and the shack; that a young man came out of the shack with a beer bottle in his hand, and Jones grabbed the bottle, and the young man started to run in the shack, and they caught him as he ran in the door and put him under arrest, and “these men and three women tried to take him away from us, and the defendant came up.” The record then shows his testimony as follows:
“Q. What did he do? A. He came up to Jones and Jones told him to stay back, and he kept coming at him. Q. Describe to the jury what he did. A. I was in a position where I could not see exactly what he was doing, because Joues was between him and me; I seen him when Jones hit him with his revolver and knocked him down. Q. Then what happened? A. He ran at Jones and after he drew back to hit him I could not see. And Jones kept poking his revolver in his face and told him! to. stay back or he would shoot him, and finally Jones raised his gun and shot above his head, and this man turned and ducked right around the south side of this building, and he said, CI will kill you, God damn you/ Q. What then? A. By the time he got around to the north of this house he went into the door. , The door sets on the east side of the house, in the north room, and he went over to the northwest room and took a shotgun down off the wall and started to the door, and we went into Conrad’s place then. Q. Then what did he do? A. He turned and walked out this north door. Jones was a little bit in front of me, and we could see this man with the gun. Q. Who else went out with'you? A. I could not swear as to who else. Q. What door did you go out? A. At the north door. Q. What did you step on when you went out? A.' Stepped out on Conrad’s porch. Q. Go on and tell what happened. A. We seen this man in the door with a shotgun. Q. What door was he in? -A. In the north door of the Solinsky house. Q. What happened? A. He raised his gun as we stepped out of the house. Jones stood in front of me two or three feet west on the porch, and I was standing back of him. Q. Then what happened? A. This man with the shotgun fired, and we both commenced to shoot; I shot three shots and Jones shot the same; this man in the door shot the first shot; and when we shot the three shots Jones said 'that they had shot him. Q. Go on. A. As he said they had shot him Oscar Nelly took hold of him and we both took him in the honse. Q. Where was he shot? A. In the right leg, and one shot in the right hand, in between these two fingers.”

On cross-examination he stated that he had never been deputized before by Mr. Jones, and that after going into Conrad’s place he did not see anything to indicate that there was any disturbance out there, and he could not say why they went down between the shack and Solinsky’s house.

Oscar Kelly testified that:

“When we reached Conrad’s place we found four Poles in there and we put them out the front door :and told them to go on and go home; then somebody threw something and hit the comer of the house and Jones and I took 'after a fellow that was running and caught him and .arrested him, and I took the fellow into Conrad’s store. I could hear a noise between the two houses and told Conrad to take care of the man that I had, and I started out and met Jones and McAlester and went back into Conrad’s with them. We stayed in the house probably four or five minutes, talking about the situation, and then we stepped out on the porch'. A man was standing in the door of Solinsky’s house with a gun in his hands, and I heard a shot, and we all three fired. Some shot struck the corner of the house and some pop boxes that were on the porch and Jones was hit on the left side. I had a 45 pistol and fired two shots. I do not know how many shots Jones and- McAlester fired.”

Lincoln Luman testified that he was standing across the street in the idoor .of the south furnace .and as near as he could tell the defendant fired four shots; that he fired one shot and as quick as he could tell it the others fired; that he went back on the furnace and laid down, and the next morning he found four empty shotgun shells in Solinsky’s dooryard. On cross-examination he stated that he had no use for Polish people.

Ealph Yazel testified .that he was with Mr. Luman and saw four gun. flashes near Solinsky’s house, and that five shots were fired from Conrad’s porch.

Dr. O. S. Summerville testified that he was a physician and surgeon, and as such attended W. H. Jones, and that he died the second day after from the effect of a gunshot wound.

John Crane testified that he was a surveyor and made a survey of the scene of the homicide, and the Conrad and Solinsky’s buildings are about 60 feet apart.

On behalf of the defendant George Solinsky testified, through an interpreter: That he was a smelter worker, and the defendant lived in the north room of his house. That the first time he saw Mr. Jones he was holding a revolver in his - hand pointing it at somebody in the shack, and then Jones took somebody by the arm and the man got' away from him, and Jones- walked up to the defendant and hit him on the head with a revolver; the revolver went off; and the defendant fell to the ground. That Jones fired another shot after the defendant fell. That the defendant was not doing anything; he .was simply standing in the yard about five feet from the house and did not touch Jones. That somebody spoke and jones said he did not give a damn whether lie killed two or three Polaeks. That the defendant called to his wife “that she should go for a doctor, Jtor Jones liad killed him.” That his wife went after a doctor and he and another party carried the defendant into his room. That he took his child and went into the house, and shortly afterwards several bullets were shot into the house. That when the shooting was over defendant was lying in the yard unconscious.

Tilla Solinsky testified through an interpreter that she was standing in the door when a man walked out of the shack and Jones grabbed him by the arm; that several men followed the man out and' asked Jones why he wanted him; that the defendant was standing in their yard and the man got away from Jones and then Jones hit the defendant over the head with a revolver and it went off; that Jones moved away two or three feet and' shot again; that the defendant fell and the blood run out of his forehead and he said in Polish, “They have killed me, go for a doctor,” that she gave her child to her husband and went to the smelter and phoned for a doctor; that she was gone about five minutes and when she came back the defendant was lying on the porch unconscious; that the defendant did not touch Jones.

Antono Belitz testified, through an . interperter: That he was standing in Solinsky’s dooryard when the boy came out of the shack and Jones grabbed him by the arm. The boy did not want Jones to take him. That the defendant was standing a few feet distant from where the Americans were standing, and Jones asked the defendant what he was doing, and the defendant did not say anything. The boy got away from Jones and Jones came over to the defendant and struck him with the revolver. The defendant yelled that he was dying and that Jones had shot him; and Jones fired another shot at him. That witness was afraid that Jones would kill everybody and he ran into the house.

The defendant, as a witness in his own behalf, testified, through an interpreter: That he was looking at what Mr. J ones was doing with the boy, and Mr. J ones hit him on the head with the revolver and he fell to the ground, and that was all he knew, .except he had a feeling that he was shot in the side while lying there. That when he became conscious the doctor was caring for him.

Dr. J. F. Athie testified that he was a physician and surgeon; that he was called to attend the defendant and reached Solinsky’s place about 30 mnutes after he was called, and found the defendant with a cut about three inches in length on the left side of the forehead which went through the scalp to the skull. Also a bullet wound in the left thigh. The scalp wound appeared to have been made by a round metallic instrument, and he sewed it up by putting in four or five stitches; that the bullet passing through the thigh had ranged upward; that he treated him for about two weeks or -more. He was asked:

“Q. What would be the probability of a blow of that kind being received, and a man walking around and not being unconscious as a result of that blow? A, He could walk-around and might not know what he was doing?”

In rebuttal J. H. Potts testified that he was night watch at the smelter, and that it was after all the shooting was over that Tillie Solinslcy came to the smelter office and phoned for a doctor; that he heard several shots. If a man would say 25 he would not dispute it, and the shooting did not last more •than a half minute at the outside, with one shot about five minutes before.

No brief has been filed on behalf of the defendant, and we have not been favored with an oral argument in his behalf. The petition and motion for new trial allege that the instructions given by the court to the jury do not state the law-applicable to the case.

It cannot be doubted that the issue of controlling influence upon the merits was whether the homicide was justifiable in self-defense. The instructions given by the court make no reference whatever to the law of justifiable homicide, as defined by section 2334, Rev. Laws, which provides that:

“Homicide is also justifiable when committed by any person in either of the following cases: First. When resisting any attempt to murder such person or to commit any felony upon him, or upon or in any dwelling house in which such person is. Or, second, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, 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.”

While it does not appear that such instructions were requested, nevertheless the defendant was entitled to have his case submitted to the jury on instructions fairly applicable to the evidence introduced in the case, including a correct statement of the defendant’s right of self-defense under the particular circumstances disclosed by the evidence’.

. Our Criminal Code (Comp. Laws 1909, sec. 6857, Rev". Laws, 5905), provides that:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their ■ information in giving their verdict.” ' • ■

It was the dirty of the court to charge the jury as to all the law applicable to every state of facts fairly supported by tiie evidence. It is apparent from the record that the court erred in charging the jury as complained of. Of course such a conviction cannot ■ be sustained.

The evidence on the part of the state is remarkable, hot for what the two deputy constables who went to the home of the defendant with the deceased say as to what their purpose was, but as to what they do not say. The one who was present when the brutal assault was . made upon the’ defendant only attempts to justify it by saying the defendant was advancing upon the deceased.

TJnder the facts as disclosed by the evidence, wé are inclined to think the deceased and his deputies, as peace officers, without a warrant or other process, were trespassers upon the premises of the defendant, as at most the evidence only tends to show a mere suspicion -that some person had there committed a misdemeanor in their presence. The deceased, as a peace officer, was not justified in striking down and shooting at the defendant on his own premises, unless in necessary self-defense. Sharp v. United States, 6 Okla. Cr. 350, 118 Pac. 675. And there is no evidence tending to show that the deceased assaulted the defendant in the fjrst instance in self-defense. ' ' '

The only positive testimony as to how the assault was made is that of four witnesses who stated that it was ' unprovoked by -the defendant in any way, and if the deceased was not a trespasser ■ before the assault, he became ■ a' tres-' passer by his unlawful conduct, and the defendant then had the right to defend himself and to use all force necessary to resist further invasion of his home by the deceased and his deputies armed with deadly weapons.

It is undisputed that the deceased, as- a constable, was not serving process, and no claim was made that he had reasonable cause to believe that any person there had committed a felony. In fact, there is an entire absence of any evidence as to what their purpose was in going upon the premises of the defendant, other than the naked unexplained statement that they were arresting a hoy.

The state’s testimony tended to show that the defendant, after thé assault upon him, went into the house and armed himself with a shotgun and stood in his door, and that when the officers appeared on Conrad’s porch he fired the first shot. It does not appear that the defendant admitted these facts, and, considering the circumstances in evidence, it might be a matter of some doubt as to whether or not the fatal shot was fired while the defendant was lying there unconscious.

The defendant and the people he lived with did. not speak the English language. His testimony and the testi- ' mony of his witnesses, excepting Dr. Athie, was delivered in a foreign tongue and reached the Jury only through the medium of an interpreter; and in that process the testimony on his behalf may have lost much of the fullness and force which ordinarily testimony derives by being transmitted directly to the court and the jury in their own language. However, it is undisputed -that the deceased and his deputies appeared at the end of the porch next to the defendant’s house with their guns presented, and that the several shots then fired were all within the space of a minute, and that the .deceased and his deputies did shoot at and through the defendant’s house, knowing at the time that persons other than the defendant, including women and children, were in the house. When -there is an armed invasion on the premises or habitation of another, and an assault is there made with .a deadly weapon, the person assaulted may well assume that the other intends murder whether he does in fact or hot, and if he kills his assailant he is justifiable.

A man has the right to defend his domicile against every unlawful invasion and to defend himself and those within it against every* and all violence, without the necessity of retreat, even to the extent of taking life, if it be actually or apparently ne.cess.ary to do so- in order to prevent the commission of a felony thereon or therein. Semayne’s Case, 3 Coke, 91; Foster's Crown Cases, 273; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; Stoneham v. Commonwealth, 86 Va. 523, 10 S. E. 238; Wrigiht v. Commonwealth, 85 Ky. 123, 2 S. W. 904; State v. Taylor, 143 Mo. 150, 44 S. W. 785; Thompson v. State, 61 Neb. 210, 85 N. W. 62, 87 Am. St. Rep. 453; Beard v. United States, 158 U. S. 550, 15 Sup. Ct. 962, 39 L. Ed. 1086; Kirk v. Territory, 10 Okla. 46, 60 Pac. 597; Mahaffey v. Territory, 11 Okla. 213, 66 Pac. 342; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.

Says Clark:

“It has. become a maxim of the common law that a man’s house is his castle, but this expression is not to be taken as meaning that a man may under any .and all circumstances kill in defense of his dwelling house. A man is not bound to retreat from his house. He may stand his’ ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even .a lodger in the house, may meet the intruder at the threshold and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable. The doctrine, however, does not justify a homicide merely to prevent a -trespass upon the habitation, when it is evident that there is no intention to commit, a felony or to inflict great bodily harm upon an inmate. Of course, in defending his habitation, a roan must act upon appearances, and if be acts in the bona fide and reasonable belief that the assailant intends a felony or great bodily harm to an inmate, and kills -him to prevent his entry, the homicide is not criminal though he was mistaken as to the assailant’s intention.” (The Law of Crimes, Clark & Marshall, 2d Ed., 4-09.)

It is true that the authorities agree that the taking of life in defense of one’s person, habitation, or property cannot be justified except upon the ground of necessity, actual or apparent, to prevent the commission of a felony on either, and that such necessity must be imminent at the time; and they also -agree that no man can avail himself of such necessity if he brings it upon himself.

The law in its humanity will not justify -the taking of life to repel a mere trespass or invasion of the home without felonious intent or in resisting a nonfelonious assault; but a man who is without fault may repel force with force in defense of his person, habitation, or property against any one or many who manifestly intend and endeavor with violence to *commit a felony thereon or therein. In such ease he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and, if in the conflict between them he happens to kill him, such killing is justifiable.

The defendant being, where he had a right to be, on his own premises at tire time the deceased assaulted him with a deadly weapon, and it being a disputed fact whether the defendant by his conduct in any way provoked the deceased to so assault him, the question was for the jury to determine as a question of fact upon all the evidence, and for this reason the court had no right in charging the jury to assume that the deceased, as a constable, and his deputies were not trespassers, and that the defendant was not without fault, or that the deceased, as such peace officer, was justified in making an assault with, a deadly weapon upon the defendant. It also appears that there is no instruction limiting the force or defining the manner in which an arrest may be made by a peace officer without a warrant.

The court gave'the following' instruction:

“You are instructed that if you believe from the evidence in this case, beyond a reasonable doubt, that the deceased, W. H. Jones, was in the performance of his duties as a constable at the scene of the -fatal encounter, and that he had arrested a person, whose - name is not disclosed by the evidence in this case, for the commission of a misdemeanor in the presence of -the deceased, and that the defendant, together with divers other persons, attempted to rescue said person, or to aid in his escape, and that the deceased struck the defendant with his revolver for the purpose of preventing such escape, and that the defendant, while in the possession of his faculties, and with the premeditated design to effect the death of the deceased, went to the house where he lived, procured’ a shotgun, came out of the house, and with the said shotgun shot and wounded the deceased, and that thereafter and on the 17th day of February, 1911, in Washington county, state of Oklahoma, the deceased died as a result of said shooting, then and in that event the defendant is guilty of the crime of murder, and the jury should so find.”

Our Criminal -Code provides by whom and how arrests may be made. The sections bearing on this case are as follows:

Section 5647, Rev. Laws:

“If the offense charged is a felony, the arrest may be made on any day, and at any time of- the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate indorsed upon the warrant.”
Section 5650: “The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant if required.”
• Section 5654: “A peace officer may, without a warrant, arrest a person: First. For a public offense, committed or attempted in his presence. Second. When the person arrested has committed a felony, .although not in his presence. Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.” .
Section 5655: “To make an arrest, as provided in the last section, the officer may break open an outer or inner 'door or window of a dwelling house, if, after notice of his office and purpose, he be refused admittance.”
Section 5656: “He may also at night, without a warrant, arrest any person who he has reasonable cause for believing to have committed a felony, and is justified in making the arrest though it afterward appear that the felony had not been committed.”
Section 5657: “When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense, or is pursued 'immediately ■ after an escape.”

An arrest by a peace officer without a warrant for a public offense committed or attempted in his presence, made in substantial compliance with the terms of the statute, is a legal arrest, which no one can lawfully re'sist, and the officer may ,use whatever force is reasonably necessary to prevent an escape and secure the offender, but the officer must use no more force and violence than is reasonably necessary to secure the arrest. To make, -or attempt to make, such an arrest in disregard or in violation of the provisions of the statute is an illegal act, which the person about to be arrested is not required to submit to.

The right to resist an unlawful arrest under' provisions of the Dakota Code, identical with the provisions of our Code quoted above, is discussed in the case of Bad Elk v. United States, 177 U. S. 529, 3 Sup. Ct. 729, 44 L. Ed. 874, Mr. Justice Peckham, speaking for the court, said:

“The charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no ofEense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist' an attempted illegal arrest, the jury 'were informed that 'the policeman had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

In making an arrest without a warrant • for a misdemeanor committed in the presence of the officer, the fact that such an offense was committed or attempted must exist to authorize the officer to act. In this case the evidence is insufficient. to show what offense, if any, was so committed or attempted.

In view of the conduct of the constable and his deputies in connection with the attempted arrest of another person on the premises of the defendant, it was the duty of the trial court to define, by proper instructions, the manner of making a lawful 'arrest, and the force that might be used in so making or in resisting an attempted rescue, if an arrest' was made. Admitting that the violence employed by the deceased did not justify the shooting by the defendant, we think that the question of the defendant’s guilt of the crime of murder should not have been submitted to the jury. The issue upon the evidence is manslaughter or justifiable or excusable homicide. However, we do not sáy that the facts in evidence show that the defendant was justified in self-defense or in defense of his habitation in shooting the deceased; that was a question for the jury to determine under proper instructions; and these are the principles of law which, on the defendant’s theory of the case, should have. been given in the charge to the jury.

From our examination of the record, it clearly appears that the case was tried and submitted to the jury upon an erroneous theory of the law prejudicial to the substantial rights of the defendant, and we are unable to say that the defendant has bad that fair and impartial trial which the law guarantees to him.

For the reasons herein stated, the judgment of the district court of Washington county is reversed, and the case remanded to that court for further proceedings not inconsistent with the views expressed in this opinion. The warden of the penitentiary will surrender the defendant to the sheriff of Washington county, who will hold him in custody until he shall be discharged or as otherwise ordered according to law.

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


text:
    SHERMAN WORTMAN v. STATE.
    No. A-1550.
    Opinion Filed May 24, 1913.
    (132 Pac. 358.)
    1. APPEAL — Sufficiency of Evidence. Where in a criminal case the evidence "is insufficient to sustain the conviction, in that the evidence is insufficient to show the commission of the offense charged, the judgment of conviction will be reversed on appeal.
    2. INTOXICATING LIQUORS — Illegal Sales — ’Use of Imitation — Information. Where the defendant is charged with the unlawful possession of an imitation and substitute of a fermented and malt liquor, capable of being used as a beverage, the information is insufficient to charge, a violation of the statute, unless it is further alleged that such imitation or' substitute contained as much as, one-half of 1 per cent, of alcohol.
    ('Syllabus by the Court.)

      Error from Superior Qourtj Logajn County • S. S. Lawrence, Judge. '
    Sherman Wortnian was convicted of violating the prohibitory law, and brings error.
    Reversed.

      McGuire & Smith for plaintiff in error.

      €has. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. (J. S. Estes of counsel), for tbe State.
   DOYLE, J.

Plaintiff in error was convicted in tbe superior court of Logan county on an information which charged:

“The said Sherman Wortman did then and there unlawfully, willfully and knowingly have’ the .possession of a quantity, to wit, eight pints, of an imitation and substitute of a fermented and malt liquor, the name of which is to affiant unknown, capable of being used as 'a beverage, contrary to,” etc.—

and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and to pay a fine of $50.

Of the various errors assigned it is only necessary .to notice two, which are ■ in effect: First, the information is insufficient in that it does not state facts sufficient to constitute an offense; second, that the evidence is insufficient to support the verdict and judgment.

Obviously the information is fatally defective. It is not sufficient to merely name the offense and charge a mere conclusion of law. The facts charged must show an "offense.

In Ex parte Hunnicut, 7 Okla. Cr. 213, 123 Pac. 179, it is said:

“Where an information or indictment merely charges a defendant with unlawfully handling any substitute for or imitation of .prohibited liquors, it would not charge an offense against the laws of the state of Oklahoma. Where an information or indictment charges the unlawful use of imitations of or substitutes for prohibited liquors, without going further and alleging facts which would bring them within the purpose of the law, such information or indictment simply charges that, in the opinion of the pleader, an offense has been committed. This would be contrary to the universal rule that legal accusations must allege facts, not opinions.”

Two >or three witnesses for the state testified that the stuff looked like beer. The defendant as a witness in his own behalf testified that the officers came to his place and took eight bottles of a liquid called “Tempo”; that it did not look like beer or taste or smell like beer, any more than soda pop; that it was not a substitute for beer, nor did he ever sell it for such. Samuel Garrest testified that it did not look like beer, * nor were there any hops or malt about it; that it “tastes a little like burnt sorghum molasses with water in it.” George Hannah, John Fallin, Fred- Winters, Lyman Ross, A. T. McMillan, and Charles Seton testified in effect that the liquid was not beer, nor an imitation of beer, and could deceive no one. There ivas no testimony in the case that this liquid contained any alcohol or was in any way intoxicating.

We are clearly of the opinion that the verdict is unwarranted by the evidence, and that the judgment of conviction, as a matter of law, is without support in the evidence.

The judgment of the superior court of Logan county is therefore reversed.

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


text:
    W. R. WHITE v. STATE.
    No. A-1531.
    Opinion Filed May 24, 1913.
    (132 Pac. 381.)
    1, LARCENY — Evidence—Sufficiency. In a prosecution for larceny of livestock, the evidence is held sufficient to sustain the verdict and judgment, and that no error was committed on trial.
    2, CONTINUANCE — Review of Denial. An application for continuance is addressed to the discretion of the trial court; and its action thereon will not be reviewed, unless there appears to have been a clear abuse of discretion.
    ('Syllabus by the Court.)

      Appeal from District Court, Johnston County; Robert M. Rainey, Judge.

      W. B. White was convicted of larceny, and appeals.
    Affirmed.

      Stephen 0. Treadwell, for plaintiff in error.

      Ghas. West, Atty. Gen., Smith 0. Matson, Asst. Atty. Gen., and Jos. L. Hull, Spec. Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was prosecuted upon an information which jointly charged W. E. White and John Morgan with the larceny of one heifer, the property of one C. A. Snyder. It appears that said Morgan forfeited his bond and was not apprehended. This defendant was tried and convicted, and his punishment was fixed by the jury at imprisonment in the penitentiary for one year. On the 9th day of June, 1911, the court sentenced the defendant in accordance with the verdict of the jury. An appeal was taken by filing in this -court December 8. 1911, petition in error with case-made.

The assignments of error relied upon for a reversal of the judgment are, in effect: First, that the trial court erred in overruling an application for continuance; second, .that the evidence is insufficient to sustain the conviction; third, that the instructions given were misleading and improper, and that the court erred in refusing to give instructions requested by the defendant.

The information was filed June 6, 1910. When the case was called for trial one year later, June 6, 1911, the defendant filed a motion for continuance on the ground of the absence of one Jess Pierce, who lived in Garvin county. The affidavit recites that at the time of the alleged theft the -defendant was residing near Ego; and that said absent witness, if -present, would testify that he went in company with one Houston Brandle to the defendant’s house, and they found John' Morgan there; that the defendant was not at home;' that he saw the yearling that was killed -and ’knows that the same was the property of the defendant, and he was present When John Morgan killed said yearling; that he- saw the hide that was exhibited at the examining trial, and that it was the hide of the yearling belonging to the defendant that Morgan killed; that the defendant has used due diligence to procure the' attendance of said witness; that on May 23, 1911, he caused a subpoena to be issued for the witness, and mailed on May 29th a correct copy of said subpoena to the said Jess Pierce, postage prepaid, addressed to Wynnewood; that on June 6th he talked to said Jess Pierce over the telephone, and said witness said he had received said subpoena and would' be in Tisho-mingo on the morning of June 7th to testify in said case. The case was passed until June 8th, at which time the defendant renewed his application for continuance by filing another affidavit; which further alleged that when said witness did not arrive on June 7th, he procured another subpoena for said witness and an order from the court commanding said witness to attend in response to said subpoena, and placed said subpoena in the hands of the sheriff of Johnston county.

We think the application does not show diligence. A defendant should not wait until his case is called for trial before .he asks for an order of court to command the attendance of a witness resident in another county of the state. The rule is well settled that an application for continuance in a criminal .case is addressed to the discretion of the trial court; and its action thereon will not be reviewed, unless there appears to have been a clear abuse of discretion. The court certainly did not abuse its discretion in refusing a further continuance in this case.

The conviction rests largely upon circumstantial evidence, but' in our view the testimony of the state as to the guilt of the defendant is clear and convincing. C. - A. Snyder testified that he missed a yearling heifer from his pasture; that code-fendant, John Morgan, sold him some beef that day; that he tried to buy the hide from Morgan, who was working for .the defendant White. The next day he charged White, in the presence 'of Morgan, with taking and killing his heifer. White denied it, saying that he told John Morgan to kill the calf of one of his cows, and that:

“I wasn't at home when .the calf was killed. Just as quick as I can go home I can tell in five minutes whether I got your calf or not. If this old' cow’s calf' is with her, I got your calf. If I did, I will make it good. Be back just as quick ás I can go to the house and back.”

But he never came back. The next morning Snyder found his heifer’s hide at the depot, wrapped up ready for shipment to Denison, Tex. Six or seven .witnesses' testified that the hide was that of Snyder’s heifer. The station agent testified that White admitted to him that he had the bill of lading for this hide, but had mislaid it, although one of the Morgans had brought the shipment thére at an early hour of the morning, .after White had been, charged with the theft. The defendant did not testify' in his own behalf. He introduced two witnesses only, and .the only fact which they testified, to was that they examined the hide and it was marked with a brand. The circumstances tended strongly to show that this defendant participated in the larceny, and that evidence, together with the admissions of the defendant tending to connect him with the commission of the offense which were not denied, is clearly sufficient to uphold the verdict and the judgment.

We have carefully gone over .the instructions given by the court. They fully and correctly cover the law of the case, and it is unnecessary to incumber this opinion with further-comment upon them.

The instructions requested by the defendant were properly refused. They were not the law, and were not based upon any testimony justifying the court giving them.

The case appears to have been carefully and ably tried on the part of the court as well as counsel.' Our conclusion is that the defendant had a fair, impartial, and legal trial.

The judgment of the district court of Johnston county' is therefore affirmed.

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


text:
    BUD TEMPY v. STATE.
    No. A-1556.
    Opinion Filed May 24, 1913.
    (132 Pac. 383.)
    1. APPEAL — Sufficiency of Evidence. Where the verdict of the jury has, been approved by the trial court, and there is evidence in the record to support the verdict, this court will not review the evidence to determine itsi weight or sufficiency.
    2. EVIDENCE — Admission of Evidence — Other Offenses. Evidence is admissible, that tends directly to prove the defendant guilty of the offense charged, although it may also tend to prove another offense, where the two offenses are so linked together in point of time or circumstances that one cannot be fully shown without proving the other.
    ('Syllabus by the Court.)

      Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.

    Bud Tempy was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      McGuire & Smith, for plaintiff in error.

      Chas. West, Atty. G-en., and Smith C. Matson, .and 1$. G. Spilman, Asst. Attys. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Bud Tempy, was convicted of unlawfully selling whisky, and was on September 18, 1911, sentenced, to be confined in the county jail for 30 days and to pay a fine of $50.

The assignments of error relied upon for a reversal of the judgment are based upon the rulings of the court on the admission of alleged incompetent and prejudicial testimony, and that the evidence is insufficient to. support the verdict.

The information charges the sale of a half pint of whisky to Charles Biggs, at Meridian, on July 4, 1911, by the defendant. Biggs testified that he saw the defendant at that time ■at Meridian and there -bought from him the liquor, paying him 50 cents f-or it. Over the objection, of the defendant, he was permitted to testify that the defendant. gave whisky to other persons present at the time. Melvin Killough testified that he was present at Meridian at the time, and over the objection of the defendant he was allowed to testify that the defendant furnished whisky to those present. The defendant was a witness in his own behalf and denied that he sold Biggs any whisky, -and testified that the relations between himself and Biggs have been unfriendly for some years past, because he at one time 'had Biggs arrested.

It is contended that under Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204, the court erred in admitting evidence of other sales. In the Smith case it is said:

“Where the state charges and relies upon a particular sale, the general rule is that proof of other sales,_ for the purpose of establishing' the particular sale charged, is not admissible. The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses.”

We think the rule in the Smith «case has no application here. Evidence covering the commission of other offenses is always admissible when two crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. The transaction with Biggs and the promiscuous drinking taking place are really one ,and the same transaction, or at least so connected in the minds of the witnesses as to make it almost, if not • quite, impossible for a statement of the one to be made without the other. Under, these circumstances, the court properly held that evidence of sales other than the one charged in the indictment was admissible in evidence as a part of the res gestae. But when the court charged the jury it instructed them that previous sales, other than the one charged in the. information, should not be considered by them in arriving .at their verdict as to the guilt or innocence of the defendant. Under the evidence, the furnishing of whisky, other than that specifically charged to have been sold, can hardly be considered as involving the question of previous sales, for m point of time this was merely a coincident circumstance. The admission of evidence coincident and contemporaneous with the sale to Biggs, of persons drinking whisky furnished by the defendant, was properly a part of the case. Biggs alone testified to having made a purchase, and no other purchase is shown, unless a purchase can be assumed to have been made because other persons present were drinking. The Smith case involves specific, definite sales, and the rule therein declared has no-application to the facts in this case.

As to the sufficiency of the evidence to support the verdict,, there is evidence that the sale was made as charged in the information. Where the evidence is conflicting and there is-evidence in the record to support the verdict, and the verdict has been approved by the trial court, this court will not review the evidence to determine its weight and sufficiency.

Finding no error in the record, the judgment of the; superior court of Logan county is affirmed.

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


author: FURMAN, J.

text:
    W. E. DE BYRUM v. STATE.
    No. A-1559.
    Opinion Filed May 24, 1913.
    (132 Pac. 382.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of' Evidence. Por evidence held not to be sufficient to sustain a conviction for possession of intoxicating liquors with intent to sell. the same, see opinion.
    ('Syllabus by the Court.)

      Appeal from Tulsa County Court; N. c1. Cub ser, Judge.

      W. E. De Byram was convicted of violating the prohibitory law, and he appeals.
    Reversed and remanded.

      Davidson & Williams, for appellant.

      Smith G. Matson and Jos. L. Hull, Asst. Attys. Gen., for the State.
   FURMAN, J.

In this case there is no conflict in the testimony. It was proven that one Walter Miller owned and operated a dance hall, known as the “Taneha Club,” in Tulsa county, during the month of May, 1911, and that appellant .was employed for the purpose of playing the piano in said dance hall; that on the night of the alleged offense the place was raided, and that appellant was found behind a bar; that behind this bar there was a cooler of ice water, and also a quantity of intoxicating liquors. It was also proven that appellant had gone behind the bar for the purpose of getting a drink of water, and that there was no other water in the room, except that behind the bar. There was no evidence that appellant had ever been in any manner connected with this intoxicating liquor. It was also proven that the proprietor of the place was in the building at the time of the raid.

The mere fact that appellant may have acted as musician in this clubhouse, would not make him guilty of having intoxicating liquors in his possession with intent to sell the same simply because liquor was found behind the bar, where appellant had gone to get a drink of water, when it was proven, and not denied, that his sole purpose for going behind the bar was to get a drink of water, and where there was absolutely no testimony that he had ever been in any manner connected with the sale, or attempted sale, of such liquor.

The judgment of the lower court is therefore reversed, and the cause remanded for a new trial.

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


text:
    BALLARD BRIDGES v. STATE.
    No. A-1791.
    Opinion Filed May 31, 1913.
    (132 Pac. 503.)
    1. CONTEMPT — Criminal Contempt — Appeal—Jurisdiction. Where the plaintiff in error was prosecuted in the name of the state, on an information signed and presented by its prosecuting officer for an alleged criminal contempt, and upon his trial found guilty, and .the judgment of conviction and sentence imposed was not for the purpose of enforcing an order of the court allowing alimony to the end that the plaintiff in error should be compelled to comply with such order, but as punishment for criminal contempt, the proceeding was not remedial, but was criminal in character. Therefore the proceeding is reviewable on appeal to this court.
    CONTEMPT — Imprisonment. A person imprisoned as punishment for a criminal contempt is imprisoned in execution .under a sentence for crime. ro
    SAME — Information—Demurrer. When the facts alleged in the information do not constitute an offense, and are insufficient to charge a criminal contempt, it was error for the court to overrule a general demurrer thereto. w *
    4. DIVORCE — “Criminal ’Contempt” — Refusal to Pay Alimony. Willful disobedience to an order of the district court, or judge thereof, to pay alimony in a divorce action is not a criminal contempt.
    5. SAME — Prosecution. In a contest between private litigants the state has no interest, and in this case the county attorney was without authority to file an information, and the district court had no jurisdiction to render a judgment of conviction and sentence,
    (Syllabus by the Court.)

      Appeal from District Court, Alfalfa County; James W. Steen, Judge.

    Ballard Bridges was convicted of criminal contempt, and appeals.
    Reversed.

      Ceo. E. McMahon, for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted-in the district court of Alfalfa county under an information which, omitting title and indorsements, -reads as follows:

“I, the undersigned county attorney of Alfalfa county, Oklahoma, in the name, by the authority, and on behalf of the state of Oklahoma, give information that on the 5th day of March, A. D. 1910, in said county of Alfalfa and state of Oklahoma, one Ballard Bridges was, at the March term of the district court of said county and state, ordered by the court by journal entry, made and entered of record in civil case No. 228 in said court, wherein Effie Bridges' was plaintiff and Ballard Bridges was defendant, then and there on March 5, 1910; that the said Ballard Bridges, defendant, pay to the plaintiff -the gross sum of $1,000 and the further sum of $20 per month as alimony for the maintenance and support of the plaintiff, Effie Bridges, and their infant child, Zelma Bridges, and $25 into court as attorney’s fees for the plaintiff and the cost of said action; that nevertheless the said Ballard Bridges unlawfully and contemptuously did neglect and refuses to pay any part thereof or the interest thereon as by said journal entry he was required to do; and. that the said Ballard Bridges has not, at any time since said judgment, complied with the said journal entry, although often required so to do, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

Dpon arraignment a demurrer was interposed, .on the ground “that the information does not state facts sufficient to constitute a public offense.” Dpon considering -the demurrer it was overruled by the court and exception allowed. The ease -was called for trial, and after hearing the evidence, the court rendered judgment, which is in part as follows:

“The court, being fully advised in the premises, finds said defendant guilty of contempt of this court, as charged, in failing and refusing to obey the order, judgment, and decree of this court heretofore made and entered. And the court having overruled 'defendant’s motion for a new trial herein, which is excepted to by the defendant, and now the defendant is informed of the nature of the. charge against him and of the judgment of the court herein. And now the defendant is asked by the court if he has any legal cause to show why judgment and sen-tenee should not be pronounced against him, and, said defendant giving no good reason in bar thereof, the court finds the defendant, Ballard Bridges, guilty as charged herein, and that he be punished therefor by imprisonment in the county jail of Alfalfa county, Olda., for a period of 10 days, and by a fine of $40.”

To reverse the judgment the defendant appealed. The Attorney General has filed a motion to dismiss the appeal, on the ground that the proceeding was civil, and this court has no jurisdiction.

We think the motion to dismiss is not well taken. This was a proceeding prosecuted in the name of the state of Oklahoma, on an information signed and presented by its prosecuting officer, and while upon an examination of the record it is plain that the proceedings were had upon an erroneous theory and mistaken view 'of the law, as the facts only tend to show a civil contempt, yet the judgment of conviction and sentence imposed was not for the purpose of enforcing an order of the court allowing alimony, to the end that plaintiff in error should be compelled to comply with such o^der, but as punishment for a supposed offense, or for a criminal contempt, and a person imprisoned as punishment for a criminal contempt is imprisoned in execution under a sentence for a crime. For this reason the proceeding was not remedial, but was criminal in character; therefore the proceeding is.reviewable on appeal to this court.

In Burnett v. State, 8 Okla. Cr. 639, 129 Pac. 1110, it is said:

“ 'Criminal contempts’ are all those acts or conduct in disrespect of the court or its process, or which obstruct the due administration of justice, or tend to bring the court into disrepute,” and “' civil contempts’ are those quasi contempts which consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceedings.”

In Flathers v. State, 7 Okla. Cr. 668, 125 Pac. 902, it is held that "disobedience to an order of the district court, or judge thereof, to pay alimony in a divorce action is not a criminal contempt,” and that “a proceeding against a party for contempt for an alleged violation of an order of the court in a civil action is a civil proceeding.”

The facts alleged in the information do not constitute an offense, nor does the information charge a criminal contempt. For this reason the demurrer thereto should have been sustained, and the court erred in overruling the same.

In a contest between private litigants the state has no interest and the county attorney was without authority to file an information in this case, and the district court had no jurisdiction to render the judgment of conviction and. sentence.

The judgment of the district court of Alfalfa county is therefore reversed.

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


author: ARMSTRONG, P. J.

text:
    CARL HOWEY v. STATE.
    No. A-1393.
    Opinion Filed May 31, 1913.
    (132 Pac. 499.)
    1. APPEAL — Time for Perfecting Appeal, (a) Under the provision of section 6948, Comp. Laws 1909, Rev. Laws, 5991, an appeal from a judgment of conviction in a felony case must be taken within six months from the date judgment is rendered.
    (b) The appellate court is without jurisdiction to consider and determine questions raised at the trial when the appeal is not perfected within the time provided by the statute, which is six months from the date of judgment, and not six months from the date of passing on motions or making other orders.
    (c) There is no provision of law which vests discretion in the appellate court to hear and determine appeals when they are not taken within the time provided by the statute.,
    2. SAME — Denial of New Trial. In certain cases and under certain conditions, and when taken in the proper manner, appeals will lie to this court from the action of a trial court in denying a motion for a new trial on the ground of newly discovered evidence when such motion is filed within the time and in the man- ■ ner provided by the statute.

      3. NEW TRIAL — Grounds. A new trial should not be granted on the ground of newly discovered evidence unless there is a reasonable probability that a jury would arrive at a different conclusion when all. of the evidence introduced at the former trial is considered with the new evidence discovered.
    ('Syllabus by the Court.)

      Error from District Court, Grady Countyj Frank M. Bailey, Judge.

    Carl Howey was convicted of murder, and he brings error.
    Affirmed.

      Thomas J. O’Neill, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and H. A. King, Sp. Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Carl Howey, was convicted in the district court of Grady county at the October, 1910, term, on a charge of murder. On the 4th day of November judgment was rendered against him fixing his punishment at life imprisonment in the state penitentiary.

The petition in error and ease-made was filed in this court on the 16th day of September, 1911, and the Attorney General has filed a motion to dismiss the appeal upon the following grounds:

“First. Because the record shows that this is an attempted appeal from a judgment of conviction in a felony, to wit, murder, rendered in the district court of Grady county on the 4th day of November, 1910; that no notices of appeal were served on the county attorney and clerk of the district court until the 21st day of June, 1911, more than six months after the rendition of such judgment. Second. Because said case-made and petition in error was not filed in this court until the 16th day of September, 1911, more than six months after the rendition of said judgment.”

Answer was filed to this mjotion admitting the facts as alleged by the Attorney General, but pleading a motion or supplemental motion for a new trial, and that same was pending and not disposed of until the 24th day of March, 1911, in view of which fact they contend the appeal is within time. With this contention we cannot agree. It will be remembered that judgment against the accused was pronounced on the 4th day of November, 1910. Section 6948, Compiled Laws of 1909, provides relative to appeals in felony cases as follows: “In felony cases the appeal- must be taken within six months after the judgment is rendered. * * * ” This question has been before this court in numerous eases,' and before the territorial and state Supreme Courts, and it has been uniformly held.that the appellate court is without jurisdiction to consider an appeal on its merits unless the same is perfected within the time provided by statute, which is six months from date of judgment, and not six months from date of passing on supplemental proceedings. No court, either -appellate or inferior, has any power to change the statute. The Legislature in its wisdom did not see fit to vest discretion in the courts in the matter of extending the time for perfecting an appeal in a felony ease beyond a period of six months from the date of judgment. The law is plain and unmistakeable in its terms. It does not say that the appeal must -be .taken within six months from the date of the overruling of the motion for new trial or supplemental motion for a new trial, but specifically provides that the appeal must be taken within six months from the day judgment is rendered.

In Mustek v. State, 5 Okla. Cr. 608, 115 Pac. 377, discussing this section of the statute, this court said:

“Appeals in felony cases must -be perfected in this court within six months from the date judgment is rendered by the trial court, and unless this is done this court has no jurisdiction to review the case, and can only dismiss the appeal and direct the trial court to enforce the judgment and sentence.”

In Farmer v. State, 5 Okla. Cr.. 151, 114 Pac. 753, we said:

“No court has the power to grant an extension of time, beyond thait allowed by statute, within which an -appeal can be filed in this court.”

In Hughes v. State, 4 Okla. Cr. 333, 111 Pac. 964, we said:

“Notice of appeal given after the expiration of the time provided by statute for taking -such appeals is a nullity and will not confer jurisdiction upon the appellate court.”

In Cloyd v. State, 6 Okla. Cr. 530, 119 Pac. 1125, it was held that notices of appeal in felony cases must be served within six months from date of judgment.

The authorities are voluminous in support of the doctrine, and under statutes similar to ours we know of none to the contrary, and none have been cited by counsel. The question of entertaining this appeal on the merits is not a matter of discretion with this court. If it were, we would gladly review the whole record and discuss each material assignment on its merits. But we have no discretion or jurisdiction in the premises, and our duty is to dismiss the appeal in so far as the questions sought to be raised on the record of the trial are concerned.

We think that the jurisdiction of this court to review the questions raised by the supplemental motion is exceedingly doubtful, but in this case, without intending to establish a precedent, that doubt will be resolved in favor of the plaintiff in error without a discussion of the merits of the motion to dismiss as to this feature and the proceedings and supplemental motion reviewed.

It appears that at the hearing of the motion for a new trial, filed on January 4, 1911, based on newly discovered evidence, all of the testimony taken at the original trial was offered in support of the motion. We have therefore reviewed the entire testimony for the purpose of determining whether or not the trial court committed prejudicial error in overruling this motion. In this connection we desire to quote the statement of the trial court at the time the motion was overruled, and included in the record, which in full is as fellows:

“Since the submission of this motion for a new trial on day before yesterday, I have read the affidavits filed in this case and reread a considerable portion of the original record in order that I might be in position to weigh fully the force and effect of the testimony which the defendant proposes to offer, should a new trial be granted in this case. In the first place, suggestion has been made as to the practice of the court in requiring or requesting that parties heretofore making affidavits in the ease be brought before the court and their evidence taken in order to test the knowledge and credibility of such witnesses; and likewise the correctness of the practice to permit the state to file counter affidavits and to produce witnesses to contradict and impeach the testimony and affidavits offered by the defendant.
“While there are perhaps some states in which the use of counter affidavits are not allowable, it appears that the overwhelming weight of authority approves such course as the correct practice. As stated in Moore v. State, 96 Tenn. 209, 33 S. W. 1046, this practice was recognized and well established as early as. the case of McGavock v. Brown, 4 Humph. [Tenn.] 251, where it was said that in criminal cases it had been the constant practice to receive counter affidavits, and new trials are thereby refused upon the facts disclosed in such affidavits; and fif this practice has prevailed and is found to be useful in other states/ says the same court in the same case, fit was not only not in violation of but altogether sound practice to require, on this occasion, the presence of affiant in open court in order to test his knowledge and his credibility -by an oral examination with regard to the statements contained in his affidavit. Glidwell v. State, 15 Lea (Tenn.) 133; People v. Cesena, 90 Cal. 381, 27 Pac. 300; Meeks v. State, 57 Ga. 329; People v. Sing Yow, 145 Cal. 1, 78 Pac. 235; Nichols v. Commonwealth, 91 Va. 741, 21 S. E. 364. The great temptation to magnify incidents in aid and interest of those who stand convicted of crime with years of servitude before them presents strong reasons for the trial judge availing himself of the law’s best method for sifting the character, conscience, and knowledge .of such witnesses in order that a conclusion may be reached which will promote rather than defeat the ends of justice.’
. “The rules governing the granting of a new trial on the ground of newly discovered evidence have been reduced to the following requirements by practical uniformity of decision; First, that such evidence could not, with reasonable diligence, have been secured and offered at the time of the trial; second, that it is not cumulative; third, that if such evidence has been introduced it would have, with reasonable probability, compelled a different conclusion.
“The evidence in this case discloses that the defendant, Carl Howey, was arrested on or about the 25th day of June, 1910, charged with the murder of one Ed Morris; said murder being alleged to have occurred on or about the 7th day of June, 1910. The defendant Howey was immediately brought to the county jail in the city of Chiekasha, and was subsequently confined there until his trial and conviction, when he was conveyed to the state prison at McAlester, where he has since remained. The record further discloses that at the preliminary hearing had in said cause on the - day of July, 1910, defendant was represented by counsel of his own choice and selection. Subsequently, as is shown by the record in this case, it being called to the attention of this court on the 23rd day of September, 1910, that the defendant Howey had been unable to arrange with his former counsel to represent him upon final trial, and that he was unable to make further arrangements for counsel .for his defense, the court designated Messrs. O’Neill and Simpson to defend this defendant. Afterwards, on the 4th day of October, 1910, the case was called for trial, and, by reason of the motion presented by defendant’s counsel, was passed until the 5th, when the trial was begun, and the taking of testimony begun on the 6th day of October, 1910. The record further discloses the fact that application for continuance was made by reason of the absence of certain material witnesses for the defendant, and that before the completion of the trial each and every witness requested by the defendant was in attendance upon' the court and opportunity given to have such witnesses placed upon the stand. The verdict was returned on the 11th day óf October, 1910, finding the defendant guilty of murder, and fixing his punishment at imprisonment in the state prison for life. Subsequently a motion for new trial was filed, and at the suggestion of defendant’s counsel was passed until the last possible date, to wit, the 4th day of November, 1910, when certain allegations, as shown by the record in this case, were made touching the question of the identity of the person alleged to have been murdered; the affidavits of the witnesses named as furnishing the newly discovered evidence being wanting, however, on the motion presented at that time. The motion for a new trial was overruled and the defendant sentenced, and the October, 1910, term of the district court of Grady county, Okla., expired by limitation of law and adjom led.
“January 4, 1911, a motion for new trial upon the ground of newly discovered evidence annexing the affidavits of various witnesses was again presented to the court, and on motion was continued until the 21st day of March, 1911, in order that additional time might be permitted to- the state -and to the defendants to secure such witnesses as they desired to present on such motion. And it is upon the testimony taken upon this hearing, together with the evidence heretofore offered on the trial of this defendant, that the defendant prays a new trial upon the grounds of newly discovered evidence, contending that such evidence measured by the rules and standard hereinabove suggested, entitled this defendant to a new trial. There is no question as to the materiality of the evidence offered by this defendant on his motion for a new trial.
With regard to diligence: It has been suggested by counsel that by reason of their late employment -in the case they were unable to give full consideration and preparation of the case within the time following their appointment by the court and the date assigned for the trial of the case. But the record will disclose that the defense was presented at all times upon the theory that Ed Morris was not really dead, and that the body found was not that of Ed Morris, and we quote from counsel for the defendant’s opening statement in the case; We think the proof will further satisfy you that the body found was not the body of Ed Morris, and that Ed Morris is at this time still living and well.’ Again it is shown under the evidence in this ease that assistant counsel, who was in the case for the defendant prior to the .trial, took up the line of travel over which it was claimed Ed. Morris passed, and in fact in line with the path which the witnesses present on this hearing claim to have seen him pass, but no witness was present at the trial who could give positive identification as to having seen Ed Morris subsequent to the date on which it is alleged he was murdered. Though evidence was offered tending to prove that a party seen following the course of travel as that indicated by the defendant was followed by Ed Morris and himself up to the time the defendant and Ed Morris separated, and in the direction presumed to have been gone by Ed Morris after his separation from the defendant. The question then might arise as to whethep or not due diligence has been exercised in this case or as to whether or not the evidence offered is not cumulative. In this connection we observe that it is not a sufficient answer to.the lack of diligence to say that present counsel have used every effort and every moment in the search of evidence and failed to secure witnesses who have not been produced. The want of diligence is not chargeable to the attorneys who now represent this defendant, and, if chargeable at all, is chargeable to the defendant whose interest in this matter dates not from the 23d day of September, 1910, -as does that of the attorneys by reason of their appointment, but from as early as the 25th day of June, 1910, when defendant was arrested charged with this crime, and, as the record shows, was in a few days ably represented by counsel in an examining trial in the city of Chickasha. But we deem it unnecessary to rest our final conclusions in this case on either of the grounds above suggested and discussed.
“If evidence has been introduced in this ease which would with reasonable probability bring a different result or compel a different verdict in this ease, a discussion of diligence or cumu-lation of testimony should have but little weight and bearing. What, then, is the probative force of the testimony presented in this case for a new trial? Weighed in the light of the testimony introduced on the trial of this cause and in the light of all the facts and circumstances presented before this court, to begin with, the testimony upon the trial of this cause discloses, by the evidence of a great number of witnesses, that the defendant, Carl Howey, disposed of certain personal property in the city of El Reno in the month of June, 1910. His identification is complete. This same property, disposed of by Howey at that time, was identified beyond the peradventure of a doubt as the property of Ed Morris, property so unusual as a three-legged dog,, all of which property was subsequently secured and returned to the family of Ed Morris.
“The testimony of the defendant, Carl Howey, was thoroughly 'and unquestionably impeached as to his movements and travels after the time when he admits he was with Ed Morris a few miles west of Chickasha. At the time of the trial, when the wife of Ed Morris had not seen the body of the deceased man she gave descriptions of appearance and clothing which in all material facts agree and coincide with the description of clothing and of person as developed when the body of the dead man was exhumed during the hearing of this motion, as was disclosed by the evidence taken on yesterday. Coupled with the testimony of the wife of Ed Morris is the testimony of his brother and stepdaughter, who are willing to swear positively as to the identity of the remains, and' claim them as husband, father, and brother. These witnesses, coupled with the identification upon the trial of certain keepsakes and ‘ cur’ios found in the pockets of the deceased and identified as being Ed Morris’, taken together with all the facts and circumstances presented in the trial of this case, seem to present an array of facts compelling but one conclusion. Upon the other hand, several witnesses have been introduced upon the motion for a new trial testifying emphatically and positively as to their acquaintance and familiarity with Ed Morris, whom they identified as the man who married Nancy Biggs, and who had a brother named Walter, or Bert, Morris, and who lived in and about Woodward, Okla., and Englewood, Kan., and connecting the man with their acquaintance in many ways so as to leave little doubt that they at least had had an acquaintance with Ed Morris, who it is not charged the defendant murdered, and they told of various occasions when they saw the same person whom they knew as Ed Morris subsequent to the time it is alleged the deceased was murdered, and at a time when this defendant was incarcerated in the Grady county jail. On the other hand, when one witness testified most strongly as to having seen Ed Morris in the town of Woodward on the occasion of the old soldiers’ reunion at that place, the evidence discloses that at that identical time the brother of said Morris was a participant in said celebration, had been previously advised as to the coming of his brother to visit him, who had frequently been visited by his brother Ed Morris, saw nor heard nothing of him, nor have they seen or heard of him to this day, except as they heard of the event of his dead body being found, and the trial and conviction of the one charged with his murder. A witness has likewise been offered to show that parties identifying a person alleged to have been seen during the months of August and October as that of the man who is alleged to have been murdered, while having known Ed Morris for a number of years, had only had occasion and opportunity to see him during the last seven to ten years at intervals of a year or more.
“It is also admitted under the testimony in this case that, perhaps with a bare exception, none of the parties claiming to have seen Ed Morris at the time of their meeting had any information or knowledge of the claim that Ed Morris had been killed; nor was there anything unusual in any of said meetings to impress witnesses with the personality of the man they met. Though such witnesses are positive in their declarations and' are positive in their identification of the man they did meet, and whom they now testify to have been Ed Morris, and under these conditions the question is presented whether a jury would reach, with reasonable probability, a different conclusion or arrive at a different verdict with such newly discovered evidence presented before them in connection and in conjunction with all the evidence heretofore presented on the trial of this cause.
Tt is a well-known fact and the common experience of all that a person may be mistaken, and sometimes is, as to the identity of his well-known friends, - meeting them under circumstances when one would feel that a mistake could not well occur/ said Judge Tuck. And likewise an expression by a learned judge in the ease of Tisdale v. Insurance Co., 23 Fed. Cas. 1302, when it was observed that: ‘The jury must receive and consider evidence of personal identity, which is inconsistent with other evidence in the case, with scrupulous care and caution/ That observation recalls the testimony of the witness presented on the motion for rehearing in this case as to the fact that the brother of the said Ed Morris was frequently addressed by his friends and neighbors in Woodward as Ed, and it likewise recalls the testimony of another witness who testified that there lives in that section of the country in and about Woodward and southern Kansas another person named Ed Morris, and who operated a -‘cat wagon/ such an institution as certain witnesses have undertaken to connect Ed Morris with, whom they identify as having seen during the month of October, and whom they seek to identify as the party whom the defendant stands charged with murdering.
“Moore, in his work on Facts, recalls the observation of Colegroce on Memory, wherein it is asserted that, ‘A large portion of men’s minds never see facts accurately at all/ and it is further observed that, ‘How easily one, upon leaving a mirror, forgets how he looks/ and as noted by St. James where it is said, ‘He beholdeth himself and goeth his way and straightway forgetteth what manner of man he was/ And so in face of all the facts presented in this case, the testimony of parties to whose attention no act of murder had been called, no unusual conditions being present to impress upon them the personality of the man, meeting a person whom they had known for years but with only occasional meetings, without any personal interest, and no ties to cause them to give particular heed or attention, can the testimony of these men raise a reasonable probability of a change of verdict in this case, in the face of the testimony impeaching every act and movement of the defendant, and in the face of the testimony of three members of the family, who identify positively the remains of the deceased as that of their loved one, and in the face of a want of trace of Ed Morris for more than nine months,' when no motive is presented for his voluntary absence ? But, on the other hand, the evidence of cordial and affectionate relations with his brother, living in the immediate vicinity of the place witnesses claim to have seen him.
“It occurs to me, granting, as I do, the utmost sincerity of the witnesses who have testified in behalf of this defendant, that their identity of the person seen by them as being that of Ed Morris, who formerly lived at Anadarfco and who was the husband of Nancy Morris, is absolutely inconsistent with the physical facts, and undisputable record of facts in this' case, and in spite of the testimony offered in this ease as newly discovered evidence, there is no reasonable probability that a jury would or could reach a different conclusion than that reached on the former trial of this case.
“Feeling, as I do, the weight of responsibility that has been presented by reason of the.motion in this case, granting and realizing the utmost sincerity of counsel in this case in the justness of their contention, and commending them for the untiring zeal which they have exercised, to the end of justice I feel that this motion should be overruled, and it is so ordered.”

We fully agree with the findings and rulings of the trial court, and, after reading all the testimony, we are unable to reach a conclusion that an honest, intelligent jury on a new trial could do otherwise than find this plaintiff in error guilty. The evidence of guilt in this record to our minds is conclusive.

The judgment of the trial court denying the motion for a new trial on the ground of newly discovered evidence is affirmed, and the cause remanded to the district court of Grady county, with direction to enforce the judgment and sentence •originally imposed.

DOYLE and FTTBMAN, JJ., concur.


author: DOYLE, . J.

text:
    JESSE FLETCHER v. STATE.
    No. A-1772.
    Opinion Filed May 31, 1913.
    (132 Pac. 498.)
    APPEAL — Death of Accused — Abatement. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.,
    ('Syllabus by the Court.)

      Appeal from, District Court, Comanche County; ' J. T. Johnson, Judge.

    Jesse Fletcher was convicted of murder, and appeals.
    Order that proceedings abate.

      S. M. Cunningham, and Stevens & Myers, and Wendell Johnson, for plaintiff in error.

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

The plaintiff in error, Jesse Fletcher, was charged by information with having murdered one Jesse Berk-low by shooting him on the 10th day of July, 1911. Hpon his trial he was found guilty by the verdict of the jury of the crime of murder, with the death penalty. December 30, 1911, in accordance with the verdict of the jury, he was sentenced to be hanged. To reverse the judgment, an appeal was perfected by fiilng in this court June 17, 1912, a petition in error, with case-made. Pending the determination -of his appeal, he was confined in the penitentiary at McAlester.

The Attorney General has filed a statement of the warden of the penitentiary and certificate of death, showing that since the appeal was taken, and before the final submission of the cause, plaintiff in error departed this life. I-Iis death having-been suggested, the proceedings abate, and no decision upon the merits of the appeal will be rendered. In Boyd v. State, 3 Okla. Cr. 684, 108 Pac. 431, it is said: In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered that the proceedings in this cause do abate; 'and it is so ordered.

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