text:
    R. C. MOREHEAD v. STATE.
    No. A-2501.
    Opinion Filed October 14, 1915.
    (151 Pac. 1183.)
    1. CONTINUANCE — Appeal—Discretionary Ruling. An application for a continuance is addressed to the sound discretion of the trial court, and a ruling of the trial court denying a continuance will not be disturbed by the appellate court, unless an abuse of this discretion is clearly shown, but where such an abuse is manifest, especially in a capital case, it is the duty of the appellate court to interfere, in the furtherance of justice.
    2. JURY — Disqualification of Juror — Fixed Opinion. A juror who on his voir dire testified that he had heard detailed what purported to be all the facts by a person who claimed to know all about the ease of his own knowledge, and that he had a fixed opinion as to the guilt or innocence of the defendant that it would take strong evidence to remove, is clearly incompetent to sit as a juror and on a challenge for cause should be rejected, even though on further examination he stated that he could and would, notwithstanding such opinion, act impartially and fairly, and render an impartial verdict upon the law and the evidence, and where the defendant exhausts his peremptory challenges, and such juror is retained on the panel, the overruling of the challenge is ground for reversal.
    3. HOMICIDE — Dying Declarations — Admissibility. Dying declarations, to be admissible, must be made under -a sense of impending death; but it is not necessary that the declarant state that he is expecting immediate death. It is enough if, from all the circumstances, it satisfactorily appears that such was the condition of his mind at the time of the declarations.
    4. HOMICIDE — Dying Declarations — Admissibility. On a trial for murder the dying declarations of the deceased are not limited as evidence in favor of the state alone, but are equally admissible in favor of the defendant.
    5. HOMICIDE — Dying Declarations — Evidence. It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying- declarations, and for the purpose of proving the declarant’s sense of impending death, expressions or statements of the deceased are always admissible, if made at or about the time the dying declarations were made; and in this case it was the duty of the court to hear the evidence offered by the defendant, before determining that the dying-declarations were incompetent and inadmissible.

      6. EVIDENCE — Declarations of Deceased — Kes Gestae. On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal aet, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal faet might not be properly understood, are admissible as part of the res gestae.
    HOMICIDE — Argument of Counsel — Prejudicial Error. On the trial of a negro charged with the murder of a white man, before a jury of white men, the county attorney in his opening argument referred to the defendant as ‘‘ This black murderer.'; On objection being made the court admonished counsel to be temperate in his remarks. The county attorney in his closing argument referred to the defendant as “This coal black murderer.” Again, objection being made, the court peremptorily overruled the same. The language objected to, held to be grossly improper, and prejudicial to the defendant; and the refusal of the court to interfere and to properly instruct the jury to disregard the same, prejudicial error.
    (Syllabus by the Court.)

      Appeal from District Court, Kiowa County; . Thomas A. Bdwards, Judge..

    R. C. Morefiead was convicted of murder and appeals.
    Reversed.

      L. M. Keyes, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, R. C. Morehead, herein referred to as the defendant, was informed against for the murder I of one Clifford Garrison. The trial jury found him guilty of said charge and fixed his punishment at death. His motion for a new trial having, been overruled and sentence of death having been pronounced upon him, the judgment has been brought to this court for review.

The evidence shows or tends to show the following facts: Previous to February 1, 1915, the defendant had been employed in the press room of the oil mill at Snyder. Clifford Garrison, the deceased was the bookkeeper at the oil mill. On Sunday, February 7th, about one o’clock ,p. m., the defendant shot Clifford Garrison. From the effects of the wound he died the following Sunday. The shooting occurred in front of the shack occupied by,the negro employees of the oil mill.

It appears that the defendant had been discharged for writing some vulgar words on the wall, which he refused to rub out, and that the defendant had some disagreement with the deceased about his pay, and that he said to one of the employees: “I have just been to the office and settled with the boys at the office and got my check and I am going to shoot! them office boys off at the pockets.”

On the day of the shooting it appears that there was a row among the negroes at the oil company’s shack, and Clifford Garrison with his brother-in-law., Paul Hadley went from the oil mill to the shack to see what the trouble was. On reaching the place Garrison told the defendant that he had been discharged and had better go back up town before he started some trouble. The defendant said, “I do what I please and say what I please and go when I please,” and started towards him, and Garrison said, “Don’t come towards me,” and picked up an iron bed rail and the defendant grabbed the rail and took it from Garrison, saying: “Go back to the office and take care of your own damn business,” and then pulled a pistol and shot Garrison. There was a conflict in the evidence which it is not necessary to speak of in detail. It is enough to say that the defendant testified that the deceased began the quarrel and struck him over the head with the iron rail and he shot him in his necessary self-defense.

The errors assigned will be noticed in the order presented:

Thé first contention is that the trial court abused its discretion in denying the application for a continuance. The shooting took place the 7th day of February, 1915. On the 20th day of February following, the information was filed in the District Court. On the -third day of May, the defendant was duly arraigned and entered a plea of “not guilty” and the case was set for the 8th day of May. On that day the case was called for trial and the state announced “ready,” and the defendant presented his motion and affidavit for a continuance. The affidavit -is in part as follows :

“That since the said seventh day of February, 1915, affiant has been confined in the county jail at Hobart, Oklahoma, and a part of the time at the reformatory at Granite, in said state.
“That affiant is a negro and the said Clifford Garrison was a white man and very popular in the community where the difficulty occurred, wherein the said Clifford Garrison was shot and wounded, whilst affiant is a laboring man, wholly without financial means and practically unknown in said community, save to a few " negroes who were laborers there like himself.
“That affiant cannot safely proceed to the trial of the above cause at this time because of the absence of witnesses, whose testimony is material to his defense in said cause, and who are absent at this time without his procurement and against his wishes.
“That the following named persons were eye witnesses of and were present at the time and place of the occurrences and difficulty between affiant and the said Clifford Garrison and the shooting which resulted in the death of said Clifford Garrison, to-wit: P. W. Perkins, Oscar Wilson and Lizzie Wilson, all of whom are negroes.
“That the witnesses above named, P. W. Perkins, Oscar Wilson and Lizzie Wilson would testify if present and sworn in court in above case, that they were each present at the time and place of the shooting of the said Clifford Garrison. That said witnesses, Oscar Wilson and Lizzie Wilson were having trouble between themselves. That defendant endeavored to pacify them by asking said Wilson not to strike Mrs. Wilson, whereupon, the said Wilsons went outside the house and .were in the yard and the defendant also went into the yard with them, That thereupon the said Clifford Garrison appeared and asked defendant if he and Wilson were having trouble. That defendant, answered said Garrison that they were not. That thereupon the said Clifford Garrison said to defendant, “You are a God damned liar,” and reached down and picked up a piece of an iron bed rail from four to five feet in length and of weight and strength sufficient to have easily crushed defendant’s skull with a slight blow therefrom, and struck with it at the head of defendant. That defendant partly dodged the blow, but received a considerable blow therefrom upon his head. That at the same time that said Garri-sqn struck at defendant but as the iron struck defendant’s head, the shot was fired which wounded the said Garrison and that had same not been fired, the blow by Garrison would have killed defendant. That defendant did not have the fire-arm- in his hand and did not draw same until after said Garrison was striking at defendant with said iron bar. That defendant had but a few minutes before taken said pistol from the house of Mr. and Mrs. Wilson with the stated purpose of preventing the said Wilsons from using same in the trouble between them.
“That after said shooting of said Garrison, the friends of said Garrison and white persons residing at the town of Snyder scared said witnesses and caused them to at once leave said town by threatening them that if if they did not leave they would kill them. That in fear of the carrying out of said threats, said witnesses with the exception of said Perkins left said town going to various places distant therefrom. That defendant was arrested within a few minutes thereafter and has ever since been in custody of the officers and in confinement as aforesaid.
“That said witness Perkins was also arrested and kept in confinement in the jail at Hobart, Oklahoma, for several days and was finally discharged and released, but was also intimidated by threats of violence made by white persons unknown to affiant, in case he returned and testified in behalf of defendant at the trial of said cause. That said Perkins after his release went to the town of Clinton in Custer county and was there engaged in laboring at an oil mill until within the last few days. That upon the 27th day of April, 3915, and .before affiant or his attorney knew that said witness Perkins had left the town of Clinton, affiant by his attorney filed in the court clerk’s office a praecipe for a subpoena for said witness Perkins to be issued to the sheriff of Custer county, Oklahoma, and also procured the same to be endorsed by the honorable judge of this district, requiring said witness to attend this court on May 8, 1915, at 9 o’clock a. m., thereof. That said subpoena was duly issued and delivered to said sheriff and said sheriff made diligent search for said witness Perkins but was unable to find him for the reason that said witness had left said town of Clinton prior to that time as affiant now believes. That said subpoena has been duly returned into this court showing that said sheriff was unable to find said witness after diligent search in said county, said subpoena is referred to and made an exhibit No. 1 of this affidavit. Said praecipe is made a part hereof as exhibit 2 hereof. That upon the return of said subpoena into this court affiant by his said attorney, wrote to said witness at Clinton, asking him to come to this court on May 8, 1915.
That during the months of March and April, 1915, affiant’s attorney had letters from said witness Perkins at Clinton, Oklahoma, and said witness had promised affiant’s attorney that he would come to affiant’s trial and testify for him to above facts. That he would keep affiant’s attorney posted as to his whereabouts until said trial and if he left said town of Clinton that he would advise said attorney of his address.
That one of said letters is attached hereto, marked exhibit 3 and made a part hereof. That others of said letters have been mislaid and lost. That said witness is not present at the trial hereof and is absent without the procurement of affiant and against his will. That said absent witness has a relative named Allen Yarborough whose post office is Boswell, Oklahoma. That affiant’s said attorney has written to said Yarborough to learn the address of said Perkins but so far has received no reply, though inclosing return postage, but will doubtless receive a reply within a short time.
That affiant is informed by negroes at Hobart that said witnesses Oscar Wilson and Lizzie Wilson, after being frightened away from the town of Snyder where said shooting occurred, went to Vernon, Texas. That affiant by his counsel duly caused subpoenas to be issued for said witnesses to the sheriff of Kiowa county, state of Oklahoma, and same have been returned unserved after diligent search by said officers for said witnesses in said county. That affiant’s said attorney also caused the clerk of this court to send subpoena by registered mail to said witnesses at Vernon, Texas, in the state of Texas, but affiant is informed and believes that same has been returned uncalled for. That said attorney also caused said clerk to send subpoenas to all of said witnesses by registered mail as well as issuing same to said sheriffs of said different counties of Oklahoma with the command of said judge endorsed thereon for the attendance of said witnesses.
“That said witnesses, Oscar Wilson and Lizzie Wilson would if present, testify to matters set forth above and the same are true as affiant believes and affiant cannot prove said facts so well by any other witnesses. That said witnesses, Wilsons, are absent without his procurement and against his wishes. That the witnesses above named and whom have been subpoenaed for defendant, did not see all of the matters and things seen and heard by said absent witnesses. That affiant refers to said praecipes and subpoenas and the returns thereon for said witnesses Wilson and makes them a part of this showing and affidavit. That affiant cannot safely proceed with the trial without said witnesses. That affiant believes that his witnesses who have been subpoenaed will know the whereabouts of his said absent witnesses and that he will ascei'tain the same at the earliest possible moment and procure their attendance or depositions in time for his trial, if this cause be continued a sufficient time to do so.
“That the feelings of the white people residing at Snyder, Oklahoma, where said shooting occurred are very hostile toward affiant and his said witnesses who are all negroes. That shortly after the death of said Garrison, a mob was formed as affiant is informed and believes, to lynch him, and that the sheriff of Kiowa county was compelled to place affiant in the state reformatory at Granite, for a considerable time to prevent his being lynched by the said citizens of Snyder. That by reason of said feelings toward affiant and his witnesses, his said witnesses are afraid for their lives should they appear and testify in his behalf and affiant believes that that is the reason that they have evaded the service of process for their attendance at affiant’s trial. That this application is not made for delay merely but that justice may be done. That affiant has used due diligence to procure the attendance'of said absent witnesses and their testimony is material to his defense and necessary thereto.
“Affiant further. says, that the facts above set forth are the facts of the case and are each and all true.
“That each of said witnesses have resided in Kiowa county, state of Oklahoma, for some time preceding said shooting. That if they have since changed their residence from said county, affiant only knows the facts above set forth in regard thereto.
“That all attached exhibits are made a part hereof and are true copies where they appear to be copies of letters written and mailed.”

A corroborating affidavit of his counsel, T. M. Keys, is as follows: *

“That all allegations therein contained which refer to things done and information had by the attorney of defendant are true, and the same are within the knowledge of affiant.”

In support of his application for continuance, Will Fullin-game, was called as a witness and testified that he had lived eight years in Snyder; that following the shooting a crowd gathered and threats were made against the negroes by several persons, including witness, and the negroes all left Snyder and he had not seen any of them back there since that time. Also, C. H. Fawks, who testified that he was in the banking business at Snyder, and that the negroes in Snyder all left within a few days after the shooting, that the negro janitor of his bank left there the next day. That if the negroes were driven away he did not know it.

Jimmie Campbell, colored, testified that he was living at Snyder at the time of the shooting and knew Oscar Wilson and Lizzie Wilson, his wife;, that he did not know why they left Snyder, that after the shooting he left Snyder with three other colored boys.

We are inclined to the opinion that under the peculiar circumstances surrounding this case the trial court abused its discretion in refusing to grant a continuance. The application conformed to the requirements of the statute and the diligence to procure the attendance of the absent witness, P. W. Perkins, was unquestionably sufficient, and was uncontroverted in the court below.

The only witness who testified to the facts alleged in the application was the defendant himself, and the testimony of the absent witnesses was material to his defense, and it reasonably appears that the attendance of the witness Perkins at least could be secured by a continuance. The defendant was entitled to a fair chance to defend his life.

Speedy trials and the prompt enforcement of the criminal laws, however desirable, should only obtain with a due regard for the rights of the accused to enable him to have a fair trial. We think that in this case it was manifest error to refuse a continuance.

The next contention is that the court erred in overruling the defendant’s challenge to the juror J. B. Kissinger. Upon the examination of said juror touching his competency to serve as a juror in said cause, he stated that he had heard detailed what purported to be all the facts of the case by two men from the town of Snyder, and on his voir dire he further testified as follows:

EXAMINATION BY TI-IE COUNTY ATTORNEY.
“Q. Did this gentleman detail- what purported to be the facts and circumstances m this case? A. Supposed to — yes, sir.
“Q. -Was he a witness in the case? A. I don’t know.
“Q. Have you any opinion at this time relative to the guilt or innocence of the accused? A. (No answer).
“Q. You know, Mr. Kissinger, whether you have a fixed opinion at this time relative to the guilt or innocence of the defendant, don’t imu? A. Well, I couldn’t say; if that evidence was produced on the stand it would take pretty strong evidence to over-power it.
“Q. Do you know of any reason why you should not be selected-as a juror in this case? A. Well, just as I say.
“The county attorney: We pass the juror for cause:
“Examination by counsel for the defendant:
“Q. Now, you heard some one that claimed to be from Snyder, talking about the facts in this case? A. I did.
“Q. Did he relate in your hearing what purported to be the facts in the case? A. Well that was what he said.
“Q. He said they were the facts? A. Two men there on the street and he told the circumstances.
“Q. How long did you listen to this talk ? A. I never paid any attention; I was just sitting there and wasn’t over five feet from them.
“Q. You heard then, practically the whole conversation? A. Supposed to be.
“Q. Heard what purported to be a complete relation of the facts in the case ? A. Just what I have said.
“Q. And from that you formed an opinion? A. Yes, sir.
“Q. Now, Mr. Kissinger, are you able to lay aside that opinion, entirely, and as a .juror and undef your oath as a juror in this case to try this case fairly and impartially and base your verdict entirely upon the evidence produced here in the court room, ufider the charge of the court? A. Well, if that testimony was produced on the stand it would take a responsible witness to overpower that evidence.
“Q. Then you have such an opinion in this case as would reqtiire evidence to remove, at this time? A. Yes, it would require evidence.
“Q. You don’t believe that you can be a fair and impartial juror? A. I couldn’t go into that jury box with that evidence on the stand and change my opinion from what I heard then.
“Counsel for defendant: We challenge the juror:
“Examination by the court: Now, can you say that you can eliminate that from your mind, if you are retained on the jury, and try the case on the law given by the court and on the evidence of the witnesses introduced here? A. (No answer).
“Q. Are you knowing that condition that you can eliminate that and try it on the evidence that is introduced ? A. Oh, I can put that aside and go according to the law and evidence produced on the stand.
“Q. You can do that Mr. Kissinger? A. Yes, sir.
“Q. And will do that if retained on the jury? A. If I am retained on the jury I will.
“By the court: Challenge overruled.”

Our Procedure Criminal provides that:

“No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.” (Section 5861, Rev. Laws.)

This court in construing this section of the statute in the case of Turner v. The State, 4th Okla. Cr. 164, 11 Pac. 988, says:

“One accused of crime is by the constitution guaranteed a fair and impartial trial (Const. Bill of Rights, Sec. 20), but to insure this, it is not meant that jurors shall never have heard of the case, or shall not have any impressions concerning airy of the facts. In this day and age it would be difficult to find citizens competent for jury service who have not some impression as to the case, derived from newspaper accounts. The constitutional guaranty only excludes those jurors who have an Opinion upon the merits of the case, upon the guilt or innocence of the accused of the crime charged, based upon such testimony as may reasonably be expected to be presented upon the trial, or an opinion founded on personal ill-will towards the accused . . . As we construe the statute the competency of a juror is a question of fact to be determined by the court in the exercise of a sound discretion and constitutes a legislative definition of the constitutional provision; however, it can not be regarded as changing in any degree the essential qualifications which jurors must possess. It merely furnishes a test by which those qualifications are to be determined. It makes the declaration of the juror, ‘that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him, competent, as bearing upon the question of his impartiality, and requires the court to consider such declaration, when so made.11 The statute does not attempt to determine what shall be the probative force of the declaration of the juror, or how far it shall have the effect of relieving him on the disqualification arising from such an opinion. The declaration when so made is evidence to be received and given such weight as, under all circumstances appearing, it is fairly and justly entitled to. Before it can operate to remove the disqualification, the court must be satisfied of its truth, and that question is left to be determined from all the facts and circumstances appearing from his examination upon the voire dire.”

In the case of Scribner v. The State, 3rd Okla. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985, Justice Owen, delivering the opinion of the court said:

“It has been urged in this case that on the evidence produced the jury could not have returned other than a verdict of guilty, and therefore the defendant was not prejudiced by reason of the fact that some of the jurors had formed an opinion as to his guilt. As to whether a different verdict could not have been returned on the evidence, we are not called upon to decide. We might concede that such is true; that being true, we cannot agree that the defendant was not deprived of the rights guaranteed to him under our constitution. The fact remains that this jury fixed his punishment at death. -In determining this case, although the evidence may show the defendant guilty beyond all peradvenure of a doubt, and sufficient to support a verdict with the death penalty, we must nevertheless set a precedent under which a perfectly innocent man may be tried and have preserved to him his constitutional rights of the presumption of innocence, and a trial before an impartial jury. If a jury has prejudged the guilt of the defendant before hearing the sworn testimony, then it cannot be said that the defendant had a trial before an impartial jury. It is a physical impossibility for a juror, who has an opinion based on what he has understood to be the facts in the case, to weigh the evidence as though he had never heard of the case and had not already made up his mind. He may have an earnest and conscientious desire to do so and to deal out exact justice, but he will unconsciously attach a greater weight to the evidence which conforms to his preconceived opinion than he would otherwise do. He is not in that frame of mind which the constitution contemplates, and which is necessary to enable him to fairly and impartially judge as to the weight to be given to the evidence of each witness appearing before him.”

The question of the competency of the jurors as involved in this case differs widely 'from the question concerning the same subject decided in the case of Gentry v. State, 11th Okla. Cr. 355, 146 Pac. 719, wherein it is held:

“The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed by an Apellate Court, where it appears from the examination of such juror that he had not talked with any one who purported to know about the case of his own knowledge, but had read full accounts of the tragedy in the newspapers, and that he had no opinion other than that derived from reading newspapers, and that he was positive that he could disregard that opinion, and try the case solely upon the evidence, . fairly and impartially.”

We are of the opinion that before the trial court can exercise any judicial discretion in retaining upon the panel a juror who states on his voir dire, that he has formed an opinion as to the guilt or innocence of the defendant, it must be shown by an examination of the juror, not only that his opinion was formed solely in the manner named in the statute, but, in addition to this the juror must declare unequivocally that he can and will, notwithstanding such opinion act impartially and fairly upon the matters to be submitted to him.

There is nothing in this case that tends to show that the opinion of the juror was formed upon rumor, newspaper reports or common notoriety. It appears from the examination of the juror that he had formed a fixed opinion from what he had heard said by one who purported to know all about the case of his own knowledge, and he stated, “I couldn’t go into that jury box with that evidence on the stand and change my opinion from what I heard there.” He further stated that: “If that evidence was produced on the stand it would take pretty strong evidence to overcome it.”

In the case of Tegler v. The State, 9th Okla. Cr. 138, 130 Pac. 1164, it is held that:

“Where a juror testifies on his voir dire that he has a fixed opinion as to the guilt -of a defendant which it will take strong evidence to remove, and that he was then upon one side of the case, such juror is clearly disqualified, and the mere fact that the juror may be of the opinion that he- can try the case fairly and impartially by the testimony heard ,in court and the instructions of the judge, does not qualify such juror.”

Unquestionably the juror Kissinger was clearly incompetent to sit as a juror in the case, and as the defendant exhausted all of his peremptory challenges, we must hold that the error in overruling the challenge was prejudicial to the substantial rights of the defendant.

It is next contended that the court erred in excluding evidence of the dying declarations of the deceased.

Dr. J. A. Muller testified that he was duly licensed and had been in the practice of medicine and surgery about fifteen years and was called to attend the deceased immediately after the shooting and found a gun-shot wound in the abdomen; that they placed him on a cot and carried him to Mr. Broadstreet’s, and about two-thirty that afternoon, along with his father and another gentleman he went with him on the train to Lawton where he placed him in the hospital, and there with Dr. Myers performed the operation of resetting the bowels. That it was necessarily a fatal wound, “that the intestines were cut in nine different places; the mesentry, that is the membrane which hangs down between the intestines and the abdominal wall was lacerated so that there was over two quarts of blood in the abdominal cavity; that alone would have caused death.”

• On cross-examination he stated that the deceased made a statement to him about half an hour after he first saw him.

He further testified as follows:

“Q. Did he make any statement to you, or did you make any statement to him, relative to the prospects of his being able to recover from that wound ? A. I stated to him that it would be necessary to gd to the hospital at once as gun shot wounds in the intestines were always dangerous and it would be necessary to ' have an operation to see the condition of the intestines.
“Q. Did he make any expression as to his opinion at that time as to whether or not those wounds'were fatal?
“By counsel for the state: Objected to- as incompetent, irrelevant and immaterial.
“By the Court: Overruled.
“A. Yes.
“Q. You may state what he said on that subject?,
“Counsel for the state objects and the jury is excluded from the court room.
“Q. What, if anything, did the deceased say to you, relative to his opinion as to whether or not he was going to die or would recover from those injuries at that time? A. Why, he said, “they shot me through the guts, and they got me,” that’s all he said.
“Q. Where was that remark made, Doctor, with reference to the time that he made the statement as to the cause — how these injuries occurred? Was it before or afterward? A. This was before.
. “By the court: If that is all the statement you have I will exclude it.
“By counsel for defendant: I will probably be able to get others. We except to the ruling of the court and request that witness remain as a witness for the defendant.”

Ed. E. Jones, as a witness for the defendant testified that he was deputy court clerk at Snyder; had been acquainted with the deceased for about twelve years; that he saw the deceased immediately after he was shot and that Dr. Muller was there.

He was then asked:

“Q. Did you hear any statement made by other persons in his presence at that time, relative to the possibility of the deceased getting well or the improbability of his getting well? A. Yes, sir.
“Q. You may-state what was said and by whom it was said?
“By counsel for the state: Objected to as incompetent, irrelevant and immaterial. No proper foundation laid.
“By the court: This is as to his condition. Overruled. Not what he said now, unless it refers to his recovery.
“Q. Did he express, in your presence, any opinion relative to whether or not he was going to get well or would die from the effect of his wounds? A. Not directly.
“Q. Was any statement taken down at that time by any one, that was made by the deceased?
“By counsel for state: Objected to as incompetent, irrelevant and immaterial; no proper foundation laid.
“By the court: He may answer yes or no to that.
“A. There was one attempted.
“Q..‘ Who took it down? A. I tried to take it down.
“Q. Was anything said to the deceased in your presence by any one to the effect that his wounds would be fatal or that he might not recover? A. No, not to my recollection.
“Q. What became of the statement that was taken by you?
“By counsel for the state: Objected to as incompetent, irrelevant and immaterial.
“A. I don’t remember.
“Q. Haven’t you that statement, that written statement, in your possession at this time? A. No, sir.
“Q. What did you do with it? ^
“By counsel for state: Objected to as incompetent, irrelevant and immaterial.
“By the court: Sustained.
“Defendant excepts.
“Q. How did you come to take the statement down?
“By counsel for the state: Objected to as incompetent, irrelevant and immaterial.
“By the court: Sustained.
“Q. Did the deceased request you to take a statement from him?
“By counsel for the state: Same objection.
“By the court: Sustained.
“By counsel for the defendant: We except, if the court please I think that would be the strongest indication possible.”

The rule is universal that before dying declarations can be admitted in evidence it is essential, and is a preliminary fact to-be proved by the party offering them in evidence that they were made under a sense of impending death. It is the duty of the court to determine in the first instance the admissibility of declarations sought to be introduced as dying declarations and the court must pass upon the competency of such evidence as a question of law, or as some courts hold as a mixed question of law and fact. In laying the predicate for the admission of dying declarations, the expressions or statements of the deceased are always admissible if made at or about the time the declarations were made, “or even if made before or after the making of the declarations. Such a statement is not vitiated by being written down as a part of the documentary evidence by which the dying declaration is also proved.”

2 Michie on Homicide, p. 1091 and cases cited.

There can be no question as to the materiality of the evidence offered and rejected by the court in sustaining the objections to the last three questions above quoted. That the deceased made statements tending to show that he was without hope of recovery, is not disputed. The defendanti had the right to introduce this important and competent evidence for the consideration of the court in order that the court might properly determine the question of the competency of the dying declarations, and these adverse rulings passed beyond the limits of the discretion of the court and were erroneous as a matter of law.

However, the- evidence offered and received by the court we think sufficient to entitle the statements of the deceased to be admitted in evidence as dying declarations. Considering the extent and character of the wounds which the doctor testifies were necessarily fatal, and it appearing that he so informed the deceased, the deceased was shown to have knowledge of the • character of his wounds and such knowledge was not of a nature to give him any hope of recovery, and his statement, the only one that was not excluded by the court, shows that he believed that he was mortally wounded. A sense of impending death may be inferred from the character of the wound; from the opinion of his physician and from other circumstances showing his state of mind.

Says Greenleaf:

“It is enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants 'stated to him, or from his conduct or other 'circumstances of the case, — all of which are resorted to in order to ascertain the state of declarant’s mind.” Section 158.

On a trial for murder the dying declarations of the deceased are not limited as evidence in favor of the state alone, but are equally admissible in favor of. the defendant.

In Maddox v. The United States, 146 U. S. 140, 36 L. ed. 917, the Supreme Court of the United States held:

“Dying declarations are admissible on a trial for murder as to the fact of the homicide and the person by whom it was committed, in favor of the defendant as well as against him, if made by the party injured under a sense of impending death.”

In the case of Rex v. Scaife, 1 Moody & R. 551, Coleridge, J., received as evidence the following dying declaration, viz: “I don’t think he would have struck me if I had not provoked him.” Observing, when he admitted it that it might have an influence on the amount of punishment.

In State v. Ashworth, 50 La. Ann. 94, 23 So. 270, the Supreme Court of Louisiana, held that:

“Rules of evidence relative to the admissibility of dying declarations are not to be as rigorously applied when the fact itself of their having been made has been satisfactorily established, and they are in favor of the accused, as when they are sought to be urged against him.”

In speaking of such declarations in favor of the accused, the Kentucky Court of Appeals say, in the case of Haney v. Comm., 5 Kentucky L. Rep. 203:

“Such declarations are not merely opinion; they were uttered by a participant whose opportunity for knowing whether he was to blame was greater than that of any one else, and explain the intent and motive with which he was actuated in the part he played, and exhibit those internal facts, constituted of feeling, motive and judgment, which will greatly assist the jury in understanding the true nature and object of his acts as proven by other witnesses.
“To the general rule excluding matters of opinion or belief, an exception should be made allowing the declarations of the deceased in behalf of the accused, where they will explain the acts and conduct of the deceased, or show his feelings or motives, intent or belief, -when they are essential to qualify or aggravate his conduct. These are facts which, were he living, he could be compelled to testify to as a witness, and while they are generally treated, because of the mode of expression used as utterances of opinion or belief, they are essential and original facts which go far to illustrate the motives and give meaning to the acts of the declarant who speaks, in such instances, of his own acts, whose scope and effect he understands, and not those of the accused alone. The admission of such declarations can do no harm. Frauds cannot be practiced under cover of the rule. And there is not so much danger of misconception or perjury as where the declarant speaks from hostile feelings, surrounded by sympathizing friends, ready to construe his words as favorable to their own views, as may reasonably be done.”

We are inclined to think that the declarations of the deceased made between the time the fatal shot was fired and the taking of his statement in writing by the witness Jones, were competent and admissible as a part of the res gestae. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res gestae. Each case must necessarily depend on its own circumstances to determine whether the facts offered were really part of the same continuous transaction. See Price v. State, 1 Okla. Cr. 369, 98 Pac. 447.

It is said in Am. and Eng. Ency. of Law, Vol. 24, p. 662:

“The difficulty of formulating a precise rule by which the admissibility of evidence under the doctrine of res gestae shall be determined is admitted by all the authorities, but it may be stated generally that wherever it becomes important to show upon the trial of a cause a particular fact or event it is competent and proper also to show any accompanying facts and circumstances which are actually or substantially contemporaneous with it and calculated to elucidate and explain its quality and character, and so connected with it as to constitute one transaction, the rule including accompanying declarations, as well as acts, although such declarations would, apart from this doctrine, be excluded as hearsay.”
And again the rule is well stated that if such declarations “are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created' by or springing out of the transaction itself, and so-soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestae.”

Here, tbe witness fixes the interval of time as about thirty minutes, and it would seem that the continuity of the events was not broken. The declarations were by a person best qualified to know the facts and were made at a time and place, and under circumstances, which effectually excluded the presumption that they were the result of premeditation and design. If such declarations were in fact made by the deceased, they were of the very highest importance in the case, and should have been admitted. A defendant in a capital case has the right to submit competent and material evidence in his behalf to the jury, in order that it may pass upon its weight and credibility, and, if he be deprived of that right, it is a substantial one, which, when properly presented to this court by an exception, will require a reversal of his conviction.

Finally, it is contended that the court erred in permitting the prosecuting attorney in his argument to the jury to use language prejudicial to the defendant. From the record it appears that the prosecuting attorney in his opening argument referred to the defendant as, “This Black Murderer.” On objection •being'made the court admonished counsel for the state to be temperate in his remarks. In the course of his closing argument for the state, the prosecuting attorney used the expression, “This coal black murderer.” Counsel for the defendant again objected, but the court peremptorily overruled the same.

We are of opinion that the language used by the prosecuting attorney was highly improper and the failure of the court to rebuke him, or to properly charge the jury with reference to the matter, constitutes reversible error in a capital case. The personal opinion of the prosecuting attorney is not evidence and the sanction of such an opinion by the court is prejudicial error. The defendant, a negro, was on trial before a white jury, charged with the murder of. a white man, and as an appeal to race prejudice, the language used was plainly calculated to prejudice the defendant. Race prejudice has no more sanction at the bar than on the bench.

In Tannehill v. The State, 159 Ala. 51, 48 So. 662, the Supreme Court of Alabama reversing a conviction for murder says:

“It is the duty of the court to see that the defendant is tried according to the law and the evidence, free from any appeal to prejudice, or óther improper motive and this duty is emphasized where a colored man is placed upon trial before a jury of white men.”

And see cases collated in note to Hardaway v. State, 29 Ann. Cas. 1167.

The law of the land guarantees to every one accused of crime, regardless of race or color, whether of high or low degree, whether rich or poor, a fair and impartial trial, and if that right has been infringed, not in respect to mere technicalities, but in disregard of substantial rights, however undesignedly, the judgment of conviction should be reversed and a new trial awarded.

Upon the whole case we are without doubt as to the propriety and necessity of reversing this judgment. For the reasons stated, the judgment of conviction is reversed and the cause remanded for a new trial. It is further ordered that the warden of'the penitentiary deliver the defendant to the sheriff of Kiowa county, who will hold him in custody until otherwise ordered according to law.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    G. B. LOYD, WILL LOYD AND ARTHUR FENTON v. STATE.
    No. A-2303.
    Opinion Filed October 23, 1915.
    (151 Pac. 1190.)
    APPEAL — ¡Record—¡Dismissal. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or ease-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal and such an appeal will be dismissed.

      Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge.

    ■ G. B. Loyd, Will’Loyd and Arthur Benton, were convicted of grand larceny and appeal.
    Appeal dismissed.

      B. D. Reasor, for plaintiff in error.
    P. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, G. L. Loyd, Will

Loyd, Arthur Fenton, and Frank Laird were jointly informed .against, and by the verdict of the jury found guilty of grand larceny.' The information charged the larceny of four hundred and sixty pounds of seed cotton of the value of eighteen dollars and forty cents and three picking sacks of the value of three dollars, the personal property of A. J. Raper.

'■ An appeal was attempted to be taken by filing in this court on July 1, 1914, a petition in error with' case-made. The petition recites that the state:

“at the October, 1913, term of the Superior Court of Pottawatomie county, Oklahoma, recovered a judgment, by the consideration of said court, against the said plaintiffs in error, in a certain action then pending in said court, wherein the said state of Oklahoma was plaintiff and G. B. Loyd et al were defendants. A certified transcript of the record of said court is hereto attached, marked ‘Exhibit A.’ ”

An examination of the record discloses that the transcript contains no copy of the judgment referred to in the petition in error. By numerous decisions, it has been held that this court will not review proceedings of the trial court, unless the transcript of case-made contains a copy of the judgment of conviction from which the appeal is taken.

Fowler v. State, 11 Okla. Cr. 157; 143 Pac. 658;

Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328;

Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535;

McCellan v. State, 2 Okla. Cr. 633, 103 Pac. 875, 876.

The so-called transcript of case-made contains a copy of the verdict, the motion for a new trial, and also the following recital:

“Motion of defendant Frank Baird for new trial sustained.
“State excepts.
“Defendants Arthur Fenton, Green Boyd and Will Boyd sentenced to confinement at hard labor in the state penitentiary at McAlester for a period of one year and to pay costs of this proceedings. Defendants and each of.them except, as per journal entry.”

But the record does not contain the journal entry of the judgment. When an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination and the appeal will be dismissed for want of jurisdiction.

We may remark, however, that in this case the errors assigned are based upon the instructions given by the court and it appears from the transcript that n,o request for instructions were made and no objection was made nor exception taken to the instructions given by the court. Only prejudicial errors raised by exceptions reserved require a new trial. For this reason it would be a useless waste of effort to seek to amend the record in this case. For the reasons stated, the appeal is dismissed.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYRE, P. J.

text:
    EMMET GRAHAM v. STATE.
    No. A-2153.
    Opinion Filed October 14, 1915.
    (152 Pac. 136.)
    1. VERDICT — Evidence—New Trial. It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only the province, but the duty of the court to set aside such verdict when it is contrary to the evidence, or when there is no evidence to support it.
    2. LARCENY — Possession of Stolen Property — Effect as Evidence. The possession of stolen property recently after the larceny, may or may not be an incriminating circumstance, whether it is or not depends upon the facts and circumstances connected with such possession; and where the testimony for the state standing alone raises a presumption of fact in favor of an innocent possession and there is nothing in it from which the jury may legitimately infer a felonious talcing, the evidence is insufficient to sustain a conviction. And where the defendant’s explanation that he bought the cattle is undisputed, and is supplemented by the testimony of as many witnesses as the court would permit to testify as to his good character and honesty, the law will presume in behalf of innocence. It supposes legality rather than crime.

      Appeal from District Court, Stephens County; J. T. Johnson, Judge.

    Emmet Graham, was convicted of cattle stealing and appeals.
    Reversed.

      Bond & Sandlin and J. B. Wilkerson and Hainer, Burns & Toney; for plaintiff in error.

      Chas. West, Atty. Gen. and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYRE, P. J.

The plaintiff in error was convicted on an information wherein he was charged with the larceny of twenty head of cattle, the personal property of PI. S. Gross, and his punishment fixed at five years imprisonment in the penitentiary. From the judgment rendered on the verdict an appeal was taken by filing in this court on December 23, 1913, a petition in error with case-made.

A substantial statement of the evidence is as follows:

H. S. Gross testified that he lived twelve miles east of Duncan; that on or about the 3rd day of February twenty head of his cattle were taken from his pasture; that with Mr. Adams he tracked the cattle into and out of the defendant’s pasture and on through the town of Doyle and into the town of Marlow; that the tracks showed that one man on horse back drove the cattle to the defendant’s pasture and that two men on horse back drove the cattle into Marlow. That when he arrived at Marlow he found that the cattle had been shipped to Wichita in the defendant’s name. That he saw Jesse Graham and told him' he wanted to see Emmet and -Jesse 'telephoned to- the defendant and he came to town; that he told the defendant about his cattle being taken, and they were “Three Diamond stuff,” and the defendant said “Yes, I have handled fourteen head of “Three Diamond stuff,” and that he had bought the cattle and showed the 'stub of a check, saying:

“If the cattle are yours, I would just as soon pay you as pay the other fellow,” that he wanted the right man to have the money, and would like to have a few more days to find out something about the check; that he wanted to stop the payment of the check, and that he would turn over his team and buggy to witness until he got it straightened out. That three or four days later he paid witness three hundred and fifty dollars by check on the bank at Marlow.

Walter O’Quinn, testified that he lived nine or ten miles from Marlow, and saw the defendant driving a bunch of cattle by his place about the time some cattle were stolen from Mr. Gross; that he often saw the defendant driving cattle.

Elmer Lowe testified that he lived eleven miles from Marlow, and saw the defendant about the time Mr. Gross’s cattle were stolen driving a bunch of cattle; paid no particular attention to the defendant, because he had noticed him handling cattle around there for five or six years. That it was about noon when he saw him.

The defendant as a witness in his own behalf testified that he was twenty-six years old; had lived in that community all his life; that he bought the cattle in question from H. D. Wilson, and paid him three hundred and five dollars for them, and- shipped them to Jones Brothers at Wichita; that he left his place eighteen miles from Marlow and drove them there that day; that the next day in answer to a telephone call from his brother Jesse he went to Marlow and met Mr. Gross who told him he had lost some cattle and that his brand was “Three Diamond Slash,” and he told Mr. Gross that he had shipped fourteen head of that brand; that he had bought from H. D. AVil'son; and Mr. Gross said all he wanted was pay for the cattle and he told him if he could get the check back he would pay him. That he went to see Wilson and told him that there was a fellow in Marlow claiming the cattle that he had bought of him; that Wilson got mad and said that he had bought part of the cattle and raised the rest of them. The court sustained the state’s objection to any further testimony as to what Wilson said.

Defendant further testified that he settled with Mr. Gross by paying him three hundred and fifty dollars, and that Wilson paid •him two hundred and gave him a note for one hundred dollars.

The defendant introduced five character witnesses.

R. J. Deets testified that he was pastor of the M. E. church South at Duncan for three or four years and knew the general reputation of the defendant as to being a law abiding citizen and that “No young man in that community has a better: reputation than Emmet Graham.”

Tq the same effect was the testimony of R. L. Montgomery.

Mr. Atchison testified that he was in the banking business at Marlow and was a farmer and had known the defendant seventeen years, and knew his general reputation in that community as being a law abiding citizen and that it was good.

The testimony of Mr. Liny and Mr. Gann was to the same effect.

Thereupon the court announced that he would limit the number of character witnesses to five, to which ruling the defendant excepted.

The motion for a new trial on the ground of newly discovered evidence was supported by the affidavit of E. L. Gilstrap, to the effect that on the morning of February 3rd, he met Harry B. Wilson driving fourteen or fifteen head of cattle; that he knew said Wilson and asked him what he was doing up there; that affiant did not know Emmet Graham until after his conviction. Also the affidavit of Ethel Wilson to the effect that she resided two miles north of Kilgore, in Grady county, and knew Harry Wilson for several years and in the early part of February he was at her house and showed her a check signed by Emmet Graham; that said Wilson had bought a yearling from affiant and owed her for the same, and he told her if she would cash the check, he would pay her what he owed her. That affiant is in no way related to the defendant or said Wilson. The defendant’s affidavit was to the effect that he did not become acquainted with the said E. L. Gilstrap until after his conviction, and that he had no knowledge whatever of the facts stated until after his conviction, and he could not with reasonable diligence have produced the said evidence on his trial.

The main question presented is the sufficiency of the evidence to support the verdict and judgment. It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only the province, but the duty of the court to set aside such verdict when it is contrary to the evidence, or where there is no evidence to support it.

Our Procedure Criminal provides that a new trial shall be granted, “When the verdict is contrary to law or evidence.”

Section 5937 Rev. Laws.

Under this provision the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court. The performance of this duty on the part of the court is the exercise of judicial discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon his trial for an alleged offense.

The only evidence offered by the state tending to incriminate the defendant was the possession of the cattle alleged to have been stolen, and there is no conflict between the testimony of the prosecuting witness and that of the defendant as to the fact that the defendant, who the evidence°shows had been engaged in the purchasing of cattle for several years, purchased the cattle from one Wilson. The possession of stolen property by the defendant recently after the larceny, if unexplained is a circumstance from which the jury may infer his complicity in the larceny. In determining the weight to be attached to this circumstance as evidence tending to prove guilt, the jury should take into consideration all the facts and circumstances connected with such possession, and their relation to the other evidence in the case. Where the possession was open and there was no concealment, and where the testimony for the state, as to the possession standing alone raises a presumption of fact in favor of an innocent possession and there is nothing in it from which the jury may legitimately infer a felonious taking, then a verdict of guilty cannot be sustained, and it would be the duty of the court to set it aside.

Against the one fact of possession the defendant’s explanation that he bought the cattle is undisputed, and his explanation is supplemented by the testimony of as many witnesses as the court would permit to testify as to his good character and honesty. Under such circumstances the law will presume in behalf of innocence. It supposes legality rather than crime.

When we recall the presumption that the law always indulges in as to the innocence of the defendant, and the necessity of establishing his guilt beyond a reasonable doubt, and the force and effect, which in a case of this kind, should have been given to the evidence of good character, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant, upon the ground that the evidence was insufficient to sustain a conviction.

The charge of the court consisting of seven instructions makes no reference as to the law of circumstantial evidence or evidence of good character, and as to the law in respect to the possession of property recently stolen, the only reference is as follows:

“No. 4. You are instructed if you believe from the evidence or entertain a reasonable doubt as to whether or not the defendant did purchase said cattle, you should resolve any such doubt in favor of the defendant and acquit him.”

We think this instruction subject to the criticism made, that it requires the jury to believe from the evidence that the defendant was innocent before finding him not guilty, thus in effect depriving the defendant of the presumption of innocence until the contrary is proved. However, no request for instructions was made and no objection was made or exceptions taken to the instructions given.

Upon the whole case we are without doubt as to the propriety of reversing the judgment, and we are of the opinion that the evidence is not sufficient to support the verdict. The judgment is therefore reversed.

FURMAN and ARMSTRONG, Jb., concur.


text:
      MELVIN STEPHENS v. STATE.
    No. A-2200.
    Opinion Filed October 23, 1915.
    (152 Pac. 138.)
    1. INDICTMENT AND INFORMATION — Motion to Quash — Variance from Complaint. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer is unavailing, and was properly overruled.
    2. CONTINUANCE — Discretionary Ruling — Appeal. The granting or refusal of a continuance rests in the sound discretion of the trial court, and a ruling of that court will not be reviewed, unless an abuse of discretion is shown.
    3. APPEAL — Verdict—Evidence. In a prosecution for the larceny of live stock, the evidence examined and held sufficient to sustain the conviction, and that no material error was committed on the trial.

      Appeal from District Court, Muskogee County; R. C. Allen, Judge.

    Melvin Stephens, convicted • of cattle theft, appeals.
    Affirmed.
    The statement of facts as set forth in the attorney general’s brief in this case is as follows:
    “Melvin Stephens, an unmarried negro, at the time of this larceny, was living in the city of Muskogee. His father, George Stephens, was living on a farm in McIntosh county, about fifteen miles south of Muskogee.
    On Saturday, the 3rd day of May, 1913, George Stephens came to Muskogee. Pie drove a double team to a buggy, one of the horses being grey. Pie arrived at Muskogee about noon of that day and put bis team in a stable where his son Melvin kept a little sorrel roan mare. Melvin and George both claim that they did not see each other on the occasion of this visit.
    On that night, Mr. E. S. Stockwell had a yellow Jersey cow stolen from a lot in the city of Muskogee where the cow had been staked out for the night. The cow was missed about six o’clock in the morning following and her loss immediately reported to the sheriff’s office.
    The sheriff and one of his deputies at once started a search and about four o’clock that evening found the cow hid in the brush, on George Stephen’s farm fifteen miles south of town. There had been a rain that night and the tracks of the cow and a horse were followed.
    Persons along the way saw some negro, riding a grey horse, drive a yellow cow in that direction early in the morning. These witnesses were unable to positively identify that person as the defendant, but recognized the horse as the one owned by George Stephens, and one of the witnesses believed the rider to be Melvin Stephens.
    There is no dispute in this case but that the cow of Stock-well was stolen on the night of May 3, 1913, and immediately driven, by some one riding George Stephens’ grey horse, to George Stephens’ farm fifteen miles south. The defendant, however, relied upon an alibi, claiming that on the night in question he left Muskogee on the south bound Katy train between the hours of eight and nine and went to Stringtown, Oklahoma, in Atoka county and worked there from the 5th day of May until the time of his arrest in the following month.
    Defendant admits that he took his father’s' grey horse out of the stable on Saturday evening; that he put a saddle and bridle on it; that he took it without his father’s knowledge or consent; but, he says, that one Eugene Moore, another negro who looked just like him (just his color, weight, age and height) wanted a horse to ride out into the country five or six miles and as his (Melvin’s) sorrel roan mare was lame that he (Melvin) after searching around for his father and failing to find him, took the liberty of letting Eugene Moore use his father’s grey horse, with the understanding that Moore would take the horse, after using it, to his father’s farm south of town.
    Melvin says this generous offer of his was accepted by Moore and that the last time he saw the old grey horse was that evening just before he took the train for Stringtown. At that time Moore had not departed on his trip.
    Now just how Melvin expected the old man to get back home with the use of his little lame sorrel roan mare is not disclosed by the record, but having requested Moore to take the grey horse home to the old man, he (Melvin) must have thought the old man would use the sorrel roan mare, because he knew the old man had to have a double team to return with.
    Now if the sorrel roan mare was too lame for Moore to ride five or six miles why wasn’t she too lame for the old man to drive"fifteen miles? Melvin doesn’t explain.
    Another thing; why should Moore if he wanted to steal a cow, drive the animal to old man Stephens’ place?
    The evidence, shows that Moore had never been there, at least before that time. How did he know the way on a dark rainy night and why should he select that time to make the trip, and, why if Melvin is telling the truth, didn’t Moore when he had returned from his trip into the country and found that old man Stephens had not yet departed for home, why is it that Moore didn’t leave the grey horse in the barn and let the old man take it home himself? The old man never started home until the Sunday following.
    We’ll admit that a nice, slick, yellow milk-giving Jersey cow has its attraction, but the unusual and uncalled for generosity on the part of Moore is only exceeded by his remarkable resemblance to the defendant.
    Moore is the most unusually accommodating individual of whom it has ever been our pleasure to read.
    For the use of this grey horse for a five mile ride, he is willing to deliver him fifteen miles and take his chances of finding some way back, and then, his unusual generosity bubbling up, he thought it incumbent upon him to present the old man with a nice Jersey cow, a little token of his appreciation, for the use of the grey horse, and still not Satisfied, Moore is ‘so accommodating as to present for Melvin in his dilemma — a perfect counterpart.
    Oh, Eugene Moore, with all your arts,
    You are a man of “many parts;”
    Combine your arts and diverse acts ’Twould make a book like “Moore on Facts.”
    If milk we need, you find the cow,
    It matters not just where or how,
    And when we need a duplicate you’re there,
    Like Mel in weight, height and color of hair.

      Oh, Moore, old boy, yofi’ll never know How great is our affection,
    But rest assured, where ere you go,
    We made a good selection.
    And if, by chance, you should return,
    “For better or for worse,”
    Come ’round and serve out Melvin’s term And ride to “the pen on the old grey horse.”
    Edward Curd, Jr.,

      For plaintiff in error.

    Smith C. MatsoN,

      Asst. A tty. Gen., for the State.

   DOYLE, P. J.

The plaintiff in error, Melvin Stephens, was 'tried in the District Court of Muskogee county on an information charging him with the theft of a cow. The jury found him guilty, but failed to agree upon the .punishment. The court rendered judgment and sentenced him to be imprisoned in the penitentiary for the term of five years. To reverse the judgment he appeals.

The first assignment of error relied upon to-wit: “That the court erred in overruling the motion to quash and set aside the information, because the defendant had not been given a preliminary examination,” is wholly without merit. In that it appears that the only variance between the preliminary complaint upon which the defendant was held to answer and the information filed in the District Court is that the preliminary complaint included an allegation as to the value of the animal stolen. This allegation was mere surplusage. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883. The preliminary complaint was sufficient to charge the crime of larceny of a domestic animal, and the record shows affirmatively that the defendant had a preliminary examination. See Panosky v. State, 8 Okla. Cr. 116, 126 Pac. 451.

The next assignment is that the court erred in overruling the defendant’s motion for a continuance. The granting or refusal of a continuance rests in the sound discretion of the trial court, and a ruling of that court will not be reviewed, unless an abuse of discretion is shown.

We think the motion for continuance was properly overruled.

Another assignment of error is based upon an exception taken to the instruction on the defense of alibi. This assignment is hypercritical.

The trial court instructed the jury in part as follows:

“Bearing in mind this instruction, you are instructed that if upon considering the evidence of alibi in this case you entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the offense charged in the information herein, you should acquit him.”

And also instructed the jury that if upon a consideration of all the evidence in the case the jury entertained a reasonable doubt of the defendant’s guilt, it was their duty to acquit him. The defense interposed by the defendant and the law applicable thereto was fully and fairly submitted to the jury in a charge that was not subject to legal objection.

Finally, it is insisted that the evidence is insufficient to sustain the judgment. There cannot be any serious ground for this claim. We have seldom seen a stronger case of circumstantial evidence and the rule is well settled, that this court will not disturb the verdict on account of the evidence, when there is evidence to support it. The judgment is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: PER CURIAM.

text:
    J. W. KINTZ v. STATE.
    No. A-2366.
    Opinion Filed October 30, 1915.
    (152 Pac. 139.)
    APPEAL — Verdict—Evidence. Where the jury find a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside in the absence of prejudicial error.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Affirmed.

      M. G. Bailey, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. W. Kintz, was convicted on an information.charging that he did have possession of three gallons of whisky with the intention of violating provisions of the prohibitory law by transporting and selling the same, and his punishment was fixed at confinement for sixty days in the county jail and a fine of one hundred dollars. From the judgment rendered on the verdict of the 23rd day of September, 1914, he appeals.

Without going into a detailed statement of the testimony the transcript shows that Ed Maloney and Steve Lowery, deputy sheriffs in executing a search warrant issued against the defendant’s place of business, a barbecue stand near the Convention Hall in the city of Muskogee found a large number of empty whisky bottles and in a trash pile three or four steps from the back door of the defendant’s place of business they found three gallons of whisky; that there was a well defined path from the back door to the trash pile. They further testified that they knew the reputation 'of the defendant’s place of business and that it was bad — as a place where intoxicating liquors were kept and sold.

The defendant as a witness in his own behalf testified that the trash in which the whisky was found concealed was not on his premises. Two other witnesses testified that the trash pile was not on the defendant’s premises.

The only error assigned worthy of mention is that the evidence was not sufficient fe> support the verdict.

We think the foregoing statement of facts suffices it to show that the case was one for the jury. Where the jury finds a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside in the absence of prejudicial error.

Finding no error in the record, the judgment appealed from will be affirmed.


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    ED McGAUGH v. STATE.
    No. A-2296.
    Opinion Filed October 30, 1915.
    (152 Pac. 140.)
    INFORMATION — Defects—Objection—Waiver. The sufficiency of an information cannot be raised upon appeal, unless some foundation was laid therefor before final judgment was rendered, and where the record shows that no demurrer was interposed and no motion in arrest of judgment was made after verdict, and no objection taken or question raised as to the sufficiency of the information in the trial court, the defects, if any, were in effect waived.

      Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.

    Ed McGaugh, convicted of assault with intent to do bodily harm, appeals.
    Affirmed.

      George R. Rider and B. H. Hurt, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of an assault with a dangerous weapon with intent to .do bodily harm, and his punishment assessed at a hundred days imprisonment in the county jail. From the judgment rendered on the verdict he appealed by filing in this court on June 18, 1914, a petition in error with a certified transcript of the record.

The contention is made in this court that the information was defective in failing to allege facts sufficient to constitute the offense of assault with intent to do bodily harm. It appears from the record that no demurrer was interposed to the information and no motion in arrest of judgment was filed, and no objection to the sufficiency of the information was made in the motion for a new trial.

The sufficiency of an information cannot be raised upon appeal, unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of 3 defective information by demurring thereto before the trial; by objecting to the introduction of evidence on the ground that the facts stated do not constitute a public offense, or by motion in arrest of judgment. The function of a demurrer is to defeat the information without a trial whenever it appears, that it is subject to one or more of the five objections named in our procedure criminal. Section 5791 Rev. Laws.

The record in this case does not contain a transcript of the testimony, nor is any objection noted to the introduction of evidence by the state. Where the defendant makes no objection to the sufficiency of an information from the time of arraignment until final judgment has been pronounced, he has in effect waived his right to question the sufficiency thereof. This court cannot consider questions that were not raised in the trial court as authorized by statute, unless fundamental error prejudicial to the substantial rights of the defendant is apparent. The judgment appealed from is therefore affirmed.


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    W. E. DOAN v. STATE.
    No. A-2564.
    Opinion Filed October 23, 1915.
    (152 Pac. 141.)
    APPEAL — 'Legislative Control — Dismissal Grounds. An appeal may be taken by the defendant, as a matter of right, from a judgment of conviction, but the manner of taking and perfecting such appeal is a proper matter for legislative control, and under the statute , ‘ requiring the plaintiff in error to pay to the clerk fifteen dollars advance fees, or in lieu of such payment the filing of a proper affidavit, the plaintiff in error is required to pay to the clerk such advance fees, or file such affidavit within the time prescribed by the statute for taking such appeal, and when this is not done within the time for taking such appeal, this court does not acquire jurisdiction and such an appeal will be dismissed.

      Appeal from District Court, Ottawa County; Preston S. Davis, Judge.

    W. E. Doan, convicted of crime, appeals.
    Appeal dismissed.

      Riddle, .Bennett & Mitchell and O. P. Mason, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Under an indictment preferred by the grand ■ jury of OttaWa county, the plaintiff in error, W. E. Doan, was charged-with the crime of procuring an abortion and upon his trial before a jury was convicted and his punishment fixed at fifteen days confinement in the county jail. Judgment and sentence in pursuance of the verdict was rendered May 7, 1914. An appeal from the judgment was attempted to be taken' by forwarding a petition in error and case-made to the clerk of thisJ court sometime in November, 1914. The filing fee of fifteen dollars required by thd statute was not deposited with the clerk of the court.and he very properly refused to file the case and returned the same by express. On October 15, 1915, the necessary deposit was made and the case was filed of that date also an application to have the same filed as of the date first received. The attorney general thereupon filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the time the judgment was rendered.

Section 7, Ch. 97, Session Laws 1913, p. 163, provides:

“Section 7. No cause shall be docketed nor process issued thereon (except where a proper affidavit as is now provided by law, or criminal caüses in (which?) the state of Oklahoma is appellant) until the plaintiff in error or appellant shall pay to the clerk fifteen dollars advance fees; and when said sum shall have been exhausted by proper charges in said cause, the clerk shall require the plaintiff in error or appellant to make further deposit of a sufficient sum to cover all additional costs that may accrue in said cause:”

An appeal may be taken by the defendant, as a matter of right from any judgment in a criminal action against him, but the manner of taking and perfecting an appeal is a proper matter for legislative control; and, under the statute requiring the plaintiff in error to pay to the clerk fifteen dollars advance fees, and when said sum shall have been exhausted by proper charges to make further deposit of a sufficient sum to cover all additional costs that may accrue, or in lieu of such payment an affidavit showing that the plaintiff in error is wholly without means, and by reason of his poverty is unable to pay the costs of the appeal, the fifteen dollars advance fees must be paid to the clerk or in lieu thereof a proper affidavit must be filed in the case within six months from the date on which the judgment .appealed from was rendered. In this case it is not shown that the petition in error and case-made were received at the .office of the clerk within six months from the date of the judgment and the fifteen'dollars advance fees were not paid to the clerk until nearly a year and a half after the date of the judgment. The plaintiff in error having failed to p£.y to the clerk the fifteen dollars advance fees within six months from the date of the judgment, it follows that the motion to dismiss the appeal is well taken and should be sustained. The appeal herein is therefore dismissed.

FURMAN and ARMSTRONG, JJ., concur.


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    J. A. WEIRMAN v. STATE.
    No. A-2369.
    Opinion Filed October 30, 1915.
    (152 Pac. 141.)
    INTOXICATING- LIQUOK.S — Unlawful Possession — Evidence. In a prosecution for having possession of intoxicating liquors with intent to violate provisions of the prohibitory law, where the evidence shows that the amount of such liquors in the defendant’s possession at his home was less than the amount prescribed by section 6, ch. 26, Session Laws 1913, declaring that the keeping in excess of a certain amount of intoxicating liquors ‘ ‘ shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors,” and where there is a total absence of direct or presumptive evidence to sustain the charge, the judgment of conviction will be reversed.

      Appeal from County Court, Pawnee County; Geo. C. Merritt, Judge.

    J. A. Weirman was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      McNeill & McNeill, for plaintiff in error.
    •S’. P. Preeling, Atty. Gen., and R. McMillcn, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. A. Weirman was convicted and sentenced to pay a fine of fifty dollars and be confined in the county jail for thirty days, upon an information charging that on the 12th day of May, 1914-, he and his wife Lou Weirman did have the unlawful possession of certain beer with the unlawful intent to sell the same. When the case was called for trial it was shown that Mrs. Weirman by reason of sickness was unable to leave her home to attend the trial.

Upon the separate trial of the plaintiff in error, the evidence for the state shows that the sheriff, under-sheriff and county attorney in executing a search warrant visited the home of the defendants and there found about fifty bottles of beer and a bottle of whisky. The possession of said liquor was the only inculpatory fact proven.

When the state rested, the defendant filed the following motion:

“Mr. McNeill: Comes now the defendant herein and moves the court to instruct the jury to return a verdict of not guilty for the reason that the evidence offered on behalf of the state is not sufficient to sustain a verdict of guilty, the state having introduced no evidence except that at the residence of the. defendant was fifty quarts of beer and one quart of whisky, the same being less than one gallon of whisky, and less than one cask of beer, therefore being nothing more than the mere possession of liquor and not of a sufficient amount to create the presumption that ihe •same was held for sale.
“The Court: Overruled.”

As a witness in his own behalf the defendant testified that five or six days prior to the seizure he had received a barrel of beer and introduced the records of the express company showing this fact; that he and his family had consumed about twenty bottles of beer and he had fifty left when the seizure was made.

The assignments of error question the sufficiency of the evidence to support the verdict, and it is urged that the evidence for the state shows that the search warrant issued and the liquor was seized in direct violation of the statute, which provides:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.” (Section 3616 Rev. Laws.)

We have carefully examined the record and are fully convinced that the evidence in this case is entirely insufficient to sustain the conviction. The rule of evidence prescribed by the statute in cases of this kind, Section 6, Ch. 26 Session Laws, 1913, declaring that the keeping in excess of “one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation thereof, or substitute therefore. . . . shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” was not met by the evidence in this case. For this reason in the absence of any evidence from which the jury could rationally conclude that the defendant was guilty, we think it would have been a proper exercise of the power vested in the trial court to have advised an acquittal of the defendant upon the ground that the evidence was insufficient to sustain á conviction. There is nothing in the testimony of the witnesses for the state that tends to show that the defendant’s home, where the liquor was seized, came within any of the exceptions of the statute above quoted.

In Foreman v. The State, 8th Okla. Cr. 480, 128 Pac. 1101, it is said:

“The bill of rights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guarantee in Art. 2, Sec. 30 (38 William’s) that ‘the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, or seizures shall not be violated,’ should be respected by all peace officers* and law-abiding citizens.” And the statute (Section 3616 Rev. Laws) is in accordance with the bill of rights.

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


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    JOHN GORDON v. STATE.
    No. A-2276.
    Opinion Filed October 23, 1915.
    (152 Pac. 142.)
    APPEAL — Dismissal. In felony cases the appeal must be taken within six months after the judgment is rendered. Section 5991, Eev. Laws. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by the statute, this court docs not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

      Appeal from District Court, LeFlore County; W. H. Brown, Judge.

    John Gordon was convicted of murder and appeals.
    Appeal dismissed.

      Tom W. Neal, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Under an indictment preferred by the grand jury of LeFlore county, wherein the plaintiff in error, John Gordon and Sam Gordon were jointly charged with the murder of one Lewis Johnson, in said county on or about the 22nd day of October, 1912, the plaintiff in error was upon his separate trial convicted of murder and his punishment fixed at imprisonment in the penitentiary for life. Judgment and sentence in .pursuance of the verdict was rendered on the 26th day of November, 1913. From the judgment an appeal was attempted to be taken by filing-in this court on Wednesday, May 27, 1914, a petition in error with case-made.

The attorney general has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered.

Section 5991 Rev. Laws provides:

“In felony cases the appeal must be taken within six months after the judgment is rendered.”

Section 5341 Rev. Laws provides:

“The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded.”

Section 2942 Rev. Laws provides: ,

“The word 'year’ means a calendar year, and 'month/ a calendar month. Fractions of a year are to be computed by the number of months, thus; half a year is six months. Fractions of a day are to be disregarded in computations which include more than one day, and involve no question of priority.”

In the case of Barks v. The State, 11th Okla. Cr. 466, 147 Pac. 1055, it is said:

“An appeal from a judgment of conviction in a felony case is taken by filing in this court a petition in error with cade-made, or transcript of the record, attached, together with proof of service of the notices of appeal as required by statute (Section 5992, Rev. Laws). When this is not done within the time allowed by statute (Section 5991, Rev. Laws), this court does not acquire jurisdiction of the appeal.”

In this case it appears from the record that the petition in error and case-made was not filed with the clerk of this court within six months after the judgment was rendered. It was one day too late. It follows that the motion to dismiss’ the appeal should be sustained.

We may remark, however, that an examination of the record discloses that the sole assignment of error relied upon for reversal is without merit.

It also appears that the homicide charged was one of four or five the immediate results of a sanguinary melee, occurring at a negro festival held in a church at a place called Cedars.

The motion to dismiss will be sustained, and it is ordered that the purported appeal be and the same is hereby dismissed.

FURMAN and ARMSTRONG, JJ., concur.


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    WALSEY CLARK v. STATE.
    No. A-2277.
    Opinion Filed October 23, 1915.
    (152 Pac. 143.)

      Appeal from- District Court, LePlore County; W. H. Brown, Judge.

    Walsey Clark, was convicted of murder and appeals.
    Appeal dismissed.

      Tom, W. Neal, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Walsey Clark, was indicted for the crime of murder, alleged to have been committed in LePlore county October 22, 1912, by shooting with a pistol one Evans Johnson. Upon his plea of not guilty he was tried and convicted of murder and his punishment fixed at imprisonment in the penitentiary for life. In pursuance of the verdict the court rendered judgment on the 26th day of November, 1913. From, the judgment an appeal was attempted to be taken by filing in this court on Wednesday, May 27, 1914, a petition in error with case-made.

The attorney general has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered. The question raised by the motion to dismiss is identical with the question presented in the companion case of Gordon v. State, this day decided. Eor the reasons given in the opinion in that case the motion to dismiss the appeal will be sustained. It is therefore ordered that the purported appeal be and the same is hereby dismissed.


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    A. ECCLESTON v. STATE.
    No. A-2220.
    Opinion Filed November 2, 1915.
    (152 Pac. 337.)
    1. PRESENTATION BELOW — Instruction. Instructions given by the court and not excepted to by the defendant at the trial or before the trial court will not be reviewed on appeal, unless fundamental error is apparent.
    2. APPEAL — Decision. Where after an examination of the entire record it appears that the defendant has had a fair and impartial trial, and that no material error has been committed by the trial court, and the verdict seems to be amply sustained by the evidence, this court will not disturb the verdict or judgment of the trial court.

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

    A. Eccleston, convicted of grand larceny, appeals.
    Affirmed.

      P. A. Sompayrac, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, A. Eccleston, W. M. Kaufman, and Ernest Branning were jointly charged with the larceny of eight joints of casing of the value of eighty dollars, the property of W. H. Bryon. On his separate trial plaintiff in error was found guilty and his punishment fixed at imprisonment in the penitentiary for the term of two years. From the judgment rendered in pursuance of the verdict he appealed by filing in this court on March 26, 1914, a petition in error with case-made.

The evidence shows that W. H. Bryon missed eight joints of. new casing from his oil lease southeast of Bartlesville; that he noticed where a wagon drove up to the casing pile and where two men had walked around there and rolled the casing on to the wagon. It had rained enough that night to lay the dust and Mr. Bryon with Mr. Petr ell, who worked for him tracked the wagon to Bartlesville, where they located the casing in a box car near the Bartlesville Salvage Co.’s place. The owners of the salvage company identified the team and wagon that brought the casing to their place as that of plaintiff in error, Eccleston, who with two men named Kaufman and Branning came to their place early in the morning and offered the casing for sale and they bought it for thirty-two dollars, giving the check to plaintiff in error who indorsed the check and cashed it at the First National bank.

The evidence of the defendant and his young son, about twelve years of age was to the effect that on the night of the theft plaintiff in error slept at home and that early the next morning Branning came to his house and told him he wanted him to go to the Bartlesville Salvage Co., and collect a check for him; that he had sold the Salvage Co. some casing; that Branning owed plaintiff in error some fourteen dollars and wanted to pay it; that plaintiff in error walked with him to the Bartlesville Salvage Co., and just before they reached there they were joined by Kaufman. That Branning was engaged in buying and selling junk and had frequently hired his team, and wagon.

Counsel for plaintiff in error in his brief states that he has abandoned the assignments of error set forth in his petition and further states that: “He now relies upon the following specification of error, which though not mentioned in his petition in error, he believes of sufficient importance to authorize a reversal of the case in view of the weakness of the state’s case. , The court erred in defining a ‘reasonable doubt.’ ”

There was no specific or general objection made or exception taken to any of the instructions given by the court.

In Williams v. The State, 12th Okla. Cr. — 151 Pac. 900, it is said:

“Only prejudicial errors raised by exceptions reserved require a new trial, and it is only, when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done that we are permitted to reverse a conviction, whether or not an exception was taken in the trial court.”'

Upon a careful consideration of the whole case we are of the opinion that the verdict was warranted by the evidence and that the defendant had a fair trial. The judgment appealed from will' therefore be affirmed.

FURMAN and ARMSTRONG, JJ., concur.