text:
    SAMUEL MOODY v. STATE.
    No. A-2429.
    Opinion Filed May 5, 1917.
    (164 Pac. 676.)
    1. EVIDENCE — Accomplice Testimony — Corroboration — Connection With Crime. Evidence corroborative of an accomplice need not directly connect tlie defendant with the commission of the ’crime; it is sufficient if it tends to commit him with its commission.
    2. SAME. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but. may be circumstantial only.
    3. SAME — Sufficiency. It is not essential that the corroborating evidence shall coyer every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, -the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.
    4. HOMICIDE — Accomplice Testimony — Sufficiency of Corroboration. Corroborating evidence in this ease examined, and held sufficient to sustain a conviction.
    5. APPEAL AND ERROR — Harmless Error — Cross-Examination. A judgment of conviction will not be reversed because of the refusal of the court to permit further cross-examination of one of the accomplices where it is apparent that full opportunity was given for cross and recross examination, and it is not shown that any new or material matter not already covered by the previous ■cross-examination is to be inquired into.
    6. APPEAL AND ERROR — Record—Argument of County Attorney. Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full and a dispute arises as to what was said in argument, this court is bound by the finding of the trial court recited in the record as to what occurred.
    7. SAME — Harmless Error. Where the record affirmatively discloses that the argument of the county attorney was not a comment upon the failure of the defendant to testify, but was a comment upon certain evidence introduced in the case, and was made in reply to argument along similar lines by counsel for defendant, the judgment of conviction will not be reversed. In order to constitute reversible error the argument complained of must amount to a direct or indirect comment on the failure of the defendant to testify in his own behalf.

      Appeal from District Court, Pottawatomie County; Frank Mathews, Assigned Judge.

    Samuel Moody was convicted of murder, and he appeals.
    Affirmed.
    The appellant, Samuel Moody, and the deceased, W. P. Rausin, were farmers and had lived, prior to the date of the alleged homicide on January 1, 1914, for many years on adjoining farms in Lincoln county, Okla. Rau-sin’s farm was directly north of Moody’s. Late in the evening of January 2, 1914, Rausin was found dead in a little ravine in his wood pasture northeast of his house, and between a half and three-quarters of a mile northeast of Moody’s house. His team, hitched to a wagon half loaded with wood, was found 200 or 300 yards from-where the body lay. The tracks of the wagon wheels when followed back toward the body disclosed that the team had been standing for some time near the body. There were evidences of the fact that the horses had been tramping there. An examination of the body of the deceased disclosed that he had been shot in the head; his nose being shot off and his eyes shot out. The wound was apparently a shotgun wound inflicted with No. 4 shot. Very early the next morning shoe prints of human beings were found by .certain witnesses near the body. • Two shoe prints, one larger than the other, led to and from a little ravine and thence in the direction of the appellant’s house up to his orchard near his house. At that time the appellant had some renters living on his farm in a "little house a short distance from his house and between his house and the house of the deceased. On the 1st day of January, 1914, along in the afternoon of that day, persons living in the tenant house on Moody’s farm saw Tommie Moody, a boy 13 years old, and son of the appellant, and Alfred or Sammie Fitzhugh, a neighbor negro boy, about 14 years old, going from the direction of the appellant’s house in the direction of where the deceased was found. These parties saw that the Fitzhugh boy was carrying a shotgun at that time, but do not remember of seeing Tommie Moody carrying any weapon at all. On the evening of the 3d of January the appellant and these two boys were arrested and held in the jail at Chandler, the county seat. A few days later the Fitzhugh boy was released and turned over to his father, and on the way back home he confessed the crime to his father and uncle and told them that the defendant had sent his son, Tommie, and him (Fitzhugh) out to murder old man Rausin, and that he had furnished him (Fitzhugh) with a shotgun shell loaded with No. 4 shot with which to commit the act. The father of Fitzhugh immediately returned and delivered Sammie to the sheriff. Later Tommie Moody confessed his connection with the crime, testifying that it was committed in the manner as detailed by Fitzhugh. They testified substantially that Alfred (Sammie) Fitzhugh came to the defendant’s house on the afternoon of January 1st about 3 or 4 o’clock; that appellant and his son, Tommie, had been away from home a part of that day for the purpose of renting another farm; that the appellant invited Fitzhugh into his house, and a short time thereafter began to talk about the deceased, and demanded that Fitzhugh and his son, Tommie, go and kill the deceased. Tommie at that time was in the kitchen stacking the dinner dishes. His father brought him into the room where Fitzhugh was and told him what he wanted them to do. About that time Tommie looked out of the window and saw the deceased going from his home over into his woods pasture. He called his father’s attention to that fact, and immediately his father told them to go and kill Rausin. Fitzhugh had his shotgun with him, and the appellant told Tommie to give Fitzhugh the No. 4 shell, and for him (Tommie) to go along and take his gun and help kill Rausin. In compliance with said command these boys went directly to where the deceased was loading wood, and the Fitzhugh boy. shot the deceased in the forehead, and immediately thereafter Tommie Moody shot at the deceased, but the deceased was falling and Tommie’s shot went over his head. Thereafter the Fitzhugh boy went directly to his home, which was east of and within sight of the place where the homicide was committed. Tommie Moody went back home and immediately told his father what had happened. Tommie testifies that after .dark that evening his father said, “Well, I am going over to see whether Rausin is dead, and if he isn’t dead I’ll finish him,” and that his father took the shotgun and left the house, and that when he returned he, Tommie, was asleep; also that when he, Tommie, got home he said to his father, “I have done an awful dirty trick”; that his father replied, “Well, go on and finish up your chores and say nothing about it.” Tommie also testified that just before he and Fitzhugh separated after the killing he told. Fitzhugh not to say anything about it, or about the fact that his father had told them to kill Rausin. Tommie also testified that on one or two occasions previous, to the killing his father had attempted to get him to kill Rausin,- but that his nerve failed him.
    Harve Rausin, a cousin of the deceased, testified that a short time before the homicide, on a foggy morning, he was out by a haystack near the line of Moody’s and Rau-sin’s farms, and that Moody was out there with a shotgun. Harve Rausin, in addition, testified that after the first trial he had a conversation at the jail in Chandler with appellant about seeing him at thé haystack with the shotgun, and the appellant said in substance, “Yes, Harve; I was there; I wouldn’t have harmed a hair of your head; it was Old Bill that I was after.”
    There is evidence tending to show that there had been ill feeling between the appellant and the deceased for a great number of years; that the appellant had made expressions of ill will at various times., and had said on one or more occasions to certain witnesses that he ought to kill the deceased, and that he intended to shoot him into bug d,ust, etc.; that about a month before the homicide certain mules belonging to the appellant got into the deceased’s corn patch, and that the deceased impounded them and charged the appellant $1.50 as damages; that this action on the part of the deceased enraged the appellant very much, and on the second day after the killing appellant said to his tenant, Kelly: “That $1.50 Rausin charged me for those mules was the cause of his death.” There is also evidence in the record tending to show that on several occasions after the killing the appellant made contradictory statements regarding the homicide; also evidence to show that a short time prior to .the homicide the appellant and his son, Tommie, purchased some shotgun shells loaded with No. 4 shot. The testimony discloses that after these tracks were found leading from the body of the deceased the sheriff and some parties with him took the shoes of Moody and placed them in these tracks, and that his shoes fitted the larger tracks exactly.
    The defendant was first tried in Lincoln county, and a verdict of guilty was returned imposing the death penalty. A new trial was granted and the venue changed to Pottawatomie county. Upon the second trial a verdict of guilty was returned and punishment fixed at imprisonment for life. The appellant did not become a witness in his own behalf. He asks the reversal of this judgment because of numerous alleged errors, which will be discussed in the body of the opinion.

      F. A. Rittenhouse and E. A. Foster, for plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and Streeter Speakman, Co. Atty., for the State.
   MATSON, J.

(after stating the facts as above). It is alleged that the court erred in admitting testimony of Tommie Moody and Alfred (Sammie) Fitzhugh covering all their acts and statements at the time of the killing of J. W. Rausin before any other evidence was introduced on the part of the state to establish the fact that a conspiracy existed between these witnesses - and the appellant to kill the said Rausin. The witnesses Tommie Moody and Fitzhugh were accomplices. Under our statutes they were competent witnesses; the fact that they were accomplices going only to their credibility and requiring proof independent of their testimony and corroborative thereof which, tended to connect the appellant with the commission of the offense. There is no rule of law or decision in this state to the effect that ah' accomplice may not testify to the conspiracy or the facts forming a part of the res gestae. Our statutes simply provide that before a conviction can be had upon the testimony of an accomplice there must be corroboration as above indicated, and it is not necessary that such corroboration should be first introduced. The testimony, therefore, of Tommie Moody and Fitzhugh does not come within the scope of those decisions which hold that the declarations of a conspirator made to third persons in the absence of his coconspirator are not competent against the coconspirator until some independent evidence of the conspiracy is shown. The evidence of these witnesses is controlled by the statutes relating to accomplices, and the cases cited by counsel for plaintiff in error are not in point to support this contention.

But it is also contended that there was not sufficient corroboration -to justify a conviction. With this contention we are unable to agree. Independent of the direct testimony of Tommie Moody and Fitzhugh connecting the defendant with the commission of this crime, the record discloses a number of circumstances which, when considered together, in our opinion, tend also to connect the defendant with it. Standing alone, these independent facts and circumstances would not be sufficient to authorize a verdict of guilty, but under our statutes the corroboration of an accomplice does not have to be sufficient to establish the guilt of the defendant beyond a reasonable doubt. It is sufficient if it tends to connect the defendant with the commission of the offense. These independent facts and circumstances must go farther than the mere proof of the commission of the offense or proof of the circumstances surrounding its commission.

Counsel for the state have divided the corroborating testimony into four classes, viz.: First, footprints; second, admissions against interest; third, false and contradictory statements; fourth, expressions of ill -$ill, threats, and hostile acts toward the deceased — and have discussed these various subdivisions in the order above indicated.

The subdivisions above given appeár to correctly cover the classes of corroborative evidence adduced upon the trial.

First, as to the footprints:

Tommie Moody testified that after Sammie Fitzhugh and himself had shot the deceased he went immediately home, quoting' from his testimony as follows:

“* * * And I went on and done up the chores, and that night about 7 o’clock my father -put on his coat and got his gun and says, ‘Tommy, I am going to see if Rausin is dead,’ and he says, ‘If he ain’t dead I will finish him,’ and he went on out, and I was asleep when he came back.”

In corroboration of this statement of Tommie Moody that his father did go from his house the night after the homicide to the body of the deceased the state introduced the witnesses .Henry Griswold, G. R. Ellis, and 0. C. Burgess. The substance of the testimony of these witnesses is that the next morning after the body was found, very early in the morning, they went to where the body of the deceased had been found and found the footprints of human beings near that place leading to a little ravine, and following the ravine in the direction of the appellant’s house and up to the appellant’s premises, and near to his house; that these tracks were then marked so as to be identified; that the next day the witness Burgess, together with others who were present, including the witness Kelly, took the shoes worn by the defendant and placed them in these tracks which had theretofore been marked, and that the shoes of the appellant fitted exactly into the larger tracks; that after the first trial of the appellant, while he was still in jail awaiting a second trial, the appellant said to Burgess that his testimony regarding the tracks was correct, but that these tracks were not his tracks, that they were the tracks of Will Kelly, and that Will Kelly had made them there that night, that he had seen Will Kelly go straight in that direction, and that he. afterwards came back from there. But the evidence shows that Will Kelly had placed his shoes in the tracks, and that the tracks found were too large for Kelly’s shoes, and also Kelly testified that. he had not been in that direction the afternoon or the evening of the homicide. Now, it is clear that the úncontradicted testimony of Tommie Moody that his father told him to go over there and murder Ráusin, together with his statement that after he came back and told his father that he had murdered him, and his further statement that his father told him that he was going over to the scene of the homicide to see whether Rausin was still alive, and, if not, he would finish him, taken in connection with the fact that tracks were discovered leading up to and away from the scene of the homicide, which tracks fitted exactly the shoes of the appellant, corroborate Tommie Moody in his statement that his father went over there to see if Rausin was dead, and, if not, to finish him. It also corroborates his statement that his father had knowledge of the commission of the crime, or else he would not have gone to the scene of it, and, standing as it does without further explanation, tends to connect appellant with its commission. This circumstance indicates clearly that appellant visited the scene of the homicide either at the time it was committed or subsequent thereto.

If after the crime was committed and after his son had confessed to its commission, if appellant be innocent, this visit must have been for the purpose of ascertaining whether or not his son was telling the truth, and, if not connected with the commission of the crime in any way, it is unnecessary for this court to indicate what an innocent man would have done under such circumstances. And it is well established that the evidence corroborating an accomplice and tending to connect the defendant with ' the commission of the crime need not be direct, but may be circumstantial only. State v. Jones, 115 Iowa, 113, 88 N. W. 196; Jefferson v. State, 110 Ala. 89, 20 South. 434; People v. Mayhew, 150 N. Y. 346, 44 N. E. 971. Indeed, if direct evidence alone were required, it would be practically impossible in 90 per cent, of the cases to corroborate an accomplice, and many persons who aid and abet in crimes secretly committed would escape punishment. In cases where circumstantial evidence is relied upon for a conviction the similarity of footprints found at or near the scene of the homicide to those of the accused or their correspondence to his shoes has been permitted .to be shown. Hodge v. State, 97 Ala. 37, 12 South. 164, 38 Am. St. Rep. 145; Jenkins v. State, 45 Tex. Cr. R. 173, 75 S. W. 312; Davis v. State, 126 Ala. 44, 28 South. 617. And why should such evidence be permitted unless tending to connect the accused with the commission of the offense?

If in cases where circumstantial evidence is relied upon for a conviction such footprints may be proven, with what reason may it be argued that the proof of such circumstances does not tend to connect the. accused with the commission of the offense when corroborative of the testimony of an accomplice? In either event such evidence is competent only because it tends to connect the defendant with the commission of the offense.

Second, admissions against interest:

The witness Will Kelly testified as follows:

“Q. Did you have a conversation with Moody Friday evening about Rausin, Friday after New Year’s? A. Friday evening as I went up to feed my hogs, after we heard about the killing; it was late, pretty close to night, and I went up to feed my hogs, and as I was going by he says, ‘Will, that dollar and a half was the occasion of old man Rausin’s being dead.’ Q. You testified awhile ago that Rausin put up your and Mr. Moody’s mules or horses? A. Yes, sir; that is right. Q. State if you know, how much Rausin charged Moody for his horses? A. A dollar and a half.”

The foregoing statement of the accused indicates that immediately after the crime became known he was acquainted with the motive underlying ■ its commission, and, taken into .connection with the other testimony in the record that the deceased and the accused had a difficulty over the impounding of the accused’s mules a short time prior to the commission of the homicide, the remark made to Kelly and tending to corroborate the testimony of the accomplices was a circumstance tending to establish a motive for the commission of the offense, and while the proof of motive is not indispensable in order to prove guilt, yet, where crimes are committed secretly and a motive is shown, any testimony that tends to prove a motive on the part of the accused .for committing the crime is competent as a circumstance tending to connect him with it.

Also the witness O. C. Burgess testified regarding a conversation betwéen Harve Rausin and the accused after the first trial as follows:

“I unlocked the jail door and was standing with my hand on the door, and Mr. Harve Rausin came up and was talking to Mr. Moody, and he said, ‘Moody, I don’t want you to hold any grouch against me.’ He says, ‘It is all over now;’ and he says, ‘I stated that you were there at the haystack with a shotgun,’ and he says, ‘Is that so?’ and Moody says, ‘It is so, Harve.’ (Defendant objects. Overruled. Exception.) He says, ‘It- is so, Harve; I wouldn’t have harmed a hair on your head, Harve; it was Old Bill I was after.’ ”

This testimony, left as it was, unexplained and un-contradicted, tended to establish the fact that' prior to the homicide the accused was carrying a shotgun near the premises of the - deceased lying, in wait .for him, and indicated a desire on the part of the accused to do the deceased some great bodily harm.

In the conversation with Harve. Rausin in the presence of Burgess the accused admitted that at the time he was lying in wait at the haystack with his shotgun, on the foggy morning between Christmas and New Year’s, he was after “Old Bill.”

Was that statement made? Rausin and Burgess both testify that it was. As witnesses neither of them was impeached or contradicted, and if it was true that the accused “was after Old Bill” with a shotgun between Christmas and New Year’s, that fact corroborates Tommie Moody’s and Fitzhugh’s testimony to the effect that the accused directed them to shoot the deceased on New Year’s Day. While not directly connecting the accused with the killing, it was a circumstance tending to prove that just a few days prior to the homicide the accused desired the deceased out of his way. It indicated a design on the part of the accused to kill deceased. This admission of the accused that he was lying in wait at that time with a deadly. weapon for the deceased is. a circumstance properly admitted in evidence as .tending strongly to connect the accused with the commission of the homicide which occurred within a short time thereafter. Admissions similar to this have been held to be sufficient corroboration of an accomplice. People v. Cleveland, 49 Cal. 577; People v. Davis, 135 Cal. 162, 67 Pac. 59; State v. Hennessy, 55 Iowa, 299, 7 N. W. 641.

The testimony of Harve.Rausin that the accused was lying in wait with the shotgun shortly before the homicide and the admission afterwards made by the accused that at that time he was “after Old Bill” (the deceased) indicates an intent on the part of the accused to unlawfully take the life of the deceased at that time.

A criminal intent being a material element' of the crime charged, corroboration of an accomplice on such element by independent evidence has been held to bé sufficient. People v. Davis, 21 Wend. (N. Y.) 309; People v. Josselyn, 39 Cal. 393.

“Proof of a motive and intent to commit a crime which there was evidence to show had been committed * * * would legitimately tend to strengthen a belief in the statement of the accomplice that they had committed it.” (Com. v. Chase, 147 Mass. 597, 18 N. E. 565.)

Third, contradictory statements:

Accused made contradictory statements ' concerning the tracks leading away from the place where the body of the deceased was found to the premises of the accused. The accused told the witness Newby shortly after he was arrested that he was satisfied he could name the party who did the killing, and indicated Alfred (Sammie) Fitzhugh. Later on during the same day the accused in a conversation with the sheriff (Buzzi) made a different statement conflicting with the statement made to Newby;

The sheriff testified as follows:

“A. He said that if we would get a big negro boy by the name of Asberry that we would have the right man; that he had seen him come up by his place that evening while he was fixing some shafts; that he seemed to be excited and was in a hurry, and walking very fast. Q. Did he say what direction he came from? A. Yes; he said that he came from the north and went right on south from his place towards the road. Q. Anything said about the size of his shoes? A. He said he wore the same size shoe, or about the same size of his, and would make a track about like his.”

After the first trial, and some time during the month of September, the accused had a conversation with the witness Burgess with reference to these tracks in which he said:

“A. Moody said that what I swore about thé tracks was true; that the tracks were there, and they were Bill Kelly’s tracks; that he saw Bill Kelly go from there straight in that direction; and that he came back after-wards from there. Q. Did he say anything further about it? A. No, sir. Q. Now what did you testify? (Objection. Overruled. Exception.) A. Do you mean in the former trial? Q. Yes, sir. A. I had testified that these shoes fitted the tracks. Q. State whether or not your testimony then was the same as now. (Objection. Overruled. Exception.) A. I think it is.”

Burgess also testified that Will Kelly was with him when he measured the tracks leading from the body, and that Kelly put his shoes into those tracks, and that the tracks were too long for Kelly’s shoes. Will Kelly testified that he was at home on the afternoon of New Year’s Day, and that he did not go in the direction of the place where the body was found that afternoon or evening. There was also evidence in the record that the negro Asberry had left that community on a train about noon of New Year’s Day. The accused evidently realized the importance of the necessity to explain away these tracks which were found at and near the scene of this homicide, and the fact that he made contradictory statements concerning these tracks, which statements were after-wards shown to be false, in our opinion was competent evidence to go to the jury as tending to corroborate the accomplices and tending to connect him with the.offense.

Fourth, expressions of ill will and threats:

The record also shows certain expressions of ill will and threats made by the accused toward the deceased a' short time before this homicide, such as “he would shoot old man Rausin into-bug dust, if it was the-last .thing he did,” to the witness Berry, and again a similar expression to the witness Kelly on the morning that' the homicide was committed.

In the case of Roberts v. State, 96 Ark. 58, 131 S. W. 60, it was held:

“On a trial charging accused with being an acces-' sory before the fact to murder, the testimony of a witness that he shot decedent and was hired to do so by accused, who furnished the weapon, is sufficiently corroborated by proof of the ill will of accused towards decedent and of threats by accused to do decedent harm.”

Other cases to similar effect: People v. McLean, 84 Cal. 480, 24 Pac. 32; People v. Martin, 19 Cal. App. 295, 125 Pac. 919; Commonwealth v. Chase, 147 Mass. 597, 18 N. E. 565.

We reach the conclusion, therefore, that the testimony of the accomplices in this case was sufficiently corroborated by independent evidence tending to connect the accused with the commission of the offense. '

Nor do we believe that the court abused its discretion in refusing to permit the witness Sammie Fitz-hugh to be recalled for further cross-examination. The record discloses that this witness was very thoroughly cross-examined on all phases of the case,' and it is not shown that it was desired to cross-examine him on any matter not already touched upon; it appearing that counsel for accused merely desired to ■ further cross-examine the witness relative to the conversation he had with his father and uncle when, he first disclosed the accused’s connection with the offense. This matter was thoroughly -gone into on cross-examination already had, and had counsel desired to impeach the witness relative thereto sufficient ground had been laid to show by other witnesses that he had made false or other contradictory statements concerning what he had said to his father and uncle. Counsel for defendant not only cross-examined this witness, but had already recross-examined him. Where there is no showing made to the court that certain material matter could be elicited by further, cross-examination, this court cannot say that the trial court abused its discretion in refusing to permit further cross-examination under such circumstances.

It is also contended' that the county attorney committed reversible error in his closing argument to the jury in that he referred' to the defendant’s failure to take the witness stand in his own behalf. The argument of the county attorney was not taken by the court stenographer. During the course of the argument counsel for the defendant made objection and took exception to certain remarks, and at the time this objection was made a controversy arose between counsel for defendant, the county attorney, and the court as to .the exact remarks made. On the next day, in order to settle the matter, the court made a finding of the facts occurring, which finding is embodied in the record, and is as follows:

“Statement of the Court..
“Be it. remembered that on December 10, 1914, in the trial of the cause of the State of Oklahoma v. Samuel Moody, during the closing argument of the county attorney, Streeter Speakman, the statement in said argument to which the attorneys • for the defendant excepted as shown by the record was as follows: The said county attorney in answer to an argument made by the counsel for the defendant and addressed directly to the county attorney, he being asked in said argument of defendant’s counsel why he had not brought the father of Sam Fitz-hugh here to testify, that Sam had told him (Sam’s father) that the defendant sent him to kill Rausin, and used the following language: 'Sam Fitzhugh has testified before you that he told his father this story, and that testimony is undenied.’ And immediately following this, in reply to the argument of the defendant’s counsel wherein said counsel said that defendant denied to witness Newby that he was guilty, the county attorney said and used the following language: 'Counsel for the defendant in their argument stated that the defendant had denied to Mr. Newby that he was guilty. I do not blame him for denying it. If I had placed upon the brow of my son the crimson brand of murder, I would deny it; I would deny it; I would deny it.’ Signed and made a matter of record in the case in open court this the 11th day of December, 1914, the defendant being present in person and by counsel.
“Frank Mathews, Presiding District Judge.”

Counsel for defendant had the right to "demand that the argument of the county attorney be taken down in shorthand, and the refusal of the court to permit the same would have been reversible error. Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005; Lamm v. State, 4 Okla. Cr. 641, 111 Pac. 1002. Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full, this court is bound by the finding of the trial court recited in the record as Ub what occurred. Buck v. Territory, 1 Okla. Cr. 517, 98 Pac. 1017; State, v. Hasty, 121 Iowa, 507, 96 N. W. 1115.

The record discloses that the argument of the county attorney was made in reply to certain argument of counsel for defendant and addressed directly to the county attorney. And it is contended that the argument of the county attorney replying thereto in answer to the inquiry, “why he had not brought the father of Sam Fitz-hugh here to testify that Sam had told him (Sam’s father) that the defendant sent him to kill Rausin,” wherein the county attorney said, “Sam Fitzhugh has testified before you that he told his father this story, and that testimony is undenied,” was an indirect reference to the failure of the defendant to take the witness stand. We have examined the testimony of Sam Fitzhugh with reference to this conversation, and find that the only parties present at the time were Sam’s father and uncle; the defendant at that time was in jail at Chandler. Clearly the defendant could not have denied this testimony had he taken the witness stand, and it would be an imputation of ignorance to the jury to hold that the answer of the county attorney to this argument of counsel under the circumstances of this case had reference to the failure of the defendant to testify, or in any way misled the jury.

Section 5881, Rev. Laws 1910, provides:

“Defendant a Competent Witness. — In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

This court has held that the foregoing statute is mandatory, and any comment either direct or indirect by counsel on the failure of the defendant to testify is ground for new trial. The damage done by such a remark cannot be cured by its withdrawal from consideration by the jury. The statute being mandatory, and in view of the strict construction given to it in favor of the defendant, in order to constitute reversible error, the remarks made must either directly or indirectly constitute a comment such as is prohibited by the statute. And, if in this case the evidence showed that the defendant was present and could have denied the statements made by Sammie Fitzhugh in his disclosures to his father and uncle, we would unhesitatingly reverse this judgment.

Counsel for defendant have failed to cite a single authority which holds that a statement of the county attorney to the effect that certain testimony is undenied amounts to indirect reference to the defendant’s failure to testify where the defendant was not present and could not under the circumstances have denied the fact had he taken the witness stand. The argument therefore, in our opinion, was not erroneous.

As to the statement of the county attorney: “Counsel for the defendant in their argument stated that the defendant had denied to Mr. Newby that he is guilty. I do not blame him for denying it. If I had placed upon the brow of my son a crimson brand of murder, I would deny it; I would deny it; I would deny it” — that seems also to have been elicited by argument of defendant’s counsel wherein said counsel stated that defendant denied' to the witness Newby that he was guilty.

The cross-examination of Mr. Newby discloses the following:

“Q. Well, did Moody say that the Fitzhugh boy was running around there that day with a gun? A. Yes; he said he was continually hunting around there, and that he was out there that day with a gun, but he didn’t say for them to find the Fitzhugh boy. He said that he could name the party who did the killing, and named this boy that lived east of the dead man. Q. And he told you that he had run him off his place? A. Who? Q. Moody had run him off his place? A. I am not sure about that.- He said that Mr. Rausin, the dead man, didn’t like to have any hunting on his place, and that the boy was continually running around, there with a gun hunting. He said that if they would arrest the Fitzhugh boy he was satisfied he would be the party who did the killing. He wanted them to telephone out to Mr. Buzzi and Mr. Speakman, who were then put holding an inquest, as I understand it. Q. Wanted them to phone out and have the Fitzhugh boy arrested? A. Yes. Q. Mr. Moody said he didn’t have anything to dp with it, d'dn’t he? A. Yes.”

Counsel for defendant saw fit to make the statement that defendant had denied his guilt to Newby. In answer to this argument the county attorney in effect stated that there was nothing unusual in the fact that he had denied his guilt; that under the circumstances any man would deny his guilt. The record discloses that this argument was not a comment upon the failure of the defendant to testify, but was a- comment upon certain evidence introduced in the case. It was made in reply to argument along similar lines by counsel for the defendant. If this argument is to be held reversible error, then all argument of a prosecuting attorney must resolve itself into a mere statement of facts. He would be stepping on dangerous ground at any time he undertook to answer the argument of opposing counsel. And, where opposing counsel invite reply as shown by the record in this case, and such reply may sting, this court cannot say that it is reversible error such as would authorize the granting of a new trial unless from the record itself it is made clearly to appear that the argument complained of constitutes an infringement of the defendant’s statutory right not' to testify. And, where the argument, when considered and construed in reference to the evidence, shows clearly that the county attorney was confining his argument to the evidence introduced and making certain comments thereon, especially will this court not reverse the judgment on this ground when these comments legitimately followed from the argument of the defendant’s counsel and in answer thereto.

Misconduct of the court in that the trial judge in the absence of counsel for defendant instructed the bailiff in charge of the jury to inform the jury to cease deliberating upon their verdict until the court had delivered further instructions is alleged to be prejudicial error. The record on this question is as follows:

“The court wishes to state in regard to the recalling of the jury and giving the instruction requested by the defendant that when this instruction was first presented to the court I was of the opinion that it should not be given, and gave a similar one, drawn by myself. Soon after the jury had retired to deliberate upon their verdict I came to the conclusion that I was in error and should have given the instruction, so within 30 minutes after the jury had retired I went to the door of the jury room and requested one of the bailiffs in charge of the jury to state to them that it was my order that they should not deliberate further on their verdict until the coming into court the next morning, when I would desire to instruct them further. This order was communicated to the jury by one of the bailiffs in my hearing, ■ and I directed both the bailiffs to at once go into the jury room where the jury was and see that they did not discuss the case any further, and go with them to their room where they retired and to have them in court the next morning. I also went in search for counsel for the defendant and went to a hotel, and the proprietor informed me, at the place that— I couldn’t find them, and upon the convening of court the next morning I had the jury brought into the courtroom and withdrew from them the special instruction that I had given them the preceding evening, and gave to the jury the instruction requested by the defendant the evening preceding, and the record contains every word said by me or any one else while I was withdrawing the instruction that I had given them and giving the instruction requested by the defendant’s counsel. I wish to state further that the jury retired and deliberated for more than eight hours before they returned a verdict into court.”

■ This assignment of error was not directly submitted to the trial court in the motion for a new trial.

Section 5906, Rev. Laws 1910, provides:

“.After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without o retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

It appears from the record that all that was said by the bailiff to the jury was “by order of the court” and in the presence of the judge. Nothing occurred that in any way tended to prejudice the substantial rights of the defendant, and it was clearly discretionary with the trial judge to recall the jury from its deliberations to give additional instructions or to correct the instructions already given, the defendant being present. McClary v. Stull, 44 Neb. 175, 62 N. W. 501; Davis v. State, 122 Ga. 564, 50 S. E. 376; Patterson v. State, 122 Ga. 587, 50 S. E. 489; State v. Tripp, 113 Iowa, 698, 84 N. W. 546; People v. Shuler, 142 Mich. 161, 98 N. W. 986; Hardesty v. State, 95 Neb. 839, 146 N. W. 1007.

Where such additional instructions are given in the-absence of defendant’s counsel, the trial court should, on its own motion, allow an exception thereto unless the additional instruction or instructions were such as had theretofore, been requested by defendant’s counsel. It. appears from the record in this case that the additional instruction here given was requested by counsel for defendant during the' course of the trial, and that the giving of same is not alleged to be error.

In view of the fact that the appellant was convicted of the crime of murder, based to a large extent on the-, testimony of the accomplices, we have carefully examined this record for prejudicial errors, and were the court, convinced that such errors existed, this judgment of conviction would be reversed.

After a careful and full consideration of the record,, however, we are convinced that the appellant had a fair and impartial trial according to the forms of law, and that the errors complained of and presented in brief of counsel for the appellant were not such as would authorize this court to reverse the judgment. _

For the reasons given in this opinion, the judgment of the district court of Pottawatomie county is affirmed-

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    JOHN CRITTENDEN v. STATE.
    No. A-2444.
    Opinion Filed May 5, 1917.
    (164 Pac. 675.)

      TRIAL — Instruction—Theory of Defendant. “On trial for larceny, where circumstantial evidence is relied on for a conviction, and there is a direct conflict in the testimony, it is error for the trial court to fail and xefuse to instruct on the law applicable to a theory of the defense which the evidence tends to support, when the defendant requests it.”

      Appeal from District Court, Choctaw County; A. Eddleman, Assigned Judge.

    John Crittenden was convicted of the larceny of live stock and he brings error.
    Reversed.

      Richardson & Warren, for plaintiff in error.

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

This is an appeal from the district ■court of Choctaw county. The appellant, John Critten-den, was convicted at the October, 1914, term of said court of the crime of larceny of live stock, and his punishment fixed at two years in the penitentiary. From this judgment of conviction he appeals to this court, and asks a reversal of the same for' numerous reasons, among which is the failure of the trial court to give an affirmative instruction on the law relative to the defense interposed after such an instruction had been ■ requested.

The state relied for a conviction very largely upon circumstantial evidence. There was proof that the steer was stolen, and that a short time thereafter the appellant and his codefendant, Julius Garland, were seen driving the steer to a slaughterhouse several miles from the place where the alleged taking occurred. The appellant claimed that he, in good faith, purchased this steer from, his codefendant, Garland, that he had no knowledge that the steer had been previously stolen, and, in corroboration of the appellant, Garland testified that he sold the appellant the steer for $35, and that the appellant gave him a check signed by one Raines, a butcher at Ft. Towson, Okla. Raines testified that he had authorized the appellant to purchase some butcher cattle for him, and .that the appellant brought this steer and a two-year-old heifer to him, and that the appellant had given a check signing his (Raines’) name to it to Garland for $35 in payment for the steer, but that he (Raines) thought the price was too high and refused to give more than $30.1 Garland testified that he after-wards agreed to take the $30 for the steer, and another check signed by Raines was given to Garland for that amount. It is also shown by the testimony of a woman by the name of Stanley that on the same day that the appellant claims to have purchased this steer for Raines he also purchased a two-year-old heifer from her, giving a check signed by Raines, which was also turned down, but which Raines afterwards made good. It appears, therefore, that the appellant presented a defense supported by evidence to the effect that he came into possession of this steer by purchasing the same in good faith, believing that Garland had a right to sell it, and at the time he made the purchase he was acting as the agent for Raines, and, as hereinbefore indicated, there Was evidence corroborating the testimony of the appellant which, if believed, when taken in connection with his testimony, would authorize his acquittal.

Upon the trial counsel for the defendant requested the following instruction, which was refused and an exception to the action of the court in refusing to give the same properly preserved at the time, and urged in the motion for new trial and in the petition in error:

“The jury is instructed that, if you believe from the evidence, or have a reasonable doubt thereof, that the defendant John Crittenden bought the steer in controversy in good faith írom Julius Garland, not knowing the same had been stolen, then in that event you will acquit the defendant John Crittenden.”

'Che trial court did not give any instructions in any way covering the defense relied upon. In our opinion, therefore, the refusal to give this requested' instruction, or one affirmatively covering the defense interposed, is reversible error.

“The defendant * * - * has a right to have .a clear and affirmative instruction given to the jury applicable to his .testimony, based upon the hypothesis that it is true, and when such testimony affects a material issue in the case.” (Payton v. State, 4 Okla. Cr. 316, 111 Pac. 666; McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735; State v. Hill, 63 Or. 451, 128 Pac. 444; Harris v. State, 11 Okla. Cr. 412, 146 Pac. 1086.)

In the latter case this court held:

“On a trial for larceny, where circumstantial evidence alone is relied on for a conviction, and there is a direct conflict in the testimony, it is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support, when the defendant requests it.”

It may also be well to state that on the material element of the offense that the property was taken without the consent of the owner the proof was very slight in support thereof. Upon a second trial we suggest that as to this element there should be more convincing evidence than that disclosed by this record.

For the reason that the court failed to give an affirmative instruction covering the defendant’s testimony based on the hypothesis that it was true when requested to do so,- the judgment is reversed, and the cause remanded for further proceeding. ,

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


author: ARMSTRONG, J.

text:
    LAFAYETTE R. HORN v. STATE.
    No. A-2486.
    Opinion Filed May 5, 1917.
    (164 Pac. 683.)
    1. APPEAL AND ERROR — Question for Jury. In the trial of a criminal case, questions of fact involving the guilt or innocence of the accused are always for the jury, and when, on appeal, the irecord discloses facts which would have been sufficient either to warrant a verdict of acquittal or to support a verdict of guilty, the finding of the jury will not be disturbed. In such cases only errors of law will be reviewed.
    2. TRIAL — Requested Instructions — Given Instructions. When the instructions of the court properly submit all the issues in the case fairly and impartially, it is not necessary to submit additional requested instructions emphasizing some peculiar phase of the case.
    3. TRIAL — Keeping Jury Together. In a capital ease, the jury should always be placed in charge of a sworn bailiff and kept together, upon the reasonable request of counsel for either the state or the defendant. It is discretionary with the court, however, to permit the jury to separate at any time before the cause is finally submitted when no such request is made.
    4. JURY — Disqualification—Expression of Opinion — Statute. (a) Section 5861, Rev. Laws 1910, 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 he 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.”
    (b) Following the rule provided in this section, jurors’ statements on voir dire examined and the ruling of the eourt admitting them to the panel upheld, upon the ground that they were duly qualified under the law- to sit in the instant case.
    5. CASE DISTINGUISHED. The doctrine in Turner v. State, 4 Okla. Or. 105, 111 Pac. 988, Scribner v. State, 3 Okla. Cr. 605, 108 Pac. 422, 35 L. K. A. (N. S.) 985, and Tegeler v. State, 9 Okla. Or. 149, 130 Pac. 1164, distinguished from the doctrine in Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, followed in the case at bar.

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    Lafayette It. Horn was convicted of manslaughter in the first degree, and he brings error.
    Affirmed.

      Frye & Frye and W. A. Carlile, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Lafayette R. Horn, was tried at the December, 1914, term of the district court of Sequoyah county, upon an information charging him with the murder of Isaac Christie, and convicted of manslaughter in the first degree. His punishment was fixed at imprisonment in the state penitentiary for a term of 20 years.

• The homicide occurred on a public highway near the house of the plaintiff in error on the 13th day of J une, 1914. It appears that there had been ill feeling existing between the plaintiff in error and ■ the deceased for some time. The plaintiff in error admitted the killing, and undertook to justify the same on the ground of self-defense. Proof was introduced on behalf of the state tending to show that the deceased was shot from his horse while quietly riding down the public road molesting no one; that the plaintiff in error fired on deceased out of a desire for revenge and without provocation. Proof was offered on behalf of the plaintiff in error tending to show that the deceased had gone into the field where the plaintiff in error was at work and had run him out of the field on the morning of the homicide; that he was passing along the road, and upon discovering plaintiff in error between his house and barn got off his horse and assaulted him with a knife, without provocation. Plaintiff in error also offered testimony tending to show that deceased was a man of violent and dangerous disposition. He also offered testimony that he,, the plaintiff in error, was a peaceable, law-abiding citizen, bearing a good reputation as an upright citizen in the neighborhood in which he lived. Numerous witnesses were offered on both propositions.. In rebuttal, the state introduced witnesses on each propo- ' sition, the testimony of whom tended to establish the fact that Christie was a peaceable, law-abiding man, and that the plaintiff in' error was an overbearing, dangerous man, and bore a bad reputation for being a peaceable, law-abiding citizen in the community in which he lived.

A careful consideration of the evidence offered by each side discloses clearly that the question of fact was ■ solely for the jury, and that a verdict of acquittal could not have been criticized on the record' before us. The verdict of guilty was equally within the province of the jury. It therefore follows that unless there is substantial error of law, no relief can be obtained upon appeal to this court.

The first assignment of error urged in the brief is based upon the proposition that the court erred in refusing to give the following requested instructions:

“You are further instructed that where the defendant, without fault on his part, at his own home or place, is attacked by the deceased in such a manner" or under such circumstances as to furnish reasonable grounds, for apprehending a design to take his life or to do him some great bodily harm, and there is a reasonable ground for believing the danger imminent, and that such design will-be accomplished, and the defendant so assaulted has reasonable grounds to believe and does believe such danger is imminent, he may act upon appearances, and without retreating kill the deceased. And if you should so find or have reasonable doubt therefor, you should resolve that doubt in favor of the defendant and acquit him.”

In lieu of this instruction, the court gave the following :

“Gentlemen of the jury, you are further instructed that where the evidence shows- beyond a reasonable doubt that the homicide was committed by the defendant; and the defendant seeks to avoid the responsibility for the killing on .the grounds of self-defense, you are instructed that the defendant had a right to act in his own necessary self-defense upon a reasonable apprehension of danger, as viewed from the defendant’s standpoint, although he may have been mistaken as to the actual extent of the danger, nevertheless, he would have a right to protect his person from great bodily harm or injury even to taking the life of the assailant, if it reasonably" appears by acts or by words coupled with the acts of the person killed that it was the purpose and intent of such person to do the defendant great bodily harm or injury as the said acts or surrounding circumstances would reasonably appear, whether real or. apparent, to the said defendant at the time of the homicide. Therefore, if you believe from the evidence that the said L. R. Horn intentionally shot and killed the said Isaac Christie, and further believe that at the time of so doing the deceased was in the' act of making or about to make upon him an attack, wh,ich from the manner and character thereof, together with the' weapons used or attempted to be used, if any, caused the defendant to have a reasonable expectation of fear of death or serious bodily injury at the hands of deceased as viewed from the defendant’s standpoint at the time of the killing,’ and- acting under such reasonable expectation or fear of death or serious bodily harm he intentionally shot and killed the said Isaac Christie, then you will acquit him, or if there is a reasonable doubt in your minds thereof, you will' resolve that doubt in his favor and acquit him.”

And followed the same by ■ instruction No. 15, which is as follows: 1

“You are further instructed that when the taking of a life is sought to be justified on the grounds of self-defense it is not incumbent upon the accused to satisfy the jury that the killing was justifiable, but if the evidence on that question is sufficient to raise a reasonable doubt in the minds of the jury as to whether the defendant was justifiable, then the defendant is entitled to an acquittal, and you should so say by your verdict.”

As applied to the facts disclosed by the record, these instructions fully cover the issues submitted in the case, and there is no prejudicial error reasonably apparent.

The next assignment urged in the brief is based upon the proposition that the court permitted the jury to separate before they had been impaneled and sworn and accepted in the trial of the case. Section 5899, Rev. Laws 1910, provides:

“The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of. the court, be permitted to separate, or to be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to 'speak to or communicate with .them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next • meeting thereof.”

The record does not disclose that counsel for the plaintiff in error asked the court to put the jury in charge of the bailiff at all times; nor does the record indicate that counsel made any complaint to the court at any time that there was any unfairness likely to result to the plaintiff in error on account of the separation of the jury before the cause was submitted. They simply reserved an exception to the order of the court permitting the jury to separate. There is no doubt but that the court would have placed the jury in charge of a sworn bailiff and kept them together if counsel had suggested the likelihood of any prejudicial results to the rights of. his client.

It is the duty of counsel to call the atention of the court to reasons why a separation should not .be permitted if there is any reason why it should not be permitted. Unless this is done, it will be presumed that the trial court properly exercised the judicial discretion vested in him as provided by explicit statutory law. Of course a different state of the case would be presented should a record disclose conduct on the part of any juror, any witness, or any individual, which is calculated to influence any member of a panel selected, but in this record there is nothing to indicate that anything irregular, occurred, and no complaint on this score was made. This proposition has been discussed in this jurisdiction in many cases. Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163; Sample v. State, 3 Okla. Cr. 432, 106 Pac. 557 Chance v. State, 5 Okla. Cr. 194, 113 Pac. 996; Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657; Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185, and numerous others.

It has been uniformly held by this court and its predecessor that in felony cases before a case is finally submitted it is within the discretion of the trial court to permit the jury to separate. There is no doubt but that the trial court should exercise sound judicial discretion in a capital case by granting the request of either party to place the jury in charge of a sworn officer during the progress of the trial. This must be done after the case is submitted to the jury. The presumption of law is that the courts and the juries perform their duty in accordance with the oaths which they have taken, and that presumption is only overcome by proof to the contrary. It is incumbent upon the defendant who complains of the separation of the jury before the case is finally submitted to affirmatively establish that by reason of *the separation he was denied a fair and impartial trial; that his substantial rights were prejudiced thereby. In the case at bar the record is silent on this point. It is clear that the lawmaking power of this state intended that the mere separation of the jury during the numerous and necessary adjournments incidental to a criminal trial should not result in delaying or defeating the ends of justice when there is not the slightest presumption, or even probability, that injustice resulted.. The statutes above set forth and the opinions of this court construing the same amply safeguard the purity of jury trials. When the separation of a jury "is objectionable, counsel should apply to the court for an order placing the jury in charge of a bailiff setting forth valid reasons therefor, and if the order is denied, the question arising thereon would present a different phase from that here presented.

The only other error assigned which is entitled to consideration is based upon the proposition that the court erred in overruling the defendant’s challenge for cause to three jurors who stated in their voir dire examination that they had formed opinions as to the guilt or innocence of the defendant from reading newspapers and from common rumor. It appears that the jurors in question had heard the case discussed, and that they had read newspaper accounts of the homicide; that they had not discussed the case with any one known to be a witness; that from the time they heard of the purported facts up to the time they were examined on their voir dire. they had entertained an opinion as to the guilt or innocence of the defendant; that the information they got was all rumor or talk of the community. Each one said that upon hearing the testimony he could and would decide the cause upon its merits fairly and impartially without regard to any opinion that he might have previously formed. Counsel in their examinations failed to draw out any suggestions that the jurors had formed opinions hostile to the interests of their client, or that any of them maintained at the time of the examination, or any time prior thereto, any ill will or hostility towards him. There is nothing to indicate by word or suggestion of any character the leaning of any of thte jurors towards the side of the state or that of the defense. Section 5861, Eev. Laws 1910, provides as follows:

“In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but 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. The challenge may be oral, but must be entered upon the minutes of the court.”

This statute exists in New York, California, and a number of other states. It has been considered and construed in all of these states, as well as our own, in a long line of decisions. As far back as the Bradford Case in 2 Okla. 230, 37 Pac. 1062, the Supreme Court of Oklahoma Territory, discussing this provision, said:

“Under this section the court must be satisfied that the juror will act fairly and impartially, and in passing upon this question he must act judicially on the facts before him, and the Conduct and appearance of the juror; his manner and apparent candor' or impartiality are all to be considered by the-court together with- his actions •in determining his. fitness as a juro#, ,?■ * A .very large discretion . is vested . in. the court,.-in determining,, the competency and qualifications' óf jurors, and its action should never be disturbed ■ by an appellate court, unless an abuse of such;:discretion'is clearly- apparent;*’ • ' " - 1

In Huntley v. Territory, 7 Okla. 66, 54 Pac. 316, the same statute was • considered by'the territorial court, and in the opinion it "is-' said :

“The information: ariá. expression. of ~an opinion is not alone the test of'A "juror’s' competency, but tlié na-~ ture of the opinion may be. inquired- into, and, if found to be only a transitory. inclination of mind, it is not a disqualifying opinion. To work a disqualification, there must be an abiding bias in the mind, caused by substantial facts in the case, in the existence of; which the juror believes; an opinion upon the merits of the case upon the guilt or innocence of the accused of the charge laid in the indictment, upon the evidence substantially asn expected to be presented on trial.”

This court in the case of Johnson v. State, 1 Okla. Cr. 344, 97 Pac. 1068, 18 Ann. Cas. 300, considered the same provision, and in that opinion said:

“The trial court should resolve all doubts upon this matter in favor of the defendant. Upon the other hand, when no personal, class, or race bias or prejudice appears to exist in the mind of the juror against the defendant, but it does appear that from rumor, or reading the public press, or from notoriety, the juror has an opinion as to the guilt of the defendant, but that such opinion will not combat the testimony or resist its force, and the court is satisfied that the juror can and will lay this opinion aside, and base his verdict alone upon the testimohy of the witnesses and the instructions of the court, then the juror is competent. To our minds this is the only rational construction which can be placed upon our statute.”

In Jones v. State, 8 Okla. Cr. 582, 129 Pac. 449, we discussed the same proposition, and among other things said:

“Two of the jurors, when examined on their voir dire, did state that they had received impressions about the case from what they had heard, but that they had not talked to any witnesses in the case; that what they had heard was a mere matter of rumor and would not in any manner influence them in considering the evidence; that they could and would, if taken on the jury, disregard all such impressions and be- governed alone by the testimony of the witnesses and the charge of the court in making up their verdict. Before a juror is disqualified on account of impressions he may have with reference to a case, it must appear that he has such an opinion as will combat the evidence and resist its force.”

In Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, the same provision was considered, and in that opinion weP said :

“Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be ‘the existence -of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.’ Section 5858, Rev. Laws 1910. The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed an opinion founded upon rumor, statements in public journals, or. common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless -it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial. Ex parte Spies, 123 U. S. 131 [8 Sup. Ct. 21, 22, 31 L. Ed. 80] ; Holt v. U. S., 218 U. S. 245 [31 Sup, Ct. 2, 54 L. Ed.. 1021, 20 Ann. Cas. 1138]. '* * * The increased facilities, through the press, of spreading stories of crime as items of news, especially among the more intelligent classes, makes it difficult to lay down a fixed rule which would disqualify persons who formed their opinions from newspaper reports, or common report and rumor, unless it be of that character which impairs the impartiality of the juror by engendering a bias or prejudice which is fixed, and would require evidence to remove. Under the .provisions of the statute the competency of the juror is a question of fact to be determined by the court. ' Before the court can so determine, it must be shown by an examination of the juror, upon his voir dore, not only that his opinion was formed solely in the manner stated, but, in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. * * * An examination of the testimony of these jurors, given on voir dire, shows conclusively that the opinions which they formed, and that one juror says he may have expressed, were founded upon the reports which they had read in the newspapers. Intelligent men take newspaper accounts as current news, liable to qualification, explanation, or contradiction, and, when qualified, explained, or contradicted, they change their opinions or belief accordingly as a matter of course. The opinions of the jurors here were such opinions merely as intelligent men almost irresistibly form from reading newspaper accounts of crime, relying upon the truthfulness of the published accounts, which are always subject to be changed and altered by contradictory accounts. Such opinions rarely disqualify intelligent men from fairly considering the evidence given at a trial and rendering an impartial verdict thereon \yheri called upon to act as jurors. Nine-tenths of the intelligent taxpayers of the county, where a homicide has taken place, and the facts and the circumstances attending it have been published in the newspapers, would be disqualified as jurors, if the objections raised in this case were well founded. All of them would read the accounts or hear the facts detailed by some one who had read them, and most of them would form just such opinions, or get just such impressions as the jurors had in this case.”

Counsel for plaintiff in error rely on the cases of Turner v. Stole, 4 Okla. Cr. 165, 111 Pac. 988, Scribner v. State, 3 Okla. Cr. 605, 108 Pac, 422, 35 L. R. A. (N. S.) 985, and Tegeler v. State, 9 Okla. Cr. 149, 130 Pac. 1164. The proposition presented by the case at bar is not identical with that determined in these cases. The latter three were reversed because' certain jurors were retained over the objection of the defendant.

In the Turner Case, Juror Blackburn said that he had no reason to doubt the newspaper accounts that he had read, that he believed those accounts were true, and that in his opinion the deceased was murdered, and that he believed the defendant was guilty. In the case at bar no such statement was made by any juror. If there had been, this cause would be reversed. In the Scribner Case, Juror McKinney stated that he could not give, the defendant the same fair trial that he could have given if he had not heard of the case. No such statement as this was made by any of the jurors impaneled in .the case at bar. They all said that they could give a fair and im-nartial trial, and would do so. In the Tegeler Case, Juror Johns, who acted as foreman of the jury that convicted Tegeler, stated to the court that he had formed an opinion as to the guilt of Tegeler; that he was present in the courtroom at a former trial of the case and heard testimony introduced at that trial; that he probably had talked to some of the witnesses in the case; that he had talked to other parties who had detailed the evidence, and that he had read detailed accounts of the homicide and of the testimony as published in the Oklahoma City newspapers; that at the time of his examination he stood on one side of the case, and that he had in his mind a fixed opinion as to the guilt of Tegeler and that it would take sti’ong evidence to remove it. When asked as to whether he had any doubt about that, he emphatically replied, “None in the world.” The record in that case further shows that the opinion of this juror was that Tegeler was guilty. In the case at bar there is no testimony that even approaches these conditions. The doctrine of these latter opinions is just as sound and is just as permanently fixed in the jurisprudence of this state as the doctrine in the Bradford Case, followed down to and including the Gentry Case.

Finding no error in the record prejudicial to the substantial rights of the plaintiff in error, the judgment of the trial court is affirmed.

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


text:
    ISAAC PENN v. STATE.
    No. A-2378.
    Opinion Filed May 15, 1917.
    (164 Pac. 992.)
    1. STATUTES — Repeal of Statutes — Retrospective Operation — Constitutional Provisions. Section 54, art. 5, Constitution, provides: “The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty, incurred, or proceedings' begun by'¡virtue of such repealed statute.” Above section construed in part, and held, “that statutes 'repealing'penalties for offenses committed'in this’ state operate prospectively and are applicable -only; to offenses' ■committed after the statute became effective.” f . . • . .....
    2. INDICTMENT'' AND' INFORMATION — Itop^Negatíving pefpn:. sive Matter. Matters fftirfely-bf defense ííetíd ‘údt bd’pleádéd in "the indictment or in^qrmati'on.- • The..lattw:;,sefft.ence;c(>ntained in section 2415, Rev. Laws 1910, creates a defense to the, ¡cpúpip- pf j;^pe; ; committed on a ¡female-over the'age of Í4 Veáis with her'consent.' It is not necessary to negative-such..defense'in -the' indictín’éñt lor--'-information charging such crime. , r. , -ti

    3. EVIDENCE — Evidence of Other Offenses — Subsequent Intercourse. In a prosecution for statutory rape, evidence of acts of sexual intercourse between the prosecutrix and the defendant occurring subsequently and related in time to the act upon whi?h the prosecution is based is admissible to show the intimate relation and familiarity of the parties and as corroborative of the ultimate fact sought to be proven.
    4. NEW TRIAL — Newly Discovered Evidence — Defense. It is not error for the court to overrule a motion for new trial based on newly discovered evidence, where it appears that by the exercise of due diligence the alleged evidence could have been elicited upon the trial.
    5. APPEAL AND ERROR — Burden of Showing Error — Assertion of Error. The burden of showing error rests upon' the appellant, and 4t is the duty of counsel for appellant to clearly point out any errors in the court’s instructions and support the same with argument and authority. Mere assertions of error contained in the brief cannot be considered, unless it is apparent to the court that there has been a probable miscarriage of justice and the substantial rights of the appellant have been injuriously affected by the instructions 'given.

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    Isaac Penn was convicted of the crime of statutory rape, and sentenced to imprisonment for five years, and he brings error.
    Affirmed.
    -S'. B. Garrett, E. M.. Stewart,- Jarrett Todd, and Wilkin B. Garrett, for plaintiff in error.

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

The defendant was convicted of the crime of statutory rape in the district court of Greer county, and sentenced to imprisonment in the state penitentiary for a term of five years, the information alleging" the crime as defined by subdivision 2 of section 2414, Rev. Laws 1910. He took the witness stand in his own defense, and while virtually admitting the commission of the act pleaded that at the time the crime was committed he was under the age of 13 years, and was entitled to be acquitted under the provisions of section 2415, Rev: Laws 1910, which provides:

“No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged unless his physical ability to accomplish penetration is proved as an independent fact and beyond a reasonable doubt. Nor can any person be convicted of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such pérson was over the age of eighteen years at the time of such act.”

The latter sentence in said section became a part of the law of this state May 16, 1913.

This alleged offense was committed on May 9, 1913. The effect of the adoption in the 1910 Code of the foregoing provision of section 2415 was to repeal the preexisting penalty attached to the crime of rape committed upon a female over the age of 14 years with her consent should it appear that the person charged was not over the age of 18 years at the time such act was committed. After the taking effect of such provision, no matter how completely the act of sexual intercourse be proven, if it appeared that the prosecutrix was at the time of. said act over 14 years of age and consented thereto, and the defendant was not over 18 years of age, there could be no conviction. The penalty theretofore existing for such an offense was entirely wiped out by the statute.

Now in this case it is contended that although the crime, if any, was committed prior to the taking effect of the statute, said statute being operative at the time of the trial, it was applicable to this prosecution. With this contention we cannot agree. Section 54, art. 5, Constitution (section 144, Williams’) provides:

“The repeal of a statute shall not revive a statute-previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”

The very minute this crime was committed the defendant became amenable to the law as it then existed. He then and there by his own voluntary conduct incurred the penalty of that law, and the constitutional provision aforesaid prevents the Legislature of this state from wiping out penalties for crimes committed prior to the taking effect of a repealing statute.

At the time this act was committed the accused, although not over 18 years of age, was subject to prosecution and a penalty attached for an act of sexual intercourse with a female of previous- chaste and virtuous character between Í6 and 18 years of age, either with or without her consent. The fact that the Legislature after-wards saw fit to change the law cannot avail this defendant so as to relieve him of the penalty he had already incurred. In principle this identical question was passed upon in Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575, Ann, Cas. 1914B, 443. In that case it was held:

“The Constitution provides that-: ‘The repeal of a statute shall not revive, a statute' previously, repealed .by such statute, nor ’shall such repeal affect any ’ accrued right or penalty incurred or proceédings begun by virtue of such repealed statute.’ Williams’ Const,,,sec. 144- (article 5, sec. 54). ", ' " ’. .........
“Section 2815,. Wiísonüs Rev... .&. - Ann.. ,St., 1-9Q3-,-. provides : ‘The repeal. of any statute by the legislative assembly shall not have the effect to release or’extinguish, any penalty, forfeiture; or: liability incurfed ’ under' such' statute, unless the repealing act "shall; so’expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.’
“Under these provisions of the written law, it is held that the district court of Lincoln county, upon a retrial of this case, should submit the punishment for •conjoint robbery under the statute as it existed at the time the offense is alleged to have been committed, which punishment is life imprisonment.”

We hold, therefore, that this defendant was subject to any penalty imposed by law for this crime' on the date of its commission, and any subsequent statute repealing such penalty can only operate prospectively, and is applicable only to offenses committed after the statute took effect.

The prosecutrix was shown to be of the age of 17 years at the date of the commission of the offense, and to be of previous chaste and virtuous character. While the defendant attempted to controvert both of these propositions by insinuations and innuendoes, there is no evidence worthy of consideration tending to disprove the positive evidence of the state on both points. The evidence on behalf of the state is amply sufficient to sustain the verdict and judgment.

It is contended, among other assignments of error, that the information is insufficient because it fails to negative that the defendant was less than 18 years of age at the time of the alleged offense. While it is not necessary, in view of what we have heretofore held in this, opinion, to pass upon this question in this case, we deem it advisable to do so for the reason that the same question is very apt to arise in subsequent prosecutions under this statute. The allegations contained in this information were the same as those approved by this court in Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261, and. as the adoption in the Code of the provision contained, in the last sentence of section 2415, supra, merely creates, a new defense and forms no part of the definition of the: crime itself, it was not necessary to negative each defense in the indictment or information. Matters purely of defense need not be pleaded in the indictment or information. The following cases are in point: Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611, 139 Am. St. Rep. 918; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; State v. Knighten, 39 Or. 63, 64 Pac. 866, 87 Am. St. Rep.6 47. In' the latter case the Supreme Court of Oregon, said:

“The defendant was convicted of the crime of rape-by carnally knowing a female child under the age of 16. years. Objection was made to the introduction of any testimony for the state on the ground that the indictment does not state a crime, because it does not allege-the defendant was over the age of 16 years when it was alleged to have been committed. The statute (Sess. Laws 1895, p. 67) provides that,, ‘if any person over the age of sixteen years shall carnally know any female-child under the age of sixteen years/ etc., he shall be deemed guilty • of rapé. It is argued that under this statute the age of the defendant is an essential ingredient of the crime, and must be averred in the indictment. But, as we understand the statute, its only effect is to raise the age of capacity of the male from 14, as. it was at common law, to 16 years. At common law, a boy under 14 years of age was conclusively presumed to-be physically incapable of committing the crime of rape, but it was never held that it was necessary to allege the age of the defendant in an indictment for that crime. 16 Am. & Eng. Enc. Law; 315; Commonwealth v. Seanneil, 11 Cush. [Mass.] 547; Sutton v. People, 145 Ill. 279, 34 N. E. 420; State v. Ward, 35 Miss. 182, 28 N. W. 192. Nor is it necessary under the statute. If the defendant was below the requisite age, it is a matter of defense. Mr. Bishop says the age of the defendant need not be set out ‘though the statutory words are “any person of the age of fourteen years and upward, who shall have carnal knowledge.” If he is below fourteen, it is simply matter for defense.’ Bish. St. Crimes (2d Ed.) sec. 482.”

It is also contended that this judgment should be reversed because the court erred in overruling the motion for a new trial on account of evidence newly discovered, tending to prove the unchaste character of the prosecutrix at the time this offense was committed. This allegation of error is based upon the affidavit of one John Hash filed in support of the motion, to the effect that he (Hash) had had sexual intercourse with the prose-cutrix some time.during the month of December, 1910. But John Hash was a witness for the defendant in this case, and made no such disclosure. Hash lived in the immediate vicinity of these parties, and this prosecution was pending for eight or ten months before trial and the defendant had learned that this witness had kept company with the prosécutrix prior to the time this offense was alleged to have been committed, and it also appears that counsel for the defendant in the cross-exj-amination of the prosecutrix, her father and mother, indicated by questions asked that Hash had been guilty of illicit relations with the prosecutrix, which alleged fact was strenuously denied, and counsel for defendant failed to ask Hash, when a witness, anything about, such matter, and the affidavit of' Hash states that had he been asked concerning his relations with the prosecutrix he would have sworn that he had had sexual intercourse with her in December, 1910. - There is no such showing pf diligence on the part of the defendant and his counsel as to entitle him to a new trial on account of newly discovered evidence. It clearly appears, if Hash is to be believed at all, that by the exercise of reasonable diligence this evidence could have been elicited upon the trial. This assignment of error is wholly without merit.

It is contended also that the court erred in permitting the prosecutrix to testify to a series of acts of sexual intercourse with the defendant occurring subsequently, and related in time, to the act upon which the prosecution was based. This assignment presents no new question. In the case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, the same contention was made and the question decided adversely to the contention of counsel. The weight of modern authority is to the effect that such evidence is admissible to show the relation and familiarity of the parties and as tending to corroborate the prosecutrix as to the particular act relied upon for conviction. As was said in Woodruff v. State, 72 Neb. 815, 101 N. W. 114, such evidence, if believed, “is corroborative of the ultimate fact sought to be proved; that is, the act of sexual intercourse as charged in the information.”

The court gave an instruction covering the purpose, for which such subsequent acts of sexual intercourse might be considered by the jury. The substance of the instruction is to the effect that the defendant cannot be convicted because of such subsequent acts, if believed to be true, but that such evidence is only to be considered in connection with the other evidence in determining whether or not the defendant had sexual intercourse as charged in the information. It is claimed that such instruction was one on the weight to be given to such evidence.

The instruction contained no comment on the probative force of the evidence of subsequent acts of sexual intercourse, but was given for the purpose of informing the jury that such acts did not form the basis for convicting the defendant. The instruction placed correct limitation upon the jury in considering this evidence. Woodruff v. State, supra.

Also instruction No. 4 is complained of. Said in-instruction is as follows:

“No person can be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years with her consent, unless such person was over the age of 18 at the time of such act; and in this case you are instructed that if you find the witness Bettie Robertson consented to the act of the alleged intercourse on May 9, 1913, then before you can convict the defendant you must believe from the evidence beyond a reasonable doubt that he was at the time of such inter- . course over the age. of 18. But if you. jfind from the, evidence beyond a reasonable doubt that the defendant had sexual intercourse with the'witness'Béttie Robertson' on the 9th day of May,. 1913, as such, intercourse is.de-' fined in paragraph...2 of these .instructions,'...and that, she did not consent to such intercourse, then it will, be your . duty to find the defendant guilty,-whether or not he was-., then and there over'.the age -of ■-•18.” .-•■■■■ • - - ■ •

For the reasons 'herein'stated the-defendant-in. this-case was not entitled to interpose this 'defense for the pür-pose of avoiding the penalty imposed by law and which he incurred at the time the crime' was committed! The instruction therefore was erroneous in’ that' it was prejudicial to the state, but of such errors the defendant cannot avail himself. The law never considers a question of error except in behalf of those who are injured thereby. Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445.

We have carefully examined the entire record. The instructions as a whole correctly state the law applicable to the facts, and are as favorable to the defendant as the law and evidence warrant, if not more so. In our opinion the defendant had a fair and impartial trial, was clearly proven guilty, and the punishment assessed is not excessive. The judgment of conviction is therefore affrmed.

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


text:
    J. E. SPRADLIN v. STATE.
    No, A-2399.
    Opinion Filed May 15, 1917.
    (164 Pac. 990.)
    1. APPEAL AND ERROR — Discretion of Trial Court — New Trial— Prejudice of Juror. Where, in a motion for new trial on the j ground that one of the jurors who sat in the case- was prejudiced against the defendant, evidence is introduced both in support of and in opposition thereto, a question of fact is presented to be determined by the trial court. In the absence of a showing of abuse of discretion in this matter the judge’s determination of this question of fact will not be disturbed by the court on appeal.
    2. SAME. Where the evidence in support of a motion for a new trial, on account of the prejudice of a juror within the definition of actual bias, is clear and convincing, and the rebuttal evidence is doubtful and evasive, the refusal of the trial court to grant a new trial under such circumstances amounts to an abuse of discretion such as will authorize this court to reverse the judgment of conviction.

      Appeal from District Court, Bryan County; * Jesse Hatchett, Judge.

      J. E. Spradlin was convicted of embezzlement, and
    he appeals.
    Reversed.

      W. E. Utterback and V. B. Hayes, for plaintiff in error.
    S’. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Among other assignments of error it is alleged that the court erred in overruling the appellant’s motion for a new trial. This motion was based upon several grounds, some of which we deem it unnecessary to discuss. Among others was the ground that one of the jurors, to wit, Frank Lewis, who sat in the case and acted as foreman of the jury, had, previous to his selection as a juror, expressed, in effect, an opinion that the defendant was guilty of the offense charged against him, and also had disclosed a state of mind which showed that he was biased and prejudiced against this defendant personally, and that discovery of such prejudice was not made by counsel representing accused until after the jury had been selected and sworn and the trial was in progress. The trial progressed continuously, and was concluded in one day.

While counsel should have called this matter immediately to the attention of the court, and are subject to criticism for not so doing — is the fact that such was not done sufficient of itself to authorize this court to ignore the alleged fact that this juror was prejudiced and attribute the laches of counsel to the accused himself? It may be asserted that to reverse a judgment under these circumstances places a premium upon perjury and encourages deception and misconduct on the part of sworn officers of the court. However true that may be, where the granting of a new trial for such reason rests within the sound discretion of the trial court, this. court will not reverse the judgment of conviction, unless it appears clearly that there has been an abuse of such discretion. We have no apprehension of our ability to control such matters. The merits of such controversies are governed solely by the record in each case. Sharp practices and deception by counsel on, either side will riot be tolerated or encouraged. Hereafter we advise counsel to call this matter to the attention of the trial court immediately upon its discovery, and if the trial is in progress an investigation may be had that will save both the state and the accused. further annoyance and expense.

After the presentation of the motion for a new trial the court heard evidence upon this assignment. Such procedure was proper. Stewart et al. v. State, 4 Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505.

It clearly appears by the testimony of witnesses in support of the motion for a new trial, all of whom were members of the bar, that this juror, although asked on his voir dire examination if he .had expressed any opinion as to the guilt or innocence of this defendant, and also whether he had any prejudice against the defendant, indicated in his answers that he had not expressed any opinion as to the guilt or innocence of the defendant, and also that he was not prejudiced against the defendant personally. It also appears, and is undisputed, that the counsel for defendant, who were actively engaged in the trial of the case, had no knowledge previous to the trial of the alleged fact that this juror had made the expressions attributed to him by the witnesses. One of these witnesses swears positively that this juror on the morning of the day that the case was called for trial, and on his way to the courthouse, made the statement:

“That damn fellow ought to be sent to the penitentiary anyhow. He got everything from that estate he could get his hands on.”

This statement is corroborated in substance by another witness.

The juror Lewis was examined, and when asked with reference to whether or not he made such a statement testified, “That he did not remember of it at all; that he didn’t know a thing about Spradlin, and if he said anything about the case he didn’t remember it.” In his cross-examination he testified that he did remember walking down the street with Mr. McDonald on the morning of the trial, and that he possibly did say something about having to serve on the jury, and regretting that he had to serve; that after the trial he did have a conversation with Mr. McDonald • in which he was asked what he meant by qualifying as a juror; that if he said anything about the case he must have been joking about it; that he didn’t know anything about the defendant, or that any casé was pending’ against him.

It is also shown by the record that the witness W. H. Ritchie, an attorney at law, who represented the defendant in the settlement of his accounts in the county court, but who did not represent him. in the trial of this case, had a conversation with the juror Lewis some time before the trial in which Lewis expressed the opinion, according to Ritchie, “That damn, scoundrel ought to be in the penitentiary,” referring to the defendant, “for robbing that. child of his”; that the witness Ritchie, never communicated this information to counsel for the defendant until after the trial of the case and until after the witness McDonald was testifying to what he had heard the juror Lewis state, but this testimony, the witness Ritchie says, refreshed his recollection as to, what Lewis had previously stated to him. The juror Lewis testified that he had never had such a conversation with Ritchie. Section 5858, Rev. Laws 1910 (stating grounds of challenge of jurors for express or implied bias), provides :

“For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this chapter as implied bias..
“For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias.”

The grounds of challenge to a juror on account of actual bias are the existence of a state of mind on the part of the juror with reference to either party or to the case which satisfies the court in the exercise of sound discretion that he cannot try the issue impartially. One of the essentials of a fair and impartial trial under our statutes is that the person accused of crime shall be tried by men who are not prejudiced against him or against his cause. Where, upon the hearing of a motion for a new trial, two reputable members of the bar testify positively that a juror had expressed the opinion that the defendant ought to be sent to the .penitentiary, that he had stolen everything he could from that estate, and it is apparent tha,t he referred to the matter in controversy in the trial, and the juror, although admitting he had a conversation with such witness at the time and place mentioned, only testifies that he has no recollection of making such statement, can it with reason be said under such circumstances that the defendant has had that fair and impartial trial .guaranteed him by our Constitution and statutes? On the one side the testimony is positive and convincing; on the other doubtful and evasive; yet only 17 days intervened between the date of the alleged conversation and the hearing on the motion. The impartiality of the jury goes to the very foundation of the accused’s liberty, and where evidence is introduced such as is disclosed by this record of a convincing character to show that there is a strong probability that the accused was not accorded that fair and impartial trial guaranteed to him by the Constitution and laws of this state, and the-rebuttal evidence is of a very unsatisfactory character, the verdict should be set aside and a new trial granted. It requires the unanimous consent of the jury to convict, and a fair and impartial jury is not had by 11 impartial men and one man shown to be prejudiced within the definition of actual bias.

We deem it unnecessary to discuss the other alleged errors assigned as causes for reversal. For the foregoing reason the judgment is reversed, and a new trial granted.

■DOYLE, P. J., concurs. ARMSTRONG, J,. not participating.