author: BESSEY, J.

text:
    MACK CLAYCOMB v. STATE.
    No. A-3710.
    Opinion Filed Jan. 2, 1923.
    (211 Pac. 429.)
    (Syllabus.)
    1. .Names — Idem Sonans — Names of Witnesses Incorrectly Spelled in Indorsement. — The doctrine oí “idem sonans" may apply where the names of foreign witnesses are incorrectly, .but phonetically, spelled.in the indorsement on the information and in the list of witnesses served .on the accused.
    2. Trial — Rebuttal Testimony Proper, Although Portions) Might ■Have' Been Introduced in Chief. — Rebuttal testimony tending to clarify disputed points may .be introduced, although portions of such rebuttal testimony might have been introduced in chief.
    3. Witnesses — Discretionary to Permit Leading Questions to Witnesses Speaking English Imperfectly. — Where witnesses speak the English language imperfectly, it is within the sound discretion of the trial court to permit leading- questions to be propounded on direct examination.
    4. Courts — Interpreter not Incompetent on Account of Relation to Witness or Party. — One is not necessarily rendered incompetent to act as an interpreter merely because he is related to the wit- . ness or because of friendly relations with either party.
    5. Same — Interpreter Disqualified by Showing Him incapable or Unreliable. — An interpreter may be disqualified on direct or on cross-examination, or by independent testimony, showing that'the' interpreter is incapable of translating or is unreliable.
    6. Homicide — Instruction on Insanity — Sufficiency.—Instructions of the court to the jury relative to the alleged insanity of the
    7. Trial — Misstatement of Law in Prosecutor’s Argument — Cure by accused examined and found sufficient. '
    Court’s Correction. — A misstatement of the law by the county attorney in his argument to the jury, which was promptly corrected by the court, was without prejudice to the accused under the circumstances here.
    Appeal from. District Court, Latimer County; E. P. Les-, ter, Judge.
    Mack Claycomb was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    L. Y. Reid, C. C. Null, and R. P. White, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., foh the State.
   BESSEY, J.

Mack Claycomb was by information filed in the district court of Latimer county on September 1, 1919, charged jointly with Mrs. Mack Claycomb and Jewell Clay-comb with the murder of Jessie Fitzgerald on May 31, 1919. At the trial the jury returned a verdict of manslaughter in the first degree against Mack Claycomb, assessing his punishment at confinement in the state penitentiary for a term of 25 years. From a judgment on the verdict defendant appeals.

Mack Claycomb, plaintiff in error, referred to herein as the defendant, was a Mexican, as were nearly all of the witnesses. It was claimed that about three weeks before the fatal difficulty, while the defendant and his son Jewell were absent from home, the father of the deceased stopped at the home of the defendant and made improper proposals to defendant’s wife, who was there alone. For this the defendant caused the arrest of the father of the deceased, and at the preliminary hearing the father was discharged. The father and sons then threatened to proceed against defendant’s wife for slander, and they had several heated discussions concerning the incident. The defendant and members of his family gave evidence to show that the father and sons threatened to prosecute the defendant for slander in order to cause him and his family to leave the country; that they several times went to the home of the defendant and' made threats towards the defendant and his family — all of which the father and sons denied.

Defendant claims that on Saturday night, at about 9:30 o’clock, the deceased approached defendant’s home, and when about eight steps from the door, while abusing defendant’s wife and while still advancing towards the door, defendant seized his shotgun and, to prevent deceased from entering his home, shot him twice; that he remembered seeing the deceased fall in the public road east of his house, but did not remember firing a third time.

The evidence on the parti of the state indicates that after, or possibly before, the first shot, the deceased was retreating; that after shooting the deceased twice, defendant called to his son for more shells, and he reloaded his gun and shot deceased a third time, deceased falling mortally wounded after the third shot, about 100 yards from where the difficulty began. The deceased was in his shirt sleeves and unarmed. The fatal shot crushed the side and top of his skull, so that a part of his brains oozed out on the ground where he fell.

The defendant claimed he was justified in the shooting on the ground of self-defense and the defense of his home and family, and also pleaded temporary insanity brought on by the relations between himself and the deceased and his family prior to the tragedy.

A number of alleged errors are urged as reasons why the verdict should be set aside. These may be summarized as follows:

(1) That witnesses were permitted to testify ■ whose names had not been indorsed on the information and of whose testimony defendant had no notice.

(2) Improper reception of testimony elicited by the prosecutor’s repeatedly, propounding leading questions to witnesses for the state.

(3) Alleged error in overruling objections to the translations of an interpreter.

(4) Alleged erroneous instructions to the jury.

(5) Misconduct of the prosecutor in his argument to the jury.

Among the many names indorsed on the information as witnesses in this case were ‘ ‘ Saudda, ” “ Bahulkgs, ” “ Gonzl, ’ ’ '‘Tabela,’’ “Fabra,” and “Ewicts,” all names difficult for English-speaking people to spell or pronounce. A witness, Mary Sabala, was called' by the state, whereupon an objection was interposed by defendant because no such name was indorsed om the information and no notice given that such a witness would be called. It developed that one Mary Fabra, who was al witness at the preliminary hearing, was the person intended to be called, but that for some reason her name was not indorsed on the information or in the list of witnesses as such. The court then excused this witness. Another witness was called, who said her name was Salome Sancedo. She could not spell her name in English letters. The name indorsed on the information was Salome Saudda, and it was also so written in the list of witnesses. The best that could be done was to spell' the name phonetically; hence the discrepancy. The defendant was not misled, so far as the record shows, and the objection to this witness’ testimony on the ground urged was purely technical. The court committed no error in permitting her to testify. The doctrine of idem sonans applies under such circumstances. 19 R. C. L.1334; 2 Words and Phrases, Second Series, 928.

Defendant also contends that much testimony was permitted to be introduced in rebuttal that should have been introduced in chief. The witness Mary Sabala, indorsed on the information as Mary Fabra, was called to testify in rebuttal. She testified as to the place where the deceased and the defendant and his wife, stood when the shooting took place, designating different positions than were testified to in the account given by defendant and his witnesses. She also testified that Mrs. Claycomb was talking, but that she could not understand what she said. ‘Portions of this testimony and that of other witnesses called' on rebuttal related to matters controverting the testimony given by defendant, dovetailing in with facts that could have been introduced in) chief. Rebuttal evidence is proof of facts tending to explain, repel, counteract, or disprove matters given in evidence on the other side. 3 Bouvier’s Law Dictionary, p. 2820.

Evidence tending to clarify a disputed point may be properly rebuttal testimony, notwithstanding the fact that the same testimony might have been introduced in chief. Wig-more on Evidence, § 1873.

Defendant complains further that there was prejudicial-error in the repeated reception of testimony elicited from the state’s witnesses by the prosecutor by means of leading questions asked the witnesses. It has often been held that the permitting of leading questions is within the sound' discretion of the trial judge, where, as in this ease, the witnesses converse with difficulty in the English language. 28 R. C. L. 589.

In People v. Brown, 273 Ill. 169, 112 N. E. 462, Ann. Cas. 1918D, 772, the court said:

“It is contended that the conrt erred in permitting the state’s attorney .to ask leading questions. The witnesses were not Americans and were acquainted only with the language of their nativity and testified through an interpreter. There was some difficulty in getting direct and: intelligible answers, and some of the questions in terms directed attention to the subject-matter concerning which they were called to testify. We do not find any question which indicated the answer desired, and the rulings were evidently for the purpose of expediting the trial. The matter was largely in the discretion of the court, and there was no improper ruling. ’ ’

For the most part, the answers to the leading questions, if indeed they were leading, were not prejudicial, for the reason that these questions did not have any reference to the plea of insanity and only a remote bearing upon the plea of self-defense. The testimony of the defendant and his own witnesses showed that the deceased was shot three times on the public highway, and that he fell, mortally wounded, about 100 yards from where the difficulty commenced. The deceased was unarmed, and the testimony on both sides indicated that so soon as the! deceased saw the defendant with the shotgun he rapidly retreated. Under such circumstances, defendant suffered no disadvantage by'reason of the questions complained of, even if it be conceded that the court did permit improper leading questions to be propounded.

It is next contended that there was error in permitting certain witnesses to give their testimony through an interpreter, particular objection being made to the examination of the' witness Mrs. Enoch Warner in this manner. Mrs. Warner was a Mexican woman who spoke the English language imperfectly, and she had testified at some length, when it was suggested that better progress could be made by calling in an interpreter; whereupon her husband, Enoch Warner, was called and sworn as an interpreter. The defendant objected to the husband acting as interpreter for the reason that he himself was a witness, that he spoke the English language imperfectly also, and that his interpretation might be his own testimony rather than that of his wife. At this time Enoch. Warner had already appeared as a witness, and the court had opportunity to observe his ability to understand the' English language, and the objection was by the court overruled. The-examination of Mrs. Warner then proceeded, aided by the interpretations made by her husband. Defendant -says this was-error as a denial of his right to be confronted with the witness against him and a denial of his right to properly cross-examine-the witness. There was some confusion and difficulty in eliciting answers from the witness through the interpreter, during which the court interrupted counsel and said:

“The trouble is that the attorney isn’t directing’ his interrogations through the interpreter to the witness; it seems that he is directing them to both of them, and therefore it is confusing.”

The defendant then again objected to the interpretation, but made no further showing and no offer to show that this interpretation was incorrect or that the interpreter was incompetent. One is not rendered incompetent to act as an interpreter because he is related to the person whose evidence he is called upon to interpret, or because of friendly relations with either of the parties. State v. Burns (Iowa) 179 N. W. 843; People v. Rardin, 255 Ill. 9, 99 N. E. 59, Ann. Cas. 1913D, 282. People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73; State v. Michel, 20 Wash. 162, 54 Pac. 995; notes L. R. A. 1916F, 1206.

The defendant undoubtedly had a right to show, if he could, by direct examination or by independent testimony, that the interpreter was incapable of translating the Mexican language into the English language, or that the interpretations made were incorrect; but the record discloses no sufficient showing of this character.

It is next contended that the court erred in giving certain instructions to the jury, and in refusing to give instructions offered by the defendant. The court submitted 43 separate instructions, covering every phase of the evidence introduced. These instructions, separately and as a whole, were clear and concise and favorable to the defendant. Some of the instructions considered separately did not cover all the law relating to the subject treated in the particular instruction, but the jury were admonished that they must consider the instructions as a whole, so that any parts omitted in any single instruction were properly incorporated in other instructions.

Defendant calls our attention to the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, touching upon the question of temporary insanity. In the Adair Case it was held error to have refused to give the following instruction:

“Gentlemen of the jury, you are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed, the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity. It is not required that the defendant shall prove his insanity to the satisfaction of the minds of the jury by competent evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if] he only introduces sufficient evidence to raise in your minds a reasonable doubt of his sanity, and when this is done you are instructed that the burden of proof is upon the state to prove the sanity of the defendant by competent evidence, beyond a reasonable doubt, before you would be justified in convicting the defendant as charged in the indictment, and then the burden of proving the sanity of the defendant rests upon the state, like that of proving any other material allegation of the indictment; and if you believe that the state has failed to prove by competent evidence, beyond a reasonable doubt, the sanity of the defendant, and if from all the evidence in the case there is a reasonable doubt in your minds as to the sanity of the defendant, you will return a verdict of not guilty and acquit the defendant.”

In the instant case, instruction No. 23 given by the court was copied almost verbatim from the instruction just quoted, with the addition of the following:

“You are further instructed in this connection that an insane person is. not responsible criminally for his acts. The test of criminal responsibility for acts which would be crime under the law is ‘the mental capacity to distinguish between right and wrong as applied to the particular acts, and to understand the nature and consequences of such act, or knowing its wrongfulness’; defendant is not criminally responsible if by reason of insanity he did not have the will power to refrain from committing such act.”

We think the instruction as' given meets the requirements set forth in the Adair Case. To attempt to give an abstract definition of insanity would be dangerous. The court, in the Adair Case, quotes with approval from Bishop’s New Criminal Law (8th Ed.) § 381, and from Ray’s Medical Jurisprudence, Insanity, § 22, as follows:

“Many attempts have been made to discover, what has been assumed to exist, a form of words, termed a test of insanity, which, put into the hands of jurors, can be used by them as a sort of legal yardstick to measure the evidence and determine whether or not the prisoner had sufficient length of mental alienation to escape responsibility for his act. But the test has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.
“The symptoms of * * * insanity are so variable, and its pathology so complex, that no two cases may be just alike. The fact of its existence is never established by any single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.”

Under the circumstances in this case no additional instruction by the court would have materially aided the jury in determining whether or not the defendant was insane at the time of the homicide.

Defendant contends that the prosecuting attorney in his argument to the jury misstated the law as incorporated in the instructions. In the course of the argument the prosecutor and the court spoke as follows:

Mr. Jones: The court tells you that the burden is on the defendant to show by competent testimony beyond a reasonable doubt that he is insane, and then it shifts to us to show his sanity—
The Court: The court desires to correct the statement of counsel that it is the duty of the defendant to show beyond a reasonable doubt that he is insane.
Mr. Jones: The burden is upon the defendant to raise in your minds a reasonable doubt of the sanity of the defendant — that is the charge of the court. •
The Court: But you1 used the term “beyond a reasonable doubt.”
Mr. Jones: The burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of the sanity of the defendant. Gentlemen of the jury, where is there any evidence in this case to raise any reasonable doubt of the sanity of Mack Claycomb % He was sane enough to be there at work in the garden at home, according to the evidence of the family; he was sane enough, men, to have his shotgun ready and have it loaded; he was sane, men, sane enough when his ammunition gave out to tell the boy to bring him more ammunition; he was sane enough to follow that boy off north down there 200 yards and shoot him and come back the same road he went, and join his family; and the proof is by them themselves that he said to the family, “Now, get ready and we will all go over to the bank.” Where is the evidence of insanity, or that he had' lost his reason?

True, the prosecutor, either purposely or inadvertently, did misquote the law; but the court very promptly corrected' him, thus calling the jury’s attention to the law as given by the court, rendering this error harmless. As to whether or not the facts disclosed in evidence justified the conclusion that the defendant was insane, the prosecutor had a right to refer to the evidence and draw his own deductions from such evidence. The jury might or might not agree with these deductions. Jones v. State, 20 Okla., Cr. 233, 202 Pac. 187.

The verdict of the jury was amply supported by the evidence. There was no evidence indicative of insanity on the part of the defendant excepting his own statement that after the second shot was fired he suffered a lapse of memory for a short interval and that he did not remember firing the third shot, though he did remember seeing the deceased fall at the conclusion of the difficulty.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    CECIL WARD v. STATE.
    No. A-3951.
    Opinion Filed Jan. 2, 1923.
    (211 Pac. 90.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction. — In a prosecution for the theft of automobile, evidence held sufficient to sustain the conviction.

      Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Cecil Ward was convicted of grand larceny, and he appeals.
    Affirmed.
    Baton ■& Dick, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty, Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Cecil Ward, jointly with-Bennie Jacobs and Ben Walker, was informed against for the theft of one Hudson Super-Six automobile, of the vaule of $2,-000, the personal property of B. M. Rucker, alleged to have been committed on or about the 19th day of July, 1919. Upon his separate trial, Cecil Ward was convicted and his punishment fixed at imprisonment in the penitentiary for the term of five years. From the judgment rendered on the verdict on the 29th day of September, 1920, an appeal was perfected by filing in this court on March 23, 1921, a petition in error with case-made.

Plaintiff in error is not represented by counsel- in this court, and no'brief in support of the assignments of error has been filed, but we have read and examined the entire record in this case.

The evidence is brief. It shows: That B. M. Rucker was the owner of a Hudson Super-Six automobile. That he lived five or six miles northwest of Beggs and the automobile was kept at his place in a garage. The night the automobile was taken the three defendants were seen associating together on the streets and at different places in the city of Beggs. About midnight the three defendants had Wood Shidler, a taxi driver, take them' to a place in the road about one-half mile from Mr. Rucker’s place. They walked to Mr. Rucker’s and went into the garage and pushed the automobile out on the road and down the hill without starting the engine. Then they got in the car and proceeded on their way to Tulsa. Between Sapul-pa and Tulsa they drove out into a pasture and hid the car in a thicket. They then went on to Tulsa, and stopped at a rooming house, where they went to bed.

Mr. Rucker received information from an officer in Sa-pulpa where his car was. The car was found in a thicket a mile and one-half southeast of Bowden, and about one-half mile from the home of Will Ward, an uncle of Cecil Ward.

At the time of the trial the defendant Jacobs was serving a term in the penitentiary at McAlester on a conviction for stealing a car in Muskogee county. The defendant Ben Walker testified as a witness for the state. The defendant offered no evidence, at the close of the state’s case, and moved for ah acquittal in the form of a demurrer to the evidence.

Upon our examination of the record, we find it free from substantial error, the only question presented is the sufficiency of the evidence to sustain the conviction.

In our opinion, the facts and circumstances in evidence, tending to connect the defendant with the commission of the offense charged, are sufficient to corroborate the testimony of the accomplice, and the defendant’s guilt or innocence was a question for the jury to determine.

The judgment of the lower court is accordingly affirmed.

MATSON and BESSBY, JJ., concur.


author: PER CURIAM.

text:
    R. E. STEVENSON v. STATE.
    No. A-4486.
    Opinion Filed Jan. 2, 1923.
    (211 Pac. 91.)
    Appeal from District Court, McCurtain County; E. F. Lester, Judge.
    R. E. Stevenson was convicted of disposing of mortgaged property, and lie appeals.
    Appeal dismissed.
    J. A. Andrews, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted; on an information charging the offense of disposing of mortgaged property, and his punishment was fixed at a fine of $100. On the 2d day of May, 1922, judgment was rendered in accordance with the verdict. From the judgment an appeal was attempted to be taken by filing in this court on November 1, 1922, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal, which reads as follows :

“Comes now the defendant in error by the Attorney General, and moves the dismissal of the above appeal for the following reasons: On November 1, 1922, the above appeal was procured to be filed by means of a worthless cheek, signed by attorney for the plaintiff in error; the charge on which plaintiff in error was convicted being disposing of mortgaged property in the district court of McCurtain county, Okla.,. the penalty being $100 fine. The $15 cheek deposited with said appeal was soon protested, and notice sent to all parties with no response from the maker. The clerk of the Supreme Court has made numerous demands by mail without even receiving an answer from said J. A. Andrews. The State Treasurer is soon to end his term of office, and said item must be adjusted at once on the records and properly charged off. "Wherefore defendant in error prays that the court dismiss said appeal, and that mandate issue at once.”

No response to this motion has been filed. For the reasons therein stated the motion to dismiss the appeal herein is •granted, and the cause remanded to the trial court, with direction to enforce its judgment therein. Mandate forthwith.


text:
    W. A. RICHARDS v. STATE.
    No. A-3870.
    Opinion Filed Jan. 4, 1923.
    (211 Pac. 515.)
    (Syllabus.)
    1. Appeal and Error — Verdict on Substantial Evidence not Disturbed. — The jury are the 'sole judges of the weight of the evidence, and where there is substantial evidence to support a verdict this court will not disturb such verdict on the ground of insufficiency of evidence.
    2. Appeal and Error — Insufficient Showing in Motion for New Trial — Improper Argument of Prosecution. — A mere recital in a motion for a new trial that the county attorney made certain remarks in his argument to the jury, without any independent showing that such remarks were made or any showing as to what preceded or what followed the alleged prejudicial remarks, is not of itself sufficient ground for disturbing a verdict.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    W. A. Richards1! was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    R. Brett and Jas. H. Mathers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, W. A. Richards, in this ■opinion referred to as the defendant, was by information filed in the district court of Carter county on October 1, 1918, charged with an assault with a dangerous weapon upon the person of Frank Jones. At the trial, on April 8, 1920, by a verdict.of the jury the defendant was found guilty as charged, and his punishment assessed at confinement in the state penitentiary for a term of a year and a day. From the judgment on this verdict defendant appeals.

The verdict of conviction in this case rests almost wholly upon the testimony of the prosecuting witness, Frank Jones. The defense was predicated wholly upon the testimony of the defendant himself. The difficulty occurred in the town of Wirt, at about 2 o’clock in the morning, with no witnesses present excepting the defendant and the injured party, Jones.

Jones had been a resident of Carter county for about 20 years, where he had been a farmer for some years, had worked in the oil fields more or less for 6 or 7 years, and was at the time of the difficulty night policeman or watchman in the town of Wirt. ■ The defendant was also a resident of Carter county for some years, engaged in various occupations, and having at' the time of the tragedy a ■number of head of cattle. About a-year previous to this difficulty he had been sent to the penitentiary, and had just recently been released. The two men were friends, and had had no previous trouble.

The injured man, Jones, testified that he was sitting on a projection of a house, next the sidewalk, in the town of Wirt, when a shot fired by the defendant struck near his feet and knocked dirt up into his lap; witness got up and walked to the edge of the sidewalk to see from whence the shot was fired; he then stepped back a few steps and was shot through the leg, which caused him to fall to the ground; witness then saw the defendant standing between two cars, with his gun in his hand; witness thereupon drew his gun, and defendant dropped down behind one of the cars; three or four shots more were fired by the defendant; after the witness was shot in the leg, he said to the defendant; “Speck, what are you doing?” After being so recognized, defendant fired one or two more shots; the witness then retreated down an alley, and when he came out of the alley defendant opened fire upon him again, shooting three or four times. Witness then went into a cafe, • where he' received medical attention.

The defendant’s story of the difficulty was,' in substance, that he went to his ear, preparing to go home, when two shots wrere fired at him by some person in the alley; that he returned the shots, firing two or three times; that the person firing then called to the defendant, and that defendant then for the first time recognized him as Frank Jones; that after they recognized one another no more shots were fired; that defendant and Jones were the best of friends, and had had no previous difficulty of any kind.

It was the theory of the defendant that Jones and one Kendall had had trouble earlier in the evening, and that Jones fired upon the defendant, believing him to be Kendall, and that Jones’ story of the difficulty was al fabrication, invented for the purpose of justification. Upon either theory of the case, so far as the record before us discloses, there was no sufficient motive shown.

But two assignments of error are urged in the brief: First. It is claimed that .the evidence is insufficient to support the verdict. Second. Complaint is made that the court erred in refusing to set aside the verdict because of improper remarks made by the county attorney in his closing argument to the jury.

Up/bn the first proposition enough has been said to show that there was substantial evidence to sustain the verdict. The jury are the sole judges of the weight of thé testimony.

The grounds for the next assignment of error were not properly preserved in the record, and there is no sufficient showing to bring this question to the notice of this court. A mere recital in a motion for a new trial that the county attorney made certain remarks in his argument to the jury, without any independent showing that such remarks were made or any showing as to what preceded or what followed the alleged prejudicial, remarks, is not of itself sufficient ground for disturbing a verdict. Proctor v. State, 22 Okla. Cr. —, 211 Pac. 1057; Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040; Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334.

The judgment of the trial court is affirmed.

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


text:
    LON JOHNSON v. STATE.
    No. A-3804.
    Opinion Filed Jan. 4, 1923.
    (211 Pac. 425.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction for Murder. — In a. prosecution for murder, involving self-defense issue, evidence held sufficient to sustain conviction.
    2. Appeal and Error — Sufficiency of Evidence — Extent of. Review.— Where there is substantial evidence to show the guilt of the defendant, this court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.
    3. , Same. — The jury are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and a verdict of conviction will not be reviewed on appeal on arguments directed to the credibility of witnesses Or the weight to be given their testimony.
    4. Evidence — Evidence of Collateral Facts Tending to Prove Distinct Offense Admissible to Prove Motive. — In a criminal prosecution, evidence of collateral facts tending to prove a distinct offense is admissible if it has a tendency to prove motive, intent, or other material fact.
    Appeal from. District Court, Cherokee County; E. B. Arnold, Judge.
    Lon Johnson was convicted of murder and he appeals.
    Affirmed.
    J. I. Coursey, for plaintiff in error.
    Geo. P. Short, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Lon Johnson, was informed against for the murder of one Rex Sansing. The trial jury found him guilty of murder and fixed his punishment at imprisonment for life in the state penitentiary. From the judgment rendered in accordance with the verdict, he appeals.

The errors assigned are substantially as follows: First, that the verdict of the jury is contrary to the law and to the evidence; second, that the court erred in admitting incompetent and prejudicial testimony; third, that the court erred in rejecting legal and competent testimony offered by the defendant. The record is voluminous, but the facts which we think sufficiently make clear the questions necessary for us to discuss are substantially as follows:

The killing occurred on the¡ night of the 20th day of November, 1919, on a byroad about three or four miles south of the town of Parkhill, in Cherokee county, between the hours of 10 and 11 o’clock. The deceased, Rex Sansing, and the defendant, Lon Johnson, had lived there in that neighborhood for at least 12 years; during the year 1910 Rex Sansing was in business in the town of Parkhill, and in his place of business a difficulty arose between Lon Johnson and one Ed Newton, a cousin of Johnson, and in connection with this difficulty 'Tom Johnson, a brother of Lon Johnson, was killed. Ed Newton was charged with the murder of Tom Johnson. On his trial Rex Sansing and his wife testified as witnesses. Newton was acquitted on the ground of self-defense.

Lon Johnson became embittered towards Rex Sansing and .his wife by reason of the testimony which they gave upon the trial of Ed Newton, and made threats against the life of Rex .Sansing, and some time afterwards a charge of dynamite was placed under the house of Rex Sansing, where it exploded. Later on Lon Johnson admitted that he had dynamited the ..home of Rex Sansing; that he had stated on numerous occasions that he had intended to kill Rex Sansing, because his testimony had cleared the man who killed his brother, Tom ■ Johnson.

The only eyewitness of the killing, other than plainitff .in error, was the deceased’s brother, Harve Sansing. His •testimony was substantially as follows:

“I have lived at Parkhill continuously for about 15 years, •excepting while in the army. Parkhill was the home of my •brother, Rex Sansing, for the past 10 years. On the 20th day of November, 1919, Rex drove A1 Johnson and his wife home in his automobile. After supper I went with my brother, Rex, to A1 Johnson’s; we then went to the Owen schoolhouse; from there we went to the home of Lee Johnson. Charley Boswell and Ralph Davidson were there. A1 Johnson went to a corn ■.shock and got a bottle of whisky; then we went back to the car. We stayed there a couple of hours. Lon Johnson came there about 15 minutes before we left and left there with us. We started to go home; after going about half a mile Lon Johnson commenced crying and cursing, saying, ‘Let me out.’ Rex drove the car to the left of the road; Lon Johnson got • out and walked off 10 or 12 feet and pulled a gun and stood there crying and cursing. We commenced trying to talk him -out of doing anything. Rex told him we were friends and we did not want any trouble. Lon said, ‘Rex, I am going to kill you,’ and commenced firing. Rex fell, and Lon kept firing. I ran and caught him, and he hit me over the head with his gun. I threw him down and took the gun away from him and hit him over the head two or three times, and he ran off. ’ ’

He identified an automatic pistol as the one he took from Lon Johnson.

As a witness on his own behalf, Lon Johnson testified:

“My age is 33 years. I was acquainted with Rex Sansing for about twelve years. On the evening of the shooting I got on my horse and went to Parkhill and from there I went to a spelling match. After it was over I went up to my brother Al’s place. On the way I saw Rex and Harve Sansing standing in the road; they had a fire built. Harve Sansing said, ‘Hello there,’ and asked me who I was. I told him, and asked him who he was. He said, ‘Sansing’; said he was lost and could not find the road out and that I would have to show him the way out or he would beat my brains out. Rex Sansing said, ‘Show him the way out.’ I told him that I would. Rex had taken hold of the bridle rein of my horse. I tied the horse by the side of the road; then I told them to get in the car; and we started down the road leading to Parkhill. Rex commenced running the car fast and reckless. I tried to get him to quit and he would not do it; I slammed my foot on the brake, and it stopped. I jumped out of the car; Rex Sansing came right out after me and asked me what I was going to do. I said I was going to'go back. He said, ‘You are going to play hell,’ and he hit me with his fist. We commenced knocking at each other, and I backed up to the hind wheel. He came out with a car crank in his hand and told Harve to get away. Then he hit me on the side of the head with the car crank and knocked me down. I got up; he hit me again and knocked me down; and as I got up Harve Sansing kicked me. I was trying to get my gun. Rex hit me again with the car crank and knocked me down; as I got up I went to shooting back. I fired, four or five shots. It was an automatic gun. When Rex fell Harve grabbed me, and I hit at him with the gun. He grabbed and wrung it out of my hand and leveled the gun at me. I whirled and ran north through the woods.”

The contention that the evidence does not support the •conviction and that the verdict is contrary to the evidence is not sustained by the record. This court will not pass upon the weight of the evidence, where there is a direct conflict in. the testimony for the state and that for the defense, in order to determine whether or not the defendant was guilty as -charged. The jury are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, .and, under the evidence in this case, the defendant’s guilt or innocence was a question for the jury to determine, and they have determined it against him upon testimony sufficient to .sustain their verdict.

Another contention is that the court erred in admitting evidence tending to show that several years prior to the homicide the house of the deceased was dynamited, and that after-wards the defendant admitted that he dynamited the house -of the deceased. In our opinion the testimony objected to was properly admitted as tending to show motive. The motive with which a crime is committed is always material, and a proper subject of inquiry. That it is established by proof of -collateral matters prejudicial to the defendant does not render • the evidence incompetent. Even where the evidence of collateral facts tends to prove the commission of a distinct offense, it is nevertheless admissible if it has a direct tendency to prove motive or intent or other material facts.

Proof of the defendant’s animosity against the deceased, ■whose testimony he believed had secured the acquittal of the man who had killed his brother, was properly admitted, even ■though such acts and expressions of malice towards the deceased were long before the killing and followed by apparently friendly relations.

The defendant’s animosity might have resumed its influence and become intensified by reason of his intoxicated condition at the time of the homicide, and it is further shown that the defendant met Ealph Davidson and Charles Boswell on the road not far from the scene of the! killing about 15 or 20 minutes before the same took place and showed them his pistol and remarked:

“If you see any one down the road that wants to fight, you send them up here, and when they come up here I will send them further. ’ ’

Upon his cross-examination, the defendant admitted that he knew Harve and Eex Sansing were down the road at the time.

As to the remaining assignment, it is impossible to determine from the record what evidence was intended to be introduced, because no offer of proof was made. When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony to be introduced for the determination of this court, the record must contain some showing what the testimony of the witness would have been had he been permitted to answer the question, so that this court may determine as to whether or not it was material and competent and as. to whether or not the defendant was prejudiced by its exclusion.

Upon a careful consideration of the whole ease we are of opinion that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record.

The judgment is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: MATSON, J.

text:
    ALLEN JACKSON v. STATE.
    No. A-3820.
    Opinion Filed Jan. 6, 1923.
    (211 Pac. 1066.)
    (Syllabus.)
    1. Statutes — Title of Act — Sufficiency. It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient if the title contains a reasonable intimation of the matters undter legislative consideration.
    2. Same — Offe,nses and Penalties. A title need not disclose the means and instrumentalities provided in the body of the act for accomplishing its purpose. Provisions reasonably necessary for attaining the object of the act expressed in the title are considered as included in the title. It is ordinarily not feasible or required, that the title to an act should set forth the nature and character of the penalties for which provision is made in the body of the act.
    3. Same — Punishment Within Scope of Act Designating Crime. Punishment is so closely related to the general object of an act making anything criminal as to be clearly within its scope.
    4. Larceny — Automobiles Withdrawn from Operation of Grand Larceny Statute — Law Prescribing Punishment far Felonies not Applicable to Automobile Thefts, (a) By chapter 102, Laws 1919 (Comp. St. 1921, § 2120), automobiles and automotive driven vehicles were withdrawn from the operation of the general grand larceny statute.
    (b) The punishment for felonies prescribed by section 1507, Comp. St. 1921, cannot apply to automobile theft, for the reason that the Legislature, by the 1919 act, prescribed differently.
    5. Trial — Instructions as a Whole — Charge on Circumstantial Evidence not Misleading. Instruction on circumstantial evidence examined, and it is held: (1) That instruction on circumstantial evidence should have be;en given in this case; (2) that such instruction,, considered in its entirety, and in connection with the instructions given, is not misleading nor prejudicial.
    6. Trial — Larceny—Required Instruction on Explained Possession of Stolen Propeirty. Where there is evidence tending to explain the possession of defendant of stolen property, the trial judge Should give an instruction covering this theory of defense. Such theory is not covered by an instruction relating wholly to inferences of fact arising from unexplained- possession.

      7. Evidence — Res Gestae — Declaration of Accused Explaining Possession of Stolen Property. Any declaration made by the accused explaining the reason or character of his possession of alleged stolen property, if made while the possession lasts, is admissible as part of the res gestae for or agaihst him.
    Appeal from District Court, Garvin County; Geo. S. March, Judge.
    Allen Jackson was convicted of theft of an automobile, and he appeals.
    Reversed and remanded.
    Allen Jackson, hereinafter referred to as defendant, was convicted, in the district court of Garvin county, of the crime of theft of an automobile, and his punishment fixed as above stated.
    The evidence adduced at the trial of said cause is substantially as follows:
    On August 8, 1919, J. R. Parks, a- merchant at Doyle., Okla., owner of the alleged stolen car, a Ford roadster, 1918 model, after sundown, went in the- car to a picnic at Foster, Okla., left his car on the picnic grounds, and when he went after it about midnight it was gone. The next time Parks saw the car was at Wichita, Kan., at the police station, about the 22d of August. When he lost the car it was fairly new looking, but when he found' it it was dirty, and had a spring broken.. Parks testified that this was the same car he had lost at the Foster picnic; that the engine number had been changed by filing two numbers off; that he never knew defendant, and never saw him until he saw him in jail at Wichita, Kan.
    D. C. Stucke testified that he lived at Wichita, Kan., and was a police officer, a plain clothesman assigned to look after stolen automobiles; that, he saw defendant on August 17, 1919, at the police station; that defendant came after his car, which witness had picked up on August 16th on East Douglas avenue in Wichita, Kan., a Ford roadster, 1918 model; that the number on the ear was changed and the tag wired on, and the ear was muddy, and the front spring broken; that defendant said it was his ear; that he had bought it at Pauls Valley from a boy that was in the National Guard; said the boy’s name was E. L. Herbert, or something like that. On cross-examination the witness Stucke’ testified that defendant came to the police station voluntarily, and asked about the car, and told what his name was, and that he was from Pauls Valley.
    Charles F. Worley testified that he was the sheriff of Garvin county; that he remembered the Foster picnic,, which was on Friday, August 8, 1918; that witness attended the picnic, and left a little before sundown; on Saturday evening he learned about the car being stolen; he afterwards got a tel- ■ egram from Wichita, Kan., got a warrant for defendant, got on the train, and went to Wichita; this was on Friday or Saturday following the Foster picnic; got defendant and the tag that had been taken off the car, and brought the tag back; started back with defendant, and got as far as Paoli; had defendant handcuffed, and let him go to the toilet, and he raised the window and jumped out of the window and got away; that was about 2 o’clock in the morning, Saturday morning ; that next time witness saw defendant, defendant was in Nebraska, about the 1st or 2d of November following; at that time witness brought defendant back to Pauls Valley; witness had a conversation with defendant as to how he came in possession of the car on -the train between Wichita and Pauls Valley; defendant told witness he had bought the car' on July 20th from a fellow by the name of Hubert, and gave $250 for it; witness turned the tag that had been taken from the car oyer to Ike Mitchell. On cross-examination witness testified that in the conversation he had with defendant on the train coming back from Wichita defendant told witness that he (defendant) was up there working for somebody; that the place where the Foster picnic was held was in Gar-vin county, Okla.
    Earl Dean and Pat Evans', for the state, testified that after sundown on the night of Friday, August 8, 1919, they were at the picnic at Foster, Okla., and saw the defendant there.

      Billy Russell, witness for the state1, testified that he lived at Elmore, Okla., that some time during the year of 1919 he traded to the defendant a Ford touring car, 1916 model; that witness had applied for a license tag, but had not received the same, and agreed to call the defendant up when he got the tag from the highway department; that about midnight or after on the night of August 8, 1919, the defendant came to his house and inquired about the tag; defendant had with him a roadster ear in front and an old touring ear behind; some one was with him, but the witness did not know who it was; defendant said that he had traded the car which he had gotten from witness off for a roadster, and asked the witness for a license tag, which witness had not yet received; at a later date defendant again telephoned the witness about the tag, and said that he was going away to Shawnee and Oklahoma City, and did not tell witness that he was going to Wichita, Kan., nor ask that the tag be sent there.
    Ike Mitchell, for the state, testified .that he lived near Antioch, Okla., and had known defendant seven or eight years; that in the year of 1919 he owned a Ford ear, and had a license number or tag number on it; that in August, 1919, witness lost his tag number, and that he afterwards recovered the same from Charley Worley, sheriff of Garvin county; that he lost his tag about 20 days before defendant left the county.
    Miss Lee Gardenheim, witness for the state, testified that she lived at Antioch, Okla.; that she was a school-teacher, and that on the night of August 8, 1919, she was in the home of Allen Jackson, with his wife and two sick children, twins, about 18 months old; that Allen Jackson said he was working in the broom com; that he had not been there during the day, was not at home for slipper that night, but came in about' 11:30 or 12 o ’clock that night; witness was present when Allen Jackson again returned home on the next night; on Sunday morning defendant took the witness in a Ford roadster to her home 4% miles away; he drove the car through Antioch, a! country town with Several little stores in it.
    Bill Blium, for the state, testified that he had lived at Pauls Valley for 12 years; that he had formerly lived about three miles from defendant and his father, and knew defendant intimately; that on Friday August 8th he saw Allen Jackson.and a boy named Wiley Hulbert, who was about 18 years old, together in Pauls Valley, Okla.; that they got into a Ford' car at the depot, and went west with two women who came in from Oklahoma City; about sunup the next morning was the next time he saw defendant, who then had a;-“tolerably new” Ford roadster; defendant told him that he. had traded the old Ford touring car .for the roadster, and had given $25 difference, and that there was nothing crooked about the deal; on Saturday night witness went with defendant. in the roadster through the main street^ of Pauls Valley, Okla., to Lone schoolhouse, about 9 miles southwest of Pauls Valley; the roadster was the same car in which defendant had appeared on Saturday morning, and in which he had taken witness and other hands' back to work at the broom corn threshing at which they had been engaged on the previous Friday, the 8th of August; that after defendant’s arrest, defendant approached witness and wanted to know if witness would, swear that he had seen defendant buy this car from a soldier boy at Pauls' Valley and pay $250 cash for it; that witness refused. Witness denied that in December, or at any other time, he was in Mr. Stanley’s office, and denied that in the presence of Allen Jackson, old man Jackson, and Mr. Drigger he had a conversation with Mr. Stanley in his office about this case, in which witness said that Allen Jackson told him on Friday afternoon, August 8th, he would take two men to Foster, Okla., for $10, see his babies, return to Pauls Valley, and finish the threshing the next day ¡.witness denied that in such conversation he said that on Saturday night, August 9th, he saw Allen Jackson in front of the bakery in Pauls Valley, and that Allen Jackson there told him that he had bought a Ford roadster from a soldier man and paid $250 for it, and asked witness to drive the old five-passenger touring car back home, and let defendant drive the roadster, and that this was done; witness also denied that in that conversation witness stated that Manuel Jackson, a deputy sheriff, told witness that, if witness swore to the statements above accredited to him, witness would be slapped in jail where defendant was, and denied that he was ever in Mr. Stanley’s office in his whole life.

      Isaac Smith, for the state, testified that he lived in Pauls Valley, and had lived there about three years; that he was driving a truck for a lumber company; that he was about 20 years old; that he knew Bill Elium and Allen Jackson; that on Saturday morning, August 9th, he saw defendant on one of the main streets of Pauls Valley with one Bill Elium and MeCurley; that he went with them in a Ford roadster, practically new, to Bill Elium’s house; that from there they went to the broom corn fields to work; that Bill Elium' asked defendant where he had got the Ford roadster, and that defendant said that he traded an old Ford for it down near Wynnewood; that Bill Elium told defendant that he was “just a damn liar,” that he had stolen that car.
    On behalf of defendant, Clarence Butler testified that he lived at Antioch; was 26 years old; had known defendant some 8 or 10 years; that on Friday night following the Foster picnic witness saw Allen Jackson in Pauls Valley, over by the old courthouse, about 8 o’clock at night, standing on the sidewalk; that a stranger was with defendant, and a Ford roadster was standing near; that witness then went down town and walked around some, and then went to a show, and did not see defendant any more that night; that he saw defendant the next day in possession of a Ford roadster, and had a conversation with defendant, to the introduction of which conversation the state objected, to which, defendant excepted, and counsel for defendant thereupon offered to prove that witness would testify, if permitted to answer, that Allen Jackson told him he had bought the car from the man that-he saw him,talking to on the night before, and that he paid the sum of $250 for the car; that on the next day, Sunday, he saw Allen Jackson over at Antioch, and went with defendant to a fellow’s place over at Whiteview; that he did not know the name of the fellow; that they were driving in a Ford, and it was along about 12 o’clock; that he got with Allen Jackson that day at the sehoolhouse; that there was some kind of a meeting going on at the sehoolhouse, but witness did not remember what it was. On cross-examination, witness testified that he and defendant had been pretty close friends, and had been together “a lot;” that the fellow he saw defendant talking to in Pauls Valley wore a soldier’s uniform, and looked to be 25 or 30 years old; witness did not pay much attention to his looks; that Foster is about 20 miles southwest of Pauls Valley, and Antioch about 12 miles west; that Antioch is 9 or 10 miles from Foster; that Elmore is ¡about 6 or 8 miles from Foster.
    H. F. Hall testified for defendant that at the time of the alleged theft he was secretary of the state training school, 4y2 miles south of Pauls Valley, Okla.; that the brother of witness’ wife was married to defendant’s sister; that on August 9, 1919, a man came to him at the state training school about three or four o’clock in the afternoon, dressed in the uniform of a soldier, in a Ford roadster; but witness was not permitted to testify that the soldier tried to sell him the Ford roadster for $300. Witness further testified that about 8 o’clock that night he went to Pauls) Valley and saw defendant and this soldier man in front of the Ford Garage, and had a conversation with them; but witness was not ' permitted to testify that in that conversation he told defendant that this same man had tried to sell witness that car that afternoon, and that defendant replied that the man wanted too much money for the car, and that he was trying to get him to take a different sum; that the man and the Ford roadster is the same that he had seen at the training school that afternoon; that the soldier boy appeared to be 25 op 30 years old, pretty good size, weighing about 16.0 pounds, rather tall, but he had never seen him since the Saturday night he saw defendant talking to him; witness thinks he was light eomplex-ioned, did not remember what kind of coat he had on, or what kind of shoes, bfut did remember he had on leggings.
    J. F. Jackson, witness for defendant, testified that he was the father of defendant; that defendant lived on a farm near the witness with! his wife and two babies; that at the time of the alleged occurrence defendant was running a broom corn thresher; that defendant was at home a short time on the night of August 8th, and came home again Saturday night, August 9th; that on Saturday night, about 10 or 11 o’clock, defendant came home and told him about making a deal for an automobile; but witness was not permitted to testify that defendant had told him that he had bought the automobile in Pauls Valley for $250, and that he thought that he had gotten a good bargain. Witness further testified that on Sunday morning he saw the old Ford ear and the Ford roadster at his son’s home; that' defendant took Miss Lee Garden-heim home in the Ford roadster. Witness and the witness B. F. Drigger both testified that they were present in Mr. Stanley’s office when a conversation took place between Bill Elium and Mr. Stanley, in the presence, of the witness and Allen Jackson, in which Bill Elium said .that on Friday, August 8th, defendant told Elium that he was going to Foster to take two men there for $10; that he would come back by Antioch with some medicine for his babies; and that defendant did come to Elium’s house the next morning between sunup and daylight, and that Elium and defendant threshed broom corn all day Saturday, came back to Pauls Valley late in the evening, and that after the show that night Elium again saw defendant in Pauls Valley, and that defendant told Elium that he had bought a Ford roadster off a soldier man, and wanted Elium to drive the old Ford car back home, and that defendant could drive the roadster; that Elium got into the old Ford ear, and defendant got into the roadster, and they went out to defendant’s place and left the old Ford, and defendant took Elium in the roadster out to where he wanted to go; that in said conversation Bill Elium stated that he had talked wtih Mr. Jackson, the deputy sheriff, and that the deputy sheriff told him that, if he so testified in court, he would be in as bad a shape as defendant. On cross-examination, witness testified that he did not know where defendant had been during the day Friday until he came home about 11 o’clock that night; that witness left defendant’s home about 12 o’clock that night, and he did not know what defendant did after that until he came in Saturday night; that he did not know what kind of a car defendant drove home in Friday night; that he did not know how long defendant kept the roadster around there with reference to the time defendant took it to Wichita, Kan., but supposed it was about the next Friday, a week.
    A. N. Strong, a witness for defendant, testified that on Friday, August 8th, in the afternoon, after dismissing the school which he was teaching at the Lone schoolhouse, he started towards Pauls Valley, and met defendant traveling west towards Elmore in an old Ford car' witth some men, or two or three men (witness did not notice how many), but that no women were with them at that time.
    The defendant offered the testimony of Mrs. Allen Jackson, his wife, who testified' that on Friday night, August 8th, the defendant came home from broom corn threshing about 10 o’clock, sat up with the children, giving them medicine until about 5 o’clock Saturday morning, when he returned to his work, and again came in between 9 and 10 o’clock Saturday night, when she had a conversation with him about buying a car; but the witness was hot permitted to testify that on Saturday night the defendant told her that he had bought a Ford roadster in Pauls Valley for $250, and that he got a bargain in the same; witness saw the old car and the new Ford roadster which had not been there before on the following day, Sunday; but she was not permitted to testify that she again had a conversation with defendant on Sunday, August 10th, as to where he got the Ford roadster, and that irt such conversation her husband again told her the same account as to where he had gotten the car, and that he thought that he had made a good trade in buying the same;,that on Sunday morning defendant took Miss Gardenheim home in the Ford roadster. ' On cross-examination, witness testified that she did not know where her husband had been on Friday prior to the time he came in about 11 o ’clock that night; that there was not anything said about the Foster picnic; that she was with defendant in Nebraska at the time he was arrested up there.
    Finnis Johnson, a witness for defendant, testified that on Friday, August 8th, he saw defendant at the threshing, and that he was traveling in a five-passenger Ford; that on Saturday, August 9th, defendant was again at the same place threshing broom corn and that he came and went in the same old five-passenger Ford car which he had us'ed on the preceding day. On cross-examination, witness testified that he did not know how he fixed the Saturday that he saw the old Ford roadster out there as the 9th day of August.
    Noah Wade, a witness for defendant, testified as did Finnis Johnson, and fixed the date of his seeing defendant with the old five-passenger Ford ear as being August 9th, by a check given by witness to defendant on that day as pay for the broom corn threshing. ’ ’
    John M. Stanley and Wayne H. Lasater, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, J.

(after stating the facts as above). First, it is contended that this) prosecution must fail because the act of the Legislature upon which it is based is in violation of section 57, art. 5, of the Constitution. Said section is as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred,, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void' only as to so much of! ithe law as may not be expressed in the title thereof.”

The title and the act (chapter 102, Ses!s. Laws 1919 [section 2120, Compiled Statutes 1921]) are as follows:

“An act making it a felony to steal an automobile or other automotive driven vehicle.
“Be it enacted by the people of the state of Oklahoma: * * *
“Section 1. Any person in, this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years', nor more than twenty (20) years.”

Counsel for defendant urge that the foregoing act violates such constitutional provisions for the following reason: That the title to the act does not clearly express the subject of the act, in that no reference is- made in the title to the punishment prescribed in the body of the act. Before treating of this objection to! the constitutionality of this act, it is pertinent to make reference to some general principles on constitutional and statutory construction heretofore alluded to in opinions of this court:

“It is * * * well settled that a liberal construction should be applied to the acts of thei Legislature and constitutional provisions as well in determining whether or not such enactments violate constitutional provisions, and only when acts of the Legislature are clearly contrary to the Constitution should the court hold them invalid.”
“It is a * * * rule, recognized by all the courts, that where a statute is' subject to two constructions, one of which would render it invalid, the other sustain its validity, that construction which sustains the validity of the act should be adopted by the court, and this rule is equally applicable to titles to legislative enactment.”

In re Ambler, 11 Okla. Cir. 449, 148 Pac. 1061.

“It is a well-known canon of construction that, where the constitutionality of a statute is involved, it must appear * * * to be unconstitutional beyond a reasonable doubt. To doubt its constitutionality, is to uphold it.” State v. Wheatley, 20 Okla. Cr. 28, 200 Pac. 1004.

Also, in construing section 57, art. 5, supra, this court has held:

“ (a) It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient, if the title contains a reasonable intimation of the matters under legislative consideration, to state the subject of the bill in general terms, and with fewest words, in accordance with the general custom, to which the framers of the Constitution intended the Legislature to conform.
‘ ‘ (b) When there are numerous provisions having one general object, the title is 'sufficient if it fairly indicates the general purpose of the act. The details providing for the accomplishment of such purpose are to be regarded as necessary incidents.”

In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022.

“Section 57, art. 5, Const., providing that an act of the Legislature shall embrace but one subject, etc., has reference only to the body of the bill. The provision as to the explicitness of the title to the bill is directory and is not fatal to a measure simply because the title is broader than the act itself.” In re Ambler, supra.

Dealing more specifically with the objection urged in the instant case against the constitutionality of this- act, it is stated as a general rule of statutory construction, in 25 E. C. L. p. 858, § 104, that:

“A title need not disclose the means and instrumentalities provided in the body of the act, for accomplishing its purpose; where all the provisions áre reasonably necessary as means for attaining the object of the act indicated by the subject which is' expressed in the title they are considered as included in the title as subdivisions of the general subject there stated. It is ordinarily not feasible or required that the title to an act should set forth the nature and character of the penalties for which provision is made in the body of the act. ’ ’

In Cohn v. People, 149 Ill. 491, 37 N. E. 62, 23 L. R. A. 821, 41 Am. St. Rep. 304, the Supreme Court of Illinois held:

“The punishment of imitators or counterfeiters of trademarks may be provided for under the title of an act ‘to protect association, unions of workingmen, and persons in their labels, trade-marks, and forms of advertising.’ ”

In the body of the opinion it is said:

“It is next insisted that the statute is in violation of section 13 of article 4 of the Constitution, providing that ‘no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.’ The title of the act is ‘An act to protect associations, unions of workingmen and persons in their labels, trade-marks and forms of advertising.’ It is said by counsel that,, while there are provisions of the act designed to protect trade-marks, the provisions of sections 1, 2, 4, 6, and 7 relate to the punishment of imitators or counterfeiters, and those ..'using such imitations or counterfeits, and are enacted for protection of the owners of the labels, trade-marks, or forms of advertising, and therefore are not within the title of the act. As said in Larned v. Tiernan, 110 Ill. 177: ‘ The decisions eoneur in laying down substantially the rule that in consistency with that provision there may be included in an act means which are reasonably adapted to secure the objects indicated by the title.’ See cases there cited. When the general purpose is declared in the title, the means for its accomplishment provided by the act, will be presumed to be intended as a necessary incident. O’Leary v. Cook County, 28 Ill. 534; People v. Hazelwood, 116 Ill. 319; McGurn v. Chicago Board of Education, 133 Ill. 123. The penalties for counterfeiting and use of imitations and counterfeits, while intended as punishment for the violation of public law, are imposed to protect, in the language of the title, associations, and others entitled to use labels, trademarks, and- forms of advertisement, in the use thereof. The objection is not well taken.”

In Sykes v. People, 127 Ill. 117, 19 N. E. 705, 2 L. R. A. 461, the same court held:

“Section 25 of the Illinois Warehouse Act of 1871, imposing a penalty for issuing receipts for property not actually) in.store, is germane to and embraced within) the title: ‘An act to regulate public warehouses, and the warehousing and inspection of grain and to give effect to article 13 of the Constitution of this state.’ ”

In the body of the opinion it is said:

“The statute before referred to, and upon which said counts were predicated, is the twenty-fifth section of the act of 1871 (Starr & Curtis, par. 180, p. 1975), which is as follows: ‘Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudulent in its character either as to its date, or the quantity, quality or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger) without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the' penitentiary for not less than one and not more than ten years.’
“It is urged that this section of the statute is void, because the provisions imposing a penalty for issuing such warehouse receipts, etc., is not embraced in the title of the act. The act is entitled ‘An act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to article 13 of the Constitution of this state.’ Section 6 of the article referred to provides: ‘It shall be the duty of the General Assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give .full effect to this article of the Constitution,’ etc. It is, we think, manifest from the mere statement, that the section under consideration is germane to the purposes of the act as stated' in its title, and not, therefore, obnoxious to the objection. People v. Loewenthal, 93 Ill. 191; Magner v. People, 97 Id. 320.”

In the ease of Republic Iron & Steel Co. v. State, 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136, the Supreme Court of Indiana said:

“It is first submitted that, because the title of the act makes no mention of penalties for the violation of its provisions, the penalty clause of section 2 * * * is void under article 4, § 19, of the Indiana Constitution,_which provides that ‘every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. ’ The evident purpose in requiring a title to a legislative proposition was thereby to convey notice of the general subject to be affected to those who are called on to act upon it, and thus to prevent deception by the blending of incongruous subjects in the same act. It is only necessary that the general subject of the act be expressed — that is, be indicated — b.y the title. It is not essential that the means and' methods provided in the act for the securing of intended results and ends shall be set forth in the title. The Constitution is satisfied if the constituent means embraced in the body of the act have a proper relation to each other and to the subject expressed in the title, and are consistent, in tending to carry forward and to accomplish the general purpose indicated by the title and intended by the legislation. Isenhour v. State, 157 Ind. 517, 523, 62 N. E. 40; Lewis v. State, 148 Ind. 346, 47 N. E. 675; Benson v. Christian, 129 Ind. 535, 29 N. E. 26; Indianapolis v. Huegele, 115 Ind. 581, 18 N. E. 172. No act of the Legislature can be made effective without some reasonable provision for its enforcement, and the assessment of a penalty for noncomplianee has long and many times been recognized by the General Assembly and the courts of this state as an efficient and reasonable means of securing obedience.”

See, also, note to State v. Peyton, 234 Mo. 517, 137 S. W. 979, in Ann. Cas. 1912D, 157, where numerous cases are cited supporting the text above quoted from 25 R. C. L.

The constitutional provisions of the various states from which the cases herein cited are taken are substantially identical with section 57, article 5, of the Constitution of this state.

The reason for the rule appears to be that a penalty or punishment provided in a statute is regarded as necessary to accomplish its purpose, and therefore germane to the subject where a' crime is defined by law. It is only necessary that the title to the act shall indicate the subject of the act in a general way, and whatever details enter into the accomplishment of this general subject may be embodied in the act without specific reference in its title. Without some provision for punishment in an act making certain action criminal, or even regulatory, the act itself would be nothing more than a mere recommendation to the public. Punishment is so closely related to the general object of an act making anything criminal as to be clearly within its scope. This court is therefore of the opinion that the subject of the act here in question is expressed in the title with sufficient definiteness and clearness as not to be violative of that part of section 57, art. 5, of the Constitution of this state requiring an act of this kind to embrace but one subject, which shall be clearly expressed in its title.

The determination here made of the first contention of defendant’s counsel of necessity disposes of the questions advanced that the prosecution should have been under the general statute defining grand larceny, or else the punishment applicable to section 2120, Compiled Statutes 1921, is that provided in section 1507, Compiled Statutes 1921, which is as follows:

“Except in cases where a different punishment is prescribed by this chapter, or by some existing provisions of law, every offense declared to be felony is punishable by a fine not exceeding one thousand dollars, or by imprisonment in the state penitentiary not exceeding two years, or by both such fine and imprisonment.”

Automobiles and automotive driven vehicles were, by act of 1919 (chapter 102, supra), withdrawn from the operation of the general grand larceny statute. The punishment for felonies prescribed by section 1507, supra, cannot apply, for the reason that the Legislature, by the 1919 act, prescribed differently.

It is next urged that the trial court erred in giving the following instruction on the law of circumstantial evidence:

“You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt of the defendant — must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds á reasonable moral certainty that the accused committed the offense charged against him. And you are instructed that, when the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence. ’ ’

The foregoing instruction is copied verbatim from an instruction approved by this court in the case of Carter v. State, 6 Okla. Cr. 232, 237, 118 Pac. 264. In this case the evidence relied upon for a conviction was wholly circumstantial ; an instruction on circumstantial evidence was therefore proper. Matthews v. State, 8 Okla. Cr. 676, 130 Pac. 125. While the instruction complained of might have been couched in more positive language, we think its meaning reasonably clear, and, when considered in its entirety and in connection with the other instructions given, the jury was told in plain and unambiguous language of the state’s burden to prove the defendant guilty beyond a reasonable doubt, and that the circumstantial evidence must be so conclusive as to exclude any hypothesis other than that of defendant’s guilt.

Another instruction to the following effect is complained of:

“You are further instructed that, if you find from the evidence beyond a reasonable doubt that the car in controversy was stolen from its owner, J. R. Parks, and that soon thereafter said ear was found in the possession of the defendant, and that his possession thereof was unexplained, a matter which you are the sole and exclusive judges of, then it is proper for you to take this fact into consideration, together with all the other facts and circumstances in this case in determining whether or not the defendant is guilty of the crime charged in the information. In this1 connection, however, yon are instructed that the unexplained possession of recently stolen property, standing alone, is not sufficient to sustain the crime charged against the defendant, but, as herein stated, is only a circumstance which you may take into consideration with all the other facts and circumstances in this case in determining whether or not the defendant is guilty of the crime charged.”

The particular objection is stated by defendant’s counsel as follows:

‘ ‘ The vied of this instruction lies chiefly in- the fact that it singles out and makes prominent, without reason therefor, one of the theories and points of evidence on which the state chiefly relies for a conviction herein, while it does not set forth conversely and affirmatively the theory and evidence upon which the defendant relied as to the recent possession of the alleged stolen property; but by inference, and to the prejudice of the rights of the defendant, the court instructs the jury that there was no evidence upon the part of the defendant tending to explain his possession of the said property and justify an affirmative statement of his theory and evidence, and instructing the jury to. acquit the defendant if the jury found that such evidence were true.”

We think the trial court erred in giving the latter instruction in this case.

The possession of the alleged stolen automobile was not wholly unexplained by the defendant even under the state’s theory. The. state offered the evidence of several witnesses to the effect that on different occasions the defendant, while in the possession of the ear, had given different and conflicting versions as to how he had obtained possession thereof. The defendant offered other evidence (which was excluded) which, if admitted, would have tended to explain his possession of the car consistently with the explanation made by him at the time of his arrest.

By the foregoing instruction the trial judge indicated that there was no “explanation of possession” by the defendant. The fact that defendant did not testify in his own behalf would lead the. jury to believe from the wording of the instruction that defendant had offered no explanation of his possession of the car, and that therefore his possession remained entirely unexplained, and that such circumstance should be weighed against him. Under the evidence the trial judge should have given an instruction on the law as applicable to “explained” rather than “unexplained” possession. The injurious effect of the foregoing instruction becomes more readily apparent in this case when considered in connection with the following assignment of error relative to the exclusion of certain statements alleged to have been made by the defendant in explanation of his possession of the alleged stolen car. Certain testimony offered by the defendant was rejected by the trial court, and proper exceptions taken to such action, and proper proffer of proof made in each instance. Concerning this assignment of error, the record is as follows:

“Q. State to the jury what was said between you and Allen Jackson or the soldier man there on that occasion?
“Mr. Williams, Prosecuting Attorney: We object to that as being incompetent, irrelevant and immaterial.
“The Court: Objection sustained.
“Mr. Stanley: Exception.”

Thereupon the following was dictated to the reporter beyond the hearing of the jury, to wit:

“Mr. Stanley: If the witness were permitted to answer the question propounded to him by counsel for the defendant, he would say that about 8 or 9 o’clock in the evening of August that he drove in a car, in company with his wife, to the Ford garage in Pauls Talley, and that he saw Allen -Jackson there in conversation with a soldier; that he was the same man who came out this afternoon and wanted to sell that roadster to me; that Mr. Jackson replied that ‘He wanted too much for the car, and I am trying now to, get him to take a certain sum for it.’ ”

Offered testimony of J. S. Jackson:

“Q. Did he make any statement to you when he came in home about making a deal for an automobile? A. Yes, sir.
“Q. What did he say about it, if anything?
“Mr. Williamson: I object to any statement made by this defendant to his father on the ground that it would-be hearsay and self-serving.
“The Court: Objection sustained.
“Mr. Stanley: To which the defendant excepts.”

Thereupon the following was dictated to the reporter, beyond the hearing of the jury, to wit:

“Mr. Stanley: The defendant says this witness, if permitted to answer the question propounded, would say that Allen Jackson came in home Saturday night on the night of the 9th of August, 1919, one day subsequent to the time it is alleged that he had stolen said automobile; that he would say that the defendant said that he had bought the'automobile in Pauls Talley for which he had paid the sum of $250, and that he had gotten a bargain in the same. ’ ’

Offered testimony of Mrs. Allen Jackson:

“Q. State to the jury what conversation you had with your husband in reference to a Ford roadster that he had bought and brought in that night.
"Mr. Osborn: Objected to on the ground that any conversation between Mrs. Jacks'on and her husband would be self-serving in its nature.
"Mr. Stanley: Possession of recently stolen property, can always be explained.
"The Court:. Objection sustained.
"Mr. Stanley: Exceptions.”

Théreupon the following was dictated to the reporter beyond the hearing of the jury, to wit:

"Mr. Stanley: If this' witness were permitted to answer the question above propounded, she would say that when her husband came in Saturday night, the 9th of August, the day subsequent to the day on which the automobile was alleged to have been stolen, that her husband told her that he had bought a Ford roadster from a man in Pauls Valley for which he paid $250, and that he got a bargain in the same.
"Q. State to the jury what the conversation was.
"Mr. Williamson:' Objected to on the ground that it is incompetent, irrelevant, immaterial, and self-serving.
"The Court: Objection sustained.
"Mr: Stanley: Exception.”

Thereupon) there was dictated to the reporter beyond the hearing of the jury, the following, to wit:

"Mr. Stanley: If the witness were permitted to answer this question she would say that she and her husband had a conversation Sunday morning following the day on which the ear was alleged to have been stolen and that her husband had gone on and told her where he had gotten the car, and that he thought he had made a good deal in buying the same.”

The evidence offered by the witness Hall of the statement of defendant to him was inadmissible and properly excluded because the defendant was not shown to be in possession of the ear at that time. The evidence offered by the witnesses J. S. Jackson and Mrs. Allen Jackson was admissible, and should not have been excluded, as the statement to the wife was apparently made when J. S. Jackson was present..

Prof. Wigmore states the rule under which such utterances aire admissible as follows (Wigmore on Evidence, vol. 3, § 1781, subd. 4):

“Recent possession of stolen goods raises a presumption that the possessor is the thief or robber or knowing receiver (as the charge may be). Even though the strict effect of this fact as raising a presumption and casting on the defendant the duty of producing evidence may be removed by his producing some evidence to the contrary, still the fact of possession remains for the jury’s1 consideration as capable of the inference of guilt. Now the inference from the fact of possession will be stronger or weaker, according as the possession was not or was in good faith; if a possession in good faith can be made to appear, the inference that the possessor was himself the robber or the thief or the knowing receiver can hardly be strong. Thus, the total significance of the act of possession becomes material; and upon the principle of verbal acts the utterances of the person while in possession may be received as verbal acts (or, in the common judicial phrase, as ‘explanatory of possession’), though not as hearsay assertions to evidence the fact asserted;. On this principle it would be immaterial what the tenor of the utterance was — whether a claim or a disclaimer of ownership, or an explanation of finding or of purchase or, of borrowing, provided only it indicated the intent of the possession. It would also be immaterial that it was made before arrest, or discovery of the goods, or claim made or suspicion raised, or that it was made after arrest or discovery or claim' or suspicion, provided only that it was made during possession.”

Underhill in his work on Criminal Evidence (section 302) says the following:

‘Any declaration made by the accused explaining the reason or character of his possession, if made while.it lasts, is admissible as part of the res gestae for or against him.”

In Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726, this court held:

“In a prosecution for larceny, what the defendant said in explanation of his possession of a part of the stolen goods, immediately upon its discovery with him, is; a part of the res gestae, and as such admissible in evidence in his favor as well as adversely to him.”

See, also, the following: Bryant v. State, 116 Ala. 445, 23 South. 40; People v. Cline, 74 Cal. 575, 16 Pac. 391; Lovett v. State, 80 Ga. 255, 4 S. E. 912; State v. Gabriel, 88 Mo. 631; Goens v. State, 35 Tex. Cr. R. 73, 31 S. W. 656.

The error in excluding this proffered evidence appears particularly prejudicial in view' of the fact that the trial judge permitted the state by the witnesses Bill Elium and Isaac Smith to prove that, defendant, on the very day the declarations were alleged to have been made to J. S. Jackson and Mrs. Allen Jackson, stated to them that he procured the Ford roadster in a trade with a man at Wynnewood, Okla., and gave $25 to boot .and his old Ford touring car. The alleged statement to Elium and Smith was directly in contradiction to what the defendant had stated to the officers at the time of his arrest.

Having permitted the state to prove this apparently contradictory statement, the defendant should have been allowed to show that at about the same time he made to others statements consistent with that made at the time of his arrest. The jury then would have had all thé alleged utterances of the defendant concerning the explanation of his possession of the alleged stolen car before them, and would have been in a position to determine correctly, after considering all these circumstances, which of the witnesses to believe and which to disbelieve* Also! the jury wonld have been in a position better to judge of the reasonableness of defendant’s explanátion of possession of the stolen property made at the time of his arrest.

Adhering to the views herein expressed, which find support in the weight of modem authority on the subject, we conclude that a new trial should be granted defendant.

For reasons stated, the judgment of conviction is reversed, and the' cause remanded to the district court of Gar-vin county, with instructions to grant defendant a new trial, and for further proceedings not inconsistent with this opinion.

DOYLE, P: J., and BESSEY,' J., concur.


text:
    BAILEY GAUNCE v. STATE.
    No. A-3868.
    Opinion Filed Jan. 6, 1923.
    (211 Pac. 517.)
    (Syllabus.)
    1. Homicide — Justifiable and Excusable Homicide Distinguished. Justifiable and excusable homicide distinguished.
    2. Homicide — Refusal of instruction on Excusable Homicide not Erroir Where no Evidence on Issue. Under the circumstances here the court committed no error in failing to instruct the jury defining the elements of excusable homicide.
    Appeal from. District Court, Carter County; Thos. W. Champion, Judge.
    Bailey Gaunce was convicted of manslaughter in the second degree, and; he appeals.
    Affirmed.
    Champion & George, for plaintiff in error.
    Geo. F. Short,' Atty.'Gen., and R. E. Wood, Asst. Atty. Gen., for thé State. ' '
   BESSEY, J.

The plaintiff in error, Bailey Gannce, herein called the defendant, was by information filed in the district court of Carter county, charged with the murder of Charley Thompson on the 14th day of September, 1919. At the trial, on April 14, 1920, by a verdict of the jury defendant was found guilty of manslaughter in the second degree, and his punishment assessed at confinement in the eounty jail for a period of three months, and a fine of $500. From the judgment rendered on this verdict defendant appeals.

At the time of the homicide defendant was ’ about 38 years of age and had resided in the oil fields of Carter county for about 6 years; on the day of the tragedy he was in the town of Wirt, and was sitting in the front seat of a car in which he had been riding, and which was parked on the main street of the town, near the sidewalk. The deceased, Charley Thompson, lived at Ringling, Okla., and was in Wirt on that day. The deceased had been drinking during the day, and just prior to the difficulty with the defendant had engaged in a fight with a man known as Toledo Jack, a returned soldier. Bystanders had separated the deceased and Toledo Jack, and had taken the latter aside, leaving the deceased standing near the car. in which defendant was sitting, when the defendant began to remonstrate with the deceased, telling him that he should not have struck the boy. The deceased then replied to the defendant, “Maybe you want to take it up,” or words to that effect, as testified to by a number of witnesses, whereupon, according to a number of witnesses for the state, defendant opened the door of the car and sprang at the deceased, striking him in the side of the head with his fist and knocking Mm prostrate upon the sidewalk, breaking Ms neck and resulting in almost instant death. According to several witnesses he continued striking and kicking the deceased after he was down. The defendant then got into the car and drove away. The facts as above stated were in some respects corroborated by witnesses for tbe defendant.

The defendant’s account of the final difficulty was as follows:

“A. He then looked at me and said, ‘Well, maybe yon want some of it.’ I said, ‘No; I am not looking for anything like that.’ ‘Well,’ he said, ‘I will just give you some of it, you d-s-of a b-,’ and he reached over and unlatched the door and reached for me.
“Q. What door is that? A. The car door.
“Q. What effect did that have on the door? A. The door opened and pulled right back; he had hold of me; he tried to catch me b'y the collar, and he got me by the lapel of the coat, and I was sitting down, and tried to jerk loose from him. I didn’t until I hit the ground, then I knocked him loose. He fought back at me. I guess we were 10 feet from the sidewalk; he kept coming on me, and I saw he was drunk. I didn’t want any trouble -with him, but he kept coming on me, and kept crowding me back to the sidewalk until I saw I had to do something, and I hit him.
“Q. Why did you hit him? A. I hit him to keep him from hurting me.
“Q. Was he fighting you at the time? A. Yes, sir.
“Q. Did you intend to kill him? A. No, sir. I didn’t even intend to fight him if I could get around it, but I couldn’t avoid it.”

The evidence on both sides, with the possible exception of the testimony of the defendant himself, shows that there was a mutual combat between the deceased and the defendant; that the deceased was in an intoxicated condition, and the defendant was sober; that in that mutual combat the defendant exercised'a force beyond that which was necessary to repel the efforts of the enfeebled belligerent to do the defendant bodily harm.

, The only assignment of error seriously urged in defendant’s brief is that designated at No. 8 in his petition' in error, viz., that the verdict of the jury is contrary to both the law and the evidence. Under this assignment of error it is urged that the court should have instructed the jury upon excusable homicide.

There is an important difference between justifiable homicide and excusable homicide, as defined by our Compiled Statutes 1921, sees. 1752, 1753. Justifiable homicide is the taking of human life under circumstances! of justification, as a matter of right, such as self-defense, or other causes set out in the statute. Excusable homicide is where death results from a lawful act by lawful means, accomplished accidentally or by misfortune or misadventure, or so accomplished with sufficient provocation, with no undue advantage and without unnecessary - cruel treatment. Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

The word “misfortune” as here used is analogous to the word “misadventure,” as defined in volume 2, Third Revision, Bouvier’s Law Dictionary 2221, as follows:

“When applied to homicide, misadventure is the act of a man who, in the performance of a lawful act, without any intention to do harm, and after using proper precaution to prevent danger, unfortunately kills another person.”

The constituent elements of excusable homicide are three, viz.: First, ¡absence of an intent to do harm; second, the lawfulness of the act resulting in death; third, proper precaution to avoid mischief. Notes, annotations and citations, 3 L. R. A1. (N. S.) 1153. For example, if a workman in a town was on a house and threw off a scantling, and gave due notice of the intent to throw it, and it hit some one and killed him, that would be an accident, and he should go free; but if a workman in a town should throw a piece of scantling or other heavy substance off a house into a street where people were passing, and it should strike and kill some one, this would be manslaughter.'

From the statement of facts it will be seen that in this ease there was no issue of excusable homicide. The issue of justifiable homicide was fairly submitted to the jury, without exception or objection or any request for other or further instructions on the part of the defendant. It follows therefore that the assignments of error leveled at the instructions are without merit.

According to the great weight of the testimony the defendant voluntarily entered into' an affray in which he had no interest, and assaulted the deceased in a wanton and reckless manner, amounting to manslaughter in the second degree. Excepting the testimony of the defendant himself there was little evidence to support the plea of self-defense. The defendant was the aggressor, and he intentionally struck the deceased viciously and with such violence as to break his neck, and after deceased lay prostrate followed up the assault by striking and kicking him about the head and face.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSOÑ, J., concur.