text:
    STATE v. L. C. HOUSE.
    No. A-2613.
    Opinion Filed June 16, 1921.
    (198 Pac. 888.)
    (Syllabus.)
    Sunday — Conducting Picture Show Not “Servile Labor.” Ordinarily, the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show is not “servile-labor,” and not prohibited within the meaning of section 2404, Rev. Laws 1910, and the first subdivision of section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Coal County; P. E. Wilhelm,, Judge.
    L. C. House was by information charged with Sabbathi breaking. A demurrer to the information was sustained, and. the State appeals.
    Affirmed.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen.., and Geo. T. Ralls. Co. Atty., of Coalgate, for the State.
    Trice & Moore, for defendant in error.
   BESSEY, J.

L. C. House was by information, filed October 18, 1915, charged with Sabbath breaking by conducting a moving picture show on Sunday. To this information he interposed a demurrer, which was by the court sustained, and the state appeals. The charging part of the information is as follows:

"That he, the said L. C. House, did willfully and unlawfully keep open, run, operate, engage in and carry on his moving picture show in Coalgate, Okla., on the first day of the week, and the Lord’s Day, which is commonly called Sunday, for the purpose of carrying on and doing business by running said moving picture show on said date, said business being the usual trade carried on by said defendant, and that the said defendant did charge and receive and collect an admittance fee of ten cents of and from all persons who entered said moving picture show and witnessed the said show. That the keeping, running, operating, managing and carrying on said moving picture show was for money and for profit and' gain, and was defendant’s means of making a livelihood, and was a continuation of defendant’s usual trade and business during the¡ week; the same not being a work or trade of charity or necessity, contrary to the form of the statutes in such eases made and provided, and against the peace and dignity of the state.’’

The defendant interposed a demurrer to the information on the ground that the allegations contained in said information were insufficient to show any offense against the laws of the state of Oklahoma. The court sustained the demurrer, and the state refused to plead further. Whereupon the court rendered judgment, dismissing the cause, and the state prosecutes the appeal from the order and judgment sustaining the demurrer and dismissing the cause.

The issues here involved are similar to those decided in the case of State v. Clint Smith, A-2497, 19 Okla. Cr. 184, 198 Pac. 879, recently decided, and for the reasons there given the order and judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not sitting.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    A. L. RAMSEY v. STATE.
    No. A-3444.
    Opinion Filed June 16, 1921.
    (198 Pac. 887.)
    (Syllabus.)
    ■Sunday — Conducting Picture Show Not “Servile Labor.” Ordinarily, the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show is not "servile labor,” and not prohibited, within the meaning of section 2404, Rev. Laws 1910, and the first subdivision of section 2405, Rev. Laws 1910, as amended by Laws 1913, c. 204.
    Appeal from County Court, Washington County; Tom 'George, Judge pro tern.
    A. L. Ramsey was convicted of Sabbath breaking, and he appeals.
    Reversed.
    Craver & Iíeyl and J. R. Charlton and J. C. Daugherty, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. G-en., for the State.
   BESSEY, J.

The information charged, in substance, that -on Sunday, December 16, 1917, A. L. Ramsey willfully and unlawfully performed servile labor in opening, managing, ■conducting and operating a moving picture show by selling tickets of admission, admitting divers persons thereto, and ■operating a certain film machine therein, which servile labor -was not a work of necessity or charity.

The evidence discloses that the defendant on the day alleged sold tickets and admitted divers persons to a moving picture show in Dewey, Okla.; there was no evidence that the defendant owned or conducted the show, or that he had anything to do with the operating of the film machine.

At the close of the testimony the defendant asked for a peremptory instruction, acquitting the defendant on the ground that the testimony failed to show the commission of the crime charged or any crime. This application was overruled, and an exception was reserved and allowed. Covering the same points, certain instructions, not necessary here to recite, were requested by the defendant and refused by the court, to which exceptions were also taken and allowed. Exceptions were also saved to the instructions given.

The issues here involved are the same as decided in the case of State v. Clint Smith No. A-2497, 19 Okla. Cr. 184, 198 Pac. 879, recently decided, and for the reasons there given this case is reversed, and the cause below is ordered dismissed.

DOYLE, P. J., concurs. MATSON, J., disqualified and not sitting.


text:
    A. L. RAMSEY v. STATE.
    No. A-3445.
    Opinion Filed June 16, 1921.
    (198 Pac. 888.)
    (Syllabus.)
    Sunday — Conducting Picture Show Not “Servile Labor.” Ordinarily, the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show is not “servile labor,” and not prohibited, within the meaning of section 2404, Rev. Laws 1910, and the first subdivision of section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Washington County; Tom George, Judge pro tern.

      A. L. Ramsey was convicted of Sabbath breaking, and he appeals.
    Reversed.
    Craver & Heyl and J. R. Charlton and J. C. Daugherty, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The information charged, in substance, that on Sunday, December 23, 1917, A. L. Ramsey willfully and unlawfully performed servile labor in opening, managing, conducting, and operating a moving picture show by selling tickets of admission, admitting divers persons thereto, and operating a certain film machine therein, which servile labor was not a work of necessity or charity.

To this information a demurrer was filed by the defendant, on the ground that the information failed to state a public offense, and that the facts recited therein did not constitute servile labor within the meaning of the statutes of Oklahoma. This demurrer was overruled, and the defendant allowed an exception.

The evidence discloses that the defendant on the day alleged sold tickets and admitted divers persons to a moving picture show in Dewey, Okla.; there was no evidence that the defendant owned or - conducted the show, or that he had anything to do with the operating of the film machine.

At the close of the testimony the defendant aske'd for a peremptory instruction, acquitting the defendant on the ground that the testimony failed to show the commission of the crime charged, or any crime. This application was overruled, and an exception was reserved and allowed. Covering the same points, certain instructions not necessary here to recite were requested by the defendant and refused by the court, to which exceptions were saved. Exceptions were also taken and allowed to the instructions given.

The issues here involved are the same as decided in the case of State v. Clint Smith, No. A-2497, 19 Okla. Cr. 184, 198 Pac. 879, recently decided, and for the reasons there given this case is reversed, and the cause below is ordered dismissed. I

DOYLE, P. J., concurs.

MATSON, J., disqualified and not sitting.


text:
    A. L. RAMSEY v. STATE.
    No. A-3443.
    Opinion Filed June 16, 1921.
    (198 Pac. 886.)
    (Syllabus.)
    Sunday — Conducting Picture Show Not “Servile Labor.” Ordinarily, the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show is not “servile labor,” and not prohibited, within the meaning of section 2404, Rev. Laws 1910, and the first subdivision of section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Washington County; Tom George, Judge pro tern.
    A. L. Ramsey was convicted of Sabbath,, breaking, and he appeals.
    Reversed.
    Craver & Heyl and J. R. Charlton and J. C. Daugherty, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The information charged, in substance, that on Sunday, the 9th day of December, 1917, A. L. Ramsey willfully and unlawfully performed servile labor in opening, managing, conducting, and operating a moving picture show by selling tickets of admission admitting divers persons thereto, and operating a certain film machine therein, which servile labor was not a work of necessity or charity.

To this information a demurrer was filed by the defendant, on the ground that the information failed to state a public offense, and the facts recited therein did not constitute servile labor, within the meaning of the statutes of Oklahoma. The demurrer was overruled, and the defendant allowed an exception.

The evidence discloses that the defendant on the” day alleged sold tickets and admitted divers persons to a moving picture show in Dewey, Okla.; there was no evidence that the defendant owned or conducted the show, or that he had anything to do with operation of the film machine.

At the close of the testimony the defendant asked for a peremptory instruction, acquitting the defendant on the ground that the testimony faded to show the commission of the crime charged or any crime. The application was overruled, and an exception was reserved and allowed. Covering the same points, certain instructions, not necessary here to recite, were requested by the defendant and refused by the court, to which exceptions were saved. Exceptions were also taken and allowed to the instructions given.

The issues here involved are the same as decided in the case of State v. Clint Smith, 19 Okla. Cr. 184, 198 Pae. 879, recently decided, and for th ereasons there given this case is reversed, and the cause below is ordered dismissed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not sitting.


text:
    A. L. TREESE v. STATE.
    No. A-3600.
    Opinion Filed June 16, 1921.
    (198 Pac. 889.)
    (Syllabus.)
    Sunday — Operating Picture Show — Lawfulness. Ordinarily, the selling of tickets and the managing and operating of a moving picture show on Sunday is not “servile labor,” nor “selling, offering or exposing for sale of any commodity,” within the meaning of section 2404, Rev. Laws 1910, and section 2405, as amended by Laws 1913, c. 204.
    Appeal from County Court, Payne County; "Wilberforee Jones, Judge.
    A. L. Treese was convicted of Sabbath breaking, and he appeals.
    Reversed.
    "Walter Mathews, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The amended information, upon which the defendant was tried, charged in substance that on Sunday, February 9, 1919, the defendant, A. L. Treese, willfully and unlawfully, in the city of Cushing, kept open, superintended, and managed a public picture show, and that he then and there sold to the public, for gain and profit, the privilege of admission to such show for the sum of 20 cents; and that he compelled his servants and employees, under his charge and control, to perform servile labor in conducting such show, and that such services were not works of necessity or charity.

To this information, so amended, a demurrer was filed by the defendant, alleging that the information did not state facts sufficient to constitute a public offense; that more than one offense was charged in the amended information; that the things charged therein as being sold or offered or exposed for sale were not a commodity; that the work done did not constitute servile labor; and that the act or omission charged is not clearly and distinctly set forth in ordinary and concise language, with such a degree of certainty and in such manner as to enable the defendant to understandingly know what is intended, or to enable the court to pronounce judgment upon a conviction according to the right in the case. This demurrer was by the court overruled, and the defendant allowed an exception.

The evidence disclosed that the defendant, on the Sunday alleged in the amended information, for a money consideration, admitted divers persons to a moving picture show in Cushing, Okla., there being operated and managed by the defendant. At the close of the testimony the defendant asked the court for a peremptory instruction, directing the jury to return a verdict of not guilty, for the reason that the allegations of the information and the testimony introduced failed to show that a crime had been committed. This motion was overruled, and an exception reserved and allowed. The court thereafter instructed the jury that to keep open, manage, and superintend a theater and sell tickets therefor on Sunday is servile labor, within the meaning of the law. The court further instructed the jury that all manner of public selling, or offering or exposing for sale of any commodity, with certain exceptions not necessary to notice here, is a punishable offense under our Sunday statute. These, and other instructions given, were excepted to by the defendant, and exceptions allowed by the court.

The issues here involved are similar to those decided in the case af State v. Clint Smith, 19 Okla. Cr. 184, 198 Pac. 879, just handed down by this court, except that in this case it seems to have been the contention of the county attorney and the trial judge that the selling of theater tickets was the sale of a commodity or privilege, within the meaning of subdivision 4, § 2405, R. L. 1910, as amended by act of Hay 17, 1913 (chapter 204).

Webster’s New International Dictionary defines the word, “commodity,” in the sense here used, as “a parcel or quantity of goods, including everything movable that is bought, or sold, as goods, wares, merchandise, products of land and manufactures.” Black’s Law Dictionary defines the term as. “goods, wares, and merchandise of any kind; movables; articles of trade or eommere.”

Applying these definitions and the context of subdivision 4, section 2405, supra, where the term “commodity” is used in connection with the sale of medicine, bread, meats, ice, drugs, etc., it would appear that the word does mot refer to. the sale of a privilege to attend a moving picture show.

The question of whether or not the sale of tickets to and the conducting and managing of a picture show is servile-labor is discussed at length in the case of*the State v. Clint Smith, supra, in which we held that such acts and conduct was not servile labor within the meaning of the statutes. Nor the reasons there given, and for the reasons herein stated, this case is reversed, and the cause below ordered dismissed.

DOYLE, P. J., concurs.

MATSON, J., disqualified and not participating.


author: DOYLE, P. J.

text:
    JOE COLLINS HODGES v. STATE.
    No. A-3555.
    Opinion Filed June 16, 1921.
    (198 Pac. 622.)
    (Syllabus.)
    Appeal and Error — Dismissal — Acceptance of Parole. When .an appeal from a judgment of conviction is pending in this court, and the appellant is granted a parole and accepts , the same, and the fact that a parole has been granted and- accepted is brought to the attention of the' court, the appeal will ’be-dismissed as having been abandoned.
    Appeal from District Court, Oklahoma Couuty; Geo. W. Clark, Judge.

      Joe Collins Hodges was convicted of larceny of an auto-anobile, and lie appeals.
    Appeal dismissed, and cause remanded.
    Pruiett, Sniggs & Patterson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On May 22, 1918, an information was filed in the district court of Oklahoma county, charging appellant, Joe Collins Hodges, alias Joe Collins, and Alford Lester A’Day, alias Alford Walters, with the larceny of one 1918 .model, five-passenger Ford automobile, of the value of $501, 'the personal property of the Oklahoma Farm Mortgage Com-jpany, a private corporation.

Upon their trial appellant, Joe Collins Hodges, was found "guilty and his punishment fixed at imprisonment in the penitentiary for the term of two years and six months. From the judgment rendered November 30, 1918, upon such conviction, an appeal was taken by filing in this court on May 28, 1919, a petition in error, to which was attached a transcript •of the record proper.

The appellant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed. When the case was called for final submission it was suggested that pending the determination of the appeal, •on December 24, 1920, the Governor had granted a pardon or parole to appellant, which was by him accepted, and that the appeal had been abandoned.

It has been uniformly held by this court that when an ••appeal from a judgment of conviction is pending, and the appellant applies for a pardon or parole, and the same is granted and accepted by the appellant, and the fact that the same has ’-been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned..

The appeal herein is therefore dismissed, and the cause remanded to the trial court.

MATSON and BESSEY, JJ., concur.


author: MATSON, J.

text:
    CHARLES KILLION v. STATE.
    No. A-3664.
    Opinion Filed June 18, 1921.
    (198 Pac. 625.)
    (Syllabus.)
    1. Robbery — Information—Sufficiency, For information held’ to,, state a sufficient charge of robbery, see body of opinion.
    2. Appeal and Error — Discretion of Trial Court — Continuance. Applications for a continuance are addressed to the discretion of the trial court, and the trial court’s action in overruling a motiods for a continuance on account of absent witnesses will not be.disturbed unless a manifest abuse of discretion appears.
    Appeal from District Court, Washington County; Preston A. Shinn, Judge.
    Charles Killion was convicted of robbery, and he appeals,.
    Affirmed.
    J. R. Charlton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty.. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Washington county, wherein on the 29th day of May, 1919, plaintiff in error, Charles Killion, hereinafter designated defendant, was convicted of the crime of robbery, and sentenced! to serve a term of 10 years’ imprisonment in the state penitentiary.

From the judgment rendered against him he has appealed to this court, and relies for reversal on the following assignments of error: (1) That the court erred in not sustaining the 'demurrer to the information; and (2) that the court erred in «overruling the motion for a continuance.

The case-made as originally filed contained an incomplete copy of the amended information. The Attorney General, on May 24, 1921, filed a motion in this court to correct the case-anade by insertion of a correct copy of the amended informa-iion. In reply to said motion, counsel for defendant has admitted that the copy of the amended information contained in the original case-made was defective, and joins in the request of the Attorney General that the same be corrected. Upon said motion and agreement of counsel for defendant, this court made an order correcting the case-made by insertion therein of a correct copy of the aménded information.

The amended information, upon which the cause was tried, reads as follows:

“Now comes W. B. Allen, the duly qualified and acting ■county attorney, in and for Washington county, state of Oklahoma, and gives the district court of Washington county, state of Oklahoma, to know and be informed that Charlie Killion ■did, in Washington county, and in the state of Oklahoma, on or about the 30th day of March, in the year of our Lord one thousand nine hundred and nineteen, and anterior to the presentment hereof, commit the crime of robbery in the first degree in the manner and form as follows: That in the county and state aforesaid,. the said Charlie Killion, on the day and year aforesaid, did knowingly, willfully, unlawfully wrongfully' and feloniously, make an assault in and upon Fred Stepp, J. M. Ernest, Warnie Catlin, Bud Stepp and R. E.. Henson and others, with a certain weapon, to wit, a revolver, then and there had in the hands of him, the said 'Charlie Killion, and did then and there and thereby putting the said Fred Stepp, J. M.- Ernest, Warnie Catlin, Bud ■Stepp and R. E. Henson and others in fear of an immediate injury to their lives and persons by threatening to shoot them, the said Fred Stepp, J. M. Ernest, Warnie Catlin, Bud Stepp ,.and R. E. Henson and others, and did then and there by the use of said force and putting in fear unlawfully, willfully, wrongfully and feloniously and against the will of them, the said Fred Stepp, J. M. Ernest, Warnie Catlin, Bud Stepp and R. E. Henson and others, take, steal and carry away from the possession and persons of them the said Fred Stepp, J. M.. Ernest, Warnie Catlin, Bud Stepp and R. E. Henson and. others, certain personal property, to wit, $97.00 good and lawful money of the United States, with the unlawful, wrongful and felonious intent then and there on the part of him the said Charlie Bullion to rob and deprive the said Fred. Stepp, J. M. Ernest, Warnie Catlin, Bud Stepp and R. E. Henson and others of the said property and convert the same: to the use and benefit of him the said Charlie Killion, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
“Robbery” is defined by section 2364, Revised Laws 1910, as follows:
“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

In the opinion of the court the amended information contains a sufficient charge of robbery as defined by said section.

The motion for continuance was based on the ground of the absence of certain alleged material witnesses for defendant. After an examination of the motion, this court is convinced that the trial court properly overruled the same. There is no sufficient showing of diligence used to obtain these witnesses, nor is there a showing of facts indicating that there is any reasonable likelihood of obtaniing the attendance of these witnesses or their testimony in behalf of defendant at any future date to which the cause might have been continued. We find no abuse of discretion on the part of the trial court in overruling the motion.

Upon the whole record, the conclusion is reached that defendant was fairly tried and properly convicted.

The judgment is affirmed.

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


text:
    JOHN COPPEDGE v. STATE.
    No. A-3597.
    Opinion Filed June 18, 1921.
    (198 Pac. 623.)
    (Syllabus.)
    Homicide — Manslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree, and that no material error was committed on the trial.
    Appeal from District Court, Hughes County; Geo. C. Crump, Judge.
    John Coppedge was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    J. L. Skinner and Anglin & Hall, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On November 18, 1919, an information was filed in the district court of Hughes county, charging appellant, John Coppedge, and his brother, Will Coppedge, .jointly, with the crime of murder for having killed one Carl Morris in said county on or about the 4th day of October, 1918. Appellant asked and was given a separate trial, which ¡resulted in his conviction of manslaughter in the first degree, leaving the punishment to be fixed by the court. The motion for a new trial was overruled, and on April 19, 1919, the court rendered judgment and sentenced appellant to imprisonment in the penitentiary for the term of 15 years. From the judgment he appeals. The errors assigned are:

(1) That the court erred in overruling the motion for new trial.

(2) That the verdict of the jury was contrary to law and the evidence. '

(3) That the court admitted incompetent testimony^ against the defendant and rejected competent and material: testimony offered by the defendant.

(4) That the court erroneously instructed the jury.

No brief has been filed on behalf of appellant, and we-have not been favored with an oral argument in Ms behalf;,however, we have carefully examined the record for alleged;, errors upon which this appeal is based. It appears that the-parties were all farmers and lived neighbors; that the appellant and his co defendant married sisters of Carl Morris, the.deceased; that appellant and the wife of the deceased had. been criminally intimate, and a short time before the homicide-they each admitted this fact to the deceased in the presence-of each other; that just before sundown on the date alleged: appellant and Ms brother drove into a wagon yard in Hold-enville; that Carl Morris, the deceased, walked through the gate, and appellant, standing in the wagon, fired the fatal shot.

Briefly stated, the testimony with reference to the killing was as follows:

W. G-. Blankenship, a farmer, who it appears was not acquainted with any of the parties, testified:

“I saw the defendants drive in with a bale of cotton-, standing on end in their wagon. One jumped off the wagon and the other was standing by the cotton bale facing the gate;; as I walked away I passed the man that was shot. He was: walking along eating an apple. Within a minute I heard the shot and returned to the yard. The man was lying four or-five steps within the gate. He had a gunshot wound in the forehead. He never spoke. He was lying 15 or 20 steps from the wagon. ’ ’

Will Dial testified:

“I was there when the defendants drove into the yard. I heard Will Coppedge say to John Coppedge, ‘You do what I told you to do.’ There was a bale of cotton in the wagon. I was standing at the head of the team unhitching when John / Coppedge, standing behind the cotton bale, shot Carl Morris. He was about 50 feet from the wagon when he fell. John Coppedge jumped out of the wagon and ran up to where he was lying and cocked the gun, and then I went under the shed. ’ ’

R. C. Brown testified:

“I am a farmer, living seven miles southwest of here. I was in the wagon yard, but my back was turned when the shot was fired. I was about halfway between this wagon and where the man fell. I saw the defendant with a gun after the shot was fired. He was on the ground pulling the hammer back on his gun and walked toward the man that was down; it was about 18 to 20 steps from the wagon to where the man was lying; I did not know any of the parties at that time. ’ ’

Toney Ashland testified:

“I live in Seminole county; I was standing near the camp house in the wagon yard when John Coppedge shot Carl Morris. I heard Will Coppedge say to John Coppedge, ‘Go and see if the son of a bitch is dead. ’ John got out of the wagon, and I went into the barn. Carl Morris was in his shirt sleeves.”

E. W. Morris testified:

“I was on my way to the wagon yard when I heard the shot fired. I walked in and saw a man nearly dead with a gunshot wound over the right eye. I picked up a piece of apple that was lying near his left hand. It had been freshly cut.” .

Price Ashland testified:

“I was something like six steps from the Coppedge wagon when Carl Morris was shot. I saw the Coppedge boys drive in the yard with a bale of cotton standing on end in the wagon. Will got out. John stayed in the wagon. I saw Carl Morris when he had taken a step or two into the yard. He was walking along like anybody would walk. The shot fired, and I saw him fall. John Coppedge was standing up in the wagon with a bale of cotton between him and Carl Morris. John Coppedge jumped off of the wagon, and Will Cop-pedge says, ‘Go and see if the damn son of a bitch is dead.’ Carl Morris was 15 to 18 steps from the wagon when John shot him.”

For the defense Will Coppedge testified:

‘ ‘ The day of the killing I brought a bale of cotton to town. Late in the evening I was sitting on the curb. My brother was standing on his wagon in front of the American National Bank selling a bale of cotton. He called me, and I went over and got in his wagon. Mr. Loftis said it was too late to weigh the cotton, and we decided to go to the wagon yard and wait until morning to weigh the cotton. He handed me the lines, and we started to the McDonald wagon yard. Near Dennis’ corner Carl Morris stepped towards us and shook his fist at us. I drove into the wagon yard and got out of the wagon. John started to get out, and I said, ‘You do what I told you to do.’ Bill Dial, a brother-in-law to Carl Morris was there, and said, ‘Will, what is the matter?’ and I says, ‘Carl is trying to kill John,’ he said, ‘Can’t it be stopped?’ We were unhitching the mules. John was standing next to the bale of cotton. The gun fired, and I looked around and saw Carl fall. ’ ’

As a witness in his own behalf the defendant testified:

‘‘I am 33 years old; brother-in-law to Carl Morris, the deceased. I bought a bale of cotton to town that day and stopped in front of the American National Bank. I saw my brother, Will, and called him and asked him to go to the compress with me. The bale of cotton was in the back end of the wagon. Mr. Loftis wrote me a ticket and said, ‘You can’t get that cotton weighed now; it is too late. ’ The sun was not down. We drove on down to the wagon yard, and just before we got^ there I saw Carl Morris standing on the comer. As we went by he stepped out six or seven steps, shook his fist and said, ‘Damn you,’ or something like that. I said, ‘Will, drive up and let’s get away from here, Carl is here to kill me.’ Will says, 'I will drive down to the yard; you stay in the wagon and I will stop it.’ Carl took out after us. Will drove into the yard and jumped off the wagon and says, 'You do as I told you; now stay in the wagon.’ About that time Will Dial walked up and said, 'What is the matter here?’ I stepped back by the side of the bale of cotton where I could watch the gate; Carl Morris came in the gate and reached back like he was going after a gun or something in his pocket. He always carried a pistol. He had something in his hand. I thought he had a pistol. My gun was wrapped up in my coat. I looked the other way and saw Leland Morris, Carl’s brother, coming out from under the shed. It just came to my mind that they were framing up there. I reached down to my coat, got my gun up and shot. Carl was about 10 or 12 steps from me. He was mad and muttering something. I shot because I was scared and I thought he was going to shoot me. I jumped out of the wagon and cocked my gun again and looked towards the shed where the other boy had come out, and he was going back; then I went out on the street and surrendered.”

In rebuttal Wyle Evett testified:

''I was in the yard when John Coppedge shot Carl Morris. I heard a gun and saw the defendant standing in the wagon behind the bale of cotton. His arm and gun were directly over the cotton bale.”

Leland Morris testified:

“I was in the barn when the shot was fired. Some fellow said, ‘A man has been killed out here.’ I was tying the team in the barn. My brother did not own a gun at the time he was killed. I do not remember of him ever owning any gun, but a 22 target.”

Willie Morris testified:

"I am the widow of Carl Morris. I have three children living and two dead. The oldest is six, the next one three, and one nine months old. My husband did not own a pistol of any kind.”

We deem it unnecessary to detail further the facts disclosed by the record. No one can review the testimony in the ease without being impressed with the belief that appellant lant should have been found guilty of murder. The only basis for the verdict of a lower degree of homicide is the testimony of appellant “swearing his own neck out of the halter.” As we view the evidence, the only debatable question in the case for the jury to consider was whether the punishment to be assessed should be death or imprisonment for life. The record shows that no objection was made or exceptions saved to the evidence on behalf of the state, and that the testimony offered in behalf of appellant and rejected was either hearsay or self-serving declarations.

The court by its instruction authorized the jury to convict appellant of murder or manslaughter in the first degree, or acquit him on the ground of self-defense. No objections were made or exceptions taken to the instructions, which fully and fairly covered the law of the case. After considering all the errors assigned, we are of opinion that there was no error which could have been prejudicial to appellant, and the judgment is affirmed.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    CY DENNISON v. CHRISTOPHER, Superior Judge.
    No. A-4005.
    Opinion Filed June 28, 1921.
    (200 Pac. 785.)
    Petition for mandamus by Cy Dennison against H. R. Christopher, Judge of the Superior Court of Okmulgee County.
    Cause dismissed.
    See, also, 19 Okla. Cr. 179, 198 Pac. 514; 19 Okla. Cr. —, 200 Pac. 783.
    E. M. Carter, John Caruthers, and Joe S. Eaton, for petitioner.

      The Attorney General, W. C. Hall, Asst. Atty. Gen., and James Hepburn, Co. Atty., for the State.
   PER CURIAM.

Cause dismissed on motion of petitioner June 28, 1921.


text:
    JEFF MONTGOMERY v. STATE.
    No. A-3673.
    Opinion Filed July 2, 1921.
    (199 Pac. 222.)
    (Syllabus.)

      1. Appeal and Error — Harmless Error — Instructions. Where the evidence is such as to clearly convince the appellate court of the guilt of defendant of the crime charged, a reversal will not result on the ground of the misdirection of the jury unless the error complained of constitutes a substantial violation of a constitutional or statutory right given the defendant.
    2. Appeal and Erroi — Discretion of Court — Indorsing on Information Additional Witnesses, In a felony case it is discretionary with the trial court to permit the county attorney to indorse upon the information the names of additional witnesses for the state after the trial has begun, and a reversal will not result from such action on the part of the trial court unless the error complained of amounted to a clear abuse of discretion.
    3. Trial — Recalling Jury and Questioning as to Likelihood of Verdict. It is proper for the trial court, after the jury have been deliberating for some time, to call them into open court to ascertain why they cannot agree and to inquire if there is any likelihood of an agreement. In so doing the trial court must be careful to say nothing tending to coerce an agreement by the jury or to indicate what their verict should be. Por remarks of a trial court not amounting to an attempt to coerce the jury into returning a verdict of guilty, see body of opinion.
    4. Larceny — Grand Larceny — Sufficiency of Evidence. Evidence examined, and held sufficient to support the verdict.
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    Jeff Montgomery was convicted of grand larceny, and he appeals.
    Affirmed.
    Smith & McGhee and A. W. Turner, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. 0. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Jeff Montgomery was convicted in the district court of Ottawa county of the crime of grand larceny, and on the 23d day of September, 1919, was sentenced to serve a term of one year and one day in the state penitentiary for said crime.

The larceny for which defendant was convicted occurred in the town of Fairland, Okla., on or about the 27th day of January, 1919, and was connected with the burglarizing of the store of one J. S. Moore, the property taken consisting of watches, razors, rings, brooches, guns, et cetera, of the approximate value of $300.

There is no dispute but that the store of the said Moore was broken into and burglarized on the night of the 27th of January, 1919, and property stolen therefrom. Shortly after the theft of this property some of it was found in the possession of the wife of this defendant at their room in the town of Fairland, and when the officers discovered her with the property, she attempted to conceal it by placing it between the weatherboarding and ceiling. This property consisted of three wrist watches, four bracelets, a gentleman’s watch, a pair of cuff buttons, and some pennies. Two or three witnesses testified that they saw defendant on the night the store was burglarized as late as 10:30 that night standing by the side of Moore’s store and on the street in the vicinity of the store.

The defense interposed was an alibi, defendant testifying that he was not in the town of Fairland on the night of the burglary and had nothing to do with the stealing of these articles; that he did not know how his wife came into the possession of them; that he was living in the town of Afton and was in Afton on that night; that his wife was visiting his mother in Fairland at that time. Defendant positively denied meeting or seeing any of the witnesses who testified for the state that they had seen him in the town of Fairland on the night the property was stolen and close to Moore’s store.

Four assignments of error are relied upon as grounds for the reversal of this judgment. It is first contended that the trial court erred in giving an erroneous instruction to the jury on the question of the probative force of recent possession of stolen property. In this connection it is argued that the instruction is argumentative, and TnvadSs the province of the jury to judge of the evidence and the force to be given it.

In some respects the instruction is open to the criticism lodged against it. In other respects, however, the law is stated in a manner favorable to defendant. Considered in connection with other instructions given, we fail to see wherein this particular instruction resulted in substantial prejudice to defendant or should cause a reversal of this judgment. An examination of this record convinces the court that the evidence against this defendant introduced on the part of the state would clearly convince an impartial trier of the facts that defendant is guilty of the crime charged, and in committing said crime also committed the more grave offense of burglary. This court is not permitted to reserve a rightful judgment of conviction on the ground of the misdirection of the jury unless, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Section 6005, Revised Laws 1910.

The conviction is, in this court’s opinion, a just one, and the error complained of not such as to deprive defendant of any constitutional or statutory right.

It is also contended that the trial court erred in permitting the county attorney to indorse the names of two additional witnesses upon the information and use them in chief against defendant after the trial had begun. It was discretionary with the trial court so to do. Section 5733, Revised Laws 1910; Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 303 Colbert v. State, 4 Okla. Cr. 500, 113 Pac. 558.

The evidence of the two additional witnesses was to some extent cumulative. It related solely to the question of whether or not the defendant was domiciled in the town of Fair-land at the time of the commission of the offense, and had a bearing only upon the question of his possession of the stolen property. While the conviction was based to a considerable extent upon evidence of the recent possession of stolen property, there were other incriminating circumstances pointing to the guilt of defendant. Under the circumstances disclosed by this record, it cannot be said that the trial court abused its discretion in permitting the names of the additional witnesses to be indorsed on the information.

It is also contended that the trial court coerced the jury into returning a verdict of guilty. In connection with this assignment the record shows that, after the jury had deliberated for some time, they were returned into open court and asked by the court if they had reached a verdict, to which inquiry the foreman replied that they had not. They were then asked by the court as to whether there was a disagreement concerning the evidence in the case, or whether or not they desired further instructions by the court, to which the jury answered in the negative. The court then asked them :

“Without indicating how you stand upon the guilt or innocence of defendant, how are you divided?”

To which the foreman replied, “Eleven to one.” Whereupon the court remarked:

“I expect that one man thinks there are eleven mighty contrary jurors. Gentlemen, it is important in these cases that you reason together and consider together and not get stubborn or arbitrary or unreasonable; reason among yourselves and see if you cannot arrive at a verdict. It is important to the state and to defendant that you arrive at a verdict, if it is reasonably possible, and I suggest that you return to your jury room and resume your deliberations and reason with one another and see if you cannot get together. You may retire.”

It is contended that by the use of the expression, “I expect that one man thinks there are eleven mighty contrary jurors,” the court intended and did convey just the opposite meaning — that the eleven thought there was one mighty stubborn man in that jury, and that this remark of the court indicated to the jury that the court also thought that there was one mighty stubborn man on the jury.

We do not approve of this remark. It hardly comports with the dignity expected of a court of general jurisdiction. For that reason, trial courts should forbear indulgence in such remarks.

However, it takes a considerable quantity of refined and circuitous reasoning to convince one that the remark complained of amounted to an attempt on the part of the trial court to coerce the jury into returning a verdict, or that it had any such effect. The entire discourse by the court to the jury discloses that it was the trial court’s purpose only to call the jury’s attention to the importance of arriving at a verdict in the case, whatever that verdict might be, and that they should reason together and consider the evidence as reasonable men, and not in a stubborn, arbitrary, or unreasonable manner. We think it was entirely proper for the court to so a'dvise the jury, and that the action of the court was not such as would tend to coerce the jury in arriving at a verdict nor tend to influence the verdict to be returned. Therefore we find no reversible error in this assignment.

Finally it is contended that the verdict is not supported by sufficient evidence. The argument is advanced in support of this assignment that the evidence produced by the state is wholly circumstantial, and the circumstances are not such as to exclude every other reasonable hypothesis than that of guilt of defendant.

It is admitted that the corpus delicti of the crime is established; that the property found in the possession of defendant’s wife was part of that stolen from the store of Moore when it was burglarized on the 27th day of January, 1919. Besides the evidence of the recent possession of the stolen property at the place where defendant was then, if not permanently, at least temporarily, domiciled, there is the suspicious conduct of the wife in attempting to conceal the property. Also the amount of wrist watches discovered in her possession was more than could be conveniently used by her, her possession of this stolen property being entirely unexplained by her, and in addition defendant was seen standing by the side of Moore’s store about 10:30 o’clock on the night that the store was burglarized, and at other times by two witnesses at other places in Fairland on that night, also near to Moore’s store. 'Crimes of this character are not committed in open daylight, ■or under circumstances where positive and direct evidence is available to prove them. In nearly every instance crimes of larceny, burglary, and the like must be established by circumstantial evidence.

We regard the circumstances established in this ease against defendant amply sufficient to support the verdict. The inferences properly* to be drawn from such circumstances, in our minds, point unerringly to defendant’s guilt. We are’ impressed with, tbe fact that the narrative of his whereabouts' and doings on the night of this alleged burglary is untruthful,, and upon a careful consideration of the entire record we reach, the conclusion that the jury arrived at the proper verdict under the facts and circumstances before them.

Finding no error in the record sufficient to justify a reversal of the judgment, the same is accordingly affirmed.

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


text:
    Ex parte DON LAWHEAD.
    No. A-3992.
    Opinion Filed July 8, 1921.
    (198 Pac. 97.)
    Petition for writ of habeas corpus.
    Cause dismissed.
    T. G. Chambers, Sr., and Paul McCarthy, for petitioner.
    E. L. Fulton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

On June 4, 1921, there was filed with the clerk of this court a petition for writ of habeas corpus,, which was presented to the Presiding Judge, alleging that Don. Lawhead was unlawfully restrained of his liberty by Ben Daneey, sheriff of Oklahoma county; that the cause of said, restraint was a warrant issued by the Governor of Oklahoma, upon a requisition from the Governor of Colorado, predicated upon an information filed by Joseph W. Hawley, district attorney of Las Animas county, Colorado, charging said Don Lawhead with the crime of obtaining money under false pretense from one R. A. Murray, committed in said county and state, and alleging various grounds why said warrants were improvidently issued. The writ of habeas corpus issued, returnable before the court on June 6th, at which time all the parties appeared. Thereupon petitioner, through his counsel, ■asked leave to dismiss the cause. Which motion was sustained, the writ discharged and petitioner remanded to the custody •of the respondent.


text:
    GEORGE GARDNER et al. v. STATE.
    No. A-3668.
    Opinion Filed July 9, 1921.
    (198 Pac. 319.)
    Appeal from Superior Court, Okmulgee County; R. E. .'Simpson, Judge.
    George Gardner and Rose Gardner were convicted of a violation of the prohibitory law and appeal.
    Affirmed.
    E. W. Smith, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, George Gardner ■and Rose Gardner, were jointly informed against and tried and convicted upon an information filed in the superior court of Okmulgee county, at Henryetta, charging that they did have .possession of certain intoxicating liquors, to wit, sixteen gallons of Choctaw beer, with the intention on the part of them of ^selling the same, and in accordance with the verdict of the Jury they were each sentenced to be confined in the county .jail for a period of six months and to pay a fine of five hun•dred dollars. From the judgment they appealed by filing in this court on December 9, 1919, a petition in error with tran.script of the record. No briefs have been filed and no appearance made on behalf of the plaintiffs in error in this •court. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to .prosecute the appeal.

It appearing that the appeal herein has been abandoned, the judgment is affirmed and the cause remanded to the superior court of Okmulgee county, at Henryetta, with direction, to cause its judgment herein to be carried into execution. Mandate forthwith.


text:
    Ex parte MANUEL CURTWRIGHT.
    No. A-3985.
    Opinion Filed July 9, 1921.
    (198 Pac. 318.)
    Application of Manuel Curtwright for habeas corpus to be let to bail.
    Bail denied.
    Neal & Neal, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., D. C. McCurtain, Co. Atty., and James Babb, Asst. Co. Atty., for respondent.
   PER CURIAM.

This is an application by Manuel Curt-wright for the writ of habeas corpus, by which he seeks to be let to bail pending the final hearing and determination of a. charge of murder filed against him in LeFlore county, wherein, upon his preliminary examination he was held to answer for the murder of one Jesse Yates, by shooting him with a shotgun in said county on or about the 13th day of February, 1921. Petitioner avers that he is now unlawfully imprisoned and restrained in the common jail of LeFlore. county, by John Hunt, sheriff; that he is not guilty of the crime of murder charged. That upon the evidence introduced at his preliminary examination, together with the affidavits of certain other persons which are presented herewith, it is shown that the proof of his guilt is not evident nor the presumption thereof great. That therefore petitioner is entitled to be let to bail pending the. trial of said charge.

It is also shown that petitioner applied to the judge of the district court of LeFlore county for the writ of habeas «corpus to be admitted to bail, and on the 19th day of April, 1921, a hearing was had thereoAvjnd bail was denied.

The evidence for the state taken upon the preliminary examination and the affidavits for the state show that about eight o’clock, Sunday morning, the 13th day of February, 1921, the petitioner did kill and murder one Jesse Yates, by shooting him in the back with a shotgun. The petitioner admits the shooting, but claims that it was done in self-defense. We have examined the record and without entering into a discussion of •the facts as disclosed by the proof we deem it only necessary to say that upon a careful consideration of all the testimony presented in support of the application we are of opinion that •the petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and ordered that the writ be denied and bail refused.


text:
    Ex parte J. J. SMITH.
    No. A-3999.
    Opinion Filed July 9, 1921.
    (198 Pac. 98.)
    Petition of J. J. Smith for writ of habeas corpus to be let <to bail.
    Cause dismissed.
    H. L. Hardgrave, for petitioner.
    S. B. Haekett, Co. Atty., for respondent.
   PER CURIAM.

The petitioner, J. J. Smith, filed his petition in this court on June 14, 1921, seeking the writ of habeas corpus for the purpose of being admitted to bail, being held by N. F. Kirkpatrick, sheriff of Pushmataha county, upon a commitment issued upon a preliminary examination had on a complaint wherein petitioner was charged with the «crime of rape in the first degree. On June 18, 1921, counsel for petitioner filed a motion to dismiss the cause; which motion is sustained and the eausf^dismissed.


text:
    Exparte MILDRED ROTHROCK.
    No. A-3931.
    Opinion Filed July 9, 1921.
    (199 Pac. 581.)
    Petition by Mildred Rothroek for a writ of habeas corpus, .directed to Madeline M. Conkling, superintendent of the state Industrial School for Girls.
    Writ discharged, and petitioner remanded.
    W. H. C. Taylor, for petitioner.
    The Attorney General and W. 0. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Upon the petition of Mildred Rothroek for the writ of habeas corpus, verified by Ida May Waymire, her mother, the writ issued to Madeline M. Conkling, superintendent of the State Industrial School for Girls, and made returnable before the court for hearing on the 8th day of March, 1921.

It is averred in the petition that Mildred Rothroek is under 15 years of age, and was committed to said school by the county court of Kay county; that her restraint is unlawful, because at the time of said commitment the said Mildred Roth-roek was and is a married woman; that her husband, Andrew Rothroek, is imprisoned in the state penitentiary under a sentence of 5 years; that the alleged delinquency with which the said Mildred Rothroek was charged and committed took place while she and her husband were living together as husband and the judge thereof were without jurisdiction to commit her, a married woman, as a delinquent child to said industrial and wife under duress; that the county court of Kay county school, and that said alleged commitment is null and void.

Upon the return of the writ and by the testimony taken at the hearing, which was not controverted, it was shown that the said Mildred Rothrock was afflicted with a contagious venereal disease, and was under treatment for the same, as required by the provisions of chapter 17, Sess. Laws 1919. It was therefore ordered by the court that the writ be discharged and the petitioner remanded.


text:
    Ex parte VEMA ROMAN.
    No. A-4012.
    Opinion Filed July 9, 1921.
    (199 Pac. 580.)
    (Syllabus.)
    *1. Health — Police Power — Quarantine Regulations. The Legislature under the police power has authority to authorize the establishment of quarantine regulations for the protection of the public against contagion from those persons whose condition is such as to spread disease, and, incident thereto, to authorize the arrest and detention of such person.
    ;:2. Habeasl Corpus — Legality of Detention in Penal Institution as Infected Person. Habeas corpus lies to inquire into the legality of the detention of any person detained in a penal institution as an infected person after the expiration of his or her sentence.
    .'.3. Habeas Corpus — Right to Hearing of One Restrained of Liberty. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist.
    Habeas carpus proceedings by Verna Roman against Madeline M. Conklin, superintendent of the State Industrial School :for Girls.
    Petitioner discharged.
    H. J. Mackey, D. G. Johnson, and A. H. Meyer, for petitioner.
    The Attorney «General and W. C. Hall, Asst. Atty. Gen., :for respondent.
   DOYLE, P. J.

This is a proceeding by habeas corpus to test the legality of the detection of Yema Roman by Madeline M. Conklin, superintendent of the State Industrial School for Girls, under a commitment issued out of the county court of Caddo county, under date of May 16, 1916.

It is averred in the petition that the writ of habeas corpus was granted in the district court of Oklahoma county, and. that on the hearing before Judge Oldfield, one of the judges of said district court, the writ was discharged, and petitioner remanded. It is further averred that said Yema Roman was committed to said school when of the age of 13 years; that she attained her majority on the 18th day of March, 1921, and is therefore entitled to her discharge.

Respondent, answering, says that she is holding said petitioner pending the determination of the State Board of Health as to whether or not said petitioner was afflicted with an infectious venereal disease, as required by law under the provision of chapter 17, Sess. Laws 1919. Section 8 of said chapter reads:

The keeper, manager, guard or person in control of every prison or penal institution in this state, shall cause to be examined every person who shall be confined in such prison or penal institution after conviction for any offense against the laws of the state or any municipality thereof, to determine whether such person is an infected person. Every such person found to be an infected person, after the expiration of his or her sentence, shall be kept in such prison or some other suitable place for treatment until pronounced cured by a physician and discharged by the health authorities of this state. Where such infected person is unable to pay for such treatment the same shall be furnished and administered at the public expense by the state, county or municipality in whose prison such infected person may be confined; provided, however, that where infected persons have served their full sentence to such prison, the Board of Health may permit such infected person to leave such prison and to stay at home, or other suitable place before being cured, if, in the judgment of the said Board of Health, such infected person is able to do so, and will continue proper treatment for such venereal disease. State, county and municipal health officers, or their authorized deputies who are physicians within their respective’ jurisdictions, are hereby directed and empowered, when in their judgment it is necessary to protect the public health, to make examinations of persons convicted for sex offenses and to detain such persons until the results of such examinations are known. Any keeper, manager, guard, or other person in control of any such prison or penal institution who shall knowingly violate any of the provisions of this section, shall be deemed guilty of a misdemeanor and be punished by fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars .($1,000.00) or by confinement in the county jail for a term of not less than three (3) months nor more than one (1) year, or by both such fine and imprisonment.”

The power of the Legislature to prevent the introduction and spread of infectious and contagious diseases cannot be questioned, and the power to make quarantine regulations is one of the most important conferred upon the health authorities, and such regulations constitute a proper exercise of police power. 12 R. C. L. 1285, 1290. However, if, after such arrest or detention, such person challenges the right of the authorities to continue the detention, the fundamental law affords such person the right to have the legality of his or her detention inquired into by a court of competent jurisdiction in a habeas corpus proceeding. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. 6 R. C. L. p. 435.

If those facts do not exist, the officer has no jurisdiction to continue the restraint, and the court in a habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Hardcastle, 84 Tex. Cr. R. 463, 208 S. W. 531, 2 A. L. R. 1539.

By agreement of the parties in this case an examination .as required by law was held, and the State Board of Health reported that petitioner was not at this time afflicted with .any infectious disease in a communicable stage, and it was further agreed by the parties that the facts necessary to authorize petitioner’s continued detention do not exist.

It follows that the petitioner is entitled to her discharge, ..and it is so ordered.

MATSON and BESSEY, JJ., concur. '


text:
    JOE PAYNE v. STATE.
    No. A-3476.
    Opinion Filed July 16, 1921.
    (199 Pac. 581.)
    (Syllabus.)
    Trial — Instructions—Sufficiency in Absence of Specific Request. In a self-defense case, an instruction on “provoking the difficulty” examined, and held sufficient, in the absence of a. request for a more specific instruction.
    Appeal from District Court, Oklahoma County; John W. .Hayson, Judge.
    Joe Payne was convicted of manslaughter in the first de- . gree, and he appeals.
    Affirmed.
    This is an appeal from the district court of Oklahoma -county, wherein plaintiff in error, Joe Payne, hereinafter ■ designated defendant, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term -of four years’ imprisonment in the state penitentiary.
    The material testimony is substantially given by the wit-messes as follows:

      A. L. Sparks testified for the state in substance as follows: That he lived at 702 East First street, Oklahoma City, was 45 years old, and was connected with defendant in the pool hall business at 215 East First street at the time the trouble occurred; that he was acquainted with deceased, George Ellis, and saw him in defendant’s pool hall the first time about 7 or 7:30 p. m. on April 30, 1917; that deceased came up by the counter and asked witness about a drop cord, and witness did not understand what deceased was talking about, and deceased took witness back to the toilet room and showed him a cord about four feet long, and asked witness to buy it and witness told deceased he would have to see Mr. Payne, defendant, about it; that Payne was then playing pool at the fourth table back; that deceased walked back to Payne, and witness heard them talking, but did not understand all that was said, but heard Payne tell deceased that when he (deceased) fixed that window that he owed him for, a glass that was broken out of it, he could have the drop cord; Payne was speaking1 in a loud tone of voice; that he next saw deceased leave the building and come back in about a half or three-quarters of an hour and go back towards where defendant was still playing pool; that defendant ran out and left his pool cue sticking up on the front table, and came back with a gun in his hand, and went on to the back end of the building, and witness saw defendant and deceased afterwards coming toward the front of the building, and defendant had his gun and told deceased to throw up his hands, and they came toward the front keeping the tables between them, Payne on the west side and deceased on the east side; heard shooting; thinks deceased had some bundles under his left arm when he came into the building.
    On cross-examination witness testified that the wall on the west side of the room looked like it had been shot into; that] defendant had deceased ejected from those premises; that deceased had been running the pool hall before that time; that he heard deceased tell defendant not to pull his gun on him, and deceased held his hands up, and defendant kept deceased going back; did not see deceased pick up anything and did not see him put his hand in his pocket; reports of the guns seemed to be of different fires; thought more than one gun was fired; that deceased did not throw up his hands when first ordered to, and witness did not know positively whether deceased had a gun, but it looked like there was going to be some shooting, and witness left the pool room; had never heard deceased make any threats against defendant.
    Jim Bailey testified for the state in substance as follows -. That he lived at 209 East First street; 20 years of age; acquainted with defendant and deceased; was in front of 215 East First street a short time before the shooting occurred; when in front of the building saw defendant and deceased in there just a little past the second pool table; deceased was on the east side and defendant on the west; heard Payne say, “Well, get out of here;” deceased said “Wait just one minute; let me explain;” saw something was going to take place and left and went home; defendant had a gun at that timey heard deceased say he did not want to have any trouble; heard defendant tell .him not to go down there, that he had been lying and laying around there too much; that this shooting occurred after dark, but the building was lighted with electric lights.
    W. IT. Slaughter testified for the state in substance as follows: That he was a practicing physician in Oklahoma City for 14 years; knew George Ellis in his lifetime; deceased was brought to witness’ office at 327% East Second, about three blocks from the pool hall; deceased had two pistol wounds in his body, one in his right arm just above the wrist, and one just above the left kidney coming out in the abdomen just above the navel, going clear through; found a bullet in the latter wound in the mouth of the wound in front near the navel; it was right about dark when deceased was brought to witness’ office; had deceased sent to hospital; the wound passing through the body was a fatal wound.
    On cross-examination witness testified that he knew a bullet entered back of the hip on account of the wound thalt was made through the body. The wound on the arm entered above the wrist and came out below the elbow to the back. Witness further testified he had been down to the building after the shooting and noticed walls on the east side, and noticed what was apparently bullet holes, but did not examine the size of them.
    Isaac W. Young on behalf of the state testified in substance as follows: He was a physician; lived in Oklahoma City about ten months; came from Boley, Okla., and had been practicing medicine about six years; knew deceased by sight only; saw him on the evening of April 30, 1917, at Dr. Slaughter ’s office, lying on a couch, very weak and pale; found two gunshot wounds, one in right arm, the other through the body along through the trunk; wound in the right arm entered lower third of the forearm and came out just below the elbow in the back; the other wound entered a little to the right of the spinal column and came out near the navel, probably 2 or 2% inches above the navel; the bullet was found lying in the navel.
    W. M. Pant testified on behalf of the state in substance as follows: Resident at 823 East Third street; had known deceased about five or six years; saw him after he was shot going east from the pool hall at 215 East First street; did not see how far he went, but not out of the block as he was lying down when witness saw him; witness heard the shooting, and this was about four or five minutes after the shooting; was at Dr. Slaughter’s office and helped take deceased to the Emergency Hospital; was there when he died about an hour later.
    John Coopwood testified in behalf of the state in substance as follows: That he lived at 19 East Ninth street; knew deceased five or six months before his death; was at the pool hall of defendant on the evening of April 30, 1917; went in to shoot a game of pool, and was leaning over the table and heard one of the boys say, “I am-,” and raised up to see what the matter was, and there was some one there, and I asked them what was the matter, and he said Ellis wanted a drop cord and Payne did not want him to have it, and I went on playing, and about that time Payne came downstairs and looked me in the face and went back in the pool hall, and X turned around to see what was going on, and Ellis came toward the front of the room on the west side, and Payne said, “Did you get that drop light?” and Ellis said, “No,” and Payne said, “Where did you get that?” (he had it in his hand), and Ellis said, “Lay down that gun,” and Payne started around to Ellis’ side of the table, and when he go't near Ellis he asked him to lay that down, and he asked him what he was going to do, and he told Ellis that he had a notion to kill him, and he started around the table, and then Payne and Ellis went up to another table, and Payne shoved him up and tried to get up around him, and Payne shoved him up by that table and shot twice, and then Payne got up and run out of doors and went down First street. Ellis had nothing in his hands. Defendant had a gun in his hand; looked like a long-barreled gun. After Ellis was shot, he ran out on the street and went about 50 feet and fell, and was then taken to Dr. Slaughter’s office. At the time of the shooting witness saw Ellis, Payne, and a woman in there, and a half dozen other men that witness did not know. Witness was standing in the front door at the time of the shooting.

      Sparks, recalled, testified that Payne’s gun looked to be about a 45; never saw Ellis’ gun.
    Mike Connors testified that he was a policeman and had been for 11 years; knew Joe Payne, defendant, and saw him on the night of April 30, 1917, after shooting took place; arrested defendant; defendant turned over his gun to witness, and there was two loads in it and three had been shot; de-. fendant said he shot George Ellis, but witness did not remember what defendant said about the particulars of the shooting.
    R. F. Ketehum for defendant testified in substance as follows: That he was a truck driver for the O. X. Transfer Company; that he moved the effects of deceased from 215 East First street on about the 5th of April, 1917, consisting of about five pool tables and other fixtures; that in carrying out the goods Ellis spoke about a gun and about being a good shot.
    Jim Gardner for defendant testified in substance as follows : That he was a laborer on concrete work; knew defendant, but did not know deceased personally, but knew him when he saw him; was in the pool room of defendant on April 30, 1917, and was playing pool with defendant; saw deceased come in and deceased and Payne and his partner, Sparks, were talking about a light or something; deceased told Payne that he wanted the electric light, and Payne said he could not get it until he put that glass in the front, and deceased started towards the front door and turned around and said, “Well, I will get that light or I’ll whip your old bald head,” and then walked out. Deceased came back in about 20 minutes and said “I have come after that light, Mr. Payne,” and Payne said, “George, you don’t get that light,” and Ellis walked to the rear and Payne laid his cue down on the front table, and walked on out the front door, and I walked out behind him. Payne went upstairs; I was not in there when the shooting took place, but heard five shots fired.
    Rebecca Herró for defendant testified in substance as follows: That she was the sister-in-law of defendant, and lived in Ennis, Tex., but was in Oklahoma City on the 30th day of April, 1917, at her sister’s upstairs over defendant’s pool hall; saw deceased in pool hall that night standing on the east side; defendant was standing on the other side; was upstairs when Payne came up and followed him down, and when I went on downstairs deceased was talking to Payne, and I walked up to Payne and told him this was uncalled for, and I says “There is no need of this at all,” and I walked up to him, and so this man over by me he says, “Why, God damn Joe Payne; I am not scared of him,” and he commenced cursing him, and another man says, “Come out of the way,” and so when I looked back I seen this man starting for his gun, and I walked on back to the door, and they commenced firing, and I don’t know which one fired first. I went on outside after the shooting; Payne went upstairs after the shooting, and it was not long before the officers came.
    On cross-examination witness testified in part as follows : That she was sitting upstairs in the hallway when defendant came up and passed on through. When defendant came back I asked him what was the trouble down there, and he said there was a man down there bothering him was all. I didn’t see a gun and he didn’t seem to be excited. I went out and down after I heard loud talking down there. There was a crowd out in front when I went down.
    W. M. Posey testified for defendant in part as follows: That he was a hod carrier; lived at 430 West Third street; that he knew both deceased and defendant, and was in defendant’s pool hall on the night of April 30, 1917, and eon-cerning what occurred there we quote from the record of his testimony as follows:
    “Q. Did Ellis go back of this table? A. Went right on into the back. Q. And there was a drop cord inside there? A. Yes, sir. Q. Then when you went in you did not notice him? A. He came in after. Q. And you did not hear what was said? A. Did not hear what was said between he and Payne. Q. And Ellis come out? A. Yes, sir. Q. You may state now what he said, if you recollect. A. Well, when he come out he asked Payne did he want to buy it, and Payne told him ‘No’, and he said, ‘All right/ and he told him that he would not buy it and that he wanted him to get out of there, and George said ‘By God’ that he was going to have that light, and that he was going to get that light before he left the building, and he went out and was gone about 15 or 20 minutes, an then he come back in and come around with his hand in his pocket, and he went around the south end of the' tables and went back in the room, in this corner. Q. What hand did he have in his pocket? A. Had his right hand in the front coat pocket. Q. Did he have a bundle under his arm? A. Did not have anything — I never noticed if he had anything in his left arm or not. Q. Did he have anything under his arm or about him that would have kept him from fighting any man.”
    “By Mr. Callihan: Objected to for the reason it is incompetent, irrelevant, and immaterial.
    “By the Court: Sustained, and exceptions allowed to the defendant.
    “A. Well, he went on back, and after he got back there Payne dropped his cue on the table and just got towards— well, he just run out and run upstairs for his gun, that is, I supposed he did, I did not know particularly that, but he run out and come back with his gun in his hand, and I commenced to leave, commenced moving. He come down some stairs that went on the outside of the building there, and he went on in the building, and we went out of the building and walked a little ways down the street. Q. What did you* do that for? A. Well, I did not feel like I wanted to get shot, and I did nut want to go in and did not want it to happen, for I thought there might be a little gun play.”
    On cross-examination this witness testified in part as follows:
    “Q. Now, when you stated all that was said, you only told just the conversation between Payne and Ellis, just the 'Conversation about the drop light? A. I think I stated about .all that was said, yes, sir. Q. Payne told him that he could not have it, and he said that he would, and started out and Payne told him not to send anybody for it? A. Well, he had not moved out of his tracks. Q. And he told him that he would :get it, and Payne told him not to send anyone? A. Yes; told him not to send any one for it. Q. Then what did Ellis say? .A. Simply said that he would get it himself. Q. And did he .not tell him that he would leave it there? A. Simply said that he would sell it to him, and Payne told him that he did not want to buy it. Q. Well, Ellis told him he would sell it 'to him? A. Yes. Q. What did Ellis say then? A. Payne told him that he did not want to buy it, and that he could not have it until he had fixed that pane he had broken, and then Ellis said, ‘By God’ that he would get it himself, and that was after Payne had told him not to send any one to get it, for he would not let them have it. Q. And then he went out? A. Yes, sir. Q. And in about 15 or 20 minutes he come back? A. Yes, sir. Q. And he had his right hand in his coat pocket? A. Yes, sir. Q. And you did not see anything in his pocket, any pistol or anything like that? A. I did not. Q. Did he move any more than to tell Payne that he had come after that light or drop cord? A. He started back to get the drop cord. Q. Did he say anything to Payne? A. Not a ^vord that I heard, only passed by going that way. Q. You was looking at him? A. Right square at him. Q. And he never did take his hand out of his pocket? A. No, sir. Q. And you did not notice him throw his coat back? A. No, sir.”
    George Clarady, a witness for defendant, testified in part as follows: That he had lived in Oklahoma City 20 years, and was at the Payne pool hall on the night the difficulty occurred; that he got there about the time the trouble arose,, and detailed what he saw as follows:
    “Q. Go ahead now in your own way and tell the court and. jury what time it was, how it occurred, and what occurred, on that occasion. A. Well, I just come into the pool hall, and! I seen the boys all running, as if something had happened, and. .1 just walked in to a small store and asked what the trouble was, and then I went in there, and there was no one in there except Payne and George Ellis and another colored fellow, and they was all scared and had scattered out there, and Mr. Payne walked in towards the back, and George went down that way on the east side, and when he got near him he says to him something, and I said, ‘Don’t shoot that man;’ .that’s the words I heard; and Ellis stopped, and Payne said to him, ‘ Go on out of here, ’ and I was on the east side, and George Ellis walked on the east side towards me, and when Ellis got to me, Payne come on the west side, and he says, ‘Don’t stop; hold your hands up and go on out of here and don’t stop,’ and he set his right foot out towards Payne, and right about that time Payne shot. Q. What did Ellis have in his hand? A. Had a small bundle under his left arm. Q. Did he have a gun in his other hand? A. Well, he did not hit him, and he started out then, and I did not see any gun. Q. Then what happened? A. He told him to get on out of there and shot in the air, and then about that time he walked out. Q. You say that George Ellis had come back to the fourth table, there four tables there? A. Yes, sir. Q. That’s where this trouble began? A. Yes. Q. Where did you see Payne then your best recollection? A. Why, he was there in the hall there, at the first table. Q. The first table? A. Yes; near the door. Q. Where was Ellis ? A. At that table, on the east side, he was coming in there when he told him to stop and throw up his hands, and then he stopped, and Ellis was coming around the end of the table. Q. And then when he told him to stop they were just about facing each other squarely? A. Yes, sir. Q. And did he stop there at the end of the table when he met him there towards the west ? A. He was facing the west; yes. Q. And you say that Ellis had a bundle under his left arm? A. Yes, sir. Q. And did he have a gun in his right hand? A. Well, it was down there, and I did not see. Q. Well, then, right after that time was when the shooting begun? A. Yes, sir. Q. And how many shots; four? A. Three was what I heard, I think.”
    And on cross-examination this witness testified in part as follows:
    “Q. And was there anything between you and he then? A. I was standing right close. Q. Was there anything to have prevented you going around and out of there? A. No; I had no business there except just stopped in and used to stop in there. Q. Could the defendant have raised there and shot? A. Nothing to prevent it, I guess. Q. Where was George when he told him to get out of there? A. At the east end of the table there. Q. And then the defendant went to the east side? A. After that he advanced and told him to get out; yes. Q. And then where did he go ? A. He went to the east side and told him to get out. Q. He was on the opposite side? A. Yes; but he told him to get on out of there. Q. Well, now was Ellis over north of there? A. I don’t know exactly; he was on the east when I went in there. Q. And Ellis then started out? A. Yes, sir. Q. And Payne turned around with his gun in his hand and fired? A. Yes. sir. Q. And then did he walk out or stay right there? A. Yes, sir. Q. Ellis went out and started east? A. Yes, sir. Q. And Payne started out after him and shot him? A. He told him to throw up his hands, but he did not, and there was some shots exchanged there. Q. Where was that? A. That was east from the store.”
    R. Ketchum, recalled, testified for the defendant that at the time he moved deceased’s goods on April 5th he saw a gun, and that deceased said he was going to take the gun and shoot Baldy Payne with it.
    Joe Payne, defendant, as a witness in his own behalf, testified that he was 54 years of age; lived in Oklahoma City 12 years; that he was running a pool hall at 215 East First street ; commenced in April, 1917, after he had ejected deceased from said premises on account of Ms allowing gambling in there; that deceased seemed to get mad because he was moved out. Referring to the trouble at the time of the shooting, he testified as follows:
    “A. Well, Ellis come into the pool hall, and I did not notice him when he first come in. The first was when Mr. Sparks come in, and I and this young man was trying to play a game of pool, and I looked up and seen Ellis there with Mr. Sparks, and he come up to Mr. Sparks, and they come up and looked at us, and then I noticed that Ellis was there at the back door, about six feet away, and there was a window light there that he had broken plumb through when I had looked through there and would not let him run a gambling hall there, and I walked to this door, and Ellis was talking about something, I don’t know what, but anyway he turned back to me and Mr. Sparks, and Sparks says, ‘Payne, Ellis says that globe up there is his; and he wants to sell it to you, and wants to sell it for 75 cents,’ and I says, ‘Now, Mr. Ellis, I don’t think that you ought to move that or take it way from here.’ ' Q. And what did he say? A. He said that he was going to, and I told him I did not think that he ought to for the reason that he had broke the glass in the door, and I thought that he ought to fix it, and did not think that he should take that until he had fixed up the glass that he had broken, and he said that he did not break it, but I told him that one of his patrons did, and I told him that he had to leave that alone and not take it out until he had fixed that glass, and he. said he did not do it, and I said, ‘You broke that window when I was there looking there, threw a bottle through it, and he says, ‘Yes; I did, Payne; I did that,’ and X told him that he had to have it fixed, and then he was welcome to that drop, but I did not want him to touch it until he had fixed the window, and he started out then and scratched his head and says, ‘Well, I am going to send a man for it,’ and I says, ‘Now Ellis, don’t you send any one for that light, because I will not give it to them, and don’t you send any one for it, don’t you do it for I will not let them or you take it out until you have fixed that window.’ Well, he stood there a little bit, and then he turned and walked off, and I did not see, and then he said that he would come and get it himself, or something about damn black head or something like that and went on out. And he went on out, and then he come back in, and he had his hand in his coat like he had something in his clothes — ■
    “By Mr. Scothorn: We object to that and move that it be stricken for the reason that it is incompetent, irrelevant, and immaterial.
    “By the Court: Overruled and exceptions allowed.
    “A. And he come back in there, and I told him to get out, and he kept on coming back there, and I run out and went up stairs and got my gun, and he had cursed around there, and' after he went out he stayed about 20 or 30 minutes, and then I looked up and seen Ellis coming in at the door again, and when he come in at the door I did not know what to do, and I just started to shoot a game of pool, and I noticed him and thought that it might be that he did not aim to go back, and when he just come right on in and just kept coming right on in, and come down that way with his hand in his pocket. Q. Did he have his overcoat on? A. Yes; he had his dress coat on. Q. And when he went on looking that same kind of way and went by these pool tables on the west side there, and would stand by one corner and then pass on to the next table, and I thought that he might pull his gun out at any time, and I told him to get out, and he kept on coming, then I threw the pool cue there on the first table and run on out there and run upstairs and got my gun and come on back down with my gun to protect myself. I did not want to kill and did not intend to kill anyone, but wanted to protect myself and my property, and he kept his hand in his pocket and started to pull it out, and I was going to protect myself, so when I went back into the pool hall I went down to the third table and X met him, facing that table and I stopped and he stopped there, and he said, ‘What is the matter, Payne?’ and I asked him what was the matter with him, and he says, ‘Why, are you just fixing to raise hell or something, and go on, you have been running over me for about three months and I am tired of it, and if you don’t give me my drop cord and light — and all that he would do, and I did not pay much attention, only I told him to get out of there and to put up his hands. And he said'fhat if I did not quit bothering him that he was going to shoot me, and he just kept on walking towards me, and walked back to the end of the first table. Q. And did you not go back. A. Right back. Q. And he was back of you all of the time?
    “By Mr. Callihan: Objected to for the reason it is leading and suggestive.
    “By the Court: Overruled and exceptions allowed.
    “A. Yes, sir; he walked right along there all of the time, and I kept on going there until we got near the first table there in the door there, and I throwed by gun down on him and told him that if he come in any farther I would kill him, would kill him as sure as his name was Ellis, if he come on to me, and I told him to keep his hands off of that gun and put them up, and he says that he would not do it, and he started to pull his gun, and I pulled mine, and he walked towards me, and I looked at him and told him to put his hands up and get out of there, that I did not want to have any trouble. Q. What did he say to that? A. Did not say anything, and I told him to go on away, that I did not want to have any trouble and did not want to kill him, but told him if he pulled his gun that I would kill him. I said to him, ‘Now, George, throw up your hands and go on through there and go on out and leave that room and go on away from here, and don’t come back here,’ and then I said, ‘Now, George,, you go on out of here.’ Q. What did he say to that? A. He went around the end of the table, facing me, and said, ‘God damn you, you don’t think I will kill you, ’ and I told him to throw up his hands and get on out, and he come around the end of the table and come down towards me, and I threw down my gun, because he tried to get his from his coat, and I tried to keep him from getting it. Q. Did you shoot? A. Yes; I tried to keep him from getting his gun and shot at his arm, and he pulled his hand out from the in-; side, and then I shot at him the second time. Q. I will ask you if you would have shot at all if he had not pulled his hand out and tried to shoot you? A. No, sir; I had no right to shoot him and did not want to; I was trying to get him out of there to avoid any difficulty, and to keep from having trouble with him.”

      O. L. Price, for defendant, testified that he was a justice of the peace, and knew defendant; that defendant had called upon him in regard to getting deceased out of His premises because deceased was gambling and bootlegging in there; that no suit was ever filed for that purpose, and witness was later advised that deceased had left the premises.'
    C. S. Graves testified for defendant that he rented the premises where the trouble occurred to Joe Payne; that he refused to rent said premises to deceased; that he was acquainted with Joe Payne, defendant; and that his reputation for peace and as a law-abiding citizen was good.
    Louis Vance, for defendant, testified that he lived on East Fourth street, and was upstairs over the pool hall the night the killing took place, and saw George Ellis down there that night about 7:30 or 8 o ’clock; heard Ellis say, about two weeks before the killing, that if Payne fooled with him, he (Ellis) would shoot him on his bald head.
    On cross-examination witness testified that he was a tenant in the rooming house belonging to defendant.
    E. W. Perry, for defendant, testified that he lived at 605 East Second street; was a minister of the gospel; knew defendant for a year or more; that his reputation for peace and quietude was good.
    W. L. Fant, a witness for the state, in rebuttal testified that he ran an automobile shop; knew defendant, and his reputation for peace and as a law-abiding citizen was bad.
    Giddings & Giddings, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

(after stating the facts as above). We have quoted extensively from the testimony of several witnesses in order that a clear impression may be had of the issue presented.

The only error complained of is the giving, over objection and exception of defendant’s counsel, of the following instruction :

“You are instructed that, if a person voluntarily arms himself and seeks another for the purpose of provoking a difficulty for the purpose of and with the intent upon the part of such person to take the life of his adversary, a killing under such circumstances, of his adversary, cannot be excused or justified upon the grounds of self-defense, and in this case, if after a fair and impartial consideration of all of the testimony in the case you believe that the state has established by the evidence beyond a reasonable doubt that the defendant in this case voluntarily armed himself and prepared for difficulty with the deceased, George Ellis, with the intent upon his part to kill the said George Ellis, and after so preparing and arming himself he sought out the said George Ellis and provoked a difficulty with the said George Ellis for the express purpose and with the. intent upon his part to take the life of the said George Ellis, and under such circumstances did take the life of the said George Ellis, then and in that event the killing of the said George Ellis by the defendant would not be justified upon the ground of self-defense, regardless of what the difficulty between the two might have been prior to that time.”

It is contended this instruction is erroneous for the following reasons: (1) No evidence to support it; (2) fails to call attention of jury to any acts of defendant which would constitute “provoking a difficulty.”

Without entering into a lengthy discussion for so holding, it is apparent from the excerpts of the evidence herein set out that the trial court did not err in giving an instruction on the question of “provoking the difficulty.”

Tbe defendant’s pool hall was a public place at that time. The deceased had a right to go there on a lawful mission, and he had a right to take possession, in a peaceable manner, of the personal property belonging to him which he had inadvertently left there when he moved his effects therefrom two or three weeks previous.

Defendant had no right to use a deadly weapon on the deceased merely to protect his property from a trespass not amounting to a felony.

According to the state’s evidence, and some of that for defendant, the deceased did nothing prior to the shooting indicating an intention on his part to commit a felony on the property of defendant, or on defendant, or to do him serious bodily injury.

Under such circumstances the action of defendant in going out of the building to get his pistol, in returning thereto, in pointing the same at deceased, in ordering deceased to hold up his hands and back out of the building, were overt acts on defendant’s part entitling the jury’s determination of the question of whether he “provoked the difficulty” and was the probable aggressor in the shooting affray which followed. If those things were done by defendant with the preconceived intent to take the life of deceased, the crime was murder.

In any event such unlawful conduct would result in de-. priving defendant of his right of self-defense, unless he after-wards in good faith attempted to withdraw from the conflict which ensued, and, while there is no substantial evidence in this record requiring the submission of the “withdrawal” issue, the trial court covered that question in a prior instruction.

The instruction complained of correctly states the law. It is incomplete only in so far as it fails' to call attention to those overt acts above enumerated which amounted to a “provocation of the difficulty.” No more specific instruction along this line was requested, nor was any request made that the trial court give a definition of the term “provoking the difficulty.” In the absence of such requests and in view of the undisputed evidence that the deceased was shot once in the back, the bullet ranging directly through the body from median line to median line, it is evident that defendant shot deceased at a time when deceased was leaving the building with his back toward defendant, and this theory is borne out by testimony of state’s witnesses, or else after deceased was on the street and was walking away from defendant, and this theory is borne out by a witness for defendant.

Defendant was represented by able counsel, and, we think, was extremely fortunate to escape with a conviction of first degree manslaughter with minimum punishment imposed.

Judgment affirmed.

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


text:
    In re Al WILLIAMS.
    No. A-4009.
    Opinion Filed July 19, 1921.
    (198 Pac. 98.)
    Application of A1 Williams for writ of habeas corpus to obtain admission to bail.
    Bail denied.
    Welch & Welch, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and Charles E. McPherren, for respondent.
   PER CURIAM.

This is an application by A1 Williams for a writ of habeas corpus to obtain admission to bail on the charge of murder, complaint filed May 24, 1921, before Geo. R. Childers, justice of the peace of Antlers township, Push-mataha county, charging the murder of one W. L. Bowlin, wherein upon his preliminary examination petitioner was bound over to the district court without bail.

Petitioner avers that heretofore he has applied to the district court of said county for a writ of habeas corpus to be admitted to bail and on the hearing thereon bail was denied.

Petitioner avers that upon the evidence introduced at his preliminary examination, together with the affidavits of certain other persons, which are presented herewith, it is shown that the proof of his guilt is not evident, nor the presumption thereof great, that therefore petitioner is entitled to be let to bail pending his trial on said charge.

The evidence for the state offered on the preliminary examination shows that about sunrise on the 19th day of May, 1921, the petitioner did kill and murder W. L. Bowlin, by shooting him with a shotgun; that the charge entered behind the right ear, a few shot entering the neck and shoulder. The shooting occurred on the place of the deceased, in a small pasture where he kept his work horses. The evidence shows that the body was found a few minutes later in a little glade surrounded by a thicket and two bridles were lying near the body. No weapon of any kind was found on or near the body. Petitioner admits the killing, but claims that it was done in his necessary self-defense.

¥e have examined the record and without entering into a discussion of the facts as disclosed by the proof, we deem it only necessary to say that upon a careful consideration of all the testimony presented in support of the application, we are of opinion that petitioner is not entitled to be let to bail as a matter of legal right. It is therefore considered and ordered that the writ be denied and bail refused.