text:
    JOSEPH HOUSTON BROWN v. STATE.
    No. A-4057.
    Opinion Filed July 24, 1923.
    (216 Pac. 944.)
    (Syllabus.)
    1. Homicide — Law of Self-Defense. Stated. In order to justify the killing- of a human being! on the ground of self-defense, it must appear that the defendant acted under a reasonable belief that he was in imminent danger of death or great bodily, harm from the deceased. However, it is not necessary, in order to justify on the ground of self-defense, that the danger should have been real or actual, but the circumstances must be such as tb create a reasonable belief in the mind of the defendant that it was necessary to kill the deceased in order to save his own' life, or protect himself from great bodily harm, and in judging of the danger the circumstances must be viewed as they appeared to the defendant when he killed the deceased.
    2. Trial — Sufficiency of Instructions as a Whole. Where the instructions of the court, considered as a whole, fully and fairly present the law of the case and are not inconsistent, they are without error.
    3. New Trial — Insufficient Grounds — Separation of Juror — No Showing of Prejudice. The fact that a juror in a capital case became separated from his fellow jurors at a recess during the trial, and left the custody of the officers who had the jury in charge, is not sufficient ground to grant a new trial; where it does not appear that he had any communication with any one concerning the cause, either directly, by conversation, or indirectly, by overhearing the observations of others, or that he did any act inconsistent with his duty as a juror during such separation.
    Appeal from District Court, Bryan County; Geo. S. March, Judge.
    Joseph Houston Brown was convicted of manslaughter in the first degree* and he appeals. .
    Affirmed.
    W. E. Utterback, D. S. MacDonald, and Wm. S. Murphy, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Joseph Houston Brown, who will herein be referred to as the defendant, was convicted of manslaughter in the first degree for having killed his father, John Brown, June 8, 1920. In accordance with the verdict, April 25, 1921, he was sentenced to imprisonment in the penitentiary for a term of four years.

It appears that at the time of the homicide the defendant was 19 years of age, and for some time had lived with his brother-in-law, John Holt, whose home was about 300 yards from the home of deceased. On the day before the homicide the defendant and his father had a difficulty at his father’s place; the next morning deceased followed his wife and two daughters to John Holt’s home and engaged in an altercation with his wife, his daughter, Mrs. Holt, and the defendant. The defendant went around the house and came back with a shotgun and ordered his father to leave, his father refused to go, and the defendant shot him. The evidence shows that the shot went through his left arm just above the wrist, striking on the outside of the arm and entered just above the navel; death was almost instantaneous. The evidence shows that no weapon of any kind was found upon the body or near it.

Ola Brown, daughter of the deceased, and sister of the defendant, testified:

That the night before the tragedy her father and mother had some trouble. The next morning with her mother and sister Muriel she went to John Holt’s, who was the husband of her sister Stella. That they were all out in the yard talking when her father came through the gate, and spoke to Stella’s baby, saying, “Hello there, baby child." Then he said, “Stella, what in the hell are you doing?" He then turned to my brother and said, “Son, you must not come down there any more now; you made a hell of a break yesterday, you sure did, about saying to lay that gat down." My brother said, “Well, papa, you told me that yesterday, and I haven’t been back since." My father sat down and my brother walked away; in five or ten minutes he returned, carrying a shotgun, and told my father “to get.” My father turned around, faced him, and said, “You see I'ain’t gone.” My brother said, “Well, you will leave.” My brother stood there about a minute without saying anything, he had the gun raised in the direction of father; we were all asking him not to shoot, Mamma said, “Oh, Hugh, don’t shoot.” We were all hollering the same thing ;• I thought I would pull the gun down, my brother said, “Get back,” so I got back. My father put his left hand over to his right side and my brother shot him; father stumbled backwards and fell. My brother told Mamma to tell me to go to Parker’s and tell somebody to come down there; she told me to go on, and I went away.

Mrs. Stella Holt testified:

“My mother, my two sisters, and my brother were at the house, my husband was out in the field. My mother had been over before breakfast, stayed a few minutes and went back home, then she came back with the girls; my brother was sitting in a chair under a tree; father came in and spoke to the baby, then he asked me, ‘What in the hell are you doing?’ Then he said, ‘Where is John?’ I said I guess he has gone to the field. Then he walked up in front of my brother and said, ‘You made a hell of a break yesterday, you thought you were playing damn smart coming down there like you did.’ My brother said, ‘Papa, you are the cause of this, now you go on away and leave me alone.’ My father said, ‘Oh, hell, I will never leave you alone, if you don’t get me I will get you.’ Papa turned and began on mamma again, calling her a liar, and my brother went into the house. When he ca!me back he was carrying a gun. Papa was cursing and demeaning mamma. He says, ‘You tell the girls I hit you last night.’ Mamma said, ‘You did.’ He said, ‘You are a God damn liar. I didn’t slap you.’ Mamma said, ‘Muriel, didn’t he slap me,’ and she said, ‘Yes, mamma, he did,’ and papa said, ‘Muriel you are a God damn liar.’ My brother was walking towards father. He said, ‘You get,’ and papa says ‘You see I am not gone, I am not going to go.’ He told papa two or three times to go, and said, ‘I have asked you to go; I am going to shoot you.’ Muriel and Ola said, ‘Don’t Hugh! Don’t Hugh!’ and started towards them, and my brother said, ‘Don’t go in front of the gun, ’ and mamma said, ‘Don’t do that, Hugh,’ and father sort of put his left hand up in front of his breast and my brother shot him. Father fell on his back; there was nothing in his hands; he was dead when I reached him.”

As witnesses for the defendant, the testimony of Mrs. Sally Brown, widow of the deceased and mother of the defendant, and Muriel Brown, daughter of the deceased and sister of the defendant, was'in substance the same as the, witnesses for the state, and to the further effect that the deceased had been drinking the day before his death.

John Holt, brother-in-law of the defendant, testified that the deceased came to the field the day before the tragedy and stated that he was going to get the defendant, and that at that time he was carrying a pistol; that he persuaded the deceased not to go up to the house where the defendant was; that later in the evening the deceased made threats that he was going to get the defendant.

Several witnesses testified to the good character of the defendant for peace and quietness.

As a witness in his own behalf, the defendant testified:

That the day before the tragedy he went to his. father’s house to get his horse. That his father abused him and slapped him, that his father had a gun on. That he was plowing in the field with John Holt. That his father came and talked to Holt. That Holt came to him and told him that his father was threatening to kill him and advised him to quit and to go to town and have his father arrested. That he quit when the sun was about an hour high, and before sundown his father came to the hog lot where John Holt was and again made threats. That the next morning his mother came to Holt’s and said that her husband slapped her last night, and that she hit him on the head with a. knife. That his mother went back home and a little later his mother came back with Muriel and Ola, his sisters. That his father followed them, and when he came in he spoke to the baby, then said, “Stella, what in the hell are you doing?” Then he came over where I was sitting in a chair and says, “Son, you made a hell of a break yesterday evening, you did not do me right.” I says, “I aim to do you right.” He says, “I ain’t going to have any more of that. You are getting too damn smart to stay at home.” I says, “I didn’t aim to mistreat you in any way.” He says, “I told you yesterday evening that you could not come on that side of the fence any more, ’ ’ and I said, ‘ ‘ I haven’t been back down there. ’ ’ He says, “Well you want to be damn sure not to come down on that side, if you do I am going to get you. ’ ’ Then he turned and said, ‘ ‘ Stella, look at me, see what your mother did to my head last night,” and mother says, “I would not have done that to you if you had not slapped me,” and he says, “You are a damn liar.” So I rose up out of the chair. Mamma says, “Muriel, did-n’t he slap me first?” and Muriel says, “Yes;” and he says, “Muriel, you are a damn liar.” Then I went around the house after the gun. It was sitting in the corner. There was a shell on the dresser, and I took it and put it into the gun. Then I went back around the corner of the house, my father was cussing my mother and I told him “to get.” He says, “You see I ain’t gone, do you?” They all says, “Don’t do that, Hugh,” or something like that, and I says, “Papa, you must go.” “Hell,” he says, “I ain’t going to go.” Sister Ola got in front of the gun. I told her to get away. He told me I was too damn big a coward to shoot; that I did not have the nerve to shoot, and he says, “Don’t you know if you was to shoot me they would string you up before you got to town,” and I says, “Papa, please go on and let us alone,” and he says, “Leave you alone, hell. I am never going to leave you alone,” and he done that way. That is when I shot him; he was moving toward me and I thought he was going to get! a gun.”

In rebuttal, F. J. Kim, court reporter, testified that he took the testimony on the preliminary examination, including that of the defendant, and read from the transcript of the defendant’s testimony, in part as follows:

“Q.'You had the gun directly on him? A. Yes, sir.
“Q. Didn’t yon tell him that yon wonld kill him if he didn’t leave? A. I says, ‘.Papa, I will hnrt yon if yon don’t leave.’
“Q. Yon conld not hnrt him very well nnless yon killed him with that gun? Al No, sir.
“Q. Yon did kill him? A. Yes, sir.
“Q. That is the way yon was going to hnrt him if he didn’t leave? A. Yes, sir.
“Q. That is the way yon hnrt him? A. Yes, sir.”

The errors assigned and argued are based upon exceptions taken to three of the instructions given, and alleged misconduct of jurors during the trial.

There is no material difference in the testimony of the several witnesses as to the facts in this case, and the only evidence of any overt act on the part of the deceased is the testimony of the defendant to the effect that when deceased raised his left arm he thought he was reaching for' a gun; as against that, the testimony of all the witnesses is to the effect that they were begging the defendant not to shoot his father when he fired the fatal shot.

Our Penal Code provides that homicide is justifiable when committed by any person—

‘ ‘when resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or, when committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.” Comp. Stats. 1921, § 1754.

In order to justify the killing of a human being on the ground of self-defense, it must appear that the defendant acted under a reasonable belief that he was in imminent danger of death or great bodily harm from the deceased. However, it is not necessary, in order to: justify on the ground of self-defense, that the danger should have been real or actual, but the circumstances must be such as to create a reasonable belief in the mind of the defendant that it was necessary to kill the deceased in order to save his own life, or protect himself from great bodily harm, and in judging of the danger the circumstances must be viewed as they appeared to the defendant when he killed the deceased. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

In Roddie v. State, 19 Okla. 63, 198 Pac. 342, it is said :

“In order to justify the assault and to slay an assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assailed or the infliction of some great personal injury, not necessarily amounting to a felony, if carried out, and in addition thereto there must be reasonable ground for believing that there is imminent danger of such design being accomplished. The use of a deadly weapon is justifiable for the purpose only of preventing an unlawful and violent attack on one’s person, of such a nature as to produce, a reasonable expectation or fear of death or great bodily injury about to be inflicted. There may be circumstances under which one violently attacked by another who is unarmed will be justified in using a deadly weapon in his defense, such as great disparity in years or one greatly his superior physically. Ordinarily the mere fact that one is approached in a threatening manner by another who is unarmed, and who is not his superior physically, will not justify him in using such a weapon. However, it is for the jury to say whether a person assaulted with hands or fists could, under the circumstances of the case, justifiably resist the assault with a deadly weapon.”

•Carefully considering the testimony in the case under the most favorable view that can be taken of it in favor of the defendant, we feel constrained to say that there is no room for reasonable belief that the deceased assaulted or attempted to assault the defendant, or any other member of his family present before the fatal shot was fired.

It follows that the criticism of the instructions on the ground that they do not fully state the law of justification in self-defense is without merit. It is sufficient to say that the instructions as given by the court fully covered every phase of the case to which the testimony was applicable, including the law as to manslaughter in the first degree, as to self-defense, and as to reasonable doubt.

One of the grounds of the motion for a new trial is:

‘ ‘ That the court erred in allowing the jury to separate during the trial, after having ordered that the jury be kept together and not be allowed to separate. ’ ’

The proof in support of this ground shows that by agreement of the parties the court permitted the bailiff to take the jurors to Sunday school during the trial of the case; that juror Herreld and another juror became separated from the other jurors at Sunday school for 10 or 15 minutes. But it was not shown that these jurors left the room.

The juror Herreld testified that he was secretary of the Sunday school and went over to his desk in the corner, which was in plain view of where the jury was sitting, and assisted in tabulating the class attendance, and that he did not converse with anybody except the Sunday school superintendent and his assistant.

In the case of Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185, this court held:

“The fact that a juror in a capital case became separated from his fellow jurors at a recess during the trial, and left the custody of the officers who had the jury in charge, is not sufficient ground to grant a new trial; where it does not appear that he had any communication with any one concerning the cause, either directly or by conversation, or indirectly, by overhearing the observations of others, or that he did any act inconsistent with his duty as a juror during such separation.”

Upon the record before us it clearly appears that the defendant suffered no injury by reason of the alleged separation of the jury.

We have examined the other assignments of error and find none of them having sufficient merit to warrant any further discussion. In our view, the jury were exceedingly lenient under the circumstances in assessing the minimum punishment. As shown by the record, the defendant has had a fair and impartial trial. The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    WARNER H. EDWARDS v. STATE.
    No. A-4056.
    Opinion Filed July 24, 1923.
    (216 Pac. 947.)
    (Syllabus.)
    Trial — Instructions—Repeating Rule¡ as to Reasonable Doubt not Required. The court, instructing' the jury in a criminal case, is not obligated to repeat over; and over again the words “beyond a reasonable doubt,” where írom a reasonable interpretation of the instructions as a whole it must be apparent to the jury that every material issue must be established beyond a reasonable doubt.
    Appeal from District Court, Bryan County; Geo. S. 'March, Judge.
    Warner H. Edwards was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    W. E. Utterbaek and D. S. MacDonald, for plaintiff in error. .

      Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, Warner H. Edwards-, here designated the defendant, was on April 22, 1921, by verdict of a jury found guilty of manslaughter in the first degree and his punishment assessed at confinement in the state penitentiary for a term of four years. From the judgment on the verdict he appeals.

The facts disclosed by the state’s evidence are that Bailey Bacon and Ed Hampton, the deceased, were hauling sand through a field belonging to A. J. Edwards, the father of the defendant, on the morning of the day on which the tragedy occurred; that they were driving across some rows of corn and that A. J. Edwards met them in the field and asked them not to drive over his corn, but to go around by the road; that at this time there was no particular unpleasantness and no unfriendly words were spoken. Just before noon Ed Hampton, the deceased, who lived some 300 yards west of the Edwards house, started to the Edward house to see the senior Mr. Edwards, stating that he understood Edwards had sent him some message by his wife. Bacon asked him not to go, but Hampton continued on toward the Edwards home; Bacon following close behind and taking with him a sack of corn that had been knocked down when they were driving across the field that morning. When they reached the house they found the senior Mr. Edwards sitting on the porch and Ed Hampton asked him what kind of a message it was that he had sent him. Edwards denied sending any message, whereupon Hampton advanced on him in a threatening manner and made some statement about striking him. Mr. Edwards got up out of his chair and retreated from Hampton, who then climbed up on the porch and followed Mr. Edwards a short distance, and took hold of the chair in which Mr. Edwards had been sitting, raised it from the floor and lowered it again. Warner H. Edwards, the defendant, then came out of the east room, a few feet east of where Hampton and Edwards were standing, stepped off the porch and shot the deceased with a shotgun, shooting him a second time after he got off the porch.

The defendant claimed that he was justified in the shooting, claiming that it was necessary in the protection of his father who was apparently about to be injured by the deceased. The testimony on the part of the defendant tended to show that the deceased, Hampton, advanced on the senior Edwards as he was sitting at the end of the porch, cursing him and threatening to break his neck; that the defendant, who was sitting at the other end of the porch, east of where his father was sitting, heard this, and that he thereupon stepped into the room and procured a shotgun and walked back out and stepped off of the porch; that at that time deceased was threatening defendant’s father with the chair, which he was holding in a threatening manlier; that his father retreated some distance up the porch with his arm upraised to ward off the blow, and that whilé he was in this position the defendant fired both shots as rapidly as he could fire a double-barreled shotgun. Defendant testified that he believed at the time that it was necessary to shoot in ■order to protect his father from the threatened danger.

There was evidence, undisputed, that Warner H. Edwards, the defendant, was a man of good reputation as a peaceable, law-abiding citizen; also, evidence tending to show that the deceased was of a turbulent and quarrelsome disposition and was a dangerous man, and that the defendant knew this. There was evidence to show that the deceased was a large man physically, well developed and able-bodied; and that the defendant’s father was an aged man and feeble.

The only alleged error of which complaint is made in defendant’s brief is that instructions numbered 15, 16 and 17 given by the court did not fairly and correctly state, the law as to the issues ■ of fact relating to apparent, danger, provocation, and intent.

The court in this case gave twenty-two instructions, covering every phase of homicide warranted by the evidence, including appropriate instructions- on justification, self-defense, and reasonable doubt. It would serve no good purpose to quote these instructions or analyze them in detail. We have carefully examined them, separately and' as a' whole, and find that they fairly and clearly state the law of the case, and that the objections thereto are without merit. Particular emphasis is placed on objections to the language used in instruction No. 17, because of an omission to use, at two or three places in the instruction, the words "beyond a reasonable doubt.” The question of reasonable doubt was clearly treated and stressed in other instructions, and an instruction will not be held erroneous for a failure to repeat and reiterate, over and over again, the term "beyond a reasonable doubt” when it appears that in that and other paragraphs of the instructions the court has made it clear to the jury that every issue of fact raised must be proved beyond a reasonable doubt. Davis v. State, 16 Okla. Cr. 377, 182 Pac. 909; Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308; Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 168; Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901.

It would seem that it was unnecessary for the defendant to resort to the use of firearms under the circumstances in this case. The father and son together should have been able to protect the father from a threatened assault and battery with a chair without firing a gun. Under the evidence, as- shown by the record, tbe defendant sbonld consider himself fortunate that the verdict was for manslaughter and that the punishment assessed was the minimum for the offense of which he was found guilty.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

MATSON, P. J., absent and not participating.


author: PER CURIAM.

text:
    ZARA GREEN v. STATE.
    No. A-3966.
    Opinion Filed July 26, 1923.
    (216 Pac. 1118.)
    Appeal from County Court, Custer County; E. J. Lindley, Judge.
    Zara Green was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    A. E. Darnell, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Zara Green, was convicted on a charge that he did unlawfully transport and convey one quart of corn whisky from a point in Custer county, the exact place being unknown, to another point designated, and was by the court sentenced to be confined for 30 days in the county jail and to pay a fine of $50. An appeal from the judgment was taken by filing in this court on April 16, 1921, a petition in error with case-made. On May 31, 1922, his counsel of record filed a motion to dismiss the appeal, which motion on the same day was sustained, and the appeal herein dismissed.


text:
    C. G. McGOVERN v. STATE.
    No. A-3968.
    Opinion Filed July 26, 1923.
    (216 Pac. 1118.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    C. G. McGovern was convicted of a violation of the prohibitory liquor law and he appeals.
    Affirmed.
    H. F. Tripp, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge that he did have in his possession 12 pints of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 90 days and to pay a fine of $400. Prom the judgment rendered on the verdict, he appealed by filing in this court on April 16, 1921, a petition in error with case-made. No brief has been filed. The proof on the part of the state is conclusive' and uncontroverted. An examination of the record discloses that the errors assigned are destitute of merit. The judgment of the lower court is therefore affirmed.


author: DOYLE, J.

text:
    LENA ISAAH v. STATE.
    No. A-4026.
    Opinion Filed July 26, 1923.
    (216 Pac. 950.)
    (Syllabus.)
    1. Indictment and Information — -When Charging Offense in Language of Statute Insufficient. The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particular circumstances of the offense charged are necessary to constitute a complete offense.
    2. Same — Information Charging Keeping Disorderly House. The information charged that defendant did “commit the crime of keeping a disorderly house in the manner and form as follows: That is to say, the defendant did in said county and state, at the above-named time and place, wilfully and unlawfully keep a disorderly house.” . Held, the information does not state facts sufficient to constitute a public offense.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Lena Isaab was convicted of keeping a disorderly bouse, and sbe appeals.
    Reversed.
    King & Crawford, for plaintiff in error.
    Tbe Attorney General, and N. W. Gore, Asst. Atty. Gen., for tbe State.
   DOYLE, J.

This appeal is from a judgment of the county court of Pontotoc county, rendered in pursuance of a verdict convicting Lena Isaab of the offense of keeping a disorderly bouse, .and fixing her punishment at confinement for 30 days in the county jail and a fine of $50.

Omitting parts purely formal, tbe information charges that Lena Isaab, did commit "the crime of keeping a disorderly bouse in the manner and form as follows: That is to say, tbe defendant did, in said county and state, at tbe above-named time and place, wilfully and unlawfully keep a disorderly house in! the north part of Ada, Pontotoc county, Okla., contrary,” etc.

Defendant interposed a demurrer on the- ground that tbe information does not state facts sufficient to constitute a public offense, which demurrer was overruled and exception allowed.

While, as a general rule, it is sufficient to charge a statutory offense in the language of the statute, there are exceptions to the rule.

Bishop says:

“The criminal nature and degree of the offense must ‘appear in allegation, ’ also tbe particular facts and circumstances which render the defendant guilty of that offense. ’ ’ 1 Bishop’s Crim. Proc. par. 625; Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360: Sletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331; Wilcox v. State, 13 Okla. Cr. 599, 167 Pac. 74; Cole v. State, 15 Okla. Cr. 361, 177 Pac. 129.

A house in which people abide and disturb the order and tranquility of the neighborhood is a “disorderly house,” and such facts should be alleged in an information charging the keeping of a disorderly house.

It follows that the court erred in overruling the demurrer to the information. The judgment is accordingly reversed, and the cause remanded, with direction to sustain the demurrer.

MATSON, P. J., and BESSEY, J., concur.


text:
    ZELDA TUNNELL v. STATE.
    No. A-3932.
    Opinion Filed July 26, 1923.
    (216 Pac. 951.)
    (Syllabus.)
    1. Trial — Error for Judge to Relinquish Control Over Proceedings. The presence of the judge is essential to the organization of the court; and where, in the progress of a criminal trial, the judge temporarily relinquishes control over the proceedings or abandons the trial, a judgment of conviction will be reversed.
    2. Same. In a criminal trial, after the retirement of the jury to deliberate, and until the verdict is rendered or the jury discharged in! due course of law, it is the duty of the judge to be where he can respond to any call for the exercise of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial.
    3. Same — Verdict Received in Absence of Judge Held Nullity. The reception of a verdict is a judicial act which cannot be delegated; and where, in a prosecution for a misdemeanor, the jury having retired to deliberate of their verdict, the judge became incapacitated to further proceed with the trial on account of illness, and the following day by agreement of counsel a member of the bar received th© verdict, held, that the verdict so received is a nullity, and no judgment of conviction could be lawfully pronounced upon it by the court.
    Appeal from County Court, Payne County; "Wilberforce Jones, Judge.
    Zelda Tunnell was convicted of manufacturing intoxicating liquors, and she appeals.
    Reversed.
    P. D. Mitchell and W. M. Taylor, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The appellant, Zelda Tunnell, was convicted on a charge that she did unlawfully manufacture whisky, and in accordance with the verdict of the jury she was sentenced to be confined in the county jail for 30 days, and to pay a fine' of $100.

The evidence shows that the defendant resided with her husband and children on their farm south of Yale, near the Cimarron river; that the sheriff and three deputies found, a still in operation not far from the home of the defendant. Three deputy sheriffs testified that when they first saw the defendant she was 15 or 20 feet from the still, and was walking towards it. Sheriff Lilly testified: “Mrs. Tunnell was poking the fire under the still when I first saw her.”

As a witness in her own behalf the defendant testified:

“Wade Tunnell is my husband. I was in the truck patch near the river about-200 yards east of the house when I first saw the officers. I was picking tomatoes and saw some smoke in the brush; looked like it was near a haystack; and I walked over there and met Sheriff Lilly and the other officers. I had never seen the still before that time. I never did make any whisky or do anything in the way of operating the still. It was not on our land.”

It is contended by counsel for appellant that the judgment of conviction should be reversed for the following reason: Error in overruling the motion in arrest of judgment based on the ground that the verdict of the jury was returned in the absence of the trial judge. The record shows that the trial commenced November 8, 1920, and the following afternoon the jury retired to consider of their verdict. While the jury were deliberating Judge Jones became seriously ill. The next morning he was unable to return to the courthouse. About 10 a. m. the jury informed the bailiff that they were ready to report, a messenger was sent to notify the trial judge, and the judge sent word to the court clerk that he was not in condition to hold court, and advised that the jury be discharged, and thereupon the county attorney and W. M. Taylor, one of the attorneys for the defendant, in the absence of the defendant, agreed that John P. Hickam, a member of the bar, should act as special judge to receive the verdict of the jury in the absence of Judge Jones. Judge Hickam took the bench, and the jury were conducted into the courtroom. They returned their verdict and were discharged by Judge Hickam. The Attorney General confesses error, saying:

“There is no law that we can find that authorizes a change of judge during the trial, and certainly there is- none that would authorize a member of the bar to receive the verdict of the jury, order it read and filed, and make an order discharging the jury.”

In a legal sense the judge of a court is the court, and there can be no court without a judge. In Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, L. R. A. 1917 E. 1085, it is said:

“Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. In many cases this court has held that it is the duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him, and, when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed. Stiles v. State, 9 Okla. Cr. 596, 132 Pac. 822; Wright v. State, 7 Okla. Cr. 280, 123 Pac. 434; Cochran v. State, 4 Okla. Cr. 380, 111 Pac. 974. It is a fundamental principle of law that judicial power cannot be delegated, and a verdict of conviction, to be of any validity, must be delivered in open court.
“Under the following provisions of our Procedure Criminal, the presence of the presiding judge during the entire course of the trial is essential, and the receiving of the verdict is a' judicial act, which cannot be delegated. * * * ‘After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.’ (Comp. Stats. 1921, § 2730.) * * * While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged.’ (Section 2734.) ‘When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered,’ and ‘if the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it.’ (Sections 2742 and 2743.) ‘When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.’ (Section 2745.)
“Under these provisions, after the' retirement of the jury to deliberate and until a verdict is rendered, or the jury discharged in due course of the law, it is the duty of the presiding judge to be where he can respond to any call for the exercise of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial, and such judge cannot delegate these judicial functions to another, even with the consent of the parties. It is well settled that in prosecutions for felonies the continuous presence of the judge during the entire course of the trial is indispensible, and that, whether objection be or be not made, a conviction will be reversed in the case of his improper absence. ’ ’

In McClure v. State, 77 Ind. 287, it is held that the reception of a verdict is a judicial act which cannot be delegated, and where after a cause has been given to the jury the judge, desiring to go home, designates an attorney of the court to receive the verdict, which is done, the verdict is a nullity, and the fact that the defendant assented thereto does not give it validity. See, also, Ellerbe v. State, 75 Miss. 522, 22 South. 950, 41 L. R. A. 569; York v. State, 91 Ark. 582, 121 S. W. 1070, 18 Ann. Cas. 344; Skaggs v. State, 88 Ark. 62, 113 S. W. 346, 16 Ann. Cas. 622; O’Brien v. People, 17 Colo. 563, 31 Pac. 230; Meredeth v. People, 84 Ill. 479; Durden v. People, 192 Ill. 493, 61 N. E. 317, 55 L. R. A. 240; People v. McPherson, 74 Hun, 336, 26 N. Y. Supp. 236; State v. Carnagy, 106 Iowa, 487, 46 N. W. 805. On principle and reason the determining test is whether the judge has lost control of the proceedings. If he has done so, the integrity of the trial is destroyed.

The record in this case shows that the jury were without any judicial supervision whatever from the time the jury retired to deliberate on their verdict until they returned their verdict the following day, and then, by consent of counsel, a member of the bar assumed to act as special judge for the purpose of receiving the verdict and discharging the jury.

Applying tbe well-establisbed rules of law enunciated in the eases quoted, it is our opinion that the verdict of the jury was a nullity, and that no judgment of conviction could be lawfully pronounced on it by the court.

The remaining assignments of error need not be considered.

For the reasons stated, the judgment is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    E. E. GIBBONS et al. v. STATE.
    No. A-4014.
    Opinion Filed July 28, 1923.
    (216 Pac. 950.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Supporting Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquors, evidence held sufficient to support the verdict and judgment of conviction.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    E. E. Gibbons and another were convicted of the violation of the prohibitory liquor law, and they appeal.
    Affirmed.
    Stewart & Edwards, for plaintiffs in error.
    George F. Short, Atty. Gen., N. W. Gore, Asst. Atty. Gen., and Leon S. Hirsh, Special Asst. Aitty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried and convicted on an information which charges that E. E. Gibbons and Emmitt Sapp, in Harmon county, on or about the 27th day of January, 1921—

“did knowingly, willfully, and unlawfully have in their possession about 50 gallons of certain spirituous, vinous, fermented, malted, and intoxicating liquor, to wit, ‘corn whisky’ and corn! mash, which contained more than one-half of 1 per cent, of alcohol measured by volume, and capable of being used as a beverage, with the unlawful intent then and there, on the part of the said E. E. Gibbons and Emmitt Sapp, to sell, barter, give away, and unlawfully dispose of the same contrary to,” etc.

May 4, 192.1, the court rendered judgment and sentenced each defendant to be confined in the county jail for six months and to pay a fine of $500. From the judgment they appealed.

Upon arraignment the defendants interposed a demurrer to the information on the ground that the facts stated do not constitute a public offense, which was overruled. Counsel contend that the information is so vague, indefinite, and uncertain that'the defendants were not thereby apprised of the nature of the accusation against them, and for this reason the court erred in overruling the demurrer thereto.

All the statute requires is that the acts charged as the offense be stated with such a degree of certainty, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended and the court to pronounce judgment upon a conviction according to the law of the case. Comp. Stats. 1921, §§ 2555, 2563. The information fully complies with the above requirements, and the demurrer thereto was properly overruled.

It is contended that the verdict is not sustained by the evidence. The testimony of seven witnesses supports the allegations of the information. The defendants did not testify. We think the testimony, without any doubt, is ample to sustain the conviction.

We discover no error in the record, and the judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: MATSON, P. J.

text:
    CECIL GUTHERY v. STATE.
    No. A-4065.
    Opinion Filed July 28, 1923.
    (216 Pac. 948.)
    (Syllabus.)
    1. Evidence. — Confessions—Burden of Proof of Admissibility. Prima facie any confession is admissible in evidence, and where its admissibility is challenged by the defendant the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.
    2. Burglary — Specific Proof of Incorporation of Owner of Building Held not Essential. Where in an information' for burglary it is alleged that the building burglarized was the store building of the Farmers’ Supply Company, a corporation, specific proof that such supply company was duly incorporated was not essential where there is evidence inferentially indicating such incorporation and there was no controversy on this issue.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Cecil Guthery was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    Bert Yan Leuven, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 7th day of February, 1921, the county attorney of Nowata county filed in the district court of said county an information charging the plaintiff in error, Cecil Guthery, jointly with three other persons with the crime of burglary in the second degree, alleged to have been committed in said county on or about the 16th day of January, 1921, by breaking and entering the store building of the Farmers’ Supply Company, a corporation, located in the city of Delaware, Nowata county, from which said store building certain personal property belonging to said supply company, including shotguns, rifles, automobile casings, shotgun shells, inner tubes, and other merchandise, was taken. The plaintiff in error, G-uthery, asked for a separate trial, which was granted, and said trial was begun on the 3d day of March, 1921, resulting in a verdict of guilty, with punishment assessed at imprisonment in the penitentiary for a period of two years. Motion for a new trial was in due time filed and overruled, and judgment rendered against defendant in conformity with the verdict. From such judgment plaintiff in error has appealed to this court by filing herein on the 8th day of September, 1921, his case-made with petition in error attached. The questions presented do not require a detailed statement of the facts, and such statement will be omitted from the opinion.

During the progress of the trial the state introduced the witness W. R. Brady, who testified that he was the manager of the Farmers’ Supply Company store at Delaware, Okla., and in the progress of this witness’ examination the state offered to prove an alleged confession made by this plaintiff in error to said witness Brady and others in the county attorney’s office in the city of Nowata shortly after plaintiff in error’s arrest on this- charge. Counsel for plaintiff in error interposed an objection to the witness Brady giving any testimony with reference to the statements made by plaintiff in error at the county attorney’s office for the reason that such statements were involuntarily made, and counsel requested' that the witness be then examined in the absence of the jury to determine whether or not such statements were voluntary or involuntary, and the trial court thereupon excused the jury under proper admonition, and the jury retired from the courtroom, and in the absence of the jury the trial court heard the evidence concerning such statements and overruled counsel’s objection to such statements, recalled the jury, and permitted the evidence to be introduced in the hearing of the jury. It is here contended that this action on the part of the trial court was clearly prejudicial to the substantial rights of plaintiff in error for the reason that the purported confession was involuntarily made, was induced by promises of immunity, and for such reasons was clearly inadmissible.

We have carefully examined the record in relation to the admissibility of this alleged confession. While the practice of the county attorney in calling the accused from the jail after his arrest to his office and there interrogating him in connection with this offense is .not approved, nevertheless it cannot be held that there is evidence in this record tending to show that the confession here made was induced by promises of immunity, or was in any other respect an involuntary confession. The plaintiff in error did not take the witness stand and testify to the circumstances under which the confession was made, and neither did he take the witness stand and testify in his own behalf on the merits of the ease. As to the confession, plaintiff in error relied solely upon the testimony of the witness Brady and that of the county attorney and others who were present in an effort to show the involuntary nature thereof, but the evidence of these witnesses, instead of showing that the confession was involuntary, on the contrary clearly prove its voluntary character, and as such testimony stands uncontra-dicted and unimpeached it is the opinion of this court that the defendant has not met the burden that rests upon him to, in the first place, establish the involuntary nature of this alleged confession. Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064.

It is also contended that the plaintiff in error was entitled to immunity from prosecution by reason of facts disclosed by him in his alleged confession. This contention is without merit. The alleged confession of plaintiff in error included no other person than himself in the commission of the offense. Under no circumstances, therefore, would he be entitled to immunity from prosecution under the provisions of section 27, art. 2, of the Constitution, and no plea of immunity was interposed in bar of the prosecution.

Further it is contended that there is an entire failure of proof to show that the Farmers’ Supply Company, the alleged owner of the building burglarized, was a corporation, as alleged in the information. There was no controversy in this case on the question as to whether or not the Farmers ’ Supply Company was or was not a corporation. All the witnesses testified that the building burglarized was the store building of the Farmers’ Supply Company. The circumstantial evidence all indicates that such company was a corporation. We think the evidence sufficient on this point under the recent holding of this court in Stephens v. State, 24 Okla. Cr. —, 217 Pac. 1063.

Finding no reversible error in the record, the judgment is affirmed.

BE'SSEY and DOYLE, JJ., concur.


text:
    JOHN DAVIS v. STATE.
    No. A-4089.
    Opinion Filed July 30, 1923.
    (217 Pac. 225.)
    Appeal from District Court, MeCurtain County; G-. M. Barrett, Judge.
    John Davis was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    McPherren & Cochran, for plaintiff in error.
   BESSEY, J.

John Davis, plaintiff in error, here designated the defendant, was on August 7, 1919, informed against for tbe crime of murder, alleged to bave been committed on the 23d day of Jnne, 1919, by shooting and mortally wounding D. H. Carr. At the trial, on September 11, 1920, the defendant was by a verdict of the jury found guilty of manslaughter in the first degree, and his punishment assessed at confinement in the state penitentiary for a term of eleven years. From the judgment on the verdict he appeals.

Defendant’s counsel of record have filed no briefs. By order of this court the cause was submitted on December 6, 1922, and the attorneys of record were notified that briefs would be considered if forthcoming. From this it may be assumed that the defendant has abandoned his appeal.

The court on January 2, 1923, made an order that the cause should be submitted on the record. Accordingly the record has been examined, including the pleadings, evidence, instructions to the jury, and other proceedings had at and anterior to the trial. Scarcely any. objections were made or exceptions taken to any of the proceedings, and we find those reserved are without merit.

The evidence discloses that the defendant and the deceased, a short time prior to the homicide, had had a personal encounter, and that both parties went armed, anticipating serious trouble one with the other. The defendant and the deceased met on the sidewalk or streets of Broken Bow, and the defendant drew his pistol and stepped out in front of the deceased and shot him. The deceased threw up his hands, and cried, “O, Lordy! 0, Lordy!” He then retreated, backwards, and the deceased fired again; and after the deceased turned and ran a little distance farther the defendant fired a third shot, which penetrated the body of the deceased just at the base of the skull, causing almost instant death. Two loaded pistols were found by the defendant upon or near the body of the deceased immediately thereafter. There is some conflict in the testimony as to whether! or not the deceased made any hostile demonstration at or just prior to the time the fatal shot was fired.

It would serve no good purpose to analyze the great volume of testimony; it is sufficient to say that there is ample cumulative evidence in the record to support the verdict. Indeed, this court would not find the evidence insufficient had the verdict been for murder instead of for manslaughter.

The court clearly and fairly instructed the jury in 30 different instructions, covering all the issues raised by the testimony, including self-defense, justification, mortal combat, and upon the question of whether the deceased or the defendant was the aggressor. Appropriate instructions on murder and homicide, as applied to the facts in evidence, were also given. The subjects treated in the instructions requested by the defendant were properly treated in the instructions given.

The judgment of the trial court is affirmed.

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


text:
    WILBUR SMITH v. STATE.
    No. A-4420.
    Opinion Filed July 31, 1923.
    (217 Pac. 502.)
    (Syllabus.)
    Appeal and Errar — Dismissal of Appeal Where Accused Accepts Parole. When an appeal from, a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole and accepts the same, and that fact is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, Texas County, Arthur G. Sutton, Judge.

      Wilbur Smith was convicted of assault with intent to kill, and he appeals.
    Appeal dismissed.
    F. Hiner Dale and Harris & Armstrong, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Wilbur Smith, was tried and convicted on an information which charged that in Texas county, on or about the 8th day of March, 1922, he with intent to kill did shoot at one Horatio Herne, with a pistol, and in accordance with the verdict of the jury he was on June 3, 1922, sentenced to be confined in the State Reformatory at Granite, for the term of 18 months. From the judgment an appeal was taken by filing in this court on July 27, 1922, a petition in error with case-made.

His counsel of record have moved to dismiss the appeal on the ground and for the reason that plaintiff in error has been granted a parole and has accepted the same. The uniform holding of this court is that when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a parole and the same is granted and accepted by the plaintiff in error, and that fact is brought to the attention of this court, the appeal will be dismissed as having been abandoned. Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912; Cowley v. State, 11 Okla. Cr. 561, 149 Pac. 924.

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

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte JOHN R. BRANNON.
    No. A-4782.
    Opinion Filed Aug. 2, 1923.
    (217 Pac. 1116.)
    Original proceedings by John R. Brannon for a writ of habeas corpus to be admitted to bail.
    Writ allowed.
    Campbell & Ray and J. R. Charlton, for petitioner.
    George F. Short, Atty. Gen., contra.
   PER CURIAM.

This is an original proceeding in which the petitioner, John R. Brannon, applies to this court for a writ of habeas corpus to be admitted to bail and alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Washington county, Okla., by Andrew Henderson, sheriff thereof; that the cause of said restraint is that he is charged in said county with the crime of rape alleged to have been committed on the 18th day of June, 1928, upon the person of one Mildred Luton. A copy of the information is contained in the petition and made a part thereof, and the petitioner contends that he is only charged in said information with rape in the second degree, a bailable offense under the statutes of this state. The information charges that the defendant committed said crime by means of force overcoming the resistance of the said Mildred Luton, and also, in addition, alleges that the said Mildred Luton was a female person under the age of 16 years, to wit, of the age of 14 years, and not the wife of the said John R. Brannon. Upon the hearing it was strenuously contended by counsel representing petitioner that rape committed upon al female between the ages of 14 and 16 years is under our statutory provisions rape in the second degree whether committed by force or violence or otherwise, and counsel cited several decisions of this court to support such contention. Without passing upon said question, as the same was not considered necessary to a determination of this application, the court concluded, in view of the fact that the petitioner is a boy only a few days past the age of 18 years, to, as a matter of discretion, admit petitioner to bail. The writ was therefore accordingly allowed and the petitioner admitted to bail in the sum of $10,000. Order to that effect was entered July 26, 1923.


text:
    J. B. FISCHER v. STATE.
    No. A-4207.
    Opinion Filed Aug. 4, 1923.
    (217 Pac. 227.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. Evidence examined and held sufficient to sustain the verdict and judgment, and that defendant had a fair and impartial trial.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    J. B. Fischer was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This' is an appeal from the county court of Stephens county, wherein on the 13th day of December, 1921, plaintiff in error was convicted of the crime of unlawful possession of intoxicating liquor and punishment assessed at a fine of $200 and imprisonment in the county jail for a period of 60 days. (

The sole question relied upon to reverse the judgment is that the evidence is insufficient to sustain the conviction. The facts are substantially as follows: Fischer lived on a farm about 5 miles east of the city of Duncan in Stephens county. Oil or about the 6th day of September, 1921, E. H. Rhyne, sheriff of Stephens county, together with one Gossett, chief of police of the city of Duncan, and Mr. Brown and Mr. Cleveland searched the premises of the defendant and found thereon 4 half-gallon fruit jars full of whisky. One of these jars was found buried in the ground in the cowshed about 50 yards from defendant’s house and three others under some corncobs in the hogpen adjoining the cowshed. Defendant was present at the time the search was made, and during the time the officers were on the premises some automobiles drove out to the defendant’s house on the road from Duncan and turned around and went back. The defendant testified that he had control of part of the barn or shed where some of the liquor was found, and that Nat Green, his brother-in-law, had control of part of it; that he (defendant) had no knowledge that the whisky was buried where the officers found it until after-wards, whenl he learned from one Tim Starr, who worked for Nat Green, that Nat Green had put the whisky out there, and on cross-examination the defendant testified that he did not tell the officers that Nat Green had anything to do with the premises nor did he later tell them he had learned from Starr that Green had put the whisky on the premises, and it also further developed that at the time of the trial both Green and Starr had left Stephens county.

The trial court fully covered the law of the case in the instructions, and no complaint is made of any instruction given. The jury was told that the defendant could not be convicted merely because intoxicating liquor was found upon his premises, but that the burden was upon the state, not only to prove possession in the defendant, but in addition to prove that the defendant intended to violate the prohibitory liquor laws of the state of Oklahoma by selling, bartering, giving away, and otherwise furnishing such liquor to other persons, and further that the defendant could not be convicted on circumstantial evidence unless the circumstances were such as to exclude every other reasonable hypothesis than that of the guilt of the defendant.

We deem the evidence sufficient to sustain the conviction. The whisky was found on premises occupied and controlled by the defendant at the time, and the amount possessed was such as to raise a presumption that the same was intended to be used in violation of law. The circumstances that the whisky was buried, that the defendant did not notify the officers that Green had anything to do with the premises at the time the search was made, and the further fact that the defendant waited until Green and Starr had left Stephens county before notifying the officers that they had anything to do with the premises where the liquor was found, are circumstances indicating a fabricated defense, and these circumstances, taken into consideration with the amount of liquor possessed and the circumstances under which it was found, are sufficient to sustain the judgment.

For reasons stated the judgment is affirmed.


text:
    H. B. JEWETT v. CITY OF TULSA.
    No. A-4775.
    Opinion Filed Aug. 4, 1923.
    (217 Pac. 1117.)
    Petition by H. E. Jewett and others for a writ of prohibition to be directed against the City of Tulsa.
    Cause dismissed.
    Rogers & Jones, for petitioners.
   PER CURIAM.

Petitioners, H. E. Jewett, C. W. Bishop, W. W. Bishop, and J. H. Powers, copartners doing'business under the firm name óf E. C. Waffle House, filed in this court July 21, 1923, their petition alleging certain facts and praying that á writ of prohibition issue to the municipal court of the city of Tulsa, and to G-. E. Warren, judge of said court, and Thomas I. Monroe, temporary judge of said court, commanding said court and said judges from proceeding to try petitioners, or their agents, servants, or employees, for the alleged violation of a certain ordinance of the city of Tulsa, at which times said application was assigned for hearing. In the meantime petitioners by their counsel of record have filed a motion to dismiss the cause, which motion is sustained and the cause dismissed.


text:
    J. F. CONNER v. STATE.
    No. A-4160.
    Opinion Filed Aug. 4, 1923.
    (217 Pac. 226.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    - J. F. Conner was convicted of failing and refusing to compel his minor child to attend school, and he appeals.
    Appeal dismissed.
    Bishop &' Roberts, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a purported appeal from the county court of Major county from a judgment rendered on the 5th day of September, 1921, convicting plaintiff in error of the offense of failing and refusing to compel his minor child to attend school as required by law and assessing against him a fine in the sum of $25 and costs of the prosecution.

The petition in error and case-made were not filed in this court until the 5th day) of January, 1922, more than .120 days after the rendition of the judgment in the lower court. This being a conviction for a misdemeanor, the longest period of time allowed by statute for perfecting an appeal from the judgment is 120 days after the rendition thereof.

The Attorney General has filed a motion to dismiss the appeal for the reason that the purported appeal was not filed in this court until 122 days after the rendition of the judgment, and for such reason this eourt has acquired no jurisdiction to hear the appeal on the merits.

The motion to dismiss the appeal is sustained. Boyle v. State, 15 Okla. Cr. 659, 179 Pac. 945, and cases cited therein.


text:
    Ex parte BILL SMITH.
    No. A-4784.
    Opinion Filed Aug. 6, 1923.
    (217 Pac. 1118.)
    Application by Bill Smith for writ of habeas corpus tn be admitted to bail.
    Writ granted, and bail allowed.
    Gaylord R. Wilcox, for petitioner.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an application by Bill Smith for ai writ of habeas corpus to be admitted to bail. Petitioner alleges that he is unlawfully restrained of his liberty and imprisoned in the county jail of Creek county, Okla., by Abner Bruce, sheriff of said county; that petitioner is being held by virtue of a commitment of imprisonment issued by J. H. N. Cobb, justice of the peace of Sapulpa township, Creek county, Okla., upon a; preliminary examination in the case of State of Oklahoma v. Bill Smith upon a criminal complaint and warrant of arrest charging petitioner with the crime of murder, alleged to have been committed in said county on the 18th day of March, 1923, by killing one S. T. Whipps; that a preliminary examination of petitioner was held on April 27, 1923, before said justice of the peace, and petitioner was held to answer said charge to the district court of Creek county and remanded to the care and custody of the sheriff of Creek county without bail; that on the 9th day of July, 1923, petitioner applied to Hon. Fred A. Speakman, one of the judges of the district court of Creek county, for writ of habeas corpus to be admitted to bail on said charge, and that witnesses both for the state and petitioner were sworn and examined and their testimony taken and transcribed in said hearing,, and that said testimony, together with the testimony taken at the preliminary examination, is attached to said application and made a part of said petition; that at the conclusion of the hearing of said writ of habeas corpus in the district court of Creek county bail was denied petitioner, and petitioner alleges that he is illegally deprived of his liberty in that he is not guilty of murder as charged, and that said crime is a bailable one, and that the proof of his guilt is not evident nor the presumption thereof great. Accompanying the petition is a stipulation by the Attorney General, the county attorney of Creek county, Okla., and the attorney for the petitioner, that the application be submitted and petitioner’s right to bail be determined upon the testimony presented to the judge of the district court of Creek county without further notice to either party. The petitioner at the time of the killing claims to have been acting in his necessary self-defense. We deem it inadvisable to enter into an extended discussion of the evidence further than to say that, after considering the entire record, it is our opinion that an issue of manslaughter in the first degree is presented by the evidence. The court is of the opinion, therefore, that the petitioner should be admitted to bail in this case. Bail is therefore fixed in this case in the sum of $20,000 for the appearance of the said Bill Smith to answer charge in the district court of Creek county, conditioned as provided by law; said bond to be approved by the court clerk of Creek county, Okla., and upon approval of said bond the said defendant (petitioner) to be discharged from custody by the sheriff of said county.


author: BESSEN, J.

text:
    WILLIAM HALL v. STATE.
    No. A-4091.
    Opinion Filed Aug. 14, 1923.
    (217 Pac. 229.)
    (Syllabus.)
    1. Removal or Disposal of Mortgaged Property. As to the uses and abuses of prosecutions for removing- or disposing of mortgaged property, see the text of the opinion.
    2. Chattel Mortgages — Disposing of Property — Effect of Prior Termination of Original Obligation Seculredi.. Where a chattel mortgage is given as a collateral contract to assure the performance of a prior original obligation, and where the original obligation by mutual consent or otherwise is ended, the collateral obligation also ceases, and thereafter will not support a prosecution for disposing of mortgaged property. Whether such were the facts here, or whether the original obligation wias altered or modified at the time of the alleged disposal of the mortgaged property does not appear.
    3. Prosecuting Attorney — Improper to Permit Persons to Use Penal Statute for Private Ends. A prosecuting attorney should not permit private persons to use a statute penalizing a person for disposing of mortgaged property as a means of making private collections, or to compel an individual to make a monetary settlement of a private claim, or failing to do so, suffer the odium and danger of a criminal prosecution. Such practice is especially repugnant to- our conception of the proper use of criminal process, and is unethical when perpetrated by an interested private prosecutor, either with or without the consent of the prosecuting attorney.
    Appeal from District Court, Texas County; Arthur G. Sutton, Judge.
    William Hall was convicted of disposing of mortgaged property, and he appeals.
    Reversed.
    John L. Gilson, for plaintiff in error.

      The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEN, J.

William Hall, plaintiff in error, here referred to as the defendant, was by information filed on the 30th day of November, 1920, charged with having on the 30th day of November and other dates anterior thereto, disposed of and removed mortgaged property. At the trial, on May 7, 1921, he was by a verdict of the jury found guilty. The jury failing to assess the penalty, the court in rendering judgment on the verdict assessed the punishment at two years in the penitentiary. From this judgment he appeals.

We are constrained to hold that this case should be reversed on general principles for several reasons, any one of which, standing alone, might not amount to reversible error, but which, considered together, make it apparent that this was a prosecution instituted and carried on by private individuals, handled by an interested private prosecutor, at the public expense of the county, for the purpose of effecting or forcing an adjustment of contractual claims between private individuals, and that the defendant did not have such a fair and impartial trial' as- is contemplated by law. After reciting the facts, the reasons for such a conclusion will be stated.

The testimony shows that on the 15th day of October, 1919, the defendant came to Texas county from near Alva, where he had been residing, and entered into negotiations with W. L. West for the purchase of 320 acres of land; that after prolonged negotiations and much changing of terms and conditions W. L. West and R. 0. West sold him this land. In the course of time the defendant, with five sons and one daughter, took possession of the land so purchased.

It was provided in the original agreement that the defendant should procure a loan on this land of the amount of $5,000, from the school land department, or elsewhere, and with the money so obtained make an initial payment, and should give notes and mortgages securing the deferred payments. It later developed that the defendant could not procure a loan for $5,000, but could and did obtain a loan for $3,500, which sum was passed to the credit of the grantors. That having been done, the defendant executed five notes for $650 each, amounting in the aggregate to $3,250; in addition, he executed five other notes of $1,850 each, totaling $12,500; the aggregate amount of the notes and mortgages being $16,000, the purchase price of the land. During the pendency of the negotiations, the notes, mortgages and deeds of conveyance were deposited in escrow.

At the time of these transactions there was a growing crop of maize on the land. It is claimed by the state that, in addition to the cash payment, notes, and mortgages given for the purchase price of the land, the defendant executed a collateral mortgage for $650, covering this crop of maize, the proceeds of which were to be applied upon one or another of the notes given for the purchase price of the land, as above stated. The defendant denies that he ever executed this collateral mortgage. The testimony on this point is in direct conflict; there being testimony to support the prosecution’s claim and equally strong testimony refuting it.

The defendant admits that' he sold the maize that was growing upon the land at the time he made the purchase, and that he appropriated the proceeds to his own use. There is evidence to the - effect that he also gave a mortgage upon the crop grown upon this land the following year, and that there were suits, controversies, and foreclosure proceeding growing out of that transaction.

It appears that when these mortgages were given Earl Martin, an attorney at law of Hooker, Okla., was the attorney for the grantors; that he drew some or all of the contracts, mortgages, and notes in question, including the $650 mortgage purporting to be a collateral obligation upon which this prosecution is based. Mr. Martin was a witness to' the signature to this collateral mortgage, or purported mortgage, and was one of the chief witnesses for the state in this prosecution. Notwithstanding that fact, the record discloses that he appeared in the trial court as a special prosecutor, and that he actively aided the prosecuting attorney in this prosecution.

It appears from the evidence, inferentially at least, that no further payments were ever made by the defendant upon the land, and that some time during the year 1920 the land reverted back to the grantors — just in what manner the record does not disclose.

The defendant denies executing the chattel mortgage here at issue. Upon that point the evidence is sharply conflicting. Excluding the testimony of the special prosecutor, who was also the attorney for the prosecuting witness in civil matters growing out of the same transactions, the testimony indicates that the defendant did not sign nor authorize the signature of this collateral chattel mortgage. Photographic copies of several admitted signatures of the defendant, considered with other testimony, indicate that this signature was in a different handwriting. This was corroborated by a handwriting expert. On the other hand, the special prosecutor testified that the defendant did sign this mortgage, and that he also signed it, along with Charles Crittenden, as witness. Crittenden would not say positively that the defendant was the person who signed as mortgagor. Maggie Hall, daughter of the defendant, who sometimes transacted business for her father, says she signed her father’s name to the instrument at her father’s home, in his absence, at the request of Mr. Martin, the special prosecutor. Earl Hall, a son, testified that he was present when his sister signed her father’s name to the instrument, and that she did so at the request of Mr. Martin, who stated to her that it was a paper they had overlooked when the father, William Hall, attached his signature to other papers the previous day. The state also introduced expert evidence tending to show that the signature to this mortgage was made by the defendant. Under such state of the evidence the jury found for the state upon this issue, and the conflict in the evidence, considered alone, would not justify this court in setting the verdict aside, but such irregularly obtained and unsatisfactory evidence may and should be taken into consideration in connection with other things disclosed by the record, viz.:

1. This was a chattel mortgage, collateral to a real estate transaction. Query: If the original or principal transaction fails through mutual mistake or by agreement of parties, then would not the collateral transaction fail with it? The evidence raises an inference that the original real estate deal some months later was abandoned or settled in some other manner, and that the land reverted to the grantors. If that be true, would not the collateral' contracts depending* upon it also fail and be insufficient to sustain a conviction for disposing of the property covered by such collateral contracts or mortgage?

2. The act making it a crime to dispose of mortgaged chattels is, when properly invoked, a salutary statute, intended to punish offenders who violate the spirit of its provisions; but a prosecuting attorney should not permit private individuals to use this penal statute as a means of making private collections or to compel the accused to make a monetary settlement of a private claim, or, failing to do so, suffer the odium and danger of a criminal prosecution. Such practice is especially repugnant to our conception of the proper use of criminal process, and is unethical when perpetrated by a private prosecutor, either with or without the consent of the prosecuting attorney. Weitz v. State, 24 Okla. Cr. 56, 215 Pac. 962.

3. The impropriety of an attorney who is employed by and professionally represents a private person as his attorney, in a transaction concerning property later directly involved in criminal prosecution in acting as a special prosecutor in that prosecution, is manifest. In Weeks on Attorneys at Law, § 282a, it is said:

“The prosecuting attorney is a sworn minister of justice whose duty it is to see that the innocent are protected as well as that the guilty are brought to punishment, and who must stand indifferent as- between the accused and any private party.”

We think no argument is necessary to demonstrate that a special prosecutor is a special assistant to the county attorney for the particular case in which he appears, with like duties and qualifications. 22 R. C. L. Prosecuting Attorneys, § 7.

In Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821, the court, quoting with approval from People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636, said:

“The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. * * *
‘ ‘ This rule is a rigid one, designed not only to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.” 1 Thornton on Attorneys, § 174.

Again quoting from the Steeley Case:

“Such an officer (county attorney) is acting in a quasi judicial capacity, and he and those associated with him should represent public justice and stand indifferent as between the accused and any private interest.* * * The canons of ethics of the American Bar Association and various state associations in this country are in accord on this subject. * * * An attorney cannot be permitted to assist in the prosecution in a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.”

Mr. Martin, through his professional relations had not only previously acquired knowledge of the facts and had a prior professional connection with the property involved in the prosecution, but also testified for the state, at length, concerning the disputed transactions in which he had been interested as a private attorney for the prosecuting witness, showing conclusively that he was not an impartial, quasi judicial officer in the prosecution as is contemplated by law. True, no objection was made at the trial to Mr. Martin’s participation in the case as a special prosecutor, but the error we think is one that this court should consider, even though no objections were made.

All things considered, we conclude that the judgment of the trial court should be reversed, and it is so ordered.

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


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    GEORGE PEPPERS v. STATE.
    No. A-4122.
    Opinion Filed Aug. 15, 1923.
    (217 Pac. 227.)
    (Syllabus.)
    Intoxicating Liquors — Conviction for Unlawful Possession Sustained. Record examined, and held, evidence sufficient to sustain the conviction, and that no reversible error appears.
    Appeal from County Court, Bryan County; John Finney, Judge.

      George Peppers was 'convicted of unlawful possession of intoxicating liquors, and he appeals.
    Affirmed.
    McPherren & Hannah, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction rendered against plaintiff in error in the county court of Bryan county on the 17th day of September, 1921, in accordance with a verdict of a jury finding the defendant guilty of the crime of unlawful possession of intoxicating liquor and assessing his punishment as above stated.

The evidence discloses that the sheriff of Bryan county, anned with a search warrant, went to the home of plaintiff in error, and after having read the search warrant to plaintiff in error searched his premises, and found concealed in a loft over the kitchen in plaintiff in error’s house three half-gallon cans and two quarts of whisky; that there was no entrance to this loft, except through a hole in the ceiling of the kitchen; that to get the whisky it was necessary to pull a table and chair up under this hole in the ceiling in order to climb into the loft.

Defendant admitted the possession of the whisky, but stated that he had it for his owni use and with no intention to violate the prohibitory liquor laws; that he used it for medicine for rheumatism. On cross-examination he testified that he had found the whisky on his place about three weeks before and that he believed it belonged to a man by the name of Edwards, who had left the country. He also admitted that he had told the county attorney on the day of his arrest that he supposed the whisky belonged to his hired hand, but did not think he made the statement that he did not know it was there.

It is contended the evidence is insufficient to sustain the conviction. The quantity of whisky found is sufficient to raise a presumption that it was possessed for the purpose of violating the liquor laws. In addition to this presumption, there is the evidence of the concealment of the whisky in an. inaccessible place and the conduct of the defendant in concealing the fact that the whisky was on his premises for at least three weeks after he had found it and before the search was made, and in addition thereto the apparently contradictory statements of the defendant, made at the time of his arrest and as a witness. The defendant took the witness stand and attempted to overthrow this incriminating evidence by testifying that he possessed the whisky for his own use as medicine. There was presented a conflicting issue of fact for the jury to determine. This court will not disturb the verdict, as the evidence for the state and the inferences reasonably flowing from the facts and circumstances adduced by the state are sufficient to sustain the verdict and judgment.

It is also contended that the trial court erred in instructing the jury as to the law of the case and in refusing to give requested instructions. The general charge sufficiently covers the law of the base, and in the opinion of this court it is neither misleading nor contradictory. The request to. direct the jury to return a verdict of not guilty .was properly refused. The other requested instruction was sufficiently covered in the general charge.

Judgment affirmed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.


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    LOUIE KEELER v. STATE.
    No. A-4111.
    Opinion Filed Aug. 15, 1923.
    (217 Pac. 228.)
    (Syllabus.)
    1. Criminal Law — Plea to Merit as Waiver of Objections to Illegality of Arrest. Where the defendant pleads to the merits of a criminal action, he waives all objections to the illegality of his arrest.
    2. Appeal and Errom — Necessity for Objections Below — Evidence. Where it is contended that the trial court erred in permitting the introduction of incompetent,, irrelevant, and immaterial evidence, and the record shows that no objection was made to such evidence, and further that a large poriton of the evidence com- ' plained of was elicited by counsel for defendant in cross-examination of a state’s witness, no reviewable question is presented.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Louie Keeler was convicted of unlawful possession of intoxicating liquor, and lie appeals.
    Affirmed.
    King & Crawford, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a prosecution by information filed in the county court of Pontotoc county on the 2d day of April, 1921, jointly charging the plaintiff in error Louie Keeler, Joe Hardin, and Walter Oliver with the crime of unlawful possession of intoxicating liquor. A joint trial resulted in the acquittal of Joe Hardin and Walter Oliver and the conviction of Keeler with punishment assessed as above stated. Keeler has appealed to this court, and errors assigned will be considered in the order presented in the brief.

It appears from the record that on the day the information was filed a warrant for arrest was issued for the defendant signed by L. E. Franklin, court clerk. It further appears that on the 5th day of April, 1921, the defendants were brought before the court for arraignment, and the minutes of the clerk show that the defendants waived time in which to plead and pleaded not guilty to the charge. Thereafter on the 12th day of July, 1921,. the cause was called regularly for trial, at which time counsel for the defendants moved the court to quash, set aside, and hold for naught the pretended warrant issued for the reason that the court clerk had no authority to issue said warrant. After a hearing the court overruled the motion and the defendant announced ready for trial and was tried and convicted. The evidence taken on the hearing of the motion to set aside the warrant was conflicting. The minutes of the clerk showed that the defendants had been arraigned on the 5th of April, 1921, and had pleaded not guilty, and the clerk also testified that he knew that the defendant pleaded not guilty* on that date. Witnesses for the defendant testified that the defendant waived time in which to plead on the 5th day of April, 1921, but that no plea was entered on that date. The order of the trial court in overruling the motion to quash the warrants was equivalent to a finding by the trial court that the defendant' had on the 5th day of April, 1921, pleaded not guilty of the offense charged in the information. Independent of the testimony taken, this was a matter of which the court had judicial knowledge. The general rule is that where the defendant pleads to the merits he waives all objection as to the illegality of his arrest. State v. Blackman, 32 Kan. 615, 5 Pac. 173; State v. Bjorkland, 34 Kan. 377, 8 Pac. 391; State v. Tuchman, 47 Kan. 726, 28 Pac. 1004; Clifford v. Overseers of the Poor, 37 N. J. Law, 152; Logan v. Lawshe, 62 N. J. Law, 567, 41 Atl. 751; Jones v. Foster, 43 App. Div. 33, 59 N. Y. Supp. 738; People v. Allen, 51 Mich. 176, 16 N. W. 370; People v. Kenyon, 93 Mich. 19, 52 N. W. 1033.

It is also contended that the court erred in permitting the state to admit evidence that was incompetent, irrelevant, and immaterial. The record shows that no objection was made to the evidence here complained of, and furthermore that a large portion of the evidence was elicited by counsel for the defendant in the cross-examination of a state’s witness.

Finding no error in the record before' us sufficient to authorize a reversal of the judgment, the judgment is therefore affirmed.


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    JACK MANN v. STATE.
    No. A-4055.
    Opinion Filed Aug. 15, 1923.
    (217 Pac. 231.)
    (Syllabus.)
    Homicide — Conviction of Manslaughter in First Degree Sustained — 20 Years' Imprisonment not Excessive. Record examined, and held, that there is no evidence of excusable homicide, and, held, further, that the evidence is sufficient to sustain a conviction of manslaughter ill the first degree committed by the defendant while engaged in the commission of a misdemeanor, and held, further, that the defendant was accorded a fair and impartial trial, and that the punishment of 20 years’ imprisonment is not excessive under the facts in the case.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Jack Mann was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    E. M. Carter, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the Statte.
   MATSON, P. J.

This is an appeal from the superior court of Okmulgee county, wherein on the 24th day of February, 1921, the court rendered judgment against plaintiff in error, Jack Mann, in accordance with a verdict finding him guilty of manslaughter in the first degree and assessed his punishment at imprisonment in the state penitentiary for a period of 20 years.

The information charged defendant with the murder of Marietta Cox, alleged to have been committed in said county on the 9th day of December, 1920, by shooting with a pistol. From the state’s standpoint the killing occurred under substantially the following circumstances:

Both the plaintiff in error and. the deceased, Marietta Cox, were negroes. The plaintiff in error was a resident of Beggs, Okla., and the deceased a resident of Okmulgee, Okla. Plaintiff in error was a married man about 25 years of age, and deceased a single girl about 14 or 15 years of age. The killing occurred in a negro joint and dance hall in the city of Beggs about the hour of midnight, December 9, 1920. The deceased was a member of a negro show troupe that was playing in that town that night. It appears that after the rehearsal of the show the deceased and other negro girls who were members of the troupe repaired to this dance hall, which was known as the “Black Diamond,” for the purpose of refreshments and dance; that the plaintiff in error also, visited the dance hall on that night armed with a pistoh Plaintiff in error attempts to explain having the pistol by stating that he intended to sell it to another fellow that he was to meet at the dance hall that night; but it appears in evidence from plaintiff in error’s own witnesses that he had no intention of going to the dance hall until requested to accompany others there, and it also appears in evidence that some 30. minutes before this killing toqk place plaintiff in error had the pistol drawn from the scabbard and had to be cautioned to put it back by the proprietor of the premises. The killing took place in a room immediately back of the room used for dancing and drinking purposes. Only eight negroes were present at the time of the shooting, the deceased and two girl friends of hers, members of the show troupe, plaintiff in error, his sister-in-law, another girl friend of hers, and two other negro men.

According to the state’s witnesses one of the negro men had asked Henrietta Smith, a cousin of the deceased, to come over to him and talk to him or sit on his lap, and the Smith girl ignored his request, whereupon plaintiff in error, who was present, remarked, “I generally shoots women who don’t come when I calls ’em.” Whereupon.the deceased, who was standing close to the plaintiff in error, remarked, “Well, don’t shoot me!” and thereupon the plaintiff in error took his pistol from his clothes, and, with the remark that he would shoot her, pointed it towards the little girl, and the pistol was in some manner discharged, and the Cox girl stated ,that she was shot and in a minute or two fell to the floor. During the confusion that followed the defendant went to the front room and stated that he had shot the girl accidentally. The Cox girl was brought that night to the city of Okmulgee and an operation performed in an effort to save her life. The operation revealed, however, that she was shot through the intestines and would bleed to death in a short while. She died in the afternoon following from the effects of the gunshot wound.

Plaintiff in error contends that, because he made all arrangements incidental to taking the Cox girl to Okmulgee and paying the doctors for the operation, it is clear that he had no intention to kill her, and that the killing was purely accidental, and that the punishment, in view of all the evidence, is excessive, and should be modified. The trial court instructed on murder, and manslaughter in the first degree and second degree, and excusable homicide. The jury returned a verdict of guilty of manslaughter in the first degree, but failed to agree upon the punishment, and the court assessed the punishment at 20 years ’ imprisonment in the penitentiary.

Excusable homicide is defined! by section 1752, Compiled Statutes 1921, as follows:

“First. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent.
“Second. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, provided that no undue advantage is taken nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

It is apparent, from the statement of facts above given, that there was no excusable homicide in this case, and the court was very liberal to the defendant in instructing upon this issue.

Manslaughter in the first degree, as applicable to the facts in this ease, is defined as follows:

“Homicide is manslaughter in the first degree: * * *
“First, when perpetrated without a design to effect death by a person while engaged in the commission of a misdemean- or.” Section 1740, Compiled Statutes 1921.

Section 1999, Compiled Statutes 1921, provides:

“It shall be unlawful for any person to point any pistol or any other deadly weapon, whether loaded or not, at any person or persons, either in anger or otherwise.”

Section 2000, Id., provides the punishment for a violation of the preceding section at a fine of not less than $50 nor more than $500, and imprisonment in the county jail for not less than 3 nor more than 12 months.

Section 1733, Id., defines murder in part as follows:

“Homicide is murder: * * *
“First. When perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being.
“Second. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.”

To summarize, the court submitted the case to the jury under the provisions of the statutes above quoted, and while there is some evidence in the record that would have justified the jury in finding the defendant guilty of murder, it is not necessary to consider that phase of the evidence, because the conviction was for manslaughter in the first degree.

The evidence of the defendant and of his witnesses, as heretofore stated, does not make a case of excusable homicide. Under the most favorable view that could be taken of this evidence, the defendant was at least guilty of manslaughter in the second degree, and that issue was submitted to the jury and decided adversely to the defendant. There is ample evidence in the record to sustain his conviction of murder in the first degree,, committed by him while engaged in the perpetration of a misdemeanor, under section 1999, Compiled Statutes 1921. An examination of this record convinces this court that the defendant had a very fair trial. The court’s rulings on the admission of evidence were very favorable to him, and the instructions were likewise in his favor. We find no error in the record that would authorize a reversal of this judgment. In fact, counsel practically concede that no reversible error was committed during the trial, but insists that the judgment is clearly excessive.

We cannot accede to this view. While 20 years’ imprisonment appears to be á severe punishment, on the other hand, it must not be overlooked that in the twinkling of an eye a human life was snuffed out by the unlawful act of this plaintiff in error. Plaintiff in error was extremely fortunate that the jury did not convict him of murder. Under the allowances for good time by the statutes of this state, a 20-year sentence will be served in approximately 10 years, so that this plaintiff in error will, if he behaves himself, be yet a comparatively young man at the expiration of this term of imprisonment. In the meantime he will have an opportunity to ponder over the situation, and perhaps will come to the realization that the pointing of a pistol at another, while in anger or otherwise, is a serious offense, surrounded with dire consequences, and that “I didn’t know it was loaded” is no excuse, if a homicide results from such unlawful act.

The judgment is affirmed.

BESSEY, J., concurs.

DOYLE, J., absent, not participating.