text:
    STATE v. FRANK WELCH.
    No. A-2055.
    Opinion Filed Nov. 4, 1919.
    (184 Pac. 786.)
    1. OIL AND GAS — Lease-r-Nature of Grant. A lease, granting oil and gas mining privileges for a term of years, is only a grant of an incorporeal hereditament, and such a lease grants no corporeal interest or hereditament.

      2. CHAMPERTY AND MAINTENANCE — Offense—Adverse Holding Not Rendering Oil and Gas Lease for a Term Champertous. The execution of a lease, granting oil and gas mining privileges, for a term of years, on lands held adversely by a third person or persons, is not a violation of section 2260, Rev. Laws 1910, defining the offense of champerty.

      Appeal from County Court, Nowata County; Wm. F. Gillully, Judge.

      Information against Frank Welch for champerty, and from a judgment sustaining a demurrer thereto, the State appeals.
    Affirmed.

      J. E. Bennett, County Atty., and F. A. Calvert, Asst. County Atty., for the State.

      C. CaldweU, for defendant in error.
   DOYLE, P. J.

This is an appeal by the state from a judgment of the county court of Nowata county, sustaining a demurrer to an information filed in said court, of which the charging part is as follows:

“That said Frank Welch did, in the said county and state, on the said date, unlawfully and - maliciously sell, convey, and grant to C. Caldwell a pretended right or title to lands and tenements located and situated in No-wata county, state of Oklahoma, as follows: The northeast quarter of section 31, township 26 north, range 15 east, at a time and when neither the said Frank Welch, who made the said sale and grant, nor any other person by -whom the said Frank Welch claims or claimed, have been in possession of the said lands, or of the reversion and remainder thereof, or .have taken the rents and profits thereof for the space of one year prior to such grant, conveyance, or sale, and at such a time when G. W. Ellis, W. I. Ellis, J. A. Ellis, and Paul Lovell, either one or both, were in possession of the said lands, and had been in such possession continuously for the space of one year and prior thereto, ■before the said grant of the said pretended right or title by the said Frank Welch to said C. Caldwell, a copy of which grant is hereto attached, marked ‘Exhibit. A,’ and made a part of this information, contrary to,” etc.

The demurrer to the information was on the ground that “the facts stated do not constitute a public offense.”

It is the contention of counsel for the state that the execution of the oil and gas lease by the defendant is a violation of section 2260, Rev. Laws 1910.

The defendant in error contends that it is not.

The lease made a part of the information i n its terms is the form in common use. It recites that it was given in consideration of $1 paid to the lessor, and the covenant and agreements of the lessee therein set forth. It contains the usual words of grant and demise; runs to the lessee, Caldwell, his successors and assigns; describes the purpose for which it was given as that of mining and operating for oil' and gas, laying of pipe lines, building tanks, and structures thereon to produce and take care of said products when produced, and the term which it was to endure is five years from its-date, and as long thereafter as oil and gas or either of them is produced from the premises. The lessee covenants and agrees therein to deliver to the lessor, free of cost, in the pipe lines to which the wells may be connected, the equal one-eighth part of all oil produced and saved from the premises, and to pay $150 each year in advance or the gas from each well. There is also a surrender clause to the effect that upon the payment of $1, at any time, the lessee or his assigns shall have the right to surrender this lease for cancellation, after which all payments and 'liabilities thereafter to accrue under and by virtue of its terms shall cease and determine.

Section 2260, Eev. Laws 1910, is as follows:

“Any person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant has been in possession, or he and those by whom he claims have been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and profits thereof for the space of one year before such grant, conveyance, sale, promise or covenant made, is guilty of a misdemeanor.”

It is settled by the decisions of our 'Supreme Court that a lessee of an oil and gas and mining lease acquires no title to the land, nor oil or gas while in the ground, by reason of his lease. -

In the case of Kolachny v. Galbreath, 26 Okla. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451, it is held that:

“Oil and gas, while in the earth, unlike solid minerals, are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil that is in the ground, but of such a part as the grantee may find, and passes nothing that can be the subject of an ejectment or other real action.”

In the opinion it is said:

“The lease relied upon by plaintiff does not vest in him the title to the oil and gas in said land, and is not a grant of any estate therein, but is simply a grant of a right to prospect for oil and gas, no title vesting until such substances are reduced to possession by extracting same from the earth — an incorporeal hereditament. Payne et al. v. Neuval et al., 155 Cal. 46, 99 Pac. 476; Richlands Oil Co. v. Morriss, 108. Va. 288, 61 S. E. 762; Rawlings et al. v. Armel et al., 70 Kan. 778, 79 Pac. 683; Dickey v. Coffeyville Vitrified Brick Tile Co., 69 Kan. 106, 76 Pac. 398; Emery v. League et al., 31 Tex. Civ. App. 474, 72 S. W. 603; Detler et al. v. Holland, 57 Ohio St. 492, 49 N. E. 690, 40 L. R. A. 266; Wagner et al. v. Mallery et al., 169 N. Y. 501, 62 N. E. 584; Kelly v. Keys et al., 213 Pa. 295, 72 Atl. 911, 110 Am. St. Rep. 547; Toothman v. Courtney, 62 W. Va. 169, 58 S. E. 915; Carter v. County Court, 45 W. Va. 906, 32 S. E. 216, 43 L. R. A. 725; Thornton on Oil & Gas, secs. 51-55.”

In the case of Duff v. Keaton, 33 Okla. 92, 124 Pac. 291, 42 L. R. A. (N. S.) 472, it is held that:

“A lease granting oil and gas mining privileges for a term of years is a ‘chattel real.’ (a) A chattel real is ‘personality.’ ”

In the opinion it is said:

“We reach the conclusion that a lease for oil and gas for mining purposes is not a ‘conveyance of real estate’ within the purview of section 5314, supra,”

These decisions of our Supreme Court defining the nature of property in natural gas and oil contained in the earth, and the legal effect of instruments of the character here involved, and the holding that such a lease is only a grant of an incorporeal hereditament, and that such a lease grants no corporeal interest or hereditament, is decisive of the question here presented. In our opinion the legislative intent in enacting the statutes defining c¡ha¡mp-erty (sections 2259, 2260, and 2261, Rev. Laws) was to prohibit the transfer of the fee or an interest in the fee under the conditions therein stated.

It follows that the execution of an oil and gas lease under the facts as alleged in .the. information Is not a violation of section 2260, Rev. Laws. The demurrer to the information was therefore properly sustained. For the reasons stated, the judgment sustaining the demurrer is affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    BUNK ALLEN v. STATE.
    No. A-3110.
    Opinion Filed Nov. 8, 1919.
    (184 Pac. 793.)
    RAPE — Sufficiency of Evidence. In a prosecution for statutory rape, the evidence considered, and conviction affirmed.

      Appeal from District Court,, Carter County; W. F. Freeman, Judge.

    • Bunk Allen was convicted of statutory ra>pe, and he •• appeals.
    Affirmed.

      J. B. Champion and W. F. Bowman, for plaintiff in error.

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

Plaintiff in error, Bunk Allen, was charged in an information filed in the district court of Carter county with the crime of statutory rape, alleged to ' have been committed upon one Beulah Kesterson, a female ■ under 16 years of age. On February 7, 1917, a trial was had, which resulted in his conviction, fixing his punishment at imprisonment in the penitentiary for a term of five years. From the judgment rendered on the verdict he appeals.

The material testimony in the ..ease is in substance this: The prosecutrix testified that at the time charged her age was 14 years and four months; that she had lived near Wilson, Carter county, 11 years; that on the day in question she met the defendant in Wilson, and at his request went with him to a room over Brylmer’s store, and there had sexual intercourse with him; that Mr. Jones and Mr. Griffin entered the room while the defendant was having intercourse with her.

C. P. Jones testified that he was a constable of Pewitt township, and on the day charged saw the defendant in John Pruitt’s rooming house over Brymer’s store in a room on the west side; that he went there with the city marshal of Wilson; that he kicked the door open, and found the defendant in bed with this little girl.

The defendant testified that he was 33 years of age, married, was engaged as driver of a service car in the town of Wilson; that he went upstairs with a friend to take a drink of whisky, and while there the prosecutrix came into the room; that his friend left the room; that he and this girl went to bed, and about that time the officers came in; that he did not have sexual intercourse with her.

It is assigned as error that the court excluded competent proof offered on behalf of the defendant.

The record shows that the only evidence excluded was that offered tending to show what the prosecutrix prior to the time charged had sexual intercourse with other men. Had this fact been established beyond a reasonable doubt, it would have been no defense to the charge in this case. The evidence excluded was incompetent and inadmissible for any purpose. If the defendant had sexual intercourse with the prosecutrix when she was under 16 years of age, the offense was complete.

As to the sufficiency of the evidence to' support the verdict, it is only necessary to say that it is impossible to see how the jury could have arrived at any other conclusion.

Discovering no prejudicial error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    CARL CREEK v. STATE.
    No. A-3174.
    Opinion Filed Nov. 8, 1919.
    (184 Pac. 917.)
    1. WITNESSES — Cross-Examination of Defendant. It is the established rule in this jurisdiction that a defendant, offering himself as a witness, subjects himself, as regards cross-examination, to all the rules governing other witnesses,

      2. WITNESSES — Scope of Cross-Examination. The cross-examination of a witness is not to be confined to the particular questions ashed, nor the precise subjects called to his attention, on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of the examination in chief, which tends to limit, explain, or modify the same.
    3. SAME — Cross-Examination of Defendant. For matters held to be within the legitimate scope of the cross-examination of the defendant, under the issues in this case, see body of opinion.
    4 APPEAL AND ERROR — Review—Requested Instructions — Repetition. It is not error for the trial court to refuse to give a requested instruction if the principles of law therein contained are covered in the general instructions.

      Appeal from District Court, OJcmulgee County; R. P. deGraffenreid, Assigned-Judge.

    Carl Creek was convicted of manslaughter in the first degree, his punishment fixed at 15 years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    E'arl Kelly was shot and killed by Carl Creek at the latter’s apartment in the town of Morris, Okmulgee county, Okla.,*on the 25th day of March, 1916, at about 4 o’clock in the afternoon. The killing was accomplished by means of a 32-caliber automatic pistol, the defendant firing about five shots at the deceased, inflicting mortal wounds on the left side of the body, one of which penetrated the abdomen and caused death about three hours after the shooting.
    Both defendant and deceased were workers in the oil fields, and had known each other for some time prior to the commission of the homicide.
    According to the state’s witnesses, in the early afternoon of the 25th of March, 1916, the deceased called defendant by telephone, and advised defendant not to come up town, that the officers would arrest him; also telling the; defendant that he would take something down to the defendant’s apartment. Thereafter deceased went to defendant’s apartment, and was invited in by either Creek or his wife. A short time after the deceased went into the house of defendant, some one was heard to say, according to the testimony of persons who were living in other apartments of the same building, “Now, by God, I’ve got you,” to which the reply was made, “Carl, don’t dp1 that; don’t do that.” Almost immediately thereafter several shots were fired, and Kelly was seen to fall out the front door of Creek’s apartment, mortally wounded.
    Before his death, Kelly made a number of dying statements, to the effect that Creek had killed him, 'had called him down to his house, and shot him down like a dog.
    There is also evidence on the part of the state’s witnesses to the effect that the defendant was drunk at the time of his arrest shortly after the shooting; that he resisted arrest by one officer, and was finally arrested by three other officers and- taken to the jail at Okmulgee, Okla. The deceased was unarmed at the time of the shooting, but there is some evidence in the record to the effect that deceased had been drinking some before the shooting, and carried a flask of whisky with him to the home of the defendant.
    The defendant interposed the plea of self-defense, and also that the deceased had 'been intimate with defendant’s wife, which fact had become known to the defendant, having caused previous trouble between him and the deceased, in which the defendant states that the deceased shot at him about the month of December, 1914.
    Defendant testified that the deceased came to his house on the afternoon of the killing with a half-pint flask of whisky; that deceased was under the influence of whisky when he arrived, and invited the defendant to drink with him; that the. defendant, who was not. well at the time, took a sip out of the flask, but that the whisky burned so much that he told deceased he could not drink it. Thereupon defendant’s wife ¡offered to make them each a toddy out of the whisky, which was done, and that both drank their toddies. Thereafter deceased followed defendant’s wife into a back room, and was seen by the' defendant to punch or strike his wife on the hip ■ or leg, and also deceased was heard to¡ remark at the time, “Why haven’t you got that big son of a bitch out of here?” Defendant testifies that his wife then returned to the room in which he was resting and asked him to put the deceased out of the house because deceased was intoxicated. Defendant then says that he asked deceased to leave, and that thereupon deceased remarked, “Put me out, you big son of a bitch,” at the same time making a motion towards his hip pocket, whereupon the defendant reached under a pillow on his bed, pulled out his pistol, and fired five times m rapid succession at the deceased, four of which shots took effect, resulting in the death of deceased as heretofore detailed.

      On direct examination, defendant, when asked why he shot deceased, stated, “Because I thought he had a gun and would kill me; that he had tried it, 'and thought that he had at one time.” On redirect and recross-examination, the following questions were asked and answers made by the defendant:
    “By Mr. Eaton: Q. Mr. Creek, at the time you fired at or shot Kelly, what was the condition of your mind as to being worried or not
    “Mr. Carter: ,We object to that as incompetent, irrelevant, and immaterial. ■ •
    “Q. Over your wife’s relation?
    “The Court: Why?
    “Mr. Carter: Because he has been over that two or three times. , .
    “The Court: I think he may answer that. 51
    “A. Angry.
    “Q. Well, in regard to your family troubles? A. Well, sir, when he insulted that woman everything came in front of me just like I had seen- it for the past -four or five months; the thought that was through my head was that it was either kill him or get killed; that is what I thought, when I shot him.
    “By Mr. Eaton: That is all.”
    Recross-examination:
    “By Mr. Carter: Q. Do you know now, Mr. Creek, or can you tell the jury now, whether you shot him because you thought he was going to shoot you, or did you kill him jüst because you were mad? A. I shot him because I thought he was going to kill me.
    “Q. It wasn’t over your family troubles at all, then? A. It was over both.”

      The foregoing excerpts from the defendant’s testimony support the theory that he shot and killed the deceased in self-defense, and that, although there had been previous trouble between defendant and deceased because of the belief of the defendant that deceased was intimate with defendant’s wife, and such matters flashed as a pic.ture in the mind of the defendant at the time of the kill.-ing, the cause that .impelled the defendant to fire the shot, according to his own testimony, is the belief that he thought deceased was going to kill him at the time. So that, under the evidence in this ease, the issue is clearly defined, the ..evidence on the part of the state supporting the theory that the homicide was murder, while that of the defendant, although admitting anger on his part, would •tend to justify the killing; at least sufficient provocation is shown by defendant’s testimony to reduce the degree of homicide to.manslaughter in the first degree.
    The jury returned a verdict of manslaughter in the first degree, and assessed the punishment at 15 years’ imprisonment in the state penitentiary. The court pro.nounced judgment in accordance with the verdict, from i.which judgment the defendant has appealed to this court, assigning several grounds of error, which will be discussed in the opinion proper.

      Joe S. Eaton and John Caruthers, for plaintiff in error.

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

(after stating the facts as above.) The first alleged error relied upon for a reversal relates to the admission of incompetent, irrelevant, and immaterial testimony elicited on the cross-examination of the defendant, . over the objection and exception of counsel for the defendant. The defendant was cross-examined at some length in regard to escaping on two different occasions from the county jail after he had been arrested and charged with this offense. ' It is contended that to permit such a cross-examination was prejudicial to the substantial rights of-the defendant, and improper because the question of the defendant’s breaking and escaping from jail was not gone into in his testimony in chief, and for the further reason that the court in effect required the defendant to furnish evidence against himself by permitting the cross-examination to go beyond its legitimate scope.

•On the other hand, the Attorney General contends that the cross-examination was proper under the issues in this case, first, because the general subject-matter was gone into by counsel for the defendant in the cross-examination of the state’s witnesses in an attempt to prove that the defendant, immediately after he shot and killed Kelly, called the sheriff of Okmulgee county over the long-distance .telephone, and requested the sheriff to come and arrest him, and also the defendant, on direct examination, testified that he did not attempt to resist arrest as testified to by Constable Heath, but did not submit to arrest by Heath for the reason that Heath had no warrant for his arrest, and for the further reason that the defendant had called the sheriff and had notified the sheriff that he was ready and willing to surrender; that the defendant, claiming to have been so zealous in his efforts to surrender and place himself in the hands of thé law immediately after the commission of the alleged offense, cannot complain of a cross-examination which in effect had bearing1 on the question of his good-faith surrender by disclosing a disposition on the part of the defendant to escape’jail and flee on two different occasions after he was taken into custody.

•Secondly, it is contended that this cross-examination would not constitute reversible error in this case, because it could not have amounted to an abuse of discretion on the part of the trial court in the admission of evidence.

As part of its case in chief, the state was permitted to introduce, testimony, without objection by defendant’s counsel, to show that the defendant resisted arrest. In explanation of this testimony, the defendant was permitted to testify to the effect that he had no intention to resist arrest, but that nobody other than a constable without a warrant of arrest attempted to arrest him, and in further explanation of his conduct, he was also permitted to testify that he had voluntarily called the sheriff of the county over the long-distance telephone immediately after the shooting, and told him of his willingness to surrender and submit to arrest for this particular crime.

A sharp conflict thereupon arose between the testimony of the witnesses for the state and the testimony of the defendant himself. According to the state’s witnesses, the defendant made armed resistance to arrest. This fact was strenuously denied by the defendant, who stated that he was at all times willing to submit to arrest, going so far as to telephone the sheriff to that effect. To rebut the presumption that the defendant was willing to submit to arrest, as testified to by him in chief, and in support of the testimony of the state’s witnesses to the effect that the defendant had resisted arrest, the court permitted the county attorney, in his cross-examination of the defendant, to ask the defendant about his escaping from jail on two different occasions and while awaiting trial. We think this cross-examination was proper under the issues in this case.

A defendant offering himself as a witness subjects himself, as regards cross-examination, to all the rules governing other witnesses. Harrold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; State v. Lewis, 56 Kan. 374, 43 Pac. 265; State v. King, 67 Wash. 651, 122 Pac. 323. The foregoing is the established rule in this jurisdiction.

In Gibbons v. Territory, 5 Okla. Cr. 212, 115. Pac. 130, this court held:

“The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of such examination, and tending to limit, explain, or modify the same.”

When the defendant takes the witness stand in his own behalf, he is to be considered a witness for all purposes, and is subject to a proper cross-examination upon all matters material to the issues joined. If, on direct examination, he opens a certain subject for investigation, he cannot be heard to complain if on cross-examination questions are asked him, the answers to which would tend to limit, explain, or modify the testimony he has given in chief.

We do not undertake to say that if the trial court would permit the cross-examination of the defendant to go beyond its legitimate scope, extending beyond the subject-matter concerning which he was examined in chief, by such conduct the trial court would not commit reversible error, but such is not the condition confronting us in this case. The examination here was confined to the issues presented, had a bearing on the question of the defendant’s guilt or innocence, and was within the scope of the subject-matters inquired into in the examination in chief. In Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, this court held:

“On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.”

Applying the foregoing rules to the question here presented, we are of opinion that the trial court did not commit error in permitting the defendant to be asked on cross-examination questions regarding his escape from jail and flight after he was arrested and while awaiting trial, for the reasons above stated.

It is also contended that the trial court erred in permitting the defendant to be cross-examined concerning his domestic relations, and relative to a certain letter written by him to his wife while incarcerated in jail; that the only purpose of this examination was to create an atmosphere of “veiled suspicions” that the wife of the defendant was a fallen woman before he married her, and that this fact was known to the defendant; also that the defendant was compelled in said cross-examination to admit that he had written a letter to his wife without asking her to become a witness in his behalf, although requesting her to produce the defendant’s 13-year-old stepdaughter to testify for him.

The general subject of the defendant’s domestic relations was testified to by him in chief, the defendant stating that he had reason to believe that his wife and the deceased were guilty of improper relations with each other, and that this illicit relationship had been carried on for some months prior to the killing. Also the defendant testified of his own volition that after his incarceration in jail his wife left the country with another man, so that no person can read the record in this case without getting the impression that the wife of the defendant was a woman of lewd habits, and that her relationship, especially with the. deceased, was known to the defendant for a considerable length of time prior to the commission of the homicide.

The fact, therefore, that the defendant wrote a letter requesting his wife to produce her 13-year-old daughter as a witness in his behalf, without requesting that she become a witness in his behalf herself, could not have worked any prejudice to his cause under the theory upon which his defense was based. He could hardly have been expected to ask the woman who was sustaining illicit relations with the deceased to be a witness for him, especially after it had become known to him that since the commission of the homicide she had fled from their former home with another man. Her conduct was such as to lead.the defendant to believe, as he had a right to do, that her testimony would at least not be favorable to his cause.

In view of the fact that the defendant voluntarily testified as to these illicit relationships between his wife and other men, he certainly cannot now complain that he was prejudiced by a cross-examination which tended to show only that he was unwilling to use such a woman as a witness in his own behalf. We find no error or abuse of discretion upon the part of the trial court in permitting the defendant to be cross-examined on this subject.

It is also contended that the court erred in refusing to give the defendant’s requested instruction No. 1, which is as follows:

“Gentlemen of the jury, you are instructed that the defendant had the right to act upon the appearances of danger as they were indicated to him at the time of the killing. He was not bound to wait until the deceased was in the very act of doing him some great bodily harm, but he had the right to act upon any hostile demonstration, upon the part of the deceased, which indicated to the defendant that the deceased was then about to draw a weapon from his pocket with a purpose, as the defendant thought, to shoot him or do him some great'bodily harm.

“What is or is not an overt action — that is, what act upon the part of Kelly, the deceased, would justify the defendant in taking his life — is a question for your determination in the light of all the facts and circumstances which are disclosed by the evidence submitted by 'both sides. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, upon the ground of reasonable apprehension of danger. Under other circumstances this might not be true, and it is for you, viewing the facts and circumstances in evidence from, the defendant’s standpoint, to determine how this may be.”

Upon the general subject of the requested instruction, the trial court gave the following instructions:

“You are further instructed that the defendant in this case admits the killing of the deceased, but contends that the killing was justifiable on the ground of self-defense, and that, viewed from his standpoint, it became and was necessary, in order to save his own life, or to protect himself from great bodily harm at the hands of the deceased, to take the life of the deceased; and in this connection you are instructed that in order to justify a homicide on the ground of self-defense it is not necessary that the party killing should have been in actual danger of losing his life, or of receiving serious bodily injury at the hands of the person killed at the time of the homicide, but it is sufficient to justify the killing if the acts or words, coupled with the acts of the party killed, viewed from the defendant’s standpoint, were such as to reasonably cause the party killing to apprehend that he was in apparent danger of losing his life, or of having serious bodily injury inflicted upon him by the party killed; he would be justifiable in killing his antagonist, and it is immaterial whether the danger was real or not, it being sufficient in law to justify .the homicide if it only be apparent.

“You are therefore instructed that if you believe from the evidence in this case that while the defendant was in his room the deceased came into said room, and that the defendant tried to get him to leave the room and to leave his house, and while thus trying to pei’suade the deceased to leave that the deceased threw his hand behind him to his hip pocket as though he intended to draw a revolver, and the defendant in good faith believed that he was ' bnut to draw a pistol, and .that he in good faith believed that the deceased was about to do him great bodily harm, or take his life, and, acting under the circumstances, he shot and killed the deceased, it will be justifiable homicide, and it would be immaterial whether the deceased was armed or not, but if it appeared to the defendant that he was armed, and that he was about to draw his pistol and do him great bodily harm or take his life, the killing, as aforesaid, would be justifiable on the ground of self-defense, and if you so believe from the evidence, it will be your duty to return a verdict of not guilty; and in this connection you are instructed that, after a full and fair consideration of the whole case, if you entertain a reasonable doubt as to whether the killing was justifiable as defined to you in these instructions, you will give the benefit of such doubt to the defendant and acquit him.

. “You are instructed what is meant by the term ‘reasonable expectation or fear of death, imminent and pressing,’ as used in these instructions, is that it is not necessary that the defendant be in any real danger, but apparent danger is enough to excuse him in acting in self-defense; that is, a danger which to his mind was real and imminent, and that the defendant at the time he fired the shot that took the life of the deceased was about to suffer or receive great bodily injury at the hands of the deceased.”

It has been repeatedly held by this court not to be error for the trial court to refuse to give a requested instruction if the principles therein contained are. covered in the general instructions. Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029; Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Conley v. State, 15 Okla. Cr. 531, 179 Pac. 480.

The instructions as a whole fully cover the law of the casé, and are as favorable to the defendant as the evidence would warrant. A careful reading of the instructions impresses this court that the trial court covered every theory of the defense in a manner fair to the defendant, and as favorable as the evidence justified. We think that the trial court did not err in refusing to give the requested instruction, because the substance of the law therein contained was fully covered by the instructions given.

This killing was the result of too much bad whisky. The defendant admits that he was angry at the time this shooting took place. He had the benefit of very able counsel, who were zealous in their endeavor to protect his rights at every step throughout the trial. That a conviction of manslaughter only resulted is attributable rather to the able manner in which he was defended than to his own testimony and conduct at the. time of the killing and subsequent thereto.

The defendant was unfortunate in having selected as his mate a woman of loose character, untrue to her marriage vows. In this respect he is to be pitied; but, as held in January v. State, 16 Okla. Cr. 166, 181 Pac. 514, “¡the so-called unwritten law — ‘the right to avenge wrongs done a female member of a defendant’s family .by killing the wrongdoer’ — does not exist in this state.”

For the reasons stated, the judgment is affirmed.

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


text:
    ARNOLD BROWN v. STATE.
    No. A-3420.
    Opinion Filed Nov. 8, 1919.
    (184 Pac. 912.)
    APPEAL AND ERROR — Dismissal—Acceptance oí Parole. When an appeal from a judgment of conviction is pending in ibis court, and the plaintiff in error is granted a parole and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed, as having been abandoned.

      Appeal from District Court, Payne County; John P. Hickam, Judge.

    Arnold Brown was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed, and cause remanded.

      E. G. Wilson, J, M. Springer, and Moman Pruiett, for plaintiff in error.

      The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Arnold Brown, and Frank Ison were by indictment jointly charged with the murder of P. T. Connor, alleged to have been committed in Payne county on the 26th day of September, 1916. Upon his separate trial the plaintiff in error was convicted of manslaughter in the first degree, and on-appeal the judgment was reversed and remanded for a new trial. Arnold Brown v. State, 14 Okla. Cr. 115, 167 Pac. 762.

On a retrial the plaintiff in error was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for a period of 11 years. From the judgment rendered on the verdict an appeal was perfected, by filing'in this court on August 3, 1918, 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. In Cowley v. State, 11 Okla. Cr. 561, 149 Pac. 924, it is said:

“When an appeal from a- judgment of conviction is pending in this court, and the plaintiff * * * applies for a parole, and the same is granted and accepted 'by the plaintiff in error, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed, as having been abandoned.”

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

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    J. E. ERNST v. STATE.
    No. A-2852.
    Opinion Filed April 1, 1919.
    Rehearing Denied Nov. 17, 1919.
    (184 Pac. 793.)
    1. PARTIES TO OFFENSES — Banks and Banking — Illegal Loan by Officers — Statute—Accomplice—Intermediary. B., at a rime when he was cashier and managing officer of a bank existing under the laws of this state, entered into an agreement with H. for H. to borrow money from such bank for the joint use of E. and H. H. executed to such bank his note for the money borrowed, and E. executed to H. his note for one-half of the money so borrowed in H.'s name, and the money so borrowed was used for the joint benefit of E. and H. Held: (1) That section 270, . Revised Daws 1910, prohibits only an active managing officer, or other officer of a state bank, from borrowing or loaning to an officer of such bank the funds of such bank, and does not apply to an intermediary used by an officer of such bank in obtaining such illegal loan from such bank. (2) That an intermediary used by an officer of a state bank in securing a loan prohibited by said section 270, Revised Laws, is not guilty of a criminal offense, and is not in law an accomplice of the officer illegally borrowing money in violation of said section. (3) That an officer of a bank, who through the agency and in the name of an intermediary is beneficially interested in money borrowed from a state bank in the name of such intermediary, is guilty of the offense denounced by said section 270.
    3. EVIDENCE — Reasonable Doubt — Previous Good' Character— Punishment. Evidence of previous good character may generate a doubt of guilt, where without such evidence no such doubt would exist, and may also, upon conviction, tend to lessen the punishment awarded; but, where there is legal evidence taken together with such good character showing the guilt of a defendant beyond a reasonable doubt, such previous good character cannot legally work out an acquittal.
    .3. BANKS AND BANKING — Larceny—Sufficientsy of Evidence. The record in this case carefully examined, and found free from error, and that the evidence fully sustains the verdict and judgment rendered.

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

    J. E. Ernst was convicted of larceny under section 270, Revised Laws 1910, and he appeals.
    Affirmed.

      E. E. Gore and Everett, Petry, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan and J. I. Hmvard, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, J.-.E. E'mst, hereinafter designated defendant, was informed against for the offense of larceny by having, while cashier and managing officer of the Citizens’ Bank of Headrick, existing under the laws of this state, illegally and indirectly borrowed money from said bank, and was convicted and sentenced to imprisonment in the state penitentiary at Granite, for a period of one year and one month. To reverse the judgment rendered, he prosecutes this appeal.

The information in this case is exceedingly lengthy, and, from the view we entertain of it, we deem it unnecessary to set it out in extenso. The defendant demurred to the information, which demurrer, the court overruled, and the defendant excepted.

The .uncontradicted evidence is that at the time of the alleged offense the defendant was the cashier and managing officer of the Citizens’ Bank of Headrick and in entire charge of the loans of said bank, a banking corporation organized under the laws of this state, and that the defendant, acting in conjunction with J. R. Ham, indirectly borrowed money from said state bank; the borrowing and procedure by which said money was borrowed was only directly shown by the evidence of said Ham; that the said loan was made by agreement with the defendant, negotiated in .the name of Ham, with the agreement that the-sum so borrowed was to be used jointly, by Ham.and the defendant, the defendant executing to Ham his note for one-half of the sum so borrowed from said bank. The notes given said bank by Ham for said loan were introduced in evidence, and had noted thereon- in the handwriting of the defendant, “Half of joint money used by Ham and Ernst for Altus property, owed to Citizens’ Bank,” and on a note given by the defendant to Ham there was noted, “Half of $250 note of J. R. Ham to Citizens’ Bank of even date.”

' There was also introduced in evidence letters in the handwriting of the .defendant to said Ham, then in New Mexico, referring to the notes described in the information in this case, and stating in said letters that the defendant and Ham owed the bank considerable interest.

Entries on the books of said bank shown to be in the handwriting of the defendant were also introduced in evidence, showing a record of said notes described in the information in this case executed to said bank by said Ham.

Upon the conclusion of the evidence of the state, the defendant demurred thereto, which demurrer the court overruled, and the defendant excepted.

The defendant did not testify in his own behalf nor offer any defense whatever to the offense with which he was charged, except evidence as to his previous good character as a man of honesty and integrity, v/hich previous good character was not controverted by the state.

Forty-three errors are assigned by defendant and are argued in defendant’s brief in groups. Such numerous errors and elaborate brief of defendant and his grouping of such errors in the argument thereof, together with the fact that the ease-made contains the record of two previous mistrials of defendant in this case, present a record for our consideration out of the ordinary and it has not only challenged our strict attention, but has received our most careful consideration.

We are, however, of the opinion that, notwithstanding the numerous errors assigned, only the following cardinal questions are presented 'by the record in this case which require our review to reach a proper disposition of this appeal: (1) Is the information sufficient in this case to charge the offense of which defendant was convicted? (2) Is the person used by - a managing officer of a bank existing under the laws of this state as an intermediary in securing a loan from such bank, under section 270, Revised Laws 1910, an accomplice of the said officer of such bank in such crime? (3) Was the witness -Halm an accom•plice of the defendant in this case, so that it was necessary to a legal conviction that his evidence be corroborated?

While the information in this case may be said not to be a model of correct drafting, that it contains repetitions, and in the hands of a skilled draftsman could be improved, we are still of the opinion that it sufficiently charges the offense of which defendant was convicted. It does not charge two different offenses, and it sufficiently informs the defendant of the offense he was called upon to meet, so as to enable him to prepare his defense, and therefore the court did not err in overruling a demurrer thereto.

Every instruction given the jury by the court was excepted to by defendant, and, after a most thorough review of said instructions, we are forced to the conclusion that the law is properly stated by the said instructions, and that said instructions are free from error. The defendant requested several instructions which the court refused to give, and the defendant duly excepted to such refusal. These requested instructions were either covered by the general instructions, or are based upon the proposition that Ham was an accomplice of defendant, and that defendant could not be legally convicted upon his uncorroborated evidence.

This prosecution is for a violation of section 270, Revised Laws 1910, which reads as follows:

“It shall be unlawful for any active managing officer of any bank organized or existing under the laws of this state to borrow, directly or indirectly, money from the bank with which he is connected; a,nd the officer * * * authorizing a loan to any such person, as well as the person receiving the same, shall be deemed guilty of a larceny of the amount borrowed.”

Defendant most earnestly insists that Ham was an accomplice of the defendant, and, unless his evidence was corroborated, the jury should have been instructed to, and should have, acquitted the defendant, and with this contention we are not in aqpord.

The law under which the defendant was convicted applies only to managing officers and those connected with the bank 'by whom the loan is made or received, and does not apply to an intermediary used in obtaining the loan, who is not in any wise connected with the bank making the loan, and therefore Ham was not an accomplice of the defendant, and it was not required that his evidence be corroborated to sustain the conviction in this case, and the court did not err in refusing to instruct the jury upon the law of accomplices.

The entire evidence in this case is uncontradicted and points unerringly to the guilt of the defendant as charged, and the trial court -would have erred had he sustained the demurrer of the defendant to the evidence, or granted defendant’s prayer for a directed verdict of acquittal. It is true that the law offers a premium for previous good char-. acter in the way of generating a doubt of the guilt of one accused, where without such previous good character such doubt would not exist, and, where conviction follows, tends to lessen the penalty imposed; but where the guilt of the defendant is clearly shown by undenied facts and no defense, other than technical objections, is made by the defendant, as in this case, such previous good character cannot be used as a shield and work out an acquittal of the guilty defendant.

The defendant had a fair and impartial trial, was ably defended in the trial court and represented with great zeal in this court, and the jury doubtless gave him the benefit of previous good character in fixing his punishment at imprisonment for one year and one month.

The motion for a new trial and the motion for arrest of judgment were each without .qpierit and properly overruled.

. Finding no prejudicial errors in the record, the judgment of the trial court is affirmed.

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


text:
    HENRY WELCH v. STATE.
    No. A-3170.
    Opinion Filed Nov. 18, 1919.
    (185 Pac. 119.)
    1. APPEAL AND ERROR — Briefs—Abandonment of Errors Assigned. Errors assigned in a petition in error which are not argued in the briefs will be treated as abandoned and not be considered by this court.
    2. APPEAL AND ERROR — Harmless Error — Evidence. The exclusion of offered evidence) tending to show a want of credibility on the part of a witness for the state, who testified to- a statement made by a defendant, isnot reversible error, where such defendant as a witness admit^that he made such statements.
    3. WITNESSES — Impeaching Evidence — Inadmissibility for Irreler vancy. The rejection of offered evidence as to why a witness was up at a late hour of the night,' and that just prior to a homicide he was engaged in gambling in a place where whisky was sold, said place being some distance from the scene of the homicide. and said offered evidence being in no wise connected with the crime for which the defendant was on trial, is not 'error. •
    4. WITNESSES — Credibility—Proof of Specific Acts. Tbe credibility of a witness cannot be successfully attacked by proof of specific acts done by such witness. ' '
    5. TRIAL — Instructions—Repetition. It is not error to refuse a requested instruction which correctly states the law, if the general instructions given sufficiently cover the principle of law stated in the requested instruction.
    6. APPEAL AND ERROR — Harmless Error — Instructions, An instruction embodying an abstract proposition of law should not .be given, but the giving of same does not constitute reversible error, unless a miscarriage of justice or a denial of a defendant’s constitutional or statutory rights has resulted therefrom.

      Appeal from District Court, Muskogee County; R. P. deGraffenried, Judge.

    Henry Welch was convicted of murder, and he appeals.
    Affirmed.
    . M. G. Bailey and W. J. Crump, for plaintiff in error.

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

The plaintiff in error, Henry Welch, hereinafter called defendant, James Meiggs, and Louis Benge, were informed against jointly for the murder of T. W. Smoot. The defendant was tried separately, convicted, and sentenced to imprisonment in the penitentiary at McA Jester during his natural life. To reverse the judgment rendered, he prosecutes this appeal.

' The ■ defendant, as a witness in the case, admitted that in territorial days he had been convicted of, and •served a sentence in the penitentiary for, robbery; that he fired the shot in the colored waiting room which killed the deceased; that he was marshal of Ft. Gibson, but that during the trouble in said waiting room he did not in any way attempt to exercise his authority as such marshal; and that after he shot the deceased he did not stop to see the effect of such shot, but ran out of said waiting room in pursuit of a man who was running from the said depot, who was afterwards ascertained to be Hymer; that very shortly after the said shooting, and in response to an inquiry, he made false and contradictory statements as to his knowledge of who shot the deceased; that he was sober at the time of the homicide; and that his codefendants were under the influence of intoxicating liquor.

Hyaner testified that on the 4th day of March, 1917, he was railroad agent and telegraph operator employed at the depot of the Iron Mountain Railroad at Ft. Gibson, his hours of work being from 4:30 in the evening until 1 the next morning; that he remembered the killing of T. W. Smoot that night; that he and his wife, after closing the office door, which was self-locking, were leaving the depot at about 12:45, and in order to do so had gone into the colored waiting room of the said depot, into which came the defendant and his two codefendants, one of whom stood at the entrance of said room; that at that time he did not know them, but has since ascertained that they were the defendant, Jim Meiggs, and Louis Benge; that Jim Meiggs approached and searched him and said, “If you have got a gun on you, or whatever you have got on you, give it to me”; that the witness replied: “Gentlemen, I have not got a cent of money, let me go”; that when searched he had upon his person a gold watch and a card case, which watch was not taken and which card case was. not gone through; that while he was being searched the defendant stood close to Meiggs, and Benge walked over to the witness’ wife and said something to her which the. witness did not understand; that the witness and wife were permitted to leave the depot and went to the McBride Building to Mr. Smoot’s room, leaving the said three men standing in the waiting room, and that they followed them; that witness and wife kept ahead of them; that, on reaching Mr. Smoot’s room, they found him preparing to go to the depot; that they informed him of what had occurred at the depot; that Mr. Smoot completed his toilet, armed himself with a shotgun, and went with the witness and his wife to the said depot; that Mr. Smoot entered the colored waiting room first, that witness followed, and that his wife ^followed him; that Mr. Smoot at the time held the gun under his arm; that Jim Meiggs, the man who had searched the witness, came into the waiting-room; that the defendant was looking from the outside into the room through the window; that Mr. Smoot said to Meiggs, “Are you the fellow that is causing this disturbance,” or “this trouble?” and Meiggs made a reply which- witness did not hear; that Meiggs and Smoot went immediately to fighting; that Smoot laid down his gun on the .floor or .let it fall and that, witness • started to- assist Mr. .Smoot;- that the defendant came into the room hurriedly and joined in-the fight against Smoot; that witness tried to find something to fight with and could not, and went out to a pile of cinders and picked up two or' three finders, and returned to the room where the men were still fighting Smoot, and threw two or three cinders at Meiggs and Welch; that at this time Benge came from the door, and witness threw a cinder at him and struck him and thought he knocked him down; that he returned for more -cinders, and as he stepped out of the door heard a shot fired in the waiting room; that he got another cinder and returned to the waiting room, and saw the defendant standing there over Smoot’s dead body; that he threw at him and struck him in the face and returned to get more cinders, and looked around, and that defendant was holding his gun on him, and that witness began to run; that Meiggs hollored, “Shoot him, shoot him,” and was using profane language towards him; that the defendant followed him, and that he finally heard defendant say that he was the marshal, and witness said, “If you are the marshal, I wall stop,” and defendant advanced up to him, having his gun in his hand, and repeated that he was the marshal, and that witness replied, “You have not acted like a marshal,” and said to him, “Let’s go and hunt my wife”; that the defendant went with the witness, and that witness said to him he wondered what happened to Mr, Smoot,, that he believed he was hurt, and suggested that they go.back and see where Mr. Smoot was; that the defendant said, “You want your wife, and we will go find her”; that they went back to the McBride Building and got his wife,-: and again returned to-, the depot, where a crowd; of men had then gathered; that: they went, into' the colored, waiting room- and there found Mr. Smoot’s dead body and removed it.

The witness further- testified that when, the fight started his wife .was in the colored waiting room near the door and that after the removal of Smoot’s body he saw Smoot’s, gun lying on the table in the ticket office; that after the homicide he heard the defendant tell Mrs. Smoot, while standing in front of the McBride Building on the night of the homicide, that a man had been knocked down, but nobody hurt except that. Witness further testified that there was no light in the colored waiting room at the time of the difficulty, but that there was some light reflected through' the stained glass door of the office and from an arc light in the street about 100 feet from the east side of the waiting room, and that the light was sufficient during the difficulty to identify the people in there, and that he did at the time identify the defendant and his codefendant. '

Mrs. Hymer testified that, on the night of the homicide, she was at the depot with her husband; that about 12:45 they stepped out of the office door, closed it, and went into the colored waiting room, leaving the money and the key to the money drawer in the office; that three men came into the said room, and that while one of them, Mr. Welch, searched her husband, another of them, Louis Benge, came over to her and told her to hold up her hands and keep still, that they were not going to hurt him; that the defendant was standing right close to Meiggs when Meiggs was searching her husband; that they were then permitted to leave and proceeded to Mr. Smoot’s room. This witness further testified as to what occurred thereafter up to the firing of the shot that killed Smoot, substantially the same as testified by her husband, and that Smoot did not fight with his gun, but put it down or dropped it when the fight began.

Leonard Logan testified that he remembered the circumstances of Mr. Smoot being killed the previous March at Ft. Gibson; that on the morning after the killing he saw the defendant in the Capitol Hotel with Mr. Benge, and some one asked the defendant who did the killing, and he said he did not know.

Henry Maddox testified that he knew and had known the defendant several years; that the defendant was town marshal of Ft. Gibson; that witness recalled the killing of Smoot at the depot in Ft. Gibson; that he was at the depot the night of the killing; that after the killing he had a conversation with the defendant and asked him where he was at the time of the killing, and that defendant replied that he was standing right at the window between the baggageroom and the depot and saw the killing, and did not know who did it, and witness asked defendant why he did not go down and arrest him, and the defendant kept standing there, and that he caught him by the arm and said, “Let’s go down there and see the operator”; that Wade Johnson, defendant, and witness weiit to the depot, and the defendant went in and stepped right back, and witness asked him who killed this fellow, and he said this operator killed him, and witness asked defendant why he did not arrest him, and again asked defendant who killed Smoot, and defendant- replied that he did not know.

Wade Johnson testified that he remembered the circumstances of the killing of Smoot at Ft. Gibson, and knew and saw the defendant about that time in front of the old McBride Building, when Mr. Maddox was present, and Hymer and his wife were talking, and Maddox asked the defendant who killed Smoot, and he replied that he was on the southeast side of the colored waiting room, outside, heard the shot, but did not know who did the killing. The defendant offered to prove by this witness, if permitted to do- so by the court, arid for the purpose of affecting the credibility of the said witness, that on the evening of the 3d of March, and up to about 1 o’clock in the morning, the witness with Henry Maddox were engaged in playing poker and drinking. The court sustained an objection to the evidence, and the defendant excepted.

Ran Lee testified that he knew the defendant and remembered the circumstances of the killing of Sriioot at Ft. Gibson the previous March; that he was at the depot that night, or early on the morning of the killing; that he learned who did the killing, went to the telephone office and called Mr. Sam Benge, who is a constable, was answered by Benge’s wife, and told her what had happened; that there was no light in the colored waiting room; that there was sufficient light through the doors to identify persons in the room, but in the corner where Mr. Smoot’s body was it was a little dark; that he looked for and found the body; that he did not see any gun around there; that he saw Sam Benge that night; that they found -the defendant 15 or 20 feet from the coal box south and west of the depot; ran up to him and told him they wanted his gun; that they searched him and did not find if and asked him where it was, and he said it was in his coat pocket and he would give it up; that there is an arc light in the street about 100 feet from the depot that shines directly through the two east windows of the depot, and a light across from the street car line back south and west of the depot that shines right in the southwest window of the depot; and that you could recognize a man anywhere in the colored waiting room, except where Mr. Smoot’s body was.

Sam Benge testified that he was a constable: knew the defendant; that he was at the depot of the Iron Mountain Railroad in Ft. Gibson the night Smoot was killed; that he was called .there and arrested the defendant, who was walking away from the depot; that he took him to the Capitol Hotel in town, and asked him if he did not hear the shot, and he said “Yes,” and if he did not see the man that fired the shot, and he said, “No,” that he was in the north end of the building, that a fellow ran out of the negro waiting room and he stopped him, and he said he was the night operator; and that afterwards defendant told witness, “There is no use in my trying to deny the shooting, for they found the cartridge out of my pistol in the waiting room,” and said he would not have shot the fellow if he had known be was Smoot.

The state .then offered in evidence, as Exhibit I, defendant’s pistol, and, as Exhibit Z, the^ bullet found in the clothing of Smoot after his death; ias Exhibit 3, the empty cartridge shell found in said waiting room after the shooting; as Exhibit 4, the coat worn by the deceased at the time he was killed. To the introduction of each of the said exhibits the defendant objected,' and separately excepted to the introduction of said exhibits in evidence.

Sam Benge further testified that, after the arrest of the defendant, he pulled a hat out of his..pocket which he said was Louis Benge’s, and requested that- it be given to him, which hat was placed in evidence as. ¿Exhibit 6 against the objection and exception of the defendant.,

Wm. Ross Adair testified that he was.telegraph operator and ticket agent for the Iron Mountain Railroad at Ft. Gibson at the time Smoot was killed; that he heard the shot and ran over to the depot where Mrs. Hymer was hollering; that he went into the negro waiting room, where he found the body of Smoot behind a bench pulled out from the wall, and that a shotgun was resting on the arm of the bench which was pulled out; that he did not see it until the light was turned on.

The defendant offered to prove by this witness that three of the state’s witnesses were at Henry Maddox’s engaged in a poker game and drinking whisky from about 8 o’clock until just before witness heard the shot fired that-killed the said Smoot, for the purpose of affecting the credibility of the witness. The court excluded the said offered evidence, and the defendant excepted.

. Louis Benge, a witness for the defendant, testified that he was born, reared, and lived at Ft. Gibson; that he knew the defendant, Jim Meiggs-, and Mr.' Smoot prior to his death; that he had met Mr. and: Mrs. Hymér;■ that, on'-the morning of the 3d day of March last, he was with'the-defendant and Jim Meiggs; that he had been drinking considerably; that they got together on the street'about Garland’s Drug Store; that he-heard Meiggs say to;' Welch that he had had trouble with a negro; that, after they' got together-and went to where a negro dance had been going on, it was closed, and they went on down- to -the Iron Mountain depot and noticed a man and woman standing in there; that Meiggs went up to the man and searched him, and asked him what he had on; that the defendant pushed Meiggs away and said, “Let that man alone”; that the man was a white man, and who afterwards proved to be Mr. Hymer; that Hymer and Mrs.- Hymer left, and they followed them; that they lost track of them and returned to the depot, and, as witness started in at the door of the depot, he saw the back of a man in front of him; that something struck him in the head and knocked him out; that the said blow made the scar on his head which he exhibited to the jury; that when he came to himself he was standing on the outside of the depot bareheaded; that he heard some one say, “Kill the son of a bitch,” and he left the depot; that, so far as he had knowledge, neither he nor Meiggs nor the defendant had any intention at the time they went to the depot of robbing, anybody; that he did not remember whether or not he said anything to the lady there that night; that he saw her; that Mr. Smoot and Mr. and Mrs. Hymer must have beaten them back to the depot; that the second time he went back to the depot he did not do anything; that the defendant and Meiggs left him at the sidewalk and went up the path to the depot, and he went right back to the depot, and started in when he was struck on the head; that they were looking to see where the man and woman had gone; that there was an arc light sign there, and he could see them; that the defendant was the marshal, and he wanted to see what he would do with them if they found them — “wanted to see the fun”; that he and Meiggs were pretty drunk and rowdy, and the marshal, the defendant, did not arrest them; that he was pretty drunk, but knew pratically everything he did; that he and Meiggs were staggering around with the city marshal of Ft. Gibson looking for the man and woman; that it was light enough when he got inside the room to recognize that the man and woman were white people; that he did not deny walking over to Mrs. Hymer and saying, “Keep still, they will not hurt him”; that, when they first saw the man and woman, he and Meiggs and the defendant were all together; that principally he was not looking for any negro; that he went to his brother’s house and got a Winchester and returned to the depot.

James Meiggs testified:

That he had lived at Ft. Gibson all of his life. That he knew Louis Benge and the defendant and Mr. Smoot. That he knew Mr. and Mrs. Hymer when he saw them. That he was at the depot of the Iron Mountain Railroad in Ft. Gibson with Louis Benge and the defendant on the morning of the 4th of March last. That prior to the homicide he had been struck by some one, he thought a negro, as he was coming out of “a colored drinking joint.” That he met the - defendant at Garland’s Drug Store and informed him that he had been struck in the face and knocked down. That he went back to the joint where he had been struck, and that it was closed up. That he went down to the Iron Mountain depot and saw some one in the negro waiting room. That he stepped in front of Welch and commenced searching the man, thinking he was a negro, and that the defendant came up and pulled him back and said, “Leave him alone, he is a white man.” That he came back out and came around the depot and saw the woman on the sidewalk. That he had not seen her before. That they started uptown; that it was late in the night. That they walked on uptown behind the man and woman and lost them, and did not see them any more. That he thought they turned in through an alley. That they, came back to the depot, and that be did not remember Benge being with them. That some noise attracted him, and he went into the colored waiting room, and as he stepped inside of the room he got hit on the head. That he did not know just what happened then. That he did not think he was knocked down. That he heard the defendant say, “Put that gun down/’ and some one said, “I will kill you,” and about that time the shot was fired. That he walked out of the depot, and, the next thing he remembered, Hymer was running up the street and defendant hollering after him to halt, and that while Hymer was running witness raid, “Shoot the son of a bitch and he will stop.” That at the time he searched Hymer he did not know he was a white man. That there was no light in the room. That there was an arc light in the middle of the street about 100 feet distant that reflected light through the doors and windows of the said waiting room. That he did not, nor so far as he knew did Benge and Welch, have any idea of robbing Hymer. That he did the searching because he had no gun. That it is the custom with an officer who has no gun to do the searching and the one with the gun to stand back. That his purpose in following on behind the said couple when he went to town and in going back to the depot was “that he thought the woman was a street whore.” That women of that character generally hang around the depot. That when he was an officer he had arrested such characters there. That he went back to the depot and found his hat. That, while he Was looking for his hat, several people came. That he did not know at that time that Smoot had been killed and suggested breaking down the office door. That he and Ran Lee tried to break the door in. That he told Ran Lee, if Smoot was killed, then the defendant killed him, as he was the only one who had a pistol: That on the day of the preliminary Ran Lee met him on the street car and said to him that Cotton and he did not want to prosecute him and Louis, “but we have to stick the defendant,” to which he replied:

“Well, be was going to' swear all he remembered about it and no more. If it sticks the defendant then stick him-; and if it Avon’t, it won’t.”

That Ran Lee talked on a little while about different things, and then said, “You boys can do it,” and said that witness had told Sandy Blake at the depot that “Henry Welch had killed that man for nothing in the world.” That witness replied “Ran, I did not tell him any such damned thing,” and that Ran Lee said, “Yes, you did, you sure told me that doAvn there,” and that witness replied that he could not have told him that, as he did not know Smoot was dead until they came down and found him. That Ran kept talking, and directly said, “Yes, you sure told Will Adair and him that.” That witness said, “I thought you said a Avhile ago that I told you and Sandy Blake.” That Ran replied, “Well, it was one of us.” That Ran Lee looked like he was half drunk that night. That the witness was drinking “Choc” the night he Avas in the negro joint. .That a negro hit him as he stepped out th.e door. That he could not account for the negro hitting him. That he threw a rock back at the negro and then Avent and found the defendant. That he did not know that he Avas looking particularly for the defendant, but ran into him and told him about it. That it had been several months since he had a steady job.

Henry Welch, the defendant, testified:

That he was the marshal of Ft. Gibson. That about 1,600 people live there. That he did not remember seeing Mr. and Mrs. Hymer before that night. That he was well acquainted with Mr. Smoot, Bill Adair, and Sandy Blake. That the arc light in the street threw light on the depot grounds, and that as he Avas passing he saw a man standing in the colored Avaiting room. That on the night of the homicide he had as marshal arrested several persons and put one of them in jail. That he knew his co-defendant and met him that night at Garland’s Drug Store. That Meiggs had blood on his face and his eye was swollen. That he told witness that it occurred at the brick restaurant where the negroes were having a dance, and that the negroes down there had guns. That they decided to find them and went to the brick restaurant- and found it closed, and then went to the station, passed the white waiting room, and went on to the colored waiting room. That they saw a man standing on the inside. That Meiggs went in first and he followed, and saw Meiggs standing up in front of the man as though he had his hand under his coat, and he, seeing that the man was white, took hold of Meiggs pulled him away and told him not to bother him. That as far as he knew up to this time they had not seen any woman in the room. That he heard a woman speak, looked up, and saw her in the east door. That as soon ás he pulled Meiggs away the man and woman went : away together, going east up the sidewalk. That they followed them' and lost them. That he concluded something was wrong about the man and women being out that ' time of the night, and concluded to try and find them, and went to the Iron Mountain station, heard a man holler, ■“Oh! Oh! Oh!” just getting weaker and weaker. That he went into the waiting room and saw a man with a gun up in his hands, and that he pulled his gun as quick as he could and hollered at him: “Put that gun down! Put that gun down!” That the man turned the gun on him and said he would kill him, and when he did that he shot him, believing that he intended to shoot witness. That just after that he saw a man run past the east door. That he now knew the man to be Iiymer. That he ran out of the door and took after him and warned him to stop. That the man stopped, and witness walked up to him and took him by the arm and asked him why he was running, and the man said, “Where is Smoot?” That he did not know the man he shot at was Smoot, and that he did not know whether he hit him or not. That then he went up to the old McBride Hotel and saw Mrs. Smoot, who asked him about the killing of Smoot. That he told her there was not anything to it, and that he did not suppose there was; that he did not think there was. That he then went back to the depot, and Henry Maddox went with him, and that he told him he (witness) did not know who shot Smoot. That he did that because Kan Lee came and had a gun and made the remark, “There is one dead man here, and there will, be another one,” and he did not want any trouble. That Lee did not point the gun at him. That he did not remember what he did. That he did not think he told Henry Maddox that the agent, referring-to Hytmer, killed Smoot. That he remembered making the remark “that maybe the little agent was the one,” but that he did not come out and say that the agent did kill him.

That when he and his codefendant went to the depot they had no idea of robbing anybody, and when they made the second trip to the depot they went back to see if the man and woman had not doubled 'back to the depot. That he had a suspicion of their being tough characters. That he was 42 years old. That he had once been convicted ’of robbery and had served a term in the penitentiary, but since that time had had no trouble. That he knew Ran Lee acted as a deputy shériff, and he thought probably he had a right to carry a pistol, and that was the reason he did not arrest him. That he did not think he told Maddox that he was on the outside when the man was killed. That when he talked to Mrs. Smoot he did not know Smoot was killed. “That he knew he shot at a man and noticed him giving down.” That if he told Maddox that he did not know who shot Smoot he made a false statement: That he did not attempt to disarm Ran Lee or arrest him. That he was not particularly afraid of anybody, but still he was afraid that Ran Lee might do something with that gun. That he talked to Sam Benge about the matter, and that first he told him he did not know who shot Smoot. That Meiggs and Louis Benge were drinking, but not-drunk. That when he found Hy-mer and his wife in the waiting room he did not announce to,them, that he was an officer. That he did not know why he did, not arrest Meiggs. That he knew for some time prior to the shooting that Smoot was the agent of the Iron Mountain Railroad at Ft. Gibson, 'but did not recognize. him when he stepped into the waiting room and saw him with a gun and hollered to him to throw it down. That after he shot Smoot he ran out after Hymer. That he did not know whether Smoot dropped the gun- or not. Tliat the last time he saw the gun it was out of his sight. !That he did not know whether he hit Smoot or not, but left him with a double-barrel shotgun and ran after a man he .did not know. That the only thing that carried him to the depot the second time was to find out if this man and 'woman were loose characters. That the first he knew, of the shell being found in the waiting room was at the preliminary hearing. That there never had been any trouble between witness and Smoot.

The defendant introduced several witnesses who testified that they knew defendant, and that his reputation ás a peaceable and law-abidifig, upright citizen was good; that the general reputation of Ran Lee for truth and veracity was bad.

T. 0. Hymer, being called in rebuttal, testified that, at the time he was being searched by Jim Meiggs at the depot, the defendant did not say to Meiggs, “Let that man alone, that is a white man,” and did not say anything to Meiggs, not a word, and that he did not pull Meiggs away.

Mrs. Hymer, being called in rebuttal, testified that, at the time Jim Meiggs was searching her husband at the depot, that night, the defendant did not say, “Leave that man alone, that- is a white man.”

The evidence being concluded, counsel for the defendant, out of the presence of the jury, stated to the court that—

“In their opinion there is no element of manslaughter in the case; it is either .murder or justifiable homicide.”

Thereupon the court directed that the record show that at the suggestion of the defendant there will not be an instruction given on the question of manslaughter.

The court, together with other instructions, gave the following, to which the defendant excepted:

“You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the deceased, Smoot, at the time of his death was a telegraph operator and was working in the depot station of the St. Louis, Iron Mountain & Southern Railway, then you are instructed that, under the law when entering the depot waiting room, he would have a right under the law to inquire as to the business of any person found in'that room.”

The defendant requested the court to give the jury the following instruction, which the court refused to do, and the defendant duly excepted, to wit:

“You are instructed that if you believe from the evidence that the deceased and either witness Benge or the witness Meiggs became involved in a difficulty in the Iron Mountain depot, and that the defendant; Welch, entered the room with the idea of suppressing it or stopping the difficulty or altercation, and if you further believe from the evidence that when the defendant entered the room the deceased had a shotgun and made such demonstration as caused the defendant to 'believe that he was in danger of losing his own life or having great bodily harm inflicted upon him, or if you have a reasonable doubt as to whether such demonstration was made by the deceased and whether the defendant believed at the time he was in danger of losing his own life or having great bodily harm inflicted upon him, then and in that event you are instructed that the defendant had a right to protect himself and is entitled to a verdict of not guilty at your hands.”

The defendant timely moved for a new trial, which motion was overruled and exception saved.

Very many errors are assigned in the petition in error, but only the following are assigned and argued in the defendant’s brief, viz.:

“(1) That the verdict of the jury was contrary to the law and evidence.

“(2) That the court erred in not permitting the defendant to prove on cross-examination of the witnesses Ran Lee, Henry Maddox, and Wade Johnson that they, on the night of the killing of the deceased, Smoot, were engaged in gambling at Henry Maddox’s place of business where liquor was also sold.

“(3) The court erred in giving, over the objection of defendant, instruction No. 12.

“(4) The court erred in refusing to give, at the request of the plaintiff in error, instruction No. 2.”

All errors not assigned and argued in defendant’s brief will be regarded abandoned, and the errors so> argued considered in the order stated above.

It is true that the evidence is in conflict as to the facts immediately preceding the homicide; but this court, underTts rule cited in defendant’s brief, “That a judgment in a criminal case will not be reversed when there is substantial evidence reasonably tending to support the verdict,” after a most careful reading and consideration of the entire evidence, is of the opinion that there is sufficient evidence to support the verdict rendered, even if the theory of the state, “that the defendant’s abject in going to the Iron Mountain Railway station was to commit robbery,” be entirely eliminated. However, the theory of the state that the defendants intended to commit robbery, we think, the jury, from the evidence, could reasonably believe.

We agree with the opinion; expressed to the court, by the learned counsel for the defendant, “that there is no element of manslaughter in this case, that it is either murder or justifiable homicide,” and are unable to say that the jury could have properly returned a verdict that the killing of Smoot was a justifiable homicide.

We are unable to see how, where the witnesses Ran Lee. Henry Maddox, and Wade Johnson were, and what they were doing, prior to the homicide, and in no wise connected with the homicide, was germane to any issue in this case. The purpose of said offered evidence, as stated by counsel for defendant, was to affect the credibility of said witnesses. The defendant himself adfmitted as a witness that the important part of the said witnesses’ testimony, “defendant’s denial of knowledge of who fired the fatal shot.,” was true, and hence fully corroborated said witnesses. The general reputation of a witness for truth and veracity cannot be shown by his specific acts, and why the witnesses were up at a late hour of the night, where they were, and that they were engaged in gambling at a place of business where whisky was sold, a place some distance from the scene of the homicide charged, was not evidence of want of credibility, even if true. Besides, it was entirely immaterial whether the said witnesses were credible witnesses or not; the defendant having admitted the truth of the material parts of their testimony.

“The truthfulness of a witness cannot be impeached by proof of general bad character for morality, or by proof of specific acts tending to prove want of morality.” Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153.

The requested instruction refused was sufficiently covered by the general instructions of the court, and hence was properly refused.

“It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions to the jury.” Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029.

We are of the opinion that the instruction numbered 12, given as a part of the general instructions to the jury, was not applicable to any evidence in the case, was abstract, and could not have been given. But we are unable, after an examination of the entire record, to see that the giving of said instruction “resulted in a miscarriage of justice.” The court did not commit reversible error in giving said instruction.

“The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defendant.” West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129.

The motion for a new trial was properly overruled.

Finding no error sufficient to warrant a reversal, the judgment of the trial court is affirmed.

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