text:
    HARDY SMITH v. STATE.
    No. A-4620.
    Opinion Filed June 7, 1924.
    (226 Pac. 390.)
    (Syllabus.)
    Evidence — Accomplice—Corroboration Insufficient. Where the only testimony pointing- to the guilt of the accused is the uncorroborated testimony of an accomplice, such testimony must in some manner be supported by independent' evidence connecting the accused with the commission of the offense; and such corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

      Appeal from District Court, Mayes County; A. C. Brewster, Judge.
    Hardy Smith was convicted of murder, and he appeals.
    Reversed.
    S. F. Parks and J. S. Davenport, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

By a verdict of a jury rendered September 28, 1922, plaintiff in error, Hardy Smith, in this opinion referred to as the defendant, was convicted of the murder of Mrs. Willie Adair, and his punishment fixed at imprisonment in the state penitentiary for the term of his natural life. It would serve no good purpose to recite the gruesome details of the murder of Mrs. Willie Adair at the hands of Elias Ridge, a 13 year old negro boy, charged jointly with this defendant with the murder of Mrs. Adair. Elias Ridge admitted the killing of Mrs. Adair, and testified that the defendant, his brother-in-law, hired him to kill her, and that for the commission of this murder he was to receive a pig from defendant.

The Attorney General has filed a confession of error in this case, in which he states that a reading of the record from beginning to end nowhere discloses any evidence whatever corroborating the accomplice Ridge; that the testimony of both the state and the defendant indicates that the defendant had nothing to do with the commission of this crime; that after he learned of the murder he and his family gave the suffering woman such aid as they were able to give; that defendant summoned a physician and notified the neighbors of the commission of the crime; also tha.t he apprised the officers and others of what he knew about the tragedy, and told them that Elias Ridge was the perpetrator.

According to the testimony of Ridge, he and the defendant were in law accomplices. Ridge made several conflicting statements concerning the manner in which he committed the crime and his purpose in committing it. This court has carefully examined the testimony, and agrees with the Attorney General that there is no evidence of any kind or character corroborating the witness Ridge or connecting the defendant with the commission of the murder.

The confession of error of the Attorney General is well taken. It has been often held by this court that the uncorroborated testimony of a person convicted of a homicide or other offense must in some manner be supported. by independent evidence connecting the accused with the commission of the offense, and that such corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

The judgment of the trial court is therefore reversed, and the cause ordered dismissed, unless newly 'discovered evidence is available tending to corroborate the testimony of the accomplice, in which event a new trial is ordered.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    SAMUEL DORRIS v. STATE.
    No. A-4327.
    Opinion Filed June 7, 1924.
    (226 Pac. 590.)
    (Syllabus.)
    1. Trial — Instruction as to Burden to Show Mitigation or Justification Approved. Upon a trial for murder it is not error for the trial court to instruct the jury that “The commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable,” when the killing is proved or admitted by the defendant and the plea of self-defense is interposed as in this case, where the court further properly instructs the jury on the presumption of innocence and that the burden is upon the state to prove the defendant guilty as charged in the information beyond a reasonable doubt.

      2. Evidence — Presumption of Innocence as Fixing Burden of Proof. The presumption of innocence fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion.
    3. Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree.
    4. Trial — Weight of Evidence for Jury. The weight of the evidence is for the jury.
    Appeal from District Court, Melutosb County; G. M. Barrett, Special Judge.
    Samuel Dorris was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    J. G. Harley- and J. W. Bobertson, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges Samuel Dorris and Mary Dorris, his wife, with the crime of murder, for the killing of Mrs. Flora E. Green. Upon his separate trial the jury returned a verdict finding Samuel Dorris guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the penitentiary for the term of 10 years.

The court after denying his motion for a new trial on December 8, 1921, pronounced-sentence upon him in accordance with the verdict. He has appealed from the judgment, and alleges error in the admission of evidence, error in the instructions to the jury, and that the verdict was contrary to law and the evidence.

It appears that the deceased, Mrs. Green, was a tenant on land owned by appellant’s father. Appellant and his family lived on the place in a house 200 or 300 feet from his father’s house, and about a quarter of a mile from the house occupied by the deceased and her children. On Sunday evening, August 15, 1920, the deceased and her 13 year old daughter, Pearl Green, were returning to their house on horseback; both riding the same horse. Appellant and his wife were standing by the roadside in front of their home, and appellant’s wife stepped out, stopped the horse by taking hold of the bridle, and questioned the deceased about something she had said to appellant’s mother. During the conversation the shooting occurred. Four or five shots were fired, killing Mrs. Green, and four gunshot wounds were found on the body, two of which were in the back. .

The testimony of Pearl Green makes out a case of coldblooded cowardly assassination. She states that when Sam Dorris fired the first shot her mother jumped off the horse and pulled her off; then he shot her again; that she ran to the other side of the horse and he shot her again; then she ran up the road, and he followed her and shot her again; that Mrs. Dorris was holding the horse while he was shooting; that her mother was not armed, and did not have a gun or a pistol at the time of the shooting or at any other time that day.

J. H. Carter testified:

“I was living a half quarter west from Sam Dorris, I rode by his house horseback. He was in the front yard. I passed the time of day, and about 75 yards further on met Mrs. Green. Immediately after loud talking behind me attracted my attention. I looked and saw Mrs. Dorris holding the bridle of Mrs. Green’s little roan horse, and Sam Dorris crossed the road. Then I heard the gun fire. Mrs. Green’s horse ran backwards, and she jumped off, and the little girl fell off some way. There were four or five shots. Mrs. Dor-ris hollered for me to come back.”

Andrew Bobbitt testified:

“I was behind Sam Dorris’ barn when the shooting occurred. Just before the shooting I saw Mrs. Sam Dorris holding the bridle rein of Mrs. Green’s horse, and I heard her say, ‘Get down off your horse; we are going to whip you.’ In about two minutes I heard five shots fire.”

J. B. Hollaway testified:

“I lived in a house near appellant’s father and about 300 yards from appellant’s house. I had been to Sunday school and stayed for singing in the afternoon. I had reached home and was helping my wife to get out of the wagon when I heard five shots, all sounded alike. I ran for about 100 yards, and heard Pearl Green say to an older sister who was coming through the pasture, ‘Sam Dorris has killed mama.’ I went on and saw Mrs. Green’s body lying in the road. Sam Dorris Was in his yard and called me. I went in, and he said, ‘I take you to be a friend of mine and I want you to hold this gun until the sheriff comes and turn it over to him.’ He said it was Mrs. Green’s gun.”

On the part of the defense, Ott Tackett testified:

“I was standing in the brush near the barn with Andrew Bobbitt and heard the shooting. The first shot was from a large gun. I think it took about five minutes to fire the five shots; I heard Mary Dorris say, ‘Stop and get off your horse; we are going to whip you.’ Mrs. Green says, ‘No; turn me loose and let me go on,’ and the shooting commenced.”

D. Lee testified:

“Saturday evening Mrs. Green said something was bothering around the house at night and I gave her my gun, a 38 Colt’s special, six chambers, all loaded. Appellant’s wife is my sister.”

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

“When Mrs. Green rode np my wife says to her, ‘I want to have a talk with you,’ she says, ‘About what?’ My wife says, ‘About calling Mrs. Dorris, my mother, a God damn bitch and coward,’ and she says, ‘She is a God damn bitch, ’ and from some place in her riding skirt she drew, this six-shooter, I hollered, ‘for God sake put that gun up.’ Instead of that she turned and fired and slipped off the horse. I jerked my pistol from under my shirt and just as quick as I could I went to firing. When she pulled the gun the little girl got off the horse and started away crying. My wife ran down the road with Mrs. Green after her, and as she passed by me I told her not to shoot. I followed Í judge twenty or thirty steps, my wife went to turn and fell down; then Mrs. Green turned on me with that gun, and -I fired the fatal shot. Mrs. Green fell, and I picked up the gun she had. My wife called Mr. Carter, but he went on towards home. Mr. Hollaway came up, and I said, ‘Here is Mrs. Green’s gun, and I want you to take it and turn it over to Sheriff McCune.’ I did not go back to the body after I got the gun. I shot Mrs. Green because I honestly believed she was going to kill my wife.”

Counsel for appellant in their brief say that appellant is practically resting his case on the alleged error of the court in giving an instruction which is a quotation verbatim of section 2719, Comp. Stats. 1921. .They further say:

“We recognize the fact that this court has passed squarely on this question in Boswell v. State, 8 Okla. Cr. 152, 126 Pac. 826; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561, and other cases holding that this instruction is not erroneous because it is couched in the exact language of the statute.”

The section in question reads:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Section 2719, Comp. Stats. 1921.

It is the well-settled rule that this does not mean that the defendant must prove such circumstances by a preponderance of the evidence, but that the presumption that the killing was felonious arises fjrom the mere proof of the commission of the homieide by the defendant, and the burden of proving circumstances of mitigation, etc., thereby devolves upon him. The defendant is only bound under this rule to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense. It can make no difference whether this reasonable doubt is the result of evidence on the part of the defendant, tending to show circumstances of mitigation or that justifies or excuses the killing, or from other evidence coming from him or from the state.

The universal rule that a defendant shall not be convicted unless the evidence proves his guilt beyond a reasonable doubt applies to the whole and every material part of the case.

The statutory rule does not attempt to provide the degree of proof required of him, but leaves the rule as to the degree of the evidence necessary to convict as it was before. In this connection the court further instructed the jury as follows:

“You are instructed that if you believe from the evidence, or have a reasonable doubt thereof, that it reasonably appeared to the defendant, Samuel Dorris, situated as he then' was, that he and his wife, or either of them, were in danger of losing their lives, or of receiving great bodily injury at the hands of the deceased, and that he inflicted the wounds which caused the death of the deceased in order to protect himself and his wife, or either of them, from the threatened danger, then the homicide would be a lawful one, and it would be your duty to acquit the defendant, unless you believe from the evidence beyond a reasonable doubt that the defendant was the aggressor.”
“The defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and this presumption continues until every material allegation in the information is proven by competent and legal evidence, to your satisfaction, beyond a reasonable doubt.”
“If, therefore, after a careful comparison, weighing, and consideration of all the evidence in the case, you entertain a reasonable doubt of the guilt of the defendant, in that event you will resolve that doubt in favor of the defendant and acquit him.”
“The burden is upon the state to prove the defendant guilty as charged in the information beyond a reasonable doubt, and if the evidence fails to satisfy your minds beyond a reasonable doubt of the guilt of the defendant, then it is .your duty to give the defendant the benefit of such doubt and acquit him.”

The weight of the evidence was a question for the jury under the instructions of the court which gave appellant the benefit of all reasonable doubt.

We have seldom read a record in a homicide case where there were less palliating circumstances in behalf of the defendant than this case presents. Under the evidence he might well have been convicted of murder.

Finding no error in the record, the judgment of the lower court is affirmed.

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


author: BESSEY, J.

text:
    T. W. COOK et al. v. STATE.
    No. A-4472.
    Opinion Filed June 7, 1924.
    (226 Pac. 595.)
    (Syllabus.)
    1. Evidence — When Hearsay Evidence Admissible as Part of the Res Gestae. Hearsay evidence may be admissible as a part of the res gestae. One of the recognized exceptions to the rule that hearsay evidence is not admissible is where spontaneous statements or exclamations are made by an injured person, declaring the circumstances of the injury, where such statements are made immediately after the injury or during such indefinite time thereafter as the stress of pain, fear, or excitement prevents the reflective faculties of the narrator to control, so that the utterances are spontaneous and in direct response to the sensations produced by the physical shock or mental excitement. The utterances, to come within the exceptions to the rule, must be under the uncontrolled domination of the senses, so near in point of time that considerations of self-interest and reflection could not have been fully restored.
    2. Same — Incidents as Told by Injured Person, 30 or 40 Minutes Thereafter, Inadmissible Except as Part of Res Gestae, Evidence given by a third person concerning a recital of the incidents of a fatal assault made by the injured person in response to questions propounded to him by the witness at a. different place, 30 or 40 minutes after the difficulty, where the answer made by the injured person indicates a purpose of identifying the perpetrators, is hearsay testimony, and is inadmissible, unless the statements were made under circumstances indicating a want of deliberation, or where the narrator’s reasoning powers were suspended under stress of physical or mental shock or excitement.
    3. Witnesses — Cross-Examination—Hostility of State’s Witness. The accused may, on cross-examination of a witness for the state, as affecting the credibility of such witness, show that the witness entertains ill feeling towards the accused and that the witness had recently assaulted and abused him.
    Appeal from District Court, Pawnee County; Redmond S. Cole, Judge.
    T. W. Cook and Alvis Fears were convicted of the crime of murder and sentenced to life imprisonment, and they appeal.
    Reversed and remanded as to defendant Cook, and dismissed as to defendant Fears.

      J. M. Springer, for plaintiffs in error.
    Tbe Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error T. W. Cook, here referred to as the defendant, appeals from a judgment and sentence of conviction rendered against him in the district court of Pawnee county on the 22d day of April, 1922, wherein he and Alvis Fears were found guilty of the murder of Harry Aurandt on the 18th day of December, 1921, and their punishment fixed as above stated. This cause originated in Tulsa county and was transferred to Pawnee county on application of defendants for a change of venue.

It has been made to appear to this court that Alvis Fears, codefendant with T. W. Cook, is and has been for some time a fugitive from justice, and the appeal as to Fears is therefore dismissed.

The facts surrounding this homicide, as recited in the record of the proceedings in the trial court, pertain not only to the occurrences at the scene of the fatal tragedy near Tulsa, but include also the subsequent flight of the alleged perpetrators; their apprehension and incarceration in jail; the incidental shooting of two innocent persons by peace officers at another place; and a robbery said to have been committed by the defendants at still another place, a story full of exciting situations, featuring bandits and officers with swift motor cars and high-powered firearms, and the rushing of ambulances and police squads to different places, in different directions, covering a period of from 8 o’clock p. m. to midnight of December 18, 1921.

It would be impractical to recite all the incidents contained in the record comprising more than 1,100 typewritten pages, but to intelligently treat the assignments of error relating to the admission and rejection of testimony an outline of the proof is set out as briefly as may be consistently done.

The only witness who testified to the details of the incidents leading up to the fatal gun battle resulting in the death of Harry Aurandt was Ike Wilkinson. He testified that he and Aurandt were police officers of the city of Tulsa, not on official duty on Sunday evening, December 18, 1921; that he and Aurandt left the home of the latter in Tulsa, in an automobile driven by Aurandt, about 7 o’clock that evening ; that they drove south on the Peoria paved road, thence east about 6 miles, thence north on to the road known as Federal Drive, where they turned west in the direction of Tulsa; that as they were crossing a cross road at the corner of the Cy Avery farm they observed a car standing facing south; after proceeding a short distance past this other car the car in rear followed and passed the car occupied by Wilkinson and Aurandt, and as they passed Wilkinson and Aurandt observed three revolvers protruding from the curtains inclosing the car and heard a command, accompanied by oaths, to stop their car. In response to this command Wilkinson and Aurandt guided their car to the side of the paving and stopped; the car from which the command to stop had been given drove past them and stopped immediately in front of the car occupied by Wilkinson and Aurandt, at a place about 17 to 20 feet from where their car stood. The lights of Aurandt’s ear were on, so that the space around the car ahead was illuminated. Wilkinson says that Tom Cook, one of the defendants, was one of the occupants of the car which halted them, and that he was the first one to get out, followed by Alvis Fears, the other defendant, both with revolvers in their hands; that Cook fired a shot from his gun towards the car in the rear and then retreated about 30 feet west, in front of both ears, where he moved about on the pavement from side to side; that Alvis Fears came back to near the front of the car occupied by Wilkinson and Au-randt and fired a shot from his revolver; that while this was going on Aurandt was preparing to get out of the car and did finally get out, when more shots were fired by Fears, one of which passed through the body of Aurandt, penetrating a lobe of the liver, passing through a part of his stomach, perforating the intestines and spleen; by another shot Au-randt was wounded in the left leg, about midway between the groin and the knee, the shot passing through the leg and out a little lower on the outside of the leg than at the point of entrance. While this was taking place Aurandt cried out, “Don’t shoot me that way.” Wilkinson, while preparing to alight, was severely wounded in the thigh and leg, which caused him to sink back into the car seat. During the drive preceding the shooting Wilkinson had a small bore shotgun, looking for rabbits to shoot as they drove along; during the affray he attempted to shoot at Fears with this shotgun, but the gun snapped and the shell failed to explode, and while he was in the act of trying to use the second barrel a shot from Fear’s revolver knocked the gun out of Wilkinson’s hands. After the shooting the bandits’ car began to move and Fears and Cook got into their car and rapidly drove away, in the direction of Tulsa. As the car drove away Wilkinson, unable to move from his seat because of his wounds which caused him to be partially paralyzed, reached around the windshield and fired at random towards the fleeing bandits. Apparently none of these shots took effect. Aurandt, although fatally wounded, managed to get into his car and drive on west until they reached the first house, which was the residence of a Mr. Kennard, located about a half mile from the spot where the shooting occurred.

From the testimony of Wilkinson and other witnesses it appears that the wounded men stopped here and cried for help. Receiving no immediate response Anrandt got out of the car and went to the front porch of the Kennard residence, where he again called for help and then fell on the porch exhausted. Mr. and Mrs. Kennard were about to retire for the night; they had heard the shooting, which occurred out of sight, over the hill from their place; they had also heard some commotion made by persons in a car which had passed in the road just a few moments before, going rapidly towards Tulsa, and which, after passing the intersection of the Skiatook road at that place, had suddenly stopped, backed up, and driven rapidly north on the Skia-took road towards Skiatook. The Kennards, not knowing the meaning of all that had occurred, did not instantly go to the relief.of the wounded men. There were three or four neighbors near and Mr. Kennard went to. them for help and Kennard and these neighbors came and carried Aurandt into the house and placed him on a cot, and also carried Wilkinson in and placed him in a chair.

In response to questions from some of these persons Wilkinson and Aurandt gave some description of the persons who had wounded them and stated that they knew who they were. One of the women there stated that Wilkinson in particular told who they were and said it was Tom Cook’s gang. Upon receiving this information some of the party there phoned to police headquarters, giving the information they had received from the wounded men. Thereupon police squads were organized and sent out for the purpose of apprehending the bandits, and ambulances were dispatched to take the wounded men to the hospital. After the police officers arrived at the Kennard residence they were informed (according to their testimony) as to the identity of the parties who had done the'shooting. This all took place sometime between 8 and 9 o’clock. At the time the.wounded men were taken into the Kennard home it was probably about 8:30, and the time of the actual shooting was probably about 15 or 20 minutes earlier.

One of the police squads hastily organized to search for the perpetrators of the shooting consisted of an officer of experience and four men deputized to accompany him and assist in the search. They proceeded in a high-powered automobile towards Skiatook and after driving 4 or 5 miles in that direction they saw and heard a car approaching at a rapid rate of speed; they stopped and parked their car partially across the pavement, and three of the party proceeded forward in the reflection of the spot light on the car, exhibited their official stars and waved their arms at the approaching car, calling out that they were officers and wanted the driver of the car to stop. Instead of doing so the driver increased his speed and apparently tried to run over the officers standing in the highway, and as the car sped past the officers shot at it. They then got in their own car, pursued and overtook the car that had just sped past them, ran ahead of them and stopped them. They then discovered that they had wounded a boy and a woman who had no connection with the shooting on Federal Drive. One of the party then proceeded with these wounded persons to the hospital, while the others turned and pursued their journey towards Skiatook. Presently another car approached rapidly, and' the plan used in • attempting to stop the first car was repeated, except that this time the officers parked their ear directly across the road so as to obstruct passage.

The car stopped because of this obstruction, and the occupants were found to be Tom Cook, Alvis Fears, and Frank Shelton. The officers compelled these men to hold up their hands, alight from the car, and submit to search. The officers found on the persons of the men and in the car four revolvers, some pocket knives, keys, ammunition, and other articles. On account of the inexperience of some of the officers it was feared that the defendants might attempt to escape, so they were compelled to lie prone upon the ground, face downwards, until another automobile came along, from which the officers procured some baling wire with which they tied the hands and wrists of the defendants securely behind their backs. They then proceeded to take the defendants to police headquarters in Tulsa, where they were lodged in jail. The guns, ammunition, and other articles found upon the defendants were also delivered at police headquarters.

The time at. which the officers apprehended and arrested the defendants was about 11 o’clock. Among the articles found in defendants’ possession were a gold-handled penknife, a pocket knife, a bunch of keys, and a package of mints. The evidence discloses that at about 10:30 o’clock that night, at a crossroad intersection about 6 miles from Skiatook, and about 18 or 19 miles from the scene of the fatal shooting on Federal Drive, these defendants held up a young man and a young lady at the point of guns and robbed them of this gold-handled penknife, poeket knife, bunch of keys, and a package of mints. This was at a point about 6 or 7 miles from the place where the defendants were arrested.

It was shown by oral testimony and by demonstrative evidence that one of the revolvers taken from defendants had a defective plunger pin that made a peculiar mark where it struck and exploded the cartridge, and also that this revolver was not exactly uniform in bore, so that a cartridge after being exploded contained a slight bulge, conforming to the defect in the bore of the gun. In searching about the place where the shooting occurred on Federal Drive, on the morning following, two cartridge shells were found by one of the officers who had arrested the defendants the night before, which shells bore the marks of a defective plunger pin and also disclosed this peculiar bulge at a place corresponding to the defect in the bore of the pistol in question. These empty shells were introduced in evidence before the jury.

In this connection, it appears that the officer who claimed that these empty shells were found by him at the place of the shooting was the same officer who defendants claim abused them at the time of their arrest on the Skia-took road. Defendants claim that this empty shell evidence could have been placed there by this hostile witness, or by some other witness overly anxious to fasten the crime upon the defendants.

The defendants maintain that the police officers who testified for the state, including those who effected their arrest and the officers about the police station, were exceedingly hostile and prejudiced against the defendants. /They offered on cross-examination of several officers to show that the officers who made the arrest knocked them down, stamped upon them and kicked them, struck them with their fists and that one of them cut a gash or scratch on the face of Tom Cook, and otherwise mistreated them in an effort to get them to confess that they were the persons who did the shooting on Federal Drive. Defendants offered further to show that after they were taken to the police station they were assaulted and beaten in an endeavor to force a confession. The court refused these proffers,' which defendants claim was grievous, prejudicial error.

The defendants should have been accorded that right. It is always competent, as affecting the credibility of a witness, to show on cross-examination that he entertains ill feelings towards the accused. If the officers did abuse the defendants by beating and otherwise mistreating them, such facts could be shown as indicating bias or hostile feeling towards the defendants.

The court also permitted the state, over the objections of defendants, to introduce several witnesses who testified to what Aurandt and Ike Wilkinson told them at the Kennard home, in response to inquiries made by different persons there as to who did the shooting, at times from 30 to 45 minutes after the shooting occurred. The court permitted these witnesses to testify to what these wounded men said concerning the shooting and who did it on the theory, apparently, that it was a part of the res gestae. Defendants say that the admission of this testimony was also prejudicial error;

The defendant introduced a number of witnesses to attack the general reputation for truth and veracity of Ike Wilkinson, the only eyewitness of the fatal shooting on Federal Drive. It was contended by defendants that witnesses who said that they knew the reputation of Ike Wilkinson for truth and veracity in Tulsa, and that that reputation was bad, were competent. The court held that the defendants should show that each character witness knew the reputation of Ike Wilkinson in the neighborhood where he lived,.confined to three or four, or a few, blocks from his residence. This we think was error, but this error was cured, for the most part at least, because in the course of the examination of these witnesses several were finally permitted to state that they knew his reputation for truth and veracity in Tulsa, and that it was bad. The testimony of some of these character witnesses was somewhat shaken on cross-examination.

It was shown that Ike Wilkinson had been for years a police officer in Tulsa. He may have had a city-wide reputation as a prevaricator, and it would be an unwarranted limitation to confine the scope of the knowledge of his reputation to that particular part of the city where he at that time resided. If the state desired to test the claim of the character witnesses who said they knew his reputation for truthfulness throughout the city of Tulsa, they had a right to go into that feature on cross-examination. The evidence of the character witnesses who stated that they knew what Wilkinson’s reputation for truthfulness was in Tulsa was admissible. The weight of the evidence so given was for the jury, and if it developed on cross-examination that the witness did not in fact know what that general reputation was, or that the reputation he had was equivocal and local, the jury would give his testimony such credence only as the facts might warrant.

After about an hour and a half had intervened between the time of the shooting on Federal Drive and the time the hospital attendants were preparing to ■ place Aurandt on the operating table at the hospital, Aurandt said to the attending surgeon, just before the anesthetic was administered, “Doctor, this is awful,” or “This is bad, isn’t it?” To this question the surgeon replied, “Yes, Harry; this is very serious.” Aurandt then said,.“And only to think, the dirty sons of guns shot me with both hands in the air.” The surgeon said, “Do you know who did it?” Aurandt nodded his head in the affirmative, but did not make any further answer, because some one else there present answered for him. The court permitted this testimony to go to the jury upon the theory that it was admissible as a dying declaration.

Considered in connection with all the other parts of the record, this testimony is not vitally important. We- think, however, it was probably admissible as a dying declaration, to be given such weight as the jury might deem it entitled. A man who had been shot through the body, with a number of vital organs penetrated, who was bleeding profusely, and some of whose intestines were protruding from his wounds, about to go, upon the operating table, where the attending surgeon told the patient that his condition was “very serious,” must have realized that death was impending.

At the Kennard home, while there awaiting the arrival of the ambulances, Wilkinson, in response to a question asked him by Ed McBride, “What shot you?” replied, “Tom Cook and a short little fellow. Cook had a scar on his face.” Mrs. Gillespie, a neighbor there present, said to Aurandt, “It is a pity we don’t know who did this,” and in reply Aurandt gasped, “We saw, we saw; I know.” A little later, after the officers came, in response to questions put by one of them, Mrs. Gillespie heard Wilkinson say, “Tom Cook’s gang did it. Alvis Fears was one of them.” Mrs. Gillespie testified further that Wilkinson said he would have blowed his (Fears’) head off if the gun hadn’t snapped. Mrs. Ken-nard said that as Aurandt lay on the porch he said, “Oh, lady, let me come in. I have been shot.” Later Aurandt said that he was shot with his hands up. She heard Wilkinson tell a police officer that Cook was one of the men, that he had a scratch on his face. Mr. Kennard testified that Wilkinson said he knew who shot them; that one was Tom Cook; that he had a mark on his face; and that the other one was a little short fellow. A policeman there testified that Ike Wilkinson said that Tom Cook and Fears did it; that his shotgun snapped in Alvis Fears’ face. Another policeman said that Ike said, “If the gun hadn’t snapped I would have blown the head off of Alvis Fears, ’ ’ and that Tom Cook had a scratch on his face.

These were all statements made to the witnesses by the wounded men from 30 minutes to one hour after the shooting on Federal Drive. These statements were testified to by the different parties who heard them when made, and these hearsay statements were admitted over the strenuous objections of defendants, upon the theory that they were a part of the res gestae.

One of the recognized exceptions to the rule that hearsay evidence is not admissible is where spontaneous statements or exclamations are made by an injured person, touching upon the circumstances of the injury, where such statements are made immediately after the injury or during such indefinite period of time thereafter as the stress of pain, fear, or excitement prevents the reflective faculties, of the narrator to control, so that the utterances are spontaneous and in direct response to the sensations, produced by the physical shock or mental excitement. The utterances, to come within the exceptions to the rule, must be under the uncontrolled domination of the senses, and so near in point of time that considerations of self-interest and. reflection could not have been fully restored. Sections 1745, 1746, 1747, Wigmore on Evidence, vol. III.

The great mass of judicial opinions, many of them cited in the briefs, touching upon the length of time elapsing between the shock creating the excitement and the time the declaration is made, on account of the boundless variety of surrounding circumstances, afford no definite precedents to determine exactly what length of time will preclude the ad-, mission of statements as a part of the res gestae. The time must necessarily vary according to the circumstances of each particular case. The gist of the inquiry is: Were the exclamations made spontaneous, under stress of excitement precluding the reasoning faculties, self-interest, or design of the narrator? • If the hearsay statement was a deliberate narration of a past event, it is inadmissible. Chapter 59, Wig-more on Evidence; section 510, Underhill’s Criminal Evidence.

In this case the hearsay evidence admitted consisted of declarations made in response to questions of inquiring persons, some 30 minutes or more after the actual tragedy had ended, at a place more than a half mile distant, while the men who made the declarations were suffering intense pain from serious or mortal wounds. But the evidence shows that they had been able in the meantime to drive an automobile, to summon help, and with apparent deliberation they described the details of the battle. One of the wounded men, Ike Wilkinson, survived and testified at the trial, where he confirmed and enlarged upon what he had told the spectators at the Kennard home while waiting.for the ambulance, indicating that the stress of excitement and suspension of reasoning powers had passed and that the declarations made to the Kennards and others there assembled, as testified to by them, were in fact a rational narrative of past incidents, and therefore not admissible as spontaneous declarations made under stress of excitement. These statements indicate a purpose and design of apprising those present of the identity of the perpetrators and of giving those present information that would aid in their apprehension. Neither can these declarations be considered as “verbal acts,’-’ as defined by Mr. Wigmore. Chapter 58, Wigmore on Evidence, and cases there cited.

The hearsay rule of evidence excludes extrajudicial utterances, not a part of the main transaction, when offered to prove the truth of matters asserted by witnesses at the trial. The evident purpose of the introduction of the statements made by these wounded men at the Kennard home was to establish the truth of the assertions made, and particularly to corroborate and bolster up the testimony of Ike Wilkinson given at the trial, as establishing the identity of the accused. In this connection we must remember that the veracity of Ike Wilkinson was in some degree impeached, thus making the admission of hearsay corroboration exceedingly dangerous.

This and other records here show that these defendants have been implicated in the perpetration of other violent crimes. If it could be done without violence to established law and judicial precedent, we would like to stretch the blanket of “harmless error” to cover this case. But these defendants may not have been implicated in this particular crime. When the identity of the accused rests largely upon the testimony of a single witness whose veracity has been impeached, supported by hearsay evidence emanating from the same source, it would be establishing a dangerous precedent to hold the admission of such hearsay evidence harmless.

For this error, and for the error of the court in refusing to permit the defendants to impeach the credibility of the several officers who testified for the state by showing their hostility towards the defendants, the cause as to TJ W. Cook is reversed and remanded for a new trial. The appeal as to Alvis Fears is dismissed.

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


text:
    G. E. BEAN v. STATE.
    No. A-4369.
    Opinion Filed May 26, 1924.
    Rehearing Denied June 12, 1924.
    (226 Pac. 115.)
    (Syllabus.)

      1. Judgment and Sentence — Sentence Authorized on Plea of Guilty. In a criminal action the defendant has a right to plead guilty; and the effect of such a plea is to authorize the imposition of the sentence prescribed by law upon a verdict of guilty of the crime sufficiently charged in the information.

      2. Same — Power to Reconsider Judgment and Increase or Diminish Sentence. The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term at which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed, or put in operation, is inherent in all courts of record.
    Appeal from District Court, Seminole County; John L. Coffman, Judge.
    G. E. Bean was convicted of embezzlement, and he appeals.
    Affirmed.
    Pryor & Stokes, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for embezzlement and sentence of imprisonment for a term of 10 years, rendered upon a plea of guilty entered by appellant, G. E. Bean, upon his arraignment on an information filed in the district court of Seminole county, August 13, 1921, in substance charging that on the 13th day of September, 1920, G. E. Bean then and there being the county treasurer of Seminole county, and by virtue of said office authorized and empowered to collect and receive funds and moneys coming to and belonging to the said county and all subdivisions thereof, including joint school district No. 12, comprising certain portions of the counties of Seminole and Hughes, and acting in such capacity, did receive from the county treasurer of Hughes county for the benefit of said joint school district No. 12, the sum of $1,144.26; that the said G. E. Bean, with the unlawful, fraudulent, and felonious intent and design to deprive said county, including joint school district No. 12, of said money, did then and there unlawfully, willfully, fraudulently, and feloniously appropriate and convert and embezzle the same to his own personal use and benfit the said sum so received by him, and to a use and purpose not in the due and lawful exercise of the office and public trust aforesaid.

It is assigned as error that:

“The court erred in not sentencing the defendant to §erve a term of three years as agreed upon by the court, the county attorney and the defendant at the time the plea was entered, and upon which agreement the defendant was induced and inveigled into entering his plea of guilty, and that the punishment imposed is cruel and excessive.”

—and praying that the sentence be modified to imprisonment for a term of three years.

The transcript of the proceedings in the court below shows, the following entry:

“November 7, 1921. The defendant pleads guilty, sentence set for Dec. 2. ¡To stand on his present bond.”

That on the 19th day of December, 1921, the state appearing by the county attorney, L. 0. G-ilstrap, and Allen Adams, assistant county attorney, and the defendant appearing in person and by his attorneys Pryor & Stokes, the following proceedings were had:

“By the Court: You heretofore’ entered your plea of guilty on an understanding had with the county attorney’s office that you would be sentenced to three years and a fine in one case and the other eases. that have been charged against you be dismissed. After that, plea you was taken before the court with that understanding, and after further investigation by the court of the situation, the court was of the opinion that the punishment was not adequate and refused to pass the sentence and assess the fine as understood at that time. And the court offered you on the 2d day of December an opportunity to withdraw your plea of guilty and re-enter your plea of not guilty. At that time it was agreed by all of the parties and so acted upon by the court that the time for passing sentence was set for the December 19th, and the- court now offers you the opportunity again, if you so desire, to withdraw your plea of guilty as entered on the understanding and enter your plea of not guilty. Or if you prefer you may let' your plea of guilty stand with the understanding that the court will fix the punishment according to the judgment of the court as to what the amount should be. What do you desire to do at this time?
"By Mr. Pryor: I understand that at the time that the defendant entered his plea of guilty that the agreement was that the defendant was to be sentenced to three years’ imprisonment and a fine of double the amount charged to have been embezzled in the information to which he plead guilty. That is the law?
"By the, Court: That was my understanding.
"By Mr. Pryor: At this time the defendant stands on his plea of guilty heretofore entered and does not desire to withdraw the same for the reason that the three papers in-Seminole county, to wit, the Wewoka Capital Democrat, the Seminole County News, Seminole, the Konawa Chief Leader, Konawa, published a • long article in each of them, stating that the defendant had entered his plea of guilty; furthermore, the same facts were published in the Associated Press reports, and especially in the Shawnee daily papers,' having a large circulation in Seminole county; in the Daily Oklahoman, of Oklahoma City, which has a large circulation in Seminole county; also in the Muskogee and Tulsa papers; and in fact all of the large dailies of the state. That as it is the defendant feels that it would be impossible at. this time for him to get a fair and impartial trial before a jury as he could have had before such reports were published. And that the defendant desires now to stand on his agreement and accept the agreement as heretofore stated in the record and' heretofore entered into, and in case the court does not see fit to pass' sentence in accordance with the agreement and feels that greater punishment should be meted out, then we except to the judgment and sentence.
“By Mr. Pryor: Let the record show that the defendant and his counsel, Pryor and Stokes, and the county attorney, L. 0. Gilstrap, appeared before the court at noon of the 1st day of the November term and made a statement that they had reached an agreement upon which the cases should be all dismissed except 2137 on the criminal docket, with the understanding that the defendant should have a sentence of three years, fine double the amount in that information, and stated to the court that they desired to have December 2d set the day for the sentence to be pronounced and the record was made at that time.
“By the Court: On his plea of guilty in ease No. 2137, it is the judgment of the court that the defendant pay a fine of double the amount alleged to have been embezzled in that information and serve a term in the state penitentiary at McAlester for 10'years. You will be remanded to the custody of the sheriff of Seminole county to be by him transported to the state penitentiary at McAlester, Okla.
“By Mr. Pryor: To the judgment and sentence of the court the defendant excepts to the judgment and sentence of the court for the reason that the same is in conflict with the agreement heretofore entered into, and furthermore that the said judgment and sentence of the court is cruel, inhuman, and excessive.
“By the Court: Said appeal is by the court allowed, and for the purpose of superseding this judgment and sentence, bond "'of the defendant is fixed in the sum $10,000, to be approved by the clerk of this court.”

The record shows that such bond was given and approved the same day the judgment was rendered.

The Attorney General has filed motion to affirm as follows:

“No motion was ever made to set aside and vacate said judgment, and the record discloses that the court gave the defendant every opportunity possible to withdraw his plea of guilty and enter a plea of not guilty.
“It is therefore apparent from the record that this appeal was lodged solely for the purpose of delay; that same is without merit, and that there is nothing pending before this' court which would warrant a consideration of any of the matters alleged as error; that the defendant had a fair and impartial trial in which he voluntarily entered his plea of guilty; that he was warned before the rendition of the judgment that the judgment of the court would not be in accordance with the agreement made with the county attorney, and was offered and proffered ample opportunity to withdraw his plea, theretofore entered, and protect himself against the results of the refusal of the court to comply with the request of the county attorney.”

No legal questions are presented by the appeal which call for the intervention of this court.

The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term at which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in operation, is undeniable. ¡This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60.

Under our statute the plea of guilty may be entered in all criminal cases, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law. However, the plea can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea. Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194.

The record affirmatively shows that the plea was entered September 7th, and the court on the 2d day of December offered the defendant leave to withdraw his plea of guilty and substitute a plea of not guilty; that again before rendering judgment the court repeated this offer.

The defendant was represented by able counsel, who it seems did not see fit, after judgment was rendered and sentence pronounced, to file a motion to set aside the same.

Complaint is made that the sentence of the court is cruel, inhuman, and excessive. We are satisfied that there is no merit in this contention. In our opinion the punishment imposed is neither cruel, unusual, nor excessive. The unblushing boldness and prevalence of this crime demands a just, yet rigid application of the law and its penalties.

We find no material error in the record, and the judgment of the trial court is affirmed. Mandate forthwith.

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


text:
    EDWARD FLUKE v. STATE.
    No. A-4153.
    Opinion Filed May 10, 1924.
    Rehearing Denied June 12, 1924.
    (226 Pac. 118.)
    (Syllabus.)
    1. Jury — Jurors Need not be Summoned from Every Part of County — “Body of the County." Our statutes, section 3521, Comp. St. 1921, provide that a special jury venire- should be summoned from the body of the county.
    (a) “Body of the county” means the county at large, as distinguished from any particular place within it; a county considered as a territorial whole. But it is not necessary that the jurors should be summoned from every part of the county.
    2. Jury — Selection of Same Men after Discharge of Panel Improper — Defendant not Entitled to Complain of Irregularity. Section 2665, Comp. St. 1921, in effect provides that a challenge may be taken to the panel where the officer who, summoned the jury was interested or was a material witness in the case. If the sheriff either purposely or inadvertently assembled an unfair panel, which the court discharged for implied bias, the immediate selection of the same men by another officer might in some instances operate to deprive the accused of an impartial jury.
    (a) Despite such irregularity in assembling the second special venire, the defendant in this case cannot consistently complain, since the jurors actually called into the box were from the body of the county, and since he waived his objections by failing to exercise peremptory challenges.
    3. Instruction Criticized. An instruction relating to circumstantial evidence, beginning with the following language, criticized: “Some of the evidence relied upon in this case by the state is what is known as circumstantial; when all of the evidence relied upon is' circumstantial the law is.”
    4. Parties to Offenses — That Other Unknown Persons Probably Participated not Inconsistent with Conviction on Circumstantial Evidence. The fact that other persons unknown probably participated with the defendant in the commission of the crime is not inconsistent with a conviction resting on circumstantial evidence, because all who participated were principals and the circumstances shown were sufficient to sustain the verdict.
    5. Evidence — Testimony that it Would be Impossible for one Man to Place Dead Body on Described Straw Stack Inadmissible. In a homicide case there was no error in refusing to permit the accused to-show by the expert testimony of an undertaker that it would be impossible for one man to place a dead body on a certain described straw stack.
    Appeal from District Court, Craig County; A. C. Brewster, Judge.
    Edward Fluke was convicted of murder, and he appeals.
    Affirmed.'
    C. Caldwell and Hunt & Beauchamp, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Edward Fluke was by information filed in the district court of Craig county on May 2, 1921, charged with the crime of murder. On June 6, 1921, he was . by verdict of a jury found guilty as charged, and on the 16th day of July, 1921, sentenced to serve a life term in the state penitentiary. From this judgment he appeals.

Edward Fluke was a half-blood Cherokee Indian, reared in the country east of Vinita, and was of good parentage and reputation. At the time of the trial he was about 23 years of age. In the fall of 1920 he sold his farming interests to his brother, and thereafter, part of the time, he made his home with his sister in Vinita, and part of the time stayed at his father’s home, located in the country several miles from Vinita. He became acquainted with Harold Frye in Vi-nita, and they became good friends, being frequently in each other’s company. Frye, at the time, was carrying mail between Vinita and Centralia and running a taxi at night.

On the morning of March 26, 1921, Frye failed to appear at his work, and on the 28th of March, when he was still missing, a search was started to find him. It was learned that Frye had taken two young men, named Jenkins and Hilderbrand, who were drinking, to a country dance on the night of the 25th of March; that after they returned Frye and the defendant met a train at 1:48 a. m. and took some girl friends in Frye’s taxi to their rooms in Vinita, then went to a filling station; and that this was the last seen of Frye. The next day the defendant was riding about the streets of Vinita in Frye’s car, and used it that night. He then took it to his father’s home in the country, and on Monday following, March 28th, took it to a garage in Aft-on, where he left it and where it was found by the officers. He came from Afton to Vinita on the train, stayed all night at his sister’s home, and then went to his home in the country the next morning.

Several days later the officers went to his home and found him there. He first said he had not had Frye’s car; then told them where it was and took them to it. He was arrested and placed in jail in Vinita, where he told this story to the sheriff: That on the night of March 25th he wanted to go out home to get some clothes and requested Frye to take him there; Frye told him that he had to take Jenkins and Hilderbrand to a dance and would take him after he came back; that after Frye came back they went in Frye’s car to the Katy depot to meet the 1:48 train; that they met some girls there, took them to their rooms, then went to a garage and got some gasoline, then drove to a cafe in Yinita; there Frye got out of the car, and defendant went out home, got his clothes, and then returned to his sister’s, where he stayed the rest of the night; that Frye was leaving Vinita, and they had agreed to meet in Kansas City at the Union depot the next Monday; that the last he saw of Frye was when he left him at the cafe in Yinita; that it rained on Sunday, and on account of the storm defendant did not go to Kansas City, as arranged with Frye. He made no explanation as to why he did not go to Kansas City to meet Frye later. Parts of this statement of defendant were corroborated by the witnesses for the state, but the state’s evidence indicated that other portions of it were a fabrication.

The search for Frye was renewed, and some days later his body was found in a burned straw stack on the Grove-Afton road, about nine miles east of Vinita and about a mile from the home of the defendant. The straw stack was the straw from a 40-acre field of wheat, and was about 15 feet high, fairly regular in shape, and at least 30 feet in diameter near the bottom. It stood about 200 yards south of the road, in a wheat field, and was burned to the ground. Farmers in that vicinity had seen it burning early in the morning, about daylight, of the 26th of March, but heard no shot or disturbance. The body was in the center of the burned stack, lying on the left side. It was badly burned and decomposed. The body was identified by a number of witnesses as being that of Harold Frye. Some of the clothing was not entirely burned, and some papers in a coat pocket were not totally destroyed. From the clothing and tailoring marks thereon and the papers found the jury were convinced that the body was that of Frye. The left arm of the body was' broken and a 25-caliber bullet was found in the brain, fitting the gun and like the bullets recently purchased by the defendant under an assumed name. The 25-caliber automatic gun so purchased was found in defendant’s mackinaw coat hanging in the kitchen of his sister’s home after defendant had been lodged in jail.

The evidence on the part of the state showed that some of the statements of defendant to the sheriff concerning his movements and associations with Frye on the fateful night were true; but his explanation of the possession of the car and his purchase, ownership, and disposition of the gun was unsatisfactory.

Several witnesses who knew defendant testified that he was a young man of good reputation. The evidence sustaining the conviction was wholly circumstantial. Proof of the identity of the body of deceased and the manner of the killing was circumstantial. Defendant’s explanation to the sheriff of his possession of Frye’s car, standing alone, might be true and consistent with his innocence; but, when considered along with the many other unrefuted circumstances, the whole constituted a convincing and consistent chain of circumstances indicative of guilt, so that the jury were justified in concluding that this explanation was in part fabricated. The fact that the body of Frye was placed upon the top of a straw stack 30 feet in diameter and 15 feet high, with its sides near the base perpendicular, thence sloping towards the apex — so that one man, unassisted, could not have so placed a dead body — indicated that • the accused, if guilty, must have been assisted by others; but the fact that others unknown were probably implicated in the commission of the offense did not weaken the force of the evidence pointing to defendant’s guilt.

On the whole, the numerous facts constituting the chain of circumstances were remarkably consistent with each other and inconsistent with the innocence of the accused and of such convincing character as to be of equal force to prove guilt as direct evidence.

Defendant claims that the evidence is insufficient to sustain the verdict; that the record is full of prejudicial errors; and that he did not have a fair and impartial trial.

The record is voluminous, containing more than 1,100 typewritten pages. The petition in error sets forth 54 assignments of error, but only such of these as are deemed essential to a proper disposition of the appeal will be treated in this opinion.

The mystery surrounding this murder and its gruesome details had a natural tendency to arouse the ire and passions of the community, so as to make it difficult to procure an unbiased jury. In doing this the regular panel in attendance was exhausted, and it became apparent that to complete the jury other prospective jurors would have to be summoned. Accordingly, the court ordered the sheriff to summon a special venire of 30 jurors from the body of the county to serve as jurors in this ease. It is claimed by defendant that the 33 jurors summoned by the sheriff, pursuant to this order of the court, all, or nearly all, resided in and near Vinit'a.

When the court’s attention was called to the fact that the sheriff was an important and material witness for the state, the special panel which he had summoned upon order of the court was discharged. Thereupon a bystander, A. C. Peace, was commissioned and sworn as a special officer to summon special jurors in lieu of those just discharged. This special officer then resummoned nine of the men that had just been discharged, together with others not known to the defendant. Defendant then asked that this second special panel be discharged for the reason that the panel was largely-composed of those illegally assembled to serve in the first special panel, asserting that the special officer was biased and knew that several of the jurors summoned by him had been previously selected by the sheriff and discharged by the court, and that the men last summoned “all lived within the city of Vinita, and that there is considerable prejudice and feeling against this defendant in said city,” and that on that account the jurors so selected could not render an impartial verdict.

Upon this motion proof was heard, in which the special officer admitted that he knew at the time of service that some of the jurors had been assembled and discharged, as before related. There was no denial that these jurors were summoned in Vinita and no testimony offered as to the residence of the persons summoned. From other parts of the record it appears that most of them resided in Vinita. The court found that this special officer was without bias, and that the panel last summoned was regular. Thereafter the parties were ordered to complete the selection of jurors from among those last summoned, which was accordingly done. Other portions of the record show that the defendant did not exercise all of his peremptory challenges, and that he challenged none of those who were adjudged qualified on the special venire.

The court committed no error in refusing to direct the officer to summon persons whose names were on the regular jury list. Our statutes, section 3521, Comp. Stat. 1921, provide for a special jury panel under circumstances such as these. Under such exigencies, this statute makes an exception to the general rule, permitting the summoning of a special panel of persons whose names might not be found on the regular jury list. This is for the purpose of expediting the trial in progress, but this statutory exception also provides that the jurors are to be selected “from the body of the county.”

“Body of the county” means the county at large, as distinguished from any particular place within it; a county considered as a territorial whole. Black’s Law Dict. (2d Ed.) 141; Cyclopedic Law Dict. (2d Ed.) 113; City of Chicago v. Knobel, 232 Ill. 112, 83 N. E. 459. Anderson’s. Law Dictionary, pp. 217, 271, defines the term “body of the county” as the territorial limits of a county; the people of a county collectively considered; the “body of a county” is its territorial entirety, as distinguished from a portion of the territory. The term “body of the county,” in an Iowa statute providing that where the persons summoned to serve as jurors fail to appear, or where the court decides that they have been illegally called or drawn, the court may set aside the precept under which they were summoned and cause a precept to be issued to summon a sufficient number from the body of the county, means from the county at large, but not necessarily that the jurors should be summoned from every township in the county. I Words & Phrases, First Series, 819; State v. Arthur, 39 Iowa, 631; State v. Bolln, 10 Wyo. 439, 70 Pac. 1. The term “body of the county” is a generic term applied to the representation of the citizens of the vicinage embodied in the list of qualified jurors selected by officers appointed by law; it does not require absolutely perfect representation of the entire county. People v. Dunn, 31 App. Div. 139, 52 N. Y. Supp. 968.

Manifestly, a defendant on trial for his life in a prosecution predicated on evidence purely circumstantial, in a community where the passions of the people have been aroused by the atrocity of the crime charged, has a right to all the statutory safeguards designed to secure an impartial jury. Under such circumstances, both the letter and the spirit of the law providing safeguards against unfairness should be followed. This jury was not- selected from the “body of the county,” as contemplated by statute. We do not mean to hold that a “pick-up” jury selected from among the" residents of the county seat would be unfair in every case, but believe- that under the circumstances here a selection of a special panel in the manner shown by the record would ordinarily be unfair to the defendant. In this instance it proved harmless, as will later appear.

Section 2665, Comp. Stat. 1921, in effect provides that a challenge may be taken to the panel where the officer who selected them was interested or was a material witness in the case. The law-makers did not contemplate that because the sheriff was a material witness he would consciously or unconsciously make an unfair selection, but they did make the provision to guard against a possible “hand-picked” jury. This possibility was still present when a disqualified sheriff, had selected and assembled a -jury panel, which was by the court discharged, and then a special officer, however impartial, immediately selected many of the same men on a second , panel. If the sheriff purposely or inadvertently assembled an unfair panel, the selection of the same men by another officer would in some instances operate to defendant’s hurt.

This holding is not in conflict with the declarations of thé court in the ease of Hisaw v. State, 13 Okla. Cr. 484, 165 Pac. 636. In the Hisaw Case it was held that after a challenge to a special panel had been sustained, the fact that some of the persons so summoned and discharged were summoned on a second venire by an unbiased officer is no ground for challenge to the second panel. The Hisaw Case differs from the case here in that the special officer was selected by agreement of parties and was instructed by the court in what manner he should select the jurors; and the persons he selected in town were for the most part farmers who lived in various parts of the county and whom he met upon the streets and around the court house; in addition to these, he went out over the county and summoned twelve more qualified men. The special officer in that case had no knowledge that any of the persons he summoned had been previously summoned and discharged.

After the special venire had qualified both the state and the defendant rapidly waived their remaining peremptory challenges, and but three jurors were selected from this special venire, two of whom resided in distant parts of the county. None of these were challenged peremptorily, so it appears that despite the irregularity in qualifying the special venire, the defendant cannot consistently complain because he waived such right by failing to exercise his peremptory challenges as against every juror so selected.

The defendant strenuously urges that the introductory paragraph of instruction No. 6 given by the court is a misstatement of law and fact, to his prejudice. This instruction related to circumstantial evidence, and the part complained of is as follows:

“Some of the evidence relied upon in this case by the state is what is known as circumstantial; when all of the evidence relied upon is circumstantial the law is,” etc.

Defendant says that this is misleading,’ being in effect a finding of fact by the court that some of the material facts indicative of the guilt of defendant were proved by direct evidence, and that therefore the jury would be justified in disregarding the rest of the instruction which correctly stated the law relating to circumstantial evidence, for the reason that the court in effect stated that the rule relating to circumstantial evidence need not apply where only some of the evidence was circumstantial.

We think there is some foundation for criticism of this instruction. However, the jury heard the testimony and without question knew that all of the vital parts of the testimony pointing toward the guilt of the defendant were circumstantial. True, evidence as to the circumstances was direct, but there was no witness who claimed to have seen any part of the tragedy; there was none who heard any shooting or other noise connected with it; all the evidence of the killing was in the common acceptation of the term purely circumstantial. The jury must have known that no instruction upon circumstantial evidence would be necessary or would be given by the court unless the evidence warranted such an instruction. The circumstances indicative of guilt, tested by the rule stated in this instruction, were so numerous and convincing that the jury were justified in bringing in the verdict as recorded. While it appears that other unknown persons probably participated in the commission of the crime, the conclusion is irresistible that the defendant was implicated in the crime and was therefore a principal.

There was no error in the exclusion of proffered expert testimony by an undertaker tending to show that it would be impossible for one man to place a idead body on this straw stack. An opinion of an undertaker on that point would be of no greater probative value than that of a farmer testifying concerning a bag of wheat or any other heavy inert substance. As to this class of so-called “expert testimony” see 22 Corpus Juris, Opinion Evidence.

We have examined the various objections to the introduction of alleged incompetent testimony and the exclusion of other testimony offered by the defendant. It would prolong this opinion to too great length to analyze the various parts of the evidence said to have been erroneously admitted or excluded. It is sufficient to say that none of these alleged errors are of sufficient importance to disturb the verdict.

The judgment of the trial court is therefore affirmed.

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


text:
    E. J. SELLERS et al. v. STATE.
    No. A-4714.
    Opinion Filed Feb. 26, 1924.
    Rehearing Denied June 12, 1924.
    (226 Pac. 109.)
    (Syllabus.)
    1. Indictment and Information — Permission to Amend Information after Sustaining Demurrer Held Equivalent to Ordering New or Amended Information. Where a demurrer to an information is allowed, but no formal judgment is rendered setting the information aside and permission is given the county attorney to amend it at that time, such permission will be deemed equivalent to an order directing the county attorney to file a new information as amended, or an amended information, as the case may be.
    2. Same-Where Amendment to Information Matter of Form, Second Preliminary Hearing not Required. Where an amendment to the original information is in matter of form only a second preliminary hearing will not be required as a foundation supporting the new or amended information.
    3. New Trial — Requisites of Motion for New Trial for Newly Discovered Evidence. A motion for a new trial, predicated on newly discovered evidence, must show that the new evidence is not merely cumulative, or for the purpose of impeachment; or that the newly discovered evidence would probably change the verdict in another trial.

      4. Same — Discretion in Denying New Trial for Newly Discovered Evidence Not Disturbed. Where newly discovered evidence materially conflicts with the evidence of the defendants at the trial, and relates to a circumstance that may or may not be indicative of the innocence of the persons convicted, the trial court’s discretion in denying a new trial will not be disturbed.
    5. Robbery — Evidence as to Identity of Defendants Held Sufficient. Evidence upon the question of the identity of the persons implicated in the robbery examined, and held sufficient.
    Appeal from District Court, Comanche County; A. S. Wells, Judge.
    E. J. Sellers and another were convicted of robbery, and they appeal.
    Affirmed.
    C. R. Reeves, for plaintiffs in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

In this case there were originally three defendants, Sellers, Sevier, and M. E. Dollar, charged with conjoint robbery. Sellers and Sevier were by a verdict of a jury, rendered December 22, 1922, found guilty as charged, and their punishment was assessed at imprisonment in the penitentiary for a period of 14 years. Defendant Dollar took a severance, and the record in this case does not show the outcome of his trial.

The original information filed by the county attorney was attacked by demurrer because it did not state that the money taken was “good and lawful money of the United States, of the value of $120.” The court sustained the demurrer on this ground, and gave the county attorney permission to amend' the' information by inserting the words quoted. We think the original information was good. Under our modern practice of stating a cause of action in ordinary language, words and figures denoting dollars and cents will be construed to mean good United States money, without a specific declaration to that effect. It could not be taken to mean counterfeit dollars or German marks, or any other kind of money. The error in sustaining this demurrer, however, was an error in favor of defendant, invited by him, of which he cannot now complain.

Moreover, permission given at the time the demurrer was sustained to amend by interlineation was equivalent to ordering a new information. We come to this conclusion by construing together sections 2512 and 2612, Comp. Stats. 1921.

Section 2512, Comp. Stats. 1921, is as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. ’ ’

Section 2612, idem, is as follows:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

A trial court has plenary power over its orders and judgments during the term. An order sustaining a demurrer and a final judgment predicated on that order in a criminal case may be two separate judicial acts. Of course, a judicial finding, specific and final, setting aside an information makes it a nullity, not susceptible of amendment; but where no formal judgment is rendered setting it aside, and on the other hand permission is given the county attorney to amend it, such permission will be deemed equivalent to an order directing the county attorney to file a new information as amended, or an amended information, as the case may be, Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18; State v. Bilbao (Idaho) 213 Pac. 1026.

Where, as here, the amendment is immaterial, a second preliminary hearing will not be required as a foundation supporting the new information. If the preliminary hearing had was sufficient foundation for the first information, it was equally adequate for the second, both being in effect the same. The purpose of a preliminary hearing is to ascertain whether a crime has been committed, and, if so, the nature of the accusation to be made, and if there is probable cause to believe the accused committed the crime, and such probable cause is shown to give the accused advance notice of its character, to enable him to prepare for trial before a jury. Where the preliminary hearing already had meets these requirements as to a second information, or an amended information, the state will not be required to do a useless thing in holding a second preliminary trial duplicating the first. Filler v. State, 23 Okla. Cr. 282, 214 Pac. 568; White v. State, 23 Okla. Cr. 198, 214 Pac. 202; Tipton v. State, 23 Okla. Cr. 86, 212 Pac. 612.

In order to make clear the questions involved in this appeal we find it necessary to make a condensed statement of all the material testimony introduced.

The testimony of David Bressman, the prosecuting witness, shows that he and his wife were conducting a small store in connection with a gasoline filling station iy2 miles north of Lawton. On the morning of August 4, 1922, two men came walking along the highway, entered the store and purchased a lunch; one of these men was tall and slim, the other shorter and heavier. They asked Mrs. Bressman for water and towels and, after washing, ate their lunch from the counter. While they were eating the agent for a candy company came in to collect, and Bressman told him that the candy he had purchased was not satisfactory .and handed a piece of it to the taller of the two men, who broke it into pieces. Bress-man then went to the rear of the store and got his purse containing five $20 bills and some other money and paid the candy man in the presence of these two men, and in their presence put the purse in the money drawer under the counter. Bressman then went out of the store, followed by these two men, who rode away towards town with the driver of a soft drink truck.

That same evening, at about 8 o’clock, these two men again came walking along the highway and went into the store where Mrs. Bressman was, where, they began inquiring the price of various edibles, and finally purchased and ate some refreshments. Thirty minutes later Dollar drove up in a Dodge touring car and said he wanted to get some water for his car. At this time the slim man was standing outside the store, picking his teeth, and Bressman was also outside, sitting on a box. Dollar asked Bressman if he kept a certain kind of chewing tobacco, and, when he said he did, Dollar told him to hurry in and get him some. As Bressman went into the store the slim man followed him in, and when he got inside the shorter man held a pistol on Bressman and told him to get that black purse he had that morning. The slim man was standing close to Mrs. Bressman at this time. On account of the threats and intimidation the purse was delivered to the shorter man, and both retreated to where Dollar was with the Dodge car. There they ordered Dollar to “stick them up” and to get into the car and drive away; both of them got in with him and the car moved rapidly away and out of sight down the highway.

From the actions of all three men, the Bressmans suspected that Dollar was a confederate, and that the threats against* Dollar were a pretense only. Immediately after the robbery Bressman notified the sheriff, Mr. Frampton. Later, in Lawton, in the presence of the sheriff, Bressman identified both Sellers and Sevier as the men who had robbed him. In the room occupied by one of the defendants the sheriff found a small pistol fitting the description of the one used in the robbery.

Carrie Bressman, the wife, also identified the defendants Sellers and Sevier as the men who had been at the store in the morning and who returned that night and robbed them. On both occasions the two men were in the store for a period of about 30 minutes, and she had good opportunity to observe their appearance and actions.

The sheriff testified that the identification made by Mr. and Mrs. Bressman was positive. After placing these two defendants in jail, the sheriff and Bressman returned to the filling station, where Dollar later appeared and was placed under arrest.

The defense of Sellers and Sevier was an alibi, that it was a case of mistaken identity, and that the robbery was in fact committed by • Dollar and two men named MeSweeden and John Balch. Sevier took the stand in his own behalf and in defense of his codefendant Sellers; Sellers did not testify.

Mr. Osmund, a piano' dealer, M. S. Hamilton, proprietor of the Southern Hotel, Mr. Swain, a guest at the Willard Rooms, and Lillian Barker, a waitress at a cafe, all testified that they saw these two defendants in Lawton at various times between 5 and 7:30 p. m. on August 4th. John Kershaw, a soldier, D. Docas, a soldier, Roger Jackson, a farmer, Mr. Wallace, a farmer, Bill Abrams, no occupation, Sam Kirk, taxi driver, Grover Burk, barber, Dewey Adkins, soldier, Dr. C. P. Hess, Mr. De Lehanty, transient, M. P. Harrington, baseball umpire, all testified that they saw the defendants or one of them in Lawton at various times from 8 to 9:30 o ’clock p. m. August 4th.

Grover Burk, a barber, said that at first Bressman identified him as being one of the robbers, and that he also identified Cliff Cox as the other, but later retracted as to Cox. Cox testified that Bressman said Sevier was not the man implicated with Sellers and then accused Cox, but later retracted. Cox was also an ex-convict.

Joseph Cox testified that he saw a man driving a Dodge car on the night of August 4th, at a terrific rate of speed, in the direction taken by Dollar’s car after the robbery; that there was a man on each running board, but that neither of these men was Sevier or Sellers. Mr. Robberson testified that he came to Bressman’s store immediately after the robbery, and that Bressman told him that he did not know who it was that did the robbing.

Sevier testified that he and Sellers were in Lawton all of the late afternoon and evening of August 4th; that Bress-man identified several others besides him as being implicated in the robbery; said that Bressman came with the sheriff to Seller’s place and “identified everybody near”; that he said it was Shorty Burk — then said that Cox looked like one of them; that he never identified Sevier positively until the preliminary trial; that Mrs. Bressman did not identify him; that when she looked at Sevier she looked at her husband and shook her head, indicating that she did not think he was one of the robbers.

M. E. Dollar testified: That on the evening of August 4th he left the military post in a Dodge ear, about 30 minutes before sundown, to go to Lawton. -That when he arrived at the rock quarry he picked up Johnnie Baleh and McSweeden. .That when about 200 yards from Bressman’s store he stopped to fix one of his tires which had blown out. Baleh said, “If I had some money we would go up to the store and get something to eat.” Dollar gave him 70 cents, and Baleh and McSweeden walked on to the store, while Dollar spent about 30 minutes mending his tire. That he then drove on up to the Bressman store. That Bressman was sitting outside the store, and Baleh and McSweeden were in the store with Mrs. Bressman. That he was in a hurry and asked Bressman if he would go in the store and get him some tobacco while he put some water in his radiator. When Bressman went in Baleh and McSweeden robbed Bressman and his wife, and as they retreated from the store Baleh drew his pistol on Dollar and made him hold up his hands, then ordered him to get into the car and drive them away. Dollar started the ear and Baleh and McSweeden got on the running boards, one on each side, and together they rapidly drove away. Dollar testified: That as they drove the two men also robbed him, taking $110 from him. That after they drove several miles they stopped, and Baleh and McSweeden walked off through the fields. Dollar then returned to Bressman’s filling station, where he was arrested by the sheriff on the suggestion of Bressman as being implicated in the robbery. When arrested, Dollar made no explanation relative to the identity of his companions. After it was apparent that Dollar was implicated and that he could not escape responsibility he contended his confederates were Baleh and McSweeden, and not Sellers and Sevier.

As throwing light upon this testimony, the state in rebuttal sought to show by the father of Baleh that Baleh on August 4th was in jail in Amarillo, Tex. In a motion for a new trial, on the ground of newly discovered evidence, a showing was made that Balch was not in jail at Amarillo on that date, supported by the affidavits of the district attorney, the jailer, and others there.

This motion for a new trial was also supported by an affidavit of Dollar in which he repudiated that portion of his testimony relating to his having been robbed by Balch and McSweeden, and stated in substance that he, McSweeden, and Balch were and had been partners in crime; that the Dodge car in which they fled from the scene of the robbery belonged to them jointly; that the car was purchased from the Turben-Lewis Motor Company, the purchase price being represented by their joint notes secured by a mortgage. This part of the affidavit was corroborated by an affidavit of Mr. Turben and the chattel mortgage records, and a showing that after the seizure of this car by the sheriff it was returned to this motor company under the terms of the mortgage: Dollar’s affidavit shows that some of these facts were probably communicated to Sellers in writing by Dollar while both were in jail, a short time before the trial. We assume that Sellers received these written communications some time before the trial, although that fact is not affirmatively shown.

In rebuttal, Mr. and Mrs. Bressman testified that they were certain it was Sellers and Sevier who robbed them and not Balch and McSweeden, as stated by Dollar.

The motion for a new trial was overruled. Counsel for Sellers and Sevier urges that on the showing made this was manifest error.

It frequently happens that where one of several partners in crime is apprehended in such a way as to make his escape impossible he will make a confession absolving his confederates from all blame. Often such confessions are entitled to little or no credence. In this case a self-confessed robber, having testified at the trial that he had nothing to do with the robbery of the Bressmans and that he himself was robbed by the thieves, made an affidavit that he, Balch. and McSweeden were partners in this and other crimes, and that he received some of the money taken from the Bress-mans. Alleged newly discovered evidence coming from such a source and under such circumstances is entitled to little credence.

It is argued that Dollar’s last statement was verified by the people who sold him the automobile. So far as the ownership of the car is concerned, that is true, but even so Dollar may have been aiding Sellers and Sevier in perpetrating this robbery. It does not necessarily follow that because he was criminally implicated with Balch and McSweeden in other crimes, and because they owned the automobile jointly, that he had no criminal connection with Sellers and Sevier.

A motion for a new trial, predicated on newly discovered evidence, must show that the new evidence is not merely cumulative, or for the purpose of impeachment; or that the newly discovered evidence would probably, change the verdict in another trial. The new evidence sought to be shown here was for the purpose of impeaching the father of Balch, who had testified that his son was in the Amarillo jail on August 4th, and to show that Dollar, Balch, and McSweeden were joint owners of this Dodge car and might be partners in other crimes.

A defendant cannot as a matter of right claim a new trial on the ground of newly discovered evidence. The granting of such new trial rests in the sound discretion of the trial court, and where, as in this case, such evidence is in direct conflict with the evidence given for the defendant on the trial and is sought for purposes of impeachment, and has no direct tendency to show the identity of the robbers, we cannot say that the trial court abused his discretion in refusing a new trial. Noel v. State, 14 Okla. Or. 548, 174 Pac. 293; Douthitt v. Territory, 7 Okla. 55, 54 Pac. 312.

If Baleh or McSweeden was indeed in or about Lawton on the 4th of August, the defendants in all probability by due diligence could have so shown by eyewitnesses who saw them or either of them. No such diligence was shown. Defendants asked for a new trial in order to get evidence from Amarillo, Tex., to prove a negative fact; that is, that Baleh was not there in jail on August 4th — a showing that as a fact in evidence or for impeachment purposes would not directly affect the issues. Where newly discovered evidence is remote or speculative, the court will be justified in denying a'new trial.

Possibly the Bressmans were mistaken in identifying these two defendants, Sellers and Sevier, but that is scarcely probable. They both had ample opportunity to calmly observe the men who committed the robbery, on two different occasions, in the daytime, each time during an interval of about 30 minutes. Under such circumstances this court would not be justified in holding that the evidence was insufficient.

It would serve no good purpose to prolong this opinion by separately treating all the defendants’ assignments of error. We have examined the instructions to the jury, the instructions refused, the alleged competent evidence excluded, the alleged incompetent evidence admitted, and the alleged misconduct of the trial court, and find no prejudicial error in any of these matters.

The judgment of the trial court is affirmed.

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


text:
    DAN VANDIVER v. STATE.
    No. A-4260.
    Opinion Filed June 14, 1924.
    (226 Pac. 1118.)
    Appeal from District Court, McCurtain County; G. M. Barrett, Judge.
    Dan Vandiver was convicted of second degree burglary, and he appeals.
    Affirmed.
    C. E. MePherren and W. S. Paden, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Dan Vandiver was on September 16, 1921, in the district court of McCurtain county, convicted of burglary in the second degree, with his punishment fixed at imprisonment in the penitentiary for a term of five years. This appeal was regularly submitted on June 2, 1923, and at the request of plaintiff in error time was allowed by this court to file briefs. The several periods of time so allowed having long since lapsed, under the rules of- this court the judgment below should be affirmed. The record discloses that the accused was accorded a fair trial, and that the evidence adduced warranted the jury in arriving at the verdict rendered. The judgment of the trial court is affirmed.

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