text:
    PERCY BELCHER v. STATE.
    No. A-1834.
    Opinion Filed March 15, 1913.
    (130 Pac. 515.)
    1. APPEAL — Escape of Appellant — Dismissal. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered' in the case. And where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, the appeal will be dismissed.
    2. CONSTITUTIONAL LAW — Due Process of Law — Dismissal of Appeal. The dismissal of an appeal, taken from a judgment of conviction because the defendant is a fugitive from justice, is not a denial of due process of law, and, where the fugitive is brought again within the custody of the court, a refusal of the court to set aside its order of dismissal and reopen the case does not constitute a denial of due process of law within the meaning of the United States Constitution or the Constitution of the state of Oklahoma.
    (Syllabus by the Court..)

      Appeal from District Court, Jackson County . Frank Mathews, Judge.

    Percy Belcher was convicted of crime and appeals.
    Dismissed.

      8. B. Garrett and 8. J. Castleman, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and M. L. Hankins, County Atty. {W, C. Austin, of counsel), for the State.
   DOYLE, J.

The plaintiff in error was convicted in the district court of Jackson county of the crime of rape in the first degree, alleged to have been committed on one Julia S. Johnson, and was sentenced to be imprisoned in the state reformatory at Granite for a term of five years. The judgment and sentence was entered on April 25, 1912. To reverse the judgment an appeal was perfected by filing in this court September 17, 1912, a petition in error with case-made.

A motion to dismiss tbe appeal bas been filed, which, omitting the formal parts, reads as follows:

“Comes now Charles West, Attorney General of the state of Oklahoma, M. L. Hankins, county attorney of Jackson county, Oída., and W. C. Austin of counsel for the state of Oklahoma, and informs and gives the court to understand that the plaintiff in error, Percy Belcher, soon after his conviction and sentence in the district court of Jackson county, from which this appeal originated, made and executed a bond for appeal in this cause conditioned, among other things, that he .would not leave the state without leave of court; that after the execution of said bond and pending the perfection of the record for the appeal, without leave of court and without the knowledge or consent of the officers of the 'state of Oklahoma, voluntarily left the state of Oklahoma and established a residence in the county of Hardeman, state of Texas, and while there, he, the said Percy Belcher, murdered his father, W. B., Belcher, on, to wit, about the 31st day of May, 1912, and thereafter, for the purpose of escaping from and of avoiding arrest by the authorities of the state. of Texas, came into the state of Oklahoma and took up a temporary residence in the state of Oklahoma at Oklahoma City, appearing under assumed names of Pendergraft and W. M. Clark, and while in Oklahoma City, Frank Walker, the duly elected, qualified, and acting sheriff of Hardeman county, Tex., acting under a warrant issued by the proper court in the state of Texas in an action wherein the state of Texas prosecuted the said Percy Belcher for murder as aforesaid, effected the arrest of Percy Belcher, that thereafter the said Percy Belcher waiving requisition returned with the said Frank Walker as such sheriff to the state of Texas, to answer the charge of murder as aforesaid; that ever since said time and at the present time the said Percy Belcher was and is lodged in. the county jail at Quanah, Tex. And your informants further say that by reason of these matters the said Percy Belcher is a fugitive from justice; that he has voluntarily placed himself beyond the reach of the writs of this court or the inferior court, and has therefore forfeited his right to have this appeal considered and the same ought to be dismissed. And in support of1 these allegations the state attaches hereto the affidavits of M. L. Hankins, county attorney of Jackson county, Okla., Frank Walker, sheriff of Hardeman county, Tex., and a certified copy of the indictment returned against said Percy Belcher in Hardeman county, Tex., on the 25th day of October, 1912, charging said crime of murder, also a certified copy of the appeal bond in this case and makes each of said affidavits a part of this motion by reference, and also said copies of indictment and appeal bond. Wherefore, the state of Oklahoma, through its Attorney General and the other attorneys herein mentioned, prays that an order be made dismissing this appeal and directing that the original judgment of conviction and sentence of - imprisonment be executed.”

In reply to this, three affidavits were filed, including that of the plaintiff in error, wherein he states, at the time of his conviction he was a minor 18 years of age; that when his appeal bond was approved he went to Texas with his parents; that when he was arrested June 9, 1912, in Oklahoma City, on the charge of murder, for which he is now held in the state of Texas, he agreed to waive extradition and go back to Texas, if the Texas sheriff would go over the Frisco Railroad from Oklahoma City through Altus, Jackson county, and there permit his sureties to surrender him to the sheriff of Jackson county; that, after making said agreement, said sheriff, without his consent, and without an extradition warrant, took him by Ft. Worth, and on to Quanah, Tex., and did. not bring him into and through said Jackson county as he had agreed to do; that he is not now at this time out of the state of Oklahoma with his own consent; and that his present detention outside of the state of Oklahoma is without his consent, and is not voluntary upon his part. In his affidavit he does not deny that he was living at Oklahoma City under an assumed name, nor that he was a fugitive from justice from the state of Texas at the time of his arrest in Oklahoma City. It is now more than nine months since plaintiff in error was taken to Texas, and he has not yet returned to Oklahoma.

On the undisputed facts we think this case comes within the following rule declared by this court in numerous decisions.

The Criminal Court of Appeals will not consider an appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the ease, and, where the defendant makes his escape from the custody of the law and is at large as a fugitive from justice, this court will on motion dismiss the appeal. Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921; Tanner v. State, 5 Okla. Cr. 298, 114 Pac. 360; McGraw v. State, 7 Okla. Or. 105, 122 Pac. 242. Under the provisions of Procedure Criminal (section 6945, Comp. Laws 1909, Rev. Laws, 5988), an appeal may be taken by the defendant, as a matter of right, from any judgment against him; and there is no express provision authorizing the dismissal of an appeal on the grounds stated; yet we think that it is no part of our duty as an appellant court to consider or review the judgments, orders, and rulings of which a plaintiff in error complains, while he is at large as a fugitive from justice.

In People v. Genet, 59 N. Y. 80, 17 Am. Rep. 315, it was said: . *

“The provisions of the statutes, giving to defendants in criminal cases the right to make a bill of exceptions, are not so absolute as to displace all the other principles which belong to criminal proceedings, but must be taken in subordination to them. We think they do not require the court to encourage escapes and facilitate the evasion of the justice of the state, by extending to escaped convicts the means of reviewing their convictions.” •

State v. Scott, 70 Kan. 692, 79 Pac. 126, 3 Ann. Cas. 511. Also, State v. Keebler, 145 N. C. 560, 59 S. E. 872, 13 Ann. Cas. 496.

In the case of Allen v. Georgia, 166 U. S. 138, 17 Sup. Ct. 525, 41 L. Ed. 949, the defendant had been convicted and sentenced to death in a superior court, and had sued out a writ of- error from the Supreme Court of the state of Georgia, which was assigned for hearing. The case having been called, it was made to appear to the court by affidavits that the defendant after his conviction and sentence, had escaped and was a fugitive from justice. From this showing the Supreme Court of Georgia ordered that the writ of error be dismissed. After-wards the defendant, having been recaptured, was resentenced to death by the superior court, and thereupon made application to one of the Justices of the Supreme Court of the United States for writ of error, which was duly granted, assigning as-error that the dismissing of his writ of error by the Supreme Court of the state of Georgia was. a denial of due process of law. The Supreme Court of the United States held that the dismissal by a state court of a writ of error taken by the accused from a conviction, because he has escaped and is a fugitive from justice, is not a denial of due process of law, and, where the fugitive is brought again within the custody of the court, a refusal of the court to set aside its order of dismissal and reopen the ease does not constitute a denial of due process of law, within the meaning of the federal Constitution.

In this ease it appears that about a month after the judgment of conviction was rendered, and more than three months before his appeal was perfected in this court, he became a fugitive from justice from the state of Texas.

It is our opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

ARMSTRONG, P. J., and FURMAN, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    DAVIS MILLER v. STATE.
    No. A-1419.
    Opinion Filed March 18, 1913.
    (130 Pac. 813.)
    1. HOMICIDE — Defenses—Intoxication. A request for an instruction, to the effect that the defendant should be acquitted if the jury-should believe from the evidence that at the time the fatal blow was struck the defendant was too drunk to form a criminal intent, was rightly refused.
    2. TRIAL — Instructions. Where the instructions requested, so far as legal and pertinent, were fully and fairly covered by the instructions .given, the instructions requested were rightly refused.
    3. TRIAL — Taking Indictment to Jury. Room. A judgment will not be reversed because the jury were permitted to take to the jury room the indictment with the verdict of guilty, rendered at a former trial, indorsed thereon, where the attention of the court wa$ not called to the fact until the jury, returned their verdict, and where the affidavits of five jurors are to the effect that they did not see the verdict of the former trial on the indictment, and that this fact was not mentioned in the jury room during their deliberations, and that, so far as affiants know, no member of the jury noticed the verdict, or knew anything about it.
    4. WORDS AND PHRASES — “Willfully.” The word “willfully” is synonymous with “intentionally,” “designedly,” “without lawful excuse” — that is, not “accidentally.”
    (Syllabus by the Court..)

      Appeal from District Court, Le Flore County; Malcolm F. Rosser, Judge.

    Davis Miller was convicted of manslaughter, and appeals.
    Affirmed.

      C. F. Dudley, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   DOYLE, J.

The plaintiff in error was indicted in the Dnited States Court in the Indian Territory for the Central District, at Antlers, for the murder of Sam Wright on August 18, 1906.

The case was pending in said court at the time of the admission of Oklahoma as a state, and was transferred by operation of law to the district court of Pushmataha county. His trial was there -had, which resulted in a conviction of manslaughter, and the judgment was appealed to this court and reversed and remanded. Miller v. State, 3 Okla. Cr. 575, 107 Pac. 948.

When the ease was again called for trial, a motion for a change of venue was made, and the same was granted and the case transferred to the district court of Le Flore county. The trial resulted in a verdict and conviction of manslaughter. April 14, 1911, in accordance with the verdict, the defendant was sentenced to be imprisoned in the state penitentiary for a term of 3 1-2 years, and to pay a fine of $300. An appeal was perfected by filing in this court, October 7, 1911, a petition in error with case-made.

Three alleged errors are relied upon as grounds for a reversal of the judgment of conviction. The first two are that the court erred in refusing to give two requested instructions, which read as follows:

“Gentlemen of the jury, if you find from the evidence that the defendant, Davis Miller, unlawfully and willfully, but without malice, struck the blow or blows which caused the death of the deceased, or, though he did not strike the fatal blow or blows himself, was present aiding and abetting the person or persons who did strike the fatal blow or blows, it will be your duty to convict of manslaughter, unless you should believe from the evidence that at the time the blow or blows were struck which resulted in the death of the deceased the defendant was in a state of intoxication, and was too drunk to form a criminal intent.”
“Gentlemen of the jury, I have instructed you; every person who unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, or otherwise injures, another, of which striking, stabbing, wounding, shooting or other injury such other person dies, is guilty of manslaughter, and in this connection I charge you that the word ‘wilfully’ means not merely voluntarily, but with bad intent.”

Upon this phase of the ease the court instructed the jury as follows:

“(4) Every person who unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, or otherwise injures, another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, is guilty of the crime of manslaughter.
"(5) The term ‘willfully’ means intentionally, designedly, or without lawful excuse. To make a person guilty of manslaughter, he must have willfully done the act which results in death, but it is not necessary that he should have intended to kill. If he willfully did the act which caused the death, a defendant would be guilty of manslaughter, whether he intended to kill or not.
“(6) Now, in this case, if you find from the evidence, beyond a reasonable doubt, that the defendant, Davis Miller, in what is now Pushmataha county and state of Oklahoma, at any time within three years next before the finding of the indictment in this case, unlawfully and willfully struck, wounded, or otherwise injured Sam Wright, from the effects of which striking, wounding, or injuring Sam Wright died, it will be your duty to convict the defendant of manslaughter.”

It will be noted that the court followed the federal statutes in defining manslaughter, and the only complaint is that the court should have added these words:

“Unless you should believe from the evidence that at the time the blow or blows were struck which resulted in the death of the deceased the defendant was in a state of intoxication, and was too drunk to form a criminal intent.”

At most, a state of intoxication rendering the defendant incapable of forming a criminal intent would only reduce murder to manslaughter.

In Wharton on Homicide (3d Ed.) p. 809, it is said:

“Homicide committed when the accused was so intoxicated that no intent to commit the crime of murder could have existed, however, not being murder in the first degree, is either manslaughter or murder in the second degree. ' Intoxication cannot operate as an entire exemption from criminal responsibility, and it is not conclusive against the existence of criminal intent. At the utmost it only extenuates the crime from murder to manslaughter, and it does not do this as a matter of law.”

In Tucker v. United States, 151 U. S. 164, 14 Sup. Ct. 299, 38 L. Ed. 112, the Supreme Court of the United States, in speaking of the action of the trial court in refusing' requested instructions, said:

“This instruction was refused, because it had been covered by the instructions given. In those instructions the jury were distinctly told that if the defendant, at the time of the killing, although not insane, was in such a condition of mind, by reason of drunkenness, as to be incapable of forming a specific intent to kill, or to do the act that he did do, the grade of his crime would be reduced to manslaughter.”

In United States v. Meagher (C. C.) 31 Fed. 815, loc. cit. 881, Judge Maxey discusses the question as follows:

“There is another point to which your attention is directed, and that is intoxication. There is evidence before you tending to show that at the time of the killing defendant was laboring somewhat under the influence of liquor. You are instructed that intoxication is no excuse for crime, but it may be considered to discover the specific intent which actuates a party in the commission of the offense, and thus it may sometimes reduce the offense of murder to manslaughter; and the rule is thus stated: ‘Where the question of a specific intent is essential to the commission of a crime, * * * the fact that an offender was drunk when he did the act which, being coupled with that intention, would constitute the- crime should be taken into account by the jury in deciding whether he had that intention.-’ But this excuse is to be received with great caution, and the question is left for the jury to determine ‘whether the defendant’s mental condition was such that he was capable of a specific intent to take life/ ”

In 12 Cyc. 110 the . responsibility of a person who has voluntarily become drunk is thus stated:

“It is a well-settled, general rule that voluntary drunkenness at the time a crime is committed is no defense. If a person voluntarily drinks and becomes intoxicated, and while in that condition commits an act which would be a crime if he were sober, he is fully responsible.”

See, also, Carney v. United States, 7 Ind. T. 248, 104 S. W. 606.

Tbe rule is settled that evidence of intoxication is admissible only as bearing upon malice or lack of malice; and since the defendant was convicted of manslaughter, wherein malice is not essential, there is no error. The court, in instructing the jury on manslaughter, followed the definition as it appears in. section 5341, United States Comp. Statutes 1909, and also instructed the jury that “the term ‘willfully’ means intentionally, designedly, or without lawful excuse.”

In the opinion in this case, first here on appeal, this court quoted from O’Barr v. United States, 3 Okla. Cr. 319, 105 Pac. 988, 139 Am. St. Rep. 959, as to the meaning of the word “willfully,” as follows: “It is a synonymous term with ‘intentionally,’ ‘designedly,’ ‘without lawful excuse’ — that, is, not accidentally.”

We think the instructions given by the court fairly cover the case.

Second. Next, it is argued that the court erred in giving to the jury the original indictment, upon which was indorsed the verdict of the jury when the case was first tried. The recital in the case-made as to this .is as follows:

“The indictment was given to the jury by the court with the instructions, and no one’s attention was called to the fact that the verdict of a former jury was on the indictment. When the jury returned their verdict, it was discovered that the jury had the verdict of the former *trial. The defendant then protested, and objected to the jury having had said indictment and verdict; said objection having been made as soon as the defendant discovered that the jury had been in possession of said verdict.”

There is no attempt to show that the jury were influenced by this inadvertence. In fact, the affidavits of five of the jurors in the case are as follows:

“I was a member of the jury that tried Davis Miller in the case of the United States of America v. Davis Miller, and that I did not see the verdict of his former trial on the indictment, and did not know that he had ever been convicted of the offense charged in the indictment. The verdict on the indictment was not mentioned in the jury room during the deliberation of the jury, and, so far as I know, no member of the jury saw the verdict on the indictment, or knew anything about it.”

Counsel cite only one case (Green v. State, 38 Ark. 304), and that does not hold such action of the court is error. The third paragraph of the syllabus is as'follows:

“It is better practice not to give to the jury in a criminal case, upon retirement, an indictment on which is indorsed a verdict of guilty at a former trial.”

In Lancaster v. State, 36 Tex. Cr. R. 16, '21, 35 S. W. 165, loc. cit. 167, the Court of Criminal Appeals of Texas said:

“It is also urged that the case should be reversed, because the jury were permitted to take out, on the back of the indictment, a verdict of a former jury in the case, which, it was claimed, was legible; and in this connection a motion was made to have the original indictment sent to this court. We find an indictment with the record, but there is no certificate of the clerk to the same. An inspection of this indictment, however, does not indicate that such verdict, as claimed, is legible and can be read by the naked eye. Moreover, there is in the record the certificate of the judge to the same effect, and the affidavits of three of the jurors. Said affidavits go further, and show that, in their presence, the matter of a former verdict indorsed on the indictment was not discussed or mentioned by any of the jurors in their presence. We do not think there is anything in the appellant's contention.”

The defendant did not produce any juror for the purpose of proving that the jury either saw, considered, or were influenced by the verdict returned in the first trial. The five jurors produced by the state swear that they did not see the verdict, did not know defendant had ever been convicted, and the verdict was not mentioned during the jury’s deliberation. These facts bring the case clearly within the rule announced in the Texas cases.

In State v. Tucker, 75 Conn. 201, 52 Atl. 741, the court held:

“On a criminal prosecution in the court of common pleas, failure to remove the record of the judgment of conviction in the town court from the file given to the jury, or direct them not to regard it, was not prejudicial to the defendant, where no objection was made until after verdict.”

In State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. Rep. 875, it is said:

“Where three were jointly indicted for a felony, and one had been tried and convicted, and the verdict of ‘guilty’ was written on the indictment, and on the trial of another one of the three the said indictment was taken by the jury to their room, while they were considering their verdict, and the prisoner moved the court to send for the indictment and take it from the jury, and the court denied the motion, held no error.”

In Small v. State, 105 Ga. 669, 675, 31 S. E. 571, loc. cit. 574, the Supreme Court of Georgia said:

“The question of practice to which the sixth headnote relates has been several times considered by this court,. If a party desires a verdict rendered at a former trial concealed from inspection by the jury, he should present a request to this effect.”

No prejudice is shown, and none will be presumed. The action of the court in giving the jury the original information with the former verdict thereon was through inadvertence.

This- disposes of all questions presented. No error appears, and it seems to us the defendant had a fair and legal trial. It follows that the judgment should be affirmed.

The judgment of the district court of Le Flore county is therefore affirmed. Mandate forthwith.

AEMSTEONG, P. J., and FUEMAN, J., concur.


text:
    STANLEY BAKER v. STATE.
    No. A-1435.
    Opinion Filed March 19, 1913.
    (130 Pac. 820.)
    1. TRIAL — Right to Counsel — Assignment—Waiver, (a) It is a fundamental right of a person accused of crime.to be represented by counsel, and, in order that the accused may have the full benefit of this right, it is provided that, when he appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and he must be asked if he desires the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him. Const, art. 2, sec. 20 (sec. 6731, Comp. Laws 1909).
    (b) This right may be waived by the defendant, but it cannot be denied by the court.
    2. SAME — Assignment of Counsel — “Counsel.” The term “counsel,” as used in section 6731, Proc. Crim. Comp. Laws 1909, providing that the court must assign counsel to defend indigent defendants, means one who has been admitted as an attorney and counselor at law in this state.
    3. SAME — Evidence—Judicial Notice — Attorneys. Under the law (section 250, Comp. Laws 1909) no person resident of the state shall be permitted to practice as an attorney in any action or proceeding in which he is not a party concerned unless he has been previously admitted to the bar by order of the Supreme Court, and the courts will take judicial notice of the fact that a person appearing and acting as an attorney and counselor at law is or is not duly authorized.
    4. SAME — Assignment of Counsel to Defend — Persons Not Admitted to the Bar. In a prosecution for a felony, it having been made to ap-
    . pear that the defendant was destitute of means to employ counsel, the court appointed a person to defend him who was not authorized to appear as an attorney at law in the .courts of this state. Held, that this was, in effect, the denial of a fundamental right, and constitutes reversible error.
    (Syllabus by the Court..)

      Appeal from District Court, Wagoner County; B. C. Allen, Judge.

    Stanley Baker was convicted of larceny of live stock, and he appeals.
    Reversed.

      Ernvst L. Kistler, Norman R. HasJcell, and C. J. Nelson, for plaintiff in error.

      O. J. Davenport, Asst. Atty Gen., for the State.
   DOYLE, J.

Plaintiff in error, hereinafter referred to as the defendant, was tried in the' district court of Wagoner county on an information charging him 'with the crime of larceny of live stock, and was convicted and sentenced to imprisonment in the penitentiary for a term of ten years. The judgment and sentence was entered April 17, 1911, and on the same day the defendant was delivered to the warden of the state pentitentiary at McAlester. To reverse the judgment an appeal was taken by petition in error with a certified tran-. script of the record.

It is assigned as error that the defendant was deprived of his constitutional right to be represented by counsel. It appears from the record that the. court prior to entering upon the trial, it having been made to appear that' the defendant was destitute of means to employ counsel, appointed one P. E. Beed to defend him. No brief was filed. Norman B. Haskell, Esq., appeared and argued the case orally. The proposition of the defendant's counsel upon which he bases his demand for a reversal of this judgment is as follows: That the trial court and this court will take judicial notice of the fact that P. E. Beed was not authorized to appear as an attorney in the courts of this state. Therefore the defendant was denied the benefit of counsel. And the attention of the court is directed to the fact that the journal record shows that said P. E. Beed was not admitted to ■ practice as an attorney in this state until June 18, 1912. From an examination of the record the conclusion of the court is that the judgment in this case cannot be permitted to stand.

It is the right of a person put upon trial for a 'criminal ■offense to be represented by counsel. This right may be waived by the defendant, but it cannot be denied by the court. The Tight of the accused to the assistance of counsel in making his ■defense has long been regarded in this country as essential to the due administration of justice in criminal eases. Says Mr. Cooley:

“With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.” (Cooley, Const. Lim. 334.)

The Constitution of the United States expressly provides that:

“In all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel for his defense.” (Sixth amendment.)

And' the right is secured in the Constitution of nearly every state. Our state Constitution provides that:

“In all criminal prosecutions the accused shall have the right to be heard by himself and counsel.” (Bill of Bights, art. 2, sec. 20.)

In order that the accused may have the full benefit of this fundamental right, it is provided by statute that when he appears for arraignment, upon a charge for felony without counsel, he must be informed by the’ court that it is his right to have counsel before being arraigned and he must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him. (Procedure Criminal, sec. 6731, Comp. Laws 1909, [Rev. Laws, sec 5773.]) And it is further provided that the court shall in all such cases allow and direct to be paid by the county in which said trial is had a reasonable and just compensation to the attorney or attorneys so assigned for such services as they may render. (Procedure Criminal, sec. 7128, Comp. Laws 1909, [Rev. Laws, sec. 6112.]) Under these provisions of the Constitution and laws, the defendant was entitled to be assigned counsel, duly authorized to appear as an attorney before the courts of this state.

Under the laws of this state, no person shall be permitted to practice as an attorney or counselor at law in any action or-proceeding in which he is not a party concerned, unless he has-been previously admitted to the bar by order of the Supreme-Court (section 250, Comp. Laws 1909, [Rev. Laws, sec. 234.]) And the courts of the state will take judicial notice of the fact that a person appearing and acting as an attorney at law is or is not duly authorized to appear as such before the courts of this state. Nolan v. St. L. & S. F. R. R. Co., 19 Okla. 51, 91 Pac. 1128. Under these provisions of the Constitution and laws, it is clearly competent for the accused to appear in person without counsel if he so desires, or to waive his right to have the assistance of the counsel assigned to conduct his defense by the court'. Neverthe less, we think that, when he has applied to the court as a poor person to assign counsel to defend him, he should not be held to have waived this right, even though he failed to object to the counsel so assigned.

The term “counsel,” as used in section 6731, 'Comp. Laws 1909, providing that the court must assign counsel for indigent defendants, means a person who has been admitted as an attorney and counselor at law in this state, and it was the duty of the trial court to assign counsel duly authorized under the law to act as such. We think the right and privilege of im digent defendants to have the assistance of counsel should be strictly guarded by the courts. And in this regard our courts have uniformly conformed to the requirement of the statute. Even pleas of guilty have been rarely accepted until counsel have been assigned to investigate the merits and have recommended their acceptance by the court.. So deeply ingrafted in our criminal jurisprudence has this great right become that none are so low or so poor but they may rely upon it.

Evidently in this case the court through mistake or inadvertence believed the person assigned was qualified to act' as counsel. It does not appear that he was so assigned at the solicitation of the defendant, or that he had any voice in the selection of counsel. As a general rule all presumptions here are in favor of the lower court, but when from the record it appears that there has been a departure from the fundamental rules of criminal procedure, th;s court will reverse the judgment of conviction, unless it affirmatively appears from the record that the error complained of was not prejudicial.

While the information is sufficient to charge grand larceny, it is defective in charging the statutory ofíense of larceny of live stock, in that it does not aver that the property was taken with the felonious intent to appropriate the same to the taker’s own use. However, in the lower court no objection was made to its sufficiency.

For the reason stated, the judgment of the district court of Wagoner county is reversed, a new trial awarded and the case remanded to be further proceeded in according to the foregoing opinion and the rulés and principles of law.

The warden of the penitentiary will surrender the defendant to the sheriff of Wagoner county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law.

ARMSTRONG, P. J., and FURMAN, L, concur.


author: FUEMAN, J.

text:
    W. M. CAUDILL v. STATE.
    No. A-1852.
    Opinion Filed March 22, 1913.
    (130 Pac. 812.)
    1. APPEAL — Dismissal. An appellant has the right to dismiss his appeal whenever this can be done without prejudice to the rights of the state and the administration of justice.
    2. APPEAL — Remand with Directions. Where there is a variance between the verdict of the jury and the sentence of the court, or whenever the judgment is incomplete, which can be corrected without depriving the appellant of a substantial right, it is the duty of the Attorney General to file a motion to remand the cause, with directions to the trial court to correct its judgment and make it conform to the verdict and the law.
    3. JUDGMENT — Conviction—Punishment—Effect of Statutes. A judgment of conviction and sentence must conform to the punishment prescribed, and be enforced in conformity with the statute. In case of conviction for violating the prohibitory law, the punishment must be both by imprisonment"and fine, within the terms prescribed by the statute.
    (Syllabus by the Court.)

      Appeal from Custer County Court; J. C. McKnight, Judge.

    W. M. Caudill was convicted of a violation of the prohibitory law, and appeals.
    Dismissed, with directions.

      Henry Bulow and George T. 'Webster, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FUEMAN, J.

The appellant has filed a motion to dismiss this appeal, which he .unquestionably had the right to do. The state has filed a motion to reman'd the case, with directions to the trial court to correct the judgment, which it also had the right to do.

In the case of Wood v. State. 4 Okla. Cr. 436, 112 Pac. 11, this court said:

“All judgments and sentences of the court must follow and be based upon the verdict of the jury. Where there is a variance between the verdict of the jury and the sentence of the court, it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before the conviction will be set aside, but the cause will be remanded to the lower court for resentence.”

In the case of Ex parte Mingle, 2 Okla. Cr. 710, 104 Pac. 69, Judge Doyle, speaking for the court, said:

“It is apparent from the record before this court that there is a defect in the judgment and the sentence. It does not include imprisonment at hard labor, the penalty prescribed by the law. This should be corrected by a nunc pro tunc order. Courts in all civilized countries are established for the dispatch of public business, and are not to be circumscribed by legal technicalities in this rapid and advanced era by the rusty usages of the past, but, adapting themselves to the progressive march of civilization, must conform their rules of procedure to meet the necessities of the age.”

In the case of Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591, Judge Doyle again said:

“A judgment of conviction and sentence must conform to the punishment prescribed and.be enforced in conformity with the statute.”

In the ease of Steils v. State, 7 Okla. Or. 391, 124 Pac. 76, this court said:

"It is an outrage on law and justice, and a crime against society, for appellate courts to turn criminals loose who have been legally proven guilty, or to send their cases back to be retried at the expense of the people upon legal quibbles which are without substantial justice, and which are only shadows, cobwebs, and flyspecks on the law.”

In the case of McCormack v. State, 71 Neb. 505, 99 N. W. 237, the Supreme Court of Nebraska said:

"Where a prisoner has been found guilty on a criminal charge, and the only error that appears on the record is the failure of the court to pronounce a legal judgment against him, it is the proper practice, and this court has the power, after setting aside the void or erroneous judgment, to remand the case and the accused, * * '* with instructions to render judgment on the verdict in the manner provided by law. An ineffectual attempt of the district court to render a judgment on a verdict, according to the provisions of the law, does not deprive that court of'the power to pronounce a valid judgment against the accused.”

Appellant was found guilty by the jury of,having violated the prohibitory liquor law of the state, and the question of punishment was left to the court. By dismissing his appeal, the appellant has waived and abandoned all objections . which he might have urged to the proceedings up to and including .the verdict. Under the law, the judge had no alternative, but it was his imperative duty to assess the punishment of appellant at a fine of not less than $50 nor more than $500, and -imprisonment for the period of not less than 30 days nor more than six months. Both such fine and imprisonment must be assessed, and no judgment in such cases complies with the law which 'omits either one or the other. We presume that the trial judge omitted to assess imprisonment against appellant as a part of his punishment from an oversight, for, if willful, it would have constituted such official misconduct as would justify proceedings for removal from office. It is therefore our duty to sustain the motion made by the appellant to dismiss the appeal, and also to sustain the motion made by the state to remand the cause, with directions to the trial court to correct its judgment.

It is therefore ordered that the appeal be dismissed, and the case be remanded to the county court of Custer county, with directions that the court assess the punishment of appellant at both such fine and imprisonment, within the terms of the law, as in its discretion it may deem proper.

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


text:
    NOBLE BOWLEGS v. STATE.
    No. A-1477.
    Opinion Filed March 22, 1913.
    (130 Pac. 824.)
    1. TRIAL — Verdict—Degree of Offense. The provision of Procedure Criminal (section 6874, comp. Laws 1909, [sec. 5922, Rev. Laws]) that “whenever” a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty,” must be construed in connection with other provisions; i. e., section 6873, authorizing a general verdict of “guilty” or “not guilty,” and declaring that such verdict “imports a conviction or acquittal of the offense charged,” and section 6878, providing that the court may direct informal verdicts to be reconsidered, and “rendered in some form from which it can be clearly understood what is the intent of the jury,” also section 2028 of the Penal Code, providing that the jury shall “assess and declare the punishment in their verdict.”
    2. HOMICIDE — Verdict—Definiteness. On the trial of an indictment for murder, the court instructed the jury, in effect, that they might find the defendant guilty of murder, and, if they should so find, they must designate in their verdict whether he shall be punished by death or imprisonment for life, but, if the jury had a reasonable doubt as to the defendant’s guilt of murder, they should acquit him of that charge, and determine whether he was guilty of “manslaughter in the first degree,” and, if they should so find, his punishment must be by imprisonment for not less than four years, and that, if every essential element of this offense was not established beyond a reasonable doubt, it was the duty of the jury to acquit him, and so say by their verdcit. The issue of “manslaughter in the second degree” was not submitted to the jury. The verdict was: “We, the jury, * * * do upon our oaths find the defendant guilty of manslaughter as charged in the indictment, and assess his punishment at confinement in the state prison for a period of ten years.” Held, that the verdict is sufficiently definite and certain as to the offense of which the defendant was convicted, and is in fact a verdict of guilty of manslaughter in the first degree.
    3. NEW TRIAL — Newly Discovered Evidence — Impeaching Testimony. A verdict should not be set aside because of affidavits being filedl in support of motion for new trial, showing that the af-fiants had heard a witness for the state make statements directly contrary to such witness’ testimony in the trial.
    4. APPEAL — ‘Harmless Error. Technical errors or defects which do not affect the substantial rights of the defendant must under section 6957, Comp. Laws 1-909, (Sec. 6005, Rev. Laws), be disregarded on appeal. Prejudice is not presumed from error being made to appear, in the absence of reasonably clear indications that the defendant was thereby prejudiced upon the merits, or that it tended to his prejudice in respect to a substantial right.
    (Syllabus by the Court.)

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Noble Bowlegs was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      J. Goody Johnson, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty! 'Gen., Jos. L. Hull, Special Asst. Atty. Gen., for the state.
   DOYLE, J.

The plaintiff in error, hereinafter referred to as the defendant, was in the district court of Seminole county convicted of manslaughter in the first degree under an indictment charging him with the murder of one Caesar Stepney on or about November 26, 1908, in said county, and in accordance with the verdict of the jury was on February 2, 1911, sentenced to serve a term of ten years in the penitentiary. From the judgment of conviction, the defendant has appealed.

Briefly stated,, the record discloses the following facts: That on the night of the death of Caesar Stepney, the defendant, Noble Bowlegs, together with Tom Jefferson and a number of negroes,’ were at the home of Geo. Stepney. The defendant and Tom Jefferson were engaged in what is commonly known as a crap game. Caesar Stepney was not playing, but, with Pinkie King, was standing by, presumably watching the game. A difficulty arose between Jefferson and the defendant, and they pulled pistols, and commenced to shoot. Caesar Stepney was killed. Jefferson was wounded.

It was the theory of the state that the defendant in making the murderous assault upon Jeffierson shot and killed Caesar Stepney. The defendant claimed that he did not fire the shot which killed Stepney, and that, if he did fire said shot, he was justified in doing so because said shot was fired in his necessary self-defense at Tom Jefferson.

The alleged error upon which the defendant most confidently relies for a reversal of the judgment against him is that the verdict is insufficient to sustain the judgment. The verdict is as follows:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, Noble Bowlegs, guilty of manslaughter as charged in the indictment herein and assess his punishment at confinement in the state prison for a period of ten years.”

Counsel contends that the verdict is insufficient, because it fails to observe the requirements of section 6874, Procedure Criminal (Comp. Laws 1909), which provides:

“Whenever a crime is distinguished into degrees, the jury, if the convict the defendant, must find the degree of the crime of which he is guilty.”

The court instructed the jury that they might upon the indictment find the defendant guilty of murder, or of manslaughter in the first degree,. and that, if they found the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor; and, if they should find him guilty of manslaughter in the first degree, his punishment must be by imprisonment in the state prison for not less than four years. The essential elements of each of these offenses were clearly stated, and the doctrine of self-defense clearly defined, and that, if every essential element of each offense was not established beyond a reasonable doubt, it was the duty of the jury to acquit him, and so say by their verdict. Manslaughter in the second degree was not included in the issues submitted to the jury by the instructions of the court. The verdict was received, read, and recorded without objection on the part of the defendant.

This provision of Procedure Criminal must be interpreted in connection with other provisions which have a bearing on the question, as will be seen by reference to the same. Section 6873 provides that:

“A general verdict upon a plea of not guilty, is either ‘guilty/ or ‘not guilty/ which imparts a conviction or acquittal of the offense charged in the indictment.”

Section 6878:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

Section 6957:

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

Section 2028 of the Penal Code provides:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.”

The object and intention of section 6874 evidently was -to guard and protect the rights of the defendant, so that the court in inflicting the punishment might be advised of the exact nature of the crime of which he was convicted. The object is fully accomplished where the jury under section 2028 assess and declare the punishment in their verdict.

There is a wide divergence of judicial opinion upon the question which this contention presents. The courts of several states bave held without qualification that the degree of the crime must be specifically stated in so many 'words,. and that it cannot' be ascertained from the evidence, the instructions, or the punishment assessed. On the other hand, the courts of several states hold that, where the jury is required by statute to find the degree of the crime of which the defendant is guilty, a verdict which does not expressly state the degree is sufficiently definite and certain as to the degree of which the defendant was convicted, if the assessment of punishment clearly indicates such degree. The cases which sustain this doctrine which we have examined are as follows: Hays v. Commonwealth (Ky.) 14 S. W. 833. In this ease the indictment was for murder and the verdict was:

“We, the jury, find the defendant guilty, and fix his punishment at five years in the penitentiary.”

The Court of Appeals of Kentucky in the opinion said:

“The 257th section of the Criminal Code provides that a general verdict upon a plea of not guilty shall be guilty or not guilty; ‘and, if guilty, fixing the offense and the degree of the offense, and the punishment in cases in which the jury is required to fix the degree of punishment.’ Certainty is highly important to a proper administration of the criminal law; but it should not go so far as to sacrifice substance to form. TJnder our law, one indicted for murder may be convicted of manslaughter. The jury were told, if they found the accused guilty of murder, they must fix his punishment at death or confinement in the penitentiary for life, but, if guilty -of manslaughter, at not less than two, nor more than twenty, years’ confinement in the penitentiary. It is therefore absolutely certain from the verdict that the jury, intended to and did find the accused guilty of manslaughter. While properly the verdict should have said so, yet it substantially does, by the punishment awarded. Judgment affirmed.”

And the same court in Hunn v. Commonwealth, 143 Ky. 143, 136 S. W. 144, held:

“Failure of a verdict to name the offense of which the jury found defendant guilty does not invalidate it if from its language as a whole no cloubt can arise as to the offense of which he was convicted.”

In State v. Hayes, 23 S. D. 596, 122 N. W. 652, the Supreme Court of South Dakota in a homicide casé held:

“That a verdict finding accused guilty fas charged in the information’ and firing chis punishment at death’ was not objectionable for uncertainty.”

In State v. Pepoon, 62 Wash. 635, 114 Pac. 449, the Supreme Court of Washington said:

“The fourth contention is that a verdict of guilty as charged is not a sufficient finding of the degree, where the statute requires the degree to be found by the jury. In addition to the fact discussed above, viz., that under the testimony no other degree of guilty could have been found by the jury, there is no difficulty in interpreting this verdict. It was as follows: ‘We, the jury in the case of the State of Washington, Plaintiff, v. Geo. Pepoon, Defendant, find the defendant guilty of the crime as charged in the information.’ So that it was just as certainly a verdict of murder in the first degree as though it had been so stated in so many words, and, the court would have no difficulty whatever in pronouncing the proper judgment. Any verdict which clearly indicates the conclusion reached by the jury is sufficient. State v. McCormick, 56 Wash. 469, 105 Pac. 1037.”

We shall not attempt to review the many authorities contrary to this view which are cited by counsel in his elaborate brief. However, we think it will be found by reference to the cases cited that many of them rest on the reason that the statute is mandatory, or the jury are not required to assess the punishment. While the verdict in the case at bar is technically informal, it is sufficiently definite and- certain as to the offense and the degree of which defendant was convicted, and it is, in fact, a verdict of guilty of manslaughter in the first degree. We think the defect is not sufficient to affect the substantial rights of the defendant. He was present, his counsel was there, and this verdict was received.and read in his hearing, and no objection was made. It is our opinion that the error is not one which will justify a reversal of the judgment. It is claimed that the court erred in several of its instructions, and some half dozen are briefly criticized. We have carefully examined the instructions, and we think the instructions criticized are correct, and the instructions as a whole present the law of the case clearly and correctly.

Finally, it is insisted that the court erred in refusing to grant a new trial, based upon the insufficiency of the evidence to support the verdict and upon the ground of newly discovered evidence, as appears from the affidavits of Isaac Williams, J. P. Davis, Jones Williams, and Minnie Bowlegs, to the effect that Pinkie King said to Yernie Bowlegs in the presence of affiants a few days before the trial, that when the trouble between the defendant and Jefferson started she ran into the side room and covered up her head until the shooting was over, and that no one could tell who fired the fatal shot. And it is argued that the testimony of Pinkie King was the only testimony tending to show that the defendant fired the shot that killed Stepney, and that her testimony was false and untrue. Pinkie King testified on the trial that she and Caesar Stepney ran into an adjoining room when the shooting began; that Caesar Stepney was shot and fell dead across the bed; that she looked back after hearing the shot, and saw Noble Bowlegs standing in the door to this room with a gun in his hand, pointing towards the bed where Stepney had fallen, shot through the head. There is other testimony that the - defendant fired the fatal. shot.. George Stepney testified that he was sitting by Tom Jefferson when the shooting occurred; that Jefferson, after the defendant’s first shot, fell into a corner, and fired one shot which went into the ceiling, and the defendant fired three or four more shots. The testimony showing the position of the parties, the size of the defendant’s pistol and the size of the wound all tends to show that the defendant -fired the fatal shot. It is also in evidence that he became a fugitive from justice, and was finally apprehended at Omaha, Neb., where he was living under an assumed name. The showing was entirely insufficient to au- - thorize any disturbance of the verdict, and the trial court properly overruled the motion for new trial.

Having examined every question presented by counsel, we are of the opinion that the defendant has no just cause of complaint; that he received a fair and impartial trial; and that the verdict of the jury is upon the testimony a just one. The judgment of the district court of Seminole county is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


author: ARMSTRONG, P. J.

text:
      Ex Parte CHAS. ELEY.
    No. A-1814.
    Opinion Filed March 22, 1913.
    (130 Pac. 821.)
    1. HABEAS CORPUS — Petition—Demurrer. A petition for the writ of habeas corpus, setting up facts which show that the petitioner was imprisoned under a valid judgment of the court on the date the commitment was issued, and that no appeal was taken from such judgment, and that after incarceration in the prison petitioner was by the county judge, county attorney, and sheriff discharged from such imprisonment on their own initiative, and without authority of law, and that petitioner was thereafter, after the expiration of more than the time for which he could have been imprisoned under the original judgment, recommitted under the same judgment, states ground for relief, and is not demurrable.
    2. PARDON — Punishment — Sentence—Wrongful Discharge — Effect— “Trusty.” The petftioner was convicted of a misdemeanor in the county court of Jackson county. Judgment was pronounced by the court sentencing him to 30 days’ imprisonment and to pay a fine of $50, and upon the failure to pay such fine in cash that he should be imprisoned 25 days in lieu thereof. Commitment was issued, and he was incarcerated in the county jail. The county judge, county attorney, and sheriff released him within a short time, and, after the expiration of more than the time for which he could have been imprisoned under the judgment, the county court ordered him recommitted on the same judgment to serve the original sentence. Held, that the action of the officers in discharging the petitioner was without authority of law. Held, further, that the petitioner was in the control and custody of the sheriff, and was in effect a “trusty” under the facts disclosed, and, as a matter of law, his period of imprisonment expired 55 days from the date of his incarceration; and that any further imprisonment would he unwarranted and unlawful.
    3. SAME — Authority to Pardon. County judges, county attorneys, and sheriffs in this state have no power to parole or pardon persons convicted of crime in the courts of this state. That power is vested solely in the Governor.
    4. SAME — Power to Release Prisoner. When a person is tried for crime in a county court, convicted, and judgment pronounced, such court has no authority to release him from imprisonment under a commitment issued upon the judgment, unless the judgment he vacated or set aside on lawful grounds, or upon habeas corpus, when the judgment under which the imprisonment is had was void, except in certain cases on appeal.
    5. ESCAPE — Incarcerated Person — Unlawful Discharge. When a person is imprisoned on a judgment of a court of competent jurisdiction, and later such court, acting with the county attorney . and sheriff, usurps the power to release, and does release, him from imprisonment, such person is not guilty of escape, technical or otherwise.
    ('Syllabus by the Court.)
    Petition for the writ of habeas corpus by Charles Bley,
    writ granted, and petitioner discharged.

      W. T. McGonnell, for petitioner.

      Charles West, Atty. Gen., and M. L. Hankins, Co. Atty., contra.

   ARMSTRONG, P. J.

This is a petition for the writ of habeas corpus, filed by Charles Eley, seeking his discharge from the custody of'John D. Bailey, sheriff of Jackson county.

The undisputed facts are: That the petitioner was incarcerated on the 15th day of April, 1912, upon a commitment issued out of the county court of Jackson county on the 11th day of said month, which commitment was based upon a judgment imposing upon the petitioner a sentence of 30 days’ imprisonment and a fine of $50. The petitioner was incarcerated by the jailor of Jackson county just before noon on the 15th day of April, 1912, having been delivered to him by A. W. Collins, a deputy sheriff. A copy oí the commitment issued by said court was also delivered to the jailor at the same time. In the afternoon of the same day the petitioner was taken by the jailor to the courthouse yard and, along with the other prisoners, put on the public works. Later in the afternoon the same deputy sheriff went to the jailor and told him that the court wanted the petitioner brought before it, and asked the jailor to get the commitment which had been delivered to him, which was done. The deputy sheriff then took the petitioner and the commitment into the courthouse, and later told the jailor that the court had released the petitioner. No written release, however, was ever filed with the jailor. On the 12th day of August thereafter the county court issued another commitment on the same judgment, which was executed by the same deputy sheriff on the 15th day of said month by a delivery of a copy of the commitment and the petitioner into the custody of the jailor again. It appears that the county attorney, the county judge, and the sheriff, for some reason unknown and unexplained to this court, were responsible for the foregoing disposition of the petitioner. On the 17th day of August the petition in this ease was filed and the petitioner released on bail pending a determination of his petition.

Counsel for the respondent have filed a demurrer to the petition, based upon the decision of this court in Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967, contending that under the doctrine in that case the petition does not state grounds for relief. With this contention we cannot agree. The facts upon which the petition in the Eldridge case was based were entirely different from those in the case at bar. In the Eldridge case the petitioner had prayed an appeal from a judgment of the county court, 'bail had been allowed and given, but the appeal was not perfected, and 'after the time had lapsed within which the appeal could properly have been taken the county court of Noble county, wherein Eldridge was convicted, issued a warrant for his arrest and imprisonment under the original judgment. In the petition in the Eldridge case and the argument before this court counsel contended that the county court of Noble county was without jurisdiction to issue the order of commitment, for the reason that the time for perfecting said appeal expired June 4, 1909, and the defendant was within the jurisdiction of the court at all times, and that by operation of law his sentence began from the expiration of tlie time allowed to file a petition in error and case-made in this court, or, at the 'farthest, the maximum time within which his appeal could have been perfected under the statute. The petitioner in the Eldridge case had never been confined in prison. No commitment had ever been issued for him. The judgment against him had been superseded by an appeal bond, and the appeal had never been perfected, and on this state of facts this court held, and correctly so, that an expiration of the time under such circumstances, without imprisonment, was in no sense an execution of the sentence.

In the case under 'consideration, however, no appeal was taken. The county court pronounced judgment, and upon the judgment issued a commitment. Upon the commitment the petitioner was confined within the cells of the county jail of Jackson county, and thereafter was released by the county judge, sheriff, and county attorney. - The judgment was not vacated on lawful grounds or otherwise, nor the petitioner released by the writ of habeas corpus, on the ground that the judgment against him was void. Just what prompted such action upon the part of the officers mentioned is not explained, and no effort has been made looking to that end. When a judgment is pronounced and no appeal taken, and a commitment issued and the prisoner delivered to the custody of the county jailor, there are only three ways for him to be released lawfully until the judgment is satisfied: First, by habeas corpus, on the ground that the judgment is void; second, by order of the court, when the judgment is vacated or set aside upon lawful grounds; third, by parol or pardon from the Governor. Any other discharge or release is without authority of law, and officers guilty of such conduct lay themselves liable to the penalties prescribed by the statute.

As said by this court in Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591:

“The county court was without power or authority to grant a parole. Under the Constitution that is the prerogative of the supreme executive power vested in the Governor; and the only effect of the order discharging petitioner on probation, upon good behavior, was to modify the judgment imposing the hue, and directing imprisonment until such fine is satisfied, by making the fine, in effect, nothing more than a civil judgment, to foe satisfied by execution as on a judgment in a civil action. To that extent only could the court modify the judgment rendered.”

The county attorney and the sheriff are without color of power, of any kind to release a prisoner, and what is said by the court in Ex parte McClure, supra, applies with greater -force to sheriffs and county attorneys-; for they cannot in the least vacate, modify, or change a judgment of the court, and the court itself can only modify, vacate, or set aside a judgment upon lawful grounds.

We are asked by counsel for the respondent to hold that the act of the petitioner in departing from the custody of the-jailor, under -the circumstances heretofore set out, amounted to-a technical escape. This we cannot do. The’petitioner in this, case did no more than -any other intelligent human being would have done under like -circumstances — that is, to go home, when the court who had sentenced him, the county attorney who had’ prosecuted him, and the sheriff who had incarcerated him told’ him he could do so — and a rule could not be established, technical or otherwise, holding him to be an escape and liable to-reincarceration, without placing in the hands of county courts, sheriffs, and prosecuting attorneys the power to defeat every judgment of a court of record entered in this state, and permit them to harass and impose upon the unfortunate members of our citizenship, who happen to be convicted -and sentenced for-crime, during an endless period, by 'placing them in jail today and releasing them to-morrow, with 'or without cause, as their caprice might suggest. The petitioner in this case was in the custody of the sheriff and subject to his call at all times until the expiration of the prison sentence, and was in legal effect a “trusty.” We do not suggest that the action of the officers was prompted to by corrupt motives, but it makes no difference. what prompts the act; the rule of law is the same. There is no statute authorizing such conduct, and there should be none. The demurrer to the petition is overruled.

The judgment of the court, which was 30 days’ imprisonment and a fine of $50, or 25 days additional in case the fine was not paid, was fully satisfied 55 days from the date of the incarceration of the petitioner; and any imprisonment under said Judgment after the expiration of that time is and would be unlawful and without warrant.

More than 55 days having expired from the date of the incarceration of this petitioner to the date of his reincarceration, the judgement of the court was satisfied in law, if not in fact; and he is entitled to the writ of habeas. corpus releasing him from further imprisonment.

Let the writ issue and the petitioner be discharged.

DOYLE and FUKMAN, JJ., concur.


text:
    CECIL PROCTOR v. STATE.
    No. A-1665.
    Opinion Filed March 22, 1913.
    (130 Pac. 819.)
    1. GAMING — Indictment—Sufficiency. An indictment which charges a person with conducting the prohibited game of roulette for value, but which fails to charge that the persons who played at the game were playing for money, or a representative value, does not charge a public offense under our statute..
    2. INDICTMENT AND INFORMATION — Following Decisions of Appellate Court. It is the duty of prosecuting attorneys to follow the decisions of the appellate courts in the preparation of in-formations, and there is little justification for a failure to do so, when the appellate court has spoken in plain, unequivocal language on any specific proposition.
    3. SAME — Demurrer—Duty of Court. When questions of law are properly raised by demurrer, which are fatal to an information under the established law, it is the sworn duty of the trial courts to sustain such demurrer, and direct the prosecuting- officer to file a proper information, or dismiss the prosecution.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hay son, Judge.

    Cecil Proctor was convicted of gaming, and appeals. Re-
    versed.

      Kistler, McAdams & IlaskeTl, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Cecil Proctor, was convicted at the March, 1912, term of the county court of Oklahoma county, on a charge of conducting a roulette game, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 60 days.

The Attorney General has filed the following confession of error in this case:

“The Attorney General would respectfully call this honorable court’s attention to the charging part of the information filed in this case, which is in words and figures as follows, to irit: ‘That the above-named Cecil Proctor did, in Oklahoma county, and in the state or Oklahoma, on the 20th day of January, in the year A. D. 1912, commit the crime of operating a roulette game in manner and form as follows: They did unlawfully operate a game of roulette, as owners or employees to the state unknown, for money and other representatives of value.’ To this information plaintiff in error filed a demurrer upon the ground that said information did not state facts sufficient to constitute an offense under and by virtue of the laws of the state of Oklahoma. This demurrer was overruled by the court, and the ruling excepted to, and the error in so doing was set up in the motion for new trial and in the petition in error. Under the bolding of this court in the case of Brown v. State, 5 Okla. Cr. 41, 113 Pac. 219, the overruling of this demurrer was reversible error, for the information must allege that the same so conducted was played for money, or some representative of value. The same ruling was made in an identical case to wit, Morgan et al. v. State, 7 Okla. Cr. 45, 121 Pac. 1088. For the above reasons, the Attorney General believes that under the holdings of this court sufficient error appears of record to authorize a reversal of this judgment, and confesses error accordingly.”

It is not necessary for this court to enter into a discussion of the merits of this appeal. The confession of error correctly states the law. The opinion in the Brown case, 5 Okla. Cr. 41, 113 Pac. 219, was filed more than a year prior to the institution of this prosecution, and should have been followed by the county attorney in preparing the information, and by the court when a demurrer was filed to such information raising the question of its sufficiency. The rule declared in the Brown case, supra, has been the law in this jurisdiction for many years. As far back as February, 1907, the territorial court declared the doctrine that is followed in the Brown case, and many cases from other courts declare the same rule.

This appeal should not have been permitted to come to this court. The trial court should have sustained the demurrer, and directed the county attorney to file a proper information, or dismiss the prosecution. It- was his sworn duty to do so. The law is plain and unequivocal. The question here raised has been passed upon and adjudicated both by this court and its predecessor. The failure of the prosecuting officer and the trial court to follow the plain, unequivocal expressions of the appellate courts on this question necessitates a reversal. We cannot but sustain the confession of error and order a new trial. If this case is to be prosecuted again,. a proper information should be filed, and-the case tried upon its merits..

The judgment is reversed, and the cause remanded.

DOYLE and FURMAN, JJ., concur.


author: FTJRMAN, J.

text:
    PUDE WADSWORTH v. STATE.
    No. A-1425.
    Opinion Filed March 22, 1913.
    (130 Pac. 808.)
    1. APPEAL — Briefs—Citations of Authority — State Reports. In citing the decisions of the Supreme Court of Oklahoma or of this court in their briefs attorneys must give the page and volume of the state reports on which the cases relied upon can be found.
    2. JURY — Petit Jury Panel — Challenge—Jury Commissioners — Misconduct. (a) A challenge to the panel of petit jurors upon the ground of misconduct of the jury commissioners must state distinctly what the jury commissioners did in the selection of the jurors which was not authorized by law.,
    (b) A challenge to the panel can only be founded upon a material departure from the directions of the law in respect to the drawing and the returning of the jury, or the intentional misconduct of the sheriff in the matter of summoning the same, and it must be shown in the challenge that the defendant has suffered some material prejudice thereby.
    (c) A substantial compliance with the law as to the manner in which jurors shall be selected and summoned is all that is required.
    3. EVIDENCE — Former Testimony of Witness Since Deceased, (a) Where a witness has testified at an examining trial and has been cross-examined by the opposing party, and his evidence is taken down and signed by him, or is taken in shorthand and transcribed without signing, and is filed with the clerk of the district court by the examining magistrate, such' written statement upon proof of the death of such witness may be used as a deposition without further identification or verification.
    (b) Where a witness has testified at an examining trial and has been cross-examined by the opposing party, and his testimony is taken down by a stenographer, but the provisions of section 6623, Comp. Laws 1909, have not been complied with, a purported copy of said testimony is not admissible in evidence unless the stenographer who took down the testimony of said witness testifies that such purported copy of the evidence is a true and correct copy of his notes of the' testimony of such witness.
    4. HOMICIDE — Sudden Affray — Imminent Peril — Intent—Justification. (a) Where a defendant voluntarily and willfully enters into, a mutual combat in which he intentionally takes the. life of his adversary, such killing will be none the less murder or manslaughter because the difficulty arose suddenly, or because the defendant may have been reduced to imminent peril during the progress of said difficulty.
    (b) It is the intention which prompts the act, and not the length of its duration, which makes the unlawful killing of a human being criminal.
    (c) Every man is presumed in law to intend the natural and reasonable consequences of his acts, unless the circumstances raise a reasonable -"doubt as to what his intentions were.
    (d) Next to honor, human life is the most precious thing this side of heaven. No man with unhallowed hands can be permitted to intentionally break into the sacred house of life and shed its priceless stream and then come clear upon the ground that he acted only upon a sudden impulse or difficulty..
    (e) The intentional taking- of human life can only be justified by the mandate of the law or upon the ground of necessity, but this necessity must not be caused by the intentional fault or wrongdoing of him who attempts to plead it.
    ('Syllabus by the Court.)

      Appeal from District Court, McIntosh Co'unty; Preslie B. Cole, Judge.

    Pude Wadsworth was convicted of manslaughter, and he appeals.
    Affirmed.
    There are no questions involved in tliis ease which require a statement of the testimony.

      Claude A. Niles, J. B. Lucas, and Charles Burford, for ap-' pellant.

      Chas. West, Atty. Gen., for the State.
   FTJRMAN, J.

First. Counsel for appellant have filed an extensive brief in which they refer in general terms to a number of cases decided by this court, but they have not in a single instance cited the page and volume of the state reports on which these decisions can be found. We cannot consider such citations. The state has gone to the expense of officially publishing the reports of this court and of the Supreme Court, and these reports are conclusive as to what has been decided and can be purchased for the nominal price of $1.50 each. No lawyer has the least excuse for being without these reports, and, if he wishes to practice in this court, when he cites any of its decisions or any of the decisions of the Supreme Court he must cite the page and volume of the state reports upon which such cases can be found. We have frequently called attention to this -matter. We are too much crowded with work to enable us to have time for hunting- through other books' for what has been decided in Oklahoma. Our own reports are published under our personal supervision and are conveniently at hand, and when proper citations are made we can turn to them without the loss of a minute’s time. When laywers want their citations examined, they must conform to this rule.

Second. When this cause was reached for trial, counsel filed what they call a challenge to the panel of petit jurors. This alleged challenge covers nearly five pages of typewritten matter, . in which is set out minutely and in great detail their objections to the jury. They allege a great many things which they claim were not done by the jury commissioners, but they do not allege what the jury commissioners did do in selecting said jurors. They also object to certain jurors summoned from certain townships on account of prejudice existing in such- townships against appellant. The matters of fact alleged in said ■motion are not verified by affidavit.

Sections 6794 and 6795, Comp. Laws 1909, (Rev. Laws, 5841, 5842), are as follows:

“Section 6794. Challenge to Panel. — A challenge to the panel is an objection made to all the trial jurors returned, and may be taken by either party.
“Section 6795. Cause for Challenge. — A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in res-peet to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.”

This court has always held • that a substantial compliance with the law directing the manner in which jurors shall be selected and summoned is all that is required. When this is done the law is satisfied. If any jurors selected on a panel are prejudiced, this matter cannot be inquired into on a challenge to the panel unless there was unfairness or prejudice in the selection or summoning of said jurors. Otherwise the prejudice of jurors can be reached by a motion for a change of venue or by a challenge to individual jurors when examined upon their voir dire. We think the trial court did not err in overruling the challenge to the panel.

Third. In their brief counsel for appellant say:

“The trial court erred in sustaining the objection of the state to the introduction of testimony offered by the plaintiff relative to the testimony of a witness who tesified at the examining trial and died before the trial in the district court.”

The record touching this matter shows that H. E. Eeubelt was placed.upon the stand as a witness for appellant. He testified that he attended the examining trial of appellant at Checotah; that he heard one Cal Backbone testify. It was admitted by the state that the witness. Backbone had died before the final trial of appellant. The witness was then handed a typewritten statement and was asked if he recognized that as the testimony of said witness Backbone at the examining trial of this cause. He replied: “It appears to be; that he may have testified to some things in the statement and he may not have testified to others.” The witness testified as remembering that the witness Backbone was sworn and testified in behalf of appellant at the preliminary trial and was cross-examined by the county attorney. He was of the opinion that the paper offered in evidence was a copy of the testimony of said witness Backbone, but was not absolutely certain of it.

J. B. Lucas, a witness produced by appellant, testified that he was present when the testimony of Cal Backbone was taken down by the stenographer; that the stenographer had given him this paper as the testimony of the witness Backbone; that he has had this paper in his possession ever since; that the stenographer prepared three copies of this evidence; and that the copy offered in court is the copy handed witness by said stenographer.

C. H. Tully testified that he was present at the examining trial and heard the testimony of Cal Backbone, but he could not to save his life say that the paper offered in court was the testimony of Cal Backbone. The court then ruled that the paper offered in' evidence would not be admissible unless the stenographer who made it was present and testified to transcribing it from his notes; that, if the stenographer who made it identified it as being a true and correct copy of his notes, it would be admissible. The court excluded the written instrument offered as the testimony of the witness Backbone, to which appellant reserved an exception.

Where the testimony of a witness on an examining trial is taken down and signed by him, or is taken in shorthand and transcribed without signing, and is filed with the clerk of the district court by the examining magistrate, such written statement upon proof of the death of such witness may be used as a deposition, without further -identification or verification.

Sec. 6623, Comp. Laws 1909, (Rev. Laws, sec. 5674), is as - follows:

“Preliminary Examinations. — -First, The witnesses must be examined in the presence of the defendant, and may be cross-examined by him. On the request of the county attorney, or of the defendant, all the testimony must be reduced to writing in the form of .questions and answers and signed by the •witnesses,' or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in section 6676 of this act. In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the county attorney.”

Sec. 6676, Comp. Laws 1909, (Rev. Laws, sec. 5719). is as follows:

“In the investigation of a charge for the purpose of presenting an indictment or accusation, the grand jury may receive the written testimony of the witnesses taken in a preliminary examination of the same charge, and also the sworn testimony prepared by the county attorney, without bringing those witnesses before them, and may hear evidence given by witnesses produced and sworn before them, and may also receive legal documentary evidence.”

The paper purporting to be the evidence of the witness Backbone given at the examining trial, not being in compliance with* section 6623, above quoted, could not have been received as a deposition and used for any purpose as evidence unless the stenographer who took the testimony of said witness at said trial in open court and under oath identified it as being a true and correct copy transcribed from his notes.

The court therefore did not err in excluding the testimony offered.

As to whether or not appellant might have proven, had he attempted to do so, what the testimony of said witness Backbone was -at the preliminary trial, the said witness having died, by persons who were present and heard his testimony and could swear to the substance of it from memory, is not presented for decision, for no such offer was made in the trial court. Many authorities hold that this can be done. We do not now know of any reason why, upon a proper showing, it should not be permitted; but, as this question has not been discussed or brought before us, we will not attempt to decide it at the present time. .

Fourth. The court, among other things, instructed the jury as follows:

“The defendant does not deny the killing of the deceased, as heretofore stated, at the time and in the manner charged in the information, but claims that if he did so then he was acting in self-defense, which in law means the right to protect one’s person against an attack, injury, or danger produced by another. The right to defend one’s 'self against any danger or attack not of his own seeking is an inherent right, and which the law not only concedes, but guarantees to all men. But’.the law does not permit a man to voluntarily seek or invite a combat. The right of self-defense does mot imply the right of attack, and it will not avail in any case where the'difficulty is sought for ■and induced by the defendant, by .any willful act of his own, and where the accused voluntarily and of his own free will entered into it, no matter how imminent his peril may become during the progress- of the difficulty. Nor is any one justified in using any more force than is necessary, as it may appear to him at the time.”

To this instruction appellant reserved an exception. In objecting to this instruction counsel for appellant in their brief say:

“This instruction, boiled down, as we see it, deprives the .defendant of the defense of excusable homicide; that is, if he voluntarily entered into the difficulty, no difference how suddenly it arose, nor how imminent his peril may have become during the progress of the difficulty, he could not avail himself ' of the right of self-defense. This it seems to us violates one of the most elementary rules of the law of homicide.”

If appellant had been convicted of murder, the instruction given might have constituted reversible error, because it does not clearly. draw the distinction between mutual combats. and difficulties voluntarily sought, invited, and entered into by a defendant merely for the purpose of having a personal difficulty and without any intention of killing or inflicting serious bodily injury upon his antagonist, in which event the killing would only constitute manslaughter, or when such, difficulty was entered into where the defendant knew or had reason to believe it might result in death or serious bodily injury to himself or to his antagonist, or where the defendant entered into the same with the intention of killing his antagonist, in which event the killing would constitute murder. The same principle of. law largely controls the doctrine of mutual combat which controls in eases of provoking a difficulty.

In the case of Koozer v. State, 7 Okla. Cr. 336, 123 Pac. 554, this court said:

“To prevent misapprehension from the first paragraph in this instruction, we desire .to state that, although a defendant may not have any intention of provoking a difficulty with the ■deceased, yet if the jury should be satisfied beyond a reasonable doubt, from the language or conduct of the defendant, or from all of the facts and circumstances in evidence, that the defendant and the deceased voluntarily — that is, willfully and without real or apparent necessity — engaged in a mutual combat knowing, or having reason to believe, that it would or might result in death or serious bodily injury to either of such parties, and death ensued from such conflict, then the survivor could not plead self-defense and would be guilty of murder; but if such a combat took place, and the defendant did not know or have reason to believe tbat it would or might result in death or serious bodily injury to either or both of such parties, and if the defendant without intending to kill or inflict serious bodily injury upon the deceased struck the fatal blow, then the defendant would be guilty of manslaughter, and in either case it would be immaterial as to who struck the first blow or made the first attack. It is the law that no man can take human life upon a necessity which he wrongfully and willfully assisted to create. * * * The greatest defect in this instruction is that it should have gone further and told the jury that, if they found from the evidence beyond a reasonable doubt that the appellant used such insulting language to the deceased for the purpose of provoking him into a difficulty and furnishing the appellant a pretext for killing or doing him serious bodily injury, and that thereby a combat ensued in which the appellant killed the deceased, then the appellant would be guilty of murder; but, if appellant used such language toward the deceased for the purpose of bringing on a difficulty without .any intention on the part of appellant to kill the deceased or do him serious bodily -injury, then the appellant would be’ guilty of manslaughter. * * * We desire to emphasize the fact that, In ■all trials for murder in which the doctrine of provoking the combat arises, the court should always clearly instruct the jury that, if they are satisfied from the evidence beyond a reasonable doubt that the defendant sought, provoked, or occasioned the ¡difficulty with the 'deceased for the purpose of killing him or- -inflicting serious bodily injury upon him, then in all such cases such ¡defendant is guilty of murder if he kills the deceased in such combat, it matters not how hard pressed he might have been himself therein, unless before the fatal blow was struck, or shot was fired, the defendant in good faith seeks to abandon or -withdraw from such combat. But where a defendant seeks, provokes, or occasions a difficulty with the deceased without any intention of killing or inflicting serious bodily injury upon the deceased, but merely for the purpose of inflicting personal chastisement upon him, and such combat ensues in which the defendant Mils the deceased, then his offense is manslaughter. The line of demarcation between murder and manslaughter is the character of the intention with which a defendant provokes a fatal difficulty, and -this intention is to be gathered from the facts and circumstances in evidence. See Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006.”

In cases in which a defendant voluntarily engaged in a mutual combat in which he kills his adversary, the line of demarcation between murder and manslaughter depends upon the character of the intention with which the defendant entered into such conflict as hereinbefore explained. It therefore might be possible that under this instruction a defendant might be convicted of murder when under the evidence he should not be convicted of more than manslaughter. But this objection does not arise in the present case because the appellant was convicted of manslaughter.

Section 2288, Comp. Laws 1909, (Rev. Laws, sec. 2332), defines “excusable homicide” as follows:

“Homicide is excusable in the following cases: (1) When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent. (2) When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat provided that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

This law cannot be invoked by appellant because he killed the- 'deceased by shooting him with a double-barrel shotgun, which was a dangerous weapon.

Sections 2269 and 2270, Comp. Laws 1909, (Rev. Laws, secs. 2314, 2315), are as follows:

“Sec. 2269. Design to Effect Death Inferred. — A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.
“Sec. 2270. Premeditation. — A design to effect death sufficient to constitute murder, may be formed instantly before committing the act by which it is carried into execution.”

It would indeed be a monstrous doctrine, pregnant with danger to human life and utterly destructive of the peace and good order of society, for this court to hold that, because appellant killed the deceased in a sudden difficulty, he should be acquitted upon the ground of execusahle homicide. This would be but to license desperate men to go around armed with deadly weapons .and shoot down their fellow men upon the slightest provocation and escape punishment, provided only the shooting was done upon a sudden difficulty. This would be the rule of anarchy, not of law. It is good law and good morals that if men unnecessarily and intentionally kill each other, it is none the less murder, because such intention may be formed instantly before the commission of the act. It is the intention which prompts the act, and not the length of its duration, which makes the act of killing murder in such cases. It is also good law and good morals that men are presumed to intend the natural and reasonable consequences of their acts, and that an intention to kill arises from the act of killing, unless the circumstances raise a reasonable doubt whether such design in fact existed.

We therefore cannot agree with counsel for appellant, upon the abjection which they present, that the instruction complained of violates the most elementary rules of the law of homicide. On the contrary, we think that, if the doctrine for which they contend be conceded, it would place a premium upon the most cowardly and cold-blooded kind of assassination, namely, shooting a man down in a sudden difficulty without giving him an opportunity to .prepare to defend himself, or to even say, “God have mercy on my soul.” This doctrine would make butchers of men and a human slaughterhouse of the state of Oklahoma. It would paint our state red with innocent blood and fill it with the cry of widowhood and the wail of orphanage. Next to honor, human life is the most precious thing this side of heaven. No man with unhallowed hands can be permitted to intentionally break into the sacred house of life and shed its priceless stream and then come clear on the ground that he acted only on a sudden impulse or difficulty. We feel that we cannot too strongly condemn this idea. The intentional taking of human life can only be justified by the mandate of the law, or upon the ground of necessity. This necessity must not be caused by the intentional fault or wrongdoing of him who attempts to plead it. This is the philosophy of the law of self-defense pressed into a nut-shell. We know that the law of self-defense is often abused. This is true of every defense provided for by law. Perfection is not an attribute of human nature. Perfect laws cannot be made by imperfect men. Perfect men do not make the laws, and perfect courts and juries do not construe and enforce them. Under the very best system' possible, individual instances in which there will be a miscarriage of justice will arise; but we believe that, if we recognize the doctrine now contended for by counsel for appellant, it would result in a wholesale miscarriage of justice in Oklahoma.

We therefore hold that, as applied to the evidence in this ease, the instruction given does not constitute reversible error.

Fifth. It is not claimed by counsel for appellant in their brief that the verdict is contrary to the evidence. It is therefore not necessary to recite and discuss the testimony in detail, further than to say that from the testimony of the state we think that the evidence clearly sustains the verdict and that appellant should congratulate himself upon the fact that he escaped a conviction for murder.

We find no material error in the record.

The judgment of the lower court is therefore in all things affirmed.

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