source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    LON ADAIR v. STATE.
    No. A-504.
    Opinion Filed November 2, 1911.
    (118 Pac. 416.)
    1. CRIMINAL LAW — Insanity as Defense — Burden of Proof. Sanity being the normal and usual condition of mankind, the law presumes that every person is 'sane; hence the state in a criminal prosecution may rely upon such presumption without proof relative thereto. But when the defendant in a homicide case produces sufficient evidence to raise a reasonable doubt of his sanity, the law then imposes on the state the burden of establishing the sanity of the defendant, the same as any other material fact necessary to warrant a conviction; and if, upon consideration of all the evidence in the case, the jury have a reasonable doubt that the defendant at the time of the commission of the act charged was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he must be acquitted.
    2. SAME. Section 2034, Snyder's Stat., provides: "All persons are capable of committing crimes, except those belonging to the following classes: * * * 4. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.”
    Section 7000 provides: “An act done by a person in a state of insanity cannot be punished as a public offense.”
    Held, that the latter section does not in effect modify the former, but is supplemental to it; that under these provisions the test of criminal responsibility for committing an act, which is a crime under the law, is the mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act, or knowing its wrongfulness the defendant is not criminally responsible, if by reason of insanity he did not have the will and mental power to refrain from committing such act.
    3. SAME — Question for Jury. Insanity as a defense to crime is a question of fact for the jury to determine under proper instructions.
    4. SAME — Insanity as Defense — Question for Jury. No man should be deprived of his life or liberty under the .forms of law, unless the jurors who tried him are able, upon their consciences, to say that the evidence before them, >by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; A. T. West, Judge.

    Lon Adair was tried for murder and convicted of manslaughter in the first degree, and was sentenced to serve a term of ten years’ imprisonment. From the judgment and sentence, he appeals.
    Reversed.
    Plaintiff in error (hereinafter designated the defendant) was by information charged with the murder of one Bud Davis, in Johnston county, on March 3, 1909. That the defendant, a white man, shot and killed Bud Davis, a negro, was admitted. It appears from the evidence that on the Sunday evening prior to the shooting, the father-in-law of the defendant, an old man 65 years of age, and the deceased had an altercation. The defendant interfered, whereupon the deceased, who had a knife in his hands, took off his coat and offered to fight the defendant. Others present prevented the fight. The next morning the defendant on his way to work met the deceased, and they fought; the deceased beat the defendant over the head with a piece of plank until he said he had enough. The second day following they again met on the street in Tishomingo, and the defendant shot the deceased three or four times with a pistol. From the effects of the gunshot wounds, the deceased died the following day.
    The theory of the prosecution was that the defendant committed the homicide in revenge for being whipped, or that at least it was a case of mutual combat. The theory of the defense was that the deceased was the aggressor, and that the defendánt shot him in self-defense, and the further defense of insanity was interposed. It was in evidence that the deceased had threatened to kill the defendant, and that the deceased had the general reputation of being a man of quarrelsome and dangerous character. The defendant testified that he had lived in and about Tishomingo for 20 years; that he had been informed of the threats to take his life, made by the deceased; and that when they met the deceased attempted to draw a weapon from the bosom of his shirt, and that he, retreating from the deceased, fired the fatal shots in self-defense.
    There was evidence tending to show that the deceased had a pistol at the time he was shot. A large number of witnesses testified to intimate acquaintance with the defendant for several years, and to acts, conduct, and declarations tending to show that he was not a person of sound mind, and giving as their opinion that the defendant was not rational. Several physicians testified that from their acquaintance and observation of the defendant it was their opinion that he was insane. And it was in evidence that he suffered a fracture of the skull when a boy. In rebuttal the state offered evidence tending to show that the defendant was not insane. Two physicians gave. opinions, based upon their examination of the defendant, that he was sane, and gave the same answer to a proper hypothetical question.
    The jury returned a verdict, finding the defendant guilty of manslaughter in the first degree. The judgment and sentence was entered on June 12, 1909; the petition in error and case-made were filed in this court on November 3, 1909.

      Cornelius Hardy, for plaintiff in error.

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

(after stating the facts as above). The principal question presented arises upon the assignments' of error based upon instructions given to the jury upon the defense of insanity, and the refusal to give an instruction upon that defense requested on behalf of the defendant.

On the defense of insanity, the court instructed the jury in part as follows:

“Insanity once established is presumed to continue until the contrary is proven. The presumption of the continuance, however, applies only to cases of chronic or confirmed nature. This does not hold good in cases of occasional or intermittent derangement, or of partial insanity. i¥hen it is proved that the defendant had lucid intervals, the presumption is that the criminal act was committed during one of them; that is, if it is proved that the nature of the insanity under which the defendant was proved to have labored at some time in' the past was'only for a tipie, and at times he was partially insane, and at times he was sane, then it is presumed that the defendant committed the act while in his right mind, and it devolves upon the defendant to show that he was insane at the particular time that the offense was committed, in order to excuse him from the legal consequences of his act. A homicide committed by one who has not sufficient knowledge and understanding to comprehend right from wrong, and understand the consequences of his act, is excusable for his acts while his mind is in this condition; but it is not every derangement of the mind that will excuse one for the commission of a crime. If one has sufficient mind and understanding to know right from wrong regarding the particular act, and is able to understand and comprehend the consequences of his act, the law recognizes him as sane, and holds him responsible for such act. And, if you believe beyond a reasonable doubt that the defendant killed the deceased as charged in the information, with a premeditated design to effect his death, and that at the time of such killing he knew and understood that it was wrong to take the life of the deceased, and was able to understand and comprehend the consequences of such act, then in that event it will be your duty to find the defendant guilty of murder as charged in the indictment. On the other hand, if you should find that he was not able to know right from wrong, and was not able to understand and comprehend the consequences of his act, then you will acquit him.”

On behalf of the defendant, the following instruction was requested:

“Gentlemen of the jury, you are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed, the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity. It is not required that the defendant shall prove his insanity to the satisfaction of the minds of the jury by competent evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if he only introduces sufficient evidence to raise in your minds a reasonable doubt of his sanity, and when this is done you are instructed that the burden of proof is upon the state to prove the sanity of the defendant by competent evidence, beyond a reasonable doubt, before you would be justified in convicting the defendant as charged, in the indictment, and then the burden of proving the sanity of the defendant rests upon the state, like that of proving any other material allegation of the indictment; and if you believe that the state .has failed to prove by competent evidence, beyond a reasonable doubt, the sanity of the defendant, and if from all the evidence in the case there is a reasonable doubt in your, minds as to the sanity of the defendant, you will return a. verdict of not guilty and acquit the defendant. ;(Refused, and exception allowed. A. T. • West, Judge,)” , • .

The important question presented is, What was the proper instruction to give the jury with regard to the degrée of proof necessary for them to acquit the defendant on the ground of insanity ?

Sanity being the normal and usual condition of mankind, the law in criminal cases'presumes the defendant to be sane, and this presumption of law. stands until it is overcome by the evidence in the case. On the question as to what is sufficient proof to overcome this presumption, where the defense of insanity is interposed, and the degree of proof necessary to show that the defendant was not criminally responsible for his act, there has ever been an irreconcilable conflict of opinion. The authorities, American and English, recognize three general rules:

First, that the presumption of sanity can only be overcome by the same degree of proof that is necessary to overcome the presumption of innocence; therefore the burden is upon the defendant to establish his insanity, when the act charged was committed, beyond a reasonable doubt. This doctrine is rudimental, and is now without support, except in one or two jurisdictions.

Second, that the presumption of sanity prevails until it is overcome by a fair preponderance of evidence, and the burden is on the defendant to establish his insanity to the reasonable satisfaction of the jury. Russell on Crimes (9th Ed.) 525; Roscoe on Criminal Evidence (7th Ed.) 975; Foster’s Crown Law, 225. This might properly be termed the English doctrine. The leading case in the English courts is McNaghten’s Case, 10 C. & Finn. 200. McNaghten was tried for the murder of a Air. Drummond, private secretary of Sir Robert Peel, mistaking him for the Premier himself. He was acquitted on the ground of insanity, and his acquittal caused so much excitement that the question of insanity as a defense in criminal cases was made the subject of debate in the House of Lords, and the opinion of the judges on the law governing such cases was taken. On the question here involved, Lord Chief Justice Tindall, speaking for himself and the other judges, said that the jurors ought to be told in all cases where insanity is set up as a defense that “every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary he proved to their satisfaction.” The rule so declared has been accepted as settling the law on this question by the English courts, and with minor modifications it has been approved by the courts of last resort in many of the states. In some of the states this rule is statutory.

Third. If any evidence is introduced tending to prove that the defendant was insane at the time of the commission of the act charged, then the burden of proving the sanity of the defendant devolves upon the prosecution, and the state is bound to establish his sanity, like all other elements of the crime, beyond a reasonable doubt. This doctrine is distinctively American, and is the rule declared by the Supreme Court of the United States.

The leading case supporting this rule is Davis v. United States, 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 499. In the opinion of the court, fully reviewing the authorities, English as well as American, it is .said by'Mr. Justice Harlan:

“We are unable to assent to the doctrine that in a prosecution for murder, the defense being insanity, and the fact of the killing with a deadly weapon being clearly established, it is the duty of the jury to convict when the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing. On the contrary, he is entitled to an acquittal of the specific crime charged, if upon all the evidence there is.reasonable doubt whether he was capable in law of committing crime.
“No one, we assume, would wish either the courts or juries, when trying a case of murder, to disregard the human principle, existing at common law and recognized in all the cases tending to support the charge of the court below, that, ‘to'make a complete crime cognizable by human laws, there must be both a will and an act’; and, ‘as a vicious will without a vicious act is no civil crime, so, on the other hand, an. unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must be, first, a vicious will, and, secondly, an unlawful act consequent upon such vicious will,’ 4 B1. Com. 21. All this is implied in the accepted definition of murder ; for it is of the very -essence of the heinous crime that it be committed by a person of ‘sound memory and discretion,’ and with ‘malice aforethought,’ either express or implied. 4 B1. Com. 195; 3 Inst. 47; 2 Chitty’s Cr. Law, 476. Such was the view of the court below, which took care in its charge to say tha$t the crime of murder could only be committed by a sane being, although it instructed the jury that a reasonable doubt as to the sanity of the accused would not alone protect him against a verdict of guilty.
“One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have ‘a wicked, depraved, and malignant heart,’ or a heart ‘regardless of social duty and fatally bent on mischief,’ unless .at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act. Although the killing of one human being by another human being with a deadly weapon is presumed to be malicious until the contrary appears, yet] ‘in order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts.’ Commonwealth v. Rogers, 7 Metc. (Mass.) 500 [41 Am. Dec. 458]. Neither in the adjudged cases nor in the elementary treatises upon criminal law is there to be found any dissent from these general propositions. All admit that the crime of murder necessarily involves the possession by the accused of such mental capacity as will render him criminally responsible.for his acts.
“Upon whom, then, must rest the burden of proving that the accused, whpse life it is sought to take under the forms of law, belongs to a class capable of committing crime? On principle, it must rest upon those who affirm that he has committed the crime for which he is indicted. That burden is not fully discharged, nor is there any legal right to take the life of the accused, until guilt is made to appear from all the evidence in the case. The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive ground of defense by a preponderance of evidence. It is not in confession and avoidance, for it is a plea that controverts the existence of every fact essential to constitute the crime charged. Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot, in the very nature of things, be regarded as proved, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime.
“This view is not at all inconsistent with the presumption which the law, justified by. the general experience of mankind, as well as by consideration of public safety, indulged in fávor of sanity. If that presumption were not indulged, the government would always be under the necessity -of adducing affirmative evidence of the sanity of an accused. But a requirement of that character would seriously delay and embarrass the enforcement of the laws against crime, and in most cases be unnecessary. Consequently the law presumes that every one charged with crime is sane, and thus supplies in the first instance the required proof of capacity to commit crime. It authorizes the jury to assume at the outset that the accused is criminally rrsponsible for his acts. But-that is not a conclusive presumption, which the law upon grounds of public policy forbids to be overthrown or impaired by opposing proof. It is a disputable, or, as it is often designated, a rebuttable- presumption, resulting from the connection ordinarily existing between certain facts — such connection not being 'so intimate, nor so nearly universal, as to render it expedient that it should be absolutely and imperatively presumed to exist in every case, all evidence to the contrary being rejected; but yet it is so general and so nearly universal that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other, in the absence of all opposing evidence.’ 1 Greenl. Ev. par. 38. It is therefore a presumption that is liable to be overcome or to be so far impaired in a particular case that it cannot be safely or properly made the basis of action in that case, especially if the inquiry involves human life. In a certain sense, it may be true that where the defense is insanity, and where the case made by the prosecution disclose,r nothing whatever in excuse or extenuation of the crime charged, the accused is bound to produce some evidence that will impair or weaken the force of the legal presumption in favor of sanity. But to hold that such presumption must absolutely control the jury until it is overthrown or impaired by evidence sufficient to establish the fact of insanity beyond all reasonable doubt, or to the reasonable satisfaction of the jury, is in effect to require him to establish his innocence, by proving that he is not guilty of the crime charged.”

And in' conclusion:

“It seems to us that undue stress is placed in some of the cases upon the fact that, in prosecutions for murder, the defense of insanity is frequently resorted to, and' is sustained by the evidence of ingenious experts, whose theories are difficult to be met and overcome. Thus, it said crimes of the most atrocious character often go unpunished, and the public safety is thereby endangered. But the possibility of such results must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from-principles fundamental in criminal law, and the recognation and enforcement of which are demanded by every consideration of humanity and justice. No man should be deprived of his life under the forms of law, unless the jurors who try him are able, upon their consciences, to say that the evidence before, them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.”

The following authorities support the American- doctrine: Henson v. State, 112 Ala. 41, 21 South. 79; Jones v. People, 23 Colo. 276, 47 Pac. 276; Guiteau’s Case (D. C.) 10 Fed. 161; Armstrong v. State, 30 Fla. 170, 11 South. 618, 17 L. R. A. 484; Johnson v. State, 57 Fla. 18, 49 South. 40; Anderson v. State, 42 Ga. 9; State v. Wetter, 11 Idaho, 433, 83 Pac. 341; State v. Flemming, 17 Idaho, 471, 106 Pac. 305; People v. Casey, 231 Ill. 261, 83 N. E. 278; Lilly v. People, 148 Ill. 467, 36 N. E. 95; Sanders v. State, 94 Ind. 147; State v. Mahn, 25 Kan. 182; Commomvealth v. Johnson, 188 Mass. 382, 74 N. E. 939; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; People v. Finley, 38 Mich. 482; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; Ford v. State, 73 Miss. 734, 19 South. 665, 35 L. R. A. 117; State v. Kcerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 579; State v. Crowe, 39 Mont. 174, 102 Pac. 579; Knights v. State, 58 Neb. 225, 78 N. W. 508, 76 Am. St. Rep. 78; Furst v. State, 31 Neb. 403, 47 N. W. 1116; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Faulkner v. Territory, 6 N. M. 464, 30 Pac. 905; Walker v. People, 88 N. Y. 81; Brotherton v. People, 75 N. Y. 159; People v. Taylor, 138 N. Y. 398, 34 N. E. 275; Maas v. Territory, 10 Okla. 714, 63 Pac. 960, 53 L. R. A. 814; Dove v. State, 3 Heisk. (Tenn.) 348; King v. State, 91 Tenn. 617, 20 S. W. 169; King v. State, 9 Tex. App. 515; State v. Brown, 36 Utah, 46, 102 Pac. 641, 24 L. R. A. (N. S.) 545; Duthey v. State, 131 Wis. 178, 111 N. W. 222, 10 L. R. A. (N. S.) 1032; State v. Pressler, 16 Wyo. 214, 92 Pac. 806; Hotema v. U. S., 186 U. S. 413, 22 Sup. Ct. 895, 46 L. Ed. 1225; U. S. v. Chisholm (C. C.) 153 Fed. 808.

On principle we believe the American doctrine declares the true rule on this question. It is best sustained by reason, and is as well sustained by authority as the English doctrine. In homicide cases, section 6854 (Snyder's Stat.) Procedure Criminal, requires a slight qualification of this rule. We will now consider the provisions of the Penal Code and Procedure Criminal pertinent to this inquiry.

Section 2034 (Snyd.er’s Stat.) of the Penal Code provides:

Opinion of the Court.

“All persons are capable o'f committing crimes, except those belonging to the following classes: * * * 4. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.”

Section 7000, Procedure Criminal, provides:

“An act done by a person in a state of insanity cannot be punished as a public offense.”

Under subdivision 4 of section 2034, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has 'the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.

It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine, that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of. reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and . charged, and incapable to understand the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case.

The term “insanity” as used in section 7000, supra, is generic, and comprehends all unsound, diseased, and deranged conditions of the mind or intellect. This section does not in effect modify section 2034, but is supplemental to it; under this section, erren if the accused at the time of committing the act charged against .him was capable of knowing its wrongfulness, he is not criminally responsible, if by reason of his insanity he did not have the will and mental power to refrain from committing such act. No person can commit an offense who is not legally capable of committing a crime: When the presumptions of law are given their proper effect, there is no good and sufficient reason why "the defense of insanity should be governed "by rules as to the burden of proof different from those applicable to any other defense.

The question is discussed with convincing ability by Mr. Justice Burwell, in the case of Maas v. Territory, supra, wherein the Supreme Court of Oklahoma Territory held:

“(1) Where one is being tried for murder, and his defense is insanity, lunacy or unsoundness of mind at the time of committing the act, the defendant,, in the first instance, is presumed to be sane and of sound mind, and the burden is upon him to introduce sufficient evidence to raise a reasonable doubt as to. his sanity. When he has done this the territory, before a conviction can be had, is required to prove his sanity beyond a reasonable doubt.”

Our statutes provide that (section 6828, Snyder’s) :

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in a_ case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

It is also provided that (section 6854):

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

The burden of proof on any issue is always .contrary to the presumption. One who disputes a presumption must take the burden; but to what extent ?

Under section 6828, supra, the presumption of innocence is a presumption that the defendant did not commit the act which the law makes a crime, and the burden of proof is upon the prosecution. Under section 6854, supra, upon a trial for murder, the presumption of innocence has been overcome when the commission of the homicide by the defendant is proven beyond a reasonable doubt; a presumption of guilt then obtains, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Thereupon, under this-section of the statute, the burden of introducing sufficient evidence to raise a reasonable doubt of his guilt is upon the defendant. When he has done this, the burden of proof is upon the state to establish the guilt of the defendant beyond a reasonable-doubt.

Every defendant is presumed in law to be sane and capable-of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission-of the homicide. The 'law thereupon imposes upon the state-the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt.

Section 6854, supra, was construed by this court in the case of Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, and it was-there held that this section of the statute only places upon the defendant the burden of introducing sufficient evidence to raise a reasonable doubt of his guilt of murder, and when the defendant has done this the burden of proof is on the prosecution to-prove his guilt on the whole case, beyond a reasonable doubt.

The opinion by Mr. Justice Richardson is a masterly exposition of the law of presumptions. His language is in part as follows :

“Now, under an express provision of our statutes (section-6854, Snyder’s Comp. L. Okla.), where the charge is murder, if -the prosecution proves the death of-the deceased and the fact that he was killed by the defendant without proving circumstances tending to show either justification or excuse for the-defendant, then, there devolves upon the latter, if he contends that he was justifiable or excusable, the duty of producing evidence tending to show that fact. The quantum of evidence necessary for that purpose is fixed by law, and is nominated such as is sufficient to raise a reasonable doubt upon that issue. The state is not required, in the first place, to prove the absence of justification or excuse. Unless the evidence on the part of the state tends to show the presence of one or the other, the defendant must produce such evidence, or a conviction will result. Therefore, when such stage of the proceeding has been reached, and such •condition has arisen that the burden of proving circumstances that justify or excuse the homicide, to use the statutory expression, devolves upon the defendant, can it be said that he is then presumed to be innocent? If s.o, in what does the presumption consist? What is innocence? Innocence consists either in not having committed the homicide at all, or in the existence of facts •or circumstances which justify or excuse it. And to be presumed innocent the defendant must be presumed either not to have -done the killing, or to have done it under circumstances constituting the act legally justifiable or excusable. Now, when it has "been proved beyond a reasonable doubt on the one hand, and admitted on the other, that the defendant committed the homicide, there can no longer be a presumption that he did riot do so. Of this the contrary has been proved, has not been denied, but is explicitly admitted. So, if there exists now a presumption of innocence in the defendant’s behalf, it consists solely in the presumption that the act was either justifiable or excusable. But here the statute intervenes and says that the burden of proving circumstances that justify or'excuse the homicide devolves upon the accused. And by what process of reasoning can the statement that he is presumed to ’'ave been excusable or justifiable be reconciled with the statutory provision that the duty devolves upon him in such case to produce evidence tending to show his justification or excuse, failing in which a conviction follows? How can that be presumed which the law says must be proved? And of what value would the presumption be in such case? * * *
“The situation of a defendant charged with murder, who has been proved to have committed the killing, and who seeks to justify or excuse it, is analogous to that of a defendant in a civil action, whose plea is a confession and avoidance. There is no presumption in favor of the existence of matter in avoidance for either; for the duty of producing evidence is upon each of them. The quantum of proof, to be sure, is different; the defendant in the civil action being required to prove the matter alleged in avoidance by a preponderance of the evidence, while the defendant in the criminal action prevails, if upon the whole case he succeeds merely in generating a reasonable doubt of his justification or excuse. But the quantum of proof required has nothing to do with the presumption. The fact that any degree of proof is required of the defendant shows that the presumption is riot with him; for it is foolish to say that what is already presumed must be proved, and that what must be proved is presumed. For instance, the law says that all men are presumed sane and responsible for their acts, and that if a defendant charged with crime contends that he was excusable on account of insanity, the duty rests upon him of producing evidence at least sufficient to raise a reasonable doubt as to his sanity; unless the evidence on the part of the prosecution engenders such doubt. Now, suppose that A. is charged with the murder of B., and his defense is insanity. The killing is proved beyond a reasonable doubt, and no facts indicating either justification or excuse for A. appears from any portion of the evidence on the part of the prosecution. The prosecution then rests. Is A. presumed to be innocent at this stage of the proceedings? If so, it is because he is presumed insane; he is no longer presumed not to have killed-B. And if he is still presumed innocent, he, too, may rest here, and an acquittal must follow; for it is absurd to say that a man can be returned guilty, while he is presumed innocent. The same is true if A.’s plea is self-defense, or that the killing was an accident. The statute expressly declares that the burden of proving circumstances that justify or excuse the homicide is on him. The presumption is no longer with him. The law says to him at this stage of the proceeding: ‘You have been stripped of your presumption of innocence. Produce evidence of your insanity, your self-defense, or your accident,, or suffer the consequences.’
“It is true that the burden of proof, properly so called, is on the prosecution from the beginning to the end of the trial. That is to say, to obtain a verdict of guilty, the prosecution must by evidence exclude every reasonable doubt of the defendant’s innocence, and see to it that it stands excluded when the trial ends. If, when the prosecution has concluded its evidence in chief, its character is such that, if unrebutted, a jury under their oaths should and would return a verdict of guilty, then the prosecution has borne its burden to this stage. If the defendant produces no evidence, the trial closes, the prosecution has borne its burden throughout the trial, and a conviction is therefore the result. On the other hand, if the defendant does not rest, but produces evidence sufficient to engender a reasonable doubt, either upon the direct case, or as to' the truth' of matter set up in avoidance, and the px-osecution allows that doubt to remain when the taking of evidence is closed, then the prosecution fails. It has not maintained its burden, for it has 'not caused a reasonable doubt of innocence to stand excluded when the trial ends. But, if when the state concludes its evidence in chief it is such that if unrebutted a verdict of guilty should result, the presumption of innocence is then overcome; the defendant cannot then rest and demand an acquittal, because h¿ is presumed to be innocent. That which the presumption of innocence relieved him of so long as it existed, namely, the necessity of adducing evidence, now devolves upon him. The burden of proof which the law created —that of having a reasonable doubt of innocence excluded when the trial ends — is still on the prosecution. The hazard of losing, which the proof on the part of the prosecution created, is on the defendant. The presumption of innocence having been overcome, it is no longer 'his sufficient shield,’ 'an aegis of protection’ for him. He must now go forward with his evidence, or suffer ■the consequences.
“But it is said that the presumption must be evidence, and must always abide with the defendant throughout the whole trial ; for if the evidence upon any essential issue be equally balanced, or the matter be doubtful, the presumption of innocence turns the scale for the defendant. We do not so understand the law. The quantum of proof necessary to effect persuasion and establish guilt has nothing to do with the presumption of innocence. The law might provide that a mere preponderance of evidence should be sufficient to establish guilt, and still prescribe for the defendant this same presumption of innocence. The law does provide that the defendant’s guilt must be proved beyond a reasonable doubt; and if upon the' whole case the evidence be equally balanced, or the matter be left doubtful, or even if the evidence preponderates in behalf of guilt, but does not exclude a reasonable doubt of innocence, an acquittal must result. Not, however, because the presumption is- thrown into and tips the scales ; even if the presumption be' evidence, that would be determining the question of guilt by a mere preponderance of the evidence; but an acquittal follows because the prosecution has not complied with that other provision of the law requiring proof of guilt to the exclusion of a reasonable doubt.
“It is also said that the presumption must under all circumstances abide with the defendant throughout the trial, because the jury are not to form any opinion as to guilt or innocence until they have heard all the evidence, and until the matter has been finally submitted to them. It is true that the jury are to keep open minds at all times, ready for the reception and proper weighing of all evidence given before them, the application thereto of the court’s instructions, and a consideration of the attorneys’■ argument; but we do not understand that this duty grows-out of the presumption of innocence; that it is in any manner dependent upon the presumption for its existence; or that the duty disappears when the presumption has been overcome. On the contrary, we opine that it springs from that provision of the law expressed by the maxim, 'Audi alteran partem/ and that this same duty would appertain to a jury if the law presumed guilt, instead of innocence, or if it indulged no presumption at all. This duty exists in all cases, both civil and criminal, throughout the whole trial, though successive presumptions may arise in behalf of each party and be overcome, and though the burden of proof, i. e., the duty of producing evidence, may shift time after time. The jury are not to form any opinion as to guilt or innocence until the case has been finally submitted to them for their verdict; but that does not mean that in fact the evidence at a certain stage of the proceeding was not sufficient to-establish guilt, so that if the parties had rested there a conviction would have resulted; that the presumption of innocence had not in fact been overcome, and the necessity of adducing evidence had not shifted to the defendant, so that the risk of non-persuasion .was on him. Such may have been the case without the jury at that time having so determined. Such is often the case. The present knowledge or ascertainment of that fact is not necessary to its present existence. The court and the parties take cognizance of these matters as the trial progresses, in regulating the production of evidence. If, when the state rests, the defendant is still presumed to be innocent, then he, too, may safely rest, for, as already stated, a jury cannot return a verdict of guilty so long as they presume him innocent; but before he does so, let him be sure, and determine at his peril, that the presumption is still with him.
“Also it is said that the presumption of innocence must abide throughout the whole of the trial and relate to every element of the crime charged; for if the circumstances attending any material act proved at any stage of the proceeding are subject to two different interpretations, one such as to make the act criminal, and the other innocent, the presumption of innocence impels the adoption of that interpretation which favors innocence. We do not agree with this statement. We think the true statement is that, if the state of the evidence is such that a reasonable doubt of the criminality of the act or acts, remains after a consideration of all the evidence in the case, the prosecution has failed. If the minds of the jurors ar'e left hesitating or vacillating between guilt or innocence, then the rule respecting a reasonable doubt upon the whole case impels an acquittal. The presumption does not; and to say that it does is again to say that the matter is determined by a preponderance of the proof; that the presumption is proof, and creates a preponderance for the defendant.
“The presumption of innocence is the same presumption which obtained in behalf of the accused at common law. In not a single instance has it been amplified by statute. And the statements that it is evidence in behalf of the accused, and that it always abides with him until the verdict is reached, are both judicial innovations, never heard of anywhere, and not found in any text-book or report, until after the beginning of the nineteenth century. Such statements wholly ignore the history of the presumption; they are at variance with the reason and philosophy of it, and they involve the subject in such mysticism and inexplicable confusion that it becomes impossible of application or even comprehension.
“We think the rules contended for are contrary to the whole rationale of a trial; that when the trial of any criminal case is observed throughout its various stages, it becomes apparent that no such rules éxist. And when they are given as an instruction the}' are mere empty words — a verbal formality — devoid of meaning and impossible of application. When the jury go to deliberate upon their verdict, they weigh no presumption; they look to the proof, and only to the proof. They weigh the evidence, and the evidence only. The presumption of innocence fulfilled its purpose when it required the state first to go forward with its evidence and establish a prima facie case. Thenceforth it is solely a question of proof and the quantum thereof.”

Under the statute, the rule as to the burden of proof in a homicide case, when the defense of insanity is interposed, we hold to be this: The defendant is presumed in law to be sane and capable of knowing right from wrong as to the homicidal act, and to understand the nature and consequences of such act, and, unless the proof on the part of the prosecution is sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide, the burden is upon the defendant, in the first instance, to overcome this presumption by introducing sufficient evidence to raise a reasonable doubt of his sanity when the act' was committed. When he has done this, the prosecution, in order to convict, must prove the defendant’s sanity beyond a reasonable doubt; and if, on a consideration of all the evidence, the jury entertain a reasonable doubt as to the defendant’s sanity when the act was committed he should be acquitted.

Under this rule the defendant was entitled tó have the instruction requested on his behalf given. The instruction correctly presents the law on this question in connection with the right and wrong test, which is imperfectly stated in the second paragraph of the instruction given. The first paragraph of the instruction quoted and given, regarding presumptions when insanity in certain forms have been proven prior to the commission of the homicide, is erroneous. The fact that the proof shows that the defendant at a time anterior thereto was insane does not, in a criminal case, carry with it a presumption that he continues to be in a state of insanity 'until the contrary is proven.

When the homicide is admitted, justification in self-defense, or excusable by reason of insanity, are almost invariably relied upon as defenses. Both were interposed in the case at bar. The plea of self-defense has often been strained to maintain, as a matter of justification, almost any invasion of certain ideas of natural right, where the popular sentiment of the community is favorable to the so-called “higher law,” and it cannot be doubted that the evil resulting from the abuse of this defense has seriously impaired its legitimate value. Neither can it be denied that the defense of insanity is frequently interposed in homicide cases when all other means of avoiding conviction and escaping punishment is hopeless. For this reason, insanity as a defense is almost always viewed with distrust, and it is a popular belief that it is the last resort of desperate criminals. In the statfe of Washington, this sentiment resulted in the enactment of a law providing that insanity is no defense to a charge of crime. The Supreme Court of that state, in the case of State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. R. A. (N. S.) 1216, declared this statute unconstitutional, and held that a statute “providing that insanity is no defense to a charge of crime contravenes Const, art. 1, sec. 3, providing that no person shall be deprived of life, liberty, or property without due process of law, since the criminal intent is an essential element of crime.”

Injustice is thus often done to a defendant who, in the judgment of his counsel, has legitimate ground for interposing this defense, and who must therefore at the outset overcome this sentiment of popular distrust. We believe the danger is that indignation at the crime and distrust of this defense will cause jurors to be incredulous of its evidence, and thus the actually insane may be unjustly convicted. This result can only be avoided by fully and justly determining this issue the same as any other fact entering into the question of a defendant’s guilt. The idea of punishment, when associated with this unhappy malady, is revolting to the instincts of humanity; every principle of justice and humanity demands that this defense, when legitimately made, be fairly considered, and where the evidence adduced is sufficient to establish that unfortunate infirmity of mind, and a reasonable doubt is thereby raised of the defendant’s sanity, the defendant must have the benefit of-the doubt.

Modern research has done much to elucidate what was formerly very obscure touching the true pathology of insanity, although no invariable or infallible test of the existence of insanity has ever been found. Says Mr. Bishop:

“Many attempts have been made to discover, what has been assumed to exist, a form of words, termed a test of insanity, which, put into the hands of jurors, can be used by them as a sort of legal yardstick, to measure the evidence and determine whether or not the prisoner had a sufficient length of mental alienation to escape responsibility for his act. But the test has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.” (Bish. New Crim. Law [8th Ed.] sec. 381).
“The symptoms and causes of insanity are so variable, and its pathology so complex, that no two cases may be just alike. The fact of its existence is never established by any single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.” (Ray’s Med. Jur. Ins. par. 22).

Persons suffering from this unhappy malady are here placed under the care and custody of the state by laws requiring their confinement in state asylums and hospitals for treatment. The establishing of asylums and hospitals for the insane, and the enactment of laws requiring the compulsory confinement of persons accused and acquitted of crime on the ground of insanity, has in a large measure tended to relax the rigid rules which once governed this defense.

Our statutes provide, sec. 2037, Snyder’s:

“When a jury have returned a verdict acquitting a defendant upon the ground of insanity, the court may thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public safety, order him to be committed to the state lunatic asylum, or to the care of such person or persons as the court may direct, till he becomes sane.”

Section 6884:

“If the defense is the insanity of the defendant the jury must be instructed, if they acquit him on that ground to state the fact with their verdict. The court may thereupon, if the defendant is in custody and they deem his discharge dangerous to the public peace or safety order him to be committed to the care of the sheriff until he becomes sane.”

Under these provisions, it is the duty of the court, if the defendant is acquitted by reason of his insanity, to order his confinement in a state asylum indefinitely, or until it shall be determined judicially that it is safe, legal, and right that he should be discharged. The security of society is thus fully protected.

For the reasons stated, and without considering the other assignments of error presented, the judgment of conviction is reversed, and the cause remanded to the district court of Johnston county, with directions to grant a new trial.

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


author: FURMAN, P. J.

text:
    M. D. SUITOR v. STATE.
    No. A-738.
    Opinion Filed November 2, 1911.
    (118 Pac. 412.)
    1. APPEAL AND ERROR — Review—New Trial. Where the evidence in a case conclusively establishes the guilt of appellant, and there is not in the record anything to indicate that upon a second trial an intelligent and honest jury would reasonably arrive at any other verdict than that of the guilt of appellant, a new trial will not be granted, except for fundamental errors.
    2. INDICTMENT AND INFORMATION — Conviction of Lower Offense — Assault, (a) Where an indictment or information charges a felony which the district court has jurisdiction to hear and determine, the jurisdiction of the district court extends, not only to the felony charged, but also to any lower grade of the offense which the proof may develop.
    (b) Where an information or indictment charges a defendant with an assault with intent to kill, and he is upon trial in the district court on said charge, it is competent for the jury to convict him of assault and battery, if warranted by the testimony, and the district court has jurisdiction to receive such verdict and enter judgment thereon.
    (Syllabus by the Court.) .

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    M. D. Suitor was convicted of assault and battery, and appeals.
    Affirmed.

      Garrett & Stewart, for appellant.

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

First. Upon the trial of this cause, when the same was submitted to the jury, the court handed the jury a number of different forms of verdict, among which was the following :

“We, the jury, impaneled and sworn to try the issues.in the above-entitled cause, do upon oath find the defendant, M. D. Suitor, guilty of an assault and battery, and we' fix his punishment at imprisonment in the county jail for the period of-days, and a fine of-.”

It is insisted by counsel for appellant that the handing of this form of verdict to the jury by the trial court was reversible error, because it by implication instructed the jury that, if they convicted the defendant of assault and battery, they must fix his punishment at imprisonment in the county jail and also assess against him a fine.

Section 2335, Snyder’s Comp. Raws of Okla. 1909, is as follows:

“Assault, or assault and battery, shall be punishable by imprisonment in a county jail not exceeding thirty days, or'by a fine of not less than five dollars, or.more than one hundred dollars, or both, at the discretion of the court.”

From this it is seen that a jury, when they convict of assault and battery, is not required to assess the punishment of a defendant at both fine and imprisonment, but'that they may assess either one or the other, or both, at their discretion. We find, however, in turning to the record, that appellant did not reserve a proper exception to the form of verdict here complained of. The record shows that the court submitted to the jury a number of different forms of verdict, among which appears the form of verdict now complained of, and which was adopted by the jury, and that counsel for appellant reserved a general exception to these forms of verdict and a special exception to the form of verdict as' to assault with a dangerous weapon. The court correctly instructed the jury in the general charge as to the punishment for assault and battery. We have no doubt that, if appellant had especially called the attention of the court to the form of verdict which was adopted by .the jury, and of which they now complain, the court would have corrected the error contained therein. The general exception reserved by defendant to this form of verdict amounts to no exception at all, and will, therefore, not be considered by the court.

There was, however, error, in the form of verdict submitted by the court to the jury, and which was adopted by them in finding their verdict. We find from the evidence in the record that appellant, without the least justification or excuse, struck the prosecuting witness over the head with a gun, cutting a gash therein, which bled freely, and which constituted a severe wound. W.e are only surprised that the jury did not find the appellant guilty of a graver offense, and inflict a more severe punishment upon him. The gun with which the blow was struck weighed between two and three pounds, and some of the witnesses testified1 that death could be inflicted with it in the manner in which it was used, and that the blow cut the prosecuting witness to the skull. We think that, instead of complaining, appellant should thank the jury for the leniency with which he was treated. This was doubtless due to the ability of his counsel, because according to the testimony of appellant he should have been convicted by the jury. There is not one word of evidence in the record of justification or mitigation, and we think that the evidence proves the offense with which appellant was charged, in the information, and we are surprised that the jury did not so find. It was error in favor of appellant for the court to charge on the law of assault and battery, and of this he cannot be heard to complain. We therefore cannot see any good purpose that-can be subserved by granting to appellant a new trial on account of the error of the court in the form of the verdict. In the light of the entire testimony, we think that the error was clearly harmless.

Second. Appellant was prosecuted by information charging him with the offense of making an assault with intent to kill the party assaulted, by means of a deadly weapon of sufficient length and weight to likely inflict death on any. person upon whom the same might be used as a bludgeon, and 'was convicted of an assault and battery. Appellant’s counsel seriously contend that, because the district court has no jurisdiction to try a person charged with an assault and battery, the court was also without jurisdiction to receive a verdict for this offense and enter a judgment thereon. Section 6875, Snyder’s Comp. Laws of Okla. 1909, is as follows:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of any attempt to commit the-offense.”

The crime of assault and battery is necessarily .included in the greater offense of assault and battery with intent to kill. This question has been expressly passed upon in the case of Nance v. State, 21 Tex. App. 457, 1 S. W. 448. Judge Willson, one of the ablest judges who ever sat upon that court, disposed of it as follows:

“The exception to the jurisdiction of the court is not a sound one. The indictment charged a felony, which included a misdemeanor. A felony being charged, the district court had jurisdiction to hear and determine the case, not only as to the felony, but as to any lower grade of offense which the proof might develop. It is expressly so provided by the statute, and we cannot perceive that such provision is in conflict with the Constitution, as contended by defendant’s counsel. Code Crim. Proc., art. 69. Such has been the holding of this court in several cases in which this question has been presented. Harberger v. State, 4 Tex. App. 26 [30 Am. Rep. 157] ; Ingle v. State, 4 Tex. App. 91; Montgomery v. State, 4 Tex. App. 140.”

We think that his decision is correct, and we adopt it as a proper solution of this question.

We find no material error in the record, and the judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    RALPH HAWKINS v. STATE.

      No. A-739.
    Opinion Filed November 4, 1911.
    (116 Pac. 607.)
    1. TRIAL — Indorsement of Names of Witnesses on Information. ■Under section 6644 of Snyder’s Comp. Laws 1909, it is error for the court to permit a witness to give testimony in chief in behalf of the state, over the defendant’s objection, if the witness’ name has not been indorsed on the information.
    2. SAME. Before the county attorney flies an information, he should indorse thereon the names of all state’s witnesses then known to him; if thereafter he learns of other witnesses, he should obtain leave of court and indorse their names- on the information as early as possible. If, after the trial has begun, the county attorney learns of other witnesses whom he did not know of before, upon a proper showing of that fact made to the court, leave to indorse the names, even while the trial is in progress, and to permit the witnesses to testify, may be granted by the court in the exercise of its discretion.
    (Syllabus by the Court.)

      Appeal from Blaine County Court; George W. Ferguson, Judge.
    Ralph Hawkins was convicted of violation of the prohibitory liquor law, and appeals.
    Reversed and remanded.

      I. H. Lookabaugh, for appellant.

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

Upon the trial of this cause, the state placed Tom Dickerson on the witness stand. Counsel for appellant objected to allowing said witness to testify, because his name had not been indorsed on the information, and appellant had no notice that said witness would be used against him. Thereupon the county attorney requested the court to be permitted to indorse the name of said witness on the information, but no showing whatever was made that the county attorney did not know before the trial began that said party would be a material witness for the prosecution. The court permitted the name of the witness to be indorsed on the information, and the witness testified to material facts tending to prove the defendant’s guilt, to all of which defendant reserved proper exceptions. This is not an open question in Oklahoma, and it has been passed upon, not only by this court, but also by the Supreme Court of Oklahoma Territory. In the case of Steen v. State, 4 Okla. Cr. 314, 111 Pac. 1099, Judge Richardson, speaking for the court, said:

“The state introduced one Dan Ezell as a witness in chief against plaintiffs in error, and the latter objected to his testifying on the ground that his name had not been indorsed on the information as a witness. The court overruled the objection and the witness gave damaging testimony against plaintiffs in error. The indorsement of the witness’ name does not appear on the information. Section 6644 of Snyder’s Comp. Laws, relating to the indorsement of the names of the state’s witnesses on the information, is as follows: ‘The county attorney shall subscribe his name to informations filed in the county or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names o'f such other witnesses' as may afterwards become known to him, at such time before the trial as the court may by rule prescribe.1
“Under this statute, it is the duty of the county attorney, before he files the information, to indorse thereon the names of all persons whom he knows or has reason to believe will be called by the state as witnesses to testify in the case in chief: and, if subsequently the names of other witnesses to be used to prove the case in chief become known to him, leave of court should be obtained to place their names on the information, and this should be done and the indorsement made as early as possible before the trial begins. Where, however, after the trial is begun, the county attorney learns of other witnesses in chief, whom he did not know of before, upon a proper showing of that fact made to the court, leave to indorse their names, even while the trial is in progress, and to permit them to testify, may be granted by the court in the exercise of its discretion. This is held by the courts in a majority of the states having a similar statute, and is conceded to be correct by plaintiffs in error in this case. State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Berkley, 109 Mo. 665, 19 S. W. 192; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Rausehkolb v. State, 46 Neb. 658, 65 N. W. 776; State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322; State v. Price, 55 Kan. 606, 40 Pac. 1000; State v. Reno, 41 Kan. 674, 21 Pac. 803; State v. Dowd, 39 Kan. 412, 18 Pac. 483; State v. Taylor, 36 Kan. 329, 13 Kan. 550; Hyde v. Territory, 8 Okla. 69, 56 Pac. 851; Cochran et al. v. United States, 14 Okla. 108, 76 Pac. 672.
“But in the present case the name of the witness Ezell was never indorsed on the information, and the case-made does not disclose 'when the witness was discovered, or that any showing was made by the county attorney to the court that he had just learned of the witness. On the contrary, the circumstances indicate that the prosecution had the evidence of this witness in mind all along in the preparation of- its case. The court therefore erred in overruling the objection.”

But the rule is different in felony cases. These cases come under a different statute. See Vance v. Territory, 3 Okla. Cr. 208, 105 Pac. 307; Stockton v. State, 5 Okla. Cr. 510, 114 Pac. 626.

Upon the authority of Steen’s case, which is based on an arbitrary statute, the court erred in permitting the witness Tom Dickerson to testify against appellant under the circumstances presented in the record.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new 'rial.

ARMSTRONG and DOYLE, JJ., concur.


text:
    J. M. KILLOUGH v. STATE.
    No. A-670.
    Opinion Filed November 4, 1911.
    (118 Pac. 620.)
    1." APPEAL AND ERROR — Supersedeas. The power and authority of trial courts to allow bail pending appeal can only be exercised in the manner provided by statute, and, where the trial court fixes the amount of defendant’s bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given, and the time within which the petition in error shall be filed in the Criminal Court of Appeals; otherwise such an appeal bond shall not be effective as a supersedeas.
    2. SAME — Record—Filing and Service. Where a defendant fails to make and serve a case-made or transcript within the time allowed by the statute or within such extended time as may be allowed by the trial court or judge thereof, or where he fails to file his petition in error in the Criminal Court of Appeals within the time fixed by the court, he thereby waives his right to have the execution of the judgment stayed pending the perfection of his appeal, and any bail bond given ceases to be effective as a supersedeas upon such failure to comply with the orders of the court. It is then the duty of the trial court to have its judgment carried into execution.
    S. SAME — Record—Questions Presented for Review. In the absence from the record of all the evidence taken upon the trial, a general exception to all the instructions of the court, specifying no particular error or errors, will not be considered on appeal unless fundamental error is apparent.
    4. SAME — Review—Presumptions—Sufficiency of Evidence. In the absence of all the evidence taken upon the trial from the record filed in this court, the presumption will be that the evidence was amply sufficient as to the guilt of the defendant of the offense charged.

      5. SAME — Record—Sufficiency. It is the duty of a court of last resort to see to it that a person convicted of crime was accorded a fair and impartial trial and the enjoyment of every legal right. However, in order to secure this determination, the appeal must be taken in the manner prescribed by law, and the record before the appellate court must be sufficient to enable it to properly pass upon the errors assigned In the petition.
    6. SAME — Review—Burden of Showing Error. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.
    7. TRIAL — Instructions—Construction as a Whole. When the instructions as a whole, taken and considered together, embrace the law of the case, though one of them may be erroneous, still for such error a judgment of conviction will not be reversed unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems" probable that injustice may have been done.
    (Syllabus by the Court.)

      Appeal from District Court, Beaver County; R. H. Loofbourrow, Judge.

    J. M. Killough was convicted of burglaxy in the first degree and sentenced to imprisonment for 12'years, and appeals.
    Affirmed.

      Dickson & Dickson (Harris & Nozvlin and Kenneth C. Crain, of counsel), for plaintiff in error.

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

The plaintiff in error was indicted in the district court of Beaver county for the crime of burglary in the first degree. The charging part of the indictment is as follows:

“That J. M. Killough, late of the county and state aforer said, on or about the 30th day of June in the year one thousand nine hundred eight in the said county of Beaver, and state of Oklahoma, did then and there unlawfully, wilfully, burglariously and feloniously break into and enter, in the night-time of said day by opening a window, the dwelling house, of another, to wit, the dwelling house of J. A. Barker, in which there was then and there at the time some human being, to wit, one Lucy Wilson, with the unlawful, wilful and felonious intent then and there to commit some crime therein, to wit, with the unlawful, wilful and felonious intent then and there to have unlawful carnal sexual intercourse with her, the said Lucy Wilson, she the said Lucy Wilson then and there being a female under the age of sixteen years and not the wife of him, the said J. M. Killough, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

Upon his trial the jury returned a verdict of guilty and fixed his punishment at imprisonment for 12 years in the penitentiary. In conformity thereto judgment and sentence was rendered and entered on March 20, 1909. The court also made an order giving 30 days in which to make and serve a case-made, and 20 days in which to suggest amendments. On March 19, 1910, a petition in error with a transcript of the pleadings, the instructions of the court, and the judgment and sentence were filed in this court.

It appears from the transcript that at the time of entering judgment the court fixed the amount of the defendant’s appeal bond in the sum of $2,500. The fixing of this amount, so obviously insufficient considering the judgment and sentence, is inexplicable. The transcript does not show that the trial court fixed a time within which such appeal bond should be given, nor the time for filing the petition in error in the .Criminal Court of Appeals. It further appears that on April 12, 1909, an appeal bond in said sum was given, and approved by the clerk of said district court.

If the crime of which the defendant is convicted be a bailable one and the trial.court fixes the amount of the defendant’s bail bond to be given as a supersedeas on appeal, it must fix the time within which such bond shall be given, and the time in which the petition in error shall be filed in the Criminal Court of Appeals; otherwise such bail bond shall not be effective as a supersedeas.

The power and authority of trial courts to allow bail and to fix the amount of the bail bond pending appeal can only be exercised in the manner provided by statute (section 6951, Snyder’s Stat.), otherwise a plaintiff in ’error, when he has perfected his appeal, must apply to this court for a supersedeas order fixing the amount of his bail bond.

Where the defendant fails to make and serve a case-made or transcript within the time allowed by the statute, or within such extended time as may be allowed by the trial court or judge thereof, or where 'he fails to file his petition in error in the Criminal Court of Appeals, within the time fixed by the court, he thereby waives his right to have execution of the judgment stayed pending the perfecting of his appeal, and any bail bond given ceases to be effective as a supersedeas. Upon a failure to comply with such orders of the court, it then is the duty of the trial court to have its judgment carried into execution.

Whether or not, upon the failure 'to make and serve a case-made within the time allowed by the court, the judgment in the •case at bar was carried into execution, does not appear from the record. It is important to note that this appeal was not filed in this court until the last day but one of the 3rear allowed under the old law for taking appeals, and then only a partial transcript of the record was filed. The brief of the learned counsel for defendant presents two assignments of error, based on two of the instructions of the court.

The record shows that only 'the following exception to the instructions was taken: “The defendant excepts to each and all of the foregoing instructions.” A general exception such as this specifying no particular error or errors in the instructions given, in the absence of all the evidence introduced upon the trial, will not be considered on appeal, unless fundamental error is apparent.

Section 6857, Snyder’s Stat., provides:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and request that it be given. If the court thinks. it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or .refused-the court must indorse or sign its decision. If part of any written charge be given and part refused the court' must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”

In the case of Buck v. Territory, 1 Okla. Cr. 517, 98 Pac. 1017, Presiding Judge Furman used the following language:

“We think that this practice is to be condemned. We regard it as unfair to the trial judge, and unjust to the state. In one paragraph of an instruction, as a mere matter of inadvei’tence, an error may have been made which, if specifically called to the attention of the court, would have been corrected; but, unaer the practice approved, but not commended, a defendant, by stating that he ‘excepts to each and every and all of the instructions given by the court separately,’ can cover up his real exception, and, if the hazard of the legal battle turns against him, he can in the appellate court abandon his other exceptions, and rely alone upon the inadvertent error, and thus defeat the ends of justice and secure a reversal at great expense to the state, when, if . he had presented his real objection openly and fairly and in good faith, the trial court would have corrected the error before harm was done. . This practice enables designing lawyers to dig pitfalls and lay ambuscades for the trial court. No end of justice is promoted by this rule. It cannot serve a single fair purpose in the trial of a case, and results in evil and injury, rather than a fair play and justice. The purpose of an exception is twofold. It should notify the trial court of the specific objection relied upon. The presumption of law is that no judge commits wilful error. If his attention is called to the specific objection, the presumption of law is that he will correct any error that may be pointed out. If the court fails to make the correction, then the exception preserves the matter alleged to be error, for review in this court. Unless the trial court is put upon notice of the specific point relied upon as error, and if such point can be pointed out for the first time in' this court, then this is a court of original jurisdiction, when, as a matter of fact, as to such matters, this court has appellate jurisdiction only. The competent and careful lawyer investigates the legal questions involved in ■his cases before he tries them, and should be able to detect and except to errors in the instructions given at the time. Any fair judge should, and doubtless would, give reasonable time in which counsel can look over and note exceptions given before they are read to the jury. A refusal to do this would render the trial unfair, which would be in violation of the Constitution, which guarantees to every defendant a fair trial, and would be ground for reversal, if it appeared that any portion of the instructions given were prejudicial to the defendant. It may be urged that the practice saves time. It may save a little time during each trial, but it may result in the loss of much more time, and in great expense to the state, and in the defeat of justice, by requiring the reversal of cases on account of the errors which would have been cured if the attention of the trial court had been specifically called to them in apt time. Lawyers should present questions fairly and fully in the trial court. They should do this as an act of justice to themselves, opposing counsel, the trial judge, and the state of Oklahoma. To say that an exception is taken to each, and all, and every paragraph, in instructions given to a jury separately, amounts only to a general exception, unless shadow is of more value than reality. Such exceptions do not carry the stamp of good faith upon their face. It is not believed that such exceptions are taken because counsel honestly believed that there was error in each paragraph in an instruction to a jury. It is an ambush, a subterfuge, a mockery, a snare, and a delusion. We are discussing the principle involved in this practice, and are showing its rank injustice. No personal reflections are intended to be cast upon counsel. We are simply pointing out the abuse which will creep into our system of criminal jurisprudence if this practice is allowed to be continued.”

Unquestionably it is the duty of a court of last resort to see to it that a person convicted of crime was accorded a fair and impartial trial, and the enjoyment of every legal right. However, to secure this determination by a court of last resort, an appeal must -be taken in the manner prescribed by law, and the record before the court must be sufficient to enable the court to properly pass upon the errors assigned in the petition.

Error must affirmatively appear from the record. It is never presumed. Every presumption is in favor of regularity of the proceedings had upon the trial. The general rule often announced by this court is that the plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the lower court will be affirmed.

In the absence of a transcript of the evidence or any part thereof in the case at bar, the presumption is that the evidence was amply sufficient as to the guilt of the defendant of the offense charged.

The position assumed by counsel for the defendant is that,. if error is found in the instructions, the judgment of conviction must then be reversed, whether such error operates to the prejudice of the defendant or not. Such is not the law in this jurisdiction. In many cases determined by this court, the contrary doctrine is announced. This court has often held that when the instructions as a whole, taken and considered together, embrace the law of the case, though one of them may be erroneous, still, for such error, a judgment of conviction will not be reversed unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems probable that injustice may have been done. The instructions here, taken as a whole, substantially and fairly present the law of the case. That is sufficient, and for the reasons stated we shall not attempt to decide whether or not the instructions complained of were erroneous.

On the partial record before us we will not disturb the verdict and judgment. Sufficient to say that we find there is no such prejudicial error therein as will justify a reversal thereof.

The judgment of the district court of Beaver county will therefore be affirmed.

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


text:
    HENRY FLANDERS v. STATE.
    No. A-730.
    Opinion Filed November 8, 1911.
    (118 Pac. 593.)
    1. APPEAL AND ERROR — Review—Sufficiency of Evidence. Where the evidence is conflicting, and that on behalf of the state such that, if believed by the jury, a verdict of guilty should result, the judgment of conviction will not be' reversed on the ground that the verdict is contrary to the' evidence and weight of the evidence.
    2. APPEAL AND ERROR — Review—Sufficiency of Evidence. The correctness of á verdict which has been sustained by the trial court will not be reviewed on appeal on arguments directed to the credibility of a witness or the weight to be given to his testimony.
    (Syllabus by the Court.)

      Appeal from Craig County Court; Theo. D. B. Frcar,, Judge.

    Henry Flanders was convicted of violation of the prohibition law, and appeals. ■
    Affirmed.
    The plaintiff in error was indicted in the district court of Craig county, wherein he was charged with unlawfully selling whisky to one Noah Miller. The indictment was duly transferred to the county court of Craig county. Upon his trial he was found guilty, and, on February 21, 1910, was sentenced to'be confined in the county jail for a term of 30 days, and pay a fine of $50.
    The evidence is substantially as follows: Noah Miller testified for the state that he lived at Wimer, and had been acquainted with the defendant for about four years; that about the time alleged in the indictment he went to the defendant’s home on Brush creek; that Cale Chance was with him; that it was about 9 o’clock in the morning when they arrived at the defendant’s house; that the defendant was at his barn; that witness asked him for some whisky, and defendant said he had some, and went and brought two quarts, for which he paid him $4; that Cale Chance and witness drank all of the whisky. On cross-examination, he admitted that he was drunk on the day he appeared as a witness before the grand jury.
    On his own behalf, the defendant testified that he lived on a farm 28 miles north of Vinita, in Craig county. Was acquainted with Noah Miller. That he was at his home some time in August. Came there about 10 o’clock at night. Said he was pretty near starved to death. That he gave him a drink, and gave him supper. That he was at that time making hay. That Miller stayed that night with thé hired hands in his barn, and did not leave until the next morning after breakfast. That he did not sell him any whisky, and had nothing to. do with selling whisky.
    From an order overruling a motion for a new trial, an appeal was taken by filing in this court, on April 21, 1910, a petition in error with case-made. ' •

      James S. Davenport, for plaintiff in error.

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

(after stating the facts as above). It is only necessary to consider the first two assignments of error:

“That the verdict is contrary to the law, and to the evidence and weight of the evidence.”

It is true the evidence against the defendant is weak and somewhat contradictory. For this reason, we have carefully scrutinized the record for errors of law, but we have failed to find any. The rulings of the court upon the trial were eminently fair, and the instructions given by the court were clear and correct, and fully present the law of the case. This is all that is necessary to say in response to the criticisms upon the instructions in the defendant’s brief.

It is insisted that the evidence is insufficient to sustain the verdict, and that the trial court erred in overruling the motion for a new trial, for the reason that the state’s witness, Noah Miller, was in such a drunken condition when he testified as to render him incompetent as a witness. It is shown by the record that there was no objection interposed as to the competency of this witness when he testified. The motion for a new trial contains a statement that the court reprimanded the witness for coming on the witness stand in such a condition, but the record does not support this statement. Where a new trial is asked solely upon the ground that the verdict is contrary to the evidence, great weight is always given, and justly so, to the verdict of the jury and the judgment of the court sustaining the same, and the cases are few in which this court has interfered. Under the rules of law, it is the exclusive province of the jury to determine whether the evidence tending to prove the guilt of the defendant is so lacking in convincing force as to leave an intelligent and discriminating mind no doubt as to the truth of charge; and in reviewing questions of fact upon appeal to this court, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly contrary to the weight of evidence, or appears to have been rendered under the influence of passion or prejudice.

There was a flat contradiction between the testimony of-the witness for the state and the defendant’s testimony on his own behalf. It was for the jury to judge of their credibleness, and having done so, and their verdict having received the approval of the trial court in overruling the motion for a new trial, this court will not review the record for the purpose of determining the weight and sufficiency of the evidence. The correctness of a verdict which has been sustained by the trial court will not be reviewed on appeal on arguments directed to the credibility of a witness, or the weight to be given to his testimony.

We are clearly of the opinion that the defendant had a fair and impartial trial. The judgment of the county court of Craig county is therefore affirmed.

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