text:
    MINNIE ALLEN v. STATE.
    No. A-2702.
    Opinion Filed June 14, 1917.
    (165 Pac. 745.)
    1. TRIAL — Reception of Verdict — Delegation—Statute—Consent to-Discharge of Jury. Where, during the trial of a homicide case, the jury having retired to deliberate on their verdict, the judge was incapacitated from further proceeding with the trial on account of sickness, and by agreement of the parties he designated an attorney of the court to receive the verdict of the jury;
    Held, that the reception of the verdict in a criminal case is a judicial act, which cannot be delegated, and a verdict so received is a nullity, and that no judgment of conviction could be lawfully pronounced upon such verdict.
    Held, further, that the discharge of the jury under such circumstances must be deemed to have been with the consent of' the defendant.
    2. SAME — Illness of Judge Preventing Return of Verdict — Retrial. Where a jury impaneled and sworn in a criminal case is prevented from returning a verdict by reason of illness of the presiding judge, incapacitating him from attending to the duties of' the trial,'the case may be again tried.
    3. SAME — Former Jeopardy — Acquittal—Hlegal Verdict — New Trial —Constitutional Provisions. A judgment of conviction based on. an illegal verdicts,will not operate as an acquittal, either before or after reversal on appeal, and a new trial in such a case after reversal of such judgment, on defendant’s appeal, is no infringement of the clause of the Constitution which declares that “Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” Const, art. 2, sec. 21.’

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    Minnie Allen was convicted of manslaughter in the. first degree, and she appeals.
    Reversed.

      J. M. Springer and Robert A. Lowry, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst.. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Minnie Allen, was tried in the district court of Payne county upon an information jointly charging her and George W. Carpenter with the murder of one Tom Oglesby, alleged to have been committed in the said county on the 18th' day of May, 1915. Upon her separate trial she was found guilty of manslaughter in the first degree, and her punishment fixed at eight years’ imprisonment in the penitentiary. From the judgment réndered in pursuance of the verdict she appeals.

It appears from the record that on the 15th day of October, 1915, the cause was submitted to the jury, and •they retired in' charge of a bailiff to consider of their verdict, and the court thereupon recessed; that Judge Huston, presiding judge, became seriously ill that evening, and, in view of such illness, it was agreed between the county attorney of P.ayne county and the attorneys for plaintiff in error that, in the event it became necessary for Judge Huston to return to his home in Guthrie before the jury had returned a verdict, Robert A. Lowry, an attorney at the bar of Payne county, should act as special judge for the purpose of receiving the verdict of the jury; that Judge Huston left Stillwater on the morning of the 16th day of October before said jury had returned their verdict; that about an hour later the jury came into the court room in charge of their bailiff, and in accordance with the aforesaid agreement, Robert A. Lowry convened court and inquired ■of the jury if they had agreed upon a verdict. The jury answered they had. Robert A. Lowry received their verdict and delivered the same to the court clerk. After the verdict was read and the jury polled, Robert A. Lowry ordered the clerk to.record the same and have the record show that all proceedings had and done by Robert A. Lowry in said case were in effect had and done by the district judge, present in his own proper person. On October 19th Judge Huston, returning to Stillwater, opened court, and overruled plaintiff’s motion to require the court clerk to correct the record in the case to show the facts. See Allen v. Huston, Judge, ante, p. 522, 165 Pac. 742. On the same day motions for new trial and in arrest of judgment were overruled, and in pursuance of said verdict the judgment appealed from was rendered.

It is contended by the plaintiff in error that upon the record the trial court lost jurisdiction during the trial by reason of the fact that the trial judge absented himself from the place where court was being held while the jury was deliberating upon their verdict, and that the plaintiff in error waived none of her fights by reason of said agreement, and that she was entitled to be discharged upon her motion in arrest of judgment. The Attorney General has filed a confession of error and motion to remand the cause that it may be again tried.

Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. In many cases this court has held that it is the duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him, and when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed. Stiles v. State, 9 Okla. Cr. 596, 132 Pac. 822; Wright v. State, 7 Okla. Cr. 280, 123 Pac. 434; Cochran v. State, 4 Okla. Cr. 380, 111 Pac. 974. It is a fundamental principle of law that judicial power cannot be delegated, and a verdict of conviction, to be of any validity, must be delivered in open court.

Under the following provisions of our Procedure Criminal the presence of the presiding judge during the entire course of the trial is essential, and the receiving of the verdict is a judicial act, which cánnot be delegated:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agre'e without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.” (Section 5906, Rev. Laws 1910.)
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of .the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant-or nis counsel, or after they have been called.” (Section 5913.)
“If, after the retirement of the jury, one of them becomes so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be discharged.” (Section 5914.)
“Except’as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.” (Section 5915.)
“In all cases where a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment or information, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct.” (Section 5916.)
“While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged.” (Section 5917.) •
“When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the.reason for .that opinion, and. direct the jury to reconsider their verdict, and if,' after the reconsideration, they return the same verdict, it must be entered,” and “if the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it.” (Sections 5925 and 5926.)
“When a verdict is rendered, and before it is recorded, the jury, may be polled on the requirement-of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in tne negative, the jury must be sent out for further deliberation.” (Section 5928.)

Under these provisions, after the retirement of the jury to deliberate and until a verdict is rendered, or the jury discharged in, due course of the law, it is the duty of the presiding judge to be where he can respond to any call for the exercise' of his judicial authority, and thus give protection and security to all parties interested or concerned in the result of the trial, and such judge cannot delegate these judicial functions to another, even with the consent of the parties. It is well settled that in prosecutions for felonies the continuous presence of the judge during the entire course of the trial is indispensable, and that whether objection be or be not made, a conviction will be reversed in the case of his improper absence.

In Meredith v. People, 84 Ill. 479 (2 American Crim. Rep. 448), which was an indictment for murder, it was held:

“The trial judge must occupy the bench throughout ■the entire trial, which ■ includes the argument of counsel. 'Where it is made to appear that, for two days during the argument, the judge was not in the courtroom, but in another part of the building, engaged in other business, and that members of the bar presided in his place, the verdict will be set aside, although this was done by consent of the respondent’s counsel, or even by his own consent. The. accused cannot waive, the presence of the judge -during his trial.”

In Ellerbe v. State, 75 Miss. 522, 22 South. 950, 41 L. R. A. 569, it was held:

“One prosecuted for crime is entitled to have a legally ■constituted court at every stage of his trial, and where the ■presiding judge calls a member of the bar to the bench, and, by consent of counsel, leaves the courthouse for some minutes during the concluding argument for the state, the judgment of conviction will be reversed on appeal of the accused, notwithstanding the waiver of objection by his counsel.”

In Durden v. People, 192 Ill. 493, 61 N. E. 317, 55 L. R. A. 240, where it appeared that one circuit judge heard the evidence and a part of the argument of counsel, and then vacated the bench as presiding judge and left-the county and thereafter took no part in the trial of the cause, nor in any of the other proceedings therein, until the hearing of the motion for a new trial, which he overruled, the judgment, for this reason, was reversed. The court used the following language:

“In our view, it makes no difference that another circuit judge of equal power and jurisdiction was presiding in place of the absent judge, if he had no such knowledge of the testimony, already given upon the witness stand, and of the proceedings, already taken in the-cause, as to be able to direct and control the arguments of counsel when they pass beyond proper limits, and to determine whether or not the instructions to be given to the jury are based upon the evidence already heard in the presence of the jury. -* * * In the case at bar, there was no death, nor sickness, which justified the judge who conducted the trial in vacating the bench. It does noT appear for what reason he abandoned the trial of the cause and turned it over 'to another judge. But, even if he went into another county in order to attend to other business upon his circuit, as is alleged by the Attorney General., there was no official business which more-properly demanded his attention than the trial in hand, which involved the life of a human being. * * *" Hence, when he was absent from the bench, the authorities, which hold that absence from the bench is error such as justifies a reversal, are strictly applicable to his conduct. His absence was not excused by the fact that another judge,, not familiar with the evidence, instructed the jury and received the verdict. The injury, which may have inured to the interests of the plaintiff in error, was not counterbalanced by the presence of a new and outside-presiding officer.”

In People v. McPherson, 74 Hun, 336, 26 N. Y. Supp. 236, it was held that a criminal case cannot be partly tried before one magistrate and partly before - another, and it. was there said:

“The proposition that a criminal case cannot be partly tried before one magistrate and partly before another seems to me too clear to need argument or citation of. authority to sustain it. When the trial of a case has once commenced- it must proceed 'to the end before the same court and jury.”

See, also, O’Brien v. People, 17 Colo. 563, 31 Pac. 230 ; Hayes v. State, 58 Ga. 35; McClure v. State, 77 Ind. 287; State v. Carnagy, 106 Iowa, 487, 46 N. W. 805.

In Ex parte Patswald, 5 Okla. 789, 50 Pac. 139, speaking thorugh Mr. Justice Tarsney, the court said:

“The one question to be determined is:' Did the absence of the presiding judge discharge the jury from the consideration of the cause and, by operation of law, terminate the trial of the cause so as to render void the further proceedings had therein? By law, the terms of the district court of Oklahoma county are fixed to be held at Oklahoma City, and cannot be held at any other place. No person can be lawfully deprived of his liberty except ‘by due process of law.’ Due process of law would, in this case, imply upon conviction by a court of competent jurisdiction. A court of competent jurisdiction for the trial of the crime of perjury consists of a presiding judge and a jury. It is not a court unless there be both judge and jury. It is the very existence and vitality of the court which authorizes the jury to deliberate. It is the existence and authority of the court which’keeps them together, and that existence and authority must continue from the time they are impaneled until they are discharged. Barrett v. State, 1 Wis. 156 [175]. For all general purposes the court is considered as in session from the commencement to the close of its term. The jurors, officers and parties are all under its direction. -The functions of the - court cannot be suspended and the functions of the jury continue. To hold the contrary would be to throw off all those salutary restraints which have been found necessary to the due and solemn administration of justice. The jury are under the control and protection of the court. * * * The jury may, while deliberating, properly require of the court additional instructions as to the law of the case, or require of the court explanation of the meaning of the- instructions given. They may, in the presence of the court and by permission of the court, have their memories refreshed as to the testimony in the case. All these privileges and safeguards are in great measure for the protection of the rights of the defendant, and nothing but the existence and presence of the court during every part of the proceedings of his trial can insure them to him. * * * The presence, actual, or constructive, of a judge at every stage of the proceedings in a court is necessary, or the proceedings will be coram non judice; the law requires his presence during each and every step. * * * He may take a recess or adjourn as to all other business from day to day, or for rest or refreshment, but he cannot suspend the functions of the court as to the -case on which the jury are deliberating. He need not remain actually on the bench or in the courtroom, but he must remain where he may exercise his functions as a court; that is, at the place where the court is by law required to be held. He cannot be at another place or engage in another business which precludes the exercise ■of such functions. * * * The court cannot be adjourned or its functions suspended as to the cause submitted to the jury. It is constructively open even though the judge be resting or refreshing himself; but to be constructively open the judge must be at the place where the law requires it to be kept open. If the judge should die after a cause was submitted to a jury, we do not think a verdict could' be returned by the jury after a successor had been appointed and assumed the functions of the court. The death of the judge would render the jury, as to the ■cause, functus officio; and absence from the place where, by law, the court is required to be held, or other cause which dissolved the organization of the court, or suspended or prevented the exercise of its functions, would have the same effect as the death of the judge. The termination of the court by operation of law destroys the power of the jury to exist as a part of the court and discharges the jury. State v. Jeffors, 64 Mo. 376. With the termination of the court the jury is discharged by operation of law, and it can then neither make nor return a. verdict.”

It appears from the record that in the case at bar the-jury were without any judicial supervision whatever from the time the presiding judge left the county until they returned their verdict, and then, by consent of the parties, Robert'A. Lowry, a practicing attorney of the court, assumed to act as .special judge for the purpose of receiving-the verdict and discharging the jury. Applying the well-established rules of law enunciated in the cases quoted, we are of the opinion that the verdict of the jury was a. nullity, and that no judgment of conviction could be lawfully pronounced on it by the court. It follows that the confession of error is well founded, and should be sustained.

It is now insisted that the plaintiff in error was, by the proceedings of that trial, once in jeopardy, and cannot lawfully be put upon trial the second time. It is a well-settled principle of common and constitutional law that a person cannot be put in jeopardy a second time upon the same charge. Article 2, sec. 21, Constitution of this state, declares:

“Nor shall any person, after having been once acquitted by'a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life and liberty for the same offense.”

It is well established that after the jury has been impaneled and sworn in a criminal case any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, expressed or implied, of the defendant. I Bish. New Crim. Law, sec. 998.

In Cooley’s Const. Lim. (7th Ed.) p. 467, the author .says :

“A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause. If, however, the court had no jurisdiction of the cause, or if the indictment was so far defective that no valid judgment could be rendered upon it, or if by any overruling necessity the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the ■court, or of a juror, or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort, or if the term of the court as fixed by law comes to an end before the trial is finished, or the jury are discharged with the consent of the defendant expressed or implied, or if, after verdict against the accused, it has been set aside on his motion for a new trial, or on writ of error, or the judgment thereon been arrested — in any of these cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection.”

The discharge of the jury under the circumstances of this case must be deemed to have been done upon the agreement and with the consent of the plaintiff in error. Again, the statute prescribes (section 5916, supra) that, in all cases where the jury are discharged, or prevented from giving a verdict by reason of an accident or other cause, after the cause is submitted to them, the cause maybe again tried at the same or another term, as the court may direct. The record shows, and counsel for the plaintiff in error concede, that the sickness of the presiding-judge was such that it unfitted him for the further performance of his duties in the trial of the case.

The word “accident,” as used in this section, is variously defined as an event happening unexpectedly and without fault, or as an undesigned and unforeseen occurrence of an afflictive or unfortunate character; a casualty or mishap. Under the foregoing principles and authorities, the discharge of the defendant on the claim of once in jeopardy should be denied in any aspect of-the case contended for by her counsel.

For the reasons stated, the judgment of conviction is reversed, and the case remanded for a new trial. The warden of the penitentiary at McAlester will surrender the plaintiff in error to the sheriff of Payne county, who will hold her in custody until she shall be discharged, or as otherwise ordered according to law.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
      Ex parte MINNIE ALLEN.
    No. A-2627.
    Opinion Filed June 14, 1917.
    (165 Pac. 748.)

      Habeas corpus by Minnie Allen.
    Writ denied.

      Robert A. Lowry, for petitioner.

      The Attorney General and R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

A petition is presented in this case for a writ of habeas corpus, directed to the warden of the state penitentiary at McAlester, for the discharge of Minnie Allen. The petitioner was convicted in thé district court of Payne county of manslaughter' in the first degree,' and was sentenced, as the record shows, to imprisonment in the state penitentiary for the term of eight years. The case out of which this proceeding grows was before us by direct appeal. By the decision of this court the judgment of the district court of Payne county was reversed; For the reasons stated in the opinion in that case (Minnie Allen v. State, ante, p. 533, 165 Pac. 745), the petition for writ of habeas corpus will be denied, and it is so ordered.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    DENNY SWAN v. STATE.
    No. A-2552.
    Opinion Filed June 16, 1917.
    (165 Pac. 627.)
    1. HOMICIDE — Self-Defense—Intent. An instruction given by the court which charges the jury, “If you believe that the defendant armed himself and sought the deceased for the purpose of provoking and engaging in a difficulty, and in furtherance of such plan did invite and provoke a difficulty, and then and there shot and killed his adversary, the defendant cannot invoke the rights of self-defense,” is fundamentally wrong. The difficulty must be prepared for, sought and provoked for the purpose of and with the intent upon the part of accused to take the life of his adversary. It is therefore necessary for the court, in submitting a charge of this character, to place the burden of the instruction upon the intent of the defendant at the time.
    2. HOMICIDE — Instructions—Degrees—Evidence. When there is no evidence which directly or indirectly raises the issue of negligent homicide or manslaughter in the second degree, instructions submitting the question of guilt or innocence of this crimt should not be included in the charge of the court in submitting the issues to the jury. The charge of the court should give the law applicable to the issues raised by the pleadings and the facts.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

    Denny Swan was convicted of manslaughter in the second degree, and appeals.
    Reversed.

      Womack & Brown, H. H. Brown, and A. K. Swan, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Denny Swan, was tried in the district court of Stephens county on a charge of murder and convicted of manslaughter in the second degree. His punishment was fixed at two years in the state penitentiary. To reverse this judgment an appeal was duly brought to this court.

The evidence discloses the fact that Denny Swan, the plaintiff in error, and Bill Hodge, the deceased, were farmers and were engaged in the stock- business in a small way; they lived in the same neighborhood near Ara, in Stephens county; they had been friends for some years; a few weeks before the homicide ill feeling had grown up between them. • They lived on adjoining farms and each had complained against the other on account of depredations stock had committed against their growing crops. Other matters also entered into the estrangement. State’s witness O. L. Turner was a farmer and stockman who lived in the same community. He had rented a pasture from Swan. On the day of the homicide Hodge drove a number of cattle out of his field on to land of1 Swan, and met Turner, who told him the cattle did not belong there. Swan came up and spoke to witness, and after a short conversation, turned to the deceased, Hodge, and said, “What the hell are you doing throwing those cattle over here on me?” Hodge replied that he thought they belonged to him. Swan made a sharp* reply, which was not understood by the witness. Hodge answered by saying that Swan’s cow had been depredating on him. Swan replied that- he had yoked her, and deceased replied, “You did, but you were a long time about it.” A few words more were passed between the two, and Swan said, “You God damned fellows have been punching, me around a long time.” Hodge replied, “What the hell have we been punching you about?” Swan said, “You accused me of horse stealing and a little of everything.” Hodge replied, “You damn sure did steal a horse.” Swan said, “I did not steal any horse.” Hodge said that he did and he knew it. Swan said they- had been trying to give him dirt a long time, but could not find anything to give him dirt about. Hodge said, “You have been gambling here a long time.” Swan said, “Yes, by God, you have, too,” and Hodge said something about turning him in for it,, and Swan said, “You would have to turn state’s evidence if you did.” Swan then complained that Hodge’s hogs had been bothering him. Hodge said that his hogs had not been over there; that those were his neighbors’ hogs. Swan said Hodge was a damned liar. They were about ten feet apart at the time. When Swan called Hodge a damned liar, Hodge did not say anything, but reached back as if to draw a gun. Witness saw the handle of the same plainly. It was a black handle. He put his hand on it. Swan leaned over and said, “What are you going to do?” and stepped back and shot. When the shot was. fired Hodge’s horse turned around, as did the horse of the witness. It seems both were on horseback. When witness looked around Hodge was falling off his horse. Swan was standing about where he was when he shot. Four or five shots were fired rapidly, so rapidly that the witness could not indicate how fast. He said he did not believe he could clap his hands as fast as the shots were fired. He rode up where Hodge had fallen and asked if he was hurt, but received no answer. About the time Hodge fell from his horse, Swan said, “Now try to make another gun play, God damn you.” Witness told Swan fie was going to get some one there, and Swan told him to get whom he pleased.

Witness Stewart testified that he lived in the neighborhood and that he went to the scene of the homicide and examined the body for wounds; that there were five wounds, one shot through the arm into the body and two through the body; that he found a pistol five steps east of where the body lay; that it was a 38-caliber Colt with a black handle, lying on the ground with the right side up and cocked; that there was mud between the hammer and where the hammer goes in to shoot, and some mud on the handle; that it did not look like any one had bothered it; that it was lying just like it fell; that the ground was soft and it had been raining; that he saw no tracks around the scene of the killing and saw no imprints of shoes or boots.

Sam Sherrell testified for the state:

That he was working about T90 steps from where the homicide occurred; that he saw deceased and Turner there on horseback; that he did not see Swan until after the shooting, and when the shooting took place, he ran up there and went to within 30 steps of them, turned around the corner of the fence, and went to the house; that he was afoot arid running; that he saw the deceased fall from the horse. “Q. Describe to the jury how he fell? A. I will describe it just like I seen it. When the shooting was over I didn’t know for a minute whether anybody was shot or not, because Hodge never fell off of his horse until the horse had taken a few steps down the fence. His horse turned and started off in a walk. He dropped his bridle reins that way. He went a little bit forward, his foot came out of the stirrup, his hand came back this way, and he went off backward. I saw the body when I got some closer to where it was. His head was right due east; he was on his side; his face turned north. I never went out there, never heard Turner say anything. When I first seen Swan he was standing there. Q. Did you hear him say anything else? A. Yes, sir. Q. What was it? A. Well, sir, I seen Denny Swan, if he is the man that killed Will Hodge, the man that shot Will Hodge off of his horse, deliberately walk up to him, take his hand here, and folded his coat back, or held the scabbard in its place and taken something off of him, and turned to Turner and said, ‘Why the hell don’t you go on?’ Turner jerked his horse and kicked him, and turned his horse southeast. Denny walked and throwed that pistol down there, and says, ‘Damn you, take that.’ Gentlemen, that is the truth. Meantime Turner turned right around up the fence up to the house, up to the gate. Turner rode out on the west side of the body. Denny holloed to him, ‘Is he dead?’ Turner said, T think he is.’ Denny says, ‘That is all right if he is dead.’ Mrs. Swan was at her mother’s.”

On cross-examination the witness testified that the defendant never had said anything to him about Hodge; that" he had never threatened him in any way or said anything about the matter; that he did not see him to talk with him until after the examining trial; that he was in jail and he could not see him. He admitted that he told a different story at the examining trial and identified the statement that he gave the county attorney before the examining trial, which is as follows:

“I saw some men walking about 300 yards away, but could hear nothing, heard shots, saw Hodge fall off horse, saw gun go back from his right hand. Flavious Hodge forbade me coming up there; worked for Swan’s father. Denny telephoned have dinner ready for him and another man, about dinner that day.”

The substance of this witness’s testimony at the examining trial is as follows:

“I was working in a clearing 290 steps away from where the killing occurred. I saw only two men on horses until the shooting was over. I heard the shooting. 1 saw Hodge fall off his horse. He fell back over his horse’s hips. The horse turned this way, and he fell that way. I went to the house as quick as I could. I found Swan at the house. When I got there I found Denny telephoning. I said, ‘Where are you going?’ He said, T am going to Duncan.’ Did not talk to Swan’s folks that day, but did that night. I was terribly excited. I saw what I took to be a pistol fall to the ground. I did not go to the body; I went along the road close by a little while before it was taken up, his head was pointed to the east, and saw out east of his head what I took to be a gun.”

On redirect examination he said:

“I was 290 steps away from the killing. I went up tolerably close to the body. As I went up to the house, Turner rode out there from the gate, and I asked him what it was. I got in about 40 steps of the body. Turner had rode out on the west side of it. Q. Are you going to swear that you saw a gun in that man’s hand? A. Yes, sir.”

A few other witnesses testified to matters of minor importance.

At the close of' the state’s testimony a demurrer to the evidence was interposed and a motion to advise the jury to render a verdict of not guilty was filed. Both were overruled and exceptions saved.

A number of witnesses testified in behalf of the defendant to facts tending to establish ill feeling between plaintiff in error and the deceased, the condition of the ground at the scene of the homicide, and the wounds on the body of the deceased. There was practically no conflict in this respect.

The plaintiff in error testified for himself:

That he was 35 years old; that he had lived in the community 12 or 13 years on a farm there; that on the day of the homicide he saw Turner riding in the pasture about 100 yards away from his house, talking to some one; that when he got out in the yard he saw it was Hodge with him; that he went out to where they were and spoke to them; that after some conversation he asked Hodge if the cattle had been breaking in on him, and he said they had, and witness asked him what he was going to do with them, and he said he brought them up to throw them in, and witness asked him what he was going to throw them in there for, and he said “that there was no son of a bitch’s cattle going to eat up his crop, and I told him that my cattle had not bothered him, and he said I had a cow that had been breaking in on him, and I told him, ‘Yes; but I had yoked her,’ and he said, ‘You did, but you have been a long time about it,’ and there was something said about the cattle belonging in there, and I said, ‘You fellows have been punching me around a long time,’ and he said, ‘What for?’ and I said, ‘You accused me of stealing a horse,’ and he said, ‘Yes; we did accuse you of it, and you stole it, and you know it,’ and something was said about gambling and I told him he was threatening to have me arrested for gambling, and he said, ‘Yes; you have been gambling a long time, but you are going to get the worst of it this time,’ and I told him that if he turned me in he would have to turn state’s evidence, that I had never gambled that he knew of unless he was with me at the time, and I told him that these catt’e he claimed had been breaking in on him were Turner’s and Humphrey’s, that I had sold my stalk field to them, and I didn’t want their cattle herd-lawed, and he said, T don’t want to herd-law Turner’s and Humphrey’s cattle; your cattle are the cattle I am after,’ and I said, ‘If that is the case, it doesn’t make any difference because this cow I put the yoke on belongs to Turner, and I only had control of her,’ and he said, ‘If that is the fact, you lied tó me.’ Then I told him his hogs had been over there, they had been in the yard, and on the porch, and one of them had overturned a churn setting on the gallery, and broke it, and he said they were not his hogs and I called him a damned liar. Q. What did he do? A. He was sitting in this position, he was facing me, and he was on his horse, and as I called him a damned liar h!e reached his hand back this way, and at the same time he reached his hand back I leaned around like this, I had my hands up like this, and I leaned around that way and seen the gun he had hold of, and I stepped back this way, grabbed my gun, and shot him. Before I shot him I asked him what he was going to do. He made no reply. When I fired it throwed me in a position I would be with this gentleman here, maybe a little further, and as I shot my gun I did not realize the time it was taking, and when my gun was empty his horse had jumped to the fence and had whirled west, and as he run down the fence Hodge came back over his horse and fell over his right hip to the ground. Q. Why did you shoot Hodge? A. Because when he reached- for his gun I felt that my life was in danger, and I did it to protect myself. Yes; I saw his gun, the handle of it when he laid his hand on it. I had seen him with a gun on divers occasions before that, and knew that he was in the habit of carrying one. George Rennie had told me of the threat Hodge had made about unloading his official gun in me before that. That was about Thanksgiving Day, the latter part of November. I could not say how long it took me to shoot my gun' ■empty; a man might count two or three. Q. Do you know what Hodge was doing when you went to get your gun? A. He had his hand on it trying to pull it out. I thought lie was going to kill me. I had my gun in my right pants pocket. I was in my shirt sleeves. Q. In that conversation down there before the shooting, did Hodge curse you any? A. He called me a horse thief, and a liar, and intimated that I was a son of a bitch. When the shooting was over I turned and walked back to the house. In the meantime Turner rode around the corner of the fence and up to the gate, and I cut across and went up to where he and Hodge were. I had a conversation with Turner, I says, ‘Shorty, what would you ííave done if it had been you?’ and he said, T would not want anybody shooting at me.’ I did not pick the pistol up nor make a statement that I did, nor that it was cocked. I saw the pistol. I noticed that the pistol was cocked. I did not go to Hodge’s, body nor disturb it in any way nor take anything out of his pockets. Q. What else did you tell Turner, if anything, when you got back to the house? A. I told him to .go and notify Hodge’s folks, and told him how to go.”

Witness further said that he knew where the thicket was that Sam Sherrell was working at; that it was south of where the killing occurred, acoss a ten-acre block of land, 220 yards, and about 40 yards further south; that he never made the remark to Turner about going on that Sherrell testified to, or anything like it; that he had never done anything to Sherrell to intimidate him, never talked to him about his testimony in the case, did not see him after the shooting, until after he testified at the examining trial; that he was in jail 14 days from the time he gave up.

On cross-examination witness testified in' substance:

“Hodge and I never had any trouble .until about 30 days before the killing. That came up when he thought I had hired his hand away from him. He sent for me, and I went down to his house. He said he wanted to tell me that he had it in for me and was going to punch me. After that we had a talk about a horse collar, and he said,’ ‘The less you come about here, the better it will be for you.’ I said, ‘All right,’ and told him to stay off my place.”

There was also proof of violent threats having been made by the deceased against the plaintiff in error. The state offered in rebuttal evidence that the plaintiff in error had also made hostile statements against deceased.

The first assignment of error we shall consider is based upon the contention that the court erred in giving instruction No. 15, which instruction is as follows:

“You are further instructed, gentlemen of the jury, actual or positive danger is not indispensable to justify self-defense. The law considers that men threatened with danger are obliged to judge from appearances and.determine therefrom the exact condition surrounding them, and if in such case, judging from the standpoint of the defendant, a person acts from an honest conviction induced by reasonable evidence, he will not be held criminally for a mistake as to the actual danger.
“However, you are further instructed,. gentlemen of the jury, that the right of self-defense is defensive, and not offensive, and no man may by his lawless act create a necessity for acting in self-defense, and thereupon assault and kill his adversary, and then invoke the right of . self-defense.
“And therefore, gentlemen of the jury, if from the ' evidence in this case you should believe that this defendant armed himself and sought the deceased for the purpose of provoking and engaging in a difficulty, and in furtherance of such plan did invite and provoke a .difficulty, and then and there shot and killed his adversary, the defendant cannot invoke the right of self-defense.”

It is argued that there is no testimony tending either directly or from circumstances to show that the defendant armed himself for the occasion and sought the deceased for any purpose, much less to enter a quarrel with him and kill him, and that for this reason the instruction should not have been given; that the instruction is so worded as to be argumentative and unfair.

Without discussing these features, this instruction is fundamentally wrong, in that the latter paragraph, which is the gist of the same, makes no mention of the intent with which the difficulty must be provoked, and we find no place in the instructions where this defefet is cured. The instruction says:

“If you believe that this defendant armed himself and ■sought the deceased for the purpose of provoking and •engaging in a difficulty, and in furtherance of such plan ■ did invite and provoke a difficulty, and then and there shot and killed his adversary, the defendant cannot invoke the right of self-defense.”

This is not the law. The difficulty must be prepared for, sought, and provoked for the purpose and with the intent upon the part of the accused to take the life of the deceased or do him great bodily harm.

In Turnbull v. State, 8 Okla. Cr. 459, 465, 128 Pac. 743, 746, we said:

“When, in the trial of a person charged with ■ murder, it becomes necessary for the trial court to instruct the jury on the doctrine of seeking or provoking the difficulty, and the proof discloses that the accused did any act or thing which he had a right to do, which could be reasonably considered by the jury to come within the general terms of the court’s charge, it is necessary for the court to tell the jury what acts under the law would be justifiable, and discriminate as to acts unlawful and 'which would deprive him of the right of self-defense, leaving to the jury to determine whether or not, under the facts and the law, the acts [complained of] were lawful or otherwise.”

In the same opinion we quoted from the Tennessee case of Foutch v. State, 95 Tenn. 711, 34 S. W. 423, 45 L. R. A. 687. We cannot improve upon the clear enunciation of the court in the Foutch Case, and therefore quote fully and adopt the following therefrom:

“In order to make a man guilty of murder, who is the ‘aggressor’ or in ‘fault,’ or who ‘provokes a difficulty’' in which his adversary is killed, he must have provoked it with the intent to kill his adversary, or do him great bodily harm, or to afford him a pretext for wreaking his malice upon his adversary. * * * In order to deny to such party the right to rely on the plea of self-defense, it must appear that he was the ‘aggressor’ or ‘in fault- or ‘provoked the difficulty’ in such way and with such intent as the law contemplates in the use of these terms. It is -not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase, nor is it every ‘fault’ which a man might commit that precludes him from' defending himself when violently assaulted or menaced, nor is it every ‘provocation of a difficulty’ which robs him of the right of self-defense. Cases already cited and hereinafter cited illustrate the true meaning and show the sense in which these words must be understood. They’ are really intended to imply the same thing, and what they do mean may be best indicated by suggestion of some things they do not mean, taking them up separately. First, as to the ‘aggressor’: It is not intended that every one shall be held in law to be an ‘aggressor’ who says something provoking to another which does cause a difficulty, for oftentimes such an ‘aggression’ is a just one, and sometimes a necessary one; but, even when it is neither just nor necessary, the use of opprobrious language to another is not for this reason alone an ‘aggression,’ in the sense of the law, for no mere words, however opprobrious, will justify an assault, or .the overt menace of an assault; and hence, if one only uses such words, and is assaulted or so menaced, he may defend himself; and the same thing is true of one in ‘fault.’ He might be in such and other supposable ‘fault,’ and yet not be deprived of a like right of self-defense; as, though one has threatened or abused him, he cannot go to him and assault him for it. So, when he uses to another opprobrious words, that other cannot assault him or menace him by overt act of violence, and deny him the right of defense. As to ‘provoking a difficulty’: It is not every provocation, just or unjust, which he may offer that will justify an assault upon him, or the menace of one from which he cannot defend himself; and to this also the limitations as to mere words used apply. After all, the ‘aggression,’ the ‘fault,’ or the ‘provocation’ depends upon its character and its intent. If it is an assault, or the menace of one by an overt act, or the provocation of a difficulty with intent to inflict death or great bodily harm in the event it is resisted, made of malice to bring about that result and enable the provoking party to wreak his vengeance upon the assailant, that is an ‘aggression’’ or ‘fault’ and a ‘provoking of a difficulty’ within the legal sense and meaning of the terms. If the ‘combat is provoked,’ or ‘the occasion to kill is produced,’ in the language of the charge, on this account, with this intent, and for this purpose, defendant cannot rely upon the plea of self-defense; otherwise he can. * * *”

See Aldridge v. State, 59 Miss. 250; Cartwright v. State, 14 Tex. App. 486; State v. Perigo, 70 Iowa, 657, 28 N. W. 452; Cotton v. State, 31 Miss. 504; Hash v. Com., 88 Va. 172, 13 S. E. 398.

The proof in this case discloses the fact that this homicide occurred upon the premises of the plaintiff in error; that the deceased was a trespasser in his pasture and driving stock into the same unlawfully; that the plaintiff in error had a right to be where he was; and that under the particular circumstances had a right to remonstrate with the deceased for turning the herd of cattle into his premises. It was vital to his defense that the jury be instructed properly on this proposition. To use the broad language of the court and leave out all question of the intent would practically be saying to the jury that if the plaintiff in error, by word or'act, started the harsh conversation shown, he had lost his right of self-defense. There can be no question but that the plaintiff in error had a right to complain of Hodge for turning the cattle in on him and for being on the premises himself. The controversy began with just such complaint having been made, and the rapid exchange of bitter remarks which followed merged into the homicide. It therefore was necessary for the court to put the burden of this instruction upon the intent of the accused at the time and to protect him with a proper instruction explaining to the jury how far he might lawfully go under the circumstances before forfeiting the right of self-defense.

The next assignment complained of is based upon the action of the court in submitting an instruction on manslaughter in the second degree over the objection and exception of the defendant.

A careful reading of the evidence discloses the fact that there is not a single element of manslaughter in the second degree in this case. The court had no right to submit that issue, and it was error so to do. It is the duty of the courts in trying homicide cases to distinguish under the evidence the degrees of homicide disclosed, and submit only such as the testimony tends reasonably to establish. The instruction of the court should be such that the jury in its wisdom could arrive at the proper determination of the legal issues. When there is no element of manslaughter disclosed by the proof, the court should not give an instruction defining or submitting such issue. The giving of this instruction in this case would be sufficient warrant for the reversal of this judgment. Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Ballard v. State, 12 Okla. Cr. 277, 154 Pac. 1197. If there is evidence, even though slight, tending to establish manslaughter in the second degree, a reversal would, not necessarily follow.

The only remaining assignment which we deem it necessary to refer to is based upon the improper conduct, and argument of the special prosecutor. There are nine separate assignments in this connection. We do not feel called upon to- enter into an extensive discussion of these assignments. Suffice it to say that, in our judgment, the fair and impartial trial contemplated by law could not reasonably be expected to result when conduct such as is complained of and disclosed by the record is indulged in.

It is the duty of the trial courts to confine counsel to proper and legitimate channels, and to so conduct the trial that animosity on the part of the officers of the court should have no weight in determining the great issues involved in a capital case.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

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


author: PER CURIAM.

text:
    DUD MOORE v. STATE.
    No. A-2404.
    Opinion Filed June 18, 1917.
    (165 Pac. 620.)
    INTOXICATING LIQUORS — Possession With Intent to Sell — Sufficiency of Evid nee. For evidence held to be insufficient to sustain a conviction for having possession of intoxicating liquors with intent to sell the same, see opinion.

      Appeal from County Court, Tulsa County; Conn Linn, Judge.

    Dud Moore, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      George T. Broion, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Dud Moore, and Arthur Clark were jointly charged and tried upon an information charging that they did have possession of certain intoxicating liquors with intent to sell the same. At the close of the state’s case, both defendants moved the court to instruct the jury to return a verdict of not guilty, for the reason that the testimony introduced was insufficient to show that the defendants or either of them were guilty as charged. The motion was sustained as to the defendant Arthur Clark, and he was discharged; as to plaintiff in error the motion was overruled, and the jury found him guilty and fixed his punishment at a fine of $250 and 90 days’ confinement in the county jail. A motion for new trial was filed and overruled. From the judgment rendered in pursuance of the verdict, an appeal was perfected.

The only serious question in the case is: Does the evidence authorize a conviction? The state introduced four witnesses. W. M. McCullough, sheriff, and Frank Bowlin, his deputy, testified that they searched the premises, upstairs on Third street, in the city of Tulsa, known as the “Stag,” and there found a quart bottle of whisky, three bottles partly full of whisky, three quarts of gin, and two dozen bottles of tonine. They described the place as containing a bar or lunch counter, an ice box and cooking stove in the rear, also a pool table; testifying that there were cigars and a lunch outfit; that at the time they found three or four white men and two negrpes in the room, and the negroes were eating breakfast; that at the time of the raid the plaintiff in error had been in custody of the sheriff for more than a month as a prisoner in the county jail, serving a sentence for gambling; that the warrant issued on the information in this case was served on the plaintiff in error in ,the county jail, and he was released about a month later.

G. T. Williamson testified that he owned a one-fourth interest in the building known as the “Stag”; that Dud Moore and Bob Allison had a written lease the year before, and he supposed they occupied the premises; that he had no contract with Dud Moore for the occupancy of the premises; that the rent was paid by various persons; that Dud Moore did not pay him any rent in July and he did not know whether he paid the rent for the month of August, during which month the raid was made upon which this prosecution is based; that he did not know the whereabouts of Dud Moore for the months of July, August, and September, during which time the evidence shows the defendant was a prisoner in the county jail.

W. G. Williamson testified that he owned a one-half interest in the building known as the “Stag”; that under the written lease it was rented to Billy Miles, and after the expiration of that lease he never collected the rent. This was all the evidence in the case.

We do not think the evidence is sufficient to show that plaintiff in error did have possession of the liquors in question. He is charged with doing an act which as a prisoner in the county jail at the time he could not do except through others. It appears that the information in this case was filed the day 'the raid was made, but for some reason not apparent, the names of the parties present when the raid was made were not indorsed upon the information as witnesses. In order to make a prima facie case, it was necessary for the state to show that the plaintiff in error had some interest in the place raided, and had knowledge of the fact that the intoxicating liquors seized had been placed there. The general rulé is that all the averments necessary to constitute the offense charged must be proved. '

In Mater v. State, 9 Okla. Cr. 380, 132 Pac. 383, it is said:

“In a prosecution for having possession of intoxicating liquors with intent to sell same, the burden was on the state to prove' that the place where the liquor was found was in defendant’s possession or under his control,, or that the intoxicating liquor was his, or that he had possession of same either as owner or employee.”

Because the evidence, as a matter of law, is insufficient to sustain the verdict, the judgment is reversed.


author: MATSON, J.

text:
    BOB FLETCHER v. STATE.
    No. A-2450.
    Opinion Filed July 2, 1917.
    (165 Pac. 907.)
    1. INTOXICATING LIQUORS — Offense—Evidence—Books of Express Company. ' The books required to be kept by express com- _ panies, railroads, and other transportation companies • under the provisions of section 6 of chapter 70, Session Laws 1911, when properly identified by the person, in possession and control of the same, are admissible in evidence in a case where the defend- and is charged with a violation of the prohibitory liquor laws of this state.
    2. SAME — Unlawful Sale — Question for Jury. Evidence examined, and held sufficient to authorize the trial court to submit the case to the jury.
    3. TRIAL — Remarks of County Attorney. Certain remarks of the county attorney, unauthorized by the evidence and tending to appeal for the infliction of a- severe penalty, condemned. On account of these remarks the judgment is. modified, and the penalty reduced to the minimum.

      Appeal from County Court, Custer County.

    Bob Fletcher was convicted of unlawfully selling in-' toxicating liquor, and he brings error.
    Modified and .affirmed.

      M. L. Holcombe, for plaintiff in error.

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

It is first contended that the court erred in admitting in evidence certain records of the American Express Company kept at Custer City, Okla., the place where the alleged sale was made, showing shipments of both whisky and beer to this plaintiff. in error and received by him during the period of one month previous to the date of the alleged offense. It is contended that these records were not properly identified or authenticated. These records were introduced in connection with the witness J. M. Cummings, who testified that he was the agent for the Frisco Railroad Company at Custer City, Okla., and that he had possession of the records of the office of that station showing the shipments of intoxicating liquors-received by various persons of that town. The records appear to be those of the United States Express Company, and it is contended that there is no showing that the witness was the agent for the express company, et cetera. The witness, however, testified that these were a part of the records of his office, and that they were in his possession and under his control; that they Were records showing the shipments of intoxicating liquors, and that he was familiar with the same. Had plaintiff desired to do so, he could have examined the witness as to whether or not the records of the express company were kept as a part of the railroad records at that station. This he did not do. It is a matter of general knowledge in this state that in towns the size of Custer City it is the policy of such companies to have but one agent, who attends to both the railroad and express business. In the absence of a contrary showing, where the witness testifies, that he is the custodian of such records, that they are under his possession and control, and that he is familiar with them, the proof is sufficient to admit of their introduction in evidence under the provisions of section 6 of chapter 70, Session Laws 1911, which provides as follows:

“All express companies, railroad companies and transportation companies within this state are hereby required to keep a separate book in which shall be entered, immediately upon receipt thereof, the name of the person to whom liquors are shipped, the sale of which is prohibited by laws of this state, the amount and kind received, the date when received, the date when delivered, and by wfiom delivered, and to whom delivered, after which record shall be a blank space in which the consignee shall be required to sign his name, before such liquors are delivered to such consignee, which book shall be open to the inspection of any officer of this state, whether such officer be a state, county, or municipal officer, at any time during business hours of the company. Such books shall constitute prima facie evidence of the facts therein stated and be admissible as evidence in any court of this state having jurisdiction or in any manner empowered with the enforcement of the prohibition laws of this state.”

The record introduced was shown to be one required to be kept under the foregoing statute. After proper identification the original was admissible in evidence in this case.

It is also contended that the court erred in refusing to sustain the motion of the plaintiff in error to direct a verdict of not guilty at the conclusion of the state’s evidence. The evidence in this case is substantially as follows:

The prosecuting witness, Harry Koch, testified that several boosters from the town of Clinton were traveling-about over Custer county and adjoining counties on the 17th day of June, 1914,. scattering posters to advertise the coming Fourth of July celebration at Clinton. They were traveling in a Ford car, and when they got to Custer City, Koch, who was an old-time friend of the defendant, Fletcher, instructed the driver of the car to drive to Fletcher’s house in the southwest part of that town. When they got to the house Koch went in and inquired of Fletcher if he had something to drink, to which Fletcher replied, “I have got some tin top,” and Koch said, “Well, give me some tin top.” He was given five or six bottles of “tin top.” Koch also saw a half pint bottle of whisky sitting on the shelf in the room,'and asked Fletcher what he would take for it. Fletcher said he would not sell it, but that he was not looking and that he (Koch) could steal it if he wanted to. Koch then took the whisky, and left' $1.25 on a table in the room. He took the whisky and the so-called “tin top” out to. the automobile, and he and the other parties with him drank it while on the trip. The charge is for selling beer and whisky, to Koch. Koch testifies that he does not know what the “tin top” was; that it was in beer bottles; that he had drunk beer before, but could not tell whether this was beer or not. He admitted, however, getting the whisky, but said he did not intend to leave any money for the whisky. The parties who were with Koch in the car testified that they drank some of this stuff that was in the beer bottles, and that it tasted like beer and looked like beer; that it did not have any labels on it; that they drank a small bottle of it apiece, and did not feel any intoxicating effects. They were uncertain as to whether or not it was beer. Some of them, however, drank some liquor which they testified positively to be whisky. It was also shown by the record of the express office at Custer that on the 16th day of June, 1914, the day before the boosters made this trip, the defendant, Fletcher, had received from the express office a cask of beer, and had receipted for the same. He had also about a month previous to that date received a package containing a gallon of whisky. A day or two after the booster trip the Sheriff, armed with a search warrant, searched the defendant's residence and found therein a cask or barrel of empty beer bottles. The bottles were not labeled, but on the top blown in the glass they were branded “beer.” The question, therefore, iln this case is whether or not the facts were sufficient to authorize the trial court in submitting the question of whether or not there was an implied sale of both beer and whisky on the part of the defendant to the prosecuting. witness, Koch. From the manner in which these witnesses testified it is clearly evident that they were very reluctant witnesses for the state. The prosecuting witness was a personal friend of the defendant, and had known him some eight or ten years. He evidently was well enough acquainted with him to know that he could obtain intoxicating liquors at his home; the prosecuting witness at one time having been a resident of Custer City and familiar with the people who lived there. It is undisputed that on the day before this transaction took place the defendant became possessed of a cask of beer. The, fact that he designated it “tin .top” appears, and must have been so considered by the jury, to be a subterfuge. We believe the evidence sufficient to justify the conclusion of the jury. The manner in which the whisky was obtained by the prosecuting witness indicates that the giving of the whisky was also a subterfuge to avoid a sale. We cannot say that the court erred in refusing to instruct ■ or direct a verdict of not guilty at the conclusion of the state’s case.

The only evidence offered by the defendant was that of two physicians of Custer City who testified that they had never received or obtained any liquor from the defendant. One of these witnesses, without objection on the part of defendant’s counsel, was permitted on cross-examination to testify that among certain people of Custer City the defendant had the reputation of being a booze peddler or bootlegger. The evidence of these two physicians had no direct bearing upon the question of whether or not a sale was made in this instance. Their evidence in no way conflicted with the testimony of the state’s witnesses.

It is also contended that the judgment should be reversed because of certain prejudicial remarks made by the county attorney in his closing argument to the jury, which alleged remarks are contained in a recital in the case-made which shows that counsel for the defendant objected thereto and asked the court to withdraw the same from the consideration of the jury, which request was denied and exception reserved. In the argument the county attorney called the defendant “a devilish bootlegger,” and stated that this was his second offense. There is no evidence in the record that the defendant had theretofore ever been convicted of violating the prohibitory liquor laws of this state.' The remarks were prejudicial, and, in our opinion, had a tendency to prejudice the jury to such an extent tha,t a severe penalty was given the defendant.

In view of these remarks it is our opinion that the judgment should be modified by reducing the fine from $200 to $50, and the term of imprisonment from 90 days to 30 days, and that the judgment as thus modified be affirmed.

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


text:
    ROY MUNSON v. STATE.
    No. A-2471.
    Opinion Filed July 2, 1917.
    (165 Pac. 1162.)
    1. APPEAL AND ERROR — Trial Errors — Record. Alleged errors occurring during the ¡trial must appear ■ from, and be supported by, the record as certified by the trial judge.
    2. SAME. . Where the record does not support such alleged errors, this court is without authority to decide questions of law involved.
    3. BURGLARY — Sufficiency of Verdict — Judgment. The information charged “burglary in the first degree.’' The jury returned the following verdict, “We, the jury, impaneled and swprn to try the issues in the above-entitled cause, do upon our oaths find tlip defendant, Roy Munson, guilty as charged in the information and assess his punishment at the minimum of seven years-in Uie state’s prison.'’ Held, said verdict is sufficiently definite and certain to authorize the trial court to pronounce a judgment of conviction of burglary in the first degree.
    4. TRIAL — Instructions—Credibility of Witnesses. The general instruction on the credibility of witnesses is a sufficient rule for the, guidance of the jury. Trial courts should adhere to such an instruction to the exclusion of any that may direct the attention of ¡the jury to any particular witness in the case, although the rule laid down be the sanie as that applicable to all witnesses.
    5. SAME — Instruction—Weight of Defendant’s Testimony. Where the court in a separate instruction specifically told the jury that it had “no right to disregard the testimony of the defendant from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime, * * but that his evidence should be weighed and measured in the same manner as the testimony of' other witnesses in the ease,-’ and in a subsequent instruction the court -lays down the general rule hy which the jury may he guided in determining the /credibility of witnesses and the weight to be given .their testimony, held, that said separate instruction did not amount to an adverse or prejudicial comment upon the defendant’s interest in the result of the action, nor was it a comment by the court on .the weight to be given defendant’s testimony. The instructions, considered together, placed the defendant upon the same plane with the other witnesses.
    6. APPEAL AND ERROR — Reversal of Conviction — Express Statutory Provision. This court is not allowed to reverse a judgment of conviction on account of the misdirection of the jury unless after an examination of the entire record it clearly appears that there has been a miscarriage of justice, or that the defendant has been deprived of some constitutional or statutory right. Section 6005, Rev. Laws 1910.

      Error from District Court, Woodward County-; James B. Cullison, Judge. -
    Roy Munson was convicted of the crime of burglary, and he brings error.
    Judgment affirmed.

      W. A. Briggs, for plaintiff, in error.

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

In view of the fact that certain alleged errors relied upon for reversal of this judgment were not preserved in the trial court, it is proper in this opinion to state that counsel who represented the plaintiff in error in-this court did not represent him in the trial court. It is unnecessary to discuss the sufficiency of the evidence to sustain the conviction. While the evidence is conflicting, the testimony of the prosecuting witness, Elsie Derr, is sufficient to make out the crime of burglary in the first degree.

The first alleged error relied upon for a reversal is that the prosecuting attorney made certain prejudicial remarks in the presence and hearing of the jury at the time the jury returned an incomplete and insufficient verdict. It appears from the record that the jury first returned into court a verdict in the following, form:

“We, the jury, duly impaneled and sworn to try the issues of the above-entitled cause, do upon our oaths find the defendant, Roy Munson, guilty as charged in the information and assess his penalty and punishment at the minimum.”

Which verdict was signed by the foreman of the jury and handed to the clerk to read. After it was read it is alleged that a controversy arose as to whether the verdict was sufficient in form, at which time, it is contended by counsel for plaintiff in error, the prosecuting attorney made the remark that he supposed the jury intended to fix the punishment at seven years, which, said remarks were excepted to by counsel for plaintiff in error. However, it nowhere appears from the record that any such remarks were made by the prosecuting attorney; the entire record on this subject being as follows:

“The Court: Gentlemen of the jury, the court directs you to return to your jury room and return your verdict so as to make it more definite and certain as to time. You may now follow your bailiff.
“By a Juror: May I speak a word? It will not take us over ten minutes to fix it right, I think.
“The Court: We will wait until you return, gentlemen; we don’t care to have any discussion about it.”’

■ Therefore it is apparent that if the prosecuting attorney made any such remark as alleged, no record of the same was preserved, and this court is bound by the record as made and certified to by the trial judge. It is the duty of the plaintiff in error, and the burden is upon him to clearly show that error was committed during the trial. Every presumption is in favor of the regularity of the proceedings .in the trial court, and unless prejudicial error is clearly made to appear, where the question is not jurisdictional, this court is without power to consider the same.

It is also contended that the verdict as amended is not sufficient to confer jurisdiction upon the court to pronounce judgment in this case. Said verdict reads as follows:

“We, the jury, impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths find the defendant, Roy Munson, guilty as charged in the information and assess his punishment at the minimum of seven years in the state’s prison.”

Which verdict was properly signed by the foreman of the jury. The contention is here made that burglary being a crime divided into degrees, and the jury having been_in-structed upon first and second degree burglary, the verdict is therefore so indefinite and uncertain as not to authorize the court to pronounce a judgment of conviction of the degree of which the jury intended to convict. This question has already been passed upon adversely to the contention of counsel for plaintiff in error in the case of Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824, wherein it was held:

“The provision of Procedure Criminal (section 6874, Comp. Laws 1909; section 5922, Rev. Laws 1910) 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.’ ”

We hold, therefore, that it is clearly evident from the verdict returned in this case that it was the intention of the jury to find the defendant guilty of burglary in the first degree, and that the court did not err in pronouncing judgment to that effect.

It is also contended that the court erred in giving the following instruction:

“The jury are instructed that under the laws of this state a person accused of crime has a right to be a witness in his own behalf, and in' this case the defendant having been a witness and having testified in his own behalf, the jury have no right to disregard his testimony from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime; but you are instructed that his testimony ought to be received and considered by the jury in connection with all the other evidence in the case, and should be weighed and measured by the jury in the same manner as the testimony of other witnesses in the case.”

It is contended that this instruction is erroneous and prejudicial to the substantial rights of the defendant in that it singles out the defendant and calls the jury’s attention to the fact that he is an interested witness in the case. It is true that this court has held in numerous cases that it is erroneous for the court to call the jury’s attention to the fact that the defendant is an interested witness, and that the jury may consider such fact in arriving at its verdict. The instructions condemned by this court, and held to be prejudicially erroneous, were much more drastic than the foregoing instruction given in this case. The instructions condemned were those in which the court specifically told the jury that it was its duty, in arriving at the verdict, to consider the fact that the defendant was an interested witness in his own behalf. The instruction given in this case was a precautionary one; the jury being specifically told that it had “no right to disregard his testimony from mere caprice or on the ground alone that he is the defendant and is interested in the event of the suit, or that he stands charged with crime, * * * but that his evidencec should be weighed and measured in the same manner as the testimony of other witnesses in the case.’' While this instruction perhaps tended to single the defendant out, we cannot see wherein its effect was to prejudice his testimony. It was intended by the court for his protection, to place him on the same footing with the other witnesses, and being a part of the law of the case the jury was bound so to receive it. By such instruction the jury was cautioned and prohibited from disregarding the testimony of the defendant from mere caprice, or upon the ground alone' that he was the defendant. In addition, the jury was .told that it should consider the evidence of the defendant in the same manner and weigh it the same as it would that of any other witness. Certainly this was all the defendant was entitled to. The jury is entitled to consider the interest that any witness has in the result of the trial, and when the defendant is placed upon the same plane with any other witness who testifies, it is unreasonable to say that he was prejudiced just because the jury was told of that fact in a separate instruction.

This court is not allowed to reverse a judgment of conviction on account ’of the misdirection of the jury, unless after an examination of the entire record it clearly appears that there has been a miscarriage of justice, or that the defendant has been deprived of some constitutional or statutory right. Section 6005, Rev. Laws 1910.

To hold that the foregoing instruction amounts to an adverse or prejudicial comment upon the defendant’s interest in the result of the action, or is a comment by the •court on the weight of his testimony, is, in our opinion, illogical and unreasonable.

Instructions of this kind should not be given unless requested by defendant. The general instruction on the •credibility of witnesses answers every purpose, and the trial courts should adhere to such an instruction to the •exclusion of any that may direct the attention of the jury to the testimony of any particular witness. This court, however, is only authorized to reverse a judgment of ■conviction on account of a misdirection of the jury where it is clearly evident that, by reason of the giving of or refusal to give instructions, the defendant has been prejudiced to the extent that there has been a miscarriage of justice,, or that he has been deprived of some constitutional or statutory right.

After a careful consideration of the entire record, it is our opinion that the judgment should be affirmed; and it is so ordered.

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


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    ALGIE BALDRIDGE v. STATE.
    No. A-2587.
    Opinion Filed July 2, 1917.
    (165 Pac. 1160.)
    APPEAL AND ERROR — Question of Fact. Where there is evidence in the record to support the verdict, and the verdict has been approved liy the trial court, this court will not review the evidence to determine its weight or sufficiency.

      Appeal from County Court, Craig County; E. M. Probasco, Judge.

    Algie Baldridge was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      Wm. P. Thompson, for plaintiff in error.

      1R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Craig county on an information charging that he did have possession of seven pints of alcohol with the unlawful intent of selling the same, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50 and the costs. From this judgment an appeal was properly perfected. We have carefully examined the record, and our conclusion is that there is no merit in the assignments of error. .

Three witnesses for the state testified that they went to the rooming house conducted by plaintiff in error, and there found in one of the rooms about 100 empty bottles and seven pint bottles of alcohol, and that he was in the room at the time.

As a witness in his own behalf the defendant testified that his name was “Algie Baldwin.” His explanation about the alcohol was as follows: .

“I was standing there in the kitchen that night, and a fellow came in the door, and asked me for a drink of water, and he said, ‘Can I go out the back door ?’ and I said, ‘Yes’; and he stepped out the back door and brought this whisky in. I asked him, ‘What do you mean?’ and he just stood there and looked at me. I said, ‘You take this out.’ He walked right out and left it there. His name was Lynn Wallace.” — That Wallace was rooming' there at the time.

Where there is evidence in the record to support the verdict, and the same has been approved by the trial court, this court will not review the evidence to determine its weight or sufficiency. The jury, no doubt, .in determining the truth of the defendant’s testimony, took into consideration the other criminating circumstances.

Finding no error in the record, the judgment is affirmed. Mandate forthwith.

ARMSTRONG and MATSON, JJ., concur..


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    STEVE TALKINGTON v. STATE.
    No. A-2742.
    Opinion Filed July 2, 1917.
    (165 Pac. 906.)
    1. INDICTMENT AND INFORMATION — Validity — Signature of Assistant County Attorney. An information, signed in tlie name of tlie county attorney by a duly appointed and qualified assistant county attorney, is valid.
    2. INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquor, the evidence considered, and held sufficient to sustain the verdict and judgment.

      Appeal from County Court, Carter County; Thomas W. Champion, Judge.

    Steve Talkington, convicted of unlawfully conveying intoxicating liquors, appeals.
    Affirmed.

      William Pfeiffer, for plaintiff in error.

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

This appeal is from a judgment of ■conviction on an information charging that Steve Talk-ington did unlawfully convey “10 cases of whisky, from a point on the Cornish and Wilson road on the line between Jefferson and Carter counties to a point on said road about three miles east of said county line.” On the 23d day of February, 1916, judgment was entered in accordance with the verdict of the jury, and he was sentenced to be confined in the county jail for 30 days and to pay a fine of $150, and in default of the payment of said fine to be further confined until the' same should be satisfied at the rate of $1 per day.

The following is, in substance, the testimony introduced at the trial: W. H. Ward and Jim Gaunt, deputy sheriffs, testified that on the 2d day of July, 1916,’ they saw the defendant about three miles east of the county line between Carter and Jefferson counties on the Cornish and Wilson road; that he was going east in an automobile;, that they stopped him, and found he was conveying 10 sacks, each sack containing 12 quart bottles of whisky. The defendant offered no testimony.

The first assignment of error is based upon the action of the court in overruling the defendant’s motion to quash the information; The ground of said motion is:

“Because said information is not signed by the county attorney, or his authorized assistant, in the manner provided by law.”

The record shows that. the defendant asked • to have the county attorney sworn to testify in support of his motion. Thereupon Mr. A. J. Hardy, county attorney, stated:

“I admit I did not sign my name to the information in this case.”

Mr. Hardy then called W. F. Bowman, who testified that he was assistant county attorney at the time the information was signed and filed and the signature thereto, that is, “A. J. Hardy, County Attorney,” was signed by witness; that Mr. Hardy at the time was county attorney and witness the duly appointed and qualified assistant county attorney. Our Procedure Criminal provides:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same.” (Section 5694, Rev. Laws 1910.)

In McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260, it is said:

“An unqualified reading of the words of the statute would make it necessary for the county attorney himself •to subscribe his own name to all informations; but it has been held that the county attorney need not himself subscribe his name to an information, as it is sufficient if it be done by his legally appointed assistant.”

And see Fooshe v. State, 3 Okla. Cr. 666, 108 Pac. 554. Thus it appears -that the name of the county attorney was signed by his duly appointed and qualified assistant, and the county attorney was himself present insisting on the validity of the signature, and he personally prosecuted the case. The motion to quash was very properly overruled.

Finally, it is insisted that the court erred “in refusing to advise the jury to return a verdict of not guilty.” Counsel for the defendant contends that the evidence fails to show that the liquor in question was conveyed from the point on the Cornish and Wilson road on the county line to a point on said road about three miles east as alleged. There can be no doubt as to the sufficiency of the evidence in this case to warrant the verdict of the jury. After a careful examination of the record we have failed to discover anything whereof the plaintiff in error has just right to complain. The judgment appealed from is therefore affirmed. Mandate forthwith.

ARMSTRONG and MATSON, JJ., concur.


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    FRANK PACE v. STATE.
    No. A-2050.
    Opinion Filed July 7, 1917.
    (165 Pac. 1160.)
    1. APPEAL AND ERROR — Presumption of Regularity. In tbe absence of any affirmative showing to the contrary, it will be presumed on appeal that all proceedings in the lower court were regular, and that all persons appearing in the role of public officers were duly authorized so to do as provided by law.
    2. BURGLARY — Burglary in the Nighttime — Information. An information which charges the burglarious breaking and entry of a dwelling in the nighttime with intent to commit larceny therein is good as against demurrer.
    3. APPEAL AND ERROR — Sufficiency of Evidence. When the evidence tends reasonably to support a finding of the jury, a judgment of guilty will not be reversed by this court on the ground that the same is contrary to the evidence.

      4. APPEAL AND ERR OK — Assignment of Error. An assignment of error based upon a proposition not properly preserved' in the trial court and not supported by any legal showing cannot avail on appeal, and will not be considered by this court.

      Appeal from District Court, Washita County; James R. Tolbert, Judge.

    Frank Pace was convicted of burglary, and he appeals.
    Affirmed.

      Smith, Smith & Smith, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Frank Pace was convicted in the district court of Washita county on a charge of burglary, and his punishment fixed at imprisonment in the state penitentiary for a period of two years.

The information charges Pace and two others with having burglarized the residence of M. T. Bonny on the night of October 26, 1909. It appears that the plaintiff in error left the country immediately after the offense was committed and was for a long time a fugitive from justice; that he was arrested at Amarillo, Tex., and escaped from the officers, but was later captured and returned to Oklahoma for trial. M. T. Bonny and his family live on a farm about 18 miles west of Cordell, in Washita county, Okla. On the night of October 26, 1909, Bonny and his family went to prayer meeting at the neighborhood church and on return discovered that the house had been entered and ransacked. Screens were cut from the windows and the glass broken out. The glass was also broken from the doors. The dresser drawers, wherein Bonny kept his valuable papers, had been plundered and a number of important documents carried away. A bed had been ripped open with a sharp instrument, and the contents piled up on the floor, and, as stated by one of the witnesses, everything was “topsy turvy.” A small amount of money was taken from a clock on the mantel. Every apparent place for the concealment of money or valuables was searched. Bonny had sold several- bales of cotton for which he had received some $600 or $700 in cash. The burglars were evidently searching for this money, and were defeated in the effort to steal the same because he had secreted it on his person instead of in his home. Certain household articles were carried away, but most of them were recovered.

Frank Pace, John Pruitt, and Buck Spradlin were seen in the neighborhood driving a team to an open buggy. Buggy tracks and mule tracks answering the description of those driven by these parties were found at the Bonny place. Three or four different witnesses saw these parties driving along the highway. They seem to have engaged in a general disturbance of .the neighborhood, having stopped at two or three places in the community and discharged firearms, • and being fired on by one or two men in the neighborhood. These and many other circumstances conclusively point to the guilt of Pace and his associates. The defendant did not testify in his own behalf, and offered no witnesses or proof of any kind in his defense.

The preliminary complaint was filed before one Coker, justice of the peace, in November, 1911, and approved by R. Brett, special county attorney. An amended complaint was filed on the 3d day of February, 1912, charging Pace with the crime and setting forth the fact that he had been a fugitive from justice for more than a year following October 26, 1909, and was at the time a fugitive from justice. A preliminary trial was held on the 3d day of February, 1912, and Pace was bound over to await the action of the district court. Before the information was filed- in the district court, the complaint lodged with the justice of the peace was lost and a copy was filed with the clerk and certified to by the justice of the peace as being the complaint upon which the hearing was had and the order made holding Pace to the district court for trial.

It is urged on behalf of plaintiff in error that there was no valid complaint filed, and that R. Brett was not legally appointed special county attorney to act in the premises. A motion to quash the information on this ground, among others, was filed and overruled by the trial court. ■ A demurrer was filed to the information, which was also overruled by the trial court. There is nothing in the record to indicate that R.' Brett was acting without authority and proper appointment from the district court of 'Washita county. At the hearing on the motion to set aside the information, no proof upon this point is disclosed in our search of the record, and no reference is made to any in the brief of counsel. In the absence.of any showing to the contrary, it will be presumed' on appeal that all proceedings in the lower court were regular, and all persons appearing as public officers were duly authorized so to do as provided -by law. Besides, the lawful county attorney filed the information in the district court, thereby adopting and approving the proceedings theretofore had.

The'charging part of the information is as follows:

“Did then and there unlawfully, willfully and feloni-ously in the nighttime break and enter into a certain building and structure, to wit, the residence and dwelling of M. T. Bonny in which there was no human- being at said time of breaking; the said building being then and there the property of and under- the control of the said M. T. Bonny, and there being then and there property kept in said building, to wit, household goods, money and other effects, a more particular description of which is to the county attorney unknown, the said property being then and there the property of the said M. T. Bonny. The said Frank Pace, Buck Spradlin, and John Pruitt did then and there, with felonious intent to steal, take and carry way by fraud and stealth said property so kept in said building, break into and enter said building in the nighttime as afore said, the manner of said breaking being by the county attorney unknown, with felonious intent to then and there take, steal and carry away said property as aforesaid, and to deprive .the said M. T. Bonny of same and the value thereof, without the consent of the said M. T. Bonny, and to convert the same to the use and benefit of them, the said Frank Pace, Buck Spradlin, and John Pruitt, contrary to the form of the statutes in such cases made and provided, and against the dignity of said state. That the said Frank Pace has been a fugi-, tive from justice and absent from the State of Oklahoma for more than one year since the 26th day of October.”

A demurrer was filed to this information, and is as follows:

“Comes now the defendant above named and demurs to the information filed herein for the reason that the said information does not contain facts which constitute an offense against the laws of the State of Oklahoma.”

The demurrer was overruled by the trial court. In our judgment, this information sufficiently charges the burglarious breaking and entry of the building with the felonious intent to commit larceny therein. It therefore follows that the demurrer was properly -overruled.

Counsel next contend that the verdict of the jury is contrary to the evidence, and that the jurors based the verdict on the fact that the plaintiff in ■ error failed to testify in his own behalf. These assignments are wholly without merit. The jury made no mistake. The question of whether or not the jury discussed the fact that the plaintiff in error failed to testify in his own behalf is not raised by any legal showing.

A careful examination of the record discloses no prejudicial error. The judgment of the trial court is therefore in all things affirmed.

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