text:
    NEWTON HENRY v. STATE.
    No. A-1775.
    Opinion Filed December 13, 1913.
    (136 Pac. 982.)
    1. APPEAL — Brief—Citations. Where counsel rely upon Oklahoma cases in support of their propositions, they must in their briefs cite the page and volume of the Oklahoma Reports where such cases may be found.
    2. EVIDENCE — Testimony on Prior Trial — Admissibility—Harmless Error, (a) Where a witness has testified for the state in a criminal case, and said cause is tried again, and the state proves that such witness had left the state declaring that he was going into another state, and a subpoena is issued for said witness to testify in behalf of the state, and the sheriff’s return thereou shows that the witness could not be found in the county in which the cause is pending, the testimony of the witness given on such previous trial may be admitted on behalf of the state or the defendant.
    (b) If the court should err in the admission of evidence on the part of the state, and subsequently thereto the defendant takes the witness stand in his own behalf, and admits the truthfulness of the evidence so erroneously admitted, such error becomes harmless and will not be ground for reversal.
    3. . APPEAL — Presumption of Regularity — Presence at Trial — Waiver of Rights, (a) Every presumption of law must be indulged in favor of the regularity of the proceedings in courts of record, and if the record shows that the defendant was present when the trial began but is silent as to the presence of a defendant during the trial, in the absence of an affirmative showing that the defendant was actually absent, and that such absence was not the result of his consent or procurement, a judgment will not be reversed because the reeord did not show affirmatively the presence of the defendant.
    (b) Humphrey v. State, 3 Okla. Or. 504, 106 Pac. 978, 139 Am. St. Rep. 972, expressly overruled. Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11; Mendenhall v. United States, 6 Okla. Cr. 436, 119 Pae. 594; Killough v. State, 6 Okla. Cr. 311, 118 Pae. 620; Williams v. State, 7 Okla. Cr. 251, 123 Pae. 190, 126 Pae. 697; Burns v. State, 8 Okla. Cr. 554, 129 Pae. 657 — cited and reaffirmed.
    (e) Any statutory or constitutional right of a defendant not inalienable may bo waived, where it can be done without affecting the rights of others, and without detriment to the community at large, and where it does not affect the jurisdiction of the court as to the subject-matter. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, reaffirmed.

      4. TRIAL — Presence of Defendant — Necessity. It is not necessary that a defendant should be present when a motion for a change of venue, or a motion for a continuance, or a motion for a new trial is argued and submitted.
    5. APPEAL — Judgment—Arrest of Judgment. For assignment of error not supported by the record, see opinion.
    6. HOMICIDE — Death Penalty — Sufficiency of Evidence. For a case in which a verdict of assessing the death penalty is sustained by the law and evidence, see statement of evidence and opinion.
    7. CONSTITUTIONAL LAW — Pardon—Commutation of Sentence— Officers — -Duties, (a) No official of Oklahoma has the shadow of a right to set aside or disregard the laws of this state, as a matter of whim or caprice.
    (b) Officials should set an example of obedience to law. If they disregard the law, how can they blame the people for taking the law into their own hands?
    (c) The Governor is without the lawful right to set aside and nullify the law inflicting the death penalty for crime in all eases upon the ground that lie is opposed to capital punishment.

      Appeal from Superior Court,, Oklahoma County; Edward D. Oldfield, Judge.

    Newton Plenty was convicted of murder, and appeals.
    Affirmed.
    See, also, 6 Okla. Cr. 430, 119 Pac. 278.
    Sam Bartell testified that in June, 1911, he was a justice of the peace of the Oklahoma City district; that on the 23d day of Tune, a little after 12 o’clock, he went to the Carrington Hotel in Packingtown, Oklahoma City, and there found Charley Lucas lying dead on the ground with his feet toward the porch; that there was a gunshot wound entering his body right over the heart; that the deceased was in his shirt sleeves; that he searched the body, and found no weapons on it or about it. ■
    Robert Dunn testified: That in 1911 he lived in Packing-town, Oklahoma City, and was a carpenter by occupation. That he was acquainted with Charley Lucas in his lifetime, and saw him last alive about 12 o’clock on the 23d day of June, 1911; and that deceased was working for, and residing .with, witness, three or four blocks from the Carrington Hotel. That after deceased had his dinner he left the home of the witness, stating that he was going to go to the home of Lucy Carrington. He said he was going for his clothes. Deceased was dressed in trousers and undershirt. Deceased was not armed at the time. That deceased did own a pocketknife, but it was left in the inner pocket of his coat hanging on the side of the wall. That witness knew the defendant, Newton Henry; had a conversation with him the morning before the shooting. Defendant told witness that he had had trouble with Charley Lucas, and said that Charley was after his woman. He said, “The crazy son of a bitch is after my woman.” He also stated that Charley Lucas owed him 60 cents, and that he (defendant) had run him away from his house and said that if he ever caught him there again he would kill him. This conversation occurred on the morning of the day of the killing. Witness heard the shooting. Two shots were fired. A little boy came up, and said that defendant-had killed Lucas, and called on witness to run and catch him. Witness went immediately to the place where the shooting had occurred. When he got there, defendant had gone to the river bottom. Defendant was going west, then turned and went south. Witness could not get close enough to the defendant to have any conversation with him. Witness then .went to the Carrington Hotel, and found Lucas lying there dead on the ground. Witness saw no knife or other weapon around there. Witness testified that he was acquainted with one Steve McNeal; that the said McNeal left the state of Oklahoma soon after the trial of the case was over, and went to the state of Texas. This evidence was received without objection.
    J. G. Dunn testified that he was acquainted with a man named Steve McNeal, or “Trust Luck”; that after the first trial in this cause the said “Trust Luck” left the state of Oklahoma, and said that he was going back to Texas.
    The state then introduced a subpoena issued on the 10th day of April, 1912, by the clerk of the superior court of Oklahoma county, for the said Steve McNeal to testify in this cause, as a witness on behalf of the state, which subpoena was returned in court indorsed as follows on April 11, 1912:
    “1 cannot find the within named Steve McNeal within my county. He is dead. [Signed] Jack Spain, Sheriff, by E. L. Stout, Deputy.”

      Upon this showing that the said Steve McNeal was absent from the jurisdiction of the court and could not be produced as a witness, the state then introduced L. J. Sartain, who testified that he was court reporter in the superior court of Oklahoma county in July, 1911; that as such reporter he took the testimony in the former trial of this case; and that Steve McNeal, or “Trust Tuck,” then testified as a witness for the state; and that what purported to be a copy of the testimony of the said “Trust Luck,” which was handed to the witness for his inspection, was a true and correct copy and transcript of the testimony given by said witness on said trial. To the introduction of this evidence, counsel for appellant made a general objection that such evidence was not admissible unless the state first proved that said witness was without the jurisdiction of the court, and, further, that due diligence had not been used by the county attorney’s force to bring said witness into court. Which objection was by the court overruled. To which counsel for appellant excepted. Thereupon the state read the testimony given by the said Steve McNeal in the former trial of this cause. Said witness testified that he knew Charley Lucas in his lifetime, and that he remembered the occasion of his being killed by the defendant at the Carrington Hotel on the day of the 23d of June, 1911. About two days before the killing, the defendant told witness that the Carrington Hotel had changed hands, and that he (defendant) was now the sole owner of the same; and he desired to get something to protect the house with, and wanted to buy a pistol from witness for this purpose, and obtained a pistol from witness. Defendant also told witness that he had been cleaning out the house since he got possession of it; and also told witness that deceased, Charley Lucas, owed him 60 cents, Avhich he refused to pay, and that he had ordered the deceased out of the house, and that deceased had appeared to be looking for something to fight with, after he walked out of the house.
    Lucy Carrington testified: That on the 23d day of June, 1911, she was living at the Carrington Hotel in Packingtown, Oklahoma City, Okla., and that she had resided there since the preceding February. That she was acquainted with both the deceased- and the defendant, and had been running the Carring-ton Hotel, until about two or three weeks before the killing, when she sold her interest to the defendant. That after witness sold her interest in the hotel to the defendant she remained there as cook. That the husband of witness had become involved in some trouble in Oklahoma City, and had left the state and gone to Kansas, and had not returned since. That the deceased, Charley Lucas, had been living at the Carrington Hotel until about two days before the killing. That, when deceased left the Carring-ton Hotel, he left his clothes for the witness to wash - for him. That about 12 o’clock on the 23d day of June, 1911, the witness was in the kitchen getting dinner at the Carrington Hotel. That she saw deceased coming to the porch of the kitchen about six or eight feet from the porch. That deceased said to her: “Good morning. I came to get my clothes. Have you got my clothes done? I want to go in town this afternoon, and thought I would come up and see if you have got my clothes done.” And witness replied that she had them washed, but had not ironed them yet, and that she would send them to him by her little boy that afternoon. That just then the defendant walked into the room, and said to deceased: “I told you to stay away from here; you went away owing me.” Deceased replied, “I came here after my clothes.” Defendant then rushed on deceased with a gun. Deceased then had his hands upon a clothes line. The gun fired twice, and deceased sank down in a heap. He did not say a single word. Defendant walked back to his room and came out putting on his coat and had his hat on his head, and witness said to defendant, “Don’t kill him,” and defendant made no reply. That defendant walked up to- a table on the porch. That there was an old rusty butcher knife lying on this table back of some pans. Defendant picked up this knife, looked at deceased, and then looked at witness. The witness then became frightened and ran back into the house, and did not see defendant any more until after he left the building. Witness heard defendant say, when he left the building, that deceased had drawn that knife on him. Witness stated deceased had not drawn the knife on defendant; that no one else saw the-killing besides witness, so far as she knew. This witness was subjected to a severe and searching cross-examination, hut her statements with reference to the killing were in no manner weakened or impaired thereby.
    Jack Spain testified that on the 23d day of June, 1911, he was sheriff of Oklahoma county; that immediately after the killing witness searched the premises for defendant and was unable to find him; that defendant was not arrested until 8 o’clock p. m., when he was found in a pool hall, and arrested by a deputy sheriff.
    J. H. Reder testified: That on the 21st day of June, 1911, he heard the defendant say that he had. some trouble with the deceased; that deceased owed defendant a little room rent, and deceased seemed to think he did not owe it. Defendant stated that he then went and got a knife, and when he got back deceased was gone. Defendant said, “If I had found him, I would have tried to get it from him,” and further stated, “I will either get my (50 cents or get him (deceased).”
    The state here rested its case.
    Defendant, Newton Henry, testified in his own behalf: That on the 7th day of June, 1911, he came into possession of the Car-rington Hotel as lessee. That it was turned over to him by Lucy Carrington. That he knew deceased, Charley Lucas. That he was renting a room at the Carrington Hotel. That he was paying $4 per week for room and board. That deceased left the house on the 17th day of June without paying defendant a single cent of what he owed him. That defendant talked to the deceased about paying his board bill twice, and that deceased kept putting him off. That deceased stole his clothes out of the building a couple of days before the killing. That the deceased returned to the hotel, and defendant then said to him, “If you won’t pay me, why don’t you stay away?” That when deceased came to the hotel he generally talked with Lucy Carrington. That he bought the pistol on the Monday before the homicide for the purpose of protecting his house. That on the day before the killing Bob Dunn informed defendant that Charley Lucas was going to kill him (the defendant) about the Carrington woman. That about 12:30 o’clock, while he was cleaning up the house, he started to go to the pump to get some water, carrying his pistol in his pocket. Just as he turned the corner he saw the deceased at the kitchen door. That when defendant saw deceased he ordered him to leave, to go away. That deceased was sort of bent over as if he was watching and waiting for something. That the deceased made a break toward him, and said, “I will put you away,” and that he shot deceased. That he shot deceased because he was scared and did not know whether deceased would shoot him or cut him. Doesn’t remember whether he shot once or twice. That after the shooting defendant saw a knife about two feet away from deceased on the ground.
    Counsel for defendant then said: “We want to introduce the testimony of Steve McNeal. Do you want me to go through and make another showing.” The county attorney replied, “No, I am willing for the record to show that you introduced the testimony of the same witness that I offer.” Counsel for defendant then said: “All right. Gentlemen of the jury, this is the testi-monjf of Steve McNeal, the same witness that Mr. Hooker read the testimony of, the man that was supposed to be dead. On the other trial there were not many witnesses around, and we just grabbed' up one of the state’s own witnesses, and I want to read you his testimony.” Said witness testified that he knew the defendant, and had known him since the previous November; that he was acquainted with the general reputation of the defendant in that community for peace and quietude; and that such reputation was good.
    J- F. Palmer testified for defendant that the general reputation of the defendant for peace and quietude in the community in which he resided was good.
    Neal Shaw testified for defendant that a few days before the shooting he heard a conversation between deceased and defendant about a bill which was due the defendant. Defendant told deceased that he did not want him in the house, a.nd for him to go out and never come back again; and that the deceased gave the defendant some back talk. The witness heard shots fired in the difficulty in which deceased lost his life. He heard the defendant say, “I thought I told you to say away from this house.” If the deecased made any reply, witness did not hear it. Immediately after this he heard the shots fired.
    Judge Peters testified for defendant that the general reputation of the defendant for peace and quietude was good. Several other witnesses testified in behalf of appellant to the same effect.
    Defendant here rested his case.

      James S. Twyford, for appellant.

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

(after stating the facts’as above). First. In the brief filed in this cause counsel for appellant referred to a number of the decisions of the Supreme Court of Oklahoma, and also of this court, without giving the page and volume where such decisions could be found. In Appendix C of the second volume of the Revised Statutes of Oklahoma, 1910, will be found the rules of this court. On the subject of briefs these rules say: “All citations of Oklahoma cases must be by the volume and page of the Oklahoma Criminal Reports.” We have had frequent occasion to call the attention of the bar to this rule. See Johns v. State, 8 Okla. Cr. 685, 129 Pac. 451; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 689. We have no objections to citations being made to any other reports; but the Oklahoma Criminal Reports are published by the state officially, under the immediate supervision of the members of this court. They can be purchased for a nominal sum, and lawyers who cite Oklahoma cases must give the page and volume of the official reports where they can be found. They are conveniently at hand, and such citations greatly expedite the labor of this court. Those lawyers who intend to- practice law in this court should make themselves familiar with, and conform to, the rules of the court. Unless they do so, in ordinary cases their briefs will not be considered; but, as this is a capital case, and as the extreme penalty of the law has been assessed by the jury, we will relax the rule in this instance, as we do in all cases of great gravity, and will treat the brief of counsel for appellant as though it were in strict compliance with the rules of the court and in all respects regular.

Second. Counsel for appellant contends that the testimony given by Steve McNeal upon the former trial of this cause was improperly admitted in evidence over objections of appellant. It was proved that the said McNeal had left Oklahoma county, stating that he was going to Texas, and that a subpoena had been issued for him to testify as a witness for the state upon the present trial, and this subpoena had been brought into court with a return thereon indorsed by the sheriff of the county that the said Steve McNeal could not be found in Oklahoma county. In the absence of a showing that the witness was within the jurisdiction of the court, we think that this authorized the admission of the testimony of the said Steve McNeal. See Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121. Even if there were any question about this, the record also shows that, subsequent to the admission of this testimony, evidence given upon the other trial by. the said Steve McNeal in favor of appellant was offered in evidence by his counsel upon the ground that said McNeal was beyond the jurisdiction of the court. This places the matter beyond question and waives any possible error that there may have been in the admission of the testimony originally. Appellate courts will not permit litigants to take inconsistent positions before them. See State v. Clark, 121 Mo. 500, 26 S. W. 562. If it be conceded that the admission of the testimony of the said Steve McNeal was error, such error would not be ground for reversal, because the material facts testified to by the witness McNeal were admitted to be true by appellant when he took the witness stand. Therefore appellant could not have been injured by McNeal’s testimony, and it would be a burlesque upon justice and bring the law into contempt to reverse a conviction on_ account of the admission of testimony which was admitted to be true by the defendant himself.

Third. Counsel for appellant in his brief says: “The record shows that upon resting the case the court instructed the jury in writing, and is silent as to the argument of counsel.” Upon this omission of the record to state that argument was made, counsel takes the position that the judgment must be reversed, because the record does not affirmatively show that argument was made and that appellant was present during said argument. In support of this contention, he cites the case of Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978, 139 Am. St. Rep. 972. Humphrey v. State was modified in Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, and also in Mendenhall v. State, 6 Okla. Cr. 436, 119 Pac. 594, and again in Williams v. State, 7 Okla. Cr. 251, 123 Pac. 190, 126 Pac. 697; and, upon a more full investigation of all the authorities and the reason of the law, Humphrey v. State was expressly overruled in Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657, which contains a full discussion of the authorities upon this question and announces the settled policy of this court.

It is true that,the defendant has the constitutional right to he heard in person or by counsel in the argument of his cause. It is also true that defendant had the right to he personally present during every stage of the proceedings of his trial, and, if the record affirmativel)'- shows that the defendant was deprived of either of these rights, a judgment must he reversed. These are rights which may be waived, and unless they are asserted at the trial the presumption of law will be that they were waived, unless the contrary affirmatively appears in the record. Every presumption of law is in favor of the regularity of proceedings in courts of record. In Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620, Judge Doyle said:

“Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.”

When a record is silent upon the subject of the argument of counsel, the presumption of law is either that argument was waived or it was omitted from the, record through the carelessness of the clerk. It would be a great reflection upon the intelligence and fidelity of the counsel, who represented appellant in the trial court, to assume that he allowed the case to be submitted to the jury without argument, unless it was done by consent of appellant, or that he allowed the case to be argued in the absence of appellant without objecting thereto, unless such absence was at the request of appellant. Any statutory or constitutional right of the defendant not inalienable may be waived, where it can be done without affecting the rights of others, and without detriment to the community at large, and where it does, not affect the jurisdiction of the court as to the subject-matter. A failure to insist upon such right in seasonable time will operate as an estoppel to his afterwards setting it up against the state. See State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091. By the express terms of section 6005, Rev. Laws 1910, this court.is forbidden to reverse any conviction on account of any error in the proceedings, unless, after an examination of the entire record, it appears that the error complained of has deprived defendant of some substantial right, or has resulted in a' miscarriage of justice.

Fourth. Counsel for appellant contends that this judgment must be reversed because appellant was not present when his motion for a new trial was argued. There are two conclusive answers to this contention: First, there is nothing in the record which indicates that appellant desired to be present when such argument was made, or that he did not consent that such argument might be made in his absence; therefore, even if this were a good objection, the failure of appellant to assert his rights at the time would operate as a waiver on his part of any right which he may have had in the matter. In the second place, there is no provision of law requiring that a defendant must be present when a motion for a new trial is argued. Such proceeding is no part of the trial proper any more than a motion for a change of venue or a motion for a continuance; but, on the contrary, a motion for a new trial asks a review by the judge of the trial, which has concluded. Counsel could, with as much show of reason claim that a defendant should be present in this court when his application for a new trial is argued, submitted, and decided. A trial begins when the jury are called into the box to be examined as to their qualifications (see Caples v. State, 3 Okla. Cr. 72, 104 Pac. 493, 26 L. R. A. [N. S.] 1033), and ends when the jury-have returned their verdict; and if it affirmatively appears from the record that a defendant, without consent on his part, was absent during any of such proceedings, the judgment will be reversed; but, as far as the law goes, no good reason can be shown why a defendant should be present when a motion for a new trial, a motion for a continuance, or a motion for a change of venue is being argued. It has been expressly decided in Oklahoma that such presence is not necessary. See Ward v. Territory, 8 Okla. 12, 56 Pac. 704; Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766; and Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356.

Fifth. In his brief counsel for appellant says: “The court erred in refusing the plaintiff in error the right to file a motion in arrest of judgment before sentence.” We have diligently searched the record and have failed to find that counsel for appellant asked permission or attempted to file a motion in arrest of judgment, and that the court denied him this right; we have also examined the record critically to find, if we could, as to whether or not there was any ground for arresting this judgment, and we find that there was none, and that, on the contrary, the proceedings .and papers in the case were all regular and in conformity to law.

Sixth. Counsel for appellant in his brief says that this cause should be reversed “because the court erred in overruling the motion for a new trial.” Counsel did not attempt to point out the error of the court complained of in the motion for new trial or show how appellant was injured thereby. On the contrary, he has assumed the proposition in controversy and has substituted assertion for evidence and argument. This court would thereby be at liberty in an ordinary case to entirely disregard this contention, but, on account of the gravity of this case, we have carefully examined the motion for a new trial to see if we could find any error therein complained of which would warrant this court in setting aside the verdict and judgment. We find that the motion for a new trial is merely a formal one, and the only specific errors of which it complains are that the verdict is contrary to the law and the evidence. There is also a general complaint that the court erred in its instructions to the jury, and we are of the opinion that the court did err in charging the jury on the law of self-defense and in submitting the issues of manslaughter in the first and second degrees. The state’s evidence makes out a case of deliberate and premeditated, assassination. The testimony of appellant makes out a case of mutual combat provoked by himself when armed with a deadly weapon, intending that it should result in the death or serious bodily injury of himself or deceased. Under his own testimony he could not invoke the law of self-defense. Neither do the circumstances proved mitigate the offense from murder to manslaughter in either-degree; but these errors of the court were in favor of, and not against, appellant, and therefore he could not have possibly been injured thereby.

We have read all the instructions of the court and analyzed them carefully, both by paragraphs and also in connection with each other, and we fail to find a single paragraph which is in the least calculated to influence the jury adversely to the rights of appellant. The trial of the case from beginning to end was eminently fair, and in no instance was appellant deprived of a single substantial right. We cannot say that the verdict of the jury is contrary to the law. Neither can we say that the verdict is contrary to the evidence. It was proved that appellant had repeatedly threatened to kill the deceased, growing out of a controversy between them with reference to a debt of 60 cents alleged by appellant to be due him from deceased, but which deceased denied. Appellant had said that he would either get his 60 cents or get deceased. This controversy was intensified by jealousy between the parties on account of Lucy Carrington. With reference to this matter, appellant had said, “The crazy son of a bitch is after my woman,” and had stated that if he ever caught deceased at the Carrington Hotel again he would kill him. Here again we have proof of our statement that illicit love is a most prolific source of crime and assassination among men. For a full discussion of this question, see Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657. It was proved that deceased went to the Carrington Hotel, which was a public house, on the day of the homicide, after his clothes, which he had left there to be washed by Lucy Carrington, and that deceased was unarmed at the time. It was proved that a few days before the homicide appellant purchased a pistol, and at the time of the difficulty he was going to the pump to get some water with his pistol in his pocket; that he came upon deceased at the back porch, and asked deceased what he was doing there. Deceased replied that he had come after his clothes. Appellant said, “I told you to keep away from here,” and, pulling his pistol, rushed upon and shot an unarmed man. Appellant then fled to the river bottom, and could not be found by officers until 8 o’clock that night, when he was arrested by a deputy sheriff. Appellant offered no explanation of his attempted flight. The jury could not believe that it arose from any cause other than conscious guilt. Here we find every element of murder, deliberately committed in a cowardly manner. In fact, the jury could not have reasonably arrived at any other conclusion.

Seventh. It is true that this court possesses the power of modifying a judgment and reducing the punishment of death to imprisonment for life. See Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; but this power, like the power to- pardon, parole, or commute sentences, cannot be arbitrarily exercised by any official of Oklahoma. No lawyer of respectable intelligence and learning, and who regards his reputation as such, will assert that either of these powers can be lawfully exercised, except for special reasons, which may arise in an individual case, or that they can be arbitrarily used so as to operate as a wholesale suspension or repeal of any law or provision of law. As a great misapprehension exists as to the right to commute the death penalty, and as this misapprehension has done infinite harm to the administration of law in Oklahoma, and as this is a death penalty case, it is imperatively necessary for this court, which alone has the right to finally construe the law and the Constitution in criminal cases, to declare the true meaning and scope of the right to commute the sentences of the courts. Courts are required by law to take judicial notice of any facts affecting a question pending before them which are of such general and public notoriety that every one will be fairfy presumed to be acquainted with them. See Hunter v. N. Y. O. W. R. Co., 116 N. Y. 615, 23 N. E. 9, 6 L. R. A. 246. The Supreme Court of the United States, in the case of Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200, said: “Facts of universal notoriety need not be proved.” In Wynehamer v. People, 13 N. Y. 378, the Supreme Court of that state said: “We must be allowed to know what is known by all persons of common intelligence.” To the same effect, see Town of North Hempstead v. Gregory, 53 App. Div. 350, 65 N. Y. Supp. 867. The courts also hold that judicial notice takes the place of proof, and is superior to evidence. See State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30; Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200; State v. Morris, 47 Conn. 179; Commonwealth v. Margynski, 149 Mass. 68, 21 N. E. 228.

It is a matter known to all persons of common intelligence in the state of Oklahoma that the Governor takes the position that legal executions are judicial murder; and that he refuses to permit them to be carried into effect, upon the ground that he would thereby become a party thereto; and that he has expressed his fixed determination to strictly adhere to this policy until the expiration of his term of office. As this is a capital conviction, and as the Governor’s action presents an absolute bar to the enforcement of the law in Oklahoma, we cannot, without a failure to discharge our duty, omit to take judicial notice of, and pass upon, this position of the Governor, as unpleasant as it is for us to do so. If we remained silent, the Governor and the people would have the right to think that the courts acquiesced in the position which he has assumed, when as a matter of fact nothing is further from the truth. We therefore cannot avoid deciding this matter.

That the position of the Governor is utterly untenable is shown by the following considerations:

First. There is no provision of law in Oklahoma which requires the Governor to approve a verdict assessing the death penalty before it cau be executed. Flis duty with reference to such verdicts is negative and not affirmative. He has nothing whatever to do with them, unless he may be satisfied that an injustice has been done in an individual case; then he may commute the sentence or pardon the offender; but this can only be done upon the ground that, upon the facts presented, the defendant was a fit subject for executive clemency, and that an exception should be made in his favor as against the general rule of law.

Second. It is not true that when a defendant is executed according to law the Governor is in any wise responsible therefor. The execution takes place in obedience to law and not because the Governor orders it; and the Governor has not a shadow of legal or moral right to interfere with the law, unless he can say upon his official oath that special reasons, applicable alone to the given case before him, justify such action. The Governor’s alleged conscientious scruples with reference to the infliction of capital punishment cannot lawfully justify his action in a wholesale commutation of death penalties. The Governor has no legislative powers at all; he can neither enact nor repeal laws, either directly or indirectly, which he does attempt to do when he sets aside the death penalty in all murder cases. The law recognizes the fact that some good men are honestly opposed to the infliction of capital punishment, but it prohibits such persons from passing upon this question. Paragraph 8, sec. 5859, Rev. Laws 1910, is as follows:

“If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty, in which case he shall neither be permitted nor compelled to serve as a juror.”

This provision of law precludes the Governor from commuting a death penalty, in a single case, upon the ground of his alleged conscientious scruples. So it is seen that he is not only not compelled to approve such a verdict, but that he is positively forbidden by law to allow his scruples to influence him in the least in his action. It would indeed be an idle thing for the Legislature to enact a law and then make its execution depend upon the whim or caprice of any juror or Governor. Jf the Governor’s position is correct, then we do not have a government of law in Oklahoma, but a government of men only. If it were necessary for the Governor to approve such verdicts before they could be carried into execution, then the Governor should have made his views known before he was elected, and he should have refused to take the oath of office. There is no logical escape from this‘conclusion. The Governor’s position can only be explained upon the hypothesis that he imagines himself to be a dictator, and that his will is supreme and above the law. In this the Governor is mistaken.

Third. During the last campaign • for the election of the present Legislature, which occurred after the Governor had served two years of his four years’ term, he took an active part in'the campaign and personally appealed to the people to elect a Legislature who would support what he called “my policies.” In that campaign he also made a vicious assault upon this court, which has inflexibly demanded the strict enforcement of all of the laws of Oklahoma. His position on the subject of capital punishment was then well known to all of the people of Oklahoma. His action in commuting the death penalties of a number of atrocious murderers had caused a great wave of indignation to-pass over the entire state. The issue was clearly drawn; and the advocates of, and those who objected to, the death penalty, debated the question as to whether or not capital punishment should be repealed. In fact, this was probably the most discussed question in the state. The Governor personally took part in a number of these debates. This is a matter of public history of which this court must take judicial notice. The election passed off, and the policies of the Governor were not indorsed by the people in the election of the members of the Legislature; on the contrary, a Legislature was elected which was hostile to the policies of the Governor, and which refused to repeal the law of capital punishment. If he desires to prove that he regards himself as a servant of the people, he should now no longer interfere with the execution of their will, or he should resign from his office.

Fourth. If it be conceded that the Governor’s position is correct, and that he has the right to suspend the execution of any provision of law of which he may not approve; and if it be true that the other officials of the state are answerable to him, and not to the people — then we have an empire ,in Oklahoma, and not a free state. This would establish a precedent which would justify any subsequent Governor, who might be opposed to the prohibitory liquor law, in commuting all jail or penitentiary sentences inflicted in such cases upon the ground that he did not like the law, and that he knew better than the people what should be done in such cases. The same principle would apply to all laws. Concede the principle contended for by the Governor, .and where will the matter end? It would utterly demoralize the enforcement of law in Oklahoma, and would convert the state government into one of men and not of law. What do the people of Oklahoma think of this?

A careful investigation of the authorities on this question has failed to disclose a single law writer who -has ever in the least sustained the position of the Governor. Mr. Bishop, one of the greatest writers of law that America has produced, says:

“Alike under our national Constitution and the Constitutions of the several states, either by express words or by construction, the government is divided into three separate branches — the executive, the legislative, and the judicial- — -and no one branch is permitted to discharge the functions of another. If the executive power cannot repeal laws directly, so neither has it any just right to undertake indirect repeals by pardon (commutation or parole). With us, a pardon (commutation or parole)- is properly grant-able only for some special cause arising out of the particular instance. But, if whenever there is an unavoidable and honest mistake it is the legislative will that the victim of the mistake shall be punished, the Governor has no right to open a pardon shop to frustrate this will. ■ It is an attempt to repeal so much of the law, and the power of repeal is with the Legislature. * * * Of practical importance — not exceeded by any of the ordinary expositions in law books, are some questions heretofore neglected by legal authors, relating to the principles which should guide the executive power in granting and 'withholding pardons (commutations or paroles).

“Public Motives, Not Private. — No official person, whatever his station or the nature of his office, is justified in performing any official acts from private motives, or in pursuance of mere private views. An executive officer,, asked to grant a pardon (commutation or parole) should neither comply nor refuse merely because he would personally be pleased to see the prisoner suffer or to see him go- free. He should act upon public consideration. For example:

“Appeal from Legislature. — He does not sit as a court of appeal from the Legislature. If he believes the law under which a prisoner is suffering to be unwise or unjust, still this opinion cannot properly incline him to grant the pardon (commutation or parole), because the power which makes and unmakes laws is not in him, and officially he is required to look upon the law as just and wise, however his private opinion may revolt. * * *.

“Proceed by Rule.- — The pardoning officer, therefore, should proceed by rule, as do the judges in the performance of judicial acts. Technically, the power of pardon (commutation or parole) is termed discretionary; so are a large part of the powers of courts. With a court, for instance, it is discretionary whether to try a cause when it is reached on the calendar, or to continue it. Yet this discretion should be exercised on public considerations, and according to rule, not from mere private impulses or views. And a judge who should continue causes or bring them on for trial as personal motives impelled, to the injury of suitors, would commit thereby a high' misdemeanor in office, for which he ought to be impeached. And the same would follow if the President or a Governor should act thus on private views in granting or withholding pardons (commutations or paroles).

“Practical Restraint — (Impeachment).—In popular writings, we often meet with injuriously false views on this subject. Nothing can be more pernicious than the opinion, sometimes afloat, which assigns to the President or Governor the authority to pardon (commute or parole) without limit, and denies to the impeaching power the right to- interfere. The granting of pardons (commutations or paroles) is discretionary in its nature; therefore it is necessarily the more open to control by the impeaching power. If it comes to- be understood that a single man, intrusted with the high function of pardon (commutation and parole), can open all the prisons of the country and let every guilty person go free, thus at a blow striking down the law itself, and not be himself punished for the high misdemeanor, the most disastrous consequences to- liberty and law will sooner or later follow. Such a conclusion is itself the annihilation of law, and only upon iaw can liberty repose.”

See Bishop’s New Criminal Law, vol. 1, pp. 117, 178, 179, 180, 181, 559, 561.

Mi'. Bishop cites authorities supporting this text, but it is so manifestly just, and as this opinion is already quite lengthy, we will not consume unnecessary time with further quotations.

The law of Oklahoma prescribes the penalt)'- of death for willful murder. This punishment, like most of our penal laws, was taken by the Legislature from the divine law. In the thirty-fifth chapter of the Book of Numbers, the Bible says:

“Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. And ye shall take no satisfaction from him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest.

“So ye shall not pollute the land wherein ye are: for blood defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.

“Defile not therefore the land which ye shall inhabit, wherein I dwell: for I the Lord dwell among the children of Israel.” •

We are also told in the nineteenth chapter of Deuteronomy:

“That innocent blood be not shed in thy land, which the Lord thy God giveth thee for an ’ inheritance, and so blood be upon thee.

“But if any man hate his neighbor, and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into’ one of these cities:

“Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die.

“Thine eye shall not pity him, but thou shalt put away the guilt of innocent blood from Israel, that it may go well with thee.”

M'any other passages of Scripture can be quoted to the same effect, for the Bible is absolutely unanimous in its statements that the legal punishment for willful murder shall be death.

Statistics show that in England, where capital punishment for murder is rigidly inflicted, within the last 25 years the volume of crime has decreased 50 per cent.; while in America, where capital punishment is rarely inflicted, the volume of crime has increased over 50 per cent, in the last 25 years. This shows that those persons who so bitterly denounce capital punishment are not infallible in their views, notwithstanding their assumption of superior intelligence and virtue; but we will not discuss the wisdom and justice of capital punishment. This is a question for the people or the Legislature alone. The supreme question is: Shall the laws of Oklahoma be enforced? One of the most mischievous tendencies of the present day is a disposition manifested among the people to set their individual judgments up against the law, and to assert their right not to obey any law unless it meets with their personal approval. This is anarchy, pure and simple. It is bad enough for private citizens to feel and act this way, but it is much more criminal for officials to do so, and the higher the official the greater the crime committed. All state officials have taken an oath to support the laws of the state. No Governor has the right to. say, directly or substantially, either by words or by actions, which speak louder than words:

“I think that capital punishment is wrong. I know that it is taught in the Bible, and is provided for in the laws of Oklahoma; but I occupy a higher plane than this. I am not such a barbarian as to believe this is right. I am a better judge of what punishment should be inflicted than is taught in the Bible, or than the ignorant, savage, and bloodthirsty people of Oklahoma have provided for in their laws. Therefore, notwithstanding my official oath, I will place my judgment above the law, both human and divine, and make my will supreme in this state, and will not permit capital punishment to be inflicted in Oklahoma, no matter what the law is, or how atrocious the offense committed may have been. All officials are only my personal servants and it is their duty to execute my orders, and not stop and inquire as to what the law is. The courts must recognize and bow to me as their master, and accept and follow my will as the supreme law; and if they dare to question my absolute right to do as I please about anything I will publicly brand such judges as fools and crooks, and charge that they have entered into a conspiracy with criminals and that they are using the law as a cloak to protect crime.”

Nothing could more impair the reputation of the state, nothing could be more demoralizing to respect for law, or more highly calculated to incite mob violence, than such conduct as this. We are taught in the Bible that:

“Because sentence against an evil work is not executed speedily therefore the heart of the sons of men is fully set in them to do evil.” (Ecclesiastes viii, 11.)

Some say that these passages of Scripture arc obsolete, and are not applicable to the present age of moral enlightenment and civilization; but many occurrences have taken place in Oklahoma in recent years which prove that these teachings of the Bible, like all other divine laws, are just as true and as applicable to the people of this day as they were in ancient times. We very much fear that, if some assurance is not given to the people of Oklahoma that sentences will be executed in the future, matters will go from bad to worse. If officials place their individual views above and defy the law, how can they expect that the people will respect and obey the law? It is the duty of officials to set an example of obedience to law. If officials do not obey the law, can they blame the people for taking the law into their own hands? This court will not render a single opinion which can be used in excuse for mob violence. It will to the last extremity defend.the exclusive right of the people to enact laws, and continue to demand, as it has uniformly done since the day of its organization, the strict enforcement of all of the laws of the state as enacted by the people or the Legislature, it matters not whose criticism and enmity it may incur thereby, or what amount of misrepresentation, abuse, and vindication may be heaped upon it therefor. The members of this court would be fools, cowards, and traitors if they took any other position.

This is the second time that this cause has been before this court on appeal. See 6 Okla. Cr. 430, 119 Pac. 278. On the first appéal the conviction was reversed for errors of law. We then stated that if the evidence for the prosecution was true it made out a case of murder; but we were of the opinion that sufficient latitude had not been granted appellant in the cross-examination of the witness Lucy Carrington, and we felt that it was possible that, had the proper latitude been granted on cross-examination, facts might have been developed which would so impair and destroy her testimony as to have warranted the jury in finding appellant guilty of m'anslaughter ; but, upon the second trial of this cause, the said Lucy Carrington was subjected to the most searching cross-examination, and no fact was developed which in the least .shook her testimony or impaired its credit. On the contrary, the answers given by this ignorant negro woman to every question asked leads us now to believe that her entire testimony was the truth; and the evidence, taken as a whole, is much more satisfactory as to the guilt of appellant than it was upon the former trial. In both trials the jury found the appellant guilty of murder, and in each instance assessed his punishment at death. There was nothing in either record which indicated that the jury were prejudiced against appellant or that they were ignorant, bloodthirsty barbarians. On the contrary, they were representative citizens of Oklahoma,-and men of ■ intelligence, fairness, and integrity. Each one was voluntarily selected by appellant, they saw the witnesses, and heard the testimony. We feel that we should respect their judgment, and should not disturb it except for just cause, and that the evidence makes out a case of murder. The law prescribes the death penalty in such cases, at the discretion of the jury. There is nothing in the record which even intimates that the jury were influenced by passion or prejudice in assessing the death penalty, or that any mistake was made in their doing so. Under these circumstances, no official of Oklahoma has the lawful right to interfere with the execution of their verdict.

As there is no legal reason why this case should be reversed or modified, we have no discretion but to affirm the judgment of the lower court.

The appeal in this case having prevented the execution of appellant at the time set in the original sentence, the judge of the superior court of Oklahoma county is directed to resentence appellant according to section 5979, Rev. Laws 1910, and also in accordance with the provisions of the act of March 29, 1913, on page 206 of the Session Laws of Oklahoma, 1913. It is true that the latter law provides that the punishment of death must be inflicted in the state penitentiary by electrocution, and was passed subsequent to the commission of the offense; but this is not an ex post facto law, so far as appellant is concerned, because under the provisions of article 5981, Rev. Laws 1910, which was in force when the offense was committed, the death penalty could be inflicted either by hanging or by electrocution, at the discretion of the court before whom the case was tried. Now it must be by electrocution, and the sentence of the court must be in conformity to the provisions of the act of 1913, here-inbefore referred to.

We find no error in the record, and the judgment of the superior court is in all things affirmed, and the court is directed to-take steps at once to have its sentence carried into execution as directed by law.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BEN CHAPPELEAR v. STATE.
    No. A-1837.
    Opinion Filed December 13, 1913.
    (136 Pac. 978.)
    1. INDICTMENT AND INFORMATION — Joint Offenders. Separate informations may be filed against defendants complained of • as being joint offenders, and together held for the commission of a single crime.
    2. SAME' — Eight to Amend — Time. By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered, and before the trial has begun.
    3. SAME — Preliminary Complaint — Variance. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information filed in the district court, a motion to quash, on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer, is unavailing, and was properly overruled.

      i. APPEAL' — Record—Presumption. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.
    5. LARCENY — Variance—Number of Animals Stolen. In a prosecution for larceny of animals, a variance between the information and proof as to the number stolen was immaterial.

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

    Ben Chappelear was convicted of cattle theft, and appeals.
    Affirmed.

      Jones & Bashore, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Washita county, on the 30th day of March, 1912, in which the defendant was found guilty of larceny of domestic animals, and his punishment assessed at imprisonment in the penitentiary for the term of five years. The evidence shows that Ben Chappelear and Tom Smith, residing near the town of Cloud Chief, learned that their neighbor, Charley Maddox, was going to ship some cattle from the town of Dill, on the Orient railroad, to Wichita. Maddox and his brother drove the cattle to Dill, arriving with them there about dark; the cattle were put into the railroad stock pens. Chappelear and Smith took five of the cattle out of the railroad stock pens, and drove them back in the general direction from which they had come, but by a different road; the loss of the cattle was discovered by Maddox when he went back to load them, and search was madé. Investigation led to the finding of the cattle tracks and horse tracks, and the subsequent finding of the cattle on the day following where they had been left, in a field about fifteen miles from where they had been taken; and that the horse tracks following these cattle were the tracks of the horses rode by Chappelear and Smith. Witnesses also testified to seeing Chappelear and Smith driving the stolen cattle. There was no evidence offered on the part of the defense. The record shows that on November 20, 1911, the county attorney of Washita county filed preliminary complaint with the county judge of said county, which said complaint charged Ben Chappelear and Tom Smith with the larceny of five head of cows, the property of Charley Maddox. The defendants were arrested, and waived preliminary examination, and gave the required bond and were released. That on the 14th day of December, 1911, the county attorney filed in the district court an information, charging Ben Chappelear and Tom Smith with the larceny of five head of cows. Defendants were arraigned and entered pleas of not guilty and present bond continued- That on the 20th day of February, 1912, the county attorney filed an amended information against the defendant Chappelear, charging the larceny of two head of cows, the property of Charley Maddox. Thereafter on the 15th day of March, 1912, this case came on for trial, and the state and the defendant announced ready, and a jury was impaneled to try the cause. Thereupon the county attorney read the information to the jury, and made his statement of the case. Thereupon the defendant’s counsel moved to quash the information, for the reason that no preliminary examination had been had or waived by the defendant upon the charge stated in the information, upon which the defendant was then sought to be tried; that the same had been filed without leave of court, or notice to the defendant, or his counsel, and that he had never been arraigned upon this information, nor had he pleaded to such information. Thereupon the defendant was arraigned and entered his plea of not guilty. The action of the court is assigned as error. The defendant has filed a brief of 31 closely printed pages, without citation of authority to support the contention made.

The argument advanced is that after the defendants had been jointly held for trial, the county attorney had no power other than to file an information, jointly charging them with the larceny as charged in the original complaint. Under the statute any defendant in a felony case' may demand that a separate trial' be awarded him; and, where the state asks it, a separate trial may be granted, in the discretion of the court. Section 5878, Rev. Laws 1910. In our opinion it is within the discretion of the county attorney to inform against them either jointly or severally, and separate informations requiring separate trial may be filed against defendants complained of as being joint offenders, accused of the commission of a single crime. People v. Plyler, 121 Cal. 160, 53 Pac. 553.

In the case of Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087, it was held by this court that:

“By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered, and before the trial has.begun.”

The question presented, as to whether or not the amended information charged an offense different from that charged in the preliminary complaint, will be answered by stating that this court has held in numerous decisions that when it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash, on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer, is unavailing, and is properly overruled. Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451; Morgan v. State, 8 Okla. Cr. 444, 128 Pac. 159; Sayers et al. v. State, ante, 135 Pac. 944.

Quantity and number are not ordinarily essential to be proved as alleged, and a variance as to the number of animals stolen is not fatal to a conviction. Where an information alleges the taking of a certain number of animals, the state is not bound to prove the exact number alleged in the information, because the number of animals stolen at any one time is immaterial and does not tend to change in any way the degree of the crime.

Counsel in their brief state:

“A review of the whole case will be necessary in order for this court to determine whether there is prejudicial error, and the court will presume that the defendant was prejudiced until it is made from the whole record to appear that he was not.”

The presumption is just the opposite. Error must affirmatively appear from the record. It is never presumed. Every presumption is in favor of the regularity of the proceedings had upon the trial. The general rule, often announced by this court, is that the plaintiff in error must affirmatively show prejudicial error, otherwise the judgment of the lower'court will be affirmed. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

After a careful examination of the record we are satisfied that under well-settled rules, sustained and upheld by the decisions of this court, no error has been committed,“ to the prejudice of the substantial rights of the defendant. The judgment of conviction is therefore affirmed.

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


author: FURMAN, J.

text:
      Ex parte NELSON HAWKINS.
    No. A-2131.
    Opinion Filed December 13, 1913.
    (136 Pac. 991.)
    1. CONSTITUTIONAL LAW — States — Lieutenant Governor — Absence of Governor — Exercise of Powers, (a) The Constitution of the state grants certain clearly defined powers to the Governor, or the acting Governor, and vests him with a wide discretion in the discharge of many of Ms duties. Courts have no right to substitute their discretion for the discretion of the Governor, or the acting Governor, or to nullify any of his official acts; unless it clearly appears that the Governor, or acting Governor, has usurped power not granted him, or has used his discretion in such a manner as to violate the law.
    (b) The Constitution intends, and the public necessities require, that some one, with the powers of Governor, should always be in the state to approve bonds, honor requisitions, make appointments, fill vacancies, quell riots, and transact all other business which pertains to this office, without expense or delay to the people or interruptions in the administration of justide.
    (e) A Governor may visit other states, and travel in foreign countries, as he pleases, without forfeiting his office, and may carry his title with him; but his powers as Governor become dormant the very moment ho crosses the state line, they reviving again,as soon as he returns within the borders of the state.
    (d) The Governor cannot lawfully say to persons who have-business with his office: “I am going into another state to attend banquets and play golf, or for any other purpose, and you must wait until it suits my convenience to return."
    (e) During the absence from the state or inability of the Governor to act, the Lieutenant Governor is vested with all of the powers of Governor.
    2. STATES — Powers of Lieutenant Governor — Absence of Governor. The powers of the Lieutenant Governor to act as Governor during the absence from the state, or the inability of the Governor to-act, are not derived from the invitation or request of the Governor; neither can they be denied at the pleasure of the Governor, but they rest alone upon the provisions of the Constitution of Oklahoma.

      3. PARDON — What Constitutes — Right to Revoke. An agreement or promise by the Governor, or acting Governor, to pardon a eonviet does not amount to a pardon. An absolute pardon takes effect upon its execution, and delivery, to the person pardoned, or to some one representing him, or as soon as it leaves the Governor for this purpose, and cannot be revoked by any official; but paroles and conditional pardons do not become effective and enforceable until they have been received and accepted by the prisoner, and they may be revoked by the Governor. Ex parte Crump, ante, approved and reaffirmed.
    4. HABEAS CORPUS — Pleading—Exhibits—Impeachment of Recitals —Inconsistent Position, (a) Where a petition for a writ of habeas corpus has attached to it a parole granted to a petitioner, which has been accepted and agreed to by him, he is bound by the conditions and recitals of such parole, and will not be permitted to contradict or impeach them.
    (b) Counsel are not permitted to take inconsistent positions in this court.
    Petition for habeas corpus by Nelson Hawkins.
    Petition denied.
    On the 21st day of June, 1909, petitioner was convicted of manslaughter in the first degree in the district court of Pontotoc county, and his punishment was assessed at confinement in the penitentiary for the period of 40 years. An appeal was taken to this court, and the judgment of the lower court was affirmed. See Hawkins v. State, 5 Okla. Cr. 276, 114 Pac. 356. During the month of September, 1911, Hon. Lee Cruce, Governor of the state of Oklahoma, absented himself from the state for a number of days; and during his absence, Hon. J. J. McAlester, Lieutenant Governor of the state, acted as Governor, and under the Constitution was vested with all of the powers of Governor, during the absence of the said Hon. Lee Cruce from the state of Oklahoma. See Ex parte Crump, ante, 13 o Pac. 428, decided at the September term of this court. On the 21st day of September, 1911, Lieut. Gov. McAlester, as acting Governor, issued a parole to petitioner, who was then confined under and by virtue of his conviction and the judgment thereon as hereinbefore stated. Upon its face this parole is dated the 21st day of September, 1911, at the hour of 9 :56 a. m. The parole was not presented to, and accepted by, petitioner until the 22d of September, 1911, as appeal's from the following indorsement thereon:

      “I, Nelson Hawkins,' hereby declare that I have carefully read, and do clearly understand the contents and conditions of the above parole agreement, and I hereby accept the same and ■pledge myself to honestly comply with all of the said conditions. Dated at McAlester, Oklahoma, this 22d day of September, 1911. [Signed] Nelson Hawkins. Witnesses: John P. Crawford. Ed. Lanier.”
    The record contains the following stipulation:
    “It is stipulated between the petitioner and respondent herein that the Frisco Passenger Train No. 407 from St. Louis to Oklahoma City on the 21 st day of September, A. D. 1911, being the train on which Governor Cruce returned to the state of Oklahoma, arrived within the borders of the state of Oklahoma between 8:04 and 8:06 a. m. of said date. Dated this the 20th day of November, 1913. [Signed] E. G. McAdams, Attorney for Petitioner. Charles West, Attorney General, Attorney for Respondent. C. J. Davenport, Asst. Atty. Gen.”
    Thereafter on the 29th day of September, 1911, the attention of Gov. Cruce being called to this matter by the county attorney of Pontotoc county, he revoked the parole granted by the Lieutenant Governor, and directed that petitioner should be taken into custody, and returned to the penitentiary to serve out that portion of his sentence which was unexpired at the date of said parole, in accordance with the original judgment and sentence of-said court. This was accordingly done, and petitioner did not attempt to assert any right under the parole granted by the Lieutenant Governor, until the 15th day of November, 1913, when he applied to this court for a writ of habeas corpus, based upon the ground that the parole granted by the,Lieutenant Governor was valid, and that the Governor was without power or authority to revoke the same. To this petition he attached, as Exhibit A, a copy of the parole granted by Lieut. Gov. McAlester, which upon its face shows that it was issued at the hour of 9:56 .a. m. on the 21st day of September, 1911. He also attached, as Exhibit B, a copy of the revocation of the said parole, issued by Gov. Cruce on the 29th day of September, 1911. On November 19th petitioner amended his petition for a writ of habeas corpus, and alleged that the date, which appears upon the face of the parole, was not correct, and was not on said parole when it was signed by said Lieutenant Governor; and further alleged it to be true that the parole was signed by the Lieutenant Governor about the hour of 8 a. m. on September 21, 1911.

      W. D. Halfbill and S'. V. O’Hare, for petitioner.

      C. J. Davenport, Asst. Atty. Gen., for- the State.
   FURMAN, J.

(after stating the facts as above). First. The Constitution of the state grants certain clearly defined powers to the Governor, or the acting Governor, and vests him with a wide discretion in the discharge of many of his duties. Courts have no right to substitute their discretion for the discretion of the Governor, or the acting Governor, or to nullify any of his official acts; unless it clearly appears that the Governor, or acting Governor, has usurped powers not granted him, or has used his discretion in such a manner as to violate the law. It is the duty of the courts to indulge every presumption in favor of the regularity of the official acts of the Governor, or the acting Governor, and only interfere where it is clear that he has violated the law.

This case presents simply a cold question of law, and must be decided as such without reference to any other considerations. Article 6, sec. 16 (Williams’ Const. Okla. sec. 165), provides in express terms that all of the powers of the Governor shall devolve upon the Lieutenant Governor during the inability of the Governor to discharge the powers and duties of said office, and until such disability shall be removed. No one will contend that the powers of the Governor can be exercised by him during his absence from the state, any more than that a judicial officer of Oklahoma could open court and try cases, or could discharge any other official duty in another state, or upon foreign territory. The office of Governor of Oklahoma was not created for the benefit of the man who temporarily holds his position. It is in no sense his private property; but it is alone for the people of Oklahoma, and must be confined to Oklahoma, and cannot be placed upon wheels and hauled all over the face of the universe. The Governor may go to other states, and travel in foreign countries, with all of the military pomp and glory of the Commander in Chief of the Oklahoma Militia, as he pleases, without forfeiting his office, and may carry his title with him; but his powers as Governor become dormant the very moment he crosses the state line, and they revive again as soon as he returns and is within the borders of the state. During his absence, or inability to act, the Dieutenant Governor is vested with all of the powers •of Governor. The business of the people requires that a Governor should always be in the state to approve bonds, honor requisitions, make appointments, quell riots, fill vacancies, and transact all other business which pertains to this office, without -expense or delay to the people, or interruptions in the administration of justice. An emergency may arise at any moment requiring the presence of the Governor within the state. The Constitution provides that there shall alwaj^s be some one within the state clothed with power to perform the duties of chief executive. The Constitution must be obeyed, let it please or displease whom it may. There is nothing more ridiculous than to contend that the Governor, as a matter of whim or caprice, can leave the state to attend banquets, or play golf, in other states, or for any other purpose, and say to those who have business with his office: “Wait until it suits my convenience to return.” This question was fully considered by this court in the case of Ex parte Crump, supra, decided at the September term of this court. All that was said by Judge Doyle in that case is approved, and reaffirmed. It necessarily follows that, if Gov. ■Cruce was within the borders of Oklahoma, at the time that the Lieutenant Governor granted this parole, it was unauthorized by iaw and is a nullity.

Second. Counsel for petitioner contend that becattse the Governor wrote a letter, before leaving .the state, to the Lieutenant Governor, inviting him to come to the capital and take ■charge of the office and see how it felt to be a real Governor, the Governor was estopped from denying the validity of any act of the Lieutenant Governor during the absence of the Governor from his office.

With this contention we cannot agree. It is not supported either by law or by reason. There is no rule of law as to how a real Governor should feel, except that he should act as the servant of the people. The powers of the Lieutenant Governor to act, during the inability of the Governor, are not derived from the invitation or request of the Governor; but they rest alone upon the provisions of the Constitution of Oklahoma. No matter what the Governor may have written the Lieutenant Governor, this neither added to, nor took from, his powers to act as Governor of Oklahoma during the absence from the state of the Governor.

Third. Counsel for petitioner contend that, because the application for the parole was presented to the Lieutenant Governor on the evening of September 20, 1911, and the Lieutenant Governor then considered said application, and stated that he would grant said parole, in contemplation of law, the parole was, in fact, granted on the evening of September 20, 1911, when the Governor was undeniably not within the borders of the state; but, counsel failed to cite any authorities supporting this contentipri. An absolute pardon takes effect upon its execution and deliyery, to the person pardoned, or to some one representing him,'■bn as soon as it leaves the control of the Governor. It cannot be revoked. See Ex parte Crump, supra. But this is not trueas to paroles or conditional pardons; they are revocable, and do' not become effective and enforceable until they have been received and accepted by the prisoner. Such acceptance is a condition precedent to the validity of the paroles, or conditional ■ pardon. The parole was not accepted by petitioner until the 22d day of September, 1911, which was 24 hours after the return of the Governor to the state of Oklahoma. The parole did not become valid and enforceable until it was accepted by petitioner. Suppose that a Governor, on the last day of his term, should promise an unconditional pardon to a prisoner, but through inadvertance, or on account of the press of other matters, should neglect to execute such instrument; who would contend that a prisoner could be released from custody upon such a showing as this?

Fourth. The original petition filed in this case alleged that petitioner was illegally restrained by the warden of the penitentiary, and alleged that he had been paroled on September 21, 1911, by Lieut. Gov. McAlester. Attached to the petition was the parole, which on its face shows that it was signed at 9:56 a. m., September 21, 1911; there was also attached to the petition the revocation of the purported parole, in which it is recited that Lee Cruce, Governor, was in the state at the time of the signing of the parole. The purported parole and its revocation were made a part of the petition.

It was therefore shown by the petitioner himself, by attaching to his petition the purported parole, and the revocation thereof, that the Governor has revoked the purported parole; and that the Governor was in the state at the time the Lieutenant Governor attempted to act. In the revocation of parole, attached to the petition, there is the recital that:

“The undersigned, Lee Cruce, Governor of the state of Oklahoma, was upon the said day and hour upon which the said parole was issued in. the state of Oklahoma, and the said parole being granted without the knowledge and consent or signature of the Governor.”

As stated, these exhibits, the purported parole and the revocation, were presented to the court by the petitioner himself. He was therefore in no position to say that the facts therein stated were not true. It is nowhere claimed that the day and hour upon which the parole was granted was not in the parole at the time of its acceptance by petitioner, or that it has since been in any manner altered. Petitioner having accepted the parole, he will not now be permitted to contradict any of its recitals. In Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549, 26 L. R. A. (N. S.) 110, this court said:

“The petitioner accepted and agreed to the conditions of the parole, thereby securing his release from imprisonment, and he is bound by its terms and conditions.”

Such contradiction will not be permitted under any circumstances, in the absence of an allegation that petitioner was deceived or misled by some condition or recital of the parole. See Rosson v. State, 23 Tex. App. 287, 4 S. W. 897. Attorneys will not be permitted to take inconsistent positions in this court. See Newton Henry v. State, ante, 136 Pac. 982, decided this term of court. Both the parole and the revocation thereof are documents of state, and public records, attested by the Secretary of State, and verified by the great seal of the state of Oklahoma. If it be permissible to contradict such instruments at all, which we do not concede,- it should only be done under proper allegations and absolutely clear proof.

Other interesting questions are raised by counsel for petitioner; but, owing to the conclusion at which we have arrived, it is not necessary to discuss them. As the record presented by petitioner shows that the Governor was in the state when this parole was granted and accepted by petitioner, the Lieutenant Governor was without power to act, and his attempted parole of petitioner was void and a nullity and conferred no rights upon petitioner. The Governor was clearly within his legal right in the revocation of the attempted parole and ordering the arrest of petitioner.

The writ of habeas corpus is denied, and the warden of the penitentiary is directed to retain petitioner in his custody, until the expiration of the time fixed for his imprisonment in the original judgment of the district court of Pontotoc county.

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


author: ARMSTRONG, P. J.

text:
    ACE RAY v. STATE.
    No. A-1820.
    Opinion Filed December 16, 1913.
    (136 Pac. 980.)
    1. HOMICIDE — Instructions—Evidence. It is not error for the court to charge the jury that under the law a person would be guilty of robbery if he took whisky, money, or other property from the immediate presence of the person of the injured party, against his will, by means of force or fear.
    2. SAME — Submission of Issues — Murder—Elements of Offense, (a) When the facts plainly disclose that a homicide occurred in an attempt to perpetrate a robbery or other felony, the issue of manslaughter should not be submitted to the jury.
    (b) Premeditated design to effect death is not an element of murder committed in the perpetration of a felony.
    3. SAME — Self-Defense—Refusal of Instructions. When the proof clearly discloses the fact that an accused was the aggressor and brought on the difficulty by violent and felonious action and without any justification from the deceased, and there is no proof indicating that such accused had withdrawn from the controversy, the law of self-defense cannot be invoked, and it is not error for the court to decline to give an instruction attempting to submit any such issue.

      Appeal from District Court, Washington County; R. H. Hudson, Judge.

    Ace Ray was convicted of murder, and brings error.
    Affirmed.
    /. R. Charlton, for plaintiff in error.

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

Plaintiff in error, Ace Ray, was convicted at the February, 1912, term of the district court of Washington county on a charge of murder; the information having charged him, with Vernie Neal, jointly with the murder of Jániés D. Terry in said county in December, 1911. Separate trials’ were had in which it appears that both parties were convicted and given life imprisonment. This appeal involves the trial of Ray only.

The proof on behalf of the state is to the effect that Ver-nie Neal and Ace Ray, on the night before,the killing, were drinking heavily and having considerable trouble. The record discloses that the}'- were engaged in a number of affrays. Early on the morning of the homicide they went to the place of Jesse Boyd and procured a revolver by force, which was taken charge of by Neal. A short distance from the scene of the homicide and immediately after the revolver was secured, the deceased and a person driving a buggy were met in the road. Neal drew the gun and forced the person driving the buggy to get out of the vicinity hurriedly. He then turned to the deceased, pointed the gun at him, and required him to go to his place of business and open up his house; he and the accused Ray following closely behind with the pistol continuously pointed at the deceased. He demanded that the deceased give them whisky and threatened to kill him if he did not. The deceased refused them the whisky. Some words were passed, and the deceased informed them again that he would not give them whisky, and replied, to their demands that they would kill him if he did not, that they would have to kill him. A shot was heard, and shortly afterward the deceased was found lying on the floor of his place, dead from the effects of a bullet wound. The accused made a statement in which he gave some of the details of the killing in line with the state’s contentions. These statements were never contradicted by any one. One witness testified to the immediate facts surrounding the killing, including the shooting. The principal efforts on behalf of the accused appear to have been expended in trying to contradict and discredit the testimony of this witness, which in many details was contradicted, and his story is more or less improbable and unsatisfactory. The proof on behalf of the state, however, independent of this testimony, is entirely sufficient to warrant a conviction. The theory of the state was that the accused and Vernie Neal conspired together to rob the deceased, James D. Terry, and that in the perpetration of this robbery Terry was killed. There is no doubt in our minds that this theory is correct.

Counsel for plaintiff in error have filed a memorandum brief in which it is argued that the court committed error in charging the jury as follows:

“You are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that on or about the T'th day of December, 1911, in Washington county, state of Oklahoma, the defendant, Ace Ray, and one Vernie Neal conspired and confederated together to wrongfully take from the possession of the deceased, James D. Terry, from his person or immediate presence, and against his will by means of force or putting him in fear of an unlawful injury, immediate or future, to his person or property, whisky, money, or other property, of no matter how trifling value,” etc.

Counsel contend that this instruction is erroneous and base their contention on the ground that whisky kept for an illegal purpose is not property and therefore could not be subject to larceny or robbery. For the purpose of this case, it is not necessary for us to determine whether or not whisky kept for illegal purposes is subject to larceny and robbery. It is sufficient to say that the proof nowhere discloses that the whisky sought by the accused and his co-conspirator was being kept for an unlawful purpose.

Counsel next contend that the court erred in failing to define the crime of manslaughter in the first degree. With this ' contention we cannot agree. The only error committed by .the court was in referring to manslaughter at all. There is no 'element of manslaughter disclosed by the proof in the record. "There is no plea of insanity invoked at the trial of the case, and "a man who is not so drunk but that he can have three or four ■fights and by main strength take from another a loaded revolver and go out on the highway intimidating and harassing the •citizens, and then undertake to' rob somebody of his money or -other property, is not entitled to mitigating consideration at the ■hands of the courts and juries of the country. The theory ‘■upon which the instruction of manslaughter was given was that, 'if the accused was too drunk to- form the premeditated design contemplated l^ law, he would not be guilty of murder. Counsel is in error in this, for the reason that premeditated design to effect death is not an element of murder committed in the perpetration of robbery.

The only -other proposition raised by counsel that we feel ■called upon to discuss is the question of the court’s failure to ■give the law of justifiable homicide. This assignment is wholly without merit. Nowhere in the record is there a suggestion of proof on behalf of the accused or the state that the law of self--defense was relied upon. We have said many times that under the law in this state a person cannot provoke a difficulty by •assaulting his opponent and killing him, and then justify him-self under the law of self-defense, and especially so when there is no provocation for the assault in the first place. Whatever reason there may be for the rule, it is much stronger when a person' goes out on the highway and at the point of a six-shooter marches an individual over the country into his place of business and demands that he give up his belongings or be killed, and then, when a difficulty ensues, kills him. There could be no element of self-defense pleaded. The only mitigating circumstances in this entire record, from the viewpoint of the writer, is that the accused, Ace Ray, was probably less guilty than his co-conspirator, Vernie Neal. Neal seems ¡to 'have been the leader and the man who used the gun; Ray making him a willing companion in all his controversies, encounters, and efforts. This probably accounts for the fact that the death penalty was not inflicted.

We find no reason to interfere with the judgment of the trial court. It is therefore in all things affirmed.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


author: DÓYRE, J.

text:
    FRANK McCARTY v. STATE.
    No. A-1856.
    Opinion Filed December 20, 1913.
    (136 Pac. 1102.)
    1. CONTINUANCE — Refusal of Continuance — Absent Witnesses. .In reviewing the refusal of a continuance asked on account of an absent witness, the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true, and when it is not probable that the absent witness would swear to the facts stated in the defendant’s affidavit, and where the record shows that the defendant was not put upon his trial until more than a year after ■ the indictment was returned, there is no error in refusing a further continuance.
    2. RAPE — Sufficiency of Evidence. In a prosecution for statutory rape, the evidence is held to sustain the verdict and that no reversible error was committed on the trial.

      Appeal from District Court, Bryan County; A. H. Ferguson, Judge.

    Frank McCarty was convicted of statutory rape, and appeals.
    Affirmed.

      ZJtterback, Hayes & MacDonald, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Jos. L. Hull, of counsel), for the State.
   DÓYRE, J.

Plaintiff in error was tried and convicted in the district court of Bryan county, upon an indictment returned by the grand jury on the 20th day of April, 1911, wherein he was charged with the crime of statutory rape, alleged to have been committed March 15, 1910, upon the person of one Anna Wilkerson, an unmarried female, under the age of 18 years, and of previous chaste and virtuous character. On the 30th day of May, 1912, in accordance with the verdict of the jury, the court sentenced the defendant to imprisonment in the penitentiary for the term of five years. To reverse the judgment an appeal was taken by filing in this court on November 7, 1912, petition in error with case-made.

The prosecutrix testified: That she was 17 years old in March, 1910; had resided in Durant with her parents for eight years, and had been employed in the office of the Pioneer Telephone & Telegraph Company for about five years. That she first met the defendant at his home in 1904, and began keeping company with- him in 1908. That in 1909 she went with him as often as once a week. That they became engaged in January, 1910, and were to be married the following fall. That he then went with her almost every night. That she would go off duty at 8 o’clock p. m., and he would come to the office for her and take her home. Sometimes they would go to a show, and they went driving several times. That they went driving on the night of the 15th day of March, 1910, and he succeeded in having sexual intercourse with her, which he afterwards repeated about a dozen times during the following three months, and as a result she became pregnant. That she informed him of her condition several times and asked him to make his promise good and marry her. That in August, 1910, she asked him, “What are you going to do ?” and he told her: “I don’t aim to do anything. You will never see me any more. I aim to leave on the Limited.” That he left and stayed away a month, and after his return he avoided her. Later he left Durant again. That she continued to work for the telephone company until the 6th day of March, which was the day prior to the birth of her child. That the defendant was the only man who ever had sexual intercourse with her, and they were not married.

Several witnesses, including the parents of the prosecutrix, testified that she was born at Whitewright, Tex., October 11, 1892.

The defense was that the prosecutrix was not of chaste, and virtuous character previous to the commission of the offense charged. The defendant did not take the stand himself, and offered no testimony to-disprove any of the testimony of the prosecutrix concerning his conduct with her. The only testimony offered in support of his defense was an alleged deposition of one Pink Mullins, taken at Parsons, Kan. In rebuttal, the state called this witness, Pink Mullins, to the stand, and he testified that the deposition, in so far as it reflected upon the chaste character of the prosecutrix, was forged and false. He also testified that he never had sexual intercourse with the prose-cutrix, and knew nothing which even tended to show she was not of previous chaste and virtuous character. He further testified that he came to Durant when the case was set for trial in January, and the defendant met him at the train and told him not to get off; that he would get the trial put off with him out of town; that he went on to Denison, Tex., and when he returned to Durant the defendant met him and gave him $30 and told him not to. get off the train; that he went on to Parsons. Kan., where he resided at the time of the taking of his deposition.

Arthur Cranston, the notary before whom the deposition was taken, testified that the witness Pink Mullins gave the deposition £s it was written.

The refusal of a continuance is assigned as error, and relied upon for a reversal of the judgment. The record shows that the defendant was arraigned on April 27, 1911. It appears to be incomplete as to the various times at which the case was set for trial, and the causes for continuance at such times. However, it appears that on January 2, 1912, the cause was reset for January 10th. On January 8th, the defendant applied for leave to take the deposition of one Pink Mullins. On January 10th, the case was continued on motion of the defendant. When the case was called for trial on May 22, 1912, the defendant filed his affidavit in support of another motion for continuance. His affidavit contained all the formal allegations required by law, and, among others, the following statement:

“That B. W. Williams of Hugo, Okla., is a witness properly and legally subpoenaed to appear in his behalf at the trial of this case; that the said B. W. Williams on the 21st day of May, A, D, 1912, which was yesterday, did not show up in Durant; and that one of the defendant’s attorneys, to wit, W. E. Utterbuck, talked to the said B. W. Williams over the telephone, and he attached hereto the statement of the said W. E. Utterback as to the said conversation. He further states: That the said B. W. Williams did not reach Durant this morning, but that his said attorney received from the said B. W. Williams a certificate from Dr. Rutherford which is hereto attached as a part hereof and designated as ‘Exhibit A.’ That the said B. W. Williams is not absent by the procurement or connivance of this defendant, and is not absent with his consent. That the said B. W. Williams is a material witness in behalf of this defendant, and if present, at the trial of this cause this defendant is informed and believes and alleges that the said B. W. Williams would testify as follows, to wit: He knows Anna Wilkerson, the prosecuting witness in this case, and has known her for nearly three years. That prior to the 15th day of March, 1910, the- time this defendant is alleged to have had intercourse with Anna Wilkerson, he knows of his own personal knowledge that the said Anna Wilkerson was not a virtuous woman. That prior to said date he had gone buggy riding with her at night and had intercourse with her. That all of said testimony is material in behalf of this defendant. That this defendant knows of no other witness by whom he can prove these facts; and that he cannot safely go to trial without the attendance of the said B. W. Williams.”

An affidavit of W. E. Utterback, Esq., one of the defendant’s attorneys, stated that he had talked to B. W. Williams, the day before, over the telephone, and Williams had told him that he could not afford to make a trip to Durant in his present condition.

The affidavit of Dr. B. C. Rutherford was also filed, wherein it is stated:

“This is to certify that Mr. B. W. Williams is suffering from traumatism of a large gland. Also inflammation of another large gland, and should be make a trip to Durant at present and miss his treatment, which would also aggravate the inflammation. I feel sure he would have to undergo a painful and dangerous operation.”

The order of the court overruling a motion for continuance is as follows:

“Now on this 22d day of May, 1912, comes the defendant herein and files his motion for a continuance, said continuance being asked for the reason that a witness B. W. Williams, who resides at Hugo, Okla., and who, it is alleged, is a material witness, is sick and unable to be in attendance on the court; the motion being supported by an áffidavit of Dr. Rutherford to the effect that the witness is affected with the swelling of some gland. After the presentation of the motion, the court personally made an investigation of the matter and found that the said witness, B. W. Williams, on the day the motion was filed and presented left the town of Hugo, Okla., his home, on the train and came west toward Durant to the town of Soper, a distance of eleven miles, where he remained until noon, returning to Hugo at that time. That he was on the streets of Hugo continually that day after his return, and that apparently there was nothing to prevent him from being in attendance on this court. That the defendant or his attorneys knew nothing of such investigation and were not advised of the same at the time said motion was presented or overruled. Because of the facts as found to exist by the court as above stated, and because of the indefinite and unsatisfactory nature of the affidavit of the doctor, supporting the motion for a continuance, and because of the fact that this case has heretofore been continued twice upon the application of the defendant because of absent witnesses, the motion is by the court overruled, to which order of the court the defendant duly excepted; whereupon the hearing of the case is postponed until May 23, 1912. And on this May 23, 1912, the motion filed on the 22d day of May, 1912, is renewed by the defendant on the same grounds and supported by the same affidavit. The motion is again overruled, and the cause directed to proceed to trial. To which ruling of the court the defendant duly excepts.”

The record further shows that, when the motion for continuance was overruled on May 22d, “the defendant asks that an attachment be issued for B. W. Williams; request granted.”

The trial began the following day and continued until May 24th. The record shows nothing further, however, with reference to the attachment issued for the witness Williams.

It is the right of every defendant in a criminal case to have compulsory process to compel the attendance of his witnesses, and that involves, as a matter of course, the time reasonably necessary to enable a defendant to procure and produce all legal and competent evidence necessary in his defense. In reviewing the refusal of a continuance, on account of the absence of witnesses, the record will be examined, and the evidence adduced at the trial will be considered by this court for the purpose of determining whether the alleged testimony was probably true. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825.

The record here shows that the indictment was returned on the 20th day of April, 1911, and'the defendant was put upon trial May 23, 1912, more than thirteen months later. The testimony of the witness Mullins is that he came to Durant in January, and that he defendant induced him to leave, saying “that he would get the trial put off with him out of town,” and it is undisputed that the lower court was imposed upon by the defendant in securing a continuance at that time.

Judging from the record, we do not believe that the witness Williams would have testified as it is alleged that he would. No affidavit of Williams was presented with the motion for continuance, nor in support of the motion for new trial. If said witness had been present and testified to the facts stated, we think the jury would not have given credence to such a story in the face of the evidence adduced. It is our opinion that the court did not err in overruling the application for a continuance.

The contention of the defendant’s counsel that the verdict is not sustained by the evidence is without merit. A case seldom appears in criminal annals showing more depravity in the defendant, or a greater outrage to common decency and public morals. There appears in the record no error prejudicial to any substantial right of the defendant.

The judgment of conviction is affirmed.

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