text:
    ALFRED CLARENCE BINGHAM v. STATE.
    No. A-10483.
    Jan. 23, 1946.
    (165 P. 2d 646.)

      Harold S. McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Alfred Clarence Bing-ham, was charged in the district court of Tulsa county with the crime of murder; was tried, convicted, and sentenced to death, and has appealed.

The information filed against defendant alleged that he killed his wife, Mary Bingham, on August 8, 1943, by cutting her throat with a sharp pocket-knife.

At the trial of the case, the killing of Mary Bingham was admitted by the defense and no evidence was offered or contention made that the homicide was excusable or justifiable, but the sole defense offered was that of insanity.

The defendant was a painter and paper-hanger by ' trade. He had been married to the deceased, Mary Bing-ham, for about 14 years. During their married life, the defendant had had periodic drunken sprees, and, on some occasions, it had become necessary for the deceased to take her three children and go to her mother’s home in Tulsa, to secure food and clothing for herself and the children. In 1941, the deceased obtained a divorce from defendant on the grounds of extreme cruelty and habitual drunkenness of defendant, but they continued to live together thereafter as man and wife. About three months before the homicide, the deceased, together with her three children, moved into the home of her brother, who lived in the city of Tulsa. She went to work for the Douglas Aircraft Company at Tulsa, and was supporting herself and the children. During this three-month period, the defendant had been drinking heavily. On the few occasions when he saw the deceased, he would curse her, accuse her of infidelity, and had threatened her life. On Sunday evening, August 8, 1943, the defendant came to the home of the brother of the deceased and inquired for the deceased. Mrs. Rusher, mother of the deceased, told defendant that she had gone to the picture show and was not at the house, to which the defendant replied, “Oh, I know where she is— she is out with some man.” The defendant had a knife in his hand at that time and told the Rushers that if the deceased came home with some man that he was going to kill her. At that time, little Jess Bingham, age 10, the son of defendant and deceased, came around the house to the defendant, and defendant took him by the hand and left.

Mrs. Rusher, sister-in-law of deceased, testified that about 30 minutes later she heard little Jess Bingham scream and that she and her husband ran to where he was screaming. That they found the deceased, Mary Bingham, lying against the curb. Her throat had been cut and she was bleeding terribly. She died in a few minutes. The defendant was not present when the Bushers arrived at the scene of the homicide, but had fled. He was arrested three days later by a Tulsa policeman. After the defendant was taken to police headquarters, he gave a detailed statement concerning the crime, which statement was reduced to writing and introduced in evidence. The statement was quite lengthy and this opinion will not be burdened by quoting all of it. The statement was in question and answer form and was taken in shorthand and later reduced to writing and signed by the defendant. Some of the essential parts of said statement are as follows :

“Q. Now, on the evening, the early evening of August 8th, what had you been doing? A. I had been in whisky joints and beer parlors. Q. Do you remember what ones? A. Different ones. Q. How long had you been drinking that day? A. All day long. Q. You didn’t work that day? A. No. Q. Had you seen your wife Mary earlier that day? A. No. Q. You knew where she lived at 713 W. 4th? A. Yes. Q. When did you first go to your wife’s home? A. Along late in the evening. It was dark. Q. Your wife was not home then? A. I didn‘t see her. Q. Did you see your son? A. Yes. Q. Where? A. He came out and met me. Q. This is the only time you were at your wife’s house that day? A. The only time that I know of. Q. When you went down to your wife’s house, did you have a knife? A. I had a pocket-knife. Q. What kind of a knife as best you can describe? A. Either a two blade or a three blade knife. Q. Where did you get it? A. I found it in a pair of painter’s overalls, about two weeks ago. Q. And you carried it from the time you found it? A. No, sir, not all the time. * * * Q. When you got up there to your wife’s home and your little boy met you, did you have any conversation with him? A. It seems like that I picked my finger nails with that knife. Q. Do you remember telling him what you were going ,to do to your wife if you found her coming home with another man? A. I have some faint remembrance of saying something to him but I do not know exactly what it was. Q. Do you remember telling your boy that you were going to rip her wide open if she came home with another man? A. I don’t know whether I did or didn’t. Q. How long had you been over there at your wife’s house with your little boy before your wife came home? A. Off hand, I couldn’t say. I’d been there talking for some time. Q. You were in the front yard there at 713 W. 4th when you first saw your wife coming toward the house? A. I was on the lawn there in front some place. Q. What did you do when you saw her coming? A. Seems like I met her down the street. Q. You still had your knife in your hand that you had been cleaning your finger nails with? A. I don’t know whether I had it in my hand or had pulled it from my pocket. Q. Did you say anything to her as you met her? A. Seems like we had some words. Q. Do you remember what you said or what she said? A. No, I couldn’t say that I did. Q. Do you remember slashing her with the knife at all? A. No, I cannot remember slashing her with the knife at all. I hit or cut her one or the other. I know that I did something to her, but don’t remember what. Q. She fell to the ground, didn’t she? A. I have a faint memory of her hollering or something like that and running backwards, and she fell and it flashed on me that something had happened. Q. When she fell did you go over to her again? A. No, I can’t say that I did. * * * Q. You know that you did strike her or cut her and she fell? A. Yes, I know that. Q. Now, after you say that she had fallen to the ground, what did you do? A. I got away from there as fast as I could because she had told me that if I ever hit her she would have me arrested. Q. You knew you had done wrong and you wanted to get away from there before you got arrested? A. Yes, it dawned on me that I had done something and I wanted to get away fore I got arrested. Q. Did you run when you left there? A. I ran some place and when I woke up the next morning, I was down there on the tracks, bnt where I went in the meantime, I don’t know. Q. What portion of the tracks were you on? A. Sand Springs trolley tracks. Q. What station? A. I don’t know but I’ll take them down there and show them where it was. Q. Did you have the knife when you woke up the next morning? A. No, I must have lost it or dropped it or threw it away. Q. About what time did you wake up the next morning? A. I don’t know, the sun was up. Q. Was there blood on your clothing? A. No, sir. * * * Q. After you woke up here on the tracks the following morning, where did you go and what did you do? A. Over to Newblock Park. Q. Did you see anyone you knew? A. I stopped and talked with a fellow over on Edison. * * * Q. What did you do the afternoon of the 9th of August, the next day after this thing happened? A. I went to look after a paint job. * * * Q. Where did you spend the night of August 9th? A. I slept out on the top of the hill, just out in the open. A fellow gave me a drink of whisky. 1 don’t know who he was. I met him out there on Union Street. * * * Q. Now on August 10th, what did you do that day and where did you stay? A. I went up to Avant and stayed until yesterday. Then I came back. Q. What did you do in Avant? A. I stayed there after drinking beer in a beer parlor and then dozed off outside. Q. What time did you start back to Tulsa from Avant? A. Sometime yesterday. I thumbed a ride. Q. Did you ride with someone you knew? A. No, just hitched a ride. Q. Did you come right back to Tulsa? I mean from Avant? A. No, I stopped in Sperry, or I was put out of the car in Sperry, and then I walked the highway and started up what I thought was Cincinnati, but got on the wrong road. I had read the papers and everything and if I had done wrong, I wanted to find out about it. Q. When did you first read the papers? A. Tuesday, I think. Q. Then you read that your son had made a statement that you had threatened to rip your wife wide open and that he said that you had threatened her life? A. Yes, I read that. * * * Q. Where did you spend Wednesday night? A. Well, that was last night and I spent it out there in the hills on the way to Tulsa. Q. Then this afternoon you went to Mr. Williams’ house? A. Yes, That is Jess Williams in Car-bondale. * * * Q.. The officers came out to Williams’ house and arrested you, is that right? A. Yes, I was eating supper and had just got through when they came. * * * Q. Now, on the night of August the 8th, you had been drinking? A. Heavy all day. Q. This statement that you have made here, these questions and answers. We have not threatened you in any manner or promised you anything. You have given us these answers voluntarily? A. Yes, you have been nice about everything.”

Jess Bingham, ten-year-old son of the parties, testified that on the night of the homicide he walked from the Rusher’s house up the street a short way with the defendant. That they sat down near the curb. That he went to sleep and laid his head over on his father’s lap. That when he was awakened, his mother was just about a foot away; that the defendant jumped up with a knife in his hand. That his mother stepped backwards a step or two and the defendant stuck the knife in her neck. That his mother screamed and fell near the curb and the defendant turned and fled.

The defendant did not testify, but his brothers and other relatives and friends who had known him for many years testified concerning his mental condition. There was no contention made at the trial that the defendant was presently insane, but all of the defense was based on the theory that the defendant was insane at the time of the commission of the offense. This issue was properly presented to the jury by the court’s instructions.

After motion for new trial was overruled and judgment and sentence pronounced, an appeal was taken to this court. Counsel for defendant filed a brief in support of the appeal and the case was assigned for oral argument. At the time of oral argument, counsel for defendant was quoting some of the testimony of the defendant’s witnesses, in which some of them had stated that defendant had always been irrational, or “was not right,” or “was not mental-minded,” at which time one of the members of this court asked counsel for defendant whether the question of present insanity had been raised at the trial and counsel for defendant stated that it had not been raised, but asked permission of the court to file a supplemental brief presenting to this court the question as to whether the court erred in failing of its own motion to empanel a jury to try the issue of the present insanity, after the testimony of the defendant’s witnesses showed that there was a doubt as to the defendant's present sanity. This request of counsel for the defendant was granted and a supplemental brief presenting this issue was filed and a response to the supplemental brief has likewise been filed by representatives of the state. This permission was granted because of the rules of criminal procedure adopted by this court whereby it has been held that, in a capital case, all errors alleged to have been committed during the trial of the defendant will be considered whether such assigned errors were presented to the lower court or properly raised by motion for new trial. Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259.

The first assignment of error in defendant’s brief is that the verdict is contrary to the evidence. In that connection, counsel for defendant state that the proof of both the state and the defendant conclusively shows that the defendant was insane at the time of the commission of the alleged crime. In presenting this assignment of error, counsel for defendant asserts the proposition that the hypothetical question asked the state’s witness, Dr. Ungerman, on rebuttal, did not present sufficient facts to afford grounds for a reasonable conclusion in that it failed to recite evidence in the case which was favorable to the defendant, but that the hypothetical question as propounded by counsel for the state was indefinite and improper.

The hypothetical question asked the witness by the county attorney was quite lengthy, covering six pages of the record. The record discloses that counsel for the defendant was given full opportunity to state any objections he had to the question as propounded by the county attorney, and at the suggestion of counsel for the defendant, additional facts were included in the hypothetical question. After counsel for defendant had suggested additional facts which he thought should be taken into consideration in propounding the hypothetical question and such additional facts had been included in the hypothetical question, the record discloses the following-statement addressed by the court to counsel for the defendant :

“Q. Is there anything else you can think of, Mr. McArthur? Mr. McArthur: No, sir. By the Court: All right, proceed with your question.”

An expert witness is one possessed of scientific knowledge acquired by study or practice or by both study and practice. Ordinarily, an expert is considered as a person who has experience and knowledge in relation to matters which are not generally known to the people. Where it is desired to introduce the testimony of an expert as to matters not coming within his personal knowledge, a hypothetical question should be asked the witness, and this question should be based upon and so framed as to include and be responsive to tbe entire testimony in the case and none other, and thereby make it applicable to the issues before the jury. Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L.R.A. 1915A, 1088; Brown v. State, 9 Okla. Cr. 382, 132 P. 359.

Expert testimony is admitted because the witness is supposed, from his experience and study, to have peculiar knowledge upon the subject of inquiry which jurors generally have not, and is thus supposed to be more capable of drawing conclusions from facts and basing opinions on them than jurors are presumably supposed to be. For this reason, it is important in propounding a hypothetical question to include therein all of the relevant facts in evidence before the jury, so that the opinion of the expert will properly be based upon the issues before the jury. The weight and credibility of the opinion of an expert is a question for the jury to determine, and, if such opinion is not well-founded, this may be shown by cross-examination.

We have closely read the hypothetical question propounded by counsel for the state. It substantially covers all of the material facts before the jury. It is true that, as pointed out in the brief of the defendant, there are statements by some of defendant’s witnesses which were not included in the hypothetical question. These statements, however, were cumulative and were mostly statements of conclusions by witnesses as to defendant’s mental condition and were not statements of facts. It is not necessary in presenting a hypothetical question to include the opinion of witnesses, but facts related by witnesses from which their conclusions are formed should properly be included in the hypothetical question. It is not expected that an examiner in presenting a hypothetical question should review in minute detail all of the evidence which has been introduced. It is sufficient if it substantially gives all of the relevant testimony, so that the expert will have before him the facts substantially as they have been presented to the jury. As here-inabove shown by the statement of counsel for the defendant to the court, counsel for the defendant could not think, at the time the question was asked, of any facts which should have been included in the hypothetical question other than the ones which were included. It is evident from an examination of the record that counsel for the state had given much thought to the preparation of the hypothetical question. It had been reduced to writing and was full and complete enough to fairly present the substantial facts in evidence before the jury to the expert, as a basis for his opinion.

Under the evidence of the defendant, it was shown that the defendant had a child born by his first wife who was abnormal. That he had two brothers who had been committed to an insane asylum and that one of them died in such an institution. That the defendant had an older sister who committed suicide in Chicago, and the coroner’s report, which the court allowed to be introduced in evidence, recites that the act was committed while she was in a state of insanity. It was also shown that defendant had an aunt on his father’s side who was adjudged insane in the State of Ohio. However, the issue of insanity at the time of the alleged commission of the crime was properly presented to the jury. There is no complaint against any instruction given upon this issue. Under the evidence of the witnesses for the state, including that of the expert psychiatrist, the defendant was sane. Under the evidence of many of the witnesses for the defendant, the defendant was suffering from chronic alcoholism and an inherited mental weakness which produced spells of delusions and insanity. From such evidence, the jury formed its opinion that the defendant was sane at the time of commission of the homicide and such finding should be binding upon an appellate court.

Complaint is made of certain statements of the county attorney allegedly made in his argument to the jury. All that the record discloses in connection with this assignment of error is as follows:

“And thereafter, to-wit, on the 8th day of October, 1943, at 8:30 o’clock P.M., during the argument of counsel for the state, to the jury, the following record was made:
“The Court: Dictate into the record your objection, Mr. McArthur.
“Mr. McArthur: Counsel just stated that nobody ever tried to get him declared insane prior to the institution of this case, nobody ever tried to have anything shown about his sanity as far as he could learn in the record of this case, and we object to that statement as being unwarranted, prejudicial, and we ask the Court to strike the same from the deliberation of the jury at this time.
“The Court: Overruled. And I want to say this, gentlemen, counsel has a right to draw his conclusions from the testimony and draw his own deductions from the testimony and argue the testimony to the jury, but the jury will have to take the testimony and the evidence in this case from the witness stand, not from counsel, and if the counsel were to misquote any evidence in the case, then the jury will take the evidence and not the statement of counsel. That goes for either counsel. With that statement, I overrule your objection and motion to strike. Mr. McArthur: We except to the ruling of the Court.”

It is true that the defense witness, Dr. Smith, testified that he had advised defendant’s wife and mother to have him committed to a hospital for treatment. As stated above, some of the witnesses for defendant testified concerning a family history of insanity and also about acts of the defendant which it was contended showed that he had a mental weakness. It ivas proper, therefore, for the prosecuting attorney, on cross-examination, to inquire as to whether any steps had ever been taken to have the defendant adjudged insane and committed to an institution for treatment, and this was, likewise, a proper subject of comment in the argument to the jury.

It was also alleged in the motion for new trial that the county attorney in his closing argument referred to the defendant as a “no-good, drunken bum.” That the prosecutor further stated: “If this isn’t a case for the electric chair, then someone ought to tell the warden to chop it up into toothpicks for the boys to use down there.” And that the county attorney, also, stated, “As soon as the state found out what the defense would be in this case, we brought what we considered the best psychiatrist within 500 miles to testify to the defendant’s sanity.”

If these statements were in fact made by counsel for the state, the attorney for the defendant did not attach enough importance to them at the time they were made to interpose an objection or to have such statements incorporated in the record by the court reporter. The only way they appear in the record is through a statement of counsel for the defendant made to the court in support of his motion for new trial. Assuming for the purpose of disposition of this question that such statements are true excerpts from the argument of the county attorney, still, we do not believe that they are so improper as to require a reversal or modification of the judgment. It would have been better if the entire argument of the prosecutor had been incorporated in the record. This court, then, could have known exactly what was said in the argument and how the statement purportedly made by the prosecutor fitted in with the balance of his argument. It is difficult for an appellate court to look at one isolated statement plucked from an argument and say that that statement by itself is so prejudicial as to cause a reversal. Enough must appear in the record to enable the court to determine from an examination of the entire argument whether the particular statement complained of is prejudicial and improper. A court should be liberal in allowing counsel for both the state and the defendant to present his argument. However, the arguments should not be presented in such a way as to confuse the jury as to what is argument of the prosecutor and what is evidence for their consideration. For that reason, we have held that it is improper for the prosecutor to state his personal opinion as to defendant’s guilt. Thurmond v. State, 57 Okla. Cr. 388, 48 P. 2d 845.

It is next contended that the verdict is excessive and that a review of the entire record will show that the jury was working under a strain imposed by the trial judge who worked them late hours in an effort to finish the case before Sunday. The question of procedure to be followed during the trial, including the time of starting and recessing each day, is necessarily a matter resting in the sound discretion of the trial court, and, before this court would interfere to set aside a verdict because certain of the evidence had been received at a night session, there must clearly be shown that such action of the court resulted prejudicially to the defendant and constituted an abuse of judicial discretion. Such is not shown by the record herein.

We now consider the most important question presented by this appeal. In the supplemental brief of the defendant, it is contended that the trial judge owed a duty, after hearing the testimony from various of the witnesses for the defense, to stop all trial proceedings and empanel a jury on his own motion to inquire into the present sanity of the accused. It is admitted that counsel for defendant never at the beginning of the trial, nor during the trial, nor at the close of the trial, nor at any other time, ever raised this question by motion or by any suggestion of counsel for the defendant. It was not one of the assignments of error attached to the case-made, but, as was herein above pointed out, it arose because of a question asked counsel for defendant by a member of this court at the time the case was assigned for oral argument.

22 O. S. 1941 § 1162, provides:

“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”

It has been held that the doubt of defendant’s sanity mentioned in said action may arise in the mind of the court on application for a continuance, motion for a new trial, motion in arrest of judgment, by ex parte affidavit or declaration of a bystander, or the court on its own motion; and, while the court cannot act arbitrarily in the matter, it has the right to look to the source of the information and come to a proper conclusion from all of the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant. He may also consider in that connection the fact that the question of insanity was never raised. Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857; Johnson v. State, 73 Okla. Cr. 370, 121 P. 2d 625; Signs v. State, 35 Okla. Cr. 340, 250 P. 938.

In all cases where such question has been presented to this court, there was a request, either at the beginning of the trial or before judgment and sentence was pronounced upon the conviction, that the court empanel a jury to try the question of the defendant’s present sanity. In no case, so far as we know, has this issue been presented on appeal in the absence of some request made to the trial court for an inquiry into the defendant’s sanity.

There is some language in the opinions of this court which lend support to defendant’s position. We refer to the statement set forth in the case of Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139, 142, which quotes from the case of People v. Lee Fook, 85 Cal. 300, 301, 24 P. 654, and which statement is later quoted in other cases, and is as follows:

“If there exists in the mind of the court a doubt as to the sanity of the defendant, and this doubt arises at any time during the trial, it is the duty of the court to stop the trial, and have determined the sanity of the defendant before further proceeding.”

However, our statute was adopted from the Dakota Code and not from the Penal Code of California. The California Code specifically provides when an indictment is called for trial, or any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arises as to the sanity of the defendant, the court must order the question of his sanity to be submitted to the jury. Section 1368, Part 2, Title 10, chapter 6, Penal Code 1941.

Our statute herein above quoted, unlike the California statute, provides for a trial of the question of present sanity under two conditions: First, when the indictment or information is called for trial, and, second, when, after the conviction, the defendant is brought before the court for the pronouncement of judgment. There is no provision for such a trial after a defendant has announced ready for trial and a jury has been empaneled. Under the California statute, a provision is set forth in the statute with reference to the disposition of a jury where the doubt of defendant’s present sanity arises during the trial, in order to prevent a plea of former jeopardy being interposed at a second trial. There is no such provision in the Oklahoma statute, and, if contention of counsel for defendant were correct, that it was the duty of the trial court, where a doubt of sanity arises during the trial, to halt the trial and empanel a jury to determine the question of defendant’s present sanity, and the trial judge of his own motion should dismiss the jury then empaneled to try the defendant upon the question of his guilt or innocence of the crime charged, it would appear that if a defendant should be adjudged sane and later brought to trial, he could enter a plea of former jeopardy. Other questions would, also, arise which to our minds show that it was not the intent of the Legislature to provide for the stopping of a trial and the empaneling of a jury to try the issue of present sanity. Suppose that the court holds a trial jury together and, after a trial on the question of sanity, the jury hearing that matter decides the defendant is insane, would the trial on the merits be postponed for an indefinite period and the jury held together until the defendant discharged from the asylum? Such procedure would almost have to be followed or defendant could plead former jeopardy and prevent any further prosecution.

We adopted our section of the statute here involved from Dakota in 1890. This section appeared as section 7567, Compiled Laws of Dakota, 1887. Said chapter of the Dakota Code bears this title: “Inquiry into the Insanity of the Defendant Before Trial or After Conviction.” The wording of this Title certainly makes its meaning evident.

The next question then arises as to whether, under the evidence before the court and in the absence of a request from defendant’s counsel, the trial court should of its own motion have empaneled a jury before pronouncing judgment on the conviction to determine the issue of defendant’s present sanity.

Before a trial court empanels a separate jury to try the issue of defendant’s present sanity, under the statute, a doubt must arise in the mind of the court. It is true that the court may of its own motion in the exercise of sound discretion, in the absence of a request from defendant’s counsel submit the question of defendant’s sanity to the determination of a jury, but the existence of a doubt as to defendant’s sanity must arise from facts and circumstances of a substantial character. In other words, there must exist reasons to believe that the claim of insanity made on behalf of the accused is genuine and not simulated as a means of defeating or delaying the law’s penalties in cases where all other means of evading punishment would seem hopeless. The fact that able counsel for defendant does not request a trial of the issue of the accused’s present sanity would certainly weigh heavily with the court in determining whether there is a doubt of defendant’s present sanity.

The contention of counsel that sufficient facts had been brought to the court’s attention to raise a doubt as to the defendant’s sanity is based upon conclusions of some of the witnesses for the defendant. These witnesses, mostly members of the family of the defendant, made the following statements:

“I certainly never found him responsible in any way.”
“He never has acted too good at any time.”
“He has not been normal most of his life.”
“He always looked awful wild.”
“I thought he was insane.”
“He always acted peculiar.”
“I believe he has always been crazy.”
“He always acted different.”
“He was never responsible.”
“He was insane at times and erratic.”
“He has grown worse year in and year out and talking crazier.”
“He always talked wild and had a silly giggle.”
“He acted irrational when he was drinking.”

These are statements of opinion and very few facts are given by the witnesses which would justify the forming of such conclusions.

It is true as argued by counsel for defendant that, if the defendant is actually insane, and a doubt has arisen in the mind of the court, counsel for defendant cannot waive inquiry as to the question of defendant’s sanity. Signs v. State, supra.

The conclusions of the witnesses herein above stated and all of the testimony on behalf of the defendant was for the purpose of laying ground work in support of his plea of not guilty by reason of insanity at the time of the homicide. The statements of witnesses that he would act irrational at times and the testimony concerning a family history of mental weakness were all introduced in evidence by counsel for defendant to bolster his claim that the defendant was insane at the time of the commission of the homicide. Frequently, we see such testimony introduced in cases to support the claim of temporary insanity at the time of the alleged commission of the crime. Since counsel had not requested a separate trial on the question of the defendant’s present sanity, but was resting his case solely upon the question of defendant’s insanity at the time of the commission of the alleged crime, the court was justified in concluding that there was no sufficient basis for the establishment of a doubt in his mind as to the defendant’s present sanity. Although defendant did not testify, he was present during all of the proceedings and the trial court had an opportunity to observe his demeanor during the trial. Under such circumstances, we cannot sustain the contention of counsel that the failure of the court to empanel a jury to try the issue of defendant’s present sanity in the absence of a request therefor was an abuse of judicial discretion.

If the defendant is insane or has become insane since his incarceration in the penitentiary (neither of which has been suggested to this court), the law has provided ample safeguards to fully protect him from punishment and to make an inquiry into his mental condition.

22 O. S. 1941 § 1005 provides a method for an inquiry into the sanity of a prisoner in the penitentiary where the warden has reason to believe that he may be insane or that his mental condition is snch as to justify an inquisition. The Governor of the state, likewise, has power to appoint expert alienists to observe the defendant and make an inquest into his sanity and, in this case, we recommend that such action be taken by the Governor before carrying out the execution of his sentence.

The case is affirmed.

The original time for execution having passed owing to the pendency of this appeal, it is considered, ordered, and adjudged, that the judgment and sentence of the district court of Tulsa county be carried out by the electrocution of the defendant on Thursday, April 11, 1946.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    CORNELIUS FRANK v. STATE.
    No. A-10534.
    Jan. 23, 1946.
    (165 P. 2d 844.)

      Nolen & Boss, of Okemah, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bill Biggers, Co. Atty., Seminole County, of Wewoka, for defendant in error.
   BAREFOOT, J.

The defendant, Cornelius Frank, was charged in the district court ■ of Seminole county with the crime of assault with intent to kill, and was by a jury convicted of the crime of assault with a dangerous weapon, and his punishment left to the court. The court sentenced him to one year in the State Penitentiary, and from this judgment and sentence he has appealed.

In his petition in error defendant sets out six assignments of error, but in his brief states that he wishes to urge only two of them.

The first assignment of error is:

“Error of the court in permitting the county attorney to argue to the jury that it was necessary for the defendant to be in real danger at the time the shot was fired or the attack was made upon complaining witness.”

Neither the opening statements of the attorney, nor the arguments are set out in the case-made, and for this reason cannot be reviewed. By numerous decisions of this court, the rule is well settled that misconduct of the county attorney in Ms argument to the jury can only be shown by being properly incorporated in the case-made, or by bill of exceptions duly allowed, and, when not so preserved in the record, can not be shown by mere recitals in a motion for new trial. Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Quitman v. State, 35 Okla. Cr. 245, 250 P. 441; Bone v. State, 43 Okla. Cr. 360, 279 P. 363; Trotter v. State, 77 Okla. Cr. 368, 141 P. 2d 812; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300.

The second proposition urged is:

“That the verdict was contrary to the law and the evidence.”

Defendant was charged with the crime of assault with intent to kill, under 21 O. S. 1941 652, and was convicted of the crime of assault with a dangerous weapon. It has often been held by this court that one charged with the crime of assault with intent to kill may be convicted of assault with a dangerous weapon as an included offense. Murphy v. State, 79 Okla. Cr. 31, 151 P. 2d 69; Compton v. State, 74 Okla. Cr. 48, 122 P. 2d 819; Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910; and cases cited. The penalty prescribed by 21 O. S. 1941 § 645 provides the punishment of one convicted of the crime of assault with a dangerous weapon at imprisonment in the State Penitentiary not exceeding five years, or in the county jail not exceeding one year. As hereinbefore stated, the court assessed the punishment of this defendant at one year in the State Penitentiary.

The record discloses a state of facts about as follows: The defendant is a full-blood Creek Indian, and the prosecuting witness a Negro. The prosecuting witness, Simon Mustin, had rented land from members of defendant’s family for a number of years, defendant testifying that he had known the prosecuting witness all of his life. During the years 1938, 1939 and 1940 Mustin had lived on the allotment of Amanda Frank, the mother of defendant, and they had a lawsuit involving the term of the lease, and the rents due, in which the prosecuting witness seems to have prevailed. The prosecuting witness moved from the place some time about the first of the year 1941. On the date of the difficulty, March 11, 1941, Mustin had gone on the land of Amanda Frank, which the defendant was occupying, and. was loading some cane feed. He testified that the defendant drove up in his car, jumped out with a shotgun in his hand, and said, “I come to kill you.” The defendant testified that he had seen a boy in a wagon drive in, but did not see the prosecuting witness; that he went down to investigate and found Mustin loading the feed, and asked him what business he had there; that Mustin swore at him, and finally told him to “Wait till I go get my gun,” and started to walk away. When he did so, defendant shot him six times with number four bird shot. Mustin’s testimony was that when defendant got out of the car with the gun, and announced that he was going to kill him, he stuck the pitchfork he was using to load the feed in the ground, and walked around the wagon, and when he turned his back, defendant shot him.

The boy who was with Mustin had been in the Army about one year at the time of the trial, and the doctor who treated him for the gunshot wounds had died. Simon Mustin and Bud Heiskill, a constable, testified for the state; and the defendant, his mother and the constable Bud Heiskill, testified for the defendant. The jury, the court and the attorneys retired to the juryroom, where the prosecuting witness exhibited his back, testifying that the shots had penetrated so deep it was impossible for tlie doctor to remove them. The constable testified that he saw the prosecuting witness the day following the trouble, and that he saw where the shots had taken effect in his body, that “he was shot from above the knees clear on up to the back of his neck.”

The prosecuting witness was 40 years of age, and there was some evidence that he had been in trouble prior to this time. The defendant was 28 years of age, and had never had any trouble before. Counsel for defendant argue that the defendant and his mother, being full-blood Creek Indians, are unable to speak fluently and understand the English language. There is nothing in the record to indicate that they did not fully understand the proceedings, and no interpreter was had or suggested.

Since the facts proven and the credibility of the witnesses are within the province of the jury, this court is very reluctant to reverse a case on the insufficiency of the evidence. The rule is that the Criminal Court of Appeals will not reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, or is contrary to the evidence, unless there is no substantial evidence from which the jury could rationally conclude that the accused is guilty; or where the verdict is based on such weak and inconclusive evidence, or is so clearly against the weight of the evidence as to convince the court that the jury erred in its judgment on the facts; or that the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion or prejudice. We find nothing in this record to indicate that this was true in this case. Clogston v. State, 34 Okla. Cr. 209, 245 P. 905; Hunt v. State, 81 Okla. Cr. 114, 161 P. 2d 82; Lewis v. State, 81 Okla. Cr. 168, 162 P. 2d 201.

The judgment of the trial court is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    FRANK HOLMES GRINDSTAFF v. STATE.
    No. A-10506.
    Jan. 30, 1946.
    (165 P. 2d 846.)

      Paul Showalter and Looper & Sturdevant, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Frank Plolmes Grind-staff, was charged in the district court of Oklahoma county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve four years in the State Penitentiary, and has appealed.

The defendant was charged' with shooting and killing one Joe Young with a .410 gauge shotgun in one of the tourist cabins forming the Sunset Tourist Court located at 2909 South Walnut street, in Oklahoma City.

The defendant was married but not living with his wife at the time of the homicide. On June 6, 1943, the defendant and one Edith Roberts rented cabin No. 12 of the Sunset Tourist Cabins, giving their names to the owner and operator of the cabins as Mr. and Mrs. Frank Grindstaff. They continued to occupy this cabin from June 6, 1943, to the date of the homicide on July 22, 1943, although on some occasions Edith Roberts stayed overnight at her home at 700 S.W. 4th street, in Oklahoma City. The deceased, aged 22, and his wife lived in an apartment in the vicinity of the cabin occupied by the defendant.

The defendant and deceased had been acquainted for two or three months before the homicide occurred. They had been doing carpenter work together at Midwest City. They would drive to their work each day in defendant’s automobile. On the day of the homicide, the defendant and the deceased did not go to work, but spent the day loafing and drinking beer. About 6 o’clock p. m., they returned to defendant’s cabin. Edith Roberts testified that she was there and started a fuss with defendant because the defendant had been drinking. She and the defendant had considerable argument, during which the defendant shoved her down on the bed and, also, knocked her to the floor and cursed and abused her. During this time, the defendant told the deceased to go home as the quarrel was between him and Edith, to which the deceased said, “If you will give me a good reason, I’ll go, but you know that I don’t want to go home.” The deceased gave the defendant his car keys and got up and left.

Edith Roberts also testified that during the altercation between defendant and Edith, she took her purse and left the cabin, but after she had gotten across the railroad track the defendant called her back and she came back into the house and, in a few minutes, the cursing and abusing by the defendant started again. That after Joe Young had been gone about five minutes, he came back into the cabin and went into the bathroom. That he came out of the bathroom in a few minutes and sat down in the room where she and the defendant were quarreling. According to her testimony, Grindstaff commenced to tell the deceased to go home and finally the deceased said, “If you will just take me and my tools home, when I get there with you, I’ll knock your block off.” That when she heard this, she jumped and ran out the back door and had just stepped off of the steps when she heard a shot. That she had run past two of the cabins and turned and saw the defendant standing in front of his cabin. The she saw some people standing-outside the cabin and asked them where Joe was and they told her he was in one of the cabins up in front. That she went to this cabin and saw the deceased had been shot and the right side of his face was cut from the glass window in the door.

According to the testimony of the defendant, the deceased died solely because of accident and misfortune which occurred by the defendant’s trying to wrest a gun from the deceased. His exact testimony in respect to this is as follows:

“Q. Now while you were sitting there, just tell this jury exactly what happened. A. Well, Joe wanted me to take him and his tools home and he cursed me and wanted me to do him a fayor, to take him and his tools home and he would knock my damn head off, my block off — He was coming at me all of the time, and when he did that I raised my chair up and he said, T could kill you with my bare hands if it wasn’t for bungling them up again.’ And he reached over in the corner and grabbed this gun by the barrel, and when he did I grabbed it by the stock and we scuffled oyer the gun, and the next thing I knew it went off. That is all I know.”

W. J. Landis, a police officer of Oklahoma City, testified that he was off duty and. going home when he heard the shot at the Sunset Tavern. That he went to cabin No. 3 and, as he walked in the door, the defendant walked out. That he saw the deceased lying on the bed. That he asked Grindstaff if he was the one who shot the man and Grindstaff said he was. That the policeman then asked him where the gun was and defendant led him to cabin No. 12, “reached behind the door, and pulled out a .410 gauge, single-barrel shotgun, handed me the gun and told me that was the gun he had shot the man with.”

Officer Yanscoy testified that he and Officer Peddi-cord made an investigation of the shooting shortly after it occurred. That they examined cabin No. 12. That the glass in the south door was broken from the inside toward the outside. That he talked to defendant about the shooting and defendant said that he and deceased got into an argument. That the deceased Young told the defendant that he wanted to take his girl friend out and he asked Young to leave three different times and Young did not do it. That Young told him to shut up or he was going to beat his head off, and he knew Young could do it because he had done it before to a man and that he was scared of him and, when Young hit him in the cabin, he grabbed the shotgun sitting behind the door and shot Young in the stomach right at the belt-line.

One Pierce testified that he lived in a trailer house about 10 or 15 feet from the cabin of the defendant. That shortly after he arrived home from work on July 22, 1943, he heard a noise that sounded Jilee a chair or something falling and he looked over in defendant’s cabin and saw Edith Roberts laying on the bed and she was saying to quit hitting her, to stop; that all she wanted to do was get out of there, and that defendant would tell her to shut her mouth and, during the argument and fight, something went through the screen, but that he couldn’t tell what it was. That Edith came out of the door and walked east and defendant came out, grabbed her by the arm, and pulled her back inside. That he could hear them arguing on the inside and he heard the deceased say, “As far as I am concerned, you are wrong, Prank.” ■ That a short time later, Edith came out of the cabin and ivent east across the railroad track. That defendant came out of the cabin and called her back to the cabin. That a short while later, defendant came out to his car, opened up the trunk, and told the deceased there was his tools, and he could get them now. That the defendant Grindstaff went back into the cabin and just a short time after that, he heard a shot. That he jumped to his door and saw Edith come out of her door and say, “Oh, my God! He shot that boy!” That he went to the cabin where the deceased was and heard him calling for a doctor. That the argument in the cabin lasted about 30 minutes before the shot was fired. That he could not see the defendant in the cabin, but he could hear him cursing. That immediately after the shot was fired, he saw Edith run out of the door.

Mae Risch testified that she was the caretaker of the Sunset Cabins and was working there on the evening of July 22, 1943. That she knew the defendant and Joe Young. That she heard Edith Roberts scream about ten minutes before the shot, and went to the door and saw Edith and heard the defendant tell her to shut her mouth. That she heard the shot and went to her door just as the glass fell out of cabin No. 12. That Joe Young opened the door and came out. That she met him about halfway and took him to cabin No. 3, laid him on the bed, and called a doctor. That Edith came running to the cabin shortly with Grindstaff running after her. That she said she was afraid of Grindstaff. She told Edith Roberts to go out the back door and she, the witness, would take care of Grindstaff. That Grind-staff sat down in a chair and said “they couldn’t do nothing to me because he could have killed me with his fist if I hadn’t have shot him.” That Grindstaff went into the room where Joe was lying and commenced talking to him. That she heard Grindstaff say, “You know I had to kill you because you would have killed me if I hadn’t,” and Joe said, “Now, Frank, you know very well that I wouldn’t hurt you.”

Clyde Anderson, an officer in the Oklahoma City Detective Bureau, investigated the shooting after Young had been removed to the hospital. The glass was broken out of the window in the front door. Most of the glass from the window was on the outside of the cabin. Anderson testified that he returned to the police station and talked to the defendant. That defendant said he would not make a statement about the shooting until he had talked to Edith Roberts. That after the witness talked to Edith Roberts, he had another conversation with the defendant, during which he tried to get defendant to tell him the reason for the shooting, but defendant would not talk. That finally the witness asked defendant this question, “Are you jealous of Joe and Edith?” That when this question was asked, defendant became very angry, jumped to his feet and said, “What the hell do you think, by -, he stayed down there with her the other night.” The defendant said Young stayed at Edith Roberts’ home at 700 S. W. 4th street, one night. That the defendant got mad when they continued to quest tion him and finally said, “Well, he is dead, and I am alive, and I am not going to make any kind of a statement until after I have talked to Edith and have an attorney.” The officer further testified that the gun involved in the homicide could not be discharged without the hammer being first pulled back.

Joe Perkins, another policeman who investigated that case after Young had been taken to the hospital, testified that Grindstaff said that he had done the shooting because he was afraid of the man. That he examined the cabin where the shooting occurred that evening. That a thermos bottle was lying on the floor of the cabin on the north side of the cabin near the bed. That the screen at the windoAV by the bed was torn loose and had a bulge in it.

P. L. Borden, another officer assigned to investigate the case, testified that the morning after the shooting, he talked to the defendant, but defendant said he did not want to make a statement until he had seen an attorney. That defendant asked several times if Joe Young was dead and that the witness told him Joe had died. That defendant told the officer, “that he had left the cabin after he and Joe had been arguing, due to Joe petting Edith Roberts on the back; he had become jealous of Joe’s affections towards her and he had left the cabin and walked to the railroad tracks west of the cabins, about 150 feet. After he got to the railroad tracks he stopped and said he could not go ahead and leave that woman over there in the cabin with Joe, as he loved her too much, and he decided he would go back to the cabin, to which he did return.” The witness further testified that defendant said he was sitting near the door when the deceased struck at him with an object in his hand and broke the door glass out of the front door. After deceased had struck at him with this object, breaking tbe glass, the defendant reached behind the door and got the shotgun. That defendant said he was afraid of Joe Young because he had seen Joe beat a man into unconsciousness with his bare fists.

It is first contended that the court erred in submitting the issue of murder to the jury. In presenting this assignment of error, counsel for defendant rely solely upon the testimony of Edith Roberts and the defendant. It is true that the county attorney placed the witness Roberts upon the stand, but it does not follow that the jury was bound to believe everything that she testified concerning the homicide. It should be borne in mind that this woman and defendant had lived together as man and wife for many months before the homicide and that they had continued to see each other often after the death of Joe Young. There were other material facts testified by the policemen, the witness Pierce, and the caretaker, which contradicted some of the testimony of Edith Roberts, and which, when considered by the jury, together with all of the circumstances in the case, would have supported a verdict of guilty of murder.

Pierce, the next-door neighbor, testified that after he heard the shot, he ran to his door and then saw Edith Roberts come out of the door of the cabin where the homicide occurred, and say, “Oh, my God! he shot that boy!” This testimony concerning the conduct of the witness Roberts is contradictory to her statement that she ran out of the cabin before the shot was fired. Under the testimony of Edith Roberts, she ran out of the house, had gotten down off the steps when the shot was fired, and had run past two cabins before she turned around. According to her testimony, when she turned around, she saw defendant standing in front of the cabin and a crowd had gathered. At that time, the deceased had already been moved to cabin No. 3. The physical facts strongly support Pierce’s testimony that Edith Roberts Avas in the cabin and saw the defendant shoot the deceased. The county attorney Avas placed in the position to where he was forced to use the testimony of the witness Roberts, but it does not follow, because he placed this witness upon the stand, that the jury was bound to accept her testimony. They could disregard all or any part of it, and, Avhere her testimony conflicted with that of other witnesses, the jury had a right to consider her association with the defendant as a factor which might have influenced her testimony.

22 O. S. 1941 § 745, provides:

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

Under this statute, unless the proof on the part of the state clearly shows that the crime committed only amounts to manslaughter, the court should submit the issue of murder and allow the jury, under proper instructions, to determine the issue of fact. In this connection, it is well to point out that mere Avords or threats, however opprobrious or violent, constitute in law no adequate provocation for passion such as Avill reduce a homicide from murder to manslaughter. In re Bollin, 3 Okla. Cr. 725, 109 P. 288.

If the state had nothing but the testimony of Edith Roberts, there Avould be considerable merit to the argument presented on behalf of the defendant, but there is other testimony far more damaging than her testimony which, when considered with the physical facts, strongly sustains the charge of murder. At least, it is sufficient to require such issue to be submitted to the jury for their determination.

In addition to what is said above, it has been held that where the defendant was charged with and tried for murder and is convicted of manslaughter, objections urged to instructions given upon the question of murder will not be considered upon appeal, in the absence of a showing that defendant was injured thereby. Byars v. State, 7 Okla. Cr. 650, 126 P. 252; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267; Littleton v. State, 19 Okla. Cr. 461, 200 P. 716, 717. There is no such showing herein made.

Counsel for the defendant relied chiefly for' a reversal of this case on the contention that the trial court erred in failing to give certain requested instructions presented by counsel for defendant. These instructions were in different form, but all were based on the proposition that the deceased was a trespasser upon the premises of defendant and that the defendant had a right to defend himself and his premises against a trespasser who was unlawfully on his premises. Citing Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; Armstrong v. State, 11 Okla. Cr. 159, 143 P. 870.

The statute upon which the decisions relied upon by the defendant are based provides:

“Homicide is also justifiable when committed by any person in either of the following cases:
“1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in ami dwellinq house in which such person is21 O. S. 1941 § 733.

In this case, although there is testimony from both Edith Roberts and the defendant that defendant had told the deceased to go home, yet, such testimony alone would not justify the trial court in submitting the issue of justifiable homicide committed in the defense of a person’s habitation. Assuming for the purpose of disposing of this contention that after the defendant told Joe Young to go home, he was a trespasser, it would not justify the home owner, under such circumstances, in taking his life. The law in this regard is well-stated in Jackson v. State, 49 Okla. Cr. 337, 293 P. 567, 568, as follows:

“A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.” And see Garrison v. State, 19 Okla. Cr. 3, 197 P. 517.

In Dickinson v. State, 3 Okla. Cr. 151, 104 P. 923, 925, this court said:

“A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass. * * * The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse and explicit language:
“ ‘A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.’ ”

In the case of Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046, syllabus 2, this court said:

“A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is attempted.”

The trial court instructed the jury on the law of self-defense. Five instructions were given embodying in them the various theories of self-defense which the law allows to an accused. These instructions sufficiently covered all issues raised by the evidence. The law pertaining to defense against a trespasser becomes applicable where the accused contends that he was defending his domicile against an unlawful trespass. There was no contention in this case by the defendant that he took the life of the deceased because he was making an unlawful invasion of his home. In fact, under the defendant’s own testimony, there was a denial that defendant took the life of the deceased, but the defendant’s testimony was simply that the death of the deceased occurred through accident and misfortune while the defendant was attempting to wrest the gun from the hands of the deceased. The defendant denied discharging the weapon. The defendant testified that he was afraid of the deceased’s ability to give him a beating with his bare fists but, at the time the shooting occurred, he did not contend that he shot the deceased in self-defense, but rather his testimony was in the nature of a denial that he shot the deceased at all, but that the gun was accidentally discharged while the defendant Avas committing the lawful act of attempting to take away from the deceased the gun which the accused said the deceased had grabbed from behind the door. In this connection, the court gave an instruction as follows:

“No. 19. The defendant contends that the deceased had grabbed the shotgun in question, and that he and the deceased were struggling for possession of same when said gun accidentally discharged and struck the deceased ;. that he did not know said gun was loaded, and that he had no intention of pointing or discharging said gun at the deceased, and that he did not point or discharge said gun at the deceased, and that said homicide is, therefore, excusable. In this connection you are instructed that if you find and believe from the evidence that the said Joseph Henry Young met his death by reason of accident and misfortune by the defendant, while he was doing a lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent, or you have a reasonable doubt thereof, then you are instructed that such homicide would be excusable, as heretofore defined in these instructions, and you must find the defendant not guilty.”

In Smith et al. v. State, 22 Okla. Cr. 383, 212 P. 1012, it is stated:

“The trial court is not required to delve in the realms of conjecture or speculation in order to instruct upon some chimerical theory of the law of the case not reasonably supported by the evidence.
“When a defendant, who has the right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”

There are other requested instructions which we have carefully read and considered, together with the instructions given by the court, and our conclusion is that those given, considered as a whole, fully covered, under the evidence, every phase of the case, and included all that was properly contained in those which were refused.

This case was well tried from the defendant’s viewpoint. His counsel skillfully represented him at every step of the case. They have presented an able brief, thoroughly discussing many assignments of error in connection with the instructions given and refused. In some of the instructions, there might possibly be a word or two inserted which, when isolated from the balance of the instruction, could be subject to some criticism, but an appellate court cannot read the entire record, including the instructions which were given, without concluding that the trial was handled in an able manner by the trial judge. He gave the defendant the benefit of every right afforded him by our law. In fact, as we view the record, the trial court would have been justified in submitting to the jury the dying declaration made by the deceased, but, because strong objection was made to the admission of this statement and there was some evidence brought out on the cross-examination of one of the state’s witnesses that the deceased, at the time he made the statement, might have had hope of recovery, the court refused to allow the admission of the dying declaration in evidence before the jury. The court could have had ample precedent for admitting this statement, in view of the fact that it was given just three or four hours before the death of the deceased and, especially in view of the testimony of the county attorney that the deceased piade the statement to him after he advised deceased that his wounds were critical and that he probably would not recover. We do not refer to this in criticism of the court for refusing to admit the dying declaration in evidence, but to demonstrate the utmost fairness with which the trial was conducted, and it is just one illustration to show that the defendant, in every stage of the proceedings, was given the benefit of any doubt that arose. If this dying declaration had been admitted in evidence, the state’s case would have been greatly strengthened.

Human life is a precious thing and one who takes it may not escape just punishment for his act upon some finespun theory of defense which cannot be sustained by the physical facts.

Upon the whole record, we find no errors which would authorize this court to reverse the conviction. The punishment fixed by the jury is tempered by mercy, as the minimum punishment allowed by law is fixed as the term of imprisonment.

The judgment of the trial court is therefore affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    In re LEWIS SOLOMON.
    No. A-10647.
    Jan. 30, 1946.
    (165 P. 2d 843.)
    Lewis Solomon, in pro. per.

      Randell S. Cobb. Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Lewis Solomon, has filed a petition for habeas corpus seeking his release from the State Penitentiary at McAlester, where he is confined by reason of a judgment and sentence of the district court of Tulsa county; serving a term of three years for receiving stolen property.

This case was appealed to this court, and the judgment of the district court of Tulsa county was affirmed. Solomon v. State, 79 Okla. Cr. 93, 151 P. 2d 944. On petition for rehearing, the judgment and sentence was modified from a term of seven years to a term of three years in the State Penitentiary. Solomon v. State, 79 Okla. Cr. 361, 155 P. 2d 272.

The same questions presented in the appeal are now presented in the petition for habeas corpus. These questions cannot be reconsidered in a petition for habeas corpus.

The petition for habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    PERCY McINTIRE v. STATE.
    No. A-10530.
    Feb. 6, 1946.
    (166 P. 2d 111.)

      Phil K. Oldham, of Muskogee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Percy Mclntire, was charged in the county court of Muskogee county with the offense of unlawful possession of intoxicating liquor, to which information he entered a plea of guilty and was sentenced to serve 30 days in the county jail and pay a fine of $50 and costs, and has appealed.

We have examined the transcript .of the record; the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. The defendant appeared in person and with his counsel and entered a plea of guilty. The sentence that was pronounced upon the plea of guilty was the minimum punishment fixed by the statute for such offense. Since no appearance has been made in this court on behalf of the defendant, nor brief filed, it is apparent that the appeal is without merit and that the judgment should be affirmed.

It is, therefore, ordered that the judgment and sentence of the county court of Muskogee county be and the same is hereby affirmed.

BAREFOOT., J., concurs. BOYLE, J., not -participating.


text:
    CLAUDE TAYLOR v. STATE.
    No. A-10505.
    Feb. 6, 1946.
    (166 P. 2d 108.)

      Claude Taylor, in pro. per.
    Randell S. Cobb, Atty. Gen., and Dixie Gilmer, Co. Atty. of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Claude Taylor, was charged in the district court of Tulsa county with the crime of burglary in the second degree, after having been convicted of the crime of selling a forged instrument and serving a term of two years in the State Penitentiary of this state therefor. He was tried, convicted and sentenced to serve a term of ten years in the penitentiary, and has appealed.

Defendant was represented in the trial court by Harry Dyer, public defender of Tulsa county, who was appointed by the court. This appeal was filed by the defendant himself, who is now serving his term in the State Penitentiary at McAlester. No brief has been filed, either by the defendant or by the state. The cause was submitted to this court on June 13, 1945.

We have carefully considered the assignments of error, and have read the case-made.

It is first urged that the case should have been continued for the reason that the defendant entered a plea of guilty while "the panel of jurors was in the courtroom. The defendant at the time was of the opinion that he was pleading guilty to a misdemeanor. This plea was set aside, and a jury was then impaneled. The court, before the jury was sworn, propounded the following question to all of the jurors:

“The Court: Do any of you at this time have any impression in your minds because of the fact that it has been stated here this defendant did appear before this court and before this Bar in some matter — Are there any of you jurors in the box — Do any of you have any impression in your minds as a result of that statement made about the appearance of the defendant in this court at some time during these proceedings in this matter that would have any effect whatsoever in any way in the trial of this case? All jurors answer ‘no.’ ”

This was a matter within the discretion of the trial court, and we do not find there was an abuse of this discretion. The record reveals that defendant made four challenges for cause at the time the jury was selected.

It is next urged that the court erred in permitting a certain letter to be introduced in evidence. This was a letter written by defendant to the prosecuting witness after he had been arrested and prior to his trial. The record discloses that defendant on cross-examination was questioned about the letter, and admitted writing the same, and admitted certain statements therein made. The letter does not appear in the record, and the record does not show that the letter was introduced in evidence. Under the circumstances stated, it would have been proper for the state to have introduced the letter in evidence as a part of the cross-examination of the defendant. There was no error in this matter.

It is next contended that the verdict is contrary to the evidence, and is excessive.

This contention is based upon the fact that the defendant was convicted upon circumstantial evidence. It is true that the main fact of the burglary was based upon circumstantial evidence, and the court instructed the jury to this effect, and gave a full instruction upon this question.

The facts were that the prosecuting witness, Delia Jones, who was the step-grandmother of the defendant, was working for the family of Dr. Ashley, who resided at 1528 Geary Place, in Tulsa. She occupied servants’ quarters in the rear of this address. On the morning of September 13, 1943, she closed her windows and locked the door but left the key in the door, left her quarters and ivas at Avork as a servant in the Ashley home. She left her pocketbook containing |20.32 — three five dollar bills and five one dollar bills, in her quarters. The defendant, on the morning of the day in question, accosted a taxi driver, Frenchie Hughes, and hired him to take him to the above address, telling him that he did not have any money, but wanted him to take him to his grandmother’s address, and he Avould get the money, and pay him a dollar. When they arrived at the address, the defendant left the taxi and walked doAvn the drive-Avay toward the quarters in the rear. He soon returned to the taxi, and had paper money, and gave the taxi driver a one dollar bill.

The defendant was seen leaving the taxi and going to the quarters by Mr. Douglas Frazier, who lived next door. Mr. Frazier Avas working in his garage at the time. Defendant Avas there about five or ten minutes, then returned to and entered the taxi, and it drove away.

Delia Jones, the prosecuting witness, saw the defendant leaving her quarters and recognized him as he passed the window of the house where she was working. She immediately Avent to her quarters, and the money was missing from her pocketbook. She ran toward the front and made inquiry of some one and saw the taxi leaving but could not stop it.

Defendant Avas arrested by the Tulsa officers about 6 o’clock that evening. He testified in his own' behalf, and admitted going to the premises, but said that the door was open to the quarters. That he knocked and when no one appeared, he left and did not enter, or take the money. On cross-examination he admitted writing a letter to the prosecuting witness while in jail, asking her to say that she had found her money where she had misplaced it, and that he would pay her back. His explanation of this was that he thought it would be better for him to pay her the money than to go to the penitentiary.

It was also proven by the state that the defendant had been convicted of forgery in the second degree in 1941, in Tulsa county, and had served a term of two years in the State Penitentiary at McAlester. Defendant was 34 years of age.

The verdict of the jury was for ten years in the State Penitentiary. This is the minimum sentence for a conviction for burglary in the second degree, where one has previously been convicted of a felony. The court properly instructed the jury that the charge as a second offender was only to be considered with reference to the increasing of the punishment given, and was not to be considered by the jury in passing upon the guilt or innocence of the defendant of the crime with which he was on trial.

From the above statement, it is clear that the evidence of the state was sufficient to warrant the jury in arriving at a verdict of guilty. There was positive evidence, and while the actual entry and taking of the money was based upon circumstantial evidence, it was sufficient to warrant the jury in reaching the conclusion that the defendant entered the quarters and took the money of the prosecuting witness. Under the law, one may be convicted upon circumstantial evidence, the same as upon positive evidence. In cases of this character, it is often hard for the state to prove the actual breaking and the taking of the property, and it must depend on circumstantial evidence to furnish this proof.

There is nothing in the record to justify a reduction of the sentence. It was the minimum provided by the statute.

For the reasons above stated, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    VIRDIE MINNIX v. STATE.
    No. A-10523.
    Feb. 6, 1946.
    (165 P. 2d 988.)
    O. A. Brewer, of Hugo, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Virdie Minnix, was charged in the district court of Choctaw county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve four years in the State Penitentiary, and has appealed.

The defendant and the deceased were negroes. The defendant and her husband were tenants of the deceased and lived in a house across the road and about 175 yards from the house occupied by deceased and his family. The parties used the same well of water which was located in the yard near defendant’s house. The defendant shot and killed the deceased while he was at the well drawing water. There were two eyewitnesses to the killing. According to their testimony, the deceased committed no act and said no words which would have justified the defendant in taking his life.

On behalf of the defendant, it was contended that the deceased had, on various occasions, come to her home in the absence of defendant’s husband and had solicited her to have a date with him.

According to the defendant’s testimony, when the deceased came to the well after water, she thought he was coming to “violate her” and she felt like the two men who were sitting in her yard would not protect her. That when she took the gun and went to the well, it was for the purpose of ordering him to leave. That the “dread and fear of his violating her” and the things that he had said and done to her had made her so scared and nervous that in trying to defend herself the gun went off and that she did not really know that she was pointing the gun at deceased.

The sheriff testified in rebuttal that defendant told him shortly after her arrest that she and the deceased had been going together a long time but that she had not been intimate with him since her operation.

No brief has been filed on behalf of the defendant and, under her own testimony, the reason for this failure to file a brief is apparent. The very best that can be said for defendant’s testimony is that it presented a weak case of self-defense and that she was fortunate not to receive more than the minimum punishment for manslaughter in the first degree. • There are no substantial errors in the record and the judgment of the district court of Choctaw county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.