text:
    JOHN HALEY v. STATE.
    No. A-3478.
    Opinion Filed July 16, 1921.
    Rehearing Denied Nov. 19, 1921.
    (200 Pac. 1009.)
    (Syllabus.)
    1. Preliminary Examination — Right of State to Proceed Despite Waiver by Defendant. A waiver of preliminary examination by defendant does not prevent state from proceeding with examination and taking evidence in order to determine exact crime for which defendant should be held, as section 5680, Rev. Laws 1910, contemplates, not only that defendant may be held for felony charged .in preliminary complaint, but' for a different felony, if upon a hearing the facts so show.
    2. Bail — Magistrate not Required to Release on Bail until Hearing on Felony. Where one charged with a felony is before an examining and committing magistrate for a hearing, the magistrate is not required to release the accused on bail until a hearing be had, if demanded by the state, and it has been determined in such hearing the exact offense, according to the facts, which accused has committed, if any; whether the same is bailable, and, if so, the amount of bail that should be fixed.
    3. Evidence — Evidence Given at Preliminary Examination.' Evidence taken at a preliminary examination may be read at the trial, where such witness has since died, and also of a witness who is out of the state at the time of trial, if proper diligence was used to obtain his attendance at the trial.
    4. Same. — An objection that the transcript of the evidence taken at the preliminary was filed in the district court by the stenographer and not by the examining magistrate- is not sufficient ground for rejecting the evidence of witnesses at the preliminary, where the other proper predicates for the admission of such evidence are established, including proof that the evidence admitted is the evidence of the witness as given at the preliminary.
    5. Same. An objection to evidence of witnesses at preliminary on the ground that stenographer taking same was not qualified is properly overruled, as directed against the weight of the evidence and not its admissibility; the weight to be given such evidence being exclusively for the jury.

      6. Larceny — Conversion of' Property by ■ Employe Having Care Thereof. Where a servant and employe of the owner of property merely has the care and oversight of same and not its possession, and it is clear he converted the same to his own use without the consent of the owner, the crime is larceny.
    7. Same — Evidence Sustaining Conviction^ Evidence examined, and held sufficient to sustain conviction.
    8. Same — Proof by General Reputation that Owner was a Corporation. Unc'ontroverted proof by general reputation that the owner of the property stolen, the Carter Oil Company, was a corporation, was sufficient on this point in a criminal prosecution.
    Appeal from District Court, Creek County; Lucien B. Wright, Judge.
    John Haley was convicted of grand larceny, and, he appeals.
    Affirmed.
    E. G. McAdams, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

John Haley was convicted in the district court of Creek county of the crime of grand larceny on a trial upon an information jointly charging him with two others of stealing in said county, on or about the 8th day of September, 1917, approximately 500 barrels of heavy oil of the property of the Carter Oil Company, of the value of about $360. ’

Severance was asked and granted this defendant, and trial was had to a jury, Which assessed his punishment at imprisonment in the state penitentiary for one year and one day. Judgment was rendered on the 28th of June, 1918, and an appeal taken therefrom to this court.

It is first contended that the trial court erred in permitting the state to read the evidence of two witnesses taken at an alleged preliminary examination of this offense.

The facts bearing upon the question here involved are as follows: Defendant, Haley, was arrested, charged by complaint filed before a committing magistrate with the identical crime for which he was in this trial convicted. Upon his arrest he appeared before the magistrate in person and by counsel, pleaded not guilty, and at that time did not waive the taking, of a preliminary. examination. The magistrate thereupon subpoenaed the witnesses desired by the state, and set the hearing at a future day. On the day the cause was set for preliminary hearing, defendant having previously been admitted to bail, appeared in person and by counsel, and announced that he desired to waive preliminary examination. Thereupon the state announced that it desired to take evidence and have a hearing. The magistrate ruled that it was the right of the state under the law to have a hearing, although defendant waived the examination. To this action defendant excepted, and counsel who were representing defendant withdrew from his defense. Whereupon the magistrate announced to defendant that he had the right to have counsel represent him at a hearing, and asked him if he desired the court to appoint counsel for him, whereupon defendant announced that he did not desire counsel at the hearing, that he had waived a preliminary hearing, • and desired to be immediately admitted to bail, with permission to absent himself from such hearing. This request was denied to defendant. Whereupon the court had witnesses for the state sworn, and their testimony taken in shorthand, defendant being offered an opportunity to cross-examine such witnesses, but refused to do so.

Upon the trial the state offered against defendant the testimony of one Deeper and one Updike, taken at this alleged preliminary hearing, and defendant objected thereto upon several grounds: (1) That the state had no authority to take a preliminary examination after waiver of same by defendant. (2) That the state had no authority to use testimony taken Under such circumstances: (a) Because there had been a waiver of preliminary examination by defendant; (b) because the transcript of the evidence was filed in the district court by the stenographer, and not by the examining magistrate; (e) because the testimony so taken shows to be garbled and the stenographer taking the same incompetent.

The first ground of objection has been decided adversely to the contention of defendant in the following cases: Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451; Quinton v. State, 10 Okla. Cr. 520, 139 Pac. 705.

While the Constitution and statutes give the defendant the right to waive a preliminary examination as to any offense charged against him, such waiver ;does not have the effect of preventing the state from taking evidence and proceeding with an examination in order to determine the exact crime for which defendant should be placed upon trial. If the rule were otherwise , defendant, by a waiver of a preliminary examination, could prevent the state from investigating the nature of the crime of which defendant is probably guilty, if any, and properly charge him in the trial court with that crime of which he is probably guilty. Section 5680, Revised Laws 1910, clearly contemplates, not only that defendant may be bound over for the offense named in the preliminary complaint, but upon a hearing, if the facts so show, he may be bound over for any felony that there is sufficient cause to believe him guilty of.

It follows, therefore, that the right of the state to take evidence in a preliminary hearing is not precluded by any action of defendant in waiving a hearing as to the partied1 ir offense charged in the preliminary complaint, and, where a defendant is properly brought before an examining and committing magistrate, he may be required to attend such a' hearing, and is not required to be released upon bail until the examining magistrate has determined in such a hearing the exact offense according to the facts which the defendant has committed, if any, whether the same is bailable, and, if so, the amount of bail that should be fixed.

Therefore, we deem it immaterial whether defendant waived a preliminary examination as to the particular offense charged in the preliminary complaint. The pertinent inquiry here is whether or not a hearing was had as authorized by law, was defendant present? were witnesses sworn? did they give evidence? and was defendant given an opportunity to cross-examine them? We think that it is clear from this record that all constitutional rights of defendant as to the confrontation of witnesses were afforded to him. Reaching this conclusion, it is our opinion that evidence so taken, when proper predicate is laid therefor, may be used against such defendant upon the subsequent trial of the cause.

In this ease the admitted fact was that the witness Leeper was out of the state at the time of the trial, and that his attendance could not be procured by the process of the trial court. It is also admitted that the witness Updike had died since the preliminary examination. There is also a sufficient showing of diligence used by the state prior to the trial to obtain the attendance of the witness Leeper.

The objections that the transcript of the evidence was filed in the district court by the stenographer and not by the examining magistrate, and also that the testimony of these witnesses is garbled, the stenographer being incompetent, are not objections going to the admissibility of the evidence. The stenographer was used as a witness, and testified that she took tke evidence at the preliminary examination, that it was correctly taken and properly transcribed, and that the evidence read on the trial was a correct transscript of the testimony of the witnesses as given at the preliminary hearing. We think this was a sufficient showing to admit the testimony. The question of the qualification of the stenographer is directed to the weight of the evidence, not to its admissibility. Finding no substantial merit in this assignment of error, we decline to disturb the judgment for any of the reasons given thereunder.

■ Secondly, it is urged that the evidence is insufficient, in that if it shows the commission of any offense, it is that of embezzlement instead of larceny. We think this assignment is without merit. There is no evidence in the record which tends to d'sclose that defendant had possession of the property alleged to have been stolen. While he was a servant and employe of the owner of the property, he merely had the eare and oversight of same, and not its possession. He had only the custody of the property for the owner, and it is clear he converted the same to his own use without the consent of the owner. Under such circumstances the crime is larceny, and not embezzlement. Wharton, Criminal Law (10th Ed.) § 956.

It is also contended that there is no evidence to establish the fact that the Carter Oil Company lost any of its oil, or that any oil belonging to said company was stolen by this defendant and pumped out of its tanks or dykes into the Leeper pipe line. The undisputed evidence is that defendant arranged with Mr.' Leeper, the president of the Riverside Refining Company, to sell him some oil; that Mr. Leeper, together ■with another witness, went out to the tank farm of the Carter Oil Company, and was there shown some low-grade oil that the defendant stated had been given to him, and arrangements were then made between defendant and Leeper to convey the oil by pipe from the tank farm of the Carter Oil Company to the pipe line of the Riverside Refining Company, which was located about 300 yards away; that thereafter connection was made between the place where this oil was stored and said pipe line, and defendant and others jointly charged with him were seen pumping the oil from, such property into said pipe line; that thereafter the Riverside Refining Company paid a codefendant, who, together with defendant, made the original negotiations for the sale of this oil, the sum of $350.06 for 500 barrels of oil delivered as aforesaid1. All of these facts and circumstances were undenied by the defendant, although proof was positive to the effect that he had no authority from the Carter Oil Company to dispose of said oil. We deem the evidence sufficient to authorize the jury to conclude that defendant was guilty as charged.

It is also contended that the trial court erred in permitting the state to prove by general reputation that the Carter Oil Company was a corporation, as alleged in the information.' We think this evidence was sufficient on this point in a criminal prosecution. 7 Ruling Case Law, p. 103; State v. Thompson, 23 Kan. 338, 33 Am. Rep. 165.

For reasons stated, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    DOCK THOMAS v. STATE.
    No. A-3721.
    Opinion Filed Aug. 3, 1921.
    Rehearing Denied Nov. 19, 1921.
    (201 Pac. 662.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Trial Court — Indorsement of Additional Witnesses. In felony cases, less than capital, the names of additional witnesses may be indorsed oh an information at any time, within the discretion of the court, and this discretion will not be reviewed upon appeal, unless the record shows it was abused.

      2. Appeal and Error — Evidence Sustaining Conviction. Where there is substantial evidence to support the verdict of conviction, and the record discloses no indication that the .conclusions reached were the result of passion or prejudice, such verdict will not be disturbed on appeal.
    3. Larceny — Evidence Sustaining Conviction. Evidence held sufficient to'sustain a conviction for the larceny of domestic animals.
    Appeal from District Court, MeCurtain County.
    Dock Thomas was convicted of cattle theft, and appeals.
    Affirmed.
    Jeff D. McLendon, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of MeCurtain county, rendered upon a verdict finding defendant, Dock Thomas, guilty as charged in information, and fixing his punishment at imprisonment in the penitentiary for a term of five years. The information jointly charged Dock Thomas and Joe Melson with the larceny of two certain bull yearlings, the personal property of one Tobe Phillips. The record shows that the defendant Melson died before the case was called for trial.

The errors assigned are that the verdict was contrary to the law and the evidence, and that the court erred in permitting the county attorney to indorse the name of an additional witnesses on the information when the ease was called for trial. The defendant is not represented by counsel in this court; however, we have carefully read and examined the entire record. The state relied for this conviction upon the testimony of the alleged owner and four or five other witnesses, showing that on che date alleged Tobe Phillips, living four or five miles north of Heworth, in MeCurtain county, was the owner of two bull yearlings, one a deep red and the other a red roan, both without marks or brands; that two or three weeks after he missed them they were found in. the possession of the defendant, Dock Thomas, in a pasture on what is known as the cut-off on Red river; that at that time they had been altered, and each had a metal tag on the ear; that' the defendant, Dock Thomas, lived about a mile and a half from Tobe Phillips, and well knew that these yearlings were raised and owned by Tobe Phillips.

Other witnesses for the state testified to the identity of the yearlings found in the possession of the defendant as being the property of Tobe Phillips. As a witness in his own behalf Dock Thomas testified that he bought the red yearling from 'the late Joe Melson his codefendant, and that he raised the other yearling, claimed by Tobe Phillips; that at the time he was associated with Dr. McBrayer in buying cattle, and they had about 100 head in a pasture on the Red river cut-off.

The rule is well settled that in felony eases, less than capital, the names of additional witnesses may be indorsed on an information at any time within the discretion of the court, and this discretion will not be reviewed upon appeal, unless the record shows that it was abused. Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Hawkins v. State, 7 Okla. Cr. 385, 123 Pac. 1024.

The jury are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and where there is substantial evidence to support the verdict of conviction, and the record discloses.no indication that the conclusions reached were the result of passion or prejudice, such verdict will not be disturbed on appeal.

Upon the record before us, the case was one for the consideration of the jury. The trial was in all respects fair, and we are unable to find anything in the record to warrant us in interfering with the conviction.

The judgment of the lower court is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: BBSSEY,'J.

text:
    TILLMAN JONES v. STATE.
    No. A-2878.
    Opinion Filed March 5, 1921.
    Rehearing Denied Nov. 19, 1921.
    (201 Pac. 664.)
    (Syllabus.)
    1. Jury — Examining Veniremen — Not Allowable to Ask Jurors How They Would Decide on an Assumed State of Facts. In the examination of a venireman as to his qualifications to sit as a juror, neither party has the right to assume the facts of the case in detail, and assume that the court will instruct the jury in a particular way, and then call upon the prospective juror for a statement as to how he would decide under this supposed state of evidence. This might be calling for a prejudgment of the case, and the sustaining of an objection to such question is not error.
    2. Same — Examination of Jurors — Discretion of Court. The manner and extent of examinations- of jurors, touching their qualifications, cannot be prescribed by any definite, unyielding rule, but rests to a large extent in the sound discretion of the trial judge. In the examination, such latitude should be given the parties as will enable them to procure a jury free from outside influence, bias, or personal interest. Held, that the limiting of the examination of Juror Brown was not an abuse of the court’s discretion.
    3. Appeal and Error — Harmless Error — Disparaging Remarks by Court Concerning Attorneys. The trial court should refrain from making disparaging personal remarks concerning any of the attorneys engaged in the trial. The attorneys, on the other hand, should refrain from unnecessarily irritating the court. A trial in a court of justice should not be permitted to degenerate into a contest of wits or skill between the court and attorneys, or between the attorneys themselves. Held, in this case that the attorneys for defendant were in some measure responsible for the disparaging remarks of the court, and that the remarks so made, under all the circumstances, were not prejudicial.

      4. Witnesses — Good ChaHacter of Accused — Impeachment—Other-Offenses. Unless the defendant himself puts his good character in issue, it is not admissible, on cross-examination of' the defendant, to interrogate him as to the commission of other particular crimes or offenses not .connected with the crime for which he is being tried. If the good character of the defendant is made an issue by the defendant, it may be impeached only by showing that his general reputation was had, and not by evidence of particular acts.
    6.Appeal and Erroi — Harmless Error — Interrogation as to Other Offenses. As to whether the error in permitting a defendant to be interrogated about several other specific acts of wrongdoing, not within the issues, is prejudicial depends upon whether, from an examination of the entire record, it appears that the defendant was injured by such testimony, or whether the jury considered the same in arriving at their verdict. Held, in this instance, that the propounding of the auestions complained of was not prejudicial error.
    6. Same — Test as to Harmless Error. As to the tests in determining whether incompetent testimony is harmless, see the text of this opinion.
    7. Homicide-Harmless Error — Instruction. The giving of an instruction to the jury that, if they should find the defendant guilty of murder, they should fix his punishment at life imprisonment in the state penitentiary, is error. By statute it is provided that the punishment for murder shall be death or imprisonment for life, at the discretion of the jury; but, since this error was prejudicial only to the state, the defendant cannot be heard to complain.
    8. Homicide — Instructions as to Self-Defense. Instructions as to self-defense and apparent danger examined, and held sufficiently, if not correctly, stated.
    9. Appeal and Error — Invited Error — Remarks by Court. Where the defendant’s counsel, in the presence of the jury, unnecessarily provokes the court to making disparaging remarks of and towards the attorney for the defendant, culminating in a fine or threatened fine for contempt of court, the defendant, will not be heard to complain of such action of the court, unless it appears that it probably operated to the injury of the defendant.
    Appeal from District Court, Texas County; W. C. Crow, Judge. .
    Tillman Jones was convicted of murder and he appeals.
    Affirmed.

      J. S. Harris, W. H. Sullivan, and John L. Gleason, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   BBSSEY,'J.

The plaintiff in error, Tillman Jones, hereinafter referred to as the defendant, was on the 1st day of May, 1915, informed against in the district court of Texas county, Okla.; for the murder of Paul' Herzog on- the 29th day of November, 1914. Upon trial in said court, defendant was on the 27th day of May, 1916, convicted of murder, and his punishment fixed at life imprisonment in the state penitentiary.

The evidence on the pari of the state discloses: That prior to the day of the homicide there had been no ill feeling between the defendant and the deceased; that the deceased was a school teacher, a young man of exemplary habits, who was not in the habit of drinking intoxicating liquor or using profane language. That immediately prior to the date of the shooting the deceased lived a distance of about two miles from the father of the defendant, with whom the defendant had for some time been making his home. That on this day the deceased had been to Tyrone, in company with others, and that on their return, about sundown, he left their conveyance some distance from his home and was proceeding on foot, carrying a sack of flour and a package of salt, when he overtook the defendant, who, after some remarks, demanded of the deceased that he hitch up his team and take defendant and his trunk to Tyrone. That the defendant was in an intoxicated condition, and stated that he had' had a dispute with his father, who did not want him to go to Tyrone. That the defendant had a pistol, and threatened to shoot the deceased if he did not go. That the deceased then carried the flour and salt to his house, and there met his wife and called her attention to defendant’s intoxicated condition. That he then went to the' stable, hitched up a team of mules to a wagon, and, after again going to the house and giving his pocketbook to his wife drove away with the defendant in the direction of the home of the latter. - That on their arrival there the defendant’s father objected to his taking the trunk, but later the trunk was placed on the wagon, and deceased then stated that he ‘ did not want to take the trunk if the father objected. After some discussion the deceased got up on the wagon, preparatory to driving off and invited the defendant to ■ get on also; that the defendant refused, stating that he would walk down to the gate and close it after they drove through. The deceased got off of the wagon, urging the defendant to get on, and as he approached the defendant, the defendant shot him with his pistol, the ball entering the abdomen, severing the intestines in a number of places, resulting in death some hours later. The defendant, immediately after the shooting, fled,' and some months later was apprehended and arrested in Tennessee. The pistol which he had used was found some distance from the scene -of the tragedy. The deceased had no gun or other weapon, and had made no threats towards the defendant. That the deceased was carried into the Jones house, physicians were called, and his relatives notified. That the physicians, after their arrival, decided that an operation was necessary, and as soon as preparations could be made they placed deceased under the influence of an anesthetic, opened up the abdomen, and sewed up the punctures in the intestines. That before the operation the father and sister of the deceased- arrived; that the deceased knew that he could not recover, and before the operation made a statement to his father, in the presence and hearing of his sister, relating how the difficulty took place. That it required approximately an hour and a half to complete the operation, and soon after the deceased came from under the influence of the anesthetic, at about 1 o’clock of the morning following, a hypodermic injection of H. M. C. was administered. That some time following this the deceased made a statement as to how the difficulty occurred to his mother-in-law; and later still, at about 5 o’clock of that morning, he made another statement, a portion of which was reduced to writing. These dying statements all indicated that the shooting was done without provocation.

The defendant admitted the killing, and claimed justification. He admitted that he had seen the deceased a few times, and knew him slightly. That he went over to the home of the deceased at about sundown on the evening of the 29th of November, 1914, to get him to haul his trunk to Tyrone, and1 that the deceased overtook him a short distance from his house. That he told the deceased that he wanted him to take him and his trunk to Tyrone, and that he gave him $1 for that purpose. That he had a pint of whisky with him, and that he gave deceased a drink just after they met; that before leaving the defendant had taken a drink or two. That they hitched up the team of mules and drove over towards the defendant’s home. That on the way over the deceased took two more drinks, and that somewhere along the road the deceased said to the defendant, “Jones, I understand that yon said that I stole some of your fruit down there,” and that the defendant replied to the effect that it looked like either he or some of the Hoeckendorf boys did. That the deceased then cursed him, and started towards him, whereupon defendant got off the wagon and ran back up the road a distance of about 100 yards, pursued by the deceased. That the deceased failed to overtake the defendant, and, after using more profane language, returned to the wagon, and that the defendant followed and they both got on the wagon and pursued théir journey towards the Jones home. That' after arriving at his home they both went into the house, and that the deceased continued cursing and using profane and abusive language in the presence of defendant’s father and mother. That defendant’s gun and scabbard were in the cupboard. That he got them, and buckled them around him, after which deceased and he together loaded the trunk on the wagon. The deceased got on the wagon and picked up the lines and invited the defendar t to get on. Defendant refused and said he would walk down to the gate and shut it. After some talk the deceased said he didn’t believe that he would take the defendant to 1own; that the defendant insisted that he do so, and that the deceased then cursed the defendant again and said, “You accused me of stealing, and I am not going to stand for it,” and got off the wagon and started towards the defendant. That defendant retreated, and told the deceased to stop, and that the deceased then reached in his bosom and threatened the defendant with what seemed to be something bright, in his hand. That the deceased kept ■ advancing, and that the defendant then shot him. The defendant then related the details of his flight to Tennessee.

The defendant admitted that he had drunk whisky nearly all of his life; that he had been drinking on that day; that he had whisky at home, ancT filled up his pint bottle before he started to the home of the deceased; and that he had taken a drink or two before starting.

The only eyewitness to the shooting was Herman Hitchcock, a ■ brother-in-law of the defendant. He testified that the shooting occurred in front of the Jones home, about 30 minutes after the arrival there of the two men. That the night was clear, as well as he could remember, and that the moon was shining. The witness corroborated the defendant as to the abusive and profane language alleged to have been used by the deceased, and stated that just before the fatal shot was fired the deceased was advancing towards the defendant, in a threatening manner, reaching in his inside overcoat pocket, and that he had something bright in his hand.

A number of witnesses testified as to what took place after the shooting. Expert and other witnesses testified as to the mental condition of the deceased after the shooting and before his death, as affecting the credibility of his dying statement. The father and mother of the defendant did not testify. Other than above stated, there was no testimony that the deceased had a weapon, and so far as this record shows, none was found on his person or elsewhere.

The record in this case is ponderous, containing 826 pages. The defendant urges 48 assignments of error: From an analysis of defendant’s brief, we find that these errors may be classified and grouped as follows:

(1). Error of the court in refusing to permit the defendant to make a sufficient examination of the jurors touching their qualifications.

(2). Error of the court in permitting the county attorney and special counsel for the state to make prejudicial remarks about the defendant and his counsel, and permitting prejudicial questions to be propounded, indicating that the defendant was a dangerous man.

(3). Error of the court in giving erroneous instruction as to the death penalty.

(4). Errors of the court in the admission of incompetent and prejudicial testimony concerning the alleged dying declarations of the deceased.

(5). Errors of the court in giving certain erroneous instructions, and the refusal of the court to give the instructions offered by the defendant.

(6). Error of tbe court in fining one of the attorneys for the defendant for contempt of court, in the hearing and presence of the jury.

First. This was not such a trial as would ordinarily excite wide publicity or make it difficult to procure an impartial jury. There were 33 persons examined as to their qualifications as jurors, covering 222 pages of this record. The friction and hostile feeling between the court and the attorneys for the defendant, which appears at various times during the progress of the trial, as shown by this record, first manifested itself and became acute because, in this examination of prospective jurors, the attorneys for the defendant would take the information and the list of witnesses which it contained and ask each man examined concerning his relationship with each of the witnesses, and propound assumed instructions which the court would give, asking the jurors whether, if so instructed, they would be governed by such instructions. Several times the court suggested that they should not at that time assume what his instructions would! be. Finally the court urged that such prolonged examination cease, culminating in the conflict complained of between the court and the attorneys for the defendant, relating to the examination of Juror Brown, who had before that time been examined at great length, and, as probably appeared' to the court, to a sufficient extent. The court then announced that he could and would take the examination out of the hands of the attorneys for the defendant, and refused to allow them to ask this juror further questions, as follows:

“Q. You understand that that (reasonable doubt and presumption of innocence) is a valuable and legal right which the law extends to a defendant, and that the jury or juror has no right to withhold from him, do you?
"By tbe Court: I think you gentlemen go into the law and argument, and I am going to limit this time on the examination — the law doesn’t give you any right to do this, and unless you abbreviate it, I am going to limit the time. You go into the law and arguments, and have no business of doing so in this examination. It is rather in the nature of grandstanding, and you get out here and take up too much time; if you gentlemen want to do any advertising, anything of that kind, you can do so in the newspapers.
"By Mr. Gleason: We except to the ruling of the court and the remarks of the court.
"By the Court: I really have the right to take it out of your hands, and that is what I will do if you don’t take up less time. I will just examine these jurors myself. I can examine the whole of them in 30 minutes. Let’s abbreviate this; if you want to examine, let’s get through with it.
"By Mr. Gleason: Well, if the court please, I confess my inability to examine in accordance with anyone but my own ideas. I am willing—
"By the Court (interrupting): I think you have asked this fellow enough questions, both sides, for the examination of him have asked him about everything that could possibly be connected with the case in any way.
"Q. (addressing Mr. Brown). You would follow the instructions in connection with this case, would you, Mr. Brown? A. Yes, sir.
"Q. And base your opinion solely on the láw and evidence, as your verdict? A. Yes, sir.
"Q. You would come to no conclusion until the case was finally submitted to you? A. No, sir.
"Q. You have no preconceived opinion of this case that will interfere with your verdict? A. No, sir.
"By the Court: I don’t see that there is anything else that amounts to anything in connection with this examination here.
“By Mr. Gleason: The defendant excepts to the remarks of the court, criticizing counsel for defendant and further excepts to the remarks of the court — to the action of the court in taking from the defendant the right to interrogate — (Addressing the court:) We have not completed our examination of the witness, if the court please.
"By the Court: Yes; you have and you ain’t going to examine him any more.
"By Mr. Gleason: We except to this, and ask the right to further examine. (Addressing the court:) Does the court refuse our right?
"By the Court: Yes, sir.
"By Mr. Gleason: Note our exception.”

It has often been held that the manner and length of such examinations rest in the sound discretion of the trial judge. The length, latitude, and manner of such examinations will necessarily vary in different cases and it would be impossible for this court to prescribe a definite and unyielding rule to be followed in future cases. 24 Cyc. 346; 16 R. C. L. 281, § 97.

The record discloses that hypothetical questions had been propounded to this juror, assuming questions of law and of fact, in which the juror was asked what his decision would be. It is generally held that a party examining a venireman has ao right to assume the facts of the case on trial, and to ascertain the juror’s opinion on them in advance; and that a hypothetical question put to a venireman, calling for his decision on a question of law and for a statement by him as to the party in whose favor he would decide it in a supposed state of the evidence, calls for a prejudgment of the case, and that the sustaining of an objection to such a question is not error. State v. Huffman, 86 Ohio St. 229, 99 N. E. 295, Ann. Cas. 1913D, 677, and cases cited in notes and annotations.

We think that the examination of this juror, as a whole, showed that he was qualified, and an examination of the 222 pages of this record relating to the qualifications of the jurors shows that the jury, as finally obtained, possessed the requisite qualifications, and was fair to both sides, and that no objectionable juror, from the. standpoint of the defendant, was retained.

We by no means approve of the manner and attitude- of the court in limiting the examination of this juror, but we hold that, under the circumstances in this case, there was no such abuse of the court’s discretion in so limiting this examination as would amount to prejudicial error. Inde'ed, in view of all that had transpired previously, the hostile attitude of the court and the attorneys for the defendant may have had, and probably did have, a tendency to operate to the advantage of the defendant. The disparaging remarks of the court- at this time, in connection with those appearing later in the record, will be treated further in another paragraph of this opinion.

Second. After the unfriendly attitude between the trial judge and counsel for the defendant was manifested in the examination of the jurors, and immediately after the jury was selected and qualified, the county attorney proceeded to make his opening statement to the jury. From this part of the record we get the impression that defendant’s attorneys, instead of making an effort to pour oil on the troubled waters, repeatedly interrupted the county attorney’s opening statement to the jury by making unnecessary and frivolous objections to portions thereof, to such an extent that he was unable to make to the jury a connected, orderly statement of the state’s theory of the case. Frequently the county attorney, same time. The opening statement of the county attorney was short, but, so near as we can tell from the dialogue that the court, and counsel for defendant were all talking at the took place during these interruptions, there were 14 objections made and argued to portions of this statement, several of which were without merit, as will be seen from the excerpts following:

“The evidence will further show that, just immediately after the shot, Tillman Jones was permitted, and we believe the evidence will show that he was aided, to escape. (Objection; overruled; exception.)”
“Gentlemen of the jury, the evidence will show that, after the officers were notified, that they went to the Jones home and that an effort was made to conceal the identity of the murderer in this cáse'. (Objection; overruled, exception.)”
The county attorney then modified his statement by changing the word “murderer” to the expression, “the man ■who did the shooting in this case.”
“The evidence will show that this defendant became a fugitive from justice, and that the sheriff and other officers of this- county made a search for him in many different states, and .the evidence will show that the Governor of this' state put a price upon the head of this defendant. (To this an objection was sustained, as to the Governor’s offer of a reward, and the jury admonished not to consider it.)”
“The evidence will further show that the defendant on trial here is a man who carried a gun, and especially so at public occasions. (Objection; overruled; exception.)”
“The evidence will show that Paul Herzog (the deceased) knew that this defendant, Tillman Jones, carried a gun. (Objection; overruled; exception.)”
“The evidence will show that prior to the occurrences of this day the defendant had threatened the life of Paul Herzog.
“By the Court: The statement will not be taken from the jury at this time.”
“The evidence will further show that Paul Herzog' was a law-abiding citizen. That he was a peaceful man, and a man above the ordinary in his habits of life. That he never drank liquor or used tobacco, and in fact prided himself on his personal habits.
“By the Court: Well, I don't know that the tobacco part cuts any figure. The liquor proposition I will not eliminate for the present.”

At the close of the opening statement, the court instructed the jury as follows:

“The county attorney is no witness in this case. His statement is simply an outline of what he expects to prove in the case, and no proof in any sense of the word, and not to be taken as such against the defendant.”

It is sometimes difficult, and often impossible for the representatives of the state to state in advance definitely what the testimony will be. At this stage of the proceedings the county attorney may not know whether all the witnesses for the state will be present, or whether he will be able to develop the case in strict accordance with his theory. There is always the possibility of newly discovered evidence during the course of the trial, and that the defendant may inject into the case some issue not anticipated. An opening statement is made to enable the jury to understand the issues before them, to more readily see the relation of the testimony introduced as affecting the issues presented. Subject to the control of the trial judge, the county attorney may state the facts which he expects to prove. At this stage it may be impossible for the trial judge to know whether certain purported facts are or will be admissible as evidence for the jury.

If the defendant requests it, or on his own motion, the court may at the close of the opening statement admonish the jury that the statements of the county attorney are not to be considered as evidence in the ease, but that the statement made by him is merely for the purpose of giving them a clear conception of the issues about to be tried. Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; 26 R. C. L. 1031.

In this case, at the close of the opening statement of the county attorney, the jury were admonished by the court that the county attorney was not a witness in the case, and that his statements were not proof, in any sense of the word, and should be taken simply as an outline of what the state expected to prove. ¥e have examined this opening statement in detail, and the various objections to the parts complained of, and, applying the rule above stated, we are of the opinion that these objections are without substantial merit, and that the overruling of them was not a prejudicial error.

In order to throw some further light on the attitude of the court and the attorneys for the defendant towards each other, extracts of the examination of witnesses are given below.

The first witness for the state was Mrs. Herzog, widow of the deceased. After referring to the day of the tragedy, the witness was asked:

“Well what happened that day? (Objection.) What did you notice about your husband’s appearance that was unusual, if anything? (Objection.) State to the jury what you noticed about the condition of Tillman Jones, if anything, when he came up the road with your husband. (Objection.) Did yop notice anything peculiar about his walk? (Objection.)”

After the witness had testified that she went to her husband after he was shot, she was asked these questions:

“Now state what was done on that occasion, and who was present. (Objection.) What was the condition of your husband when you saw him? (Objection. Withdrawn.) State in detail what you noticed. (Objection.) What was his condition? (Objection.) Did you see spot where the bullet penetrated his body? Yes, sir; after the operation. Describe that entrance to his body — where was it? (Objection.) How long did your husband, Paul Herzog, live? (Objection.)”

The next witness examined was Augusta Hoeckendorf. During the course of her examination these hostilities became acute. An extract from her testimony is as follows:

“By the Court: Q. Did he state anything to you with reference to his condition, as to whether— A. (interrupting). Yes, sir; he did.
“Q. Well, you may tell as to that.
“By Mr. Gleason: Objected to as incompetent, irrelevant, and immaterial. Objected to on the further ground that it calls for a conversation out of the presence of the defendant ; and objected to on the further ground that it is hearsay.
“By the Court: It don’t make any difference whether the defendant was present or not,' that kind of declaration.
“By Mr. Gleason: Note our exception, and we except to the remarks of the court.
“By the Court: Q. If he stated anything with reference as to his condition — as to whether or not he realized his condition — yon may state that.
“By Mr. Gleason: The same objection to that question,
“By the Court: Same ruling.
“By Mi*. Gleason: Note our exception.
“By the Court: Go ahead.
“A. Well, I asked him how that came he was laying—
“By Mr. Gleason (interrupting) : Now, if the court please, that is not answering the question.
“By the Court: I am going to let her go ahead anyway.
“By Mr. Gleason: Note our exception.
• “A. Then he told me that Mr. Jones came to his place and got him, and he says,, ‘Mr. Jones had two guns with him, and he was drunk,’ and Mr. Jones wanted him —
“By the Court (interrupting): Mrs. Hoeckendorf, before going any further, I want you to tell me if he said anything with reference to his condition.
“By Mr. -Gleason: If the court please, I would like permission—
“By the Court (interrupting): You are not going to talk while I am, y.oung man—
“By Mr. Gleason (interrupting): Well—
“By the Court (interrupting): I will fine you $10. You are going to stop that shooting off your mouth while I am talking. You -understand that I am trying to run this thing without your assistance, and while I am talking I want you to keep your mouth shut; do you understand? If you don’t understand, you will do it before you try any more cases here in this courthouse,
“By Mr. Gleason: We except to the remarks of the court. New, if the court please, or may I ask permission, or may I not have permission, to ask leave to strike out that portion of the witness’ testimony in which she attempted to answer your question. May I have the permission—
‘.‘By the Court: You may do that at this time.
“By Mr. Gleason: I now move the court' to strike out that portion of the witness’ testimony in which she undertook to detail what Paul Herzog had stated to her as to the defendant going to his place on that day, and having two guns on his person, and being drunk, on the ground that it is not responsive to the question; on the further ground that it is hearsay, no proper foundation having been laid.
“By the Court: Q. Now, Mrs. Hoeckendorf—
“By Mr. Gleason: Will the court rule on that?
' “By the Court: I will after a little. (Continuing:) Q. In this conversation you are talking about, did Mr. Herzog say what his condition was? Did he say anything with reference as to how he was getting along, or whether or not he realized? A. He said to me that he was shot, and that he ivas bleeding.
“Q. Well, did he say ánything else?
“By Mr. Gleason: If the court please:—
“A. (interrupting). And that he—
“By Mr. Gleason (interrupting and continuing): May I enter the same request?
“A. (continuing). That he didn’t know whether he would get through—
“By the Court (interrupting): I will strike this if. there is not—
“A. (interrupting and continuing). He said he was bleeding, and that he thought he wouldn’t get through, and I told him then that he should tell his wife about things, that she would know how she was standing.
“By the Court: Q. He told you then that he was bleeding, and that he thought he wouldn’t get well? A. Yes; and I told him that he should tell his wife, so that she would know the things and how she was standing.”

This synopsis of portions of the record is given to show that there was more or less continued provocation on the part of the defendant’s attorneys to irritate the court and call forth the disparaging- remarks of which the defendant complains, leading up to the imposition of a fine or threatened fine of one-of the defendant’s attorneys for contempt of court. Whether or not the fine was actually imposed and paid does not appear from the record.

The situation here may be likened to incidents that sometime occur in our national sport of baseball, where it sometimes happens that it will be to the advantage of one side or the other to make the umpire mad so as to excite him and disturb his mental poise.

A trial in a court of justice should not be permitted to degenerate into a contest of wits or skill between the court and the attorneys, or between the attorneys themselves. The court should be more than a mere umpire to sit and watch the contest. In the interests of justice, and for the full development of the facts, he has a right to interrogate witnesses, and generally to see that both sides have a fair and impartial hearing. While doing this the court should not do anything to humiliate any attorney in the discharge of his duty. Neither should any attorney in the case do anything to indicate that it is his purpose to irritate the court into the commission of error. McSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72; Miller v. Oklahoma, 149 Fed. 334, 79 C. C. A. 268, 9 Ann. Cas. 389; Thompson on Trials, § 355; Wigmore on Evidence, § 2484; Wharton on Evidence, p. 947.

After this the trial seems to have progressed with less friction. Fewer objections were interposed, and the defendant was given -wide latitude in the cross-examination of witnesses and in the introduction of his own testimony. Throughout the course of this trial the court seems to have decided many doubtful questions in favor of the defendant. The court assumed no hostile attitude towards the defendant or his side of the case, but such hostile feeling as was manifested was directed towards his attorneys, and that the reason for such feeling was personal was probably considered by the jury; so that, under all the circumstances disclosed by this record, we hold that the rights of the defendant were not prejudicially affected by the remarks and conduct of the court.

We next notice the objections to the alleged prejudicial remarks of counsel for the state and the alleged incompetent ■testimony refleeting on the character of the defendant. The defendant went on the witness stand in his own defense, reciting facts tending to show that he took the life of the deceased in his own necessary self-defense. Up to this time-nothing relating to the character or reputation of the defendant had been developed in the evidence, until on cross-examination, over the objections of the defendant, the state was permitted to ask the following questions:

“Did yo uat any time pull a gun and threaten to shoot and pull a gun on him?”
“Is it not true that you were wearing a gun and belt at the Liberal fair?”
“Is it not true that you shot your wife?”
“Isn’t it true that you shot and killed Lum Hickey?”
“Did you at any time pull a gun and threaten to shoot Tom McNorney?”

These questions were all answered by the defendant in the negative, and it was brought out that at this time the defendant’s wife and Lum Hickey were living. No effort was made by the state to prove these charges.

It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of the defendant’s life, makes it impossible for him to prepare to refute the charges, any or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R. C. L. 953; Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015.

Applying this rule of the inadmissibilty of evidence as to offenses not in issue, the propounding to the defendant on cross-examination of the questions above quoted was error. It then becomes the duty of this court to determine whether, under all the circumstances in this case, this error was prejudicial.

This court has many times construed our statute of harmless error (section 6005, R. L. 1910) with reference to the admission of incompetent testimony. In a number of cases this court has held that the admission of testimony tending to show that the defendant was guilty of other specific offenses was prejudicial error. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; Reams v. State, 12 Okla. Cr. 363, 157 Pac. 273; Scott v. State, 13 Okla. Cr. 225, 163 Pac. 553; Byars v. State, 15 Okla. Cr. 308, 176 Pac. 253. On the other hand, in a number of cases this court has held that the propounding of such questions or the admission of such testimony was not prejudicial error. Byers v. Territory, 1 Okla. Cr. 698, 100 Pac. 261, 103 Pac. 532; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092.

The test of whether such testimony is prejudicial or not may be stated thus:

.“Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or. in its instruction to the jury, we must further find, from an inspection of the entire record, that appellant was injured thereby; and to determine this. issue -the court must consider the question as to whether the appellant is guilty * * * of the offense charged.” Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831,

In order better to comprehend the scope and purpose of the harmless error statutes of this and other states, and the federal statute covering the same subject, it will be well to read the history of these enactments brought about by the American Bar Association, a portion of which appears in Byers v. Territory, supra.

In this case the testimony of the defendant himself, if believed by the jury, shows no justification for the homicide. On his testimony alone the jury would have been justified in rendering a verdict for murder, and upon examination of the whole record, applying the test above given, we hold that the error in permitting these improper questions to be propounded to defendant was not prejudicial, under all the circumstances in this case. We by no means approve of the conduct of the court and the prosecuting attorney in this regard, and, while we hold in this ease that the asking of these improper questions did the defendant no harm, the admission of such testimony in subsequent cases might be prejudicial in the extreme, and be reversible error.

Third. The court arbitrarily instructed the jury that, in the event they found the defendant guilty of murder, they should fix his punishment at imprisonment for life in the .state penitentiary. Section 2319, Revised Laws of Oklahoma 1910, provides as follows:

“Any person convicted of murder shall suffer death, ■or imprisonment at hard labor in the state penitentiary for life, at. the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life, at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

The court, in a criminal case, has no right to assume the functions of legislation. If the jury should find the defendant guilty of murder, as they did in this case, it was for the jury, under-the provisions of the statute above quoted, to fix the punishment at death or life imprisonment, at their discretion, and the court's instruction depriving them of this discretion, was error. But of this the defendant will not be heard to complain, since it operated to the advantage of the defendant, and was prejudicial only to the rights of the state. Hunter v. State, 6 Okla. Cr. 446, 119 Pac. 445; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

Fourth. There were 11 different witnesses who testified concerning the dying declarations of the deceased. This character of evidence came up at intervals all through the trial, without there having first been laid a proper predicate for its admission, in the absence of the jury. It would serve no good purpose to set out in detail the evidence offered, the numerous objections interposed, and the controversies and dialogues indulged in by the court and counsel.

The admissibility of such evidence is ordinarily a question of law for the court, and the court should require the necessary preliminary proof to be first made in the absence of the jury. If this rule had been adhered to in this case, it would have eliminated much of the controversy and friction that manifested itself from time to time between the court and counsel, as shown by this record. But, since the competency of such declarations, under our practice, is ultimately for the jury, and since the record in this case shows that there was ample evidence to justify the admission of these dying declarations, the irregular manner of their admission, under the -circumstances, was not prejudicial. Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030; Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792.

Defendant complains of the following instruction:

“You are further instructed that, while a person need not be in actual imminent peril of his life being taken, or of great personal injury being done to him, yet, if the jury believe that the defendant had reasonable grounds to believe, and did believe, from the facts as they reasonably appeared to him at the time, that the danger was so urgent and pressing or apparently so urgent and pressing that the defendant could not avoid taking such steps as he did to protect himself, then it was justifiable, and you should find the defendant not guilty.”

It is contended that this instruction is erroneous, in that it required the jury to believe this state of facts before the defendant could be acquitted. We do not think that this instruction is susceptible of such interpretation, and the question of apparent danger and self-defense was sufficiently, if not correctly, stated. Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143; Johns v. State, 8 Okla. Cr. 585, 129 Pac. 451.

Sixth. Reverting again to the imposition of a fine, or threatened fine, for contempt upon one of the attorneys for the defendant in the presence of the jury, the record shows that one of the state’s witnesses had testified that, after the effects of the surgical operation performed on the deceased had passed, to such an extent that he had regained •consciousness, the deceased then told the witness how the tragedy came about. In the course of the many questions, Interruptions, and objections, an attempt was made to have the witness state whether the deceased said anything indicating that he knew that his wounds were fatal, or that he did not expect to recover. The court interrupted the examination, as before quoted, culminating thus:

“By the Court (interrupting) : I will fine you $10. You are going to stop that shooting off your mouth while I am talking. You understand I am trying to run this thing without your assistance, and while I am talking I want you to keep your mouth shut; do you understand? If you don't understand,, you will do it before you try any more cases here in this courthouse.”

Further than this the record does not show whether a fine for contempt of court was in fact imposed or enforced. From all that preceded and all that followed this incident, as shown by this voluminous record, we are led to believe — and the jury must have believed — that the attorneys for the defendant made little effort to assist the court in conducting this trial in an orderly manner. The remarks of the court were unfortunate, but the attitude of the attorneys was in some measure responsible for this. The defendant and his attorneys cannot be. heard1 to complain of matters brought on by their own wrong. If the rule were otherwise, any defendant in a criminal case would have it within his power to inject reversible error into his ease, and so defeat the ends of justice. We hold, under all the circumstances in this case, that the conduct of the court complained of was not prejudicial.

The judgment of the trial court is affirmed.

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


author: MATSON, J.

text:
    EULA CARDWELL v. STATE.
    No. A-3272.
    Opinion Filed June 4, 1921.
    Rehearing Denied Nov. 19, 1921.
    (201 Pac. 817.
    (Syllabus.)
    1. Appeal and Error — Burden to Show Prejudicial Error. On appeal, burden is upon appellant to establish both error and prejudice resulting therefrom.

      2. Same — Record—Overruling Defendant’s Challenge for Cause. In prosecution for murder, held not reversible error to overrule defendant’s challenge for cause to individual jurors on ground contained in subdivision 8, § 5859, Rev. Laws 1910, where the record does not disclose that jurors’ scrupples or opinions are such as to preclude them from returning a verdict of guilty with death penalty.
    3. Jury — Disqualification—Conscientious Scruples Against Death Penalty. In cases where death is provided as a punishment for crime, trial courts should exclude all jurors who have conscientious scruples or opinions against the infliction of the death penalty, whether the challenge comes from the state or the defendant, or, without challenge, where such is made to appear before the jury is sworn to try the cause.
    4. Trial — Instructions—Sufficiency. Where the instructions fairly state the law of the case as applied to the evidence, and are as favorable to defendant as the evidence warrants, they are sufficient.
    6. Appeal and Error — 'Errors not Properly Raised Below. Alleged errors occurring during the progress of a trial, and not properly raised and presented in the court below, will not be considered on appeal.
    Appeal from District Court,. Tillman County; Frank Matthews, Judge.
    Bula Cardwell was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Mounts, Davis & Williams, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Sam Hooker, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Tillman 'county, wherein the defendant, Eula Cardwell, was convicted of the crime of manslaughter in the first degree for killing one Russell Godfrey, and sentenced to serve a term of four years’ imprisonment in the reformatory at Granite, Okla. From such judgment of conviction an appeal has been taken to this court by filing of a case-made with petition in error attached.

Assignment of error No. 2 is as follows:

“That the court erred in overruling the challenge of the defendant to the jurors Cason, Bracken, Wade, and Heffner.”

It appears that during the examination of the jurors on their voir dire the attorney for the defendant questioned the jurors as to whether or not they entertained conscientious scruples as to the infliction of the death penalty, and the record discloses that the jurors above named answered that they entertained conscientious scruples against the infliction of the death penalty as a punishment for crime. Further, it is also disclosed by the record that the defendant exhausted all his peremptory challenges, and that the above-named jurors served on the trial jury after the trial judge had overruled the challenge of the defendant to such jurors on that ground, to which action counsel for defendant saved proper exception at the time.

The charge against this defendant was murder.

Section 2319, Revised Laws 1910, provides:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death .or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

Section 5855, Id., relating to the formation of petit juries in criminal causes, provides:'

“A challenge for cause may be taken either by the state or .the defendant.”

Section 5856, Id., provides:

“It is an objection to a! particular juror and is either: First, general, that the juror is disqualified from serving in any case on trial; or, second, particular, that he is disqualified from serving in the ease on trial.’ ’

Section 5858, Id., divides particular causes of challenge into two kinds:

“First. For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this chapter as implied bias.
' “Second. For the existence of a state of mind on the part of the juror in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice . to the substantial rights of the party challenging, and which is known in this chapter as actual bias. ’ ’

Section 5859, Id., provides eight different grounds upon which a challenge for implied bias may be taken, the eighth ground of which 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.”

From the foregoing sections of the statutory law of this state, it is clear that a petit juror who is called to serve in a murder case is subject to challenge on the ground of implied bias for the entertainment of such conscientious opinions as would preclude his finding the defendant guilty. But the conscientious scruples or opinions sufficient to disqualify a juror in a murder case under our statutes must be such as would preclude him from agreeing to a verdict of guilty with the death penalty attached. Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736.

The particular ground of challenge set out in subdivision 8, supra, was evidently intended for the benefit of the state. In many of the states fthis particular ground of challenge for cause is confined to the prosecution. In this state, however, tbe Legislature has apparently made no distinction between the state and the defendant — permitting either party to interpose a challenge upon this ground.

However, it is extremely difficult to see how defendant could be prejudiced by the service on the jury of one who, although he may believe defendant guilty of murder, would not return a verdict to that effect with the death penalty attached, where, as in this state, the jury in its discretion may either assess the punishment at death or at imprisonment for life. Taking the view of the statutes involved most favorable to defendant, viz., that they permit defendant to take a challenge for cause on this ground, nevertheless the burden is upon defendant to make it affirmatively appear that the challenged juror was clearly disqualified within the meaning of the statute.

In the instant case all that appears from the record is that the jurors mentioned have conscientious scruples against the infliction of the death penalty as a punishment for crime. The entire voir dire examination of these jurors is not before us. Whether or not the scruples or opinions are merely against the law itself, or are such as would interfere with the performance of his duty under his oath and preclude the juror from returning a verdict of guilty with the death penalty attached, does not appear. This court is not inclined to hold an error in the selection of the trial jury reversible which apparently did not result to the substantial prejudice of the defendant upon the trial; and where it does not clearly appear from the record that the conscientious scruples or opinions of the jurors compláined of were such as would preclude them from returning a verdict of guilty of murder with the death penalty attached, it cannot be said that the trial court so abused its discretion in the selection of the jury as to commit reversible error in overruling defendant’s challenges to these jurors for cause.

However, it may be added, for the future guidance of the trial courts in cases where the death penalty is provided as a punishment for crime, that the better practice would be to exclude all jurors who have conscientious scruples or opinions against the infliction of the death penalty, whether the challenge comes from the state or the defendant; or even if, without challenge, such is made to appear before the jury is sworn to try the cause, the court should of its own motion excuse the Juror.

Certain instructions of the trial court are complained of, but the court has examined the transcript of the evidence, and we are convinced that the instructions fairly state the law of the ease as applied to the facts, and are, when considered as a whole, free from any reversible error, and as favorable to the defendant as the evidence would warrant.

The other alleged error complained of was not properly raised in the court below.

For the reasons stated, the judgment is affirmed and the cause remanded to the lower court, with instructions to carry into effect its judgment.

DOYLE, P. J., and BESSEY, J., concur.


text:
    JOHN WHITE v. STATE.
    No. A-3486.
    Opinion Filed Sept. 13, 1921.
    Rehearing Denied Nov. 19, 1921.
    (201 Pac. 522.)
    (Syllabus.)
    2, Appeal and Error — Time for Objections Below — Taking of Exhib-First Degree. In a presecution for murder, evidence held to sustain a conviction of manslaughter in the first degree.
    2. Appeal and Error — Time for Objections Below — Taking of Exhi-its to Jury Room. An assignment of error based upon alleged misconduct on the part of the jury and bailiff in taking certain exhibits, articles of clothing offered in evidence, with them to the jury room, where no objections were made, cannot be considered by the appellate court, where the matter was first brought to the attention of the trial court on a motion for new trial.
    S. Appeal and Error — Contents of Record — Rulings Incorporated in Agreed Statement Supporting Motion for New Trial. The incorporation of rulings or statements of the court, made during the trial in an agreed statement by counsel, in support of a motion for new trial, do not make them proper matter of exception in the record, unless such agreed statement is signed by the trial judge as a bill of exceptions.
    4. Trial — Taking Exhibits to Jury Room not Error. It is not error for the jury to take to the jury room; on their retirement, certain exhibits introduced in evidence for the purpose of inspection, where it did not appear that they were used by the jury in a manner inconsistent with the testimony.
    Appeal from District Court, Cotton County; Cham. Jones, Judge.
    John White was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Morris & Wells and J. W. Brooks, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, John White, was tried in the district court of Cotton county upon an information for the murder of Frank Horton. The jury by their verdict found him guilty of manslaughter in the first degree, and assessed the punishment at seven years in the penitentiary. From the judgment rendered in pursuance of the verdict he appeals.

The deceased lived about 10 miles south of Temple on a farm. On the date alleged, between 5 and 6 o’clock in the evening, he was planting cotton near the east and west section line when the defendant walked up the road from his home about , half a mile east and shot and killed' the deceased.

The evidence showed that one bullet entered the left side between the ninth and tenth ribs, about five inches to the left of the spine; another entered a little below and a little nearer the spine; and one entered the left arm; and another near the wrist.

Gus Allen, the first witness for the state, testified:

“Frank Horton lived on the éast 80 acres of the quarter section I lived on. I was planting some squash seed in the yard about half past 5, and I heard a gun fire and a man hollered. I looked and saw a man standing with smoke in front of him. The gun fired again and the man hollered again, and after that I heard only the report of the gun, two or three times. The man that fired the shots ran east along the section line towards John White’s house. I ran down there as quick as I could, and found Frank Horton lying on his right side, his face to the Avest. I raised his head but could not see any sign of life. His feet were about 6 feet from the fence and his head about 12 feet. His team and planter were 12 steps north of the body. There was a little pair of pinchers and a pocketknife in his pockets, also a pocketbook. About 10 feet north of the body, towards the planter, there was a little monkey-wrench on the ground.”

The shirt, underwear, and overalls worn by the deceased at the time were introduced in evidence. Three or four Avit-nesses testified that they made an examination of the ground where the' body was found, and picked up a bullet a few inches from the left, arm of the deceased, and the next morning another bullet was found four or five inches from where the first bullet was found.

Johnny White testified:

“I was 16 years old the 4th day of last October.- Me and my brother Charley were fixing the fence at Horton’s corner that afternoon. The bottom wire was broken, and we were stretching it with a two by four we found laying on the ground. It had been used for a prop for the Avest post of Mr. Horton’s gate. Mr. Horton came and asked us. which one of us got it.. I told him I did. He said one of us had been getting it every time we came by there, and I told him whoever said I did lied. He said' he was going to get over and kick, me all over the lane and. if he ever caught me on the place he would kick me off of it. ' When Papa came home, 1 told him that Mr. Horton ran on to us about the post. He asked what did he say. I said he did not say much of anything, and Papa said, ‘You want to leave Mr.'Horton-alone,’ and I went on to work.”

Charley White testified:

“I will soon be 19. My sister Pearl ran to the house and said, ‘Mr. Horton is killing Papa.’ I walked up the lane and met Papa. I asked him what he had done, and he said: ‘I have killed Mr. Horton. You go across to Mr. Yarner and tell him where the monkey-wrench was.’ I ran across to Mr. Varner and told him that Papa wanted him to see about the monkey-wrench that was pretty close to Horton.”

As a witness in his own behalf, the defendant testified:

“I was 44 or 45 on the 26th day of last. July. I went to Byers that morning. My wife was with me and I took my gun along. We got back home about noon. My baby boy said something about Johnny and Mr. Horton having a racket. I never paid any attention to it. Some boys came along and asked for my seine. I told them they could have it, and after dinner I followed them down to the river. -I sat there a while watching them seine. Then I went up in the field where the boys were at work. I asked Johnny about the racket he had with Mr. Horton. He said there was nothing to it only Mr. Horton got mad over a plank. I said, ‘I want you boys.to let Mr. Horton alone.’ Then I want out in the cotton patch and fixed the disk on the go-devil. When I came back to the house it was getting something like sundown. My wife came around, and I said: “Get supper. I am hungry.’ I put my hat on and thought I would go up the road and see if there were any posts down. It is a half mile from my house to where Horton was. When I got . about hglf way, I put up a wire that was down and walked on a little piece. I noticed Mr. Horton had turned his team around- and stopped, so when I got close to him he hollered to me to come over, that he wanted to talk to me, and I says: ‘1 haven’t got time this evening. I will be over in the morning.’ He said, ‘You blue-eyed son of a bitch, if you don’t come to me, I will come to you.’ I was in the center of the road, I says, ‘Mr. Horton, I don’t want any trouble with you.’ He said, ‘No, you never want any trouble, but you let your kids come up the road and go through my field, and you know I don’t want them there.’ I said, ‘I am willing to make that right.’ He said, ‘You will not do anything you say you will, and .you will not make it right.’ I said: ‘Mr. Horton, you have no right to be mad at me. I never done you any harm in my life.’ He calmed down when I told him what I would do about making the boys behave. I walked up to the fence where he was at. We stayed there and talked maybe five minutes. I said, ‘If the boys have taken that prop down, I will guarantee that your fence will be put back in proper shape.’ ‘All right,’ he said, ‘the fence is not hurt, but there is another thing you remember, don’t you?’ I said, ‘I don’t know, what is that?’ He said, ‘You remember ordering me out of your field when I was hunting?’ I said: ‘Yes, I hollered to you.’ You see I have my place posted. I said, ‘You see that sign there on the gate.’ He got mad all at once and grabbed me around the shoulders and jerked me into the fence and gave me two or three hard jerks and went with his right hand into his hip pocket. I.grabbed him, and we were riding up and down this fence, first one way, then the other, and my holt gave out and be got loose and he cut me with his wrench and struck at me. I dropped back and pulled my pistol out of my right-hand pocket and fired it until it quit shooting. When I fired the last shot at him, he was in a stooping position and he stumbled back and fell. Before I killed him I hollered as loud as I could, I guess I was scared. I walked right back and got about 50 yards when I saw Lon Varner coming. I hollered to him, ‘There is a wrench right north of Horton’s head, and I want you to watch that wrench.’ Varner acted like he did not understand what I raid, so when I met my boy Charley I told him to tell Mr. Varner to notice that wrench. My pistol was a 38 double action. I never put but four cartridges in it. I shot Mr. Horton because I thought he was going to kill me.”

Carney Varner testified:

“My age is 15 years. I was up on the big hill and heard Mr. Horton talking loud. I looked down, and Mr. Horton and another man were fighting. I hollered to my •father and told him they were fighting over there. I ran further up and I looked again and heard three or four shots. I saw Mr. Horton fall. There was a pause between the first and second shot. Mr. Horton had commenced hollering, and after the shots were fired he fell. It looked to me that one was on one side of the fence and one on the other. They seemed to be scuffling back and forth. That forenoon I fixed the fence near where the killing occurred. Johnny White was with me. Johnny picked up a two by four plank and was trying to stretch the wire with it. Mr. Horton came over to us and asked Johnny which one of us got that prop. Johnny said he did. Mr. Horton told Johnny he had been taking down that prop all year, and Johnny told Mm that any one that said he had taken it down was a liar, and he told Johnny he was going to get over there and kick him. Then me and Johnny went up to my house.”

The testimony covers several hundred pages, but the foregoing statement is sufficient to understand the questions raised.

But two grounds for reversal are relied on: The first is based upon alleged misconduct of the jury and bailiff in taking certain exhibits offered in evidence with them to the jury room.

The record shows that in support of this ground of the motion for new trial there was an agreed statement which recites:

“That in the argument of the case counsel for defense examined the clothing of the deceased and of the defendant, and stated to the jury that he desired that they take this clothing, including the underclothes, shirt, and overalls of the deceased, and the clothing of the defendant introduced in evidence with them to the jury room and put them on and test them out as to wounds, powder burns, or other evidence that might appear on such garments.
“That this argument was made in the' presence of and with the consent of the defendant and the court. Counsel further' said, ‘You will have all these exhibits,’ in his remarks just prior to his calling particular attention to the clothing.
“The bailiff in charge of the jury, after having been sworn to take charge of the jury, collected up all the exhibits in the presence of the court and counsel for state and defendant and’ the defendant himself, and carried them out of the courtroom with him when he took the jury out. The act of bailiff in gathering up the exhibits and carrying them out of the courtroom while with the jury was all done in the presence of the defendant and his counsel, and the counsel for the state, after the court had instructed the jury to begin consideration of the case on the following morning and after having instructed the bailiff that such things as they would want, would be sent them the following morning, and that defendant was never afterward consulted about what exhibits should be sent to them.
“By the Court: No expression of authority was given to the bailiff by the court to deliver the exhibits to the jury.”

Other than this agreed statement, there is- nothing in the record indicating the rulings or statements of the court. The incorporation of rulings or statements of the court, made during' the trial in an agreed statement by counsel, do not make them proper matter of exceptions in the record, unless such agreed statement is signed by the trial judge as a bill of exceptions. However, the question here attempted to be pre-sentecl was before this court in several cases and.- decided adversely to appellant^ contentions. In the ease of Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, it was held that there was no error in allowing the jury to take with them to the jury room a coat worn by the deceased when he was shot,, which was introduced in evidence, where the defendant through his attorney in open court consents thereto. Nor was there any error in some of the jurors putting on the coat in the jury room to observe the location of the bullet holes therein.

In the case of Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, it was held:

“Where on a trial for murder, the court permitted the jury to take, on retirement, and to have the same in their possession in the jury room, while deliberating, the defendant’s .shotgun and the shells and the shot which had been introduced in evidence, and it not being made to appear that they were used by the jury in a. manner not consistent with the evidence, it cannot be said the jury thereby received evidence out of court.”

In the opinion it is said:

“In the case at bar it cannot be.said that the jury received evidence out of court. These articles had been properly identified and received as evidence in the ease. Nor can it be said- that the jury was guilty of misconduct, such as prevented a fair and due consideration of the ease, for them to take with them these articles. No injury is pointed out, and no prejudice to the substantial rights of the defendant appears; and we are of opinion that in the case at bar there was no error in that regard.”

The other ground urged in the brief is that the evidence is insufficient to sustain the verdict, and counsel say:

“As we view the case, the defendant was either guilty of murder or nothing, and we contend that under the testimony in the ease he was justified.”

The theory of the prosecution appears to have been that the killing was an assassination. The defendant, sought an acquittal on the ground that he acted in self-defense.

We deem it sufficient to say that we are impressed by the record that the altercation which resulted in this unnecessary homicide was of the defendant’s own seeking. We have seldom read a record of conviction where there was less palliating circumstances in behalf of the defendant than this case presents. According to his own statement on the witness stand, and the physical facts, he is guilty of manslaughter in the first degree, and we think he ought to be thankful that the' jury dealt so leniently with him.

Finding no error in the record, the judgment of the lower court is affirmed.

MATSON and BESSEY, JJ., concur.


text:
    CLINT WELCH v. STATE.
    No. A-3714.
    Opinion Filed Sept. 12, 1921.
    Rehearing Denied Nov. 19, 1921.
    (201 Pac. 524.)
    (Syllabus.)
    1. Larceny — Sontence of 10 Years for Theft of Hog Excessive. In a prosecution for the theft of a hog, the jury fixed the punishment at imprisonment for 10 years. Held excessive, and the judgment modified to 4 years, and affirmed as modified.
    2. Appeal and Error — Reduction of Excessive Punishment. The Code of Criminal Procedure (section 6003, Rev. Laws 1910) provides: “The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.” Under this provision the remedy in cases like this, where the punishment assessed is excessive, is found, not in a new trial, but by reducing the punishment.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Clint Welch was convicted of the theft of a hog and he appeals.
    Modified and affirmed.

      Ed Anderson, Bridges & Yertrees, and Hays Dillard, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Upon an information charging the theft of one hog, the property of Jay Barnett, Clint Welch and Henry Garrett were tried and both found guilty as charged; the punishment of the defendant Welch was fixed at 10 years in the penitentiary, and that of the defendant Garrett at 2 years in the penitentiary. Motion for new trial was duly filed and overruled, and judgment was duly rendered as to each in accordance with the verdict. A case-made on the part of both defendants was duly signed, settled, and filed, and notices of appeal were duly served and the same filed in this court on February 25, 1920. The Attorney General has filed a motion to dismiss the appeal, because no briefs have been filed, but as the case-made is before us we will overrule the motion to dismiss.

The errors assigned áre that the court erred in its rulings in the admission of incompetent and in rejecting competent evidence, to which exceptions were duly saved; that the evidence is insufficient to sustain the verdict; and that the punishment assessed is excessive.

The petition in error is silent as to the defendant Garrett; therefore there is nothing we can review as to him.

The evidence shows that Jay Barnett, who lived five miles northeast of Waurika, had a hog weighing about 250 pounds stolen from a pen on his place Saturday night, November 2, 1918; the next evening the hog was found at the defendant Clint Welch’s place; it had been butchered, the entrails removed, and the ears trimmed off. The owner and several other witnesses identified the hog.

Sheriff Ballard testified that he reached the defendant’s place Sunday evening before sundown, and the defendants were dressing .a hog, had one side scraped and the entrails removed, and both ears had been cut off; that he asked the defendant Welch where the ears were and he said the boys were monkeying around and trimmed them off and burned them up; that he asked Welch where he got the hog, and he said, “I raised it.”

The defendant Clint Welch as a witness in his own behalf testified that he had bought the hog from his brother.

We have, carefully examined the entire record and have failed to find any error. There can be no doubt of the sufficiency of the evidence to sustain the verdict. However, we are inclined to think that the punishment assessed is excessive.

It appears that appellant is a married man with a wife and three children of tender years, and that this is his first offense.

It is both the spirit and intention of our laws that punishment for crime shall be imposed for the protection of society and reformation of the criminal. As we view the record in this case, we are convinced that the maximum punishment assessed by the jury was due to passion and prejudice, and we are satisfied that 4 years’ imprisonment of the defendant will be as much protection to society and do him as much good as would 10.

The judgment sentencing the said Clint Welch to imprisonment in the penitentiary for the term of 10 years is hereby modified to the extent of reducing it to a 4 years’ imprisonment in the state penitentiary. As so modified, the judgment is affirmed.

MATSON and BESSEY, JJ.', concur.


text:
    L. SHEARS v. STATE.
    No. A-3713.
    Opinion Filed Nov. 21, 1921.
    (201 Pac. 816.)
    (Syllabus.)
    Trial — Right to Clear Affirmative Instruction on Issue. The defendant has a right to have a clear and affirmative instruction given to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    L. Shears was convicted of the crime of grand larceny, and he appeals.
    Reversed and remanded.
    Crump & De Graffenried, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Muskogee county, wherein at the November term, 1919, the defendant, L. Shears, was convicted of the crime of grand larceny and sentenced to serve a term of one year in the state penitentiary.

The Attorney General has filed a confession of error as follows :

“This was a prosecution and conviction for the erime of grand larceny, to wit, stealing a sack of brass that had been ripped out of the machinery of a cotton gin in the town of Haskell.
' “The defendant, of course, denied stealing the brass, and, produced evidence, which was probably false, that he did not leave his house the night the brass was stolen, and that two men came to his place that very night and wanted to sell him a sack of brass, and that he refused to purchase it for the reason that it was nighttime. The brass was found on his premises by the officer, and his defense was that he did not steal the brass or have anything to do with stealing it, and that the parties who came to sell him the brass left it there, without his knowledge or consent.
“Counsel for defendant offered an affirmative instruction covering his defense, which instruction told the jury that if they believed ‘that some person or persons other than the defendant put the brass at his house without the defendant’s connivance that the verdict should be not guilty.’ This instruction states the law. The judge supplemented that instruction with the further instruction that if the brass was put there without the ‘knowledge or consent’ of defendant they should acquit him. Therefore it cannot be said that this instruction is harmless, because from defendant’s own testimony they might infer that the person left the brass at his house with his consent, or at least his knowledge. That instruction even would have been erroneous where the charge was receiving stolen property, because to make one guilty of receiving stolen property the person must know, or have such knowledge as a reasonably prudent man would know, the property was stolen. If the court desired to instruct the jury on the law of receiving stolen property, he should have stated to them the elements of the crime.
“We therefore respectfully submit that the judgment in this case should be reversed: and that same should be remanded for a new trial.”

An examination of the record convinces this court that the confession of error of the Attorney General should be sustained, and for reasons stated therein the judgment is reversed and cause, remanded to the trial court for a new trial, or for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


text:
    DICK JOHNSON v. STATE.
    No. A-3659.
    Opinion Filed Nov. 21, 1921.
    (201 Pac. 1008.)
    (Syllabus.)
    Rape — Sufficiency of Evidence. In a prosecution for rape, evidence held sufficient to support the verdict and judgment of conviction for rape in the first degree, and that no material error was committed on the trial.
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Dick Johnson was convicted of rape and he appeals.
    Affirmed.
    Hunt & Beaucamp, John R. Leach, and James S. Davenport, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered upon the verdict of a jury, finding the defendant, Diek Johnson, guilty of rape in the first degree, and fixing his punishment at imprisonment in the penitentiary for 20 years. The information charges that Dick Johnson, Forest Johnson, Raymond Scaggs, and Dan Scaggs, did in Delaware county, on or about the 13th day of August, 1919, unlawfully, feloniously, and by force and violence overcoming her resistance, have sexual intercourse with Lillie Hayes, she, the said1 Lillie Hayes, not being the wife of either of said defendants. A severance was granted, and upon the defendant, Dick Johnson’s separate trial, the jury returned their verdict as above stated.

This case is a companion case' to that of Forest Johnson v. State, affirmed at this term, 20 Okla. Cr. 196, 201 Pac. 1006. The testimony was, in substance, the same, and the assignments of error are the same. Counsel for the defendant, by agreement with counsel for the state, submitted the cause upon their briefs filed in the companion case of Forest Johnson v. State, where this court held adversely to the contentions made.

Upon consideration of the whole case we are satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record. As shown by the record the defendant has had a fair and impartial trial and we think the testimony, without any doubt, is ample to sustain the conviction. The judgment of the district court of Delaware county is therefore affirmed.

MATSON and BESSEY, JJ., concur.