text:
    COURTNEY D. ORRELL v. STATE.
    No. A-10343.
    Jan. 3, 1945.
    (154 P. 2d 779.)

      Embry & Sutton, of Chandler, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Walter Hill, Co. Atty., of Prague, for defendant in error.
   BAREFOOT, J.

Courtney D. Orrell was charged in tlie district court of Lincoln county with the crime of murder; was tried, convicted and sentenced to serve a term of life imprisonment in the State Penitentiary. From this judgment and sentence he has appealed.

The defendant relies upon fonr propositions for a reversal of this case. They are as follows:

“1. The verdict is not supported by sufficient evidence. And the court severally erred: (a) In not sustaining plaintiff in error’s demurrer to the evidence of the state in chief; (b) the court erred in not sustaining defendant’s motion to direct a verdict of not guilty at the conclusion of all of the evidence; and (c) the court erred in overruling the motion for a new trial.
“2. The court erred in not instructing the jury as to manslaughter in the first and second degrees, and not instructing as to assault and battery.
“3. The court erred in limiting the number of witnesses as to the reputation of defendant.
“4. And the court erred in not sustaining defendant’s objection to argument of counsel for the state, to the jury.”

A consideration of the first assignment of error necessitates a short statement of the evidence.

In the early morning of August 18, 1941, the nude body of a young girl was found by the caretaker in the Oak Park Cemetery, just west of the city of Chandler, in Lincoln county. It proved to be the body of Billie Gray-son, 18 years of age.

Upon examination by the officers and doctors, bruises were found upon her neck and body, and appearances which justified the belief that she had been choked or strangled. Her neck was broken. Her clothing and shoes were found near the body.

We have read the entire record carefully, and reread a great part of it, and have carefully examined the briefs submitted by the state and the defendant. The conclusion we have reached is the conclusion of an appellate court from the record before us, and the law as applied to the facts. It is obvious that in our duties as an appellate court we cannot act as if we were jurors, or the trial court.

Doctors testified that Billie Grayson had been dead since about midnight. The record revealed that Helen Grindstaff, 14 years of age, and Billie Grayson, IS years of age, were neighbors, living near the town of Warwick, in Lincoln county. On Sunday, August 17, 1941, they spent the afternoon at their homes, and at the homes of friends. In the late afternoon, about dark, they went to U. S. Highway No. 66, and finally went to Warwick, on the highway. There they met a young man by the name of John H. Terrell, at a filling station, and got in his car and went to Chandler. Helen Grindstaff testified that they were looking for watermelons. They left Chandler and started toward Warwick, but the girls got out of the car at a filling station on Highway 68, and started walking west toward Wellston, the Grindstaff girl saying that she thought her father was there. This was about 10:30 or 10:45 at night. They -walked west to the Pioneer Camp, which is located at a cut-off on the highway, just east of the town of Wellston. After arriving at this point, they decided it was too late to go on to Wellston, and turned back east on Highway 66, to go to their homes. They had gone but a short distance, according to the testimony of Helen Grindstaff, when a car drove up, and at the invitation of the driver, they got in the car. She testified positively at the trial that defendant was the driver of the car, and positively identified him. Reference will hereafter be made to her testimony in regard to the time they were picked up by defendant, and her previous testimony and statement with reference thereto. She testified that Billie Grayson and she both rode in the front seat with defendant, and that Billie Grayson was sitting nest to defendant, and she was on the outside. She described the car as a two-seated dark colored car, with a light, radio and clock on the dashboard. The radio was playing when they got in the car. She testified to the following conversation with the defendant:

“Q. Did you have any conversation at that time, you and Billie, with Mr. Orrell? A. We talked a little. Q. Do you remember what you talked about? A. He asked us did we want to go to Chandler with him, and we told him no, we thought we had better get home. He said it was 'a little far for you girls to walk, and I will take you home/ and he started out, and he asked us how far apart the houses were, and things like that. Q. Did he take you home? A. No, sir. Q. Where did he take you? A. On the other side of Deep Fork bridge, the south fork of Deep Fork bridge, under a pecan tree. Q. How did he get to that place from where you got in — which direction did you go? A. We went south. Q. You mean you went south from Warwick? A. Yes, sir. Q. You went east to the corner of Warwick and then turned south, is that what you mean? A. Yes, sir. Q. Across Deep Fork bridge, and what happened there? A. He stopped the car, and I started to get out, and holding the door open for Billie, but he grabbed her and drove off. Q. What did you do? A. I started running after the car. Q. You didn’t catch the car, did you? A. No, sir.”

This was the last seen of Billie Grayson until her nude body was found in the cemetery the next morning, as above stated.

To corroborate the witness Helen Grindstaff, the state first offered the testimony of Mr. and Mrs. Ralph Goggin. They were farmers living near the town of Wellston. Some time between 11 and 12 o’clock on .Sunday night, August 17th, they left their home to meet the bus going into Wellston from the east. They were meeting someone who was to get off the bus at the Pioneer Camp. While waiting for the bus, they saw two girls come to the Pioneer Camp, and then turn east, walking down the pavement. They also saw a car coming from the east, drive into the Pioneer Camp, turn around and start back east. Mr. Goggin did not see the car stop, but Mrs. Goggin testified that she saw the car stop right where the girls were, but she did not see them get into the car. Neither of these witnesses was able to identify the two girls, or the defendant, but both testified that the car was a dark colored sedan.

Jim Leake lived east of Chandler, and was an oil field pumper for the Magnolia Petroleum Company. Pie worked on Sunday night, August 17th, from 6 in the evening until midnight.” After finishing his work, he drove through the Oak Park Cemetery on his way from work. This was his usual route home. As he approached the cemetery from the south, he saw an automobile driving north, from Highway 66 toward the cemetery. The cemetery was about 1,000 feet north of the highway, and the car was about halfway between' the cemetery line and the highway. He testified that the car disappeared, going north into the cemetery. lie observed the tag number of the car, but only “caught” the first number, which was “4.” This number indicated the county in which the license had been issued, which was Pottawatomie county. This witness was himself driving a car the license to which had been issued in Pottawatomie county, and the first number of his tag was also “4.” This witness also testified that the car he saw was a late model; that the light near the license plate illuminated it very distinctly, and that he observed that the color was dark red or maroon. The license number of defendant’s car was 4-444, and it was a maroon, 1941 Super Deluxe Ford sedan.

The state also offered the evidence of two witnesses, Silas Lowery and Howard Anderson, both of whom were inmates of the State Penitentiary, and had been confined in the county jail of Lincoln county while defendant was in jail awaiting trial. Both of these witnesses testified to a conversation with defendant prior to his trial. Silas Lowery testified:

“Q. Will you please state to the court and jury just what statements he made to you with reference to this case? A. Well, me and Howard Anderson was sitting in the cell on the bunlr. He came in and sat down on the other bunk, and me and Howard had been talking about our cases, and Howard said he hated to go to the penitentiary for something he didn’t do. Orrell said, What would you do in a case like mine?’ He said, ‘I took the girls out, but I didn’t kill her,’ and he broke down and cried. Q. That is all the conversation you had? A. Yes, sir.

Howard Anderson testified:

“Q. Will you please state what that conversation ■was? A. We was sitting in the cell talking, me and Silas Lowery, and Courtney Orrell come in there, and I made the statement I hated to go to the penitentiary for something I didn’t do, and he said, What would you do in a case of my kind? It looks like I am blowed up. I picked up those girls, but I didn’t kill her; she killed herself,’ and he broke down and cried, and we got up and walked out of our cells, and he went in his and broke down and cried. Q. Did you have any further conversation with Mr. Orrell about this case? A. No, sir, not about the case, only he told me not to say anything about it.”

On cross-examination it was revealed that these witnesses did not testify at the first trial of defendant, which resulted in a hung jury, and that they told a deputy sheriff of Lincoln county about the above conversations after the trial. The defendant produced a number of witnesses who testified that the reputation of these witnesses in the community in which they lived, for truth and veracity, was bad.

Other evidence was offered by the state, but it was with reference to the time element introduced in this case by the defendant in attempting to establish an alibi, and reference will be made to this evidence in considering the evidence offered by the defendant.

The defendant not only denied that he picked up Helen G-rindstaff and Billie Grayson, as Helen testified, and that he did not kill Billie Grayson, but he attempted to establish an alibi. The facts as herein related will reveal that the time element of the alibi was very close. The defendant’s own testimony places him in close proximity to the scene of the killing very near the time it must have been committed, as shown above.

Defendant testified that he was an oil field worker, that he was married and his wife was named Stella Orrell. He had a stepdaughter eight years of age. He lived with his brother-in-law, Dewey Embry, in an apartment in Oklahoma City on August 17, 1941. I-Ie had recently been engaged in helping to drill an oil well in Payne county for his uncle, H. R. Wayland, who was connected with the Kirk-Green-Way Oil Company. That just prior to August 17, 194-1, the well had been completed, and he was out of work, and looking for a job. He had a brother living in Ohio who had written him that he had a job for him there at $1.12 per hour. He was making preparations to go to Ohio, if he could not secure work in Oklahoma. On Sunday morning, August 17, 1941, he heard of a job near Guthrie, in Logan county, and he a.nd his brother-in-law, Dewey Embry, went to Guthrie, but the job was not open, and he did not secure the same. They returned to Oklahoma City, and he loaded his car with his personal belongings, in preparation to go to his brother in Ohio. On that Sunday evening, he took his brother-in-law, Dewey Embry, to his work, on an oil well located east of Edmond, one mile south of the intersection of U. S. Highways 66 and 77. The brother-in-law was due at his work at 11:30, and they reached the well about 11:20 Sunday night. Defendant left the well to go to Chandler to get his employment pension check, which had been mailed to him in care of his mother-in-law, who lived in Chandler. The distance from the intersection of Highways 66 and 77 east of Edmond, to the Pioneer Camp, where Helen Grindstaff testified he had picked them up, is 22 miles. It will thus be seen how close the time element is, even according to the testimony of the defendant. His testimony as to the time of his arrival at the Edmond well and the time of his departure is corroborated by a number of disinterested witnesses. Defendant testified that he went direct to Chandler, going first to the Leffingwell gas station, where he purchased gas for his car. While there he saw several parties whom he knew. That upon obtaining the gas, he went to the home of his mother-in-law to get his employment pension check. That she was in bed, but informed him that she had mailed the check to him in Oklahoma City. Both he and his mother-in-law testified that he left there-at 1 o’clock a.m., and that they heard the clock strike 1 just as he was leaving. He returned to Edmond and purchased sandwiches and coffee at a restaurant, and took it to the men at the Edmond ivell. That he then returned to Oklahoma City some time between 2 and 3 o’clock, went to the home of his brother-in-law, Dewey Embry, and there was no one at home. He drove around hunting for his wife, and returned to the home about 3:30 and found her there. He was going to Shawnee to get a check from H. R. Wayland, his uncle, for work he had done on the oil well in Payne county, and wanted his Avife to go with him. His wife refused to go, and he placed some of her clothing in his car, thinking that she would go with him, and they had some words, and he left for Shawnee. His uncle was not there, and he could not get the check due him, and returned to Oklahoma City the morning of August 18th, around 10 or 10:30. He called his wife oyer the telephone, and she advised Mm not to come to the home, as her sister-in-law had informed the police of his taking her clothing, and they had a pick-up order for him. He telephoned his Avife again in the afternoon, and she and her brother met him at Eastern and Twenty-third street, and delivered the employment pension check, and he gave his wife her clothing, with the exception of one dress, which was overlooked. He then left for Ohio, going over Highway 66, passing through Chandler and Yinita, and cashing the employment pension check at Miami.

Defendant was later arrested in Sandusky, Ohio, and returned to Lincoln county, where he Avas charged with the murder of Billie Grayson on the night of August 17, 1941. He was returned to Oklahoma by Marvin Roberts, sheriff of Lincoln county, and Bob Turner, a deputy sheriff of Oklahoma City. They returned in the car of defendant, and in this car at the time of the arrival of the Oklahoma officers they found a copy of the Oklahoma City Times of Monday, August 18, 1941, which contained a Avrite-up of the finding of the body of Billie Grayson. The officers talked with the defendant and he at no time made any statement to them that would implicate him in the murder of Billie Grayson. He returned to Oklahoma without the necessity of an extradition.

Defendant’s wife, Stella Orrell, was a witness in his behalf. She corroborated defendant’s testimony as to the time he left Oklahoma City on the 17th day of August, 1941; as to his preparation to go to Ohio to look for work; that she assisted him in packing his things in the car; that her sister-in-law notified the police when he placed her clothes in the car, and of advising him not to come to the home, when he called her over the telephone. She testified positively that she knew he was going to Ohio to look for work, and that their relations were friendly. On cross-examination she denied that he had tried to force her to go to Ohio with him, and testified that he did not twist her arm, and did not threaten to kill her when he talked to her over the telephone, and denied that she spoke of his strange appearance when she talked with him. She identified a letter she had received from him, and this letter was introduced in evidence as a part of the cross-examination. It was as follows:

“Boston, Massachusetts August 30th 1941
“Dearest Stella Pearl — •
“I’ll bet you never expected to hear from me from this section of the country did you? I’m just aimlessly wondering around looking for something to do and have several things in mind that if they loan out everything will be O.K. I hope. I have worried and wondered about you ever since I left Oklahoma City. How are you getting along and how are you lined up at present. I’d give a months pay right now to talk to you for just one hour. I’m going to show you that I can make good just because I know you think that I can’t. I know that I’ve been an awful heel and have let you down plenty but if I can ever make the grade at all it Avill be now and if you haven’t already broken faith with me permanently by the time yon get this I’ll be on my way to doing something right for a change.
“My main idea for getting in touch with you is to straighten out some' financial deals for me. I haye twelve days pay coming that I want you to get from Poftlie and make that $31.50 bank payment. Then you can get that $15.00 relief check from Chandler and give it and $36.00 to the O.K. Furniture Co. and get rid of them. In case the G.E. people haven’t already repossessed the ice-box ask Dude if he’ll pay that up and let me know what amount is necessary to get back in good standing with them. If you can take care of this for me I would appreciate it a whole lot for I’m not in a position to present myself just now. Tell Poolie that as soon as I’m located I’ll get in touch with him and that although things look bad right now that I don’t intend to let him down. I’m sorry that you are not out of the reach of my creditors for I know how they are going to pester hell out of you. I’ve firmly resolved to pay all my debts as quickly as possible and if I get the job I’m working on it won’t take very long to get on top again. Did you ever file any more papers or withdraw that complaint that you had in against me? I hope so for I want to see you before too long. In case I get a job at $70.00 per week that will last quite a while would you leave Oklahoma to live with me again. School will be starting next week and I’m just wondering what you are going to do with Mary Lou. Every time I see a girl about her age or size I get the funniest feeling I’ve ever had. I know that she has a hell of an opinion of me but although most of it is justified I know I still have hers and your interest at heart. Really Stella, I love you more than anything in the world and would like to make you the happiest girl in the world but I know that things can’t go on like they have and Avhile I know your attitude on apologies I’m willing to apologize and try to start over where I got off on the wrong track if you will only let me. I’m only going to ask you for one more chance for I need your. companionship and love to work for and I’m sure if you’ll let me try again I’ll profit by my mistakes and make yon a good husband in every sense of the word. I’ve been SO' lonesome for the past two weeks that I’ve several times thought that I couldn’t got on but I want to hear from you again and see how you feel about things. My present plans call for me to fly to Kentucky as soon as I hear from Marvin and meet him there for a couple of days and talk over a business deal so if you’ll write me a letter addressed to Courtney D. Orrell,’c/o Marvin C. Orrell, Rye Beach, Huron, Ohio, I’ll get it with only about two days delay. That is, if you write back right away. I would give you my address here but I’ll only be' here two more days and then I’m going to head south again. I haven’t any money to enclose in this letter but I’ll send you some just as soon as I can. Tonight is Thursday night and I’d give anything to tune in KYOO and hear Bob Wills and the gang but my radio won’t get them up here. This Ford is getting to be a pretty poor hotel and I’ve slept so much in the front seat that I feel like my skin is just about as rough as the seat covers. How are Dude and Belle getting along. Tell Belle that I’m going to Avrite her a letter before long. Please write to me honey and tell me all the news for I’m practically lost up here by myself and there are lots of things you could tell me. Goodnight and I want you to remember that regardless of how bad I have behaved that I still love and honor and cherish you and Avant you to come home and make me a home and let me show you that I can be as much of a man as you are a woman. Thanks a lot and Avith all the love that a man can bestow on a woman I am still as you would like for me to be.
“Yours forever,
“Corky.”

This letter purported to be sent from Boston, and indicated that the defendant was in Boston, and not in Ohio. Defendant testified that the letter was written in Ohio, and that he had never been to Boston, but that a friend of his mailed it for him in Boston.

On rebuttal police officers from Oklahoma City testified to conversations had with Mrs. Orrell after she filed charges against the defendant. One of these officers testified:.

“Q. I will ask you to state, Mr. Maulding, whether or not at that time Mrs. Orrell told you that her husband, Courtney Orrell, had twisted her arm and tried to make her go out to the car and leave with him? A. She said he had pulled her from the porch or door out to the car, and showed us a bruise on her arm and said he twisted her arm. Q. State whether or not she said he was drunk and crazy? A. She said he was drunk, and either said he was crazy drunk, or drunk crazy, I don’t know which. . . . Q. I Avill ask you if in that conversation she told you that he had called her from 23rd and Eastern and demanded she meet him out there and leave with him, and had said he would kill her if she didn’t? A. Yes, sir. Q. I will change that: If she didn’t say he would kill her before day? Q. Did she make that statement? A. Yes, sir. Before morning, is Avhat she said.”

Several other police officers corroborated the testimony of this officer.

With reference to the time element, on the question of an alibi, it will be noted that Helen Grindstaff testified that she thought the clock in the automobile showed 11:30. This, of course, Avas her best judgment.

Mrs. Goggin testified that she and her husband were at home “until along about 20 minutes — between 20. minutes to 12 and 12.” And that they drove to the Pioneer Camp and saw the girls walking east on the highway. Mr. Goggin corroborated her testimony on this point.

Mae Turner, the bus agent at Chandler, testified that the westbound bus Avas due at Pioneer Camp at 11:21, but she did not know or have any record of the correct time it arrived there on the night of August 17, 1941.

The defendant testified that he left the Edmond well at 11:30 and that he drove to Chandler and went first to the Leffingwell filling station. That he remained there until shortly before 1 a.m., when he went to the home of his mother-in-law in Chandler, and that he left there at 1 a.m.

The state introduced a number of witnesses who saw the defendant in Chandler on Sunday night, and they testified as to the time.

'Kenneth Miller worked at a filling station in Chandler. He got off work at 11 o’clock. He talked with some other fellows about an hour, and then went down to the Leffingwell filling station. He knew the defendant, Courtney D. Orrell, and saw him there at that time. His best judgment was that it was 1:30. It was 2 a.m. when he got home.

Emmett Rice testified that he came to the Leffingwell filling station between 1:15 and 1:45 on the morning of August 18, 1941. That he knew the defendant, and saw him at the filling station at that time. He fixed the time by looking at the courthouse clock as he went home, and it was 10 minutes until 2 o’clock. It was about four blocks to his home. Mrs. Rice, who was with her husband, saw the defendant at the filling station, and it was her best judgment that they were there at 1:30.

Leonard Heath worked at the Leffingwell filling station. He identified a ticket signed by the defendant for gas sold him on the night of August 17th, and stated that the defendant was there some time after 12 o’clock, but he could not state the exact time. He knew from the ticket that it was after 12 o’clock midnight.

Jim Leake testified to seeing a car with the first number, “4”, of the license tag going into the cemetery and as to the time, stated that “couldn’t'have been earlier than 12:20 or later than 12:30. It was within that ten minute period.”

The route taken by the car after Helen Grindstaff got out of it, according to her testimony, and the time the car was seen by Jim Leake, entering the cemetery, between 12:20 and 12:30, remains a mystery. Billie Gray-son is dead, and the defendant denies having taken her into his car.

This court had occasion to consider the question of alibi, and especially with reference to the time element thereof, in the case of Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289, 295. In that case the court did not instruct the jury upon the question of alibi, and this was assigned as error. Here the court gave an instruction fully covering the question of alibi. Judge Jones, in writing the opinion, said:

“An examination of the defense testimony shows that the defendant had left the Fritts home and probably arrived back in Marlow before Garland Smith, the undertaker, left to go to the Fritts home, as there is no testimony on the part of the defendant or of Smith that they passed each other on the road. Smith says that he was at the Fritts home about 11 o’clock and stayed 15 or 20 minutes before driving- back to town. Under the defendant’s own testimony, he was in the immediate vicinity all during that day; and the trial court committed no error in holding that in vieiv of the nature of the testimony given by the defendant’s witnesses, and the indefiniteness with which they fixed the time, the evidence showed a 30- or 40-minute period in which the act could have been committed and that an instruction on alibi was not proper.
“The question of alibi is only incidental to the defendant’s theory; the prosecutrix related a whole series of acts covering a period of 18 months. The defense theory was that this story was a fabrication, false in its entirety and without any foundation. He and his witnesses offered testimony to support his theory; and the general instructions of the court thoroughly covered this phase of the case.
“This court will not hold that the trial court should give an instruction upon a so-called ‘fifteen minute alibi’ where all of the defendant’s testimony shows that he was in the immediate vicinity where the alleged offense occurred.
“Alibi is a physical circumstance and derives its entire potency as a defense from the fact that it involves the physical impossibility of the guilt of the accused. Harris v. State, 120 Ga. 167, 47 S. E. 520.
“In the case of Barbe v. Territory, 16 Okla. 562, 86 P. 61, our court laid down the following rule:
“ ‘To entitle the defense of alibi to consideration, the evidence must be such as to show that, at the very time of the commission of the crime charged, the accused ■was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof; and, in a criminal prosecution, unless the evidence fills this requirement of the law, no instruction on the subject of alibi is necessary to be given by the trial court.’
“In the case of People v. Charles, 9 Cal. App. 338, 99 P. 383. the court held that it was not error to refuse to instruct on the defense of alibi, where the accused’s proof did not show that he could not have been at the place of the offense at the time shown by the prosecution.
“The defendant, himself, did not know the time that he was at the various places during the day alleged offense occurred. All of the evidence showed that he was present in such close proximity to the place where the offense is alleged to have been committed that we think the court’s ruling thereon was proper.”

As above stated, in the instant case the question of an alibi was presented to the jury by a proper instruction, and they were permitted to consider the evidence with reference thereto, together with all of the facts and circumstances.

Defendant’s contention that his witnesses alone are correct in their statements as to “time,” and that the testimony of the witnesses for the state are incorrect, cannot be upheld in view of the verdict of the jury returned in this case. It is just as reasonable for the jury to have believed that defendant left the Edmond well some time before 11:3G as to have believed that the state’s Avitnesses a?ere mistaken as to the time they saw the defendant at the filling station in Chandler. It has always been the rule of this court that the verdict of the jury will not be set aside where there is evidence to support it, and certainly there is substantial evidence to support it in this case.

Counsel for defendant in brief, discussing the question of the insufficiency of the evidence to sustain the judgment, presents a question of the identification of the defendant by the witness Helen Grindstaff.

A number of witnesses were presented by defendant who made a test of the lights on defendant’s car at the time of the trial, and they testified that in their judgment it avouM have been impossible for a person to have identified one they did not knoAV. That the lights on the dashboard of the car reflected downward, and would not re-ATeal the face of the driver of the car. These tests were made in a garage Avhere defendant’s automobile was stored, and after a battery had been placed therein. The state contends that these tests were not made under the same conditions that existed on the highway on the night of August 17, 1941.

The defendant also contended that Helen Grindstaff did not identify the defendant until the trial of this case, and that she had made statements immediately following the killing that she could not identify the party in whose ear she and Billie Grayson entered. This contention is based upon the testimony of two witnesses offered by the defendant, Bette Dean Boggs and Margaret Ealdn, and on the testimony of the witness Helen Grindstaff at the preliminary hearing of defendant.

Bette Dean Boggs testified that on August 17, 1941, she was employed by a Chandler newspaper as a reporter. That on the 18th day of August, 1941, she had occasion as such reporter to interview Helen Grindstaff at her home with reference to the killing of Billie Grayson, and especially as to whether she could identify the party in whose car she and Billie Grayson entered. She was asked if Helen Grindstaff did not make this statement:

“I was scared to death, just too scared to tell what he looked like. I’d rather not try to describe him — I might be wrong and get some man into trouble. I would-n’t even known his voice if I heard it.”

Her answer to that question was “yes.”

Margaret Ealdn, who was also connected with the same Chandler paper, testified that she was present when the above interview was had, and corroborated the testimony of Miss Boggs. She also testified that she asked Helen several questions, and that she said she had never seen the party before, that she didn’t know how old he was, or whether he was lame or small build, and did not know whether he had a hat, and that she could not tell the color of the suit of clothes he was wearing.

It may be here stated that the identification of the defendant by the witness Helen G-rindstaff was a question of fact for the jury to determine, under all the facts and circumstances. It must be borne in mind that the interview of the news reporters was on the day following the homicide. This witness could have been, and no doubt was, very much upset upon learning of the death of Billie Grayson, and under the circumstances of having-been with her just prior to her death. The identification of the defendant was made by her at the trial, and after defendant’s return from Ohio. No doubt the jury took this into consideration, together Avith the other facts and circumstances in the case. She did describe quite minutely the automobile which she and Billie Grayson entered, and when defendant was arrested in Ohio his automobile was very much like the one she described. This was also a question of fact for the jury to consider, together with all the evidence and circumstances in the case.

As to defendant’s second contention, that the court erred in failing to submit to the jury instructions upon manslaughter in the first and second degrees, and assault and battery, the record reveals that when the case closed, counsel for defendant requested the court to so instruct the jury. No written instruction was prepared and presented. The court refused to give such instructions, and. the defendant excepted.

It is Avell settled by the decisions of this court that Avhere a defendant is charged with the crime of murder, it is the duty of the trial court to instruct on the law of manslaughter in the first or second degree, if there is any evidence that the alleged crime might have been committed under circumstances that would reduce the crime from murder to manslaughter. Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595.

But the trial court is vested with a discretion, which is subject to review upon appeal, and this judgment will not be disturbed unless the record presents a clear case of abuse of discretion. As stated in the case of Newby v. State, 17 Okla. Cr. 291, 188 P. 124:

“The trial court is not required, however, to delve into the realms of conjecture or speculation in order to instruct upon some chimerical theory of the law of the case not reasonably supported by the evidence.” See also Williams v. State, 56 Okla. Cr. 147, 35 P. 2d 282; and Williams v. State, 12 Okla. Cr. 39, 151 P. 900.

Here the theory of the defendant was that the manslaughter instructions should have been given by reason of the fact that the testimony revealed that in attempting to secure a statement from defendant, the sheriff of Lincoln county told him that if he killed the deceased while in a fight, it would go easier with him; and the further evidence of the witnesses Anderson and Lowery that defendant told them he picked the girls up, but did not kill Billie Grayson.

We do not see that this testimony required the giving of manslaughter instructions. The defendant’s main defense was that he did not pick the deceased up, and that he did not kill her, and he so testified. The evidence of the state was that the deceased had been murdered, and that her body had thereafter been disrobed and placed in the cemetery. We think the trial court was justified under the circumstances and evidence in submitting only the question of murder, and not the issue of manslaughter-in the first or second degree, or of assault and battery.

Tlie third assignment of error is that the court limited the number of witnesses offered by defendant to prove his good character and reputation. This was a question within the sound discretion of the trial court. This discretion is subject to review by the appellate court, and is governed by the facts and circumstances of each individual case. The trial court should exercise this discretion with caution, and should be governed by the importance of the testimony as applied to the facts of the case under consideration. 23 C. J. S., Criminal Law, p. 429 § 1042; 16 C. J. p 859.

In the case of Durant v. State, 32 Okla. Cr. 288, 240 P. 1088, it was said:

“The number of witnesses that may be heard on behalf of a party to establish a point or proposition, particularly on matters collateral to the main issue, is within the reasonable discretion of the trial court.
“In a homicide case, where the state, by offering no evidence to refute, virtually concedes that the deceased was a dangerous and turbulent character, it is not reversible error for the trial court to limit the defendant to four witnesses to prove such character.”

In the instant case the court permitted the introduction of ten witnesses to testify to the good character and reputation of the defendant. The state did not offer any testimony attacking his character and reputation. Under these circumstances it occurs to us that the discretion of the court was not abused, and that he was very considerate in permitting the number of witnesses to testify upon this issue. Cope v. State, 23 Okla. Cr. 161, 213 P. 753.

The fourth assignment of error is that the court erred in not sustaining defendant’s objection to the argument of the county attorney.

This assignment has reference to a statement made by the county attorney in his closing argument, as follows: •‘Why did he run the risk of prosecution by running off with a mortgaged automobile?” And a statement by the Assistant Attorney General, as follows: “In going out to this Avell, part of the road was through Oklahoma City.”

While the statement of the county attorney might be objectionable, there was not such error as would justify a reversal of this case. One of the witnesses who testified for the defendant stated that his reason for checking the car after it was returned to Oklahoma, was to see if his security was in good shape. The statement of the Assistant Attorney General was a legitimate deduction from the evidence offered in the case.

By reason of the importance of this case, we have given it careful consideration. It is our conclusion that the defendant had a fair and impartial trial. His defense was well presented, and the issues of fact passed upon by a fair and impartial jury. As an appellate court, we should not set aside the judgment and sentence unless there was insufficient evidence to sustain the same. We do not find that to be the case. The assessment of life imprisonment is a severe penalty, but the crime here committed was a brutal one, and the one who perpetrated it deserves the most severe punishment. A jury has decided that the defendant was guilty under the testimony submitted. It is our duty under the law to uphold this verdict, when the evidence supports it.

It is therefore ordered that the judgment of the district court of Lincoln county be and the same is affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    THOMAS CHARLIE CHANDLER v. STATE.
    No. A-10181.
    March 1, 1944.
    (146 P. 2d 598.)

      Laynie-W. Harrod, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Thomas Charlie Chandler, was charged in the district court of Oklahoma county, with the crime of manslaughter in the first degree, was tried and convicted of manslaughter in the second degree as an included offense, and his punishment assessed at confinement in the State Penitentiary for a term of two years; and he has appealed.

For a proper consideration of this case, it is necessary to first detail a concise statement of the facts.

The charging part of the information was as follows:

“On the 9th day of February, A. D. 1941, in Oklahoma County, State of Oklahoma, Thomas Charlie Chandler * * * did then and there wilfully, unlawfully and feloniously commit the crime of manslaughter in the first degree, that is to say, that said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, negligently, wrongfully, and feloniously, drive a certain automobile, to-wit: a 1941 Ford Tudor sedan automobile, bearing Oklahoma 1940 license number 1-63404, upon a public highway, to-wit: On north and south county highway, one mile east of Arcadia, in said county and state, and did then and there drive said above described automobile north upon said highway in a culpable and negligent manner, and at a high and dangerous rate of speed, and at a speed that was greater than was reasonable and proper under the circumstances, and conditions, then and there existing on to said highway, and without due regard to the traffic, surface and width of the said highway, and said defendant did then and there drive as above described at a speed that was greater than would permit him to bring said motor vehicle to a stop within the assured clear distance ahead, and while driving as above described, the said defendant did drive said 1941 Ford Tudor Sedan automobile into and against a certain 1935 Buick sedan automobile Oklahoma 1940 license 1-16724, which vehicle was then and there being driven south on said highway by George Washington Wilson, and in which said automobile one Mollie Cecil Wilson was then and there a passenger, with such force and in such manner as to inflict on the head and body of the said Mollie Cecil Wilson certain mortal wounds from which wounds so inflicted the said Mollie Cecil Wilson did die on the 9th day of February, 1941;” etc.

Under this charge defendant was prosecuted for manslaughter, and convicted of manslaughter in the second degree, as above stated. The statute, 47 O. S. A. 1941, § 92, upon which the contention of the state is based, is as follows:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *
“Any person violating the provisions of this section shall be guilty of a misdemeanor and shall, upon conviction, be fined not less than ten dollars ($10.00) and not more than one Hundred dollars ($100.00), or imprisoned in the county jail for not less than ten (10) days nor more than thirty (30) days, or by both such fine and imprisonment. Provided, that it shall be unlawful for an arresting officer to participate in or receive any portion of the fines or fees collected from any persons under this section.”

The facts, about which there is very little conflict, were: The defendant, Thomas Charlie Chandler, lived a few miles north of Arcadia, in Oklahoma county. He came to Oklahoma City on the afternoon of February 9, 1941, in a 1941 Ford automobile, remained a short while, and with his brother, Quinlan O. Chandler, a cousin, Annie Belle Lee, and her husbond, Henry Lee, and Otis Long, started to return to his home. He was driving his car, and they drove to Arcadia, on U. S. paved Highway No. 66, and turned north on a dirt road, and had gone about a mile and a quarter Avhen the collision occurred, Avhich resulted in the deatii of Henry Lee and Otis Long, and of Mollie Cecil Wilson, Avho avus riding in the front seat of the Buick car driven by her husband, George Washington Wilson. Annie Ogles Avas riding in the back seat of the Wilson car.

This tragedy Avas the result of a head-on collision betAveen the Ford and the Buick cars, just on the north side of a hill Avhich is designated as hill No. 2 in the pictures introduced in evidence and attached to the case-made, and about 75 or 100 feet from the top of the hill. All of the parties involved Avere colored. The people in the Wilson car had been to church and Avere returning to Oklahoma City. The Ford car, driven by the defendant, Avas going north, and the Buick, driven by Wilson, Avas going south. The uncontradicted evidence of both the state and the defendant is that the collision occurred on the east side of the center of the highAvay; that both cars Avere on the east side of the center at the time of and after the collision, and that the Ford Avas never across the center of the higkAvay. The state admitted that the Buick car Avas on the Avrong side of the road, as provided by Tit. 69 O. S. A. 1941, § 583, Avhich is as folloAvs:

“Vehicles in meeting each other shall keep to the right of the center of the road. ...”

The evidence disclosed that the road at the point of the collision Avas 38 feet Avide; that the main travelled part of the road Avas on the east side of the center; that the Avest side was someAvhat rough but was passable and cars drove on that side and had driven on that side on the day of the accident; and that it would have been impossible for defendant’s car to have passed to the right, or east of the Buick, there being an inclining bank about six feet high, at an angle of about 45 degrees. The record further reveals that the road was graded by the highway maintenance crew the morning following the accident, and prior to the time the pictures introduced were taken, but witnesses testified to the condition of the road prior to the time it was graded. The collision occurred between 6:10 and 8 :20 in the afternoon.

Briefs have been filed by the defendant and the state. Tixe brief of defendant cites a few cases, which do not bear on the main question involved, and the brief of the state does 'not cite a single decision.

We find here a question of first import in this court, and one that has not been before the Supreme Court of this state — a question that is very important to the citizens of the state. We have examined a number of text books upon the law of automobiles, and have ready many cases from other states. There are abundant authorities which pass upon questions very similar to the one here involved!

The first contention of the defendant is with reference to the construction to be placed upon the statute above quoted. His contention is that this statute only has reference to objects which are stationary, or where motor-driven vehicles are going in the same direction, and that it has no application where they are moving in opposite directions, as in the instant case.

We have been unable to find any case from this court, or from the Supreme Court of this state, involving the same or similar facts. Nor have we been able to find any decision from any court construing a statute of similar import. There is no question in my mind but that at the time of the enactment of this statute, the Legislature liad principally in mind stationary objects, and the collision of cars going in the same direction; but we cannot but come to the conclusion that it also applies to motor vehicles driven in opposite directions. Certainly if one saw a car coming toward him it would be his duty to exercise such reasonable diligence in the handling of his car as to avoid collision with an oncoming car. By this statement we do not refer to the facts as they exist in the instant case, and which we shall hereinafter discuss more fully.

This statute does not provide for a definite speed limit, as do many statutes. But'it has limitations which are stronger than if it had a definite speed limit. Under its terms, what might be a safe speed limit, under a certain set of circumstances, would not be safe under another or different set of circumstances. This might be illustrated by the fact that where one is driving on the crowded streets of a city where there are intersecting streets every feAV hundred feet, it is certainly more dangerous than driving upon a public highway where but feAV cars are passed, and few people are walking. The same may be said to be true when passing a public park, or a public school where children are constantly playing and frequently passing the intersections, also where one is passing a number of cars on the public highway, even though they are coming in opposite directions. Also, under the terms of this statute, a rate of speed in the daytime, or on a bright clear day, might not be considered unreasonable, but the same rate of speed in the night-time, or on a Avet, slick road, or on a dark and cloudy day, might be considered unreasonable. And as expressed in the very terms of the statute itself, one should have “due regard to the traffic, surface and width of the highway and of any other conditions then existing.”

Certainly if one saw a number of cars coming from the opposite direction be would not have the right to drive at a rate of speed under the terms of this statute as if the string of cars were not coming toward him. Certainly his rate of speed should be governed by the conditions of the “traffic, surface and width of the highway and of any other conditions then existing,” whether those vehicles are being driven in the same or opposite direction from that in which he is traveling. ' •

In other words, under this statute, a party driving a motor vehicle in this state is charged with the responsibility of taking into consideration those conditions named in the statute, and of at all times having the motor vehicle under such control as the facts and circumstances warrant. To our mind this statute is much more exacting than if it set a definite speed limit. We have, therefore, come to the conclusion that the above statute should not be so construed that it could not under certain circumstances be applied to cars moving in opposite directions.

The principal contention of the state is that notwithstanding the fact that the car in which Mollie Cecil Wilson was riding was on the wrong side of the road, the evidence also showed that defendant was driving at an excessive rate of speed, in contravention of the statute above quoted, and that he was, therefore, guilty of a violation of this statute, and his conviction should be upheld.

This statute makes the violation thereof a misdemeanor. The statute on manslaughter in the first degree, 21 O. S. A. 1941 § 711, provides that one who kills a human being while committing a misdemeanor shall be guilty of manslaughter in the first degree. The jury convicted the defendant of manslaughter in the second degree, in accordance with the instructions of the court, as an included offense. This statute is 21 O. S. A. 1941 § 716, and is as follows:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

Defendant requested six instructions, five of which were refused by the court, but the instructions given contained the principles of law announced in the special instructions. We shall hereafter refer to the instructions in discussing the questions involved.

This court has often had before it the construction of the statute involving manslaughter in the second degree. We have often defined what is meant by the term “culpable negligence,” or “criminal negligence.” Nail v. State, 33 Okla. Cr. 100, 242 P. 270; Clark v. State, 27 Okla. Cr. 11, 224 P. 738; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789; Freeman v. State, 69 Okla. Cr. 164, 165, 101 P. 2d 653; Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; Mayse v. Stated 38 Okla. Cr. 144, 259 P. 277; Herndon v. State, 38 Okla. Cr. 338, 261 P. 378; Smith v. State, 46 Okla. Cr. 160, 287 P. 1103. In many of these cases the evidence revealed that the defendant was under the influence of intoxicating liquor.

And we have drawn a distinction between the terms of the statute as it applies to criminal liability, and to civil liability, Nail v. State, supra. See, also, Huddy Encyc. of Automobile Law, vol. 9-10, p. 78.

It is generally recognized that in order to commit one a criminal, there should be a higher degree of negligence than is required to establish civil liability; the rule in civil liability being based upon the “preponderance of the evidence,” while in criminal cases one must be convicted “beyond a- reasonable doubt.” State v. Salterfield, 198 N. C. 682, 153 S. E. 155.

Culpable or criminal negligence has been defined in the Oklahoma cases above cited as follows:

“The omission to do something which a reasonable or pmident person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.”

In civil liability, we also have the doctrine of the “last clear chance,” which may be taken into consideration in criminal cases in determining the guilt of the defendant. This rule, however, is not involved in the instant case, because the evidence here reveals that the collision occurred in such a short space of time after the danger was discovered that the rule could not apply. Burlie v. Stephens, 113 Wash. 182, 193 P. 684.

But the question of “proximate cause,” which has application in both civil and criminal liability, plays a most important part in the case at bar, by reason of the facts. Here we find the undisputed evidence of both the state and the defendant that the collision occurred on the east side of the center of the highway; that the car of the defendant was traveling north on the east and right side; that the car in which the deceased Mollie Cecil Wilson was riding was traveling south, and also on the east, which was the wrong side of the highway. The collision occurred just after defendant’s car had topped the brow of the hill, and a distance of not to exceed 100 feet from the crest of the hill. The driver of the Buick car testified that his first observation of defendant’s car was the dust just at the top of the hill, and defendant testified it was at this point that he observed the Buick. It was impossible to pass to the right of the Buick, by reason of the condition of the road. That acting in an emergency, the defendant attempted to turn to the left, and Wilson also testified that, acting in an emergency, he attempted to turn to the right and the cars collided head-on.

We are aware of the well recognized rule of law in civil cases that the question of proximate cause is generally a question for the jury. This rule of law also has application in criminal cases. But there must be evidence of its application. In criminal cases, it has been universally held that speed alone, even though it be in contravention of a statute, may not cause one to be guilty of a crime.

It has been universally held that a person may be found guilty of criminal homicide arising from the negligent operation of an automobile or its use for an unlawful purpose, or in violation of law, but it is uniformly held that it must be shown that such negligent operation, or use for an unlawful purpose or in violation of law, was the direct and proximate cause of the death: that is, that there was a causal connection between the act and the death. 99 A. L. R. 772; Dunville v. State, 188 Ind. 373, 123 N. E. 689; People v. Barnes, 182 Mich 179, 148 N. W. 400; Shaw v. Wilcox (Mo. App.) 224 S. W. 58; State v. McIvor, 1 W. W. Harr. 123, 31 Del. 123, 111 A. 616; State v. Long, 7 Boyce, Del., 397, 108 A. 36; People v. Black, 111 Cal. App. 90, 295 P. 87; State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918, E 1137; Jackson v. State, 101 Ohio St. 152, 127 N. E. 870; Norman v. State, 121 Tex. Cr. R. 433, 52 S. W. 2d 1051: O’Mally v. Eagan, 43 Wyo. 233, 2 P. 2d 1063, 77 A. L. R. 582; Hiller v. State, 164 Tenn. 388, 50 S. W. 2d 225.

There can be no doubt, from the undisputed evidence in this case, that this collision would have occurred regardless of the rate of speed of defendant’s car, taking into consideration the rate of speed of the other car, and the distance between the cars at the time the danger was discovered.

When the state closed its case, the only evidence offered with reference to the speed of defendant’s car had been that of the husband of the deceased Mollie Cecil Wilson. On direct examination he at first testified that he did not know the speed; on being further questioned he stated that he could not see the speedometer of defendant’s car; and he then testified that it was coming very fast, and stated in his opinion 60 or 70 miles per hour. Taking into consideration the position of the witness, this evidence is very unreliable, and can at best be only a guess. He estimated that his car was traveling about 25 miles per hour.

At the close of the state’s evidence, a demurrer was offered, which was overruled and exception saved.

Defendant testified, as did two of the occupants of his car and the witness Hardimon, that he was traveling from 30 to 40 miles per hour. On rebuttal the state offered the evidence of A. F. Fleming, who testified that he was traveling south and met a car in the depression south of where the collision occurred, a distance of about a quarter of a mile, and that he estimated the speed of the car at 60 miles an hour. While he did not identify it as defendant’s car, this evidence was admissible as a circumstance for the consideration of the jury. And it is the testimony of this witness that is principally relied upon by the state to uphold the conviction in this case.

Glenn Cochran, a highway patrolman, also testified in rebuttal that after the collision he examined the cars, and the condition of the road, and testified as an expert that from the condition of both cars, he estimated that the car of defendant was going 65 to 70 miles an hour at the time of the collision, and that the car in which deceased was traveling was going “at a moderate rate of speed.” This evidence may have been admissible, and especially in a civil case, but it is of little value in a criminal case, and especially where it alone is depended upon to find one guilty beyond a reasonable doubt.

With reference to the testimony of the witness Fleming, his testimony was that he passed the car of defendant at the bottom of the hill south and a distance of about a quarter of a mile from where the collision occurred. One could almost take judicial knowledge that in this distance the speed of a car could be changed, and that one passing over the brow of the hill would naturally slacken his speed.

One Wiggins Hardimon testified for the defendant that he was going south and passed the car of the defendant just before he approached the brow of the hill. The state seemed to contend that the witness Hardimon was not present, as testified, and the defendant seemed to contend that the witness Fleming was not present. While this was a conflict in the evidence and these conflicts are often left to the jury, from the conclusion which we have reached, this evidence is of little value. As stated above, this collision would have occurred under the facts and circumstances regardless of the speed of the cars. The question of the proximate cause is the question at issue, and from a careful examination of the record and the facts and circumstances and the law applicable thereto, we have come to the conclusion that the proximate cause of this collision was the fact that the Buick car, driven by the husband of the deceased, was on the east side of the highway, which was the wrong side of the road, when he was traveling south. That under the facts and the law in this case, as announced by the decisions above cited, it was the duty of the court to have sustained the demurrer to the evidence, and instructed the jury to find the defendant not guilty. This for the reason that the evidence was insufficient to show that this defendant was guilty of Culpable or criminal negligence to that degree which would justify his conviction under the statutes of this state. To so hold would endanger the liberty of every citizen of this state who was driving a motor vehicle as a reasonable and pradent person should under the terms of the statutes above quoted.

We have called attention to the importance of the decision in the case to the citizenship of Oklahoma, with the thousands upon thousands of cars traveling daily upon the highways of the state. The facts as they exist here could easily confront any citizen who drives a car at almost any time. Men who never contemplated that they would ever be charged and tried for the commission of a felony constantly face this manslaughter statute. It is a hard statute, but it must be enforced as is any other criminal statute.

The question of being under the influence of intoxicating liquor does not enter this case. It has been consistently held that where one is guilty of driving a motor vehicle while under the influence of intoxicating liquor, he may be found guilty, not only of manslaughter, but of murder. Many of the Oklahoma cases heretofore cited involved the question of where one was driving while Tinder the influence of intoxicating liquor, or where the evidence revealed that the driver of the motor vehicle was guilty of culpable or criminal negligence which justified this court in affirming the judgment and sentence of the trial court. But tlie evidence in the instant case does not justify this action.

As stated above, we have examined many cases and text books bearing upon the issue here involved. It has been very interesting and instructive. They announce the rules which we have heretofore stated. We desire to call attention to a few of the leading cases heretofore cited.

In the case of O’Mally v. Eagan, supra, the facts are very similar to the facts in the case before the court. That was a civil action for damages, instituted by Carma O’Mally against Bon Eagan and Phillip ¡3. Mahoney, the drivers of the two cars involved. The case was tried against Ma-honey alone, and the jury returned a verdict for the plaintiff for $7,700. The court set this verdict aside, and on motion entered judgment for the defendant, and plaintiff appealed. The accident was the result of a head-on collision between a Buick and a Chevrolet automobile. The plaintiff, a passenger in the Chevrolet, was injured, and another passenger in that car was killed. The Buick car, driven by the defendant Mahoney, was traveling east on the south and right side of the road; and the Chevrolet, driven by Eagan, and in which the plaintiff was riding, Avas traveling west, but also on the south, or the wrong side, of the road. The condition of the road Avas similar to that in the instant case, there being a deep ditch and a fence which prevented the Buick from turning to the right to avoid the collision AArith the other car. There Avas one material fact in that case that did not exist in the case at bar. The tAvo cars were approaching a bridge, and each driver saAV the other Avhen without about 150 feet of the bridge. They were traveling at about the same rate of speed, and Avould have reached the bridge at about the same time. The defendant testified that Avhen he dis-cowered their peril, he was within 50 feet of the Chevrolet. He then applied his brakes, and turned his car to the left “immediately before the accident to try to avoid him.” [43 Wyo. 233, 2 P. 2d 1005, 77 A. L. R. 582.] This was exactly the action of the defendant in the instant case; and there are many other similar facts in the two cases. The court made an exhaustive research of the authorities, and affirmed the action of the lower court. For the sake of brevity, Ave will not quote the entire case, but desire to give some excerpts from the opinion, as íoIIoavs :

“The main question in this case is as to whether or not the liability of the defendant was for the jury, and whether the court, accordingly, erred in entering a judgment notwithstanding the fact that a verdict was found for the plaintiff. Before she can recover in this case, she is compelled to sIioav not only that the defendant Mahoney Avas negligent, but also that such negligence was the proximate cause of the injury. 45 C. J. 1168. It is claimed herein that the defendant was negligent in driving his car at an unlawful speed, in not having it under proper control, in not driving it in such careful manner as to avrnid the collision, and in not stopping. Section 3, ch. 158, Sess. Laws 1925, provides that no person shall operate a motor vehicle on any public highway at a speed greater than is reasonable; that he shall at all times have it under absolute control; and that a speed in excess of 35 miles per hour shall be prima facie evidence of failure to operate the vehicle at a speed that is reasonable and proper. We may, for the purpose of this case, admit that these provisions were Aiolated, and that the defendant traveled in fact at the rate of 40 to 45 miles . . . per hour, or more. But Ave should add here that upon such assumption, in view of the fact that both cars involved herein arrived at the bridge about the same time, we must also assume that Eagan’s car traveled at the same rate. Eagan’s negligence, of course, could not excuse the defendant’s, in so far as liability to the plaintiff is concerned. Hester v. Coliseum Motor Company, 41 Wyo. 345, 285 P. 781. But such negligence lias a definite bearing on the question as to whether or not the accident conld have been avoided, if the defendant had not been negligent in his speed, or — which comes to practically the same thing herein — in not haying his car under control.
“Conceding, as mentioned, the defendant’s negligence as above stated, it must be determined as to whether or not it was the proximate canse of the injury, or one of the proximate causes thereof. Ordinarily that question is for the jury. Hines v. Sweeney, 28 Wyo. 57, 201 P. 165, 1018; 45 C. J. 1168. That is true where different inferences may fairly be drawn even though the evidence is undisputed. But it is a question for the court where but one inference and conclusion can be drawn from the evidence; and whether only one inference may be . . . must necessarily ultimately rest with the court, for otherwise the jury would at all times have the right to arbitrarily determine the point. The proximate cause need not, of course, be shown by direct testimony; it may be determined from the circumstances in the case; but in view of the fact that the burden of proof rests upon the plaintiff, such circumstances must appear from the evidence. In the case at bar there is no direct testimony; if defendant’s negligence was in fact the proximate cause of the injury, it must be gathered from the circumstances shown herein. Now, speed or any other alleged negligent act of the defendant cannot, of course, be said to have been the proximate cause, unless the accident could have been avoided in the absence thereof. And counsel for the plaintiff ought to be able to point out, by analyzing the circumstances shown by the evidence, how the defendant would have been able to have avoided the collision, had he been in the exercise of reasonable care. But counsel have wholly failed to do so, though they have repeatedly asserted that the jury might have rightly found that the defendant’s negligence contributed to the injury in this case. So we shall proceed, and ourselves, by an analysis of the facts, attempt to determine the truth. The presumption is that the action of the trial court was right. This presumption is strengthened in the case at bar by reason of tlie fact that the map used at the trial in connection with vital testimony was not introduced in evidence, and the trial court may, accordingly, have had a better view of the situation than we could have. And we must, in order to reverse its action, be able to point out how the collision might not, in the minds of reasonable men, have taken place, if the defendant had been in the exercise of care.
“Let us first consider the question of speed in the abstract. We pointed out in Christensen v. McCann, 41 Wyo. 101, 109, 282 P. 1061, that excessive speed does not lead to liability, unless it was the proximate cause of the injury. And that is the universal rule. Blashfield [Cyclopedia] of Automobile Law [vol.] 2, [§ 16], p. 1221. In many, perhaps the majority of, accidents, unlawful speed is, or may reasonably be said to be, a contributing cause, but that is by no means true in all. The point has been discussed a number of times in connection with cases where one of the parties, as Eagan did in this case, traveled on the wrong side of the road. That was true in Stobie v. Sullivan, 118 Me. 483. 105 A. 714. The court said in part: ‘The vital point of inquiry, however, is whether the collision took place on the north side of the road, which was Stobie’s proper side as he was traveling westward from Hampden towards Waterville, or on the south side, which was Sullivan’s proper side as he was going northerly toward Bangor. If each had been on his own side, no trouble would have occurred, as the highway at that point was a state road, straight, wide, smooth, and well wrought. It was not the speed of either party that was the proximate cause of the accident, but the position of one car or the other on that side of the road where it did not belong. Bragdon v. Kellogg, 118 Me. 42, 105 A. 433, 6 A. L. R. 669.’ . . .
“In Burlie v. Stephens, 113 Wash. 182, 193 P. 684, 686, while unlike in many of its facts to the case at bar, illustrates this principle, where the court said in part: ‘But- if it should be conceded that at the time of the collision the automobile was traveling at the rate of 20 miles an hour, and that such speed was in violation of the state laws and city ordinance, yet there is not a word of testimony showing, or tending to show, that the speed of the car had anything to do with the collision. The record shows that the collision would have occurred, whether the automobile was traveling at the rate of 10 miles or of 30 miles an hour. There was no danger at all, regardless of the speed of the car, until the boy suddenly turned in front of it at such close proximity to it as that the collision was inevitable. The violation of a speed ordinance or [the] statute is not, in itself, sufficient to make the driver of the automobile liable in damages in the event of a collision. There must be something more; it must appear that such violation was the proximate cause of the injury. There is absolutely nothing in this case to show that the speed of the car was the proximate cause of the injury. We feel confident, therefore, that the court was correct in taking away from the jury the question of the speed of the automobile.’ . . .
“Speed, considered by itself, cannot, accordingly, be said to have necessarily contributed to the accident in question. That is clear when we bear in mind that if the defendant had traveled at a lawful rate of speed, but had started a few minutes earlier, he would have been at the place of the accident, just the same. The speed, therefore, considered by itself, may have been merely a condition of the accident, and remote in the chain of causation, from which no liability arose. Lemos v. Madden, 28 Wyo. 1, 17, 200 P. 791. Something more must’ appear in order that it may be said to have contributed to the accident, as, for instance, the duty to stop, the inability to do so by reason of the excessive speed, and that, had defendant stopped, the accident could have been avoided. It is, in fact, argued by counsel for the plaintiff that these factors were present in the case at bar, and in that connection it is further argued that it was for the jury to say as to whether or not the defendant should have sooner observed that the Eagan ear would not turn out to its right side. Now attention need hardly be called to the law of the road, as universally observed in the United States, and as expressed in section 4, c. 158, Sess. Laws of 1925, that ‘whenever any person, traveling with any vehicle or conveyance on any road or public highway in this state, shall meet another vehicle or conveyance traveling in the opposite direction it shall be the duty of the driver of such vehicle or conveyance to turn promptly to the right of the center of the traveled road. . . until such vehicle or conveyance has passed.-’
“It is said in Berry on Automobiles (5th Ed.) § 252, that: ‘One who violates the law of the road by driving on the wrong side assumes the risk of such experiment and is required to use greater care than if he had kept to the right side of the road. If a collision takes place under such circumstances, the presumption is against the party who was on the wrong side.’
“And in Blashfield [Cyclopedia] of Automobile Law [vol ] 1 [§ 231, p. 41*1, the author says: ‘A motorist has a right to presume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such an assumption in determining his own manner of using the road; and a driver, therefore, proceeding on the right side of the traveled way, may assume that the driver of a vehicle approaching on the same side, or on his left side, will yield half the way, or will turn out in time to avoid a collision, and not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road, on which he is lawfully driving, until he sees or ought to see, that such assumption is unwarranted.’
“According to this authority, therefore, the time may come when a person traveling on the right side of the road ought to observe that the person coming from an opposite direction will not obey the law. Nevertheless, as was said in Shaw v. Wilcox, Mo. App., 224 S. W. 58, 59, ‘a condition of discoverable peril must have existed.’ The rule is stated in Huddy, Encyc. of Automobile Law (9th Ed.) vol. 304, § 116 thus: ‘A driver on the right side of the road has a right to assume that a vehicle approaching on tiie wrong side will turn to the proper side in time to avoid a collision, unless it is obvious that the driver of the latter vehicle does not intend to turn, or is unconscious of the danger which is imminent.’
“In Albright v. Joplin Oil Co., 206 Mo. App. 412, 229 S. W. 829, 830, the court said: 'We are of the opinion that the driver of the truck had a perfect right to continue down the street, the deceased showing no evidence of being oblivious to the danger of remaining on the wrong side, and that he had every reason to believe that, as they were approaching each other, they could see each other, and that lie would further have a right to rely on the fact that the deceased, being on the wrong side of the street, and seeing the truck approach, would use reasonable exertions to turn out of the way, and exercise that degree of care for himself which any ordinarily prudent person is expected to use. The fact, therefore, of itself that the deceased was in the street, on the wrong side thereof, when there was no appearance of his being oblivious to the oncoming truck, would not place a duty on the driver of the truck to slacken his speed or change his course, so long as he was on the light side of the street, where he belonged, and within the law and the traffic rules, until he reached a place where it was apparent to the driver of the automobile that the deceased was unconscious of his oncoming danger, or, although duly alive to the danger, he was unable to get to a place of safety.’ .
“And in Cook v. Standard Oil Co., 15 Ala. App. 448, 73 So. 763, the court said on the point here discussed: 'The plaintiff had the right to assume that the driver of the wagon would rein his team to the right-hand side of the road, so as to permit the plaintiff’s vehicle to pass, until it became obvious that the driver was making no effort to do so or the danger of a collision was imminent.’
“In the case at bar Eagan was traveling on the wrong side of the road. It was night. Defendant had his lights burning. Eagan must have seen him coming, unless he was out of Ms senses, which he probably was. But defendant did not and could not know it. So far as the record shows, there was nothing whatever which would indicate to defendant that Eagan would not' obey the law; nothing that was calculated to overcome the presumption mentioned. To hold that under these circumstances the jury had a right to say that defendant should have known sooner than he did that Eagan would not turn out would be contrary to the general rule that the jury’s decision must be based upon evidence, and would leave them an arbitrary discretion which is nowhere warranted in the law. To give them such power would, we fear, so unsettle the Taw of the road,’ as to lead to dangerous consequences, and bewilder all travelers in automobiles in knowing when or when not to rely on the fact that the person coming from the opposite direction will obey the law. We think, accordingly, that defendant cannot be held to have been negligent in no sooner determining that Eagan would not turn out. That- was, when he was about 50 to 58 feet distant, or, as stated by him in another place, just an instant before the collision. The same reasoning applies to defendant’s duty to stop. He could not be held to have been negligent until he saw or could have seen that Eagan would not obey the law. That, we think, is clear. Some of the cases go even farther than that. In Shaw v. Wilcox, supra, the defendant Avas on the wrong side of the road. The collision occurred when the plaintiff, thinking that the defendant Avould not turn to his proper side, suddenly veered to the left, and the defendant at the same time turned to his right. The court said among other things: ‘Plaintiff was on the proper side of the street, and, while he could not blindly and heedlessly drive into a car, even if improperly using that side of the street, yet he had a right to expect, and' to act on the theory, that defendant Avould turn to the right and go to his proper side in passing. ... As we have stated, plaintiff was on the proper side of the street, and had a right to expect defendant to turn to his right and clear plaintiff’s way. The duty of the plaintiff to stop or take such other precaution only arose when by due care plaintiff discovered that defendant could not- or would not himself turn to the right and clear plaintiffs way. A condition of discoverable peril must have existed. Indeed, we doubt if a duty to stop on plaintiff’s part ever arose in this case, as such duty only arises when it becomes apparent to plaintiff that he might not be able to avoid a collision by himself turning his car to the left and going around the defendant.”
“The accident in the case of Goodson v. [Schuster’s Wholesale] Produce Co., 10 La. App. 486, 120 So. 689, 691, happened in a similar manner, and the court said: ‘In the case at bar, defendant’s truck was on the wrong side. On meeting plaintiff’s car, the driver failed to turn in time to avert the collision, and no reason has been or can be suggested Avhy lie should not have done so. He Avas therefore negligent, and that negligence was the efficient, prime cause of the collision and resulting injury. ... It may be argued that plaintiff, having seen the truck at some distance approaching on the wrong side of the road, could and should have turned before he did and thereby averted the collision, or that he should have stopped his automobile on his side of the road. But, as already stated, the appearances Avere such as to cause a reasonably prudent man to believe that if he stopped the truck avouM run over him. As to Avhether he should have turned to the left sooner than he did, it must be said that he had a right to assume that the driver would observe the Iuav and turn to his side of the road.’
“The accident in the case of Kennedy v. Opdenweyer, 11 La.App. 532, 121 So. 636, 639, 123 So. 906, also happened in a similar manner; the plaintiff’s car, in that case, being on the Avrong side of the road. The court, holding that defendant Avas not in any way to blame, reversed the verdict of the jury and entered one for the defendant, saying in part: ‘From the foregoing testimony, facts,- and circumstances it is therefore clear that defendant was forced by Kennedy, who Avas driving on the wrong side of the highway, to suddenly veer his sedan to his left side and to dash across the road to avoid a head-on collision. . . . The law of the road requires each to drive on his right side. Laymen all know this rule, and cannot plead ignorance of it. Defendant had therefore the right to rely on that rule in this case and to expect that Kennedy would have turned to his side of the road, and was not in duty bound to stop his car. The gross negligence was on the part of Kennedy and not on defendant who was forced by the fault of the former to veer his course to the left as before explained. * * The facts here show conclusively that, if the collision occurred on Kennedy’s side of the road, defendant was forced there to avoid a head-on collision by the gross negligence of Kennedy, and that the conduct of defendant was entirely unjustifiable and excusable under the circumstances. . . Likewise it can be said here that the swerving by defendant was brought about by Kennedy, plaintiff’s deceased husband. The defendant here was confronted with an emergency, was suddenly placed in a perilous situation, and, to avoid the impending danger, with little time to think or reflect, dashed across the road, and in which it must be held that he pursued the proper course and exercised ordinary care under the circumstances. See, also, Smith v. Interurban Transp. Co., 5 La. App. 704.”

The court then holds that the doctrine of “last clear chance’’ had no application in the facts in this case, stating:

“We have not, accordingly, any more than counsel for plaintiff, been able to discover any method by which the defendant, had he been in the exercise of reasonable care, could have avoided the accident. At least, no method is pointed out by the evidence, and the negligence of the defendant, if any, cannot, therefore, be said to have been one of the contributing — the proximate — causes of the accident. The doctrine of the last clear chance can have no application. here. When the defendant discovered the peril which he, his fellow passengers, and the occupants of the Chevrolet car were in, but a moment’s time intervened until the collision occurred. The defendant thought that there were two or three seconds. He was wrong; there was not nearly that time, less than a second intervened. The doctrine mentioned can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the discovery of the peril, or as some would hold, after the peril should have been discovered, at least in eases in which, as in the case at bar, any previous negligence of the party charged cannot be said to have contributed to the injury. Burlie v. Stephens, supra; Southern Express Co. v. Roseman, 206 Ala. 681, 91 So. 612; Bazile v. J. F. Landry & Co., supra [10 La. App. 747, 122 So. 901]; Kennedy v. Opdenweyer, supra; see 45 C. J. 880, 993. That is clearly the situation here. We cannot, of course, help but sympathize with the plaintiff, who, through no fault of hers, has been injured. But the blame, according to the evidence in this case, rests with the driver of the car in which she rode. We think the court was right in entering judgment notwithstanding the verdict of the jury, and we see no alternative but to affirm if. An order to that effect will be entered.”

This was a civil case, but the law announced therein has application to the question here involved. Certainly stronger evidence should be required to convict one beyond a reasonable doubt than by a preponderance of the evidence.

We now desire to call attention to a case decided by the Supreme Court of Tennessee, Hiller v. State, 164 Tenn 388, 50 S. W. 2d 225, 226, in which the facts are almost identical with those presented here. We quote:

“This was a conviction of involuntary manslaughter Avith a jail sentence of eleven months and tAventy-nine days. In a collision between the Chevrolet car of plaintiff in error and the Ford car of J. W. Jonakin, the infant child of Mr. Jonakin and Mrs. Jonakin, being carried in the arms of the mother at the time, met its death. The unfortunate tragic result of the collision naturally tends to render more passionate human judgment in weighing the conduct of the accused.
“It must be borne in mind as said by this court, in Copeland v. State, 154 Tenn. [7], 11, 285 S. W. 565, 566, 49 A. L. R. 605, in disposing of a charge of criminal liability in a case of automobile accident killing, that: ‘Allowance must always be made for misadventure and accident, as distinguished from culpable negligence;’ and it is uniformly held that the kind of negligence required to impose criminal liability ‘must be of a higher degree than is required to establish negligence upon a mere civil issue.’
“The collision occurred in March, 1929, on the crest of a hill on a graveled highway, 35 feet wide, some six or seven miles east of the town of Obion, about 1:30 p. m. Mr. Jonakin had left Obion shortly before in his Ford roadster Avliich he was driving. Hiller was a salesman traveling out of New Orleans, about 50 years of age, whose character for truth and veracity is shown to have been excellent. The state’s theory is that he was driving at an excessive rate of speed and on his left-hand side of the road; and that Jonakin was driving very slowly on his extreme right-hand side, where he should be. The only eye witnesses to the crash were Jonakin and his wife and Ililler, who puts his speed at about 25 miles, and who insists he approached the crest of the hill well over on his right side, and that first seeing Jonakin’s car some 30 to 35 feet distant as they came over the hill, driving on Jonakin’s left, to avoid a head-on collision, there being a ditch on his right, he swerved to the left in an effort to pass, and that at the same moment Jonakin, seeing Hiller’s car, and realizing that he (Jonakin) was on his wrong side, quickly jerked his car to his right, striking Hiller’s car about the right rear fender.
“All parties testifying agree that after the collision the cars were in respective positions supporting Hiller’s testimony. His car rested on or against an embankment on the north side of the road, which ran east and west, while Jonakin’s car was turned toward the north, headed into the rear of Hiller’s car. An apparently intelligent and disinterested Avitness named Watts, a stranger to all parties, who reached the scene shortly after the collision, prepared at the time a plat, or diagram, which is in the record, and which is approved by other witnesses, which not only clearly shows the positions of the cars after-wards, but also indicates clearly the course of both cars as they immediately approached each other. This testimony and drawing made at the time strongly sustains the testimony of Hiller that he was driving up the hill on his extreme right, the south side of the road, but that Jonakin Avas driving up the hill on 1ns left, the same south side, and that both drivers turned to the north side of the road at about the same time, resulting in the collision.
“The theory of the prosecution appears to rest on either (1) reckless negligence shown by high speed and left-hand side driving, Avhen approaching the crest of a hill, or (2) A-iolation of the 30-mile speed limit statute, repeal of which did not take effect until some 30 days later.
“The only eAÚdence that Hiller was exceeding the speed limit at the place of the meeting is that of Mr. and Mrs. Jonakin, who estimate his speed at from 50 or 60 miles an hour. Mr. Jonakin’s testimony on this point is unsatisfactory. He makes confusing and contradictory statements as to the distance at which he first saw Hiller’s car approaching. (The same may be said of the evidence of the husband of the deceased in the case at bar.) In view of the grade of the road established in the record and the extent of the hill up the opposite sides of Avhich the cars came, it is hardly possible that the occupants of either car could have seen the other until within a ATery short distance of each other. And, naturally, startled by seeing suddenly an approaching car threatening a head-on collision, anything like an accurate estimate of its speed would be impossible. Moreover, unquestionably Jonakin’s attention was directed instantly to the futile effort he made to get his car across the road. We are unable to find any satisfactory or dependable evidence that Hiller was exceeding the speed limit of 30 miles. But, if it be conceded that he was exceeding the speed limit, it can hardly be said on this record that this was the proximate cause of the collision. As already indicated, we thinlc the weight of the evidence shows that Mr. Jonakin’s car was at the time on his left-hand side, and that this, together with his too late effort to cross over to his right, was the cause of the collision.
“The question is not one of contributory negligence on the part of Jonakin — not a defense in a criminal case— but the mere violation of the statute will not sustain a conviction of manslaughter when it appears that the killing was not the natural or probable result of the unlawful act. See Holder v. State, 152 Tenn. 390, 277 S. W. 900, where the authorities are reviewed and the distinction is pointed out between unlawful acts malum in se and those merely malum prohibitum, to which driving beyond the speed limit fixed by law belongs. And this distinction was further emphasized in Keller v. State, 155 Tenn. 633, 299 S. W. 803, 59 A. L. R. 685, which classified driving while drunk as an unlawful act malum in se.
“Nor can it be said that Hiller was guilty of criminal negligence in turning to his left after seeing the other car. If too near together to stop successfully, his movement to the left was certainly not more than an error of judgment. Witness Watts testified that Jonakin passed him a mile or two out of Obion, and that he followed the Jonakin car to the point of the collision; that Jonakin’s car gradually drew away from him; that he was driving between 25 and 30 miles an hour and the Jonakin car somewhat faster, until the cars were from a quarter to a half mile apart when the collision occurred. He says that he observed and was impressed by the fact that Mr. Jonakin drove much of the time on the left, instead of the right side. This Mr. Jonakin denies, but a driver frequently does this unconsciously and inadvertently. And a circumstance tending to explain this and sustain Mr. Watts is that the gravel road, some 35 feet wide, was being scraped and had been freshly gone over on the south side, rendering this the more inviting side for driving. But, however this may be, we think the weight of the evidence clearly shows that Mr. Jonakin was crossing from his left to his right, from the south to the north side, when the cars met. Without further reviewing the evidence, we are of the opinion that the preponderance of the evidence is against the verdict.”

In the case of Jackson v. State, 101 Ohio St. 152, 127 N. E. 870, the Supreme Court of Ohio said:

“At the request of the state, and before argument, the court gave the following special charge to the jury:
“ ‘I charge you that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Van Jackson, while operating an automobile, struck and killed the deceased, John Schademan, and you further find beyond a reasonable doubt that at the time he struck the said John Schademan, the defendant was operating the automobile in a municipality in Hamilton county, Ohio, at a rate of speed greater than 15 miles per hour, it is your duty to find the defendant guilty of manslaughter!
“It will be observed that the charge above quoted warranted the jury in finding the plaintiff in error, Van Jackson, guilty of manslaughter, if they should find that he, while operating his automobile at a greater rate of speed than 15 miles per hour, struck and killed the decedent, irrespective of whether the rate of speed was the proximate cause of the killing; and, since this proposition of law was in no way modified by the general charge, the square question is raised here as to whether an accidental, unintentional killing of a person by another engaged in an unlawful act makes that person guilty of manslaughter under the statute, irrespective of any connection between the unlaAvful act and the unintentional killing, and it seems to this court that an analysis'of the illogical and absurd results which would necessarily follow the recognition of such a rule will answer the query. For instance, if it be the law, as charged by the trial court in this case, that, if the jury find the accused unintentionally struck and killed the decedent, while engaged in an unlawful act, to wit, operating his car at a greater rate of speed than 25 miles per hour, they must find him guilty of manslaughter without reference to causation, then it must follow that if tbe accused had been violating any other valid statute, however, unconnected with the death at the time of the unintentional killing, he would be guilty of manslaughter. For instance it is a violation of a valid statute to operate a motor vehicle without having first registered same with the secretary of state, and it is a violation of a valid statute to operate a motor vehicle Avithout a placard bearing the registration number, displayed on both the front and rear of such automobile, securely fastened so as not to swing, yet, under the charge of the court, should the driver of an automobile, while driving his car — Avithout first having registered it with the secretary of state, or, having registered, Avithout having the registration placard displayed on the rear of his car or securely fastened so as to prevent SAvinging — at the rate of 4 or 5 miles per hour, and while in the exercise of the utmost care and caution, be so unfortunate as to unintentionally run over and kill a person, who inadvertently or purposely projected himself in front of the car, he would be guilty of manslaughter; for clearly it Avould be an unintentional killing by a person operating a car in the Adolation of a valid statute. And yet there Avould be no relationship between the violation of the statute and the death. The accident would have occurred just as surely had the motor Ambicie been registered or the placard securely fastened and displayed on the rear of the car. The same observation might be made with reference to the absence of a red light on the rear of the car during the night season. 'Under the charge as given a driver of a motor vehicle operating a car at 15 1/100 miles per hour in the sparsely built-up portion of a city would be guilty of manslaughter were a man suddenly to drop from a balloon immediately in front of the car and be killed by the ear, although the man would just as surely have been killed had the driver of the car been operating the same at the rate of 14 99/100 miles per hour. The proximate cause would have been the same in each case, although the result to the driver of the ear 'would have been the appalling difference between criminal guilt and legal innocence.
“We are unable to comprehend the consistency of a rule -which would justify the conviction of the surviving party to a fatal accidental collision that would not, upon the same state of facts, entitle the representative of the decedent to recover a judgment in a civil action for wrongful death. Surely we have not reached a point in the administration of justice where a man’s liberty is less sacred than his property.

“We adhere to the following pronouncement in the case of State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137:

“ ‘The unlawful act relied upon as the predicate for manslaughter .must be the proximate cause of death. If death resulted from any other cause, or there be a reasonable doubt as to the unlawful act being the proximate cause of death, the jury should acquit.’
“We hold that in a prosecution for manslaughter, on account of the unintentional killing of a human being by striking him with a motor vehicle, while the motor vehicle is being operated in violation of a valid statute, a charge of the court which eliminates from the consideration of the jury the question whether the violation of the statute was the proximate cause of the death of the decedent is prejudicial and reversible error.”

The defendant (lid not except to any of the instructions given by the court in this case. He only excepted to the refusal of the court to give the instructions requested by him. And as above stated, the correct principles of law announced in the requested instructions were fairly covered in the instructions of the court.

In instruction No. 5, to which there was no exception, the court, in its charge defining manslaughter in the first degree and applying as applicable thereto 'the reckless driving statute which declares a violation thereof, to be a misdemeanor, instructed in practically the same terms as the instruction quoted in the Jackson Case. But as above stated, there was no exception to this instruction, and the defendant was not convicted of manslaughter in the first degree, and while this instruction should have included the proposition that although defendant might be found guilty of manslaughter in the first degree if committing a misdemeanor, yet the jury must also find that this act was the proximate cause of the injury. But the court in instruction No. T, and to which there Avas no exception, instructed the jury upon the question of manslaughter in the second degree, and defined the term “culpable negligence,” instructing the jury that if they found the defendant did “operate his automobile in a culpably negligent manner, as hereinbefore defined, so as to proximately cause the same to strike the 1935 Buick sedan,” etc., that he should be found guilty of manslaughter in the second degree. While this instruction uses the word “proximate cause,” it does not in very understandable language submit the issue of proximate cause to the jury, by instructing them that it was their duty, if they found the defendant guilty of culpable negligence, that they should also find it was the proximate cause of the death of the deceased. But in instruction No. 10, to which there Avas no exception, the court instructed the jury that if they found that the defendant “was not guilty of any negligent or culpable act which proximately contributed to the death of the deceased, or if they entertained a reasonable doubt thereof,” they should acquit him.

In a criminal case it might have been better if the court had used the word “caused” instead of “contributed to.” But this instruction fairly covered the issue. The instructions taken as a whole were very proper and fairly presented to the jury the defense of defendant. As above stated, no exception was taken to any of them, and the defendant did not offer a requested instruction which covered the proximate cause issue.

We therefore would not reverse this case because of any error in the instructions, unless it had been such as to constitute a fundamental error which deprived defendant of a substantial right. But in the instant case we have found that the evidence was insufficient for the court to submit this cause to the jury, and for this reason the judgment and sentence of the district court of Oklahoma county is reversed, and the case remanded.

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