author: BESSEY, J.

text:
    MARION MENDENHALL v. STATE.
    No. A-3541
    Opinion Filed Jan. 28, 1921.
    Rehearing Denied March 8, 1921.
    (196 Pac. 736.)
    (Syllabus.)
    1. HOMICIDE — Defendant’s Threats — Admissibility. Where the plaintiff in error stands charged with the crime of- murder, and at the trial, for the purpose of determining the state of his feelings towards the deceased at the time of the homicide, the state, over the objection of the plaintiff in error, introduces in evidence a declaration in the nature of a threat made by him to a third person, a short time prior to the homicide, where the name of the person against whom the threat is made is not mentioned, but the .threat seems to have been directed against the deceased, as indicated by the gesture or motion of the head of the accused at the time of making such threats, it is a proper question for the jury to determine whether such threat was in fact made, and whether it was intended to apply to the deceased, after being admonished by the court not to consider it at all of they were not convinced beyond a reasonab e doubt that the threat, if made¡ was directed towards the deceased.
    3. EVIDENCE — Presumption of Regularity — Record of Evidence and Proceedings. Where the testimony of a witness taken at a preliminary hearing is reduced to writing, and the record shows that the plaintiff in error was present at such hearing, and the witness was cross-examined by the attorney for the plaintiff in error, the presumption arises that such testimony was properly reduced to writing and signed by the witness and filed with the clerk, and thus became a part of the records in the case of which the court will take judicial notice. Every presumption must be indulged in in favor of the regularity of the proceedings of a court of record, and the burden is upon the party who would impeach that regularity to do so by the best evidence obtainable.
    3, HOMICIDE — Instructions on. Self-defense. The instructions of the court relating to the law of self-defense examined, and held sufficient.
    4. TRIAL — Requested Instruction Covered by Charge. A requested and refused instruction offered by plaintiff in error, with reference to which of the parties was the aggressor in the difficulty, examined, and held sufficiently covered by the instructions given.

      Appeal from District Court, Leflore County; W. H. Brown, Judge.

    Marion Mendenhall was convicted of manslaughter in the first degree, and sentenced to serve a term of 21 years in the state penitentiary, and he appeals.
    Affirmed.

      Tom W. Neal and R. P. White, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

In this case the plaintiff in error, Marion Mendenhall, was charged with the crime of murdering Alexander Nowlin, alleged to have been committed in Howe, Le Flore county,, Okla., on the 30th day of March, 1918. At the trial, in due course, a verdict of manslaughter in the first degree was rendered against plaintiff in error, and judgment and sentence were entered accordingly, on the 29th day of November, 1918, fixing his punishment at confinement in the penitentiary for 21 years. In due time a motion for a new tñal was filed, covering practically the same grounds complained of in this proceeding, which motion was by the trial court overruled and exceptions taken and allowed, and an appeal taken to this court.

The homicide was admitted by the plaintiff in error, and his defense to the charge of murder was that he was justified ,in killing déceased in his necessary self-defense.

Without setting out the testimony of the witnesses in detail, it appears from the testimony introduced by both the state and the defense that prior to the time of the killing there had been some ill-feeling between plaintiff in error and the deceased, growing out of the fact that the children of the deceased had annoyed plaintiff in error by playing on the sidewalk next to his place of business, which was just across the street from the place of residence of the deceased; that about 6 o’clock in the evening on March 30, 1918, plaintiff in error left his jewelry store, locked the front door, and went to a grocery store near by and made some purchases of merchandise, the packages of which he carried in his arm, and that after he passed back towards his jewelry store he was met on the sidewalk by the deceased and John Kindle, a brother-in-law of the deceased, and that something was there said by the deceased about his children annoying the plaintiff in error; that immediately the plaintiff in error and the deceased began striking at and sparring with one another, and that they presently took hold of one another and clinched, and, after struggling some little time, plaintiff in error drew a pistol out of one of his hip pockets and fired three times, one of which shots killed the deceased.

As to whether the brother-in-law of the deceased, John Kindle, took" any part in the affray the evidence is conflicting1. There is some testimony to the effect that the deceased had a pocketknife which he was attempting to' use, but upon that point the evidence is conflicting and far from convincing.

Numerous errors are set out in the petition in error, but plaintiff in error urges but six in his brief and argument filed herein, namely:

(1) That the- court erred in permitting witness George Nowlin, Jr., to testify concerning a certain alleged threat made by the plaintiff in error directed towards the deceased or some other person, a short time prior to the' difficulty.

(.2) That the court erred in giving to the jury certain oral instructions, over the objéction of the plaintiff in error, relating to the testimony of George Nowlin, Jr., concerning the alleged threat.

(3) That the court erred in admitting the testimony of Tine Biassingame, taken before the examining magistrate at the preliminary hearing of this cause, for the reason that no proper predicate or foundation was laid for the introduction of such testimony.

(4) That the court erred in giving instruction No. 14, for the reason that no proper declaration of the right of self-defense is contained therein.

(5) That the court erred in giving instructions Nos. 18, 21, 22, and 23, because said instructions did not properly state the law of self-defense.

(6) Error of the court in refusing to give instruction No. 1, requested by the plaintiff in error, relating to which of the parties was the aggressor or which of the parties provoked the difficulty.

Analyzing the first assignment of error mentioned above, relating to the alleged threat against the deceased, made by the plaintiff in error to George Barlow, the testimony complained of is as follows:

“Q. Was Barlow there? A. Barlow and Mr. Men-denhall was standing on the corner-of the porch.

“Q. Corner of whose porch? A. Barlow’s.

“Q. Where were you? A. I was setting right there by the side of the porch, in a car.

.“Q. Whose car? A. Barlow’s.

“Q. Anybody there with you except your little brother? A. No, sir.

“Q. Did you hear a conversation there between the defendant, Marion Mendenhall, and Barlow, with reference to your father, at that time? A. Yes, sir.

“Q. You may tell the jury what it was. A. I was setting there in the car, and I overheard them talking, Mr. Mendenhall say, ‘The God damned son of a bitch just' as well go trailing up — jus.t as well go back-trail himself or I’m going to kill him,’ and Mr. Barlow punched him with his elbow, and he was nodding his head towards our building, and when he seen me, Mr. Barlow turned and walked into the store, and Mr. Mendenhall walked into his jewelry shop.”

Plaintiff in error asked that this testimony be stricken, which was by the court refused. The court permitted this testimony to go to the jury, after instructing the jury as follows:

“Unless you are satisfied beyond a reasonable doubt that that conversation, if there was a conversation, was directed towards the deceased, you will not consider it for any purpose whatever. Of course, if you do believe beyond a reasonable doubt that it was directed against the deceased, and that there was such a conversation, you will consider that along with all the other evidence in the case; otherwise, you will disregard it wholly.” .

A threat to kill or injure another, not definitely designated or named, is admissible if there are other facts adduced indicating the person referred to in such threats. 21 Cyc. 922; State v. Vacos, 40 Utah, 169, 120 Pac. 497; Brooks v. Commonwealth, 100 Ky. 194, 37 S. W. 1043.

If threats were made by the plaintiff in error against the deceased shortly before the tragedy, evidence of such threats was properly submitted to the jury, for the purpose of determining the state of mind and''the feelings of plaintiff in error toward the deceased at the time of the homicide, and where the person against whom such threat is meant to apply is indicated by some gesture or motion of the head, it is for the jury to determine, under the direction of the court, whether such threats were in fact made, and, if made, whether they were directed towards the deceased. The jury was admonished by the court that if they found that such threats were not directed towards the deceased the evidence should not be considered for any purpose whatever. McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358.

In our opinion there was no error in permitting this evidence to go to the jury, and there was no error on the part of the court in indicating to the jury the only purpose for which it should be considered.

The next error complained of is that the court permitted the testimony of Tine Blassingame, given at the preliminary hearing, -to go to the jury without a sufficient predicate having been laid for its introduction, and for the reason that the defendant was deprived of his constitutional right of being confronted with this witness. The record shows that witness Tine Blassingame, at the time of the trial, was absent from the state of Oklahoma, in naval service at Goat Island, Clal. The record does not affirmatively show that this and other testimony taken at the preliminary hearing was filed with the court clerk, in this- cause, but there is a presumption of law that the officers of the court did their duty, as the law directs, and that the proceedings at the preliminary trial were examined by the court and found regular, and that the record of the testimony of this witness filed with the court clerk became a part of the records in this case, of which the trial court took judicial notice. There was no denial that this was the testimony of this witness before the examining magistrate, or that the same was not properly authenticated and filed. There is a presumption that the plaintiff in error was present at the preliminary hearing and the record shows that this witness was subjected to a rigid cross-examination by the attorney for plaintiff in error.

-Every presumption must be indulged in in favor of the regularity of the proceedings of a court of record, and the burden is upon the party who would impeach that regularity to do so by the best evidence obtainable. Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300: 10 R. C. L. 882; Wines v. State, 7 Okla. Cr. 456, 124 Pac. 466.

Applying the above rule, the presumption is that there was a preliminary hearing; that the plaintiff in error was present; that the testimony was reduced to writing, signed and filed with the clerk, and was properly a' part of the records of the case. Otherwise, the court would not have permitted this testimony to go to the jury.

The testimony of a witness, taken before an examining magistrate in the presence of the defendant and his counsel, where it is shown that the witness has since gone beyond the jurisdiction of the court and cannot be reached by its processes, may be admitted as evidence against the defendant upon his trial, and the admission of such testimony does not infringe upon the constitutional right of the defendant to be confronted with the witnesses against him. Mendenhall v. State, 6 Okla. Cr. 436, 119 Pac. 594: Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621.

We will next consider the objections of plaintiff in error to instructions numbered 14, 18, 21, 22, and 23, on the alleged ground that interpreted separately, and as a whole they do not correctly state the law of self-defense. These may all be considered together, and the instructions complained of, in their order, are as follows:

(14) If in this case you do not believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder, as defined in these instructions, but you do believe from the evidence beyond a reasonable doubt that the defendant, in Le Flore county and state of Oklahoma, within three years next prior to the date of the filing of the information in this cause, did without authority of law and without a premeditated design to effect the death of Alexander Nowlin, while in a heat cf passion caused by a provocation apparently sufficient to excite uncontrollable passion in the mind of the defendant such as would render him incapable of cool reflection, shoot and discharge leaden bullets into the body of him, the said Alexander Nowlin, from a loaded pistol, and then and there and thereby inflicted wounds upon the body of the said Alexander Nowlin from the effect of which he died, then it will be your duty to acquit the defendant on the charge of murder and to find him guilty of the lesser degree of crime, to wit, manslaughter in the first degree.

(18) If a person is assaulted in such a way as to induce in him a reasonable belief that he is in danger of losing his life or suffering great bodily harm, he will be justified in defending himself, although the danger is not real, but only apparent. Such person will not be responsible criminally if he acts in ^elf-defense from real and honest convictions as to the character of the danger induced by reasonable appearances, although he may be mistaken as to the extent of the actual danger. A person need not be in actual imminent peril of his life or of great bodily harm before he may slay his assailant. It is sufficient if in good faith he has reason to believe from all the facts and circumstances as they appeared to him at the time that he is in such imminent peril.

(21) You are further instructed that if you have a reasonable doubt as to whether or not the defendant at the time of the shooting acted in good faith and upon reasonable appearance of danger of then losing his life or receiving great bodily harm at the hands of the deceased and John Kindle, or either of them, then it will be your duty to acquit this defendant, unless you further find from the evidence beyond a reasonable doubt that the defendant provoked the difficulty, within the meaning of this term as hereinafter defined and explained.

(122) If a person armed with a deadly weapon intentionally provokes a difficulty with another for the purpose and with the intent to take his life or to do him great bodily harm, and in the difficulty he kills his adversary, he cannot claim self-defense, it matters not to what extremity he may be reduced in the tíonflict, and such killing would be murder.

(23) You are further instructed in this connection that before a defendant in a homicide case can be deprived of the right of self-defense by reason of having provoked the difficulty, the jury must believe from the evidence beyond a reasonable doubt that the defendant provoked the difficulty for the purpose and with the intent upon his part to take the life of the deceased, or to do him great bodily harm, and that the defendant provoked the difficulty by an unlawful overt act of aggression on his part, or by an unlawful act or word.

Plaintiff in error contends that the fourteenth instruction should have contained a modified declaration on self-defense. As to this we do not agree. We think that this instruction, in connection with instruction No. j7, as applied to the facts in the case, fairly informed the jury under what circumstances the verdict might be reduced from murder to manslaughter in the first degree. Justifiable homicide was fairly stated in 'instruction No. 17 as follows:

“A homicide is justifiable when committed by any person in either of the following cases:-

“(a) When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or

((b) When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is reasonable grounds to apprehend a design to commit a felony or to do some great personal injury and imminent danger of such design being accomplished.”

It is earnestly contended in the brief of plaintiff in error that the opening sentence of instruction No. 18, “if a person is assaulted in such .a way as to induce in him a reasonable belief that he is in danger of losing his life or suffering great bodily harm, he will be justified in defending himself, although the danger is not real but only apparent,” so qualifies all of the other instructions complained of as to make it appear to the jury that the defense of self-defense could not be invoked by the plaintiff in error until after he had been first assaulted by the deceased. ,

Instructions in all cases should be given for the purpose of guiding the jury as to the law applicable to the facts adduced in testimony, and the testimony in this case was such that the jury might have believed from the evidence that the deceased first assaulted the plaintiff in error; on the other hand, the testimony might have warranted the jury in the belief that the plaintiff in error first assaulted the deceased; or that it began as a mutual altercation. New v. Territory, 12 Okla. 172, 70 Pac. 198.

In analyzing this instruction we must bear in mind the distinction between an assault and an assault ¿nd battery. An assault has been defined as:

“A demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.”

Another definition is that—

“An assault is an attempt to commit a battery, coupled with a present ability to do so.” 2 R. C. L. 525.

We think that under the circumstances there was no error on the part of the court in the use of. the language contained in the opening sentence of instruction No. 18, but if by any chance the language so used was susceptible of a prejudicial construction, ft was fully corrected by the other instructions given, as above set out.

Plaintiff in error insists that instruction No. 1, offered by his attorney and refused by the court, should have been given, as follows:

“You are instructed that in determining who is the aggressor in the case you must consider all the facts and circumstances surrounding the difficulty and occurring at the time of the fatal affray, and the fact that either the defendant or the deceased at the time of the difficulty struck the first blow might not, of itself, constitute the striker the aggressor, but such fact should be considered by you, together with the surrounding facts and circumstances, in determining who in fact was the aggressor.”

We find no error in the refusal to give this instruction, for the reason that the law as therein stated was fully covered by the instructions given.

The judgment of the trial court is therefore affirmed.

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    J. L. DAVIS v. STATE.
    No. A-3497
    Opinion Filed March 12, 1921.
    (196 Pac. 146.)
    (Syllabus.)
    1. EVIDENCE — Corroboration of Accomplice. It is not essential that evidence corroborating an accomplice shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.
    2. TRIAL — Instruction as to Credibility of Witnesses. The trial court gave the following instruction: “If you believe from the evidence that any witness has willfully and knowingly testified falsely to any material matter, then you may, if you deem proper, disregard the entire testimony of such witness, unless you find other portions of his testimony to have been corroborated by other credible evidence, or you may without such corroboration give the testimony of such witness on other points such weight and credit as you deem it entitled to.” Held not to be prejudicially erroneous.

      Appeal from District Court, Payne County; Chas. B. Wilson, Judge.

    J. L. Davis was convicted of grand larceny, and he appeals.
    Affirmed.
    Fred A. Wagoner, Geo. B. Rittenhouse, and P. T. McVay, for plaintiff in error.

      S. P. Freeling, Atty. 'Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

Plaintiff in error, J. L. Davis, hereafter designated defendant, was informed against in the district court of Payne county, Okla., and convicted of the crime of larceny of seven joints of oil well casing, the property of the Gypsy Oil Company, of the approximate value of $300; and was sentenced to be imprisoned in the state penitentiary for a period of one year and one day.

Two errors are presented as grounds for the reversal of this judgment.

First. That the verdict of the jury is not supported by sufficient evidence.

Under this assignment of error it is contended that the verdict is based upon the uncorroborated testimony of an accomplice or accomplices, and that there is no evidence in the record which meets the requirements of the statute (section 5884, Revised Laws 1910) that—

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The evidence in this case is quite lengthy, and the issues somewhat involved, and it would require a lengthy detail of the evidence in order to set forth the facts and circumstances appearing in the record independent of the testimony of the alleged accomplices which tend to connect defendant with the commission of this offense. We have carefully examined the entire transcript of the evidence, and have closely considered the testimony of each witness in its relation to the testimony of each other witness, and, while the evidence corroborative of the alleged accomplice or accomplices is not independently sufficient, perhaps, to establish the guilt of defendant beyond a reasonable doubt, it does in our opinion tend tc connect defendant with the commission of this crime, and the rule in this state is:

“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to .connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence,. however, must show more than the mere commission of the offense or the circumstances thereof.” Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676.

Other cases in principle the same are: Wilkerson v. State (Tex. Cr. App.) 57 S. W. 956; People v. Thompson, 16 Cal. App. 748, 117 Pac. 1033; People v. Watson, 21 Cal. App. 692, 132 Pac. 836.

Second. It is contended that the court, erred in giving the following instruction:

“If you believe from the evidence that any witness has willfully and knowingly testified falsely to any material matter, then you may, if you deem proper, disregard the entire testimony of such witness, unless you find other portions of his testimony to have been corroborated by other credible evidence, or you may without such corroboration give the testimony of such witness on other points such weight and credit as you deem it entitled to.”

For reasons given holding that the giving of substantially the same instruction as the foregoing is not reversible error, see opinion of this court in the recent case of Peter Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901.

Judgment affirmed.

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


author: BESSlEY, J.

text:
    CORNELIUS D. FREELS v. STATE.
    No. A-3537
    Opinion Filed March 12, 1921.
    (195 Pac. 1094.)
    (Syllabus.)
    1. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evi dence. The evidence examined, and found abundantly sufficient to support the verdict.
    2. WITNESSES — Impeachment—Inconsistent Statements. It is improper and may be prejudicial to lay the foundation to impeach and to impeach a witness on cross-examination on purely collateral and immaterial matters; but, where facts explanatory of threats made in a homicide case are brought out on the examination in chief of one of defendant’s own witnesses, then such facts become material, and the witness reciting them may be impeached by showing that at other timos and places he made contradictory or inconsistent statements of the incidents connected with such threats.
    3. HOMICIDE — Dying Declaration — Admissibility. Where the deceased, a short time after he was shot and a few minutes before lie expired, knowing that death was impending, referring to the defendant, who was at that moment passing in the custody of the arresting officer, said, “He threatened to kill me,” such statement, under the circumstances in this case, was properly admitted as a dying declaration.

      Appeal from District Court, Muskogee County; Charles G. Watts, Judge.

    Cornelius D. Freels was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Crump & De Graffenried, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the ¡state.
   BESSlEY, J.

On the 19th day of October, 1918, Cornelius D. Freels, ' plaintiff in error,' hereinafter referred to as the defendant, was informed against in the district court of Muskogee county for the murder of Jacob William Shoults in the city of Muskogee on the 24th day of September, 1918. Upon trial a verdict was rendered against the defendant for manslaughter in the first degree on Novemer 23, 1918, and the court, upon rendering judgment, fixed the punishment at imprisonment in the state penitentiary for a period of 20 years. From this judgment the defendant has appealed to this court.

Testimony on the part of the state shows that for some time prior to the homicide deceased had been living at the Rockefeller Hotel in Muskogee; that on this day two peáce officers were sitting on the front porch of this hotel, watching a car which was said to have been stolen and which was at a garage diagonally across the street from the hotel; that while these officers were sitting there deceased came out of the hotel and stepped off the porch onto the sidewalk adjoining, placing one hand on one of the pillars of the porch, near where the officers sat, and engaged in conversation with them; that while he was in this position the defendant approached, and, without words or warning, fired two shots from a 45 Colt’s revolver, one of which entered the hack of the deceased at about the tenth rib and about four inches to the right of the spinal column, passing through the body and coming out at the left of the umbilicus, resulting in death about one hour later. These peace officers did not see the defendant before the first shot was fired, and heard no words and saw no demonstration on the part of the deceased indicating that he knew of the presence of the defendant. After the first shot was fired one of the officers grappled with the defendant and overpowered him, and while this was going on another shot was fired. The deceased had no weapon in his hand and none was found on his person after the tragedy.

The defendant testified that he had had previous trouble with the deceased, and that the latter had threatened his life, both in his presence and in the presence of others, who had communicated these threats to him; that upon this occasion he came to where the deceased stood and discovered him unexpectedly; that the deceased saw him and turned and reached for something in his pocket; that the defendant believed that the deceased was about to .shoot him; and that defendant fired the fatal shot in his necessary self-defense.

The several assignments of error which plaintiff in error urges in his brief may be grouped and treated as follows:

(1) That the verdict of the jury was contrary to the law and the evidence.

(2) That the court erred in permitting the witness Hughes, over the objections of the defendant, to answer an impeaching question as to what had been stated to him by another witness touching collateral matters not in issue in this case.

Error of the court in permitting the witness Hamilton to testify to certain alleged dying declarations of the deceased.

First. Without setting out and analyzing the testimony in detail, we think the evidence was amply sufficient to support the verdict. Indeed, under the evidence, as we view it, the jury would have been justified in bringing in a verdict for murder instead of for manslaughter in the first degree, and since the jury took the view more favorable to the defendant, he has no cause for complaint.

Second. It is next insisted that the court erred in permitting the witness Hughes, over the objections of the defendant, to answer an impeaching question on a matter collateral to the issue. A Mr. Howlett, a witness for the defendant, in his examination in chief testified that he was and for a long time prior to the homicide had been the owner and manager of a rooming house in Muskogee, in which the deceased was for a time employed, and that the defendant at the same time was lodging at this house; that about nine months previous to the homicide the defendant and the deceased had a quarrel in the washroom of the rooming house. The witness was asked in the course of his examination by defendant’s attorney:

“Q. Now tell what was said by each one, as near as you can remember it. A. Shoults said, ‘What did you have Gruño arrested for?’ and Freels said, ‘I had him arrested for talking about the President of the United States, blowing up smokestacks and one thing and another; that is what I had him arrested for, talking about this country,’ and Shoults said, ‘Well, I will tell you, he says that you had no business having him arrested.’ He says, ‘You had no business to have Gruño arrested.’ He said that Wilson ran on the ticket, on a peace ticket, and he said he was a damn traitor to his country, and he said that before this war was over the Kaiser was going to whip the world, and Freels said, ‘I won’t — ,’ and I stepped out and said, ‘You cut this out; don’t you say another word about this; 1 am not going to have any trouble about it.’ I said, ‘Freels, you step inside, and John, you step inside,’ and he said, ‘I will blow the damn son of a bitch’s brains out if he is talking about Germany.’’ And I said, ‘Shoults, you go on in there; you will have to cut this out.’ So John went in his room right there, and he said, ‘I am going to kill that damn son of a bitch, if it is the last thing I do.’ He said, ‘I told Freels — ’ ”

In the cross-examination of this witness by County Attorney Cotton for the purpose of impeachment questions were asked and answers given as follows:

“Q. Mr. Ho'wlett, in that conversation that you had with Mr. Hughes there, didn’t he ask you as to what statements, disloyal statements, you ever heard the deceased make, and if you didn’t say to him then that the only statement or things that you knew was disloyal against the deceased was at the time that he would not testify against Otto Gruño, who was charged with being a pro-German, and if that wasn’t — and didn’t state to him that that was all that you ever heard or knew about, or words to that effect? A. I don’t remember that statement at all; I can tell you the conversation I had.

“Q. You say you don’t remember? 'A. No, sir.”

Afterwards the county attorney called the witness B. G. Hughes to testify for the state and asked him the following question:

“Q. Mr. Hughes, didn’t- the witness Sterling How-lett, at the Elgin rooming house on the afternoon of the day the shooting took place state to you this, or this in substance: First, didn’t you ask him this question, didn’t you ask Mr. Sterling Howlett this question in substance: Did you not tell Mr. Hughes that you knew of no reason for Shoults being a pro-German except that he refused to testify against Otto Gruño? or words to that effect, and didn’t he — Mr. Hughes, in that conversation you had with him there, didn’t you ask Mr. Howlett as to what statements, disloyal statements, he ever heard the deceased make, and if he didn’t say to you there that the only statements or things that he knew against the deceased was at the time he would not testify in the case of Otto Gruño, who was charged with' being a pro-German, and didn’t he state to you that was all he ever heard, or words to that effect?

“Mr. Crump (ifor defendant) : Objected to as incompetent, irrelevant, and immaterial, and for the further reason that it is not the same question asked Howlett, and for the further reason that the question is practically unintelligible, and for the further reason that it is an attempt to impeach a witness on an immaterial matter.

“The Court: Objection overruled.

“Mr. Crump: Defendant excepts.

“The Witness: That was the substance.’’

The defendant attacks the admissibility of this testimony on the ground that it is an attempt to impeach his witness on a collateral amd immaterial point, that the question as to whether the deceased was pro-German is immaterial, and that the jury may have concluded that, if this witness testified falsely concerning immaterial facts, his testimony relating to facts that were material was not worthy of credit.

The rule of impeachment on collateral matters has been laid down by this court in, Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, and in Willis v. State, 13 Okla. Cr. 700, 167 Pac. 333, where it is stated as follows:

“When a witness is cross-examined on a matter collateral to the issue, his answer is conclusive and cannot be subsequently contradicted by way of impeachment by the party putting the question. The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea?

But was this collateral and immaterial testimony? In both of the cases noted above the foundation for the impeachment of the witness on collateral and immaterial matters was laid on cross-examination, while in this case the damaging, disloyal statements of which complaint is made, if indeed they were damaging, were brought out in the examination in chief of the defendant’s own witness, as explanatory of why the deceased had threatened to kill the defendant, as claimed by defendant. These disloyal statements were material as tending to show why the threat against the defendant was made, if- indeed it was made. The state, under such circumstances, would have a right to impeach the witness by showing that at other times and places he had made contradictory or inconsistent statements. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418; Greenleaf on Evidence (16th Ed.) vol. 1, §§ 461f, 462a; 40 Cyc. 2572.

Where, as in this case, a witness attempts to recite the incidents of a quarrel previous to and leading up to the homicide, if these statements are admissible at all, the jury is entitled to know all that occurred and all that was said at the time; and, since some, of the statements, so made contained threats by the deceased against the defendant indicating a hostile attitude between the parties, it was proper for the jury to have the entire statement, although inseparable portions of such statement were not material. This argument or quarrel, took place nine months before the homicide occurred, and the credibility of this witness and the weight to be given to his testimony were matters for the jury. Greenleaf on Evidence, supra, § 462b.

Third. The testimony shows that the deceased expired about one hour after he was shot; that before his removal to the hospital he was conscious and knew that he had been' shot through the body at a vital spot, and. that immediately after the shooting he had exclaimed, “I am killed! I am killed !” While waiting for the ambulance one Flora Armstrong asked the deceased, in the presence of. Cass Hamilton, who shot him, and' he replied by spelling defendant’s name, “F-r-e-e-l-s.”

Witness Hamilton was asked this question:

“Q. Did he make any statement there with reference to anything that had been done or said to him by this defendant? A. Yes, sir.

“Q. Tell the jury what he said. A. He asked for a drink of water, and Dr. Hollingsworth said, ‘Don’t give him much water.’ And I raised him up with my right hand, and he took a little bit of water, and the gentleman who did the killing passed in the patrol wagon, and he looked out the window and he says — says kind of like Chat — in a mumbling- tone, ‘‘He threatened to kill me.’ ”

So far as we can ascertain from the record, the deceased was speaking of the incidents that had just taken place, and this testimony was properly admitted as a dying declaration. For the sake of argument only, assuming that this evidence might be inadmissible and giving the defendant’s testimony the benefit of the most favorable construction, the jury would not have been justified in bringing in a verdict of acquittal on the theory of self-defense. If the expression, “He threatened to kill me,” referred to some other time not connected with the res gestae, it might have been prejudicial had the verdict been for murder; but, since the verdict was for manslaughter only, the question of prejudicial error in this regard is eliminated.

. Finding no prejudicial error in this record, the judgment, of the trial court is affirmed.'

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


author: PER CURIAM.

text:
    LUKE JENKINS v. STATE.
    No. A-3604
    Opinion Filed March 28, 1921.
    (196 Pac. 553.)
    (Syllabus.)
    VAGRANCY — “Vagrant”—Insufficiency of Evidence. In a prosecution for vagrancy, evidence held insufficient to show defendant held to oe a vagrant within Rev. Laws 1910, i 2515, subd. 1, 2, making an idle person who lives without means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment, or who strolls or loiters idly about the streets of any city or town, having no local habitation and no honest business or employment, a vagrant.

      Appeal from County Court, Pontotoc County; Orel Busby, Judge.

    Luke Jenkins was convicted of vagrancy, and he appeals.
    Reversed.

      King & Crawford, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county court of Pontotoc county, wherein Luke Jenkins was convicted of the crime of vagrancy, and sentenced to pay a fine of $100 and to serve 30 days’ imprisonment in the county jail. From such judgment of conviction he has appealed to this court, and contends that the evidence does not show him to be a vagrant within the meaning of the statute defining said offense.

•The charging part of the inforfnation is substantially as follows:

“That on or about the 27th day of March, 1919, and for 15 days, prior thereto, the defendant did, in Pontotoc county, state of Oklahoma, willfully, wrongfully, unlawfully be an idle person who lived without any means, and who- had no visible support and made no exertion to obtain a livelihood by honest employment, and was a person who strolled and loitered idly about the streets of the city of Ada, Pontotoc county, Okla., having no local habitation and no honest business or employment, and was an able-bodied person and able to work, contrary,” etc.

The information is based upon the first two subdivisions of section 2515, Revised Laws 1910, later amended by chapter 61, Session Laws 1919. These said subdivisions respectively provide the following persons to be vagrants: (1) An idle person who lives without any means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment; (2) any person who strolls or loiters idly about the streets of any city or town, having no local habitation and no honest business or employment.

Neva Pritchett, a witness for the state, testified substantially as follows: That she knew defendant; that on about the 10th day of March, 1919, she rented the Katy Rooms in the city of Ada from defendant, subleased them, and that defendant reserved two rooms there for his own use and kept such rooms from the 10th of March to the 1st of April following; that defendant was not in his rooms a great deal, either during the day or night; that defendant said he was working during that time for a Mr. Ford.

Wick Adair testified substantially as follows: That he was a policeman, and knew defendant; that he saw defendant practically every day from the 10th to the 27th of March in the city of Ada on the street around Holley’s Drug Store; that most of the farmers when in the city congregated in that- part of town; that he did not know whether defendant was buying hogs or not, and did not know whether he was drawing any salary from anybody during that time; never saw defendant doing anything.

Bob Duncan testified substantially as follows: That he was sheriff of the county and knew defendant; saw defendant frequently during the latter part of March, 1919, in the city of Ada, generally on Main street from Holley’s Drug Store to the Katy Rooms; never saw him working; that he arrested defendant; that at the time of the arrest defendant said, “I am not a vagrant; I am working for Bob Ford;” defendant did not state what he was doing; that defendant appeared to be able-bodied; had seen defendant “pretty full” during that time; did not know whether defendant was buying stock for people or not during that time; did not know whether he was earning a salary during that time or not.

Mr. Anderson testified substantially as follows: That he was a member of the police force and knew defendant; saw defendant in Ada during the latter part of March, 1919, mostly at night on Main street around Holley’s; that he would be standing around talking; never saw him at work. Defendant looked to be well; saw hundreds of others on the street; did not know whether Bob Ford was paying defendant a salary or not.

John Rawls testified substantially as follows: That he was chief of police of the city of Ada and knew defendant; saw him in Ada the latter part of March, 1919, on the streets; never saw him, working; had known defendant about 20 years; that he seems to be well; did not know whether he had any money or not; did not know whether he was drawing a salary for work or not; usually saw him where the farmers congregated; did not know whether he was buying hogs or not, that defendant could have been and witness would not have known it.

Walter Goyne, for the state, testified substantially as follows: That he was one of the officers; had known defendant 17 or 18 years; saw him the latter part of March practically every day on the streets in Ada; never saw him working; saw him coming and going from the Allen (Katy) Rooms; that the defendant looked to be able-bodied; could not say he saw defendant every day; did not know whether he was drawing a salary; did not know whether defendant had -any means of support; supposed defendant roomed at the Allen (Katy) Rooms; did not think defendant was married; never heard- of defendant having any office, store, or place of business.

R. P. Ford, a witness for defendant, testified substantially as follows: That he lived 3y2 miles south of Ada; knew defendant rented the Allen (Katy) Rooms to Mrs. Pritchett on the 10th of March, 1919; prior to that time Luke Jenkins had the running of those rooms; after the rooms were rented to Mrs. Pritchett, defendant reserved two rooms for himself; defendant paid rent for the rooms and was manager of the rooming house prior to March 10th; after March 10th he hired defendant to work for him, and still employed him; that he paid defendant $50 a month salary to work around on his farms .repairing fences, collecting rents, and doing whatever he had to have done; during the period covered by information, defendant had collected money for him and worked on the farm and bought stock; that he let defendant carry his check book and check against his account and buy stock; that he had defendant hired, and if defendant found any stock he could buy he checked on witness for the money; that he paid defendant $50 salary and boarded him; that he owed defendant $28 or $29 at that time; had not paid him in full; that he gave defendant money along as he wanted it; that he had paid him $61 or $62 since he commenced after quitting the rooming house; that he had about 5,600 acres of land, and hired defendant to see after the rents and help him with, the land.

Luke Jenkins, defendant, testified substantially as follows: That he worked with Bob Ford between the 12th and 27th of March, 1919, for a salary of $50 a month and board; that he had money in the bank; was on the streets in Ada both in -day and night collecting renes and helping Bob Ford; during that time made a trip to Paoli, Wynnewood, and Pauls Valley to collect for Bob Ford; last summer worked as a farm hand for Fletcher Reed; in the winter traded for hogs for Reed; made his living generally by trading; ¡was convicted 3 years ago for violating the prohibitory liquor law'; that he rented the Katy Rooms out the 10th of March; before that time was running the rooms and buying hogs too; did not know whether he bought any hogs between the 12th and 27th of March or not ; worked for Ford, collecting rents and helping him during that time; was rooming at the Katy Rooms part of that time; had two rooms down there.

The foregoing is all the material evidence in the case, concisely stated. We do not think this evidence shows defendant to be a vagrant within the contemplation and meaning of the sections of the statute above referred to. When considered in its entirety, it falls short of establishing some of the material elements of the offense of vagrancy^as defined by the foregoing subdivisions. While there is evidence to the effect that defendant was probably idle during part of the period of time covered by the information, the undisputed evidence is to the effect that defendant had at that time a local habitation and an hon-esfc employment, and was earning a salary of $50 a month and his board from one R. P. Ford,

Before a conviction for vagancy aaginst one who has lived in a community for a period of 20 years should be permitted to stand the proof should show that he comes squarely within the terms of the statute' defining a vagrant. In this case it is the opinion of the court that certain material elements of this offense are lacking in the state’s proof, and the uncontradicted evidence on the part of the defense clearly places him without the statutory definition.

The judgment is reversed.


text:
    JOSEPH HARRIS v. STATE.
    No. A-3539
    Opinion Filed March 19, 1921.
    (196 Pac. 354.)
    (Syllabus.)
    I. APPEAL AND ERROR — Defective Record — Presumption of Correct Rulings — Objections to Record of Preliminary Examination Considered Correctly Determined Where Record Shows no Findings. Where the defendant challenges the correctness and sufficiency of the record of the testimony taken at a preliminary examination, by motion to quash the information and by ob.iect-tions to arraignment, and the court overrules such objections, and where nothing appears of record showing the findings of fact and conclusions of law by the court, the motion to quash and objections to arraignment will be considered properly determined adversely to the defendant.

      2. PRELIMINARY TRIAL — Inaccuracies in Record of Testimony— Effect. Omissions or inaccuracies in the transcript of the record of the testimony taken at a preliminary hearing are not jurisdictional in the sense that such defective record is equivalent. to no preliminary hearing at all, within the meaning of our Constitution and statutes providing for such hearing and record.
    3. SEDUCTION — Instructions—Elements of Crime. Instructions defining seduction examined, and found sufficient.
    4. SEDUCTION — Promise of Marriage as Inducement. In a seduction case a promise of marriage need not be the only inducement causing the female to surrender her chastity. It is sufficient if the promise of marriage is the paramount moving inducement.

      Appeal from District Court, Haskell County; E. F. Lester, Judge.

    Joseph Harris was convicted of seduction, and he appeals.
    Affirmed.

      Guy A. Curry, for plaintiff in error.

      S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 18th day of January, 1919, in. the district court of Haskell county, Joseph Harris, plaintiff in error herein, and hereafter referred to as defendant, was convicted of the crime of seduction, committed on the 9th day of May, 1918, and sentenced to serve a term of two years in the state penitentiary. From this judgment of conviction defendant prosecutes his appeal to this court.

The defendant was a young Choctaw negro who courted a young negro girl living in the same community. During the spring of 1918 these parties were much in the society of one another, and, according to the testimony of the girl, they eventually became engaged to marry. This was corroborated by love letters from the defendant and by the testimony of witnesses who knew of this engagement and who assisted the girl in preparing suitable clothing for the prospective wedding. This girl, the prosecuting witness, claimed that under this promise of marriage she was induced to submit to sexual intercourse with the defendant, resulting in her pregnancy. She and others testified that she was of previous chaste character.

'The defendant denied that he was the author of the love letters, denied that he was ever engaged to marry the girl, and denied that he had ever had sexual intercourse with her. The testimony is conflicting, but the record discloses sufficient evidence to support the verdict.

The defendant in his brief urges and argues but two assignments of error:

(1) That at the preliminary examination he requested that the testimony be written, and that in pursuance to such request the testimony was reduced to writing by an incompetent stenographer, who transcribed the evidence taken at the preliminary examination inaccurately.

(2) That the instructions defining the crime of seduction did not correctly state the law.

First. The defendant objected to being arraigned and- put on trial for the reason that he had not had a preliminary examination as provided by law; that the transcript of the testimony taken at the preliminary examination was incomplete and inaccurate. This objection was by the court heard and overruled. Without any recital in the case-made as to the findings of the court relative to the objection to the correctness of the testimony given at the preliminary examination, this court will treat the overruling of the defendant’s motion as being properly determined adversely to the defendant.

There was some parol testimony offered that the talc-ing of the testimony at the preliminary examination was done by an incompetent stenographer, and that portions of the transcript were incorrect. The case-made contains no recitals or record in the nature of a bill of exceptions showing the conclusions and findings of the court in overruling the motion to set aside the information on these grounds. Under this state of the record, this court cannot disturb the finding of the trial court below. Sing v. State, 4 Okla. Cr. 545, 113 Pac. 204.

It appears from the case-made that the testimony taken at the preliminary and transcribed by the stenographer was certified as being the testimony taken at such hearing and as being correct according to “the best of my ability.” This transcript shows no answers, to some of the questions propounded, from which an inference might be drawn that the stenographer was unable to transcribe the answers given. IThe answers omitted were few in number, and an examination of this transcript discloses that for the most part they were immaterial. No attempt was made to supply or correct these omissions or inaccuracies iby secondary evidencé. The record shows that the testimony of the prosecuting witness at the trial was, similar to and in keeping with her testimony given at the preliminary hearing, and no effort was made to impeach her testimony at the trial by the evidence taken at the preliminary hearing. The corroborating witness who testified at the preliminary did not testify at the trial, and during the trial no reference was made to any of the testimony taken at the preliminary hearing for purposes of impeachment. The facts developed at the trial did not materially differ from facts brought out at the preliminary hearing.

We cannot agree with counsel for defendant that, because there may have been omissions or inaccuracies in the transcript of the evidence taken at the preliminary hearing, this would be equivalent to no preliminary hearing at all, under our Constitution and statutes. Section 17 of the Bill of Rights of our Constitution provides that no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. A portion of section 5674, Rev. Laws 1910, provides as follows:

“On the request of the county attorney, or of the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in section 5719. In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the county attorney.”

It will be seen from this law vitalizing this provision of our Constitution that the manner of taking the testi-' mony is not jurisdictional. Unless the county attorney or the defendant request it, none of the testimony need be reduced to writing, and where the request is made, the law provides that the county shall not be liable for the expense of reducing such testimony to writing, unless ordered by the county attorney. If the testimony is reduced to (writing, it then becomes the duty of the magistrate to preserve the testimony and file it with the proper court, and a failure to do so is punishable as a misdemeanor. This makes it mandatory, so far as the magistrate is concerned, but a failure to do so is not, in our judgment, jurisdictional so as to deprive the trial court of the power to proceed with the prosecution. As a general rule, statutory provisions directing the mode of procedure of public officers intended to secure order, system, and dispatch in proceedings are directory, and not jurisdictional. We cannot believe that it was the intention of our Legislature to put it within the power of an examining magistrate to interfere with the jurisdiction of a trial court by failing or refusing to do a ministerial act, as directed by section 5674, Rev. Laws 1910. The jurisdiction of the district court depends upon the findings and order of the examining magistrate, based on the testimony taken before him at the preliminary hearing, and not on any ministerial act. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Norwood v. State, 14 Okla. Cr. 637, 169 Pac. 656; Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332; State v. Flowers, 58 Kan. 702, 50 Pac. 938; 25 R. C. L. 769.

The cases cited in defendant’s brief from California, Idaho, and Michigan have no application here, because in those states the statutes by express terms make the transcribing and filing of the testimony mandatory and jurisdictional. Sections 869, 870, and 871, Penal Code of California; Sections 75 and 76, Revised Code of Idaho; section 5992, Compiled Laws Mich. 1857, and revisions.

Second. The defendant complains of instruction No. 2 as given by the court, as follows:

“You are further instructed that; if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Joseph Harris, did in the county of Haskell and state of Oklahoma, on or about the 9th day of May, 1918, and prior to the date of the filing of the information in this case, have illicit sexual intercourse, and did then and there knowingly, willfully, and unlawfully and feloniously carnally know and have sexual intercourse with Alberta McClain, and that the said intercourse, if any, was committed as charged in the information upon and with Alberta McClain, and that the said Alberta McClain was an unmarried female of previous chaste character, and that the said intercourse, if any, was committed under and by virtue of a .promise of marriage by the said defendant to the said Alberta McClain, and that by reason of said promise, if any, the said Alberta McClain consented to the said act of sexual intercourse, if any, then and in that event you should find the defendant guilty as charged in the information; otherwise you will acquit him.”

The court further instructed the jury in instruction No. 5 as follows:

“You are further instructed that the defendant has interposed in this case as one- of his defenses, and has introduced some evidence which tends to prove that prior to the alleged offense the prosecuting witness, Alberta McClain did not possess a chaste character. Such a defense is proper and legitimate, and the jury should consider all the evidence bearing upon this point, whether introduced by the state or by the defendant, and if after a careful consideration of all the evidence in the case, including that bearing upon the character of the mose-cuting witness, the jury entertain a reasonable doubt as to whether the prosecuting witness possessed a chaste character at the time of the alleged crime, if any, was committed, then and in that event the jury should acquit this defendant.” '

We think that these two instructions, together with the other instructions given, fully and correctly advise the jury of the elements going to make up the crime of seduction, viz.:

(1) She must be an unmarried female, of previous chaste character.

. (2) She must be induced to surrender her chastity under a promise of marriage.

Section 2423, Rev. Laws 1910.

Defendant earnestly contends that the promise of marriage must be the sole and only inducement causing the female to yield. While this seems to be the rule in California and Texas, in the majority of states it is sufficient if the promise of marriage is the chief inducing cause, and we think that the majority rule is supported by titó better reasoning. The word “seduce,” in its ordinary use, implies some artifice, persuasions, or wiles, and in many cases it would be impossible to say that there was no other inducement or influence brought to bear to cause the female to yield. The law of cause and effect, in its ordinary sense, should be applied. Otherwise the crime would not be seduction, but the mere bartering away of a woman’s virtue under a promise of marriage. State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. Rep. 349; Carney v. State, 79 Ala. 14; People v. De Fore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. Rep. 863; People v. Smith, 132 Mich. 58, 92 N. W. 776; Keller v. State, 102 Ga. 506, 31 S. E. 92; Clarke on Criminal Law, 710.

The instructions given, reasonably and fairly inter?-preted, indicated to the jury that they must find beyond a reasonable doubt that the promise of marriage was the paramount moving inducement for the girl to surrender her chastity, and that instruction No. 5 quoted above stated the law in a commendable form.

The judgment of the trial court is affirmed.

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


author: DOYLE, P. J.

text:
      Ex parte A. C. MULLINS.
    No. A-3933
    Opinion Filed March 19, 1921.
    (196 Pac. 145.)
    (Syllabus.)
    1. BAIL — Murder—Refusal of Bail. Upon an application for bail after commitment upon a charge of .murder, on the ground that the proof of guilt is not evident, nor the presumption thereof great, and upon a consideration of all the evidence offered the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt, bail will be refused.
    3. SAME. Evidence considered, and held to justify the refusal of bail to a petitioner in custody upon a charge of murder.
    Petition by A. C. Mullins for a writ of habeas corpus to obtain his release on bail.
    Writ denied.

      James Springer and Charles H. Garnett, for petitioner.
    The Attorney General and W. C. Ball, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

IThe petition filed, on behalf of A. C. Mullins, March 9, 1921, for writ of habeas corpus to be let to bail, discloses that he is held in custody by virtue of a certain commitment issued by W. P. Williams, county judge, Tulsa county, sitting as an examining magistrate upon a complaint wherein petitioner A. C. Mullins and B. G. Larkins were jointly charged with the murder of one Frank Duke, in Tulsa county, on the 19th day of December, 1920. It appears that an application for bail in the district court of Tulsa county was heard and denied on the 17th day of February, 1921.

It is averred that the proof of his guilt is not evident nor the presumption thereof great, which will . appear from a transcript of the testimony taken upon said preliminary examination attached to said petition.

It would serve no useful purpose to detail the testimony, and in view of a trial before a jury to do so would possibly be prejudicial to petitioner. The testimony shows that on the date alleged petitioner and his co-defendant drove to a roadhouse near Tuls,a, accompanied by the wife of the deceased ¡and another womian; that the deceased followed them, reaching the roadhouse as the defendants were leaving, and following them back to the city he overtook them on North Main street, and called to his wife to stop; that she told petitioner that it was her husband and not to shoot him; that as the car in which the deceased was riding came alongside the car in which petitioner was riding, he shot the deceased. The hour was shortly after midnight, and death resulted from the gunshot wound three or four hours later.

As a witness in his own behalf petitioner testified that he did not know who was in the car, that he heard the deceased say, “Stop, you sons of bitches, or I will kill you,” and believing that they were highjackers he pulled his gun and fired.

After careful examination and consideration of the record, we are of opinion that petitioner has not met the burden placed upon him by law, and is not entitled to bail as a matter of lawful right. Our conclusion is based upon the settled rule of this court that upon an application for bail by writ of habeas corpus after commitment for a capital offense before an examining magistrate, the burden is upon the petitioner to show' that he is illegally deprived of his liberty; that is, the burden is upon him to show facts sufficient to entitle him to bail when said facts do not appear from the evidence on the part of the prosecution.

It is therefore considered and adjudged that the writ be refused and bail denied.

MATlSON and BESSEY, JJ., concur.


text:
    CLAUDE CHEEVES v. STATE.
    No. A-3609
    Opinion Filed Dec. 1, 1920.
    Rehearing Denied April 6, 1921.
    (196 Pac. 726.)
    I Syllabus.)
    1. LARCENY — Grand Larceny — Sufficiency of Evidence. In a prosecution for larceny evidence tersely stated in the opinion, held sufficient to support the verdict.

      2. EVIDENCE — Possession of Other Stolen Property. In a prosecution for larceny, where the defendant’s possession of property, charged to have been stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property.
    3. SAME — Possession by Codefendant. In a prosecution for larceny, where there was evidence tending to show that the defendant and his codefendants acted in concert and participated in the larceny, evidence showing possession by a eodefendant of a part of the stolen property was competent and admissible, in connection with evidence that a part of the stolen property was found in the possession of the defendant.
    4. SAME — Kes Gestae — Explanations by Defendant. In a prosecution for larceny, what the defendant said in explanation of his nossession of a part of the stolen goods, immediately upon its discovery with him, is a part of the res gestae and as such admissible in evidence in his favor as well as adversely to him.
    2. APPEAL AND ERROR — 'Record—Excluded Testimony. Error cannot be predicated upon a ruling excluding testimony, where the testimony desired is not shown in the record, nor any statement made as to what the proposed testimony would be.
    6. TRIAL — Exclusion of Testimony — Offer of Proof. In order to preserve an available objection to the exclusion of testimony, a proper question must be asked, and when objection thereto is sustained, an offer must be made showing what testimony will be given if the witness is permitted to answer. This is proper, in order to enable the trial court to determine whether the testimony is competent, and is necessary to present any question on appeal.

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

    Claude Cheeves was convicted of grand larceny, and he appeals.
    Affirmed.

      A. J. Taft, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered upon the verdict of a jury finding- the defendant, Claude Cheeves, guilty of the crime of grand larceny and fixing his punishment at five years’ imprisonment in the penitentiary.

The information, in substance, charges that in Comanche county, on the 5th day of June, 1918, Claude Cheeves, Will Nicholson, and J. E. Knight did then and there steal certain personal property, consisting of shoes, shirts, underwear, silk handkerchiefs, neckties, clothing, a bolt of silk, six hams and some bacon, all of the aggregate value of $495, the personal property of O. M. Murray and Walter Davis.

A severance was granted, and the defendant Cheeves was tried on the 21st day of February, 1919.

The principal question in the case appears to be whether or not the evidence is legally sufficient to sustain the conviction.

The evidence shows that Murray & Davis, a partnership, conducted a mercantile business at Chattanooga, their store being on the Comanche county side of the street. On the night of the 3>lst day of May, 1918, the store was broken into, and the merchandise described in the information was stolen. A week before the store had been broken into, and about $400 worth of goods stolen. The defendant Cheeves lived at Duncan; the defendant Nicholson lived five or six miles southeast of Duncan; the defendant, Knight, lived west of Duncan.

O. M. Murray, of the firm of Murray & Davis, testified that about 60 days after the goods were stolen he identified some of the goods in the sheriff’s office at Duncan; that he went with the county attorney and three deputy sheriffs to the defendant Nicholson’s place, and there found a part of the stolen goods, and from there they went to the defendant Cheeves’ place in Duncan, and there found some more of the stolen goods; including the trousers that Cheeves had on; that from there. they went to Knight’s place, and there found a part of the .stolen goods. He identified certain goods found at Cheeves’ place by the brands, stock marks, and price marks thereon; that some of the goods found in the 'Cheeves’ home were in a folding bed and some were between the mattress and springs of a bed; that the value of the goods taken that night was over $500; that the same were not taken with his knowledge or consent.

On cross-examination he was asked:

“Q. Didn’t this defendant tell you at that time those things did not belong to him? A. He said the pants did not belong to him; that a young man named Eddie Knight had left a shirt and the pants there.”

Another witness employed as a clerk by Murray & Davis identified by the stock and price marks thereon certain merchandise offered in evidence that was found in the possession of the defendant, Cheeves, as a part of the-goods taken, including some bolt silk.

Will Justice testified:

“I live at Chattanooga. „The next morning after the store was robbed I looked in the alley behind the store. I could see two auto tracks that looked a little fresher than others that came up to the alley by the old ice house. I could see where one car came along and another behind it, and then the tracks hit the street going east. I was with the officers at the defendant’s place when Mr. Murray identified the goods found. When we went to Cheeves’ place all.he said as to where he got the goods was that the coat to match the pants he had on was in the house. We went in the house, and he sat on the bed. I took a coat from the closet and said to him, ‘Is this the mate to those pants you have on?’ he said, ‘Yes;’ I said, ‘How long have you hadi this suit?’ he said, ‘about a couple of months;’ I said, ‘Where did you get this suit?’ and he would not give me an answer. That is all he had to say about any of the stuff in any way. I arrested him, and brought him back with me.”

I. B. Gossett, city marshal of Duncan, testified:

“I am acquainted with the defendants. I have seen them together. I have not seen Nicholson with them much, but I have seen the other two together lots. The defendant Cheeves is tall and slim.”

J. C. Peiry testified:

“I run a grocery store at Faxon, and as I was going home the evening of the night that the store at Chattanooga was robbed I saw a strange car come into Faxon from the east. The an driving the car was a slim spare made fellow. The car stopped about a quarter of a mile from my home. In a few minutes another oar stopped 'there. They were there about 10 minutes, and then both went on towards Chattanooga.”

S. M. Vandergriff testified:

“1 live at Duncan. Ie am deputy sheriff, and acquainted with the defendants Cheeves, Nicholson, and Knight. I was out at Nicholson’s place in July looking for automobile accessories, and found some bolts of silk and some automobile tires. I took the silk and delivered it to the sheriff. About August 12th, I was with Mr. Murray and the others when they searched the defendant Cheeves’ place. We found a suit of clothes and. some dress goods. I don’t remember exactly. The defendant Cheeves was there.” .

The merchandise identified by the witnesses was offered in evidence. When the state rested, the defendant moved the court to direct a verdict of not guilty, and to discharge the defendant, for the reason “that there is no evidence in this case sufficient to connect the defendant with the commission of the crime charged.” The motion was overruled, and the defendant excepted.

Joe Rhinefort, called as a witness for the defendant, testified:

“I was in the house some of the time and outside' some of the time. I was around there when these-goods were taken from the possession of the defendant.”

He was then asked:

“Q. Will you tell the jury what Claude Cheeves said about the goods at the time you took them from him.”

To this question the state objected. The objection was sustained, and the defendant excepted.

Will Nicholson testified:

“I am one of the defendants. I live in New Mexico, in June and July, 1918, I lived six miles south east of Duncan. Claude Cheeves planted cotton for me in May, 1918. I paid him $1.50 per day in money and his board. My brother Otto was staying with me a part of the time. He went to the army .June 24th, and he has been discharged. In May, when Cheeves was working for me, he bought some silk handkerchiefs and a piece of silk from my brother Otto, and took it home with him when he left there. I remember when the officers came out and got some automobile tires out of my barn. I could not say where my brother got the silk and silk handkerchiefs he sold to Cheeves. When my brother went to the army he left those things there in his trunk, and the. trunk was in my house. That is all I had to do with them.”

The defendant herein did not testify.

The presumption arising from the possession of stolen property is one of fact, and not of law, and possession of property recently stolen, unexplained, is a circumstance to be considered and given such weight as the jury may see fit. The jury is the sole judge as to what weight should fee given this circumstance; and, even though the defendant makes no attempt at explanation of the possession, the jury would not fee authorized to convict unless from all the facts and circumstances in the case, after giving such weight as they see fit to such possession, they believe the defendant guilty. Cox v. Territory, 2 Okla. Cr. 668, 104 Pac. 378.

Mr. Bishop says:

“When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.” 2. Bish. New. Cr. Proc. par. 740.

In order to establish the defendant’s guilt .it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the premises about the time the larceny was committed. It rarely happens that perpetrators of an offense,' committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

The instructions fairly submitted the law of the case, and no objection was made or exception taken to any of them. The court instructed the jury that unless they believed beyond a reasonable doubt that the defendant, acting alone, or in conjunction 'with others, stole the goods, they should acquit, and that they should acquit if the circumstances in evidence were inconsistent with any other conclusion or hypothesis than that of the guilt of the defendant, and further instructed that:

“The mere fact that the defendant is found in possession of recently stolen property is not, within itself alone, sufficient to justify a conviction, unless there are other circumstances and proof in evidence which, together with such possession, convinces you beyond a reasonable doubt of the defendant’s guilt of the crime charged.”

The record shows that the proof of the defendant’s guilt does not depend alone upon the proof of possession of a part of the stolen goods,. There were other incul-patory circumstances in evidence, and, carefully considering all the evidence, our conclusion is that it was amply sufficient to sustain the verdict of the jury.

Some exceptions (were taken-on the trial to the rulings of the court, but in the motion for new trial and in the petition in error no reference is made to the rulings of the court.in the admission and rejection of evidence. However, in his brief the .defendant complains that the court erred in admitting over his objections evidence Ishowing that a part of the stolen goods were found in the, possession of his codefendants Nicholson and Knight. If the defendant and his codefendants, as the evidence tends to show, were together when the goods were stolen, and participated in the larceny, evidence showing possession of a part of the stolen goods by any one of them, recently after the theft, was competent and admissible as a circumstance tending to show’the guilt of the defendant, and was properly allowed to go to the jury to be considered by them in connection with the other circumstances.

The defendant also states that—

“All of the evidence introduced by the state in regard to any automobile accessories found at Cheeves’ house or Nicholson’s home was incompetent for any purpose, and should have been ruled out and taken from the consideration of the jury.”

It is said in Ruling Case Law that:

“In cases of larceny, if properly connected, the proof that other stolen property was found in the possession of the defendant with the property charged to have been stolen is. admissible for any of four purposes: (1) To prove felonious intent; (2) to prove that the alleged theft was a part of a continuous transaction or scheme of larceny; (3) to identify the defendant; (4) to identify the stolen property. In all of these cases, however, it must not only be shown that the defendant was found in possession of the property, and that it was stolen; but, in addition thereto, it must appear from the proof that there was some connection between it and the property charged in the indictment to have been stolen.” 17 R. C. L. p. 76.

In Davis v. State, 7 Okla. Cr. 322, 132 Pac. 560, it is said:

“When the defendant’s possession of property, recently stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property.”

The defendant also complains that the court erred in refusing to allow the witness Rhinefort to answer the question :

“Will you tell the jury what Claude Cheeves said about the goods at the time you took them from him?”

At the common law, when stolen goods were discovered in possession of ’a party recently after being stolen, what he said in explanation of his possession of the property immediately upon its discovery with him and before he had time to concoct a story is a part of the res gestae, and admissible as such. 2 Bish. Crim. Proc. par. 746; Whart. Crim. Ev. (9th Ed.) par. 761; Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782; Smith v. Territory, 14 Okla. 518, 79 Pac. 214.

What the defendant said in this case, immediately upon the discovery of a part of the stolen goods at his place, was admissible in evidence in his favor, as well as adversely to him. However, the record here shows that no offer was made as to what the witness would testify to if permitted to answer. The necessity for the offer, as to what the proposed testimony would 'be, where an objection to a question is sustained, is stated in 3 C. J. p. 825, par. 736, as follows:

“As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibilty.”

Error cannot be predicated apon a ruling excluding testimony, where the testimony desired is not shown in the record, nor any statement made as to what the proposed testimony would be. White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Warner v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271.

Upon a careful consideration of the record in this cabe and all questions involved therein, we find no error justifying a reversal. Accordingly, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    WILL NICHOLSON v. STATE.
    No. A-3608
    Opinion Filed Dec. 2, 1920.
    Rehearing Denied April 6, 1921.
    (196 Pac. 730.)
    (Syllabus)
    LARCENY — Sufficiency of Evidence — Grand Larceny. In a prosecution for grand larceny, evidence held sufficient to support the conviction.

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

    Will Nicholson was convicted of grand larceny, and he appeals.
    Affirmed.

      A. J. Taft, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Will Nicholson, was convicted of grand larceny, and his punishment fixed at five years’ imprisonment in the penitentiary. From the judgment rendered in pursuance of the verdict, on the 22d day of February, 1919, he appeals. The information jointly charged Claude Cheeves, Will Nicholson, and J. E. Knight with the crime of grand larceny, alleged to have been committed in Comanche county on the 5th day of June, 1918.

The errors assigned are that the verdict of the jury is contrary to law and 'to the evidence, and that the trial court erred in its instructions.

This is a companion case to that of Claude Cheeves v. State, ante, p. 480, 196 Pac. 726. The same witnesses testified, and the evidence on the part of the state was the same as the evidence in the Cheeves’ case. The statement of the evidence in the opinion in the Cheeves’ Case is sufficient, without reciting it in this opinion.

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

“I don’t know as ' I could tell exactly how those goods came to my house. All I know is they were in my brother’s trunk, and that he put them in there, and, when he got ready.to go to the army he left the trunk there. The trunk has been in toy house ever since I was married. Whenever I would move I always moved it with me. The lock on the trunk was broken, and so the trunk was never locked-. My brother is not in the army now.”

Claude Cheeves, codefendant, testified:

“I am one of the defendants, and I was convicted. Otto Nicholson, the defendant’s brother, and I were down at Ragtown, and we bought these goods down there. When we came back we stopped at the defendant’s house and divided them. He left his half there, and put them in his trunk. I took my half home. We paid $50 for the whole bunch.”

The questions in this case are the same as those fully, passed upon and decided in the Cheeves’ Case. We see no reason to doubt that this conviction was justified by the evidence.. The trial .was in all respects fair, and we are unable, after a careful examination, to find anything in the record sufficient to warrant this court in interfering with the verdict and judgment of conviction. The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.