text:
    FRANK HENDRIX v. STATE.
    No. A-3794.
    Opinion Filed March 25, 1922.
    (204 Pac. 535.)
    Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.
    Frank Hendrix was convicted of grand larceny, and he appeals.
    Affirmed.
    Geo. W. Martin, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Frank Hendrix, and John Bradley, were jointly charged, tried, and convicted of the crime of grand larceny. The jury were unable to agree upon the punishment. The court rendered judgment and sentenced each of said defendants to imprisonment in the reformatory at Granite for the term of two years. From the judgment an appeal was- perfected by filing in this court on June 7,1920, a petition in error with case-made.

At a former term the appeal of plaintiff in error Bradley was dismissed on the ground that said plaintiff in error was a fugitive from justice (18 Okla. Cr. 503, 200 Pac. 788).

No brief has been filed in behalf of plaintiff in error, Hendrix, and when the case was called for final submission, it was submitted on the record.

Upon the record before us we see no reason to doubt that this conviction was justified by the evidence. The trial was in all respects fair and w& are unable, after a careful examination, to find anything in the record sufficient to .warrant this court to interfere with the verdict and judgment of conviction. The judgment is therefore affirmed.


source: Caselaw Access Project

author: PER CURIAM-

license: Public Domain

text:
    R. C. PAMPLIN v. STATE.
    No. A.3841.
    Opinion Filed March 25, 1922.
    (204 Pac. 1119.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    R. C. Pamplin was convicted of willfully and unlawfully discharging a revolver in a public place, and he appeals. On motion to dismiss appeal.
    Appeal dismissed, and cause remanded.
    Giddings & Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., and E. L. Fulton. Asst. Atty. Gen., for the State.
   PER CURIAM-

R. C. Pamplin was convicted on a charge that he did willfully and unlawfully discharge a revolver in a public place, and on the 25th day of February, 1920, in accordance with the verdict of the jury, was sentenced1 to pay a fine of $150 and be confined in the county jail for a period of 120 days. From the judgment an appeal was attempted to be taken by filing in this court on August 23, 1920, a petition in error with ease-made.

On March 22, 1922, the Attorney General filed a motion to dismiss the appeal, which reads as follows:

“Plaintiff in error is charged in the information with the crime of unlawfully discharging a pistol or revolver in a public place, which offense under the statute is a misdemeanor, but the judgment or final order complained of was rendered in the trial court on the 25th day of February, 1920, and the record in said case was not filed in this court until the 23d day of August, 1920, which is more than 60 days from date of the rendition of said judgment, and the trial court made no order extending the time in which such appeal should be taken, and, in addition thereto, said appeal was not filed in this court within the extension of time which the court might have granted, for all of which reasons this court is entirely without jurisdiction to hear and determine said appeal.”

An examination of the record discloses that the motion to dismiss the appeal is well taken. The purported appeal herein is therefore dismissed, and the cause remanded to the trial court forthwith.


author: PER CURIAM.

text:
    Ex parte NOEL BURTON.
    No. A-4169.
    Opinion Filed March 18, 1922.
    (205 Pac. 193.)
    Noel Burton, after preliminary examination on charge of murder, was held without bail, and he brings habeas corpus to be admitted to bail.
    Writ denied, and bail refused.
    Crump, White & Seawel, for petitioner.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for respondent.
   PER CURIAM.

In this proceeding petitioner, Noel Burton, by his attorneys, filed in this court on January 10, 1922, a petition wherein it is averred that be is unlawfully restrained of bis liberty and imprisoned in tbe county jail of Mayes county by Jobn A. Birchfield, sheriff of said county, under and by virtue of a commitment issued by J. C. Chandler, justice of the peace of Pryor Creek district, upon a preliminary examination wherein petitioner was charged with the murder of one J. R. Thornton, and that his illegal detention consists in this, to wit, that under the evidence introduced on his preliminary examination the proof of his guilt is not evident, nor the presumption thereof great, and that petitioner is not guilty of the crime of murder; that oh the 10th day of December, 1921, he filed an application for bail before Hon. A. C. Brewster, district judge then sitting at Pryor; and that upon a hearing before said judge bail was denied. A transcript of the testimony taken upon the preliminary examination is annexed to, and made a part of, his petition.

The testimony developed upon the preliminary examination tends substantially to show the following state of facts: That J. R. Thornton, deceased, age 24 years, lived two or three miles east of Saline; that the defendant was a foreman on a railroad construction crew with a camp not far from the home of the deceased; that men in the camp had been buying milk, butter, chickens and eggs on credit until pay day from the family; that on the evening of this shooting there was discussion about how much one or two of the men owed. The’ deceased and his brother were present, and the defendant, and they were all drinking whisky together, with three or four other men. A man came up and told the defendant that his father; wanted to see him. He left, saying that he would, not be gone long, about 15 minutes; he came back with a Winchester and said, “I have this Winchester, it has 16 loads in it, and you son of bitches scatter.” The deceased said, “What is the matter, Noel? I am your friend.” The defendant said, “You are not my friend; this- is all the friend I have got, ’ ’ and patted the Winchester on the stock; the defendant’s father walked np and said to the defendant, “Go on,” and the defendant raised the gun and shot Ott Thornton, brother of the deceased, through the, leg. He fell. The deceased started to run away, and the defendant fired four shots at him, afi which time the defendant’s father took the gun from him. When he was shot deceased fell.

The doctor who was called to attend him testified that the bullet entered the body just.back of the median line, about the seventh rib, and entered the right lung;- that the shooting occurred on Sunday, and the deceased died Wednesday morning as a result of the gunshot wound.

The defendant did not take the witness stand in:his own behalf.

The settled rule of this court is that upon an application for bail by writ of habeas corpus, after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Under this rule, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, bail will be refused where, as in this case, the commission of the homicide having been admitted, the defendant does not take the witness stand on the preliminary examination, and does not elect to testify in support of his application for bail.

Upon a consideration of all the evidence presented in support of the application in this ease, we are of opinion that petitioner is not entitled as a matter of right to be admitted to bail. It is therefore considered! and adjudged that the writ be denied, and bail refused.


author: MATSON, J.,

text:
    In re SAM WATKINS.
    No. A-4252.
    Opinion Filed March 18, 1922.
    (205 Pac. 191.)
    Sam Watkins was convicted of murder and sentenced to death by electrocution. On the request of Governor J. B. A. Robertson for an opinion by the Court of Criminal Appeals as to the validity of the conviction, the conviction and sentence held/ to accord with the law;
   MATSON, J.,

delivering the following opinion:

Hon. J. B. A. Robertson, Governor of the State of Oklahoma — Sir: Responding to your official communication presenting for. the consideration of the judges of this court the record of the conviction of Sam Watkins on the 13th day of February, 1922, in the district court of Atoka county to suffer death by electrocution for the murder of one Cora Jones, in said county, on or about the 8th day of February, 1922, and fixing May 5, 1922, as the date of execution, the following opinion is respectfully submitted:

Attached to your communication is a duly certified transcript and case-made containing all the proceedings leading up to the conviction and judgment sentencing the said Sam Watkins to death by electrocution, and the same is found to fully comply with the requirements of section 5968, Revised Laws of 1910.

Such record shows that Ira J. Banta, the county attorney, of Atoka county, after defendant had waived preliminary ex-animation and had been held to answer said charge, filed an information in the district court of said county on the 13th day of February, 1922, charging the said Sam Watkins with the murder of one Cora Jones, alleged to have been committed in said county on or about the 8th day of February, 1922; and on the 13th of February the defendant, Sam Watkins, was present in person in open court, was duly arraigned upon the said charge of murder, was informed of his right to counsel before a plea was accepted, and upon being so informed announced to •the court that he (did not desire counsel, but desired to plead guilty to the charge, and thereupon in' open court entered his plea of guilty to the crime of murder as charged in the information.

Thereupon the court had sworn and heard the testimony of four witnesses for the, purpose of determining'the punishment to be assessed against the defendant. These witnesses had examined the premises where the homicide took place shortly thereafter and gave detailed descriptions of evidence of a prolonged struggle by the deceased in defense of her life. The deceased had been killed at her residence on a farm, and there were spots of blood discovered in certain parts of the house and in a shed room that was there. The body was found out of doors near the shed. The scalp was practically all gone, and also the left side of the face and a part of the fingers on the left hand, and there was some testimony that hogs had been eating on the body before it was found. The defendant confessed the killing and said that he had gone to the deceased’s house and asked her to have sexual intercourse with him, and that deceased “got mad and he hit her; he did not know how many times; that he lost his mind, and when he came to he had killed her.” Defendant was given an opportunity to cross-examine these witnesses.

At the conclusion of the testimony the following proceedings were had:

The Court: You may stand up, Mr. Watkins.

Now, Mr. Watkins, you have entered your plea of guilty to this charge, and you understand now that it will be the duty of the court to pass sentence upon you, do you?

Defendant,1 Sam Watkins: Yes, sir.

The Court: You know what you are doing in entering' your plea here, do you?

Defendant, Sam Watkins: Yes, sir.

The Court: Have you anything to say now to the court why the judgment of the court should not be pronounced against you?

Defendant, Sam Watkins: Do! bow, Judge?

The Court: I say, have you anything that you want to> say as to why you should not now be sentenced?

Defendant, Sam Watkins: I just want the mercy of the court to spare me long enough to get forgiveness for what I have done and I am sorry I have done. I would give what I have if I could call it back. I would never do it any more. I am praying to the Lord to forgive me for this; I am doing all I can.. I want to do! what' is right, and I am willing to do, and I ask them to be on the side with me. Nobody knows how I am' but myself.

The Court: Are you ready now to be sentenced?

Defendant, Sam Watkins: Yes, sir.

Thereupon the court pronounced judgment upon the plea of guilty and sentenced the defendant, Sam Watkins, to suffer death by electrocution in the state penitentiary at McAlester, Okla., on the 5th day of May, 1922.

The questions presented are: Has there been an observance of all the formality of law essential to the taking of human life? Has the trial, conviction, and sentence of death been in accordance with the law of the land?

A careful examination of the record before us convinces this court that the above questions must be answered in the affirmative. The information sufficiently charges the crime of murder. Upon arraignment the defendant was' notified of his right to counsel and informed the court that he did not desire counsel. Defendant was not permitted to enter his plea of guilty to the crime charged until after he had been informed of all his constitutional and statutory rights. It appears that the defendant was fully cognizant of the consequences of that plea before the same was accepted and judgment and sentence pronounced by the trial court. That the trial court, upon a plea of guilty to the crime of murder, is authorized to assess punishment by death, and that said statute is constitutional and valid, is the holding of this court in the following opinions: In re Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028; In re Opinion of the Judges, 18 Okla. Cr. 598, 197 Pac. 546.

In the latter case, construing the provisions authorizing the trial court to assess the death penalty on a plea1 of guilty to murder, it is said:

“It is evident that the foregoing provisions of the section quoted were not designed to abrogate the well-established rule of the common law by which a party indicted for a capital crime may enter a plea of guilty thereto, if he sees fit so to do. In such cases there is no issue to be submitted to a jury on which a verdict may be rendered or the punishment assessed. It is for the court to determine whether the defendant shall be punished by death or imprisonment for life at hard labor.”

Procedure followed by the trial judge in hearing the testimony of witnesses as to the enormity of the crime before assessing tbe death penalty was proper and to be commended-Section 5954, Rev. Laws 1910.

Upon the record before us we conclude, and it is our opinion, that the defendant, Sam Watkins, has been adjudged to* suffer the extreme penalty of the law in the manner prescribed by law, and that his conviction and sentence of death has been in accordance with the law of the land.

DOYLE, P. J., and BESSBY, J., concurring.


text:
    LILLIE SMALL v. STATE.
    No. A-3187.
    Opinion Filed June 29, 1920.
    Rehearing Denied Nov. 28, 1922.
    (210 Pac. 317.)
    Appeal from County Court, Oklahoma County; William H. Zwick, Judge.
    Lillie Small was convicted of maintaining a liquor nuisance, and she appeals. Modified and affirmed.
    Modified and affirmed.
    Blake & Boys, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Oklahoma county, wherein the defendant, Lillie Small, was convicted of maintaining a' liquor nuisance at 31 East, Fourth street in the city of Oklahoma City and her punishment fixed at a fine of $320 and imprisonment in the county jail for a period of 90 days.

It is first contended that the information does not state facts sufficient to state an offense against the laws of the state. The information is based upon section 13, eb. 70. Sess. Laws 1910-11 wbicb reads in part as follows:

“All places where any spirituous, vinous, fermented, or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of 1 per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, is manufactured, sold, bartered, given away, or otherwise furnished in violation of any provision of this act, and all places where any such liquor is kept or possessed by any person in violation of any provision of this act, and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

The charging part of the information is as follows:

“On the 1st day of January, 1917, and thence continuously until and including the 20th day of February, A. D. 1917, in Oklahoma county, state of Oklahoma, Lilly Small, whose more full and correct name is to your informant unknown, then and there being, did then and there willfully and unlawfully commit and maintain a public nuisance, in that the said Lilly Small did then and there during all of the times aforesaid, knowingly, willfully and unlawfully keep and maintain a place, to wit, at No. 31 East Fourth street in Oklahoma City, county and state, where malt, spirituous vinous and fermented liquors, not preparations compounded by a licensed pharmacist, capable of being used as a beverage, and containing more than one-half of 1 per centum of alcohol, measured by volume, to wit, beer and whisky, were received, kept and possessed by her, the said Lilly Small, to sell, barter, give away, and otherwise furnish such liquors to others in violation of law, to the common nuisance of the public.”

Tbe information is good under tbe statute. It charges tbe reception, possession, and keeping by tbe defendant at 31 Bast Fourth street in Oklahoma City of beer and whisky (overt acts on her part) coupled with tbe purpose then and there to sell, barter, give away, and otherwise furnish such liquors to others in violation of law and to the common nuisance of the public.

This prosecution is not based upon the statute held to be unconstitutional in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pas. 771, and the decision of this court in that case has no bearing upon the question here presented as to the sufficiency of the information here attacked.

The statute here involved possessed the elements both of overt acts and guilty intention found lacking in the statute construed in the Proctor case and the information is sufficient. Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143.

It is also contended that the evidence is wholly insufficient to support the conviction. With this contention we are unable to agree.

The entire evidence of the state was directed to the maintenance of such nuisance only on the 20th day of February, 1917, but there is competent evidence of the commission of the offense upon that date. This was sufficient. Ostendorf v. State, supra.

Certain evidence of the alleged reputation of the place as a “booze joint” was permitted to be received by the jury.

Concerning this evidence the brief of the Assistant Attorney General contains the following comments:

“We also admit that the evidence submitted as to the reputation of the house, as a matter of law, would have been improperly submitted to the jury had the defendant moved the trial court to withdraw from their consideration this reputation evidence. But this was not done; nor was there a request for an instruction limiting the consideration to be given to this evidence.
“The court would have excluded this evidence of reputation for the reason that it was special reputation instead of general reputation; that is, it was such color that one man speaking over a telephone can give to an individual or to a place. Reputation is defined in volume 7, Words & Phrases, p. 6119, as follows: ‘Reputation is defined to be the concurrence of many voices to the same fact. Deputy v. Harris (Del.) 40 Atl. 714, 715, 1 Mary. 100.’
“ ‘Reputation is said to be the common knowledge of a community. Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308, 11 L. R. A. 784 (cited in Smith v. Compton, 52 Atl. 386, 388, 67 N. J. Law, 548, 58 L. R. A. 480).
“ ‘Reputation, as used in a question to a witness as to the reputation of a witness whom it was sought to impeach, meant general reputation. French v. Millard, 2 Ohio St. 44-50.’
“However, the defendant, having failed to request the court to instruct the jury to disregard this testimony as to the reputation of the place, she cannot for the first time complain to this court.”

We consider the foregoing remarks of the Attorney General entirely apropos. While the proper procedure was not followed in the trial court correctly to present the question of the admissibility of this alleged reputation evidence on appeal to this court, is clearly apparent in view of the severe punishment imposed that this reputation evidence, not being directed to the general reputation of the place, tended to the prejudice of the defendant.

Under the circumstances the conclusion is reached that substantial justice requires that the judgment of the trial court be modified to provide a fine of fifty dollars ($50) and imprisonment in the county jail for a period of thirty (30) days, the minimum punishment provided by law, and the judgment of the county court of Oklahoma county in this ease is modified to that extent and as so modified is affirmed.


author: BESSEY, J.

text:
    Ex parte J. W. FINNEY.
    No. A-4223.
    Opinion Filed March 18, 1922.
    (205 Pac. 197.)
    (Syllabus.)
    1. Arrest — Officers Making Arrests Without Warrant — Duty to Avoid Use of Violence. Peace officers, haying, or assuming to have, authority to make arrests without a warrant, must exercise such authority with discretion, as the law directs, so as not to jeopardize the lives and lawful pursuits of innocent people. Peace officers are as much amenable to the law as other persons, and they must not use their official authority as a cloak to violate the law. Even where a suspected person has committed a felony, an officer will not be justified in taking life where the arrest can be made without violence.
    2. Same — Arresting for Felony upon Suspicion — Reasonable and Probable Gounds. — Where officers or others have authority to make arrests upon suspicion that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that suspicion. Suspicion without cause can never be an excuse for such action. The two must both exist and be reasonably well founded.
    3. Same — Homicide—Offioeir not Justified in Killing a Person Fleeing. A peace officer will not be justified, in killing a person sought to be arrested who fled from him, where the officer acted on a mere, indefinite suspicion, and no felony had in fact been committed.
    4. Same — Habeas Corpus — Homicide—Unexplained' Act of Posse Shooting into Unidentified Automobile Occupied by Unknown Persons. In an application for bail, where it appears that several shots were fired at close range by the officer’s posse into a moving unidentified automobile occupied by unknown persons, on suspicion that the driver of the car may have committed a felony, killing two innocent women, the presumption arises that the members of the posse intended the ordinary and probable consequences of such shooting.
    (a) Under such unexplained circumstances the shooting would indicate an intent to kill or maim and at least evinced a depraved and malignant purpose, regardless of human life, which may amount to murder.
    5. Same — Hiomicide—Person Assisting in Illegal Arrest in an Illegal Way Resulting in Killing Held Responsible Though Fatal Shots Fired by Others. If an attempted arrest is unlawful and without justification, each person participating will be held responsible for the illegal acts of the others done pursuant to a common criminal design, in this case a design to consummate an illegal arrest in an illegal way. The common purpose need not be to commit the particular, crime that was in fact committed. The leader of a band of men engaged in an illegal undertaking cannot escape criminal responsibility on the ground that he himself may not have fired the fatal shots.
    Application by J. W. Finney for babeas corpus to be admitted to bail pending two charges of murder.
    Writ "denied.
    Claud Duval and Tom W. Neal, for petitioner.
    Geo. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   BESSEY, J.

This application for a writ of habeas corpus is made for the purpose of having this petitioner admitted to bail on two charges of murder pending against the petitioner in the district court of Kay county, Okla., wherein it appears that two innocent women were killed when this petitioner and several other men attempted to make an arrest of the driver of an automobilé in which the deceased women were passengers.

The salient facts in the record before us disclose that on the/evening of the 11th of January, 1922, the jailer at New-kirk, then in charge of the sheriff’s office, telephoned to the central office at Kaw City, about 18 miles distant, to get some officer to talk to the jailer. Later some person, whose name the jailer did not remember, talked to the jailer, stating that he was a commissioned officer. The jailer told this person that there was a Hudson Super-Six car beaded that way, driven by a man with about a week’s growth of beard and wearing a fur cap, and that he (the jailer) had information that it might be a whisky car or a “wet car,” suggesting that the Kaw City officer give it, as the jailer expressed it, “the once over. ’ ’

The person who received this telephone communication at Kaw City was a Mr. Hungerford, who went to a moving picture show, where he found the petitioner, Finney, and informed him concerning the jailer’s message. At this time the petitioner was city marshal, and also had a commission as deputy sheriff. These two, with several others, procured two ears and drove out towards Newkirk, and at a point near the Indian Agency called Washunga they parked their cars across the road, one on either side, so that other cars passing would be compelled to pass between the two, through a space just wide enough to permit passage. Here and in this manner these parties awaited the coming of the suspicious car. Presently another posse was organized and armed in Kaw City, and they in another car came to the place where these two ears were parked. About this time the exhaust of a moving car was heard in the distance, and this last car with several occupants, detoured in that direction towards Newkirk. Soon after a Ford car, without lights and with the curtains drawn, slowly approached the place where the two cars were parkeci across the road, followed by a third car, which had detoured to its rear.

There were six occupants in this closed Ford car: Burril Rhoten, the driver, living near Kaw City; Mrs. Bousman, a neighbor; Mrs. Skinner, another neighbor; Mrs. Bliss, of Tulsa, Okla., and her little daughter; and Irvin Dubock, a young man employed in the neighborhood — none of whom were accused of violating any law. They had left Newkirk on their return trip borne a little after dark. Eight or nine miles out of Newkirk their lights went out, and for that reason they were traveling slowly, and arrived at Washunga, where the two ears were parked, about 9:30. As the driver approached the space between the two parked ears he shifted gears into low and proceeded very slowly, in order to pass through between the cars without striking either, which he did, without being interrogated here by any of the posse there assembled. When the third car following arrived, a moment later, some one of the party said. “That looks like a suspicious car.” Thereupon the petitioner and a man named Butler got on the running boards of this third car, a Ford coupe, and drove past and ahead of this party of six in the closed Ford a short distance, where they stopped close to the side of the road, leaving their engine running! Butler and the petitioner dismounted and stood in or near the beaten tracks in the road, and it is claimed that they commanded the driver of the approaching closed car to stop. At this time a number of the posse were following closely in the rear, in one of the cars that had been parked, as before stated, If the petitioner or Butler commanded the driver of the closed car to stop, the driver either did not hear the command or was afraid to comply with the demand, in the belief that they were about to be robbed. However this may be, the driver of the closed Ford failed to stop, and as the car passed the coupe near where Butler and the petitioner stood both fired their pistols, and several shots penetrated the body and top of the closed! car from the rear, one shot killing Mrs. Bousman instantly, and another shot fatally wounding Mrs. Skinner, resulting in her death a few hours later. The. record shows that in all six or seven shots were fired', and that five or six penetrated the car containing the six occupants, the shots entering the body and top of the car at from three to six feet above the ground. Whether any of these shots were fired by any of tbe occupants of tbe car following does not clearly appear. Mrs. Bliss’ testimony was, in part, as follows:

“Q. Just relate tbe facts surrounding tbe shooting, tbe killing of Mi*s. Bousman and Mrs. Skinner. A. Well, I came to Kaw City Tuesday night to visit my sister Mrs. Bousman, and she wasn’t at home; she was at Newkirk visiting my sister Mrs. Marcus; and Brother had to send to town to get some things, and Mrs. Skinner, my brother’s wife, and I came with Burril Rhoten especially to get my sister and take her back, so I could visit with her before I went home; and we came up in the afternoon, and we started back very peaceably, and when we got out about eight miles of town we burned the lights out; I just can’t tell exactly, between eight and ten miles; and we had then to drive very slow because we were in the dark. It was moonlight. We could see fairly well, riding along very peaceably. When we got to Washunga — I believe that is the place — the two cars were setting there, one on one side of the road, and one on the other, and we had to drive between very slow. We pulled in between these cars and got quite a distance when they shot into us. That is the first I knew of anything.
“Q. You had turned the corner? A. Yes, and started towards Kaw. I am not sure of the directions there at Wash-unga ; we had turned the corner, I think.
“Q. All right; state whether there was a car following you in. A. Yes; I can’t just say positive, but about a mile before we turned the corner there was a car dropped in behind us, a Ford ear with very bright lights. I hoped the car would stay behind us till we got home; it helped to light up the road for us; the lights were wonderful that was on that ear; and this ear followed us. * * *
‘ ‘ Q. Did you notice any one in the road ahead of you before the shooting, a short while before the shooting took place? A. There was a man stood beside the big car we passed.
“Q. Did you bear any one make any cries for you to stop?' A. No, sir; nothing whatever. I heard nothing till I heard the reports of the gun.
“Q. Where were you sitting? A. In the back seat, on the left side.
“Q. Do you know which shots, numerically speaking, killed Mrs. Bousman and Mrs. Skinner? A. Well, both shots — • one shot didn’t kill them both. The third shot killed Mrs. Bousman, my sister, and the next one followed on and killed my sister-in-law, Mrs. Skinner.
“Q. That would be the third and fourth shots? A. Yes.
“Q. Are you acquainted with Mr. Finney, the defendant here? A. No, sir.
“Q. Did he come close to the automobile after the shots, after the shooting had taken place? A. Yes.
“Q. Did you there have a conversation with him? A. Yes; he demanded us to get out of the automobile.
“Q. And you got out? A. Yes.
“Q. And did he make a search of your person? A. Well, Mr. Dubock was the first one to get out of the car, and he ran his hands down over his person, his trousers and his coat.
“Q. Is he the only one? A. He put his hands on me to search me, and I asked him to step back, not to touch me, and he started back; I asked him not to put his hands on me.
“Q. What did he say? A. He says, ‘Rather cute, aren’t you?’ I said, ‘If you rob me, you’ll have to kill me like you have the two women in the car.’ ‘Killed two women?’ he said. I said, ‘Yes; you have killed my two sisters.’
“Q. Then what did he say? A. He told me to get back in the car and get to town as quick as we could and get aid.
“Q. You got in the car? A. I stood on the running board, and rode the car in because there was hardly room in the car after the women were killed.
“Q. You rode on the running board? A. Yes.
“Q. Did you see him any more that evening? A. Yes, sir.
“Q. Where? A. Well, at the big hotel in Kaw; I believe it is the Frisco Hotel.
“Q. Santa Fe? A. The big hotel; I am not acquainted there; right across from the garage.
“Q. You saw him there? A. Yes.
“Q. Did you have any conversation with him relative to the shooting? A. I did; yes.
“Q. What did he say to you? A. I jumped off from the car and went into the hotel and asked for the law. Several people came to me and asked me what was the trouble. I told them I wanted help; that some one had held us up and killed my two sisters. Some one; said, ‘There is the law, in the car.’ They pulled up to the sidewalk and I said, ‘Are you the law?’ He said, ‘I am.’ I said, ‘Well I want help; somebody held us up out here and killed by two sisters.’ He says, ‘I’m the guy, I’m the law and the man that dona the shooting, and what in the hell are you going to do about it?’
“Q. Did you have any other conversation? A. No, sir.
“Q. What did you do then? A. I went home, up to my brother’s.
“Q. Did you see him after that? A. No, sir.”

Parts of the testimony of Burril Rhoten, the driver of the car, were as follows:

“Q. Just state to the court all the facts surrounding the shooting. A. Well, we had come up here after Mrs. Bous-man and started back. We didn’t leave here until somewheres around 8 o’clock. It was nice and warm, so we wasn’t in any hurry to get back. We got down something like a mile west of Washunga and turned east, and as we turned east there was a car turned in behind us. We drove along slow; we hadn’t .any lights; the lights burned out up on the hill; and we were -driving along slow and got over to Wash. There was a couple of cars parked there. One was, setting across the road facing the north, and the other one was setting on the north side of ■the road, facing the east. There was just barely room to drive in between these cars. I came down on the south side of the road, and I had to stop and look the situation over. It 'kind of looked suspicious. I really didn’t understand what it all meant or anything about it, so I swung out a little bit to the left and kind of turned in between the two cars. I must have 'been there about a minute; just stopped and looked it over, how to get through; so I drove on through, and there didn’t any one say anything or try to. stop us or anything, so we ■turned south into Kaw City and got down the road just a little -ways—
"Q. How far? A. Well, something like 300 yards, pro'.bably, maybe something near 350 yards, and this car passed us and drove down about 50 yards.
“Q. Was that the car that had been following you all along? A. Yes; they drove on by us about 50 yards, and a •^couple of men got out and stepped over in the road. I was coming on down. I just figured — I couldn’t see to tell who it was, but I figured it was a holdup or something. We drove • on up within about "20 feet of them,, and I put my car in low ■ and drove up just as slow as I possibly could, and when I was .about 20 feet of them they stepped out of the road and let me pass. I drove along in 4 or 5 feet of them, and when we got by •something like 15 or 20 feet they commenced shooting at us. 'When they commenced shooting, I stopped, and they come on ■down to the car.
“Q. How) many shotsi_were fired, if you know? A. There must have been six or seven, anyway; not over seven. * * *
“Q. Did you hear any command given to stop your car? A. I did not.
“Q. He was within 15 feet of you when he stepped out -.of the way of the car, and he let you go on by, or did he not? ..A. Yes.
“Q. Did be make any motion'of any kind? A. No, sir.
“Q. Any indications that he wanted yon to stop? A. No, sir.”

Dr. Barker, the physician who examined Mrs. Skinner before she expired, said the bullet entered her head at the back part of the skull and lodged somewhere in the head. The hole was large enough to admit the first finger of his hand.

Dan A. Bain, the sheriff, testified in part as follows:

“Q. State your name. A. Dan A. Bain.
“Q. You are the sheriff of this county? A. Yes.
“Q. Did you have occasion to converse with the defendant, Finney, on the — shortly after the 11th day of January of this year, over the death of one Mrs. Dick Skinner and Mrs. Bousman? A. Yes, sir.
“Q. Will you relate that conversation to the court? A. It was the next night or next morning after the shooting; he told me he did the shooting; that he was the only one that did any shooting out there that he knew of.”

Part of the testimony of Paul M. Mead was as follows:

"Q. You are deputy sheriff of this county? A. Yes, sir.
“Q. Do you have that gun with you? A: Yes, sir. (Produces gun.)
“Q. I hand you Plaintiff’s Exhibit A and will ask you to state what it is and where you got it and to whom it belongs, if you know. A. It is a 45 double action Colt’s.
“Q. Where did you get it? A. Mr. Finney.
“Q. How long after the shooting? A. Well, I just don’t know exactly what time it was when we got home here.
“Q. Did you have a conversation with him, or did he in your presence state anything about the killing down at Kaw City? A. Well, not a great deal. I asked him what he did the work with.
“Q. What was his answer? A. This one here, this 45.
“Q. Were there any shells in it at the time you got it? .A. I think there were; yes.
“Q. It was loaded? A. Yes.”

On the hearing of this application for bail the petitioner testified that after the tragedy he decided that, since he was an «officer, he had a better chance of acquittal than the others connected with the affair would have, and; that he gathered several of them together in a car and went some distance into the country, where they held a conference and where it was «agreed that the petitioner, Finney, was to assume all the responsibility for the fatal shooting, and the facts should be so reported by all connected with it, and that in accordance with this agreement Finney stated to the sheriff and deputy sheriff that it was he who fired the fatal shots, but that in truth and in .-fact he (Finney) fired but two shots, and these two were fired unto the ground as the car containing the six persons passed.

Under the facts and conditions as recited it becomes the duty of this court to determine whether the proof is evident or the presumption great that petitioner, Finney, is guilty of murder.

The zealous, lawful efforts of peace officers in apprehending criminals should be commended and encouraged.- With -more or less personal risk to themselves they protect our lives, ■our homes, and our property. On the other hand, those having or assuming to have such authority must exercise it with discretion, as the law directs, so as not to jeopardize the lives ;and lawful pursuits of innocent people. Peace officers are as much amenable to the law as other persons, and they must not ■use their official authority as a cloak to violate the law. Even where the suspected party bas committed a felony, an officer will not be justified in taking life where the arrest can be made without violence. State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381; Williams v. State, 44 Ala. 41; Georgia v. O’Grady, Fed. Cas. No. 5,352; notes State v. Phillips (Iowa) 67 L. R. A. 299, 310; Jackson v. State, 66 Miss. 89, 5 South. 690, 14 Am. St. Rep. 542; 5 C. J. 424.

The petitioner here and his associates acted on an indefinite telephone message from the jailer to “look over” a supposed whisky; or “wet” car, a Hudson Super-Six. The name of the driver and the number of the car were unknown. The information, as it reached the petitioner, did not even disclose the factory name of the car, whether it was a Hudson or a Ford, or some other kind of a car, and petitioner did not know and made no inquiry as to whether in fact a felony had been committed.

Here was a closed Ford ear, whose occupants were unknown to the arresting party, and this car had just passed the members of the party unmolested. The parties sought to be arrested were surrounded on all sides by the meandering Arkansas river, Kaw City, and this armed posse, equipped with three cars. There was no excuse or occasion to use violence, because, if there had been a purpose on the part of the driver to resist arrest, under these conditions their escape was impossible and the use of violence, under any pretext, unnecessary. These people had committed no crime, and they had a right to resist an illegal arrest, though the proof here indicates that no resistance was in fact made. Notes and annotations State v. Hunter, 8 L. R. A. 535.

If the driver of this suspicious car was suspected of trans-. porting whisky, he would be suspected of a misdemeanor only, and no officer without a warrant would have the right to forcibly make his arrest, unless the offense was perpetrated in bis presence. Tbe law on this point is so well settled that extended authorities need not be cited. See notes State v. Hunter, supra.

Where officers or others have authority to make arrests upon suspicion that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that suspicion. Under such circumstances an officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to avoid mistakes. State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381; 5 C. J. 416, notes 17 Ami. Cas. 900; notes Wiley v. State, L. R. A. 1918D, 379.

No one, whether private person or officer, has any right to make an arrest without a warrant in the absence of actual belief based on actual facts creating probable cause of guilt. Suspicion without cause can never be an excuse for such action. The two must both exist and be reasonably well founded. People v. Burt, 51 Mich. 199, 16 N. W. 378; People v. Gordon, 40 Mich. 716. An officer making an arrest on authority of a telegram or private message does so at his peril. Janes v. Wilson, 119 La. 491, 44 So. 275.

In the case of Chandler v. Rutherford, 101 Fed. 774, 43 C. C. A. 218, a deputy marshal, Adams, with three other persons assisting him, armed themselves for the purpose of arresting one Flave Carver, suspected of horse larceny. It was thought that Carver was in the vicinity of the town of Muskogee. Between 8 and 9 o’clock in the evening this posse came stealthily upon James Chandler, who was walking with a lady at the north end of Cherokee street in' Muskogee, and without making any proclamation of their character or purpose some one of them called, “Hey, there!” Chandler stopped for a moment, and in answer to an inquiry from the lady explained it as his opinion that there were some boys in the grass,' and when Chandler and the lady had walked a few steps farther the same call, “Hey, there!” was made by some member of the deputy marshal’s posse. Chandler then stopped, and as he was turning around some member of the posse fired upon him, the bullet penetrating the side of his head and face. These officers or assumed officers had no warrant or process for the arrest of the thief, and had no knowledge or information whatever as to who the person was whom they were attempting to arrest, and under the circumstances had no grounds for believing that Chandler had committed a felony, and in fact he had committed no offense.

The case of Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 899, was a case where a person having rightfully in his possession articles of silver and jewelry in a satchel took them to a pawnshop and asked for a loan of money thereon. Not being able to obtain the amount he asked, he left the pawnshop, and with his satchel of valuables was- returning to his home, when a peace officer came up behind him and touched him on the shoulder, saying: “What have you got in that bag1?” The owner of the bag turned and saw two men who were strangers to him and replied: “None of your business. Take your hand off my shoulder.” One of the men said: “We are officers, and you are under arrest.” The man inquired upon what charge he was being arrested, and the officer replied: “We want to know what you have in that bag. ’ ’ The arrest was for a felony, and the officers did not have reasonable grounds for believing that the plaintiff had committed a felony.

The case in which the facts most nearly resemble the facts in the case here under consideration, so far as we have been able to find, is the ease of Wiley v. State, 19 Ariz. 346, 170 Pac. 869, L. R. A. 1918D, 373, wherein it was held that the facts and circumstances did not constitute reasonable and probable grounds for an arrest for the suspected felony without a warrant, and we think the facts in the case at bar show even less reasonable grounds for making an arrest than did the facts and circumstances in the Wiley Case. The facts in the Wiley Case, briefly stated, are these:

About 12 o’clock at night the sheriff’s office at Tucson received a telephone call from Pastime Park, about three miles distant, that “a woman had been robbed of $2,000 worth of jewelry and half beaten to death,” and asking that an officer be sent out at once. The sheriff secured an automobile and directed two deputy sheriffs and a policeman and the driver of the car to go to the park, look the matter over, and report to him by telephone at the sheriff’s office. This party proceeded towards the park, and overtook James Bates and his wife, who were riding in a car on their way to their home beyond the park. The Bates car suddenly turned north towards the park, and the officers then directed the driver of their car to speed up, which was done. Coming upon or near the Bates machine, the officers claimed to have called in a very loud voice, “Stop! we are officers.” This was repeated several times, they say, but received no attention or recognition from the occupants of the ear. Both cars were shown to have been running with the cut-outs open, and the Bates car had chains which were making a rattling, flapping noise when the car was running. One of the officers testified:

“I then took my pistol and fired a shot towards the wheel, trying to puncture a tire. For what purpose? To stop the car. Why to stop the car? .To find out who the parties were in the car.”

He testified further that he fired another shot in the same direction, a second or two after the first shot. Other shots were fired by others in the party. The Bates car then came to a stop about 25 feet in the lead.

Bates testified that he and his wife were returning home along the highway, running at the rate of'about 25 miles an hour, and that when not very far from Pastime Park his wife remarked that a car was following them. He looked back and saw the lights of a ear about 300 yards in the rear. A little farther on his wife said, “Pull out of the road and let the machine pass. ’ ’ They gradually did so, when he heard a noise which he thought was a blow-out or a shot. He immediately applied the emergency brake and threw the ear into neutral, remarking, “We have a blow-out.” His wife then said, “I 'am shot.” By this time the radiator of the officers’ car overlapped the tailboard of the Bates car, and stopped about 25 feet to the left. The officers pointed their revolvers in his direction, and one stood guard while two others overhauled the car and two boxes that were in the rear of the ear. They stated that they were officers and had instructions to search the car for booze. Bates said to them, “You have shot my wife.” One' of them answered, “That is G- — d—d nonsense.” Another said, “Oh, h-, she is just scared to death.” Mrs. Bates died soon, afterwards. The officers went oni to the park and busied themselves in looking for the woman who was supposed to have been robbed and beaten. When they later learned that Mrs. Bates was dead, they telephoned the sheriff’s office and surrendered-

It was held, under the above circumstances, that the officers should have known that the command to stop was not heard because o£ the noise of the cars; that, beforei the officers had a right to forcibly stop the Bates car, the surrounding facts and circumstances should have been such as to induce in the mind of a reasonably cautious and prudent person the belief or well-founded suspicion that the occupants of the ear had committed a felony. These officers did not know the name or have any description of the person accused of committing the felony. Their sole and only reason for suspecting the occupants of the Bates car was the fact that they believed that the car was coming towards them and turned suddenly when overtaken and refused to stop when spoken to, and that the facts here shown do not constitute ordinary care and prudence such as should have dictated the course pursued by these officers- — citing People v. Kilvington, 104 Cal. 86, 37 Pac. 799, 43 Am. St. Rep. 73, and Petrie v. Cartwright, 114 Ky. 103, 70 S. W. 297, 59 L. R. A. 720, 102 Am. St. Rep. 274, from which is quoted:

“We have b'een unable to find any common-law authority justifying an officer in killing a person sought to be arrested, who fled from him, where the officer acted upon suspicion, and no felony had in fact been committed. ’ ’

See, also, notes and annotations to the Wiley Case, supra.

The petitioners admits the killing of two innocent], women by some member or members of his posse. The evidence is clear and uneontroverted that two bullets penetrated and passed through the back curtain of the car from the rear, about midway between the upper portion of the body and the top; that two other bullets passed through the metal portion of the body, from the rear, about eight inches above the seat; and that one or two other bullets passed through one of the back side doors of the car. These physical facts would indicate that the person or persons who fired these bullets intended to kill or maim, or at least evinced a depraved and malignant purpose, regardless of human life. The rule is well settled that every man intends the ordinary and probable consequences of that which he purposely does.

The petitioner now claims that he did not fire the fatal shots; that thé shots which penetrated the ear and caused the death of these two innocent women were fired by Butler or possibly other members of the posse. At first the petitioner admitted that he alone did the killing, to protect the others, and later be changed bis story. However tbis may bave been, it seems to ns tbat tbey were all engaged in an unlawful undertaking, and tbat tbe leader of tbe party cannot justify on the ground that he himself did not fire tbe fatal shots.

If tbis attempted arrest was unlawful and without justification, each person participating will be held responsible for tbe illegal acts of tbe others done pursuant to a common criminal design — in tbis ease a design to consummate an illegal arrest in an illegal way. The common purpose need not be to commit tbe particular crime tbat was in fact committed. If two or more persons join in a purpose to commit! a crime; (in tbis case an illegal arrest), each of them, if present, is guilty as principal of any other crime committed by tbe others in pursuance of tbe common purpose or as a natural or probable consequence thereof. Wiley v. State, 19 Ariz. 346, 170 Pac. 869, L. R. A. 1918D, 373; 16 C. J. 128; 5 R. C. L. 1003; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.

This brings us up to tbe question of tbe degree of tbe crime, whether it was murder or manslaughter. In tbe Wiley Case, supra, it was held tbat tbe offending officer was guilty of murder in tbe second degree. The provisions of the Criminal Code of Arizona of 1901 are as follows:

“172. Murder is tbe unlawful killing of human being with malice aforethought. Such malice is expressed or implied. It is expressed when there is manifested or deliberate intention unlawfully to take away the life of a fellow creature. It is implied where no considerable provocation appears, or when the circumstances attending tbe killing show an abandoned and malignant heart.
“173. All murder which is perpetrated by means of poison or lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree, and all other kinds of murder are of the second degree. ’ ’

It will be seen that our statutes differ from the Arizona statutes in this respect. Under our statutes there is but one degree of murder and murder may be committed in any one of three ways, namely:

(1) By a premeditated design to effect the death of the person killed.

(2) When done in a manner imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to kill any particular person, or any person.

(3) When done without a design to kill by a person engaged in the commission of a felony.

Section 2317, R. L. 1910, provides that homicide by an act imminently dangerous to others and evincing a depraved mind is none the less murder because there was no actual intent to injure others. It would seem, therefore, that if the statutes of Arizona had classified homicide and- murder as our statutes do, the offending officers in the Wiley Case would have been guilty of murder, as defined by our statutes.

In Texas; Colorado, and Missouri, where the crime is by statute divided into first and second degree murder, the latter being where there is implied malice, it has been held that the killing of an innocent person by an officer while attempting to make an- arrest without a warrant, on suspicion and without probable cause, is at least murder in the second degree. Carter v. State, 30 Tex. App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944; State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381: Roe v. State, 55 Tex. Cr. R. 128, 115 S. W. 593.

As we view it, there was substantial evidence in the case here under consideration supporting each of our three statutory methods of committing murder, and especially the second. The firing of six shots into the top and body of an unidentified closed car, occupied by six persons and moving along the public highway, by officers seeking to make an arrest without a warrant, as we see it, evinces a depraved' mind, regardless of human life.

The application is therefore denied.

DÓYLE, P. J., and MATSON, J., concur.


text:
    FRED S. WYATT v. STATE.
    No. A-3168.
    Opinion Filed March 22, 1922.
    (205 Pac. 194.)
    (Syllabus.)
    1. Embezzlement — Agent Acting Within His Authorization not Guilty of Embezzlement If an agent, bailee, or servant does with the money or property of his principal only what he has been authorized to do, he is not guilty of embezzlement.
    2. Same — Agent Using Fundsi Fraudulently Acquired by Principal. Money acquired fraudulently by the principal may be the subject of embezzlement by an agent; but an agent handling such a fund is not guilty of embezzlement from his principal where he uses the funds within the scope of his authority.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Fred S. Wyatt was convicted of embezzlement, and sentenced to imprisonment for six months in the state penitentiary, and he appeals.
    Eeversed and remanded.
    James W. Steen and J. B. Wilkinson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. McMillan, Asst. Atty. Gen., for the State.
   BESSEY, J.

Fred S. Wyatt, plaintiff in error, in this opinion referred to as the defendant, was by information filed October 1, 1916, charged with the embezzlement of the sum of $25, the charging part of the information, whieh was predicated npon section 2671, R. L. 1910, being as follows:

“That the said Fred S. Wyatt, on the day and year aforesaid, at and within the county and state aforesaid, was then and there an officer, to wit, president of a certain association, to wit, the People’s Buying & Selling Association, and that as such officer the said Fred S. Wyatt was intrusted with and had in his possession and under his control, by virtue of his trust as such officer, the sum of $25, good and lawful money of the United States of America; and that the said Fred S. Wyatt did then and there, while he was such officer and while he was intrusted with the said sum of money as aforesaid, by virtue of a trust then and there existing between him and the said association, willfully, unlawfully, wrongfully, fraudulently, and feloniously embezzle, convert and appropriate the said sum of money, to wit, $25, to his own use and to a use and purpose not in the due and lawful execution of his said trust and duty. ’ ’

The evidence indicates that the People’s Buying & Selling Association had been a corporation operating a kind of farmers’ co-operative store in Garfield county, Okla., and that the store there had failed and ceased to operate about two years prior to the filing of this information, and that in the meantime the corporation’s certificate to do business was revoked and suspended for failure to pay its corporation taxes; that this association was what is sometimes termed a close corporation, consisting of the defendant, his wife, his son, and an attorney at Enid, who was counsel for the corporation.

The defendant was the president and treasurer of the association, and his son was secretary- The. object and purpose of the association was to organize and conduct farmers’ eo-operative stores, to buy and sell merchandise and farm products. The association was financed, in part, by the selling of certificates to farmers and others, by which it was agreed that the holders of these certificates would have the privilege of buying merchandise from the association stores at 5 per cent, discount on staple merchandise, and at from 5 to 20 per cent, discount on other commodities, and the association agreed to handle and dispose of farm products for the owners of these certificates to the best advantage possible.

Wyatt spent some time in and about Marlow soliciting and selling certificates to farmers, for the purpose, as he represented, of establishing a store at Marlow. One of these certificates, indicative of the character of contract made with these farmers, is as follows:

“No. 12. , 18 Years.
“Membership Certificate in the People’s Buying and Selling Association, Incorporated under the Laws of Oklahoma. Authorized Capital, $'20,000.
“This is to certify that George D. Morrison, having subscribed and paid for a membership in the People’s Buying and Selling Association, is entitled to all its benefits and advantages from date of the certificate during the term of incorporation.
“This association agrees to handle a general line of merchandise, such as groceries, dry goods, clothing, farm machinery, siloes and accessories to same, giving to its members a trade discount on all purchases of five per cent, on groceries and from ten to twenty-five per cent, on other merchandise. Also to give all possible advantage to handling farm products.
“Members bind themselves not to avail themselves of the privilege of membership except for their own personal use and that of their immediate family. The purchaser having paid the membership fee is exempt from all dues, liabilities and assessments.
“In. witness whereof, the said corporation has caused this certificate to be signed by the duly authorized officers and to be sealed with the seal of the corporation this 3d day of May, 1916. Fred S. Wyatt, President.”
“[Corporate Seal.]
“Earl L. Wyatt, Secretary.”

The defendant made contracts of this character with 10 or 12 farmers in the vicinity of Marlow, taking notes in the sum of $100 therefor, with the exception of one sold to Walter Garvin, who paid cash for the certificate issued to him. The $100 so obtained was deposited by the defendant in the National Bank of Marlow, in the name of the People’s Buying and Selling Association, and later the defendant, as president, treasurer, and general manager of the business, drew checks on this deposit, one of which was as follows :

“The National Bank of Marlow.
“Marlow, Oklahoma, May 3, 1916.
• “Pay to Fred S. Wyatt or order $25.00, twenty-five and no-100 dollars.
“The People’s B. & S. Ass’n,
“By Fred S. Wyatt, Pres. & Treas.”

Indorsed on back as follows:

“Fred S. Wyatt. F. Alice Holt. J. C. Nance.”

At this time J. C. Nance, manager of the Marlow Review, was conducting an automobile contest, in which Alice Holt, a country school teacher, seemed to be in the lead, and appeared to be the probable winner of the automobile. The defendant drew this $25 check, and indorsed it to Alice Holt, in payment of his subscription to the Marlow Review for 25 years, for the purpose of aiding her to procure the automobile, with the understanding and agreement between them that the defendant Wyatt was to have the use of the car for the purpose of getting about tbe country and soliciting the sale of other certificates, and generally to promote the business of the association and put it on an active paying basis. With reference to this transaction, a part of the testimony of Alice Holt is as follows:

Cross-examination:

“Q. What was the agreement between you and Mr. Wyatt at the time he made that subscription'? A. Well, I asked him for his subscription to the Marlow Review and he gave me the subscription for his daughter, and he said, ‘Maybe I will help you some more.’ He said, ‘I am going to make my home here,’ and he said, ‘I will be here for years, and will take the paper longer than that bye and bye.’ He took the paper for 25 years, and the paper is coming to his address for that time. He says, ‘I am paying a livery bill every week,’ or something to that effect — maybe every day — ‘for a buggy and team to promote this business,’ and we had it in the agreement that, if I won the ear, and I felt I was going to, he was to have the car to drive out and help promote the business, and that suited me exactly, as I was interested in the business; I had taken stock; he told me he had talked to Zachary, and they were selling him the store, and my sister had planned to have a position with him, and we were very anxious to get the business under way. I felt like he was getting pay for the money he subscribed, he said he advertised' in the paper and felt like it would be his home paper when he came there.
“Q. This $25 was given to you as a'subscription in consideration that you would aid in promoting the business and let him have the use of the car to drive out in the country to promote the business ? A. Yes, sir; that was in the trade. ’ ’

With reference to this transaction the defendant himself testified in part as follows:

“Q. You gave the check to yourself that went to Miss Holt. State to the jury the circumstances under which you gave the cheek and what it was given for? A. Well, at that time there was an automobile contest going on at Marlow, and I met Miss Holt and found out she was in the contest, and she had subscribed for membership in the organization, and she was anxious to receive the automobile, and I brought up a conversation with her; I was hiring an automobile to drive me around, for which the company was paying the expenses; I thought it was reasonably sure she would win, and by myself putting in $25 as a subscription to the paper that was putting on the contest it would give her the automobile, and under those conditions I was to have the automobile for promoting the proposition, driving myself, or having it driven. That is what the check was given for.
“Q. That was your object in making that check or in delivering it .to her? A. Yes, sir.”

It is urged that the proof does not support the allegations of the information. As we interpret the testimony, as shown by this record, this co-operative enterprise was an ingenious scheme to bilk the farmers. The name of the association, “the People’s Buying & Selling Association,” to farmers had an alluring, seductive sound. This, coupled with extravagant claims and false promises made by a shrewd salesman in the person of the president, treasurer, and general manager of the association, was well calculated to cause subscribers to turn their money over to him to be invested and managed as he saw fit. The organization at this time was outlawed, its charter revoked and it was no longer a going concern, which facts were not disclosed to prospective subscribers. We strongly suspect that this defendant could have been successfully prosecuted for false pretense and fraud practiced on the public, and possibly other crimes, but we cannot see how the transaction here complained of constituted a cheat or embezzlement against the association — a violation of a trust between principal and agent. In all probability, while the primary object of this organization was to farm the farmers, there was no fraud or embezzlement practiced against the organization itself, or any of its members, the wife, the son, or the general counsel. On the contrary, this transaction was well calculated to fullfill and carry out their common design. It was a clever advertising scheme from which all would derive a benefit — all but the subscribing farmers, who were in no sense members of the organization and who had no rights or voice in the business, except to buy merchandise at a discount.

If an agent, bailee, or servant does with the money or property of his principal only what he has been authorized to do, and has no felonious intent, he is not guilty of embezzlement. 20 Corpus Juris, 431, with annotations and numerous cases there cited.

Money acquired fraudulently by the principal may be the subject of embezzlement by an agent, but an agent handling such a fund is not guilty of embezzlement from his principal where he uses the funds within the scope of his authority. The fraudulent acquisition of the property in the first instance may amount to a separate crime, essentially different from embezzlement, and neither can be interchangeably substituted for the other. People v. Ward, 134 Cal. 301, 66 Pac. 372; State v. Posey, 88 S. C. 313, 70 S. E. 612; State v. Cunningham, 154 Mo. 161, 55 S. W. 282.

Neither the articles of incorporation nor the by-laws of the association were introduced in evidence, but we think it is fair to assume that the president, treasurer, and general manager of an enterprise of this character had general and unlimited power to do any and all things calculated directly or indirectly to promote the interests of the association or to enhance the value of its property; and in this connection he would have authority to make obligations and contracts of any kind or description in furtherance of any of its objects or purposes.

Viewing this feature of the case as stated above, it will be unnecessary to notice any of the other assignments of error, and the canse is reversed and remanded for further proceedings not inconsistent with this decision.

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


author: DOYLE, P. J.

text:
    JAP JOHNSON v. STATE.
    No. A-3707.
    Opinion Filed March 25, 1922.
    (205 Pac. 203.)
    (Syllabus.)
    Larceny — Larceny of Stock — Sufficiency of Evidence. In a prosecution for larceny of live stock, evidence considered, and held sufficient to support the verdict and judgment, and that no reversible error was committed on the trial.
    Appeal from District Court, McCurtain County; A. A. McDonald, Judge.
    Jap Johnson was convicted of the theft of a cow, and he appeals.
    Affirmed.
    H. P. Hosey, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Jap Johnson, was tried and convicted on an information charging the theft of a cow, the personal property of Mac Bailey, and his punishment fixed at imprisonment in the penitentiary for the term of five years. He has appealed from the judgment rendered on the verdict on the sole ground that the evidence is insufficient to sustain the; verdict and judgment of conviction.

The following facts appear from the record:

Mac Bailey was the owner of a small red eow, branded a big double “M” on the left side, with over jet on the left and under jet on the right ear. The owner missed his cow in May of the year 1918, and did not find her until a few days before Christmas, at which, time he found her in possession of Sam Cobb.

Sam Cobb’s testimony shows that he bought this cow from the defendant, Johnson, in the fall of 1918, paying him $75 for her; that when Bailey claimed the cow he went to the defendant, and the defendant returned the $75, saying that he had traded with another fellow for the cow.

Another witness for the state testified:

“I know this cow. She is 4 years old. I was driving along near Shawneetown and saw her. The next day I went to Mac Bailey’s and told him that I saw his cow, and we went back the next morning and found the cow there.”

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

“I live about three miles from Mac Bailey’s, I saw this cow the first time along about February; in May a fellow by the name of Brooks swapped this cow for a yearling, and I gave him $50 difference; she had a calf in July, and I sold the cow toj Sam Cobb; in about three months he told- me another man claimed the cow, so I gave him back his money; I went the next day to look for Brooks, but I could not find Jnm. I was convicted in this county on a charge of murder and served 3 years and 20 days.”

Ed Johnson, the defendant’s brother, testified that he was present when the defendant traded his yearling for the cow, and the fellow said his name was Jim Brooks. It appears that all the parties concerned are negroes.

It is obvious that the case was one for the consideration of the jury. The credibility of the testimony of the defendant and witnesses testifying in his behalf is the exclusive province for the jury to determine, and, although such testimony may be uneontradieted and not directly impeached, when there are facts and circumstances in evidence tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same. In our opinion the testimony for the state is sufficient to sustain the verdict. The judgment appealed from is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: PER. CURIAM.

text:
    HOWARD SHELL v. STATE.
    No. A-3730.
    Opinion Filed March 25, 1922.
    (205 Pac. 192.)
    (Syllabus.)
    1 Appeal and Error — Lack of Jurisdiction in Absence of Service of Notices of Appeal or Summons in Error. Where no notices of appeal are served as provided by section 5992, Rev. Laws 1910, nor summons in error issued and served or waiver thereof by the Attorney General, as provided in section 5997, and no general appearance is entered by said officer within six months after the rendition of the judgment in the trial court, this court does not acquire jurisdiction of an appeal in a felony case, and the same will be dismissed.
    2. Same — Necessity for Perfecting Appeal Within Six Months in Felony Cases. Any service of notice of appeal or summons in error or appearances entered by the Attorney General after the six_month period has expired is a nullity. All steps necessary to perfecting, the appeal in a felony case must be taken within six months after thte rendition of the judgment.
    Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
    Howard Shell was convicted of receiving stolen property, and he appeals.
    Appeal dismissed.
    Pruiett, Sniggs, Patterson & Morris, J. J. Mitchell, and H. A. Wilkinson, for plaintiff in error.

      The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER. CURIAM.

Howard Shell was convicted in the district court of Oklahoma county of the crime of receiving stolen property, and punishment assessed as above stated. He has. attempted appeal to this court from the judgment of conviction rendered against him in said trial court, but upon examination of the record we are of opinion that this court has never acquired jurisdiction of said appeal for the following reasons:

(1) No notices of appeal were ever served upon the court clerk or thef county attorney as provided in section 5992, Revised Laws 1910, within the period' allowed for taking an appeal in felony cases to this court.

(2) No summons in error was ever issued and served upon the Attorney General, nor any waiver of the issuance and service of such a summons ever made by said officer, or any general appearance entered by him, as provided in section 5997, Revised Laws 1910, within the time allowed by law for taking an appeal in felony cases. The appellant gave oral notice of this appeal in the trial court, but such notice is insufficient. Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173. ,

There is also found with the papers in this ease what purports to be a' waiver of the issuance of summons in error and the entering of an appearance by the Attorney General. This paper, however, is undated, and1 was never filed in this court until October 26, 1920, long after the six-month period after the rendition of judgment, and it must affirmatively appear from the record in felony cases, either that notices of appeal were issued and served within six months after the rendition of a felony judgment or summons in error was issued or served upon the Attorney General, or the waiver of said issuance and service or general appearance entered by said officer within said period. Any service of notices or agreements entered into between attorneys after the expiration of the statutory period for taking an appeal do not have the effect of lodging jurisdiction of the appeal in this court. All steps necessary to perfecting the appeal in a felony case must be taken within six months after the rendition of the judgment in the trial court. Hughes v. State, 4 Okla. Cr. 333, 111 Pac. 964.


text:
    Ex parte W. E. ROBERTS.
    No. A-4216.
    Opinion Filed March 25, 1922.
    (205 Pac. 204.)
    Original application by W. E. Roberts for a writ of habeas corpus, alleging unlawful restraint by George Frampton, Sheriff of Comanche County.
    Application denied.
    See, also, 21 Okla. 55, 204 Pac. 653.
    C. R. Reeves, for petitioner.
    The Attorney General opposed.
   PER CURIAM.

Petitioner, W. E. Roberts, on the 24th of February, 1922, applied to this court for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty and imprisoned by George Frampton, sheriff of Comanche county, Okla.

In substance, petitioner alleges that, on the 20th day of February, 1922, he was arrested by said sheriff upon a complaint and warrant issued out of the justice’s court of M. T. Perkins, a justice of the peace in and for said Comanche county, jointly' charged with his wife of having unlawfully, willfully, and feloniously deserted a minor child under the age of six years; that on the 21st day of February, 1922, petitioner was given a preliminary hearing on said charge, and, on said preliminary hearing, was held to answer said charge in the district court of Comanche county. But petitioner alleges that the evidence produced against him on said preliminary hearing was not sufficient to establish the fact that he was the father of said minor child, and that, although the said justice’s court had jurisdiction of the subject-matter and of the person of this petitioner, the evidence at that preliminary hearing failed to support or to show a probable cause to believe the petitioner to be the parent of said child and liable for its support. There is attached to the petition what purports to be a statement of the justice of the peace, who held the preliminary examination, setting forth, in substance, the evidence at said hearing.

The Attorney General interposed a demurrer to the petition, which was sustained by the court, and the writ denied for the reason that the office of the writ of habeas corpus is not to determine the guilt or innocence of the petitioner, and the only issue presented'by it is whether or not the petitioner is restrained of his liberty by due process of law. Ex parte Burroughs, 10 Okla. Cr. 87, 133 Pac. 1142.

After an examination of the application, the court reached the conclusion that the purpose of the writ in this instance was to inquire into the sufficiency of the evidence adduced against the petitioner in the preliminary hearing. All questions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose jurisdiction the defendant has been subjected by law, and matters constituting a good and sufficient defense to a criminal charge will not entitle a defendant to his discharge on habeas corpus. 12 R. C. L., p. 1206, § 24.


text:
    Ex parte L. S. FLANNERY.
    No. A-4013.
    Opinion Filed March 29, 1922.
    (205 Pac. 203.)
    (Syllabus.)
    Municipal Corporations — Penalties in Excess of $20 for Violation of Ordinance Illegal. It is beyond the power of the law-making- body of a municipal, corporation in this state to impose penalties in excess of $20 for the violation of a city ordinance.
    L. S. Flannery was convicted of disturbing tbe peace, and was committed to jail on refusal to pay a fine of $100, and be brings habeas corpus.
    Writ allowed, and petitioner ordered discharged.
    W. K. Moore and ¥m, J. Rieker, for petitioner.
    James Q. Louthan, for respondent.
   PER CURIAM.

The applicant was, on June 10, 1921, in the municipal court of Ponca City, tried and convicted on two charges of disturbing the peace, in violation of a municipal ordinance of said city, and his punishment in each case was fixed at a fine of $100, pursuant to the penal provisions of the ordinance. The applicant refused to pay tliese fines and costs, and was thereupon ordered committed to the city jail, and was so committed. The applicant then instituted habeas corpus proceedings here, alleging that he is illegally restrained of his liberty, on the grounds that the municipal court was without jurisdiction to impose such, a penalty, and that the judgment and conviction so had is void and in violation of the Constitution of the state of Oklahoma.

The court finds that the application should be sustained on authority of Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537, and Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533. The writ is therefore allowed, and the petitioner ordered discharged.


text:
    S. C. CLAYMAN v. CITY OF BARTLESVILLE.
    No. A-3781.
    Opinion Filed March 29, 1922.
    (205 Pac. 509.)
    Appeal from County Court, Washington County; Robert D. WaddiU, Judge.
    S. C. Clayman was found guilty of violating a city ordinance and sentenced to jail in default of payment of a fine of $5 and costs, and he appeals.
    Reversed.
    Arthur Fitzpatrick, for plaintiff in error.
   PER CURIAM.

This is an appeal from a conviction in which L. U. Gaston made complaint in the municipal court of the city of Bartlesville, charging that S. C. Clayman, the plaintiff in error, on the 3d day of August, 1919, violated amended ordinance No. 580 of said city by operating a picture show on Sunday. On the same day a warrant was issued for the arrest of the plaintiff in error, upon which he was arrested and forthwith brought into the municipal court and there entered his plea of not guilty. On the day following, August 4, 1919, plaintiff in error was brought into court and placed upon trial. A. jury was demanded, and the cause was thereupon ordered sent to the county court, where the cause was entered and docketed as ease No. 1383.

On December 9,1919, the cause came on for hearing in the county court, where it was tried to a jury of six men, resulting in a verdict of guilty, in which the punishment was fixed at a fine of $5 and costs in both courts. Judgment was rendered upon the verdict, assessing a fine of $5 against plaintiff in error, and that in default of payment of the fine he should be confined in the county jail of Washington county until the fine and costs should be paid', or until plaintiff in error should have been confined in said county jail one day for each one dollar of such fine and costs. From this judgment and sentence plaintiff in error appeals, alleging, among other things, that amended ordinance No. 580 of the city of Bartlesville is unconstitutional and void. This ordinance provides for a fine in any sum not more than $50 nor less than $5, together with the costs of the action.

It was recently held by this court in the case Ex parte Mrs. Chas. Daugherty and J .R. Reed, 21 Okla. Cr. 56, 204 Pac. 937, that a justice of the peace or county court is without jurisdiction to try municipal offenses. Adhering to the doctrine announced, and discussed at length, in the Daugherty-Reed Case, supra, the judgment of the trial court is reversed, with instructions to discharge the plaintiff in error.


text:
    R. C. PAMPLIN v. STATE.
    No. A-3801.
    Opinion Filed March 29, 1922.
    (205 Pac. 521.)
    (Syllabus.)
    1. Arrest — Peace Officer Jeopardizing Life by Discharging Fire-arms When Making. Arrest for Misdemeanor. A peace officer in attempting to malte an arrest for an offense less than a felony has no right to discharge firearms, where the shooting may jeopardize the life of the person sought to be arrested or the lives of innocent bystanders, unless the offender places the officer in danger of his own life or of suffering great bodily harm.
    (a) Except for their own safety, police officers should be made to realize that they have no right or authority to discharge firearms to arrest offenders violating or suspected of violating police regulations.
    2, Same — For Protection of Parties Making Arrest, Necessity for Well-Founded Belief that Felony Has Been Committed. — Even where officers or others have authority to make arrests upon belief than a felnoy has been committed, to claim protection under the law there must be reasonable and probable grounds for that belief. Belief without cause can never be an excuse for such action. The two must both exist and be reasonably well' founded.

      3. Homicide — Instruction on “Culpable Negligence” Approved. "Culpable negligence,” as applied to this case, was properly defined as follows: “Culpable negligence is the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and you are instructed that a person handling a deadly weapon will be required under the law to use a higher degree of care and circumspection than if using an instrument ordinarily harmless.”
    Appeal from District Court, Oklahoma County; Edward' Dewes Oldfield, Judge.
    R. C. Pamplin was convicted of manslaughter in the second degree and sentenced to imprisonment in the state penitentiary for four years, and he appeals.
    Affirmed.
    J. Q. A. Harrod and Giddings & Giddings, for plaintiff in error.
    Geo. F. Short,. Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

R: C. Pamplin, plaintiff in error, in this opinion referred to as the defendant, was by information filed in the district court of Oklahoma county on July 7, 1919, charged with the crime of murder. At the trial, November' 5, 1919, defendant was by a verdict of the jury found guilty of manslaughter in the second degree, and later a judgment was rendered in accordance with the verdict. A motion for a new trial was filed, considered, and overruled, and the defendant in due time prosecutes this appeal.

On the night of the homicide, June 22, 1919, defendant Pamplin was, or assumed to be, a plain-clothes policeman, doing special police duty in Oklahoma City, operating under verbal instructions from Mayor Walton and other subordinate police officers. He had no written authority or commission to act in that capacity and seems to have been a kind of assistant policeman, to aid others in making arrests. On this night, at about 10 o’clock, defendant had made an arrest of one Helena, and had stopped with his prisoner in front of the Noll Hotel on West Second street in Oklahoma City for the purpose of permitting Helena to procure cash to make his bond. While defendant and Helena were there in a Ford automobile, C. A. Smith, an employee of the city fire department, passed in an Overland automobile, driving, so defendant says, at an excessive rate of speed. Helena, the driver of the Ford ear, was instructed by the defendant to speed up and pursue Smith, which they did. In so doing they passed from Second street into Broadway, where they turned north. When they were between Third and Fourth streets on Broadway, going north, the defendant while standing on the running board of the Ford, car, then a short distance in the rear of the Overland ear, fired his 45 double-action revolver, as he says, at one of the tires of the Overland car for the purpose of causing the driver to stop. This shot passed on beyond the Overland car and killed an innocent young man, Lyman Crane, who happened to be crossing the street near the middle of Broadway at the intersection of Fourth street.

There is evidence showing that before the shooting the defendant shouted to Smith, the driver of the Overland car, to stop. Smith said he did not hear any command to stop; that he heard defendant call and looked back over his shoulder and saw defendant wave his hand, and supposed it was a friendly salutation from a certain acquaintance whom he took defendant to be. When the shot was fired, Smith turned his car towards the curb and stopped. According to the testimony of Smith, the defendant then came up and got on the side of his Overland car and accused him of running without a tail light. Defendant then asked Smith what his business was, and Smith replied that he worked for the city the same as the defendant did, but in a different department. Defendant then said, “Let’s go to the police station,” which Smith consented to do. Before arriving at the station, the defendant got out and looked at the tail light and saw it was burning, whereupon he ordered Smith to go on home and go' to bed and forget about it.

No charge was lodged against Smith at the police station, then or later, charging him with the commission of a misdemeanor or any other crime. Smith denied that he was running at an excessive rate of speed, in which he was corroborated, to some extent, by other disinterested witnesses. There was no evidence that Smith had committed a misdemeanor, except the uncorroborated testimony of the defendant himself. The evident self-interest of the defendant, coupled with the fact that he made no effort then or any time to lodge a complaint against Smith for driving at an excessive rate of speed or for driving without a tail light, indicated that his testimony on this point was of little probative value.

The testimony shows further that at this time there were a number of pedestrians on and crossing this street; that North Broadway at this point is one of the most frequented thoroughfares in Oklahoma City.

The errors complained of, worthy of consideration, relate to the instructions of the court defining the different degrees of homicide and the language of the court in defining culpable negligence and the doing of the act without authority of law, in a manner imminently dangerous, with a reckless disregard of human life.

Several of the questions of law involved in this ease were recently discussed at length and decided by this court in the case In re Habeas Corpus of J. W. Finney, 21 Okla. Cr. 103, 205 Pac. 197. For the sake of brevity and to avoid full analysis of the; questions here at issue, reference is made to that case.

Under our statutes there is but one degree of murder, and “murder” may be committed in any one of three ways, namely:

(1) By a premeditated design to effect the death of the person killed.

(2) When done in a manner imminently dangerous to-others and evincing a depraved mind regardless of human life, without a premeditated design to kill any particular person, or any person.

(3) When done without a design to kill, by a person engaged in the commission of a felony.

“Manslaughter in the first degree” may be committed in either of two ways, one of which is ‘ ‘ when perpetrated without a design to effect death and in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide. ’ ’

“Manslaughter in the second degree” is defined as “any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder or manslaughter in the first degree.”

Under the conditions disclosed in this record, there was. evidence supporting a charge of murder under the second and third subdivisions of the-statute defining murder; there was evidence to support the charge of manslaughter in the first degree, under the second subdivision recited in that statute; and there was evidence to support the charge of manslaughter in the second degree as defined above, and as found by a verdict of the jury in this case.

By a great preponderance of the evidence here the person, sought to be arrested was guilty of a misdemeanor only, if he was guilty of anything, and the defendant himself was in the act of committing a felony when he fired the fatal shot. The defendant, after a long experience as a policeman in the Barbary Coast district and elsewhere, knew or should have known that he had no right to shoot a deadly firearm on one of the most frequented thoroughfares of' a city in attempting to arrest for an offense which was at most only a misdemeanor. In an early case in this court, Sharp v. U. S., 6 Okla. Cr. 350, 118 Pac. 675, it was held that a peace officer in attempting to make an arrest for an offense less than a felony has no right to shoot, unless the offender resists to such an extent as to put the officer in danger of his own life or suffering great bodily harm. The use of firearms under the circumstances here was attended with probable moral consequences to the person sought to be arrested and with jeopardizing the lives of innocent bystanders. In such a case, where death ensues, the crime is murder or manslaughter, depending upon motive, intention, or deliberation, as the case may be. The law always presumes that a person intended the probable and natural consequences of his deliberate act. Tyner v. United States, 2 Okla. Cr. 693, 103 Pac. 1057; Ex parte Finney, supra.

The best police officers are those who use their guns the least. Many innocent lives would be saved yearly if police officers could be made to realize this fact. They have no right or authority to discharge deadly firearms to arrest offenders violating or suspected of violating police regulations. The law does not contemplate the discharge of firearms for such a purpose excepting only for the police officer’s own safety; and, if a police officer violates the law in this regard, he will be held accountable criminally, like other people, for the fatal consequences of his illegal acts. Police officers are to be commended in their zealous efforts to enforce the law, but in so doing -they must themselves keep within the bounds of the law, as -more elaborately discussed in the Finney Case, supra.

Even where officers or others have authority to make ar-jrests upon belief that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that belief. Belief without cause can never :be an excuse for such action. The two must both exist and1 be reasonably well founded.

The trial court failed to instruct the jury as to the law .covered in the second subdivision of the statute defining man-daughter in the first degree. In our opinion, the facts here justified the giving of such an instruction. It may be when "the defendant fired the fatal shot he had no design to effect the death of any one; but it was done illegally and without cause, by means of a deadly weapon, under circumstances in•dicating that it may have been done in the heat of passion. This, however, was an error in favor of the defendant of which, for that reason, he has no cause for complaint.

The defendant complains of the court’s instruction defining “culpable negligence,” as follows:

“(12) If you have a reasonable doubt that the defendant is guilty of the crime of murder as herein submitted to .you, then you must inquire as to whether or not he is guilty of the crime of manslaughter in the second degree. And if you find and believe from the evidence, beyond a reasonable doubt, that the defendant did, in Oklahoma county, state of Oklahoma, on or about the 22d day of June, 1919, unlawfully .shoot and kill the deceased, and if you find and believe from the evidence beyond a reasonable doubt that the act of shooting under the circumstances was culpable negligence on the part of the defendant, without evincing a depraved mind, then .you will find the defendant guilty of manslaughter in the second degree and assess and declare his punishment therefor.
“And in this connection, yon are instructed that any person convicted of manslaughter in tbe second degree is punishable by imprisonment in the penitentiary for not more than four years, or not less than two years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment.
“(12%) ‘Culpable negligence’ is the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and you are instructed that a person handling a deadly weapon will be required under the law to use a higher degree of care and circumspection than if using an instrument ordinarily harmless.”

Instruction No. 12%, as given above, was given in the language requested by the defendant. In addition to this definition of “culpable negligence,” defendant requested the following, which was refused:

“By ‘culpable negligence” is meant guilty, censurable, reprehensible, wrong, sinful. In other words, manslaughter in the second degree must be some criminal act which is not covered by murder or manslaughter in the first degree. But in any event, it must be some act which the law abhors as a crime, for no man can be convicted for mere negligence, but it must be criminal negligence.”

While the definition requested may not have been incorrect, the words “guilty,” “reprehensible,” “sinful,” and words of the same or similar import, are susceptible of multitude of interpretations. What one juror might consider sinful another might deem entirely harmless. Instead of elucidating the meaning of the term “culpable negligence,” the requested instruction would more likely have confused the jury. Like the terms “reasonable doubt,” “police power,” and “res gestae,” the definition is often more difficult to understand than the naked term itself. The court having instructed tbe jury on culpable negligence, as requested, did not err in! refusing to define tbe term further in the language! .requested, as last above quoted'.

This court, in the case of Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040, has approved the instruction given in the instant ease, verbatim, and this is a definition which is hard to improve upon and one which may be safely followed by trial ■courts. . .

The errors, if any there were material to the issues in this case, seem to have operated to the advantage of the defendant. Under the evidence here, the defendant might, well congratulate himself that he was not convicted of murder or manslaughter in the first degree.

The judgment, of the trial court is affirmed.

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