text:
    R. B. PERKINS et al. v. STATE.
    No. A-5269.
    Opinion Filed Nov. 16, 1926.
    (250 Pac. 544.)
    L. A. Pelley, P. K. Morrill, and Lydick, McBherren & Wilson, for plaintiffs in error.

      Geo. F. Short, Atty. Gen., Smith C. Matson and Leon Hirsh, Asst. Attys. Gen., and Guy P. Horton, for the State.
   BESSEY, P. J.

The plaintiffs in error, R. B. Perkins and D. J. Tays, in this opinion designated the defendants, were on April 1, 1924, convicted of the crime of riot, with the punishment of each fixed by jury at confinement in the penitentiary for the term of two years. From the judgment on the verdict, they appeal.

This prosecution involves the Knights of the Ku Klux Klan, knight errantry, and mingled romance, comedy, and tragedy.

In stating the facts, many of the incidents are purposely omitted. A recital of facts, sufficient to illustrate the legal points involved, follow:

The prosecuting witness, Robert Kimbell, and Inez Earls testified that Kimbell, on the night of the whipping, made a prearranged social call on Miss Earls at her home in Altus. Upon his arrival there about 8 o’clock p. m., he found her friend, Mrs. Pendleton, visiting there. Presently a drive was suggested, to which the three assented, and together they got into Kimbell’s Ford coupe, with Miss Earls at the wheel. After driving a circuitous route in the country, and when they were approaching Altus, about three miles distant, at between 10 or 10:30 o’clock, they came upon a group of 12 or 15 men in the public highway, clad in hooded, white robes — the regalia of the Ku Klux Klan. One or more of the number ordered the driver to stop. The young lady, at the suggestion of Kimbell, did not heed their order, and, as they passed, one of the group fired a shot. In her excitement or in order to avoid striking one or more of them, the young lady caused the car to swerve so that it ran into a boggy ditch, where she could move no farther. To investigate and disclose his identity Kimbell got out of the car, addressed the group generally, and demanded to know what they wanted. Some one or more of the number made some insulting remarks about his being out riding with a married woman; others scrutinized the car and its occupants with searchlights. Kimbell became angry and defied the mob, and, as the argument progressed, several members of the party violently punched Kimbell’s stomach and bowels with their guns with such violence that the marks of these assaults remained upon his body for days. Finally, these men in masks and regalia decided to send Kimbell and his companions on their way, and proposed pulling the car out of the ditch. Kimbell protested and stated that he would accept no assistance from any of the party, and at the same time he locked the steering wheel and threw the key away into the darkness. Two or more of the hooded party then seized Kimbell and threw him upon the ground, face downward, and unmercifully applied the lash to his back — 20 or 30 stripes, the bloody marks and lacerations of which remained on his body for many days. After the whipping, Kim-bell and his companions were forced to enter one of the automobiles there — an old four-cylinder Buick car. The two women sat in the front seat with the robed and hooded driver; Kimbell sat in the rear seat with another. Thus they proceeded on towards Altus. When they reached a point a little over a mile from town, Kimbell and his women companions were ordered to get out of the car. After alighting, the car with the two abductors drove away. From there Kimbell and his companions walked into Altus, where they separated, and each went to their respective homes.

It was shown by the state, and the defendants admitted, that defendant Perkins was the cyclops of the Altus chapter of the Klan, and that Perkins was a large man weighing about 210 pounds, with peculiar mannerisms, among which was an effeminate voice. The prosecuting witness says he learned to know this vocal peculiarity well by hearing defendant Perkins talk when he was a member of the church building committee in Altus. It was shown that the regalia worn by the cyclops differed from that of ordinary knights, in that it was lined with red silk and the hood bore the number of the local chapter. By these and other means, Kimbell and his companions positively identified Perkins as one of the leaders of the mob, as one of the men who participated in the whipping, and as the one who sat with Kimbell in the rear seat of the Buick as they rode towards town. It was shown, moreover, that the cyclops was the custodian of the one and only key to the locker containing the robes, hoods, and other regalia of the order, and that no part of this regalia could be removed without the knowledge or assent of the cyclops.

Defendant Tays was identified in this manner: After the whipping, and while Kimbell and his companions were being driven towards Altus in this Buick car, and while Kimbell was sitting in the rear seat with the cyclops, Kimbell, for the purpose of afterwards identifying the car, surreptitiously took from his pocket a small knife with which he cut two small circular places in the side-rear curtain, next to where he sat. Miss Earls, who sat in the front seat, noticed that the car was an old four-cylinder Buick, similar to one that she herself had driven, and like the one owned and operated by defendant Tays. After being ejected from the car and as she and the prosecuting witness and Mrs. Pendleton were walking towards town, they all agreed that the man who sat in the rear seat with Kimbell was Perkins, the cyclops. Miss Earls believed that the man who drove the Buick car was Tays, but did not communicate her knowledge or suspicions to Kimbell because she feared that Kimbell, in the angry mood in which he was, might do him some personal violence or perhaps kill him.

After Kimbell had sufficiently recovered to go about, he went, in company with his brother, from place to place in Altus, to find the car with the peculiar marks he had made in the side-rear curtains. Finally, they discovered this car with the curtain so marked parked near a place where a building was being constructed, where defendant Tays, who was a carpenter, was assisting in its construction. Kimbell and his brother lingered about some distance away, until Tay’s wife came and got into the car and drove it to their home. Some time later, when they sought to further identify this car, it was found that the curtain had. been removed and its whereabouts could not thereafter be ascertained. It was shown and admitted that Tays habitually drove the four-cylinder Buick driven by his wife, and that he was a member of the Altus chapter of the Ku Klux Klan.

At the trial, the defense of both defendants was an alibi, both more or less imperfect,- except that Tay’s wife testified that • he was at home on the night of the whipping, all night long.

The assignment of error may be summarized thus: (1) That the court erred in admitting incompetent and prejudicial testimony in evidence over their objections; (2) that the trial court erred in giving instructions Nos. 3-A and 4; (3) that the judgment of the court is not supported by sufficient evidence; (4) that certain of the jurors were corruptly influenced, so that the defendants were not accorded a fair trial.

Touching the alleged incompetency of evidence of which complaint is made, the state, on cross-examination of defendant Perkins, sought to show that he and other members of the Klan had committed like depredations upon others, presumably for the purpose of showing a general conspiracy, tending to elucidate the similarity of the plans and methods used in committing such outrages and the identity of the persons who committed them. For that purpose, defendant Perkins, on cross-examination, was asked:

“Didn’t you visit him (Robert White) in the regalia of the Ku Klux Klan, and ask him (Robert White) about some trouble with his wife, and tell him if he didn’t straighten up that you would get him, or words to that effect?”

To this question the defendant answered, “I did not.” Later, Robert White was called in rebuttal and, among other things, asked this question:

“I will ask you if, approximately a month before that happened, Mr. Perkins, the defendant in this case, came to you in the regalia of the Ku Klux Klan and asked you something about some trouble with your wife, and then told you if you did not straighten up that they would attend to you; that they were the law, or words to that effect?”

To this question an objection was interposed and sustained by the court. Despite the sustaining of the objection, the witness answered the question, “Yes, sir.” No request was made to withdraw the answer or to charge the jury not to consider it. Indeed* the record is not clear whether the jury heard the answer or not. On this feature of the record the defendants have no cause for complaining. If the defendants felt aggrieved at the answer, they should have requested its exclusion. Brown v. State, 17 Okla. Cr. 394, 188 P. 1097.

From what appears elsewhere in the record, we are inclined to believe that the question was competent and relevant, involving a proper subject for the consideration of the jury. It must be remembered that the defendant’s defense was an alibi, and the • state should be permitted to show, if they could, that this and the other defendant were identified with an organization, the members of which used the same regalia, the same system and methods in reprimanding and punishing others who were suspected of violating the moral or statutory code.

Underhill on Criminal Evidence (3d Ed. § 125),-states this principle thus:

“Where a crime has been committed by some peculiar, extraordinary, and novel means or implement or apparatus, or any peculiar or extraordinary manner, evidence of a similar crime committed by the accused, by the same means or in the same manner, has been received to prove the identity of the accused, as an inference from the similarity of method. Where the offense is committed pursuant to system or peculiar method, for the purpose of establishing the identity of conspirators, an extended range of inquiry into explanatory collateral facts may be proper.” 5 R. C. L. Conspiracy, §§ 36, 37, and 39; King v. State, 123 Miss. 532, 86 So. 339; 12 C. J. 637; Dykes v. State, 11 Okla. Cr. 602, 150 P. 84; Jenkins v. Com., 167 Ky. 544, 180 S. W. 961, 3 A. L. R, 1522.

The defendants complain, further, that the witness Blanton, who was the keeper of the records of the Altus chapter of the Klan, was permitted to testify that Perkins was a member of the order and, at the time of the offense, was the cyclops, and that the regalia of the cyclops differed from that of the other members of the order, describing the difference. Defendants say that this tended to inflame the minds of the jury. This objection was likewise without merit. This testimony tended to further identify Perkins and Tays. Tays himself, on cross-examination, admitted his affiliation with the Klan, and Perkins likewise admitted that he was the cyclops at the time of the whipping; that he had charge of the regalia; that he had the only key to the locker in which the regalia was kept; and that his personal regalia was the only one that differed from the regalia worn by the others. Under the circumstances shown in this record, the defendants have no cause for complaint, where they, themselves, took the witness stand and admitted the very things about which complaint is made. Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L. R. A. (N. S.) 113; Blanck v. State, 14 Okla. Cr. 339, 169 P. 1130; Rogers v. State, 9 Okla. Cr. 277, 131 P. 941; Rhea v. Ter., 3 Okla. Cr. 230, 105 P. 314.

The state sought to show by the witness Blanton that this whipping had been officially reported to the local chapter of the Klan. Blanton was a hostile witness from the enemy’s camp, and the court permitted a wide range of cross-examination. The defendants complain that the questions asked and the insinuations made during the course of the examination of this witness were prejudicial. From all that appears elsewhere in the record, it appears to us that the questions propounded and the examination made were in good faith. The witness denied that an official report had been made, but did admit that the whipping had been discussed by the members at the meeting following, unofficially. Bond v. State, 9 Okla. Cr. 696, 129 P. 666.

It is within the sound discretion of the court to permit leading questions to be propounded to a manifestly hostile witness. 28 R. C. L. 590, and cases there cited.

Riot at common law, and under provisions of sections 2006 and 2008, Comp. St. 1921, is a compound offense, including some of the essential elements of a criminal conspiracy, involving the execution of an agreement, express or implied, between three or more persons to commit an assault or a battery or a breach of the peace. The rules of evidence tending to establish concerted action and the identity of the parties participating should be the same as in a criminal conspiracy.

Instruction No. 3-A, given by the court and excepted to by the defendants, reads as follows:

“Therefore, bearing in mind these instructions and applying the same to the evidence before you, should you find from the evidence beyond a reasonable doubt, that in Jackson County, Okla., on or about the 23rd day of April, 1923, the defendants, D. J. Tays and Robert Perkins did then and there, while acting in a body of three or more persons, without authority of law, feloniously combine together, acting in concert, and in pursuance of a common design and intent by means of force and violence, and carried at the time any firearms or other dangerous or deadly weapons, or were disguised by means of masks or otherwise, seized the prosecuting witness, Robert Kimbell, against his will and by the means just stated, and while so acting together in a body composed of three or more, did whip and beat the said Robert Kimbell, with a certain strap or lash, thereby inflicting serious bodily injury upon the said Robert Kimbell, it will be your duty to find the' defendants, or such of them as you believe beyond a reasonable doubt, advised, aided, abetted or participated in committing the offense, if the number so committing such offense amounted to three or more, guilty as charged in the information, and unless you find these several averments to be true, beyond a reasonable doubt, your verdict should be not guilty.”

The defendants complain that this instruction in effect admonished the jury that if Perkins and Tays were in the crowd there assembled on the highway, and that if they, as members of this crowd, seized Kimbell and whipped him, their guilt was established. In other words, that it was not necessary to show that these two were acting in concert with the others. Concerted action need not be shown by specific declarations; frequently, the manner of showing concerted action is by circumstantial evidence; and the fact that they were members of an unlawful assembly, clad in masks and regalia that made identification difficult, under circumstances indicating that they were assembled for an unlawful purpose, justified the giving of this instruction. The court did not intend to say, and the jury could not have inferred, that two people were capable, acting alone, of committing the offense charged. The defendants contend that after the members of this hooded mob had intercepted Kimbell and his companions in the highway and ascertained their identity, and after they had offered to extricate his car from the ditch and send him on his way, the act of whipping Kimbell by two of the party was their act alone, and the other members of the party were not acting in concert or implicated with the two who actually did the whipping. Again, applying the rules of evidence applicable to conspiracy, it is not necessary that an unlawful act be perpetrated in accordance with their prearranged plan; but, if executed unlawfully, pursuant to a criminal conspiracy, the offense is deemed to have been committed by each and all of the coconspirators, unless there is proof tending to show that some one or more of them actively withdrew from the conspiracy. Under the circumstances shown, the several members of this mob stood by and acquiesced in this flogging, and it cannot be said that the offense was committed by the two persons who- did the actual beating, independent of the others.

Instruction No. 4, complained of by the defendants, reads as follows:

“You are instructed, gentlemen of the jury, that the defense interposed is what is, in law, termed an alibi, which means that the defendants, at the time the alleged crime was committed, were at some other place than the place of the commission of the crime alleged in the information; and you are instructed that if the whole proof raises in your minds a reasonable doubt as to whether these defendants were at the place of the commission of the offense at thé time it w!as committed, or were at a different place, then, in that event, your verdict should be not guilty, as to that defendant or defendants toward whom you have a reasonable doubt as to whether he or they were present at the place and time of the alleged commission of the offense.”

Defendants complain that the concluding part of the instruction, “then, in that event, your verdict should be not guilty, as to the defendant or defendants, toward whom you have a reasonable doubt as to whether he or they were present at the place and time of the alleged commission of the offense,” shifted the burden of proof to the defendants. The language of the court; “that if the whole proof raises in your mind a reasonable doubt” in connection with the instruction following, admonishing the jury that the defendants are presumed innocent until proved guilty by the state to produce such proof, was sufficient. In an instruction in Davis v. State, 17 Okla. Cr. 604, 191 P. 1044, the court said:

“The correct rule is that if the evidence of an alibi produces upon the minds of the jury a reasonable doubt of the defendant’s presence at the time and place where the alleged crime was committed, it would be sufficient to require acquittal.”

In one instruction the word “raises” is used; in the other, the word “produced”. This court will not indulge in fine distinction of syntax where the meaning of the instructions, separately and as a whole, sufficiently states the law of the case as applied to the issues raised by the proof. The contention of the defendants that these hooded knights may have been out for exercise or dress parade, or on some mission of charity or mercy, is not borne out by the testimony. This mob intercepted these people who were on a peaceful mission on the public highway, where they had a right to be. When Kimbell and his companions refused to halt, some one of the number fired a gun; there were insulting remarks made, a search of the car, and the whipping that subsequently followed, all indicating a concerted purpose to perpetrate a violent breach of the peace.

There was no instruction upon circumstantial evidence and none was requested by the defendants. Much of the evidence in this case was positive and direct, as distinguished from circumstantial evidence. That being so, it was not error to fail to. submit an instruction on circumstantial evidence.

It is next urged that the motion for. new trial should have been granted for the reason that one or more of the jurors was biased and prejudiced against members of the Ku Klux Klan, and that the witnesses for the state had made statements to others in conflict with the testimony given at the trial. These claims were supported by affidavits and in like manner controverted by affidavits. Without going into a detailed analysis of the claims made and controverted, we hold that the trial judge did not abuse his discretion in refusing to grant a new trial. That there was no pronounced prejudice among the jurors is indicated by the fact that they assessed the minimum punishment prescribed by law.

It is claimed that the hostile aggressiveness of Kimbell, his refusal of the proffer of the mob to help him out of the ditch or his failure to embrace other means of escape, was the direct cause of the chastisement they inflicted upon him. The doctrine of contributory negligence does not apply in criminal cases, and it would be preposterous to claim that these 12 or 15 chivalrous knights had to whip him in their own necessary self-defense.

Unlike the defendants, the prosecuting witness is to be commended for seeking redress through the orderly processes of law. Otherwise, there might have been one or more homicide cases here for consideration.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GUY WEBB v. STATE.
    No. A-5833.
    Opinion Filed Nov. 20, 1926.
    (249 Pac. 723.)
    Thos. C. Greer and F. H. Hurst, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was jointly charged with Wesley Webb with an assault with intent to do bodily harm. Wesley Webb was convicted of a felony, and defendant convicted of the included offense of assault and battery, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail. They filed a joint appeal to this court, and later Wesley Webb dismissed his appeal. The case was tried in March, 1925, and the sentence imposed on April 2, 1925, and the appeal lodged in this court on October 1, 1925. No brief has been filed by defendant and no appearance for oral argument made. There is no error apparent in the record.

The case is affirmed. Mandate forthwith.


author: DOYLE, J.

text:
    WILLIAM WEATHERS v. STATE.
    No. A-5574.
    Opinion Filed Nov. 20, 1926.
    (250 Pac. 805.)

      See, also, 29 Okla. Cr. 405, 234 P. 219.
    W. L. Chapman and Joe M. Adams, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was charged with having killed and murdered one Dave Hudson, on August 12, 1924. On his trial he was found guilty of manslaughter in the first degree and his punishment assessed at imprisonment in the penitentiary for the term of 4 years. From the judgment rendered in pursuance of the verdict he appeals.

The first assignment argued in the brief is that the information does not state facts sufficient to constitute a public offense. The information correctly charges the crime of murder, except that a mistake was made in writing the name “William Weathers” in one place where it was obviously intended to have written the name of “Dave Hudson”. Upon the record we think the mistake was either corrected or waived by the defendant.

The record shows that a general demurrer was filed and, without being presented, overruled, then the defendant waived the reading of the information and pleaded not guilty. In the instructions given, to which no objection was made or exception reserved, this mistake does not occur. In the motion for new trial the question of the sufficiency of the information was not raised and no motion in arrest of judgment was filed. The information being sufficient in all other respects, we are unable to see how the substantial rights of the defendant were affected by such mistake.

Our Code provides (section 2564, C. S. 1921):

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Section 2934 provides:

“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

An examination of the record leaves no reasonable question in our minds as. to the sufficiency of the information to sustain the verdict and judgment of conviction. It was the theory of the state on the trial below that the homicide was a lying in wait assassination.

The evidence shows that the defendant’s wife is a sister of Dave Hudson, the deceased, and of Laud Hudson and Ollie Hudson. It appears that on the day of the killing the defendant and the three Hudson boys and five or six others met in the neighborhood in which they lived, near a ferry on the Canadian river, about nine miles northeast of Shawnee; that when the defendant came there he had a bottle of whisky, and insisted that Ollie Hudson take a drink. Ollie refused, and the defendant said, “You will drink or fight”; and Ollie refusing again, the defendant struck him. Dave Hudson, the deceased, an 18-year old boy, separated the combatants. After the difficulty the defendant left, saying: “I will get my gun and be back in a few minutes.” Shortly after the deceased and his brother Laud Hudson, passing along the road, met the defendant, who was standing inside the fence. Laud Hudson was carrying a gun at his side. The defendant said to Laud Hudson, “Drop that gun,” Laud Hudson asked the defendant not to shoot and the defendant shot first one and then the other Hudson boys at close range with a shotgun, killing Dave Hudson and blinding and seriously wounding Laud Hudson. The defense was justifiable homicide in self-defense.

As a witness: in his own behalf the defendant testified that after the fight at the ferry the deceased told him he had better go on home or he would kill him and he went over to his house; that, intending to go fishing, he took his shotgun along to kill a rabbit for bait, and did shoot a jack rabbit in the alfalfa field; that he then started on to the river, and, meeting the two Hembry girls, he started to go on home with them; that they had gone down the road about 50 yards when he saw the two Hudson boys coming, and the girls ran away; that as they came up he said, “Laud, stop and drop that gun,” and Laud threw the gun around in front of him, and again he told him to drop that gun, and Laud started up with it, and he fired; that Dave Hudson was standing a little to the left of Laud and when he fired they both fell; that he heard their mother screaming, and he waved his hand at her and told her to see what she could do for the boys; then he returned to his home, a little more than a quarter of a mile from where the shooting occurred.

The only assignment urged in the brief is that the court erred in refusing to give the following requested instruction:

“You are further instructed that you are the ex-elusive judges of the credibility of the witnesses and the weight to be given their evidence. If you should find or believe any witness in this case, either for the state or defendant, has knowingly testified falsely, to any fact, you may disregard his entire testimony.
“Refused. Hal Johnson, Judge.”

The requested instruction was properly refused. Billingsley v. State, 4 Okla. Cr. 597, 113 P. 241.

There was no exception taken to the instructions given and no criticism made upon them in this court. They correctly and fully present the law of the case, and the defendant from all the record discloses had a fair trial.

It follows that the judgment should be and is affirmed.

BESSEY, P. J., and EDWARDS’, J., concur.


text:
    FRANK NEWMAN v. STATE.
    No. A-5273.
    Opinion Filed May 12, 1926.
    Rehearing Denied Nov. 20, 1926.
    (250 Pac. 554.)

      Grace Arnold, for plaintiff in error.
    George Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Frank Newman did, in Creek county, on or about the 21st day of February, 1922, commit the crime of burglary in the second degree, by breaking, in the nighttime, into the store building of J. F. Cadenhead, in the town of Olive, with a felonious intent to steal certain property from the building. On the trial the jury returned a verdict, finding him guilty, and fixing his punishment at imprisonment in the penitentiary for the term of two years. From the judgment he appeals and assigns as error the admission of incompetent and prejudicial evidence; that the verdict is contrary to the law and to the evidence, and error of the court in overruling his motion for a new trial.

The evidence shows a nighttime burglary of a store building in the town of Olive, occupied by Caden-head’s General Store, and the taking of about $200 worth of groceries and other merchandise therefrom; that in the evening before the robbery defendant, in company with a woman, drove in from the direction of Drumright, and stopped in front of the Cadenhead store; he got out of the car, went into the store, and bought 15 cents worth of apples; that as he left the store he stopped on the porch and was seen to make a close inspection of the windows. The next morning it was found that a large window in the front of the store and a window in the rear of the store had both been broken out. An empty paregoric bottle was found under the back window; the label on it was the Marquette Pharmacy, Drumright. Mr. Cadenhead immediately went to Drumright and examined the pharmacy poison record and found that this bottle of paregoric had been sold the day before. A search warrant was procured for defendant’s house in Drumright. Quite a quantity of goods, identified by Mr. Cadenhead as having been taken from his store on the night before, were found in defendant’s house.

At the close of the state’s evidence there was a motion for a directed verdict on the ground that the evidence was insufficient to sustain, a conviction, which was overruled and exception taken.

The only evidence offered on the part of the defense was that which tended to prove an alibi. The defendant’s father testified that he lived about six miles southwest of Kaw City, and, on February 19th, visited his son at Drumright, leaving there on the morning of February 22d; that he slept with defendant on the night of February 21st, and defendant did not leave his home that night. The defendant did not testify and no evidence was offered tending to explain his possession of the stolen goods.

It is contended that the evidence obtained by reason of the search of the defendant’s residence was erroneously admitted, because the same was procured by an illegal search warrant. This assignment is not supported by the record. The search warrant, or the affidavit on which it was issued, was not introduced in evidence. It has been repeatedly said by this court that error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. Upon the record before us defendant wholly failed to meet the burden resting upon him to affirmatively show that this evidence was obtained by an illegal search.'

It is also contended that the trial court erred in admitting testimony of the prosecuting witness as to the cost mark used by him on the groceries found iii defendant’s possession, in that the articles themselves would be the best evidence of what was written upon their labels. If the defendant had disputed the fact of the finding of the stolen goods in his house, then he might with some degree of consistency assert that he was injured by this evidence concerning the cost mark on the labels, but, in the absence of any dispute on this issue, the error, we think, if any, Was harmless;

It is also contended that the verdict is not sustained by sufficient evidence, and is contrary to law. It is not questioned that the goods described in the information were stolen at the time and place therein stated, nor that defendant was in the store that evening, or that he examined the windows of the store building at the time, or that a large part of the stolen goods were found in his home the following day. The only defense sought to be made is that of alibi, supported solely by the testimony of defendant’s father. After a careful examination of the record we think that the verdict is not only sustained by the evidence, but for the jury to have found otherwise would have been to ignore both reason and the teachings of experience.

Finally, it is contended that the motion for a new trial should have been sustained on the ground of newly discovered evidence, based on the affidavit of one Alexander, who was a witness for the state on the trial of the case, wherein he states that, while still the owner of the Marquette Pharmacy, he was approached in his store by Frank Taylor, assistant county attorney, and by him shown a two-ounce bottle with a Marquette Pharmacy label on it and marked “Paregoric” and asked to examine the bottle, together with his record of poisons sold on a certain date; that he did examine his record of poison sales on said date and found approximately a dozen sales of two-ounce bottles of paregoric, to as many different persons, and affiant was unable by any means to ascertain to whom and upon what date this particular bottle had been bought. It is evident that this proof could have been, by proper cross-examination, developed on the trial of the case. Futhermore, the alleged newly discovered evidence is immaterial to such an extent as to make it obvious that, had anything been proved at the trial, as al-, leged, that Alexander would testify to on another trial, there would be no likelihood of a different result.

Ordinarily, motions for new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court, and we think, on the record in this case, no abuse of discretion is shown.

It appearing that defendant had a lawful and fair trial, and was properly convicted, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    HUBERT CLARK v. STATE.
    No. A-5840.
    Opinion Filed Nov. 20, 1926.
    (250 Pac. 551.)

      T. H. Davidson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Hubert Clark, was tried, convicted, and, in accordance with the verdict of the jury, sentenced to be confined in the county jail for 30 days, and to pay a fine of $50, on an information charging that he did sell one-half pint of whisky to J. V. Hefley, receiving therefor $2. From the judgment he appeals.

The undisputed proof on the part of the state was to the effect that the witness Hefley, in company with the witness Davis, went to the Turner Hotel, in Muskogee. There Hefley told defendant that he wanted a half pint of corn whisky. Defendant left, returned in a few minutes, and delivered the whisky, saying: “My price is $2,” and Hefley handed him two $1 bills.

Numerous errors are assigned, and it is insisted that “the court was without jurisdiction to impanel the jury and try said action, because the amended information has not been reverified.”

It appears that, when the case was called for trial, defendant objected to an alleged amendment of the information, in that the original information charged the name as “Hubbard Clark,” which was amended to read “Hubert Clark,” and that the information so amended was not reverified. The objection was overruled, and the case proceeded to trial over the objection of the defendant.

Assuming that the court permitted an amendment to be made as alleged, which is not properly shown by the record, such amendment was not one in matter of substance and therefore could not have been prejudicial to the substantial rights of the defendant. It follows that the objection was properly overruled.

We have examined the other errors assigned, and our conclusion is that they do not merit consideration. The judgment appealed from is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    W. J. JAMISON v. STATE.
    No. A-5272.
    Opinion Filed Nov. 20, 1926.
    (250 Pac. 548.)

      D. S. McDonald and Utterback & Stinson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter ¿ailed defendant, was convicted in the district court of Bryan county for the crime of manslaughter in the second degree and sentenced to serve a term of two years in the state penitentiary.

The record discloses a state of facts about as follows: Defendant was a deputy sheriff living at the town of Kemp, where deceased also resided; up to the time of the difficulty their relations had been friendly. Some days before the difficulty defendant, with the town marshal, arrested two Indians for drunkenness, and they had been fined, and it appears claimed they had been overcharged in the matter of costs, and had asked deceased to adjust the costs with defendant. At the time of the difficulty just after dark, defendant was at a store and deceased came in. He told defendant he wanted to see him, and they stepped out on the porch in front of the store building, where deceased took up with defendant the matter of costs. This apparently angered defendant, who called deceased a liar, and in substance told him when he wanted an attorney he would let him know, and that if he butted into his business any more he would “biff” him right in the mouth, to which deceased answered: “Go ahead and biff!” Defendant thereupon struck deceased in the face and a fight was precipitated in which deceased knocked the defendant down and was pulled off by some bystanders. Defendant immediately renewed the fight, and deceased again knocked defendant down, and he arose with a pistol in his hand, which was discharged and deceased shot in the right breast, from which he died in about 20 minutes. Immediately after the shooting defendant declared the shot was accidental and he had not intended to fire the pistol but merely to strike deceased with it. There is little conflict in the evidence.

The first assignment of error argued is the exclusion of competent evidence offered by defendant. This is directed to an offer to prove the reputation of the defendant as a diligent, energetic, and peaceable officer. Evidence was admitted that defendant had the reputation of being a peaceable and law-abiding citizen, and this was conceded by the state. The homicide, however, was not committed by defendant in attempting to arrest deceased or in the exercise of any of his duties as a peace officer. He was not acting in an official capacity at the time of the homicide, but merely as a private citizen. His reputation as a peace officer was not an issue in the case and had not been attacked in any manner. It was a collateral issue, and this evidence was properly excluded.

It is claimed the court erred in refusing defendant’s requested instruction No. 4, which in substance embodies the law of self-defense by one unlawfully attacked, and concludes in substance that if deceased brought on the difficulty, in the course of which he did defendant serious bodily injury, and the appearances were such as to justify defendant in believing that he would suffer further great bodily harm, and that he drew his gun for the purpose of using it as a club to protect himself from the unlawful attack of deceased and in so defending himself it was accidentally discharged, as a result of which deceased was killed, then they should acquit the defendant. This request is not particularly objectionable as a statement of the law of self-defense applicable to the facts proven. The gist of this request, however, is given in the court’s charge, as quoted in the next assignment of error, which is directed to the court’s instructions Nos, 11, 12, and 13. No exception was taken to instruction No. 11, nor was it assigned as error in the motion for a new trial. These instructions follow:

“(11) In this case the defendant, as a part of his defense, claims that he acted in self-defense during the difficulty which ended in the death of said Garvin Sweeney. In this connection you are instructed that the law gives every person who is unlawfully assaulted or attacked the right to defend himself from such assault or attack in order to avoid death or serious bodily harm at the hands of his assailant, and when it appears to him, as a reasonable man, that he is in danger of being killed or of receiving great personal injury at the hands of his assailant, he has the right to defend himself therefrom even to the extent of taking life. But you are instructed that this law of self-defense is defensive in its nature and not offensive — that is, one cannot make an assault upon another, nor can he voluntarily enter into a difficulty with another, and claim the right of self-defense, if during the difficulty which ensued he himself was in danger of being killed or of receiving great personal injury at the hands of his opponent and to protect himself from such danger, kills or injures his adversary,
“(12) You are therefore instructed that if you believe from the evidence, or have a reasonable doubt thereof, that at the time and place mentioned in the information the said Garvin Sweeney made an assault, that is, made a willful and unlawful attempt or offer with force or violence to do the defendant a corporal hurt, which led the defendant, situated as he was and as a reasonable man, to believe that the said Garvin Sweeney was about to kill him or do him some great personal injury, and that the defendant did honestly and really believe that he was in imminent danger of losing his life or of receiving some great personal injury at the hands of said Garvin Sweeney, and that under such conditions and circumstances the defendant drew his gun for the purpose of using it as a club to protect himself from the attack of said Sweeney, and that in using said gun to so protect himself he used that degree of care and caution in handling the gun that a person of ordinary caution and prudence would have used under like or similar circumstances, and that while so using said gun it was discharged at and into the body of said Sweeney inflicting a wound upon the said Sweeney from which he thereafter died, then and under these circumstances the killing of said Sweeney' by the defendant would have been justifiable, and it would be your duty to acquit the defendant and return a verdict of not guilty.
“(13) You are further instructed that homicide cannot be justified or excused on the ground that the person killed, prior to the killing, had committed a mere assault and battery upon the person doing the killing, but when an assault and battery has been committed upon the person who did the killing, this may be taken into consideration by the jury in determining whether it reasonably appeared to the person who did the killing that he was at the time in danger of losing his life or of receiving great personal injury at the hands of his assailant.”

It is urgently insisted that these instructions are erroneous in telling the jury that defendant must have acted as a reasonable man in order that his right of self-defense avail — that the jury were thereby misled to the prejudice of defendant. The evidence must be viewed in a favorable light to warrant the giving of an instruction, on the theory that deceased made an attack on defendant. The evidence fairly discloses a case of mutual combat. Upon this point the defendant upon cross-examination testified:

“* * * Q. Now, he told you he would like to go down with you to Daddy John and get that matter fixed up, didn’t he? A. No, sir.
“Q. Didn’t he tell you that he had been instructed by these Indians for whom he worked to see you and try to get that matter settled? A. Not in that language, Mr. Hatchett.
“Q. What did he say? A. I told him that it was not any of his business, and he said that it was his business — that the Indians had told him to collect the cost from me.
“Q. Well; what was the language that brought up the question of a liar? A. About the charge, I guess; I said it was all, and he said it w|as not.
“Q. Well; did you call him a liar. A. Yes, sir; I think so.
“Q. And he called you a liar? A. Yes, sir.
“Q. Which one passed the lie first? A. I don’t remember.
“Q. Now, you also told him that whenever you needed a secretary that you would call on him, didn’t you? A. Yes, sir.
“Q. He told you that he didn’t want the job? A. Yes, sir.
“Q. You also told him that if he didn’t quit meddling in your business that you were going to biff him one right between the eyes? A. I don’t know whether I said between the eyes or not; I told him that I would hit him or something like that.
“Q. That if he didn’t quit interfering with your business you were going to hit him? A. Yes, sir.
“Q. Then, he said, ‘Hit away’? A. Yes, sir.
“Q. Yes, sir; then you hit? A. Yes, sir; we both hit right then.
“Q. Well; you hit first, didn’t you? A. No, sir; I don’t thin^k I did.
“Q. Do you know who hit first? A. I think we both struck at the same time. * * *
“Q. When you called him a liar, you got pretty mad in order to do that, did you not? A. Yes, sir.
“Q. Now, you could have hit the first lick, could you not? A. I could have done it.
“Q. You won’t tell the jury that you hit the first lick. A. I will tell the jury that both struck at the same time — just about the same time.
“Q. But you don’t know which one hit the first lick? A. No, sir; I don’t know which one hit first; we both started about the same time; I don’t know which one struck first.
“Q. And you tell the jury that you told him before any lick was struck that if he didn’t quit interfering with your business you were going to hit him? A. If he didn’t keep his mouth out of my business.
“Q. And he told you to hit? A. Yes, sir.
“Q. Then the fight started? A. The fight started. * * * »

If the correct test of the right of self-defense is that a reasonable man situated as defendant was or as it reasonably appeared to him would have acted as defendant did, there is no error in the instructions. In 30 Corpus Juris, pp. 30, 31, § 176, the rule is stated as follows:

“ * * * A reasonable conclusion under the circumstances that accused was. in immediate danger of death or great bodily harm, although in fact no such danger existed, will be sufficient to eliminate the elements of malice and felonious intent, the appearance and not the reality of danger being the test, although defendant must have entertained an honest belief that he was in such danger, his act must be necessary or honestly believed by him to be necessary to prevent the injury, and the circumstances must have been such as to excite the fear of a reasonable man. * * * ”

In 13 R. C. L. p. 818, § 122, it is said:

“The rule adopted by a number of the states, and what seems to have been the common-law rule, is that when a person is assaulted, and kills his assailant in self-defense, the question to be determined is, Did the slayer, under all the circumstances as they appeared to him, honestly believe that he was in imminent danger of losing his life, or of suffering great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger? and not, Would a reasonable man, or a mam of reasonable courage, have so believed? The jurors, say the courts giving support to this rule, must place themselves in the position of the defendant at the time of the act, and determine, from all the facts as they appeared to him, whether his apprehension or fear of death or serious bodily injury was reasonable. What appears to be the prevailing rule in America asserts that the apprehension of danger and belief of necessity which will justify killing in self-defense must be a reasonable apprehension and belief, such as a reasonable man would, under the circumstances, have entertained. (Italics ours.) Under this rule, a man threatened with death must determine from appearances and the actual state of things surrounding him, as to the necessity of resorting to self-defense; and, if he acts from reasonable and honest convictions, he will not be responsible criminally for a mistake as to the extent of the actual danger where other judicious men would have been, alike, mistaken.”

Here it will be noted that the rule at common law and that adopted by a number of the states differs from what appears to be the prevailing rule as stated in the text quoted. There are authorities supporting the common-law rule and the rule of some of the states as above quoted. The latter rule, however, has been followed by the territorial court and by this court. In the case of Wells v. Territory, 14 Okla. 436, 78 P. 124, syllabus 11, it is said:

“A homicide is justifiable, by one without fault, who is attacked by another, where the circumstances furnish reasonable ground for apprehending a design to take his life or do to him some great bodily harm, and for believing the danger imminent, and that such design will be accomplished though it may turn out that the appearances were false, and that there was in fact no such design, nor any danger of its being accomplished. But the facts must be such that the jury in the light of all the facts and circumstances known to him at that time or by him then believed to be true, can see that as a reasonable man he had ground for such belief.”

In Turner v. State, 4 Okla. Cr. 164, 111 P. 988, an instruction was approved stating that the law required the jury to view the circumstances at the time from the defendant’s standpoint, as they reasonably appeared to him — that is, that the circumstances as they appeared to him were sufficient to excite the fears of a reasonable person that his life was in danger, or in danger of great personal injury being done, or apparently so.

Also, in the case of Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532, it was held that the trial court should have given an instruction that the jury should take into consideration the facts and circumstances, etc., that defendant as a reasonable man in good faith believed at the time of the killing that his life was in danger or in danger of great bodily harm, etc.

The rule announced is not contrary to the holding of this court in the case of Rogers v. State, 8 Okla. Cr. 226, 127 P. 365. In that case the jury were instructed that before they would be justified in acquitting the defendant on the ground of self-defense, that ought to believe the defendant’s cause for apprehension was reasonable, and unless the facts constituting such cause were shown by the evidence in the case, they could not acquit the defendant on the ground of self-defense even though they believed that defendant really thought he was in danger. There the burdén was placed on the defendant not to raise a reasonable doubt of his apprehension of danger at the time he fired the fatal shot, but to affirmatively establish by the evidence that his apprehension was reasonable, based upon reasonable cause. That is, the instruction there told the jury they must believe that the defendant was not guilty before they could acquit.

The law requires that the circumstances and appearances relied upon as creating an apprehension of danger be viewed from the defendant’s standpoint and be such as to cause the defendant situated as he was, as a reasonable person, an apprehension of danger. Mere cowardice, without circumstances as viewed from the defendant’s standpoint to cause him to reasonably apprehend danger, will not justify a killing on the ground of self-defense.

Upon the whole case, we find that the case was fairly tried, the evidence supports the verdict, the instructions correctly submit the issues to the jury, and no error materially prejudicial is apparent.

The case is affirmed.. ..

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


author: EDWARDS, J.,

text:
    KATHERINE COLE MORRISON v. STATE.
    No. A-5886.
    Opinion Filed Nov. 20, 1926.
    (250 Pac. 543.)

      B. C. Trice and Walter L. Gray, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.,

The plaintiff in error was convicted in the district court of Osage county on a charge of driving an automobile while intoxicated, was sentenced to pay a fine of $250, and to be imprisoned in the state penitentiary for a term of one year.

The record discloses a state of facts about as follows: On March 25, 1925, defendant drove an automobile along the streets of Pawhuska, collided with a Ford car, but did not stop, and a short distance farther ran over, and severely injured, a small boy on a bicycle, drove several blocks, finally stopped her car, and was apprehended. The evidence is that in driving the movement of the car was erratic, and several times she got off the road. When the officers and others arrived where she had stopped they smelled whisky. Defendant appeared to be intoxicated, laughed, talked, and staggered. One witness testified she could hardly stand. Defendant denied that she was intoxicated, and stated that she did not know she ran into the Ford, and that she did not see the boy, and did not run over him. .

It is first contended that the statute (chapter 16, Session Laws 1923) under which the prosecution was had is unconstitutional, as in violation of section 57, art. 5, of the Constitution. This contention has been considered at some length in the case of Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168, No. A-5883. just decided by this court adversely to the contention of the defendant.

Complaint is next made that the information is insufficient to charge a public offense. No' demurrer was filed to the information and no objection to the introduction of evidence interposed, but, after verdict, motion in arrest of judgment on account of insufficiency of the information was filed. It is generally held that, where a defendant goes to trial without demurring to an information, and first questions its sufficiency by objection to the introduction of evidence, every intendment and presumption will be indulged in to sustain the information. Where no demurrer is filed nor objection made, and an information is first challenged by a motion in arrest of judgment, the same rule obtains. The motion should be overruled, unless there is some fatal defect which is not waived by failure to demur or object. Section 2756, Comp. Stat. 1921; 8 R. C. L. 228; Feige v. State, 11 Okla. Cr. 49, 142 P. 1044. The information in this case sufficiently charged the offense defined, and there is no merit in the contention.

It is next argued that the court erred in. overruling the application for continuance. At the time the case came to trial, defendant filed an application for a continuance on the ground of illness. The court made an examination, and took evidence of physicians and others as to the ability of the defendant to be present and participate in the trial, and we believe the court was fully warranted in overruling the application. The defendant was brought into the court on a stretcher, and remained there during the trial. We have examined with care the record upon this point, and find no abuse of discretion in the action of the trial court. We think the court was warranted under the showing made in requiring the defendant to proceed to trial. 16 C. J. 457, § 828: State v. Rogers, 43 P. 256, 56 Kan. 362.

Other contentions are made, all of which have had consideration, and none of which require any special discussion. None present any error requiring a reversal.

The case is affirmed.

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


text:
    DAVE WALKER v. STATE.
    No. A-5258.
    Opinion Filed Nov. 20, 1926.
    (250 Pac. 539.)

      Utterback & Stinson, and Minter & McClendon? for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Ass’t Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was, on a charge of murder, in the district court of Marshall county, convicted for manslaughter in the first degree and sentenced to serve a term of 20 years in the state penitentiary.

A brief summary of the facts developed on the trial are that in the year 1922, the deceased, McAdoo, lived on a farm belonging to defendant, Walker. During the year a dispute had arisen between them over the sale of some whisky in which they were both interested, which dispute apparently had been reconciled, after which defendant loaned McAdoo 3^ sacks of sugar and a barrel. Just prior to the fatal difficulty McAdoo had sold a stalk field on Walker’s place for $50 and had not paid Walker, who, as landlord, claimed to be entitled to one-third of that sum. On the day of the homicide defendant went to' the house of one Dillard, where McAdoo was, to collect this rent. He asked to see McAdoo, who came out, and they walked a short distance and began arguing about their business matters. In the course of the quarrel defendant drew a pistol and shot deceased in the breast, from which he died almost Immediately. Defendant testified substantially as the other witnesses in reference to the quarrel, and, further, that deceased made some motion which made him believe that he was about to draw a pistol, and that he then drew his pistol and forced deceased to desist. After some further quarreling deceased again made a movement and advanced upon him, and he thereupon struck the arm of the deceased with the pistol, which was thereby accidentally discharged and killed McAdoo.

Defendant contends that the court erred in overruling the challenges to the jurors Adamson and Easley, and in not discharging the jury and declaring a mistrial on defendant’s motion made before the conclusion of the trial. On voir dire examination, the juror Adam-son stated that he had talked to some of his neighbors who had heard part of the evidence at the preliminary, and from that had formed an opinion which would require evidence to remove. The juror stated further, however, that regardless of what he had heard he would not permit anything other than the evidence on the trial to influence him, and if retained would go into the jury box and render a fair and impartial verdict. The juror Easley stated that he had formed an opinion from rumor, but if selected as a juror that he would decide the case upon the evidence and give both the state and the defendant a fair and impartial trial.

The record is in such shape, however, that we are unable to say that the proceedings disclose prejudicial error. The record does not purport to give the entire examination of these jurors, and we cannot determine whether the omitted part of the examination would have modified materially the statements appearing in the record. Further, the record does not disclose that either of these jurors sat upon the panel that tried the defendant. If they sat upon the panel, it does not appear that the defendant exhausted or in fact used any of the peremptory challenges given him by law. In the trial of a criminal case a defendant is presumed innocent, and this presumption continues with him until it is overcome by competent evidence, beyond a reasonable doubt. When, however, the trial has been completed and the jury has returned its verdict finding a defendant guilty there is then no presumption against the regularity of the proceedings. The presumption then is that the verdict of the jury is right — that the proceedings were regular. The burden is on the defendant on appeal to this court to show affirmatively some error which prejudiced some substantial right; otherwise the judgment of the trial court will be affirmed. Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Colbert v. State, 4 Okla. Cr. 500, 113 P. 558; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Beatty v. State, 5 Okla. Cr. 105, 113 P. 237; Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Robbins v. State, 12 Okla. Cr. 294, 155 P. 491.

Complaint is made of the action of the court in overruling the motion to declare a mistrial before the case was finally submitted to the jury, and in overruling the motion for a new trial on account of the disqualification of the juror Roberts. At about the time the arguments of counsel were concluded, defendant filed a motion to declare a mistrial, setting up that this juror prior to the trial had stated in the presence of one Rutledge Harris that if he were on the jury he would convict Walker. An affidavit of Harris to this effect was attached to the motion to declare a mistrial. This motion was overruled, and after verdict the same matter was embodied in the motion for a new trial. The court heard evidence upon this part of the motion. Harris testified that while he was loading cross-ties at Kingston, Roberts said that if he were on the jury he would convict Dave Walker. There was also introduced an affidavit signed by him to the effect that his affidavit attached to the motion was not read to or read over by him, and that he was not aware of the contents when he signed it. There was also an affidavit from Roberts stating that the Walker case was mentioned in the presence of Harris and one John Woods, but that he did not make a statement that he would convict Walker if he were on the jury, nor words in substance to that effect, and that all the statements made were in the presence of John Woods. Woods when called as a witness testified that he heard a conversation between Roberts and Harris; that one of them was in favor of Walker and the other one was not. He did not recall any of the words said. There were some other affidavits from the attorneys and stenographers as to the statements made at the time of the taking of the different affidavits. On this showing the court overruled the motion for a new trial. Under the showing made we think this was not an abuse of discretion.

It is next argued that the court erred in refusing defendant’s requested instruction No. 1. This request was in substance that evidence' tending to prove deceased had made threats to do bodily harm to defendant had been introduced and the jury should consider this evidence In connection with all the other evidence in determining who was the probable aggressor in the fatal difficulty. There was some slight evidence that deceased entertained ill will toward defendant and had made some statement that defendant had beat him out of some money and if he found out for sure he would not beat any one else. Threats, either communicated or uncommunicated, are admissible as tending to throw light on who is the probable aggressor in a difficulty, particularly where there is reasonable appearance of danger, and a court should so instruct in such circumstance. The only evidence relied upon as a threat is that of the witness Burton, as just stated. This, we think, hardly rises to the dignity of a threat, but at best is a mere “mouthing,” and in light of the evidence of the eyewitness and that of defendant, the refusal to give the requested instruction is not prejudicial.

Some other assignments of error are discussed in the brief, and, while they are not discussed, have had consideration, and no error which would warrant a reversal appears.

The .case is affirmed.

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


text:
    BILL BRISTER v. STATE.
    No. A-5632.
    Opinion Filed Sept. 11, 1926.
    Rehearing Denied Nov. 20, 1926.
    (250 Pac. 442.)

      Andrews & Aston, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of malicious mischief, sentenced to pay a fine of $50, and to serve 30 days in the county jail.

It appears from the record that the defendant and the prosecuting witness Clarence Travis were neighbors, farming land divided by a partition fence; the live stock of Travis on a number of occasions broke through this division fence and trespassed on the land in the possession of defendant. On account of this, a state of ill feeling had arisen between them so they did not speak to each other when they met. On the day of the offense charged, Travis’ stock were trespassing on the land of defendant, who sent him word to remove them within an hour. This was not done, and defendant shot and killed 2 young mules and a mare, the property of Travis. The sufficiency of the evidence is questioned, and, while it is sharply conflicting, it was a question of fact for the jury, and there is abundant evidence to sustain their verdict. The statute under which the prosecution was had, section 2232, Comp. St. 1921, provides that any person who maliciously destroys any personal property, not his own, other than in certain enumerated sections of the statute, is guilty of a misdemeanor, and the punishment is provided, under section 2263, at imprisonment in the county jail not exceeding one year or by á fine not exceeding $500, or by both imprisonment and fine.

Complaint is made of the court’s instruction number 5, in which the jury are told that malice is a necessary ingredient of..the. offense; that before they can find the defendant guilty they must find beyond a reasonable doubt that the defendant killed the stock, and that he did so willfully and deliberately and by reason of malice which he held against Clarence Travis. So far this instruction states the law. Colbert v. State, 7 Okla. Cr. 401, 124 P. 78. The court, however, added to the foregoing that, if the jury find that defendant killed said stock as alleged but had no malice toward the owner, then they could not under the law find him guilty of the offense charged. It is insisted that the latter clause shifts the burden to defendant to show that the killing of the stock, if they should so find, was without malice, citing Washmood v. U. S., 10 Okla. Cr. 254, 136 P. 184, and Adair v. State, 15 Okla. Cr. 619, 180 P. 253, and other authorities. The latter clause of the instruction is surplusage and has no application to the evidence. The trial court evidently tacked it on to his instruction for the purpose of cautioning the jury that it was essential to prove malice. There is no contention that the killing of livestock was without malice. The state of feeling between the prosecuting witness and defendant clearly proved malice. We do not approve this part of the instruction, but it does not afford a sufficient reason for a reversal.

The trial court in submitting to the jury the punishment in case of a verdict of guilty, said:

“ * * * It will be your duty to fix the punishment which must be a fine not exceeding $500 and imprisonment in the county jail for- a period not exceeding 6 months, either or both, at your discretion, there being no minimum.”

The court was in error in stating that the punishment must be a fine and imprisonment, while in the latter part of his instructions he stated that it might be either or both. This renders the two parts of the instruction conflicting and may have confused the jury. The judgment will be modified, by omitting entirely the imprisonment, and, as thus modified, the error was harmless.

The case is affirmed.

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


text:
    J. H. RAY v. STATE.
    No. A-5450.
    Opinion Filed Oct. 23, 1926.
    Rehearing Denied Nov. 20, 1926.
    (250 Pac. 438.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the district court of Oklahoma county with shooting with intent to kill, and was convicted of assault with a deadly weapon, and sentenced to serve a term of one year in the state penitentiary.

Upon an. examination of the record, it. appears that on March 6, 1924, E. D. Boyle, a man 65 years of age, went to the village of Wright Station to repair a residence owned by him. Near the residence the defendant had a garage. Some time before that Boyle had filed a civil suit involving the boundary between his property and that of defendant. While Boyle was making the repair on his building, defendant came over, and sought to talk about their civil suit, which Boyle declined to do. When Boyle had completed his repair some 30 minutes after his arrival, he took his tools, and started to leave the premises, and was met near the porch by defendant, who shot him in the breast with a pistol, seriously wounding him.

. Several assignments: of error are argued in the brief, and such as are deemed material will be considered. Complaint is made, first, that the verdict is not responsive to the charge in the information. The verdict is as follows : ,

“We, the jury, drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant guilty of assault with a dangerous weapon, and fix his punishment at one year and one day in the state penitentiary.
“Mike Donnelly, Foreman.”

The case is similar to that of Polk v. State, 15 Okla. Cr. 324, 176 P. 538. In the Polk Case, however, the punishment was not assessed by the jury, and defendant objected to its being received. Here no objection was made, and the verdict fixes the punishment, which clearly shows that the jury finds the defendant guilty of a felony in shooting without intent to kill, as defined in the first subdivision of section 1764, Comp. Stat. 1921. Certainly the charge of a felonious assault by shooting with intent to kill (section 1756, Comp. Stat. 1921) in-eludes the lesser offense of shooting another without intent to kill as defined in section 1764.

In the case of Castleberry v. State, 26 Okla. Cr. 59, 221 P. 1044, this court said:

“The offense defined by section 1764, Comp. St. 1921, an assault with a dangerous weapon, is a lesser degree of assault and included in the offense defined by section 1756, Id.”

See, also, Johnson v. State, 12 Okla. Cr. 261, 154 P. 1004; Simmons v. State, 15 Okla. Cr. 442, 177 P. 626; Bonner v. State, 23 Okla. Cr. 44, 212 P. 440; Horton v. State, 35 Okla. Cr. 80, 248 P. 878.

It is next contended that the court erred in excluding evidence offered by defendant and in admitting incompetent evidence offered by the state. This is directed at the exclusion of details of the civil suit between Boyle and defendant and in reference to Boyle’s efforts to procure witnesses for the trial of the case and some other items. There was no offer of proof made in most of the instances complained of, such as is required to preserve the question. Winfield v. State, 18 Okla. Cr. 257, 191 P. 609; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726.

The items of claimed incompetent evidence admitted are questions propounded to the character witnesses of defendant, if they had heard of certain difficulties or claimed difficulties in which defendant had participated. It is well settled that the exclusion of evidence or the improper admission of evidence is not ground for a reversal, unless upon the entire record the court is of the opinion that there has been a miscarriage of justice or a substantial violation of a constitutional or statutory right. Leard v. State, 30 Okla. Cr. 191, 235 P. 243; Dawson v. State, 33 Okla. Cr. 326, 244 P. 57; Russell v. State, 17 Okla. Cr. 164, 194 P. 242. It is not error to permit a character witness on cross-examination, for the purpose of testing his knowledge and credibility, to state whether or not he heard of rumors and charges against defendant inconsistent with the character which he has testified to.

It is also argued that the court was without jurisr diction to try defendant or to pronounce judgment, for the reason that defendant had not entered his plea to the information. The record shows that the defendant was arraigned and entered a plea of not guilty. Later this plea was withdrawn, and a demurrer and a motion to quash were filed. The plea of not guilty seems not to have been again entered. This question in some form has been before this court several times. Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Hast v. Territory, 5 Okla. Cr. 162, 114 P. 261; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116; Sherman v. State, 19 Okla. Cr. 269, 200 P. 262; Little v. State, 25 Okla. Cr. 190, 219 P. 242.

The defendant announced ready for trial, and participated in the trial without making any objection that he had not entered his plea. He made no objection when the county attorney in his opening argument stated that he had entered his plea of not guilty, nor did he except to the court’s instructions informing the jury that a plea of not guilty had been entered.

We adhere fully to what was said by this court in the case of Simpson v. State, supra:

“Under the provisions of the Code of Criminal Procedure, a defendant has the right to plead to the indictment or information. He may, in answer to the arraignment, either move the court to set aside the indictment or information, or may demur or plead thereto. In exercising this privilege the defendant is required to act in good faith. He cannot sit quietly by and say nothing about his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment or information is not a constitutional requirement, and, while it was a part of the procedure at common law, in this state it is statutory and it is now well settled that a statutory right may be waived even in capital cases. If the defendant had not been arraigned and asked to plead, it was his duty to claim the right to plead before announcing ready for trial, which the record here shows that he did not do. The jury had been informed in his presence that he had pleaded not guilty, and, after the state had introduced its evidence and rested, he introduced his evidence and made his defense, the same as though his plea had actually been entered.”

Error is also assigned in the overruling of the motion for a new trial on the ground of newly discovered evidence. We have examined the motion and the affidavits attached thereto in connection with the entire record. If it be conceded that there is a sufficient showing to obtain the evidence in the first instance, the evidence offered as newly discovered is, nevertheless, cumulative, and there is no reasonable probability that the jury upon another trial, if one should be granted, would arrive at any different conclusion. Howey v. State, 9 Okla. Cr, 453, 132 P. 499; Diffey v. State, 10 Okla. Cr. 190, 135 P. 942: Johnson v. State, supra; McKenzie v. State, 34 Okla. Cr. 233, 245 P. 1005.

Some other assignments of error are argued, all of which have had consideration, but none of which require any special discussion. The errors complained of are not prejudicial. Considering the entire record, we find that defendant had a fair trial; that the instructions correctly submit the law; that the evidence abundantly supports the verdict. In fact, we believe that the defendant was extremely fortunate in receiving as light a sentence as was imposed; that the record would support a more severe punishment.

The case is affirmed.

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


text:
    BILL STAFFORD v. STATE.
    No. A-5665.
    Opinion Filed Sept. 8, 1926.
    Rehearing Denied Nov. 20, 1926.
    (250 Pac. 438.)
    H. A. Grove, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment and sentence of confinement for 60 days in jail and a fine of $100, rendered on a verdict finding Bill Stafford guilty upon a charge that he did unlawfully have in his possession five barrels of mash, fit for distillation and manufacture of whisky.

The sole question presented is the sufficiency of the evidence to sustain the conviction. The testimony of three deputy sheriffs shows that in the afternoon of the date alleged they visited the defendant’s premises four or five miles northeast of Jenks in Tulsa county, and in a pump house a quarter of a mile south of the defendant’s house they found five or six barrels of mash buried in the sand, and also found a boiler buried under the drive belt. The defendant had charge of the pump house and stated to the officers that he had been sick for two or three days, and guessed that somebody had buried the stuff in there while he was sick. The proof further shows that the mash Was fit for distillation.

As a witness in his own behalf, the defendant testified that he was employed by the Vick Oil Company as a pumper, and had -occupied the premises there for about two years; that previous to the raid he had been sick for two weeks; that he did not own the mash, and did not put it there, and had never before been arrested.

An examination of the record leaves no reasonable question in our minds as to the sufficiency of the evidence to justify submitting to the jury the question as to the defendant’s guilt.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    FRANK HALBERT v. STATE.
    No. A-5512.
    Opinion Filed Sept. 25, 1926.
    Rehearing -Denied Nov. 20, 1926.
    (250 Pac. 436.)

      E. C. Patton and Joe Adwpn, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county for the larceny of domestic fowls in the nighttime, and his punishment fixed at imprisonment in the penitentiary for a term of 5 years.

Briefly stated, it appears from the record that on the night of April 7, 1924, a number of chickens was stolen from the hen house of Otto Griffin, said hen house was 25 or 30 yards from the residence, fenced in, and on the premises of the dwelling house. Griffin discovered his loss the next morning, and, upon search, found the tracks of two men, and the track of a Ford car with certain peculiarities of tread in some plowed ground back of the hen house. He traced this to a road leading to Oklahoma City, and then notified the police in El Reno; they communicated with the Oklahoma City police, who discovered defendant and a co-defendant named Klein unloading the chickens at the Phillips Produce Company. The police questioned defendant and Klein, and defendant gave his name as Jackson* and stated that he was a farmer and lived near Calumet, in Canadian county. They were taken to the police station and again questioned. Defendant admitted his name was not Jackson, but then claimed it was Manning, and that he purchased the chickens from Griffin. Griffin identified the chickens. Upon the trial, defendant testified that he loaned the truck with which the chickens were carried, to Klein, his co-defendant; that he met Klein that morning in Oklahoma City, but did not know the chickens were stolen.

No exceptions were taken to any of the instructions. The only assignment of error argued is that the evidence is insufficient to sustain the verdict, it being contended there is no proof showing that defendant had possession of the stolen chickens, but that the evidence show's the guilt of his co-defendant, who pleaded guilty to the charge. It is true that the proof of the guilt of the defendant is circumstantial, but certainly evidence that he furnished the truck with which the chickens were transported and1 assisted in disposing of them early on the morning after they were stolen, that he gave a fictitious name when questioned, and gave a false explanation of his connection with his co-defendant and claimed to have acquired the chickens by purchase, utterly refutes his testimony.

If this evidence is not sufficient, then few cases resting on circumstantial evidence will ever be affirmed. The jury evidently disbelieved his testimony, as they were thoroughly warranted in doing. The punishment assessed is severe. It ought to be severe. . The thief who prepares himself, as the evidence here discloses, to prey upon the country, by robbing hen roosts by night as a business should receive substantial punishment.

The case is affirmed.

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


text:
    HARVE REAGAN v. STATE.
    No. A-5631.
    Opinion Filed Aug. 21, 1926.
    Rehearing Denied Nov. 20,' 1926.
    (250 Pac. 435.)
    Bowling & Parmer, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county on a charge of grand larceny, and was sentenced to serve a term of one year in the state penitentiary. Briefly stated, the facts as gathered from the record are about as follows: Eldon Butler, complaining witness, was a passenger on a Santa Fe night train, south from Oklahoma City. The defendant, in a somewhat inebriated condition, was a passenger on the same train. Butler had a suit case which contained two pistols, a shotgun which had been taken down, and various items of clothing1, all of á value of $50 or more. He put his suit case in the rear of the smoking car and took his seat in the next car. The news agent testified that between Oklahoma City and Paoli, where defendant left the train, he twice saw the defendant in possession of the suit case in question, attempting to open it. After defendant left the train, Butler discovered his suit case was missing. On the second day following it was found under the bed at the home of defendant. Defendant testified that on the trip from Oklahoma City to Paoli he was partially intoxicated. He explained his possession of the suit case by saying that a stranger came to him and pawned it for the sum of $7; that no memorandum was taken; that he did not know its contents.

It is first argued that the instructions of the court are insufficient in failing to instruct the jury that intoxication may render an accused unable to form a felonious intent, and in such case not guilty. In disposing of this contention, it is sufficient to say that no request for such instruction was made. If defendant relied on this claim, he should have requested an instruction. Branham v. State, 16 Okla. Cr. 308, 182 P. 525; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263. Defendant testified that he was “feeling pretty good”; and he detailed what he asserts took place, evidently having a clear, recollection of the entire circumstances of the claimed pawning of the suit case. He did not contend that he was so intoxicated that he did not comprehend what he was doing or was unable to form an intent. A single answer of his testimony is as follows:

“A. I never saw him before in my life. I gave him a light. I reached out my cigarette like that and gave him a light off of my cigarette, and he says, ‘How far are you going, or where are you getting off at?’ I told him I was getting off at the next stop, which was Paoli. We had just left out of Wayne, and I says, ‘Where are you going’?’ ‘Well,’ he says, ‘I have got a ticket for Pauls Valley, but,’ he says, ‘I have been playing pitch up there on the train.’ He says, ‘I have went broke;’ and he says, ‘I intended to go to Pauls Valley to see a friend down there and then go on to Ardmore, but’ he says, ‘I don’t want to get off down there broke.’ He says, ‘I want to put up my grip, and if you have got any money I would like to put up my grip to you for a little money.’ Now, I asked him what he wanted on it, and he says he wanted $10. I told him I did not have $10. I had the $10 all right, but I didn’t want to give it to him for that, and he says, ‘I will tell you what I will do.’ He says, ‘If you will give me $7,’ he says, ‘I will come back tomorrow and not later than the next day and give you $10 back.’ He says, ‘I will go on to Ardmore instead of getting off at Pauls V(alley.’ ”

The offense is alleged to have occurred February 3, 1924, and the trial took place December 2, 1924, and it occurs to us that the defendant had a remarkably clear recollection of what he claims occurred. The trouble is that the jury did not believe him, but evidently considered this mysterious stranger, who came on the scene at this opportune time, as a figment of the imagination, and classed him along with William Tell and Santa Claus.

It is next contended that the court erred in permitting the state to cross-examine defendant as to other transactions not connected with the case. This assignment is directed to question on cross-examination which disclosed that defendant had formerly been convicted in the district court of Garvin county on a charge of burglary and had served a term in the penitentiary, and had at another time pleaded guilty in the county court of Garvin county to the sale, transporting, or having possession of whisky. It may be shown on cross-examination that a defendant has been convicted of a crime for the purpose of affecting his credibility. Section 585, Comp. St. 1921; Key v. State, 10 Okla. Cr. 206, 135 P. 950; Busby v. State, 10 Okla. Cr. 343, 136 P. 598; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609.

The case is affirmed.

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


text:
    JOE ESTES v. STATE.
    No. A-5834.
    Opinion Filed Nov. 22, 1926.
    (250 Pac. 809.)
    J. S. Garrison and Yerker E. Taylor, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Garvin county, November 8, 1924, Joe Estes did have in his possession about 1% gallons of corn whisky, with the unlawful intent of selling the same. On the trial, the jury returned a verdict as follows:

“We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find, from the law and the evidence, the defendant, Joe Estes, guilty, as charged in the information, of unlawful possession of intoxicating liquor and assess his punishment at $250 and six months in county jail, with the recommendation that he be paroled on good behavior on the jail sentence.”

Motion for new trial was duly filed and overruled. The judgment of the court was that defendant pay a fine of $250 and serve six months in the county jail. From such judgment, he appeals.

It is assigned as error that the verdict is so uncertain that no valid judgment can be rendered thereon.

In our opinion, the verdict of the jury is not uncertain. It fixes defendant’s punishment, and the clause in it to which the defendant objects is merely a recommendation that the court suspend the jail sentence imposed during good behavior. It is, in no sense, a part of the verdict. It was improper to make this recommendation in the verdict, but it does not affect the verdict in any way and is not prejudicial to the defendant.

Under the assignment that the court erred in overruling the defendant’s motion for a directed verdict, it is contended that there was no evidence tending to support the allegations in the information, except such evidence as was procured by an illegal search of the defendant’s home.

J. E. Moore, town marshal, testified that he had a search warrant, but he did not show it to the defendant or defendant’s wife; that, later, he turned it over to Mr. Eoss.

W. E. Bail, deputy city marshal, testified that he accompanied his chief, but did not see a search warrant or know anything about one.

E. W. Ross, justice of the peace of Lindsay township, testified that he issued a search warrant to search the premises of the defendant on a complaint made by Town Marshal Moore, but he has been unable to find the complaint and did not think the warrant was ever returned to him.

Charley Worley testified that, as sheriff of Garvin county, he received from J. R, Moore some liquor, purported to have been seized at the home of the defendant, Joe Estes.

The defendant, Estes, testified that he has conducted a shoe shop in Lindsay for six years and lived in another part of town with his wife and child; that Jack Sullivan delivered the whisky the night before the officers seized it.

The defendant’s wife testified that Marshal Moore appeared at the house and said that he came to search the. place; she asked him tó show a search warrant, and he said he had it in-his, pocket, but did not show it to her. '

Affidavit of complaint, upon which a liquor search warrant issues, is required to be filed and remain on file in the office of the officer who issues such warrant, and the officer is required, to make return of such warrant, within three days, showing all acts and things done thereunder. A eopy of said warrant shall be served upon the person or persons found in possession of any intoxicating liquor, and, if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same is found. Section 7009, C. S. 1921.

The record shows beyond a doubt that no search warrant was served, as required by law, and the search of the defendant’s home was without authority of law. It has been repeatedly decided by this court that evidence in liquor prosecutions, obtained by an unlawful search and seizure and contrary to section 30 of the Bill of Rights, is inadmissible against the defendant as being in violation of section 21 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself. Committi v. State, 28 Okla. Cr. 380, 231 P. 316, and cases cited.

It also appears that the instruction given by the court in connection with the statutory definition of prima facie evidence, which was excepted to, is faulty, in that it places on the defendant the burden of rebutting the unlawful intent.

For the reasons stated, the judgment is reversed.

BESSEY, P. 'J., and EDWARDS, J., concur.


text:
    BEN SHELTON v. STATE.
    No. A-5817.
    Opinion Filed Nov. 23, 1926.
    (250 Pac. 1118.)
    J. A. Shirley, for plaintiif in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Ben Shelton, was convicted on a charge that in Bryan county, February 11, 1926, he did make and manufacture, by means and use of a certain apparatus commonly known as a whisky still, certain spirituous and intoxicating liquor, to wit, one-half pint of moonshine whisky, and. in accordance wth the verdict of the jury was sentenced to pay a fine of $100 and to be confined in the county jail for 60 days. He has appealed from the judgment, but no brief has been filed, and no appearance made on his behalf in this court. After a careful examination of the record in this case, both as to the law and the evidence, we have failed to discover anything whereof the defendant has just right to complain. The judgment is accordingly affirmed.


author: BESSEY, P. J.

text:
    LEE FOLLEY v. STATE.
    No. A-6335.
    Opinion Filed Nov. 27, 1926.
    (250 Pac. 1118.)
    J. Earl Smith, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

Lee Folley, plaintiff in error, was convicted of the crime of robbery by use of firearms, with his punishment fixed at imprisonment in the state penitentiary for a term of seven years, and he appeals. The plaintiff in error was unable to give a supersedeas bond pending appeal, as required by the court, and for some months has been incarcerated in the penitentiary at McAlester. By a communication received from plaintiff in error, it is made to appear that he desires to abandon the appeal and asks that the appeal be dismissed. A cursory examination of the record indicates that there is no merit in the appeal. The request is granted, and the appeal is dismissed and a mandate ordered forthwith, directing the warden of the penitentiary to execute the judgment of the trial court, according to its terms.

DOYLE and EDWARDS, JJ., concur.