author: DOYLE, P. J.

text:
    TOM SMART v. STATE.
    No. A-2716.
    Opinion Filed August 31, 1918.
    (174 Pac. 299.)
    1. APPEAL AND ERROR — Review—Motion for New Trial. As a general rule, tbe finding of the trial court upon an issue of fact arising upon affidavits and evidence adduced on a motion for new trial will not be disturbed, where the evidence reasonably tends to support such finding.
    2. SAME — Discretion of Court. Where, in a motion for new trial on the ground that the defendant did not have a fair and impartial trial before an impartial jury, affidavits are attached to the motion tending to show that two of the persons selected as jurors had previously formed and expressed opinions as to the guilt of the defendant, and the state files controverting affidavits of the jurors named, wherein they deny making any such statements, and on the issue of fact thus raised testimony is taken and the motion for a new trial is overruled, held that, in the absence of a showing of abuse of discretion, the decision of the trial court will not be disturbed.

      Appeal from District Court, Adair County; John H. Pitchford, Judge.

      Tom Smart was convicted of murder, and appeals.
    Affirmed.

      Pete Helton and W. L. Chase, for plaintiff in error.

      ;S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction of murder and sentence in accordance with the verdict of the jury of imprisonment for life at hard labor. The information charged the defendant, Tom Smart, with the murder of one John Sanders, alleged to have been committed in Adair county on or about the 14th day of September, 1915.

The evidence shows that. there was a stomp dance north of Proctor, and about 9 o’clock at night on the day alleged in the information John Sanders, a deputy constable, with one or two other officers, left the dance and went to a mountain near by to apprehend whisky peddlers, and there found Tom Smart with two or three gallons of whisky near by. One of the officers spoke to Smart, and he commenced shooting at them with a pistol. Numerous shots were exchanged. John Sanders fell mortally wounded and died the next day. Jerry Leep testified that he had just bought two quarts of whisky from Smart, and that Smart fired the first shot. Another witness testified that he sold Tom Smart a sack of bottles that evening. Othei witnesses testified that at the stomp dance that day Tom Smart said he would kill the first man that crossed his trail that night.

As a witness in his own behalf, the defendant testified' that the whisky found near where the shooting occurred belonged to his son, Frank, and Jim Leep; that together they left his home that evening to go to the stomp dance, and he stopped where they placed the whisky in a hollow of the mountain, waiting for Jim Leep to bring a horse for him to ride on down to the stomp dance; that he carried his pistol with him "that evening because a neighbor, Frank McGowan, had made threats that he was going to kill him; that while he was waiting two or three men came up the trail, and one of them struck a match and pointed a pistol at him; that, thinking it was Frank McGowan, he drew his pistol, and one of the men shot him; that he then fired several shots in self-defense. Other evidence for the defense tended to show that Frank McGowan .had threatened to shoot the defendant.

Upon a careful consideration of the record, we find •that the only error assigned of sufficient merit to require notice is that the court erred in overruling the motion for a new trial. One of the grounds of the motion is that the defendant did not have a fair and impartial trial before an impartial jury, in that "two of the jurors, viz., A. J. Arnett and Walter Bateman, had, before they were selected as jurors, formed and expressed their opinion as to the guilt of the defendant. In support of this ground, the affidavits of J. G. Gordon and Clara Gordon were filed, wherein affiants state that the juror Arnett, speaking of the first trial of the defendant, Tom Smart, said that he could not see how a jury could fail to agree on a verdict, that he had heard the evidence, and that the defendant, Tom Smart, ought to have been convicted and sent to the penitentiary or the electric chair. Also the affidavit of Emery Hughes, wherein affiant states that he inquired of Walter Bateman if he knew how the jury stood in the Smart Case, meaning the first trial, and Bateman said that the jury stood seven for murder and five for manslaughter, and that from what he had heard the defendant, Tom Smart, should have been convicted. The motion alleges that at the time said jurors were accepted neither the defendant nor his attorneys knew that said jurors had made such statements, or that they had formed or expressed any opinion as to the guilt of the defendant. In reply to said motion and affidavits thereto attached, the state filed the controverting affidavits of the jurors Arnett and Bateman. On the issue of fact thus raised, testimony was taken. ' The affiant Gordon was called, and testified that juror Arnett made the statement as set forth in his affidavit. On cross-examination he admitted that he had been convicted of gambling several times and that he had followed no vocation other than gambling for the past two years. Affiant Hughes was called, and testified that he was the manager of the Club pool room at Stilwell, and that the juror Bateman stated to him, “From what he had heard he thought he would be. stuck, or something like that.” The jurors, Arnett and Bateman, each testified that he made no such statement, nor any similar statement.

It is a settled rule of this court that the finding of the trial court upon a question of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed, where the evidence reasonably tends to support such finding. Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350. In the case of Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271, it is said:

“It is well settled that, as a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify on a challenge for cause, which existed before the juror was sworn, but which were unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.”

We are of opinion that the defendant had a fair and impartial trial, and the trial court properly overruled the motion for new trial.

Aside from the testimony of the defendant that he fired the shots in his necessary self-defense, the evidence is undisputed that he fired the fatal shots in an effort to prevent the officers from apprehending him and seizing the whisky in his possession.

Upon the law of the case, the charge of the court was full, clear, and adequate to a proper instruction of the jury, and upon the whole case we have failed to discover any prejudicial error. The judgment of the district court of Adair county herein is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    A. J. BLANKENSHIP v. STATE.
    No. A-2946.
    Opinion Filed August 31, 1918.
    (174 Pac. 298.)
    TRIAL — Instructions—Testimony of Accomplice. When the state uses tbe testimony of an accomplice to establish its ease in chief, the trial court cannot rightfully refuse to charge the jury that they are prohibited by law from convicting the defendant upon this evidence -unless it is corroborated by other testimony tending to connect the defendant with the commission of the offense.

      Appeal from County Court, Caddo County; C. R. Johnston, Judge.

      A. J. Blankenship was convicted of violating the prohibitory law, and he appeals.
    Reversed and remanded, with directions.

      W. W• Vaughn, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

A. J. Blankenship was convicted at the November, 1916, term of the county court of Caddo county on a charge of unlawfully conveying intoxicating-liquor from one place in Caddo county to another place-therein, and his punishment fixed at a fine of $50 and imprisonment in the county jail of Caddo county for a period: of 30 days.

The incriminating facts detailed by the witnesses for the state were related by an accomplice. No other witness-testified to facts sufficient to support a judgment of conviction or to facts sufficient to connect the plaintiff in error with the commission of the offense. The court was requested on behalf of the plaintiff in error to give the following instruction:

“Gentlemen of the Jury: You are instructed that under the evidence in this case that the witness Chan Kunkel is an accomplice to the crime charged in the information, should you find a crime was so committed under the evidence, and in this connection you are instructed that the defendant, A. J.»Blankenship, cannot be convicted upon-the testimony of an accomplice unless the accomplice be-corroborated by such other evidence as tends to connect the defendant with the commission .of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

This was refused, and no instruction covering the principle was given.

In Fairgrieve v. State, 10 Okla. Cr. 109, 134 Pac. 837, it is said:

“Whenever the state uses the testimony of an accomplice, the court has not the right or power to refuse to charge the law laid down in the statutes upon any material question. It matters not how anxious a jury may be to believe the testimony of an accomplice; they are prohibited by law from convicting a defendant upon such evidence unless it is corroborated by other testimony tending to connect the defendant with the ^commission of the offense; and such an instruction must be given, when requested in cases where the state relies upon such evidence.”

It appears that the court overlooked the law and failed to give this instruction on a vital proposition in the case. Blankenship was apparently a man of some standing in his county, having been the Republican nominee for sheriff against the Democratic incumbent, who signed the complaint against him. There is nothing to indicate that he had anything to do with the intoxicating liquor in question outside of the testimony given by another person who was jointly charged with the crime, and who under his' testimony and the law was an accomplice if his statements were true, to the effect that Blankenship helped bring the beer and whisky to the car. Blankenship denied this statement, and said he had nothing whatever to do with the transaction and was only a passenger in the automobile and had no control over it or over the whisky and beer. He contended that he was in the car only for the purpose of taking an intoxicated neighbor* home. It therefore. became essential for the court to give the instruction requested or one involving the principle of law applicable. The court having refused to give the requested instruction and having failed to give any other proper instruction covering this phase of the case, there is no alternative left this court, but to’reverse the judgment and remand the cause, with directions to grant a new trial, to be conducted according to law;.,,.;.

It is so ordere'd.

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


text:
    AARON BESHIRS v. STATE.
    No. A-2717.
    Opinion Filed September 7, 1918.

    1. EVIDENCE — Testimony of Witness Not Found — Indorsement of Names on Information. In a ixrosecution for murder, where the testimony of a witness was given at the preliminary examination and his testimony was taken by the reporter, in the presence of the defendant and his counsel, who cross-examined him, and such testimony is transcribed and filed with the court cleric, held, that if the witness is not present at the final trial, and the state shows that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury; and held, further, that it is immaterial that the names of the witnesses used by the state to prove that defendant had been confronted by the witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon, the information.
    2. HOMICIDE — Degrees—Intent—Evidence of Intoxication. In a prosecution for murder, evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce the degree of homicide from murder to manslaughter in the first degree must -be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine.
    3. SAME — Murder—Manslaughter in First Degree. A person who , commits a homicide while so drunk as to be incapable of forming a premeditated design, to kill, if he had formed no purposa to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.

      4. SAME — Instructions—Evidence. In a homiéi'cle - case it is not error to refuse the defendant’s request for - instructions submit: ting the issue of manslaughter in the second degree, where there is no evidence tending to establish that degree of homicide.

      Appeal from District Court, Bryárí County; Jesse M. Hatchett, Judge.

    Aaron Beshirs was convicted of manslaughter, and •he appeals.
    Affirmed.

      McPherren & Cochran, for plaintiff in- error.

      S. P. FreeUng, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a conviction had in the district court of Bryan county, in which plaintiff in, error was found guilty of manslaughter in the first degree and his punishment assessed at imprisonment in the penitentiary for the term of ■ 17 years. The information charged the defendant, Aaron Beshirs, with the murder of one Walter Smith, alleged to have been' committed in Bryan county on or about the 5th day of ‘September, 1915.

The evidence was substantially as follows:

Lucy Purvis testified that she was staying at the home of her sister, Mrs. Joe Beshirs, and on Sunday afternoon, September 5, 1915, Ada Beshirs was there, and Walter Smith, the deceased, called there about three o’clock; that the defendant called there about four o’clock, and left shortly afterwards; that she and Ada Beshirs, with Walter Smith, started that evening in a buggy to go to singing at Yuba, and after going some distance they met the defendant. who asked, “Is that you, Walter?” and Mr. Smith said, “Yes,” and he then asked, “Where are you going and who have you with you ?” and Mr. Smith replied, “To the singing, with Lucy and Ada”; that the defendant then began cursing Mr. Smith, and they drove off and left him; that they met Wayne Creager, and the defendant overtook them and again began cursing Mr. Smith and calling him vile names, and Mr. Smith asked Mr. Creager to take the defendant back, as he did not want the girls to hear him cursing; that they had not gone far when the defendant overtook them again and rode up alongside of the buggy with a bottle in his hand, and he hit at Mr. Smith with the bottle and said he was going to throw the bottle at him, and Ada, his sister, said, “He should have more respect for her than that,” and the defendant answered, “That he did not care if he was dead and went to hell- in .fifteen minutes,” and he rode alongside, the buggy cursing Smith and hit at him with the bottle, and thexi struck Mr. Smith on the temple, and Mr. Smith fell over in the buggy and somebody caught the team.

W. A. Creager testified that he met the defendant that evening, and he whooped and hallooed and said he was a fighting son-of-a-bitch; that the defendant had a bottle in his hand; that witness rode off and left him, and soon the defendant overtook him and they overtook Walter Smith, with the defendant’s sister, Miss Ada Beshirs, and Miss Lucy Purvis, in the buggy; that the defendant began cursing Smith,' and Smith asked witness to take him away, and they stopped and the defendant got off of his horse; that in a few minutes the defendant got-on his horse and said, “Creag, let’s go catch up with them,” and he started on pretty fast; that he heard the girls screaming, and when he reached the buggy, in front of Mr. Stowers’ house, the defendant was in the buggy with Smith; that Mr. Stowers took the bottle away from him and. pulled him out of the buggy, and told him to go on home or he would hurt him; that the defendant asked witness to catch his horse for him; that he caught his horse and led it to him, and he got on and said he would go home and get his gun and come back and “kill the damn son-of-a-bitch,” and rode off.

Fred Stowers testified that he lived near Yuba; that after dark on Sunday, September 5th, he heard women screaming a few hundred yards from his house, and a few minutes later he heard screaming jn front of his house, and somebody was calling for help; that he went to the road and met the girls near the roadside, and Walter Smith was in a buggy, and the defendant climbed into the buggy and grabbed Smith around the neck; that he took the bottle away from the defendant and pulled him out of the buggy and told him to go home quick or he would hurt him; that the bottle was a quart bottle, and in his judgment would weigh a pound or a pound and a half; that the next day Walter Smith was taken home, and from there they started with him to Dallas, and he died on the way; that the deceased had a cut on his temple about an inch long, and about two hours after he was taken into the house he became unconscious, and remained unconscious until he died.

Dr. Hagood testified that he examined the body shortly after death, and found a wound on the temple about an inch long, and found a depressed fracture of that part of the skull.

As a witness in his own behalf, the defendant testified that he was 18 years of age; that he had known Walter Smith about 12 years, and they were good friends; that he met and talked with him that Sunday afternoon at his brother Joe’s house; that he then went to the Carter farm' and got a quart of whisky and' drank it'all, except'two drinks that he gave to John Malone; that they then went to Will Gennon’s and had supper there, and .the last thing that he remembered was that he started home; that the next thing he remembered he was at his brother Joe’s place, when' the. officers woke him up that night; that he knew nothing about Walter - Smith being hit with a bottle that night, except what they told him, and he did not at any time knowingly strike Walter Smith with a bottle.

Of the various errors assigned, only two are urged in the brief for a reversal of the judgment.

The first is that the court erred in permitting, over the objection of the defendant,-a transcript of the testimony of Vesta Swindell to be read to the jury.

It appears from the record that as a predicate for the introduction of the transcript Ed Swindell was called as a witness and testified that he was a brother of Vesta Swindell; that he last saw him at Ravenna, Texas, where he bought a ticket and took the train for Smithfield, Texas, and at the time of trial he was at Smithfield, Texas. It was then agreed by counsel for the state and the defendant “that the transcript of the testimony taken at the examining trial and filed as a part of the-record in this case contains a true and correct copy of the testimony of one Vesta Swindell, who appeared as a witness on behalf of the state in the examining trial of the case.” The state then offered the transcript, and the defendant objected to the introduction of. this testimony “for the reason that the same is incompetent, irrelevant and im- . material, and it is not shown that witness -is without the jurisdiction of this state.”

J. T. Hightower, a deputy sheriff, was called, and he testified that he knew Vesta Swindell; that he served the subpoenas in this case and made inquiry as to the whereabouts of Vesta Swindell, and several persons told him .that Vesta Swindell was at Smithfield, Texas, and he was not in the state when the subpoenas were served. It further appears that the name, “Vesta Swindell, Post Office, Yuba,” appears on the list of witnesses duly served on the defendant.

The court overruled the objections, and the testimony of said witness as taken upon the preliminary examination was read to the jury.

This court has repeatedly held that the testimony of a witness given on a preliminary examination by one who is absent from the state is admissible on the trial on the information when it is satisfactorily proven that said witness is absent from the state.

In the case of Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453, it is held:

“In a prosecution for murder, where the testimony of a witness was given at the preliminary examination, and his testimony was taken by the reporter, in 'the presence of the defendant and his counsel, who cross-examined him, and such testimony is transcribed and filed with the court clerk, held, that if the witness is not present at the final trial, and the state shows that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury; and held, further, that it is immaterial that the names of the witnesses used by the state to prove that defendant had been confronted by the witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.”

In our opinion the proof of absence from the state was sufficient. It follows that the objections interposed were properly overruled.

Second: “That the court erred in refusing to instruct the jury as to the law of manslaughtér in the second degree.”

It appears from the record that the defendant requested several instructions submitting the issue of manslaughter in the second degree, which were refused and exceptions allowed. The instructions given by the court properly submitted the issues of murder and of manslaughter in the first degree. The only defense made was that the defendant was so intoxicated as to be incapable of forming a premeditated design to kill.

Under our Penal Code:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.” (Section 2095, Rev. Laws 1910.)

In a prosecution for murder, evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which-will reduce the degree of homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for thé jury to determine. A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he formed no purposé to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree. Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919.

On the undisputed facts of this case, the instructions requested were properly refused, because there is nothing in the evidence tending to show facts entering into the statutory definition of manslaughter in the second degree.

After a very careful examination of the record, we find that the other assignments of error are without merit.

Finding no prejudicial error, the judgment of the district court of Bryan county is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    WILLIE CARNES v. STATE.
    No. A-2827.
    Opinion Filed September 7, 1918.
    1. APPEAL AND ERROR — Discretion of Trial Court — Continuance. An application for a continuance on account of absent witnesses is addressed to the discretion of the trial court, and a judgment of conviction will not be reversed on the ground that the court refused to grant such continuance, unless there appears to have been a manifest abuse of discretion.
    2. APPEAL AND ERROR — Harmless Error — Homicide—Evidence— -Admission of Testimony of Witness Since Deceased, (a) The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is complied with when the defendant has had the opportunity to cross-examine said witnesses in a preliminary trial before a justice of the peace. When -this has been done, and upon a subsequent trial of said cause it is satisfactorily proved that any such witness has since the said preliminary examination, died, the testimony of such witness given at such preliminary examination and reduced to. writing and signed by him is admissible upon the subsequent trial.

      (b) Where the evidence of a witness who is dead at the time of the trial, but who had been examined at the preliminary examination and his evidence reduced to writing as aforesaid, was admitted upon the trial over the objection and_ exception of the defendant, and it clearly appears that such evidence would have tended only to increase the degree of the crime from manslaughter to murder, and the conviction obtained is only for manslaughter, this court will not reverse such conviction even if such evidence was improperly admitted upon the trial, as it does not appear that its admission under such circumstances was prejudicial to the defendant.
    3 . TRIAL — Witnesses—Indorsement of Names on Information— Necessity. Where, in a capital case, the defendant is furnished a list of witnesses, together with ,their post-office addresses, 'that will be used .in chief against him, more than two days before the case is called for trial, it is not prejudicial error for the court to allow one of such witnesses to testify in chief against the defendant, although the name of said witness was not indorsed upon the information prior to the time of trial.

      Appeal from District Court, AtQka County; J. H. Linebaugh, Judge.

    Willie Carnes was convicted of the crime of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a period of four years, and he appeals.
    Affirmed.
    This killing occurred in Atoka county in the month of July, 1914. It was the outgrowth of a quarrel between some full-blood' Indians. The deceased, Moses Bond, was a man 80 years old or over, while the defendant, Willie Carnes, at the time of the killing was 33 years of age. The homicide occurred at the home of one Jacob Frazier, since deceased, who was also a full-blood Indian.
    •On the day of the killing it appears that the defendant and an Indian woman by the name of Caroline Anderson gathered at the home of Harrison Bond, a son of the deceased, who lived about a mile from Jacob Frazier. Another Indian woman, by the name of Maud Davis, or, as she was sometimes called, Maud Jordan, and Harrison Bond were also present, at Bond’s house, and took dinner there on the date of the killing. Shortly after dinner Harrison Bond and Willie Carnes went out into the yard or field not far from the house to a place where a keg of Choctaw beer was located, and drank some of the beer. It was also in evidence that a bucket or two of beer was carried to the house and consumed by. .the aforementioned girls.
    Along some time in the afternoon old man Moses Bond appeared at Harrison Bond’s house, and he too drank some beer. Just what occurred thereafter does not clearly appear from the evidence. According to some of the state’s witnesses, a quarrel- arose between Harrison' Bond and Maud Davis, or Jordan, in which Harrison Bond undertook to chastise her, and. in which Willie Carnes interfered. It is not clear that old man Moses Bond was present at this time, or if-present, that he took any part in such difficulty.
    The defendant testifies that he and old man Bond got into a quarrel at Harrison Bond’s house, and that old man Bond accused him, Carnes, of having some knowledge as to who killed his, Bond’s, wife. Any knowledge of this Carnes denied, and he left Harrison Bond’s premises along about six o’clock in the evening on horseback, but not before, the defendant says, old man Bond pulled him off of his horse. At any rate, he, defendant, proceeded to Jacob Frazier’s house, and Caroline Anderson either preceded in a journey to Jacob Frazier’s, or else went along about the same time that Carnes did. Afterwards old man Bond was heard coming towards Frazier’s house whooping and singing, as is the custom of full-blood Indians when intoxicated.

      Just what occurred after old man Bond reached Frazier’s premises is not clear. According to the witness Caroline Anderson, she and Jacob Frazier were sitting out on the porch at Frazier’s house, and heard a sound something like the heating on a rotten log with a stick or club. Their attention being attracted by this noise, but not being able to see anything, they went out towards the field gate, which was located in a fence surrounding a cow-lot near the premises, and there found old man Bond lying prostrate on the ground, and Willie Carnes •with a club in his hands close by. With the assistance of Caroline Anderson and Frazier, old man Bond was guided to the porch at Frazier’s house, and he lay down upon the same. Willie Carnes stayed at Jacob Frazier’s house and slept in a bed there until old man Bond died at four o’clock the next morning. The occurrence above set forth, wherein old man Bond was apparently injured, occurred along about eight o’clock in the evening, or shortly thereafter. It was then just about dark.
    After the old man’s death his body was examined, and, according to one witness, his skull was crushed in, and his left arm broken in two places, and some of his ribs were broken loose from the spinal column. Such injuries were apparently fatal, and were the proximate cause of his death.
    The defendant contends that he was assaulted by old man Bond with a knife, and that at the time he struck old man Bond Harrison Bond had come over to Jacob Frazier’s and was urging old man Bond to kill defendant, and at the same time Harrison had defendant around the body holding him; that he, defendant, struck old man Bond with a club which he accidentally stumbled over while scuffling to get away from Harrison Bond; that he at no time intended to kill old man Bond, or to hurt him seriously; that everything he did was in defense of his own person and was justifiable.
    The witness Jacob Frazier testified at the examining trial that he discovered near the corner of his house, the next morning after the killing, a club which was a home-made baseball bat, made of bois d’arc, on which said club spots of blood and a few hairs were found. The defendant, however,- claims that such was not the club used by him, but that he used a club. about three feet long and not quite so heavy as the instrument claimed to have been found by Frazier, which club the defendant claims he took to bed with him that night, but did not preserve it. Caroline Anderson, a state’s witness, testified that she found a stick of wood in the bed in which Willie Carnes slept on the morning after the homicide, but that she threw it into a pile of stove wood, believing that it belonged there.
    The foregoing is a narrative statement of the material facts in the case. Other minor detail were testified to, but a statement of same is not essential.

      J. H. Gernert and Paul Pinson, for plaintiff in' error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Among several assignments of error relied upon for a reversal of this judgment, it is strenuously contended that the court erred in overruling the defendant’s motion for a continuance on account of the absence of Molsie Eeed, Katie Impson, and Maud Davis, or Jordan. This motion for a,.continuance.was .filed on.the 8th day of . February, 1916, the. date .the ¡case was set for the trial in which this conviction was had. However, it appears that this killing occurred in July, 1914; that shortly thereafter a preliminary examination .of this defendant was had; that the information charging this offense was not filed in the district court until July, 1915; that thereafter, in the fall term of 1915, a trial of this defendant was had which resulted in a mistrial, so that it appears that the defendant had from July or August, 1914, until February, 19.16, in 'which to martial his evidence in defense. The record does not disclose that these witnesses were subpoenaed in behalf of the defendant at the fall term of court when the mistrial occurred'. In fact, there is a very slight showing of any diligence whatever to procure the attendance of these witnesses, or to preserve their testimony. Under the showing made, the motion for a continuance being addressed to the sound discretion of the trial court, we cannot say that there was such an abuse of discretion in this instance in the refusal to grant a continuance as would authorize'the reversal of this judgment. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Sayers v. State, 10 Okla. Cr. 233, 136 Pac. 1073; White v. State, 9 Okla. Cr. 442, 132 Pac. 381; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 835; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956; Cox v. State, 9 Okla. Cr. 378, 131 Pac. 1109.

It is also contended that the court erred in admitting as a deposition part of the testimony of the deceased witness Jacob Frazier, reduced to writing at the preliminary examination and signed by said witness.

The record discloses that the defendant was present at such preliminary examination, was notified of his right to counsel, and signified his desire to proceed without the aid of counsel. Neither the county attorney nor any other lawyer was present representing the state. The examination was had in the country before a justice of the peace, and the sheriif of the county assumed the role of interrogator of the witnesses, and the evidence was reduced to writing by one of the deputy sheriffs. It is nowhere contended that the witness Frazier did not testify to the facts contained in said deposition or signed written statement. It is contended, however, that the admission of such testimony was prejudicial to the defendant, in that it constituted hearsay testimony, and that the defendant was not given an opportunity to cross-examine the said Frazier by counsel or otherwise; also, that said testimony had a tendency to inflame the minds of the jurors against the defendant, in that he was the only witness who attempted to connect the defendant with the said club or base-ball bat, which was introduced in evidence and shown to be a heavy and dangerous weapon, and one that had probably been prepared for such purpose, and did lead the jurors to believe that the killing was willful, deliberate, and premeditated.

The latter contention would be of considerable force had defendant been convicted of murder. However, a$ the conviction was only for manslaughter in the first degree, with the infliction of the minimum punishment, counsel’s argument fails to convince the court of merit.

As to the first contention, it may he said that there are certain exceptions to the hearsay rule which permit evidence of this character to be admitted entirely from the necessity of the case. We believe the showing here was sufficient, under the decisions of this court hereinafter set forth. The defendant was confronted with the witness, and, although the deceased witness was a full-blood Indian and testified through an interpreter, he and his interpreter talked the identical language used by the defendant, and the defendant was present during the entire proceeding. The defendant was offered the benefit of counsel, but waived same. This he admits. It is clear that, the defendant being present, the opportunity was afforded him to cross-examine this witness had he desired. The evidence was admissible under the following decisions: Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812; Stealer v. State, 10 Okla. Cr. 460, 138 Pac. 395; Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561.

In this connection it is claimed that, because the name of Jacob Frazier alone was indorsed upon the information, the defendant was not advised that the deposition or written statement would be used by the state instead of a living witness. The position here taken was assumed by counsel representing plaintiff in error in the case of Warren v. State, supra, wherein it was held:

“The constitutional requirement that in homicide cases the defendant shall be furnished at least two days before the case is called for trial with a list of the witnesses who will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses, does not apply to witnesses who are called to testify as to the residence of absent witnesses whose names have been furnished to the. defendant, and to the' further fact that such witnesses testified in the preliminary examination of the defendant, and that the defendant was present, and that an opportunity was afforded him for cross-examining such witness.”

The name of the deceased witness was indorsed upon the information and included in the list of witnesses served, and the fact that other witnesses were used to prove the death of such witness between the time of the preliminary examination and the time of trial was not prejudicial to the defendant.

It is also contended that the court erred in allowing one Richard Foster to testify in chief against the defendant, because the name of said witness had not been indorsed upon the information prior to the time of trial. It is admitted, however, by counsel for the defendant that the name of this witness, together with his post-office address, was served upon the defendant more than two days prior to the date the case was set for trial, as one of the witnesses who would be used in chief against him.

The objection here urged is purely technical. Prior to the adoption of our Constitution, the names of all witnesses examined before the grand jury were required to be indorsed on the indictment. At that time prosecutions for a felony by information were not permissible. Since the taking effect of our state Constitution, however, prosecutions for a felony by information, after a preliminary examination, are permissible, and in such cases the names ' of the witnesses who are to be used in chief should be indorsed on the information as well as upon an indictment. However, as a matter of extraordinary precaution, the framers of the Constitution provided that in all capital cases “a list of the witnesses that will be used in chief to prove the allegations of the indictment or information, together with their post-office addresses, shall be furnished the defendant at least two days before the case is called for trial.” (Section 20, art. 2, Constitution.) This was a special provision applicable only to capital cases, and it was clearly the intention of the framers of the Constitution, and of the people when they adopted same, to substitute this method of informing the defendant of the names of the witnesses who would be called in chief to convict him in a capital case. The defendant was not only to be provided with the names of the witnesses, but also with their post-office addresses; this, in order -that he might know not only who was to be called, but also where to find them.

The mere failure, after having served a list as required by the constitutional provision, to indorse the name on the information did not deprive the defendant of that substantial guarantee which was intended for his. protection. He received by the service of this name, together with the post-office address, all the benefits, and more, that could have accrued to him had the name been indorsed upon the information before trial. The indorsement of this name upon the information after such service became merely a formality, and not a matter of substance for which a reversal should follow. •

It is also contended that the court erred in refusing to- strike that part of the testimony of Harrison Bond in which the said witness testified that his father, the deceased Moses Bond, told him a short time after the diffi-' culty occurred that the defendant, Willie Carnes, had struck him. While the evidence complained of was not responsive to any question propounded, we are convinced that its admissipn was, under the circumstances of the case, proper as a part of the res gestae. The question “as to what constitutes the res gestae is possibly the most’ complex and difficult question in criminal law,” as was said in Price v. State, 1 Okla. Cr. 364, 98 Pac. 447. It was there held, however, that courts can'only deal with the subject in the light of the facts of each particular case when the occasion arises. We are of the opinion that the evidence admitted was sufficiently connected with the assault itself to tend reasonably to explain it.

Other minor assignments of error are also urged as grounds for a reversal of this judgment, and we have carefully examined same, and thoughtfully considered the able and exhaustive brief of counsel who represent defendant. The court is confronted with the killing of an old man upwards of 80 years of age by a stalwart youth of 38. The homicide occurred when it was practically dark, and yet this defendant contends that the necessity for this killing was occasioned by the deceased assaulting him with, a knife, when it was hardly possible that "he would have been able to see a knife had such a weapon ever been drawn upon him. Also, it is somewhat remarkable that iii the midst of such a melee, and at a time he claims he was being held by a son of the deceased, defendant accidentally stumbled upon a club and was able to pick it up and use it, under the circumstances, with such terrific effect upon the body of the deceased. We are convinced that there was very little justification or excuse for the taking of this old man’s life. The defendant had the advantage of very competent and zealous counsel, and the fact that only a verdict of manslaughter in the first degree, with the minimum punishment, was returned is due in a large measure to the able and untiring efforts of his counsel. Viewing the case from the standpoint taken by the defendant, it is the opinion of this court that he was at least guilty of manslaughter, and, as he received at the hands of the jury the minimum punishment therefor, he is to be' congratulated upon the successful defense interposed in his behalf.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    A. W. LAIL v. STATE.
    No. A-2924.
    Opinion Filed September 14, 1918.
    (174 Pac. 1099.)
    EVIDENCE — Res Gestae. Upon a trial for murder, a spontaneous exclamation made by tbe deceased, without premeditation or design, at tbe time of tbe shooting, and which exclamation tended N to explain the circumstances surrounding the killing, is properly a part of the res gestae, and admissible as such.

      Appeal from District Court, McCurtain County; C. E. Dudley, Judge.

    A. W. Lail was convicted of murder, and appeals.
    Affirmed.

      Giddings & Giddings, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty Gen., for the' State.
   MATSON, J.

The defendant, A. W. Lail, was convicted in the district court of McCurtain county of the crime of murder, and his punishment fixed at imprisonment for life. From this judgment of conviction he has appealed to this court, and but one proposition is relied upon for a reversal of the judgment.

Roscoe Strawn, an eyewitness to the homicide, testified to a certain declaration made by the deceased,' Virgil Strawn, at the time of the difficulty, and made upon his having been shot by the defendant. We quote the follow- . ing from the testimony of the witness, in order to show the circumstances under which, and the time when, said declaration was made:

“Q. What time did you ánd Virgil leave home before the killing? A. We left something like four or five days before Virgil was killed. Q. Where did you go? A. We come to Bismark, he come on to Idabel, and I stayed there and waited for him until he come back, and then we started out home. Q. Where were you? How were you down there? What sort of a conveyance did you have? A. A wagon. Q. Did you have any load? A. We had a load; yes, sir. Q. What was it? A. Feed stuff and probably wire, net wire. Q. What did you — what time' did you pass Lail’s house on your return trip? A. I suppose about 3 o’clock, something like that. Q. Did you see any one around there? A. Yes, sir. Q. Who? A. I saw Lail, and I saw his boys, some of them. Q. Had you passed there going down to Bismark? A. Yes, sir. Q. Did you see any of them there? A. Yes, sir, I saw him (indicating defendant). Q. Where was he? A. I think he was in the house. I believe it was in the house, or yard — I don’t remember now. Q. Where were they, as near as you can tell, and as many of 'them as you can remember, when you returned? A. One of the boys was out in the garden plowing, out in front of the house, as well as I remember, and Lail was down in the field, south of the house, across the road from the house. Q. About how far? A. Why, about a hundred yards, I suppose. Q. About how much was in that field? A. Why, it’s a big field; I don’t know how much there is. .Q. Did you notice what Lail was doing? A. Looked to be cutting bushes. Q. Well, was he still in sight when you went on by? A. He was in sight.when I passed; stayed in sight until I passed his house. Virgil was walking, and he got in the wagon, and when Virgil got in the wagon with me, why, Lail went to the house.- Q. How did he -go to the house? A. He went — you mean what kind- of a movement? A. Yes. A. He went pretty fast. He wasn’t running, but he was moving pretty fast. Q. What did you do after Virgil got into the wagon? A. We drove on up the road about a quarter of a mile west to where Robinson Wade was up by the side of the road building fence, and I had given Virgil a little jacking up—
“By Mr. McLendon: We object to that, your honor.
“By the Court: The objection will be sustained.
“By Mr. Nelson: Q. Go on and tell about what you did. A. I had given Virgil a little jacking up—
“By the Court (to the witness) : Don’t tell that.
“A. We drove up there and stopped and talked to Robinson Wade some. Q. How long did you stay there? A. I don’t know. Not long — 15, 20 minutes; maybe 30. Q. What was Robinson doing? A. Building a fence. Q. What kind of a fence? A. Rail fence. Q. What was he doing to it? A. He was hauling rails on his wagon. Q. New rails or old ones? A. I don’t know. Q. Do you know where he was hauling them from? A. No, sir. Q. Was he loading or unloading his wagon? A. He was putting the rails on the fence, I think, when we called him out to the road. Q. You called him out to the road to talk to him, did you? A. Yes. Q. You say you stayed there about 20 minutes. What did you-do then? A. We drove on down the road about a quarter of a mile further. Q. What happened then? A. Lail killed Virgil; shot him in the back from behind a stump with a 30-30 Winchester. Q. How many shots were fired? A. He fired three-, and I fired two. Q. Did any of his- shots take effect on you? A. None taken effect, only one in my hat band. Q. Where did he hit your hat? A. I had a different hat on than this (indicating witness’ own hat). It’s at home. Shot this hat band off here (indicating), and out of the hat right here (indicating), and shot that hat band loose there (indicating). Q. Shot the bow loos.e? A. Yes, sir; shot the bow loose. Q. Where were you when you fired at Lail? A. I was down on the ground, on the left-hand side of the road, as you go west. Q. Did Virgil say or do anything when he was shot? A. He just hollered and says— (Defendant objects, which said objection is by the court overruled, to which said ruling of the court defendant then and there duly excepted at the time.) A. Virgil says, ‘Don’t shoot me any more, Mr. Lail; you have done killed me.’ That was after he shot me through the hat. Q. Did Virgil get out of the wagon? A. Virgil jumped out of the wagon over me, out on the left-hand side of the wagon. Q. What did you do? A. I got .out.”

Counsel for defendant contends that the declaration of the deceased above quoted, to wit, “Don’t shoot me any more, Mr. Lail; you have done killed me,” to which the above objection was made and exception taken, was im-propérly admitted, because the same is in the nature of a dying declaration, and was admitted without any predicate having been laid for the same.

The declaration was properly admitted as part of the res gestae. It occurred contemporaneously with the shooting and tended to explain the circumstances under which the killing took place. The declaration was the spontaneous exclamation of deceased, was not the result of premeditation or design on his part, and its admission under the circumstances was clearly within the rule established by this court in the following cases: Price v. State, 1 Okla. Cr. 380, 98 Pac. 447; Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561; Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895; Fields v. State, 13 Okla. Cr. 731, 167 Pac. 344. See, also, Wigmore on Ev., sec. 1747. In the notes to said section Prof. Wigmore quotes with approval the reasoning of Barrows, J., in State v. Wagner, 61 Me. 195, as follows:

“We think that the precise ground upon which their admission (evidence of outcries naming an assailant) should be placed in a case like this is substantially the same as that upon which dying declarations are admissible (i. e., necessity and sincerity). * * * No one can doubt that the exclamations of these two women embodied the truth as it appeared to each, and that the cries of alarm and supplication uttered by any and all human beings under similar circumstances would express their perceptions of existing facts as truly as if backed by the sanction of all the oaths known in Christendom. We merely say that whatever force is given to dying declarations, as the utterance of those who on account of their peculiar situation may be relied on to tell the exact truth as it appears to them, must needs be accorded also to the exclamations of mortal terror caused by a deadly assault. * * * To reject the evidence afforded by the agonized entreaties of one standing face to face with death in the person of a murderer with an uplifted weapon, when we would accept the account of the affair afterwards given by the enfeebled victim, with perceptions and recollections darkened and dimmed by the mists and shadows of approaching dissolution, would be, we think, but a bad sample of ‘the perfection of human reason.’ ”

Upon a careful examination of the record we are convinced that the defendant was accorded a fair and impartial trial, and that the evidence complained of was properly admitted.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    ED PERALES v. STATE.
    No. A-2938.
    Opinion Filed September 21, 1918.
    (174 Pac. 1100.)
    1. COURTS — Trial by Justice — Appeal—Amendment of the Complaint. Where criminal complaint filed before a justice of the peace charged only an offense, or offenses, which such justice of the peace had original jurisdiction to try, and the defendant appealed to the district court from a conviction before such justice, where, upon defendant’s motion, certain redundant and duplicitous allegations are stricken from said, complaint, leaving therein charged only the offense for which conviction was had below, the district court was not thereby deprived of jurisdiction to try said alleged offense de novo upon appeal.
    2. SAME. Upon appeal to the district court from a justice of the ' peace court in a criminal case, the trial is de novo on questions of both law and fact; and it was proper on appeal to permit the county attorney to amend the complaint to make the same more specific, where no different offense is charged.
    3. EVIDENCE — Another Offense. Record examined, and held, admission of evidence of offenses other than that charged was erroneous and prejudicial.

      Appeal from District Court, Jackson County; Will Linn, Assigned Judge.

    Ed Perales was convicted of a breach of the peace, and appeals.
    Reversed and remanded.

      M. L. Hankins and S. B. Garrett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst.. Atty. Gen., for the State.
   MATSON, J.

The defendant was tried in the justice of the peace court August 31, 1916, upon a complaint the charging part of which is as follows:

“That Ed Perales, on or about the 14th day of August, 1916, in the county of Jackson and State of Oklahoma, did then and there willfully and unlawfully disturb the peace and quiet of Mrs. L. E. Merritt, Mrs. D. Tant, Blanche Tant, Lillie Korengay, and Clura Merritt, and the family of Mrs. L. E. Merritt, in the manner and form'as follows, to wit, that is to say: The said Ed Perales did then and there willfully and unlawfully make use of profane, obscene, abusive, insulting, and vulgar language in the presence and hearing of the said Mrs. L. E. Merritt, Mrs. D. Tant, Blanche Tant, Lillie, Kornegay, and Clura Merritt, said language being then and there addressed to the said Blanche Tant, Lillie Kornegay, and Clura Merritt, which language in its common acceptation was calculated to arouse to anger the said persons so addressed and cause a breach of the peace or an assault; and the said Ed Perales did then and there willfully and unlawfully nudge and shove the said Blanche Tant in the side, and did then and there smack his lips at and attempt to kiss the said Lillie Korne-gay, Blanche Tant, and Clura Merritt, and did then and there willfully, and unlawfully attempt to throw and place his legs over the leg of the said Lillie Kornegay, and did then and there willfully and unlawfully attempt to place his feet in the lap of the said Lillie Kornegay, all in the presence*and hearing of the said Mrs. L. E.- Merritt, Mrs. D. Tant, Lillie Kornegay, Blanche Tant, and Clura Merritt, contrary to the statutes in such cases made and provided,” etc.

In the district court the defendant filed motion to strike out certain parts of the foregoing complaint. Upon hearing the said motion to strike, the district court made , its order striking from said complaint the following:

“And did then and there willfully and unlawfully nudge and shove the said Blanche Tant in the side, and did then and there willfully and unlawfully smack his lips at and attempt to kiss the said Blanche Tant and the said Lillie Kornegay and the said Clura Merritt, and did then and there willfully and unlawfully attempt to throw his leg over the leg of the said Lillie Kornegay, and did then and there willfully and unlawfully attempt to place his feet in the lap of the said Lillie Komegay.”

Thereupon the county attorney obtained leave of the court, over the objections and exceptions of the defendant, to file, and was permitted to file, an amended complaint. The amended complaint filed by the county attorney in the district court, in the charging part, is as follows:

“I, D. Tant, complaining of Ed Perales, of Jackson county,- Oklahoma, then and there being, do solemnly swear that heretofore, to wit, on or about the 14th day of August, 1916, in the county qf Jackson and the State of Oklahoma, the said Ed Perales did then and there willfully and unlawfully make use of profane, violent, abusive, and insulting language toward and about one Blanche Tant, and in the presence and hearing of the said Blanche Tant; said language so as aforesaid used by the said Ed Perales toward and about the said Blanche Tant, and in the presence and hearing of the said Blanche Tant, being as follows, to wit: ‘Don’t you want a piece of my ass,’ and 'Won’t you have a piece of my ass,’ and ‘Won’t you have it,’ which said language in its common acceptation was calculated to arouse to anger the person so addressed, and to cause a breach of the peace and assault, contrary to the form of the statutes,” etc.

Which was properly sworn to by D. Tant. To the above amended complaint, defendant filed motion to quash or strike the said complaint filed in the district court for the following reasons:

“First, because the court has no jurisdiction of the defendant, and likewise has no jurisdiction over the subject-matter stated in the complaint filed herein; second, because it does not purport to be an amendment of any case filed in the justice of the peace court, but shows to be a new case, charging an entirely different offense from any tried in the court below, charging that the defendant did different acts, in the hearing and presence of different persons, and that different persons were affected thereby, to those charged in the case tried in the justice of the peace court.”

Which motion to strike was by the court overruled and exceptions saved by the defendant. Also to the said amended complaint filed in the district court the defendant filed his demurrer, among other things alleging:

“First. Because the court has no jurisdiction of the defendant, nor the subject-matter stated in the complaint. Second. * * * Third. Because said case is filed in the wrong court.”

Which demurrer, to said complaint was by the court overruled, and proper exceptions allowed the defendant. Whereupon the case proceeded to trial, and the state introduced the witness Blanche Tant, and the defendant made the following objection to the introduction of any evidence:

“At this time the defendant objects to the introduction of any evidence in this case by the state, because this court is without jurisdiction, this being an appeal from the justice of the peace court, where the defendant was charged with disturbing the peace by the commission of several different assaults upon several different persons, naming them, and the amended complaint filed herein does not charge any of the acts of assault charged in the complaint in the justice court, but charges a new and different act, viz., that the defendant used certain obscene words to one Blanche Tant, alleging the exact words, which constitute a different act entirely from the act as charged in the justice court.”

Which objection was by the court overruled, and exception allowed.

It is the contention of the defendant that the district court had no jurisdiction of this case, because it is con•tended that, if the justice of the peace had no jurisdiction, then the district court acquired none upon the attempted .appeal; and in this connection it is further contended that ■the complaint filed before the justice of the peace is based upon section 2793, Rev. Laws 1910, which is as follows:

“Any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the públic peace or “health, or which openly outrages public decency and is injurious to public morals, although ho punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor”

—and that the jurisdiction of a justice of the peace to try misdemeanor cases is limited to a punishment not to exceed a fine of $200 or imprisonment in the county jail for 30 •days, or by both such fine and imprisonment (section €139, Rev. Laws 1910), while the punishment prescribed for a violation of section 2793, supra, is greater than that for offenses over which a justice of the peace has jurisdiction.

There would be merit in this contention had the complaint originally filed before the justice of the peace stated an offense under section 2793, supra, as contended for by counsel for defendant. This court, however, cannot concur in such contention. It was clearly the intention of the pleader in the complaint originally filed before the justice of the peace to charge the defendant with the-offense •defined in chapter 58, Session Laws 1911, the first and sec•ond sections of which are as follows:

“Section 1. If any person shall willfully or maliciously disturb, either by day or night, the peace and quiet of any city of the first class, town, village, neighborhood •or family by loud or unusual noise, or by abusive, violent, obscene or profane language, whether addreásed to the party so disturbed or some other person, or by threatening to fight, quarreling or challenging to fight, or fighting, or shooting off any firearms, or brandishing the same, or by running any horse at unusual speed along, any street, alley, highway or public road, he shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in any sum not to exceed $100.00, or by imprisonment, in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court, or jury trying the same.
“Sec. 2. If any person shall make use of any profane, violent, abusive or insulting language toward or about another person, in the presence or hearing, which language, in its common acceptation, is calculated to arouse-to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, every such person shall be deemed guilty of a breach of' the peace, and, upon conviction thereof, shall be punished by a fine in any sum not to exceed $100.00, or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court or jury trying the same.”

The matter stricken out of the original complaint, upon motion of the defendant in the district court merely charged certain assaults upon Blanche Tant, Lillie Kornegay, and Clura Merritt, and, had these offenses been separately pleaded, they were offenses over which the justice-of the peace had original jurisdiction, as the punishment, prescribed for such offenses (section 2343, Rev. Laws 1910) is by imprisonment in a county jail not exceeding 30 days, or by a fine not less than $5 nor more than $100, or both. It is the opinion of the court, therefore, that the complaint filed before the justice of the peace did' not charge an offense under section 2793, supra, as contended, but that it was subject to demurrer as being duplicitous, in that it charged more than one offense, in the same paragraph of complaint, over each of which the justice of the peace had jurisdiction, and the action of the district court in striking the surplus, allegations in no way-deprived the court of jurisdiction to try and determine the offense as stated in the original complaint.

It was also proper for the district court to permit the county attorney to amend such complaint. Sandlin v. State, 3 Okla. Cr. 578, 107 Pac. 946.

Over objection and exception by defendant, the trial court permitted the witnesses Lillie Kornegay and- Clura Merritt to testify that Blanche Tant, immediately upon the use of the alleged insulting language by the defendant, turned to them and told them that he had used the exact language set out in the amended complaint, repeating the words employed by defendant. The action of the court in this respect is allege'd to be erroneous and prejudicial. The conclusion is reached, however, that such evidence is clearly a part of the res gestae, as it tends to explain the nature of defendant’s conduct and was a voluntary declaration by the prosecuting witness contemporaneous with the main act sought to be proven. Lail v. State, ante, p. 596, 174 Pac. 1099, decided September 14, 1918, and authorities there cited.

The court also permitted, over objection and exception by the defendant, the witnesses Blanche Tant,. Lillie Kome-gay, and Clura Merritt to testify on behalf of the state to certain alleged assaults committed by the defendant on Lillie Kornegay and Clura Merritt some five or ten minutes subsequent to the alleged breach of peace charged in the amended complaint. Counsel strenuously contend that the admission of such evidence was erroneous and clearly prejudicial in this case. In this conclusion we agree.

The evidence of the separate assaults alleged to have; been made by the defendant upon Lillie Kornegay and. Clura Merritt, occurring some five or ten minutes subsequent to this alleged offense, was evidence of separate and distinct crimes of an entirely different character, which did not tend to establish or directly prove the guilt of the-accused of the offense charged, nor were they so related to-said act or interwoven therewith that the proof of one: could not be made without proof of the other, nor did. this evidence come within any of the well-known exceptions, to the general rule excluding evidence of other offenses. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689; Baldwin v. State, 11 Okla. Cr. 228, 144 Pac. 634; Appleby v. State, 11 Okla. Cr. 284, 146 Pac. 228; Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383. It is the opinion of the court, therefore, that, the evidence of these separate and distinct offenses was. improperly admitted, and that its admission was prejudicial to the defendant, as this is a closely contested case; on the facts.

While this is a conviction for a misdemeanor, with, the punishment fixed at a fine of $50 only, the defendant: is entitled to be convicted upon competent and legal evidence, and to permit said witnesses to testify that defendant was guilty of other separate and distinct offenses, independent of and not related to the one charged, nor so-interwoven with it as to explain it and thereby tending to» establish his guilt of that offense, was erroneous ancL prejudicial.

Other errors assigned are either withoút merit Or are such as are not likely to arise upon a retrial of the. case.

Judgment reversed, and cause remanded for further proceedings in accordance herewith.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    JAMES BROWN v. STATE.
    No. A-3165.
    Opinion Filed September 21, 1918.
    (174 Pac. 1102.)
    1. JURY — Selection of Jury Lists. A substantial compliance with the act providing for the selection of a list of petit jurors is sufficient to prevent the setting aside of a verdict returned in a criminal case.
    2. SAME — Right to Jury Trial. Where the record shows that one of the persons selected by the jury commissioners from the tax rolls of the county for service in the district court was a minor at the time of his selection in January, 1917, hut re'ched the age of 21 years and became a qualified elector of the county before the time he was impaneled and sworn to try the cause, held, that the mere fact that at the time of his selection he was not qualified for jury service did not operate to deprive the defendant of a fair and impartial jury to try said cause, or deny to him the right of trial by jury, as guaranteed by section 19, part 2, Constitution.
    3. SAME. Statutes providing for the selection of electors for jury service have never been regarded as an essential element of the right of trial by jury, and the- method of selection is entirely within the control of the Legislature, provided the fundamental requisite of impartiality is not violated.
    4. SAME — Competency of Individual Juror. The question of competency of an individual juror to try the issue in a criminal cause relates to the time said juror is impaneled and sworn to try said cause.
    5. TRIALr-‘-Qualifications of Jury — Time for Making Objections. The provision in section 3690, Rev. Laws 1910. that “no name of a person who does not possess the qualifications of an elector” shall be placed upon the jury list by the jury commissioners, is directory, and aimed to reduce to a minimum the likelihood of having served and summoned for jury service persons not qualified under the law. Where, by reason of inadvertence or mistake, the name of a person who is a taxpayer, but a minor, is selected and placed upon the jury list, the defendant may not raise the question that said juror was not lawfully selected for the first time after verdict has been rendered. Had said juror been a minor at the timp the jury was impaneled and sworn to try the cause, a challenge for 'cause upon the grounds stated in the second subdivision of section 5857, Rev. Laws 1910, should have been interposed as to him: otherwise, there is a lack of diligence to discover the disqualification.

      Appeal from District Court, Muskogee County; R. P. de Graffenried, Judge.

    James Brown, alias Jerry Moore, was convicted of murder, and sentenced to suffer death, and appeals.
    Judgment affirmed.
    The defendant, James Brown, alias Jerry 'Moore, was convicted in the district court of Muskogee county, Okla., of the crime of murder, and sentenced to suffer death, for killing one Glenn Jacobs in said county on the 19th day of May, 1917. The facts .are substantially as follows:
    About 7:30 or 8:00 o'clock on said day the deceased, Jacobs, together with his father-in-law, G. W. Turnball, left Muskogee, driving southeast in a two-horse wagon. They were going fishing, and after they had proceeded about three or four miles, and after it was dark, they were met in the road by two negro men, who presented pistols at them and demanded that they stop and hold up their hands. This demand was immediately complied with, and one of the negro men then commenced to search the wagon and the pockets of both Jacobs and Turnball, securing some money and other things of value. About the time Jacobs thought they were through with the search, he started to put his hands down, and according to the testimony of Turnball the defendant, who was then holding a pistol against the body of Jacobs, fired the same, inflicting a mortal wound, as the result of which said Jacobs died within a very short time. . It is also shown that these two negroes held up and robbed, immediately preceding and in the same locality where this killing took place, some three or four other persons by like means and methods.
    The defendant took the witness stand in his own behalf and admitted the robbery, but contended that his companion in crime, Sam Shaw, fired the shot that killed Jacobs. Immediately after the killing the defendant and Shaw escaped and “were on the scout” for about ten days; the defendant being captured at Ft. Gibson, Okla. The evidence in the case on the part of the state clearly establishes a willful and deliberate murder perpetrated in the commission of a robbery, and the defendant’s own testimony amounts virtually to a plea of guilty. . /

      Kelly Brown, for plaintiff 'in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

But one alleged error is relied upon for a reversal of this judgment. It is contended:

“That the jury that tried the defendant was improperly selected, drawn, and impaneled, for the reason that the name of the juror A. E. Cole was placed on the list or panel from which the jury in this case was drawn, and said juror was selected and qualified as one of the 12 men that rendered the verdict herein; the said A. E. Cole not being a qualified elector at the time his name was placed on the jury list.” - •

No challenge was interposed to the panel on this ground, nor to the individual juror for cause. The alleged error, was first raised in the motion for new trial, wherein it is stated that the said jury was improperly drawn, selected, and placed on the jury list, and that said fact was unknown to the defendant and to his counsel until after the verdict was rendered. In support of the motion for new trial the defendant introduced as witnesses J. B. Cole, father of A. E. Cole, and also A. E. Cole, the juror, and said witnesses were examined in open court and testified as follows:

“By Mr. Brown: Q. State your name. A. J. B. Cole. Q. Is A. E. Cole your son? • A. Yes, sir. Q. Where do you live? A. P'orum, Okla.. Q. Does your son live in Porum?. A. No, sir; out in the country near by. Q. Porum is the post office? A. Yes, sir. Q. How long has Mr. A. E. Cole been living separate and apart from you? A. For three years. Q. You stated he was your son? A. Yes, sir. Q. Do you know his age? A. Yes, sir. Q. How old is A. E. Cole at this time? A. Twenty-one years old past. Q. When did he arrive at the age of 21? A. The 1st day of July. Q. This year? A. Yes, .sir. Q. First day of July, 1917, was 21 years of age? A. Yes, sir. Q. That is his correct age? A. Yes, sir. Q. Do you know by your being his father? A. Yes, sir. Q. And that is his age? A. Yes, sir.
“By Mr. Cotton: Q. You also have the original entry made by you in the Bible? A. Yes, sir. Q. I will ask you if this is it? A. Yes, sir; this is it right here. Q. ‘Albert Early Cole, July 1st, 1896?’ A. Yes, sir. Q. This is the entry made in your Bible? A. Yes, sir. Q. By whom was it made ? A. By myself. Q. At the time or shortly after his birth? A. I do not remember the exact date, but shortly afterwards.
“Mr. Brown: It is agreed by the county attorney,,in behalf of the state, and by the attorney for this defendant, that the juror A. E. Cole was 21 years of age on the 1st day of July, 1917, and was not 21 years of age at any time previous to that. .(Witness dismissed.) .
“Whereupon A. E. Cole was duly sworn according to law and testified as follows-,-to wit:
“Direct Examination of A. E. Cole.
“By Mr. Kelly Brown: Q. State your name. A. A. E. Cole. Q. Are you the same A. E. Cole who served on the jury in the case of State of Oklahoma v. James Brown, alias Jerry Moore? A. Yes, sir. Q. That was on July 2 and 3, 1917? A. Yes, sir. Q. At that time how old were you? A. I was 21 years old. Q. Twenty-one the 1st day of July previous? A. Twenty-one the 1st of July. Q. The trial commenced on Monday morning? A. Yes, sir. Q. The jury panel- of which you were a member' were all examined by the court before you were called to the jury box? A. I never understood. Q. All the members of the jury list or panel in the court room were asked questions about your competency before you were called into the box? A. I was asked no questions.
“Judge de Graffenried: Didn’t I ask all the jurors,. ‘Gentlemen of the jury, are you all qualified voters in Muskogee county?’ A. Yes, sir. Q. And to that question what did you answer? A. I answered ‘yes.’
“Judge de Graffenried: Mr. Cole, you are a taxpayer in this county? A. Yes, sir.
“Judge de Graffenried: On the tax. rolls? A. Yes, ■sir. (Witness dismissed.) ■
“Mr. Brown: I' would like for the record to show counsel for the defendant is permitted to substitute the evidence taken in lieu of the affidavit attached to his motion.
“Judge de Graffenried: The substitution is made by the court. Is that all?
“Mr. Brown: Yesa sir. -
“Mr. Cotton: Tiles, sir.
“The above and foreging is all the evidence introduced on the hearing of the supplemental motion for new trial, and the same is a full, true, correct, and complete transcript of all the proceedings had on the supplemental motion for new trial.”

The record discloses that the said A. E. Cole became 21 years of age on July 1, 1917, the day before this case was called for trial; that he was a qualified elector in Muskogee county at the time he was impaneled as a juror in this case; but counsel for defendant contend that defendant was not accorded the right of trial by jury by 12 qualified men, because under the laws of this state a juror must be a qualified elector at the time his name is placed upon the jury list by the jury commissioners, and that, the list from which Cole’s name was selected having been prepared in January, 1917, the said Cole was not at that time qualified for jury service.

Section 3690, Rev. Laws 1910, in substance provides that the jury commissioners shall meet in the office of the county clerk on the first Monday in January and July of each year, and at such other time as the district judge may order, and shall proceed to select for the district court one list of names of not less than 200 persons from the names on the tax rolls of the county, and that no name of any person who does not possess the qualifications of a juror as prescribed by this chapter shall be placed on the jury list.

Section 3698, Id., provides:

“All male citizens, residing in this state, having the qualifications of electors, of sound mind and discretion, of good moral character, not justices of the Supreme Court or judges of the Criminal Court of Appeals, district court, superior court or county court, sheriffs or deputy sheriffs, constables, jailers, licensed attorneys engaged in the practice of law, habitual drunkards, not afflicted with a bodily infirmity amounting to a disability, and who have never been convicted of any infamous crime or served a term of imprisonment in any penitentiary for the commission of a felony, are competent jurors to serve on all grand and petit juries within their counties: Provided, that persons over sixty years of age, ministers of the gospel, and county or district officials,' practicing physicians, undertakers, pharmacists, teachers in public schools, postmasters, and carriers of the United States mail, members of the National Guard, and all members of good standing of any regularly organized fire department, if they claim their exemption shall not be compelled to serve as jurors in this state.”

Section 1, art. 3, of the Constitution, provides the qualification of electors as follows:

“The qualified electors of the state shall be male citizens of the U,nited States, male citizens of the state, and male persons of Indian descent native of the United States, who are over the age óf twenty-one years who have resided in the state one year, in the county six months, and in the election precinct thirty days next preceding the election at which any such elector offers to.vote: Provided, that no person adjudged guilty of a felony after the adoption of this Constitution, subject to such exceptions as the Legislature may prescribe, unless his citizenship shall have been restored in the manner provided by law; nor any person, while kept in a poorhouse or other asylum at the public expense, except Federal and Confederate ex-soldiers; nor any person in a public prison, nor any idiot or lunatic, shall be entitled to vote at any election under the laws of this state.”

Section 3701, Rev. Laws 1910, provides as follows:

“A substantial compliance with the provisions of this , chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen thereunder, unless the irregularity in drawing and summoning or empaneling the same resulted in depriving a party litigant- of some substantial right: Provided, however, that such irregularity must be specifically presented to- the court at or before the' time the jury is sworn to try the cause.”

On behalf of the defendant it is contended that the provisions of the statute relative to the drawing, selecting, and impaneling of a petit jury are mandatory, and that the mere fact that the juror A. E. Cole was placed upon the jury list for the district court at a time when he was under the age of 21 years operated to deprive the defendant of the right of trial by jury as guaranteed by section 19, art. 2, state Constitution, in that he was deprived of a jury of 12 qualified men under the law, and this fact was unknown to him until after the verdict was rendered. The position taken that the jury in this case was improperly drawn and selected is not supported by the evidence adduced in support of ,the motion for new trial. It clearly appears from the testimony' of the juror A. E. Cole that in January, 1917, his name appeared on the tax rolls of Muskogee county, and that he was at that time a taxpayer in Muskogee county. There is no contention or proof that the jury commissioners drew the name of A.' E. Cole from any list other than that provided by law for the selection of jurors, namely, the tax rolls of the county. The fact, therefore, that the name of this juror by inadvertence or 'mistake was placed upon the jury list was a mere irregularity in selecting the list,- of which irregularity the statute has provided a remedy.in section 5857, Rev. Laws 1910, designating general, causes for challenge to individual jurors, the second subdivision of which provides:

“A want of any of the qualifications prescribed by law to render a person a competent juror, including a want „ of knowledge of the English language as used in the courts.”

It was with knowledge of all these safeguards before them that the Legislature provided in section 8701, supra, that any irregularity in the drawing, summoning, and impaneling of a trial jury must be specifically presented to the court at or before the time the jury is sworn to try the case; and in the case of Moore v. State, 4 Okla. Cr. 213, 111 Pac. 822, where it was contended that the jury impaneled to try the cause was not lawfully drawn, this court said:

“The defendant could not raise this question for the first time after the verdict had been rendered.”

And also in the case of John Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947, wherein the defendant was convicted of murder, with the death penalty, it was held that:

“A substantial compliance with the act providing for the selection of grand jurors is sufficient to prevent the setting aside of the indictment on motion to quash” —it being further held that a grand juror drawn from the list of jurors for the county court, instead of from the list of jurors for the district court, as required by law, was a substantial compliance with the act.

In this case there is really no showing at all of irregularity or misconduct on the part of the jury commissioners in selecting the jury list from which the name of this juror was drawn. It also appears from the record that the juror A. E. Cole, at the time he was impaneled and sworn to try this case, was a qualified elector and taxpayer of Muskogee county. Wherein, then, was this defendant deprived of any substantial right by reason of the fact that said A. E. Cole sat upon the jury that tried his case? Did the mere irregularity of placing the name of a minor on the list some six months before the trial deprive him of that right? Certainly not. The fact that a want of any qualifications prescribed by law is made a ground of general challenge to the individual juror impresses this court with the fact that the question of the qualifications of the individual members of the jury is to be determined from the moment the jury is impaneled to try the cause. It is then that inquiry is had and the competency of each juror for trial, service adjudicated.

The question of competency to try the issue cannot relate back to the time the jury commissioners select the names from the tax rolls. Otherwise one rule would obtain as to talesmen, and another and different rule as to jurors selected from the regular list. Such is apparently • not the law. The provision that in selecting the list of jurors “no name of a person who does not possess the qualifications of an elector” shall be placed thereon, is a directory provision of the statute, aimed to reduce to a minimum the likelihood of having served and summoned for jury service persons not qualified under, the law. No perfect system of selecting a list of jurors has ever been, or ever will be, evolved by human ingenuity.

However numerous the safeguards and precautionary provisions of such statutes, mistakes are likely to occur; hence the courts have almost universally construed such statutes as directory merely, and not mandatory (16 R. C. L. sec. 48; Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Hopkins v. State, supra), and that a substantial compliance with the terms of such statutes will prevent the quashing of an indictment by a grand jury or setting aside of a verdict by a petit jury in a criminal case (Wadsworth v. State, supra; Hopkins v. State, supra). And, further, the general rule is to the effect that statutes providing for the selection of electors for jury service have never been regarded as an essential element of the right of trial by jury, and the method of selection is entirely within the control of the Legislature, provided only that the fundamental requisite of impartiality is not violated. 16 R. C. L. 51, and cases cited.

In this case the defendant was not deprived of a jury of 12 impartial and qualified electors, either by any action of the jury commissioners in selecting the list of jurors or by the fact that the juror A. E. Cole was impaneled for service at the trial. We consider the alleged assignment of error without merit.

The judgment of conviction, assessing the death penalty, is affirmed, and the warden of the state penitentiary at McAlester is hereby ordered and directed to carry into effect against this defendant the judgment and sentence of the district court of Muskogee county that he suffer death. Said penalty to be executed on the 8th day of November, 1918, in the manner provided by the laws of this state.

DOYLE, P. J., and ARMSTRONG, J., concur.