text:
    JESSE KNIGHT v. STATE.
    No. A-2890
    Opinion Filed Aug. 8, 1919.
    (182 Pac. 734.)
    1. HOMICIDE — Murder in First Degree — Evidence. Evidence of previous malice and premeditation not necessary to sustain a conviction of manslaughter in the first degree, where a homicide is. committed in the heat of passion with a deadly weapon, per sé.'
    2 EVIDENCE — Documentary Evidence — Illegal Search. Documentary evidence secured by illegal search of the room of another is not thereby rendered inadmissible as violative of the Constitution of this state.
    8 HOMICIDE — Expressed Malice — Restoration of Friendly Relations. Where there is evidence of previously expressed malice, and that friendly relations are thereafter apparently restored : upon the trial of a defendant for the murder of the person against whom the malice was expressed, it is a question of fact, under proper instructions, for the jury as to whether or not the restoration of friendly relations between the parties at the time of the homicide was in good faith on the part of the slayer.
    4, HOMICIDE — Expressed Malice — Evidence—Harmless Error. In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence should be incompetent and prejudicial, becomes harmless, when a verdict of manslaughter is returned by the jury.
    5. HOMICIDE — Instructions. The instructions given and the requested instructions refused carefully considered, and found free from error.

      Appeal from District Court, Oklahoma County; . Geo. W. Clark, Judge.

    Jesse Knight was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Ben F. Williams and Pruiett, Day & Sniggs, for plaintiff in error.

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

The plaintiff in error, Jesse Knight, hereinafter called defendant, was informed against jointly with his brother for the murder of George E. Long, a severance was granted, and the defendant tried and convicted of manslaughter in the first degree, and sentenced to imprisonment at McAlester for a term of 20 years. To reverse the judgment rendered, he prosecutes this appeal.

The defendant in his brief does not abstract the evidence as required by the rules of this court, and does not seriously contend that the evidence is insufficient to sustain the conviction of manslaughter in the first degree, had in this case. We therefore feel it is unnecessary, to recite the voluminous evidence in this case, except in so far as it may be necessary to an intelligent consideration of the fundamental errors alleged to have intervened in the trial of the case. The said evidence is that the defendant, Jesse Knight, and John Knight wére brothers, and that a very commendable brotherly affection existed between them, especially on the part of the defendant to John; that the defendant resided in Texas and John in this state; that the deceased was fire chief of the S. & S. Company,- located at Packingtown, Okla., and had authority to employ all help needed in the fire department of said company, and that John Knight was employed by him in the said fire department, and that while so employed he contracted syphilis and was discharged, and at the time of being discharged he was abused and kicked by the deceased, and bad blood thereby engendered ; that of this and of his physical condition, John fully advised the defendant by letter, and informed him that his having contracted syphilis was due to the evil advice of the deceased; that subsequently John’s physical condition improved, and the unfriendly relations, between him and the deceased were adjusted, and John was again employed by the deceased in his former position; that it was while the unkindly feelings existed between them that the letters put in evidence, to which the defendant duly excepted, were written by the defendant to' John, which said letters expressed great malice toward the deceased, and a determination on the part of the defendant to avenge the wrongs done John by the deceased, saying “that he (defendant) still had his automatic oiled and in good shape.” The defendant visited his brother in Pack-ingtown, where for a short time- he was employed, and returned to Texas. Subsequently he returned to Packing-town, and some months thereafter he and John visited itheir parents in Tennessee, where they remained about 60 days, and then returned -to Packingtown, and John found that his former place in the fire department, in which /he desired re-employment, had been filled by another, and John frequently asked others connected with the deceased as to whether or not the deceased intended to employ him again, and as to what he intended to do about it; that on the night of the homicide the defendant and his brother visited the fire hall of the S. & S. Company, in which hall ■the deceased had his bed, and on which he was then lying partly undressed, with his shoes off; that the defendant and his brother John engaged with others in a game of cards; that while they were so engaged the deceased got up, and in his stocking feet went into the toilet which adjoined said fire hall, and John, having gotten.another to take his place in the card game, imimediately followed the deceased into said toilet; that in about a minute the deceased called “Tom,” who was an employe of said fire department, and who was also engaged in the said game of cards, several times, and immediately thereafter the deceased and John returned to the fire hall, and John had hold of deceased and was striking at him; that the deceased was severely cut about the face, and bleeding very profusely, and apparently in a very weak condition; that the deceased seized a fire nozzle and held it in a position to strike, and the deceased was then seized and pulled back by the defendant, who immediately drew his pistol and shot the deceased through the head, and deceased fell and immediately expired; that the defendant immediately said, in explanation as to why he shot the deceased, “that the deceased was trying to knock his head off with the nozzle, that he could not stand for that, that he could not stand for a thing like that,” and shortly thereafter left the fire hall, went to Texas, and thence to- his parents’ home in Tennessee, returned to Oklahoma, and surrendered.

The defendant testified -that he'killed the deceased in order to protect his brother from being killed or receiving great bodily harm; that at the time he shot the deceased he entertained no unkindly feelings toward him, and that when he wrote the said letters to his brother, which were in evidence, he was mad and worried, and did not intend to advise his brother to kill the deceased, nor did he intend to threaten the deceased; that his object in writing his brother said letters was to cause him to be careful and to keep him out of trouble; and that at the time said letters were written he had never seen and did not know the deceased.

The defendant excepted to the giving of paragraph 15 of the instructions given the jury, which paragraph reads:

“Threats made by the defendant, if any, and all declarations of personal hostility of the defendant, if any, against the deceased, are proper for your consideration, to determine the question of malice or criminal intent of the defendant, if any, at time of the fatal difficulty; but if you find from the facts and circumstances in evidence in the case that the defendant and deceased, after any such threats or declarations of hostility, ’ if any, made up good friends, and each forgave the other, all past differences and animosities, and no new threats or hostilities could be considered, by the jury as evidence of malice; but if the jury believes from the evidence beyond a reasonable doubt that the defendant had not. in good faith forgiven deceased, and made up good friends, prior to the fatal difficulty, then the jury has the right to consider the past threats or expressions of hostility of the defendant, if any there were, for the purpose, with the other evidence in the cause, of determining the question of malice.”

The defendant complains of the action of the court in refusing to give requested instruction No.-, which said refusal was excepted to. The instruction is as follows:

“■What is or is not an overt action — that is, what act upon the part of the person slain will justify the person taking his life — varies with the circumstances of each particular case. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, under other circumstances that might not 'be true, and it is for the jury, viewing the facts and circumstances in evidence from the defendant’s standpoint, to determine how this may be in each case.”

A motion for a new trial was filed and overruled, and exceptions saved.

The most insistent contention of the defendant is that the court committed fundamental error in admitting in evidence the letters written by the defendant to his brother John, prior to the homicide, and with this contention we are not in accord.

The offense of which the defendant was convicted, manslaughter in the first degree, is defined by subsection 2 of section 2320, Rev. Laws 1910, as follows:

“When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide.”

Hence, where the killing is done, as in the instant case, “in a heat of passion by means of a deadly weapon,” it is not necessary to show previous malice and premeditation to sustain a conviction of manslaughter in the first degree, and as the only office of the letters of the defendant to his brother was to show expressed malice toward the deceased and premeditation to' kill him, if it was error to admit such letters in evidence, which we do not hold, such error was not such as to entitle the defendant to a reversal in this case. Section 6005, Rev. Laws 1910.

We do not think that the letters put the character of the defendant in issue, nor that the fact that the letters were obtained by unlawful search of John’s trunk, in violation of provisions of the Constitution of this state, rendered said letters inadmissible in evidence.

We think requested instruction No.-was properly refused, as the phase of the case therein stated was fully covered by general instructions of the court, in which the court fairly presented both sides of the case, and that Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112, cited by defendant, does not support his claim of fundamental error in refusing to give said requested instruction. In Green v. United States, supra, it is shown that the trial judge “did not correctly and sufficiently cover the said phase of the case,” the condition in which the defendant might act in defense of himself or of his brother, while in the instant case the court by its instruction did “correctly and sufficiently cover said phase of the case.” The motion for a new trial was properly overruled.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    JOHN KNIGHT v. STATE.
    No. A-2989
    Opinion Filed Aug. 8, 1919.
    (182 Pac. 736.)
    1 EVIDENCE — Documentary Evidence — Letters Between Codefend-ants. When two persons are jointly charged with' murder and separately tried, letters written by one of them to the .other, expressing malice towards and a premeditated design to kill the person slain, are admissible in evidence against either one of the said defendants, if there he any evidence tending to show collusion between them to cause the death of the person with whose death they are charged.
    2. SAME — Illegal Search] — Effect. Letters obtained by an illegal search are not thereby rendered inadmissible in .evidence, because the search by which the letters were obtained was violative of section 30 of the Bill of Bights of the Constitution of this state; the true rule being that the admissibility of evidence, other than confessions, is not affected by illegality by which the same is obtained.
    3. • HOMICIDE — Admission of Evidence — Harmless Error. In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence be incompetent and prejudicial, becomes harmless when a verdict of manslaughter is returned by the jury.

      Appeal from District Court, Oklahoma County; John W. Hay son, Judge.

    John "Knight was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    ; . 'Ben F. Williams, Jem P. Day, and Pruiett, Sniggs & Patterson, for plaintiff in error. '

      S. P. Freeling, Attjn Gen.’, " and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, John Knight, hereinafter called defendant, was, with his brother, Jesse Knight, informed against jointly for the murder of George E. Long, a severance- granted, the defendant tried separately, and convicted of manslaughter in the -first degree, and sentenced to imprisonment in the penitentiary at Mc-Alester for a term of 15 years. To reverse the judgment rendered, he prosecutes this appeal.

This is a companion case to that of Jesse Knight v. State (No. 2890) ante, p. 291, 182 Pac. 734, recently affirmed 'by this court.

The defendant in his brief has not, as required by the rules of this court, abstracted the evidence, and does not argue in his brief that the evidence is insufficient to support the judgment rendered, but rests a reversal of this case upon the alleged fundamental error of the court in admitting in evidence letters written the defendant by Jesse Knight, his brother. Therefore we do not think it necessary to recite the evidence, believing it sufficient for an intelligent review of the question involved to . say that it shows that prior to being shot by the defendant’s code-fendant, and in -the toilet which adjoined the fire hall in which deceased was shot, the deceased was severely wounded by the defendant with a knife, and immediately thereafter the deceased, accompanied by the defendant, came into said fire hall, where the defendant’s codefendant was, and very shortly thereafter was shot by said codefendant, fell down, and immediately expired; that the letters in evidence were written after the writer, who at the time resided in Texas, had been informed by letters to him from the defendant that he (defendant) had been induced by the deceased to visit a house of prostitution in Oklahoma City and had there contracted syphilis; that at that time he was employed by the deceased, who was fire chief of the S. & S. Company, located at Packingtown; that after defendant had contracted said disease the deceased, who had authority to discharge employes of the said fire department, cursed and abused the defendant, kicked him, and discharged him from his said employment; that the said letters expressed a strong brotherly attachment on the part of the writer for the defendant, and that he was very much outraged at the treatment that had been accorded his brother by the deceased, expressed malice against and a premeditated design to kill deceased, and advised the defendant to kill the deceased if he could do so with impunity, and that in order to look after his brother the said writer of the said letters came to Packingtown, and after being discharged, upon having improved' as to his affliction, the ill feeling of the defendant towards the deceased was removed; that they apparently became friends, and the defendant was again employed in the said fire department by the deceased; that defendant left said second employment, and with his said brother visited their parents in Tennessee, remained there about 60 days, and then returned together to Packingtown, and that the defendant desired to be again employed in the said fire department, but that he did not so succeed-; that the said defendant and his brother constantly associated closely together, and on the night of the homicide came together to the said fire hall, the said codefendant being at that time armed with a pistol.

The defendant moved for a new trial, which was overruled, and exceptions saved.

The only material contention insisted upon by the defendant in his brief is that the said letters were inadmissible in evidence against him, and unquestionably so because they were obtained by a violation of section 30 of the Bill of Rights of the Constitution of this state, which reads as ■ follows: .<

“The right of the people to be secure in their person, houses, papers and effects, against unreasonable searchers and seizures shall not be violated; and no Warrant shall issue, but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

With said contention we cannot agree, as this court has several times held adversely thereto. In Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199, it is held:

“Evidence obtained by means of a search warrant is not inadmissible, either upon the ground that it is in the nature of admissions under duress, or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued.”

In said case Judge Doyle announces the accepted. rule to be:

“That the admissibility of evidence is not affected by the illegality of the means through which the witnesses were enabled to obtain the evidence.”

The said rule announced by Judge Doyle finds support and approval in the following cases, viz.: Ripper v. U. S., 178 Fed. 24, 101 C. C. A. 152; Dum Yan v. U. S., 193 Fed. 970, 115 C. C. A. 122; Martin v. State, 1 Ala. App. 215, 56 South. 3; People v. Warren, 12 Cal. App. 730, 108 Pac. 725; Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096; Minor v. Atlanta, 7 Ga. App. 817, 68 S. E. 314; Young v. State, 12 Ga. App. 86, 76 S. E. 753; State v. Turner, 82 Kan. 787, 109 Pac. 654, 32 L. R. A. (N. S.) 772, 136 Am S. Rep. 129; Shreveport v. Knowles, 136 La. 770, 67 South. 824; People v. Campbell, 160 Mich. 108, 125 N. W. 42, 34 L. R. A. (N. S.) 58, 136 Am. St. Rep. 417; People v. Trine, 164 Mich. 1, 129 N. W. 3; People v. Aldorfer, 164 Mich. 676, 130 N. W. 351; State v. Rogne, 115 Minn. 204, 132 N. W. 5; Nixon v. State, 92 Neb. 115, 138 N. W. 136; State v. Wallace, 162 N. C. 622, 78 S. E. 1, Ann. Cas. 1915B, 423; State v. Booker, 68 W. Va. 8, 69 S. E. 295.

The letters admitted in evidence were written in response to letters written by the defendant to his codefend-ant, and evidenced malice on the part of his codefendant against the deceased and a formed design to kill him, and the court properly instructed the jury that, before they could consider said letters as evidence, they must find from the evidence that the defendant and his codefendant acted In concert to effect the death of the deceased.

We'think there was evidence, if said letters be entirely disregarded, that warranted the jury in finding that the death of the deceased was brought about by the collusion •of the defendant and his codefendant, and that the said letters were properly admitted in evidence, notwithstanding that after the said letters were written the defendant and deceased apparently resumed friendly relations, and the defendant was again employed by the deceased in the said fire department.. Whether or not friendly relations were in good, faith entertained by the defendant and his codefend-ant toward the deceased at the time of the homicide was a question of fact for the jury.

' “Slight evidence of collusion is all that the law requires to admit the acts and declaration of a conspirator in evidence against his co-conspirator.” Ex parte Hayes et al., 6 Okla. Cr. 321, 118 Pac. 609.

“The least degree of concert of action or collusion makes the act of one conspirator the act of all.” Ex parte Hayes, supra.

In Starr v. State, 5 Okla. Cr. 440, 115. Pac. 356, it is said:

“While there is no direct testimony of a conspiracy between the petitioners, as contended by the Assistant Attorney General, and while it is true that the circumstances testified to in behalf of the state, if taken alone and simply by themselves, would have but little strength, yet, when all these circumstances are taken together, we are satisfied that this letter is admissible as against both of the petitioners. It has been expressly decided that written correspondence and entries made in books and other documents by one conspirator, having reference to the common design of the conspirators, are admissible in evidence against a co-conspirator. See Carter v. State, 106 Ga. 372, 32 S. E. 345, 71 Am. St. Rep. 262; State v. Cardoza, 11 S. E. 195; Bloomer v. State, 48 Md. 524.”

If, however, the admission of said letters in evidence was error, as to which we hold adversely, yet, as malice and premeditation are not elements of manslaughter, the offense of which defendant was convicted, such error was harmless.

“In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence should be incompetent and prejudicial, becomes harmless, when a verdict of 'manslaughter is returned by the jury.” Knight v. State, ante, p. 291, 182 Pac. 734.

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

DOYLE, P. J., and MATISON, J., concur.


author: ARMSTRONG, J..

text:
    JETHRO PIGFORD et al. v. STATE.
    No. A-2978
    Opinion Filed Aug. 8, 1919.
    (182 Pac. 730.)
    1 DISTURBANCE OF PUBLIC ASSEMBLAGE — Evidence—Sufficiency. The record in this ease examined, and the evidence found insufficient to sustain the conviction of Sam Pigford and Bill Mes-singer, and sufficient to sustain the conviction of Jethro Pigford, and that the trial of the said Jethro Pigford was free from reversible error.
    2 SAME. In a prosecution for disturbing religious worship, it was shown that a horse was hitched within 15 feet of an arbor under which religious worship was being conducted; that the accused poured something upon the horse, which the evidence tended to show was carbon bisulphide, commonly known as “highlife,” and that immediately thereafter the horse became excited, and his actions in endeavoring to escape disturbed the said religious services, then in the course of observance; that the accused did not give any testimony denying that he had committed the said action with the intent to disturb the said religious services-. Held, that tiie jury was justified in prasuming that .the accused antiei- ■ pated the probable result of his act, and that the same was done with the intent to disturb the said religious worship, -and was sufficient, in connection with all the evidence, to sustain a verdict of guilty.

      Appeal from County Court, Harmon County; E. C. Abernathy, Judge.

    Jethro Pigford, Sam Pigford, and Bill Messinger were, convicted of disturbing religious worship, and they jointly appeal.
    Affirmed as'to Jethro Pigford, and reversed as to Sam Pigford and Bill Messinger.

      S. A. Folder and W. J. Counts, for plaintiffs in error.

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

The plaintiffs in error, Jethro Pig-ford, Sam Pigford, and Bill Messinger, together with Roy Goods, were jointly informed against for disturbing religious worship, convicted, and Jethro Pigford, Sam Pigford, Roy Goods each fined $30 and costs, and Bill Messinger $10 and costs, for which execution and commitment was ordered, defendants, if said fines and costs were not paid, to remain in jail one day for each dollar due the state. To reverse the judgment rendered, the defendants, Jethro Pig-ford, Sam Pigford, and Bill Messinger jointly prosecute this appeal.

The charging part of the information is:

“That the said Jethro Pigford, Sam Pigford, Roy Goods, and Bill Messinger, on or about the 28th day of August, 1916, in Harmon county, Okla., did knowingly, willfully, unlawfully, and voluntarily disturb religious worship at Wildcat Church by making loud and boisterous noises and frightening a horse, which greatly disturbed a public religious service then in progress.”

The defendants demurred to the information upon the ground,:

“(1) Because it does not charge any offense to have been committed in Harmon county; (2) that more than one offense is charged in the information; (3) that the facts stated in said information do not constitute a public offense; (4) that the court has no jurisdiction to try the offense of highlifing a horse.”

The court overruled the demurrer, and the defendants excepted.

The uncontradicted evidence is that there was a revival meeting in progress at the time and place named in the information; that the defendants attended the said meeting, remaining a short time, and while the meeting was still in progress left in the same vehicle in which they came; but there is no evidence that either of the defendants, while attending the meeting, or while the meeting was in progress, willfully disturbed the said religious worship by making loud and boisterous noises.

There was a horse tied about 15 feet from the arbor under which the meeting was being conducted, and one of the defendants, Jethro Pigford, as the hack in which he was riding passed the said horse, poured some substance from a beer bottle upon the horse, and the horse immediately became greatly excited and endeavored to get loose, and thereby caused considerable excitement among the people attending the said meeting. A bottle was found the next morning near the place where the horse had been tied which contained a few drops of what is commonly known as “highlife.” There is also evidence tending to show that the substance which was poured upon the horse was “highlife.” The evidence also discloses the fact that “highlife,” as the phrase is commonly used, is carbon bi-sulphide. There is no evidence in the case as to what effect the pouring of “highlife” would have upon a horse.' There is no evidence whatever that there existed a conspiracy by the defendants to disturb the religious worship, or that either of the other defendants, Sam Pigford or Bill Mes-singer, advised Jethro Pigford or were in any wise connected with the pouring of the contents of the bottle upon the horse, or even were advised that Jethro Pigford intended to do so, and there is a total failure of evidence to show that Jethro Pigford poured the contents from the bottle with the intention of causing the horse to disturb the said religious meeting, except the act itself.

The owner of the horse, who was a member of said congregation at the time, testified he was disturbed by his horse being “highlifed.” Another member of the congregation testified that he was disturbed by the defendants coming in and going out of the meeting as much as twice.

The defendants earnestly insist that the court committed reversible error in overruling the demurrer to the information. With this contention we are not in accord.

The information clearly points out the offense which the defendants are brought to the bar to answer, “disturbing religious worship.” The information is not duplicitous, as it charges but one offense was committed — by making loud and boisterous noises and by frightening a horse. In one count an offense may be properly charged as being committed by two separate and distinct acts on the part of the accused done at the same time.

The ground of demurrer that the court has no jurisdiction to try the offense of “highlifing” a horse is not germane to a legitimate attack, upon said information, as the information cannot be contorted so as to charge such offense; the “highlifing” of the horse being only one of the acts by which the offense charged — disturbing religious worship — was committed. While the information does not command our approval as a model pleading, we are of the opinion that it was sufficient, and the court did not err in overruling the demurrer thereto.

We think instructions No. 3 and No. 6, given by the court and excepted to by the defendants, were as favorable to them as they were entitled to. The requested instruction which was refused by the court we think was properly refused, because fully covered by the general instructions.

There is no evidence- that either of the defendants, except Jethro Pigford, were in any way connected 'with the pouring of the said substance from the said beer bottle upon the said horse, or had any knowledge that Jethro Pigford intended to do so, and the only averment in the information as to how the said religious meeting was disturbed that is sustained by the evidence was the act of the said Jethro Pigford in frightening the said horse, and therefore the court committed reversible error in not directing, as requested, a verdict of acquittal for the defendants except the said' Jethro Pigford. The horse being tied within 15 feet of the arbor under which the said religious worship was being conducted, Jethro Pigford must be presumed to have known that his act would frighten the horse and cause him to become so excited as to disturb the said religious meeting, as is shown by the evidence it did. It is also to be presumed that he intended the natural consequences of Ms act. The evidence was sufficient to sustain his conviction, and the court did not err in refusing to direct the jury to acquit him.

In accord with the views expressed in this opinion, the judgment herein rendered is reversed as to Sam Pig-ford and as to Bill Messinger. The judgment rendered against Jethro Pigford is affirmed.

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


text:
    FRED BRANHAM v. STATE.
    No. A-2682
    Opinion Filed July 23, 1919.
    Rehearing Denied Aug. 9, 1919.
    (182 Pac. 525.)
    1. RAPE — Previous Virtuous Character — Evidence—Defense. A defendant cannot shelter under a violation of a criminal law by him, and thereby escape conviction. In a prosecution for statutory rape of a female over 16 and under 18 years of age, evidence of an act of criminal intercourse by the defendant and the pros-ecutrix, prior to the time of the specific act of sexual intercourse charged in the information, does not show that the prosecutrix was not of chaste and virtuous character.
    2 APPEAL AND ERROR — Request for Additional Instructions— Reversal. If counsel of the defendant are of the opinion that additional instructions should be given by the trial court, it is their duty to request the court to give such instructions, and upon their failure so to do, a conviction will not be reversed for the failure of the court to give such instructions, unless such failure— in the light of the entire record — to instruct upon some material question of law has deprived the defendant of some substantial right.
    3. RAPE — Statutory Rape — Sufficiency of Evidence. The entire record in this case carefully examined, and the evidence found sufficient to support the verdict returned and judgment thereon rendered, and the trial of the case free from fundamental error.

      Appeal from District Court, Caddo County; Will Linn, Judge.

    Fred Branham was convicted of rape in the second degree, and he appeals.
    Affirmed.

      C. H. Carswell, for plaintiff in error.

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

The plaintiff in error, Fred Bran-ham, was by information prosecuted for having sexual intercourse with Hazel Ranking, she being a female of the age of 17 years, and of previous chaste and virtuous character, and not the wife of the defendant, was convicted and sentenced to imprisonment in the penitentiary at McAlester for the term of five years. To reverse the judgment rendered, he prosecutes this appeal.

The material uncontradicted evidence is that the prosecuting witness, an unmarried female, under 18 years of age at the time of the alleged offense, often spent the night in the home of the defendant, who was a married man, and the prosecuting witness and the defendant were intimate friends; that they often exchanged notes expressing affection; that he made her a present of a watch; that she became pregnant, and he gave her money so she could go away from her home, which was in the vicinity of the defendant’s home, so that her family would not know where she was; that the defendant thought that the prosecuting witness loved him, and that he expected that he had told her that he loved her; that the defendant had told Bob Wilkinson, a school-teacher, that he was having illicit intercourse with the prosecuting witness; that after the prosecuting witness had given birth to a child defendant went to see it, and said that he was satisfied, prior to and after seeing it, that it was his child.

That the prosecuting witness and the defendant had had illicit intercourse is admitted by the defendant, but the evidence is in conflict as to the number of such acts and when they took place, the prosecuting witness testifying that there were a number of such acts, and that all of said acts took place in the home of the defendant, while the defendant testified that he only engaged in one act of sexual-intercourse with the prosecuting witness, and that was in a cornfield. There was also uncontradicted evidence that the prosecuting witness had never had sexual intercourse with any other person than the defendant, and that she constantly associated with the wife of the defendant, and went to the home of the defendant at the invitation- of his wife, and was on intimate terms with the said wife prior to the wife becoming advised of the wrongdoing of her husband and the prosecuting witness. The previous character of the prosecuting witness for chastity and virtue was not attacked.

Among other instructions given the jury by the court, was instruction No. 7, which reads:

“'Gentlemen of the jury, there has been offered in this case evidence of certain other and different alleged acts of sexual intercourse had and accomplished between the defendant and the prosecuting witness, Hazel Runking, of other than the specific act alleged in the information in this case as having occurred on or about- day of August, 1912.

“This evidence, gentlemen of the jury, was admitted for one purpose and only one, and that is that it was competent and relevant for the purpose of showing the relations of the parties and as corroborative circumstances to be considered by the jury in determining whether or not the defendant committed the specific act charged.”

Errors assigned and argued in defendant’s brief are: (1) The-.verdict is not sustained by the evidence; (2) that the court did not directly and specifically instruct what under the law constitutes a previous chaste and virtuous character of the female under consideration. The several other errors assigned in the petition, which are not referred to or argued in the brief of defendant, will be regarded as abandoned, and will not be considered.

The defendant contends, without citing an authority in support thereof, that the evidence, especially for the reason that it shows a previous act of illicit intercourse between the prosecuting witness and the defendant prior to the time of the act alleged in the information, and that the prosecuting witness was not of chaste and virtuous character at the time charged in the information, is insufficient to support the verdict rendered. With this contention we cannot agree. The uncontradicted evidence is that at the time of the alleged illicit intercourse ■ the prosecuting' witness was under the age of consent, and that prior to her illicit intercourse with the defendant she was of chaste and .virtuous character,-and had never had sexual intercourse with any man, and the defendant testified that he had had one act of sexual intercourse with her, and that he saw the child that was born to the defendant shortly after its birth, and said he knew, before and after seeing it, that it was his child, while the prosecuting witness testified that she had had many acts of sexual intercourse with the defendant, and thus it became the province of the jury to say whom, they believed. That the prosecuting witness was induced to submit to the criminal embraces of the defendant by reason of her affection for him accentuates rather than palliates the guilt of the defendant. The contention of the defendant that the prosecuting witness having had sexual intercourse with the defendant prior to the time named in the information shows that she was not at the time alleged in the information of chaste and virtuous character, and therefore the evidence is insufficient to warrant the conviction of the defendant, is fully answered in the well-considered opinion of Judge Doyle in Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132, adversely to the contention of the defendant, in which he says:

“It is contended, however, that because the prosecutrix testified that the defendant had sexual relations with her prior to ‘-the-day of May, 1911, the time alleged in the indictment, she was not on the- day of May, 1911, or at any time after the first act of sexual intercourse with the defendant, a female of previous chaste and virtuous character; therefore he cannot be convicted of any subsequent act, and counsel cite the case of State v. Dacke, 59 Wash. 238, 109 Pac. 1050, 30 L. R. A. (N. S.) 173. This contention presents the question to this court for the first time, and it becomes necessary therefore to determine whether a man may gratify his lust and passion by persuading a chaste child to permit him to have sexual intercourse with her, and afterward^ repeat the act, and then, in a prosecution for * * * rape, take advantage of his previous defilement of the child to avoid the application of the statute. The testimony of the prosecutrix tended to prove several acts constituting the crime charged. The defendant did not move or request the court to require the state to elect on which act it would rely. The court properly instructed the jury, in effect, that if they found from the evidence beyond a reasonable doubt that the defendant, within the county and state, on the-- day of May, 1911, or at any time within three years prior to the finding of the indictment,, did have sexual intercourse with the prose-cutrix, and that she was at the time under 18 years of age and of previous chaste and virtuous character, then they should find the defendant guilty of rape in the second degree. Our Code provides that an indictment or information must charge but one offense. Rev. Laws 1910, sec. 5741.”

Regardless of what may be held in other jurisdictions, it is the settled law of this state that previous acts of illicit intercourse by the prosecutrix and the defendant prior to the act laid in the information does not show a want of chastity and virtue on the part of the prosecuting witness at the time of the act charged, and, the defendant being the author of her undoing, he cannot take advantage of his own wrong and hide himself under the cloak of this statutory requirement as a shield for his protection. Castleberry v. State, supra.

In Spencer v. State, 14 Okla. Cr. 182, 169 Pac. 272, L. R. A. 1918F, 592, Judge Matson says:

“It is not the policy of the law to encourage a culpable defense to an act which is itself criminal.”

The court did not err in giving the seventh paragraph of the instruction excepted to.

In S. G. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418, it is held:

“Upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and .restricted as to leave the jury only at liberty to use it to discover the -motive or intent actuating the accused in the act for which he is on trial.”

Other acts of illicit intercourse than the specific act charged in the information were admitted to be considered by the jury alone for the purpose of showing the relations of the parties, and the court, in accord with .the rule announced in Smith v. State, supra, carefully, in said, instruction complained of, limited an-d restricted the jury so as to leave the jury only at liberty to -use such evidence to discover the relations existing between the parties.

“The general rule that the proof of other offenses is inadmissible, unless a part of the res gestae, does not apply to offenses involving sexual intercourse, and evidence of other acts is admissible to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.” Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731.

“In a prosecution for statutory rape, evidence of acts of sexual intercourse between the prosecutrix and the defendant occurring subsequently and related in time to the" act upon which the prosecution is based is admissible to show the intimate relations and familiarity of the parties and as corroborative of the ultimate fact sought to be proven.” Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

The defendant also insists that the court committed reversible error in failing to instruct the jury directly and specifically what under the law constitutes previous chaste and virtuous character. Under the evidence in this case, the previous chaste and virtuous character of the prosecuting witness not having 'been attacked by any legal evidence, we do not think it was prejudicial error for the court to fail to so instruct the jury, especially as the defendant did not request an instruction' in regard thereto.

“If counsel for defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge, and request that they be given to the jury. If they fail to do this, a conviction will not ,be reversed unless this court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some material question of law the defendant has been deprived of a substantial right.” Lumpkin v. State, 5 Okla. Cr. 489, 115 Pac. 478.

We are unable to see, “in the light of the entire record and instructions of the court,” and in the absence of a request so to do, that the defendant was deprived of any substantial right by the failure of the trial court to specifically define what, in law, constitutes a previous chaste and virtuous character. «

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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


author: DOYLE, P. J.

text:
    JOHN DAVIS v. STATE.
    No. A-3338
    Opinion Filed Aug. 19, 1919.
    1. LARCENY — Sufficiency of Evidence — Grand Larceny. In a prosecution for grand larceny, the evidence examined, and held sufficient to sustain the verdict.
    2. APPEAL AND ERROR — Failure to File Briefs — Affirmance. Where an appeal from a judgment of conviction is taken, and no briefs are filed or argument presented, this court will examine the record, and, if no error is apparent, the judgment will he affirmed.

      Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.

    John Davis was convicted of grand larceny, and he appeals.
    Affirmed.

      Cochran & Ellison, and Harry W. Worsham, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John Davis, was convicted in the district court of Okmulgee' county on an information charging the theft of harness of the value of $30 and his punishment was fixed at imprisonment in the penitentiary for one year and one day.

From the judgment rendered in pursuance of the verdict on the 26th day of October, 1917, an appeal was perfected by filing in this court on April 26, 1918, a petition in error with case-made.

No brief has been filed, and when the case was called for final submission no appearance was made on behalf of plaintiff in error. The Attorney General moved to affirm the judgment for failure to prosecute the appeal.

We have carefully examined the record and the evidence in the case, and it appears that the information is sufficient, and the verdict is abundantly sustained by the evidence. The instructions of the court, to which no objection was made or exception taken, fully and fairly cover the law of the case. Upon the whole case our conclusion is that plaintiff in error had a fair trial, and was properly convicted.

The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    TOM A. KILLOUGH v. STATE.
    No. A-3042
    Opinion Filed Aug. 26, 1919.
    (183 Pac. 430.)
    INTOXICA'? iNG LIQUORS — Possess'on with Intent, to Violate Law— Information — Definiteness. Where an information charges in one •count that on the 27th clay of July, 1916, and between the said date and May 29, 1916, T. A. K. had possession of eight barrels of beer and 42 gallons of whisky, with intent to violate the prohibitory liquor laws of this state, and does not aver that possession of all of said intoxicating liquor was at one and the same time, it is too indefinite and uncertain, and insufficient to sustain a judgment thereon ; and a demurrer thereto, on the ground of being too indefinite and uncertain, should be sustained.

      Appeal from County Court, Harper County; A. H. Walker, Judge.

    Tom A. Killough was convicted of having illegal possession of intoxicating liquors with intent to violate the prohibitory liquor laws, and he appeals.
    Reversed, and cause remanded.

      C. W. Hofmeister and B. F. Willett, for plaintiff in error.

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

The plaintiff in error, Tom A. Kil-lough, hereinafter called defendant, was by information charged with the offense of having illegal possession of intoxicating liquors with intent to violate the prohibitory liquor laws, was convicted and sentenced to be confined in the jail of Harper county for a period of six months and to pay a fine of $500. To reverse the judgment rendered, he prosecutes this appeal.

The charging part of the information in this case is as follows:

“That Tom A. Killough did, in Harper county and in the state of Oklahoma, on or about the 27th day of July, 1916, and between said date and May 29th in the year of our Lord 1916, and anterior to the presentment hereof, willfully, unlawfully, and knowingly commit the crime of possessing certain intoxicating liquors with the intention of violating the law in the manner and form as follows, to wit: That is to say that the said Tom A. Killough did, on or about the date above named, then and there unlawfully and willfully have in his possession intoxicating liquors, to wit: Eight barrels of beer and 42 gallons of whisky, the same being more than any man in Oklahoma should by right, law, and justice have, which were had and possessed by said defendant with the intention of him, the said Tom A. Killough, of violating section 3605 of the Revised Laws of Oklahoma, 1910.”

The defendant, among other grounds, demurred to the information upon the ground “that the information herein is general, indefinite, uncertain, and insufficient to charge a public offense.”

The court overruled the said demurrer, and the defendant excepted.

The information does not state that the eight barrels of beer and 42 gallons of whisky were possessed by defendant at one and the same time, and the time alleged in which the defendant is charged with violation of the law extending over 60 days leaves in doubt whether the-.defendant is charged with the possession of said intoxicating liquors on July 27, 1916, or possession of parts of said liquors on July 27, 1916, and of parts thereof on' other days of said 60 days.. An information must point out the offense charged so specifically that a judgment rendered thereon may be pleaded in bar of another action for the same offense, and this the information does not do. In Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, it is said:

“It is true that an indictment should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense.”

Section 20, art. 2, of the Constitution, provides: That accused “shall be informed of the nature and cause of the accusation against him.”

Section 5739, Revised Laws 1910, provides:

“That the indictment or information must be direct and certain as it regards * * * the offense charged,” and “the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

Section 5738 requires that an information must contain : ’

“A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

“It is not a technical, but a sound, fundamental rule of criminal procedure that the accused must be apprised at the outset by the indictment or information with reasonable certainty of the nature and cause of the accusation against him.” Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331.

We are of the opinion that the information in this case, when tested by the well-settled rules of law herein cited, is too indefinite and uncertain, does not specifically point out the offense with which it is intended to charge the defendant, and that the court committed reversible error in overruling the demurrer thereto.

As the errors pointed out must work a reversal of the judgment rendered, it is unnecessary to review any of the other errors assigned.

The judgment of the trial court is reversed, and cause remanded.

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