text:
    Ex parte JOHN PEBSWORTH.
    No. A-4316.
    Opinion Filed Feb. 23, 1924.
    (223 Pac. 192.)
    Habeas corpus by John Pebsworth for release from custody.
    Writ denied, and petition dismissed.
    Neal & Neal and J. W. Callahan, for petitioner.
    The Attorney General opposed.
   PER CURIAM.

On April 25, 1922, petitioner filed herein his application for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by Austin Park as sheriff of Latimer county, Okla.

The specific ground relied upon for the issuance of the writ was that petitioner was unlawfully restrained of his liberty and held for the crime of robbery with bond fixed at the sum of $2,000 by the district court of Latimer county, which bond petitioner had failed and refused to make, for the reason that on November 15, 1921, the Honorable A. C. Brewster, sitting as judge pro tempore in said district court, did sustain a demurrer to the original information and did not order and direct the county attorney to file a new information against petitioner, but made and entered an order therein which only permitted the county attorney to amend the original information, although sustaining the demurrer thereto; that said order sustaining the demurrer to the original information without order or direction to file a new information operated to discharge petitioner and to exonerate his bail; that thereafter, on the 16th day of November, 1921, the county attorney of Latimer county filed an amended information against this petitioner charging the same offense; that said amended information conferred no jurisdiction on the district court of Latimer county to hold your petitioner; but that the sustaining of the demurrer to the original information was a bar to a further prosecution against petitioner for the same offense.

Further it was alleged that petitioner had applied to the district court of Latimer county to grant his discharge for such reasons, but that a writ was refused him.

Certified copies of the original, the amended informations, the order sustaining the demurrer to the original information, the order of the district court denying the writ, were attached and made a part of the petition in this court.

The writ was denied. The order sustaining the demurrer to the original information never became a final judgment, as the court at the time and during the same term in effect modified said order by providing therein:

“County attorney given leave to file amended information; defendants held to answer to the amended information.”

Section 2612, Compiled Statutes 1921, provides:

“If the demurrer is sustained the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

The statute specifically provides that the judgment sustaining the demurrer is not final where the court “direct the case be resubmitted to another grand jury or that a new information be filed.”

The order permitting the county attorney to file an amended information was sufficient to fulfill the requirements of the statute above quoted. No formal language constituting a specific direction to file a new information is required. Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18.

The amended information was in legal effect a substitute or new information within the meaning of section 2612, supra. Brown v. State, 5 Okla. Cr. 567, 115 Pac. 615; Sellers et al. v. State, -Okla. Cr. -, 226 Pac. 109.

Petition dismissed.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    A. L. IVEY v. STATE.
    No. A-3972.
    Opinion Filed Feb. 25, 1924.
    (223 Pac. 401.)
    (Syllabus.)
    1. Former Jeopardy — Conviction of Maintaining Nuisance not Bar to Conviction for Violating Order of .Court. Section 7022, Comp. Stat. 1921, provides that a place where intoxicating liquor is illegally sold, and where people congregate for the purpose of buying and drinking such liquor, constitutes a public nuisance, and that such nuisance may be enjoined. This statute creates two distinct offenses. The first is a penal offense against the state, that of maintaining a nuisance; the second is a penal offense for violating some particular order of court. A conviction for one' will not necessarily bar a subsequent conviction for the other.
    2. Same-Conviction for Contempt in Violating Injunction not Bar to Conviction for Maintaining Nuisance. A conviction for contempt for violating an order of injunction under section 7022, Comp. Stat. 1921, will not bar a subsequent conviction for keeping and maintaining a place where liquor is sold in violation of section 6999, Comp. Stat. 1921.
    3. Intoxicating Liquors — Statutes Providing Injunction in Aid of Prohibitory Law Constitutional. The constitutionality of statutes providing for an injunction in aid of the enforcement of the prohibitory law is upheld.
    4. Intoxicating Liquors — Proof of Location of Liquor Nuisance. It is not necessary to allege the exact location of a common nuisance. Ordinarily, where the exact location is alleged, it should be proved as stated, but where, the place is described in two different ways and one is proved that will suffice.
    5. New Trial — Verdict not Subject to Impeachment by Juror’s Testimony. On the broad grounds of public policy it is almost universally held that a juror after the trial cannot impeach his own verdict or the verdict of his fellow jurors by affidavit or oral testimony. "
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    A. L. Ivey was convicted of keeping a place where intoxicating liquors were sold, and he appeals.
    Affirmed.

      D. S. Levy, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

A. L. Ivey, plaintiff in error, here designated the defendant, was convicted in the county court of Oklahoma county of keeping a place where intoxicating liquors were sold contrary to law, and his punishment was fixed at a fine of $500 and confinement in the county jail for a period of six months.

The facts may be briefly stated thus:

In May, 1920, the county attorney of Oklahoma county filed a petition in the district court charging the defendant and others with operating and maintaining a place where liquor was sold contrary to law, and where people were permitted to congregate for the purpose of drinking, in which the state asked and was granted a temporary injunction against the defendant and others, enjoining them from permitting or conducting such nuisance, as provided by section 7022, Comp. Stat. 1921. On August 21st following, the county attorney filed an application for a citation, charging that the defendant had violated the injunction theretofore granted by permitting numerous and divers persons to congregate at this place for the purpose of drinking intoxicating liquor, and that on that day whisky, wine, and beer were bartered, sold, and given away on the premises, and asked that the defendant be adjudged guilty of contempt of court for violating the injunction. On the same day there was filed in the county court an information charging the defendant with keeping a place where intoxicating liquor was sold, by the commission of the same identical acts set forth in the citation for contempt in the district court.

In September following the defendant was tried before a jury in the district court, and found guilty of contempt for violating the orders of the court by operating a whisky joint in the place designated, in violation of the injunction order. Judgment upon the verdict fixed his punishment at a fine of $250 and imprisonment in the county jail for a period of 30 days. This case was appealed to the Criminal Court of Appeals, and the judgment therein later affirmed by this court. Ivey v. State, 21 Okla. Cr. 182, 206 Pac. 257.

In December following the case for keeping a place where intoxicating liquors were sold, in violation of the provisions of section 6999, Comp. Stat. 1921, came on to be heard in the county court, in which the defendant entered a plea in bar and of former jeopardy, on the ground that the same indentical facts on which he had been charged and found guilty in the contempt case in the district court were the identical acts constituting the offense charged in the information filed in the county court. His special plea in bar was by the court overruled. The defendant was then put on trial on his plea of not guilty, resulting in his conviction as hereinbefore stated.

The assignments of error urged by defendant may be grouped as follows:

First. That the defendant’s plea in bar should have been sustained.

Second. That there was a variance between the proof and the allegations in the information describing the location of the place where the liquor was alleged to have been sold.

Third. Because the trial court refused to permit the verdict of the jury to be impeached upon an offer to show that one of the jurors had heard of extraneous facts not in evidence which, he communicated to the other jurors, and which probably induced the jury as a body to concur in the verdict rendered.

Section 7022, Comp. Stat. 1921, provides that a place where intoxicating liquors are illegally kept, and where people are in the habit of congregating for the purpose of buying and drinking intoxicating liquor, may be adjudged a public nuisance which any court of record may by order abate or enjoin, and that the owner, keeper, or manager of such place may be convicted and punished for keeping and maintaining such place. The punishment shall be imprisonment in the county jail for not less than 30 days nor more than 6 months, and a fine of not less than $50 nor more than $500. It is further provided in this section that any person violating the terms of any injunction granted in such proceeding shall be punished as for contempt, by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail not less than 30 days nor more than 6 months, or by both such fine and imprisonment.

An analysis of this statute discloses that it provides for two different and distinct offenses, both of which may relate to the same facts or grow out of one and the same transaction. The first is a criminal offense against the state for maintaining a nuisance; the second is a criminal offense for violating a particular order of the court. That the two are separate and different offenses is apparent from the language of the statute and from the fact that different punishments are prescribed, and because the two are of an entirely different nature, designed to redress different infractions of law. The former is a general proceeding for an offense against the peace and dignity of the state; the latter is a proceeding to preserve the dignity of the court and to aid in the enforcement of its orders.

The distinction between the two offenses named in section .7022, supra, applies equally between the offense of violating a court order and the offense of maintaining a plaee where intoxicating liquors are kept for sale, defined in section 6999, Comp. Stat. 1921. These,’ likewise, are two separate offenses, in violation of two different laws designed to prevent or correct two different evils.

These statutes do not modify the general rule that one punished for contempt may be again punished for a violation of the general law where the facts show a Violation of a different penal law, even though both offenses grow out of one and the same transaction. For instance, an attorney might be punished in contempt proceedings for a direct or an indirect assault upon opposing counsel or upon the judge, and afterwards be punished criminally for whatever degree of assault he might have committed. Jones v. Mould, 151 Iowa, 599, 132 N. W. 45; Gibson v. Hutchinson, 148 Iowa, 139, 126 N. W. 790, Ann. Cas. 1912B, 1007; 13 C. J. “Contempts; Forms, Adjudication,” § 78. 6 R. C. L. 530; State v. Roby, 142 Ind. 168, 41 N. E. 145, 33 L. R. A. 213, 51 Am. St. Rep. 174; Ex parte Looper, 61 Tex. Cr. R. 129, 134 S. W. 345, Ann. Cas. 1913B, 32. The cases above cited hold to the theory that a. punishment for contempt is quasi criminal; that its object and purpose is not to punish for a public offense, but to compel obedience and respect for the orders of the court. So where the statute makes the violation of a court order punishable by a fine or imprisonment it is of course criminal in its nature, but the object and purpose of this statutory punishment remains the same; that is, to compel obedience and respect for the orders of the court. Notwithstanding the fact that an act which is a violation of a court order under this or other statutes may also be a crime under the general penal law, it is a different crime, punishable for a different purpose.

In the absence of statutes directing otherwise, an injunction is a proceeding ancillary to a civil action; but in many of the states, including our own, statutes have been enacted providing for injunctions in aid of the enforcement of the criminal law, and the constitutionality of such statutes has been upheld. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653; Ex parte Looper, supra.

As long ago as 1881 the prohibitory laws of the state of Kansas, for the most part penal in their nature, provided that all places where intoxicating liquors were manufactured, sold, bartered, or given away in violation of any of the provisions of the prohibitory act should be deemed a common nuisance, and provided that the owner or keeper of such a place should upon conviction be adjudged guilty of maintaining a common nuisance, and punished by a fine and imprisonment. In the same section it was provided further that sueh nuisance might be enjoined by the court, and that any person violating the terms of the injunction granted in such proceedings should be punished as for contempt, by a fine and imprisonment. In the Mugler Case, supra, Mr. Justice Harlan, speaking for the United States Supreme Court, held that the state had the authority to prohibit the manufacture and sale of liquor, and had the power to declare any place kept and maintained for the illegal manufacture and sale of liquor should be deemed a common nuisance, and be abated, and at the same time to provide the punishment of the offender for maintaining the nuisance; that in addition the state had a right to lodge with the trial court the power to punish one who had violajed the court’s orders in the injunction proceedings. The provisions of the act are threefold: first, to punish the offender for keeping or maintaining such a place; second, to authorize a proceeding against the property itself; and, third, to punish anyone who violated or disregarded any order made in the injunction proceedings. The court held further that the proceedings, although equitable in their nature, were not inconsistent with due process of law.

This procedure by injunction, as shown by the Texas cases cited, and as provided by the Kansas statutes and our own statutes, is part and parcel of the criminal procedure devoted to the means of suppressing the illegal manufacture and sale of liquor, and the injunction remedy retains many of the characteristics of the injunction as allowed in equitable procedure at common law. That being the case, we fail to see that there is any peculiarity about the writ of injunction or any particular sanctity about criminal or quasi criminal acts which would prevent the Legislature from providing that one may be enjoined from establishing or maintaining a public nuisance, and in the same statute providing for penal punishment of one who establishes or maintains the nuisance, and providing another and different punishment for one who violates the orders of the court pending the injunction proceedings. The court so held in the Looper Case, supra. Quoting from the syllabus in that ease:

“One who has been convicted of selling whisky in violation of the local option law and of an injunction restraining him from selling intoxicating liquors may not, when charged with contempt for violating the injunction, plead his conviction in bar of the contempt poceedings.”

The Supreme Court of the United States, through Chief Justice Fuller, held that-both houses of Congress' have power to punish witnesses for contempt for refusing to give testimony before their respective committees, and, while the witnesses are protected against criminal proceedings based on such testimony, a witness who refuses to testify may, after he has suffered punishment for contempt, also be indicted under a statute making it a misdemeanor to refuse to answer, and punishment for one cannot be pleaded in bar of conviction for the other. In re Chapman, 166 U. S. 661, 17 Sup. Ct. 677, 41 L. Ed. 1154.

We conclude, therefore, that, a punishment for a violation of an order of court being different in substance and purpose from the punishment for the offense of keeping and maintaining a nuisance, it is not, therefore, one and the same offense within the meaning of the constitutional guaranty that no person shall be twice put in jeopardy of life or liberty for the same offense, and this notwithstanding the fact that both offenses are made criminal under our statutes, and may be predicated upon the same identical facts.

The defendant next urges that there is a fatal variance between the allegations and the proof, in that the proof failed to support the allegations as to the particular description of the place maintained as a nuisance. The information described the place as a two-story building, located on the unnumbered lots in block 15, White Orchard addition to Oklahoma City, Oklahoma county and state, commonly designated and known as the Deupree Roadhouse. The proof did not show conclusively that this house was in block 15, White Orchard addition, but it did show clearly that it was the place commonly known as the Deupree Roadhouse in that vicinity. It is not necessary to allege exact location of a common nuisance. State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974; 20 R. C. L. 486. Ordinarily, where the exact location is alleged, it should be proved as stated; but, where, as here, the place is described in two different ways, and one is proved, that will suffice under circumstances like this.

Long after the verdict and after the jury was discharged defendant offered to show in support of a motion for a new trial that one of the jurors had been told by his daughter that others had told her that young girls went to this Deupree Roadhouse, where they became intoxicated, and that this juror communicated this hearsay evidence to his fellow jurors, with the .declaration that the keeper of such a place ought to be imprisoned for at least 50 years. Whether this occurred before or after submission does not appear. On the hearing of the motion for a new trial, in December following, the defendant offered to show by the oral evidence of certain jurors that juror Hicks made this statement in their presence during the trial and that the statement probably influenced the jury in arriving at the verdict. This offer • was by the court refused.

On the broad grounds of public policy it is1* almost universally held that a juror cannot impeach his own verdict or the verdict of his fellow jurors in this manner. This question is ably discussed in Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172. The holding in the Keith Case has since been followed by this court. Even if the rule were to the contrary, it would by no means follow that hearsay statements obtained through a chain of persons, each of whom obtained his information from another, would influence a jury sworn to try the case on the evidence submitted.

The judgment of the trial court is affirmed.

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


author: DOYLE, J.

text:
    TOM BOSWELL v. STATE.
    No. A-4099.
    Opinion Filed Feb. 26, 1924.
    (223 Pac. 208.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Transportation. In a prosecution for unlawfully conveying intoxicating liquor, evidence held insufficient to support the -verdict and judgment of conviction.
    Appeal from County Court, Love County; B. W. Jones, Judge.
    Tom Boswell was convicted of transporting intoxicating liquor, and lie appeals.
    Reversed.
    . Cameron & Walden, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges Bill Herald and Tom Boswell with unlawfully transporting intoxicating liquor. Five of the jurors returned a verdict finding “the defendant Tom Boswell guilty as charged in the information herein, and assess his punishment at $50 fine, 30 days in jail, and recommend the judge to omit the jail sentence.” He has appealed from the judgment rendered on the verdict.

The first error assigned is that the evidence is insufficient to support the verdict. The evidence shows that on the date alleged Frank N. Smith, sheriff, Jim Stafford, deputy, and Winston Smith went to the Herald place and found a wagon in front of the house loaded with household goods, tubs, and fruit jars. Herald, Boswell, and another man were loading the wagon. When the officers appeared the defendant Boswell picked up a quart fruit jar, took about 15 steps, and broke it on a rock. The sheriff picked up the end of the bottle which contained about a teaspoonful of corn whisky.

When the state rested the defendant demurred to the evidence, and asked the court to advise the jury to return a verdict of acquittal,' on the ground that the evidence is insufficient to show that the defendant transported any intoxicating liquor as charged, and that the evidence shows a substantial variance from the offense charged, which the court refused to do, and allowed exceptions.

As a witness in his own behalf Tom Boswell testified:

“I am 26 years old, a farmer. I was helping Bill Herald move. The household goods belonged to him. I did not transport intoxicating liquo'r from any place in Love county or anywhere else. The sheriff was about 20 steps from me when I first saw him. I had just picked up a fruit jar and was looking at it. I started and stumbled and it struck a rock. I do not know what it contained.”

The offense for which the defendant was tried is defined as follows:

“It shall be unlawful for any person, * * * to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized.” Section 7002, Comp. Stats. 1921.

An essential ingredient of the offense charged under the statute is a conveyance from one place to another place, and to sustain a conviction this fact must be shown. It was not shown by the testimony in this case, and for that reason the evidence is insufficient to support the verdict of the jury.

It follows that the conviction should be set aside, and the judgment of the lower court reversed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    STATE ex rel. J. C. WALTON v. GEORGE W. CLARK, District Judge,
    No. A-4950.
    Opinion Filed Feb. 27, 1924.
    (223 Pac. 1118.)
    Cause dismissed.
    Ben F. Williams, H. B. Martin, F. E. Riddle, and Warren K. Snyder, for petitioner.
    George F. Short, Atty. Gen., and J.' K. Wright, Co. Atty., for respondent.
   PER CURIAM.

Application of Hon. J. C. Walton against George W. Clark, judge of the district court of the Thirteenth judicial district, Oklahoma county, filed in this court December 11, 1923, alleging that respondent had refused to disqualify in the trial of' six certain indictments returned by the grand jury in the district court of Oklahoma county on the 23d of November, 1923; that four of said indictments charge relator with diverting state funds, one indictment charges relator with preventing the members of the House of Representatives from meeting, and one charges relator with intimidating an officer, to wit, the said respondent. The alternative writ was issued. December 27, 1923, all parties appeared and in open court stipulated that said cause be dismissed. Whereupon it was adjudged and ordered that the cause be dismissed.


text:
    STATE ex rel. JOHN KELLEY v. B. C. LOGSDON, District Judge.
    No. A-4499.
    Opinion Filed Feb. 27, 1924.
    (223 Pac. 1118.)
    Cause dismissed.
    J. H. Mathers, for relator.
    George F. Short, Atty. Gen., and Earl A. Brown, Co. Atty., for respondent.
   PER CURIAM.

This. is an application of John Kelley for writ of mandamus, alleging the disqualification of B. C. Logsdon, judge of the district court of Love county, to try an information wherein relator was charged with the crime of murder, and alleging that respondent had refused to disqualify in the trial of said information. The alternative writ was issued, and on the return day all parties appeared, and in open court it was agreed that said cause be dismissed. Whereupon it was adjudged and ordered in open court that the cause be dismissed.


author: MATSON, P. J.

text:
    DAVE POLLOCK v. STATE.
    No. A-4344.
    Opinion Filed Feb. 27, 1924.
    (223 Pac. 210.)
    (Syllabus.)
    1. Homicide — Exclusion of Evidence that Deceased Had Something in His Hand When Shot Held Harmless. In a homicide case, where the plea i's self-defense, the defendant offered to prove by a witness that at the time of the killing deceased had something in his hand upraised as if to strike the defendant, but witness did not know and could not testify as to what deceased had in his hand. The witness was permitted to testify that deceased had his hand upraised as if to strike defendant. Held, the refusal of the trial court to permit the witness to further testify that deceased had something in his hand when shot, the nature or description of which witness did not know, was not reversible error. Where it is apparent the witness would not testify that deceased had a knife or pistol or some implement or weapon that would indicate a design to kill or to commit some serious bodily harm to defendant, the proffer merely to prove that he had something in his hand was immaterial to the issue of self-defense.
    2. Trial — Refusal to Require Calling of Eyewitness Whose Name Indorsed1 on Information Held not Error. Since defendant may • testify in his own behalf and compel attendance of 'witnesses by compulsory process, and is entitled to the aid of counsel, at public expense if necessary, refusal to require the county attorney to call an eyewitness whose name is indorsed on the information is not error.

      3. Homicide — That Accused Was Intoxicated Admissible on Issue of Self-Defense. In a homicide case, where the plea is self-defense, evidence as to whether the accused was intoxicated or under the influence of intoxicating liquors at the time of the homicide is competent for the purpose of aiding the jury to determine whether or not the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life, or receiving great personal injury.
    4. Witnesses' — In Homicide Case Falsity of Defendant’s Denial of Intoxication at Time of Killing May Be Shown by Intoxication a Few Minutes Afterwards. Where the defendant as a witness denied his intoxication at the time of the killing, it is competent to impeach him by showing his state of intoxication at the time of his arrest within five minutes after the killing!
    5. Trial — Waiver of Service of List of Witnesses by Failure to Object. The service of a list of witnesses upon defendant to be used by the state in chief té a matter which the defendant can waive and which he does waive if no timely objection is interposed.
    6. Same — Waiver of Objection to Unlisted Witness. Where an incomplete list of witnesses is served upon defendant and the state at the trial calls a witness whose name is not' indorsed upon such list, the appropriate time to object is at the time the witness is called to testify; otherwise, the defendant' by his own conduct has waived the objection.
    7. Same — Rebuttal Testimony by Unlisted Witness Held not Error. Where a witness is called by the state and testifies without objection in chief against the defendant, although his name is not indorsed upon the list of witnesses served upon the defendant, and the court upon motion of defendant withdraws the testimoy of such witness from consideration by the jury and thereafter permits such witness to testify in rebuttal to matters of impeachment against the defendant, a proper foundation having been laid for the reception of such evidence in rebuttal, no error was committed of which the defendant could complain.
    8. Evidence — Opinion Evidence Invading Province of Jury Properly Excluded. It is not' error to exclude the answer of a witness to a question which it is apparent from the question. asked calls for the opinion of the.witness on a matter involving an invasion of the province of the jury.

      9. Instructions Approved. Instructions examined and considered in connection with the evidence, and the charge as a whole held to correctly state the law of the case.
    Appeal from District Court, Tulsa County; Redmond S. Cole, District Judge.
    Dave Pollock was convicted of the crime of manslaughter in the first degree and sentenced to serve a term of four years in the state penitentiary, and he appeals.
    Affirmed.
    This is an appeal from a judgment of the district court of Tulsa county, Okla., wherein plaintiff in error, Dave Pollock, hereinafter referred to as defendant, was convicted of the crime of manslaughter in the first degree and sentenced to serve a term of four years in the Oklahoma state penitentiary at McAlester, Okla.
    The record discloses that defendant and deceased, Jim Paris, were raised in the same community near Cleburne, Tex., and had been friends since young manhood; that on the day of the alleged homicide, June 1, 1921, each of them resided in. what is known as West Tulsa, Tulsa county, Okla., living some three or four blocks apart. The deceased was a married man, as was also' the defendant, but at the time of the homicide defendant’s wife was away from home. Some time in the afternoon of the day of the alleged homicide, and presumed to be about 3 o’clock, Jim Paris and his wife and two or three other parties started from where deceased lived to go to a place called Turkey Mountain, about five or six miles northwest of Tulsa, for the alleged purpose of looking at some property which one of these parties was on a deal for. They made the trip in a car belonging to a person by the name of Moran with two other parties, Badger or Batchley, and some woman named Guinn. After leaving the home of the deceased they went by Pollock’s house, where they stopped, and deceased got out of the car and went inside, where he remained for several minutes. They then went on to Turkey Mountain, and while they were on the trip drank some whisky. Starting back from Turkey Mountain they stopped at a roadhouse, had a lunch and some “choc beer,” and after that came back home, and stopped again at Pollock’s place. Paris, his wife, and Miss Guinn got out of the car and went into the house, where they engaged in a conversation in which defendant accused deceased of taking $100 out of his pocket on the first visit made to the home.
    Defendant testified that he had just been paid off and had $121 in his pants pocket; that he had been asleep when the deceased came to the house and woke him and asked for change for a $10 bill; that he (defendant) did not get up, but told deceased to look in his pocket and get the change; that soon after this, when defendant got up and dressed, he discovered over $100 of his money was gone. On the return trip from Turkey Mountain, when deceased and his wife stopped at Pollock’s house, Pollock accused deceased of taking the money, and they had some angry words concerning it, at which time deceased and his wife, at the request- of the defendant, started to leave the house.
    They had got outside of the house and off the porch, when defendant, according to the state’s witness, called to deceased and asked him to come back, or made some kind of an invitation for him to come back, at which time defendant had appeared in the door, but- had not come out on the porch. Deceased turned and went back to the porch near the door, and there were some other words passed between them with reference to the money. Deceased’s wife was with the deceased and had hold of his arm or was by his side when defendant pulled a pistol and fired one shot. When the shot was fired, deceased fell over backwards with part of his body extending over the porch but still remaining on this porch.

      When this happened, deceased’s wife began screaming and started away. Defendant also shortly thereafter started away, leaving deceased lying on the porch. He had not gone very far when an officer who had heard the shot came in contact with him. Defendant still had the pistol in his hand at that time, and gave it to the officer and was taken in charge by the officer. It was also shown that there was but one shot fired, and that the parties first reaching the body of the deceased found him to be unarmed.
    The defense interposed was self-defense. The defendant, after having been permitted to testify, among other things, that he had known the deceased intimately for 18 or 20 years, and had lived in the same communities with him during practically all of that time, was permitted to state that deceased had attempted at one time to cut him with a. knife, and also to testify about other difficulties which the deceased had hadi with others than the defendant in which deceased had used a knife, which transactions the defendant claimed he had witnessed, then detailed his version of the matters and things leading up to and which culminated' in the killing of Jim Paris.
    The following excerpts from the defendant’s testimony disclose his version of these occurrences:
    “Q. Who was the next person you saw after getting to sleep, and what time was it? A. Mr. Paris about 3 o’clock that afternoon. Q. Where was Mr. Paris when you first saw him? A. He came to my house. Q. Just state to the jury what if anything he did or -said when he came to your house ? A. He came and knocked on the door and tried to get in, and he came around to the window and woke me up and I got up and let him in. Q. Do you know as a matter of fact whether he had knocked on the door before he came to the window? A! He told me that he did. Q. How? A. He told me that he did. Q. He told you what ? . A. Told me he tried to get in at the door and couldn’t wake me up and he came to the side door where I was sleeping — the window. Q. You mean the side window or the side door? A. Side window. Q. Did you let him in? A. I did. Q. What if any conversation or what took place between you and Mr. Paris at that time? A. He wanted me to go to a choc joint with him. Q. Just state to the jury the exact language that he used, and the exact language that you used at that time and place? A. Well, when he came in he.asked me if I didn’t want to go to a choc joint. I told him, ‘No;’ I couldn’t go; I had to come over to town that evening; I had to sleep; I wanted to work that night. Then he asked me, he says, ‘I want you to go with me because I am on a little deal; I want you to sanction it.’ 1 says, ‘Jim, I can’t go, but I will straighten that some other time.’ Then he wanted change for a $10 bill. I told him, ‘Sure,’ to hand my pants, and in place of handing it over he takes this money out himself, turned right around in front of me. There was fifteen $1 bills on the outside of this roll and he counted off nine $1 bills and says, ‘I will take these two halves;’ he says, ‘You won’t need them; I need them for change.’ I told him, ‘All right.’ Then he takes his $10 and puts it back around this other roll and puts the rubber around it, and he says, ‘I will put this back in your pocket and lay your pants back over there.’ Which I thought he did. And we talked a little while, and he pulls out a half pint bottle of whisky and wants to give me a drink. I told him I didn’t want any; I would take a drink when I got up. He says, ‘I will bring you back some choc if you won’t go with us.’ I told him, ‘All right.’ He said the crowd was waiting on him; he would go ahead; and he rushed on out. I went to the door with him and fastened the screen right back like it was. Q. Did what? A. I fastened the screen back, hooked it back. Then he goes on down the street and I turns and goes on back to the room and to the bed. On my way back there I picked up my pants and run my hand in my pocket. There is nine $1 bills, and the halves is all there was in my pants, and the others was gone. It- was probably three minutes since he had left when I missed this money. I put on my clothes and goes down to Mr. Paris’ house; thought I would catch him before he went to the choc joint. I goes down there; he had done gone. I went back home and stayed around there till he came back. Q. Just tell the jury in your own way just exactly what oeurred after Mr. Paris came in the house the second time. A.- Well, when he came in the second time there, he says, ‘I didn’t bring you any choc,’ he says. ‘It wasn’t no account,’ he says; ‘it was too young.’ I says, I told him I didn’t want any anyhow; I didn’t care for any. Then I asked Mr. Paris, I says, ‘Didn’t you make a mistake when you made the change for that $10 this afternoon?’ And he just flies off the handle. ‘Don’t accuse me of getting your money,’ he says, ‘Anybody could have got your money.’ He says, ‘I didn’t get it,’ he says, ‘Don’t accuse me of getting it.’ I told him, I says, ‘Jim,’ I says, ‘I know you got it.’ I says, ‘There wasn’t nobody here but you.’ I says, ‘I missed it in three minutes after you was gone,’ and tried to explain with him, and he wouldn’t stand no explanation at all, only just said he didn’t get it, and he didn’t want me to accuse him of getting it. Q. Up to that time had you accused him of clandestinely getting your money? A. No; he didn’t allow me to accuse him; he denied it at first. Q. You had just asked him at that time if he hadn’t made a mistake? A. Yes, sir. Q. All right; go ahead. A. We was chewing the rag for three or four minutes before his wife and Miss Pearl came in. I didn’t know there was any one around at all. Q. Just.tell the jury exactly everything that happened between you and Mr. Paris, if you haven’t done so, that between you and him before the women folks came in. A. There wasn’t anything; only we were just arguing about the money. He said he didn’t get it, and I was trying to explain with him where he did get it, because I thought that he would give it back to me if he knew that I knew he got it. So when these women came in there wasn’t no light lit and I says to some of them, ‘Light the lamp,’ when these ladies walked in. One of them, I don’t know which one, done it; I never paid no mind; one of them lit the light. And we was arguing there about this money, and he said he didn’t get it. And I told him, I said, ‘Now, Jim,’ I says, ‘if you don’t give this money back,’ I says, ‘I never had a man arrested in my life for nothing,’ but, I says, ‘if you don’t, I am going to have you arrested.’ And he says, ‘Well,’ says, I forget now just exactly how he did say that; he says, ‘Yes,’ he says, ‘You copperhearted son of a bitch; I will cut your head off,’ something like that. Q. Was that on the inside of the house? A. That was on the inside at that time and he was standing up very near the middle door. I was setting there in a chair probably a foot or two of the wall plumb across the house from him. He was standing there in the door, and he starts over towards me, and his wife takes hold of his arm, I gets up and kinds of sidles over towards the door away from him. ■ Q. Up to that time had you been standing or had you been sitting? A. I had been sitting all the' time. Q. All right. A. I told him, I says, ‘Get on out of here, and stay out,’ and I said, ‘Don’t never come back around me any more.’ He says, ‘I will go when I get damned good and ready. ’ I told his wife to take him on out, and she idid. She was tring to get him to go before that, but he wouldn’t go. Then they both went on out. Just as they went out, I told him, I says, ‘Jim, I don’t want to have you arrested;’ I says, ‘You better bring that money back or get that all settled.’ I says, ‘I don’t want to have you arrested.’ And he just turned around and come back. ‘Yes,’ he says, ‘I will cut your God damned head off now and settle it,’ and starts back in the house. When he does that, when he starts back, I jumped to shut the screen door, to hook it. It was already shut, but I jumped to put this hook in there so he couldn’t open it. In the meantime I grabbed my gun laying under a pillow on the sofa there. He just grabbed hold of the screen door and jerked it open. Q. With what hand? A. With his left hand, and he had his right hand kind of like that [indicating]; I couldn’t tell what he had in it at the time; I couldn’t tell what he had in it; but he had his right hand kind of drawed back like that [indicating]. And he jerked the screen open. When he jerked the screen door open and started in, I shot him. I didn’t know — I didn’t want to kill him, I just wanted to stop him because I knew if he got hold of me he would cut me up or do me great bodily harm. Q. Will you tell the court and jury whether or not he had anything in his hand? A. I couldn’t say whether — he had something in his hand, but I couldn’t distinguish what it was. Q. What did you think it was? A. I thought it was a knife; that is what I thought it was.”
    At the trial of the case the defendant introduced a witness who testified that some three or four days after the killing he found buried in the sand out in the yard' a certain penknife which was offered in evidence, and which was directly responsible for one of the errors complained of by defendant’s counsel.
    It is also shown from the record that the plaintiff in error denied being drunk on the evening of the killing and denied having any whisky in his house; whereupon the state introduced the evidence of a witness who went to the place of the killing early the next day and there found a gallon of corn whisky. This is the foundation for another of the assignments of error.
    The record also discloses that there were but two eyewitnesses to the homicide, Mrs. Paris and Miss Guinn; at least Miss Guinn claims to have seen the killing, but was antagonistic to the state and was introduced by defendant and proved to be a valuable witness to him. The fact that the state failed to introduce Miss Guinn as a witness is alleged as error, and plaintiff in error sought to force by order of court the introduction of Miss Guinn as a witness by the state under the old English rule that all eyewitnesses must be introduced by the prosecution, and this forms the basis of another assignment of error.
    Crossland & Ward, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State:
   MATSON, P. J.

(after stating facts as above). The first assignment of error urged by counsel is:

“The learned trial court erred in excluding competent and relevant testimony offered by the plaintiff in error.”

Defendant offered Nora (Quinn) Moring as a witness to prove that the deceased came upon the plaintiff in error with a knife at the time of the shooting. The testimony given by said witness is as follows:

“Q. How did he open the bottle of whisky, Mrs. Moring? A. He opened it with a knife. Q. Can you tell the jury what kind of a knife it was? A. Well, it was a knife; I couldn’t— right at the time I paid no attention to the knife ; I couldn’t swear to the knife. I know he did it with a knife. Q. I will ask you to examine that knife and tell the jury whether 'or not you can testify that was the knife he used in opening the bottle of whisky?
“Mr. Goldsberry: We object to that, your honor, as incompetent, irrelevant, and immaterial at this time for the reason that the witness has testified she didn’t know what kind of a knife it was, didn’t see it, and paid no attention. A. It was a knife something like that.
“The Court: The objection will be sustained; the answer will be stricken.
“Mr. Goldsberry: We uow move that the áttempted answer of the question, the portion of the answer to the question, be stricken and the jury instructed not to consider it.
“The Court: It was stricken, and the jury will be instructed not to consider it.
“Q. I will ask you to examine the knife there.
“Mr. Goldsberry: We object to that as incompetent, irrelevant, and immaterial, having the knife examined in the presence of this jury, for the reason that it has never been identified.
“The Court: Overruled.
“Q. You have examined this knife, have you not, that I have in my hand? A. I have. Q. I will ask you to state to the jury if you observed a knife that the deceased used in opening that bottle of whisky sufficiently to determine whether or not it was that same general description of this knife or not?
“Mr. Goldsberry: We object to that, your honor, as leading and suggestive, and for the further reason it is incompetent, irrelevant, and immaterial under the former testimony of this witness.
“The Court: Yes; let her describe .what she saw; it is the best evidence.
“Q. Describe the knife as nearly as you can that you saw him use in opening the bottle of whisky.
“Mr. Goldsberry: We object to that as incompetent, irrelevant and immaterial under the former testimony of this witness, for the reason that the witness has previously testified she paid no attention at the time referred to by the question of counsel.
“The Court: Overruled. Read the question. (Question read by the reporter.) A. It was a knife something similar to that, I couldn’t say it was the same knife.
“Mr. Goldsberry: We object to that answer and ask that it be stricken as not responsive to the question, and the jury instructed not to consider it.
“The Court: That is a conclusion. That will be sustained.
“Mr. Ward: That is not important enough to quibble long about. We will pass along.”

The following additional testimony of the same witness is found in the case-made:

“Q. Do you know whether or not he was doing anything with the door? A. I couldn’t tell exactly. Q. Well, did you see anything in Mr. Paris’ hand, right hand, when he held it up that way?
“Mr. Goldsberry: Object to that, your honor, as leading and suggestive of . the answer.
“The Court: Sustained.
“Q. What did Mr. Paris have in his hand, if anything?
“Mr. Goldsberry: We object to that, your honor, as assuming a fact not in evidence in this case.
“The Court: Overruled.
“Q. What, if anything, did Mr. Paris have in his hand, his right hand, when he raised it? A. I couldn’t tell for sure. Q. Do you know whether or not he had anything? Mr. Golds-berry: We object to that, your honor, as incompetent, irrelevant and immaterial.
“The Court: Sustained.
“Mr. Ward: Your honor, we insist that that question is admissible, she said she couldn’t tell exactly what he did have in his hand.
“By the Court: Q. Did you see his hand? A. I did.
“The Court: The objection will be sustained.
“Mr. Ward: Her testimony was she didn’t know exactly to that effect, what he did have in his hand. My next question is do you know whether or not he had anything in his hand.
“Mr. Goldsberry: I submit, your honor—
“Mr. Ward: I think this is clearly legitimate, competent, and relevant.
“The Court: Sustained.
"Mr. Ward: Exception. For tbe purpose of the bill this defendant submits that he offers ■ to prove—
"Mr. Goldsberry: We object to any offer being made in the presence of the jury.
"The following offer was made out of the hearing of the jury:
"Mr. Ward: The testimony of this witness will be, if permitted to testify, that she didn’t know exactly what was in his hand, but he had something in his hand upraised as if to strike the defendant; she didn’t know whether it was a knife or not, but it was something in his hand; she didn’t know what it was.
"Mr. Goldsbérry: To which offer the state objects, in view of the former testimony of this witness relative to the ¡same subject-matter; it is incompetent, irrelevant, and immaterial.
"The Court: The objection to the tender will be sustained.
"Mr. Crossland: Give us an exception. .
"Mr.' Ward: We will add to this that the testimony of the defendant will show that the defendant had upraised in that hand at the time we are asking this witness about a knife with which he was endeavoring to assault and do great bodily harm to this defendant or to kill him, and at the very time inquired of did have a knife in his hand.
"The Court: Bearing in mind the foregoing answer of the witness, the objection will be sustained.”

It is the refusal of the court to permit this offered testimony above quoted to be introduced of which plaintiff in error complains.

It will be observed that this witness refused to positively state that the deceased had a knife in his hand at the time he was shot, the statement of the attorney being that the witness, if permitted, would testify that she did not know exactly what was in his hand, but that he had something in his hand. The witness had theretofore stated that she could not tell for sure what the deceased had in his hand, if anything. If the witness was positive in her statement that she did not know what it was- if he did have something in his hand, how could defendant have been injured by the refusal of the trial court to permit the witness to testify that deceased had something in his hand? Unless the witness could testify that the deceased had a knife or pistol or some implement or weapon that would indicate a design to kill or commit some serious bodily harm to defendant, the proffered evidence was of little probative force. We cannot see that the refusal of the trial court to permit this witness to add to the testimony which she had already given the further statement that deceased had something in his right hand when shot, the nature or description of which she did not know, was such error,' if any, as should result in a reversal of this conviction. Especially do we think this alleged error harmless in view of the fact that defendant himself testified that he “couldn’t tell what he had at the time; I couldn’t tell what he had in it; but he had his right hand kind of drawed back like that” (indicating).

■ It is next contended that-—

“The trial court erred in not directing the jury to return a verdict in favor of the defendant at the close of the trial, for the reason that he was shown that there was an eyewitness to the transaction who was not related either to the defendant or the deceased, and who was not shown to have been disqualified in any way as a witness, and the state was bound to use her as a witness and failed to do so.”

The proceeding here invoked was an attempt to require the state to follow the old English rule of practice which required the public prosecutor to call all witnesses in order to give the defendant an opportunity to cross-examine them. We do not think the rule here contended for is in accordance with sound rules of practice under the laws as they now exist in this state. Under modern criminal procedure the defendant has so many more privileges than he had at the time the rule here relied upon was established that the reason for the rule no longer exists. The defendant has the right to compel the attendance of his witnesses under our Constitution and statute; he has the right to have the aid of counsel, and when not financially able to employ counsel the. court must appoint counsel to defend him at public expense. Thus in effect, under the present criminal procedure, the defendant is practically placed on an equality with the state in preparing his defense. Not so at the time of the establishment .of the old English rule. While there are some states which yet follow the English practice, the trend of modern authority is to1 abandon the rule, and we think that sound reason supports such a course.

In State v. Brady, 124 La. 951, 50 South, 806, it was held: “The state is not bound to examine a witness in whom it has lost confidence.” Other decisions may be found to the same effect. In Bloom v. State, 95 Neb. 710, 146 N. W. 965, it is held: “It is not required that all the witnesses whose names are indorsed upon an information must be called at the trial.” See, also, People v. Johnson, 13 Cal. App. 776, 110 Pac. 965. And it has also been held not error to refuse to force the prosecution to call eyewitnesses to testify, since it cannot' be forced to call any particular witness. Lard v. State, 54 Tex. Cr. 570, 113 S. W. 762; See, also, State v. Hatfield, 65 Wash. 550, 118 Pac. 735, Ann. Cas. 1913B, 835; Willis v. People, 73 Colo. 369, 215 Pac. 854.

We reaeb the conclusion, therefore, since defendant may testify in his own behalf and compel the attendance of witnesses in his behalf by compulsory process, and is entitled to the aid of counsel at public expense if necessary, that the reason for the old English rule of practice requiring the public prosecutor to call all eyewitnesses to a transaction no longer exists, and that, there being no longer any reason for the rule, but, on the contrary, sound reason why the rule should not be followed, the refusal of the trial court to require the county attorney to call all eyewitnesses to the transaction and thereby vouch for them, was not error.

The next assignment of error is that the court erred in permitting the state to improperly impeach the defendant.

While the defendant was on the witness stand the county attorney asked him, “Did you have any whisky there that evening?” to which defendant replied, “I did not.” The defendant was also asked if he had not been drinking and if he was not intoxicated at the time of the killing. Defendant testified that he had not drank anything since early that morning and that he was not intoxicated at the time of the killing, and in rebuttal and as impeachment to this testimony a witness was permitted to testify that at the time of his arrest defendant was intoxicated, it having been shown that he was arrested within five minutes after the killing. The court also permitted the state to show by way of impeachment and to discredit all the defendant’s testimony on the subject of intoxication that a gallon of whisky was found in the defendant’s house the next morning after the killing. In this connection it was also shown that no one lived in the house with the defendant at that' time. In surrebuttal the defendant was permitted to testify that when he was arrested and immediately put in jail that evening after the killing his house was left open and the door unlocked. 'We think there was no reversible error in admitting this evidence.

Professor Wigmore says:

“Intoxication, as a mental condition of temporary stupefaction, may be evidenced circumstantially in the same general modes that are available for mental capacity or condition in general. (1) It may be evidenced by the person’s conduct. (2) It may be evidenced by predisposing circumstances ; i. e., by the drinking of intoxicative liquor. (3) It may be evidenced by his prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous.”

In Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271, it is held:

“In a homicide case, where the plea is self-defense, evidence as to whether accused was intoxicated or under the influence of intoxicating liquors at the time of the homicide is competent for the purpose of aiding the jury to determine whether or not the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life, or receiving great personal injury.”

Professor Wigmore also says that intoxication is admissible for purpose of impeachment. Section 933.

It is evident from the foregoing that in eases where self-defense is pleaded the intoxication of the defendant at the time of the killing may be shown for the purpuse of aiding the jury to determine whether the accused acted under the influence of a well-grounded and reasonable belief that he was in imminent danger of losing his life or receiving great personal injury. This evidence, therefore, was material in chief. If it was a material matter the defendant could be properly impeached, where he denied his intoxication, by evidence to the contrary, and the circumstance that whisky was found in Ms bouse tbe next morning after the Mlling was, under the surroundings of this ease, a proper matter for the jury to consider; and where defendant was permitted to deny the knowledge of any such whisky in his house, and where it. was shown that the house was left open during the night immediately following the killing, the only question remaining was one for the jury, involving the weight to be given to this circumstance.

Further, it is contended that the court also permitted other evidence to be introduced in rebuttal improperly.

The record discloses that the witness who testified to the matters here complained of was introduced in chief by the state, and after he had disclosed the things here complained of the defendant objected to his testimony and moved to strike it on the ground that his name had not been indorsed on the information or on the list of witnesses served upon the defendant two days before the ease was called for trial as required by the Constitution in capital cases. The trial court struck this witness’ testimony, and afterwards permitted the state to introduce the witness in rebuttal, the defendant having been theretofore interrogated covering the matters to wMch the witness subsequently testified in rebuttal.

If any error was committed, the court committed error in the first instance in striking from the consideration of the jury the testimony of this witness in behalf of the state given in chief. The objection interposed that the witness’ name had not been served upon defendant in compliance with the constitutional provision came too late. The service of a list of witnesses to be used in chief upon the defendant is a matter which the defendant can waive and which he does waive if no timely objection is interposed. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

In the Frisbee Case it was held that if in a capital case the person prosecuted fails to object before announcing ready for trial that the list of witnesses has not been served upon him, he cannot afterwards avail himself of this objection, and the constitutional right given to him by such provision will be waived. By analogy it follows that, where an incomplete list of witnesses is served upon him in compliance with the constitutional provision and the state at the trial calls a witness whose name is not indorsed upon such list, the appropriate time to object is at the time the witness is called; otherwise, the defendant, by his own conduct, has waived the objection.

In view of the fact that the testimony of the witness here objected to should have been received in chief, and, in view of the further fact that the matter complained of was material and a proper foundation laid for its reception in rebuttal, we find no error in the action of the court in this respect that would authorize a reversal of this judgment.

Further, it is contended that the trial court erred in not permitting a witness who was present at the time of the killing to express her opinion and conclusion that it appeared to her that the defendant was likely to be killed or to receive serious bodily injury at the hands of the deceased at the moment deceased was killed.

The record showing this assignment of error is as follows : '

“Q. From your position and from what you saw there and have testified heretofore about, in your opinion what did it look like and reasonably appear to you that Paris was going to.do to Pollock?
“Mr. Goldsberry: We object to that, your honor, as incompetent, irrelevant, and immaterial, calling for a conclusion of the witness and leading and suggestive of the answer.
“The Court: The objection will be sustained.
“Mr. Ward: We except to the ruling of the court. The following occurred out of the hearing of the jury.
“Mr. Ward: If permitted to do so, this witness will testify that from the acts and conduct and manner and advance upon the defendant by the deceased that she saw, that it reasonably appeared to her that the defendant was in danger of receiving serious bodily injury at the hands of the deceased, or being killed by the deceased.
“Mr. Goldsberry: To which offer the state objects for the reason it is incompetent, irrelevant, and immaterial, leading and suggestive of the answer and calling for a conclusion of the witness.
“The Court: Sustained.
“Mr. Ward: Exception.”

We pass this assignment of error without comment further than to say that, had the court permitted the witness to answer the question, it is apparent from the question itself that the answer necessarily would have involved an invasion of the province of the jury to determine for itself from the facts surrounding the transaction the reasonableness or unreasonableness of the defendant’s belief and of the defendant’s necessity to shoot at the time.

Certain objections are made to some of the trial court’s instructions. The instructions complained of are such as have heretofore been approved by this court in numerous decisions where the issue of self-defense was involved.

We have read the entire charge and carefully considered the same in connection with the evidence, and find the charge as a whole to correctly state the law of the case.. In fact, we consider the charge a model one, free from any prejudicial error.

The deceased and the defendant had for many years been friends. They were in the habit of daily associating with each other. The killing occurred in the dark at the defendant’s home. The deceased was not wearing a coat, and the defendant claims he shot him because he believed that the deceased at the time intended to kill him or to inflict some serious bodily injury upon him. The defendant does not claim to have seen any weapon of any kind in possession of the deceased at the time he shot him. Both parties evidently had been drinking. Corn whisky and choc beer played an important part in this apparently unnecessary tragedy. To hold that the defendant was justified under the circumstances would do violence to those well-known principles of law which point the way to one about to be attacked to avoid the necessity of taking human life, and especially to use no more force than is apparently necessary at the time.

For reasons stated, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    M. J. (DICK) NEWTON v. STATE.
    No. A-4016.
    Opinion Filed Aug. 14, 1923.
    Rehearing Denied Feb. 29, 1924.
    (223 Pac. 195.)
    (Syllabus.)
    1. Judges — Disqualifications—Mere Belief that Accused Guilty. The mere fact that a trial judge may believe that an accused person is guilty as charged will not operate as a disqualification.
    2. Intoxicating Liquors — Evidence Incidentally Obtained' on Seizure of Automobile Admissible. Where, as under the circumstances • here, an automobile in transit is discovered by peace officers used as an illegal conveyance of intoxicating liquor, and such automobile is seized and adjudged forfeited to the state, evidence incidentally obtained showing that the accused was violating the prohibitory law is admissible.

      3, Arrest — Arrest Without Warrant in Act of Committing Misdemeanor. Where an officer apprehended the defendant in the act of violating the law (committing a misdemeanor), the officer had a right to make the arrest without a warrant, and evidence incidentally obtained is admissible.
    Appeal from County Court, Jackson County; J. M. Williams, Judge.
    M. J. (Diek) Newton was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    S. B. Garrett, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

M. J. (Diek) Newton, plaintiff in error, here designated the defendant, was by information filed January 20, 1921, charged with being in the unlawful possession of intoxicating liquor on January 18, 1921. At the trial, April 30, 1921, by a verdict of the jury he was found guilty, with the punishment fixed at confinement in the county jail for a period of 180 days and a fine of $500. From the judgment on the verdict he appeals.

The defendant was a farmer, residing 12 or 15 miles from the city of Altus, the county seat of Jackson county. On the day of his arrest he drove from his farm to a place near a hotel in Altus in a one-seated Ford car. With him on this trip was a negro named Sam Watson. Defendant parked his car near the hotel and went away to some other part of town. A short time thereafter the sheriff, or,deputy sheriff, came along and arrested Sam Watson, who was sitting on a running board of the car, and upon searching the car found it to contain 3 gallons of whisky, carried in oil cans, and one quart bottle filled with whisky. In just a few minutes the defendant came along and was arrested by tbe officers and jointly charged with tbe negro with having unlawful possession of intoxicating liquor.

The sheriff testified that, after putting Newton and the negro in jail, he went to the place where the defendant resided, and found in the house a white woman, the wife of Jim Sherill, three negro men, and one negro woman; that in a dugout he found a still in operation, with a liberal supply of wood under it, and the fire burning. He also found three 50-gallon kegs full of mash and all the paraphernalia necessary to manufacture whisky. On the trial of the case the negro turned state’s evidence, and testified to the making and selling of whisky by defendant, his testimony being corroborated by the circumstances above related.

The defendant makes numerous assignments of error, only two of which are discussed in his brief. First the defendant contends that error was committed by the failure and refusal of the county judge to disqualify as trial judge. To support the claim that the judge was disqualified defendant filed an affidavit before the trial commenced, which is as follows:

“Comes now M. J. (Dick) Newton, the defendant in the above styled and numbered case, and says that Hon. J. M. Williams, county judge of Jackson county, Okla., and before whom the above styled cause is pending, has bias and prejudice in said cause, and that on account of said bias and prejudice of the said Hon. J. M. Williams, the defendant cannot have a fair and impartial trial of this cause before the said Hon. J. M. Williams, the court having tried cause No. 588, State of Oklahoma v. A Ford Car, in which it was alleged that the car was the property of this defendant, the facts and witnesses being largely the same, and this court, having held adversely to this defendant in that case, now has his mind made up against this defendant, wherefore the defendant asks that he be granted a change of judge for the trial of this ca,use.”

Under the previous holdings of this court the mere fact that a trial judge may believe that an accused person is guilty as charged will not operate as a disqualification. Such fact will not so operate either at common law or by-virtue of our statutes, section 2630, Comp. Stat. 1921. State v. Lockridge, 6 Okla. Cr. 216, 118 Pac. 152, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251; Ingles v. McMillan, 5 Okla. Cr. 130, 113 Pac. 998, 45 L. R. A. (N. S.) 511; Powers v. Cook, 48 Okla. 43, 149 Pac. 1121, L. R. A. 1915F, 766.

It is next urged that the oil cans and the quart bottle containing whisky taken from defendant’s car without a search warrant were illegally obtained,, and that under such circumstances neither the whisky nor the containers could be properly introduced .as evidence against the defendant. In this connection the evidence shows that the officers seized this automobile, which was forfeited to the state under the provisions of sections 7023 and 7024, Comp. Stat. 1921. These sections of our statutes are analogous to our National Prohibition Act (41 Stat. 305-3Í5) on the same subject. Likewise the inhibitions contained in our federal and state Constitutions against unlawful searches and seizures are almost identical. Now the federal courts have held, in substance, that an automobile used illegally to transport intoxicating liquor is an inanimate “outlaw.” The moment the owner uses it for such purpose it becomes forfeit to the United States. The judgment of forfeiture, afterwards made, relates back to the time it was first used for such illegal purpose. The illegal use of the car, and not its seizure, operates to bring about the forfeiture. We assume that the same rule will apply in a forfeiture to the state. If that be true, the property of the defendant in this case was not seized or searched. It was the property of the state, and the motion of the defendant to exclude the evidence so procured was for that reason properly overruled. If this deduction be not correct, the objection was properly overruled for another reason.

When apprehended by the officer the defendant was in the act of violating the law (committing a misdemeanor), and the officer had a right to make the arrest without a warrant, and evidence obtained incidentally to such arrest would be admissible. These conclusions are well illustrated in the ease of United States v. Fenton (D. C.) 268 Fed. 221, from which we quote at length:

“Defendants were convicted of unlawfully transporting in an auto, some 130 quarts of whisky, the auto and whisky were adjudged forfeited to the United States, and defendants move for a new trial upon the ground that their arrest and the seizure of the whisky and car were without process, in violation of the Fourth and Fifth Amendments, and unlawful; that the evidence at the trial was the whisky and the testimony of the delinquent officers; and that defendants preserved their rights by motion before trial (heard at trial and decision reserved) for return of the whisky and auto.
“From the evidence it appears that the arrest and seizure were about 75 miles south of the boundary line; that the officers had heard that several unnamed persons and •autos were that night coming with whisky smuggled from Canada; that to capture them they located themselves 20 yards apart along the road; that about 3:30 a. m. defendants’ auto slowly approached from the north; that the officer nearest turned a flash light upon them, and ordered them to halt, which they refused to do; that so likewise ordered the second and the third officer, as defendants reached and passed them; that when the auto was a length or so past the first officer he fired to puncture the tires; that when about ten feet past the third officer he overtook it, mounted the running board, and was ordered off by defendants with gun display; that the officers, with display of weapons, forced the defendants to stop, arrested them, searched, found the whisky, some of which was visible before search, in part of Canadian brand, and seized auto and whisky.
‘'Defendants were taken in commission of a misdemeanor, if not of a felony. Whether or not, in the circumstances of the time, place, common knowledge of whisky running, information of the officers, and the incidents of the arrest, the misdemeanor was committed ‘in the presence’ of the officers (see In re Morrill [C. C.] 35 Fed. 267, and 5 Corp. Jur. 416), whether or not defendants were subject to arrest without process as at common law, as night walkers or prowlers reasonably subject to suspicion, whether or not the officers had' reasonable grounds to believe defendants had committed a felony, whether or not the arrest and search are lawful, or either or both amendments violated, defendants’ motions must be denied.
“An unlawful' arrest of an offender does not work a pardon in his behalf, and seizure without process and by force of government property, of which it is entitled to immediate possession, does not entitle the offender to a return of the property, nor to exclusion of its use in evidence against him. The auto and whisky, by virtue of the National Prohibition Act (41 Stat. 305), were forfeited, and thereby transferred to the United States, the moment defendants embarked upon the unlawful transportation. * # * Silverthorne’s Case, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319, and cases therein cited, apply to search and seizure of the offender’s papers and property and use thereof in evidence, and not to those of others, of which the offender had unlawful possession. The first violates both amendments; the second, neither, so far as the return of the seized articles and their exclusion as evidence are concerned.”

Deciding, as we do, that this evidence so procured was admissible because it was obtained while making an arrest of persons then engaged in the commission of a misdemeanor, although without a warrant, it will not be necessary to exhaustively review the authorities holding that evidence procured through an illegal search and seizure would not be admissible. Upon the question the authorities are in sharp conflict. This court has held that testimony illegally obtained is admissible, while the United States courts almost uniformly hold that it is not. But as to whether or not this court will recede from its former holdings on that subject will be reserved for future determination in some ease where that question is necessárily involved.

Recent decisions of the Supreme Court of the United States concerning the use of evidence procured by an illegal search or seizure are Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Burdeau v. McDonald, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159; annotations to 13 A. L. R. 1168.

The judgment of the trial court is affirmed.

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


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    CHARLES KEITH et al. v. STATE.
    No. A-4360.
    Opinion Filed Jan. 29, 1924.
    Rehearing Denied Feb. 29, 1924.
    (223 Pac. 191.)
    (Syllabus.)
    1. Appeal and Error — Verdict not Disturbed Where Testimony to Support. Where there is testimony in the record clearly tending to support the verdict, it will not be disturbed on appeal on the ground of insufficiency of the evidence.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Sale. Evidence held to sustain the conviction for selling intoxicating liquor.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Charles Keith and another were convicted of the unlawful sale of intoxicating liquor, and they appeal.
    Affirmed.

      Babcock & Trevathan, for plaintiffs in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges the defendants, Charles Keith and Jesse Robinson, with selling intoxicating liquors, to wit, corn whisky, to one John Ran-spot. Upon the trial they were found guilty, and their punishment fixed at confinement for six months in the county jail and a fine of $500 each. From the judgment rendered in pursuance of the verdict, they appeal.

The evidence shows or tends to show the following facts:

John Ranspot, an employee of the John J. Grier Company, operating a news and novelty stand in the Rock Island Depot at El Reno, made arrangements with a man whom he testifies is unknown to him to purchase a half gallon of whisky for $7.50. He told this man he had a suit case at his stand in the depot, and to send for it, and deliver the whisky to him in that way. Shortly after defendant Robinson, a taxi driver, came to him, and he gave him the suit case and $7.50 to carry to the man that sent him. In about 30 minutes defendant Robinson came back, and Ranspot went out and got the suit case, and set it inside the stand. Mr. Bannister and another man came in and wanted the suit case, and Ranspot demanded a search warrant. Then John Burnett, chief special agent of the Rock Island, took and opened the suit case, and found a half gallon of corn whisky in it, which he turned over to the officers.

E. E. Milam testified:

“I live at El Reno; wire chief of the Rock Island; have known defendants at least five years; saw both defendants and John Ranspot near the Rock Island depot on the night of the 9th of June last year. I saw defendant Robinson motion to defendant Keith to come out of the Southern Hotel; Keith came out, and they had a conversation. I heard Robinson say, ‘Well, I will go and get the car and meet you at the corner of the Southern Pharmacy.’ After the conversation Robinson went over to the depot and returned with the car. Keith got in the car at the corner. Mr. Whitlock was waiting around the corner, and I went and got in his car, and we followed Robinson’s car. They went down Wade street, turned north on Evans, then turned on Choctaw, and then went down to Keith’s house, where both got out of the ear. We turned east, and came to the police station, and told Gibson and Bannister to wait for them at the Rock Island depot. We parked the car there. In about ten minutes I saw Keith walking up the sidewalk and Robinson headed for the depot. When he stopped the car Robinson reached back and picked up a suit case and handed it to Ranspot, who took it into the Rock Island Depot, putting it behind the counter. I told them to tell Mr. Burnett, chief agent of the Rock Island. Mr. Burnett opened the grip, and found a half gallon of whisky. I tasted it, and it was a poor grade of com whisky.”

The testimony of Carl Whitlock is substantially the same as that of the witness Milam.

H. E. Bannister testified that he went to the depot and waited for defendants to come back with the whisky; that he saw the ear coming up the street, and while it was running Keith jumped off near the Southern Hotel. Witness followed the car, and saw Robinson take the grip out and carry it to the door of the depot, and there hand it to Ranspot.

At the close of the state’s testimony defendants moved the court to exclude and withdraw from the consideration of the jury the whisky and all evidence with reference to the search and seizure of the same in the Grier News Stand, which the court refused to do.

The defendants offered no evidence, and moved for an acquittal on the ground that the evidence was insufficient to warrant a conviction, which motion was overruled. Exceptions reserved.

It is urged by counsel for defendants that a conviction was not authorized, because the whisky seized and introduced in evidence was obtained without a search warrant. The evidence shows that the suit case containing the whisky in question was not in the possession of the defendants when it was taken from witness. Ranspot by the Rock Island agent, Burnett; hence the contention is without merit.

It is also contended that the evidence is insufficient to sustain the conviction. It is well settled that this court will not reverse the judgment of the trial court upon the ground that the evidence is insufficient to sustain the verdict when there is substantial evidence tending to support the verdict of the jury.

In our opinion the evidence is abundantly sufficient to warrant the verdict of the jury, and it should be approved.

¥e find no error committed on the trial. The judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    F. J. McCAFFERTY v. STATE.
    No. A-4401.
    Opinion Filed Dec. 29, 1923.
    Rehearing Denied Feb. 29, 1924.
    (223 Pac. 208.)
    (Syllabus.)
    Appeal and Error — Affirmance—Failure to File Brief or Make Argument. Where no appearance is made to orally argue the cause when same is finally submitted and no brief is filed. in behalf of plaintiff in error, the court will examine the record proper, and, .if no prejudicial error appears therefrom, the judgment will be affirmed.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    F. J. McCafferty was convicted of maintaining a liquor nuisance, and he appeals.
    Affirmed and remanded, with directions.
    Orban C. Patterson, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction for maintaining a liquor nuisance on premises located in Oklahoma county, Okla., more particularly described as the southeast quarter of section 18, township 13, range 1 west. Judgment was rendered on March 13, 1922, and punishment fixed at a fine of $500 and six months’ imprisonment in the county jail. Petition in. error and case-made were filed in this court on July 8, 1922. The cause was finally submitted on the record on November 8, 1923.

No appearance was made by counsel representing plaintiff in error to orally argue the cause at the time same was submitted, nor has any brief been filed in his behalf. An examination of the record discloses no prejudicial error, and the cause is therefore affirmed under rule 9 of this court.

Judgment affirmed, and cause remanded to the county court of Oklahoma county, with directions to carry the judgment into effect.

BESSEY and DOYLE, JJ., concur.


text:
    CHARLES HOOPER et al. v. STATE.
    No. A-4123.
    Opinion Filed March 31, 1923.
    Rehearing Denied Feb. 29, 1924.
    (223 Pac. 209.)
    (Syllabus.)
    1. Trial — Instructions — Sufficiency as a Whole — Consistency. While the instructions are to be considered as a whole, nevertheless instructions upon a material issue must be reconcilable. It is proper for the trial court to supplement one instruction which does not fully state the law applicable to the issues by other instruction consistent with it, and, if the instructions fully state the law applicable to the facts and are not contradictory, one of the other, then no reversible error is occasioned, although one instruction may be of itself incomplete.
    2. Same — Self-Contradictory Instructions on Material Issue not Harmonized on Appeal. Self-contradictory instructions on a material issue cannot be harmonized, and this court cannot determine whether the jury followed the correct instruction on the subject or was misled by the incorrect instruction.
    3. Same — Specific Instruction, Requiring Defendant to Prove Defense Beyond Reasonable Doubt, Erroneous. A specific instruction, which requires the defendant to prove the material elements of his defense beyond a reasonable doubt, is erroneous and prejudicial, and is not cured by a general instruction that the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt.
    Appeal from County Court, Cleveland County; George Allen, Judge.
    Charles Hooper and another were convicted • for the .unlawful manufacture of intoxicating liquors, and. they appeal.
    Reversed and remanded.

      Ben F. Williams and John E. Luttrell, for plaintiffs in error.
    The Attorney General, and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction, rendered in the county court of Cleveland county, wherein the plaintiffs in error were jointly informed against and tried for the unlawful manufacture of intoxicating liquors, and their punishment fixed at a fine of $100 each and confinement for a period of 60 days in the county jail each.

The Attorney General has filed a confession of error, based upon the giving of instruction No. 1, which reads as follows:

“You are instructed that it is unlawful to manufacture intoxicating liquor containing more than one-half of one per cent, of alcohol measured by volume ¿and that the law of this state takes judicial notice of the fact that whisky contains more than one-half of one per cent, of alcohol measured by volume, and that the same is intoxicating, and before you can return a verdict of not guilty you must be convinced by the evidence beyond a reasonable doubt that the defendants did not manufacture whisky in Cleveland county on or about the 24th day of March, 1921, or within three years of the filing of the information herein. Defendants except to above instruction. George Allen, Judge. ’ ’

To the giving of the foregoing instruction in the trial court, proper objection was lodged and exception taken by plaintiffs in error, and the Attorney General confesses error,, on the ground that the instruction placed the burden upon these plaintiffs in error to establish beyond a reason-of said instruction was that the plaintiffs in error were not able doubt their innocence, and that the result of the giving accorded a fair and impartial trial.

It is the opinion of this court that the confession of error of the Attorney General is well founded in law. While the record before us shows that, in a separate paragraph in the charge to the jury, the trial court instructed to the effect that it was incumbent upon the state to prove the guilt of the defendants beyond a reasonable doubt, such instruction is clearly contradictory to instruction No. 1, heretofore quoted, and the two instructions cannot be reconciled.

While the instructions are to be considered as a whole, and if, when so construed, they correctly state the law the instructions are sufficient, nevertheless instructions upon material issues must be reconcilable. It is proper for the trial court to supplement one instruction which does not fully state the law • applicable to- the issues by another instruction consistent with it, and if the two together fully state the law applicable to the facts and are not contradictory, one of the other, then no reversible error is occasioned, although one instruction may be of itself incomplete; but self-contradictory instructions on material issues cannot be harmonized, and this court would then be unable to determine whether the jury followed the correct instruction on the subject or was misled by the incorrect instruction.

The instruction here complained of required the defendants to prove beyond a reasonable doubt that they did not manufacture the whisky as alleged in the information. The only "burden resting upon the defendants, provided the state established a case against them, was to raise a reasonable doubt that they did manufacture the whisky as alleged. Instruction No. 1, therefore, is so clearly and palpably inconsistent with the instruction that the state must prove the guilt of the defendants beyond a reasonable doubt, that the two cannot be reconciled, and the instructions as a whole, therefore, cannot be said to correctly state the law of the ease. Davis v. State, 4 Okla. Cr. 508, 113 Pac. 222; Brown v. State, 14 Okla. Cr. 115, 167 Pac. 762.

For reasons stated, the confession of error of the Attorney General is concurred with, and the judgment as to each of the plaintiffs in error is reversed, and the cause remanded to the county court of Cleveland county, with instructions to grant the plaintiffs in error a new trial.