text:
    JEFF POLING v. STATE.
    No. A-2206.
    Opinion Filed October 4, 1915.
    (151 Pac. 895.)
    1. HOMICIDE — Evidence'—Sufficiency. In a prosecution for murder, the evidence reviewed and held sufficient to sustain the conviction with imprisonment for life as the punishment.
    2. HOMICIDE — -Evidence—Dying Declarations. The rule is universal that before dying declarations can be admitted in evidence it must appear that they were made under a sense of impending death, but it is not essential that the declarant state that they are so made, sit 'is sufficient if it satisfacorily appears in any manner that they were made under that sanction.
    3. HOMICIDE — Dying Declarations. Dying declarations may be made by signs as well as by words, and where the declarant is in a dying condition, and so injured as to be unable to speak, the fact that in response to questions her answers were indicated by nodding and shaking her head, and pointing her finger, forms no objection to the competency and admissibility of such declarations.
    4. EVIDENCE — Res Gestae. Declarations by a person whose throat was cut, and windpipe severed, and therefore speechless, made by signs in the presence of the defendant a few minutes after the wound was inflicted under circumstances that excluded the presumption that they were the result of premeditation and design are admissible as a part of the res gestae.
    5. REVIEW — Instructions. Instructions given by the court and not excepted to by the defendant at the trial or before the trial court, will not he reviewed on appeal, unless fundamental error is apparent.
    6. MISCONDUCT OF JURY. The mere fact that in response to an inquiry of the court as to how the jury stood numerically, the foreman answered: “Bight for conviction and Four — •” is no ground for a new trial, where it does not appear that the defendant was prejudiced by such misconduct.

      Appeal from District Court, Washington County; R. H. Hudson, Judge.

    Jeff Poling was convicted of murder, and appeals.
    Affirmed.

      Harry E. Price, for plaintiff in error.

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

The plaintiff in error, Jeff Poling, was convicted of the murder of his wife and in pursuance of the verdict of the jury, he was sentenced to imprisonment in the penitentiary for life, at hard labor. From the judgment, he appeals.

We shall first consider the assignment of error that the evidence was insufficient to sustain the verdict. As this is the only substantial question raised on this appeal, we will state the evidence in some detail. It appears that the defendant, Jeff Poling, and the deceased, Sarah Poling, sometimes called ‘'Emma,” had been married about sixteen years. Their home was in Bartlesville, on West Third street, being that part of the city that is commonly known as Smeltertown. The west half of the building was used for a restaurant; the„ east half, used as a living room, had a front door on the north and a side door on the east. It further appears that they had some family trouble, and about a week before the tragedy, Mrs. Poling had left home ■ and was living with her step-son on the same street. On July 11, 1913, about ten o’clock in the forenoon, the defendant was standing in front of his restaurant, talking with some other men; the deceased was walking along on the other side of the street, and he called to her to come over to the house, and she crossed the street, and after talking a few minutes they went into the living room, through the east door. Soon after, the deceased rushed out with her throat cut from ear to ear. She was helped back into the house and placed on a bed.

Dr. Smith testified that he was passing nearby and was called to attend Mrs. Poling, and found two or three persons holding her in a sitting position on the bed; that he found the muscles of the neck and both arteries and veins severed, and the trachea or windpipe was completely severed; that it was a straight cut, and it appeared that the instrument used came out on the right side of the neck.

Ralph Berry testified that he had known the Polings several years; that their place was next door to his place, with an alley-way of seven or eight feet between; that about fourteen feet back, there was a door on the east side of the Poling building; that about half-past ten that morning, he had stepped out of his place and was sitting between the buildings, and heard the defendant call to the deceased, who was across the street, and she came across and they all talked for a few minutes. Poling said: “Ralph, she won’t live with me any more; she don’t care nothing for me,” and I said to him: “I don’t think it is that, Jeff; she thinks enough of you, but just can’t put up with your ways,” and she said a word or two, and said that he had been threatening to kill himself; they then entered their home through the east door; that three or four minutes later, he heard a struggle or scuffle inside, and the defendant opened the door and called him, saying that his wife had cut her throat. Just then she came out the door and walked to the sidewalk. Witness called Mrs. Ida Grose; that he tried to open the front door and found it locked; he then ran in the side door and opened it from the inside, and they carried her in the front door, and he left to call a doctor.

Ernest Clarady testified that he was a deputy constable,' and was standing on the street when Mrs. Poling came out, and heard Poling say that his wife had cut her throat; that he took her left arm and the defendant took her right arm, and they helped her into the house and placed her on the side of the bed; that Mrs. Grose was present. His further testimony, as shown by the transcript, is as follows: •

“Q. Did you hear any conversation between Mrs. Grose and Mrs. Poling?
“Mr. Price: Objected to as incompetent and immaterial, and no foundation laid for a dying declaration.
“Mr. Donahue: The defendant was there, present, if the court please.
“The Court: You had better ask him; he has not testified he was there.
“Q. Did you hear any conversation between Mrs. Grose and Mrs. Poling in the presence of the defendant there? A. Yes, sir.
“Q. You may state what that conversation was? A. Mrs. Grose asked the woman if she did it; of course, she could not say anything, and I didn’t look at her myself only when I would talk to her myself. I asked her twice if she did it, and she shook her head that way (indicating).
“Q. She shook her head up and down, or from side to side, which ? A. Side to side.
“Q. Did you have any conversation with the deceased, Sarah Poling, in the presence of the defendant, Jeff Poling? A. Yes, sir.
“Q. Just tell what that conversation was ? A. I never asked her anything only if she done that herself. .
“Q. What did you say to her? Just tell the jury now your exact words as near as you can — what she said in reply and what she did? A. I says ‘Rady, did you do this yourself?,’ and she shook her head, that way. I asked her the question twice.
“Q. Was she sitting up or lying down when you asked her the question? A. She was sitting up.”

He further testified that when he went in, he saw the razor lying on the floor, and that it had blood on it.

E. V. Anthony testified that he lived at Smelterfrown, and about eleven o’clock that morning saw Jeff and Mrs. Poling, and Mr. Berry sitting between. their buildings; that he went into Berry’s place, staying there ten or fifteen minutes and when he came out the side door was open and he saw Jeff Poling and Mrs. Poling sitting on their bed, and Jeff Poling rose up and closed the door. Mr. Berry was sitting in the alley, and he sat down and was talking with him, when he heard a scuffle or struggle in the east room of the Poling place and Jeff Poling opened the door and called to Mr. Berry that his wife had cut her throat, and Mrs. Poling stepped out the door and walked out in front and Jeff followed her.

Cy Smith testified that he was in a shoe shop, about fifty or sixty yards east of Poling’s restaurant that morning between nine and ten o’clock, and John Ebbs and Jeff Poling were there at that time. Poling was sitting in the door with his feet on the outside and Ebbs and witness were on the inside. While they were talking, Mrs. Poling went by, crossing the street, and the defendant said she was going over to telephone for a job. He further testified:

“Q. What else did he say? A. Well, he said she was going to telephone for a job and if she got- a job, he was going to tell them it was his wife and if they gave her work he would kill them; that was all he said there, and when she came out from there, she went up between my son’s house and the next house, and he said she was going up to his brother’s, and said he was going to have a talk with her and he left.
“Q. Did you see him or her, later that morning? A. Yes, sir.
“Q. Well, what was it, if anything, that attracted your attention to them? A. Well, I-was sitting in about the same place' and I looked out and seen someone crossing the street, and I heard him holler and I went on up.
“Q. Did you hear what he said ? A. He called Arthur, his son.
“Q. Then what did you do? A. I went up there.
“Q. And when you got up there, what did you find? A. When I got up there, they had her in the house and she was sitting on the bed.
“Q. Who else, if anyone, were present at that time? A. I don’t know hardly; I saw Art Poling in there. There was several in there.
“Q. Do you know Mrs. Grose? A. Yes, sir.
“Q. Did you see her there at that time ? A, Yes, sir.
“Q. Did you have any conversation with Mrs. Poling there ? A. I did, on the inside.
“Q. Just state what that conversation was? (No answer).
“Q. Was the defendant present? A. Yes, sir.
“Q. Just state what that conversation was? A. Well, I heard some woman ask — at least I took it to be a woman — if she cut her throat, and I looked at her when they asked her that, and she shook her head ‘no.’ ”

John Ebbs testified that he was sitting with Cy Smith and Jeff Poling at the shoe shop when Mrs. Poling passed, and the defendant said something about her going to get a job of some kind up town, and “He said that was his wife, and he didn’t want her to work for no one, and he would not allow her to work for no one; and he said he would not allow no man to employ her; that he would give him trouble.” And “I believe he said he was going to have a talk with her that morning or that afternoon.”

Thelma Jones testified that she worked for the Polings in their restaurant about three weeks, but had quit work about two weeks before Mrs. Poling’s death; that the Polings quarreled and had trouble, and in one of their quarrels she heard the defendant say to Mrs. Poling “You keep on until I will have to kill you.”

Mrs. Ida Grose testified that she lived in West Bartlesville, just across the street from the Polings, and heard Mr. Poling hollow, and went over there. That Mr. Clarady and Arthur Poling were in there, and that she had a conversation with' Mrs. Poling. She further testified as follows:

“Q. What was this conversation about that you had with her ? A. I asked her if she done it — did it; asked her if she done that.
“Q. Mrs. Grose, just state to the jury what you said to her and what she said or did in answer to your question? A. Well, I asked her if she done it; I put my hand on her shoulder, and I says ‘Emma, did you do this?’ and she raised her eyes to mine and shook her head, and I said ‘Who did do it ?’
“Q. Just state as nearly as you can recollect the exact language that was used, both by you, and what she did? A. I said ‘Emma, did you do this?’ and she shook her head that she didn’t, and I said ‘Who did do it ?’ and she turned her head towards Mr. Poling and pointed her finger like that, and I says ‘Emma, did de do it?’ and she nods her head that he did.
“Q. Where was she at the time this conversation took place ? A. She was sitting on the foot of the bed.
“Q. Wes she sitting up or lying down? A. Sitting up.
“Q. Where Was Jeff Poling with reference to her ? A. He was at the foot of the bed.
“Q. You say she turned and pointed to him? A. Yes, sir, she turned her head and pointed to Mr. Poling.
“Q. Did she turn and point her finger directly at the defendant, Jeff Poling? A. She did.
“Q. Did she appear to understand your question ? A. She did.
“Q. Did she appear to be conscious and understand what you said? A. Yes, sir.
“Q. Is that all of the conversation ? A. That is all of the conversation.
“Q. Did she sit up after she had pointed to her husband and said he did it — did she remain sitting? A. Yes, sir, she was sitting.”

For the defense, Arthur Poling testified that he was the defendant’s son, and the deceased was his stepmother; that he lived in the same block, and hearing that something was happening at his father’s, he ran that way; that Mrs. Grose followed him into’ the room; that when he went in, he asked the deceased if she did this, but noticed before he asked the question that her head was moving from side to side; that he also asked her if his father did it, and her head continued to move in the same direction.

Testifying in his own behalf, the defendant stated that “My wife killed herself.” He was then 'asked:

“Q. Well, now just tell what took place? A. Well, my wife was sitting on the bed. I and my wife was talking to Mr. Berry. She was not staying at home. She was staying at my son’s house, and she come over and set outside and talked a little bit, and then we went inside, and I told her I was going to start business again and she says, I don’t want you to run that business. Well then, I says, I will have to go> to work. Yes, she says, you will have to go to work if you live with me, and she says, I don’t think I will live with anybody. Oh, I says, you are just a joking and I am going to get ready and go to town, I will quarrel with you some other time about this, and I went to the dresser drawer and got my razor and told her I was going to shave, and she would keep quarreling, and I says I would rather be dead than alive, I have a notion to take this razor and cut my head off, and I started to the kitchen to make my lather, and she says, you sit down on the bed by the side of me, and I set down. I had the razor in my left hand, shut up. She says, you go and make the lather and I will shave you. I thought she was in a good humor, and she lay across the bed and cut her throat. I was sitting this way, and I looked back and seen she had cut her throat, and I run out the north door some ten or twelve feet and stopped, she followed and put her hands on the door this way, and stepped out something like that. I had hollered for help three or four' times, and by that time Mr. Berry come out of his house and this Mr. Clarady was coming. Berry says Poling take Mrs. Poling in the house, and we took her in the house and set her on thq bed, and my son came in next and the razor was laying down some three or four feet away from the bed, aside from the bed, and he picked that razor up and I says don’t let them get away with the razor, or throw it away or something, I don’t know what I did say. I says keep that razor. I don’t know what happened after that; they took me to the front end of the house and set me down until I could come to myself. Well I had got up off the chair and laid down on the cot, and the next I recollect there was a man coming to me, he told me it was the county attorney, and wanted to know how she had killed herself, and I said I had given'her the razor, and they arrested me and brought me down and locked me up. She has often threatened herself, some four or five different times; threatened to kill herself at Pittsburgh; threatened to kill herself at Caney. It seems like every time she said that, nobody was around.
“The Court: Never mind. You had better wait until your counsel asks the questions. He is asking now about the occurrences on that morning. Proceed Mr. Price.
“Q. Were you living with your wife at that time? A. No, sir.
“Q. Did you see Mrs. Grose there that day? A. Yes, sir.
“Q. Where were you when she was talking to your wife? A. I was standing by the foot of the bed.
“Q. Did your wife point her finger at you? A. No, sir.
“Q. At any time? A. No, sir.
“Q. How long after Mrs. Grose left was it that your wife died? A. Well, she died pretty near immediately after we set her on the bed, a couple of minutes, I guess.
“Q. Mrs. Grose was there when they set her on the bed? A. No, sir.
“Q. When did Mrs. Grose get there? A. She came there after we set her on the bed.
“Q. She came after you set her on the bed? A. Yes, sir.
“Q. How long did she sit on the bed? A. Before she died ?
“Q. Yes? A. I expect"two or three minutes.
■ “Q. Yes, and how long was it afterwards that Mrs. Grose came in, after you set her on the bed? A. Well, she come in right away after we set her down on the bed.
“Q. What — how was your wife acting, what was she doing when she was sitting on the bed?” A. After this happened?
“Q. Yes? A. Why, she was sitting in this kind of a manner, with her head swung down this way.
“Q. And kept turning her head? A. Yes, sir, in this manner (indicating).
“Q. What were you doing with the razor? A. I was going to shave.
“Q. Why didn’t you? A. Why didn’t I shave?
“Q. Yes. A. Why, she said, ‘Give me the razor.’
“Q. With which hand did she cut her throat? A. This hand (indicating right).
“Q. How did she do it? A. I could not say; I did not see her make the lick; she had the razor in this hand; she reached over and took the razor out of my left hand, and dropped it by the side of her and I looked around that way, and she lay back on the bed.”

We think we have stated substantially all the material evidence, and stated it as favorable to the defendant as possible. While the evidence in the case may not be regarded as conclusive, the case was clearly for the jury, and it does not appear that the jury were influenced by considerations other than the evidence. Considering the character of the relations existing between the defendant, and his wife, evidence of which was properly admitted, and considering the statements which the witnesses for the state testify were made by the defendant in their presence, almost immediately before the tragedy, and considering especially the fact that his wife had left him and had avoided him for several days, and that the defendant had called her from the street, and considering his conduct at the time, and the fact that he expressed no sorrow or regret, it is obvious that the verdict of the jury is supported by the evidence. The credibility of witnesses and the weight to be given their testimony are matters for the determination of the jury, and in weighing the evidence the jurors 'must be satisfied beyond a reasonable doubt that it establishes the guilt of the defendant. Evidently the defendant’s account of the tragedy did not raise in the minds of the jury a reasonable doubt of his guilt.

Counsel for plaintiff in error contends that “The dying declarations of the deceased were not admissible, for the reason that no sufficient foundation had been laid; that it did not appear that they were made under the sense of impending death; that if she did know or think she was going to die, her actions could have been construed in several different ways; that the deceased could have spoken if she had the inclination or mind to do so; that if she wás mentally incapable of speech, she was incapable of nodding or shaking her head or pointing her finger with any degree of intelligence.”

The rule is universal that before dying declarations can be admitted in evidence it must appear that they were made under a sense of impending death, but it is not necessary that the person making them state at the time that they are so made, as that fact may be proved, not only by what the declarant said, but by his condition, by the nature and extent of his wounds, or from his conduct or other circumstances of the'case.

Mr. Greenlean says, section 158:

“It it enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proven by the express language of the declarant, or be inferred from his evident danger.”

The rule is stated by this court in Morris v. State, 6th Okla. Cr. 29, and followed in Addington v. State, 8th Okla. Cr. 703, 130 Pac. 311, as follows:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be' proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said, or where, from the nature and extent of his injuries, it is evident that he ■must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declarations and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted ' to in order to ascertain the state of declarant’s mind.”

The deceased only lived a few minutes after the wounds were inflicted and was dying when the declarations were made. It appears that she still retained the mental qualifications to realize her condition and to comprehend the questions asked, and the purpose and effect of her answers. Pier wind-pipe was entirely severed, consequently she was speechless. The fact that the deceased could not speak, and that in response to questions her answers were conveyed by nodding and shaking her head, and pointing her finger, forms no objection to the admissibility of the declarations, and the declarations, although communicated by signs instead of words, were competent, and the foundation for the admission of the same was sufficient under the authorities.

It would seem however, that these declarations were admitted by the court and very properly so, as a part of the res gestae. Evidently they were made at a time and place' and under circumstances which effectually excluded the presumption that they were the result of premeditation and design and were therefore admissible as a part of the res gestae. Tried by either of these tests the declarations were competent and admissible. It also appears that the defendant was present and no denial was made by him at the time, and one at least of the declarations was admissible upon the theory that it was a direct accusation of the commission of the crime made by the deceased in his presence, and his failure to deny or to explain such accusation at the time was in the nature of an admission against interest.

It is also urged that the court erred in defining a reasonable doubt. There was no specific or general objection made, or exception taken to any of the instructions given by the court. We cannot consider questions relating to instructions that were not raised as authorized by the statute, or by the practice of the courts, because if there was error, it was in effect waived. How- • ever, owing to the gravity of the crime charged we have carefully examined the instructions and find that they are remarkably free from error and are as favorable to the defendant as he had any right to demand or expect.

The remaining assignment is in respect to alleged misconduct of the jury. It appears from the record that while the jury were deliberating upon their verdict they were returned into court and the following proceedings were had:

“The Court-: Without stating which way you stand for conviction or acquittal, just state in numbers how do you stand? A. Eight for conviction and four—
“The Court: I am not asking you to state how you stand for conviction or acquittal, just how you stand in number is what I want to know? A. Eight to four.”

Thereupon the court directed the jury to retire in charge of the bailiff for further deliberation.

Counsel contend that the first answer of the juror in response to the inquiry of the court was in violation of that part of section 5005 Rev. Raws, providing that:

“The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they are agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.”

In that this provision applies to any member of the jury as well as the officer having them in charge.

The contention made is without merit. Evidently the answer of the juror was a mere inadvertance, and the statute quoted could have no application whatever. To constitute error it must, appear that the defendant was prejudiced by the answer of the juror, or that the action of the court was such as would tend to coerce the jury in arriving at a verdict. The defendant and his counsel were present at the time. No objection was made or exception taken to the proceedings had, and it is not claimed that the court said anything that in any way would tend tO' influence the jury to return the verdict that was rendered.

A careful examination of the whole case and giving due weight to every consideration urged by counsel for the defendant, satisfies our minds that the plaintiff in error was fairly tried and properly convicted.

The judgment appealed from is therefore affirmed.

FURMAN and ARMSTRONG, JJ„ concur. '


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ALLEN WILLIAMS v. STATE.
    No. A-2305.
    Opinion Filed October 2, 1915.
    (151 Pac. 900.)
    1. INSTRUCTIONS ON MANSLAUGHTER — Evidence. In a prosecution for' murder, where the evidence for the state tends to support the judgment and there is no evidence tending to support the lower degrees of the crime, hut the evidence of the defendant tends to prove excusable homicide on the ground of accident ' without negligence or fault on his part, it is not necessary for the court to instruct the jury upon the law of manslaughter in either degree.
    2. INSTRUCTIONS — Request. If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our code of criminal procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the ease, when he has not requested such instructions.
    3. APPEAL — Verdict—'Evidence. Where, after an examination of the entire record it appears that the defendant has had a fair and impartial trial, and that no material error has been committed by the trial court, and the verdict seems to be amply sustained by the evidence, this court will not disturb the verdict or judgment of the trial court.
    (Syllabus by the Court.)

      Appeal from District Court, Creek County; Chas. B. Wilson, Jr., Judge.

    Allen Williams, was convicted of murder and appeals.
    Affirmed.

      J. P. Lawrence and J. V. Frasier, for plaintiff in error.

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

The plaintiff in error was convicted of the crime of murder committed upon his wife by shooting her with a shot gun, and the jury assessed the punishment at imprisonment for life. He has appealed from the judgment entered upon such conviction. It appears from the record that no exceptions were taken on the trial to rulings of the court and no exceptions were taken to the instructions given by the court to the jury and no instructions were requested to be given by counsel for the defendant, but upon the argument of this appeal it was contended that the judgment should be reversed.

First, Because the court erred in failing to instruct as to manslaughter.

Second, Because the evidence was insufficient to sustain the verdict of the jury.

The defendant, Williams, and his wife, Georgia Williams, resided on a farm about twelve miles south of Depew, Creek county. On the 25th day of July, 1913, he shot his wife. His defense was that it was an accidental killing without culpable negligence or fault on his part.

Briefly stated the substance of the evidence is this: Frank Whitfield testified that he lived about a half mile from the defendant; that on the 25th day of July, between nine and ten o’clock in the forenoon, the defendant called at his place and said that he had shot his wife but did not think she was seriously hurt, and wanted my wife and I to go and see her; that he called his wife and they went to the defendant’s place and saw the body of a woman on a cot in the.passage way between a double log house. Some chickens were ón the body and picking at the face. That he left his wife there and went to notify the neighbors; that the defendant had lived on his place the .preceding months of January, February and March and during that time on several occasions he heard the defendant make threats against his wife, saying, “That he was going to kill her in case she would mistreat him as she had done.”

Elizabeth, wife of Frank Whitfield testified that the defendant came to their house and said he had shot his wife and they went to his place and found her dead body lying on a cot; that in February while the defendant was living on their place she heard the defendant say, “that his wife had gone off with another man and if she ever owned it he was going to kill her,” that about the first of April in her house, when Kelly Humphreys was present the defendant said, “A man had taken his wife and if she ever owned it he was going to kill her,” that while she was there with the dead body that morning the defendant picked up a shot gun and she said to him, “not to bother anything until they hold the inquest,” and that she noticed that the defendant had a revolver in the belt of his pants; that he left her and went out in the field and was gone ten or fifteen minutes and when he came back he said, “His wife owned it that she went off with that man, that.she owned going off this morning with that man.”

James Batts testified that he lived about a mile and a half from the defendant and made an examination of the body of the deceased that morning and noticed a wound in the small of the back, that “you might put a small size egg in it.” That he had heard the defendant make threats against the life of his wife, that he said, “He had stood a whole lot and before he would stand it again he would kill her. That she went to Kansas City with Tom Berry and then sent to him for a ticket to return and he sent her a ticket but if he had any more trouble like that again he would kill her.” That in the last days of June witness was going to Depew with Mr. Hollis and the defendant asked for a ride to Depew and he talked about his family' trouble and remarked that “before he would stand what he had stood from her he would kill her.”

Henry Ransom testified that he lived about half a mile from the defendant and about the first of May defendant told him that his wife ran off once with a fellow and if she ever undertook to do it again he was going to kill her. That later he heard the defendant say that his wife was mistreating him and he could not stand it much longer; that if she kept on mistreating him he. would kill her.

A. R. Nauman testified that he was at the defendant’s place that morning and the defendant stated that it was between eight and nine o’clock when his wife was shot.

For the defendant Mrs. Mary Worley testified that she was out hunting grapes that morning and went to the defendant’s place to ask him where she could find a grape patch; that she found his wife lying on a cot and he was sitting by her on a box brushing the flies from her face; that the woman asked her to come in and the defendant told her that he accidentally shot his wife and his wife said that she was going to die and asked witness and the defendant to kill her and witness told her she was going for some grapes. That it was then about ten or eleven o’clock.

Carl Williams testified that he was a son of the defendant and the deceased was his step-mother. The occurrences attending the homicide were narrated by him as follows:

“I got up and made the fire and my step-mother came in and got breakfast and papa cleaned up the room after breakfast, and he said I am going over to Mr. Yancey’s, and my step-mother said I was not intending to go until tomorrow, but if you are going I will go too. ' So papa said all right and they started out in a little while and I was coming back from the hog pen and I seen ray step-mother going towards the well, and I seen her fall. That’s all. I came on to the house and helped take her in the house and I went and put on my shoes and went after the doctor. My step-mother said to go for the doctor. Dr. Woods didn’t come, he said he didn’t have anything to dress the wound with. My step-mother wanted papa to take his gun along to kill squirrels. She said she was tired of fish and wanted squirrels. I did not see the shot fired. I was not paying any attention to it.”

John Yancey, and his wife Eliza, both testified that they lived about two miles from the defendant and the day before the killing the deceased was at their place sewing, and Yancey and the defendant went fishing; that they went home that evening and they gave them some molasses in a gallon bucket, and the deceased left the dress she was making at their place.

Testifying in his own behalf the defendant narrated the occurrences attending the homicide as follows:

“The first thing I called my boy to make the fire, and my wife asked me to clean up the house while she got breakfast, and she said where are you going today and I said I promised to bring Mrs. Yancey’s bucket -back today, and she said I wasn’t intending to go over but being as you are going, I will go back and finish my dress, and you will help me do the washing tomorrow, and I said certainly, and so she combed her hair and said she would be ready in a little while, and I got my gun out and I said to her 'how long will you be ?,’ and she said as soon as she combed her hair and dressed, and I was standing on the ground about a step and a half from the porch, and my wife said as soon as I see that the trough is full of water for the ducks I will be ready. She passed by me going to the well. I was standing there and waiting on her, as she passed by me I happened to look at this gun and I seen it was off of safety and I reached down in this shape (indicating) and it went off just that way (indicating). I did not know that I shot my wife until she hollered and said: 'You have shot me’ and I threw down the gun. I called my son to help me and we took her and carried her to the porch- and laid her on a cot and I said go and call some one right quick and she said, get the doctor quick I am suffering terribly, and I said hurry and get Dr. Woods, and I was sitting' by her side brushing the flies from her face when Mrs. Worley came by and said, 'Do you know where I could get some grapes ?,’ and I said, ‘No, unless you can get them up in the pasture there,’ and she said, ‘Is someone sick,’ and I said, ‘No, my wife was accidentally shot,’ and she said, ‘How did it happen,’ and I went on to relate to her-how it happened. Mrs. Worley said, ‘Have you sent for a doctor or for any one,’ and I said, ‘I have sent my boy for the doctor.’ I said ‘There is Simon Thomas, if you could get word to him I am satisfied he would come,’ so she left.”

He further stated that his wife died about an hour and a half after she was shot and he then went down to Whitfields. That he did not own a six shooter and did not have one that morning. He denied having ever made any threats against his wife. On cross-examination he stated that he knew his wife went to Oklahoma City and from there to Kansas City, but did not know that she went away with Tom Berry. That they had been married about five years and never had a fight.

Plaintiff in error’s brief is prefaced as follows:

“Was the failure of plaintiff in error to request instructions for manslaughter a waiver, especially to estop him from now presenting this objection to this court?”

Upon the record before us counsel for plaintiff in error have not properly raised the question. Only prejudicial errors raised by exceptions reserved, require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court. The instructions of the court submitted the issue of murder and justification on the theory of the defense that it was a case of accidental shooting, for which the defendant was not criminally responsible. The instructions given were unexceptional, and as before stated the defendant did not request the court to give instructions covering the law of manslaughter in any degree. If the defendant’s counsel had requested further instructions and they had been refused and exception taken, the question would have been properly raised. In a prosecution for murder it is the duty of the trial court to determine, whether there is or is not any evidence which tends to- prove different degrees, and when the court has determined that there is some evidence tending to prove different degrees, then- the law of each degree which the evidence tends to prove should be submitted to the jury.

■ Bishop says:

“The charge should state the law in its application to the facts, as already explained, correctly and fully. If, for example there are different degrees of an offense, the law of each degree, which the evidence tends to prove, should be given, but not of any degree which it does not tend to prove.” Bishop’s Crim. Proc. Par. 980.

Our penal code defines manslaughter in the second degree as:

“Any killing of one human being! by the act, procurement or culpable negligence of another, which under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable - homicide, is manslaughter in the second degree.” (Section 2325 Rev. Raws.) •

This is the provision which counsel for plaintiff in error claims applies in this case, and which the charge of the court failed to cover. The offense of manslaughter in the second degree can only be sustained by proof that death ensued as a direct result of the defendant’s negligence. The defendant was the only eye witness and upon his testimony alone can there be any claim of manslaughter in the second degree. According to his testimony it was clearly a case of accidental shooting without negligence on his part and he was not guilty of any offense.

In the case of New v. Territory, 12 Okla. 172, 70 Pac. 198, the defendant was convicted of murder. He admitted firing the fatal shot, and sought to justify on the ground of necessary self-defense. The court instructed the jury as to the law of murder and of self-defense, but did not instruct the jury as to the law of manslaughter. In the opinion it is said:

“In the case at bar there was no instruction upon this point. The instructions of the court simply covered the law of murder. Nor did the defendant ask for any instructions covering the law of manslaughter in any degree. We think the plaintiff in error has not properly raised this question. If the defendant was entitled to instructions upon this point, he should have asked the court below to instruct the jury upon the law of manslaughter, and in the absence of such a request it was not error for the court to omit to give such instructions. It is true that the court should instruct the jury upon all questions involved in the case, but when the court has covered the case with general instructions, it is not error "to omit to instruct upon some particular branch of the case deemed advisable by the defendant under his theory of the case, when the defendant has not asked for such instructions.” (Lovett v. State, 30 Fla. 142; Kelley v. People, (Col.) 29 Pac. 805; State v. Estepp, (Kans.) supra; State v. Hendricks, 4 Pac. 1050.)

After a careful examination of the record in this case we are of opinion that the defendant has been fairly and impartially tried and convicted of the crime charged in the information. The evidence shows that for several months previous to the homicide the defendant had made numerous threats in conversations with several of his neighbors indicating an intention to kill his wife, and this evidence is only controverted by the naked denial of the defendant. The parties concerned were negroes, and that the defendant was a vicious tempered man, the evidence would seem fully to prove. As to the defense of accident, at best it presented a question of fact for the jury, and it having been determined as we think, according' to the evidence, the duty of this court is performed by an affirmance of the judgment. The judgment of conviction will therefore be affirmed.

FURMAN and ARMSTRONG, JJ„ concur.


author: PER CURIAM.

text:
      BOB BROWN v. STATE.
    No. A-2401.
    Opinion Filed November 6, 1915.
    (151 Pac. 1018.)
    Where it does not appear in the case-made that the notices of appeal required by the statute to be served upon the clerk of the trial court and upon the county attorney, and no answer or response is made to a motion to dismiss on said ground, the motion to dismiss the appeal will be sustained.

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

    Bob Brown, convicted of hog theft, appeals.
    Appeal dismissed.
    /. D. Cox, for plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and Henry M. Vance, Co. Atty. Cherokee Co., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the District Court of Cherokee county on a charge of stealing two sows, the property of William Smith. On the 22nd day of December, 1914, judgment was rendered and he was sentenced in 1 accordance with the verdict of the jury to1 imprisonment in the penitentiary for the term of one year and one day. From the judgment an appeal was attempted to be taken by filing in this court on February 13, 1915, a petition in error1 with case-made. The state has filed a motion to dismiss the appeal filed herein for the following reasons:

“Because the case-made filed in said cause by plaintiff in error shows that no notice of appeal was ever served upon the county attorney and neither was a notice of appeal served upon the clerk of the District Court of Cherokee county wherein this cause was tried.”

It appears from the record that no answer or response to this motion has ever been made or filed. An examination of the record discloses that the motion to dismiss is well taken.

The appeal herein is therefore dismissed and the cause remanded to the trial court with direction to cause its judgment herein to be carried into execution.


text:
    ALBERT WILLIFORD v. STATE.
    No. A-2424.
    Opinion Filed November 20, 1915.
    (151 Pac. 1018.)

      Appeal from County Court, Coal County; P. B. Wilhelm, Judge.

    Albert Williford was convicted of a violation of the prohibitory law and appeals.
    Affirmed.

      West & Threadgill, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Albert Williford, was convicted on an information charging that he did unlawfully sell to one J. C. Thomas, whisky, and was sentenced to pay a fine of fifty dollars and to be confined in the county jail for thirty days.

J. C. Thomas testified that the defendant sold him and Jeff Howard a couple of drinks of whisky and Howard paid for it. That the defendant at another time sold witness a drink of whisky for which he paid fifteen cents. This was all the evidence for the state.

Testifying in his own behalf the defendant Albert Williford denied that he sold the prosecuting witness any whisky; that the prosecuting witness came to him several times and asked him to sell him some whisky but that he never did.

The credibility of witnesses is a question solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict is contrary to the law, this court must find as a matter of law that the evidence is insufficient to warrant the conviction. Finding no reversible error in the record, it follows that the judgment of the trial court must be affirmed.


text:
      In re JOHN DAVIS.
    No. A-2562.
    Opinion Filed November 1, 1915.
    (151 Pac. 1018.)
    In the matter of the application of John Davis, for an order reducing bail.

      T. L. Brown and Woodson E. Norvill, for petitioner.

      Wm. M. Hall, Co. Atty. of Rogers Co., for respondent.
   PER CURIAM.

The petition, filed in this court on behalf of John Davis represents that he is unlawfully restrained of his liberty and confined in the county jail of Rogers county, by the sheriff of said county, on a charge of having murdered one Leslie C. Wolfinberger in said county on May 28, 1915. That he was placed on trial in the District Court of said county on September 21st, which trial resulted in a disagreement of. the jury, at which time the trial judge ordered that petitioner be admitted to bail in the sum of ten thousand dollars. On October 22nd, said district judge, upon an hearing had for that purpose, declined to reduce the amount of said bail.

It ip further averred that said bail so required is unreasonable and excessive.

On a consideration of the petition and the evidence offered in support thereof, it is ordered that the petitioner John Davis, be admitted to bail in the sum of seven thousand five hundred dollars, conditioned as required by law. The same to be approved by the court clerk of Rogers county.


text:
    HENRY BOOKMAN v. STATE.
    No. A-2506.
    Opinion Filed October 9, 1915.
    (151 Pac. 1074.)
    1. HOMICIDE — Murder—Information—Sufficiency. An information for murder which after alleging venue and time charges that the defendant did then and there commit the crime of murder, and which charges that the defendant did unlawfully, willfully and feloniously, and with a premeditated design, to effect the death of one “H,” did make an assault upon the said “H” with a shot gun, then and there had and held in the hands of the said defendant, and did then and there with said fire arm so had and held as aforesaid, unlawfully, willfully and without authority of law and with a premeditated design to effect the death of the said “ H, ’ fire, shoot, and discharge said shot gun, at, into and upon the said “H, ” and with said shot gun beat, bruise and wound the said ' ‘ H, ’ ’ then and there inflicting certain mortal wounds in and upon the said “ H, ’ ’ of which mortal wounds the said “H” did then and there instantly die, sufficiently charges the crime of murder, and a demurrer thereto was properly overruled.
    2. HOMICIDE — Appeal in Capital Case — Scope of Review — Presentation Below. In capital eases, where the sentence is death, this court will examine the entire record, including the evidence, and if satisfied that the verdict is contrary to law or the evidence, or prejudicial error appears, a new trial will be granted, whether any exception shall have been taken or not in the court below.
    3. HOMICIDE — Murder—Sufficiency of Evidence. Evidence on a trial for murder held sufficient to sustain a capital conviction, and that no material error was committed upon the trial.

      Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

    Henry Bookman was convicted of murder and appeals.
    Affirmed.
    The plaintiff in error in this case was convicted of murder in the District Court of McIntosh county, and his punishment fixed at death, upon an information filed in said court April 21, 1915, charging him with the murder of one Rich Hardin, and in pursuance of the verdict of the jury he was sentenced to suffer the punishment of death by electrocution as provided by law. The judgment was rendered on the 29th day of May, 1915. From the judgment and sentence he has taken this appeal.
    The evidence shows that Rich Hardin, the deceased, a white man, was a farmer living about eight miles northwest of Eufaula, and about" a mile from the town of Nero. Plaintiff in error, a negro, had been working for George Booth, also a negro, whose place was about a mile distant from that of the deceased, and that the homicide was committed at the home of George Booth, about two o’clock, p. m., on the second day of April, 1915.
    A substantial statement of the evidence is as follows:
    Dr. F. L. Smith was the first witness for the state. He testified that he lived at Fame; that he reached the place of the homicide within an hour after its occurrence; that he found the body of Rich Hardin laying in the front yard of Booth’s house; that he was then dead; that he examined the body and found several wounds. A part of the right hand was shot off and one charge of shot entered below the arm pit; that there was a scar on his chest; that there were five or six wounds on the head and a big ugly wound on the top and side of the head, and “the entire back part of the head was broken all to pieces, the skull bone crushed, perfectly soft,” and some blood and brains were oozing out of the nostrils. That he found a pocket knife in one of the pockets and a piece of tobacco and some kind of a purse or pocket book. The knife was closed and was perfectly clean; that a justice of the peace and several other persons were present at the time.
    Lizzie Booth testified that she was the wife of George Booth, that between two and three o’clock in the afternoon of the day of the killing her husband and Henry Bookman who was working for them, were out in the field at work, and the deceased Rich Hardin called at her house.
    She further testified as follows:
    “Q. What did he do when he-first came? A. He came to the door, in the yard and said hello Booth, and I looked out, I was sitting in front of the window sewing, I looked out and saw it was Mr. Hardin and I says Booth is not at home, he is in the upper field, you passed him, didn’t you see him and he says rio, I didn’t see anyone but Henry. He says I just want to see him about getting a buggy wheel; he had bought a buggy from us in the fall, I broke my buggy wheel down, I got to do some driving and I thought maybe I could get one and I says you look at them, they were out by the side of the fence, you look at them and if you find one you want you can get it, he is going to sell them and he went and looked at three wheels and I says there is one on the south side and he looked at that and he come back and was standing at the porch, and he says I am awful tired, I have been working on the road, and I says won’t you come in and sit down, and he come in and sit down by the side of the door and. he hadn’t been sitting there over five minutes until Henry came and stood in the door. Mr. Hardin turned his'head around and says hello Henry. Henry didn’t speak. He looked at me and says Mrs. I. am awful sick, I have got the cramps, I couldn’t hardly get here; Mr. Booth told me to come down and get you to get me some medicine, says get me some soda quick.. I got up and started into my dining room, my dining room table sat in front of the door, and I picked up a glass and started around the table to go to the kitchen and get the soda when I heard the report of a gun, two right quick. There was a double barrel shot gun over the door where he was standing when I left ,the room. I immediately stepped back to the door and when I got to the door they were both up. When I left, Mr. Hardin was sitting down and Henry was standing in the door, and when I got back they were both standing up and he was striking him with the gun over the head. I screamed what is the matter, what is 'the trouble Henry, I seen Mr. Hardin wasn’t doing 'anything, just had his hands up in front of his face like.
    “Q. Indicate to the jury in what position? A. Just like he was, looked like he was this way, looked like he was helpless, had his hands up, wasn’t striking and wasn’lhdoing anything and he was striking with the gun.
    “Q. Who was striking? A. Henry was striking.
    “Q. What was Henry striking with? A. With the gun, and I says what is the matter, what is the trouble. Neither one spoke and then I says stop Henry, stop, do- you realize what you are doing, stop, what is the matter, and when I seen he wouldn’t pay any attention to me and neither one spoke to me, I ran out the door and began to scream for help, I was screaming loud all the time and the first one I saw was Mrs. Gardenhire, she lives directly in front of my door in the west field right in front of my door.
    “Q. About how far? A. Well, I guess we have almost a quarter of an acre right in front of the house and then the section line and then -that field is just directly in front.
    “Q. Is it on a hill or in the valley? A. Yes, sir, there is a valley between but she is on the hill, the house sits on the hill.
    “Q. Go ahead? A. And when she come then I screamed to her to come as quick as she could and bring her man, I thought I had saw her man that day, but I suppose they were just coming to dinner, there was no man in that field and she come and when she came I told her to go as quick as she could to the next neighbors on the north, Mr. Plemmons, I says run up there and tell them to send to Fame for the officers as quick as they can that Henry had shot Mr. Hardin, and she went right on up there.
    “Q. In the meantime what became of Mr. Hardin? A. Well, when I left then, when I couldn’t get any attention frbm either of them I ran out thinking maybe I could make someone come in, and when I ran out in the yard I kept looking back every step, maybe two, I never did see them when they come out of the house, but they come out of the house and Mr. Hardin ran at least ten or fifteen steps from the house before he fell and I looked back once and saw Henry strike him in the back of the head with the gun.

      “Q. Do you know what position he was in when he fell? A. Seemed to me like he was laying on his arm, I don’t know, I never went up and looked, I wouldn’t go- up close to him, but seemed like he fell on his face, I think.

      “Q. Then Henry ran right up and hit. him over the head with the gun? A. With the gun in the back of the head, I saw that.
    “Q. What did Henry do, or what did he say? A. Then I come from the gate and I says Henry what on earth do you mean by killing Mr. Hardin, what on earth do you mean, and he says we had a fuss, and I says when did you have a fuss and he says we have had two or three, and I says it looks to me you could settle that without all this bloodshed and he says it is done and I am going away, and I says don’t go away and leave me with this dead man, go to the field as quick as you can and tell my husband what you have done and tell him to come home, he $as working away from home that day, had a piece of ground rented away from our farm almost a mile towards Fame, and he was up there and I says go up there and tell him what 3'mt have done and tell him to come as quick as you can come. I says don’t leave, he kept talking about going and I kept persuading him not to go and leave me, told him to get my husband, I was sick at the time.
    “Q. What county and state did this happen in? A. McIntosh county, Oklahoma.
    “Q. Now, whose gun was it that Henry used? A. My husband’s.
    “Q. Would you know the gun if you would see it? I believe I would.
    “Q. I will ask you to examine this gun and state if you know what gun it is ? A. Yes, sir, I think this is the gun.
    “Q. Is this the gun that Henry used at that time? A. I think it is.
    “Q. What became of the gun at that time? A. I think part of it laid in the room, it broke in the room, they fought through two rooms, went through two rooms and I think part of it was in one room and when the men began to come through the house and pick up things, I just left everything just as it was because there was blood over nearly everything in the room, and I just left things as they were because I knew they wanted to examine them and I think some of them picked up part of the gun.”
    George Booth testified that on the afternoon of the day of the killing he was out in the field a half mile from1 home plowing and Henry Bookman the defendant was there harrowing. The defendant called him and said that he had cramps so bad he could hardly walk and he told him to go to the house for something to cure the cramps and to hurry back and the defendant went to the house; that about a half hour later he heard someone hollow and the defendant ran up to him; that he was all bloody and he said to him what have you done down at the house. The defendant answered: “I have killed Mr. Hardin,” that he asked him what for, and he said, “Well, we had a fuss a day or two ago and we had one this morning,” and he said he was going away and he said to him, “No you will have to go back to the house, you are not going away,” that he took him back down there and when he met Mr. Plemmons he asked him to go back with him and help him keep this fellow until the law came. That they found Mr. Hardin dead in the front yard and he found his double barreled shot gun lying on the porch and it was broken in two. That he kept his shot gun in a rack over the front door.
    J. W. Workman testified that he lived between a quarter and a half mile north of Booth’s place and was in the field plowing this afternoon. That Rich Hardin came by and stopped to talk with him and the defendant was just across the road inside of the field at that time. That after talking a few minutes Mr. Hardin went on towards Booth’s house, and shortly after that the defendant left the field and a little later he saw the defendant coming back through the field and heard him hollo and that George Booth and the defendant took the team from the harrow and both returned to the house; that later he went over to Booth’s house.
    Grover Plemmons testified that he lived about a half of the quarter north of Booth’s place; that he saw the defendant that afternoon about half past one going towards Booth’s house and he was running; that he saw him going back to the- field where h'e had been at work and then saw him return to the house with Booth.
    Mary Gardenhire testified that she lived about a quarter of a mile west of Booth’s house and heard the shooting and heard a man hollo; that she could see over to Booth’s place from where she stood; that she saw a man staggering in the yard; that Mrs. Booth called to her and she went over there; that she saw the defendant striking a man that was laying down and the man he was striking was a white man.
    J M. Plemmons testified that he lived about a quarter of a mile north of Booth’s place; that he saw the defendant at different times that afternoon. First when he passed his place going to the field to work, then about two or three o’clock, going back to Booth’s; that he saw him go up to the house and go in at the west door, and he saw Booth and the defendant returning to the house, and he followed them and found Mr. Hardin dead in the yard; that Booth asked the defendant, “Henry, what did you do this for,” and he answered, “I done it because we had a fuss three or four days ago and when I asked old lady Booth • for medicine, Hardin said ‘why ain’t you at work, that is the way of a damn negro/ and Hardin hit him at the same time, and that was what he killed him for.”
    L. R. Jordan testified that he was a justice of the peace; that he lived two and a half miles from there, and in answer to a telephone call he rode there on horse back; that he was present when Dr. Smith examined, the body and he told Mr. Plemmons to arrest the defendant.
    The plaintiff in error, Henry Bookman, as a witness in his own behalf testified that he killed Rich Hardin. His further testimony is as follows:
    “Q. Well, now you state in your own way what caused you to do that? A. Well, I leaves the.field and goes to the house, I was sick, I had the cramps, and I told Mr. Booth that I was sick, and had been sick for several days, I didn’t say anything to him about it at the time, I told him I was sick, I am cramping, I am just cramping so bad I don’t know what to do and he says then I will harrow and you go get you some medicine, tell my wife to give you something, some soda, or something for your cramps: I said then it is so far up there I hate to go up there, and he says well, if you are sick you go on to the house and get you some medicine, says I don’t want no man to work for me and he being sick and so we drove on out to the end of the row and then I come on out the gate and come down the section and come on to the house, walking, and I went in with my hand hold of my stomach that way and told Mrs., I says Mrs. I am sick as I can be, I wish you would please mam go get some soda or something to ease my stomach, and she says yes I will and she got up then to go to get it, and there was two chairs, one chair sitting there and one further over and I went to the fartherest chair and I sat in the chair with my knee, this knee, up in the chair that way with my arm up this way and my head here and one hand on my stomach this way, and this feller he says to me, he says how come you to come to the house. I says I am as sick as I can be, I am sick as I can be. He says what is the matter and I says I have got the cramps so bad I don’t know what to do. He says Oh well hell, you know what is the matter. I told him, no sir, I says I don’t, and he says well your time has come to die and I didn’t say anything, I just kept sitting that way, and he said did you hear what I said, and I didn’t say anything to him at all, I just sit there. He says do 3'-ou know I come across the field the other day where you were plowing and I stopped to talk to you and he says you wouldn’t-talk, you told me that whenever you were working for a man you didn’t have time to stop and talk with another man. I says you are correct, I did say it, I says I hired to him to work and do my work and I believe in doing that, I didn’t believe in stopping in the road and talking to everybody and anybody and at that time I didn’t have time to talk, and he says I come across the field the other day from hunting and I had been hunting and come across there where you were working and you wouldn’t stop that day and talk to me, you wouldn’t say nothing to me and says that I told you that I was tired and had been hunting all day and you was the biggest rabbit I seen and I told you I believe I will shoot you to see how fast you will run, and I says no, don’t do that, I says if you shoots me just shoot me and don’t kill me I am liable to run pretty fast, liable to run pretty fast, no telling how fast I can run, but I never have run, I never give nobody no trouble, and I just turned my horse and drove on and he sit there until I come back and he says I have got a good notion to shoot you, shoot at you to see how fast you can run, says I believe you can run pretty fast and then I stopped then and I asked him was he drunk and he says no he wasn’t drunk.
    “Mr. Vaughn: Q. When was this conversation had that you are talking about now? Was that had up at the house, or some other time? A. No, sir, that was about a week before then.
    “Mr. Vaughan: Object to it, if your honor please.
    “The Court: Objection overruled.
    “A. He said to me, he says well, I will just shoot you, that is what I will do. I told him no sir, don’t do that and I just turns then and drove on with my back to him, drove on off. I went two rounds and he was off on the side of my furrows, where I was plowing setting down. Mind you I went these rounds with him sitting on my furrows where I had plowed and left these furrows and he was sitting there. Sit there until I went two or three rounds, and then he got up when I got up to even with him and just ranged his gun around like that, and I told him, I says, don’t do that, I never have done nothing to nobody, to you, I don’t see why you want to do me this way, I says I am just working here and trying to get along with everybody, I treated everybody right. Well, he says I have got a good notion to do it, just that way and then he went to leave and went on and walked off a piece and says mind out you old guy, I will get you for this, I don’t like you not talking to me, I says well, sir, I just haven’t got the time and I turned right on and kept working, right on, and so I went in the house that evening after I was sick, I went into the house, as I said, I went in and was up in the chair.with this hand this way and my head down and he says what you come up here for. I says I am as sick as 1 can be. I am just sick. What is the matter? I says I have got the cramps and he says you know what is the matter, I says no sir, I don’t. He says well your time has come to die, he says I just feel like doing something anyhow, says I just feel like doing something anyhow, he says to me, and I didn’t make any answer, didn’t say anything to him back at all, just sit there in the chair with my arms up and this knee on the chair and the other foot on the floor and so when he said that he said did you hear me talking to you, and I didn’t say anything to him that time and when he asked me then he slapped' me, slapped me side of the head and slapped my hat off and kicked me the same time, says damn you, I will just kick you until your nose bleeds, says I will just kick you all over this house, and I got up and reached down to get my hat and he says don’t get that hat and run his hand in his pocket and says don’t get that hat. I says it is mine, I says will you please let me out of here. I am sick, I will just go back up in the field and tell the man of the house and he says no, I won’t let you go nowhere and you won’t tell it either, you won’t tell the man of the house nothing of what I done to you, says I will just fix you right now and run his hand in his pocket and got his knife out and ran to me and cut at me and cut through my jumper I had on and vest and my overalls to my undershirt and so I shoved him back and got this chair and held the chair between us, I says if you will please just let me out of here I says I will just go, I will go if you' will just let me out, I am done hurt, am sick as I am and you imposing on me this way, I will go on back to the field like I am sick and let the medicine go, can’t you please let me out and he says no, I won’t let you out and I sit the chair down to break to run off and he seed' that I was going to run out and when I started he just grabbed the door and slammed the door shut and shut me up in the house and reached up and got this gun and says I will fix you right now, I will just fix you right now. He shut up the knife and reached and got the gun and says J will just fix you right now and made at me with the gun and when I seen he meant what he said, I run into him, sit the chair down and run into him and takes the gun away from him. When he struck at me, he struck at me first with the gun and struck the gun somewhere against the wall of the house and broke the gun, and when I got the gun it was broke. When I taken it away from him it was broke and I says now let me out of here, I says you have got me hurting all over, I says will you please let me out of here, just let me out of here, and he says no, I am going to kill yo'u I said and just kept coming upon me and run his hand in his pocket again and his other hand in his breast like that and says I am going to kill you I said. He said you have got the gun now you had better kill me, I says I won’t do that, I don’t want to do that, I .says let me out of here if you please, let me out of here, let me out and he says no sir, I won’t let you out and come presisting on me and then I fired the shots.
    “Q. What did you do after you realized that Mr. Hardin was dead? A. I didn’t do anything, I went up in the field and told Mr. Booth.

      “Q. You came back to the house with him? A. Yes, sir, I come back to the house with him.
    “Q. And it was while you were m fear of being greatly wounded by that knife that you speak of that you hit him with the gun? A. Yes, sir.
    “Q. And after you had fired the two shots, then did Mr. Hardin advance towards you again? A. He never did quit, just kept on, run into me, kept on beating me with his fists.
    “Q. How, how long was it from the time that Mrs. Booth left that room to get the medicine was it until you fired the shots? A. Well, I would judge that it was about twenty-five minutes I guess, or longer, seemed to me it was about a half an hour, I was sitting down and he kept on talking with me, and kept on telling me what he was going to do with me and she was back in the room in there, kitchen some place getting the stuff.
    “Q. Now, you heard the testimony of Mrs. Booth wherein she stated that she had only left the room where you were long enough to cross the next room and return immediately back, is that so? A. No, sir, she had been in there a long while, long time.

      “Q. You heard the testimony of Mr. Booth relative to your statement to him after the homicide when you went up to the field, in which you made this statement: I have raised hell down at the house. Did you say that ? A. I did not.

      “Q. What did you tell him? A. I says I went up to the house, I says that man up there when I got there, I went in and he jumped on me and went to cussing me out and beating me around, said what he was going to do, and he says I know better, what have you done, and .1 told him I didn’t know, you go up to the house and see, I didn’t know whether I had killed him or not, to go to the house and see.”
    In rebuttal Daily Hardin testified that he was fourteen years old and the son of Rich Hardin, the deceased; that his father had not owned a shot gun during the last two years and was not in the habit of going hunting.
    Joi-iN R. McBeth,

      For Plaintiff in Error.

    R. McMillaN,

      Asst. Atty. Gen., for-the State.

   DOYLE, P. J.

The plaintiff in error, Henry Bookman, was informed against for the murder of one Rich Hardin. The trial jury found him guilty of said charge and fixed his punishment at death. His motion for a new trial having been overruled and sentence of death having been pronounced upon him, the judgment has been brought to this court for review. The errors assigned are as follows:

First. That there was error in overruling the defendant’s demurrer to the information.

Second. That there was error in overruling the application for a change of venue.

Third. That there was error in overruling the defendant’s motion for a continuance.

Fourth. That there was error in overruling the defendant’s demurrer to the evidence.

We are satisfied from an examination of the entire record that the assignments of error are destitute of merit.

The information charges that the defendant unlawfully, wilfully and feloniously and without authority of law and with a premeditated design to effect the death of Rich Hardin, did on the day named make an assault with a shot gun and then and there_ unlawfully, feloniously and with a premeditated design to effect the death of said Rich Hardin, did fire, shoot and discharge said shot gun at, into and upon the said Rich Hardin, and with said weapon beat, bruise and wound the said Rich Hardin, then and there inflicting certain mortal wounds in and upon the said Rich Hardin, of which said mortal wounds the said Rich Hardin then and there instantly died.

Where an informati n charges that the injuries to the deceased were inflicted by the defendant with the premeditated design to effect death, and alleges the means with which the homicide was committed, it is sufficient. The demurrer was properly overruled.

The application for a change of venue does not conform to the requirements of the statute. It consists only of the affidavits of the defendant himself and his attorney. Our procedure criminal provides that:

“Any criminal cause pending in the District Court may, at any time before the trial has begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the- county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if-reasonable notice of the application be given to the county attorney and the truth of the allegation in such petition be supported by the affidavits of at least three credible persons, who reside in said county.” Section 5811 Rev. Laws.

It will be noticed that the language of this statute is:

“Whenever it shall appear in the manner hereinafter provided:” The application for the change of venue in this case wholly fails to meet the statutory requirements. It was therefore properly overruled.

'The application for a continuance was based on the absence of certain witnesses. Defendant set fo'rth in his affidavit that his father I. L. Bookman, and his two brothers, John and Terry Bookman, .and his maternal uncle, Willis Williams and two white men, namely: E. Keezler and Bud Sanders if present would testify as character witnesses. That I. D. Bookman resides somewhere in the state of Oklahoma, not known to the defendant ; that the other witnesses reside in Grimes county, Texas, and had promised him they would be present in September, 1915, if the case be continued to that time.

It is not claimed that any of the persons named could testify to any of the facts in the case, nor dogs he aver in his affidavit that he cannot prove the same facts by other witnesses. There was no error in overruling the motion for a continuance.

There can be no doubt as to the sufficiency of the evidence. That the defendant killed the deceased, he did not deny. His defense was that he killed the deceased in his necessary self-defense. It is enough to say that whatever there was' of that defense, no one can reasonably claim that it was not properly submitted to the jury, and the jury by their verdict have found that that defense was untenable. We cannot see how, under the evidence in the case, the jury could have reached any other conclusion. We are satisfied from an examination of the record and upon a consideration of the proceedings upon the trial with respect to its fairness, that the defendant had a fair and impartial trial and has been convicted upon evidence that should satisfy the fairest mind of his guilt. There appears to be nothing in the case that would justify this court in interfering with the execution of the judgment and sentence. The judgment appealed from is therefore affirmed.

It is further ordered by this court that the warden of the penitentiary proceed to carry into execution the judgment of the District Court of McIntosh county in this case and the 10th day of December, A. D. 1915, is designated as the date for executing the sentence pronounced.

FURMAN and ARMSTRONG, JJ., concur.