author: BAREFOOT, J.

text:
    PAUL WILLIAMS v. STATE.
    No. A-10941.
    April 20, 1949.
    (205 P. 2d 1164.)

      See, also, Ex parte Williams, 83 Okla. Cr. 322, 177 P. 2d 138.
    Wm. H. Lewis, of Oklahoma City, for plaintiff in error.'

      Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Warren H. Edwards, Go. Atty,, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Panl Williams, was charged in the district conrt of Oklahoma connty with the crime of murder; was tried, convicted of manslaughter in the first degree by the jury, and sentenced to serve a term of 40 years in the State Penitentiary. From this judgment and sentence he has appealed.

The defendant presents fourteen assignments of error, but in his brief states:

“For the sake of brevity, these grounds, which the defendant is of the opinion are vital and constitute error, will be discussed and authorities cited in support thereof.”

He then sets out five assignments of error, which are in substance as follows:

1. Error of the court in admitting incompetent, irrelevant and immaterial and prejudicial testimony ánd exhibits over the objection and exception of the plaintiff in error.

2. The court erred in permitting evidence of other crimes to be introduced.

3. Error of the court in permitting the amendment of the information prior to the second trial of this case, and the refusal of the court to permit the original information to be introduced in evidence.

4. Because of improper and prejudicial statements made by the assistant county attorney in his closing argument to the jury.

5. Error of the court in refusing to sustain the motion of defendant to direct the exhumation of the body of the deceased in order that an autopsy could be performed.

The consideration of these assignments requires a short statement of the facts as presented by the record.

Defendant was charged with murder in connection with the killing of Marie Copeland on December 14, 1946, at the home of deceased in the rear of No. 311 North Central, in Oklahoma City. Roth defendant and deceased were negroes. Deceased had previously been married to Cleveland Copeland, and had two very small children, who were asleep at her home on the night of the killing, and too young to testify. Deceased and Copeland had been separated and divorced for about six months, and defendant had been living at the home of deceased for a period of about six months prior to the homicide on the early morning of December 14, 1946. A number of witnesses testified that deceased and her former husband were selling whisky at their home and that defendant and deceased continued to sell whisky after he began staying there.

Defendant testified that on Friday morning, December 13, 1946, he and Marie Copeland started quarreling. He testified it was by reason of her wanting to know what he had done with $10 he had taken out of their joint savings. He testified that he left home and went away to keep from arguing with her. Sometime after .midnight defendant returned home, and Marie was lying across the bed with her clothing on, and immediately began to question defendant as to where he had been, and about the money. She arose from the bed and went into an adjoining room. He thought she was going to play the Victrola. She returned through the -kitchen door and had a soda pop bottle in her hand. He saw that she had been drinking and was mad. His testimony was that he reached behind the door and took therefrom a 12 gauge shotgun for the purpose of scaring her, and that he did not intend to shoot her. He further testified that she grabbed the gun and in the tussle for the possession of the same, it ivas accidentally discharged, killing deceased.

It was the contention of the state that deceased was shot in the back of the neck slightly below the left ear, and that the shot ranged upward, coming out in the neck beloAV the chin.

The first and second assignments- of error may be considered together.

Defendant’s contention as to the admission of incompetent, irrelevant and immaterial evidence is based upon the admission of testimony showing that on or about November 25, 1940, defendant shot at deceaséd. with a pistol in her home, but missed her, and that he after-Avards told the two parties of this incident and shoAved both of them where the shot had entered a dresser drawer. It will be noted that this incident occurred 19 days prior to the homicide on the morning of December 14, 1946. This evidence Avas developed by cross-examination of defendant, and Avhen he denied making the statement to the two witnesses, both were called in rebuttal and testified that the statements Avere made by him.

On cross-examination the folloAving evidence was given by defendant:

“Q. What was your purpose in getting the shotgun? A. Just to scare her, no hard feelings toward her Avhat-ever. * * * Q. Can you explain hoAV the gun Avent off unless the hammer Avas back? A. Well, sir, the only reason I could figure out, the gun in tussling, it hit the corner of the dresser some Avay. * * * Q. Did you at any time eArer intend to shoot or kill Marie? A. We got along too good. Q. Do her any harm whatever? A. No, sir. Everybody around there can tell you we got along fine.”

Defendant then testified that they had only had one little argument during the six months he had lived with her, and at that time she hit him over the eye with a glass, which put fright in him. This was at a time different from that when he shot at her and missed her, the shot entering the dresser drawer. Defendant was handed a photograph and identified the place in the dresser where the shot entered.

Under the above statement of defendant’s testimony, we are of the opinion that this questioning was within the scope of proper cross-examination of defendant. Also, this evidence could have been introduced under the holdings of this court to show the state, of mind of the defendant at the time of the homicide. Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924.

As to the contention that this evidence is not admissible under the rule that it was too remote in time, we call attention to the fact that only 19 days intervened between the two acts.

While, as above stated, we think the evidence was admissible as proper cross-examination, we refer to the case of Tapedo v. State, 34 Okla. Cr. 165, 245 P. 897, 899, cited by defendant, where it is said:

“Under the first assignment it is contended that the evidence of a previous assault of the defendant upon the deceased is proof of a different crime and prejudicial. The previous relations of the. parties, ill treatment, and previous assaults and difficulties in homicide cases, where they are not too remote, are generally admissible as showing motive and intent, explaining the mental attitude of the parties, and as throwing light on the offense for which the defendant is being tried; it generally being said that such evidence should be restricted so that the jury may consider it only for the limited purpose for which it is admitted. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383; Koontz v. State, 10 Okla. Cr. 559, 139 P. 842, Ann. Cas. 1916A, 689; Smith v. State, 3 Okla. Cr. 629, 108 P. 418.
“Here a serious assault was proven only 13 days prior to the homicide, and as the cause of the trouble between defendant and the deceased continued down until it culminated in the homicide, the previous relations are so closely interwoven that it was clearly admissible as tending to shed light upon the killing.”

As to the contention that the evidence was proof of another crime and not admissible, see Birkes v. State, 27 Okla. Cr. 350, 227 P. 895; McCollum v. State, 57 Okla. Cr. 381, 48 P. 2d 872.

In view of what has been stated, we do not think this testimony was. an attempt to impeach defendant upon a collateral issue. It is a true principle of law that a witness cannot be impeached upon a collateral issue. In the instant case, defendant had been permitted to testify that deceased had hit him in the eye with a bottle only a short-while prior to the killing; that he had shot at deceased with a pistol only 19 days prior thereto; and that only defendant and deceased were present when the homicide occurred. Only the defendant could testify. The question of how the killing occurred was highly controversial and this evidence was proper, as stated in the Tapedo case, supra, to show “motive and intent,” “explaining the mental attitude of the parties, and as throwing light on the offense for which the defendant is being tried.”

In view of what has -been stated, it is doubtful if it was the duty of the court to instruct the jury on his own motion limiting the purpose for which such testimony should be considered by them. The court gave the jury. 36 separate instructions. Counsel for defendant did not except to a single instruction, and did not offer one requested instruction. No special instruction was requested limiting the purpose for which the jury should consider the testimony complained of. While we recognize the rule that it is the duty of the court to instruct the jury on all matters of law which he thinks necessary for their information in arriving at a verdict, Tit. 22 O. S. 1941 § 856, we have often held that if special instructions are desired by the defendant, he is required by our Code of Criminal Procedure to present such instructions in writing; and it is not error for the court to omit to instruct the jury upon the issues desired, where defendant has not requested such instructions. Dunbar v. State, 75 Okla. Cr. 275, 131 P. 2d 116, 122.

In the Dunbar case it is said:

“Only prejudicial errors raised by exceptions reserved require a new trial, and it is only where Ave are satisfied that the verdict is contrary to law, or to the evidence, or that injustice has been done, that Ave are permitted to reverse a conviction whether or not an exception has been taken in the trial court.”

This court has held that Avhere the death penalty has been given Ave will consider the instruction, even though there be no exception taken. And in the Dunbar decision, it is further said:

“The Code of Criminal Procedure provides the method of procedure for requesting instructions, and a defendant may submit to the court Avritten instructions with the request that they be given, and how objections and exceptions shall be preserved. 22 O.S. 1941 §§ 831, 856.
“It has been repeatedly held by this court that it is the duty of counsel for defendant, Avhere he is of the opinion that additional instructions should be given to reduce them to writing, and request that they be given. If he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct upon some material question of law, and that the defendant has been deprived of a substantial right. Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Lee v. State, 67 Okla. Cr. 283, 94 P. 2d 5; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821; Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Russell v. State, 17 Okla. Cr. 164, 194 P. 242; Williams v. State, 12 Okla. Cr. 39, 151 P. 900.”

The second assignment of error has reference to permitting the amendment of the original information. This information was filed on December 20, 1946. It was alleged therein that the homicide was committed by the defendant “shooting her in the left side of the face and neck.” The case was first tried with this statement in the information, and the trial resulted in a hung jury. On March 13, 1947, the minutes of the court clerk show that an order was entered upon motion of the state, granting leave to amend the information by striking out the above underlined phrase. The record does not disclose that either the defendant or his attorney was present at the time this order was entered. However, the second trial was not commenced until March 17, 1947. It is provided by Tit. 22 O.S. 1941 § 304 as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial', unless for good cause shown by affidavit.”

The amendment here was made three days before the second trial began. No demurrer or motion to quash the information was filed. The opening statement of the county attorney was made, and in it he stated that the state would contend that deceased was shot , in the back. The first objection was made when defendant at the end of the trial requested the court to have the body of deceased exhumed and an autopsy made. (Reference will be made to this hereafter.)

The evidence of the witnesses for the state was to the effect that the entrance of the shot was in the back of the neck and that it emerged under the. chin. The undertaker, the photographer, and others who examined the body testified to this effect. Defendant offered evidence of gunsmiths who had not examined the body, but who testified as experts, who testified that in their opinions, from the nature of the wounds as described to them and as shown by the photographs of deceased, the entrance of the bullets was from the front and the exit at the back. This was a question of fact for the consideration of the jury.

Under the statute above quoted and the prior decisions of this court construing the same, we are of the opinion that the court did not err in granting the state permission to amend the information by striking the words “in the left side of the face and neck,” after the first trial' and prior to the second trial. We presume the evidence at the first trial justified this amendment. Tit. 22 O.S. 1941 § 304, and cases cited.

It is next contended that prejudicial error was committed by reason of certain remarks of the assistant county attorney in his closing argument to the jury. This is based upon the following proceedings:

“And thereupon W. N. Mounger, Asst, county attorney, made the closing argument to the jury on the part of plaintiff, The State of Oklahoma, and during the course of said closing argument, the court reporter was called into the court room, no request having previously been made that the reporter take the arguments of counsel, and thereupon during said last argument to the jury, the following record was made and the following proceedings had, to-wit:
“By Mr. Lewis: Comes the defendant and objects to the county attorney’s office referring to the outcome of the former trial and using .the word ‘guilty’ in connection with his argument, which he has just used, and moves that the court admonish the jury not to consider that.
“By the Court: The objection is well taken, and, Mr. County Attorney, that remark is' highly prejudicial and. entirely unwarranted and the jury will be instructed not to, under any circumstances consider that remark referring to the former trial of this case.
“By Mr. Mounger: I would like the record to show that the remark was made in answer to the argument of defense counsel, William H. Lewis.
“By the Court: Proceed with the argument.”

Two facts appear from this record. All of the argument of the assistant county attorney was not taken by the court reporter, and the court sustained the objection of counsel to the statement, and instructed the jury that the remark was “highly prejudicial and entirely unwarranted and the jury will be instructed not to, under any circumstances, consider that remark referring to the former trial of this case.” This was a proper procedure by the court. No reference to the outcome of the former trial should have been mentioned. However, an examination of the entire record in this case reveals that reference to the former trial had been made in many instances during the progress of the trial. Testimony of witnesses taken at that trial was read to the jury, and comment made thereon. The jury could hardly have been expected not to know that there had been a former trial of the case. It was. stated by the assistant county attorney at the time that the statement made by him was in answer to argument of counsel for defendant. The record does not disclose the statement made by counsel for defendant.

In the case of Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, it was said:

“Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

See Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646, and Woodruff v. State, 56 Okla. Cr. 409, 41 P. 2d 129.

In Orrell v. State, 79 Okla. Cr. 300, 154 P. 2d 779, 780, it was said:

“Remarks of county attorney in argument to jury objected to as improper will be considered in the light of all of the evidence’in the record, and, in order to constitute reversible error, such remarks must be upon some material point which injuriously affected accused’s rights.”

See, also, Workman v. State, 83 Okla. Cr. 245, 175 P. 2d 381.

Prom a consideration of the entire record, and the fact the court sustained the objection of defendant and instructed the jury not to consider the same, Ave are of the opinion that this case should not be reversed by reason of this assignment of error.

It is next contended that the court erred in overruling the motion of the defendant to direct the exhumation of the body of deceased for the purpose of determining from the .location and character of the gunshot wounds whether deceased was shot from the back or from the front.

As above stated, this motion was not made by defendant until all the evidence of both state and defendant had been received, and both sides had rested. The deceased ivas killed on December 14, 1946. This request was made after the close of the second trial, which was March 21, 1947, an elapse of three months and seven days. Although counsel for defendant had represented him for some time prior to the beginning of the second trial, no request had been made for an autopsy. No doubt the testimony at the former trial had revealed the state’s testimony as to the entrance and .exit of the bullets that killed deceased. Defendant could have at once determined that it would be the state’s contention that the deceased ivas shot in the back. At the time the motion was denied by the court, there was no evidence in the record or before the court that the body of deceased had been embalmed and was in such a state of preservation that an autopsy would reveal the entrance and exit of the bullets. No doubt the court also considered the fact that there was much evidence in the record by those who had examined the body, including the undertaker and the photographer, as to the exact nature of the wounds and the entrance and exit of the bullets. Photographs of deceased which showed the wounds were in evidence. Tavo physicians, who testified as experts from facts and the photographs, stated that in their opinions the bullets entered from the back of the neck and the exit was under the chin.

In the case of Pope v. State, 56 Okla. Cr. 57, 33 P. 2d 813, 815, this court said:

“Applications of this character are addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless it affirmatively appears from the record that súch discretion has been abused. It was not error, therefore, for the trial court to overrule the application.”

The facts in the case of Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591, cited by defendant, are not applicable to the facts in the,case at bar.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    CLARENCE WAYNE HUDMAN v. STATE.
    No. A-10924.
    April 20, 1949.
    (205 P. 2d 1175.)

      Wilson & Wilson, of Frederick, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Clarence Wayne Hud-man, was charged by an information filed in the district court of Tillman county with the crime of murder, was tried, convicted of manslaughter in the first degree, and pursuant to the verdict of the jury, the defendant was sentenced to serve 30 years’ imprisonment in the State Penitentiary and has appealed.

This tragedy occurred in the town of Grandfield and involved three young people. The deceased, Beldon Chit-wood Lawson, referred to in the testimony as Babe, was about 20 years of age at the time of the homicide, and had only been back from the Navy about six Aveeks at the time the shooting occurred. The defendant likewise was 20 years of age and had served about three years in the Marine Corp, being discharged in March, 1946, about four months before the tragedy occurred.

Doris Lamb, a 17 year old girl, lived with her parents about eight miles from Grandfield.

Prior to the time the defendant enlisted in the Marine. Corp, he had a few dates with Doris Lamb. After his discharge, he again started keeping company with this young lady,, became engaged to her and gave her an engagement ring. The parents of Doris Lamb objected to Doris keeping company with the defendant, and about three weeks before the homicide in a conversation at a drugstore in Grandfield, Doris told the defendant their engagement was off, and according to the testimony of Doris, she offered to return the engagement ring but defendant refused to take it. At the same time, according to her testimony,, the defendant made threats against members of her family.

The deceased, Babe Lawson, prior to his enlistment in the Navy, had also dated Doris Lamb, and after his discharge from the Navy, and subsequent to the breaking of the engagement between defendant and Doris, the deceased commenced keeping company with her again.

On Saturday afternoon, July 6, 1916, Doris Lamb was in the town of Grandfield. About 1:30 p. m., as she and a girl acquaintance were emerging from a store, the defendant walked up and asked Doris to talk to him but she refused and walked on down'the street. Later, while Doris Lamb and her girl friend, Patricia Carroll, were waiting in an automobile in front of the Rexall Drug Store, the deceased and his brother, Robert, came up to the automobile and the defendant also came to the car at that time. Doris then introduced the defendant and the deceased; all the boys then departed. Later, at the suggestion of Robert Lawson, the two girls and the two Lawson boys drank Coca Colas together in the drugstore; thereafter, they all drove to a service station, bnt Doris went back to the drugstore to make a telephone call, leaving Patricia Carroll and another girl, Marjorie Varner, in the automobile. While these parties were at the service station, they saw the defendant coming south from the direction of his home at a very fast rate of speed, driving a Ford coupe. It was the state’s theory that the defendant at that time was coming from his home where he had picked up the gun which was used in the homicide.

The parents of the defendant owned a grocery store the third door west of the Rexall Drug Store, and they lived about two blocks from the drugstore. Later, on Saturday afternoon, the two Lawson boys returned to the drugstore and Babe Lawson went in and met Doris about 4 p. m. The deceased and Doris came out of the drugstore and turned west; the defendant was coming from the west; when he reached Doris and the deceased, he took hold of her arm and said “I want to talk to you”, and Doris said “No,” and the defendant repeated his request two or three times. At that time, the deceased made a remark to the defendant to either “Wait a minute”, or “Hold on there”.

The testimony of people who claimed to have seen the fatal conflict differed as to who struck the first blow. Some of .the state’s witnesses testified that when the deceased spoke to the defendant and asked that he desist, the defendant released his hold on Doris’ arm and struck the deceased in the face with his fist; that the deceased then struck the defendant and almost knocked him down and against the window at the front of the White Front Grocery which was next door to the Rexall Drug Store. When the defendant regained his feet, he pulled á gun which was a 22 Navy target pistol on a 45 calibre frame and struck at the deceased several times: The defendant then backed away and shot deceased, the bullet entering the body above the collar bone on the left side. The bullet did not cause instant death, but the deceased was able to turn and enter the drugstore. Shortly after deceased entered the drugstore, the defendant ran into the drugstore and struck the deceased on the side of the head with the pistol, knocking the deceased into the aisle between the booths and soda fountain, and defendant commenced kicking the deceased. The owner and an employee of the drugstore, together with other individuals who were in the drugstore, grabbed the defendant and were able to subdue him and take the gun away from him. The deceased was removed to a hospital where he died shortly thereafter.

The defendant interposed a plea of temporary insanity at the time of the commission of the homicide. Testimony of men who had served in the Marine Corp with the defendant was taken by deposition and they related an occurrence which had happened in Japan where the defendant had acted in an abnormal manner. Other witnesses testified to peculiar actions of the defendant after his discharge from the Marine Corp.

The plea of insanity was based principally upon the theory that the defendant had become weakened mentally because of combat fatigue suffered during the war; that because of this weakened mentality, the refusal of his girl friend to marry him, and her association with another boy aggravated his mental disease and caused him to become mentally unbalanced at the time the fatal encounter occurred.

Doctor Hugh Galbraith, a psychiatrist from Oklahoma City, testified at length in support of defendant’s theory and gave his opinion that at the time of the horn-icide the defendant did not know the difference between right and wrong.

In rebuttal, the state used Doctor Moorman P. Pros-ser, a psychiatrist now employed at the Central State Hospital at Norman, Okla., and also a consulting psychiatrist at the Will Rogers Memorial Hospital in Oklahoma City. This Doctor who had served as a Lieutenant Colonel in the Army, as a psychiatrist, testified that he had examined thousands of cases of combat fatigue. The defendant was committed to the Will Rogers Memorial Hospital for observation in September, 1946, and Doctor Prosser had him under observation during this period of time. The Doctor testified that after five days he was released from the hospital; that there was nothing wrong with him and further testified that in his opinion, based upon facts set forth in a hypothetical question concerning the commission of the homicide, the defendant was able to distinguish right from wrong at the time the fatal shot was fired and knew and understood the nature and consequences of his act.

Seven assignments of error are presented on behalf of the accused and we shall consider them in the order in which they were presented in the defendant’s brief.

It is first contended that the court committed an error and that the jury was guilty of misconduct after the submission' of the case and during the deliberations of the jury. In connection with this assignment of error, the record discloses that after the jury had ■ deliberated a few hours, they were returned to the courtroom by the bailiff and the following proceedings were had:

“By the Court: I understand from the bailiff you want some additional information. Foreman: That’s right, sir. The Court: What is it. Foreman: Some of us have never served on a jury before and they don’t understand how long a calendar year is at the penitentiary. We wish to have that information. The Conrt: Gentlemen, the court can’t give you any accurate information on the amount of time that a prisoner will have to serve in prison. That’s governed by prison regulations, which in turn is governed by his good behavior in compliance with the rules and regulations. There is a possibility he would have to serve every day of the calendar year. There are certain reductions upon his compliance with the prison rules and regulations of good behavior. Foreman: Some had the opinion a penitentiary year was seven months of our calendar year. Others didn’t know. The Court: No, there is no such definition as a penitentiary year. But the statutes do provide for certain reductions in his time provided he complies with the rules and regulations, and upon his good behavior. Mr. Wilson: May I suggest it depends on the warden. The Court: That’s governed by prison rules and regulations. Mr. Watts: May I suggest he gets certain credit for work days also. The Court: Yes. Mr. Wilson: That comes under the prison regulations. Foreman: That’s all. The Court: What is the attitude of the jurors. Do you want to work awhile longer. Foreman: We want to discuss this. We couldn’t get together on that part of it. The other part we practically- agreed upon.”

The defendant cites the case of Bean v. State, 58 Okla. Cr. 482, 54 P. 2d 675, 678, as authority to sustain his contention that the defendant sufféred prejudice by reason of the above proceedings. In the Bean case, supra, the trial judge in instruction No. 12 instructed the jury that a defendant convicted of a felony and receiving a prison sentence as a punishment therefor did not necessarily have to serve the entire punishment imposed for the reason that, under the laws of this state, the defendant was entitled to a commutation of time for good behavior. Set forth in the instruction was a computation of the time given to convicts on their good behavior for sentences ranging from four years to 99 years imprisonment.

In the body of the opinion, this court stated:

“It is clear the enacting of the statute for commutation for good behavior was never intended by the Legislature to be considered by the jury in the trial of the defendant, on the question of his guilt or innocence, or the punishment imposed by the jury. The instruction complained of as error only goes to the question of the commutation of the defendant after he had.been convicted and incarcerated.”

In disposing of the Bean case, supra, this court held that the giving of said instruction was an error but was not such an error as would justify a reversal of the conviction, but did modify the sentence imposed against the defendant by reason of the giving of such instruction.

We have carefully considered each word said by the foreman of the jury, the trial court, the Assistant Attorney General, and counsel for defendant. The statement of the trial court appears to be a correct and fair statement of the law. The only way the language of the court could have been improved would have been for him to have further stated:

“The question of a possible reduction of the prison sentence given to one convicted of crime because of credits on. his time for good behavior is a matter which the jury should not consider in any manner”.

In the proceedings hereinabove printed, counsel for the defendant also joined in the conversation between the foreman of the jury and the trial court and volunteered his opinion that the matter of reduction of the sentence was governed by prison regulations. We do not believe that there was reversible error because of this incident. We shall later consider this assignment of error with assignment of error No. 11.

It is next contended that the court erred in refusing to permit the witness, Garland Hassenmeyer, a witness for the state, to answer certain questions asked him by counsel for defendant on cross-examination.

This witness was one of the parties who assisted in taking the gun away from defendant in the drugstore.

On cross-examination the witness testified that he had to place his foot across defendant’s throat until his hands relaxed to where he could take the gun away from him.

The record then discloses:

“Q. I will ask, as a matter of fact, if his actions weren’t the actions of a wild man when you was fighting with him there trying to control him? A. He was very much out of the ordinary of a sane man. Q. I will ask you, Garland, from your observance of the defendant there, observing his actions and trying to quiet him as you have described, observing his condition as you have described, I Avill ask you this question, in your opinion, did Clarence Hudman, at the time you came in and tried to control him, did he have the mental capacity to knoAV the difference between right and Avrong?”

The state objected to the latter question and the court sustained the objection. The defendant excepted to the court’s action and then made an offer to prove that the Avitness Avould testify that in his opinion the defendant was not capable of knowing the difference between right and wrong. An objection to the offer was sustained. Counsel for the defendant contends that the court sustained the objection of the state solely upon the ground that the Avitness as a layman could not give an opinion as to whether the accused knew right from wrong at the time the crime was committed. The court may have had this in mind at the time he sustained the objection, but we rather think that the court sustained the objection for the reason that it was improper cross-examination, or that no proper predicate was laid to authorize the witness to give an opinion on this question. No question had been - asked the witness on direct examination concérning the mental capacity of the accused, nor was he even asked to describe the action of the accused in the drugstore. The witness merely related on direct examination that he saw a commotion in the drugstore and entered; that he saw the defendant and assisted in taking a gun from the defendant which he handed to Marvin Anderson. The direct examination consisted of only a few questions but the cross-examination consumed 13 pages in the record, most of it devoted to questions asked by counsel for defendant in an effort to bring to the attention of the jury the appearance of the defendant, his actions in the drugstore* and other matters to bolster the theory of the defendant that he was in a state of temporary insanity while he was struggling in the drugstore.

This court has held that a nonexpert witness, after first stating the facts upon which he bases his opinion, may, if these facts are sufficient upon which to base an opinion, testify as to his opinion or impression formed at the time as to the sanity of the accused. Alexander v. State, 66 Okla. Cr. 219, 90 P. 2d 949; Lee v. State, 30 Okla. Cr. 14, 234 P. 654.

On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief. Often we have observed in the examination of records in cases appealed to this court where the trial courts have been very liberal with counsel for the accused in allowing them on cross-examination to ask any question pertaining to the issues of the case. At the commencement of this case, the county attorney made his opening statement to the jury but counsel for the defendant reserved their statement until after the state had closed its case in chief. So even in a jurisdiction that applies the liberal rule of allowing any question to be asked on cross-examination pertaining to any of the issues of the case, the evidence offered to be proved by the witness was inadmissible at the time the question was asked because there was no issue of insanity in the case. This issue was not raised until after counsel for defendant made his opening statement to the jury.

The trial court did permit Moody Nunn, a nonexpert witness for the defense, to testify on the sanity issue, and if the witness Hassenmeyer had been called as a witness on behalf of the accused, it appears probable that the court would have admitted his evidence the same as he did that of the witness Nunn and others.

It is next contended that the court committed error in admitting in evidence photographs of the deceased taken several months prior to the time of the difficulty, one of which showed the deceased in the uniform of a sailor. There were two of these photographs admitted in evidence over the objection of counsel for defendant. Counsel contended that the photographs had no probative value and were offered for the sole purpose of arousing prejudice against the accused.

This court has held that photographs and pictures are admissible where. they illustrate or clarify some issue of the case and whenever' it is relevant to describe a person, place or thing, pictures shown to be a faithful reproduction of whatever it purports to reproduce, are admissible for the purpose of assisting the court or jury-in understanding the situation. Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981.

We are quite impressed with the argument of counsel for defendant that the photographs were taken too long before the time of the homicide to be admissible in evidence for any purpose. A picture of a person or place taken three years before a homicide occurs would apparently not be competent or revelant to any issue unless it was shown that the person or place shown in the picture was the same at the. date of the difficulty as it was at the time the picture was made.

Counsel for the state maintain that the state had a right to introduce these pictures for the reason that the defendant was present in the courtroom; that he took the stand and the jury had an opportunity to view him and see his size and weight, and that they were entitled to an opportunity to gain some information relative to the physique of the deceased.

We have had occasion many times to discuss the admissibility of photographs and have held that the question of the admissibility of such photographs in evidence is a matter addressed to the discretion of the trial court. Jackson v. State, 67 Okla. Cr. 422, 94 P. 2d 851.

There must be a limit beyond which courts should not go in the admission of photographs. Here the defense was temporary insanity and the relative size of the parties was not particularly pertinent. We shall discuss this assignment further in connection with the defendant’s proposition that the sentence assessed by the jury was excessive.

The next assignment of error is that the court erred in permitting the witness, Doctor Prosser, to testify to the results of a personal examination of the defendant while the defendant was a patient of the said Doctor Prosser at the time such examination was made.

After the commission of the homicide, the defendant made arrangements through the Veterans’ Administration to he sent to the Will Rogers Memorial Hospital for examination and possible treatment. While there, he was examined by Doctor Prosser who was a psychiatrist for the hospital.

The defendant had introduced evidence by several nonexpert witnesses that in their opinion at the time of the homicide, the defendant did not know right from wrong, and in addition introduced Doctor Galbraith as an expert psychiatrist who further supported this theory of the defense. The state offered the witness, Doctor Prosser, in rebuttal to the testimony of Doctor Galbraith but the defendant contended that he was an incompetent witness and that the personal examination was a privileged communication and therefore inadmissible in evidence.

The statute relied upon is1 Tit. 12 O.S. 1911 § 385 which provides:

“The following persons shall be incompetent to testify: * * *
“A physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient: Provided, That if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if an attorney, clergyman or priest, physician or surgeon on tlie same subject, within the meaning of the last three subdivisions of this section.”

The state contends that Doctor Prosser was a competent witness under the statute for the reason that the defendant had taken the stand and testified on the same subject and further contends that where a patient is treated or examined by one or more physicians and one of the physicians is called by the defendant to testify as to the results of his examination, it constitutes a waiver of' the privilege given by the statute as to all other physicians who attended the defendant, even though the-other physician attended at separate and different times than the physician called to testify by the defendant.

In 62 A.L.R. at page 685, is an extensive annotation on this subject sustaining the contention of the state. We quote in part from that annotation:
“In some jurisdictions it is held that a waiver of the privilege as to one of several physicians attending the patient waives such privilege as to all of such physicians, whether they attend him in consultation and together, or whether they attend him singly and at different times. Chaffee v. Kaufman (1923) 113 Kan. 254, 214 P. 618; State v. Long (1914) 257 Mo. 199, 165 S. W. 748; Weissman v. Wells (1924) 306 Mo. 82, 267 S. W. 400; O’Brien v. Western Implement Mfg. Co. (1910) 141 Mo. App. 331, 125 S. W. 804; Oliver v. Aylor (1913) 173 Mo. App. 323, 158 S. W. 733; Michaels v. Harvey (1915) Mo. App., 179 S. W. 735 (later appeal in (1917) Mo. App., 195 S. W. 519) ; McPherson v. Harvey (1916). Mo. App., 183 S. W. 653; Priebe v. Crandall (1916) Mo. App., 187 S. W. 605, Capron v. Douglass (1908) 193 N. Y. 11, 85 N. E. 827, 20 L.R.A., N.S., 1003; Hethier v. Johns (1922) 233 N. Y. 370, 135 N. E. 603 (overruling decision in (1921) 198 App. Div. 127, 189 N.Y.S. 605) ; Dewey v. Cohoes & L. Bridge Co. (1915) 170 App. Div. 117, 155 N.Y.S. 887; Kraus v. M. & G. W. Corp. (1922) 203 App. Div. 582, 196 N.Y.S. 845; Fennelly v. Schenectady R. Co. (1922) 201 App. Div. 211, 193 N.Y.S. 641; Cretney v. Woodmen Acci. Co. (reported herewith), [196 Wis. 29, 219 N.W. 448, 62 A.L.R.] 675.”
“In Capron v. Douglass (1908) 193 N.Y. 11, 85 N. E. 827, 20 L.R.A., N.S., 1003, the physicians were in consultation, and the facts of the case bring it within the exception to the general rule, but the court, after observing that it preferred to place its decision upon broad-. er ground, said: ‘This action, as we have seen, was for malpractice. The plaintiff, both in his complaint and in his testimony, has fully disclosed all of the details of his affliction as it existed both at his home and at the hospital. He has given in much detail how the fractures occurred, how they were treated, his pain and suffering, and, so far as he was able to comprehend when not under the influence of anesthetics, the particulars of the operation at the hospital. He himself has therefore given to the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus removing it from the operation of the statute. In other words, he has waived in open court upon the trial all information which he might have kept secret, by disclosing it himself. The character of the action necessarily calls for a disclosure of his condition and the treatment that was adopted by the defendant and those assisting him. To hold that the plaintiff may waive the privilege as to himself and his own physicians, and then invoke it as to the defendant and his physicians, would have the effect of converting the statute into both a sword and a shield. It- would permit him to prosecute with the sword, and then shield himself from the defense by the exclusion of the defendant’s testimony. It would enable the plaintiff to testify to whatever he pleased with reference to his condition and the treatment adopted by the defendant, without fear of contradiction. The plaintiff could thus establish his cause of action, and the defendant would be deprived of the power to interpose his defense, by reason of the closing of the mouth of his witnesses by the provisions of the Code referred to. Such a construction of its provisions, we think, was never contemplated by the legislature. It would lead to unreasonable and unjust results. Instead thereof, a construction of the provisions of the Code to the effect that when the privilege of the plaintiff has once been waived by him in court, either by his own testimony or by that of others given with his knowledge and consent, and his physical condition has been given to the public, the door is then thrown open for his opponent to give the facts as he understands them. This, to our minds, affords a more just and equitable rule, and is the one that was evidently contemplated by the Legislature.’
“In Epstein v. Pennsylvania R. Co. (1913) 250 Mo. 1, 156 S. W. 699, 48 L.R.A., N.S., 394, Ann. Cas. 1915A, 423, while the physicians attended the patient in consultation, the court seems to have decided the case upon the general ground that the patient, having opened the case himself, had thereby lost all right of secrecy as- to his ailments, and in support of said ground quotes Wigmore on Evidence, vol. 4, § 2389, as follows: ‘Certainly it is a spectacle fit to increase the layman’s traditional contempt for the chicanery of the law when a plaintiff describes at length to the jury and a crowded court room the details of his supposed ailment, and then neatly suppresses the available proof of his falsities by wielding a weapon nominally termed a privilege.’
“Objections to the testimony of a physician touching the mental incompeteney of a testator, when such physician’s information was acquired through his professional attendance on the testator, is waived when the defendant, who objects to such testimony, introduces as witnesses on his own behalf other physicians who similarly acquired their information and who likewise testified to the mental capacity of the testator. Chaffee v. Kaufman (1923) 113 Kan. 254, 214 P. 618.
“And if a patient is suffering from a given malady, ■and is treated by several physicians for the selfsame trouble or malady, and she and one of her physicians, with her consent, make public the character of her trouble, she has waived the right longer to keep the exact character of that trouble further secret, and the other physicians are competent to testify as to what the malady or trouble was in reality; any other rule would be but to permit a patient in a court of justice to play both fast and loose.. State v. Long (1914) 257 Mo. 199, 165 S. W. 748.
“It has been held, also, that the plaintiff in a personal injury action, who by her own testimony, and that of one of her physicians, goes fully into the subject of her maladies, exposing everything and concealing nothing, waives any objection she might have to the testimony of another physician who had attended her during the preceding year, and whose testimony would tend to prove that the malady of which she complained had not been caused by the injury, but was one of long standing. McPherson v. Harvey (1916) Mo. App., 183 S. W. 653. And under such circumstances where several physicians have treated the patient for the same trouble, it can make no difference that the treatment was at different dates.”

The Oklahoma statute hereinabove quoted recognizes that if the person offers himself as a witness, or offers a physician as a witness who testifies on the same subject, such action constitutes a waiver of the privileged communication.

The record discloses that the defendant testified at length concerning what his physician described as abnormal conduct, which included everything from (bed wetting as a boy) to running berserk in Japan on one occasion while with .some companions after the end of the war because of an overdose of Japanese intoxicating liquor.

Doctor Hugh Galbraith, the physician who testified on behalf of the accused, related the symptoms as given to him by the defendant and the members of the defendant’s family, and from this history he expressed an opinion that the defendant did not know right from wrong or the nature and consequences of his act at the time of the commission of the homicide.

An examination of the record shows that Doctor Pros-ser did not testify to any fact discovered by him in talking to the accused at the time he was admitted to the Will Rogers Memorial Hospital which was not discussed by Doctor Galbraith. It just happened that the two eminent Doctors used the same facts but arrived at different conclusions. Doctor Prosser stated that, in his opinion, the defendant was suffering from what he termed as chronic emotional instability and further stated at the time of the homicide he was of the opinion that the defendant was capable of distinguishing light from wrong and knew the nature and consequences of his acts on that date. Doctor Prosser further stated that it was his opinion that the defendant at the time of the fatal altercation was in a rage reaction, or a period of unbridled temper.

It is our conclusion that when the defendant testified with ’ reference to certain physical ailments which his Doctor stated were symptoms of insanity, and when he called as a witness an examining physician on the same subject, it constituted a waiver of the defendant’s right to object to the testimony of any other physician who examined him on this particular subject. The Supreme Court of Oklahoma has so held in many cases. Roeser v. Pease, 37 Okla. 222, 131 P. 534; Fulton-Morris Coal & Mining Company v. Mitchell, 37 Okla. 575, 132 P. 1103, 1104; City of Tulsa v. Wicker, 42 Okla. 539, 141 P. 963; Lazzell v. Harvey, 174 Okla. 86, 49 P. 2d 519.

In Roeser v. Pease, supra, [37 Okla. 222, 131 P. 537] the Supreme Court of Oklahoma stated:

“If she can go upon the witness stand and testify that she had not suffered from these afflictions prior to the accident, and then prevent the only available impeaching testimony from being disclosed, by a claim of privilege, it would seem that a mockery is being made of justice, and we do not think our statute contemplates such a condition. The theory upon which the privilege is based is that a person is entitled to have his physical disabilities protected from public curiosity. If, however, he goes into a court of justice and bases an action upon the existence of a physical disability, and testifies himself as to its existence or non-existence, he, of course, is not entitled longer to claim a privilege for his condition, and the statute does not contemplate protecting him in such case. An interesting discussion of the subject is contained in the fourth volume of Wigmore on Evidence, §§ 2380, et seq.”

We do not think that the case of Clapp v. State, 74 Okla. Cr. 144, 124 P. 2d 267, which is cited and relied upon by the defendant as authority to sustain this proposition, is in point becafuse of a different factual situation.

The next two propositions of the defendant because they are so closely related will be considered together. The alleged error of the court consists in admitting purported threats made by the defendant against one G. W. Lamb and sisters of the witness, Doris Lamb. Also an alleged error of the court in permitting evidence of such threats after a prior ruling at the beginning of the trial that such threats would not be permitted unless the defendant’s good reputation was placed in issue by the defense and that by reason of the action of the court the defendant was induced to release his character witnesses from attendance at the trial.

On cross-examination, the defendant was asked if he did not have a conversation with Doris Lamb about three weeks before the fatal difficulty in which he told Doris that he was quicker on the trigger than her father and threatened Doris’ two sisters if they did not refrain from interfering with his relationship with Doris. On redirect examination he stated that Doris had told him that her Daddy wanted her to stay at home and that if she went with him she would have to slip off and go and that she was afraid that her father might get his gun and shoot him or something, and that he answered her “I think I am as quick on the trigger as he is”. As regards the sisters of Doris Lamb, he said that in the same conversation Doris mentioned that her sisters might try to kill him, and he told her he would protect himself and that if they tried to kill him he would kill them.

In rebuttal, Doris Lamb testified that defendant said he was just as quick on the trigger as her Daddy and that he would get her sisters if he had to, but that he did not qualify his remarks with the statement that he would do those things if they were after him.

Both counsel for the state and defendant remarked in their brief that they doubted that the statements made by the defendant constitutes threats at all. If they did not constitute threats, evidence of the same was probably inadmissible but could hardly be termed as prejudicial error.

It is established law that threats of a general nature against a class may be shown, although not particularly directed against the deceased if the class of persons against which the threats are directed includes the deceased. Underhill’s Criminal Evidence, 4th Ed., page 1124; Sears v. State, 27 Okla. Cr. 311, 227 P. 899; Smith v. State, 49 Okla. Cr. 339, 293 P. 569; McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358; Gross v. State, 26 Okla. Cr. 105, 222 P. 275.

From all the facts and circumstances shown in the record, it is apparent that the defendant had a great attachment for Doris Lamb and was extremely jealous of anyone who in any way might attempt to interfere with his relationship to her.

We doubt that the alleged threats were so indefinite and broad enough to amount to a threat against a class. They were directed to the father and sisters of Doris Lamb, and were not of a general nature. It would appear that a specific threat made to a third person and not to a class of persons of which the deceased was a member would be inadmissible as evidence.

At the beginning of the case during the opening statement of counsel for the state, objection was interposed by counsel for the defendant to statements by the prosecutor concerning the above alleged threats by the defendant directed to members of the Lamb family. The court sustained the objection but stated that they might become material later. At the time the evidence of the alleged threats was introduced in rebuttal by the state, counsel for the defendant contended that he had excused a number of his character witnesses on the theory that as he understood the ruling of the court, the evidence of the alleged threats would not be admitted unless the defendant placed his character in issue..

There is nothing in the record to sustain this conclusion of counsel for the defendant as to the reasons of the court for sustaining the objection to the prosecutor’s statement about the alleged threats in the opening statement to the jury. However, irrespective of that, when the objection was interposed to the admissibility of the threats in rebuttal on that particular ground, the court advised counsel for the defendant that the courtroom was filled with people from Grandfield, and that if the particular witnesses were not there, he would recess court long enough to enable counsel for the defendant to secure their attendance. This specific ground of the objection to the admissibility of this evidence may not be sustained. However, we shall further discuss the admissibility of this evidence in connection with the contention of the counsel for defendant that the punishment assessed was excessive.

Complaint is made that the court erred in allowing the prosecutor to read an excerpt from the American Bar Journal to the jury on the duty of jurors. When the prosecutor in his closing argument started to read the questioned article, objection was interposed by counsel for defendant. The article was then shown to the court and after the court had read same, he directed the court reporter to place it in the record. This article reads:

“I am a juror.
“I am a seeker after truth.
“I must listen carefully and with concentration to all the evidence.
“I must heed and follow the instructions of the court.
“I must respectfully and attentively follow the arguments of the lawyers and dispassionately seeking to find and follow the silver thread of truth through their conflicting assertions.
“I must lay aside all bias and prejudice.
“I must be led by my intelligence and not by my emotions.
“I must respect the opinions of my fellow jurors, as they must respect mine, and in a spirit of tolerance and understanding must endeavor to bring the deliberations of the whole jury to agreement upon a verdict;
“I must never assent to a verdict which violates the instructions of the Court or which finds as a fact that which, under the evidence and in my conscience, I believe to be untrue.
“In fine, I must apply the Golden Rule by putting myself impartially in the place of the plaintiff and of the defendant, remembering that although I am a. juror today passing upon the rights of others, tomorrow I may be a litigant whose rights other jurors shall pass upon.
“My verdict must do justice, for what is just is True and righteous altogether’; and when my term of jury service is ended, I must leave it with my citizenship unsullied and my conscience clear.”

Trial courts should be extremely careful in allowing counsel to read articles to a jury during their closing, argument. Chiefly for the reason that it might constitute conveying to them matters de hors the record. We do not believe, however, that the contention of defendant that the reading of this article and its incorporation in the record constituted a further instruction containing an abstract statement of the law should be sustained.

Finally, it is contended that the punishment imposed upon the defendant is unreasonable and excessive. After a thorough consideration of all the facts, including the ruling of the court on the controverted legal questions hereinabove mentioned, we have come to the conclusion that this proposition is meritorious, and that the judgment and sentence assessed against the defendant should be reduced. In this connection, we feel that the assignments of error hereinabove discussed, and particularly the one with reference to the alleged misconduct of the court and the jury after the submission of the case concerning the question of the length of a calendar year in the penitentiary, the question of the admissibility of the photographs of the deceased taken when he was 16 years of age, and the admission in rebuttal of threats made against a specific individual, considered with all the other facts, prompts us to give relief on this proposition of law. In doing so, we are giving the defendant the benefit of every doubt. We think, under the evidence, the jury was fully justified in fixing the punishment at 30 years imprisonment, but considering the age, the war record, the conceded evidence of emotional instability, the errors of law committed during the trial have forced us to conclude that justice would be served by modifying the sentence from a term of 30 years imprisonment in the State Penitentiary to a term of 20 years imprisonment in the State-Penitentiary, and the judgment and sentence as thus modified is affirmed.

BAREFOOT and BRETT, JJ., concur.


text:
    TIP ODELL v. STATE.
    No. A-10970.
    April 27, 1949.
    (206 P. 2d 229.)

      Clayton Carder, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Tip Odell, was charged in the county court of Kiowa county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail, and pay a fine of $250, and has appealed.

The single proposition presented by the appeal is that the misconduct of the jury prevented the defendant from having a fair and impartial trial.

In the amended motion for a new trial, the defendant contended that he was prevented from having a fair and impartial trial by reason of the fact that one of the jurors, George B. Lester, in his voir dire examination, denied that he knew the defendant, when in truth and in fact he was present in court as a juror on December 15, 1942, when the defendant was charged and convicted of another offense involving a violation of the prohibitory law, although Lester did not serve upon the jury which convicted the defendant; and that the juror knew the defendant and the results of that trial; that neither defendant nor his counsel were aware of the situation of the juror, and did not ascertain such facts until after the submission of the case and the verdict of the jury.

At the time of the hearing on the motion for new trial, evidence was presented by the defendant in support of his motion^ This evidence consisted of testimony by the court clerk identifying the records in his office which showed that the juror, George B. Lester, who served on the jury which convicted the defendant in the instant case, had been summoned as a juror in the year 1942, at a time when the defendant was convicted in another prohibitory law violation and sentenced to serve 30 days in the county jail and pay a fine of $200; that the jury list in the case where the conviction was sustained in 1942, does not contain the name of George B. Lester as one of the jurors who served in the trial of that case.

Counsel for defendant then made a statement into the record as follows:

“The Juror, George B. Lester, who served on the trial jury in the present case was asked on preliminary examination, touching his qualifications and competency, along with the other Jurors, whether or not he knew or was acquainted — the exact words used not being remembered — • with the defendant, Tip Odell, and the Jurors that knew him were requested to hold up their hands. And the Juror Lester gave no indication that he was acquainted with the defendant, and that the first information that came of the situation that has heretofore been put in evidence, was by conversation between the Juror and myself, which occurred after the rendition of the verdict in this case, and after the filing of the original Motion for New Trial.”

In the case of Vanderslice v. State, 59 Okla. Cr. 192, 57 P. 2d 267, 268, it is held:

“Where a new trial is asked upon the ground that a juror who served upon the jury was prejudiced against the defendant, which prejudice was unknown to the defendant prior to the rendition of the verdict, to entitle the defendant to a new trial it must not only be shown that the said juror was prejudiced, but it must also appear that the defendant suffered an injustice by reason of the said juror having served upon the said jury.”

In the early case of Smith v. State, 19 Okla. Cr. 14, 97 P. 514, 516, the defendant sought a new trial upon the ground that the juror, Wheat, was prejudiced, and in support of this contention attached to his motion the affidavits of two persons who swore that the juror had expressed an opinion prior to the trial as to the guilt of the defendant.

In the body of the opinion it is stated:

“Is Wheat shown to have been such a disqualified juror * '* *? It is certainly true that under the Constitution and laws of this state the defendant must be accorded a fair and impartial trial, and the impartiality of the jury goes to the very foundation thereof, but in order to prevail in a motion for a new trial on account of the prejudice of a juror serving on the jury in the trial of the case, it must not only be shown that the juror was prejudiced against the defendant, but it also must be made to appear from the whole case that the defendant suffered an injustice from the fact that the juror so. served. There is evidence, though in conflict, sufficient to establish the guilt of the defendant beyond a reasonable doubt of the offense of which he was properly convicted, and we are unable to see that it appears from the whole record that the defendant was denied a fair and impartial trial by reason of Wheat having served upon his jury.
“In the case of Horton v. State, 10 Okla. Cr. 294, 136 P. 177, it is held:
“ ‘As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the defendant) until after conviction, unless it appears from the whole case that the defendant suffered injustice from the fact (.hat the juror served in the case.’ ”

We do not believe that the evidence introduced by the defendant, Odell, is sufficient to show that the juror, Lester, was acquainted with the defendant, much less that he was prejudiced against him. The defendant, Odell, in testifying at the hearing on motion for new trial, swore that be did not know tbe juror, Lester. However, if it should be assumed that tbe juror, Lester, knew tbe defendant and knew of bis prior conviction as contended by tbe defendant, still sucb fact does not create an inference that tbe juror was prejudiced against tbe defendant, and certainly there is nothing in tbe record by which we could say an injustice bad been done tbe defendant by reason of this juror serving on tbe jury which convicted tbe defendant. Tbe evidence showed that certain officers of Kiowa county, armed with a valid search warrant, went to tbe premises of defendant while tbe defendant was there present, made a search and found 41 pints of whisky. No evidence was offered on behalf of defendant.

Tbe judgment and sentence of tbe county court of Kiowa county is affirmed.

BAREFOOT and BRETT, JJ., concur.


text:
    BUSTER LEE GIBSON et al. v. STATE.
    No. A-10976.
    April 27, 1949.
    (206 P. 2d 238.)

      Owen F. Renegar, of Oklahoma - City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Buster Lee Gibson and Amos Cecil Zeigler were charged in the district court of Oklahoma county with the crime of larceny by fraud; were tried, found guilty by a jury, and their punishment fixed by the court at five years each in the State Penitentiary. From the judgments and sentences rendered, the defendants have appealed.

The state offered the testimony of three witnesses. The prosecuting witness, Carlton Amos Stice, 22 years of age, testified that he arrived in Oklahoma City from St. Louis, Mo., where he had been working, about 7:30 on the morning of August 1, 1946, on his way to his home in Marietta, Okla. He had $330 in his shoe. He had about one hour to wait on his bus to Marietta, had been up the greater part of two nights, and went to sleep on a bench in the Union Bus Station. He had only been asleep a few minutes when the defendant Buster Lee Gibson awoke him, and engaged him in conversation. Gibson, who introduced himself as Jimmy Hodges, told witness that he was from Dallas, and was going out on the same bus as the witness. He then invited the witness to go up the street with him for a cup of coffee and the witness accepted his invitation. They had walked about three blocks from the bus station when the defendant Zeigler walked up behind them and asked about a hotel. He told them he was from Arkansas, had $400 and wanted to go out and have a good time. Witness had never seen either of the defendants before. Zeigler suggested that they match money, and witness told them he did not know anything about matching. Gibson urged the witness to go ahead and match, assuring him, out of the hearing of Zeigler, that if he lost, he, Gibson, would tell Zeigler that Gibson owed the witness, and witness could not lose any money. Witness agreed, and they matched for one dollar on two occasions, and Gibson won the money each time. They then matched for $10 twice, and Gibson again won each time, but witness was not called upon to pay anything to Gibson at any time. Zeigler then offered to match “all he had,” claiming he had about $400. Gibson urged witness to: “Come on, we will win some money now. You won’t have to pay anything. I will tell you what, I will tell him that if you lose — I will tell him that you have been working for me, and in that way, you won’t have to pay any money.” They matched, and Gibson again won, and Zeigler told the witness to pay Gibson or he would call the officers. Witness took his money out of his shoe and gave it to Gibson, expecting to get it back, but Zeig-ler made Mm leave the scene. Witness left,- and in a short time found an officer and reported the transaction. The officer took witness in his car and they found the two defendants together, a few blocks away, trying to hail a taxicab. The defendant Gibson had the money, and when the officer and Stice got out of the police car, Gibson attempted to put the money in Stice’s pocket and the officer took possession of the same. Zeigler started to run, but was stopped by the officer. They were all three taken to the police station, and the $330 held by the officers and introduced in evidence. Zeig-ler, when searched, had about $80.

Two police officers testified for the state. Howard O. Hilbert, a detective, and who had been with the police department 14 years, testified that he was driving down the street near the Union Bus Station and saw the defendant Zeigler standing on the corner. He then saw Gibson and the prosecuting witness, and recognized Gibson. He turned around as soon as he could and went back to make an investigation. As he neared the place where he had seen Gibson and Stice, he was stopped by Stice, who told him his story. Hilbert took Stice in his car, and a few blocks away they found the two defendants out in the street, trying to stop a taxicab.

The other detective who testified was at the police station Avhen the three were brought in, and identified the defendants and witness, and the envelope in which the $330 was placed.

The defendants offered no testimony whatever.

As stated in the brief of the state, counsel for defendants does not in his brief refer to any specific assignment of error, but apparently devotes his argument to assignments 2 and 7 of the petition in error, which are as follows:

“2. Said court erred in overruling demurrer to the information.”
“7. Said court erred in the proceedings wherein these plaintiffs-in-error. were tried under a purported charge, to-wit: ‘Larceny by fraud’, which purported charge does not exist, and is not defined and set forth in the statutes of this state.”

In his brief, counsel for defendants state that “our first contention is that no crime as provided by statute was charged in the information and that is a fatal error”; and: “we finally submit that the verdicts in this case do not mean anything and are totally inadequate.”

A greater part of defendants’ brief is addressed to the proposition that there is no such crime in the statutes of Oklahoma as “larceny by fraud.” Counsel quotes sections 1701 and 1708 of Title 21 O.S. 1941, in which larceny, and the degrees of larceny are filed. These sections are:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”
“Larceny is divided, into two degrees; the first of which is termed grand larceny, the second petit larceny.”

We cannot agree with defendants’ contention that the crime of larceny by fraud “does not exist and is not defined and set forth in the statutes of this state.”

The statute plainly states that larceny may be accomplished by fraud or stealth, and the fact that the name given to the crime in the information was more specific than was necessary does not vitiate the information. The information here specifically charges the defendants with fraudulently and feloniously taking $330 in good and lawful money of the United States from the true owner, Carlton Amos Stice, “with the unlawful, wilful, fraudulent and felonious intent then and there of them, the said defendants, to deprive the said Carlton Amos Stice permanently thereof, and to convert the same to their own use and benefit.”

In the early case of Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033, this court held:

“Where in an indictment for larceny the property is charged to have been taken by fraud, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud.”

And in the body of the opinion, Judge Doyle says:

“We think the information sufficiently charges the crime of larceny by fraud.”

In Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312, the court said:

“To constitute ‘larceny by fraud’ the allegations in the information must set out and the facts disclosed at the trial must show the existence of a fraudulent purpose and intent upon the part of the taker to appropriate the property to his own use and deprive the owner thereof at the time the same comes into his possession, and that fraudulent representations were made to the owner to induce him to part with the possession of the property.”

Considering all of the facts and circumstances surrounding the taking of the money by the defendants from the owner, they are sufficient to show the felonious intent of the defendants at the time of the taking, and that it was taken by fraud, with the design then entertained to deprive the owner thereof.

In Welch v. State, 78 Okla. Cr. 180, 146 P. 2d 141, 145, this court said:

“We have in this state a statute which makes larceny by fraud a crime. It is Tit. 21 O.S.A. 1941 § 1701.”

See, also, Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712, 713, and Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95.

It is our opinion that the court did not err in overruling the demurrer to the information.

Defendants complain that the verdicts rendered in this case “do not mean anything and are totally inadequate.” We do not think this contention of counsel is tenable. The appellants, were jointly charged, prosecuted and tried together; the court fully instructed the jury as to the charge against the defendants and as to larceny, giving the statutory definitions of grand and petit larceny; and further instructing them on larceny by fraud as defined by this court many times: The jury returned a verdict as to the defendant Gibson as follows:

“We the jury empaneled and sworn in the above entitled cause do upon our oaths, find the defendant Buster Lee Gibson guilty and leave his punishment to be fixed by the court.”

An identical verdict was returned against the defendant Amos Cecil Zeigler.

In Fowler v. State, 26 Okla. Cr. 170, 223 P. 206, 207, this court held:

“Failure of a verdict to name the offense of which the jury found the defendant guilty does not invalidate it, if from its language, as a whole, no doubt can arise as to the offense of which he was convicted.”

Citing Bowlegs v. State, 9 Okla. Cr. 69, 130. P. 824. See, also, Love v. State, 12 Okla. Cr. 1, 150 P. 913; Nance v. State, 13 Okla. Cr. 217, 278 P. 357; Medley v. State, 81 Okla. Cr. 212, 162 P. 2d 881, and cases cited.

We think the defect here is not sufficient -to affect the substantial rights of the defendants. They were present,.their counsel was there, and these verdicts were read, and read in their hearing, and no objection made. This court, in Coleman v. State, 16 Okla. Cr. 579, 194 P. 282, held that a verdict, defective in form, but which expressed the intention and purpose of the jury, should have been objected to when returned, and thereby the attention of the court called to its defective form, and an opportunity given for its correction. This decision has been followed since that early case.

In Medley v. State, supra, this court held [81 Okla. Cr. 242, 162 P. 2d 882] :

“The language of the verdict, being that of day people/ need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments -will be made to support it.”

And:

“Strict technical rules of construction should never be applied to the verdict of a jury. Their verdict should receive a commonsense construction, and, if it is possible to arrive at the intent and purpose of the jury, the verdict should be upheld.”

From the entire record, we think the verdicts of the jury are sufficiently definite and certain as to the offense of which the defendants were convicted, and that they are, in fact, verdicts of guilty of larceny by fraud. There is nothing in the record to raise a reasonable doubt upon this question.

Our conclusion is that the defendants had a fair, impartial and legal trial, and the judgments of conviction are manifestly just. The judgment of the district court of Oklahoma county is, therefore, affirmed.

JONES, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    Ex parte EARL BIBBINS.
    No. A-11202.
    April 27, 1949.
    (206 P. 2d 242.)
    Earl Bibbins, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

The petitioner herein filed Ms petition for a writ of habeas corpus in this court seeking Ms release from the State Penitentiary. He alleges that he is unlawfully restrained of his liberty by O. P. Burford, warden of said penitentiary, under and by virtue of a judgment and sentence made and entered in tbe district court of Osage county, Okla., on tbe 2nd day of April, 1945. Petitioner does not attack tbe jurisdiction of tbe district court of Osage county as being improper in tbe bearing of tbe case as referred to but does attack the judgment of tbe court in said cause. He alleges that tbe judgment and sentence is excessive in that be was convicted of burglary in tbe second degree only, and that he was sentenced to 10 years in tbe penitentiary. He alleges tbe crime of which be was adjudged guilty was burglary, second degree, for which tbe maximum punishment is seven years. He further alleges that the question of tbe additional words “second offense” never arose before tbe trial, during tbe trial nor afterwards, until tbe petitioner made written request for tbe records of bis trial. He says that an order nunc pro tunc was issued after tbe petitioner’s commitment in tbe penitentiary, which order was issued solely to vindicate tbe irregular action of tbe court after tbe petitioner made written request for copies of tbe same, not before; and that bis commitment papers on file at tbe State Penitentiary were not altered to read “second offense”, but read only “burglary second degree”, and recorded a sentence of 10 years. Tbe alleged excessiveness of tbe judgment and sentence is tbe only question of merit presented by tbe petition. All tbe other questions are questions that should have been raised upon appeal and are not proper matters for consideration on habeas corpus. In connection with tbe question raised as to tbe excessiveness of tbe judgment and sentence reference to In re Earl Bibbins, 82 Okla. Cr. 234, 168 P. 2d 311, 312, a prior consideration of this question, therein raised, shows that this contention is without merit. Therein it appears:

“The exhibits attached to the petition, the response, and the record, reveals that the petitioner was charged by information filed in the district court of Osage county on December 27, 1944, with the crime of burglary in the second degree, and was also charged as a second offender, with having been previously convicted in Osage county, Okla., on November 14, 1941, of the crime of petty larceny, and having served a term of ten days in the county jail; and with having been previously convicted in Osage county, Okla., on June 21, 1937, of the crime of burglary in the second degree, and having served a term of two years in the State Reformatory at Granite, Okla.
“Petitioner was represented by able counsel and entered a plea of not guilty. He was tried before a jury, found guilty, and also that he was a second offender, and judgment and sentence was assessed against him by the court at ten years in the State Penitentiary. Motion for new trial was filed and overruled, and no exception was taken, and no appeal was filed by petitioner.
“Under the above statement, this case comes clearly within the rule so often announced by; this court that an appeal can not be considered upon a petition for ha-beas corpus. It is only when the judgment and sentence is void that relief will be given by habeas corpus.
“Petitioner has presented the question in this case that he was sentenced for a term of ten years, and that the statute, 21 O.S. 1941 § 1436, fixes the maximum punishment for conviction of second-degree burglary at seven years in the penitentiary.
“In making this contention, defendant overlooks the fact that the ‘habitual criminal’ statute, 21 O.S. 1941 § 51, provides that one having been previously convicted of a felony, upon subsequent conviction of the offense of burglary in the second degree may be sentenced to a term of ten years in the penitentiary. This is the minimum punishment prescribed by the statute. We have recently passed upon this question in the case of Claude Taylor v. State, 82 Okla. Cr. 49, 166 P. 2d 108.”

Under the condition of the record herein involved, it is apparent that the court had jurisdiction of the person of the defendant, jurisdiction of the subject matter, and authority under the law to pronounce the judgment and sentence imposed. This court has held that the inquiry in habeas corpus is limited to these questions. Ex parte Franks, 88 Okla. Cr. 128, 200 P. 2d 778; Ex parte Custer, 88 Okla. Cr. 154, 200 P. 2d 781; Ex parte Cartwright, 88 Okla. Cr. 206, 201 P. 2d 935; Ex parte Hampton, 87 Okla. Cr. 416, 198 P. 2d 751.

The petitioner’s petition herein raises no new questions, the subject of consideration in habeas corpus not heretofore determined in Be Earl Bibbins, supra.

Relative to the matters raised which might have been raised on appeal, this court has repeatedly held that the writ of habeas corpus may not be used as a substitute for appeal. Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613. In Ex parte Roy Whitson, 70 Okla. Cr. 79, 104 P. 2d 980, 981, this court said:

“It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.”

It is apparent that the facts alleged in the petition as the basis for a writ of habeas corpus would not warrant the granting of the writ, and under such conditions this court has repeatedly held that the writ of habeas corpus must be and hereby is denied.

JONES, P. J., and BAREFOOT, J., concur.


text:
    HARRY MILLER v. STATE.
    No. A-10979.
    May 4, 1949.
    (206 P. 2d 245.)
    John L. Ward, Jr., of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., and Elmer Adams, Co. Atty., Tulsa County, of Tulsa for defendant in error.
   BAREFOOT, J.

Defendant, Harry Miller, was charged in the court of common pleas of Tulsa county with the offense of unlawful possession of intoxicating liquor, to wit: 54 pints and 49 4/5ths quarts of assorted whisky; was tried, convicted and sentenced to pay a fine of $250, and to serve 90 days in the county jail, and has appealed.

Two deputies from the sheriff’s office of Tulsa county procured a search warrant for the purpose of searching “a certain black Ford sedan automobile, bearing Oklahoma license No. 2-3755.” There is no question as to the proper description of the automobile. It was located by the officers at the Tulsa Auto Hotel. When found the car was locked. One of the officers remained with the car, and the other went to the manager of the auto hotel, and he telephoned the defendant, the owner of the car. The defendant came to the auto hotel immediately, produced the keys and opened the car, and the whisky above described was found therein. Defendant was arrested and the charges, above stated, were filed against him.

The defendant filed a motion to suppress the evidence, in which it was claimed that the search was illegal and void for the reason that the defendant was asked by one of the deputies to open the car, and that the officers did not see the whisky in the car prior to searching the same, and that they did not know that the car contained whisky prior to the search. Evidence was presented on the motion to suppress, and we have carefully examined the same, together with the case of Bohannon v. State, 66 Okla. Cr. 190, 90 P. 2d 675, the case relied upon by the defendant in his brief.

A careful reading of the Bohannon case reveals that the facts in that case are in no way comparable to the facts in the instant case. That was a case where the defendant was charged with the unlawful transportation of intoxicating liquor. Here the defendant is charged with the unlawful possession. The facts are entirely different.

If the defendant in the case at bar had been arrested and search conducted without the aid of a search warrant, the question raised by defendant would present a more serious question.. But the search warrant was for the purpose of searching the Ford automobile. The officers had the right to search the car under the warrant, and if necessary, had the right under the law to have forcibly entered the car for the purpose of making the search. The officers no doubt did not desire to injure or damage the car, and the defendant probably unlocked it in order to keep the officers from damaging the same. The evidence sustains this assertion. As to the ownership of the car, and the contents thereof, the defendant at the time evidence Avas taken on the motion to suppress, testified that he was the owner thereof.

From the above statement, we are of the opinion that the court did not err in overruling the motion of defendant to suppress the evidence secured by reason of the execution of the search warrant.

The only serious question raised by the defendant, in his assignments of error is that the court erred in giving instruction No. 8. In support of this contention, defendant cites the cases of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, and Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476.

In the above cases the court had under consideration an instruction given by reason of Tit. 37 O.S. 1941 § 82, which provides that the having in one’s possession in excess of one quart of intoxicating liquor “shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquor.” The court held that the giving of an instruction somewhat similar to the instruction No. 8 in the instant case, was erroneous, as placing the burden of proof upon the defendant, and those cases were reversed for that reason. In each of these cases an exception was taken to the giving of the instruction. We have carefully examined the record in this case, and do not find that any exception was taken by defendant to the giving of any of the instructions, and no requested instruction was asked calling the attention of the court to this proposition. We have often held that a case will not be reversed by reason of an erroneous instruction where no exception was taken to the giving of the same, unless it was such as deprived the defendant of a substantial right or was in violation of a constitutional or statutory right. Rider v. State, 79 Okla. Cr. 43, 151 P. 2d 67; Gaddy v. State, 81 Okla. Cr. 236, 162 P. 2d 787; Dooley v. State, 82 Okla. Cr. 243, 168 P. 2d 651; Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638.

A number of other assignments of error are presented, but an examination of them does not reveal anything which causes us to believe that defendant did not have a fair and impartial trial.

For- the reasons above stated, the judgment of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    WILLIAM EDWARD MADDEN v. STATE.

      No. A-10981.
    May 4, 1949.
    (206 P. 2d 244.)

      Earl E. James, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is a purported appeal from a judgment and sentence pronounced against the defendant, William Edward Madden, in the court of common pleas of Oklahoma county on Juné 20, 1947, wherein the defendant was sentenced to pay a fine of |350 and serve 60 days’ imprisonment in the county jail upon a conviction of the offense of illegal possession of intoxicating liquor.

The appeal from said judgment and sentence was filed 120 days after the rendition of the judgment and sen-in this court on December 1, 1947, wbicb was more than tence, and therefore not within the period of time prescribed by law within which an appeal might be taken to this court from the judgment pronounced in a misdemeanor case. Tit 22 O.S. 1941 § 1054.

The failure to file the appeal in the Criminal Court of Appeals within the time allowed by statute is fatal to the appeal; the appellate court has no jurisdiction and no discretion to determine the appeal in such a case. Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870; Estes v. State, 74 Okla. Cr. 77, 123 P. 2d 288.

It is therefore ordered that the appeal be dismissed and the cause is remanded to the trial court with directions to enforce its judgment and sentence.

BAREFOOT, and BRETT, JJ., concur.