text:
    PLES MANN v. STATE.
    No. A-5457.
    Opinion Filed March 31, 1926.
    (244 Pac. 592.)
    G. W. Goad and John E. Leach, for plaintiff in error.

      George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction in the district court of Delaware county, rendered October 17, 1924, in pursuance of a verdict finding appellant guilty of manslaughter in the first degree, and assessing his penalty at imprisonment in the penitentiary for a term of 25 years.

The information charges that in said county, on or about the 27th day of June, 1924, “he, the said Pies Mann, then and there being, did then and there, unlawfully, feloniously, without authority of law, and with a premeditated design in him to effect the death of one Switch Foreman, shoot and discharge leaden bullets into the body of him, the said Switch Foreman, from a certain revolving pistol, which he, the said Pies Mann, then and there held in his hand, then and there, and thereby, inflicting upon the body of him, the said Switch Foreman, mortal wounds of which he, the said Switch Foreman, did languish, and languishing, did die on the 27th day of June, 1924; that the said Pies Mann did then and there, in the manner aforesaid, him the said Switch Foreman, kill and murder, contrary,” etc.

The errors assigned are that the court erred in overruling the demurrer to the information; that the verdict is contrary to law, and is not supported by the evidence; that the court erred in admitting incompetent evidence, and in refusing to admit testimony offered by the defendant, and erred in refusing to give certain requested instructions.

Obviously, the information is sufficient, and the demurrer thereto was properly overruled.

The record is voluminous. The transcript of the testimony covers more than 800 pages. However, there. is not much conflict in the evidence. We deem it sufficient in order to understand the questions presented to state the undisputed facts and the conflicting testimony. At the time of his death Switch Foreman was a resident of the little town of Oaks. He had lived in that community for a third of a century; an elderly man apparently, as it appears that he had five married daughters. Defendant, Pies Mann, lived in that community, and was a deputy sheriff. With J. J. Welch he had been cutting oats near town until about 4 o’clock in the afternoon. Then defendant drove the binder, and Welch drove the engine into town, stopping near Mr. Welch’s store. Defendant went into Welch’s; had a drink of soda water; then went into Les Carroll’s store, which is on the north side of the street. Les Carroll is defendant’s brother-in-law. Deceased was lying on a bench in Carroll’s store. Defendant told him to get up. Deceased jumped up, and defendant said, “Consider yourself under arrest,” and said, “If I had any way to take you to Jay, I would take you.” Deceased said, “You would play hell taking me anywhere.” Defendant took him by the arm and shoved him outside, and searched him; then led him across the street to Lamont’s store. Stopping at the porch, he asked Mr. Lamont if he could take Foreman over to Jay. Mr. Lamont said he could not on account of sickness. Deceased spoke up and said, “You don’t have to take me, I can go myself.” Defendant said, “You will have to go there next week.” Deceased said, '“All right.” Defendant took him by the arm. They started west. After proceeding 10 or 15 steps, a controversy arose, and defendant drew his gun and shot Foreman twice. One bullet entered the right shoulder. The other bullet entered the center of the body, about an inch below the breast bone. Deceased sank down on his knees, and defendant pushed him over on his back. He was dead before the bystanders reached him.

J. J. Welch testified that he saw defendant leading Switch Foreman across the street from Carroll’s to Lamont’s store. Defendant spoke to Lamont at the door, and then took Foreman by the arm, and they walked west towards Foreman’s home. After going a few steps,, they stopped, and defendant hit Foreman on the left side of the neck with his fist; then jumped back; pulled his gun; and shot him twice. Foreman had his hands up in front of his face. When the shots were fired, he sank down on his knees, and defendant put his foot on his breast, and shoved him over on his back.

Otis Rusk testified that he was standing at the blacksmith shop, and saw defendant holding Mr. Foreman by the arm, and leading him along; that he heard Foreman tell defendant that he did not have to take him home, or that he did not have to take him to Jay. Then defendant hit Mr. Foreman with his right hand, near the cheek or side of the face. Mr. Foreman staggered a little, and defendant stepped a little back, and said, “I will shoot you.” Mr. Foreman said, “Well, shoot,” and defendant shot him twice. When he fired the first shot, defendant said, “Now, damn you, go home,” and shot again. Mr. Foreman’s hands were up on a level with his face. That he was there when they searched his body, and they found a short pencil, some tobacco, and maybe a match in his pockets.

Tom Carrack testified that he was standing at the blacksmith shop, and saw defendant turn Foreman’s arm loose, and then hit him with his fist. Then defendant stepped back, pulled a pistol from his hip pocket, and shot Foreman twice. That, when defendant pulled his gun, he heard Foreman tell him to shoot. Foreman started to fall forwards, and defendant pushed him backwards with his foot.

Cal Lamont testified that he had been acquainted with defendant and deceased for about 25 years; first saw them that day in front of Carroll’s store. Defendant was searching Foreman by slapping the side and hip pockets of his overalls. Then defendant took Foreman by the arm, and came across the street to his store porch. Defendant asked him if he could take Foreman over to Jay. He told him he could not on account of sickness. Foreman spoke up, and said, “You don’t have to take me, I can go.” Defendant said, “You will have to go there next week.” Foreman said, “All right.” Defendant took him by the arm, and they started west. After going 15 or 20 steps, defendant hit Foreman on the side of the face or neck. Foreman wheeled around, and defendant stepped back, pulled his gun out of his right front pocket, and said “Go home.” Foreman said, “Shoot,” and defendant fired two shots. That, when defendant hit Foreman with his fist, Foreman put his hands up, and they were up when the second shot was fired.

Several other eyewitnesses testified, and their testimony is substantially the same, and to the effect that defendant searched the person of deceased when they came out of Carroll’s store.

For the defense the father of defendant testified that he had known Switch Foreman about 30 years, and met him that afternoon in Carroll’s store, and Foreman was drunk. That about an hour later he saw- his son holding Mr. Foreman by the arm and going towards Lamont’s store. That he talked with Mr. Lamont. In about five minutes he started from there west, holding Foreman by the shoulder, and all at once Mr. Foreman jerked loose, and they stood facing each other.' Mr. Foreman threw his right hand back, and his son jerked his pistol out and shot him twice. That he was the first man to reach Mr. Foreman. Then a big crowd gathered, includmg Mrs. Foreman and two of her daughters. Then the body was searched.

Les Carroll testified that Switch Foreman came into his store drunk, and was there about two hours, when defendant came into the store, and asked him how long Foreman had been there. He told him quite a bit, and defendant said, “Why don’t you make him go home?” and walked back to where Foreman was lying on a bench, and told him to get up from there. Foreman jumped up. Defendant said, “Consider yourself under arrest,” and said, “If I had any way to take you to Jay, I would take you.” Foreman said, “You would play hell taking me anywhere.” Defendant took him by the arm, and they went outside and across the street to Lamont’s store. In a few minutes they started down the street. The first thing he noticed was their hands go up, and Foreman hit defendant across the breast with his left hand. Defendant fired two shots, then hollered out, “You men come down here and see what I have done;” then stooped down and straightened Foreman’s leg out from under him. Defendant came back, and told him to ’phone Ben Smith, the sheriff. That defendant’s wife is his sister.

Pies Mann, defendant, testified:

“I live near Oaks, had been acquainted with Switch Foreman about 25 years. I was deputy sheriff. I went into Carroll’s store. He was lying on a bench. I slapped him on the hip, and told him to get up from there and go home. He said, ‘To hell with you.’ I said, ‘Well. I will just arrest you and take you to Jay.’ He said, ‘By God, you can’t take me any place,’ and I pulled him up, and pushed him out of the store. I tried to search him, and felt on his hip pockets, but he just kept pushing me away. I led him across the street to Lamont’s store, and asked Lamont if I could get him to take me and this fellow to Jay. Lamont said, ‘No,’ he could not go. Foreman said, T don’t have to go to Jay; if I do, I will go by myself.’ I said, T can’t take you this evening, but I will go and swear out a warrant for you and come back and get you. You will have to go home/ I caught him by the arm, and I led him off down the street. He said, ‘What are you taking me home for.’ I said, ‘Because you are drunk.’ He said, ‘You are a God damn liar,’ and he hit me in the stomach with his elbow. I pushed him back and hit him. He wheeled around and threw his hand in his pocket. He saw I had my gun out, and said, ‘Shoot, God damn you.’ I shot twice because I thought he was aiming to hurt me, you know, shoot me. I knew that he was a dangerous man, and I knew if he had a gun in that pocket he would shoot. When I fired the second shot he had his hand up. He let it fall, and kind of wheeled around, and fell right on his back with his left leg under him, I reached down and pulled it out. My father and Bill Bobbins came up. I said, ‘Bill, you see what I had to do.’ About the 1st of April Lee Mann and Ira Fain each told me, ‘You better watch Switch Foreman, he has threatened your life’.”

It is undoubtedly the law of justifiable self-defense that, if defendant had at the time reasonable grounds to believe, and in good faith believed, that deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.

In Roddie v State, 19 Okla. Cr. 63, 198 P. 342, we said:

“Acts which a defendant may do and justify under a plea of self-defense depend primarily upon his own conduct, and secondarily upon the conduct of the deceased. However, there is no fixed rule applicable to every case. If a man, while in the lawful pursuit of his business, without fault on his part, is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of an accomplishment of this design, he may, acting under these fears alone, slay his assailant, and be justified by the appearances, and, as where the attack is sudden and the danger imminent, he may increase his peril by retreating, so situated he may stand his ground and slay his assailant.
“On the other hand, if one who has taken the life of an assailant was himself in the wrong, he cannot plead self-defense, but the wrong which will preclude him from making that defense must relate to the assault in resistance of which the assailant was killed.”

It is the well-settled doctrine in this state that the right to take another’s life in self-defense is not to be tested by the honesty or good faith of defendant’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief.

Our examination of the evidence leaves no doubt in our minds as to defendant’s guilt. He, a deputy sheriff, shot an unarmed and defenseless man without excuse or justification. According to his own statement on the witness stand, he is guilty of manslaughter in the first degree. It follows that the verdict was as favorable to defendant as the law and the testimony warranted.

Two or three exceptions were taken to rulings of the court during the progress of the trial on the admission and rejection of evidence which we have not overlooked, but do not consider necessary to discuss.

No objections were made or exceptions taken to the instructions given by the court, and, taken as a whole, they were more favorable to defendant than he had any right to expect.

We have to say in conclusion that there was no error which could have been prejudicial to defendant.

The judgment of the lower court is accordingly • affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    R. L. ROGERS v. STATE.
    No. A-5277.
    Opinion Filed March 1, 1926.
    Rehearing Denied March 27, 1926.
    (244 Pac. 461.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error, R. L. Rogers, here designated the defendant, was convicted of a cumulative or second offense against the prohibitory liquor laws of this state — in this instance manufacturing whisky — with his punishment fixed at confinement in the penitentiary for a term of one year, and to pay a fine of $500.

The charging part of the information reads as follows:

“R. L. Rogers * * * did commit the crime of felonious manufacture of intoxicating liquor, in the manner and form as follows, to wit: He, the said R. L. Rogers, on or about January 11, 1919, was duly charged by information in the county court of Carter county, Okla., with the unlawful possession of intoxicating liquors, with the intent to sell, barter, give away, and otherwise furnish the same to others, and that on the 9th day of April, 1919, in open court, the said R. L. Rogers duly entered his plea of not guilty, whereupon a jury was legally impaneled to try said cause, and upon trial thereof the jury so impaneled rendered their verdict of guilty, and judgment and sentence was entered, from which verdict, judgment, and sentence the said R. L. Rogers duly perfected his appeal to the Criminal Court of Appeals of the State of Oklahoma, and that said Criminal Court of Appeals duly affirmed the sentence and judgment below.
“That thereafter, to wit, on the 9th day of December, 1922, the said R. L. Rogers did then and there willfully, unlawfully, and feloniously engage in the manufacture of intoxicating liquor, to wit, whisky, with the willful, unlawful, and felonious intent then and there to give, sell, barter, and otherwise furnish the same to others, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

In this information the former offense was sufficiently stated to apprise the accused of the nature of the charge, and that it was for a second offense of the same character. It was also stated that the prior conviction had been affirmed by the adjudication of the appellate court.

•This information does not come within the rule announced in Tucker v. State, 14 Okla. Cr. 54, 167 P. 637; nor the case of Wilson v. State, 27 Okla. Cr. 153, 225 P. 566; nor Furrh v. State, 27 Okla. Cr. 283, 226 P. 1065. In the Tucker Case the character of the first offense was not sufficiently stated. In the other two cases the pleader stated conclusions only. Neither of these vices is apparent in the information quoted. This information sufficiently charged a second oifense, under the provisions of section 6991, Comp. Stat. 1921, which reads as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act [Prohibition Act], the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ,($2,000.00) dollars, and by imprisonment of not less than thirty ('30) days in the county jail, nor more than five (5) years in the State Penitentiary, and it shall be mandatory upon the trial judge in eases where any one has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

The defendant next claims that the proof is insufficient to support the charge because there was no direct proof of a formal judgment of the trial court on the verdict finding the defendant guilty of the first offense.

Where the first conviction has been affirmed in this court on appeal, we hold that proof in detail of all the steps leading up to and including the judgment of conviction in the trial court is not necessary. An affirmance here is of itself a final judgment, under the provisions of section 2824, Comp. Stat. Í921, which, reads as follows:

“On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct.”

To make proof of a former judgment in the trial court it was held, in the case of Browder v. State, 15 Okla. Cr. 287, 176 P. 96, that the record of a criminal prosecution is governed by section 2777, Comp. Stat. 1921, and inferentially held that the showing of a former conviction should be supported by proof of the indictment or information, a copy of the minutes, showing the plea or demurrer, the verdict of the jury, if any, and the final judgment on the verdict or plea. In this case sufficient proof is made that the final judgment on the former conviction was rendered in this court.

In this case proof of the original information in the former trial was made by its introduction in evidence. Proof of the verdict was made in like manner. From the clerk’s minutes it was shown that an appeal to the Criminal Court of Appeals had been taken by the defendant from the judgment and sentence in the former conviction, and the opinion and judgment of the Criminal Court of Appeals was then introduced, showing that the judgment of conviction in this former trial was affirmed, together with the mandate of the appellate court ordering the execution of the judgment below.

The proof sufficiently shows that this court had jurisdiction of the prior conviction on appeal, and we hold that the judgment of affirmance of the prior conviction makes this last conviction — the one here at issue — a “subsequent conviction,” within the meaning of section 6991, supra.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    TOM PANTHER v. STATE.
    No. A-5383.
    Opinion Filed March 31, 1926.
    (244 Pac. 825.)

      F. W. Church, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information charged that in Ottawa county, September 12, 1924, Tom Panther transported intoxicating liquor. On the trial the jury returned a verdict of guilty, and fixed his punishment at a fine of $50 and confinement in jail for 30 days. To reverse the judgment rendered on the verdict he appeals, and assigns as error that the evidence is insufficient to sustain the verdict.

O. P. Marshall, chief of police, testified that he saw the defendant drunk at the fair grounds in the city of Miami, and defendant stuck his hand inside his shirt, pulled out a bottle and hit him across the leg, and the bottle had whisky in it. At the close of the evidence defendant moved for a directed verdict, which was overruled.

Defendant testified that he was attending the fair, •and a bunch of boys wanted to put in for something to drink, so he bought'a pint; the first thing he knew he was about half drunk; Mr. Marshall arrested him, and he broke the bottle on his heel; that he bought the whisky from one of the jockeys, he did not know his name, and paid $3 for it; that it was corn whisky; that they went in the stalls and drank once in a while; and that he took a drink several different places.

This was, we think, sufficient to warrant the submission of the case to the jury.

Finding no prejudicial error, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    LUTHER YEATMAN v. STATE.
    No. A-5415.
    Opinion Filed April 2, 1926.
    (244 Pac. 828.)
    C. B. Leedy, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information charged that in Ellis county, June 15, 1923, Luther Yeatman did have possession of 3 quarts of whisky with the intention of violating the provisions of the prohibitory liquor law. On the trial the jury returned a verdict of guilty and fixing the penalty at a fine of $50 and confinement in jail for 30 days.

From the judgment entered on the verdict, he appeals, and assigns as error the overruling of motion for continuance, error in admitting evidence obtained under a void search warrant and in excluding competent evidence offered by defendant, and that the verdict is not sustained by sufficient evidence and is contrary to law.

The evidence for the state is to the effect that the sheriff, a deputy sheriff, and the court clerk, under authority of a search warrant, visited the premises occupied by defendant about 18 miles southeast of Arnett and searched the premises, including his residence, and found behind the henhouse two fruit jars containing whisky, covered with a fruit box, and a brass kettle in the smokehouse.

At the close of the state’s evidence there was a motion for a directed verdict in the form of a demurrer to the evidence, which was overruled.

For the defense, the mother of defendant testified that she lived with her son, and was present when the officers searched the house and yard; that she knew nothing about the whisky that was found near the hen-house, but the brass kettle they seized belonged to her, and she used it in preparing pickles and cooking. She was then asked if, during the night before, she heard the dog rearing around the house and acting as though some one was on the premises. The state’s objection was sustained.

Thereupon the jury was excused, and defendant offered to prove by this witness that during the night she heard a noise of a person around the henhouse, and heard the dog making a racket, apparently after some person; that the next morning the officers found jars containing whisky back of the henhouse, covered with a small lemon box.

The wife of the defendant testified that they had never had any whisky around the house, and that she did not know who the whisky found belonged to or how it got there behind the henhouse.

Defendant testified that he had lived in Ellis county 15 years, and was replanting broom corn on Hector’s place when the officers appeared; that Chester Turner came along and told him there was some whisky at his house, and he unhitched the team and started to his home and met the officers; the sheriff asked him if he knew anything about the whisky that he had in his car, and he asked him what whisky, and the sheriff said, “Get in, and we will go to town”; that he never saw the jars before, and did not know what they contained; that he never at any time had possession of, sold, or offered for sale any whisky.

It is argued that the court erred in overruling the defendant’s motion for a continuance, supported by his affidavit, on the ground of the absence of a material witness, Chester Turner, and setting forth: That on July 29th defendant by his attorneys filed his praecipe for subpoenas to issue for his witnesses, including the said Chester Turner. That, on the 6th day of August, the sheriff advised C. B. Leedy, attorney for defendant, that he had not served the subponeas for any of defendant’s witnesses, having been advised by the county attorney not to serve said subpoenas, that he would not approve any claim by the sheriff for his fees in serving the subpoenas for defendant’s witnesses. That two days prior to his trial the sheriff made an attempt to serve the said subpoenas, but did not find the witness, Chester Turner. The return of .the sheriff, made on August 11th, recites that said witness cannot be found in the county. That said witness Turner, if present, would testify: That he is a resident of Ellis county,' and on the 14th day of June was attending a dance at Mr. Coram’s, defendant’s father-in-law. At the dance Carl Jones, from Dewey county, was selling corn whisky, and it was reported that officers were coming to the dance, and witness and said Carl Jones went to defendant’s home about midnight or after. That apparently defendant and his family were in bed. They did not see anyone there, and the house was dark. That Jones broke one quart of the whisky and carried three quarts from the car and placed it near the chicken house, and left it there for the night, so that the officers could not find it. Witness and Jones then returned to the dance, and Jones said he would go by defendant’s house and take the whisky away before defendant got up the next morning. That the next morning witness went to the field where defendant was working, which was some distance from his house, and told defendant that Carl Jones from Dewey county had left some whisky at defendant’s place, near or in an outhouse, and advised defendant to go to his house and see if Jones had not taken it away. That he had known defendant for several years, and never knew defendant having possession of any whisky. That defendant has no other witness to prove these facts, and asks the court to grant him at least Í0 days to obtain the attendance or deposition of the said Chester Turner.

The affidavit for continuance was not traversed. The court overruled the motion, and the trial court proceeded over defendant’s objection.

We understand the rule to be that applications for a continuance are addressed to the discretion of the trial court. Here it appears that the defendant used due diligence to secure the attendance of the absent witness, and his absence was due to the refusal of the sheriff acting on the advice of the county attorney to serve the process in due time. We think, upon the undisputed facts, the court abused its discretion in overruling the motion for a continuance.

The Constitution guarantees to every person accused of crime the right to have compulsory process for obtaining witnesses in his behalf. Section 20, Bill of Rights.

In Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464, we-said:

“It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial.”

And see Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Romine v. State, 10 Okla. Cr. 350, 136 P. 775.

This is sufficient to dispose of the appeal; but, in view of the fact that a new trial must be granted, it is proper for us to notice the affidavit upon which the search warrant issued. It describes the place to be searched as section 25 and the east half of section 23,. township 19, range 22, and the buildings thereon, but fails to state that defendant’s residence thereon is a place of public resort or a place for the storage of intoxicating liquors.

An examination of the record discloses that, in his exceptions to the admission of the state’s evidence, defendant did not specify that the admission of the same violated any of his constitutional rights. It follows that the question argued cannot be raised for the first time in this court.

For the reasons stated, the judgment appealed from is reversed, and a new trial awarded.

BESSEY, P. J., and EDWARDS, ,J., concur.


author: EDWARDS, J.

text:
    JAMES CARLE v. STATE.
    No. A-5445.
    Opinion Filed April 3, 1926.
    (244 Pac. 833.)

      ■Chas. H. Garnett, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of murder, and sentenced to life imprisonment. This is a companion case to that of Lowden Carle v. State, 21 Okla. Cr. 21, 221 P. 797, heretofore decided by this court

A brief summary of the facts shown are about as follows: The Lessenger family lived on the extreme western boundary of Oklahoma City, on the south side of Tenth street, and operated a dairy and stock farm. On the night of the 15th day of July, 1919, C. M. Lessenger, the father, had living with him his sons M. I. Lessenger and the deceased, Newell Lessenger. The family of the defendant lived not far away. About 3:00 a. m., on that morning, M. I. Lessenger went to the hog lots, some distance from the house, for the purpose of shutting off the water, and discovered a wagon and some persons evidently loading some of the hogs. He returned to the house, and notified his father and his brother Newell Lessenger, and another brother Hoefert Lessenger. They armed themselves with guns and pistols, drove west by the hog lots, and turned south, and overtook the wagon containing hogs, with Lowden Carle walking near the head of the team, and the defendant on the seat driving. They did not, however recognize them, as it was yet dark. The car ran up near the wagon, and M. I. Lessenger and Newell Lessenger jumped out, and called, “Halt!” Lowden Carle opened fire, which was returned by the Lessengers. Newell Lessenger was shot and killed. Lowden Carle fled, and the defendant jumped from the wagon, and also fled, and were not recognized or apprehended until several days later. The defendant did not fire any of the shots.

It is the theory of the state that the defendant and his brother were engaged in the commission of a felony at the time of the homicide, and that the crime is murder. It is the theory of the defendant that the Carles had permission to remove the hogs, and that they were not engaged in the commission of a felony, and, further, that in any event the defendant James Carle was merely assisting his brother Lowden on what he believed was a lawful mission, and took no part in the killing of Newell Lessenger, and is not guilty of any crime. ,

The defendant argues various assignments of error. Such as are deemed of sufficient importance will be considered in the order presented.

The first assignment is based upon an application for a continuance, alleging that five witnesses therein named were not present, although summons had been issued for them and return had been made “not found”; then setting out in detail what the evidence of the witnesses would be. Two of the witnesses later appeared and testified. As to' the other three, the testimony of one of them is of no particular consequence. That of another was cumulative, and as to the third it appears from the affidavit that several other persons had the same knowledge that he did. None of them were subpoenaed. The application is defective in several particulars. It does not set out the diligence used other than that a summons was issued and returned “not found.” It is not shown where the witnesses reside, nor the likelihood of obtaining their presence at any subsequent time, nor that the facts covered by their testimony could not be shown by other witnesses. Section 584, Comp. Stat. 1921; Rhea v. Terr., 3 Okla. Cr. 230, 105 P. 314; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N. S.) 153.

An application for a continuance is addressed to the sound discretion of a trial court, and no abuse of discretion is shown.

The second assignment challenges the jurisdiction of the district court of Oklahoma county; the defendant contending that the venue had been changed to Canadian county. The record recites at length the proceedings had by which it is shown that the defendant and Lowden Carle were jointly charged, and a severance taken. It appears that upon a petition signed by the defendants Lowden Carle and James Carle, but verified only by Lowden Carle, a change of venue as to Lowden Carle was ordered. The order is entitled: “State of Oklahoma, Plaintiff, v. Lowden Carle, Defendant,” and recites that the cause came on for hearing on the verified application of defendant for a change of venue, and that the court thereupon grants the change of venue and orders a transcript of the proceedings to Canadian county. This is signed by George W. Clark, district judge. There also appears a minute by the clerk entitled in the name’ of both defendants, reciting that a change of venue was granted. This evidently refers to the same proceeding covered by the journal entry mentioned. Various other minutes of the clerk indicate that on account of a change of county attorney the state was uncertain whether or not a change of venue had been taken by the defendant. The various proceedings shown by the record disclose that, subsequent to the claimed change of venue, the defendant by his counsel frequently appeared in the district court of Oklahoma county in this case, and made agreements for continuance, had the case stricken from the assignment, and reset by agreement.

Section 20, art. 2, of the Constitution of Oklahoma, is as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed : Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. * * *”

Section 2628, Comp. Stat. 1921, is the manner prescribed by law under the foregoing section of . the Constitution for change of venue, and reads:

“Any criminal cause pending in the district court may, * * * on the application of the defendant, be removed * * * to some other county. * * * Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit. * * * When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant.”

From the Constitution and statute above set out it is obvious that an accused is entitled under the Constitution to a “speedy and public trial” in the county where the crime shall have been committed. The state may not change the venue, but such change may be granted only on the application of the accused. His right to a trial at home, among his friends, where the witnesses are accessible, can be waived only by him, and then in the manner prescribed by law; that is to say, upon a petition of the defendant, verified by affidavit.

The petition for change was made after the severance, and, while it purports to be drawn for both Lowden Carle and James Carle, it is verified by Low-den Carle alone, and the affidavit to the petition by its terms is made for Lowden Carle alone. The journal entry, signed by the judge, is in the singular, and entitled in the name of Lowden Carle alone. The defendant James Carle thereafter repeatedly appeared in the district court of Oklahoma county by his counsel, and had orders made entirely inconsistent with any theory that a change of venue had been made as to him. Upon the entire record the trial court correctly held that the order changing the venue was after a severance and was as to the defendant Lowden Carle only. The following cases are enlightening op this point: Adams v. State, 25 Okla. Cr. 298, 220 P. 59; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; State v. Ross (Mo. Sup.) 178 S. W. 475; Huckabee v. State, 53 So. 251, 168 Ala. 27; State v. Denton, 6 Cold. (46 Tenn.) 539; McCauley v. People, 88 Ill. 578.

It is next argued that the issue of manslaughter in the first degree is raised by the evidence, and, although no request for such instruction was made, that the court should have submitted that issue to the jury, citing: Cannon v. Ter., 1 Okla. Cr. 600, 99 P. 622; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685; James v. State, 14 Okla. Cr. 205, 169 P. 1127; Tubby v. State, 15 Okla. Cr. 496, 178 P. 491; Newby v. State, 17 Okla. Cr. 291, 188 P. 124.

Let it be admitted that it is the duty of a trial court in a murder case, whether requested to do so or not, to submit the case to the jury upon every degree of homicide which the evidence tends to support. Even so, was the defendant entitled to have submitted the law applicable to manslaughter? Is not the defendant guilty either of murder committed while engaged in the commission of a felony, or is not the homicide justifiable self-defense? The defendant’s contention that, even though the taking of the hogs was a larceny, it had been completed is not tenable. Such contention wholly ignores the fact that, if the mere taking was complete, the asportation was continuing at the time of the homicide. Brown v. State, 7 Okla. Cr. 678, 126 P. 263. So, if the jury believed the state’s theory that the taking of the hogs was a larceny, they must also find that the asportation was not complete, and that the homicide was committed while the defendant and his brother were engager in a felony. This, under subdivision 3, $1733, Comp. Stat. 1921, is murder. If the jury had believed the defendant’s theory that the taking of the hogs was a lawful enterprise, and that while so engaged defendant and his brother were overtaken by persons whom they did not know, and who commanded them to halt, and thereupon the shooting ensued, the defendant would not have been guilty of any offense, but would be entitled to have been acquitted, as in such case the homicide was in his necessary self-defense. The court instructed the jury fully to this effect.

It is next contended that the court erred in his instructions numbered 12 and 13. Instruction No. 12 is, in substance, that, if the jury find that the shooting was done by the defendant James Carle with a premeditated design, and including the other essentials of murder, the jury should find him guilty, and, if they entertain a reasonable doubt, they should acquit. It is contended that this instruction is not based on any evidence in the case. There is no evidence that the shot was fired by the defendant James Carle with a premeditated design, and no premeditated design need be proven where a homicide is perpetrated in the commission of a felony. Where murder is charged under the first subdivision of section 1733, Comp. Stat. 1921, a conviction may be had, if warranted by any other subdivision of said section. Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300.

If the instruction under the evidence is erroneous, it is error favorable to the defendant, since it places too great a burden upon the state. See Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707; Herndon v. State, 16 Okla. Cr. 586, 185 P. 701; Welch v. State, 16 Okla. Cr. 513, 185 P. 119.

Instruction No. 13 informs the jury that, if defendant or his brother were armed with revolvers, and went upon the premises of the Lessengers to steal hogs, and that the Lessengers sought to halt them for the recovery of said hogs, and that Lowden Carle and defendant, in an endeavor to resist arrest or to escape, did fire the fatal shot, the defendant would be guilty.

It is complained that this instruction does not require the jury to find premeditated design. This contention has been disposed of by what we have just stated. ' It is not a variance that homicide by one engaged in the commission of a felony is proven under an information charging a premeditated homicide. It is further argued that this instruction is erroneous in assuming that the Lessengers were attempting to arrest the defendant and his brother. The language of the instruction refutes such contention. It does not assume such state of facts, but requires that the jury shall believe it from the evidence beyond a reasonable doubt before they would be warranted in finding the defendant guilty. It is further contended that the instruction is erroneous in not submitting to the jury whether or not the homicide was a probable and natural consequence of the plan and design of the defendants to steal the hogs of Lessenger. It is well settled that, where two or more persons enter into a conspiracy to commit a felony under such circumstances as will, when tested by human experience, probably result in the taking of human life, it is presumed that all understand the consequences, and, if death happens in the prosecution of such enterprise, all are alike guilty of a homicide. 13 R. C. L. “Homicide,” §§ 29, 30, 31, 32; Reeves v. Ter., 10 Okla. 195, 61 P. 828; 3 Greenleaf on Evidence, § 40; Holmes v. State, supra, and authorities therein cited.

There is no merit in the contention, nor is there any merit in the contention that the judgment is not supported by the law and the evidence.

Some other assignments of error were briefly presented, all of which have had attention, but they are, we think, without sufficient merit to be severally considered. Upon a consideration of the whole case we believe the defendant was fairly tried, the issues fairly submitted, and no error that would warrant a reversal is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    W. H. HOWE v. STATE.
    No. A-5320.
    Opinion Filed April 3, 1926.
    (244 Pac. 826.)

      James M. Gresham and John R. Miller, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Creek county on a charge of inoculating another with a venereal disease, and sentenced to serve a term of three years in the state penitentiary. The prosecution is under the provisions of section 1959, Comp. Stat. 1921, as follows:

“Any person who shall inoculate himself or any other person or shall suffer himself to be inoculated with smallpox, syphilis or gonorrhoea and shall spread or cause to be spread to any other persons with intent to or recklessly be responsible for the spread of or prevalence of such infectious disease, shall be deemed a felon, and upon conviction thereof shall be punished by imprisonment in the penitentiary not more than five years nor less than two years.”

It is first contended that the information is insufficient in failing to allege that the defendant “knowingly” inoculated another with a contagious disease as prohibited by said section; that under the statute it is clearly the legislative intent that one should not be convicted unless he committed the act knowingly, and that the evidence is insufficient to prove such knowledge. The charging part of the information is:

“* * * That on or about said day and date, in said county and state, he, the said W. H. Howe, then and there being, did then and there unlawfully and feloniously inoculate and infect another person, to wit, Grace Howe, his wife, with a contagious and infectious disease commonly known as syphilis, with the unlawful and felonious intent on part of him, the said W. H. Howe, to recklessly spread such infectious disease.”

The information contains all the allegations of scienter or knowledge that the statute requires, and is sufficient. Santino v. State, 29 Okla. Cr. 149, 232 P. 859; State v. Kuehnle, 88 A. 1085, 85 N. J. Law, 221, Ann. Cas. 1916A, 69; Block v. U. S. (C. C. A.) 261 F. 321; People v. Wolfrom, 115 P. 1088, 15 Cal. App. 732.

One who did not know himself to have a disease could not, under this statute, intentionally communicate the disease to another, nor if without knowledge that he was inoculated could he recklessly be responsible for communicating it to another. Proof of knowledge may be shown by either direct and positive testimony- or by circumstances. There is sufficient evidence in the record to show that defendant, having knowledge that he was inoculated or affected with a venereal disease as defined in said section, communicated such disease to another as charged in said information, and is responsible for the communication of such disease. We deem it unnecessary to review the evidence on this point.

It is next argued that the court erred in admitting the testimony of a physician who had examined defendant, for the reason that the testimony was privileged. By the sixth subdivision of section 589, Comp. St. 1921, a physician or surgeon is made incompetent to testify concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a physical examination of any such patient, with a proviso that the privilege is waived if the person offer himself as a witness on the same subject. In the evidence of the state in chief, Dr. King was called as a witness, and testified as to the condition of Grace Howe, and testimony was further drawn from him to the effect that he also treated the defendant, and the statements made to him by the defendant, and, over the objection of defendant, permitted testimony of statements made by the defendant and of knowledge obtained by examination after he had been employed by the defendant as his physician. At that time the defendant had not testified, and the privilege had not been waived as might be done under the latter part of said subdivision 6. Admitting this testimony was a violation of the statutory rights of the defendant.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    S. E. ELLIS et al. v. STATE.
    No. A-5446.
    Opinion Filed April 5, 1926.

      (244 Pac. 831.)

      H. B. Martin, for plaintiffs in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellants, Ellis and Button, were jointly charged, tried, and convicted of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury were each sentenced to pay a fine of $250 and be confined in the county jail for three months. To reverse the judgments they appeal.

The errors assigned question the sufficiency of the evidence to sustain conviction and that the court erred in overruling their motion to suppress the evidence obtained by unlawful search of their premises, made in violation of the constitutional rights of the defendants.

The undisputed facts are: Officers of the raiding squad searched the premises occupied by the defendants in the business of repairing radiators, and found and seized two boxes containing whisky.

Before the commencement of the trial defendants filed a motion to suppress all the evidence upon which the information is based, on the ground that the same was illegally obtained by searching their place of business without a search warrant; that there is no other evidence. In support of the motion Raymond Hoagland testified that, as clerk of the municipal criminal court, he is custodian of the records; that he made a search of the records to ascertain whether or not there is any record of the issuance, service, or return of a search warrant in this case, and has been unable to find any such record; that sometimes officers secure search warrants without affidavit. The court overruled the motion.

On the trial the same objections were made and exceptions taken to rulings of the court in the admission of the evidence.

Ned Gritts testified that he was the captain of the raiding squad, and remembers when Frank Jones, Lipscomb, Capps, and Lowe, brought in and made return of the search warrant (defendants’ objection that, if there was a search warrant and return made thereon, the return itself is the best evidence, being overruled) ; that he made the affidavit and issued the search warrant in this case last year, but was not sure whether the affidavit was made before Judge Warren or not; that he did not participate in the raid, but did make the return and had Frank Jones sign it.

B. C. Lipscomb testified that he was a police officer of the city of Tulsa; that with Jones, Capps, and Lowe he searched their place of business and arrested the defendants; that he received a search warrant from Capt. Gritts and turned it over to Mr. Jones, and told him it was a search warrant for these premises; that he did not sign an affidavit for the search warrant; that Capt. Gritts was supposed to swear to it.

H. S. Capps testified that he assisted Jones, Lowe, and Lipscomb in the search of the defendants’ premises; that he did not make any affidavit, serve any warrant, or make any return, but heard one of the officers say that he had a search warrant, but did not hear him say that it was for this place.

The state rested, and defendants moved to strike all the evidence. Thereupon the prosecution asked and was granted permission to reopen and called Raymond Hoagland, who testified that, as clerk of the municipal criminal court, he searched the records for the affidavit and search warrant in the case now on trial, and has been unable to find any record of the same; that search warrants are filed and entry is made on the appearance docket, but no entry of a search warrant or the return thereto was ever made in this case; that he has no personal recollection of the same in this case.

The defendants again made a motion to strike all the evidence. The motion was overruled. They then moved for a directed verdict, which was overruled.

Several witnesses testified to the good character and reputation of the defendants as law-abiding citizens.

S. E. Ellis testified that for seven years he was engaged in repairing automobile radiators in the city of Tulsa, and never did see any whisky brought into his place of business either before or after this action; that none of the raiding officers showed him a search warrant, but one of the officers said he had one.

A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation. Const, art. 2, § 30.

The statute provides:

“A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.” Section 2878, C. ¡S. 1921.

It must be taken as settled in this state that evidence obtained by a search of defendant’s premises, without authority of law, for the sole purpose of obtaining evidence against him, is in violation of. Bill of Bights, § 30, guaranteeing the security of the people in their right to be exempt in their persons, houses, papers, and effects from unreasonable search and seizure. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602.

Upon careful examination of the record we are satisfied that the evidence offered by the state tending to prove the guilt of the defendants was incompetent, because all of said evidence was obtained by an illegal search of the premises of the defendants, in that the same was made without a search warrant lawfully issued. The statute provides (section 7009) that, upon complaint or affidavit sufficient to show there is probable cause, a search warrant shall issue, directed to any peace officer in the county, commanding him to search the premises described in such complaint .and warrant, and, after executing the same, “to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any.” It ’further provides:

“A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixture so seized, and if no: person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

Section 7010 requires that:

“The judge or magistrate shall fix a time, not less than ten days, nor more than thirty days thereafter, for hearing of said return, when he shall proceed to hear and determine whether or not the property and things so seized or any part thereof, were used, or in any manner kept or possessed by any person within this state, with the intention of violating any of the provisions of this act.”

It further provides:

“Upon such hearing the sworn complaint or affidavit, upon which the search warrant was issued, shall constitute prima facie evidence of the contraband character of the property and things seized.”

In view of these statutory provisions, and that no proceedings are shown by the records of the court, and in view of the fact that it appears that the trial of this case occurred 17 months after the time the search and seizure was made, we are inclined to think that the witnesses were mistaken as to the fact of having a search warrant. . They, as others sometimes do, mistake their imagination for their memory.

The conviction in this case, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, must be reversed.

The judgments are reversed and cause remanded, with directions to discharge the defendants.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    Ex parte JAMES F. HAYWORTH.
    No. A-6164.
    Opinion Filed April 6, 1926.
    (244 Pac. 827.)

      Brown Moore, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application for writ of habeas corpus. It is alleged that petitioner, James F. Hayworth, is restrained of his liberty and unlawfully imprisoned in the county jail of Payne county by the sheriff of said county; that petitioner is charged with manufacturing liquor; that his bail is fixed at the excessive and unreasonable amount of $2,000, for his appearance for trial in the county court of Payne county; that said petitioner is a farmer and residing with his family in said county, and that they have lived in that particular neighborhood for the past nine years; that he has been unable to give said excessive bail, and the same is in violation of his constitutional rights; and that he be admitted to bail in a reasonable sum, in said action now pending before the county court of said county.

The constitutional provision is: “Excessive bail shall not be required.” Bill of Rights, §■ 9. Bail is not to be deemed excessive because the particular person charged cannot give the bail required, but bail should not be exacted for the purpose of punishing a person charged with crime, for no person is punishable for an offense except upon a plea of guilty or upon a conviction by a jury of his peers. Bail is exacted for the purpose of securing the attendance of the defendant at court at all times when his presence may be lawfully required and his rendering himself in execution of any judgment that may be pronounced against him. Ex parte McClellan, 1 Okla. Cr. 299, 97 P. 1019.

In an application to this court for habeas corpus, for a reduction of bail upon the ground that the amount fixed by the trial court is excessive, it is not sufficient that this court might originally have deemed a lesser amount sufficient. It must clearly appear that the trial court has abused its discretion to an extent that denies the defendant his constitutional rights, before this court will reduce the amount of bail as fixed by the trial court, as the Constitution is supreme, and as the rights which it guarantees to the people were intended to be and should be upheld. We have, in view of this, and upon consideration of the matters presented in this case, arrived at the conclusion that the bail fixed by the trial court is excessive and clearly disproportionate to the offense involved.

It is therefore considered, adjudged, and ordered that the bail required be reduced to $1,000 bond, to be conditioned as by law required, and, upon the approval of the same by the court clerk, respondent is directed to discharge petitioner.


author: BESSEY, P. (J.

text:
    BEN BARNETT v. STATE.
    No. A-5337.
    Opinion Filed April 6, 1926.
    (244 Pac. 830.)

      Anglin & Stevenson and Pryor, Stokes & Carver, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. (J.

The plaintiff in error, here designated the defendant, was a negro 32 years old, the owner of considerable property, who lived with his family in the country near Holdenville. On the day of the homicide he came to Holdenville with his wife, who was leaving to visit a sick relative. Later in the evening, after she had left, he visited various public places in Holdenville, and at about 8.30 o’clock went to a house where there was a dance, to see a tenant who was occupying one of defendant’s houses in Holdenville, about some repairs. There he saw the deceased, Ethel Thomas, who had followed him to this house, and a quarrel ensued, culminating in her death from a shot fired from an automotic pistol in the hands of the defendant.

There was evidence showing, or tending to show that the defendant and this Ethel Thomas had been much in one another’s company, and that she was his mistress; that when she was intoxicated she was a quarrelsome, turbulent, and dangerous damsel, who frequently went armed with a knife or razor; that on this particular night she was intoxicated and had a knife. Portions of the record would seem to indicate that she was endeavoring to compromise the defendant for the purpose of blackmailing him, and that the defendant knew of such purpose.

When the deceased heard that the defendant was in the rear room of the house where this negro dance was in progress, she sent word to him that she wanted to see him. He gave no heed to this message, but later when he went out to his car to léave the place she was there waiting for him, and demanded of him that he take her home. He refused, and she seized hold of him and cursed him, calling him vile and insulting names. Presently they became disengaged and walked off together down the street, where the quarrel was renewed. The defendant says that in the course of the second affray, when the deceased was threatening to and was in the attitude of striking him with an open pocket knife, he struck at her hand and arm with his automatic pistol, for the purpose of knocking the knife from her hand, and that the pistol was accidentally discharged. Immediately after the shooting, an open pocket knife was found near the dead woman’s body.

The defendant, in excitement, fled to his home in the country; when he later heard that he had killed the woman, he came in and voluntarily surrendered to the sheriff.

Excepting for the evidence concerning the manner of the firing of the fatal shot, the defendant’s evidence in its most material parts is well corroborated by the witnesses for the state. As to the firing of the shot, there' were two eyewitnesses who testified for the state, whose testimony indicates that the fatal shot was fired deliberately, not accidentally, nor in self-defense. Two or three eyewitnesses for the defendant gave testimony indicating that the firing of the pistol may have been accidental or in self-defense.

The court permitted the county attorney, over the objections of the defendant, to interrogate the defendant’s witnesses concerning specific offenses, or instances of misconduct, imputed to the defendant’s witnesses, on cross-examination, with an apparent intent of discrediting these witnesses concerning matters not at issue. From the record we quote an example, similar to others not quoted:

Ida Wells had testified that she saw and talked with Ethel Thomas, the deceased, that night, and that she was drunk, and that her reputation for being quarrelsome and dangerous was bad. Then followed this testimony:

“By the County Attorney: You say that Ethel’s reputation was bad? A. Yes, sir.
“Q. You are a judge of that? A. I have seen her drunk.
“Q. You have paid a few city fines, haven’t you? A. No, sir.
“Q. Didn’t you pay a city fine in the city court for laying up down here with the defendant in this case? A. I never have.
“Q. Wasn’t you and Ben Barnett convicted down here? A. No, sir.
“By Mr. Stevenson: We object, as incompetent, irrelevant, and immaterial, and we object to the conduct of the counsel, asking a question of that kind without laying the proper predicate, and asked for the purpose of prejudicing the jury.
“By the Court: That question may be asked to show the interest. I want to get all the facts in the case, if I can, on both sides. I want to hear it all. I want to see what kind of witnesses they are, and who they are. Anything further with this witness? Anything further?
“By the County Attorney: Haven’t you been convicted in the city court for selling choc? A. No, sir; I have not.
“By Mr. Pryor: We object to that as incompetent, irrelevant, and immaterial, and ask the court at this time to instruct the county attorney not to pursue such questions further, for the reason that the Criminal Court of Appeals has ruled you can only ask a witness whether or not they have been convicted of a crime that involves moral turpitude.”

No evidence was offered supporting these imputations, and this method of cross-examination had the effect of impeaching the character of this witness without competent proof on that point. The court also permitted the state to show that this witness was charged with the violation of a city ordinance for a specific act of lewdness with another man.

Ordinarily, a witness cannot be impeached by evidence of particular wrongful acts, nor is it proper to question a witness with reference to such matters. If the rule were otherwise, the best of us could not safely go upon the witness stand. To affect his credibility, a witness may be asked if he has been convicted of crime, but not as to whether he has been arrested or charged with crime. Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Welch v. State, 16 Okla. Cr. 513, 185 P. 119; Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003.

Now, with this and other witnesses so improperly impeached or discredited, the jury may have believed that Ethel Thomas was practically without fault. If, on the other hand, the testimony of the defendant’s witnesses was worthy of credence, the jury might have found that the defendant was perhaps justified in repelling an assault by this drunken woman, or that there were mitigating circumstances which would have caused them to assess a lighter penalty.

There were some minor errors in the exclusion of testimony which cannot be profitably treated here in detail.

The instructions of the court to the jury fairly covered the law of the case.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    LOUIS CONLEY v. STATE.
    No. A-5325.
    Opinion Filed April 3, 1926.
    (244 Pac. 595.)
    W. R. Withington, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the .State.
   BESSEY, P. J.

The only question presented for review in this appeal is the alleged error of the trial court in overruling the plaintiff in error’s objection to the introduction of evidence, because he had not been served with a list of witnesses to be used by the state against him. After this prosecution was instituted, and had been pending in the district court for a period of four or five months, an amended information was filed, charging the plaintiff in error with robbing the Farmers’ State Bank of Braman of the sum of $1,293 in money and $3,300 in Liberty Bonds, by placing the agents and those in charge of the bank in fear by the use of firearms.

It would appear that both parties in effect announced ready for trial, and after the jury were impaneled and sworn the county attorney made his opening statement to the jury, and the plaintiff in error’s attorney made his statement. After the witnesses were sworn and placed under the rule, and the first witness for the state appeared upon the stand, the plaintiff in error for the first time objected to the introduction of any testimony in the case, on the ground that no list of witnesses had been served upon him more than two days previous to the trial. Evidence was introduced in support of and controverting this objection.

Whether a list of witnesses had in fact been furnished the defendant, as contemplated by law, does not clearly appear from the record. But, if such list was not furnished him, the objection came too late, and was properly overruled. The right to be served with a list of the witnesses was waived under the circumstances shown in the record. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Walker v. State, 10 Okla. Cr. 533, 139 P. 711; Robbins v. State, 12 Okla. Cr. 249, 155 P. 491. No objection was interposed until after the jury was impaneled and sworn and the defendant was in jeopardy. To sustain such an objection at that stage of the proceedings would be equivalent to an acquittal, no matter how guilty the accused might be, amounting to a manifest miscarriage of justice. In the trial of a criminal case the defendant, as well as the state, must play fair.

The record shows that this defendant was an old offender, having been previously convicted of robbing another bank. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ERNEST THOMAS et al. v. STATE.
    No. A-5397.
    Opinion Filed April 3, 1926.
    (244 Pac. 816.)

      Patton & Adwon, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The evidence shows that these three defendants had assembled, in five or six wooden barrels, a large quantity of a semi-liquid substance, composed of meal, water, sugar, and yeast, under circumstances indicating that the mixture was made for the purpose of fermentation and the distillation of whisky. At the time this mixture was found and seized, August 3', 1924, it had been there in these open barrels for a period of at least 48 hours. The defendants claim that it was not “fit for distillation,” within the meaning of section 1, c. 42, of the Session Laws of 1923-24, which is as follows:

“It shall be unlawful for any person, or persons within this state, to manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the State of Oklahoma.”

It is the contention of the defendants that there was no competent evidence showing that this mixture had any alcoholic content, beyond the fact that it had been standing in these open barrels for a period of 48 hours, in the month of August, and that, if it contained no alcohol (and there is no direct proof of any alcoholic content), the substance was not “fit for distillation,” within the meaning of the statute. In other words, the defendants contend that the burden is on the state to show that the mixture, at the moment it was seized, contained sufficient alcohol so as to make it possible to extract therefrom an alcoholic distillate, or that it contained at least some alcohol.

The manifest purpose of this section of the statute is to punish persons for mixing or assembling the ingredients for fermentation, preparatory to and for the purpose of manufacturing distilled or other alcoholic liquors. The lexicographers indicate that the word “fit” may properly be used to import a number of shades of meaning. Some of the synonyms given indicate that the word “fit” may be equivalent in meaning to the words “adapted to,” “designed,” “prepared,” “suitable,” “appropriate.” Webster’s International Dictionary; 2 Bouvier’s Law Dict. Third Revision, 1237; United States v. Prussing, 27 Fed. Cas. 626, No. 16,095.

Construing the phrase, “fit for distillation,” along with the other qualifying phrase, “for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors,” it is clear that “fit for distillation” was meant to apply to present and future conditions alike, and that such mixture or compound made and assembled for the purpose of making alcoholic beverages, is prohibited the moment it is so assembled, although at that moment it may have no alcoholic content whatever. On the contrary, garbage slops, table refuse, perishable fruits and vegetables and the like, mixed with grain for stock food, would not be “fit for distillation,” within the meaning of the act.

Another objection urged is that the sheriff, who was a material witness in the case, was permitted to replenish the jury panel by summoning five jurors on an open venire, after the regular panel had been exhausted. No objection was interposed by the defendants, however, on this specific ground at the trial. If such irrégularity in fact occurred, the trial court should have been given an opportunity to correct it at the time. The right to challenge the poll or the array is a right that may be waived. 16 R. C. L. “Jury,” §§ 56 and 102.

The record shows that in the course of the selection of jurors the regular panel was exhausted, but does not show how or by whom the special jurors were summoned. If, as the defendants now contend, they were in danger of being tried by some jurors who might be biased because they were “hand-picked,” the defendants should have raised that point in the trial court by proper procedure. In the absence of a showing of actual prejudice, that point cannot be raised for the first time in this court.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    WALTER PHILLIPS v. STATE.
    No. A-5234.
    Opinion Filed Feb. 13, 1926.
    Rehearing Denied April 3, 1926.
    (244 Pac. 451.)

      C. C. Wells and Percy Powers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of manufacturing whisky, his punishment fixed at confinement in the county jail for a period of 30 days and a fine of $200.

The record discloses that defendant was a tenant on the farm of H. L. Meacham. At the time of the offense charged he had occupied the premises for two years. On the 21st day of December, 1923, certain officers with a search warrant went to the premises and made a search. In the field a considerable distance from the residence they found a concealed dugout, in which were two copper stills, a four hole oilstove, several barrels of mash, and some whisky. The stills were full of mash and were warm. The dugout was some 20 feet in length, was stoutly timbered, and the timbers were mouldy and showed evidence of having been in place for some time. The door was covered with dirt. The dugout was in a field of Sudan grass, planted in rows, the rows leading up to the dugout, but it had not been planted on top. The evidénce of the manufacture of whisky and the connection of the defendant was entirely circumstantial. The defendant denied any knowledge of or connection with the dugout or its contents. Three assignments of error are presented in defendant’s brief as follows: That the information is not sufficiently definite; that the court erred in admitting evidence obtained by the search warrant; the insufficiency of the evidence.

The first assignment is directed to the failure of the information to state the particular place where intoxicating liquors were manufactured, it being argued that an information charging the offense to have been committed in Greer county is not sufficiently definite. We know of no rule of pleading, and none has been called to our attention, that requires a more specific designation of the place where a crime is charged to have been committed than that it was committed in the county in which the prosecution is instituted. We perceive no distinction between the charging of the offense of manufacturing intoxicating liquors and a charge of any other violation of the criminal law. Certainly the general charge that the offense was committed in the county is sufficient.

Under the second assignment, it is contended that the court erred in excluding evidence sought to be elicited on cross-examination that the affidavit for search warrant in fact was sworn to on information and belief, although positive in form. The sufficiency of the affidavit and warrant are not challenged, but defendant sought to show that the officer making the affidavit did not have positive knowledge that intoxicating liquors were being manufactured on the premises in question, and that for that reason the affidavit was in effect an affidavit on information and belief.

The state Constitution (article 2, § 30), provides:

“* * * No warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to he seized.”

The statute under which the search warrant was issued (section 7009, Comp. Stat. 1921), is, in part, as follows :

“If it shall be made to appear to any judge or any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, * * * such judge or magistrate shall, with or without any indorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in the county, whom the complaint may designate, commanding him to search the premises described, and designated in such complaint and warrant and to seize all such liquor there found, together with the vessels in which it is contained, and all implements, furniture and fixtures used or kept for such illegal manufacture.* * *”

This court has held that a complaint must be positively verified, and if verified on information and belief it is void. Gore v. State, 24 Okla. Cr. 394, 219 P. 545. Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291.

The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant. Alvey v. Commonwealth, 251 S. W. 856, 199 Ky. 655; Bowen v. Commonwealth, 251 S. W. 625, 199 Ky. 400; State v. English, 229 P. 727, 71 Mont. 343; People v. Haas, 44 N. W. 928, 79 Mich. 449; Potter et al. v. Barry, 120 N. W. 586, 156 Mich. 183.

In Dolan v. Commonwealth, 262 S. W. 574, 203 Ky. 400, it was said:

“* * * It is the rule in this state that, if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained * * *” — citing authorities.

Upon the final assignment of error that the evidence is insufficient, we have carefully read the record, and, while the evidence is circumstantial, it is sufficient from which the jury might reasonably and logically find the guilt of the defendant. The verdict will not be disturbed for the reason of the insufficiency of the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    DELIA JEFFERSON v. STATE.
    No. A-5335.
    Opinion Filed March 6, 1926.
    Rehearing Denied April 3, 1926.
    (244 Pac. 460.)

      Freeman E. Miller, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of selling narcotics and sentenced to serve a term of two years in the state penitentiary and to pay a fine of $500.

The first assignment of error presented is that the court erred in refusing instructions requested by defendant. These requested instructions present the contention that the purchaser of narcotics is an accomplice of the seller, and that a conviction cannot be had unless such accomplice is corroborated. Section 2701, Comp. St. 1921, requires corroboration of the testimony of an accomplice. This statute has been many times considered by this court, and there can be no question as to the law, and if a purchaser of narcotics were an accomplice of the seller the contention would be serious. By the provisions of section 8887, Comp. St. 1921, it is made a crime to sell narcotics, and it is also made a crime to purchase narcotics unless under the conditions and exceptions in said section provided. But the fact that both the sale and the purchase of narcotics is a crime, it does not follow that the purchaser is an accomplice of the seller.

In Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049, this court held:

“The test by which to determine whether one is an accomplice is to ascertain whether or not he could be in-dieted or informed against for the offense for which the accused is being tried.”

See, also, White v. State, 23 Okla. Cr. 198, 214 P. 202.

In Pringle v. State, 32 Okla. Cr. 187, 239 P. 932, it was said:

“If witness could not have been indicted or informed against for offense for which defendant is being tried, he is not an accomplice.”

Sustaining this rule are the following cases: Stone v. State, 85 S. W. 808, 47 Tex. Cr. 575; Sanchez v. State, 90 S. W. 641, 48 Tex. Cr. 591, 122 Am. St. Rep. 772.

It has frequently been held that the purchaser of liquor sold in violation of law is not an accomplice of the seller. Commonwealth v. Downing, 70 Mass. (4 Gray) 29; State v. Baden, 34 N. W. 24, 37 Minn. 212; Sears v. State, 34 S. W. 124, 35 Tex. Cr. 442; Robertson v. State, 178 S. W. 1191, 77 Tex. Cr. 410.

The purchaser of narcotics, although he may solicit the sale to be made to him, and although he may be guilty of the offense of purchasing narcotics as defined in section 8887, is not an accomplice of one who sells narcotics to him. In such case they are independent criminals. The court committed no error in refusing requested instructions.

It is also argued that the evidence is insufficient, and that there is a variance between the charge in the information and the evidence. The information charges the sale of “one capsule of narcotic drugs, to wit, morphine, a derivative of opium. * * *” The proof is that the capsule contained morphine sulphate. This contention, we think, requires too great a refinement in pleading. This court takes judicial notice that morphine is a derivative of opium, and that the two usual forms in which it comes are morphine hydrochloride and morphine sulphate; that morphine hydrochloride is a chemical combination of morphine and hydrochloric acid, and morphine sulphate is a chemical combination of sulphuric acid and morphine.

In McIntosh v. U. S. (C. C. A.) 1 F. (2nd) 427, it is said:

“The gist of the offense charged * * * is dealing in and transporting. a derivative of opium. Morphine is a derivative of opium and morphine hydrochloride and morphine sulphate are subdivisions of morphine.”

In Barr v. State, 28 Okla. Cr. 392, 231 P. 323, we said:

“Judicial notice will be taken of scientific facts which are universally known, or which may be found in standard dictionaries, encyclopedias, and the U. S. Pharmacopoeia.”

See, also, 15 K. C. L. 1127; Webster’s New International Dictionary, definition “morphine.”

There is no variance between the allegation and the proof on this point.

■Some complaint is made against the instructions given by the court, but upon a careful consideration we find that the instructions fairly state the law, and as favorably to the defendant as the evidence warrants. Taken as a whole, no prejudicial error is apparent.

The case is affirmed.

BESSEY,.P. J., and DOYLE, J., concur.


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    WILLIAM COTTS v. STATE.
    No. A-5414.
    Opinion Filed April 5, 1926.
    (244 Pac. 817.)

      John P. Hickam, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of rape in the second degree and sentenced to serve a term of seven years in the state penitentiary.

The record discloses that defendant, on the 2d day of October, 1923, took one Viola Blossom, a female of the age of 16 years and of previous chaste and virtuous character, to a show at Stillwater, and on the road home accomplished an act of sexual intercourse with her, from which she became pregnant, and in June following gave birth to a child. The evidence is not voluminous, but simply sustains the charge in the information. The defendant did not take the stand, but offered evidence of his previous good character.

It is first contended that the court erred in permitting the witness Hy Cotts to testify to the age of the defendant. This witness, the father of defendant, was called for the defense. On rebuttal, the state recalled him and asked the age of defendant. Objection was interposed, and the state asked leave to reopen Its case and use the witness. This was done, and he testified that defendant was 20 years of age. The name of this witness was not indorsed on the information, but no objection on that ground was interposed.

It is settled that where a specific objection is interposed to a witness or to the admission of evidence, other objections than ones raised in the trial court are not available on appeal. Gritts v. State, 6 Okla. Cr. 534, 118 P. 673, 120 P. 669. However, the evidence of this witness is not material; it was evidently offered for the purpose of showing that defendant was over the age of 18 years to meet the provisions of section 1835, Comp. Stat. 1921, which provides that no person may be convicted of rape on account of an act of sexual intercourse with a female over the age of 14 years, with her consent, unless such person be over the age of 18 years at the time of such act. This statute, however, presents a matter of defense, and the state is not required to negative it, and was attempting to assume a burden not resting upon it. Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L. R. A. 1917E, 668; Williams v. State, 17 Okla. Cr. 452, 190 P. 892.

It is next contended that there was misconduct in the argument of the county attorney in the statement: “Gentlemen of the jury if you observe the baby you will know that it belongs to the defendant.” This was objected to and a motion made that it be stricken, which was overruled. No other part of the argument is shown except this single sentence; its context or relation to the argument of defendant’s counsel is not in any manner shown. The burden is on defendant to affirmatively show prejudicial error. This can hardly be made to appear from a single detached sentence unless it is of such a character as to be per se erroneous. See Sanditen v. State, 22 Okla. Cr. 14, 208 P. 1040; Payne v. State, 21 Okla. Cr. 416, 209 P. 334. A child four months old, as was this child at the time of the trial, may be brought into court to corroborate the fact of intercourse, but not to show resemblance. State v. Neel, 65 P. 494, 23 Utah, 541; State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387; Jones v. Jones, 45 Md. 144; Reitz v. State, 33 Ind. 187. The statement of the county attorney was probably erroneous, that depending on the occasion of the comment or statement made, but it is not reversible.

The statute fixes the punishment for rape in the second degree at confinement in the penitentiary for not less than one nor more than 15 years. Here the jury failed to agree on the punishment, and it was assessed by the court at 7 years.

Considering that the prosecutrix at the time was of the age of 16 years and the defendant of the age of 20, the punishment is excessive, and the judgment will be modified by reducing the sentence to 4 years, and as so modified is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    L. F. THOMAS v. STATE.
    No. A-5363.
    Opinion Filed April 5, 1926.
    (244 Pac. 1116.)

      D. W. Tracy and Arthur Leach, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Beckham county on a charge of criminal libel and sentenced to serve a term of one year in the county jail. From the record, we gather that in May, 1923, the defendant procured one Janie Duncan and her husband, W. P. Duncan, to go before a notary public, and he there dictated and had written an affidavit charging various persons with having had intercourse with said Janie Duncan without the consent of her husband. He later showed the affidavit to different persons, among them E. V. Hammond, named in the affidavit as Vonnie Hammond, and suggested to Hammond that he see the woman and stop it. The testimony of Hammond on this point is that defendant said that he had hi's name on the affidavit, and unless he “paid off” he would be sued. While the affidavit contains the names of 15 persons, the information charges the libel of E. V. Hammond only. Janie Duncan and W. P. Duncan were jointly charged with defendant, but before the trial the case was dismissed as to them and tried only as to defendant.

Various assignments of error are argued, several of which will be considered. It is first contended that the information is insufficient, in that the charging part of the information alleges the injured party to be V. E. Hammond. While the proof is Bonnie or Vonnie Hammond, E. V. Hammond testified that a great many people called him Vonnie or Bonnie Hammond, and that he was complaining witness. Under the provisions of section 2560, Comp. Stat. 1921, this failure to more definitely describe the person intended to be injured is not a fatal variance. Section 2560, Comp. Stat. 1921; Wells v. Ter., 1 Okla. Cr. 469, 98 P. 483; Ireton v. State, 29 Okla. Cr. 266, 233 P. 771; Leyerle v. State, 31 Okla. Cr. 179, 237 P. 871.

It is next argued that the information is insufficient in using the words “malicious” intercourse. The word “malicious” as used in the affidavit which is the basis of the charge of libel is evidently a misuse of the term, and it adds no particular meaning to the charge of intercourse, and may be stricken therefrom or treated as surplusage and the affidavit still be libelous. The affidavit pleaded, stating that various persons had intercourse with Janie Duncan without the consent of her husband at divers places, as “in a certain room at a hotel,” or “in his office,” “in the rear of meat market,” “in the shinnery patch,” construed in the natural sense and meaning of the words employed could not be understood other than as a charge of adultery and is libelous per se.

Next it is urged that there was error in admitting a purported copy of this affidavit. It was made to appear that the original was not in the possession of the state, nor of any of the witnesses for the state. The notary public who typed it testified that the copy was in substance the same as the original. Other witnesses who had seen the original were unable to state whether or not the purported copy was substantially correct. The evidence appeared to be as definite as could be had under the circumstances. The defendant testified at length and did not deny that the copy introduced was substantially correct, but stated that he did not know what the difference was.

It is then contended that the court erred in unduly limiting the cross-examination of the prosecuting witness Hammond. The witness Hammond was ásked on cross-examination if he had not stated in some conversation that he was guilty of the offense named in the affidavit. On objection this was excluded. This was error. The witness having testified in chief that he was not guilty of the charge, it was proper to show on cross-examination that he had made a different statement out of court. Jones on Evidence, par. 845; Underhill on Criminal Evidence, 293; Morris v. State, 30 Okla. Cr. 38, 236 P. 443; Hartwell v. State, 15 Okla. Cr. 416, 177 P. 383.

The defendant next contends that the truth is a complete defense. Section 22, art. 2, Oklahoma Constitution, is in part as follows :

“* * * jn an criminal prosecutions for libel, the truth of the matter alleged to be libelous may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous be true, and was written or published with good motives and for justifiable ends, the party shall be acquitted,”

Section 1803, Comp. Stat. 1921, reads:

“In all criminal prosecutions or indictments for libel, the truth thereof may be given in evidence to the jury, and if it be made to appear by the defendant that the matter charged as libelous was true, and in addition thereto was published with good motives, and for justifiable ends, or was a privileged communication, the defendant shall be acquitted.”

It is apparent upon a casual inspection of the Constitution and the statute above quoted that the truth is not a complete defense to a criminal libel, but, in order for the truth to be a defense, it must be made to appear to the jury that the libelous matter was written or published with good motives and with justifiable ends, or was a privileged communication. At common law, in a prosecution for criminal libel, evidence that the libelous matter was true was not admissible, and there prevails the maxim quoted by the poet, Tom Moore, in one of his satirical poems:

“For oh, ’twas nuts to the father of lies,
(As this wily fiend is named in the Bible.)
To find it settled by laws so wise,
That the greater the truth the worse the libel.”

The rule of the English common law was, in 1843, modified by Lord Campbell’s Act, in effect much the same' rule as now prevailing in this country, except that here the rule has been relaxed. Newell on Slander and Libel (3d Ed.) § 960; 17 R. C. L. § 229; 37 C. J. p. 142, §646.

Also it is argued that the demand made on the defendant that he produce the original affidavit was a violation of his constitutional right. Upon this point the following appears:

“* * * By Mr. Gipson: Comes now the state and demands of the defendant herein, L. F. Thomas, the original affidavit, a copy of which has been introduced in evidence in this case.
“By Mr. Tracy: The defendant excepts to the demand of the state. That would be in open violation of the Constitution of this state.
“By the Court: Objection of defendant sustained.”

.Such a demand in the presence of the jury is erroneous. Gillespie v. State, 5 Okla. Cr. 547, 115 P. 620, 35 L. R. A. (N. S.) 1171, Ann. Cas. 1912D, 259; Crump v. State, 7 Okla. Cr. 536, 124 P. 632.

■Section 21, art. 2, of the Constitution of Oklahoma, provides:

“No person shall be compelled to give evidence which will tend to incriminate him except as in this Constitution specifically provided.”

To demand -of a defendant or his counsel in the presence of the jury to produce evidence is error. Here, however, a purported copy of the affidavit demanded was already in evidence, and, since later defendant took the stand and testified that it was substantially a copy, the error is not reversible. In Bain v. United States (C. C. A.) 262 F. 667, a case very similar upon the facts, it was said:

“Later in the trial, and as part of his defense, Bain produced all that he had of these same checks and drafts, and offered them in evidence; and while, under many circumstances, such a production and offering could not be called voluntary, after what had occurred, yet we have no substantial doubt that he would have produced and offered them just the same, if the objectionable demand had never been made. * * *”

Nor was the error properly preserved. In the motion for. a new trial this demand was not assigned as error either directly, indirectly, or by inference. In the Crump Case, supra, the failure of counsel to incorporate a claimed error of law is held to be a waiver.

“We still adhere to the views expressed in the Gillespie Case, and if counsel for appellants had objected to this demand at the time it was made and had incorporated this matter in their motion for a new trial, so as to give the trial court an opportunity to correct the error, we would feel compelled to set aside this verdict and grant appellants a new trial. But the record shows that counsel for appellants did not complain to the trial court or preserve this ■question in the record for presentation to this court. * * *”

In the case of Ledgerwood v. State, 6 Okla. Cr. 105, 116 P. 202, it was also held:

“But, in order to bring before us on appeal errors of law alleged to have occurred during the trial, they must be incorporated in the motion for a new trial, and thereby submitted to the determination of the trial court, and the action of the trial court thereon excepted to and then brought before us by proper assignments in the petition in error.”

For failure to incorporate this assignment of error in the motion for a new trial and petition in error, the same has been waived.

Misconduct of special counsel, E. H. Gipson, is also assigned as error. An examination of the record shows that in the closing argument he said:

“Judge Tracy knows that, after Janie Duncan made the affidavit in this case, she made another affidavit in which she said, that the statements made in the original affidavit were false; that none of the men mentioned in said affidavit had had sexual intercourse with her; and that she had been induced by the defendant, L. F. Thomas, to make the origin nal affidavit.”

Objection to such statement as outside the record was made and sustained, and, immediately following, Mr. Gipson said:

“He (referring to counsel for the defendant), in view of his knowledge of this last affidavit in arguing that the matters stated in the original affidavit are true, brands himself as utterly unworthy of confidence, and you should never have any confidence in him again.”

Which statement was also excepted to. These statements of counsel are entirely outside the record. Mrs. Duncan had refused to testify. The only affidavit by her mentioned in the evidence is the one upon which the charge of libel was predicated. No other statement by her had been proven or referred to. Such statement was highly prejudicial, creating in the minds of the jury the impression that counsel for defendant were not acting in good faith, and that he had argued to them the truth of a matter which he knew to be false. It tends also to prejudice them against defendant, and to add to their idea of his culpability. This court has adopted a liberal rule in the matter of the argument of counsel, but, where pertinent facts are stated by counsel which are calculated to prejudice a jury where they are not borne out by the evidence, they may be sufficient to reverse a judgment. O’Barr v. United States, 3 Okla. Cr. 319, 105 P. 988, 139 Am. St. Rep. 959. See, also, Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Mulkey v. State, 5 Okla. Cr. 76, 113 P. 533.

For the reasons assigned, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.