text:
    JOHN CASSELMAN v. STATE.
    No. A-8887.
    Jan. 17, 1936.

      (54 Pac. [2d] 678.)

      J. C. Cornett and M. M. Thomas, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of embezzlement and was sentenced to serve a term of seven years in the penitentiary and to' pay a fine of $224,000.

Defendant was treasurer of Shidler-Webb City Independent School District No. 11 and was also an active officer of the American Exchange Bank at Shidler, in which he carried his account as school district treasurer. He was superseded as treasurer and an audit of his office followed in which a shortage of more than $112,000, the aggregate of several different items, was discovered. He was indicted and this trial followed. The testimony for the state appears ample and the sufficiency of the evidence is not questioned here. The state offered to show the dealings of defendant on the stock market to- account for the disappearance of these funds, but on objection this line of testimony was excluded. Defendant did not take the stand and offered no testimony. He argues five assignments of error: First, that the indictment is insufficient; second, the admission, of incompetent evidence and failure to confront; third, variance between the charge in the indictment and the case attempted to be proven; fourth, error in not requiring the election of offense by the state; fifth, error in the court’s instructions.

In discussing these assignments, 1, 3, and 4 will be combined.

It is the theory of the state that the defendant is charged under section 7761, Okla. Stat. 1931, the applicable part of which is:

“If any * * * officer * * * charged with the collection, receipt, safekeeping, transfer or disbursement of the public money * * * belonging * * * to any * * * school district * * * shall convert to' his own use or to the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer * * * by virtue of such office * * * shall be deemed guilty of an embezzlement of so much of said money or other property as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction * * * such * * * officer * * * shall be sentenced to imprisonment in the penitentiary * * * for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid.”

The charging part of the indictment alleges:

“* * * That * * * between the dates of July 24, 1932, and July 24, 1933 John Casselman * * * was then and there treasurer of * * * Shidler-Webb City School District No. 11 * * * and that as such * * * treasurer of said school district * * * was entrusted with and had in his possession and under his control by virtue of his trust as such officer and treasurer, the sum of $112,310.80 and that * * * while he was such officer and while he was entrusted with, the said sum of money as aforesaid, by virtue of a trust relation existing between him and the said school district, did then and there wrongfully, unlawfully, fraudulently and feloniously embezzle, convert and appropriate the said sum of money to his own use and to a use and purpose not, in the due and lawful execution of his said trust. * *

Defendant contends the charge is under the embezzlement statute in the General Penal Code, section 2041, Okla. Stat. 1931. That each item of trust moneys converted constitutes a separate and distinct offense and that a shortage comprised of different items of trust funds cannot be charged in a single indictment since to do so would violate the well-settled rule that only one offense can be charged in an indictment or information. Further, he contends the proof, if sufficient to prove an embezzlement by defendant, proves several different embezzlements and that the state was required to elect upon which it would rely for conviction. Embezzlement is defined by section 2037, Okla. Stat. 1931, as the fraudulent appropriation of property by a person to whom it has been intrusted. There are various statutes of classification of the crime of embezzlement following section 2041 of the Code and also sections 7466, 7761, and other sections. Some of these various sections amplify or enlarge the foregoing definition, as it may apply to an embezzlement by a particular class of employees, officials, or persons under special circumstances.

Defendant further argues that there is no allegation of ownership of the funds embezzled, citing Ballew v. State, 11 Okla. Cr. 598, 149 Pac. 1070, and Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554. The language of the indictment is a sufficient answer. The allegation that he was intrusted with and received and had possession of the money by virtue of his office as treasurer of the school district is an allegation of ownership in the school district.

Considering the wording of the statute and of the indictment, we are of the opinion the charge is under section 7761, supra, and not under section 7466, sometimes 'Called the “shortage” statute, nor the provisions of the general code, section 2041, and that the indictment is sufficient. The trial court considered section 7761 the applicable section and the instructions are based on it. In passing, we are further of the opinion that section 7466 does not apply to> a school district officer, since he is not required to malee monthly or quarterly reports, under section 7448, Okla. Stat. 1931, but there is also the general provisions of section 3418, Okla. Stat. 1931, applying to all officers, which reads:

“Upon the death, resignation, suspension or removal from office of any officer, or upon the expiration of his term, all public moneys, books, records, accounts, papers, documents and property of other kinds in his hands or held by him by virtue of his office, shall be delivered to his successor.”

In Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092, 1101, the contention was made that the information was duplicitous. This court said:

“It may be added that there are numerous and well-considered authorities to' the effect that, in the trial of cases for the crime of embezzlement by public officers, the various acts of embezzlement, if more than one act be proven, are often treated as a series or general scheme to embezzle the public funds, culminating in the embezzlement of so much of the money or funds for which the officer is unable to account at the end of his term or at the time he vacates office. The reason for such rule is based upon public necessity, in that history has proven that the offense of embezzlement by public officers most always is constituted of a series of petty and continuous peculations, manifestly difficult, if not impossible, of proof separately. So that in cases of this class a different rule as to election of offenses is established than in cases of statutory rape, the sale of intoxicating liquors, and the like, and this court could with propriety hold, following numerous authorities to that effect, that it was not error to refuse to compel an election between particular acts by the state in this case. At least the defendant would have no just room to complain of such a decision, for the reason that, all the acts having been submitted, jeopardy attaches to all of them, and the effect of the court’s action was to make but one offense out of the several transactions. The offense, being the outgrowth of a general scheme, was continuous in its nature, forming an embezzlement of that amount of money which the public officer during his term, and within the period of the statute of limitations, had, pursuant to such general scheme, finally converted to' his own use or to some other use and purpose in violation of the statute. But it is not necessary to rest our conclusion solely on that theory.” Citing Starling v. State, 90 Miss. 255, 48 So. 952, 13 Ann. Cas. 776.

In Griswold v. State, 23 Okla. Cr. 136, 212 Pac. 1018, citing several authorities in support, it was held:

“A public officer charged with the safekeeping and disbursement of public money may, by a series of personal appropriations of small sums of such public fund, render himself liable to prosecution for the embezzlement of a particular gross amount, as constituting but one offense, under the provisions of our statutes defining embezzlement of funds willfully appropriated to uses not in keeping with his official trust.”

In State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, 1094, the trial court sustained a demurrer to the information. The state appealed. This court in reversing the judgment said:

“The information, in our opinion, does not state more than one offense. This court clerk may have converted to* his own use funds of which a part belonged to the state, a part to the county or other municipality, a part to* private individuals or firms, as rebates and costs, and a part being money belonging to judgment creditors. In this regard section 7437 is broader and more comprehensive than section 3213. The thing prohibited by the provisions of section 7437 is not the misappropriation of any particular item or fund, but the misappropriation of any and all funds, in violation of his trust as a public officer. In this case the embezzlement charged, in the amount of $5,845.61, was probably made up of a multitude of items derived from various sources. But one offense is stated, and it is not necessary in such a case to plead specifically a description of the individual items composing the aggregate. The manifest purpose of this statute was to make a blanket provision covering any or all such delinquencies, constituting but one offense. Otherwise there is no excuse for this statute. If each item constituted a separate offense, to be separately pleaded and proved, then the provisions of section 2671, B. L. 1910, a section of the General Penal Code, would have been sufficient. The difficulty and sometimes utter impossibility of making specific allegations and proof in such cases was doubtless recognized by the Legislature, which enacted section 7437 to meet this apparent defect inherent in the general embezzlement statutes of the Criminal Code.”

Defendant complains of instructions 5, 6, and 7. No. 5 correctly defines embezzlement. No. 6 states the duty of an officer on the expiration of his term to* deliver to his successor all funds and securities in his possession as such official. No. 7 simply tells the jury the facts necessary to be found to warrant a conviction. In this connection defendant argues that the proof merely shows a failure to account to his successor and not an embezzlement. Also, he argues there is no* proof of a legal de-maud. In the Griswold Case, supra, in syllabus 2 this court held:

“Where a public officer willfully fails or refuses to account for, pay, and disburse public money in his charge as the law directs, a demand for such payment is not necessary to complete the crime of embezzlement as defined by statute. Under such circumstances, the law itself constitutes sufficient demand.”

Defendant also complains that in No. 5 the court told the jury that a distinct act of taking was not necessary to constitute embezzlement. The court followed the language of the statute, section 2038, Okla. Stat. 1931.

Defendant argues the court erred in the admission of evidence, in that- defendant was not confronted with the witnesses against him but that an expert was permitted to testify to the meaning of summaries from books and records which were not produced. This contention is directed mainly to- the testimony of the witness Gamble, a certified public accountant, who- testified in substance that he had made an audit o-f the books and records and had filed his report. This report was voluminous and intricate. Over objection he was permitted to summarize the report and the facts disclosed by it. The report was then admitted in evidence, over objection that the various books and records from which the report had been compiled were not in evidence. The witness testified the report was compiled from information obtained by him from the bank and school district records and statements from the fiscal agency; that it took him some fifteen or twenty days to prepare the report and took considerable research of documents and records. Witness stated he did not know where the books and records from which the audit was made were at the time.

It is well settled that where hooks of account are in evidence a qualified witness, upon his qualification having-been shown, may make a summary or digest of the books to enable the jury or court to arrive at the meaning of the same and to understand the evidence and the financial conditions and results of the accounts shown by such books. It is, however, equally well settled that an expert who testifies in such case may not state simply that the books show certain facts, but the books themselves must be introduced as primary evidence or their absence satisfactorily accounted for, and the testimony of the expert is secondary and explanatory only. 11 R. C. L. 630; 22 C. J. p. 1017, § 1303.

In Pierce Petroleum Corporation v. Osage Coal Co., 133 Okla. 130, 271 Pac. 675, 676, our Supreme Court said:

“It is not error to admit in evidence a digest or statement showing the financial condition and transactions of a company covering a long period of time, prepared by an expert accountant, who qualifies as such expert and testifies that the statement correctly reflects the condition of the company as shown by the books, when the books are all in court and opposing counsel have full opportunity to cross-examine the witness as to the correctness of the statements, and the books are voluminous and such as would require an explanation by an expert accountant.”

See, also, Hooven v. First National Bank in Ardmore, 134 Okla. 217, 273 Pac. 257, 66 A. L. R. 1203; Bell v. Tackett, 134 Okla. 164, 272 Pac. 461; Avery v. Abraham, 114 Okla. 101, 243 Pac. 728; Louisville Bridge Co. v. Louisville & N. R. Co., 116 Ky. 258, 75 S. W. 285; Elmer Co. v. Kemp (C. C. A.) 67 F. (2d) 948; State ex rel. v. Maryland Cas. Co., 334 Mo. 259, 66 S. W. (2d) 537; Thompson v. Walker, 253 Mich. 126, 234 N. W. 144; Watson v. Gardner, 183 Minn. 233, 236 N. W. 213; Fox v. Baltimore & O. R. Co., 34 W. Va. 466, 12 S. E. 757; Stolz, v. Scott, 28 Idaho, 417, 154 Pac. 982.

The court also admitted in evidence the letter of transmittal of the accountant in which his conclusions were embodied, which is inadmissible under the rule announced by this court in Otey v. State, 39 Okla. Cr. 61, 263 Pac. 155. The admission of this testimony and the audit without the books from which it was made being in court, and the admission of the accountant’s letter of transmittal, is error requiring a reversal.

The case is reversed and remanded.

DAVENPORT and DOYLE, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    Ex parte CLAUDE PINKERTON.
    No. A-9052.
    Jan. 21, 1936.
    (54 Pac. [2d] 222.)

      Phil K. Oldham, for petitioner.
    Mac Q. Williamson, Atty. Gen., and A. Camp Bonds, Co. Atty., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus to be let to bail. Petitioner, a white man, is charged with murder in Muskogee county in the killing of Alonzo Ashley, a negro. He alleges the proof is not evident nor the presumption great, and that he is entitled to bail on the evidence of the state. He had a preliminary hearing before a magistrate in which the state introduced ample proof of probable cause. Petitioner did not take the stand and offered no testimony. As a trial has not been had, we deem it unnecessary to make a recital of, or comment on, the state’s testimony.

Article 2, § 8, of the state Constitution, provides, in substance, that all persons charged with crime shall be allowed bail except for capital offenses where the proof is evident or the presumption great. After one charged with a capital offense has been held for trial by a committing magistrate, he may make application to be let to bail before a district or’ superior court or by a justice or judge thereof or to this court. Section 2814, Okla. Stat. 1931. Upon an application for bail by habeas corpus, the burden is on the petitioner to show that he is illegally deprived of his liberty; that is, it must be made to appear that the proof is not evident nor the presumption great that he is guilty of a capital offense. Ex parte Lacy, 20 Okla. Cr. 440, 203 Pac. 1050; Ex parte Smith, 31 Okla. Cr. 132, 237 Pac. 464; Ex parte Davis, 48 Okla. Cr. 199, 290 Pac. 356; Ex parte Welsher, 53 Okla. Cr. 81, 8 Pac. (2d) 76.

This court indulges no presumption for the accused either of justification, mitigation, or reasonable doubt by reason of a conflict of testimony. In general, where there is a sufficient showing of probable cause of the commission of a capital crime by defendant, he is not entitled to bail where he does not take the stand and disclose his defense and submit himself to cross-examination. There is little use for a defendant to apply to this court for hail where he has not taken the stand.

The writ is denied.

DAVENPORT and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    CHESTER SASSER v. STATE.
    No. A-8872.
    Sept. 6, 1935.
    Rehearing Denied Jan. 21, 1936.
    (54 Pac. [2d] 401.)

      Williams, Cowan & Benedum and T. J. Hinshaw, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Chester Sasser, was convicted in district court of Cleveland county on the charge of robbery with firearms, and in accordance with the verdict of the jury he was on September 15, 1934, sentenced to imprisonment in the penitentiary for a term of five years.

The jury, after rendering their verdict, filed a report with a recommendation to the court that the defendant be paroled.

The information charged Chester Sasser, Robert Red-wine, and Leo' Cox jointly with having robbed John Shaw and Mrs. Shaw, by the use of a pistol, of $9 in money and other personal property.

The defendants Redwine and Cox each entered a plea of guilty and were serving their terms when this case was tried.

The only question involved in this appeal is the sufficiency of the evidence to sustain the verdict and judgment.

Mr. and Mrs. John Shaw owned and operated a small store about five miles east of the town of Noble and about eight miles north of Lexington, commonly known as the Maguire store. On Sunday evening July 15, 1934, about dusk, three men in a Buick two-seated sedan drove up from the east, circled around, and stopped the car in front of the store. It appears from the testimony of Mr. and Mrs. Shaw that they were sitting on the porch. Redwine and Cox, sitting on the front seat, left the car; the other man was laying on the back seat. Cox said they wanted ten gallons of gas. Mrs. Shaw put ten gallons in the tank; then they said they wanted some oil. Mr. Shaw brought the oil and told Mrs. Shaw to get the lantern. Cox said, “You don’t need that,” and he put in the oil; then they entered the store and bought some canned meat, crackers and cookies and a couple of cans of tobacco. While Mrs. Shaw was figuring their bill, Cox said to Mr. Shaw, “Step over there by that woman.” He was holding a gun in his hand. Mr. Shaw held up his hands and stood by his wife. Redwine went to the cash register and took the money, about $10. About that time the car motor started. Cox searched Mi*. Shaw. They then took the goods they had pretended to buy and backed out of the store. They do not identify the plaintiff in error. After the robbery the car was driven east. Immediately after the robbery a report of the same was telephoned to the sheriff’s office.

The only question for the jury to pass upon was whether plaintiff in error was present and participated in the commission of the crime.

Plaintiff in error operated a filling station about three miles north of Lexington and about six miles south of the ,Shaw store. Redwine and Cox had been staying with him for more than a week before this robbery. The day before the robbery Sasser procured a thirty-eight Smith and Wesson pistol from a man in Lexington. Red-wine was with him and bought cartridges for the gun at a hardware store in Lexington. The three defendants traveled together from some time Sunday morning until about sundown that day, when they parked the car a little less than a mile east of the Shaw store.

Doc Cline testified that he lives in Tribhey and has known Chester Sasser and Leo Cox for more than ten years; that together with Robert Redwine they came to his home about 10 o’clock Sunday morning July 15, 1934, had dinner there that day and left his place 10 minutes after six that evening.

Willie Garber testified that he lives a quarter of a mile east of the Maguire store and had known Chester Sasser eight or nine years; was walking over to Liberty Church, and about three-quarters of a mile east of the store a Buick sedan facing west was parked on the north side of the road; three men were in the car; one he recognized as Chester Sasser. It was just about good sun-doAvn; as he passed, Chester called to him, and asked for the makings of a cigarette; that he stopped, handed him his tobacco sack and waited until he rolled a cigarette; that he did not recognize the other men.

Two other witnesses testified that a little after sundown they passed a Buick sedan, with three men in it, parked on the north side of the road about three-fourths of a mile east of the Maguire store.

Leo Cox, codefendant, testified that after leaving Doc Cline’s they drove to three miles north of Lexington, then east to Willowview, then north, then west, and stopped about a mile east of the Maguire store for about an hour. Asked what conversation he had there with Chester Sasser, he ansAvered, “He wasn’t in the car at that time. Robert Redwine and a fellow from Seminole was there in the car.” He was then asked, “I will ask you to state if you didn’t testify on the preliminary hearing in this case that Chester .Sasser was there in the car at that time,” and answered, “I did.” Objection sustained.

Bud Jennings, sheriff, testified that Monday evening after the robbery he had a conversation with Sasser in the county1 jail and told him he had a report on him of riding around in a stolen Chevrolet coupe, and he said, ‘No I haven’t been in any Chevrolet coupe, I can prove that by Leo Cox and Robert Redwine, I was with them all day Sunday and went with them to Doc Cline’s”; that when they drove back, they let him out at the Lone Star schoolhouse about 9 or 9:30 that night. Then he told him about persons seeing him parked near the Maguire store and about the highjacking, and he said, “We parked out there, but we didn’t highjack the store.”

Ivan Kennedy, undersheriff, testified that he arrested Chester Sasser at his home three miles north of Lexington, and had a conversation with him Monday evening in the jail in the presence of several other persons, and Sasser said he had been with Leo Cox and Robert Redwine all day; that they had been staying at his place and drove over to Doc Cline’s and returned late in the evening and come in on the road over east of Maguire. That they let him' out at the Lone Star school between 9 and 10 o’clock. That four days later in the jail, several others being present talking with Sasser, some one told him about getting the tag number of the car used at the highjacking, and Sasser said, “There was no tag on it when we were there at Maguire’s store that night,” that they had taken the tag off the car.

Two other witnesses testified they were present and heard plaintiff in error make this statement.

Ivan Eoss testified that he was at the Lone Star schoolhouse that evening and between 9 and 9:30 Chester Sasser asked him to take him home and he told him he could not, that he had to take his folks home.

Frank Claunch testified that he was in the Lone .Star school and Chester Sasser motioned to him to come out, then Chester asked him if Pauline, his wife, was there, and he told him he had not seen her. He would place the time about 9 o’clock.

At the close of the evidence a motion was made by the defense for a directed verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction, which was denied.

Plaintiff in error did not take the witness stand, and there was no evidence offered on his part.

It is argued that the testimony of Cox, codefendant,' shows that plaintiff in error was not the man in the car at the time of the robbery, and that the testimony of two witnesses called by the state shows that he was six miles from the store at the time of the robbery.

The jury evidently discredited the testimony of the codefendant witness Cox.

The evidence connecting plaintiff in error with the commission of the robbery was mainly circumstantial. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the defendant with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt, and, the jury in this case were so instructed by the court. It is the province of the jury to determine the facts and circumstances surrounding the commission of the crime charged, and if, assuming as proved the facts the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the defendant, the proof cannot be said to have failed. Accepting, therefore, as true the testimony showing preparation by procuring the pistol the day before in company with Bedwine, codefendant, who purchased the ammunition. The fact that the three defendants were together that day and the identification of plaintiff in error in the car with his codefendants near the scene of the robbery a brief time before its commission, considered in relation to the undisputed facts and circumstances in evidence and plaintiff in error’s voluntary admissions to the officers made shortly after the robbery, we think the issue was for the jury and not for the court; therefore the court did not err in refusing to advise the jury to return a verdict of acquittal.

Upon the whole case, we find that plaintiff in error had a fair and impartial trial, and that the evidence amply supports the verdict. The judgment appealed from is therefore affirmed.

DAYENPOBT, P. J., and EDWABDS, J., concur.


text:
    JESS BROWN v. STATE.
    No. A-8974.
    Jan. 24, 1936.
    (54 Pac. [2d] 210.)

      E. E. Ammons and Hazen Green, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county of having unlawful possession of intoxicating liquor, and 'his punishment fixed at 30 days’ imprisonment and a fine of $50.

The information alleges that defendant had in his possession one pint of whisky with the unlawful intent to “* * * barter, sell, furnish, give away, transport and otherwise unlawfully dispose of same.”

The main question presented is the sufficiency of the evidence.

The chief of police testified that he, the sheriff and a deputy sheriff made a search of defendant’s premises; that they found about a pint of whisky and some empty bottles in defendant’s home. The sheriff and the deputy sheriff testified they found a little over a half pint of whisky, one or two glasses and 24 empty pint bottles. On ■cross-examination both said that one Van Brunt had lived at the place some time before defendant moved there and that during Van Brunt’s residence the reputation of the place was bad as to being a place where liquor was sold. Also one Dow Bailey testified the reputation of the place was bad, and, further, that defendant told him he had sold his boy a pint of liquor. One Elsie Grayson testified her father went to defendant’s home at times and came home drunk and sometimes would bring whisky with him. On cross-examination she testified he Avould be drunk at times when he went over there; that he drank a lot. This is the substance of the state’s testimony.

When the state rested, defendant moved the court to' instruct the jury to return a verdict of not guilty on the ground of insufficiency, which was denied.

Defendant testified the liquor in question belonged to' one Bud Padgett, who was living with him, and was at the place at the timej of the search; that they had been drinking hot toddies at the time of the search; he denied telling Bailey he had sold his boy whisky. Charlie Paxton testified he lived comerwise across the street from defendant, that before defendant moved to this place one Van Brunt had lived there; that before and after defendant moved there people would come to his house inquiring for Van Brunt and for whisky.

An examination of the record convinces us the evidence is not sufficient to sustain the judgment. We are loath to reverse, a case on the insufficiency of the evidence, but on a charge of unlawful possession the finding of so small a quantity of whisky — “a little over a half pint,” as one of the state’s witnesses testified, under the circumstances here shown, which indicate defendant and Padgett were drinking it, Avill not sustain the judgment. The proof more nearly shows the maintaining a nuisance than an unlawful possession. Defendant likely had transgressed the liquor laws at other times, but on this particular occasion there is a lack of evidence to show an unlawful possession.

The case is reversed.

DAVENPORT, and DOYLE, JJ., concur.


text:
    BOB PETERSON v. STATE.
    No. A-8984.
    Jan. 24, 1936.
    (54 Pac. [2d] 209.)
    Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the district court of Pottawatomie county February 7, 1935, charged that the defendant, Bob Peterson, did on the 18th day of December, 1931, in said county unlawfully and feloniously buy and receive from John Doe, two throw rugs, then and there knowing the same were stolen property.

Upon arraignment on the same day, he entered a plea of guilty as charged, and the court appointed February 28th as the time for pronouncing judgment and sentence, at which time the court fixed his bond in the sum of $2,000; the same being given and approved on said date. Thereafter, the defendant appeared in open court in person and by his attorney, and moved the court for permission to withdraw his plea of guilty heretofore entered, and to substitute therefor and enter a plea of not guilty, which motion was by the court denied.

Thereupon the court entered judgment and sentenced the defendant to imprisonment in the state penitentiary for a term of 18 months.

After judgment, the defendant filed his motion for permission to withdraw his plea of guilty, also motion for a new trial, on the ground that his plea of guilty was entered by mistake, misunderstanding and ignorance, and through intimidation.

The assignments of error present but two questions: First, whether the court erred in denying appellant’s motion for leave to withdraw his plea, of guilty and plead not guilty; second, whether the court erred in overruling his motion for new trial.

Our Code of Criminal Procedure provides:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Section 2961, St. 1931.

The granting or denying of permission to withdraw a plea of guilty, either before or after judgment, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court. Jenkins v. State, 6 Okla Cr. 516, 120 Pac. 298; Mullen v. State, 28 Okla. Cr. 218, 230 Pac. 285.

In support of these motions the defendant as a witness testified that the county attorney informed him that he had a hold-over for him from three county attorneys; from Oklahoma City, from Ardmore, and from Seminole; and the county attorney also threatened to file five other charges against him. After giving bond he went in person or had his attorney go to each of these counties, and found that there was not and had not been any charges pending against him in these three counties.

The record shoAvs that upon his arraignment the defendant was not represented by counsel.

It has been held that the constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the time of the trial; that the spirit of the provision contemplates the right of accused to consult with counsel at every stage of the proceeding.

In Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194, it Avas held :

“A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance.”

While promptness in the apprehension and trial of persons accused with crime is commendable, the law has provided how trials should be had, and the enforcement of law is to be arrived at only by adhering to legal requirements and principles of justice and fair trials, as provided by constitutional provisions, legislative enactments, and Avell-established rules of law.

Upon the record before us we think the trial court should have granted the defendant’s motion for leave to AvithdraAv his plea of guilty, and should have permitted him to enter a plea of not guilty.

The judgment appealed from is therefore reversed and the cause remanded, with direction to sustain the defendant’s! motion for leave to' withdraw his plea of guilty.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, P. J.

text:
    W. P. SHOEMAKER v. STATE.
    No. A-8940.
    Jan. 10, 1936.
    Rehearing Denied Jan. 31, 1936.
    (53 Pac. [2d] 1133.)
    David Tant, forj plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of shooting with intent to kill; was tried and convicted' of the crime of assault to do bodily harm; and sentenced to' imprisonment in the county jail of Payne county, Okla., for a term of one year.

The facts in brief, as disclosed by the record, show the defendant is a man of about 73 years of age; the boy the defendant is charged with shooting is a school boy, and was about 12 years of age at the time of the shooting. The home of the defendant is located near the schoolhouse, where the party injured, Arthur Lewis, was attending school. Near the road that Lewis passed going to and from school the defendant had a fruit orchard on his farm. On the 26th day of October, 1934, after school was out Arthur Lewis and some other children were passing the orchard, and Arthur went in through the fence, as he stated, for the purpose of getting some apples. After he had gotten through the fence Arthur states he discovered the defendant a short distance from him with his gun pointed at him, and the gun fired, hitting him, and he fell to the ground; the other children ran for help and Lewis was taken to the hospital. The doctor said some of the shots had punctured a lung and intestines, but as they were so small it did not develop any serious condition.

There is no denial that the defendant fired the shot that injured the prosecuting witness Arthur Lewis, and there is no denial by the prosecuting witness that he had gone into the defendant’s orchard for the purpose of picking. apples from one of the trees.

The defense made by the defendant is that he had a dog that was gun shy and he had been out that day shooting rabbits, and when he fired the shot it was for the purpose of training the dog and breaking him from being gun shy; that he had not shot at the prosecuting witness and did not) know he was in the orchard.

The record further discloses that there had been some contention by the defendant that the children had been coming into the orchard and picking some of his fruit, and the defendant had sent to the school teacher, Mr. Earnest Arnold, a note, some time prior to the date of the shooting, stating to Mr. Arnold, as follows:

“Mr. Arnold.
“Dear sir:
“Do not send the boys for your mail unless you watch and time them. They come over and steal my fruit. I shot at the Bickel boys yesterday. They have been in my orchard every day last week. Make them go around the road, then they won’t get into trouble.
“Wm. Shoemaker.”

James Bickel was a witness in the case against the defendant, as he was returning from school with the prosecuting witness at the time he entered the orchard of the defendant.

The defendant has assigned ten errors alleged to have been committed by the trial court, which he insists is sufficient to warrant a reversal. The first assignment discussed by the defendant is:

“The trial court erred in overruling the motion of the defendant to set aside the indictment.”

The defendant insists that the indictment upon which he was tried was not found or indorsed, presented, or filed, as prescribed by the statutes and laws of the state of Oklahoma; that persons were permitted to be before the grand jury to advise them, the same being contrary to law.

Testimony was taken on the question raised by the defendant as to the indictment, argument presented, and the court overruled the defendant’s contention, holding that the indictment was properly returned and indorsed by the grand jury. The main argument presented by the defendant as ground for setting aside the indictment is that the record affirmatively shows upon its face that the same was signed by J. M. Springer, special attorney appointed by the Governor. It was not denied by the state that J. M. Springer was present in the grand jury room at the time the grand jury was hearing evidence against the defendant. The record further shows that Mr. Springer was not in the grand jury room while the jury was considering its votq or voting. The record discloses that Mr. Springer was duly and regularly appointed by Wm. H. Murray, Governor of the state of Oklahoma. The appointment of Mr. Springer has by the argument of the defendant been admitted, but the main contention he makes is that under section 2863, O. S. 1931, there is no authority for the Governor to appoint anyone to' be present in the grand jury room, citing in support of his contention, Hartgraves v. State, 5 Okla. Cr. 266, 114 Pac. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180; State v. Maben, 5 Okla. Cr. 581, 114 Pac. 1122.

Section 8056, E. L. 1910, now section 3527, O. S. 1931, reads as follows:

“The Governor shall have power to employ counsel to protect the rights or interests of the state in any action or proceeding, civil or criminal, which has been, or is about to be commenced, and the counsel so employed by him may, under the direction of the Governor, plead in any cause, matter, or proceeding in which the state is interested or a party, may prosecute offenses against the law of the state, and may institute and conduct proceedings before grand juries: Provided, that nothing herein contained shall limit the power of courts of record to appoint an attorney to prosecute criminal actions in such courts when the county attorney is disqualified or unable to act.”

In Viers v. State, 10 Okla. Cr. 28, on page 40, 134 Pac. 80, 86, in discussing the question involved in this case, this court in part stated:

“Under section 8056, Rev. Laws 1910, the Governor is given the power to employ counsel to protect the rights or interest of the state in any action, civil or criminal, and the counsel so- employed under the direction of the Governor may prosecute offenses against the laws of the state, and may institute and conduct proceedings before grand juries.”

This court holds that under the appointment from the Governor, Mr. Springer had the authority to appear in the grand jury room and assist in presenting the evidence to the grand jury, and as the record shows he was not present when the grand jury was considering its vote and voting, we hold that the motion of the defendant to set aside the indictment was without merit and properly overruled.

It is next urged by the defendant that the court erred in permitting Earnest Arnold, one of the witnesses, to testify to- the contents of a note he claims to have received from the defendant in this case; the defendant contending that the testimony as to the loss and destruction of the. note not being sufficient to warrant the court in admitting secondary evidence. Earnest Arnold testified that the following week after he received the note that had been introduced in evidence he received another note from the defendant, but he did not know at the time he was testifying where the note was; he said in his opinion it was washed up in the washing machine; that he had made a search for it hut had been unable to locate it; that the note was from Mr. Shoemaker; and that it was in the same handwriting, as the note that he had introduced in evidence, signed by Wm. Shoemaker. Witness was then permitted to give in substance the contents of the note, and stated it was delivered to him by Louise Davis.

The defendant insists that the evidence of the witness Arnold was improperly admitted, and relies on Davis v. State, 31 Okla. Cr. 109, 237 Pac. 471, to sustain his contention. In the second paragraph of the syllabus in the Davis Case, this court said:

“Parol testimony, as to the contents of a telegram, is not admissible, not being the best evidence, until proof of loss or destruction of the original telegram is made. But, error in admitting such secondary evidence without a proper predicate is harmless where an accused, in his cross-examination, admits sending the telegram and its contents.”

We hold that the showing made by the state as to the loss or destruction of the second note or letter received by the witness Arnold, which was delivered to him by Louise Davis, wherein he stated he had searched for the document and failed to find it and in his opinion it was washed up in the washing machine, is a sufficient showing to permit the introduction of oral evidence as to the contents of the note or letter.

The evidence in this case is conflicting, and this court has many times held that where there was any competent evidence to sustain the verdict, though conflicting, this court would not interfere with the verdict. All of the testimony of the eyewitnesses sIloavs the defendant shot at the injured party; his note to the school teacher advised him he had shot at the Bickel boys, and advised him to have the parties go around the road; that they had been stealing his fruit, and if they did not go around the road they were liable to get shot. The jury heard the testimony of the defendant as to why he fired the shot, and from their action evidently did not believe his statement. However, the jury seems to have taken a very liberal and sympathetic view of the situation and gave the defendant the small sentence of twelve months in the county jail.

The record has been carefully read, and our conclusion is that the instructions given as a whole fully covered every phase of, the case. We find nO’ errors that would authorize this court in reversing the conviction. Our conclusion is that the defendant had a fair and impartial trial, with every1, right accorded to him that the law justifies or requires.

The judgment of the trial court is therefore affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    R. R. ROLLINS v. STATE.
    No. A-8941.
    Nov. 8, 1935.
    Rehearing Denied. Jan. 31, 1936.
    (54 Pac. [2d] 224.)

      .Smith & Harbison, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Morris Massey, with the crime of obtaining property under false pretense; convicted and sentenced to imprisonment in the state penitentiary for three years, and fined $1,500.

Morris Massey was jointly charged with this defendant, and whose case in this court was No. A-8708, 58 Okla. Cr. 76, 49 Pac. (2d) 812, involved the same charge. The same facts are presented in this case as were presented in No. A-8708, therefore it is not deemed necessary to set out in this opinion the evidence.

There are no fundamental or prejudicial errors in the record. Following the holding in No. A-8708, we hold that the evidence is sufficient to sustain a conviction. After considering the facts and circumstances, and the statement in the brief of the Attorney General, we hold that the sentence of three years in the state penitentiary and a fine of $1,500 is excessive, and should be modified to three years in the state penitentiary, and, as modified, the judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    JESSE H. WHITE v. STATE.
    No. A-8971.
    Jan. 31, 1936.
    (54 Pac. [2d] 214.)

      W. E. Rice, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of second-degree burglary as a second offense and was sentenced to serve a term of ten years in the state penitentiary. The charge is under article 25, chap. 15, Oída. Stat. 1931 (section 1927 et seq.), which defines “burglary” in the different degrees and fixes punishment. Punishment for second-degree burglary is not less than two nor more than seven years. Article 6, chap. 15, Okla. ,Stat. 1931 (section 1817 et seq.), provides a greater punishment for one who previously has been convicted of an offense punishable by imprisonment in the penitentiary, whether such previous conviction be within or without this state. In case of a second or subsequent conviction the minimum punishment is the longest term fixed for a first offense; the minimum sentence for burglary in the second degree on a second conviction is ten years, the term fixed by the jury in the instant case.

The evidence is circumstantial. At the time charged a store in Ponca City was broken into- and a number of cartons of cigarettes stolen with a small sum of money consisting of 25 cents in nickels and $1.50 in pennies. The day after the burglary defendant was in Tonkawa with cartons of cigarettes of the same brand as those stolen, which he was attempting to sell for less than their real value. In explaining Ms possession to different prospective purchasers, he made different and false explanations of his possession. He left the place where he was staying at Ponca City in a taxi and paid the! driver with pennies. There are various other circumstances tending to prove guilt. The evidence is ample to sustain the judgment.

The information alleges that prior to the commission of the offense in this case the defendant had been convicted in Sedgwick county, Kan., of both a burglary and a grand larceny and had served a term in the state penitentiary at Lansing. Certified copies of the record of the prior conviction, judgment, and sentence were admitted by stipulation of the county attorney and counsel for defendant.

Defendant contends that the evidence is insufficient to sustain the judgment; that it creates no more than a suspicion of guilt; that the circumstances proven are consistent with a reasonable hypothesis of innocence. It is ' further! argued that even if this court should find the evidence sufficient to sustain the judgment, the proof of prior conviction in the state of Kansas is that of a grand larceny and not of burglary. On this point counsel asserts:

“* i:' * It is clear that the defendant was sentenced by the Kansas Court for the crime of grand larceny and not for burglary * * *, that there is no evidence in the record anywhere to support the conviction of burglary committed in the state of Kansas.”

The journal entry of judgment admitted by stipulation recites a conviction for grand larceny and a sentence to the Kansas penitentiary for a term of five years.

It is therefore evident that there is no variance in the charge for which defendantf was convicted in the state of Kansas and in the information here alleging the prior conviction, and even if there were variance we think it would be immaterial under the provisions of article 6, Chap. 15, Okla. Stat. 1931.

We find no material error.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    TOM HOLLAND v. STATE.
    No. A-8973.
    Jan. 31, 1936.
    (54 Pac. [2d] 216.)
    M. P. Hudson and M. D. Deck, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McCurtain county of larceny of a domestic animal, and was sentenced to serve a term of 3 years in the state penitentiary.

The principal contention made is that the court admitted incompetent evidence obtained by an illegal search of the residence of defendant. The charge is larceny of a hog, and the testimony is that officers, with a search warrant, discovered the hog meat concealed in the residence of defendant. Prior to the trial, defendant’s counsel filed an unverified motion to suppress evidence, alleging the search warrant was void for the reason it was issued on an insufficient affidavit. The motion states it has attached thereto at copy of the search warrant and the affidavit for search warrant, and attached to the motion is what purports to be uncertified copies. Defendant’s counsel called this motion to the attention of the court, whereupon the following took place:

“By Mr. Dick, after reading the motion to the court: We object to the state using any testimony. By the Court: Do you want to submit any proof? By Mr. Dick: It is void on its face. By the Court: The motion will be overruled. By Mr. Dick: All right, give us an exception to the order overruling the motion to suppress.”

Neither the affidavit nor the search warrant were produced, and no witness was called to prove these papers were what they purported to be and were the instruments of authority for the search.

This court has held that where a defendant seeks to exclude evidence on the ground it has been obtained by an illegal search warrant, the burden is on him to prove invalidity. In Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370, we held:

“The burden rests upon the defendant, where he attacks the sufficiency of the affidavit for the search warrant, to exhibit the same to the court in support of his objections, and the court upon an examination of the affidavit and the warrant must summarily determine the sufficiency of the affidavit and the warrant and the admissibility of the evidence. The presumption of law is that the affidavit and the warrant are sufficient and the search and seizure legal. If the defendant desires to attack the affidavit or the warrant he should subpoena the magistrate issuing the same to appear and produce the affidavit and warrant upon which the search was made.”

Defendant having failed to introduce the affidavit, there was nothing before the trial court upon which he could determine its sufficiency. It was not error, therefore, to' overrule defendant’s motion to suppress the evidence.

In Winger v. State, 43 Okla. Cr. 140, 277 Pac. 947, we held:

“The burden of proving the invalidity of the search under a search warrant rests on the defendant, and, where the case-made does not contain the affidavit nor search warrant, this court will presume that the search was legal.”

And again in Stewart v. State, 52 Okla. Cr. 298, 5 Pac. (2d) 173, this holding was reiterated.

In the instant case, though counsel was offered an opportunity to make proof of the invalidity of the search warrant, he did not do so, but rested on the statement, “It is void on its face,” presumably referring to the purported copies of the affidavit and search warrant. If defendant relied on this invalidity, it was his duty to introduce the original affidavit and search warrant and to' make proof that it was by virtue of these the officers acted. Failing to do this, the court could not presume the purported copies were the records of the magistrate, and were instruments upon which the officers made search. Under the condition of the record here shown the court properly overruled the motion to suppress.

We are of the opinion, however, the punishment assessed is excessive and should he reduced to a term of 2 years. As modified, the case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: DAVENPORT, J.

text:
    JIM HENNESSEE v. STATE.
    No. A-8915.
    Jan. 17, 1936.
    Rehearing Denied Feb. 7, 1936.
    (54 Pac. [2d] 217.)
    John P. Thomas and John W. Tyree, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jesse L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant in this opinion, was by information charged with mnrder, tried and convicted of manslaughter in the first degree, and sentenced to serve a term of ten years in the state penitentiary.

The testimony on behalf of the state in substance is as follows: Trotter Mitchell stated:

“I live at 1111 G. street, Lawton, Okla., in the same house with the deceased and her former husband.”

Some 2 or 3 weeks before the fatal shooting the defendant had stated, in referring to Fae Hennessee, his former wife:

“I would rather kill her now. She is the only human I ever saw I could ring her neck and throw her in the alley and feel good over it.”

He knew of the defendant beating the deceased, pulling her out of bed by her hair, and making threats against her life, 2 or 3 weeks before the death of the deceased; that a week or more before the killing the deceased moved into a tent in what is known as Lawton View addition in the city of Lawton. Deceased had five children, and one was a little baby.

W. K. McKenzie, who was a justice of the peace in Lawton, testified that during April a complaint was filed by the deceased requesting that Jim Hennessee be placed under a peace bond; that the hearing was continued, and the matter was pending at the time the complainant was killed.

Mrs. Crawford Hawkins testified:

“I am a resident of Lawton View addition, near the Pair Filling Station, in Lawton, adjoining the lot where the deceased lived in a tent at the time she was killed; the deceased had been ill during the day and night prior to her being killed; I was over to see her and took her some milk. Two or three days before the killing, the defendant came to my place and looked around, and inquired of me where Fae was (using profanity) and stated among, other things: ‘Well, if they don’t- put her in jail, I am going to kill her.’
“This statement was made by the defendant a few nights before she was killed. I visited back and forth from the tent the deceased was living in to* my house and carried some aspirin to the deceased, as she was at that time ill. I saw Howard Reynolds at the tent. I saw only a part of the fight between Howard Reynolds and the defendant, Jim Hennessee. When I went in the tent, Howard Reynolds had Jim Hennessee down on the bed in a scuffling or fighting position; Hennessee asked Reynolds if he was going to kill him, and Reynolds replied, ‘No, all I ask you to do is to let me get away from here.’ The deceased, Fae Hennessee, ran out of the¡ tent in her night clothes, and I went in the tent and brought her dress out to her. After the fight, Mrs. Hennessee left with Howard and Hughie Reynolds, and the defendant left with Tar Hennessee and one Tate. The deceased begged to be taken to Bill Davis’ place, stating that, if the defendant came back to the tent, he would kill her. The deceased went some distance away and then came back to* my house; then left again on her way to the Davis place. After the deceased left a second time, Helen Hennessee and I heard some shots up by Pullens’.”

The state introduced testimony showing the defendant overtook the deceased, Fae Hennessee, Howard and Hughie Reynolds on a hill where the engine of the car in which they were traveling had gone dead. Howard Reynolds was out trying to crank the car. The defendant shot Howard Reynolds three times. Fae Hennessee got out of the car and started running up the road, and the defendant took after her and shot and killed her. The evidence shows all of the parties were drinking. When the officers arrived at the scene of the killing, it was shown the automobile was facing west, that Howard Reynolds’s body was west of the car 15 or 20 feet, and Fae Hennessee’s body was east of the car about 30 or 40 feet. The body of Reynolds was lying on its back, and Fae Hennessee’s body was on her knees and elbows, with her head on the ground between her elbows.

Witness W. P. Ford, the undersheriff, testified he examined the body of Fae Hennessee at the undertaking parlor, and there was a bullet wound on the left side of her neck; the bullet did not come out of her body.

It was further shoAvn that earlier in the evening Jim Hennessee had phoned the officers and they drove out to Avhere he had reported he had a fight Avith the Reynolds boys. Hennessee had some knots on his head and his face was banged up, and one eye practically shut from sAvell-ing.

Chas. F. McCarty, sheriff of Comanche county, corroborated the testimony of the witness Ford with regard to the position of the bodies; and also stated when he found the bodies they were dead. Hughie Reynolds was in the car and had a bloody spot on his left eye, which he thought was a shot.

“1 shook him and tried to get him to talk; took him out of the car and put him in an ambulance and sent him to the hospital.”

The state offered testimony to show that a divorce had been granted Fae Hennessee on November 24, 1928; Helen Hennessee, the 14 year old daughter of the deceased, and a daughter of a cousin of this defendant by a former marriage, testified the defendant had made threats against the deceased, and stated he ought to kill her, that she was one woman he could kill and never lose any sleep over it; what he ought to do was to take something over there and kill her and take the children away with him. She also testified the defendant brought whisky to this tent for her mother to sell, and likewise cursed her mother because she did not get enough out of it. Witness further stated that the defendant’s statement to the effect that Howard or Hughie Reynolds made advances toward her were not true; that they never a.t any time approached her.

The witness Helen Hennessee further stated she did not know Mr. Clark, who testified in the case, and that he did not come to the tent the day before the killing; that she never saw him until yesterday; she knew Bob Johns; he came out to' the tent the day before the killing, just before noon or about noon; she was there all the time Johns was there- that Howard Reynolds and her mother were not in bed together at that time, nor were they in bed together any time during the day. Howard Reynolds did not have his clothes off at any time. “I did not know what Bob Johns came there for. He remained about thirty minutes; he did not make his business known, and did not ask for Jim Hennessee.”

The following statement made by the defendant, Jim Hennessee, to the county attorney, was introduced in evidence. It was signed by the defendant and witnessed by D. Monerief, Jr., and Dwight Malcolm:

“I, Jim Hennessee, desire to state that the County Attorney warned me that if I made any statement concerning the death of my wife Fay Hennessee and Howard Reynolds that such statement would be used against me; that. I did not have to make any statement, but if I did make any statement that he wanted me to tell nothing but the truth and with that understanding I am making the foregoing statement of my own free will and accord.
“Since about three weeks ago I have not been living with my wife and on yesterday the 12th day of April, 1934, I was told by Bob Johns that my baby boy was sick at the tent in which my wife was living and located one block south and one-half block west of Pair’s filling station. This was about 4 or 5 o’clock in the afternoon and in a few minutes I went to the tent with Elmer Tate and Tar Hennessee and we went in Elmer’s car. As I stepped in the tent I saw someone laying on the bed and; it was kind of dark and I thought it was my wife and the sick baby and then I noticed Howard Reynolds rolled off my wife and he was dressed in his underware. I picked up a chair and started fighting Howard and he knocked me down several times and; I was about knocked out and he put on his clothes and said he was going to leave and then Hughie Reynolds came in the tent and hit me several times and then Howard struck me with some heavy object and I was about out and laying on the bed, they went out of the tent and I heard them cussing Tar, who was outside the tent, and I went outside and they cussed me and Tar. Elmer and myself got in the car and left. On last Tuesday or Wednesday some of the boys told me that Hughie Reynolds was out to the tent and that he had pinched my little 14 year old girl on the breast and I got to thinking about all these things and I decided to call the sheriff and we went to Pair’s filling station and I called the sheriff’s office and Joe Bailey and Bill Ford came out in a few minutes and at that time it was between 6 and 7 o’clock in the evening and the officers went on out to the tent and went to the home of the county attorney and he was not at home and while we were parked in front of his house the two officers Ford and Bailey came up and they told me that they would pick the Reynolds up and that I could file a complaint in the morning. Then the three of us, Elmer Tate, Tar Hennessee and myself went back to Tar’s restaurant which is located on 3rd street and I knew where they kept their gun and I went back behind the counter like I was going to get a drink and got the gun which was a 38 automatic pistol from behind the counter and slipped it in my pocket. No one saw me get the gun and I did not ask if I conld have it for the reason that it belonged to Mrs. Hennessee and I knew that she wonld not let me have it. I then left the cafe and walked np F street to the Frisco depot. I did not want anyone to see me because my face was all bloody and from the depot I went up 5th street and went down through the park and out Summit st. to 11th st. and some niggers came along and I asked for a ride and I got on the right hand running board of the car and rode with them to South Boundary and they turned west several blocks and where they turned south and I got off. I did not notice any car parked in the road as we went down the road but the lights were poor and my eyes were filled with blood and it might of been there and I did not notice it. I did not know the niggers I rode with but a man was driving and there was three or four children in the car and maybe a woman. I believe these niggers live in Lawton View addition. When I got off the car I started walking back east and it was pretty dark and suddenly I noticed a car parked without any lights just a few feet away, about that time I notice two persons standing by the car1 and about that time I heard Howard Reynold’s voice and he said ‘Here’s the son of a bitch,’ and started toward me and I started running and shooting and did not know whether I hit anyone or not. I ran on back down the road east and cut across the vacant block just west of Pair’s filling station and when down 11th St. to Summit St. and cut down through the park and walked down 5th St., to the depot and went down F. St. to the cafe and went in and put the gun back behind the counter and went to the kitchen and washed my face and in a few minutes Joe Bailey came down and placed me under arrest.
“I did not know my wife was with the Reynolds when the shooting occurred and I believed that the two people standing by the car was Howard and Hughie Reynolds. I did not know there was a third person with them.
“I had not been drinking at the time these things happened and I did not know whether or not the Reynolds boys were drinking.
“From the time I left tbe cafe until I got back after the shooting I did not see anyone I knew except Howard Reynolds.
“This statement is made by me before D. Moncrief, Jr., and Dwight Malcolm.”

The defendant, testifying in his own behalf, stated:

“I am 58 years of age; have lived in Comanche county about 30 years. I knew a divorce had been granted my wife in 1928. We were only separated at that time about 10 days. We went back together and have been living as man and wife ever since up until a short while before the trouble. We have five children living, one a boy about 18 months old. I did not make any threats against my wife or threaten to kill her, nor did I tell any one I would like to do my wife any bodily harm. The case that my wife started against me was never prosecuted, as she died before it was brought to trial.
“I went to the tent the afternoon before the killing; Mr. Johns had told me my baby was sick. Elmer Tate and Tar Hennessee went with me. I went in the tent; my wife Avas on the bed; she raised her head up and I said, ‘How is the baby/ and she said ‘All right.’ I walked over toward the bed and Howard put up his hands and asked what I was going to do about it; that is about all I knew for a Avhile. Howard and I had a fight, and Hughie Reynolds came in and struck me; Howard was fighting me when Hughie struck me. Mrs. Hennessee got out of the tent. The instrument introduced in evidence does not belong to me. When I left the tent I was bruised and beaten. I saw Slim Hawkins there. He came in behind Hughie, had his knife out, and said put it on Hughie, but I did not know he had his knife out — I could hear what he said. When I got into Tar’s car to drive away from the tent, Hughie began to abuse me again; he called me every kind of a name in the world; I don’t know what he did not say.
“I went to Pair’s Filling Station, and called the sheriff to get them to- come out and arrest the Reynolds boys. We went down to the county attorney’s office, but he was not at borne. I went back to tbe tent then to get my bat wbicb I bad left on tbe table. There was nobody at tbe tent at tbe time I got my bat. When I failed to find the county attorney, I then went down to Third street to the restaurant. It was getting close to night at this time. I did not think tbe sheriff bad been able to arrest the Reynolds boys. When I went back to tbe restaurant, I went behind the counter and got a gun that belonged to Tar Hennessee’s wife. I figured bow tbe Reynolds boys might be back there. I went up by tbe Frisco depot and on through the park on foot. It was dark. When I got to tbe edge of Summit street, there was a car came down Summit and I asked them to let me ride, and they slowed down and I got on tbe running board and tbe driver asked me wbicb way I was going. They were colored people, and I did not know their names, but I think they live in Lawton View addition. I told them I was going out to old lady Sasser’s filling station. When they turned off, I told them I would walk and I got off the car. I stopped in tbe road a little bit and came back down tbe road. I was in tbe highway that runs west from tbe southwest comer of town. My eyes were swollen and my eyesight was poor. My intention was to walk back to the first street that turns south from tbe block and come on a dark street down there because I did not want to come down tbe main road. Before I came to tbe place to turn off, I ran into this car stopped. I was walking pretty fast, and some one said, ‘There is the God damn son of a bitch.’ I looked as best I could; I knew bis voice, and went to' shooting; be was not very far from me and was moving toward me. I started on east and met another object and I shot one time at that. I did not know who it was. I thought it was Hugbie Reynolds. It was dark out there. From tbe condition of my eyesight I could not tell a man from a woman. I came back to tbe restaurant. I aimed to wash my face and then go up to tbe police station. I did not get to tbe police station, as tbe officers came and arrested me at the restaurant.”

Several witnesses were called by tbe defendant to show tbe dangerous character of Howard Reynolds, and some were called to' show the life the defendant and his wife had been leading in the community there where they were living. It was admitted by all parties they had been selling intoxicating liquors.

The defendant was the only witness to testify that was at the scene of the killing; he admits the shooting, but claims he knew Howard Reynolds’ voice but did not know the other party he shot at, but thought it was Hughie Reynolds.

In his assignment of errors the defendant sets forth nine grounds which he alleges to be sufficient to warrant this court in reversing the judgment of the trial court. The first assignment argued by the defendant is that the court committed error in admitting incompetent and prejudicial testimony of the witness W. H. McKenzie, the testimony of W. H. McKenzie being to the effect that there had been filed in his court by Fae Hennessee, during, the month of April, prior to the homicide, a complaint charging the defendant with misconduct; the said Fae Hennes-see stating she was afraid her life would be taken by the defendant.

The defendant urges that the testimony of McKenzie was incompetent and prejudiced his rights before the jury. With this contention wel cannot agree, for the reason that the defendant, while on the witness stand, admitted the case was pending against him and it had not been disposed of at! the time Fae Hennessee was killed.

We hold that all the facts and circumstances prior to and leading up to the fatal difficulty which resulted in the death of Fae Hennessee were admissible to show the feeling of the defendant against the deceased and to show the deceased feared and apprehended he would do her great bodily harm, if not take her life.

In Tallon v. State, 22 Okla. Cr. 89, 210 Pac. 309, in the first paragraph of the syllabus, this court said:

“Evidence of the actions, conduct, and general demeanor of defendant a short time prior to the commission of the homicide is competent as tending to show the state of mind of defendant) at the time of the killing.”

It is next urged by the defendant that the court erred in refusing to give his special requested instruction on the question of the right of the defendant to' fire the shots that caused the death of Fae Hennessee. The testimony of the defendant shows he did not know who the last party was he shot. The requested special instruction has been carefully studied with the general instructions given by the court. The general instructions substantially covered the law applicable to the facts, and the court did not err in refusing to' give the special instruction requested by the defendant.

It is next urged by the defendant that the county attorney in his cross-examination of the defendant was guilty of misconduct, for the reasons that the question of the county attorney in effect charged the defendant of not caring for his children and not going to the funeral of one of them. The court has examined the record and read the questions propounded by the county attorney to the defendant, of which the defendant complains, and it discloses that the county attorney was examining the defendant as to' his failing to provide for his family, and attempted to have him contradict his statements as to his intentions testified to by other witnesses, of his going to get the deceased out of the way and taking his children and caring for them.

And, further, it tended to show by the defendant himself that he had not been providing for, or taking proper care of, his children. The cross-examination was proper, and the court did not err in permitting the questions.

The testimony in this case shows a most deplorable tragedy, one that cannot be condoned, and without any mitigating circumstances. It shows a wife with a number of children, living in a tent, one a small child of 18 months, the father living in the same city, and, if the testimony of his 14 year old daughter is to be believed, and it is not contradicted, was compelling his wife to sell whisky and quarreling and abusing her for not getting more for the whisky than she claimed to have received. And the wife, according to the testimony of the defendant, was living an immoral life. The other witnesses who testified for the state did not condemn the deceased, Fae Hennessee, as an immoral character. The defendant and. deceased had been divorced for many years but evidently ignored the decree of divorce and had continued to live together. It is clearly shown by the testimony that the defendant on numerous occasions had threatened to take the life of the deceased. These threats and statements of the witnesses are denied by the defendant.

The record discloses that, after the fight with Howard and Hughie Reynolds at the tent where the wife was living, the defendant called the officers and stated the trouble to' them, and wanted the officers to arrest the Reynolds boys; that the Reynolds boys had not been arrested. The defendant’s testimony shows that afer leaving the tent he went back to the tent and got his hat, and then went to the restaurant operated by Tar Hennessee, a relation of his, and went behind the counter and placed in his pocket a pistol that belonged to' Tar Hennessee’s wife and left again. According to his own testimony, he went toward the place where his wife was living. He said he took the pistol to protect himself, as he thought the Reynolds boys might be in the neighborhood where he was going. It is shown that after he had the fight with the Reynolds boys he went to the restaurant and armed himself with the pistol and went back out in the neighborhood where he had the difficulty with them for the purpose of seeing whether or not they were there with Fae Hennessee, and, if so, he intended to use the gun for the purpose of killing any of the parties he might find with his wife, and his wife. His version of the killing of Howard Reynolds and then shooting the other party will not stand an analytical test for truth; he says when he saw the- car stopped in the road and heard Howard’s remark, in which he called him a vile name, and started toward him, that he whipped out the gun and fired and started running, and as he passed by the car and was going up the street he met another object that he thought was Hughie Reynolds, and he shot him; this was the shot that took the life of Fae Hen-nessee. Hughie Reynolds was found in the car by the officers ; he could not be aroused, and, as one of the officers stated he had a wound that he thought was a shot, he was rushed to- the hospital.

It is perfectly apparent the defendant started out looking for and seeking trouble with the Reynolds boys and his wife; he had no business back in the neighborhood where his wife lived except for the purpose of bringing on another difficulty; he showed by the circuitous route he traveled his desire to avoid being seen; in fact stated he did not want to be seen.

This record has been carefully read and studied, and the court finds the defendant was/ accorded a fair and impartial trial; that the instructions of the court substantially and correctly advised the jury as to the law applicable to! the facts.. There are no errors in the record warranting a reversal. The jury by its verdict it returned Avas very lenient with the defendant. The testimony in this case is sufficient to warrant the jury in returning a verdict against the defendant of murder.

The judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


author: HOYLE, J.

text:
    CLIFFORD HARE v. STATE.
    No. A-8964.
    Feb. 7, 1936.
    (54 Pac. [2d] 670.)

      Coffey, Seaton & Coffey, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. (Eldon J. Hick, of counsel), for the State.
   HOYLE, J.

In the information in this case, filed in the district court of Tulsa county, Clifford Hare was charged with the crime of murder, alleged to have been committed in said county on or about the 12th day of November, 1934, upon the body of William Mushrush, by shooting him with a rifle. Upon his trial the jury returned their verdict finding the defendant guilty of manslaughter in the first degree, and assessed his punishment at imprisonment for a term of fifteen years. February 8, 1935, the court pronounced judgment and sentenced the defendant to imprisonment in the state reformatory at Granite for a term of fifteen years. From this judgment, he appeals.

The defendant admitted the killing, but contended that the homicide was justifiable in self-defense, or, more definitely stated, in defense of his mother and himself.

The theory of the state is that it was a deliberate wanton murder. There is very little conflict in the testimony of the witnesses for the state and those of the defendant; the undisputed facts are as follows:

The defendant, a young man twenty years of age, was at the time living with his mother, brother, and a sister on a farm adjoining the public highway, between the towns of Sperry and .Skiatook, as tenant farmers. The defendant and his brother visited their father, living in Helaware county, returning on the night of November 3', 1934; they bad a car collision on tbe Grand River Bridge, near Salina, and tbe defendant received severe injuries, including a broken arm, lacerations on bis legs, and was rendered unconscious. Removed to tbe Momingside Hospital in Tulsa, be regained consciousness tbe following morning. On November lltb, he left the hospital, returning to bis home. On tbe afternoon of tbe following day, while in bed, be was called by bis sister, saying that some people were picking pecans on tbe place. His mother bad gone to tbe orchard, and be took a 22 rifle and followed her.

Tbe state called Mrs. Musbrush, widow, and Mrs. J. M. Musbrush, mother of tbe deceased, Newton S. Hughes, and Frances Cremin, and their testimony was to tbe effect that on tbe afternoon of November 12th, Armistice Hay, tbe deceased with bis wife and children, bis mother, and Miss Frances Cremin, were on a pleasure drive looking for persimmons.

Tbe Musbrush family and Newton S. Hughes bad been friends for a number of years. Mr. Hughes! was employed as a pumper on an oil lease on and near tbe same land occupied by the defendant and bis mother. Passing a private road leading from tbe main highway to Mr. Hughes’ home, about a quarter of a mile from tbe road, they decided to drive into Mr. Hughes’ bouse and ask him where they could find some persimmons. While on this private road, tbe children, seeing pecans nearby, asked their father to stop and let them gather some. He stopped tbe car and they all got out, and were picking pecans. Tbe defendant’s mother, seeing them in the pecan grove, ran toward where they were; they, seeing her coming, returned to tbe car and drove on to tbe Hughes home, sounded tbe born, then drove around tbe bouse and started back towards the main highway. The defendant’s mother was standing in the road waving a club; the deceased, unable to drive by her, drove to the side of the road to avoid hitting her and stopped. She then threw her club at the car, but missed it. The testimony tends to show that she was much agitated and very abusive in her language.

The deceased suggested to his family, perhaps he had better get out and talk to her, which he did. She picked up another club or stick and attempted to strike him with it; he held her hands and tried to reason with her; he then released her hands and started to his automobile, and as he was about to enter it a shot was fired by the defendant from a point 75 yards away, which struck him in the hip, mortally wounding, him. The defendant then came to the car and made threats to shoot and kill. His mother finally prevailed upon him to permit the deceased and his family to drive on away. The defendant saying, “Get to hell out of here and stay out.” The deceased drove his car to Tulsa and was taken to the hospital, where he died a few days later.

Newton S. Hughesl testified that he lived on the lease near the property upon which the Hare family have an agricultural lease; that he built a private road going directly west from the paved highway to his house; that he was working at a well and saw Mr. Mushrush drive the car to his house and then “blow the horn a couple of times,” and saw the car turn back toward the main highway; meeting Mrs. Hare Fowler in the road, the car stopped. Saw Mr. Mushrush get out of the car and appeared to be talking to Mrs. FoAvler; that he saw something in her hand and saw some commotion going on. Next he saw the deceased holding her hands. Then he saw the defendant going through the brush with a gun, saw him fire tbe gun; that at the time Mr. Mushrush was shot he had one foot on the running board, getting into the car, and Mrs. Fowler was seven or eight feet from Mr. Mush-rush, at the time he was shot; that he saw the defendant go up to the! ear after Mr. Mushrush had started to drive away and he stopped the car, but he was too far away to' hear the conversation which took place.

Flay McDonald, deputy sheriff, testified that he had a conversation with the defendant in the sheriff’s office after he was arrested, as follows :

“I asked him if he intended to shoot that man and he said: ‘What the hell do¡ you think I shot for if I didn’t intend to hit him.’ I said: ‘You surely did not intend to kill a man for picking up pecans did you?’ He said, ‘Well, the sons of bitches have got to be weaned sooner or later, and if you have to' have a killing, it might as well come now as later.’ ”

Dr. Fred A. G-lass testified that he was a surgeon, and as such attended William Mushrush; that he died from the effects of a bullet wound in the left hip, which punctured the intestines and lodged in the bladder.

On the part of the defendant, Mrs. Bessie Fowler, mother of the defendant, testified, that when the deceased and his family got in their car and started in the direction of the Hughes home, she followed them, thinking they were going back in to the pecan orchard as others had done, and that she followed, going in the middle of the road; that the deceased, in front of Mr. Hughes’ house, sounded his horn once, then drove around behind the house, stopped, and sounded his horn again, but did not wait for a response and came on up the road towards her, and that when she saw him coming she picked up a little club and tried to wave him down; that he stepped on the gas and rushed towards her as if to run oyer her, and when within a short distance she stepped out of the road to the south side and threw a stick at the headlights; that he jumped out and came around the car cursing her, and after an exchange of words he got back in the car. She informed him that she was going to get his license tag number to see what could be done about people trespassing and stealing pecans, and he got out of the car again and started striking her, hitting her three times about the face and arms; that after he struck her the third time, she staggered four or five steps back to the north side of the road across from him, and he took two or three steps toward the car; then she heard a shot and the deceased was getting in the 'car; that one of the women said to her: “Now you have hurt him who is going to pay the doctor bill?” And she said: “Well, it is a cinch you will have to because I won’t.”

Joseph1 P. Cain testified that he lived across the road a quarter of a mile from where the defendant lives; that he saw a group of people picking up pecans by the side of the road that goes up to Mr. Hughes’ house, and Mrs. Fowler was going down toward them; saw them get in the car and drive up towards the Hughes’ house; saw Mrs. Fowler go up the road after them, and saw Mrs. Fowler step to one side when; they were driving back; saw a man get out when the car stopped and go back and talk with Mrs. Fowler, and then come back and get into the car, and then get out again and go back, and he saw him hit Mrs. Fowler as much as three times.

Two or three witnesses were asked if they knew the general reputation of the defendant in the community as to being a quiet, peaceable, law-abiding citizen, or otherwise, answered that they did, asked, “Is it good or bad,” replied, “Good.”

Two or three witnesses asked if they knew the general reputation of William Mushrush in the community in which he lived for being quarrelsome and turbulent or otherwise, answered they did, and that he had the reputation of being quarrelsome and turbulent.

The defendant, as a witness in his own behalf, testified that when he stepped out of the door he saw the people getting in the car and he followed his mother, saw his mother following the car; that when he got to the tree where he was standing when he fired the shot he looked up and saw Mushrush strike his mother three times ; that Mushrush looked up and saw him and started toward his car and he shot him because he was afraid if he would get to^ the car he would have a gun or some kind of dangerous weapon and would hurt or kill his mother.

On cross-examination he stated that he did not remember what he said in the conversations had with the officers in the sheriff’s office.

In rebuttal, the state introduced a statement made by the defendant following his arrest as follows:

“Well, I was laying there in bed and my sister 14 went out after a bucket of water and she seen these boys picking up pecans and she called mother outside and she hollered to' me to get the gun and come on out there. I got up and slipped on my shoes and got the rifle and started out there just as fast as I could go: Before I got there they got in the car and drove up toward Hughes and mother went over by the road and tried to talk to them. They drove up to Hughes and stopped and honked and drove around in back and honked. When they saw her coming! up the road they speeded up like they were going to hit her, she picked up a stick and throwed it but didn’t hit them. They stopped and a man got out and cussed her. He called her a damned son of a bitch and told her to go on bach and tend to her business. Then he got back in the car and she tried to bawl him out and he shook his fist in her face. She said, I will get their license number and see what can be done about it. When she said that he got out and hit her four or five. I was fifty yards with the rifle when he saw me coming. At least I suppose he did. He didn’t pay any attention to me and when he hit my mother I tried to level down with my left eye and couldn’t and then he began to beg me after I moved over and shot him and wanted me to get him to a doctor. Said he was shot and shot bad. I came on up to the car as quick as I could and Mom got on the car and said she would go in there and see how bad he was hit. He started up and I stopped him and told him, Hell no, He wasn’t going to' take my mother in town. Then he began to holler for a doctor, said he was shot and shot bad. I told him to get the hell off and stay off. Before I shot him he was hollering and whooping and raising hell. He slapped my mother. I don’t know whether he hit her or slapped her. He was starting back to the car when I shot him.”

Numerous witnesses were called and testified to the good character of William Mushrush, the deceased, as. to being a peacable and law-abiding citizen.

Several assignments of error relate to' rulings of the court in the admission of alleged incompetent and prejudicial evidence on the part of the state.

A careful examination of the record leads to the conclusion that these alleged errors are without substantial merit. It also appears that no objections were made to the admission of the alleged incompetent evidence.

Error is assigned on the ground that the instructions given by the court do not state the law applicable to the case, in that the court failed to' instruct the jury relative to the defendant’s right to protect his and his mother’s property against unlawful invasion upon such premises by trespassers.

This contention on tbe part of tbe defendant is not supported by tbe evidence, tbe undisputed facts show that at tbe time of tbe shooting tbe deceased was not a trespasser. It is true that prior thereto be and his family were trespassers, gathering pecans, and when they saw tbe mother of the defendant coming they quickly returned to their automobile, and, from tbe time they did so return until tbe shooting occurred, they were not trespassers. They were on a private road owned by tbe oil company, having a lease on said premises, and constructed as a means of ingress and egress to Mr. Hughes’ place from and to tbe public highway, and when the fatal shot was fired they were returning to the public highway.

As was said in Schmitt v. State, 57 Okla. Cr. 102, 47 Pac. (2d) 199:

“A person may resist a trespass on his property, real or personal, not amounting to a felony or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it and there is no felony attempted, he must suffer the trespass and the loss of property and seek redress at the hands of the law, rather than commit homicide.”

It is also contended that the court did not fully instruct upon the law applicable to the case.

It appears from the record that there was no request for instructions on the part of the defendant, and no exceptions were taken to> the instructions given by the court.

One of the grounds of the motion for new trial is “That the instructions given by the court to the jury do not state the law applicable to the case,” and it is urged here that the court’s instructions do- not fully state the law of justifiable homicide in self-defense and in defense of a parent.

In this connection the court gave the following instructions :

“No. 4. You are instructed that homicide is justifiable when committed by any person in resisting any attempt to murder such person, or to commit any felony upon him, or when committed in the lawful defense of such person, or of his parent, when there is a reasonable ground to apprehend a design to commit a felony or to> do some great personal injury, and imminent danger of such design being accomplished.
“No. 5. You are instructed that as one of his defenses the defendant claims that the hilling was justifiable on the ground of self-defense, and in defense of his mother.
“In this connection you are instructed that the law gives to every person the right to fight in his self defense or in defense of his parent, to protect himself or his parent from the unlawful attack of his adversary, and if necessary to save his life, or the life of his parent, or to prevent great bodily injury being done to him or his parent, he may take the life of his assailant or his parent’s assailant.
“No. 6. A person need not be in actual imminent peril of his life being taken, or a great personal injury being done to him; all that is required is that the defendant had reasonable ground to believe, and did believe, from the facts as' they reasonably appeared to' him at the time, that the danger was so< urgent or pressing, or apparently so urgent and pressing, that the defendant could not avoid the necessity of killing in safety to himself, to protect himself from death or great personal injury, and if under such circumstances the killing took place, it was justifiable.
“In determining the question as to whether or not the defendant was in danger or apparent danger, under these instructions, you are told that the law requires you to view the circumstances at the time from the defendant’s standpoint, as they reasonably appeared to him.
“No. 7. You are instructed that what act upon the part of the person slain would justify a person taking his life varies with the circumstances of each particular case. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, upon the ground of reasonable apprehension of danger. Under other circumstances this might not he true, and it is for the jury, viewing the facts and circumstances in evidence from the defendant’s standpoint, to determine how this may be in each case.
“No. 9. You are instructed that if you find from the evidence or entertain a reasonable doubt of the fact, that at the time the defendant fired the fatal shot the. deceased was making a demonstration which reasonably indicated to the defendant, viewed from his standpoint at the time, that the deceased was about to kill or inflict serious bodily injury upon the defendant, and the defendant at the time he fired the shot reasonably believed that he was in danger of losing his life or of receiving great bodily injury at the bands of the deceased, and if under those circumstances he fired the fatal shot, he would be justifiable, and your verdict should be not guilty.”
“No. 12. You are instructed that while the law permits a person to defend himself against real or apparent danger, such right is defensive and not offensive, and does not mean or imply the right of attack, nor will it permit of acts done in retaliation or for revenge.
“If you find and believe from the evidence, beyond a reasonable doubt, that the defendant’s mother, by her acts in causing the deceased to stop his car, was the aggressor and brought on the affray between her and the deceased, then and under those circumstances she would not have been entitled to claim that her acts were done in self-defense. The defendant had no greater right to defend his mother than she would have had to defend herself under the same circumstances. Therefore, if she was the aggress- or and brought on the difficulty between her and the deceased, then and under those circumstances the defendant did not have the right to shoot the deceased in defense of his mother, even though he may not have known how the affray started or who was responsible for it.
“In this connection you are further instructed that even if the defendant’s mother did provoke the difficulty, yet if thereafter she abandoned the difficulty, and made that fact known to the deceased, and thereafter the deceased attacked her, then in that event the deceased would be the aggressor and the mother would have the right to defend herself, and likewise the son would have the same right to defend his mother that she would have.”

The criticisms of the foregoing instructions are based on the theory that the defendant had a! right to intervene regardless as to whether or not his mother was the aggressor.

In the case of Moore v. State, 25 Okla. Cr. 151, 219 Pac. 175, this court held:

“The right of one to defend another is coextensive with the right of the other to defend himself, and one who intervenes in a difficulty between others must accept all the responsibilities and liabilities of the person for whom he intervenes.” Syl. 3.

And further held:

“If one fires a fatal shot in defense of his son, he is justifiable or not according as the son would be innocent or guilty had he fired the shot in his own defense.” Syl. 4.

It may be said that this rule may in exceptional cases Avork hardship; however, the opposite rule would allow an innocent man who had been forced to strike in self-defense to be killed with impunity merely because appearances happened to be against him at the moment a relative of his antagonist reached the scene of conflict. We deem it our duty to enforce rather than to relax the rule, which admits of no justification for taking human life except necessity.

It follows that the criticism of the instructions on the ground that they do no fully state the law of justification in self-defense and in defense of parent is without merit.

We have examined the other assignments of error and find none of them have sufficient merit to warrant any further discussion.

After a careful examination of the entire record, we fail to discover anything whereof the defendant has just right to complain. We think the evidence in the case was amply sufficient to' support a verdict for murder. Fortunately for the defendant, the jury in mercy or in a mistaken view of the facts, found him guilty of manslaughter in the first degree. This the jury had a right to do. The judgment of the tidal court is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.