text:
    ROBT. HENDRICK v. STATE.
    No. A-9263.
    Oct. 29. 1937.
    (73 P. 2d 184.)
    Crump & Carver and Hill & Hill, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Tom Huser, Go. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information with the crime of murder, was tried, convicted of manslaughter in the first degree, and his punishment assessed at a term of seven years in the penitentiary. From this judgment and sentence he has appealed to this court.

It is the contention of the defendant that the court erred in the giving of two instructions, Nos. 11 and 14, and that the court erred in failing to give two requested instructions. Instructions Nos. 11 and 14 are as follows:

“No. 11. If you believe from the evidence or have a reasonable doubt as to whether it reasonably appeared to the defendant, situated as he then was, and that he honestly believed that his father, or himself, was in imminent danger of losing his life or receiving great bodily injury and that he fired the shot to protect his father from the threatened danger, then the shooting would be a lawful one, and it would be your duty to acquit the defendant, unless you believe from the evidence beyond a reasonable doubt that they entered voluntarily into the difficulty, one of them armed with a deadly weapon at the time.”
“No. 14. In this connection you are told that self-defense, under the law, is a defensive and not an offensive act, and for a person to avail himself of a plea, of self-defense, in order to justify a killing, it must reasonably appear to him at the time of the killing that the act upon the part of the deceased, by which the defendant seeks to justify the killing, was such an act as made it reasonably to appear to him at the time that he, or some member of his family, was in danger of losing his, or their life, or of great personal injury being done him or them, and it is the duty of a person so threatened with danger to his life or of great personal injury being done him, or some member of his family, to use at the time all reasonable means apparent to a reasonable person under the circumstances to avoid such danger before the taking of human life, except that he is not bound to retreat to avoid such necessity, or apparent necessity of killing, provided he, or member of his family so threatened, has done no act upon his part to bring about the attack, or threatened attack, if any, by the deceased.”

The requested instructions were as follows:

“No. 1. You are instructed that the undisputed evidence shows that this controversy arose over the possession of 40 acres of land which the defendant’s father and the deceased had rented from William Coker, and that the defendant, Ed Hendrick, the father of Robert Hendrick, had the undisputed possession of the land during the year 1934 and up to about the 1st day of April, 1935, at which time the deceased claimed to- have rented said 40 acres of land from William Coker, and in this connection you are instructed that if you believe from the evidence or entertain any reasonable doubt thereof that Ed Hendrick, the father of this defendant, rented said 40 acres of land' for the year 1934 and did not surrender possession of the same to his landlord or any one else and had no written notice to vacate said land from his landlord and held over from the spring of 1934, that his possession was a peaceable one, and that Ed Hendrick and his son, Robert, defendant in this case, had a right to remain in possession of said land against the aggression of the said Walter Poole, and had the right to use all force that reasonably appeared necessary to them at the time of the homicide to protect said possession against the aggression of the deceased and to repel any attack made by the deceased by the use of force, providing that said force so used was reasonably necessary to protect the possession of said land and the person of the defendant or his father.
“No. 2. You are further instructed that if you believe from the evidence or entertain any reasonable doubt thereof that Ed Hendrick, the father of this defendant, had had possession of the 40 acres of land over which this controversy arose and that he was upon said land the day of the homicide, he was in a place where he had a right to be, and if you further believe from the evidence that Walter Poole and his wife voluntarily came on the place where the homicide occurred and that Walter Poole was armed with a deadly weapon, a claw hammer and a pair of wire cutters, and began to cut the wire, and with said hammer and gun approached the defendant and his father in a threatening manner and by the use of said gun and hammer led the defendant, Robert Hendrick, to believe that his father was in danger of death or great bodily harm, he fired the shot to prevent such danger, it will be your duty to find the defendant not guilty.”

Defendant, in his brief, discusses the two instructions given by the court together. He does not complain of the first part of instruction No. 11, but the closing sentence “unless you believe from the evidence beyond a reasonable doubt that they entered voluntarily into the difficulty, one of them armed with a deadly weapon at the time.” He claimed this was error in view of the facts and circumstances in this case; his contention being that this part of the charge deprived the defendant of his right of self-defense and was applying “the law of mutual combat” to the facts in this case. This charge should be analyzed in connection with all of the instructions given by the court and the evidence received. The evidence revealed that the defendant and his father, Ed Hendrick, were jointly charged with the murder of Walter Poole, alleged to have been committed in Seminole county, on the 16th day of April, 1935. Ed Hendrick was tried and acquitted, and defendant was tried and convicted. Defendant’s defense was that he shot the deceased, who- was at the time in conflict with his father, Ed Hendrick, and that the killing was in defense of his father, whom he thought was in danger of death or great bodily harm at the hands of the deceased.

The facts further reveal that Ed Hendrick, during the year 1934, had leased and used 40 acres of pasture land belonging to one William Coker. This land was used as pasture for the cattle of Ed Hendrick, and joined an 80-acre tract of which he was in possession. This 40-acre tract also joined land which was the property of the deceased, Walter Poole, who claimed to have rented the 40 acres from William Coker for the year 1935. A controversy and hard feelings had arisen between these parties over the possession of this land, and a few days before this difficulty occurred, deceased had driven the cattle of Ed Hendrick from these premises and the said Ed Hendrick had replevined said cattle from the deceased. Both parties had consulted attorneys in connection with their respective rights. On the morning of the difficulty, April 16, 1935, the father of defendant and a colored man took a wagon and went to the 40-acre tract where the deceased had made a gate. This gap was closed and wired up and a tree cut and allowed to fall across the same. This was done for the purpose of keeping deceased from taking possession of the cattle again. Ed Hendrick, when he left his home on this morning, carried with him, in his wagon, a loaded shotgun. The colored man who went with him was not present at the scene of the difficulty. The defendant, Eobert Hendrick, was not at home when his father left, but upon his arrival was informed where his father was and left immediately to meet him. Soon after his arrival the deceased and his wife came to the scene of the difficulty. He at the time having a double-barreled shotgun, a claw hammer, and a pair of pinchers. Immediately after his arrival a controversy was started and deceased cut several strands of Avire. Both parties had shotguns, and upon demonstrations being made, the Avife of deceased grabbed his gun and the defendant grabbed the gun of Ms father, Ed Hendrick. Up to tMs point there is very little, if any, conflict in the testimony. The evidence of the wife of the deceased was that he was killed by defendant while he was unarmed and in no way attempting to harm the defendant or his father. The evidence of the defendant and his father was that the deceased was attacking Ed Hendrick with a claw hammer, had struck him, and that he was on the ground at the time the defendant shot deceased.

Evidence of others who arrived soon after the difficulty supports the view of each of the parties. One disinterested party testified that the claw hammer was still in the pocket of the deceased after he was shot; another testifying it was found on the ground near the body of deceased; the evidence being highly conflicting as to who was the aggressor at the time of the fatal difficulty.

The jury, after hearing this conflicting evidence, seeing and observing the witnesses on the stand, and hearing the charge of the court, which when carefully read protected the rights of the defendant, found the defendant guilty. This being true, it is not for this court to' say that the verdict of the jury was contrary to the evidence. The argument of the defendant that the last part of instruction No. 11 took away from him the right of self-defense overlooks the fact that one killing in alleged defense of another cannot set up a defense not available to such other person. His father had gone to1 the scene of the difficulty armed and evidently expecting trouble. At the first appearance he had the gun in his hands and it was taken away from him by defendant. The court, under the law, properly instructed the jury that if they believed from the evidence or had a reasonable doubt as to whether it reasonably appeared to the defendant, situated as he then was, that he honestly believed that his father or himself was in imminent danger of losing his life, or of receiving great bodily injury, and that he fired the shot to protect his father from the danger, then the shooting would be a lawful one, and that it was their duty to acquit the defendant, unless they believed from the evidence beyond a reasonable doubt that he or his father entered voluntarily into the difficulty, one of them being- armed with a deadly weapon at the time. This court, in the case of Moore v. State, 25 Okla. Cr. 151, 219 Pac. 175, has passed upon this proposition in the following language:

“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. 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.”

This instruction, together with instruction No-. 14, above quoted, should be considered in connection with other instructions given by the court. In instruction No. 9, it is provided:

“A person who is unlawfully attacked, or some member of his family is unlawfully attacked, is not bound to retreat to avoid the necessity of injury to the assailant, or of killing him, when it reasonably appears necessary to save his own life, or the life of some member of his family, or to avoid serious bodily injury to himself or member of his family from the person killed. The killing under such circumstances will be self-defense and it is not necessary to the right of self-defense that the danger should in fact exist, and, if it reasonably. appears from the circumstances of the case that danger exists, the person threatened with such apparent danger, or member of his family, has the same right to defend against it, and to the same extent, that he would have were the danger real.”

Instruction No. 10 provides:

“When an attack has been made by one person upon another and the person making the attack is killed, in determining whether the killing is justifiable, the nature and purpose of the attack, the existence of or appearance of danger and extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all of the facts and circumstances in the case must be viewed and considered from the standpoint of the defendant, at the time of the killing, and from no other standpoint, and if, when viewed' from the standpoint it reasonably appears that the killing was necessary to prevent death or great bodily harm to the defendant, or member of his family, the killing will be justifiable.”

Instruction No. 13 provides:

“You are further instructed that if you believe the defendant, under all the facts and circumstances as they reasonably appeared to him, had reasonable grounds to believe and did believe that he, or some member of his family, was in great danger of losing his, or their life or of receiving great bodily injury from the deceased at the time of the homicide, then in that event you are told that he had a right under .the law to use such force as reasonably appeared to him under all the facts and circumstances to be necessary to repel such attack, and you are instructed that if, under such circumstances the killing took place, it would be justifiable.”

Instruction No. 20 provides:

“If you believe, or have a reasonable doubt thereof, that at the time of the fatal difficulty that the deceased, without any act upon the part of the defendant, or of his father, showing a purpose to do bodily harm to the deceased, did then and there by some act upon his part then done, make it reasonably to appear to the defendant, viewed from his standpoint, that it was then and there the purpose of the deceased to assault him, or his father, or to do him or his father some personal injury, then in that event the defendant had a right to shoot the deceased, in his self-defense, or the defense of his father, if it was then and there necessary, or apparently necessary, for him to do so in his or his father’s own proper self-defense; and, if he did so shoot and kill the deceased under these circumstances, then you are instructed that you should' find him not guilty, and, unless you find beyond a, reasonable doubt that the defendant unlawfully killed the deceased, you must return a verdict of not guilty.”

From a reading of these instructions, it will be seen that the court was very considerate in protecting the rights of the defendant. The argument presented by the able brief filed by attorneys for the defendant in this case presents an argument that the jury could have well considered ; but in view of the conflicting testimony it is not the province of this court to disturb the verdict when it has been adverse tO' the contention made by the defendant.

The two instructions complained of, when read in connection with the other instructions given by the court, and as applied to the facts in this case, fully protected the rights of the defendant. The rights of the defendant to act in defense of his father, if he as a reasonable person believed that his father was in danger of great bodily harm or death, were properly stated in several of the instructions above quoted. If his father had armed himself before going to the scene of the difficulty, and was ready and willing to enter into the conflict, as the evidence shows, then the defendant would be in m> better position than his father, in claiming the right of self-defense. This is what the court instructed the jury in the last part of instruction No. 11. Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Driggers v. United States, 1 Okla. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823; McDaniel et al. v. State, 8 Okla. Cr. 209, 127 Pac. 358.

Defendant, in Ms brief, contends that the facts in the case at bar are different from the facts in the case of McDaniel v. State, supra, in which case an instruction identical with No. 11 was approved by Judge Furman in that case. The defendant says:

“The evidence proves conclusively that defendant did not know that his father had a gun until he arrived at the scene of the homicide.”

This argument overlooks the well-established rule of law that one killing in alleged defense of another cannot set up a defense not available to such other person.

It is next urged by defendant that the court erred in failing to give the two' requested instructions above set out. These instructions are proper statements of law, but we do not think under the circumstances and the evidence in this case it was necessary for this issue to be presented to the jury in order that the rights of the defendant be protected. Under the evidence there was a conflict of opinion as to who had the right to the possession of this land. It is true the father of defendant had possession of the premises for the year 1934 but he had not leased the same for 1935. His lease expired January 1, 1935. It is true he had kept his cattle on the premises after the first of the year and was attempting to' hold over after his lease of 1934 had expired, and that no written notice had been given him to vacate the property. This was a matter that could, and should, have been settled in the civil courts of this state. Both parties, however, seemed to be determined to settle it by conflict of arms. This was the reason they armed themselves and went to the scene of the difficulty. Each thought himself entitled to the possession of the disputed land, and each regarded the other as a trespasser.

See Schmitt v. State, 57 Okla. Cr. 102, 47 P. 2d 199, and cases cited therein, for a full discussion of the principles here announced.

In Utterback v. Commonwealth, 105 Ky. 723, 49 S.W. 479, 482, 88 Am. St. Rep. 328, the court says:

“They could not settle this dispute by the arbitrament of arms. Life cannot be taken to prevent a trespass; and, on a trial for homicide, the guilt or innocence of the defendant does not depend upon whether he was right or wrong in the controversy about the land. Life, in cases like this, can only be taken in self-defense or in the necessary defense of others. * * *
“In 1 Bish. Cr. Law, § 857, 858, the law is thus stated: ‘The general doctrine is that while a man may use “all reasonable and necessary force to defend his real or personal estate, of which he is in the actual possession, against another who comes to dispossess him without right,” he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open, he must yield, and get himself righted by resort to law. But the general doctrine as to the defense of property is not applicable to the defense of what is termed the “castle.” In the early times our forefathers were compelled to protect themselves in their habitation, by converting them into holds of defense; and so the dwelling house was called1 a “castle.” And thence has grown up the familiar doctrine that, while a man keeps the doors of his house closed, no other has the right to break in under any circumstances, except in particular cases, where it becomes lawful for the purpose of making an arrest of the occupant, or the like, — cases which it is not within our present line of discussion to consider. Prom this doctrine is derived another, namely, that the person within the house may exercise all needful force to keep the aggressor out, even to the taking of life.’
“In the case at bar the difficulty occurred over a little strip of land remote from the dwelling house of either party, and neither could vindicate his rights as he conceived them to be by a breach of the peace, much less by the taking of human, life. The question is not to be determined here, for neither party had the right to resort to firearms, unless life was then and there in danger, or great bodily harm apprehended. The right of the parties to the land can only be tried in a civil suit between them. The evidence to their respective claims is only admissible in this case to put the jury in the situation of the parties, so that the jurors may better judge as to their motives, and determine, where the evidence is conflicting, more intelligently as to their actions.”

In Scott v. State, 43 Tex. Cr. R. 591, 68 S. W. 177, 179, the court says:

“Appellant further insists that the court erred in failing to instruct the jury in regard to appellant’s right to defend his property in connection with the court’s charge on manslaughter. We do not concur with the view that the homicide involved the protection of appellant’s property, under articles 677 and 680. True, the parties were having an altercation, which had been pending for some time, in regard to their lands and fences, and the difficulty appears to have grown out of this. On the morning of the homicide, it appears deceased and his companion were engaged in driving appellant’s stock off of the land in controversy between them, preparatory to' putting up a fence which deceased had previously erected and which had been torn down by appellant on the preceding night. As deceased drove the stock across the fence, appellant approached with a gun, an altercation ensued, and appellant shot deceased. Now, all this testimony involving the cause of the difficulty between the parties was before the jury, and the court gave a very full and clear charge on manslaughter. While he told the jury that the provocation must arise at the time of tbe commission of the offense, he charged that the jury could also look to all the facts and circumstances antedating that event, and if they found that adequate cause existed, and appellant’s passion was thereby engendered, and he slew deceased not in self-defense, that they could not convict him of a greater crime than manslaughter. The jury certainly understood this charge to embrace all that transpired between the parties, especially the driving out of appellant’s stock by deceased, and all that then transpired. We do not think it was incumbent on the court to do more than was done by the charge on the subject. We do' not understand it to be the rule that outside of the statutory causes it is incumbent on the court to embrace or recount the facts which may suggest adequate cause, but under the general charge, these matters which may constitute adequate cause are left to be determined by the jury.”

In Carpenter v. State, 62 Ark. 286, 36 S. W. 900, the court says:

“The right to defend property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, to the extent of slaying the aggressor, does not include the right to defend it, to the same extent, where there is no> intention to commit a felony. A man may use force to defend his real or personal property in his actual possession against one who endeavors to dispossess him without right, talcing care that the force used' does not exceed what reasonably appeal's to be necessary for the purpose of defense and prevention. But, in the absence of an attempt to' commit a felony, he cannot defend his property, except his habitation, to the extent of killing the aggressor, for the purpose of preventing a trespass, and if he should do so, he would be guilty of a felonious homicide. Life is too valuable to be sacrificed solely for the protection of property. Rather than slay the aggressor to' prevent a mere trespass, when no felony is attempted, he should yield, and appeal to the courts for redress. Ordinarily the killing allowed in tbe defense of property is solely for the prevention of a felony.”

“The law affords ample redress for trespass committed on a man’s land, but does not sanction the taking of life to prevent it. The owner may, no' doubt, oppose force with force to protect his property from injury or destruction, but not to the extent of taking life, or in excess of the necessity of the case. When he carries resistance to excess and uses more force than is- reasonably necessary, he becomes a wrongdoer.” Davison v. People, 90 Ill. 221.

In a note 25 A. L. R. 534 it is stated:

“To justify homicide in defense of property the possession must be actual, and not merely constructive, and every effort must be made by the possessor to repel the aggression before he is justified in the killing. Richardson v. State (1922) 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249.”

Wharton on Homicide, p. 786, § 528, says:

“A bare trespass against or upon the real property of another, not his dwelling, does not warrant the owner in using a deadly weapon in its defense, and. if he does, and kills the trespasser, it is murder, though the killing is actually necessary to prevent the trespass. Thus a homicide committed with a deadly weapon in order to prevent the removal of a line fence in dispute is murder in the absence of proof that would tend to rebut the presumption of malice arising from the use of such weapon. And: the guilt or innocence of the accused in such case is in no degree dependent upon the title to the land or fence in dispute, and the courts will not inquire into the title in such case. Nor can a killing with a deadly weapon be deemed manslaughter, consisting of the unnecessary killing of another in resisting an attempt by such other to commit an unlawful act, merely because it was done in resistance of a civil trespass upon land. And where two persons are entitled to the joint use and occupation of realty, and one of them kills the other in a dispute over such use, the question at issue with reference to the justification of the act is whether it was necessary to save his own life from such a serious assault as would create a reasonable apprehension that his life was in imminent peril, and whether the slayer did the killing to avert the threatened danger, and not whether it was done to protect his property. So, a person occupying land as a lessee, over which another has no right, is not justified in killing him to prevent him from traveling over it. * * *
“Nor does the mere act of the person killed of driving the slayer’s stock off the land in controversy between them involve the protection of the slayer’s property, or require an instruction to the jury in a prosecution for the killing in regard to- the slayer’s right to- defend his property, in connection with a charge on manslaughter.”

In the instant case the killing occurred over a little strip of land remote from the dwelling house of either of the parties, as in the Utterback Case, supra. The laws of this state gave to- the defendant and his father ample protection by the securing of an injunction against the deceased from interfering with them in the possession of the property if they had a valid lease for 1935. On the other hand, the law gave to- deceased the right to- file a forceable entry and detainer suit to- dispossess defendant and his father, and a speedy remedy could have been had in the court of some justice of the peace of Seminole county to determine the rights of possession; but these parties did not desire to follow the law; they took the law in their own hands. The results are that one of the parties was killed; another is to be deprived of his liberty. It was not a question of protecting one’s “habitation” or “dwelling” from an intruder, or “to keep the aggressor out even to the taking of life.” It was just hard-headed1 individuals who were willing to do or die. It is unfortunate under these circumstances that the son should be the one to suffer, but the issues were properly presented to the jury in the county which was the home of the defendant and his father. They passed upon this issue, finding against the defendant, and this court, seeing no error therein, should not set the verdict aside.

The judgment of the district court of Seminole county is therefore affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte SAM GEORGE.
    No. A-9413.
    Nov. 5, 1937.
    (73 P. 2d 471.)

      Joe Adwon and James L. Gowdy, for petitioner.
    Sam H. Lattimore, Asst. Atty. Gen., and E. W. Brown, Asst. Co. Atty., for respondent.
   DOYLE, J.

The petitioner avers that he is unlawfully restrained of his liberty by Stanley Rogers, sheriff of Oklahoma county, and Boone B. Arthur, extradition agent of the state of West Virginia; that the cause of1 said restraint is that petitioner was arrested and is detained under a charge of being a fugitive from justice. That on October 28, 1937, the Governor of the state of Oklahoma issued and delivered a warrant to the extradition agent of the state of West Virginia upon incomplete and insufficient application and that said papers show on their face that the alleged offense charged against petitioner is barred by the statute of limitations; that he is not a fugitive from justice from the state of West Virginia, and was not within the state of West Virginia during the period set forth in the indictment, and that his arrest and detention by said officers is therefore illegal and unauthorized; that application was made to the district court of Oklahoma county for a writ of habeas corpus on the same grounds as above set forth; that on a hearing had October 30th, the writ was denied and' petitioner remanded to the custody of respondent.

Under copies duly authenticated and accompanying the requisition papers, it appears that in the common pleas court of Cabell county, state of West Virginia, at the October, 1937, term of said court, an indictment was returned charging that on the 1st day of August, 1937, in the said county of Cabell, and within one year next prior to the finding of this indictment, the petitioner, Sam George, did unlawfully and willfully and without just cause desert and willfully neglect and refuse to provide for the support and maintenance of his infant children, Rosalie, aged 14 years, Julius, aged 12 years, Emil, aged 10 years, Louis, aged 8 years, and Raymond, aged 6 years, the said infant children being then and there in destitute and necessitous circumstances.

Attached also is the affidavit- of Mrs. Helen George, . the mother of said infant children, in part as follows:

“That sometime in October, 1935, the said Sam George abandoned this affiant and the aforesaid children andl absconded from the city of Huntington and the state of West Virginia and remained at whereabouts unknown to this affiant; that said abandonment was made at a time when this affiant and the said five infant children had no means of support whatsoever, and no property out of which to support themselves; that not until recently did this affiant learn of the whereabouts of the said Sam George, and that the said infant children, aforesaid, have been, since October, 1935, in destitute and necessitous circumstances and without any support whatsoever except the support furnished them by the Family Welfare Society and the Union Mission, both of Cabell county, West Virginia, and with what meager earnings that this affiant can make, and that said earnings are wholly insufficient to sustain said infant children.”

Also1 the affidavit of Louis Bokair, of Huntington, W. Va., to' the same facts; also the affidavit of Katherine Ranson, investigator for the Family Welfare Society of Cabell County, W. Va., and that as a result thereof it has been necessary for the Family Welfare Society of Cabell county to assist them financially to prevent utter starvation and to clothe them.

Also the affidavit of Mrs. Lucille Downey, superintendent of the Union Mission, of Huntington, W. Va., to the effect that much of the time since October, 1935, the said infant children have been housed and cared for.in the Union Mission as aforesaid, and that said children were and are in destitute and necessitous circumstances save for the assistance received from the Union Mission and other charitable organizations, meagerly supplemented by what earnings the mother, Mrs. Helen George, can supply.

It appears that the indictment was found upon the testimony of the aforesaid affidavits.

Petitioner testified that he had lived in Oklahoma City a little over a month, has a grocery store on Southeast Twenty-Ninth street, that he formerly lived in Huntington, W. Va., married Helen George there in 1922; had five children by her, ages 8 to 14; that he was in the confectionery business in Huntington for about 15 years; that in 1934 his business was taken over by his creditors; after that he peddled stuff around town to support his family; that October 17, 1935, he made arrangements to leave Huntington, and went to Detroit, Mich., told his wife that he was leaving and gave her $150 or $175 that his cousin sent him, stayed in Detroit about ten days, went from there to Kansas City and stayed there about, two weeks, and while there he sent his wife $10; that he went to Nevada and stayed there about -ten months and while there procured a divorce from his wife; that he was separated from his wife about six months before he left Huntington; that he had never been back to the state of West Virginia since he left there October 17, 1935; that his present wife left Huntington, W. Va., about a year before he left there.

It is contended on the part of the petitioner that it conclusively appears that he was not a fugitive from justice from the state of West Virginia either at the time the indictment was returned against him or on the date of the alleged crime, and could not have committed the alleged crime in that state at that time.

Counsel for petitioner cite and rely upon the following cases: Schein v. Gallivan, 321 Mo. 268, 10 S. W. 2d 521; Ex parte Kuhns, 36 Nev. 487, 137 Pac. 83, 50 L. R. A. (N. S.) 507, and Ex parte Heath, 87 Mont. 370, 287 Pac. 636.

In the Schein Case, the Supreme Court of Missouri held:

“Petitioner leaving demanding state, following settlement of alimony then due, held not to be a fugitive from justice, since there was no criminal liability on petitioner’s part at time he left such state, leaving no ground for presumption that he left with criminal intent, and in absence of such intent he cannot be held to be a fugitive from justice.”

In Ex parte Kuhns, supra, the Supreme Court of Nevada held:

“Where a husband and wife residing in Pennsylvania agreed to separate and he agreed to make monthly payments for her support and that of a child of the marriage, and he made the monthly payments for a time and prior to any default left the state, and while residing in a sister state failed to make the payments, he was not guilty of abandoning his wife in Pennsylvania, he was not a fugitive from justice from Pennsylvania, based on! his failure to maintain his wife and child, and he could pot be extradited at the request of the authorities of Pennsylvania.”

In Ex parte Heath, supra, it was held:

“Husband in state, though not county, wherein wife and minor child resided, after alleged day of desertion, held ‘fugitive from justice’ subject to extradition.”

In the opinion it is said:

“The case of Ex parte Roberson, supra [38 Nev. 326, 149 Pac. 182, L. R. A. 1915E, 691], is relied upon by petitioner as sustaining his contention that he is not a fugitive from justice. But that case differs from this in that the crime there charged was not a continuing offense, as here. The court in that case made special reference to that fact by saying: ‘The offense with which petitioner stands accused by the indictment found in Martin connty, North Carolina, is not a continuing offense, nor one which might be termed transitory or ambulatory in its nature.’
“The cases of People v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706; People ex rel. Merklen v. Enright, 217 App. Div. 514, 217 N. Y. S. 288, and Farrell v. Hawley, 78 Conn. 150, 61 A. 502, 70 L. R. A. 686, 112 Am. St. Rep. 98, 3 Ann. Cas. 874, are cited and relied upon by petitioner as sustaining his contention. But these cases are not in point here, for there, too, the crimes charged were not continuing offenses.
“In State ex rel. Blake v. Doeppe, 7 W. Va. 203, 124 S. E. 667, the crime charged was a continuing one. There was no evidence, however, tending to show that the accused was ever in the demanding state during the period covered by the complaint.
“The case of People ex. rel. Gottschalk v. Brown, 207 App. Div. 695, 201 N. Y. S. 862, cited by petitioner, supports his contention, but the decision was reversed in 237 N. Y. 483, 143 N. E. 653, 32 A. L. R. 1164, supra.
“We believe the decision in People v. Brown, 237 N. Y. 483, 143 N. E. 653, 32 A. L. R. 1164, is supported by sound reasoning, and on the authority of that case hold that petitioner is a fugitive from justice from the state of Kansas.”

In the first instance the responsibility of determining Avhether an accused person is a fugitive from the justice of a demanding state rests upon the executive of the state in which the accused is found. Ex parte Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. Ed. 250.

Independent proof, apart from the requisition papers that the accused is a fugitive, need not be demanded by the Governor of the surrendering state before issuing his warrant of arrest in extradition proceedings. Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann. Gas. 1047.

The executive of the asylum state performs his1 full duty when he determines that an extraditable offense has been regularly charged, and that the accused was within the jurisdiction of the demanding state when the offense charged was committed.

In determination by the executive of the surrendering state, that the sworn evidence accompanying the requisition is sufficient to establish the facts upon which the requisition is based is not conclusive. The issuance of the warrant constitutes, however, a prima facie showing which may be rebutted under a writ of “habeas corpus by admission or by other conclusive evidence.” Hyatt v. New York, 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed. 657.

It is upon the petitioner under such circumstances to prove that he is not in fact a fugitive from justice, and the burden requires evidence which is practically conclusive. Ex parte Montgomery (D. C.) 244 F. 967; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544.

To be a “fugitive from justice” within the meaning of the federal law it is sufficient that such person legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for said offense, has left its jurisdiction and is found within the jurisdiction of another state upon whose executive requisition is made. When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of the crime charged, it is then conclusively established that such' person is a fugitive from justice within the meaning of the Constitution. In re Gundy, 30 Okla. Cr. 390, 236 Pac. 440; Ex parte Baker, 33 Okla. Cr. 413, 244 Pac. 459; Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236.

It is well settled that a person may be a fugitive from justice within the meaning of the provisions of the federal Constitution and laws concerning extradition, though at the time he left the demanding state he had no belief that he had violated its criminal laws, and though he did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged. Appleyard v. Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1076; Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37.

It is also a well-settled doctrine that a person who departs from a jurisdiction, after having committed am act in furtherance of a crime subsequently consummated, is a fugitive from justice and subject to extradition. State v. Gerber, 111 Minn. 132, 126 N. W. 482; In re Cook (C.C.) 49 F. 833.

The Supreme Court of the United States, in the case of Strassheim v. Daily, 221 U. S. 280, 31 S. Ct. 558, 560, 55 L. Ed. 735, said:

“We think it plain that the criminal need not do within the state every act necessary to complete the crime. If he does there an overt act which is and is intended to be a material step toward accomplishing the crime, and then absents himself from the state and does the rest elsewhere, he becomes a fugitive from justice. * * * For all that is necessary to convert a criminal under the laws of a state into a fugitive from justice is that he should! have left the state after having incurred guilt there * * * and his overt act becomes- retrospectively guilty when the contemplated result ensues.”

We are not advised of the provisions of the West Virginia Code of Criminal Procedure or statute of limitations. We do not take judicial notice thereof, and the common-law rule prevails.

The rule stated in 22 Cyc. 313, is:

“Where the common law rule has not been altered by statute, it is necessary to charge the offense as having been committed on a day certain; but except where the time is of the essence of the offense itself, it is sufficient to lay it on any day previous to the finding of the indictment, and during the period within which the offense may be prosecuted.”

The charge in this case is that petitioner deserted his minor children on the 1st day of August, 1937, and prior thereto. The year given for the alleged offense in the copy of the indictment was evidently a clerical error and should, be 1936; however, this is not material, because under this allegation the state could prove the offense to have been committed at any time during the period covered by the statute of limitations, for the prosecution of the offense. 1 Bishop on Cr. Pro. 400; In re Quint, 54 N. D. 515, 209 N. W. 1006; State v. Gerber, supra.

The willful and unexcusable failure of a father to provide for the support of his minor children is a continuing- offense, which a father commits every day that he fails to provide for the support of his minor children.

It follows that the precise date named in the indictment is not material, for the state may prove the offense to have been committed at a time when petitioner was within that state.

The constitutional provision regarding extradition from one state to another was adopted to promote justice, to aid the states in enforcing their laws, and not to shield malefactors. The Supreme Court of the United States has emphatically announced its adherence, to the doctrine that a faithful and vigorous enforcement of the provisions relating to fugitives from justice is vital to- the harmony and welfare of the state, and that, while a state should take care that the rights of its people are protected against illegal action, both it and the judicial authorities' throughout the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted, as to enable offenders against the laws of a state to find a permanent asylum in the territory of another state. People ex rel. v. Enright, 112 Misc. 568, 184 N. Y. S. 248.

The action of the Governor in issuing his warrant should not be nullified by the courts, unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law. Ex parte Foster, supra.

Upon a careful examination and consideration of the record before us, we are clearly of the opinion that upon the undisputed facts petitioner is a fugitive from justice from the demanding state and his arrest and detention are not in any way illegal.

The writ is therefore discharged, and it is ordered that petitioner forthwith surrender himself to the sheriff of Oklahoma county to be delivered into the custody of the duly appointed agent of. the state of West Virginia for return to that state; that upon compliance with this order the bond given for his release pending this decision be exonerated.

DAVENPORT, P. J., and BAREFOOT, J.., concur.


author: BAREFOOT, J.

text:
    Ex parte CLAUDE WARRENBURG.
    No. A-9392.
    Nov. 5, 1937.
    (73 P. 2d 476.)

      Falkenberg & Ernest, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ellis W. Eddy, Co. Atty., for the State.
   BAREFOOT, J.

The defendant, Claude Warrenburg, is confined in the county jail of Grant county, and has filed a petition for release by habeas corpus.

The facts show that the defendant was charged by complaint filed in the justice of the peace court in Grant county on November 30, 1936, with the crime of burglary in the second degree, for breaking into a building in the town of Salt Fork, Grant county, for the purpose of stealing $35 worth of barber equipment. He waived preliminary and was bound over to the district court, and an information was filed against him in that court on December 8, 1936; same being case No. 940. While this information was on file, the county attorney of Grant county, on January 18, 1937, filed in the justice of the peace court of said county a complaint against the defendant, charging him with the identical crime with' which he stood charged by information filed December 8, 1936, in case No. 940, with the further allegation that the defendant had on two previous occasions been convicted and served sentences in the state penitentiary, one for grand larceny and one for conjoint robbery; this for the purpose of bringing the prosecution within the terms of tbe second offense statute. At tbe preliminary bearing on January 29,1937, tbe defendant presented a motion to. quasb tbe warrant and set aside tbe complaint for tbe reason that tbe prior prosecution was still pending in the district court, and tbe county attorney Avas without authority to file a new complaint Avhile tbe other prosecution was still pending. Tbe motion of defendant was overruled, and after preliminary examination be was bound over to tbe district court. Pursuant thereto’, an information was filed against him in tbe district court on April 12, 1937, being case No. 941. Tbe same motion which was filed in tbe justice of tbe peace court was filed in tbe district court. This motion was overruled, and defendant Avas arraigned and entered a plea of not guilty. At tbe term of court beginning the first Monday of January, 1937, no jury was called and no trial of defendant Avas had. This term of court ended June 30, 1937.

On July 29, 1937, defendant fled a motion in the original case No. 940 to dismiss tbe same on tbe grounds that a term of court had expired without a trial having been granted. This motion was presented to tbe court on the same day that it was filed and an order was entered dismissing said original action No. 940 on said date. On tbe same day, July 29, 1937, the defendant filed a motion to dismiss the second prosecution, being No. 941, on tbe grounds that the offense charged therein was tbe same as in tbe prior information filed in case No. 940; the only difference being that charges of former convictions Avere charged in the second information, and tbe defendant having not been tried on tbe original information in case No. 940 at the January, 1937, term of said! court, defendant was entitled to have both prosecutions dismissed or to be released from jail upon his own recognizance. This motion Avas overruled by the court.

Said defendant has now filed in this court his petition for a writ of habeas corpus upon the grounds stated in his motions to quash the warrant and complaint in the justice of the peace court and the information and warrant in the district court in the second prosecution. The petition alleges that the restraint by the sheriff of Grant county is illegal and void, for the reason that the secondi information does not state any new crime, but would act merely as an amendment made without leave of the court and while the original case was pending and undisposed of, and is prejudicial to the rights of the defendant and in violation of his constitutional and statutory rights.

The sections of the statutes necessary to be construed in considering this case are as follows: Chapter 17, article 18, section 2872, Okla. Stats. 1931 (title 22, section 812, p. 443, Oklahoma Statutes Annotated), which reads as follows :

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

Chapter 17, article 18, section 2875, Okla. Stats. 1931 (title 22, section 815, p. 448, Oklahoma Statutes Annotated), which reads as follows:

“The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.”

.Chapter 17, article 18, section 2876, Oklahoma Statutes 1931 (title 22, section 816, p. 449, Oklahoma Statutes Annotated), which reads as follows:

“The entry of a nolle prosequi is abolished, and the county attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.”

Chapter 17, article 18, section 2877, Oklahoma Statutes 1931 (title 22, section 817, p. 450, Oklahoma ¡Statutes Annotated), which reads as follows:

“An order for the dismissal of the action, as provided in this Article, is not a bar to any other prosecution for the same offense.”

These statutes are quoted for the reason that many of the states have statutes of similar import. Not all of them have the identical statutes, and especially section 2877, Okla. Stats. 1931 (title 22, section 817, p. 450, Oklahoma Statutes Annotated). The courts of the different states have construed those statutes, and the opinions are somewhat conflicting because of the wording in those providing for the discharge of the defendant, if not tried within a certain time. Some of the statutes provide for “a discharge from imprisonment,” others using the term “shall be discharged so far as related to the offense”; “shall be set at liberty”; “shall be forever discharged of the crime”; “shall be discharged and acquitted”; “shall be absolutely discharged”; “discharged on his undertaking” ; “order the prosecution to be dismissed.”

In the construction of their respective statutes, some states have held that a discharge for the want of a speedy trial is a bar to any further prosecution for the same offense. 56 L. R. A. 544, citing State v. Wear, 145 Mo. 162, 46 S. W. 1099; State v. Radoicich, 66 Minn. 294, 69 N. W. 25; Commonwealth v. McBride, 2 Brewst. (Pa.) 545; Ex parte McGehan, 22 Ohio St. 442.

In reading these decisions it will be noted that those states do not have a section the same or similar to section 2877 (section 817), supra, which provides:

“An order for the dismissal of the action, as.provided in this Article, is not a bar to any other prosecution for the same offense.”

The sections of the statutes above quoted were adopted from the statutes of the Dakotas, as were many of our statutes. These identical sections were a part of the Compiled Laws of Dakota 1887, §§ 7649 to 7655, and formed chapter 14, title 11. Section 7655 of the Dakota Statutes was identical with section 2877 (section 817), above quoted. These statutes have been carried down through the Oklahoma Statutes of 1890, 1903, 1910, 1921, and 1931. In 1910, the word “Chapter” was changed to “Article.” These sections, being a part of the same “Chapter” or “Article,” should in our opinion, according to all the rules of construction of statutes, be construed together. Certainly it was intended by the enactment of section 2877 (section 817) to refer to the sections in the same “chapter” or “article,” and that a dismissal of the action as provided in those sections should not be a bar to any other prosecutions for the same offense. By this provision it was intended that a dismissal under those sections should only pertain to the proceedings in that identical case, and not to a proceeding of the same offense under different proceedings. Many states have statutes not only similar but almost identical to our section 2877, and the courts of those states have with regular unanimity held in accordance with the above construction when the question has been before them for consideration. Among these states are the Dakotas, California, Idaho, Arizona, Oregon, Washington, Montana, Utah, and New York. In some of these states a dismissal is provided for after a delay of 60 days instead of referring to the next term. In several of them the section corresponding to section 2877 provides that such order of dismissal shall constitute a bar in misdemeanor but not in felony cases.

The California Supreme Court, in the case of In re Begerow, 136 Cal. 293, 68 Pac. 773, 774, 56 L. R. A. 528, has construed the statute of that state, which is very similar to ours. The opinion is a leading one, and states the law so forcibly and logically that we desire to quote therefrom. Begerow had been charged with murder and tried several times,.each trial resulting in a disagreement. More than the statutory time had elapsed since the last trial without further proceedings, motion was made to dismiss the prosecution. • The lower courts having denied this motion, the petitioner sued out a writ of habeas corpus in the appellate court and was released. He was immediately rearrested under a new charge for the same murder, whereupon he brought a second petition for habeas corpus. The court.said:

“By the former decision in this court two principles may be taken as having been declared: (1) That the right of habeas corpus is available to a prisoner restrained of his liberty upon a criminal charge in violation of subdivision 2 of section 1382 of the Penal Code above quoted. (2) That the right to a trial within 60 days after the finding of the indictment or filing of the information, as provided in that section, makes it the duty of the state to afford such defendant a trial within 60 days after mistrial, excepting for good cause shown. It was not, however, in that case decided that the effect of the discharge upon application to the trial court, as primarily contemplated by that section, nor that the effect of the discharge as a last resort upon application by habeas corpus to this court, was to create a bar to future prosecution for the same offense. Indeed, upon statutory authority such a contention is plainly untenable. In chapter 8 of the Penal Code, where it is declared the duty of the judge to dismiss if the defendant has not been brought to trial within 60 days, there is found the further provision, in section 1387, that ‘an order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony.’ While section 1496 of the same Code provides: ‘No person who has been discharged by the order of the court or judge upon habeas corpus can be again imprisoned, restrained, or kept in custody for the same cause, except in the following cases: (1) If he has been discharged from custody on a criminal charge, and is afterwards committed for the same offense, by legal order or process. (2) If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense.’ But, against the force of these provisions, it is argued that, if given the construction contended for by respondent, which would appear to be the only reasonable one which their language will bear, then, in and of themselves, they are violative of subdivision 13 of article 1 of the Constitution of this state, which guarantees to the party accused the right to a speedy and public trial. But to this the plain answer is that, if we are left to the language of the Constitution without further guidance from the statute, then the question as to what does or does not constitute, within the meaning of the constitutional provision, a speedy public trial, must in every instance rest in the discretion of the particular judge to whom the question may be addressed. At common law — even at very ancient common law — a prisoner’s right to a speedy trial was secured to him by the commission of jail delivery, whereby the jails were cleared, and-the prisoners therein confined either convicted and punished, or delivered from custody, twice every year. 2 Hawk. P. C. c. 6. It was the abolition of the commission of jail delivery which has made necessary our later statutes defining the limit of the delay allowed the state in bringing alleged malefactors to trial. Such statutes were unnecessary while the custom of jail delivery prevailed, for the justice had not only power to discharge such prisoners as upon their trial might be acquitted, but all such ‘against whom upon proclamation made no evidence shall appear to indite them.’ Id. c. 6, § 6. It thus comes that we have upon the statute books of our states different provisions regulating, the right of the defendant and the duty of the state touching his speedy and public trial. By some of these provisions it is expressly declared that upon the failure of the state to bring the prisoner to trial within the reasonable time prescribed by law, the right of the state to proceed further against him for the alleged crime shall cease. In others, owing to their peculiar readings, the courts have conceived such to be the intent of the Legislature, and have adjudged accordingly; while by still other statutes provision is made, not for an entire discharge from liability, but merely for a discharge from his imprisonment under the process or proceeding by which he is held. Nor can there be perceived anything unconstitutional in any of these varying provisions. The constitutional right of a defendant charged with crime is to a speedy trial, and this primarily had to do with his personal liberty as being the one and efficient means by which he should not, for an undue time, be left to languish in jail, and thus be robbed of such part of his life. One state may, therefore, in its wisdom, say that, if its officers do not give the accused his speedy trial, it will no longer lift its hand against him, and he goes as free as though he had been acquitted by a jury of his peers. Another state, however, may equally, within the same provision of the Constitution, declare that, if the defendant be denied his speedy trial, the prosecution shall be dismissed, and he shall be at liberty, but that such dismissal and such enlargement shall not be a bar to a further prosecution. And this, in terms, is what our state has done. In expressly providing that, if the defendant be not brought to trial within 60 days, the prosecution shall be dismissed, it has further prescribed that such dismissal shall not be a bar to- further prosecution. In Ex parte Clarke, 54 Cal. 412, the sections of the Penal Code above quoted, with others, were under consideration by this court, and it is said: ‘But the order dismissing the prosecution ends the action commenced by the complaint upon which the magistrate issued his warrant of arrest. It ends the action, however, not by any judgment upon the merits of the case, but by an order in the nature of a judgment of nonsuit, a simple expression of the opinion of the court that that particular proceeding ought not to be further prosecuted. Inasmuch as there is no limitation of time applicable to prosecutions for murder, and as a defendant in whose favor an order of dismissal of the action has been made has never been put in jeopardy within the meaning of the Constitution, a new action on behalf of the people may, in such case, be initiated at any subsequent day, either by presentment of a grand jury' or by a complaint filed with any magistrate.’
“There is no higher dignity attaching to the dismissal of Begerow upon his former application in habeas corpus than would have pertained to the judgment of the trial court if it had granted his application there in the first instance made. It was a decision merely to the effect that upon the showing made the trial court should have dismissed the prosecution and discharged the prisoner.' * * *•
“This petitioner’s former discharge upon habeas corpus was determinative therefore of but two things: First, that the pending prosecution against him must be dismissed; and, second, that because of such dismissal he was entitled to his present liberty. It did not decide, and it would have been in the face of section 1387' of the Penal Code to have decided, that his discharge under the writ was a bar to future prosecution against him. The criminal procedure under which he is now held in custody, though for the same crime, is a different procedure from that which resulted in the information and- prosecution which had been dismissed, and the process by which he is now held in custody is a different process under this new proceeding. Cases will be found, as had been said, where the courts have determined that the discharge under such or similar circumstances upon habeas corpus is a bar to further prosecution for the same offense. Amongst these cases — and many have been examined — may be instanced Green v. Com., 1 Rob. (Va.) 731; Ex parte McGehan, 22 Ohio St. 442; Ex parte Jilz, 64 Mo. 205, 20 Am. Rep. 218; Com. v. McBride, 2 Brewst. (Pa.) 545. But in each and all of these it will be disclosed that the courts were deciding in accordance with the mandate of their statutes. With us, as has been said, there is no such mandate, and the express declaration of our law is that the discharge shall not be a bar to further prosecution. In State v. Fley, 2 Brev. [S. C.] 338, 4 Am. Dec. 583, Rochelle, who had been discharged from a former commitment for murder because of delay in prosecution under the habeasl corpus act, urged, after conviction, that because of such* discharge he could not be legally tried, and to this the court made the following answer, which meets our hearty approval: ‘The discharge of Rochelle under the habeas corpus act cannot, upon any sound principle, be considered as an acquittal from the charge so as to bar a subsequent prosecution for the same offense. The act was made to secure the citizens of the state from vexatious arrests and imprisonment, and not to protect them from prosecutions for crimes actually committed. The act in favor of liberty was sufficient to operate the discharge of the. prisoner Rochelle from his former imprisonment when the state officer was not ready to produce the proofs of his guilt, but it would be monstrous to say that such a discharge should shield him from a subsequent prosecution, when the proofs of his guilt are ready to be produced.”

The Arizona Supreme Court, in the case of In re Butts, 19 Ariz. 318, 170 Pac. 792, has passed squarely upon this proposition in construing a similar statute of that state.. The court says:

“Upon her motion the court dismissed the prosecution for the reason the information was not filed within the 30 days after she was held to. answer as required by law. On the same day she was arrested and charged with the same offense, and, after her preliminary examination, was again held to answer. She is seeking her liberty in this proceeding by the writ of habeas corpus on the ground that the order of the court dismissing the prosecution in the first instance is a bar to any other prosecution for the same offense. By explicit direction of the statute, the order of dismissal was not a bar to another prosecution. The only matter heard and determined on the motion to dismiss under section 1274 was merely a determination! of her right to dismissal of that prosecution and her release from custody at that time. The statutes providing that such action by the court is not a bar to any other prosecution for the same offense, it matters not when in point of time such other prosecution was commenced, whether immediately after such order was made or not. We have a clear guide in the statute, and it is so' plain that any attempt to argue or interpret the statute would only obscure it.”

See, also, State v. Caldwell, 9 Wash. 336, 37 Pac. 669; State v. Deloria, 129 Wash. 497, 225 Pac. 405; State v. Silver, 152 Wash. 686, 279 Pac. 82; State v. Crawford, 83 W. Va. 556, 98 S. E. 615; State v. Garthwaite, 23 N. J. L. 143; People v. Henwood, 65 Colo. 566, 179 Pac. 874.

This court, in an opinion by Judge Doyle, in a habeas corpus case, Ex parte Menner, 35 Okla. Cr. 252, 250 Pac. 541, 542, says:

“It may be well for us to say here that, under section 2915, Comp. St. 1921 [22 Okla. St. Ann. § 814], the only effect of a dismissal, as provided for in the sections quoted, is that the defendant must, if in custody, be discharged! therefrom, or, if admitted to bail, his bail is exonerated. It is expressly provided by section 2918 [22 Okla. St. Ann. 817], that an order for dismissal of the action in such cases is not a bar to any other prosecution for the same offense.”

While the question was not directly involved in that case, the court, after due consideration, placed the same construction upon our statute that is now being placed upon it by this court. See, also, Ex parte Warford, 3 Okla. Cr. 381, 106 Pac. 559; Bayne v. State, 48 Okla. Cr. 195, 290 Pac. 354.

The contention of petitioner that the crime charged in cases Nos. 940 and 941 are the same, and that the additional charge in No. 941 of former conviction only has reference to the increasing of the punishment, is true, as has been held by this court in the case of Williams v. State, 56 Okla. Cr. 245, 37 P. 2d 658, and Ex parte Bailey, 60 Okla. Cr. 278, 64 P. 2d 278, but the contention that the dismissal of the burglary charge in case No. 940 without an order of the court to hold the defendant is a dismissal of the entire proceedings so that the county attorney is not at liberty to file another charge based upon the same facts and within the statutory limitations cannot be maintained in view of what has heretofore been stated.

We are of the opinion that the petition for a writ of habeas corpus should be denied. The fact that the information in case No. 941 was filed by the county attorney prior to the dismissal of the first case, No. 940, does not in any way affect the charge in this case. The defendant will only be put on trial for one offense. The petition for a writ of habeas corpus is therefore denied, and1 petitioner is remanded to the custody of the sheriff of Grant county subject to the order of the district court of said county.

DOYLE, J., concurs. DAVENPORT, P. J., not participating.


text:
    THOMAS JAMES CLARK v. STATE.
    No. A-9266.
    Nov. 12, 1937.
    (73 P. 2d 481.)

      O. A. Cargill, for plaintiff in error.
    ' Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of murder, was convicted of manslaughter in the second degree and given a sentence of three years in the penitentiary, and has appealed.

This charge was the outgrowth of a collision of .a truck driven by defendant and an automobile driven by Paul Coonrod, Sr., at 909 Southwest Twenty-Ninth street, in Oklahoma City, at about 8 a. m., April 7,1935. In this Collision Ollie Coonrod, the wife of Paul Coonrod, and his son, Paul Coonrod, Jr., were both killed.

The information in this case was filed on June 21, 1935, and consisted of two counts, which were as follows:

“First Count: That is to say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being did then and there wil-fully and feloniously, while under the influence of intoxicating liquor, drive, run, propel and operate a certain motor vehicle to wit: a certain 1933 Dodge truck automobile 1934 license tag 668-T-937 in, upon and over a certain public street in Oklahoma City, said county and state to wit: in the 900 block on Southwest 29th street in Oklahoma City, said county and state, in an easterly direction, and in a reckless and careless manner; and while so under the influence of intoxicating liquor, and. driving and operating the said automobile as aforesaid, the said defendant did at approximately 909 Southwest 29th street in Oklahoma City, said county and state, unlawfully, wrongfully and feloniously drive into and strike a certain Dodge coupe automobile being driven in a westerly direction at said time and place by Paul Coonrod, with such force and in such manner as to then and there and thereby inflict upon the body of Paul Coonrod, Jr., who was then and there and thereby at said time and place riding as a. passenger in said Dodge coupe driven by Paul Coonrod, Sr., certain mortal wounds of which said mortal wounds so inflicted as aforesaid, the said Paul Coonrod, Jr., did linger and lingering, did die, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma;
“Second Count: That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there unlawfully, wilfully, wrongfully and feloniously run, drive, propel and operate a certain automobile, to wit: a certain' 1933 Dodge truck automobile, 1934 License Tag 668-T-937, upon and over a certain public street in Oklahoma City, said county and state, to wit: in the 900 block on Southwest 29th street, in Oklahoma City, said county and state, in an easterly direction, and in a reckless and careless manner, at a high and. dangerous speed, imminently dangerous to others and evincing a depraved mind, regardless of human life, and while so driving said automobile as aforesaid, he, the said defendant, did at approximately 909 Southwest 29th Street in said Oklahoma City, said county and state, unlawfully, wrongfully and feloniously drive into and strike a certain Dodge coupe automobile being driven in a westerly direction at said time and place by Paul Coonrod with such force and in such a manner as to then and there and thereby inflict upon the body of Ollie Coonrod. who was then and there riding as a passenger in said Dodge coupe driven by Paul Coonrod, Sr., certain mortal wounds of which said mortal wounds so inflicted as aforesaid, the said Ollie Coonrod did linger and lingering did die, contrary to the form of the statutes in. such cases made and provided against the peace and dignity of the state of Oklahoma,”

No motion or demurrer was filed by the defendant prior to the trial attempting to challenge the sufficiency of the information. After the jury had been impaneled, and the assistant county attorney had begun his statement to the jury, defendant’s counsel for the first time objected to proceeding further, and to the taking of any testimony in the case for the reason that the information, first, did' not state facts sufficient to constitute a cause of action; second, that the same was duplicitous; and, third, that the first count in the information charged the defendant with killing Paul Coonrod, Jr., and the second count charged him with killing Ollie Coonrod, thus charging two -separate and distinct crimes in the information. The county attorney’s attention being called to this allegation made the statement that the placing of the name of Ollie Coonrod in the second count of the information was a typographical error of the stenographer in preparing the same, and asked leave to dismiss the second count of the information and proceed to trial on the first count. This request was permitted by the court over the objection of the defendant, and his motion was then overruled by the court, to which ruling he excepted, and the case proceeded to., trial on the information as originally drawn, with the second count eliminated. This constitutes the first error complained of by defendant. In his brief they are set out as follows:

“(a) The court erred in overruling the defendant’s objection to the introduction of evidence on an information that was faulty and defective, and did not contain, nor constitute a cause of action in favor of the state and against the defendant.
“(b) That error was committed by the trial court in permitting the state to amend the faulty, duplicitous and defective information in substance and after the beginning of the trial, without the defendant being arraigned thereupon, or being permitted to plead thereto ; and that the state’s dismissal constituted a conclusion of the charge under the particular information whereupon he was being tried, and that his jeopardy terminated and the continuation of the trial was error.
“(c) That the court erred in permitting the introduction of evidence of a precedent crime, namely, leaving the scene of an accident, which precedent crime was not charged or set out in the faulty, duplicitous and defective information; the admission of which evidence was prejudicial to the rights of the defendant.”

Homicide, under the statutes, Oklahoma Statutes 1931, § 2216 (Okla. St. Ann. tit. 21, § 701, p. 254), is murder in the following eases :

“1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.
“2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

The information in the instant case was based upon the third subsection of the above statute, that the murder was committed by defendant “without any design to effect death by a person engaged in the commission of any felony.” The statute relied upon as constituting a felony was Oklahoma Statutes 1931, § 10324 (47 Okla. St. Ann. § 93) which provides:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor isi prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1, of this act [10322] and any person violating the provisions of this section shall be deemedl guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or a fine of not more than two thousand ($2,000) dollars, or by both imprisonment and fine.”

Sections A and B, under proposition 1, may be considered together. Oklahoma Statutes 1931, § 2883 (Okla. St. Ann. tit. 22 § 401, p. 155), provides:

“The indictment or information must contain:
“1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.
“2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Oklahoma Statutes 1931, § 2886, Okla. St. Ann. tit. 22, § 404, p. 171, provides:

“The indictment or information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same court.”

Oklahoma Statutes 1931, § 2890 (Okla. St. Ann. tit. 22, § 408, p. 187) provides:

“Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other words conveying the same meaning may be used.”

Oklahoma Statutes 1931, § 2891 (Okla. St. Ann. tit. 22, § 409, p. 192) provides:

“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.
“7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Oklahoma Statutes 1931, § 2892 (Okla. St. Ann. tit. 22, § 410, p. 206), provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

These statutes are a radical departure from the old common law with reference to criminal law and criminal procedure. Many of the technicalities of common-law pleading, and especially as construed by some of the older cases, no longer apply when construed under the terms of the above statutes. Their purpose was the elimination from the trial of cases of many immaterial matters, and especially to repeal the common-law doctrine that penal statutes should be strictly construed, and established in this state the equitable doctrine of a liberal construction. These statutes have special application to' indictments and informations. It does away with the strict construction once placed upon these pleadings, and makes them sufficient if a person of ordinary understanding can know1 what was intended by the terms used. They place upon the courts the duty of holding them sufficient unless they are so defective as to prejudice the rights of the defendant upon the merits of his case. Applying the above statutes and the construction placed upon them by the courts of this state to the information here filed, we find that the first count charges the defendant with willfully, unlawfully, and feloniously committing the crime of murder. It then alleges the manner and form in which the act was committed by the defendant, by stating, “and while under the influence of intoxicating liquor”; and further alleges: “In a reckless and careless manner and while so under the influence of intoxicating liquor.” In our opinion, the information apprised the defendant of the charge that was intended to be made against him, viz., that of murder, under subsection 3, section 2216, Okla. Stats. 1931 (Okla. St. Ann. tit. 21, § 701, p. 254). It charged him with the crime of murder while engaged in the commission of a felony. It would have been better pleading to have stated in the information the exact words of the statute, “engaged in the commission of any felony,” but instead of doing this the pleador stated in full how the crime was committed, and the allegations in the information follow the statute, which makes the driving of a truck or automobile while under the influence of intoxicating liquor a felony. Under statutes similar to ours, the courts have held where the defendant is charged with murder while engaged in the commission of a felony it is unnecessary to allege that the act was committed “without any design to effect death,” and especially is this true under subdivision 3 of the act, defining murder under our statutes (21 Okla. St. Ann. § 701, subd. 3) 30 C. J., p. 113; Keezer v. State, 90 Neb. 238, 133 N. W. 204; Wharton on Homicide, p. 875, § 574; Carle v. State, 34 Okla. Cr. 24, 244 P. 833.

The contention that the information was duplicitous was true until the second count was dismissed. It alleged two separate and distinct cases. The defendant could not have been tried for both of these crimes under the allegation of the same information, but with the dismissal of the second count we do not see that the first count is in any way duplicitous. Neither do we think the court was in error in proceeding with the trial upon the first count after the dismissal of the second count without re-arraigning the defendant. Section 2886 (22 Okla. St. Ann. § 404, p. 171) supra, gives the right to set out different offenses in separate counts of the indictment or information, and the same offense may be set forth in different forms or degrees under different counts. This section clearly gives the right to dismiss one of the counts and rely upon the other and would not require a rearraign.ment of the defendant, nor would it constitute jeopardy as is here contended. Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285.

In the case at bar, the defendant was properly charged with the crime of murder, as above stated, under the statute that the killing of another while engaged in the commission of a felony constitutes that crime. The court, under the holdings of this court, properly instructed the jury upon murder, manslaughter in the first degree, and manslaughter in the second degree. Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 817, 34 L. R. A. (N. S.) 1121; Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314; Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117; Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519.

The jury convicted, the defendant of manslaughter in the second degree, and assessed his punishment at three years in the penitentiary. The evidence was conflicting as to whether defendant was under the influence of intoxicating liquor at the time of the collision. The defendant testified that he was not; many others testified he was. The jury by its verdict found these issues against the defendant. The jury, under the law and facts in this case, might have been justified in finding the defendant guilty of a greater offense, but as stated in the case of Warren v. State, supra, “but let that be as it may, defendant cannot be heard to complain that he has been convicted of a less offense than the one he actually committed.” This case, quoting from the case of State v. Lindsey, 19 Nev. 47, 50, 5 Pac. 822, 823, 3 Am. St. Rep. 778, says:

“But suppose the jury, in charity for the faults and weakness of the human race, sympathy for the prisoner, or any other mistaken view of the law or the facts, lessens the offense to murder in the second degree, is the prisoner to go free? Does not the case stand precisely upon the same plane as a verdict of murder in the second degree, in any case not enumerated in the statute, where there is a willful, deliberate, and premeditated killing? Is it not as much the duty of the jury in such a case to find the prisoner guilty of murder in the first degree as in the cases specially enumerated in the statute? ¡Suppose the jury in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a reasonable doubt, regardless of all the testimony, and in violation of the well-settled principles of law, should find the prisoner guilty of murder in the second degree, would the prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is it not a fact that juries frequently render just such verdicts, and the result cannot be accounted for upon any theory other than that of a compromise of opinion? Why should such verdicts be allowed to stand? The answer is plain. The reason is that the statute leaves the question of degree to be settled by the verdict of the jury.”

We will not quote further, but be content with citing additional cases that have maintained this principle throughout the history of the courts of this state. Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430 and 120 Pac. 300; Jones v. Territory, 4 Okla. 45, 53, 43 Pac. 1072, 1075; Wright v. Territory, 5 Okla. 78, 80, 47 Pac. 1069, 1070; Smith v. Territory, 11 Okla. 656, 657, 69 Pac. 803; Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285; Brock v. State, 39 Okla. Cr. 162, 263 Pac. 1115.

It is next contended by defendant that the court erred in permitting the transcript of Paul Coonrod, Sr., taken at the preliminary hearing of this defendant, to' be read, for the reason that the state had failed to show due diligence to produce this witness in person, and that the lights of defendant had been violated by not being personally confronted by this witness. The record discloses that this witness had been employed by a corporation in Oklahoma City, and that a short while before the trial on October 26, 1936, his company had transferred him permanently to the state of Michigan. His whereabouts was first learned by the county attorney upon the return of the subpoena that was issued for him on October 19, 1936, and returned October 26, 1936. The deputy sheriff who attempted to serve him was placed upon the witness stand by the state, and definitely testified that the witness had moved from Oklahoma to the state of Michigan. This was also established by the testimony of Mr. Rittenhouse, an attorney for the company who wired Mr. Coonrod during the trial at the request of counsel for the defendant. Under this definite showing that the witness had permanently moved from the state and was without the jurisdiction of the court, and this information not being received by the county attorney until the case was ready for trial, under the prior opinions of this court it was not error to permit the transcript of the witness to be read. It was taken in the preliminary examination of the defendant when both he and his present counsel were present and he was cross-examined, and the defendant had the benefit of this cross-examination. The rule that has been established in this state is well stated in the case of Bryant v. State, 33 Okla. Cr. 383, 244 Pac. 453, 454, where it is said:

“It is the well-established doctrine in this state that, Avhere the testimony of the witness was given at a preliminary examination, and taken down by the reporter in the presence of the defendant and his counsel, who' cross-examined him, and such testimony was filed with the clerk, the transcript is admissible, where the witness is not present and cannot be found in the jurisdiction. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Jeffries v. State, 13 Okla. Cr. 146, 162 Pac. 1137; Henry v. State, 10 Okla. Cr. 369, 136 Pac. 982, 51 L. R. A. (N. S.) 113; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Valentine v. State, 16 Okla. Cr. 76, 194 Pac. 254; Clark v. State, 28 Okla. Cr. 31, 228 Pac. 791.”

We have carefully examined the cases cited by the defendant to sustain his contention. They are Golden v. State, 23 Okla. Cr. 243, 214 Pac. 946, 947; Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001; Foster v. State, 35 Okla. Cr. 70, 248 Pac. 847; Scott v. State, 43 Okla. Cr. 232, 278 Pac. 393. In the Golden Case, the return of the subpoena simply showed that the witness was “not found.” There was no showing that he was out of the state or out of the jurisdiction of the court. In the Davis Case, the witness was a resident of Grady county, Okla. No subpoena had been issued for him. He had promised orally to attend the trial, but no effort to serve him had been made by the state. At the time of the trial he was only temporarily out of the state; the court holding that under the circumstances the transcript could not be introduced. In the Foster Case, the testimony was taken in a case other than in the case of defendant, and the court held that evidence taken in a proceeding in which the defendant was not a party was prejudicial error. In the Scott Case, the record showed that a subpoena for the witness was issued September 25, 1935, and returned September 26, 1935, showing that John Millsap was in Ft. Smith, and Jeff Davenport (the witness whose testimony was read) was somewhere in Texas, not found in Le Flore county. The record showed that the witness John Millsap was afterwards presented at the trial and testified. The reporter who took the evidence at the preliminary was called as a witness. The court advised the county attorney to call the officer who attempted to make service, but this was not done. Another witness was called who testified that something like a month ago he had heard from the witness near Sherman, Tex., on a rural route. He did not produce the letter, and on cross-examination, when asked if he could swear of his own knowledge that this witness was not within the state of Oklahoma, he answered: “No, sir.” Under this state of facts, Judge Davenport, in the above case, speaking for the court, held that a proper showing had not been made to permit the reading of the transcript. It will thus be seen that all of the above cases are distinguishable from the case at bar.

It is next contended by defendant that the court erred in making unwarranted and unjustified attacks upon counsel for defendant, both within and without the presence of the jury, and manifested throughout the trial a hostile and difficult attitude toward defendant’s counsel, severely reprimanding him and levying fines upon him, along with a jail sentence for conduct which he arbitrarily deemed contemptuous, which conduct created a hostile feeling in the jury toward the defendant, to prejudice his rights and prevent his having a fair and impartial trial.

It might not be best for this court to comment upon this assignment of error, but we have carefully read the record giving special attention to this proposition. From a reading of the record one is convinced that the court and counsel for defendant were not on the best of terms with each other when the trial of this case started, and this record discloses possibly for that very reason each of them, recognizing their high calling as members of a noble profession, and the high regard for the offices which each held, were doubly careful to see that nothing transpired in this case which would in any way interfere with the rights and liberty of this defendant on the one hand, and that every deference was paid to the court, and tlie high position which he held on the other hand. This record discloses many instances in which the court was careful to say or do nothing in the presence of the jury to jeopardize the rights of the defendant, and it abounds with statements on the part of counsel for defendant showing) his respect for the court and the high position which he occupies, and which counsel so readily recognized. It is true there arose a controversy between the court and counsel as to the admissibility of certain evidence which counsel in his opening statement to the jury stated would be offered in evidence. The court did not think this evi•dence was admissible. In the discussion which took place with reference thereto, the jury was excused and were not present when a fine and jail sentence of one day was assessed by the court. Counsel honestly believed that the evidence was admissible, and this was shown the following morning when he presented authorities which he claimed substantiated his contention. It is true that newspapers in the city published accounts with reference to the court proceedings, but the evidence in the record shoAvs that the court was careful that the jury was not permitted to read these accounts. The bailiffs both testified that no newspapers had reached the jury, and they heard no radio talks with reference thereto. As above stated, very little of the controversy was had in the presence of the jury, and we do not believe that the jury in this case was in any way prejudiced against the defendant by reason of the proceedings therein. The defendant was ably represented, and in a manner that Avas Avell befitting his counsel. The results demonstrate this fact.

This case well illustrates the follies of life led by some people. This defendant, a young man only 19 years of age, was employed by his father in the oil fields of Oklahoma City. His parents were trying to educate him, and at the same time teach him the duties and responsibilities of honest labor. In disobedience of their instructions he procured his father’s truck when he had finished work on Saturday night, and in company with a young Avoman, whom the record shows was not of the best repute, he visited beer joints and dance halls, imbibing in liquor and drinking until the early hours of the morning, when, in company with the young woman, he went to the home of some of those whom he had met at the dance halls, and they again procured a fresh supply of liquor and gin and proceeded to make a night of it Avithout sleep or rest. Early the next morning, in company with one of his companions, he ventured upon the streets of a populous city, driving his truck, and, as the testimony shows, in utter disregard of the rights of others. The result was that the life of an innocent woman and her son was swept into eternity, and by a verdict of a jury of the citizens of this county, through his criminal negligence and carelessness, he is not alone to' suffer, but his good parents will carry their part of the burden for his night of fun.

The judgment of the district court of Oklahoma county is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.