author: DAVENPOET, J.

text:
    TEEL JOHNSON v. STATE.
    No. A-8996.
    March 20, 1936.
    (55 Pac. [2d] 1047.)

      J. N. Fortner, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was jointly charged with Dut Burris, was tried separately and convicted of an attempt to rob, and his punishment assessed at five years in the state penitentiary.

The testimony on behalf of the state in substance is as follows: E. B. Chatham and Jerry Samuels were in the city of Idabel on the 3d day of February, 1933, and drove out in the country; while out in the country they drank some home-brew. They returned to Idabel about sundown, and it was suggested that before they went to get their supper they drive down in what is known as negro town and buy some whisky. They drove down into negro town to the home of Mary Jane Elliott and stopped. The defendant, accompanied by Dut Burris, came to' the ear and asked them what they wanted, and they told them they wanted to get some whisky, and gave the defendant a dollar, and he and Dut Burris left the car and were gone several minutes. When they did not return, Sam-uels and Chatham became uneasy, and Samuels got out and started to see what was the matter, and about that time defendant and Burris came out of the house and pitched a bottle of whisky in the car, and, while they were talking, they discovered Dut Burris was trying to take the spare tire off the car. They stopped him from talcing the tire, and, as the carj door was open, he climbed in the car on Chatham and began to punch Samuels with his fist, demanding that he give him money. Chatham told the defendant he did not have any money but the $1 he had given him for the whisky. The defendant was on the side of the car next to Samuels, and demanded money of Samuels, and finally jerked Samuels out of the car. Samuels got his knife out and cut the defendant, and Dut Burris run around, and he cut Burris. Chatham then got the car started and drove away, and Samuels walked off. This is the testimony offered by the state.

'The defendant denied he demanded any money from either of the men, and states he refused to deliver any whisky to Samuels, as Samuels at one time, while acting as an officer, had bought whisky from the defendant and then turned him in, or “snitched” on him, to use the defendant’s expression.

Mary Jane Elliott and two or three other negroes testified that Johnson and Burris did not come in the house after the car the defendant was riding in came up, and they did not say anything about trying to rob the defendants. Then they detail the fact that the defendant cut the two negroes with his knife.

The record shows that Burris was in the penitentiary at the time of the trial, but does not show on what charge he had been sentenced.

There is a direct conflict in the testimony; the defendant and two or three negroes testifying positively that the defendant did not come in the house after the car drove up. The defendant says he did not go in the house to get any whisky, and states positively he did not try to rob either Samuels or Chatham or demand from either of them any money. The testimony of Chatham shows the defendant did not make any effort to take anything off of Chatham and Samuels, or take anything out of the car, but states that 50 cents was all the money he knew of in connection with the trouble. The defendant took the whisky back. The trouble occurred on the street.

The testimony as herein set out is all thait it is deemed necessary to refer to. It is shown by the record that these two men went to what is known as negro town, one of them was a white man and the other a Choctaw Indian, after returning from the country, for the purpose of getting whisky; say they paid for it, but the whisky was taken from them by the defendant; that Burris was trying to take this spare tire; and that both the defendant and Burris got in the car demanding money; that is denied.

A number of errors have been assigned by the defendant, but the only error necessary for this court to consider is, Is there sufficient testimony to sustain a conviction? That question has been before this court so many times, and the court has on each occasion in passing upon the question held that, where the evidence is conflicting, it will not substitute its judgment for that of the jury. Cain v. State, 37 Okla. Cr. 282, 257 Pac. 1114; Keesee v. State, 46 Okla. Cr. 405, 287 Pac. 813.

This court has further held that, where there is any competent testimony, though conflicting, to sustain the verdict and judgment, it will not disturb the same. Dixon v. State, 46 Okla. Cr. 25, 288 Pacfl 357; Jeffries v. State, 47 Okla. Cr. 408, 288 Pac. 987; Andres v. State, 51 Okla. Cr. 229, 1 Pac. (2d) 178.

It is next urged by the defendant that, although the testimony be sufficient to sustain the conviction, the punishment imposed is excessive, and should be modified. The Attorney General in his brief states:

“The modification of the punishment in this case is a matter addressed to the sound discretion of this court, and if the court in its judgment thinks the punishment excessive, the Attorney General will not seriously oppose a modification of the same.”

After considering all the facts in this case and the briefs of the plaintiff in error and the Attorney General, we believe the maximum punishment imposed upon the defendant in this case is excessive.

We find white men going into a negro community late in the afternoon or early evening seeking to buy whisky from the negroes. One of the negroes they encountered had been turned in on a previous occasion by one of the men who had driven down to buy the whisky. A controversy arose and a fight ensued, where one of the white men stabbed both of the negroes, and they ran away. The white men had put themselves on an equal with the negroes when they went to the negro community to buy whisky, and while the testimony, as stated herein, is conflicting, it is sufficient to sustain the conviction. We believe the punishment to be excessive, and, under the authority given by the statute, the punishment is modified from five years’ imprisonment to two years, and, as modified, the judgment is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    TOM PARKEY v. STATE.
    No. A-8951.
    March 20, 1936.
    (56 Pac. [2nd] 144.)
    O. J. Moody and Blanton, Curtis & Blanton, for plaintiff in error.
    Mac Q. Williamson, Átty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of Garvin county, wherein the defendant, Tom Parkey, was convicted of rape alleged to have been committed in said county, according to the allegations of the information, on or about the 14th day of February, 1932, upon one Pauline Solley, an unmarried female person under the age of 16 years and of the age of 15 years past; said defendant being over 18 years of age, and of the age of 26 years; said judgment having been rendered January 7, 1935, in pursuance of a verdict of the jury finding him guilty as charged and fixing his punishment at confinement in the state penitentiary for a term of one year.

The testimony shows that the prosecutrix was between 15 and; 16 years of age; that no man had ever had sexual intercourse with her except the defendant. That some one had sexual intercourse with her is indisputable, and that such intercourse occurred at the time she was under the age of consent.

The testimony of the prosecutrix is that she lives three miles west of Paoli, in the Florence Chapel community ; that on or about the 14th day of February, 1932, she attended the Florence Chapel, leaving the chapel that night about 9 o’clock with the defendant, Tom Parkey, together with Lawrence Watson, Cecile Minyen, Yida Purser, and Pat Irvin; that after going about a quarter of a mile she and the defendant turned off on another road and he commenced hugging and. petting her, and finally forced her down and had intercourse with her the first time; that about a week later he had sexual intercourse with her; that some time later, while attending a party at Kemp Lake, he took her for a boat ride that night; that he tied the boat to a bush on the bank, and they left the boat and had sexual intercourse before returning; that the last act was Wednesday night after Easter Sunday, after they had attended church in Paoli; that as a result she became pregnant and she so advised him; that he advised her to go to a doctor and have something done; that her child was born January 6, 1933; that the defendant was the father of her child.

The defendant, as a witness in his own behalf, denied having improper relations of any kind with the prosecutrix. He testified that he had lived in Garvin county 23 years. That Pat Irvin came to “our house and said, ‘I have you a date,’ ” and they got in the car with Edgar and Lawrence Watkins and drove to Solley’s home. Yida Purser was staying with Miss Solley; Pat Irvin was going with Vida. Then they all went to the Florence Chapel, and left there together.' Edgar Watkins got his girl, drove up to the corner, and waited for them in the lane. Pat and Yida started on ahead, and he with Pauline followed them. That he did not have sexual intercourse with this Solley girl on this occasion or on the occasion of the party at Kemp Lake or at any other time. That when school closed he walked home with Pauline and she told him about being in trouble and told him that Carroll Lewis was responsible for it. On cross-examination he stated that he left the country, but not on account of this trouble.

Pat Irvin testified: “We came out of the church that night and went up the road a quarter of a mile towards Paoli, and found the car a quarter of a mile south and three-quarters east of the church. Edgar Watson and Mamie Minyen were in the car and were waiting for us. Tom Parkey and Pauline came up to the car behind us.” That he did not see anything wrong between Tom Parkey and the Solley girl that night. Yida Purser’s father came along and told Vida to come on home.

Several errors are assigned, but in the brief filed for appellant but two questions are discussed: First, error of the court in refusing to grant the defendant a new trial on the ground of newly discovered evidence, as set forth in the supplemental motion for new trial, filed in the trial court at the next term of court after the judgment had been pronounced on the verdict. Second, that the verdict and judgment are not sustained by sufficient evidence, and are contrary to law.

Tbe main contention is that a new trial should be granted because of the alleged discovery of new evidence, consisting of the testimony of Ray Purser and his son, Douglas Purser. The affidavits made by the Pursers were attached to the motion. That these new witnesses would testify that they were at the Florence Chapel on the evening of February 14th and started home behind the defendant and the prosecutrix; that they saw nothing that indicated that the defendant and this girl indulged in an act of sexual intercourse on that occasion.

On the hearing the state called affiants.

Ray Purser testified as follows:

“Q. Now, you did not see Tom Parkey and Pauline Solley all the time on this particular night? A. Lacking, a quarter of a mile. Q. From that quarter of a mile on, you did not see them? A. No, sir.”

Douglas Purser testified as follows:

“Q. On this occasion you did not see Pauline Solley and Tom Parkey all the time that night? A. No, sir.”

A motion for new trial upon the ground of newly discovered evidence is addressed to the trial court’s discretion, and its ruling thereon will not be disturbed on appeal except for an abuse of discretion; the presumption being that the discretion was properly exercised. McKinney v. State, 18 Okla. Cr. 562, 196 Pac. 974.

We think it is apparent that the defendant’s affidavit, and the affidavits attached thereto, presented no facts which in the exercise of the sound discretion of the trial court would have justified the granting of a new trial on the ground of newly discovered evidence.

Tbe record discloses that tbe testimony of Purser and bis son was not newly discovered evidence, as tbe defendant testified that be knew at tbe time of the trial that they were at tbe cburcb that night and that “they were along -with us, or just behind us.”

Upon tbe record before us we think tbe court properly overruled tbe motion.

It is contended that tbe testimony is insufficient to sustain tbe verdict and judgment. With this contention we cannot agree. After a full consideration of tbe testimony, we are satisfied tbe verdict of tbe jury is amply supported by tbe testimony. In a prosecution for statutory rape, evidence of other acts of sexual intercourse between tbe defendant and tbe prosecutrix, subsequent to tbe one charged and relied upon for a conviction, is admissible. -

In tbe case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, 734, it is said:

“On reason and by great weight of authority, we think tbe correct rule is that, in a prosecution for ‘statutory’ rape, evidence of other acts of sexual intercourse between tbe same parties is admissible, including evidence of acts committed subsequent to tbe particular act relied upon for conviction, even though it proves other and distinctive offenses, as relevant to- show the true relation of tbe parties to each other, and to characterize and| explain the act for which tbe defendant is on trial.- It is tbe general desire to satisfy lust that is! involved in this class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. However, tbe limits of time over which evidence of this kind may range is largely within tbe legal discretion of .the trial court.”

Having considered tbe questions presented, our conclusion' is that the defendant had a fair trial and was properly convicted. There being no error in the record, the judgment of the court below is affirmed.

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


author: DAVENPORT, J.

text:
    LEONARD HUDGENS v. STATE.
    No. A-8992.
    March 27, 1936.
    (56 Pac. [2d] 421.)
    Leonard Hudgens, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the larceny of an automobile, and sentenced to serve a period of five years in the state penitentiary.

The testimony in substance is that the owner of the car, Millard Lawson, lived over the Me Swain Theatre, in the city of Ada; he owned a Buiclc coupe; he parked his car by the side of the theater where he lived, and when he got up at 2 o’clock in the morning to go to work his car was gone. He reported the same to the officers; a number of parties were driving from Ada; shortly after 10 o’clock p. m., they found a wrecked car a short distance out of Ada, on highway No. 12; shortly after they stopped at the wreck the defendant came up to the car with his face scratched, cut, and bleeding; he advised the parties there was another party with whom he was riding who had gone to get ah ambulance; some of the parties took the defendant to the hospital at Ada, where he was attended by a physician; at the time the defendant came up to the car that was wrecked, and as they brought him back to Ada, the witnesses said he was in a drunken condition.

The defendant, testifying in his own behalf, admitted he had been convicted of burglary and larceny; that he came to the city of Ada the afternoon before this car was stolen; the accident occurred on the highway about 10 p. m.; that he had a drink, and when he roused up he had been robbed; his home was near Konawa, Okla. That he was picked up on the highway near the highway department warehouse north of Ada by a party whom he would not know if he saw him; that the party had whisky, and was driving, and turned around and went back to a place in Ada, and this defendant thought they were on their way home and he went out and did not know anything until he came to himself down on the road by the side of the wrecked car. He was so drunk he did not know what he was doing, and insisted there was some one with him, but he did not know the name of the party. This is in substance the testimony.

Several errors have been assigned by the defendant, and quite a lengthy brief, with many citations, has been filed in support of his assigned errors. Suffice it to say that the authorities cited do not sustain the contention of the defendant, as shown by the record in the case.

Drunkenness is no excuse or justification for larceny. The testimony shows the defendant was in Ada the afternoon of that day, and that he was at the scene of the wrecked car, or near it when other parties arrived; he admitted he was in the car with some one else. That some one is the usual excuse offered by many who commit crime — that the party with whom they were traveling were strangers and they did not know them. The testimony of the defendant as to- his being with the. party in the afternoon and evening, getting drunk, and starting home with him in the car- does not seem to have much weight with the court or the juries in this country.

" ' In Leslie v.’ State;-22 Okla. Cr. Ill, 210 Pac. 297, this court, in the second paragraph of the syllabus, said:

“Where there is evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the crime charged, the conviction will not be set aside because of' the alleged insufficiency of 'thé evidence.” ’

In Davis v. State, 31 Okla. Cr. 415, 216 Pac. 651, this court, in the first paragraph of the syllabus, said:

“Inferences arising from possession of property recently stolen, supplemented by other circumstances, held sufficient to establish larceny.”

Under all th.e circumstances, we believe the jury was justified .in concluding that the defendant was guilty , of taking the car. The instructions of the. court were fair to the defendant, and correctly advised the jury as to the law applicable to the facts. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment is affirmed.

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


author: EDWARDS, P. J. DAVENPORT, J.

text:
    J. T. JONES v. STATE.
    No. A-8738.
    March 27, 1936.
    (56 Pac. [2d] 423.
    Ira A. Hill and Guy D. Talbot, for plaintiff in error.
    J. Berry King, Att-y. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Alfalfa county of manslaughter in the first degree, and was sentenced to serve a term of ten years in the state penitentiary.

At the time charged defendant was a caretaker of a tract of land held by the Saline Game Preserve, a corporation, hereinafter referred to as the preserve, and deceased had a farm adjoining this on the south, on a part of which he had a garden. Formerly a small stream flowed across a corner of the deceased’s land, and he had used its waters to irrigate this garden, but the stream had been diverted above the lands of the preserve into a pond or lake on the preserve. On previous occasions deceased had broken the dike where the stream was diverted, in order that the water might continue to flow across his land, and this had occasioned a controversy between deceased and defendant as custodian of the preserve, and a civil suit had grown out of it. There is also evidence of threats by deceased against defendant and the owners of the preserve. On the day of the homicide, according to the state’s evidence, deceased had caused the water to turn from the course where it was diverted to flow across his land, and defendant was again diverting it to the lake on the preserve, when deceased, with a hoe in his hand, accompanied by one Adams and one Graves, appeared on the scene for the purpose of removing the obstruction and again permitting the water to flow across his land. Deceased was in advance of Ames and Graves and went on the embankment of the lake, and, as he did so, he was ordered by defendant, “Get the hell out of here.” Deceased responded in an angry manner, and defendant then, who was some 75 or 80 feet from deceased, fired at him with a shotgun, several shot of which pierced his heart and caused his death in a few seconds. There is evidence that at the time the shot was fired defendant was in a stooped over position and that the shooting was deliberate.

There is a conflict in the evidence. Defendant testified he had been working on the ditch when he saw deceased, Ames, and Graves coming; that on account of previous difficulties he was afraid of deceased, and that just before the shooting deceased made a threat; that deceased had a hoe and said, “I told you that whenever I caught you on this land I was going to chop your head off”; that he ran towards the car; that deceased came near him and then turned back to the dam, and that defendant then came back and had some conversation with deceased, who had opened the drain pipes, and, when deceased came toward him a second time and was twelve or fifteen steps from him, he fired at him with a shotgun, and that after he fired the deceased came two or three steps and then turned back; that the gun was loaded with heavy duck shot and he fired because he believed he was in danger. His testimony tends to make a case of self-defense, although it is not clear that he believed he was in imminent danger at the time he fired the fatal shot. The evidence amply supports a judgment for manslaughter in the first degree.

The first contention made is that the court did not correctly instruct the jury on the law of self-defense, in that it did not specifically tell the jury that defendant, at the time he fired the fatal shot, was in a place where he had a right to be. The court gave rather full instrae-tions on self-defense, to which defendant reserved a general exception. No additional requests for instructions were made. The jury are told in several instructions in substance if they find defendant had a reasonable ground for believing, and did believe, at the time of the homicide, viewed from his standpoint, that he was in danger of death or great bodily harm at the hands of deceased, and that there was a present necessity to kill deceased in order to save himself therefrom, under such circumstances he would be justified and should be acquitted. No point appears to have been made on the point complained of. The motion for new trial does not point out any instruction as erroneous nor assign as error failure of the court to instruct on any matter, but contains merely the general allegation that the court misdirected the jury in matter's of law. It is settled by many decisions that an alleged error, unless fundamental in character, is waived and will not be considered on appeal unless it was excepted to at the time and then presented to the trial court in a motion for new trial and an adverse ruling excepted to. The fact that defendant was in a place where he had a right to be and deceased at the time of the homicide was a trespasser would not justify the defendant in shooting him, unless at the time deceased made some overt act which, viewed from the defendant’s standpoint, led him to believe he was in danger of death or some great bodily harm and the instructions so state. Schmitt v. State, 57 Okla. Cr. 102, 47 Pac. (2d) 199; Jackson v. State, 49 Okla. Cr. 337, 293 Pac. 567; Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517.

Next it is argued the court erred in excluding the offer in evidence of a certain injunction order and bond. It appears that in August, 1926, in an action by Mina L. Matthews and the Saline Game Preserve v. J. F. Corbet, the deceased, the county judge made an order enjoining Corbet from interfering with a ditch or waterway until further order of the district court, upon the execution of bond in the sum of $600. The bond, at that same time, appears to have been executed in blank. This was excluded, no doubt, because the order for injunction was a mere- temporary order and the bond not in conformity to the order and the proceeding too remote to shed any light on the case. Certainly a temporary injunction order made in August, 1926, which by its terms provided that it should continue till the final disposition of the action or till further orders of the district court, would not have remained in force for some eight years. Deceased was no more nor less a trespasser, whether there was or was not an order of injunction, and defendant’s right to shoot him was no less nor greater whether he was or was not enjoined. The offer was properly excluded.

Complaint is next made that in his closing argument to the jury counsel assisting the prosecution commented on the fact that none of the employers of defendant appeared at the trial. This argument is rather far-fetched and is of no consequence. We fail to see how it was prejudicial to defendant; it appears to us it was rather critical of the employers of defendant, and would tend, if it had any significance, to create a sympathy for him. It is not every improper or poorly chosen argument that will constitute error. It is only when improper argument is such as may influence the verdict that it will warrant interference by an appellate court. The argument here does not fall within the inhibition announced by this court in many cases.

Upon a consideration of the entire record, we are satisfied defendant had a fair trial and that there is no reason for this court to interfere with the judgment. The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.

DAVENPORT, J.

I concur in the opinion of the majority of the court that the evidence, though conflicting, is sufficient to sustain a conviction; but, after carefully considering all the circumstances and facts as disclosed by the record leading up to the killing, I feel the punishment imposed by the court, on the verdict of guilty of manslaughter in the first degree, returned by the jury, under the facts and circumstances as disclosed by the record, is excessive, and should be modified to the minimum under the statute of four years.


text:
    BILL BRADY v. STATE.
    No. A-8987.
    March 27, 1936.
    (56 Pac. [2d] 428.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Custer county, on a charge of possession of intoxicating liquor with intent to sell, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for a period of thirty days.

The judgment was entered May 31, 1935. The court entered an order allowing the defendant 45 days from the said 31st day of May, 1935, in which to make and serve a case-made, but made no order extending the time to file his appeal in this court beyond the 60 days allowed by the statute. The petition in error and case-made was not filed in this court until the 7th day of September, 1935, more than 60 days after the rendition of the judgment. The case-made shows that the same was settled and certified by the trial judge on the 10th day of July, 1935; no reason being given whyi the case-made with petition in error attached was not filed in this court within the 60 days fixed by the statute.

Attached to the case-made is a purported order dated the 5th day of August, 1935, attempting to extend the time for the case-made to be filed in the Criminal Court of Appeals.

A motion to dismiss the appeal has been filed by the Attorney General, on the ground that the case-made with the petition in error attached was not filed in this court within the 60 days provided by the statute, and that no extension of time was granted the defendant within the 60 days to make and serve a case-made and file the same within the statutory time. When the order of August 5, 1935, was entered, the court was without jurisdiction to enter the same; the 60 days provided by the statute for filing the appeal in this court had expired. This court has repeatedly held that when time is extended the record must show such extension, and that the order of extension was made before the expiration of the 60 days after the judgment rendered. Gardner v. State, 18 Okla. Cr. 321, 193 Pac. 56; Wilson v. State, 24 Okla. Cr. 268, 269, 217 Pac. 1057; Rambo v. State, 25 Okla. Cr. 344, 220 Pac. 79.

Section 3192, O. S. 1931, in part, provides:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.” Alexander v. State, 11 Okla. Cr. 110, 143 Pac. 205, 206; Self v. State, 23 Okla. Cr. 349, 214 Pac. 935.

As the record in this case was not filed within the 60 days provided by the statute, and no legal extension of time granted by the trial court, it therefore appears that the motion of the Attorney General to dismiss the appeal should be sustained. It is so ordered, and the purported appeal is dismissed and the case remanded, with directions to the trial court to carry out the judgment and sentence.

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


text:
    AUGUST BRADY, JR., v. STATE.
    No. A-8988.
    March 27, 1936.
    (56 Pac. [2d] 913.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence on behalf of the state shows that on the 20th day of February, 1935, the defendant was operating a filling station three miles south of the city of Clinton, in Custer county, Okla., on the south side of highway 66; the officers searched the lands near his filling station and from a distance of 125 to 200 yards from the filling station found 120 pints of bonded whisky, and 3 pints of wha.t they describe as moonshine or bootleg whisky; the state also introduced evidence to show the defendant had sold whisky in 1933, and as late as January 30, 1935, which was about eleven or twelve days prior to the day of the search. '

The testimony of the defendant was that the whisky found was not his, and that he did not know who had buried the whisky where it was found.

Several errors have been assigned by the defendant, but the only error-deemed necessai*y to consider is, the court erred in admitting testimony of previous sales of whisky prior to the date the defendant is charged with haying possession of the whisky. .The sale of whisky in the summer of 1933 was- too remote, but the sale in January, 1935,' only a few days before the whisky was found in the defendant’s possession was competent, and the court properly admitted that evidence. The facts as - presented by the record show conclusively that the defendant was in possession "of the whisky found,- notwithstanding his positive denial, and the testimony is amply sufficient to sustain the conviction.

The error of the. court in admitting evidence of a sale in 1933', in view of. the record in this case, is not sufficient to Avarrant a reversal. The defendant had a fair and impartial trial. There is sufficient evidence to warrant a conviction.

■ The judgment is affirmed.

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


text:
    LESTER JAMISON et al. v. STATE.
    No. A-8972.
    March 27, 1936.
    (56 Pac. [2d] 905.)
    Utterback, Stinson & Utterback, for appellants.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellants, Lester Jamison and Boots Jamison, were jointly charged, tried, and convicted in the district court of Bryan county of the crime of larceny of livestock. The charge was the larceny of one roan heifer and one red cow, the property of S. K. McManus, and it was alleged to have been committed in said county on or about the 5th day of May, 1934. A trial was had May 23,1935, resulting in a verdict finding the defendants guilty as charged in the information, but the jury were unable to agree upon the punishment. Motion for new trial was duly filed, overruled, exceptions saved, and on May 25, 1935, the court pronounced judgment and sentenced each defendant to confinement in the penitentiary for a term of two years.

The errors assigned are that the verdict of the jury is not supported by the evidence and is contrary to law, and that the court erred in overruling the motion for a directed verdict of acquittal.

S. K. McManus testified:

“I live at Utica, engaged in farming and stock raising, I am the owner of the cow and heifer described in the information. In the fall of 1935, I had them on the Star place, seven miles southwest of Utica; at that time I lost 23 head, including this red cow and this roan heifer; I missed them in December, and found them in Lester Jamison’s pasture May 27, 1934; my brand is (K); each had my brand on the left foreshoulder; the cow had smooth horns; when I found them the cow had been dehorned; the brand was changed to an E; it had been rerun and the hide was coming off; the brand on the heifer was in the same shape; I found the cattle in Lester Jamison’s pasture, which is about a mile and half from where the cattle had disappeared; the heifer had her horns cut off the same as the red cow.”

That he never did consent to the removal of the cow and heifer from his pasture, or consent to have them placed in any other person’s possession.

Newt Eubanks testified:

“I live down close to Utica; I first saw these two animals in my pasture winter of 1933. They stayed in my pasture until about the 15th of April; they were each branded a K on the left shoulder; the cow had nice horns and the heifer had horns an inch and a half or two inches long; they went out of my pasture into Mr. Dollars’ place, and stayed there a day or two; about that time I had a conversation with Boots Jamison at Mr. Dollars’ place; Alberta Scott and W. W. Dollars were present. • Some one asked if we found the owner of the cow. Mr. Dollars said there was some fellow that thought she was his. Boots Jamison and Alberta Scott went to my pasture; they called us and we went down there; they asked us if that was the cow, we told them ‘Yes’; they said, ‘You don’t see no brand on that cow?’ I said, ‘I haven’t noticed the cow to look for the brand,’ and they said, ‘There it is, it is a K.’ I said, ‘Yes, I can see it now.’ Boots said it was McManus’ cow, and I made the remark that I would turn her back out of the pasture; he said, ‘I wouldn’t do it, you leave her in there, because McManus really don’t know- he has got that cow or don’t know nothing about hér, and I would leave her in here.’ He said a man could take the K and make an R out of it and dehorn the cow and' put her in the pasture and keep her Until the hair grew-' over and McManus would never know her.' I said yes that would change her'looks considerably. And Alberta said he wouldn’t do that for eight or' ten of the damned things. I also saw the heifer there at that time; they disappeared that day or the next day. A week or two later' I saw the cow in Luther Jamison’s pasture; he is the father of Lester Jamison and Boots Jamison; at that time the cow had worms in the head; she had been dehorned and the brand, was changed and made an R; it was a fresh rerun brand; the little horns had been cut off the heifer;”

Yogal Eubanks testified :

“This cow and heifer were in our pasture from December up until April of last year; I saw them almost every evening; missed them in April; about the last of April I saw them in Lester Jamison’s pasture; they both had been dehorned; the K brand had been changed to an R and the brands were fresh.”

J. W. Stallings testified that he was a deputy sheriff, had been notified by Mr. Rockley that he had a cow missing and went to Lester Jamison’s pasture either April or May and saw the red cow and the roan heifer.

“I was looking for the Rockley cow; we roped the red cow and she had a K brand on the left shoulder and had horns; later I saw this cow in the same pasture; she had been dehorned and had a fresh brand R.”

On the part of the defendants, J. E. Rockley testified that some time about April 1, 1934, he had a conversation with Lester Jamison. Lester said:

“ ‘There is a cow down there branded R with a bar’; I said, ‘It must be mine then’; I some time put the R on and not put the bar on; I have got an R register. I never did see the cow said to be in dispute until this morning. This cow was dehorned; my cow had a heavier set of horns and I could not tell whether it is my cow or not.”

W. W. Dollars testified:

“I first saw the cow and yearling, involved in this action along after Christmas, they were ip my pasture two or three months, sometime during the month of March or April, Boots Jamison and Alberta Scott came to my house and called me out, I had been talking about who the cow belonged to, and they told me the cow belonged to McManus, and showed me the brand on the cow. The cow had horns and a K brand on the left shoulder. The cow had been coming up regularly every night, but did not come up that night nor the next morning; that day I found the fence torn down in one place.”

The defendant Lester Jamison testified:

“A red cow and a red roan heifer came in my pasture; the cow had her horns off when she came there; I did not change the brand on the cow nor on the yearling; had nothing to do with branding the cow or yearling, in any shape, form, or fashion; they were in the condition when I first saw them. The cow came np late one evening with my milk cow and one of Mr. McManus’ Jersey steers. I went to Albany to have a hog contract fixed up. I asked Mr. Stallings about fixing up my papers, and asked him where was Mr. Rockley, he said, ‘In the shop.’ I called Mr. Rockley out and said, ‘I got one of your cows and a yearling up in my pasture.’ He said, ‘What description?’ I said, ‘Red cow.’ He says, ‘I have got one gone, about how large is the calf?’ I told him. He says, ‘I guess they are mine, I thought she got drowned.’ I said, ‘There is one up there, I don’t know whose it is, I thought it was yours and your brand on it.’ He says, ‘I will come up and see about it.’ A couple of weeks later he with Mr. Stallings came up there; I was not there; I never did claim ownership of the cow or the yearling.”

Cross-examination he was asked: “Did you and Alberta Scott and Boots take the cow out and doctor her for screw worms?” And answered: “A. No, sir, I doctored her head wrhen she came in my pasture.”

Boots Jamison testified:

“I had a talk on the 15th day of April, 1934', with Mr. Eubanks and Mr. Dollars, Alberta Scott was there, I did not make any statement to Mr. Eubanks or Mr. Dollars about changing, running, or altering the brand on that cow or the yearling. Alberta Scott had some hogs gone and asked me to go to1 Mr. Dollars’ place with him to see about the hogs, we went down by the pasture, there stood this cow, I noticed this K brand, I knew the cow, because I had milked her a year before that; McManus had turned this cow over to me to milk. I hollered to Mr. Dollars and he and Eubanks came down. I said, ‘Don’t you see this K there?’ he said, ‘Yes, I do now.’ I said, ‘This is Sede McManus’ cow.’ He said, ‘If you see Sede tell him she is here.’ ”

On cross-examination lie stated:

“I saw the cow in Lester’s pasture after it was de-horned and the brand changed. I did not tell Lester whose cow it was. I did not know whose it was; she came up with my milk cow; I noticed she had worms in her head and I doctored her, but I did not recognize her that time.”

In rebuttal, S. K. McManus testified that he never did at any time let Boots Jamison have this red cow to milk; that a year before he bought this cow and calf he let Boots Jamison have a brown muley Jersey cow to milk.

The record shows that when the state rested the defendants interposed a demurrer to the evidence for the reason that the same fails to sustain the allegations of the information.

At the close of all the evidence, counsel for the defendants moved the court to direct the jury to return a verdict of acquittal for the reason that the evidence is insufficient to sustain the allegations of the information.

It is earnestly insisted by counsel for appellants, who, by the way, did not participate in the trial of this case in the court below, that the evidence is insufficient to show a felonious taking of the livestock in question with a felonious intent to deprive the owner of the same and to convert the same to the taker’s own use. That the only incriminating circumstances against the defendant Lester Jamison was the fact that the stolen cattle were found in his pasture, and that the only incriminating evidence against the defendant Boots Jamison was that he had remarked that the brands on the cow and the heifer which were stolen could easily be changed and the horns removed, then it would be difficult for the owner, S. K. McManus, to recognize them.

On the part of the state, it is insisted that the incriminating facts and circumstances, together with the inferences logically following therefrom, are incapable of explanation consistent with the innocence of either defendant.

The evidence upon which the defendants were convicted was of an entirely circumstantial nature. We think that it -was clearly a question of fact for the jury to determine whether these animals were stolen from the Dollars’ pasture and taken into the Jamison pasture and there dehorned and the brands altered in such a way as to amount to an effort to destroy the identity of the cattle as those belonging to S. K. McManus. All of this was done without the knowledge or consent of the rightful owner of the property. It also appears that no effort was made to notify said owner of the fact that his cow and heifer were in the Jamison pasture.

Where the evidence is circumstantial, and the circumstances are such as to reasonably justify the inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence obviously does not warrant the inference of guilt that this court will interfere. Otherwise the weight of cir-cumstancial evidence, and the inferences to be drawn from it, in almost every case, would finally be determined by the appellate court. We think a verdict of a jury based upon circumstantial evidence comes to us as any other verdict, and unless we can say that the inference of guilt drawn from the evidence is wholly unwarranted, we cannot interfere. Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655.

This court has repeatedly held that all that is required of the appellate court in determining the sufficiency of the evidence to support a conviction is to find that there is evidence in the record which forms a sufficient basis for the verdict of the jury. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Spears v. State, 46 Okla. Cr. 278, 287 Pac. 1060; Singleton v. State, 48 Okla. Cr. 276, 291 Pac. 145.

No objection was made or exception taken to any of the instructions given by the court. Taken as a whole, the instructions correctly cover every phase of the case presented by the facts and circumstances in evidence.

There being no reversible error, the judgment of the lower court is affirmed.

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


text:
    F. E. BELT v. STATE.
    No. A-8998.
    March 27, 1936.
    (56 Pac. [2d] 910.)

      L. A. Pelley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the larceny of 2,800 pounds of cotton seed, of the value of $56.25, was tried and convicted of grand larceny, and his punishment assessed at confinement in the state penitentiary for a term of two years. Motion for new trial Avas filed, considered, and overruled, and the defendant has appealed to this court.

Joe Wheeless testified he lived at 1106 North Lee, Altus, Okla.; he was farming land eight miles north and three miles west of Altus; on the night of November 27, 1934, he missed between 50 and 60 sacks of cotton seed from his barn on the farm; he was in the barn on the 27th and the seed were there, and when he returned on the 28th they were gone. Mr. Wheeless had a negro on the farm by the name of E. J. Butler to take care of the stock; on the night the cotton seed was stolen a number of negroes were back and forth from the Wheeless farm to town and to the home of the defendant, F. E. Belt.

Joe Anderson, commonly known as Slick, after having pleaded guilty to the charge, testified for the state, and said a number of negroes had gone to the Wheeless home and then back and forth to town and back to the defendant’s. The defendant was asked by one of them if he would buy cotton seed, that they could take a truck and get them. On the morning of the 28th the defendant hauled a load of cotton seed to town and sold them to the Altus Cotton Oil Company, and received a check for $56.32; he cashed the check, and, when he returned home, he gave each of the negro men $9 and kept the remainder of the money received from the check; he said he had sold his own seed saved for planting.

Evidence was offered showing witnesses went to the barn of Wheeless, from which the cotton seed was taken, and examined the tracks of the truck, and came to defendant’s barn and examined the casings on his truck, and they were apparently the same tracks as the tracks on the Wheeless place.

When the defendant was arrested, he had about $100 in his pocketbook, and gave an order to the sheriff for the money he had received on the check to return the same to the party who cashed the check.

The defendant, testifying in his own behalf, stated:

“I live one mile north of Olustee, and have lived there for 33 years; I farm 240 acres of land; I did not furnish a truck to the negro Joe Anderson, commonly called Slick, to go to the Wheeless place to steal the cotton seed, nor did I consent to sell the seed, or to aid or abet them, in stealing the cotton seed; I had cotton seed out at my place; I sold cotton seed on the 28th day of November, 1934, to the Cotton Oil Mill Company; I sold 2,540 or 2,560 pounds, I forgot which; I had sold them cotton seed prior to that time; I know nothing about the theft of the cotton seed from Joe Wheeless.”

On cross-examination defendant stated in 1934 he had 34 acres in cotton.

“The last fall I gathered one bale; on the 27th of November, 1934, I was playing dominoes with Slick, Joe Ingram, and the Wheeless negro; they said nothing to me about any cotton seed. My truck was in my barn on the night it was alleged the seed were taken, and was not out that night; I found some two or three chickens on my place that day that did not belong there. When E. J. Butler and Pinkie Belle returned to my place, the boys that were playing dominoes had gone out to try and find my cows that had gotten out. I caught the seed from six bales of cotton in 1933, and they run from 900 to 1,100 pounds to .the bale. My seed was in the west bin of my barn; I took all the seed out of thej barn.”

Tom Morris testified on behalf of the defendant that he had raised cotton every year since he had been on the farm; in 1933 he sold him seed from three bales of cotton; Mr. Belt worked in gins at Olustee: “Yes, I have been a friend of Mr. Belts for a long time.”

Jim Howard testified he was acquainted with Mr. Belt; “he was a farmer; he had cotton ginned at my gin in 1933; he took the seed from three bales out of his own cotton.”

F. E. Belt was recalled and stated he got seed from three bales of cotton he traded for from Tom Moore, which made the seed from six bales of cotton he had taken home. Tom Moore corroborated Belt as to the purchase of the seed from three bales of cotton from him.

The defendant has assigned seven errors alleged to have been committed by the trial court. The first assignment of error* is, the court erred in overruling, the motion of the plaintiff in error for a new trial. This assignment embraces all the questions raised and discussed by the defendant. It is first insisted by the defendant that the court erred in overruling his demurrer to the information. With this contention we cannot agree. The information charges the defendant with larceny in clear and concise language sufficient to advise the defendant of the charge against him, and the court did not err in overruling his demurrer to the information.

The defendant in his argument discusses at length the question of the failure of the state to corroborate the testimony of the negro, Joe or Slick Anderson, who testified to the taking of the cotton seed from the Wheeless farm in the defendant’s truck to the home of the defendant. Anderson was an accomplice of the defendant if the defendant is guilty, and the court so instructed the jury. The question then to be determined is, Is there any competent testimony independent of the fact that a crime was committed to connect the defendant with the taking of the cotton seed? Two or more witnesses testify they went to the barn of Wheeless, from which the cotton seed were taken, and there examined the tracks of the car or truck, and then came to the home of the defendant, and the truck of the defendant was in the barn with casings upon it with the same tread or tracks they had seen near the Wheeless place. It is admitted by the defendant that the negro Slick and other negroes were at his house the night it is alleged the seed were taken, and that the defendant the next morning drove to the cotton seed mill and sold about 2,560 pounds, receiving therefor the sum of $56.32. The court in its instruction in part advised the jury:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. That such corroborating evidence may be circumstantial, and it is not necessary that the required corroborating evidence cover every material point testified to by the said Joe Anderson, and it is sufficient if you find that the evidence of the witness Joe Anderson is corroborated in some material point which show's the connection of the defendant with the commission of the offense.”

In Bond v. State, 54 Okla. Cr. 39, 14 Pac. (2d) 425, this court said:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will wai’rant, and, if it can say that there is corroborating evidence tending to connect defendant with the commission of the offense, it will uphold the verdict.”

Every circumstance and every fact from the time the negroes were at the house of the defendant the night of the alleged larceny of the cotton seed, up to and including the time of the defendant’s arrest, corroborates the negro Slick as to the part the defendant took in the larceny of the cottton seed. The testimony of the witness who examined the tracks of the truck and examined the surroundings at the defendant’s bam all tend to connect the defendant with participating in the taking of the cotton seed, and followed up to the sale of the cotton seed the following morning at the cotton seed mill. There is sufficient corroboration of the accomplice’s testimony. Bond v. State, supra, and authorities therein cited.

It is next urged by the defendant that the testimony is insufficient to sustain a conviction. Section 3062, O. S. 1931, reads as follows:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

This court has repeatedly held that the jury is the exclusive judge of the weight of the evidence, and, if there is a clear conflict in the evidence, or if it is such that different inferences can be properly drawn from it, this determination will not be interfered with unless it is clearly against the evidence or appears to have been influenced by passion or prejudice. In this case there is nothing in the record to indicate that the verdict was influenced by passion or prejudice. There is a direct conflict in the evidence in this case which is a question for the jury to determine. Under the proper instructions of the law in this case the jury found against the defendant, and following the former rulings of this court the verdict will be sustained. Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law covering all the facts in the case. There is no legal reason given by the defendant in this case why the court should set aside the verdict of the jury based upon the testimony contained in the record. The defendant’s conduct the night the seed were stolen, before they were stolen, and the next morning has been carefully studied and considered, and this court is compelled to say that there is sufficient testimony in the record to sustain the conviction of the jury and that there is no error in the record sufficient to warrant the court in reversing the case.

The judgment is affirmed.

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


author: PER CURIAM.

text:
    TONY MANEROS v. STATE.
    No. A-9020.
    April 3, 1936.
    (56 Pac. [2d] 422.)
    Tant & Estes and Gordon Johnston, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the court of common pleas, Oklahoma county, of maintaining a place where intoxicating liquors were sold, and was sentenced to pay a fine of $75 and to serve a term of 30 days in the county jail. The evidence is that defendant had a place of business on North Fiftieth street known as “Al & Tony’s Nite Club.” It had the reputation of being a place where intoxicating liquor was sold. Certain officers sent an informer into the place with some marked money to' buy whisky. He bought it and returned, and the officers then arrested defendant and found the marked money on his person, and he admitted to them he sold the whisky to the informer and also delivered to them other whisky which he had there. Defendant did not take the stand and offered no testimony. There is no merit in the appeal.

The case is affirmed.


text:
    MACK LEWIS v. STATE.
    No. A-9009.
    April 3, 1936.
    (56 Pac. [2d] 425.)
    Robert Crockett and W. L. Ratliff, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged with the crime of murder, tried and. convicted of manslaughter in the first degree, and sentenced to serve a term of 15 years in the state penitentiary, and appeals.

The testimony on behalf of the state shows that on the 25th day of April, 1933, the deceased Arley or Billie Rowe, Dewey or Speck Rowe, Chester Niblett, and J. L. Patrick had been fishing on Rock creek, a stream about a quarter of a mile west of the Mack Lewis place; about 4 or 4:30 in the afternoon a cloud came up and it looked very much like there would be a heavy rain, and all parties started toward the Mack Lewis home; before they reached the house they found a keg or container with about four gallons of mash or beer in the making; they took the container and carried it to the house and told the defendant what they had. It is further shown that the defendant invited the parties into the house, and told them to bring the beer in; the beer was taken into the house. There was present the defendant, his wife Ora Lewis, his stepdaughter Minnie Bell Lewis, and a young man by the name of Willie Keel or Cooper, and the defendant’s minor children.

It is further shown the defendant got mad at the Rowe boys, got his .22 target rifle, and shot Arley or Billie Rowe while in the house. Rowe ran out of the door, and the defendant followed him and shot him the second time. The body of young Rowe was discovered about halfway from the Mack Lewis house to the road in front of the house. There were two bullet holes in his body, one in his right side, and the other in his head close to his left ear.

J. L. Patrick, who was present in the house when the trouble began, testified for the state, in substance:

“I went to the home of the defendant with the deceased, and before any trouble, took place he was in the main room three or four feet inside the door going, out of the dining room; Billie or Arley, Mack, Chester and myself were in the room at the time the shooting took place; Mack was in the dining room, his wife was also there; when he came into the big room he did not say anything, he just fired; I was sitting right here (indicating) ; I looked around; he shot from his hip, did not take aim; Billie was not doing anything at the time, he was kindly facing Mack, the defendant; the deceased whirled and fell, his hands out through the door and his feet towards the middle of the room; he made one or two steps on his hands and feet kindly, and then came up as he was going off the east porch; the defendant backed back toward the kitchen and then whipped through the door and went in the same direction the deceased had gone; I did not hear any of the shooting on the outside of the house ; the deceased did not have a knife in his hand, nor did he make any threats of any kind against the defendant. If he made any improper suggestions or threats against any member of the defendant’s family I did not hear it; I saw nothing out of the way; I did not see him at any time put his hands on either Mrs. Lewis or the step-daughter; when the defendant went out of the room going in the same direction the deceased had gone he had the target gun with him; the Indian boy and I remained in the room; when Mack came back in the house he gobbled, and asked his wife for his shot gun. I am not a relative of either of the parties.”

Other witnesses in substance corroborated the testimony of the witness Patrick as to what took place in the house before the shot was fired. There is a conflict in the testimony from the time the deceased and other parties went to the home of the defendant up until the time the shooting took place. The state’s witnesses claim the defendant invited the deceased and other parties to come in, and to bring the beer. The defendant and his witnesses testifying he told them to come in and warm and dry their clothes but to leave the beer outside; that his wife did not want it brought in as there was a couple of the children sick; the beer was taken into the house, and the state witnesses drank the beer, and defendant admits he drank one cup of the beer.

The defendant contends he shot in self-defense because the deceased had insulted his wife and stepdaughter by attempting to kiss and hug them; that the deceased had drawn a knife and was coming toward him when the first shot was fired.

Willie Keel or Cooper, testifying for the defendant, made the following statement:

“The defendant had a gun that looked like this one; I think he got it out of the closet; I first saw the gun when he got it and shot; he told the boys to' get out of the house and they kept cussing; they called him a black s— of a b-; he said, T don’t want to have any trouble, boys, get out, this is my home and I have the right to protect it’; the boys cursed him; he pulled his gun and shot; just before Mack shot Arley Rowe he had a knife in his hand and was going toward Mack; there was a sofa or day bed between the deceased and the defendant; when the defendant fired Arley or Billie Rowe just kindly staggered back, he was close to' the door when he was shot; when the first shot was fired Billie fell and I left; when he started to get up again he came toward Mack, I mean he turned when he got up and coming back toward Mack, they were going for each other, that is all I know; I guess Mack reloaded the gun; the sofa or day bed was between the deceased and Mack; I did not hear the second shot; I don’t know whether it was fired in the house or on the outside.”

The testimony on behalf of the defendant by Willie Keel, his wife Ora Lewis, and his step-daughter Minnie Bell Lewis show the deceased attempted to hug and kiss them, and the defendant tried to make him leave the house, and the deceased refused to do so, and the defendant says the deceased called him a black s— of a b — ■—, and started coming toward him with a knife; he grabbed his target out of the closet and fired, and the deceased kind of fell out toward the door', got up and came toward him, and he fired a second shot.

The defendant admits there was a sofa or day bed between him and the deceased at the time the shot was fired. The testimony of the officers, and those who examined the scene of the trouble, and the clothes deceased was wearing, -show conclusively that the deceased did not have a knife on his person, and none was found in the house or along, the line traveled from the time he left the house until he fell. There is a sharp conflict in the testimony of the state and the defendant.

The defendant has assigned as errors: The court erred in overruling his motion for a new trial; the verdict of the jury is contrary to the evidence and the law; the verdict of the jury is excessive, and is the result of passion or prejudice. The defendant in his brief presents only one question, that the verdict is contrary to the evidence and is not supported by the evidence; that the verdict is excessive. No authorities are cited by the defendant in support of his contentions. The only question left for this court to consider is the question: Is the evidence sufficient to sustain a verdict of guilty?

The jury in considering the evidence in this case, under' the instructions of the court, by its verdict clearly shows that there was no bias or prejudice against the defendant. If, it believed the evidence of the state, it would have returned a verdict of guilty of murder. On the other hand, if it believed the evidence of the defendant} it was a ease of self-defense. The record discloses that an effort was made to invoke the unwritten law, and that the killing was in defense of the wife and daughter of the- defendant. It is admitted that the defendant had a right to protect his home and his family against any insults that may be offered them, or any improper conduct indulged in by the parties in his home. If while in the home of the defendant the deceased by any act of his angered the defendant, or insulted any member of his family, the defendant would have the right to compel him to leave his home and would be justified in using such force as was necessary to compel the deceased to leave his home.

If the deceased had a knife, as claimed by the defendant, and was advancing on the defendant, he would be justified in protecting himself against such assault and to use such force as seemed necessary to him, from his standpoint, to prevent the deceased from doing him some great bodily harm or taking his life.

The legal rights of the defendant were properly presented to the jury in the court’s instructions, and no exceptions were taken by the defendant. The conflict in the evidence in this case was a question for the jury, and this court has repeatedly held that in considering the sufficiency of the evidence the functions of this court are limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude the accused is guilty as charged and sufficient to support the verdict. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115; Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660; Dixon v. State, 46 Okla. Cr. 25, 288 Pac. 357; Andres v. State, 51 Okla. Cr. 229, 1 Pac. (2d) 178.

There is no legal reason given by the defendant in this case why the court should set aside the verdict of the jury based upon the instructions of the court, and the testimony contained in the record. The evidence is sufficient to sustain the conviction. The defendant has failed to point out any error of the court sufficient to warrant this court in reversing the ease.

The judgment is affirmed.

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


author: EDWARDS, P. J.

text:
    W. F. SMITH v. STATE.
    No. A-9002.
    April 3, 1936.
    (56 Pac. [2d] 429.)
    O. S. Shaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $350 and to serve a term of 4 months in the county jail.

At the time charged defendant and his wife resided in Boise City. Defendant, with four other persons, was in the basement of the residence in a gambling game, drinking intoxicating liquor, noisy and boisterous, and some of the party intoxicated. The wife called the sheriff and asked that some one come to the residence to stop the gambling and disturbance. A deputy sheriff went to the place, was admitted, and was directed to the basement by the wife. As the officers entered, some five or six persons, including defendant, “Mexican Pete,” “Ken-tuck,” et al., were in a card game with money on the table before them. Several of the party escaped, but the officer arrested defendant, took him to the jail, and returned directly to the place of arrest to search for gambling paraphernalia, at which time the wife of defendant delivered to the officer 15 pints of whisky, the possession of which forms the basis for, this charge. Defendant testified that, when the officer came, those present were in a card game, but stated he did not “see” any money on the table. He admitted they had whisky there, were drinking, and that some of them were more or less intoxicated. He denied the 15 pints of whisky belonged to him, but stated it belonged to one Yerner who had, a room there.

The contention is made that the arrest without a warrant was in violation of article 2, § 80, Const., which forbids unreasonable searches, and that the search made as an incident thereto was unlawful and the admitting in evidence of the liquor obtained was error. The playing of cards for money is a misdemeanor. Article 52, c. 15, O. S. 1981. The arrest by an officer of one whom he discovers participating in gambling is lawful. But, if the invasion of the home by the officer was a trespass, then the arrest of defendant as an incident to such trespass was unlawful .and the search without a warrant unlawful, since in such case a search can only be justified' as an incident to a lawful arrest. Wallace v. State, 49 Okla. Cr. 281, 294 Pac. 198; McDonald v. State, 53 Okla. Cr. 443, 13 Pac. (2d) 213; Thomas v. State, 54 Okla. Cr. 36, 14 Pac. (2d) 430. Also the wife could not waive the consti1 tutional right of the husband against an unreasonable search. Jones v. State, 38 Okla. Cr. 251, 260 Pac. 89.

As a general rule, the husband is the head of the family, and an entrance to the home can lawfully be made only with his consent or waiver. Formerly this rule was more strict than under the modem doctrine, which has extended the rights of the wife until the authority and privileges of husband and wife, with some exceptions, are equal. It cannot now be contended that the wife has no voice in the control of the home. She may insist that the home shall not be made the rendezvous of disreputable characters nor her living therein made intolerable by carrying on therein any unlawful enterprise, and, if such is done, even by the husband, she has a right to complain, and her rights to a quiet and peaceable enjoyment will be protected. The conducting of a gambling game, the excessive use of intoxicants, and loud and disorderly conduct in the home, which under the conditions shown by the evidence amounted to a breach of the peace, was such a violation of law as justified the calling, of a peace officer by the wife, and his entry of the home at her request was not unlawful. This is not in conflict with the holding in Noble v. State, 44 Okla. Cr. 214, 280 Pac. 476, wherein a search of the home was sought to be justified by reason of a telephone call of some unknown third person. The officer making the arrest had a right to search the person arrested and his immediate surroundings as an incident to the arrest. He was not required to make the search forthwith, but could take his prisoner-to a place of safety and without delay return and' make search. Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787.

Complaint is made that a statement of the wife was used against the husband in violation of section 3069, Okla. St. 1931, under which either spouse is incompetent as a witness against the other except for offenses by one against the person of the other. Seigler v. State, 54 Okla. Cr. 141, 15 Pac. (2d) 1048.

In the instant case the wife was called as a witness for defendant; on cross-examination, which was directed to matters testified to by her in chief, she made damaging admissions, but, since she was subject to cross-examination the same as other witnesses, this was admissible. The state in its case in chief sought to keep out any reference to the wife or any statement made by her; any mention of her was promptly excluded by the court. On this point was no material error.

On consideration of the entire record, we are satisfied defendant is guilty and that he had a fair trial, but we are of the opinion the punishment is excessive under all the circumstances. The judgment is modified to a fine of $50 and costs and to imprisonment for 30 days.

As modified, the case is affirmed.

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


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    D. J. HENDERSON v. STATE.
    No. A-8924.
    April 4, 1936.
    (56 Pac. [2d] 915.)

      J. W. Clark, for. plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen (I. L. Cook and Rowe Cook, of counsel), for the State.
   DOYLE, J.

(after stating the facts). Appellant, D. J. Henderson, was convicted of manslaughter in the first degree, and in pursuance of the verdict of the jury was sentenced to 99 years’ imprisonment in the state penitentiary. In this case there is no controversy about the fact of the killing. Appellant testified in his own behalf on the trial and admitted the killing, and undertook to justify it upon the plea of self-defense.

The assignments of error are based upon certain rulings of the court in the admission and the rejection of evidence.

The rulings of the trial court upon the admission of evidence were more than fair to the defendant, and we find few assignments meriting consideration.

Considering the assignments in the order in which they appear in the record, the first is based upon the action of the court in permitting the witness Sam Howard to testify as to the condition of the ground near where the body was found.

The record shows that several witnesses, some on the part of the state and some on the part of the defendant, testified as to the condition of the ground on the highway and inside the fence where the body was found, and the defendant testified that there was a struggle between him and the deceased at this point, but, regardless of that, there can be no doubt but that it is competent for the persons first appearing at the scene of the crime to describe the surrounding conditions, and such testimony is not inadmissible as opinion testimony, but as showing, or tending to show, physical facts, and is always competent and admissible for that purpose.

Complaint is made of testimony being admitted as to the prior relationship as to friendliness or enmity between the deceased and the defendant.

The defendant testified that some time prior to this tragedy the deceased had threatened his life, and the defendant’s witness Buck Reid testified that he overheard the deceased make a threat against the life of the defendant; therefore one of the issues in the case became and was the previous relations existing between the deceased and the defendant, in explanation of their conduct and motives, and the testimony showing such relations was competent. In every instance the trial court required the state to show that the witness testifying, had some knowledge of the relations existing between the two before allowing the state’s witness to testify as to whether or not the relationship was friendly.

Complaint is also made of the following questions asked the defendant’s character witness Gr. M. Taylor on cross-examination:

“Q. Did. you know Mr. Walter Jarnagan? A. I know him when I see him. Q. Did you ever hear of his being robbed down there — either one of the Jarnagan boys? Mr. Linebaugh: We object, Your Honor, that is highly prejudicial and we now move the court to declare a mistrial and discharge the jury. The Court: I will sustain the objection as to the question and overrule you as to the mistrial. Mr. Linebaugh: We except and ask the court to instruct the jury to disregard the question. The Court: At this time I admonish you, gentlemen of the jury, to pay no attention to the question asked the last witness about a man named Jarnagan being robbed, that has nothing to do with this case and I do not want you to take it into consideration in summing up the evidence in arriving at a verdict.”

It is urged that, even though the defendant’s objection to the last questiou was sustained, it brought into the record prejudicial error.

We think this contention is not only without merit, but under a well-settled rule the court erred in sustaining the defendant’s objection.

In the case of Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271, this court held:

“As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of such witness to show the sources of his information and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.” And see Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242.

In the case of Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797, this court held:

“On cross-examination of witnesses as to defendant’s character and reputation as a peaceable and law-abiding citizen, it is proper to inquire as to knowledge of alleged acts of violence committed by the defendant at various times prior to the time of the killing on others than the deceased.” Teel v. State, 53 Okla. Cr. 200, 11 Pac. (2d) 197.

The defendant further complains that prejudicial error was committed by allowing on rebuttal the witness Jackson to testify relative to the defendant stealing "some shirts, and trading them for whisky at the OOO camp.

The record shows that, before the testimony complained of was admitted, Buster Slack had testified that he was in the COO camp with the defendant for about 5 or 6 months, and the the defendant’s reputation in the camp as a law-abiding citizen was good.

The question presented is, Does this testimony come within any of the well-known exceptions to the general rule in criminal cases that, when a defendant is put upon trial for one offense, he is to be convicted, if a.t all, by evidence which shows he is guilty of that offense alone? This rule is tersely stated by Mr. Bishop, who says:

“The state cannot prove against a defendant any crime not alleged, either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the one charged, even though he has put his character in issue.” 2 Bishop’s New Crim. Proc. § 1120.

See Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383.

In the numerous cases cited by counsel for appellant, where, the fundamental rule of evidence of another crime being inadmissible is applied, we find the prosecution was relying upon evidence of similar crimes in its case in chief to obtain a conviction. In this case it is evident that the only purpose of the state in offering the testimony complained of was to impeach the credibility of the witnesses who had testified as to the good character and reputation of the defendant at the CCC camp.

A defendant in a criminal case is entitled to the privilege of putting his character in issue, and his good character or general reputation as to the trait involved in' the charge against him is always admissible in his favor as tending to show the improbability of his committing the offense charged, and, where a defendant offers testimony to show his previous good character, the state may in rebuttal offer evidence of his bad character. Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212; Alexander v. State, 35 Okla. Cr. 89, 248 Pac. 873.

The instructions given by the court to which no objection was made nor exception taken submitted the issue of murder under the first subdivision of section 2216, St. 1931, but did not submit the issue of murder under subdivision S’, which provides homicide is murder “when perpetrated without any design to effect death by a person engaged in the commission of any felony.”

By numerous decisions of this court it is held, where an information charges murder under the first subdivision of section 2216, St. 1931, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, a conviction, if warranted by evidence, may be had under either of the other subdivisions of said statute. Evinger v. State, 57 Okla. Cr. 63, 45 Pac. (2d) 552.

It appears from the record that it was the theory of the state that this homicide was committed in the perpetration of a robbery, and there is ample proof of circumstances from which a reasonable and logical inference arises that the defendant committed the homicide for the purpose of robbing the deceased of his money and his automobile. However, the record shows that no request was made on the part of the state for instructions to the jury upon that theory.

Counsel for the defendant states in his brief that, if the defendant was to be convicted, he should have been convicted of murder, or the jury should have turned him loose; however, no objection was made or exception taken to the instructions submitting the issue of manslaughter-in the first degree.

Where one has taken a human life the law does not presume the homicide was justified, but presumes the contrary.

After a most careful review of the record, we have been unable to discover any prejudicial error.

As to the self-defense theory, the physical facts conclusively show that the testimony of the defendant is wholly incredible. The failure of the defendant to do the things that would ordinarily have been done under such circumstances by an innocent person, and his failure to deny any of the incriminating facts proved against him, point unerringly to his guilt. The defendant was convicted only of manslaughter in the first degree. As we view the record, his youth and the humanities of the law are all that saved him from a conviction of murder. It follows that the judgment of the lower court should be affirmed, and it is so ordered.

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


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    SAM SEALY et al. v. STATE.
    No. A-9006.
    April 10, 1936.
    (56 Pac. [2d] 903.)
    C. T. Huddleston and Date Crawford, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were tried and convicted upon a charge of grand larceny of one white steer, the personal property of L. A. Shepeard, and each was sentenced to serve a term of two years in the penitentiary.

The record in this case is very short. After the conviction the defendants filed a motion for a new trial, which motion was argued, considered, and overruled, and defendants duly excepted. The only error that it is necessary for this court to consider is the third assignment, which is as follows: “The said court erred in permitting the jury, after the case has been submitted to them to separate and go home and stay all night, without consent and over the objections of the said plaintiffs in error, and one of the jurors talked about the merits of the case, during said time while said jury was so separated, which was prejudicial to the rights of these plaintiffs in error.”

This question has been before this court so often that it seems needless to cite authorities. The Attorney General in his brief, after citing the fact that the jury was permitted to separate, over the objections of the defendants, after the case was finally submitted to it for a verdict, and before the verdict was returned, makes the following confession:

“The Attorney General is of the opinion that under the former decisions of this court he is impelled to confess error in this case because of the separation of the jury after the case was submitted to the jury for deliberation upon a verdict. It seems to be immaterial as to- whether objection is made or exceptions taken to such a separation, as under the opinions of this court it is held that the statute prohibits a separation after the cause is submitted and proof of any such separation alone is presumptive evidence of prejudice to the defendant and the burden is upon the state where a separation is shown under such circumstances to show that although this statute was violated no prejudice occurred to the defendant. In this case the state made no effort to make such a showing and the fact of separation is admitted.” Crow v. State, 39 Okla, Cr. 145, 263 Pac. 677; Chance v. State, 5 Okla. Cr. 194, 113 Pac. 996; Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557; Goins v. State, 9 Okla. Cr. 35, 130 Pac. 513; Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163.

Following the foregoing line of decisions cited, which opinions were rendered long before the trial of this case, it was certainly the duty of the trial judge in the first instance, not to permit a separation of the jury after the case had been submitted to it; and after the separation was permitted, the counsel for the defendants were contending for a new trial on the ground, in view of the decisions of this court, the trial court should have required the state to mate an. affirmative showing that no prejudice occurred, or else granted a new trial.

This court feels that it is its duty to adhere to the former rulings of this court, and approve the confession of error suggested by the Attorney General.

. For the error herein stated, and discussed, the judgment is reversed and remanded.

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


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    MRS. WILLIAM MOSIER v. STATE.
    No. A-9051.
    April 10, 1936.
    (56 Pac. [2d] 908.)

      Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was by information charged with selling two pints of whisky to Mrs. Harvey, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for forty days. Motion for new trial was filed, considered, overruled, and defendant, by petition in error, with case-made attached, appeals to this court to reverse the judgment.

The testimony of the state shows the officers went out to Mrs. Harvey’s place, who lived near the defendant, and made some kind of a trade with Mrs. Harvey to go down and see if she could buy some whisky from the defendant.

W. E. Agee testified Mrs. Harvey a day prior to that time had reported Mrs. Mosier to the sheriff’s office; the following day he and three other officers went out to the home of Mrs. Harvey and arranged with her to buy whisky from the defendant, and gave Mrs. Harvey a $1 bill with an identification mark on it and sent her to the home of the defendant to buy whisky; he says Mrs. Harvey did not have any whisky when she left them, and, when she came back, she brought two pintsi of whisky and delivered it to the officers. Mr. Agee stated that he, together with some other officers, went to the home of the defendant and went in and asked the defendant, “Where the money was this woman Harvey had. given her for the whisky? She did not say anything, and I went into her purse and found the dollar bill.” When asked by the defendant’s attorney if he had a search warrant for her person, witness replied “No.” Neither of the officers saw the defendant handling any whisky. The state’s witness, Mr. Agee, who claims he marked a dollar bill, together with the other officers, went into the home of the defendant, they had no search warrant to search her person, and there searched the defendant’s purse and claim to have found the bill witness Agee claims he marked and gave to Mrs. Harvey.

Before the case was called for trial the defendant moved to suppress the evidence on the ground that the evidence obtained in this case was obtained in violation of the law and under an unlawful search and seizure. Neither of the officers saw the defendant deliver anything to Mrs. Harvey. In fact, the record shows they were so far away they could not see anything that went on about the premises of the defendant. They had no warrant for the arrest of the defendant or to search her person, and the record shows they went to the home of the defendant and searched her purse and found what they claim to be a bill they had delivered to' Mrs. Harvey.

The question for this court to decide is, Was the search of the defendant’s pocketbook where the officers did not have a warrant for her arrest, had not placed her under arrest, and had not seen her commit any offense in their presence, unlawful? This court, in Crossman v. State, 28 Okla. Cr. 198, 230 Pac. 291, in the second paragraph of the syllabus, said:

“An officer has no more right to search the person of one suspected of the commission of a misdemeanor without a search warrant than he has to search his home.”

In Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631, this court in the sixth paragraph of the syllabus said:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

The court further áaid, in a prosecution for unlawful transportation of intoxicating liquor, defendant cannot be convicted upon evidence obtained by the unlawful search of his person without a warrant for his arrest, and neither the liquor so seized nor the possession thereof so acquired is admissible against him. Levy v. State, 31 Okla. Cr. 199, 238 Pac. 235.

In Helton v. Commonwealth, 195 Ky. 678, 243 S. W. 918, the court stated:

“Under Const. § 10, relative tO' unreasonable searches and seizures, where officers did not know defendant had whisky in his pocket, and it was not open and obvious to one within a reasonable distance that a package carried by him contained whisky, they had no right to arrest and search him without a warrant or search warrant, and the evidence thus found or disclosed was incompetent.”

In Best v. Commonwealth, 207 Ky. 178, 268 S. W. 1089, in the syllabus the court stated:

“An officer under a search warrant authorizing him to search an automobile had no right to search accused while he was not in the automobile, and not its owner, merely because such officer suspected a bulky package in his possession to contain contraband liquor; Acts 1922, c. 33, § 1, not authorizing unreasonable searches and seizures inhibited by Const. § 10.”

In this case it is admitted by the officer that the defendant was not under arrest and that he had no warrant for her arrest, and that he entered into her home and searched her purse without any search warrant for her person. In Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895, this court said:

“In a prosecution for unlawful possession of intoxicating liquor, defendant cannot be convicted on evidence obtained by unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, nor the evidence of the possession thereof so acquired, is admissible against him.”

We have no doubt that the search of the defendant, under the circumstances in the record, is unlawful. Some things are to be more deplored than the unlawful sale of whisky. One is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is more serious to search his person, and whoever accomplishes it must do so in conformity with the laws of our state. There are two reasons for this, one to avoid bloodshed, and the other to preserve the liberty of the citizen.

The fact of the possession of the dollar bill was proven by the forcible and unlawful search of the defendant’s purse to secure a veritable key of the offense. It is fundamental that the defendant may not be searched by the officers, without process, in order to secure testimony against her. It takes no flight of imagination to picture what would happen if other officers clothed with some temporary authority might without restriction or hindrance at their will hold up a citizen on the highway and search him, or enter his home and search his person in an effort to procure evidence against him. It results from what we have said that the action of the deputy sheriff and Ms party was wholly without warrant of law, and the evidence thus found was wholly incompetent against defendant.

We conclude, therefore, that in admitting the evidence of the search of defendant’s purse by the officers without any process and searching the purse of the defendant, who was not under arrest, the court erred. This conclusion renders it unnecessary to consider any of the other questions in the case.

The judgment is reversed.

EDWABDS, P. J., and DOYLE, J., concur.


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    HOY SMITH v. STATE.
    No. A-9000.
    April 10, 1936.
    (56 Pac. [2d] 923.)

      Louie Gossett and T. B. Lunsford, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the .State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Pushmataha county and was sentenced to life imprisonment. ' At the time charged defendant shot and killed one Vada Scroggins. Though the evidence is conflicting on some points, the facts surrounding the killing are about as follows: Scroggins was operating an illicit still, and on the morning of the homicide he made a run of eleven gallons of whisky, ten of which were put in a keg and one in an extra container. Just before defendant came into the scene deceased had hidden the ten-gallon keg some distance from the still. Defendant knew of this still, and with a gun went on horseback near to it, hitched his horse, and, evidently intending to frighten deceased away from the still, he fired his gun and made an outcry as if a raid was being staged. Deceased and two young men named Lawson who were there ran from the still carrying the gallon of whisky. Deceased went to his home about half a mile distant and armed himself with a Winchester rifle and suggested to the Lawsons that there was a shotgun and ammunition in the house if they wanted to go with him, but they did not accept the invitation. He then returned toward the place where the keg of whisky had been hidden and soon two shots were heard. In an hour or so witnesses went to the scene, found the body of deceased holding the rifle and lying face down across it. There is substantial evidence this gun had been recently fired. Death was caused by a bullet wound through the body. Defendant testified that after deceased and the two young men at the still left the scene he went ü> the still and found no one there; that some distance from it he found the keg of whisky; that he picked it up, intending to move it into a thicket, when he was fired at; that he immediately looked around and saw deceased with a gun, as though about to shoot again; that he fired and deceased fell and he immediately left the scene.

Several assignments of error are argued, none of which have any merit except the first, second, and third, which in substance are that the court erred in refusing defendant’s requested instructions covering the law of manslaughter in the first degree and in refusing to instruct on that degree of homicide. The court instructed the law of murder only. He instructed further that there was no evidence showing or tending to show the homicide was manslaughter in either the first or the second degree. The instructions also cover the law of self-defense.

Defendant has sought to show by affidavits of five of the jurors that they would not have returned a verdict finding defendant guilty of murder, if, under the instructions, they could have returned a verdict for a lower degree of homicide. That they agreed to the verdict of murder only because they did not believe defendant should be acquitted. The verdict of the jury cannot be impeached by affidavits of jurors upon any matter inhering in the verdict itself. This is too well settled to call for a citation of authorities.

Murder is defined by section 2216, Qkla. Stat. 1931, which is:

“Homicide is murder in the following cases:
“First. 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.
“Second. 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.
“Third. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

Manslaughter in the first degree is defined by section 2223, Okla. Stat. 1931, which is:

“Homicide is manslaughter in the first degree in the following cases:
“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without á design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

In the trial of a charge of murder, it is the duty of the court to determine, as a matter of law, whether there is any evidence tending to reduce the crime to the lower degrees of homcide, and, if so, to instruct the jury to fix the degree in their verdict. The distinction between murder and manslaughter in the first degree may be extremely difficult. It is sometimes said the distinction is that in murder there is a premeditated design to effect death, while in manslaughter in the first degree there is no premeditated design; tral courts, in their instructions, frequently draw this distinction. The fact of a premeditated design or the lack thereof is not always the test, particularly since the meaning of the word “premeditated” is changed somewhat from that at the common law. Section 2218, Okla. Stat. 1931. Basham v. State, 47 Okla. Cr. 204, 287 Pac. 761. In the second and third subdivisions of section 2216, supra, the manner or circumstances under which the homicide is committed, rather than the fact of premeditation, fixes its status as murder or otherwise. The third subdivision of section 2223, supra, may comprehend a state of facts in which the killing is premeditated as defined by section 2218 and yet the circumstances surrounding the homicide make it manslaughter, instead of murder. Even a justifiable homicide may be premeditated.

Prom its creation this court has uniformly held that in a trial for murder the court must instruct the jury on the law of manslaughter if there is any substantial evidence that the crime charged may have been committed under circumstances which would reduce it from murder to manslaughter, and this duty rests on the court whether requested by defendant or not; that this is to be determined by the trial court from the accusations and the evidence, as a matter of law. Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124; Sherman v. State, 20 Okla. Cr. 306, 202 Pac. 521; Moore v. State, 48 Okla. Cr. 106, 289 Pac. 788. Where there is a reasonable doubt as to' whether the homicide is murder or manslaughter in the first degree, the court should resolve the doubt in favor of the accused and instruct on the law of manslaughter. Section 3091, Okla. Stat. 1931.

In the instant case deceased was engaged in an unlawful business, the manufacturing of whisky; this fact, however, gave defendant no right to commit a larceny of the fruits of this business. In taking- the keg of whisky defendant was guilty of a misdemeanor, but, on the other hand, this fact did not justify deceased in attempting to kill him by shooting. If the matter had been submitted, the jury might have concluded the homicide was com mitted under conditions stated in the second or the third subdivision of section 2223, supra, and was first-degree manslaughter. At the very least, it was doubtful if the crime, arising as it did out of unlawful acts of both the deceased and the defendant, was murder or first-degree manslaughter, and in such state of the record defendant was entitled to have the law applicable to first-degree manslaughter submitted.

For the reasons assigned, the case is reversed.

DAVENPORT and DOYLE, JJ., concur.