author: FURMAN, J.

text:
    STATE ex rel. TUCKER v. DAVIS et al.

    No. A-1678.
    Opinion Filed March 29, 1913.
    (130 Pac. 962.)
    1. WITNESSES — Attorney and Client — Person Confined — Private Consultation — Courts—Duty to Control — Executive Officers, (a) Where a person is confined in jail pending a trial upon a criminal prosecution, he has the right to have an opportunity to consult freely with his counsel without having any person present to hear what passes between them, whose presence is objectionable to such defendant.
    (b) It is the duty of officers having custody of persons charged with the commission of crime to afford them a reasonable opportunity to privately consult their attorneys, and no officer has the right to be present and hear what is said during such consultation; but the officers must taire such precautions as may be necessary, according- to the circumstances of each case, to prevent the escape of such prisoners.
    (c) It is the duty of the trial courts of Oklahoma to make such orders as will secure to every person imprisoned upon an accusation of crime a reasonable opportunity to consult privately and freely with his counsel, without let or hindrance from any sheriff, jailer, or other officer.
    (d) As to just when and where consultations between prisoners and their attorneys may be had will vary with the circumstances of each case, within the discretion of the officer having the custody of such prisoner; but this discretion is subject to the review of the courts, and it must not be arbitrarily used.
    2. CONTEMPT — Courts—Criminal Court of Appeals — Jurisdiction— Powers — Enforcement of Judgment by Executive Officers., (a) The Criminal Court of Appeals is charged with the duty of seeing that we have a uniform system of criminal jurisprudence in Oklahoma, and it is the court of last resort and the supreme arbitrator for the settlement of all questions relating to criminal law in this state.
    (b) The Criminal 'Court of Appeals, independent of authority granted by statute, has the inherent power to enforce obedience .to its orders by contempt proceedings. Such power is essential to the due administration of justice.
    (c) It is the duty of all officers of the state to render unquestioning obedience to the judgments of the courts. If the courts are in error, they alone have the power to correct such errors.
    (Syllabus by the Court.) '
    Contempt proceedings (by the State, on the relation of H. S. Tucker, against Barney Davis and another.
    Judgment for relator.
    Owing to the disposition made of this case, it is not necessary to make more than a condensed statement of the facts involved. II. S. Tucker was confined as a prisoner in the county jail of Custer county, Okla., upon a charge of rape pending against him in the superior court of said county. He presented an application to the Criminal Court of Appeals, in which it appears that, being unable to employ counsel to conduct his de-dense, the judge of said superior court had appointed T. B. Norfleet and P. S. Hillman, members of the Custer county bar, to defend him; that, owing to the gravity of the charge pending against said Tucker, it was necessary that he should have an opportunity to confer privately and fully with his said atT torneys with reference to his defense in this case, but that Barney Davis, sheriff of Custer county, and W. M. Van Bibber, jailer of said county, refused to permit the said Tucker to confer with his said counsel, except in the presence of said sheriff or jailer. It was further made to appear that there was no suitable place in the jail at which a private conference could be had, but -that some room might toe selected in the courthouse, which was adjacent to the jail, in which such private conference could be had. It was further made to appear that Hon. J. W. Lawter, judge of the superior court of Custer county, was absent from the county, and therefore could not afford the relief desired. Upon this showing the 'Criminal Court of Appeals issued an order addressed to said sheriff and said jailer of said Custer county, Okla., ordering and directing that they at any reasonable time, upon the request of his said attorneys of record, should take, said H. S. Tucker from the jail to “some room in the courthouse of said county, to be selected by said officer or officers, and that the said H. S. Tucker be there permitted to-consult privately with said attorneys. A copy of said order was served upon tooth the sheriff and jailer' of said Custer county. It was further made to appear to the court that after service of such order, and in total disobedience thereof, said sheriff and said jailer of Custer county refused to permit the said Tucker to privately consult his said attorneys as directed in said order, although so requested to do. Thereupon a citation was addressed to both of said officers, requiring them to appear before the Criminal Court of Appeals and show what cause, if any, they had for disobeying said order, and why they should not be punished for contempt; The matter coming on to be heard, both of said officers appeared and denied that they had disobeyed the said order of the court. A great deal of testimony was offered by both sides, a detailed statement of which is unnecessary.

      Thomas W. •Conner, P. S. :Hillman, and Thomas B. Nor* fleet, for relator.

      Phillips & Mills and A. O. Cruce, for respondents.
   FURMAN, J.

(after stating the facts as above). First, ft would be a.cheap subterfuge of and shameless mockery upon justice for the state to put a man on trial in its courts charged with an offense which involves his life, liberty, or character, and then place him in such a position that he could not. prepare to make his defense. It would he just as reasonable to place shackles upon a man’s limbs, and then tell him that it is his right and duty to defend himself against an impending physical assault. If the right of defense exists, it includes and carries with it the right of such freedom of action as is essential and necessary to make such defense complete. In fact, there can be no such thing as a legal trial, unless both parties are allowed a reasonable opportunity to prepare to vindicate their rights. This is 'so fundamentally just, and is so highly prized by the people of Oklahoma, that it is embodied, not only in our statute law, but is further safeguarded and rendered inviolate by a number of constitutional provisions. Section 15, Williams’ Const, of Obla., in express terms declares that no person shall be deprived of life, liberty, or property without due process of law. There can be no such thing as due process of law where a party to a case has been deprived of an opportunity to prepare for trial. Section 28, Williams’ Const, of Okla., provides that in all criminal prosecutions the accused shall have a right to a speedy public.trial by an impartial jury of the county in which the crime shall have been committed; that he shall be informed of the nature and cause of the accusation against him and have a copy thereof, and' be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in bis own behalf; and that he shall have the right to be heard .by himself and by counsel.

Due process of law would be a libel on justice if it did not carry with it the absolute right of preparation for trial. The right to be informed of .the nature and cause of the accusation against him, and have a copy thereof, would be only so much idle buffoonery if the accused was not allowed to prepare to defend himself. All of these rights would amount to but little if the accused did not also have the right to be represented by counsel who was learned in the law and trained in the matter of presenting eases in court. These principles are not only embodied in our Constitution, but they or similar provisions will be found in the Constitution of every state of the American Union and also in the Constitution of the United States. They therefore cannot be minimized, but constitute the fundamental and universal principles of American criminal law; and no Legislature or court can ignore or violate them. The absolute right of every defendant in a criminal case to be represented by counsel learned in the law was discussed and recognized by the unanimous decision of this court in the case of Baker v. State, ante, 130 Pac. 820, in an opinion by Judge Doyle, decided at the present term of the court. The right to be heard by counsel would, in the language of Saint Paul, 1 Cor. 13, 1, “become as sounding brass, or a tinkling cymbal,” if it did not include the right to a full and confidential consultation with such counsel, with no other persons present to hear what was said. This is a material, substantial right, essential to justice.

Section 257, Comp. Laws 1909, (Rev. Laws, sec. 244), among other things, provides that it is the duty of an attorney and counselor at law “to maintain inviolate the confidence and at any peril to himself to preserve the secrets of his client.” This is not only the statute law of our state, but it is also a settled principle of the common law. While this rule is rigidly enforced as between client and attorney, yet it does not extend to persons who may hear what passes between clients and their attorneys. If clients disclose secrets to their attorneys in the presence of others, the law closes the mouths of the attorneys, and will not permit them to reveal secrets so disclosed; but no such inhibition is placed by law upon others present who may hear such secrets, unless such other persons are the helpers or assistants of such attorneys. Therefore, if parties in prison and charged with crime are compelled to consult their attorneys in the presence of an officer or officers of the law, the very object and purpose of the Constitution and of the statute would be defeated, because such officer or officers could testify as to any statements passing between such defendants and their attorneys, or could otherwise disclose such secrets against the will and to the injury of such defendant. This alone would render such consultations a miserable and contemptible farce. It therefore necessarily follows that it is the absolute right of parties charged with crime to consult privately with their attorneys, and that it is an illegal abridgment of this right for a sheriff, jailer, or other officer to deny to a defendant the right to consult his attorneys, except in the presence of such officer. We think that this question is too plain for argument, and that the statement of the proposition amounts to its demonstration.

This court has repeatedly held that fairness is an essential element in the trial of criminal cases in Oklahoma, and that unfairness and justice cannot be harmonized with each other, and that whenever it is made- to appear that there was any unfairness in the trial of a criminal ease such unfairness will be ground for reversal, unless it affirmatively appears from the record that it could not have materially affected a verdict of conviction.

It is the duty of officers having the custody of persons charged with crime to afford them a reasonable opportunity to privately consult with their attorneys, without having other persons present, taking such precautions as may be necessary, according to the circumstances of each case, to prevent the escape of such prisoner. It is therefore the duty of the trial courts of Oklahoma to make such orders as will secure to every ■person imprisoned upon an accusation of crime a reasonable opportunity to consult privately and freely with his counsel, without let or hindrance from any sheriff, jailor, or other officer. As to what, when and where such consultations may be had may vary with circumstances, and is a matter within the discretion of the trial court, but this is not an arbitrary discretion, and it must not be so used; otherwise it may become the means of defeating justice.

It matters not what the officers may think of the guilt of a defendant, the law presumes that he is innocent until his guilt has been legally pronounced by an impartial jury - in a fair trial. It matters not how humble, poor, or friendless he may be, or how strong and influential the feeling against him, it is his absolute right to have a fair opportunity to prepare for trial and to present his defense. The law is not hunting for victims or seeking to offer up vicarious atonements. Punishment should never be inflicted as such before a conviction, and there should be no conviction, 'unless it be legally established to the satisfaction of the jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged against him. No' attempt to railroad any man to the penitentiary or to the gallows, it matters not how guilty he may be, should for one moment be tolerated by any court. If a defendant cannot be convicted without denying him a reasonable opportunity to prepare for trial, and a fair trial, he should not be convicted at all. Any other rule would make a myth of justice and a snare and a delusion of courts.

Second. It would be difficult, if not impossible, to include in one general definition everything which constitutes contempt of court. Even if this were possible, it is not necessary to do so in this case; for the specific charge against respondents is a willful disregard and disobedience of the order ©f this court.

The Criminal Court of Appeals is the court of last resort in all criminal cases and for the settlement of all questions involving -a construction of the criminal laws of Okla-boma. This court is charged with the duty of seeing that we have a uniform system of criminal jurisprudence in the state. It would be utterly impossible for the court to discharge this duty, unless it has the power and the courage to protect its character and enforce obedience to its orders; otherwise its decisions would be a mere matter of advice or recommendation, which the subordinate courts and the officers of the state would be at liberty to follow or disregard at pleasure and the court itself would be a puerile, impotent, and contemptible thing, and its usefulness would be destroyed.

Article 4 of the Constitution of this state divides the state government into three separate, distinct, and co-ordinate departments, viz., the legislative, executive, and judicial. Sec. 50, Williams’ Const, of Okla. By the express terms of the Constitution the Criminal Court of Appeals has exclusive appellate jurisdiction of all criminal cases. See see. 187, Williams’ Const, of Okla. That which is exclusive cannot be divided or shared, either in whole or in part, with any other person or tribunal or department of the state government. It therefore necessarily follows that the Criminal Court of Appeals is the supreme tribunal for the settlement of all questions relating to criminal law.

As to the powers of this court with reference to matters of criminal law, in the case of State ex rel. Ikard v. Russell, 33 Okla. 141, 124 Pac. 1092, the Supreme Court of Oklahoma said:

“It is the settled policy of this court to follow the construction given to criminal statutes by the Criminal Court of Appeals, since the enforcement of such statutes must be in accordance with such construction. Ex parte Justus, 26 Okla. 101, 110 Pac. 907; Flood v. State ex rel., 27 Okla. 852, 113 Pac. 914; Herndon v. Hammond, County Judge, 28 Okla. 616, 115 Pac. 775.”

Our decisions as to the criminal laws of this state are not only binding on every department o'f this state government, but they are also binding upon the Supreme Court of the United States, when nothing is involved of national authority.

Mr. Cooley, in his work on Constitutional Limitations, on page 31, says:

“But the same reason which requires' that the final decision upon all questions of national jurisdiction should be left to the national courts will also hold the national • courts hound to respect the decisions of the state courts upon all questions arising under the state Constitutions and laws, where nothing is involved of national authorit3, or of right under the Constitution, laws, or treaties of the IJnited States, and to accept the state decisions as correct, and to follow them whenever the same questions arise in the national courts.”

In Beauregard v. New Orleans, 18 How. 497, 502 (15 L. Ed. 462), Mr. Justice Campbell, speaking for the Supreme Court of the IJnited States, says:

“The constitution of this court requires it to follow the laws of the several states as rules of decision wherever they apply. And the habit of the court has been to defer to the decisions of their judicial tribunals upon questions arising out of the common law of the state.”

In Bank of Hamilton v. Dudley’s Lessee, 2 Pet. 492, 524 (7 L. Ed. 496), it was argued that the exclusive power of state courts to construe legislative acts did not extend to the paramount law, so as to enable them to give efficacy to an act which was contrary to the state Constitution; but Marshall, C. J., speaking for the Supreme Court of the IJnited States, said:

“We cannot admit this distinction. The judicial department of every government is the rightful expositor of its laws, and emphatically of its supreme law.”

Again, in Elmendorf v. Tailor, 10 Wheat. 152, 159 (6. L. Ed. 289), the same eminent judge says:

“The judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government.”

The opinions of the Criminal Court of Appeals of Oklahoma upon all questions of criminal law are binding upon the Supreme Court of the United States and the Supreme Court of this state, the Governor, and all state officers. Certainly, then, the sheriff and jailor of a county are without the slightest power or authority to disregard and disobey the orders of this court, and such disobedience and disregard of the orders of this court constitute contempt of court. The power of the court to punish for contempt is clearly stated in the ninth volume of Cyc. p. 26, as follows:

“Independent of authority granted by statute, courts of record of superior jurisdiction, whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the Legislature cannot take it away or abridge it.”

Upon.the hearing of this matter a great mass of conflicting testimony was introduced, and if the court was disposed to take a harsh and extreme view of the facts presented there is ample evidence in the record to justify the court in adjudging respondent guilty of contempt and in inflicting severe punishment therefor.

We are satisfied from the testimony that the respondent Davis did not render that ready and unquestioning obedience to the order of the court which it was his duty to do; that a personal difficulty took place between respondent Davis and the attorneys for relator in which some highly improper language was used; but it also appears from the testimony that the respondent Davis has been a fearless, zealous, and faithful officer, and that when he had time for reflection he complied with the order of the court.. We are inclined to the opinion that the hesitancy which respondent first manifested with reference to obeying the order of the court, and what he then said, was due more to -the personal feeling existing between respondent and the attorneys for relator than to a disposition to defy this court. While this constitutes no defense to the charge of contempt, yet we feel that in justice we should take it into consideration in pronouncing judgment against respondent. This court has no desire to resort to arbitrary measures, especially against the peace officers of the state. All that it asks and requires is that its order shall be obeyed. No officer has the right to question the judgment of this court. If the court is in error as to any matter, an application must' be made to the court for its correction. While the respondent Davis is guilty of contempt for not rendering unquestioning obedience to the order oí the court, yet, in view of his past character as an officer and the fact that before the matter was reported to the court he did comply with and obey said order, this court will suspend for the present pronouncing any judgment of punishment against him, except that he be directed to pay the costs of this proceeding, and when said costs are paid the clerk of this court is directed to enter a judgment discharging respondent Davis entirely in this proceeding.

The death of the respondent William Van .Bibber having been suggested to the court, this proceeding is abated as to him.

ARMSTRONG, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    V. R. HOPKINS v. STATE.
    No. A-1501.
    Opinion Filed March 29, 1913.
    (130 Pac. 1101.)
    1. CONTINUANCE — Absent Witness — Diligence. It is no abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance or to take the deposition of a nonresident witness.
    2. HOMICIDE — Verdict—Penalty. Section 2275 of Comp. Laws 1909 (Rev. Laws, sec. 2319), authorizes the penalty of death at the discretion of the jury; and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment for life, and, when a plea of not guilty is entered to an indictment or information charging murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death, only “upon a plea of guilty, the court shall determine the same.” In such cases section 2028 and section 2029 of Comp. Laws 1909 have no application.
    3. JURY — 'Competency—Homicide. Under section 6812, subd. 8, Comp. Laws 1909, (Rev. Laws, sec. 5859), providing, “If the .offense charged be punishable with death, the entertaining of such conscientious opinion as would preclude his finding the defendant guilty of, in which case he shall neither be permitted nor compelled to serve as a juror,” held, where on a trial for murder a juror^ who on his voir dire answers that his conscientious scruples against the death penalty are such as would preclude him from agreeing to a verdict of guilty, is incompetent to sit as a juror, and a challenge for cause by the state was properly allowed.
    4. WITNESSES — Cross-Examination. On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.
    5. SAME. When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the court will not be reviewed on appeal.
    6. EVIDENCE — Res Gestae — Self-Serving Declarations. Mere self-serving declarations, made to third parties by the defendant at a place distant from the scene of the homicide, are not admissible as a part of the res gestae; and, while the defendant may prove that he conversed with persons who were at the place he claimed to be, he cannot introduce telephone conversations there had which on his part appear to be self-serving declarations.
    7. TRIAL — Declarations of Jury — Inspection. Where the jury in open court request permission to take with them to the jury room, to inspect during their deliberations, articles introduced in evidence, the granting or refusal of the request is within the discretion of the trial court, the exercise of which will not be reviewed on appeal without an affirmative showing that the discretion was abused, In so far as the case of Hanslng v. Territory, 4 Okla. 443, 46 Pac. 509, conflicts herewith, it is overruled.
    8. NEW TRIAL — 'Grounds. Where, on a trial for murder, the court permitted the jury, to take, on retirement, and to have the same in their possession in the jury room, while deliberating, the defendant’s shotgun and the shells and shot which had been introduced in evidence, and it not being made to appear that they were used by the jury in a manner not consistent with the evidence, it cannot be said that the jury thereby received evidence out of court, and the statutory grounds as to new trials — section 6S96, Comp. Laws 1909: “Second. When the jury has received any evidence out of court. Third. Or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented”— do not apply.

      9. TRIAL — Declarations of Jury — Inspection—“Papers.” While a shotgun, shells, ^nd shot were not “papers” within Comp. Laws 1909, sec. 6864, authorizing' the jury to take to the jury room papers' received in evidence, the taking of such articles to the jury room did not constitute error, where they were not used or handled by the jury in a manner inconsistent with the evidence.
    (Syllabus by the Court.) .

      Appeal from District Court, OTcmulgee County; Wade 8. Stanfield, Judge.

    Y. B. Hopkins was convicted of murder, and he appeals.
    Affirmed.

      M. M. Alexander and Stanford & Cochran, for plaintiff in error.

      •Chas. . West, Atty. Gen., R. E. Gish, and J. W. Childers, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, Y. E. Hopkins, hereinafter referred to as the defendant, was convicted of murder in the district court of Okmulgee county on an information filed in said court February 4, 1911, charging him with the murder ’ of Walter Huff, in said county, on or about January 13, 1911, and in accordance with the verdict of the jury was sentenced to imprisonment at hard labor in the state penitentiary for life. The judgment and sentence were entered May 27, 1911.

To reverse the judgment, the defendant prosecuted an appeal by filing in this court, on November 27th, a petition in error with case-made.

The testimony in this case is so voluminous that a full review of the same would require a volume in itself, and would serve no useful purpose. The salient facts, briefly stated, are as follows: The defendant and the deceased, both negroes, had lived in the vicinity of Okmulgee for several years, coming from the same neighborhood in Arkansas, and had been friends before coming to Oklahoma. They were both farmers; the defendant living on a rented place about one-half mile west of Okmulgee. Some few months prior to the tragedy, they had a difficulty and the defendant had sworn out a warrant for the deceased. The latter was arrested and had been in jail for some time prior to the 13th day of January, 1911. He was released upon bond on the afternoon of that fatal day, and had started to walk from Okmulgee to the home of Jeff Hopkins, who lived some six miles northwest of Okmulgee. The defendant was in Okmulgee that same day and talked to several witnesses about the prospect of the deceased being released from jail, and said to several persons who were witnesses, that “they had better keep him in jail; that there would be something doing if he got out." One witness suggested to the defendant that he had better not start any trouble, to which the latter replied, “You wait and see,” or words to that effect. Shortly after the defendant was informed of the release of the deceased, he went to a hardware store and there asked for buckshot shells and purchased two, which were all they had in stock of that kind. He also purchased five BB shot shells for a 12-gauge shotgun, which were taken out of a fresh box. Later that afternoon the defendant was seen with a Winchester shotgun walking west from Okmulgee in the general direction of where the homicide occurred. On his way to their home, the deceased was overtaken by Jeff Hopkins and his wife. This party of three were seen by several witnesses going slowly along the road about sundown; the deceased walking by the side of the buggy. They went by the place of one witness D. Williams just before entering the road which runs through the woods along by what is called Checotah Lake. Soon after they entered this road by the lake and became lost to sight among the trees, this witness heard several gunshots in rapid succession, then after a considerable pause two more, another pause, and one last shot. Hastening to the scene, he found in order a woman’s glove, a buggy whip, an overcoat, and further rip the road the dead body of Walter Huff.

Jeff and Lela Hopkins testified that the defendant opened fire on them from behind a large tree a short distance to the right of the road. At the first shot the deceased said, “Hold up there,” evidently thinking it was accidental. The defendant stepped from behind the tree, ejected a shell, and continued to shoot. The second shot struck Lela Hopkins in the head and she fell out of the buggy. The third or fourth shot struck Jeff Hopkins, and he tumbled out and crawled into the brush. The deceased ran up the road, pursued by the defendant, who passed the buggy, shooting as he went. The defendant was recegnized and positively identified by Jeff and Lela Hopkins; they having known him for a long time. The body of the deceased was riddled with BB shot and buck-shot. Several empty shells were picked up at the foot of the tree near the road, and shot were found in trees across the road from this tree. This shot, the empty shells, the defendant’s gun, and the box of shells from which he bought the five were all in evidence, and the jury had full opportunity to compare all these things with one, another, and with the account of the wounds made and the kind of shot found in the wounds.

The defense was an alibi. Living with the defendant at the time was a boy by the name of M. C. Porter. The defendant admits that early in the day he and this boy went west from their home down to a small lake to shoot fish, but that they returned before 5 o’clock in the afternoon. The defendant lived at the time on land owned by one James Thomas. The defendant had been in Okmulgee on the day of the killing, and had learned that the deceased was about to be released from jail; he asked James Thomas to find out for, sure for him whether Walter Huif got out of jail, and said that he would come to his house and inquire. On the evening of January 13th, and about the hour of 6 or 6:30, the defendant and the boy M. C. Porter appeared at the James Thomas home, and the defendant made inquiry in regard to the deceased getting out of jail. Being informed by Thomas that he was out of jail, the defendant called up a grocery store in Okmulgee, run by a negro, and tried to find out who it was that went on the bond of the deceased. There is some conflict in the testimony as to the time the defendant and the boy reached the Thomas place, which is about four miles from the scene of the crime.

Several witnesses for the defense swore that the defendant and the boy were at their home and feeding hogs at practically the same time that Walter TIufE was killed. These witnesses are all negroes. Just a little to the southwest of where the defendant lived at the time, a white man by the name of C. R. Long lived. A person standing at the home of this man Long could plainly see the house and the barn where the defendant lived.

The petition in this case covers 27 pages and contains 30 assignments of error, only a few of which we deem necessary to specifically consider.

The first alleged error is that the trial court abused its discretion in denying the application for a continuance. In the affidavit for continuance the defendant stated that C. R. Long, who resided at Rolfe, Mo., is a material witness, and, if present, would testify that on the day of the killing the defendant was at his own home at the time the killing is alleged to have taken place; that defendant has only been recently released from jail; that he has used every possible effort to locate said witness and he has only been able to locate said witness in the past few days; that immediately he caused his attorney to see said witness and he (the said C. R. Long) ■ has promised to be present at the next term of this court and testify; and that he believes the testimony so to be given to be true. Evidently the trial court was satisfied that due diligence was not shown, and the absent witness’ promise to be present at the next term of court was simply a subterfuge to secure a continuance. If the defendant had exercised due diligence, he could have procured the deposition of this nonresident witness under the provisions of article 17, Procedure Criminal. The application lacks the evidence of good faith, as well as that of due diligence.

Second. That the court erred in sustaining a challenge for cause by the state to a juror, who on his voir dire stated that lie bad conscientious scruples against tbe infliction of the death penalty,. and that he could not conscientiously agree to a verdict which should fix -that punishment.

It is insisted that section 2275 of Comp. Laws 1909, providing :

“Every person convicted of. murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life at the discretion of the jury. IJpon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in .their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same”

■ — has been repealed by implication by the enactment of section 2028, providing:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in -their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided”

—and that, unless there is a special request by the defendant in a murder case that the jury do fix the punishment it is permissible for the jury, if they find the defendant guilty of murder, to leave the punishment to be fixed by the court. And therefore the defendant was denied the right of having a jury selected in conformity with the law. The jury selected imposed the lighter punishment, and for this reason the ruling of the court is not open to review. However, as there seems to be some misapprehension of the respective sections prevalent, we will briefly state our views on the question.

Section 2275 authorizes the penalty of death at the discretion of the jury, and, if they find the defendant guilty of murder, they must designate in their verdict whether he shall be punished by death or imprisonment' for life at hard labor; and, when a plea of not guilty is entered to an indictment or information charging .murder, the extreme penalty can be adjudged only upon the verdict of a jury fixing the punishment by death. In such cases the general provisions of section 2028 and section 2029 _ of the Penal Code have no application, only “upon a plea of guilty the court shall determine the same.” Opinion of ilie Judges, 6 Okla. Or. 18, 115 Pac. 1028.

Subdivision 8 of section 6812, Comp. Laws 1909, provides that:

“(8) If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty of, in which case he shall neither be permitted nor compelled to serve as a juror.”

Under the law the challenge to the juror was properly sus^ tained.

Numerous exceptions were taken to the rulings of the court on the rejection and admission of testimony. Among these may be noticed the following: On the cross-examination of the state’s witness Jeff Hopkins the court sustained objections to various questions as to whether he (the said Hopkins) had in fact held himself out to be a hoodoo doctor, and in excluding the testimony of Mrs. Lou Allen and Ed Love, offered by the defendant to prove that the witness Jeff Hopkins had been holding himself out as a hoodoo doctor. We flunk this evidence was properly excluded. The witness Hopkins’ identification of the defendant was only remotely affected one way or another, -if at all, by evidence that he held himself out to be a hoodoo doctor, whatever that is. But we suppose they had in mind the practice of the art of voodooism. There was therefore no logical relevancy in the evidence offered; and, had it been admitted, the court would have been led into the trial of other issues not germane to the principal one, such as what the beliefs of a witness are, and whether or not they are so unreasonable in themselves as to show general lack of mental balance, and a host of collateral matters that would not tend to show whether or not witness saw and recognized the defendant at the time of the tragedy.

It also appears from the examination of this witness that he said he was not a hoodoo doctor and did not pretend to be at any time. As to what is the proper practice on cross-examination of witnesses the general rule is that the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy,- memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.

When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent are very largely subject to the control of the court in the exercise of a sound discretion; and, unless it affirmatively appears that this discretion was abused, the rulings of the trial court will not be reviewed on appeal. Harrold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365.

The record discloses that, to establish an alibi, the defendant and several witnesses testified that on the evening of the tragedy the defendant came to the house of James Thomas, a distance of three or four miles from the scene of the crime, and while there engaged in telephone conversations with Isaac. Lewis and Berry House, who were at a grocery store in Ok-mulgee, and the defendant offered to prove by himself and various other witnesses the telephone conversations which he then had were inquiries with reference to whether or not the deceased, Walter Huff, who had been confined in the county jail upon a charge of assault with intent to kill upon the person of the defendant, had been released from custody that day. Exceptions were taken to the refusal of the court to permit those-conversations to be received in evidence. It is insisted that whatever is said during the period of the alibi is a part of Hie-res gestae.

As we view the record, this was an attempt to introduce-mere self-serving declarations made to third parties by the defendant "at a place distant from where the killing occurred, and not shown to be under the stress of emotion or uncontrollable impulse. None of the essentials of matter constituting a part of the res gestae are shown. While the defendant may prove he conversed with persons who were at the place he claims to have been, he cannot introduce telephone conversations then had, which on his part appear to be nothing more than mere self-serving declarations. The objections were therefore properly sustained. . •

After a careful examination of the exceptions taken to the rulings of the court, on the rejection and admission of testimony, and of the various questions raised thereby, we are satisfied that, within well-settled rules sustained and upheld by the decisions of this court, no error was committed by the court in any of its rulings.

Several assignments are to’ the effect that the court erred in permitting the county attorney to make misstatements of the evidence, and statements not warranted by the evidence, prejudicial to the defendant in his closing argument of the case to the jury. And the record contains several excerpts from the argument; the two most severely criticised are as follows:

“There is no question in the world but that the man who bought those shells over there at Parkinson & Trent’s store, wrapped up in the paper as they were which was found out there, was the man who -shot and killed Walter Iiuff.”

And:

“I say that I have a right to. say that on that day 'as this man and wife, while riding along the road, this defendant, an assassin, stepped from behind’ a tree and began shooting at them and that he shot Walter Huff.”

To which language the defendant duly excepted and requested the court to instruct the jury to disregard such statements, which request the court refused.

The record shows that counsel for the defendant also gave his own version of what the testimony was, and in each’ instance the difference was simply what the testimony was. The court specifically instructed the jury as follows:

“The jury are the judges of the testimony in this case. They remember the testimony. They will disregard everything but the testimony given.”

And the county attorney said to the jury:

“Each of you men have heard the evidence. You remember whether or not any such evidence was given. You are to be governed by it; and not by what I say.”

In the face of these statements to the jury, both by the court and the county attorney, taken in connection with the interruptive denials and. interjections of counsel for the defendant, we do not think the jury could have been misled as to the facts in evidence. In fact, we doubt that the county attorney went beyond the limits of legitimate argument in the statements criticised.

In one of its instructions the court told the jury that they might disregard the whole of the evidence of a witness who they believed had willfully sworn falsely to any material fact in the case. It is insisted that the giving of this instruction constituted reversible error. In Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029, this court has limited to proper cases the doctrine stated in the early case of, Henry v. State, 6 Okla. Cr. 430, 119 Pac. 278. The inability of the defendant’s learned counsel to point out specifically any state of facts in this case that tend to show that the defendant was prejudiced thereby is sufficient to confirm our conclusion that the giving of this instruction does not necessarily constitute reversible error. This was the only instruction given that is criticised in the brief. Error is assigned upon the refusal of the court to give certain instructions requested, but this assignment is not supported by citation of authority; and, under the rulings of this court that where the instructions given, considered as a whole, fully and fairly state the law of the case, such alleged errors, unsupported by citation of authority, will not be considered.

On page 634 the record recites that, over the objection of the defendant, the court permitted the jury to take with them to the jury room the shotgun, the shells, and the shot which had been offered in evidence. This action of the court, the final matter of alleged error, presents the most serious question in the case. The defendant’s counsel contends that this error alone entitles the defendant to a reversal of the case, and in support of his contention confidently cites the case of Hansing v. Territory, 4 Okla. 443, 46 Pac. 509. The statute (section 6864, Comp. Laws 1909, [sec. 5912, Rev. Laws]) provides:

“On retiring for deliberation the jury may take with them the written instructions given by the court; the forms of verdict approved by the court, and all papers -which have been received as evidence in the case, or copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.”

In the Hansing Case this section is construed; and it is held that this being the only statutory provision upon this subject, it was error to permit the jury to take with them to their room the firearms used by the two defendants and the "hat worn by the deceased at the time of the affray. Mr. Justice Scott, who delivered the opinion of the court, said:

“It appears that in this case the evidence is very, conflicting. * * * It appears by the testimony of two of the jurors that the jury, after retiring, in the defendant’s absence, made a number of experiments with the gun and hat, for the purpose of testing the accuracy of the testimony of the different witnesses on that point, showing that the jury received light to enable them to reach a conclusion from a foreign and forbidden source.”

In the case of State v. Crea, 10 Idaho, 88, 76 Pac. 1013, the Hansing Case is quoted with approval. In the case of Kennon v. Territory, 5 Okla. 685, 50 Pac. 172, the doctrine of the Hansing Case is somewhat modified. In Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, it was held proper for the jury to take, on retirement, the coat worn by deceased when he was shot, which was introduced in evidence; counsel for the defendant stating that he had no objection thereto.

We think that articles which have been received in evidence are not “papers” in the sense of the statute; and the practice of permitting the jury to take to the jury room such articles or exhibits, unless the defendant consents, is of doubtful propriety. However, where it does not appear that they were used or handled by the jurors in a manner not consistent with the evidence, it does not constitute error.

The Supreme Court of Washington, in passing upon this point under a statute similar to ours, in the case of State v. Webster, 21 Wash. 63, 57 Pac. 361, says:

“The objection of counsel is met by the very well-considered case of Doctor Jack v. Territory, 2 Wash. T. 101, 3 Pac. 832, in which the above section, which has been the existing law of the state and territory for many years, is construed. There it was held that exhibits properly introduced in evidence, and explanatory of the evidence of witness, might be taken to the jury room (in that case, which was a conviction for murder in the first degree, a hat and coat, which were exhibits in the case, were taken to the jury room); and such has been the practice and the accepted construction of this section since then.”

In Spencer v. State, 34 Tex. Cr. R. 238, 30 S. W. 46, 32 S. W. 690, on a trial for murder, after the jury had retired to consider of their verdict, the clothing of deceased, which had been put in evidence, was, on application of the jury, authorized by the court to be sent to them in the absence of and without the knowledge of defendant and his counsel. The Court” of Criminal Appeals held that this was not error. In Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534, the same court held, that:

“It is not error to authorize the carrying of deceased’s coat, which had been used in evidence, into the jury room.”

In Ferguson v. State, 61 Tex. Cr. R. 152, 136 S. W. 465, the same court reaffirmed this doctrine.

The Supreme Court of Arkansas has held that it was within the discretion of the court to permit the jury to take a forged time cheek to their jury room for further inspection during their deliberations. ’ Harshaw v. State, 94 Ark. 343, 127 S. W. 745.

The Supreme Court of Iowa, in a homicide case, held that, where decedent’s skull was admitted in evidence, the jury were properly permitted to take it to the jury room. State v. Teale, 135 N. W. 408.

The Supreme Court of Illinois, in McCoy v. People, 175 Ill. 224, 51 N. E. 777, held it was proper for the jury to take, on retirement, the - bullet removed from the body of the deceased, and the revolver belonging to the accused, where both had been admitted in evidence. And in the case of People v. Morris, 254 Ill. 559, 98 N. E. 975, the same court held that it is proper, in a prosecution for homicide, to. send to the jury room objects which have been introduced in evidence, which are or may be of assistance to the jury in illustrating or elucidating some controverted question involved in the evidence, and that this is a matter wholly within the sound discretion of the court, the exercise of which will not be interfered with without an affirmative showing that the discretion was abused. See, also, State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223; State v. McCafferty, 63 Me. 223; Powell v. State, 61 Miss. 319; Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812.

Section 6896, Comp. Laws 1909, (Rev. Laws, sec. 5937), provides

“A court in which, a.trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: * * * Second. When the jury has received any evidence out of court, other than that resulting from a view of the premises. Third. When the jury * * * has been guilty of any misconduct by which a fair and due consideration of the case has been prevented.”

In the case at bar it cannot be said that the jury received evidence out of court. These articles had been properly identified and received as evidence in the case. Nor can it be said that the jury was guilty of misconduct, such as prevented a fair and due consideration of the case, for them to take with them these articles. No injury is pointed out, and no prejudice to the substantial rights of the defendant appears; and we are of opinion that in the case at bar there was no error in that regard. In so far as the case of Hansing v. Territory, supra, conflicts with this opinion, it is overruled.

The importance of the question in our practice must justify the attention here given to it; and we feel constrained to enunciate, as a general rule, that, where the jury in open court request permission to take with them to the jury room, to inspect during their deliberations, articles introduced in .evidence, the granting or refusal of the request is within the discretion of the trial court, but, if the defendant consents, the request should be granted. The practice at best is not a safe one, as cases might arise where the jury during its deliberations might use, or attempt experiments in a manner not consistent with the evidence; and it is strongly urged upon trial courts to avoid possible prejudicial error by refusing such requests, except in cases where the trial court is convinced that an inspection of such articles may be of assistance to the jury in considering some controverted question involved in the evidence.

AYhile w.e agree that some irregularities intervened during the progress of the trial of this case, as herein indicated, we regard these irregularities as not having probably had any perceptible effect upon the result of the trial, and our conclusion is that no error has been committed to the prejudice of the defendant. In our opinion, the evidence in the case shows, beyond any character of doubt, that this defendant committed a cold-blooded assassination _ by lying in wait by the wayside and shooting a defenseless neighbor.

The judgment of conviction is affirmed.

ARMSTRONG, P. j., and FURMAN, J., concur.


text:
    ASA SIMERSON v. STATE.
    No. A-1693.
    Opinion Filed April 5, 1913.
    (130 Pac. 1112.)
    1. APPEAL — Dismissal. Where a motion is made to dismiss an appeal for defects in the record, and the matter is set for hearing, and the appellant does not appear or file a correction to the record, the motion will be taken as confessed.
    2. APPEAL — Record—Correction. Por the manner in which jurisdictional defects may be cured in a record, see opinion..
    (Syllabus by the Court.)

      Appeal from Craig County Court; 8. F. Parks, Judge.

    Asa Simerson was convicted of violating the prohibitory liquor law, and appeals.
    Dismissed.

      Riddle & Bennett, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant was convicted of violating the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. From this judgment appellant attempted to appeal.

On the 8th day of July, 1912, the Attorney General filed a motion to dismiss this appeal upon the following grounds:

“First. Because no written notice of appeal was ever served on the clerk of the county court in which this case was tried as required by law.
“Second. Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Craig county, Olda., on the 19th day of January, 1912, at which time the court granted the defendant 60 days to prepare and serve the case-made, but did not grant any additional extension of time for filing petition in error and case-made in this court; that thereafter, to wit, on the 9th day of March, 1912, the judge of said court made an order extending the time for filing the appeal in this court for 20 days from and after the expiration of the time theretofore allowed, which said extended time expired on and with the 8th day of April, 1912, and the petition in error and case-made were not filed in this court until the 12th day of April, 1912, four days after said time had expired.”

On the 16th day of July, 1912, appellant responded to this motion, and offered to prove as a matter of fact that notices of appeal had been served upon the county attorney of Craig county, Oída., and the clerk of the county court of Craig county, Oída., as required by law, and also that on the 8th day of April, 1912, the county court of Craig county made and entered an additional order extending the time for five days in which to file the appeal in this court. The matter was set down for hearing upon this motion and response of appellant, but appellant failed and neglected to appear or to correct the record.

Section 1919, Comp. Laws 1909, (Rev. Laws, sec. 1771), is as follows:

“Said court (Criminal Court of Appeals) shall have power, upon affidavit or otherwise, to ascertain such matter of fact as may be necessary to the exercise of its jurisdiction.”

If, as a matter of fact, proper notices of appeal had been served in this case, appellant could have established that fact by affidavits or by a stipulation agreed to and signed by the county attorney of Craig county. If as a matter of fact the county court of Craig county had on the 8th day of April, 1912, granted an order extending the time for 5 days for perfecting the appeal in this court, then it was the duty of counsel for appellant to have had a nunc pro tunc order entered by the county court showing that fact and have the same certified to this court by the clerk of the county court of Craig county.

Both of the defects in the record complained of in the motion to dismiss are jurisdictional. This court cannot therefore treat the motion to dismiss other than as confessed, and the appeal is accordingly dismissed.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    A. J. VAUGHN v. STATE.
    No. A-1817.
    Opinion Filed April 5, 1913.
    (130 Pac. 1100.)
    TRIAL — Instructions—Rules of Evidence. An instruction in the following: language: “If, after considering- all the evidence, you are morally certain of the innocence of the defendant, then it is your duty to acquit him. Otherwise, convict him.” Held error, because it places the burden of proof on the defendant to establish his innocence, and deprives him of the benefit of the presumption of innocence, which prevails until he is proven guilty beyond a reasonable doubt.
    (Syllabus by the Court.)

      Error, from Pawnee County Court; Fred S. Liscum, Judge.

    A. J. Vaughn was convicted of violation of the prohibition law, and brings error.
    Beversed and remanded.

      Orton & McNeill, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the state.
   DOYLE, J.

Plaintiff in error was convicted of having in his possession whisky with the unlawful intent 'to violate provisions of the prohibition law, and was on July 8, 1912, in accordance with the verdict of the jury, sentenced to be confined in the county jail for 30 days, and pay a fine of $350. To reverse this judgment an appeal on case-made was perfected.

Defendant’s counsel contend that the court misdirected the jury, to the prejudice of the substantial rights of the defendant, by giving the following instruction:

“If, after considering all the evidence, you are morally certain of the innocence of the defendant, then it is your duty to acquit, otherwise, convict him.”

The record shows that an exception was taken to the giving of this instruction, and-that the error was also presented to the trial court in a motion for new trial. The Attorney General has filed a confession of error as follows:

“This instruction is fundamentally erroneous, in that it deprives the defendant of the presumption of innocence guaranteed to him by the law of this state, and also places the burden upon him of establishing his innocence to a moral certainty, instead of requiring the state to prove his guilt beyond a reasonable doubt. We think the error here complained of so palpable and of such a nature as to deprive this defendant of a substantial right to his prejudice.”

Unquestionably the judgment should be reversed. A. defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of a reasonable doubt as to whether his guilt is satisfactorily' shown, he is entitled to be acquitted. Under the rule announced by this court in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, and the authorities cited there, the confession of error must be sustained.

The judgment of the county court of Pawnee county is therefore reversed, and the cause remanded.

ARMSTRONG, P. J., and FURMAN, J., concur.


author: ARMSTRONG-, P. J.

text:
    STATE v. ADAM ZANGER.
    No. A-1628.
    Opinion Filed April 5, 1913.,
    (130 Pac. 1107.)
    INTOXICATING LIQUORS — Information—Illegal Sale. An information, although, awkwardly drawn, and containing several allegations which are objectionable, and the intent of which apparently indicates that it was the purpose of the pleader to charge two distinct offenses, but which, because of the language used, only charges one offense, to wit, the unlawful sale of beer, states facts sufficient to constitute an offense against the laws of this state, and is not demurrable.
    (Syllabus by the Court.)

      Appeal from, Goal Gounty Courtj R. II. Wells, Judge.

    Information against Adam Zanger for violating the prohibitory law. From a judgment sustaining a demurrer thereto,the State brings error.
    Eeversed.

      Jas. R. Wood, County Atty., for the State.

      Fooshee & Brunson, for defendant in error.
   ARMSTRONG-, P. J.

This appeal is 'by the state of Oklahoma upon a question reserved by the county attorney.

It appears that an information was filed in the county court of Coal county purporting to charge the defendant in error with violating the ’prohibitory law, the charging part of said information being as follows:

“Said Adam Zanger did then and there willfully and unlawfully sell and furnish to one Jesse Combs certain malt liquors, to wit, beer, and a certain imitation of, and a substitute for, malt liquors, to wit, an imitation of, and a substitute for, beer.”

A demurrer was filed to this information on behalf of the defendant in error, and was sustained by the trial court on the following grounds:

■ “That said information does not state facts sufficient to constitute a crime against the laws of the state of Oklahoma, * * * that the information is duplicitous charging more than one offense against the defendant.”

The court erred in sustaining the' demurrer to the information, because it does state facts sufficient to allege the offense of selling beer. Under a former holding of this court, it does not state facts sufficient to constitute a “furnishing” within the meaning of the prohibitory law. Scott v. State, 6 Okla. Or. 492, 119 Pac. 1023. The allegation relative to furnishing is surplus-age.

The latter clause in the charging part of the information does not state facts sufficient to constitute the sale of an imitation or substitute for beer under the holding of this court in the ease of Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 Pac. 179, and for that reason it is not duplicitous; that portion of the information being also surplusage. We do not want to be understood as approving this information as a model form „ of pleading, -but it is sufficient to charge and does charge the illegal sale of intoxicating liquor, to wit, beer.

It follows that the judgment of the trial court should be reversed, and the cause remanded for a trial. And it is so ordered.

DOYLE and FURMAN, JJ., concur.


author: FUBMAN, J.

text:
    B. H. UPDIKE v. STATE.
    No. A-1356.
    Opinion Filed April 5, 1913.
    (130 Pac. 1107.)
    1. HOMICIDE — Dying Declarations — Admissibility. (a) Where a dying declaration has been reduced to writing, and has been read over to and approved and signed by the deceased, the fact < that it may not be in the exact language used by the deceased will not render it inadmissible; provided, the language used is substantially the same as that used by the deceased.
    (b) Por a written statement which was properly admitted in evidence as a dying declaration,. see opinion.
    2. HOMICIDE — Instructions—Degree of Offense. Where an appellant has been convicted of murder, the judgment should not be reversed because of the failure of the trial court to instruct on manslaughter in the second degree, when it appears from the testimony that the issue of manslaughter in the second degree was not raised by the evidence.
    3. HOMICIDE — Instructions—Construction as a Whole — Manslaughter —Anger or Voluntary Intoxication, (a) Instructions must be considered as a whole and all of their several parts must be construed together and in connection with each other.
    (b) Por correct instructions upon the subject of manslaughter in the first degree given in a case where the appellant was convicted of murder, see opinion.

      (o) Anger or "voluntary intoxication when not of such a character as to render the mind incapable of forming a premeditated design to effect the death of the deceased or of some other person will not reduce an unlawful homicide from murder to, manslaughter.
    " (Syllabus by the Court.)

      Appeal from District Court, Oldahofna County; George W. Ciarle, Judge.

    B. H. Updike was convicted of murder, and his punishment assessed at imprisonment in the penitentiary for life, and he appeals.
    Affirmed.

      Moman Pruiett and Kistler, McAdams & Hashell, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FUBMAN, J.

Three questions are presented in the brief of counsel for appellant: First, that the court erred in receiving as dying declárations a written statement purporting to have been made by the deceased; second, that the court erred in instructing the jury that they could not convict the appellant of manslaughter in the second degree; third, that the court erred in the instructions giveii to the jury with reference to manslaughter in the first degree.

First. When the purported dying statement was offered in evidence, counsel for appellant objected to the same as being incompetent, irrelevant, and immaterial, and not being a statement made by the deceased. This objection was overruled by the court, to which appellant excepted. The record then proceeds as follows:

“Whereupon, the statement was read to the jury, which is in words and figures as follows, to wit: T; P. D. Anderson, of Oklahoma City, Oklahoma, being mortally wounded, and realizing and believing that I will not live, and having given up all hope of life and recovery, make the following statement as my dying declaration: I live at 111% — ’
“By Mr. Pruiett: I now object, and ask that that portion of the statement ‘make this my .dying declaration, be stricken, for the reason that it is not the language of the deceased, wholly incompetent, irrelevant, and immaterial and prejudicial to the rights of the defendant.
"By the Court: Overruled.
“By Mr. Pruiett: Note our exception.
“(Statement continued:) ‘West Reno, in Oklahoma City,’ Oklahoma. My wife lives at 1111 West Reno. TJpdike’s wife is my wife’s sister. We are brothers-in-law. Updike was on a big drunk. I just walked down there for a few minutes. Updike and his wife were having a quarrel. He shot the other man, and then he shot me. The other man rooms there with him. Updike and his wife had some trouble. He said, “Nolie, I am going to kill you.” He went to another room, and came back with a gun, and kicked a window out to get into the room. His wife left when he kicked the window in. He then shot the other man who was there, and then before I could get out he shot me. Jan. 15, 1911. [Signed] P. D. Anderson.’”

In support of this objection, counsel for appellant in their brief say:

“The evidence of Mr. Zwick and Dr. Riley clearly shows that the following part of the statement was not the statement of the deceased, but that of Mr. Zwick, assistant county attorney; ‘I, P. D. Anderson, of Oklahoma City, Oklahoma, being mortally wounded, and realizing and believing that I will not live, and having given up all hope of life and recovery, make the following statement as my dying declaration.’ The evidence clearly shows that Mr. Anderson never made any such statement, and we clo not believe that it can be inferred from his action that he even acquiesced in the same.”

So it is seen that the specific objection to the dying declaration was that the statement contained in the first paragraph was not in the language of the deceased, and that there was nothing in the record showing that he acquiesced in the’language used. The paragraph objected to did not state any fact affecting the guilt or innocence of appellant. It was merely introductory to the statement as to how the homicide occurred. It is nowhere claimed in the brief of counsel for appellant that as a matter of fact it had not been proven that the statement made by the deceased was not made under such circumstances as would render it competent as a dying declaration and no such abjection was made in the court below. The objection then can only be considered as to the first paragraph contained in the statement. This matter was fully investigated in the trial court. William H. Zwick, assistant county attorney, testified: That he called on the deceased at the hospital about 7:30 o’clock on the evening of the difficulty, and was with him about 20 minutes. Dr. Riley was present. That he informed the deceased that he represented the county attorney’s office, and asked the deceased if he desired to make a statement as to how the shooting occurred. The deceased asked the doctor as to his condition, and asked him if he would ever recover. The doctor said: “In my judgment you will die from the effects of this wound.” That witness then informed the deceased that unless he felt himself that he was going to die from the effects of the wound, and believed what the doctor had told him, he, witness, did not desire to take a statement from him, deceased, because it would be of no value. Deceased .then said: “I will tell you how it occurred.” That witness took out a piece of paper and 'wrote down what deceased said to him; when he was through, witness said to deceased, “Can you understand me?” and deceased said that he could. Witness then said, “I want to read the statement to you slowly and carefully and if it is not correct I want you to make the correction.” That witness then read Die statement over in full, and asked deceased if it was correct, and he replied that it was. That then two attendants raised deceased up in the bed and witness held a paper before him and the deceased signed it.

Mrs. G-raham testified that she was with deceased shortly after the shooting; she saw the deceased on the back porch of the apartment where he was shot; that she knelt down by him and he was gasping to get his breath, and she saw that he was still alive; that finally he appeared to regain consciousness; that he never mentioned his wife and.child while he lay there, except to give their address, and he made no statements there except to answer questions.

Dr. J. W. Riley testified: That he was commissioner of health of Oklahoma City.' That about 6 o’clock on the.evening of the 15th day of January, 1911, he was called upon to visit deceased. That deceased was shot through the body, but the bullet did not come out. The deceased was carried to St. Anthony’s Hospital about 7 o’clock, and witness saw deceased there, and was with him an hour or an hour and a half. When he next saw the deceased, the deceased was dead. The deceased died about midnight that night from hemorrhage from the wound inflicted. • That, when he first saw the deceased, he was semiconscious. He was just coming out of the shock from the shot, but the deceased regained bis conscionsness completely. Witness was acquainted with William II. Zwick, the assistant county attorney, and was present when he was in the room of' deceased. That deceased was conscious, and talked and answered questions intelligently, and seemed to understand, what he said and what was said to him. That witness informed deceased that he was mortally wounded, and was going to die, and informed deceased he could not do anything for him, and that,, if he had anything to say, he had better say it. Mr. Zwick spoke up and told the deceased that, unless he realized he was mortally wounded and was going to die, the statement would do-no good. The deceased then made a statement to Zwick and it was taken down and reduced to writing by Zwick. It was then read over to the deceased and signed by him; when it was so-read over, deceased said "that was the facts in the case,” or words to that effect. There was no possibility of the recovery of the deceased at the time the statement was made. Deceased' appeared to realize the seriousness of his condition, and appeared to realize that he was going to die and called for his-wife and child.

The circumstances under which this statement was made- and the statements which passed between assistant county attorney Zwick and the deceased fully justified the statements-contained in the paragraph objected to, and the 'fact that they were afterwards read over to and signed by tbe deceased, makes them the statements of the deceased. It is absolutely clear that these statements were made when all hope of recovery had been lost, and when the deceased was really a dying man. When first shot, deceased fell to the floor in an unconscious condition caused by the shock of the wound. Those who first reached him found him gasping for breath, and testified that he afterwards regained consciousness. The character of the wound and all of the circumstances in this case are conclusive as to the fact that deceased realized his condition.

In the case of State v. Baldwin, 15 Wash. 15, 45 Pac. 650, the very question now before us was passed upon by the Supreme Court of Washington, and that court said:

“He had been informed by the doctor that he was about to die, and said that he realized it. This was sufficient to make the declaration admissible. It also appeared that the deceased had sent for an attorney, and had related to him the circumstances of the shooting, and that some time thereafter said attorney reduced the same to writing, not in the presence of the deceased; and it also appears that in one. or two minutes said attorney testified the statement was incorrect, and that he had made a mistake therein in reducing it to writing, but it appears that the statement had been read to the deceased a short time before his death, and that, after directing a portion of it to be re-read to him, he seemed • satisfied with it, and signed it. The fact that it was not in the exact language of the declarant would not render it inadmissible. Nor would the testimony of the attorney who reduced it to writing that it was incorrect in one or two particulars, as it would still be a question of fact for the jury. The alleged mistake related to an unimportant matter leading up to the time of the controversy, and it probably escaped the attention of the declarant at the time the same was read over to him. None of the objections raised against the admission of the dying declaration are tenable.”

In the case of State v. Cantieny, 34 Minn. 1, 24 N. W. 458, discussing this very question, the Supreme Court of that state said:

“The declaration thus presented was in a writing which was made by one Carrigan, in the presence of Laughlin and of one Kennedy. The facts of the ease were drawn out from Laughlin by Carrigan, who then put the same in the writing. Some facts were suggested by Kennedy, to which Laughlin assented. The writing was then read to Laughlin, who assented to its correctness by a signature, and by responding, ‘Yes/ in answer to a question as to whether he swore to it. The manner in which the instrument was made was not such as to render it inadmissible as the declaration of the deceased. Wharton, Crim. Ev. sec. 300; Com. v. Casey, supra [11 Cush. (Mass.) 417, 59 Am. Dec. 150] ; Murphy v. People, supra [37 Ill. 447] ; People v. Sanchez, supra [24 Cal. 17].”

Although a statement reduced to writing is not in the exact language used by the deceased, yet, if it clearly appears from all of the testimony in the case that the statement was made under circumstances rendering it admissible as a dying declaration and it was read over to and approved and signed by the deceased, it will be admissible in evidence. On this question in the case of State v. Kindle, 47 Ohio, 358, 24 N. E. 485, the Supreme Court of that state said:

“We are of opinion that in cases of homicide a statement of the injured person made in extremis, while conscious of his condition, and under a sense of impending dissolution, reduced to writing by a competent person, at the instance of the de-' clarant, or with his consent, approved and signed by him, containing statements of the circumstances of the unlawful act which results in death, after proper preliminary proof has been introduced, is admissible in evidence.”

In the ease of People v. Farmer, 77 Cal. 1, 18 Pac. 800, the Supreme Court of that state said:

“It would serve no good purpose to restate here the rules which govern the admissibility of dying declarations. They are well established and generally understood, and the difficulty always is in applying them to particular cases. It is sufficient to say in the case at bar that in our opinion the circumstances in proof warranted the court in admitting the declaration. And we do not think, as argued by counsel for appellant, that the correctness of the ruling is impeached by the fact that the scribe who reduced the statement to writing concluded it with these words: ‘In view of the probability of my dying, I make the above statement as my dying declaration/ The deceased was in too much pain to make a statement in a narrative form. It was taken by question and answer. It is quite -as likely that the word ‘probability’ .was suggested by the person who wrote it as that it originated with the deceased. At .all events, the condition of the declarant’s mind as to his apprehension of death must be determined from -all that was -said and done, and all the circumstances surrounding him, and not from a critical consideration of the exact meaning of a word used only once -during all the conversations. And, taking all the evidence into consideration, we think that it sufficiently appears that, when the statement was made, the deceased believed that he was about to die.”

See, also, Addington v. State, 8 Okla. Cr. 103, 130 Pac. 311; Ryan v. State, 8 Okla. Cr. 625, 129 Pac. 685; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030; Offitt v. State, 5 Okla. Cr. 48, 113 Pae. 554; Mulhey v. State, 5 Okla. Cr. 15, 113 Pac. 532; Blair v. State, 4 Okla. Cr. 360, 111 Pac. 1003; Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647; ‘Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561; Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163.

Second. Upon the trial of this cause, among other things, the court instructed the jury as follows:

“The information charges the highest degree of homicide or that of murder, but the charge therein embraces- all the lower degrees of homicide, but there is, in this case, no element of manslaughter in the second degree, nor of excusable homicide as the latter is defined by our statute.”

To this instruction appellant reserved an exception. Section 6851, Comp. Laws 1909, is >as follows:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in -addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to ithe court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused the court must indorse or sign its decision. If part of any written charge be given -and part refused the court must distinguish, showing by the indorsement or answer what part of each charge was given and what part refused.”

This makes it the duty of the trial court to give to the jury such instructions as the court may think necessary for their information in giving their verdict. This vests the matter of the instructions to be given in the discretion of the trial court. It is true that this discretion is subject to review upon appeal, but it will not be disturbed unless the record presents a clear case of abuse of discretion. No conviction should be reversed for the failure of the trial court to instruct upon any given issue, unless from the testimony in the case it 'appears that an honest and intelligent jury could legitimately arrive at a conclusion favorable to the defendant upon such issue. We fail to find any evidence in this record upon which an intelligent and honest jury could have convicted appellant of manslaughter in the second degree. The action of the trial court in giving the instruction complained of is therefore not error.

Third. Upon the trial of this cause, the court, among other things, instructed the jury as follows:

‘‘'Before the defendant could be found guilty of manslaughter in the first degree, you must believe from the evidence, beyond a reasonable doubt, that the homicide charged in the information was perpetrated by him by means of a dangerous weapon, in a heat of passion, but without a design to effect death, and that the same was not committed in self-defense, or under such circumstances as constitutes justifiable homicide, as defined in these instructions.”

To this instruction appellant excepted at the time. In support of the exception taken to this instruction, counsel for appellant in their brief say:

“The court will note from this instruction that the trial ’court .said to the jury that, before they would be warranted in finding the defendant guilty of manslaughter, they must find beyond a reasonable doubt that the homicide was perpetrated by him by means of a dangerous weapon in a heat of passion, which clearly placed the burden upon him to show that he committed the homicide in a sudden heat of passion, before the jury would be warranted in reducing the offense from murder to manslaughter, and, having previously eliminated from the consideration of the jury second-degree manslaughter, excusable homicide, and by inference justifiable homicide, this instruction certainly placed the burden upon the plaintiff in error to show that the homicide was committed without a design to effect death, and further that the same was not committed in self-defense, or under such circumstances as constitute justifiable homicide, as defined in these -instructions, and that all these thing's had to be found by the jury beyond a reasonable doubt before he could be found guilty of manslaughter. Had it not been for this instruction, we believe under the evidence in this ease that the jury would not have returned a verdict of murder in the first degree.”

The position of -counsel for -appellant is that this instruction required the jury to convict appellant of murder unless the jury should find from the evidence beyond a reasonable doubt that appellant -committed the homicide by means of a -dangerous weapon -and in a heat -of passion, and without a design to effect death, and not in self-defense,'-or under such circumstances as constituted justifiable homicide as defined in the instructions. In -assuming this position, counsel for appellant have not considered this instruction in connection with the other instructions given. The absurd -consequences which would result from this line of reasoning can be well illustrated by quoting three passages of Scripture without reference to the connection in which they are used. In -one place the Bible says: “Judas Iscariot went out and hanged himself.” In an-otser place the Bible says: “Go thou and do likewise.” In -another place the Bible says: “And all the people said Amen.” By selecting isolated passages without reference to the context and subject-matter, -counsel could easily dispose of the entire instructions given by the court. Instructions must 'be considered as a whole. All of their several parts must be' considered in connection with each other. The court had previously instructed the jury that, before appellant could be convicted of murder, they must find from the evidence beyond a reasonable doubt that he killed the -deceased with a premeditated design to effect his death, and that -such killing was nqt justifiable under the other instructions given, and that, if they entertained a reasonable doubt upon this 'subject from all the evidence in the case, they should find the defendant not guilty of murder. The court also instructed the jury as follows:

“If, from the evidence, facts, and circumstances in the case as disclosed upon the trial, you entertain a reasonable doubt of the guilt of the accused, it is your duty to give the defendant the benefit of that doubt and acquit him. If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either murder or manslaughter in the first degree, it is your duty to determine the particular crime of which he is guilty, and if you have a reasonable doubt whether the offense, if any, is murder, then it will be your duty to give the defendant the benefit of that doubt, and acquit him of that crime.”

The court again instructed the jury as follows:

“If you do • not find the defendant guilty of murder, you will next consider whether he is guilty of manslaughter in the first degree as defined in these instructions, and if you find, from the evidence, facts and circumstances, as disclosed upon the trial, beyond a reasonable doubt, that the defendant killed the said Anderson in a heat of passion by means of a dangerous weapon and without a design to effect his death, and you do not entertain a reasonable doubt from the evidence as to whether he was justified in taking the life of the deceased, you will find the defendant guilty of manslaughter in the first degree as charged in the information. If, however, you do not find the defendant guilty of murder, and you entertain a reasonable doubt as to his having killed the said Anderson in a heat of passion and by means of a dangerous weapon, without a design to effect his death, you will return a verdict of not guilty.”

Considering all of these instructions together, we think that they properly present the law of the case. Even if there was error in the instruction upon the subject of manslaughter, we do not think that appellant could be heard to complain thereat. Section 2271, Comp. Laws 1909 (Rev. Laws, 2316), is as follows:

“Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.”

The most that could .be said is that appellant was angry, and was more or less intoxicated when he fired the fatal shot. His own evidence makes it clear that he fired this shot with a premeditated design to effect the death of the deceased. His act was therefore murder, notwithstanding his anger and intoxication. Anger or voluntary intoxication when not of such a character as to render the mind incapable of forming a premeditated design to effect the death of the deceased or of some other human being will not reduce an unlawful killing from murder to manslaughter. This is the plain letter of our statute. Under this statute and the testimony in this case, the trial judge would have been entirely justifiable in not submitting the issue of manslaughter to the jury.

We find no error in the record. The judgment of the lower 'court is in all things affirmed.

AEMSTEONG, P. J., and DOYLE, J., concur.


author: ARMSTRONG, P. J.

text:
    J. M. McGLASSEN v. STATE.
    No. A-1506.
    Opinion Filed April 5, 1913.
    (130 Pac., 1174.)
    1. MALICIOUS MISCHIEF — What Constitutes. When personal property is defaced or destroyed, without malice, by. a person acting in good faith under the belief that it is his and that he has a legal right to do the act complained of, a charge of malicious mischief cannot be sustained.
    2. INDIANS — Lands Held in Common — Inclosure—Improvements—Removal. (a) Prior to allotment, the lands of the Choctaws and Chickasaws were held in common, and, until legislation providing for allotment was passed, any member of such tribes had a right to inclose and occupy any unoccupied portion of the lands belonging to his tribe.
    (b) A member of the Choctaw or Chickasaw Tribe, who was entitled to an allotment of 'the lands of said tribe, and who, after taking such allotment for himself and family, had improvements remaining on other lands, was entitled to remove the same or sell such improvements to other members of said tribe who were entitled to take allotment, or remove them, at his option.
    3. SAME — Crimes by Indians — What Constitutes — Evidence. A member of the Choctaw or Chickasaw Tribe, who at the time of allotment, had more lands inclosed than he and his family were entitled to take in allotment, and who removed fencing therefrom without knowing the same had been allotted, cannot be prosecuted for malicious mischief, under the statute.
    (Syllabus by the Court.)

      Error from Garter County 'Court; M. F. Winfrey, Judge.

      J. M. McGlassen was convicted of malicious mischief, and brings error.
    Eeversed and remanded.

      Sigler & Howard, for plaintiff in error.

      Ghas. West, Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, J. M. McGlassen, was convicted at the October, 1911, term of the county court of Carter county on a charge of malicious mischief.

The facts in this case show that McGlassen and his family were entitled -to allotments of the lands of the Choctaws and Chickasaws. That prior to allotment he had fenced certain lands. That, without his knowledge, the prosecuting witness, William Toby, was allotted a portion of the lands which had been fenced by the accused. That subsequent to the allotment of the land by Toby, and when the accused was still without information that the same had been allotted, he removed certain wire fences and posts from the premises, whereupon an information was filed against him at the instance of Toby, and this conviction resulted.

A number of errors are assigned by counsel for the accused, among others error of the court in refusing the following instruction :

“You are further instructed that if you believe, or have a reasonable doubt thereof, that the defendant, at the time he removed the fence, acted in good faith, believing he was the. owner thereof and had a right to so remove same, you are instructed that you should acquit the defendant.”

This instruction should have been given. This court said in the case of Colbert v. State, 7 Okla. Cr. 401, 124 Pac. 78:

“* * * An act will not constitute malicious mischief where it is done in good faith and under a reasonable claim of right. * * * In prosecutions for malicious mischief, malice toward the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass.
* * * The intent with which an act is done is material; and if it be shown that the defendant acted in good faith under a reasonable claim of right, the charge of malicious' mischief cannot be sustained. * * * ”

The doctrine upon which this case must stand or fall was thoroughly elucidated in the Colbert case, supra, and a complete discussion of the principles involved herein will there be found. The opinion in the Colbert case was handed down by this court subsequent to the trial of the case at bar. Prior to the Colbert decision, there had been no discussion of the statutes under which this prosecution was brought by this court, and this probably accounts for the fact that -this case is before us with the record in the condition in which it is.

The proof in this case indicates clearly that the fence and posts removed by the accused were the fruits of Iris honest labor, and that the prosecuting witness had never invested a single cent therein. That the accused believed he had a right to remove the fence and posts; and we are unable to see how any other reasonable man could hold a contrary view. The most the prosecuting witness would be entitled to, under the law, would be to maintain a civil action for the value of the fencing, and we think that is doubtful. He certainly would not be entitled to invoke the power of the state to prosecute the accused criminally. In equity and good conscience, he is not entitled to anything, and ought to be required to pay the cost of this prosecution.

The judgment is reversed, and the cause remanded, with direction to dismiss.

DOYLE and FURMAN, JJ., concur.